Yearly Archives: 2017

Does the Constitution Require Due Process Abroad?

Jul 12, 2017 Ilya SominAdd a Comment

Do the rights protected by the Constitution constrain United States government actions outside our borders, especially those directed at noncitizens? The longstanding debate over this question has heated up again in recent years. It is one of the issues raised by the litigation over Donald Trump’s travel ban executive order. It is also a key element of Hernandez v. Mesa, a case recently addressed by the Supreme Court that raises the question of whether the Fourth Amendment applies to a case where U.S. Border Patrol agents fatally shot a 15-year-old Mexican boy just across the border.¹

Nathan Chapman’s important new article on the application of the Due Process Clause of the Fifth Amendment abroad, is a timely and important contribution to this debate. It compiles extensive evidence indicating that the Clause was originally understood to constrain U.S. government actions outside our territory, regardless of whether the targets are American citizens or not. If so, it may be that other constitutional rights also apply in such situations.

Some scholars have argued that the Due Process Clause applies to U.S. government actions all over the world because the text is phrased in general terms, without territorial limitation. But Chapman is the first to systematically compile originalist evidence defending this position. He considers a variety of federal government law enforcement efforts beyond U.S. borders from the 1790s to the 1820s.

Most of these involved enforcement of federal laws authorized by Congress’s Article I power to “define and punish Piracies and Felonies committed on the high Seas.” They included efforts to suppress piracy and the slave trade, and catch violators of U.S. tariff and embargo policies. Some of these cases also came under Congress’ authority to “define and punish” violations of “the Law of Nations,” though Chapman’s analysis does not indicate any major distinctions in the way the two types of legislation were treated under the Due Process Clause.

Pirates may seem quaint or even romantic today. But in the eighteenth and early nineteenth centuries, they were a serious threat to American and European commerce. Suppressing them was a major objective of early American foreign policy. Yet, as Chapman shows, both Congress and the executive branch consistently concluded that pirates could not be detained and punished without being afforded due process of law, including a trial in a regularly constituted federal court. This was consistent with pre-revolutionary British practice, with the major exception of trials of suspected pirates who were American colonists. The latter were often tried in special vice-admiralty courts.  Americans vehemently objected to this practice and sought to put an end to it.

The same was true of the procedures for detaining and trying suspected slave traders and smugglers. They too were afforded the protection of the Due Process Clause. Such prominent jurists and statesmen as Supreme Court Justice James Iredell, Albert Gallatin (a leading Jeffersonian voice on constitutional issues), and John Quincy Adams argued that this was required by the Constitution.

Importantly, these policies made no distinction between suspected pirates, smugglers, and slave traders who were foreign nationals and those who were American citizens. As President John Adams’ attorney general Charles Lee instructed in 1798, suspected pirates were to be tried in ordinary federal courts, “according to the law of the United States, without respect to the nation which each individual may belong, whether he be British, French, American, or of any other nation.” Similar principles applied to the seizure and condemnation of ships and property used by pirates and other criminals on the high seas.

Chapman shows that most of the contrary evidence cited by earlier scholars involved ships and prisoners taken in war or military operations, such as those against state-sponsored Barbary pirates. Just as we do today, Americans of the Founding era recognized that peacetime due process rules often do not apply in war.

While Chapman’s analysis is wide-ranging and compelling, I wonder if more could be done to consider alternative explanations for  some of his findings. In some cases, for example, it is possible that U.S. officials were reluctant to detain or punish foreign citizens without due process for fear of alienating powerful European governments. The early United States was not the superpower of today, and sought to avoid the wrath of more potent states, particularly Britain and France. The latter might well retaliate for real and imagined abuses committed against their citizens. Still, this concern is partly obviated by the fact that many of the cases discussed by Chapman involved officials framing their concerns in explicitly constitutional terms.

At least for constitutional originalists, Chapman’s findings have substantial implications for the present day. The Due Process Clause indicates that the government may not deprive individuals of “life, liberty, or property, without due process of law.” A substantial range of federal government activities abroad do just that. As Chapman explains, they include extraterritorial kidnapping and detention of criminal suspects, shootings by law enforcement officers (including the one at issue in Hernandez v. Mesa), and searches and seizures of property abroad for the purposes of obtaining evidence for prosecution. Whether or not the Fourth Amendment or other parts of the Bill of Rights apply to these situations, they all involve the deprivation of “life, liberty, or property” without the process typically required inside the U.S.

Chapman’s findings also have potential implications for extraterritorial application of other individual rights outlined in the Constitution. Like the Due Process Clause, most are phrased in general terms, without any territorial limitations, or constraints based on the citizenship of the individuals targeted.

If the Due Process Clause applies to U.S. actions abroad, why not the First Amendment and other parts of the Bill of Rights? If Congress’s power to punish crimes on “the high seas” is constrained by individual rights, why not its power over immigration, its power to regulate international commerce, and so on?

The fact that pirates were violators of international, as well as American, law makes it all the more striking that they were nevertheless covered by the Due Process Clause. If even pirates were not beyond the reach of constitutional rights, it seems hard to argue that potential immigrants or foreign-based violators of purely American legislation should be.

Unlike the power to punish crimes on the high seas, federal power over immigration is not specifically enumerated in the Constitution. Such Founders as Thomas Jefferson and James Madison forcefully denied that Congress and the president had any general power to restrict peaceful migration, a view that ultimately prevailed in the struggle over the Alien and Sedition Acts of 1798. Chapman, in fact, briefly argues that the Due Process Clause restricts congressional power over immigration, preventing the federal government from stripping statutory immigration rights without due process.

