Conservative Christians and the Remaking of the Conservative Legal Movement

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch

Mary Ziegler 

I discovered Ken Kersch’s work because of his important contributions to our understanding of originalism, but as Ken’s work shows, conservative constitutionalism is and was always richer, broader, and much messier than the interpretive methods that are most prominent now. It is to his work that I turn to understand the rise of the contemporary conservative Christian legal advocacy, led by organizations like the Alliance Defending Freedom (ADF), which is reshaping not only the law of everything from abortion to transgender rights but also the very identity of the conservative legal movement.

Ken committed to understanding the intellectual underpinnings of these disparate movements. He grasped, perhaps uniquely, how many intellectual traditions shape the contemporary conservative legal movement. Understanding and identifying these different threads allows us to see how mutable the conservative legal movement truly is, and to anticipate critical doctrinal and interpretive innovations before they develop.

Parliamentarian Facing Key Rulings on Reconciliation Bill

David Super

      Among the most important decisions concerning the massive budget reconciliation bill pending in the Senate will be made far outside the glare of public attention.  Some time in the next week or so, a handful of Senate staff from each party will meet with Senate Parliamentarian Elizabeth MacDonough for a peculiar ritual known as a “Byrd Bath.”  Almost certainly, no senators will be present.  The result of these few hours of conversation will have a profound effect on the future of U.S. social policy.

     The budget reconciliation procedures Republicans are relying upon to move President Trump’s “One Big Beautiful Bill” provide one of the rare opportunities to circumvent the filibuster, which otherwise requires some bipartisan support for legislation to move.  Half a century ago, the Senate agreed to this deviation from its traditions of forced compromise to allow important fiscal legislation to move relatively unobstructed.  Senators were clear, however, that they did not want budget reconciliation’s reach to spread to allow narrow majorities to impose their will on primarily non-fiscal matters.  The Byrd Rule reflects that sentiment, blocking provisions that disregard Congress’s fiscal planning process, those with no clear fiscal impact, and any other if “it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”.  Any such provisions may move in a reconciliation bill only if sixty senators – the same number required to end a filibuster – vote to waive the point of order.

     Previously the parliamentarian rejected Republican attempts to defund Planned Parenthood via reconciliation, ruling that anti-abortion fervor was driving the provision and any modest savings were “merely incidental” in its sponsors’ eyes.  Similarly, she prevented Democrats from increasing the minimum wage on reconciliation – an action that would have quite large impacts on taxes and benefit programs – because she judged that those effects were “merely incidental” to sponsors’ desire to transfer money from employers to low-wage workers.  Most controversially, in 2021 she rejected several proposals to give immigrants a path to citizenship – an initiative difficult to accomplish on regular legislation because of its large fiscal cost – because she saw changes in immigration regulation as its sponsors’ key motivation.  I disagree with some of her interpretations of the Congressional Budget Act but have defended the consistency with which she applies those interpretations. 

     The House-passed reconciliation bill is well-stocked with “Byrd bait”.  Some provisions will not take the Parliamentarian long.  The House did drop its effort to radically rewrite Administrative Law by hobbling regulatory agencies as it was obviously pursuing a regulatory agenda, not a fiscal one.  On the other hand, it kept section 70302 of the House bill (and section 203 of the Senate Judiciary Committee’s proposal) whose effect is to excuse the Trump Administration’s contempt of court orders , not at all plausibly a fiscal purpose.  And section 70300 of the House bill (section 301 from the Senate Judiciary Committee) seeks to block certain settlements of suits against those causing environmental harm, not to change fiscal policy. 

     Others likely will entail a longer discussion.  Section 44111 would reduce federal matching payments for federal Medicaid coverage to states that separately spend their own funds providing comprehensive care to classes of immigrants not eligible for federal coverage.  If those states do not stop spending their own funds on immigrant health care, the bill would sharply reduce the federal matching rate for those states to implement the Affordable Care Act’s Medicaid expansion.  This raises a host of constitutional questions:  among other things, it is very much “a gun to the head” of the kind the Supreme Court held unconstitutional in NFIB v. Sebelius with respect to this same Medicaid expansion. 

