**This post now contains a hopefully instructive back-and-forth in the comments section between me and Ryan Williams, the author of the titular proposal to overhaul, or in his view reinterpret, Marks.
One doesn't call one's blog "The Narrowest Grounds" without a healthy obsession with the Marks doctrine, that often mystifying (but really quite simple) heuristic for deciding which opinion, if any, states the holding of a Supreme Court decision that lacks a majority opinion. And one wouldn't be much of a Court-watcher if one weren't a little curious about how newly confirmed Sixth Circuit judge Amul Thapar (who was a short-lister for the Scalia vacancy before his confirmation) would fare in his first oral argument as a circuit judge, which also happened to be his first en banc. So I was delighted to hear Judge Thapar jump on counsel in the first 20 seconds of their argument last week with a string of engaged questions on how to apply Marks to Town of Greece v. Galloway, a recent 3-2-4 decision of the Court on legislative prayer. (Counsel for amicus in support of the plaintiff begins at 11:20 of the argument and Thapar starts in shortly after; the plaintiff argued pro se.) Unfortunately, Judge Thapar's questions reflect a common misunderstanding of Marks, the prevalence of which in turn reveals the deep incoherence of the doctrine. Marks, I conclude, should be replaced by Ryan Williams' proposal in "Questioning Marks," which gets what the law should be here exactly right—even though his rule would leave courts, contrary to what he claims, with considerably less guidance in cases governed by fractured precedent, and would require the Court, contrary to what he claims, to overrule Marks.
A. A Perhaps Irrelevant but Hopefully Amusing Sixth Circuit-Themed Prologue
By way of prologue, the Sixth Circuit has historically had a bee in its bonnet about Marks. This is in part because the Sixth Circuit, historically an ideologically fractious court, loves to go en banc on those issues that are so ideologically fractious that they fracture the Supreme Court, and then paper over their ideological disagreements in the most legalistic way possible by exhaustively reasoning that their respective favorite concurring opinions in a fragmented Supreme Court decision conveniently happen to be the Court's Marks holding, or, if they dislike all of the concurring opinions they have to choose from, that none of them are. One of the most memorable (in more ways than one) opinions in the Sixth Circuit's history, Judge Boggs' dissent in the Sixth Circuit's en banc in Grutter v. Bollinger (yes, that Grutter v. Bollinger), began with a seething 5600-word essay on Marks as applied to Bakke (for perspective, that's 500 words longer than this post), with scintillating section headings like "No Set and Subset or Continuum Available," "The Potential for Two Marks Holdings," and, most portentously, "The Dicta Problem."
The late Judge Martin, the object of Judge Boggs' ire in Grutter (in more ways than one), would respond years later with a mini-essay of his own on "Marks-meets-Rapanos," which seems to have been intended to make a major contribution on the subject but unfortunately defined Marks narrowest grounds in two completely contradictory ways—as logical subsets of broader opinions, and as whichever grounds change the law the least from prior precedent. Several months later, Judge Sutton offered his much clearer take on Marks; it, however, gets much less attention because it doesn't read like a Marks-themed mystery novel. The panel opinion underlying last week's en banc, baffled by Judge Martin's contradictory definitions, split 2-1 on Marks. And funnily enough, the other Sixth Circuit en banc last week, which concerned Ohio's execution drug protocols, addressed an area that used to be a Marks problem (albeit an extremely easy one, even for the Sixth Circuit) until the Court cleared the problem up in Glossip two years ago, though not without what it fairly called an "inexplicabl[e]" dissent from Justice Sotomayor on the Court's prior Marks holding. In short, while advocates in the D.C. Circuit are advised to principally prepare how to answer that court's inevitable questions about Chevron, advocates in the Sixth Circuit might be advised to prepare, at least when relevant, to talk about Marks.