If so, perhaps other constitutional rights restrict immigration policy, as well. If Congress cannot bar foreigners in ways that violate the Due Process Clause, perhaps it also cannot bar them on the basis of criteria that undermine First Amendment rights, such as freedom of speech, assembly, and religion.

Many object to such reasoning on the ground that the immigrants have no constitutional right to enter the United States in the first place. But, of course, suspected pirates had no constitutional right to engage in piracy, suspected smugglers had no right to smuggle, and so on. Still, they could not be targeted in ways that violated the Due Process Clause.

As I have pointed out elsewhere, there is no constitutional right to receive Social Security benefits. Yet it would surely be unconstitutional for the federal government to restrict them to people who practice a particular religion or refrain from criticizing the government. Similarly, it may be that potential immigrants cannot be barred for reasons that trench on other constitutional rights.

Chapman’s argument does not definitively resolve the issue of which constitutional rights apply extraterritorially. Perhaps some rights simply have a different status from the Due Process Clause. A few are explicitly limited to citizens, such as the Privileges and Immunities Clause of Article IV.

But Chapman’s analysis does undercut oft-made claims that the original meaning of the Constitution implicitly embodies a general principle under which constitutional rights only constrain government actions on American soil or only those that target American citizens. At least with respect to the Due Process Clause, that simply is not true.

As Chapman recognizes, originalism is far from the only available constitutional theory. Restrictions on extraterritorial application of the Due Process Clause can still be defended on “living constitution” grounds. Later in the nineteenth century, he notes, American courts and government officials began to do just that: “Americans, faced with the challenges and prospects of a far-flung and culturally pluralistic empire, to some extent embraced the imperial logic of the British constitution that they had once repudiated.”

Due Process Clause protections were often repudiated or watered down in cases dealing with immigrants, foreigners, Native Americans, and others not seen as fully American. Instead of defending these principles on the basis of text and history, judges and others appealed to the supposedly “inherent” powers of sovereign governments—the same theory ultimately used to justify “plenary” federal power over immigration. Such theories have major flaws from the standpoint of text and original meaning. But they can be defended on various other grounds.

Chapman’s compelling article does not definitively resolve the debate over extraterritorial application of constitutional rights generally, or even the Due Process Clause specifically. But it is a major step forward in the literature. Few if any issues in constitutional law are more timely and relevant.

The Libertarian First Amendment, the Shifting Apostrophe, and the One-Way Ratchet

Jun 22, 2017 Enrique ArmijoAdd a Comment

In Expanding the Periphery and Threatening the Core, Morgan Weiland tells a story of how the First Amendment has slipped its moorings: how the Supreme Court, through its holdings in commercial speech and corporate campaign finance regulation cases, has decoupled the individual’s right to expression from the reasons for protecting that right; and how the libertarian turn in First Amendment theory, which devalues any interference with the flow of any information for any reason, has fused together protections for corporate and individual speech in a way that abandons First Amendment first principles. Weiland’s article also details the costs of First Amendment agnosticism—in a world where any regulation of speech affronts the informational rights of every listener, the State is powerless to distinguish between kinds of speakers or the quality of speech.

Weiland’s claim that First Amendment theory, properly oriented, should place primacy on listeners’ rights over the rights of speakers goes back to Justice White’s seminal line in 1967’s Red Lion that “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount,” as well as to Jerome Barron’s work around the same time, which called for government interventions in the speech market because of its First Amendment-derived obligation to promote the public’s “adequate opportunity for discussion” of issues of public concern.¹  Drawing upon the argument that expressive rights are functionally collective in nature, Weiland’s article makes an important contribution to First Amendment literature by detailing how far the modern Court has strayed from this baseline.

Though her article spends lots of time living in the lofty heights of free speech theory, Weiland cleverly boils down the change motivating First Amendment principle to a shift in the possessive. As noted above, in its Red Lion-era jurisprudence, the Court’s concern was with “listeners’ rights”—“listeners” being a stand-in for the public-at-large, with its concomitant interest in information as an instrument used for collectively constructed governance and society. Starting with its commercial speech cases in the 1970s, however, the Supreme Court’s discussions of the First Amendment’s theoretical underpinnings moved the apostrophe one letter to the left. Where before “listeners’ rights” in the speech context were previously conceived as an instrument for listeners to achieve collective self-determination, under the new libertarian tradition the “listener” is now a purely individualized conception where the right deserving of protection shields anything an individual listener might want to know from government interference. It’s thus the listener’s right to information, rather than listeners’ rights in the same, which drive First Amendment rules of decision.

Read this way, Weiland’s is a compelling story of how the smallest possible change in punctuation can sometimes flip meaning in the opposite direction. When reading the article, I was reminded of a similar story I once read about a misplaced comma in a King James Version of the Bible’s Luke 23:32. The passage, which details Jesus’ imminent crucifixion alongside two criminals, originally read “And there were also two other malefactors, led with him to be put to death,” instead of the intended “And there were also two other, malefactors, led with him to be put to death.” The mistake in the first version, by implying that Jesus had done evil (“malefactors” probably beginning as the Greek kaourgous, meaning “wrongdoer,” then as the Latin malefacere, meaning “to do evil,”), rendered the passage sacrilegious.

I have almost certainly just described a mistake. But the move from “listeners” to “listener’s” that Weiland describes was unmistakably intentional. The Court’s shift to individualize the listener whose rights merit constitutional protection permitted it to protect corporate speech rights in ways that its prior precedents did not permit. Advertising was now on equal footing with political speech.

