Month: February 2017

Two Josh Blackmans Check Into the Same Marriott Hotel

On Wednesday, I mobile-checked into a Marriott property in Washington, D.C. for a one-night stay. When I arrived, I showed the clerk my ID. He gave me a room key, thanking me for my two-night stay. Confused, I told him my stay was only for one night. I checked the confirmation email, and it was indeed for one night. Then there was a moment of confusion.

The clerk told me that someone else named Josh Blackman, also from Texas (Dallas) had checked into the same hotel earlier that night. A different clerk inadvertently admitted him under my reservation! If I had to guess, the clerk saw a Texas driver’s license, and didn’t check the address. However, my Dallas Doppelgänger indeed booked a two-night stay, while I reserved a one-night stay.

After we settled the confusion, the clerk booked me under a new reservation (at a lower rate), and to apologize for the confusion, upgraded my room. So in the end, it all turned out well. I’ll report back if I receive Josh #2s points.

And no, contrary to some Twitter talk, I do not have a clone. I do want to figure out who this person is!

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Justice Sotomayor Errs on “Basic Constitutional Principles”

Justice Sotomayor’s dissent in Arthur v. Dunn, a capital case from Alabama, chides the Eleventh Circuit for “contraven[ing] basic constitutional principles.”

Even more troubling, by conditioning federal constitutional rights on the operation of state statutes, the deci- sion below contravenes basic constitutional principles.

Alas, in stating those “basic constitutional principles,” Justice Sotomayor herself erred. She wrote (with my emphases added):

And for more than two centuries it has been axiomatic that this Court—not state courts or legislatures—is the final arbiter of the Federal Constitution. See Marbury v. Madison, 1 Cranch 137, 177 (1803). Acting within our exclusive “province and duty” to “say what the law is,” ibid., we have interpreted the Eighth Amendment to entitle prisoners to relief when they succeed in proving that a State’s chosen method of execution poses a substantial risk of severe pain and that a constitutional alternative is “known and available,” Glossip, 576 U. S., at ___–___ (slip op., at 1–2).

First, Marbury did not asssert the Supreme Court is the “final arbiter” of the Constitution, nor did it say that the power to interpret the Constitution was “exclusive” to the Supreme Court. The penultimate sentence of Marbury states a contrary rule:

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

All “departments” of the government are bound by the Constitution, and each official takes an oath “to support this Constitution.” The former does not have a monopoly on interpreting the meaning of the Constitution. Rather, all officers that take an oath to “support this Constitution,” and have the authority to determine its meaning. This view of shared supremacy is commonly referred to as “departmentalism.” As a matter of practice, members of the executive branch, the legislative branch, and the states, consistently make judgments about what is, and is not constitutional, without ever seeking a judicial declaration. Only the controversial or contested questions are submitted for resolution before a state or federal tribunal—and only the rarest cases are elevated to the Supreme Court itself. This may come as a surprise to most law students—who do little except read cases—but the overwhelming majority of constitutional law is developed outside the friendly confines of Article III.

The case Justice Sotomayor was thinking of, that established the norm of judicial supremacy, was not Marbury v. Madison, but Cooper v. Aaron, which stated:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.”

This has not been the rule for two centuries, but for about six decades (despite the Cooper Court’s unpersuasive effort to recast Marbury). Under Cooper, indeed, the Supreme Court is the “final” expositor of the Constitution, but we should not pretend this principle flows from Chief Justice Marshall.

In any event, Justice Sotomayor is not alone. Justice Breyer made a similar error in DIRECTV, Inc. v. Imburgia, in which he wrote:

The Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it. U. S. Const., Art. VI, cl. 2 (“[T]he Judges in every State shall be bound” by “the Laws of the United States”).

It is certainly true that the FAA is the “supreme law of the land,” but it does not necessarily follow from the Supremacy Clause by itself that Concepcion is–although it is certainly “an authoritative interpretation of that Act.” Here too, the correct citation is Cooper v. Aaron, not the Supremacy Clause, nor Marbury itself.

For those who are interested, I am working on an article titled The Irrepressible Myth of Cooper v. Aaron. I’ve pulled from the archives all of papers from the Justices that worked on this case, and will trace the drafting of that remarkable opinion, which was signed by all nine Justices. This case is extremely misunderstood–perhaps why the Justices would rather mistakenly cite Marbury, rather than reaffirm Cooper.

Finally, another quip: Marbury said nothing about state courts or state legislatures. Martin v. Hunter’s Lessee established the proposition that the Supreme Court can review judgments from state supreme courts. At the time Marbury was decided, this was admittedly an open question. This is not “axiomatic.”

H/T @Greg651 for drawing this to my attention.

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Due Process and Expedited Removal in the Interior: Part I

President Trump’s January 27 executive order, which denied entry to nationals of certain country, has attracted (by far) the most attention of his various actions. But his new policies to expedite the removal of aliens who have already entered the United States will have a far, far greater impact.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a new process known as “expedited removal,” which permits the government to remove certain aliens “without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.” This procedure applies to aliens who arrive at the border (including an airport) and are deemed inadmissible–for example, an agent determines that their paperwork is fraudulent, or even if it is not fraudulent, the agent believes that false answers were provided to oral questions. The application of “expedited removal” at the border has raised serious due process concerns, though, for reasons I’v written about over the past few weeks, traditionally courts do not scrutinize the rights of aliens (other than green-card holders) who have not yet entered the United States.

However, the “expedited removal” procedure does not apply only at the borders. 8 U.S.C. 1225(b)(1)(A) (iii)(II) subjects to “expedited removal” an alien who entered the United States without inspection (usually by illegally crossing the border) and who has not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” As written, this provision is extremely broad, and has no geographical locus for this class of aliens.

Through a series of rulemakings, the Bush 43 administration interpreted that provision. In 2002, the Immigration and Naturalization Service announced that it would place in “expedited removal proceedings certain aliens who arrive in the United States by sea, either by boat or other means, who are not admitted or paroled, and who have not been physically present in the United States continuously for the two-year period prior to the determination of inadmissibility under this Notice.” (This notice contained an exception for Cubans, under the so-called “Wet-Foot/Dry-Foot” policy.)  Two years later, the Department of Homeland Security expanded its interpretation of 1225(b), to place in expedited removal aliens deemed “inadmissible” who “who are encountered by an immigration officer within 100 air miles of the U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the fourteen-day (14-day) period immediately prior to the date of encounter.” This policy, which focused primarily on border-crossers–hence the 100-mile radius–was crafted to “deal more effectively with the large volume of persons seeking illegal entry.” (Here too there was an exception for Cubans, citing the relationship between our two governments).

Unlike expedited removals at the border, where due process rights do not attach to aliens, once inside the United States, the due process clause applies. There has been a longstanding debate among immigration law professors about whether this provision violates the 5th Amendment. (Gerald Neuman wrote in the Columbia Law Review that this regime, especially after Boumediene, likely violates the Due Process as well as the Suspension Clause). But as the Court’s recent arguments in Hernandez v. Mesa suggest, constitutional rights are often in a nebulous place at or near the border. Indeed, under 8 U.S.C. s. 1357, federal agents can conduct warrantless searches “within a reasonable distance from any external boundary of the United States.” The government has interpreted this “reasonable distance” to be 100 miles. In Almeda-Sanchez v. United States, for example, the Court upheld a warrantless search 25-miles from the Mexican border. The warrantless search in United States v. Martinez-Fuerte was 66 miles from the Mexican border.

DHS’s new policy, however, goes far past the 100-mile border radius, and pushes the jurisdiction to the statutory limit. Any alien found in the interior is subject to expedited removal if he has “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” This new policy will be published in the Federal Register.

No doubt, there will be challenges to this regime. My first thought concerned possible APA challenges–specifically, was the decision to waive the 30-day comment period proper? Here, President Obama provides a defense. Last month, however, Secretary Johnson eliminated the exception for expedited removal for Cuban nationals encountered on U.S. soil. DHS put this regulation into effect immediately, finding that “good cause” exists to suspend the 30-day notice and comment process. “Delaying the implementation of this notice to allow public notice and comment would be impracticable and contrary to the public interest,” the notice stated.

Second, there may be challenges to the Secretary’s authority to designate such a wide swath of aliens subject to expedited removal. Here too, the Cuba notice provides support for DHS.

Congress explicitly authorized the Secretary to designate categories of aliens to whom expedited removal proceedings may be applied, and made clear that “[s]uch designation shall be in the sole and unreviewable discretion of the Secretary and may be modified at any time.” Section 235(b)(1)(A)(iii)(I) of the Act, 8 U.S.C. 1225(b)(1)(A)(iii)(I).

The strongest challenge concerns the Due Process Clause. Jill Family writes that these aliens are subject to the full panoply of the Due Process Clause, and cannot be removed in this cursory fashion without any hearing. Peter Margulies adds that unlike aliens found near the border, those within the interior–for as long as two years–will have developer stronger ties to the United States. Under Matthews v. Eldridge, such aliens must be afforded more process prior to removal. Peter also notes that there are potential suspension clause concerns.

I will revisit this topic after I’ve reviewed the notice in the Federal Register.

Update: As Ben Winograd pointed out on Twitter, the actual DHS memo did not indicate how far the policy would go–rather I was responding to reports that the agency would push their authority to the statutory maximum. This was why I ended the post on a tentative note. In any event, I will wait till the Federal Register notice is published to write Part II in yet another series on ongoing developments in immigration law.

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ConLaw Class 12 – The Enforcement Powers of the 14th Amendment

Class 12 – 2/21/17

The Enforcement Powers of the 14th Amendment

  • Popular Sovereignty v. State Sovereignty (65-66)
  • Chisolm v. Georgia (66-78).
  • 11th Amendment (78, 379)
  • Hans v. Louisiana (380 – 383)
  • Seminole Tribe of Florida v. Florida (383 – 394)
  • City of Boerne v. Flores (408 – 417).
  • United States v. Morrison (418 – 420).

