Tuesday, November 24, 2015

Evenwel and Minority Representation

David Gans

Next month, the Supreme Court will consider Sue Evenwel’s bid to change the way state and local governments draw election districts.  Demanding that state and local governments across the nation change the way they draw legislative lines, Evenwel argues that it is unconstitutional for states to draw districts based on total population, creating districts of substantially equal numbers of people.   Evenwel’s arguments—which fly in the face of our Constitution’s promise of equal representation for all—would undermine minority representation both in Texas, the state Evenwel is suing, and throughout the nation.  Recent events in Yakima, Washington, provide a good example. 

The town of Yakima—an agricultural community 140 miles east of Seattle—is forty percent Hispanic, but, until this year, had never elected a person of Hispanic origin to the town’s city council.  This year, a federal district court held that Yakima’s at-large system of elections for city council violated the Voting Rights Act by denying Hispanic voters an equal opportunity to elect their candidate of choice, and ordered the town to draw single-member districts composed of substantially equal population.   Earlier this month, in elections held under these court-ordered boundaries, three Hispanic candidates won election to office, ending the exclusion of Hispanics from elected office.   

But the town of Yakima is now using every avenue to undo these historic gains, claiming—as Evenwel does—that the Constitution does not permit state and local governments to draw districts composed of substantially equal numbers of people if those districts do not contain approximately the same number of eligible voters.   Yakima argues that the Hispanic voters’ claim under the Voting Rights Act should be dismissed because creating single-member districts in order to make it possible for the Hispanic community to elect its candidate of choice would result in “severe malapportionment of eligible voters.” Represented by defense counsel in the Voting Rights Act litigation, Yakima has even gone  so far as to file an amicus brief in the Supreme Court supporting Evenwel’s attack on the principle of equal representation for equal numbers of people. 

As this example illustrates, Evenwel’s far-reaching arguments, if accepted by the Court, would  not only wreak havoc with our democracy, requiring states to change the way they draw district lines, but it would also make it harder to draw election boundaries that ensure that racial minorities have an equal chance to elect representatives of their choice.  Evenwel’s argument would undermine the protections afforded by the Voting Rights Act and take political power away from urban population centers where racial minorities overwhelmingly live, giving it to whiter, more rural areas.  This is no accident.    Ed Blum—the mastermind behind Evenwel’s case—wants to stop states from creating majority-minority districts that help ensure equal political opportunities for all regardless of race.  Denying equal representation to unnaturalized immigrants, children, and others who lack the franchise won’t alone accomplish Blum’s goal, but it would make it harder to draw election boundaries that ensure that minorities have a fair chance at the polls.  Among the losers—if Blum succeeds in eliminating the guarantee of equal representation for equal numbers of people—will be racial minorities in places like Yakima, who will, once again, find it harder to have their voices heard.  

David Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Evenwel v. Abbott.  This post is cross-posted at Text and History.  

Monday, November 23, 2015

A Tub To A Whale

Gerard N. Magliocca

Congressman Aedanus Burke is not a household name, but during the First Congress he contributed something distinctive to legal discourse by criticizing Madison's proposal for what became the Bill of Rights as "a tub to a whale." What Burke meant was that the amendments were meaningless, just like the wooden tub that a crew would throw into the water as a decoy to direct whales away from a ship.

While Burke turned out to be wrong about importance of the first set of amendments, I have been reflecting lately (as part of my next book) on how the constitutional construction of the Bill of Rights acts as a distortion or a distraction comparable to a tub to a whale. The Constitution does not say that the first set of amendments are a bill of rights. Furthermore, that term was not commonly applied to those amendments until long after the Founding, and even then there was disagreement about if the first eight, the first nine, or the first ten were the Bill of Rights.

Now an obvious question here is, "Well, what's the harm of calling some part of the first set of amendments the Bill of Rights?" One possible answer is that the exclusion of the Reconstruction Amendments from that category places too much emphasis on the Founding and not enough on what happened after. The focus on the Bill of Rights during the early twentieth century occurred while Jim Crow was firmly entrenched, and thus prior to, say, 1950 thinking of the Fourteenth Amendment as part of the Bill of Rights was impossible.  Nothing prevents that sort of redefinition now, of course, but constitutional inertia can be powerful.  FDR tried to get around this problem by pitching the idea of  a "Second Bill of Rights" that protected economic equality, but that slogan never caught on.

I'm going to do another post shortly about how Bolling v. Sharpe fits into this story, but that may have to wait until after turkeys have been consumed.

