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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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The Statutory Legality of Trump’s Executive Order on Immigration: Part II

February 5th, 2017

Yesterday I sketched out the argument concerning the statutory legality of President Trump’s executive order on immigration. (I did not address the constitutional questions). I noted in my post that I was uncertain of a few items, and stopped short of reaching a firm conclusion. I still don’t know that I am certain, but thanks to several helpful comments I received, I can add some more clarity to this issue. In this part, I will discuss the distinctions between “entry” and “admission.”

“Entry”

8 U.S.C. § 1182(f) allows the President to deny “entry” to “classes of aliens” he deems “detrimental to the interests of the United States.”

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

The term “entry” was adopted in 1952. The Court explained how this term was understood in Landon v. Plasencia (1982):

In Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), we faced the question whether a resident alien’s return from an afternoon *29 trip across the border was an “entry” for immigration law purposes. The definition of that term was the same then as it is now: it means “any coming of an alien into the United States … except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him….” Section 101(a)(13), 8 U.S.C. s 1101(a) (13). We held in Fleuti that the “intent exception” refers to an intent to depart in a “manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” 374 U.S. at 462, 83 S.Ct., at 1812. Thus, an “innocent, casual, and brief excursion” by a resident alien outside this country’s borders would not subject him to the consequences of an “entry” on his return. Ibid. If, however, “the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” Ibid. That distinction both protects resident aliens from “unsuspected risks and unintended consequences of … a wholly innocent action,” ibid., and gives effect to the language of s 101(a)(13).6
6 Section 101(a)(13), 8 U.S.C. s 1101(a)(13), which defines “entry,” was enacted in 1952 in response to the harsh results visited upon resident aliens by earlier restrictive interpretations of the term. Both the House and Senate reports contained identical explanatory language:
“Normally an entry occurs when the alien crosses the borders of the United States and makes a physical entry, and the question of whether an entry has been made is susceptible of a precise determination. However, for the purposes of determining the effect of a subsequent entry upon the status of an alien who has previously entered the United States and resided therein, the preciseness of the term ”entry“ has not been found to be as apparent. Earlier judicial constructions of the term in the immigration laws, as set forth in Volpe v. Smith (289 U.S. 422 (53 S.Ct. 665, 77 L.Ed. 1298) (1933)), generally held that the term ”entry“ included any coming of an alien from a foreign country to the United States whether such coming be the first or a subsequent one. More recently, the courts have departed from the rigidity of that rule and have recognized that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States (Di Pasquale (sic) v. Karnuth, 158 F.2d 878 (C.C.A.2d 1947)), or did not leave the country voluntarily (Delgadillo v. Carmichael, 332 U.S. 388 (68 S.Ct. 10, 92 L.Ed. 17) (1947)). The bill defines the term ”entry“ as precisely as practicable, giving due recognition to the judicial precedents. Thus any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary.”
S.Rep. No. 1137, 82d Cong., 2d Sess., 4 (1952); H.R.Rep. No. 1365, 82d Cong., 2d Sess., 32 (1952), U.S. Code Cong. & Admin.News 1952, p. 1683.
In DiPasquale, the court refused to allow a deportation that depended upon an “entry” that occurred after an overnight train on which an alien was a passenger passed through Canada on its way from Buffalo to Detroit. In Delgadillo, the Court refused to define as an “entry” the return of an alien taken to Cuba to recuperate after the merchant ship on which he sailed was torpedoed in the Caribbean during World War II.
The Board of Immigration Appeals advanced a three part test to determine whether an alien has entered. This distinction is important, because an alien who has not entered is subject to a different removal process.

In relevant part, an “entry” for immigration purposes is defined as “any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntary or otherwise.” Section 101(a)(13) of the Act. Over time, caselaw has led to the formulation of a more precise definition of that term, requiring: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2)(a) inspection and admission by an immigration officer, or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. Matter of Patel, Interim Decision 3157 (BIA 1991), and cases cited therein; see also Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990).

Matter of G-, 20 I. & N. Dec. 764, 768 (BIA 1993)

Under this precedent, an alien that physically crossed the border, but was not subject to inspection, had not entered.

“Admission”

In the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), Congress dropped the word “entry,” and replaced it with the concept of “admission,” defined in 8 U.S.C. 1101(a)(13) as:

The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

Under this provision, the definition of “admission” includes the phrase “entry,” albeit a “lawful entry.”