The lecture notes are here.

Chisolm v. Georgia

The Court delivered its decision in Chisolm seritatim, meaning that each of the five Justices wrote a separate opinion.


Justice James Iredell


Justice John Blair


Justice James Wilson


Justice James Cushing


Chief Justice John Jay

Here are news clippings from the Columbian Centinel, a newspaper in Boston, from March 13, 1973.

Seminole Tribe of Florida v. Florida

City of Boerne v. Flores

Here are photographs of St. Peter the Apostle Church in Boerne, Texas, the subject of City of Boerne v. Flores. I suppose this church makes an exception to the “Though Shalt Not Kill” Commandment for the Religious Freedoms Restoration Act, which met its constitutional demise within the hallowed walls of this house of worship.

These photographs are courtesy of Hanah Volokh.

United States v. Morrison

This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.




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Prop1 Class 12 – Future Interests I: Interests in Transferor and Transferrees

Class 12 – 2/21/17

Future Interests I: Interests in Transferor and Transferrees

  • Introduction, 275-276
  • Future Interests in the Transferor, 277-279
  • Future Interests in the Transferees, 280-283
  • Problems, 283 (1-4)

(Read these pages very, very carefully).

The lectures notes are here.

Example 1. O conveys Blackacre “to A for life.” 0 has a reversion in fee simple that is certain to become possessory. At A’s death, either 0 or O’s successors in interest will be entitled to possession


Example 2. 0 conveys Whiteacre “to A for life, then to B and her heirs if B survives A. O has a reversion in fee simple that is not certain to become possessory. If B dies before A, O will be entitled to possession at A’s death. On the other hand, if A dies before B, O’s reversion is divested on A’s death and will never become possessory.


O conveys Blackacre “to Hartford School Board so long as used for school purposes.”


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Upcoming Events in D.C., Tallahassee, Montgomery, Manhattan, Philadelphia, Orlando, St. Paul, and Elsewhere

Somewhat fortuitously, my schedule was fairly light on travel over the past month, which allowed me to handle the onslaught of breaking legal news in the nascent Trump Administration. My calendar for the Spring Semester is just about booked solid, so if you’d like to invite me, please drop me a line.

Here are my scheduled upcoming events:

  • The Constitutionality of President Trump’s Executive Order on Immigration, Faulkner Federalist Society Chapter (Feb. 27, 2017).
  • National Constitution Center event on Federalism, held at Georgetown University Law Center (Feb. 23, 2017).

  • Model Rule 8.4 and the First Amendment Cardozo University Federalist Society Chapter (Mar. 6, 2017).
  • The Future of the Affordable Care Act, National Constitution Center (Mar. 6, 2017).

  • Intellectual Diversity on the Law School Campus, Barry University Federalist Society Chapter in Orlando (Mar. 20, 2017).
  • Symposium on 5th Anniversary of NIFB v. Sebelius, St. Thomas Journal of Law & Public Policy (Mar. 31, 2017).
  • “Unraveled: Obamacare, Religious Liberty and Executive Power,” St. John’s Federalist Society Chapter (Apr. 10, 2017).
  • The Future of the Supreme Court, University of Massachusetts School of Law (April. 24, 2017).
  • “Unraveled: Obamacare, Religious Liberty and Executive Power,” Houston Federal Bar Association (May 25, 2017).

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Voluntary Cessation after the Executive Order on Immigration is Withdrawn

In a post last week, I discussed how even if President Trump replaced his enjoined executive order with a new one, the current litigation in the Western District would not necessarily be mooted. Under the “voluntary cessation” doctrine, courts can maintain jurisdiction over challenged conduct, even when a public official has stated that it will no longer engage in such conduct.

This hypothetical question will soon become real. The Wall Street Journal reported that the President will rescind the older executive order, and issue a new one–as soon as Tuesday!–with several key differences. First, the order will not deny entry for lawful permanent residents. (As I discuss in my essay on the case, the best reading of the statutory scheme is that 1182(f) does not apply to green-card holders; now they will be expressly excluded.). This modification will remove the strongest basis for relief for Washington, as LPRs have the closest connection to the United Second, and thus the strongest conceivable constitutional interests. The 9th Circuit’s discussion of due process rights for aliens with zero attachment to the United States was anemic.

Second, the order will eliminate the preference for religious minorities. This change will make the four-corners of the document less susceptible to an Establishment Clause or Equal Protection challenge (the two analyses are virtually identical). However, if the 9th Circuit follows through on its pretext dicta, nothing the President can ever do can forgive statements made by candidate Trump and surrogate Rudy Giuliani. The policy will forever be tinged by the allegation of animus. I find this conclusion really, really hard to sustain–especially if changes are made to the policy to make it even more neutral. Can it really be the case that everything President Trump does will forever be tainted in this sense?

Third, the new order will no longer scrap the Syrian refugee program, but instead impose a lowered admission ceiling of 50,000 for 2017. I’m not sure if this makes much of a difference from a constitutional perspective. Neither Washington nor the 9th Circuit mustered an iota of precedent to support the proposition that aspiring refugees have any liberty interests protected by the Due Process Clause. My reading of the caselaw is that refugees are here but for the grace of the United States, and that grace is purely discretionary. They do not even receive visas, which would allow them to raise a claim under 8 U.S.C. 1152. (Aliens who receive non-immigrant visas would be in a similar boat, though they may have some cognizable due process interests).

Fourth, WSJ hints at one more change that I alluded to in my essay:

The appellate court also criticized the order for lacking due process for those affected. Giving notice before it take effect could address that, at least in part.

In Kerry v. Din, a former civil servant for the Taliban was denied a visa pursuant to 8 U.S.C. § 1182(a)(3)(B), because he engaged “terrorist activities.” No further explanation was given. This, Justice Kennedy found in his concurring opinion, was all the process that is due.  With respect to the new executive order, all the process that is due is a notification that an alien was denied entry pursuant to the authority delegated by 8 U.S.C. 1182(f). That’s it. As I discuss in my essay:

There was not even the slightest hint in Din that aliens overseas are entitled, in the words of the Ninth Circuit’s panel, to “notice and a hearing prior to restricting” her “ability to travel. This holding is made up out of whole cloth. Even if the aliens covered by the Executive Order are protected by the Due Process Cause—a striking proposition with respect to refugees in particular, who have no connection to the United States—then there is no conceivable requirement that they be afforded a hearing before being denied entry. A consular stamp that says “denied under § 1182(f)” will provide all the process that is due. The end result of the court finding that a due process right attaches yields the same end result: the President can deny entry through a consular notification that the alien is barred by his proclamation under § 1182(f). Here, the panel opinion collapses under its own weight.

Immediately after the new order is issued, we will all need a crash course in the voluntary cessation doctrine. Unfortunately for those seeking clarity, the voluntary cessation doctrine is extremely pliable. The entry in Wright & Miller (13C Fed. Prac. & Proc. Juris. § 3533.7 (3d ed.)) on “discontinued official action” is nearly 40,000 words long. I will attempt to synthesize the doctrine here.

Under this doctrine, courts must make a prediction of whether “there has been complete discontinuance, whether effects continue after discontinuance, and whether there is any other reason that justifies decision and relief.” Here, “defendants continue to carry the burden of demonstrating that discontinuance has mooted the case.” However, unlike private defendants, “Courts are more likely to trust public defendants to honor a professed commitment to changed ways.” For example, the 5th Circuit observed in Sossamon v. Texas:

“[G]overnment actors * * * in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties. Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.” The defendants carried this “lighter burden.” The good-faith nature of the change was buttressed by the fact that it was adopted on a state-wide basis after the defendants had prevailed in the district court. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324-326 & n.14 (5th Cir. 2009), citing Wright, Miller & Cooper, cert. granted in part, 130 S. Ct. 3319, 176 L. Ed. 2d 1218 (2010).

But this presumption is not absolute. “The tendency to trust public officials is not complete, however, nor is it invoked automatically.” Some courts have rejected mootness claims where “the official defendants simply cannot be trusted to continue the patterns of behavior adopted in response to private challenge and judicial inquiry.” To this point, “Experience has proved that if public officials can be trusted more readily than private defendants, they cannot be trusted with the power to moot judicial proceedings simply by professing that they have mended their ways.” What truly complicates this case is that the parts of the challenged practice are abandoned, but other parts remain.

Further, due to the strange posture of the case, it isn’t even clear to me which court would apply this doctrine. Judge Robart has announced that because the Circuit Court treated his TRO as a preliminary injunction, the proceedings in the lower court are stayed. The Ninth Circuit also put its en banc proceedings on hold. The government stated that it would notify the 9th Circuit when a new executive order is entered. It is entirely conceivable for the en banc court to request supplemental briefing about how the new order affects the current injunction. It is entirely conceivable for the en banc court to hold that, under the doctrine of voluntary cessation, the case is not moot, and oral arguments can continue. No doubt, other jurisdictions will file suit in other circuits, thus germinating this issue up to SCOTUS. Thus, there may be an incentive to keep this case at the 9th Circuit, so to lead the pack.

Stay tuned.


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New Essay: “Self-Plagiarism”

Imagine my excitement when I received an invitation, out of the blue, to publish in the Harvard Law Review’s prestigious Supreme Court issue. At first, I worried it was a prank, and googled the senders to make sure they were actually editors. Everything checked out. Here was the pitch: I had exactly twenty-one days to deliver a 15,000 word draft analyzing the Supreme Court’s recent opinion in Zubik v. Burwell, and the pending decision in U.S. v. Texas. Fortunately, this task was not nearly as daunting as it may seem. “I’ve already completed my chapters about Zubik for my new book,” I replied to the editors, and added that “[i]t shouldn’t be too difficult to adapt the background I wrote about the case for a piece along the lines you suggested.” As for Texas, I had already written three law review articles about the case, and co-authored three amicus briefs for the litigation, so I had all of the basics ready to go. I reviewed the publication contract, including paragraph 5, which stated “You represent and warrant to the best of your knowledge and ability that your manuscript is original with you, provides appropriate credit to sources used by you . . . and does not in any other manner infringe upon the copyrights or other rights of any person.” I returned the signed contract, and began to write Gridlock, relying heavily on my prior works.

