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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.

 

February 17, 2017

Op-Eds on the Trump Administration by King Hall's Constitutional Law Faculty

King Hall faculty continue to make many media appearances and write opinion articles following the election of Donald Trump as President. Hot topics range from immigration and the environment to human rights and treason.

Here are recent op-eds by two of our Constitutional Law faculty.

"Congressional Caution Is Needed" by Alan Brownstein in U.S. News & World Report

Brownstein writes about President Trump's call to repeal the Johnson Amendment, a tax code provision prohibiting tax exempt nonprofit organizations from engaging in political campaigns for electoral candidates: ""Americans are more than political antagonists. We can see each other as people and families with far more in common with each other than the political disagreements that divide us.  To do that, we heed to have neutral spaces where we can leave partisan divisions behind us.  Charities should be places where our common humanity and the American virtues we share of generosity and service come to the fore. Houses of worship should be places where we are neither Democrats nor Republicans, but rather people joined in humanity and humility in spiritual fellowship and worship."

"Five Myths about Treason" by Carlton Larson in The Washington Post (This piece was posted online today and will appear in Sunday's print edition.)

An excerpt: "The Trump administration promised to do things differently, but the resignation of a national security adviser under a cloud of suspicion of treason was novel even by Trump standards. The political landscape is now littered with accusations of treason, not just against Trump officials but against all kinds of other political actors as well -- Hillary Clinton, Mitch McConnell, even the state of California. Treason is an ancient concept shrouded in misconceptions. Here are a few."

July 5, 2016

United States v. Texas: The Supreme Court Punts, Returns the Political Question of Immigration Reform to Congress

By Kevin R. Johnson

[Crosspost from ImmigrationProf Blog]

A little over a week ago, an equally divided Supreme Court left intact a lower court injunction barring the implementation of a major immigration initiative of the Obama administration. The program and litigation had proven to be controversial. Not surprisingly, most of the voluminous commentary about the case has focused on the power of the President vis-à-vis Congress to regulate immigration, the plight of the undocumented immigrants who might have been eligible for temporary reprieve under the program, the role of the states in future immigration policies, and related issues.

It should not be surprising that little of the commentary has focused on the real legal issues before the Supreme Court. Raising legal issues that only a law professor could love, the case really is about something much deeper and much more important to the United States. The case is simply the latest skirmish in the long political debate over immigration reform. As seen with the recent Brexit vote – in which concerns with immigration contributed to passage of a referendum removing the United Kingdom from the European Union, American immigration politics – as historically has been the case -- can be messy, divisive, and heated.

With no success, Congress has debated comprehensive immigration reform bills for more than a decade. Some versions of the reform bills would have offered a path to legalization for the 11-12 million undocumented immigrants living in the United States. Various incarnations of the DREAM Act would have provided relief to undocumented youth.

Because of the lengthy stalemate in Congress, President Barack Obama announced measured, limited, and temporary steps to address some of the issues facing this nation’s undocumented immigrants.

In November 2014, the Obama administration announced a “deferred action” program, Deferred Action for Parents of Americans (DAPA) for the undocumented parents of U.S. citizens and lawful permanent residents. The program built on the previous Deferred Action Program for Childhood Arrivals (DACA) program, which was implemented in the summer of 2012. DACA provided limited and temporary relief to hundreds of thousands of undocumented young people and was viewed as a ray of hope at a time when improvements through congressional action looked bleak. DAPA would have provided similar relief to many more.

“Deferred action” is fancy language that means that the U.S. government will not focus on removing undocumented immigrants who are otherwise law-abiding. It is a kind of prosecutorial discretion routinely employed by government in the enforcement of the law. Deferred action is not a path to legalization or citizenship and should not be mistaken as some kind of “amnesty.” It instead is a temporary reprieve from removal, revocable at the will of the Executive Branch (and thus by a new President).

Nobody, including President Obama, disputes that only Congress could create a durable path to legalization or citizenship for undocumented immigrants.

Although cloaked in the language of the law, the simple truth of the matter was that the Republican governor of Texas and 26 states did not agree with the Democratic administration’s policy choices. And, politically, they had little use for President Obama. They sued in federal court to put the immigration plan on hold and ultimately ended one of the Obama administration’s signature immigration measures. Fortunately, the Supreme Court with its even split did not create precedent that would allow the states in the future to pursue litigation for partisan political ends.

