April 12, 2021

The simple principle that can fix American law

[Cross-posted from The Atlantic]

By Aaron Tang

Aristotle once observed that “the virtue of justice consists in moderation.” By any measure, he would find little to admire in America’s modern judicial landscape.

In one sense, the problem is simply one of personnel: Precious few judicial moderates serve in America’s federal courts. This absence is most obvious at the Supreme Court, but courts of appeals and district courts suffer from it, too. The researchers Adam Bonica, of Stanford, and Maya Sen, of Harvard, have found, for example, that the present ideological distribution of federal judges resembles an inverted bell curve. We have lots of liberal and conservative judges, but few in between. Gone are the days of jurists like Sandra Day O’Connor, for whom the middle ground was a good place—not one to avoid for fear of being voted down in the Senate or lampooned as a “squish.”

Yet to focus on our nation’s dearth of moderate judges is to scratch at the surface of a much deeper problem. As a field, the law lacks a satisfying, middle-ground response to the core philosophical question that judges must face: By what legal theory should they decide difficult cases—ones in which the law is unclear and where any ruling risks inflaming division among the American people?

Liberal and conservative judicial approaches are, of course, well established. The late Ruth Bader Ginsburg captured the former approach when she testified during her confirmation hearings that the Constitution should be interpreted so as to govern “not just for the passing hour, but for the expanding future.” By contrast, her conservative successor, Amy Coney Barrett, is now the fourth self-professed originalist on the Court.

The rift between living constitutionalism and originalism is not merely an esoteric debate among judges. It is equally salient—and equally partisan—among the broader public. A recent Pew Research poll found that while 88 percent of liberal Democrats believe that the Supreme Court should “base its rulings on what the Constitution means in current times,” 79 percent of conservative Republicans say the Court should “base its rulings on the Constitution’s original meaning.”

But what is the judicial philosophy that occupies the middle ground? There is, of course, no way to split the temporal difference between originalism and living constitutionalism. Either the law’s meaning is fixed in time, or it isn’t. Some prominent academics have worked to re-brand originalism as itself a neutral and centrist approach. But on balance, the results have tended to track conservative views.

What America lacks today, in other words, is a judicial philosophy that can mediate the usual theories advanced on the left and the right. This absence might be every bit as much of a problem for our legal culture and legal system as the absence of centrist judges. Or, rather, it might be the underlying problem altogether. For without a compelling philosophy of judicial moderation, what hope is there for the reemergence of judicial moderates?

Today’s supreme court offers a powerful lens through which to view this dilemma. In the aftermath of Barrett’s confirmation, progressives are fearful of the likely consequences of the Court’s new conservative supermajority. Some have suggested that, putting aside the possibility of eliminating the filibuster and enacting meaningful Court reform, Democrats’ best short-term hope is for two of the Court’s six conservatives to dial back the political temperature and look for centrist solutions in divisive cases. Although the Court has hardly swung left over the past several months, a surprising pattern of decisions suggests that a modest pivot to the middle might well be emerging.

Here is where the absence of a moderate judicial approach becomes crucial moving forward. Suppose Chief Justice John Roberts, whose concern for the Court’s institutional legitimacy is well known, is joined by a second conservative who cares about preserving the Court’s public image. Perhaps it is Justice Brett Kavanaugh, who shocked onlookers with a recent declaration that “the same-sex marriage right recognized in Obergefell” is a “very important right.” Or maybe it is Justice Neil Gorsuch, whose unexpected opinions last term rankled some conservatives. Even Barrett has shown surprising signs of moderation, as her early votes have aligned her closer to the chief justice than to staunch conservatives Clarence Thomas and Samuel Alito.

The trouble is, what comes next? Or, rather, how does a new center emerge? How might a bloc of institutionalist-minded conservative justices vote to reach moderate outcomes in the controversial disputes that come before them?

One option would be to pick, choose, and even trade off winners across a range of cases based on the justices’ best guess as to which outcomes would be most politically palatable. In this ad hoc approach, the pursuit of aggregate results approximating some rough vision of centrism would itself be the touchstone for decision—legal reasoning be damned. Indeed, some critics have argued that the Court’s recent centrist pivot is the product of precisely this approach.

This would be a recipe for disaster. Supreme Court justices are poorly equipped to make these kinds of political judgments. Consider Chief Justice Roger Taney’s apparent belief that the Court’s Dred Scott ruling would somehow settle sectional conflict over slavery, thereby averting a civil war. If anything, the justices’ political instincts are even less informed now, given the growing social and economic distance between them and the American public.

Ad hoc rulings of this kind would also suffer from a severe public-reason problem. Faced with the opportunistic and inconsistent rationales put forth by a Court that dresses up its political guesswork from one opinion to the next, the public would soon recognize naked political expediency—not principled legal reasoning—as the Court’s lodestar.

A Supreme Court interested in moderation would do better to explain its decisions in the language of a consistent legal principle. Legal theory offers two traditional contenders: deference to legislatures and stare decisis—deference to the Court’s own prior judgments. Recently, Roberts has drawn on both approaches. He explained his vote to uphold a California COVID-19 response as an exercise of deference owing to the fact that the Court, unlike a legislative body, “is not accountable to the people.” And he defended his surprising vote to strike down a Louisiana abortion regulation in June Medical Services v. Russo by citing stare decisis.

Each of these approaches, however, is beset by problems. As an initial matter, the two doctrines are often internally contradictory. June Medical is itself an example. The chief’s vote to invalidate Louisiana’s admitting-privileges requirement for abortion providers was a textbook application of stare decisis given that the Court had struck down an identical Texas law just four years earlier. Yet following that precedent amounted to a direct rebuke of state legislators.

