Government Executive - Authors - Garrett Epps

Analysis: Can Trump Pardon Himself?

Garrett Epps, The Atlantic — Mon, 17 Dec 2018 10:04:41 -0500

On June 4, President Donald Trump tweeted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”

Trump is not the first president to consider a self-pardon. On August 1, 1974, Vice President Gerald Ford met with Alexander Haig, an aide to Richard Nixon, who raised the possibility that the president might: invoke Section 3 of the Twenty-Fifth Amendment if impeached by the House and step aside temporarily on the grounds that he was “unable to discharge the powers and duties of his office,” then reassume office if the Senate failed to remove him; “plea-bargain” with Congress for censure instead of removal; pardon the other Watergate defendants and himself, then resign.

Or Nixon might resign and Ford might pardon him. In his 2009 book, The Presidential Pardon Power, the political scientist Jeffrey Crouch suggested that the point of the meeting was for Haig to let Ford know that, as president, he would have the power to pardon Nixon before indictment or trial.

Four days later, the Justice Department produced a memo arguing that under “the fundamental rule that no one may be a judge in his own case,” a president could not pardon himself. On August 9, Nixon resigned; a month later, Ford granted him “a full, free, and absolute pardon” for all federal crimes committed during his presidency.

Since then, the idea of a presidential self-pardon has floated on the fringes of constitutional dialogue. Scholars are split on whether the president’s constitutionally conferred power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” includes self-pardon. One side points out, correctly, that the text of the Constitution limits the pardon power in only one respect—“cases of impeachment”—and thus can be read as unlimited in every other way. But the other side notes, also correctly, that there is no mention of self-pardon in the framing or ratification debates, nor in the legal history of pardons. As the late University of Chicago scholar Philip Kurland, who during the Watergate hearings helped the Senate Judiciary Committee conclude that Nixon had obstructed justice, once summed up the literature: “Obviously there’s no answer.”

In 2018, of course, scholars’ views don’t mean much. The current constitutional rule is Donald Trump can do anything he can get away with. The president operates by hotel-burglar logic: If people don’t want to be robbed, they ought to lock their doors; if the Founders didn’t want Trump to do something, it’s their own fault for not writing “the president can’t do this.”

But even if Trump could get away with a self-pardon, would it do him any good?

The most crucial calculation for a self-pardoning president is when the pardon takes place. Suppose that Trump decides to fire Special Counsel Robert Mueller and also pardon himself and his associates for any federal crimes they may have already committed. Everybody’s off the hook.

But there’s a catch: One possible charge against Trump is that he has conspired to obstruct justice—and continues to do so. As of the date of the pardon, past acts of conspiracy could no longer be prosecuted. But if Trump blocked investigations after the pardon, he would be committing fresh acts of obstruction—which the pardon could not have covered. According to Samuel W. Buell, a former federal prosecutor who teaches a seminar at Duke University called “The Presidency and Criminal Investigations,” if the president were prosecuted for the post-pardon acts, his pre-pardon conduct could be used against him in court—for instance, as evidence of “the background and purpose” of any conspiracy he was charged with.

Moreover, the pardon itself may be a criminal act under federal law. “Lawful acts can constitute obstruction of justice when done with a bad motive,” Buell says. “I don’t see why a pardon would be any different, if it’s done for the purpose of keeping the president from being held to account.”

In his wickedly entertaining 2012 book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies, Brian Kalt, a Michigan State University law professor, imagined a president who pardoned himself regularly to cover all illegal acts committed since the previous pardon; each successive pardon would cover the previous pardon. But even an energetically self-pardoning president won’t be president forever. Eventually, one self-pardon would have to be the final one, and thus not pardonable by the president himself. The self-pardoner would be one pardon short of home free.

The more prudent course—politically, at least—would be for Trump to wait until the last day of his final term, and then issue a self-pardon just before midnight, so that anything he’s done while in office and beforehand would be covered. Pretty clever, except for two problems. First, a pardon doesn’t exempt him from criminal jeopardy at the state level. Even if he fires Mueller, regular U.S. attorneys are likely to encounter the Trump name in other investigations (Trump’s former personal attorney Michael Cohen was indicted by the U.S. attorney for the Southern District of New York, whose charging documents effectively named the president as a conspirator). So Mueller might still be a ghost at Trump’s feast for the rest of his time in the White House.

Second, Trump would leave office the day after that midnight pardon—and its consequences would then depend on his successor. A Democratic president might feel compelled by the party base to pursue prosecution despite a pardon. Even a Republican successor might be reluctant to block an investigation that turned up genuine crimes. Thus, while Trump “might want to pardon himself if it looks like he might get prosecuted,” Kalt told me, “what has to give him pause is that it might not work.”

The attorney general for a new administration could begin with an investigation of the pardon itself, then probe pre-pardon conduct, and then indict Trump for any crimes that turn up, arguing that a self-pardon is void. Trump would plead the pardon and move to dismiss the charges—and the issue would swiftly move to the Supreme Court.

Would the conservative majority uphold the pardon?

Former House Speaker Newt Gingrich probably thinks so. He recently explained that a Democratic congressional investigation of Trump after the midterms would let the world know “whether the Kavanaugh fight was worth it”—since a proper Trump judge would block any subpoenas directed at the president.

One wonders how Justice Brett Kavanaugh felt hearing Gingrich’s words. He has an uphill fight to restore his reputation with the public. To be properly cynical, this justice might see a once-in-a-lifetime opportunity to dispel the cloud on his image by voting against Trump.

And let’s remember how radical a self-pardon would seem. The last presidential pardon, of Richard Nixon, covered “all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”

That’s a highly unusual, perhaps unique, pardon. Ordinarily, pardons—even those granted before trial or indictment—cover specific offenses the recipient has committed or may have committed. Even presidential amnesties—such as Jimmy Carter’s in 1977, which pardoned an entire class of Vietnam War draft resisters—didn’t purport to cover any crime the draft dodgers might have committed, only those related to conscription and service, and only if nonviolent.

By the time Nixon was pardoned, everyone knew what he’d been up to during his presidential term. A pardon issued by Trump to Trump, however, if it were to insulate him from federal charges, might have to cover a much longer time period—he’s been running his organization since the early 1970s. And “all offenses” would thus cover a wider range of possible crimes—allegations of sexual assault, for example, and campaign-finance violations, among others. I’ve not been able to find a pardon like it.

Upholding such a broad pardon would be quite a lot to ask of Supreme Court justices, even those who owe their seats to Trump. The five votes he needs might be hard to get.

As Jeffrey Crouch points out, the use of pardons for raw personal and political advantage has become routine since the Nixon years. In late 1992, as President George H. W. Bush prepared to leave office, he and many of his associates were still under investigation by Independent Counsel Lawrence Walsh for their conduct during the Reagan-era operation that sold arms to Iran and illegally funneled the proceeds to guerrillas in Nicaragua. Four defendants had pleaded guilty or had been convicted, and two were facing trial, and new evidence had set off speculation that Walsh might summon Bush to testify before a federal grand jury—creating jeopardy of prosecution for perjury or worse.

A few weeks before Bush left office, the veteran political columnist Dan Schorr wrote a column for The Baltimore Sun, musing on whether Bush was considering self-pardon to spare himself prosecution by Walsh. (He wasn’t, Schorr concluded, while pointing out that legal experts believed that he could.) Writing in the New Orleans Times-Picayune, the columnist James Gill suggested that Bush should resign a day early and allow Vice President Dan Quayle to succeed to the office and pardon his political patron. Gill was joking—but in 2018, that scenario is hideously plausible.

In the event, Bush pardoned all the defendants, those convicted and those awaiting trial, leaving Walsh no leverage with which to make a possible case against Bush. It was effectively a self-pardon, but with no constitutional infirmity.

During the Monica Lewinsky scandal, members of Congress speculated that Bill Clinton might pardon himself. Clinton did not; he survived an impeachment trial and, at the end of his term, issued pardons of the old-fashioned corrupt variety that were aimed less at protecting himself than at rewarding political supporters. President George W. Bush commuted the sentence of I. Lewis “Scooter” Libby, a former aide to Vice President Dick Cheney, who had been convicted and sentenced for lying to federal investigators about the potential release of information identifying an undercover case officer for the CIA. (Trump fully pardoned Libby last April.)

Trump can certainly take the George H. W. Bush route by pardoning his associates, and he needn’t wait until his term is over to do so. But he still wouldn’t be out of the woods. As noted, the pardon power covers only “offenses against the United States,” so states with ambitious prosecutors, such as New York, Illinois, or California, could begin investigations of his conduct against which a federal pardon would provide no protection.

Finally, if Trump were to pardon himself, Congress could still step in and impeach him for abuse of the pardon power—possibly even after he left office. There’s historical warrant for impeachment of former officials. The most famous British impeachment began in 1787, when Parliament brought a bill against William Hastings, who had already resigned as governor-general of India; his trial dragged on for seven years before he was acquitted.

Even if Democrats don’t take control of both the House and the Senate until 2020, they can still impeach and try Trump for “high crimes and misdemeanors” after he leaves office. Conviction would carry no penalty beyond “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Given the horror with which many of his enemies regard him, a Democratic majority might be tempted to drive that stake through Trump’s political career.

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Analysis: Brett Kavanaugh Is Devoted to the Presidency

Garrett Epps, The Atlantic — Tue, 10 Jul 2018 10:11:15 -0400

Not since Warren Harding in 1921 nominated former President William Howard Taft to be chief justice has the country been presented with a high court nominee so completely shaped by the needs and mores of the executive branch as Brett Kavanaugh, unveiled Monday night as President Donald Trump’s nominee to replace Justice Anthony Kennedy.

Though Kavanaugh served as Kennedy’s law clerk during the October 1993 term, the contrast between the two men could hardly be more complete. Kennedy’s roots lay in his days of small-town private practice; he made his way to the bench from private practice, and, as a judge, he was conservative but independent. Kavanaugh has been the creature and servant of political power all his days. It would be the height of folly to expect that, having attained his lifetime’s ambition of a seat on the Supreme Court, he will become anything else.

A product of the District and its affluent Maryland suburbs, Kavanaugh attended Georgetown Prep with another D.C. princeling, Neil Gorsuch. He went on to Yale College and Yale Law School. He and Gorsuch served together as law clerks for Kennedy; Kavanaugh worked for President George H.W. Bush’s Solicitor General, Kenneth Starr, then, after Bush left office, worked with then-Independent Counsel Starr investigating the Clinton White House. In 2001, Kavanaugh went to the White House himself to serve George W. Bush, first in his legal counsel’s office and then, for five years, as his staff secretary, ensuring a smooth flow of paper among the president and his aides. While in the White House, he married another Bush retainer, Ashley Estes, who had served for nearly a decade as Bush’s personal secretary. Bush originally named Kavanaugh to the Court of Appeals for the District of Columbia Circuit in 2003, though Democratic opposition delayed his confirmation until 2006.

Much will be made of the nominee’s deep religious faith and his many charitable works. He certainly appears to be a man of large intellect and sterling character. But this assiduous courtier’s brilliant career has seldom been even momentarily exposed to the world beyond the Washington Beltway, in which most Americans live with the decisions made inside it. Indeed, Kavanaugh’s strong Washington identity may have been the reason his name did not appear on candidate Trump’s initial short list of court picks before the 2016 election; Kavanaugh surfaced as a possible court pick only long after the voters had picked Trump to “drain the swamp.”

After Kennedy announced his departure, some in conservative circles expressed unease with the idea of a Justice Kavanaugh. They noted that Kavanaugh temporized during the Affordable Care Act litigation, arguing that the challenge was premature; he refused to adopt the harshest possible anti-abortion position during Hargan v. Garza, a case testing whether a teenaged woman held in immigration detention could leave lockup to have an abortion. (Kavanaugh wrote that the woman was wrongly asserting “an immediate right to abortion on demand”—not that she had no right to choose abortion at all.) These quibbles are a textbook illustration of what Sigmund Freud once called “the narcissism of minor differences.” There is no reason to believe that, on issues ranging from health care to consumer and labor rights to the Second Amendment, Kavanaugh’s votes and opinions will be anything but reliably conservative—clothed at times, perhaps, in soothing rhetoric, but more consistent, and more conservative, than Kennedy’s.

Kavanaugh seems most likely to make his mark are in two areas important to Washingtonians—executive authority and administrative law. As befits an executive creature, Kavanaugh’s decisions incline toward the “unitary executive” view of presidential power, which holds that Congress cannot set up federal agencies that are not under the direction and control of the president. In administrative law, he argues that federal judges should displace specialized agencies in setting regulatory policy. Under a current doctrine called Chevron,agencies interpret the statutes under which they operate. When those interpretations are challenged in court, federal judges ask whether the statute is “ambiguous”—capable of two or more readings. If so, the judges must ask whether the agency’s interpretation is “reasonable”; if so, the courts “defer” to the agency’s reading.

Kavanaugh rejects this approach; he argues that “judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.” Instead, he wrote in Harvard Law Review,“courts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons.” Yet from what I can tell, that “best reading” is no more determinate than is “ambiguity”; indeed, it sounds to me a lot like “the judge’s view of best policy.”

One could imagine, of course, that Kavanaugh’s experience pursuing wrongdoing in the Clinton White House might incline him to a jaundiced view of presidents generally, thus offering a hope that, on the bench, he will be independent of the president who appointed him. But in a 2009 article in Minnesota Law Review, Kavanaugh, by then a life-tenured judge, announced that the independent-counsel investigation in which he served had been a mistake after all: “[T]he nation certainly would have been better off if President Clinton could have focused on Osama Bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots.” He suggested instead that Congress should, by statute, simply provide that a sitting president could neither be sued, indicted, tried, investigated or even questioned by prosecutors while in office. Problem solved.

No doubt that position was agreeable to Trump and those around him.

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No One Knows If a President Can Be Indicted

Garrett Epps, The Atlantic — Wed, 23 May 2018 10:05:19 -0400

Can the president be indicted while in office? Rudolph Giuliani, at this writing one of President Trump’s lawyers, apparently wants the public to believe that there is a clear answer to that question—the one that by coincidence favors his client.

The one thing I am sure of is that there’s no clear answer.

To begin with, no one suggests that a president can never be indicted for crimes committed in office or out of it. Of course he can. The question is whether a president can be indicted while in office.

There’s no caselaw, but we have four interesting government memos dating back half a century. I reviewed them, and asked six prominent legal scholars how we should look for an answer.

Start with the memos—one issued by the Justice Department’s Office of Legal Counsel (OLC) during the waning days of the Nixon presidency; a contemporaneous memo by the late Robert Bork, then solicitor general, advising a district court that a vice president could be indicted; a 2000 opinion by the OLC reaffirming the 1973 opinion; and, finally, a 1998 opinion by a lawyer in Kenneth Starr’s Office of the Independent Counsel investigating President Bill Clinton.

The results are: three “no indictment” opinions, and one “yes indictment” opinion. Perhaps by coincidence, the three “no indictment” opinions were issued by executive-branch lawyers (who work for presidents), while the “yes” opinion came out of the Starr probe, which pursued Clinton with a passion and finally got him impeached.

The first OLC memo was issued on September 26, 1973, not long before the October 20 “Saturday Night Massacre,” in which Nixon directed officials of the Justice Department to fire special prosecutor Archibald Cox, and the top two Justice officials resigned, leaving the dirty work to then-Solicitor General Robert Bork.

That memo considers the Constitution’s text and finds no answer. It says, correctly, that there is no “airtight separation of powers, but rather … a system of checks and balances, or blending the three powers.” The Constitution provides very limited immunities for members of Congress and none for the president. The impeachment clause says that any official impeached can be tried—at least, but not clearly only, after removal. The debates during the framing and ratification of the Constitution suggest that the president is subject to laws like any citizen, but never discuss prosecution in office. During the trials of Aaron Burr, Chief Justice John Marshall had insisted that Thomas Jefferson was subject to subpoena—but also that as president he could refuse to attend court in person, and could withhold some evidence.

Left with no clear sources, the Justice Department lawyers asked what answer would best serve the nation. An indictment in office would besmirch the “symbolic head of the nation.” In addition, “only the president can receive and continuously discharge the popular mandate expressed quadrennially in the presidential election,” making an indictment or trial “politically and constitutionally a traumatic event.” Impeachment is the first line of defense against presidential misconduct, the author noted. “This would suggest strongly that … criminal proceedings against a President in office should not go beyond a point” that they would effectively remove a president, and thus become a short-cut for impeachment.

In other words, an indictment of a serving president wouldn’t be a good idea.

The Bork memo, issued just 11 days later, assumes that those arguments are valid, and shows that they do not apply to the vice president. On a number of occasions, Bork noted, “the nation lacked a Vice President, and yet suffered no ill consequences.” Indeed, the third vice president, Aaron Burr of evil fame, served the last year of his term under indictment by two states, New York and New Jersey. The president has “complete power over the execution of the laws,” making a prosecution of himself by himself absurd, Bork argued; a “Vice President, of course, has no power either to control prosecutions or to grant pardons.”

Twenty-seven years later, OLC reexamined the question. By this time, there had been major Court decisions, all indicating that the president was not immune to the reach of the justice system. United States v. Nixon required the president to turn over his tapes to a Court seeking to use them in a criminal case against other defendants; Clinton v. Jones held that Bill Clinton could not stay a sexual-harassment lawsuit against him until leaving office. In addition, the country had lived through its second presidential impeachment and Senate acquittal. Did the Court cases change the analysis? No, said the OLC lawyers. “The Framers considered who should possess the extraordinary power of deciding whether to initiate a proceeding that could remove the President … and placed that responsibility in the elected officials of Congress. It would be inconsistent with that carefully considered judgment to permit an unelected grand jury and prosecutor effectively to ‘remove’ a President by bringing criminal charges against him while he remains in office.”

Unbeknownst to the public, in May 1998, the distinguished constitutional scholar Ronald W. Rotunda had reached the opposite conclusion. He confidentially advised then-independent counsel Kenneth Starr that one particular president, Bill Clinton, could be indicted. “The U.S. Supreme Court has repeatedly reaffirmed the state[ment] that no one is ‘above the law,’” Rotunda wrote. The independent-counsel statute itself made no sense if the counsel could not indict the president—and Clinton had consented to passage of the statute that created the office, so in effect he had consented to be indicted. Anyway, the Whitewater “scandal” was not about his conduct as president: “witness tampering, document destruction, perjury, subornation of perjury, obstruction of justice, conspiracy, and illegal pay-offs … in no way relate to … President Clinton’s official duties” and “are contrary to” his duty “to take care that the law be faithfully executed.”

All of these opinions used the same materials, even as they reached varying conclusions. (One exception: Rotunda considered the laws of other countries, many of which—for example, Papua New Guinea’s—allow prosecution.) Consider one textual point: Bork cited the 25th Amendment, which allows the temporary removal of a disabled president. This, he said, argued against indictment because it shows the nation has to have a president at all times. Rotunda also cited the 25th Amendment. Since a president can always be replaced, he wrote, indictment in office would be no big deal.

No wiser after the memos, I bounced the question off half-a-dozen distinguished scholars, of varying professional backgrounds. Each of them began as the memo writers did—text, history, precedent, and policy. None thought those sources gave the answer, and each had a different suggestion for how to move the question forward.

Peter Shane, a former OLC attorney and a prominent separation-of-powers scholar at Ohio State University’s Moritz College of Law, suggested an institutional answer: A government lawyer, he suggested, owed a duty to begin with earlier executive-branch opinions. Those are not binding; but there’s “a presumption of respect for prior opinions,” he said. But such an important question should also inspire a complete review of all the historical sources.

The earlier opinions had suggested that an indictment of a president would be too disruptive. But Shane found that argument “not very persuasive.” The Constitution permitted disruption of a presidency by impeachment, he said. Would an indictment be “more destabilizing than impeachment?”

Walter Dellinger, now a professor at Duke University and Washington lawyer, headed OLC during the Clinton administration. As acting solicitor general, he also argued—and lost—Clinton’s claim that he should be immune, while in office, from Paula Jones’s civil suit. The history and caselaw sources lead nowhere, he said: “It’s a scoreless tie.” Affording the president immunity in office, he suggested, might make it impossible even to try other defendants in a serious conspiracy case. Watergate Special Prosecutor Leon Jaworski circumvented this problem with an indictment naming President Nixon as an “unindicted co-conspirator.” But Dellinger noted that Jaworski did not concede that a sitting president could not be indicted.

“There is no expertise” that can answer the question, he said. “It’s a matter of choice.”

Pamela Karlan, a prominent Supreme Court litigator and the head of Stanford’s Supreme Court clinic, noted that the Constitution answers some questions—“Arnold Schwarzenegger can’t be president”—but doesn’t answer many others. In this area, “it is possible that there is no answer,” she said. Institutional precedent to her seemed less important to her than the constitutional policy. “What are the big values of the Constitution?” she asked. “Will the country fall apart if we do this? Is it a really bad idea?”

Verna Williams, interim dean and professor at the University of Cincinnati School of Law, drew on her background as a litigator both for the government and in public advocacy cases. Supreme Court precedent seemed most salient to her. In both United States v. Nixon and Clinton v. Jones, presidents had claimed immunity from legal process while in office; in both cases, the Supreme Court denied the claim. Reasoning from those precedents, she suggested, a lawyer should conclude that “where there’s a right, there’s a remedy … no one is above the law.”

Nancy Leong, a professor of law at the University of Denver’s Sturm College of Law, teaches criminal procedure. Unlike Shane and Dellinger, oriented to the executive branch, she drew her answer from institutions of the criminal-justice system itself. A special counsel is a prosecutor, she noted. “There’s a way in which this takes us back to prosecutorial discretion,” she said. English and American law for centuries have assumed that a prosecutor may weigh the needs of justice and of the system as a whole in deciding which cases to pursue and which to drop. Why, she asked in effect, should a special counsel not function in the same way? “Prosecutorial discretion has always had a political aspect,” she said. For example, she notes the differing priorities of the Obama and Trump Justice Departments in areas like marijuana regulation and deportation of aliens. A prosecutor might ask, “What is the system designed to accomplish here? Built into the discretion of special counsel is the likelihood that the legislature is going to undertake the function provided.” If the system relies on the legislative branch for an initial check, what should a prosecutor do “if the legislature is not providing a check?”