In the end, what began as a political question will return to the political arena after the Supreme Court’s non-decision in United States v. Texas. The question of immigration reform will return to Congress.

But even if the Supreme Court had upheld the administration’s immigration programs, Congress would still have needed – as it does now -- to address immigration reform. Deferred action does not offer permanent relief for the millions of undocumented immigrants like that which would be provided by many comprehensive immigration reform proposals. Indeed, a future president – a President Donald Trump, for example – might try to deport any and all deferred action recipients.

As the outcome of United States v. Texas should make clear, congressional action is necessary to reform the immigration laws. As most knowledgeable observers agree, the mass deportation of the millions of undocumented immigrants who are parts of our communities simply is not feasible. Consequently, some kind of path to legalization of undocumented immigrants is needed. Most informed observers further agree that reform of the legal immigration provisions of the laws is needed. Last but not least, many Americans believe that we need better enforcement measures All of these aspects of immigration reform raise thorny political questions that require careful deliberation and rational discourse..

In the end, the nation needs to think about how we achieve meaningful and lasting immigration reform that works.

March 17, 2016

Live Stream Panel Discussion: The Legal and Political Implications of Replacing Justice Scalia

King Hall hosted an outstanding panel discussion yesterday on the Supreme Court nomination process, nominee Hon. Merrick Garland, and the jurisprudence of the late Justice Antonin Scalia.


Photo courtesy the law school's Instagram. Follow us on Instagram @ucdavislaw!

The participants were (left to right): Rose Cuison Villazor, me, Alan E. Brownstein, Albert C. Lin (a former Garland clerk!), Courtney Joslin, and Carlton F.W. Larson. We had a wide-ranging discussion about issues including originalism, Justice Scalia's jurisprudence regarding the separation of church and state, immigration, family law, and the Second Amendment, as well as the likely political battles ahead for Judge Garland, President Obama's nominee.

The event was live-streamed and archived on on YouTube. Watch it now!

Thanks to the student chapter of the American Constitution Society (ACS) and Aoki Center for co-sponsoring the panel!

February 22, 2016

Confirmation and Clarity

Cross-posted from Dorf on Law.

Following the untimely passing of Associate Justice Antonin Scalia, the nation is engaged in a vigorous debate over whether the Republican-controlled Senate should confirm President Obama's nominee to replace Justice Scalia on the Supreme Court (President Obama has made it quite clear that he intends to nominate a successor).  Senators (and presidential candidates) Ted Cruz and Marco Rubio have both argued strongly against even voting on a replacement nominated by President Obama, leaving the decision for the next President.  Senate Majority Leader Mitch McConnell has also expressed this view, though other Republican Senators are waffling.

The discussions about historical precedents have become frankly tedious (and entirely partisan).  They are also beside the point.  There is no doubt that the Senate has the power to refuse to vote on a nominee, or to vote down a nominee, for purely partisan reasons or to await an election.  And what path the Senate does eventually walk will undoubtedly turn on a political calculation by the Republican leadership rather than either precedent or principle.  That is politics.

What I want to address is a separate matter, which is the practical, legal consequences of a decision by the Senate to refuse to confirm any Obama nominee. It is now February of 2016.  The Supreme Court holds one term a year, beginning on the First Monday in October, and ending in June or early July (the Terms are named for the October in which they start, so we are in the October 2015 Term, or OT 2015 in the jargon).  The last oral arguments for OT 2015 will be held on April 27.  That means that unless a new Justice is nominated and confirmed before that date, the appointee cannot participate in any case before the Court this Term.  Given the current atmosphere on Capitol Hill, clearly that is not going to happen.  So, almost all the cases this Term (excepting those decided before Justice Scalia's death) will be decided by an 8-Justice Court, split evenly between appointees by Republican and Democratic Presidents.  Given the hugely important issues pending before the Court currently (including the future of public sector unions, abortion regulation, affirmative action, and the President's immigration policies, to name just a few), that is very unfortunate.

