Blog

Today Judge Lamberth of D.D.C. issued his decision in Warafi. In this case, a Guantanamo detainee alleges that he can no longer be held under the authority of the 2001 AUMF  because the hostilities with the Taliban are over. Marty Lederman has a detailed analysis of the opinion. Here, I want to focus on one aspect of Judge Lamberth’s decision, and the government’s litigation strategy, that bears on Texas v. United States.

One of the major questions in this case is the impact of President’s statements about whether the hostilities with the Taliban have finished. The Court addressed a related issue in Footnote 52 of Hamdan.

Justice THOMAS looks not to the President’s official Article 36(a) determination, but instead to press statements made by the Secretary of Defense and the Under Secretary of Defense for Policy. See post, at 712-713 (dissenting opinion). We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media.

Judge Higginson cited this footnote in his dissent in Texas v. United States:

Instead, as noted earlier, the district court looked above DHS, the executive agency, to President Obama, the executive-in-chief to find contradiction to DHS stated purpose and emphasis on case-by-case discretion. For good reason, however, the Supreme Court has not relied on press statements to discern government motivation and test the legality of governmental action, much less inaction. See Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006) (“We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media.”). Presidents, like governors and legislators, often describe law enthusiastically yet defend the same law narrowly.

Back to Warafi. In this case, the government opposed Warafi’s petition based explicitly on President Obama’s statements. As Judge Lamberth notes in his opinion:

 

On page 27 of the government’s opposition, the government disputes the import of the President’s statements, but does not challenge whether they are admissible to show the extent to which hostilities still exist.

 

Notably, the statements were made in press conferences–the very sort of unofficial remarks the Hamdan Court said were not relevant in “evaluating the legality of executive action.”

That the government is expressly relying on these statements here,  undercuts the position advanced by Judge Higginson in Texas v. United States. As I’ve argued, President Obama’s press statements about the scope of his power to grant deferred action and work authorization to the parents of citizens are relevant to the separation-of-powers challenge at issue in Texas v. United States.

Judge Lamberth concluded that the “President’s position, while relevant, is not the only evidence that matters to this issue.”

I think this is correct. The President’s press statements are not enough to establish what the official position of the government is, but is relevant to the determination of whether the Executive Branch is violating the law.

Also relevant to Texas’s case is the court, though skeptical of post hoc statements made by the President, acknowledges that the ex ante statements that the war is over may be false.

Judge Lamberth concludes with an interesting anecdote that works in (of all cases) the fact that the ACA’s mandate was enacted as a penalty but defended as a tax.

This discussion does have some import for Texas v. United States. Some good stuff for Texas, some good stuff for the United States. But on balance, it rejects the notion that the President’s statements are inadmissible–the position that the dissent took up, but the majority did not need to address because the case was resolved on narrow APA grounds. If nothing else, DOJ is estopped from making this position.

New York Magazine has a lengthy profile of Laurence Tribe, whose challenge to provisions of the Clean Air Act has drastically altered his standing among fair-weather friends on the left. One of the more interesting aspects of the article concerned his rise and fall in the Obama Administration.

Upon the election of President Obama in 2008, Tribe anticipated an “influential” role in the new presidency:

Tribe remained in touch with Obama after he graduated and was one of his early political champions. He introduced his “inspiring” former student to the people of Iowa in a 2007 campaign ad. On the night of the 2008 election, Tribe emotionally embraced Obama in Grant Park. “As a nation,” he wrote in a blog post the next morning, “we have come of age.” In anticipation of an influential role in the new administration, Tribe prepared to move to Washington.

Tribe envisioned himself as some sort of Rule-of-Law Czar to handle Guantanamo and other big issues.

Tribe was offered assurances of a high-level job. In 2009, he wrote a private letter to Obama suggesting a “newly created DOJ position dealing with the rule of law.” He seemed like an ideal candidate to sort out dilemmas like Guantánamo. “I thought that for me to be giving broader advice on constitutional issues would make sense,” Tribe says.

This position ostensibly would have been outside the normal DOJ hierarchy–Attorney General, Assistant Attorney General, Deputy Assistant Attorney General, etc.  The “czar” position would have hovered over a lot of turfs–among both political appointees and civil servants. He would have had direct access to the President himself.

But that didn’t happen, due to politics and the turf war.

When he got there, however, he discovered that Obama hadn’t changed politics. “It’s not just all the terrible things that people say behind each other’s backs,” Tribe says. “It’s how jealous people are of their turf, even when you are part of the same administration.” …

“But it was clear that was stepping on people’s toes.”

