The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Three Prosecutors Who Are Investigating Their Political Opponents

Trump announcing his candidacy would not end Garland's investigation. Rather, it would likely result in the appointment of a special counsel.

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At present, there are at least three prominent investigations in which a prosecutor is investigating his or her political opponent.

First, District Attorney Fani Willis, of Fulton County Georgia was investigating republican State Senator Burt Jones. After the 2020 election, Jones had signed an electoral certificate stating that Trump won the Peach state. Jones is now running for state Lieutenant Governor. Willis, a Democrat, hosted a fundraiser for Jones' Democratic opponent in the LG race. Due to this conflict of interest, a superior court judge disqualified Willis from questioning Jones. The judge said that decision to host the fundraiser was "a 'What are you thinking?' moment with 'horrible' optics." Yet Willis apparently saw nothing wrong with fundraising for the opponent of the person she was investigating.

Second, in Michigan, Matthew DePerno is the presumptive Republican nominee for Attorney General. There are allegations that after the 2020 election, DePerno told election clerks that he needed to inspect election equipment. Now, Nessell, who will likely face DePerno in the general election this fall, has begun an investigation against DePerno. According to the New York Times, the Attorney General's office "requested that a special prosecutor be appointed to continue the investigation and pursue potential criminal charges." You can read the petition here.

The statute does not explain if the Attorney General retains any supervisory authority over the special prosecuting attorney. But if the federal special counsel regulations are any indication, these investigations tend to take on a life of their own. Even Robert Mueller became Inspector Javert.

Speaking of special counsels, let's talk about the third prosecutor who is investigating his political opponent. Of course, I speak about the raid on Mar-A-Lago. According to early reports, the investigation concerns Trump's handling of classified documents.  I have no doubt that Garland weighed this decision at some length before he signed off on the search. Will this search lead to an indictment? Who knows. But the optics here are stark: the chief law enforcement officer of the Biden administration is searching the home of the front-runner for the 2024 republican ticket.

Several commentators have suggested that Trump should announce his candidacy early--before the midterms--to pre-empt any indictments. The thinking goes that DOJ would not prosecute President Biden's opponent in the run-up to the election. I think this thinking is flawed. The fact that Garland signed off on this search, even as Trump is signaling he will run, suggests that the election would not halt a criminal investigation. There is no statute that would bar a prosecution of Trump, even as he goes through the nomination process. The most likely outcome is that Garland would appoint a special counsel to investigate, and even prosecute Trump, as Biden runs for re-election. If you thought the Mueller investigation was unwieldy, this special counsel prosecution would be far, far more unconstrained.

We are veering into uncharted territories if the incumbent president is prosecuting the former president who is running for re-election. And even if Trump is convicted, he still would not be disqualified.

No, 18 U.S.C. § 2071 Cannot Disqualify Trump From The Presidency

That statute disqualifies a person from "holding any office under the United States."

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According to reports, the FBI searched Mar-A-Lago as part of an investigation about the handling of classified documents. Will this be the action that finally stops Trump? Several progressive commentators gleefully pointed to 18 U.S.C. § 2071. It provides:

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term "office" does not include the office held by any person as a retired officer of the Armed Forces of the United States.

If Trump is convicted of violating this statute, can he be disqualified from the presidency? No. And my colleague Seth Barrett Tillman wrote about this precise issue in 2015. At the time, conservative commentators, including former Attorney General Michael Mukasey, argued that Hillary Clinton could be disqualified from the presidency due to the storage of classified materials on her private email server. Seth explained that Mukasey's argument does not work.

Under Powell v. McCormack and U.S. Term Limits v. Thornton, Congress and the states cannot "add to the express textual qualifications for House and Senate seats in Article I." And that reasoning, Seth concluded, would seem to apply to the qualifications for the presidency in Article II. Several courts in the Seventh Circuit, and elsewhere, reached that same conclusion.

On this blog, Mukasey later admitted that Tillman was correct, and he was wrong:

[O]n reflection . . . Professor Tillman's [analysis] is spot on, and mine was mistaken. . . . The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that's all it is.

Tonight, Charlie Savage of the New York Times recounted this history in an article  on the Trump search.

Some Republicans were briefly entranced with whether the law could keep Mrs. Clinton out of the White House, including Michael Mukasey, a former attorney general in the administration of George W. Bush. So was at least one conservative think tank.

But in considering that situation, several legal scholars — including Seth B. Tillman of Maynouth University in Ireland and Eugene Volokh of the University of California, Los Angeles — noted that the Constitution sets eligibility criteria for who can be president, and argued that Supreme Court rulings suggest Congress cannot alter it. The Constitution allows Congress to disqualify people from holding office in impeachment proceedings, but grants no such power for ordinary criminal law.

Mr. Volokh later reported on his blog that Mr. Mukasey — who is also a former federal judge — wrote that "upon reflection," Mr. Mukasey had been mistaken and Mr. Tillman's analysis was "spot on." (Mrs. Clinton was never charged with any crime related to her use of the server.)

Once again, Tillman rebuts an argument that conservatives favored as a way to get Clinton, that liberals now favor as a way to get Trump. There is nothing new under the sun.

Back in 2015, Seth did not have to make the argument that the Presidency is not an "office under the United States" for purposes of Section 2071. But Seth and I did consider another statute, 18 U.S.C. § 2383, which also disqualifies a person from "holding any office under the United States." In an article published shortly after the inauguration, we addressed what happens if the Biden administration prosecutes and convicts Trump of insurrection. That article is suddenly relevant to our present moment.

Islamic Law

Mohammedan Law

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The Ohio Bangladesh telephonic wedding case I blogged about below mentioned "Mohammedan law," which struck me as unusual and archaic; and indeed a Google Ngrams search supports this. You can right-click on the image below and select "Open Image in New Tab" (or whatever your browser calls that) to enlarge, but basically the red line is for "Islamic law," the dark blue is for "Sharia law," and the light blue is for "Mohammedan law," which started in the lead around 1920 but is now very uncommon. ("Mahometan law" and "Mahomedan law," as you might gather, are even more unusual; "Muhammadan law" is about as rare as "Mohammedan law.")

