The Supreme Court of the United States

In re B.385: the Death Penalty Abolition Reaffirmation Act

Case №20–16 101 M.S.Ct. 120

Cheatem, J., delivered the unanimous judgment of the Court.

This is not a complicated case. Contra In re B.385 — the Death Penalty Abolition Reaffirmation Act of 2019, №20–06 (Dixie 2020) (“This is a complicated case.”); see also In re: Executive Order 002: Reforms to Immigration Agencies, №20–07, 101 M.S.Ct. 117 n.6 (2017) (Cheatem, J., concurring in part and dissenting in part) (noting that In re B.385, №20–06 (Dixie 2020) is a “preposterous farce” that “flies in the face of well-established precedent”).

In 2019, through the Death Penalty Abolition Reaffirmation Act of 2019, the Dixie Assembly voted to prohibit the use of capital punishment in that state. See B.385 §§ 2, 3(a). In addition, the Assembly prohibited any any “officer or employee” of the state from “enabl[ing] or partak[ing] in an execution” or “shar[ing] any information with a state or foreign government when such information is liable to become evidence for the prosecution in a capital case.” Id. at § 3(b). The sole consequence for violation of this provision is “termination in a manner consistent with and [as] prescribed by applicable civil service laws.” Id. Furthermore, the Act prohibits the State Department of Corrections “from importing or purchasing” the drugs typically used in the lethal injection “for the purposes of executing an inmate.” Id. at § 3(c). Finally, the act directs the Department of Corrections to dismantle the instruments of execution by the end of 2019.

All of these provisions comport fully on their face with the requirements of our Constitution. Somehow, the Dixie Supreme Court concluded otherwise. How did the Supreme Court of Dixie get this case so very wrong? Let us count the ways.

I. Supposed “Conflicts With Other Laws”???

Respondent and the Court below suggest that the Act is “unconstitutional” because it purportedly conflicts with some law from the 19th century.[1] But a statute is not — and cannot be — unconstitutional merely because a court discerns some supposed conflict between the statute and a previously-enacted law. When two laws appear to conflict, we must read them in such a way, if possible, to give effect to both. But, when they are impossible to harmonize, it is the earlier law, not the later law, that is voided under the doctrine of repeal by implication. “While generally we must read two potentially conflicting statutes ‘to give effect to each . . . while preserving their sense and purpose,’ there is a limit to that rule: where the two acts are ‘irreconcilably conflicting.’” In re: Executive Order 002: Reforms to Immigration Agencies, No 20–07, 101 M.S.Ct. 117 (July 2020) (Cheatem, J., dissenting) (quoting Watt v. Alaska, 451 U.S. 259, 266–267 (1981)).

Taking the Dixie Supreme Court at its word, the previous statutes “cannot be made to conform with the one we are discussing at present — due to its inherent conflict.” Assuming, arguendo,[2] it is in fact true the laws are “irreconcilably conflicting,” Watt, 451 U.S. at 267, we must conclude that the old statutes conflicting with the Death Penalty Abolition Reaffirmation Act of 2019 have been repealed by implication.

Were we to agree with the Dixie Supreme Court that a law can be held “unconstitutional” simply because it conflicts with some older law, we would be frozen in the past. Repeals of old statutes are themselves laws, rendering them, by operation of the Dixie court’s logic, “unconstitutional.” Accordingly, in Dixieland — for example — marital rape laws would still be legal and there would be no means by which to alter that fact except by constitutional amendment.

This outcome, simultaneously nightmarish and comical in its stupidity, cannot be accepted and, thankfully, is directly contrary to all known case law. It is therefore unsurprising that neither Respondent nor the Dixie court was able to identify precedent in support of the proposition. Instead, the Dixie court’s sole authority is an unelaborated quotation from a 19th-century British case involving the Bishop of London. Its only other citation is a bizarre, irrelevant reference to South Park. In that spirit, we feel compelled to advise the Dixie Court, in a way it might be able to understand: if your only case citation is from more than a century ago, “you’re gonna have a bad time.”

II. The First Amendment????

The court below found, and Petitioner urges that we find, a violation of the right to free speech in the provision prohibiting state employees from “shar[ing] any information with a state or foreign government when such information is liable to become evidence for the prosecution in a capital case.” But there is no legal basis for finding this provision to be an infringement upon that right, and the court below erred in so finding.

