On Tuesday, President Biden issued a travel ban of asylum seekers:
The entry of any noncitizen into the United States across the southern border is hereby suspended and limited, subject to section 3 of this proclamation. This suspension and limitation on entry shall be effective at 12:01 a.m. eastern daylight time on June 5, 2024. The suspension and limitation directed in this proclamation shall be discontinued pursuant to subsection
The order invokes Section 212(f) of the INA, or for those who are not immigration lawyers, 8 U.S.C. § 1182(f). It provides, in part:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
This was the same section invoked by President Trump in each iteration of his travel ban. Between 2017 and 2018, I wrote more about Section 212(f) than I'd care to recall. In Trump v. Hawaii, Chief Justice Roberts described the provision with sweeping language:
By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry ("[w]henever [he] finds that the entry" of aliens "would be detrimental" to the national interest); whose entry to suspend ("all aliensor any class of aliens"); for how long ("for such period as heshall deem necessary"); and on what conditions ("any restrictions he may deem to be appropriate"). It is therefore unsurprising that we have previously observed that§1182(f) vests the President with "ample power" to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187 (finding it "perfectly clear" that the President could "establish a naval blockade" to prevent illegal migrants from entering theUnited States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the "sweeping proclamation power" in §1182(f) as enabling the President to supplement the other grounds of inadmissibility in theINA).
In the wake of Trump v. Hawaii, there were calls to repeal Section 212(f). I was skeptical that even a Democratic President would remove such a potent weapon from his executive power arsenal. (There is a reason that Congress did not enact any of the Post-Trump reform of the executive branch.) And after nearly four years of a Biden Presidency, Section 212(f) remains intact.
The policy went into effect about thirty minutes ago. The Northern District of California has not yet enjoined the policy, but it will. Judge Tigar probably has a macro for these sorts of TROs. I'm sure the Department of Justice will go through the motions to defend the policy. But does the Biden DOJ actually want to win here? Wouldn't the best case scenario be for Biden to take political credit for doing something about the border, and then blame the courts not allowing him to do so something, as his supporters will be content that asylum seeker scan continue entry? I wonder if any DOJ lawyers will refuse to sign the briefs, as some did with the Trump orders.
Earlier today, President Biden announced a new policy severely restricting migrants' rights to claim asylum after crossing the southern border. Reason immigration writer Fiona Harrigan has a helpful summary of its provisions:
"The entry of any noncitizen into the United States across the southern border is hereby suspended and limited," said Biden's order. When border encounters between ports of entry hit an average of 2,500 per day over a seven-day period, migrants will no longer be allowed to seek asylum unless they qualify for a narrow exception or request an appointment at a port of entry through an app (a process that has been glitchy and cumbersome). The restrictions will lift two weeks after the daily number of encounters between ports of entry falls below 1,500 on average over a seven-day period.
The policy does include exceptions for unaccompanied minors and migrants who CBP officers grant permission to enter "based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the entry or encounter that warranted permitting the noncitizen to enter."
But the new policy would bar nearly all other migrants from applying for asylum, including those who are fleeing violence and persecution of the kind that asylum is supposed to protect against.
It's worth noting that Biden already adopted a highly restrictive "Trump-lite" asylum policy last year, leading to a legal challenge in which a federal court ruled against it. As Judge Judge Jon Tigar of the Northern District of California point out in his opinion, the plain text of the Refugee Act of 1980, "provides that any noncitizen who arrives in the United States, 'whether or not at a designated port of arrival' and 'irrespective of [their] status, may apply for asylum.'" Similar (though even more restrictive) policies were struck down by courts under the Trump Administration, including in a decision written by prominent conservative Judge Jay Bybee.
Judge Tigar's ruling was stayed by the US Court of Appeals for the Ninth Circuit, which still has not reached a final decision on the case. This new policy is also likely to be challenged, and there is a high likelihood it too will be struck down by courts. The text of the 1980 Refugee Act is clear, and Biden's policy pretty obviously violates it.
My Cato Institute colleague David Bier explains why the policy is likely to be harmful and counterproductive, as well as illegal:
Biden's order will take effect when Border Patrol arrests exceed 2,500 per day (which they do now) and will expire only when arrests fall below 1,500 per day for two consecutive weeks. From fiscal years 2019 to 2024, DHS has met this 1,500-per-day target in 11 months—all but once in fiscal year 2020. The Biden administration has never met this standard.
Even the Trump administration, despite the pandemic, a locked‐down economy, and the most determined executive branch, failed to meet this standard in August, September, October, November, or December 2020. Achieving this goal would require a 60‐percent decline in arrests….
The executive order will not work. Biden has already tried a complete ban on asylum—an even more severe version under the health code law known as Title 42. Title 42 was applied most strictly to adults traveling without children from Mexico and northern Central America. During the time that it was enforced, Title 42 almost immediately led to more arrests of this demographic. This increase happened primarily because people who were expelled often attempted to re‐cross the border, leading to more arrests….
Biden is demanding that every asylum seeker apply for asylum at US ports of entry, but his order also requires that they use a cell phone app called CBP One to make an appointment three weeks in advance while they are still in Mexico. Moreover, the number of daily appointments is capped at 1,450. Therefore, Biden is effectively banning about 4,000 people per day from seeking asylum but is not opening up any additional legal ways for them to enter. Not a single additional person will enter legally because of this new rule. This will doom the entire effort, as people will continue to enter illegally….
If the order is effective at denying [asylum to] people who cross illegally, it will cause more people to enter illegally and try to evade detection rather than turn themselves in for asylum. Evasions mean more trespassing on private property, more car chases with smugglers, and more confrontations between Border Patrol agents and migrants….
This action will only result in more deaths of migrants who think the only way to enter is by evading Border Patrol—by hiding in deserts, swimming the Rio Grande River, or slipping in surreptitiously into the back of tractor‐trailers. In the big picture, President Biden should not be ignoring US laws. He should not be seeking to stop people from coming to the United States. Instead, he should be working to let them enter this country legally and orderly so they can contribute to it. America is a great country, and people want to join it. That's a good thing. We should let them do so legally.
As Bier and I outlined in a November USA Today article, if Biden really wants to reduce disorder at the border, the best way to do it is by expanding his own previous initiatives to make legal entry easier, which have been undermined by arbitrary caps and bureaucratic obstacles. Federal and state governments could also make things better by giving asylum seekers work permits immediately and cutting back on zoning rules that make it difficult to build new housing in response to demand.
Such policies would simultaneously help migrants fleeing horrible oppression and poverty, boost the American economy by enabling migrants to contribute to it more, and reduce chaos at the border. Even if it survives legal challenges, Biden's new asylum policy is unlikely to achieve any of those goals, and - for reasons David Bier notes - could well make things worse.
Admittedly, Biden's main goal is probably to help himself politically in an election year, rather than to improve policy or follow the law. We'll see if that political objective is achieved. I am skeptical that he will get much of a boost from it. Public opinion on border issues is more influenced by perceptions of disorder than by details of policy (which most voters, especially relatively inattentive swing voters, know little about). But I could be wrong. The White House's political strategists may have a better grasp on the political dynamics than I do. Perhaps the appearance of toughness will pay political dividends, regardless of the actual effects on the ground. Time will tell.
