Advance The Journal of ACS Issue Briefs TABLE OF CONTENTS 1 Introduction The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond 3 Richard Briffault, Nestor Davidson, Paul A. Diller, Olatunde Johnson, and Richard C. Schragger Curbing Excessive Force: A Primer on Barriers to Police Accountability 23 Kami N. Chavis and Conor Degnan Access to Data Across Borders: The Critical Role for Congress to Play Now 45 Jennifer Daskal Expanding Voting Rights Through Local Law 59 Joshua A. Douglas Sex Discrimination Law and LGBT Equality 77 Katie R. Eyer Troubling Legislative Agendas: Leveraging Women’s Health Against Women’s Reproductive Rights 93 Michele Goodwin Coming to Terms with Term Limits: Fixing the Downward Spiral of Supreme Court Appointments 107 Kermit Roosevelt III and Ruth-Helen Vassilas A Pragmatic Approach to Challenging Felon Disenfranchisement Laws 121 Avner Shapiro The Bivens Term: Why the Supreme Court Should Reinvigorate Damages Suits Against Federal Officers 135 Stephen I. Vladeck Restoring the Balance Between Secrecy and Transparency: 143 The Prosecution of National Security Leaks Under the Espionage Act Christina E. Wells Parallel State Duties: Ninth Circuit Class Actions Premised on Violations of FDCA Reporting Requirements 159 Connor Karen ACS BOARD OF DIRECTORS Debo P. Adegbile David C. Frederick Ngozi Nezianya, Student Christina Beeler, Student Caroline Fredrickson, Board Member, Board Member, ACS President Northwestern University of Houston Ruben Garcia School of Law Law Center Nancy Gertner Ricki Seidman Nicole G. Berner Reuben A. Guttman Marc Seltzer Elise Boddie Keith M. Harper Cliff Sloan, Chair Timothy W. Burns Christopher Kang Dawn L. Smalls Mark Califano Pamela S. Karlan Paul M. Smith Erwin Chemerinsky Brad S. Karp David A. Strauss Michael J. Faris Hon. Tim Lewis Christine A. Varney Julie Fernandes William P. Marshall Donald B. Verrilli, Jr. Steve Fineman Adam Winkler ACS BOARD OF ADVISORS Brooksley E. Born Faith E. Gay James T. O’Hara David M. Brodsky Linda Greenhouse Robert Post Elizabeth J. Cabraser Dennis Herrera Judith Scott Myron M. Cherry Dawn Johnsen Ted Shaw Drew S. Days III Ronald Klain Reva Siegel Walter E. Dellinger III Geoffrey Klineberg Geoffrey Stone Karen Dunn Victor Kovner Stephen D. Susman Peter B. Edelman Judith Lichtman Dan Tokaji Christopher Edley, Jr. Frank I. Michelman Jay W. Eisenhofer Spencer Overton ACS BOARD OF ACADEMIC ADVISORS Kate Andrias Linda Greenhouse Reva Siegel Erwin Chemerinsky Dawn Johnsen Ganesh Sitaraman Justin Driver Pamela S. Karlan David A. Strauss Joseph R. Fishkin William P. Marshall Mark Tushnet Ruben Garcia Allegra McLeod Stephen I. Vladeck Nancy Gertner Douglas NeJaime Adam Winkler Jamal Greene Neil S. Siegel The Journal of ACS Issue Briefs 1 Advance dvance, the Journal of the Issue Briefs of the American Constitution Society for Law and Policy (ACS), is published annually. Our mission is to promote the vitality of the U.S. Constitution and the fundamental Avalues it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law. Each issue of Advance features a collection of articles that emanate from the work of ACS’s network of scholars, advocates and practitioners, and features a selection of Issue Briefs written for ACS in the preceding year on a variety of topics. ACS Issue Briefs—those included in Advance as well as others available at www.acslaw.org—are intended to offer substantive analysis of legal or policy issues in a form that is easily accessible to practitioners, policymakers and the general public. Some Issue Briefs tackle the high-profile issues of the day, while others take a longer view of the law, but all are intended to enliven and enrich debate in their respective areas. ACS encourages its members to make their voices heard, and we invite those interested in writing an Issue Brief to contact us. We are pleased this year to include an article by Connor Karen, the winner of the second annual American Association for Justice Class Action Litigation Group National Law Student Writing Competition. We hope you find this issue’s articles, which span a range of topics, engaging and edifying. The Journal of ACS Issue Briefs 3 The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond* Richard Briffault, Nestor Davidson, Paul A. Diller, Olatunde Johnson, and Richard C. Schragger n an era of paralysis and increasingly bitter partisan conflict at the national level, cities have become a critical source of innovation across a wide array of policy areas that advance inclusion, equitable opportunity, and social justice. In recent Iyears, cities and other local governments have taken the lead in enacting minimum wage and paid sick leave policies, expanding the boundaries