Saikrishna Prakash teaches constitutional law at the University of Virginia and is the author of Imperial from the Beginning: The Constitution of the Original Executive, a historical study of the executive branch. There is simply no constitutional answer to the question, he said. The text is silent; the limited immunities for Congress pointedly exclude the president. Congress could certainly by statute create immunities for the president, but it has not. “There is no reason to impose a constitutional solution,” he says. Indicting a president might be a crazy thing to do; but “the Constitution can allow crazy things to happen.”

After listening to these wise scholars, I incline toward Prakash’s view. Presidential indictment and prosecution is, in a sense, the Schrödinger’s Cat of Article II. We just don’t know, and we won’t know, whether it’s allowed until we open the box—that is, until evidence leads some prosecutor to decide that a sitting president, in the interests of justice and national survival, must face indictment while in office.

If I were that prosecutor, I certainly wouldn’t ask Giuliani’s advice. I think that if I had clear and convincing evidence that a president had violated major criminal laws, I would do what prosecutors do: Go to the grand jury and ask for a “true bill” of indictment.

If I got it, all hell would break loose. But American politics has always been hell.

And when the dust settled, we’d finally know the answer.

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The Supreme Court Appears Poised to Bless Trump’s Travel Ban

Garrett Epps, The Atlantic — Thu, 26 Apr 2018 10:29:29 -0400

“What if the military advisers tell the president that, in their judgment, the president ought to order a strike, an air strike against Syria,” Chief Justice John Roberts asked Neal Katyal from the bench on Wednesday, “does that mean he can’t because you would regard that as discrimination against a majority-Muslim country?”

Katyal, a former acting solicitor general and one of the most formidable appellate lawyers in America, was, as ever, unflappable. “I don’t think there’s any immigration issue in your hypothetical. I might be misunderstanding it, Mr. Chief Justice,” he said.

In a normal world, Roberts’s question would be bizarre. Immigration law and the war power are distinct. But in the strange twilight world of 21st-century America, it made a certain twisted sense. Nearly 17 years after Congress responded to the 9/11 attacks with an Authorization for Use of Military Force, the United States continues to march through an ill-defined conflict with an undefined enemy in pursuit of unstated aims. In today’s America, War is Peace.

Everyone in the country is weary of the struggle, perhaps especially the justices of the Supreme Court. Sixteen months and three proclamations after Donald Trump was elected on a promise of a “total and complete shutdown on Muslims entering the United States,” the arguments about his “travel ban” have been heard over and over. Is the current “proclamation” a sweeping “Muslim ban” or a restriction on immigration from a small set of majority-Muslim countries? Can the president’s bigoted campaign promises be considered in assessing the intent behind the proclamation? Do the courts have any role to play in examining decisions on matters of national security or immigration? Do persons or institutions in the U.S. have the right to challenge the exclusion of persons or groups outside? Does the third iteration of the proclamation send a message that a “reasonable observer” would regard as disparaging Islam?

Can we please, please stop now?

The two advocates put forward their cases as well as they can be made; how you assess them will depend on whether you see the case in terms of equality and religious liberty or—as Roberts’s question suggests—as a matter of danger, world conflict, and defense.

Solicitor General Noel Francisco led off on Wednesday. Donald Trump’s campaign statements don’t count: “We are very much of the view that campaign statements are made by a private citizen before he takes the oath of office and before, under the Opinions Clause of the Constitution, receives the advice of his Cabinet, and that those are constitutionally significant acts that mark the fundamental transformation from being a private citizen to the embodiment of the executive branch. So that those statements should be out of bounds.” The oath, and the Cabinet, wash away the original sin.

And anyway, the third iteration of the proclamation isn’t really Donald Trump’s at all. It was instead the work of Trump’s Cabinet officers—and in fact, not even of the political appointees, but of the agencies themselves, which had researched the process used by various countries to decide which of them provided the U.S. enough information about their nationals seeking entry into the U.S. “It is an order that is based on a multi-agency, worldwide review that applied neutral criteria all across the world.”

The heart of Francisco’s argument was what the government calls the “presumption of regularity” of government action: “There is a very strong presumption that what is being set out there [in the proclamations] is the truth.”

Justice Elena Kagan asked Francisco to imagine a “hypothetical” situation in which an anti-Semite is elected to the White House and orders the Cabinet to exclude Jews. Officials come back with a proposed ban on immigrants from Israel. Francisco replied by subtly changing the facts: “If his Cabinet were to actually come to him and say, ‘Mr. President, there is honestly a national-security risk here and you have to act,’ I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”

Justice Anthony Kennedy asked Francisco, “Suppose you have a local mayor and, as a candidate, he makes vituperative hate—hateful statements, he’s elected, and on day two, he takes acts that are consistent with those hateful statements. … You would say whatever he said in the campaign is irrelevant?”

Yes, Francisco said, “that oath marks a fundamental transformation.”

Katyal replied to the “regularity” claim by noting that the Cabinet had its marching orders before its work began: “The president before this review process even began tweeted and said that he wanted a tougher ban, a non-politically-correct ban and the like.” Trump as president retweeted two virulently anti-Muslim videos, and his press secretary responded to questions about them by saying, “The president has spoken about exactly this in the proclamation.” Roberts asked whether Katyal’s answer would be different if Trump had repudiated his previous anti-Muslim statements. “Absolutely,” he answered. “And, Mr. Chief Justice, that’s exactly what I told the Ninth Circuit in May. The president didn’t do that.”

That answer hangs over the case. If all that is needed is presidential repudiation, why wouldn’t Trump do that? (Francisco responded that Trump has done that, without saying so: “The President has made crystal clear … that he had no intention of imposing the Muslim ban.”)

Katyal’s argument had three parts. First, he said, the Immigration and Nationality Act doesn’t permit the president to make permanent, or indefinite, changes to the highly complex statutory scheme Congress has passed. Second, the INA explicitly forbids discrimination by nationality, at least in issuing immigrant (as opposed to temporary) visas.

The third argument, though, is the one that absorbs the country: Does this order violate the Establishment Clause? Does it tag Islam and Muslims generally as dangerous, undesirable, un-American? In legal terms, this is measured by something called the “reasonable observer” test. A “reasonable observer” who saw a huge cross atop the county courthouse would conclude that Christians in that county held governmental power. What would a reasonable observer conclude about the “travel ban”?

Justice Samuel Alito pointed out that of the top 10 Muslim-population countries in the world, the proclamation covers only one. Francisco said that, “This is not a so-called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.” Katyal answered that the countries included are between 90 and 99 percent Muslim. “[T]he fact that the order only encompasses some Muslim countries I don’t think means it’s not religious discrimination. For example, if I’m an employer and I have 10 African Americans working for me and I only fire two of them, and say, well, I’ve left the other eight in, I don’t think anyone can say that’s not discrimination.”

At the end of the hour, the “regularity” argument, coupled with the “neutral” language of the third proclamation and the national-security implications, seemed likely to carry the day. As Roberts’s question suggested, he was openly skeptical of the challenge; Kennedy, too, seemed to think the Court had no place in the president’s national-security calculations. He asked Katyal, “Your argument is that courts have the duty to review whether or not there is such a national contingency; that’s for the courts to do, not the president?”

The national-security argument is hard; but as for the Establishment Clause question, were the justices asking the right questions? So what if this version of the proclamation uses neutral language? So what if it is ineffective as a “Muslim ban”?

Should this save the proclamation if “unreasonable observers”—let’s say, purely hypothetically, the kinds of Americans who might decide to vote for a presidential candidate who said “Islam hates us” and promised a “total and complete shutdown” of Muslim immigration—would think that the proclamation really is an effective, intentional attack on Islam? Why should “ineffectiveness” matter if the president who issued it kept winking at the camera and slyly hinting he has done what he said he would do?

If the proclamation’s anti-Muslim message is visible only to the ignorant and bigoted, does that really somehow make it okay?

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How the Supreme Court is Expanding the Immigrant Detention System

Garrett Epps, The Atlantic — Fri, 09 Mar 2018 09:44:46 -0500

A quarter-century ago, in 1994, the Immigration and Naturalization Service, on any given day, was holding somewhere around 5,500 immigrants in “immigration detention.”

For fiscal year 2017, Immigration and Customs Enforcement budget documents projected an average daily population in detention of roughly 31,000. That increase—nearly six-fold in 25 years—made the Enforcement and Removal Operations division of ICE roughly the 13th largest prison system in the country. On its busiest days in FY 2017, ICE housed a population well above that.

During FY 2018, ICE reports that its average daily population has been 40,726. Before the year began, ICE budget documents had projected a detention population of 51,379. That staggering expansion—65 percent in a single year—would have vaulted ERO to a spot somewhere around No. 7. Its population would rank in size behind only the federal prison system and those of California, Florida, Georgia, New York, and Texas.

In 1973, the great Russian writer Alexandr Solzhenitsyn coined the term “Gulag Archipelago” to denote the Soviet system of political prisons and labor camps. In the last 25 years, the United States has, without fanfare, brought into being a kind of ERO Archipelago—secretive, loosely supervised, and, in human and constitutional rights terms, deeply problematic. And the “system” will, if the current administration carries forward its enforcement plans, grow significantly larger year by year.

As of 2016, only about 10 percent of detainees were held in federal facilities at all; the remainder were housed in state, county, or city jails (25 percent) or private for-profit prisons (65 percent). Each of the local or private facilities is governed by an agreement with ICE governing inmate conditions, and the agreements aren’t uniform. Some require better conditions than others. Even ICE’s defenders do not seriously contest that ERO detention facilities are rife with poor physical conditions, inadequate medical care, and physical and sexual abuse of the inmates.

The inmates in the archipelago’s exploding prison population are, almost without exception, not charged with or awaiting trial for any crime at all. Some have committed crimes and completed their sentences; some have entered the U.S. without permission; others have done nothing wrong except request admission to the United States under our laws when Customs and Border Protection Officers believe they are not entitled to do so.

These facts are the backdrop to Jennings v. Rodriguez, an important immigration case decided by the Supreme Court last week. There were two issues in Jennings.The first was whether the Immigration and Nationality Act, which governs ERO’s detention of aliens, required that those being held receive a regular chance at release on bail. The second was whether the Act, if it did not allow a chance for bail, violates the Fifth Amendment’s guarantee of due process.

By a 5 to 3 majority, the Court gave a troubling answer to the two questions. First, the majority said the statute doesn’t permit regular bail hearings; second, it refused to even consider the constitutional issue. Instead, the Court sent the case back to the Ninth Circuit for a first crack at that—but hinted strongly that the appeals court should find a reason to dismiss the case rather than decide it.

No matter how you analyze the issues, Jennings was a hard case under both the statute and the Constitution. And, as Kevin Johnson, the immigration maven and dean University of California at Davis law school, said in SCOTUSblog, last week’s decision doesn’t end the case. But the Court’s five-justice majority sent some fairly grim signals about their view of the ERO archipelago and the rule of law.

Justices Samuel Alito, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch, read the statute as forbidding bail hearings for the immigration inmates, and thus authorizing ERO to detain them for weeks, months, or even years. Two of the five, Thomas and Gorsuch, wrote separately to suggest that the inmates should not be allowed to challenge their detention in court until after their cases are complete and they are facing deportation. The five-justice majority opinion, without quite saying so, also suggested that the constitutional issue is really not of much importance at all. Justice Stephen Breyer wrote a dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused herself, because she had authorized a pleading in the case when she was U.S. Solicitor General.)

The majority’s statutory reading is arguable; its dismissive tone toward the constitutional issue is clearly wrong. It’s an important question, and one that is likely to become more so: Can the government, with or without congressional authorization, hold immigrants indefinitely without bail? Does it make a difference that many of the immigrants being detained have strong claims to be allowed to remain in the country? Or that they are not being held to answer for crimes?

As scholars like Hiroshi Motomura of the University of California at Los Angeles have documented, for most of American history, immigration law and policy was largely focused on helping new immigrant populations assimilate to American life and gain citizenship, not on arresting, prosecuting, or expelling them. In the past half-century, it has, without much fanfare, steadily transformed itself into something far closer to an internal espionage and control apparatus, aimed at policing a population of “illegal immigrants” who are, by lifelong status, unequal to others in the U.S. Long-term detention was once extraordinary; increasingly, it is becoming routine.

As the size of the ERO archipelago grows, so should constitutional concerns.

At issue in Jennings are three categories of aliens, each category named for the section of the INA that authorizes their detention: Those who arrive in the U.S. and seek entry without proper documents and who can seek asylum if there is a “credible fear of persecution” upon their return to the sending country (§ 1225(b)(1)), those at entry points who have papers but can’t prove their entitlement to entry without a doubt (§ 1225(b)(2)), and those who may be deportable because they have committed a crime and have completed their sentences, with the exception in last category being those who may be needed as a witnesses to a crime (§ 1226(c)).

As Justice Stephen Breyer points out in his dissent in Jennings, “ultimately many members of these groups win their claims” and are allowed to remain. But the waiting time can be many months or years. For example, consider the respondent in this case, Alejandro Jennings. He was brought to the U.S. as a child and has had legal status for years. However, he was convicted for “joyriding” and possession of a controlled substance. He spent three years behind bars while waiting for a determination—and, his lawyers claim, might have been held for a total of seven years, had ICE not had a change of heart and released him after he brought a class-action lawsuit against detention without bail. Immigration scholars Stephen Legomsky of Washington University in St. Louis Law School and Stephen Yale-Loehr of Cornell Law School, in an amicus brief, cite figures showing that the longest-held member of the 1226(c) subclass, those who have committed a crime, was held for longer than four years, and the average member will be held more than a year.

So the statutory issue in Jennings was whether these statutes, which do not mention bail, should be read as forbidding bail proceedings—or read against the background of the Constitution, which plainly regards bail as a fundamental right? For criminal proceedings, bail hearings are presumed; should immigration detention—which is civil—be an exception? Six of the circuits have said that bail hearings must be held if detention is “prolonged.” The Ninth Circuit, where Jennings originated, ordered that ICE provide bail hearings for its detainees every six months. The detainees would be entitled to release unless ICE could show by “clear and convincing evidence” that they were dangerous to the community or likely to flee.

The Ninth Circuit said its reading was necessary under the “avoidance doctrine,”which tells courts to read ambiguous statutes in a way that prevents constitutional conflicts. In most contexts, detention without a chance at bail would be a flat violation of due process; thus, the court reasoned, the detention statutes would be unconstitutional if read to forbid bail hearings.

The case is hard for two reasons. First, even if detention without bail would be unthinkable in most proceedings, the courts may eventually say that immigration detention of non-citizens is different. (After all, for one thing, detainees can always end their detention by accepting deportation, harsh as that choice may be.) Second, the Ninth Circuit’s detailed provisions on timing and burden of proof are a fairly aggressive “reading” of a silent statute; the government argued, with some justice, that the court of appeals was actually writing new provisions into the law.

But the statutory question really is difficult; Alito’s opinion, however, found it easy. The sections do not mention bail at all, but do provide for some limited release (in the case of § 1225(b) only for “urgent humanitarian concerns,” and for § 1225(c) detainees only when they are needed as protected witnesses). Alito read the statutory language as forbidding any other release. “The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible,” he wrote. Thus, the majority held “that, subject only to express exceptions,” the statutory provisions “authorize detention until the end of applicable proceedings.” In addition, “we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.”

(Despite finding the provisions “clear,” Alito seemed surprisingly defensive about his interpretation, lashing the dissent in six long pages adorned with such passive-aggressive gems as “the dissent evidently has a strong stomach when it comes to inflicting linguistic trauma.”)

The constitutional questions, Alito wrote, should be considered on remand to the Ninth Circuit. Considered there, that is, if at all—the final section of the majority opinion contained a long section suggesting that the detainees are not entitled to bring a class action suit at all. (In a second broad hint, Justice Thomas, joined by Justice Gorsuch, wrote a separate opinion reading the INA as forbidding review of any issue unless an alien is challenging “a final order” of deportation. Since a large number of the aliens in this case will win their cases, they would never be able to challenge their detention, even after the fact.)

In dissent, Breyer, joined by Ginsburg and Sotomayor, contended that the constitutional issues in this area are weighty. Though popular discourse increasingly denies this obvious fact, the immigrants immured in the ERO archipelago have constitutional rights. The Fifth Amendment says that “[n]o person shall … be deprived of life, liberty, or property, without due process of law”—and from the founding to the present, “person” has included citizen and alien alike. Some of the immigrants in the class, having been halted at the border, are not, as a matter of immigration law, “in” the United States. But that’s a legal fiction for immigration purposes, Breyer noted:

No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

Responding to the majority’s statutory reading, Breyer wrote, “I would find it alarming to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.”

As I said above, this is a difficult case; but the truculence of the majority opinion truly is alarming. The ERO archipelago is metastasizing, with almost no public attention or debate. From Andersonville in the Confederacy (its commandant was executed as a war criminal) to Koje-Do during the Korean War, well-intentioned officials have often found themselves overwhelmed by the problems of sudden, unplanned mass incarceration—with disastrous results.

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Supreme Court Justices Face a Historic Choice Regarding Presidential Power

Garrett Epps, The Atlantic — Mon, 29 Jan 2018 10:20:20 -0500

The case against President Trump’s travel ban, like a lingering illness, seems to have been with us forever, but is just celebrating its first birthday. Now that the Supreme Court has accepted one of the two challenges to the order, the end is in sight.

The Court on January 19 announced it would consider Trump v. Hawaii, the challenge heard in the District of Hawaii and then the Ninth Circuit. But its order also included a request for the parties to brief the Court on a legal issue not considered in those cases: Whether the latest order, dated September 24, violates the First Amendment’s prohibition on “an establishment of religion.”

What does this briefing order mean? Probably only that the Court wants to hear this stinker of a case once and only once. The establishment issue is not formally before the Court, but it’s out there lurking in a second challenge to the ban, still pending in the Fourth Circuit. In an earlier case challenging Travel Ban 2.0, that appeals court had held in broad terms that the earlier ban “likely” violated the Establishment Clause; it may very well hold the same this time.

In an interview, Professor Ira C. Lupu of George Washington University Law School attributed the order to a desire “to resolve all the challenges” at one time. The establishment question, he pointed, out, has “certainly been briefed on both sides.” Better to decide it now.

What if the Court wanted to decide this case on establishment grounds? Many people—me included—think the whole travel-ban episode is a gross violation of the rule against establishing religion. But even if justices want to go there, there are daunting obstacles to an establishment decision; indeed, the path reminds me of the 1981 video arcade game Frogger, in which a player must guide a frog across a busy highway, dodging speeding cars and trucks, perennially in danger of being squashed like a pancake.

Here are the trucks hurtling toward our Establishment frog.

1. Start with “standing,” which is the rule that litigants in federal court need to have a real dog in any courtroom fight. That’s called “injury in fact.” In most cases it’s easy to establish—the government has jailed, fined, or discriminated against me as an individual. In some establishment cases it’s trickier, because the government could “establish religion” and hurt everybody equally. Imagine a proclamation by the president that “Christianity is the official religion of the United States.” In establishment terms, it’s as bad as it can be—but could I, or anyone, show that it hurt me in particular? The Court over the years has bent “standing” rules to allow some lawsuits—if the government is appropriating tax money to help or harm religion, or forcing particular citizens to confront official endorsement of a particular faith. But the Court has been cutting back, not expanding, religious standing in the past 20 years.

Assume that the ban is directed against Muslims. Who can claim “injury in fact”? Not Muslims outside the country; in general, non-Americans in other countries don’t have any access to constitutional claim. The plaintiffs in the current cases have alleged specific injuries; the individual Muslim plaintiffs complain, for example, that the ban is keeping close family members from visiting or emigrating.

That’s a perfectly logical basis for “standing,” and one the Court has recognized in an earlier case involving a controversial foreign speaker. Citizens inside the U.S., it said, have a First Amendment interest in hearing from foreigners—but in that case, the Court, having found standing, then rejected the challenge to the exclusion. The Court sometimes seems to use standing as a dodge rather than a doctrine: Like the dealer in a game of three-card monte, it is capable of turning up a deuce when you could swear it had turned over a queen.

2. Next, consider the problem of “illicit motive.” The first travel ban’s text used some religious language; refugees from the majority-Muslim countries would be admitted if they were “religious minorities”—that is, most probably, Christians. Ban 3.0 avoids religious terms and simply targets certain countries; two of them—North Korea and Venezuela—are not majority Muslim.

But most people with eyes and ears know what’s going on. From the initial campaign proposal of a “total and complete shutdown of Muslims entering the U.S.” to recent winks and nudges on his presidential Twitter feed, Trump has insisted that 3.0 is the same as 1.0 and that even stronger measures are on the way. That evidence is the classic trout in the milk; but will the Court even look at it?

In equal-protection cases, the Court has long said, these kinds of statements can be evidence of an intent to discriminate. But the Court has been slow to bring the “motive” into establishment cases. Establishment-clause cases ask what a law’s “purpose” was, which almost always simply involves reading the law itself. In one leading “free exercise” case, the Court examined the legislative debates surrounding an ordinance banning “ritual slaughter” and concluded that “the object of the ordinances” was “to target animal sacrifice by Santeria worshippers.” It did the same in a case involving a tax law explicitly aimed at the Rev. Sun Myung Moon’s Unification Church. But in both cases, those statements were made in official proceedings; the Court made no use of unofficial statements by political or religious leaders.

Dissenters in the lower courts have been scathing about those courts’ use of campaign statements and tweets to prove Trump’s motive. In the Ninth Circuit, then-Judge Alex Kozinski protested that “[e]ven if a politician’s past statements were utterly clear and consistent, using them to yield a specific constitutional violation would suggest an absurd result—namely, that the policies of an elected official can be forever held hostage by the unguarded declarations of a candidate.” Judge Paul Niemeyer of the Fourth Circuit added, “the new rule would by itself chill political speech directed at voters seeking to make their election decision.”

Previous immigration cases, in particular, suggest that courts should simply note the words of a government order rather than considering its context, purpose, or intent. Though anyone with a Twitter feed has seen the ugly pattern in Trump’s incitement of hatred, the Court may be unwilling to open that door.