There's nothing, of course, inherently derogatory about naming religious law after a prophet rather than after the formal name of the religion or of the religious law within the religion—portions of Jewish law, for instance, have historically been called "Mosaic law." But it's no longer customary, much as it's no longer customary to use "Hebrew" to refer to Jews as an ethnic group or a religion, though it was once quite normal, and is still reflected in the names of some synagogues and organizations, such as HIAS (Hebrew Immigrant Aid Society). And when such terms become archaic enough, people who hear them might wonder, "What does he mean by that?," even in the absence of specific reason to think they are pejorative.

But while it's no longer customary in America or in American law, as best I can tell, the term appears to be quite common (spelled "Mohammedan law," "Muhammadan law," or "Mahomedan law") in the legal systems of India, Pakistan, and Bangladesh. This may in turn stem from history, since many treatises have been so named; and because this has been such an important subject in those countries, the term seems to have stuck. And I take it that the Ohio court borrowed Bangladesh legal usage because that's what the Bangladesh law sources (which it viewed as relevant to determining the legal rules applicable to a marriage between Bangladesh citizens, conducted by telephone when the wife was in Bangladesh) used.

Free Speech

Racial Slurs Aren't "Obscene"

They thus can't be punished under a disturbing the peace law that bans "obscene language," though under the right circumstances they could be punished under separate provisions that generally ban "fighting words" (whether racially offensive or otherwise).

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In Commonwealth v. Bliesath, decided Friday by the Pennsylvania Superior Court (Judge John Bender, joined by Judge Maria McLaughlin, with Judge Daniel McCaffery concurring in the judgment), the defendant had been convicted of disorderly conduct under 18 Pa.C.S. § 5503(a)(3), which covers anyone who, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," "uses obscene language, or makes an obscene gesture." (He was sentences to 90 days' probation.)

The Commonwealth presented evidence that [Appellant] was seen by [City of Reading Police] Officer [Sean] Driscoll yelling at random people in the area of 6th and Penn Streets in the City of Reading. After being asked to stop by the [o]fficer, and failing to do so, the [o]fficer got out of the vehicle and approached [Appellant] to again ask him to stop and ask[ ] for his identification. When the [o]fficer was writing down [Appellant's] information, the [o]fficer observed [Appellant] yell racial slurs and threats at two males walking down the street while the [o]fficer was standing right in front of [Appellant]….

Specifically, Officer Driscoll stated that Appellant "yelled at the people to the southwest corner[, ']shut up you niggers[,'] and then he yelled again[, ']shut up I'm going to kill you because you are niggers[,'] and then he shouted[, ']I have two guns on me.[']"

The appellate court noted that Pennsylvania cases had read "obscene" to mean obscenity in the First Amendment sense—essentially, hard-core pornography. As a result, past precedents have found that, for instance, "chant[ing] 'fuck the police' during a funeral procession of a fallen police officer," "responding 'fuck you, asshole' to a street department employee and accompanying the response with the extension of his middle finger," and saying "go to hell Betsy," all didn't qualify as obscene.

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Foreign Law in American Courts

Ohio Court Recognizes Telephonic Marriage Ceremony Under Bangladesh Sharia Law Between Two Bangladesh Citizens

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From Momotaz v. Sattar, decided Thursday by the Ohio Court of Appeals, in an opinion by Judge Sean Gallagher, joined by Judges Anita Laster Mays and Eileen Gallagher:

On August 22, 2005, the parties participated in a telephonic marriage ceremony, which was conducted over a speaker phone. At the time of the marriage ceremony, husband resided in the United States, wife resided in Bangladesh, and both were citizens of Bangladesh. Husband traveled from Pennsylvania to New York and was with friends and relatives during the ceremony. Wife was in Bangladesh with friends and family members and husband's father. Also present in Bangladesh was Mawlana Kofiul Ahmed, who solemnized the marriage and identified himself as an assistant marriage registrar, and Abul Hashem Majumdar, a community leader who appeared to sign the marriage register on husband's behalf as his "pleader."

Pictures of the marriage ceremony were provided. {One photograph depicts Majumdar signing the marriage register during the marriage ceremony. Wife alleges that Majumdar was invited by husband's father to be the pleader. Although there are conflicting statements from witnesses, several witnesses stated that during the ceremony husband was asked for the appointment of Majumdar as his pleader and husband consented.} Witness statements indicated that the solemnization was according to Sharia law.

The legal marriage contract that was entered into between the parties is referred to as a "Nikah Nama." Husband stated in his deposition that there were no issues with the ceremony or the solemnization of the marriage before witnesses according to Muslim law, and he believed he was lawfully married according to Bangladesh law.

Following the marriage ceremony, wife continued to reside in Bangladesh until 2007, when husband traveled to Bangladesh. The marriage was consummated at that time. After a temporary stay in Canada, in August 2007, the couple arrived together in the United States, and they resided together in Pennsylvania. One child was born as issue of the marriage in February 2009. In October 2009, the family moved to Cleveland. Throughout their marriage, husband and wife presented themselves as a married couple. They lived together for 12 years, raised their child together, filed joint income tax returns, and wife received tuition benefits at Case Western Reserve University because husband was a faculty member.

But when the marriage broke down, the husband took the view that the marriage was invalid from the outset, arguing that various procedural rules required by Bangladesh law were not complied with. No, said the Ohio court:

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Free Speech

Reasons Not to Limit Private-Employer-Imposed Speech Restrictions: The Employer's Sub-Constitutional Rights?

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As I mentioned last week, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and this week and next I'd like to serialize it here.

Last Tuesday and Wednesday, I blogged the Introduction and the beginning of the argument in favor of such statutes, followed by an explanation of why such statutes usually don't violate employers' constitutional rights. This week, I discuss some other arguments against such statutes (and you can see the whole article right now, if you'd like, by looking at the PDF). I begin today with arguments that the statutes should be rejected in order to protect employers' rights, even if not constitutionally protected rights, not to associate.

