April 30, 2012

Public Perception and the Law in Arizona v. United States

Cross-posted from

Last Wednesday, the US Supreme Court heard oral arguments in Arizona v. United States, the case challenging the constitutionality of the controversial Arizona immigration enforcement law known as SB 1070 [PDF]. This article will hazard a prediction about the outcome of the case, which might well be one of the Court's most significant immigration decisions in many years. It also will demonstrate how divergent the public debate is from the legal discourse about state immigration enforcement laws.

A Prediction

The US government filed suit to challenge Arizona's SB 1070, as it did with respect to Alabama and South Carolina copycats, on the grounds that it violates the Supremacy Clause of the US Constitution, which makes federal law the "supreme law of the land." The claim is that SB 1070 impermissibly intrudes on the federal power to regulate immigration and therefore is unconstitutional.

The US Court of Appeals for the Ninth Circuit agreed with the US government in striking down four provisions of SB 1070:

  1. Section 2(B), which requires state and local law enforcement to verify the immigration status of persons subject to a lawful stop, detention or arrest when the officers have a "reasonable suspicion ... that the person is an alien and is unlawfully present in the United States";
  2. Section 3, which would make it a crime under Arizona law, in addition to federal law, to fail to complete or carry an "alien registration document";
  3. Section 5(C), which would make it a crime for a person to apply for, solicit or perform work without proper immigration authorization; and
  4. Section 6, which would allow a police officer to arrest a person without a warrant if the officer has "probable cause to believe ... [t]he person ... has committed any public offense that makes the person removable from the United States."

The Ninth Circuit was unanimous in invalidating Section 3, which is directly contrary to Supreme Court precedent, see Hines v. Davidowitz. It also unanimously struck down Section 5(C), which criminalizes the conduct of undocumented employees and goes well beyond the civil sanctions that US immigration law allows to be imposed on undocumented workers. However, Judge Carlos Bea dissented from the majority's holding invalidating Sections 2(B) and 6, the two provisions involving state and local police enforcement of the US immigration laws.

Before the oral argument in Arizona v. United States, I suggested that a majority of the Supreme Court just might agree with Judge Bea and uphold two of the four provisions before it. The oral arguments have convinced me that a majority of the Court will in fact agree with Judge Bea. During the arguments, almost all of the eight justices participating in the case expressed agreement in whole or in part with his approach (Justice Elena Kagan recused herself from the case).

Surprisingly little questioning in the arguments centered on the Court's recent preemption decisions involving the US immigration laws. In De Canas v. Bica, the Court stated that the "[p]ower to regulate immigration is unquestionably exclusively a federal power." Although that language sounds clear, the Court proceeded to uphold a California law allowing for the imposition of sanctions on the employers of undocumented immigrants. Last year, in Chamber of Commerce v. Whiting, the Court reiterated federal supremacy over immigration ("Power to regulate immigration is unquestionably ... a federal power") but refused to disturb an Arizona law that allowed the state to strip the licenses of businesses that employ undocumented immigrants.

Rather than ask how its precedents applied to the case at hand, the justices' questions focused primarily on the operation of Section 2(B) of SB 1070, particularly how quickly Arizona police could check with US immigration authorities about the immigration status of a person. Appearing persuaded that such a check by local police would not be too time-consuming, the justices expressed skepticism about the US government's claim that Sections 2(B) and 6 were preempted by federal law. There was little discussion of Sections 3 and 5(C), but what limited discussion there was hinted that the justices believed that these sections were, as a unanimous Ninth Circuit concluded, unconstitutional.

Public Debate v. Legal Debate

While the Supreme Court argument centered on the power of the states to assist in the enforcement of the US immigration laws, many critics of the state immigration laws are less worried about state intrusion on federal power over immigration and much more concerned that the laws would encourage discrimination against Latinos, including lawful immigrants and US citizens. Specifically, the Arizona law (like many of the others) requires state and local law enforcement officers to verify the immigration status of person who they have a "reasonable suspicion" are undocumented.

Some observers claimed that SB 1070 would increase racial profiling of Latinos. The key question was how police would decide whether there was, as Section 2(B) provides, a "reasonable suspicion ... that the person is an alien and is unlawfully present in the United States." The fear is that "foreign-looking" people, especially Latinos, will bear the brunt of the mandatory immigration checks. Concerns with racial profiling contributed to the considerable public attention received by SB 1070 and Arizona v. United States.

As discussed above, the oral arguments focused on federal preemption law, not racial profiling. Counsel for the US government emphatically denied that racial profiling was at issue in the case. Counsel for the state of Arizona, as well as the justices, eagerly accepted that denial. The justices therefore did not ask questions about whether Section 2(B) of SB 1070 might result in the racial profiling of Latinos.

Unlike some of the other plaintiffs in related cases challenging the Arizona law, the US government had not made any claims that SB 1070 violates the Equal Protection Clause of the Fourteenth Amendment because it was adopted with some kind of invidious discriminatory intent. Claims of discrimination will likely have to wait another day, with the issues possibly addressed in the other cases challenging SB 1070 or in a new challenge based on the application of Section 2(B) by police.

It should be readily apparent that there is a serious disconnect between the public debate over Arizona's SB 1070, as well as similar state immigration enforcement laws, and the legal arguments in the Court. This is not entirely surprising. Indeed, I predicted this outcome even before the Court granted certiorari in the case.

Despite the Court's focus on federal versus state power in the realm of immigration, serious civil rights concerns lurk in the background of the legal arguments in Arizona v. United States. Namely, Latinos and immigrants fear that SB 1070's mandate that state and local police check the immigration status of persons whom they "reasonably suspect" are undocumented, will result in racial profiling at levels never before seen. Those familiar with the civil rights record of Maricopa County, Arizona, Sheriff Joe Arpaio, who according to news reports may soon be indicted for criminal civil rights violations, know that this fear is real.

Unfortunately, if the Supreme Court decides the case as I predict, the public concerns will go unaddressed as a matter of law — at least for the time being. Still, the discontent with the ruling among some segments of the public will likely be palpable and result in sharp criticism.


The Supreme Court will likely reverse the Ninth Circuit and uphold two of the four provisions of Arizona's SB 1070 before it. The two that will be upheld will allow the state to require local police to check the immigration status of persons about whom they have a "reasonable suspicion" are undocumented. The Court's ruling will likely draw the ire of civil rights advocates and make clear the wide gulf between the federal and state power issues addressed by the Court and the civil rights concerns of certain segments of the public.

However the Court decides, Congress has the power to address the issues raised by Arizona v. United States. To justify SB 1070, Arizona political leaders contend that the US government is failing to enforce the immigration laws. It is hard to contend, however, that the Obama administration is not enforcing the law when it has deported more immigrants than any other administration in US history, including nearly 400,000 last year. In any event, the frustration with the current immigration system ultimately is for Congress, not the states, to address through comprehensive — and national — immigration reform, which could make clear the role, if any, of the states in immigration enforcement.


April 27, 2012

Five Free Speech Myths of Which College Demonstrators and Protestors Should Be Aware to Avoid Unexpected Trouble

Cross-posted from Justia's Verdict.

’Tis the season to be a college protestor.  With a momentous presidential election on the horizon, the Occupy Movement promising to kick into high gear again, and young adults facing uncertain job prospects and ever-increasing higher education costs and debt loads, students at campuses across the country are understandably seeking ways of demonstrating their deep discontent and anxiety about the status quo.

My own university—the University of California—has seen its share of unrest.  Protests at UC Berkeley, the birthplace of the so-called “free speech movement” in the 1960s, got ugly last fall, with police who were ostensibly trying to remove encampments using batons against students.  Things got out of hand here at UC Davis last fall too, with a campus police officer employing pepper spray against seated student protestors.

And more recently here at UC Davis, protestors—objecting to what they, at least, viewed as an example of the unhealthy privatization of higher education—obstructed access to a branch of a bank located on campus. (Many ardent advocates of higher education had no objection to the bank; the bank had leased space from the University to serve the campus community, and the lease would have provided two million dollars or more to the university over a 10-year period.)