3. Finally, the specific immigration context. From the late 19th century until today, the Court has seldom even hinted at constitutional limits on the federal power—shared by Congress and the president—to exclude or expel aliens for any reason. If this “plenary power” doctrine is applied rigorously, it would mean that a court could not intervene even if Trump proclaimed “I find that only white Christians should be allowed into the U.S.” The Court hasn’t reaffirmed “plenary power” recently; but is it ready to jettison it in one fell swoop? It’s hard to imagine the Court reaching out to substitute its own national-security judgment for the president’s—any president’s—unless it had no other way to decide a case.

In fact, future presidents, not this one, may weigh on the minds of the justices in general. “The fundamental question [of this case] is whether this president gets the same deference that every other president gets,” Douglas Laycock, a law professor and religious-freedom expert at the University of Virginia, told me.

Lower courts have, to say the least, treated Trump and his motives with some skepticism. That may be a problem. Professor Michael McConnell of Stanford Law School, a former judge of the Tenth Circuit, told me that he has “a suspicion that the Supreme Court thinks the lower courts are out of control.”

Whether that’s true or not, the lower courts plainly think the advent of Trump and his bans is an almost unprecedented emergency. Why wouldn’t they? They’ve had to deal with the surprise issuance of the first ban, its sloppy, lawless language, the chaos at airports because no one prepared the bureaucracy for the ban, the emergency hearings demanded by government lawyers who then showed up complaining about the courts’ haste, the extravagant claims for deference made by those same ill-prepared lawyers, the president’s open contempt for courts and “so-called” judges, his attempts to intimidate the Ninth Circuit, and the anonymous death threats against District Judge Derrick Watson.

Does the Supreme Court feel the same way? For that matter, should it? Within the whispery confines of the palace at First Street N.E., the captains and the shouting are often heard, if at all, in muted form. And perhaps that kind of detachment is what we want from a court.

What would an ideal justice do? Should he or she take note of the urgent circumstances of 2018, or reflect on the nature of the executive power as laid out by Montesquieu and Alexander Hamilton, and wielded by Lincoln, Franklin Roosevelt, and Barack Obama?

Either approach has its perils. Lean one way, and the Court enters bare-knuckle politics, and risks hobbling the government decades hence; lean the other way, and history may write of the Roberts Court that it was as willfully blind as the Court of Harlan Fiske Stone, which deliberately closed its eyes against the lawlessness of the Japanese Internment.

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Can Government Officials Have You Arrested for Speaking to Them?

Garrett Epps, The Atlantic — Tue, 16 Jan 2018 08:34:59 -0500

If a citizen speaks at a public meeting and says something a politician doesn’t like, can the citizen be arrested, cuffed, and carted off to the hoosegow?

Suppose that, during this fraught encounter, the citizen violates some law—even by accident, even one no one has ever heard of, even one dug up after the fact—does that make her arrest constitutional?

Deyshia Hargrave, meet Fane Lozman. You need to follow his case.

Hargrave is a language arts teacher in Kaplan, Louisana. She was arrested Monday after she questioned school-district policy during public comment at a school board meeting.

She asked why the superintendent of schools was receiving a five-figure raise when local teachers had not had a permanent pay increase in a decade. As she was speaking, the school-board president slammed his gavel, and a police officer told her to leave. She left, but once she went into the hall, the officer took her to the ground, handcuffed her, and arrested her for “remaining after having been forbidden” and “resisting an officer.”

Fane Lozman, whose case will be argued in front of the Supreme Court on February 27, faced the same fate at a meeting of the Riviera Beach, Florida, city council in November 2006. Lozman, remarkably enough, has made his way to the high court more or less without assistance twice in the past four years, arguing two different aspects of his acrimonious dispute with the Riviera Beach city government. The first case, which Lozman won, asked whether his motorless plywood “floating home” was actually a “vessel” subject to federal admiralty law. (Answer, via Justice Stephen Breyer: “Um, no.”) The second case is about police tactics at public meetings; its result could make a profound difference to citizens like Hargrave who want to talk back to local officials without a trip to jail.

In 2006, Lozman was living in his anchored plywood structure, which was moored at a marina in Riviera Beach. City officials planned to use eminent domain to condemn the marina site and redevelop it; Lozman sued to block the plan.

In retaliation, city officials first tried to evict him from the marina. Lozman, representing himself, argued to the jury that this was retaliation, and the jurors threw out the city’s case. The city then brought a bizarre proceeding “in admiralty” against the houseboat itself, claiming it was a “vessel” and thus subject to federal maritime law (hint: no jury). They won an order from a federal court allowing them to destroy the home. Lozman, again acting as his own lawyer, appealed the order—and in 2013 the Supreme Court reversed.

But the struggle was far from over. His original lawsuit against the city had alleged a violation of Florida’s open-meetings law. State authorities sent law enforcement agents to interview council members about those charges. The elected officials were so infuriated that, as one said on the record in a private 2006 meeting, they decided to “intimidate” Lozman and other critics “so that they can feel the same kind of unwarranted heat that we are feeling.” A few months later, Lozman went to the microphone during open comment time at a City Council meeting; but when he mentioned “public corruption” in Palm Beach County (where the city is located), the presiding council member ordered a police officer to arrest him.

He was charged with “disorderly conduct” and “resisting arrest without violence,” but the local prosecutor dropped the charges, saying in essence that no reasonable person would believe them. Lozman then brought a federal lawsuit against the city for “First Amendment retaliation.” A federal judge agreed that Lozman had “compelling” evidence that he’d been arrested as punishment for his protected speech. But the judge then threw out the case, reasoning that he actually could have been charged with the obscure state offense of “willfully interrupt[ing] or disturb[ing] any school or any assembly of people met for the worship of God or for any lawful purpose.”

What this meant, the court decided, was that the officer who arrested Lozman would have had “probable cause” (a reasonable basis to believe a crime had been committed) to arrest him if he had known about “assembly of people” statute and wanted to enforce it. The fact that the officer didn’t know about it was irrelevant—and so was the city’s unconstitutional motive. As long as an officer could have arrested Lozman for something, in other words, the retaliatory motive didn’t matter. The Eleventh Circuit affirmed: The existence of probable cause for any offense is an “absolute bar” to a suit for retaliatory arrest, it said.

If you are not a lawyer, ask yourself: Can this possibly be right? Did you by any chance violate, or do anything that might make someone think you had violated any statute, ordinance, or regulation—littering, speeding, failure to signal, improper parking, excessive use of car horn, leash-law or pet waste violation, soliciting beverage-container deposits on beverages bought out of stage, unlicensed cosmetology, unlicensed practice of geology, discharge into a storm drain, spitting on the sidewalk, barratry, champerty, maintenance, affray, seduction, or being a common scold—at any point today? Under the Eleventh Circuit’s rule (which some other circuits also use), police or officials can arrest and silence a Deyshia Hargrave when a politician wants to silence her—if, after the fact, some earnest lawyer can find a such a law, however obscure, that police at the time might have thought she was violating, even though they weren’t thinking about that.

That issue is vital to the Deyshia Hargraves of this country, as well as to dangerous offenders like Dan Heyman, a reporter arrested for asking a question of then-Health and Human Services Secretary Tom Price inside the West Virginia capitol. Charges were dropped—but, if they pay no price for these tactics, local jacks-in-office will be able to silence and intimidate critics more or less at will, whether or not they are prosecuted later.

It’s established law that the First Amendment protects citizens from “adverse actions” by government, if the “adverse actions” are “retaliation” for their exercise of First Amendment rights. So a public employee who speaks to the press about a general issue of public concern can’t be fired as punishment; thus, too, officials can’t blackball government contractors for their political or partisan activities. To prove a retaliation claim, a plaintiff has to show that she engaged in protected speech and that the government retaliated because of the speech. There’s a complication, though: The government can then try to show that “the same decision would have been reached had the incident not occurred”; if it makes that showing, the plaintiff will lose.

The Supreme Court has considered a number of retaliation cases, but it has not yet explained how the “same decision” rule applies in this particular situation—when a police officer arrests someone who is speaking against government. The closest it has come is a 2006 case called Hartman v. Moore, which has actually deepened the confusion surrounding the issue.

William Moore, a tech executive, wanted to sell optical character reading equipment to the Postal Service. USPS officials favored a different system; Moore persuaded members of Congress to weigh in on his side, and eventually the USPS was barred from its favored choice. Soon after, USPS inspectors began investigating Moore, and eventually a federal prosecutor brought fraud charges against him—charges so flimsy that a District Court, after hearing six weeks of evidence, found a “complete lack of direct evidence” and tossed the charges.

Moore then sued the prosecutor and the inspectors for “retaliatory prosecution.” The Supreme Court, however, decided that such a claim—a claim that federal investigators and prosecutors had him indicted and prosecuted because of his First Amendment speech—can only succeed when the plaintiff can show complete lack of probable cause for the prosecution.

The reason is complex. To begin with, the court has held that prosecutors themselves can never be sued for the decision to prosecute a given case, no matter how mean or bone-headed. When it comes to prosecutors, courts apply a “a presumption of regularity”—that is, that “a prosecutor has legitimate grounds for the action he takes.” Because of this “absolute immunity,” a plaintiff would have to sue others in the system—in this case, the USPS inspectors—and charge that they caused the prosecutor to proceed without good reason. But if there was “probable cause,” then there was at least one good reason.

The two pieces fit together this way. First, there was probable cause; second, we assume the prosecutor was applying the law in good faith. Thus, the probable cause, not retaliation, must have been the reason for the prosecution.

But there’s an important difference between “retaliatory prosecution”—like Hartman, where prosecutors went through an indictment and a trial—and “retaliatory arrest”—where one or two law-enforcement officers arrest a person, silence them for the night, and, often as not, just let them go without charge. A prosecutor need not have been involved at all.

Nonetheless, a number of courts of appeals have concluded that Hartman bars any lawsuits for retaliatory arrest as well as prosecution—if there’s any evidence in the record of what could have been probable cause. That’s the issue the court will decide in Lozman v. Riviera Beach, Florida. It’s one that could either rein in, or embolden, the tiny-handed tyrants who rule county buildings and city halls around the country. (If you want an exhibit of the mindset at issue, consider the unrepentant Anthony Fontana, the school-board president who presided while Deyshia Hargrave was arrested. “Everybody wants to side on the poor little woman who got thrown out,” he told Fox News. “Well, she made a choice. She could have walked out and nothing would have happened.”)

Remember, plaintiffs must show that retaliation was the motive for the arrest. (In Lozman, that wasn’t hard: Meeting transcripts showed that the council wanted to “intimidate” Lozman and let him “feel the unwarranted heat.”) Unlike prosecutors, police officers don’t have immunity, and neither do elected officials who order them to silence citizens. There’s no “presumption” that an arrest is based on “legitimate grounds.”

Much of federal civil-rights law is set up to deter this kind of official bully-boy tactics. And a glimpse at any given front page in 2018 should convince even a cloistered Supreme Court justice that police attacks on free speech are still a problem.

I hope Deyshia Hargove makes her way to Washington on February 27 and sits in the Supreme Court chamber while Lozman’s lawyers argue against the kind of tactics that were used to silence her.

Of course, if she spoke up there, she’d be cuffed and arrested again; but her presence would make a statement nonetheless.

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How Trump's Transgender Ban Compromises His Military Authority

Garrett Epps, The Atlantic — Fri, 11 Aug 2017 16:51:26 -0400

“Our opponents, the media, and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned,” presidential adviser Stephen Miller told the nation on February 13.

Rarely has a prophecy been quite this wrong. As president, Donald Trump has displayed a perverse genius: He is able to convince even reluctant judges to question his judgment and block his authority. Even in legal arenas courts are traditionally reluctant to enter, Trump’s headstrong approach has brought his initiatives to a dead halt.

The latest victim of his itchy Twitter fingers, I suspect, will be the commander-in-chief power. This is an almost sacrosanct area of authority that Trump placed in harm’s way with a July 26 Twitter thread, which proclaimed that “the United States government will not accept or allow … transgender individuals to serve in any capacity in the U.S. military.”

The tweets have not been translated into official policy yet. But there’s little question that after an order from the president, the armed service bureaucracy must, however slowly and reluctantly, bend to his will. Barring judicial interference, trans recruits will be excluded from the services; those now in uniform may face discrimination or discharge.

On Wednesday, five active members of the armed forces brought a challenge to Trump’s announced ban. Each of them has already joined the military, is serving honorably, and has come out to their commanders as trans, in reliance on the explicit Department of Defense policy permitting them to serve openly. Even before the ban becomes official, each is suffering its ill effects, in terms of career uncertainty. That should be enough to grant them standing.

They are represented by lawyers for two advocacy groups—LGBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights—and a dream team of heavyweight attorneys from two major law firms, Foley Hoag and WilmerHale.

There’s little law directly on this point, because we’ve never had a president who issues policies in 140 characters—and not since Andrew Johnson have we had one so willing to use the office so impulsively as a club against disfavored people and groups. But I think they have a pretty good chance of blocking the ban. Defense Department lawyer Michel Paradis, writing as a private citizen in Lawfare, agrees.

Trump must have felt quite confident in issuing his ukase. Under the Constitution, the president is “commander in chief of the army and navy of the United States.” That power is more sweeping than almost any other in the document. The commander-in-chief role has, over the years, inspired near-religious deference not only from military officers but also from members of Congress and federal judges. For example, the Supreme Court in 1996 approved a military-justice statute that gave the president a remarkable role in capital cases. When it came to defendants in the military, Congress authorized the president by regulation to decide what factors should determine whether they should be executed. That kind of criminal law is usually made by legislatures; this kind of delegation would never be tolerated in civilian courts. Justice John Paul Stevens wrote that in matters of military justice “it would be contrary to the respect owed the president as commander in chief to hold that he may not be given wide discretion and authority”—even in the area of life and death.

In part because of this tradition of deference, presidents regard the military as their property. “Son, they’re all my helicopters,” Lyndon Johnson once told an airman; Trump said he had announced the transgender ban “after consultation with my generals and military experts.” But the Constitution is very clear: Congress, not the president, has the exclusive power “to declare war,” “to raise and support armies,” “to provide and maintain a navy,” and “to make rules for the government and regulation of the land and naval forces.”

They’re all Congress’ helicopters. The president just gets to borrow them.

Over six decades, courts have held that congressional “government and regulation” of the military must follow constitutional standards. Judges aren’t about to second-guess genuine command decisions, such as deployment orders. Courts can and sometimes do, however, protect the individual rights of men and women in the ranks. Those in the military have fewer rights than civilians, but they have rights nonetheless.

At first glance, it would seem the military can discriminate more or less at will. Before its repeal in 2010, the “don’t ask, don’t tell” policy, barring lesbian and gay personnel from serving openly, was almost uniformly affirmed by the courts. Similarly, in 1981, the Supreme Court upheld a national policy requiring men to register for the draft while barring women. That case, Rostker v. Goldberg, relied on an act of Congress, as “don’t ask, don’t tell” cases did. “Perhaps in no other area has the Court accorded Congress greater deference,” Justice William Rehnquist wrote.

I added the emphasis on “Congress” in the quote above, because that’s where Trump’s new ban is vulnerable. It never had anything to do with Congress. Nobody seems to have been involved but Donald J. Trump.

The challengers’ complaint draws a careful contrast: Trump’s overnight, unexpected policy change is radically different from the two-year process that ended in 2016 with an order opening the military to transgender personnel. In the two years before that, there was a direction by the secretary of defense to each branch to reassess the need for a ban; a comprehensive overall analysis by “the leadership of the armed services, the Joint Chiefs of Staff, the service secretaries, and personnel, training, readiness, and medical specialists from across the Department of Defense”; a study by the RAND Corporation on military effectiveness and health costs; a final secretarial directive; the issuance of a 71-page handbook on transgender service; and another set of guidance memos on how each service should integrate trans personnel into the ranks.

Trump, the challengers suggest, reversed this carefully made decision on a whim. “Upon information and belief,” the complaint says, “the president did not consult either the Joint Chiefs of Staff or the Department of Defense before making his announcement.” Indeed, as clearly as military etiquette allowed, Secretary of Defense James Mattis, a coalition of former military officers, and the commandant of the Coast Guard made clear that they did not subscribe to—and perhaps had not even known about—the change in policy. “Members of Congress belonging to both political parties,” the challengers’ complaint notes, have also registered their opposition.

In addition, the official studies cited in the complaint had already uniformly found that Trump’s reasons for banning trans troops—potential distraction from “decisive and overwhelming victory” and “tremendous medical costs”—are not supported by any evidence at all.

The suit doesn’t claim that a commander in chief is required to go through any specific process before issuing an order. But it implicitly suggests that Trump’s action is based not on military principles at all, but on dislike for, and desire to publicly humiliate, transgender people. And every second-year law student learns that that reason—“I don’t like your kind”—is not a “rational basis” for anything. In 1973, the Supreme Court struck down a food-stamp regulation it concluded was aimed at denying benefits to “hippie communes.” In that case, U.S. Department of Agriculture v. Moreno, Justice William Brennan wrote that “a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

Had Trump been serious about a transgender ban, he could have begun a process to reverse the policy of allowing trans people to serve. That might not have produced good evidence to support the turnaround—but it would have shown at least some concern for executive action as an exercise of reason rather than spleen.

It would also have shown some concern for the power and stature of the office he holds. Instead, Trump has yet again demeaned and damaged that office.

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Trump's Travel Ban Is Headed for a Supreme Court Showdown

Garrett Epps, The Atlantic — Tue, 30 May 2017 09:41:32 -0400

President Donald Trump’s “travel ban”—the two successive executive orders barring entry of persons from selected Muslim-majority countries—is headed for The Show.

For those scoring at home, the first travel ban won one—in a district court in Massachusetts—and lost three, in district courts in Virginia and Seattle, and then in the Ninth Circuit before being withdrawn. The revised ban so far has gone 0-3. District courts in Maryland and Hawaii both enjoined it, and Thursday the Court of Appeals for the Fourth Circuit affirmed the Maryland court’s injunction.

Because the Fourth Circuit’s decision was “en banc”—meaning decided by a full-court panel of 13 judges rather than the normal three-judge panel—there’s nowhere to go but the Supreme Court, which is virtually certain to grant review. In its current form, it bans entry in the U.S. by nationals of six majority-Muslim countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for at least 90 days until the executive can determine whether those countries can provide enough information to U.S. authorities about individuals to satisfy a new system that Trump called “extreme vetting.”

The straightforward case against the travel ban goes like this: Candidate Trump to promised “a total and complete shutdown of Muslims entering the United States”; as president he said he was keeping that promise; his first order used explicitly religious language; the new one uses neutral language—but Trump has winked at the camera to indicate that it was still the same. By discriminating against Muslims, the orders violated the First Amendment’s ban on “an establishment of religion.” Fourth Circuit Chief Judge Robert Gregory’s majority opinion relies on that argument, as did earlier opinions by District Judges Leonie Brinkema, James Robart, Derrick Watson, and Theodore Chuang, and by a three-judge Ninth Circuit panel.

However, two Fourth Circuit judges—Barbara Keenan and Jim Wynn—wrote separately in an apparent effort to offer the Supreme Court another basis, if it wants one, to reject the ban.

These judges apparently realize that the challenge faces a heavy lift in front of the Supreme Court. In a case like this one, the court’s decision will shape executive power long after they have left the bench. (Justice Robert Jackson, for example, died in 1954; but his separate opinion in the 1952 Steel Seizure case, Youngstown Sheet & Tube v. Sawyer, is still the basic template for judging president’s domestic authority.) Beyond that, in the executive-power context, the words “national security” and “national defense” often exercise an almost hypnotic power over the judicial mind.

The court’s younger justices come to the bench shaped by years of serving the executive branch. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito served both Ronald Reagan and George H.W. Bush (Roberts was both a Department of Justice official and part of the White House Counsel’s office, Thomas was head of the Equal Employment Opportunity Commission, Alito was a Justice official and federal prosecutor); Elena Kagan worked for Bill Clinton’s White House and was Barack Obama’s solicitor general; Neil Gorsuch worked for George W. Bush’s Justice Department.

Executive-branch lawyers instinctively mistrust any doctrine that might, in the future, block the president from using power that is even arguably his. In this regard, they may be worried by the central argument against the travel bans—that Trump’s statements before and after taking office are relevant, and show an unconstitutional intent to discriminate.

The Fourth Circuit’s majority opinion recited Trump’s anti-Muslim rhetoric and concluded that a reviewing court can and should use these as indications of the executive’s motive in promulgating the ban. That motive, it concluded, was “religious intolerance, animus, and discrimination.” Because government policy that disfavors a specific religion violates the Establishment Clause, the ban cannot survive, the majority concluded.

Trump’s statements, both as a candidate and as president, have a “substantial, specific connection” to the discriminatory motive, it argued. (Judge Stephanie Thacker wrote a separate opinion arguing that Trump’s campaign statements should not be considered, but that his post-inauguration statements and actions are enough to show discriminatory intent.) The government argued that use of campaign statements might chill political debate; the majority replied, “To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.”

As Judge Paul Niemeyer outlined in his dissent, there are a lot of reasons—some precedential and some practical—why the high court might not want to make Trump’s statements relevant to the legal issue. At best, it’s an open question. Judges Keenan and Wynn, in separate concurrences, outlined a different set of arguments against the travel ban. Regardless of intention, they said, the order is not authorized by the Immigration and Nationality Act. Statutory arguments might allow the justices to reject the travel ban while not making any broad statements about constitutional authority.

Both opinions center on two provisions of the INA that seem to conflict. One the one hand, § 1152(a)(1)(A) provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” On the other, § 1182(f) states that “[w]henever the President finds that the entry of any aliens or of any class of aliens ... would be detrimental to the interests of the United States, he may ... suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants[.]”

The challengers argued that banning all travelers from six countries violates § 1152. They note that § 1152 was added to the INA 12 years after § 1182. Rules of statutory construction suggest that the newer section limits the old, meaning the president can’t discriminate by nationality—or at most he can only do it in granting of non-immigrant visas. The travel ban bars all entry, and thus goes beyond § 1182, they said.

