At the Federalist Society’s student conference at Columbia Law School, Eugene Volokh and Rob Weiner had a fascinating debate on Rule. 8.4(g) and the First Amendment. You can read my take, which is forthcoming in the Georgetown Journal of Legal Ethics.
Here is the moment:
According to the Billy Williams, the U.S. Attorney for the District of Oregon, a state judge helped an alien evade ICE agents waiting outside her court room.
Oregon’s top federal prosecutor says a Multnomah County judge helped an illegal immigrant elude ICE agents waiting to deport him. It happened at the Multnomah County Justice Center on January 27 when Diddier Pancheco entered a change of plea for a DUI case, KOIN 6 News learned. ICE agents were reportedly there waiting for him at their usual spots.
But he left through a different door typically used only by court officials. U.S. Attorney Billy Williams said he believes someone helped him get through that door. “I thought it was inappropriate, I thought it was unprofessional,” Williams said. “I strongly believe that it just cannot happen again.” Monica Herranz was on the bench acting as a court referee at the time. Williams said he’s unsure whether Herranz instructed Pancheco to leave through that door. “I don’t know exactly what the referee did inside the courtroom,” Williams said.
Could Congress enact a law requiring state judges to enforce federal immigration law? The answer is probably no–but not for the reasons you may think.
First, Printz expressly exempted state judges from the commandeering doctrine. This flows from the Supremacy Clause, which expressly provides that stated judges are “bound” by the Supreme Law of the Land, whereas state-executive officials are not. As I discuss in my article, State Judicial Sovereignty.
The only clear reference to state courts in the Constitution is Article VI, which provides that the “judges in every state shall be bound thereby” by the supreme law of the land.13 As discussed at some length in Printz v. United States, while the state judges are bound by this law, state executive and legislative branch officials are not so bound.14 “Members of the several State Legislatures, and all executive and judicial Officers,” Justice Scalia wrote for the Court, are only “bound by Oath or Affirmation, to support this Constitution.”15
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Further, the “Supremacy Clause, Art. VI, cl. 2, announced that ‘the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.’”98 This is unremarkable, Scalia contended. Judges, unlike legislatures or executives, “applied the law of other sovereigns all the time” under the doctrine of “principle underlying so-called ‘transitory’ causes of action[,]” whereby “laws which operated elsewhere created obligations in justice that courts of the forum State would enforce.”99 This principle is also implicit in the Full Faith and Credit Clause, which “generally required such enforcement with respect to obligations arising in other States.” Thus, it is “understandable why courts should have been viewed distinctively in this regard.”100
The second point is more fundamental. State judges, like all judges, can only act where they have jurisdiction. Congress cannot create state-court jurisdiction. Therefore, to enforce federal immigration law, state courts would have to rely on legislation vested by the state legislature, or the state Constitution. As far as I know, no state court currently exercises such jurisdiction–even in courts of general jurisdiction. (This was not always the case, as Justice Scalia notes in Printz, state courts were routinely asked to hear immigration cases in the 19th Century). Thus, a state judge could decline to enforce federal immigration law, citing a lack of subject matter jurisdiction.
A far more difficult question is what happen if a state affirmatively enacts a law that withdraws from their courts of general jurisdiction the power to hear federal immigration matters. One of the first cases to test this principle was Prigg v. Pennsylvania, which held that state judges could not be compelled to enforce the Fugitive Slave Act, because the Commonwealth deprived them of such jurisdiction.
Another precedent on point, cited by Chief Justice Shaw but not by Justice Day or Justice Scalia, is Prigg v. Pennsylvania. This case considered whether the Fugitive Slave Act preempted a Pennsylvania law that prohibited returning runaway slaves in Pennsylvania back to slave states. In this notorious 1842 opinion, Justice Story found the Fugitive Slave Act “to be clearly constitutional, in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates.”132 It is the last element that is most relevant to our discussion. The Fugitive Slave Act required state judges to enforce the law. In this oft- forgotten portion of the opinion, which turned out to be quite significant,133 Story—who otherwise believed in autonomy of the two separate courts—found that state courts could be exempted from enforcing the Fugitive Slave Act if state legislatures deprived them of jurisdiction to do so.134 After all, courts without jurisdiction can do nothing.
With respect to the “authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still, on the point, in different states, whether state magistrates are bound to act under it, none is entertained by this court, that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation.”135 In other words, in the normal course, in courts of general jurisdiction, state courts were obligated to enforce federal law. But, state legislation could deprive state judges of subject matter jurisdiction concerning the Fugi- tive Slave Act. (Many states would go on to do just that after Prigg, pre- venting their state judges from being complicit in the Act.) This was ef- fectively the reasoning relied on by Chief Justice Shaw in Stephens, in finding that the Massachusetts statute that deprived state courts of juris- diction over naturalization matters was constitutional. In Haywood v. Drown, Justice Thomas likewise noted that in Prigg v. Pennsylvania, the Supreme Court concluded that the state courts could not “be compelled to enforce” the 1793 Fugitive Slave Act.136
This portion of Prigg is in conflict with the Court’s 2009 decision in Haywood v. Drown, which invalidated a New York law that “divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers” under 42 U.S.C. § 1983, and consolidated jurisdiction in specific courts of claims. As Justice Thomas noted in his dissent, the majority opinion doesn’t mention Prigg. I maintain that Drown was wrongly decided, and here Justice Story got it right.
In any event, an Oregon law that deprived courts of jurisdiction over federal immigration matters would run afoul of Drown, but not the Constitution.
