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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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ConLaw Class 11 – The Separation of Powers I – The Appointment and Removal Power

September 24th, 2018

The lecture notes are here.

Saturday Night Massacre

The headline of the New York Times on Sunday, October 21, 1973, the day after the Saturday Night Massacre.

This helpful graphic explains the sequence of events on Saturday, October 20, 1973.

 

Morrison v. Olson

This is Ted Olson, who at the time was the Assistant Attorney General for the Office of Legal Counsel. Olson would later serve as President George W. Bush’s Solicitor General.

This is Alexia Morrison, who served as the Independent Counsel to investigate whether Olson violated federal law.

 

NLRB v. Noel Canning

Gridlock and Executive Power from Josh Blackman

This is the video of the Senate’s pro forma session on January 4, 2012. It begins at 1:30, and lasts roughly 30 seconds.


 

ConLaw Class 10 – The Executive Power II

September 23rd, 2018

The lecture notes are here.

Dames & Moore v. Regan

This is Donald T. Regan, who was the secretary of the treasury in Dames & Moore v. Regan.

Regan

This is the logo for the Dames & Moore Group Company.

Dames-MooreJustice Rehnquist wrote Dames & Moore v. Regan in a short span of 8 days. There are several remarkable aspects of this opinion. First, Rehnquist cites as the definitive statement of executive power Justice Jackson’s concurring opinion Youngstown Sheet & Tube Co. v. Sawyer.

robert-jacksonOf course, Rehnquist clerked for Jackson that term. As Judge Bybee noted in this article:

Rehnquist’s first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court . . . . On May 16, 1952, the Court voted 6-3 in conference to reject Truman’s claim of authority to seize the steel mills.15 As Justice Jackson described the vote to his then-law clerks William Rehnquist and C. George Niebank, Jr., “Well boys, the President got licked.’

Yet, Youngstown was written by Jackson himself, with little involvement by his clerks. In fact Rehnquist and his co-clerks suggested resolving the case on non-separation of powers grounds.

To begin, Jackson’s law clerks had very little hand in drafting his opinions generally and little role in preparing the Youngstown concurrence specifically. 30 Thus, the Youngstown concurrence represented Jackson’s, not Rehnquist’s, work product. In fact, archival materials indicate law clerk Rehnquist suggested alternate non-separation of powers grounds on which Youngstown might have been resolved. In an apparently unsolicited memorandum to Justice Jackson, William Rehnquist and his co-clerk proposed they undertake additional research for Youngstown. Interestingly, all the issues proposed non-separation of powers grounds for resolving the appeal–e.g., by balancing equities on the preliminary injunction, etc.31 To be sure, the 1952 clerk memorandum, standing by itself, would be a thin reed to support a claim that Rehnquist had doubts about resolving the separation of powers question in Youngstown against the President. It might merely suggest Rehnquist favored the parsimonious adjudication of constitutional cases by resort to avoidance. The memorandum, however, does not stand by itself. In his book The Supreme Court, Rehnquist, without mentioning his prior memorandum, expressed doubts about how Youngstown was resolved. Noting that the separation of powers issue was not well settled, but in his view “more or less up for grabs,” he believed Youngstown might have been resolved on the balancing of equities and that the law on those issues favored the executive.32

When pressed to write Dames & Moore v. Regan in a short span of 8 days, Rehnquist elevated Jackson’s concurrence to the effect holding of the case (and modified it along the way). And guess who was clerking for Justice Rehnquist in 1981 when Dames & Moore was decided.

Roberts-Rehnquist

A young pup names John G. Roberts (first from the right), who would go on to replace his boss as the Chief Justice of the United States.

On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.

Judge Roberts cited the decision last year in an opinion accepting the Bush administration’s position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.

Hirabayashi v. United States

The lead plaintiff in a related case was Gordon Hirabayashi. In Hirabayashi, the Court upheld curfews directed towards Japanese Americans because the nation was at war with Japan.

hirabayashi

Korematsu v. United States

This is a young Fred Korematsu.

young-korematsu

This is Fred Korematsu later in life.

korematsu1

This is an announcement the United States Government posted, ordering “all persons of Japanese ancestry” to be rounded up.

letter

It says:

Pursuant to the provisions of Civilian Exclusion Order No. 33, this Headquarters, dated May 3, 1942, all per- sons of Japanese ancestry, both alien and non-alien, will be evacuated from the above area by 12 o’clock noon, P. W . T., Saturday, May 9, 1942.

