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At the National Law Journal, Zoe Tillman offers some excerpts from her interview with Roberta Kaplan, who argued United States v. Windsor. One of the more revealing exchanges is between Pam Karlan and Roberta Kaplan, who had represented Edie Windsor before the 2nd Circuit. Kaplan was considering giving the case to Karlan. Karlan, in a move evincing profound integrity, told her to keep the case!

NLJ: Eventually, Edith’s case is the one that makes it up to the Supreme Court, and at that point, you had never argued a case in the Supreme Court. Why did you want to do this?

Kaplan: There was a lot of pressure on me not to argue the case. When I started practicing law, there was no such thing as a “SCOTUS bar,” but there is today. And there was a lot of pressure that I should give the case to be argued by someone who was a member of this Supreme Court elite bar.

After thinking about it for a while, I had a call. I called up Pam Karlan, who is a professor at Stanford, who I had brought in to assist on the case the minute we knew we had a chance at getting to the Supreme Court. And I said to her, I said, “Pam, I want you to know I’m thinking about whether or not to argue this case. And I want you to know that if I don’t argue the case, and that if Edie agrees with my recommendation—because ultimately it will be her call—I’m gonna recommend that you argue the case.”

Pam immediately said to me, she said, “Robbie,” she said, “you should argue the case.” She said, “Look, there are things about arguing in the Supreme Court that are different. You will have to learn them. You can learn them. They’re not that hard to learn. And you know this case, and there’s absolutely no reason why you shouldn’t argue it.”

That was a conversation that I will never forget for the rest of my life.

Stunning. How many members of the “Supreme Court Bar” would been so magnanimous, and insist that someone else argue one of the most important cases of the decade? One of my colleagues who argued a Supreme Court case, where he was counsel below, regaled me how other attorneys tried (unsuccessfully) to poach the client.

Kudos to Karlan.

In May 2015, the Supreme Court requested the views of the Solicitor General on Nebraska and Oklahoma’s original jurisdiction suit against Colorado, stemming from their legalization of marijuana. Six month later, according to the docket, the views still have not been filed.

As I’ve noted for some time, it will be very interesting to see how the SG explains–or ignores–the fact that the President has decided not to prosecute any marijuana crimes in states that have legalized it. The administration’s reasoning has been, to say the least, hazy. But the SG’s brief must meet a higher standard.

Update: By way of comparison, a CVSG in Harris v. Quinn was requested on 6/29/12 and was not filed till 5/10/13. If that year-long schedule holds, Solicitor General Verrilli may just wait for the next administration to figure this out. Or file something on the way out the door.

I saw the Tom Hanks/Steven Spielberg movie Bridge of Spies. It was an excellent lawyer movie. Beyond the scene in the Supreme Court, which I blogged about two weeks ago, the movie was a stirring defense of the Constitution. (There are some spoilers in here, so stop reading if you want to watch the movie).

In one scene, after he began the representation of Abel, a CIA agent follows Donovan. The agent asks Donovan what Abel told him in confidence. Donovan replies, “We are not having this conversation.” The agent chuckles, and says, sure, we never had this conversation. Donovan replies, “I mean it. We are not having this conversation.” Donovan then offers a stirring defense of the attorney client privilege, and explains why nothing divulged by his client would be revealed. Donovan then explains that we all live by a rulebook–the Constitution. “It’s what makes us all Americans.’ The CIA Agent says something like, “Do we need to worry about you?” in a threatening manner. Donovan stares him down, and walks away. Bravo.

In another touching scene, Donovan’s son is freaking out about the threat of thermonuclear war. He drew a blast radius emanating from the Empire State Building, and tried to figure out if their Brooklyn home would be destroyed. The young son asks Donovan, why he was defending a spy. Donovan explains the importance of everyone getting a fair defense. The son does not seem persuaded.

In one of the more poignant scenes, Donovan has the initial hearing with the Judge Byers and the AUSA. The judge sets trial for three weeks away. Donovan respectfully asks for six weeks, so he has enough time to prepare a defense. The judge says something to the effect of “What are you doing?” The judge admits that he thinks the defendant is guilty, and tells Donovan that he should have a competent defense, but they should not delay the inevitable. Later there is another scene with the same judge where Donovan tries to exclude evidence seized from Abel’s apartment. Donovan argued that the INS officers only had an administrative warrant for deportation, which did not allow them to search his hotel room. Donovan’s argument was a bit muddled–I heard something about Yick Wo and a poisonous tree–but he made the argument well enough. The Judge scoffed at him, and said Abel was guilty, and should be executed. His courtroom was not to be used for such antics. The motion was denied in chambers. In reality, Judge Byers wrote a four-page decision at 155  F.Supp. 8, and found that the arrest under the deportation warrant was made in good faith, and the evidence was lawfully seized.

