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Today in the Community: October 27, 2011

Today in the Community the topic for discussion is arbitration – more specifically, the Supreme Court’s arbitration jurisprudence. 

It is of course well known that the Court – sometimes by a wide majority, and other times more narrowly – has repeatedly adhered to the position that arbitration agreements are enforceable in a wide variety of contexts.  One of our summer symposia this year addressed this topic.  You can see those pieces here.

Please participate and contribute your thoughts by joining the discussion here.  Instructions on registering as a member of the Community are available here.

Here are five of our favorite comments from yesterday:

Lee Gelernt

When foreign governments lodge official concerns about state laws in the U.S., it signals serious issues for our federal government and our national interests. As the Court has noted, the regulation of immigration is constitutionally vested in the federal government. One critical reason for this allocation of responsibility is the fact that immigration policy touches on the United States’ relations with other countries. If the United States believes that the recent anti-immigration laws passed in Arizona and other places harms our relations with other nations, that concern should not lightly be dismissed. Indeed, imagine if all 50 states adopted their own immigration laws and those laws not only conflicted with each other, but with the United States’ foreign policy objectives.

Larry Joseph

I do not think that the dispute between the “United States” and the States is as stark, from a federalism standpoint, as Lee Gelernt posits it. The question here is not whether the United States (i.e., Congress) could pass a law that preempts State actions like S.B. 1070. Rather the question is whether Congress did pass such a law. Foreign relations certainly are a concern of the Executive Branch, which Congress could take into consideration in enacting some future law. But current foreign concerns cannot serve as a canon of statutory construction for a previously enacted law. So, the foreign-relations (or political) concerns that underlie the Executive’s litigation strategy can have no relevance to the Court’s resolution of the merits. That said, foreign concerns and the Executive’s foreign-relations concerns could weigh on the Court’s decision on whether to grant cert.

Kevin Johnson

As I outlined in my contribution to the on-line symposium on United States v. Arizona, I am not sure how, if it grants certiorari, the Supreme Court will decide the case. It does seem to me, however, that the chances have improved over the last few months that the Court will grant cert.

The district court in United States v. Bentley, 2011 U.S. Dist. LEXIS 112362 (N.D. Ala. 2011) upheld provisions of the Alabama immigration law that the Ninth Circuit struck down in United States v. Arizona, including the provision requiring local police to check the immigration status of any person who they lawfully come into contact with about whom they have a “reasonable suspicion” is undocumented. A split of authority has emerged and may well soon emerge into a circuit split. Given the national importance of the issues and the emerging split of authority, Supreme Court review, in my view, seems more likely. It also would do much good for the Court to clarify the relative place of states in immigration regulation. State efforts to intervene in immigration matters seem on the rise, not decline.

Kali Borkoski raises important points. It seems to me that it is more powerful for the U.S. government, rather than a private party like the Chamber of Commerce in Chamber of Commerce v. Whiting, to be contending that a state is intruding on federal power and injuring federal interests. It also seems apparent that immigration (1) historically has touched on foreign policy interests of the United States and (2) that the objections of a slew of foreign countries to Arizona’s S.B. 1070 in fact supports the U.S. government’s contention that state immigration regulation can adversely affect U.S. foreign relations.

Fabio Arcila, Jr.

I want to talk about Orin Kerr’s position (here) that the GPS tracking in Jones should not be deemed a Fourth Amendment “search” because the Supreme Court should remain faithful to the inside/outside distinction underlying Knotts and Karo (the beeper cases), as well as his criticism of the mosaic theory (here) that the D.C. Circuit embraced to rule in Jones’s favor. Orin argues that the inside/outside distinction is a useful, easily applied standard, and that no ready alternative is available. He argues (correctly) that the inside/outside distinction is a bedrock Fourth Amendment principle, and thus it should hold sway here so as to avoid difficult line-drawing and provide sufficient clarity to law enforcement (namely, that it is free to engage at will in warrantless GPS tracking in public spaces, subject to possible limitations on installation of GPS devices). As for the mosaic theory, I think it’s fair to characterize his position as being that it is revolutionary and too amorphous and arbitrary, and that we would do better to reject it and instead simply apply the inside/outside distinction.

Orin’s reasoning sure feels like it sacrifices first principles in favor of judicial simplicity. In saying that, I mean to be purposefully provocative. Of course, a primary question is whether the GPS tracking in Jones violates first principles. But (hat tip to Colbert, whom I paraphrase) it sure feels “truthy” to declare that the Fourth Amendment must protect the public from round-the-clock location tracking surveillance by the state in any public space. (There’s a reason that Orwellian references have recently proliferated in case reports.) Admittedly, Colbert’s actual point is that truthiness is not a legitimacy standard, so further inquiry is required.

