February 24, 2020

'What Trump Can Teach Us About Con Law,' Episode 38: Prosecutorial Discretion

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

By Elizabeth Joh

Prosecutors recommended that Roger Stone, an associate of Donald Trump, be given a heavy penalty after being convicted of seven felony counts, including lying to authorities. But after intervention from the Justice Department, and tweets from the president, he’s getting three years and four months in jail, much less than what the prosecutors asked for. What can his case tell us about presidential interference and prosecutorial discretion?

January 27, 2020

'What Trump Can Teach Us About Con Law,' Episode 37: War Powers and Impeachment Update

[Cross-posted from Trumpconlaw.com]

By Elizabeth Joh

After Donald Trump ordered the killing of Iranian general Qasem Soleimani, many wondered if the two countries were on the brink of a major conflict. This incident is only the latest in the longstanding fight between Congress and the president over who has the power to make war, and if an act of violence against another state can be legitimate without congressional approval. This episode also includes an update on the Senate impeachment trial of Donald Trump, which began earlier this week.

January 7, 2020

'What Trump Can Teach Us About Con Law,' Episode 36: Bribery

[Cross-posted from Apple Podcasts]

By Elizabeth Joh

Bribery is one of the three offenses listed in the Constitution as grounds for impeachment. Even though allegedly attempting to bribe Ukraine is the act that precipitated Trump’s impeachment, it’s not explicitly listed in the articles of impeachment. Why is that?

November 19, 2019

'What Trump Can Teach Us About Con Law,' episode 35

By Elizabeth Joh

[Cross-posted from Apple Podcasts]

Episode 35 of "What Trump Can Teach Us About Con Law" explores the Confrontation Clause of the Sixth Amendment, and whether it gives President Trump the right to meet the Ukraine whistle blower face to face.

Listen to the podcast

October 22, 2019

What the gun lobby gets wrong about the 2nd Amendment

[Cross-posted from the Los Angeles Times]

By Vikram D. Amar and Alan E. Brownstein

The Supreme Court will hear a gun control case in December that could significantly limit the ability of state and local governments to regulate guns for public safety reasons.

The case involves a New York City regulation on transporting handguns that was repealed in July. Although that original rule is no longer in effect, for now the court has not determined the matter to be moot, so the case will move forward.

In this dispute and others, opposition to gun regulations is often grounded on the premise that once an individual interest is identified as a “fundamental” right, that interest prevails over all countervailing public concerns.

That premise is profoundly mistaken. And, importantly, it is inconsistent with the way that constitutional doctrine has developed with other fundamental rights, such as freedom of speech and freedom of religion. Second Amendment rights should be treated no more favorably, despite the political rhetoric of gun rights supporters who claim that any firearm regulation is an unconstitutional infringement on their rights.

Of course, a constitutional right does carry with it a strong presumption against government interference with that particular activity, even though the exercise of the right involves a societal cost. We protect freedom of religion, for example, even though we know that some religious practices — like pulling children out of school after the eighth grade — might be considered problematic or harmful.

But there is a critical difference between assigning a high value to a constitutional right when balancing it against social concerns, and arguing that the right necessarily overrides the public’s ability to regulate that activity in ways that may be needed to protect the community.

The doctrine surrounding freedom of speech is instructive. No one doubts that speech rights are taken seriously in America. Yet the right to free speech is not absolute and can be regulated in numerous circumstances. Courts subject government regulations that affect speech to different standards of review that balance the public’s interest against the individual’s liberty. Among factors considered are the kind of speech involved and the location and manner of the restriction.

For example, a ban on rallies on public streets in residential neighborhoods after 9 p.m. would likely be upheld even though it burdens speech, so long as the law did not discriminate based on the message rally speakers expressed.

So too with protections for personal privacy under the 4th Amendment, which prohibits unreasonable searches and seizures by the government. That amendment doesn’t bar all searches and seizures, but instead requires that such intrusions be “reasonable,” a concept that inherently involves some kind of balancing of interests. Hence, we all must endure airport security screening searches because they are a reasonable means to protect air travel safety.

The individual right to bear arms for self-defense, as announced by the Supreme Court in 2008, is likewise not unlimited. Even though the court in that case struck down a flat ban on possession of handguns that might be used for self-defense in people’s homes, it observed that states could — for historical and public-policy safety reasons — prohibit people with felony convictions or people with mental illness from possessing guns, demonstrating that the very scope of the 2nd Amendment’s protection takes account of countervailing public objectives. For instance, some states require that gun owners keep their firearms locked up if there are children living in the home, even though gun owners might prefer easier access to firearms for self-defense.

