September 13, 2021

What Trump Can Teach Us About Con Law Ep. 56: 'Shadow Docket'

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

By Elizabeth Joh

On the topic of legal procedure and how it relates to the Supreme Court's so-called "shadow docket" and the Texas abortion law. Listen to Episode 56 of the What Trump Can Teach Us About Con Law podcast.

July 23, 2021

DACA in Doubt After Court Ruling: 3 Questions Answered

[Cross-posted from The Conversation]

By Kevin R. Johnson

Editor’s note: A federal court in Texas delivered a blow to an Obama-era federal program shielding hundreds of thousands of undocumented immigrants who came to the United States as children from being deported.

U.S. District Judge Andrew Hanen ruled on July 16, 2021, in Texas v. United States that Deferred Action for Childhood Arrivals, or DACA, was unlawful. Hanen put a hold on new applications. The decision caught many people off guard because, in 2020, the U.S. Supreme Court had rejected then-President Donald Trump’s effort to dismantle DACA, leaving the policy mostly intact.

The federal government under President Joe Biden has been accepting new applications for DACA protections. That must now stop, Hanen ruled.

We asked legal scholar Kevin Johnson, who specializes in immigration law, to explain what impact Hanen’s ruling will have on DACA – and what comes next.

1. If the Supreme Court already ruled DACA could continue, how can it be unlawful?

In Department of Homeland Security v. Regents of University of California, the Supreme Court did not decide whether DACA, established by President Barack Obama in 2012, was lawful. It held only that in its efforts to end DACA, the Trump administration had not followed the proper procedures required by the federal Administrative Procedure Act to terminate the policy.

In a 5-4 decision written by Chief Justice John Roberts, the court ruled that President Trump’s attempt to end DACA was “arbitrary and capricious” because it had failed to adequately account for, among other things, the severe disruption of the lives of DACA recipients who had relied on the program in making life decisions.

By so doing, Trump had violated the Administrative Procedure Act, and, thus, his administration’s attempt to invalidate DACA was unlawful. As a result, the immigrants already protected by DACA would maintain their legal status, and the ruling seemed to require the administration to allow new DACA applications.

But the Trump administration refused to allow new applications to the program.

In Texas v. United States, Judge Hanen reviewed a different decision by a different president – the Biden administration’s decision to resume accepting new DACA applications. But his ruling relied on the Supreme Court’s analysis of President Trump’s attempted termination of DACA.

Hanen found that the Biden administration had not reopened applications following appropriate procedures under the Administrative Procedure Act, which requires allowing public notice and comment on the policy. As such, he ruled, the Biden administration could not accept new DACA applications.

2. What does the Texas court’s decision mean for current DACA recipients?

Judge Hanen’s ruling only bars the approval of new DACA applications. It does not eliminate DACA relief for the approximately 690,000 people already enrolled in the program.

Current DACA recipients may still apply for renewals every two years. The Biden administration is likely to grant those renewals absent a change in the applicant’s circumstances, such as a serious criminal conviction.

Put simply, for the time being, current DACA recipients are protected from deportation, but the Biden administration can no longer offer that same protection to other undocumented immigrants brought to the U.S. as children – even if technically it seems they could apply for DACA.

3. What’s next in the DACA debate?

President Biden has said his administration will appeal Judge Hanen’s ruling, and the Supreme Court ultimately could take the case. If the ruling were reversed by a higher court, the Biden administration would be permitted to approve new DACA applications.

The courts aren’t the only place where DACA’s legal problems could be addressed. Biden, immigrant rights advocates and congressional Democrats, including Sen. Dick Durbin, are now calling for lawmakers to pass legislation permanently protecting DACA recipients.

The American Dream and Promise Act of 2019 – introduced to Congress during President Trump’s campaign to end DACA – would provide a pathway to citizenship for current DACA recipients. That immigration reform would give them lasting legal status, rather than the temporary – and revocable – relief from deportation offered by DACA.

July 21, 2021

A Silver Lining for Rural America in the Supreme Court’s Decision in Brnovich?

Cross-posted to the Daily Yonder and Legal Ruralism.

Lisa R. Pruitt & Ezera Miller-Walfish, Class of 2022

Although the U.S. Supreme Court’s recent voting rights decision in Brnovich v. Democratic National Committee was very bad news for rural residents (and, indeed, all voters) in terms of the precedent set, there is perhaps a silver lining to be found in the dissenting opinion, written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor.  

That dissent took the concept of distance–rural spatiality–more seriously than any faction of the Supreme Court has ever done. Unlike the majority opinion, Kagan’s dissent examines the extra burden that living in a rural area can place on access, in this case to the ballot box.

In Brnovich v. Democratic National Committee, the Court split along ideological lines, voting 6-3 to uphold the State of Arizona’s restrictions on voting. The Arizona law limits the practice of ballot collection—a process whereby third-party individuals can return a voter’s signed and sealed mail-in ballot—and allows election officials to discard ballots cast at the wrong precinct.

We are a law professor and law student engaged in a thinking critically about the difference rurality makes to the operation of law, and we have followed this case for reasons other than those that have led election and constitutional law scholars to follow it: we’re interested in the case’s implications for rural populations and also how the Court understands lived realities in rural America.

Brnovich’s “Big Picture”

Before we get into the “rural weeds,” though, let us first refer to what Professor Rick Hasen of the UC Irvine School of Law said on his Election Law Blog about the big picture of Brnovich in relation to voting rights precedents.

[The decision] severely weakened Section 2 of the Voting Rights Act [a federal law dating to the Civil Rights Era] as a tool to fight against laws that make it harder to register and vote. Rather than focus on disparate impact—whether a law leads to minority voters registering or voting in lower numbers—the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law. If a law imposes just a “usual burden of voting,” and the burden on minorities is not too much, and the state can assert (but does not need to prove) a significant interest in preventing voter fraud or another interest, then the law can stand.