Notwithstanding the 1996 IIRIRA, the BIA still retains the earlier definition of “entry.” Consider this passage from Matter of Martinez-Serrano, 25 I. & N. Dec. 151, 153–54 (BIA 2009):

Under our precedent decisions, “an ‘entry’ requires: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2) (a) an inspection and admission by an immigration officer, or (b) an actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint.” Matter of Z-, 20 I&N Dec. 707, 708 (BIA 1993) (emphasis added) (interpreting the term “entry” as it was defined under  former section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1988), i.e., prior to the amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546).

“Admission” and “entry” are similar, but not identical in usage. Even before IIRIRA,  the BIA found that separate from “entry,” “admission” refers to a communication between the alien and the inspecting officer:

“Admission” occurs when the inspecting officer communicates to the applicant that he has determined that the applicant is not inadmissible. Matter of V__Q__, 9 I & N Dec. 78 (BIA 1960). That communication has taken place when the inspector permits the applicant to pass through the port of entry.

Matter of Areguillin, 17 I. & N. Dec. 308, 311 (BIA 1980)

The relationship between the two terms is context specific. An alien can “enter” without being “admitted.” In Matter of Estrada-Betancourt, 12 I. & N. Dec. 191, 192 (BIA 1967), the BIA considered a case where aliens drove across the Mexican border to Brownsville, Texas. Because they did not stop at a check point, there was no inspection, or formal admission. The resolution of the case turned on whether they entered.

The controlling question in determining whether Petitioners were entitled to a deportation proceeding rather than an exclusion proceeding is the issue of whether they had in fact made an “entry” within the meaning of that word as it is used in the Immigration and Nationality Act. That is the test which must be applied in determining whether exclusion or deportation proceedings are proper in the case now before us. . .  .

We think the foregoing authorities clearly call for the conclusion that these aliens, who did not arrive in the United States at a “designated port of entry,” were required to proceed by the ordinary route to the nearest such port for their inspection. According to the list of such “ports” for these aliens who arrived in the United States by other than aircraft, Brownsville, Texas, was that “port” (section 1.51(c)(2)a1.) We hold that when they evaded inspection at that place their “entry” was effected and they were thereafter properly the subject of expulsion proceedings for having “entered without inspection.”

That is, the aliens entered, but were not admitted.

However, an alien can also be “admitted” without “entry.” (This concept is somewhat counterintuitive). Consider Matter of Patel, 20 I. & N. Dec. 368 (BIA 1991):

An applicant for admission to the United States, whose passport is stamped “Admitted” by an immigration inspector but who is prevented from entering the main terminal of an airport by a customs officer who suspects the passport to be fraudulent, is properly placed in exclusion proceedings because the applicant is not “free from official restraint,” as required by Matter of Pierre.

In this case, though the alien went through the inspection process, and was formally admitted, due to some last-minute concerns, there was no actual entry onto U.S. soil.

This latter definition is not helpful for understanding the President’s executive order on immigration. Trump’s order affects “entry,” not “admissibility.”

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.

If the ban is in place, the aliens never make it to inspection in the first place. In this sense, “entry” is broader than admission. That is, a person who does not enters can never be admitted in the first place.

Section 1182(f) is not a simple admissibility policy, but a far broader power to exclude those who are detrimental to American interests. This provision would not affect citizens, because it is limited to “aliens.” For Lawful Permanent Residents, a ban on entry would implicate the Due Process Clause because Congress has provided them with statutory rights. (In no small part, this explains the White House’s “clarification” that LPRs are not subject to the order). For refugees, and other types of aliens, however, no constitutionally protected interest is implicated.

As an aside, query whether the President has the inherent executive power to bar entry of aliens, even in the absence of this statute, as commander in chief. A related question was debated at length over the past few years: were Congress’s limitations on President Obama’s power to transfer detainees from Guantanamo to the United States a violation of his Article II powers?

Commentary and Media Hits – Week of 1/29/17

February 5th, 2017

Here is my commentary and media hits over the past week. The big stories were the immigration executive order, the firing of Sally Yates, and the nomination of Judge Neil Gorsuch.

Commentary

 

Media

Why the Focus on School Shootings?

October 9th, 2015

In The Shooting Cycle, Shelby Baird and I explore some explanations of why schools shootings–a tiny fraction of all gun deaths–attract so public attention. As this topic is in the news again, I repost the section we wrote about the role the “in-group”  heuristics play in driving public debate.

Another way to explain this duality in perception is through “in-group” bias. Under this heuristic, people tend to favor members of their own group over outsiders.85 Because “people tend to be more helpful, more willing to allocate resources, and more supportive of policies advocated by members of their own group,”86 it is not surprising that these relatable tragedies warrant more attention than the overwhelming majority of homicides—many of which are gang-, drug-, or street violence-related. Or, stated differently, people are more likely to fear tragedies that could happen to them (anyone can be in a school or a movie theater), but less likely to fear tragedies that they are less likely to experience. Many may have trouble fathoming being involved in drug- or gang-related violence.

