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June 11, 2018

President Twitter and the First Amendment

by Elizabeth Joh

Can Trump block people on Twitter? It turns out, the First Amendment has something to say about that. Episode 23, "President Twitter and the First Amendment" of What Trump Can Teach Us About Con Law podcast is now available.

More about What Trump Can Teach Us About Con Law: Professor Elizabeth Joh teaches Intro to Constitutional Law and most of the time this is a pretty straightforward job. But with Trump in office, everything has changed. Five minutes before class Professor Joh checks Twitter to find out what the 45th President has said and how it jibes with 200 years of the judicial branch interpreting and ruling on the Constitution. Hosted by acclaimed podcaster Roman Mars (99% Invisible, co-founder Radiotopia), this show is a fun and casual Con Law 101 class that uses the tumultuous and erratic activities of the executive branch under Trump to teach us all about the US Constitution. Proud member of Radiotopia from PRX.

January 27, 2018

The Constitutional Issues Driving the Events in the Hit Movie, The Post

By Vikram David Amar and Alan E. Brownstein

 

[Cross-posted from Verdict Justia]

 

The blockbuster movie The Post tells a very important real-life story about the efforts of the journalists and leaders of the Washington Post (including Katherine Graham, the first female head of a major American newspaper) and the New York Times to publish parts of a collection of classified documents (the “Pentagon Papers”) detailing non-public information about America’s controversial involvement in the Vietnam War. Although some historians might criticize the movie’s exaggeration of the role of the Post vis-à-vis the Times in getting the documents published, the movie has many strengths: a great story, a taut script, and very fine acting. But one weakness is its failure to explain the legal backdrop against which the battles over publication of the Pentagon Papers were waged. We think this is a shame, since movies and TV shows about important historical episodes like this one represent ideal opportunities to painlessly educate a wide swath of Americans on important—albeit somewhat technical—aspects of the First Amendment and other provisions in the Constitution. For this reason, in the space below we introduce and analyze the two main legal doctrines that lie behind much of the action in this worthwhile cinematic drama.

 

Spoiler alert: We begin with a brief summary of the movie’s storyline. But the movie and the events it depicts are drawn from recent American history with which we hope many Verdict readers would already be familiar; in any case, the real value of the film lies in its character development and detailed storytelling, not in any surprise plot twists or endings.

 

In The Post, Katharine Graham (played by Meryl Streep), the publisher of the Washington Post, and Ben Bradlee (played by Tom Hanks), the editor-in-chief of the newspaper, confront an extraordinary situation. During the Vietnam War, while Richard Nixon was president, Daniel Ellsberg provided photocopies of thousands of classified documents to the New York Times. These documents, eventually known as the Pentagon Papers, chronicled the United States’ involvement with Vietnam for decades. The documents revealed numerous misrepresentations by the government to the American people about the causes of the war, the success of military operations, and the likelihood that the war could be won. The Times published the content of some of these documents, but stopped doing so when the United States government, asserting alleged violations of the Espionage Act and inherent executive authority to protect the national security of the country, went to federal court and obtained an injunction prohibiting further publication.

 

Shortly thereafter, Washington Post reporters obtained copies of the Pentagon Papers. At this point, Graham and Bradlee had to decide themselves whether to continue publication of the documents. The arguments against doing so were formidable. The Washington Post corporation was about to issue a public stock offering, and potential violations of federal law would jeopardize its access to capital it desperately needed. There was also the danger that publication would risk harm to national security and undermine American military operations in Asia. Finally, the Post’s lawyers explained that the Post may in fact be covered by the terms of the injunction that had been issued against the Times, and that if the Post was covered by the order, Graham and Bradlee themselves would risk being held in contempt of court and sent to jail if they authorized the Post to print enjoined material.

 

The argument on the other side consisted, of course, of the responsibility of the press to inform the public of government abuses of power so that political leaders can be held accountable for their conduct. But would the First Amendment protect American newspapers in a situation like this one where national security concerns were at stake? Graham agonized over the issue, but ultimately decided to publish the Pentagon Papers. From that point on, the movie raced to an expedited hearing before the United States Supreme Court on these matters, followed shortly by the dramatic announcement in 1971 that the Court decided, 6–3, to rule in favor of the Times and the Post.

 

The Post is a fine movie. But viewers are left unclear about exactly what legal issues the Court resolved in this dispute. Did the justices hold that newspapers can never be prohibited from, or punished for, publishing classified information? If so, why not? Further, what happens if a newspaper violates an injunction prohibiting the publication of a news story and that injunction is ultimately held to be unconstitutional? Would such a finding of unconstitutionality insulate a newspaper’s publisher and editor from being found in contempt of court and punished for their actions? With this background in mind, we are now in position to explain the key legal doctrines/principles that underlie much of the movie’s action.

 

The Rule Against Judicial Prior Restraint

The key issues—whether the Times and Post had the right to publish the classified materials and whether the Supreme Court should affirm an injunction blocking publication of these materials—turn in large part on something known as the rule against prior restraint. This rule, going back hundreds of years, tells courts to be very wary of government attempts to prevent the utterance or publication of speech by prior censorship of speakers. That is ultimately the basis on which the Supreme Court, by a 6-3 vote, rejected the government’s request to block further publication of the Pentagon Papers.