Use and Reference Squared

Mark Tushnet

The summary of a story in today's Chronicle of Higher Education reads, "Kansas professor is on leave after students complain over her use of n-word and her statements on retention. Situation is latest to raise issues of racial sensitivity and academic freedom." When you read the story itself, it turns out that the professor didn't "use" the word in the technical sense, but "referred" to it. (My providing a link to the story is the "squared" version of reference.) There's more to the controversy than the reference to the n-word. But, at least as reported, I would think that the professor's in-class actions were well within the boundaries of academic freedom and discourse, though perhaps there was some inartful phrasing (as can occur when one doesn't simply read prepared notes).

Sunday, November 22, 2015

The Perils of Originalism: Notes from Zivotofsky II

Richard Primus

            One of the important and well-known problems with originalism is that even smart judges rarely have the historical knowledge and training that is necessary for interpreting and drawing conclusions from the world of prior centuries.  A method of judicial decisionmaking ought to be one that judicial personnel can apply responsibly in practice.  So even if some form of originalism made sense as a matter of ideal jurisprudential theory, that form of originalism would be a poor choice of method for an actual judiciary if the judges turned out to be unable to operationalize it.  (Reading the minds of witnesses through the magic of Legilmency would be an excellent way for district judges to do credibility assessments if the judges had the skills of Severus Snape.  Lacking the capacity to perform magic, judges probably shouldn’t try to do things that way.)
            Many thoughtful originalists acknowledge that history can be messy, that historical interpretation is often difficult, and that sometimes historical sources yield no answer to a now-pending question—but that we should not throw out a whole method for being imperfect and that the difficulties with getting history right should not be overstated.  This rejoinder often sounds reasonable enough.  So it is important to point out, on a regular basis, how flagrantly awful even the most respected and prominent originalists can be at rendering their historical evidence. 
The reason why it is important to keep making that demonstration is not, I think, because it might prompt committed originalists to give up their preferred approach.  The point is rather to show the broad mass of constitutional lawyers—most of whom are not committed originalists but who do think that original meanings should have an important role in constitutional interpretation—just how flawed the practice of originalism actually is.  (If you think that claims about original meanings should be taken with a grain of salt, you might keep eating—a grain of salt isn’t so bad for you.  But you might alter your diet if you realized that the sodium content of what you were eating was through the roof.)
            The illustration to which I will here call attention is one that I noticed again a few days ago while preparing to speak with students about this year’s decision in Zivotofsky v. Kerry (“Zivotofsky II”).  The majority in that case struck down § 214(d) of the Foreign Relations Authorization Act of 2013, which provides that the passport of a U.S. citizen born in Jerusalem shall list the citizen’s place of birth as “Israel” if the citizen so requests.  Justice Scalia wrote a dissent—one that I find cogent in most respects.  In particular, I agree with Justice Scalia that Congress has the authority to regulate passports.  But before Justice Scalia reached the portions of his analysis arguing concretely in favor of congressional power to enact § 214(d) in spite of the President’s contrary preferences, he framed the big picture in a way that should make historians gape.
            Justice Scalia wanted to make the general point that the checks and balances of our constitutional system operate in the realm of foreign affairs and not just domestically—that the President does not make American policy unilaterally, even beyond the border.  That’s fine.  It’s even important.  But to make the point, Justice Scalia’s opening paragraph made a remarkable historical claim.  The opinion began as follows: “Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom's foreign affairs.”  To support the proposition, Justice Scalia cited Blackstone.  And then he noted that the People of the United States decisively broke from this tradition when they became independent and designed the Constitution.  The moral, which primes us to see see the folly of the majority’s decision in Zivotofsky II: an executive with unchecked foreign-affairs power how they did things in the bad old Empire against which we rebelled, not how we do things here. 
            I tend to agree with Justice Scalia that the majority’s position in Zivotofsky is unsound.  But the picture of eighteenth-century British government that Justice Scalia offered to frame the point is fully make-believe.  By the time of the Hanoverian Kings, Parliament was thoroughly involved in foreign policy.  Indeed, the Parliamentary settlement that installed the Hanovers in the first place came with statutory limits on what these new Monarchs would be allowed to do in the domain of foreign affairs.  Through the eighteenth century, Parliamentary Ministries approved and disapproved alliances, granted and refused foreign subsidies, and as a practical matter authorized war and peace, to say nothing of building the overseas Empire.  George II had little interest in that last little endeavor, being much more focused on Europe, but the Crown’s disinterest didn’t matter much, because the Ministers in Parliament were driving.  George III, who was more interested in the Empire than his grandfather had been, would have been shocked to learn that he had a free hand in foreign affairs, given his constant experience of having to deal with Parliament.  To say nothing of the consternation that news of the King’s exclusive foreign-affairs power would have caused throughout the capitals of Europe, as governments wondered why they were spending so much money retaining London agents for the purpose of lobbying Parliament to make favorable foreign-affairs policy. 
            How does a Supreme Court opinion signed by three Justices open with a paragraph that asserts a basic proposition about constitutional history and whiffs so completely?  It’s hard to know for sure, but here’s a hypothesis.  Technically, in the eighteenth century and also today, foreign-affairs powers in the United Kindgom’s system were and are classified as matters of “royal prerogative.”  Blackstone used that term at one of the pages that Scalia’s opinion cites.  Someone unfamiliar with U.K. constitutional law might see the foreign-affairs power described as a matter of royal prerogative and infer that things worked just as Justice Scalia said—that the King wielded exclusive control over such things.  But that inference would misunderstand the prerogative powers.  Even in 2015, British constitutional doctrine continues provides that foreign-affairs powers up to and including decisions on war and peace are matters of royal prerogative—they belong, officially, to the Monarch.  But it is a matter of consensus understanding and centuries-old unbroken practice that the Monarch exercises those powers on the advice of her Ministers—which is a polite way of saying that the elected leadership of Parliament asks the Monarch to do X and the Monarch duly says “I hereby do X.”  The practice of a Monarch’s exercising the prerogative powers on the advice of his Ministers was not as old or as complete in 1776 as it is two hundred and fifty years later, but the basic move had already been made.  George III had more latitude than Elizabeth II has, but already Parliament was calling a lot of shots.  So yes, Blackstone called foreign affairs a matter of royal prerogative, which officially they were—and are, even today.  But everyone from Blackstone to John Adams to Louis XIV knew that in the British system Parliament had a lot of actual power over foreign affairs. 
            I don’t think that judges—even Supreme Court Justices—should be responsible to know how the British constitution worked more than two hundred years ago.  The world is full of specialized knowledge, and nobody can know everything, and federal judges have enough to keep track of without having to be historians, too.  So my complaint isn’t that Justice Scalia (or the two other Justices who joined him) should have a better understanding of eighteenth-century British constitutional law.  Instead, the point is that we should all expect that even our leading judges will not know what they would need to know in order to interpret eighteenth-century materials—even, in this case, when the materials are something familiar like Blackstone, and even when the subject matter is a pretty basic fact about the constitutional law of the world in which the Founders operated.
If a Supreme Court opinion by a leading originalist in as prominent a case as Zivotofsky II can open with an entire paragraph of historical fantasy, what hope is there for the practice of originalism in the courts more broadly?  We should not think “Look, sometimes it won’t work out, but most of the time it’s fine.”  We should think “Originalist interpretations are liable to be shot through with misunderstanding even under what seem like favorable conditions.” 

