Apr 7, 2015

ConLaw Class 22 – Individual Liberty I

The lecture notes are here. The live chat is here.

Individual Liberty I

  • Pierce v. Society of Sisters (1476-1478).
  • Buck v. Bell (1428-1432).
  • Griswold v. Connecticut (1478-1494).

Pierce v. Society of Sisters

This is the Hill Military Academy, a private school shut down due to the compulsory education law.

Pierce-Hill_Military_Academy_1903

 

Buck v. Bell

This is Carrie Buck. Why was she designated as “feebleminded”? Because she had an “illegitimate child,” and they charged her with “promiscuity.” The pregnancy resulted from a rape.

buck-standing

This is Carrie Buck with her mother, Emma Buck.

carrie-emma-buck

This is Dr. J. H. Bell, the superintendent at the Virginia State Colony for Epileptics.

James_H_Bell

This is the  courthouse in Amherst County, Virginia where Buck’s case was first “heard”:

This is the “State Colony for Epileptics and Feebleminded,” where Carrie Buck was sterilized in the wake of Buck v. Bell.

colony-2

Here is a rendering of Carrie’s Buck family tree, as performed by Dr. Harry H. Laughlin. F stands for “feebleminded.” Notice That Carrie Buck is designated with an F, her mother Emma was designated with an F, and her daughter, Vivienne, was designated with an F. There you have three generations of imbeciles. Enough.

 

 chart_Carrie_kin2

Haughlin, impressed that Nazi Germany adopted his ideas, had this to say:

The fact that a great state like the German Republic, which for many centuries has helped furnish the best that science has bred, has in its wisdom seen fit to enact a national eugenic legislative act providing for the sterilization of hereditarily defective persons seems to point the way for an eventual worldwide adoption of this idea.

In 1936, Laughlin was invited by the Nazis to receive an honorary degree of Doctor of Medicine at the University of Heidelberg for his work in the “science of racial cleansing.”

LaughlinNaziDegree Here is Carrie Buck shortly before she died.

old-carrie-buck


Here are several pieces of American propaganda about Eugenics.

This one says, “Some people are born to be a burden on the rest. Learn about heredity. You can help to correct these conditions.”

eugenics_display2

This piece of propaganda says “Eugenics is the self direction of human evolution.”

eugenics_tree_logo2

Speaking of social darwinism, and surivival of the fittest, here is Justice Oliver Wendell Holmes, Jr., who firmly believed that “Three generations of imbeciles are enough.”

Holmes

Buck’s daughter, Vivian, was raised by foster parents, This is Vivian at 6 months old. She flunked her IQ test. So she was also deemed an imbecile:

It was Estabrook’s habit to photograph the subjects of his eugenical family studies, and one surviving photo shows Alice Dobbs holding Carrie’s baby. It appears that Mrs. Dobbs is holding a coin in front of Vivian’s face in an attempt to catch her attention. The baby looks past her, staring into the distance, apparently failing the test. Estabrook described that moment during his testimony at trial a few days later: “I gave the child the regular mental test for a child of the age of six months, and judging from her reaction to the tests I gave her, I decided she was below the average.”

16_Alice-Dobbs-and-Vivian-Buck

In case you were wondering, the child was not an imbecile. Here is her report card from first grade. She was a solid B student, with an A in deportment, and on the honor roll.

Vivian died at the age of 8 due to intestinal diseases.

Vivians_grades2

Despite her sterilizations, Buck would go on to be married, twice. First to William Eagle.


buck-with-husband-william-eagle

25 year after William’s death, Buck married Charlie Deatmore.

buck-husband-2nd

Here is Carrie Buck shortly before she died.

old-carrie-buck

Here is a sign in Virginia to commemorate Buck v. Bell.

 

Griswold v. Connecticut

Here is Estelle Griswold, the lead plaintiff at the Planned Parenthood Center of New Haven, Connecticut.

ok

 

Estelle-Griswold

Here is a photograph of Dr. C. Lee Buxton and Estelle Griswold after their arrest.

Dr Lee Buxton and Estelle Griswold

Estelle Griswold Cornelia Jahncke Planned Parenthood League CT

A penumbra is a partial shadow outside the complete shadow of an opaque body.

eclipse-lunar-geometry

Read More
Apr 6, 2015

The Government’s Appellant Brief Part III: The Limiting Principle for Texas’s “Driver’s License Theory of Standing.”

This is the third part in my series about the government’s appellant brief in Texas v. United States. Part I is here about the propriety of a “nationwide injunction.” Part II discusses the government’s use of DAPA as an “incentive” to get people to sign up for deferred action. This post will address what I think is the biggest obstacle for Texas’s “driver’s license” theory of standing: What is the limiting principle? In so many constitutional cases, the question always boils down to this issue.

The government’s brief charges that this approach to standing is “seemingly limitless”:

It allows States to sue based on nothing more than their disagreement with how federal officials prioritize their limited resources in light of real-world constraints—the very choices that the Constitution and federal statutes entrust to the Executive. Allowing States to manufacture Article III standing on the basis of such incidental and attenuated consequences would allow States to assert a seemingly limitless power to embroil the federal courts in reviewing virtually any exercise of discretion by the federal government.

“Seemingly limitless” is code for “no limiting principle.” Later in the brief, the government makes the argument more forcefully:

Most fundamentally, if the incidental and attenuated costs of state services provided to aliens with work authorization were a sufficient basis to enjoin the federal government’s immigration policies, a State could attempt to use similar incidental effects to justify a vast interference with countless exercises of federal immigration enforcement discretion, upsetting both the uniquely federal interest in immigration matters and separation-of-powers principles.

The district court’s driver’s-license theory of standing threatens to radically alter the balance between the States and the federal government contemplated by Article III, particularly, but not exclusively, in the realm of immigration enforcement.

Furthermore, neither plaintiffs nor the court identified any limiting principle that would confine the district court’s conclusion to the realm of immigration.

The brief lists several different actions that the government could take that may be challenged in federal court under this theory of standing:

The court’s rationale risks allowing States to second-guess any federal policy that has some downstream effect on States. Such a theory could invite States to attempt to challenge grants of probation or supervised release for convicted criminals, or federal actions that result in individuals moving from one State to another, or indeed any federal policy that could trigger some service provided by state law. Article III provides no support for such a boundless theory of standing.