Before the Pentagon Papers case, the most famous prior restraint ruling by the Court was probably Near v. Minnesota, a 1931 case in which the Court held it was unconstitutional for a state law to authorize and a state court to enjoin the publication of “a malicious, scandalous and defamatory newspaper, magazine or other publication” determined to be a nuisance. As the majority opinion in Near made clear, a primary purpose of freedom of the press was to protect publishers against government licensors authorized to review and censor expressive materials before publication. Such prior restraints were particularly pernicious if they were employed by government to prevent the publication of commentary critical of official conduct.

 

To the majority, the judicial injunction issued against a scandalous and defamatory newspaper in the Near case constituted a prior restraint against speech. While such injunctions were not absolutely prohibited by the First Amendment, the Court held that they should be reserved for only the most exceptional of cases. The defamatory content of future articles could very well expose the publisher to punishment for libel after the fact, but that likelihood, standing alone, could not constitutionally justify judicial censorship preventing continued publication of a newspaper containing such content.


Near was a 5–4 decision. The four dissenting justices pointed out that the defendant’s periodical had been determined to be scandalous and defamatory by the court that issued the injunction and was only restricted to the extent the court concluded that future publications were similarly unlawful. The dissenters believed that court orders of this kind (as distinguished from executive branch actions of censorship), should not be considered unconstitutional prior restraints of speech. Unlike Near, in New York Times Co. v. United States—the 6–3 Supreme Court decision hailed in The Post—the Court focused on injunctions against particular articles, the content of which was known to the courts when the injunctions were issued. Here the Court echoed and solidified Near by saying that a judicial injunction against specific speech “carries a heavy burden of showing justification for the enforcement of such a restraint,” a burden not met in the case before it.

 

The rule against judicial prior restraints is to some extent curious. A near-absolute (no pun intended) presumption against judicial orders restricting particular words or publications that are about to be expressed certainly makes sense when the speech at issue is fully protected by the First Amendment, and any after-the-fact attempts to punish its utterance/publication by civil damages or criminal fines or imprisonment would also be prohibited. The idea that speech is fully protected but could nonetheless be blocked by a court would make little sense.

 

But the rule against prior restraints is also employed in settings where the courts assume, or have determined by careful examination, that the proposed speech in question is not protected by the First Amendment, and could lawfully be punished after its utterance. Why do we nonetheless insist that such speech cannot be blocked by judicial order before the fact? Wouldn’t it make sense for us to block speech that is unprotected and will likely cause harm to individuals after it is uttered or published? After all, damages rarely put Humpty Dumpty back together again, especially when reputations and other dignitary interests are at stake, as they often are with regard to unprotected speech.

 

What explains this seeming oddity? One possibility is that after-the-fact damage actions and criminal sanctions must go through a process and involve juries in a way that makes us feel more comfortable than we feel when judges enforce their own judicial orders without jury involvement, which had been the historical practice of enforcing court orders. (More on the power of judges to enforce their own edicts below.) Another possibility is that speech often seems scarier before it is uttered than after, and if we allow judges to block speech based on reasonable fears of the harm it might cause, a great deal more speech will be blocked than would be lost if judges allow the speech to happen and let others decide down the road whether the feared harm materialized (or was sufficiently likely to materialize) such that civil or criminal sanctions are appropriate. The Pentagon Papers may itself be an example of this phenomenon; notwithstanding the grave predictions of harm the government made when it tried to get an injunction against publication, after the materials were more fully published, the government did not make serious efforts to punish the newspapers for any harm they caused.

 

The So-Called Collateral Bar Rule


The stakes for whether an injunction got issued and upheld in The Post were very high indeed. One reason is what we just mentioned: the idea that before-the-fact restrictions on speech are more likely to be adopted than after-the-fact punishments of speech are to occur, because the speech that is uttered often turns out to be relatively harmless after it is expressed. So some speech that might seem so dangerous that judges would want to block it would turn out after-the-fact not to support any punitive civil or criminal sanctions. But to fully understand why the issuance of an injunction is particularly problematic for a would-be speaker, one must understand another legal doctrine—which is not limited to free speech cases but finds special application there—known as the collateral bar doctrine.

 

Under this doctrine, if a person violates a judicial injunction, whether that injunction looks unwise after the fact—and even if a higher court determines that the injunction was improper and illegal from the outset—the person violating it can be punished, even criminally, for contempt of court, so long as the court that issued the injunction had jurisdiction to hear the case. Perhaps the most famous dispute applying the collateral bar rule is Walker v. Birmingham, a 1967 ruling involving efforts by civil rights protestors in Birmingham, Alabama, to hold parades, rallies, and other expressive events. Upon learning of the planned events, Birmingham officials got a state court to issue an injunction against the protests, on the ground that the protestors had not obtained the required permits. Believing that the permitting scheme—and the judicial injunction that essentially incorporated it—was vague, overbroad and in other respects in violation of the First Amendment, the protestors went ahead with their events. The demonstrators were held in contempt and punished by the state court that had issued the injunction. The Alabama Supreme Court affirmed the punishment, and the US Supreme Court, in a 5–4 decision, also affirmed.

