Reply Brief — Reisch v. Sisney

RECORD

AND Suprome rT US

BRIEFS a

MAY 3- 2010 |

OFFICE OF THE CLERK

No. 09-953

|

|

In The

Supreme Court of the Gnited States

TIM REISCH, et al.,

Cross-Petitioners,

Vv.

CHARLES E. SISNEY; JAMES DEAN VAN WYHE;

and UNITED STATES OF AMERICA,

Cross-Respondents.

On Cross-Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

Cross-Petitioners’ Reply Brief in Support

of Conditional Cross-Petition

for a Writ of Certiorari

James E. Moore John C. Eastman

Woops, FULLER, Counsel of Record

SHULTZ & SMITH 840 E. 37th Street

300 S. Phillips Ave. Long Beach, CA 90807

P.O. Box 5027 (562) 426-1934

Sioux Falls, SD 57117 jeastman@chapman.edu

(605) 978-0613

Counsel for Cross-Petitioners

Library of Congress

Las. Liorary

QUESTION PRESENTED

i. Whether federal spending for state prisons vi-

olates the “general Welfare” limitation of the

Spending Clause, and this Court’s precedent in

United States v. Butler and South Dakota v.

Dole, because it constitutes spending for local,

rather than national purposes, and because it

intrudes upon the states’ police power, which is

a core function of government, traditionally re-

served to the states?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

REASONS FOR GRANTING THE WRIT

|. The Lack of a Circuit Split Is Not Grounds For

Denying Certiorari When The Circuit Courts

Have Decided An Important Issue Of Federal

Law Either Contrary To Pnor Decisions Of This

Court Or As Yet Undecided By This Court

. The Circuit Courts Have Misconstrued Dole And

The Cases Upon Which It Relies. .................ssccecsseeseees 5)

A. The federal spending program, not just the

regulatory conditions, must further the

“general welfare.”

B. Deference to congressional determination of

“welfare” does not negate the need to draw a

line between “general” and local welfare

CONCLUSION

ill

TABLE OF AUTHORITIES

CASES

Benning v. Georgia,

301 F.3d 1200 (1ith Cir. 2004).............0..0...0.000 3, 4

Cutter v. Wilkinson,

423 F.3d 579 (6th Cir. 2005).............0.00008. 2,3, 4,7

Dewey v. Des Moines, 173 U.S. 193, 198 (1899)........ l

Gonzaga Univ. v. Doe,

BN I Oe I occa esiecccuasanae scecenontersntennesnnecne 10

Helvering v. Davis,

SE a NR ES cscs cravesnsvecdeaseersicccssinisens passim

Madison v. Virginia,

ee ee Ee a) |) ne 3

Mayweathers v. Newland,

314 F.3d 1062 (9th Cir. 2002)........... baa nueiatasceeeis 3, 4

Preiser v. Rodrigeuz,

AL1 U.S. 475 (1973) -occccccccccecccceceseseeceseceseseeseseevseees 10

Sabri v. United States,

ee a iis cacarcviackchuanuvniSaveconioundaeiens 6

Shalala v. Illinots Council on Long Term Care,

ne i I uns can y cas naxcahciacansinacakananighakntis. 7

Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009),

petition for certiorari filed, 77 USLW 3657

(May 22, 2008) (NO. 08-1438) .............:00c.c00ccec0es00500. 4

South Dakota v. Dole,

We re To cenns sak ccvnswadesstueccancstnrnvars passim

United States v. Butler,

OOPS 1088 nce 1, 4,6, 8

LV

United States v. Lopez,

514 U.S. 549 (1995) ooo ccccccecceccececcserecesesevsescesesevevseeee 9

REASONS FOR GRANTING THE WRIT

I. The Lack of a Circuit Split Is.Not Grounds

For Denying Certiorari When The Circuit

Courts Have Decided An Important Issue Of

Federal Law Either Contrary To Prior De-

cisions Of This Court Or As Yet Undecided

By This Court.

Neither Respondent identifies any problems with

this case serving as a vehicle for addressing the sig-

nificant constitutional question presented by the

cross-petition for writ of certiorari.1 Rather, Res-

pondents the United States and Charles Sisney both

‘ Sisney does contend that because the petition includes

historical references not cited below, certiorari is not war-

ranted. Sisney BIO, at 28. This Court considers whether the

issue was raised below, not whether all of the arguments in

support of the issue were marshaled. Dewey v. Des Moines, 173

U.S. 193, 198 (1899). There is no question that the issue

whether RLUIPA was a valid exercise of Congress’ spending

power was properly raised and also decided below. Pet. App.

