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."

December 22, 2015

Trump's Idea on Muslims Fails, Despite Precedent

Cross-posted from The National Law Journal.

Donald Trump's immigration proposals, if you can call them that, are short on details but long on controversy. The presidential candidate kicked off his campaign by labeling immigrants from Mexico as criminals who should be removed in a mass deportation campaign akin to the now-discredited "Operation Wetback" - the U.S. government's official name for the campaign - in 1954.

Once again stirring the pot, Trump recently called for a blanket prohibition on all Muslim noncitizens from entering the United States. That would include temporary visitors, such as university students, as well as noncitizens seeking to become lawful permanent residents as spouses of U.S. citizens.

From a legal standpoint, the constitutionality of the race- and religion-based prescriptions endorsed by Trump is uncertain. Some legal scholars, including Temple Peter Spiro in The New York Times, have suggested that there is a legal basis for Trump's call for an end to Muslim immigration to the United States.

The U.S. Supreme Court's 1889 decision in The Chinese Exclusion Case created what is known as the "plenary power" doctrine, which immunizes from constitutional review the substantive immigration decisions of Congress and the executive branch. That doctrine allowed for the court to uphold the immigration law venomously known as the "Chinese Exclusion Act," whose very name stands as a monument to one of our darkest chapters in immigration history. Now discredited as discriminatory and based in racial animus, the act was designed to exclude Chinese immigrants from the United States. The laws were extended to bar immigration from much of Asia.

The Supreme Court has yet to overrule the plenary-power doctrine and the Chinese Exclusion Case. Many observers, however, believe that it is only a matter of time until the Supreme Court brings immigration law into the constitutional mainstream. Several indicators support that assessment. The court in recent years has rarely mentioned the plenary-power doctrine in its immigration decisions and, at times, has even stretched to ensure that noncitizens have the opportunity for some kind of judicial review of immigration decisions.

True, the Supreme Court has not revisited the Chinese Exclusion Case and, as lawyers and law professors like to say, it remains "good law." However, the court has not had a chance to revisit the precedent.

Political sensibilities have changed so much that Congress has not passed such a bold proposal to ban, for example, the admission of Muslim noncitizens to the United States. Nor has the executive branch expressly targeted Mexican immigrants, as Donald Trump seemingly would, for removal.

In recent years, despite serious concerns about terrorism, no political leader has sought the kinds of overbroad immigration restrictions that Donald Trump has endorsed. Consider that after Sept. 11, 2001, when the nation understandably was tense and fearful, the Bush administration pursued a "special registration" program.

Known as the National Security Entry-Exit Registration System, it required the registration of certain noncitizens, focusing almost exclusively on noncitizens from nations populated predominantly by Muslims. Registration included fingerprinting and photographing as well as interviews. Noncitizens who registered were required to provide detailed information about their plans and to update federal authorities of a change in plans. They were only permitted to enter and depart the United States through designated ports of entry.

Several courts of appeals rejected constitutional challenges to the special registration program but the cases never were taken up by the Supreme Court. Still, the courts took the challenges seriously and found that the U.S. government's actions in response to real national security concerns were rational.

Special registration was criticized in many circles. Still, it is a much more modest and narrowly tailored response based on nationality to concerns with terrorism than Trump's call for the ban on all Muslims. That those measures withstood judicial review should not be read as suggesting that a ban on Muslim migration might pass constitutional ­muster.


The nation has come a long way in terms of racial, ethnic and religious sensibilities since the days of Chinese exclusion and Operation Wetback. It is difficult to believe that the courts today would uphold a ban in Muslim migration to the United States - national security concerns or not. Applying minimal judicial review, the Roberts Court would likely find that Trump's proposal lacked a rational basis and thus was unconstitutional.

In the end, while Trump's bombastic attacks on immigrants might make political hay, one can hope that the American legal system has evolved to a point where anti-immigrant horror stories such as the Chinese Exclusion Act are parts of our history, not present.