The term “usual burden” is interesting here because in some prior cases, the focus has been on the opposite — on an “undue burden” on exercising the right. We will come back to that below when we draw the parallel between this voting rights case and another strand of constitutional litigation that uses an “undue burden” standard: abortion restrictions. On voting, Hasen continues:

When you couple this opinion with the 2008 ruling in the Crawford case, upholding Indiana’s voter ID law against a Fourteenth Amendment equal protection challenge, the 2013 ruling in Shelby County killing off the preclearance provision of the Voting Rights Act for states with a history of discrimination, and today’s reading of Section 2, the conservative Supreme Court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law.
The Court today also makes it harder to prove intentional racial discrimination in passing a voting rule.

In a guest post on the Election Law Blog, Professor Doug Spencer provided further big-picture context in relation to the Court’s approach to other enumerated rights.

It’s hard to reconcile the Court’s indifference to inconveniences on voting rights (e.g., fn 11, slip op. at 16) with its uncompromising protection of gun rights or its “most-favored-nation” approach to religious freedom. Why are voting rights so different? And so less worthy of protection?

(Congratulations to Prof. Spencer and UC Davis' own Prof. Chris Elmendorf, whose Columbia Law Review article on Section  2 of the Voting Rigths Act was cited by Justice Kagan in dissent).

A New Response to Rurality

OK, enough on the broad U.S. Constitutional and voting rights context. We want to turn now to why this case is exceptional from a ruralist standpoint.

The backstory here is that we have been arguing in legal scholarship–if not in amicus briefs or any other form that would actually get directly before the Justices–that rural spatiality, aka material distance, is an obstacle the Supreme Court should take seriously in considering “undue burdens” on the exercise of constitutional rights like voting and abortion.

The context in which the issue of distance has arisen most frequently is abortion access, which one of us has written about herehere, and here. The Supreme Court of the United States has rarely grappled in any meaningful way with the distance a woman must travel to reach an abortion provider, an issue that arises when waiting periods make two trips necessary or when state abortion regulations force providers to close, thus forcing women to travel longer distances to other providers. But in Whole Woman’s Health v. Hellerstedt, Justice Breyer, writing for the majority in the 2016 opinion, used the word “rural” only once, though he used the word “miles” 19 times.

Specifically, Breyer quoted the trial (federal district) court opinion, which acknowledged the added burden the clinic closures were causing “poor, rural, or disadvantaged women.” The disadvantaged group most focused on in that litigation were Latinas living in the Rio Grande Valley, who tended to be “poor, rural and disadvantaged.” Interestingly, the Court did not again use the word “poor” or “poverty” in the majority opinion, which is bit unusual–and disappointing–given that poor women disproportionately seek abortions compared to their more affluent counterparts. The Court did, however, use the term “Rio Grande Valley” twice, which suggests that population drew particular solicitude.

The Hellerstedt Court’s use of “miles” also mostly tracked the district court’s findings, here about the specific impact of the law on women’s abortion access. Because the challenged law had the effect of closing abortion providers across Texas, the geographical distribution of abortion providers shifted, with these consequences:

[T]he number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%.

Also looming was the fact that if another pending restriction went into effect, Texas would have abortion providers “only in five metropolitan areas.” Finally, Breyer used “miles” when quoting the federal district court for the proposition that Texas is big–specifically, that it covers nearly 280,000 square miles and that 25 million people–5.4 million of them women of reproductive age–live on that vast land area.

Ultimately, Breyer’s opinion concluded:

We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U. S., at 885–887 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit [from the Texas law], lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.

That was a real victory for rural women, however defined, though the focus was much more on the distance–really increased distance–that any woman might have to travel to reach an abortion provider. This did not explicitly focus on rural women, but the Hellerstedt majority went much further than any prior opinion in taking seriously material distance, expressed as miles traveled.

Rural America and Voting Rights

That brings us to Brnovich and voting rights. In discussing this case, it makes sense to discuss first the number of times the dissent mentions the word “rural” because it far outnumbers–and outweighs–what the majority had to say. Justice Kagan, writing for the dissent, used the word “rural” twelve times, frequently as part of the phrase “rural Native Americans.” The reason for this linkage is that the Voting Rights Act responds to discrimination on the basis of race. Thus, the sensitivity–if there is any–is to racial or ethnic difference, and that difference gets paired with rurality in what scholars call intersectionality. That is, status as a Native American intersects with rurality to aggravate the disadvantage experienced by this population, just as status as a poor woman intersected with status as a Latina and rural location to disadvantage women in Texas’ Rio Grande Valley in Hellerstedt.

Here’s perhaps the most salient quote from Kagan’s dissent:

Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities. The problem with that law again lies in facts nearly unique to Arizona—here, the presence of rural Native American communities that lack ready access to mail service. Given that circumstance, the Arizona statute discriminates in just the way Section 2 proscribes. The majority once more comes to a different conclusion only by ignoring the local conditions with which Arizona’s law interacts.
The critical facts for evaluating the ballot-collection rule have to do with mail service. Most Arizonans vote by mail. But many rural Native American voters lack access to mail service, to a degree hard for most of us to fathom.

This language–humble for a Supreme Court Justice-–reminds me of Justice Thurgood Marshall’s rhetorical practice of putting himself in the shoes of litigants and acknowledging the challenge for Supreme Court justices to do just that. He wrote in United States v. Kras (1973), a case involving a court filing fee:

It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. . . .It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.

One of us has made similar arguments re the Supreme Court’s struggle to grasp the burden of distance, especially with so many current justices having grown up in New York City. There is not, after all, much geographic diversity on the Court, and no current justice has any meaningful links to rurality.