 

According to the Court, even though “the breadth and vagueness of the injunction itself” raised substantial concerns about its constitutional validity, the proper course of action for the protestors was to comply with the questionable injunction and appeal it (perhaps on an expedited basis) up the appellate judicial ladder. According to the majority, “respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”

 

Notice that the collateral bar rule, as it was described in Walker, treats jurisdictional mistakes by courts as being more serious than federal constitutional mistakes: if a court lacks jurisdiction, you may be able to flout its orders, but if a court has jurisdiction and violates your federal constitutional rights, you must obey the order. It is hard to know why jurisdictional limits are more important than constitutional ones.


Notice also that Walker treats unconstitutional actions by judges more respectfully than unconstitutional actions by the legislative or executive branches. As the dissenters in Walker powerfully pointed out, if Congress passes a law, or the president issues an executive order, and you think the statute/order is unconstitutional, you can (assuming you can show a ripe case) go to court to get the statute/order struck down. But you can also, if you want to, simply flout the statute/order, and then assert its unconstitutionality when you are prosecuted for violating it. To be sure, you are running a risk; if you are wrong (or a court disagrees with you) about the statute/order’s unconstitutionality, you can be punished. But if you are right in your understanding of the Constitution (and the courts agree), you will be excused for violating the unconstitutional edict of Congress or the president.

 

But under the collateral bar rule, if you violate an injunction that you (rightly) think violates the First Amendment (or some other aspect of the Constitution), even if the Supreme Court agrees with you that the trial court violated the Constitution in issuing the injunction, you can still be punished for violating the court order that turns out to be illegal. Thus, the only safe way to challenge an arguably unconstitutional injunction is to appeal it—at best seeking expedited review.

 

Why do we force people to appeal judicial injunctions but not file suit and appeal disputes over statutes and executive orders? Why is the “civilizing hand of the law” more present when courts issue their rulings based on their views of the law than when other actors express their vision of what the Constitution permits?

 

Perhaps courts think that other branches no longer consider constitutional permissibility when they act; they refer all such questions to the courts. Maybe that’s true, but if so it is true in part because of doctrines like the collateral bar rule. Relatedly, perhaps courts believe that they are less likely to misinterpret the Constitution less than are Congress and the president; this is an empirical question that would benefit from data on how often trial courts are overturned on constitutional grounds, and how often statutes and executive orders are ultimately invalidated by courts. Or perhaps judges simply want people to respect their handiwork in particular; there are many doctrines (absolute judicial immunity, the failure of the Supreme Court to be legally bound by recusal statutes, etc.) that might be understood to reflect an attitude of judicial privilege or perhaps even judicial arrogance.

 

Regardless of its soundness, the collateral bar rule makes the issuance vel non of the speech-restrictive injunction in cases like the Pentagon Papers dispute hugely important. And this backdrop legal rule, along with the rule against prior restraints, was animating a good bit of the motives, moves, and countermoves that were documented—albeit without much legal explanation—in the worthwhile drama, The Post, recounting a crucially important episode in American history.


January 24, 2018

What Trump Can Teach Us About Con Law: Defamation

By Professor Elizabeth Joh

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

President Trump likes to threaten the press with libel lawsuits. What does the Constitution have to say about defamation and the press? Find out more in "Defamation," the latest installment of "What Trump Can Teach Us about Con Law," a podcast featuring Professor Elizabeth Joh with Roman Mars, host and creator of "99% Invisible." The podcast aims to "take the extreme actions of the President of the United States and channel that chaos into learning our Constitution like we never have before."

 

October 16, 2017

Opinion Analysis: California Cannabis Coalition v. City of Upland

By David A. Carrillo & Darien Shanske

[Cross-posted from SCOCAblog]

This is a preview of a forthcoming article, California Constitutional Law: Interpreting Restrictions on the Initiative Power (2017) 51 U.C. Davis L. Rev. Online 65, David A. Carrillo and Darien Shanske. Reprinted by permission.

Overview

On August 28, 2017 the California Supreme Court decided California Cannabis Coal. v. City of Upland, (Aug. 28, 2017, S234148) ___Cal.4th___ . Justice Cuéllar wrote the opinion, joined by the Chief Justice and Justices Werdegar, Chin, and Corrigan. Justice Kruger wrote separately to concur in part and dissent in part; Justice Liu joined that opinion.

The basic facts of the case are these.[1] A local initiative in the city of Upland proposed to require marijuana dispensaries pay a city fee. The proponents wanted the initiative to be considered by voters at a special election. The city concluded that because the fee would exceed the actual costs, it constituted a general tax. To the city, this meant that the initiative could not be voted on during a special election; instead, under California constitution Article XIII C, section 2 the measure had to be submitted to the voters at the next general election. This provision of the constitution clearly requires that all (general) tax increases imposed by a local government be submitted to the voters at a general election.[2] So if a city council (like Upland’s) proposes a tax increase, then it must follow the Proposition 218 rule and wait for the next general election. The question posed by this case was whether this rule also applies to general tax measures put on the ballot by the voters. The court decided that this provision does not restrain voter initiatives. Therefore, if the voters propose the increase of a general tax, then a vote on the tax can occur at a special election.