     The Byrd Rule, however, does not bar unconstitutional provisions, only ones with primarily non-fiscal motivations.  (It is more than passing strange that it requires only fifty-one votes to override a point of order for violating the Constitution but sixty votes to breach a committee’s 302(a) allocation.) 

     Yet this provision’s fiscal effects, although substantial, also appear “merely incidental” to its non-fiscal effects in much the same way that the minimum wage and the path to citizenship were.  All three provisions would have had large positive or negative effects on the federal fisc, but all three are motivated by something other than federal fiscal policy:  federal regulatory policy (the minimum wage and the path to citizenship) or state fiscal policy (the pending provision on state-funded immigrant health care).  Merely changing someone’s health-care status (from insured to uninsured) is no more a matter of federal fiscal policy than changing their immigration status was in 2021. 

     A flat federal prohibition on states spending their own funds to provide health benefits to certain classes of immigrants would obviously be driven by immigration policy concerns.  That becomes no less true if one reconfigures the provision to obtain some fiscal effects by slashing separate federal payments to states.  

     Congress can, of course, attach conditions to grant programs to ensure efficient and appropriate expenditure of federal dollars, but that is not this provision.  It does not seek to regulate federal Medicaid funds but rather state-only spending.  And states’ spending on immigrant health care likely saves the federal government money by reducing the costs of uncompensated care that must be shifted onto other health care funders (such as Medicare and Medicaid).  It strains credibility to assert that primarily fiscal motives drove this provision’s sponsors to want to pressure states into acting to make their health care systems less efficient so the federal government’s costs can rise. 

     Other provisions of the House reconciliation bill also seem motivated by social policy rather than fiscal concerns.  For example, just as opposition to abortion rather than a desire for savings motivated attempts to defund Planned Parenthood through reconciliation, so too a desire to erode the separation of church and state as much as possible seems to be motivating section 110109 of the House Bill.  That section provides a 100% tax credit specifically for certain kinds of contributions to private schools in lieu of the usual deduction for charitable contributions.  Setting up test cases in the Supreme Court is not primarily fiscal policy. 

     Similarly, section 112008 of the House bill establishes a hellishly complicated “foreign entities of concern” test for the clean energy credits provided under the Inflation Reduction Act – and then eliminates the underlying credits.  Were the legislation preserving the credits, reasonable people could debate whether this new test is driven by fiscal concerns or the desire to make demonstrative statements about foreign policy.  Alternatively, if the legislation applied the “foreign entities of concern” test to tax preferences for the oil and gas industries – preferences that will continue – one might believe that it seeks to achieve meaningful fiscal effects.  As it stands, however, this provision is just one more demonstration of hostility for China, which is not fiscal policy. 

     Republicans’ narrow margins in both House and Senate seem to have discouraged their leadership from quashing obvious “Byrd bait” sought by Members.  The Parliamentarian therefore seems likely to have more work to do this year than on past reconciliation bills, where only a handful of provisions raised problems under the Byrd Rule.  In her thirteen years of service, spanning multiple changes in Senate control, this Parliamentarian has shown that she is up to the task.

     @DavidASuper.bsky.social @DavidASuper1

Ken Kersch and the Politics of Constitutional Erasure

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch

George Thomas 

Ken Kersch was a singular voice in political science. As political science has become less historically grounded and less attentive to ideas, Kersch wrote thick historical books that deepened our understanding of American constitutionalism by illustrating how our present world was constructed over time. In Constructing Civil Liberties he dismantled the progressive narrative of Whiggish constitutional development that framed our understanding of civil liberties as a steady forward march, revealing a history of conflict and discontinuity. In Conservatives and the Constitution, he turned his talents to illuminating the conservative effort to reframe how we think about the Constitution in the middle years of the twentieth century when progressive liberalism was triumphant. Kersch’s rich and detailed histories offer a capacious take on American constitutionalism and bristle with imagination—the New Deal as the end of History?—while dismantling conventional pieties. Reading Ken was always educative, but it was also a pleasure, as his voice was unmistakable, as was his occasionally acerbic wit (deployed against sanctimonious progressives and illiberal conservatives alike).

