tv Gamble v. United States Oral Argument CSPAN December 10, 2018 2:11pm-3:31pm EST
>> when the new house -- congress take office in january, it'll have the youngest, most diverse class in history. watch live on c-span starting january 3. >> up next, a supreme court oral argument in the case gamble vs. the united states, at issue is whether someone can be trind different charges by a state government and the federal government for the same crime. the case was brought by an alabama man trieded on state and federal charges for being a felon being in possession of a firearm.
>> may it please the court, the accept rot sovereigns exception to the double jeopardy chaws is n conflict with the original meaning of the clause. there is no exception in english history or the american history for the first century of avenue the framing. there's also a mountain of affirmative evidence that even a reign acquittal -- >> your leading authority is a foreign prosecution. in england of the -- in the spanish case. and the argument aside which has some traction, i think is that it would be quite unusual or surprising for the new american
republic to look to europe in a question like that because one concern that applies both in the english situation as well is that it would be a significant intrusion on sovereignty, of particular concern of the new american republic, to allow a foreign prosecution to limit the authority of the united states. frankly, it's surprising even in the english case. i mean the relations between spain and england were not exactly the best. if it were a spanish case involving the murder of englishmen, would the english court say, well, tried in spain so our hands are tied? >> there's overwhelming evidence that this -- that that is the english rule and no dispute that the framers were incorporating english practice into the double jeopardy cause. >> any country in the world? >> any country in the world?
>> if they say a prior criminal proceedings is an acquittal or conviction any country in the world that would count? >> so there are few requirements. one, it would have to be the same offense, so you'd have to meet the english standard which is in fact the standard of this court today. >> i thought when i read your brief, well, you're absolutely right. . t then i read the other side and now i'm not going to say you're absolutely wrong but three times the court has considered your argument, looked at those cases, the english case, hutchinson, later cases refer to it, there was a complexity involving a special commission designed to try people who had committed murder outside the country. the king's bench didn't have authority. the king's bench referred it to
that commission, the commission said he was acquited in portugal, therefore we will not try him in this special commission. does that reflect a principle of law? does it reflect something about the commission? does it reflect something about the individual circumstances? so far, it seems to me no one has any idea. if you read gage, you'll discover the other side's argument. and the same is true of the early cases. i won't go through all of them here. but the every cases -- early cases we find some. >> i think they all support us. >> they all support you? >> yes, i do believe they all support us. one case we mentioned that potentially leads the other way hutchinson se for for the purposes of a rule about recognition of civil judgment and there is no ancient rule rooted in roman law and greek law and canon law and ancient
english common law to have your civil judgments recognized by other court for successful prosecution. >> step back until you complete my answers to your question, i ask you, the judgment of any country in the world? >> if you're asking what the i think learn rule was i would say yes, that is but there are three important qualifications on the rule. first, it does have to be the same offense so there's no dispute in the case of the murder in portugal and the trial in england or the murder in the cape of good hope and the trial in england that those were the same offense, they were beth murder. but sometimes that's more complicated because that has to be the same elements. secondly, and this is very important, the second court has to recognize the concurrent jurisdiction of the first court. that is part of the english
rule. and there's no dispute, whatever may arise in international context, there's no dispute that alabama and the federal government have competent and concurrent jurisdiction over the offense of being a felon in possession. at least in this country, the answer seems clear, the rule is concurrent jurisdiction rule and there's no doubt there's concurrent jurisdiction. i don't think the idea even as a framing that you would recognize an acquittal in another country as a bar to prosecution could possibly be so shocking because it was mentioned in furlong. it was discussed in furlong. >> what's the third requirement? >> the third requirement is that it can't be a sham prosecution or collusive prosecution. >> can't be a sham so today. let's say a group of american tourists are murdered by terrorists in a foreign country. and there is a prosecution in
the foreign country for murder. the same offense. in a court of competent jurisdiction there and it's not a sham prosecution but it's a fairly inept prosecution, lack of prosecutorial investigative resources in a poor country and it results in an acquittal or conviction with a light sentence. your position is that there could not be prosecution here in the united states under the statute enacted by congress to permit the prosecution of individuals who murder americans abroad. so let me a-- >> so let me address that in a few direct way. one, the original understanding was it applied between countries. >> answer whether that's correct or not and if not why not. >> under the original understanding it would be up to the u.s. court to recognize the competent and concurrent jurisdiction of that court.
in the case of federal and state relations there's no dispute about that. >> i don't think this is a surprise question or a particularly difficult one. it is a court of competent jurisdiction, it's the court that in that country has jurisdiction to try for murder. your answer is, can they be prosecuted or can they not be prosecuted here? >> the answer is not just that the particular court is competent, it's that we're going to recognize the jurisdiction. s the point furlong was making about the murder of a british subject, by a british subject on a british ship and they say it's pretty doubtful england would recognize that case. that's determination the u.s. court would make you don't have to reach that question in this case. the point is that if that was the rule -- if that was the original understanding -- >> we do have to reach that question.
because your position logically would extend to justice alito's hypothetical and if prosecution is part of the national security efforts of the united states, federal prosecution, and your -- then your position would substantially hamper those national security efforts. >> i'm saying the reason you don't have to reach the question, obviously this is a case involving an alabama crime and a federal crime. >> the logic of your position -- >> the logic of your position -- the point is, whatever the court's ruling in that case were it ever to come up, which i think is exceeding unlikely,s that different case because it's so much stronger. it's original understanding of the rule between foreign country and it should apply -- >> but you're -- you say -- i wonder whether you promise exaggerated saying last mountain of support for your position. but your main support is a rumor of the decision involving a prior prosecution in portugal
and then the possibility of the subsequent prosecution in england. so it's a foreign prosecution. it's true, that's not what's involve here but your argument is based on foreign prosecutions. >> the original understanding was based on foreign prosecutions. the point is, the question presented here, it should lie between federal and state government. there's a basis for limiting this. >> i think the point is that you're asking us to write an opinion which is base offend this original understanding and the original understanding, as you put it, applies between oreign countries and a fortiori, it must be that our decision would apply between foreign countries. >> the original understanding -- >> that's what your brief is all about. what's you're asking us to say, that the original understanding was that there would be no
double jeopardy bar between different sovereigns whone those sovereigns are foreign countries. how could we avoid that consequence? >> i'm not sure the case is ever going to arise but that the state of alabama and federal government, in undisputed jurisdiction. so the question is when will the court recognize the concurrent jurisdiction of another country? the murphy v. water front commission is a case where the court held the self-incrimination rule apply and the court subsequently limited that to parties bound by the double jeopardy clause. there's a principled way of doing this and i would like to emphasize that it would be -- no one in any of these briefs has pointed to a pattern of inner sovereign successive prosecutions between nations that is going to be disrupted by our rule even if the court were to suggest that it would also apply between foreign nations.