Kagan’s dissent in Brnovich continues with a focus on the burden of rurality in relation to Native Americans, veering into the subject of those who rely on the U.S. mail in order to vote:

Only 18% of Native voters in rural counties receive home mail delivery, compared to 86% of white voters living in those counties. And for many or most, there is no nearby post office. Native Americans in rural Arizona “often must travel 45 minutes to 2 hours just to get to a mailbox.” (“Ready access to reliable and secure mail service is nonexistent” in some Native American communities). And between a quarter to a half of households in these Native communities do not have a car. See ibid. So getting ballots by mail and sending them back poses a serious challenge for Arizona’s rural Native Americans.

For that reason, an unusually high rate of Native Americans used to “return their early ballots with the assistance of third parties.” As the District Court found: “[F]or many Native Americans living in rural locations,” voting “is an activity that requires the active assistance of friends and neighbors.” So in some Native communities, third-party collection of ballots—mostly by fellow clan members—became “standard practice.” And stopping it, as one tribal election official testified, “would be a huge devastation.” [citations omitted]

It bears noting that Arizona, the sixth largest state in land area, is not alone in terms of challenges facing rural residents—and Native American voters in particular. Similar issues in Montana, the fourth largest state in the nation, are highlighted in this recent New York Times story, which focuses on the details of voting on Blackfeet reservation in the northwest part of the state.

Geography, poverty and politics all create obstacles for Native Americans. The Blackfeet reservation is roughly the size of Delaware but had only two election offices and four ballot drop-off locations last year, one of which was listed as open for just 14 hours over two days. Many other reservations in Montana have no polling places, meaning residents must go to the county seat to vote, and many don’t have cars or can’t afford to take time off.

The Majority’s Dismissiveness of Rural and Over-reliance on the U.S. Post Office

From a ruralist standpoint, the most shocking thing about the Brnovich litigation is the Supreme Court majority’s response to the dissent’s concern over these rural realities, especially as they impact Native Americans. Indeed, the majority was so dismissive of these concerns as to relegate its response to a footnote, footnote 21. Justice Alito, writing for the majority, notes the ways people will be still able to vote under the challenged Arizona law, e.g., the legality of having a ballot picked up and mailed by family or household members. Beyond that, he simply relies on provisions of the U.S. Code about the postal service, specifically the provisions about the circumstances under which small post offices may be closed. Here’s the full quote.

The burdens that fall on remote communities are mitigated by the long period of time prior to an election during which a vote may be cast either in person or by mail and by the legality of having a ballot picked up and mailed by family or household members. And in this suit, no individual voter testified that HB 2023 would make it significantly more difficult for him or her to vote. 329 F. Supp. 3d, at 871. Moreover, the Postal Service is required by law to “provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self-sustaining.” 39 U. S. C. §101(b); see also §403(b)(3). Small post offices may not be closed “solely for operating at a deficit,” §101(b), and any decision to close or consolidate a post office may be appealed to the Postal Regulatory Commission, see §404(d)(5). An alleged failure by the Postal Service to comply with its statutory obligations in a particular location does not in itself provide a ground for overturning a voting rule that applies throughout an entire state. [emphasis added]

So, on the one hand, there’s this federal statute that says the USPS must provide a “maximum degree of effective and regular” delivery even to places–including rural ones–where the local post office doesn’t “break even.” On the other hand, if the USPS fails to comply with this statute, that lack of compliance won’t be grounds for overturning a state voting law.

Folks who’ve followed the recent degradation in U.S. Postal Service will immediately see some irony in the majority’s reliance on this institution. Those who’ve followed the decades long efforts to close and consolidate rural post offices will see yet another level of irony. Indeed, the latest proposal to downgrade postal service, detailed here, would ”disproportionately affect states west of the Rocky Mountains,” which includes a lot of Indian Country–and many other rural places, too. Specifically, 57% of first-class mail sent in Montana and 55% sent in Arizona will take longer to arrive.

This has us wondering if rural postal service advocates will try to rely on this footnote in Brnovich majority to resist some future effort to close more post offices. The argument would be, we guess, that if the Supreme Court says it won’t be done because of this statute, then it should not be done. But what the footnote–and the statute–give, they also take away in saying that post offices can, of course, be closed, although there’s a right to appeal such closures.

This is all pretty grim—for all patrons of the U.S. Postal Service, but especially for rural and Native American folks whose local post offices are most likely to be on the chopping block.

The majority opinion in Brnovich is devastating for voting rights generally speaking, and for Native American and rural communities in particular. But there is a sliver of hope to be found here: the dissent in this case shows that the U.S. Supreme Court is capable of taking rurality seriously–at least as a factor intersecting with Native American status. The Brnovich dissent grapples with the lived realities of distance, with the material spatiality of the rural, in an even more explicit and compelling way than the Hellerstedt majority did five years ago.

This leaves us with hope that the groundwork laid by the Brnovich dissent will be invoked in some future case, if and when the liberal wing of the Court is in the majority and called on to take seriously the rights of rural folks and therefore also the state-imposed barriers that undermine their ability to exercise those rights. The liberal bloc has finally shown they know how to do this. Let’s hope they don’t forget if they are some day back in a position to be the final arbiters of what is or is not an “undue burden.”

Ezera Miller-Walfish is a rising third-year law student at UC Davis School of Law.  She grew up in rural northern New Mexico.  
July 12, 2021

Immigration in the Supreme Court, 2020 Term

[Cross-posted from Immigration Prof Blog]

By Kevin R. Johnson

In the 2020 Term, the Supreme Court decided five immigration cases.  The U.S. government prevailed in four of the five cases, an 80 percent success rate.  This rate was higher than that seen in recent Terms.  In my estimation, there are no blockbusters among the five immigration decisions.  The decisions primarily focused on interpreting the complexities of the Immigration & Nationality Act.  The cases are in the chronological order of their decision.

