Jun 16, 2016

New in WaPo: The government can’t make you use ‘zhir’ or ‘ze’ in place of ‘she’ and ‘he’

The Washington Post’s In Theory blog invites thinkers to contribute to a symposium on various big ideas. This week, the series focuses on transgender people and the law. My contribution was based on a post I wrote in December about compelled speech and pronouns.

Here is the introduction:

The New York City Commission on Human Rights recently announced that employers, landlords and other professionals are required to use a transgender person’s preferred pronoun “regardless of the individual’s sex assigned at birth.” The Equal Employment Opportunity Commission similarly determined that failing to use a person’s preferred pronoun could violate federal anti-discrimination laws.

Though these mandates may seem like acts of civility, they in effect impose ideas about gender identity on speakers. Requiring people to voice beliefs that they do not hold, or even understand, is a flagrant and unacceptable violation of the freedom of speech.

To address what I see as expected critiques, I offer several distinctions of why this unprecedented pronoun mandate is different from other laws regulating harassment (doctrine that is in serious tension with the First Amendment):

With respect to transgender nomenclature, critics may counter that refusing to use a person’s preferred pronoun amounts to harassment and is no different from using a slur. There are at least three critical distinctions. First, derogatory slurs exist in the vernacular for a specific reason: to be derogatory. The same cannot be said for pronouns, which have existed in language since time immemorial as a benign shorthand to identify people. Imposing a mandate that millennia-old nomenclature is now harassment is a bridge too far. Furthermore, unlike laws regulating the definition of marriage, the state has never played any role in granting its imprimatur to language one way or the other. New York’s unprecedented pronoun mandate is the first instance of the government dictating speech.

Second, while a non-binary view of gender may be orthodoxy in certain segments of society, a near-majority of Americans reject it as a fact of life. A recent CBS News/New York Times poll asked about which public bathroom transgender people should be allowed to use. Forty-six percent responded that they “should have to use the public bathrooms of the gender they were born as.” Forty-one percent responded that they “should be allowed to use the public bathrooms of the gender they identify with.” Imposing an idea on 46 percent of Americans who do not hold that belief cannot be reconciled with the marketplace of ideas guarded by our First Amendment.

Third, there is a subtle but critical line between promoting tolerance and controlling thought. UCLA Law Professor Eugene Volokh explained that the New York law “requir[es] people to actually say words that convey a message of approval of the view that gender is a matter of self-perception rather than anatomy.” As the polling suggests, reasonable minds disagree about sex and gender identity. Requiring everyone to adopt a new vernacular ends any debate.

I close by noting the staggering implications of this mandate–it forces on people ideas about gender identity they do not hold. It is frankly Orwellian.

The notion that the state can now control language is reminiscent of “Newspeak,” the fictional language in the dystopian classic “1984.” Taking a page from Orwell, the Big Apple actually requires speakers to use the inventedgender-free pronoun “ze,” a word that does not appear in fivedifferentdictionariesIchecked. A future version of this regime could potentially outlaw gendered pronouns altogether, so as to accommodate gender-fluid individuals. Taken to its natural conclusion, this effort to promote tolerance is frighteningly intolerant. . . .

This Orwellian tactic is not the way to change hearts and minds. New York should go back to the drawing board and draft up a more inclusive way of being more inclusive.

The government cannot force a Jehova’s Witness student to salute the flag, or recite the pledge of allegiance, because the student does not hold those beliefs. Justice Robert Jackson’s timeless wisdom should not be forgotten:

“If there is any fixed star in our constitutional constellation,” wrote Justice Robert Jackson, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”

Read More
Jun 16, 2016

#SCOTUS Applies “Capable of Repetition, yet Evading Review” standard for “Short-Term Contracts”

One of the wrinkles of Article III is that the Court will grant standing to parties without live injuries, so long as the problem is one that is “capable of repetition, yet evading review.” The primary involves abortion cases, as gestation lasts (at most) 9 months. An appeal to the Supreme Court will always take longer than this period. Thus, the Court will find standing for a plaintiff who is no longer pregnant (such as Norma McCorvey, better known as Jane Roe), because otherwise the case in controversy can never be adjudicated.

The Court applied this standard in Kingdomware Technologies, Inc. v. United States. In this, the government rejected petitioner’s bid for a contract, and chose another provider. The losing party challenged the denial in court, seeking injunctive relief. During the pendency of the litigation, the project was completed. As a result, the courts could no longer order the government to hire petitioners, because the job was already done! To dodge this thorny mootness issue, Justice Thomas’s majority opinion turn to the old “capable of repetition, yet evading” review standard.

As a result, no court can enjoin further performance of those services or solicit new bids for the performance of those services. And declaratory relief would have no effect here with respect to the present procurements because the services have already been rendered. Although a case would generally be moot in such cir­ cumstances, this Court’s precedents recognize an excep­ tion to the mootness doctrine for a controversy that is “ ‘capable of repetition, yet evading review.’ ” Spencer v. Kemna, 523 U. S. 1, 17 (1998). That exception applies “only in exceptional situations,” where (1) “the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,” and (2) “there [is] a rea­ sonable expectation that the same complaining party [will] be subject to the same action again.” Ibid. (internal quota­ tion marks omitted; brackets in original).

The standard is appropriate here for “short-term contracts,” which do not permit enough time for courts to review their lawfulness.

That exception applies to these short-term contracts. First, the procurements were fully performed in less than two years after they were awarded. We have previously held that a period of two years is too short to complete judicial review of the lawfulness of the procurement. See Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 514– 516 (1911).

Justice McKenna does not get cited very often, but Southern Pacific was the first instance of the mootness doctrine.

This court has said a number of times that it will only decide actual controversies, and if, pending an appeal, something occurs, without any fault of the defendant, which renders it impossible, if our decision should be in favor of the plaintiff, to grant him effectual relief, the appeal will be dismissed. Jones v. Montague, 194 U. S. 147, 48 L. ed. 913, 24 Sup. Ct. Rep. 611, and Richardson v. McChesney, decided November 28 of this term, 218 U. S. 487, 54 L. ed. 1121, 31 Sup. Ct. Rep. 43. But in those cases the acts sought to be enjoined had been completely executed, and *515 there was nothing that the judgment of the court, if the suits had been entertained, could have affected. The case at bar comes within the rule announced in United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 308, 41 L. ed. 1007, 1016, 17 Sup. Ct. Rep. 540, and Boise City Irrig. & Land Co. v. Clark (C. C. App. 9th C.) 65 C. C. A. 399, 131 Fed. 415.

In the case at bar the order of the Commission may to some extent (the exact extent it is unnecessary to define) be the basis of further proceedings. But there is a broader consideration. The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar), and these considerations ought not to be, as they might be, defeated, by shortterms orders, capable of repetition, yet evading review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress.

Thomas concludes:

Thus, we have jurisdiction because the same legal issue in this case is likely to recur in future controversies between the same parties in circumstances where the period of contract performance is too short to allow full judicial review before performance is complete.


Read More
Jun 16, 2016

Professor Kagan’s Multiple Choice Question at #SCOTUS

Justice Kagan spices up her majority opinion in Kirtsaeng v. John Wiley & Sons, Inc, an otherwise mundane attorney’s fees case, with a multiple choice question.

Imagine you are Kirtsaeng at a key moment in his case—say, when deciding whether to petition this Court for certiorari. And suppose (as Kirtsaeng now wishes) that the prevailing party in a hard and important case—like this one—will probably get a fee award. Does that make you more likely to file, because you will recoup your own fees if you win? Or less likely to file, because you will foot Wiley’s bills if you lose? Here are some answers to choose from (recalling that you cannot confidently predict which way the Court will rule): (A) Six of one, half a dozen of the other. (B) Depends if I’m feeling lucky that day. (C) Less likely—this is getting scary; who knows how much money Wiley will spend on Supreme Court lawyers? (D) More likely—the higher the stakes, the greater the rush. Only if lots of people answer (D) will Kirtsaeng’s standard work in the way advertised. Maybe. But then again, maybe not.

For those of us who haven’t finished grading, this is a gentle reminder from the former Dean to get your grades in.

Read More
Jun 15, 2016

NY Times Room for Debate: The Supreme Court Has Strengthened Gun Rights and Limited Gun Control

The New York Times Room for Debate invited me to submit a contribution on the impact of Heller and McDonald on the power of the government to enact gun control laws. I concede that the precedents have had a limited effect on legislative efforts, but the cases have altered our constitutional culture.

In 2008, the Supreme Court affirmed in District of Columbia v. Heller that a federal handgun ban violates the Second Amendment. Two years later in McDonald v. Chicago, the justices held that state and local governments also could not prohibit handguns. Over the last six years, a bevy of challenges have been filed against various firearm laws. For the most part, the lower courts of appeal have upheld them. On appeal, the gun-shy Supreme Court has refused to intervene in every Second Amendment case since McDonald. In December 2015, Justices Thomas and Scalia castigated their colleagues’ complacency, as the inferior courts “relegat[ed] the Second Amendment to a second-class right.”

In light of this track record, many scholars contend that court’s interpretation of the Second Amendment has not had a meaningful effect on gun control regulations, beyond invalidating handgun bans in Chicago and the nation’s capital. This perspective misses the forest for the trees. Heller and McDonald, and the two-decade process that led to those landmark cases, have revolutionized our constitutional culture in profound ways.

Three decades ago there was a wide-ranging consensus that the antiquated Second Amendment only secured the right of states to maintain militias, and in no way affected gun control laws. Chief Justice Warren Burger, in a now famous 1990 interview in Parade Magazine, wrote that the idea that there was an individual right to keep and bear arms was a “fraud.” But following the powerful research of scholars like Don B. Kates Jr.,Sanford Levinsonand others, the history of the Second Amendment came back into focus: The two-century old provision guarantees a right of individuals, unconnected with militia service, to bear arms.

Today, despite contentious Supreme Court decisions, and rancorous public debates, politicians across the spectrum now acknowledge the power of the Second Amendment. Hillary Clinton recently said, “I believe law-abiding, responsible Americans have a right to own guns.” Then-Senator Barack Obama likewise acknowledged, “I believe that the Constitution confers an individual right to bear arms,” and said he “never favored an all-out ban on handguns.” Both politicians then promptly endorsed “reasonable” gun control measures, but their admission of the right is a testament to our restored constitutional paradigm.