i don't think the court has ever been given this question a full and fair opportunity, certainly posting corporation. it's important to understand how the holding this court arose. there was a suggestion in fox v. ohio in 1847 that there might be a separate sovereign -- but there were no intersovereign prosecutions, not only in that case but no practice of them. the first time the court had a chance to poll whether that is permissible is lanza. imming it's worth reading the response in the brief. there was no representation to the issue we're presenting here. the brief was incoherent and the court said i think what counsel is arguing is the separate sovereigns exception doesn't apply in the 18th amendment given the concurrent pow orse they have states -- >> none of these concerns were
presented in -- >> excuse me? >> none of the concerns you were talking there were presented in barcus? >> barcu sumbings was decided at the same time at abbat tembings, which was decide at the same time. it said we're going to jat here to lanza because none of the issues presented today are different than those presented in lanza. which is a remarkable statement. the evidence we're presenting here wasn't fully presented in barcus. >> could you say more about why you think incorporation or the lack of incorporation had anything to do with this question? >> fox v. ohio, its lead rationale is nonincorporation. i think it's wrong but it clearly said that and then lanza picked up and abate picked it up
>> it makes noence sense that incorporation would be the basis they have doctrine. if it were, you'd have a doctrine that only cuts one way. nords it would -- the court would have held that the federal government can't prosecute an individual for the same offense after a state prosecution but not the other way around. so the fact that there's no a one-way ratchet but in fact it's a symmetrical rule suggests that incorporation has nothing to do with it at all. >> i think what the court was getting at, i think it was the -- the logic of it was that offense must mean federal offense because the double jeopardy clause only applies to the froth. that's what the court was getting it and that's what was lanza. p in abade and i don't think it was a legitimate rationale too begin with. that was the rationale. it's interesting, i don't know that the government is defending
that rationale. they completely ignore -- >> i guess what strikes me is that you can say well, this case was a little bit different and this case the arguments weren't properly rented. -- presented. in this case something else was the matter. this is a 170-year-old rule. it's a 170-year-old rule that's been rely on by close on 30 justices. have voted at one time or another. specifically for this rule. not an application but for this rule. and you know, part of what started decisis is a doctrine of humility where we say we're uncomfortable throwing over 170-year-old rules that 30 justices have approved because we think we could kind of do it better. >> i disagree with the 170 years. v. ohio s dicta in fox and i think it's important to
look at the rationale when the court had an opportunity to decide this and that is lambings nza. there'sing in resembling an argumenting for the original understandling of the double jeopardy clause was presented in lanza. that was picked up in abbate and all these are preincorporation. the court has held repeatedly hat jures prudential changes are reason to revisit the doctrine. >> but why is the dock run wrong? given the uniqueness of our system of government, because there wasn't -- and isn't -- a comparable system in england at the time, there were not separate sovereigns, there was one sovereign, england. one of the cases you rely on involves wales. so the application of the rule there makes absolute sense in that condition text. but the logic of all of our cases relied on a simple theory of what the sovereignty between
the states and the federal government are. and you haven't really explained why that logic is not sense -- is nonsensical. >> the logic of the english rule as reported in numerous treatises from the early 18th century through the 20th century, still the rule today, is that where there's a court of concurrent jurisdiction, even if it's another government that has concurrent jurisdiction, then an acquittal bars subsequent prosecution. >> do you have any current case that describes the english rule that way? >> current case? >> something -- >> i refer the court to two things. one the famous professor brant article, suggested prosecutions, tracks the law of england and the british empire through into the latter half of the 20th century. there was a case in 1985, regina v. thomas in which the court
describes and applies the rule. i don't think the idea that this is not the english rule is a serious argument. >> you know how this rule applies within the european union? >> it applies the same way that we are urging here. that is my understanding. >> the question i thought, perhaps justice kagan and justice ginsburg and jouseties sotomayor are asking, as i understand it, in any case, i'm asking it. i have spent a certain amount of time in these old cases. i think barcus says there were three with you three against you two undecided. i don't find it quite as clear, i'll go back and look at them again. but suppose you're right. aybe marbury vs. madison was wrong. maybe there are missights in all
kinds of things. look at the door we're opening up. you've aide the briefs. there are briefs that say remember the civil rights world. of a eople were victims different race, killing them. and the state would just, oh don't worry, they'll never convict, and they didn't. or think of a brief here with the indian tribes saying we need this kind of thing for abuse of women. and think of the case of prohibition. and think of the cases that you've seen. now what i look for in your briefs, which i haven't found is but for the military is, it real think the -- really the case or not that as a practical matter if you go back the last 10 years or five of whatever it is, you found a whole lot of cases. where people were prosecuted twice by different sovereigns for what was the same thing.