On Monday at noon, I will be speaking at the Cardozo School of Law Federalist Society Chapter on ABA Model Rule 8.4(g). Professor Anthony Sebok will kindly provide commentary. You can read my forthcoming essay in the Georgetown Journal of Legal Ethics on this topic.
Later that evening, I will be speaking at the National Constitution Center in Philadelphia about the future of Obamacare. I will be joined by Abbe Gluck (Yale Law School) and Julie Rovner (Kaiser Health Network). I will be signing copies of Unraveled. You can register here.
On February 23, I participated in a live recording of the National Constitution Center’s “We the People” podcast, to discuss The Future of Federalism. The program was hosted by Jeff Rosen, and my interlocutor was Georgetown Law professor Peter Edelman.
During the hour-long program, we covered everything from sanctuary cities to marijuana legalization to environmental policy. This was a very thoughtful discussion, and articulated areas of agreement, as well as disagreement.
You can listen at the NCC, or on SoundCloud.
The lecture notes are here.
Brown v. Board of Education
This is Linda Brown, the third-grader who challenged the Topeka, KS law requiring her to enroll in a segregate school.
Here is Brown’s family.
(Linda Brown of Topeka (left), with her parents, Leola and Oliver, and younger sister Terry. ) Here are all of the plaintiffs from the various companion cases to Brown v. Board, and their parents.
Front row: Vicki Henderson, Donald Henderson, Linda Brown, James Emanuel, Nancy Todd, Katherine Carper Back row: Zelma Henderson, Oliver Brown, Sadie Emanuel, Lucinda Todd, Lena Carper. Here is an other photograph of all of the students.
This is Monroe Elementary School at issue in Brown v. Topeka Board of Education. Linda Brown, third grade, was forced to enroll in this all-black school. It was 21 blocks from where she lived.
Here are photographs from inside Monroe Elementary.
The white-Sumner Elementary School was much closer to where Linda lived.
The path to the Supreme Court’s decision in Brown was long and arduous, and quite complicated. Here is a memo from Chief Justice Warren, dated May 7, 1954, querying whether it would be appropriate to have the state Attorneys General provide argument on the case as well.
Here is the oral argument sheet from decision day.
Here is Chief Justice Warren’s draft of the final opinion.
Here is a memo Justice Felix Frankfurter wrote to Chief Justice Earl Warren on decision day. It reads:
This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the results. I congratulate you. Felix Frankfurter.”
This iconic photograph is of George E.C. Hayes, Thurgood Marshall, and James Nabrit congratulating each other afther the Court announced the decision in Brown, on may 17, 1954. 
Here is the entire NAACP Legal Defense Fund legal team:
Another iconic photograph of Linda Brown sitting on the Courthouse steps, with a newspaper blaring the headline,”High Court bans Segregation.”
This newspaper headline, however, belies the greatest limitation of Brown. Desegregation was only ordered with “All deliberate speed.”
Bolling v. Sharpe This is Spottswood Thomas Bolling, Jr., twelve years old. He was not allowed to attend a new junior high school in Washington, D.C. reserved for for whites.
Please take a moment to look at this slideshow of the Little Rock Nine.
The Little Rock 9:
Gov. Orval Faubus holding up newspaper: “Guns Force Integration.”
A very worthwhile trip if you ever make it to Little Rock.
During my recent trip to Little Rock, I visited the Little Rock Central High School. This is the locus of Cooper v. Aaron, and the school where the famous Little Rock 9 were escorted into the desegregated school by federal troops. What makes this national park site remarkable is that it is *still* an active high school.
Across the street from the school, they refurbished a gas station to appear as it did during the 1950s. It was at this gas station that the media filed their reports.
Gas was $.22 per gallon. Adjusted for inflation, that would be about $2.50 today.
As I approached the school, and climbed those famous steps, I was overcome by a very powerful feeling. Constitutional history was made right here. Looking across the street, I imagined the lynch mobs tormenting those poor students. As I came to the front door of the school, I peered inside, and imagined what those students felt when they entered. (I understand they were rushed to the Principal’s office so they were not intercepted). As chance would have it, classes were in session, so I could not enter the school.
The school is huge. It takes up an entire block, and has many sections.
Across the street from the High School was a visitor center that had some interesting exhibits.
Alas, this sign states an inaccuracy–We the People , as written in in 1787, “included only white male landowners.” I understand the point they were trying to make, but the Constitution itself was not so limited. In fact, it spoke in broad terms of people, and not men. It didn’t even use the word “slave,” but reverted to other euphemisms (other persons, etc.). At the time of the framing, in New Jersey at least, women had the right to vote. They may have even participated in the Constitutional ratification conventions. It would be more accurate for the Museum to have explained how the Constitution was interpreted. But it is not accurate–and somewhat misleading–to state it like this.
One of the cooler exhibits in the Visitor Center was a telegram President Eisenhower sent Governor Orval Faubus.
Here is a PDF of the original, courtesy of the National Archives:
When I became President, I took an oath to support and defend the Constitution of the United States. The only assurance I can give you is that the Federal Constitution will be upheld by me and by every legal means at my command.
Also at the Visitor Center were passes given to White Students, giving them permission to beat up the Black Students.
This was the original docket sheet for Cooper v. Aaron.
Palmer v. Thompson
Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.
In 1963, Alabama Governor George Wallace stood in the schoolhouse door at the University of Alabama. President Kennedy ordered the General of the Alabama National Guard to confront him.
Loving v. Virginia
Here are Mildred Delores Loving (nee Jeter) and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.
Here is a video of a documentary about their case.
Here is a trailer for a movie about Loving v. Virginia.