After Abel was convicted by the jury, Donovan visits the house of the judge, and tries to talk him out of sentencing Abel to death. The judge at first doesn’t seem interested. Then Donovan says that at some point, an American spy will be captured by the Soviets. Abel can then be used as a bargaining chip to get an American back. Abel isn’t much use dead. The judge seems persuaded, and ultimately sentences him to 30 years in jail. The courtroom erupts with that sentence, as people scream out that Abel should be sent to the gallows.

After the sentence, Donovan tells the managing partner at his firm (played by Alan Alda) that he is going to appeal the exclusion issue. (Donovan was an insurance lawyer, but one who had served as a prosecutor at Nuremberg). Alda was furious. He said that Abel received a competent defense at trial, and avoided an execution, but that Donovan should not waste his time appealing the case. Donovan did appeal. In the movie they went straight to the Supreme Court. I suppose the 2nd Circuit isn’t sexy enough. (CA2 issued a 17-page decision affirm the admission of the evidence at 258 F.2d 485).

The scene in the Supreme Court was aesthetically-realistic, as I noted in my previous post. Donovan spoke uninterrupted for about 2 minutes. He began, “Mr. Chief Justice, and may it please the Court.” I can’t quite recall what he said, as it wandered about with much legal resonance, but it was delivered well.

The second half of the movie follows Donovan as he attempted to negotiate Abel’s release for an American spy pilot, who was shot down over the Soviet Union. Donovan’s commitment to his client is astounding, as he puts his own life in jeopardy as he travels to East Germany to arrange the transfer over the “Bridge of Spies.” In one of the first scenes in the movie, Donovan tells Abel that he doesn’t represent the United States, the government, or anyone else. And that was the truth. He represents Abel–and he is probably the only person in America who doesn’t want him killed. This was an excellent lawyer’s movie. The plot was a bit slow, and dragged at times, but I really enjoyed watching it.

Despite my routine criticism of the Obama Administration’s executive overreach, one area where I find myself largely in agreement is the framework established by the 2014 DAPA OLC Opinion. In short, the cornerstone of the inquiry is whether the President’s actions are “consonant” with congressional policy. This is a helpful restatement of Justice Jackson’s framework from Youngstown. Where I part from the Obama Administration is on the facts of what congressional policy embodies. As I document in an essay I published last year in the Georgetown Law Journal Online, DAPA is not “consonant” with congressional policy embodied in the text and history of the INA. I think OLC faltered in looking at the scope of acquiescence far too broadly. During a remarks at the Appellate Judges Education Institute, former OLC Chief Virginia Seitz noted that her conception of congressional acquiescence expanded during her time in government service.

Virginia Seitz: Before going into gov service I had a very narrow conception of congressional acquiescence. #AJEI

— Josh Blackman (@JoshMBlackman) November 14, 2015

(If the federal government loses in U.S. v. Texas, it will be on this ground (as I’ve noted for over a year now). This is why the “bridge” analogy I’ve developed to explain past exercises of class-wide deferred action is so pivotal. The 5th Circuit adopted this approach.).

In any event, one of the most important attributes of the Obama Administration’s “certain circumstances” approach to executive power, is that OLC determined that the President could not grant deferred action to the parents of DACA beneficiaries, as this was far too attenuated from Congressional policy. It would have effectively stacked deferred action on top of deferred action, without any familial relation to a U.S. Citizen. This was a bridge too far for OLC.

However, this conclusion was not accepted by the immigration professoriate. In a Nov. 3 letter to the President–on the eve of the announcement of DAPA–law professors Hiroshi Motomura, Shoba Sivaprasad Wadhia, Stephen Legomsky, and Michael Olivas wrote that “there is no legal requirement that the executive branch limit deferred action or any other exercise of prosecutorial discretion to individuals whose dependents are lawfully present in the United States.” Under the professors’ views, it was irrelevant if the individual had immediate family members—let alone dependents—who were citizens of LPRs.  The professors explained quite candidly that “any other criteria for deferred action or other exercises of prosecutorial discretion—are policy choices, not legal constraints.” Based on this reasoning, any group of aliens the President determines warrant humanitarian relief, could be afforded deferred action.  Therefore, Congress and the INA impose absolutely no constraints on the prosecutorial discretion of the President, so long as the President does not entirely stop deportations.