There was a time when the only constraint on firearm restrictions was the popular will. Now, with Heller and McDonald on the books, legislatures must also contend with the Constitution. This altered dynamic is illustrated by the constitutional challenge to New York’s post-Sandy Hook gun laws. A federal judge in Buffalo upheld the SAFE Act’s assault weapon registry and prohibition of magazines that hold more than 10 bullets. But the court invalidated the requirement that only seven bullets could be loaded into a ten-bullet magazine. “It stretches the bounds of this court’s deference to the predictive judgments of the legislature,” Judge William Skretny wrote, “to suppose that those intent on doing harm (whom, of course, the act is aimed to stop) will load their weapon with only the permitted seven rounds.” In other words, the fanciful law makes no sense — as it will never be followed by malefactors — and doesn’t pass constitutional muster.

Legislatures, take note. Even if the lower courts routinely — and in my estimation erroneously — uphold gun control measures, Heller and McDonald still require the government to ensure that laws actually promote public safety, and are not merely arbitrary and undue burdens to the right to bear arms.


Read More
Jun 15, 2016

Video: “Trump’s Constitution of One” at the Houston Pachyderm Club

On Tuesday, I spoke to the Greater Houston Pachyderm Club about my article in National Review, “Trump’s Constitution of One.” The audience was different from my typical haunt, and I tried to convey a few points for the political crowd. First, I conceded that with respect to judges, Trump will likely be better than Clinton. (I discuss the risk of cronyism, but so long as the “Federalist people” are advising him, it will be on average more optimal than the “ACS people” advising Clinton). Second, I explained that judges are not everything–even SCOTUS–and there are far more critical issues to think about. Third, I said that if Trump is elected, conservatives should hold his feet to the fire to criticize him when he runs afoul of the law (which he certainly would), and not become complacent when executive abuses yield favorable policy outcomes. (In other words, don’t get drunk with power).

Here is video of the event.

Read More
Jun 15, 2016

ConLaw Exam Question – Write a Dissent for Justice Harlan to a Justice Holmes Majority Opinion

Here is the first question from my Spring 2016 Constitutional Law Exam. The premise is that you are a law clerk for Justice John Marshall Harlan in 1905, and you have to write a dissent from an opinion by Justice Holmes. Much of the Holmes opinion is cribbed from some of Ollie’s greatest hits. You can find the A+ answer.

Instructions: The year is 1905. You are a law clerk to Justice John Marshall Harlan. Justice Oliver Wendell Holmes has circulated a draft majority opinion in the case of In Re Puerto Rico. This case considers a number of constitutional challenges arising from four ordinances enacted by the Governor of the newly-created U.S. Territory of Puerto Rico. (There are no jurisdictional defects that would prevent the Court from hearing these appeals, and the Governor has the necessary statutory authority to enact the ordinances in the federal territory). Justice Harlan has announced that he will not join the majority opinion, and asked you to prepare a memorandum that will assist him with writing the dissent. The memorandum should be no more than 1,000 words, focusing on 5 specific issues you are asked to address. Please number each section separately to make it easier for Justice Harlan to review your answer. (For purposes of this exam, please assume that Congress by statute has extended the protections of the entire Constitution to the federal territory of Puerto Rico. In reality, Congress to this day has not extended the entire Constitution to Puerto Rico, and the Supreme Court has held that the Constitution does not “follow the flag.” See the Insular Cases).

October Term, 1905




In Re Puerto Rico


MR. JUSTICE HOLMES delivered the opinion of the Court.



Following the conclusion of the Spanish-American War in 1898, the United States acquired Puerto Rico from the Kingdom of Spain. The federal territory was placed under the rule of a Territorial Governor. This case arises from constitutional challenges to four ordinances enacted by the Governor. The Court finds these claims are without merit, and the appeals are dismissed.




Prior to the Spanish-American War, Spain only allowed male citizens over the age of 21 who were born in Spain to run for office in Puerto Rico. This policy excluded all native-born Puerto Ricans from being on the ballot.


After the war, the Governor enacted Ordinance #1, which provided that all people who have already been on the ballot before 1905 would remain eligible for life to run for future offices. However, new candidates for office would face “severer tests,” including examinations to ensure English literacy and general knowledge of civics. The Court acknowledges that these new criteria may exclude, perhaps, a large part of Puerto Rican candidates for office.


Martin, a native-born Puerto Rican seeks to run for a seat in the legislature. However, he only speaks Spanish, and is unable to pass the English literacy test. He files suit, seeking an injunction to place him on the list of approved individuals who can be on the ballot, and run for office.


It seems eminently reasonable to the Court that a Legislator in an American territory must possess a minimal competency in the English language, and be familiar with our customs and systems of government.


Furthermore, an alternate holding would require the federal courts to closely supervise this government, and all governments over what are political wrongs. If indeed this system is unconstitutional, how can we make the court a party to the unlawful scheme by accepting it and adding another candidate to its fraudulent lists. It is impossible simply to shut our eyes, put Martin on the ballot, be it honest or fraudulent, and leave the determination of the fundamental question for the future.


Martin’s appeal is dismissed.




The Governor determined that the birth rate on Puerto Rico was too high, and that families were growing too quickly for the economy to sustain. There were already food shortages, and foreign investments in the Island were plummeting. He decided to take decisive action to promote the general welfare. He issued Ordinance #2, providing that all men who had already fathered at least one child were required to use condoms whenever they engaged in sexual intercourse. The failure to use a condom, which the government distributed at no cost, would result in a $100 fine and 6 months in prison. Shortly after the ordinance is issued, Cary—the father of two children—is arrested, and convicted for engaging in unprotected sexual intercourse with his wife.


Cary challenged his conviction on the ground that it deprives him of liberty without due process of law. The attack is not upon the procedure, as a fair trial yielded a lawful conviction, but upon the substance of the law.


The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. However, the Fifth Amendment does not enact the Kama Sutra. A constitution is not intended to embody a particular social theory, whether of promiscuity or of chastity. A reasonable man might think the ordinance a proper measure on the score of health and general welfare.


The principle that sustains compulsory vaccination is broad enough to cover compulsory contraception. Jacobson v. Massachusetts (1905) (Harlan, J.). Three generations of aboriginals are enough.


Cary’s conviction is affirmed.




The Governor of Puerto Rico determined that racial tensions between Whites and Hispanics on the Island were contributing to a dangerous society, as race riots were breaking out in integrated neighborhoods. In response, he enacted Ordinance #3, titled “An ordinance to prevent conflict and ill-feeling between the white and colored races.”[1] The ordinance made it “unlawful for any colored person to move into any house upon any block upon which a greater number of houses are occupied by white people than are occupied by colored people.” Likewise, the ordinance also made it “unlawful for any white person to move into any house upon any block upon which a greater number of houses are occupied by colored people than are occupied by white people.” However, the ordinance does not prohibit “colored servants” from moving into houses on so-called “white blocks.”

[1] Nota Bene: With slight alterations, this is a verbatim reproduction of an actual ordinance that the Supreme Court reviewed during this time period.


Daisy, who was Hispanic, attempted to sell her house to James, who was white. There were no other white people living in Daisy’s neighborhood. The Governor intervened and blocked the sale, citing the authority of Ordinance #3.


James, who was unable to buy the house, challenged Ordinance #3 as a deprivation of his liberty and property interests without due process of law. He sought specific performance to allow him to purchase the house. (James did not challenge Ordinance #3 as a violation of the 14th Amendment’s Equal Protection Clause).


As we have seen, this Court has held laws valid which separated the races on the basis of equal accommodations in public conveyances, and courts of high authority have held enactments lawful which provide for separation in the public schools of white and colored pupils where equal privileges are given. This ordinance is consistent with those precedents.


Because the 5th Amendment’s guarantee of due process concerns only procedural rights, and does not affect a liberty interest in conveying property, the Constitution affords James no grounds of relief.




After the enactment of Ordinances #1, #2, and #3, the natives of Puerto Rico began to rise up in opposition to the Territorial Governor. Leaders of the movement distributed pamphlets advocating for Puerto Rican independence from the United States. Wide-spread riots broke out, and the Governor declared martial law to maintain peace and order in the Territory. He then enacted Ordinance #4, which made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” Eugene, one of the movement’s leaders, is convicted for distributing pamphlets calling for secession from the United States. Eugene now appeals his conviction to this Court.


We admit that in many places and in ordinary times the defendant in saying all that was said in the pamphlet would have been within his constitutional rights. But the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the Governor has a right to prevent. It is a question of proximity and degree. When a territory is gripped by revolutionary fervor, and there are riots in the streets, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endorsed, and that no Court could regard them as protected by any constitutional right.


The venerable Latin maxim provides our rule of decision today: Intra armes silent leges. Eugene’s conviction is affirmed.



It is so ordered.

Justice Harlan has asked you to prepare a memorandum that will assist him with writing the dissent. The memorandum should be no more than 1,000 words, focusing on 5 specific issues you are asked to address. Please number each section separately to make it easier for Justice Harlan to review your answer.

  1. With respect to Part I, please address the constitutionality of Ordinance #1, and explain what equitable relief the Court should afford Martin.
  2. With respect to Part II, Justice Harlan would like you to discuss whether Ordinance #2 violates the Due Process Clause of the 5th Amendment.
  3. With respect to Part III, Justice Harlan would like you to discuss why Ordinance #3 violates the Due Process Clause of the 5th Amendment. (Please note that James did not challenge Ordinance #3 under the 14th Amendment’s Equal Protection Clause).
  4. With respect to Part IV, Justice Harlan would like you to point out the weaknesses of Justice Holmes’s majority opinion, and explain how the First Amendment should be applied to Ordinance #4.
  5. As you know, Justice Harlan dissented in Plessy v. Ferguson. He has asked you to address both the pros and cons of writing in his dissent that Plessy ought to be overruled. When writing your analysis, please keep in mind the state of affairs in 1905.