Saturday, November 21, 2015

Meanwhile, back in Rowan County, Kentucky . . .

Marty Lederman

As I explained in these two posts, the plaintiffs in Miller v. Davis have made a motion for Judge Bunning to require the Deputy Clerks in Rowan County to go back to issuing marriage licenses in the form that Deputy Clerk Mason was issuing them while Clerk Kim Davis was in federal custody--rather than the radically adulterated form that Davis directed Mason to issue once she returned to work--and to reissue, in proper form, any marriage licenses that they have issued since September 14.  The plaintiffs have also asked the judge to specifically order Davis not to interfere with the Deputies' issuance of such unadulterated licenses.

The plaintiffs argue that the adulterated licenses harm them in two distinct ways:  First, although the plaintiffs do not believe that a marriage performed pursuant to such a license would be invalid under Kentucky law, they assert that couples acting in reliance upon such licenses will live under the shadow of possible future challenges to the validity of their marriages.  Second, plaintiffs allege that they have been subject to "humiliation and stigma associated with the receipt of marriage licenses that are effectively imprinted with Davis’ opprobrium."

The Governor's Brief

In order to assess the first argument, about the validity of a marriage solemnized pursuant to an adulterated license, Judge Bunning ordered the Governor of Kentucky to file a brief addressing "the validity of the marriage licenses issued by the Rowan County Clerk’s Office on or after September 14, 2015."

Governor Beshear filed that brief last week.  In it, he concludes that the altered licenses do not fully comply with the requirements of Kentucky law, and that therefore County Clerk Davis and Deputy Clerk Mason could be "subject to statutory sanction under KRS 402.990," for misdemeanor violations of the Kentucky statute.