More fundamentally, legislative deference and stare decisis are inadequate on their own terms. The notion of deference to legislatures grew in appeal during an era when the major question before the Court was whether to second-guess popular New Deal economic regulations. But the doctrine’s infirmity was soon exposed, when, during the civil-rights era, bigoted local and state officials pleaded for deference to racially discriminatory laws. From this perspective, Brown v. Board of Education signaled more than the Court’s overdue intervention in the great racial injustice of segregated public schools; it heralded the rightful end of legislative deference as an overarching principle of judicial review.

A similar problem plagues stare decisis. Like legislative bodies, sometimes the Court makes constitutional errors that require correction. Yet if taken to the extreme, stare decisis would compel the Court to stand by odious rules announced in cases like Plessy v. Ferguson and Korematsu v. United States. Stare decisis, like legislative deference, cannot be an “inexorable command”—a fact the Court itself has stated many times. But once the Court admits that it can discard these doctrines at its pleasure, what constraining role is left for them to play?

All of this points to the fundamental problem that faces the Court’s institutionalist conservatives if they choose to pursue a path of judicial moderation. It is a problem for America’s broader legal culture, too, to the extent that one hopes the polarized segments of American society can ever discover common ground. Does any legal principle exist by which we can find our way there?

The year 2020 will long be remembered as a year of tragic and unparalleled adversity, from the onset of the deadly global pandemic, to glaring reminders of society-wide racial injustice, to Donald Trump’s ill-fated effort to steal the election. But even as we grieved, worried, and mobilized for change, something encouraging happened, unexpectedly, at the Supreme Court: The justices stumbled onto the beginnings of a compelling theory of judicial moderation.

It started last summer, at the end of one of the most monumental terms in recent history. Over a 25-day sprint, the Court handed down high-profile opinions concerning the rights of LGBTQ workers; the fate of hundreds of thousands of undocumented immigrants who had been brought to America as small children; impassioned efforts to obtain Trump’s private financial records; a controversial Louisiana abortion regulation; religious-school vouchers; and whether much of eastern Oklahoma remains an Indian reservation.

These cases raised genuinely difficult legal questions with enormous stakes. And in all of them, the Court’s decisions followed an intriguing logic. Rather than resting solely on some highly debatable conclusion as to a one-and-only “correct” meaning of the law—whether rooted in arguments over original meaning or in evolving precedent or societal values—the Court justified its rulings by pointing to an additional rationale: the goal of minimizing the harm of its decisions. The Court did so in a particular way—by identifying and ruling against the side with the greatest ability to avoid the harm it would suffer in defeat. (I’ve previously called this the “least harm principle.”)

Take, for example, last term’s blockbuster ruling in Bostock v. Clayton County, in which Gorsuch (joined by Roberts) stunned movement conservatives by holding that federal law forbids employment discrimination on the basis of sexual orientation. Much has been written about the particular brand of textualism that Gorsuch employed to reach this outcome, and rightly so. But that commentary has obscured an equally vital piece of Bostock’s reasoning: the opinion’s clear suggestion that, despite their defeat, religious employers have powerful legal options for minimizing their harm moving forward. It is no accident, in other words, that Gorsuch went out of his way to describe the “careful consideration” that such employers would receive in future cases should they request exemptions from federal anti-discrimination law under the free-exercise clause or the Religious Freedom Restoration Act. That is least-harm reasoning at its apex.

The same principle explains Trump v. Mazars. That case involved subpoenas issued by several Democrat-controlled committees in the House of Representatives seeking private financial records from Trump’s bank and accounting firm. The committees argued that the records were needed to inform potential legislation on issues like money laundering and foreign election meddling. The president contested the subpoenas, and the Supreme Court ruled in his favor. Critically, the Court did so because Congress has better options for avoiding the harm of defeat. For unlike Trump (and future officeholders), who would be powerless to avoid the intrusion of such subpoenas, the House could potentially secure the information it needed to legislate from subpoenas to other sources or narrower subpoenas to the president himself.

The Court, to be sure, has not consistently followed this approach; prominent counterexamples include cases in which the Court has upheld state laws burdening voting rights even where those states have other ways to protect their interests. But as I argue in a forthcoming law-review article, the least-harm principle remains firmly grounded in a broad tradition of high-profile decisions in which the Court has consciously bypassed arguments rooted in originalism or evolving social values and ruled instead to ensure that the losing side has ample alternatives to minimize its harm. Promisingly, the Court has shown signs of following this approach in a number of important cases this term, too.

The least-harm principle is moderate in the most logical of ways: By ensuring that losing groups have other avenues for redress, the principle prevents the destructive world President Joe Biden cautioned against in his inaugural address—one in which “every disagreement [is] a cause for total war.” The principle is neutral because the side that is best able to avoid its harm will differ based on the nuanced facts of each case, not political preferences—as cases such as Bostock and Mazars illustrate. And the least-harm principle is intellectually honest because it admits that judges will often be unable to discover clear answers to society’s deepest disagreements using lawyerly arguments about vague, ambiguous, and conflicting sources of legal meaning.

The least-harm approach is also judicially administrable. Consider, for example, the Court’s ruling in the DACA case, which invalidated the Trump administration’s effort to rescind protections for roughly 700,000 “Dreamers” because the administration failed to provide a “reasoned explanation” for its action. It is obvious which side would be better able to avoid the harms of a defeat. Unlike the Dreamers, who would have been powerless to avoid deportation had they lost, the Trump administration had “considerable flexibility,” as the Court pointed out, to rescind DACA, as long as it provided a sufficient explanation.

Opinions like these show how the Court is on the cusp of a powerful new approach for deciding hard cases. Yet the least-harm principle’s future is complicated by the recent change in the Court’s composition. No longer is Chief Justice Roberts, who either authored or joined last term’s prominent least-harm decisions, the median justice. How, then, will we know if the approach retains influence in the coming months?

A major test case currently pending in the Court will be revealing. The question in Fulton v. City of Philadelphia is whether the Constitution entitles a Catholic foster-care agency to an exemption from a general city rule forbidding discrimination on the basis of LGBTQ status. (The Catholic agency refused on religious grounds to certify LGBTQ foster parents.) The Catholic agency is likely to win the case; the major question is how it will do so.

