Monday, April 23, 2018

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

Sandy Levinson

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

If the court rules here for President Trump, I don’t see that many lingering problems; I don’t know that we’ll ever have a president again like Trump, who says such awful, awful things on a daily basis,” Blackman said.
“I worry much more if they rule against President Trump, and they give courts [a] green light to parse campaign statements and the like, this could potentially hamstring not just this president, but also future presidents.”
Blackman's argument requires a willful blindness to the implications of giving someone "who says such awful, awful things on a daily basis" the basically unconstrained power that modern presidents have with regard especially to foreign and military affairs.  The theoretical possibility that some "future president" might be constrained by the willingness of the Supreme Court to take judicial notice, as it were, of manifest bigotry coupled with setting aside ordinary administrative procedures, should take precedence, he argues, over the clear and present danger that Donald Trump presents to the integrity of our constitutional form of government.  From our perspective, this is legal formalism run riot.  Blackman has responded to an earlier version of this argument. 

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

aaa . 

Implications of our “post-subpoena” world

Guest Blogger

David Schulz

Last week FBI whistleblower Terry Albury pled guilty in Minneapolis to two counts of violating the Espionage Act.  Albury is the second person – after Reality Winner – prosecuted by the Trump administration for leaking documents to the media in just 15 months.  This puts Trump on track to outdo President Obama’s record-setting pace of Espionage Act whistleblower prosecutions, a chilling prospect given the description in the just-released Comey memos of the President and his FBI Director gleefully discussing the prospect of pursuing leakers aggressively and hoping to “nail one to the door as a message.”
The continuing use of the Espionage Act as a de facto official secrets act and Agent Albury’s conviction once again lay bare the fundamental problem that our legal regime for protecting national security secrets affords no adequate opportunity for a whistleblower to defend a disclosure on First Amendment grounds.  Albury had been the only African-American FBI agent in Minnesota, home to a significant Somali refugee community and, according to his attorney, Albury’s disclosures were an act of conscience.  Albury was motivated to pass information to a reporter by his belief that there was no viable alternative to remedy abuses he witnessed in the FBI’s investigation of political and religious groups and ethnic minorities, including its widespread use of national security letters (NSLs).
The Espionage Act was written a century ago to prosecute spies after World War I, but is being used to send sources like Albury to jail for leaking information to the U.S. press without any defense or mitigation based upon the public interest in the information disclosed.  As applied by the Department of Justice, the Espionage Act requires proof only that a whistleblower had “a reason to believe” a disclosure made to a journalist could harm the United States or aid a foreign country—it does not even require proof that a disclosure actually caused any harm.  
Like all nine of the whistleblowers prosecuted during the Obama administration, Albury was prosecuted without any evidence from reporters identifying their sources.  Indeed, with one exception, the government has not even sought such evidence. (A subpoena was issued to James Risen in the Sterling prosecution, but after the Fourth Circuit upheld it, Risen was never called to testify.)  The new reality is that journalists and their sources live in a “post-subpoena” world, where a government armed with massive new surveillance technology and unilateral authority to issue NSLs can identify and prosecute leakers without any need for evidence from a journalist.  This reality requires a serious re-thinking of the ways in which the public interest in disclosure can appropriately be taken into account to ensure that citizens have the information they need for self-governance to work.
Courts currently view the First Amendment as affording virtually no protection to a government whistleblower who discloses classified information and they extend virtually dispositive deference to the Executive in its classification decisions.  Recognizing that this lack of leaker protection creates a risk of substantial over-deterrence, some scholars have taken refuge in the thought—supported by the outcome of the Pentagon Papers litigation—that the information that truly needs to come out will make its way to the public through confidential sources working with reporters, who do have First Amendment protection and can be expected to protect their sources’ anonymity.  No more.
The rules of that game no longer work, as 11 consecutive Espionage Act prosecutions now attest.  Given this reality, there would seem to be two paths forward:  Either a technology develops that can once again allow whistleblowers confidently to communicate with reporters in a confidential manner (although no such solution is currently in sight), or the type of First Amendment defenses that have been widely understood to protect the press when it discloses national security information need to be extended to whistleblowers directly.  When Congress a few years back attempted to craft a federal shield law, for example, its legislation provided that the proposed reporters’ privilege would be overcome when “nondisclosure of the [reporter’s] information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in newsgathering and maintaining a free flow of information to citizens.” Free Flow of Information Act, S. 2831, 109th Congress, Section 4(b)(4) (2006).
Heidi Kitrosser has written insightfully on the need for the development of legal protections for whistleblowers and suggests that this same approach could be modified to provide protection to whistleblowers.  To establish in an Espionage Act leak case, for example, the government could be required to establish that there was no objectively reasonable basis for the leaker to believe that the public interest in disclosure outweighed national security concerns.  Prof. Kitrosser identifies other factors that could be added to the Espionage Act equation to prevent over-deterrence, such as permitting courts to take into account how and to whom information was disclosed, the extent to which the disclosed activity was illegal, and the public debate prompted by a disclosure as a measure of its public significance.  
The Albury guilty plea underscores the significant risks of not taking some such steps to address the current imbalance, which can choke off information the public vitally needs.  As Jameel Jaffer frequently puts it, imagine the world we be living in today if CIA black sites, the abuses at Abu Ghraib, the government’s techniques of mass surveillance and other vital information disclosed by whistleblowers were all still unknown.
David Schulz is the Floyd Abrams Clinical Lecturer in Law and the co-director of Yale's Media Freedom and Information Access Clinic. You can reach him by e-mail at david.schulz at