The Act does not violate the First Amendment because “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). In short: there is no First Amendment right to say whatever you want when you speak on behalf of the government.

The Dixie Court erred when it relied on this same case to reach precisely the opposite conclusion. In support of its conclusion, the court below insisted: “Particularly when this act applies as a blanket proviso against cooperating with law enforcement, while during the working hours of that particular employee or otherwise. It does not matter if the employee is on vacation or assignment as part of their employment — the law holds that they will be terminated if possible.”

But this reading of the statute is fundamentally at odds with the basics of statutory interpretation. The doctrine of “constitutional doubt” requires us to construe a statute before us, “if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” In re: Executive Order 002: Reforms to Immigration Agencies, No 20–07, 101 M.S.Ct. 117 (July 2020) (Cheatem, J., dissenting) (quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)). See also Almendarez-Torres v. United States, 523 U.S. 224, 237–38 (1998); Jones v. United States, 529 U.S. 848, 857 (2000).

Here, there is indeed a “fair” reading of the statute that is constitutional — that it pertains to state employees in the course of the exercise of their official responsibilities. Respondent’s efforts to suggest otherwise lack basis in fact and law.

Regardless, Respondent brings a facial challenge to the Act, meaning that to prevail he must show that “no application of the statute would be constitutional.” Sabri v. United States, 541 U.S. 600, 609 (2004). Respondent has admitted that at least some applications of this provision would be constitutional. In fact, his best example of it being applied “unconstitutionally” involved preposterous scenarios with no realistic likelihood of occurrence. See Transcript of Oral Argument, In re Death Penalty Abolition Reaffirmation Act, Case №20–06 (Dix. 2020) (supposing that “[a]n employee of the Dixie Division of Emergency Management . . . was [sic] on a vacation in Tokyo, and decided to head to a bank to exchange some of his US Dollars for Yen”). Because Respondent admits that the challenged provision can be applied constitutionally, his facial challenge must fail automatically.

III. The Commerce Clause?????

The Dixie court also erred in holding a provision of the statute unconstitutional as a violation of the Commerce Clause, U.S. Const., Art. I § 8, specifically under the doctrine of the “Dormant Commerce Clause,” which prohibits states from discriminating against interstate or international commerce. Firm pass.

“[T]he Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace.” Reeves, Inc. v. Stake, 447 U.S. 429, 436–37 (1980). This is not what is happening here. The relevant section provides:

The State Department of Corrections is prohibited from importing or purchasing potassium chloride, pancuronium bromide and sodium thiopental for the purposes of executing an inmate . . . .

This section prohibits only the State Department of Corrections from “importing or purchasing” specific chemicals and only if it is doing so for “the purposes of executing an inmate.”

Respondent spills much ink over the use of the word “import” in the Act. If the Dormant Commerce Clause barred states from using the word “import,” there might be some hint of that in our precedent; but that is not what the Dormant Commerce Clause does. Rather, it prohibits discrimination against interstate and international commerce. On its face, the statute does not discriminate against anyone: it prohibits the state equally from acquiring the goods from in-state and out-of-state producers. Other courts have wisely upheld analogous statutes. For example, in In re: AB.087 — Community Health Act, №19–14 (A.C. May 23, 2020), the Atlantic Commonwealth Supreme Court upheld against constitutional challenge a complete prohibition on the import and sale of tobacco within the state. Even Respondent conceded, at argument, that there was no violation of the Dormant Commerce Clause in that ban.

Even if there were some discrimination against out of state commerce, however, the section still does not run afoul of the Constitution — it falls within the well-established “market participant” exception. Under that rule, the Dormant Commerce Clause does not apply when the state is acting not as a regulator but as a market participant, as it is here. White v. Mass. Council of Constr. Employers, 460 U.S. 204, 208 (1983) (“[W]hen a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause.”) “Nothing in the purposes animating the Commerce Clause prohibits a State . . . from participating in the market and exercising the right to favor its own citizens over others.” Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810 (1976). A state is acting as a “market participant” when it

Here, the state is prohibiting itself from purchasing certain goods for certain purposes. Accordingly, it is acting as a market participant and within its powers under our Constitution.

Respondent misguidedly, and erroneously, insists that the exception does not apply for three reasons.