But it gets worse.  Whoever wins the 2016 presidential election will be inaugurated on January 20, 2017 (per the Twentieth Amendment).  Even if the President-elect has focused on the question of a nominee to replace Justice Scalia before taking office, a proposition which is far from clear given the complexities of any presidential transition, realistically the earliest he/she could send a nomination to the Senate would be early February of 2017.  Then, hearings must be held and a vote taken.  It took 87 days for the Senate to confirm Justice Kagan, 66 days for Justice Sotomayor, and 82 days for Justice Alito.  They are the three most recent nominees on whom the Senate has held a vote, and the only relevant case studies since the 1990s (Chief Justice Roberts does not count because his nomination to an Associate Justice position on the Court had been pending for quite some time before Chief Justice Rehnquist died and he was re-nominated to the Chief Justiceship). Given that partisan rancor has hardly decreased since Kagan's nomination in 2010, this means that we can expect around two-and-a-half to three months at a minimum to pass before a new Justice could be confirmed, if they are confirmed, which puts us in late April or early May.  The last day of oral argument for OT 2016 is April 26, 2017.  Realistically, therefore, if no Obama nominee can be confirmed, the Court will be without a full complement for essentially two entire Terms.

Why is this a problem?  Because the most important job of the Supreme Court is to provide clarity and legal certainty.  Certainly Justice Scalia, the author of a law review article titled "The Rule of Law as a Law of Rules," would have agreed.  But the Court cannot provide certainty if it cannot decide cases and establish a uniform legal rule for the entire nation.  Consider one issue before the Court this year in a case called Zubik v. Burwell:  whether the exemption the Obama Administration has granted religious nonprofits from the contraceptive mandate in Obamacare is legally sufficient. The lower courts are divided on this issue, and it is frankly an extremely difficult and contentious one.  It would be extremely useful, for nonprofits, for the government, and for the public, to know the answer, whatever it might be.  But if the Court splits 4-4 in the case, as is likely, no answer will be forthcoming until 2018 at the earliest (assuming a new case comes to the Court in OT 2017).

Nor is Zubik an anomaly.  It is widely understood, and the Supreme Court's own rules recognize, that perhaps the most important function the Court plays is to resolve "splits," meaning legal disagreements among lower courts.  Many of these splits arise over highly technical, politically invisible issues that get no press coverage, but nonetheless affect the lives of thousands or millions. But they are very often difficult, close issues, because, after all, highly-qualified lower court judges disagreed as to the outcome.  As a result, an 8-Justice Court can be expected to regularly divide evenly on a substantial fraction of them, often on lines that have no partisan correlation.  The result:  continuing legal uncertainty and division.

My basic point here is simple: clarity and legal certainty matter, often more than how legal disagreements are resolved.  The current partisan impasse between the President and the Senate threatens to create substantial, prolonged legal uncertainty on the Supreme Court on many important issues. That is bad for Democrats, bad for Republicans, and bad for the United States.

February 17, 2016

The Missing Discussion of Race and Xenophobia in the Ted Cruz Citizenship Controversy

Cross-posted from PrawfsBlawg.

The debate about Ted Cruz's eligiblility to the presidency, whether he is a natural born citizen (NBC), shows no sign of abatement or conclusive resolution. Eric Posner, Einer Elhauge, Robert Clinton, and Sol Wachtler voted nay, Jack Balkin and Laurence Tribe debated the issue at Harvard, Akhil Amar supports Senator Cruz's eligibility here and here. Former university president Donald Trump has threatened a lawsuit; according to his website, Ted Cruz is eligible. And in a free country, he should be.

Nevertheless, irony abounds, as Professor Tribe wrote, because Senator Cruz is an originalist, but the best arguments for his eligibility are based on progressive readings of the Constitution and US law.  There is another level of irony not yet considered.  Cruz's immigration policy is punitive and harsh, and has introduced what seems to be a patently unconstitutional law to expatriate U.S. citizens. The joke is that historical discrimination embodied in US immigration and naturalization law, of a type that he apparently hopes to revive, make his case for natural born citizenship a heavy lift.

Michael Ramsey, an important and influential scholar on the topic, recently updated his paper about British practices, which argues that "the Framers conveyed to Congress, through the naturalization clause, the power to define 'natural' birth."  While there is wide agreement that the question is difficult, the paper has persuaded me and, for example, Akhil Amar and Jack Balkin.

