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April 27, 2017

UC Davis School of Law Launches New Water Justice Clinic

(Cross-posted from Legal Planet.)

UC Davis School of Law has launched an exciting new Water Justice Clinic designed to advocate for clean, healthy and adequate water supplies for all Californians.  The new Clinic is a project of the Aoki Center for Critical Race and Nation Studies, in partnership with the  California Environmental Law and Policy Center, and will offer unique environmental justice advocacy opportunities for King Hall students.

Currently, over one million California residents lack access to clean, safe, and affordable drinking water.  An overwhelming percentage of those residents live in rural California, and represent communities of color.  The barriers to accessing clean water are not limited to environmental issues, and lack of access to water imposes a significant financial burden on low-income families, while also resulting in increased rates of obesity, shorter life expectancies and decreased learning outcomes for children.

However, very few rural legal services attorneys are able to litigate water law cases, and no legal services attorneys offer transactional legal support to these California residents.  King Hall's Water Justice Clinic seeks to fill that gap by identifying viable drinking water solutions and then implementing those solutions by providing transactional legal support to the affected low-income, rural communities.

Prominent environmental justice expert Camille Pannu has been recruited to lead the Water Justice Clinic as its inaugural director.  Pannu, a Berkeley Law alum, was passionate about environmental justice issues even as a law student.  After law school, Pannu worked on environmental justice cases for the Center on Race, Poverty & the Environment as an Equal Justice Works Fellow in the San Joaquin Valley.  Before coming to King Hall, she also clerked for District Judge Stefan Underhill in Connecticut and Ninth Circuit Court of Appeals Judge Richard Paez.

The overarching goal of the new Clinic is to insure that all Californians have access to clean, affordable and safe drinking water, primarily by strengthening rural community water systems.  The Clinic will also advocate for policies that fund needed improvements to those systems, address groundwater contamination, and ensure that rural voices are fully represented in future California water management decisions.

Recent headlines about the drinking water scandal in Flint, Michigan and--closer to home--the water crisis faced by East Porterville residents in the southern San Joaquin Valley have prompted action by California legislators and voters to confront those problems directly.  Proposition 1A on California's November 2014 ballot contained funding to provide assistance to California's disadvantaged communities, and King Hall's Water Justice Clinic is made possible by a three-year grant of Proposition 1A funds by the State Water Resources Control Board.  Indeed, the Clinic is the primary legal services provider among the organizations funded by these Proposition 1A grants.

Clinic Director Pannu reports that King Hall students will play a critical role in assisting these communities by enrolling in the clinical program each semester.  There they will partner with grassroots community organizations such as the Community Water Center, while also obtaining classroom training from Pannu in water justice and related issues.

April 21, 2017

Flores v. Sessions: UC Davis Immigration Law Clinic goes to the Ninth Circuit, Defending the Rights of Detained Children

Cross-posted from Immigration Prof Blog.

Earlier this week, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in Flores v. Sesssions in which the U.S. government seeks an emergency stay in an action involving the 1997 Flores Settlement Agreement, which addressed the treatment of minors in custody of the Department of Homeland Security.  The Flores litigation has been going on for years and this appears to be a last ditch attempt by the U.S. government to detain noncitizen minors -- which increased with the increase in Central American asylum-seekers in 2014.   The panel that heard arguments were Judges Stephen Reinhardt, A. Wallace Tashima, and Martha Berzon.   

Law student Fabián Sánchez Coronado '18 attended the argument and wrote about the experience.

From L-R: Michael Benassini '18, Holly Cooper '98 of the Immigration Law Clinic, Carlos R. Holguín of the Center for Human Rights and Constitutional Law, Eduardo Osorio '18, and Fabián Sánchez Coronado '18.

On April 18, 2017, myself and other students from the Immigration Law Clinic and Civil Rights Clinic had the opportunity to attend Oral Argument at the Ninth Circuit Court of Appeals for Jenny Flores v. Jefferson Sessions, III, a case dealing with the rights of children in immigrant detention. 

