Verfassungsblog, a German website focused on issues in constitutional law and legal theory, has published my article, "Does the Threat of Terrorism Justify Migration Restrictions?" Here is an excerpt:
Since the beginning of the War on Terror in 2001, and especially since the rise of ISIS and the Syrian Civil War, beginning in 2011, Western nations have adopted various policies barring migrants and refugees based on fear of terrorism and other security threats. These range from US President Donald Trump's anti-Muslim travel bans to restrictions adopted by various European countries in the wake of the Syrian refugee crisis of 2015.
As I write these words in March 2022, European nations have adopted a much more open attitude towards refugees fleeing Russia's brutal invasion of Ukraine. But a similar anti-migrant backlash could potentially occur in this case, as well, especially if the crisis goes on for a long time.
In both Europe and the United States, fears of terrorism and violence have been exploited by anti-immigrant nationalist political movements….
Concerns about terrorism are, to some extent, understandable. But the actual risk of terrorism caused by migrants is extremely low. And that risk can be mitigated by methods other than barring large numbers of refugees fleeing horrific violence and oppression. Indeed, accepting such refugees can actually help combat terrorism more than further it…. Barring migrants for the sake of achieving marginal reductions of already very low risks might be justified if restrictions imposed few or no morally significant costs. But, in fact, barring migrants fleeing oppression and war is a grave wrong. It inflicts enormous harm, violates human rights against unjust discrimination, and is also inimical to concepts of dignity prominent in modern European and international law jurisprudence….
The rest of the article defends the above points in detail, based on both moral considerations empirical evidence from Europe and the United States. While we cannot conclude that terrorism risks could never justify migration restrictions, there should be a strong presumption against such measures.
The lawsuit raises some of the same issues as earlier successful challenges against the CDC's eviction moratorium. But, in this case, the federal government has a stronger legal rationale for its policies.
Airline passengers subject to the CDC mask mandate. (Hispanolistic/iStock)
Yesterday, twenty-one mostly "red" states led by the state of Florida filed a lawsuit challenging the Centers for Disease Control (CDC) mandate requiring mask-wearing on public transportation and at transportation hubs, such as airports. The CDC claims that the mask mandate policy is authorized by 42 USC Section 264(a), the very same law that agency used to try to justify its nationwide eviction moratorium, which was invalidated by the Supreme Court in August, after a prolonged legal battle in the lower courts. The Court concluded (correctly, in my view) that the eviction moratorium lacked proper congressional authorization. The plaintiff states clearly hope to get a similar outcome with the mask mandate.
While the two cases raise related issues, I think the mask mandate is on much firmer legal footing than the eviction moratorium was. Courts may well uphold it.
I am far from happy about that prospect. I am deeply opposed to mask mandates, with the possible exception of a few highly specialized settings. In my view, their very modest public health benefits are greatly outweighed by the severity of this restriction on liberty, the pain and discomfort caused by mandatory mask-wearing, and the undermining of normal human interaction (which often depends on seeing people's facial expressions). Mask mandates are especially reprehensible at a time when vaccination is available to virtually all Americans over the age of 5 (and those under 5 face very low risks even without vaccination), for the vast majority of vaccinated people the risks of Covid are comparable to or less than those of the flu, and highly risk-averse individuals can still protect themselves with one-way masking. Further, as Reason's Jacob Sullum explains, the CDC's perpetuation of the transportation mask mandate makes no sense at a time when the agency is recommending against mask mandates in almost every other setting, including many where the risk of infection is substantially greater.
But this is one of those cases where law and justice may be at odds with each other. The legal problems that doomed the eviction moratorium are much less evident in this case.
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. [a later statute gives this authority to the CDC rather than the Surgeon General]
The Trump and Biden administrations claimed the agency could enact a nationwide eviction moratorium under the catch-all provision authorizing "other measures" that the CDC considers "necessary" to stop the spread of disease.
The Supreme Court rejected that position because, if applied consistently, it would give the agency the power to suppress almost any activity that involves movement or interactions between people. Such sweeping authority is at odds with the more limited nature of the other authorities listed in the statute, and "other measures" should - the Court concluded - be interpreted as allowing only measures similar to the others listed in Section 264. In addition, the Court emphasized that interpreting Section 264 to grant the CDC the vast power it claimed is at odds with the "major question" doctrine, which requires Congress to "speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'"
Several lower court decisions on the eviction moratorium also concluded that it violated constitutional limits on the delegation of legislative power to executive agencies. The government's ultra-broad interpretation of Section 264 would give the CDC enormous power to ban virtually any human activity. If that isn't a nondelegation problem, it's hard to see what would be. I discussed the nondelegation and major question issues in the eviction moratorium case in greater detail in this article.