1.    Pereida v. Wilkinson.  Holding:  A noncitizen seeking cancellation of removal, who bears the burden of persuasion to secure relief, fails to carry his burden of showing that he has not been convicted of a disqualifying offense when the conviction is ambiguous about whether it included a disqualifying offense.  U.S. government wins.
Kate Evans for SCOTUSblog encapsulates the impacts of the decision:
"Under the majority’s reasoning, the decision is limited to cutting off deportation relief when a noncitizen’s conviction could be for a disqualifying or non-disqualifying offense and the criminal records are unclear. . . . What is clear is that unavailable or insufficient court records will prevent many long-time immigrants from even asking an immigration judge to consider the hardship of deportation on their U.S. citizen or lawful permanent resident family members. For them, instead of leaving the decision to the immigration judge’s discretion, deportation is now mandatory." 
2.    Niz-Chavez v. Garland.  Holding: A notice to appear sufficient to trigger the stop-time rule for measuring the time necessary for cancellation of removal is a single document containing all the information about the individual’s removal hearing specified in 8 U.S.C. § 1229(a)(1).  Niz-Chavez is a follow-up to the Court's decision in Pereira v. Sessions (2018), which held that a  the Notice to Appear (NTA) is invalid if it does not specify the date and time of the hearing.  That decision has had significant ripple effects on the notices provided to noncitizens by the U.S. government.  Noncitizen wins.
Ashley Oldfield in the Wake Forest Law Review notes that:  "Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction.  After all, `if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.'”
3.    Garland v. Dai, Garland v. Alcaraz-Enriquez.  Holding: The Ninth Circuit's judicially-created rule that, absent an express adverse credibility finding by an immigration judge or the Board of Immigration Appeals, a court of appeals must treat the noncitizen’s testimony as credible, is inconsistent with the Immigration and Nationality Act.  U.S. government wins.
Victoria Neilson for CLINIC sums up the decision as follows:
"The Dai decision does not fundamentally change appellate review in asylum cases other than within the Ninth Circuit. It remains to be seen whether this interpretation will affect any other areas of judicial review beyond the limited credibility determination analysis in this case.  . . . 

Once the BIA issues its decision, federal courts will employ highly deferential review, upholding the BIA’s finding regarding credibility unless `any reasonable adjudicator' should have reached the opposite conclusion. Practitioners should be mindful of these standards at each stage of review and craft their arguments accordingly.  Where the record contains conflicting evidence, practitioners should explain why the inconsistencies should not lead to a finding of adverse credibility." (bold added)

4.    Sanchez v. Mayorkas.  Holding:  The Court  held 9-0 that two Temporary Status (TPS) recipients from El Salvador, who was not lawfully admitted into the United States, is not eligible to adjust his status to lawful permanent resident.  This decision affected tens of thousands of TPS recipients, many of whom had been threatened with loss of their legal status by the Trump administration.    U.S. government wins.
Elura Nanos for Law and Crime encapsulated the decision as follows:

"The Supreme Court of the United States unanimously decided Sanchez v. Mayorkas . . . , ruling that a married couple who fled earthquakes in El Salvador cannot receive green cards even though they have been lawfully in the U.S. for 20 years . . . . The ruling, which has potential to affect hundreds of thousands of immigrants with TPS, was not unexpected, but is being hailed as evidence of the urgency to create a `pathway to citizenship” for TPS holders and other immigrants.'"

5.    Johnson v. Guzman Chavez:  The issue in the case was whether the detention of a noncitizen who is subject to a reinstated removal order and who is pursuing withholding of removal based on alleged persecution is governed by one of two provisions of the immigration statute (8 U.S.C. § 1231 or 8 U.S.C. § 1226).  Jack Chin described the case as "rais[ing] a complex question about bond for migrants in removal proceedings."  Since 1996, when Congress expanded the immigrant detention powers of the U.S. government, the courts have seen increasing numbers of immigration detention cases in recent years.   

Holding:  The Court held that 8 U.S.C. § 1231, not § 1226, governs the detention of noncitizens subject to reinstated orders of removal.  Section 1231, which the U.S. government argued applied, was narrower than Section 1226, in providing bond hearings to noncitizens. Justice Alito delivered the opinion of the Court, except as to footnote 4, which was joined by Chief Justice Roberts, Kavanaugh, and Barrett.  Justice Breyer, joined by Justices Sotomayor and Kagan dissented.   The dissent summarized the case as follows:

"The question in this case is whether respondents are entitled to a bond hearing while immigration authorities engage in the lengthy process of determining whether respondents have the legal right (because of their fear of persecution or torture) to have their removal withheld.  The Court points to two statutory provisions that might answer that question.  The first, §1226, is a more general provision governing detention, and favors respondents. It says that `pending a decision on whether the alien is to be removed from the United States,' 8 U. S. C. §1226(a), the Government `may release the alien on . . . bond' or `conditional parole.' §§1226(a)(2)(A), (B) . . . .  The second, §1231, is a provision that more specifically applies to `aliens ordered removed,' and can be read to favor the Government because it does not expressly provide for a bond hearing during what it calls the 90-day `removal period.' 8 U. S. C. §1231(a)(2) . . . .

The Court agrees with the Government."

U.S. government wins.