Biden's overall immigration policy is still vastly better than Trump's, and he deserves credit for a variety of improvements. But he also deserves blame when he adopts cruel Trump-like asylum policies in the hope of scoring political points.
Recent studies diverge on the extent to which public opinion backs policies that would deregulate housing construction. YIMBYs would do well to learn from both.
YIMBY policies command broad support among economists and land-use experts across the political spectrum. But how popular are these ideas with the general public? Two recent studies give diverging answers to that question. A September 2023 survey conducted by Pew Charitable Trusts finds broad support for a wide range of YIMBY policies, cutting across partisan lines. By contrast, a recent study by legal scholar Chris Elmendorf and political scientists Clayton Nall and Stan Oklobdzija (ENO) is far more equivocal, finding much less support for housing deregulation.
Which is right? I suspect the truth lies somewhere in between. It may well be that many voters don't know much about these issues, don't have strong opinions about them, and therefore their views (and answers to survey questions) may vary a lot based on context and framing.
The Pew survey finds large majorities supporting many different deregulatory housing policies.
Pew Charitable Trusts.
Notice that every one of these policies has the support of a large majority, with the exception of allowing homes to be built closer together, with smaller yards, where respondents are evenly divided (49% for, 50% against). Most significantly, a clear majority (58%) supports allowing construction of multifamily homes on any residential lot. This would eliminate single-family-only zoning, the most widespread and pernicious type of exclusionary zoning. It is also notable that Democrats and independents tends to back YIMBY reforms more than Republicans do, despite the latter's reputation as being more sympathetic to property rights.
The Pew study also finds large majorities backing a wide range of rationales for housing policy change, including "To enable people to live closer to offices, stores, restaurants or public transportation" (77% say this is either an "excellent" or "good" rationale for policy change), and "To make housing more affordable" (82%), and "To help boost local economies by helping business owners have more potential employees and customers nearby" (76%). Most impressively, 65% say it would be excellent or good to adopt housing policies that "give people more freedom to do what they want with their property." Almost all building restrictions infringe on homeowners' property rights in that way!
By contrast, the ENO study is far more pessimistic about public support for YIMBYism. Here is the abstract summarizing their findings:
How much has rising political attention to problems of housing affordability translated into support for market-rate housing development? A tacit assumption of YIMBY (``Yes In My Backyard'') activists is that more public attention to housing affordability will engender more support for their policy agenda of removing regulatory barriers to dense market-rate housing. Yet recent research finds that the mass public has little conviction that more housing supply would improve affordability, which in turn raises questions about the depth of public support for supply-side policies relative to price controls, demand subsidies, or restrictions on ``Wall Street'' investors, to name a few. In a national survey of 5,000 urban and suburban voters, we elicited perceptions of the efficacy of a wide range of potential state policies for ``helping people get housing they can afford.'' We also asked respondents whether they support various housing and non-housing policies. Finally, as a way of estimating the revealed importance of housing-policy preferences relative to the more conventional grist of state politics, we elicited preferences over randomized, three-policy platforms. In a set of results that recall the politics of the inflation-ridden 1970s, we find that homeowners and renters alike support price controls, demand subsidies, restrictions on Wall Street buyers, and subsidized affordable housing. The revealed-preference results further suggest, contrary to our expectations, that price controls and anti ``Wall Street'' restrictions are very important to voters. Contrary to the recommendations of housing economists and other experts, allowing more market-rate housing is regarded as ineffective and draws only middling levels of public support. Opponents of market-rate housing development also care more about the issue than do supporters. Finally, we show that people who claim that housing is very important to them don't have distinctive housing-policy preferences.
The major differences between the Pew survey and the ENO study are that the latter asks more complicated and detailed questions, and that they intersperse questions about YIMBY policies with questions about pro-regulatory policies (e.g. - rent control and restrictions on developers), which most experts consider to be ineffective (rent control has a particularly bad reputation among those in the know), but which are clearly popular with many voters. ENO also leave more room for uncertainty and ambiguity (including allowing "don't know" answers), whereas the Pew questions have a "forced choice" format, with no "don't know" or "uncertain" option. The latter approach probably elicits more weakly held views than the former.
I also think the Pew question wording is relatively more favorable to YIMBY policies (sometimes implicitly suggesting they are likely to increase supply), while ENO's question wording often cuts the other way. ENO also include questions that reference corporate and developer interests, which may trigger "anti-market bias" and "supply skepticism." An earlier ENO study found that many people don't understand basic economics of housing and don't believe increasing supply is likely to reduce prices, suspecting instead that it will just benefit nefarious financiers and developers.
Interestingly, while the Pew study finds that Democrats are more supportive of deregulatory YIMBY policy than Republicans, ENO find the exact opposite. I think that, too, is an effect of question wording. The ENO questions more often often refer to developers and corporations, thereby triggering left-wing suspicion of capitalist interests.
Activists and politicians love to tout poll results that indicate their positions are popular, while denigrating those that suggest the opposite. I'm a big supporter of YIMBYism, and therefore wish I could say the Pew survey is right and ENO are wrong. But the truth is far more complicated than that. If anything, the ENO study is the more extensive and sophisticated of the two. As a longtime scholar of voter ignorance, I am well aware that many bad policies are popular, and that I myself have many unpopular views.
What the combination of the two studies shows is that public perceptions of housing policy are heavily influenced by frames and question-wording. If you ask about YIMBY policies in isolation, and imply they may increase the availability of housing and reduce costs, you will get strong majority support for them. If you have less favorable question wording, reference capitalist interests, and include questions about increased regulation, you get more negative results.
Similarly, if you frame deregulation as "giv[ing] people more freedom to do what they want with their property," it will get more support than if you frame it as letting developers and other business interests do what they want - even though these two are often the exact same thing! Business interests are owners, too, after all, and one of the things that an ordinary property owner might want the "freedom" to do with her land is sell it to a developer to build new housing that can accommodate more people.
Both the seller and the developer may be motivated by profit, rather than any high-minded desire to increase affordable housing. But, to paraphrase Adam Smith's famous statement about butchers, brewers and bakers: "It is not from the benevolence of the builder and the developer, that we expect our housing, but from their regard to their own interest."
While ENO use a more sophisticated methodology, it's not clear their approach better captures voters' responses to real-world political campaigns. In the real world, voters rarely carefully compare a wide range of policy options with nuanced wording. They often just see or hear about just one or two ideas at a time. Thus, I still think libertarians and YIMBYs would be well-advised to use referenda to promote their policies, in states where it is relatively easy to get questions on the ballot. A referendum question focuses on one policy at a time, and can be worded in a way that creates a favorable frame. Effective framing might also facilitate passage of traditional legislative proposals.
That said, ENO are right to warn that increased public focus on housing issues won't necessarily lead to better policy. Even if more YIMBY reforms get adopted, they may be vitiated by populist policies that actually make housing harder to build:
Our results imply that the more the public tunes in, the more likely it is that the hoped-for balance will be upset by populist candidates demanding stricter rent controls, tighter limits on corporate ownership of housing, and ever more demanding standards for deed-restricted affordability in new projects. Some relaxation of zoning restrictions may be achieved, but its effect is likely to be vitiated by a host of other requirements that make new housing economically infeasible to build.
