Friday, June 23, 2017

A Response to Justice Alito's Hypotheticals in Maslenjak

Yesterday the Supreme Court decided what it means to "knowingly procure, contrary to law, the naturalization of any person"—a federal crime for which the penalty, if the person whose naturalization the defendant procured contrary to law is himself, is revocation of citizenship.  The parties litigated two ways of reading this language.  The first is merely that the acts by which one procured naturalization must be contrary to law, regardless of whether the illegality itself was a but-for cause of, or a contributing factor to, procuring naturalization.  That is to say, if one has to do a series of things to procure naturalization, including filling out an application with several hundred statements, one has procured naturalization in a manner contrary to law so long as any one of those acts was, in some respect, illegal, e.g., if one of the applications was false.  This was the government's theory.  The second way, the defendant's way, to read the language is that the naturalization must be procured by a means contrary to law, i.e., that some illegal act must at least materially contribute to obtaining naturalization.

Eight Justices joined Justice Kagan's opinion to the extent it held that the correct reading of the language is causal.  Justice Kagan claims that this follows from "the way language naturally works"; we wouldn't say, she reasons, that someone obtained a painting illegally unless he did something illegal that caused him to obtain the painting.  She tries to illustrate this with a couple hypotheticals that I don't think work. For example, she says we wouldn't say that someone illegally obtained a painting if he drove illegally on the way to the auction house.  That may only show that traveling to the place where one obtains a painting has nothing to do with obtaining the painting causally or otherwise, just as you wouldn't say that "I bought clothes quickly" because you drove quickly to the store.  However, I think she's right; to take a perhaps better hypothetical, if you pay for something expensive in cash and knowingly pass the cashier a Canadian penny, plus an amount well in excess of the item's price, to make the change even out, we probably wouldn't say that you bought the item illegally (though I'm not quite sure of this), though we definitely would say it if you paid the whole purchase price in rolls of Canadian pennies.

Before turning to how Justice Alito attempts to rebut this reading of "knowingly procure, contrary to law," I want to say a little about what sort of claim Kagan is making when she says that "language naturally works" so as to connote (or denote) that an illegal act caused the procurement when we say that someone procured something contrary to law.  (It isn't at all clear from the opinion.)  In the first place, it seems to have nothing to do with the meaning of words and phrases like "contrary to law" or "illegally" generally.  When we say that someone "drove illegally," we do not mean that some illegal act was a cause of the driving.  If we say that someone shot a deer contrary to law, we probably simply mean that their shooting the deer was illegal, not that they used an illegal gun that caused the deer's death.  On the other hand, it also seems to have little to do with the meaning of words like "procure" or "obtain" generally.  If we say that someone "barely procured naturalization" or "slowly procured naturalization," we obviously don't mean that the slowness of the procurement, or its being barely procured, was the procurement's cause; quite the opposite, in fact.  So why is it that Kagan's gloss of "procure, contrary to law" or "illegally obtain" seems so intuitively correct?  Is "illegally obtain/procure" just idiomatic for obtaining/procuring because of some illegality, even though "illegally" doesn't necessarily modify verbs in a causal way, and procure and obtain aren't always modified causally either?

Idiom might explain it, but that seems an easy way out.  What I want to tentatively suggest is that when an adverb modifies "obtain" or "procure," it must at least materially qualify the whole of the obtaining or procurement.  We wouldn't say, for example, that someone obtained something adroitly if what they did was only adroit in one small respect.  More broadly, when any adverb modifies any verb, it probably has to at least materially describe that verb.  For example, we wouldn't say that someone "drove from New York to California illegally" because he briefly sped in Montana, or that he drove from New York to California at a slow speed because he drove at a slow speed for an hour in Indiana.  So to say that someone procured naturalization contrary to law, it seems insufficient that one immaterial statement in the process of procuring naturalization was false and illegal; the procurement must be materially illegal in order to sensibly talk about an illegal procurement.  