Ken Kersch and the Possibility of Inclusive and Diverse Conversation

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch

Sanford Levinson

Nothing I could write could add to Roger Smith’s wonderful tribute to a truly wonderful person, Ken Kersch.  His work was obviously important, and it would be worth remembering even if he were a lout.  But he wasn’t.  All who encountered him as a person knew that he was special, not only a person of great intelligence, with a willingness and ability to tackle truly important issues, but also a mensch, a person one wanted to have as a friend.  I was privileged to know Ken for quite a few years, and we usually had dinner at least once (which was not enough) during the semesters that I happened to be in Boston.  I last saw him in September.  Neither of knew, of course, that it would be for the last time.  Our conversations were usually casual.  Now I wish I had taken more opportunity to explore interests we had in common and to find out more about where his thinking was taking him. 

            Rogers and other participants in this symposium will address his body of work.  I want to do that indirectly, by picking up one aspect that Rogers adverts to and that increasingly absorbs my own imagination.  My own view is that Ken’s book on conservative constitutional thought is a masterpiece that should certainly be on the bookshelves of (and, more importantly, read by) anyone claiming to be interested in the general subject of American constitutional law.  It exemplifies, incidentally, the importance of “the Constitution outside the courts,” because most of the people he writes about never got close to any federal court, let alone the Supreme Court about which most legal academics unwisely obsess.  Part of the reason, of course, is that the years roughly between 1940-1990 encapsulated what we can only regard, looking backward, as liberal hegemony.  The founding of the Federalist Society was certainly a response to this reality.  Hegemonies operate by both inclusion and exclusion.  “Conservatives” like John Marshall Harlan were certainly welcome.  William Rehnquist was simply regarded as an outlier of little fundamental importance beyond his having one vote out of nine.  But his most important opinions were dissents, as was true of the “early” Antonin Scalia.  What struck me when reading Ken’s book was how many of the people I had barely heard about and certainly had never read seriously.  As Rogers suggests, one important example was Francis Schaeffer, whose book A Christian Manifesto I now have on my desk, almost certainly because of Ken’s book. 

            So I want to spend the rest of my (indirect) tribute to Ken by addressing why Schaeffer is so important, not only as a particular thinker, but, far more importantly, with regard to the possibility of genuine discourse between secularists like myself and at least some of “the religious.”  So consider only the Preface to his self-consciously titled “manifesto,” which concerns “Christ’s total Lordship in all of life.”  Acceptance of such “total Lordship” necessarily leads to “Christian resistance” of the “judicial and governmental authoritarian elite in the United States” today.

Confessions of Reviewer #2

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch 

Mark A. Graber 

The most feared curse in the American academy is “May Reviewer #2 write your obituary, speak at your memorial service, or pen a memorial essay.”  I was the infamous reviewer #2 for Ken Kersch’s first book, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law.  Within a few pages, I recognized that my recommendation was going to be positive.  The manuscript obviously merited publication by the best university presses in the United States.  Kersch knew stuff.  The text combined remarkable elbow grease with a sophisticated theoretical foundation.  After making a brief note that some of the jargon might be reduced, I largely stopped grading the manuscript and started learning.

Constructing Civil Liberties has much to teach.  Professor Kersch challenged the view that contemporary liberal perspectives on criminal procedure, labor, and education were products of rational neutral principles replacing formalist legal prejudices.  He scorned the Whig histories that liberals too often told of civil liberties.  Constitutional development, he demonstrated, was always just one set of contested principles replacing another.  The ancient regime was never as formalist as liberals pretended.  The liberal regime was never the product of pure reason as liberals pretended.  Politics structured criminal, labor and education policy as much when progressives controlled government as when conservatives were in charge.  The publication recommendation was easy.

The Better Angels of Our Nature: An Introduction to the Scholarship of Ken I. Kersch

Guest Blogger

For the Balkinization symposium in honor of Ken Kersch

Rogers M. Smith 

Kenneth Ira Kersch, who went by Ken, passed away on November 17, 2024, at just 60 years of age. He was Professor of Political Science at Boston College and the founding director of its Clough Center for the Study of Constitutional Democracy. Winner of multiple awards for his stellar writings on American constitutional development, Ken was a rarity in modern academia, a conservative-leaning scholar whose erudition, open-minded thoughtfulness, and warm, smiling presence won him genuine friends and admirers even among ardent liberals and progressives, as this well-deserved symposium makes abundantly clear.

