Balkinization: April 2018

Balkinization
an unanticipated consequence of
Jack M. Balkin

Balkinization Symposiums: A Continuing List

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
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Ian Ayres
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Corey Brettschneider
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Mary Dudziak
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Joey Fishkin
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Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
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Jonathan Hafetz
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Andrew Koppelman
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Marty Lederman
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Sanford Levinson
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David Luban
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Gerard Magliocca
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Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
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Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Why the Court Does Not Have to Second-Guess the President's National Security Decisions in Order to Rule that He Lacks Statutory Authority to Issue Travel Ban III

The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order

Implications of our “post-subpoena” world

“Not the Next Korematsu”

On the so-called "Global Injunction" question in the Travel Ban case

Presidential Impeachment in Partisan Times

The Trump Amendment

The real cost of Masterpiece: It’s personal.

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Thursday, April 26, 2018

Why the Court Does Not Have to Second-Guess the President's National Security Decisions in Order to Rule that He Lacks Statutory Authority to Issue Travel Ban III

Marty Lederman

There’s already been a great deal written about yesterday’s oral argument in Trump v. Hawaii. Most observers have focused on whether, for purposes of the Religion Clauses of the First Amendment, the Court should or must (or will) accept the facially neutral reasons offered for the “Travel Ban III” Proclamation or whether, instead, the Court may—and should—look behind the surface of the Proclamation to determine whether it is, in fact, the product of a presidential design to disfavor Muslims’ entry into the United States, in order to make good on his campaign promises to that effect.

My focus here, however, is on the challengers’ principal argument—namely, that although 8 U.S.C. 1182(f) delegates to the President a great deal of discretion to supplement Congress’s conditions on entry in response to new and unforeseen circumstances, the President has not been delegated the authority to (in Neal Katyal’s words) “take a wrecking ball to the statute and countermand Congress’s fine-grained judgments.” At several places in the argument, some of the Justices appeared to be uncertain about whether this is, indeed, such a case where the President is countermanding a specific congressional judgment, rather than one in which he is acting to address a new and unforeseen emergency situation involving an emerging threat to national security. I’d like to offer a few words here to explain why Neal Katyal was right that the Proclamation falls in the first category, not the second—that is to say, why this is not a case in which the courts are being asked, as Justice Kennedy put it, to review a presidential judgment about "whether or not there is . . . a national exigency.”

Katyal’s lead argument, in a nutshell, was this, from his opening:

Congress has already specified a three-part solution to the very same problem the Order addresses--aliens seeking entry from countries that don’t cooperate with the United States in vetting, including “state sponsors of terrorism and countries that provide inaccurate information.” First, aliens have to go through the individualized vetting process with the burden placed on them [to establish that they are eligible to receive a visa and are not inadmissible]. Second, when Congress became aware that some countries were failing to satisfy the very same baseline [information-sharing] criteria [identified in the Proclamation], Congress rejected a ban [on entry of all nationals of those countries]. Instead, it used carrots [in particular, the Visa Waiver Program]. When countries cooperated, they'd get [a] faster track for admission. Legislation to use big sticks like nationality bans failed. And third, Congress was aware circumstances could change on the ground, so it required reporting to them so it could change the law.

At one point when Katyal was reiterating this argument, the Chief Justice interjected that “it seems to me a difficult argument to say that Congress was prescient enough to address any particular factual situation that might arise.” What if, for example, the President is privy to “more particular problems in light of particular situations developing on the ground”? To similar effect was this exchange immediately preceding the Chief Justice’s remarks, among Katyal and Justices Alito and Kennedy:

JUSTICE ALITO: Can you imagine any situation in which the threat of the infiltration of the United States by terrorists was so severe with respect to a particular country that the other measures that you have mentioned could be deemed by a President to be inadequate?

MR. KATYAL: Yes, I can. And the President would have a robust authority to deal with that. That is not our argument.

JUSTICE KENNEDY: And your argument is that courts have the duty to review whether or not there is such a national exigency; that’s for the courts to do, not the President?

MR. KATYAL: No. I think you’d have wide deference [to the President], Justice Kennedy. . . . Presidents have wide berth in this area . . . if there's any sort of emergency . . . . But when you have a statute that considers the very same problem and there’s nothing new that they’ve identified in this worldwide review process that Congress didn’t consider—exactly the same types of things: it is a perennial problem that countries do not cooperate with the United States when it comes to vetting . . . .

It appeared, in these and other places in the argument, that perhaps some Justices are under the impression that the President’s September Proclamation identified, or was predicated upon, some sort of newly emergent or newly discovered “national exigency,” or “particular situations developing on the ground,” such as a “threat of infiltration of the United States by terrorists” so “severe with respect to a particular country that the [statutory] measures Congress has adopted] could be deemed by a President to be inadequate.”

It is very important to understand that that is not this case.

To be sure, in section 1(f) of the second travel ban executive order, in March 2017, the President made a finding that in light of the conditions in six identified countries, “the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States” was “unacceptably high” until the interagency “assessment of current screening and vetting procedures,” mandated by that executive order, would be completed. [I am dubious that this finding was based upon any evidence of such a terrorism risk—the President did not cite, or state that he had been made aware of, any such evidence—but that’s not relevant here.]