Sunday, April 22, 2018

“Not the Next Korematsu”

Richard Primus

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

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

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

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

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

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

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

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

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

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

Marty Lederman

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

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

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

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

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

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

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

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

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

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

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

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

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Thursday, April 19, 2018

Presidential Impeachment in Partisan Times

Stephen Griffin

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

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

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

Thursday, April 12, 2018

The Trump Amendment

Gerard N. Magliocca

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

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

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

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

Saturday, April 07, 2018

The real cost of Masterpiece: It’s personal.

Guest Blogger

Paul Smith

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

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

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

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

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

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

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

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

Friday, April 06, 2018

Intermediary Immunity and Discriminatory Designs

David Pozen

Section 230 of the Communications Decency Act of 1996 is widely credited with helping free expression flourish online.  With limited exceptions, internet service providers, social networking sites, and other online intermediaries are protected under Section 230 against state civil and criminal claims for the third-party content they host.  This immunity has allowed intermediaries to publish enormous volumes of speech.  Yet in so doing, it has arguably shaped the development of the public sphere in problematic ways—subsidizing digital platforms over analog ones, rewarding reliance on user-generated rather than employee-generated content, and allowing website operators to avoid internalizing many of the social costs of the materials they disseminate.  Without the expansive immunity granted by Section 230, the internet might not have become the remarkably rich discursive domain that it is today.  It also might not be quite so saturated with racist, misogynistic, defamatory, fraudulent, and otherwise harmful speech.
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Monday, April 02, 2018

Some thoughts after reading two contributions to the Marquette symposium on legal scholarship

Mark Tushnet

My kids say that they’re going to have “It’s Complicated” engraved on my gravestone. That’s why I don’t tweet (and often have misgivings about blogging). I suspect that the only way to “promote reasoned debate” on Twitter is to point out some complexities that other Tweeters have overlooked – which probably would come across either as snark or as trolling. My guess is that “Yes but” isn’t likely to get many retweets.

Another thought was that lots of legal scholarship consists of throwing stuff out there and seeing what catches hold. And, in that mode, maybe the stuff doesn’t have to be fully developed (a point relevant to Paul Horwitz’s contribution). I’m thinking of the following: In 2003 I wrote an article called “Constitutional Hardball,” published in a symposium issue of the John Marshall Law Review. The idea sat there for a while without catching hold. I have several thoughts about why: It was in a symposium issue, and no one except the contributors read symposium issues. It was in the John Marshall Law Review, and no one (full stop) reads the John Marshall Law Review. And, relatively shortly after I published my article, two other articles were published in the University of Pennsylvania Law Review (a higher prestige journal), on related ideas (constitutional crises and constitutional showdowns), so when someone thought about something in the general ballpark of these concepts, they cited to those articles rather than mine. Then, over the past year my “hardball” article was (re?)discovered – to the point where it’s probably going to fall prey to the bane of citation studies, the idea that becomes common knowledge so that no one cites to the place where it was originally articulated. My point here is that maybe we can assess contributions to knowledge only retrospectively, and that “criteria” purporting to identify good scholarship today might not actually do so.