[* * *]

Even in the absence of a constitutional right not to associate, of course, all of us have an interest in choosing whom we deal with, whether as friends, fellow club members, business partners, or employees. We may not want to deal with Nazis or Communists or Klansmen or supporters of terrorist movements. We may feel this particularly strongly because of our personal experiences: The child of refugees from Cuba may not want to deal with people who praise Che Guevara; the widow of a police officer who was killed in the line of duty may not want to deal with people who praise attacks on police, or call police officers "pigs"; a black or Jewish employer might especially not want to deal with Klansmen. Likewise, a business owner might want to cut off relations with someone because the business's other employees or customers don't want to associate with the person.

But when it comes to employment, our legal system has long generally rejected such claims. An employer might not want to employ union leaders, whose organizing, bargaining, and strike-threatening behavior he sees as jeopardizing the business he has spent a lifetime building up. An employer may not want to employ someone who made discrimination complaints against the employer in the past, perhaps on grounds that the employer views as ill-founded.

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Politics

Today in Supreme Court History: August 8, 2009

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8/8/2009: Justice Sonia Sotomayor takes oath.

Justice Sonia Sotomayor

Politics

Today in Supreme Court History: August 7, 2010

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8/7/2010: Justice Elena Kagan takes oath.

Justice Elena Kagan

 

Free Speech

Former Va. Lt. Gov. Justin Fairfax's #TheyLied Libel Lawsuit Against N.Y. Public Radio

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It was just filed today, Fairfax v. N.Y. Public Radio & WNYC (E.D. Va. Aug. 6, 2022); I'm traveling and so don't have time to analyze it closely, but I thought I'd link to the Complaint. Here's the opening, which of course is just Fairfax's allegation:

This defamation suit arises primarily from intentionally fabricated, false, and politically-motivated express and implied defamatory per se and per quod statements made with "actual malice" by both Meredith Watson … and Vanessa Tyson … alleging fictitious and intentionally fabricated sexual assaults by Justin Fairfax against them in 2000 and 2004, respectively. Those statements were published, republished, repeated, endorsed and presented as fact – both expressly and in context – with "actual malice" by NYPR and Melissa Harris-Perry … on or about August 6, 2021, during a broadcast of NYPR's and WNYC's news program "The Takeaway" titled "Politics, Power, and Abuse."

Immigration

The Rise of Private Refugee Sponsorship

The Uniting for Ukraine program and other new initiatives may open the door to a broader role for private citizens in sponsoring refugees.

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After an initial period when the United States accepted very few Ukrainians fleeing Russia's brutal invasion, admissions have ramped up in recent weeks, thanks in part to the Biden Administration's new Uniting for Ukraine program, which allows private citizens and organizations to sponsor Ukrainian migrants. These and other developments have led some to hope that the new policies herald a much broader shift to private refugee sponsorship. There is some basis for this optimism. But current policies have significant limitations that will need to be overcome in order to realize their full promise.

CBS recently summarized the growth of Ukrainian refugee admissions:

The U.S. received more than 100,000 Ukrainians in roughly five months following Russia's invasion of Ukraine, fulfilling President Biden's pledge of providing a temporary safe haven to those displaced as part of the largest refugee exodus since World War II, government statistics obtained by CBS News show….

Approximately 47,000 Ukrainians have come to the U.S. on temporary or immigrant visas; nearly 30,000 Ukrainians arrived under a private sponsorship program; more than 22,000 Ukrainians were admitted along the U.S.-Mexico border; and 500 Ukrainians entered the country through the traditional refugee system, the data show….

Only Ukrainians who entered the U.S. with immigrant visas or through the refugee admissions program have a direct path to permanent residency and ultimately, U.S. citizenship. These immigration pathways, however, typically take years to complete due to interviews, vetting and other steps.

Those who have arrived through the Uniting for Ukraine program, which was launched in late April to allow U.S.-based individuals to financially sponsor Ukrainians, were granted parole, a temporary humanitarian immigration classification that allows them to live and work in the U.S. for two years….

To fulfill Mr. Biden's pledge, DHS in late April set up the Uniting for Ukraine program, a free initiative that has drawn tens of thousands of applications from U.S. citizens and others hoping to sponsor the resettlement of Ukrainians, including their family members.

Since April 25, U.S. Citizenship and Immigration Services (USCIS) has received 92,000 applications from U.S. individuals seeking to sponsor Ukrainians, DHS figures show. More than 62,000 Ukrainians have been granted permission to travel to the U.S. as of July 29, including the nearly 30,000 individuals who have arrived so far, according to the DHS data.

In early May, the Biden Administration issued a call for proposals for a pilot private refugee sponsorship program, that might eventually be expanded into a broader policy that goes far beyond Ukrainian refugees.

The Administration's recent moves are obviously an improvement over the anemic official refugee system, which admitted a record low of only 11,411 refugees in fiscal year 2021, despite Biden Administration promises to improve it, after the damage done under Trump.

In a July 27 Foreign Affairs article [unfortunately paywalled, but you can get around it for free], migration policy specialist Gregory Maniatis argues that these and other moves herald a "refugee revolution" under which private refugee sponsorship will increasingly augment and overshadow traditional government-controlled refugee admissions, enabling the United States to take in more refugees at less cost, and with less opportunity for reversal by a hostile administration:

The State Department is the main gatekeeper for the resettlement system, but other federal, state, and local agencies also play critical yet complicating roles. A resettlement agency has to sign a cooperative agreement that is more than 100 pages long and regulates such finicky details as how many forks must be in a refugee's kitchen…. Refugees endure an average of two years of security, health, and other types of vetting, languishing overseas in often distressing or dangerous settings. The system's complexity has grown to the point that even sophisticated national service and faith organizations feel frozen out….

The consequences of the United States' narrow, professionalized approach to resettlement can be seen by comparing it with Canada's program. During the Vietnamese boat lift in the late 1970s, Ottawa opened up resettlement to the public through private sponsorship rather than insisting on a system run exclusively by the government. Today, Canada welcomes about 40,000 refugees a year—which in relation to the overall population would be equivalent to some 350,000 refugees in the United States—the majority through sponsorship….