It is telling, however, that following that extensive, six-month interagency assessment, the President did not, in the September Proclamation, make any findings at all about any new, or unacceptable, risk of terrorism being committed by the nationals of the countries covered by the Proclamation. This is hardly surprising, given that no one from these countries has killed anyone in a terrorist attack in the United States in over four decades; in the words of the Cato Institute amicus brief, “there is a total disconnect between the countries chosen and countries whose nationals, historically, have committed acts of terrorism or other crimes on U.S. soil.”

Of even greater significance here, the President's Proclamation also did not find, or even suggest, that the highly reticulated scheme that Congress has chosen to deal with the problem the Proclamation does address—the failure or refusal of some countries to adequately assist U.S. vetting of their nationals—has resulted in any additional harm, or risk of harm, to the national security. (Even some who have found the Proclamation’s findings to be legally inadequate have missed this point. Judge Keenan, for example, wrote in the Fourth Circuit case that “[t]he Proclamation merely exclaims that the countries’ faulty protocols create a security risk for the United States.” But the Proclamation does not say any such thing about the "faulty protocols" creating a national security risk.)

This is not simply a formalist, “gotcha” point about a failure of the President to intone some magic words. For one thing, if the agencies had found any basis for believing there were such a heightened national security risk, one can be certain that’s something the President would have been included in the Proclamation, as part of its justification. For another, the Proclamation would make little sense if its purpose were to prevent the entry of categories of people who pose a heightened risk of terrorism, because it allows the nationals of, e.g., Iran, Libya, and Yemen to continue to enter the U.S. with certain forms of nonimmigrant visas, even though the vetting for such visas is typically less robust than the vetting for immigrant visas that the Proclamation prohibits for such persons.

More importantly, however, the actual, operative effect of the Proclamation itself is not to exclude the entry of nationals, even on immigrant visas, who pose a risk of terrorism—indeed, its overwhelming, if not exclusive, function is to exclude nationals of the covered countries who do not pose such a risk.

To see why that’s so, let’s look at the presidential finding at the heart of the Proclamation. Section 1182(f) authorizes the President to suspend the entry of specified aliens, or a class of aliens, whenever he finds that the entry of such aliens “would be detrimental to the interests of the United States.” How would the entry of the aliens barred by the Proclamation be detrimental to the interests of the nation? In the Proclamation, the President states the following: “The restrictions and limitations imposed by this proclamation are, in my judgment, necessary to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States.”

Notably, this is not a finding that the entry of the excluded persons in question would be detrimental because they pose a heightened risk of committing terrorist acts. Concededly, however, it is an assertion that their entry would be "detrimental" because the government lacks the information to assess whether or not they pose such risks. As the Solicitor General put the point in his opening brief, in explaining how the Proclamation is said to satisfy the 1182(f) condition (and quoting the President’s finding): “Entry of the restricted foreign nationals would be detrimental to the national interest because ‘the United States Government lacks sufficient information to assess the risks they pose to the United States.’”

Here’s the rub, however: Even without the Proclamation—that is to say, under the rules that Congress has already insisted upon and that were in place before the Proclamation took effect—if the U.S. government “lacks sufficient information to assess the risks” that a national of the covered countries poses to the United States, the government does not allow the entry of that individual.

This follows from, among other things, 8 U.S.C. 1361, which provides that:

Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this chapter, and, if an alien, that he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter.

Consider, for example, a case involving exactly the sorts of cooperation inadequacies identified in the Proclamation itself: Say, for instance, that a national of one of the covered countries applies for a visa, makes application for admission, or otherwise attempts to enter the United States, and his home country has failed to issue him a passport “embedded with data to enable confirmation of identity,” or has failed to respond to a U.S. request for “identity-related information not included in its passports,” or for information that nation possesses about the alien’s “known or suspected terrorist and criminal history.”

In such a case, because of the country’s failure or refusal to adequately cooperate with the United States, the alien will typically not be able to meet his burden of establishing that he is not inadmissible, and therefore he will not be allowed to enter. This explains why, even without the Proclamation, the State Department refused to issue visas for aliens from the countries in question at far higher rates than for other aliens (see Cato amicus brief at 22).

The actual effect, and design, of the Proclamation, then, is not, as the presidential finding suggests, to preclude entry of those nationals about whom the Government “lacks sufficient information to assess the risks they pose to the United States.” To the contrary, it is, instead, to preclude entry of many thousands of the nationals of the countries in question for whom the U.S. government has sufficient information to assess that they pose no such risks—for example, individuals who because of (very young or old) age, or disability, or established opposition to terrorism, cannot reasonably be considered a threat; or individuals who otherwise are able to provide compelling, reliable evidence that they are not inadmissible, despite their home country’s failure to do so; or nationals of one of the designated countries who have for many years been living in a third country in which they have not demonstrated any grounds for inadmissibility, and who have not recently visited the designated country of which they are a national.