Now, here is where I think obtaining or procuring might differ from other verbs.  If you agree that to say that someone drove from New York to California illegally the drive must have been materially illegal, all we are saying is that some substantial percentage of the drive, in terms of duration, must have violated some law.  But when we talk about materiality in the context of obtaining something, I am inclined to think we mean material to obtaining that thing, not just that some substantial number of the acts one took towards obtaining it were illegal.  (Of course, some adverbs just don't have this kind of material relationship to obtain or procure; see note.**)  So if every page of an application for naturalization contained some question that was immaterial to the result, misstatements as to each such irrelevant question, though they may make up a substantial portion of the application, don't seem to amount to an illegal procurement of naturalization.  For misstatements to be material to procurement, and thereby amount to a procurement contrary to law, I believe they have to materially contribute to causing the procurement.

Interestingly, this is just where Justice Alito disagrees with Justice Kagan.  He agrees with me, or rather I agree with him, that in order to procure naturalization contrary to law, you have to do something illegal that's material to procuring naturalization.  But unlike me, he thinks that that materiality need not be causal; the illegal act, he says, need only have a natural tendency to influence whether one obtains naturalization, regardless of whether it does.  He attempts to demonstrate this through two hypotheticals.  As Justice Kagan offers no response to them, I offer mine.

First, he supposes that eight co-workers buy two season tickets for their favorite football team.  They then agree to each write their names on one slip of paper and put the slip in a hat, from which a slip is then drawn to see who gets the two tickets (for themselves and a guest) for a given game.  One of the eight puts his name in twice, and wins the drawing.  Alito concludes that "he 'procured' the tickets 'contrary to' the rules of the drawing even though he might have won if he had put his name in only once."

This hypothetical, it strikes me, hardly proves that "procures contrary to law" doesn't connote or denote causality, because the relationship between the second slip and winning the drawing is causal, at least in the sense the law understands causality.  Suppose, for instance, Person A knows Person B is considering committing suicide and has put one poisoned chocolate truffle into a box of eight chocolate truffles with the intention of randomly selecting one from the box and eating it.  If Person A secretly puts a second poisoned truffle in the box in hopes of increasing the chance that Person B will kill himself, and Person B does take one of the two poisoned truffles and die—assume the police can't tell whether it was Person A's truffle or notI'm pretty sure that Person A will be found liable, at least in tort, for causally contributing to Person B's death (unless Person B's act is deemed an intervening cause, which is irrelevant to the point I'm making), even though Person B might have died from eating the original poisoned truffle.  If there's a 50% chance that an illegal act caused some outcome, and we can't tell whether or not it did, we call that act the outcome's legal cause.

On the other hand, suppose that one member of the group fills out the slips of paper for everyone.  The cheater in this modified version of Alito's hypothetical writes his own name on a second slip of paper, which he puts in the hat.  If the original slip in the hat with his name on it is drawn, which can be ascertained simply by comparing the handwriting on that piece to the handwriting on all the others, and he thereby wins the drawing, would we say that he procured the tickets contrary to the rules of the drawing?  I think not, even though what he did had a natural tendency to affect the drawing's outcome.  We certainly would say that his participation in the drawing was contrary to its rules, but not that he procured the tickets contrary to the drawing's rules, or "illegally," which shows, I think, that when it comes to procurement materiality is causal.

Alito's second hypothetical is rather stronger.  He supposes that an Olympic runner wins a race while using a performance-enhancing drug; she's found out and is disqualified.  Because the second-place time was slow, it's speculated that she would have won without the drug.  Nevertheless, Alito says, "it would be entirely consistent with standard English usage for the race officials to say that she 'procured' her first-place finish 'contrary to' the governing rules."

I think this example simply trades on a particular feature of what's deemed material in Olympic running.  In running, as I understand it, any cheating, whether material to the outcome of any particular contest or not, often results in disqualification.  Had the runner in Alito's hypothetical worn a banned running shoe, her results would have been disqualified as well, even if the shoes made very little difference and the second-place finisher wasn't close.  Here, when we say that someone procured a first-place finish contrary to rules, all we mean is that they violated a rule during the race.  To violate a rule is to be ipso facto ineligible; therefore, any procurement of a first-place finish in a race where one violated a rule is contrary to the rules.

