Publications

Greetings, Court Fans!

As we predicted last week, it was only a matter of time before the Court started issuing decisions in some of this term’s big cases. And today, we got one of the biggest: In New York State Rifle & Pistol Association v. Bruen (No. 20-843), an ideologically divided 6-3 Court held that New York’s concealed carry firearms regulations—which limit concealed carry licenses to those who can demonstrate “a special need for self-protection”—violate the Second Amendment. But while that case may get most of today’s media attention, it’s far from the only consequential decision of the day: The Court also held in Vega v. Tekoh (No. 21-499) that no cause of action exists under Section 1983 for police officers’ failure to give Miranda warnings; Berger v. North Carolina State Conference of the NAACP (No. 21-248) held that North Carolina legislative leaders can intervene in a law suit in order to defend a North Carolina law requiring photo ID to vote; and in Nance v. Ward (No. 21-439), a 5-4 Court (with Chief Justice Roberts and Justice Kavanaugh joining the Court’s three liberals) held that Section 1983 is an appropriate vehicle for state prisoners to challenge a state’s method of execution.

We’ll have summaries of those four cases shortly. In the meantime, we have write-ups of the last two of the Court’s decisions from Tuesday: United States v. Washington (No. 21-404) and United States v. Taylor (No. 20-1459).

Washington addresses the constitutionality of a 2018 Washington state workers’ compensation law that applies only to certain individuals who worked on the “Hanford site,” a site used by the United States during World War II to develop and produce nuclear weapons. A unanimous Court concluded this law violated the Supremacy Clause by facially discriminating against the federal government and its contractors in a context where Congress had not clearly and unambiguously waived the United States’ immunity.

As one might imagine, the nuclear activity on the Hanford site left it the worse for wear. After the Cold War, the government began a decades-long cleanup process, which required the involvement of federal contract workers (employees of private companies under contract with the federal government) and federal, state, and private employees. Washington’s 2018 workers’ compensation law applied only to federal contract workers at Hanford and made it easier for those workers to establish entitlement to workers’ compensation (such as by establishing a life-long causal presumption that the Hanford cleanup work caused certain diseases/illnesses). This increased workers’ compensation costs for the United States, since the federal government pays workers’ compensation claims for federal contractors at Hanford. The United States sued, arguing that the law discriminated against the federal government and violated the Supremacy Clause. After the lower courts disagreed, the Court granted cert.

A unanimous court reversed and remanded in an opinion written by Justice Breyer. Before addressing the merits, Breyer considered Washington’s argument that the state had mooted the case by enacting a new workers’ compensation statute after the Court had granted cert. That new law applied the previous statute’s causal presumption to all workers atradiological hazardous waste facilities, not just federal contract workers. But that didn’t moot the case, Breyer concluded, because finding the prior law unconstitutional would allow the United States to recover or avoid paying millions of dollars in workers’ compensation claims that were still pending. Washington contended that no it couldn’t, because the United States would still be required to pay these benefits under the newly enacted law, which Washington said applied retroactively. But courts are reluctant to apply laws retroactively and the Washington courts had yet to weigh in on that question. As a result, it was not “impossible” that the United States could recover money if the Court ruled in its favor. This possibility of the decision having an impact was enough to save the case from being moot.  

On the merits, Breyer began with the question of whether Washington’s law singled out the federal government or its contractors for less favorable treatment. This principle is part of the intergovernmental immunity doctrine, a Supremacy Clause doctrine dating back to McCulloch v. Maryland (1819). In its current formulation, a state law is not unconstitutional just because it indirectly increases the federal government’s costs. But if a law does so in a discriminatory manner (i.e., by singling out the federal government for less favorable treatment or regulating the federal government unfavorably on the basis of its governmental status), then it violates the Supremacy Clause unless Congress has consented to the regulation through a waiver.

The first step of the analysis was easy. Washington’s 2018 workers’ compensation law “explicitly treat[ed] federal workers differently than state or private workers” and, as a result, “impose[d] upon the Federal Government costs that state or private entities do not bear.” That’s about a clear a case of differential treatment as you could have. So Washington instead argued that this discriminatory treatment was fine because in 40 USC 3172(a) Congress had waived federal immunity from state workers’ compensation laws on federal lands and projects.