The case arises out of a 20-year settlement agreement - the "Flores Settlement" - between plaintiffs and the government. At issue is Paragraph 24 of the Flores Settlement, which guarantees minors in detention the right to a bond redetermination hearing.

Last summer, the Immigration Law Clinic's Co-Director, Holly S. Cooper '98, teamed up with Carlos R. Holguín, General Counsel at the Center for Human Rights and Constitutional Law, to bring an enforcement action in federal court after the government refused to comply with its duties under the settlement, thereby denying detained children basic due process. 

On January 20 of this year, Judge Dolly M. Gee of the U.S. District Court for the Central District of California granted the motion to enforce the settlement. Weeks later, the government filed an emergency motion in the Ninth Circuit to stay the District Court's order, paving the way for a renewed fight over the rights of children in immigrant detention. 

After the Ninth Circuit granted the stay and expedited briefing, a group of us from the Immigration Law Clinic and the Civil Rights Clinic rolled up our sleeves and got to work, helping Professor Cooper and Carlos Holguín prepare the case. Wesley Cheung '18, Eduardo Osorio '18, Michael Benassini '18 and I helped ready the Plaintiffs' brief and prepare the materials for Oral Argument. 

The experience of working on an appellate brief - and attending oral argument at the Ninth Circuit - was a highlight for me, as I'm sure it was for my fellow law students. After spending the academic year working on various immigration and civil rights cases with our respective clinics, it was great to sit at counsel's table for this particular occasion.

April 21, 2017

My Testimony before the Assembly Higher Education Committee

Earlier this week, I testified before the California Assembly Higher Education Committee on April 18 in support of Assembly Bill 856, which seeks to diversity faculty and athletic coaches at California universities. These were my remarks.

***

Thank you, Chair and Members.

My name is Rose Cuison Villazor and I am a Professor of Law at UC Davis.

I have been a law professor for eleven years and I have been teaching at UC Davis for five years. 

As the only Filipino American law professor in a public university and, indeed, the entire state of California, I come before you today in support of AB 856, which would increase faculty diversity at California public Universities and Colleges.

I have seen first hand the need to increase diversity amongst faculty at California schools.

According to the Association of American Colleges and Universities, "Faculty, along with staff, serve as an institution's front-line representatives, and in the academic realm, faculty are also the embodiment of authority on campus. Having a diverse faculty ensures that students see people of color in roles of authority and as role models or mentors. Faculty of color are also more likely than other faculty to include content related to diversity in their curricula and to utilize active learning and student-centered teaching techniques."

A diverse faculty helps close achievement gaps, improves campus climate, and creates new curriculum and research.

Having a faculty reflect the student population benefits students' growth and has a positive impact on their learning experience. 

Currently, in states where affirmative action has been banned, including California, universities have introduced new admissions and financial aid strategies based on socioeconomic status.

Similar initiatives can be applied to the hiring process at California schools.

I thank the author for bringing this measure forward and respectfully ask for your AYE vote.

April 21, 2017

Study Finds Litigants Are in the Dark about Court Dispute Resolution Programs

As court systems throughout the country struggle to deliver civil justice in the face of major budget cuts, a new study by a University of California, Davis, law professor finds that fewer than one-third of people with cases filed in state court even know about their court's mediation and arbitration programs.

In recent years, state courts have been overburdened with litigants seeking civil justice in a system still recovering from the economic downturn. In many cases, alternative dispute resolution procedures such as mediation and nonbinding arbitration can provide litigants with relief from the expense and waiting time associated with trial. However, such procedures provide little opportunity for justice to litigants who are unaware of their existence.

Over 330 litigants from three state courts were asked in a phone survey, after their cases ended, whether their court offered mediation or arbitration. All study participants had cases that were eligible for both procedures through their court.