Or consider the contours of self-defense itself. A 2nd Amendment right to keep guns for self-defense does not eliminate the need for society to think about how guns should be responsibly employed, even in self-defense situations. If someone uses a gun purportedly for self-defense purposes and kills another person, the 2nd Amendment does not preclude an evaluation of whether the alleged threat was sufficient to justify the use of deadly force or whether the killing involved excessive force because reasonable non-lethal alternatives were available for the shooter to defend himself.

The national debate now has focused on proposed regulations such as background checks and assault weapons bans. Whether specific measures would be permissible under the Constitution depends on their particulars, but the big point is that particulars matter.

In evaluating gun control regulations, it’s legitimate to take into account the social harms and risks arising from individuals keeping, bearing and using firearms. Constitutional analysis of the 2nd Amendment, as with other fundamental rights, requires some kind of balancing of interests, which includes considering the state’s need to promote public safety.

Vikram D. Amar is dean and professor of law at the University of Illinois College of Law. Alan E. Brownstein is professor emeritus at the UC Davis School of Law.



October 22, 2019

The Supreme Court is poised to blow a giant hole in gun control. Here's how the liberal justices can intervene

[Cross-posted from the Harvard Law Review blog]

By Aaron Tang

Lost in the shuffle of a busy October at the Supreme Court—one filled with high profile developments concerning the right to abortion and the treatment of LGBT workers—was a single, ominous sentence buried away on page eleven of the Court’s first orders list of the Term: “The Respondents’ Suggestion of Mootness is denied.”  Despite its opacity, this single sentence is the clearest signal yet of the impending doom for critical gun control laws currently in force in eight states and Washington, D.C.

To back up a bit, the case in question is New York State Rifle & Pistol Association v. City of New York.  It involves a Second Amendment challenge brought by gun rights activists against specific restrictions that New York City—the respondent in the case—placed on their ability to travel with their firearms. 

The Court granted certiorari in January, which was itself a bad sign for gun control proponents—the City’s restrictions were upheld in the lower courts and no other federal court has reached a conflicting conclusion, leaving the Court little reason to take the case other than to reverse the decision below.  But the Court tipped its hand still further when it denied the City’s request to dismiss the case as moot in light of intervening city and state laws, both of which granted the challengers the exact relief they requested in their complaint.  If any of the conservative Justices were at all interested in avoiding this highly charged dispute, by far the easiest course would have been to accept the City’s Suggestion of Mootness, given that the challengers had already gotten all that they had asked for.  Their refusal to do so is a strong signal that the conservative majority is poised to issue a blockbuster ruling that will expand the right to carry guns outside the home.  Such a ruling would add insult to injury for countless communities that have been ravaged by gun violence, a number that is growing rapidly due to the striking increase in mass shootings across the nation.

But all is not lost.  The liberal Justices in the minority have a last-ditch strategy that would sacrifice the specific gun restriction at issue in this case, yet save a number of far more critical gun control measures around the county.

To see how, it’s important to start by recognizing just how narrowly the challengers framed their lawsuit, at least initially.  The suit challenges a New York City regulation requiring owners of city-conferred “premises licenses” to keep their guns inside their homes at all times, with two exceptions: to go hunting at an authorized area, or to train at one of seven shooting ranges in the city.  Without a premises license—or a far-more-difficult-to-obtain “carry license,” which requires a significant demonstration of an applicant’s individualized need—city residents are not allowed to keep guns in their homes at all.

Three individuals and the New York State Rifle & Pistol Association sued, asking for two additional, yet modest exceptions to the general restriction on travel by premises license holders: the ability to bring guns to shooting ranges and second homes outside the city.  Critically, the plaintiffs did not challenge New York’s carry license regime, which is the more significant law that prohibits most city residents (i.e., those that cannot show particularized good cause) from carrying concealed firearms in public. 

But the challengers now make clear in their brief before the Court that they are no longer interested in just the two modest travel freedoms for premises license holders.  Instead, the challengers want the Court to issue a sweeping ruling that “the Second Amendment protects a right to carry arms outside the home,” period.  Such a right, the challengers, argue, would “include” travelling to shooting ranges and second homes.  But it would also call into doubt the crucial limits New York places on who may obtain a general carry license, not to mention similar limits in place in seven additional states and Washington, D.C.  It is these general limits on public carry, in other words, that the challengers really wish to invalidate in the hopes of creating a nationwide right to carry firearms in public.  But it also the public carry limits that the City (and gun control proponents more generally) should be especially interested in defending: research shows that restrictive public-carry licensing regimes are associated with a 13%-15% aggregate reduction in violent crime.   Whether premises license holders may bring their guns to second homes and shooting ranges outside the City seems a minor issue by comparison.