One possibility is that the Court will write in sweeping terms, overruling long-standing precedent to confer a broad religious exemption to engage in LGBTQ discrimination. But the least-harm principle provides a narrower—and superior—ground of decision. Under it, the Court would explain that it is ruling against Philadelphia because the city has a sensible alternative for protecting LGBTQ people’s right to participate as foster parents: The city can compel religious agencies to refer LGBTQ applicants to other agencies that would gladly serve them. In Philadelphia alone, 29 such foster-care agencies exist. But as Kavanaugh implied in oral argument, this middle-ground approach would mean that religious agencies would lose in jurisdictions where no secular agencies were willing to serve LGBTQ applicants—for in such cases the government would lack any way to avoid harm to the LGBTQ community.

To be sure, progressives and conservatives alike might be skeptical of this principle as a first-best solution. To progressives, any defeat for their most cherished values might seem too much to stomach. Many on the right likely feel the same, and understandably so.

But the pursuit of victory by any means is what has brought the Court to this current precipice. To preserve the Court’s legitimacy, both sides of the partisan divide must come to terms with the prospect of some losses. And if that is so, then all Americans should hope for the kind of losses the least-harm principle calls for, where one side doesn’t get what it wanted precisely because it has other ways to protect its interests.

The greatest virtue of the least-harm principle, then, might be its potential to remind the American people that Supreme Court decisions are not the end of the road. Under it, losing groups retain the power to remedy the harms they suffer. A legal philosophy that awakens the people’s own sense of agency might not be the best that progressives or conservatives can hope for separately. But it might be the best they can hope for together: a legally and morally attractive judicial middle ground, where one has been missing for far too long.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

April 5, 2021

Blast from the past: The latest 'new' migrant crossing point in Arizona: A bird's eye view (April 24, 2006)

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

It appears that matters along the U.S./Mexico border have not changed that much.  In a blog post in April 2006, I wrote about a visit to the border in southern Arizona:

"Several members of the group visited one of the dormitories that temporarily housed migrants and had a haunting experience. . . . .

I saw a young girl, maybe four years old with her mother. Let's call her Elena because she kind of looked like my 10-year-old daughter Elena, with a dark complexion and dark, straight hair. As it turns out, young Elena was headed to the United States through the desert the next day with her mother. The trip would begin with a drive for about 1.5 hours over unpaved -- and very bumpy -- roads to the last stop. Migrants then would be taken by a smuggler for a short van ride and then left in the Sonoran desert. With a guide, they would walk 3-4 miles to the border and then for as many as 20-40 miles through the desert, where hopefully a ride would meet them there and pick them up to take them to the interior of the United States. Elena seemed very young and quite small. I could not help but wonder with sadness, would she make it? Would she suffer? Later, after our guide told the group that we probably had met some people who would die on the journey, I thought about Elena.


The desert, filled with mesquite, is dry as the proverbial bone. The high temperature averages 105 degrees in the summer. It was a `cool' 80-90 degrees during our visit. We walked some of the migrant trials on the U.S. side, setting off some sensors and bringing a bevy of Border Patrol all-terrain vehicles down on us. The trails are rugged, with dry creek beds filled with temporary shelters, empty water bottles, clothes, backpacks, shoes, and wrappers from snacks. Every so often you would run across a piece of clothing or a child's shoe. It was eerie and one could only wonder what the journey would be like at night or in the throes of confusion due to dehydration on a deadly hot day. Getting lost would be easy for the terrain and mesquite all look alike.

Hundreds of migrants die in this very desert every year, with thousands having died in the deserts along the U.S./Mexico border since the United States ramped up border enforcement in 1994. People in the Tucson area know of the hundreds of deaths that occur each year in the unforgiving desert. Groups like the Samaritans and Humanos Derechos try to provide assistance but migrants still die. Congressman Raul Grijalva who represents southern Arizona and voted against the Sensenbrenner bill, has a good sense of the issues. Grijalva addressed the journalists at the University of Arizona last week. When asked about why Congress generally seemed unconcerned with the thousands of border deaths and in fact seems eager -- indeed, dead set -- to add to the enforcement budget, he said that many members of Congress simply viewed migrants as `collateral damage' of the border enforcement efforts.

As I returned home, I kept wondering whether young Elena had successfully entered the United States, or whether she had ended up as `collateral damage' in the war on `illegal aliens.'"

It appears that there are more unaccompanied minors making the journey North than in 2006.  Otherwise, many aspects of the journey remain the same.

March 30, 2021

Episode 51: 'The Capitol Mob and their Cell Phones'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

On Jan. 6, a mob stormed the U.S. Capitol to try to stop the certification of the presidential election results. Many of the insurrectionists will be tracked down and charged with crimes, in part, because their cell phones placed them in the Capitol building during the attack.

The case of Carpenter v. United States is the closest the Supreme Court has come to weighing in on the matter of historical cell phone data, but the decision didn’t offer an opinion on law enforcement’s use of a location-specific cell phone tower data dump without an individual suspect in mind. This brings up questions about the way warrants usually work under the Fourth Amendment. Listen to episode 51 of What Trump Can Teach Us About Con Law.

March 22, 2021

Just one Supreme Court case could blow up unions, child protection and anti-discrimination law

[Cross-posted from The Washington Post]

By Aaron Tang

Aaron Tang is a professor at the University of California, Davis School of Law. He was a law clerk to Justice Sonia Sotomayor.

On March 22, the Supreme Court will hear oral arguments in a seemingly minor labor-law dispute with potentially sweeping ramifications. Although the case itself concerns a mundane California agricultural regulation, a decision could threaten fundamental laws governing organized labor, child safety, nursing-home inspections — and even laws forbidding stores and restaurants from discriminating.

