Federalism

Videos of Panels on Sanctuary Cities and Constitutional Property Rights

I took part in panels on these topics at the recent Federalist Society National Lawyers Convention

|The Volokh Conspiracy |

Volokh Conspiracy readers may be interested to see videos of two panels I participated in at this year's recently concluded Federalist Society National Lawyers Convention: "The Wisdom and Legality of Sanctuary Cities" and "Originalism and Constitutional Property Rights."

In the sanctuary cities panel, I crossed swords with former Attorney General Jeff Sessions, among others, and explained why the Trump administration's attacks on sanctuary cities violate constitutional limits on federal power, and have—fortunately—led to a long series of defeats in court, at the hands of both liberal and conservative judges. I also described why sanctuary jurisdictions have good policy and moral reasons for refusing to cooperate with some aspects of federal immigration enforcement, including the fact that involving local police in immigration enforcement undercuts ordinary law enforcement. Sanctuary jurisdictions are also justified in rejecting cooperation with federal deportation efforts, given the horrific abuses in its immigration detention facilities, and the government's history of wrongfully detaining and deporting even US citizens.

At the property rights panel, I discussed and debated the original meaning of constitutional protections for property rights with distinguished takings scholars Tom Merrill (Columbia), Richard Lazarus (Harvard), and my George Mason University colleague Eric Claeys.  I argued that the original meaning of the Takings Clause requires judicial enforcement of tight limits on government power to take property for "public use," a concept which should be given a narrow construction encompassing only publicly owned projects, while excluding most condemnations that transfer property to private parties. My talk was in large part based on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

On the property rights panel, I advocated what might be seen as a right-wing position (defending strong constitutional protection for property rights). On the sanctuary cities panel, I defended what is usually considered a  "left-wing" perspective on sanctuary cities. But, despite the seeming contradiction, I think there is actually an underlying coherence between the two positions: both advocate strong judicial enforcement of constitutional limits on government power, and both protect poor and vulnerable populations against the sometimes overwhelming power of the state.

Of course this year's Federalist Society Convention will probably be best remembered for Attorney General William Barr's seriously flawed speech extolling an extraordinarily broad theory of executive power. Among other things, he ignores the many ways in which executive power has grown far beyond the Founders' design and argues for near-total judicial (and often also congressional) deference to the president on anything involving "foreign relations" and "exigent circumstances." This is a misreading of the Constitution, and such deference has historically led to grave abuses of power. If time permits, I may have more to say on Barr's speech later.

NEXT: "Bad Writing Does Not Normally Warrant Sanctions, but We Draw the Line at Gibberish"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The county where I live just declared itself a 2nd amendment sanctuary. Some people who support sanctuary cities with different purposes, will oppose this. We seem to be in an era where legality is determined by motives, or what we imagine to be motives. Even SCOTUS arguments focus on the reason for actions to determine their legality.

    So professor, what is the limiting principle for sanctuaries? Will you defend sanctuaries where you think the moral basis is wrong?

    1. I think it’s statutory, right? If the Federal government wants to preempt state governments in the area of immigration enforcement or gun control, it just needs to make an explicit declaration.

      Still no comandeering, but that’s for every law.

      1. This. There is no reason Congress can’t tie withholding of funding, as long as it is resonably tied to the program being funding. Which is a giant hole, thanks to the very left itself in decades past.

        The political fight would still stall it, just as it is stalling direct wall funding, but that’s prosaic politics. Win more elections so you can override your opponents.

        1. And if you don’t win, just get an unelected activist judge to do your dirty work for you.

          1. Exactly, for instance Judge Reed O’Connor striking down the ACA.

            1. Did O’Connor issue a nationwide injunction against HHS administering the ACA?

        2. Unless withholding the funds is coercive, see Dole. ¯\_(ツ)_/¯

  2. Short version of Barr:
    “I used to have integrity. And a reputation. Now I’m a whore. A total whore. I still have a reputation, albeit a different sort of reputation.”

    1. Longer version of Volokh Conspiracy on Barr:

      ‘No way we’re touching this one. It’s just like with Trump. The last train carrying right-wing judicial nominations for a long time seems about ready to pull from the station, and some of us need to fit in on strong mainstream campuses despite our relationships with stale and intolerant positions, so we express our “often libertarian, always independent” conservative courage in these circumstances with nothing but studied silence.’

      (‘Somin? That guy. Always takes that “libertarian” line much too seriously. Let’s just hope he doesn’t go too hard on Trump, Barr, Pompeo, Giuliani, Stone . . . ‘)

    2. Barr:

      conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means.

      Wow. Now there is a steaming pile.

      It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

      Wasn’t it McConnell who said that if Clinton was elected she would not be able to get any SCOTUS nominee conformed so long as the GOP held the Senate? I’m sure Barr was quite upset by that.

      1. Republicans impeached Clinton for a process crime.

        Now it’s no big deal, if not outright immoral.