The CDC transportation mask mandate differs from the eviction order in a number of crucial ways. I summarized them in this March 2021 post:
I think this is unlikely because the focus on transportation is much more closely related to the purpose of preventing the "spread of communicable diseases from… from one State or possession into any other State or possession." In addition, limiting it to transportation may fall into the category of promoting the "sanitation" of "articles" that facilitate the spread of disease across state lines. In this case, the relevant "articles" would be seats and air spaces on buses, airplanes, and other modes of transportation covered by the mask order. These distinctions may be the reason why Biden's advisers concluded (correctly, in my view) that he did not have the power to order a general nationwide mask order, but could impose a much narrower one focused on transportation.
Unlike the eviction moratorium, the mask order need not rely on an ultra-broad interpretation of the vaguely worded "other measures" provision. It could instead potentially be based on the more specific provisions authorizing regulations promoting "sanitation." For this reason, it is less likely to raise major question and nondelegation problems. Stretching the term "sanitation" to cover mask mandates wouldn't give the CDC the power to suppress virtually any human activity, though it might allow it to mandate other intrusive restrictions on public transportation, such as wearing even more restrictive protective gear (gloves, hazmat suits, and so on).
I readily admit it may be possible to come up with plausible narrower interpretations of "sanitation" that would exclude mask mandates. The issue isn't completely one-sided. But the government's position here is a lot stronger than it was in the eviction moratorium litigation.
In addition to relying on the eviction moratorium precedent on the "major question" issue, the plaintiffs in the mask case also argue that the CDC order violates constitutional constraints on federal commandeering of state governments, by requiring the latter to enforce the mandate in state-owned transportation facilities. This argument is similar to that successfully made in other contexts where the federal government tries to compel states and localities to help enforce federal laws and regulations, including gun regulations, and the sanctuary cities cases.
I think the anti-commandeering argument has merit, though the federal government might be able to overcome it by claiming that the states are merely being regulated in the same way as owners of private transportation facilities. But even if the states prevail on that point, it wouldn't lead to the end of the mask mandate; it wold only end the requirement that states help enforce it. In many contexts (such as with the War on Drugs), the federal government must rely on state cooperation to enforce federal law, because there are many more state law-enforcement agents out there than federal ones. Airports, however, are among the few places where there are often large numbers of federal law-enforcement personnel present on a regular basis, such as TSA employees. Thus, the feds can more easily "go it alone" here than in many other situations.
The Florida-led lawsuit isn't the first legal challenge filed against the transportation mask mandate. The state of Texas (joined by Rep. Beth Van Duyne) filed an earlier suit last month. But the multi-state lawsuit is by far the most high-powered and high-profile case of this type.
In addition to the substantive issues these cases raise, there are some procedural questions involved. For example, the federal government might try to get the state plaintiffs dismissed on procedural grounds, such as by claiming they don't have standing. Over the last couple years, the Supreme Court has tightened the procedural screws on state lawsuits against the federal government, most recently in the Obamacare severability case.
I won't go into detail on these procedural issues here. But I tentatively predict that courts will not dismiss these cases based on standing or other procedural grounds, and will have to reach the merits. Among other things, the fact that the mandate applies on state-owned property and requires states to help enforce it gives them a strong argument that the states suffer tangible harm from the policy.
Finally, it's possible this litigation will be mooted out if the transportation mask mandate expires on April 18, as currently scheduled. But the mandate has been extended several times before, and it is far from clear whether the Biden administration will do so again.
Fifty years ago, researchers at MIT produced The Limits to Growth, a report on how existing economic trends foretold environmental ruin. Left unchecked, the authors predicted, expanding populations and economic growth would exhaust global resources. and ultimately prompt civilizational collapse. The models upon which Limits was based suggested that global reserves of copper, silver, lead, tin, zinc, and petroleum would have all run out by now, and the world would be struggling to find enough arable land to feed a population of over 7 billion people. Without governmental efforts to change global trends, "[t]he most probable result will be a rather sudden and uncontrollable decline in both population and industrial capacity," the authors warned.
