Blog

The lecture notes are here.

The First Amendment – Free Exercise

• Summary (836-838).
• Freedom of Religion (1103-1104).
• Madisons’ Memorial and Remonstrance against Religious Assessments (1104-1106).
• The Free Exercise Clause (1110-1111).
• Wisconsin v. Yoder (1113-1116)
• Employment Division v. Smith  (1116-1124).
• Note 7 on Religious Freedom Restoration Act (RFRA) (1126-1127)
• Reading on Hobby Lobby & RFRA
• Same-Sex Marriage and Religious Liberty
• Church of the Lukumi (1128-1129)
•  Establishment Clause (1133).

 

 

Today, Justice Stevens continued his not-quite-so-busy speaking schedule with an address at Washington University in St. Louis, titled “Some thoughts about a former colleague.” The bulk of the speech is dedicated to Stevens and Scalia’s agreement with respect to Booker and Apprendi, and their disagreement on the 8th Amendment and redistricting. But, as has become his habit, Stevens decides to retread old ground, and revisit Heller. He notes that one of his major disagreements with Nino was about “the role of original intent in interpreting the Second Amendment.”

JPS has been keeping up on his reading, and completed “a few days ago,” The Quartet by Joseph Ellis. Starting on p. 21, Stevens quotes a few paragraphs, verbatim, from the final chapter of Ellis’s book. Ellis closes with this sentence:

The recent Supreme Court decision (Heller v. District of Columbia, 2008) that found the right to bear arms an inherent and nearly unlimited right is clearly at odds with Madison’s original intents.”

I read “The Quartet” last year, and winced when I read this sentence. Let’s count the mistakes from the otherwise careful-historian. First, it was District of Columbia v. Heller, not the other way around. Second, Heller did not guarantee an “nearly unlimited right.” Not even close. Third, Justice Scalia’s majority opinion was not premised on the Framer’s original intent, but on the doctrine of original public meaning originalism. It was Justice Stevens’s dissent that sought to apply the long-discredited doctrine of original-intentions.

In Heller, Justice Scalia’s majority opinion demonstrated that the original understanding of the Second Amendment protects an individual right to keep and bear arms, totally apart from militia service. Justice Stevens in dissent did not offer a living-constitutionalist response, arguing that guns do not fit with present-day circumstances. Instead, he ventured on his own originalist journey, trying to demonstrate that the right was tied to militia service. But where he faltered was applying the then-long-discredited original intent strand of originalism. He was about three decades behind the jurisprudential curve. This approach was canonized in an influential speech given by Attorney General Edwin Meese to the American Bar Association, calling for a restoration of a “jurisprudence of original intention.” Over the next decade, however, under the leadership and vision of Justice Antonin Scalia, the jurisprudential movement shifted to ascertaining the original public meaning of terms, rather than the framers purposivist intent. This is a movement that Justice Stevens apparently missed.

Randy Barnett explained Stevens’s miscue in a 2008 WSJ editorial:

Justice Scalia’s opinion is the finest example of what is now called ‘original public meaning’ jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on ‘original intent’; the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a ‘larger context.’ Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using ‘original intent’ or the original principles ‘underlying’ the text to negate its original public meaning.

I made a similar point in a paper I authored for Prof. Joyce Malcom’s class on common law-rights in 2008.

“Rather than ascertaining the original public meaning, [Justice Stevens] focuses almost exclusively on the drafting history, and improperly attempts to guess the intentions of our framers.”

Even with Justice Scalia no longer able to respond, Stevens is still making the same mistakes.

There is a very surreal quality to what I have dubbed Justice Stevens’s rehab tour. In over two-dozen speeches given since his retirement, he continually tells any audience who will listen that he was right and Justice Scalia was wrong. I cannot find any similar example of such behavior from a retired Justice, and always found it bizarre. But now, even with Justice Scalia in the great beyond, Justice Stevens still feels compelled to explain why Nino was wrong.

Update: Tony Mauro discussed the speech, and quoted me, in the National Law Journal:

On the Second Amendment, Stevens said he and Scalia disagreed on “critical points.”

One was whether the framers understood the amendment to protect a right of civilians to use firearms, or the right of states to maintain a militia. In the 2008 case District of Columbia v. Heller, Scalia staked out the first position for the majority, and Stevens embraced the second in dissent.

Defending his point of view on Monday, Stevens quoted from The Quartet, a 2015 book by historian Joseph Ellis about the role of George Washington, Alexander Hamilton, John Jay and James Madison in creating the nation.