The limiting principle is a version of the slippery slope argument–if we allow standing here, then why won’t we allow standing in case X. It is a powerful legal argument that nearly defined the constitutional challenge to Obamacare. Here, the biggest challenge for Texas is not the merits, but why permitting “driver’s license standing” here will not drastically alter the power of states to challenge federal actions. I think there are several possible answers to this question.

First, the initial limiting principle concerns the linkage between the challenged non-enforcement and the claimed injury. The injury asserted by Texas is “fairly traceable to the challenged action,” the government’s non-enforcement. Under Texas law, an alien who is granted the status of deferred action is entitled to a driver’s license, which generates fixed costs for the state. The decision of the United States to grant this lawful status can be considered as  the proximate cause of the injury to Texas. But for the government’s adjustment of the alien’s status, Texas would not be required to offer a driver’s license. The response to this claim is, so what? The federal government adjusts the status of millions of aliens annually, rendering them all eligible for Texas’s driver’s licenses. And all federal policies impact state law, right?

Second, contrary to the government’s assertion, it isn’t true that “any federal policy that could trigger some service provided by state law,” could provide standing under Texas’s theory. Other than immigration, the government musters up a fairly unpersuasive parade of horribles of actions that could trigger standing: “grants of probation or supervised release for convicted criminals, or federal actions that result in individuals moving from one State to another, or indeed any federal policy that could trigger some service provided by state law.” None of these actions fit the mold. The decision of an Article III judge to grant probation, and release a criminal into a community is entirely at odds with the challenged non-enforcement of federal law. Any resulting costs to the state from supervised release of a criminal are attributed to Article III, not Article II. The government also cites “federal actions that result in individuals moving from one State to another” as a possible trigger. I don’t even know what that one means. The Article IV “Privileges or Immunities” clause guarantees movements between states. States cannot discriminate against out-of-staters.

In addition to immigration status, I think veterans status may trigger some benefits under state law. Any others? I think the category is fairly finite. Usually it works the other way around–a change in state status affects some sort of federal benefit. So this slope is not quite as high and steep as the government suggests.

Third, it is important to separate the aggrieved injury for purposes of standing, and the constitutional violation. In virtually every scenario where Texas provides a driver’s license to an alien with some lawful status, the underlying granting of that status was unquestionably lawful. The mere fact that Texas suffered an injury through fixed costs does not provide a substantive cause of action. The cost of providing the driver’s license served as a concrete injury to get into court for purposes of standing. Once there is standing, the plaintiff still must plead *some* cause of action. What will those causes of action be? To the point I made in the previous paragraph, what would the cause of action be when a judge releases a defendant on supervised release? None.

The mere fact that federal inaction inflicts an injury on the state does not mean the government acted unconstitutionally, or contrary to law.  Although state attorneys general are elected positions that relish in suing the federal government (remember Massachusetts v. EPA?), filing a frivolous claim–even with some injury–will quickly be turned away out of court. I suppose that State AGs could continue to file pointless suits based on “driver’s license” standing, but they would be promptly tossed. In this sense, the limiting principle is that the overwhelming majority of instances where inaction creates an injury, will be perfectly lawful. (And by now, you should recognize that Texas’s challenge is not frivolous).

Fourth, a related arguments is that states could pass laws in order to generate standing.  There is certainly a threat that a state could pass a law, knowing full well that some federal policy will conflict with it, in an effort to generate standing. Virginia attempted something like this in 2010, where it enacted a law stating that any federal law that imposed an insurance mandate would trigger an injury which the Commonwealth could challenge in court (I am grossly oversimplifying here). The courts correctly rejected this argument, which bordered on a parens patriae theory of standing, where the state steps to defend the rights of the individual. Here, Texas is not attempting to protect the rights of individuals, but defending an injury it suffers in its sovereign capacity.

Further, the government asserts that the Texas law results in a “self-inflicted injury,” as Texas could change the law to avoid this injury. I think this argument fails for two reasons. First Arizona, which had a similar license regime, attempted to change its law to disqualify DACA beneficiaries from receiving a license. The DOJ intervened, and argued that this classification was unlawful. Now, DOJ has attempted to dial this argument back, and argue that Texas could exempt DAPA beneficiaries, if they do so in a lawful manner. Color me skeptical. Even if this is true–doubtful–several of the party states in this suit are in the 9th Circuit, and are bound by that precedent, so this argument is somewhat unhelpful. In any event, this law existed well before DAPA and DACA, and there can be no argument that Texas colluded to generate standing. Second, I think it would be a radical argument that a state should be required to change its laws in order to avoid an injury from an executive action (that is arguably itself unlawful). Legislation and the police power are the ultimate attribute of sovereignty, and states should and could not be compelled to act in order to prevent a collision with a President’s policies.

Fifth, these cases are going to be very rare. The most common example where local governments will claim to be injured by inaction involve situations where the Executive did not give them the money they were due. In Train v. City of New York, the city sued the Nixon Administration for failing to disburse funds allocated by Congress. In Clinton v. City of New York, the Big Apple sued President Clinton for exercising his line-item veto and not funding local projects. But never before has a state (to my knowledge at least), filed suits alleging a violation of the President’s duty of faithful execution, where a state didn’t expect money. The fact that no state has ever attempted a suit on the scale of Texas’s is unprecedented in and of it self, but also a reflection of how unprecedented DAPA was (as recognized by the OLC memo).

Sixth, another aspect of our standing jurisprudence is that the injury must be “redressable.” This is an important limitation on suits alleging non-enforcement. With respect to the House of Representative’s suit against the Secretary of HHS for failing to enforce the employer mandate, one of the biggest obstacles is redressability. Let’s assume the court finds that the Take Care clause was violated, and the Secretary of HHS failed to discharge his constitutional duty. Then what? Do we have a court order, ordering the Secretary to implement the employer mandate? Would this take the form of mandamus? This hypothetical gives me serious doubts that standing would be appropriate in that case. But in the case of Texas, the scope of relief is really, really narrow. The court would not order the President to do anything! There would be no forced deportations. (Judge Hanen  made this point clear during the stay hearing–the government can engage in the prioritization of removal in the absence of DAPA). Rather, the November 24, 2014 memorandum would be enjoined, and the ex ante status quo would be restored. Then, no licenses would be issued. That’s it. Here, redressability is quite simple, and makes the case for standing stronger.