Nearly a third of Canadians say they have been a member of a sponsorship group or have supported one. As a result, public backing for refugees in Canada makes resettlement untouchable—unlike in the United States, where the Trump administration nearly destroyed the system with surprisingly little resistance. It is one thing for a legislator to be lobbied by refugee professionals. It is quite another if the advocates are the lawmaker's neighbors who are volunteering their time to integrate newcomers—and who themselves are benefiting from the experience. Entire communities have been revived after deciding to systematically welcome refugees…..

The United States should make the Canadian sponsorship model the national resettlement standard—and improve on it. That process is already underway. This past year has upended the outdated American resettlement system as a rush of communities of care—veterans seeking to support their displaced Afghan interpreters and allies, members of the Ukrainian diaspora, service organizations, faith groups, local governments, colleges and universities, and ordinary Americans throughout the country moved by the plight of Afghans and Ukrainians—have demanded to be part of the response to the crises. The Biden administration has improvised in creative ways to address the surge of interest and need. These innovations point the way to a more powerful, community-led system of welcoming refugees in the United States.

I agree with many of Maniatis' points. In a July 18 Washington Post op ed, co-authored with Canadian refugee policy expert Sabine El-Chidiac, I myself argued that the United States should adopt a system modeled on Canada's, with various improvements. We too believe such an approach would be a massive improvement on the current US refugee admissions policy, and we too think the Uniting for Ukraine program was a valuable step in the right direction. The same can be said for the potential pilot program for private refugee admissions reaching beyond Ukraine. And I too believe that policies helping Ukrainian refugees should be extended to those fleeing war and oppression elsewhere. Doing so is both the right thing to do on moral and strategic grounds, and likely to benefit America's economy and society.

But Sabine and I also emphasized that recent initiatives have serious limitations - most notably that they give participating migrants only temporary residency and work rights (two years in the case of participants in the Uniting for Ukraine program). In addition, unilateral executive policies can often easily be reversed by a future, more hostile, administration - much like the anti-immigration Trump Administration undermined traditional refugee admissions.

Maniatis may well be right that community support will make private refugee sponsorship  harder to attack than the traditional government-controlled system. But an administration whose base primarily consists of the more xenophobic and restrictionist portions of the population might be inclined to ignore the opposition of these communities.

Ultimately, a truly firm basis for private refugee sponsorship will require legislative, as well as executive authorization. It will also necessitate giving those admitted permanent residency and work rights, as opposed to merely temporary ones. In the long run, we should go further, and allow many more people - especially those fleeing awful conditions - to migrate without having any kind of advance sponsorship at all. Doing so would create vast benefits for  current US citizens, as well as the migrants themselves.

In the meantime, recent administration initiatives are still useful steps in the right direction. The best should not be the enemy of the good! If nothing else, they have given the lie to claims that the US is incapable of absorbing far larger numbers of refugees.

 

 

Immigration

End Racial Profiling in Immigration Enforcement

It's virtually the only area of law enforcement where racial discrimination is officially permitted by policy. And it's both wrong and illegal.

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Reece Jones of the Texas Observer has a helpful article urging the Biden Administration to end racial profiling in immigration enforcement. Racial profiling is a serious problem in many aspects of law enforcement, state, local, and federal. But, as Jones explains, this virtually the only one where such discrimination is actually endorsed by policy, so long as the profiling occurs in a "border" area:

Despite a broad public consensus that law enforcement officers should not use racial profiling, efforts in Congress to ban the practice have failed for decades. The situation is even worse in the border zone, where racial profiling is explicitly allowed for the Border Patrol and other federal immigration police based on Supreme Court decisions and the Obama administration's 2014 guidelines on race and policing, which are still in effect. The Biden administration should revise those guidelines to ban racial profiling for all federal police, including the Border Patrol, and should state explicitly that racial profiling is a violation of the Civil Rights Act [of 1964]….

In 2014, former Attorney General Eric Holder directed the Department of Justice to review federal guidelines for the use of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity in policing. The review resulted in new guidance that banned racial profiling for most federal officers, but it does not apply to the Border Patrol. Buried in a footnote, it said "this guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities." At the time, a DHS official told the New York Times, "We can't do our job without taking ethnicity into account. We are very dependent on that."

The Trump and Biden administrations kept these guidelines on racial profiling in place.

The "border area" exception to rules against racial profiling is so broad that it effectively swallows the rule. As Jones notes, "the official border zone is defined as within 100 miles of borders and coastlines—a vast area that includes the homes of almost two-thirds of the United States population and many of the largest cities, including Chicago, Los Angeles, New York, and Washington, D.C."

You may not think that you live in a border area, but - as far as the Department of Homeland Security is concerned - you probably do. And if you belong to the same racial or ethnic group as suspected undocumented immigrants (or just look like you do), you are subject to racial profiling by law enforcement agencies seeking to catch and deport them.

The practical consequences of such profiling can be dire. Because of weak due process protections in the immigration detention and deportation system, the federal government routinely detains and deports large numbers of US citizens, before discovering its mistake. For obvious reasons, racial profiling increases the incidence of such errors. Victims of racial profiling are also sometimes physically abused by law enforcement. Even when (as in the vast majority of cases) racial profiling incidents end without anyone being detained or hurt, they still inflict needless suffering, and poison relations between law enforcement and minority communities.

In previous posts, I have explained why racial profiling in immigration enforcement is harmful and unjust, and also why racial profiling is a great evil more generally, and unconstitutional, too boot. Progressives, conservatives, and libertarians all have good reason to condemn the practice.

If you're a conservative  - or anyone else - committed to color-blindness in government policy (a commitment I share), you cannot make an exception for law enforcement:

If you truly believe that it is wrong for government to discriminate on the basis of race, you cannot ignore that principle when it comes to those government officials who carry badges and guns and have the power to kill and injure people. Otherwise, your position is blatantly inconsistent. Cynics will understandably suspect that your supposed opposition to discrimination only arise when whites are the victims, as in the case of affirmative action preferences in education.

I don't think I need to explain in detail why libertarians should be opposed to racial profiling in immigration enforcement, or law enforcement more generally. All our usual concerns about law enforcement abuses become even more pressing when racial discrimination enters the mix - especially if that discrimination is openly condoned by policy. And, of course, libertarians are no fans of immigration restrictions generally.