The case, Cedar Point Nursery v. Hassid, involves a decades-old California regulation that grants union organizers temporary access to an agricultural employer’s property — during non-working hours — to communicate with workers about their right to organize.

A pair of California fruit producers are challenging this access in the Supreme Court, contending that it amounts to an uncompensated “taking” of their property, forbidden under the Fifth Amendment. But California is not taking their property at all. Unlike the paradigmatic situation where government appropriates private property for its own use, California’s regulation merely grants union organizers a narrow license to meet with workers — without interrupting the employer’s operations.

The fruit producers are thus left to make a different — and far more sweeping — argument. They assert that the access regulation is a taking because it prevents them from excluding people that they just don’t like. And this “right to exclude unwanted persons,” they contend, is “so universally held to be a fundamental element of the property right that it cannot be infringed without compensation.” If the Supreme Court agrees, the upshot would be staggering.

Start with the effects on union organizing across the nation. The ability to access employer property is vital not only to California agricultural unions but also to millions of employees who enjoy the right to organize under the National Labor Relations Act. In 1945, the Supreme Court held that this law grants pro-union employees the same right at issue here: the ability to access an employer’s property outside of work hours for the narrow purpose of union organizing. Yet if the court holds that the takings clause permits property owners to exclude any unwanted person, employers could cripple unions by blocking employees from organizing on their premises.

The dispute threatens havoc just as great outside the union context. Consider state laws that permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers’ logic, such individuals would have a Fifth Amendment right to do so — unless the government paid the suspected abuser to access the property. The same problem would ensnare nursing home visits and food safety inspections.

Perhaps most glaring of all, the case threatens to blast a giant hole through the heart of anti-discrimination law. Federal law forbids stores, restaurants and other public accommodations to refuse service on the basis of a customer’s race. A number of states protect LGBTQ persons from similar discrimination.

Yet if Cedar Point creates a right to eject all “unwanted persons” from one’s property in the absence of a government payout, states and the federal government would face an impossible choice: raise taxes so that they can pay untold sums of money for every instance an LGBTQ person or person of color enters a storefront that belongs to a discriminatory owner, or call off the crucial project of eradicating societal discrimination.

There is reason to worry what the Supreme Court’s newly bolstered conservative majority will do. Just three years ago, in Janus v. AFSCME, Council 31, the conservative justices struck a blow against organized labor when they overturned a decades-old precedent and invalidated state laws permitting public sector unions to charge “fair share fees” to non-union workers.

But there is also cause for optimism that the justices will follow an emerging pattern, which I’ve called the “least harm principle,” in which they consider which side could best withstand a ruling against it. This approach points to a clear outcome in Cedar Point given the asymmetrical nature of the case.

While a ruling against the unions would leave them unable to communicate with seasonal employees who often lack cellphones and permanent addresses, a ruling against the employers would leave them with other, existing avenues for legal redress. Under longstanding Supreme Court precedent, property owners can assert a different kind of takings claim, known as a “regulatory taking,” under which they may be entitled to compensation if a regulation is especially burdensome. That case-by-case approach, as Chief Justice John G. Roberts Jr. wrote recently, finds the proper “balance between property owners’ rights and the government’s authority to advance the common good.”

The fruit growers never even attempted to make this argument. The likeliest reason is as cynical as it is obvious: Whereas a regulatory takings claim might have entitled them to some compensation if California’s law actually imposed an onerous burden, winning on that ground would have done nothing to eviscerate organized labor around the nation.

The radical character of the challengers’ lawsuit should give the justices pause. The court should decline the fruit producers’ plea to constitutionalize a sweeping power to exclude “unwanted persons” — and remind them of the rights they already enjoy.

March 15, 2021

Defend the public defenders

[Cross-posted from The Atlantic]

By Irene Oritseweyinmi Joe

Public defense might be one of the rare professions in which doing one’s job too well can lead to being fired. The reasons for this are structural—public defenders are tasked with an obligation they cannot fulfill without upsetting those tasked with helping them fulfill it—and the system can be fixed structurally: by creating a state-level office whose job it is to defend public defenders.

Consider the case of two public defenders from Montgomery County, Pennsylvania, Dean Beer and Keisha Hudson, who say they were fired last year after filing an amicus brief describing as unacceptable and unconstitutional court decisions regarding bail that harmed their clients. (The county board responsible for their firing has not publicly commented on the personnel matter and did not respond to a request for comment on that matter for this story. According to The Philadelphia Inquirer, a letter from the county executive to Beer also cites the brief as cause, among other concerns—in particular, that Beer and Hudson had misused resources the previous summer when they assigned interns to review police officers’ social-media accounts for racist language, an accusation Hudson described as a pretext.)

At the time, Beer and Hudson were the highest-ranking attorneys in the Montgomery County office, considered one of the most effective public-defender offices in the state. But, like many public defenders around the country, Beer and Hudson were at the mercy of other actors, like the judges or attorneys general who lead the state judicial and executive branches. In many cases, these actors are responsible for providing the very resources necessary for public defenders to do their job. This relationship creates a conflict whereby a public defender can face retaliation for protecting their client’s rights against abuse or misbehavior. For the public-defense system to work more equitably, a public defender’s ability to hold on to their job should not depend on the same people they challenge in court.

In their amicus brief, Beer and Hudson notified the state supreme court that local judges were assigning excessive and unwarranted bail amounts to certain indigent defendants. The attorneys listed some bail decisions that might shock even the most casual observer of the criminal process. One bail was set at $50,000 for a nursing teen mother accused of a first offense, which resulted in her staying in jail without accommodations for pumping and preserving her breast milk. This minor did not have an attorney present at the bail determination; when an attorney was finally provided, more than two weeks later, the court declined a motion to reduce bail, noting that the minor could express her milk by hand. Both human decency and the rules of professional responsibility governing the legal profession support public defenders’ ability to make appellate courts aware of situations like these. Beer and Hudson’s reward for defending their clients, however, was losing their jobs. One judge demanded an apology and a public statement from Beer, and the Montgomery County Board of Commissioners abruptly fired them both.