Seventh, from a policy perspective, suits over injuries to states from non-enforcement may reinforce the separation of powers, rather than frustrate them. Consider Heckler v. Cheney, the canonical non-enforcement case. Here the death row inmate claimed an injury from failing to enforce drug and safety laws for his lethal injection. Although the court found that the policy was non-reviewable under the APA, there was no suggestion that the prisoner lacked a concrete interest for purposes of Article III–he was to be executed with the drugs. In virtually every scenario where the government takes some action, even a related non-enforcement will cause a harmful injury to someone, and that party will have standing.

DAPA presents a different scenario. Rather than the non-enforcement of the law inflicting a harm on individuals–such as Cheney–DAPA provides a benefit. The millions of DAPA beneficiaries stand to gain quasi-lawful presence, work authorization, the earned income tax credit, social security, etc. Not a single individual who is affected positively by this non-enforcement would bring suit.  A similar dynamic applies to other instances of non-enforcement, such as the failure to enforce Obamacare’s individual and employer mandates. Businesses and individuals who are exempted from the payment of penalties will not bring suit. This is the dirty little secret of the Obama Non-Enforcement Doctrine–it’s okay to disregard the law when no one is injured, as the inaction is insulated from judicial review.

I’ve written in several places how this non-enforcement poses an existential threat to the rule of law. In the era of gridlock and non-enforcement, where Presidents can pick and choose what laws they like, and those non-enforcements do inflict injuries on injuries, these challenges can reaffirm the separation of powers, where Congress refuses to. In an article (at some point) I would like to write about the role of State Attorneys General, supporting the “special solicitude” of the states, in bolstering federalism. This Texas suit may be an important development in the doctrine.

These thoughts are still tentative, and I will develop them further. But any challenge here will have to be able to answer the “limiting principle” question.

Read More
Apr 3, 2015

Audio: “The 1st Amendment, 2nd Amendment, and 3D-Printed Guns” at Creighton Law School

On March 19, the Creighton Law School Federalist Society Chapter hosted me for a discussion on 3D-Printed Guns and the Constitution. Here is the audio.

Read More
Apr 3, 2015

Audio: “The 1st Amendment, 2nd Amendment, and 3D-Printed Guns” at NYU Law School

On Thursday, April 2, the NYU Federalist Society Chapter hosted me for a discussion on 3D-Printed Guns and the Constitution. Here is the audio.

IMG_0420

IMG_0421

Read More
Apr 3, 2015

The Government’s Appellant Brief Part II: “Facilitating the Implementation of those Priorities”

This is the second part in my series about the government’s appellant brief in Texas v. United States. Part I is here about the propriety of a “nationwide injunction.”

During oral arguments before Judge Hanen last month, the government lawyer, Kathleen Hartnett, said something she probably shouldn’t have said. Judge Hanen asked whether the Secretary was prohibited from setting his enforcement priorities under his injunction. The correct answer is that he is not. But Hartnet conceded a point that severely undercuts the entire notion that DAPA is solely a matter of enforcement priorities.

Hartnett’s answer to Hanen’s commonsense alternative was striking: The president chose to offer work authorization to millions to “provide an incentive for people to come out and identify themselves.” The lawyer repeated that “work authorization is a large incentive for getting people to be able to come out of the shadows, as it said, and to identify themselves.” In other words, an assurance to not deport an immigrant who is here unlawfully was not a sufficient justification — it was necessary for the president to hand out 5 million new work authorizations. …

She asserted that the “law-enforcement officials that run the Department of Homeland Security had made the judgment that [DAPA was] the right way to get people to come out [and] account for themselves.” But what about the simpler alternative where immigrants are not “bribed”? The government lawyer responded that “I think the judgment has been made that that’s the way that the program would best work.”

The DOJ’s appellant brief makes this point with more finesse, but to the same effect:

The injunction prevents DHS from most effectively allocating its resources regarding removal of aliens to support its paramount mission to protect the Homeland and secure our borders. The 2014 Guidance is an integral part of the Secretary’s efforts to prioritize the removal of aliens who most threaten national security, public safety, and border security. It is no answer to say, as the district court did, that the injunction does not prohibit the Secretary from setting enforcement priorities. The Guidance facilitates the implementation of those priorities. Instead of spending valuable resources determining whether encountered individuals should be prioritized for removal, DHS can rely on deferred action documentation to quickly determine that they should not be. As the highest-ranking official for U.S. Immigration and Customs Enforcement explained, the injunction thus “interferes with the Federal Government’s comprehensive strategy for enforcing our immigration laws.” ROA.4540; see also Arpaio, 27 F. Supp. 3d at 210-11 (“Halting these deferred action programs would inhibit the ability of DHS to focus on its statutorily proscribed enforcement priorities (national security, border security, and public safety)”).

The key language is “The Guidance facilitates the implementation of those priorities.” What does that mean? The argument goes like this.

In order to help Homeland Security agents quickly distinguish dangerous immigrants from those who pose no threat, the president had to grant, he claims, quasi-legal status to 5 million immigrants. Once the immigrants sign up, his argument goes, they will undergo background checks and receive a biometric ID, making it a lot easier for DHS agents to identify them. Oh, and by the way, because halting millions of deportations was not reason enough to coax immigrants to “come out of the shadows,” the president will approve virtually every single applicant for work authorization, Social Security benefits, and even the earned income-tax credit, as an “incentive” to sign up.

The President is using the work authorization–which is permitted by statute and regulation–as an incentive to get people to sign up for deferred action. This is the very sort of policy decision that should be a legislative choice, rather than an executive action. Before DACA, deferred action and work authorization were used on such a small scale. People who were granted deferred action, incidentally were given work authorization. The way DDAPA employs work authorization is not consistent with the type of incentive Congress would want to encourage people to sign up for a policy they did not approve of. The prioritization is, and always has been, a veneer for presidential lawmaking. The goal is to provide a quasi-lawful status for millions, not to make it easier for immigration officials to investigate.

Ultimately, this becomes a case of the tail wagging the dog. It is certainly true, at the margin, that providing 5 million aliens with work authorization, to induce them to provide documentation to the government, will make the jobs of immigration officials easier. I don’t doubt that at all. The question becomes, does the President have such latitude to effectively exempt five million aliens from the scope of the naturalization laws, in order to shorten the amount of time it takes to run a background check.

Now, you may reply that the government can choose to means with which to accomplish legitimate ends. That is certainly true of Congress, but not of the President acting alone.