After describing the shift, Weiland describes its effects. Weiland claims that the Court’s use of listener-based justifications for its decisions in the commercial speech and corporate campaign finance areas—in the case of the former, the Virginia State Board case’s conclusion that restrictions on pharmaceutical advertising infringed on individuals’ interest in receiving price information about drugs; and in the case of the latter, Citizens United’s claim that limiting corporations’ political expenditures deprived voters of relevant information about candidates—eroded the Court’s ability to distinguish between kinds of speakers, or to decide whether the First Amendment permitted positive government interventions in the speech market of the type found permissible in Red Lion.

If the First Amendment is agnostic as to kinds of speakers, the status of listeners, and types of speech, then any regulation of speech is of dubious constitutionality. Accordingly, the shift that Weiland describes was to assume without deciding (or really without the benefit of any reasoning) that providing more price information to an individual consumer, or ensuring that a corporation could spend its money to promote or denigrate the candidate of its choice, was no different for First Amendment purposes than ensuring the public’s access to information on and discussion of candidates or their policy proposals. It does the First Amendment no good, Weiland claims, to claim that the Speech Clause protects the rights of listeners without discussing who those listeners are or why the Clause entitles them to information in the first place.

In short, as Weiland convincingly argues, the Court’s claim that protecting any speech rights, whether corporate or individual, ineluctably leads to freer flows of information permits it to elide the balancing question that should be at the core of the First Amendment: whether asserting some speech rights in a particular context might in fact lead to interference with other information flows—which could lead in the end to greater harms to listeners’ interests in self-autonomy and self-governance. If less regulation of speech always and necessarily leads to more information, then cost-benefit analysis with respect to the speech-related effects of any given regulation is off the table. In other words, your $1,000,000 campaign expenditure cannot drown out the $100 that represents all I can afford to spend, because $1,000,100 (your speech plus mine) is greater than $100 (mine alone). Other scholars have made similar arguments, but Weiland’s analysis details better than most how the First Amendment got to this point.

Though I enjoyed every bit of this Article, I did have a very minor quibble with respect to the paper’s claims of novelty. Those of us who play the game know that novelty claims are the most tried-and-true strategy for getting our papers to the top of the law review editors’ stacks, and thus it’s no fault of Weiland’s for making them. Even so, it is a little too pat for Weiland to claim that her project “uncovers a new theoretical tradition.” (P. 1394.) As Weiland notes, claims of the Roberts Court’s First Amendment neo-Lochnerism is a cottage industry in Speech Clause scholarship; these papers are pointing out not just a doctrinal inconsistency, in the sense of the kinds of speech and speakers that the First Amendment should protect, but also a theoretical inconsistency, in the sense that the reasons that doctrine pushes decisions in those directions are at odds with the rationales for the First Amendment in the first place. The listener’s-rights-vs.-speaker’s-rights debate is the stuff of dozens of net neutrality FCC comments and amicus briefs, which Weiland, as an active advocate in that space, well knows. When Weiland argues that the free flow of information is a means and not an end, she has an unlikely ally: Chief Justice Rehnquist, who made the same argument, as well as the neo-Lochnerism charge, in commercial speech cases several decades ago. But this is more of a critique of the larger law review industrial complex and not of Weiland’s paper, which, to reiterate, makes an important contribution, and does so exceptionally well.

“More speech is better speech” is not just an adage anymore. It is the Supreme Court’s governing principle with respect to the theory underlying the First Amendment. Morgan Weiland’s article shows that this governing principle sometimes fails to take into account that “more speech” can come at major expense to the interests that underlay the First Amendment’s protections.

What Will the Federal Government’s Resistance to President Trump Look Like?

Apr 18, 2017 Paul HorwitzAdd a Comment

How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.”

One might apply some of the same questions to this very jot. The general custom at Jotwell is to talk about recent “things” we “like lots,” and usually only about one article one at a time. The rule extends to articles published in the past two years, but most jots focus on recent or forthcoming articles. Given my own perverse tendencies, many of my past jots have more or less followed Jotwell’s “rules,” while pushing their limits. (And they have talked about doing so, which may violate another Jotwell “rule,” one that applies to legal scholarship more generally: talk about the article or topic itself, not the process or motives behind it. A law review article that began “This Article is intended to advance the current causes of the Democratic Party,” or “This Article is meant to demonstrate my worthiness for promotion” would be refreshingly candid, and might suggest some interesting things about legal scholarship, but this sort of thing is just not done. An article that got even more “meta” about the nature or role of the article, in order to poke at legal scholarship more generally, would be just as suspect, and the letters complaining about it would invariably begin, “Dear Prof. Schlag.”) Here I talk about three “articles” falling within the time limit. But two are scholarly blog posts, and the third involves a bank-shot, because behind it lies that 2015 article by Bulman-Pozen and Pozen, now verging on being too “old”for Jotwell. And all three articles raise the question whether this jot belongs in the constitutional law section or under legal theory or administrative law.

I have done all this on the grounds that extraordinary times call for extraordinary measures. Is this jot a form of uncivil obedience, of civil disobedience, or of rebellion? Is it justified in the circumstances? Even if these are extraordinary times, are extraordinary measures called for here, in the context of a system and website that operates as usual?