Critically, the paper reserves the question of whether Congress actually exercised this power to benefit Senator Cruz. (p. 37, n.138) Evaluation of that question requires recognizing the racism, sexism, and xenophobia dominating U.S. citizenship (and immigration) law from the founding until the civil rights revolution.  For example, the naturalization acts of 1790 and 1795 restricted naturalization to "free white persons," a qualification in effect for more than a century and a half.  Reading the relevant legal materials in light of these traditions raises doubt that Congress granted natural born status to people in Ted Cruz's situation.

Here is the problem. Congress only once purported to grant NBC status to foreign-born children of U.S. citizens, in the Naturalization Act of 1790. In the Naturalization Act of 1795 and every subsequent citizenship law, including the Fourteenth Amendment, Congress never mentioned "natural born." Congress grants only citizenship.  Many commentators contend that these acts are critical.  The 1790 Act shows that Congress intended to grant foreign-born children of U.S. citizens natural born status (and had the power to do so, given that many members of the first Congress were Framers of the Constitution.)   The 1795 Act shows that Congress intended to grant NBC status even without using the words "natural born", and, by implication, has done so ever since. 

Professor Ramsey's paper finds the legislative history of the 1795 Act inconclusive regarding the import of the elimination of natural-born status, and that the 1795 law's main effect was to extend the period of U.S. residence required for naturalization. (9-10) I read the 1795 Act as much more restrictive.  In addition to lengthening the residence requirement, the 1795 law: (1) established a monitoring regime by creating the longstanding requirement of filing a declaration of intention to become a citizen; (2) strengthened the required oath, requiring, in addition to supporting the Constitution, that the person "absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever"; (3) required renunciation of any hereditary titles; and (4) excluded from naturalization those convicted of having joined the army of Great Britain during the Revolutionary War.  The 1795 Act unquestionably reflects greater suspicion of noncitizens than its predecessor; perhaps it was a step toward the Alien and Sedition Acts a few years later. 

The 1795 Act's most critical change linked the kind of citizenship granted to foreign-born children of U.S. citizens to that granted foreign-born children of naturalized citizens.  When their parents naturalized, the 1790 Act had made noncitizen children under 21 "citizens of the United States."  In a separate provision, the 1790 Act made children of US citizen parents born overseas "natural born citizens."  The 1795 Act merged the two provisions. The combined provision made children in both categories "citizens of the United States." Thus, in 1795 Congress did not merely eliminate the words "natural born citizen;" it apparently intended two formerly distinct groups to be treated identically.  It is unlikely that Congress used "citizen" synonymously with "natural born citizen." That is, presumably, Congress did not mean to grant noncitizens presidential eligibility if they became citizens as teenagers upon their parents' naturalization. 

Under the circumstances, it seems fair to apply the canon that "change of language strongly implies an intent to change the object of legislation," United States v. Fisher, 6 U.S. 358, 388 (1805) (Marshall, C.J.), and therefore to conclude that the 1795 Act reflects the decision of Congress not to grant natural born status to overseas-born children of U.S. citizens.  That many in Congress in 1795 were Framers is as important as it was with the 1790 Act: It is impossible that the significance of voting to eliminate the words "natural born" was lost on James Madison and other drafters of the Constitution. I am aware of no indication in text or legislative history that Congress in any later naturalization or citizenship legislation desired to grant "natural born" status to any children born out of the United States.  (I assume that in recent decades Congress has given the issue little thought.)

There is another curve-ball.  Congress sometimes declares noncitizen adults, retroactively, to have been citizens "at birth."  For example, in 1994, Congress enacted 8 USC 1401(h), granting citizenship and nationality "at birth" to people born overseas to U.S. citizen mothers before the date in 1934 when female U.S. citizens were granted equal rights to transmit citizenship to their children.  Congress can at its pleasure grant retroactive citizenship for many purposes (such as to make the new citizen's existing children, retroactively, U.S. citizens "at birth"), but it seems doubtful that Congress can make NBCs out of people who were not citizens at all when born.  If so, then it cannot be assumed automatically that Congress intends to exercise its NBC power every time it grants citizenship "at birth"; perhaps Congress simply wants the beneficiaries, in law, never to have been "aliens" or has some other motive.