By my count, the Supreme Court decided eight immigration cases in the 2019 Term, including the Deferred Action for Childhood Arrivals (Department of Homeland Security v. Regents of the University of California) and the expedited removal (Department of Homeland Security v. Thuraissigiam) cases.   It does not seem to me that the Court's immigration decisions this Term were as significant in terms of legal change or impacts as either of the DACA or expedited removal cases.
The Court might have ended up reviewing more immigration cases.  The Court dropped from the docket a couple of cases after the Biden administration changed Trump administration policies.  Those cases were challenges to the controversial  Migrant Protection Protocol (Remain in Mexico) policy and the Trump administration's reinvigorated "public charge" rule.
There are, of course, other decisions from the 2020 Term that do directly interpret the U.S. immigration laws but will affect noncitizens.  One of those cases is Borden v. United States, which involved the interpretation of the term "violent felony" in a federal criminal statute and likely will affect the interpretation of "aggravated felony" for removal purposes. 
So far, the Court has only granted certiorari in one immigration case for the 2021 Term.   Patel v. Garland raises the question whether 8 U.S.C. 1252(a)(2)(B)(i) precludes judicial review of non-discretionary determinations underlying the determination of the Board of Immigration Appeals that a noncitizen is inadmissible to the United States for permanent residence and therefore ineligible for adjustment of status.  John Elwood for SCOTUSblog explained the basics of the case as follows:

"Petitioner Pankajkumar Patel checked a box on a Georgia driver’s license application falsely stating that he is a U.S. citizen, even though he was eligible for a license regardless of his citizenship. . . . When Patel later sought to adjust his status to lawful permanent resident and obtain a green card, a divided panel of the Board of Immigration Appeals denied him relief, holding that he is inadmissible because he `falsely represented' himself as a U.S. citizen for a benefit under state law. . . . .  When Patel sought review of that decision, the en banc U.S. Court of Appeals for the 11th Circuit parted with decisions of other courts — and rejected the government’s own reading of the governing statute — to hold that the court lacked jurisdiction to review threshold eligibility findings for discretionary relief from removal, including whether the immigrant is inadmissible for incorrectly representing himself as a U.S. citizen. (The government takes the position that the statute forecloses only review of discretionary decisions not to grant relief, not factual findings that are factored into those decisions.) "

July 9, 2021

'Con Law' Episode 54: 'Bong Hits for Jesus'

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

By Elizabeth Joh

We discuss three cases from the recently wrapped Supreme Court term: California v. Texas, Mahanoy Area School District v. B.L., and Lange v. California. (This episode contains explicit language – quoted from a cheerleader).

Listen to episode 54 of What Trump Can Teach Us About Con Law.

June 18, 2021

The Surprisingly Broad Implications of Nestlé USA, Inc. v. Doe for Human Rights Litigation and Extraterritoriality

[Cross-posted from Just Security]

By William S. Dodge

In Nestlé USA, Inc. v. Doe, the U.S. Supreme Court took up the question of corporate liability for human rights violations under the Alien Tort Statute (ATS) for the third time. The Court again failed to resolve the question, holding instead that application of the ATS cause of action would be impermissibly extraterritorial in this case because nearly all the defendants’ relevant conduct occurred in Ivory Coast. At first glance, this holding appears narrow, which is no doubt why it attracted the votes of eight Justices. But the decision has potentially broad implications for ATS suits against individuals and for the extraterritorial application of federal statutes in other areas. This article will briefly discuss the questions of corporate liability and limiting the ATS cause of action before exploring the Court’s extraterritoriality holding and its potentially dramatic implications.


The defendants are U.S. companies that buy cocoa from Ivory Coast. The plaintiffs are individuals from Mali who were trafficked to Ivory Coast as child slaves to work on cocoa farms. Plaintiffs alleged that defendants aided and abetted their slavery by providing the farms that held them with technical and financial resources despite knowing or having reason to know that the farms were using children as slaves. Plaintiffs alleged that the defendants made all their major operational decisions from the United States.

The ATS is a jurisdictional provision that was part of the First Judiciary Act of 1789. As codified today, it gives federal district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 1980, the Second Circuit held in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that non-U.S. citizen plaintiffs could use the ATS to sue a foreign police inspector who had come to the United States to recover damages for torture that occurred abroad, reasoning that the plaintiffs were “aliens,” that torture is a tort, and that torture violates modern customary international law.

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court rejected arguments that a statutory cause of action should be required for claims under the ATS and that claims should be limited to the three violations of the law of nations that the First Congress had in mind in 1789 (violations of safe-conducts, infringement of the rights of ambassadors, and piracy). The Court recognized an implied, federal-common-law cause of action for violations of modern international law that are as generally accepted and specifically defined as the three historical paradigms, although the Court found that Alvarez-Machain’s claims of arbitrary detention did not meet that standard.

In 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), that corporations could never be sued under the ATS because corporate liability for human rights violations did not meet the Sosa standard. The Supreme Court granted review on the corporate liability question, but after reargument the Court declined to answer the question. Instead, the Court applied the presumption against extraterritoriality to the ATS cause of action, holding that ATS claims must “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application” and that “mere corporate presence” in the United States is insufficient. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124-25 (2013). The Court tried again to answer the corporate liability question in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). Again, it failed, holding only that the ATS cause of action does not extend to foreign corporations. Id. at 1407.

The Nestlé case presented the Court with a third opportunity to decide the corporate liability question because the defendants were U.S. corporations not protected by Jesner. But once again, the Court disposed of the case on other grounds. Justice Thomas concluded in Part II of his opinion (joined by every member of the Court except Justice Alito) that applying the ATS cause of action would be impermissibly extraterritorial because the plaintiffs had not alleged sufficient relevant conduct in the United States. Justice Thomas went on in Part III to propose that the ATS cause of action should be limited to the three historical paradigms that the First Congress had in mind, but he was joined only by Justices Gorsuch and Kavanaugh. Justice Sotomayor (joined by Justices Breyer and Kagan), agreed with Justice Thomas about extraterritoriality but disagreed about limiting the ATS cause of action. She also reiterated her view that the ATS cause of action should extend to corporations. Justices Gorsuch and Alito agreed with Justice Sotomayor that there was no basis for limiting the ATS cause of action to natural persons (which, yes, makes five Justices on that point of law). Justice Gorsuch (joined by Justice Kavanaugh), however, would have overruled Sosa, whereas Justice Alito would not have reached the extraterritoriality question before deciding other issues he though should be preliminary.