This warning is well taken. But it doesn't mean YIMBYs should eschew political action entirely, or even that they should always avoid calling greater attention to housing issues. Far from it. still, the threat of ignorance-driven populism should engender some caution. It also reinforces the case for combining political action with strategic litigation, using the Takings Clause of the Fifth Amendment and various state constitutional provisions. Such a combination of strategies has served many previous reform movements well, and could work for this one, too.
In March, the Securities and Exchange Commission (SEC) finalized its long awaited climate disclosure rule, which requires public companies to disclose their greenhouse gas emissions and various climate-related risks to investors as various climate -related risks. According to a majority of the SEC, this information is important to investors, but companies have not disclosed this information adequately in a consistent and accessible fashion. Not all of the SEC Commissioners agreed. (For background on the issues underlying climate disclosure, I recommend this webinar we hosted at CWRU.]
Business groups and conservative states immediately filed suits against the rule--seven suits in total--even though it was less aggressive than some had feared, it remained controversial. Critics charge the rule extends beyond the scope of the SEC's delegated authority and, insofar as investors desire such information, companies have an incentive to provide it. Some have also raised First Amendment concerns about the scope of required disclosure.
Interestingly enough, environmental groups filed suit against the rule too, alleging that the SEC had not gone far enough. In particular, these groups were upset that the SEC dropped a proposal to require companies to disclose information about "Scope 3" GHG emissions (those emissions from suppliers and customers). According to the Sierra Club, for instance, investors would not be able to adequately assess climate-related risks without such information and it was arbitrary for the SEC to drop this aspect of the proposed rule. Two suits were filed. One in the U.S. Court of Appeals for the Second Circuit (NRDC v. SEC) and the other in the U.S. Court of Appeals for the D.C. Circuit (Sierra Club v.SEC).
Even more interesting than the environmental groups' decision to challenge the SEC rule was their subsequent decision to drop the litigation. Both suits were dropped last Friday. Why? According to the filings in each case, the groups had decided to focus their efforts on improving climate disclosure requirements "outside" of court.
The idea that the SEC was legally obligated to include Scope 3 emissions in its climate disclosure rule is quite the aggressive claim. Indeed, most observers believe the SEC dropped this aspect of the rule so as to reduce its legal vulnerability. Particularly in the wake of West Virginia v. EPA, it is hard to imagine that the Supreme Court would look favorably on such an expansive interpretation of the SEC's regulatory authority, particularly insofar as the climate disclosure rules require the disclosure of information that has not traditionally been understood as material to investors under the federal securities laws.
That said, there is a long history of flanking litigation in environmental law. That is, environmental and industry groups often file suits challenging new environmental regulations from opposite directions, and it often appears that some of this litigation is designed to make rules in question seem reasonable. Think of this as a "Goldilocks" strategy: If some say the rule is too weak and others say it's too strong, perhaps it is just right. It is also the case that environmental groups and industry trade associations sometimes file suit (or submit amicus briefs) to show their members that they are fighting the good fight--and justify continuing donations--even when the legal claims are somewhat weak.
It is possible that the environmental groups filed their challenges to the SEC rule to provide this sort of flanking or covering fire for the agency. It is also possible that the suits were filed in an effort to get the case into a sympathetic circuit. After all, some circuit courts of appeal could be considered more favorable terrain for attempts to defend an aggressive environmental regulation.
Consider that the seven "conservative" challenges to the SEC rule were all filed in fairly conservative circuits. Four were filed in the U.S. Court of Appeals for the Fifth Circuit, while the others were filed in the Sixth, Eighth, and Eleventh. The environmentalist suits, on the other hand, were filed in the Second and D.C. Circuits.
The filing of multiple challenges to the SEC rule in multiple circuits meant that the cases would be consolidated and there would be a lottery to determine where the various suits would ultimately be heard as a single case. (For details on how this works, see this post by Josh Blackman about the lottery in the OSHA vaccinate-or-test rule litigation.) By filing suit in the Second and D.C. Circuit, the environmental groups created the possibility that the challenges could be heard in courts that might be inclined to uphold the rule (perhaps by reading the major questions doctrine narrowly).
Whether or not the environmental groups were seeking to influence the lottery, they failed to do so. The Eighth Circuit "won" the lottery, and will hear the consolidated cases as Iowa v. SEC. The Eighth Circuit is a fairly conservative court; only one of the eleven judges in active service (and none of the active senior circuit judges) was appointed by a Democratic president. Perhaps in recognition of how the litigation might go, the SEC stayed the climate disclosure rule in April, so no company will be forced to comply with the new requirements before the litigation runs its course.
The lottery result might well explain the sudden decision by all of the environmental group challengers to drop their suits (particularly if one shares my assessment of the legal arguments that the SEC was legally obligated to adopt a more expansive rule). Filing suits in liberal circuits at least created the opportunity the challenge could be held in a circuit less inclined to stay the rule or hold it to be unlawful. This could, in turn, induce some public companies to increase their climate disclosures during the pendency of the litigation, such that climate disclosures would increase even if the rule were ultimately invalidated by the Supreme Court (as companies would be unlikely to reverse course once they had invested in such disclosures). But now that the case is in the Eighth Circuit--and the SEC has chosen to stay its own rule--there is less reason to devote resources challenging the rule as too lenient.
Whether or not environmental groups filed suit against the SEC rule in an effort to influence the lottery and secure a more favorable forum, other groups may well adopt such a strategy in high-stakes policy-related litigation. Given the number of groups (and states) eager to sue federal agencies, there is ample opportunity for mischief. Indeed, given the way the lottery works--a circuit is chosen even before courts consider jurisdictional questions--litigants who lack Article III standing could file suit in an effort to influence the process. Legal groups will go to great lengths these days to find a way to file suit in a favorable forum, so it only makes sense some might seek out lottery tickets hoping for a more favorable draw.
Earlier today, I published a guest essay on economist Bryan Caplan's popular Bet On It substack, explaining how federal constitutional litigation can play a key role in expanding affordable housing by curbing exclusionary zoning. Here's an excerpt:
In "The Constitutional Case Against Exclusionary Zoning," a forthcoming Texas Law Review article, University of Wisconsin law Professor Josh Braver and I explain how to get there. The Supreme Court can rule that all or most exclusionary zoning regulations that restrict housing construction violate the Takings Clause of the Fifth Amendment….
Braver is a progressive living constitutionalist. I am a libertarian generally sympathetic to originalism. We differ on many issues, but agree here. If we can agree on that, I hope others can too….
In his book, Bryan suggests that a Supreme Court decision striking down exclusionary zoning would have to overturn Village of Euclid v. Ambler Realty, the Court's 1926 ruling upholding it. I would be happy to see Euclid go. But, as described in our article, the Supreme Court could easily rule against exclusionary zoning under the Takings Clause even without overruling Euclid. That's because, technically, Euclid didn't consider the Takings Clause at all. It merely ruled that exclusionary zoning does not violate the Due Process Clause of the Fourteenth Amendment…. A future court ruling could make clear that Euclid only applies to the Due Process Clause (something the Supreme Court already suggested in a 2005 decision)….