Even so, the Governor also stressed that, on his reading of "well-established Kentucky law," there will be "no adverse effect on the couples who marry pursuant to a facially deficient license," who have "done everything within their ability to be lawfully married."  "Where the couples are legally eligible for marriage and have complied with the statutory prerequisites within their control," he writes, "Kentucky’s courts will recognize the marriage as valid notwithstanding the fact that a functionary in the process did not perform his/her obligations precisely as required."  The Governor cites Kentucky case law that appears to support this conclusion.  Accordingly, the Governor himself, as well as Executive Branch agencies over which Governor Beshear exercises supervisory control, "have and will continue to recognize as valid those marriages solemnized pursuant to the altered licenses for purposes of the governmental rights, benefits, and responsibilities."

The Governor cautioned, however, that he is not the official Kentucky arbiter "of whether a lawful marriage has been consummated," and that it is possible (although he thinks very unlikely) that a court could call into question the legality of a marriage solemnized pursuant to an altered license "as part of some other court proceeding, such as a claim for dissolution."

The Plaintiffs' Response

In response to the Governor's filing, the plaintiffs yesterday filed a reply brief arguing that the court should grant their motion for the same two reasons they previously offered.

First, because there remains at least a chance that a future court--e.g., in a dissolution proceeding--might determine that a marriage solemnized pursuant to a license that's been adulterated in Rowan County is not valid, the couples who are marrying with such licenses "now face fear and doubt that a marriage solemnized pursuant to an altered license could be held invalid at some unknown time in the future."

Second, even if there were no substantial risk of such a future determination of invalidity, "Davis’ alterations to the marriage licenses effectively brand those licenses with a stamp of animus against gay people."

In her brief in opposition to this animus-based argument, Davis emphasized that Rowan County is issuing the adulterated licenses to same-sex and opposite-sex couples alike.  Plaintiffs respond that their argument is not "that Davis is treating gay couples and heterosexual couples differently," but instead that marriage license applicants in Rowan County "receive distinctly different licenses than applicants in other counties in Kentucky" as a result of Davis's well-known view that "that gay couples are second-class citizens, unworthy of official recognition and authorization of their marriages."  Thus, according to the plaintiffs, "all marriage license applicants in Rowan County – including heterosexual couples, such as Fernandez and Holloway [a plaintiff couple that postponed their marriage and who must now reapply for a license] – are forced to bear the burden of Davis’ animus against gay people."  "Such animus should have no place in the official government functions of Rowan County," plaintiffs write.

In my earlier posts, I had assumed that this "animus"-based argument was premised on the claim that the adulterated licenses violate the Fourteenth Amendment equal protection rights of at least some plaintiffs, even if they are issued to same-sex and opposite-sex couples alike (thereby raising the Palmer v. Thompson question).  Interestingly, however, in their reply brief the plaintiffs make no mention of a constitutional violation; they appear to raise the animus argument merely in order to demonstrate that the plaintiffs are suffering harm by virtue of the Rowan County officials' issuance of adulterated licenses.  Perhaps they mean to suggest that Judge Bunning--a federal judge--can order the defendants to comply with what the Governor now confirms are Kentucky statutory requirements, without regard to whether such noncompliance violates any federal rights.  But if so, they have not explained why the federal court has such authority to enforce state officers' compliance with state law.

Friday, November 20, 2015

Notes from a World Gone Mad

Mark Graber

I have been thinking of declaring myself a candidate for the Republican Party nomination for President of the United States.  The centerpiece of my campaign will be opposition to the Pythagorean Theorem.  This has got to be a winner in Republican circles, where candidates are judged by their capacity to challenge basic science.  Besides something called the Pythagorean Theorem is clearly foreign inspired and un-American.   Unsurprisingly, my fellow red-staters, liberals in the universities brook no dissent on that matter.

In order to demonstrate my credentials as a true contemporary Republican and improve my chances, I must narrow the electorate and refashion an America in my image.  My idea is that we should require all voters to take an oath that a) they believe in a religion that promises virtuous people the good place in the hereafter (can we really trust any one who does not believe) and b) that under no conditions does their religion ever command them to break the laws of the nation (can we really trust anyone who has a religious belief that might cause them to violate American law).  It is probably a good idea to apply the same policy to immigration.  And given that we do not want to take any chances with the wrong people in our country, the policy should be retroactive to, say, 1492.  The United States has done more than its fair share taking in refugees.  It is about time other countries took in the American refugees that do not meet my retroactive immigration standards.  It's time Switzerland and Nepal stepped up.