Behind all this, obviously, is President Donald Trump: that extraordinary figure whose extraordinary actions have called forth—demanded, many would insist—extraordinary responses from citizens and scholars alike. Many of the most prominent responses to the new regime have come from citizens, albeit often fairly elite ones: marches, “days without [X],” lawsuits, and the usual collection of group letters, petitions, and op-eds. In that context, it is clearer that thinking about modes of response and resistance to this administration, including resistance within the executive branch, has a strong constitutional law component. (Anyway, as Adrian Vermeule recently observed, administrative law “is sublimated constitutional law just as constitutional law is sublimated theology.”)

Invoking Trump as a justification will no doubt win instant forgiveness for skirting or breaking various “rules,” both in the real world and in academia. As these thoughtful articles—two of them fortunately written before a sense of Trump-derived urgency began shaping and distorting public and academic discourse—demonstrate, however, it is unclear when, whether, and how such behavior should be treated forgivingly. Strategies of resistance shaped in response to exigent circumstances do not necessarily disappear when those circumstances do, and in the meantime they encourage retaliatory counter-strategies. And many citizens’—and academics’—passionate dislike of the administration may lead them to accentuate the positive aspects of these rule-breaking strategies while minimizing or ignoring the negative. This is thus simultaneously a good, bad, and necessary time to think both about both how resistance forms not only to but within the very organs of a constitutional regime, and about the potential dangers of those strategies.

Begin with Uncivil Obedience. Many acts of resistance to the Trump presidency have involved civil disobedience, although sometimes without the transparency and willingness to accept legal consequences that is often thought of as a hallmark of civil disobedience. For Bulman-Pozen and Pozen, “In important respects, uncivil obedience is the mirror image of civil disobedience . . . Instead of explicit law-breaking, it involves subversive law-following” (emphasis added), or “subversive legalism.” It can be a useful form of protest and resistance. It certainly demands recognition. But it demands not only applause, but also thoughtful, critical examination: “The basic dilemma that uncivil obedience poses for public law values . . . is no less substantial than the dilemma posed by civil disobedience. At the same time, uncivil obedience plays a distinct role within the operations of government that demands critical engagement on its own terms.”

The article provides several categories of uncivil obedience, some of which are particularly relevant for present purposes. One is “working to rule” by employees. Instead of striking, they engage in “hyperbolic compliance with authoritative demands,” doing “exactly what they are told to do,” in a “rigid” manner that slows the usual pace of operations and makes normal functioning and the achievement of the employer’s purposes less likely. Among the employees who may work to rule or observe compliant but “slow-walking” tactics are civil servants. Another example also involves government: minority obstructionism within the Senate, in which rigid insistence on, and use of, every available legal tactic—quorum calls, filibusters, requiring that lengthy bills be read aloud from beginning to end, and so on—“def[ies] longstanding conventions” while “emphasiz[ing] the formal legality of the[ ] obstructionism.” A third is federalism, “the most fecund source of legislative uncivil obedience” in the United States. In addition to simple resistance to federal law, states may “adopt measures that trumpet their technical consistency with federal law while at a deeper level subverting it.” Finally, and perhaps less relevant for our purposes, there is “full enforcement,” the strict enforcement of laws that are generally enforced reasonably (or unreasonably and selectively), as a way of “upending rather than perfecting the existing sociolegal order.” Enforcing every petty traffic offense, against rich and poor alike, might serve to raise questions about the customary unequal application of those laws, or create powerful new constituencies of opponents so as to undermine them altogether. The authors quote President Grant: “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”

Remember that the definition of uncivil obedience includes several factors that help it correspond to civil disobedience. In particular, uncivil obedience is said to require that the action “communicate[ ] criticism of a law or policy,” that it have “the significant [reformist] purpose of changing or disrupting that law or policy,” and that it do so “in a manner that calls attention to its own formal legality,” suggesting some degree of openness. Some acts of uncivil obedience, such as an organized and announced “work to rule” program, may meet those criteria. Others may not. When a Senate minority—Republican for some of the last administration, Democratic currently—uses all its tools to stymie the majority and prevent the administration from turning its policies into enacted law, it is often vocal about it, but is it reformist or protest-oriented? Certainly it is not reformist as to those rules itself: whether it thinks (or thought, until recently) the filibuster is unjust or not, it is happy to use it. It is not using “procedural privileges in novel ways to challenge those privileges themselves.” And is a covert “work to rule” practice really a communicative act of uncivil obedience?

Bulman-Pozen and Pozen call such examples “indirect uncivil obedience,” and make clear that the line between direct and indirect is “blurry.” To me, such an extension of the basic idea tends to demonstrate the dangers of over-extending the labeling and description of a phenomenon. There is no doubt that Uncivil Obedience performs a useful function, one that is increasingly popular, even trendy, in the legal literature: that of identifying and taxonomizing a common but frequently under-remarked social, legal, and/or political phenomenon with important implications for law. But identifiers and taxonomizers of such phenomena should be wary of bringing too much under their umbrella. It can be useful to identify an important phenomenon, but counter-productive to insist too much on its universality or breadth of application, especially by introducing “variants” that raise questions about whether they fit within the definition—or raise questions about the definition itself, and perhaps, by extension, the whole phenomenon.