Suppose a sport, though, that doesn't view every infraction as quite so material.  For example, it is discovered two games into the NBA Finals that a minor role player is using a performance-enhancing drug, his team down 0-2; he is then suspended from the series, but his team is not disqualified from playing on, and that team wins the next four games and the series.  Would we say that the team procured its championship contrary to the rules of basketball?  Pretty obviously not.  What if the team won its first two games before the player got suspended, then won only two of the five thereafter en route to winning the Finals in seven games?  The answer is probably still no, especially absent reason to think the drug made the player materially better and the player made the team materially better.  Or, what if several players on the team wear an illegal basketball shoe, or get away with wearing illegal elbow guards, and are fined a nominal sum for it?  Now we really won't say they procured their championship illegally, though we would have in the case of the runner with the illegal shoes.  

On the other hand, what if the San Francisco Giants had won the 2002 World Series in seven games, a series in which the then-possibly-steroid-using Barry Bonds hit .471 with a .700 on-base percentage, a 1.294 slugging percentage, and 4 home runs in 17 at-bats?  We likely would say that the Giants procured the championship contrary to the rules of baseball, given that Bonds' contributions were necessary to the outcome, and given the huge statistical gap between Bonds in his pre-steroid years and Bonds in his allegedly steroid-using years, such that his steroid use likely made a material causal contribution to the outcome.  So again I conclude that absent an unusual context-specific theory of materiality, to procure something illegally means that illegality materially contributed to the procurement, and that to say that illegality materially contributed to the procurement is just to say that it materially causally contributed to the procurement.

** Of course, this won't be the case of every adverb that modifies obtain or procure.  To obtain quickly just means that the whole process was quick, but even here note that quickly must modify the whole process or not at all—there is no carving up the process into parts and saying that someone obtained something quickly because a material part of the process was quick.  On the other hand, more durational verbs, the sorts of verbs, like drive, where it makes sense to say "he (verb) for two hours" (which isn't the case of obtain or procure), can be sensibly modified where one is really only describing a material part of the relevant duration.  The contrast is a subtle one, but to be precise, to say that someone obtained something quickly just means that the whole length of time it took them to obtain it is a relatively short span of time in which to obtain it; to say that someone drove from Point A to Point B slowly or quickly may not necessarily describe the whole length of the drive so much as the speed at which they were driving most of the time.

Tuesday, June 13, 2017

A Thought on the Relevance of Congressional Authorization and Related Enactments to the Establishment-Clause Question in the Travel-Ban Case

Over at Take Care, Leah Litman and Ian Samuel have a post faulting Texas for arguing, in its amicus brief in support of the government's cert petition in the travel-ban case, that because Congress has given the President statutory authorization for orders like the travel ban, the courts should give great deference to the executive under Youngstown in reviewing plaintiffs' Establishment Clause claims.  Litman and Samuel, or L&S for short, argue that Youngstown is only applicable to disputes about the allocation of federal power between the President and Congress (that is to say, though they don't precisely say this, claims that the President has acted in excess of his powers under Article II), not claims that the President has violated provisions of the Bill of Rights which limit federal power as a whole.  

I think that's entirely correct, though I'm not sure what saying things like, to quote the profligately capitalized headline for the piece, "Texas's Amicus Brief Makes An Argument That Is So Obviously Wrong Some People Thought It Was Not Worth Responding To,"* adds to the argument other than a gratuitous (and completely unfunny, unless intended as Take Care self-parody, in which case, mildly funny!) attempt at snarky insult to the people working in the Texas SG's office, or the professors who originally raised Youngstown as a defense of the order.  It's almost certainly the case of a great many perfectly good arguments that "Some People" mistakenly thought them "So Obviously Wrong" that they were "Not Worth Responding To" (even people who L&S "admire and respect," see endnote), just as it's the case of many bad arguments that some people (usually the ones making them) think them so obviously right that response would be futileHowever admirable and respectable these "Some People" are, the only argument that's laughably wrong here is the suggested inference from the fact that some people think Texas is laughably wrong to the conclusion that it is.