Think about the locales of shootings that rise to the national level of consciousness: schools, college campuses, movie theaters, supermarkets, and elsewhere. These are places that can be related to, where people can picture themselves. Satirist Andy Borowitz spun some dark humor on the loci of mass shootings with his article headline in The New Yorker, “Study: Americans Safe from Gun Violence Except in Schools, Malls, Airports, Movie Theatres, Workplaces, Streets, Own Homes.”87

But in contrast, places that many people never visit, on the proverbial wrong side of town, do not warrant as much notice. For example, forty-six people were shot in Chicago during a seventy-two-hour period around the six-month anniversary of Sandy Hook.88 Yet these deaths garnered very little attention. Or, in the month preceding an October 2013 shooting at Los Angeles International Airport (“LAX”) that killed one TSA agent and wounded six, the Los Angeles Police Department reported eleven homicides in the area.89 As of December 21, in 2013, there were 246 murders committed in Los Angeles.90 While the incident at LAX garnered national attention that dominated the news cycle for an entire day—a Google News search at the time for “LAX Shooting” yielded 250,000+ results—we were not able to find any national headlines beyond the local media about these other deaths in the same geographic area, many involving the deaths of young children.

And, unfortunately, we suspect there is a racial angle here. ThinkProgress, a liberal blog, posted about a mass shooting in the gambling room in the back of a Detroit Barber shop, which occurred shortly after the shooting at LAX. This event garnered very little coverage in the media:

What makes this shooting different? Several things. First, it happened in Detroit, a city with a staggeringly high murder rate. Second, the reported gunman had a criminal history, and may have had a longstanding feud with some of the victims. And, third, it happened in a space where many people can’t imagine themselves: a gambling session in the back room of a barber shop. . . . Sadly, the relative media ignorance of the shooting tracks with a common theme: Gun crimes often occur in low-income neighborhoods with largely non-white victims, but, from the news, you’d think every shooting put the white and affluent at risk of violence. There’s an obvious reason from a producer’s perspective: They want traffic, or viewers, and think they can get more if more well-off news consumers are self-concerned with the story. But it doesn’t reflect the reality of gun violence in the United States, where black people are far more likely to be victims of gun homicides compared to their white counterparts. 91

This is akin to what some have called the “Missing White Woman Syndrome,”92 which shows that the media overwhelmingly covers missing white girls more than missing black girls.93

There are many unexplored reasons why certain shootings become salient. This analysis begins a discussion on this question.

SupremeCourt.gov Upgrade – Mouseover of Slip Opinions Reveals Summary of #SCOTUS Case

January 26th, 2015

The Supreme Court’s web site has a feature on its page listing slip opinions. If you hover your mouse over the name of the case, a box will pop up providing a one-sentence summary of the decision. I’ve never noticed this feature before, but all of the cases going back to 2009 seem to have this feature.

For example, this is what appears when you mouseover Holt v. Hobbs.

The Arkansas Department of Correction’s grooming policy, which generally prohibits inmates from growing beards, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) insofar as it prevents petitioner, a devout Muslim, from growing a ½-inch beard in accordance with his religious beliefs.

A slightly different statement appears in the syllabus:

The Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs.

While the syllabus, per United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337, is not part of the decision, I hope no one takes these short summaries to be part of the Court’s order.

In case you are curious, here is the HTML summary of NFIB v. Sebelius:

This suit challenging provisions of the Patient Protection and Affordable Care Act is not barred by the Anti-Injunction Act; the Affordable Care Act’s individual mandate—which requires persons who do not comply with the mandate to pay a “penalty” to the Federal Government—may be upheld as within Congress’s power under the Taxing Clause; the Medicaid Act’s severability clause applies to a Medicaid Act provision permitting the Secretary of Health and Human Services to withhold all federal Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program

Here is a screen shot.

scotus-title

This feature works on Windows, but not a Mac.

My Writings, Talks, and Media Hits in 2014

December 31st, 2014

Here is an overview of the articles, essays, Op-Eds, I wrote in 2014, as well as various talks and media hits I gave. You can find all of my accomplishments on my C.V.

Published Articles

Visit my SSRN page to view all of my works.