Ellis concluded that the Second Amendment was intended to promote state militias, not an individual right. The Heller decision, Ellis wrote, is “clearly at odds with Madison’s original intentions.”

Stevens said he and Scalia also diverged on the broader question of “whether originalism should provide the sole means of interpreting the Constitution.” On that point, Stevens quoted Ellis as saying the leaders of the American Revolution believed that future generations should not regard the words of the Constitution as “sacred script.”

Supreme Court scholar and blogger Josh Blackman wrote in a post Monday that Stevens has criticized Scalia’s position in Heller in more than two dozen speeches since retiring.

“He continually tells any audience who will listen that he was right and Justice Scalia was wrong,”Blackman wrote. “I cannot find any similar example of such behavior from a retired justice, and always found it bizarre. But now, even with Justice Scalia in the great beyond, Justice Stevens still feels compelled to explain why Nino was wrong.”

Today the Supreme Court denied certiorari in Arrigoni Enterprises v. Durham, a case that presented the question of whether to overturn Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. Justice Thomas, joined by Justice Kennedy, dissented from the denial of certiorari, and both seemed primed not only to reconsider Williamson County, but overrule it.

As Thomas describes it, the one-two punch of Williamson County and San Remo Hotel v. San Francisco, make it effectively impossible for property owners to ever seek review in federal court for violations of the Takings Clause. Even worse, through strategic gamesmanship by the states, some plaintiffs are never able to obtain any review at all.

In Williamson County, the Court ruled that a plaintiff ’s allegation that local government action resulted in a taking is not “ripe” for review in federal court until the plaintiff “seek[s] compensation through the procedures the State has provided for doing so.” Id., at 194. In doing so, the Court superimposed a state-litigation requirement on the Fifth Amendment’s Takings Clause. As Members of this Court have noted, the Constitution does not appear to compel this additional step before a property owner may vindicate a Takings Clause claim. San Remo Hotel, L. P. v. San Francisco, 545 U.S. 323, 349 (2005) (Rehnquist, C.J., joined by O’Connor, KENNEDY, and THOMAS, JJ., concurring in judgment). …

Moreover, employing the rules announced in Williamson County and San Remo Hotel, clever state-government attorneys have rendered a nullity even the chance at review in state court. When a plaintiff files a suit in state court to exhaust his remedies as Williamson County in- structs, state-government entities and officials may re- move that suit to federal court under 28 U. S. C. §1441. Once in federal court, some state defendants have moved to dismiss on the ground that “the plaintiff did not litigate first in the state court.” Berger, supra, at 673. And some federal judges have dismissed the claims, rather than remanding them. See, e.g., Koscielski v. Minneapolis, 435 F. 3d 898, 903 (CA8 2007) (approving of the dismissal of a removed takings claim for lack of finished state-court procedures). This gamesmanship leaves plaintiffs with no court in which to pursue their claims despite Williamson County’s assurance that property owners are guaranteed access to court at some point.

Thomas and Kennedy would have granted certiorari, to avoid relegating the Takings Clause to “second-class status.”

Along these lines, Williamson County has downgraded the protection afforded by the Takings Clause to second- class status. Plaintiffs alleging violations of other enu- merated constitutional rights ordinarily may do so in federal court without first availing themselves of state court. But the same is not true for a Takings Clause plaintiff. The other “notable exception” is “for prisoner plaintiffs.” Samaha, On Law’s Tiebreakers, 77 U. Chi. L. Rev. 1661, 1722 (2010). We should consider overturn- ing Williamson County because there is “no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation.” Dolan v. Tigard, 512 U. S. 374, 392 (1994).

This echoes Justice Thomas’s dissent from denial of certiorari in December, where he implored the Court not to treat the Second Amendment as a “second-class right.”

“I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.”

The greatest ruse of Footnote Four is that the Court isn’t even consistent on giving heightened scrutiny to the enumerated rights–Second Amendment and Takings Clause among them–let alone unenumerated rights that are deemed “fundamental.” The Court should not be free to pick and choose which constitutional rights it likes, and accordingly give them greater protections.

 

The National Constitution Center hosted a podcast with me and Christina Rodriguez (Yale) to discuss the oral arguments in U.S. v. Texas. My stirring closing arguments, with ample citations to Justice Jackson, begins around 41:00.