After the blockades took place, notwithstanding repeated warnings from authorities that blockaders risked serious punishment, the university administration and campus police identified several students who had participated in the obstructive protests for prosecution by the County District Attorney, under state penal code sections making it a misdemeanor to willfully obstruct public walkways and places or to intentionally interfere with any lawful business. The bank provided evidence to the District Attorney’s office as well. Last month, 11 students and one faculty member were ordered to appear for booking and arraignment on misdemeanor charges of obstruction and conspiracy to commit a misdemeanor.

One of the things that has surprised me most about this episode and its aftermath is how many people—many of them sophisticated, well-educated folks—mistakenly believe that because the blockaders were obstructing the bank’s business for what they viewed as a righteous political reason, their actions were legally protected under constitutional principles of free speech.  In other words, many people are surprised to learn that the First Amendment permits punishment of this kind of expressive demonstration.  So in order to help students and other would-be protestors know when their activities will likely get them punished (so that protestors may then weigh, in an informed manner, the costs and benefits of proceeding), I offer five First Amendment myths that apparently need debunking:

Myth No. 1:  The Expressive Intent or Motive of the Protestor Is the Most Important Factor in Determining Whether His/Her Speech Can Constitutionally Be Prohibited

On rare occasions, people who are doing something to express a message—especially a political message—are immune from a regulatory law on account of their message and the particular place and time at which they need to express that message in order to be effective in communicating it.  And the Supreme Court has often said (for example, in last year’s funeral protestors case, Snyder v. Phelps) that speech about “matters of public concern” (e.g., public policies, elections, etc.) receives the highest level of First Amendment protection.

But just because you are involved in an expressive activity about something you think is important does not mean you have an automatic exemption from generally applicable laws that were passed, and are enforced, for reasons that are unrelated to the suppression of expression.  As one commentator (my brother, Yale Law Professor Akhil Amar) has put the point, The New York Times has no First Amendment license to ignore air pollution regulations.   And the U.S. Supreme Court itself has made the same kind of observation in a number of cases, perhaps most famously in United States v. O’Brien, where the Court upheld the prosecution of a Vietnam War protester who intentionally burned his government-issued official draft card, because the law prohibiting destruction of draft cards was designed not to censor, but rather to facilitate the administration of the Selective Service System.

In another seminal case, this one involving cross burning, a majority of the Court repeated the same essential idea:  “[N]onverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.”

Even some of the Justices who did not join the majority concurred on this point:  “It is true that loud speech in favor of the Republican Party can be regulated because it is loud, but not because it is pro-Republican; and it is true that the public burning of the American flag can be regulated because it involves public burning and not because it involves the flag.”

So it turns out that motive or intent does matter in First Amendment cases—but it is the government’s motive or intent, not the would-be speaker’s, that largely determines whether the First Amendment permits government punishment of an activity that someone is undertaking in order to send a message.

Myth No. 2:  Laws Regulating the “Time, Place and Manner” of Speech in a Content-Neutral Way Are Unimportant or Are a Pretext for Speech Suppression, and Thus Do Not Really Need to Be Enforced

Rules that govern the time, place and manner in which speech occur often serve weighty purposes, including the creation of an environment where those who shout the loudest are not the only ones whose speech gets to be heard. Unsurprisingly, then, the idea that no one need ever obey such rules because the rules are pretextual or unimportant finds no support in court decisions.

As the Supreme Court of California stated in an oft-cited free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizen’s rights of free association and discussion. … Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

So things like physical obstruction and blockades are conduct that government has always had the legitimate authority to proscribe, because the conduct so obviously obstructs the liberty and the lawful pursuits of others. Government prohibition of blockades or obstruction has been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and that statute raises harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected to gather.

To see an easy example of why anti-obstruction laws are necessary and proper, consider what would otherwise happen when two groups of opposing protestors both want to blockade a facility (say, the US Supreme Court, the day of the Affordable Care Act arguments) at the same time, or two opposing political groups want to blockade each other’s protests.  Without valid and enforceable time, place, and manner rules applicable to political protestors, political protests could easily and literally devolve into melees.

One critical reason why blockades and similar obstructions can be prohibited is that they are not intended to, and do not, persuade anyone of the merits of the protestors’ position.  They are employed to coerce third parties to change their behavior, not their minds. As such, blockades and the like are in some respects actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded—a commitment to the power of ideas, rather than the use of force, to change the way that people act.

Myth Number 3:  Expressive Conduct Is Treated No Differently Than Pure Speech Is

There is a kernel of truth to this statement, in that courts often do rule in favor of people who act, rather than utter words, to get their message across.  So, for example, a few decades ago the Supreme Court twice ruled in favor of protestors in striking down laws that tried to prohibit flag burning.  And it often makes sense to downplay the speech/conduct distinction, in that all speech requires conduct or action—moving the muscles in one’s fingers or arms to make a point shouldn’t be categorically different than using the muscles in one’s jaw.  So the government’s regulation of conduct can certainly raise free speech concerns.

Yet, crucially, these free speech concerns in the conduct setting arise when the government’s regulation of conduct is intended to suppress the message that the conduct is attempting to communicate. In those instances, government is not punishing protestors in order to protect the rights of third parties.  Rather, it is regulating protestors’ expressive conduct in order to censor the protestors’ message.  So, on closer inspection, the notion that expressive conduct is protected is simply a restatement of the idea discussed above in connection with Myth No. 1—that is, the idea that the government’s motive is important.  If government regulates your expressive conduct because it is expressive, then that is a problem.  A censorial government purpose is always illicit, whether the government is targeting your words or your actions.

That is the theoretical frame.  But in practice, when the government regulates your conduct, it often can point to many non-censorial motives, such as keeping good order, preventing violence, facilitating access to public space for everyone, and so on.  As a result, the government in the real world has a much easier time regulating conduct that is mixed with speech than regulating pure speech.  Put another way, the inference of problematic government censorship is easier to generate when the government regulates pure speech, rather than speech mixed with conduct, because the government doesn’t have as many plausible innocent objectives to which it can point when speech alone is at issue.

Myth Number 4:  The Authorities Could, if They So Chose, Cut Protestors a Break When the Protestors Are Trying to Speak Out on Important Issues to Accomplish Just Results

Some have suggested that authorities should excuse violations of time, place, and manner rules when the violations are politically motivated.  If the meaning of the word “political” here is understood expansively, then this argument would seem to reject the enforcement of all content-neutral time, place and manner rules.  After all, every intentional refusal to obey a rule can be understood to express the “political” message that the actor considers his or her conduct to be more important than any obligation he or she might have to comply with the rule.

Nor does the problem go away if we define the term “political” more narrowly. Perhaps some believe that obstruction and other violations of law should be excused whenever individuals are acting in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day.  Obstruction and blockades that protest things like government privatization, under this analysis, should be treated as permissible expressive activities.

If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, also could not be enforced against “political” anti-abortion activists who obstruct the entrances to clinics; anti-abortion protestors (or military funeral protestors, etc.) are assuredly expressing themselves on salient public policy questions.

And even if we could stomach the costs of permitting all protestors who are addressing big issues to do as they please, a government’s decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself likely violate the First Amendment.  That is because government cannot constitutionally discriminate on the basis of the subject matter of speech when it regulates expressive activity.

In Carey v. Brown, for example, the U.S. Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing that was connected to a place of employment from its coverage.  Similarly, if government were to treat obstruction as permitted speech, it could not permit some blockades and not others based on the government’s (contested) sense of the political salience of the protestors’ message.

Some people may try to define the desirable exceptions more narrowly still.  For example, in the UC Davis bank episode, some have suggested that participants in the blockade of the bank should not be punished because they are promoting a political cause that is just. But, of course, treating one political perspective more favorably than another constitutes viewpoint discrimination.  And a public agency that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based.  So the narrower the exception from enforcement is, the larger the First Amendment problem becomes.

Government can make enforcement decisions based on things unrelated to the content or viewpoint of the expression that is involved.  So enforcement decisions based on the extent of harm actually caused or threatened by the protestors, or based on how repetitive the violations of law are, etc., are permissible.  But enforcement agencies can get into First Amendment trouble if their enforcement pattern suggests any favoritism based on particular messages; as a result (and in order to avoid being unable to enforce laws when the laws are violated in the future), many government enforcement decisionmakers tend to act more mechanically than would otherwise be expected.