Thus, in his article Civil Dissent by Obedience and Disobedience, Daniel Correa critiques several aspects of Bulman-Pozen and Pozen’s project, and ultimately asks whether the whole concept should be “considered a non-starter for any serious normative assessment.” He does so in part by focusing on custom. Working to rule achieves its power because it ignores the basic function of the workplace: to work, to actually function properly. Driving no faster than the speed limit, although the custom is to drive at or somewhat above the speed limit, similarly makes reasonable coordination and use of the roads difficult or impossible, at least as long as the custom of driving slightly over the speed limit is widespread, coordinated, and generally respected by law enforcement. Doing so is only “provocative” if there is “some competing norm vying for obedience.” To Correa, this means that it is ultimately really disobedience—to the norm on the ground, if not the law on the books—that is doing the work here. He concludes that “the label ‘uncivil obedience’ should be discarded and the phenomenon the label purports to describe investigated as a form of civil disobedience.” (A similar point is made in a thoughtful response to Bulman-Pozen and Pozen by Daniel Markovits. Despite praising the article, he argues that “the practices that BP&P identify as uncivil obedience on closer inspection overwhelmingly remain perfectly civil after all, at least insofar as they really do involve law-following. These practices become uncivil only when and because they turn out, on closer inspection, to involve disobedience.” The phenomenon, on this view, is less clear and apparent than the authors suggest, although the article is still useful insofar as it “reveals a deep structural instability in the normative order at which the protest takes aim.”)

Correa argues also that the uncivil obedience label is particularly “troublesome” when its authors try to “squeeze” it “into lawmaking practices.” Doing so distracts from “what really appears to be at issue: best lawmaking practices in a democratic society and political accountability.” Some members of a Senate minority engaging in legal obstruction may have uncivil obedience in mind, or say they do. But some of those are merely engaged in “political posturing,” and the rest are just doing party and institutional politics. Attaching a fancy global label to this conduct “creates a real risk [of] sleight of hand political maneuvering.”

One of the great virtues of Uncivil Obedience and its responses is that they came before the rise of Trump and the change in political regimes. They thus identified a potentially useful phenomenon before the felt necessities of the time[s]” could affect and perhaps distort their analysis. But this work has taken on a new level of importance in the current moment. That is certainly true for those who deplore Trump and are determined to resist him, but it is also true for those who are at least ambivalent about him, not to mention the few who simply want to identify and analyze the current moment as scholars or observers.

Before the election, while many focused worriedly on what Trump might do to the civil service, some writers, such as Eric Posner (and, less impressively, myself), began asking how civil servants might respond to a Trump administration that would be, in an important sense, their own administration. It hardly took a crystal ball to ask this question, but it was asked surprisingly rarely—maybe because many in the professional-managerial class still thought his election impossible, or perhaps because they were driven by strong emotion rather than analytical calm.

Whether the executive bureaucracy, inside and outside of cabinet departments and other agencies, comprises a “fourth branch” of government or not, it clearly has many tools at its disposal to respond to and resist the head of the executive branch within which it sits. Since the election, both before and after the transfer of power itself, we have in fact seen variety of forms of resistance on the part of the civil service. President Truman famously observed of incoming President Eisenhower, “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.” And in a recent piece on the civil service, Professor Daniel Hemel quotes, via Chief Justice Roberts, President Kennedy saying to a constituent, “I agree with you, but I don’t know if the government will.” We are now witnessing that phenomenon on steroids. The executive branch and the substantial civil service attached to it is definitely not The Apprentice. It barely resembles even the standard organizational chart one might remember from a class on separation of powers.

Jennifer Nou, a regulatory expert at the University of Chicago, has been remarking perceptively on this possibility both before and after the inauguration, in a pair (I hope they will become a series) of posts at the blog of the Yale Journal of Regluation. Even before the inauguration, Nou offered “a catalogue of tactics that civil servants have historically used to defy their superiors, both covertly and overtly.” They include slowdowns, using the agency process to build records that “will make it more difficult for the administrator to reverse [a] decision in good-faith,” cooperation with Inspectors General, lawsuits, resignations, and leaks. To this we might add, perhaps as a species of uncivil obedience, former Acting Attorney General Sally Yates’s refusal to enforce the initial administration executive order on travel, on the grounds that the refusal was “informed by my best view of what the law is after consideration of all the facts.” (Given that she served at the pleasure of the president, we might also think of this as a form of implicit noisy withdrawal.) Post-inauguration, Nou argues that the level of bureaucratic resistance to the Trump administration seems “unprecedented” in its “open defiance” of the President. She notes that this defiance invites “the inevitable crackdown from above,” and catalogues some forms the crackdown might take, such as reductions in force, prosecutions of leakers, and simply cutting the bureaucracy out of the consultation and decision-making loop.

But much of this can be difficult to accomplish, or have negative consequences for the administration itself. Tenure protections for civil servants constitute one of the most obvious barriers to executive-branch crackdowns. But other methods will create more interesting separation-of-powers dynamics and consequences. The clumsiness of the initial executive order on travel resulted in large measure from the loop-cutting method adopted by the West Wing. That in turn gave courts ample ammunition to be highly skeptical of the order, both because of its poor drafting and because it made it more difficult for the administration to point to the kinds of information-building and consultative methods that might justify judicial deference to the executive branch. By ensuring that no one in the bureaucratic ranks could hamstring the executive order, the White House in the end gave the judicial branch a leg up in doing just that. In short, “civil servants have a lot of artillery with which to lead yet another round of counter-attacks.”