On Monday, I explained why the Solicitor General was misguided when he stated that that President Bush’s 1990 Family Fairness program was “extrastatutory.” In a post on Wednesday, Marty Lederman endorsed the Solicitor General’s arguments concerning the Family Fairness program. (He graciously cited our Cato Institute brief). At the ImmigrationProf Blog, Peter Margulies offers a response to Marty. (Peter was my co-author on amicus briefs on behalf of the Cato Institute in the Southern District of Texas and the Fifth Circuit). Here is Peter’s response to Marty’s position:

      Mention of the Immigration Act of 1990 highlights Marty’s stylized account of the Bush 41 Family Fairness program, which aided the spouses and children of 1986 Immigration Reform and Control Act (IRCA) legalization grantees. Marty cites the excellent Yale Law Journal article by Adam Cox and Cristina Rodriguez acknowledging that Family Fairness’s beneficiaries could obtain a lawful status under ordinary immigration law as IRCA grantees’ spouses and children, once those IRCA grantees became LPRs. However, Marty then second-guesses Cox and Rodriguez’s conclusion, asserting that IRCA grantees would have to wait a full five years for LPR status. Here, Marty falls victim to the same immigration gremlins who were at Monday’s argument, when the SG stated wrongly that asylees have no path to citizenship (they do; it’s five years from the grant of asylee status: see 8 U.S.C. § 1159(b)). In reality, pace Marty, IRCA grantees only had to wait a short one and a half years for LPR status. See id. § 1255a(b)(1)(A). That short time-frame, plus the 1990 Act’s huge increase in the numbers of visas for spouses and children of LPRs, set the stage for timely receipt of legal status by Family Fairness beneficiaries.   

One could argue that the 1990 Act was signed into law (in November of that year) after Family Fairness, and so is irrelevant to immigration officials’ power when Family Fairness was announced (in February of 1990). However, as our brief explains (pp. 18-19) that view fails to understand the nature of Congress’s delegation of discretion to immigration officials. At its heart, deferred action serves as a stay of removal, preserving the status quo when a change would be disruptive or inefficient and a legal status is within the beneficiaries’ reach. To this end, immigration officials rolled out Family Fairness against the backdrop of extraordinary legislative-executive collaboration on immigration reform, which contrasts with today’s impasse between the political branches.

Prior to Family Fairness’s roll-out, both the House and Senate had voted separately to bar deportation of the children and spouses of IRCA grantees. See Josh Blackman’s Georgetown Law Journal Online piece here (pp. 121-25). By February, 1990, the dispute between the House and Senate was solely about the cut-off date for entry into the U.S. of those children and spouses – some legislators wanted a 1986 cut-off date, while others pressed for a later date that would shield more people. Informed observers, including immigration officials, knew that Congress would resolve this issue, and enact relief for this class. In the interim, rushing to deport children and spouses who already had a path to a legal status under existing immigration law seemed both harsh and disruptive. After all, those spouses and children would be able to obtain visas within a short period of time regardless, particularly when officials factored in the likelihood of further legislative immigration reform.

There is a certain irony that the Solicitor General has to effectively argue that what President George H.W. Bush was “extrastatutory,” without any reference to congressional acquiescence, in light of the government’s usually broad understanding of that doctrine.

The key element concerning Family Fairness, as well as other deferred action programs, is that they served as a bridge for someone who would imminently receive lawful status by operation of law. As far as I can tell, I was the first to advance this “bridge” approach in the Georgetown Law Journal Online in January 2015. Here is the crux of the argument:

As OLC correctly noted, one of the best measures of the lawfulness of DAPA is its consistency with prior incidences of congressional acquiescence in deferred action pro- grams. OLC identified five prior exercises of deferred action for “certain classes of al- iens” that had been supported by Congress: deferred action for (1) self-petitioners under the Violence Against Women Act, (2) T and U visa applicants, (3) foreign students af- fected by Hurricane Katrina, (4) widows and widowers of U.S. citizens, and (5) Deferred Action for Childhood Arrivals (DACA).89 Based on this history, OLC opined that DAPA is consistent with the scope and intent of these prior programs.

The facts do not support this conclusion. The scope of Congress’s acquiescence in the Executive’s use of deferred action is far more constrained than the OLC opinion suggests. In the first four incidences of deferred action, all of which were sanctioned in one way or another by Congress, one of two qualifications existed: (1) the alien had an existing law- ful presence in the U.S., or (2) the alien had the immediate prospect of lawful residence or presence in the U.S. In either circumstance, deferred action acted as a temporary bridge from one status to another, where benefits were construed as immediately arising post-deferred action. These conditions bring the deferred action within the scope of con- gressional policy. However, neither limiting principle exists for the fifth instance of de- ferred action, DACA, or its close cousin, DAPA.