Finally, if you're a progressive, and you believe ending racial discrimination in the criminal justice system is an important priority, you cannot make an exception for immigration enforcement in so-called "border" areas that actually encompass areas where the vast majority of Americans live. You especially should not do so, given the long history of racial and ethnic bias in immigration policy.

Both major political parties and all three branches of government deserve a share of the blame here. As Jones describes, the current immigration enforcement guidelines permitting racial profiling were developed by the Obama Administration, and then continued by Trump and Biden, even as Congress sat back and did little or nothing to curb them.

Jones also explains how a series of misguided Supreme Court rulings from the 1970s sanctioned at least some racial profiling in immigration enforcement, even as the Court barred state-sponsored racial discrimination almost everywhere else. This is just one of many areas where the Court has endorsed pernicious double standards under which immigrant restrictions are often exempted from constitutional constraints that bind every other area of government policy.

Jones describes ways in which all three branches of government can begin to make up for their awful record in this field:

All three branches of government could act to end racial profiling in the United States. Congress should finally pass long-stalled bills to ban racial profiling. The Department of Justice should revise its guidance and remove the exception to the ban on racial profiling for the Border Patrol and immigration officers and should make clear that racial profiling violates Title VI of the Civil Rights Act. Finally, the Supreme Court should revisit the racial aspects of the Brignoni-Ponce and Martinez-Fuerte decisions.

In the past, the court has corrected erroneous rulings, often in cases about race. Brown v. Board of Education (1954) reversed Plessy v. Ferguson (1896), which had approved "separate but equal" public facilities for different races. Despite its current conservative composition, in Trump v. Hawaii (2018), the court condemned its previous decision in Korematsu v. United States (1944), which had allowed the internment of Japanese Americans during World War II. Chief Justice John Roberts wrote, "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and to be clear 'has no place in law under the Constitution.'" Among those symbols of America's racist past, Brignoni-Ponce and Martinez-Fuerte stand alone because they are still put into practice by the Border Patrol every day. It is time to correct those gravely wrong decisions and end racial profiling for the Texas DPS, the Border Patrol, and all police in the United States.

Sadly, though it repudiated the racial discrimination endorsed by Korematsu, the Supreme Court in Trump v. Hawaii perpetuated some other pernicious aspects of that infamous decision, at least in the context of immigration restrictions. Nonetheless, there is much all three branches of government can do to end the unjust practice of racial profiling in immigration enforcement. At the very least, the Biden Administration could easily withdraw the Obama-era guidelines permitting this practice in "border" areas, and Congress could easily ban it.

UPDATE: I should note that invoking Title VI of the Civil Rights Act of 1964 would only bar racial profiling immigration enforcement by state and local governments receiving federal funds. For example, as Jones notes, the Department of Justice is currently investigating racial profiling in immigration cases by the Texas Department of Public Safety. Racial profiling by federal officials is illegal by virtue of being unconstitutional, despite flawed Supreme Court decisions claiming that sometimes is not the case. Congress and the executive branch cannot disobey court rulings. But they can impose tighter constitutional constraints on themselves than the courts require, especially if they conclude the judicial branch's interpretation of the relevant constitutional provisions is flawed.

Politics

Today in Supreme Court History: August 6, 1792

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8/6/1792: Justice Thomas Johnson takes judicial oath.

Justice Thomas Johnson

 

Prof. John Harrison: Courts Are Not Agencies

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This is the fifth and last in in a series of posts summarizing an article titled Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, which is forthcoming in the BYU Law Review. The current draft is available on SSRN.

These posts, and the article on which they are based, criticize the doctrine of remand without vacatur. This last post discusses some implications of those criticisms for the debate about universal relief against the government – remedies in suits against the government that provide relief to everyone affected by agency action, not just the parties.

First, the ab initio invalidity of unlawful regulations shows that one leading argument in favor of universal relief against regulations is unsound. According to that argument, universal relief against unlawful regulations comes within the generally accepted principle that benefits to non-parties are permissible when they are indivisible from relief to parties. Relief is indivisible when vindicating the rights of parties inevitably entails benefiting non-parties. For example, an injunction against making excessive noise may provide benefits to neighbors who are not plaintiffs that cannot be separated from relief to plaintiffs.

Vacatur of unlawful regulations, the argument goes, is necessary to relieve the parties from their obligations under the regulation, and vacatur provides benefits to non-parties that are indivisible from the benefits to parties. Vacating a regulation renders it wholly inoperative, the way rescission by the agency would. A regulation that has been made wholly inoperative no longer binds anyone, party or not. Giving the parties relief by eliminating the rule's binding force inevitably and permissibly benefits everyone subject to the rule.

Because unlawful regulations are void ab initio, however, the reviewing court does not need to bring about invalidity in order to give the plaintiff a remedy. Rather, party-specific relief, like injunctions against enforcement against the plaintiff, or a declaration that the plaintiff has no duty to comply, are enough. Those party-specific remedies reflect the conclusion that the regulation was void when adopted, a situation the courts recognize but do not bring about. Vacatur is not needed to relieve the parties from a regulation that is already invalid. Injunctions against enforcement and declaratory judgments, as opposed to vacatur of a rule as such, are divisible relief. A court can enjoin proceedings against A without enjoining proceedings against B. A court can also declare A's legal relations with the government without declaring B's.

Second, recognizing ab initio invalidity reveals serious questions concerning the supposed remedy of vacatur, which operates on regulations as such and not only on parties. Ab initio invalidity might seem to rule out vacatur. How can a court invalidate an already-invalid regulation?  Despite that difficulty, invalidation of an invalid regulation is in a sense possible. Whether that effect can be brought about by a court, however, is not clear.

Strange as it may seem, an invalid regulation can be invalidated. That odd possibility arises because regulations, like statutes, have more than one necessary condition for validity. To be binding, a statute must have been adopted pursuant to the Constitution's law-making process, its content must be consistent with the Constitution, and it must not have been repealed. Repeal deprives a statute of a necessary condition for validity that is independent of substantive constitutionality. For that reason, when Congress repeals a statutory provision that is wholly unconstitutional, a meaningful legal event takes place. In similar fashion, a duly-promulgated regulation that is wholly invalid because not authorized by statute, for example, can in a meaningful sense be repealed. Congress can pass new legislation that refers to the regulation and eliminates its legal force, and the agency can rescind it. A regulation, like a statute, can be deprived of one necessary condition for validity even if it already lacks another.