        1. Just ask Ken Starr, leader of Rape U., mouthpiece of Jeffrey Epstein, 180-degree gymnast on impeachment, and longstanding darling of “family values” and “traditional values” Republican voters.

      2. Conservatives don’t play dirty the way liberals do.

        1. Especially not if race-targeting voter suppression is seen as a worthy endeavor.

          1. Even if you accept what you say is true, they’re not being targeted because of their race. They’re being targeted because 95% of them vote for the Democrat Party. No one would target them if they didn’t vote for the traitors.

            1. Democrats gerrymander just as much as Republicans. Only when the Republicans do it, Democrats get their hack judges to shut it down.

  3. While I agree with you that Barr goes a bit overboard in favor of executive power, (Though he’s scarcely outside the mainstream in that.) he absolutely nailed this:

    Importantly, however, the President coupled that rescission with negotiations over legislation that would create a lawful and better alternative as part of a broader immigration compromise. In the middle of those negotiations — indeed, on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress — a district judge in the Northern District of California enjoined the rescission of DACA nationwide. Unsurprisingly, the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through judicial means. A humanitarian crisis at the southern border ensued. And just this week, the Supreme Court finally heard argument on the legality of the DACA rescission. The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful. That is not how our democratic system is supposed to work.

    Indeed, it isn’t. The judiciary, too, are capable of overreaching. Even when you like the result.

    1. Disagreeing with a Supreme Court case is awesome and good? That was the height of rogue Presidenting when Obama did it with CU.

      1. We’ve already gone over this. When the decisions are made in bad faith, it’s not a matter of “disagreeing.”

        1. Fascists are very sure of their own righteousness: film at 11.

          If you think that disagreeing with the Court is noble when your side does it but bad when others do it, your being a partisan hypocrite.

          I hope Volokh puts up a dedicated thread on Barr’s speech. It really shows the post-Trump degradation of the GOP intellectual elite alongside their elected officials. I don’t know how conservativism can recover from this level of pure reactionaryism.

          Calling the main opposing party illegitimate had no place in a democracy.

          1. Are you a simpleton?

            He explicitly said when decisions are made in bad faith, not the act of disagreeing itself.

            1. Yet there are those on the right, even commenters here, who almost invariably describe any disagreement as being in bad faith – part of a large conspiracy against Truth and Justice and Liberty.

          2. “Calling the main opposing party illegitimate had no place in a democracy.”

            Mirror mirror on the Border Wall, who is the most projectionist filth of them all?

            1. So I take it you didn’t actually read the Barr speech. Bad faith is the least of his objections.

              I don’t think conservativism is illegitimate. From your other comments, you seem to think liberalism is, though. I’d be happy to be disabused of this notion if it isn’t true.

              1. “So I take it you didn’t actually read the Barr speech. Bad faith is the least of his objections.”

                My comment was in reference to the immediate discussion not some discussion you’re having in your head.

                “I don’t think conservativism is illegitimate. From your other comments, you seem to think liberalism is, though. I’d be happy to be disabused of this notion if it isn’t true.”

                I’ve observed the widespread and mainstream efforts by the Left to undermine the legitimacy of President Bush, SCOTUS, and President Trump with my very own eyes.

                What have you observed regarding those?

                1. Read better – Brett’s post was about Barr’s speech.

                  Anyhow, if you’re agreeing with WesternHegemony, you just think that cases you don’t like are made in bad faith. Luckily I addressed that as well.
                  See my ‘fascists are sure they’re righteous’ comment above, and my ‘partisan hypocrite’ bit as well.

                  1. Again, you show your lack of reading comprehension skills.

                    Let me repeat:

                    He explicitly said when decisions are made in bad faith, not the act of disagreeing itself.

                    1. If you read this blog for even a moment, you realize that RestoreWesternHegemony thinks all liberal court decisions are made in bad faith.

                      But back to my original question – ignoring current fights over procedure, do you think liberalism is a legitimate philosophy?
                      Barr does not seem to.

                    2. No, not all. But quite a few.

                    3. And how do you determine which are in bad faith, RWH?

                      I’d wager it’s closely related to how much you’re so sure of your own interpretation that you can’t countenance anyone disagreeing with you.

                    4. I shall not today attempt further to define the kinds of rulings I understand to be embraced within that shorthand description “bad faith,” and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.

                2. Undermine does not mean delegitimize.

                  1. Unfortunately for your great rebuttal, they’ve done and do both.

                    1. The former is how our system is designed.

                      Give examples of the latter.

                      Barr’s speech is a great example of that on the other side. So is your usual red-baiting.

              2. His objection here is that a guy got elected President, largely on a platform of reversing a discretionary and arguably illegal policy of the prior administration, and the court challenge objecting to his doing that looks to last his entire term in office.

                Effectively rendering the election moot.

                If the judiciary is going to be putting halts on policy of the elected branches, it’s going to have to radically speed up how fast it reviews them, so that the litigation doesn’t become dictating policy.