Finally, Horwitz describes the standard format of a law review case note (which I think he takes, probably accurately) as a metonym for the standard law review article. Each concludes by attempting to answer the question, “What’s the normative payoff?,” and – because (aha!) it’s complicated – the answers are always inadequate. For the past several years I’ve been reading extensively in the law review literature produced during the 1930s (both pro- and anti-New Deal), and – though styles have changed – they are indistinguishable in form from contemporary law review articles and case notes. The ur-texts, I suppose, are case notes in the Harvard Law Review. In the 1930s they were a lot shorter than today’s (which have something like an eight-page limit/requirement), but the format is the same. Notably, they always end with a one-sentence normative payoff (rather than, as today, a one- or two-paragraph payoff). Here my thought is that maybe what Horwitz is describing is what constitutes legal scholarship, and if so perhaps his criticisms of it as falling short of scholarly ideals might be misplaced. He asks for “candor” and “integrity,” but maybe those ideas have to be indexed to the field – that is, maybe what we should be looking for is “candor as understood within the field of legal scholarship,” and similarly “integrity as so understood.” And it might be that there’s quite a lot of that rattling around.

The Multiple Uses of Justice Scalia

Guest Blogger

Calvin TerBeek

Shortly after President Clinton’s 1996 re-election, an originalist law professor took to the pages of National Review (NR) to propose that Justice Scalia run for president on the Republican ticket in 2000. “No one else of prominence in America’s public life,” wrote John McGinnis, “makes the case for conservatism better than Scalia.” Scalia was “a matchless expositor of laissez-faire economics, and yet no can doubt that he believes as intensely in social conservatism . . . .” Put differently, Candidate Scalia would be able to uniquely appeal “to social and economic conservatives and make the case for constitutional reform.”

It may be difficult to remember now—especially in the wave of writings following Scalia’s death tightly tying his legacy to originalism and textualism—but as late as December 1996, Scalia, even among conservatives, had yet to emerge as the public face of originalism. In addition to McGinnis’s piece urging Scalia as “the perfect messenger for fundamental rightward political change,” NR writers portrayed the justice as an important conservative voice rather than a champion for originalism. The editors wrote: “as Justice Scalia has been valiantly pointing out in recent dissenting opinions, Supreme Court justices serve primarily as the mirror and mouthpiece of current elite opinion.” At about the same time, law professor David Forte penned an essay for NR painting Scalia in messianic terms:

The prophetic role of Justice Scalia is to speak to the age, as is the role of all prophets. He speaks less to his own—the courts and the legal fraternity—and more to those in other parts of our political system. He casts up a dire warning that not only has the Supreme Court in many ways removed the Constitution from the Framers, it is also removing the democratic process from the people and their representatives. His words are on the edge of the apocalyptic; If the Republic is to stand, the Republic must take heed.

And even when specific Scalia judicial opinions were referenced, NR’s writers praised him for “subjecting [Justice Kennedy’s Romer v. Evans opinion] to appropriate scorn in a withering dissent of the type to which Court watchers have become too accustomed from him. (It’s practically an art form.).” Or, after Lee v. Weisman, NR heaped praise upon the justice for recognizing “the loss of secular prayer on public occasions” as the “loss of a ‘unifying mechanism’ in American life.”

This can be understood as the early- to mid-career “constitutive story” about Scalia—a party-unifying conservative prophet warning that the country was in secular decline as the implicitly counter-majoritarian intellectual elites ignored the “original Constitution” to enact an illegitimate social agenda. This is not to say that Scalia and constitutional interpretation were never linked together, but the focus of the intellectual debate over the Constitution in NR—the bellwether of conservatism—was Robert Bork’s defense of originalism and Harry Jaffa, a Staussian, defending “Declarationism.” In short, Scalia was “useful,” but for different reasons than one might have thought. Thus, despite attempts by originalists and conservative commentators to create a linear, teleological story about the concomitant rise of Scalia and originalism since the mid-1980s, until the late 1990s (A Matter of Interpretation was not published until 1997 and was excerpted in NR), Scalia was better understood, outside the law schools (and perhaps even within), as a political entrepreneur on behalf of conservatism.