B. How to Apply Marks to Town of Greece, and Why Judge Thapar and Others Are Confused About What a Narrowest Ground Is.
The Marks problem posed by Town of Greece is a classic one. In Town of Greece, five Justices concurred in a judgment reversing the Second Circuit's injunction of Greece's legislative prayers. Justices Thomas, joined by Justice Scalia, concurred in the judgment on the ground that Greece's legislative prayers were not unconstitutional because they were not legally coercive; absent legal coercion to participate or discrimination as to which faiths got to give the prayers, they would have held that all legislative prayers were constitutional. Justice Kennedy, joined by the Chief Justice and Justice Alito, held that Greece's legislative prayers were not unconstitutional because they were not legally or practically coercive, in the sense that social or political pressures coerce participation; absent discrimination or legal or practical coercion, they held that legislative prayer was constitutional.
Under the prevailing approach to Marks, and the seemingly most legitimate—the logical-subset approach pioneered by Judge Silberman in King v. Palmer, where a court is supposed to ask whether "one opinion is a logical subset of other, broader opinions" concurring in the judgment, such that it can conclude that a majority of the Court concurring in the judgment is logically committed to that subset—it should be easy to see what the Marks rule in Town of Greece is. Justice Thomas would allow virtually all legislative prayers: those that are non-discriminatory and do not legally coerce participation are constitutional under his rule. Justice Kennedy would allow a subset of the legislative prayers Justice Thomas would allow; those that are non-discriminatory, do not legally coerce participation, and do not practically coerce participation through social or political pressure are constitutional on his rule. So it can be said, as Judge Silberman wrote in King, that Justice Kennedy's opinion "embod[ies] a position implicitly approved by at least five Justices who support the judgment"; five Justices agreed that the legislative prayers that Justice Kennedy would allow are constitutional.
At oral argument last week, Judge Thapar didn't see it that way. He asked why Justice Thomas's opinion wasn't the logical subset of Justice Kennedy's. After all, Justice Kennedy would invalidate a fairly sizable set of legislative prayers: those that legally or practically coerce. Justice Thomas, on the other hand, would invalidate a subset of that set: just those that legally coerce. Wouldn't, Judge Thapar reasonably asked, "all five Justices at the very least agree that legal coercion violates the Establishment Clause?" On the other hand, Judge Thapar argued, only three Justices think that practical coercion violates the Establishment Clause.
Judge Thapar is right on all counts; he's just wrong about his conclusion. Justice Thomas's opinion is a subset of Justice Kennedy's, as to the question of what legislative prayers violate the Establishment Clause. Five Justices do agree that legally coercive legislative prayer violates the Establishment Clause; only three think that practically coercive legislative prayer does. What this misses, though, is that Justice Kennedy's opinion is a subset of Justice Thomas's as to the question of what legislative prayers don't violate the Establishment Clause. Five Justices agree that legally and practically non-coercive prayers don't violate the Establishment Clause; only two think that legally non-coercive but practically coercive legislative prayers don't violate the Establishment Clause. And Kennedy, again, thinks that only a subset of the prayers that Thomas says don't violate the Establishment Clause are actually constitutional.
This seems to present a paradox, but it's one that classical Marks doctrine has an easy answer to. What Judge Thapar misses, and what many people miss in thinking about Marks, is that the logical subset on which five Justices concurring in the judgment must agree must be one that supports the judgment, and that narrowness is defined relative to the judgment. Marks asked lower courts to identify "that position taken by those Members who concurred in the judgments on the narrowest grounds," i.e, to determine whose grounds for concurring in the judgment were narrower grounds for concurring in that particular judgment, not to identify whichever position is "narrower" in some more general, non-judgment-specific sense. In Town of Greece the Court held that Greece's legislative prayers were constitutional, so the subset that five Justices have to agree on in order for any of their opinions to satisfy Marks must be a proposition about which legislative prayers are constitutional, not which ones aren't. Otherwise, it wouldn't be a ground for the judgment. Five Justices agreed that legislative prayers that do not discriminate or coerce, legally or practically, are constitutional; that is a rule of law that supports the judgment that Greece's legislative prayers were constitutional. The implicit agreement of five Justices that legislative prayers that discriminate or legally coerce are not constitutional, on the other hand, does not explain the judgment that Greece's prayers are. Put another way, given that the Court reversed an injunction of Greece's prayers, the narrowest ground for concurring in that judgment is a rule that upholds fewer prayers. Had the Court held that Greece's legislative prayers were unconstitutional, the narrowest ground for that holding would be a rule that invalidated fewer prayers.