because i didn't see them listed here. in any brief. but for the military. and therefore to me that's an important question. >> well, we can't know for sure how many successive -- >> of course i don't expect you to know for sure. >> i want to say the reason i'm saying we can't know for sure is because the government's policy of secretive policy they implement and don't really share data on it other than the prosecutions they've declined to make. sources from the early 2000's say they've authorized petite authorizations per year. there's reason to believe, i think. first of all, let me step back and say i don't think what should dictate what the constitutional rule is there's no minimum number of constitutional violations that triggers this court's duty to enforce the constitution. i think there's every reason to believe that the use of this inner sovereign prosecution, particularly federal after state for the same crime is
increasing, you see the facts of the case. slossberger es strength b significance because if there's a different element in one that's enough to take it out of double jeopardy? >> if each has a different element the other doesn't have, yes, that's enough to take it out of double jeopardy. that makes sense when you're talking about federal and state government. because if the federal government has made a considered decision that there's some substantial federal interest here, they can write they can define the crime in a way that's probably going to be different than crimes that states prosecute which are local crimes. >> how does that apply to civil rights cases? >> one, i want to note that the civil right concern, the aclu supported us, other progress i organizations supported us, the howard civil rights clinic, howard university thurgood marshall has filed a brief in
support soft neither side but i believe it's helpful to us because it explains why if the court adopts our rule it's not likely to be a problem for civil rights prosecutions. the main tools for federal civil rights prosecutions, 18 u.s.c. 241 and 18 u.s.c. 242. >> that would be the case if the blockburger rule holds but your interpretation of the term "offense" is perhaps inconsistent with the way this court has interpreted that concept in block burger cases, isn't that true? >> i don't think it's the least bit inaccidentism. i think if you look at, the current understanding of the rule derives from justice scalia's dissenting which was adopted in dixon and it's what we're saying it is. it's a -- it's a crime defined by the same elements. >> didn't he say it is the elements defined by a particular
sovereign? >> i don't believe he actually said that in grady v. corbin and i don't think the court said that in dixon. there was nothing sovereign-specific about it. this government tries to say it's nosely a rule of legislative intent which makes it sovereign specific but this is not what the english authorities said. >> back to the way you began and you told us that there is a mountain of evidence supporting your interpretation of the original meaning of double jeopardy clause. put aside hutchison and put aside the case involving welsh law that justice sotomayor referred to. can you cite any 16th or 17th or 18th century british case in which a foreign judgment actually barred a prosecution in great britain? >> in great britain? it's hutchison, the actual holding of roshe was that the employee was based on foreign acquittal would be a bar because
that was necessary to the court's decision, the court was deciding whether the defendant could plead that and innocence at the same time and said it couldn't because the plea one a bar. >> there are questions about roshe. in the version of the opinion available at the time of the founding was hutchison even cited? >> hutchison wound wunt cited but roshe on its own stood for that proposition and then in 1800, the hutchison explanation was added to the opinion. >> this is a mountain? >> i would primarily start with the treatises. by this way, in the grady v. corbin dissent, the entirety of the english common law evidence that the court -- that justice scalia relied on that became the opinion of the court in dixon was five prixtieses, one preratification that was dicta and one post-ratification case
that adopted it. that was the way that happened. >> do you have any evidence that most of these treatises, with the exception of blackstone which was every lawyer's bible at the time of the founding, but there's almost nothing in blackstone about this. these other treatises were well known to the members of the first congress and members of the state ratifying conventions, theyed that these tree toins their bookshelves and that's what they looked to? do you have any evidence of that? >> yes, these treatises, all these treatises were available in america, well-known treatises. the buller treatise which the government seems to enjoy taking potshots at. it was written by sir fan sis buller a member of the king's bench at the time of the framing. it's cited in a number of cases preframing and post-framing for criminal and civil law principles. of three of the five treatises that justice scalia relied on
are treatises we rely on here. >> but they don't cite any authority. what actual authority, which holdings of prefifth amendment dopt courts are cited in those -- >> mcnally cites hutchison and critesroshe. doesn't just cite them but discusses them. >> do we have the opinion in hutchison? >> there is sabael noteation, that's the only thing survived. scholarship has long noted that that was from one case. but it doesn't matter. it doesn't matter because we have the king's bench repeatcally saying this is the rule. this is the rule. the government cites not a single authority to the contrary stating an opposite rule. >> i apologize for ping-ponging you from the framing back to the present but i'd like to return you to justice breyer's question about the impact this might have on civil right organizations and
others. , would we be is upsetting what's happening. >> i don't think it wouldup set -- >> i'd like you to develop that further, i didn't get a complete action. >> i mentioned the primary tool of the federal government, the area of civil rights prosecution, 18 u.s.c. 241, 242. 241 is conspiracy to deprive someone of their constitutional rights under law, 242 is actually doing it. those aren't going to be the same offenses as murder or an assault. >> now. now. i can't foresee the future. it wouldn't be that hard, wouldn't have been. look, what's actually bothering me is yes, i know you're convinced on the history. i also know that there is maybe
less clear than you think. maybe not. that this court several times has looked at the history and they said it it's inconclusive and therefore -- and now we have a rule that's been here a long, long time. if we're going to go back and look at whether this court got the history right in cases, i ave my own candidates. so now the problem is that -- my problem is, is this a basis for going back, the same one that -- the same question but i haven't heard the answer. that justice kagan spoke of. >> two responses. if i could finish on the civil rights issue, i wanted to add that the federal government can take vol in all manner of ways. in a particular case, they can an custody of someone via -- if congress, if states were becoming uncooperative in the sarea of -- in the area of civil rights and this were really rah
problem which it doesn't seem to be today the federal government could preempt certain state crimes, there are any number of ways the federal government could take control if there were problems we can't foresee today. as far as the history being analyzed in several opinions of this court no, i disagree. it is one footnote in one opinion. it is foot note -- >> i think the question is, of all the errors this court has made over the years. [laughter] why this one. why should we care about this one. >> well, we should care because there's an ancient right not to be tried twice for the same crime. the original understanding of the double jeopardy clause considers this the same crime. >> i'm sorry, please. >> you should care because we cited examples of cases where a state court -- >> i'm sorry to interrupt but i think we've got that. ok. i think it's just a practical
question. it took until last year for this court to overrule matsun. why is this case, practically, today, important. >> it is important for the -- it is important because we currently have a rule that that allows the federal government to come in and decide they didn't like the way a state prosecuted someone or the results of the prosecution or the sentence they got and reprosecute them. it's precisely what happened in this case. there's every reason to believe it happens with some regularity. and the court can put an end to it. >> i guess the question that underlies justice breyer's question about civil rights is something along the lines of, you know, that's consistent with our structure of government. we have dual sovereigns. that means dual regulations. and dual regulation often means dual punishment. and if we were to adopt the rule that you suggest it might very
well be that either the federal government would have to subordinate its interests to the states, or the states would have to subordinate their interests to the federal government. and one of the things about our constitutional structure which akes it unusual is that both sovereigns are understood to have significant interests that they have the capacity to pursue. >> when they have concurrent jurisdiction over something that's the same offense that's illegitimate for reasons understood at the framing. take the cases -- take furlong, that's a case where multiple sovereigns have condition current jurisdiction over robbery at se sea and it was well understood that a prosecution by one would bar a prosecution -- >> i view it differently as actually separating out the offense of piracy which was an offense that sort of was in common versus the offense of murder which for furlong says yes, each different jurisdiction