Keenan’s separate opinion added a third statutory argument straight out of second-year administrative law casebooks. Under § 1182, the president must “find[] that the entry of ... any class of aliens” would be “detrimental” to the national interest, she noted. Trump’s order, she wrote, includes no “findings” of fact. At oral argument the government said the president was “not sure” whether immigrants from the six countries pose a danger. “[T]he statutory text plainly requires more than vague uncertainty,” she wrote.

Wynn’s statutory argument is more sweeping. “Did Congress, in enacting Section 1182(f), authorize the President to deny entry to a class of aliens on the basis of invidious discrimination?” he wrote. His answer was no.

Under basic administrative law principles, an executive agency (even the president) may use only the authority the statute actually grants. Wynn argued that, without a clear statement by Congress, religious discrimination is not authorized under the INA. An old rule of construction dictates that courts should read statutes, if possible, in ways that don’t raise constitutional doubts. A broad reading of § 1182(f) would do so:

If, as the Government’s argument implies, Congress delegated to the President the authority to deny entry to an alien or group of aliens based on invidious discrimination against a race, nationality, or religion, then Section 1182(f) would encroach on the core constitutional values set forth in the First, Fifth, and Fourteenth Amendments: The President could deny entry to aliens of a particular race solely based on the color of their skin ... solely on the basis of their place of birth ... [or solely on the basis of adherence to] a particular religion ... Or, as this Court concludes the President likely did here, the President could rely on one form of invidious discrimination—discrimination based on national origin—to serve as pretext for implementing another form of invidious discrimination—discrimination based on religion.

According to a Congressional Research Report earlier this year, no president before Trump has ever invoked his § 1182(f) authority to exclude all entry by any one national group. Most § 1182(f) orders exclude not national groups, but subgroups of aliens who have engaged in some activity—e.g., “undocumented aliens by sea” or “Panamanian nationals who formulate or implement the policies Manuel Antonio Noriega and Manuel Solis Palma.” The one possible exception is an order by President Ronald Reagan in 1986, “[s]uspending the entry of Cuban nationals as immigrants”—but even that order only excluded those seeking immigrant visas. It also included “specified exceptions,” such as “immediate relatives” of Americans, and was thus narrower than Trump’s travel ban.

The statutory arguments might offer executive-minded justices a welcome off-ramp from a senseless constitutional confrontation. The administration has still not produced any factual basis justifying the six-country ban. Department of Homeland Security reports deny that immigrants from these countries pose any unusual danger; past national-security officials filed briefs stating that the ban serves no anti-terrorism purpose.

The government has reacted to these factual questions much the way Trump himself reacts to questions about Russia—Fake News! Nothing to see! Shut up! None of your business!

A justice who genuinely cares about presidential authority might be appalled to see this president put the legitimate power of his office at risk in pursuit of this inept, nakedly political executive order. The game might seem not worth the candle; or perhaps there never was a candle at all.

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With the Travel Ban, Federal Courts Face a New Legal Issue

Garrett Epps, The Atlantic — Tue, 21 Mar 2017 10:15:11 -0400

If you’re ever sued, I tell my students, the lawyer you want is not the one who thumps the table and assures you that your case is open and shut. No, it’s the lawyer who sits quietly and then says, “We need to get ready, because the other side has a strong case”—and then states that case as well as the other side will.

That’s how a lawyer finds a way to win. And that’s how to understand an important legal dispute—find the best argument for both sides.

That intellectual care has been missing this week in the reaction to the three legal setbacks President Trump’s revised travel ban suffered last week. Trump himself immediately blasted the decision by district judge Derrick Watson in Honolulu to temporarily block the ban as “an unprecedented judicial overreach,” and attacked Watson’s motives, telling a screaming rally, “You don’t think this was done by a judge for political reasons, do you?” Trump acolyte Sean Hannity suggested that Watson had been doing “weed and blow” with none other than Barack Obama.

The intemperate reaction, though, wasn’t limited to the Trump circle. David Frum branded Watson’s decision as “dangerous.” Frum added that Watson’s “approach is so ambitious and so new that it renders it incredible.” The Pepperdine law professor Douglas Kmiec tweeted that Watson “put politics over law, & diminished both.”

There was intemperance on the other side as well. The liberal warhorse Mark Green, now part of a “shadow cabinet” monitoring the Trump administration, exulted that “every judge says Muslim Travel Ban illegal.”

All of these figures would do well to try to see both sides of these cases. Who should win? Well, in a universe where the moral arc actually did curve toward justice—that is, in a world where the courts apply the Constitution’s text and history as they should be applied—my answer is that the ban is unlawful. But looking at existing precedent—how the Constitution and the law has been read over time—it could come out either way. The questions it poses are very new.

So commentators should be very careful—lest they descend to Trump’s level—before impugning the integrity of any judge who hears the case.

To begin with, “every judge” has not found either executive order illegal. In fact, depending on whom you include, the judge count is close to even. Two federal district judges—Judge James Robart in Seattle and Judge Leonie M. Brinkema of Northern Virginia—rejected the first version of the executive order. Another, Judge Nathaniel Gorton of Boston, refused to block it. Judge Robart’s order was appealed to the Ninth Circuit. There it was upheld by a three-judge panel; when the active judges considered setting that panel decision aside, five judges explicitly wrote that the panel decision was wrong.

For those scoring at home, that makes the score on that first executive order: Administration 6, Challengers 5. And as I wrote last week, Ninth Circuit Judge Jay S. Bybee’s dissent lays out a cogent argument that this executive order was well within the president’s power. I think the argument wrong, but it can’t be dismissed.

As for the contention that Watson’s opinion is “political”: Where is a scintilla of evidence for this? As The New York Times reported last week, Watson, an Obama appointee, is actually an independent whose career has been largely apolitical. Whether advanced by Fox News hosts or professors, a claim that a judge has thrown over law for politics should be supported by evidence or promptly withdrawn.

And here’s some evidence against that claim: As of this writing, the score on the redrafted, second version of the executive order is 2-0 against the administration. A few hours after the Hawaii decision, a district judge in Maryland issued a narrower order blocking the same executive order. That judge was Theodore Chuang, whose previous billet was deputy general counsel of the Department of Homeland Security.

The two decisions are not identical. Watson, in Honolulu, found the second executive order a violation of the First Amendment’s prohibition of “establishment of religion.” Chuang, instead, found that the order violates an anti-discrimination provision of the Immigration and Nationality Act. That provision forbids discrimination in granting immigrant visas on the basis of “race, six, nationality, place of birth, or place of residence.” Thus, he upheld the order’s limit on granting non-immigrant visas, but ordered the government to process immigrant-visa applications from nationals of the six “designated countries” without regard to the order.

What’s important, however, is where the judges agreed: In testing the validity of the second executive order, they both wrote, a court should not close its eyes to what Donald Trump says he is really up to. Since late 2015, when Trump officially promised “a total and complete shutdown of Muslims entering the United States,” Trump—as candidate, as president-elect, and as president—has made clear his intention to stop the flow of Muslim entrants to the United States, arguing that their religion makes them disloyal and potentially dangerous. “Such explicit statements of a religious purpose are ‘readily discoverable fact[s]’ that allow the Court to identify the purpose of this government action without regard to ‘judicial psychoanalysis,’” Chuang wrote; Watson agreed in much the same words.

Here’s the new legal issue: Can a federal judge consider a president’s statements about his intentions when considering the meaning of an executive order? Jeffrey Toobin, in The New Yorker, wrote last week that courts should “reject the use of Presidential statements altogether. The Muslim ban is either constitutional or it’s not—and Donald Trump’s words on the campaign trail don’t settle that question one way or the other.”

There’s something to that argument. Though both executive orders are signed “Donald J. Trump,” they are not actually the work of the same “Donald J. Trump” who stumped the country falsely accusing American Muslims of cheering 9/11. In fact, the order is the product of the entire executive branch. Campaign statements may not be reliable guides to its interpretation.

Toobin in part relies on a forthcoming Texas Law Review article by Kate Shaw of Cardozo Law School in New York. In an email, Shaw disagreed slightly with Toobin’s conclusion. She said, “it is for the most part inappropriate for a court to give legal effect to presidential statements whose goals are political storytelling, civic interpretation, persuasion, and mobilization—not the articulation of considered legal positions.” However, she added, “in a subset of cases, a degree of judicial reliance on presidential speech is entirely appropriate.” Within that subset, she said, fall “cases in which government purpose constitutes an element of a legal test.”

That’s what the judges in the cases concerning the second executive order were doing—they were using Trump’s statements to determine whether bald religious discrimination was the “government purpose” behind the travel ban. A long line of cases establishes that, in considering whether legislation is intentionally discriminatory, courts can and should consider statements made by those with the power; it’s not clear why presidents’ statements should be treated differently.

And—here speaking for myself—I think there’s a second reason the statements should be considered. The judges are using Trump’s words as evidence not only to interpret government purpose but to decide whether the government is even acting in good faith. And that term is important. Why? The major precedent that the executive orders’ supporters rely on is a 1972 case called Kleindienst v. Mandel. In that case, the Court considered a decision excluding a famous Belgian Marxist intellectual who was invited to speak at an academic conference. The government said it was excluding him not because of his point of view but because he had disobeyed the conditions of an earlier visa. The Court held that judges should not look behind such a decision “when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason.”

“Bona fide” means “good faith.” That’s a potential iceberg for the administration. What both judges found is that, on the record before them, Donald Trump has twice now come before the bar of justice and lied through his teeth. Twice now, he has claimed that his orders have nothing to do with prejudice against Muslims—Mercy me, no, heaven forfend!—while signaling in the broadest terms that these claims are lies.

It’s possible to disagree about the relevance of specific statements. The official campaign statement? Well, on the one hand, it’s “official”; on the other hand, Trump wasn’t president yet. Former New York Mayor Rudolph Giuliani’s claim that Trump asked him to create a legal form of a “Muslim ban”? Smoking gun or pathetic claim of relevance by a passed-over windbag?

What about this one? On January 27, 2017, while sitting in the Oval Office with reporters present, President Donald J. Trump signed the first executive order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

Then, as Watson writes, “President Trump read the title, looked up, and said: ‘We all know what that means.’”

What evidence of bad faith could be stronger? A hand-lettered sign saying: “Ignore me, I’m lying”?

Could a court look at that statement, in the context of the events of the past two years, and find it irrelevant? I think it could do so only by choosing willful blindness over constitutional duty.

Again, I cast no aspersion on judges who disagree. But I think their argument is wrong even in ordinary times. And at moments like these, judges must be willing to hold accountable a president whose words show willful contempt for the truth, for the courts, and for the Constitution.

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Why Customs and Border Protection's ID Search of a Domestic Flight Is on Weak Legal Ground

Garrett Epps, The Atlantic — Wed, 08 Mar 2017 09:30:30 -0500

The incident at John F. Kennedy Airport, where Customs and Border Protection Agents boarded an incoming flight from San Francisco and asked for—or demanded––ID from every passenger, has hit a nerve with many people—some of whom, like me, think that a demand that passengers exiting a domestic flight show “papers” would probably be unconstitutional, and definitely smacks of a nascent police state.

But others have suggested that, because the incident took place at an airport, government agents actually have the legal authority to demand ID from anyone. I researched the question further, and reached out to former government lawyers. But I still can’t find legal authority for a demand for ID from passengers on a domestic flight.

Remember the question: Can the Homeland Security immigration agents require passengers deplaning from a domestic flight to show ID? My answer is still that I can’t find any statutory authorization or any case that would permit such a requirement.

A CBP spokesperson characterized the incident as a “consensual” search—meaning, in other words, that the agents asked passengers if they would mind terribly showing ID as they exited.

Under the Fourth Amendment, law enforcement can almost always ask a person to voluntarily provide ID, or allow a search, even in situations where they can’t demand either. Unfortunately, the courts have usually held that the officers are not required to tell people they have the right to refuse. The test is whether a reasonable person would feel free to refuse. So in theory, the individual can say something like, “Am I free to go?” or just stroll away. In practice, many people are intimidated or persuaded to cooperate.

If the JFK search was voluntary, the officers did nothing legally wrong in this case. But on the legal point, as far as I can tell, there is no exception to the Fourth Amendment that would allow a demand for ID.

A searched aimed a specific individual might be a different matter. Under the Fourth Amendment, a “reasonable suspicion” that a person is involved is a fugitive, or committing a crime, or unlawfully present is enough to permit law enforcement to approach, and perhaps eventually search. That requirement—“reasonable suspicion”—is the protection Americans have against warrantless searches and seizures. Police can often detain (“seize”) and search without a warrant—if they have seen something that would lead a reasonable officer to think there’s a violation of law or evidence of crime to be found.

What they can’t do, as a general rule, is just stop or search everyone in a given area on the chance that one of them will be a criminal. The Supreme Court wrote in 2001 of its longstanding “general prohibition against nonconsensual, warrantless, and suspicionless searches.” In the case of the JFK search, CBP said that the object of the ID check was a specific named individual. (This individual was not on the flight.)

If so, why would it be “reasonable” to check everyone on the plane—a population that was probably half male and half female, ranged in age from to 8 months to 80 years, and was ethnically diverse? Could they really not know the individual’s size, sex, age, and ethnicity? If they did, but thought it was more convenient to require everyone to show papers, they were violating the Fourth Amendment—convenience is not a “special circumstance” permitting a warrantless search.

And note that the search was, according to CBP, for a documented alien who had been ordered deported. Deportation is a civil, not a criminal, proceeding. It’s hard to understand why a civil order, however important, justifies an exception to the Fourth Amendment.

An international airport, a number of correspondents pointed out, is considered in Fourth Amendment law to be the “functional equivalent of the border,” even if it is located hundreds of miles from the physical border. Officers can of course check passports and identities at a border crossing, and search any possessions of travelers, even without reasonable suspicion.

The “functional equivalent” doctrine was unveiled as an aside in a 1972 Supreme Court case called Almeida-Sanchez v. United States: “a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.”

The Supreme Court didn’t explain exactly what the words mean; but as far as I can tell, every circuit that has considered it has concluded that (as the Fourth Circuit held in a case called United States v. Laughman), “there cannot be an Almeida-Sanchez border search without some degree of probability that the vessel has crossed a border; i.e., the officials must possess some articulable facts tending to show that the vessel has recently crossed an international border.” If a passenger has just gotten off an international flight, and hasn’t gotten into the regular population yet, then a warrantless “border search” is fine; ditto when a passenger is boarding a flight out of the U.S.

But Delta Flight 1583 was not an international flight. It took off in San Francisco and landed in New York. And even if some of the passengers had entered the country just before boarding 1583, the “functional equivalent” exception applies only to their original point of entry. In fact, the CBP doesn’t allege that even the object of the search had crossed an international border. Whoever it was already had documents allowing presence in the country, and so had been admitted already.

So the “functional equivalent” doctrine doesn’t apply.

Others pointed out that airline passengers are screened by Transportation Security Officers, who look at ID and can demand to open luggage. Thus, the idea goes, anyone in the secure area has generally agreed to any kind of search or stop until they complete their flight and leave the destination airport.

TSA searches—which fall into a category called “administrative searches”––are constitutionally tolerable, the courts have said, because passengers can refuse them. Passengers have notice before they get to the airport that the searches will be conducted, and if they don’t want to furnish ID or put a bag through the magnetometer, they can go home or travel by land. In addition, finally, TSA checks are also limited to the purpose for which they are authorized by law—aviation safety. In a 1989 case called United States v. $124,570 U.S. Currency, the Ninth Circuit explained, “While narrowly defined searches for guns and explosives are constitutional as justified by the need for air traffic safety, a generalized law enforcement search of all passengers as a condition for boarding a commercial aircraft would plainly be unconstitutional.” A passenger already on a plane has no ability to turn back; and according to CBP’s account, the search had no relation to aviation safety.

Finally, people point to Supreme Court cases permitting permanent, marked, fixed checkpoints near the border, where CBP agents ask each person in passing cars whether he or she is a citizen—and direct some to “secondary screening” areas where their documents may be checked, and, if probable cause is found, the cars can be searched. According to the immigration statutes, this kind of search can be made within a “reasonable distance” of the border. The Border Patrol has interpreted that phrase as meaning within 100 miles.

But the caselaw doesn’t say that the Border Patrol can conduct any kind of search it wants at any time and any place within a “reasonable distance.” A 1975 case called United States v. Brignoni-Ponce rejected, 9-0,“roving patrols,” in which officers in cars would flag down motorists near the border and investigate the occupants at the roadside. Allowing the Patrol to randomly stop cars in those circumstances, the court majority said, would submit people near the border “to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.” The sudden, unexpected appearance of CBP agents at a domestic jetway seems to me a lot more like a “roving patrol” stop on a dark highway than a brightly lit, well established checkpoint.

To clarify again: Of course law enforcement can ask for cooperation. And they can do more than that—they can detain and search individuals if there is “reasonable suspicion” about them in particular.

What they can’t do, I think, is begin randomly demanding papers of everyone on a flight, and detaining those who refuse.

A number of scenarios have been suggested. If, for example, law enforcement had a credible tip that “somebody” on a domestic flight had a bomb or was an immediate threat, then perhaps a court would find what is called “exigent circumstances” or “special circumstances” permitting a quick check of every passenger.

But that’s not what was happening at JFK, according to CBP. The agents were searching for one particular passenger—who was wanted because he was subject to an order of deportation, not, apparently, because of immediate danger of terrorism or criminal activity. Deportation orders are civil matters—hardly the stuff of “exigent circumstances.”

Under these circumstances, I can’t see any legal precedent or authority that would permit agents to bar exit from a plane. Passengers should be free to refuse to cooperate “voluntarily.”

That’s not to say that if someone does refuse, the agents won’t arrest him or her, or take them to “secondary screening.” I think that would violate the law, but we’ve all read about the new, “unshackled” immigration enforcement policies of DHS generally. In the current climate, some federal judge might decide that “show me your papers” is permissible at airports. But so far none has; and it would be a radical and alarming change in the law if one did.

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Is the Southern Border a Constitution-Free Zone?

Garrett Epps, The Atlantic — Wed, 22 Feb 2017 09:35:36 -0500

“No matter whether the Constitution follows the flag or not,” Finley Peter Dunne’s Mr. Dooley said long ago in an obsolete dialect, “the Supreme Court follows the election returns.”

Both of these—the traveling flag and the election returns—formed a complicated subtext Tuesday at the first argument the Supreme Court has heard in Trump’s America, along with the nature of life along a wall on the Southern border. The question presented, boiled down to its essence, was this. If a Border Patrol officer in the U.S. is so vexed by the antics of a Mexican teenager standing on Mexican soil that he shoots the boy dead across the border, does the Constitution even apply? And if so, does the law give the boy’s father a remedy?

The Justices’ questions of the parties showed little sign that they are considering this issue in a country that has changed—is changing—its attitudes toward foreigners, immigrants, and law enforcement almost hourly, and for the worse. (Indeed, the Administration released its sweeping new guidance memos, which target for deportation a wide swatch of immigrant America, literally while the Court was sitting.)

Those changes in the atmosphere make Hernandez v. Mesa a complicated straw in what may be a very ill wind indeed. The facts are these: on June 7, 2010, a group of Mexican teenagers began playing a silly and aggravating game near a border checkpoint on the Rio Grande between El Paso, Texas, and Ciudad Juarez, in the Mexican state of Chihuahua. The border at this area is a culvert containing the 33-foot-wide Rio Grande; the culvert has sloping concrete inclines on both sides, with fences outside. The teens began running up the incline to touch the fence on the U.S. side, then running back. Agent Jesus Mesa of the U.S. Border Patrol arrived and grabbed one of the boys by the arm as he tried to scamper down the incline. Another boy, Sergio Hernandez, fled past the agent and hid behind a pillar supporting the bridge nearby. Agent Mesa drew his pistol. When Sergio Hernandez looked out from behind the pillar, the agent shot him through the head. The distance was 60 feet.

Hernandez was 15 years old. He died on the spot. He was not armed and, when shot, he was on Mexican soil.

There is dispute about some of these facts. Immediately after the shooting, the CBP claimed that Mesa had fired in self-defense against a rock-throwing crowd. Cellphone videos then surfaced that cast doubt on this. The Arizona Republicreported that one video shows Sergio “peeping out from behind a pillar beneath a train trestle. He sticks his head out; Mesa fires; and the boy falls to the ground, dead.”

There’s been no public official accounting of what happened. The CBP did an investigation itself and concluded there were no grounds to charge Mesa with a crime. Mexico charged him with murder and asked the U.S. to extradite him, which the federal government refused to do. Then Sergio’s parents filed a lawsuit in U.S. federal court against the government and CBP officials, including Agent Mesa. A court dismissed the claims against all defendants; but a panel of the Fifth Circuit reinstated the action against Mesa, holding that the family was entitled to a trial of its claim that the killing of their son amounted to a violation of the Due Process Clause of the Fifth Amendment. The full Fifth Circuit then reversed that decision, dismissing the family’s claims.

Before a trial could be held on the merits, the Supreme Court granted review of that judgment, asking the parties to argue whether the Fourth Amendment (which forbids “unreasonable searches or seizures,” including arrests and shootings) applied to the case; whether that rule was so clear at the time of the shooting that any “reasonable officer” would have known it; and whether the family should be able to sue Mesa under a 1971 case called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Because there is no general statute permitting civil-rights suits against federal agents, that case is the vehicle for individual lawsuits against federal officials who violate “clearly established” rights. But it is not a favored child of the current court; indeed, as Justice Anthony Kennedy pointed out in argument Tuesday, “Since 1988, this court has not recognized a single [new kind of] Bivens action.”

So Sergio’s family faced an uphill slog, and its progress wasn’t made easier by their lawyer, Robert C. Hilliard, a successful products liability and personal injury lawyer from Corpus Christi, Texas, who seemed out of his depth in the well of the Supreme Court. Representing Agent Mesa was El Paso attorney Randolph Ortega, a specialist in criminal defense. The government—supporting dismissal of the family’s claim—had Edwin Kneedler of the Solicitor General’s office. Kneedler, who is a veteran of well over 100 arguments in front of the court, was at ease; the other two less so.