Instead, Tribe was stuck with an odd position that didn’t seem to have much authority:

He instead took a nebulous Justice Department job, “senior counselor for access to justice,” and did grassroots work like aiding homeowners facing foreclosure.

The New York Times reported in 2010:

In that position, created especially for him, Mr. Tribe has been asked to suggest ways to improve legal services for the poor, find alternatives to court-intensive litigation and strengthen the fairness and independence of domestic courts. But Mr. Tribe has a small staff, a limited budget, little concrete authority and a portfolio far less sweeping than the one he told friends he had hoped to take on in Washington.

He is also largely invisible. The Justice Department is not allowing him to give interviews, apparently in part because of nervousness in the administration that his unabashedly liberal views might draw criticism or that Mr. Tribe, described by friends as having a big intellect and a healthy ego, might stray from his assigned lane.

…

Mr. Obama himself made clear that he wanted to find a place for Mr. Tribe, according to interviews with administration officials who would speak only on the condition of anonymity. But for those putting together the staff, figuring out what to do with Mr. Tribe was difficult.

The Times in 2010 suggested that Tribe could not be put up for a position that requires Senate confirmation–an impossible vote after his opposition to Judge Bork’s nomination.

For that reason, officials decided that Mr. Tribe could not be given a position that would require Senate confirmation, like solicitor general, because Republicans would probably go to war against him, with decades of legal writings to mine for ammunition.

But then they hint what was really up–confirmed by the recent profile of Tribe.

There was also concern over how his presence might play out internally, several administration officials said. Some officials feared that he might be unmanageable, intruding into all manner of policy areas and able to call on Mr. Obama as a trump card.

“He has an ego,” said Charles Fried, a former solicitor general in the Reagan administration and a fellow Harvard law professor. “He’s entitled to it. He’s earned it.”

Even with this low position, some expected the close relationship would help–and it was this close relationship that doomed Tribe’s prospects.

Still, several of his Harvard colleagues noted that he may wield unofficial influence because of relationships with former students and protégés throughout the government — not least with Mr. Obama.

“When the president of the United States respects your views, that conveys more authority than a title,” said Alan M. Dershowitz, a Harvard law professor.

Back to 2015, the New York Magazine article reports that members of the Administration resented Tribe’s close relationship with the President.

Still, some colleagues remained resentful of his relationship with the president. Obama occasionally summoned him to the Oval Office to talk about abstract issues of law, but even those rare interactions created friction.

Perhaps the most striking event was when Rahm Emanuel–who earned his nickname of “The Godfather“–gave Tribe a talking-to.

“Rahm Emanuel pulled me aside at a party at the W Hotel,” Tribe recalls. “He said, ‘I heard you went to the Big Guy behind my back.’ ”

The low point of his stint in the presidency came to a head when Ed Whelan posted on his blog a letter Tribe wrote that was very critical of then-Judge Sotomayor. Tribe urged the President to nominate his close confidante Elena Kagan. This letter further worsened Tribe’s standing in the Administration.

Kagan and Sotomayor were both on the Court by the time the letter emerged in late 2010, so it only served to damage its author. Citing his health, Tribe soon resigned.

Curiously, the 2010 Times article offers these prescient comments:

Mr. Tribe’s friends said that if he felt he could not do something meaningful in Washington, he would quit.

“If Larry Tribe is in any way viewed as — or is in fact — only window dressing,” Mr. Ogletree said, “then I have no doubt that he would resign from that position and return to Cambridge in a New York minute.”

The New York Magazine article quotes Tom Goldstein as suggesting that someone in the White House leaked it.

“I assume someone in the administration leaked it to injure Larry,” Tom Goldstein says.

Ed Whelan–who I doubt is buddy-buddy with the Obama White House–suggests Goldstein’s speculation is absurd.

I’ve already said all that I’m going to say on who my source was. But I can’t say that it strikes me as reasonable to assume that someone in the Obama administration would choose me to leak to.

Goldstein also said in 2010 that Tribe was happy with his position at DOJ:

And Thomas C. Goldstein, a prominent Supreme Court lawyer who has worked with Mr. Tribe for more than a decade, said Mr. Tribe had described himself as happy and busy with the job, which he assumed in March.

Not so much.

In any event, Tribe closes by noting that he hasn’t spoken to the President since 2011 or so–not at all during his second term in office.