Myth Number 5:  Even if Rules Have to Be Enforced By Ordinary Governments, University Campuses Are Special Places Where More Expressive Conduct Should Be Permitted

As with some of the other propositions I’ve discussed, there is a grain of truth to this statement; universities are indeed dedicated to promoting free speech, and what counts as “disruption,” or “obstruction” might be different in the context of a university quad than in the context of, say, a post office parking lot.  So, provided that public universities do not treat protestors differently based on the subject matter or viewpoint of their message (which would violate the First Amendment), they may permit a bit more operational inefficiency than do other government actors, in the name of promoting free speech.

But the problems of governing a community with tens of thousands of residents who have conflicting desires to access services and use scarce property do not disappear simply because the community is also an institution of higher education.   Again, any relaxed enforcement stance by public universities with respect to liberal protests would necessarily mean that campus authorities could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services.  And you always have the problem of managing the use of limited property among competing protestors; when protestors want to counter-blockade each other’s protests, then enforcement of neutral time, place and manner rules are the only way to keep order.

One might think that private universities would be free to pick and choose how to enforce their rules, because they are not bound by the content- and viewpoint-neutrality norms of the First Amendment.  But in California, there is a statute that subjects private universities to the same constraints that the First Amendment imposes on public actors.  As long as this statute is not invalidated itself (and I do think it is open to some constitutional challenge), Stanford is no freer to selectively enforce its rules than is the UC.

Finally, I note that there is one other respect in which universities may be different (as least with regard to their students) than are other communities.  Namely, universities often have an administrative disciplinary system of enforcement (e.g., academic suspension, expulsion, etc.) at their disposal.  For this reason, criminal prosecution may not always be an appropriate or supportable response to protests that violate campus regulations or even penal laws governing on-campus conduct. In some cases, in-house discipline imposed by the university itself may be adequate and preferable, so long as decisions about which mode of enforcement to pursue are not made on the basis of the content or viewpoint of expression.

So the issue of what kind of sanction makes sense is an important one to keep in mind in the university setting.  So, too, are the related questions of how much, and what kinds of, force are appropriately used against students who violate university rules.  These two questions are beyond the scope of my column today, but obviously deserve careful attention.

April 26, 2012

PolicyMic Debate on Arizona Immigration: A State Cannot Have its Own Immigration Policy

Earlier this week, I was invited to participate in an online debate on over the legal issues surrounding Arizona SB 1070.  PolicyMic hosted the discussion with several legal scholars and think-tank scholars on how the Supreme Court should decide the case. 

Here is my essay, cross-posted from

The Supreme Court should affirm the court of appeal’s decision striking down four provisions of the Arizona immigration enforcement law known as S.B. 1070. The Arizona legislature’s stated – and impermissible – purpose is to pursue a state immigration policy of “attrition through enforcement” that both conflicts with, and undermines, U.S. immigration law and policy. S.B. 1070 therefore violates the constitutional mandate that federal law is the supreme law of the land.

Supreme Court precedent requires the affirmance of the Ninth Circuit’s ruling. For well over a century when Congress first passed comprehensive immigration legislation, it has been firmly established that the federal government has the exclusive reigns over immigration and nationality law. That makes perfect sense given that the regulation of immigration can have national impacts and foreign policy repercussions. As the Court stated unequivocally in De Canas v. Bica (1976), “[p]ower to regulate immigration is unquestionably exclusively a federal power.”

Federal preemption of state immigration enforcement laws like Arizona’s S.B. 1070 makes perfect sense. The U.S. government should be able to enforce the immigration laws without interference from the states. A state cannot, as Arizona sought to do, pursue its own state immigration enforcement policy. Such a patchwork approach to immigration law, with possibly 50 different policy variations, can allow the nation’s relationships with foreign countries to be held hostage to a rogue state or states.

Upholding the court of appeals ruling is consistent with the Supreme Court’s 2011 decision in Chamber of Commerce v. Whiting, which rejected a challenge to an Arizona law allowing the state to strip the licenses of business that employ undocumented immigrants. Federal immigration law expressly allows the states to use its licensing schemes in the manner that Arizona did in the law at issue in Whiting. S.B. 1070 is much broader in scope than a mere licensing law and claims to create an entire state immigration policy law. In addition, in Whiting, the Chamber of Commerce, not the U.S. government, claimed that the state had infringed on the federal power to regulate immigration.  Here, the U.S. government claims that Arizona’s law intrudes on federal power – and has damaged national interests by provoking protests made by the Mexican government as well as governments across Latin America. Needless to say, a claim of the infringement on federal power is more powerfully made by the federal government than the Chamber of Commerce.

Serious civil rights concerns lurk in the background of the legal arguments in Arizona v. United States. Namely, Latina/os and immigrants fear that S.B. 1070’s mandate that state and local police check the immigration status of persons whom they “reasonably suspect” are undocumented, will result in racial profiling at levels never before seen. Those familiar with the civil rights record of Maricopa County (Arizona) Sheriff Joe Arpaio know that this fear is real.

To justify S.B. 1070, Arizona political leaders contend that the U.S. government is failing to enforce the immigration laws. It is hard to contend, however, that the Obama administration is not enforcing the law when it has deported more immigrants than any other President in U.S. history (nearly 400,000 last year). In any event, the frustration with the current immigration system is for Congress, not the states, to address through comprehensive – and national – immigration reform.

(King Hall's Professor Gabriel "Jack" Chin and Professor Emeritus Bill O. Hing contributed to the debate, as well.  You can read their entries, respectively, here and here.)


April 23, 2012

Of Law and Self-Loathing

By Angela Harris.  Cross-posted from Concurring Opinions.

“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.

Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.

My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.

Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell  put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean ”democratic”) road to justice.

So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope  and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.

For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.

I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.

What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.

In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing;  and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.

More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.

What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.

Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.

April 23, 2012

SB1070 in the Supreme Court

By Gabriel "Jack" Chin and Marc Miller.  Cross-posted from ACS Blog.

Arizona v. United States, being argued Wednesday, will decide whether SB1070 is preempted by federal law.  We have previously co-authored papers about its complex provisions, and various legal doctrines that might be brought to bear on it, from the non-delegation doctrine to double jeopardy. But Arizona v. United States is, ultimately, a simple case.  Here is what we hope the Supreme Court understands.

SB1070 is preempted -- it is unconstitutional -- because it usurps powers that the Constitution, the Immigration and Nationality Act, and other federal statutes assign exclusively to the federal government. The Framers, Congress and the Court have consistently recognized that the security of the nation and fairness to non-citizens require that decisions and enforcement be under federal direction and control.

Four provisions of SB1070 are at issue. Three provisions involve direct immigration enforcement.

  • Section 2 requires that state and local police investigate the status of suspected undocumented non-citizens who have been detained;
  • Section 6 authorizes police to arrest non-citizens believed to be deportable; and
  • Section 3 criminalizes the presence of non-citizens in Arizona if they have not registered under federal law.

The fourth provision (§ 5) criminalizes working in Arizona without authorization, which is not a crime under federal law.

The first three provisions are invalid because they assume powers that Congress granted exclusively to the executive branch.  8 U.S.C. § 1103(a)(1) provides:

The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as [they] relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.

Section 1103's breadth and clarity is striking. It makes federal authorities responsible for the Immigration and Nationality Act (INA) “and all other laws relating to the immigration and naturalization of aliens." That is, Congress decided that there would be no laws relating to the immigration and naturalization of aliens not administered and enforced by the executive branch. 

In addition, the Attorney General's views "with respect to all questions of law shall be controlling." That is, Congress intended that there would be no circumstances that immigration laws could be applied or construed contrary to the views of the Attorney General.

The powers and duties granted to the Executive Branch "under the chapter" include precisely the powers Arizona arrogated to its own officers in SB1070: investigating suspected undocumented non-citizens (8 U.S.C. § 1357(a)(1)), arresting them if they are believed to be civilly deportable (8 U.S.C. § 1357(a)(2)), and regulating the presence of undocumented non-citizens in the United States without registering (8 U.S.C. § 1306(a)). Indeed, the overall purpose of SB1070--inducement of self-deportation and "attrition through enforcement" (§ 1)--is similar  to the procedure of "voluntary departure" under the INA, which is a power Congress granted to the Attorney General. (8 U.S.C. § 1229C)

There is no reason for a state to take these actions other than in the hope or expectation of putting the targets into the INA's removal process, or punishing them for violating requirements of the INA. That is, Arizona has no independent state purpose, other than in achieving what might be accomplished through administration and enforcement of the INA. 