First, Respondent contends that it does not apply because “interstate commerce is still impeded” because those who “sell to the drugs to the state” are unable to otherwise sell those drugs. This is, simply, factually incorrect: the Act does not prohibit the sale of drugs to anyone except one department of the state, and even then only when it is to be used for a particular purpose; manufacturers remain free to sell their wares to other states and governments. Respondent’s argument is also legally incorrect, as the “market participant” exception is focused on the role the state plays in the market, not the incidental effects of the state’s behavior. New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 277 (1988) (explaining that the market participant exception “differentiates between a State’s acting in its distinctive governmental capacity, and a State’s acting in the more general capacity of a market participant” (emphasis added)).

In Alexandria Scrap, we rejected an argument exactly like Respondent’s here. There, Maryland had itself entered into the scrap metal market in order to “[make] it more lucrative for unlicensed suppliers to dispose of their [scrap metal] in Maryland than take [it] outside the State.” 426 U.S. at 806–807. The petitioner contended that Maryland was acting as a “market participant,” “the entry by the State itself into the market as a purchaser . . . creates a burden upon that commerce if the State restricts its trade to its own citizens or businesses within the state.” Id. at 808–809. We rejected that argument then, and we reject the argument now. In short, the “downstream” results of a state’s participation in the market are irrelevant; holding otherwise would effectively eliminate the exception entirely.

Second, Respondent bizarrely appears to suggest that the exception is inapplicable because the state here is not “produc[ing] the drugs themselves [sic].” Respondent neither provides authority in support of his position on this nor reasoned explanation — understandably so, as the position is indefensible. As we explained in Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997), “a State acting in its proprietary capacity as a purchaser or seller may ‘favor its own citizens over others.’” Id. at 592–93 (emphasis added). In fact, in Alexandria Scrap, we found that when a state acts as a buyer — there, of scrap metal — it is acting as a market participant and therefore not constrained by the Dormant Commerce Clause. Alexandria Scrap, 426 U.S. at 808–10. Respondent does not explain how the instant case is any different, presumably because the instant case is not any different.

Third, for the first time, in his reply brief, Respondent claims that the exception does not apply because the State has chosen not to buy certain goods. This is simple pedantry. As the First Circuit has explained, a state qualifies as a “market participant” when it is “acting as a private company would act.” Antilles Cement Corp. v. Fortuño, 670 F.3d 310, 329 (1st Cir. 2012). “Private companies” routinely decide to decline to purchase goods. We see no reason why the State would be excluded from the “market participant” exception because it is deciding against, rather than for, a given purchase.

This argument is not only unpersuasive but actually highlights the contradictions within Respondent’s own position. For the Dormant Commerce Clause to apply at all, the State must be discriminating against out-of-state producers. If the State is discriminating against out-of-state producers then it necessarily must be favoring in-state producers (i.e., obtaining the goods from in-state producers).[3] And if that is the case, then the State is still affirmatively participating in the market, triggering the “market participant” exception. But if the state is, as Respondent now claims, not affirmatively participating in the market, that could only be because it is obtaining the goods from neither in-state nor out-of-state sources — i.e., not discriminating, and therefore not barred by the Dormant Commerce Clause. In either case, the State has not violated the Constitution.[4]

As the State is not discriminating against interstate commerce and acting as a market participant, there is no violation of the Dormant Commerce Clause afoot here.

IV. Conclusion

The state of Dixie has chosen to prohibit the use of the death penalty in the state. It has also chosen to take additional measures to guarantee that neither it nor its employees will be complicit in the administration of the death penalty elsewhere. It has done this in a manner consistent with the Constitution.

It is apparent that both Respondent here and the court below were eager to invalidate the law as politically misguided. Both are reminded that it is not the province of the judiciary to judge the wisdom of laws or to substitute our own political views for those of the elected branches. Indulging that desire will lead only to poorly-reasoned decisions and incoherent, rambling briefing, as evidenced throughout this case.

The decision of the Dixie Supreme Court is reversed.

It is so ordered.

Footnotes

[1] Because it is unclear whether this was a state or federal “constitutional” issue, we resolve the question on appeal.

[2] The Dixie court did not explain why or how the laws conflict.

[3] It is unclear how this would be possible under the law.

[4] Respondent may have raised other objections to the application of the market participant exception, but if he did raise them they were indiscernible and incoherent to this Court. Therefore, to the extent they exist, they are rejected.