can prosecute. >> the murder of a british subject by a british subject on a british ship. they weren't -- they were just applying the concurrent jurisdiction rule and saying why would the u.s. have concurrent jurisdiction over that? >> i suppose my main question, which actually goes back to justice gorsuch's question, because jouseties gorsuch has been trying to lead you away from something and i'm a little bit also confused as to why your argument seems frankly a little bit one note. you know, your brief and now your argument is just all about the original jurisdiction. and there are some people on this bench that think that's the alpha and omega of every constitutional question. but there are other people on this bench who do not, who think that 170 years of significant practice where 30 justices have signed on to a rule that you're going to have to give me more than the fact that, you know, actually pretty early on in the republic they decided that that was not what the original
understanding was even if they're wrong. so this is your opportunity to give me more. >> ok. 1922, i would say, but my opportunity and response to your -- you're offering me an opportunity to give you more. i will tell you incorporation. incorporation, incorporation, incorporation. the court has said, its only question is that incorporation makes a dig difference for stare decisis. after incorporation the federal government and the state government should be able to combine that which they didn't can don't alone. >> part of the original understanding as well was stare decisis. it's a principle, in my view, rooted in article 3, as pointed out, it's a doctrine of stability and humility that we take very seriously and the reason -- the bar you have to clear, i believe, is not just to show that it's wrong but to show
that it's grievously wrong. egregiously long. -- wrong. meaning a very high bar. because stare decisis is itself a constitutional principle. and given the uncertainty about the history can you clear that bar? two questions, is that the right way to look at it, grievously wrong, and two, how can you clear that given the uncertainty. >> i'm not sure grievously wrong is the right way to lock at it when you're talking about an unconstitutional law enforcement practice because this court has never -- >> that's begging the question. the point is they are prior decisions going back, as justice kagan says, many years. reaffirming the th district of columbia trinh and the question is when are we going to upset that stability, when are we going to depart from the humility of respecting precedent and overrule it, especially, your brief uses egregious wrong,
i used the term grievously wrong. >> i agree this rule is egregiously wrongful it's a rule -- there was no practice for all of english history, no practice for the first century of this republic, that alone i think speaks volumes. and i think going back to incorporation, i think in addition to how wrong the rule is, as explained by many jurists and many collar -- scholars over many decades, i think incorporation, the court has never had a full and fair opportunity post-incorporation to revisit this rule. >> how does it work as a practical matter? is it a race to the courthouse? if a prosecution bars a subsequent one, the state and federal government may have different perspectives? is it whoever can impanel a jury first will block the others? >> i don't think so. first of all, the norm in the country is cooperation between federal and state authorities. there are just speaking of one agency in one area -- >> it wasn't entirely true at the time of the civil rights
actions in the 1980's, 1970's. it wasn't true at the time of the fugitive slave law. >> as a practical matter i think it is true today. secondly blockburger has been subject to enormous criticism because it isn't defended enough, when you apply blackburger oftentimes they're not going to be the same offenses. and this is a critical, critical point. we have had an experiment in this rule. the experiment is between 20 and 37 states already bar successive prosecutions after a federal prosecution or by another state as a matter of state law and where is the courthouse surgeoned in those states? where are the law enforcement problems in those states? they don't exist, i don't think texas and the government have ever even really responded to that point. if i may, mr. chief justice, i'd like to reserve the remainder of my time. >> thank you, counsel. mr. fagan. >> thank you, mr. chief justice,
may it please the court. throit its history, this court has recognized that the distinct and separate sovereign powers of state and federal government, the petitioner provides no reason to conclude the court has been wrong all this time and overturning precedent on this issue will invite a whole host of problems. >> 170 years, i think your friend is right, that we have not had a full consideration and exposition of the issue in any of our precedents? >> i don't think that's correct, your honor. i think as you yourself pointed out earlier in the argument, the historical point he's making here and that is the center priest of his argument, that even prosecutions by a foreign sovereign qanbar domestic prosecution by the state or by the united states was fully before the court in barcus. the grant article that is all over the petition ear brief and
petitioner's counsel cited today was cited by justice black in his defense in barcus and all the authorities on which he's relying with the exception of roshe doesn't actually announce this rule were identified by justice frankfurter for the majority in footnote nine and the court found these authorities to be dubious and of limited value in -- buzz they don't really speak to our federalism. >> but you have to concede, n't you, that this rule, separate sovereign rule, has been widely criticized by both academics and several judges. >> your honor, it has come under some criticism. what's worth noting is a lot of articles that critsires it recognize that some exceptions are necessary and skev successive prosecutions are sometimes necessary to vindicate particular sovereign interests.
take the civil rights brief my friend was mentioning, they think that this court if it goes for the petition -- the position the petitioner is advocating it should announce a separate doctrine for civil rights. that's because they recognize the influence -- >> i thought the answer to the civil rights case is not the same offense. 241 and 242. there are no state law counterparts to those. >> those aren't the only civil rights charges we bring. so in the recent shootings by -- the recent shootings at the synagogue in pittsburgh and the african-american church in charleston, we've charged those with offenses that -- i can get into the details if you like they're murder plus a bunch of elements. those would be -- >> once you say a bunch of elements you get into blussberger. >> no, murder would be a lesser included offense of those
offenses if the offenses defined by different sovereigns were considered the same as petitioner is urging. but that's not even the only consequence. even -- there are a number of cat gophers cases that would be put at issue here and i can get into more detail on those in a moment. before i get to that, even the possibility of claims like this creates adverse consequences for law enforcement, for legislatures, and for courts. >> you must think that there's some problem or you wouldn't have the pettitte policy. that's an odd defense of a position to say, well, we take care of it somewhere else so don't worry about it. >> no, your rainshower honor, i think there are a number of issues -- instances including jubble -- double jeopardy clause last term, where it's recognized it doesn't solve every problem
that arises an we leave a lot of gers ledgely istures or for the political bramplings in general. i think this has been a real success story of that. he was just asked if he could point oany significant practical problems and he couldn't. but i can point to a lot of practical problems that will arise if this court adopts his rule. on the law enforcement side, the possibility that this could happen is going to deter cooperation, encourage aggressive prosecutions, a race to the courthouse and defendants trying to play each sovereign off against the other where one sovereign will have the ability to union rat la -- unilaterally bargain away the other sovereign's ability to enforce its interests. as to legislature he said it himself. this will incentivize cronk to preempt state law in more circumstances and it will also -- >> what about a case like, this very case, felon in possession. same crime, federal and state. what is the manipulation that
you see there? >> your honor, the examples i was getting to, i'm happy to get into them are examples of cases in which state and federal interests would be blocked. speaking to this particular case, i don't think there's any dispute at least by petitioner that the federal government has a substantial interest in regulating access to the interstate market for firearms by someone who has twice fired weapons and endangered members of his own family and members of the community. the only question is whether that substantial federal interest was vindicated when he entered into an omnibus plea deal with the state where he wound up as a practical matter not receiving any additional time in prisoner firearm offense. >> i think that's exactly the problem. that is practically -- more apparent today or at least potential concern that counsel might have addressed that is with the proliferation of federal crimes, and i think over