The expressio unius principle suggests that powers granted in 8 U.S.C. §1103(a)(1) are exclusive. Further, the INA makes sense only as an exclusive regime; it cannot be that Congress intended unspecified others to be allowed to issue visas, grant asylum, or carry out deportations.  

In any event, there is a clear textual refutation to Arizona’s claim that Congress intended to share direct enforcement authority under the INA. Congress described the powers of state law enforcement officers in precisely this context as restricted to working with federal authorities: They have the power to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." (8 U.S.C. § 1357(g)(10)(B)). States may "cooperate," not overrule, with regard to "identification" covered by SB1070 § 2, "apprehension," covered by § 6, and registration provisions like § 3 designed to facilitate identification and apprehension.

These limitations differentiate SB1070 from the employer sanctions law upheld last term and similar cases such as De Canas v. Bica. Unlike SB1070, the laws upheld in those cases did not directly regulate immigrants themselves, did not purport to exercise powers given to federal officials or enforce or administer the INA, and, as the Court last term emphatically noted, operated in an area where Congress explicitly left room for independent state action.

The powers granted to investigate and arrest non-citizens would be perfectly consistent with § 1357(g)(10)(B) if they were exercised by request and under the direction of the Attorney General. But because the Attorney General has instead asked Arizona not to exercise them, Arizona is not "cooperating" and instead is attempting to exercise authority not delegated to them. For these reasons, §§ 2, 3 and 6 are preempted. 

Admittedly it would have been easy for Congress to insert an express preemption provision. Why did Congress not just say states cannot issue visas, grant asylum, deport non-citizens, create their own immigration crimes, or investigate and arrest for civil immigration violations contrary to the direction of the Attorney General? 

The answer is that the principle of federal exclusivity has been so well established for so long that it would be akin to wondering why the Constitution is silent on, say, the effect of the EPA Administrator's signature on a bill passed by Congress. For example, in 1954 -- a year in which the Court was clearly open to reconsidering old verities -- the Court ruled: "Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government.  . . .  that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government."

Congress, not the Arizona legislature, has the exclusive power to create immigration policy. This is why § 5 is invalid; just as Arizona cannot overrule the enforcement decisions of the Attorney General, it cannot overrule the policy decisions of Congress.

This principle dates back to 1876, when the Court's unanimous decision in Chy Lung v. Freeman squelched California's effort to prohibit Chinese immigration. The Court concluded that the state laws interfered with an exclusive power of the federal government; “the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.” 

Importantly, this principle goes beyond preemption; in 1876, the era of open borders, there was no existing federal law with which the California could conflict. While the Court recognized the state's  broad police powers, it held in a companion case that "no definition of [the police power], and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution."

Chy Lung made clear that "the manner of the [] execution" of immigration laws was as much part of federal power as drafting them. Conservative members of the modern Court have explained why: Administration as well as creation of immigration policy is tied to foreign policy and national security.

Thus, in Reno v. American-ArabAnti-Discrimination Committee,  the Court, in an opinion by Justice Scalia, rejected a claim of selective prosecution in the immigration context, because of the surpassing importance of executive authority. The Court recognized particular difficulties with “invad[ing] a special province of the Executive -- its prosecutorial discretion.”  "What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and techniques, but often the disclosure of foreign-policy objectives and … foreign-intelligence products and techniques."  This conclusion is consistent with the Constitution's general decision to keep states out of foreign policy (U.S. Const. Art. 1, § 10).

Congress had made clear in other laws that Congress, rather than the states, is where distinctions between aliens and citizens are to be made. 42 U.S.C. § 1981(a),  as Justice White famously explained in Runyon v. McCrary, was intended to protect Chinese immigrants, the very group targeted in Chy Lung

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Congress decided to keep the states out of the business of discriminating against non-citizens. This is consistent with, for example, the Framers’ decision to grant non-citizens access to the federal courts in Article III; human nature being what it is, the risk of local prejudice was too high.       

If the Supreme Court applies the plain language of the INA and follows its precedents, SB1070 will be resoundingly invalidated.  It should not be a close case.

April 17, 2012

The Context Surrounding Arizona v. United States

Cross-posted from ImmigrationProf Blog.

Commentators have remarked that the Court’s decision in Arizona v. United States could be one of the most significant immigration decisions in decades. Oral arguments are scheduled for April 25. It is difficult to predict the outcome, especially with Justice Kagan recusing herself. In any event, some context is necessary to understand the possible ripple effects of a decision in the case.

For several years, Congress has at various times considered proposals for comprehensive immigration reform. Reform proposals have failed on a number of occasions, even though both Democrats and Republicans agree that the current immigration system is nothing less than “broken.” The Immigration Nationality Act of 1952 (INA), forged in the era of the Cold War, understandably reflected Cold War concerns. Although amended regularly by Congress in the last half-century, including in a major overhaul in 1986 (the Immigration Reform and Control Act), the INA remains the foundation of the current immigration system.

President Obama has advocated “comprehensive immigration reform.” Such reform by most accounts includes increased enforcement measures, a path to legalization for undocumented immigrants, a possible guest worker program, and the so-called DREAM Act to allow undocumented college students access to a public university education. To convince nay-sayers of their good faith, the Obama administration has aggressively pressed immigration enforcement, annually setting all-time records – nearly 400,000 last year -- for the removal of noncitizens from the United States. Some of the programs, such as Secure Communities, which requires state and local law enforcement to cooperate with federal authorities in immigration enforcement, have contributed to the deportation records and has generated considerable controversy.

With Congress unable to enact reform, state legislatures have passed immigration enforcement laws at a record-setting pace. The stated aim has been to encourage undocumented immigrants in no uncertain terms to “self-deport.” Political leaders who support such laws claim that the U.S. government has “failed” to enforce the immigration laws.

Arizona’s S.B. 1070, passed in 2010, struck a raw nerve, receiving worldwide attention (including protests by the Mexican government) and even calls for an economic boycott of the state. In 2011, Alabama, Georgia, and South Carolina all passed strict immigration enforcement laws. See United States v. Bentley, 813 F. Supp. 2d 1282 (N.D. Ala. 2011), appeal pending; Georgia Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011), appeal pending; Complaint, United States v. Haley, No. 2:11-CV-02779 (D.S.C. filed Oct. 31, 2011).

Besides reacting to Congress’s failure to enact reform, the states were responding in part to unsettling demographic change. In the pursuit of agricultural and other jobs, Mexican migrants were moving into states that previously had seen relatively few of them. Critics contend that the laws had nothing to do with immigrants and everything to do with increasing numbers of people of Mexican ancestry moving into the states.

The U.S. government challenged the Arizona’s S.B. 1070 as well as its Alabama and South Carolina counterparts. The challenges are primarily founded on the U.S. Constitution’s Supremacy Clause, which makes federal law the “supreme law of the land.” U.S. CONST., ART. VI, cl. 2. The U.S. government specifically claims that the state immigration laws impermissibly intrude on the federal power to regulate immigration. The U.S. Court of Appeals for the Ninth Circuit (641 F.3d 339, 346-54 (9th Cir. 2011)) struck down four core immigration enforcement provisions of Arizona’s S.B. 1070.

Many critics of the state immigration laws are less worried about state intrusion on federal power over immigration and more concerned that the laws would allow encourage discrimination against Latinos, including lawful immigrants and U.S. citizens. Specifically, the Arizona law (as well as the others) would require state and local law enforcement officers to verify the immigration status of person who they had “reasonable suspicion” were undocumented. Some observers claimed that it would increase racial profiling of Latinos. Reaching a different conclusion from the Ninth Circuit in United States v. Arizona, a district court in Alabama upheld the Alabama immigration enforcement law’s requirement that state and local police check the immigration status of persons, United States v. Bentley, 813 F. Supp. 2d 1282 (N.D. Ala. 2011). The obvious question posed by civil rights advocates is whether “foreign-looking” people, especially Latinos, will bear the brunt of the mandatory immigration checks. Racial profiling in law enforcement, including immigration enforcement, is an evil that the nation has long sought to remedy, but has proven extremely difficult to eradicate.