If the Supreme Court rules that exclusionary zoning regulations are takings, governments would have to pay "just compensation" to affected property owners (usually defined as the "fair market value" of the property right in question). Few if any local governments could afford to compensate all of the many thousands of property owners currently barred from building high-rise or multifamily housing on their land by single-family zoning requirements and other exclusionary rules….
Federal constitutional litigation is far from the only way to deregulate housing, and should not be pursued to the exclusion of other strategies. In recent years, several state and local governments have enacted deregulatory legislation. Montana is a notable example. State constitutional litigation might be another useful tool….
These other options should be pursued. But federal-court judicial review has important unique advantages. State-by-state reform efforts cannot curb exclusionary zoning nationwide, at one fell swoop. A Supreme Court Takings Clause decision can take a major step in that direction. In addition, state-based reforms are often blocked or watered down by strong "NIMBY" ("not in my backyard") opposition, and by widespread public ignorance about the true effects of zoning restrictions…..
Federal judicial review can also help overcome various local government attempts to circumvent zoning reform, and forestall efforts to use state-constitutional "home rule" provisions to block it….
Historically, successful constitutional reform movements have relied on a combination of litigation and political action, rather than focusing on one approach to the exclusion of others. That was true of the civil rights movement, the women's rights movement, same-sex marriage advocates, gun rights, and such successes as property rights advocates have had in recent years. YIMBY housing advocates would do well to learn from this history….
Many thanks to Bryan for letting me do a guest post, and for his important work on housing issues.
Something like the idea animating The Collective-Action Constitution—or a narrower, more implicit, and more intuitive version of it—has been around for a long time and has been articulated in many places. At the Philadelphia Convention and state ratifying conventions, and in public essays and private correspondence, Madison, Hamilton, Wilson, Washington, and other prominent nationalists emphasized both the need for federal power in cases of general interests, separate state incompetence, or regulatory disuniformity and the need to stop states from creating interstate problems. The Constitution was drafted and ratified primarily to achieve these goals, not to limit federal power or to protect state authority or individual liberty.
John Marshall was at the Virginia ratifying convention, and collective-action reasoning supports—and may have informed—canonical federalism decisions of the Marshall Court. The most important example is McCulloch v. Maryland (1819), which embodies the book's argument. The Court upheld federal power to create a national bank as convenient to carrying into execution federal powers that solve collective-action problems for the states, and prohibited states from causing collective-action problems by taxing the bank. Another example is Gibbons v. Ogden (1824), which upheld federal power to regulate navigation under the Interstate Commerce Clause, thereby preventing states from causing collective-action problems by granting monopoly power over navigation routes.
Over the nineteenth century, federal courts helped entrench a political and economic union by policing state protectionism. Collective-action reasoning supported and likely influenced their invalidation of state laws under the dormant commerce doctrine, which today limits the extent to which states can cause collective-action problems by being protectionist or burdening interstate commerce.
In the early twentieth century, the federal government made—and the Supreme Court rejected—collective-action arguments in important federalism cases. One example is Hammer v. Dagenhart (1918), which invalidated a federal ban on the shipment in interstate commerce of goods produced by child labor. The Court there blessed a regulatory race to the bottom. A distinguishing feature of the Court's federalism jurisprudence from the late 1800s to the 1930s was its frequent rejection of the idea that multistate collective-action problems partially justify federal power.
Informal expressions of the collective-action concept ramped up during the New Deal and Great Society. Robert Stern, a lawyer for the federal government who overcame anti-Semitism to build a great life in the law, authored a stunning law review article that presaged modern theorizing about the relationship between the Interstate Commerce Clause and the regulation of multistate collective-action problems. Certain Supreme Court briefs filed by the federal government during the Great Depression reflected Stern's research and thinking. (See pages 7-8 of The Collective-Action Constitution for citations.) Perhaps relatedly, collective-action rationales seemed to inform transformative federalism decisions of the Court during the constitutional crisis of the New Deal, just after the "switch in time that saved nine" in 1937: NLRB v. Jones & Laughlin Steel Corporation, Steward Machine Company v. Davis, and Helvering v. Davis.
During the post-New Deal era that reoriented constitutional law, the Court invoked collective-action logics in justifying Congress's power to regulate interstate commerce. One example is United States v. Darby (1941), which overruled Hammer v. Dagenhart in upholding federal minimum-wage and maximum-hours regulations of manufacturers of goods shipped in interstate commerce. Another example is Wickard v. Filburn (1942), which validated Congress's attempt to raise the price of wheat on the interstate market by upholding a federal wheat-production quota as applied to a farmer who exceeded his quota but used the excess wheat for home consumption and livestock feeding. The Court also implicitly used collective-action thinking in continuing to invalidate state laws under the dormant commerce doctrine in such cases as H.P. Hood & Sons, Inc. v. Du Mond (1949).
Similarly, collective-action reasoning supports the Court's decisions upholding the Civil Rights Act of 1964 just after it was passed. This is (of course) not because collective-action problems impeded the ability of all states, Southern ones included, to champion racial equality and facilitate the interstate mobility of African Americans. Rather, the Court's decisions in Heart of Atlanta Motel, Inc. v. United States (1964) and Katzenbach v. McClung (1964) were lawful because Southern racism impeded the ability of most other states to protect interstate travel by African Americans, and the Interstate Commerce Clause lets Congress settle disagreements among states about whether collective action is warranted in the commercial sphere—and to pursue this goal when accomplishing it would benefit the rest of the states more than it would harm majorities of the electorate in Southern states. To act, Congress need not first prove empirically that all states have been trying and failing to pursue the regulatory regime in question; like in Darby and Wickard, it suffices for Congress to rationally conclude that the states face a cost-benefit collective-action problem.
The current era saw an increase in use of the collective-action idea on and off the Court. One example is United States v. Lopez (1995), where the Court likely sensed the absence of a multistate collective-action problem within a reasonable time horizon. For the first time since the 1930s, the Court declared a federal law—a ban on firearms possession in school zones—beyond the Interstate Commerce Clause. Another example is Gonzales v. Raich (2005), where the Court seemed to offer a collective-action rationale in holding that Congress can use its interstate-commerce power to prohibit the local cultivation and use of marijuana in compliance with state law permitting such use. As in Wickard, the Court deemed reasonable the federal government's concern about diversion of the regulated products across state lines—cost externalizations that Congress could reasonably deem to exceed internalized benefits.
Turning to contemporary legal scholarship, collective-action reasoning has explicitly appeared in the writings of an ideological diverse group of constitutional law scholars, judges, and attorneys, most of whom have focused on the Interstate Commerce Clause. Prominent examples include Michael McConnell, Jacques LeBoeuf, Donald Regan, Richard Levy, Robert Bork and Daniel Troy, Maxwell Stearns, Akhil Amar, Stephen Williams, Jack Balkin, Andrew Koppelman, and Stephen Calabresi. Robert Cooter and I expanded the scope of analysis from the Interstate Commerce Clause to Article I, Section 8. (For citations, see pages 10-11 of the book.)
So, even judging from this incomplete sketch of the role of collective-action reasoning in American constitutional thought over the past two-plus centuries, it seems fair to describe this idea as important, enduring, and, at times, influential.