  1. Obamacare & Man at Yale, 2014 Illinois Law Review 1241 (2014).
  2. What Happens if Data is Speech?, 16 University of Pennsylvania Journal of Constitutional Law Heightened Scrutiny 25 (2014).
  3. The 1st Amendment, 2nd Amendment, and 3D Printing, 81 Tennessee Law Review 479 (2014).
  4. The Shooting Cycle, 46 Connecticut Law Review 1513 (2014) (with Shelby Baird).
  5. The Burden of Judging, 9 NYU Journal of Law & Liberty 1105 (2014).

Academic Presentations

  1. Collective Liberty, Loyola Chicago Constitutional Law Colloquium, November 7, 2014 (Video here).
  2. State Judicial Sovereignty, Junior Federal Courts Workshop, University of Georgia, Athens, GA, October 10, 2014.
  3. Substantive Federalism, Georgetown Center for the Constitution Workshop, Washington, D.C., May 15, 2014.
  4. Backdoor Zoning in the Unzoned City, Association for Law, Property, and Society, Vancouver, BC, May 3, 2014 (Video).
  5. “Certiorari and the Supreme Court Bar,” Southwestern Political Science Association, San Antonio, TX, April 18, 2014.
  6. The 1st Amendment, 2nd Amendment, and 3D Printing, Tennessee Law Review Symposium on the 2nd Amendment, March 1, 2014. (Vide0).
  7. “What happens if data is speech,” Federalist Society Faculty Conference, New York, NY, January 4, 2014 (Video).

Other Presentations

  1. “Gridlock and Executive Power,” University of Chicago Law School Federalist Society Chapter, November 6, 2014 (audio here).
  2. “Hobby Lobby, Obamacare, and Religious Liberty,” University of Houston Federalist Society Chapter, November 4, 2014.
  3. Indianapolis Lawyers Federalist Society Chapter, October 31, 2014 (video here).
  4. Indiana University, Indianapolis, Federalist Society Chapter, October 30, 2014 (video here).
  5. “Hobby Lobby, Obamacare, and Religious Liberty,”  Indiana University, Bloomington Federalist Society Chapter, October 30, 2014 (video here).
  6. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” Memphis Federalist Society Chapter (video here).
  7. “1st Amendment, 2nd Amendment, and 3D-Printed Guns,” University of Little Rock, Arkansas, Federalist Society Chapter, October 28, 2014 (video here).
  8. “Gridlock and Executive Power,” Sacramento Federalist Society Chapter, October 24, 2014 (audio here).
  9. “Gridlock and Executive Power,” U.C. Davis Federalist Society Chapter, October 23, 2014 (video here).
  10. Forbes 30 Under 30 Summit, Philadelphia, PA, October 21, 2014 (audio here).
  11. “Gridlock and Executive Power,” Philadelphia Federalist Society Lawyers Chapter, October 20, 2014 (audio here).
  12. “Gridlock and Executive Power,” University of Georgia School of Law Federalist Society Chapter, October 9, 2014.
  13. “Gridlock and Executive Power,” with Professor Eric Segall, Georgia State University College of Law Federalist Society Chapter, October 9, 2014.
  14. “Gridlock and Executive Power,” Baylor University College of Law Federalist Society Chapter, September 30, 2014.
  15. “Supreme Court Roundup,” Rice University Federalist Society Chapter, September 29, 2014.
  16. “Hobby Lobby, Obamacare, and Religious Liberty,” Ohio State University College of Law Federalist Society Chapter, September 23, 2014.
  17. “Hobby Lobby, Obamacare, and Religious Liberty,” University of Maryland School of Law Federalist Society Chapter, September 18, 2014.