14a. Sisney further contends that the cross-petition argues

that the Spending Power is limited to advancing the other pow-

ers delegated to Congress in Article I, Section 8 of the Constitu-

tion, which he contends was not only not raised below but is

foreclosed by this Court’s decision in United States v. Butler,

297 U.S. 1 (1936). Jd. at 28, 34 n.5. Sisney misunderstands the

argument in the cross-petition, which is ultimately based not

on the Madisonian view of the Spending Power rejected in But-

ler, but on the Hamiltonian view adopted in Butler. Cross-Pet.

at 19-20. Hamilton recognized that spending must be “general,

and not local.” Butler, 297 U.S., at 67. That potnt was pressed

by cross-petitioners below, but rejected. Pet. App. l6a. It is

required by South Dakota v. Dole, 483 U.S. 203 (1987), and,

more explicitly, by Helvertng v. Davis, 301 US. 619 (1937).

There is no vehicle problem here.

contend in their respective briefs in opposition that

the decision of the Eighth Circuit was correct and

that, “[aJbsent a split among the circuits, ... review

by this Court is not warranted.” Brief in Opposition

of Respondent Sisney (“Sisney BIO”) at 22; see also

Brief of the United States in Opposition (“U.S. BIO”)

at 4 (contending that lack of a circuit split is alone a

sufficient reason to deny the petition). There is of

course another ground for considering certiorari,

recognized by Respondent Sisney but not addressed

by Respondent United States, namely, that this

Court will consider granting certiorari when a lower

court “has decided an important question of federal

law that has not been, but should be, settled by this

Court, or has decided an important federal question

in a way that conflicts with relevant decisions of this

Court.” Rule 10(c). Contrary to Respondent Sisney’s

assertion, both of those grounds pertain here.

The United States notes that six Circuit Courts of

Appeal have upheld Section 3 of RLUIPA as a valid

exercise of Congress’ Spending Power, but none of

those courts have given the matter serious treat-

ment. Indeed, in two of the cases, the argument that

the federal spending at issue exceeded Congress’

power to spend for the “general welfare”’—the first

necessary element articulated by this Court in Dole

and the only element challenged by this cross-

petition—was not raised by the parties and therefore

not addressed by the courts in any but the most con-

clusory manner. See Cutter v. Wilkinson, 423 F.3d

579, 585 (6th Cir. 2005) (“The prison officials do not

explicitly contend that RLUIPA violates the first

Dole limitation”); Benning v. Georgia, 391 F.3d 1299,

9

VU

1305 (11th Cir. 2004) (the state “does not dispute

that RLUIPA serves the general welfare”).

The analysis by the circuit courts in cases where

the issue was raised by the state is no more substan-

tial. In Madison v. Virginia, the Fourth Circuit’s

analysis of Virginia’s Spending Clause challenge

consists of a single sentence:

Here, Congress sought to protect prisoners’ re-

ligious liberty from unjustified and substantial

burdens, see Cutter, and we have no trouble

concluding that RLUIPA’s “attempt to protect

prisoners’ religious rights and to promote the

rehabilitation of prisoners falls squarely with-

in Congress’ pursuit of the general welfare.”

Charles.

474 F.3d 118, 125 (4th Cir. 2006). The Seventh Cir-

cuit’s analysis in Charles v. Verhagen, 348 F.3d 601

(7th Cir. 2003), is but a single paragraph, most of

which is devoted to summarizing the Ninth Circuit’s

two-paragraph decision in Mayweathers v. Newland,

314 F.3d 1062 (9th Cir. 2002). The opinion closes

with the same ipse dixit relied upon by the Fourth

Circuit:

Given the Supreme Court’s directive to defer

substantially to Congress’ judgment, we agree

with the Ninth Circuit that RLUIPA’s attempt

to protect prisoners’ religious rights and to

promote the rehabilitation of prisoners falls

squarely within Congress’ pursuit of the gen-

eral welfare under its Spending Clause au-

thority.

348 F.3d, at 607. See also Mayweathers, 314 F.3d, at

1066 (“protecting religious worship in institutions

from substantial and illegitimate burdens does pro-

mote the general welfare’). Although not cited by

the United States, the Fifth Circuit has also con-

cluded that Section 3 of RLUIPA “was passed pur-

suant to the Spending Clause,” without any analysis

whether it was valid under that clause. Sossamon v.

Texas, 560 F.3d 316, 328 (5th Cir. 2009), petition for

certiorari filed, 77 USLW 3657 (May 22, 2009) (NO.

08-1438).