It is revealing that collective-action thinking has a history; if it were entirely novel, it could not provide the basis for a persuasive structural theory of the Constitution. To date, however, the idea has not been examined rigorously and comprehensively. As noted, past discussions have been relatively casual, implicit, or intuitive. Or they have lumped collective-action problems together with other concepts such as interstate externalities, without distinguishing among different kinds of collective-action problems or specifying the analytical relationship between them and spillover effects. Or else they have focused on specific constitutional provisions, especially the Interstate Commerce Clause.
The Collective-Action Constitution leverages conventional legal and historical materials, as well as concepts and insights from political science and economics, to examine the extent to which collective-action logics illuminate the Constitution as a whole—the document, its Founding history, its underlying structural principles, and its evolving interpretation outside and inside the courts. The book's conclusion is that a collective-action account has significant explanatory power descriptively and normatively, but that it also has limits. Identifying the limits of the theory is as important as identifying its promise, because the limits help define the idea of collective action more sharply and give it greater explanatory power where it does apply. The book shows the great extent—previously underappreciated—to which the Constitution empowers the federal government to solve collective-action problems for the states and prohibits states from thwarting federal solutions to such problems or generating them.
The book also clarifies the contexts in which other rationales are required to justify federal power, especially legislative and judicial protection of most constitutional rights. Rights protection concerns how a state relates to its own inhabitants, which is a different question from how it relates to sister states or the federal government. Accordingly, the Collective-Action Constitution must be supplemented with what the book calls the Reconstruction Constitution to capture the functions of the Constitution more fully in modern America. Even regarding rights protection, however, the book argues that collective-action reasoning plays a role.
This year marks the 100th anniversary of one of the worst laws in American history: the 1924 Immigration Act. This was the law that ended the era when most immigration was presumptively legal, and shifted to the opposite presumption: that most would-be immigrants are presumptively barred from the United States. My Cato Institute colleague David Bier, a leading immigration policy expert, summarizes some of its awful consequences:
America is often said to have two "foundings": the first after the Revolution and the second after the Civil War with the abolition of slavery….. but there is a third "founding" that occurred in 1924—one that changed the future of America almost as much as these other foundings. Unlike the first two, America's third founding was fundamentally illiberal, inspirational to Hitler, and a rejection of America's first two foundings.
The third founding occurred on May 24, 1924, when President Calvin Coolidge signed the National Origins Quota Act, which imposed the first permanent cap on legal immigration. Prior to the 1924 Act, all would‐be immigrants were presumed eligible to immigrate unless the government had evidence showing that they were ineligible. The 1924 law replaced this system with the guilty‐until‐proven‐innocent, Soviet‐style quota system that we have today.
No law has so radically altered the demographics, economy, politics, and liberty of the United States and the world. It has massively reduced American population growth from immigrants and their descendants by hundreds of millions, diminishing economic growth and limiting the power and influence of this country. Post‐1924 Americans are not free to associate, contract, and trade with people born around the world as they were before.
The legal restrictions have erected a massive and nearly impenetrable bureaucracy between Americans and their relatives, spouses, children, employees, friends, business associates, customers, employers, faith leaders, artists, and other peaceful people who could contribute to our lives. It has made the world a much poorer and less free place for Americans and people globally, necessitating the construction of a massive law enforcement apparatus to enforce these restrictions….
The number of new legal immigrants as a share of the US population plummeted after 1924, and it has only slowly recovered. If the United States had granted legal permanent residence at the same per‐capita rate that it did from 1900–1914—before World War I disrupted travel—another 164 million immigrants would have been permitted to settle in the United States legally. Many of these immigrants would have ultimately returned to their home countries, as they did in great numbers even before airlines shrank the globe….
A century of freer immigration would have made the United States a vastly wealthier, freer, stronger, and more powerful country, while also raising hundreds of millions globally out of poverty and freeing hundreds of millions more from tyranny. The implications are too massive to summarize quickly, but Cato's Alex Nowrasteh has written an excellent alternative history, exploring some less obvious implications for US and world history had immigration not been cut off.
The most obvious harm caused by the 1924 Immigration Act was consigning many millions of would-be immigrants to a lifetime of poverty and oppression in their countries of origin. The most notorious example is that of Jews fleeing Nazi Germany, such as Anne Frank and her family. But there are many, many other examples, too.
As David Bier notes, the Act also did great harm to native-born Americans by depriving them of the economic growth, productivity, and innovation that immigration produces, and reducing America's power and influence in the world. Immigrants contribute disproportionately to scientific innovation and entrepreneurship. More generally, immigration restrictions severely constrain the economic freedom and civil liberties of natives, as well as that of would-be migrants themselves.
Ironically, the main groups targeted for exclusion under the 1924 Act were migrants from eastern, southern, and central Europe: Italians, Jews, Poles, Greeks, and others. Today, most Americans, including even most conservative immigration restrictionists, think of these groups as indisputable parts of the American mainstream. But, back then, nativists raised complaints against them similar to those now raised against Hispanic migrants. Jews, Italians, and others were said to be unassimilable, prone to crime, competitors for jobs, threats to national security, agents of nefarious foreign governments, and a menace to American values and culture.
Some of the worst elements of the 1924 Immigration Act were eventually repealed, especially in the 1965 Immigration Act. But, as Bier points out, the 1965 Act and subsequent legislation still retain key features of its predecessor, such as "a presumption against legal immigration, a low overall cap, country‐by‐country caps, and a preference for family unity." And we still have a system where the vast majority of would-be migrants have little or no chance of ever being allowed to enter legally.
The 1924 Act was not the first major federal immigration restriction. That dubious distinction belongs to the deeply racist Chinese Exclusion Act of 1882, which barred most Chinese immigration, and led to an awful Supreme Court decision giving the federal government a general power to restrain migration, despite the fact no such authority is enumerated in the Constitution. But the 1924 Act generalized the presumption of exclusion to a vast range of additional countries, making it applicable to migrants from most of the world.
Conservative Boston Globe columnist Jeff Jacoby has additional thoughts on the awfulness of the 1924 Act and its legacy here.
[We hold that] the Fearless Strivers Grant Contest, an entrepreneurship funding competition open only to businesses owned by black women, [likely] violates 42 U.S.C. § 1981, which prohibits private parties from discriminating on the basis of race when making or enforcing contracts …, [and] is … unlikely to enjoy First Amendment protection ….
[The] stated mission [of Fearless Fund] is to "bridge the gap in venture capital funding for women of color founders building scalable, growth aggressive companies." In pursuit of that mission, Fearless supplies grants to businesses under its "Foundation" arm. Fearless makes those grants on the basis of a competitive application process.
The "Fearless Strivers Grant Contest" offers four winners $20,000 apiece and digital tools to assist with business growth, as well as mentorship….
The panel majority began by concluding that the contest is likely covered by 42 U.S.C. § 1981, a federal law that has been read as generally banning race discrimination (but not discrimination based on sex, religion, sexual orientation, and so on) in all public or private contracts (not just employment, public accommodations, education, and the like):
The Collective-Action Constitution blends law, history, political science, and economics to offer a broad, deep theory of the U.S. Constitution's federal structure. The book argues that the Constitution's primary structural purpose, both originally and today, is to empower the federal government to solve collective-action problems for the states and to prevent the states from undermining these solutions or causing such problems. Any faithful account of what the Constitution is for and how it should be interpreted should include this main structural function.