  18. “The Separation of Powers Heading into—and After—the Midterms.,” with Prof. Steve Vladeck,  American University Washington College of Law Federalist Society Chapter, September 17, 2014.
  19. Constitution Day, South Texas College of Law, September 15, 2014.
  20. “Hobby Lobby, Obamacare, and Religious Liberty,” Grand Rapids Federalist Society Chapter, September 11, 2014.
  21. “Hobby Lobby, Obamacare, and Religious Liberty,” Michigan State University College of Law Federalist Society, September 11, 2014.
  22. “Predicting the Behavior of the Supreme Court,” Texas Bar Advanced Civil Appellate Practice Course, Austin, Texas, September 4, 2014.
  23. “Unprecedented: The Constitutional Challenge to Obamacare,” Stanford Law School Federalist Society Chapter, May 8, 2014.
  24. “Unprecedented: The Constitutional Challenge to Obamacare,” Orange County Lawyers Federalist Society Chapter, May 7, 2014.
  25. “Unprecedented: The Constitutional Challenge to Obamacare,” Los Angeles Lawyers Federalist Society Chapter, May 6, 2014.
  26. “Unprecedented: The Constitutional Challenge to Obamacare,” Fordham Law School Federalist Society Chapter, April 10, 2014.
  27. “Unprecedented: The Constitutional Challenge to Obamacare,” IU Bloomington School of Law Federalist Society Chapter, March 28, 2014.
  28. “Unprecedented: The Constitutional Challenge to Obamacare,” Indianapolis Lawyers Federalist Society Chapter, March 27, 2014.
  29. “Unprecedented: The Constitutional Challenge to Obamacare,” Santa Clara Law School Federalist Society Chapter, March 20, 2014.
  30. “Unprecedented: The Constitutional Challenge to Obamacare,” San Francisco Lawyers Federalist Society Chapter, March 19, 2014.
  31. “Unprecedented: The Constitutional Challenge to Obamacare,” Tallahassee Lawyers Federalist Society Chapter, March 6, 2014.
  32. “Unprecedented: The Constitutional Challenge to Obamacare,” Florida State University School of Law Federalist Society Chapter, March 6, 2014 (Video here).
  33. “Unprecedented: The Constitutional Challenge to Obamacare,” Detroit Mercy College of Law Federalist Society Chapter, February 13, 2014.
  34. “Unprecedented: The Constitutional Challenge to Obamacare,” University of Michigan School of Law Federalist Society Chapter, February 13, 2014.
  35. “Unprecedented: The Constitutional Challenge to Obamacare,” New York Law School Federalist Society Chapter, February 6, 2014 (video available here).
  36. “Unprecedented: The Constitutional Challenge to Obamacare,” New York City Federalist Society Young Lawyer’s Chapter, February 4, 2014 (photo here).
  37. “Unprecedented: The Constitutional Challenge to Obamacare,” University of Minnesota School of Law Federalist Society Chapter, January 31, 2014 (Video here).
  38. “Unprecedented: The Constitutional Challenge to Obamacare,” William Mitchell School of Law Federalist Society Chapter, January 30, 2014 (Video here).
  39. “Unprecedented: The Constitutional Challenge to Obamacare,” University of Arizona School of Law Federalist Society Chapter, January 23, 2014 (Video here).
  40. “Unprecedented: The Constitutional Challenge to Obamacare,” Arizona State University School of Law Federalist Society Chapter, January 23, 2014 (Video here).
  41. “Unprecedented: The Constitutional Challenge to Obamacare,” Houston Lawyers Federalist Society Chapter, January 10, 2014 (Video here).
  42. “Unprecedented: The Constitutional Challenge to Obamacare,” Philadelphia Lawyers Federalist Society Chapter, January 6, 2014 (Video here).