While we are on the subject of attacking universities, I think my campaign will seek laws forbidding colleges from memorializing any person who held the prejudices of their time.  This will, of course, get rid of Woodrow Wilson and John C. Calhoun, but also such figures as Elizabeth Cady Stanton (see her comments on immigrants and persons of color) and Frederick Douglass (see his post-Civil War comments on gender).  At one point I thought that these standards will still permit us to memorialize John Smith and Mary Jones and other stillborn children, but then I realized that this might trigger traumatic responses from women and men who have had stillborn children.  No doubt lots of statues and paintings will have to be removed, but like most true blooded Americans, I prefer football to art.  Of course, to retain college football, we have to retain colleges and teach something and inevitably that raises disturbing questions (has anyone noted how both modern social science and fraternities both privilege the Greek alphabet).  I will create a task force to figure this one out.

I think we also need to ban Christianity and related religions, with a possible Unitarian exception.  If we are truly committed to equal human dignity, we cannot have people speaking or even thinking that God will reward the religiously faithful more than those who practice some other religion or do not practice religion at all.  Consider in this vein the trauma non-Christians, many of whom had ancestors oppressed by Christians, must feel every time they witness a cross or similar garb.  Of course, we want people to be free to speak and believe what they believe to be true.  But we need to be sensitive on sensitive subjects and the mere fact that no person in the history of the world has ever exhibited the requisite level of sensitivity is no reason to lower our standards.  That would be un-American.

Of course, if these proposals are adopted, there will be very few living people left in the United States and those people will not be able to think or say much.  On the other hand, if our present politics continue, we are likely to experience an environmental or nuclear disaster that will also reduce dramatically the number of living people in the United States and their capacity to say much.  At least, my campaign promises a self-conscious effort to reach that dystopia.

The Government's Petition for Certiorari in the DAPA case, United States v. Texas

Marty Lederman

Here it is.  More to follow soon, but these are the Questions Presented:
The Department of Homeland Security has long engaged in “a regular practice * * * known as ‘deferred action,’” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999).  On November 20, 2014, the Secretary issued a memorandum (Guidance) directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents. 
The questions presented are:
1. Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action. 
2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
3. Whether the Guidance was subject to the APA’s notice-and-comment procedures.

Wednesday, November 18, 2015

Cruz-Thomas in 2016

Sandy Levinson

The Washington Post reports that Ginny Thomas, who is married to Justice Clarence Thomas, has endorsed Texas's (Princeton and Harvard educated) junior senator Ted Cruz for the Republican nomination.  I'm sure the endorsement was sincere and that no quid pro quo was involved.   That being said, it also occurred to me that a thoroughly plausible ticket in this extraordinarily peculiar political season would be Cruz-Clarence Thomas.  The only downside for Thomas would be his presumably having to resign from the Court in order to do it, thus leaving a vacancy to be filled by Hillary Clinton should she prevail.  (There is, of  course, no possibility whatsoever that President Obama could fill a vacancy that would arise only in June 2016.)  It would, however, certainly add clarity about what is at stake in the election.  In any event, you read it here first!

As for Cruz, incidentally, I increasingly think that he has a good chance of being the last man standing come next June.  In the political system in which I grew up, the favorite would clearly be John Kasich, a capable governor of a vital swing state, but that system appears to be dead.  Kasich's only hope is that Jeb! withdraws before New Hampshire and selflessly endorses Kasich instead of the young prince Rubio, but I certainly wouldn't bet on that happening.  Cruz's big hope has to be that he can come in first, even with only 32%, in the winner-take-all states following March 15 and that Trump, realizing he is not in fact going to get the nomination, will throw his support behind Cruz because Cruz has generally been "nice" to him. 

Perhaps Cruz would be tempted to pick snarly Carley as his veep, but I doubt it, since she's as cravenly ambitious as he is.  Thomas, on the other hand, would be perfect; a Cruz-Thomas ticket would allow Republicans to persuade themselves that we indeed live in a post-racialist color-blind society and prove it by voting for a Canadian-born Cuban-American and an African-American from Pinpoint, Georgia.  What could be more inspiring!

Court grants all seven nonprofit petitions in contraceptive coverage cases, henceforth to be collectively referred to as "Zubik v. Burwell" [UPDATED to include briefing schedule]

Marty Lederman

Today the Court decided not to decide among the seven petitions in the contraceptive cases--it granted (and consolidated) them all on the RFRA question.  The Court did not grant on the two questions alleging that the government has impermissibly discriminated among religious organizations, one of which (in Zubik) was nominally a RFRA question and the other of which (in Little Sisters) was framed as a First Amendment question.