I also think it would occur to any minimally charitable reader of Texas' brief that the Texas SG, who's a pretty sophisticated Supreme Court advocate, may well understand L&S' indeed trivially obvious points about Youngstown, but cleverly chose to respond to the statutory arguments against the ban advanced in two strong concurring opinions -- which Texas may be concerned will persuade the Court to deny cert or affirm, as their authors undoubtedly hoped -- in the guise of a Youngstown argument against plaintiffs' constitutional claims.  The reason Texas would do this is that the majority opinion below only addressed those constitutional claims, and criticizing the concurring opinions doesn't naturally fit into any of the traditional reasons for granting cert (as relevant here, the importance of the issues decided below, and that the decision below was wrong), even though those opinions may counsel against cert.  The bulk of what's framed as a Youngstown argument is in substance an argument that, contrary to Judges Keenan's concurrence, Trump's order was authorized by 8 U.S.C. 1182, and that contrary to Judge Thacker's concurrence (as well as some very forceful blogging by Samuel), Trump's order did not violate 8 U.S.C. 1152.  The Youngstown framing seems to me to be just that: a framing device intended to avoid the awkwardness of directly attacking the concurring opinions below at the cert stage. 

While I agree, L&S's snark and perhaps uncharitably literal reading of Texas's brief aside, that statutory authorization for the President's actions does not make them constitutional under Youngstown, which is best understood as an Article II doctrine only, not a general test of the constitutional validity of presidential actions, I am not sure that I agree that statutory authorization is simply "irrelevant to the claims in the travel ban litigation," that congressional authorization "wouldn't change any of the analysis about whether the actions that the President did take did in fact violate the First Amendment" (emphasis in original), or that courts "don't need . . . to pause to consider whether there are any statutes authorizing . . . the President's actions, when they address a claim that the President has violated an individual's rights, or a particular amendment to the Constitution."  This seems very possibly wrong in the following way.

I take it a fighting question in the travel-ban litigation, though L&S may think it an extremely easy one, is whether or not the Establishment Clause applies at all in immigration.  Congress has authorized the President, in 1182, to suspend the entry of any "class" of aliens whose entry he deems detrimental to the interests of the United States, with no exception for religious classes.  In 1152, Congress forbade immigrant visa preferences on a number of grounds, including race and sex; it did not, interestingly, forbid immigrant visa preferences on the basis of religion.  Congress has, as Josh Blackman chronicles here, given special preferences in immigration to ministers going back to at least the 1880s, given preferences in asylum to religious minorities claiming religious persecution, requiring immigration courts to regularly hold trials on asylum-seekers' religious beliefs, and has given preferences to Jewish and evangelical Christian immigrants from the Soviet Union.  All of these laws would likely be on shaky constitutional ground if they concerned some important domestic governmental benefit, and their passage seems to suggest that the Congresses that enacted them and Presidents that signed them believe that the Establishment Clause applies with less (if any) strength in immigration than in domestic contexts.  As the Court wrote in an opinion it uncritically cited today that denied an equal-protection challenge to an entry restriction, "in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens."

Now, L&S say that congressional authorization is irrelevant to whether some presidential act violates the First Amendment, because the First Amendment binds Congress and the President alike.  But this doesn't quite follow, indeed doesn't follow at all, because congressional authorization of religious exclusion in immigration, and a tradition of religious preference in immigration, could be relevant to what the Establishment Clause means in the first place.  As the Court recently put it in Noel Canning, while "it is the 'duty of the judicial department . . . to say what the law is,' it is equally true that the longstanding 'practice of the government' can inform our determination of 'what the law is.'"  This sort of use of historical practice is not a remotely novel concept, and while it's invoked most often in separation-of-powers cases (though related uses of tradition are rife in substantive due process cases), it's hardly out of bounds in individual-rights cases generally or Religion Clause cases specifically.  Indeed, only three years ago, in an Establishment Clause case, the Court wrote that "it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.  Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change."  