Since the seminal case of McCulloch v. Maryland, authored by Chief Justice John Marshall, Congress has had wide latitude when choosing how to accomplish its objectives: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” In other words, courts defer to Congress when it chooses one approach over another to accomplish legitimate policy goals.

But we should not lose sight of the fact that DAPA is not an act of Congress, but a unilateral exertion of executive power. Rather than representing the wisdom of Congress — the branch that can set policy — DAPA amounts to a brazen effort to rewrite the law in the president’s own image. The implausible “national security” argument — which is entirely at odds with anything Congress has ever thought of — solidifies the gap between the executive and the legislative branches.

If Congress were to pass a statute that provided work benefits to undocumented immigrants to promote national security, some might doubt its efficacy, but the judiciary would have no license to question its wisdom. DAPA presents an entirely different calculus. To determine whether the president is adhering to his constitutional duty to “take care that the laws be faithfully executed,” we must determine whether the president is acting in good faith to comply with the laws, or deliberately deviating from them to achieve a contrary policy. The president’s own flimsy arguments in court, which crumble under the laxest scrutiny, demonstrate what DAPA is really about. The judiciary need not defer to this tendentious position, and should recognize it for what it is — a mere smokescreen to allow the president to write his own laws.
Promote public safety

To borrow from another area of the law, this bold act of non-enforcement is a “great power” unto itself that cannot be bootstrapped to the more conventional notion of increasing the efficiency of background checks.

I appreciate that the posture of the case primarily concerns the APA Clause, and not the Take Care clause, but as I argued before, the Heckler v. Cheney “complete abdication” test offers a useful framework to think about the President’s duty of faithful action.

Update: I sent this note to a colleague, which I think may clarify the issue:

The issue before Judge Hanen was whether the government could continue to set priorities to protect national security while his injunction was in place. Ostensibly this is the same question that is before the 5th Circuit.

The DAAG explained that the government could not, because the Secretary found that the work authorization–enjoined by Judge Hanen–was needed as an “incentive” to get people to “come out of the shadows” and sign up. The prioritization alone, in the absence of the work authorization, would not be adequate. This was the government’s position, and not a bizarro universe.

If the government had just deferred the deportation of 5 million aliens, without providing the work authorization (and other related benefits), I don’t think it would have been nearly as much of a problem. That approach would more-or-less maintain the status quo we have today where only ~400,000 can be deported annually. But DAPA goes much further, and in my mind crosses the line. It vests them with a host of benefits that amounts to an effort to give them a quasi-lawful status that is beyond anything Congress has ever sanctioned, and will be very difficult politically to ratchet it back. This, in part, is what renders it not in “good faith,” under the “Take Care” clause.

Relatedly, this isn’t controlled by Necessary and Proper, but the bootstrapping argument here reminded me of the Chief’s opinion in NFIB where he held that the Necessary and Proper clause would not reach to a mandate, even if it would make the regulation of the health insurance market more efficient. Ditto here, the President’s decision to alter the status quo for 5 million aliens by giving them quasi-lawful status is not “proper,” even if it makes the immigration system more “convenient,” or makes national security stronger. It is the bootstrapping that crosses the line.

I recognize that we don’t have much caselaw here, and I am offering novel theories, which I gladly concede are not entitled to any deference.

Update 2: Let me try explaining this a different way. The end of giving deferred action and work benefits is not illegitimate, as McConnell argues. Rather the means of how the President has achieved these ends are illegitimate. This is why I brought up the Necessary & Proper doctrine. It may be convenient for the President to implement DAPA in order to make the prioritization more effective, but I think its propriety is judged against the good faith standards of the Take Care clause. Taking the unprecedented step of conferring deferred action + work authorization on millions who have no prospect of a visa, as a means to prioritize aliens and make identification easier, is a case where the lesser power (prioritization) is dwarfed by the greater power of (temporarily) exempting millions from the enforcement power. This is why I use the image of the tail wagging the dog. I discuss the “good faith” standard in my article (which I will be updating shortly when the next round of edits arrive), but the “incentives” argument makes the case for not acting in good faith even stronger.

 

 

Read More
Apr 3, 2015

Audio: “The 1st Amendment, 2nd Amendment, and 3D-Printed Guns” at Brooklyn Law School

On Thursday, April 2, the Brooklyn Law School Federalist Society Chapter hosted me for a discussion on 3D-Printed guns and the Constitution. My good friend Professor Bill Araiza was kind enough to provide comments. Here is audio of the event.

brooklyn-png

 

20150402_125720-1

20150402_131954

20150402_134116

IMG_20150402_134005

Read More
Apr 3, 2015

Video: “Borderline Executive Action: Is President Obama’s Immigration Action Constitutional?” At Rutgers-Newark

On April 1, the Rutgers-Newark Law School hosted a discussion titled “Borderline Executive Action: Is President Obama’s Immigration Action Constitutional?” The event was co-sponsored by the Rutgers-Newark Immigrant Rights Fellows, the Rutgers Chapter of the American Constitution Society, and the Rutgers Federalist Society Chapter. Joining me on the discussion were Prof. Carlos Gonzalez, with Prof. moderating.

It was a fascinating discussion with over 100 people in attendance. There were so many questions we went about 20 minutes over the usual hour-long event. The audio is well worth listening to.


Screen Shot 2015-03-31 at 7.58.56 AM20150401_172108

IMG_2068

IMG_2069

IMG_2071

IMG_2073

 

Read More
Apr 3, 2015

Audio: “ISIS, Immigration, and Obamacare” at NJ Federalist Society Lawyers Chapter

On April 1, Alida Kass of the New Jersey Federalist Society hosted me for a discussion on executive action, with a focus on “ISIS, Immigration, and Obamacare.” If you weren’t there, it’s a Jersey thing, you wouldn’t understand.

nj-fedsoc-event

 

Read More
Apr 2, 2015

The Government’s Appellant Brief Part I: The Nationwide Injunction

In a series of posts, I will discuss several of the arguments raised by the DOJ in its first appellant brief before the DOJ. I note that I filed a brief in the District Court on behalf of Cato, and (in all likelihood) I will also file one in the 5th Circuit.

In this initial post, I will discuss a topic I’ve addressed several times before–whether the district court was correct to issue the nationwide injunction (see here, here, here, here, here, here, and here).

