Month: February 2017

What did President Trump say to Justice Kennedy?

During tonight’s Joint Address President Trump and Justice Kennedy exchanged several words. Can anyone figure out what they were saying?

As best as I can make out, Trump said:

Thank you. That’s very nice coming from you. Say hello to your boy. He’s a special guy. They love him in [New York]?

Who is Kennedy’s boy in New York? Anyone? We know that AMK invited Ivanka Trump as his guest. Perhaps there is some connection there?

 

Here is the video of Trump’s interaction with the Justices as he entered.

Justice Ginsburg joined Justices Alito and Thomas by staying at home. RBG attended all eight of President Obama’s joint addresses.

Update: Michelle Olsen offers a theory:

 

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Oral Arguments before the Texas Supreme Court in Pidgeon v. Turner, Same-Sex Couple Benefits Case

Today, I was a guest on Houston Public Radio to discuss the Texas Supreme Court’s upcoming oral argument in Pidgeon v. Turner. This is a very curious case. After a federal district court ruled in De Leon that Texas’s marriage amendment was unconstitutional, but before Obergefell was decided, the mayor of Houston decided to provide benefits to city employees in same-sex marriages. At the time, the district court’s decision was stayed by the 5th Circuit, so Texas’s marriage law was still in effect. Due to Texas’s quirky tax-payer standing laws, two residents of Houston brought suit against the Mayor, arguing that she was violating Texas’s marriage law.

The case bounced around the state courts of appeals, and finally a petition for review was filed with the Texas Supreme Court in September 2015–two months after Obergefell was decided. One year later, the petition for review was disposed. Justice Divine issued a dissent to the denial of the petition, arguing that the Court should have taken the case. After that dissent, there was a fairly aggressive public relations campaign to urge the Court to grant review. (Take a look at the docket entries from September 2016 through January 2017). Ultimately, the petition for rehearing was granted, and the case was set for oral argument tomorrow. Jonathan Mitchell, who formerly served as Texas Solicitor General, will be arguing for the taxpayers

During the segment on Houston Matters, I attempted to walk  the listeners through the fairly complicated procedural posture. I also discussed the merits of the case. Due to Justice Kennedy’s nebulous opinion in Obergefell, I don’t think this case is open-and-shut. There is certainly dicta in the opinion about “constellation of benefits,” but the core holding concerning marriage doesn’t necessarily mean any laws touching on marriage are invalid. Had the Court bothered to define a tier of scrutiny, maybe my answer would be different. But a discourse on dignity and love does not a judicial opinion make. The 9 Justices in Austin will have to make some law here, one way or the other, to resolve the case.

One issue that is worth a careful study is the impact of the 5th Circuit’s opinion of DeLeon on the Supreme Court of Texas’s decision. De Leon, unlike Obergefell, addressed the question of spousal benefits. However–and this may come as a surprise–5th Circuit decisions are not binding on the Texas Supreme Court. They are separate sovereign courts, each with a license to interpret the Constitution. We usually think of a Circuit Split as a divide between federal circuits, but it is quite feasible to have a split between the 5th Circuit and the Texas Supreme Court.

An amicus brief filed by Governor Abbott, Lieutenant Governor Patrick, and Attorney General Paxton makes this point:

The Court of Appeals also remanded for proceedings “consistent with . . . De Leon.” Parker, 477 S.W.3d at 355. This instruction was misleading, if not erroneous. The De Leon judgment is binding on the state officials who were defendants in that case and on their successors. See Ex parte Young, 209 U.S. 123 (1908) (holding that federal courts may enjoin state officials from vio- lating the federal constitution). But state courts are not enjoined by—and can- not be enjoined by—federal court orders. As the Supreme Court held in Ex parte Young: “An injunction against a state court would be a violation of the whole scheme of our government.” Id. at 162. While state courts should generally follow the U.S. Supreme Court’s judgments regarding the federal constitution, state courts are not bound by the judgment or the reasoning of the Fifth Circuit or the federal district court in De Leon. “In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.” Lockhart v. Fretwell, 506 U.S. 364, 375 (1993) (Thomas, J., concurring), cited by Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11 (1997). As one prominent law professor has explained: “Decisions of lower federal courts on issues of federal law are not binding precedents for a state court, which may properly view such precedents as no more persuasive than the views of the state courts of a differ- ent jurisdiction.” Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 HARV. L. REV. 1128, 1231 n.495 (1986); see also David L. Shapiro, State Courts and Federal Declaratory Judgments, 74 NW. U. L. REV. 759, 771 (1979) (“[Lower] federal courts are no more than coordinate with the state courts on issues of federal law.”).