C. What Judge Thapar's Misunderstanding Reveals About Marks' Incoherence and the Failed Majoritarian Aspirations of the Logical-Subset Approach.
Once understood this way, Marks is perfectly workable, and the meaning of "narrower" in Marks is no longer a mystery. But it doesn't make much sense. First, consider Judge Thapar's misunderstanding of Marks as applied to Town of Greece. His misunderstanding doesn't reveal something uniquely paradoxical about Town of Greece; the same misunderstanding is possible in every case to which Marks applies. Take, for example, United States v. Alvarez, where six Justices voted to invalidate a law that regulated false speech. Four applied strict scrutiny; two said that only intermediate scrutiny applied to false speech. The law in Alvarez failed both. Most people have no difficulty in seeing that intermediate scrutiny is a subset of strict scrutiny in that case; it invalidates a subset of the laws that strict scrutiny would, and six Justices agreed to invalidate at least that subset. But it's just as true that strict scrutiny is a logical subset of intermediate scrutiny; it upholds a subset of the laws that intermediate scrutiny would, and six Justices were necessarily committed to upholding the subset of false-speech regulations that passed strict scrutiny. The same is true of any Marks case you can imagine; if one opinion delineates a subset of laws that five Justices concurring in the judgment agree are constitutional, a different opinion will necessarily delineate a subset of laws that five Justices concurring in the judgment agree are unconstitutional. If one opinion delineates a subset of plea agreements that five Justices concurring in the judgment agree are "based on" the Sentencing Guidelines, another opinion will necessarily delineate a subset of plea agreements that five Justices concurring in the judgment agree are not based on the Sentencing Guidelines. That's just how logical subsets in this context work; if I think that a certain set of things are "x," and you think that a subset of that set of things are x, I think that a subset of the things you think are not x are not x.
Of course, in all cases to which Marks applies, one of the two logical subsets on which the Court agrees will actually support the judgment, while one won't. So this may not seem a problem; of course courts should follow the point of majority consensus that supports the Supreme Court's judgment. But I think it is a serious problem for two reasons.
In the first place, it makes the content of controlling precedent turn on the happenstance of how the rules the various Justices adopted applied to particular facts, or how the Justices think those rules apply to particular facts. Had the prayer in Town of Greece been deemed legally coercive, Justice Thomas and Justice Kennedy would have voted to strike it down, and it would have been Justice Thomas who offered the narrower ground for that holding. Had the law in Alvarez happened to pass intermediate and strict scrutiny, the narrower ground for upholding it would be strict scrutiny, and we'd be saying that the Marks rule on false speech is that only laws regulating false speech that pass strict scrutiny are constitutional. Because it so happened that it failed intermediate scrutiny, we say that the narrower ground for the holding that it was unconstitutional was intermediate scrutiny. Oddly, then, because the issue of regulating false speech first reached the Court with an ill-tailored, basically indefensible law, the precedential rule on such laws, as between the opinions concurring in the judgment, ends up being one that upholds as many of them as possible. But had the law in Alvarez been one that was narrowly tailored to a compelling interest in regulating false speech, the rule that would bind lower courts would be one that upheld as few false-speech regulations as possible. Certainly this approach identifies reasons for judgments to which a majority of the Court subscribe, and in that sense instantiates the traditional approach to precedent on which the Court binds lower courts by giving majoritarian reasons for its judgments. But it does this at the cost of randomly translating the Justices' positions into precedent.