"The findings from this study raise serious questions about whether plaintiffs and defendants understand what procedures are available to them, and how meaningfully they participate in decisions about how to handle their legal conflicts," said Donna Shestowsky, a UC Davis professor of law who is the report's author.

The study, forthcoming in Harvard Negotiation Law Review, found that only 24 percent of litigants correctly reported that their court sponsored mediation, and only 27 percent correctly stated that their court offered arbitration.

Even worse, represented litigants were not significantly more likely to know about their court's procedures than were those who handled their case without a lawyer.

Litigants who knew their court offered mediation had more favorable views of their court, but a similar result did not emerge for arbitration.

The study also found that when litigants correctly identified their court as offering arbitration, they were more than twice as likely to consider using arbitration for their case.

"The study suggests that courts should invest resources to ensure that litigants know about their procedures. By making these efforts, litigants might be more apt to consider using the programs in which the courts have already invested, and give courts the credit they deserve," said Shestowsky.

Shestowsky's project is the first known multijurisdictional study to explore how civil litigants assess procedures at various points of time during the same lawsuit. 

The article, "When Ignorance Is Not Bliss: An Empirical Study of Litigants' Awareness of Court-Sponsored Alternative Dispute Resolution Programs," is forthcoming in volume 22 (spring 2017) of the Harvard Negotiation Law Review.

The study was funded by grants from the National Science Foundation, the American Bar Association Section on Litigation, the Norm Brand '75 & Nancy Spero ADR Research Fund, and UC Davis.

April 13, 2017

King Hall Faculty Wow the Crowd at Aokirama, Are Featured in Above the Law

Last weekend brought one of the most-anticipated student events of the academic year: Aokirama (formely Cardozorama), the law school talent show!

One of the biggest hits of the evening was the band Negotiable Instruments, featuring:

Prof. Angela Harris (vocals) as law professor
Prof. William Dodge (vocals) as law student
Rose Cuison Villazor (drums)
Thomas Joo (guitar)
Carlton Larson (piano)

Check them out here on YouTube!

Popular legal blog Above the Law took notice, soliciting submissions for its annual video contest by writing, "Hey law students - if your professors can do it, so can you!"

 

April 13, 2017

A Field Trip to Bodega Bay

On Friday, April 7th, I had the opportunity to lead my King Hall Ocean and Coastal Law students on a field trip to the UC Davis Marine Biology Laboratory in Bodega Bay, California.  The Lab, founded by the University of California a half-century ago, is the site of pioneering marine science research by UC Davis faculty and graduate students who work at the Lab.

During our visit, my law students received an overview of the Lab's history and operations from UCD Professor and Marine Lab Director Gary Cherr.  We also heard substantive briefings from two post-graduate UCD researchers, who shared the status and findings of their marine science projects.  Director Cherr provided our group with an extensive tour of the Lab and surrounding area, which are part of a UC-owned marine reserve located on a spectacular peninsula extending into the Pacific Ocean on the Sonoma County coast.

Last week's field trip afforded our law students first-hand exposure to the marine science research that serves as much of the foundation of Ocean law and policy that they've been studying this semester at King Hall.  Additionally, it provides our students with invaluable exposure to scientists: learning to work effectively with experts from a variety of disciplines is essential to a successful environmental law practice--and an essential part of King Hall students' legal education.

March 30, 2017

Opinion Pieces by King Hall Faculty

King Hall faculty serve as regular contributors of opinion pieces to the media. Here are a few recent examples.

Dennis J Ventry, Jr. in The New York Times: Why Steven Mnuchin Wants a Stronger I.R.S.

"President Trump's Treasury secretary, Steven Mnuchin, knows that investing in the Internal Revenue Service yields significant returns - he said as much during his confirmation hearings. And he's right: Every dollar spent on the agency returns $4 in revenue for the federal government, and as much as $10 when invested in enforcement activities.

