The Volokh Conspiracy

In December 2022, the Supreme Court heard the latest iteration of a case styled as United States v. Texas. This dispute concerned the Biden Administration's 2021 memorandum that "prioritized" immigration enforcement. (I'll get into the details later). The trial court found that Texas had standing, and vacated the policy. The Fifth Circuit declined to stay an injunction. The Supreme Court granted certiorari before judgment.

After oral argument, my prediction was that the final vote would be very fragmented. A majority of the Court seemed inclined to rule against Texas, but there was no obvious consensus on why the states lacked standing. Moreover, several Justices seemed uncomfortable with the argument pressed by the Solicitor General that Section 706 of the APA did not support so-called "national vacaturs."

The Court decided this case on Friday. The bottom line is that eight justices ruled against Texas, and only Justice Alito would have affirmed the lower court. But the majority really fractured 5-3. Justices Gorsuch, Thomas, and Barrett found that the plaintiffs lack standing on redressability grounds. They contended that 8 U. S. C. § 1252(f)(1) prohibits injunctions against certain immigration laws, including those at issue in this case. Because the Court couldn't remedy the alleged injuries, the concurring justices found, the Court lacked jurisdiction. But Justice Kavanaugh, writing for the Court, did not rely on redressability. Instead, he found that the plaintiff states did not have a "judicially cognizable" injury--the sort of injury that the federal courts "traditionally" have recognized.

I'll admit, when I first digested this case, I couldn't quite figure out why the majority chose this path. My first inclination was that the Court was trying to close the door on strategic litigation brought by red states against blue administrations. There is certainly some language to that effect, but there is some other language that limits the Kavanaugh opinion to the specific facts presented in this case. (More on the specifics later). Now, my working hypothesis is that the Court simply couldn't come to an agreement on one key issue: could a national vacatur redress a cognizable injury? Justices Thomas, Gorsuch, and Barrett, who cast doubt on the entire notion of a national vacatur, suggest the answer to this question is no. Therefore, Texas has to lose. But the majority does not even touch the redressability prong because they resolve the case on the injury prong. And in doing so, they leave open the question of whether federal courts can issue national vacaturs--and more importantly, whether the availability of a national vacatur can satisfy the redressability prong.

Rather, the majority seized upon a super-specific rationale that will not apply in any other circumstances. That's the only way I can count to five. The Court's progressives do not want to block off progressives using national vacatur to challenge a future Republican administration, and the Chief and Kavanaugh are still partial to D.C. Circuit, which vacates five rules before breakfast. Thus, the majority needed to find a rationale--any rationale really--that would deny Texas standing without trickling into other future disputes. So Justice Kavanaugh latched onto Linda S. v. Richard D. (1973), which he raised during oral arguments.

As promised, more details will come later.

It's based on amicus briefs that Michael Dorf (Cornell), Andrew Koppelman (Northwestern), and I filed in past cases (and that I blogged about before), but it elaborates somewhat further on that argument. There's still time to make changes, so I'd love to hear people's responses; you can also read it in PDF.

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Anti-BDS laws, which bar government contractors from boycotting Israel, are generally constitutional—for the same reason that anti-discrimination laws are generally constitutional: Refusals to deal are, outside some narrow situations, generally unprotected by the First Amendment.

Introduction

Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. Forum for Academic & Institutional Rights,[1] and it is the foundation of the wide range of antidiscrimination laws, public accommodation laws, and common carrier laws throughout the nation.

Thus, for instance:

• A limousine driver has no First Amendment right to refuse to serve a same-sex wedding party, even if he describes this as a boycott of same-sex weddings (or part of a nationwide boycott of such weddings by like-minded citizens).
• A store has no First Amendment right to refuse to sell to Catholics, even if it describes this as a boycott of people who provide support for the Catholic Church.
• An employer in a jurisdiction that bans political affiliation discrimination[2] has no First Amendment right to refuse to hire Democrats, even if it describes such discrimination as a boycott.
• An employer that is required to hire employees regardless of union membership has no First Amendment right to refuse to hire union members on the grounds that it is boycotting the union.
• A cab driver who is required to serve all passengers has no First Amendment right to refuse to take people who are visibly carrying Israeli merchandise.

Of course, all these people would have every right to speak out against same-sex weddings, Catholicism, the Democratic Party, unions, and Israel. That would be speech, which is indeed protected by the First Amendment. For this reason, when phrases such as "otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations" appear in various anti-BDS statutes,[3] courts should read them as covering only commercial conduct such as that listed in the preceding phrases ("refusing to deal with" and "terminating business activities with"), and not extending to advocacy.

But as a general matter, a decision not to do business with someone, even when it is politically motivated (and even when it is part of a broader political movement), is not protected by the First Amendment.[4] And though people might have the First Amendment right to discriminate (or boycott) in some unusual circumstances—for instance when they refuse to participate in distributing or creating speech they disapprove of—that is a basis for a narrow as-applied challenge, not a facial one.