The case will be argued some time between March 21 and March 30.  Presumably only one of the five counsel of record for petitioners will present oral argument--if I had to guess, it'll be Paul Clement or Noel Francisco.  (The Court itself ordinarily leaves it to the parties in such a situation to figure out a way to decide which counsel will argue.)  The Court has also asked the parties "to submit a joint proposal for briefing on the merits that will keep the number of briefs to a minimum and avoid repetition of argument."  Therefore I don't think we should expect to see 400+ pages of party briefs topside and 200+ pages on reply.  The petitioners might even decide to submit a single, unified brief at each stage.  [UPDATE:  The Court has granted the parties' proposal for briefing:
Petitioners in Nos. 14-1418, 14-1453, and 14-1505 will file one consolidated opening brief and one reply brief.  Petitioners in Nos. 15-35, 15-105, 15-119, and 15-191 will file one consolidated opening brief and one reply brief.  Petitioners’ opening briefs, not to exceed 20,000 words each, are to be filed on or before January 4, 2016.  Respondents will file one consolidated brief, not to exceed 22,500 words, on or before February 10, 2016.  Petitioners’ reply briefs, not to exceed 8,000 words each, are to be filed on or before March 11, 2016.] 
The decision of the Court will likely be captioned, and popularly referred to, as No. 14-1418, Zubik v. Burwell, which was the first of the petitions to be filed.  [UPDATE:  See my post here about who "Zubik" is, and offering a typology of the many different sorts of petitioners (and insurance plans) in the seven cases.]

"Mathematicians" and the Law

Mark Tushnet

I just finished reading "Mathematicians," a book of really striking photographs (by Mariana Cook) of world-class mathematicians. Each photo comes with a one-page statement by the subject about his or her life, mathematical interests, and the like. The descriptions of the mathematics are of course largely unintelligible to me; John Tate observes,"It is next to impossible to describe to a non-mathematician in any but the vaguest terms the solutions we have found and the puzzles we are trying to solve." But I did notice one thing that led me to think about academic law as a discipline.

A fair number of the mathematicians say that in the course of their work they have made more than a few mistakes -- pursued lines of analysis that didn't pan out, thought they had proved something when they hadn't, and the like. (The thought here is clearly stronger than the one Andrew Wiles articulates in connection with his proof of Fermat's Last Theorem, which in its initial version had a mistake that forced Wiles to do quite a bit more work before he eliminated the error.)

That led me to wonder whether academic law really has a category of "mistakes." One test that occurred to me was this: What's your estimate of the number of papers presented at workshops that are never published, just put back in the drawer, because the author[s] concluded that the paper was just wrong? My own estimate is "not many at all" (I don't exempt myself from this -- I do have a handful of papers in my "drawer" that I'm never going to publish because they didn't work out, but not many).

The self-defensive reaction is that the papers are published after they've been revised in light of criticisms made at workshops. Maybe so. And maybe, more important, academic law is fundamentally a rhetorical discipline, in the sense that the measure of an argument's "goodness" is whether it gets itself accepted in some segment of the academic community. If that's so, academic law really isn't going to have a category of "mistake," and the number of wrong arguments is going to be vanishingly small.

Still, honestly, do you think that no one has ever come up with an idea so bad that it shouldn't be published? Or an argument that just doesn't work? I don't. (In my field, there's major recent work about which the old snarky line is applicable: "This fills a much needed gap in the literature.")

Tuesday, November 17, 2015

The 17th Amendment and Federalism

Gerard N. Magliocca

In recent remarks at Princeton, Justice Scalia commented in a Q&A that federalism is dead and that the culprit was the Seventeenth Amendment, which ended the election of national Senators by state legislatures. While many conservatives hold this view and some have advocated the repeal of direct Senate elections, I think this is a false claim that rests on a misunderstanding of politics and history.

Try out a simple thought experiment. The California Legislature is controlled by Democrats, thus any Senator elected by them would be a Democrat. Does anybody think that this Democrat would be more interested in federalism than Diane Feinstein and Barbara Boxer are? I doubt it. Why is that?  Because Democrats in California share the views and interests of the national party for the most part.

The contrary view rests on what might be called the "Madisonian fallacy" that was addressed years ago in Pildes and Levinson's article on "Separation of Parties, not Powers." The article stated that Madison thought Congress and the President would check each other because people elected to those positions would come to identify themselves with those institutions. In reality, though, this is not what happens. The President and members of Congress care more about party unity or resisting the other party and use the weapons of the respective branches or parts of Congress to further that end.

Similarly, the Seventeenth Amendment story about federalism rests on the idea that state legislatures or the senators elected by them will identify primarily or largely with state governments. While this may happen every so often, most of the time these representatives would care more about national party goals, at least in the modern era of ideologically polarized parties.

Furthermore, the Seventeenth Amendment didn't actually do much to protect federalism. National power increased significantly from 1791 to 1913.  (In part, this was because in many states Senators ran the political machine that elected the state legislature, not the other way around.) Likewise, there is no indication that Senators thought differently about federalism once they were elected directly by the people, if you compare, say, 1920 versus 1910.

