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Last week, I spoke at the Santa Clara Law Review symposium, and addressed the constitutionality of 8 U.S.C. 1373. My tentative conclusion is that the facial constitutionality of this statute is a close call, but to invalidate it, the courts would have to find that the direction of a state’s workforce is not “proper”–a proposition that goes beyond the Court’s holding in Printz or NFIB. However, I was hesitant to discuss an as-applied challenge, because we did not know the specifics of (1) what sorts of funds would be withheld, (2) how much the funds would amount to, and (3) what sort of notice the states had. Moments before I gave my speech, via Charlie Savage, I tweeted about a series of letters mailed by DOJ to various sanctuary cities, listing the specific sorts of funds that they may be at risk of losing. Specifically, the FY 2016 Byrne JAG grant required recipients to stipulate that they were in compliance with 8 U.S.C. 1373. The amounts at issue were strikingly small ($4 million for New York City, and $20 million for the entire state of California). The letter did not even withhold the funds right away. Rather, the letter stated “Failure to comply with this condition could result in the withholding of grant funds, suspension or termination of the grant, ineligibility for future O.J.P. grants or subgrants, or other action, as appropriate.” It was quite open-ended.

With this background, yesterday’s nationwide injunction concerning “sanctuary cities” (a term with no actual meaning) is perplexing. First, it finds that the President’s January 25 executive order is unconstitutional, but remarked that the Justice Department could still withhold funds where the law permits it to.

[T]his injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order. It does not affect the ability of the Attorney General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from exercising Section 9(a) in a way that violates the Constitution.

In other word, DOJ can do exactly what it said it would do in the letters linked above. So what’s the point of the nationwide injunction? (See Howard Wasserman’s post about whether a nationwide, or really universal, injunction was even appropriate here). This opinion mostly serves as a symbolic victory, with little actual teeth.

Second, the crux of the opinion is that because the executive order was not specific as to what funds would be withheld, the vague order violates due process. That would have been enough to enter the injunction. Instead, the court unnecessarily reached other important constitutional questions, finding potential violations of the spending clause and commandeering doctrine. (As an aside, the commandeering doctrine is an application of the necessary and proper clause, not the 10th Amendment standing by itself, as the court erroneously stated on p. 41). These are very difficult questions, and it was improper (no pun intended) for the Court to prematurely address these questions.

Third, the court continued the recent practice of citing statement made by the President, and now Attorney General, to contradict representations made in court by the Justice Department. At bottom, the court believes the executive branch is attempting to mislead the court. This distrust is part and parcel of the resistance by the judiciary.

I’m reminded of an exchange in NFIB v. Sebelius between Justice Scalia and Solicitor General Verrilli, as I recount in Unprecedented:

Justice Scalia was not persuaded that the penalty was a tax for any purposes. On the next day, he asked Verrilli directly, “The president said it wasn’t a tax, didn’t he? . . . Is it a tax or not a tax? The president didn’t think it was.” Verrilli, no doubt frustrated by this question, evaded it with some Washington-spin: the president, Verrilli noted, had said that the penalty “wasn’t a tax increase,” but he didn’t say it wasn’t a tax.

In another time, when the President misled the American people about his signature achievement, courts were praised for ignoring his actual words, and were celebrated for bending over backwards to rewrite statutes in order to save their constitutionality. Today, courts, as part of the resistance, go out of their way to reach difficult constitutional questions of first impression, give executive orders the most uncharitable construction possible, and take fairly opaque statements by the executive branch to contradict official representations by the Justice Department. My how things change.

Had President Trump not issued his sanctuary city order back on January 25, and merely sent out these letters, there would be no nationwide injunction. Here, the Justice Department, which administers the grants, is well within its authority to require compliance with the terms these cities and states already consent to. I see a parallel to his travel bans. Had President Trump quietly instructed his State Department officials to quietly put on hold any visa application from these countries, and to suspend specific visas of individuals from these nations, without the dramatic flare of an executive order, there would not have been a nationwide injunction.

This early bravado has, in no small part, led to defeat after defeat in court.

There are a few plus sides to current political dynamics. After eight years of screaming at the top of my lungs about the separation of powers, at long last, people are now taking the concept seriously. National Public Radio announced a coast-to-cast program focusing on power and the presidency. On Monday, I was a guest on Houston Public Radio to discuss the constraints imposed by the separation of powers on executive authority. The host and other guest wanted to talk about Roosevelt and Nixon. I preferred to talk about how President Obama’s precedents pave the way for President Trump.

Our segment runs the first 25 minutes or so:

Enjoy.

A few months ago, the UMass Law Federalist Society Chapter invited me to speak about free speech on college campuses. As a reflection of a disturbing trend, the talk itself became a lesson itself on the First Amendment. The organization posted flyers around the school advertising the event. Below the flyer, to drive home the point, the students wrote “Free Speech Space.” Some students took them up on the offer, writing messages about immigration, the war in Syria, the environment, sexual assault, and a host of other controversial topics.