Balkinization Symposium in Honor of Ken Kersch

JB

This week at Balkinization we are holding a symposium in honor of the political scientist Ken Kersch, who taught at Boston College for many years and who passed away last November. The participants are James Fleming (B.U.), Mark Graber (Maryland), Linda McClain (B.U.), Carol J. Nackenoff (Swarthmore), Logan Sawyer (Georgia), Rogers Smith (Penn), George Thomas (Claremont College), Dennis Wieboldt (Notre Dame), and Mary Ziegler (UC Davis).

Symposium on Burning Down the House

Andrew Koppelman

The Journal of Contemporary Legal Issues has published a symposium on my book, BURNING DOWN THE HOUSE: HOW LIBERTARIAN PHILOSOPHY WAS CORRUPTED BY DELUSION AND GREED. Thoughtful reactions from Eric Mack, Kevin Vallier, Roderick Long, Joseph Fishkin, and Rachel Lu, along with my response. When San Diego organized this book conference, I gave them the names of the people whom I was most eager to engage with, scholars I admire despite some deep disagreements. They have forced me to sharpen my own views. I am very lucky.

Abrego Garcia's Return

Gerard N. Magliocca

The upshot of this case is that presidents eventually decide that they need the good will of the courts more than they need to defy a particular court order. That realization does not always happen right away and does require prodding from diligent judges and advocates. But we're not in a constitutional crisis because the sausage takes time to make or looks unappealing during the process.  

Get a Better Source

Gerard N. Magliocca

The Government, both in the Supreme Court and today in the Ninth Circuit, cites a letter written in 1866 by Senator Lyman Trumbull to President Andrew Johnson that discussed domicile in connection with birth citizenship. The letter, as far as I can tell, was a private one. It does not reflect the original public meaning of anything. Worse still, the letter was about the Civil Rights Act of 1866, not the Fourteenth Amendment.

In short, why is this letter a relevant source for a court case? A scholar writing a history article or book can cite or quote private sources. I do that all the time. But not to establish a legal proposition in a brief. 

Trump’s Reconciliation Bill Goes to the Senate

David Super

      On May 22, the House of Representatives passed President Trump’s bill to slash taxes for the affluent as well as health coverage and food assistance for the poor.  The vote was 215-214.  With many Members not wanting to vote for the bill, House Republican leadership allowed two to vote “no” and three others not to vote at all.  The five include four purported “deficit hawks” and one New Yorker whose constituents will hate the bill’s cap on the deductibility of state and local taxes (SALT).  Three safe Democratic seats are vacant after seriously ill incumbents ran for re-election in November then died in office.  Had these Democrats voted, the Leadership would have had to require the abstainers to vote or forced one of the dissenters to change his vote. 

     The result was never seriously in doubt.  Despite all their posturing, House Republican “moderates” folded like a K-Mart puptent in a Category 5 hurricane.  Indeed, not only did they not win any moderation in the health care and food assistance cuts, they did not even try:  all their efforts focused on improving SALT deductions for their affluent constituents (which efforts largely fell short). 

     The “deficit hawks” apparently bought a slightly better brand of puptent but still folded quickly after Leadership inserted even more savage health care reductions.  The bill remained an extreme budget-buster.

     The non-partisan Congressional Budget Office – headed by a former Bush Administration official appointed by Senate Republicans – estimates the bill will increase the deficit by $1.756 trillion over five years and much more beyond that.  That five-year deficit effect is similar the ten-year impact of the bipartisan CARES Act enacted in response to a genuine crisis (the coronavirus pandemic).  But whereas the CARES Act, which many “deficit hawks” opposed, contained largely temporary measures that did, indeed, expire, this legislation hides its long-term deficit impact with artificial expiration dates that Republicans have made clear they never intend to take effect.  (I am citing only the five-year deficit effects of this legislation as the ten-year estimates, although ghastly, still dramatically understate its real effects due to these gimmicks.) 