As should be obvious, the predictions offered in The Limits to Growth (and other contemporary doomsayers) were wildly off the mark. Among other things, they failed to account for how markets respond to scarcity, producing incentives for efficiency and innovation, so that we may do more with less. In short, the authors failed to understand why markets encourage sustainability.
Those predicting imminent depletion of global resources and exhaustion of the earth's carrying capacity also failed to predict what is arguably the most important -- and under-appreciated -- positive environmental trend of the 21st century: Dematerialization of modern economies. The same economic incentives which forestalled resource exhaustion have actually enabled people to do more with less throughout the developed world.
Dematerialization may be the most important, yet unsung, example of environmental progress in the 21st century. It is commonplace to observe that the relentless drive to do more with less has led to more efficient resource use, so that a soda can today is made with a fraction of the metal required 50 years ago. But dematerialization is not merely a story about increased efficiency or per‐capita reductions.
What is now being observed represents a fundamental decoupling of resource consumption from economic growth, such that as mature economies grow, they not only use fewer resources per unit of output, but they also consume fewer resources overall. In short, economic growth in the most developed nations increasingly coincides with a net reduction in resource consumption.
Let that sink in. It is not merely that we are using resources more efficiently in countries like the United States. It's also that we are actually using fewer total resources year-over-year.
The United States uses less gold, steel, aluminum, copper, stone, cement, and even paper than it did at the start of this century, despite the continued increase in gross domestic product. Annual consumption of all but six of the 72 resources tracked by the U.S. Geological Service are "post peak." We also use less fertilizer and water while growing more crops. Plastic consumption is up, as is energy use, but these two appear to have been decoupled from population and economic growth as well.
How does this dematerialization occur? Some examples may be useful. The dematerialization of soda cans is relatively easy to grasp, particularly for those of us who can remember the heavier cans of the 20th century. Aluminum cans weighed 85 grams when introduced in the 1950s. By 2011, the average can was under 13 grams. Cans today are not only thinner and lighter, they are produced more efficiently, with fewer separate sheets of metal.
Substitution can be an even more powerful source of dematerialization. Consider telecommunications. A single fiber optic cable made from less than 150 pounds of silica can carry the same volume of information as multiple 1‑ton copper cables. And were that not enough, satellite and wireless technologies enable us to bypass the use of physical cables altogether. We can communicate more and yet use vastly less material to do so. This not only saves copper, but other resources too. Think of all the paper saved by e‑mail, e‑banking, and e‑readers.
Not only did neo-Malthusians not predict these developments, they failed to recognize that such trends would be driven by private markets, and not governmental regulation.
We do more with less not because of government regulation or administrative direction, but because of capitalism and technology. These are the dominant forces driving dematerialization in the most developed countries and they could unleash similar gains in the rest of the world. We "want more all the time, but not more resources," McAfee notes. We want more of what resources can provide, and one way to get more is to do more with less. Market capitalism both facilitates and enhances the underlying incentives that drive efficiency gains and technological advance. This not only leads to dematerialization but also promotes "critical aspects of well‐being," including health and prosperity.
Unfortunately, these trends are not universal. While we consume fewer resources in developed nations, these trends have not (yet) taken hold in many developing countries, which often lack well-functioning market economies. We have also not observed equivalent trends in many forms of pollution, largely because emissions are not priced the way consumption is. An entrepreneur who figures out how to produce widgets while using less copper gains an economic advantage, as the copper must be paid for. An entrepreneur who figures out how to emit fewer particulates or nitrogen oxides does not, as emitting such pollutants is not meaningfully priced and contemporary regulations rarely create meaningful incentives for emission reductions on the margin.
Understanding what has encouraged and allowed for dematerialization at the same time that populations have expanded and economies have grown is essential if these trends are to be replicated in developing countries and if we are to meet contemporary environmental challenges, including climate change. A suite of policies designed to replicate the same market dynamics that have led dematerialization could spur meaningful decarbonization. Ill-conceived policies, on the other hand, could actually do more harm than good. This is but one more reason policymakers should be more interested in fiscal instruments than regulatory mandates to reduce greenhouse gas emissions.
Another article in the same issue of Regulation as my More from Less review notes that greenhouse gas emissions in the United States may have peaked in 2005, and that GHG emissions appear to initially increase, but then decline, with economic growth. Such trends are not observed, however, in less-developed and less-market-oriented economies, such as China. The authors, Bruce Yandle and Jody Lipford, think this indicates that domestic GHGs could continue to decline going forward, even without new government policies. This may be so, but the reductions are nowhere near what would be achieved if carbon emissions were priced and there were more powerful market incentives for market decarbonization. Greater market incentives for decarbonization could also lead to the development and deployment of low-carbon technologies that could facilitate emission reductions in other countries as well, and given that climate change is a global concern, such measures will be necessary if atmospheric stabilization is to be achieved.