To this point, the Supreme Court has not been altogether clear on the role that states can play in the enforcement of the federal immigration laws. In De Canas v. Bica, 424 U.S. 351, 354 (1976), the Court stated that the “[p]ower to regulate immigration is unquestionably exclusively a federal power”; although that language sounds clear, the Court proceeded to uphold a California law allowing for the imposition of sanctions on the employers of undocumented immigrants. (emphasis added). More recently, in Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1974 (2011), the Court reiterated federal supremacy (“Power to regulate immigration is unquestionably . . . a federal power.”) over immigration regulation but refused to disturb an Arizona law that allowed the state to strip the licenses of businesses that employ undocumented immigrants.

In sum, there is considerable uncertainty today about the extent of the power of the states to participate in immigration enforcement. Despite the uncertainty, states have not been inhibited from passing their own immigration enforcement legislation.

The Supreme Court in Arizona v. United States has the opportunity to provide guidance to the nation on the contours of state power over immigration. The Court’s decision thus could affect the efforts of many states to “assist” the U.S. government in enforcing the immigration laws. Besides addressing issues concerning federal versus state power over immigration, Arizona v. United States could directly or indirectly address the potential civil rights consequences on Latinos and immigrants of the state immigration enforcement laws. It is both sets of concerns that have contributed to dozens of amicus briefs filed in the case as well as the considerable public attention that the case has – and will – receive.

April 16, 2012

The Preacher and the Pragmatist: Remembering Derrick Bell

By Professor Angela Harris.  Cross-posted from Concurring Opinions.

I’m now old enough to have lived through several moral panics over critical race theory. There was that culture-wars-era (remember those days?) one over whether critical race theorists were destroying the legacy of the Enlightenment by publishing first-person anecdotes; there was the one about whether critical race theorists were anti-Asian and anti-Semitic for criticizing extant standards of “merit” in the context of affirmative action in higher education; connected with that, there was that flap over whether Richard Delgado’s skin was the same color as Richard Posner’s (young people, I swear I am not making this up! Google it!); and, of course, there was that time Jeffrey Rosen blamed O.J. Simpson’s acquittal on, you guessed it, critical race theory.

These are reduced days, and the most recent moral panic over CRT cannot compare in either grandeur or silliness. Still, I experienced a moment of nostalgia when video recently surfaced on YouTube of a sweetly young Barack Obama, then a student at Harvard Law School, introducing Professor Derrick Bell at what appears to be a rally. The tagline attached to the video refers to “radical racist Derrick Bell,” and a related video shows Soledad O’Brien frantically riffing off some clearly inadequate notes as she tries to defend critical race theory as a mainstream academic literature (watching her, I had the urge to shout encouragingly, “EPA!”). The “gotcha” moment that follows shows Bell explaining to an interviewer his sympathy with W.E.B. DuBois’s concept of “the wages of whiteness”: the idea that anti-black sentiment has been so hard to eradicate in American society because it serves the function of keeping poor and disempowered white people content with their lot, willing to identify with elite whites based on the symbolic community of race rather than making common cause with poor folks of other backgrounds based on economic interest.

Seeing Bell explaining this argument in his characteristically soft, courtly voice, and thinking about the juxtaposition of Bell and Obama, made me think about the preacher and the pragmatist. Not Bell as preacher and Obama as pragmatist, but the preacher and the pragmatist within Bell himself.

What’s true in the characterization of Bell as a radical is, of course, his thoroughgoing rejection of America’s official liberal pieties about race, the most important of these being the faith that racism either has already disappeared or could very soon, probably in our grandchildren’s generation (if we could just get rid of affirmative action, or fully implement it, depending on whether you skew right or left).  Bell is probably most famous for two concepts: the idea of “interest convergence” and the conviction that “racism is permanent,” and both – especially the second – were and continue to be deeply emotionally upsetting to many. Interest convergence is the idea that black people (about and to whom Bell largely spoke) will only experience improvement in their material condition to the extent that white people as a group believe that it serves their own interests. The idea that racism is permanent links back to DuBois and undermines another liberal faith: the idea that racism is peripheral rather than central to American society. The Bell who believed racism is permanent also believed that the American social contract is founded on racial identity, that Americanness and whiteness are too bound up in one another to ever be teased apart.

This side of Bell counseled pragmatism rather than idealism, rejecting King’s “I Have a Dream” speech in the most brutal terms. Under this view, the best strategy for black people is to appeal to white self-interest for moderate reforms; and we will never be post-racial as long as there is an America. Bell was accused of nihilism for taking this position. Yet there was another Bell too, a preacher in addition to a pragmatist.

Re-reading his book Confronting Authority, I get the sense that Bell was not an easy colleague, and not because of his personal style. Bell was always warm, gentle and mild-mannered, funny, and dedicated to dialogue even with those with whom he bitterly disagreed. He never came across as the stereotypical Angry Black Man. But he had the discomfiting habit of trying to live up to his principles and expecting everyone else to, too. His account of his personal strike against Harvard Law School – his decision to take leave unless and until a qualified black woman was hired to the full-time tenure-track faculty – is the best example. Like Peter Singer, the philosopher who tries to get affluent people to use their money and privilege on behalf of the worst-off instead of benefitting their friends and family, Bell was always taking an uncomfortable but principled stand and making you have to explain to yourself why you couldn’t do the same. This Bell was an idealist, not a realist. His answer to those who criticized his “permanence of racism” thesis was similarly disconcertingly idealistic: One fights against racism, even though we know it to be permanent, simply because it is the right thing to do, because we have a moral responsibility to do so. Preachers’ kids sometimes grow up to be odd people in this way: trying to live as God wants us to live rather than making the accommodations to social norms and physical and mental comfort that the rest of us do. I have no idea whether Professor Bell was a preacher’s kid, or whether he considered himself religious, but this aspect of his thought and life has that same unnerving quality.

In his book A Secular Age,  Charles Taylor argues that a signal social division of our time is between those who feel that the pleasures and pains of this world are all there is, and those who feel that there is something more. Derrick Bell placed himself on both sides of the divide. He was both a preacher and a pragmatist, deeply principled and deeply strategic. Both sides of him were uncompromising. People like that are seldom easy company, but they challenge us in a useful way: not only with their ideas, but with the shape of their lives.

April 16, 2012

Diversity Day!

Professor Angela Harris is a guest contributor to Concurring Opinions during the month of April.  This entry is cross-posted from

“Mom,” said my fourteen-year-old daughter. “What can I be for Diversity Day without being racist?”

As a good, progressive private school, my daughter’s school prides itself on its commitment to “diversity.” And like schools everywhere, it has a Spirit Week during which students and staff are instructed to do wacky things together in the service of building school spirit. Pajama Day! Crazy Hair Day! Superhero Day! This year, for some reason, the two mandates collided. Thus we got Diversity Day.

Someone, fortunately, had made a stab at thinking things through. We parents got an email from a school administrator warning us, “This is NOT a day to try to be someone else.” At least no one is going to show up in blackface, I thought with relief.

But what is Diversity Day supposed to be about? According to the email, “It is a day to celebrate a core aspect of the School’s mission by giving students the opportunity to celebrate their own cultural and/or family traditions. . . a day to express a certain amount of pride and respect for their families and backgrounds.”

Great, but there is complexity on top of complexity here. Begin with the fact that among the children of the Northern California professional-managerial class, there are hardly any who would claim a single “cultural and/or family tradition” for “their own.” These are kids with hyphenated last names and hyphenated backgrounds. The email to parents says, “They need to express themselves in a way that would make their grandparents proud of who they are.” Yes, but which grandparents? And who “are” these kids? Do they – or we – yet know? Yes, they have studied slavery and the Holocaust at school. My daughter and I have had lively discussions about President Andrew Jackson and his role in the Trail of Tears. But these children are fourteen and privileged and they live in the Bay Area; they are only now beginning to come into personal contact with the sharp edges of racism. I’m sure the parents of the eighth-grade black boys have already had several painful talks about being deferential and making no sudden movements when around strange white people or police officers. But I’m lucky; as mother of a girl, I only (!) have to worry about sex.