     The House bill’s five-year deficit impact is about five times the ten-year effect of the Democrats’ Build Back Better legislation in 2021, which would have expanded health care coverage and access to child care.  Republicans unanimously opposed Build Back Better because of its impact on the deficit.  (Comparing the priorities in the 2021 and 2025 “BBB” bills is revealing indeed.)   

     Also invisible were House Republicans who care about Christians escaping overseas oppression.  Among its many cruelties, the legislation would deny food assistance to people granted refugee or asylee status based on religious persecution. 

     House Republicans’ “Rule of Law” Caucus, led by Rep. R. Van Winkle (R-NY), was apparently unbothered by provisions of the legislation that would gut the Administrative Procedure Act and block many of the kinds of lawsuits currently being filed, and won, against the Trump Administration. 

     Perhaps most tragic was the fate of House Republican champions of states’ rights and federalism.  They seem to be suffering from complete amnesia:  how else could one explain their votes for legislation chock full of unfunded mandates as well as steep penalties on states that spend their own funds to aid immigrants abandoned by the federal government?  If anyone finds a House Republican who believes in the principle of subsidiarity wandering lost in the halls of Congress, please contact the proper authorities. 

     The legislation now goes to the Senate.  To avoid uncomfortable committee votes and procedural rules restricting what committees can report out, Senate Republican Leadership will bring the legislation directly to the floor.  Senate Republicans on each of the affected committees have been meeting behind closed doors for weeks to work out a substitute that they would offer for the House bill.  Once they have agreement and get their bill drafted, they will bring it to the Senate floor and push it through quickly, likely the week of June 23. 

     Senate Republicans can afford to lose three votes.  One imagines Leadership has already authorized Sen. Lisa Murkowski (R-AK) and Sen. Susan Collins (R-ME) to vote “no”.  That means that any two other Senate Republicans can demand changes in the legislation – or block it entirely. 

     The Senate has many more than two vociferous Republican “deficit hawks” so one might think that the legislation is in deep trouble.  Alas, their commitment to fiscal rectitude seems about as ethereal as that of their House counterparts.  It is hard to identify one who has cast a tough vote for deficit reduction against their own leadership.  Perhaps business elites’ warnings that increasing the deficit this much could seriously harm the economy will make a difference, but at present party discipline seems formidable. 

     People assuming that the Senate bill will improve on the House version may be disappointed.  Moderating its transformative cuts to health care and food assistance would require either making its tax provisions less generous or increasing its impact on the deficit; moderating its deficit impact would require either increasing the health care and food assistance cuts or making its tax provisions less generous.  The wealthy special interests behind the House tax provisions will not stand down in the Senate.  Senate campaigns are exceedingly expensive so senators are unlikely to tune out big donors.  If the special interests retreat at all, it likely will only be in exchange for promises that the Senate will later recede to the House provisions.  Thus the goals of moderating the devastating cuts to low-income programs and moderating the disastrous deficit increases are in direct opposition with one another. 

     Assuming the Senate can pass its version of the legislation the seek of June 23, Republican Leadership has no intention of convening a conference committee.  That would take more time and allow Democrats to force uncomfortable votes.  Instead, Republicans on the House and Senate Committees will work quickly behind closed doors to craft a consensus bill.  The House will then take up the Senate-passed version, the Republican consensus bill, and pass it; the Senate will then do the same. 

     This is all driven by Republicans’ strong desire to enact this legislation before Congress’s July 4 recess.  This need for speed is driven by the sense that, as unpopular as the legislation is now, giving the public more time to find out what it contains will only increase the pressure on congressional Republicans.  The Administration has done a masterful job of distracting the news media and the public from its transformative legislation through its sensational, destructive, and often illegal executive actions.  That effect may be waning, heightening the sense of urgency. 

     The specific imperative to finish by July 4 is driven by a desire to protect Members from being asked difficult questions in meetings with constituents over recess while the Member can still be asked to commit to a “no” vote. 