Commentary

  1. “Obama’s Unconstitutional Corner,” National Review, December 22, 2014 (Excerpts, PDF).
  2. “Obama’s overreach? Look in the mirror, Congress,” Los Angeles Times, November 22, 2014.
  3. ‘Discretion’ on Immigration Enforcement Can Become Abuse of Power, New York Times, November 18, 2014.
  4. The Gridlock Clause, National Review, November 12, 2014 (Updated edition).
  5. The Gridlock Clause, National Review, September 8, 2014.
  6. Obamacare was Designed to Punish Uncooperative States, The American Spectator, July 29, 2014.
  7. Democrats are Trying To Rewrite The First Amendment, The American Spectator, June 25, 2014.
  8. Our Gun-Shy Justices – The Supreme Court abandons the Second Amendment, The American Spectator, July/August 2014 issue (PDF).
  9. Is there really an epidemic of mass shootings, The American Spectator, June 9, 2014.
  10. Technology, Big Data and Tomorrow’s Lawyers, Texas Lawyer, May 19, 2014. (PDF).
  11. Sotomayor and Toobin Push Bigotry By Association, The American Spectator, May 1, 2014.
  12. Justice Scalia Publicly Chastised A Lawyer For Reading From His Notes, Business Insider, January 15, 2014.

Media

  1. Quoted in Wall Street Journal Law Blog Post, “Second Circuit: NYC’s ‘Forgotten Borough’ is an Island of ‘Isolation,’” December 26, 2014.
  2. Discussed in Wired Magazine article on legal technology, Hack This Trial: Technology Is (Finally) Aiding Legal Strategy, December 11, 2014.
  3. Quoted in Hartford Courant on gun rights, Study Finds Public Support For Gun Rights Has Increased Since Newtown, December 11, 2014 (excerpts here).
  4. Guest on America in the Morning and Jim Bohannon Show, to discuss FantasySCOTUS, December 12, 2014.
  5. Guest on “Stand Up! With Pete Dominick” on SiriusXM Satellite Radio, to discuss executive power, December 11, 2014.
  6. Quoted by Houston Chronicle in article on free speech rights of teachers, “Teacher accused of anti-Muslim comments resigns, will get 3 months pay,” December 4, 2014. (excerpts here).
  7. Quoted by Rep. Lamar S. Smith (R. TX) during hearing on constitutionality of President Obama’s executive action on immigration (Video]).
  8. Profiled in ABA Journal, “Beat the Computer: Law profs develop an analytical tool to help better understand court decisions,” December 2014 ABA Journal.
  9. Quoted in “King Obama, Constitution-Shredder?” U.S. News & World Report, November 21, 2014.
  10. Quoted in “What could a Republican president do with Obama’s executive power theories?,” Vox, November 21, 2014.
  11. Quoted in Here come the lawsuits! Courts likely destination for Obama immigration plan, The Washington Times, November 21, 2014.
  12. Interviewed on BiTelevision (Bulgarian Television) on the immigration executive action, November 20, 2014.
  13. Guest on PBS News Hour with Gwen Ifill to discuss constitutionality of President’s executive action on immigration, November 19, 2014 (excerpts here).
  14. Guest on 710 KURV Talk Radio, McAllen, TX to to discuss constitutionality of President’s executive action on immigration, November 19, 2014.
  15. Featured in ABA Journal, “‘Some random guy in Queens’ is three-time FantasySCOTUS winner,” ABA Journal, November 18, 2014.
  16. Profiled on FiveThirtyEight feature on FantasySCOTUS, “Why The Best Supreme Court Predictor In The World Is Some Random Guy In Queens,” November 17,2014 (excerpts here).
  17. Quoted in Bloomberg BNA Law Week, “Mich., Ky. Same-Sex Marriage Bans Upheld; 6th Circuit Decision May Ring in High Court,” November 11, 2014 (excerpts here).
  18. Quoted in Wall Street Journal, “Obamacare Opportunity,” November 11, 2014.
  19. Profiled in Washington Post front page story about FantasySCOTUS, The Supreme Court’s devotees go DIY, October 25, 2014 (PDF).
  20. Interviewed by ABC 13 for Houston Pastor Subpoena Case, October 15, 2014.
  21. Quoted in USA Today for article on same-sex marriage cases, October 14, 2014.
  22. Interviewed by Texas Tribune for article on Texas Voter ID case, October 10, 2014.
  23. Interviewed by KTSA Newsradio San Antonio for segment on Texas Voter ID case, October 10, 2014.
  24. Interviewed by U.S. News & World Report for feature on FantasySCOTUS, Forget Fantasy Football, Try Fantasy SCOTUS, October 6, 2014.
  25. Interviewed on 88.7 KUHF Houston Public Radio for segment on Supreme Court same-sex marriage decision, October 6, 2014.
  26. Quoted in “Justice Ginsburg Comments on Abortion Law Stir Recusal Debate,” Wall Street Journal Law Blog, October 1, 2014.
  27. Quoted in “Conservatives condemn Ruth Bader Ginsburg’s abortion comments,” MSNBC, October 1, 2014.
  28. Quoted in Ginsburg Faulted in Comments on Texas Abortion Law, National Law Journal, September 30, 2014.
  29. Interviewed by Bloomberg News, “Obamacare’s Latest Threat Nears Turning Point in Court,” August 28, 2014.