The Constitution was established principally because of the widely recognized failures of its predecessor, the Articles of Confederation, to adequately address multistate collective-action problems. These problems included funding the national government, regulating foreign and interstate commerce, and defending the nation. Such challenges are called collective-action problems because the states needed to act collectively, not individually, to solve them, and they often struggled to do so. By empowering Congress to solve collective-action problems and by creating a national executive and judiciary to enforce federal law, the Constitution promised a substantially more effective federal government.
In a fundamental sense, the U.S. Constitution is the Collective-Action Constitution. If Americans do not recognize this truth, government cannot adequately address the sobering problems facing America today. Examples include foreign aggression, immigration, terrorism, nuclear proliferation, inadequate access to health care, climate change, pandemics, opioid addiction, gun violence, racism, other bigotry, income inequality, and political extremism.
State governments can address aspects of these problems. The states are the default regulators in the American system, and they can handle many problems entirely or partially on their own. But states acting individually cannot succeed in solving the above problems no matter how effective their governance structures or political leaders are. The problems are too large—their scope transcends state borders. To solve them, the states must act collectively, not just individually.
Some states may succeed in acting collectively to some extent by creating interstate compacts or informal agreements if they can unanimously agree. There are contemporary examples of even many states acting collectively. But it is increasingly likely that states will fail to act collectively as the number of states that must cooperate or coordinate rises, and the number of states required to act collectively increases with the scope of the problem. According to the book's arithmetic, only around 200 interstate compacts exist today, and the median number of states per compact is 3. Moreover, even when some states do act collectively, they may harm other states or the federal government, and they may trigger disagreements over whether they are solving or creating a collective-action problem. These concerns explain why the third clause of Article I, Section 10, presumptively prohibits interstate compacts and requires Congress to approve them.
As noted, this is not the first time that the states have needed to act collectively to overcome daunting challenges. Under the Articles of Confederation, the Confederation Congress had no dependable source of tax revenue. It also lacked the powers needed to protect the states from commercial and military warfare waged by European powers, and from commercial (and potentially military) warfare waged by one another. The states proved largely unable to solve these difficulties on their own. They mostly acted individually when then needed to act collectively, and the most influential and insightful of the Constitution's Framers—including James Madison, Alexander Hamilton, James Wilson, and George Washington—concluded from experience that the states could not reliably achieve an end when doing so required two or more of them to cooperate or coordinate.
The solution they proposed was to establish a more comprehensive unit of government—a national government with robust authority to tax, regulate interstate and foreign commerce, raise and support a military, conduct foreign relations, perform other vital functions, and act directly on individuals, not indirectly through the states. The Constitutional Convention of 1787 thus instructed its Committee of Detail, which drafted constitutional text reflecting the decisions of the Convention, that Congress would possess power "to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation." Called Resolution VI, the Committee took this language and, to actualize its primary objectives in more determinate form, produced Article I, Section 8, home to most of Congress's legislative powers. The Convention adopted Section 8 without much controversy. State ratifying conventions made Section 8 and many other constitutional provisions and principles that share its purposes "the supreme Law of the Land," to quote Article VI.
Supporters of the Constitution did not reference the modern term "collective-action problems," but many came close, including in Resolution VI. More importantly, they knew such problems when they saw them. When certain activities spilled over from one state to another, nationalist Founders recognized that the uncooperative or uncoordinated actions of individual states produced harmful results for the nation as a whole—the definition of a collective-action problem. In the system the Constitution created, the federal government is designed to be the smallest unit of government that fully internalizes the effects of these spillovers. Because the federal government can internalize the effects, and because it operates through (super)majority rule rather than unanimity rule, it will often be structurally better situated than the states to solve collective-action problems caused by intestate spillovers.
Such collective-action problems take three forms. First, cooperation problems arise when all members of a group of states prefer that every member cooperate rather than that every member not cooperate, but some or all group members prefer to achieve their most desired outcome without in effect paying for it—they prefer not to cooperate while others do. The Prisoners' Dilemma, a famous example of this kind of collective-action problem, captures situations in which states "free ride" off the contributions of other states to collective action or "race to the bottom" because some states disadvantage themselves relative to others by regulating businesses or individuals in ways that other states do not.
Second, coordination problems arise when some or all states would need to coordinate their behavior to solve a problem but there are multiple ways of doing so and there may be disagreements about how to do so. For example, creating national networks of transportation and communication would require the states to coordinate their regulatory behavior.
These classic collective-action problems of game theory can be called "Pareto collective-action problems" because all states would be better off by their own estimations if collective action succeeded. Given the number of states and the extraordinarily demanding requirement (called Pareto optimality) that all states be better off, Congress would almost never be able to act if it were authorized to solve only Pareto collective-action problems.
By contrast, a third category of collective-action problems, which The Collective-Action Constitution calls "cost-benefit collective-action problems," refers to certain situations in which some states would regard themselves as better off if collective action succeeded but other states would deem themselves worse off. Almost all multistate collective-action problems in U.S. history are of this variety. (For example, Rhode Island boycotted the Constitutional Convention.) When collective-action reasoning is relevant to the scope of federal power, Congress, as only governmental institution in which all states and individuals are represented, is authorized to resolve disagreements among states over whether collective action should succeed if Congress rationally determines that its intervention would help the one group of states more than it would harm the other. This requirement is called cost-benefit optimality. When the book references multistate collective-action problems, it includes both Pareto and cost-benefit collective-action problems.
Managing collective-action problems is not the Constitution's only structural function, and The Collective-Action Constitution honors the additional purposes of preserving state regulatory authority and separating and mixing federal powers to make the exercise of federal authority safe for state autonomy and individual liberty. Vindicating these purposes requires constitutional and practical limits on federal power, and the book endorses many of them. But when constitutional meaning is uncertain and there are conflicts among these purposes, the Constitution's collective-action objective should generally prevail. To a significant extent, the Constitution is the Collective-Action Constitution—both because a collective-action account possesses significant descriptive power originally and today, and because it is normatively attractive. The main goal of the Collective-Action Constitution is not to achieve economic efficiency, but to sustain political and economic union.
The book argues that the structural elements of the Constitution should be interpreted in a way that empowers the federal government to address collective action problems facing the states.
I am pleased to announce that Professor Neil Siegel (Duke University School of Law) will be guest-blogging this week about his important new book The Collective-Action Constitution. Neil is a prominent and widely cited scholar on a variety of structural constitutional issues, and his new book is a major contribution to the field. It is of obvious interest to students of federalism, constitutional theory, and related issues.
Here is the description provided by the publisher (Oxford University Press):
The United States Constitution was established primarily because of the widely recognized failures of its predecessor, the Articles of Confederation, to adequately address "collective-action problems" facing the states. These problems included funding the national government, regulating foreign and interstate commerce, and defending the nation from attack. Meeting such challenges required the states to cooperate or coordinate their behavior, but they often struggled to do so both inside and outside the Confederation Congress. By empowering Congress to solve collective-action problems, and by creating a national executive and judiciary to enforce federal law, the Constitution promised a substantially more effective federal government.