     More broadly, despite their public protestations to the contrary, congressional Republicans are keenly aware that their legislation strips health care coverage and food assistance from millions of low-income people who are willing to work but unable to find regular employment.  Meanwhile, President Trump’s trade war chaos pushes the country into a recession.  (Why are people complaining about TACOs?  They are much better than the alternative.)  Once the economy begins shedding jobs, it will become obvious that sufficient work often is unavailable due to circumstances beyond the individual’s control.  Thus, these “work requirements” will be exposed as actually being disqualifications for the involuntarily unemployed and underemployed.  Many of those turned away in their times of need will be Trump voters.  Putting as much distance between this legislation and those families’ hardship is certainly in Republicans’ interests. 

     @DavidASuper.bsky.social @DavidASuper1

Cleansing Public Debate

Mark Tushnet

Cohen v. California properly rejected the assertion that the government has the power to "cleanse" public debate by proscribing the public use of the word "fuck" in political expression. Private entities--newspapers, in particular--are of course different. But when they police public discussion by substituting their words for those uttered by others, which the newspaper editors believe (whether for moral or profit-related reasons) shouldn't be printed, they can distort the sense of the utterances.

Newspapers and others have developed some workarounds--"the N-word" being the most prominent, "effing" or "the F-bomb" being another, with "the C-word" and (I suspect) "the K-word" on the rise. I've commented here on a puzzle about these workarounds: It seems that the concern is not with the cognitive effects of the "proscribed" words but with something like their auditory impact. 

I'm provoked to make these comments because two separate articles in today's New York Times deliberately misquote Philip Larkin's great poem "This Be the Verse,"with its first line,"They fuck you up, your mum and dad." Both times "mess"is substituted for "fuck." In one appearance the line is set in italics, signaling that it's apparently a direct quotation, though in the paragraph following the author uses the phrase "a slightly altered version" of that line (an odd phrasing, in that "mess you up" is an altered version of Larkin's line). Good poets choose their words carefully, and Larkin's choice pretty much hits you over the head with the double meaning of "fuck you up," absent (unless I'm completely out of touch with common usage today) from "mess you up" (or at least,"not present without the reader doing a lot more cognitive work than Larkin's version requires"--I can come up with real-world settings in which "mess around" is a substitute for "fuck").

I'm willing to go with the "seven dirty words" decision on the ground that sometimes it's not nice to let small children hear the word "fuck." And, more broadly, in some social settings--family dinners being the one that comes immediately to mind--everyone should probably think twice about using the word. But in print, and in connection with public affairs, reporting that Joe Biden said that Obamacare was a "big fucking deal," not a "big effing deal," and that cabinet members and Elon Musk shouted "Fuck you" at each other, or "Fuck off," and not "Eff you," seems to me a matter about which the public probably ought to be informed directly, without weasel words.

Liberation Day From Liberation Day

Gerard N. Magliocca

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. 

Originalism as Novelty and Our Merely De Facto President

Mark Graber

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.

Who Will be the Executor of Humphrey's Executor?

Gerard N. Magliocca

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. 

Emergency Powers in a Nutshell

Gerard N. Magliocca

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.

The Weapons of the Weak Before the Movement

Mark Graber

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.

Did Race Distort the rule of Taft v. Hyatt?

Guest Blogger

Black Civil Rights and Black Corporate Rights

Guest Blogger

The Appellate Void and Trump v. CASA

Andrew Coan

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.

Penningroth’s Achievement

Guest Blogger

The Government's "Domicile" Argument on Birth Citizenship

Gerard N. Magliocca

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. 

Legal Pluralism in “Before the Movement”

Guest Blogger

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.

American Bar Association Silver Gavel Award for The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It (W.W. Norton, 2024)

Corey Brettschneider

Looking for Law in All the Wrong Places: Dylan Penningroth’s Before the Movement.

Guest Blogger

Balkinization Symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

JB

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.

Review It All

David Pozen

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 of Law Reviews: Personal Statements Under Attack

Tom Ginsburg

 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.

Is the Librarian of Congress an Executive Official?

Gerard N. Magliocca

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. 

A Justice Souter Anecdote, or “Seeing a World in a Grain of Sand”

Mark Tushnet

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.”

How to Avoid Accountability

David Super

     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.

Picking a Book Cover

Gerard N. Magliocca

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" 

What Did “Subject to the Jurisdiction of the United States” Mean in the Oregon Citizenship Legislation of 1872?

Guest Blogger

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.