Only in the first of these cases—the Ninth Cir-

cuit’s decision in Mayweathers—was a petition for

certiorari even filed. Alameida v. Mayweathers, 540

U.S. 815 (2003). The States did not seek certiorari

in Madison, Cutter, Charles, or Benning, and the

Spending Ciause challenge is not at issue in the peti-

tion for certiorari pending before this Court in Sos-

samon. In short, the circuit courts are well on their

way to having completely decided an important issue

of federal constitutional law that either conflicts

with the prior decisions of this Court in Dole, Helver-

ing, and Butler or, at the very least, has not been de-

cided by this Court but ought to be. That a seventh

circuit court has now weighed in on the issue,

“adopt[ing] the reasoning set forth in those cases

{scant as it was] with little to add,” Pet. App. 14a,

strengthens rather than weakens the argument for

granting the petition for a writ of certiorari in this

case. There is very little percolation of the issue yet

to be had.

Il. The Circuit Courts Have Misconstrued Dole

And The Cases Upon Which It Relies.

From what little analysis there has been regard-

ing the Spending Clause challenge to RLUIPA, it is

clear that the lower courts have uniformly made two

fundamental errors in how they have applied the

first prong of this Court’s analysis in Dole. First,

they have focused exclusively on the conditional reg-

ulations rather than on the underlying spending,

and second, they have deferred to Congress not just

on what constitutes “welfare,” but on whether that

welfare is “general” or “local.” Those analytical er-

rors, perhaps grounded in ambiguity in this Court’s

decision in Dole, warrant review and correction by

this Court, less a critically importation limitation on

the power of Congress be rendered null.

A. The federal spending program, not just

the regulatory conditions, must further

the “general welfare.”

The first fundamental error committed by the cir-

cuit court below (and by the other courts it followed)

is in looking exclusively at whether the regulations

contained in RLUIPA further the general welfare,

whereas the Dole analysis requires that the spend-

ing to which the regulations are attached also be in

furtherance of the general welfare. As the Solicitor

General herself recognizes, RLUIPA is not a spend-

ing statute, but one that ties new regulations to pre-

viously enacted spending statutes. U.S. BIO, at 6.

By focusing exclusively on whether RLUIPA, rather

than federal spending on state prisons, furthers the

general welfare, the courts below have misapplied

Dole, in which this Court looked first to “whether a

particular expenditure is intended to serve general

public purposes... .” 483 US., at 207 (citing Hel-

vering, 301 U.S., at 640, 645) (emphasis added).

As the citation to Helvering makes clear, the first

focus must be on the spending itself rather than on

the conditions attached to the spending. See Helver-

ing, 301 U.S., at 640 (“Congress may spend money in

aid of the ‘general welfare”) (emphasis added); td., at

645 (discussing “[w]hen money is spent to promote

the general welfare”); see also Sabri v. United States,

541 U.S. 600, 605 (2004) (“Congress has authority

under the Spending Clause to appropriate federal

moneys to promote the general welfare’); Butler, 297

U.S., at 64 (“The view that the clause grants power

to provide for the general welfare, independently of

the taxing power, has never been authoritatively ac-

cepted”).

Because there was no question in Dole that the

“general” or national welfare was furthered by fed-

eral spending for the interstate highway system,

which was the federal spending underpinning the

national drinking age regulation at issue in the case,

the Dole Court proceeded directly to consider wheth-

er the drinking age regulations themselves furthered

the general welfare. Dole, 483 U.S., at 208. There is

no suggestion in Dole that this Court was eliminat-

ing the need for the underlying spending to also be

in furtherance of the “general welfare” as a neces-

sary precondition for conditional regulation tied to

that spending. That would have overruled Helvering

and Butler, and as this Court has frequently cau-

tioned, it “does not normaily overturn, or so dramati-

cally limit, earlier authority sub silentio.” Shalala v.

Illinois Council on Long Term Care, 529 U.S. 1, 17

(ZUU0U).

B. Deference to congressional determina-

tion of “welfare” does not negate the

need to draw a line between “general”

and local welfare.

The second error committed by the lower courts is

In assuming that the nearly unconstrained deference

the Dole Court gave to Congress to determine what

qualifies as “welfare” also extends to whether that

welfare is in the “general” or “national” as opposed to

merely “local” or “particular” welfare. Compare Dole,

483 U.S., at 208 (“the concept of welfare or the oppo-

site is shaped by Congress”) (emphasis added) with

Cutter, 423 F.3d, at 585 (“In Dole, the Supreme

Court instructed the lower courts to “defer substan-

tially to the judgment of Congress” in deciding what

constitutes “the general welfare,” going so far as to

suggest that the “general welfare” restriction might

not be “judicially enforceable . .. at all”) (internal ci

tations omitted).

The confusion of the lower courts is perhaps un-

derstandable because Dole itself used the terms

“general welfare” and “welfare” somewhat inter-

changeably, and only gave a nod to the issue under

consideration here by citation to Helvering. Never-

theless, the issue is critically important to the mean-

ing of the Spending Clause and to the very idea of

limited government reflected in our Constitution and

so frequently given voice by this Court. What qual:

fies as “welfare” in the “general welfare’ formulation

may well be a judicially unenforceable line, see Dole

483 U.S., at 207 n.2, but whether something is na-

tional or instead merely local in scope certainly ts

not. “The line must still be drawn between one wel-

fare and another, between particular and general.”