Working as a public defender can be like walking a tightrope. Attorneys are constitutionally required to provide effective representation to their clients, ethically required to do so as officers of the court, and subject to the ordinary human desire to keep their jobs. Other actors in the criminal process complicate the public defender’s ability to do each of these things. At times, courts set restrictive and unconstitutional bail, show little patience for the time it takes attorneys to investigate and prepare cases, and fail to hold prosecutors accountable. Prosecutors sometimes bring so many cases that public defenders cannot meaningfully represent every client they are assigned, and then use this tactic to move cases quickly through the criminal process. Then, the leaders of the institutions within the executive and judicial branches of government can fire or reassign a public defender when they are displeased with his or her work. It can be a vicious cycle, where a public defender is fighting a battle against the very entity that must provide that public defender with the resources and support it needs to do so. So who defends public defenders when they are faced with serious consequences for challenging the decisions of opposing actors, when those very actors oversee the public-defender institution?

Most states house the public defender under either the judicial or executive branch, and each placement provides its own unique challenges. The executive branch has a clearly articulated objective of enforcing a jurisdiction’s laws. This role is in some ways similar to the public defender’s role of ensuring that law enforcement complies with both constitutional and statutory law, but it also contradicts the mandate of the public defender to protect the individuals charged with violating those laws.

The state judicial branch is tasked with advancing the resolution of the courtroom process neutrally, efficiently, and fairly. This role can sometimes lead courts to deprioritize the public defender’s needs in larger decisions about the courtroom process, as when judges feel they must support the requests of others involved in the criminal process, such as prosecutors and victims. Courts can also punish the public defender who acts in a manner inconsistent with the court’s view of how the process should evolve.

In order to see the dynamics at play, it is crucial to understand how the modern conception of the public defender originated. The institution was developed through a series of Supreme Court cases in the 1930s and ’40s interpreting the Sixth Amendment right to the effective assistance of counsel. The process culminated in the 1963 Supreme Court case Gideon v. Wainwright, which held that indigent defendants accused of felonies in state court must be appointed counsel. But in practice, that right can lose its efficacy at the whim of other actors in the criminal process who have conflicting interests.

One consequence of this system is chronic underfunding with limited paths for redress. For example, Bennett J. Baur, the chief public defender for the New Mexico Law Offices of the Public Defender, an institution managed through the state judicial branch, recognized his professional duty to ensure legal representation for all qualified defendants. Lack of adequate funding, however, created a difficult choice: provide representation that was constitutionally and ethically deficient, or risk the ire of the system’s management (and possibly his job) by not providing any representation to some defendants. When Baur’s funding requests were denied, he chose the latter option, and ordered one of his county offices to stop accepting new clients. A New Mexico district-court judge deemed Baur’s refusal to represent indigent clients a violation of a court order to participate in the criminal process and held him in contempt of court.

The obvious solution would be to make the public defender an independent institution, so it could define its own structure to best suit the needs of its client base without fear of reprisal. But doing so would overlook the need to secure funding in a government system where all actors must compete for limited resources. While the public defender plays an important role in the criminal-justice system and protects the rights of the public at large, its influence and political efficacy are often smaller in comparison to other executive or judicial agents. To secure a seat at the table, the public-defender institution requires an authoritative presence that can effectively pursue its agenda within the state structure.

Instead of asking for pure independence, public defenders should seek a protector, a state actor that possesses a degree of independence but is also able to effectively advocate for the institution. This actor’s primary responsibility would be to ensure that public defenders receive the resources they need to comply with constitutional and ethical duties. The position would also challenge the leadership in its assigned branch, including identifying practices that hinder public defenders’ ability to do their job and holding other actors accountable in the larger system.

Fortunately, the nation already has a model in place for such a position: the inspector general. Established by statute in 1978, the inspector general is a relatively independent government office tasked with neutrally assessing whether members of the executive branch have violated constitutional principles. The public-defender version could notify the court of constitutional and ethical violations related to the delivery of public-defender services. This position would also reaffirm the role of the public defender as a protector of the general public, as it serves as a check on the government’s intrusion into a citizen’s life through the criminal process.

Indeed, this watchdog role was at the heart of the creation of the public-defender institution. As the Court noted in Gideon, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals … This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” To fully realize that early vision, the institution requires structural changes, including the addition of a leader in an inspector-general role. This person would ensure that the attorneys who safeguard clients’ rights are provided for and are safe from reprisal for doing so—in other words, they would protect the protector.

When the state wields its power against a defendant in a criminal proceeding, the defendant uses the Sixth Amendment as a shield. After a conviction, the amendment transforms into a sword, as the defendant can bring a claim of ineffective assistance of counsel to challenge their conviction on appeal. The public-defender institution needs a similar system to protect clients’ rights. Reorganizing to more securely place itself in one of the state branches of government while also adding a defensive entity would allow the institution to exist in a more stable and effective manner.

Dean Beer and Keisha Hudson did exactly what the Constitution and professional rules mandate. This form of advocacy is critical to achieving the kind of reform protesters are currently demanding, calling attention to the racism and classism that have permeated the criminal-justice arena for centuries. The lack of an entity to address the attorneys’ dismissal is a fundamental flaw in a system meant to protect the powerless from the powerful. Fixing this flaw will protect not just public defenders, but their clients, too.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

March 5, 2021

Local Taxes Have Lots of Untapped Potential

[Cross-posted from The Recorder]

By Darien Shanske and David A. Carrillo

Help may be coming at long last from the federal government, but California local governments are likely to face fiscal challenges as a result of the pandemic and recession for a long time. After all, many of those local governments faced major issues before the current crisis. It turns out that a 2017 decision by the California Supreme Court might offer some communities the ability to help themselves.