Everything moved smoothly through the first three rounds of review—there would be eight in total—until I received an unexpected email from the Review: “a number of excerpts from Gridlock appear to be substantially the same as material from” your book and articles. “We certainly understand that, particularly for some of the factual reporting,” the editor wrote, “there often just are not many ways to say the same thing.” Yet, “[t]he Review has a tradition of publishing unique scholarship, so while it’s perfectly fine to cite to and build from your prior work, we want to make sure the material in Gridlock is distinct from that work.” Thus began my crash course with a concept I had never before considered: “self-plagiarism.”

The editors and I were quickly confronted with a series of difficult ethical questions for which there were not clear answers. How much text could be quoted verbatim? How substantially must prior writings be rephrased? Did all analysis have to be novel to the Review? During this expedited process, I was struck by how little legal scholarship addressed these quandaries that most authors (myself included) took for granted. Fittingly, several of the specific questions we confronted were of first impression for the century-old institution. In fairly short order—the article was scheduled to go to press only a month later—we arrived at a series of compromises we could all agree to.

Through this essay, titled Self-Plagiarism, I hope to share these lessons, and use my publication experience to provide much-needed guidance to writers and editors alike about self-plagiarism.

Part I provides a brief overview of the legal, ethical, and professional implications of plagiarism. Part II introduces the counterintuitive concept of self-plagiarism, which occurs when an author reuses material from something he or she previously wrote. Self-plagiarism can manifest itself in three primary forms. Part III addresses so called “recycled text,” where an author copies sentences, paragraphs, or even pages, verbatim, from an earlier work. Consistent with guidance from other scholarly disciplines, as well as the fair use doctrine, small blocks of text can be quoted verbatim, so long as they are cited, and are reproduced only when necessary.

Part IV considers a second species of self-plagiarism, where the author substantially rephrases text from an earlier work. This approach is particularly well-suited for background material, which the editors dubbed “reporting,” where neither the reader nor the publication expects novelty. So long as the author signals to the reader the provenance of the rephrased prefatory text, this approach is permissible.

Part V focuses on an area where I did not agree with the editors, but acquiesced given the Review’s ultimate prerogative to publish. As distinguished from the “reporting,” which could be substantially rephrased, the editors insisted that all “arguments” be novel. Whatever de minimis benefit can be derived from offering entirely new analysis is substantially outweighed by the policy’s impediment to the iterative scholarly process. Professors who build up a body of work over time should not be expected to completely reinvent every wheel for each new published article. At bottom, there truly is nothing new under the sun.

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Upcoming DOJ Deadlines for US v. Texas, House of Rep. v. Burwell, and Zubik v. Burwell

In the waning days of the Obama Administration, three significant cases were put on hold, giving the Trump Administration an opportunity to weigh in. Those deadlines will occur over the next 10 days.

First, following the 4-4 affirmance in United States v. Texas, the case was remanded back to the Southern District of Texas. On November 18, Texas and the United States government filed a joint motion to stay the merits proceedings until Monday, February 20, 2017. Judge Hanen agreed.

To date, the President has shown that he is very sympathetic to DACA. But much to my surprise, DAPA has not been formally rescinded–an action that would have no immediate effects, because the policy had never gone into effect. Complicating this analysis is the fact that on Friday, DHS Secretrary Kelly released a memoranda concerning immigration enforcement. The policy expressly rescinds all Obama-era policies that conflict with President Trump’s executive order, except DAPA (2014)  and DACA (2012).

However, footnote 1 specifically states that the November 2014 DAPA memorandum “will be address in future guidance.”

If I had to guess, on Monday DOJ will simply ask far more time, in light of the fact that it announced that the DAPA memorandum “will be addressed in future guidance.” There in no sense litigating this issue further if the policy is on the chopping block. Texas will be all too happy to comply. It is unlikely that DHS will announce in a pleading to the court that it is rescinding the policy. That will likely come shortly. In theory at least, Judge Hanen should be willing to dismiss the case on the rescinding of the policy, though I could imagine a circumstance where he asks for a consent decree, whereby the government pledges not to enact a substantially similar policy again in the future. (To make this tangible, Washington would no doubt demand a similar stipulation before voluntarily dismissing its challenge to the executive order, under the likelihood that a similar order could be re-entered in the future).

Second, on December 5, 2016, the D.C. Circuit ordered that House of Representatives v. Burwell be held in abeyance until Tuesday, February 21, 2017. (HHS opposed the motion). The outcome of this case is far more uncertain. As I understand it, the cost-sharing reduction (CSR) payments are to be made on the first of each month. Had the Trump Administration not made the payments on February 1, I would have expected a press storm from the insurance companies, charging that government was trying to destroy Obamacare. There was nothing. Absolute silence in fact. The dog did not bark. This suggests that the payments were made.

Perhaps the Trump Administration, like the Obama Administration before it, has determined that appropriations law is flexible enough to support the payment of the cost-sharing reductions. If that is the case, then the case could a very strange turn. The Trump Justice Department could continue to defend the payments, stating that (1) the House does not have standing and (2)  the payments are lawful. This would create the unlikely scenario where House Republicans are challenging a Republican President in court! That would be something I did not anticipate.

A for more likely scenario is that HHS requests more time to reply, stating that legislative changes to the ACA are afoot. The House of Representatives, more than any other party, would be privy to those developments. There is no sense ruling on a massive separation of powers dispute when (through the reconciliation process) the relevant provision may be rescinded. Not to burst anyone’s bubble, but I expect both parties to request more time. The D.C. Circuit will be all too happy to oblige. And don’t forget the intervenors. They are still lingering, because the court denied their motion to intervene while the stay is in effect. If the stay is extended, the intervenors will likely grouse, but they are still stuck on the outside.

Third, following the remand in Zubik v. Burwell, in several courts of appeals, HHS requested to stay proceedings until Tuesday, February 28. This case is perhaps the most complicated of all three. HHS had requested information about possible ways to reconcile the religious liberty conflicts, while still providing “seamless” access to coverage. Despite receiving thousands of submissions, the Obama administration determined that there is “no feasible approach.”

The government has several conceivable options here. First, it could continue to litigate the case, arguing (as did the Obama administration), that there is no RFRA violation because the accommodation as drafted is the least restrictive alternative. This seems like the most unlikely scenario possible, as the Court’s opinion suggested that it was not the least restrictive alternative. If it was, there would not have been a vacatur-and-remand. Further complicating this posture is that Acting Solicitor General Noel Francisco argued Zubik, so he (and all of his Jones Day colleagues) would likely be walled off from this case as it presses forward.

Second, the government could tell the courts that it needs more time to propose a new rule that provides greater protection for religious freedom. No doubt, the courts of appeals would be all too happy not to hold off on resolving this case. But I suspect this route will give way to vigorous litigation from female employees at religious employers who stand to lose contraceptive coverage. They will no doubt attempt to  intervene. These arguments, I think, are unlikely to succeed. The Supreme Court remanded the case to determine if there was some other way to resolve the dispute. After extensive consideration, the Obama Administration determined that it could not be worked out. This paves the way for the government to attempt a new solution that places greater weight on protecting religious freedom, and which, concomitantly, and makes coverage less “seamless.” Of course, the notion of “seamless” coverage–that SG Verrilli focused on in his briefs–came not from the statute, but from Judge Pillard’s opinion for the D.C. Circuit in the Priests for Life litigation. The ACA is entirely silent about how religious liberty is to be accommodated, so here–especially in light of the Zubik stalemate–the government has latitude to try a new policy.

Third, there is something of a nuclear option. While the Obama administration published its several accommodations and exemptions in the Federal Register, seeking notice and comment, it took a shortcut at the outset: the government adopted the Institute of Medicine’s recommendations of what drugs constitute preventive care in a blog post from August 2011. Yes, literally, government by blog post. The decision to include all FDA-approved contraceptives through the “preventive care” mandate has never gone through the notice-and-comment process. This asterisk on the HHS blog was the only process given to adopt what “preventive care” insurers must offer for women, without additional copays.

Therefore it can be modified in the same ad hoc fashion. The government can simply write the new religious accommodation procedure into the same blog post: any employer with a bona fide religious objection, can seek an exemption from providing any FDA-approved contraceptives on its plan. Then, the government can provide the contraceptive coverage to affected employees through alternative channels. This latter approach could be used to exempt not only the religious non-profits, but also the religious for-profits (such as Hobby Lobby) that are still waiting in the wings.

There is a lot to watch out for over the next 10 days.

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New Essay in Texas Law Review See Also: “The 9th Circuit’s Contrived Comedy of Errors in Washington v. Trump”

On Thursday, February 9, the 9th Circuit filed its opinion in Washington v. Trump. Over the next 72-hours–while running back and forth between media hits–I authored a two-part series (Part I and II) on Lawfare (at the invitation of Jack Goldsmith) analyzing the contrived opinion. At the same time, I pitched the Texas Law Review’s online supplement, See Also, on publishing the two-part series into an essay. Remarkably, the editors agreed. In less than 72-hours, we transformed the two-part series into a draft essay. It is now posted in draft form at the Texas Law Review website, as well as on SSRN. Eight days from start to finish. I think this may be a new record.