The Solicitor General, undoubtedly aware of this extreme mismatch between the problem identified in the Proclamation (the alleged "detriment" to the United States) and the restrictions that it imposes, repeatedly fell back at oral argument on the other rationale mentioned in the Proclamation—namely, that the Proclamations' vast required exclusions, even of nationals who meet the burden of proving that they are not a risk or otherwise inadmissible, are necessary in order to exert “pressure” on the governments in question to improve their cooperation with the United States (i.e., in the words of the Proclamation, “to elicit improved identity-management and information-sharing protocols and practices from foreign governments”).

It is not obvious that such an “inducement” theory satisfies the statutory requirement in section 1182(f) of a finding that the entry of the individuals would itself be “detrimental to the interests of the United States,” any more than it would be the case—to use Justice Kagan’s example from argument—that the entry of Israelis would be “detrimental” to the United States where the President wanted to “put pressure on Israel . . . to vote a certain way in the U.N.” and thus tried to exclude entry of all Israelis in order to accomplish that end. (In such a case, it’s not so much that the entry is detrimental as that the exclusion is said to be useful to another end, extraneous to the excluded aliens themselves.)

But even if the Court were to conclude that such a “pressure-inducing” rationale might come within the four corners of the terms of section 1182(f), the critical point here is, as Katyal emphasized, that this is not a new problem, or one that has proved to be more acute or consequential than Congress assumed: Congress has long been well aware of exactly the problem the President identified, and has deliberately chosen not to use an across-the-board “exclusion-of-nondangerous-nationals” method to address it. Congress has, instead, chosen a different, comprehensive series of steps to induce countries to improve their identity-management or information-sharing policies and practices. As Justice Frankfurter put the point in the Youngstown “Steel Seizure” case, in explaining how the Congress there had “unequivocally put aside” President Truman’s desired remedy for a labor impasse (seizure of the factories) by enacting an alternative, highly reticulated scheme for dealing with such “potential dangers”: “[N]othing can be plainer than that Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative responsibility for choice.” “On a balance of considerations, Congress chose not to lodge this power in the President.”

Likewise in this case: If the President believes that the means chosen by Congress to induce greater information-sharing and identity-management cooperation are insufficient to address the very problem that Congress has already considered, his officers can say so in their reports to Congress, and he can propose legislation to alter the current detailed statutory response. But there is no new “exigency” here—no new “situations developing on the ground” related to information-sharing and identity-management—that was unforeseen by Congress, let alone any “situation in which the threat of the infiltration of the United States by terrorists was so severe with respect to a particular country that the other measures [prescribed by Congress] could be deemed by a President [or were deemed] to be inadequate” to the task. Nor has the President even alleged or asserted such an exigency.

This is not, in other words, a case in which the Court is being asked to "second-guess" a national security determination of the President. The Court could resolve the case simply by holding that although section 1182(f) authorizes the President to supplement Congress's immigration regime in situations where he is presented with evidence that entry of certain aliens would result in harms that Congress did not contemplate, he may not use that delegated power to supplant the decisions that Congress itself has already made with respect to harms that the legislature has already thoroughly considered.

Posted 2:00 PM by Marty Lederman [link]

Monday, April 23, 2018

The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order

Sandy Levinson

Robert Barnes in the Washington Post states, quite accurately, that the central issue before the Supreme Court later this week, when it considers the constitutionality of the Trump Administration's travel bans, is whether Trump will be viewed as just another president, with the typical deference that one assigns to holders of that office, or a dangerous exception to the assumptions we make about our presidents that he in fact is. As it happens, Mark Graber and I have almost literally just published an article in the Chapman Law Review, in a symposium on executive power, that argues that Donald Trump is a decidedly "non-Publian" president who is entitled to little or no deference. More to the point, we are extremely critical of those of our colleagues who are so wedded to "neutral principles" that they deny the obvious differences between the dangerous and ignorant demagogue who is currently our president and his predecessors. Barnes quotes Josh Blackman, speaking on his own behalf in a phone call sponsored by the Federalist Society, in this regard:

If the court rules here for President Trump, I don’t see that many lingering problems; I don’t know that we’ll ever have a president again like Trump, who says such awful, awful things on a daily basis,” Blackman said.

“I worry much more if they rule against President Trump, and they give courts [a] green light to parse campaign statements and the like, this could potentially hamstring not just this president, but also future presidents.”

Blackman's argument requires a willful blindness to the implications of giving someone "who says such awful, awful things on a daily basis" the basically unconstrained power that modern presidents have with regard especially to foreign and military affairs. The theoretical possibility that some "future president" might be constrained by the willingness of the Supreme Court to take judicial notice, as it were, of manifest bigotry coupled with setting aside ordinary administrative procedures, should take precedence, he argues, over the clear and present danger that Donald Trump presents to the integrity of our constitutional form of government. From our perspective, this is legal formalism run riot. Blackman has responded to an earlier version of this argument.