Recognizing these high stakes, New York City and State officials earlier this year wisely granted the challengers the narrow relief they requested: both the City and the State enacted new laws affording premises license holders the right to bring their firearms to out-of-city shooting ranges and to second homes.  Under usual principles of constitutional law, these concessions would have mooted the case, leaving no need for an opinion on the broader contours of the Second Amendment right to bear arms.  And so, in July, New York officials asked the Court to dismiss the case.

That is the request that the Court denied in its October 7 orders list.  That decision, in addition to the likely political dispositions of the five Justices in the conservative majority, puts the four more liberal members of the Court in a difficult spot.  One doesn’t need a fancy law degree to know that, given their conservative colleagues’ refusal to duck the issue on mootness grounds, there are likely five votes to invalidate the City’s gun restriction on the merits.  But how the Court does so—and how the City loses—can make a world of a difference.   

It turns out the Second Amendment argument is not the only constitutional challenge in this case.  For understandable reasons, most observers have focused on that argument, since it is that constitutional provision that can trigger the greatest upheaval in local and state efforts to regulate firearms.  But there is another constitutional challenge worthy of our interest: a challenge based on the Dormant Commerce Clause.

Under longstanding precedent, the Dormant Commerce Clause doctrine forbids states (and cities) to discriminate against interstate commerce.  To illustrate this rule and its sensibility, suppose that New Jersey, in an effort to prop up its restaurant industry, passed a law forbidding its residents to eat at New York City restaurants.  One might imagine New York getting angry and retaliating, passing a similar law prohibiting its own residents from eating in New Jersey.  New Jersey might then escalate, forbidding all commercial interactions between its own residents and New York.  Before long, states around the country might be engaged in destructive tit-for-tat trade wars.  Thankfully, Dormant Commerce Clause doctrine stops this from happening: under it, Congress alone—not the states—has the power to regulate interstate commerce.  

Given this rule, the travel restrictions imposed by New York City’s premises license seem constitutionally dubious for reasons having nothing to do with the Second Amendment. Just as New Jersey can’t forbid its residents to eat at New York City restaurants, New York City can’t forbid its residents to bring their guns to New Jersey shooting ranges. Sure, the former market is obviously larger than the latter, but market size is immaterial (indeed, one of the Court’s most cited Dormant Commerce Clause cases had to do with the Arizona cantaloupe market). What matters is that states cannot discriminate against commerce in other states—which is quite arguably what the City’s premises license does vis-à-vis out-of-state shooting ranges. A similar argument could be made about the City’s former restriction on traveling with a gun to a second home: it is facially discriminatory against the out-of-state home purchase and rental markets.

Suppose the four liberal Justices expressed their willingness to join an opinion striking down New York City’s premises license restrictions on this Dormant Commerce Clause ground. For his part, Chief Justice Roberts might be especially interested in crafting a majority opinion on this rationale, since it would produce a unanimous ruling in favor of the challengers: at least five votes based on the Commerce Clause, with perhaps a concurring opinion based on the Second Amendment.  Indeed, it is possible that Justices Alito and Kavanaugh might join the Dormant Commerce Clause majority as well, viewing that as a worthwhile compromise ruling in favor of gun owners that does not inject the Court into the heated, broader nationwide argument over the Second Amendment and public carry limits.  (Justices Thomas and Gorsuch have expressed more doubt about the Dormant Commerce Clause generally).  Even with a concurring opinion on the Second Amendment ground, a unanimous decision in favor of the gun owners would convey the Chief’s famous admonition that “[w]e do not have Obama judges or Trump judges,” certainly more than a polarizing Second Amendment decision that breaks along predictable partisan lines.  And for the liberals, the crucial result would be to make no new law on the Second Amendment.  That, in turn, would allow the vital general limits on public carry in New York, D.C., and elsewhere—the kind of sensible gun restrictions that have saved countless lives over the years—to survive another day. 

October 22, 2019

What Trump Can Teach Us About Con Law, Ep. 34: 'Foreign Affairs'

[Cross-posted from Apple podcasts]

By Elizabeth Joh

Donald Trump says he should not be impeached as president, since there was "no quid pro quo" on a phone call where he asked the Ukrainian president to investigate a political rival, former Vice President Joe Biden. But does quid pro quo need to be explicitly stated to be a legal issue? And can private citizens like Rudy Giuliani represent America on foreign policy issues? Listen to the latest episode of What Trump Can Teach Us About Con Law.