No Japanese person living in the above area will be permitted to change residence after 12 o’clock noon, P.W.T., Sunday, May 3, 1942, without obtaining special permission from the representative of the Commanding General

The Civil Control Station is equipped to assist the Japanese Population affected by this evacuation in the following ways:

  1. Give advice and instructions on the evacuation.
  2. Provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of

property, such as real estate, business and professional equipment, household goods, boats, automobiles and livestock.

  1. Provide temporary residence elsewhere for all Japanese in family groups.
  2. Transport persons and a limited amount of clothing and equipment to their new residence.

 

Here is a piece of U.S. Government propaganda explaining the “relocation” and do the “job as a democracy should. With consideration.”

Fast-forward to 12:30 when the narrator says there are no constitutional problems with the internment.

Here is a map of the “relocation centers” and camps.

Map_of_World_War_II_Japanese_American_internment_campsThe San Francisco Examiner announces the “Ouster of all Japs in California near.”

JapaneseRelocationNewspapers1942

To give you a sense of the propaganda, here is a cartoon drawn by Dr. Seuss (Theodor Giesel):

‘This is a so-called “temporary camp” or “assembly center” that were set up in public places, like fairgrounds, before the Japanese-Americans could be transported to the “Detention centers” dubbed “Relocation Centers.”

temporary-camps

This is the Topaz Internment Center in Utah, where Fred Korematsu was sent.

topaz-internment-utah

Here are Americans locked up in internment camps.

korematsu-lockedup

Another photographed of interned Americans.

Japanese_American_Internment_Center

Here are Americans being rounded up on busses to the middle of the Utah desert.

camp-bus

Here is Eleanor Roosevelt at an internment camp.

768px-Eleanor_Roosevelt_at_Gila_River,_Arizona_at_Japanese,American_Internment_Center_-_NARA_-_197094

This great picture contains a meeting of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi, who also had companion cases before the Supreme Court.

korematsu-yorui-habayashi

And here is Fred Korematsu posing with Rosa Parks.

korematsu-rosa-parks

In 1990, Korematsu received a redress letter and a reparations check for his internment.

Korematsu-Fred Korematsu with redress & reparations letter and check 1990

President Clinton would Korematsu the Presidential Medal of Freedom in 1998.

Korematsu-Clinton

Korematsu passed away in 2005.

Gravestone_fred_korematsu

 

Ex Parte Endo

This is Mutsuye Endo.

mitsuye-endo

 

New in Cato Supreme Court Review: “The Travel Bans”

September 14th, 2018

On September 17, I will be presenting “The Travel Bans” at Cato’s annual Constitution Day celebration. This will be my third article published in the Cato Supreme Court Review. For the first two cases (McDonald v. Chicago) and Texas v. U.S.), I was disappointed the Court did not follow my advice. Alas, for the third case (Hawaii v. Trump), I’m remiss that the Court followed by advice.

Here is the abstract:

Historically, most landmark cases that present foundational constitutional questions trickle up to the Supreme Court over the course of several years. During that deliberative process, advocates on both sides could develop arguments and implement a carefully-crafted litigation strategy. Other landmark cases race to the Supreme Court following major crises. These latter cases arose out of true exigencies: the judiciary was forced to mobilize in response to an emergency that the other branches were unable to resolve.

Trump v. Hawaii fits into neither category: the legal issues were not difficult and the circumstances were not exigent. Without question, the president has the statutory and constitutional authority to deny entry to aliens from certain countries based on national-security concerns. Yet, the judiciary still moved at warp speed to halt President Donald Trump’s signature policies. Why? The “travel bans”—which denied entry to aliens from predominantly Muslim nations—traced their roots to overtly anti-Muslim statements made by then-candidate Trump. Furthermore, the government could only offer the faintest patina of a rational basis to defend the policies. Confronted with these facts, the lower courts uniformly enjoined the travel bans. Ultimately, only the Supreme Court upheld the final version in its entirety. This essay recounts the travel bans’ 18-month litigation blitz.

This contribution to the Cato Supreme Court Review provides an early assessment of Trump v. Hawaii. Part I discusses the first iteration of the travel ban, which President Trump signed one week after his inauguration. Part II dissects Travel Ban 2.0. Part III introduces Travel Ban 3.0, which was announced in September 2017. This policy—designed to be permanent—was promptly challenged in district courts. Once again, nationwide injunctions were affirmed by the courts of appeals. Yet, in December 2017, the Supreme Court permitted the entire policy to go into effect. This decision was a conclusive indication that the lower courts had gone astray. As a result, there should have been no surprises when, in June 2018, the Supreme Court upheld the third iteration in its entirety. Now that this saga has drawn to an anti-climactic close, Part IV places the travel ban in perspective.