This premise also came up in the post-Obergefell SSM litigation in Alabama. To grossly summarize, there were competing injunctions from the Alabama Supreme Court and the U.S. District Court for the Southern District of Alabama–the former ordered state probate judges to continue enforcing the state’s marriage law, the latter ordered the same probate judges to cease enforcing the law. Chief Justice Moore’s administrative order reminded the probate judges that the Alabama’s court was still in effect. Moore is currently being disciplined for, among other reasons, the premise that he ordered state judges to flout Obergefell. This is in error. Nothing in Obergefell addressed Alabama’s conflict between dueling injunctions from state and federal courts. (The case only concerned the marriage laws from Ohio, Michigan, Kentucky and Tennessee). Neither the Alabama Supreme Court nor the Southern District of Alabama is superior over the other with respect to interpreting the Constitution. As a practical matter, the threat of contempt and sanctions from the federal court is what keeps the probate judges in line. (See my piece with Howard Wasserman). What about the argument that Obergefell applied to all parties, everywhere? Stay tuned to my future piece, The Irrepressible Myth of Cooper v. Aaron.

You can listen to the segment here.

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Audio: The Constitutionality of the Travel Ban at the Faulkner Federalist Society

Yesterday, I spoke at the Faulkner University Federalist Society about the constitutionality of the travel ban, and more broadly the validity of the 9th Circuit’s decision in Washington v. Trump. This is a fairly concise summary of the topic, which I explain in more depth in the Texas Law Review See Also. I am still expecting a new order to drop anytime soon, and will report on it once it is released. You can listen here.

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ConLaw Class 14 – Equal Protection and Segregation

Class 14 – 2/28/17

Equal Protection and Segregation

  • Slavery, Citizenship, and the Due Process of Law (729 – 734)
  • Dred Scott v. Sandford (735 – 756).
  • Yick Wo v. Hopkins (831 – 835)
  • Plessy v. Ferguson (835 – 845).

The lecture notes are here.

Dred Sott v. Sandford

This is Chief Justice Roger Brooks Taney, the author of Dred Scott v. Sandford.

Roger_Taney_-_Healy

Lining the Great Hall of the Supreme Court are busts of the Chief Justices. Sandwiched between the great visages of John Marshall (the 4th Chief) and Salmon Chase (the 6th Chief) is the blank stare of Roger Brooke of Taney.

bust-taney

There is also a bust of Taney outside Frederick, Maryland City Hall. Vandals poured an entire bucket of red paint onto Taney’s bust. The vandalism came on the eve of a decision whether to remove the bust because some find it “offensive”:

bust-red

I could not find a full, color photo of the Leutze painting. Here is the best version I could find.

taney3

This is Dred Scott.

DredScott

This is a cover sheet by the Supreme Court, summarizing the lower court disposition from Missouri, filed on December 30, 1854.

doc_029_big

This is the Court’s judgment in Dred Scott, dated March 7, 1857, and seems to have been signed by Chief Justice Taney.

doc_029b_big

The Dred Scott decision found unconstitutional the Missouri Compromise of 1820, which designated all new states north of 36 degrees, 30 minutes (except Missouri) to be free states.

800px-Missouri_Compromise_Line.svg

This map illustrates the free and slaves states in America.

US_Slave_Free_1789-1861

Plessy v. Ferguson

We actually do not have any confirmed photographs of Homer Plessy (there are some floating on the internet, but we aren’t sure if they are really him). Here is his grave.

Kunhardt Homer Plessy Grave

photo 2

This is  Adolph Plessy’s Birth Certificate from Orleans Parish, from 1863.

Plessy Birth Certificate

plessy-sign

This is Judge John J. Ferguson.

ferguson

Little Rock Nine Visuals - Judge Ferguson

This is an obituary for Judge Ferguson. It makes no reference of his role in the case of Plessy v. Ferguson.

Ferguson - Obituary - Positive

Here is a newspaper account from the Times Pacayune, June 9, 1892, with the headline, ” snuff-colored descendant of Ham kicks agains the ‘Jim Crow’ law.”

Yesterday afternoon at 4:15 o’clock private detecting C.C. Cain arrested from the East Louisiana [Homer] Adolph Plessy, a light mulatto, and locked him up in the Fifth Precinct station on a charge of violating section 2o of act 111 of the statute of 1890 relative to separate coaches. Detective Cain made an affidavit this morning against Plessey [sic] in the Second Recorder’s Court.

Capt. Cain, speaking of the circumstances of the arrest, stated that he and the conductor had ordered both the man from the white coach into the one set apart for colored people.  The negro refused to leave the coach, saying that he had bought his ticket and was going to ride to Covington.

Capt. Cain here told him he would either have to retire to the other coach or go to jail; to which the negro responded that he would sooner go to jail than leave the car, and he was accordingly arrested.

Previous to the arrest the conductor asked, “Are you are a colored man!”” “Yes,” was the answer. “Then,” said the conductor,” you will have to retire to the colored car.” The man refusing, Capt. Cain was invoked, and entering the car, he said to Plessy, “If you are colored you should go into the car set apart for your race. The law is plain and must be obeyed.”