Watching oral argument is always an exercise in attempted telepathy: what is going on in the fine legal minds sitting on the bench? Seldom has that seemed more true than in late winter of 2017, as the Trump administration begins assembling the legal and logistical machinery necessary for an all-out assault on America’s undocumented population. The court this term has already heard cases examining whether the Department of Homeland Security can hold aliens indefinitely while seeking to deport them, and whether courts can hold federal officials accountable when evidence shows they deliberately subjected detainees to punitive and unconstitutional conditions in detention. Hernandez—baldly put, asks whether the border is a law-free zone.

Questions don’t always telegraph a Justice’s position, but they are the best evidence we have. The court’s four moderate liberals seemed to be laboring to help Hilliard construct a proposed rule that might win five votes; Chief Justice John Roberts and Justice Samuel Alito seemed to be worried that applying the Constitution to this case might lead to tort actions against U.S. drone pilots who sit in the U.S. and guide drone aircraft on bombing strikes abroad; and Justice Kennedy seemed to be agonized about the potential bad effects of federal courts blundering into “the most sensitive areas of foreign affairs.”

Hilliard asked the Court to hold that any time a civilian law enforcement officer acts inside the U.S. in a way deprives a foreign civilian on foreign soil of his life, and the other country’s government does not object to U.S. court jurisdiction, the survivors have a cause of action.

“That’s a test that, surprisingly, fits the exacts facts of your case,” Roberts interrupted.

Hilliard replied that the “intent of our rule is simply to involve this Court in addressing an ongoing domestic routing law enforcement issue along our southwest border”—that is, the repeated shootings by CBP personnel of Mexicans on both sides of the border, which, he said “has resulted in at least ten cross-border shootings and six Mexican national deaths.” Later he said, “the interaction at the border, at our southwest border, has resulted often in shots being fired across the border.”

This is not a good strategy in an appellate court, because it seems to invite the court to become a kind of super-police commission, rather than doing its job, which is to lay down rules of law. Justice Stephen Breyer explained to Hilliard what was needed. His words could be a wall plaque in any aspiring appellate lawyer’s office, because a workable rule is what courts beg lawyers to give them.

[A]re we, in deciding for you ... deciding as well that anyone who suffers a drone strike can come to New York and bring a law case? Are we deciding that the matter is unclear so that when the proper authorities get advice from their lawyers over in the Executive Branch, they have to say we're confused? Okay? So what are the words that we write that enable you to win, which is what you want, and that avoid confusion, uncertainty, or decide these other cases the proper way? That's the question you've been given three times, and I would certainly like to know your answer.

Hilliard never succeeded in giving one. Breyer suggested a rule permitting liability in a special area like the Rio Grande culvert, which is maintained jointly by Mexico and the U.S. Ortega, representing Agent Mesa, repeatedly insisted that “[t]he border is very real and very finite. It's not elastic. . . .” Justice Ruth Bader Ginsburg tartly responded that “I don't understand all this about Mexico. It's the United States law operating on the United States official who's acting inside the United States. This case has, as far as the conduct is concerned, United States written all over it.”

Ginsburg then suggested that “when there's an act outside that causes injury inside, the regulating rule can come from the place where the conduct occurred.”In other words, U.S. law and the Constitution would apply to Mesa, who was in the U.S., even if the harm he caused was outside. That argument seemed to appeal slightly to Justice Kennedy, whose vote would be crucial to any decision for the family.

Kennedy mostly seemed to lean toward the government, on the grounds that lawsuits in cross-border shooting cases might complicate relations with Mexico. (Mexico enthusiastically supports the family’s case and has filed a brief on their side with the Supreme Court; but perhaps that would be different in other cases.) “[I]sn't this an urgent matter of separation of powers for us to respect the duty ... the principle role that the executive and the legislative have with respect––respect to foreign affairs?” he asked Hilliard.

Ousting courts from this kind of suit, of course, might leave victims and their families with no remedy at all. Shouldn’t the Justices see what is happening in the country and shy away from any rule that suggests the border is a gateway to a law-free zone?

Perhaps; but the job of an appellate court, as I said above, is not to solve crises but to fashion rules—rules to function in a system of laws. It is to imagine a world in which the Constitution is respected, and the government acts for the common defense and the general welfare, and the courts have every reason not to extend themselves too far into the conduct of foreign and military affairs.

Do we live in that world? If not, is it the job of the Court to create it—or does that task fall to the rest of us?

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Will the Courts Find Trump's Travel Ban Unconstitutional?

Garrett Epps, The Atlantic — Mon, 06 Feb 2017 10:02:06 -0500

President Trump can perhaps be forgiven for not understanding the quirks of federal District Court jurisdiction. Saturday he Tweeted, “Why aren't the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?”

The elementary reason is this: one judge—Judge Nathaniel Gorton of the District Court for the District of Massachusetts––refused to enter an injunction. His order doesn’t have any legal effect. It did not even resolve the claims of the six plaintiffs in front of it, simply said that they were not entitled to an emergency order halting Trump’s travel-ban order before a trial.

The other, “so-called Judge” James L. Robart of the Western District of Washington, did issue an order—a nationwide “temporary restraining order” (TRO) that instructs Trump and the Departments of State and Homeland Security to stop immediately enforcing the travel-ban order.

While that order is in effect, it doesn’t matter whether another judge disagrees; the parties, from Trump on down, are bound. A “temporary restraining order”—which usually runs for a matter of days only––is an emergency measure designed to freeze the situation until the district court can hear arguments and full briefs from the parties. (In Washington v. Trump, that hearing is scheduled for Monday.) At that hearing, the plaintiff (in this situation Washington and Minnesota) will make their legal arguments and ask the judge for a “preliminary injunction,” an order that will freeze the situation until a full trial on the merits can be held. The government will argue that the law is on its side.

The order applies across the entire country, Judge Robart wrote, because a patchwork order—in which Customs and Border Protection enforced the order at some airports but not others “would undermine the constitutional imperative of ‘a uniform Rule of Naturalization.’”’ The quotes are from a 2015 opinion by Fifth Circuit Judge Jerry Smith, ruling on then-President Obama’s “deferred action” program for some undocumented immigrants. Conservatives adored that ruling; they are less enthusiastic about this one. But sauce for the nativist goose, Judge Robart implies, must be sauce for the immigrant gander. The same logic goes for his decision to find that the states of Washington and Minnesota have “standing to sue.” The states claim that they are injured by the order because it injures their people and in-state corporations by separating families and preventing the entrance of skilled workers. “State standing” was pioneered by Texas in its challenge to Obama; that chicken may not be all the way home to roost yet, but it is flapping homeward.

Monday’s preliminary hearing will address scope and standing again. Then the argument will turn to the merits—that is, is the executive order warranted by the immigration laws, and if so, is it constitutional?

The administration really might draw some comfort from the Massachusetts opinion. Judge Robart in Washington thinks the order violates the statute and the Constitution; Judge Gorton in Massachusetts thinks it doesn’t. Both are smart judges confronting a new issue.

We don’t and can’t know how the case will come out. Both sides have strong arguments.

First, the statutory issue. It arises because of possible conflict between two provisions of the Immigration and Nationality Act. The first, 8 U.S.C. § 1182(f) was adopted in 1952. It provides that the president may find “that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” and “suspend the entry” of those aliens. The second, § 1152(1)(A), was added in 1965. It provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.”

Combining these two suggests that the President can choose “classes” to exclude—as long as the “classes” aren’t based on “race, sex, nationality, place of birth, or place of residence”—which the travel ban order definitely is. That’s especially convincing since the anti-discrimination language was added after the “classes” language. But a court could say that the “any class” language limits the anti-discrimination language, instead of vice-versa.

The statutory language doesn’t ban discrimination based on religion, though. That’s a command drawn from the Equal Protection principle of the Fifth Amendment, as well as the Free Exercise and Establishment Clauses of the First Amendment. So does the “travel ban” discriminate against Muslims? Here again, the government says no: it is, they say, a total ban on refugee admissions, coupled with a geographic ban on visa applicants from seven Middle East nations––Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia. No religious discrimination there, right? (Especially, the argument goes, since there are plenty of predominantly Muslim nations not covered by the visa ban.)

There’s a potential fly in that ointment, however: the ban by its own terms exempts on a “case by case basis” from both the refugee and visa bans applicants from any country—including the disfavored seven—for a number of reasons, “including when the person is a religious minority in his country of nationality facing religious persecution.”

So: here’s an analogy that might convince a court. Suppose for some reason the government throws a travel ban around the following American cities—Detroit, Michigan; Jackson, Mississippi; Miami Gardens, Florida; Birmingham, Alabama; and Baltimore, Maryland. An alert demographer will note that these are majority-black cities. Further, imagine that the government includes a “case-by-case” exemption if “the individual is a member of a race that is in a minority in that city”—in other words, white. Could you keep a straight face at a claim that this was “race-neutral”? Note that lots of black people aren’t covered by the order—but that in the affected cities, the government is clearly—but its own admission--leaning against black people.

It’s not a precise analogy, and Judge Gorton wouldn’t agree with my example, since, he notes, the language “could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian.” My reaction to that is the sarcastic Briticism, and then you wake up—especially since Trump himself explicitly said the intent is to prioritize Christians. But a court has the option of ignoring presidential statements and simply following the text; and Gorton finds the exception neutral.

Assuming that the order does discriminate by religion, how serious a violation of Equal Protection would that be? Remarkably enough, that is still an open question before the courts. Most religion cases are tried under the First Amendment. But the First Amendment prevents discrimination against religions—thus it is mostly concerned with religious institutions and practices. Equal Protection would bar discrimination against individuals because of their religion in any aspect of life, not simply their religious activities. (“No Muslim prayers in this space” is First Amendment discrimination; “Muslim kids can’t play on the jungle gym” is Equal Protection discrimination.)

The Supreme Court has never addressed the second kind of religious discrimination. The best guidance on how a court would assess it comes from a recent case called Hassan v. New York Police Department, in which the Third Circuit struck down a NYPD program that surveilled Muslims all over the northeast; under Equal Protection, the court said, discrimination by religion was precisely as bad—and thus as presumptively unconstitutional—as discrimination by race.

But even if the order is found to be intentionally discriminatory against Muslims, the plaintiffs will still have a hurdle to clear: some cases, and some scholars, have argued over the years that equal protection simply does not apply to immigration decisions. In other words, they say, Congress—or a president given the power to do so by Congress—could decide to exclude all members of any race, nationality, or religion, without offending the Constitution.

Judge Gorton in essence bought that rationale. Because immigration decisions involve a “fundamental sovereign attribute” of the nation, he wrote (quoting earlier cases), they are “largely immune from judicial control.” Thus, he concluded, excluding immigrants by religion might make sense, and thus is likely permitted.

All told, the issues in the travel ban case are complicated and uncertain. The eventual decision could go either way—especially when it reaches the Supreme Court, as it likely will. That Court has shown some willingness to second-guess the federal government on the exclusion of aliens—but some hesitation as well.

So it’s hard to predict how it will come out—especially since there may very well be a ninth justice on the Court by the time it gets there.

The plaintiffs, however, have a secret weapon. Its name is Donald Trump and its venue is Twitter. Vulgar as it was, his tweet calling Robart a “so-called judge” and his ruling “ridiculous” must have delighted the lawyers for Washington and Minnesota.

Insulting judges and courts, I tell my students, is usually not considered brilliant legal strategy.

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Two Cases Could Limit or Enhance Trump's Ability to Engage in Mass Deportations

Garrett Epps, The Atlantic — Wed, 18 Jan 2017 09:39:21 -0500

The Supreme Court sometimes seems like Plato’s cave—a place where events of the outside world cast only faint and distorted shadows. Nonetheless, no justice of the Court since at least John Marshall has taken the bench without a lively appreciation of presidential politics. Without it, you just don’t get there.

So what do the four conservative justices think of America’s president-elect? At least some of them seem like highly principled conservatives—and the new leader of their party is neither. He seems to many instead like a cross between Huey Long and Uzbekistan’s late dictator Ismail Karimov, a blustering tyrant determined to govern by a Tweet of iron.

Do they worry about the hands that will soon control the fearsome mechanism of Immigrations and Customs Enforcement and its parent Department of Homeland Security, as well as the F.B.I. and the Bureau of Prisons? Does the prospect alarm them?

As the University of Texas’s Stephen Vladeck explained recently in Just Security, this Term is likely to be quite consequential for the ways in which the United States treats non-citizens within its borders. Some of these cases may carry a hint of the unspoken reaction of the Court’s right bench. The first case, Jennings v. Rodriguez, concerns whether aliens being detained pending deportation are entitled to a bail hearing and to release while their cases (or their appeals) are pending. The second, Ashcroft v. Abbasi, asks whether official immunity would shelter a government policy of detaining aliens in abusive or sub-standard conditions—making them so miserable that they will go on their own.

Let’s remember the vast scale of what the new administration proposes to do in the immigration area. On November 13 of last year, The New York Times ran a headline saying “Donald Trump Appears to Soften Stance on Immigration.” This “softer” position, God save the mark, is a mere threat to deport 2 to 3 million human beings—more people than live in any one of at least 14 American states. Many of them will have families and ties to their community. This is not “softness”—indeed, it skirts criminality. Deportation on this scale—especially when targeted at certain national origins or ethnicities––risks being considered “forcible population transfer”—an emerging crime in international human-rights law.

Couple this dangerous scale with the issue of what will happen to these people before they are deported. The tastefully named “Operation Wetback” in 1954 was the last mass deportation scheme in U. S. history; Trump has praised it as an example to be followed.

It led to the forced deportation, with little or no due process, of as many as 1.5 million Mexican citizens in the U.S.—and even to many U.S. citizens of Latino origin being rounded up and marched across the border for the “offense” of not carrying their birth certificates. Some detained Mexicans and Mexican Americans were held at crude detention camps in the desert; others were dropped off near the border and left to find their own way “home.”

A massive deportation today would require similar logistics—buses or trainloads full of prisoners, camps (perhaps, the government has hinted, on abandoned Army bases). And once prisoners were there, the government would face a dilemma. Because the Fifth Amendment’s Due Process clause applies to all “persons” in the United States. The Supreme Court has repeatedly warned that “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”

The process they get can be pretty sketchy. Some categories of aliens—those arrested near the border without documents, those who have been removed before, or those convicted of “aggravated felonies”—are subject to a set of procedures that Shoba Sivaprasad Wadhia of Pennsylvania State University Law School has christened “speed deportation.” In theory, these processes can be completed in days or weeks. Others, by statute, are entitled to a full hearing in front of an immigration judge and an appeal to the Board of Immigration Appeals. Those courts have already buckled under the flow of cases spurred by the Obama Administration’s policies, with immigrants waiting a year or more for hearing dates. Quintupling the caseload will guarantee make that worse.

Even the “speed deportation” candidates, however, are at least formally entitled to something more than quick bus ride to the border. Aliens arrested as “removable” may actually have claims to bar removal. Some (as noted above) may actually be U.S. citizens or lawful residents. Others may be candidates for political asylum (genuine asylees by law cannot be returned to their countries of origin). Some may have been detained because of a confusion of identity. Some may have other equitable reasons that would lead the government to allow them to stay. They must have a chance to contest the alleged grounds for removal, and a request of some kind for judicial review.

But many do not seek their rights. They may not know about them; they have no right to counsel—or they may find the conditions of detention unbearable. They can be offered the alternative of something something called “voluntary departure.” Under this heading, aliens agree to leave and pay their own way home. The “advantage” is that an alien who accepts it won’t be detained, and remains at least formally qualified to re-enter illegally. In practice, says my colleague Elizabeth Keyes of the University of Baltimore law school, “voluntary departure has been a bad deal” since it first began to be offered. A person who has departed voluntarily may not apply to come back for at least ten years, and may be subject to exclusion when he or she finally can apply.

Voluntary departure, however, is great for the government. Aliens might more easily be persuaded to take it if they can be kept in isolated detention compounds, far from family, community members, and potential counsel—and possibly subject to mistreatment by the jailers.

Jennings, the first case, now poses the question whether the government can hold people awaiting deportation indefinitely, pending hearings. Two Circuits—the Ninth and the Second—have held that aliens are entitled to a bail hearing and to release while their cases or appeals are pending. They based this holding on statutory language—but that is at best (for the aliens’ point of view) unclear; after hearing an argument about the statute, the Court issued an unusual order on December 15 directing the parties to brief the constitutional issue. Can the government hold aliens indefinitely if they are potentially deportable? For that matter, can it hold anyone indefinitely when the person is not charged with a crime?

(Watch the space below for outraged comments that just being unlawfully present in the U.S. is a crime. Two things: (1) It isn’t; and (2) the aliens are awaiting a civil proceeding, not a criminal trial. If they were charged with a crime, they would have a lot more, not fewer, rights—including a right to counsel and often a right to a bail hearing.)

The constitutional issue is made more portentous by the fact that a Republican Congress could decide to pass legislation stripping statutory guarantees above from some or all of the undocumented who fall into the icy hands of Homeland Security. But it can’t repeal the Constitution.

The answer to that question may mean a lot when the tumbrils of the “deportation task force” begin to roll. Immigration law already gives ICE wide powers over people who fall into its maw; will there be an appetite to give it more?

The second question is whether the government can make detention so miserable that aliens will go on their own? That issue is implicated by a case to be heard Wednesday. Ashcroft is actually three cases all arising out of the hasty post-9/11 roundup of “suspicious” seeming aliens in the New York area. These former detainees are suing the high officials—such as former Attorney General John Ashcroft—who oversaw the “hold until cleared” policy. Under this program, aliens who were grabbed (often off the street, for offenses like taking photographs) were held until the FBI satisfied itself they were no threat. Two reports by the Department of Justice itself have established beyond question that the aliens were held under brutal conditions and subjected to discriminatory treatment by officers at the federal detention center. (One, for example, was held in solitary and subject to such harassment that he could not be transferred to the general population because he was “was crying too much.”)

After thirteen years of bouncing around (under various names) in the lower courts, the plaintiffs won a preliminary victory in the Second Circuit. That court held that their complaint against the high officials could go to a full trial under a federal case called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. That case permits lawsuits against federal officials who violate “clearly established” rights. The Court has, over the years, narrowed the availability of Bivens, expanding the official immunity of federal actors. Most handicappers regard victory for the aliens as unlikely—especially since two of the Court’s moderate-liberals, Justice Sonia Sotomayor and Justice Elena Kagan, are recusing (apparently) because they had some contact with the case before they came on the Court. So a 6-2 victory for the government is likely.

But is there a single conservative justice who may be able to imagine what indefinite detention, and expanded immunity, could mean in conjunction with a new administration committed to a new version of Operation Wetback––or even the Japanese Internment?

Might such a justice write an opinion qualifying the result? Or is it business as usual at First St. NE, even as the sky falls everywhere else?

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Testing Federal Power Over Immigration

Garrett Epps, The Atlantic — Tue, 25 Oct 2016 09:47:25 -0400

It seems likely that the oral argument before the U.S. Supreme Court on November 9 will interest immigration specialists but not the public at large. The issue—whether Congress can discriminate against U.S. citizen fathers in awarding citizenship to foreign-born children—is, for most people, pretty obscure.

But if the evening of November 8 has ended in a surprise, Lynch v. Morales-Santana may draw a lot of sudden attention. Observers will scan it closely for signs of the Court’s attitude toward President-elect Donald Trump’s plans to “shut down” Muslim immigration to the U.S.

That constitutional question has hovered uneasily in the background throughout the campaign. A “Muslim ban” would certainly be unwise and un-American. But would it be unconstitutional?

In any other area of government policy, the answer would be somewhere between “yes” and “hell, yes.” For the U.S. to discriminate so baldly by religion against anyone in the country—citizen or alien, documented or undocumented—would a gross violation of the principle of equal protection, which applies to the federal government by virtue of the Fifth Amendment.

But immigration law is, in many ways, a constitution-free zone, governed by what the Supreme Court has called “the plenary power of Congress” over decisions of who may enter the U.S. and who may not. The “plenary power doctrine” essentially holds that Congress can make distinctions among immigrants—including some based on sex, race, and national origin—that (as the Court said in 1976) “would be unacceptable if applied to citizens.” Thus, the Court’s approach to this issue might give a hint about how the justices would react to a statute—or a Trump executive decision––banning Muslim immigration to the U.S.

The term “plenary power doctrine” arises from the Hobbesian view of the world that dominated the Court during the late 19th Century. At that time, the United States was slouching toward world empire while dealing with a flood of immigration from both Southern Europe and China. Until the 1880s, the Court had treated immigration laws they way it treated regulations of interstate and foreign commerce—that is, as subject to the same constitutional limits as any other federal law.

But now, as my University of Baltimore colleague Matthew Lindsay has written, the Court transformed congressional power over immigration “into a power of national self-defense derived from the nation’s inherent sovereignty.” In the chillingly named Chinese Exclusion Case, Justice Stephen Field said that the government must “give security against foreign aggression and encroachment,” whether it came “from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.”

The Constitution, cases like this suggest, may be a nice rulebook at home. But the federal government must have full (“plenary”) power to close its borders, without any hand-wringing about the rights of foreigners.

The politics of that period has some echoes in this one. But the Court has so far proved less susceptible than its predecessor to the outright xenophobia of measures like Arizona’s “show me your papers” law, key elements of which it struck down in 2012. This brings us to the case of Luis Ramon Morales-Santana. The United States wants to send Morales to the Dominican Republic, where he was born. But Morales insists that he is a U.S. citizen by birth. He challenges the statute that denies citizenship to him, because it discriminates by sex against his father.

The father, Jose Morales, was born in Puerto Rico in 1900. In 1919, Jose left Puerto Rico to work for a U.S. sugar company in the Dominican Republic. He was just three weeks shy of his nineteenth birthday.

Those three weeks have become important to his son. Luis was born in Santo Domingo in 1962 to Jose and his Dominican wife. When Luis was eight, his parents married—thus, in legal terms, “legitimizing” Luis, creating a legal father-son relationship. In 1975, 13-year-old Luis came to the U.S. legally with his father. He has lived here since then.

In 1995, he was convicted of robbery, burglary, and attempted murder; the Immigration and Naturalization Service began proceedings to deport him to the Dominican Republic. Luis, however, now argued that he was a U.S. citizen by virtue of his father’s citizenship.