Here is the abstract:

This essay offers an early critique of the Ninth Circuit’s decision in Washington v. Trump. Despite its well-meaning intentions, the per curiam opinion is, at bottom, a contrived comedy of errors. First, the court grossly erred by treating a temporary restraining order—that contained no reasoning—as a preliminary injunction. The panel’s insistence that emergency relief be provided is irreconcilable with its own conclusion that no such emergency exists. Second, the panel offered zero analysis of the underlying statutory scheme, which is exceedingly complex and intricate. While it is true that this approach would not resolve all claims, as Justice Jackson reminded us six decades ago, the conjunction or disjunction between Congress and the Presidency informs the exactness of judicial review. This timeless lesson was apparently lost on the panel, which, third, applied the strictest of scrutiny to assess whether the executive order was justified based on “a real risk” rather than alternative facts. Fourth, I analyze the panel’s refusal to narrow an overbroad injunction. Once again, a study of the underlying statutory scheme could have afforded a plausible method of saving part of the order, while excising the unconstitutional portions.

I will close by critiquing the decision’s treatment of two leading precedents. First, the panel distinguished away with gossamer threads Kleindienst v. Mandel, which for four decades established a presumption of non-reviewability for executive decisions concerning exclusion. Second, the court misread Justice Kennedy’s concurring opinion in Kerry v. Din to establish a principle that courts can assess the President’s policy decisions for “bad faith.” Kennedy’s opinion, like Mandel before it, did no such thing; rather, courts could look only at whether individual consular officers acted in good faith, not whether the policy behind that decision was in bad faith.

Personal sentiments about this egregious order should not shade a candid assessment of precedent and constitutional law. This opinion, which enjoins a policy I personally find deeply regrettable, is itself deeply regrettable.

I welcome any comments. Because this litigation is still in its infancy, I’m certain there will be many more opportunities to write about this issue. Even if the Executive Order is withdrawn, and a new one is issued in its stead, the issues discussed herein will remain extremely relevant.

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Water Rights and the Coase Theorem on Washington Farms

This morning, Marketplace aired a feature that discussed water shortages on Washington farms. Under riparian law in the state, farmers with “junior water rights” can purchase rights from “senior” holders. For some farmers who have “senior” rights, and low-yield crops (such as hay) it may be more profitable to sell their water than to farm their land.

Joe Cook, an environmental economist at the University of Washington, explained how a water market works:

“Some farmers would go to other farmers and say, ‘Hey, are you willing to let me use your water so I can water my vineyard, or my orchard, or a crop that I really can’t let go dry?’”

In other words, the water’s so valuable that farmers with low-value crops could choose to make money by selling their water instead of planting for a season. Right now, those farmers have little incentive to sell their water to other farmers, in part because there’s a complex legal process involved.

This dynamic is a perfect illustration of how the Coase Theorem is supposed to work. In the absence of transaction costs, parties will negotiate in such a way to yield the greatest aggregate benefit. In Washington a vineyard owner with junior rights, who creates profitable wines, can pay a hay farmer with senior rights (and low profits) to not farm, and instead relinquish his water supplies.

Why isn’t this being done now? As Coase would predict, the transaction costs imposed by regulations are too high. As a result, the government is looking to make it easier to exchange water rights:

That’s what Washington officials are trying to fix. Legislators are still working to secure final funding for the plan, but once it’s in place, it could serve as a model for how to make sure water flows toward the highest-value agriculture.

What a perfect articulation of the Coase Theorem. Markets!

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The Difference Between a Bill and a Resolution

Today, President Trump signed H.J.Res.38. The Hill reported in a headline, “Trump signs bill undoing Obama coal mining rule.”
Trump tweeted that headline:

Alas, he did not sign a bill. As the abbreviation H.J.Res. suggests, it was a House Joint Resolution. What is the difference between a bill and a resolution? A bill becomes law when it is passed by both houses, and signed by the President. A resolution is something short of a bill, but must be passed by both houses, and be signed by the President, to take legal effect.

Article I, Section 7, Clause 2 provides the path for a bill to become a law:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

Article I, Section 7, Clause 3, provides a different definition for orders, resolutions, or votes, in general.

3: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Even though a Resolution does not become law, in the sense of the bill, it still must be presented to the President for his signature. My understanding is Clause 3 prevents Congress from trying to enact a law, by calling it something else, and not submitting it to the President. No dice.


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ConLaw Class 11 – The Reconstruction Amendments

Class 11 – 2/16/17

The Reconstruction Amendments

  • The Emancipation Proclamation (527 – 529)
  • The Adoption of the Thirteenth and Fourteenth Amendment (767 – 771)
  • Contracting the Privileges or Immunities Clause (771 – 772)
  • Slaughter-House Cases  (Field, J., dissenting) (779 – 786).
  • Bradwell v. Illinois (787  – 791)
  • The Civil Rights Cases (814 – 831).

The lecture notes are here.

The Slaughter-Houses Cases

Here is a wood-cutting of the New Orleans Slaughterhouse.


Bradwell v. Illinois

This is Myra Bradwell, who sought admission to the Illinois Bar, leading to the Supreme Court’s decision in Bradwell v. Illinois.




Bradwell would become the editor of the Chicago Legal News, the first legal publication in the United States edited by a woman. The publication launched in 1868. Here is the first issue.


The Library of Congress has a copy of the first volume of the Chicago Legal News, donated by Susan B. Anthony. Even cooler, it includes a hand-written note in Anthony’s hand, which alludes to Bradwell v. Illinois.

It reads:

The first legal paper edited by a woman – Myra Bradwell – This file is from 1868 & 1869 – It was Mrs. Bradwell whose right to be admitted to the Bar of Illinois was carried up to the United States Supreme Court.  Senator Matthew Carpenter made the argument for her.

Congressional Library
Washington DC

Susan B. Anthony
Rochester – N.Y-

Jan. 1.1905


The Civil Rights Cases

The Grand Opera House in New York City, formerly known as Pike’s Opera House, was located on the Northwestf Corner of 8th Avenue and 23rd Street, in Chelsea. It was was shut down in 1960.



Maguire’s Opera House, formerly known as San Francisco Hall, was a three-story theater on Washington Street between Kearny and Montgomery in San Francisco.


I was not able to find photographs of Nichol’s Inn in Jefferson City, MO, the Topeka Inn in Topeka, Kansas, or the Tennssee Parlor Car.

This is Justice John Marshall Harlan I, who authored the solo dissent in the Civil Rights Cases.


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Prop1 Class 11 – Estates III: Leasehold and Defeasible Estates

Class 11 – 2/16/17

Estates III: Leasehold and Defeasible Estates

  • Leasehold estates, 244
  • Defeasible Estates, 244-247
  • Mahrenholz v. County Board of School Trustees, 248-253
  • Notes, 253-256
  • Maeser School Crisis Over, 256-258
  • Mountain Brow Lodge No. 82 v.  Toscano, 258-263
  • Notes, 263-264
  • Review Problems 1-4, 272-273

The lectures notes are here.

This diagram represents the Fee Simple Defeasible, which comes with a Possibility or Reverter. For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action.


This diagram represents the Fee Simple Subject to Condition Subsequent, which comes with a Right of Re-Entry. For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land.


This diagram represents the Fee Simple subject to an executory interest, which comes with an executory interest, which is vested in a third person, instead of the grantor. For example, “O to “School board, but if it cease to use the land as a school, to the Library.”


This is the grant at issue in Mahrenholz:

“this land to be used for school purposes only; otherwise to revert to Grantors herein.”

And a related case from the Texas Supreme Court:  El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013)

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back. Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was going to buy the land back. “El Dorado’s letter further asked the City within ten days to acknowledge its obligations under the deed and to suggest an acceptable closing date.”

The Texas Supreme Court held in El Dorado’s favor that the deed restriction was a “right of reentry,” which is a conditional future interest, and “property” under Texas law. The court relied on the reasoning of Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629 (Tex. 1987), a case with similar facts which held that “a future interest in real property is compensable” under the Texas Constitution’s Takings Clause. Slip op. at 6-7. In Leeco, the deed provided that the property would automatically revert if the county did not use it as a park. The court rejected the city’s attempt to distinguish the future interest at issue in Leeco from El Dorado’s, holding that it made no difference that in Leeco the interest was self-executing, and El Dorado’s interest gave it the right to repurchase.

This is the school at issue in the article about the Maeser School.



Here is a picture of the Odd Fellows building:



This chapter of IOOF seems to be gone. Presumably the grantors heirs exercised their right of reentry.

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My Pro-Se Cert Petition Will Be At #SCOTUS Conference on Friday

In 2011, shortly after I moved to Louisville for my clerkship, I realized the tiny gym at my apartment complex would not suffice. Frustrated, I drove about a mile down Shelbyville Road to the Urban Active Gym, and signed up for a membership. Little did I realize that this spontaneous decision more than five years ago would one day give rise to my very own pro-se cert petition.  Ted Frank of the Center for Class Action Fairness, who first filed my objection many years ago,  discusses the important issues at stake in this case in the Washington Times.

The petition (16-364) will be considered at the conference on Friday. In light of amicus briefs filed by Arizona Attorney General (joined by sixteen other states), the Cato Institute, and Professor Lester Brickman., as well as the call for a response, I am optimistic. But, I realize the overwhelming odds are denial.

When you check the orders list on Tuesday (don’t forget President’s Day!), be sure to look for Blackman v. Gascho. All of the filings are available here.

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Breaking: Texas AG Files Amicus Brief in Support of Federal Government in Washington v. Trump

This morning, the Texas Attorney General filed an amicus brief in support of the federal government in Washington v. Trump. (I reviewed an embargoed copy). The brief echoes several points I made in two-part series on Lawfare (Part I and Part II).

First, citing Justice Jackson’s concurring opinion in Youngstown, the brief posits that we find ourselves in the first tier where the President has maximum authority, because he is acting pursuant to a direct delegation of authority.