Nou’s commentaries raise at least two important questions. First, how much of the civil service resistance to Trump can be characterized as “uncivil obedience,” of the kind described by Bulman-Pozen and Pozen, and how much of it is closer to civil disobedience or outright rebellion? Some of this conduct may be usefully illuminated by Bulman-Posen and Pozen’s taxonomy. We can expect civil servants in this administration to insist rigidly on formal procedures that limit executive branch energy and action, to obey every jot and tittle of the “law” and rely on every protection and limit afforded them, to clock out at 5 when they might have burned the midnight oil in the service of a president or agenda they favored. We might see them interpreting and enforcing new rules advanced in a top-down form from the White House so rigidly as to heighten their absurdity and injustice and expand the range of affected constituencies who might complain. While we certainly will see open defiance of the administration by Democratic-governed states, not least for reasons of electoral politics, we might also see them using existing federal law to convert “cooperative federalism” into a means of resistance.

But some of these forms of resistance raise the questions of uncivil obedience presented by Correa (and Markovits). If the civil service tirelessly exploits the gap between formal rules and the actual norms that normally drive agency employee action—including the basic principle that the civil service is a part of the executive branch and exists to effectuate its policies—then much of its work will be driven by disobedience, not obedience. Other forms of resistance—leaking, in particular, but also the purported creation of “shadow” agency Twitter sites and other anonymous means of ignoring the org chart and communicating directly to the public—have nothing to do with “strict conformity with . . . positive law,” and are best characterized either as civil disobedience or, more accurately, resistance and rebellion, since they do not involve the transparency or willingness to accept the consequences of one’s disobedience that typify classical civil disobedience.

And some conduct may look like uncivil obedience at first, but is likely better seen as covert resistance and rebellion. The political journalist T.A. Frank, for instance, observes that efforts in the waning days of the Obama administration to collect and preserve intelligence concerning potential Russian hacking around the presidential election included, as The New York Times puts it, “keep[ing] the reports at a relatively low classification level to ensure as wide a readership as possible across the government.” This action is defended by the paper’s anonymous sources as an attempt to make sure the evidence was not buried or destroyed. But, as Frank quite rightly notes, it also inevitably “ensures the leaks keep coming and that the list of suspects remains infinite.” (The Times, which relies heavily these days on anonymous sources, failed to mention this obvious possibility. Perhaps the sources insisted on this as a condition of the leaks. At the least, the omission points to the dangers of self-serving accounts by leakers.) It is hard to describe this conduct as either uncivil obedience or civil disobedience.

The second question is what risks as well as rewards are involved in these varied forms of intra-branch resistance. Many have and will continue to applaud the bureaucracy’s resistance to its own administration. It will blunt the edge of the administration’s work and energy and in some cases may defeat its plans outright. As the example of the executive order on travel suggests, in other cases the resistance will hand ammunition to other branches of government, such as the judiciary. That will either allow judicial overrule of administrative actions, or require the administration to soften its policies, go through proper processes, and bring the bureaucracy back into the loop if it wants to succeed at all. In short, it will force the partial domestication of the administration.

But Nou writes that “[t]here are thorny legal and moral questions” involved in these forms of resistance. The potential costs of resistance, including dismissal, prosecution, and retaliatory reduction of the administrative state, “may help ensure that what resistance remains is more often evidence of a canary in a coal mine than a bureaucracy run amok.” But the more stringent, successful, and covert the resistance is and remains, the greater the risk that “ultimately the loser here is the administrative state itself,” and that “the institution of the presidency” will be “weakened in the long term.” If a casualty of the resistance to Trump—however justified or necessary that resistance may be—is “the civil service’s professional ethos and respect for democratically-elected superiors,” then the consequences are likely to last well beyond this administration.

The benefits of governmental resistance to the government—to this government, anyway—might be well worth the costs. And it is possible that the most dangerous tools will be put back on the shelf once Trump’s tenure in office is over, or once (or, rather, if) he is tamed, more or less. (That depends in part, however, on whether the “resistance’s” goal is to domesticate Trump’s presidency—or to end it. What the resistance’s goal is and whether there is any consensus on it is an open question; and the judiciary’s willingness to reject deference and restrain the president even after he had issued an executive order that purported to follow more of the usual organizational norms suggests that for at least some individuals, mere domestication is not the real goal.) Nou’s examples are historical as well as speculative, after all, and Bulman-Pozen and Pozen likewise drew on existing practice in describing “uncivil obedience.” Despite these historical examples of resistance, the Republic still stands. It is thus possible that these examples, and current civil service resistance practices, either are not cause for undue alarm or are necessary in the circumstances. On a somewhat different note, neither positive nor negative as such, perhaps they are an extreme example of “nothing new to see here”—of a civil service that has long been as much its own creature as a creature of the executive branch, and that reveals the complexities of intra-branch rather than inter-branch aspects of the constitutional separation of powers.

Whatever the case, these resistance practices demand wide-ranging academic analysis, of a sort that neither ignores nor is driven solely by present exigencies. Whatever havoc it may wreak with Jotwell’s usual customs, we should be grateful that the study (and critique) of uncivil obedience came along when it did—“BT,” as it were—and that Nou continues the job in a calm fashion “AT.” We need much more of this.

A Compassion for the Law

Feb 24, 2017 Mark KendeAdd a Comment

U.S. Supreme Court Justice Sonia Sotomayor faced a roadblock to confirmation because she had once said in a speech, “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” The statement was read by supporters in concert with President Obama’s well-known view that empathy is an important requirement for judges. Her opponents put a different spin on the statement, arguing that this kind of view meant she would be biased in interpreting the law.

Professor Susan Bandes’s fascinating article, Compassion and the Rule of Law, deals well with a closely related topic. Her examples are drawn mostly from constitutional law, but the analysis has broader implications. (Bandes has authored prominent books and articles on the role of passion and emotions in the law.)