As in: “None of my friends think Asian boys are hot,” says my daughter. Some boy in her class has declared, “Black girls aren’t hot unless they look white.” To which my (black, curvy) daughter said sorrowfully, “I would have thought black girls would be attractive because they’re curvy.” We talk about the politics of personal ads; it seems grown-ups are also not quite post-racial in this area. And we try to unpack what “hotness” is supposed to mean, anyway.

Yet even these hard conversations are only tiny forays into the maelstrom of identity. High school and college, these days, are where the racial decisions really begin to bite for privileged kids. That accords, anyway, with the accounts of my “of color” students in their Critical Race Theory journals, who report being shocked when college classmates suddenly insisted on knowing “What are you?” or “Where are you from? No, really?” College is when those with complex identities and backgrounds are pressured by others to choose, to align, to make a stand.

Add to this confusion our national culture’s own vexed commitment to “diversity,” that peppy, All-American solution to the tragedy of racial subordination. Diversity is great because everyone has it already! Also, it’s good for everybody, since the corporate world, the military, and advertising can’t be wrong! But as Sheila Foster pointed out long ago, the downside of diversity is its emptiness; it can mean all things to all people and therefore nothing at all. And since everybody is different from everybody else, diversity is kinda automatic, no? “Should I just go as myself?” wonders my daughter. I respond, “If it’s their mission, then why isn’t every day Diversity Day?”

The truth, of course, is that race is the elephant in the diversity room. What we really care about when we talk about “diversity” is race and ethnicity, with perhaps a nod to gender, sexuality, and disability. But within the diversity framework, this commitment becomes fraught. When corrective justice was the paradigm, it made sense to put race and ethnicity at the center; flute players and yoga practitioners have not been targets for society-wide discrimination. If diversity for its own sake is the new goal, however, what do race and ethnicity become but skin color, eye shape, and quaint native costumes? Thus does Diversity Day pull us, ironically, toward the post-racial fantasy in which Martin Luther King, Jr. Day really is no different from St. Patrick’s Day in the United States: just another chance to be sold fun foods and drinks, and to feel good about how we are all the same beneath our superficial differences.

And I would be fine with that, were my daughter actually growing up in a world where no one would make her hotness depend on how “white” she looks.

Well, by the time she’s ready to go to college, of course, no doubt the Supreme Court will have ruled that diversity is not a compelling state interest after all and that higher education admissions in public schools must be race-blind. The question will be what these well-meaning private schools should do with their Diversity Days. New awkward rituals await, I’m sure.

But perhaps an awkward commitment to justice is better than no commitment at all.

P.S. I know: All these race problems are supposed to disappear in twenty-five years or less. Our innocent, colorblind children are going to lead us into the promised land. OK, I’ll wait.

P.P.S. Oh, and for those who want to know — She’s going to wear a pink triangle.

April 12, 2012

The High Court Needn’t Worry About Sliding Downhill: An Evaluation of the “Slippery Slope” Concerns Expressed at the Oral Argument in the Challenge to the Mandate Provision of the Affordable Care Act (Obamacare)

This entry is cross-posted from

Now that the dust is settling from the Supreme Court's oral arguments held two weeks ago in the challenge to the Affordable Care Act (ACA)-known by critics and some supporters as "Obamacare"-analysts are looking back on the questions and concerns raised by various Justices to see what the road ahead might or should look like.  In my column today, I address one of the key features of the oral argument landscape-the (to my mind, unwarranted) fear of a slippery slope that the individual mandate provision seemed to engender.

A Recap of the Oral Argument on the Constitutionality of the Individual Mandate Provision

Much of the questioning concerning the individual mandate provision covered familiar and easy terrain. No one seemed to doubt that the healthcare and healthcare insurance markets involve true interstate commercial problems.  After all, insurance and healthcare providers are usually national or at least regional operations; folks who cross state lines get sick and must be cared for away from home regularly; and people are often unable to relocate to another state for fear of losing their employer-based coverage.  Nor was it disputed that the individual mandate was sincerely motivated by, and closely related to, the regulation of these interstate markets and interstate spillover effects.  Those two conclusions are usually sufficient to justify the exercise of Congressional power under the Commerce Clause of the Constitution.

But then things got more treacherous.  The problem, suggested by numerous conservative Justices, was the slippery slope they saw in the mandate-the idea that Congress was requiring individuals to buy something.  The fact that Congress was not just regulating existing transactions, but rather compelling commercial activity where before there was only inactivity, raised red flags. If the feds can require each person to buy health insurance, what can't they force people to purchase?

As was widely reported, various Justices seemed worried: Would Congress also be able to force people to buy cell phones, or broccoli, or burial services?  Once you start allowing Congress to compel people to purchase goods or services, aren't you in a freefall that has only one conceivable endpoint-a world in which there are no limits to the federal government's Commerce Clause power to regulate the lives of all Americans.

This slippery slope concern did not originate at oral argument.  As one prominent challenger to the ACA, Randy Barnett, had put the point in an earlier essay:

Congress can mandate individuals do virtually anything at all on the grounds that the failure to engage in economic activity substantially affects interstate commerce. Therefore, [a theory that permits the healthcare law] would effectively obliterate, once and for all, the enumerated powers scheme that even the New Deal Court did not abandon.

Is the Fear of Falling in This Realm Reasonable?  One Already Established Tool: The Requirement of Proximity to Regulation of an Interstate Commercial Problem

I well understand the felt need for the courts to have tools to keep Congress within some bounds in the Commerce Clause and other areas.  As I have written elsewhere, I do not think that the so-called "political safeguards" argument advanced by the Court in Garcia v. San Antonio Metropolitan Transit Authority-that is, the argument that states do not need judicial protection because state government has adequate leverage over the federal government due to the role state governmental actors play in the selection of federal officials -fully works in light of changes to the Constitution over the decades. Nor do I agree with Justice Breyer's dissenting argument in U.S. v. Morrison that, given the realities of the modern world, it would be constitutionally unproblematic to say that Congress should be able to reach any conduct, no matter where it takes place and no matter how remote the effect it has on interstate economic markets may be.

But while I think courts should not abdicate a robust role in policing the boundaries of federalism, I also think that the tools judges should use must be of the right shape and size for the job. And I am struck by the fact that at the oral argument over the mandate, none of the Justices or lawyers pointed out crisply that we are already poised on equally treacherous slopes in interpreting the Commerce Clause, and that the Court has demonstrated that it has plenty of pitons available to arrest our slide and limit the scope of federal power.  As my colleague Alan Brownstein and I have pointed out in various fora, the slippery slope danger has been present in Commerce Clause doctrine for the past 50 years, and the mandate doesn't add slopes that are any more dangerous than those we've already been dealing with.  In other words, there is no persuasive basis for thinking that the individual mandate will create a steeper or more slippery slope-one that is less susceptible to judicial or political handholds and footholds-than those hazards we live with exist under current doctrine.

To understand this point, it's useful to remember that the Court has already determined that Congress has authority to prohibit people from possessing things under the Commerce Clause.  Just seven years ago, in Gonzales v. Raich, the Court held that the feds can ban the possession of marijuana.  It didn't matter how a person obtained the marijuana, how much he or she possessed, or whether he or she planned to consume rather than sell it.  Possession itself could be prohibited.

As Alan and I have observed, this would seem to put us on hazardous ground!  Does Raich mean that Congress can also ban the possession of cars, televisions, clothes, the tomatoes you grew in your garden, or the broccoli in the refrigerator?  What can't the federal government do, if it can ban the possession of all goods?

Yet the Court has said that even as the federal government might sometimes ban possession of things, the government's power in this regard is not unlimited. As Justice Scalia observed in his concurring opinion in Raich, the possession of marijuana in particular can be punished because such penalties are necessary to carry out a comprehensive regulatory scheme-the Controlled Substances Act-that governs a robust and interstate market in drugs.  Without that comprehensive regulatory scheme as an anchor and a clear tie-line connecting the ban on possession to the regulation of the market in illicit drugs, the ban on marijuana possession would exceed Congress' Commerce Clause power.

Of course, such an argument cuts in favor of, not against, the individual mandate in the healthcare reform law. The Affordable Care Act is a comprehensive regulatory scheme governing interstate commerce, and the individual mandate plays an important role in furthering that regulatory framework.

In other words, upholding the mandate in the Affordable Care Act does not mean upholding any and every random, hypothetical mandate a crazy Congress might enact, even assuming that such a rogue Congress could survive in office.