Read More
Jun 14, 2016

“Trying to do harm”

During an interview about the massacre in Orlando, CNN host Anderson Cooper charged that Florida Attorney General Pam Bondi  was a hypocrite for her support of the LGBT community, in light of her defense of Florida’s marriage laws. Cooper said that as Attorney General, Bondi argued that “that gay people simply by fighting for marriage equality were trying to do harm to the people of Florida.” Here is a segment of the lengthy exchange:

COOPER: I talked to a lot of gay and lesbian people here yesterday who are not fans of yours and who said that they thought you were being a hypocrite, that you for years have fought — you basically gone after gay people, said that in court that gay people simply by fighting for marriage equality were trying to do harm to the people of Florida. To induce public harm, I believe was the term you used in court. Do you really think you’re a champion of the gay community?

BONDI: Let me tell you. When I was sworn in as attorney general, I put my hand on the Bible and was sworn to uphold the constitution of the state of Florida. That’s not a law. That was voted in to our state constitution by the voters of Florida. That’s what I was defending. Had nothing to do — I’ve never said I don’t like gay people, that’s ridiculous.

COOPER: But do you worry about using language accusing gay people of trying to do harm to the people of Florida when doesn’t that send a message to some people who might have bad ideas in mind?

BONDI: Anderson, I don’t believe gay people could do harm to the state of Florida. We’re human beings.

COOPER: But you argued that in court.

BONDI: My lawyer argued a case defending what the Supreme Court allowed the voters to put in our state constitution.

I suspect Cooper was referring to Florida’s Motion to Dismiss in Brenner v. Scott. (I have archived the pleadings from all of the SSM cases for my research on The Process of Marriage Equality). The AG wrote in the introduction of the brief:

The Court should also deny the preliminary injunction motions because there is no likelihood of success on the merits, there is no immediacy requiring a preliminary injunction, and disrupting Florida’s existing marriage laws would impose significant public harm.

Florida did not argue that “gay people simply by fighting for marriage equality were trying to do harm to the people of Florida.” The plaintiffs in this case sought a motion for a preliminary injunction. This is a form of immediate, equitable relief. One of the arguments courts consider in denying a preliminary injunction is whether the order would impose “irreparable harm” on the “public interest.” Florida argued that the risk of irreparable harm by enjoining its marriage license did not warrant a preliminary injunction. (They also argued that the plaintiffs were unlikely to succeed on the merits, but this is a different element of the argument). Putting aside the underlying question of the merits, a critical issue confronting the court was whether immediate relief was appropriate.  As we saw in many other states, the decision to enjoin the marriage laws led to a race to the altar before Circuit Courts stayed the order. The licenses issued during this gap period led to follow-up litigation, and several courts found it would violate Due Process to retroactively void them. In 2014, the federal district court in Brenner enjoined Florida’s law, but stayed its decision, recognizing a “substantial public interest in stable marriage laws.” Judge Hinkle recognized that there would be a public harm by abruptly disrupting Florida’s marriage law as the case is appealed to the Supreme Court.

But none of these nuances of civil procedure matter. Any governmental attorney who defended a law passed by overwhelming majorities of Floridians across the ideological spectrum will forever be viewed by Cooper and others as if they were John W. Davis, who argued on behalf of the Topeka Board of Education. Don’t forget, only one year earlier, the federal government continued to enforce the Defense of Marriage Act, which was passed by an overwhelming majority of Congress across the ideological spectrum “to express moral disapproval of homosexuality.” History is written quickly.

Read More
Jun 14, 2016

A “No Buy” List for Guns Based on FISA Court Proceedings is Awful Policy and Unconstitutional

I was frankly stunned to read Adam Winkler’s proposal in the New York Times to expand the jurisdiction of the FISA Courts to allow the judges to add suspected terrorists to a federal gun watch list, on only a probable cause standard.

I am old enough to remember the outrage on the left to no-fly lists, which indiscriminately singled out middle-eastern men for violations of their civil rights. For years, the ACLU has been challenging in courts the no-fly list as a violation and deprivation of civil rights and due process. And good for them! In 2010, Laura Murphy, Director of the ACLU Washington Legislative Office Senate Committee on Homeland Security and Government Affairs, testified at a hearing titled “Terrorists and Guns: The Nature of the Threat and Proposed Reforms.” Her testimony offers a stinging critique of the no-fly lists, and urged Congress not to prevent people on the list from purchasing a gun.

We write today about the use of terror watch lists to screen gun purchases. The ACLU believes that the current terror watch list process is deeply flawed. Evidence from numerous government reports document ill-designed and inaccurate lists with serious inadequacies in the process for placing and removing individuals from the list. Even worse, the lists are shrouded in secrecy: who is on the list, the standard for placement on the list, and the requirements for removal from the list are all secret. Given these problems, we do not believe that anyone should be deprived of the right to purchase a gun, or the right to fly, or any other benefit of membership in civil society based solely on placement on a terror watch list.

See more from Eugene Volokh here and here.

Now, we are at the point where the left is proposing this as a means to further single out and target middle-eastern men. For all of the outrage against Donald Trump’s overt racism against Muslims, this proposal would quietly have a similar effect. Who do you think are the sorts of people added to these lists? If Edward Snowden has taught us anything, that secret proceedings can and will be abused–especially if motivated by political expediencies. Imagine the same sort of power in the hands of a Trump administration–allowing federal agents to secretly add Muslim-Americans to secret lists based on informed conjecture. And this is far different from ex parte domestic abuse orders, which Adam tries to draw an analogy to. Ex parte does not mean Star Chamber.

Being beyond an awful policy suggestion, this idea is patently unconstitutional. Adam mentions that the FISA Court can grant search warrants based only on “probable cause,” as if that is some sort of panacea or green light to deprive other constitutional rights on that basis. Adam certainly knows better. The phrase “probable cause” is actually in the 4th Amendment. The framers understood that temporary searches would have to be authorized on standards far short of that required for a criminal conviction. A permanent deprivation of constitutional rights is not subject to a probable cause standard, with good reason. Call it strict scrutiny or intermediate scrutiny, or whatever you want, but the standard for Franks v. Delaware will never be sufficient to protect a constitutional right. Except unlike Franks v. Delaware, there is zero opportunity to challenge secret court proceedings–hell, you’ll never even know one occurred until you attempt to buy a gun and are denied for unknown reasons.

A few months ago, I advised a member of the California legislature on a potential state law that barred people on the federal no-fly list from owning guns. He agreed that it would not work. Among the constitutional scholars who advised him were Adam Winkler.

I should also note that the individual involved in the Orlando shooting was subject to several FBI investigations, and they ultimately abandoned it–and any other potential FISA proceedings. This is not the route to go down to protect our homeland security. 

Read More
Jun 14, 2016

Constitutional Places: Plaque Commemorating the History of Village of Euclid v. Ambler Realty

The Ohio History Connection recently unveiled a plaque commemorating the location of Village of Euclid v. Ambler.  (Thanks to  Michael Allan Wolf and Stephen R. Miller of the LandUse Blog for the story).

The plaque reads:

By 1922, the Ambler Realty Company of Cleveland owned this site along with 68 acres of land between Euclid Avenue and the Nickel Plate rail line. Upon learning of the company’s plans for industrial development, the Euclid Village Council enacted a zoning code based on New York City’s building restrictions. Represented by Newton D. Baker, former Cleveland mayor and U.S. Secretary of War under Woodrow Wilson [and founder of Baker Hostetler], Ambler sued the village claiming a loss of property value. In 1926, the U.S. Supreme Court ruled in favor of Euclid and upheld the constitutionality of zoning and land-use regulations by local governments. The federal government eventually acquired the Ambler site during World War II to build a factory to make aircraft engines and landing gear. From 1948 to 1992, the site was used as a production facility by the Fisher Body Division of General Motors.


Paul Oyaski, Former Euclid Mayor, offered a history of the case. Here is a segment of the speech:

Euclid’s zoning ordinance was not the first such ordinance adopted in the United States.   But Euclid, the “mere” suburb of giant Cleveland became the target of the first federal lawsuit alleging that the ordinance in its entirety was unconstitutional for violating the due process rights, the liberty interests and the equal protection rights of the owner of this then 68-acre property, Ambler Realty.   The Euclid ordinance determined that Ambler’s parcel would have to be used for single or two family residences only along the Avenue.   Only the rear portion of this parcel next to the railroad could be used for industrial purposes.  Ambler was very unhappy with these restrictions as he saw the maximum value of his private property was greatly reduced.  The successful 77 year-old Ambler wanted to decide himself how to best use his property. Industrial use was his preferred choice for his Euclid Avenue frontage.

Euclid’s position was that its elected government, possessing home rule powers under the 1912 Ohio constitution, could legislate what was in the best interests of the public health, safety and general welfare of its residents.  Ordinance 2812 was based on the Village’s desire to prevent congestion, to not overburden the sewer and water systems, and to preserve the Village’s character. Euclid’s law pointed out that they had set aside sufficient land for industrial purposes but not at this spot.

The issue of how much power the government has over private property was the crux of the matter that, once resolved, established a long-enduring legal precedent, served as a model for thousands of other communities and rightfully earned us this historical marker.

Who were the key leaders in the battle?   The Village was led by its fifth Mayor, Charles X. Zimmerman, 57 years old and a veteran of the Spanish-American War and the First World War and a Brigadier General to boot. The village was represented by lawyer James Metzenbaum, who once lived in a beautiful house on the Avenue near Sherwood Boulevard with his late, beloved wife, Bessie Benner Metzenbaum.  The six members of Village Council, including the sponsor of Ordinance 2812, Councilman Cantlon, were unanimous in their support for the innovative ordinance.   Just after Ambler filed suit in May, 1923, Euclid offered to compromise by increasing the size of the area for industrial use that could be built next to the railroad. Euclid never budged on its decision that the Euclid Avenue frontage must be residential.   The village’s concession did not stop the lawsuit.