Mr. Mnuchin's boss doesn't seem to care, but he should. And not just because the I.R.S. more than pays for itself. Cutting funds for the I.R.S., which has already endured years of budget cuts, would make it impossible for the president to pay for things he says he cares about, including infrastructure, Social Security and the military."

Kevin R. Johnson in The Sacramento Bee: Cuts to legal services for rural, poor people would hurt those who helped elect Trump

"President Donald Trump's proposed budget calls for the elimination of all funding for the Legal Services Corporation, the nation's single largest funder of civil legal aid to low-income people. The proposed cut would hurt the poor, rural voters who helped elect him.

Legal Services Corporation works to ensure that low-income Americans have access to much-needed legal assistance. It is often the sole lifeline for vulnerable people with legal problems that affect their health, housing, safety and economic security.

Continued funding makes basic fiscal sense: LSC delivers far more economic benefits to the country than what it costs to support the program."

Kevin R. Johnson in Salon: Debating the big questions on immigration: What rights do immigrants have - and is the President free to bar them?

This was an online panel for Salon, in which Dean Johnson was a participant.

"Here to add nuance to the immigration debate are three of the nation’s foremost experts on immigration, criminal justice and constitutional law, taking on not only what we already know about Trump’s travel ban and deportation policy but also expected future initiatives from this administration. These scholars address the thorniest issues in immigration, the ones at the root of our present crisis, with all the ballast we need to oppose simplistic talking points: Should immigrants, regardless of status, have constitutional rights? How solid in law and morality is Trump’s reliance on the plenary power doctrine to implement far-reaching changes? Is Trump’s deportation policy an anomaly, or does it have roots in recent bipartisan legislation? And what can the states, as a last resort, do to counter federal anti-immigration initiatives?"

March 30, 2017

Budding Conflicts: Marijuana's Impact on Unsettled Questions of Tribal-State Relations

As part of a symposium entitled "One Toke Too Far: The Horizontal-Federalism Implications of Marijuana Legalization Symposium," my article "Budding Conflicts: Marijuana's Impact on Unsettled Questions of Tribal-State Relations," will appear in the Boston College Law Review (forthcoming 2017). (There seems to be an unwritten rule that every piece of marijuana-related legal scholarship must contain a pun.) 

Tribes are currently in an uncertain situation with respect to marijuana legalization. A December 2014 decision by the Department of Justice to deprioritize enforcement of federal marijuana laws against tribes as well as states prompted many tribes to revisit their policies toward marijuana. Some tribes opted to legalize marijuana for medical and/or recreational purposes under tribal law, while others went still farther by planning commercial marijuana enterprises. The Flandreau Santee Sioux Tribe in South Dakota, for example, hoped to launch the nation's first "marijuana resort," complete with a smoking lounge and a shuttle service for guests who wished to avoid driving under the influence. Other tribes occupied the opposite end of the spectrum. The Yakama Nation, which has maintained a strict policy against drugs and alcohol for decades, chose to strengthen its anti-marijuana laws in the wake of Washington's move toward legalization.

In many cases, tribes' efforts to go their own way on marijuana policy have sparked clashes with nearby states. The Flandreau Santee Sioux had to abandon their resort plans after they met with intractable opposition from state and federal authorities, who worried that non-tribal residents of South Dakota (where marijuana is illegal) would be lured onto the reservation. The Yakama Nation is currently engaged in litigation to stop Washington marijuana vendors from doing business on off-reservation lands where its members hunt and fish. Such jurisdictional conflicts are, of course, nothing new; they arise in the interstate context all the time. But they are exacerbated in the state-tribal context for two reasons: the tremendous uncertainty that exists about the proper scope of state and tribal regulation in Indian country and the absence of the formal and informal mechanisms - such as, to take perhaps the most important example, the Full Faith and Credit Clause - that help mediate comparable interstate friction. In my article, I discuss the reasons why state-tribal conflicts over marijuana may be particularly intense and suggest avenues for smoothing state-tribal relations, including clarification of tribes' regulatory authority and possible federal legislation that could draw on the experience of the Indian Gaming Regulatory Act while avoiding its mistakes. 