4,000 statutes now and several hundred thousand regulations, the opportunity to -- for the government to seek a successive prosecution if it's unhappy with even the most routine state prosecution, is a problem. justice brennan was concerned about it in barcus. in that case there was some evidence of manipulation even by federal shorts to secure a second conviction. in state court. why shouldn't that be a practical concern we ought to be more concerned about today? >> let me say a few things about that, your honor. the reason we have the pettitte policy is we do understand the successful successive prosecutions are very often inappropriate and we try to reserve them for circumstances in which the federal interest hasn't been vindicated. i think to the extent that there's a concern about successive prosecutions, it's
not so much successive prosecutions based on a particular law of one sovereign or another. it's successive prosecutions for the same conduct all raise those concerns. but everyone agrees successive prosecutions for the same conduct don't raise double jeopardy concerns. that's why the pettis policy is somewhat broader. it covers a subsequent federal prosecution following a state or federal disposition for the same act of transaction but to get back to your question, justice gorsuch, i think that makes the double jeopardy clause not necessarily the appropriate vessel for vindicating that concern. >> you know, i wonder about that. because in our prior cases, we hinged on two things. one was incorporation. and we were concerned that the federal government would be at a disadvantage compared to states without this rule. because states were not bound then by the double jetchar diclause and could pursue a
second prosecution after a failed federal prosecution. so why shouldn't the reverse be true, we thought. that rationale has disappeared with incorporation. we have since revisited a similar issue in the fourth amendment context, in elkins. we used to allow federal prosecutors to use illegally obtained evidence and now we don't. so that rationale seems to have in fact changed over time that might be one argument. and then the other is again with an - in barcus we rely -- elsewhere -- on the premise that prosecutors wouldn't do that th in routine cases. at least to some eyes this might look like a routine case where as did barcus itself. why shouldn't we be concerned about those two things? >> your honor, we don't view this as a routine case. first of all, you have to understand that set of cases
that could come under the pettis policy is already a very selective group. the frft doesn't charge very many criminal cases as compared to the states. and then we don't -- our number of pettis tit policy approvals each year is about 100. and this case is important to us because it's part of a program called operation safe neighborhood. the case studies have shown by focusing on recidivist offenders we have reduced crime in some neighborhoods up to 4 %. even if you don't like this prosecution, let me give you examples of cases barred under his rule. the foreign judgment problem the court was discussing with the igs -- petitioner a -- petitioner's counsel. let me give you a real example. rebels in e farc colombia kidnapped american journalists and held them for ive years, we have an open
indictment on them. when peace happened there, the charges were dismissed. i'm not sure whether jeopardy attached in those cases under colombian law or what the elements of the colombian law were but those are inquiries we don't want courts to have to have and we don't want as the government to have to file -- >> why not? woe we do it in federal cases all the time. we won't enforce judgments that are shams. we won't enforce jums when they're different elements. we won't enforce judgments when jeopardy acquittal hasn't attached. so why is it that civil defendants, corporations, businesspeople get the benefit of this rule but not criminal defendants? >> usually there's going to be parity among the parties. here the colombian government had a reason for gor forgiving this conduct once the rebel -- in return which for the rebels
admitted it and got amnesty. but that reason doesn't aploy to the flovet and the other thing we can't do and the thing that -- >> they say since there was never any trial that they were never in jeopardy? > i'm not sure how far the proceedings with regard to each and every rebel in colombia got, and his only solution to this, and ecan give you other examples, but his solution is to ask the federal government making a filing in u.s. district court asking the court not to respect the judgment of a colombian court. we can't do that with respect to colombian courts of french courts or italian courts without creating enormous diplomatic problems for ourselves. >> the dismissal based on some amnesty didn't do anything like an adjudication on the merits. >> let me give you another example. there's the bombing of pan am flight 103 over lockeby,
scotland, that implicates the interests of numerous sovereigns. one bomber was tried in pakistan. the u.s. might want to try that bomber as well. his rule would preclude that. his only solution is to ask the u.s. court to declare that some foreign court is not a court of competence jurisdiction. justice ginsburg, to your question about what european countries do, it's not correct that all europeans have his rule. germany, italy, france, belgium, and austria follow the same rule we do. >> as i understand it, tell me if i'm wrong, the common law gorsuch: but -- but -- but as i understand it -- and tell me if i'm wrong - the common-law countries, great britain and canada, do? mr. feigin: not all of them, your honor. great britain, it has become apparent recently, the -- probably the best case is the regina against thomas case that my friend cited. it has become apparent recently that they do adhere to that rule, although even in regina against thomas the prosecution, i believe, was allowed to proceed for other reasons.
canada's supreme court has reserved this question. and the idea that there is some international norm that sovereigns can't separately vindicate their own interests when they are implicated is simply not a rule. but let me focus just to -- let's just turn to domestic - justice ginsburg: may i ask, before you do that, you -- you rely very heavily on federalism, separate sovereigns. s there another case where federalism has been invoked to strengthen the hand of government, state and/or federal, vis-a-vis an individual? federalism is usually invoked because it's a protection of the liberty of the individual, but here the party being strengthened is not the individual, it is the state's freedom and the federal government's freedom to bring
-- to prosecute the same offense, felon in possession. mr. feigin: so i think the court's recognized in older cases like cruikshank, which was from the 19th century, and in its recent first decision in bond against united states that one of the things that american citizens get by being citizens of both the state and the united states is that there are two sovereigns that can positively legislate; that is, pass affirmative legislation to protect them. so in the civil rights era when the states weren't affirmatively protecting the civil rights of their citizens enough, they're also american citizens, and the united states stepped in to vindicate those interests. justice ginsburg: to -- to state a different crime, not the garden-variety assault, murder. mr. feigin: so, your honor, there are civil rights offenses on the books now, like 18 u.s.c. 249, which precludes -- criminalizes causing bodily injury to someone for racially
motivated reasons that could be double jeopardy barred under their rule. but let me give you -- let me give you some other examples of justice gorsuch: but counsel, just -- before we get to more examples, i thought justice ginsburg's point was worth exploring a little more. i had thought in this country that the people were the sovereign and that sovereignty was divided, exercise of sovereignty was divided, not multiplied. so it was divided between the federal government and the state governments, ninth and 10th amendment. and that it is awkward, isn't it, to say that there are two sovereigns who get to multiply offenses against you? i can't think of another case where federalism is used, as justice ginsburg indicated, to allow greater intrusions against the person, rather than to protect more against them. mr. feigin: well, your honor, the people have vested the sovereignty in both the state and the united states. justice ginsburg: is there such an example? is there such an example, other than double jeopardy, where the
individual has a double whammy, both the state and the federal, usually federalism, as justice gorsuch just pointed out, are protective of the individual? mr. feigin: well, your honor, it is a common fact of life that everyone is subject to both state and federal regulation. it's why everyone in this room, except maybe my friends from texas, pay both state and federal taxes. [laughter] mr. feigin: it's why businesses are regulated by both the federal and state governments, and why everyone knows that an act, and even petitioner agrees, the same act can be both a state and federal crime. justice alito: but what about the adoption of the black -- the blockburger rule as opposed to the same -- same transaction test? mr. feigin: so, your honor, i think -- justice alito: that -- that's a -- that's a rule that -- that's a rule of federalism, in a way. and yet it exposes defendants to prosecution for the same acts in both federal court and state court. mr. feigin: i think that's right, your honor. it would respect the judgments of the legislatures as to how they wanted to craft their crimes.