The private property owner was Judge William Ambler whose family had developed the still beautiful Ambler Heights subdivision, just east of University Circle. Ambler was represented by Newton Baker, someone who would have been one of the first selections to the Cleveland politicians’ Hall of Fame if there was such a thing.   Baker was once the law director for the legendary Cleveland Mayor Tom Johnson, then Mayor himself when City Hall was dedicated and later Woodrow Wilson’s Secretary of War during WW 1.  Baker was a founder of the powerhouse Cleveland law firm, Baker and Hostetler, now located in Key Tower.     Baker privately considered Euclid’s zoning restrictions as “communistic” in that they took the value of private property and gave that value to the public without compensating the private owner. Baker was a mover and a shaker and he raised several thousands of dollars to cover legal fees and expenses in advance from major property owners, including the two railroads in Euclid.  Ambler filed suit initially in the federal district court then found in the new federal building on Public Square.  The local federal judge assigned to decide the case was Judge David Westenhaver, Baker’s former law partner whom Baker reportedly encouraged President Wilson to appoint to the bench.

The initial decision by Judge Westenhaver in early 1924 was a total loss for Euclid.  He decided that the Euclid law violated the due process clause by taking private property for public use without just compensation.  It was discriminatory, confiscatory, exclusionary and unreasonable. Euclid’s law had put private property in a “straitjacket.”  Round one of Euclid v. Ambler was a complete victory for the 55 year-old Baker and his client.  In those days, an appeal could be made directly to the US Supreme Court led by former President Taft which the Village and Metzenbaum promptly filed.

By all accounts, the 43-year old Metzenbaum was a nervous worry wart as he mounted the appeal, inundating the Court clerk with numerous filings. This would be his only case before the highest court and he was determined to win. It was also said that the village’s attorney was a small man whom the justices had to lean forward to see from the high bench upon which they sat.

There was a first hearing in early 1926 and the results of that hearing had Metzenbaum worried; he urgently and successfully asked the Court for permission to file another brief from his homebound train which was stuck in a blizzard.    An unusual second hearing was granted for the fall of 1926 and it included all nine justices.  In the meantime, a national planning expert, Alfred Bettman from Cincinnati was permitted to file a brief on behalf of Euclid.  In the end, Bettman’s work justifying zoning was considered very helpful to Euclid.

On November 22, 1926, by a 6-3 vote, Euclid won!     The famous decision upheld the validity of municipal zoning and is still good law today.   Justice Sutherland, once known as one of the four most conservative justices—the so-called Four Horsemen of the Apocalypse- who were generally supportive of private property rights and opposed to government regulation, wrote a thorough opinion upholding Metzenbaum and Bettman’s arguments.   Sutherland said that changes in modern society justified a new approach to reviewing the extent of governmental power involving land use issues.   His opinion gave deference to local governments, saying the Euclid’s law was not clearly arbitrary or unreasonable and that it was not unrelated to the public health, safety and general welfare.  Sutherland was not impressed with the fact that Ambler’s property was worth less under Euclid’s zoning, finding that the village’s regulation was not an unconstitutional taking of the parcel’s entire value.   Sutherland noted that most state court decisions had previously upheld the power of zoning under state constitutions.  Westenhaver’s lower court decision was reversed.

A key cameo role was played by US Commerce Secretary Herbert Hoover who was then developing the Standard State Zoning Enabling Act, promoting the federal view that states should empower their subdivisions to enact local zoning in the interests of efficiency.  Mayor Zimmerman admitted that Euclid relied on an early version of Hoover’s work when the village was studying the subject in 1922.

Euclid’s zoning plan was given the Supreme Court’s seal of approval!    The Cleveland City Manager called the decision “revolutionary.”   Major US newspapers commented favorably on the decision.  The Christian Science Monitor said that it was an answer to an urban reformer’s prayer. And, David had beaten Goliath! Ordinance 2812 is still the law in Euclid, although repeatedly amended.  It has been a model for more than 4000 American cities.  The bold initiative taken by Mayor Zimmerman and the Village Council was completely vindicated.   Thanks to zoning, there are no fast food restaurants on Ball Avenue and no smoke stacks north of the Boulevard.  Homes are setback from the street just so far, fences can only be so high, signs so big, and houses must be set apart from one another.

Zoning laws, while not without criticism, led to such newer concepts as environmental protection and historic preservation.   Cities can still lose zoning cases today if a court finds the regulations to be arbitrary, discriminatory, unreasonable or based on aesthetics.  But zoning stills stands as a municipal watchdog.

In Euclid after 1926, industry, for a time, was limited to the area along and between the railroads until Hitler started invading most of Europe. America prepared to respond.   Congress passed a law calling for the increased production of war materials and the federal construction of war plants, including one right here that made airplanes and airplane parts. The Constitution also states that federal laws are the supreme law of the land meaning that the US government is not bound by local zoning.   So, long after Judge Ambler and Newton Baker passed away, the Ambler property here was used for industry after all.  The need for the Arsenal of Democracy trumped Ordinance 2812.

James Metzenbaum had won his one and only case before the US Supreme Court.  His argument and legal skills bested the vaunted Newton Baker. His attention to detail and determination on behalf of the people of Euclid established a lasting precedent. His life after this victory was described as melancholy.  His young wife, Bessie Benner Metzenbaum died in 1920 after 15 years of marital bliss. They had no children. Shortly after her death, Mayor Zimmerman had put him to work on the committee that drafted Ordinance 2812.   Metzenbaum moved to Cleveland’s Statler Hotel after her death, wrote two popular law casebooks on the Law of Zoning, and ran several times for public office.  He bought a farm in Chester Township in the late 1940s.   Metzenbaum remained devoted to her wife’s memory.   He visited her at Lakeview Cemetery two or three times weekly for the forty years! In fact, Metzenbaum died on New Year’s Eve in 1960 while trying to free his car from a snow drift in Lakeview after his last visit to his beloved Bessie.   Metzenbaum’s will left part of the farm in Chester to serve young people and the Metzenbaum Center for the developmentally disabled opened in 1966 and is still hard at work today.  The balance of the farm became the beautiful Bessie Benner Metzenbaum Park.

Metzenbaum’s legacy lives on in American jurisprudence, in the community of Euclid he served so diligently and on a beautiful rustic site a short distance from here.

Four score and ten years ago, the mere suburb known as the Village of  Euclid, population of less than 4000, boldly passed a visionary law, tenaciously fought to defend that law and won the day before the highest court in the land against formidable opponents.  That victory led to the nationwide adoption of zoning laws, and American cities have been forever transformed as a result.

When I teach Euclid, I provide these images to illustrate the site:

in Euclid.

As best I can tell, the lot is currently bounded by E 196th St and E 204th St, between Euclid Avenue and the train tracks.

Here is the map.

View Larger Map

It seems to be some kind of business park today. Here are some photographs of what the lot looks like today, courtesy of Michael Alan Wolf.

And in case you were wondering (I know you were!) what the Supreme Court looked like in 1926, here it is:

Chief Justice William Howard Taft Associate Justices Oliver W. Holmes, Jr. Willis Van Devanter James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Edward T. Sanford Harlan Fiske Stone

Read More
Jun 14, 2016

Property I Final Exam Grades and Comments

Hello everyone. I apologize for interrupting your summer break with this note. I have submitted grades for Constitutional Law. You can download the exam question, and the A+ paper (If this is yours, please drop me a line!).

This was an extremely difficult test, by design, because I had high expectations. For the most part, you met those expectations. Many of you far exceeded them. Here is the breakdown of the grades. On the whole, the grades were quite good, and I am very proud of the class. The mean was above a 3.0, which was a marked improvement from the midterm.



I would like to provide some high-level thoughts on these Star-Wars themed questions.

Question 1

Part I asked for you to apply the rule of capture to building a pipeline to transport water, which is considered a “fugitive” natural resource under the common law. The class did exceptionally well on this question. The average score was 8.03 out of 10, which I think was the highest single-question score I’ve ever had. Maybe I made the question too easy, or the class really understood the rule of capture. To give you a sense of how I graded the question, I was looking for three different themes. First, whether you can identify the relevant cases–Pierson v. Post and Ghen v. Rich. Second, whether you understand the natural law theorists in the majority and dissenting opinion in Pierson (Locke, Grotius, Pufendorf, Barbeyrac). Third, did you recall the different regimes for water (“riparian”) law: the English Rule, American Rule, and Western Rule. Most of you got at least two out of three. The best answers worked in all three of these themes, and included policy discussions of why the various rules were relevant. (There were twelve perfect 10s out of eighty students, again, I think the highest I’ve ever had).

Part II tripped students up a bit, as it asked for a discussion of the common-law misappropriation issues of Princess (Leia) making copies of the Death Star’s blueprints. A lot of you attempted to discuss copyright or patent issues, but as the question noted, “there are no statutory claims raised.” This was precisely the question in International News Service v. Associated Press, where the Supreme Court developed a common-law, quasi-property right in breaking news. The best answers developed the themes from INS, and worked in a discussion of labor theory, which rewards creativity, and countered with the need to promote the sharing of information. A few of you even cited Judge Hands’s decision in Cheney Brothers v. Doris Silk, Corp, which repudiated SCOTUS’s errant decision. Even under the regime of Swift v. Tyson, the Supreme Court lacked the authority to make such federal common law in an area where Congress had legislated (this was before Erie Railroad v. Tompkins). It was a featured case in previous editions of the casebook, but was only a note in your version. I mentioned it briefly. I hope that students paid attention in class, though you may be recycling old outlines from last year. Either way, you got the issue correct.

Part III imagined that a chunk of the destroyed-Death Star fell into Tatooine’s orbit, and became a new moon. This question merges combined three different approaches of acquiring property: Acquisition by creation (Darth built the Deathstar), acquisition by discovery (Luke landed on the satellite, and planted a flag), and acquisition by conquest (Luke killed Darth over it). The stronger answers discussed Johnson v. M’Intosh and the relevant precedents involved in that case. A number of you cited the cases about mislaid or lost property. These cases only concern personal property (a watch or ring), not real property (actual land). For acquiring land, you need to apply the acquisition doctrines. Several of you also discussed Macavoy and other related cases with respect to finding water; that was incorrect.