Second, Marks overstates consensus. In Town of Greece the majority concurring in the judgment only agreed that legislative prayers that do not legally or practically coerce are constitutional. Implicit assent to that proposition grounds the judgment. But five Justices did not agree that legislative prayers that either legally or practically coerce are unconstitutional; as far as what's unconstitutional goes, five Justices only could agree that legislative prayers that legally coerce are unconstitutional. Once Justice Kennedy's opinion is identified as the one that stated the Court's Marks rule, however, lower courts under Marks are to follow it in full, as if five Justices not only agreed with Justice Kennedy about which legislative prayers are constitutional, but which ones are not. Recall that under Marks we are to follow the "position" taken by the Justices who concurred in the judgment on the narrowest grounds, not just some aspect of their position with which five Justices implicitly agree.
What results is obesiance to legal rules with which some Justices concurring in the judgment do not agree, not even implicitly. If a court finds that Justice Kennedy's opinion states Town of Greece's Marks rule, it will enjoin legislative prayers that fail Justice Kennedy's test, even though only three Justices concurring in the judgment agreed that practically coercive legislative prayers are unconstitutional. Marks takes implicit consensus to a shallow proposition like "legislative prayers that neither legally nor practically coerce are constitutional" and launders that consensus into the much deeper proposition, which then binds lower courts, that "legislative prayers that neither legally nor practically coerce are constitutional, and legislative prayers that either legally or practically coerce are not," or more simply, "the test for whether a legislative prayer is constitutional or not is whether it neither legally nor practically coerces." Likewise, in Alvarez, where six Justices agreed that regulations of false speech that fail intermediate scrutiny are unconstitutional, and concurred in the judgment because of it, Marks will take that consensus and pretend there was consensus to the far broader proposition that the test of the constitutionality of a regulation of false speech is intermediate scrutiny, though four Justices concurring in the judgment would strike down a regulation of false speech that passed intermediate scrutiny and failed strict.
Because of the nature of Marks logical subsets, the same problem arises in any case where Marks applies. Put in roughly formal terms, in a Marks case five or more Justices agree that something is x (where x stands for constitutional, unconstitutional, based on the Sentencing Guidelines, or what have you). Some of them think that something is x if it is p; others think that something is only x if it is p and q. All five then agree that something is x if it is within the subset of p things that are both p and q. On the other hand, all five agree that something isn't x if it's within the subset of non-q things that aren't even p. If that was all that bound lower courts, that would be fine. But Marks says that because majority agreement that something is x if it's p and q grounded the judgment that the thing in the case itself was x, the test for whether something is x or not x is whether or not it's both p and q, though there isn't majority agreement that something isn't x if it isn't both p and q.
The people who subscribe to a logical-subset theory of Marks think the point of identifying the narrowest ground on which a Justice concurred in the judgment is to find a subset of legal grounds for the Court's judgment to which the majority of the Court concurred in the judgment necessarily agree, on the theory that lower courts can only be bound by majority agreement on legal grounds for the Court's judgments. If that's the point of Marks, then Marks as universally applied isn't doing what it's supposed to. Instead of binding lower courts to only those points of law to which the majority concurring in the judgment implicitly agreed, it binds them to rules with which Justices concurring in the judgment explicitly disagreed.
Perhaps following a Marks rule can be justified on the ground that it represents the position of the swing vote necessary to forming a majority for the judgment, and perhaps a swing-vote theory of Marks can be justified on a traditional command theory of precedent; without the swing vote, there's no judgment, so it's his legal reasoning that's truly necessary to the judgment. Perhaps it can be justified on a predictive theory of precedent; were the Court to grant cert in any given legislative-prayer case before a lower court, the argument would go, the path to a majority would go through Justice Kennedy, so a lower court should try to work out how Justice Kennedy would decide it. (At least the path to a majority would go through Kennedy if you assume that Justice Gorsuch doesn't agree with the Town of Greece dissenters; these sorts of unseemly, if empirically grounded, assumptions are part of the hazards of a predictive theory of precedent.) I am inclined to reject the swing-vote and predictive approaches to Marks for reasons either too inchoate or too complicated to go into here ("Questioning Marks" does a good job of rejecting them), but for now all I want to say is that by its own terms, the logical-subset approach to Marks is a failure. It does not live up to its aspirations of only binding courts to rules implicitly agreed to by the majority of the Court that concurred in a judgment, even though it touts itself for doing just that and vehemently rejects approaches to Marks that bind lower courts to opinions that do not represent logical-subset majority consensus.