April 21, 2010

John Paul Stevens and the American Century

For years after John Paul Stevens arrived in Washington, Court-watchers across the ideological spectrum typecast him as a “wild card” whose fact-conscious approach led to “maverick” results. Those terms seldom surface any more; accounts of his recent decision to step down at the end of this Term instead dubbed him a “lion,” a “leader of the liberal wing.”  Yet neither description alone does justice to Justice Stevens, who today celebrates his ninetieth birthday.  In his jurisprudence may be found not only a commitment to common law processes, but also a vision of how law must serve American ideals.

John Paul Stevens has lived much of what has been called the American Century.  He was born in Chicago on this day in 1920.  Just five months earlier, the Senate had voted to keep the United States out of the post-World War I League of Nations.  Four months before that, deadly race riots had roiled neighborhoods not far from Stevens’ Hyde Park home.  His family was among the city’s most prominent, having earned a fortune in the life insurance business.  In 1927 the family opened the lakefront Stevens Hotel, then the world’s largest, run by John’s father, already manager of another posh downtown hotel.  John’s Jazz Age childhood soon gave way to Depression-era tragedy: Stevens’ father, who had borrowed money from the insurance company in an attempt to save the hotel, was convicted in 1933 of embezzlement.  The Illinois Supreme Court fully exonerated him in 1934.  But the hotel was lost, and the father ran a food concession at the Century of Progress World’s Fair.  John had his first job selling Banbury tarts near the Fair’s replica Globe Theatre.  There began his love of Shakespeare’s plays.

As a University of Chicago undergraduate, John heard Mortimer Adler and Robert Maynard Hutchins – renowned as founders of the Great Books curriculum – debate whether America should come to the aid of England in its fight against fascism in Europe.  When war came Stevens served, earning a Bronze Star for his work as a Navy codebreaker at Pearl Harbor.  At war’s end he returned to Chicago.  Having excelled at Northwestern University School of Law, Stevens was hired by Justice Wiley B. Rutledge, Jr., later described as the conscience of a Supreme Court sorely tested by World War II and the ensuing Cold War.  As Rutledge’s law clerk Stevens played his part in America’s mid-twentieth century struggles to resolve competing claims of national security and individual dignity, and to enforce the Constitution’s guarantees of liberty and equality.

Stevens spent most of the nearly three decades between that clerkship and his own confirmation in Chicago, where he taught antitrust part-time and established himself as one of the city’s premier litigators.  (Stevens is quick to note that his stints in Washington, working on congressional antitrust inquiries, taught him how legislation is made, a lesson that has influenced his approach to statutory interpretation.)  His work as special counsel in a corruption investigation that prompted the resignation of Justices of the Illinois Supreme Court – chronicled in Kenneth Manaster’s Illinois Justice (2001) – led to Stevens’ appointment to the Seventh Circuit in 1970.  Five years later, he became the only Justice nominated by post-Watergate President Gerald Ford.

As commentators soon noted, Stevens brought to the Court the litigator’s focus on the case at hand.  That focus has remained evident not only in the Justice’s penchant for attending to factual wrinkles that sometimes lead to unexpected results, but also in his insistence that the Court should decide only the issues squarely presented in briefs and oral argument.

Less noted was the intellectual framework that Stevens brought with him to Washington.  During his tenure he, like Rutledge and all members of the Court, has grappled with the important issues of this last century:  issues of liberty, equality, and security.  Underpinning many such decisions has been a vision of the relation between the individual and the state that Stevens explicitly has linked to the work of Mortimer Adler and John Stuart Mill.  In a lecture published as The Third Branch of Liberty, 41 University of Miami Law Review 277 (1986), Stevens construed the “liberty” of the Due Process Clauses to protect every individual from “being treated less favorably than the average member of society unless there is an acceptable justification for such treatment.”  He then gave two examples of unjustified invasions of liberty:  when a “person is branded as a ‘felon’” without proper hearing, and when “he is treated less favorably than the majority of his peers simply because his skin is not of the same color as theirs.’”  Stevens thus maintains, as did the Court in Bolling v. Sharpe (1954), that the Constitution’s guarantee of fundamental fairness encompasses a principle of equality dating to the Declaration of Independence.  That view of the Constitution not only has influenced Stevens, but also may be discerned in recent writings of other Justices; most notably, those of Justice Anthony M. Kennedy in cases like Lawrence v. Texas (2003).