In the end, the Seventeenth Amendment explanation for increased national power reminds me of the conversation between two old actors.  One says, "The theater isn't what it was."  The other replies, "No.  And I'll tell you something else.  It never was what it was."


Sunday, November 15, 2015

Texas v. United States: Fifth Circuit declares President Reagan's immigration regulation unlawful

Marty Lederman

You read that right--President Reagan's immigration regulation.

What about the Obama Administration's controversial policy decision last year to refrain from removing (or deporting) so-called DAPA ("Deferred Action Parents of Americans and Lawful Permanent Residents") aliens?  You wouldn't know it from most press accounts, but the U.S. Court of Appeals effectively affirmed that Obama policy and practice concerning removals in its high-profile decision last Monday.  The court then proceeded, however, to hold that the Secretary of Homeland Security could not authorize employers to hire those same DAPA aliens, because the Reagan-era regulation that sanctions such hiring is "is beyond the scope of what the [immigration statutes] can reasonably be interpreted to authorize."

This important redirection of the case toward a challenge to the Reagan-era regulation involving work authorization has been in the works for a while:  As I discussed here back in February, both the district court judge and DAPA critics such as Michael McConnell had more or less come around to conceding that the statute gives the Secretary broad, unreviewable discretion to decide which aliens to remove from the country; they had therefore turned their sights more acutely on the "benefits" that are triggered by such deferred removal--in particular, DHS's approval of such aliens to be hired to work.  In his decision and injunction in February, for example, Judge Hanen stressed that the injunction does not require DHS to begin removing or “prosecuting” the aliens in question; he held instead that the Department had to engage in the notice-and-comment rulemaking process before it could confer work authorization for those aliens (even though the underlying regulation had been subjected to that notice-and-comment process many times over in the 1980's).

The court of appeals has now gone one huge step further--it holds not only that the hiring authorization for DAPA aliens must be subject to further notice and comment procedures, but also, on the merits, that the immigration statutes do not authorize the Secretary to permit such hiring.  Indeed, the court of appeals' rationale would invalidate all of the Department's (and the INS's) work authorizations for millions of "deferred action" aliens over at least the past 29 years, including the "DACA" aliens (certain young people who were brought to this country as children) who were recognized as authorized to work in 2012.  And that's not all:  the logic of Judge Smith's reasoning would appear to call into question DHS's work authorizations for many other categories of removable aliens, as well, in addition to those who are designated for "deferred" removal.  To take but one very significant example:  In 1990, the Bush Administration permitted employers to hire 1.5 million undocumented spouses and children of aliens, pursuant to its "Family Fairness" program.  And, like DAPA, the "Family Fairness" program covered approximately 40 percent of all then-removable aliens.  (See pages 14-15 and 31 of the OLC DAPA opinion.)  If the court of appeals' reading of the statute were correct, the Family Fairness initiative, as well as many other decisions over the years in which the Attorney General and the Secretary of DHS have authorized employers to hire classes of aliens other than those specifically enumerated in the statute itself, would not have been legal.  

How did we get here, to such a strange result that might so profoundly disrupt several decades of work authorization rules and practices?

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Thursday, November 12, 2015

Madison's Journal and the Appeals of Originalism

Richard Primus

Yesterday on this blog Heather Gerken posted thoughts about Madison’s notes from the Constitutional Convention, inspired by a seminar on Mary Bilder’s fine new book Madison’s Hand: Revising the Constitutional Convention.  I’d like to amplify, with specific attention to the puzzle of why Bilder’s point might bother some originalists.

Bilder’s book shows ways in which Madison’s journal is not a fully reliable guide to what happened at the Convention.  He had agendas in mind when thinking about how to present the Convention to posterity, and he revised his notes after the fact, and so forth.  Gerken notes that facts like these might raise challenges for originalists, even though the dominant schools of originalism today officially seek the public meaning of the document rather than the subjective intentions of the Framers and should therefore be more interested in the ratification debates than in anything that happened inside the Convention. 

I suspect that Gerken is correct that something in Bilder’s point will bother many originalists, even public-meaning originalists.  Not all originalists—I’m confident that some public-meaning originalists who are thoughtful and self-aware about their originalism won’t be rattled, precisely because they understand that on an original-public-meaning view there’s no reason to care whether Madison was an unreliable narrator of the Convention.  But I do think that many originalists would in fact by rattled by Bilder’s book and by the more general point it represents.  So it’s worth thinking a bit about just what the problem might be.  Why would originalists care that the journal is in many respects unreliable?