September 23, 2019

'What Trump Can Teach Us About Con Law,' Episode 33: Obstruction

By Elizabeth Joh

Episode 33 of the podcast "What Trump Can Teach Us About Con Law" takes on the topic of obstruction of justice, in regard to the Mueller investigation and Donald Trump, with a dash of the Martha Stewart case thrown in.

Listen here

 

Listen here

September 16, 2019

Some Thoughts on Sept. 11, 2001, and the Role of the Courts in Enforcing the Rule of Law

[Cross-posted from ImmigProfBlog]

By Kevin R. Johnson

Earlier this week, the Milton L. Schwartz/David F. Levi Inn of Court held its first meeting of the academic year at UC Davis School of Law.  Because the meeting was on the anniversary of Sept. 11, 2001, Judge Emily Vasquez asked me to offer some remarks on the impact of September 11 on the law.  Here are my remarks:

September 11, 2001. The words alone bring forth many images and emotions. The morning saw one of those rare events where people look back and think about where they were when they heard the news. It is hard to ever forget the television footage of the jet crashing into the World Trade Center. Closer to home, I will never forget the Sikh owners of the local 7/11 store who plastered American flags on the store windows, basically trying to convince people that they were not Muslim. This simple act spoke volumes about the tension in the air.

For a long while, some said that “9/11 changed everything.” That, I think, is an exaggeration. However, the events did have significant reverberations. Airplane travel became very different — forever. Armed National Guard members immediately were at California airports. Waiting in long lines for screening at airports became common. "Interacting" with TSA officers became a normal part of the airport experience.

The days that followed saw a blur of government responses. I think it fair to say that some people today have regrets about various missteps in the name of security. Some examples might include

1.    The treatment of Arabs and Muslims – many now think that “special registration” of Arab and Muslim men was unnecessary. Similarly, the mass dragnet and detention of young Arab and Muslim men is not generally looked on as one of the nation’s best moments.

2.    The use of Guantánamo and torture have been roundly condemned.

3.    The USA PATRIOT Act and its intrusion on privacy and individual rights has drawn criticism.

On the positive side of the ledger, the nation saw the inspirational rebuilding of the World Trade Center area, with a memorial and museum. The response reflects the resilience of the people of the United States. Who doesn’t like a good comeback story? In the film world, aren’t we on something like Rocky 13?

All that said, September 11 and security concerns remain with us and influence law and policy. But the courts – and this is the upbeat portion of my remarks – have stepped up. Consider the travel bans put into place by President Trump, which applied to noncitizens from a group of countries with predominantly Muslim populations. There actually were three bans, with the first one put into place in January 2018. The bans were rooted in the same fears that influenced the responses to September 11. Some claimed that they were anti-Muslim.

In the first version, it was not clear whether the ban applied to lawful permanent residents or only to temporary visitors to the United States. Nothing less than chaos resulted at airports from coast to coast. I am proud that UC Davis School of Law had students, alumni, and faculty head to airports to help noncitizens seeking admission into the United States. We even had a law professor who happened to be in New York City and went out to John F. Kennedy International Airport to help people in need. I can’t help but think that some of the willingness of people to help persons affected by the travel ban comes from remembering the injustice of some of the U.S. government’s responses to September 11.

The courts played a critically important role in narrowing the three bans, invalidating the first two. We might debate whether the final one was lawful. However, few would say that the final ban’s lawfulness is not a much closer question than the first one. Through judicial review, the courts in effect narrowed the ban.

In Trump v. Hawaii, the Supreme Court upheld the travel ban after engaging in judicial review of its lawfulness. Even though the Court only engaged in rational basis review, that itself is more than once was the case.  In the not-too-distant past, the courts have not even engaged in any review of immigration and national security decisions of the president and Congress. In addition, the Court finally overruled Korematsu v. United States, the case upholding the internment of persons of Japanese ancestry, citizens and noncitizens alike – a national blemish if there ever was one.

This leads me to a more general lesson as we work through challenging times. Time and again in recent years, the nation has seen courts enforcing the rule of law in these and other areas:

  • The rights of “enemy combatants”
  • Sanctuary litigation
  • Immigrant detention
  • Enforcement of the Flores settlement and protecting the rights of migrant children
  • Asylum policies
  • The litigation over the decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy. This issue is currently before the Supreme Court.

The courts enforcing the rule of law include a conservative Supreme Court. Consider Sessions v. Dimaya (2018) in which a 5-4 Court held that a removal provision of the immigration laws was unconstitutional, an extraordinarily rare occurrence. In another case that surprised many Supreme Court watchers, a 5-4 Court in 2019 found that the Trump administration had not adequately explained its addition of a U.S. citizenship question on Census 2020. In my view, Chief Justice Roberts, who wrote for the majority, joined the more liberal justices to save the Court’s legitimacy as an institution separate from the political process.