This vision, along with his clerkship for Justice Rutledge and other life experiences, influenced Justice Stevens’ jurisprudence on myriad issues.  To cite a few instances:

Capital Punishment.  Soon after joining the Court, Steven drafted the opinion in Woodson v. North Carolina (1976), which made clear that the Eighth Amendment forbids mandatory imposition of the death penalty. But he also cast the essential vote in companion judgments, like Gregg v. Georgia, by which the Court ended a four-year de facto moratorium and reinstated capital punishment. Even then, his wartime experience had sown seeds of doubt about the death penalty, and he confronted his vote in Gregg throughout his career on the Court.  He has drawn an ever smaller circle around the types of cases that are death-eligible.  Noteworthy is his opinion for the Court in Atkins v. Virginia (2002), which reversed a thirteen-year-old precedent to outlaw the execution of mentally retarded persons, and set the stage for the abolition three years later of the juvenile death penalty.  Culminating this jurisprudence is Stevens’ separate opinion in Baze v. Rees (2008), in which he wrote that judicial experience compelled him to conclude that the capital punishment is not susceptible to constitutional application, and then explained that since his view did not command a majority, he would continue to evaluate every death case according to precedent.

Equal Protection.  Justice Stevens initially evinced hostility toward government programs said to give preference to minorities as a means to remedy past discrimination; indeed, in Fullilove v. Klutznick (1980), he likened one such program to the Nuremberg Laws by which Nazi Germany persecuted its Jewish citizens.  In contrast stands a 1948 memorandum, written fully six years before the Court’s landmark decision in Brown v. Board of Education (1954), in which clerk Stevens advised Justice Rutledge to “take judicial notice of the fact that … the doctrine of segregation is itself a violation of the Constitutional requirement.”  About midway through his tenure on the Court, Stevens came to approve affirmative action programs that, rather than dwelling on past discrimination, looked forward to the promotion of diversity in American society.  Wresting from the majority its claim to the mantle of Brown, Stevens declared in 2007 that the integration plans at issue in Parents Involved in Community Schools v. Seattle School District No. 1 served “the public interest in educating children for the future,” adding that “children of all races benefit from integrated classrooms and playgrounds.”

National Security.  An undisputed landmark in Stevens’ career is his forging of coalitions that crossed the conventional liberal-conservative divide to reject key aspects of the President’s post-9/11 campaign against terrorism.  Stevens wrote two of the most important judgments, Rasul v. Bush (2004), which granted federal habeas privileges to noncitizen  terrorism suspects held offshore at Guantánamo, and Hamdan v. Rumsfeld (2006), which invalidated military commissions established by a decree of President George W. Bush.  Those judgments restraining executive power stood in some tension with some of Stevens’ earlier decisions  respecting the extraterritorial reach of law enforcement.  The post-9/11 jurisprudence hearkens to opinions in which Rutledge – in one case, an opinion that clerk Stevens helped draft – stressed the Court’s duty to ensure fair treatment for even the most disfavored persons, even when national security rests in the balance.  For Stevens as for Rutledge, no less than America’s tradition was at stake.  “[I]f this Nation is to remain true to the ideals symbolized by its flag,” Stevens wrote in dissent from one post-9/11 judgment, “it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”

On this his ninetieth birthday, our country celebrates Justice John Paul Stevens’ invaluable service to the American Century.

Cross-posted at SCOTUSblog's "Thirty Days of John Paul Stevens: A series of posts by authors who know him and his work." A direct link to this entry is here.