The bottom line is that competitive markets create powerful incentives for efficient and sustainable resource use. Market-driven innovation has made it possible to provide for more people using fewer resources. Such environmental successes are often ignored because there is no policymaker or program than can take credit for them. They are the result of market processes, not governmental direction or design.
Replicating the incentives that spur dematerialization may be difficult, particularly because some obvious measures (such as taxing carbon emissions) are politically fraught. Yet pursuing such policies is the surest way to replicating market-driven environmental successes. Dematerialization is not a reason to ignore environmental problems, as many such problems are quite real. It does, however, provide a lesson for how to address many of the environmental problems that remain.
A new bar exam slated to debut in 2026, which will test more skills and fewer subjects than its current incarnation, is now ready for public comment from legal professionals.
The National Conference of Bar Examiners has asked the legal community to weigh in on preliminary outlines of exam content that, once finalized, will guide future test takers, law schools and exam drafters as the new exam approaches.
The NCBE, which develops bar exam content for 54 U.S. jurisdictions, has published the preliminary Content Scope Outlines for the next generation of the bar exam on its website. The bar is the test of legal skills and knowledge that most U.S. attorneys must pass before licensure.
NCBE is asking members of the U.S. legal community to review and comment on the Content Scope Outlines. The comment period will be open until April 18.
One of several changes would be the removal of conflict of laws and several other subjects from the exam:
The most noticeable change to the content planned for the new exam is the number of subjects tested, which will decrease to 8 from 12: civil procedure, contract law (including Article 2 of the Uniform Commercial Code), evidence, torts, business associations (including agency), constitutional law (including proceedings before administrative agencies), criminal law and constitutional protections of accused persons, and real property, according to NCBE.
NCBE states that the new exam will no longer test conflict of laws, family law, trusts and estates, or secured transactions, and will test some legal concepts more deeply than others.
Apparently (according to the story) this decision reflects the conclusion that conflicts and the other disfavored subjects do not arise sufficiently frequently or sufficiently universally, or that it is not important to know much about them when they do arise.
I confess that I am a little surprised at this conclusion about conflicts. Many transactions and incidents involve at least glancing contact with multiple jurisdictions, and the legal principles for what state can govern those transactions are not at all intuitive. (See this earlier post on this year's Supreme Court conflicts case.) Indeed, my experience is that lawyers who have no knowledge of the field of conflict of laws often do not even know that they have encountered a conflict of laws question.
But the bar committee presumably studied this question carefully, so I will assume that they know what they are doing. I am more interested in the possible consequences of removing conflict of laws from the bar exam.
If this change goes through, I suspect it might fully bury the scholarly study of conflicts as a field. Already, the field is regarded as something of an intellectual backwater, as I learned a decade ago when I naively told people I wanted to be a conflicts professor and learned how unfashionable and undemanded that was. One of the few countervailing forces generating any demand for conflicts professors is the sense at at least some law schools that they should probably have at least some faculty members who can teach the "bar classes." If conflicts ceases to be a "bar class," I'd predict the number of conflicts courses and conflicts professors slowly dwindles to zero.
I'm not saying that's a reason not to reform the bar exam, which should serve the interests of the public, not the interests of law professors. But it does mean that the important ideas and observations about conflicts might have to be assimilated into other fields, like constitutional law and federal courts and civil procedure, if they are not to be forgotten entirely.