The Ordinary Meaning of "Subject to the Jurisdiction"

Gerard N. Magliocca

The phrase "subject to the jurisdiction" appears many times in federal law. It's in the 18th Amendment. It's in a slew of federal statutes. I can find no example where the phrase is used to mean "allegiance" or any equivalent. Instead, the phrase is always used in its ordinary sense to mean that the object (either people or places) is "subject to the law" of the United States or "subject to legal authority" of the United States.

If someone can find a contrary example, I'd be interested to hear about it. 

The Big Picture

JB

The New York Times asked 35 law professors for their assessment of the constitutional situation during Donald Trump's second term in office. They got many thousands of words, which they boiled down into an op-ed that appeared this morning.

The Times ended up using only a single sentence of what I wrote. So I publish here what I originally sent them about some of the deeper causes of our current problems.

* * * * *

For the past forty or so years the United States has been descending into a deeper and deeper constitutional rot. The signs are (1) increasing polarization; (2) increasing wealth and income inequality; (3) policy disasters like the Iraq War and the 2008 financial crisis that convince ordinary people that their government is unconcerned with their welfare; and (4) and loss of social trust--between politicians of different parties, between the public and the political classes, and between the public and almost every institution of social life, whether it be science, medicine, the media, sports, business, or the academy. Loss of social trust is the cancer of democracies.

Birthright Citizenship and DOJ's Appellate Briefs

John Mikhail

In its appellate briefs in the birthright citizen cases making their way through the courts, the Department of Justice claims that the original meaning of the Constitution’s Citizenship Clause supports President Donald Trump’s Executive Order limiting birthright citizenship to American-born children whose parents are either citizens or legal permanent residents (LPRs). Although these briefs from the government might seem at first glance to be scholarly and well-supported, a close look at them reveals that DOJ is grasping at straws. Many of the authorities on which the briefs rely are misleading or derivative, while other more pertinent sources are mischaracterized or ignored. In a post on Just Security, I discuss eight notable examples, focusing on the brief in Washington v. Trump. DOJ’s other appellate briefs seem to be virtually identical and subject to the same criticisms.

Religious Exemptions?: What the Free Exercise Clause Means

Andrew Koppelman

For those who are interested, the Civitas Institute has posted a somewhat specialized conversation between myself, Michael McConnell, and Vincent Phillip Muñoz on originalism and religious exemptions.

The Supreme Court and the Alien Enemies Act: The Limits of the Passive Virtues in Trump 2.0.

Jonathan Hafetz

The current challenge to deportations under the Alien Enemies Act of 1798 (AEA) operates on two levels: it presents an important test of due process guarantees in the United States and a barometer for assessing the Supreme Court’s approach to the Trump administration’s sweeping claims of executive power.

In its plan to carry out mass deportations, the Trump administration has seized on this rarely used Founding era statute to deport hundreds of individuals to the notorious Center for Terrorism Confinement in El Salvador. The administration says it is sending Venezuelan members of the Tren de Aragua gang, but it has deliberately avoided any judicial scrutiny of its claims and innocent people have been caught up in the dragnet.

On April 7, the Supreme Court ruled that legal challenges had to be brought through habeas corpus proceedings in the district where the individuals were confined rather than in Washington, D.C. under the Administrative Procedures Act. (I wrote more about this decision here). While this procedural ruling handed a temporary victory to the Trump administration, the Court was unanimous in ruling that individuals subject to removal under the AEA were entitled to notice and an opportunity to challenge their deportations. But the Trump administration effectively ignored the Court, instead shuttling people between detention centers before trying to remove them in the dead-of-night without anything approaching due process (giving them, for example, at most 24 hours to challenge their removal without telling them where or how, and doing so only in English, a language many do not understand).

This attempted end-run around the Supreme Court mirrors the administration’s actions in the case of Kilmar Abrego Garcia, the Maryland man who was illegally—and mistakenly—deported to El Salvador (albeit not under the AEA). On April 10, the Supreme Court, in an unanimous ruling, directed the Trump administration to facilitate Abrego Garcia’s return to the United States. Once again, the Court moved cautiously, noting the district court should proceed with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs” in implementing the Court’s ruling. But the administration then spurned this olive branch, stonewalling the district judge when she tried to get any information about Abrego Garcia and insisting it had no responsibility to do anything to right the wrong and bring him back to the United States. When the administration  moved for an emergency stay of the district court’s ruling that “facilitate” meant actually doing something, it prompted a blistering opinion from Fourth Circuit Judge J. Harvie Wilkinson III, who, in the panel's opinion denying the motion, called the administration’s position “shocking” to any sense of liberty and urged it to remember that the rule of law is “vital to the American ethos.”