Tribe told me he hasn’t spoken to the president in almost four years and hasn’t had any direct communication with the White House about the EPA case. “It’s all mean anonymous quotes,” he says. But he would very much like to know how Obama regards him today. “Do you really think that Barack or people close to him are pissed at me?” Tribe recalls asking his former research assistant Ron Klain, who was Vice-President Biden’s chief of staff. “He said, ‘No, I think they realize that your credibility when you’re on their side is enhanced by the fact that you’re not always on their side.’ ”

“He’s assuming a largeness of spirit,” he says, “that may or may not be there.”

What a fascinating insight into how administration politics work.

The Washington Post reports that George Washington University will no longer require applicants to take the SAT or ACT. Why? Because “standardized tests are a barrier to recruiting disadvantaged students” and the exams are “culturally biased and often fail to reflect academic potential.” Not even the “holistic” approach–blessed by the Court in Grutter–can accomplish enough diverse students:

“Although we have long employed a holistic application review process, we had concerns that students who could be successful at GW felt discouraged from applying if their scores were not as strong as their high school performance,” said Dean of Admissions Karen Stroud Felton. “We want outstanding students from all over the world and from all different backgrounds – regardless of their standardized scores – to recognize GW as a place where they can thrive.”

Specifically, GW thinks the SAT discourages minority students from applying to more selective schools, out of a fear they won’t get in.

But GWU officials said that in recent years they have grown worried that their efforts to diversify were hitting obstacles. They feared that some students with strong records in high school were not applying because of a misguided perception that their scores weren’t good enough.

Translation: the applicant pool of diverse students is not big enough.

“We want those students to have us on their radar, and not self-select out of the pool,” said Laurie Koehler, GWU’s senior associate provost for enrollment management. That is the primary reason for GWU’s policy shift, which takes effect for students seeking admission for fall 2016. …

GWU wants to raise its national profile and diversify its student body. With a full price of more than $62,000 for tuition, fees, room and board, GWU provides significant grants to students in need. Fourteen percent of undergraduates receive need-based federal Pell grants. Fourteen percent also are black or Hispanic.

GW is not alone. Wake Forest University also dropped the standardized test requirement to recruit more minority students.

Wake Forest University, 27th on the national university list, said it has recruited more minority students since announcing a test-optional policy in 2008. “We find much more value in a student’s accomplishments in four years of high school than in four hours of Saturday testing,” said Martha Blevins Allman, dean of admissions at the private university in Winston-Salem, N.C.

If this argument seems familiar to readers of this blog, it should. In his dissent in Grutter v. Bollinger, Justice Thomas contends that if schools really want to increase diversity–and this is indeed a “compelling” interest that satisfies strict scrutiny under the Equal Protection Clause–then there is a much easier way of accomplishing this goal then using race-based preferences: drop the discriminatory admission criteria. Thomas cites the success of historical black colleges that do no have stringent admission criteria. But of course, Thomas writes, “elite” schools will not do this as it will impact their academic selectivity.” Instead, they turn to affirmative action as a way to keep their elite rankings, and admit more minority students, without harming their overall academic standing.

Read this passage carefully.

One must also consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce “academic selectivity,” which would in turn “require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.” Brief for Respondents Bollinger et al. 33—36. In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status.4

4.  The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of “diversity” are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School’s reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.

And this as well–the GW Dean basically concedes Thomas’s point.

  The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions “standards” that, in turn, create the Law School’s “need” to discriminate on the basis of race. The Court validates these admissions standards by concluding that alternatives that would require “a dramatic sacrifice of … the academic quality of all admitted students,” ante, at 27, need not be considered before racial discrimination can be employed.6 In the majority’s view, such methods are not required by the “narrow tailoring” prong of strict scrutiny because that inquiry demands, in this context, that any race-neutral alternative work “ ‘about as well.’ ” Ante, at 26—27 (quoting Wygant, 476 U.S., at 280, n. 6). The majority errs, however, because race-neutral alternatives must only be “workable,” ante, at 27, and do “about as well” in vindicating the compelling state interest. The Court never explicitly holds that the Law School’s desire to retain the status quo in “academic selectivity” is itself a compelling state interest, and, as I have demonstrated, it is not. See Part III—B, supra. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system–it cannot have it both ways.

    With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications, see Brief for United States as Amicus Curiae 13—14, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination. The Law School concedes this, but the Court holds, implicitly and under the guise of narrow tailoring, that the Law School has a compelling state interest in doing what it wants to do. I cannot agree. First, under strict scrutiny, the Law School’s assessment of the benefits of racial discrimination and devotion to the admissions status quo are not entitled to any sort of deference, grounded in the First Amendment or anywhere else. Second, even if its “academic selectivity” must be maintained at all costs along with racial discrimination, the Court ignores the fact that other top law schools have succeeded in meeting their aesthetic demands without racial discrimination.