Analysis

Debating the definition of “government” is unproductive.

The key question confronting the court was whether the phrase “no local government may impose . . .” also served to impose a limit on the voters of a local government acting through the initiative process. The majority thought that this phrase did not include the electorate; the dissent thought that it did. Though both sides made reasonable points, we think that the arguments based on the language of the provision are so evenly balanced that the heavy lifting is done by the majority’s presumption in favor of liberally construing the initiative power. The majority candidly says as much.[3] Indeed, the majority explains that when it comes to limiting the electorate’s initiative power, it will apply a “clear statement rule.” That is, unless the voters clearly intend to limit the initiative power, the court will not find that they did.

There is a strong case for this clear statement rule.

The dissent cogently asks what the majority’s basis is for applying a clear statement rule and making it a rule for future cases.[4] After all, a judicially crafted clear statement rule hamstrings a legislative body and hands power to judges to decide what is “clear enough.” A clear statement rule is particularly troublesome to the extent the drafters of legislation did not know their work would be evaluated on that standard.

The majority’s response is that a presumption in favor of the initiative power is not new. In 1991 the court applied that principle in a case involving Article XIII A, section 3 (added by Proposition 13), which at the time provided that “any changes in State taxes enacted for the purpose of increasing revenues . . . must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature . . . .”[5] The court applied the presumption and found it did not apply to the electorate.

Only five years later, Proposition 218 aimed to clarify the interpretation of another section in the same article: Article XIII A, section 4 (added by Proposition 13), which reads: “Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transaction tax or sales tax on the sale of real property within such City, County or special district.” It should be unsurprising that the court again applied the presumption in favor of the initiative in interpreting Proposition 218’s clarification of Article XIII A, section 4. In this context it is especially apt to charge the proponents[6] with knowledge of the law,[7] including knowledge of this presumption.

But this argument only goes so far if a presumption in favor of the initiative power is misguided. Consider the U.S. Supreme Court’s widely-criticized federal preemption clear statement rule. That rule is a restriction on federal power, imposed on federalism grounds. If Congress does not clearly preempt a state law, then the state law stands. Yet there is a good argument that after the Fourteenth Amendment’s adoption there is no good ground for tipping the scale in favor of state versus federal power. Another criticism is that federalism values, appealing as they are, should not receive special judicial solace at the cost of protecting individual rights, as often ends up being the case.[8] The fact that the federal clear statement rule is long established and fairly applied is no response to such points.

We considered whether a deeper justification exists for a presumption in favor of broadly construing the initiative power as a matter of California constitutional law. We think there is such an argument, as follows.

An initiative constitutional amendment that purported to prevent future electorates from undoing a past act, or otherwise placed substantive limits on the future electorate’s legislative power, would be invalid as a revision. The California electorate’s initiative power is a structural part of the state’s constitutional system. California’s constitution can be changed, of course, but structural changes are labeled “revisions” and revisions cannot be accomplished by means of the ordinary voter initiative. A revision requires a supermajority of the legislature and a majority vote of the electorate.[9] Consider also the fact that the initiative was created via the revision process. How the initiative power got into the constitution is not determinative, but it is suggestive.[10] If altering the state government to add the initiative was a revision, and if the litmus test for a revision is whether it changes the nature of the state government, then reducing or removing the initiative power is also a revision. As an extreme example, if the electorate by initiative constitutional amendment attempted to assume all taxing power, or claimed to renounce any taxing power, either act would be an invalid revision.

Thus, if Proposition 218 significantly impairs the electorate’s right of initiative, then it should be invalid to that extent because the initiative can only be substantively curtailed by a revision. The court has justified this rule on the principle that, although the state constitution is binding on future legislatures and electorates alike, the electorate cannot restrict its own future initiative power through the initiative process.[11] Only the legislature plus the electorate could do that with a revision.[12]

An initiative constitutional amendment that purports to prevent future electorates from undoing a past act, or otherwise placed substantive limits on the future electorate’s legislative power, would also be invalid as a separation of powers violation. Using the example above again, if the electorate by initiative constitutional amendment attempted to assume all taxing power, or claimed to forfeit any taxing power, either act would violate the separation of powers because the initiative is a core electorate legislative power, which cannot be substantively limited or reassigned.[13] The electorate cannot self-harm, just as the legislature cannot over-delegate, reduce, or give away its core powers.[14]

How does one know if a change is structural enough to become a revision, or a material enough impairment? Key questions include: Does it change the frame of government?[15] Does it substantively reduce the electorate’s legislative power?[16] Obviously the electorate (by initiative constitutional amendment) can prescribe substantive and procedural limits on the other branches of California government.[17] But the present electorate cannot by initiative constitutional amendment reduce the amount of legislative power held by the future electorate. This does not mean that the initiative cannot be used to constrain future initiative acts at all. Proposition 13 itself is an example of setting limits on future electorates, and absent any other action the future electorate is indeed constrained by the past electorate’s action. Yet the future state electorate can always use its initiative power to undo the past electorate’s act and change the rules.

