Today in Supreme Court History: February 19, 1942

2/19/1942: President Roosevelt issues Executive Order 9066. The Supreme Court would consider the constitutionality of this Executive Order in Korematsu v. U.S. (1944).

 

Comments

[Dan Schiavetta]

Ogden v. Saunders, 25 U.S. 213 (decided February 19, 1827): states may legislate to any extent not prohibited by the Constitution and not exclusively the domain of Congress, specifically, Congress’s power to “establish uniform laws on bankruptcies throughout the United States” doesn’t prevent states from creating their own bankruptcy statutes so long as they don’t conflict with federal law and don’t affect contracts in effect before statutes went into effect (a long, long decision, with lots of opinions; this is about all one can say as to the “majority” written by Johnson)

United States v. Detroit Timber & Lumber Co., 200 U.S. 321 (decided February 19, 1906): A dispute over ownership of some forest land, but why does this case name sound familiar? Because it's added to the syllabus of every Court case to remind us that the syllabus is not part of the holding or the opinion and should never be cited. Here, the Government relied on a headnote in Hawley v. Diller, 1900, which the Court says was not relevant to the facts of that case. (Someone applying for our law review did this regularly in his submission -- one of the editors, a friend of mine, was pleased to “ding” him on his laziness because he was generally an asshole -- he didn’t fix the problem, gave up on applying, and went on to become a trial lawyer.)

Owasso Indepedent School District v. Falvo, 534 U.S. 426 (decided February 19, 2002): Family Educational Rights and Privacy Act of 1974, which requires confidentiality of grades recorded by school, not violated by “peer grading” (students grading each other’s assignments per teacher instructions and calling the grades out); suit was brought by parent who felt her child was embarrassed by this practice

Lynce v. Mathis, 519 U.S. 433 (decided February 19, 1997): Florida statute retroactively canceling early release program (so that released prisoners were reincarcerated) violated Ex Post Facto clause (art. I, §10)

Beverly v. Brooke, 15 U.S. 100 (decided February 19, 1817): owner of slaves who escaped during voyage could not recover value of slaves from master of vessel; opinion by Marshall recounts master’s attempts to land at various European ports blockaded during Napoleon’s “Continental System” attempt to strangle British and American shipping (which was unsuccessful)

Maryland v. Wilson, 519 U.S. 408 (decided February 19, 1997): police at traffic stop may order passengers out of car “after noticing apparent nervousness”; cocaine falling to ground during exit was admissible

Regents of the University of California v. Doe, 519 U.S. 425 (decided February 19, 1997): state university enjoyed Eleventh Amendment immunity from suit in federal court even though per prior agreement with federal government it would be indemnified for any judgment against it (this was a breach of contract suit by employee of federally owned laboratory operated by university)

United States v. Bhagat Singh Thind, 261 U.S. 204 (decided February 19, 1923): Sikh not allowed to become naturalized citizen because not “white” or “black” (the acceptable categories under the then current law)

[Michael P]

"Apparent nervousness" is up there with glazed eyes and suspicious smells as blank checks for cops to draw on when searching people they have stopped.

[Dan Schiavetta]

Most perfectly innocent people, stopped by the police, would be nervous. (But if you're an experienced dealer you can be cool as a cucumber while knowing there’s a bag of cocaine hidden under the back seat.)

[Michael P]

I was thinking more about unfalsifiability, but yes, lots of people will naturally be nervous when stopped by police.

[SRG2]

"The passenger remained calm which in my experience is unusual for innocent passengers and so was grounds for suspicion"...

[Dan Schiavetta]

“I’m not the Messiah.”

[brief silence]

“Only the true Messiah would deny his Messiah-hood.”

“In that case, I am the Messiah!”

[jubilant crowd] “He’s the Messiah!!”

[defaultdotxbe]

I watch a lot of interrogation videos on YouTube and you're absolutely right. Too nervous and they think you're guilty. Too calm and they also think you're guilty.

[David Nieporent]

Being too calm is also a sign of guilt.

[Dilan Esper]

I can't remember who did a dissent that went through all the cases saying the opposite behavior was "suspicious", but being nervous/being calm was one of them. There are cases with respect to each of them saying they are suspicious.

[Rev. Arthur L. Kirkland]

At least one summary of factors adjudicated to have qualified in court as suspicious (with citations) has circulated.

It includes just about everything (driving too fast; making eye contact with officers; appearing nervous; driving an expensive car; and many others) and the opposite of just about everything (driving too slowly; refraining from eye contact with officers; appearing calm; driving a beater; and many others).

[David Nieporent]

There are similar compilations for plane passengers, as opposed to drivers: disembarking first; disembarking last; disembarking in the middle of the pack; having too much carryon luggage; having not enough carryon luggage; checking too many bags; not checking enough bags; having new luggage; having old luggage… etc.