CT is exactly right. Every time I teach Grutter, I always have several students (some who were accepted to UT Austin through the Top 10% plan, which itself is race conscious) argue that SAT is a bad indicator of academic performance, and it should be scrapped.

GW has now scrapped it, and may experience an increase in the minority applicants.

Totally aside from the constitutional issue, how does this affect U.S. News rankings? If a student doesn’t have an SAT score to report, then it can’t possibly factor in the school’s median SAT numbers for purposes of rankings. They still have a GPA though, so that factors in.

I tell a lot of puns. Some people like them. Other people groan. Others hate them. This article in The Atlantic provides an interesting discussion of the varied treatment towards puns. This explanation, I’m sure, will make sense to those who like puns, and make those who dislike puns groan even more:

But the plight of any dictionary-writer is the inherent fluidity of language, which is the pun-trepreneur’s delight.

“Puns are threatening because puns reveal the arbitrariness of meaning, and the layers of nuance that can be packed onto a single word,” says John Pollack, a communications consultant and author of The Pun Also Rises. “So people who dislike puns tend to be people who seek a level of control that doesn’t exist. If you have an approach to the world that is rules-based, driven by hierarchy and threatened by irreverence, then you’re not going to like puns.”

Peter McGraw, the director of the Humor Research Lab at the University of Colorado, Boulder, has a theory about what makes things funny. He calls it a benign violation—something that subverts or threatens a norm, but not in a way that feels harmful. Puns would fall under the pun-brella of communication violations, though both Pollack and McGraw point out that they’re often more about getting an “Aha!” than a “Haha!”

“They can be a demonstration of wit, of cleverness,” McGraw says. “You’re relying on a person’s ability to parse language, to understand the nuances and complexities of words.”

I will keep using puns, rules be damned.

The National Law Journal asked several LawProfs for their reactions to the “Atticus” in Go Set a Watchman. Here are my (brief) quotes:

“How many of us would stare down a lynch mob to protect their client? Would you be willing to risk your life for a client?”

“I think we should read [‘Watchman’] on it s own and not let it sully Atticus Finch as a character.”

Also, George Mason LawProf Michael Krauss–who taught me about the triumph and failings of Atticus in To Kill A Mockingbird–offers this remark:

“He’s a classic hero. He’s a father. He’s a defender of the weak. He does work for barter for the poor. He believes absolutely in integrity.”

You can read my extended comments on GSAW here and here.

Update: Karen Sloan wrote a second piece at NLJ that quotes Michael and me at some greater length:

Michael Krauss, who discusses Finch in his legal ethics courses at George Mason University School of Law, decided not to read “Watchman” because of unfavorable reviews. “To me, it’s irrelevant. I get everything about the practice of law — about good, about evil, about the importance of truth — I get it all in this marvelous book,” he said referencing “Mockingbird.” Krauss never viewed “Mockingbird”‘s Finch as the perfect lawyer — the character’s focus on the truth perhaps doomed his client in court. “Atticus wanted to use [his client] Tom Robinson’s case to teach Maycomb a lesson about its racism — to show Maycomb in its heart what it really was, and he succeeded,” Krauss said. “But is that one’s duty to one’s client?”

Josh Blackman, a constitutional law professor at the South Texas College of Law, read the pages of “Watchman” in which Jean Louise and Finch discuss their reactions to Brown v. Board of Education, but was discouraged from finishing the book by friends who warned it would “break my heart.” He views the two Finches as utterly distinct, citing factual discrepancies between the novels, as when Robinson — found guilty in “Mockingbird” — wins acquittal in a brief flashback in “Watchman.”

“People are sensitive to these kinds of things, and it’s not inconceivable that they will punish this fictional character for these subsequent actions,” Blackman said. “If I get a vote, judge Atticus Finch by ‘To Kill a Mockingbird.’ The Atticus Finch in ‘Go Set a Watchman’ is a different character with the same name.”

Still, “Watchman” accurately captures the way many people viewed school segregation at the time, Blackman said. Jean Louise and Atticus agree that the Supreme Court bulldozed over states’ rights — although Jean Louise also says the court “had to do it.”

“There was a fairly popular thought back then that integration will take its own time and course and that you can’t force it,” Blackman said. “It’s foreign to people today, but it’s not irreconcilable that you could be in favor of equality of the races, but on its own time.”