D. "Questioning Marks"—A Solution. . .
What does live up to the logical-subset approach's majoritarian aspirations is Ryan Williams's proposal in "Questioning Marks." Williams argues that a lower court should simply follow all opinions concurring in a fractured case's judgment. If the majority concurring in the judgment would agree on the result in a given case before a lower court, the lower court is bound. But if the result would differ depending on which opinion concurring in the judgment the lower court applies, the lower court isn't bound, and can choose between the various rules proffered by the Justices concurring in the judgment. So in the case of Town of Greece, a lower court is bound by the two propositions as to which the majority implicitly agreed; a legislative prayer is constitutional if it neither legally nor practically coerces, and unconstitutional if it legally coerces. When it comes to prayers that are non-coercive in all senses, and prayers that legally coerce, both Justices Thomas and Kennedy's opinions point to the same result. A lower court is not bound, however, to follow what the prevailing approach to Marks would call the Marks rule of Town of Greece: that a legislative prayer is unconstitutional if it practically coerces. If a legislative prayer practically coerces but doesn't legally coerce, Justices Kennedy and Thomas would disagree on whether it's constitutional, and lower courts have discretion to follow whichever opinion they find more persuasive on that point.
1. That (Correctly) Deprives Lower Courts of All the Guidance That Marks Purports to Offer. . .
Williams, being a savvy marketer of his idea, claims in favor of his approach to fractured opinions that it actually gives lower courts more guidance than the logical-subset approach to Marks, pointing out that in cases where five Justices will always agree on the same result but have logically unrelated reasons for doing so (for example, in McDonald five Justices agreed that the Second Amendment was incorporated as to the states, but couldn't agree on what part of the Fourteenth Amendment did the incorporating), his rule will offer guidance where the logical-subset approach doesn't. It isn't at all clear to me, though, that a significant number of fractured opinions generate predictable results under Williams' approach without offering a logically nested set of reasons. He gives two examples, Rapanos and McDonald, of a fractured opinion that's technically failed to generate a Marks rule on the logical-subset approach (though no one even thinks of McDonald in Marks terms); Freeman, as a pending cert petition and a couple circuit opinions argue, is perhaps another. On the other hand, we can all rattle off lots of fractured opinions where one opinion's rationale cleanly nests within that of another. It strikes me that constitutional doctrine (which tends to produce most of the Court's fractured opinions) being what it is, it will usually be the case that one opinion concurring in the judgment states a rule that's a logical subset of other opinions concurring in the judgment, either because it requires a more or less demanding standard of review that's subsumed within the other opinion's standard, or because it adds or subtracts some factor from the other opinion's test. Moreover, for Williams to be right about his approach to Marks offering significantly more guidance, the areas of logical non-overlap that cause an opinion to run afoul of the logical-subset approach have to be relatively small (as they perhaps are in Freeman or Rapanos), or his approach, which only binds lower courts where opinions agree on results, won't offer much more guidance than the logical-subset approach does in these sorts of cases.