Senator Cruz's citizenship did not rest on the long-superseded 1795 Act; the applicable provision (Section 301(a)(7) & (b) of the 1952 Immigration Act) was written in the 1930s. But that also was the era of the "white America" naturalization policy.  As discussed before, Congress granted people with one US citizen parent only conditional citizenship, which automatically expired unless specific steps were taken to retain it. The retention requirement was imposed because of the potentially questionable loyalty of a person with only one US citizen parent, born in a foreign land. 

Applying "strict construction" and "neutral principles" to the words enacted by Congress, Senator Cruz may be in trouble. To conclude that he is an NBC requires, first, acceptance of Professor Ramsey's compelling but controversial theory about the breadth of congressional power under the naturalization clause. Next, it requires the assumption that Congress sub silentio intended to grant natural born status, when their last word on the subject was directly to the contrary. Third, it requires the assumption that by citizenship "at birth" Congress always means "natural born citizenship," when the 1994 amendment, I believe the most recent, makes clear that is not the case. Finally, it requires an assumption that Congress intended to grant presidential eligibility to a class that it distrusted to the point that it made their citizenship temporary.

Again, Senator Cruz should be eligible; the natural born citizen clause is confusing and illiberal. The cleanest resolution would be constitutional amendment; next best would be a statute not about Cruz as an individual but declaring that all citizens at birth are natural born. For whatever reason, both seem nonstarters. But there are other routes, based on progressive readings of the law, or originalism rooted in the Reconstruction Amendments.

On the principle that amendments can impliedly repeal earlier, inconsistent constitutional provisions, perhaps the NBC clause did not survive enactment of the Fourteenth Amendment. The Fourteenth Amendment itself, notably, makes no "natural born citizens," those born in the U.S. are merely citizens, yet this is the only provision for citizenship in the Constitution. The Framers of the Fourteenth Amendment must have contemplated that those born in the United States would be eligible to the presidency, yet it made them mere citizens. Perhaps this should be read as a determination that citizenship at birth suffices.

Alternatively, perhaps on the theory that acts of Congress and jurisprudence created in a pre-modern era should be eyed suspiciously, the broad immigration and naturalization powers recognized in Congress should be subject to far more searching judicial review. On that principle, it might be that, contrary to current doctrine, Congress may not make citizenship contingent. Indeed, perhaps Senator Cruz is a natural born citizen because, again contrary to current law, Congress must grant unconditional natural born citizenship to children of U.S. citizens born overseas.

Finally, relying on the democracy canon, Rick HasenSandy Levinson, Akhil Amar and others propose that there should be a heavy thumb on the scale on the side of finding Senator Cruz eligible. 

Any of these, or others, might prove sufficient to make Senator Cruz eligible. But they would also require invalidation of some of his beloved legal ideas. So I hope The Donald files a lawsuit, and Senator Cruz is found eligible, but based on genuinely neutral principles of law that will be equally available to others who do not happen to be in the Senate.

February 17, 2016

Scalia Allowed Racial Profiling

This opinion essay originally appeared in The Sacramento Bee on February 16, 2016.

Appointed to the U.S. Supreme Court by President Ronald Reagan in 1986, Justice Antonin Scalia was often described as the intellectual anchor of the court's conservative wing. After his death, many commentators are reviewing his body of work, notably his interpretations of the Constitution, as well as his acerbic attacks on his colleagues' opinions and angry dissents, such as in the gay marriage cases.

He also leaves a legacy on a matter critically important to daily criminal law enforcement across the nation. Deadly encounters of people of color with law enforcement regularly make the news, including deaths in Ferguson, Baltimore and Cleveland that have led to sporadic outbursts of unrest.

Many Americans, including both Republican and Democratic political leaders, have condemned police reliance on racial stereotypes. But few are aware it was the Supreme Court, through Scalia's 1996 opinion in Whren v. United States, that made racial profiling in ordinary criminal law enforcement the law of the land.