As always, I am opening up this post for comments, but I beseech those who wish to take advantage of my generosity actually to read the Graber-Levinson essay before commenting. We spend forty pages supporting our argument, including, for what it is worth, copious quotations from a variety of political conservatives who share our concerns about normalizing the egregious Chief Executive inflicted on us by the Electoral College (and Russian skill in manipulating Facebook, plus whatever role was played by Hillary Clinton's own tone-deafeness and sheer stupidity in the way she responded to the email issue).

aaa .

Posted 5:18 PM by Sandy Levinson [link] (83) comments

Implications of our “post-subpoena” world

Guest Blogger

David Schulz

Last week FBI whistleblower Terry Albury pled guilty in Minneapolis to two counts of violating the Espionage Act. Albury is the second person – after Reality Winner – prosecuted by the Trump administration for leaking documents to the media in just 15 months. This puts Trump on track to outdo President Obama’s record-setting pace of Espionage Act whistleblower prosecutions, a chilling prospect given the description in the just-released Comey memos of the President and his FBI Director gleefully discussing the prospect of pursuing leakers aggressively and hoping to “nail one to the door as a message.”

The continuing use of the Espionage Act as a de facto official secrets act and Agent Albury’s conviction once again lay bare the fundamental problem that our legal regime for protecting national security secrets affords no adequate opportunity for a whistleblower to defend a disclosure on First Amendment grounds. Albury had been the only African-American FBI agent in Minnesota, home to a significant Somali refugee community and, according to his attorney, Albury’s disclosures were an act of conscience. Albury was motivated to pass information to a reporter by his belief that there was no viable alternative to remedy abuses he witnessed in the FBI’s investigation of political and religious groups and ethnic minorities, including its widespread use of national security letters (NSLs).

The Espionage Act was written a century ago to prosecute spies after World War I, but is being used to send sources like Albury to jail for leaking information to the U.S. press without any defense or mitigation based upon the public interest in the information disclosed. As applied by the Department of Justice, the Espionage Act requires proof only that a whistleblower had “a reason to believe” a disclosure made to a journalist could harm the United States or aid a foreign country—it does not even require proof that a disclosure actually caused any harm.

Like all nine of the whistleblowers prosecuted during the Obama administration, Albury was prosecuted without any evidence from reporters identifying their sources. Indeed, with one exception, the government has not even sought such evidence. (A subpoena was issued to James Risen in the Sterling prosecution, but after the Fourth Circuit upheld it, Risen was never called to testify.) The new reality is that journalists and their sources live in a “post-subpoena” world, where a government armed with massive new surveillance technology and unilateral authority to issue NSLs can identify and prosecute leakers without any need for evidence from a journalist. This reality requires a serious re-thinking of the ways in which the public interest in disclosure can appropriately be taken into account to ensure that citizens have the information they need for self-governance to work.

Courts currently view the First Amendment as affording virtually no protection to a government whistleblower who discloses classified information and they extend virtually dispositive deference to the Executive in its classification decisions. Recognizing that this lack of leaker protection creates a risk of substantial over-deterrence, some scholars have taken refuge in the thought—supported by the outcome of the Pentagon Papers litigation—that the information that truly needs to come out will make its way to the public through confidential sources working with reporters, who do have First Amendment protection and can be expected to protect their sources’ anonymity. No more.

The rules of that game no longer work, as 11 consecutive Espionage Act prosecutions now attest. Given this reality, there would seem to be two paths forward: Either a technology develops that can once again allow whistleblowers confidently to communicate with reporters in a confidential manner (although no such solution is currently in sight), or the type of First Amendment defenses that have been widely understood to protect the press when it discloses national security information need to be extended to whistleblowers directly. When Congress a few years back attempted to craft a federal shield law, for example, its legislation provided that the proposed reporters’ privilege would be overcome when “nondisclosure of the [reporter’s] information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in newsgathering and maintaining a free flow of information to citizens.” Free Flow of Information Act, S. 2831, 109^th Congress, Section 4(b)(4) (2006).

Heidi Kitrosser has written insightfully on the need for the development of legal protections for whistleblowers and suggests that this same approach could be modified to provide protection to whistleblowers. To establish in an Espionage Act leak case, for example, the government could be required to establish that there was no objectively reasonable basis for the leaker to believe that the public interest in disclosure outweighed national security concerns. Prof. Kitrosser identifies other factors that could be added to the Espionage Act equation to prevent over-deterrence, such as permitting courts to take into account how and to whom information was disclosed, the extent to which the disclosed activity was illegal, and the public debate prompted by a disclosure as a measure of its public significance.

The Albury guilty plea underscores the significant risks of not taking some such steps to address the current imbalance, which can choke off information the public vitally needs. As Jameel Jaffer frequently puts it, imagine the world we be living in today if CIA black sites, the abuses at Abu Ghraib, the government’s techniques of mass surveillance and other vital information disclosed by whistleblowers were all still unknown.