The set upon which the affidavit is based is known as the “Jim Crow Car” bill, and in substance as follows.

“An act to promote the comfort of passengers on railway trains,” requiring all railway companies carrying passengers on their trains in this State to provide equal but separate accommodations for the white and colored races by providing separate coaches or compartments so as to secure separate accommodations, defining the duties of the offers of such railways, directing them to assign passengers to the coaches or compartments set aside for the use of the race to which such passengers belong, authorizing them to refuse to carry on their trains such passengers as may refuse to occupy the coaches or compartments to which he or she is assigned; to exonerate such railways company from blame or damage that might proceed from such refusal; to prescribe penalties for all violators of this act.”

On the 25th of May last, the Supreme Court rendered an opinion in a suit entitled “State of Louisiana Ex Rel W.C. Abbott v. A.W. Hicks, Judge et al, construed the law as not applying to interstate passengers and applying only to domestic passengers.

Plessy was arraigned before Judge Moulin this morning. He was represented by J.C. Walker, Esq. who waived examination on the part of his client, and the judge committed Plessy to the Criminal District Court under a bond of $500, which was signed and Plessy released.

Kunhardt Plessy In The Wrong Coach

Plessy boarded the East Louisiana Railroad Co. train at Press and Royal streets.

East-Louisana

Here is a photograph of the nearby West End station.

west-end

This is the order noting that Plessy’s counsel waved examination, and he was held on $500 bond. As the article suggests, Plessy posted bond, and was released.
Kunhardt Plessy Court Document 002

Here is an affidavit Plessy signed.

PVG-PlessyAffidavit

Judge Ferguson found that Louisiana could regulate railroad companies if they only operated in state boundaries. Plessy was ordered to pay a $300 fine.

Albion Tourgee´ represented Homer Plessy before the Supreme Court. He asked the Justices to imagine if they were black.

Tourgee

Here is the Supreme Court’s order affirming the decision of the Louisiana Supreme Court, noting the dissent of Justice Harlan.

plessy-scotus

And in a story almost too good to be true, descendants of Homer Plessy and John Ferguson have started a non-profit known as the Plessy and Ferguson Foundation. Here are Keith Plessy and Phoebe Ferguson. I’ve spoken on the phone to Keith Plessy.

Here is Plessy’s grand-nephew, Keith Plessy, standing at the site where his ancestor was arrested, Press and Royal streets.

plessy-standing

 

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Prop1 Class 14 – Future Interests II: Executory Interests

Class 13 – 2/28/17

Future Interests II: Executory Interests

  • Notes and Questions, bottom of 283-285
  • Executory Interests, 286-292
  • Problems, 292
  • Review Problems, 292-293
  • Notes, 293-295
  • The System of Estates Chart, 296

Today we will continue covering future interests.

The lecture notes are here.

This is Henry VIII, who abolished the Statute of Uses.

He is most famous for breaking England away from the Roman Catholic Church so he could obtain a divorce from his first wife, Catherine of Aragon. She did not bear him a son, and he blamed her. Now we know that the Man provides the Y-chromosome, and is responsible for determining the gender of the offspring).

Henry-VIII-kingofengland_1491-1547

 Henry would go on to be married a total of 6 times, in his pursuit of a male heir.  Not all of his wives faired so well

Here is the rhyme we use to remember their fates: Divorced, Beheaded, Died, Divorced, Beheaded, Survived.

This helpful graphic summarizes the fate of Henry’s wives. Henry’s most famous offspring was Elizabeth, who became Queen Elizabeth I (remember Shakespeare in Love?).

henry-wives

 

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Donald Trump’s “Sole Organ”

Before he joined the Supreme Court, Rep. John Marshall of Virginia referred to the President as the “the sole organ of the nation in its external relations.” Nearly 130 years later, the Supreme Court adopted this conception of the Chief Executive in United States v. Curtiss-Wright, who serves as the “the sole organ of the federal government in the field of international relations.” While this notion has historically been applied to the realm of foreign affairs, in my writings on the constitutionality of DAPA, I adopted it for domestic matters. Specifically, I cited President Obama’s statements that he could not grant deferred action beyond DACA beneficiaries–a position he promptly reversed–as evidence of bad faith. I was widely criticized for this position, as my interlocutors insisted that courts should not consider off-the-cuff statements from the President.

The closest authority I could find to support this position was an exchange in Hamdan v. Rumsfield between Justices Thomas and Stevens. In dissent, Justice Thomas quoted from a DOD press conference, which explained the purpose of President Bush’s Military Commission Order No. 1. Justice Stevens rejected any reliance on these “press statements,” noting that “We have not heretofore, in evaluating the legality of Executive action, deferred to comments made by such officials to the media.” That is, the policy would be judged on its four corners, and not external remarks. But this did not directly concern the President’s press statements.