The Court disagreed. Section 3172(a) provides that a state authority “charged with enforcing and requiring compliance with the state workers’ compensation laws . . . may apply [those] laws” to federal lands and property within the state, “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” The Court interpreted Section 3172(a)’s waiver of immunity as authorizing the states to extend their generally applicable workers’ compensation laws to federal lands and projects within the state, not to single out and unfavorably treat the federal government. This reading was supported not only by the statutory language but also by the very purpose of the intergovernmental immunity doctrine: to prevent discrimination against the federal government. As Breyer asked rhetorically, “if discrimination is permissible here, what prevents Washington from bestowing a windfall upon its residents through an especially generous workers’ compensation scheme financed exclusively by the Federal Government?” After quickly disposing of Washington’s remaining arguments, the Court concluded that Washington’s 2018 workers’ compensation law was unconstitutional under the Supremacy Clause.

Our second case, Taylor, is the latest in a long line of decisions (so many we won’t even try to give you links) wrestling with the Court’s “categorial approach” to determining whether certain offenses are “crimes of violence” for the purposes of additional charges or sentencing enhancements. In this one, a seven-justice majority concluded that an attempted robbery in violation of the Hobbs Act is not a crime of violence, because one could commit that offense without using or threatening physical force.

Justin Taylor tried an armed robbery. Unfortunately for all concerned, the victim was shot and killed, while the perpetrators failed to take any money. Taylor pled guilty to violating the Hobbs Act, which makes it a federal crime to commit, attempt to commit, or conspire to commit a robbery with an interstate component, and to violating 18 U. S. C. 924(c), which provides additional penalties for using a firearm in connection with a “crime of violence.” Taylor was sentenced to twenty years for the Hobbs Act violation and an additional ten years for the Section 924(c) violation. At the time of sentencing, a “crime of violence” was defined either (i) as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (Section 924(c)(3)(A)’s so-called elements cause), or (ii) as an offense that “by its nature, involves a substantial risk that physical force . . . may be used” (Section 924(c)(3)(B)’s so-called residual clause). But in United States v. Davis, the Court struck down the residual clause as unconstitutionally vague. Soon after, Taylor filed a habeas petition to vacate his Section 924(c) conviction and sentence. The government opposed the petition, arguing that regardless of Davis, Taylor had still been convicted of a “crime of violence” under the elements clause. The Fourth Circuit disagreed, reasoning that the use, attempted use, or threatened use of force is not a required element of an attempted Hobbs Act robbery. That created a circuit split, so the Court granted cert.

In a 7-2 decision authored by Justice Gorsuch, the Court sided with Taylor and the Fourth Circuit. Because Section 924(c)(3)(A) defines a “crime of violence” by reference to its elements, courts must apply a “categorical approach” rather than looking to the facts of each particular case (an approach that obviously would not have been so great for Taylor). Here, even though a completed Hobbs Act robbery would unquestionably be a crime of violence, it is possible for an attempted Hobbs Act robbery not to involve the use, attempted use, or threatened use of physical force. Think, for example, of a defendant who intends to rob a store using a threatening note—and even takes the substantial step of preparing for the robbery by driving to the store—but is then stopped by the police before he actually threatens violence. Because that hypothetical defendant could be convicted of attempted Hobbs Act robbery without proof of any element of violence, the offense cannot be a “crime of violence” under the categorical approach. Gorsuch then made quick work of the government’s objections, particularly the government’s argument that the prosecutors only really go after attempted Hobbs Act cases when violence is actually involved (i.e., that the government wouldn’t bother with the Court’s hapless hypothetical defendant): “In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety. Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits. Congress tasked the courts with a much more straightforward job: Look at the elements of the underlying crime and ask whether they require the government to prove the use, attempted use, or threatened use of force.” That straightforward analysis meant that an attempted robbery is not a per se crime of violence, so Taylor is not subject to Section 924(c)(3)(A).

Justices Thomas and Alito each dissented. Looking backward, Thomas criticized the Court’s categorial approach jurisprudence as a “30-year excursion into the absurd” that exempted defendants who had committed unquestionably violent crimes (including the Boston Marathon bombing). He would have the Court overrule Davis, so that cases like Taylor’s—an attempted armed robbery that “by its nature, involves a substantial risk” of violence—would be covered by the residual clause. Looking forward, Alito suggested that in future cases, the government should argue that any offence in which “an” alternative element is the use, attempted use, or threatened use of physical force is a crime of violence, even if the offense could also be proved by establishing an alternative element that did not involve force.

That’s it for today. We’ll be back tomorrow with summaries of some of today’s decisions, as well as to tell you about the opinions the Court issues tomorrow morning.

Dave and Tadhg