When the California Supreme Court decided California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, we — and others — argued that the court opened the door for local initiative measures to adopt special taxes by majority vote rather than the supermajority that ordinarily applies to taxes. The issue of whether local tax initiatives can be passed by majority vote has now been litigated in three court of appeal decisions, and our prediction is coming true: All three decisions expressly adopted a majority vote rule for local special tax initiatives.

In City and County of San Francisco v. All Persons Interested in Proposition C (2020) 51 Cal.App.5th 703, 61% of the local voters approved a proposed initiative tax. Opponents argued that California constitution Article XIII A, Section 4 and Article XIII C, Section 2(d) (Proposition 13 and Proposition 218, which require special taxes proposed by local governments to be approved by two-thirds of the voting electorate) applied to special taxes adopted by local initiative. Following Upland’s reasoning, the court of appeal relied on the electorate’s reserved initiative power to reject that argument and held that local voters may exercise their initiative power to adopt a special tax by a simple majority. The same issue was presented in City of Fresno v. Fresno Building Healthy Communities (2020) 58 Cal.App.5th 884, and Howard Jarvis Taxpayers Association v. City and County of San Francisco (A157983). Both decisions adopted the reasoning in San Francisco and adopted the majority vote rule for local special tax initiatives.

All three decisions were unanimous, and the court of appeal published all three decisions. That makes them the only controlling law on this issue, so Superior Court judges have little choice but to follow them. And absent an appellate division split, the California Supreme Court is unlikely to disturb these rulings. Indeed, the state high court denied review in San Francisco; a review petition is pending in Fresno; and the court of appeal denied rehearing in Howard Jarvis.

These rulings are correct; they are natural extensions of Upland and properly build on doctrine that preexisted Upland. Courts have long held that the initiative power is not subject to the same constraints that apply to local governments or the legislature and have historically been skeptical of two-thirds vote requirements.

The San Francisco decision noted that two-thirds requirements must be “strictly construed” in the initiative context due to the “fundamentally undemocratic nature of the requirement for an extraordinary majority.” That principle derives from City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47—a decision that was overturned by Proposition 218. Relying on Farrell now shows both how skeptical courts are of supermajority requirements, and how compelling the judicial imperative to jealously guard the initiative power is. Look for this skepticism of supermajority voting rules in future initiative cases.

The concern about supermajority requirements partly flows from the fact that the simple majority rule for initiatives has been in effect from direct democracy’s inception. Since then California voters have permitted just three modifications to their direct democracy powers—and none of those changes reduced their powers. It would be a significant departure from that history for the initiative power to be limited by the voters, which is another reason we think the court in Upland was correct to hold that such a limitation “require[s] clear evidence of an intended purpose to constrain exercise of the initiative power.”

This trend is also consistent with the California Supreme Court’s treatment of local control over taxation. Unlike many states, the California Supreme Court has interpreted a charter city’s home rule power to extend to taxation. Our state high court has also interpreted the initiative power broadly in the taxation context. Though it would not be an outright contradiction to apply a supermajority rule to local tax initiatives, it would be at least incongruous for the courts to take away the local electorate’s power over taxation after recognizing the importance of local control over finances in these related contexts.

We think the more interesting question is not whether a court should or would depart from these three decisions, but how their implications can be harnessed to make life better for Californians. The initiative power is explicitly granted to counties and cities, but not to school district electorates. Yet there is a strong argument that school district voters retain the initiative power and could pass tax measures by majority vote. It would be even better, of course, if the legislature gave school district voters this power by statute. It would be better still if the legislature also expressly permitted local governments to impose tiered parcel taxes so local voters could approve measures that do a better job of spreading the tax burden.

We understand that extending the Upland reasoning has already stirred up some opposition, even a threat of a constitutional amendment imposing a supermajority rule on local voters. But, as we have argued, it’s not clear that Upland can be undone that way. Upland’s clear statement rule is, we think, predicated on the notion that certain powers are reserved for the local electorate. And thus the state electorate could not change the power of local voters unless the change resulted from a constitutional revision. As a result, we think the power of local voters to impose taxes on themselves by majority vote using the initiative power is here to stay.

March 5, 2021

Follow the science: Schools can reopen safely

[Cross-posted from the San Francisco Chronicle]

By Dennis J. Ventry, Jr., Monica Gandhi and Deborah Simon-Weisberg

Gov. Gavin Newsom and legislative leaders have unveiled another plan to prod public schools across California to reopen. It provides $2 billion to districts that resume in-person instruction by March 31, another $4.6 billion to address learning loss, and punishes districts that fail to reopen by the deadline.

The plan is bound to fail.

It will fail for the same reason other plans, perks, and persuasion have misfired over the last 12 months: It provides no money and no strategy to overcome the kind of false and unscientific thinking that closed schools a year ago. And because the plan avoids mandating the number of days and hours a school must open to receive new funds, it permits the forces peddling pseudoscience to scare administrators, teachers, and parents into embracing a hybrid model (part in-person, part remote) that would be even worse than what we have now.

A year ago, with scant knowledge of a novel pathogen, the thinking was that kids would be the primary drivers of COVID-19, while schools would be super-spreaders and school closures would save lives. “We were wrong,” says Dr. Jeanne Noble, head of the UCSF Emergency Department’s COVID-19 Response. After intensive research and study, the scientific consensus is that adults are the primary drivers of the virus, and schools can be sanctuaries with significantly lower infection rates than surrounding communities. Moreover, low school rates mean low to zero school-to-home rates.

But some players in the open school debate continue to advocate as if it were March 2020.

The head of the Berkeley Federation of Teachers, Matt Meyer, recently articulated this unscientific thinking. Schoolchildren “play a significant role spreading infections,” and “act as vectors for transmission,” Meyer falsely stated. He also cited a CDC report indicating in-school transmissions can be controlled in communities with low rates of spread. He was right about that. But he ignored the CDC’s more important finding that even in communities with high rates of spread (i.e., 100/100,000 daily cases), in-school transmissions can be close to zero. Inexplicably, Mr. Meyer says Berkeley teachers won’t return to classrooms until Alameda County’s rate falls below 4/100,000 (it is 8.2/100,000, and falling).