What is clear to me is that Williams' approach deprives lower courts of precedential guidance in the cases where identifying a Marks rule actually matters. Courts could figure out, without Marks or really even Town of Greece, that a legislative prayer in which onlookers are legally coerced by contempt sanctions to participate violates the First Amendment. Courts could figure out, just from reading Town of Greece without the aid of a Marks doctrine, that a legislative prayer that isn't discriminatory or coercive in any way doesn't violate the First Amendment. Courts could figure out, without any help from the Supreme Court at all, that a regulation of false speech that passes strict scrutiny is constitutional, and after reading Alvarez, courts could figure out without help from Marks that at the least regulations of false speech that fail intermediate scrutiny are unconstitutional. What courts want Marks for is to figure out what to do with cases where the majority that concurred in the Court's judgment would disagree. The reason people fight over Marks in cases is that it matters in those cases whether a legislative prayer need only be non-coercive legally or must be non-coercive practically too, or whether a regulation of false speech has to pass intermediate scrutiny or strict scrutiny too. The logical-subset approach gives lower courts answers to these questions in the numerous fractured cases (more numerous in my view than Williams's) where one opinion is a logical subset of the other. Williams's approach does not, and really only tells lower courts to heed obvious constitutional truisms and to not to be on the wrong side of a whole majority concurring in a judgment.
That, however, is in my view a virtue of his rule, not a bug (though courts thinking about adopting his rule and jettisoning the logical-subset approach ought to realize what they're getting into and not take his claims of increased guidance for granted). Instead of binding courts to legal rules that only one or two Justices think are right, for the reason that a shallower version of those rules randomly happened to be the narrowest ground for the result at which the Court happened to arrive on the facts of the case before them, Williams would only bind lower courts to points on which the majority of the Court concurring in the judgment agreed. As to points on which the Court can't agree, there's no reason for its decisions to be binding, and no urgent need for binding guidance on the areas of intra-majority disagreement in the handful of fractured opinions the Court issues.
2. And Requires the Court to Overrule Marks.
Unfortunately, Williams's proposal can't become the law until we overrule Marks—though Williams, being, as I say, a savvy marketer of his idea, insists otherwise. Marks said that lower courts were bound by "the position taken by those Members [of the Court] who concurred in the judgments on the narrowest grounds." This language, whatever other ambiguities it famously has, clearly instructs lower courts to figure out which "Members" concurred on the narrowest grounds (whatever that means) and then follow their "position." Williams suggests that it might be read to mean that courts are bound by "the reasoning within the concurring opinions [by which he means a combination of reasons gleaned from multiple concurring opinions] that a majority of the concurring Justices support." I simply cannot see how he gets to there from Marks.
Besides being hopelessly at odds with what Marks said about identifying the holding of a fractured opinion, he can't begin to explain the actual holding of Marks. In Marks, the Court, after stating its narrowest-grounds rule, held that under that rule "the view of the Memoirs [v. Massachusetts] plurality therefore constituted the holding of the Court and provided the governing standards . . . [and] was the law" on what could be prosecuted as obscene in the post-Memoirs, pre-Miller v. California years. (Marks was decided after Miller but involved a pre-Miller offense; hence the need to clarify what Memoirs meant after it had been overruled.) It didn't say that under Memoirs, lower courts were obliged to hold a prosecution for obscenity unconstitutional if it were under the plurality's test and that of the concurring opinions, but that if a prosecution were constitutional under the plurality's test but not the concurring opinions, a lower court could have done what it wanted. It simply said that the plurality's "view" was the Court's "holding," "provided the governing standards," and "was the law." Williams says that in the context of Marks itself, which was a case that he claims only turned on what the law was when the Memoirs plurality and the concurring opinions in Memoirs generated the same result, what the Court said made sense. But this is really just to say that the Court could have reasoned in a completely different fashion to the same result. Marks did not say that for purposes of retroactivity, the law pre-Miller was at least what the Memoirs plurality said it was ; it said it was the holding of the Court, the governing standard, and the law, from which Miller "marked a significant departure."