In Gridlock, I provide this summary of the doctrine, with references to Presidential pronouncements in Youngstown:

It is true that the President’s statements in informal fora are far different than official executive branch regulations published in the Federal Register or sworn testimony submitted to Congress. But these remarks resonate on a much deeper level. When the President speaks for the nation, he speaks with one voice as the “sole organ” of the United States government.411 This oft-cited dictum from United States v. Curtiss-Wright Export Corp.,412 originally voiced by Representative John Marshall in 1800, is seldom taken literally.413 Usually, courts listen to the “sole organ” speak through the form of general policy statements issued by an executive branch agency, or even developed by the Justice Department during the course of litigation. Seldom do we see such specific reflections from the Commander in Chief himself. Here, the President personally explained the contours of his own authority on a consistent and reasoned basis. That the comments of the only person elected to the highest office in the land were unscripted — and not prepared by an army of speechwriters — elevates this discourse. Further, these were not simply barbs about policy disputes, but explications about his presidential oath to “preserve, protect, and defend the Constitution of the United States.”414 As the President acknowledged during a town hall meeting on police violence, “I’m aware that my words matter deeply.”415 This may be particularly true when the President is, to borrow a phrase from Justice Frankfurter, “learned . . . in the law.”416 Indeed, President Obama has opined that his experience as an attorney makes his statements on executive power more authoritative than those made by members of Congress who are not “constitutional lawyers.”417 Perhaps most importantly, President Obama has defined the bounds of his own power in response to questions from we the people, the ultimate sovereigns in the United States and the source of his authority.418 These presidential pronouncements are not hollow utterances.

As with many of my ideas that that were ridiculed before January 20–such as my work on the need for uniformity with respect to nationwide injunctions concerning immigration–the “sole organ” theory has now gained a certain cache.

In brief after brief after brief in Washington v. Trump, the challengers cited then-candidate Trump’s statements about his desired “muslim ban,” as well as President Trump’s concerns for protecting Christians in majority-Muslim nations, as evidence of unlawful animus. The 9th Circuit judges specifically referenced those statements in its Establishment Clause analysis (though stopped short on relying on them). To prove the point about the “sole organ,” the panel also rejected an attempt by White House Counsel Don McGahn to clarify the executive order, such that green-card holders were not covered. That change had to come straight from the horse’s mouth, so to speak. Even after the 9th Circuit stayed en banc proceedings, on the government’s representation that a new executive order was forthcoming, the Washington AG continues to cite the President’s statements, which conflict with that of the Justice Department.

Throughout these proceedings, there appears to have been a lack of communication between the Department of Justice and the White House. On February 16, Defendants filed a supplemental brief on en banc consideration, representing that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order . . . .” 9th ECF 154, at 4. In response, the Court immediately issued an order staying further en banc proceedings. 9th ECF 161.

Yet on the same day—February 16—President Trump directly contradicted the representations made to this Court. During a news conference, the President informed the nation that he is pursuing his appeal in the Ninth Circuit.3 He explained that: “We’re issuing a new executive action next week that will comprehensively protect our country. So we’ll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people.” Id. at note 3.

In the earliest moments of the Trump Administration, we saw another manifestation of the President’s “sole organ”: the Twitter accounts of executive-branch agencies. The Washington Post reported, “Trump administration officials instructed employees at multiple agencies in recent days to cease communicating with the public through news releases, official social media accounts and correspondence, raising concerns that federal employees will be able to convey only information that supports the new president’s agenda.” The U.S. Department of Agriculture was apparently put under some sort of “gag order,” preventing it from releasing “any public-facing documents.” Similar orders were in effect at the EPA, Interior, and HHS. The National Park Service even apologized for retweeting photographs comparing the inaugurations sizes of President Obama and President Trump.  With respect to Obamacare, the Trump Administration canceled pre-paid advertisements promoting the open-enrollment season. As Eugene Volokh correctly pointed out, there are no free speech issues: “the First Amendment doesn’t give subordinates the right to choose what official government speech contains, over the objections of their superiors.” It is the President, indeed the “sole organ” of social media, that gets to decide what his subordinate agencies tweet.

One final area where the President’s personal statements may come up: in the court martial of Sgt. Bowe Bergdhal. Then-candidate Trump referred to Bergdahl as a “dirty rotten traitor,” and mimicked his execution by firing squad. Bergdahl’s lawyer, Eugene R. Fidell, argued that these statements would prevent a fair trial. The trial court judge denied the motion-to-dismiss, finding that“No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial.” This case will be appealed to the Court of Appeals for the Armed Forces, and perhaps ultimately, the Supreme Court. Yet another place where the President’s statements will become par for the judicial diet.