Here’s some: think about the potential for a pervasive surveillance state that flows directly from the United States’s arguments in Jones. The United States claims that it may engage in GPS tracking in public spaces without a warrant or the judicial oversight it provides; at its sole discretion and without probable cause or even any degree of suspicion whatsoever (it argues that it must have ready access to GPS data to establish probable cause); and that it may engage in such surveillance of anyone for as long as it pleases. (Has 10 years of surveillance shown nothing but innocent activity? Well, you never know what year 11 will show.) Implicit in these arguments is that there will be no judicial recourse for such surveillance (after all, there would be no Fourth Amendment violation, and almost certainly no tort except perhaps for trespass, but that is questionable, and in any event damages would still have to be shown and be large enough to justify the expense of a lawsuit).

Orin argues for application of a clear, historically well-established bright-line rule (the inside/outside distinction) to a never-before-seen context. But rules that worked well in the past might no longer work given changed circumstances, a particular concern when it comes to advancing technologies, with GPS tracking being a prime example. As David LeRoy points out above, police have not needed warrants to engage in physical surveillance; thus, the United States argues that it does not need a warrant for GPS tracking because it simply provides a different technique for engaging in the same surveillance. But GPS tracking is not just different in degree; it is different in kind. Physical surveillance could never achieve the same outcome as GPS tracking for at least three reasons. First, GPS tracking allows surveillance that is so pervasive and detailed that the government would be unable to achieve the same outcome in any other way due to the possibility of detection as well as resource-constraint issues (in terms of both cost and personnel). Second, GPS tracking does not require persistent human involvement, as do physical surveillance and beeper technology. Third, GPS tracking can access historical data from third-party service providers such as wireless carriers and thus can go back in time in a way that physical surveillance cannot (this possibility invokes the third party doctrine and is not at issue in Jones, but as I note in my blog post above is indirectly at stake).

Though the analytical simplicity Orin prefers is an alluring siren here, it leads us astray. Perhaps critics of my position find Orwellian concerns overly dramatic and misplaced. But it is analytically justified to ask what constitutional framework would avoid that potential outcome. There seem to be none. One of Orin’s critiques of the mosaic theory is that the point at which warrantless GPS tracking in public spaces becomes unconstitutional–when it changes from being brief (and allowed) to prolonged (and disallowed)–is arbitrary. I am not a fan of the mosaic theory, preferring instead the different-in-kind rationale explained in the preceding paragraph. But I will say that the same line-drawing difficulty Orin refers to also exists in defining when “routine” warrantless GPS tracking such as in Jones becomes so pervasive as to legitimately invoke Orwellian concerns. If line-drawing is to be avoided now, as Orin would have it, I see no basis for imposing it later, for the reason that Chief Judge Sentelle so pithily explained when he invoked the inside/outside distinction while dissenting from the denial of an en banc hearing in Jones before the D.C. Circuit: “The reasonable expectation of privacy as to a person’s movements on the highway is…zero. The sum of an infinite number of zero-value parts is also zero.” Thus, if Orin has his way, the resulting lack of Fourth Amendment protection extends right into the Orwellian nightmare. Our constitutional choice is to draw lines now, or not at all. Imposing a warrant requirement for GPS tracking would provide a clear, bright-line rule, which police could easily follow, and which would meaningfully protect the public from this sort of surveillance by regulating police discretion. Orin seems to agree that lines need to drawn (hence his call in his first linked post above for “a new privacy statute…to address both government and private-sector use of GPS surveillance”), but he does not see a basis for the judiciary imposing such lines through Fourth Amendment adjudication. Maybe it’s just me, but it would seem an awfully impotent Fourth Amendment that would not protect us from an Orwellian surveillance state in public spaces. But I don’t think it’s me that’s wrong; I think it’s them. Orin is willing to apply a portion of existing Fourth Amendment jurisprudence though it would offer no protection from an Orwellian outcome, rather than perceiving such a possibility as an indication that our Fourth Amendment jurisprudence is deficient and should be fixed. The Supreme Court has the opportunity to start that project in Jones.


Orin Kerr

Fabio, you present the issue as being about first principles versus judicial simplicity, but I don’t think that’s right. Rather, the issue is which set of first principles to follow: (1) the outside/inside distinction that you recognize as the traditional bedrock of Fourth Amendment law, or (2) the principle that we should construe the Fourth Amendment in a way that ensures that the hypothetical you fear does not come to pass.

One difficulty with adopting the latter principle is that it requires a lot of assumptions for it to be viable. You have to assume that (a) the installation of the device is a not a search or seizure (QP2), (b) legislatures do not have any interest in legislating use of GPS devices, and (c) there is no public objection to the Orwellian practices you describe. If any of those assumptions are wrong, then your Orwellian hypo falls flat. So it seems to me that you have to make the case on (a), (b), and (c) before you can establish that alternate principle (2) as realistic; only then is it really useful to debate whether the Court should adopt principle (1) or principle (2).

Recommended Citation: Tom Goldstein, Today in the Community: October 27, 2011, SCOTUSblog (Oct. 27, 2011, 9:33 AM),