David Schulz is the Floyd Abrams Clinical Lecturer in Law and the co-director of Yale's Media Freedom and Information Access Clinic. You can reach him by e-mail at david.schulz at yale.edu

Posted 10:00 AM by Guest Blogger [link]

Sunday, April 22, 2018

“Not the Next Korematsu”

Richard Primus

Last spring, I published a short essay about the relationship between the entry-ban litigation and Korematsu v. United States. I argued that the shadow of Korematsu—and, more particularly, the opportunity to repudiate Korematsu—could well be on the Justices’ minds as they confronted the entry ban. Obviously, the current case differs from Korematsu in several ways, and it wouldn’t be legally necessary to repudiate Korematsu in order to strike down the entry ban. But if a majority of the Court were inclined to strike down the entry ban, it’s not hard to imagine someone’s writing an opinion that includes the sentence “Korematsu was wrong the day it was decided.”

I still think that officially repudiating Korematsu is probably an attractive prospect for most of the Justices. And that prospect aside, I’m confident that on the merits of the current case, the entry ban should be struck down as unconstitutional. So if the Supreme Court does the right thing—a possibility that cannot be precluded—then we might well see overt discussion and repudiation of Korematsu.

But the deepest lesson of Korematsu is one that ought to make us unsurprised if the Supreme Court upholds the entry ban orders.

That lesson, of course, is this: the Supreme Court, as an institution, is perfectly capable of signing off on morally evil executive branch policies that are ostensibly (but not really) necessary for national security, even when the legal arguments for the executive branch are weak. The Court, as it existed in the 1940s, decided Korematsu the way it did. Three dissenters at the time, and pretty much the whole legal profession soon thereafter, regarded the decision as a terrible mistake. But the Court did what it did.

Given the low regard in which Korematsu is now held, we can be pretty confident that no foreseeable Supreme Court will uphold an exclusion order (or an internment order) aimed specifically at American citizens of Japanese descent. But there is little reason to think that an institution that produced Korematsu under the conditions of the 1940s could not, mutatis mutandis, make some analogous moral and legal blunder in the 2010s. We have a case where the executive branch acts for bigoted reasons, produces a national-security rationale, and demands deference from the judiciary in view of its supposedly superior decisionmaking competence. If the order looked just like the Korematsu order, the Court probably wouldn’t go for it. Everyone pretty much thinks that would be unconstitutional. But it’s often easier to know that some executive-branch policy should have been held unconstitutional decades ago, when everyone you know today thinks that policy was unconstitutional, than it is to recognize what should be done on a new set of facts in the present. And indeed, if the Court does uphold the entry ban, it could well point to Korematsu as justification—not by relying on it, but by distinguishing the case.

Cases from the constitutional past that are widely regarded as bad mistakes—anti-canonical cases, as I described them twenty years ago—are sometimes used to create a false sense of security about decisions in the present. Whatever unpleasant thing we might tolerate today, we say, is not the same as that bad thing that happened in the past. De facto segregation is bad—but by pointing out that it isn’t the same as official Jim Crow segregation, we help assure ourselves that we’re doing it right. Courts in the age of Jim Crow might have had a parallel thought: the contrast with slavery could make Jim Crow look tolerable, just as the contrast with Jim Crow helps make de facto segregation look tolerable today. (Reva Siegel wrote well about all of this.) To be clear, the fact that there exists some consensus evil in the past doesn’t prove that the current situation is merely one more evil that should be overcome: maybe de facto segregation is and should be tolerable, constitutionally speaking. It’s not an easy question, at least not to people who confront it in 2018. (What people will think when they look back from 2118 is something I’m not qualified to predict.) The point I’m making here is simply that distinguishing a current case from some past evil shouldn’t be enough to establish that what’s happening now is constitutionally acceptable. It might just be false comfort.

A few months ago, I accepted a Federalist Society invitation to debate the constitutionality of the entry ban with another law professor—a defender of the Trump Administration’s executive orders. He offered about as good a legal defense of those orders as I have heard. As part of framing his remarks, my interlocutor mentioned that the Supreme Court confronted the previous version of the entry ban last June and, though the Court did not endorse the President’s policies, it did not reject them, either. (What the Court did last June was to allow the second version of the entry ban order to remain partly in place pending a full decision on the merits that everyone knew would never come, because Executive Order 13780 would become moot before any such decision was rendered.) Last June’s ruling by the Supreme Court was of course considerably less condemnatory of the entry ban than most lower-court decisions on the entry-ban issue had been. In the Fourth Circuit, for example, the ban had been diagnosed as the product of anti-Muslim bigotry and held unconstitutional accordingly. According to my interlocutor that day, the Court’s refusing to do what the lower courts had done signaled that the lower courts’ view was likely overheated: the fact that the Court had confronted the entry ban and not felt the need to take decisive action striking down E.O. 13780 indicated that E.O. 13780 was not a flagrantly unconstitutional instantiation of governmental bigotry. My colleague summed up the point by saying that the Court’s apparent tolerance for the entry ban should tell us that whatever the best view of the issue in the end, this case is not the next Korematsu.