Both legislative and executive power can operate on rules as such, whereas the core operation of judicial power is on parties to lawsuits. Whether judicial power can operate on regulations the way legislative and executive power can is not clear. Courts cannot repeal statutes, so maybe they cannot rescind rules. A court can order an agency to rescind a rule, but an injunction directing rescission is an order to a party, not an act of law-making. Whether Congress has authorized the federal courts to deprive regulations of legal force is also not clear. In describing proceedings in which judicial review takes place, section 703 of the APA mentions suits for injunctions and declaratory judgments, which operate on parties. Section 703 does not list proceedings for vacatur. That provision does mention special statutory review proceedings; whether any of them contemplates that a reviewing court will directly change the content of the law depends on the meaning of those provisions.

The analogy between court-court and court-agency review obscures the question whether courts can change the content of regulatory law and the question whether Congress has empowered them to do so. Agencies and courts exercise different kinds of power, whereas appellate courts exercise judicial power just as lower courts do. An appellate court can displace the legal effects of a lower-court order by vacating it, because lower courts and appellate courts work together in deciding cases through the exercise of judicial power.

Agencies are not courts. The regulations agencies produce are more like statutes than like lower-court judgments, in that unlawful agency regulations are in general invalid, just as unconstitutional statutory rules are invalid. Courts should not tell regulated parties that they are obliged to comply with unlawful regulations while agencies seek to repair the regulations' flaws. The analogy between agencies and lower courts on which remand without vacatur rests is no more than an analogy, and often is misleading.

Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Measles, tough weeds, and a COVID hoax.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

SCOTUSblog petition of the week: Does the Fourteenth Amendment require meaningful review of restrictions on the right to engage in a common occupation? IJ says not only yes, but also: oh my goodness gracious meaningful review is such a reasonable ask. Perhaps after you read the eminently readable petition you will agree. Click here for more on the case.