Other students were offended by these messages, so they responded in the only way they knew how: by tearing down the poster and crumpling it up into a ball. The offenders are unknown, though I understand the administration is checking security cameras to see who did it. (It’s remarkable how often such incidents are caught on omnipresent surveillance, yet how seldom any actual punishments are meted out). I also understand that members of the faculty supported the effort to take down the flyers because of the “offensive” messages scribbled on them.

When I arrived on campus, I was pleased to see new flyers were still posted, though without an included “free speech space.”

In light of this backdrop, and my recent concerns, I held back nothing, and gave a full-throated defense of free speech. At the moment my calendar is open for the fall semester, and I’d be happy to visit your campus.

Here is the audio:

 

 

Events

• Free Speech on Campus, University of Massachusetts Law School Federalist Society Chapter (April 24, 2017) (Audio).

• Sanctuary Cities and the Constitutionality of 8 U.S.C. 1373, Santa Clara Law Review Symposium (April 21, 2017) (Video).

 

 

Media

• Quoted in A Trump Lawsuit Gets a Boost from Restaurants, Bloomberg Business Work (April 24, 2017) (PDF).
• Guest on Houston Matters, Houston Public Media to Discuss the Separation of Powers (April 24, 2017) (Audio).

• Quoted in Winning! Trump, GOP Congress Are 0-4 On Major Campaign Pledges, Talking Points Memo (April 21, 2017).
• Quoted in Republicans Eye New Path Out of Health Care Wilderness, Lifezette (April 20, 2017).

Josh Blackman, a professor at the South Texas College of Law in Houston, said it remains to be seen how many states would actually take the risk of seeking a waiver. He said a better structure might be to repeal the Affordable Care Act regulations and force states to opt in if they want to keep them.

“What state will actually do this? What we don’t know is what states will have to demonstrate” in order to get the waiver, he said. “Governors are not going to risk this because if it doesn’t work, it’s on them.” . . .

Despite uncertainties, however, any movement represents progress after health reform appeared dead.

“At a minimum, things are moving. I don’t think anyone would have predicted that a few weeks ago,” said Blackman, author of “Unraveled: Obamacare, Religious Liberty, and Executive Power.”

• Quoted in Bill Would End Online Porn As We Know It, Unless You Pay The Gov’t, The Daily Caller (April 20, 2017).

Josh Blackman, an associate professor at the South Texas College of Law in Houston, told The Daily Caller News Foundation that such a law is definitely unconstitutional, comparing it to a famous court case.

“In Brown v. Entertainment Merchants Association, the Supreme Court held that California could not prohibit the sale of violent video games to minors. That law was overbroad, and violated the freedom of speech,” Blackman told The Daily Caller News Foundation (TheDCNF).

The proposed law in question here “is even more overbroad, and by default, censors the sort of information adults can access unless they pay a fine. Even though the government does have the power to regulate “obscene” content–which is different from pornography — imposing a filter would sweep in a lot of constitutionally protected speech,” Blackman continued.

 

• Guest on AM740 KTRH, Houston, discussing the Affordable Care Act (April 20, 2017) (Audio).

• Quoted on KRLD Radio 1080 AM Dallas, concerning the Affordable Care Act (April 18, 2017) (Audio).

• Cited in Researchers Predict SCOTUS Decisions With Improved Accuracy, Illinois Tech Today (April 18, 2017).
• Quoted in Trump’s message to Democrats: Negotiate Obamacare, or payments to insurers will be cut, The Washington Times (April 16, 2017).

Josh Blackman, a constitutional law professor at the South Texas College of Law, said that if Mr. Trump truly wants leverage, then he should cancel an Obama-era rule that lets members of Congress and their staff keep their federal health care subsidies, even though they are mandated by law to use Obamacare’s exchanges.

Regular Americans who buy plans through the exchanges are restricted from having employers contribute to their premiums, so critics of the carve-out say it offered special treatment to Capitol Hill insiders.

“If the cost-sharing subsidies are cut, the American people as a whole will feel it,” Mr. Blackman said. “If the congressional subsidies are cut, the American people won’t feel it. In fact, Americans may be upset that members of Congress are begin given special treatment. I think this issue plays well in the public arena.”

 

Floyd Abrams recently opined that “one of the most remarkable developments of the last 20 years” has been the fact that both liberals and conservative Justices now view “the First Amendment in an expansive and generally highly protective way.” These precedents, however, are not etched in stone. In an insightful, yet harrowing post, Mike Dorf describes how easy it would be for a differently-constituted Supreme Court to bring the United States in line with foreign nations concerning prohibitions of “hate speech.” Dorf writes:

A movement to treat hate speech as beyond the pale–perhaps as part of a backlash against Trumpism–could, given enough time, result in political changes and transformative judicial appointments. A SCOTUS majority might then announce that when it comes to hate speech, the U.S. is not an exception to the rest of the democratic world after all. At that point, Howard Dean would seem less like a constitutional ignoramus and more like a prophet.

Dorf, who stresses that he does not “prefer the European/Canadian approach to hate speech to the American approach,” sees where the trend line is going.