In yesterday's National Press Photographers Ass'n v. McCraw(W.D. Tex.), Judge Robert Pitman held that Texas statutes limiting drone photography were unconstitutional. A brief summary of the statutes:
Section 423.003 imposes criminal and civil penalties by declaring it unlawful to use "an unmanned aircraft to capture an image of an individual or privately owned real property … with the intent to conduct surveillance on the individual or property captured in the image." Section 423.002 exempts certain uses of UAVs from liability under the Surveillance Provisions but does not exempt newsgathering. Exemptions include "professional or scholarly research and development or … on behalf of an institution of higher education." …
Texas Government Code Sections 423.0045 and 423.0046 (together "No-Fly Provisions") impose criminal penalties by making it unlawful to fly UAVs over a "Correctional Facility, Detention Facility, or Critical Infrastructure Facility" or "Sports Venue" at less than 400 feet. Critical infrastructure facilities are defined to include oil and gas pipelines, petroleum and alumina refineries, water treatment facilities, and natural gas fractionation and chemical manufacturing plants. In 2017, critical infrastructure was expanded though legislative amendments to include animal feeding operations, oil and gas drilling sites, and chemical production facilities, among others. The 2017 amendments also defined a "sports venue" to include any arena, stadium, automobile racetrack, coliseum, or any other facility that has seating capacity of more than 30,000 people and is "primarily used" for one or more professional or amateur sport or athletics events. Plaintiffs contend that when combined with Federal Aviation Administration ("FAA") regulations, which require UAVs to fly below 400 feet, the No-Fly Provisions effectively ban UAVs at the listed locations. The No-Fly Provisions exempt certain UAV users, including those with a "commercial purpose."
The court concluded that drone photography was covered by the First Amendment:
Last Wednesday, I gave a talk about Critical Race Theory at U. Chicago, as a guest of the school's Federalist Society chapter. Professor William H.J. Hubbard commented on my talk. We had an interesting, amicable discussion, with me being very critical of CRT, and Prof. Hubbarb, while agreeing with many of my criticisms, providing a more sympathetic take.
You can find a video of the event here. Given the rampant dishonesty from the right and disingenuousness from the left (and maybe also vice versa) surrounding CRT of late, I thought this was a really refreshing, serious discussion.
The "Russian Federation," which has been taken over by a dictator, has unleashed a criminal war.
This is a blow to all of us who belong to the Russian culture and who speak Russian. The very word "Russian" has become, in the world's eyes, toxic.
But a thousand times worse is what is happening to our close kin, the Ukrainian people. Before our eyes a true humanitarian catastrophe is unfolding. Many hundreds of thousands of Ukrainians have lost everything: their homes, their livelihoods, their property.
It's the season for new formalist federal courts scholarship to appear on SSRN. I've previously mentioned my forthcoming piece on severability. But I'm also very proud to share two new pieces written by two of my recent students at Chicago, both important contributions to federal courts questions.
Here is Tyler Lindley, on the questions of whether "mootness" is a constitutional principle, akin to standing; and if so, on how the Court's seemingly-prudential exceptions to mootness can be squared with Article III:
Article III limits the federal courts to deciding cases and controversies, and this limitation has given rise to the black-letter law of standing, ripeness, and mootness. But the law of mootness presents a puzzle: Over time, the Court has recognized various "exceptions" to ordinary mootness rules, allowing federal courts to hear arguably moot cases. On one hand, the Court consistently asserts that mootness doctrine, including its exceptions, is compelled by the original understanding of Article III. On the other hand, the scholarly consensus is that these exceptions are logically inconsistent with the Court's claims about Article III and that their existence proves that mootness is fundamentally prudential, not constitutional.
This Article provides a coherent justification for the mootness exceptions. First, one set of exceptions are not really exceptions at all. Collateral consequences; voluntary cessation; and capable of repetition to the same plaintiff, yet evading review—these doctrines merely recognize a shift from a present harm to a potential future harm, which harm might be sufficiently likely to occur when examined in light of the Bayes Theorem. Second, the other set of exceptions, for class actions, are justified through a better understanding of the history of representative litigation. And that understanding also justifies the extension of the capable of repetition, yet evading review exception to non-parties who are similarly situated to the plaintiff. Modern mootness doctrine is therefore fundamentally consistent with the Court's conception of the original understanding of Article III.
And here is Micah Quigley, on why it is unconstitutional for Article III courts to "make" law rather than to "find" it:
On the usual view, federal common law is judge-made by definition. Commentators and courts, of course, have long recognized the tension between judicial lawmaking and the Constitution's scheme of separated powers. That concern is part of why federal common law governs only a few special areas. Yet within those areas, federal judges can and should act as lawmakers. Or so the story goes.
The Constitution says otherwise. Article III endows the judiciary with only the "judicial Power." Historical evidence strongly suggests this phrase's original meaning included no power to make law—not even common law. So if federal courts are to abide by the Constitution's original meaning, they must quit making common law and start finding it instead.
If that is so, the courts need a lawfinding method. This Article—by looking to ancient principles of English law—provides one. Traditionally, common-law rules formed a web of continuous law; they enjoyed a measure of acceptance among the people; and they accommodated themselves to the nation's extra-legal customs. Today's federal courts can find law by identifying and applying rules that bear those same characteristics. Inversely, when courts fail to do so, they are likely attempting to make law.