Late one night in June 1993, two vice squad officers were patrolling a high-crime Washington, D.C., neighborhood in an unmarked vehicle. They saw two African American men in an SUV and stopped the vehicle for a traffic violation. (One can only wonder why vice officers would trouble themselves with a traffic stop.) The officers found crack cocaine and arrested the men. The defendants later argued that the traffic violation was only a pretext for a stop based on race - thus violating the Fourth Amendment ban on unreasonable searches and seizures.

Writing for a unanimous court, Scalia found that the vehicle stop did not violate the Fourth Amendment because the police had probable cause to believe a traffic infraction had been committed. To Scalia, it did not matter whether the officers admittedly used the violation as a pretext to stop the vehicle because the occupants were black.

He reasoned that any claim of racial discrimination by police fell outside the Fourth Amendment. Instead, he concluded, such a claim was properly brought under the equal protection guarantee of the Fifth and Fourteenth amendments.

But what his logic failed to capture was that equal-protection claims are extremely difficult to prove. A plaintiff must demonstrate that the police acted with a discriminatory intent - not simply that the action, practice or policy had a discriminatory impact on racial minorities. Understandably, plaintiffs can rarely produce the evidence necessary to establish guilty intent. Police officers generally can show there was no discriminatory intent by pointing to a race-neutral reason, such as a minor traffic violation, for the stop.

Put simply, Scalia's constitutional logic failed to ensure that the Constitution would be enforced to protect against racial discrimination. The Whren decision effectively authorizes traffic stops by police based on race. As a result, racial profiling is integral to a criminal justice system that critics contend is, at bottom, racially biased.

In the end, one of Justice Scalia's legacies is the existing problem of racial injustice in law enforcement. As public protests have shown, much remains to be done to remove the taint of racial discrimination from criminal law enforcement.

February 5, 2016

UC Davis Law Review, Volume 49, Issue 3

The editors of the UC Davis Law Review just sent this message to the law faculty. The new issue looks outstanding. Congratulations to the UC Davis Law Review!

Dear King Hall Faculty,

We invite you to read the UC Davis Law Review, Volume 49, Issue 3, at http://lawreview.law.ucdavis.edu/issues/current-issue.html. Please see the linked table of contents below. We are particularly fortunate that Professor Donna Shestowsky contributed our lead article, which is also featured on our home page, lawreview.law.ucdavis.edu.

We hope that you will consider submitting your manuscripts to us when we open later this month, and that you will encourage your colleagues to submit theirs. Thank you for all of the support you give us!

Sincerely,

The UC Davis Law Review

UC Davis Law Review • Vol. 49, No. 3, February 2016

Articles

Note

 

 

 

September 25, 2015

Corporations, the Constitution, and the Rights of Others

Cross-posted from Columbia Law School's Blue Sky Blog.

The Supreme Court's protection of corporate political expenditures in Citizens United v. FEC and corporate religious exercise in Burwell v. Hobby Lobby has rekindled perennial fears about the influence of corporations in U.S. politics and policy. One popular response has been to argue for stripping corporations of constitutional rights. For example, the proposed "People's Rights Amendment" would exclude corporations from the categories of "people, person, or citizen as used in this Constitution,"[1] thus denying corporations the constitutional rights of human individuals.

Unfortunately, denying corporate constitutional rights is unlikely to have much effect. Insofar as the Supreme Court has protected corporations under the Constitution, that protection does not expressly rely on the notion that a corporation per se has constitutional rights. To the contrary, a central strategy of the Court's corporate constitutional jurisprudence has been to avoid deciding whether corporations are the holders of constitutional rights. Constitutional decisions protecting corporations have not been based on the rights of corporate "persons," but on the less controversial rights of human persons. That is, "corporate" constitutional rights are actually based on the rights of others.

The Court does this in two ways. First, it sometimes treats a corporation as no more, and no less, than an "aggregation" of human individuals whose rights are the real rights implicated in corporate constitutional questions. Hobby Lobby expressly states the Court's reasoning: the corporate "person" is merely "a familiar legal fiction" created to protect the rights of "the people (including shareholders, officers, and employees) who are associated with the corporation." Thus the Fourth Amendment prohibits unreasonable search and seizure of corporate papers because such papers implicate the property and privacy rights of individuals. By contrast, a corporate entity cannot invoke the Fifth Amendment's protection against self-incrimination, because no individual's rights are compromised when a corporation (in contrast to, say, a CEO) is compelled to incriminate itself.