What really proves Williams wrong is two things: the Court's discussion of pre-Memoirs practice, and the fact that, in Marks, the concurring opinions and plurality in Memoirs didn't necessarily align. First as to the practice. In arguing that Memoirs' holding was clear, fractured though it was, the Court praised lower courts for correctly and universally reasoning that under Memoirs "[m]aterials were deemed to be constitutionally protected unless the prosecution carried the burden" of meeting the plurality's test, in which case they weren't protected—though two concurring Justices in Memoirs would have banned obscenity prosecutions altogether. Under Williams's approach, lower courts reviewing a prosecution of materials that qualified as obscene under the Memoirs plurality would have had a choice: agree with Justices Black and Douglas that the First Amendment forbade all obscenity prosecutions, or agree with the Memoirs plurality that some materials could be banned as obscene. Yet that's just what the Court said lower courts correctly didn't do; Marks, in fact, is all about how definite and non-discretionary the law was before Miller, such that application of the Miller test to pre-Miller offenses was impermissibly retroactive.
As to the result of Marks, Williams says that Marks was just about whether you could give a Miller instruction on a pre-Miller offense without violating due process; if lower courts were bound pre-Miller to turn away obscenity prosecutions that didn't, at least, meet the Memoirs plurality's more demanding test, the answer was no. So, he reasons, that's all the Court had to decide: whether the plurality controlled when it aligned with the concurring opinions that would have banned obscenity prosecutions, and under those circumstances they could loosely talk of the plurality being controlling. But that's not really all that Marks was about; Marks was also about how the jury should be instructed on remand. The Court didn't know whether Marks was scot-free under the Memoirs plurality or not; in fact, as the Court noted, the Sixth Circuit had held below that he was guilty under either Miller or the Memoirs plurality, though the Court said that that should be left for a "properly instructed jury" to decide. So whether the district court had to instruct the jury under the Memoirs plurality, as I read Marks, or was free to choose between the Memoirs plurality and holding all obscenity prosecutions unconstitutional, as Williams reads Marks, mattered enormously. Contrary to what Williams suggests, the Court decided just this question, and held that Marks was "entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved were 'utterly without redeeming social value'"—that is, obscene under the Memoirs plurality. It then remanded for further proceedings consistent with its opinion, so a "properly instructed jury" could decide whether Marks really was guilty under the Memoirs plurality or not. Were Williams right, Marks couldn't have held what it did; it would have held that the district court could either give the instruction it described, or hold, if it wanted, that all obscenity prosecutions were unconstitutional. So I conclude that for "Questioning Marks" to become the law, the Court would have to overrule Marks first. But again I view this as a feature of Williams's proposal and not a bug.
Thursday, July 13, 2017
Monday, June 26, 2017
The Court Did Something Interesting Today...
granting certiorari in Digital Realty Trust, Inc. v. Somers. I will hopefully make some time to comment later this week on the significance of Digital Realty Trust, but roughly speaking, it's a case about what happens when lower courts apply Bond and, I must say, Burwell's atextual methodology (I think Burwell was correctly decided, but only on the alternative and at least not explicitly articulated ground of drafting error) to a distinctly non-Bond/Burwell-like problem. The closest analogy is really Bond, though what the lower courts have done with the statute at issue in Digital Realty Trust is vastly more defensible than Bond, which I deem perhaps the Court's least defensible statutory decision in its history.
The problem in Digital Realty Trust goes as follows. A section of the Dodd-Frank Act provides securities "whistleblowers" an array of anti-retaliation protections and incentives for whistleblowing. That section helpfully contains a definition of "whistleblower" that applies in that section alone; to quote the statute, "[i]n this section, the following definitions shall apply . . . ." A whistleblower is defined as "any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the [Securities Exchange] Commission, in a manner established, by rule or regulation, by the Commission." This is not an ordinary-language definition of whistleblower, to say the least; only whistleblowers who talk to the SEC count as statutory "whistleblowers."
Now, a later subparagraph of this not-overly-long section of Dodd-Frank, subparagraph (h)(1)(A), provides protection from retaliation to "a whistleblower" for any:
"lawful act done by the whistleblower—
It so happens that the disclosures required/protected by Sarbanes-Oxley referenced in romanette (iii) include internal reporting to management. So, if the section-specific definition of whistleblower is read into the anti-retaliation subparagraph, the subparagraph's shield from retaliation against Sarbanes-Oxley disclosures in romanette (iii) would only apply to people who made internal reports under Sarbanes-Oxley and blew a whistle to the SEC before they were retaliated against—which, it's claimed, will rarely be the case of anyone— thereby negating the apparent purpose of romanette (iii).