This thinking not only ignores science, but the experience of open schools.

Private schools in the Bay Area have been open since last fall, with preschools open earlier, safely educating and caring for the kids of parents across the state. In Marin County, schools have been open since September with over 1 million in-person “student days” and zero student-to-teacher transmissions. In San Francisco, private schools have taught in-person classes to K-12 students for 6 months also with zero student-to-teacher transmissions. Studies report similar findings across the country, even in communities with significantly higher case rates than the Bay Area.

In short, a year into the pandemic we know unequivocally that schools can reopen safely to in-person full-time learning. Key mitigation strategies are essential, and include universal masking, social distancing, basic hand hygiene, and proper ventilation focused on open doors and windows and eating outside. In fact, proper masking for teachers (cloth mask over medical mask or medical mask with knotted ear loops and tucked-in sides) combined with sufficient distancing (3 feet rather than 6 feet) is as effective as vaccines in reducing COVID transmissions. Mitigation procedures are complementary so a stronger mask will allow less distancing. And once teachers are vaccinated, social distancing will be even less necessary since vaccines are so protective against severe disease and definitively decrease transmissionPresident Biden and Governor Newsom both have committed to vaccinating teachers this month.

We also know what is not required to reopen schools safely: universal child COVID testing; keeping kids 6-feet apart at all times; low community case rates; or infrastructure changes.

Yet these realities are muted in the debate to reopen schools, and nowhere to be found in Newsom’s new plan. Without an educative component, there is no counterpoint to the false and unscientific claims of powerful forces.

The head of the California Teachers Association, E. Toby Boyd, insists that schools will remain closed until every teacher is vaccinated. At the same time, Mr. Boyd has falsely questioned the efficacy of those vaccinations. He’s further falsely claimed that “all research” shows that universal testing of teachers and students is required for safely reopening schools.

This is not true. Vaccinating and testing are not prerequisites to reopening schools, although vaccination will lead to uncompromised safety for teachers in the school setting, which we support. The efficacy rate for preventing hospitalizations and deaths due to COVID-19 is 100% for all three vaccines now deployed in the United States. Vaccines are also effective against coronavirus variants, and banish any doubt about opening schools.

Meanwhile, the harm unleashed on California schoolchildren mounts. “Every place you look—signs of social phobia and isolation all the way up to suicide attempts — screams crisis,” says Dr. Noble of UCSF. Local hospitals report the devastation: twice as many kids requiring mental health services: 75% more requiring immediate hospitalization; a 130% increase in kids hospitalized for eating disorders; child psychiatry beds full; the highest number of suicidal children on record. And that’s just those who make it to hospitals; for others, the mental illness wins.

Beyond the crushing emotional toll of closed schools, reports indicate potentially insurmountable educational deficits. These include substantial learning loss among California schoolchildren in English and math with a disparate impact on low-income, English-learner, and underrepresented students (herehere). One study estimates that while all students could lose 5-9 months of learning by June 2021, students of color could lose 6-12 months.

The academic slide will have lifelong impacts on “a lost generation of students.” In combination with the crisis in students’ mental health, closed schools “will be a worse pandemic than COVID.”

The scientific consensus long abandoned its thinking of March 2020. Those hawking pseudoscience have not. Renewed efforts to open California’s public schools need to advocate a year’s worth of science so that the same thinking that closed schools a year ago doesn’t win again.

UC Davis Law Professor Dennis J. Ventry, Jr. Ph.D., JD is the parent of a Berkeley Unified School District (BUSD) student. Monica Gandhi M.D., MPH is a professor of Medicine and Infectious Diseases Doctor at UCSF. Deborah Simon-Weisberg MD is the parent of a special education student in the BUSD and the program director of the Family Medicine Residency Program at Lifelong Medical Care.

March 1, 2021

This is a good time for the Legislature to invest in California by taxing large, profitable corporations

[Cross-posted from CalMatters]

By Reuven S. Avi-Yonah, David Gamage and Darien Shanske

A year into the COVID-19 crisis, the gap between corporate profits and economic security for the average American is wider than ever. Since March 2020, 45 out of 50 of America’s largest companies have made a profit and in some cases the profit has been quite substantial

Meanwhile, unemployment in California increased dramatically in 2020, from 5.5% in March to 9% in December. Many more Californians have been thrown into housing instability, worsening an already urgent issue. 

Reversing the housing crisis and addressing homelessness in particular will require large and regular investments. Assembly Bill 71, introduced by Democratic Assemblymember Luz Rivas, is a bold step to making these investments and takes into consideration that California has a lot of needs, and its current budget surplus is not expected to last. Hence, AB 71 funds itself by means of a targeted tax increase that will be paid for only by the largest corporations best able to pay.

This is an appropriate revenue source, as corporations have paid an ever smaller share of their profits in taxes over the last several decades. Some of this decline was the result of deliberate decisions: Between 1980 and 1997 California lawmakers cut the corporate tax rate from 9.6% to 8.84% – and it hasn’t changed since then. 

Bottom of Form

This decline in taxes paid by large corporations was also because the state failed to act as certain very profitable corporations got cannier about exploiting major loopholes that allow them to avoid paying taxes even further.  

Corporate tax avoidance is so rampant that even the 2017 tax bill, which was loaded with breaks for large corporations and the wealthy, included several provisions meant to combat these loopholes. In particular, the Trump tax bill established a methodology to both identify and tax income improperly shifted out of the U.S. tax base.  This income is known by the acronym “GILTI,” which stands for Global Intangible Low-Taxed Income.

Restoring California’s corporate tax rate to 9.6% on corporations making more than $5 million in profits per year, as well as taxing the shifted income known as GILTI, are two sensible tax reforms that on their own are projected to provide sufficient funds for AB 71’s robust approach to reversing the cycle of homelessness.  