First, the government asserts that Judge Hanen’s nationwide injunction was a “manifest abuse of discretion” because it needs to be narrowly tailored to provide relief to the plaintiffs.

In these circumstances, a nationwide injunction is a manifest abuse of discretion. An injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Lion Health Servs., Inc. v. Sebelius, 635 F3d 693, 703 (5th Cir. 2011); see also Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) (staying nationwide injunction insofar as it “grants relief to persons other than” named plaintiff).

It’s of course true that an injunction should be no more burdensome than necessary, but the precedents cited do not support the government’s claim of a “manifest abuse of discretion.” Califano involved a nationwide class, so that case is not very helpful.

The most direct case would be Meinhold, but that citation is not persuasive. In this case, Meinhold was discharged from the Navy for being gay. (This was before “Don’t Ask Don’t Tell”). In 1992, Judge Hatter for the Central District of California first found that the discharge violated Meinhold’s procedural rights, and ordered that he be reinstated. So far so good. In a subsequent case, decided *only three months later* while the first case was on appeal, Judge Hatter found that the policy banning the exclusion of gays and lesbians from the military violated the Equal Protection “component” of the 5th Amendment. (The opinion was only 5 pages!). At the end of the court’s opinion, Judge Hatter issued a nationwide injunction:

The Department of Defense is permanently enjoined from discharging or denying enlistment to any person based on sexual orientation in the absence of sexual conduct which interferes with the military mission of the armed forces of the United States.Meinhold’s discharge from the United States Navy is rescinded.

On September 30, 1993, the court issued this order:

It is further Ordered, Adjudged and Decreed, that the Department of Defense and its agents, servants, employees and those persons in active participation and concert with it, be, and hereby are, Permanently Enjoined from discharging, changing enlistment status or denying enlistment to any person based on sexual orientation in the absence of proven sexual conduct—if such conduct is proven to interfere with the military mission of the armed forces of the United States.

I suspect the government sought a stay from the 9th Circuit (which I could not find a copy of) and it was denied, so the Solicitor General sought a stay from Circuit Judge O’Connor. On October 29, 1993 (roughly a month later), the Supreme Court without recorded dissent entered this stay:

The application of the Solicitor General for a stay, presented to Justice O’CONNOR and by her referred to the Court, is granted in part. It is ordered that so much of the order of the United States District Court for the Central District of California, No. CV 92-6044 TJH (JRx), filed September 30, 1993, as grants relief to persons other than Volker Keith Meinhold is stayed pending disposition of the appeal by the United States Court of Appeals for the Ninth Circuit. See Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431 (Rehnquist, J., in chambers), motion to vacate stay denied, 464 U.S. 879, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983); id., at 881, 104 S.Ct., at 222, (Stevens, J., dissenting in part). The request for a stay of the portion of the injunction prohibiting the Government from maintaining records pertaining to Meinhold is denied. It is further ordered that the Government can file, under seal, any such documents pending the final outcome of this litigation.

The facts of the Meinhold case do not help the government. This case was brought by one servicemember, challenging his dismissal, and seeking his reinstatement. The court went way overboard, and enjoined the DoD from enforcing the policy against anyone. In order to effectuate the relief Meinhold sought, the scope of the relief would be to reinstate Meinhold. That’s it. No one else was implicated by his dismissal. His relief is in no way necessitated a nationwide injunction.

In sharp, sharp contrast, the relief in Texas v. United States can only be accomplished by a nationwide injunction. The effects of DAPA cannot be limited to one state, or the party states. Immigration policy has a uniformly nationwide effect–by design. If DAPA goes into effect in other states, and a person from one of the other states moves to Texas, and requests a driver’s license, Texas would suffer the injury that cannot be undone.  The government dismisses this “hypothetical”:

Likewise, the hypothetical and even more attenuated possibility that an alien accorded deferred action in another State might move to Texas and apply for a driver’s license does not justify barring implementation in all fifty States to accommodate one.

This isn’t a hypothetical. In our country, people can freely move from state to state (remember the Privileges and Immunities Clause of Article IV, although textually that is limited to “citizens.”) In recent years, the influx of residents from (failing) states like California to (thriving) states like Texas have been well-documented. You can’t put this toothpaste back in the tube. A nationwide injunction is the only mechanism to avoid the irreparable injury. (I will discuss the nature of the injury in a future post).

Further, we are not talking about a suit from a single servicemember who sought his reinstatemnt, but a suit from 26 states, which have a “special solicitude” in the federal courts. If this is the best case the government can dig up, they are on weak ground.

The government also criticized the nationwide injunction on the grounds that the injunction harms “the larger interests of society.”

It must also take account of “the larger interests of society that might be adversely affected by an overly broad injunction.” Envtl. Def. Fund v. Marsh, 651 F.2d 983, 1006 (5th Cir. 1981). The APA’s provisions regarding preliminary injunctions incorporate these principles. See 5 U.S.C. 705 (“to the extent necessary to prevent irreparable injury,” reviewing court “may issue” orders to “preserve status or rights pending conclusion of the review proceedings”) (emphasis added).

Specifically, the government urges the court to consider how the injunction “harms non-parties.”

These principles apply with greater force where, as here, the scope of the relief harms non-parties.

No citation follows that sentence because no such citation exists. Here, the government is hinting (but not expressly adopting) that because immigrants benefit the non-party states, the injunction should be stayed. This argument was made by the Solicitor General of Washington to argue that any costs of immigration for purposes of standing are offset by the benefits of immigration in terms of economic productivity. This is a non-sequitur in the standing context–a $1 injury is not offset by a $1 benefit.

This argument is even less availing in the context of the stay. The question of harm does not concern the non-party states, but the federal government itself. The United States must show that it–not the other states–will suffer an injury if DAPA cannot go into effect immediately. The government explains that it has already invested a lot of time and money into planning DAPA. Big deal. They hinted in their previous papers that enjoining DAPA will harm national security, but they dialed back on that argument, which I didn’t think was very effective (this is the first brief authored by DOJ Civil Appellate, and it is much stronger than the district court briefs).

In any event, while nationwide injunctions are really broad, and should be judiciously implemented, I think it was appropriate here to safeguard the relief of the states.

Update: This is the government’s merits brief, not the say brief. The post has been updated.

Read More
Apr 2, 2015

Audio: Interview on John Gibson Show on Fox News Radio about Indiana RFRA

On April 1, I appeared as a guest on the John Gibson Show on Fox News Radio to discuss Indiana’s RFRA. Here is the audio.