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Sunday, April 01, 2018

Solum on Pedantic Originalism

David Pozen

In the spirit of the day, and in homage to the master, I thought I would share a new paper that may be of interest.  Deepening his foundational work and refining some of its core claims, Lawrence B. Solum (Georgetown University Law Center) has posted Pedantic Originalism (unpublished monograph) on SSRN.  Here is the abstract:
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Friday, March 30, 2018


Sandy Levinson

I have just finished reading Harvard Prof. Noah Feldman's remarkable book on James Madison.  It deserves a wide readership.  It is extremely well-written and full of insights.  As the title suggests, it focuses on three facets of Madison's career, his role as one of at the chief designers of the U.S. Constitution (the "genius"); an important originator of the American party system (the "partisan"); and then America's first war-time president.  The first part is likely to be least surprising to most con law buffs, though it certainly tells the story very well.  Madison may have been the "father of the Constitution," but he was a distinctly disappointed parent, given that at that stage of his life he, like Hamilton, really disdained the states and wished an even more "consolidated" government than the one achieved in Philadelphia.  And, importantly (and correctly), he despised the allocation of voting power in the United States Senate.  Where the book really shines, at least for me, was in the second two-thirds of the book.

Feldman convincingly demonstrates that Madison did not simply disagree with Hamilton (his erstwhile close friend and co-author of The Federalist), but, in an almost Schmittian way, identified him as an "enemy" of the Constitution who had to be organized against and defeated.  This is distinctly different from Madison's views toward many others, including Edmund Randolph and James Monroe, with whom he disagreed but always in a spirit of fraternity and the belief that friends could differ but still remain cordial to one another because, after all, they were properly motivated by devotion to the common good (as envisioned by Madison).  As Feldman argues, the kinds of "polarization" we see today is baked into Madison's theory of the necessity for political parties, for if one defends the necessity to organize a political party as based on the fact that one's opponents are a "faction," defined by commitment to private interests rather than the common good, then the only proper response is political warfare.  So we immediately get, among other things, the Federalist Midnight Judges and then the Jeffersonian purge of most of those judges.

Steven Levitsky and Daniel Ziblatt in their important (albeit flawed) book on How Democracies Die emphasize the necessity for toleration of one's opponents and a willingness to engage in "forbearance" with regard to the complex plurality of contending groups in American polities.  It is not that Madison was always rigid; he certainly engaged in more than enough forbearance of slavery (being a slaveowner himself), and he ultimately was willing to accept the dreadful compromise regarding the Senate rather than risk failure of the Philadelphia project.  But he defined Hamilton as different.  Feldman makes the brilliant point that the difference between the two is that Madison put his primary reliance on formal structures of constitutions (though not on "parchment barriers" devoted to rights), whereas Hamilton believed that what was most crucial was developing an alliance between the propertied and the state, so that the former would have incentives to support the latter.  Thus the importance, say, of the Bank of the U.S. and assumption of state debts.

Feldman also does an exceptional job of delineating Madison's "republican" approach to foreign policy, which gave priority to economic challenges such as embargoes or 'non-intercourse" acts, as against military warfare.  That strategy obviously failed with regard to the UK, which generated the fiasco of the War of 1812.  Feldman is surprisingly generous in his account of Madison as a wartime president, though he emphasizes also that the cabinet was full of incompetents, and Madison himself obviously had no military experience or particular acumen as commander-in-chief.  The War itself was wholly unnecessary, caused in part by the sheer fact that it was impossible to get real-time information about what was going on in Europe so that the US could make decisions based on genuine facts.

The book is not truly a "biography."  Instead, it is a study of these three aspects of Madison.  But that doesn't make it any less fascinating or, obviously, less worth reading.  It throws immense light on the Founding period, but it is also not difficult to draw some extrapolations with regard to our own era.  (Indeed, from my perspective, Feldman is too admiring of the Constitution, whereas I would place more emphasis on our need to learn from Madison's "audacity" in leading what Michael Karman called a "coup" against what Madison and his colleagues believed was an "imbecilic" government created by the Articles of Confederation.  One might suspect that Madison would be astonished at the "veneration" attached to the Constitution.)  It's a hefty book (628 pp. before the footnotes), but one keeps turning the pages to find out what happens next.      