Part IV involved several competing present and future interests. Three decades ago, Darth gave Obi the lightsaber on his deathbed, and told him “on my death, give this lightsaber to my son.” Traditionally, this sort of testamentary gift is void because it violates the statute of wills (not written, doesn’t have two witnesses). However, because Darth was about to die, it would be considered a donatio causa mortis (gift in anticipation of death). If this interest was valid, then Luke would have the lightsaber in fee simple. However, because Darth didn’t die, and the gift–which was not delivered until much later–was revoked. During his battle with Luke, Darth said “I want you to have it during my life, and after my life it should go to your sister.” I was frankly shocked at how many people this tripped up. Luke had a life estate pur autre vie–that is a life estate measured by the life of Darth. Princess had a vested remainder in fee simple. Many, many students saw the word during and wrote there was a fee simple determinable, or some sort of shifting executory interest. It was far simpler than this–the condition on which it went from Luke to Princess was the death of Darth. That’s a life estate. Once Luke killed Darth, any interest he had in the lightsaber was extinguished, and his sister now owned it in fee simple. As for Obi, a number of you described his interest as a bailment, which was correct, although once Darth dies, that bailment is extinguished. The best answers also worked in Newman v. Bost and Gruen v. Gruen.

Part V was the policy question. Darth’s estate sued Luke for trespass, because he broke onto the Deathstar to rescue the kidnapped Princess. This required a discussion of the “right to exclude.” You should have discussed the competing precedents of State v. Shack and Jacque v. Steenberg Homes. The better answers included discussions of self-help, the importance of private property, and also the balance of “people over property.” For the most parts, students demonstrated that they have thought this issue through.

Question 2

The second question, much like Star Wars episodes 1-3, served as a prequel to the first question.

Part I considered a fairly complicated lease situation, that did not quite fit into any of the categories we studied in class. I was looking for a few different themes. First, I wanted you to classify the lease. I think it is best viewed as a tenancy at will, which under the common law, only the landlord had the power to terminate, without notice. Some of you wrote that it was a term of years, which I gave some credit for. Also, the fact that the lease began on January 1, and Padme gave notice on May 30, means she was 1 day shy of 6 months. The more important issue was whether you noted that the sublet was actually an assignment, the words of the instrument notwithstanding. The intent was to convey the entire interest. If it was an assignment, then Obi is on the hook for all the damages. You should have cited several of the cases, including Garner v. Gerrish, Ernst v. Conditt, and Kendall v. Earnest Pestana.

Part II tested your knowledge about joint tenancies in a community property state for married couples. As we discussed in class, special rules apply; namely the normal rules of survivorship do not apply because there are not separate interests. I referred to it as a quasi-joint tenancy, which many of you used on the exam. Many of you applied the conventional joint tenancy rules, and lost points. The answer is complicated because both Padme and Anakin die almost simultaneously, but the analysis is basically the same. Assuming Padme dies first, Anakin inherits half of Padme’s interest. He started with 50%, so now has 75%. What about the other 25%? The twins Luke and Princess split, it, 12.5% each. Several of you said that because Anakin was reborn as Darth, that severed the unities. Ultimately, both Padme and Anakin die, so the twins would split the property 50%-50%. (Several of you wrote about a “joint tenancy in common.” No matter how many times I warn you not to write that on the exam, students always disappoint).

Part III asked you compare Moore v. Regents of University of California with Darth stealing, and profiting from Obi’s use of the force. The best papers analyzed the competing opinions from Moore, and addressed the legal, ethical, and economical issues behind granting property rights to non-regenerative body parts.

Part IV was a straightforward classification of present and future interests. Darth had a present interest in life estate. Luke had a vested remainder in fee simple subject to an executory limitation (he was ascertained, and there was no condition precedent–note the condition came after the comma). Princess had a shifting executory interest.

Part V was a policy question where you had wide latitude to compare and contrast the community and common law property systems. Some of the biggest differences for migrating couples include the force elective share, and the quasi-joint tenancy.

On the whole, I was very proud. Well done.

Read More
Jun 13, 2016

Kavanaugh: Chevron Step 1 Difficult for Judges to Perform “In a settled, principled, or evenhanded way”

Last week, Judge Brett Kavanaugh gave a keynote address at the Antonin Scalia School of Law’s Center for the Study of the Administrative State. (Neomi Rao and her colleagues put on a fantastic conference!). During his remarks, Judge Kavanaugh offered a preview of his book review of Judge Robert Katzmann’s book on statutory interpretation. The Harvard Law Review has now published the review, with a response by Judge Katzmann.

One of Judge Kavanaugh’s insights, which he stressed during his remarks at GMU, focused on the interchange between Chevron Step 1 and legislative history. From the abstract:

But more work remains. As Justice Scalia’s separate opinions in recent years suggest, certain aspects of statutory interpretation are still troubling.4 In my view, one primary problem stands out. Several sub- stantive principles of interpretation — such as constitutional avoid- ance, use of legislative history, and Chevron — depend on an initial de- termination of whether a text is clear or ambiguous. But judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.

In short, judges have wildly difference conceptions of what makes a statute ambiguous.

From the judge’s vantage point, the fundamental problem once again is that different judges have wildly different conceptions of whether a particular statute is clear or ambiguous. The key move from step one (if clear) to step two (if ambiguous) of Chevron is not de- terminate because it depends on the threshold clarity versus ambiguity determination.172 As Justice Scalia pointed out, that determination “is the chink in Chevron’s armor — the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions.”173

I see that problem all the time in my many agency cases, and it has significant practical consequences. In certain major Chevron cases, different judges will reach different results even though they may ac- tually agree on what is the best reading of the statutory text.

We saw this dynamic throughout the Halbig and King litigation. On the D.C. Circuit, for example, Judges Griffith and Randolph thought “established by the state” was not ambiguous; Judge Edwards did.

Kavanaugh notes that the Court has retreated, somewhat, from Chevron deference, most recently in King v. Burwell. The decision, he notes, raises two questions:

And King v. Burwell in particular raises two significant questions that the Supreme Court will presumably have to confront soon: First, how major must the ques- tions be for Chevron not to apply? Second, if Chevron is inappropriate for cases involving major questions, why is it still appropriate for cases involving less major but still important questions?

So what’s the solution? The former White House lawyer writes that agencies still get deference for certain terms of art like “reasonable” or “appropriate.” But when interpreting a specific statutory phrase, Judges should interpret the text of the statute–presumably without resort to extraneous and malleable sources like legislative history. .

But in cases where an agency is instead interpreting a specific stat- utory term or phrase, courts should determine whether the agency’s in- terpretation is the best reading of the statutory text. Judges are trained to do that, and it can be done in a neutral and impartial man- ner in most cases.

In short, the problem with certain applications of Chevron, as I see it, is that the doctrine is so indeterminate — and thus can be antithet- ical to the neutral, impartial rule of law — because of the initial clarity versus ambiguity decision. Here too, we need to consider eliminating that inquiry as the threshold trigger.

Judge Katzmann seems intrigued by the proposal:

Judge Kavanaugh encourages us to ask when deference is due to an agency interpretation. He proposes distinguishing between statutes using broad and open-ended terms, where courts should generally give agencies the discretion to make policy judgments, and statutes with specific terms or phrases, where courts should determine whether the agency’s interpretation is the best reading of the statutory text. Judge Kavanaugh raises an issue well worth considering — whether under the current Chevron framework, there is undue deference to an agency’s interpretation of a statute where the court is in as good a position as an agency to make a competent determination.

Kavanaugh also critiqued the modern-day incarnation of Chevron, because it encourages the executive branch to be “extremely aggressive.” In effect, the courts share in the blame for executive overreach, because their judicial doctrine emboldens it.

In that regard, it is important to understand how Chevron affects the Executive Branch. From my more than five years of experience at the White House, I can confidently say that Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggres- sive in seeking to squeeze its policy goals into ill-fitting statutory au- thorizations and restraints. My colleague Judge Tatel has lamented that agencies in both Republican and Democratic administrations too often pursue policy at the expense of law.165 He makes a good point. As I see it, however, that will always happen because Presidents run for office on policy agendas and it is often difficult to get those agen- das through Congress. So it is no surprise that Presidents and agencies often will do whatever they can within existing statutes. And with Chevron in the mix, that inherent aggressiveness is amped up signifi- cantly. I think some academics fail to fully grasp the reality of how this works. We must recognize how much Chevron invites an extreme- ly aggressive executive branch philosophy of pushing the legal enve- lope (a philosophy that, I should note, seems present in the administra- tions of both political parties). After all, an executive branch decisionmaker might theorize, “If we can just convince a court that the statutory provision is ambiguous, then our interpretation of the statute should pass muster as reasonable. And we can achieve an important policy goal if our interpretation of the statute is accepted. And isn’t just about every statute ambiguous in some fashion or another? Let’s go for it.” Executive branch agencies often think they can take a par- ticular action unless it is clearly forbidden. 

And even if it is “clearly forbidden,” they do it anyway if no one has standing to challenge it (see House of Representatives v. Burwell).

Keynote Address: Justice Scalia and Deference from Mason CSAS on Vimeo.

Read More
Jun 13, 2016

Not a good week for U.S. Territories at #SCOTUS

Last week in Puerto Rico v. Sanchez Valle, the Court held that Puerto Rico was not a separate sovereign for purposes of double jeopardy. This morning, the Court denied certiorari in Tuaua v United States, a constitutional challenge to the denial of birthright citizenship for American Samoans. Later, in Puerto Rico v. Franklin Cal. Tax-Free Trust, the Court held that Puerto Rico was a state for purposes of Chapter 9 of the Bankruptcy Code, prohibiting the territory from restructuring its own debt.

Justice Sotomayor offered this in dissent, calling on Congress to resolve the issue.

Finding pre- emption here means that a government is left powerless and with no legal process to help its 3.5 million citizens.

Congress could step in to resolve Puerto Rico’s crisis. But, in the interim, the government and people of Puerto Rico should not have to wait for possible congressional action to avert the consequences of unreliable electricity, transportation, and safe water—consequences that mem- bers of the Executive and Legislature have described as a looming “humanitarian crisis.” The White House, Ad- dressing Puerto Rico’s Economic and Fiscal Crisis and Creating a Path to Recovery, p. 1 (Oct. 26, 2015) (italics deleted); Letter from Sen. Richard Blumenthal et al. to Charles Grassley, Chair, Senate Committee on the Judici- ary (Sept. 30, 2015). Statutes should not easily be read as removing the power of a government to protect its citizens.