It may be worth deepening the mystery by pointing out that the unreliability of the journal shouldn’t be anything that a constitutional lawyer is only now discovering.  Without in any way taking away from Bilder’s contribution, we should note that the basic point that Madison’s journal is not a fully reliable narration of the convention is one that historians have understood for a very long time.  Max Farrand compiled his standard edition of the Convention’s records more than a hundred years ago, and his introductory materials candidly acknowledged that a number of his sources were deliberately altered by their authors—Madison included—after the fact.  (The joy of a book like Bilder’s is the way it digs in to the particulars of the problem.)

Perhaps most of the people who have cited Farrand in the century since have not read his methodological introduction at all, much less taken it to heart.  It is much easier just to crack open the books to a page that seems to record a discussion of a topic in which one is interested, read what is written, take that as what happened, and then cite that page in a brief or a law review article as if one is citing the Congressional Record (which also does not tell us everything we’d like to know about why what happens in Congress happens, but which at least is likely to tell us accurately what someone actually said on the floor of Congress). 

But notice that we as a profession don’t treat citing Madison’s notes as if it were a lazy lawyer’s corner-cutting, in the way that people with a certain kind of sense for rigor used to treat citations of Wikipedia before Judge Posner began making that business as usual.  The practice of treating Madison’s journal (even as presented in Farrand’s edition, with its methodological warning up front) as if it were a stenographic transcript of the Convention has been robust—lawyers and courts and law reviews cite Madison in Farrand as if it were proof that something happened, rather than as circumstantial evidence that the thing described or something like it might have happened. 

Here’s a hypothesis offered as a partial explanation—only partial, to be sure.  It’s that internalizing what we ought to know about the limits of Madison’s journal would mean admitting something deeply inconvenient about originalism—not about any particular theory of originalism, but about many of the reasons why originalism is appealing in the first place.  And by treating Madison's journal as if it were a stable narrative, we act in accordance with those same things that make originalism appealing.

Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask in the glory of the Founders, (3) the (Levinsonian) Protestant-democratic promise that we can go to the real, popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars, and (4) the sense, when one is immersed in the original sources, that one is in some way inhabiting the heroic world of characters whose stories are central to American national identity.  The idea that Madison’s journal is unreliable can threaten all four.  It threatens (1) in a diffuse but powerful way, by destabilizing a text that people as a matter of practice treat as if it were stable authority.  It threatens (2) because the idea that Madison deliberately shaded his story recasts him as a villain, or at least an angle-playing pol, rather than a statesman.  It threatens (3) because it reminds us that reconstructing history is difficult; it requires a lot more work than reading a text or two, and that recognition threatens to throw us back into the arms of a professional elite—a scholarly one—that has the skills and has invested the time to be able to say, with the sort of authority that Bilder’s book can command, when an old text can be trusted and when it cannot be.  And it threatens (4) because it reminds us that the long-ago heroic world of the Founders is considerably less accessible to us than we might have hoped.

To close with an amplification of the last point, consider how the basic threat of Bilder’s book mirrors the basic threat posed by Biblical scholars who show that the Bible is not a single text but a compilation of different texts by different authors taking different perspectives.  There’s a way in which any reader of the Bible should know that already, just like any reader of Farrand should know that nobody’s account of the Convention is fully reliable.  All that should be necessary in the Biblical case is to read the Four Gospels, which do not tell an identical story, or to notice that the first two chapters of Genesis tell the creation story in nonidentical ways, or that the text of the Ten Commandments in Exodus does not match the text of the Ten Commandments in Deuteronomy.  The last example might be particularly poignant for lawyers: you’d think that an authoritative statement of the law would at least get the text of the law right, and the failure to do so hints at the possibility that neither version is trustworthy.  But communities of the faithful often use the Bible in a way that calls for the Bible to be, among other things, an account of what actually happened.  So the awareness that the text we venerate cannot really do that is pushed to the side, either through consensus neglect or with feats of ingenuity designed to explain how multiple texts that apparently give different accounts of a thing are actually consistent.  (According to one rabbinic tradition, God at Sinai spoke the two versions of the Ten Commandments text simultaneously, so both accounts are true.  The point, of course, is that we shouldn’t think the sources unreliable—we should understand the underlying event to be yet more miraculous than we previously thought.)

To the extent that the appeal of either Bible study or originalism is its capacity to make us feel connected to a great revealed truth, we’d like the texts to be faithful representations.  We seem to want to go right on citing Madison, despite what we know or ought to know.  Perhaps because the appeal of the activity is not so different from the appeal of the other devotional-interpretive activity that it in so many ways resembles.

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