OLC flatly rejected this reasoning.  Even for President Obama—no shrinking violet to testing the bounds of executive power—immigration policy would be changed inside, not outside the law.

“Immigration Outside the Law” is the title of Hiroshi Motomura’s magisterial tome. In an essay for the Washburn Law Journal’s sympoisum on Motomura Foulston Siefkin’s lecture, I discuss “Immigration Inside the Law.” Here is the abstract:

To many scholars, paradoxically, practical immigration law has little to do with actual immigration law. Professor Hiroshi Motomura, a leading immigration law professor, admits quite candidly that the “traditional distinction between Congress’s authority to make law and the President’s authority to enforce law—always a very imprecise line to begin with—has little practical meaning” for immigration enforcement. It is no coincidence that Motomura’s magisterial tome is titled Immigration Outside—not inside—The Law.

In this contribution to a symposium on Prof. Motomura’s Foulston Siefkin lecture, I contrast the disconnect between the professoriate’s view on immigration law and that of the Obama Administration. Specifically, I chronicle how the Office of Legal Counsel grounded the legality of Deferred Action for Parents of Americans (“DAPA”) in congressional acquiescence, rather than an unbounded notion of executive power.  While I ultimately conclude that OLC’s defense of DAPA fails, at a minimum, its recognition of Congress’s persistent, if not quiet role in cabining executive discretion serves as a powerful refutation of the scholarly consensus of immigration outside the law.

Charlie Savage’s book, Power Wars, puts a finer point on how even the Obama Administration would not accede to the professoriate’s vision of executive power with respect to deferred action:

The decision to publish the OLC Opinion, rather than limit it to “oral” advice—as was the case with the 2012 DAPA decision—was critical in rebutting the professor’s positions. In Power Wars, Charlie Savage reports that White House Counsel Neil “Eggleston argued that showing that [OLC Chief Karl] Thompson had said some steps they had considered would not be lawful would show that they had really thought about it and obeyed legal limits.”[1] Lucas Guttentag, who was on leave from Stanford Law School as Senior Counsel to U.S. Citizen and Immigration Services,[2] reportedly argued against memorializing this memo, “saying it would preclude the executive branch from having the option of choosing to help [the parents of DACA beneficiaries] in the future.”[3] Guttentag, in line with Motomura and others, “believed that [OLC] had drawn the line too narrowly by focusing unduly on whether someone had a child who is an American citizen, to the exclusion of other grounds in the law that an immigrant could use to gain legal status.”[4] But the White House rejected this scholarly consensus. As Savage recounts, Eggleston said “[t]his is the high-water mark. There is never going to be anything more after this.”[5] By putting the opinion into writing, the Obama Administration was setting in stone limits on the scope of immigration enforcement, based on the laws of Congress, that repudiated the capacious understandings advanced by the professoriate. This approach fits in with the modus operandi of the Obama Presidency with respect to executive power—rather than defining a broad conception of Article II, the administration’s lawyers determined that a specific exercise of executive power is appropriate under “certain circumstances,” implicitly suggesting that it would not be appropriate in all other circumstances.[6]

I welcome any thoughts or comments on the essay.

The Yale Journal asked Judge Richard Posner to re-review William Eskridge’s 1996 Book, The Case for Same-Sex Marriage. In his initial review in 1997, Posner rejected the right to same-sex marriage as a constitutional matter. Seventeen years later, Posner wrote the 7th Circuit’s decision in Baskin v. Bogan, invalidating the marriage laws of Indiana and Wisconsin. What happened in those intervening 17 years? Posner’s essay discusses his personal evolution, and the evolution of the United States. As alway, Judge Posner’s candor, and willingness to say where he erred, is admirable. But his discussion–and indeed rejection–of constitutional law is far less admirable, in light of his reliance on constitutional law to invalidate the marriage laws.

In the re-review, Posner echoed comments he made earlier this month at Loyola Law School in Chicago, about how the text of the Constitution is largely irrelevant.

My same-sex marriage case, Baskin v. Bogan,31 invalidating as I said earlier the Indiana and Wisconsin prohibitions of same-sex marriage, was argued in August 2014 and decided in September, just months before Obergefell. By the summer of 2014, the tide was running strongly in favor of invalidating such prohibitions, although it was not certain that the Supreme Court would go with the tide. I do think the change in public opinion was decisive for all the courts that ruled in favor of creating a constitutional right to same-sex marriage. Law is not a science, and judges are not calculating machines. Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.