When tribes set their own marijuana policy, they can both express their own sovereign values and serve as useful "laboratories of democracy" in an era when attitudes and legal approaches toward marijuana are changing quickly.  Fully achieving these goals, however, will depend on finding better ways to resolve state-tribal policy disputes.

March 27, 2017

Reverse Political Process Theory

This post is about an article entitled Reverse Political Process Theory, which will appear in the Vanderbilt Law Review (forthcoming 2017).

The article is the first of two papers to take up an intriguing phenomenon at the Supreme Court: the Court's recent practice of granting what seems to be special, heightened constitutional protections to politically powerful entities. 

This observation may strike some as counter-intuitive.  After all, when one thinks of political power in constitutional law, the reflexive move is to consider Footnote 4 of Carolene Products and John Hart Ely's political process theory, under which politically powerless discrete and insular minority groups are to receive special constitutional solicitude.  But the reality is that the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. One need only consider as evidence the series of decisions in the late 1970s and 1980s reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, or the Court's more recent decision in Obergefell v. Hodges upholding the right to same-sex marriage based primarily on the fundamental nature of marriage, rather than the political status of gays and lesbians.

I argue in the Article that the Court has gone further than to merely reject the notion that powerless discrete and insular minority groups alone should be entitled to heightened judicial solicitude. In multiple doctrinal areas, the Court has reversed the theory's core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process-all the while withholding similar protections from less powerful counterparts.  For example, the Supreme Court has recently granted large corporations a special defense against general personal jurisdiction under the Due Process Clause, allowing powerful, multi-national businesses to evade suit in U.S. forums despite having far more extensive contacts there than small business and individual defendants.  Similarly, the Court has afforded sovereign defendants a far more generous rule when it comes to interpreting waivers of their rights than it has with respect to waivers of rights possessed by (often indigent) criminal defendants.

After identifying these doctrinal developments, the Article offers an evaluation of the Court's long and tumultuous relationship with political process theory. I conclude that even if one opposes the idea of granting heightened constitutional protections to the powerless-perhaps because one believes judges cannot avoid substantive value judgments when deciding which groups are so weak as to warrant extraordinary protection from the democratic bazaar-attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves.

March 24, 2017

The Complexities of a “Motive” Analysis in Challenging President Trump’s Executive Order Regarding Entry to the United States

By Vikram Amar and Alan Brownstein

Cross-posted from Justia.com:

One of the vexing legal questions raised by President Trump's original and revised executive orders concerning entry into the United States by nationals of several Middle Eastern and African countries is whether and how courts ought to take into account the subjective motives behind the executive order, whether or not these motives are reflected in the text of the orders themselves. Many people think of the executive orders as "Muslim bans"-even though there is no mention of Muslim peoples in the orders themselves-because they credit rhetoric prior to the executive orders that may tend to suggest anti-Muslim sentiment has been on the president's mind as he has crafted these entry limitations. (For these purposes critics are asserting that a desire to exclude persons from one religious group would be impermissible, although in the immigration setting that proposition might be a contested question.)