I know what he meant. But there’s an irony in the characterization, and an instructive one. The logic of the idea is that if the entry ban were really the horribly bigoted thing that the Fourth Circuit thought it was, the Supreme Court would not have tolerated it, because the Supreme Court can be relied upon to have a sensible view of what is and isn’t horribly bigoted government conduct. But to say that the Court’s tolerance for this executive order makes the entry-ban case different from Korematsu is to forget something fundamental about Korematsu. It’s this: Korematsu was a case in which the Supreme Court of the United States upheld an order rooted in executive-branch racism. What we should learn from Korematsu is precisely that the Court is capable of upholding grossly bigoted executive orders, executive orders so shameful that the name of the case upholding them quickly becomes a consensus byword for constitutional law at its ugliest. So it makes little sense to say that the Court’s tolerance for an executive action should reassure us that that action is unlike the action at issue in Korematsu. It makes at least as much sense to think that this case will be like Korematsu if the Court upholds the executive order. After all, what the Court did in Korematsu was uphold a bigoted order that should have been held unconstitutional.

I hope to read an opinion in this case that contains the sentence “Korematsu was wrong the day it was decided.” But if the entry ban order is upheld, we should not be surprised to read an opinion in which the Supreme Court justifies its decision in part by noting that this case is not Korematsu. Which of course it isn’t; history rarely repeats itself that cleanly. But admirable decisionmaking requires more than condemning the precise thing that everyone has agreed to condemn for more than half a century. And if the Court pronounces the entry ban constitutional, we should not make the mistake of thinking that that pronouncement means that the entry ban is any better in our day, morally or constitutionally, than the Japanese exclusion order was in the 1940s. The Court upheld that one, too.

Posted 8:46 PM by Richard Primus [link]

On the so-called "Global Injunction" question in the Travel Ban case

Marty Lederman

The Supreme Court’s final oral argument of the term, on Wednesday, will be in the “Travel Ban III” case, No. 17-965, Trump v. Hawaii. I’ll have a post shortly about the merits of the case. For now, I thought it was worth posting a few thoughts about the almost forgotten, but potentially significant, third Question Presented in the case: “Whether the [district court’s] global injunction is impermissibly overbroad.”

“Global” is something of a misnomer—as is the more commonly used adjective “nationwide injunction.” The issue is not, in fact, one of the geographic scope of an injunction. No one disputes that a district court’s prohibitory injunction against a defendant (including a governmental defendant) ordinarily applies “globally”—that is to say, it prohibits the defendant from acting upon the plaintiffs in the specified way wherever they may be found. “[T]he District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction.” Steele v. Bulova Watch Co., Inc., 344 U.S. 280, 289 (1952).

Moreover, it is undisputed that third parties—parties not before the court—can be incidental beneficiaries of an injunction that’s designed to remedy the plaintiffs’ injuries. Think, for example, of a prohibition against assigning plaintiffs to a separate-but-equal school, or a prohibition on emission of pollutants that harms a neighbor’s property, compliance with which will benefit all the nonplaintiffs nearby, too. Beyond that, it’s also undisputed that an injunction can specifically, and permissibly, prohibit the defendant from acting upon such third parties (i.e., nonplainitffs) where that’s necessary in order to provide complete relief to the plaintiffs themselves (once again, think of the desegregation order, or a redistricting order against a state that’s necessary in order to remedy an equal protection or First Amendment violation suffered by the plaintiffs).

The issue du jour, however, is whether a district court has the power to “strike down” a government program across-the-board—to prohibit a government defendant (here, the federal government) from applying the challenged policy to anyone and everyone, including nonparties—even where such categorical or “programmatic” relief is not necessary to afford complete relief to the actual plaintiffs before the court. This question is increasingly arising in challenges to controversial federal executive actions, such as the Deferred Action for Parents of Americans (DAPA) in the Obama Administration; an Obama-era Department of Labor regulation that would have made millions of workers eligible for overtime pay; and the Trump Administration’s efforts to condition eligibility for certain law enforcement grants on compliance by a so-called “sanctuary city” with requests to assist federal immigration officers in removing immigrants from the United States.

In the Hawaii travel ban case, the plaintiffs are the State of Hawaii and three U.S. persons who have relatives from Syria, Yemen, and Iran seeking immigrant or nonimmigrant visas. The trial court’s injunction, as modified by the court of appeals, prohibits government officials from implementing Proclamation 9645’s bans on permitting the nationals of seven countries (Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen) to enter the United States against all covered aliens except those who lack “a credible bona fide relationship” with any person or entity in the United States. That is to say, the injunction protects potentially millions of persons who are not plaintiffs in the case and who (arguably) lack any relationship at all with the plaintiffs. The third Question Presented is whether the district court had the power to issue an injunction of that breadth.

The government says no. It invokes the common doctrinal adage that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” (Califano v. Yamasaki (1979)), and argues that the plaintiffs’ purported injuries would be fully redressed by an injunction limited to the identified, excluded relatives of the individual plaintiffs and to the prospective students, employees and guests of Hawaii’s colleges and universities. The injunction, on this view, is invalid as to “numerous other aliens abroad to whom respondents have no connection whatsoever.”