  • A member of the Fleet Marine Corps Reserve sexually assaults another Marine's wife while moonlighting as a bartender in Japan. He's court-martialed and sentenced to 10 months' confinement and a dishonorable discharge. But wait! The Constitution says Congress may only place "the land and naval Forces" under the jurisdiction of a court-martial, but membership in the Fleet Marine Reserve, though not formal retirement, "is a de facto retirement status." Does that count? D.C. Circuit: Reservists can still be ordered back into service; that's enough for military jurisdiction. Dissent: That may come as a surprise to the nation's two million fully retired service members, who are also subject to recall.
  • High-frequency trading occurs at the speed of light and every microsecond counts. Which is why a securities exchange put up a "speedbump" of 350 microseconds (1/11th the blink of an eye) to try to slow down "latency arbitrage" among its traders. Was the SEC's "D-Limit order" approving the speedbump arbitrary and capricious? D.C. Circuit: No. The order's fine.
  • There are over 800k drones registered with the FAA, most of which are for recreational use. Due to worries of these little airplanes bumping into larger aircraft and helicopters—and also just falling out of the sky—Congress asked the FAA to develop standards for identifying them. The resulting rule requires all drones to have a "Remote ID" emitted via radio signal. Does the rule allow a warrantless search in violation of the Fourth Amendment? D.C. Circuit: This facial challenge fails. Flying a drone ain't private, the radio signal can only be detected in close proximity to one, and the ID is anonymous. The rule is ok under the APA as well.
  • After measles outbreaks in low-vax-rate communities, New York officials ditch religious exemption to vaccine requirement for school children and also tighten the standards for a medical exemption (a doctor's mere say-so will no longer suffice). Second Circuit: And that violates neither the Constitution's substantive due process protections nor a federal law that prohibits discrimination against the disabled. And anyway, kids only need to comply "if they wish to attend a school in the State," so what's the big deal?
  • The Privileges and Immunities Clause of Article IV of the Constitution means that states can't discriminate against nonresidents who want to pursue an occupation or acquire property in the state. But surely, says Prince George's County, Md., that doesn't mean we can't discriminate in favor of gov't employees who work in the county, right? Fourth Circuit: Of course it means that. What else would it mean? Come on, guys.
  • South Carolina man experienced a childhood of appalling abuse and trauma, repeatedly attempted suicide, and underwent multiple in-patient stays in psychiatric hospitals before committing a string of horrific crimes. Sentencing court: There's no mitigating evidence that he has a severe mental illness, so death penalty. Fourth Circuit: Uh, even under the most deferential standard out there (AEDPA), "the record plainly and unequivocally belies this conclusion." Reversed. Dissent: This is the most deferential standard out there, and since fair-minded jurists can disagree about the correctness of the sentencing court's decision, we must affirm.
  • Man pleads guilty to committing a crime of violence while having failed to register as a sex offender (subject to his right to appeal the constitutionality of the law). In exchange, the gov't drops two other counts on which he'd been indicted. He appeals, wins. Feds: But how 'bout them other counts? The agreement never said we couldn't re-prosecute. Fourth Circuit: Not a chance.
  • Allegation: After newly elected Castle Hills, Tex. councilwoman (a septuagenarian and the first-ever Hispanic woman to serve) criticized the city manager, his buddies (the mayor, the police chief, and a specially deputized private attorney) get her jailed for bogus violation of a law that is never used to punish the harmless, ordinary conduct they accused her of. Unlawful retaliation? The dissent "makes a forceful case for why the Constitution ought to provide a claim here," says the Fifth Circuit, but no. (This is an IJ case.)
  • Allegation: Male Dallas jail officers can get full weekends off, whereas female officers can only get one weekend day and one weekday off. Unlawful discrimination on the basis of sex? Fifth Circuit: Circuit precedent requires plaintiffs to show they've suffered an adverse employment action to proceed under Title VII of the Civil Rights Act of 1964 or its state-law analogue, and these plaintiffs haven't been fired, demoted, transferred, etc. We should probably go en banc about it.
  • In early April 2020, a San Antonio, Tex. jokester posts on Facebook that he's paid his COVID-infected acquaintance to lick items in two grocery stores. Turns out it was a hoax, but the ensuing federal charges and 15-month prison sentence are very real. Fifth Circuit: Conviction affirmed. The jokester is covered by the federal statute criminalizing hoaxes about biological weapons. And that statute's constitutional.
  • In which the Fifth Circuit's soon-to-be-retired Judge Costa does his level best to enthrall the reader in a $1.5 bil tax dispute between Exxon and the IRS.
  • After discovering she's in a same-sex union, Catholic high school in Indianapolis lets a long-time guidance counselor go. Unlawful discrimination in violation of (among other things) the Civil Rights Act of 1964? The Seventh Circuit says no; the First Amendment permits religious employers to hire and fire ministers as they choose. Easterbrook, J., concurring: To call her a minister is "a stretch," but why are we even talking about the Constitution when, properly read, the 1964 CRA doesn't apply to religious institutions at all?
  • Following the Jacob Blake shooting, a couple participating in Madison, Wisc. riots poured gasoline along the front of an office building and lit it on fire. They're convicted under the federal arson statute. Seventh Circuit: And Congress did not overstep its Commerce Clause authority in enacting the law.
  • Allegation: Aberdeen, S.D. elementary-school teacher routinely abused her special-education students, including locking one child in a small room 274 times over a four-month period, throwing another into the pool after he had declined to swim, and forcibly stripping a third child and putting on his bathing suit after he had refused. Teacher: Qualified immunity! Eighth Circuit: Not on the Fourth Amendment claims.
  • The feds charge South Dakota woman with a slate of counts relating to a brutal assault but then reach a plea under which she agrees to plead guilty to one count of robbery in exchange for the government's dismissing the remaining four counts. District court: Not so fast. She did some really heinous stuff and deserves to have the book thrown at her. Plea agreement rejected. Gov't: Okay, well, then we'll move to voluntarily dismiss those extra counts. District court: Nope. Eighth Circuit: The district court was way out of line in second-guessing the government's decision to dismiss some of the counts. Case remanded for the district court to dismiss those counts (where, presumably, the court will have broad discretion to fire the woman into the sun at sentencing if and when she is convicted on the one remaining count).
  • On his own time, private citizen who is also a Phoenix, Ariz. police officer circulates content on Facebook that denigrates Muslims. Years later, some muckrakers publicize his posts, and the police dept. determines that discipline (ranging from an unpaid 40-hour suspension to termination) may be appropriate. Unconstitutional retaliation over his protected speech? The Ninth Circuit says that seems unlikely, but the district court should not have dismissed on the grounds that it did. (His challenge to the dept.'s social media policy was properly dismissed, however also revived in part.)
  • The drug company Mylan, maker of the EpiPen, has a near-monopoly on the market for epinephrine auto-injectors used to treat anaphylaxis. Competitor Sanofi, whose product is designed to more comfortably fit in a pocket, files an antitrust lawsuit alleging unfair competition. Mylan's deals with insurance formularies are so good they've been shut out of the market! Tenth Circuit: No liability. "'Competition is a tough weed, not a delicate flower.' – George Stigler"
  • Allegation: Guard assaults restrained inmate at Florence, Colo. federal pen out of view of cameras. Can the inmate sue the guard for excessive force in violation of the Eighth Amendment? The Tenth Circuit says no, there's no Constitution in federal prison (unless the claim is for deliberate indifference to a medical need—and maybe not even then). Inmates should file a grievance with the feds' Administrative Remedy Program.
  • Courts have blessed the use of surprise, warrantless inspections to enforce regulations of closely regulated businesses like underground mines and commercial trucks, but what about strip clubs? Eleventh Circuit: Yeah, those, too.
  • If you're arrested in Cullman County, Ala., for anything other than capital murder, you can be released immediately upon posting bail, unless the sheriff requests a hearing and proves by clear and convincing evidence that you're a "significant flight risk or a danger to the community." But if you're broke, you have to wait for a hearing before a judge, who sets bail with no particular standard of proof. A due process violation? Eleventh Circuit: There are enough safeguards baked into the system for indigent detainees. Dissent: The district court found the system imposed de facto pretrial detention on indigent detainees, and we can't just ignore that finding.
  • Tampa, Fla. man brings state law claims against officers who allegedly used excessive force and unreasonably arrested him while executing a search warrant related to animal abuse. (He says his dog had cancer, which caused sores, and was on palliative care.) Are the officers entitled to sovereign immunity under Florida law? Eleventh Circuit: Because there's no plausible allegation that the officers acted with actual malice (which is different from acting without probable cause), they sure are immune.
  • Jessica and Jesse Swinger, a married couple who are not swingers, create advertisement for Miami swingers' club using the likenesses of 32 models without consent. A jury awards the models $12.5k to $65k each. Eleventh Circuit: Not enough evidence two of the club's managers were involved. Reversed as to them.
  • And in en banc news, the Eleventh Circuit will not reconsider its decision that "incentive payments" made to named plaintiffs in class actions are prohibited by two Supreme Court decisions published in the 1880s, decades before the enactment of Fed. R. Civ. P. 23 (which governs class actions). Four judges dissent from denial, while Judge Newsom writes a "concurral" about why he will not be writing a concurral.

In 2009, a tree fell on Sarah Hohenberg's stately, historic home in Memphis, rendering it uninhabitable. When her insurance company refused to pay for the damage, she took them to court. But while that was pending, her neighbors sued her in Environmental Court—sort of a Star Chamber for code enforcement—a process that bankrupted her, rendered her homeless, nearly resulted in her arrest, and completely ruined her life. (And even after a forced sale of the house in bankruptcy, as of 2021 the house was still in disrepair.) This week, a federal district court took a hard look at the Environmental Court's lack of procedural safeguards (there are no records of proceedings; testimony isn't authenticated; witnesses don't swear to be truthful; people get sent to jail for being unable to afford repairs) and decided to dismiss the case on Rooker-Feldman grounds. Click here to learn more. And then maybe have a gander at Radley Balko's superb journalism on Nashville's similarly constituted Environmental Court.