Corporate Liability

The Court granted review in Nestlé to decide the corporate liability question that it left open in Kiobel and Jesner. In Jesner, the plurality and the dissent fundamentally disagreed on how the question should be framed. Justice Kennedy’s plurality opinion asked whether there was a “norm of corporate liability” under international law, whereas Justice Sotomayor’s dissent read Sosa to require an international consensus about the prohibited “substantive conduct” but not about the “forms of liability.” As I have previously explained at Just Security, Justice Sotomayor’s framing is most consistent with international law, which prohibits certain violations of human rights but leaves it to each nation to decide whether and how to provide remedies for such violations. (Full disclosure: I wrote an amicus brief on this question in Jesner and a similar brief in Nestlé.) The Trump administration reversed the position on corporate liability under the ATS that the United States had taken in Kiobel and Jesner, arguing that the Supreme Court should reject corporate liability—not on international law grounds but because the decision should be left to Congress.

Although the majority opinion in Nestlé did not address the question of corporate liability, five Justices saw no reason to distinguish between corporations and natural persons as defendants. Justice Gorsuch wrote: “The notion that corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.” Justice Alito added in dissent that “corporate status does not justify special immunity.” And Justice Sotomayor (joined by Justices Breyer and Kagan) agreed (n. 4). There was no discussion in any of the Nestlé opinions of the need for a “norm of corporate liability” under international law, and one hopes that this spurious argument has finally been put to rest.

Limiting Sosa

In Part III of his opinion, Justice Thomas (joined by Justices Gorsuch and Kavanaugh) would have held “that federal courts should not recognize private rights of action for violations of international law beyond the three historical torts identified in Sosa.” In Justice Thomas’s view, “creating a cause of action to enforce international law beyond [the] three historical torts invariably gives rise to foreign-policy concerns,” warranting deference to Congress. Congress had also shown itself willing and able to address human trafficking by amending the Trafficking Victims Protection Reauthorization Act (TVPRA) to add a private right of action, he explained. With respect to torts beyond the three historical paradigms, Justice Thomas concluded, “there always is a sound reason to defer to Congress.” In Part II of his concurrence, Justice Gorsuch (joined by Justice Kavanaugh) largely echoed Justice Thomas but suggested more explicitly that the Court should overrule Sosa or, as he put it, avoid “adhering to a precedent that seized power we do not possess.”

Justice Sotomayor spent her concurring opinion, in which Justices Breyer and Kagan joined, defending Sosa against Justice Thomas’s attack, which would have overruled that decision “in all but name.” It was the First Congress’s assessment, she noted, “that diplomatic strife is best avoided by providing a federal fo­rum to redress those law-of-nations torts that, if not reme­died, could bring international opprobrium upon the United States.” “Barring some extraordinary collateral consequence that could not have been foreseen by Congress,” she continued, “federal courts should not, under the guise of judicial discretion, second-guess that legislative decision.” Although Congress could have limited the ATS to the three historical paradigms with which it was familiar, it did not do so. Instead, Congress relied on “international law [to] suppl[y] the substantive contours of actionable torts.” Justice Sotomayor concluded that to “suggest that identifying actionable torts risks upsetting the careful balance of interests struck by the lawmakers is ahistorical at best” (quotation marks and alterations omitted).


The Justices found more room for agreement on the question of extraterritoriality, with eight Justices joining Part II of Justice Thomas’s opinion. Only Justice Alito dissented, reasoning that the extraterritoriality question should not be addressed before other questions that the Court had not considered.

The Court did not apply Kiobel’s “touch and concern” test but rather the two-step framework for the presumption against extraterritoriality subsequently articulated in RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016). Under that framework, as I have explained at length elsewhere, courts determine the geographic scope of a statutory provision by looking for a clear indication of that scope (step one) or by looking to the focus of the provision (step two).

In Kiobel, the Supreme Court found that there was no clear indication of geographic scope with respect to the ATS cause of action and did not address the focus question. In Nestlé, the parties disagreed about the focus of the ATS, but the Court found it unnecessary to resolve the focus question because it was still up to the plaintiffs to “establish that ‘the conduct relevant to the statute’s focus occurred in the United States’” (quoting RJR, 136 S. Ct. at 2101). The Court in Nestlé noted that “nearly all the conduct that [the plaintiffs] say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast.” Plaintiffs had alleged that the defendants made their major operational decisions in the United States, but the Court concluded that “allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.”

The key language from RJR on which the Nestlé decision turned is worth quoting in full:

If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s “focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.

In RJR, the language about “conduct relevant to the statute’s focus” was dictum (as I have explained in greater detail at pp. 49-50 here). When the Court in RJR came to apply the second step of the analysis to RICO’s private right of action, the Court made no mention of the need for conduct in the United States, holding simply that the provision “requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries.” RJR, 136 S. Ct. at 2111. Similarly, in Morrison v. National Australia Bank, Ltd., 561 U.S. 247 (2010), the Supreme Court found the location of the conduct irrelevant in applying the presumption against extraterritorially, adopting a “transactional test” for the geographic scope of Section 10(b) of the Securities Exchange Act that turns entirely on the location of the transaction. Id. at 269-70. Based on these decisions, the Restatement (Fourth) of Foreign Relations Law rejected a separate requirement of conduct in the United States when the focus of the statutory provision is on something other than conduct as it was in RJR and Morrison, providing simply: “If whatever is the focus of the provision occurred in the United States, then application of the provision is considered domestic and is permitted” (§ 404 cmt. c).

Nestlé’s reliance on RJR’s dictum has potentially broad implications both for ATS cases and for the Court’s approach to extraterritoriality more generally. With respect to ATS cases, if plaintiffs must show relevant conduct in the United States, it is hard to see how traditional ATS cases against individual defendants can continue. The Second Circuit’s seminal decision in Filartiga, for example, involved torture by a Paraguayan police inspector in Paraguay. The connection to the United States was the fact that the inspector later came to the United States. That fact might have been sufficient to satisfy Kiobel’s “touch and concern” test. See, e.g., Jane W. v. Thomas, 354 F. Supp. 3d 630, 639 (E.D. Pa. 2018) (finding residence sufficient to satisfy “touch and concern” test). But it seems unlikely to satisfy Nestlé’s requirement of relevant conduct in the United States.