The Governor of Puerto Rico said he would appeal the Court’s Sanchez Valle decision to the United Nations.

“In the 21st century, it is unacceptable for the United States, the international community and Puerto Rico that the political sovereignty of a people depend on the opinion of another people’s legislature, even if only for the criminal prosecution of its citizens, Gov. Alejandro García Padilla said in a statement.

“I am convinced that the judgment of the majority opinion is wrong and we have the obligation to evaluate its political consequences,” Mr. Garcia Padilla said. “It is our duty to defend our right to self-government before the international community, the people of the United States, and, above all, the people of Puerto Rico.”

Mr. Garcia Padilla, whose Popular Democratic Party is affiliated with the Democratic Party, said in December that should the Supreme Court rule against Puerto Rico, he would seek to raise the island’s status before the U.N.’s Special Committee on Decolonization.

Good luck with that.

Read More
Jun 13, 2016

CJ Roberts’s First Opinion cited CJ Marshall’s Circuit Decision in U.S. v. Aaron Burr, Sir

While reading through the Chief Justice’s decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., which unanimously reversed the en banc Federal Circuit, I was drawn to this citation:

“[A] motion to a court’s discretion is a motion, not to its incli- nation, but to its judgment; and its judgment is to be guided by sound legal principles.” Martin, 546 U. S., at 139 (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.); alteration omit- ted).

I did a bit of research and found that Roberts managed to cite C.J. Marshall in his very first published decision, Martin v. Franklin Capital Corporation. (If this was reported at the time, I missed it).  The Chief offered this early homage, “on good authority” to his judicial man-crush.

We have it on good authority that “a motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.).

Martin was decided on December 7, 2005, barely one month after it was argued on November 8, 2005. (This was during the brief interregnum where Justice O’Connor served alongside Chief Justice Roberts, and before Justice Alito was confirmed).

United States v. Burr has been cited 16 times by SCOTUS, but this sentence only thrice, all by JGR. In Halo and Martin, plus Nken v. Holder 2009. Roberts has a thing for Marshall’s “discretion.”

This Circuit Court decision arose from the treason prosecution of former-Vice President Aaron Burr, who was attempting to subpoena several documents in his defense (subpoena duces tecum, for those who remember the phrase from law school, or at least the Virginia Bar exam). Burr sought:

certain orders, understood to have been issued to the land and naval officers of the United States for the apprehension of the accused, and an original letter from General Wilkinson to the president in relation to the accused, with the answer of the president to that letter, which papers are supposed to be material to the defence.

The passage Roberts cited supports the conclusion that the documents ought to be subpoenaed:

The court can perceive no legal objection to issuing a subpoena duces tecum to any person whatever, provided the case be such as to justify the process. This is said to be a motion to the discretion of the court. This is true. But a motion to its discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.

As an aside, reading through the decision, I noted this gem:

The constitution and laws of the United States will now be considered for the purpose of ascertaining how they bear upon the question. The eighth amendment to the constitution gives to the accused, ‘in all criminal prosecutions, a right to a speedy and public trial, and to compulsory process for obtaining witnesses in his favor.’ The right given by this article must be deemed sacred by the courts, and the article should be so construed as to be something more than a dead letter. What can more effectually elude the right to a speedy trial than the declaration that the accused shall be disabled from preparing for it until an indictment shall be found against him?

Now, before you jump all over Marshall and say “it’s the sixth amendment,” remember that what we know as the 6th Amendment was in fact the 8th proposed amendment. The first two were not ratified in 1791, but hey, they were still proposed. This is fascinating that Marshall counted this way, even in 1807.

Burr was ultimately acquitted. Hamilton did not fare as well.

In honor of Hamilton’s sweeping success at last night’s Tony Awards, go ahead and sing aloud, Aaron Burr, Sir. Talk less. Smile more. Don’t let them know what you’re against or what you’re for.

Read More
Jun 13, 2016

Without Scalia, Legislative History Cited Without Dissent on #SCOTUS

One of my favorite Scaliaisms was his insistence on dissenting from any citations to legislative history. Even if the opinion was unanimous, you could expect a footnote that Nino did not concur with the reference to the Congressional Record. He insisted that this nudged his colleagues away from citing legislative history. With Scalia’s absence, this is no longer the case.

As I was reading the Court’s unanimous decision in United States v. Bryant, I jumped when I came across this sentence:

“[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain).

I found myself thinking, who the hell cares what John McCain thought. Alas, there was no Scalia dissent to point out that what the Arizonan said on the Senate floor (not even a report!) is utterly and entirely irrelevant to statutory interpretation. Nor will there be going forward. To the extent that Scalia’s dissenting-practice nudged other Justices towards excluding legislative history (dubious), the Eight will now be emboldened to dive deeper into legislative history. His absence is already being felt in subtle ways.

I’ve checked other #SCOTUS decisions that cite the Congressional Record since Justice Scalia’s passing. Justice Thomas referenced it in the majority opinion in Nebraska v. Parker, but he was referring to citations in the Petitioners’s brief. RBG cited it in her concurring opinion in Spokeo and her dissent in Gobeille. So, if my research is correct, Bryant is the first unanimous Scalia-less majority decision that cites legislative history without a dissent.

Read More
Jun 12, 2016

Citizens United Redux: Federal Government Hedges on Question of Banning Books in Library

On Monday, the Fifth Circuit heard arguments in a case I am litigating, Defense Distributed v. Department of State (You can find all the pleadings here). To grossly oversimplify a fairly complicated case, the State Department determined that posting CAD files on the internet, which can be used to 3D-print a gun, constitutes an illegal export of arms. We challenged this action based on the 1st Amendment, the 2nd Amendment, under the intricacies of export control laws, and based on various principles of administrative law (ultra vires, etc.). (My colleague Matt Goldstein has a detailed post about the export-control issues).

One exchange during oral arguments brought me back to the Court’s first argument in Citizens United. The court asked the DOJ attorney, whether the government could regulate the same information if it was published in a book form, and placed into a public library. If Malcolm Stewart’s answer in Citizens United had taught us anything, the answer to any question about banning books must be: no, we will not ban books. On Monday, the DOJ attorney hedged.

Here is our rough, unofficial transcript of the exchange, which begins at 25:39.

C0urt: Is there a difference between Defense Distributed, putting these plans in a scientific book that goes in every library in the country? Is there any difference [between] that and putting it on the Internet?

DOJ: Umm, well, I mean, I think when you’re talking about a book, of course, that would be something that a human would have to read and then, would have to, umm, so–

Court: I assume they could either put it in there [a book] or put a reference to it on the Internet?

DOJ: Yeah, I mean, I, I think if your honor’s question relates to the mechanism by which it’s distributed, I mean, that could be relevant in, in the particular case, although, uhh.

Court: Does the department purport to regulate that, putting it in library books or books going in the libraries?

DOJ: Umm, I, I mean, the State Department hasn’t faced that issue your honor so I don’t wanna get out ahead of them. I think if, if the question, if the question relates to, if you wanted, if it was a genuine scientific book, then you start talking about some of the issues and there are exceptions in the regulation and I can’t pre-judge how they would apply here for things about fundamental research, about academic settings and those weren’t invoked here because there’s no claim that those are at play here but, you know, if you had a particular case where somebody wanted to do a particular thing, then the State Department would have to apply those provisions. So a, a ruling here certainly wouldn’t address that, you know. Ruling for us here, in affirming the district court here, either on the merits or on the preliminary injunction factors wouldn’t say anything about what would happen in that case. [27:13]

Later during the argument, the court asked again whether the government would have the power to regulate this information if it was published in Popular Mechanics, and placed in a library. (The audio starts around 30:30).

Court: They are not specific. They are extremely vague. Foreign means quote exposed to any foreigner. Well, you exposed anything to a foreigner if you put it in Popular Mechanics, produced in English or if you, again, put it in the local library, correct?

DOJ: Uhh, I, it really depends on the circumstances.

Court: It does not depend on, a public library is a public library, isn’t it?

A flashback to oral arguments in Citizens United is worthwhile.

Justice Alito: What’s your answer to Mr. Olson’s point that there isn’t any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?

Malcolm L. Stewart: –I think the — the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life. Those could have been applied to additional media as well. And it’s worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering which have been limited by this Court’s decisions to express advocacy–

Justice Alito: That’s pretty incredible. You think that if — if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

Malcolm L. Stewart: I’m not saying it could be banned. I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.

Justice Kennedy: Just to make it clear, it’s the government’s position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite, it’s under — it can be prohibited under the Constitution and perhaps under this statute?

Malcolm L. Stewart: –It — it can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use — to raise funds to publish the book using its PAC.

When the case was reargued, then-Solicitor General Elena Kagan wisely reconsidered this position:

Justice Ginsburg: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn’t. Is that — is that still the government’s answer?

Solicitor General Kagan: The government’s answer has changed, Justice Ginsburg. [Laughter] It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media. And we took what the Court — what the Court’s — the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government’s view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context. And I should say that the FEC has never applied 441b in that context. So for 60 years a book has never been at issue.

If the government’s argument is that it has the power to regulate a book in a library, the government’s position is wrong. Yet, in our case, the Justice Department hedged on this critical question. I don’t think this was due to poor advocacy–to the contrary, this answer was compelled by the government’s unprecedented position that the State Department has an almost limitless censorship power over public speech.




Read More
Jun 10, 2016

Punning on the #SCOTUS Green

Tony Mauro has a delightful piece about the Chief Justice’s citation in U.S. Army Corps of Engineers v. Hawkes to a 1933 article about Peat and golf.

The late U.S. Supreme Court Justice Antonin Scalia once lamented in an opinion that “the paths of golf and government, the law and the links” sometimes cross, when in fact golf was none of the court’s business.

But Chief Justice John Roberts Jr., an avid golfer, could not resist mingling golf with law in a recent decision that did not get much attention.

The case was U.S. Army Corps of Engineers v. Hawkes, which involved both the Clean Water Act and the Administrative Procedure Act—two statutes that would seem far removed from the sport of golf.