An important read for scholars, lawyers, judges, and students alike, Neil Siegel's The Collective-Action Constitution addresses how the U.S. Constitution is, in a fundamental sense, the Collective-Action Constitution. Any faithful account of what the Constitution is for and how it should be interpreted must include the primary structural purpose of empowering the federal government to solve collective-action problems for the states and preventing them from causing such problems. This book offers a thorough examination of the collective-action principles animating the structure of the Constitution and how they should be applied to meet many of the most daunting challenges facing American society today.
Back in 2011, I wrote a Jotwell essay recommending and reviewing the law journal article (coauthored by Neil with Robert Cooter) that first presented the argument developed far more extensively in the book.
We welcome Neil, and very much look forward to his guest posts!
This was written shortly after the death of Navalny (a leading Russian dissident) in a Russian prison in February, but I just heard it yesterday. The words were written by Leonid Kaganov, and the performer is the prominent Russian musician Vasia Oblomov (the stage name of Vasiliy Goncharov), who now lives in the U.S.
Here's my attempt at translation:
Now, far from here there lies an empty grave.
We waited for a miracle; well, this was it.
It spoke to us, gave us faith as a gift
By deeds and words, irony and example.
For us was performed again the Biblical evil drama,
Where they heal with a word and chase the frauds from the temple,
Where to be loved by millions, they submit to the prejudged indictments,
Surrender to the Sanhedrin, to be crucified on Friday—
For their not tolerating falsehood, for their passion for the cause,
And who can be surprised that the earthly body has vanished?
But the spirit will be resurrected on the screens and arises as a living icon,
And the tyrants will tremble under the thick concrete prison beds,
It's often instructive to compare entries in older and newer versions of Black's Law Dictionary—and on subjects I work on, the older ones are usually better. An example is the entry for equity.
Compare the fourth (1968) and eleventh (2014) editions. In particular, note that the older entry for equity (1) emphasizes more that equity is constrained internally, but also (2) emphasizes that equity is distinctive. The newer definition does not emphasize equitable constraints to the same degree, and it positively denies that equity is distinctive.
Both present equity as historically contingent (that's good). But the newer entry is much more equity skeptical--suggesting it is a pointless historical appendix, no longer connected to natural justice and no longer having any distinctive job to do. That is consistent with the regrettable epigram at the beginning of Reading Law, which quotes a false dichotomy from a great anti-equity lawyer of the eighteenth century. The older definition also gives more of the texture of equitable doctrine, including a brief elaboration of the three jurisdictions of equity, though without using the word ("That part of the law which . . . .").
One other interesting feature of the newer entry is that it can't be justified on the grounds that it cites more current authority. It reflects a sharply different conception of equity and its place within the contemporary legal firmament. But it does not rely on newer authority--I think no authority more recent than 1968 is even cited.
Most debates about judicial reform are predictable and pointless. Progressives, who are unhappy with the current right-leaning judiciary, propose reforms that make it harder for conservatives to prevail in court. Conservatives, who are pleased with the current right-leaning judiciary, oppose reforms that make it harder for conservatives to prevail in court. The federal courts cannot be reformed through unilateral disarmament. Rather, any federal judicial reform must be bilateral.
My new Article, titled Bilateral Judicial Reform, offers ten neutral proposals that would equally weaken the right and the left. The article will be published in the Texas A&M Journal of Law and Civil Governance.
Most of these reforms, including expansion of mandatory jurisdiction, would require statutory amendments, though some proposals could be achieved through court rules. Here at least, I'm agnostic where the reform comes from. It is always better if courts self-regulate. I'll admit up front that some of these proposals are off-the-wall, and are primarily intended to stimulate debate, rather than to create a decisive action plan. A few of these proposals may create problems with judicial independence and the separation of powers, though I think they ultimately pass muster, or at least occupy a gray zone. My hope is that through some outside-the-box thinking, I can put ideas into the ether that eventually coalesce into tangible proposals.
This article is still in draft form, so I welcome feedback and comments.
Part I introduces the first grouping of reforms about the Supreme Court Justices.
Proposal #1: Require Justices to ride circuit and preside when federal courts of appeals sit en banc.
Proposal #1 would bring the Justices closer to the inferior courts, and to the people. Under this proposal, whenever a circuit court sits en banc, the circuit justice would preside. Should the case then be appealed to the Supreme Court, the Circuit Justice would not need to recuse. And unlike the current practice, the circuit justices would rotate each year, so each member of the Court would, over time, visit courts throughout the nation. This proposal would promote both vertical and horizontal judicial comity. Moreover, the Justices may get a better sense of which petitions warrant a grant by hearing from colleagues on the lower court.
Proposal #2: Impose statutory caps for outside income earned through book royalties, advances, and other similar business dealings.
Proposal #2 limits a Justice's ability to profit off their position. In recent years, new Justices have signed lucrative book deals that pay millions of dollars. While there are caps on how much Justices can earn from outside sources, there is a glaring loophole for advances on royalties. As a result, book publishers can give a Justice what is in effect an indefinite interest free loan that is ten times greater than their annual salary. In theory at least, the Justices would have to pay back any unearned royalties, but I am skeptical that loan would ever be called on during a Justice's life. I am confident that outside groups will feel pressure to buy copies of the book to ensure a Justice's attendance at a public event, and book signing. There is no way to avoid this conflict when the pressure exists to repay the royalty advance. Proposal #2 would simply include advances on royalties in the current cap on outside income. The Justices can continue to write books, but cannot earn millions of dollars off the prestige of their judgeships. If the Justices lose the motivation to write books without cushy royalty payments, they can use that found time to read more cert petitions.
Part II introduces the second grouping of reforms about the Supreme Court's docket.
Proposal #3: Mandate that the Supreme Court remains in session year-round, with at least one public sitting for oral argument and one conference per calendar month.
Proposal #3 would eliminate the current October-June schedule. Instead, the Justices would remain in session year-round. Each month, the Justices would hold at least one public sitting for oral argument, which would entail at least one conference to vote on the argued cases. This proposal has several virtues. The Justices would no longer feel compelled to rush out a decision argued in April by the end of June, solely to meet some artificial vacation-induced deadline. This proposal would also allow the Court to grant cert petitions year round, and avoid the dead pool that is the long conference. This proposal can be implemented by the Court on its own, or through Congress.
Proposal #4: Establish a standard timeline for review of petitions and applications on the merits, emergency, and capital dockets.
Proposal #4 would make the Supreme Court's calendar more predictable, as the Justices would follow a timeline to resolve cases. First, on the merits docket, the Court would have to rule on a petition for certiorari within ninety days after it is filed. If the court does not act on the petition within that window, the petition would be denied as a matter of law. Second, if the Court fails to act on an emergency application on the emergency docket within the span of two weeks, the application will be denied as a matter of law. Third, on the capital docket, emergency appeals that are filed less than six days before the death warrant expires would (generally) be denied as a matter of law. (I say generally because there are exceptions.) This proposal would severely curtail the eleventh hour filings that force the courts to rush through capital cases in limited time.
Proposal #5: Appeals in the Court's mandatory jurisdiction must be scheduled for oral argument.