Relatedly, on January 13, a detainee at Guantanamo Bay cited in an emergency motion Trump’s tweet that “these are extremely dangerous people who should not be allowed back onto the battlefield.” His lawyers explained that “the President-Elect has stated publicly his intent not to release any detainees from Guantanamo regardless of the facts or circumstances of their cases.” (Ultimately, Secretary Carter denied the motion to transfer, so the issue was moot).

I will write more about President Trump’s “sole organ.”

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Statutory Originalism

In most cases, originalism is associated with the interpretation of the Constitution. To understand provisions ratified in 1789, 1791, or 1868, scholars turn to contemporary sources to ascertain their original meaning. However, this modality is in no sense limited to the Constitution. It also applies to statutes, in what I think of as statutory originalism.

Many of the critiques of constitutional originalism apply with much weaker force to statutory originalism. First, the so-called “dead hand” problem is not present. While binding constitutional provisions are extremely hard to change–thus allowing the “dead hand” to control our polity–statutes can be easily changed with a mere majority vote in Congress. Second, while constitutional provisions are always present and binding, statutes that are unimportant often fall into desuetude due to a lack of enforcement. In this sense, bad statutes fade away, while (potentially) bad constitutional provisions linger indefinitely.

Third, and most importantly, it is far easier to ascertain the original understanding of a statute–especially one of fairly recent vintage–then a provision drafted two-hundred years ago. The volume of information attending the clandestine convention of 1787, while significant, is dwarfed by the legislative records of fairly mundane provisions enacted today. (Although I’ve written that the relevance of modern legislators’ statements–which may be motivated by a contrived attempt to affect judicial review–ought to be diminished). Further, lexicography–the study of language–is far more sophisticated today than it was two centuries ago. When reading a statute of some vintage, where the present-day meaning of a word has shifted, jurists can, and should look, to dictionaries at the time the provision was drafted, to ascertain its original understanding. Indeed, it is neither necessary, nor desirable, to find a dictionary from the same year as the statute. As Justice Scalia and Bryan Garner observed, “Dictionaries tend to lag behind linguistic realities.” If you are seeking the meaning of a well-established term in an 1819 statute, they wrote, ” it is generally quite permissible to consult an 1828 dictionary.”

Statutory originalism is most useful when the meaning of a word undergoes a fairly rapid linguistic evolution. Imparting a present-day meaning into a phrase that was selected by Congress some decades ago converts the U.S. code into a living breathing, document (a sort of living constitutionalism for statutes). Any arguments that support living constitutionalism–Article V is hard, and our laws must move with the time–apply with minimal force to statutes, which can be tweaked on the fly.

Perhaps there is no greater illustration of this dynamic today than the word “sex.” Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex.” 20 U.S.C. §1681(a). The 4th Circuit in GG v. Gloucester County School Board relied extensively on dictionaries to ascertain the meaning of “sex” in 1972. Judge Niemeyer’s dissent canvassed five contemporary dictionaries to establish the proposition that “sex” refers to the “physiological distinctions between males and females, particularly with respect to their reproductive functions.”:

Title IX was enacted in 1972 and the regulations were promulgated in 1975 and readopted in 1980, and during that time period, virtually every dictionary definition of “sex” referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions. See, e.g., The Random House College Dictionary 1206 (rev. ed.1980) (“either the male or female division of a species, esp. as differentiated with reference to the reproductive functions”); Webster’s New Collegiate Dictionary 1054 (1979) (“the sum of the structural, functional, and behavioral characteristics of living beings that subserve reproduction by two interacting parents and that distinguish males and females”); American Heritage Dictionary 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions”); Webster’s Third New International Dictionary 2081 (1971) (“the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change …”); The American College Dictionary 1109 (1970) (“the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished …”).

The majority opinion by Judge Floyd likewise focused on the American College Dictionary (1970) and Webster’s Third  to “inform our analysis of how the term “sex” was understood at that time.” The full definition from Webster’s Third, is, by far, the most capacious:

the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu[ally] genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness.

There is a reason why Webster’s Third was Justice Scalia’s bête noire. As I noted in Unraveled:

Scalia and Garner strongly criticized the follow-up edition, Webster’s Third, because of “its frequent inclusion of doubtful, slip-shod meanings without adequate usage notes.” Antonin Scalia and Bryan A. Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419 (2013). See also MCI Telecomms. Corp. v. AT& T Co., 512 U.S. 218, 228 n. 3 (1994) (per Scalia, J.) (noting that “[u] pon its long-awaited appearance in 1961, Webster’s Third was widely criticized for its portrayal of common error as proper usage,” and citing as an instance “its approval (without qualification) of the use of ‘infer’ to mean ‘imply’”). Merriam-Webster’s editor-in-chief Frederick C. Mish was not troubled. “I regret having to say that Judge Scalia is in error on this matter,” Mish said, “but at least he has the satisfaction of knowing that his error is not reversible by a higher court.” William Safire, On Language: Scalia v. Merriam-Webster, N.Y. Times (Nov. 20, 1994), nyti.ms/292OQ9W.