Of course, many cases against individual defendants are now covered by the Torture Victim Protection Act (TVPA), which provides an express statutory cause of action against natural persons for torture and extrajudicial killing under color of foreign law. Claims for torture and extrajudicial killing may therefore continue under the TVPA, subject to federal common law rules governing foreign official immunity. But the TVPA does not cover other well-established human rights violations like genocide and war crimes. Genocide and war crimes do sometimes involve torture and killing, but the TVPA’s color-of-foreign-law requirement would nonetheless preclude those suits against non-state actors. The TVPA also does not cover piracy. Almost everyone seems to agree that piracy was within the First Congress’s contemplation when it passed the ATS, but piracy does not involve conduct in the United States and so would not be actionable under Nestlé. It seems odd that Justices Breyer, Sotomayor, and Kagan would join the majority’s extraterritoriality analysis without some consideration of its implications for ATS claims against individuals.

Beyond the human rights context, adding a requirement of relevant conduct in the United States is likely to disturb the law concerning extraterritoriality in other areas—and in ways that might concern other members of the majority too. For example, Morrison rejected the Second Circuit’s conduct and effects tests for securities fraud claims, finding those tests to be “unpredictable and inconsistent,” in favor of a more easily administrable test that turns on the location of the transaction. Lower courts have expressly held that Morrison’s transactional test does not require conduct in the United States. See Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 69 (2d Cir. 2012). Nestlé upsets that understanding by suggesting that conduct relevant to the transaction must also occur in the United States. Lower courts will now have to consider not only whether a separate conduct requirement applies to securities fraud claims but also what kind of conduct is relevant to the transaction and how much conduct is required, making the application of Section 10(b) in transnational cases unpredictable and inconsistent once again. Nestlé will not unsettle every established test for geographic scope, because some tests are based on clear indications of congressional intent (e.g. Title VII of the 1964 Civil Rights Act) and others were fixed before the presumption against extraterritoriality was reborn in 1991 (e.g. the effects test for antitrust law). But Nestlé is likely to make life more complicated for the lower courts considering questions of extraterritoriality than the Justices anticipated. Indeed, if the Justices had anticipated these downstream effects, they would have presumably provided some guidance to avoid them.


Nestlé certainly does not mean the end of human rights litigation in U.S. courts. Cases against individual defendants may continue under the TVPA, the TVPRA, and similar statutes granting express causes of action. But Nestlé does seem to mark the end of the Filartiga line of ATS cases against individual defendants whose relevant conduct occurs outside the United States. It also appears to limit the ATS cause of action to claims against U.S. corporations based on conduct in the United States that goes beyond making decisions about how to conduct operations abroad. There may be cases that fit that description, but they are likely to be few and far between.

May 3, 2021

Breaking News: Supreme Court Finds for Noncitizen in Relief From Removal Case -- Niz-Chavez v. Garland

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

On April 29, the Supreme Court in Niz-Chavez v. Garland held that a notice to appear sufficient to trigger the “stop-time” rule for measuring the time for cancellation of removal relief must be a single document containing all the information about the noncitizen's removal hearing.  The case involved the application of the Court's 2018 decision in Pereira v. Sessionswhich held that A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a notice to appear under the statute , and does not trigger the "stop-time rule."

Justice Gorsuch delivered the majority opinion.  Justices Thomas, Breyer, Sotomayor (who wrote for the Court in Pereira), Kagan, and Barrett.  Justice Kavanaugh filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.

As described by the syllabus to the opinion, the majority held that "[a] notice to appear sufficient to trigger the . . . stop-time rule is a single document containing all the information about an individual’s removal hearing . . . . "

In recapping the argument, Jayesh Rathod is spot on in predicting the outcome:

"By the end of the hour, four justices – Breyer, Gorsuch, Kagan and Sotomayor – had openly expressed skepticism about the government’s reading of the statute. Roberts and Barrett revealed less, but seemed persuaded that the government could sidestep this entire issue by modifying some agency practices. Although few of the justices invoked Pereira as controlling precedent, the court’s decision there – coupled with its seeming reluctance to indulge bureaucratic inefficiencies – could very well lead to another lopsided decision in favor of noncitizens."

Here is the SCOTUSBlog collection of materials and commentary on the case.

We will post analysis of the Court's decision as it becomes available.

UPDATE (April 30):  The title of Mark Joseph Stern's article in Slate ("Neil Gorsuch’s Persnickety Libertarianism Gave Immigrants a Win at the Supreme Court") offers a good hint of his analysis of the Court's decision in Niz-Chavez.  The punch line:

"On Thursday, Agusto Niz-Chavez received the benefit of the written word. He can now petition for the ability to remain in the United States with his three children, all American citizens. The decision may not be an earth-shaking victory for immigrants’ rights. But it vindicates a principle that has been badly damaged in recent years: Immigration officials can’t cheat non-citizens out of a right guaranteed to them by the plain language of the law."

May 3, 2021

How Andrew Cuomo Exploits Public Confusion Over the Definition of Sexual Harassment

[Cross-posted from NBC News]

By Vicki Schultz and Brian Soucek

Reporters finally had a chance this week to ask New York Gov. Andrew Cuomo about “all the groping, the sexual harassment” that current and former staffers have alleged in recent months. “I didn’t do anything wrong,” Cuomo insisted, despite having apologized in March for “acting in a way that made people feel uncomfortable." He also denied even engaging in the underlying acts several women have reported.

How can all these claims be true?

Cuomo seems to be following the tried-and-true playbook used by powerful men accused of sexual harassment throughout modern history.