Permissible (and Impermissible) Uses of Motive to Strike Down Laws

Consideration of direct evidence of impermissible subjective motive has been a confused area of constitutional law. Courts have often expressed-as the Supreme Court did in United States v. O'Brien, the case involving a famously unsuccessful free speech challenge to a federal law prohibiting destruction of draft cards-a reluctance to use extrinsic proof of invidious motive to strike down laws that would otherwise pass constitutional muster. Courts have offered a variety of reasons for their wariness to look into motive. One is that courts would be in the position of accusing co-equal branches of pretext and dishonesty (or at the very least unawareness of their own true motivation), and that can create friction between the branches. (Think of how courts have reacted to President Trump's allegations of judicial dishonesty.) Another is the idea that a president or legislature whose action is struck down because of a bad motive can simply reenact the policy for a good motive, in which case courts will have to uphold the new enactment, raising the question why it was worth the hassle to invalidate the action in the first place. (One rejoinder to that is that courts won't always be convinced that the second enactment is taint-free, and may not uphold it. Another is that if the second enactment is adopted for pure rather than invidious reasons, it is a qualitatively different enactment insofar as motive, and the way the polity understands it, is an essential part of a law: Justice Holmes once reminded that even a dog knows the difference between being kicked and being tripped over.)

Yet another reason proffered for refraining from motive analysis is that the motive of many legislative bodies is hard to discern-in Congress, there may be hundreds of motives of hundreds of legislators in enacting a particular law. For these and other reasons, even when some justices want to look at subjective evidence of motivation (as with Justice Kennedy's opinion in the Florida case involving an anti-animal-sacrifice law that was struck down for violating free exercise of religion principles), other justices decline to join them in doing so.

Notwithstanding these concerns, however, courts have been willing to accept direct proof of impermissible motive in certain doctrinal areas. Perhaps the most prominent is the equal protection norm of the Fourteenth and Fifth Amendments. When a facially neutral law that draws no problematic classifications between groups can be shown to have a disparate impact against certain classes, and when there is strong enough evidence that a desire to harm those groups was a driving factor behind the law's enactment, courts have been willing to strike those laws down. The evidentiary threshold a challenger must satisfy is high, but at least the courts are open to the evidence if a strong case is made.

A second (and perhaps similarly equality-driven) area of jurisprudence where the Court has made use of subjective evidence of improper motive is the Establishment Clause of the First Amendment. Unlike in the Free Exercise Clause setting mentioned above, the Court in several Establishment Clause rulings has explicitly required that government's motive be either secular, or at the very least not a desire to favor some sects over others. In Wallace v. Jaffree, the Court struck down an Alabama law mandating a moment of silence at the beginning of public school classes because the Court concluded, based in significant measure on historical evidence and legislative history, that the law was a backdoor attempt to reintroduce prayer in the schools. And in McCreary County v ACLU of Kentucky, the Court invalidated the placement of a Ten Commandments display on public property, again in part based on a conclusion of improper motives of religious favoritism. These are the cases (again, assuming they apply in the immigration setting) on which challengers to President Trump's executive orders have been relying.

In short, courts appear to weave their way through many complex factors in evaluating claims based on invidious or impermissible motives. Even in equal protection cases, where the Court has remained nominally open to claims of invidious motivation, the size of the decision-making body may be critical to whether a case can be made. As the Court explained in Hunter v. Underwood, "the difficulties in determining the actual motivations" of a governing institutional body increase substantially when a claim is brought against the U.S. Congress as opposed to a county board of commissioners.

Thus, the nature of the constitutional claim, the size of the decision-making body, and the persuasiveness of the extrinsic evidence of impermissible motive will all be considered, with different factors controlling the Court's analysis in various cases. In Hunter, for instance, the Court struck down on equal protection grounds a provision of the 1901 Alabama Constitution denying the right to vote to any person convicted of a crime involving moral turpitude, because the Court found that the all-white state constitutional convention that adopted the provision did so with the intent of disenfranchising black residents in particular. The large size of the convention did not insulate it from an equal protection challenge given the strength of the historical evidence establishing the invidious motivation of the convention participants.

On the other hand, the size of the decision-making body may have been critical in some free speech cases. As noted, the Court in O'Brien downplayed the idea that an act of Congress could be struck down because of the intent of some legislators to enact it for the purpose of suppressing protected speech. Yet in cases involving much smaller decision-making bodies, such as Mt. Healthy City School District v. Doyle, the Court recognized that a teacher could assert a valid free speech claim challenging the school board's decision not to rehire him if the teacher could show the board was punishing him for protected speech in which he had engaged.