The Order falls within the Executive Branch’s strongest area of authority—Youngstown’s first zone of executive action—because it draws support from not only the President’s own foreign-affairs and national-security powers, but also from Congress’s delegated authorization pursuant to its Article I powers over the admission of aliens into the country. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952) (Jackson, J., concurring). The Executive Order, especially given its national-security context, should thus enjoy “the strongest of presumptions and the widest latitude of judicial interpretation.” Id. at 637. After all, “[u]nlike the President and some designated Members of Congress, neither the Members of [the Supreme] Court nor most fed- eral judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Boumediene v. Bush, 553 U.S. 723, 797 (2008).

Second, the brief explains that the Executive Order falls well within the powers Congress delegated to the Executive, even though the panel could not be trifled to cite it.

The panel, however, did not even mention the President’s statutorily delegat- ed power to suspend the entry of aliens (8 U.S.C. § 1182(f)) or to revoke visas (§ 1201(i)). It therefore failed to recognize that the Executive Order falls within Youngstown’s first zone of executive action and should be accorded the strongest presumption of validity.

Third, the brief reads Din and Kerry in a similar fashion as I did, concluding that nonresident aliens have no constitutionality protected right to seek admission.

Rather than accord the Executive’s delegated national-security decision the strongest presumption of validity, the panel found an extraordinary extension of constitutional rights to nonresident aliens who are outside this country and attempting to enter the country. Amicus is aware of no case that extends constitutional rights in anything close to the degree that plaintiffs advocate. The Supreme Court has never held that the Fifth Amendment’s Due Process Clause or the First Amend- ment’s Establishment Clause confer rights on nonresident aliens who are in foreign territory clearly not under the sovereign control of the United States. Nonresident aliens abroad have no constitutional right to seek admission into the country; there- fore, no constitutional claims accrue from a suspension of those aliens’ ability to enter. And statutorily created visas—generally a threshold requirement for being able simply to apply for admission to the country—are inherently not an entitle- ment. Rather, they are granted and held on a permissive, discretionary basis. Con- gress expressly designed visas to be revocable by the Executive without even judi- cial review in all but one instance. 8 U.S.C. § 1201(i). Thus, entry into the coun- try—or revocation of a visa—does not implicate a constitutionally protected inter- est in receiving due process or equal “protection” of visa laws that themselves pro- vide for discretionary revocation.

Texas noted that the analysis would be different for LPRs, and the injunction should be narrowed to that group:

The analysis could be different for certain lawful permanent residents who are returning to the country from abroad, see Landon, 459 U.S. at 33-34, but the Executive Order does not apply to LPRs, see supra p. 5. Even if the Order did apply to LPRs, analysis of this issue as applied to LPRs could not possibly justify a facial in- junction that also applies to non-LPRs.

Fourth, the brief posits that no equal protection concerns are implicated by the Executive Order.

As a threshold matter, the nonresident aliens covered by the Executive Order have no constitutional equal-protection rights against the federal govern- ment. The equal-protection principle recognized by courts under the Fifth Amendment’s Due Process Clause applies to “person[s],” U.S. Const. amend V, “within the territorial jurisdiction,” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). But the Supreme Court has recognized a key distinction between aliens inside ver- sus outside the United States. See Zadvydas, 533 U.S. at 693. And the Court has “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” Verdugo-Urquidez, 494 U.S. at 269 (citing Eisentrager, 339 U.S. at 770).

Fifth, the brief contends that the Establishment Clause is not even triggered by the Executive Order.

Plaintiffs’ Establishment Clause argument fails because the Clause does not vest rights extraterritorially in nonresident aliens abroad—for many of the same reasons that due-process or equal-protection rights would not apply to such aliens. See supra p. 23. Amicus is aware of only one court of appeals case to apply Estab- lishment Clause protections extraterritorially in some fashion: Lamont v. Woods, 948 F.2d 825, 843 (2d Cir. 1991). But that case dealt with U.S. citizens’ ability to raise an Establishment Clause challenge to “the appropriation and expenditure of public funds by the United States for the construction, maintenance and operation of foreign religious schools.” Id. at 827.

Even if the Establishment Clause were so broad as to afford its protections to nonresident aliens abroad, there is no Establishment Clause violation here. The Executive Order is religion-neutral, and the Order is not a pretext for religious dis- crimination as explained above. See supra pp. 24-32. On its face, section 5(b) of the Order regarding refugee admission does not “give preference to Christian refugees while disadvantaging Muslim refugees.” TRO Mot. (D.E.3) 7. The Order’s direc- tives on the refugee program after it resumes, for instance, “could be invoked to give preferred refugee status to a Muslim individual in a country that is predomi- nantly Christian.” Louhghalam, 2017 WL 479779, at *5 (slip op. 13).

Finally, you may ask what precisely is Texas’s interest here? Security. And because the state is not able to control immigration enforcement, under Arizona v. U.S., it must rely on the federal government’s help:

Amicus curiae is the State of Texas.1 Like every other State in the Union, ami- cus has a significant interest in protecting its residents’ safety. But the State itself possesses no authority to set the terms and conditions of entry for aliens seeking to enter the United States, or to restrict the entry of such aliens for foreign-affairs, public-safety, or national-security reasons. Instead, the State relies on the federal Executive Branch to carry out that function, pursuant to the laws of Congress. See Arizona v. United States, 132 S. Ct. 2492, 2507 (2012). Congress has delegated to the Executive Branch significant authority to prohibit aliens from entering the country, and the challenged Executive Order is a lawful exercise of that authority. Plaintiffs’ lawsuit presents no basis to enjoin the Executive’s exercise of the power delegated to it by Congress.

The district court’s facial injunction and the panel’s stay decision are an intru- sion into the national-security, foreign-affairs, and immigration powers possessed by the Executive and delegated by Congress. The injunction is contrary to law, and it threatens amicus’s interests by keeping the federal government—under a statu- tory regime crafted by the States’ elected representatives in Congress—from hav- ing the latitude necessary to make policy judgments inherent in this country’s na- ture as a sovereign.

One may have thought that the powerful litigation shop built up by the Texas Attorney General would have nothing to do during the Trump Presidency. Not quite. I do think it is important to stress that Texas in no way challenges state standing and the scope of the nationwide injunction. (Shortsightedly, Washington challenged the scope of the nationwide injunction in Texas v. U.S,. but now relies on the same principle in its own case). The state benefited from both of these doctrines over the past 8 years. I wrote in National Review before the inauguration that conservative states should support liberal efforts to promote state standing and nationwide injunctions. “Precedents set during this period will, in the long run, entrench the separation of powers, and ultimately promote individual liberty.”

Disclosure: I engaged in some discussions with Texas about the legal issues in the case, but was not involved with the drafting of the brief, nor did I review a copy of it before today.

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DACA Recipient, Detained by ICE, Asserts 5th Amendment Violation for “Break[ing] the Promise Made to Him” Because of Grant of Lawful Presence

Daniel Ramirez was twice granted deferred action and employment authorization under DACA. On February 10, he was rounded up and detained by ICE. In a statement, the government said he was detained because he was a “self-admitted gang member.”

Most recently, in May 2016, his renewal stated: “Unless terminated, this decision to defer removal action will remain in effect for 2 years from the date of this notice.” A petition for a writ of habeas corpus on Ramirez’s behalf was filed, which argues that the detention violates the Fifth Amendment because it “breaks the promises made to him under the well-established framework of the DACA program.” The petition is signed by, among others, Ted Boutrous, Larry Tribe, and Erwin Chemerinsky. (The latter two have certainly been busy of late!).

The petition asserts that DACA creates a “reasonable expectation” that recipients will not be deported during the “specified period,” which creates a constitutionally protected interest.

In establishing and continuously operating the DACA program under a well-defined framework and highly specific criteria, the federal government created a reasonable expectation among DACA recipients that they will be able to live and work in the United States for a specified period without being subject to arrest and deportation based on their immigration status. This reasonable expectation creates constitutionally-protected liberty and property interests for DACA recipients in the benefits they enjoy under DACA: being able to live and work in the United States without fear of deportation, so long as they satisfy DACA’s requirements. See, e.g., Perry v. Sindermann, 408 U.S. 593, 601–03 (1972) (reliance on informal policies and practices may establish a legitimate claim of entitlement to a constitutionally-protected interest); see also Texas v. United States, 809 F.3d 134, 174 (2015), affirmed by an equally divided court, 136 S. Ct. 2271 (2016) (explaining that “DACA involve[s] issuing benefits” to certain applicants). And these benefits are entitled to constitutional protections no matter how they may characterized by DHS. See, e.g., Newman v. Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002) (“[T]he identification of property interests under constitutional law turns on the substance of the interest recognized, not the name given that interest by the state or other independent source.”) (internal quotations omitted). Accordingly, the federal government may not arbitrarily or capriciously deprive DACA recipients of these benefits, as they have here with Mr. Ramirez.

Specifically, the liberty interest is premised on the revocable promise made by President Obama’s administration:

Here, a legitimate claim of a protected property interest exists by virtue of the promise made by the United States government to Mr. Ramirez, and those similarly situated, to adhere to the strict framework set out by the DACA program and by virtue of granting him deferred action and work authorization. And, to the best of Mr. Ramirez’s knowledge, the federal government has kept that promise until now. Where, as here, an existing framework established by the government and individual’s reasonable expectations based on that framework give those individuals benefits that they would not otherwise have, a property right to those benefits exists.

Further, the petition asserts that prosecutorial discretion is in fact “constrained” by DACA.

While DACA is premised on the exercise of prosecutorial discretion, that discretion is necessarily limited and constrained by the rules and criteria that DACA is based on and by the decision to twice grant Mr. Ramirez deferred action and work authorization. These constraints on discretion further support Mr. Ramirez’s claim of a protected property interest here.

I have been making this point for more than two years. The argument that DACA was based on pure prosecutorial discretion was always a ruse. Why? Because the policy confers lawful presence, which was more than deferred action. Remarkably, and ironically, the petition favorably cites the 5th Circuit’s decision in U.S. v. Texas.