This Article's thesis and its lawfinding method have implications for the Supreme Court. The Court, its justices, and its doctrines sometimes operate on the assumption that judges can make common law. That this assumption usually goes unspoken does not make it constitutionally licit. Accordingly, recognizing the need for lawfinding may help clarify a variety of (sometimes-surprising) doctrinal areas—from admiralty, to habeas corpus, to nondelegation, and more.
It's just great to see up-and-coming scholars making contributions in these areas!
From his Original Jurisdiction today, an excerpt (though the whole thing is much worth reading):
Here's what the policy—which Dean Gerken never quotes from in her message, oddly enough—actually provides: (1) "a university event, activity, or its regular or essential operations may not be disrupted"; (2) protesters "may not interfere with a speaker's ability to speak or attendees' ability to attend, listen and hear"; and (3) "[s]itting in or otherwise occupying a building in a way that blocks access or otherwise interferes with university events or operations" is not permitted.
The March 10 protesters broke all three of these rules. The protesters disrupted not just the FedSoc talk, "a university event," but also the "regular operations" of YLS, including multiple classes and a faculty meeting (which actually was "shut down," since it had to be moved to Zoom). The protesters interfered with both "a speaker's ability to speak," before they left Room 127, and the "attendees' ability to listen and hear," after they repaired to the hallway. Finally, the protesters blocked the main hallway of the Sterling Law Building. There is ample evidence, including audio recordings, video recordings, and eyewitness testimony, to support all of this.
The Yale free-speech policy also offers seven examples of prohibited conduct. The protesters engaged in at least six of them:
From Judge Lee Rudofsky's opinion denying summary judgment, yesterday's Long v. Smith (E.D. Ark.); seems quite right to me (for more on criminal harassment statutes and the First Amendment, see this article):
On May 15, 2016, Derrick Long (Grant Long's nephew) filed a personnel complaint against Officer [Darren] Smith. Derrick Long accused Officer Smith of unlawfully entering Derrick Long's house, taking his dog, and stealing $900. In response to this personnel complaint, the Forrest City Police Department conducted an Internal Affairs investigation. During the investigation, Officer Smith told investigators that his bodycam would show that he never ventured beyond the doorway of Derrick Long's home. Officer Smith also said that he never took the dog.
On June 3, 2016, the Internal Affairs investigator informed Officer Smith that a complete review of the investigation resulted in a "finding of true." That is, Derrick Long's complaint about Officer Smith's conduct was confirmed as being accurate. [Details omitted. -EV]
After this incident, Grant Long (our Plaintiff) sent a Freedom of Information Act request to the Forrest City Police Department. [Details omitted. -EV] On January 8, 2018, Mr. Long filed [but later lost] a pro se federal lawsuit against Forrest City, Officer Smith, and numerous other city officials. [Details omitted. -EV] …
On March 24, 2022, I delivered the inaugural Edwin Meese III Originalism Lecture at the Heritage Foundation. The primary topic of my remarks was "Originalism and Stare Decisis in the Lower Courts." But I began with a tribute to the namesake of the award, Attorney General Meese, who was gracious enough to attend.
Here is the introduction as prepared--as I often do, I ad libbed a bit:
It is my honor to deliver the inaugural Edwin Meese III Originalism Lecture. The topic of my remarks is Originalism and Stare Decisis in the Lower Courts. But before I can even talk about originalism in the lower courts, or in any court for that matter, I need to pay deep and profound respect to the namesake of tonight's event: Edwin Meese III who is with us today.
Let's go back in time to 1985. President Reagan was sworn in for his second term. Edwin Meese III was sworn in as the Seventy-Fifth Attorney General. Chief Justice Burger would begin his final term on the Supreme Court. And I would turn one year old. Over the span of one year, there would be a revolution in the law. Justice Rehnquist became Chief Justice Rehnquist. Judge Antonin Scalia became Justice Antonin Scalia. The Justice Department was staffed with Federalist Society attorneys. And Meese delivered three foundational speeches.
First, in July 1985, Meese spoke to the American Bar Association. He announced, emphatically, that the Reagan administration would "press for a jurisprudence of original intention." The DOJ would "endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment." Meese's remarks sent shockwaves throughout the legal profession. And it struck a nerve at the Supreme Court. Three months later, Justice William Brennan, the liberal lion, felt compelled to respond.