There is no point in opening this up for comments unless one has actually read the book.

Tuesday, March 27, 2018

The Administration is Lying About the Census

Joseph Fishkin

The Commerce Department has announced that it is adding a question about citizenship to the 2020 Census, for the first time in seventy years.  There has been a lot of speculation about possible political motivations for this action.  It is difficult to know exactly what motivates government actors whose deliberations are not public.  But it is possible to know one thing: the government’s sole stated reason for adding the question—improving enforcement of Section 2 of the Voting Rights Act (VRA)—is false.  It is not the real reason.

 “Lying” is a strong word.  Many falsehoods are based on mistakes, confusion, carelessness, wishful thinking, and so on.  But today’s situation puts me in mind of an evidentiary pattern that arises constantly in employment discrimination law: The plaintiff thinks something nefarious has occurred, but has no direct proof; the defendant offers a legitimate, non-discriminatory reason for the disputed action; all the plaintiff can prove is that the proffered reason is false.  It’s then, ordinarily, up to the jury to sort out what really happened.  But the fact that the defendant offered up a reason that was definitely false is significant.  It raises a potential (contestable) inference that it may have been a lie, covering up something the defendant could not admit.

My sole aim in this post is to explain why the government’s stated reason for adding the citizenship question is false.  To understand this, you need to understand something about the role Census data plays in redistricting.  It plays two completely different roles.

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The Wrong Section 2

Gerard N. Magliocca

Yesterday the Commerce Department announced that a citizenship question will be included on the next census. Secretary of Commerce Wilbur Ross stated that the addition of this question would generate data that would be helpful "for determining violations of Section 2 of the Voting Rights Act," which "protects minority population voting rights." The Commerce Secretary also concluded that the concern that fewer non-citizens will respond to a census that includes a citizenship question were unfounded. Several states are considering a challenge to this proposed change. Presumably, they will argue that the decision to add a citizenship question reflects a discriminatory intent that violates the Fourteenth Amendment.

While there are many ways of assessing the Department's intent, here's one that I want to throw out there. I find it strange that a Commerce Department (responding to a DOJ request) interested in asking a citizenship question to protect voting rights would choose not to ask that question about Section 2 of the Fourteenth Amendment. If the Department really wants more information about our citizens to protect their voting rights, then the most straightforward way of doing so would be to ask how many of them were unable to vote and for what reason. There is precedent for this in the 1870 census form, as my forthcoming article explains.

The actual census question being proposed, by contrast, is uninterested in whether citizens can or cannot vote. This strikes me as a poor tool for improving voting rights, though it might be a fine way of reducing the count of non-citizens.

Wednesday, March 21, 2018

Mark Zuckerberg Announces that Facebook is an Information Fiduciary


Today in response to the Cambridge Analytica scandal, Facebook founder Mark Zuckerberg announced what I have long contended-- that Facebook is an information fiduciary. Indeed, along with Google, it is one of the most important information fiduciaries in our present age.

Of course, Zuckerberg didn't actually use the words "information fiduciary." But he did say two things that are effectively equivalent to it.

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Tuesday, March 20, 2018

"A First Amendment for All? Free Expression in an Age of Inequality"

David Pozen

Readers in the New York area: The Columbia Law Review will be holding a day-long symposium this Friday, March 23, that asks how First Amendment law might be reimagined for a present and future of mounting economic inequality and authoritarian challenges to democratic norms. The panels are organized around works-in-progress by Jack Balkin, Catherine Fisk, Leslie Kendrick, Genevieve Lakier, Jed Purdy, Bertrall Ross, and Mike Seidman. (Fisk’s and Seidman’s drafts are already online; all of the papers will be available in hard copy at the event.) More information about the symposium, which is cosponsored by the Knight First Amendment Institute and the Center for Constitutional Governance, can be found here. It is free and open to the public, but registration is required.

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