Remember that the provision in question here is a restriction placed on the local initiative power by the state electorate. The dissent argued that this fact indicates that Kennedy Wholesale was not really about protecting the initiative power because the state voters could always change the provision.[18] Leaving to one side whether this is the best reading of Kennedy Wholesale (and the majority has a potent counter), we think that this point makes the argument for applying the clear statement rule stronger in this case. As to the state electorate, their initiative power would arguably not have been overly restricted by a two-thirds rule because a majority of the electorate could change the rule. But that is not the case for the local electorate and the local initiative power. The local initiative power is also constitutionally derived.[19] Based on the argument above, it is not at all clear to us if the state electorate could constrain the use of local initiative power absent a constitutional revision. It is at least a very difficult constitutional question. Consequently, it is certainly sensible to apply a clear statement rule to avoid that question. In this context, the clear statement rule functions more like a canon of constitutional avoidance.

We should be clear that the majority opinion did not rely on the argument we just outlined in its defense of the clear statement rule, although we believe that it did gesture to it at various points in its opinion, most particularly when the court explained that: “As Ulysses once tied himself to the mast so he could resist the Sirens’ tempting song (Homer, The Odyssey, Book XII), voters too can conceivably make the clear and important choice to bind themselves by making it more difficult to enact initiatives in the future.[20] We added the italics to the “conceivably,” and we think this comment shows that the court sees that self-binding in this way poses a hard question.

The Elephant in the Room

This case is about California constitution Article XIII C, section 2(b). The celebrity of the case has to do with section 2(d), which reads: “No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. A special tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved.”

The language concerning the election rules construed in this decision (“No local government may impose, extend, or increase any general tax unless . . .”) is identical to the language concerning the required supermajority for special tax measures (“No local government may impose, extend, or increase any special tax unless…”). This strongly suggests that the local voters can, by initiative, increase special taxes by a simple majority because the supermajority limitation does not apply to initiatives any more than the general election requirement applies to initiatives.

The majority does not comment on this implication, which is appropriate, as that issue was not before the court. Perhaps some grounds for distinction between the two provisions might be found. Indeed, there is language in the majority opinion that suggests it thinks there might be such a distinction. The court says:

That the voters explicitly imposed a procedural two-thirds vote requirement on themselves in article XIII C, section 2, subdivision (d) is evidence that they did not implicitly impose a procedural timing requirement in subdivision (b).[21]

This language can be read to suggest that there is some difference between the election timing provision and the vote threshold provision. We do not actually think that this is what this passage means. Instead, it is part of an argument in favor of the majority’s interpretation of section 2(b) and the (minor) point the majority is making is that the electorate knows how to refer to itself.[22]

Nevertheless, the implication remains and was brought up by the dissent in a footnote:

The majority opinion contains language that could be read to suggest that article XIII C, section 2(d) should be interpreted differently from section 2(b). (See maj. opn., ante, ––– Cal.Rptr.3d at ––––, ––– P.3d at –––– [noting that the enactors of Prop. 218 “explicitly imposed a procedural . . . requirement on themselves in” art. XIII C, § 2(d), which “is evidence that they did not implicitly” do so in § 2(b) ].) I see no basis for construing the two provisions differently. Sections 2(b) and 2(d) are, in all pertinent respects, indistinguishable.[23]

If we are correct that the majority did not wish to introduce a difficult-to-understand distinction in this offhand way, then why did the majority not change the language or in some other way respond to the dissent? Perhaps the majority thought its implication was clear enough and that there had to be some end to the back and forth. Perhaps the majority was not displeased with the implication the tax threshold question was arguably open for the lower courts to consider.

Implications

The public response to this decision—both pro and con—suggests that it changes the possibilities of local government finance significantly.[24] Again, the focus has been on the decision’s supposed impact on the voting threshold for special taxes. We are skeptical that the impact would be so great even if this decision does ultimately result in the supermajority rule not applying to special taxes placed on the ballot by the voters themselves.

As a matter of political economy, we do not think there is a reservoir of pent up demand for tax measures. As noted in the post previewing this case, cities and counties can already subject general taxes to a majority vote[25]—along with a non-binding advisory measure on how any revenue collected is to be spent.[26] Thus, it is not clear how important this change will be for cities and counties. School districts, for example, have already been able to fund infrastructure with a 55% voter threshold, assuming certain conditions are met.[27] So we would predict that operational school district taxes passed by majority vote will be the main source of demand for this kind of voter initiative, if it were to be possible.

Even assuming that the court’s reasoning means that the two-thirds threshold does not apply to local special tax initiatives, how this area of the law develops from here is unclear. The initiative power extends to taxation,[28] but it is also the case that the initiative power is generally interpreted to be as broad as the legislative power of the underlying local government.[29] Charter cities have the inherent power to tax and therefore, presumably, their citizens have that right as well.[30] But general law cities and counties do not have the inherent power to tax.[31] Does that mean the legislature must explicitly permit local tax initiatives in these governments?[32] School districts have no initiative power at all—at least not granted by the constitution.[33] Thus, if school districts wanted to use this ruling, must the legislature grant the school district electorates the power to impose taxes by initiative? These are hard questions.[34] We note them here not to answer them, but to indicate that many thorny legal and political questions remain whatever this decision’s applicability to the tax threshold provision.