In a speech at Georgetown, Brennan charged that originalism was "little more than arrogance cloaked as humility." Brennan endorsed living constitutionalism, and firmly rejected originalism. "The genius of the Constitution," Brennan said, "rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."
The following month, in November 1985, Meese gave the second foundational speech to the D.C. Chapter of the Federalist Society Lawyers Division. And he responded, forcefully, to Justice Brennan. Originalism, Meese said "is not difficult to describe." First, "Where the language of the Constitution is specific, it must be obeyed." Second, "Where there is a demonstrable consensus among the Framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed." And third, "Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself." Finally, Meese laid out the terms of the great debate between the originalists and the living constitutionalists. He said, "We and our distinguished opponents carry on the old tradition of free, uninhibited, and vigorous debate." Meese explained that "Out of such arguments come no losers, only truth. It's the American way. And the Founders would not want it any other way."
One year later, in October 1986, Meese would give the third foundational speech. This speech came at Tulane University. Fun fact. Meese was hosted by a young law student named William Pryor, who was the President of the Tulane Federalist Society Chapter. You may have heard of him. He is now the Chief Judge of the Eleventh Circuit. At Tulane, Meese made a simple, but foundational point: there is a "necessary distinction between the Constitution and constitutional law. The two are not synonymous." Meese articulated the theory known as departmentalism. "The Supreme Court is not the only interpreter of the Constitution." Rather, "Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions." Here, Meese channeled departmentalism. This approach was not new. Abraham Lincoln articulated this perspective more than a century earlier. Yet, Meese's remarks created a firestorm in the legal profession.
These three speeches--to the ABA in July 1985, to the Federalist Society in November 1985, and to Tulane in October 1986--began this great debate. And three decades later, I think we can pronounce a winner, and a loser in this debate. Justice Brennan and living constitutionalism--they lost. Attorney General Meese, Justice Scalia, and originalism--were victorious.
If you want proof of this victory, look no further than the Supreme Court confirmation hearing that concluded today. Judge Ketanji Brown Jackson was asked how she interprets the Constitution. She said, "I'm looking at original documents. I am focusing on the original public meaning because I am constrained to interpret the text." She was asked if there is a living Constitution? Judge Jackson said, "I do not believe that there is such a thing as a living constitution." These answers would have been unthinkable three decades ago. But a nominee of a Democratic President felt compelled to identify original public meaning as part of her methodology. She is not alone. Justice Amy Coney Barrett--originalist. Justice Brett Kavanaugh--originalist. Justice Neil Gorsuch--originalist. Even Justice Elena Kagan said "we are all originalists now." By my count, with Justice Breyer's retirement, only two members of the Court rejected the label of originalism--Justice Sotomayor and, well, Chief Justice Roberts. Seven out of nine ain't bad. Still, for this amazing transformation in the law we must give credit to the namesake of this lecture: Edwin Meese III. Thank you. My sincere hope is that every year, this lecture will promote the cause of constitutional originalism, and bring honor to Meese's legacy.
And, I'm up first. Now, onto my prepared topic, Originalism and Stare Decisis in the Lower Courts.
On July 8, 2020, Professor Joshua Katz published an opinion piece in an online journal reacting to the July 4th public letter signed by many members of the Princeton faculty. In that piece he criticized a student group that had operated on campus a few year earlier and hyperbolically characterized it as a "small local terrorist group." This piece generated a series of responses on campus, including the university's spokesman claim that Professor Katz would be investigated for potential disciplinary action as a result of his extramural speech. More recently, in a university-sponsored freshman orientation event Professor Katz was singled out for criticism by the Carl Fields Center for Equality and Cultural Understanding. On a website of the university and co-sponsored by myriad university administrative units including the Office of the Vice Provost of Institutional Equity and Diversity, Professor Katz is held out as an example of a professor making a racist statement and is shown being denounced by the university president, the Classics department, and the chairs of two academic units for engaging in racist speech.
The AFA has not adopted a position on whether institutional speech by universities on issues of public controversy is ever appropriate, but it is a deeply problematic practice for administrative units on campus to use their institutional resources and programming to engage in ongoing public shaming campaigns directed against individual members of the faculty. It is not clear what, if any, boundary there might be on university deans and vice presidents using their offices to vilify members of the faculty.