But Roberts made a connection because the case was brought by three companies that mine peat in the bogs of Minnesota. And peat, it turns out, can be part of the soil mix that goes into golf course greens. Who knew?

That link, so to speak, was enough for Roberts to detour from facts relevant to the case. Gratuitously, he observed on page three of the opinion that peat can be used “to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts.”

To back up his assertion, Roberts cited a 1933 article that appeared in a publication of the United States Golf Association (USGA.) The highly technical article, titled “Use of Peat and Other Organic Materials on Golf Courses,” actually portrays peat as a mixed blessing for golf courses, but never mind; it gave Roberts the hook to work golf into his jurisprudence.

The article closes with perhaps my most cringe-inducing pun yet:

But court scholar Josh Blackman, a vocal critic of judges who do outside fact-finding, was willing to give Roberts a mulligan: “This stroke was not par for the course for the eagle-eyed chief justice, who usually chips away at citations that are out of bounds.”

Read More
Jun 10, 2016

ConLaw Final Exam Grades and Comments

Hello everyone. I apologize for interrupting your summer break with this note. I have submitted grades for Constitutional Law. You can download the exam question, and the A+ paper (If this is yours, please drop me a line!).

This was an extremely difficult test, by design, because I had high expectations. For the most part, you met those expectations. Many of you far exceeded them. Here is the breakdown of the grades. On the whole, the grades were quite good, and I am very proud of the class. There was only one failure, and that student did not show up for the final exam.


I would like to provide some high-level thoughts on each question.

Question 1

Question 1 situated you in 1905 with a series of constitutional questions arising from the federal territory of Puerto Rico. (By chance the Supreme Court’s decision yesterday in Puerto Rico v. Sanchez Valle provides an excellent legal history of Puerto Rico). The instructions told you that you were clerking for Justice John Marshall Harlan, and had to write a dissent to the majority opinion written by Justice Oliver Wendell Holmes.

Part I asked about the Governor imposing a literacy test for running for office, but grandfathering anyone who had held office under the old Spanish government. This was based on Giles v. Harris, but involved running for office, rather than voting. The key element I wanted you to recall was that rather than invalidate Alabama’s patently racist registration scheme, the Court was unwilling to supervise local elections. For the most part, students spotted this issue. Many of you discussed the 15th Amendment, which protects the right to vote. I don’t think this works, because the question talked about running for office, not registering to vote. But in any event, it was thoughtful, so I gave partial credit.

Part II was a hybrid of Buck v. Bell and Griswold v. Connecticut: Men who had already fathered a child were required to use government-provided condoms when they engaged in intercourse, even with their wife. However, in 1905, neither Buck nor Griswold, nor Pierce or Myers, had been decided yet. This question called on you to discuss the doctrine of substantive due process, which was in existence, to explain why the state was not justified in engaging in this sort of specious public health method. The best answers discussed why the condom law was not narrowly tailored to address problems of food shortages. Many of you raised the point discussed in Griswold–that this law cannot be enforced. How are the police ever to know if a condom was used? Much of the opinion on the exam was copied, almost verbatim, from Holmes’s dissent in Buck v. Bell. Here was my favorite part:

However, the Fifth Amendment does not enact the Kama Sutra. A constitution is not intended to embody a particular social theory, whether of promiscuity or of chastity. A reasonable man might think the ordinance a proper measure on the score of health and general welfare.

The principle that sustains compulsory vaccination is broad enough to cover compulsory contraception. Jacobson v. Massachusetts (1905) (Harlan, J.). Three generations of aboriginals are enough.

Part III was based on the Supreme Court’s 1917 decision in Buchanan v. Warley. The case was not in your book, but I mentioned it in class. (The A+ paper cited it). The facts in Buchanan were identical to those in Part III. I even quoted, verbatim, from the Kentucky segregation law that was challenged in the case. Justice Holmes actually wrote a dissent in that case, but it was never published. I incorporated elements of his unpublished dissent into the opinion. (If you couldn’t tell, I take authenticity really seriously when writing these questions). The question specifically said that James did not challenge the ordinance under the equal protection clause. That didn’t stop about 75% of you from writing about the equal protection clause. You need to read the instructions. The best answer focused on Lochner and liberty of contract. Imposing a restriction on buying and selling property is a restraint on liberty of contract–indeed the Buchanan Court invalidated the Kentucky law based on the Due Process Clause. (In case you were curious, the two characters from this question–James and Daisy–are famous individuals who share the last name of Buchanan). Several of you noted that the statute only made it illegal to “move into,” and not actually purchase the property, so there were broader freedom of association issues.

The ordinance in Part IV was a near-verbatim reproduction reproduction of the Sedition Act of 1918, which the Supreme Court upheld in Abrams. Of course in 1905, none of the First Amendment cases had come across the docket, so you could not cite them. Many of you drew references to the Alien and Sedition Act of 1798, and the importance of revolutionary pamphlets during the war for independence. Working from these first principles, the best papers discussed the importance of free speech to a democracy, and why the speech that is most jarring and offensive warrants the strongest protection. Many of you discussed modern-day precedents, and notions of strict scrutiny. This received partial credit, but was not responsive to the question asked. The instructions made clear that Congress, by statute, “extended the protections of the entire Constitution” to the territory of Puerto Rico. About half you didn’t read, or understand that instruction, because you engaged in a discussion about incorporation and Barron v. Baltimore. You need to read instructions.

Part V asked you to help Justice Harlan prepare a dissent. About 25% of you didn’t read, or understand that instruction, and thought that Justice Harlan wrote the majority opinion. It is far too easy to explain why Harlan should write that Plessy should be overturned, but there are costs. Namely, that it would require the majority to reaffirm Plessy–something the Court assiduously avoided in Giles, Cumming, and other cases from this era. Further, if the Court in 1905 had overturned Plessy, vast swaths of America would have simply ignored the decision. This would diminish the Court’s legitimacy.

Question 2

This question–which I wrote before the Indiana GOP primary–was meant to test your understanding of how the Supreme Court functions during a constitutional crisis: Eight Justices have to decide the fate of the 2016 Presidential election, where Pennsylvania’s Secretary of State refuses to certify the votes for the Canadian-born Ted Cruz.

Part I asked you whether Congress had the power to define the term “Natural Born Citizen” in Article II to include a person who is born abroad to a U.S. Citizen. The overwhelming majority of you answered that Congress could enact this law pursuant to its Article I, Section 8 power over naturalization, coupled with the Necessary and Proper Power. A few of you also wrote that Congress could rely on its Section 5 powers to provide a meaning to the NBC clause. A small number of you said Congress would have to enact a constitutional amendment to provide a meaning for the NBC clause. Personally, I think the Amendment is the only valid method to proceed, but I gave full credit for the other two answers. Several of you turned to the commerce clause, which I think is flatly wrong. Others talked about Youngstown, which was irrelevant–Congress can override a President’s veto without triggering Justice Jackson’s analysis. Far too many of you wasted words talking about bicameralism and presentment. I mentioned this during class, but if your answer is about bicameralism and presentment, that is probably not what I’m looking for. For some reason, students love writing about this–maybe because it is one of the few mechanical rules in the class?

Part II was something of a double-fake. It asked about a law that only applied to presidential candidates that received votes before November 9, 2016. Many of you wrote that this was an ex post facto law. But it’s not. There is nothing punitive about this law, and it does not criminalize any sort of conduct that transpired before that date. The better answer was that it is likely a Bill of Attainder because the law only applies to a small subset of people (namely Ted Cruz and Hillary Clinton). But after Nixon v. GSA, I doubt it would even be considered a bill of attainder.

Part III is a really tough question–Congress attempts to impose its interpretation of the NBC on the federal courts. Many of you wrote that Congress has no role in interpreting the Constitution. If you wrote this, after sitting in my class for 16 weeks, you were not paying attention. The answer is far more complicated, and requires an analysis of the framework from Boerne v. Flores. The Court has held that Congress lacks the authority to give meaning to constitutional provisions in contradiction to the Supreme Court’s prior decision. It isn’t clear here if this would run afoul of Boerne, because the Court had not yet ruled on the question. I would accept either answer.

Part IV involved a variant of Printz: Can Congress require state officials to interpret the Constitution in a certain manner. Arguably, this constitutes commandeering, as state officials are not bound by statutes, but I think the question goes deeper. State officials do take an oath to the Constitution. This feeds back into the previous question: Can Congress provide a meaning of the Constitution. A number of you wrote that a state executive branch official could be removed under Myers and Humphrey’s Executor. You should know these cases only apply to federal execute-branch officials, not state officials.

Part V was a wide open question to test how you think in an unconstrained environment. I was particularly impressed with many of your creative responses, which involved saving constructions from the Chief, the 12th Amendment, the 20th Amendment, recess appointments, militia uprisings, and many others. I gave credit for just about anything, so long as it reflected thought. If you simply wrote the lower court should rehear the case, that won’t work because the electoral college would soon meet.

On the whole, I was very proud. Well done.

Read More
Jun 9, 2016

Thomas on Multifactor Tests

This quote from Justice Thomas’s dissent in Dietz v. Bouldin should be nailed to the doors of Justice Breyer’s chambers, like Martin Luther’s 95 Theses.

In contrast, the only thing that is clear about the majority’s multifactor test is that it will produce more litigation. This multifactor test may aid in identifying relevant facts for analysis, but—like most multifactor tests—it leaves courts adrift once those facts have been identified.

Thomas’s clerks should make this a macro, and insert it whenever they dissent from a Breyer opinion. It would save time.

Read More
Jun 9, 2016

Justice Thomas Jabs Chief Justice Marshall and Justice Holmes in Two Dissents on the Same Day

In his dissent in Dietz v. Bouldin, Justice Thomas rebuked Holmes’s famous repudiation of laws that are only followed because they have been around for a long time.

Justice Holmes famously quipped, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). But old rules often stand the test of time because wisdom underlies them. The common-law rule prohibiting a judge from recalling the jury after it is discharged is one such rule. Even though contemporary jurors are not formally sequestered as they were at common law, they are still subject to significant restrictions designed to prevent undue influ- ence. And in today’s world of cellphones, wireless Inter- net, and 24/7 news coverage, the rationale that undergirds the bright-line rule supplied by the common law is even more relevant: Jurors may easily come across prejudicial information when, after trial, the court lifts their re- strictions on outside information. I would therefore hew to that rule rather than adopt the majority’s malleable multi- factor test for prejudice. I respectfully dissent.