Indeed, “Deferred action . . . is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act—and state benefits—for example, driver’s licenses and unemployment insurance—that would not otherwise be available to illegal aliens.” See, e.g., Texas, 809 F.3d at 166.

I’ve seen it all. First Washington relied on the standing argument it once opposed to seek a nationwide injunction against Trump’s executive order. Now DACA supporters are relying on the exact characterization of DAPA that made it unlawful, to explain why DACA provides a judicially-enforceable right. Let me state that a different way. The 5th Circuit found that the conferral of lawful presence made the policy illegal. Now, the lawyers are relying on that conclusion to bootstrap a claim that DACA is now a constitutionally protected interest–albeit an illegal one.

To support the reliance interest, the petition cites DHS policy implementing DACA:

DHS policy provides that ICE officers who encounter individuals eligible for DACA “should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed in removal proceedings or removed from the United States.” See U.S. Dep’t of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 12, 2015) (emphasis added). Consistent with this directive, Mr. Ramirez—who unquestionably meets all of the criteria for DACA—should not have been arrested or detained, and he should not be placed in removal proceedings.

But doesn’t that beg the question? Isn’t the essence of “discretion” that it does not needed to be exercised in every case? But again, we always knew discretion was a ruse. This was a blanket policy, that line officers were required to implement as a rubber stamp. So much so, the petition argues that it violates procedural due process to arrest a DACA recipient! Not exercising the “discretion” in the policy is unconstitutional.

Respondents, having knowledge that Mr. Ramirez met the criteria for DACA and was granted deferred action under the program, violated Mr. Ramirez’s procedural due process rights by arresting and detaining him.

The brief also relies DACA’s hotline bling.

As a result, hundreds of thousands of individuals applied for, and were granted, deferred action pursuant to DACA. And to Petitioner’s knowledge, the federal government has, until now, lived up to their promise. He is aware of no DACA beneficiary being subject to removal proceedings unless they had violated the criteria for receiving DACA by committing a crime. Indeed, DHS even maintains a toll-free “Law Enforcement Support Center hotline” open 24 hours a day and seven days a week, that it says DACA holders should call if they are arrested and “believe that, in light of this policy, they should not have been apprehended or placed into removal proceedings.” ( In the past, DACA holders calling this number for this reason have been promptly released and not subject to removal. (Mr. Ramirez’s counsel called this hotline and was told that they could not help.)

In response, a magistrate judge ordered the government to answer several questions, one of which directly implicates DACA:

What is the basis for his detention, given that he has been granted deferred action under the Deferred Action for Childhood Arrivals program?

I expected this issue would arise but in a different context. Zach Price explained in an editorial that it may violate Due Process for DHS to use information provided by DACA-applicants in their removal proceedings. For a more thorough study, see Price’s article in the William & Mary Law Review, titled Reliance on Nonenforcement.

However, here we have a situation where a DACA-recipient may be subject to removal, but there is no indication the government is relying on any information provided during the application process.

There is one lingering issue here which was obviated by the Supreme Court’s 4-4 affirmance in United States v. Texas: DACA is illegal. DACA is even less defensible than DAPA, because at least with DAPA, the alien must have a close familial relationship with a U.S. citizen. For DACA, there is no need to have any relation with a U.S. Citizen. I discussed the legality of DACA in the Georgetown Law Journal Online:

First, DAPA beneficiaries at least have a close kinship with a citizen or LPR child. In contrast, DACA beneficiaries need not have any familial relationship with any citizen or lawful resident.119 Second, there have been active con- gressional attempts to defeat DACA, and the program remains controversial over two years after its institution, making it a weak basis for a claim of congressional acquies- cence in deferred action.120 This is especially true because DACA was based largely on a bill that was defeated in Congress and never became law.121

If in fact DACA is illegal, then the grant of deferred action was void ab abnitio, and no due process rights can attach.

I doubt this issue will be litigated, but it does afford an opportunity to revisit the constitutionality of DACA. I have no idea how the government will handle this case. President Trump, much to my surprise, has not terminated any of the deferred action grants. Though, I suspect that after learning that a DACA recipient is an accused gang member (who knows if it’s true?), there may be more of a push to revoke deferred action grants.

Update: Ted Boutrous weighs in on Twitter.

As my reply suggests, the 5th Circuit found that DAPA was illegal because of the grant of lawful presence without any discretion. If the same framework applies to DACA, then any right Ramirez can assert is void ab abnitio. Further, OLC only upheld DACA to the extent that there was discretion. If indeed there is no discretion, such that it violates due process to remove Mr. Ramirez, then DACA cannot be lawful. Finally, the DACA memo did not discuss lawful presence; the DAPA memo did. It is unclear why this concept even applies. In any event, let’s not forget that Solicitor General Verrilli said you could strike out the “lawful presence” portion of DAPA, and it would operate in the same fashion.

Update: In further exchanges, I note that the source of the authority for “lawful presence” is found in the USCIS FAQ. Literally, government by blog post. As I discuss in my article by that title, D.D.C. held that an FAQ cannot be the source of legal authority.

As for Ted’s promise to “deploy” me, I’ll pass.

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The Ninth Circuit’s Contrived Comedy of Errors in Washington v. Trump: Part II

Cross-Posted at Lawfare

In Part I of this series, I discussed three critical errors in the Ninth Circuit’s decision in Washington v. Trump. First, the court grossly erred by treating a temporary restraining order—that contained no reasoning—as a preliminary injunction. Second, the panel offered zero analysis of the underlying statutory scheme, which is exceedingly complex and which, more importantly, informs the appropriate level of scrutiny. Third, even where Congress delegated its plenary powers to the President, thereby augmenting the executive’s inherent authority over national security, the panel still applied the strictest of scrutiny.

In Part II, below, I analyze the panel’s refusal to narrow an overbroad injunction. Once again, a study of the underlying statutory scheme could have afforded a plausible method of saving part of the order, while excising the unconstitutional portions. Next, I will critique the decision’s treatment of two leading precedents. First, the panel distinguished away with gossamer threads Kleindienst v. Mandel, which for four decades established a presumption of non-reviewability for executive decisions concerning exclusion. Second, the court misread Justice Kennedy’s concurring opinion in Kerry v. Din to establish a principle that courts can assess the President’s policy decisions for “bad faith.” Kennedy’s opinion, like Mandel before it, did no such thing; rather, courts could look only at whether individual consular officers acted in good faith, not whether the policy behind that decision was in bad faith.

As I noted yesterday, personal sentiments about this egregious order should not shade a candid assessment of precedent and constitutional law. This opinion, which enjoins a policy I personally find deeply regrettable, is itself deeply regrettable.


Entry and Admission for Lawful Permanent Residents

While Judge Robart’s injunction was narrowly reasoned, it was broadly applied. First, it enjoined the enforcement of Section 3(c) of President Trump’s January 27 executive order, which “suspend[ed] entry into the United States, as immigrants and nonimmigrants, of such persons [from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen] for 90 days.” Second, it enjoined the enforcement of Section 5(a) of the order, which immediately suspended the Refugee Admissions Program for 120 days. Third, the order enjoined Section 5(b), which would “prioritize refugee claims made by individuals on the basis of the religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Without any explanation, the court enjoined this provision even though it would not go into effect for nearly four months; the state of Washington conceded during the district court proceedings that this provision “does not necessarily require immediate injunction.” (Transcript 15).

Fourth, the order enjoined Section 5(c) which suspended the entry of “nationals of Syria as refugees” until the President determines that their entry is “consistent with the national interest.” Fifth, the court enjoined Section 5(e), which gave the government discretion to admit refugees “on a case-by-case basis” in cases where “the person is a religious minority in his country of nationality facing religious persecution.”

On its own terms, Judge Robart’s decision applied “on a nationwide basis . . . all United States borders and ports of entry.” (To support the nationwide injunction, Washington argued that immigration law had to be uniform; ironically, the state had opposed this exact argument in United States v. Texas). Judge Robart made clear that the temporary restraining order was indeed temporary, as the parties were asked to propose a briefing schedule for a preliminary injunction hearing three days later.

In the immediate aftermath of the executive order, there was widespread confusion about its effects. Many lawful permanent residents (LPRs)—that is, aliens with green cards—were denied entry to the United States. Due to their unique status, the applicability of the executive order to LPRs was not at once clear. As a threshold matter, under our immigration laws, nothing requires Congress to treat the broad class of “alien” in a single manner, nor can constitutional scrutiny be applied to the undifferentiated class of ‘aliens’ without assessing the characteristics of the discrete groups that comprise that class. Justice Stevens’s opinion for the Court in Matthews v. Diaz (1976) explains this framework:

The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country.

Lawful permanent residents are fully authorized to live permanently in the United States, though they are not citizens.  LPRs have a far stronger attachment to the United States than aliens seeking admission with visas, as the presumption is that members of the latter class intend to return to their country of origin. The courts have viewed the special status of LPRs to involve certain due process rights that other aliens lack. This issue is complicated by the fact that the Due Process Clause does not have a simple on/off switch for LPRs and other types of aliens. It can best be understood as applying along a continuum. LPRs at the far end of the continuum have the strongest conceivable due process rights when seeking admission. Aliens with a less permanent attachment to the United States have, on a sliding scale, far fewer rights. Refugees, for example, who lack any visa, receive all the process they are due when their application is denied.

As relevant to our discussion, LPRs that travel abroad and return are treated differently than other aliens. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), “entry,” an important term of art, was defined as “any coming of an alien into the United States, from a foreign port or place.” 8 U.S.C. § 1101(a)(13) (1988 ed.). Notwithstanding this general definition, LPRs were afforded a special quasi-constitutional protection, that was grounded in due process. As Justice Ginsburg explained for the Court in Vartelas v. Holder, under the old regime, an LPR “could travel abroad for brief periods without jeopardizing his resident alien status.” Quoting from the Court’s 1963 decision in Rosenberg v. Fleuti, Justice Ginsburg noted that LPRs “were not regarded as making an ‘entry’” unless their trip “meaningfully interrupt[ed] . . . the alien’s [U.S.] residence.” As a result, “[a]bsent such ‘disrupti[on]’ of the alien’s residency, the alien would not be ‘subject … to the consequences of an ‘entry’ into the country on his return.” In other words, an LPR who physically entered the United States did not legally “enter” the United States unless the departure interrupted her residency.