                1. That’s bit an uncommon thing. That’s how courts are designed in America – another veto gap alongside the actual veto, the bicameral legislature, the committee system, the filibuster…
                  It’s one of the most libertarian aspects of the American system.
                  It sucks. Doesn’t mean it’s illegitimate or in bad faith just because you disagree.

                  See also nuclear power plant construction.

                  1. Sorry – it can suck. Even for an incrementalist such as myself.
                    I’m not sure it’s the right way to do things, but it is how we do things. Claiming it’s new illegitimate liberal tactic is wrong.

                    1. The only thing new about it is the frequency. It’s gotten dramatically more common.

                    2. Even if that’s true – I have no idea, since presentism is a thing – what Barr is saying and what you endorsed is far more than what you just said.

          3. “The pot is black!”, said the fasci– kettle.

            1. Tu qoque is all you got.

              Barr’s speech is right out there in all it’s glory, and you point elsewhere.

              A telling indictment. Reactionaryism is all you got.

              1. Sam’s in on the game as well.

                Sarc: “Do you think liberals are not legitimate”
                Sam “I’ll bet lots of Dems think the border wall is illegitimate!”

                Never answered the question. I wonder why. Also changed the subject from an illegitimate party to a bad and immoral policy.

      2. Disagreeing with which Supreme court case, Sarcastro? The Court has only just heard arguments, and seems likely to rule favorably to Trump; The complaint here is about how a judge can enjoin a President’s policy in an instant, relatively speaking, and then it can take years to finally get the Supreme court to give the go ahead.

        Years during which it isn’t the elected President calling the shots, but instead a judge.

        This isn’t treating the Executive and the Judiciary are co-equal branches, it’s flat out judicial supremacy.

        What we need are,

        1. Some sort of accelerated review so that a single judge can’t effectively dictate policy for years on end just due to the case being dragged out.

        and,

        2. A very strong presumption against injunctions against changes in discretionary policy.

        Congress can give the Supreme court directed jurisdiction over specified sorts of cases, so this could be done by legislation. Not, however, legislation that’s likely so long as the courts are effectively imposing the policy of a party that holds one of the chambers of Congress.

        1. You got me. To revise:
          disagreeing with lower court cases to the point of arguing they’re made in bad faith is okay,
          but disagreeing with the upshot of a Supreme Court case, and not implying bad faith is an unconscionable attack on separation of powers.

          If given a choice between holding the Court or holding the Presidency, you’d really choose to hold the Court? Sure it’s decisions are final, but they are few and slow and far between.

          I’d be okay with some kind of procedural limitation on national injunctions. But in the end someone has to be the final decider, and I’d rather it be the less political judiciary than the explicitly political President. And yes, I thought so when Obama was President as well.

          Look at the headlines; the policies; the direction of government. Can you not see how the Presidency is a lot more powerful than the Supreme Court?

          But my larger point was not addressed by your comment – when the judicial power looks illegitimate to you looks mighty partisan.

          1. Sarcastro, the judiciary are supposed to be less political, but from the moment it was realized that they could be used to impose political ends in a relatively difficult to block or overcome way, that became more of a aspiration than a reality. It certainly hasn’t been the case for as long as I’ve been around.

            Is the Supreme court more powerful than the Presidency? Within its reach, and so long as the Court has enough allies in Congress, absolutely. If it weren’t, it couldn’t enforce the Constitution against a President who didn’t want to obey it, now, could it?

            But the problem here isn’t the power of the Court. The problem here is the power of lower court judges to impose policy for years on end, as the legal system above them drags its feet. There’s no way a major policy decision of the executive should go years subject to an injunction by a single judge! It should be resolved one way or the other within months at most.

            1. They may be more political than you or I want, but they are structurally inevitably less political than those who stand for direct federal election.

              I see your declaration of unbalanced judicial power has a bunch of provisos. That sounds like some checks and balances to me.

              If your sole problem is federal injunctions set by lower courts, I’m down to discuss some reforms. But your outrage – and Barr’s – seem vastly more sweeping, and more partisan, than that.

              1. There’s nothing inevitable about it, Sarcastro: They face both less incentive to be political, and less in the way of negative consequences if they do act politically, too. Which way that shakes out depends on the judge.

                My chief problem is the injunctions, and the glacial pace of resolving them. One lower court judge, a minor cog in the judiciary, can end up setting executive branch policy in an area for literally years. As I said, there needs to be a really strong presumption against enjoining discretionary policies, (Where the judge isn’t claiming the action violates the Constitution, but only that the Executive didn’t convincingly jump through the hoops in changing the policy.) and a LOT faster resolution of these cases.

  4. I have to give the Prof credit for linking directly to the transcript; There are people not nearly so eager to provide access to that sort of source material, and risk their audiences deciding they’re wrong.

    I may frequently disagree with the Prof, but he’s upright that way.

  5. What we need are,

    1. Some sort of accelerated review so that a single judge can’t effectively dictate policy for years on end just due to the case being dragged out.

    I’ll buy this.

Please to post comments