justice ginsburg: it's -- it's mr. feigin: blockburger hasn't heretofore been -- justice ginsburg: it's a double jeopardy. we're talking about double jeopardy, whether it's blockburger or this case. i asked outside the realm of double jeopardy, is there such an instance? mr. feigin: your honor, i -- i think i've just given several examples of cases where people are regulated more heavily because there are two governments than -- than they would if they were subject only to one unitary government. that's a necessary consequence of our system. and the court has repeatedly recognized it. justice kagan: may i ask, mr. feigin, do you think that there is a prospect of abuse where two different governments can use the possibility of prosecutions as a bargaining tactic to get defendants to agree to plea deals? is -- is that something that happens regularly? mr. feigin: i'm not really familiar with that being a serious problem under the current system. i think the main concern would actually be the opposite under the new unprecedented system that petitioner is asking this court to adopt, where someone
could go into the state prosecutors, someone -- let's say someone's caught in california with 100 kilograms of marijuana, which is a misdemeanor in california, as the states point out in their brief, but is a felony under federal law. and he agrees to plead to the state offense, and, therefore, that would bar a federal prosecution for possession with intent to distribute, which would be considered under his rule a greater offense. justice ginsburg: do you remember what the situation was in the d.c., not so very long ago, when we had the same prosecutor for the local courts and the federal court? and the d.c. court had lower penalties than the u.s. code and the prosecutor engaged in just that kind of tactic. plead guilty under the d.c. code, and if you don't, i'm going to indict you under the u.s. code. mr. feigin: well, your honor, d.c. is kind of a special case where both of those fall under federal government. it's like puerto rico, in that sense, in that they are not
separate sovereigns. but here is another problem we have run into in puerto rico. now the -- we can't charge -- we can't rely on the separate sovereign understanding of the double jeopardy clause there, is that the territorial prosecutors in puerto rico don't view the prosecution of crime in quite the same way as the federal government does. they're more concerned with crime of a transactional nature, rather than necessarily developing longer term investigations. and so one thing that they do is they frequently prosecute drug conspiracies that last only for one day, an agreement just to sell particular drugs from a particular location on a particular day. and at least one district court has dismissed a federal indictment for broader drug conspiracy that occurred for over a range of years on the ground that it was simply a greater included offense of the smaller puerto rico drug conspiracy. and that's just a consequence of the different ways in which the state and the federal government use their resources and the ways in which they want to prosecute crime.
justice breyer --: mr. feigin: another difficulty that's going to arise here is prosecutions by the federal government that follow tribal prosecutions, which i think are about 2/3 of the -- of the few hundred successive prosecutions that we bring each year. and as this court recognized a couple of terms ago in united states against bryant, the federal government plays a critical role in curbing the serious problem of domestic violence against native american women. tribes are limited generally to prosecuting only for misdemeanors. so if they find that someone has been committing domestic abuse, the most that they can do is prosecute that person for a misdemeanor. under federal law, 18 .s.c. 117-a, we can prosecutor for -- recidivist domestic abusers for a felony. and the tribes bring -- justice ginsburg: and what is -- feigin: the tribes bring -
justice ginsburg: what is the reasons for the tribe's very limited jurisdiction? mr. feigin: so the tribes have limited jurisdiction as a consequence of federal law. some tribes are allowed to do more serious offenses in exchange for providing more protections in their courts. very few have decided they want to make that tradeoff because it would require them to dispense with some of the traditional accoutrements of tribal justice that are important to their traditions. so as the court noted in united states against wheeler, justice in tribal courts is more focused on restitution between the defendant and the victim and less focused on incarceration and deterrence and the kinds of treatment programs that they can receive in federal prison, but that they not going to be able to -- justice breyer: i see the problem. i just wondered if you want to say a few words on a slightly different thing, which i don't know if you have anything to add to what's in my mind, and i have never been able to formulate a principle. all right. i looked at the history, it's not just a footnote 9. it's a whole discussion in frankfurter's opinion, which is on your side, but they have a pretty strong argument on their side. then you've pointed to some roblems -- and i'm sure they
are real ones - but they don't seem like overwhelming ones in terms of how often they occur. then you say: well, it's 100 cases where this applies every year in the federal part and there are also 20 states, probably 50,000 federal prosecutions, something like hat, there are a hundred cases, and this has been around for 70 years, at least, 170, possibly, or somewhere in between. so how am i supposed to decide in your opinion about whether their arguments, which are past, plus a certain nfairness, which justice black says pretty well outweighs the stare decisis. you can't say never, stare ecisis is never. if it always holds, we wouldn't have brown versus board. but, if it never holds, we're really in trouble in terms of the stability of the law. kay?
wonderful. this has occurred to you, this problem. and do you have anything to say that will help me decide this kind of balance? mr. feigin: your honor, i think they need to show a lot more than they have shown here in order to overcome this court's consistent understanding throughout its history of what the double jeopardy clause means. as justice kavanaugh pointed out earlier -- i forget what adjective he used, but it was - justice kavanaugh: grievously. mr. feigin: thank you. you have to show that this was grievously wrong, and they haven't come close to doing that. i can talk about the history in -- in a second, but just in terms of the consequences, there are very serious consequences -- the onsequences are going to multiply if you have -- if you adopt their rule because everyone understands how to operate under the old rule. their rule's going to create problems for courts comparing offenses across jurisdictions. that's complicated -- justice ginsburg: may i ask you a question about issue preclusion? you say no - no double -- double jeopardy doesn't operate state -- federal -- federal/state.