For this reason, both the Second and Ninth Circuits have simply declined to read the section's definition of whistleblower into the section's retaliation subparagraph, instead reading whistleblower in that subparagraph to just mean an ordinary-language whistleblower who makes disclosures of the kind protected by romanette (iii)—much as Bond, for much weaker contextual reasons, declined to read the Chemical Weapons Convention Implementation Act's definition of chemical weapon into that statute's only operative provision, replacing it with the Court's ordinary-language understanding of what constitutes a chemical weapon. Interestingly, both circuits justified that holding by reference to Bond and Burwell. I have some views about the propriety of that maneuver and how we should decide when it's appropriate to engage in definition-correcting moves of this kind, but those will have to wait until my next post. For now, I will just add that if all this doesn't sound exciting enough, this is a Chevron case(!!); the SEC has interpreted the statute to protect "three categories of whistleblowers"—not just the one category defined in the statute—including any person who makes a romanette (iii) disclosure. Imagine what Justice Gorsuch will have to say about that.
The problem in Digital Realty Trust goes as follows. A section of the Dodd-Frank Act provides securities "whistleblowers" an array of anti-retaliation protections and incentives for whistleblowing. That section helpfully contains a definition of "whistleblower" that applies in that section alone; to quote the statute, "[i]n this section, the following definitions shall apply . . . ." A whistleblower is defined as "any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the [Securities Exchange] Commission, in a manner established, by rule or regulation, by the Commission." This is not an ordinary-language definition of whistleblower, to say the least; only whistleblowers who talk to the SEC count as statutory "whistleblowers."
Now, a later subparagraph of this not-overly-long section of Dodd-Frank, subparagraph (h)(1)(A), provides protection from retaliation to "a whistleblower" for any:
"lawful act done by the whistleblower—
(ii)
in initiating, testifying in,
or assisting in any investigation or judicial or administrative action
of the Commission based upon or related to such information; or
(iii)
in making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 [statutory cross-references omitted] and any other law, rule, or regulation subject to the jurisdiction of the Commission." It so happens that the disclosures required/protected by Sarbanes-Oxley referenced in romanette (iii) include internal reporting to management. So, if the section-specific definition of whistleblower is read into the anti-retaliation subparagraph, the subparagraph's shield from retaliation against Sarbanes-Oxley disclosures in romanette (iii) would only apply to people who made internal reports under Sarbanes-Oxley and blew a whistle to the SEC before they were retaliated against—which, it's claimed, will rarely be the case of anyone— thereby negating the apparent purpose of romanette (iii).
For this reason, both the Second and Ninth Circuits have simply declined to read the section's definition of whistleblower into the section's retaliation subparagraph, instead reading whistleblower in that subparagraph to just mean an ordinary-language whistleblower who makes disclosures of the kind protected by romanette (iii)—much as Bond, for much weaker contextual reasons, declined to read the Chemical Weapons Convention Implementation Act's definition of chemical weapon into that statute's only operative provision, replacing it with the Court's ordinary-language understanding of what constitutes a chemical weapon. Interestingly, both circuits justified that holding by reference to Bond and Burwell. I have some views about the propriety of that maneuver and how we should decide when it's appropriate to engage in definition-correcting moves of this kind, but those will have to wait until my next post. For now, I will just add that if all this doesn't sound exciting enough, this is a Chevron case(!!); the SEC has interpreted the statute to protect "three categories of whistleblowers"—not just the one category defined in the statute—including any person who makes a romanette (iii) disclosure. Imagine what Justice Gorsuch will have to say about that.
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 not—I'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.
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 not—I'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 futile. However 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 existed. But 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).
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 futile. However 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 existed. But 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:
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.
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. Morales–Santana 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.
Subscribe to:
Posts (Atom)