That passage, to be sure, particularly looks on possibly originalist grounds to historical practices dating back to the Founding, and I'm unaware of Founding-era religious preferences or discrimination in immigration, though I would not be shocked to learn that they existedBut it's far from obvious that the only historical practices that matter in Establishment Clause cases are Founding-era practices.  Arguments from post-Founding historical practice are certainly strongest in separation-of-powers cases, as there they can be justified in terms of interbranch acquiescence.  But as Curtis Bradley and Trevor Morrison wrote in the Harvard Law Review a few years ago, "not all reasons for invoking practice depend on acquiescence."  As they pretty convincingly argue, one could care about post-Founding historical practice for any number of originalist, Burkean, popular-constitutionalist, common-law constitutionalist, and reliance-based reasons.  And I strongly doubt that there are many (any?) constitutional lawyers or scholars who would claim that post-Founding congressional practice is completely irrelevant to how we should interpret, say, the Fourth Amendment, or the Fifth, or Sixth, or Eighth.

To be clear, I mean to make no claims about the extent of the practice of religious preferences in immigration or how far back that practice may go, the extent to which that practice could be justified under domestic Establishment Clause doctrine, or the extent to which post-Founding practice should inform the interpretation of the Establishment Clause in areas on which the courts, until this year, have been virtually silent.  But I do mean to claim that the fact that two branches of government (if the ban's legal critics are right about its motives) have given their blessing to religious discrimination in immigration absolutely has some bearing on what the third branch ought to do with them.

* To be fair, I don't know if L&S are responsible for their headlines, or if some crackerjack Take Care editor is.  But the post itself says much the same thing in much the same way: "Before we [engage with this argument], a note of caution: When we wrote the original post, we were told (by several people whom we admire and respect) that perhaps this post wasn’t even worth writing, because the argument we were rebutting was so silly."  Also, the Youngstown "argument is so obviously wrong that 'many law students have spotted it'" (quoting, for authority, one of L&S's own tweets).  Also, the Texas Law Review is (un)subtly shamed for having "elected to reprint in its online companion" some blog posts by Josh Blackman making that obviously wrong argument.  I have always assumed that gripes about law-review publication choices are the lifeblood of law-professor water cooler gossip, but only on Take Care can we non-academics find those gripes in writing -- and about a law review's online companion's publication choices no less(!) 

Here, I should confess to a minuscule degree of bias on account of the fact that the offending Tex. L. Rev. See Also piece cited a comment I made on someone else's blog post, which was a fun first (for my blog comments, not, I'm immodest enough to say, for this blog) that went a little ways towards justifying what's now been nearly half a lifetime of inveterate law-blog commenting.  That bias notwithstanding, the piece in question, a critique of the Ninth Circuit's first decision in the travel-ban case, though marred by an argument that I at least deem obviously mistaken, was an otherwise fine dissection of an opinion that I think most people now concede was extremely weak, and amply deserved its publication in a law review's online companion.  Even were that not the case, it strikes me as bad form to take a barely veiled dig at a law review for publishing an article because one doesn't agree with the arguments the article makes (absent factual error about what the law just is that I don't think is quite present here, as Youngstown isn't, at least on its face, circumscribed in the ways L&S cogently argue it should be).

Monday, June 12, 2017

Morales-Santana on "Entry Preferences for Aliens"

I have virtually no interest in the travel-ban litigation at all, a statement which may seem belied by this and one other post I'll be doing today or tomorrow, but I just wanted to note, as I hadn't seen it noted anywhere, that today's opinion in Sessions v. Morales-Santana has something to say about the appropriate standard of review in cases where it's alleged that some broad exclusion of aliens is unconstitutionally discriminatory.  In describing Fiallo v. Bell, the Court writes:

The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. 430 U.S., at 788–789, and n. 1. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Id., at 791. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress' “exceptionally broad power” to admit or exclude aliens. Id., at 792, 794. This case, however, involves no entry preference for aliens. MoralesSantana claims he is, and since birth has been, a U.S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review.
Some quite tentative observations:

1.  In writing this passage, and in joining it, Justice Ginsburg and the rest of the Court (with the notable exceptions of Thomas and Alito, who concurred in the judgment, and Gorsuch, who did not participate) could not have been unaware that the travel-ban order is a sort of "entry preference [or anti-preference] for aliens," and must have had the travel-ban cases in mind.

