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Justice Sotomayor Errs on “Basic Constitutional Principles”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Due Process and Expedited Removal in the Interior: Part I

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

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

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

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

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

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

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

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

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

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

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

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

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

Class 12 – 2/21/17

The Enforcement Powers of the 14th Amendment

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

The lecture notes are here.

Chisolm v. Georgia

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


Justice James Iredell


Justice John Blair


Justice James Wilson


Justice James Cushing


Chief Justice John Jay

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

Seminole Tribe of Florida v. Florida

City of Boerne v. Flores

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

These photographs are courtesy of Hanah Volokh.

United States v. Morrison

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




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

Class 12 – 2/21/17

Future Interests I: Interests in Transferor and Transferrees

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

(Read these pages very, very carefully).

The lectures notes are here.

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


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


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


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

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

Here are my scheduled upcoming events:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stay tuned.


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New Essay: “Self-Plagiarism”

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

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

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

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

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

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

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

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