…

In 1987, the INS put on hold deportations of children under the age of 18 that were living with a parent covered by the IRCA.141 Attorney General Edwin Meese’s policy focused on circumstances where there were “compelling or humanitarian factors” that counseled against deportations.142 This temporary deferral of deportations was meant to give the parent the appropriate time to complete the process, and then allow the parent to petition for a visa for the child. It made little sense to deport children whose parents would, in due time, receive lawful status, and by extension petition for a visa for their children.143 On the other side of this deferral, a legal status awaited the child. In this sense, the deferral of deportations served as a bridge.

In July of 1989, the Senate passed what would become the Immigration Act of 1990. This bill, among other provisions, provided relief for the children and spouses of IRCA beneficiaries. The Senate bill was not brought up for a vote in the House until October 1990, though, as the New York Times reported at the time, “passage of the new legislation seemed almost certain.”144 It ultimately passed by a vote of 231 to 192, with 45 Republi- cans voting yea and 65 Democrats voting nay.145 Despite disagreements about the eco- nomics of the bill, the Times reported, “few dispute the humanitarian aim of uniting fami- lies.”146

In the interim, between the Senate vote in July of 1989 and the House vote in October of 1990, spouses and children of IRCA beneficiaries, who would soon be provided with a  process to obtain lawful status, were still subject to deportation. In response, in February of 1990, INS Commissioner Gene McNary announced a new policy147 to expand the de- ferral of deportations of roughly one hundred thousand—not one and a half million (as reported in the OLC opinion)148—spouses and children of IRCA beneficiaries. This was a temporary stopgap measure to protect those who would soon receive a lawful status after the legislation was enacted.

On November 29, 1990, President George H.W. Bush signed into law the Immigra- tion Act of 1990. On signing the law, the President said it “accomplishes what this Ad- ministration sought from the outset of the immigration reform process: a complementary blending of our tradition of family reunification with increased immigration of skilled individuals to meet our economic needs.”149 With the signing of the law, the Family Fair- ness policy immediately become moot—exactly what the President had in mind by tem- porarily putting on hold deportations until Congress could finish passing the bipartisan legislation.

Both Presidents Reagan and Bush used prosecutorial discretion to keep together fami- lies, in consonance with congressional policy. For the 40th President, the deferrals were used to afford time so that parents could petition for a visa for their children. For the 41st President, the deferrals were a temporary stopgap measure in the several months between votes in the Senate and the House. In both cases, it made little sense to rip apart families, when in due course the spouse and children could receive a visa, ancillary to statutory authorizations. As a 1990 article in the New York Times explained, a legal resident under the 1986 amnesty with lawful status “would [soon] be able to file a petition for his wife to be granted legal status, a process expected to take about two years.”150 Protection was extended based on someone who already benefited from Congress’s naturalization laws.

While the American Immigration Council calls President George H.W. Bush’s policy a “striking historical parallel to today’s immigration challenges,”151 the Family Fairness policy teaches just the opposite lesson. Presidents Reagan and Bush deferred deporta- tions for family members who would shortly be able to receive a lawful status by virtue of the status of their spouse or child. In sharp contrast, DAPA defers deportations for par- ents of citizen children—who may need to wait up to twenty-one years to petition for a visa—and parents of LPRs—who will never be able to petition for a parental visa.

…

In short, Family Fairness served as a bridge—a very temporary one—until Congress could complete the legislative process. President George H.W. Bush’s short-lived volun- tary departure program was connected to the IRCA and sandwiched between the Senate and House voting on a bipartisan bill. As Professor Margulies explains, “All of the relief provided under both Family Fairness and the 1990 Act was ancillary to legal status that would be available within a discrete and reasonably short period to recipients of that re- lief.”159

I am glad that this argument has proved helpful, as both Texas and the U.S. House of Representatives have endorsed the bridge/pathway analysis of past exercises of prosecutorial discretion.

Erin Murphy cited these examples during arguments:

MS. MURPHY: There’s really ­­ there’s only about four deferred action programs that were class­based. Those all were path to lawful status. U visas, T visas, people who held F1 visas during Hurricane Katrina

As did Scott Keller:

MR. KELLER: Well, Justice Kagan, we have multiple arguments. The first is a statutory argument.  And our backup argument, which is a response to the  Executive’s congressional acquiescence argument, is that at most, Congress would have acquiesced to a practice of very small uses that were bridged.

…

If there was no previous lawful status or an [imminent] lawful status, there’s no way Congress has acquiesced to that.

I also addressed the Solicitor General’s “Saving Construction” request at National Review.