By way of the 1996 IIRIRA, in most regards, Congress replaced the concept of “entry” with that of “admission.” However, 8 U.S.C. § 1182(f) still permits the President to “suspend the entry” (not admissibility) of “any class of aliens as immigrants or nonimmigrants” that he deems “detrimental to the interests of the United States.” This provision, drafted in 1952, does not speak of “admission.” President Trump relied on this statute to support his January 27 executive order. The interplay between these “entry” and “admission” is, frankly, complicated, but critical to understanding the applicability of the executive order to LPRs.

Under current law, “admission” is generally defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Although the Board of Immigration Appeals determined that the Fleuti doctrine did “not survive the enactment of the IIRIRA as a judicial doctrine” with respect to this provision, elements of the case do survive: like under the old regime, not all aliens that gain physical admission to the United States have to seek “admission.” In the same section, Congress stated that an LPR “shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien” meets one of six factors. 8 U.S.C. § 1101(a)(13)(C)(i)-(vi). For example, if an LPR was “absent from the United States for a continuous period in excess of 180 days” (ii) or “engaged in illegal activity after having departed the United States” (iii), upon her return, she would have to seek admission. (In Re Collado-Munoz, 21 I. & N. Dec. 1061, 1066 (BIA 1998) (“returning lawful permanent resident who is described in sections 8 U.S.C. § 1101(a)(13)(C)(i)-(vi) of the Act shall be regarded as ‘seeking an admission’ into the United States.”)). The converse of this rule is that, as a general matter, an LPR that does not meet any of these six criteria does not seek admission upon her return to the United States.

These precedents raise a question about whether the President’s executive order, as drafted, applies to LPRs. Courts should conclude that it did not. Denying LPRs admission, without any hearing, would likely be unconstitutional. In Landon v. Plasencia, the court held that the Due Process Clause affords LPRs “a fair hearing when threatened with deportation.” 459 U.S. 21, 33-34 (1982). The avoidance canon would counsel reading the order in a way to exclude LPRs. Such a reading that harmonizes the pre- and post-IIRIRA precedents, is not only possible, but is persuasive. (This is an argument that the government could have, but did not adduce in its own defense).

Under this framework, if an LPR arrives at the border, and meets one of the six factors, he is seeking admission (under IIRIRA) and entry (under 1182(f)). If an LPR arrives at the border, and does not meet any of the six factors, he is not seeking admission (under IIRIRA), nor is he seeking entry (under 1182(f)). LPRs, who are not otherwise subject to the six inadmissibility factors, do not seek entry, and thus cannot be denied entry under 1182(f). The President’s executive order, therefore, which denies “entry” to classes of aliens, would not apply on its own terms to LPRs that are not seeking admission. This construction harmonizes the terms “entry” in 8 U.S.C. § 1182(f) and “admission” under IIRIRA, and avoids any constitutional defects with the order.

This construction is consistent with how the White House understands its own order. Three days after the order was signed, Donald F. McGahn II, Counsel to the President, announced that LPRs would not be subject to the policy. His memorandum sent to the acting Secretaries of State and Attorney General, as well as the Secretary of Homeland Security, stated, “to remove any confusion I now clarify that Sections 3(c) and 3(e) do not apply” to “the entry” of “lawful permanent residents.” McGahn instructed the secretaries to “immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.” The memorandum offered no analysis, but is consistent with this statutory framework. Regardless of the effect of Mr. McGahn’s memorandum—I agree with the court that it is in no way binding on the government—as a statutory matter, the Executive Order is best understood not to include LPRs.


Due Process for Non-Resident Aliens

Washington’s strongest claim to relief is based on the denial of entry of LPRs who reside in the state. To the extent that LPRs are not subject to the Executive Order—or if the order was redrawn to exclude LPRs—then the Ninth Circuit would have had to reach the far more difficult question about what constitutional rights attend aliens without a permanent residency status who are seeking admission. The court attempts to fudge this point, noting that “The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens,” where “these categories of aliens” applies (presumably) to all aliens affected by the Executive Order, including refugees. This burden is contrived. No court has ever held that aliens, with status less than LPRs, that are seeking entry, have due process rights. To the contrary, in Plasencia, the Court reaffirmed that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.”

The court, however, defends its due process holding as proper even if “lawful permanent residents were no longer part of this case.” (In the event the executive order is redrawn to exclude LPRs, this fallback argument becomes critical). First, it cites the “due process rights of other persons who are in the United States, even if unlawfully.” Once an alien is within the United States, the due process clause protects her. There is no dispute about this. However, the Executive Order only concerns entry of those outside the United States. (Arriving at an airport checkpoint does not mean you are on U.S. soil quiet yet). Second, citing Plasencia, the panel refers to the due process rights of “non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart.” This argument is misleading, because the referenced portion of Plasencia refers to a “permanent resident alien”—that is, an LPR. Third, the panel wrote without any analysis, “Refugees, see 8 U.S.C. § 1231 note 8.” As commenter Asher Steinberg noted on PrawfsBlawg, this citation is in error. Section 1231 does not have a “note 8.” More likely than not, a law clerk inadvertently copied and pasted from a common string cite for “8 U.S.C. § 1231 note; 8 C.F.R. §….” Regardless of what the court intended, there is zero precedent to the effect that the Due Process Clause affords refugees outside the United States a hearing, let alone any sort of judicial review.

The fourth predicate offered by the panel warrants the closest study:

and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).

A quick read of these twenty-two words would lead the reader to believe that the Supreme Court in 1972, as reiterated by a recent concurring and dissenting opinion, established the principle that U.S. citizens, or other American institutions, that have relationships with any alien overbroad, can assert the panoply of procedural due process rights on their behalf. This is not an accurate statement of law.


Kerry v. Din

Fauzia Din, a U.S. citizen, was married Kanishka Berashk, an Afghan national, and a former civil servant in the Taliban. Din applied for an immigrant visa for her husband. Berashk was interviewed at the U.S. embassy in Islamabad. The consular officer told him that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B), which deems inadmissible aliens who had engaged in “terrorist activities.” Berashk was not given any reason for the denial beyond the citation to 8 U.S.C. § 1182(a)(3)(B). Berashk himself had no cause of action. In light of the 1972 precedent of Kleindienst v. Mandel, the husband had “no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.” Instead, Din filed for mandamus on his behalf in the Northern District of California, and sought a “declaratory judgment that 8 U.S.C. § 1182(b)(2)-(3), which exempts the Government from providing notice to an alien found inadmissible under the terrorism bar, is unconstitutional as applied.” The Ninth Circuit, over the dissent of Judge Clifton, ruled for Din.

Before the Supreme Court, Din argued that the denial of the visa “without adequate explanation” in fact deprived her of due process of law, and “violated her constitutional rights.” The authorship of this case is complicated. Justice Scalia announced the judgment of the Court for the Chief and Justice Thomas. Justice Kennedy, joined by Justice Alito, concurred in judgment. In other words, there was no five-member majority. (At the time, I speculated that Justice Kennedy lost the majority opinion, as Justice Scalia’s concurring opinion fractured off votes). Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.

Justice Scalia’s opinion rejected Din’s claim. Because she could not assert a “life” or “property” interest, her claim depended on the recognition of a substantive due process right to be with her husband. To the surprise of no one, Justice Scalia concluded that “no such constitutional right” exists. “Only by diluting the meaning of a fundamental liberty interest and jettisoning our established jurisprudence,” he wrote, “could we conclude that the denial of Berashk’s visa application implicates any of Din’s fundamental liberty interests.” Critically, Scalia concluded, “The legal benefits afforded to marriages and the preferential treatment accorded to visa applicants with citizen relatives are insufficient to confer on Din a right that can be deprived only pursuant to procedural due process.” As a result, the due process claim fails, because “no process is due if one is not deprived of ‘life, liberty, or property.’”

Justice Breyer’s dissent, in contrast, contended that the denial of the visas amounted to a “deprivation of [Din’s] freedom to live together with her spouse in America.” The dissent stopped short of asserting a fundamental substantive due process right, but claims that the right is significant enough to warrant procedural due process.

Justice Kennedy’s opinion, as usual, was far more nuanced. His opinion recognized that “even assuming” Din has a protected liberty interest, the “notice she received regarding her husband’s visa denial satisfied due process.” Kennedy’s opinion stressed that the Court did not decide “whether a citizen has a protected liberty interest in the visa application of her alien spouse.” Contrast this assertion with the Ninth Circuit’s statement that “applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” The word “might” does not even come close to bearing the weight that the panel places on it. Justice Kennedy’s concurring opinion specifically stated that the Court did not reach the exact issue the Ninth Circuit said “might” prevail. Even then, Justice Kennedy found that the minimal notification given to Din (that her husband was inadmissible, without any further explanation) satisfied due process.


Kleindienst v. Mandel

Justice Kennedy’s narrow construction is reaffirmed by his recitation of Kleindienst v. Mandel, the other precedent relied on by the Ninth Circuit panel. The 1972 case involved college professors who invited Dr. Ernest Mandel, a self-professed Marxist, to speak at Stanford University. After Mandel was denied a visa—in light of his advocacy for “world communism”—he petitioned the Attorney General for a waiver. The Attorney General declined, citing the fact that Mandel had abused temporary visas on past trips to the United States. The Stanford professors brought suit, asserting a First Amendment right to “‘hear his views and engage him in a free and open academic exchange.’” The denial of the waiver, they asserted, violated this right. (Not a single word in Mandel explains why the professors suffered an Article III injury for purposes of standing; it is difficult to reconcile this decision with later cases such as Lujan and Clapper).