There is no question that Jose Morales was a citizen when Luis was born. There is no question that Jose Morales legally recognized Luis as his son. However, Jose was not married to Luis’s mother when Luis was born. The Immigration and Nationality Act of 1952—which was in effect when at that time—made a pretty sharp distinction between two types of “illegitimate” children. It treated some children of unwed American fathers on the one hand much more harshly than children of unwed citizen mothers on the other.

Briefly put, if an unmarried American woman gave birth abroad to a child fathered by a non-citizen, she could pass her citizenship to the child—as long as she had lived in the US, at any point in her life, for one full year. On the other hand, if an American man fathered an out-of-wedlock child with a non-citizen mother, the child could become an American citizen only if 1) the father legally recognized his paternity and 2) the father had lived in the U.S. for a total of ten continuous years before the child’s birth.

And here’s the kicker—five of those ten years had to be lived after the father’s fourteenth birthday.

In other words, a man might be born in the U.S., and might live here without ever leaving, for 18 years and 364 days—but if he left the country the day before his nineteenth birthday, met a woman abroad, and fathered a child out of wedlock, he could not pass on his birthright citizenship to his “illegitimate” child. That would be true even if he raised the child himself, and even if he legally recognized the child as his.

And remember, this is precisely what happened to Luis Morales-Santana. Jose Morales, born in the U.S., lived there until three weeks before his 19th birthday. His work then took to him the D.R. He “legitimated” Luis—but he still was three weeks short of the magic five post-14 years. As a result, his son was permanently barred from citizenship at birth, though other children born to mothers with much less connection to the U.S. received it with no trouble.

This is the issue in Morales-Santana. If a government policy inside the U.S. made such an arbitrary sex distinction, it couldn’t survive judicial scrutiny for ten seconds. If the principle of equal protection applies to citizenship matters at all, it certainly would seem to apply here.

At first glance, though, Luis’s case seems like an uphill struggle. As recently as 2000, in a case called Nguyen v. Immigration and Naturalization Service, the Court approved a seemingly similar sex-based citizenship distinction. Tuan Nguyen, the petitioner in that case, had been born to a U.S. citizen father in Vietnam. Tuan came to the U.S. as a refugee; abandoned by his mother, he grew up in the U.S. with his biological father.

However, the immigration statutes said that he could not be a birthright citizen unless his father had legally “legitimated” him before his 18th birthday. Tuan’s father had raised him, but hadn’t taken legal steps to recognize him as his son.

In an opinion by Justice Anthony Kennedy, the Court rejected Nguyen’s petition. But, importantly, the Kennedy’s opinion explicitly refused to reaffirm the “plenary power” of Congress. The opinion did not specify whether “deferential” review, or ordinary equal-protection standards, applied. Even under ordinary equal-protection review, this sex discrimination passed muster, Kennedy wrote. The statute treats male citizens differently from female ones, the opinion said, but that difference “substantially” advanced two “important governmental objectives.”

These interests were: “assuring that a biological parent-child relationship exists” and requiring that father-child relationships are also “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”

Biological relationship was easy to tell when the citizen is the mother; the court dryly noted that a mother “is always present at birth,” while a father may not be. “Legitimation” would recognize the blood tie with the father, and would also demonstrate that the father had that “real, everyday tie.”

Unlike in Nguyen, Morales argues, the “physical presence” rules at stake in this case don’t have any relation to those two “important” interests. Remember that Jose Morales had done everything the statute would require of him—by marrying Luis’s mother, he had legally established legal paternity; he had also raised Luis as his legal son in the U.S. Blood and national ties were established.

But none of that does Luis the slightest good—because his father, born in the U.S., lived in the U.S. for a “mere” 18 years and 49 weeks and left it four decades before Luis was born. That “mistake” had no bearing on the relationship between father and son, or between either of them and the United States. The statute seems like a naked discrimination. Female citizens with one years’ residency passed their citizenship at birth; male citizens only did so if they pass a residency requirement that is not only onerous but literally impossible for an 18-year-old father to fulfill.

Morales argues that the distinction is based on the old stereotype that only unwed mothers participate in raising children. The government defends the law on the grounds that, when it was passed in 1952, “most countries considered the mother of a child born out of wedlock to be the child’s only legally recognized parent at birth.”

An amicus brief filed by a group of historians points out the obvious: “many of those laws were informed by impermissible gender-based beliefs about men as fathers, thus violating the equal protection and due process rights of unmarried fathers and their children.”

Current immigration law, by the way, contains a similar sex distinction, requiring five years’ physical presence for unwed fathers, with two over the age of 14; one year, at any point, for the unwed mother. So the case is of more than historical interest.

In order for the government to prevail, the Court must either reaffirm “plenary power” (opening the door for racial or religious distinctions) or hold that this seemingly arbitrary gender discrimination passes equal protection muster.

“Extending deference to Congress to allow it to discriminate in citizenship laws would drill a hole in the heart of the Equal Protection Clause,” argues Martha F. Davis of Northeastern University School of law, who argued Nguyen in front of the Supreme Court.

Regardless of the presidential election result, a true “Muslim ban” seems unlikely (Trump has already said it has “morphed” into “extreme vetting”). But a victory for Luis Morales-Santana would make it even less likely.

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The Nerd’s Dream Guide to the U.S. Constitution

Garrett Epps, The Atlantic — Fri, 12 Aug 2016 10:37:49 -0400

There is something exhilarating about watching a national election pivot on the hinge of a pocket Constitution.

Last month, Khizr Khan, a naturalized American citizen who appeared before the Democratic National Convention with his wife, Ghazala, taunted the Republican presidential nominee Donald Trump by pulling out a well-thumbed pamphlet and asking, “Have you even read the United States Constitution? I will gladly lend you my copy.” The resulting counterattack by the short-tempered nominee seems to have marked a tipping point in the apparent collapse his campaign so far.

Intriguingly, Trump never actually responded that he has read the Constitution. It is apparent from his earlier suggestion that the document contains 12 articles (correct answer: 7) that he probably has not.

As Khan suggested, any American can perform this act of citizenship in a few minutes. And the evidence suggests that many are. Right now, the pocket Constitution is number one on the Amazon list of books about the United States; pocket Constitutions of various editions occupy spots 1 through 5 and 7 through 12 on the “constitution” bestseller list. The American Civil Liberties Union’s pocket volume is now on back order.

People could do worse than follow Mr. Khan’s advice in how to read it, too. In an interview with NPR, Khan was asked to read aloud his favorite passage. He recited Section One of the Fourteenth Amendment, apologizing that “I lose my composure when I read these words.” Quoting the phrase “equal protection of the laws,” he said, “Try to understand the impact of these four, five words in our life.”

It is a good place to start: Section One is the center of the U.S. political system and scheme of individual rights. Reading the Constitution is an important exercise; but knowing how to read it is essential to the work.

In that respect, alas, the publishers of the best-selling pocket Constitution fall short. It’s an outfit called the National Center for Constitutional Studies, a conservative “think-tank” headquartered in Malta, Idaho. Some years ago, I enrolled in an NCCS Constitution “school” to discover what these indefatigable “constitutionalists” were teaching eager Tea Party patriots. The lessons I “learned” were disturbing—here’s the summary I gave at the time:

The Constitution is based on the Law of Moses; Mosaic law was brought to the West by the ancient Anglo-Saxons, who were probably the Ten Lost Tribes of Israel; the Constitution restores the fifth-century kingdom of the Anglo-Saxons. . . Social Security, the Federal Reserve, the Environmental Protection Agency, the Civil Rights Act of 1964, hate crime laws—all flatly violate God’s law. State governments are not required to observe the Bill of Rights; the First Amendment establishes “The Religion of America,” which is “nondenominational” Christianity.

The NCCS pocket Constitution, however, does faithfully reproduce the text. Readers should concentrate on that, ignoring the questionably relevant quotations in the pamphlet from “the Founding Fathers” and the document at the end, in which George Washington apparently asks each of us to sign a “pledge” drawn up by NCCS—a document he never saw.

But texts do not read themselves. If the NCCS is not a proper guide, then what is?

A reader could do worse than start with small books by two very fine historians. Jack Rakove, a masterful writer who has spent 30 years analyzing the quest for “original meaning” of the Constitution, is the editor of The Annotated U.S. Constitution and Declaration of Independence. Although published by a university press, it is fully accessible to ordinary readers. Rakove has his own views, but he is a scrupulously honest scholar, and provides proper context for these two founding documents, without any reference to the Lost Tribes.

Slightly shorter, although no less trustworthy, is The Penguin Guide to the United States Constitution, a similar annotated guide by Richard Beeman. Beeman, a historian at the University of Pennsylvania, is also the author of a brilliant history of the Constitutional Convention, Plain, Honest Men: The Making of the United States Constitution. Of course, none of the “plain honest men” who gathered in Philadelphia thought of their own subjective “intentions” as a source of law; the Constitution became law after a careful process of ratification by popular conventions. Ratification: The People Debate the Constitution, 1787-1788, by the late Pauline Maier, is the first history of that process, inviting and surprising as it outlines the bare-knuckle politics that consumed the nation in the months after Philadelphia.

Reader should be aware—Rakove and Beeman make clear—that the Constitution that governs the U.S. today is not, as the NCCS pamphlet claims, the work of “Delegates of the Constitutional Convention.” That gathering of 55 eminent white men ended its work in 1787, while the work of building the Constitution has gone forward. The “delegates” did not write the Bill of Rights; even less did they write the 17 Amendments that have followed it, remodeling everything from the meaning of citizenship to the election of Senators, the qualifications of voters, and the increasingly limited powers of state governments. For a fine guide to the full context of today’s Constitution, read The Words We Live By: Your Annotated Guide to the Constitution by the scholar Linda R. Monk, which labors to provide inclusive context, including materials on “outsiders” to the Constitution such as Native American people.

Much NCCS-style Constitution-worship views the document as a sort of unchanging, eternal biblical document. In fact, however, much of the exhilaration of truly studying it is seeing how, over more than two centuries, it has renewed itself. The Yale scholar Akhil Amar provides a readable and exhaustive account of these changes in America’s Constitution: A Biography, which will require some determination simply because it is nearly 700 pages long. But it is worth the effort and free of unreadable jargon—and also provides a valuable reference volume. Another such volume, written from a conservative point of view, also sits on my shelf—The Heritage Guide to the Constitution, which includes short articles on all the sections, and other topics, by scholars.

For those who want more background on the Framing and subsequent development, two marvelous online resources are The Founders’ Constitution, an exhaustive compilation of the sources of the original Constitution and Amendments I to XII, and The Congressional Research Service Annotated Constitution, maintained by the Legal Information Institute at Cornell University. A new edition of the Annotated Constitution is in the works, with input from Michael Gerhardt of the University of North Carolina School of Law.

Whichever of the above you read—even if it is only the 7,500-word text of the Constitution itself—for heaven’s sake, do not, repeat do not, read it the way a lawyer would. We lawyers are trained to analyze a butterfly by tearing off its wings; most “constitutional law,” as practiced in front of courts, consists of random fragments ripped out of the text and then applied, without any particular historical context, to sketchy and usually inaccurate “fact” patterns. Even if that mode of analysis is useful in some contexts, it is useless as a civic exercise. Instead, read for the overall scheme, and note that the document itself has a moral arc, which, to remix Martin Luther King Jr.’s phrase, bends fitfully toward justice.

If you’ve been meaning to do this reading for a while, now really is the time to do it. Many people—including me—think the United States is facing at least the possibility of a constitutional extinction-level event with the 2016 presidential election. The more Khizr Khans there are—the more citizens who take seriously their roles as stewards of our fundamental law—the less likely it becomes that the values of due process, equal protection, civic equality, and self-government can be obliterated by the screams of an angry mob.

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Is Trump Guilty of Inciting Violence Against Clinton?

Garrett Epps, The Atlantic — Wed, 10 Aug 2016 16:09:21 -0400

Here is the most positive thing that can be said about the Republican presidential nominee in August of 2016: He probably didn’t commit a federal felony yesterday.

As surely everyone knows, Trump told an audience in Wilmington, North Carolina, that Democratic nominee Hillary Clinton “wants to abolish—essentially abolish the Second Amendment … If she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know.”

In context—watch the video here—it’s clear that this is a coy reference to the possibility of gun violence against either Clinton or potential judicial nominees. Trump and his campaign, in their characteristic style, are attempting to dodge any accountability, while letting the suggestion of violence linger in the air. Their best defense is a feeble one: Trump co-chair Sam Clovis cheerfully told CNN that “When Mr. Trump speaks, it's not as artful as a lot of people might think." Not a killer, just a tongue-tied idiot.

That plough won’t scour. Trump’s is the most direct, consequential call for political violence I can remember since the 1960s. But has he violated the law? That question popped up insistently on Twitter last night as the news of Trump’s speech broke. The answer is: almost certainly not.

Let’s start with the easiest question. Was Trump “inciting” violence against Clinton? In any ordinary-language of the term, the answer is probably yes. He was signaling to the unhinged fringe—a group he has courted with birtherism, Clinton conspiracy theories, libels against American Muslims, and a lot of coy eyelash-batting in the direction of David Duke and other white supremacists. The signal was (to be as generous as possible), “I share your anger and also wonder whether it will be someday be necessary for you to kill your enemies.”

Does that contribute to the possibility of violence? Yes. Does it intentionally encourage those who believe in killing for political aims? Yes.

Does it violate laws against “incitement”? No.

The reason is that, under American law, “incitement” is a narrow term. Until the 1960s, most states in the U.S. had “criminal syndicalism” laws that made it a crime to “advocate”—or even, in some states, merely associate with groups that advocated—political or economic change by violence or revolution. The law was handy for crushing labor groups like the Industrial Workers of the World; the U.S. government used its federal analogue, the Smith Act, to destroy the leadership of the Communist Party.

In 1969, the Supreme Court voided these laws in a case called Brandenburg v. Ohio. The defendant had been convicted of making a speech to a KKK “rally” (attended by 12 Klansmen and a TV crew on a private farm) in which he announced, “We're not a revengent organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.” The Court held that “mere advocacy”—even of violence—cannot be made criminal “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Whatever Trump’s intent in Wilmington, the “imminence” requirement is the bar to incitement charges against Trump. What the Court meant is that the First Amendment requires a showing that the violence was literally about to occur at that very moment. “Kill that person over there right now!” is the template.

By that standard, did Trump “incite” violence against Clinton? No.

What about “fighting words”? That’s a term that gets thrown about but that constitutionally is virtually nonexistent. It means, in essence, speech that proposes an immediate fistfight and is thus not protected by the First Amendment. (A stranger once came up to me on the street and said, “I’m going to knock the crap out of you.” Those are “fighting words”; what Trump said was not.)

More difficult to assess is whether the words are a threat. Federal law (18 U.S.C.A. § 875) makes it an offense to transmit “in interstate or foreign commerce any communication containing … any threat to injure the person of another”; beyond that, a specific statute, 18 U.S.C. § 879, says that anyone who “knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon ... a major candidate for the office of President” is guilty of a felony, punishable by up to five years in prison.

To violate the statutes, however, courts have held that speech must constitute a “true threat.” That term is confusing. It does not require a “threat” to be “true” in the sense that the speaker intends to carry it out and is able to.

A threat must be “true” only in a linguistic sense—that is, it must communicate—and the speaker must at some level understand it to communicate—an actual intention to commit harm to the person threatened. Consider the words of Justice Samuel Alito’s concurrence in a recent “threat” case, Elonis v. United States: “True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation.” An example is a bomb threat called in by kids who want a day off: There’s no bomb, but great harm is done.

A “true threat” doesn’t have to have the form, “I will harm you.” In the late 1990s, an anti-abortion group posted a “Wanted” website containing a list of abortion providers—with the names of murder victims among them “greyed out.” The site didn’t make clear who, if anyone, might kill the surviving doctors; but in context, its message of terror was clear. The Ninth Circuit affirmed that this speech could constitute a threat. In 1985, a disturbed person warned the Secret Service that a shadowy person supposedly named “Mr. Image” was planning to kill Ronald Reagan. There was no plot; the letter writer meant not himself but an imaginary conspiracy by the National Council of Churches. Nonetheless, agents arrested the man. Charges were later dismissed, but the Supreme Court upheld the arrest as reasonable.

The Court has made clear, however, that a “true threat”—especially in the political context—doesn’t arise from sloppy speech or rhetorical excess. In 1966, an 18-year-old African American man named Robert Watts attended a civil-rights demonstration at which he told a small group, “I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” The Supreme Court reversed his conviction, saying that

The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.’ Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

Under the Watts standard, were Trump’s words “vituperative, abusive, and inexact”? Probably. The difference, of course, is that Watts said that he himself would go shoot the president as soon as he got an Army rifle. It’s hard to take that possibility seriously (“Sir! Recruit Watts requests permission to fall out and proceed to seat of government to shoot Commander in Chief, sir!”) Trump didn’t limit his language to himself—he mentioned action by “the Second Amendment people.”

Could that have crossed the line?

Legally, that case would be hard to make. First Amendment law across the board—from the rules of defamation to advocacy of violent revolution—protects speech about politics jealously from government regulation. In New York Times v. Sullivan, the Court wrote “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” A prudent federal judge would, however reluctantly, strike any indictment against Trump under federal threat statutes.

Morally, however, Trump’s is as vile a public statement as I have read since a politician in my Virginia hometown advocated “euthanasia” against Governor Linwood Holton for his support of school desegregation.

The First Amendment protects much vileness, however. Freedom of speech may be a moral good; but speech itself may be free but not be good. If history shows us anything, it shows us that speech can do dreadful harm to individuals and to nations. The decision to tolerate that harm is, as Oliver Wendell Holmes Jr. once wrote, “an experiment, as all life is an experiment.”

To date, on balance, the experiment has served us well. Trump may not be a criminal, but as of Tuesday, he has begun a mortal assault against the utility, indeed, the very concept, of free speech.

And there are three more months to go.

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The Smith v. Obama Case Asks the Courts' Opinion on the War Against ISIS

Garrett Epps, The Atlantic — Thu, 02 Jun 2016 10:21:50 -0400

What is the most important responsibility of Congress?

Is it protecting the security of the country, the integrity of its political system, and the lives of its military personnel by deciding when and how the U.S. should use military force?

What if the president believed a military conflict was essential for national security? And what if Congress apparently agreed with the president?

And what if Congress still wouldn’t act?

That’s the situation in the United States today. Since August of 2014, American military forces have been conducting operations—airstrikes at first, and then ground operations involving U.S. Special Forces and “advisers”—against the Islamic State.

The action is being taken on the president’s authority and the vague claim that it is authorized by the 2001 Authorization for the Use of Military Force, or AUMF, against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”—a date on which ISIL did not exist.

President Obama has repeatedly asked Congress to use its power to declare war to authorize the operation against ISIL. There appears to be no real opposition to the war effort on Capitol Hill. But Congress has not held hearings or a vote of any kind.

The War Powers Resolution of 1973 was passed to govern such a situation. It requires the president to seek congressional approval of military action within 60 days of its commencement. If he does not do so, or if Congress withholds assent, the law says he must withdraw U.S. forces from the conflict.

The War Powers Resolution does not require Congress to vote on a presidential request, but it should. Arguably, dodging an AUMF vote is a far worse sin against the Constitution than dodging a Supreme Court nomination. If Congress approved the effort, the law would be satisfied; if Congress voted against it, then the president would either have to withdraw U.S. forces or explain why he thinks he has constitutional authority to act without authorization. But if Congress simply won’t say “yes” or “no,” the military effort exists in a limbo—what the late Justice Robert H. Jackson once called the “zone of twilight in which [the president] and Congress may have concurrent authority, or in which its distribution is uncertain.” Because the division of constitutional power may be unclear, Jackson wrote, “congressional inertia, indifference, or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”

That brings us to the case Smith v. Obama, filed in the D.C. District Court on May 4. The plaintiff in Smith is the U.S. Army captain Nathan Smith. Smith, who is based in Kuwait, has been assigned to “Operation Inherent Resolve,” the American military’s effort to eliminate the Islamic State.

It’s a mission almost everyone in the federal government supports, including Smith. But his orders put him in a difficult place. He believes he is being required to violate his oath to “support and defend the Constitution of the United States.”

Smith’s lawsuit asks the court to “declare that the war against ISIS … violates the War Powers Resolution because the Congress has not declared war or given the president specific statutory authorization to fight the war.” If the court finds in Smith’s favor, the lawsuit argues, and Congress still fails to authorize the war, U.S. military forces will have to disengage from its efforts against ISIS in Iraq and Syria. Further, because Obama has not produced a formal opinion from the Justice Department’s Office of Legal Counsel, Smith argues, the president has violated Article II, which requires that he “take care that the laws be faithfully executed.”

This case seems to meet nearly every definition of a “political question” laid out in the landmark case Baker v. Carr, in which Justice William Brennan for the first time explained why some highly “political” cases can be heard by federal courts and others cannot. A “political question” is not a partisan question; it is a dispute courts simply cannot resolve because it involves deep questions of national policy that have no clear legal answer. According to Baker, a political question involves, among other things,

a textually demonstrable constitutional commitment of the issue to a coordinate political department; . . . or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Textual commitment to Congress? Check. Need for policy determination? Check. Danger of lack of respect for other branches? Check. Need to stand by the political decision to deploy troops? Check. Possibility of embarrassment?

Uh, yeah.

Even a federal district judge might hesitate before ordering the president to break off hostilities against a foreign enemy and withdraw forces from the field. It would be an even more daunting leap to issue such an order on the grounds that the president has not consulted (or revealed discussions with) one of his own advisers, whose existence is not even contemplated by the Constitution. If a president believes in good faith that his or her course of action is legal, it’s hard to see how failure to consult a specific subordinate can violate the Constitution.