New Article: “The Once and Future Privileges or Immunities Clause”

September 12th, 2018

In 2010, on the eve of oral arguments in McDonald, Ilya Shapiro and I urged the Supreme Court to apply the right to arms against the states through the Privileges or Immunities Clause. And, we explained, the Court could do so without setting out aimlessly into the undiscovered country of untethered and unbounded unenumerated rights—by adapting the principles of Washington v. Glucksberg (1997). By only considering rights that are “deeply rooted” in our nation’s traditions, the Privileges or Immunities Clause could be cabined within the appropriate scope of historical practice without the flood waters rushing in. Alas, the Court didn’t take our bait—though curiously neither the majority nor dissenting opinions grappled with the privileges-or-immunities dimension.

Nearly nine years later, Ilya and I have returned to this topic. We will be presenting our paper, The Once and Future Privileges or Immunities Clause, at the 14th Amendment at 150 Conference.

Part I charts the birth and premature demise of the Privilege or Immunities Clause following the Slaughter-House Cases. Part II explores how McDonald v. Chicago had the potential to revive the Clause, but failed—or only succeeded in a necessary but solo concurring vote. Part III surveys how the lower courts have considered the Clause in the wake of McDonald: the courts continue to provide some judicial protection for the “right to travel,” but all other rights—including the liberty of contract—continue to be disregarded. Part IV forecasts a possible future for the Privileges or Immunities Clause.

The conference will be hosted on September 21, 2018 by the Institute for Justice and the Liberty and Law Center at Antonin Scalia Law School. Our panel starts at 11:10:

11:10-12:20pm Perspectives on “Privileges or Immunities”

Discussing the Privileges or Immunities Clause’s origins, purposes, meaning, and contemporary legal disputes.

Moderator:

Hon. Judge Don R. Willett (Fifth Circuit)

Panelists:

Josh Blackman (South Texas College of Law Houston)

Robert J. Cottrol (George Washington University Law School)

Anthony Sanders (Institute for Justice)

Ilya Shapiro (Cato Institute)

Rebecca E. Zietlow (University of Toledo College of Law)

If you are in the area, I hope you can attend.

 

 

Prop2 Class 9 – Nuisance and Remedies

September 12th, 2018

The lecture notes are here.

We will use this resource about the Coase Theorem in class (courtesy of Professor Frank Buckley at George Mason Law). Alas, Ronald Coase passed away in September 2013 at the age of 102.

To illustrate the Coase Theorem, we will utilize the classic example of the Fountainbleau Hotel in Miami.

fountainbleau

fountain2

Or this related case from Dallas:

The Nasher contends that the developers of the $200 million tower, completed in January, have been intransigent in refusing to modify its reflective glass skin; the Nasher has proposed louvers for the facade.

Museum officials say the garden has had to be resodded twice because of the higher temperatures created by sunlight bouncing off the glass; that some trees have burned; and that light-blocking panels were needed for the roof during a recent Ken Price sculpture retrospective.

glare

And the owners have suggested building screens to block the sun!

Gizmodo has a great writeup of the case:

They also hired a group of designers to study the feasibility of installing a gigantic shading system to block the rays, rather than fixing the problem at the source.

This month, the architects behind the project—a New York firm called REX, which built the (fantastic) Wyly Theater near the Nasher—presented their final proposal, dubbed Surya.

It looks complex, but the concept is actually very simple: The team looked at the annual path of the “death ray” and, based on its coordinates, created a huge shading system to block it as it changes. To lessen the presence of the shade, they also devised a series of umbrella-like devices that only open up when needed. So, for most of the year, these devices look like thin tubes strung up on a massive metal frame—which is better than an opaque surface… I guess?

Coase!

REX-SURYA2-OK-P1

This is like something Mr. Burns would design.

The “umbrellas” open up during different times of the day so as not to obstruct the views.

20130130091742_08-Closing-Opening-Umbrella

And they follow the sun’s path through the year.

20131024064934_03_Sunrays

20130201121822_04a-Moving-Sunspots

Images courtesy of dukeminier-property.com, Wikipedia, and Professor Frank Buckley.

Here are the diagrams of the land from Del Webb.

In 1962:

1962

In 1965:

1965

Here are some articles about the Ashby High Rise.


View Larger Map

There was massive opposition to the site, which will be completed in Spring 2014 at Bissonnet and Ashby, north of Rice University.

stop-ashby

tower-traffic

not-nyc

ashby-hr-bissonnet