Bandes’s initial premise is that the “rule of law” should prevent arbitrary decision-making based on unpredictable emotions. Compassion is problematic—if it incorrectly distorts substantive legal rulings. But she says it can also serve a different purpose. Compassion’s “most important contribution, is as a way of understanding what is at stake for others. Or to put it another way, seeing the rights of others from the inside; as they experience them.” (P. 3.)

She acknowledges that empathy is a similar concept, that scholars disagree on the meaning of these concepts, and that these meanings have evolved over time. Nonetheless, she argues that the core of empathy is just placing oneself in another’s situation. Empathy has a large cognitive component. By contrast, “Compassion is ‘the feeling that arises in witnessing another’s suffering and that motivates a subsequent desire to help.” (P. 5.) Bandes elaborates that compassion entails the “call to action that is not an inherent component to empathy.” (P. 5.) Perhaps that is why we say that a person “shows” compassion but “is” empathetic. Bandes further references Martha Nussbaum’s reliance on Aristotle for the proposition that a judge’s compassion should be based to some extent on the view that the “litigant is not at fault.” (P. 5.)

She then discusses several constitutional decisions where compassion was relevant. Her analysis of DeShaney v. Winnebago County Department of Social Services is especially prominent. She also discusses Brown v. Board of Education and Safford Unified School District v. Redding. In Safford, a Fourth Amendment decision, she shows that Justice Ruth Bader Ginsburg helped her colleagues on the Court see how humiliating it would feel for a teenage girl to be strip searched. She also discusses compassion in the context of draconian federal sentencing rules, as well as the pardon power.

In DeShaney, the Court ruled formalistically that Wisconsin Social Services could not be liable for a father beating his young son, Joshua, into a coma as it was the father’s fault. Though the agency had intervened previously, and even briefly removed Joshua, the Court said the agency had no constitutional duty to protect, even if this exists in some foreign countries. She then argued that though Justice Blackmun’s famous reference in his dissent to “Poor Joshua!” is emotional and compassionate, Justice Brennan’s dissent is actually more powerful. The Brennan dissent more clearly shows how the Department’s prior involvement with the father and son placed a traditional legal duty on the agency not to be grossly negligent or reckless. Blackmun’s compassion alone, she argues, cannot be central to who should win, because it is not a sufficient, or sufficiently powerful, legal reason. And Bandes points out that the facts of the DeShaney case did not pull on the heartstrings of the dissenting justices alone. Chief Justice Rehnquist’s majority opinion showed a compassionate attitude in parts, even though the Court ruled against Joshua’s mother.

Bandes is particularly good in focusing on the nuances and difficulties that may not always be evident from a simplistic treatment of compassion, let alone its relationship to law. She points out that any reliance on compassion by a judge must look at both sides of the case. She also makes the important point that nobody can look into a judge’s heart, and that all judges have “blind spots and prejudices” that may not be apparent. (P. 19.) She adds that compassion can actually be based on inaccurate understandings (P. 19), though the same can be said for the rule of law (which itself has multiple possible meanings). She argues that Gonzales v. Carhart is a case where Justice Kennedy mistakenly assumed he was being compassionate or empathetic in asserting, without solid evidence, that women may frequently later regret abortions. She calls for judicial humility, openness, caution, and an awareness of what litigants need. (P. 21.)

She concludes by giving a fascinating example of Judge Kozinski from the U.S. Court of Appeals for the Ninth Circuit. Kozinski was examining a case that unexpectedly hit him like a brick when he realized the criminal defendant had made a poor life decision, but that he too had made a huge mistake just one week earlier putting his toddler at risk. Bandes says what makes this powerful is Judge Kozinski’s self-awareness.

This is an insightful article and a continuation of Professor Bandes’ excellent exploration of the aspects of legal decision-making that don’t fit into the easy categories of reason or logic. It leaves some open questions, but that adds to its impact.

At a recent federal sentencing forum at Drake Law School, one of the federal judges announced that he used the “least restrictive alternative” when imposing a sentence. This is very different from those judge who talk tough about law and order. I took his point to mean that judges should try to put themselves into the situation of the accused or guilty person, as well as others such as their family, rather than treat the matter with blunt indifference to the humanity involved. In my view, Bandes has made a persuasive case that a legal system made up of judges with compassion would certainly be good for society and for the rule of law. As Martha Nussbaum has said, compassion is “crucial for motivating and sustaining altruistic action and egalitarian institutions…” in a way that no other emotion can really match.

Getting to Grips with Discrimination

Jan 31, 2017 Aziz HuqAdd a Comment

Since the mid-1970s, the Supreme Court has insisted with increasing fervor upon an anticlassification norm as the central principle of Equal Protection law. In the past decade, alternative legal solutions to inequality have emerged as competitors with the anticlassification norm. In 2009, the late Justice Scalia observed, in his concurrence in Ricci v. DeStefano, that the disparate impact theory of liability available under Title VII of the 1964 Civil Rights Act required employers to categorize by race. Given the priority of colorblindness, Justice Scalia observed, it might therefore fall afoul of the Equal Protection Clause. Two basic instruments for racial equality—both a part of the federal statutory law of antidiscrimination for a half century—suddenly seemed in collision course. This conflict is at the heart of Deborah Hellman’s excellent new article.

The conflict between anticlassification and disparate impact has receded more recently. In a June 2015 decision interpreting the Fair Housing Act, Justice Kennedy brokered an uneasy truce. Yet the pressing and fundamental theoretical question raised by Justice Scalia’s Ricci concurrence has not dissipated: How is it that anticlassification and disparate impact can both purport to mitigate racial discrimination, and yet conflict? Is the disagreement a divergence of tactics—a question of whether one thinks one can get beyond race without accounting for race? Is it the result of a divide between ideal and nonideal theory? Or does it represent a more profound divide over the nature and substance of equality?

