The Court of International Trade held today that most of the Administration's tariffs are unlawful. The Supreme Court might as well cancel its summer vacation. Presumably, the Administration will want review on the merits quickly. A stay pending appeal is not that helpful here, as no foreign nation will negotiate on trade issues when the legality of the tariffs is doubtful.
We'll see if this decision pries Abrego Garcia loose from El Salvador, as I speculated a few weeks ago.
Trump under Section 3 of the Fourteenth Amendment is merely de facto president of the US. And originalism is an effort to develop a novel interpretation of the Constitution, not one faithful to history. Click this link to find out why.
One puzzle created by today's emergency order is that nobody now has a reason to bring the merits of overruling Humphrey's Executor to the Court. Anyone litigating this issue received a clear signal of the outcome. Why would they bring a case to the Court? Thus, it's possible that Humphrey's Executor will formally remain the law but be ignored in practice. The Court should have granted certiorari and simply overruled Humphrey's Executor on the slow-poke docket.
A side note. This order is the first Supreme Court endorsement of central bank independence as a constitutional principle. That is no small thing, as I will explain in another post.
The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.
Justice Robert Jackson, concurring in Youngstown.
For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).
The rule of law provides the foundation for structuring elite domination and a forge for fashioning the weapons of the weak. The substance of law inevitably reflects the interests and values of the lawmaking, law enforcing, and law interpreting class. One hardly needs to be a Marxist to understand how the law of property, contract, and business associations privilege those who have property to bestow by contract or protect by incorporation. The freedom of the press secures the rights of those who have access to a press. Elites that govern by law nevertheless provide a pathway by which the less fortunate successfully make rights claims. The Supreme Court vindicated Joseph Lochner’s right to work his immigrant bakers more than ten hours a day, but the same justices would have vindicated the right of those bakers to receive their contracted-for wages. A small incorporated black church in rural 1910 Alabama had the same limited liability as U.S. Steel.
At yesterday's birthright citizenship oral argument, several justices (most notably Justice Kagan) expressed concern about the appellate void I described back in March: What if the government loses in the district court or court of appeals and simply declines to appeal? In a clear-cut case, where the government loses across the board, this strategy could deprive the Supreme Court of appellate jurisdiction and thereby prevent the establishment of any nationally binding precedent. The government could then defy a lower court judgment, daring it to enforce contempt sanctions without the cooperation of the executive branch or backup from the Court.
In a world without universal injunctions, the government would not need to go so far as defying lower court orders to exploit this appellate void. It could comply as to the plaintiffs, while refusing to treat any adverse lower court decision as binding precedent. If all of the government's losses are in district court, as might be the case for truly clear-cut constitutional violations, those decisions would not in fact establish any precedent, since district court decisions are non-precedential. In contexts where a class action is unavailable, this would leave anyone who lacks the wherewithal to bring their own suit without a judicial remedy. For something like the birthright citizenship order, such persons could number in the millions.
This possibility has always been the strongest practical objection to universal injunction abolitionism and the narrow, private-law model of Article III that it rests upon. But the objection carries less force in a world where the government can be counted upon to appeal its defeats, preserving the Court's power to establish nationally binding precedents that are functionally indistinguishable from universal injunctions. Yesterday, the solicitor general insisted that we still live in that world. But the justices did not seem so sure. Nor did they seem sanguine about the possibility of widespread constitutional violations falling into the appellate void.
The future of universal injunctions--and perhaps the birthright citizenship order--might turn on these questions.
One thing that was clear from today's argument is that the Court will not reach the merits yet. After another argument in October, maybe. Or maybe not until the circuit courts have weighed in.
The Solicitor General mentioned today the Government's merits argument rests in large part on the claim that "subject to the jurisdiction" in the Citizenship Clause requires that the parents of the children have a domicile within the United States. That's wrong for several reasons, but here's one that relates back to an argument that I made in some earlier posts.
The children of "gypsies" were expressly mentioned as people who would get birth citizenship under the Citizenship Clause. Traditional "gypsies" did not have a domicile. Indeed, you might say that the lack of a domicile (e.g., "wandering band of gypsies") is what defined that group of people and explains why they were persecuted for centuries. You can't reconcile that with a domicile requirement for birth citizenship.
For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).
Mark Tushnet
It’s commonplace to observe that major civil rights organizations from the 1910s to the 1960s received significant financial support from Black professionals and businesspeople who provided services to the Black community. Often that observation is coupled with comments about the ways in which that source of funding gave the organizations’ programs a middle-class tilt. And it is also sometimes coupled with the explanation: These contributors were insulated from retaliation by the white community in ways that, for example, schoolteachers, sharecroppers, and tenant farmers were not.
Though he doesn’t focus much on the phenomenon just described, Dylan Penningroth foregrounds a deep explanation for it. Black professionals and businesspeople had the resources they did because they had ordinary contract and property rights, the same rights that whites had. And, indeed, a perhaps stronger point: The professionals among them—the barbers, dentists, and insurance agents—were often able to build their businesses because they had licenses from the white-dominated state.