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On Friday, the Supreme Court decided United States v. Hansen. In this case, the defendant promised aliens that they could obtain citizenship through "adult adoption." In the process, the defendant induced the aliens to stay in the country illegally. Hansen was convicted of violating a federal statute that forbids "encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law." On appeal, Hansen argued that this statute violated the Free Speech Clause of the First Amendment. To be sure, Hansen's own conduct was not protected speech. Rather, Hansen asserted that the entire statute was "invalid" under the so-called overbreadth doctrine.

Generally, a person only has "standing" to challenge a law when it violates that person's rights. However, an overbreadth challenge allows a person to assert that the government has violated the free speech rights of third parties who are not before the court. In other words, the overbreadth doctrine allows someone whose speech can be prohibited to assert that a statute is unconstitutional. This approach allows courts to vigorously scrutinize laws that may violate the freedom of speech — even for those people who might never be prosecuted for violating these laws.

This doctrine, which was developed by (you guessed it) the Warren Court, never quite fit into constitutional law. All the usual rules of standing are thrown out the window, and a defendant can be acquitted even if his own conduct is unprotected by the First Amendment. Civil rights litigants often rely on the overbreadth doctrine, which allows them to challenge statutes on their face, even if they are not subject to a present-day injury. The 3D-printed gun litigation, which I've been involved with for some time, has invoked the overbreadth doctrine.

But I've long suspected that the overbreadth doctrine was on borrowed time. In 2020, the Supreme Court decided United State v. Sineneng-Smith. This case concerned the same statute at issue in Hansen. But the Court ducked the overbreadth question because of the bizarre way that the Ninth Circuit decided a question that none of the parties presented. In a concurrence, Justice Thomas expressed his doubts on the overbreadth doctrine.

Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application. It appears that the overbreadth doctrine lacks any basis in the Constitution's text, violates the usual standard for facial challenges, and contravenes traditional standing principles. I would therefore consider revisiting this doctrine in an appropriate case.

Well, Hansen wouldn't be that "appropriate case," but a majority of the Court seems to share Justice Thomas's doubts. Justice Barrett refers to the doctrine with some skepticism.

First, she described the doctrine as "unusual" and explains that generally criminal defendants cannot assert someone else's constitutional rights.

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When I was a 2L, I attended an event on Justice Scalia's book, Making Your Case. During the Q&A session, someone asked Justice Scalia what opinion he was most proud of. Without any hesitation, he said Crawford v. Washington (2004). This landmark decision applied an originalist framework to the Confrontation Clause. Prior to that Crawford, Ohio v. Roberts (1980) imposed a "reliability" standard to determine whether out-of-court testimony could be introduced. But in Crawford, Justice Scalia turned back the clock to the deep historical roots of the right to confrontation.

Great success! But not all facets of the Court's Confrontation Clause jurisprudence are premised on originalism. Case in point, Bruton v. United States (1968). This decision concerned a joint trial of two defendants. Defendant #1 had confessed, and implicated Defendant #2. A postal inspector testified about that oral confession by Defendant #1, which included the statement that implicated Defendant #2. The trial judge ruled that the testimony could be used to support Defendant #1's guilt, but instructed the jury that the testimony was inadmissible hearsay with regard to Defendant #2.

A prior decision of the Court, Delli Paoli v. United States (1957), held that the trial judge's limiting instruction was permissible. But on appeal, Bruton held that the limiting instruction was insufficient, and thus the introduction of the testimony violated the Confrontation Clause. Justice Brennan wrote the majority opinion. You can predict what happened. The Court reversed Delli Paoli without any discussion of stare decisis or precedent. Zero. And there is also no discussion at all about why the original meaning of the Sixth Amendment supports that result. Justice Brennan doesn't even bother quoting the text of the Confrontation Clause. The entire decision was premised on the risk that the jury would disregard the instruction, because of fairness concerns. That's how the Court rolled in 1968, which was probably the apogee (nadir) of the Warren Court's activism.

Fast-forward to the present-day, and Samia v. United States. In this case, Samia and his accomplices were tried jointly. One of the accomplices had confessed, and implicated Samia. The prosecutors introduced that confession. But to avoid running afoul of Burton, the witness substituted Samia's name for the phrase "other person." As a result, Samia was never directly implicated. And the trial court judge instructed the jury to not use that confession with regard to Samia. On appeal, the defendant asked the Supreme Court to extend the line of cases that began with Bruton, and reject the "other person" workaround.

By a 6-3 vote, the Supreme Court declined that invitation. Justice Thomas wrote the majority opinion, but you should start with Justice Barrett's short, but pointed concurrence. Barrett explains that the majority opinion relies on old-timey precedents from the "late 19th century and early 20th centuries" that "address the rules of evidence rather than the Confrontation Clause." Unlike in Crawford, there is virtually nothing in Samia that speaks to the original meaning of the Confrontation Clause, as understood in 1791. Barrett explains that the Court should emphasize history that does not bear on the original meaning of the Constitution:

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Just wanted to highlight this Institute for Justice brief, which John Ross's Short Circuit  post noted today, and summarized: "IJ and several men named David Sosa are asking the Supreme Court to grant another David Sosa's cert petition after the en banc Eleventh Circuit said the Constitution allows police to detain anyone for three days as long as there's a warrant out for the arrest of anyone with the same name somewhere in the country."