In the First Amendment free speech context, the Court bases corporate protection on individuals' rights in a second, very different way. The so-called "listeners' rights" theory of the First Amendment protects the public's right to hear messages, and thus requires neither a corporate nor an individual "right" to speak. Thus in Citizens United (and earlier, in First National Bank v. Bellotti (1978)) the Court held that corporate political spending must be protected in order to protect voters' First Amendment rights to receive diverse sources of political information.

The Court, then, has avoided the mistake of equating corporations with human individuals for constitutional purposes. However, its "rights of others" approach suffers from a different error: a fundamental misunderstanding of the corporate decisionmaking process. In the "aggregation" cases, the Court purports to protect the individuals associated with the corporation, but this erroneously assumes that the corporation's acts are in effect the acts of those individuals. The Court makes a similar error with respect to corporate political spending. Even if listeners have an interest in hearing corporate messages, that may conflict with the rights of the corporation's constituent individuals if they disagree with those messages. Citizens United dismissed this concern on the ground that shareholders control a corporation's messages through "corporate democracy."

Small, family-run corporations, such as that involved in Hobby Lobby, may accurately represent the wishes of their constituents.  The same is not true of larger corporations, however.  Corporate law does not, and is not intended to, run corporations in a "democratic" way. Rather, in the interests of money-making efficiency, the law concentrates power in professional managers. They enjoy nearly unreviewable discretion to control the resources of the corporation with negligible input from shareholders.

As intended, this arrangement is likely to benefit shareholders financially. But it does not protect them from corporate political spending or other speech acts they disagree with. Shareholders can sue management only for deliberate malfeasance, and political spending has been treated as a proper matter for management discretion. Furthermore, the Court itself has stated that corporate rights are meant to protect not only shareholders, but also other corporate constituents, such as employees. Those individuals, however, have even less power than shareholders with respect to corporate decisionmaking. Employees cannot vote in corporate elections and can be fired for disagreeing with management.

The protection of corporate constituents may present a compelling state interest justifying the regulation of corporate speech. Corporate political spending in particular could compromise the speech and property interests of corporate constituents who may disagree with the political message. This argument questions the reasoning of Citizens United, and is consistent with the proposed "Democracy for All Amendment," which would expressly permit campaign finance law to regulate corporations and natural persons differently.[2]

ENDNOTES

[1] See S.J. Res. 18 & H.J. Res. 21, 113th Cong. (1st Sess. 2013). I should disclose that I am a member of the Legal Advisory Committee of Free Speech for People, an advocacy group that supports this amendment, as well as the "Democracy for All Amendment," discussed below. See Free Speech for People, www.freespeechforpeople.org.

[2] See S.J. Res. 19 & H.J. Res. 119, 113th Cong. (2nd Sess. 2014).

The post is adapted from the recent article, Corporations and the Rights of Others, 30 Const. Comment. 335 (2015), which is available here.

September 23, 2015

Things You Didn't Know about Magna Carta

The following is a lightly edited version of a short talk I gave on the 800th anniversary of Magna Carta for the September meeting of the Schwartz-Levi Inn of Court at UC Davis School of Law.

Tonight I will be discussing a few of the lesser known aspects of Magna Carta.  I'm sure you're all familiar with the broad outlines; the barons of the realm of England extracting various concessions from King John at Runnymede Field, and I won't rehearse that history in any detail.

Let's start with the words "Magna Carta."  When British Prime Minister David Cameron appeared on the David Letterman show in 2012, he admitted that he wasn't sure how to translate the Latin words Magna Carta.  But he said it with an English accent, so it didn't sound quite as stupid as it would have if an American had said it.  The basic translation, of course, is "Great Charter," but it's important to note that originally the sense of "Magna" as "Great" wasn't "great" in terms of significance but "great" in terms of size.  The document nowhere refers to itself as Magna Carta.  A clerk gave the charter this name a few years later to distinguish it from a smaller document known as the Charter of the Forest.  So the original sense of "Magna Carta/Great Charter" was more "physically big charter" than it was "significant charter."