And things could have been different. Penningroth mentions an abortive effort to impose licensing requirements for washer-women in Atlanta. Professional licensing could have been administered as literacy requirements for voting were: nominally neutral as to race but in practice racially discriminatory. As I’ll argue, we can see hints of this sort of difference at several points in Penningroth’s narrative.
This week at Balkinization we are hosting a symposium on Dylan C. Penningroth's new book, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).
We have assembled a terrific group of commentators, including Evelyn Atkinson (Tulane), Ian Ayres (Yale), Mark Graber (Maryland), Steve Griffin (Tulane), Carol Rose (Yale), and Mark Tushnet (Harvard).
At the conclusion, Dylan will respond to the commentators.
By Katharina Pistor and David Pozen
Governance reform has become the latest flashpoint in debates over the future of Columbia. Under pressure from the Trump administration to “centralize” campus discipline and decisionmaking, our Board of Trustees has ordered a faculty-led review of the University Senate as well as a more limited, consultant-led review of its own “processes.” While we commend the project of institutional introspection, singling out academic senates for special scrutiny is a troubling development—and one that could spread far beyond Columbia unless checked.
Academic freedom—classically defined as the freedom of research and teaching—is a complicated idea, and one that has come under severe attack in our era. One question that has not received much attention, is whether academic freedom applies to the student editors of law reviews. Last year, Aziz Z. Huq and I argued that it does. This is because the academic discipline of law has delegated to students its editorial judgement about what to publish. One could imagine an alternative world in which law looked more like every other discipline in the university, with journals edited by professional academics utilizing peer review to screen articles. That is not our world, in part because we think that there are pedagogical and intellectual benefits to be had from student-run journals. One consequence is that, in their exercise of editorial judgement, law review editors should be able to make their decisions independently, free from pressure by the administration or faculty.
The Librarian of Congress joined the ranks of the suddenly unemployed last week. One fair question people might ask is, "Wait, didn't she work for Congress?" If so, how can she be fired by the President without cause?
Past scholarship pointed out that the Library of Congress is an unusual institution that is neither legislative or executive. The Library serves members of Congress by, in effect, providing research assistance. But it also houses the Copyright Office, which performs regulatory functions like other administrative agencies. And it's a giant library and museum for the public.
I doubt that the Librarian wields executive power that subjects her to at-will firing by the President. But we may see that tested in court soon.
UPDATE: In the long run, maybe Congress will move the Copyright Office to, say, the Department of Commerce. Then the argument that the Librarian of Congress is an executive official would be weaker.
Editors of constitutional law casebooks scramble at the end of each Term to edit the Court’s important opinions of the Term into a supplement available for use in the fall semester. The task is exacerbated by the Court’s tendency to clump important opinions in its last few opinion days. In the pre-electronic early 1990s the best you could do, at least if you didn’t go to the Court to pick up slip opinions, was to use the US Law Week, which typically published opinions on the day they were released and was available from the library the next day.
The Court released its opinions in Lee v. Weisman on June 24, 1992. I edited it the next day, including substantial excerpts from Justice Souter’s concurring opinion, which offered his views on the original understanding of the First Amendment’s religion clauses. His opinion contained a footnote contrasting Thomas Jefferson’s articulated views and his practice as president. Arguing that Jefferson’s articulated views better expressed the original understanding, the footnote added after its description of Jefferson’s practice, “Homer nodded.”
The cuts and chaos generated by the Orwellian-named Department of Government Efficiency (DOGE) have done lasting damage to the federal government’s ability to meet the nation’s needs. The arbitrary arrests, deportations, and renditions of immigrants and those perceived to be or associated with immigrants have both caused immense, unnecessary hardship in the short-term and debased this country’s moral authority for decades to come.
Yet beyond all this devastation, these actions have had an additional destructive effect: distracting journalists and the public from transformative legislation making its way through Congress. Even among politically engaged people, few are aware that the most important social legislation since at least the Affordable Care Act is on track to gut the most important parts of the social safety net, reverse the central achievement of the Affordable Care Act, and so vandalize our nation’s finances that major social initiatives may be effectively unaffordable for a generation to come. This obscurity of President Trump’s “big beautiful bill” is very much part of the plan: everything about it has been designed to remain in the shadows until it becomes too late.
Let me take a moment to explain why I picked this cover for my new book. I rejected a standard portrait of a Justice enrobed. Instead, this is a photo of Jackson testifying before Congress in 1937.
With this choice, I wanted emphasize the importance of Congress in the Youngstown concurrence and in general. I also wanted to make the point that proper governance involves thought and wide consultation for what Jackson described as the necessity "the law be made by parliamentary deliberations"
Michael L. Rosin
In a recent Balkinization post Gerard Magliocca noted that he could find no example in federal law of “subject to the jurisdiction” not meaning “’subject to the law’ … or ‘subject to legal authority’ of the United States.” This post discusses the use of “subject to the jurisdiction” in an 1872 statute granting citizenship from birth. This was the first such citizenship legislation enacted into law after the drafting of the Fourteenth Amendment. It demonstrates that the phrase “subject to the jurisdiction” meant “subject to the legal authority of the United States.” If the phrase had meant “and not subject to any foreign power,” (the interpretation the Trump Administration gives to the phrase in the Fourteenth Amendment), the 1872 legislation would have had no effect.