President Trump's Executive Orders Restricting Immigration

Viewed against this complicated and somewhat indeterminate background, several factors could be relevant to the challenges to President Trump's revised executive order that are based on an alleged intent to further a constitutionally impermissible purpose-religious discrimination against a particular faith community. To begin with, the authority to issue an executive order rests with one person alone, the President of the United States. Thus, struggling to determine the intent of a large body is not a problem here.

Further, the challenge to the order is based on the Establishment Clause, an area of law in which there is significant precedent accepting direct inquiry into government motive as the basis for evaluating and invalidating state action. Indeed, this dimension of the Establishment Clause, the prohibition against discrimination against minority faiths, overlaps and resonates with equal protection doctrine. As we have explained, there is probably no area of constitutional law in which direct inquiry into motive has been more accepted than equal protection jurisprudence adjudicating claims against invidious discrimination.

Finally, it should be clear that attempts to structure a law to mask improper intent do not always insulate impermissibly motivated state action from constitutional review. In Hunter, historians documented how the Alabama constitutional convention had an anti-black agenda on their minds, even though the disenfranchisement provision in question was written more broadly and more neutrally. Thus, the fact that the president might have drafted the new order to scrupulously avoid reference to religious discrimination, while relevant, is not necessarily dispositive.

Other Factors at Play

There are, however, several open legal questions that may very well support a court's decision to uphold the President's order. One large question, noted above, is whether domestic Establishment Clause norms apply with full force in the immigration setting. In Kleindienst v. Mandel, the Court wrote: "We hold that when the Executive exercises [the power to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will n[ot] look behind the exercise of that discretion . . . ." Ultimately, succeeding with an Establishment Clause claim with require grappling with this high level of judicial deference.

Another issue is whether statements made during a campaign by a candidate for office should be considered reliable evidence as to the official's intent after he is elected and adopts policies. Statements made during the heat of a campaign are arguably different than statements made during official deliberations by elected representatives. There is certainly a plausible argument that what is said during a campaign stays in the campaign and does not carry over as an indication of intent after an official is elected.

While this contention has considerable force, there is an argument on the other side. Much of what an elected official says has a dual audience; the government actors he is trying to influence to secure adoption of a regulation and the constituency who elected him whose support will be necessary if he is to stay in office. Elected officials are always at least in part in campaign mode. It might be difficult to state a clear rule about what evidence of invidious intent will be inadmissible campaign rhetoric and what may be considered to be probative in the adjudication of constitutional claims. This is particularly the case when one recognizes that one candidate campaigning for office is often an incumbent whose campaign and "official" statements are inherently intertwined.

Two other related issues may be even more difficult to resolve. As noted earlier, one argument against invalidating a regulation based on direct inquiry into legislative motive is that the same law in most cases could have been adopted for legitimate reasons too. The adjudication of the president's executive order presents a stark example of this problem. What evidence must be presented by the government to convince a court that, even if President Trump did or does harbor some anti-Muslim sentiment, the same order would have been issued even in the absence of such intent? If any established impermissible intent ended up not being a "but for" cause of the executive order, then it should not be a basis of invalidation. But the government may have to present a fair amount of evidence of objective reasonableness to rebut the influence of invidious motives-if the courts recognize and care about such motive claims in this setting.

Finally, if an impermissible motive was a driving force behind the initial order, has it dissipated such that the revised order should be free from its taint? Time would obviously be one factor to take into account in answering such a question. But how much time? And what other factors? Changes in the contours of the policy that seek to make it more neutral? A formal acknowledgement by the president that he shouldn't take into account religious favoritism? The fact that the regulation was evaluated and supported by government officials and agencies other than those who initially endorsed it for impermissible reasons? These are complex questions that appellate courts may have to address in this setting if, and this is a significant if, they allow a motive-based Establishment Clause challenge to immigration orders to go forward.