Conclusion

The majority describes the conflict in this case as between two constitutional provisions: sections 8 and 11 of article II (the initiative power), and article XIII C (limiting local governments’ ability to impose, extend, or increase general taxes). Because the latter provision was created by the former, we think that the court found that this is not a clash of two equally-matched California constitutional doctrines. Thus, in keeping with its past practice and sound doctrinal considerations, the electorate’s initiative power prevailed.

[1] For further description of the case see: http://scocablog.com/argument-preview-california-cannabis-coalition-et-al-v-city-of-upland/.

[2] Cal. Const., art. XIIIC § 2:

(b) No local government may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote. A general tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved. The election required by this subdivision shall be consolidated with a regularly scheduled general election for members of the governing body of the local government, except in cases of emergency declared by a unanimous vote of the governing body.

(c) Any general tax imposed, extended, or increased, without voter approval, by any local government on or after January 1, 1995, and prior to the effective date of this article, shall continue to be imposed only if approved by a majority vote of the voters voting in an election on the issue of the imposition, which election shall be held within two years of the effective date of this article and in compliance with subdivision (b).

(d) No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. A special tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved.

[3] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *12: “Our analysis in those decisions consistently begins with the presumption that the initiative power is not constrained, then searches for clear evidence suggesting that electors could reasonably be understood to have imposed restrictions upon their constitutional power.”

[4] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *18.

[5] Kennedy Wholesale, Inc. v. State Bd. of Equalization, (1991) 806 P.2d 1360.

[6] The Howard Jarvis Taxpayer’s Association sponsored both Propositions 13 and 218. https://www.hjta.org/about-hjta/the-history-of-hjta/.

[7] See, e.g., In re Harris, (Cal. 1989) 775 P.2d 1057, 1060 (“[T]he voters who enact [an initiative] may be deemed to be aware of the judicial construction of the law that served as its source.”).

[8] See, e.g., Eskridge & Frickey, Quasi-Constitutional Law: Clear Statement Rules As

Constitutional Lawmaking, (1992) 45 Vand. L. Rev. 593, 643-44.

[9] Or a constitutional convention. Cal. Const. art. XVIII, § 2.

[10] See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, (Cal. 1978) 583 P.2d 1281, 1285 (“We think it significant that prior to 1962 a constitutional revision could be accomplished Only by the elaborate procedure of the convening of, and action by, a constitutional convention (art. XVIII, s 2). This fact suggests that the term ‘revision’ in section XVIII originally was intended to refer to a substantial alteration of the entire Constitution, rather than to a less extensive change in one or more of its provisions.”).

[11] Rossi v. Brown, (Cal. 1995) 889 P.2d 557, 574. (“[T]hrough exercise of the initiative power the people may bind future legislative bodies other than the people themselves”). See also Cty. of Los Angeles v. State, (Cal. 1987) 729 P.2d 202, 209 n.9 (“Whether a constitutional provision which requires a supermajority vote to enact substantive legislation, as opposed to funding the program, may be validly enacted as a Constitutional amendment rather than through revision of the Constitution is an open question.”).

[12] Cal. Const., art. XVIII, § 1, 4; 68 Hastings L. J. 731, 744.

[13] Amador Valley Joint Union High Sch. Dist., (Cal. 1978) 583 P.2d 1281, 1286 (posing as a hypothetical example of an invalid revision an initiative constitutional amendment vesting all judicial power in legislature). For an explanation of the idea that a separation of powers analysis applies to electorate legislative acts, See Carrillo, Duvernay, & Stracener, California Constitutional Law: Popular Sovereignty (2017) 68 Hastings L. J. 731.

[14] For background on the unique features of the California separation of powers doctrine, See Carrillo & Chou, California Constitutional Law: Separation of Powers (2011) 45 USF.L.Rev. 655.

[15] Professional Engineers in California Government v. Kempton, (Cal. 2007) 155 P.3d 226, 245; Amador Valley Joint Union High Sch. Dist., 583 P.2d at 1286 (does the measure “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision”).

[16] 68 Hastings L. J. 731, 745–46.

[17] Rossi, 889 P.2d at 574; 68 Hastings L. J. 731, 744 and 753.

[18] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *19.

[19] Cal. Const, art. II, § 11(a): “Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide. Except as provided in subdivisions (b) and (c), this section does not affect a city having a charter.”

[20] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *1.

[21] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *10.

[22] The opening sentence of the paragraph says as much: “Indeed, as we observed in Kennedy Wholesale, 53 Cal.3d at page 252, 279 Cal.Rptr. 325, 806 P.2d 1360, when an initiative’s intended purpose includes imposing requirements on voters, evidence of such a purpose is clear.”

[23] California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *18 n.7.

[24] See, e.g., https://calmatters.org/articles/california-taxes-two-step/ (“The ruling ‘isn’t just a small crack in the protections that voters across the state have relied on—it is a sledgehammer,’ said [Assembly Member] Baker at a press conference.”). And, in fact, Republican members of the Assembly have introduced a constitutional amendment (ACA 19) to overturn the holding of this case. http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180ACA19.

[25] Cal. Const. art. XIIIA, § 2(b).

[26] Coleman v. County of Santa Clara, (1998) 64 Cal.App.4th 662.