Don’t believe it? Look no further than the New York Times editorial page, where Professor Ulrich Baer of NYU defends the “snowflakes” on free speech:

As a scholar of literature, history and politics, I am especially attuned to the next generation’s demands to revise existing definitions of free speech to accommodate previously delegitimized experiences. Freedom of expression is not an unchanging absolute. When its proponents forget that it requires the vigilant and continuing examination of its parameters, and instead invoke a pure model of free speech that has never existed, the dangers to our democracy are clear and present.

For a preview of what our polity would look like with people like Baer in charge as speech police, consider the recent  witch hunt in South Africa. A pseudonymic blogger for the Huffington Post wrote an idiotic entry, arguing that white people should lose the franchise. It was meant as satire, or something like that. This is the sort of inane content that no one would actually bother reading–until several readers filed complaints with the Press Ombudsman of South Africa. This ominous-sounding office found that HuffPo was guilty of a “tier-3 breach (serious misconduct) of the South African Code of Ethics and Conduct.” The sanction?

The Huffington Post is directed to apologise unreservedly to the general public for publishing text that:

• was discriminatory and denigratory;
• amounted to hate speech;
• was malicious;
• was against the public interest;
• contained factual inaccuracies;
• impaired the dignity and reputation of many people; and
• blaming its system, instead of probing deeper into the racist and sexist nature of the blog.

(Remember: all those Justice Kennedy decisions promoting “dignity” go far beyond LGBT rights–this is the trump card by which European courts subjugate free speech.).

Consider the Ombudsman’s “Free Speech” analysis:

The Bill of Rights, which is quoted in the Preamble to the SA Code of Ethics and Conduct, makes provision for freedom of expression. That is a given.

The same Bill of Rights, though, also outlines borders to this freedom. As always, freedom cannot be unbridled and without limits, and should be exercised responsibly.

Indeed, that is what the Code of Ethics and Conduct is all about – to ensure that the freedom that this country has finally obtained, is protected by not abusing it. Each and every section of the Code has this aim as its main purpose.

This is also the main reason for the existence of the Press Council, and for the operations of its office.

My task, therefore, is to ascertain whether the content of the blog crossed the borders (set by the media industry itself), or not. On the other hand, while this office should ensure that the media stay within these borders, it should also be careful not to unnecessarily curb freedom of expression.

Free speech is “protected by not abusing it.” This doublespeak passes for blackletter law in foreign nations. How easy would it be to import this into our First Amendment doctrine, as Dorf suggests.

The Ombudsman further found that Pillay, the HuffPo editor in chief, was responsible for ensuring that content published on the blog “does not breach the code.”

He said her defences of the blog left the reader with the impression that she supports the gist of Garland’s argument. She further reinforced this idea by justifying the blog’s removal from the site on the basis of the writer’s identity, not the blog’s content.

“Let me be painfully clear about this: If it is Pillay’s belief that the gist of Garland’s article is correct, she is free to believe that and to pursue her view, but then she must know that this is not possible within the confines of the Code,” Retief says.

She is free to “believe” and “pursue” her views, but if she permits anyone to write about it, she will be punished.

As an aside, this sounds an awful lot like Justice Kennedy’s empty gesture towards religious liberty in Obergefell–you can “advotacate” and “teach” about your beliefs, until the Court tells you doing so is illegal:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advo- cate with utmost, sincere conviction that, by divine pre- cepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

Chief Justice Roberts’s dissent went unanswered:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Make no mistake: there are elements of our society that would cheerfully throw certain bloggers and pundits in jail for their offensive and harmful words. A small segment, thankfully, but it is ascendant. (See my article Collective Liberty for a discussion of the demise of support for free speech among progressives).

How do we prevent this? I’ll return to Dorf’s post. He explained:

American lawyers who went to law school in the last sixty years–which is to say just about all current American lawyers–were educated to believe that protection for the thought we hate is the central principle of the First Amendment and that hate speech regulation is inimical to such protection. One might even say we were indoctrinated in this belief. It is therefore understandable that we find it natural. Thus, ironically, an indoctrinated belief about free speech leads American lawyers to dismiss without even considering the idea that regulation of hate speech could be consistent with liberal democracy. Yet a culture of free speech is supposed to make us more, not less, open to ideas that we find unfamiliar.

I take exception with the notion that learning about free speech amounts to “indoctrination,” but his general point is sound. So long as the legal profession, and law students in particular, are taught the importance of protecting speech they hate, including hate speech, then the current status of the First Amendment is more-or-less secure. But if they are not taught this, and American law students begin to clamor for the stalinist policies of South Africa, our current First Amendment is in trouble.

This is why, in part, I speak to as many student groups as possible about the importance of free speech. Sure, I love teaching students about the Constitution, but there is a more important, selfish reason: I dread the day that I wind up guilty of a hate crime prosecution, or worse, forced to attend some sort of reeducation camp. (You may know it as compelled diversity training). I hope in 50 years I look back on this post and laugh about how foolish I was, and reaffirm that the free speech climate in America remains as strong as ever.  Will this happen? Anyone want to bet against it?