Blackman, Josh. Unraveled: Obamacare, Religious Liberty, and Executive Power (p. 500). Cambridge University Press. Kindle Edition.

We should never forget that Justice Stevens concluded in Gonzales v. Raich that the cultivation of locally grown marijuana was an “economic activity” by citing Webster’s Third.

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.

In any event, relying on Webster’s Third, the GG majority finds that these dictionary definitions are not dispositive:

Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge.

This analysis does not really work. There is no evidence that the use of “sum of,” and the word “typical,” were in any way directed at what we gender identity, or behavior aspects of “sex.” Indeed, these qualifying words referred specifically to physiological differences related to reproduction, not identification.  Even in 1972, society was aware of people who were not, from a  physiological, perspective, strictly male or female. This is what Webster’s Third was likely trying to capture, and is distinct from the notion of gender identity. The phrase “gender identity” appears nowhere in any of the contemporary dictionaries. To quote Justice Scalia from MCI v. AT&T, the Court will not accept a definition derived from “a single dictionary … which not only supplements the meaning contained in all other dictionaries, but contradicts one of the meanings contained in virtually all other dictionaries.”

In a footnote, Judge Floyd provides contemporary definitions, which (anachronistically) bolster its interpretation.

Modern definitions of “sex” also implicitly recognize the limitations of a nonmalleable, binary conception of sex. For example, Black’s Law Dictionary defines “sex” as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; gender.” Black’s Law Dictionary 1583 (10th ed.2014). The American Heritage Dictionary includes in the definition of “sex” “[o]ne’s identity as either female or male.” American Heritage Dictionary 1605 (5th ed.2011).

Such latter-day definitions are irrelevant for purposes of statutory originalism. In MCI v. AT&T, Justice Scalia further rejected reliance on a dictionary “not yet even contemplated” when the statute was drafted.

Judge Niemeyer’s dissent dismissed the majority’s efforts to disentangle the word “sex” from its traditional definition, involving physiological characteristics.

Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.

In the end, however, the majority does not actually assert that the meaning of “sex” in 1972 included the notion of gender identity. Rather, under the uber-deferential Auer framework, Judge Floyd concludes that though the Department’s interpretation is not “intuitive,” it is “not plainly erroneous.”

We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”

On appeal to the Supreme Court, however, this argument will no longer cut it. Even accepting the definition from Webster’s Third (the late Justice is indeed rolling around in his grave), GG’s construction of the word “sex” to include gender identity is not consistent with how the phrase was originally understood. Judge Floyd’s opinion is not the best interpretation, nor is it even a good interpretation of Title IX. It only works, as the 4th Circuit explained, in the Auer context, where–so long as it is not inconsistent with the statute–it will be upheld. That argument no longer controls.

There is indeed a certain appeal to this mode of statutory originalism. During his February 23 press conference, White House press secretary Sean Spicer employed a statutory originalist mode of thinking, asking how members of Congress would have understood the provision in 1972. Here are a few excerpts:

“I mean, if you look at this, the law that was passed in 1972 did not contemplate or consider this issue.”

“The reality is, is that when you look at Title IX, it was enacted in 1972.  The idea that this was even contemplated at that is preposterous on its face.”

“There’s no way that you can read Title IX from 1972 — anybody — and say that that was even contemplated back then.  It just — there’s nobody that is possibly suggesting that the law that was passed in 1972 did that.”

Spicer, not a lawyer, was probably repeating what the Attorney General told him. But it works in very simple sound bites that people can understand. This is likely a preview of what the Justice Department’s position in this case will look like.

Mike Dorf argues to the contrary, citing Justice Scalia.

The district might argue that the Congress that enacted Title IX did not have trans cases in mind, but so what? As Justice Scalia wrote for the unanimous Court in the 1998 Oncale case, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Dorf’s argument conflates original intent with original public meaning. (Seeking the framer’s intent has long ago been abandoned by originalists of all stripes). Likewise, the GG Brief in Opposition states “When the regulation was drafted, few would have conceived that students like G. would have been assigned a female sex at birth and yet, as a result of hormone therapy, have facial hair and other male secondary sex characteristics, have a male designation on his government ID card, and live all aspects of life in accordance with his male gender identity.” (p. 31). All this may be true, but is irrelevant to understanding original meaning.

Title VII prohibits “discriminat[ion] . . . because of . . . sex.” Oncale presented the question whether Title VII is violated “when the harasser and the harassed employee are of the same sex.” That is, would male-on-male sexual harassment run afoul of Title VII? Justice Scalia’s analysis disregards what the drafters intended, instead focusing on what the provisions they enacted mean (or really meant, though he presumes the meaning of “sex” was unchanged in the three decades from the enactment of Title VII and Oncale, which he was almost certainly right about):

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

“The provisions of the law,” that is how statute is understood, trumps the drafter’s “principal concerns.”