  30. Quoted in Slate, Gridlock is Good, August 8, 2014.
  31. Guest on Houston Matters on on 88.7 KUHF Houston Public Radio for segment on Supreme Court prediction algorithm, August 5, 2014.
  32. Quoted in National Review article on President’s executive power, The Domestic Caesarism Question, August 4, 2014.
  33. Quoted in August 2014 ABA Journal article on Supreme Court modifying opinions, Supreme Court justices regularly seek to change the errors of their ways, ABA Journal, August 1, 2014.
  34. Interviewed by Vox for feature on Supreme Court prediction, This computer program can predict 7 out of 10 Supreme Court decisions, Vox, August 4, 2014.
  35. Quoted by BuzzFeed, Mystery Campaign Publishes Names, Addresses Of Opponents Of LGBT-Discrimination Ban, July 30, 2014.
  36. Quoted in Ars Technica article,  Algorithm predicts US Supreme Court decisions 70% of time, July 30, 2014.
  37. Quoted in Insider Higher Education article, Bar Exam Technology Disaster, July 30, 2014.
  38. Profiled in ABA Journal Article on Supreme Court prediction algorithm, Law prof claims computer model predicts SCOTUS decisions with 70% accuracy, July 29, 2014.
  39. Guest on Rod Arquette Show on Talk Radio 570 Am Salt Lake City to discuss Obamacare tax credit case, July 29, 2014.
  40. Interviewed by Bloomberg BNA for article about timing of Halbig v. Burwell appeal to the Supreme Court, Another Trip to Supreme Court Likely for ACA But En Banc D.C. Circuit May Divert En Route, August 5, 2014 (PDF).
  41. Recorded Federalist Society SCOTUSCast on Lane v. Franks, July 17, 2014.
  42. Interviewed by Houston Chronicle for article about Abigail Fisher affirmative action decision, July 15, 2014.
  43. Quoted in Newsweek article on Hobby Lobby decision, July 9, 2014.
  44. Guest on “To The Point” on syndicated public radio program to discuss planned executive power lawsuit, July 2, 2014 (audio here).
  45. Cited by New York Times editorial board in article on press credentials for SCOTUSBlog, July 2, 2014.
  46. Guest on Houston Public Television Program, “Red, White, and Blue” to talk about the Supreme Court term, July 11, 2014.
  47. Guest on “To the Point” Public Radio International, talking about lawsuit against President Obama’s Executive Actions, July 2, 2014.
  48. Panelist on Tax Foundation Conference Call on Harris v. Quinn, June 30, 2014.
  49. Interviewed on ABC TV affiliate KTRK Houston for feature on Supreme Court Hobby Lobby Decision on 6:00 news, June 30, 2014.
  50. Interviewed on 88.7 KUHF Houston Public Radio for segment on the Supreme Court’s Hobby Lobby decision, June 30, 2014 (audio and transcript).
  51. Guest on Houston Matters on on 88.7 KUHF Houston Public Radio for segment on the Supreme Court’s term, June 27, 2014 (audio here).
  52. Interviewed for live segment on KTRH Houston Talk radio about Supreme Court decisions, June 27, 2014.
  53. Interviewed for news piece on KTRH Houston Talk radio about Supreme Court’s decision on abortion buffer zones, June 26, 2014.
  54. Interviewed by CQ Roll Call about Supreme Court’s decision in Riley v. United States, and implications for NSA surveillance, June 25, 2014.
  55. Interviewed by La Voz, Houston language newspaper, about proposal to give immigrants certain state citizenship rights in New York, June 23, 2014.
  56. Interviewed by Robert Barnes, Washington Post Supreme Court Reporter, for article on Supreme Court’s refusal to accept any Second Amendment cases, Justice Anthony M. Kennedy may be the middleman in the gun-rights debate, The Washington Post, June 22, 2014.
  57. Interviewed on Cam & Company on NRA News, about The Shooting Cycle, June 9, 2014.
  58. Interviewed for article in Library Journal about publisher requiring return of textbooks at the end of semester, Law Profs Revolt after Aspen Casebook Tries to Get Around First Sale Doctrine, May 21, 2014 (excerpts here).
  59. Interviewed for article in Chronicle of Higher Education about publisher requiring return of textbooks at the end of semester, Law Professors Defend Students’ Right to Sell Used Textbooks, May 9, 2013.
  60. Quoted in article in ABA Journal article about publisher requiring return of textbooks at the end of semester, Legal publisher says it will require return of hard-copy property casebooks at the end of class, May 8, 2014.
  61. Recorded Federalist Society SCOTUSCast on oral arguments in Lane v. Franks, May 2, 2014.
  62. Interviewed by Boston Globe for article on Justice Stevens’s testimony before the Senate, John Paul Stevens reaffirms dissent on campaign finance, May 1, 2014 (excerpts here).
  63. Interviewed by Houston Business Journal for article on Ashby High Rise, Ruling most likely won’t be the end of the Ashby high-rise case, April 29, 2014 (excerpts here).