2.  The parenthetical "rational-basis review" is intriguingly gratuitous and possibly incorrect.  Fiallo did not talk in terms of rational-basis review; nor did Mandel, on which it wholly relied.  Fiallo could easily be read to hold that gender discrimination or other sorts of normally suspect discrimination as between aliens are essentially unreviewable; it's hard to find review of any kind in Fiallo and there are many statements in it to the effect that matters of alien exclusion "are policy questions entrusted exclusively to the political branches," and that "it is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision."  Perhaps most notably, in addressing an argument that the statute at issue there was based on "an overbroad and outdated stereotype" about the fathers of illegitimate children, the Court said in footnote 9 of Fiallo that complaints about invidious stereotypes where aliens were concerned "should be addressed to the Congress rather than the courts."  The Court in no way doubted that those stereotypes motivated the statute or suggested that matters might have been different were there more evidence of those stereotypes.  Footnote 4 of Fiallo is also rather remarkable in its apparent assertions of non-reviewability; there, the Court approvingly paraphrases/quotes Justice Frankfurter in Galvan v. Press as writing that "much could be said for the view that due process places some limitations on congressional power in the immigration area, were we writing on a clean slate," but that "the slate is not clean," and concludes that it is "no more inclined to reconsider" Galvan and cases like it "today than we were five years ago when we decided [Mandel]."  That is to say, due process does not even place some limitations on congressional power in the immigration area, though much could be said for such a view; it places none.

3.  It is also mildly noteworthy that Justice Ginsburg writes that Fiallo relied on Congress' power to exclude aliens. Fiallo did indeed talk in those terms; it also said that "the power to expel or exclude aliens [w]as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control" (emphasis added).  There could be some effort here to preemptively narrow Fiallo to congressional exclusions.

4.  At the same time that the Court's discussion of Fiallo might seem to ramp scrutiny up a bit from the somewhat delphic facially legitimate and bona fide standard in Mandel, it also may ratchet scrutiny down.  It's very difficult for me to see how to cohere Fiallo, as the Court described it, with the travel ban's critics' insistence that courts can leverage the bad-faith exception to Mandel into reviewing the travel ban like they would any other statute or rule in an Establishment Clause case.  In Fiallo, Congress enacted a statute that facially discriminated among aliens on the basis of gender and illegitimacy; according to the Court today, Fiallo held that those facial discriminations, motivated by gender/illegitimacy stereotypes though they may have been, should only be reviewed for rational basis because of Congress's broad power over aliens.  Proving that the travel-ban order is really a stereotype-motivated religious gerrymander in national-origin disguise, it seems to me, merely gets you to exactly where the plaintiffs in Fiallo were from the start.  

Of course, that perhaps bold statement has to be adjusted for differences between religious discrimination and gender/illegitimacy discrimination, but those seem to be differences without a distinction inasmuch as the Court was very clear today that Fiallo modulated an otherwise "exacting standard of review" into rational-basis review because Congress was making entry rules that discriminated amongst aliens.  The bad-faith exception may only apply or make sense, I want to tentatively suggest, in cases where individual consular officials give some preexisting statutory reason for excluding individual aliens that arguably has been given in bad faith, not when Congress or the President promulgate a new policy about which classes of aliens may not enter the country that allegedly or facially discriminates on some normally suspect ground.  

5.  The statement at the end of the Court's discussion of Fiallo that Fiallo doesn't apply because Morales-Santana "claims" he is a citizen is strange; as I understand the case, it was about whether Morales-Santana's claim was right, and the Court held today, for remedial reasons, that it wasn't.  What the Court says would make more sense if it said that Morales-Santana, citizen or not, is at least a lawful permanent resident and that cases that turned on Congress's plenary power to exclude aliens from entry are inapposite.  I don't think, though, that this language provides an out for plaintiffs in the travel-ban cases to say that because they claim that the people on whose behalf they're suing should be able to enter the country, cases like Fiallo and Mandel do not apply.