of civil rights, responding to emerging environmental threats, tackling public health challenges, and advancing other important progressive goals. Increasingly, however, states have been working to shut down this local innovation through legislation that either overrides—“preempts”—local policies or withdraws authority from local governments. North Carolina’s success in blocking the city of Charlotte’s ordinance extending municipal non-discrimination protections to gay, les- bian, bisexual and transgender people appropriately sparked national outrage, but it is only one high-profile example. States have left almost no area of local policy free from preemption—increasingly expressing political differences through a legal tool originally designed to protect legitimate state interests in uniformity and to police against truly recalcitrant localities. The trend toward intrusive state oversight has been most notable in—but is by no means exclusive to—states with conservative state governments that are home to progressive cities, and these conflicts have been growing in recent years. As troubling as the current wave of preemption has been, states are also now edging into new, uncharted legal territory by seeking to punish cities and even individual local officials who defy them. States have adopted statutes that threaten to withhold funding and expose cities to private liability in preemption conflicts as well as enacted laws that seek to impose personal civil penalties—and in some instances, even potential criminal liability—on mayors, city council members, police chiefs and other local officials who defy state legislation. In the face of all of this, some cities, officials, and citizens have been fighting back, defending against preemption with claims based on state constitutional “home rule” immunity, state constitutional constraints on unfairly targeting local governments, as well as federal equal protection, due process, and other constitutional arguments. Despite their limited formal authority, cities have sometimes been successful in pro- tecting local democracy. Overall, while the legal structure of intrastate preemption does not favor cities, given the contemporary landscape of increasing state hostility, there is an urgency to thinking creatively about new legal arguments, as well as build- ing on instances of successful local advocacy, where they can be found. * This Issue Brief was initially published in September 2017. 4 Advance The Journal of ACS Issue Briefs 5 This Issue Brief canvasses the current wave of preemption and the primary legal Within the basic framework of home rule, important features vary by state. First, theories that these state-local conflicts present, as well as claims that might arise as home rule regimes can be rooted in the state constitution, defined by state statute, or these battles continue.1 The Brief also explores other possibilities for strengthening derived from a hybrid model, with the state constitution structuring home rule but home rule to advance progressive local policymaking at a moment when cities increas- leaving it to the legislature to elaborate. Similarly, in some states, the state constitution ingly stand on the front lines of economic justice, civil rights, sustainable development, authorizes, but does not compel, the legislature to create a system of home rule for and so many other critical policy domains. municipalities.6 In some states, the judiciary has interpreted state statutes delegating Of course, preemption can be an important progressive tool for states to check broad power to local entities as implicitly rejecting an older, restrictive rule of construc- local parochialism, as fights over exclusionary zoning have amply demonstrated. Any tion.7 In other states, the state legislation granting power to local governments makes legal strategy to bolster local democracy must be calibrated to take into account this clear that this restrictive view no longer applies.8 Constitutional home rule is generally countervailing concern so that strong federal and state laws on civil, labor, environ- more protective of local authority than statutory delegations, both because it is harder mental and other rights remain an important baseline that localities cannot undermine. to amend state constitutions and, of course, because constitutions trump statutes. That said, the current wave of preemption has all too often focused on displacing Whether constitutional or statutory, home rule provisions generally delegate pre- progressive local policy innovation. sumptive power to local governments across a broad swath of subjects, often with limitations over specific subject matters, such as the power to tax or