  64. Guest on Houston Matters on on 88.7 KUHF Houston Public Radio for segment on the Ashby High Rise, April 29, 2014 (excerpt here and audio here).
  65. Cited in article in The New Republic, Liberals Should Be Happy About the Supreme Court’s Affirmative Action Decision, April 22, 2014 (excerpts here).
  66. Quoted in article in Houston Chronicle on Ashby High-Rise, Stakes high as final arguments await Ashby high-rise case, April 20, 2014 (excerpts here).
  67. Quoted in article in the Cincinanti Enquirer in article about Susan B. Anthony case, SCOTUS hears local free speech case Tuesday, April 20, 2014 (Excerpts here).
  68. Quoted in article in the house Chronicle about Google Gag Order, Google fights gag order, April 20, 2014 (Excerpts here).
  69. Interviewed for feature in Tablet Magazine, The Volokh Conspiracy Is Out To Get You—And Everyone in America, about the influence of the Volokh Conspiracy, April 3, 2014.
  70. Interviewed for news piece on 88.7 KUHF Houston Public Radio on Supreme Court’s ruling in McCutcheon v. FEC campaign finance case, April 3, 2014 (Audio available here).
  71. Quoted in article on CNN Money about robot lawyers, titled “Here Come the Robot Lawyers,” March 28, 2014.
  72. Interviewed on KTSA Newsradio San Antonio by Host Don Morgan for segment on Hobby Lobby v. Sebelius, March 24, 2014.
  73. Interviewed on WOAI Newsradio San Antonio by Anchor Michael Board for segment on Hobby Lobby v. Sebelius, March 24, 2014 (article here).
  74. Guest on Houston Matters on on 88.7 KUHF Houston Public Radio for segment on what the 28th Amendment to the Constitution should be, March 13, 2014 (Listen here and Video here).
  75. Quoted in National Law Journal Article, titled “Supreme Court Acknowledges Protest Audiotape was Redacted,” March 3, 2014 (Excerpt here).
  76. Guest on Houston Matters on on 88.7 KUHF Houston Public Radio for segment on Texas Same-Sex Marriage Case, February 27, 2014 (Listen here).
  77. Interviewed for front-page article in Houston Chronicle on court finding Texas ban on same-sex marriage unconstitutional, February 27, 2014.
  78. Interviewed for news piece on 88.7 KUHF Houston Public Radio on Supreme Court’s ruling on Chadbourne & Parke LLP v. Troice case on Stanford Ponzi Scheme Class Action, February 26, 2014 (Listen here).
  79. Appeared as Panelist on “Red, White, and Blue” on Houston PBS Channel 8 episode on the Supreme Court, March 1, 2014 (Video here).
  80. Interviewed for featured article by Associated Press, republished in hundreds of newspapers, about FantasySCOTUS, For High Court, A League of Their Own, Associated Press, February 15, 2014. (Republished in Washington Post, ABC News, Newsday, the Sacramento Bee, the Salt Lake Tribune, Huffington Post, Yahoo News, Seattle Times, Detroit Free Press, Denver Post, and many others.
  81. Quoted in ABC News piece on Virginia Same-Sex Marriage Decision, Oops! Va. Judge Confuses Constitution, Declaration of Independence in Gay Marriage Ruling, ABC News, February 14, 2014.
  82. Quoted in WSJ Law Blog piece on Virginia Same-Sex Marriage Decision, Virginia Gay Marriage Ruling: A Question and An Error, Wall Street Journal Law Blog, February 14, 2014.
  83. Quoted in Reason Blog post on The Shooting Cycle, “Why Mass Shootings Haven’t Ushered In a New Age of Gun Control,” February 12, 2014.
  84. Featured in Houston Business Journal, Meet a 30 under 30, January 2014.
  85. Interviewed on Chanel 39 9:00 News about FantasySCOTUS, January 22, 2014.
  86. Profiled in Houston Chronicle article, Online game has law nerds lining up for bragging rights, January 21, 2014 (PDF).
  87. Interviewed on Michael Berry Show, KTRH Houston Talk radio, about Unprecedented, January 17, 2014.
  88. Featured in Houston Business Journal, Houston young professionals named among Forbes 30 Under 30, January 16, 2014.
  89. Featured by Houston Culture Map, Houston young professionals get national magazine love: A 30 Under 30 with a Bayou City bent, January 16, 2014.
  90. Interviewed by Utrice Leid on “Leid Stories” on Progressive Radio Networks, January 16, 2014.
  91. Interviewed by Philadelphia Inquirer for article on Unprecedented, Law Review: Detailing his analysis of the fight over Obamacare, Philadelphia Inquirer, January 10, 2014.
  92. Interviewed by Main Street about the implementation of the Affordable Care Act, Does Obamacare Violate the Constitution?, January 9, 2014.
  93. Interviewed by Wall Street Journal Law Blog for post about The Shooting Cycle and mass shootings, Why Gun-Controllers Lose Ground After Mass Shootings, January 8, 2014.
  94. Interviewed by Texas Lawyer about selection as Forbes 30 under 30, Josh Blackman (of fantasySCOTUS.net fame) is one of Forbes’ 2014 30 under 30 in law & policy, January 7, 2014.
  95. Selected by Forbes Magazine for Forbes 30 under 30 in Law and Policy, Forbes Magazine, January 6, 2014.

 

Litigation

To 2015!