To the extent that U.S. citizens can assert due process rights on behalf of foreign nationals, Kennedy explains, the judicial inquiry is limited to whether the “Government had provided a ‘facially legitimate and bona fide’ reason for its action.” He added that “[o]nce this standard is met, “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against” the constitutional interests of citizens the visa denial might implicate.” Kennedy recognized that imposing a more exacting scrutiny would with respect to the government “‘refusing a [visa] to the particular applicant,’” would usurp “a nuanced and difficult decision Congress had ‘properly … placed in the hands of the Executive.’”  What process was due for Mandel? The disclosure of his “abuse of past visas” was sufficient, and that “ended [the Court’s] inquiry.”

Applying the Mandel framework to Din, Justice Kennedy concludes that the husband’s denial of a visa was “based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field.” The only process that was due was the “consular officer’s determination that Din’s husband was ineligible for a visa [as] controlled by specific statutory factors” of § 1182(a)(3)(B), which “establish[ed] specific criteria for determining terrorism-related inadmissibility.” In this case, the consular officer told the husband that he did not satisfy the statute’s requirements. In conclusion, Justice Kennedy wrote, the “Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.”


“Look Behind”

However, as usual, Justice Kennedy left some wiggle-room in his opinion. As he explained in his opinion in Din, in Mandel, the Attorney General had “nearly unbridled discretion” about issuing waivers. (Here, the word “nearly” may provide significant wiggle-room). In contrast, “§ 1182(a)(3)(B) specifies discrete factual predicates the consular officer must find to exist before denying a visa.” Here, the husband admitted that he worked for the Taliban government, “which, even if itself insufficient to support exclusion, provides at least a facial connection to terrorist activity.” In the general course, courts cannot “look behind” the denial of the visa for “additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed.” In other words, normally, courts are not permitted to inquire about what additional facts went into the officer’s denial of the visa, beyond what the statute requires. However, Justice Kennedy went beyond the holding of Mandel, finding that presumption is flipped upon an “affirmative showing of bad faith on the part of the consular officer.” In such cases, the courts can “look behind” the consular officer’s decision. This nebulous opinion raises four distinct questions which will influence the outcome of Washington v. Trump. Court watchers would be well-served to carefully divine what it can from these entrails.

First, is Din distinguishable from Washington because unlike § 1182(a)(3)(B), § 1182(f) does not provide specific “discrete factual predicates” to support the denial of entry? Under the latter provision, when the President determines that a class of aliens is “detrimental” to the interests of the United States, all members of that class are denied entry. During oral arguments, Judge Michelle Friedland asked Justice Department attorney August E. Flentje about this distinction. In both Mandel and Din, the judge began, there were “specific statutes by Congress that set forth specific criteria that were then applied factually.” Judge Friedland asked, “[the] President is not applying any specific criteria from Congress [with the executive order] is he?” Flentje replied that indeed the President was indeed applying the statutory factors set in § 1182(f).

We should not overstate how “specific” the statute in Din was. The husband was denied a visa because he “engaged in a terrorist activity.” That phrase is not defined and gives the government wide latitude to determine what was a “terrorist activity.” There is no requirement of a conviction or arrest; a mere inkling would suffice. A proclamation that an alien is “detrimental to the interests of the United States” is indeed more capacious, but as a matter of degree, not of kind. Rather than addressing this point, and arguing that § 1182(f) did not provide adequate guidance, the Ninth Circuit instead vaults over these meaty questions, and gerrymanders the precedents, which allows it to distinguish away Mandel with gossamer threads:

In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s promulgation of sweeping immigration policy.

The Attorney General’s decision in Mandel, like the decisions here, is based on “the application of a congressionally enumerated standard to the particular facts presented by that visa application.” Section 1182(f) permits the President to deem classes of aliens from certain countries as “detrimental” to the interests of the United States. Then, a consular official assesses “the particular facts presented by that visa application”—that is, whether an alien is a national of one of the seven nations specified by the proclamation. If so, entry is denied. The situations are factually analogous. The panel, however, disregards these important nuances in Mandel and Justice Kennedy’s concurring opinion. (The judges also charged the Justice Department with “omit[ting] portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority.” The acting solicitor general did no such thing.).

Second, is Din limited to individualized decisions made by consular officers, or does it apply to wide-ranging policies adopted by the President? Mr. Flientje made this point cogently during his arguments: “Whatever Din says about looking at consular decision making does not suggest we look behind national security determination made by the President, where the four corners of that determination are based on the congressional determination that the countries at issue are of concern.” (1:00:30). He may as well have been reading from Justice Kennedy’s opinion. At every step in the concurrence, the focus was not on the policy itself, but the individual officer who made the decision. Judge Friedland interrupted Flientje, and said, “I thought you were using Din and Mandel as main authority for unreviewability, and so now you are saying those are distinguishable. I’m a little confused if you are relying on those cases or not.” (1:01:00). Her comment is confusing. Flientje was specifically referring to the boundaries imposed by Kennedy’s concurring opinion. The DOJ lawyer replied, “We are definitely relying on them for the limits that Court’s review these types of issues.” Further, as I noted in my post yesterday, this question implicates the classic distinction between Londoner and Bi-Metallic. If due process now attends to broad policy statements, and not just individualized determinations, large swaths of the administrative state are now susceptible to attack.

Third, does the “bad faith” inquiry focus on the subjective motivations of the Executive branch at large, or is it confined to the individual consular official that acts in “bad faith?” Prior to Washington v. Trump, the courts interpreted Mandel to focus on the latter definition. For example, in Bustamante v. Mukasey, the Ninth Circuit defined bad faith under Mandel in terms of whether consular officer “did not in good faith believe the information he had.” In that case, the plaintiffs alleged that an applicant “never has been a drug trafficker,” as the officer concluded, but they could not demonstrate that the consular officer knew his report was false. “It is not enough to allege that the consular official’s information was incorrect,” the panle held. The “bad faith” analysis is limited to its application by an individual consular officer.

In Din, Justice Kennedy asserted that providing the husband with the minimal information it did was a “facially and legitimate bona fide reason” for denying the visa under § 1182(a)(3)(B). There was no assertion that the consular officer knew the information was false; indeed the information was conceded as accurate. With respect to Washington v. Trump, the denial of entry to an alien from one of the seven nations would likewise be “facially and legitimate bona fide reason,” specifically because it is done pursuant to § 1182(f). There is no allegation of a deviation from the policy in bad faith by a rogue consular officer. One could imagine a situation where, under the executive order, a consular official modifies a visa application, such that a Pakistani national is incorrectly listed as an Iranian national, and is thus denied entry. That would be an exercise of bad faith.  However, simply denying a visa because of a person’s nationality—an accurate fact—would not be in bad faith under the proclamation issued pursuant to § 1182(f) .

What is most perplexing about the Ninth Circuit’s opinion, which was joined by Judge Clifton, is that Judge Clifton dissented from the panel decision in Din. In that case, he stated succinctly that the “good faith” analysis was limited to the behavior of the “consular official.” (718 F.3d at 869). He said nothing about the subjective motivations of the policy maker. Rather, the denial was “based on law” and “the reason was at least “facially legitimate.” Specifically, Judge Clifton wrote, “The factual basis of the consular’s decision is not within our highly limited review.” In other words, the manner in which the consular official denied the visa, that is “based on law,” is beyond the ken of the courts. The Supreme Court ultimately vindicated his dissent!  It is unclear how Judge Clifton can reconcile his opinion in Din with the per curiam opinion in Washington v. Trump.

There is a fourth question that I suspect will ultimately control: even assuming that process is due, then what process is due? Justice Kennedy states, without equivocation, that the only process Din was due was the notification that her husband was denied a visa based on § 1182(a)(3)(B). Citing the importance of Congress’s control over national security concerns, Justice Kennedy concluded that “notice given was constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses.” Further, he noted, “respect for the political branches’ broad power over the creation and administration of the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad.” Regardless of what is divined from the entrails, this analysis portends the result in Washington: if an alien is denied entry, with a notice stating that the denial is due to § 1182(f), he is afforded all the process that he is due. No more is needed.

There was not even the slightest hint in Din that aliens overseas are entitled, in the words of the Ninth Circuit’s panel, to “notice and a hearing prior to restricting” her “ability to travel. This holding is made up out of whole cloth. Even if the aliens covered by the Executive Order are protected by the Due Process Cause—a striking proposition with respect to refugees in particular, who have no connection to the United States—then there is no conceivable requirement that they be afforded a hearing before being denied entry. A consular stamp that says “denied under § 1182(f)” will provide all the process that is due. The end result of the court finding that a due process right attaches yields the same end result: the President can deny entry through a consular notification that the alien is barred by his proclamation under § 1182(f). Here, the panel opinion collapses under its own weight.

Certainly, Justice Kennedy can change his mind on the next case, but we should not pretend that his Din concurring opinion provides a clear, inescapable route to invalidating the executive order.

This two-part series will be published later this week as Josh Blackman, The Ninth Circuit’s Contrived Comedy of Errors in Washington v. Trump, 95 Tex. L. Rev. See Also __ (forthcoming 2017). I will post a link on my blog,, when it is available for download.

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ConLaw Class 10 – The Affordable Care Act (“Obamacare”)

Class 10 – 2/14/17

The Affordable Care Act (“Obamacare”)

  • The Affordable Care Act (300 – 301)
  • NFIB v. Sebelius: Commerce, Necessary and Proper, and Taxing Power (301 – 334).
  • NFIB v. Sebelius: The Spending Power (334 – 341)
  • Excerpt (Foreword and Introduction) from Unprecedented: A Constitutional Challenge to Obamacare

The lecture notes are here.

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