I am not going to go into much detail here about the merits of the “global injunction” question, which have been extensively debated in a series of recent articles by scholars such as Sam Bray, Amanda Frost, Zayn Siddique, and Howard Wasserman. It suffices here simply to identify the principal arguments against such injunctions, of which three are most prominent (and all of which are described in greater detail in Bray’s article):

The first argument is that because there is no “case or controversy” between the federal defendant and the nonplaintiffs who benefit from an injunction that is unnecessary to confer full relief on the plaintiffs—no case or controversy because those nonplaintiffs are not parties to the suit—a district court lacks any Article III authority to issue such relief. Sometimes, this Article III argument is put in terms of the actual plaintiffs only having “standing” to seek a remedy for their own injuries (and, in a class action, for injuries to other parties nominally before the court whom they represent).

The second argument is that even if such an injunction of that scope would be constitutional, a district judge lacks affirmative authority to issue it because Congress, in the Judiciary Act of 1789, conferred on the federal courts jurisdiction over “all suits ... in equity” and, according to the Supreme Court, such equitable jurisdiction extends only to application of “the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.” Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318 (1999) (internal citation omitted). Accordingly, the relevant question (at least according to the Grupo Mexicano majority) is whether the relief in question “was traditionally accorded by courts of equity.” The Court concedes “that equity is flexible; but in the federal system, at least, that flexibility is confined within the broad boundaries of traditional equitable relief,” and therefore precludes “a type of relief that has never been available before.” (The four dissenting Justices in Grupo Mexicano, by contrast, accused the majority of relying upon “an unjustifiably static conception of equity jurisdiction,” noting that because the Court has long “defined the scope of federal equity in relation to the principles of equity existing at the separation of this country from England,” it had “never limited federal equity jurisdiction to the specific practices and remedies of the pre-Revolutionary Chancellor.”)

According to Bray and other critics of “global” or “programmatic” injunctions, the pre-1789 Chancellor never exercised such broad remedial authority, nor anything analogous to it—and therefore Congress did not confer such authority upon federal district courts when it gave them the power over suits “in equity.” Those on the other side of the question, by contrast, insist that such relief is sufficiently analogous to pre-1789 practices or, at the very least, is a reasonable extrapolation of the principles of pre-1789 equity. In particular, defenders of the practice might point to dicta from the Supreme Court that courts of equity “may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” Virginian Railway v. System Federation, 300 U.S. 515, 552 (1937); see also Trump v. IRAP, 137 S. Ct. 2080, 2087 (2017) (the purpose of interim equitable relief “is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward,” and in awarding a preliminary injunction “a court must also “conside[r] ... the overall public interest”).

Third, opponents argue that even if courts have jurisdiction to award such relief, they should be deeply reluctant to do so for various equitable reasons, including, most prominently, to deter forum-shopping, to encourage “percolation” of the legal question among various courts, and to prevent the federal government from being bound across-the-board by one, aberrant trial court decision even where the government prevails before the majority of courts (akin to some of the reasons why the Court held, in United States v. Mendoza (1984), that offensive, nonmutual collateral estoppel does not apply against the federal government). Thus, for example, even the court of appeals that most recently affirmed a “nationwide” injunction in a "sanctuary city" case acknowledged that “[i]n light of [the] concerns with limiting the input of other courts and with forum shopping, nationwide injunctions should be utilized only in rare circumstances.”

With that background in place, I wanted to focus here upon four interesting aspects of the “global injunction” question as it arises in the Trump v. Hawaii case to be argued on Wednesday.

Posted 4:30 PM by Marty Lederman [link]

Thursday, April 19, 2018

Presidential Impeachment in Partisan Times

Stephen Griffin

I’ve posted an essay, “Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change” to SSRN. The argument of the essay runs as follows. The unconventional presidency of Donald Trump has made presidential impeachment once again an issue of national concern. But do legal academics have a good grasp on what happened in past presidential impeachments with respect to the meaning of the constitutional standard (“high crimes and misdemeanors”)? In this essay, I argue that prior scholarship has largely ignored the historical context and thus the real lessons of the three most prominent instances in which Congress attempted to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and Bill Clinton. The essay then goes beyond these historical episodes to make a contribution to the ongoing debate in constitutional theory over theories of informal constitutional change.

Impeachment scholarship has been predominantly originalist. There is a large measure of consensus on the meaning of the “high crimes and misdemeanors” standard, which I call the “Hamiltonian vision.” The Hamiltonian vision is that impeachment can be used for a broad category of “political” offenses. Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law. Despite this scholarly consensus, the historical reality of the Johnson, Nixon, and Clinton impeachments is quite different. Contrary to prior legal scholarship, I argue that due to the rise of organized political parties, a party-political logic overwhelmed the framers’ design and created a situation in which the position that impeachment is limited to indictable offenses could not be effectively discredited.