One lawyer consulting with Smith’s team on the case is Yale’s Bruce Ackerman, a scholar whose summary of the argument for a case like this one in The Atlantic in 2015 led Smith to file his suit. In an email exchange, Ackerman defended this case against the charge that it seeks inter-branch meddling:

The Constitution and the War Powers Resolution commits America to peace—unless the President can organize the support of Congress, and the American People, for war. This raises very different separation of powers issues from those generated in other areas—political checks-and-balances are much more powerful in dealing with federalism issues, as in the Texas case, or the judicial battles over the administration of Obamacare. In contrast, the constitutional commitment to peace can be easily undermined by unilateral presidential war making—as Richard Nixon showed during the closing months of the Vietnam War. In enacting the War Powers Resolution, Congress itself tried to prevent future presidents from undermining the constitutional commitment to peace—and provided judicially administrable rules for the courts to use when serving as the ultimate safeguard of this deeply rooted principle.

The argument against the current state of affairs is a strong one. The argument that there are “rules for the courts to use,” for better or worse, is less so. A court decision stating that the current military operation is unlawful would raise unpredictable legal issues. A court order to the president on his use of military forces, however coyly phrased, would be at best unenforceable. A president who believes his conduct is lawful and the national interest is at stake might very well—and arguably should—refuse to comply with such an order.

What then?

To understand the hazards of this case, imagine for a moment that the plaintiff added a count seeking an order not to Obama but to Congress—requiring the body to debate, and either accept or reject, the president’s request for an AUMF. Ackerman responded, quite correctly, that a U.S. court couldn’t do that:

If we had a system of abstract review, as in Germany or France or elsewhere, there are standard techniques of calling parliament to account if its acts (or failure to act) offend fundamental constitutional principles. But for better and for worse (it's really quite a complicated balance on both sides of the ledger), the American system, since John Marshall, has insisted on concrete cases and controversies. Nobody has standing to urge the Court to declare Congress in default.

It’s not clear to me that Smith’s request for relief is any more “concrete” than court’s theoretical order to Congress would be. Arguably, the only “concrete” resolution would be a court order that Smith himself need not participate in the war effort—the war effort he wants to take part in. The relief Smith and other soldiers are actually seeking—and one they richly deserve—would be a decision by their political leaders to treat the Constitution, the nation’s commitment to military force, and the lives of American personnel as a serious matters, worthy of sustained attention.

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'Deferred Action' for Immigrants Goes to the Supreme Court

Garrett Epps, The Atlantic — Mon, 18 Apr 2016 11:00:00 -0400

Today, the Supreme Court will hear oral arguments in United States v. Texas, the challenge to the Obama administration’s “deferred action” immigration plan. The Court could decide this case in a number of ways, some very wrong and some less so. But there’s only one really right way to handle it: Grab this stinker by the collar, frog-march it out of the courtroom, and give it a good swift kick down the Court’s majestic front steps.

That’s because this case should never have been heard; this judgment should never have been entered; this injunction should never have been issued. The human and policy implications of the case are, of course, huge. But it also has the potential to not-so-subtly skew the workings of the nation’s federal system, further enfeebling Congress and empowering federal judges to play philosopher king at the expense of self-government.

The case was brought by the state of Texas, which objects to the administration’s two programs—announced in 2014—to regularize deportation procedures. As many as 11 million people in the United States are subject to deportation; Congress, however, provides funding to remove only about 400,000—or less than 4 percent—of them a year. As a result, for many years the Department of Homeland Security’s Immigration and Customs Enforcement (formerly the Immigration and Naturalization Service) has focused on undocumented aliens who have criminal records or who otherwise pose a threat to the United States. In 2014, the homeland-security secretary spelled this policy out in two “guidance” memos, announcing that some undocumented people who are not high-priority targets would become eligible for “deferred action.” This meant members of those benign groups could come forward and receive a three-year authorization to live and work legally in the United States. The new policy didn’t provide “legalization” or a “path to citizenship,” much less “amnesty”; indeed, “deferred action,” which may be revoked at any time, isn’t even binding temporary protection against being deported. But those who qualified and registered for the programs would have a chance to live normal lives, work, and pay taxes. The hope was that within three years, the political system would have begun to function, producing comprehensive reform.

Texas didn’t like the new program. Fair enough. That’s why the Framers gave each state representation in Congress and the Senate. But Texas Governor Greg Abbott asked a federal district court in Brownsville, Texas, to halt the entire program because, he said, it was not authorized under the state’s immigration statutes.

Here’s where the problem sets in. By every rule of federal jurisdiction I know, the case should have been kicked right away. That’s because the state of Texas lacks what lawyers call “standing to sue”—a constitutional requirement that anyone invoking a federal court’s help must have an “injury in fact.” As an individual, I can’t sue the federal government even if I think the new “deferred action” program is illegal; I’d be laughed out of court. Such a suit would represent a “generalized grievance,” and under Article III of the Constitution, it wouldn’t be a “case or controversy.” If I have a beef with the policy, I can go to Congress to try to get it stopped, but I can’t ask a judge to stop it for me.

“Standing” applies to states as well as to people. Consider the ill-fated lawsuit by former Virginia Attorney General Ken Cuccinelli against the Affordable Care Act. During the debate over the ACA, the Virginia legislature passed a statute saying no citizen of Virginia could be subject to an individual insurance mandate. Cuccinelli used that statute to claim an “injury” to Virginia—the ACA imposed such a mandate even though Virginia law said there couldn’t be one. The Fourth Circuit bought that argument a ticket out of town: “[I]f we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court,” the court ruled.

States sometimes do have a real injury, of course. Massachusetts did have standing, according to the Supreme Court, to challenge federal refusal to regulate greenhouse gases. That’s because it is a coastal state, the Court said. Because of climate change, “rising seas have already begun to swallow Massachusetts’ coastal land.” This was “a particularized injury in its capacity as a landowner.”

Texas had to show, in essence, that it has some particular skin in the game, some harm caused by the policy other than “we don’t like it.” Creatively enough, it claimed that it was “injured” by its own laws. Texas allows “lawfully present” aliens to apply for driver’s licenses. Processing these applications costs money—not much, but some. So Texas will now have to process more drivers’ licenses. Hey-presto! Injury!

This claim of injury is a bit like a man suing the city government for building a sidewalk in his neighborhood. The plaintiff might argue that he likes to give expensive candy bars to all trick-or-treaters who ring his doorbell at Halloween. Since his house will be easier to get to, he will now have to shell out for more expensive candy. That plough, as Abraham Lincoln once said, won’t scour.

Here’s the real dispute: Texas and the other state plaintiffs think the programs are a bad idea. Texas and the other state plaintiffs think they have too many undocumented people within their borders. Texas and the other state plaintiffs wish the federal government would deport more people.

These are serious objections. The Constitution provides a serious remedy for them. It is called politics. Texas’s government can and does communicate its objections to the federal government directly. The governor can speak out and bring political pressure on the administration to change the programs. The state’s congressional delegation can introduce legislation to upend them.

But what none of them should be able to do is dress up a classic political fight as an Article III case. This is not an argument that the policy can never be challenged in court. In an amicus brief in this case, former Solicitor General Walter Dellinger points out that Texas can simply refuse to give driver’s licenses to “deferred action” recipients. Such a recipient could sue the state. Now the state can counterclaim that the policy is illegal. That’s a case.

The ill effects of a victory for Texas would transcend the topic of immigration. Expanding state standing in this way would bring policy disputes over dozens of federal policies—statutes, regulations, and policy guidance—in front of courts when, under the Article III, they should not be there. Remember, too, that a conservative lower-court judge recently decided that the House of Representatives, having failed to repeal the ACA, can now sue in court to defund it. We can expect Congress to run into court any time it doesn’t like what the executive is up to. It’s an unprecedented and dangerous legal development.

In February, the Supreme Court issued an unprecedented stay of the administration’s entire climate-change policy. Last month, the justices formally announced that some of them want to rewrite the ACA’s contraceptive mandate. These are ill omens for a true system of self-government. The Court can protect our system against further damage by telling Texas to pay for its own damn candy.

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The U.S. Supreme Court and American Empire

Garrett Epps, The Atlantic — Wed, 30 Dec 2015 08:00:00 -0500

The dawn of this century has marked the rise of the American periphery. To understand what I mean, consider presidential politics. In the last century, American voters preferred their presidents to be firmly rooted in the heartland—Plains, Georgia (Jimmy Carter), Tampico, Illinois (Ronald Reagan), Hope, Arkansas (Bill Clinton).

How things have changed! This year, one candidate, Ted Cruz, is the Canadian-born son of a U.S. citizen mother and a (then) non-citizen father. In 2008, the nation elected the Hawaii-born son of a citizen mother and a non-citizen father—a president who was partly raised in Indonesia. He defeated a Republican candidate born in the Panama Canal Zone, whose ticket-mate was the governor of Alaska; for re-election, he defeated a Republican presidential candidate whose father was born in Mexico.

We are in what academics might call a “post-colonial” phase. It’s not all about the heartland any more.

The U.S. Supreme Court, meanwhile, is still a pretty metropolitan bunch: its members come from New York (only Staten Island doesn’t have its own justice), California (2), and New Jersey (1). Chief Justice John Roberts (Indiana) and Justice Clarence Thomas (Georgia) have “salt of the earth” pedigrees—but both of them reached their posts by work performed entirely inside the Beltway.

On the other hand, Justice Sonia Sotomayor, though Bronx-born, is the child of Puerto Rico-born parents. She wrote her Princeton thesis on Luis Muñoz Marin, political architect of modern Puerto Rico. She, at least, must understand that what today is called “the United States of America” is not the neat construct taught in civics class—federal structure, three-branch government, happy citizens under what poet W.H. Auden called “liberty’s masterful shadow.” In the post-colonial age, American government, and citizenship, are more complicated than that.

The mismatch between constitutional theory and national reality began early. Thomas Jefferson believed that the Constitution did not permit the nation to acquire new territory. Faced with the chance to buy Louisiana, however, he bit his tongue. Since then, the Constitution’s language hasn’t changed, but years of conquest, purchase, and outright theft have given the nation two states, Alaska and Hawaii, physically separated and culturally distinct from the lower 48; hundreds of Indian reservations, Rancherias, Pueblos, and Native Villages, which are separated “dependent nations” incorporated through treaties; a self-governing “Commonwealth” called Puerto Rico; and more than a dozen other “insular areas” such as American Samoa, Guam, and the U.S. Virgin Islands.

Though most news coverage concentrates on the big metropolitan cases—religious freedom, labor unions, abortion, the Affordable Care Act—the outposts of empire have a place on this year’s docket. Alaska’s unique status will come up in Sturgeon v. Frost, the “wandering hovercraft” case, which challenges federal management of the vast majority of the state’s land. Indians have already appeared: in Dollar General Corporation v. Mississippi Band of Choctaw Indians,argued in December, the Court must decide whether Indian tribal courts can hear lawsuits against corporations for torts they allegedly commit on the reservation.

Tribes, and tribal courts, will be back at 1 First St NW later this term. Nebraska v. Parker is a challenge to the Omaha Tribe’s right to tax a liquor store located on land ceded to the tribe by treaty in 1854 but sold by it to private buyers, under a statute passed by Congress, beginning in 1882. Tribal courts are the issue inUnited States v. Bryant. In 2011, Michael Bryant, an enrolled member of the Northern Cheyenne tribe of southeastern Montana, was indicted in federal court on two counts of domestic assault, and also charged as a “habitual offender.” The “habitual offender” status—which can raise the sentence to as much as 10 years in prison—derived from multiple prior misdemeanor domestic-violence convictions in Northern Cheyenne Tribal Court. If those cases had been heard in state or federal court, Bryant would have been entitled to appointed counsel. But the Sixth Amendment doesn’t apply to tribal courts, and the Indian Civil Rights Act does not require tribes to supply counsel for offenses that carry less than a year in jail. Bryant is challenging the indictment on Sixth Amendment grounds.

Tribal sovereignty advocates are alarmed—an amicus brief by the National Congress of American Indians says that Congress has authorized tribal courts to conduct these trials without counsel, and that a victory for Bryant would “seriously impede” efforts to control domestic violence in Indian country—which is endemic.

The Court is relentlessly whittling away at tribal-court jurisdiction; a victory for Bryant would reduce their power to try members of the tribe, even with congressional approval. During the Dollar General argument, Justice Anthony Kennedy grew visibly perturbed on the bench at the idea that “extra-constitutional entities” could try American corporations. Will that discomfort lead him to hobble the ability of tribes to try even their own members? It’s one thing to throw a protective arm over Dollar General; another thing to shield a multiple-count abuser.

Speaking of “sovereignty,” is Puerto Rico a “separate sovereign” from the United States, or just a subdivision, like a territorial government? The U.S. acquired Puerto Rico from Spain after the Spanish-American War. At first it was governed directly from Washington, but in 1950 Congress gave the people permission to adopt their own constitution, with elected leaders and a separate court system.

Two criminal defendants were convicted in Puerto Rico of federal gun charges. After their federal trial, the Commonwealth brought charges in its own courts for the same offenses; the defendants moved to dismiss, claiming the prosecution violated the Fifth Amendment rule that no person “shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” At least since 1922, the federal courts have applied the “dual sovereignty” doctrine. Because the federal government and a state government are two different “sovereigns,” the reasoning goes, each may try a defendant in its own courts without violating the double-jeopardy rule.

But Puerto Rico is not one of the “several states”; the two defendants appealed, and the Puerto Rico Supreme Court earlier this year decided that Puerto Rico isnot a separate sovereign from the United States, meaning the defendants could not be retried. The Commonwealth is looking to the Court to reinstate the prosecution. The result will be a paradox either way; if Puerto Rico loses, it will be because its own courts denied its sovereignty; if it wins, it will be because it used the court of a “foreign sovereign” to set aside the decision of its own court.

Down the road, the Court may face the paradoxes of the periphery even more squarely. Last June, a panel of the D.C. Circuit held that Americans born in American Samoa are not U.S. citizens by birth—despite the Fourteenth Amendment’s guarantee that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”

By statute, a person born in Samoa is a “non-citizen national,” whatever that means. The plaintiffs demanded recognition as citizens. They were opposed not just by the United States, but also by the Samoan government. That government fears the extension of citizenship to Samoa; it might threaten the territory’s laws with the Equal Protection Clause, which might be used to cut back the territory’s laws limiting sale of communal and family land to non-Samoans. This week, the plaintiffs announced that former Solicitor General Ted Olson would be representing them in a petition to the U.S. Supreme Court.

And behind the Samoa case is Hawaii, where the state government, with federal support, is trying to restore to native people some shred of the nation they lost when the independent kingdom was annexed by the U.S. in 1898. The plan is to create a “government” elected by descendants of the native people to advocate for their interests—a new Indian tribe, in effect. When a vote was held for delegates to a constitutional convention, however, opponents of the plan convinced Justice Kennedy to block counting of the votes “pending further order” from him or the Court. (The election has now been cancelled.)

The American Constitution was written for a coastal republic of 13 states and ran into trouble soon after. It now governs, awkwardly, an empire. The metropolitan figures on the Court can decide issues for imperial subjects without much knowledge, or even concern, over what their decisions do to life on the periphery. After 225 years, that paradox remains unresolved.

(Image via Joseph Sohm/Shutterstock.com)

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When the House of Representatives Can Sue the President

Garrett Epps, The Atlantic — Mon, 14 Sep 2015 16:48:43 -0400

In the town where I grew up, there was a gentleman who was known for his gruff demeanor. One day, it was said, he was sitting at his desk when a neighbor called him. “Your house is on fire!” he said.

“Well, is it bothering you?” the old man answered, and hung up the phone.

I tell this story to my students to illustrate the constitutional law principle of “standing to sue.” “Standing” made the news last week when Judge Rosemary Collyer of the U.S. District Court for the District of Columbia ruled that the House of Representatives, as a body, has “standing” to challenge the Obama administration’s method of funding part of the Affordable Care Act. Judge Collyer did not decide that the administration has done anything wrong. All her opinion said was that the House is actually claiming to be on fire, and actually claiming that Obama set the blaze.

Why do federal courts use the “house on fire” principle? Because, under the Constitution, federal courts are courts of “limited jurisdiction.” They can’t decide issues—even really, really important ones—just because people really, really want them to. The language of Article III limits federal courts to deciding “cases or controversies,” meaning real disputes where each party has something real—not just a difference of opinion about the law—in the game.

In House of Representatives v. Burwell, the House claims that the administration’s funding of one section of the ACA violates Congress’s famous “power of the purse.” The Constitution not only grants to Congress the power to tax and spendto “pay the debts and provide for the common defense and general welfare;” it adds that only Congress can authorize these payments (Article I Section 9 cl. 7: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law”).

Neither side disputes the basic rules. The administration does not claim authority to spend without Congressional approval; it argues that Congress actually did make an appropriation; the House says that Congress did no such thing. There’s no easy answer to that question, because appropriating money isn’t a matter of magic words; if Congress passing a statute directing the executive to make certain expenditures, the executive may be required to fund them out of “lump-sum” appropriations (the entire sum approved for a given cabinet department) with no need for a special line item. Collyer will get to the issue of whose statutory reading is right later; first she had to decide that the House really could sue.

The idea of “legislative standing”—that a member of a legislative body, or the legislative body itself can sue the executive when it does something the legislature doesn’t like—has bounced around the federal courts for nearly a century. The claims often fall apart on the precise question of injury. If the executive simply ignores the “no appropriation” clause, then the House has a complete remedy—impeachment of the executive official responsible (up to and including the President); such a violation could also later be prosecuted under a federal statute called the Anti-Deficiency Act. But mere misinterpretation or misapplication of the law, the argument goes, doesn’t deprive any member of the House of his or her authority, or strip the body of its ability to enact law and appropriations. The legislature can amend the statute to remove any ambiguity.

The Court once held that a group of state legislators had standing to sue their secretary of state for (they claimed) wrongly certifying the legislature as having approved a constitutional amendment. Their claim was that this action nullified their votes. (It was a hollow victory: The Court immediately dismissed the case as a “political question.”) It has also held that a group of members of Congress didnot have standing to challenge a law providing the president a line-item veto; the law took power from the House, Chief Justice William Rehnquist wrote, but did not injure these members in particular: “In the vote on the Line Item Veto Act, their votes were given full effect. They simply lost that vote.”

Last term, the Court upheld standing for the Arizona Legislature in its suit against the independent commission set up by voters to draw electoral districts. The initiative would “would ‘completely nullif[y]’ any vote by the Legislature” to draw districts, the Court reasoned, thus injuring the entire body, not just some members. (Another hollow victory; the Court then held that the voters had the power to evict the legislature from redistricting.)

But for a court to intervene in state-government disputes over the Constitution is one thing; the Constitution’s Supremacy Clause suggests that any branch of state government is liable to federal jurisdiction. As far as my research shows, however, this is the first time in American history that a judge has found that one of the Houses of Congress has standing to sue the president over appropriations.

Peter Shane of Ohio State University, a separation-of-powers guru, notes the difference: “Relying on theories of legislative standing that supported past federal lawsuits by state legislators ignores the separation of powers considerations that undergird standing law.” This is a fight between the other two co-equal branches; there is no Supremacy Clause to eliminate doubt about the Court’s authority.

It’s a portentous line to cross, because, as Vanderbilt Law Professor James F. Blumstein said in an interview, “there are a lot of risks in allowing the House to have institutional standing.” Deciding this question will involve the courts in the poisonous partisan atmosphere of the capital in 2015. On the other hand, Blumstein notes, “the strongest possible case [for standing] is in the appropriations context.” It is one thing to tell the House and the President to fight it out politically, Blumstein notes, but “when the House goes to war it does it with the power of the purse.” If Congress can’t stop appropriations, then that power is negated. A claim that the executive has usurped that power may really be a claim that the House is on fire.

As originally filed by the House, the claim against the administration had two main parts. In the first, the House argued that the administration had violated the Constitution by spending non-appropriated money; in the second, it claimed the administration was misapplying the law by delaying the employer mandate and making other decisions about how to roll out the ACA program. Collyer dismissed the second set of claims because they only “concern the implementation, interpretation, or execution of federal statutory law.”

But as Shane notes, even in the claim that remains, the real issue is not whether Obama has authority to spend money without authorization; it is whether the statute, properly read, authorized the spending. “I don't think [Judge Collyer’s] distinction holds up,” he said. “This is a case about the proper interpretation of the scope of an appropriation statute.”

Blumstein says that the decision “makes me nervous because you start down a path and don’t know where it’s going. But the courts have often said that the fact that you don’t want to go too far down a path doesn’t mean you don’t start down it.”

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What Does the Constitution Say About the War on ISIS?

Garrett Epps, The Atlantic — Mon, 24 Aug 2015 09:58:36 -0400

“To see what is in front of one’s nose needs a constant struggle,” George Orwell wrote in 1946. Here’s a corollary: The real scandal in any given system is usually the thing there’s no argument about.

We hear a lot of discussion about executive power and the military these days. The Internet is flooded with discussions of whether President Obama has the authority to send troops to Texas. The true constitutional crisis, however, is not Jade Helm, it’s Inherent Resolve, the so-called war against the Islamic State. I’m not hearing much about that

Almost exactly two years ago, President Obama proclaimed that the national interest required intervention in Syria to punish the Assad government for using chemical weapons against its own people—not only a war crime, but, Obama said, a “red line” for the international community. Shortly afterwards, though, Obama unexpectedly announced that he would first seek congressional authorization. “After careful deliberation, I have decided that the United States should take military action against Syrian regime targets,” he said on August 31, 2013. “Having made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I’m also mindful that I’m the President of the world’s oldest constitutional democracy … And that’s why I’ve made a second decision: I will seek authorization for the use of force from the American people’s representatives in Congress.”

It was an unusual moment in American history: a president pausing to acknowledge that Congress’s war power was not an obstacle but an asset to a democratic system. Obama knew very well that, if he sought an authorization vote, he might lose. (If he had lost, it would, as near as I can tell, have been the first time since the Wilson administration that Congress denied a president’s request for prior authority to use force.)

As it happened, the need for a vote never arose; Russian diplomatic intervention produced a genuine settlement to the chemical-weapons problem. But flash forward to today. For the past year, the United States has been in a much wider conflict with the non-state that calls itself the Islamic State. This military operation dwarfs the proposed Syria bombing. We have put together a rickety, complex, and partly secret “alliance” with a number of seemingly incompatible players in the region, ranging from Britain and France to Turkey, Jordan, Saudi Arabia, and, under cover, at least the tacit cooperation of Iran and even Syria. We are training “moderate” Syrian rebels and our troops are advising and training the Iraqi Army. The operation has spread from Iraq to Syria and perhaps now Egypt. It is taking place amidst—and arguably exacerbating—a refugee crisis that is engulfing not just the region but the Western European countries. And General Raymond Odierno, who retired last week as the Army chief of staff, said on his way out that “if we find in the next several months that we aren’t making progress, we should absolutely consider embedding some soldiers (in Iraq).”