Or consider another example: No one doubts that under current doctrine the government can often regulate ongoing economic activity-the sale and purchase of goods and services.  Once we enter commerce as producers, sellers, or buyers, the government can regulate our economic transactions and activities.  That is widely accepted.

But think about the slippery slopes created by this acknowledged power.  Let's go back to broccoli, the commodity of choice during the oral arguments.  Congress might, instead of requiring purchase and consumption of broccoli, try to prohibit grocery stores from selling any vegetable-or any food-other than broccoli.  Or it might require people to purchase broccoli as a condition of purchasing other food, or other goods and services.  Can Congress pull us down this cliff?  If so, then who cares whether Congress can compel specific purchases to be made directly?  It can effectively compel people to buy designated goods by regulating or prohibiting consumer decisions to purchase other things.

Happily, I do not think the American people have cause for serious concern here either.  Some commercial regulations would lack the constitutionally required minimal rationality. In the extremely unlikely event Congress conditioned the purchase of, say, cars on the purchase of broccoli, the law would fail even deferential rational basis review by courts.  Moreover, some connections between a particular piece of a law and the larger comprehensive scheme regulating commerce that justifies Congressional attention in the first place are simply too attenuated to be upheld as constitutional.

The key point here is that these slippery slopes already exist. We have been standing on them for years under long-accepted interpretations of the Commerce Clause, and have held our position without tumbling into the abyss of unlimited federal regulatory authority.

Tools That Can Be Used for Limiting Powers in Settings Where Mandates Are Already Accepted

Another way to see that the Court already has the tools it needs, without creating a ban on commercial mandates, is to look at areas in which mandates are undeniably permitted-settings where people can't challenge government action merely because the government is affirmatively requiring something, insofar as affirmative requirements are concededly within Congress' power.  Consider, for example, a Congressional law that requires young persons to show up for military service. So far, so good-Congress' power to raise and support military troops has been understood to justify the draft.  But imagine further that Congress mandates that the men and women who might be drafted must procure health insurance because the government wants to make sure that its future draftees are fit and ready for action right away. If required health insurance is permissible under this reasoning, then the challenge to the ACA disappears because, of course, Congress is entitled to use not just the Commerce Clause, but rather all the powers within its enumerated panoply.  And if required healthcare is not justifiable under the power to raise armies, that result certainly does not follow from any activity/inactivity distinction; the draft itself obliterates that line.  Instead, it would come about because the relationship between raising armies and required healthcare is too attenuated.

Or imagine further that Congress mandated that all persons eat at least two servings of green vegetables and exercise vigorously for at least half-an-hour per day, on the theory that potential military troops need to be well-nourished and healthy. And so forth. If Congress is to be reined in from requiring whatever it might dream up, the limit cannot be found in any activity/inactivity line, but rather in some notion that there must be a proximate nexus between the power that Congress is given in the Constitution and the means that Congress has chosen to implement that power.  Notions of proximate relationship-a limit on attenuation, if you will-make some sense and probably do a good job of explaining the results in cases (like Lopez and Morrison) where the Court has struck down laws on the ground that they exceeded Congress' Commerce Clause power. But if requirements of proximity and limits on attenuation are needed and sensible, they demonstrate that the proffered activity/inactivity line isn't doing, and really can't do, the work.

Another Possible Tool Against Federal Overreaching-The Anti-Instrumentalization Principle

None of this is to say that attenuation is the only device the Court has-or should have-to keep Congress in check.  Not all congressional mandates are constitutionally permissible simply because they advance some otherwise legitimate federal goal in a direct and non-attenuated way. The Constitution itself, in some of its provisions and doctrines, prevents Congress from coercing certain kinds of action. As I and other commentators have pointed out, the Third Amendment prohibits the quartering of troops in private homes during peacetime, the Fifth Amendment prevents government from mandating self-incrimination and the surrender of property without just compensation, the First Amendment prohibits government from mandating that individuals be vessels for government speech, and the Supreme Court has held in the so-called anti-commandeering cases, New York v. United States and Printz v. United States, that federalism principles prohibit Congress from mandating that state governments exercise their regulatory power on behalf of federal goals.

On the other hand, the federal government can mandate taxes, and jury and military service, among other things, even if the individuals so mandated are doing nothing other than existing.

The question then becomes: when is a mandate that would in fact promote a legitimate end nonetheless constitutionally problematic? Although no simple line can be drawn to connect all the dots, it is noteworthy that with respect to those mandates that are acknowledged to be constitutionally impermissible, generally speaking the individual or entity being mandated is not contributing to the problem Congress is trying to solve in any distinctive way, or in a way that explains the extent of the mandate. For example, in the anti-commandeering cases, the states that were commandeered were themselves not in any way standing as an obstacle to Congress' ability to otherwise implement its regulatory objectives. They were, simply put, not part of the problem Congress was trying to fix, but instead had simply declined to be the solution Congress wanted them to be.

So too for the ban on quartering and the ban on compelled speech. In those instances, Congress might prefer that the individuals being mandated assist Congress with its goals, but the mere existence of these individuals does not create the problem (the need for troop accommodations, or the need for governmental speech) to which Congress is reacting, or at least it does not create the kind of problem that would explain imposing a focused mandate on those persons in particular. Instead, government could be said to be using the mandated persons as its own instruments for the accomplishment of an objective not especially related to those individuals, except in the sense that they are convenient implements. Even in the takings context, as Professor Jed Rubenfeld has creatively and powerfully argued, when the government is not "using" private property for its own ends, but rather is preventing the private property owner from exporting externalities to other people, a taking that triggers a requirement of just compensation is less likely to be found.

On the other hand, military defense, government spending (on roads and other infrastructure), and a system of criminal and civil justice requiring juries are, broadly speaking, "public goods" in the sense that people benefit from them and have an incentive to be free riders unless they are mandated to contribute. The free riding is itself a big part of the problem Congress is trying to solve when it imposes mandates in these areas. So long as the mandate is "congruent and proportional" (to borrow a phrase from another federalism context) to the free-rider problem that the very existence of the individuals being mandated is creating, then the mandate seems less objectionable. This explains why, for example, the quartering of troops is different from the draft.  Placing a narrow, focused, and selective mandate on a few homeowners to bear the costs of a military that everyone benefits from is not a proportionate response to a free-rider problem in the way that a random and broad-based draft that seeks sacrifice from thousands, if not millions, of people is.

When viewed through this prism, the healthcare mandate would seem to fall on the permissible side of any implicit constitutional line safeguarding against instrumentalization. The ACA's mandate is, in substantial part, a response to the free-rider problem-a problem that itself is exacerbated by other undoubtedly permissible elements of the healthcare reform package. The individuals mandated are-if they are free from the mandate-part of the problem, rather than merely being a convenient part of a solution to problems created by other folks.

In a later column, I will leave slippery slopes behind to take up a related but different aspect of the ACA mandate that seemed to generate anxiety-its ostensible novelty.

April 12, 2012

The “Other” Case This Term Testing Congress’ Enumerated Powers to Pass a Healthcare Law: Coleman v. Court of Appeals of Maryland and FMLA

This entry is cross-posted from

These days, all eyes are (understandably) focused on the recently concluded Supreme Court oral arguments in the challenge to the Affordable Care Act.  Yet the Justices quietly handed down another case in the last few weeks, Coleman v. Court of Appeals of Maryland, in which the central attack on a federal statute was in some respects similar to the attack on Obamacare.  Both cases raise the central question whether Congress lacked enumerated power to pass a particular statute.

In Coleman, a five-member majority of the Court struck down the provision in the Family and Medical Leave Act (FMLA) that subjects state-level government employers to damage liability for failing to provide the required unpaid leave to employees for self-care for a serious medical condition.  To my mind, Coleman is noteworthy not only because the FMLA is an important statute in its own right, but also because Coleman illustrates the softness (and perhaps also the volatility) of the doctrines that govern the scope of federal powers.

What FMLA Requires

Passed by Congress almost 20 years ago, FMLA entitles each employee of a covered employer to take up to 12 weeks per year of unpaid leave for any of three purposes: (1) to deal with the birth or adoption of a child; (2) to tend to the needs of a family member with health problems; and (3) to cope with the employee's own serious health condition, when that condition interferes with the employee's ability to perform the job.  Employers who fail to abide by FMLA's requirements are subject to court-ordered compliance, and also subject to damage liability for past violations.