That the superficially simple idea of equality admits of multiple accounts is nothing terribly new. In 1981, Douglas Rae and his coauthors wrote in Equalities that “[w]e are always confronted with more than one practical meaning for equality and equality itself cannot provide a basis for choosing among them.” Rae’s solution was to articulate a “grammar of equality,” one that implicitly rejected Peter Westen’s influential claim in the Harvard Law Review year that equality was an “empty form” with “no substantive content of its own.”

Unfortunately, Rae’s sophisticated and comprehensive taxonomy has not caught on in the legal literature. It is cited a measly 89 times in the Westlaw Journals database. The result is that a great deal of legal analysis assumes that the idea of equality is self-evident, or capable of specification through some mechanical textual or historical inquiry—and thus courts incoherence or question-begging circularity.

Few legal scholars are as well positioned to step into the resulting breach as Deborah Hellman. Author of a deservedly well-regarded book on the nature of discrimination, Hellman is the unusual legal scholar who brings a philosopher’s conceptual rigor to a range of doctrinal problems. These run from whether the First Amendment should protect campaign spending to the constitutional definition of “corruption.” Her work is always careful, novel, and worth reading.

Hellman’s new article offers a new taxonomy of “discrimination” as a legal term of art pursuant to the Equal Protection Clause. Her classificatory ambition prescinds from the overt normative ambition of her earlier normative work on discrimination. The article, in other words, is not a defense of an extant theoretical position. Rather, it offers a cartography of the conceptual landscape of constitutional equality law more generally.

Its central premise is that Fourteenth Amendment equality jurisprudence has articulated two basic theories of discrimination. They do not track the standard distinction between discriminatory treatment and disparate impact. Rather, Hellman posits that judges and justices have relied upon either a comparative or a noncomparative (or independent) conception of discrimination. Not as comprehensive as Rae’s taxonomy, Hellman’s binary aims nonetheless to encompass the whole range of options observed in the Court’s constitutional equality case law.

The basic intuition that a normative standard can either be comparative or noncomparative is nicely conveyed by a (painfully) familiar example with which Hellman starts: grading. Marks for students in a class can either be assigned based on a preexisting curve, or professors can grade each student based on some ‘objective’ standard, regardless of how other students perform.

The comparative concept of equality sets the treatment one person has received against the treatment another person has received. A violation of equality does not require a difference in treatment. If a guilty and an innocent person are alike jailed, equality is not honored. Hence, the comparative concept of equality requires a further substantive judgment as to what it means to treat persons as equals. Hellman identifies a number of ways in which this substantive judgment might be cashed out: for example, treating some with animus, failing to represent some, or denigrating some but not others. Equal Protection doctrine’s tiers of scrutiny, on this view, operate as a heuristic to winnow out those instances in which the state has likely failed to treat people as equals.

At first blush, a noncomparative (or independent) concept of equality seems incoherent. If there’s no comparative element, how can we say a given treatment is unequal? In fact, the currently regnant anticlassification account of Equal Protection law demands no comparison. It simply asks if race has acted as a criterion in a decision applied to a person, regardless of whether someone else was handled without accounting for race. Lest this make it seem that the comparative/independent line tracks liberal/conservative battle lines, notice that the skepticism applied to stereotype-based rules in gender-oriented equal protection law is also a noncomparative rule. Noncomparative conceptions of equality can also be understood as discarding comparison in favor of close consideration of the substance of governmental decision-making for impermissible factors.

Although Hellman pursues a number of doctrinal payoffs from this conceptual mapping, her analysis of whether rules intended to reduce racial disparities (e.g., under Title VII) should be treated as invalid is the most interesting. She contends that the Ricci concurrence logic blends distinct elements of comparative and noncompartive approaches. From the latter, it takes a concern with intent; from the former, it takes a worry about racial classification. Hellman insists that this kind of blending of moral theories is incoherent.

One question that remains open at the end of her analysis is whether the opponents of disparate impact can redeem their critique. Might they contend, for example, along with Justice Thomas, that any use of race in government decision-making “demeans us all” regardless of the intention behind it? (To be sure, I should concede that Justice Thomas does not take his own logic to be categorical. In a dissenting opinion in Johnson v. California, he took the position that racial categories could be freely used in the carceral context. (It is somewhat ironic that it is precisely in this realm that the invidious deployment of race is arguably the most worrisome, and even the most frequent). Could a moral or legal case for race-blindness be made without respect to background motives and beliefs? And how would that case reckon with the manifest ways in which racial identity shapes the life course and economic opportunities of individual citizens and the citizenry as a whole, to say nothing of how it pinches and channels our national political discourse? And how might it be squared with the text, history, and precedent of the Fourteenth Amendment? The argument about colorblindness, I rather suspect, will not go away any time soon.

By zooming out and surveying the conceptual landscape of Equal Protection jurisprudence from a new vantage point, Hellman allows for the identification of new parallels between unfamiliar doctrines (colorblindness and the ban on sex stereotypes), and makes it possible to transcend and overcome the older, ideologically oriented, calcified positions that are so familiarly at war in Equal Protection doctrine. Her analysis will be of great interest to students of Equal Protection who are not still mired in their deep-dug trenches, fighting the forever war of racial reconstructions and their inevitable redemptions.