A spreading conflict, regional instability, pressure for deepening involvement—and no end ahead that I can see. I am an authority on the Middle East to the extent Donald Trump is an expert on men’s hairstyles. We may have a clear definition of “victory” and a smart path toward it. But if I don’t know that plan, it’s really not my fault. The government hasn’t explained itself to me and the rest of the country; and for that reason, I can’t hold anybody accountable for what goes right, or wrong, in the months ahead.

There is a way that the government could explain itself; indeed, the government is required to do that by Article I of the Constitution, which assigns to Congress the power to “declare war.” It’s true that nations don’t “declare war” anymore; but the grant of power in that clause isn’t a formality, an empty box to be checked off. Read the words in context with the subsequent clauses—Congress has the power to fund or defund the military and to set the rules “for the government and regulation of the land and naval forces.”

In other words, the military belongs to Congress, and through them to the people. When the President wants to borrow it, he has to ask for permission and explain why.

Obviously there are exceptions; when an emergency occurs (what Madison called a “sudden attack,” but also an emergent threat to Americans or American interests abroad), the president can respond first and ask for permission later. But the “war” on the Islamic State isn’t like that at all; it was a policy decision carefully arrived at. The Islamic State is a frightening enemy; but it was not immediately menacing the U.S.

This war is an ongoing violation of the Constitution, one of the most severe of the 21st century. But it is a violation in which both parties are happy to collaborate. The administration claims it already has authority for the intervention, in the Authorization for the Use of Military Force passed in 2001, which gave the president authority to attack “nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” That enemy was al-Qaeda; now, administration officials say, the Islamic State is (as one anonymously put it) “the true inheritor of Usama bin Laden’s legacy.” In other words, the Islamic State is the cow with the crumpled horn, and if you follow the chain back far enough, you eventually get to the House that Jack Built. That chain may be faulty or even fanciful; but this analysis at least complies with the forms.

The administration has requested specific authorization for the effort to combat the Islamic State, submitting a complex draft resolution that authorizes the president to use force against the Islamic State and “associated forces”—but that also forbids the use of U.S. ground troops and requires reauthorization after three years.

The draft is plainly aimed at preventing the war from spreading out of control—and, at least in part, at limiting the options of Obama’s successor. For this reason among others, the Republican leadership has balked at passing it, preferring something far more open ended and sweeping. Senator Marco Rubio, for example, reacted to the draft this way: “I would say that there is a pretty simple authorization he could ask for and it would read one sentence: ‘We authorize the president to defeat and destroy ISIL.’ Period.” Senator Lindsey Graham said the limitations would “harm the war effort.” Both of them imagine they may be using a future authorization, and want it to be as wide as possible. But to Obama, an over-broad resolution would be the nightmare of permanent war that he has tried to escape for the past six years.

Some Democrats, meanwhile, believe that even Obama’s language is too broad. So we have stalemate—a stalemate the administration can live with. It has its claim of authority already in place, and it’s unwilling to rock the military boat while a vote is pending on the Iran nuclear deal.

The scandal in this is that almost nobody is really working to resolve the impasse. Senators Timothy Kaine of Virginia, a Democrat, and Jeff Flake of Arizona, a Republican, have submitted a draft which would provide limited authorization, but their colleagues aren’t beating down their doors to cosponsor the bill. Kaine recently told The Hill that the Senate “has hardly had more than 90 minutes of discussion about this” since the Obama draft arrived.

The administration has at least done the minimum. And if the administration isn’t pushing, it’s at least in part because this Congress has demonstrated that it will discard settled norms in foreign policy—witness the genuinely shocking attempt to sabotage the Iran deal by writing to the Iranian leadership while negotiations were still pending. Right now, that deal is the administration’s top priority.

Congress is abdicating an important role. Congress always prefers to remain mum about a war until it sees whether it’s going well, but the Constitution doesn’t have a “wait for the polls” clause.

But this war is already too wide to be proceed any further without a serious discussion of the aims and dangers of the effort. American soldiers, whether they are “advisers” or “embeds” or anything else, are at risk, and beyond that, international stability is at stake. There are institutional reasons why the two branches are content to make war-and-peace decisions in silence. But we the people don’t have to accept that. We can insist that Congress take this matter up, and we can also insist that they treat this life-and-death issue as if they were grown-ups.

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The End of Public-Employee Unions?

Garrett Epps, The Atlantic — Fri, 20 Feb 2015 15:42:36 -0500

Constitutional scholars sometimes like to commend courts for what they call “the passive virtues”—a reluctance to become involved in constitutional dispute, a reticence to announce new rules, a preference for standing by earlier decisions (“stare decisis”).

Judges, too, like to cite what they call “the canon of constitutional avoidance,” a set of rules designed to avoid unnecessary constitutional decisions. In Federalist 78, Alexander Hamilton promised that the new union’s courts would have “have neither force nor will, but merely judgment.”

The truth is that since at least Marbury v. Madison, Courts and Justices have hinted, signaled, begged, and reached out to litigants to bring them issues where one or more justice thinks the law needs to change. On the current Court, few of the Justices have signaled quite as vigorously as Justice Samuel Alito. Alito, a man of firm likes and dislikes, has twice questioned the constitutionality of public-employee contracts. Neither case, however, presented the chance to invalidate them.

Now his moment may have come. In response to Alito’s hints, the issue has landed squarely in the Court’s inbox in the form of a petition for review in a suit against the California Teachers Association. If Alito gets his desired result, it will deal a long-lasting blow to union power—and, perhaps by coincidence, the Democratic Party.

Here’s the issue: Even in union states, public employees cannot be required to join a union. Such a requirement, the Court has said, would violate their First Amendment rights, because that would be the government requiring them to speak and associate against their will. However, state governments can sign agreements with unions designating the union as the official bargaining agent for all employees, members or not. The union then must represent both members and non-members—and representation costs money, in the form of lawyers, economists, researchers, and so forth. Non-members are thus potentially “free riders” who get a service paid for by their fellow workers.

In response, a compromise developed called the “agency-fee” or “fair-share” payment. Requiring objectors to pay for political activities or lobbying would be “compelled political speech,” and violate the First Amendment. However, under the “fair share” system, non-members are charged a fee that excludes these political activities and is designated to cover only the chargeable costs of actual representation—negotiating contracts, administering benefit programs, and helping employees with grievances.

The “fair share” fee is Alito’s current target. In a 1977 case called Abood v. Detroit Board of Education, the Burger Court said the fees do not violate the First Amendment: “Public employees are not basically different from private employees,” the Court said. “[O]n the whole, they have the same sort of skills, the same needs, and seek the same advantages.” The subjects of collective bargaining are the same in either case. Wages and working conditions in the public sector have a political quality, but in their essence were more like the issues that private employers and their workers must negotiate. A state could decide that “exclusive representation” would make for a more orderly workplace; it could also decide to disallow “free riders.” Neither decision violated the First Amendment. “A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint,” the Court said. “Besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private orally or in writing.”

Abood has become the basis for scores of public-employee contracts, and the Court has reaffirmed it at least four times over the past 30 years. But in 2011, a group of service workers in California challenged a union “special assessment” designed to fund an emergency campaign against certain anti-union measures proposed by then-Governor Arnold Schwarzenegger. The case was decided within the Abood framework; but in his majority opinion, Alito signaled his dislike of the entire line of cases. “[F]ree-rider arguments ... are generally insufficient to overcome First Amendment objections,” he wrote. Agency fee agreements thus represent a First Amendment “anomaly—one that we have found to be justified by the interest in furthering ‘labor peace.’ But it is an anomaly nevertheless.”

Anti-union groups hastened to explore this possible opening, and in the 2014 case of Harris v. Quinn, the Court faced a new challenge to “fair-share” payments by a group of home-health workers funded by a federal-state program. Though the workers were hired and supervised by the clients whose homes they worked in, the Illinois legislature voted to allow them to vote for a bargaining agent, and they chose the Service Employees International Union. Plaintiffs objected to the fees, and asked the Court to overturn Abood once and for all. In the end, however, the majority chose not to overturn Abood; instead, it reasoned that the home-health care workers were not “full-fledged” state employees, and thus the state had no need for “labor peace,” as it might at a school or a government office.

But beyond that, Alito’s majority opinion suggested that a majority was sick and tired of this Abood nonsense, and might be grateful if someone—anyone—would bring them a case that would drive a stake through its heart. The essence of the argument is that all expenses of public-employee bargaining are “political,” because public-employee benefits, salaries, and pensions are paid for by taxpayers. Thus there is no “ordinary” collective bargaining, and financing any union dealings with government—even, say, a message saying, “Our union member X was discharged in violation of the contract”—is forcing objectors to pay for “ideological speech.”

In a sharp dissent, Justice Elena Kagan warned that “[t]he Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.”

Nonetheless, a hopeful anti-union group—the Center for Individual Rights, represented by right-wing powerhouse lawyer Michael Carvin—is pressing another opportunity upon the Court. “This case is an excellent vehicle for reconsidering Abood,” the cert petition notes; indeed so, because public-school teachers are unquestionably “full-fledged” state employees, and the petitioners can’t win if Abood is good law.

This issue has an overwhelmingly partisan valence. For good or ill, public-employee unions are part of the base of the Democratic Party, and Justice Alito has made very clear that he sees the “fair-share” issue through a partisan lens. (At oral argument in Harris, he interrupted the Solicitor General’s argument to suggest that what was really going on here was a crude Democratic power play: “I thought the situation was that Governor Blagojevich got a huge campaign contribution from the union and virtually, as soon as he got into office, he took out his pen and signed an executive order that had the effect of putting—what was it, $3.6 million into the union coffers?”) An end to fair-share payments will mean a reduction in the strength of the unions, both in collective bargaining and as political actors. Many present members will continue to join the union even without the “fair share” payments. As new workers enter the workforce, though, many will make a cold judgment: Why should I pay the union to do something for me it’s obligated to do anyway? Alito’s opinion in Harris suggested that if unions are so all-fired great, employees will pay without being required to; Kagan tartly asked, “Does the majority think that public employees are immune from basic principles of economics?” If those laws apply, union membership will drop.

The Roberts Court does not always reach conservative results; but when the two parties have dogs in a fight, the majority finds itself mightily tempted to find that the GOP’s preferred outcome is also the law. Overturning Abood would, as Kagan noted, be a radical step. The temptation must be great, and even if the Court declines this chance, others will come.

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Imperfect Union: The Constitution Didn't Foresee Divided Government

Garrett Epps, The Atlantic — Tue, 18 Nov 2014 13:00:00 -0500

“The president is completely ignoring the will of the American voters, who turned out on Election Day and overwhelmingly elected people who wanted to change the direction of the country,” Senator John Barrasso of Wyoming, chairman of the Senate Republican Policy Committee, complained Thursday to The New York Times .

Barrasso is right. President Obama is ignoring “the will” of those who turned out to vote this month. In a different system, he would have already moved out of the White House, replaced by a leader chosen by the Republican majorities in Congress. (For that matter, he would have been gone after his party took, in his words, a “shellacking” in 2010.)

Instead, however, he is president for two more years. When the voters were directly asked their “will” on his tenure two years ago, they handed him a title deed to the White House good, under our Constitution, until January 2017. With that in hand, he has made clear that he plans to go forward with executive actions to further his agenda.

Already, since the election, he has signed an agreement with China setting more strenuous goals for reducing carbon emissions. He has promised to issue soon an executive order providing broader protections against deportation for undocumented immigrants—in effect using executive authority to impose a limited form of the comprehensive immigration reform the Senate passed but the House refused to enact. Signals from the White House suggest that other executive initiatives may be in the works.

Is this an outrage, a defiance of democratic legitimacy? Is it a welcome sign of courageous presidential leadership? How does the coming duel between legislative and executive branch fit into the design of our Constitution?

The answer to the last question is easy. What’s coming will be painful, frustrating, and dangerous—and it will illustrate a constitutional malfunction unforeseen in 1787. The country will survive, and it’s possible it can even make progress—but at tremendous cost in polarization and missed opportunity. The country is like a car driving with the handbrake on: Any movement forward will be accompanied by smoke and internal damage.

So we might profitably put a six-month moratorium on paeans to the wisdom of the Framers. The problem of divided government is a bug, not a feature, and the Constitution itself provides no guidance on how to work around it.

Obama’s response may or may not be outrageous, but it is not novel. Remember 2006? If ever a midterm election delivered a verdict about the “will of the voters,” it was that one. A single issue—the disastrous war in Iraq—dominated election rhetoric nationwide, and candidates who opposed the war won almost everywhere.

President George W. Bush’s response? He escalated the war the people had just repudiated, with the “surge” of 20,000 new troops into Iraq and extended tours for those already there. That worked brilliantly, rescuing the Baghdad government from imminent collapse—or, wait, it postponed inevitable failure long enough for it to land in Barack Obama’s lap in 2014.

Judging the answer is, mercifully, not part of my remit. But the example shows how, for better or worse, the Constitution created a government consisting of three high places—president, Congress, and Supreme Court—and the lay of the land looks very different from each.

To Republican members of Congress, a sweeping electoral result like this month’s is the most important thing in the world. They are legislators, and they think in terms of legislative control; in a sane system, they tend to think, they would be quoting the late Lord Shawcross of Friston , who (unwisely, as it turned out) celebrated the British Labour Party’s 1945 victory by telling Parliament, “We are the masters at the moment, and not only at the moment but for a very long time to come."

From the vantage point of a president—particularly a second-term president—the world looks different. He has two years left on an eight-year project. Congressional leaders are outraged that Obama proceeded with the U.S.-China Joint Announcement on Climate Change during his long-scheduled trip to Beijing, despite the election results. But the idea that a president would scrap months of talks—as part of a multilateral negotiating process designed to last at least until 2015—because of a change in Senate control must seem, from the White House, not just wrong but (to quote the great Vizzini), inconceivable. Similarly, the president has a war to run and a wide variety of policy initiatives to steer through the bureaucracy for the remaining two years of his term; crimes to prosecute, secret counterterrorism operations to supervise, medals to present, etc. Congress, however hostile it may be, must seem largely irrelevant to much his day-to-day work.

I’m not taking one side against the other; I’m trying to illustrate a dangerous weakness of our system, one that the Framers clearly did not foresee. Many of them believed there would not be political parties in the new system. Others no doubt thought that the government they had designed would consist of a Congress that met for a month or so every December and a president who would supervise a slumbering bureaucracy the rest of the year. Some of them assumed the president would be a passive figure, administering directions from Congress; others imagined a chief executive with some of the majesty of the king of England.

I don’t think any of them anticipated that the two branches would ever clash over which represented “the will of the voters.” The voters weren’t all that important in their design. The House was the only branch directly elected by voters. The Senate was picked by legislatures, the president by electors. Most of them believed the voters should be represented— a different entirely than being asked their “will.”

Today, however, the active consent of the people is commonly held to be the only true source of legitimacy; the two parties are hostile and polarized; and the day-to-day operations of government are vitally important in terms both of foreign threats and of an integrated global economy.

Had the Framers foreseen any of that, they might have made different choices. Something closer to a parliamentary system would have been one option; it’s a much more common system than our own. But they might also have given Congress different terms, so that all members and the president would be selected at the same time. Two years is, by world standards, a very short legislative term; politics has become a non-stop exercise. In addition, midterm elections that don’t directly affect executive power create the danger of two antagonistic governments trying to fit into one capital.

But they didn’t foresee how the system might go awry, and so we have to do the best we can with what we have.

The constitutional wisdom is that Congress has the ultimate weapon: the power of the purse. But to use the appropriations power well, Congress has to craft budgets the president will sign—or get two-thirds of the votes in each House to override a veto. Neither going to happen in the present atmosphere. The new congressional leadership are not the masters; they're just players in a complex and dangerous game. Their only real alternative is genuine negotiation with the White House, but a party that has spent six years pretending Obama did not win two national elections is unlikely to want to negotiate with him now.

So we know what probably happens next: shutdown, perhaps default, and possibly impeachment. These are the weapons of legislators too weak and divided to govern. The nation has been down this road before, and it doesn’t lead anywhere we want to go.

( Image via zimmytws / Shutterstock.com )

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Who Controls Foreign Policy: The President or Congress?

Garrett Epps, The Atlantic — Fri, 31 Oct 2014 16:45:20 -0400

Americans don’t know whether their president should be more like Victor von Doom, whipping Congress into line, or like Jeeves the butler, murmuring respectfully, “Will that be all, sir?” The text of the Constitution provides remarkably little guidance on the question.

Because disputes between the president and Congress usually are settled in the court of politics, the Supreme Court rarely gets a chance to weigh in. This Monday the Court will consider a small-stakes controversy—one word of a young child’s passport. But the Court should proceed with caution: Its decision may influence many disputes we cannot foresee.

Zivotofsky v. Kerry arises from the ongoing dispute over U.S. policy toward Jerusalem as the capital of Israel. Every administration has taken the position that until a final peace settlement is reached between Israel and its neighbors, the “final status” of Jerusalem is unsettled.

In September 2002, however, the House and Senate both passed a provision titled “United States Policy With Respect to Jerusalem as the Capital of Israel.” This statute “urge[d]” the president to move the U.S. Embassy to Jerusalem (thereby implicitly recognizing it as part of Israel). George W. Bush and then Barack Obama ignored the exhortation as an invasion of the president’s power to conduct foreign policy. Section (d) of the Act, in addition, stated that any American born in Jerusalem could choose to have the “Place of Birth” blank of his or her passport read either “Jerusalem” or “Israel.” Current State Department policy is to list only “Jerusalem,” without any designation of country, on the grounds that the United States has not recognized Israel as the sovereign in Jerusalem.

The petitioner in this case, Menachem Zivotofsky, was born in Jerusalem in 2002. His parents requested “Israel” as the place of birth on his passport. The State Department refused, and by his first birthday, the infant boy was the plaintiff in a case that is now reaching the Supreme Court a second time.

The D.C. Circuit in 2009 threw out the case, saying the dispute was a “political question”—a constitutional term for a dispute between the branches that courts are not competent to decide. The Supreme Court in 2011 reversed the D.C. Circuit and sent the case back; courts can and must decide the validity of a statute, it said.

The D.C. Circuit again held that Zivotofsky has no claim. “[W]e conclude that the President exclusively holds the power to determine whether to recognize a foreign sovereign,” a three-judge panel held. That power, it reasoned, flows from the provision in Article II, Section 3 that the president “shall receive Ambassadors and other public Ministers.”

The Supreme Court took the case again. The government is arguing for exclusive presidential power; the Zivotofsky family (and congressional amicus briefs) argue that Congress has power to regulate passports under its power to regulate “commerce with foreign nations,” to “establish a uniform rule of naturalization,” and other powers.

There are basically three ways to approach the issue. First, a judge can look at the history of the framing of the provision at issue and consider what Justice Antonin Scalia would call “the original public meaning” of the document. That study seems inconclusive; just as one example, Alexander Hamilton insisted before ratification that the “reception” power was “more a matter of dignity than of authority” and “without consequence in the administration of the government.” After ratification, as advocate for President George Washington, he thundered that the same power gave the president complete control over which governments the United States would recognize. Small wonder that Justice Robert H. Jackson once complained that the early materials are “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

Second, a judge could look at the practice followed by the two branches over the past 225 years. Inconclusive again. Basically, presidents have often insisted they have the power exclusively, except when Congress got ahead of them and the president ran after it, screaming, “I’m leading!”

Finally, a judge could consider which rule would lead to better results. “Because U.S. policy toward Jerusalem is inextricably linked to this nation’s broader foreign policy in the region, confusion about the President’s recognition could undermine the United States’ credibility with the parties to the peace process,” the government argues in its brief.

Zivotofsky’s lawyers dispute that. The change, they say in his brief, will have “negligible impact on foreign policy.” In the first case, Chief Justice John Roberts asked attorney Nathan Lewin, “We're supposed to decide whether or not the executive is correct in saying it’s a significant problem. He says that, but [should the Court say], ‘We know foreign policy better; we don't think it's going to be a big deal’?"

Lewin’s answer shows his dilemma and the Court’s: “I don't think the Court is being asked to decide a question of foreign policy. Congress has decided that saying ‘Israel’ alone does not present a foreign-policy issue. Congress recognized that, with moving the embassy, there might be a foreign-policy issue. So, they said that the president can waive that” (emphasis added). Setting aside the quotes from The Federalist, this is the heart of the case. Read broadly, the claim is that Congress can decide any issue of foreign policy.

Alyza Lewin, Nathan Lewin’s daughter, will argue the case this time around. Both she and the solicitor general, arguing on behalf of the administration, should have answers ready for one question: With whom should the Court trust the power to make day-by-day foreign-policy decisions, the president or Congress?

A small decision in this area, if not written clearly, can have outsize influence on unforeseen events. Consider that a minor dispute over the sale of machine guns to Bolivia is still quoted today. That 1936 case, United States v. Curtiss-Wright Export Corp., provided the opportunity for Justice George Sutherland to proclaim (though the issue was not even present in the case) the “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”—language that presidents have relied on since in issues more important than Bolivian arms sales, most notably George W. Bush’s claim of unilateral authority to attack foreign nations without congressional authorization. But in 1952, when the Court faced a case of sweeping importance—Can the president seize all the steel mills in the country because a steel strike might affect the Korean War effort?—the justices were unable to speak clearly. Writing only for himself, Justice Jackson managed to contribute to, not clarify, the enigma that is presidential power.

John Roberts speaks fondly of judicial unanimity and of the need for narrow decisions. Whatever the result in this case, we can hope it is by a lopsided vote, and that the chief writes the opinion. Agree with him or not, his judicial prose is usually crystal-clear; he of all the nine is best equipped to make useful law, rather than more pharaonic dreams.

(Image via Vlad G / Shutterstock.com)

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