If we were to go back in time and ask Englishmen in the 17th century when Magna Carta was signed, they would have said 1225.  This year, 2015, would be the 790th anniversary of Magna Carta, according to them.  And the monarch who signed Magna Carta was Henry III, not John.  This seems to be a rather significant discrepancy.

What explains it?  Well, King John immediately asked the pope to declare Magna Carta invalid because he signed under duress, and the pope did so.  After John's unexpected death in 1216, the document was re-issued under the name of John's son, the new boy king Henry III, and it was re-issued again in 1225, when Henry III had reached his majority.  It was this document, with significant deletions from the original, that later generations celebrated as Magna Carta, and in many ways appropriately so, because this was the only document that was of continued legal significance.  The 1215 document was invalid.  Only much more recently have we given more attention to 1215, King John, and the original text.

The text of Magna Carta contains numerous promises from the king to his barons and subjects.  Promises from kings to subjects are great, of course, but the real issue is enforcement.  Magna Carta had a solution, but it wasn't a particularly good one.  It provided for 25 barons to serve as enforcers of Magna Carta against the king.  If the king violated the provisions, the barons "shall distress and injure us in all ways possible - namely, by capturing our castles, lands and possessions and in all ways that they can."  As Harvard Law professor Larry Tribe has argued, "for all that we justly celebrate Magna Carta as the well-spring of the rule of law, its carefully wrought mechanism for legally restraining abuse of royal power was nothing more than institutionalized civil war.  Nothing could more strikingly illustrate the theoretical and practical difficulty of reining in the power of him who reigns."  This provision was not included in the re-issue under the Henry III, and it would take many more centuries before better answers to this problem, other than simply attacking the king, were formulated.

Magna Carta has become far more a symbol of constitutionalism than it ever was originally.  Generations of English and American lawyers have cited it to courts in support of personal liberties.  Indeed, the citations became so frequent that many English courts simply grew frustrated.  Chief Justice Roberts noted recently that if a lawyer is citing Magna Carta, he is probably losing.  This has been true for a while.  In the seventeenth century, a juror complained about the then typical practice of judges fining jurors for verdicts with which the judges disagreed.  When the juror cited Magna Carta, the judge responded, "Magna Carta, Magna Farta."  I challenge anyone to distinguish adverse precedent more concisely.                      

Today is California Admission Day, and the organizers of this program have asked me to connect California's admission to the Union in 1850 to Magna Carta of 1215.  This is not an especially easy task, but here's my best effort.  California's admission was signed into law by President Millard Fillmore.  But Fillmore was not supposed to be president.  He ascended to the presidency when President Zachary Taylor died unexpectedly, under mysterious circumstances, just two months earlier.  President Taylor, in February 1850, had approved the proposed California constitution, concluding that it was republican in form.  And here's the connection.  Zachary Taylor was a direct descendant of King John.  And he's not the only American president who is a direct descendant of King John.  So were Presidents Washington, Jefferson, Madison, John Quincy Adams, both Harrisons, Cleveland, both Roosevelts, Coolidge, Hoover, Nixon, Ford, both Bushes, and Obama.  Three of the four Presidents on Mount Rushmore are grandchildren, many times over, of King John.  So America owes a lot to the loins of King John.

And of course we all know King John was a bad king.  We don't call him John I, but simply John, because he so thoroughly soiled the name that no subsequent English monarch ever adopted it.  It is tempting to speculate that he is the source of our expression "going to the john," but, sadly, I have no evidence to back that up.  But we shouldn't completely dismiss him.  If John had been a model king, there would have been no Magna Carta.  Similarly, if James II had been a good king, there would have been no English Bill of Rights.  And if George III had behaved appropriately, there would have been no American Declaration of Independence or U.S. Constitution.  It brings to mind the old problem in Christian theology about the nature of Judas; without Judas's betrayal of Christ, there would have been no crucifixion and no resurrection.  So shouldn't Judas get at least some credit?  So too, perhaps, with these bad kings.  For every twenty toasts to Magna Carta, we should perhaps raise one to King John, even if he would have privately complained about being forced to sign a "Magna Farta."