but how about a case that has been tried in one system and the jury has found whatever it's found, and then it's tried in the other system and the identical conduct is involved. is -- does issue preclusion operate? mr. feigin: in -- are you talking in criminal lawginsburg: yes. -- justice mr. feigin: -- or in -- huh? justice ginsburg: yeah. mr. feigin: or in civil law? justice ginsburg: i'm talking about criminal law. mr. feigin: so, in criminal law, your honor, there is no non-mutual collateral estoppel. the court said as much in -- in standefer. and this issue hasn't come up, of course, because the court has understood that federal and state crimes are not the same offense under the double jeopardy clause. chief justice roberts: don't -- don't all your problems go away if you're the first to file, if you win the race to the ourthouse? and i would assume the same is true with the states. and so what's most likely is
that you and the states are going to sit down and develop a -- a way of coordinating which cases you're going to file in first and which ones they're going to file in first? mr. feigin: well, your honor, i'm not sure that's true, because i'm not sure that we're always going to cooperate. i think the history of this nation has shown that the federal government and states do not always see eye to eye on matters of criminal law enforcement, and there are going to be cases in which each has separate interests to vindicate. you could imagine federal prosecutors in california, as a protest against -- i'm sorry, state prosecutors in california, as a protest against federal marijuana laws, allowing anyone who's caught with 50 kilograms of marijuana to walk in and plead to a misdemeanor to frustrate federal prosecutions. there are also going to be cases where the state prosecutors simply don't have perfect information or maybe the federal prosecutors don't. so the state prosecutors might see something and just think t's a simple assault, and what they don't realize is that it's actually part of a racketeering conspiracy. and i'm not making up these
examples, your honor. we see all the petite waiver requests, and the examples i'm giving the court are real cases that have actually happened. hey're at least based on -- justice gorsuch: so, counsel, it seems like the ones that you can't cooperate you could solve by getting to the courthouse first, right? mr. feigin: well, then we're not - your honor, then, if there's a race to the courthouse, it deters state and federal prosecutors from cooperating even at the investigation stage. you don't have to take my word for it. if you look at the state and local government brief, that's exactly what they say. justice gorsuch: can i ask one question on -- on -- on stare decisis that we haven't explored so far? and that's reliance. the government doesn't make a reliance argument here as far as i can tell. it says that there's going to be some systemic trouble if we were to change the rule, and confusion. but you -- you can't -- you haven't suggested, i don't think, that -- that a prosecutor has a right to rely on an unconstitutional rule to put someone in prison. i mean, that wouldn't be a thing, would it? mr. feigin: well, your honor, i do think that it should weigh heavily on this court that what it would be doing would potentially be letting people out of prison based -- based
on, i think, a rule that is at best -- -- if we orsuch: if we were convinced, though, the constitution stood one way, against you, just hypothetically, you wouldn't -- you wouldn't argue that the government has a reliance interest to keep people in prison despite an unconstitutional rule, would you? mr. feigin: your honor, i think if they had shown the kind of monumental or grievously serious evidence that they would need to show -- justice gorsuch: well, no. how about 50 -- mr. feigin: -- to prevent stare decisis. justice gorsuch: let's just say 51%, they've persuaded us 51% that the constitution's meaning under any sort of interpretation, just hypothetically, is against the government. would it be appropriate, in the government's view, to keep people in prison in those circumstances? mr. feigin: well, your honor, it's - it's hard to put an exact percentage on it, but i do think they would have to show -- this isn't just a preponderance of the evidence test or stare decisis means nothing. there's also something about the reputation of this court and ensuring that this court doesn't lightly overturn its precedents, unless there is some monumental reason to do so. and they haven't shown that -- they haven't shown any such reason to do so today. i mean, one -- one further
point i would -- i would make on that is that their entire argument is based on a historical principle that no court in the united states has ever adopted, which would be this foreign judgment bar principle. and the result that they would reach would be, i think, frankly, unworkable. they're not raising any arguments that this court hasn't already considered and rejected. justice kavanaugh: well, it's based -- mr. feigin: and in terms of -- i'm sorry. justice kavanaugh: go ahead. mr. feigin: your honor, you referenced earlier and -- as did justice kagan -- the idea of stare decisis representing something about judicial humility. and i can't think of anything that's more antithetical to judicial humility than deciding that this court, all of a sudden, has discovered some
historical principle that has eluded its predecessors going back 170 years. justice kavanaugh: they - mr. feigin: if these -- i'm sorry, justice kavanaugh. justice kavanaugh: they also raise, of course, a general principle of individual liberty. and we've often said, as justice ginsburg points out, that federalism is designed to protect individual liberty. i think your basic response to that is that, actually, that's wrong in certain respects. federal -- that this system of separate sovereigns means your individual liberty's infringed more often by double prosecution, double regulation, double taxation. is that your answer, or do you have an answer other than that in response to the individual liberty concern? mr. feigin: no, your honor, i think it's a very narrow and not correct view of liberty, only to look at the liberty interests of the defendant. there are also the liberty - justice kavanaugh: from the erspective of negative liberty, liberty -- freedom from government oppression or government regulation, your rule strikes some -- and this is what they point out -- as a - as an infringement of basic concepts of individual liberty. you didn't get me the first time, you're going to take another crack at it, mr. feigin: well, your honor, i -- i don't think that's the right way to think about it. i think the framers decided
that they were going to protect -- may i finish, your honor? chief justice roberts: uh-huh. mr. feigin: they were going to protect liberty in a particular way, and the way they were going to do that is by vesting sovereign power in the states and in the united states, which could both positively enact laws and protect people who may be victims of crimes. and they did not have any understanding that the united states or the states would be precluded from vindicating their distinct sovereign interests in their own sovereign spheres by the unilateral actions of the other sovereign. thank you. chief justice roberts: thank you, mr. feigin. general hawkins. thank you, mr. chief justice, and may it please the court. i'm here today on behalf of a broad and diverse coalition of 36 states collectively representing over 86% of the u.s. population. the states may disagree with one another about various policy issues, but we are united here in urging the court not to overrule its long-standing interpretation of
the double jeopardy clause. to rule for petitioner, the court would have to read "offence" to mean conduct without regard to sovereignty, overrule fox, lanza, bartkus, abbate and hheatt, allow one sovereign to potentially thwart another's ability to prosecute violations of itsforeign powers a potential veto laws, give over domestic prosecutions, incentivize even -- justice ginsburg: in the -- in the numbers -- the numbers you just mentioned, i thought we had heard from the other side that something like 25 states, something like that, do not have the separate sovereigns, one state versus another, state versus federal. mr. hawkins: well, your honor, it's true that there are 20 states that have enacted a general sort of bar on their ability to bring a prosecution based on conduct that was already prosecuted by another sovereign. there are some quirks and differences within those states, but i think it's
important to note that 14 of those 20 states are a part of our coalition today. they have signed on to our amicus brief urging this court to leave that decision and those types of policy considerations to the states, which are already actively legislating in this area. take the commonwealth of virginia, for example. the commonwealth of virginia generally bars a prosecution by that state when the federal government has already brought a prosecution based on the same conduct. but, as recently as 2003, following the 9/11 attacks, virginia amended its law to make an exception for terrorism cases. other -- the parties have spoken about potential exceptions related to civil rights, for example. i think the virginia example shows that states are capable of recognizing the fairness concerns and the policy concerns that petitioner raises and legislating appropriately. in asking the court not to overturn its long-standing interpretation, we'd like to emphasize a couple of oints.