Don’t buy the scare tactics of multinational corporations threatening to move their headquarters from California because of this bill. California’s corporate income tax is based on sales made in California and applies regardless of whether a corporation has its headquarters in California or elsewhere. Thus, bolstering California’s corporate income tax would not create any incentives for California-based corporations to move out of the state.

Even before the pandemic, it made excellent sense to ask our largest and most profitable corporations to pay as much as they did in the 1980s. Given the state’s current urgent needs, what was once a good idea is now vital for the future health of our state.

March 1, 2021

Episode 50: 'Deplatforming and Section 230'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

Following the Jan. 6 riot at the United States Capitol, the major social media platforms banned former President Donald Trump, and many accounts related to far-right conspiracy theories. In response, conservative activists have called for the repeal of Section 230 of the Communications Decency Act, saying it would prevent “censorship” of right-wing viewpoints in the future. But what does Section 230 actually say? How are the social media companies determining what can be on their platforms? Listen to episode 50 of the What Trump Can Teach Us About Con Law podcast.

February 25, 2021

From 'aliens' to 'noncitizens' -- the Biden administration is proposing to change a legal term to recognize the humanity of non-Americans

[Cross-posted from The Conversation]

By Kevin R. Johnson

A profound change has been proposed by the Biden administration for U.S. immigration law. Following up on candidate Joe Biden’s promise of immigration reform legislation, the U.S. Citizenship Act would eliminate the term “alien” from the U.S. immigration laws.

The country’s bedrock immigration law, the Immigration and Nationality Act, would be amended to say that “[t]he term ‘noncitizen’ means any person not a citizen or national of the United States.”

Some might think that terminology is not a big deal. But as a scholar of immigration and civil rights law, I believe that the one-word change could deeply influence Americans’ views about the rights of noncitizens and, by so doing, the future trajectory of immigration law and policy.

In forging immigration law and policy, it is far easier to deny the humanity of an “alien” than to do so for a “noncitizen.” The use of the word “alien” helps rationalize the severe treatment of noncitizens of color, from detention in cagesfamily separation and more.

Signaling attitude

Consider that, in restricting immigration and deportations, generations of U.S. government officials, but especially those of the fervently anti-immigrant Trump administration, frequently used the term “illegal aliens.”

For instance, President Donald Trump tweeted in 2019 that the U.S. Immigration and Customs Enforcement agency “will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States.”

Officials in other presidential administrations, such as President Barack Obama’s, used “undocumented immigrant” to refer to the same people.

Similarly, use of language by Supreme Court justices telegraphs how a case will come out, as well as suggests a justice’s attitude about immigrants and their rights. In writing for the Supreme Court in 2020 upholding deportation of an asylum seeker without a hearing, Justice Samuel Alito wrote in the first line of the opinion that “[e]very year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally.”

In contrast, Justice Sonia Sotomayor, in finding in favor of the immigrants, wrote for the majority, “[t]he Court uses the term noncitizen throughout this opinion to refer to any person who is not a citizen or national of the United States.”

Targeting immigrants

The first federal immigration legislation, the Chinese Exclusion Act of 1882, expressly targeted Chinese immigrants for exclusion from the United States from 1882 to 1965. Over time, the terms “alien” and “illegal alien” replaced the references to the Chinese in the immigration laws.

The word “alien” is the core of the Immigration and Nationality Act of 1952, which as amended constitutes the comprehensive U.S. immigration law. The law governs which “aliens” may be admitted to, and deported from, the United States. Immigration law dictates that the “term ‘alien’ means any person not a citizen or national of the United States.”

The term “illegal alien” has been criticized as a racial code for immigrants of color.. Today, “illegal alien” often is employed to refer to Mexicans and Central Americans.

“Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States,” former President Donald Trump said in mid-2019.

Late in the 2020 presidential campaign, Trump aide Stephen Miller tried to discredit Biden’s immigration policies by saying that Arizona, for example, “will be overwhelmed by hundreds of thousands, millions of illegal immigrants because they get apprehended, they get issued a court date and they get released.”

Terminology matters

In a law review article published more than 20 years ago, I criticized the dehumanizing impacts of alien terminology and how it helps to rationalize the harsh treatment of people:

“Citizens have a large bundle of political and civil rights, many of which are guaranteed by the U.S. Constitution; aliens have a much smaller bundle and enjoy far fewer constitutional and statutory protections…. [T]he use of the term alien helps to reinforce and strengthen nativist sentiment toward members of new immigrant groups, which in turn influences U.S. responses to immigration and human rights issues.”

The legal creation of the “alien” helps to justify the fact that our legal system offers noncitizens only limited rights. Constitutional law scholar Alexander Bickel noted that the use of terms that dehumanize people helps justify the denial of rights because it is easier to deny rights to a nonperson.

Consider the public debate. Advocates of immigration enforcement claim that today’s faceless “illegal alien” invaders must be stopped. For example, Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services in the Trump administration, was a founder of a group more than a decade ago that described “illegal aliens” as “foreign invaders” responsible for “serious infectious diseases, drug running, gang violence, human trafficking, terrorism.”

The Federation for American Immigration Reform, an advocacy group that works to limit immigration, recently issued a press release announcing that “Illegal Alien Population Soars to a Record 14.5 Million Amidst COVID-19 Pandemic.”

Glenn Spencer, the president and founder of American Border Patrol, an advocacy group that tracks migrants crossing the U.S.-Mexico border, has said that “[e]very illegal alien in our nation must be deported immediately. …”

Although a seemingly minor and technical change, the elimination of “alien” from the U.S. immigration laws might transform the entire discussion of immigrants.

Terminology matters. Humans, not faceless invaders, are affected by the immigration laws. “Noncitizen” is more neutral than “alien.” On this score, the U.S. Citizenship Act would take a small but important step toward treating immigrants with humanity.