These cases underscore the limits of Alexander Bickel’s “passive virtues” in judicial decisonmaking. For Bickel, courts could achieve better and more lasting results by taking small steps and ruling narrowly, rather than issuing sweeping constitutional pronouncements. But an incremental approach designed to foster interbranch dialogue only works when the branches are open to communication. It’s a dubious strategy for a president who, like Trump, treats such overtures as weakness and an invitation to assert power more aggressively.

Amicus Brief on the Tariffs

Gerard N. Magliocca

I was pleased to join this amicus brief arguing that the tariffs are unlawful. Thanks to Michael McConnell for taking on the role of Counsel of Record.

Why is Justice Alito so trusting of the Trump administration?

Andrew Koppelman

Who knew that Supreme Court Justice Samuel Alito was such a trusting person?  The ordinarily hard-edged jurist strained to take the Trump administration at its word in his dissent from the Supreme Court’s emergency order on Saturday prohibiting the Trump administration from deporting a group of Venezuelan migrants under the Alien Enemies Act (AEA).

I reflect on this puzzling phenomenon in a new column at The Hill.

Abrego Garcia Will Return When the Administration Needs Him

Gerard N. Magliocca

 Every week I get a call from a reporter asking if we are in a constitutional crisis. In this week's edition of "No," let me sketch out a scenario for the Abrego Garcia case. First, a brief history lesson.

After Worcester v. Georgia, Georgia refused to effectuate Worcester's release from jail. President Jackson did nothing. Chief Justice Marshall lamented that this was the end of the Constitution. After six months, though, Jackson faced a bigger problem. South Carolina was defying federal authority to impose tariffs. At that point, he needed the Court on his side. So he negotiated with the Governor of Georgia and Worcester was magically pardoned.

Abrego Garcia will probably be magically produced by El Salvador when the Administration loses one of the four cases now pending on the legality of today's tariffs. The Administration will then need the Court on its side. And it's clear that Trump cares a lot about tariffs. Being in the Court's doghouse when that case is brought on the emergency docket won't be worth keeping one guy erroneously deported.

The only reason I say "probably" is that, to quote Claude Rains, it's also possible that El Salvador will announce that Abrego Garcia "died trying to escape." 

The Bank of the United States and the Unitary Executive

Gerard N. Magliocca

I'm sure somebody must have said this before, but anyway.

Under the unitary executive theory, why was the Bank of the United States constitutional? The Bank was led by a Director who could not be removed by the President. It was the most "independent" independent agency in our history. This was, of course, one reason why the Bank was unraveled in 1836.

Perhaps the answer is that central banking is not part of the executive power. This would explain why the Federal Reserve also sits outside the unitary executive. But if central banking is not part of the executive power, what else falls outside of that category?

Can the Supreme Court Remove a Solicitor General?

Gerard N. Magliocca

I introduce the following as an interesting hypothetical. Rule 8 of the Supreme Court's Rules states:

1. Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, or has engaged in conduct unbecoming a member of the Bar of this Court, the Court will enter an order suspending that member from practice before this Court and affording the member an opportunity to show cause, within 40 days, why a disbarment order should not be entered. Upon response, or if no response is timely fled, the Court will enter an appropriate order.

2. After reasonable notice and an opportunity to show cause why disciplinary action should not be taken, and after a hearing if material facts are in dispute, the Court may take any appropriate disciplinary action against any attorney who is admitted to practice before it for conduct unbecoming a member of the Bar or for failure to comply with these Rules or any Rule or order of the Court.

Query: Could the Court therefore disbar a Solicitor General from practice before the Court? Or would that effectively be an impeachment and conviction of that officer that is beyond the Court's authority? In the hypo, the person would still hold the SG office but could not perform that office's main function.