first, petitioner's position would create a litany of practical problems that could harm state interests. and i'd like to go through a number of examples of those. first, imagine a situation in which state a has a tougher penalty for a particular type of conduct than does state b. that, of course, is the fact pattern of heath v. alabama. under petitioner's view, state a would not be able to vindicate its interest in that sterner prosecution, if state b were to go first. that could -- that situation could also play out if a state has a sterner penalty for a particular act than does the federal government. this court, of course, saw that in the screws case, where the state penalty was much stronger than the federal penalty. we also see that in, for example, the area of robbery. under federal law a robbery of a u.s. letter carrier carrying u.s. mail is punishable by up to ten years. in texas, however, robbery is punishable by up to 20 years.
again, under petitioner's view, texas would not be able to vindicate -- justice kagan: i think what your friends on the other side might say to that is something along the lines of -- well, it's one thing to pick the higher penalty and, you know, let the state or the -- or the government with the higher penalty go forward. the problem with this is that you can get both. mr. hawkins: well, your honor, oftentimes as a practical matter there won't be both. but suppose another practical problem that would arise under petitioner's theory, suppose that the state had a particular interest in prosecuting a drug kingpin in that state. suppose he's public enemy number one in that given state. well, ununbeknownst to the state, the u.s. government is also looking for that kingpin in connection with a different federal prosecution, now, unbeknownst to the state the federal government could enter into a plea agreement with the criminal in exchange for a
testimony in some other matter that's of grave concern to the federal government. the states might not know about that until it's too late. at that point the states would not be able to vindicate their interest in prosecuting public enemy number one. and of course as the discussion earlier -- justice ginsburg: if the defendant could be reprosecuted by the state, that would be a disincentive to entering into a plea bargain if he can -- if he can just be subject to prosecution by another sovereign for the same conduct mr. hawkins: your honor, i suppose that may be theoretically true, but as my friend from the federal government indicated, we don't have any evidence that that's the case, and i don't believe that petitioner has pointed to any. as was discussioned earlier, we could also see this play out as to foreign prosecutions. imagine a situation involving a international drug lord, a
pablo escobar type, for example. suppose that florida could show that this individual had trafficked large amounts of drugs into the state of florida and devastated local florida communities. well, if a local medellin prosecutor and a local medellin jury were to try and acquit escobar or potentially give him a light sentence or something like that that would under petitioner's theory forever prevent the supreme court of -- justice ginsburg: acquit of conduct engaged in florida? mr. hawkins: well, yes, your honor, if there were drugs being trafficked by escobar and a cartel into the state of florida, that would certainly implicate the interests of florida. justice ginsburg: yes, but i asked about the colombia. if the crime is committed in florida against florida residents -- mr. hawkins: well, your honor, my hypothetical i am making assumes that there's some sort
of colombian law against trafficking drugs out of that country into another country. we can can certainly imagine that being the case in many scenarios. other practical concerns that would arise, as my friend from the department of justice indicated, would involve races to the courthouse and competition between states and the federal government, rather than cooperation all the detriment of law enforcement. courts around the country would apply blockburger across the federal and state divide. that is no easy thing to do. this court has experienced a taste of that in its armed career criminal act jurisprudence where the court has tried to do something similar to that, has developed the modified categorical approach to other doctrines to try to accomplish that. it's no easy matter to do that. that problem would even be compounded if this court were to declare a ruin for petitioner to be retroactive. anybody who had been convicted
or even charged, really, a second time based on similar conduct would challenge that prosecution as unconstitution this court's rule. and then, of course, a court in reviewing that, if the rule were retroactive, would have to go back through history and apply blockberger, not just across the federal and state divide, but also as to historical matter as to offenses that may have changed over time. finally, setting all of these practical problems aside, i think it's important to note that petitioner seeks to take us into unchartered waters. the rule that he imagines has never been the rule in this country until potentially now. the states and the federal government have never had to be concerned about who goes first. under the law of unintended consequences, surely there are practical problems that would arise from petitioner's position that we may not have even thought about today. unless there are further questions. chief justice roberts: thank you, counsel. mr. hawkins: thank you, your honor. chief justice roberts: mr.
chiten, four minutes remaining. mr. chiten: i guess i'll pick up where -- thank you, mr. chief justice. i will pick up where he ended, which is that this has never been the rule in the country -- in this country today. it's the rule in at least 20 states. it's the rule in 37 states with respect to certain crimes. and it also seems to have worked out ok. i did want to return to the issue of stare desigh cisand respond to what they were -- stare decisis and respond to what they were saying. we have a legal framework for answering stare decisis questions. it's a law of stare decisis. and i think it provides some pretty standard guidance on this. we have to be right on the merits, that's true, but if we're right, if we're assuming we're right on the merits, then the question is what else do we need to show? and i already told you about one key factor under the court's jurisprudence, which is a juris prudential change.
and i think incorporation is a pretty significant one. second, a massive expansion in federal law as this court has recognized. and that was recognized by this court in murphy and elkins as the kind of changed factual circumstance that would -- that would justify revisiting an issue. another issue is reliance. and reliance isn't really a relevant issue where you're talking about an unconstitutional law enforcement practice. this is a constitutional case. this is not a statutory case, and the court's approach to stare decisis has been different in constitutional cases. justice alito: do you think there is less reliance here than there was on the issue of the miranda rule? mr. chiten: well, the issue whether you are continuing an unconstitutional law enforcement practice. and my point is that the court has pointed out in arizona v.
gant that the court has never allowed continuation of an unconstitutional law enforcement practice -- justice alito: that's your position? mr. chiten: your honor, i am not saying without cushion krgs of starry decise -- without onsideration of stare decisis. justice breyer: i mean, the obviously thing that comes to mind -- what's wrong with what i'm thinking, which must be something wrong with it. that very often this court has said the rule of constitution is x, but we're not going to apply it retroactively because that would mean a vast release of prisoners who have committed crimes. now, that sounds like reliance and sounds like reliance on a law that the court has said is unconstitutional which is the preceding situation. mr. chiten: yeah, i don't think it's a reliance issue on addressing the underlying merits questions.
it's -- justice breyer: the reason you still apply the unconstitutional law to all those people who are in prison is because the reliance in the community on their staying in prison. mr. chiten: the reason you don't -- mr. chaiten: the reason you don't apply it is because the judgment is final, so i think it's a separate question from the underlying merits question and underlying constitutional question. justice alito: -- generaledary we going to get you live now to the u.s. house. they just gaveled back in. [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] objected to under clause 6 of rule 20. the house will resume proceedings on postponed questions at a later time. for what purpose does the gentleman from utah seek recognition? mr. bishop: i move to suspend the rules and pass h.r. 5513 as ameppeded.