Read More
Apr 2, 2015

Audio: Interview on David Medeira Show to Discuss Indiana Religious Freedom Law

On April 1, I appeared on the David Medeira Show to discuss the Indiana Religious Freedom Law. I come up at the start of the program below.

Read More
Apr 1, 2015

Breaking News: NY Baker Refuses to Bake Cake For Same-Sex Wedding

I’ve received reports that a baker in upstate New York has refused to bake a cake for a same-sex wedding. Because New York does not have a RFRA, he is planning on raising a defense based on the Liberty of Contract protected by the 14th Amendment’s Due Process Clause. The name of the baker has not yet been released, but I’ve obtained a photographs of him, his workers, and his bakery. Stay tuned for more details.

joseph-lochner

lochners-bakery

 

bakery1

 

 

Read More
Apr 1, 2015

Roundup of Media Coverage on Indiana RFRA

Here is a roundup of my recent media coverage on the Indiana RFRA:

Quoted in “Indiana Law: Sorting Fact From Fiction From Politics,” NPR, April 1, 2015.

So, in other words, while the federal law states that a person can sue the governmentfor a grievance, Indiana makes a point of stating that it doesn’t matter if government is involved.

Josh Blackman, a constitutional law professor at South Texas College, notes in National Review that while some read the federal provision as pertaining only to government, it has actually split federal courts. “Private parties,” he points out, “had brought suits against corporations.”

For example: “[T]he D.C. Circuit held that the Catholic University of America could raise RFRA as a defense against a sex-discrimination claim brought by a nun and the Equal Employment Opportunity Commission alike.”

That said, the Indiana law explicitly wipes away any ambiguity.

Quoted in “Things you haven’t considered about Indiana’s religious freedom law,” CNN.com, April 1, 2015.

These concerns are based on speculation of what might happen, said Josh Blackman, a constitutional law professor at South Texas College of Law.

Yes, the Indiana law makes it clear that individuals and private companies can use the religious freedom law as a defense, he said. “But, just because you raise the defense does not mean it will be successful.”

Those who try to defend their discriminatory actions in court tend to lose, Blackman said. In his opinion, if Elane Photography had been able to use the law as a defense in New Mexico, it still likely would have lost the case.

What’s clear is that Indiana’s law increases the potential pool of people who can defend themselves claiming religious freedom. The success of such arguments is to be seen.

Quoted in “Conservatives Push Back Against Indiana Boycotters, But Is It Enough?,” Bloomberg Politics, April 1, 2015.

Progressives lighting their torches and throwing them at the Hoosier state simply don’t understand the law. “Indiana’s RFRA does no more than codify that the private enforcement of public laws—such as discrimination claims — can be defended if there is a substantial burden on free exercise of religion,” writes Josh Blackman in National Review. “That’s it. And again, until recently, this provision was not particularly controversial.”

Quoted in “Indiana Governor Wants to Clarify Religious Freedom Law,” The Wall Street Journal, April 1, 2015.

“The Indiana law just makes explicit…that this is an available shield that a business can use to defend itself,” said Josh Blackman, a constitutional-law expert and law professor at the South Texas College of Law.

Guest on John Gibson Show to discuss Indiana Religious Freedom Law, Fox News Radio, April 1, 2015.

Guest on David Medeira Show to discuss Indiana Religious Freedom Law, 94.3 FM Scranton, April 1, 2015.

Quoted in “How Indiana’s religious freedom law sparked a battle over LGBT rights,” Vox, March 31, 2015.

Indiana’s law, which goes into effect on July 1, goes further in one significant way than traditional RFRA laws. As South Texas College of Law professor Josh Blackman explained in a blog post, it’s unclear — and varies from court to court — whether the federal RFRA can be cited as a defense in lawsuits in which the government isn’t one of the parties involved. But Indiana’s law explicitly states that a person can cite the state’s RFRA in private lawsuits in which the government isn’t a party. That means someone could cite Indiana’s RFRA as a defense in a private lawsuit, instead of just legal disputes with governments.

Guest on “Laura Ingraham Radio Show” to discuss Indiana Religious Freedom Law, March 30, 2015.

Quoted in “Obama attacks Indiana religious freedom law, but backed Illinois bill as state senator,” The Washington Times, March 30, 2015.

Quoted in “The Economics of Religious Freedom Bills,” The Atlantic, March 27, 2015.

I will update this throughout the course of the day. No fooling.

Read More
Apr 1, 2015

Stigmatizing Mental Illness

The Times has a story about Andreas Lubitz, the pilot of the Germanwings flight, and whether his mental illness contributed to what by all accounts is a horrific mass killing. The article focuses on how stigmatizing his mental illness could have wide-ranging collateral consequences, with direct references to gun violence.

The co-pilot, Andreas Lubitz, would not be the first aviator to hide the fact that he was having psychiatric difficulties or that he had received mental health treatment.

The reluctance to come forward means that airlines, health professionals and regulators must strike a delicate balance, trying to decrease stigma to encourage pilots to be honest about their problems, while at the same time drawing a firm line beyond which pilots are grounded to protect the public’s safety.

Such issues surrounding mental health are familiar territory in the United States, where a series of mass shootings, including those in Newtown, Conn., and Aurora, Colo., riveted the public’s attention on the responsibilities of therapists who treat the mentally ill.

After the Newtown massacre in 2012, several states, including New York and Connecticut, changed their laws, broadening the circumstances under which mental health professionals can report a potentially violent patient without fear of legal repercussions. Under the New York law, they are required to report to local health officials those who are “likely to engage in conduct that would result in serious harm to themselves or others.”

But those laws remain controversial. And many mental health experts say that the tendency to link mass violence and mental disorders has a negative effect, discouraging people from seeking treatment.

“These kind of stories reinforce the anxiety, the doubts, the concerns that people have that ‘I have to keep my symptoms concealed at all costs,’ and that doesn’t benefit anyone,” said Ron Honberg, director of policy and legal affairs at the National Alliance on Mental Illness.

I’ve previously discussed that one of the perverse aspects of laws making it easier to take guns away from those with mental illness is that it stigmatizes the patient, and makes it less likely that they will report their condition to mental health professionals. Putting aside for the moment that the overwhelming majority of people with mental illness are not violent, doctors have expressed great concern about regimes like New York, where people can be disarmed without any process.