One would think then, that Posner’s decision in Bogan would be bereft of any citations to those “old, cryptic, or vague” provisions of the Constitution, including the 14th Amendment. But that is not the case, as the opinion is grounded in the 14th Amendment’s equal protection clause. Here are a few of the key sentences from the decision:

In light of the foregoing analysis it is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection. …

A degree of arbitrariness is inherent in government regulation, but when there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws. …

If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving. …

Yet withholding the term “marriage” would be considered deeply offensive, and, having no justification other than bigotry, would be invalidated as a denial of equal protection.

Why did Posner base his decision on a parchment barrier whose relevance is “nonsense”? Because, by his own admission, he has no problem looking to text and history after he has made up his mind of how he is going to rule. As he said at Loyola:

The time to look at precedent, statutory text, legislative history, that’s after you have some sense of what is the best decision for today. Then you ask whether it is blocked by something that happened in the past. That’s all I have to say.

If the 14th Amendment is “old, cryptic, or vague,” it can’t conceivably block whatever the “best decision for today” is, including a right to same-sex marriage.

But wouldn’t it be more forthright if Posner eschewed the anchor of “equal protection,” and instead wrote that marriage laws simply were not  “sensible”? By his own admission, that is the correct test of constitutional analysis:

I think we can forget about the 18th century, much of the text. We ask with respect to contemporary constitutional issues, ask what is a sensible response.

At bottom, Posner candidly rejects any fidelity to the text of the Constitution. That invariably includes, of course, the parchment barrier that allows him to append the honorific “Judge” to his name. Yes, Richard Posner’s powers derive not from his boundless intellect, but from the bounds of Article III. Four aspects of the Constitution are particularly salient.

First, what is the “judicial power”? Is that phrase not “vague”? Marbury v. Madison is not self-evident. Does the text in any manner suggest that unelected judges can invalidate the laws enacted by the states, and that have been in existence for millennia? Is that a “sensible” reading of a “vague” provision of the Constitution?

Second, how long can these judges serve? Posner explained that the 7th Amendment’s $20 amount-in-controversy requirement should not be enforced because it is “absurd” in light of inflation: $20 means something very different in 1789 and 2015.

There are things that are in the text of the Constitution that are absurd. One is the idea that if the matter in controversy is at least $20, you have the right to a jury trial. That is absurd. $20 in the 18th century meant something very different than in the 21st century. What the Supreme Court should say when people bring jury cases for $20 is that provision is archaic and will not be enforced.

Know what else is “absurd” two centuries later? That a provision guaranteeing life-tenure when the average lifespan was about 40 should also guarantee life-tenure when the average lifespan is over 80. No other state, or western nation for that matter, creates a permanent sinecure for all-powerful jurists.  A more “sensible” provision would be to limit judges to specific terms, or impose a mandatory retirement age. At the margins, we may disagree on what that term ought to be. Maybe some say 15 years, some say 25 years, or retirement at 75, but certainly there is a “sensible number” to be chosen. But in any case, 30 years is far too long. That stretches across five presidencies. Judge Posner, 76-years-young, was confirmed in 1981, and is in his 34th year of service. By Judge Posner’s own reasoning, his commission, and license to invalidate democratically-enacted laws, should “not be enforced.”

Third, even if you think the Constitution is irrelevant, the oath that allows a judge to assume the office to interpret the Constitution is in the Constitution.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

Posner, a “judicial Officer” of the United States, took an oath to “support this Constitution.” Opinions he write are not binding by dint of their persuasiveness alone, but because he has the word “Judge” before his name. (And even then, the Justices above him are not so bound, because they hold a different office).

Finally, we should not forget that the Constitution doesn’t actually guarantee life tenure–only service during “good behaviour.” Personally admitting that being bound by that charter is “nonsense” seems flatly inconsistent with the very oath he took–indeed, an oath from the document that grants him the very power to be a judge. The $20 provision in the 7th Amendment is clear as day. If $20 doesn’t mean $20, then “good behaviour” can’t really mean “good behaviour.” Maybe, at a minimum, it means trying your best to follow the Constitution, not ruling however you think is “sensible.”

I could go on and on, but you get the point. I admire Judge Posner’s candor about rejecting the Constitution as a binding document. As an academic theory, his pragmatism offers a powerful rejoinder to other formalistic theories. But he isn’t just writing as a scholar. He practices what he preaches, and strikes down laws on that basis. If he truly believes what he believes, then he ought not to use that same nonsensical Constitution as his license to invalidate democratically enacted laws. You can’t have your Constitution, and eat it too.