To bring this back to GG, it is most certainly the case that the drafters of Title IX in 1972 were not concerned with how transgender students access bathrooms. (To the contrary, there is evidence in the legislative record of a concern that schools would not be able to separate male and female intimate facilities). However, the “provisions of the law” in Title IX cannot be interpreted as was the provision in Title VII. The word “sex” in Title VII had an ascertained meaning in 1968 and 1998, based on physiological characteristics.

There was no jurisprudential principle that would prevent Justice Scalia from applying Title VII to circumstances not envisioned by its drafters (male-on-male harassment) because the language they chose was susceptible to different conditions. The same cannot be said for Title IX, in which the language was not susceptible to sex-discrimination-based-on-identity. To make this originalist case, GG will have to provide contemporary evidence that in 1972, the word “sex” embraced not only physiological differences, but also–in the words of Respondent (p. 30)–“behavioral aspects of sex.” Citing later precedents about sex stereotypes may provide a rule of decision, but does not get you to original meaning. The merits brief has not yet been filed–I will report back once it is posted.

In closing, I’ll note that I predicted–even before the election–that the Chief Justice would rule for the government, by narrowing Auer deference, but ruling that the word “sex” is best understood to embrace gender identity. This would be King v. Burwell redux–strangling administrative deference, without issuing a controversial 5-4 decision on a weighty social issue. But who knows. My predictions are always wrong.

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The First Step to Improving Intellectual Diversity, is to Acknowledge There Is A Problem

Debates over the lack of intellectual diversity on law school campuses usually deadlock in one of three ways.

First, many professors assert there is a pipeline problem: on average, fewer qualified conservative faculty members apply for academic positions. Therefore, because the supply of conservative applicants is much lower, it is not surprising that fewer conservatives are hired. Why is the pipeline dryer? Perhaps conservatives–who love money, don’t you know–are more inclined to pursue lucrative careers in private practice. Or, maybe conservatives are less likely to invest the time needed to pursue an advanced degree, so their applications are weaker. Or perhaps the conservative mind, unlike the liberal mind, is less prepared to deal with the delicate, nuanced nature of scholarly discourse, so they choose less rigorous vocations.

Second, other professors claim that there is no overt discrimination against conservative applicants, and indeed, they have never seen a resume that exudes an applicant’s conservative philosophy. Therefore, it is impossible that there is any form of discrimination, because there is no basis on which faculty members could even discriminate.

Third, some professors acknowledge the problem, and candidly maintain that conservative scholars are simply less qualified because their ideas are worse. Or, to use an anecdote one professor related at a debate I attended earlier this year, “the reason why conservatives don’t get hired is because their ideas are just stupid.”

These three defenses illustrate the vicious cycle that is the lack of intellectual diversity. First, because conservatives are less likely to be hired as academics, they are less likely to waste their time pursuing advanced degrees, and more likely to seek careers in lucrative private practice–not the other way around. Further, if law students see that their faculty are overwhelmingly left-of-center, and are less likely to have the mentors to guide them through the process, they are more likely to be discouraged and pass on the career altogether. (Draw whatever analogies you’d like to the impact of an all-white faculty on minority students pursuing legal careers). Second, because any resume that exudes a conservative bend will likely be discarded, right-of-center scholars are drilled on how to make a resume look as innocuous as possible. (I have to laugh, at least internally, when professors insist they have never seen a conservative resume; there are legions of resumes that list employment with NARAL, but not many with National Right To Life). Third, within the academic echo chamber, professors are more inclined to think a theory is “stupid” if it is a theory they are never exposed to in the faculty lounge. Thus, the lack of conservative members on the hiring committee, in the classroom, or at the workshop, reinforces all of these perspectives.

Alas, efforts to challenge this status quo are invariably premised on anecdotal evidence about conservatives being discriminated against at the hiring market. Defenders of the status quo reject this anecdotal evidence, as it does not conform with their experiences on hiring committees, so it cannot be true.

Fortunately, there is a way to resolve this deadlock. The American Association of Law Schools (AALS) maintains extensive records of applicants on the entry-level hiring market through the Faculty Appointments Register (FAR). With proper protections for confidentiality, scholars can systematically compare the intellectual diversity of the applicant pool, with those in fact hired for tenure-track positions. The AALS granted access to the 2007 FAR registry to Professors Trace E. George and Albert H. Yoon. Their research considered how hiring was impacted by an applicant’s race, gender, clerkship, alma mater, advance degrees, and other factors. (Among their findings, “at the intermediate call-back interview stage … women and non-whites are statistically significantly more likely to be invited for a job talk interviews,” but are “no more likely than similarly situated men and whites to get a job offer.”). George and Yoon’s important work, however, did not focus on intellectual diversity.