I then use the example of impeachment to generalize about the process of informal constitutional change and understand what I call its “historical logic.” The essay goes beyond a simple reaffirmation of living constitutionalism to advocate the value of “developmental” analysis. Developmental analysis makes explicit what is implicit in most work on living constitutionalism – that it rests on a historicist approach in which institutional changes such as political parties establish new constitutional baselines which are the practical equivalent of constitutional amendments. These baselines then form the new context going forward for evaluating the constitutionality of official action.

Posted 11:08 AM by Stephen Griffin [link]

Thursday, April 12, 2018

The Trump Amendment

Gerard N. Magliocca

I am currently writing an article about the ongoing effort to revive the proposed Equal Rights Amendment to the Constitution. Last year, Nevada ratified the ERA. Nevada's argument was that although the ratification deadline imposed by Congress for the ERA expired in 1982, Congress can waive that requirement and declare the amendment part of the Constitution if and when 3/4ths of the states ratify. My tentative conclusion is that this argument is correct, though the fact that some states rescinded their ratifications in the 1970s complicates the question of how we will know when three-fourths of the states have ratified.

Initially, I wondered whether I should write a law review article on this, as the question can be seen as hypothetical. Yesterday, however, the Illinois Senate voted to ratify the ERA. Resolutions to do the same are now pending in the Illinois House and in other state legislatures. As a result, I'm working away on the draft with all deliberate speed.

It is hard to avoid the thought that the revived interest in the ERA is, in part, a backlash against the actions of our current President, now supplemented by the #MeToo movement. The ERA as part of the Constitution would be an ironic result of the Trump Presidency, to say the least.

UPDATE (April 20): The New York Times has an editorial in today's edition on the ERA entitled "A Rebuke to Trump, A Century in the Making." Perhaps they were inspired by my post.

Posted 11:06 AM by Gerard N. Magliocca [link] (52) comments

Saturday, April 07, 2018

The real cost of Masterpiece: It’s personal.

Guest Blogger

Paul Smith

Lots of people, when they hear about the Masterpiece Cakeshop case being considered by the Supreme Court, tend to sympathize with the shop owner who believes he shouldn’t have to sell one of his wedding cakes to a same-sex couple, despite Colorado’s law banning such sexual orientation discrimination. After all, he seems like a sincere person trying to live according to his own religious beliefs. And why can’t the same sex couples of Denver buy their wedding cakes somewhere else?

However as a gay person I see fundamental problems with that approach, and most of the members of our community I’ve spoken to agree. Why? In part, of course, it’s because we will bear the brunt of the harm if the Supreme Court says it’s ok for a retail business owner to follow his own beliefs when they conflict with anti-discrimination protections. But it’s more than that. Because of our life experience, we know the real cost of living in a place where we might be refused if we walk into a business and ask for service simply because of who we are.

Like just about every gay person, I grew up struggling to accept my own nature, ashamed and afraid of rejection and humiliation. That stage of life passes for most, as it did for me. But even now, long past the difficult process of coming out, questions of how to relate to the broader world can be a part of daily life. There remains a need to make judgments – often every day – about how “out” to be in a given situation. Nearly everyone in the gay community knows what I mean. At work, you are meeting a new colleague or client. Do you reveal yourself? You’re walking down the street on a sunny day. Do you hold hands with your spouse? For most of us, even in today’s relatively enlightened times, to be gay or lesbian (or bisexual or transgender for that matter) is to go through life making decisions multiple times a day about how to relate to those we encounter, weighing the value of honesty against the risk of rejection or even violence.

That I have the option to avoid revelation makes my experience different, of course, from that of racial minorities or women who also encounter discrimination more frequently than we like to suppose. But the stress of the constant decision-making is itself wearing.

In those states that ban sexual orientation discrimination by stores and other places of public accommodation, at least we have the comfort of knowing we will not be sent away for being who we are. Sure, we may still have to deal with the hotel clerk who cannot understand why I and my husband are sharing a room or why we don’t want two beds. But we’ll get to check in, and thereafter we’ll be treated with respect. And that is a great reassurance.

That reassurance will go away, though, if the Court recognizes the right of a business owner to refuse service to us based on religious or moral disapproval of gay people. No matter how “out and proud” one may be, there is still lurking in the background the experience of struggle to get there, and there is still the daily navigation of the world choosing when or whether to be visibly who you are. And that question becomes even more fraught if there is a risk, every time we walk into a business, that we will be sent away, judged morally unworthy by the person whose goods or services we were just trying to buy — or if, as the Justice Department told the Supreme Court, businesses have a right to post signs in shop windows saying “same-sex couples not served”.

People in this country have every right to personally disapprove of my marriage. But they should not have a right to translate those beliefs into exclusionary policies when they open a business like the Masterpiece Cakeshop. They can choose who to associate with in their private lives. But not when they open a business serving the public. That is where we have always drawn the line in this country, and that shouldn’t change just because a purveyor of really excellent wedding cakes asks for the right to refuse to serve us because of who we are.

Paul Smith is a Professor at Georgetown Law School. You can reach him by email at paul.smith at georgetown.edu

Posted 5:41 PM by Guest Blogger [link]

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