In his dissenting opinion in Williams v. Pennsylvania, Justice Thomas pointed out that Marshall should have recused in Marbury.

Past Justices have decided cases involving their former clients in the private sector or their former offices in the public sector. See Frank 622–625. The examples are legion; chief among them is Marbury v. Madison, 1 Cranch 137 (1803), in which then–Secretary of State John Marshall sealed but failed to deliver William Marbury’s commission and then, as newly appointed Chief Justice, Marshall decided whether mandamus was an available remedy to require James Madison to finish the job. See Paulsen, Marbury’s Wrongness, 20 Constitutional Commentary 343, 350 (2003).

Justice Thomas calls out two of the most overrated Justices of all time. Well done.

Read More
Jun 9, 2016

Puerto Rico v. Sanchez Valle – Sovereignty, Equal-Footing, and Constitutional Conventions.

The Court’s decision in Puerto Rico v. Sanchez Valle is a fascinating study in the constitutional origins of sovereignty. Justice Kagan, writing for the majority, concluded that Puerto Rico was not a separate sovereign for purposes of the Double Jeopardy Clause. Justice Breyer, dissenting with Justice Sotomayor, countered that Puerto Rico was its own sovereign. The dueling opinions offered competing accounts of the roots of sovereignty, the equal-footing doctrine, and the provenance of Puerto Rico’s 1950 Constitution. What I love so much about this decision–other than Justice Kagan’s wonderful writing–is that the Justices engaged each other on a tough constitutional question, totally apart from the conventional political valances at One First Street. The underlying issue of the Double Jeopardy Clause is trumped by deeper questions of sovereignty.

Before I dive into the opinion, here are a few of Justice Kagan’s most memorable quotations. (Nominate this one for a Green Bag award!):

“The oldest roots of Puerto Rico’s power to prosecute lie in federal soil.”

“We now leave the lofty sphere of constitutionalism for the grittier precincts of criminal law”

“The inquiry is thus historical, not functional—looking at the deepest wellsprings, not the current exercise, of prosecuto­rial authority.”

“And contrary to petitioner’s claim, Puerto Rico’s trans- formative constitutional moment does not lead to a different conclusion.”

“But one power Congress does not have, just in the nature of things: It has no capacity, no magic wand or airbrush, to erase or otherwise rewrite its own foundational role in conferring political authority. Or otherwise said, the delegator cannot make itself any less so—no matter how much authority it opts to hand over.”

Kagan derives the notion of sovereignty from the source of the polity’s authority. To illustrate this point, she uses the example of two sets of lines: Are they parallel, or do they intersect? This is such a simple, but powerful image, to convey a fairly difficult doctrine.

Whether two prosecuting entities are dual sovereigns in the double jeopardy context, we have stated, depends on “whether [they] draw their authority to punish the offender from distinct sources of power.” Heath, 474 U. S., at 88. The inquiry is thus historical, not functional—looking at the deepest wellsprings, not the current exercise, of prosecuto­ rial authority. If two entities derive their power to punish from wholly independent sources (imagine here a pair of parallel lines), then they may bring successive prosecu­ tions. Conversely, if those entities draw their power from the same ultimate source (imagine now two lines emerging from a common point, even if later diverging), then they may not.3

But Kagan does not stop there. She suggests a historical basis for the rule–in short, it is easier to apply. Using a seven-factor test to determine sovereignty (as does Justice Breyer in dissent) creates far too much uncertainty about the scope of the double jeopardy clause. A bright-line rule eliminates that difficulty.

 The Court has never explained its reasons for adopting this histori­cal approach to the dual-sovereignty doctrine. It may appear counter­ intuitive, even legalistic, as compared to an inquiry focused on a gov­ernmental entity’s functional autonomy. But that alternative would raise serious problems of application. It would require deciding exactly how much autonomy is sufficient for separate sovereignty and whether a given entity’s exercise of self-rule exceeds that level. The results, we suspect, would often be uncertain, introducing error and inconsistency into our double jeopardy law. By contrast, as we go on to show, the Court has easily applied the “ultimate source” test to classify broad classes of governments as either sovereign or not for purposes of bar­ ring retrials. See infra, at 8–11.

Kagan later explains that states, unlike the federal territory of Puerto Rico, draw there authority from a source that predates the Constitution.

Said otherwise: Prior to forming the Union, the States possessed “separate and independent sources of power and authority,” which they continue to draw upon in enacting and enforcing criminal laws. Heath, 474 U. S., at 89. State prosecutions therefore have their most an­ cient roots in an “inherent sovereignty” unconnected to, and indeed pre-existing, the U. S. Congress. Ibid.4

But wait a minute. Beyond the initial 13 states, the 37 other states were admitted pursuant to the authority vested in Congress by the Constitution. In response, Kagan provides a fascinating explication of the so-called Equal Footing doctrine. Her analysis loops in the “equal sovereignty” doctrine discussed in NAMUDNO, but she (pointedly) does not cite Shelby County.

4 Literalists might object that only the original 13 States can claim such an independent source of authority; for the other 37, Congress played some role in establishing them as territories, authorizing or approving their constitutions, or (at the least) admitting them to the Union. See U. S. Const., Art. IV, §3, cl. 1 (“New States may be admit­ ted by the Congress into this Union”). And indeed, that is the tack the dissent takes. See post, at 3–4 (claiming that for this reason the Federal Government is “the ‘source’ of [later-admitted] States’ legisla­ tive powers”). But this Court long ago made clear that a new State, upon entry, necessarily becomes vested with all the legal characteris­ tics and capabilities of the first 13. See Coyle v. Smith, 221 U. S. 559, 566 (1911) (noting that the very meaning of “‘a State’ is found in the powers possessed by the original States which adopted the Constitu­ tion”). That principle of “equal footing,” we have held, is essential to ensure that the nation remains “a union of States[ alike] in power, dignity and authority, each competent to exert that residuum of sover­ eignty not delegated to the United States.” Id., at 567; see Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203 (2009) (referring to the “fundamental principle of equal sovereignty” among the States). Thus, each later-admitted State exercises its authority to enact and enforce criminal laws by virtue not of congres­ sional grace, but of the independent powers that its earliest counter­ parts both brought to the Union and chose to maintain. See Coyle, 221 U. S., at 573 (“[W]hen a new State is admitted into the Union, it is so admitted with all the powers of sovereignty and jurisdiction which pertain to the original States”). The dissent’s contrary view—that, say, Texas’s or California’s powers (including the power to make and enforce criminal law) derive from the Federal Government—contradicts the most fundamental conceptual premises of our constitutional order, indeed the very bedrock of our Union.

This is a fascinating point that I will consider further. The Court in Northwest Austin did not reference the equal-footing doctrine, but I find this to be a satisfying way to ground that decision in the “bedrock” principles of our Union–that states ought to be treated equally, because the root of their authority predates the Constitution itself–even for those latter-added states.

Thomas Colby’s article in the Duke Law Journal, which is not cited here, has a thorough discussion of the equal-footing doctrine and equal sovereignty.

On this view, the equal footing doctrine is just a particular, concrete aspect of a broader and deeper principle. No state, new or old, can have more or less sovereignty than the other states. New states are admitted into the Union on these terms, with the understanding that they, just like the existing states, will now and always be on equal footing and have equal sovereignty with all of the other states. And that means that Congress cannot, even when exercising one of its legitimate powers, enact legislation that treats any of the states (new or old) as unequal sovereigns.

Zachary Price offers a different perspective.

Kagan’s other major constitutional discourse focuses on the provenance of Puerto Rico’s Constitution. She wrote that it was initiated by an act of Congress, and was subject to Congressional review. This was no Philadelphia in 1787.

Congress, in Public Law 600, authorized Puerto Rico’s constitution-making process in the first instance; the people of a territory could not legally have initiated that process on their own. See, e.g., Simms v. Simms, 175 U. S. 162, 168 (1899). And Congress, in later legislation, both amended the draft charter and gave it the indispensable stamp of approval; popular ratification, however meaningful, could not have turned the conven­tion’s handiwork into law.6 Put simply, Congress con­ferred the authority to create the Puerto Rico Constitu­ tion, which in turn confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico’s prosecutors—as it is for the Fed­ eral Government’s. The island’s Constitution, significant though it is, does not break the chain.


Justice Breyer rejects this historical approach, and would adopt a 7-factor functional balancing test to determine a polity’s sovereignty. You can read it for yourself if you’d like/ He traces our Anglo-American lineage back to the fictional King Arthur, rather than the actual Magna Carta. (CT managed to cite Magna Carta today–you can too SGB).

We do not trace Puerto Rico’s source of power back to Spain or to Rome or to Justinian, nor do we trace the Federal Government’s source of power back to the English Parliament or to William the Conqueror or to King Arthur. Rather the Court’s statement means that we should trace the source of power back to a time when a previously nonexistent entity, or a previously dependent entity, became independent—at least, sufficiently inde­ pendent to be considered “sovereign” for purposes of the Double Jeopardy Clause.

Justice Breyer is also indifferent to when the 13 states became independent.

As so viewed, this approach explains the Court’s deci­ sions fairly well. The Federal Government became an independent entity when the Constitution first took effect. That document gave to the Federal Government the au­ thority to enact criminal laws. And the Congress that the document created is consequently the source of those laws. The original 13 States, once dependents of Britain, became independent entities perhaps at the time of the Declara­ tion of Independence, perhaps at the signing of the Treaty of Paris, perhaps with the creation of the Articles of Con­ federation. (I need not be precise.) See G. Wood, Creation of the American Republic 1776–1787, p. 354 (1969) (“The problem of sovereignty was not solved by the Declaration of Independence. It continued to be the most important theoretical question of politics throughout the following decade”). And an independent colony’s legislation-creating system is consequently the source of those original State’s criminal laws.

The Supreme Court somewhat addressed this issue in Ware v. Hylton. (Thanks to Julie Silverbrook for reminding me the name of the case).

What an excellent opinion. Go read it!

Read More