[John F. Carr]

I also forget the original source of the list of contrary cases. Short Circuit had a list last year:

https://reason.com/volokh/2023/06/16/short-circuit-a-roundup-of-recent-federal-court-decisions-215/

[Mr. Bumble]

Anyone care to comment on the ever increasing use of Executive Orders and their legitimacy?

[Michael P]

How do you qualify “increasing use”? https://www.presidency.ucsb.edu/statistics/data/executive-orders says that the number of EOs issues by presidential term has dropped a lot over the past century.

As for legitimacy, it seems hard to make a broad statement because so much of legitimacy depends on the details of a specific order. I have annual training that treats EOs as law that is just below federal statutes, which may be right, although I would think they’re more like super-regulations (especially from the perspective of elements of the executive branch, rather than the general public) — but that’s really a quibble with the training material rather than the legitimacy of executive orders overall. I don’t have a sense of whether executive orders are more likely to exceed the President’s power now than they were in the past, although I suspect they’re more defensible when they are issued at a lower rate.

[Mr. Bumble]

I stand corrected. I suppose after FDR's 3000 + there would appear to be a drop.

[Krychek_2]

Some of them have been necessitated by Congressional Republicans' refusal to work with Democrats to pass legislation. I'm sure Biden will now be issuing executive orders relating to the Southern Border that wouldn't be necessary if House Republicans would pass the border bill that contains most of what they want.

[Dan Schiavetta]

Yes

[David Nieporent]

The question doesn't make sense as phrased. Strictly speaking, everything a president does (well, everything he tells someone to do) is an executive order. Some of them are written up more formally and called Executive Orders, but there's no legal distinction there. An Executive Order (capital or lowercase) is just a command from the president to his own subordinates, which is part of the inherent executive power of the office.

The legitimacy of any particular executive order/Executive Order depends on the substance of the order — whether he has the legal authority to issue that particular command. But nobody doubts he has a general power to issue commands to people who report to him.

[Krychek_2]

I think it was Harry Truman who said that his first introduction to the presidency was when he gave an order and nothing happened.

[David Nieporent]

I don't remember that one, but I remember¹ a variant: "Wait until the first time [his presidential successor] Dwight Eisenhower gives an order and nothing happens." His point was about the difference between the presidency and the military; he wasn't making any sort of attack on Eisenhower.
​
​
​
¹Not firsthand! I remember reading it!

[F.D. Wolf]

I wonder if Executive Order 9066 perhaps was the namesake inspiration for “Order 66” in the Star Wars prequels (to kill all the Jedis).

[defaultdotxbe]

There are several fan theories about why 66 was the number chosen, and yes EO 9066 is one of them.

Other common theories are that F is the 6th letter of the alphabet, so 66 stands for Friendly Fire (FF) and another, perhaps a bit on the nose, theory is that it's one 6 short of 666.

[SRG2]

one of the editors, a friend of mine, was pleased to “ding” him on his laziness because he was generally an asshole — he didn’t fix the problem, gave up on applying, and went on to become a trial lawyer

I see an hallucinated ChatGPT case in his future 🙂

[Dan Schiavetta]

If you mean, Will he want to be replaced by ChatGPT? No — trial lawyers are too egotistical for that.

If you mean, Will he try a hallucinated ChatGPT case? No — trial lawyers are not smart enough for that.

If you mean, Will he try a case against a hallucinated ChatGPT attorney? Maybe — which would be bad news for him. Trial attorneys pride themselves on being non-tech savvy and are also easy to bait (or fool) if they think their intelligence or fortitude is being questioned.

[Dr. Ed 2]

Korematsu was also legally decided, just like the Trump lynching.

[Krychek_2]

Is it your position that Trump has done nothing wrong, or that he did do wrong things but should escape punishment for them?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

There are many positions between those two extremes.

[Krychek_2]

And if his position is somewhere in between I'm sure he can tell me.

[SRG2]

It all depends on the meaning of "wrong". Trump can do no wrong, so even if he engages in conduct that would be described as wrong if someone else had done it, it's not wrong when Trump does it. So Trump wouldn't be escaping punishment, in Dr Ed's eyes because he wouldn't have done anything wrong in the first place.

[David Nieporent]

Knowing him, probably both.

[CJColucci]

Someone should write about the implications of AI and Chat-GPT for Detroit Lumber/ one of the most cited cases ever.

[Dan Schiavetta]

We can expect AI to do what the Detroit Timer and Lumber Court warned us not to do: cite the syllabus as authority.

(OT but I think, especially in recent years, the syllabi are too long. I found that out when reading through cases to write my summaries. I decided early on to just read the damn opinions -- which usually have more quotable language anyway.)