Proposal #5 would require the Court to hold oral argument for any case in the mandatory jurisdiction. (And Proposals #8 and #9 below will further expand the Court's mandatory jurisdiction.) In theory at least, the Court could still issue a one-sentence summary affirmance of a mandatory jurisdiction case. But I suspect that going through the motions of oral arguments will trigger the Justices to develop a fully-reasoned opinion. (I am less confident that Congress could mandate that the Justices write an opinion of some length in any particular case.)
Part III introduces the third grouping of reforms about litigation in the lower courts.
New York state courts must rule quickly and separately, if they can under New York law, on the constitutionality under the First Amendment of President Trump's recent criminal convictions.
As I wrote earlier on this blog site, President Donald Trump's First Amendment freedom of speech rights render his recent convictions in a Manhattan New York State trial court unconstitutional. The unconstitutional trial that President Trump was subjected to occurred in the most liberal borough, of the most liberal city, of one of the most liberal States in the country. This unconstitutional trial has poisoned the ongoing federal presidential election of 2024 based on a misinterpretation of federal election law making immediate federal Supreme Court review essential. The New York Court of Appeals must rule quickly on the constitutionality of President Trump's convictions, so that President Trump can get federal Supreme Court review of his First Amendment claims well before the November presidential election. American voters deserve to know as fast as possible if President Trump's criminal convictions are unconstitutional, as I believe them to be.
There are many issues of state law on which President Trump can and should appeal his convictions due to the improper behavior of both the trial judge and the district attorney. But, it is imperative that those issues be separated, if possible under New York law, from the federal question of the violation of President Trump's First Amendment rights so that that issue can be addressed quickly by the federal Supreme Court. President Trump should ask for a bifurcated appeals process whereby his First Amendment federal question gets ruled on immediately by the New York Court of Appeals, even as a longer appellate process takes place to consider President Trump's many New York State law claims on appeal.
28 U.S.C. Section 1257(a) provides that: "Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari *** where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of*** the United States." President Trump's claim that his recent convictions are in violation of the First Amendment are reviewable by the federal Supreme Court by a writ of certiorari once the New York Court of Appeals has ruled on them.
It is clear under U.S. Supreme Court caselaw that President Trump need not exhaust all of his many appeals under New York State law before the U.S. Supreme Court can rule on his First Amendment freedom of speech claims. In Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), the Supreme Court held that a ruling by the highest court of a State on a federal question is a "Final judgment" even if there may still be state court proceedings going on under which President Trump could get his convictions reversed.
In fact, the Supreme Court in Cox Broadcasting v. Cohn said that "There are now at least four categories of *** cases in which the Court has treated the decision on the federal issue as a final judgment for the purposes of 28 U.S.C. Section 1257 without awaiting the completion of *** additional proceedings in the lower state courts." One such category is present here where President Trump's nationally important federal question as to the First Amendment might escape U.S. Supreme Court review if Trump prevails on one of his many State law grounds of appeal. See also Michigan v. Long, 463 U.S. 1032 (1983) and Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 (1945) liberally construing the Final Judgment rule of 28 U.S.C. Section 1257(a).
As a matter of comity in our federal court system, it would be unconscionable for the New York State appellate courts to do anything other than to expedite U.S. Supreme Court review of President Trump's federal constitutional claims. American voters need to know as fast as possible whether the federal Supreme Court thinks the convictions produced in the most left-wing jurisdictions imaginable are, or are not, constitutional.
Susan Sullivan wrote an op-ed in the Philadelphia Inquirer, titled "I was a law clerk for Justice Alito. He must recuse himself from hearing cases involving Donald Trump." The subheadline is, "Flying the U.S. flag upside down, once a signal of distress, has become a symbol of those who reject the results of the 2020 presidential election. When Alito did so, it was indeed a distress call."
The op-ed introduces nothing new or original. She cites the New York Times reporting as gospel, and spends paragraphs talking about Dobbs, which has nothing to do with the flag. Let's be clear. The only reason why Sullivan placed this op-ed is that she is a former law clerk for Justice Alito. The only thing the press loves more than a conservative who criticizes conservatives is someone who worked for a conservative who criticizes her former conservative boss. Look no further than the endless stream of former people in Trump world who attack Trump.
Who is Susan Sullivan? I had never heard of her. She is an Assistant Professor in the Temple University College of Liberal Arts. She teaches classes in criminal procedure, constitutional law, and the Supreme Court. Her biography includes these lines:
Professor Sullivan graduated from Rutgers Law School, Order of the Coif in 1990. Following law school, she clerked for a federal Judge on the Third Circuit Court of Appeals (now a US Supreme Court Justice), and then practiced law as a litigator for in excess of ten years in New York and in San Francisco.
She can't even bring herself to say the name Samuel Alito in her biography. Say his name! She is willing to take the credit for the clerkship, but then throws her boss under the bus.
She describes herself this way in the Inquirer:
As a former law clerk to Justice Samuel A. Alito Jr., I often admired him as a person for his integrity and honesty. As a progressive liberal, however, I vehemently disagreed with the approach he takes to reading the Constitution, the narrow interpretation he adopts, and his reverence for the framers 'restrictive intent.'
Is it normal to say you "often" admire a judge you clerked for? When did you not?
Professor Sullivan has a special connection to Justice Alito and abortion. She graduated Rutgers in 1990, and began her Third Circuit clerkship in the fall of 1990, and finished in the summer of 1991. Planned Parenthood v. Casey was argued before the Third Circuit in February 1991, which was smack dab in the middle of Sullivan's clerkship. As all know, then-Judge Alito would have upheld the spousal notification privilege that the Casey plurality deemed unconstitutional.
In 2006, when Alito was nominated, Sullivan offered some faint praise for Alito:
Susan Sullivan of San Francisco clerked for Alito during the year he wrote his controversial Casey opinion, upholding portions of a Pennsylvania statute restricting abortion, a decision later overturned by the Supreme Court. Sullivan, who describes herself as "a social progressive who is pro-choice and anti-death penalty," says, "In general I would react with suspicion to any nominee of this administration. But having worked with him, I know he does not work toward a specific result. He is not intent on advancing his own agenda. He approaches cases in a very impartial way."
Jim Goneia and Susan Sullivan met while clerking for Judge Alito in 1990-91. They are now married, with two children. Their 9-year-old son says, "I like Judge Alito. If it weren't for him, I wouldn't exist."
Both Jim and Susan describe themselves as "social progressives" and they are both "pro-choice." But they adamantly support Judge Alito. And it's not just because of their son's existence, as good a reason as that might be. . . .
They both served with Alito during the Casey decision. And Susan replied that she would feel the same way if Roe is overturned that she did when she read Alito's dissent in Casey: she didn't agree, but she respected the process he went through to arrive at his decision.
She added that while on the 3rd Circuit, Judge Alito has both affirmed and applied Roe. . . so she doesn't believe anyone knows how he will rule in a specific case. And the fact that he has written opinions that are popular with some, and decisions that are popular with others shows his impartiality.
But things have changed. The clerk reunion will be a bit awkward.
There is a reason why conservative judges, in particular, have to screen out law clerks--progressive students will take the job, and the prestige, then proceed to attack their former boss to media plaudits.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