Helvering, 301 U.S., at 640-41 (cited in Dole, 483

U.S., at 207)

Spending for the “particular” or local welfare is

unconstitutional, while spending for the “general” or

national welfare is permissible. Although the Hel-

vering Court said it would defer to Congress on close

questions—the “middle ground” or “penumbra” be-

tween the two—it did not abdicate its responsibility

of enforcing the constitution’s prohibition on spend-

ing for the “particular” welfare, where “the choice”

by Congress “is clearly wrong, a display of.arbitrary

power, not an exercise of judgment.” Jd., at 640

That responsibility was abdicated by the court be-

low, however, when it afforded unconstrained defe

rence to Congress to determine both, components of

the “general welfare” limitation on the spending

power, failing to even consider, much less draw, a

line between “general” and “local” welfare. Sisney

himself contends that such hne-drawing is some-

thing “that the Constitution does not contemplate,”

Sisney BIO, at 36, yet for that proposition he cites a

law review article by Professor Erwin Chemerinsky,

not this Court’s governing precedent in Helvering to

the contrary. The unconstrained deference to the

exercise of congressional power advocated by Sisney

would result in no limitation on the power whatsoev-

er, a theory of the Constitution that has repeatedly

been rejected by this Court. See, e.g., Dole, 483 US..,

at 207 (“The spending power is of course not unli-

mited”); Butler, 297 U.S., at 66 (“the power to spend

[is] subject to limitations”); cf. United States v. Lo-

pez, 514 U.S. 549, 556 (1995) (noting that even the

“modern-era precedents which have expanded con-

| >i ‘

eressional power under the Commerce Clause con-

firm that this power is subject to outer limits”).¢

Spending for local prisons may well be-the quin-

tessential program that is local and not national

State prisons do not move in interstate commerce

nor do they affect other states, and their operation is

one of the most core aspects of state sovereignty. If

“[t}he line must still be drawn between one welfare

and another, between particular and general,”

Helvering says that it must, the lower courts in ab

andoning that line have “decided an important fed-

eral question 1n a way that conflicts with relevant

decisions of this Court,” or at the very least have

“decided an important question of federal law that

has not been, but should be, settled by this Court.”

Rule 10(c). Certiorar is certainly warranted to ad-

dress whether the line that Helveritng said “must be

drawn’ has properly been abandoned by the lower

courts.

as

Respondent Sisney concedes that the lower courts

have not attempted to draw the line between local

and national. Sisney BIO, at 36. But far from coun-

seling against review by this Court, that acknowled

gement of the lower courts’ failure to comply with

2 Sisney misunderstands our reliance on Commerce Clause

precedents. Sisney BIO, at 31-32. The position we advanced is

not that Congress cannot use conditional spending to regulate

ends beyond the other enumerated powers, but rather that the

Spending Clause itself, hke the Commerce Clause, contains

limits on federal power. Cross-Pet. at 5-8

_—

—

C

Helvering compels review so that this Court can at

least reassert that the line “must be drawn,” clarify-

ing any ambiguity in Dole that. has led to contrary

interpretations of the Spending Clause. See, e.g.,

Gonzaga Univ. v. Doe, 536 U.S. 273, 278 (2002) (not-

ing that certiorari was granted in part “to resolve

any ambiguity” in this Court’s own opinions). Be-

cause the federal spending at issue here is so quin-

tessentially local and intrudes on such a core aspect

of state sovereignty as the management of state

prisons, Preiser v. Rodrigeuz, 411 U.S. 475, 491-92

(1973), more than that should not be required, but if

it is, a remand for line-drawing in the first instance

by the lower courts would be the appropriate out-

come, not a denial of certiorari.*

} Sisney urges the Court to await a case until interference

with core state sovereignty has been developed via evidentiary

facts. Sisney BIO, at 34n.5. Intrusions on something as core a

function of state sovereignty as the running of a state prison

should not require an evidentiary record. Kes ipsa loquitur

LJ

CONCLUSION

For the reasons noted above and previously in the

cross-petition, this Court should grant the cross-

petition for writ of certiorari and use this case as an

opportunity to clarify the scope and enforceability of

the limits on Congress’ Spending Clause power.

Respectfully submitted

James E. Moore John C. Eastman

Woops, FULLER, Counsel of Record

SHULTZ & SMITH 840 E. 37th Street

300 S. Phillips Ave. Long Beach, CA 90807

P.O. Box 5027 (562) 426-1934

Sioux Falls, SD 57117 jeastman@chapman.edu

(605) 978-0613

Counsel for Cross-Petitioners