Ultimately, my firm sense is that we have learned much from September 11. And I remain inspired by the role of the courts in enforcing the rule of law on national security matters. We all should be proud of that.

June 18, 2019

Want to See My Genes? Get a Warrant

[Cross-posted from the New York Times]

Someone broke into a church in Centerville, Utah, last November and attacked the organist who was practicing there. In March, after a conventional investigation came up empty, a police detective turned to forensic consultants at Parabon NanoLabs. Using the publicly accessible website GEDmatch, the consultants found a likely distant genetic relative of the suspect, whose blood sample had been found near the church’s broken window.

Someone related to the person on GEDmatch did indeed live in Centerville: a 17-year-old high school student. Alerted by the police, a school resource officer watched the student during lunch at the school cafeteria and collected the milk carton and juice box he’d thrown in the garbage. The DNA on the trash was a match for the crime scene evidence. This appears to be the first time that this technique was used for an assault investigation.

The technique is known as genetic genealogy. It isn’t simply a matter of finding an identical genetic match between someone in a database and evidence from a crime scene. Instead, a DNA profile may offer an initial clue — that a distant cousin is related to a suspect, for instance — and then an examination of birth records, family trees and newspaper clips can identify a small number of people for further investigation.

The identification of Joseph DeAngelo in the Golden State Killer case also relied on genetic genealogy. He was charged with 26 counts of murder and kidnapping after a genealogist helped investigators in California identify a third cousin of Mr. DeAngelo’s through GEDmatch and other genealogical records.

While there may be broad public support for a technique that solved serial murders, just because technology allows for a new type of investigation doesn’t mean the government should be allowed to use it in all cases.

Genetic genealogy requires lots of DNA samples and an easy way to compare them. Americans have created millions of genetic profiles already. A 2018 study published in Science predicted that 90 percent of Americans of European descent will be identifiable from their DNA within a year or two, even if they have not used a consumer DNA service. As for easy access, GEDmatch’s website provides exactly this opportunity. Consumers can take profiles generated from other commercial genetic testing services, upload them free and compare them to other profiles. So can the police.

We should be glad whenever a cold case involving a serious crimes like rape or murder can be solved. But the use of genetic genealogy in the Centerville assault case raises with new urgency fundamental questions about this technique.

First, there is now no downward limit on what crimes the police might investigate through genetic genealogy. If the police felt free to use it in an assault case, why not shoplifting, trespassing or littering?

Second, there’s the issue of meaningful consent. You may decide that the police should use your DNA profile without qualification and may even post your information online with that purpose in mind. But your DNA is also shared in part with your relatives. When you consent to genetic sleuthing, you are also exposing your siblings, parents, cousins, relatives you’ve never met and even future generations of your family. Legitimate consent to the government’s use of an entire family tree should involve more than just a single person clicking “yes” to a website’s terms and conditions.

Third, there’s the question of why the limits on Americans’ genetic privacy are being fashioned by private entities. The Centerville police used GEDmatch because the site owners allowed an exception to their own rules, which had permitted law enforcement access only for murder and sexual assault investigations. After user complaints, GEDmatch expanded the list of crimes that the police may investigate on its site to include assault. It also changed default options for users so that the police may not gain access to their profiles unless users affirmatively opt-in. But if your relative elects to do so, there’s no way for you to opt out of that particular decision. And what’s to stop GEDmatch from changing its policies again?

Finally, the police usually confirm leads by collecting discarded DNA samples from a suspect. How comfortable should we be that a school resource officer hung around a high school cafeteria waiting to collect a teenager’s “abandoned” DNA?

All of these issues point to one problem: Police use of genetic genealogy is virtually unregulated. Law enforcement agencies and cooperating genetic genealogy websites are operating in a world of few limits. There are not only few rules about which crimes to investigate, but also unclear remedies in the case of mistakes, the discovery of embarrassing or intrusive information, or misuse of the information.

If these concerns sounds similar to other technology and privacy problems we’re facing, they should. Our genetic and digital identities raise similar questions of autonomy, civil liberties, and intrusion by public and private entities.

Without legal limits, genetic genealogy will become a more popular tool for the police. Rather than wait for the courts to deal with difficult and novel issues about genetic surveillance and privacy, state legislatures and attorneys general should step in and articulate guidelines on how far their law enforcement agencies should go. Congress and the Federal Trade Commission should take further steps to protect the privacy and security of consumer genetic data.

If the police are to be given unlimited access to the genetic information of your entire family tree, they should have it at the end of a public debate, not by default.