[27] Cal. Const. art. XIIIA, § 1(b)(3).

[28] Rossi, 889 P.2d at 563.

[29] DeVita v. Cty. of Napa, (1995) 9 Cal.4th 763, 775.

[30] California Fed. Savings & Loan Assn. v. Los Angeles, (1991) 54 Cal.3d 1.

[31] Santa Clara County Local Transportation Authority v. Guardino, (1995) 11 Cal.4th 220, 247-48.

[32] Before one assumes the answer is yes, it must be remembered that, as the majority in this case explained, “we have held that the people’s power to propose and adopt initiatives is at least as broad as the legislative power wielded by the Legislature and local governments.” California Cannabis Coal. v. City of Upland, 2017 WL 3706533 at *4 (citing cases). If the initiative power is broader, then perhaps explicit permission to place a tax measure on the ballot by initiative is not necessary.

[33] But, again, perhaps the power of initiative is so broad that this power could be found to have been reserved by the people it being explicitly granted to the electorate of a school district.

[34] Another twist. Proposition 62, approved by the voters in 1986, placed limits on local government taxing power very similar to that of Proposition 218 into California statutory law. See, e.g., Cal. Gov’t Code § 53722 (“No local government or district may impose any special tax unless and until such special tax is submitted to the electorate of the local government, or district and approved by a two-thirds vote of the voters voting in an election on the issue.”). The Legislature cannot simply repeal a statute passed by initiative. See Cal Const. art. II, § 10(c); Cal. Gov’t Code § 53729. Presumably Proposition 62 does not bar local tax initiatives any more than Proposition 218 does, but this is another issue that will need to be litigated.

September 1, 2017

With pardon, Trump shows no commitment to U.S. civil rights laws

[Cross-posted from the Davis Enterprise]

By Kevin R. Johnson

Over the weekend, a bipartisan group of political leaders - including Arizona Sens. Jeff Flake and John McCain, as well as House Speaker Paul Ryan, R-Wis. - condemned President Trump's pardon late last week of Maricopa County (Arizona) Sheriff Joe Arpaio.

For more than two decades, the controversial sheriff struck fear into the hearts of immigrants and U.S. citizens of Mexican ancestry in Arizona. A respected federal court judge appointed by President George W. Bush, Murray Snow, found that Arpaio, and his sheriff's office, aggressively - and lawlessly - used racial profiling to enforce immigration laws.

Defeated for re-election in 2016, the controversial sheriff had made a name for himself in unabashedly claiming that he wanted to aggressively enforce U.S. immigration laws. But publicity stunts showed cruelty and insensitivity toward inmates under his protection.

Arpaio, for example, made inmates wear pink underwear and suffer the heat outdoors in scorching Arizona summers. Undocumented immigrants were forced to live in a segregated "tent city" that Arpaio bragged was a "concentration camp."

The nation has faced similar civil rights issues raised by Arpaio's refusal to follow the rule of law. Southern segregationists in the 1950s and 1960s expressed views not that different from those expressed by contemporary alt-right activists and white supremacists. They, too, had to be schooled on the rule of law.

In one of the most famous examples, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court's decision outlawing segregated schools in Brown v. Board of Education (1954) so that African-American children, known as the Little Rock 9, could attend Little Rock Central High School in Arkansas.

Presidential pardons at times have been controversial. President Ford's pardon of President Nixon for his role in the Watergate cover-up is a leading modern example. However, an American president never has pardoned a person who repeatedly, willfully and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio was pardoned despite a judge's ruling that found him guilty of criminal contempt. A neutral federal judge, Susan Bolton, presided over the trial on criminal contempt and, after hearing testimony from Arpaio himself, found him guilty.

In addition to the civil rights violations, Arpaio undermined the fundamentals of the legal process. For a law enforcement officer to be found liable for criminal contempt is serious business. This explains why Attorney General Jeff Sessions reportedly told Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike are condemning the Arpaio pardon.

Trump has founded his presidency on enforcing the U.S. immigration laws. But his pardon of Arpaio is inconsistent with the rule of law. The president justified the pardon by saying that the sheriff "was just doing his job." However,"his job" as a law enforcement officer does not include breaking the law.

First, Arpaio was found to have engaged in a pattern and practice of racial discrimination in law enforcement against Latinos. Second, Arpaio was punished for intentionally violating court orders. Both offenses are antithetical to the rule of law. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of actions of the Southern segregationists of the 1950s and 1960s.

We are living in a time of deep political division and disturbing challenges to our Constitution. The nation has seen civil unrest unfold as violent clashes, including in California this past weekend, take place between white supremacists and counter-protesters. Trump and his followers have inflamed passions by claiming that immigration laws must be enforced with impunity.

In pardoning Arpaio, however, the president does not appear to be equally committed to enforcement of civil rights laws. He has demonstrated this through his pardon of Arpaio, as well as in his response to the troubling events in Charlottesville.

Trump seems to be siding with those opposed to federal civil rights law - and against the rule of law - by his continued attacks on the independence of the judiciary. That message is not what the nation needs at this time.