It is hard to see the actions of the Carl Fields Center as anything other than ongoing retaliation for Professor Katz's speech. For university officials in their individual capacities to sharply criticize a professor for his speech is one thing. For the administration to memorialize criticism and to highlight it as the introduction of every student to the university campus is something else. We are not aware of any other example of a university systematically denouncing a sitting member of its own faculty in such a way. It is not an example that should be followed or repeated if universities are to remain vibrant centers of intellectual freedom.
The university climate would quickly become poisonous and intolerable if administrative units on campus made it a practice to hold up dissenting members of the faculty for ritual condemnation and if the precedent now being set were followed in the future. If the Office of the Vice President for Campus Life uses its administrative position on campus to organize official university programming for the purpose of heaping opprobrium on faculty for expressing disfavored personal political opinions, the risks of chilling speech on campus are severe. The university can hardly create a climate welcoming of heterodox opinions if it creates an administrative apparatus to target the heterodox and stamp them as campus pariahs.
For several years, I have been thinking about the doctrine of severability -- what happens when courts conclude that a part of a law is unconstitutional? I have come to believe that this is fundamentally just a question about "say[] what the law is," as Marbury v. Madison put it. Marbury tells us that a statute does not make law if the Constitution prevents it from doing so. The severability question is simply what is the law, in light of what the law is not?
I finally have a draft article on these questions, Severability First Principles, forthcoming in the Virginia Law Review and available on SSRN. Here is the abstract:
The Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.
This article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.
Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way – the relevance of unconstitutional removal restrictions, the nonconstitutional law that resolves unconstitutional combinations, and the relevance of severability to standing and other procedural questions.
A quick note on a very interesting Supreme Court opinion last week in the religious liberty context, Ramirez v. Collier. The Court awarded a prisoner on death row a preliminary injunction against his execution because the state refused to allow the prisoner to have his pastor pray and lay hands on him in the execution chamber. The Court held that the prisoner would likely succeed in showing that the state's refusal violated his rights under RLUIPA, a federal statute that prohibits prison officials from substantially violating an inmate's exercise of religion unless the officials have chosen the least restrictive means of achieving a compelling state interest.
Writing for the Court, Chief Justice John Roberts reasoned that, although the prison officials had compelling interests in, among other things, preventing interference with an execution and maintaining security in the execution chamber, the officials could employ less restrictive means of achieving those interests. The officials could, for example, limit the volume level of any prayer, restrict the time allowed, and subject clergy to immediate removal if they caused disruptions. The Court noted in this regard that having clergy present to counsel and comfort prisoners at executions was a traditional practice that dated from before the founding of the Nation and that continues in many states today.
It's this last point that makes the case so interesting, from a jurisprudential perspective. As Justice Kavanaugh wrote in a concurrence, the compelling interest test—also known as strict scrutiny—operates in many contexts besides RLUIPA. Strict scrutiny applies in many free exercise cases, for example, notwithstanding Employment Division v. Smith, and in other constitutional contexts as well. But strict scrutiny often makes judges (and scholars) uneasy because it turns on courts' intuitive judgments. In practice, strict scrutiny often works as a balancing test that depends on judges' prior commitments, which are often contestable.
In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates' RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? "It is difficult for a court applying" strict scrutiny, Kavanaugh wrote, "to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear." If the justices' intuitive judgments are all that make the difference, that hardly seems legitimate.
Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. "Although the compelling interest and least restrictive means standards are necessarily imprecise," Kavanaugh wrote, "history and state practice can at least help structure the inquiry and focus the Court's assessment of the State's arguments." Kavanaugh wrote separately to emphasize this aspect of the Court's reasoning.
As my colleague Marc DeGirolami has argued, tradition is an often-overlooked factor in many constitutional doctrines, very much including the Court's establishment and free exercise jurisprudence. Tradition can't solve all problems or remove all indeterminacy, of course. Identifying a tradition can be an intuitive exercise, too, and besides, people will differ on whether a particular tradition is worth preserving in the first place. But, as Justice Kavanaugh suggests, tradition can help make balancing tests more predictable and limit intuition as a factor in judicial decision making. His insight is worth pursuing, in the strict scrutiny context and elsewhere.
Paul Rosenzweig and I have an oped in WIRED on a particularly fitting sanction for Putin's Russia. Here's an excerpt:
By the end of 1991, the Soviet Union was dead.
But not its country code.
Thirty years later, the Soviet Union endures in the imagination of a former KGB officer now in the Kremlin—and on the internet, where you can still register a domain like stalin.su. … Given its lack of positive value (and the happy end of Communist terror) it is long past time for the .su domain to be consigned to the digital graveyard.