There are no simple answers to people inflicting unimaginable harm to others.

Read More
Mar 31, 2015

Justice Scalia: When Reading Long Documents Violates The 8th Amendment

During oral argument in Brumfield v. Cain, Justice Scalia noted that he would not read the entire 20-volume record in this 8th Amendment death penalty case.

JUSTICE SCALIA: I haven’t read the whole record, you know, and I doubt that I’m going to. And I doubt that this Court is going to read the whole record in all of these Atkins cases in the future. I mean, what you’re saying is … you don’t think it’s fantastical?

This isn’t Justice Scalia’s first brush with lengthy reading and the 8th Amendment. Recall his comments to Deputy SG Kneedler during the Obamacare oral arguments?

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

There you have it. Reading long documents violates the 8th Amendment, except where failing to do so would itself violate the 8th Amendment.

Read More
Mar 31, 2015

Could Indiana Block Corporations From Using Corporate Money To Criticize RFRA?

Today, the CEOs of nine corporations sent a letter to Indian Governor Mike Pence, urging him to modify or clarify RFRA. Yesterday, Apple CEO Tim Cook published an Op-Ed in the Washington Post, expressing his dismay with RFRA. (He stopped short of closing all Apple Stores in Indiana and all other states with RFRAs –he would be removed by his shareholders for doing so–and said nothing about Apple’s continued business with China, a horrific violator of every human right imaginable).

These letters and editorials were all signed by the CEOs in their corporate capacity. They were no doubt written using computers paid for by corporate funds, on company time, were likely edited by other employees of the corporation, and were likely marketed by other employees of the corporation. Every word of these letters were products of corporate speech.  Yes, imagine that. Cook could have written the Op-Ed in his individual capacity–but doing so would be harder than you think. He would have to use a computer he purchased from his personal funds, could not involve any Apple employees in proof-reading, editing, and publicizing the letter. Separating these two pots of money is harder than you think–compliance costs are expensive and time-consuming. And I doubt the Washington Post would publish an editorial if he refused to be identified as the executive of Apple.

I have absolutely no problem with these socially-conscience corporations expressing their views on laws, and seeking legislative change. I think these activities are, and should be protected by the First Amendment. But, not everyone agrees. If we take seriously the meme that “corporations are not people,” Indiana, or any other state, could pass a law that prohibits corporations from spending any corporate funds to criticize the government. If you wish to petition for a redress of grievances, the law would state, do so in your individual capacity. You cannot do so with any corporate funds. Corporations are not people!

Think of Citizens United–the government sough to block a group from releasing a movie during the election season if it was paid for by corporate funds! You are welcome to direct, produce, edit, and market the movie by yourself–just like Tim Cook could have written the op-ed with his personal resources.

Corporations are a group of people who assemble to achieve a common goal. Some of these goals may implicate criticizing government or candidates. Apple, and Citizens United alike, should be afforded First Amendment rights.

This is not to say there are no limits on spending and the like, but the threshold question of whether corporations should be allowed to speak is easy.

Read More
Mar 31, 2015

Events this week in New York and New Jersey on Immigration, Executive Power, and 3D-Printed Guns

After a brief lull, I am hitting the road again. On Wednesday at 4:00 I am speaking on a panel at Rutgers University-Newark on the constitutionality of the President’s executive actions on immigration. Joining me will be Prof. Carlos Gonzalez. Later on Wednesday at 6:30 I  am speaking to the New Jersey Federalist Society on the constitutionality of the President’s executive actions on immigration. The event will be at the Morris Museum in Morristown.

On Thursday, I have a 3D-printed gun double header. First, at 12:45 at Brooklyn Law School, with commentary by Prof. Bill Araiza. Second, at 4:00 I am speaking at NYU Law School on the same topic.

All events are sponsored by the Federalist Society, and are open to the public. See you there!

NYU-Flyer-png brooklyn-png

Read More
Mar 31, 2015

ConLaw Class 20 – Substantive Due Process and Economic Liberty

The lecture notes are here. The live chat is here.

Substantive Due Process and Economic Liberty

  • Due Process of Law (1443-1444).
  • Due Process and Separation of Powers (1444-1446).
  • Substantive due process (1463-1464).
  • Lochner v. New York (1465-1473).
  • West Coast Hotel v. Parrish (1473-1476).
  • Rehabilitating Lochner, by David Bernstein

Lochner v. New York

Standing on the right is Joseph Lochner.

joseph-lochner

Here are photographs of Lochner’s bakery in Utica, New York.

lochner-bakery

lochners-bakery

 

Here is the cover of a recent book aimed at rehabilitating Lochner, which depicts Justice Rufus Pekham, author of the majority opinion, knocking out Justice Oliver Wendell Holmes, author of the famous dissent.
rehabilitating-lochner

 

Through sleuthing at the Oneida County Clerk’s Office, I discovered this advertisement for Lochner’s bakery. According to the ad, Lochner’s Home Bakery “is one of the oldest and most reliable bakeries in Central New York. We pride ourself on Uniformity, Purity, Cleanliness.”

Advertisement for Lochner's Home Bakery - Harlan Institute for Constitutional Studies

Muller v. Oregon

Here is the Lace House Laundry from Muller v. Oregon.

muller-oregon

Here are workers inside the Lace House Laundry, courtesy of the Oregon Historical Society.

Muller-workers

West Coast Hotel v. Parish

This is the West Coast Hotel is Wenatchee, Washington.

West-Coast-Hotel

United States v. Carolene Products

First, here is Carolene Product’s famous footnote four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722Grosjean v. American Press Co., 297 U.S. 233Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369Fiske v. Kansas, 274 U.S. 380Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390Bartels v. Iowa, 262 U.S. 404Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supraNixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.

I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.

As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”

 

Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.

2014-03-09 13.13.57

20140309_131429

 

Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.

 

20140309_131232

Who want’s some frizzled dried beef or baked ham slice?

As well, here is the history of the Carolene Products company from MilnotMilk.com, with some interesting photos.

hauser

creamery

equip

equip2
milnut

MilnotEvaporated425

 

The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).

seneca-plant

Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.

Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.

Charles Hauser pardon0001

Read More
Mar 30, 2015

RFRA, “Minority Religions,” and “Collective Liberty”

Howard Friedman offers several reasons why Indiana’s RFRA is so much more controversial than its 1993 federal counterpart. His second rationale crystalized why Indiana’s law has created such an outrage!

Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents.  Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.

Dale Carpenter expressed a similar sentiment:

What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.

In my abstract for “Collective Liberty” (which just got a shot of new material), I stated the issue almost the exact same way:

Second, with respect to free exercise, we have witnesses a bold transformation of the Religious Freedom Restoration Act (“RFRA”). Introduced in Congress by Senators Kennedy and Rep. Schumer, and signed into law by President Clinton in 1993, RFRA was designed as a legislative override of Justice Scalia’s unpopular decision in Employment Division v. Smith. The law was designed as a shield to protect religious minorities, such as Native Americans who use sacramental peyote, from laws that infringe on their exercise. Fast­forward two decades, and RFRA is now wielded as a sword to enforce the religious identities of corporations, that cannot be burdened by the Affordable Care Act’s contraceptives mandate. In her dissent in Burwell v. Hobby Lobby, Justice Ginsburg highlighted the divide, focusing on how the Court’s accommodation of the religious liberties of Hobby Lobby would have an impact on “thousands of women” “who do not share the corporation owners’ religious faith.” For Ginsburg, the collective needs of society for covered contraception easily trumps religious liberty. The majority, which grudgingly conceded that covering contraception was a compelling interest, viewed the calculus exactly backwards.

A similar argument could be made about Free Speech, which many progressive would also argue was hijacked by the right. Come to think of it, that is the other theme of “Collective Liberty.”

Historically, liberals tended to favor broad conceptions of individual rights, with respect to protecting unconventional and unpopular speech, minority religious groups, and the right to private association. Conservatives, in contrast, often opposed such rights to the extent they impeded the preservation of traditional social norms. But in recent years there has been a reversal, as the right has co­opted the mantle of individual liberty against claims of governmental intrusion into their time­honored institutions. But for the left, a robust freedom of speech, religion, and association­­no longer serving the causes of social justice­­can now more easily be subordinated to the “generalized conception of the public good.”

First, with respect to free speech, the progressive preference for collective liberty is evident in the ACLU’s decision not to file a brief in McCutcheon, reflecting a divide among its members. As Floyd Abrams opined, the dissent offers a “very troubling vision of free expression” and is “deeply disquieting.” With respect to speech, modern­day liberalism seems to be drifting away from protecting individual freedom, and more towards constitutionally guaranteeing equality. Conservatives seize on expanded speech rights to repel this creeping control.

This paper got even more timely than I expected. My draft is due to the Floyd Abrams conference at YLS at 4/14, so I will have something by then (one way or the other).

Update: The NY Times makes the same point:

When the federal government adopted a religious protection act in 1993,same-sex marriage was not on the horizon.

An informal coalition of liberals and conservatives endorsed the Religious Freedom Restoration Act because it seemed to protect members of vulnerable religious minorities from punishment for the exercise of their beliefs. The federal legislation was set off by a case involving Native Americans who were fired and denied unemployment benefits because they took part in ceremonies with peyote, an illegal drug.

Twenty states, including Indiana last week, have since passed their own versions of religious freedom laws.

But over time, court decisions and conservative legal initiatives started to change the meaning of those laws, according to liberal activists. The state laws were not used to protect minorities, these critics say, but to allow some religious groups to undermine the rights of women, gays and lesbians or other groups.

 “The coalition broke apart over the civil rights issues,” said Eunice Rho, a lawyer for the American Civil Liberties Union. The organization, which initially supported the measures, now opposes them unless they include language ensuring that they will not be used to permit discrimination or harm.

In a January decision, the Supreme Court ruled that under the 1993 law, a Muslim man in federal prison could keep a short beard.

That is a prototypical example of what most saw as the original purpose of the act, said Katherine M. Franke, the faculty director of the Public Rights/Private Conscience Project at Columbia Law School.

Update: More from Prof. Mark DeGirolami:

Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter’s recent post: “What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.”

One might have thought, even relatively recently, that religious freedom was a “civil right.” But no longer: it is now said to be the enemy of “civil rights.” And I suppose that what is “weaponized” will depend on one’s perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state’s interest in vindicating specific sorts of dignitarian harms, that have been “weaponized.” But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.

Here’s how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I’ll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):

The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.

Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.

Update: More from Rick Garnett:

 Following up on Marc’s response to Dale Carpenter’s post on the “weaponization” of RFRA:  Dale expresses concern about RFRA-type laws being used as a “sword against civil rights.”  It is not my impression that those of us who support RFRA-type accommodation regimes expect or want them to be used in such a way.

As I see it — and as I tried to set out in this short forthcoming paper — the conversation about how to manage the conflict between some religious-liberty claims and some equality and non-discrimination claims has to proceed from an appreciation for the facts that “religious liberty” *is* a civil right and that the enterprise of protecting civil rights includes — it has to include — care for religious liberty.

I think Rick is right that Progressives have shifted away from looking at religion (and I would argue speech) as a civil right unto itself. The goal is to achieve equality, and liberty is a secondary concern, to the extent that it gets in the way of “social justice.” This is the crystallization of Justice Breyer’s vision of “collective speech.”

Update: John McGinnis addresses the “minority” religion argument:

The New York Times distinguishes the past operation of the federal religious freedom lawby complaining that while it once protected religious minorities it currently protects conservative Christians. But conservative Christians now are a religious minority and a dwindling one at that.

Now there are other arguments against religious freedom legislation, state and federal, but social changes in the last two decades show that that complaints recently expressed about such protections are less pragmatic than ideological– less about assuring gays and lesbians access to services and more about making sure that the state can penalize minorities for acting on religious beliefs that the majority abominates.

Speaking of minority religions, the Times offers this preview of religiosity in the United States in the next 50 years.

In the United States, the spread of secularism will probably continue: Those who claim no religion will make up about a quarter of the population by 2050 — an increase from 16 percent in 2010. Christianity will have the biggest losses, with its share of the American population declining to 66 percent in 2050 from 78 percent in 2010, according to the projections in the report.

The number of Muslims in the United States will surpass that of Jews (at least those who claim “Jewish” as their religious identity) by 2035, but both groups will remain tiny portions of the American religious landscape, Conrad Hackett, the lead researcher and demographer for the Pew report, said in an interview.

Read More
Mar 30, 2015

Discussion of Indiana RFRA on Laura Ingraham Show

Here is audio of my interview on the Laura Ingraham show discussing the Indiana RFRA.

Read More