 

August 17, 2017

Sorry, Donald Trump Jr. is Not a Traitor

By Professor Carlton F.W. Larson

[Cross-posted from the Washington Post]

We now know that Donald Trump Jr., a high-level adviser to his father's presidential campaign, attempted to obtain opposition research from the Kremlin. To Trump's opponents, this finally proves explicit collusion between Trump's campaign and the Russian government. Still, it was astonishing to see the defeated candidate for the vice presidency of the United States, Tim Kaine, argue that the son of the incumbent president may have committed treason. He was not the only one to make the allegation, which proliferated on social media; journalists bombarded White House spokeswoman Sarah Huckabee Sanders with questions about "treason."

Assume everything that is being alleged against Donald Trump Jr. is true: that is, he knowingly met with a representative of the Russian government for the purpose of obtaining information, probably illegally obtained, that was harmful to the campaign of Hillary Clinton. Is this treason against the United States?

As a technical legal matter, no, and not even close. Article 3 of the United States Constitution limits the crime of treason to two specific offenses: levying war against the United States, and adhering to their enemies, giving them aid and comfort. It was deliberately crafted to exclude a wide variety of political offenses, such as criticizing the government.

None of the Trump Jr. allegations suggest conduct analogous to levying war against the United States, which generally requires some use of force in an attempt to overthrow the government. Nor does it amount to adhering to the enemy; for purposes of the Treason Clause, an enemy is a foreign nation or group with which the United States is in a state of war, either declared or actual. We are not in a state of war with Russia. In the 1950s, Julius and Ethel Rosenberg were executed for espionage, not treason, because the Soviet Union, although an implacable adversary, was not technically an enemy. We were formally at peace with the Soviet Union then, and we are formally at peace with Russia now.

So for purposes of American treason law, the details of Donald Trump Jr.'s relationship with Russia are irrelevant. He could be a paid foreign agent of Russia; he could take an oath of allegiance to Russia; he could even bug his father's White House bedroom on behalf of Russian intelligence. None of those actions would amount to treason in the narrow sense that our Constitution defines it.

Nonetheless, Trump Jr.'s alleged conduct raises serious questions under other provisions of federal law, all of which will be closely evaluated by Robert Mueller's investigative team. A determination that Trump Jr. did not commit treason is a far cry from finding his actions to be legal. It is against the law, for instance, for U.S. political campaigns to accept anything of value from foreigners.

In a broader sense, though, I understand Kaine's invocation of treason. Coordinating with a foreign government to interfere in American elections is fundamentally wrong, deeply un-American, and, as noted, almost certainly illegal under a variety of federal statutes. In many other countries, this conduct would be obviously treason, no questions asked. Although I am not familiar with the details of Russian law, I have no doubt as to how Vladimir Putin would treat a Russian citizen who coordinated with the CIA to interfere with a Russian election.

American law, however, is different. We have chosen to define treason narrowly, and the body of law dealing with treason is arcane and not always easy to understand. As the U.S. Supreme Court put it in 1945, the Treason Clause's "superficial appearance of clarity and simplicity . . . proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract interpretive generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty."

The upshot is a significant gap in our legal vocabulary. We do not have a good term to describe behavior that is not technically treasonous but nonetheless constitutes a betrayal of the United States. I do not have a good solution to fill this gap, but our political and legal discourse would be improved if we had one. In the meantime, even well-trained lawyers such as Kaine will instinctively reach for the label of treason in circumstances similar to those of Donald Trump Jr.

 

July 21, 2017

“What Trump Can Teach Us about Con Law”: Podcast by Professor Elizabeth Joh

Professor Elizabeth Joh is co-hosting a podcast, “What Trump Can Teach Us about Con Law,” that quickly shot to the top of the iTunes charts. Produced by Professor Joh with Roman Mars, host and creator of the independently produced podcast “99% Invisible,” the podcast aims to “take the extreme actions of the President of the United States and channel that chaos into learning our Constitution like we never have before.”

In the introductory episode, Mars said that the show was inspired by one of Professor Joh’s Twitter messages: “Teaching Constitutional Law in 2017 means glancing at twitter every five minutes before class.” 

Joh explains that Constitutional Law is an important course, but one that can be somewhat dry. As of late, the subject has taken on a sense of urgency, as the President’s actions have raised new and challenging constitutional law issues.

Mars proposed creating a podcast based on Joh’s observations, and the result has been “What Trump Can Teach Us about Con Law,” which launched June 7 and quickly rose to the top of the iTunes “Top Podcasts” list. (The podcast was No. 2 on the iTunes charts the following week.)

“I like this idea that maybe we have a president who is kind of stress-testing the Constitution, really giving us a sense of ‘What are the limits of each of the different provisions that he seems to be challenging?’” said Joh.  “That’s really important because it’s forcing us to think about things and wonder, ‘Do we have answers to some of these questions?’”

March 24, 2017

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

By Vikram Amar and Alan Brownstein

Cross-posted from Justia.com:

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

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

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

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

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

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

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

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

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

President Trump's Executive Orders Restricting Immigration

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

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

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

Other Factors at Play

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

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

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

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

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

 

February 17, 2017

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

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

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

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

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

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

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

July 5, 2016

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

By Kevin R. Johnson

[Crosspost from ImmigrationProf Blog]

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

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

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

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

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

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

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

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

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

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

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

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