Cuomo seems to be following the tried-and-true playbook used by powerful men accused of sexual harassment throughout modern history: deny and obfuscate. Use your public stature to reinforce a flat denial of sexual assault or other unwanted sexual advances. And seize on definitional ambiguity to deny that any other actions “that made people feel uncomfortable” count as sexual harassment.

A lawyer for Cuomo has defended the governor’s unsolicited kisses and “ciao bellas” by saying that he’s not a sexual harasser — he’s just “old-fashioned.” But what’s actually old-fashioned, and obsolete, is the definition of sexual harassment used by many popular media outlets and workplace harassment trainings where most people get their understanding of what sexual harassment is. For decades, legal cases have made clear that sexual harassment includes sexist insults and gendered demands, not just sexualized advances. But most people get their understanding of sexual harassment from the stories told in the news and at work, not from esoteric legal sources. Cuomo is taking advantage of people’s confusion about the nature of the problem — and what needs to be done about it.

Take the news media. Even The New York Times has promoted an overly narrow sexualized conception of sexual harassment in its reporting, as we explained in a 2019 article. In 2017, the Times helped ignite the #MeToo movement with its Pulitzer prize-winning reporting on alleged harassers like Harvey Weinstein and Bill O’Reilly. The coverage followed a familiar pattern: A powerful man in an influential field is accused of making unwanted sexual advances with women whose careers depend on him. The harassment is top-down, male-to-female, and, most important, sexualized. The Times even defines sexual harassment this way, as “a range of behaviors that are sexual in nature and nonconsensual.” Most other media outlets have viewed and covered sexual harassment in a similar way.

So, too, have employer policies and training programs, the sources designed to inform people about their rights. More Americans probably receive training on sexual harassment than any other legal topic, except perhaps drivers’ education. Yet, a comprehensive survey one of us conducted many years ago found that, without exception, employer policies defined harassment exclusively as unwelcome sexual advances and other sexual conduct, including sexual jokes and remarks. A more recent study found that little had changed. In an extensive analysis of sexual harassment trainings up to 2016, the vast majority of companies continued to define harassment in purely sexual terms.

As a legal matter, the sexualized definition of harassment contained in these everyday sources is over 20 years out of date. Worse, this definition leaves out most of the harassment women (and others) actually face on the jobStudy after study shows that most harassment doesn’t involve sexual advances or coercion. More often, harassment involves nonsexualized acts that demean, exclude, sabotage, assault or otherwise mark women as unwelcome, incompetent, insignificant or just “different,” because of their sex. Sexist put-downs are more common, and just as illegal, as sexual come-ons.

The Supreme Court recognized this broader conception of sexual harassment as far back as 1998, in an opinion by Justice Antonin Scalia involving a man harassed by his male co-workers on an oil rig. The court ruled that “sexual harassment” doesn’t have to be sexual in motivation or content to constitute unlawful workplace sex discrimination; the misconduct simply has to occur “because of sex.” So, harassment rooted in stereotypes about what constitutes proper work or behavior for men or women violates the law, just like male-female sexual advances. Gay men and others seen as not “man enough,” like women who take on traditionally male jobs or in other ways don’t keep to what some see as “their place,” frequently are harassed in both nonsexual and sexualized ways, more often by their co-workers than their bosses. The conduct is legally considered sexual harassment nonetheless.

But what does this have to do with Cuomo? Former aides have accused him of unwanted kissing and touching, ogling and commenting on their appearance, asking about their sex lives, and otherwise suggesting he wants to have sex with them. So, the allegations against him fall squarely within the popular understanding: A powerful man makes unwanted sexual advances toward the women who work for him. No need for a clearer or expanded definition, right?

Wrong. If we focus solely on sexual advances and misconduct, we fail to see that these behaviors are typically part of a broader pattern of sex-based and generalized harassment, and often other abuses of power, too. We also fail to see the deeper motivations behind the abuse and the institutional structures that enable it. For even when it does consist of gross sexual advances, sexual harassment is less about securing sexual gratification than it is about enacting a sense of macho authority and superiority over working women and others. It’s a way of reinforcing gender hierarchy.

We saw this with Harvey Weinstein, where media coverage that focused on his awful sexual transgressions obscured the fact that he wasn’t just a sexual predator. According to the New York attorney general, he was also engaged in a gross pattern of sexual and nonsexualized harassment against female and gay male employees, alongside misuse of corporate resources. Tying it all together was an outsize sense of entitlement, enabled by an industry and institutional position that gave Weinstein unchecked discretion to make or break other people’s careers and lives. And a sense of impunity about flatly (and in Weinstein’s case, falsely) denying the allegations, like other powerful harassers before him.

So too with Cuomo. Instead of debating how many uninvited gropes or lewd advances it takes to establish a sexual harassment claim, we need to see these stories within a larger pattern of reported verbal abuse, gendered dress codes, demeaning nicknames and threats of career-ending ruin, both by Cuomo and by others in his orbit. All are part of Cuomo’s projection of patriarchal power and authority. And it all constitutes sexual harassment, under the law, whether it fits the narrow popularized definition or not.

Ultimately, no one should be surprised that Cuomo, like so many other powerful alleged sexual harassers before him, has also been accused of broader misconduct, including lying about the death toll in New York’s nursing homes and using campaign money to promote his book. Research shows that the more unfettered the institutional power that bosses and leaders are given, the freer they feel to lord it over others and use it in abusive ways. To end sexual harassment and abuse, then, we can’t just remove individual harassers. We have to remake the structural positions they occupy, constraining unnecessary, arbitrary discretion and imposing public accountability. Properly understanding sexual harassment is just the necessary first step.

April 12, 2021

The simple principle that can fix American law

[Cross-posted from The Atlantic]

By Aaron Tang

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 22, 2021

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

[Cross-posted from The Washington Post]

By Aaron Tang

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

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

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

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

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

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

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

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

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

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

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

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

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

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