There is no doubt that Congress has the power, under the Commerce Clause of the Constitution (the very provision at the heart of the Obamacare challenge) to regulate generally how employers treat employees, including the matter of how much leave employees are provided.  So private-sector employers have no basis for challenging the FMLA.  But state-level government entities, including state employers, enjoy protection under the Eleventh Amendment, a constitutional provision that complicates things.

Under the prevailing understanding of the Eleventh Amendment, while state entities are subject to judicial commands to comply with legitimate federal statutes going forward into the future, suits seeking money damages against a state entity for a past violations are barred unless the state has consented to the suit, or unless Congress has validly abrogated-i.e., nullified-the state's sovereign immunity from such a suit.

In Coleman, where an employee of the Maryland court system alleged that his employer had not given him the required time to tend to his own serious medical condition, and sued for damages, the State did not waive its Eleventh Amendment immunity.  Thus, the issue for the Supreme Court became whether Congress, by passing the self-care leave requirements of the FMLA, had validly stripped states of their immunity.

The Test For Congress's Ability to Abrogate States' Eleventh Amendment Immunity

In recent years, the Court has allowed Congress to abrogate the Eleventh Amendment shield for states only under very limited circumstances. First, Congress must be acting pursuant to its powers under Section 5 of the Fourteenth Amendment, which gives Congress "the power to enforce, by appropriate legislation, the provisions of" the rest of the Fourteenth Amendment. (Congressional laws enacted under constitutional provisions other than Section 5, such as the Commerce Clause, cannot strip states of their immunity.)

Second, in order to be a valid Section 5 enactment, the congressional statute must remedy constitutional violations that states have committed, or are likely to commit. A congressional law that requires states to do things that the Constitution itself does not come close to requiring cannot be said to "remedy" violations of the Constitution itself. Such congressional statutes, the Court has held, are not "congruent and proportional" to the constitutional rights that the statutes are supposed to be safeguarding.

This is not to say that a congressional statute may not go any farther than the Constitution itself in the limitations it places on states. Rather, it is to say that any congressional prophylactic must be carefully tailored, so that the congressional "remedy" remains closely tied to the substantive constitutional guarantee itself.

The Previous Supreme Court FMLA Section 5 Ruling

In Nevada Dep't of Human Resources v. Hibbs in 2003, the Court (somewhat unexpectedly) held that the family-leave requirement in FMLA-that is, the requirement that employers give employees leave to care for sick family members-was validly enacted under Section 5 (and thus could be a basis for damage suits against state employers).  The Court reached this result based on its determination that the family-leave provision was a reasonably well-tailored effort by Congress to deal with gender discrimination in the public workplace, in light of the fact that employers, including public employers, had some history of structuring and implementing their family-leave policies in gender-based ways.

The Court came out the other way in Coleman.  Writing for himself and three others, Justice Anthony Kennedy found no pattern of gender discrimination with respect to the self-care leave provision.   In the self-care leave part of the statute, he wrote, Congress was responding to the economic burdens created by illness-related job loss.  Congress was, in other words, concerned with employer discrimination based on illness, not employer discrimination based on sex.  Justice Kennedy noted that, at the very worst, when public employers deny self-care leave, there might be a disparate impact that hurts women more than men (because single parents tend to be women, and the self-care leave provision helps single parents a great deal).  But he quickly added that any such uneven impact, unaccompanied by demonstrable malicious gender-discriminatory intent, is not a constitutional problem that Congress can easily remedy.

Coleman's Significance

Coleman is noteworthy in a number of respects.  First, FMLA is a significant workplace statute, and when its provisions can be violated by some employers without the threat of damage liability, aggregate compliance is likely reduced.

Indeed, putting damage relief to one side, since the self-care leave section is not supported by Congress' power under Section 5 of the Fourteenth Amendment, I  suppose there might be some possible question now about whether this provision of the FMLA can be enforced by courts against public employers even via forward-looking judicial relief.  Although the self-care leave provision is valid under the Commerce Clause as to private employers, it is arguably not a law of "general applicability" (insofar as only larger and education-sector private employers are covered, while all public employers are covered) that can apply to state government under the Commerce Clause and the famous Garcia v. San Antonio Metropolitan Transit Authority case.

Second, although we may tend to forget this point in modern times, when the Court strikes down any provision of any Act of the duly elected Congress, that should be a momentous event in our constitutional democracy.

Third, Coleman highlights the pivotal role that Justice Kennedy plays in the federalism realm (as he does in most other important constitutional realms).  Although Kennedy wrote in Coleman for four, rather than five, Justices, Justice Scalia's separate opinion was penned primarily to underscore his view that Congress should be limited under Section 5 of the Fourteenth Amendment even more tightly than current doctrine permits. More specifically, Scalia opined that in most settings even "congruent and proportional" remedies are impermissible if they extend beyond the precise constitutional violations themselves.

So Justice Kennedy's opinion represents the views that control the Court's outcomes in this area.  And the fact that Kennedy was selected to write that opinion suggests that he is viewed by his colleagues as the fulcrum, the Justice whose vote will dictate results.  That is one reason why, in the Obamacare challenge, everyone expects he will be in the majority-that his views will correspond to the law of the land, so to speak.  (That is also why his aggressive questioning of the U.S. Solicitor General defending Obamacare last week was unsettling to observers who expect the Court to uphold the Affordable Care Act.)

Fourth, Coleman highlights the manipulability (or perhaps even the volatility) of the "congruence and proportionality" test.  The Court has used this test in a number of cases in ways that seem inconsistent.  I myself have written about how the analysis and methodology used by the Court in Hibbs is in profound tension with, and more generous than, earlier cases in which the Court had struck down laws as being beyond Section 5 power.

Although Coleman perhaps can be reconciled with Hibbs, the distinctions between the two cases are pretty fine.  As Justice Ginsburg pointed out in her Coleman dissent, Congress did have some anecdotal evidence in FMLA hearings conducted between 1986 and 1993 that some women were fired for needing self-care leave after becoming pregnant or giving birth.  Although the evidence of gender motivation with respect to the implementation of self-care leave policies might not be overwhelming, neither was the evidence that public employers were biased in their family-leave policies voluminous in Hibbs, and yet it sufficed there.

And you don't need to compare other cases to Coleman to see the beating that the "congruence and proportionality" test took there.  Just within the writings in Coleman itself, Justice Scalia (as noted above) wants to replace that test with something tougher, and Justice Ginsburg wants to replace that test with something more deferential to Congress.  Justice Scalia was so sarcastic about the test's "flabb[iness]" that he said he thought Justice Kennedy's opinion and Justice Ginsburg's diametrically opposed opinion were both "faithful application[s]" of the test.  Whether the "congruence and proportionality" yardstick-which remains the law governing Section 5 for now-remains intact in the intermediate term remains to be seen.

Finally, Coleman is interesting because of another unsuccessful argument that was made on behalf of the self-care leave provision:  FMLA supporters argued that the self-care leave provision was within Congress' powers because it operated to make more meaningful the family-leave provision that had already been upheld in Hibbs.  The idea seemed to be that the inclusion of the self-care leave requirement in FMLA balances the overall amount of leave that will be taken by men and women, and thus reduces possible hiring discrimination against women that might ensue if only the family-leave provision-a provision of which women make more use than do men-were in place.

Justice Kennedy found this argument to be unsupported by any empirical evidence.  And the issue of the linkage between different parts of a comprehensive statute might also loom large in the Obamacare case, where the government argues (among other things) that the individual mandate provision is within Congress' powers because it operates to make more meaningful other provisions, including the ban on insurance company discrimination against persons with pre-existing conditions.  Of course, the government has much more evidence (as well as commonsense intuition) to empirically link the two Obamacare provisions than was present in Coleman to link the two FMLA provisions.  Moreover, the rigorous "congruence and proportionality" test concerning Section 5 of the Fourteenth Amendment would seem to require more of Congress than would the more giving standard that governs Congress' powers under Article I.  But, in the end, in the Affordable Care Act as in Coleman, Justice Kennedy's sense of nexus and fit will probably drive the outcome.