In January 2016, the AALS executive committee met with several leading conservative and libertarian scholars, including Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and George Dent. These professors asked for the creation of a Political Diversity Task Force, as well as for access to the FAR data, so they could study how ideology impacts entry-level hiring. One month later, the Executive Committee replied that Task Force would not be created, and the professors would not be given FAR access–even to the same data that George and Yoon relied on. In the year since this letter was sent, no action was taken to respond to the concerns.

The first step to improving intellectual diversity on law school campuses is to acknowledge there is a problem. By refusing to even permit a task force to study the issue, and analyze anonymized data that was already released to other scholars, the AALS instead buries its head in the sand.

This absolute frustration led me to sign a letter addressed to the AALS, which was organized by George Dent, and joined by many of my colleagues. I am sick and tired of debating the topic of intellectual diversity, only to have my interlocutor deny there is even a problem. If indeed there is no problem, let the data speak for itself. I will gladly shut up if the law school hiring process is immune to ideological discrimination–especially in public law fields like constitutional law–and that it is merely the case that not enough qualified conservatives are applying. If it is the case that my own personal experiences at the meat market, and those of my Federalist Society colleagues, are mere delusions, I will gladly move onto other matters. However, if there are problems, we can address them. But it is unacceptable to sit by, year after year, and do nothing.

I reproduce the letter, in its entirety:

February 24, 2017

To the Executive Committee, Association of American Law Schools,

There is growing awareness that conservative and libertarian scholars are grossly underrepresented in American colleges and universities and that this imbalance results from political discrimination. For several years now a number of legal scholars have asked the AALS to support the commitment to viewpoint diversity stated in its by-laws. Some officers have taken our concerns seriously. Immediate Past President Kellye Testy was most cordial to us, as were her immediate predecessors, Dan Rodriguez and Blake Morant. I have spoken briefly to the new President, Paul Marcus, and I hope that he will do likewise.

Judith Areen, the Executive Director of the AALS, seems also to take us seriously. She has alerted program organizers to the need for viewpoint diversity. This may explain why a few of us were invited to participate in AALS programs this year. Several people tell me that panels at this year’s Annual Meeting seemed to be better balanced than in the past. In 2016 I was invited to serve on the AALS Program Committee. Other members of that committee seemed receptive to greater ideological diversity in the Association’s special programs.

Unfortunately, these developments seem to constitute the sum total of progress for viewpoint diversity.

The Executive Committee met with Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and me during the 2016 Annual Meeting. At this meeting we urged, inter alia, the creation of a Political Diversity Task Force on viewpoint diversity similar to the Racial Diversity Task Force created in 1999 or the three task forces created to deal with issues of globalization. We also asked that viewpoint diversity be made a regular element of the sabbatical reviews for member schools, and that scholars be afforded access to the Faculty Appointments Register (“FAR”) for research, subject to strong protections for confidentiality of information about registrants.

In February, 2016 a letter was sent on behalf of the EC stating that no access would be granted to the FAR or even to the data obtained by Professors Albert Yoon and Tracey George when they were granted access to the FAR in 2007. The letter said that the EC had formed a subcommittee to study access to the FAR. A year later, we have not heard that any action has been taken.

In February, 2016 we also received a letter from President Testy saying that she had appointed a subcommittee of the EC to begin assessing practices and processes to see if changes were needed to meet the goals of the AALS. However, so far as we know, no task force was created and no steps were taken to make viewpoint diversity a regular part of sabbatical reviews. Indeed, so far as we know, the EC took no further action whatsoever in response to our concerns.

We fear that the Executive Committee does not take our concerns seriously and intends to take no action to address them. We urge the EC to alter this attitude. Both scholarship and teaching suffer when law schools are echo chambers in which only one side of current debates is given a voice. Should the EC decide to tackle the issues we raise, we will be pleased to cooperate with you in any way we can.

Sincerely,

George W. Dent, Jr.
Jonathan H. Adler
Randy E. Barnett
Josh Blackman
Gerard Bradley
Robert Cooter
Richard Duncan
Scott FitzGibbon
Brian T. Fitzpatrick
Elizabeth Price Foley
Gail Heriot
James Lindgren
John McGinnis
Gregory S. McNeal
Nadia Medzel
Seth Oranburg
James Phillips
Cassandra B. Robertson
Nicholas Quinn Rosenkranz
Ilya Somin
Lee Strang
Eugene Volokh
Kevin Walsh
Lynn Wardle
Steven Ware
Amy L. Wax
Steven Willis
Todd J, Zywicki

Randy Barnett offers more thoughts at the Volokh Conspiracy.

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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.

brzonkala

brzonkala2

 

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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

reversion

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.

contingent-remainder

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

poss-of-rev

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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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