AI Can't Be an "Inventor" Under the U.S. Patent Act

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From Thaler v. Vidal, decided today by the Federal Circuit (Judge Tony Leonard Stark, joined by Chief Judge Kimberly Moore and Judge Richard Taranto):

This case presents the question of who, or what, can be an inventor. Specifically, we are asked to decide if an artificial intelligence (AI) software system can be listed as the inventor on a patent application. At first, it might seem that resolving this issue would involve an abstract inquiry into the nature of invention or the rights, if any, of AI systems. In fact, however, we do not need to ponder these metaphysical matters. Instead, our task begins—and ends—with consideration of the applicable definition in the relevant statute.

The United States Patent and Trademark Office (PTO) undertook the same analysis and concluded that the Patent Act defines "inventor" as limited to natural persons; that is, human beings. Accordingly, the PTO denied Stephen Thaler's patent applications, which failed to list any human as an inventor. Thaler challenged that conclusion in the U.S. District Court for the Eastern District of Virginia, which agreed with the PTO and granted it summary judgment. We, too, conclude that the Patent Act requires an "inventor" to be a natural person and, therefore, affirm.

Thanks to Spencer Gibbs for the pointer.

Blackstone on precedent and interpretation

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An interesting line from Blackstone's letters:

"Precedents are Laws interpreted by Usage; & if there has been no Interpretation, we must resort to the Law itself."

"Letter 18. To Randle Wilbraham, 9 January 1753 [draft]," in The Letters of Sir William Blackstone 1744–1780, at 26 (W. R. Prest ed. 2006) (Selden Society Supplementary Series vol. 14).

Free Speech

Federal Prosecutor Sets Up Hotline for Reporting, Among Other Things, People "Espousing … Hate-Filled Views"

"In Massachusetts, we have recently seen multiple incidents of groups espousing deeply offensive and hurtful ideologies displayed on our streets."

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A press release Wednesday by the U.S. Attorney in charge of the federal prosecutor's office in Massachusetts, Rachael S. Rollins announced the rollout of an "End Hate Now" telephone hotline (emphasis added):

The "End Hate Now" hotline [1-83-END-H8-NOW] is dedicated for reporting hate-based incidents or potential criminal activity. Massachusetts residents and visitors are encouraged to call the hotline to report concerning or troubling incidents of hate, potential hate crimes, or concerns regarding individuals believed to be espousing the hate-filled views or actions we learn of far too often in the wake of mass shootings and/or acts of hate-based violent extremism. Callers are encouraged to leave their contact information but may remain anonymous….

Hate crimes are illegal acts committed based on a victim's perceived or actual race, color, religion, national origin, sexual orientation, gender, gender identity, or disability. Beliefs are not hate crimes. Distasteful ideologies, advocacy of political or social positions, use of discriminatory rhetoric, or the general philosophic embrace of biased or hate-filled beliefs are not crimes. Under federal law, investigations may not be based solely on an individual's beliefs or their protected First Amendment activity.

"With the uptick in horrific mass-shootings and unimaginable acts of racially motivated violent extremism we have seen across our country, people are scared. In Massachusetts, we have recently seen multiple incidents of groups espousing deeply offensive and hurtful ideologies displayed on our streets. A recent act of hateful vandalism at the future PRYDE senior housing facility in Hyde Park threatened burning and death against the LGBTQ+ community. Enough is enough. My office is offering our residents and visitors a new outlet for bringing these critical and concerning issues seeped in bigotry and hatred to the attention of law enforcement," said U.S. Attorney Rollins. "I am asking people – when you see hate, call this number and let us know. If you have serious concerns about a loved one, a friend, or even an acquaintance, call this number and let us know…." …

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Free Speech

Reasons Not to Limit Private-Employer-Imposed Speech Restrictions: The Employer's Own Free Speech Rights?

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As I mentioned earlier this week, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and this week and next I'd like to serialize it here.

Tuesday and Wednesday, I blogged the Introduction and the beginning of the argument in favor of such statutes; today, I continue discussing some arguments against such statutes (and you can see the whole article right now, if you'd like, by looking at the PDF).

[* * *]

Freedom of Symbolic Expression

Nor can employers argue that firing employees based on their speech, or refusing to hire them, is symbolic expression protected by the First Amendment. In Rumsfeld v. FAIR, the Court rejected law schools' argument that excluding military recruiters from their on-campus recruiting programs was constitutionally protected symbolic expression. Such exclusion "is not inherently expressive," since "[a]n observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else." And when "[t]he expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it," those actions are "not so inherently expressive that [they] warrant[] protection under O'Brien." "[I]f an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes," the court need not "apply O'Brien to determine whether the Tax Code violates the First Amendment."[1]

The same would apply here. By itself, the firing of an employee (or the refusal to hire the employee) doesn't convey a message. An observer who learns of it "has no way of knowing whether the [employer] is expressing its disapproval of [the employee's speech, religion, race, sexual orientation, or the like]" or has instead found that this employee or applicant hasn't been doing a good job. "The expressive component of [the employer's] actions is not created by the conduct itself but by the speech that accompanies it." Indeed, that's why job discrimination based on other criteria, such as religion or race, isn't treated as constitutionally protected symbolic expression.

And even if firing someone is viewed as "inherently expressive," that would only subject the ban on discrimination based on speech to O'Brien scrutiny. That is generally a deferential test, which requires "narrow tailoring" (and not in the strong sense that term carries under strict scrutiny) to a "substantial government interest."[2] The interests in protecting political expression are likely to qualify as important enough, for the reasons given in Part I. And the law is likely to be narrowly tailored for the same reason that the ban on public accommodations discrimination in Roberts is narrowly tailored: Because employment discrimination "produce[s] special harms distinct from [its] communicative impact," an antidiscrimination law "'responds precisely to the substantive problem which legitimately concerns' the State and abridges no more" symbolic expression "than is necessary to accomplish that purpose."[3]

Freedom of Speech

To be sure, sometimes having to hire an employee who visibly holds particular views might undermine an employer's ability to express its chosen message, just as having to allow a gay rights activist to be an assistant scoutmaster was seen as undermining the Boy Scouts' ability to express its chosen message.[4]

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