Tuesday, July 17, 2018

How Justice Speaks Today

Justice Antonin Scalia took 258 trips paid-for trips before he died at the private estate of a wealthy businessman. His liberal colleague, Justice Stephen Breyer, was not far behind. Between 2004 and 2014, he took 185 paid-for trips. If Judge Brett Kavanaugh is confirmed, he will almost certainly be packing his bags for some fun trips, paid by his hosts. That’s because all nine of the current justices take these paid trips.
Consider that Justice Samuel Alito traveled in 2013 to the luxurious Casa de Campo Resort in the Dominican Republic.
His liberal counterpart, Justice Ruth Bader Ginsburg, is a guest lecturer for the Rome Study Law Abroad Program this summer. Also this summer, she is traveling to Israel to receive two awards.
The striking photo for this post has Justice Scalia and Justice Kagan posing at Mississippi hunting resort in December 2014.
Conservative groups do a better job of cultivating long-term relationships with justices who think along the same lines. Justice Scalia took 21 trips sponsored by the Federalist Society, some to upscale places such as Park City, Utah and Napa, California.
The bad news is that this is perfectly legal, even if some of these trips don’t pass the smell-good test. Scalia’s death poses that very situation: He died during a paid-for trip on the property of a man whose business had a discrimination case pending before the Supreme Court.
In all these trips, the justices were speaking to a group. That’s a good thing insofar as they are educating an audience. But increasingly, their audience amounts to their own echo chamber. And their speaking engagements amount to frolics with elites in posh locations.
That's how justice speaks today.

Monday, July 16, 2018

Literacy Testing Changed Immigration: How Morris S. Povich Makes America Great

I took this picture in Bath, Maine two weeks ago. Mr. Povich probably immigrated to the U.S. from eastern Europe (Maury Povich’s family is from Lithuania). The key point is that he arrived before 1917, when America passed a highly restrictive immigration law (Chinese were already entirely barred from entering).
Context: The Trump administration favors an English-fluency requirement for legal immigration. You may also know that America had a similar policy 100 years ago. The Immigration Act of 1917 required arriving immigrants to read four lines of text. The text was in their native language, not English, so it was a true literacy test.
But when Congress passed this law in 1916, President Wilson vetoed it, stating: “The object of such provisions is restriction, not selection.” He then noted that such a policy would “reverse the policy of all the generations of Americans that have gone before them.” 
In 1917, Congress overrode Wilson’s veto.
What was the effect of the law? Prof. Louis Bloch’s 1922 study shows the following:
“During the period 1899-1917, 13,821,126 immigrants from the races shown in the table were admitted into the United States. 
Of this number 3,029,752, or 21.9 per cent were illiterates who could neither read nor write.…  
It is evident that the effect of this clause has been to reduce considerably the numbers of illiterates seeking admission into this country.
The point of this research? People in other nations simply stopped coming to America. The much lower illiteracy rate after 1917 is conclusive evidence of self-selection. 
Mr. Povich arrived before 1917. The odds that he would have come to the U.S. and started his business after 1917 are very small.
Consider this, too. The 1917 law was based on the Dillingham Commission, a four-year investigation of immigration that ended in 1911. It concluded that immigrants from southern and eastern Europe posed a serious threat to American society.
Back to Morris S. Povich's store. He established it in 1910. It's still open for business. Mr. Povich made America great. And he is still making America great. 

Friday, July 13, 2018

Would Justice Brett Kavanaugh Overrule U.S. v. Nixon?

Today, the United States indicted Russian nationals who answered candidate Trump’s public call for hacking Hillary Clinton’s campaign apparatus. 
The indictment should make Judge Kavanaugh sweat in a way he hasn’t had cause to as of yet. 
That’s because the evidence of some type of coordination between the Trump campaign and Russian hackers just grew—and by a lot.
So, how does Judge Kavanaugh’s 2009 law review article look after the indictment? His absolutist position on excusing a sitting president from a criminal investigation means that America’s election process could be handed over to Russian hackers while the investigatory process is potentially delayed until January 20, 2025.
That could make Judge Kavanaugh squirm during his testimony.
It is almost inevitable that a senator will ask the judge: “Given your position in your 2009 law review article, would you be willing today to say that U.S. v. Nixon should not be overruled or in any way turned aside from applying to the Mueller investigation?”
In the Watergate case, special prosecutor Leon Jaworski obtained a subpoena ordering President Nixon to release certain tapes and papers related to specific meetings between the President and those indicted by the grand jury. 
The tapes and the conversations they revealed were believed to contain damaging evidence involving the indicted men and perhaps the President himself.
Does that sound familiar?
The president refused to obey the subpoena. In short order, the matter came up for decision by the Supreme Court.
In a unanimous ruling, the Court upheld the investigatory powers of the special prosecutor. Nixon was ordered to submit to judicial process. He resigned shortly thereafter under the pressure of intense, bipartisan scorn and calls for his resignation.  
The key sentence in that decision acknowledged that the principle of executive privilege did exist, but also rejected President Nixon’s claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."
So, Judge Kavanaugh: Did the unanimous Supreme Court in 1974 get that ruling wrong, or would you apply it to President Trump? 
And if you won’t apply the precedent, how can you credibly claim to be a conservative who upholds—as you stated in your introductory comments to the American public— precedent and the rule of law?

Doubling Down on Tariffs: How Did the Black Tariff of 1842 Work Out for Americans?

President James Polk, a Democrat, might be the forerunner of the president who succeeds Donald Trump. Here's why:

Polk is considered by historians to be the most effective president between George Washington and Abraham Lincoln. 
Tariffs played a major role in his success.
The Whigs in the 1840s-- like President Trump-- were deeply upset by what they perceived as unfair trading laws, especially the U.K.’s Corn Tariff. 
The Whigs had a good point—but their retaliatory tariff overreacted and set off a crippling trade war.
The Whigs enacted the Tariff of 1842, known as the Black Tariff because of its dire effects.
In a now-familiar story, the tariff rates doubled overnight. 
The new tariffs undid the 1833 trade deal called the Compromise Tariff of 1833. The 1833 law gradually lowered tariffs and promoted economic growth in America.
As the 1833 tariff level exposed American businesses to more competition, industrial interests grew angry and agitated for protection.
The Whigs got what they asked for in 1842. 
Average tariff rates nearly doubled from the initial 20% target for 1842 to about 40%. The impact of the Black Tariff of 1842 was immediate: as the cost of imports jumped, there was a sharp decline in international trade in 1843.
In the following presidential election, voters dumped the Whigs.
They voted for Polk and the Democrats who promised to unwind the damage done by the Whigs. 
They passed the “Walker Tariff,” the nation’s first standardized tariff. The policy allowed for many more imports, except tobacco and alcoholic beverages.
Trade grew substantially, and relations with Great Britain improved.
The lesson? Protectionist tariffs are popular in the moment and voters like this. But they pay dearly as consumers, and as America becomes a trade island. We will see if Trump’s protectionism and support from his base suffer the same fate of the Black Tariffs.

Thursday, July 12, 2018

How Did Brett Kavanaugh Justify His Views on Presidential Power? His Words (In a Nutshell)

We will hear and read much on this topic. But it’s unlikely we will actually read direct quotes from his research.
This brief blogpost is a two paragraph summary of what Judge Kavanaugh said. It’s offered for your independent consideration.
As for me, I am taking time to think about this. 
Share your thoughts on FB or at mhl@illinois.edu.
Brett Kavanaugh, “Separation of Powers During the Forty Fourth Presidency and Beyond,” Minnesota Law Review (2009)

One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.

Wednesday, July 11, 2018

Motel 6 Volunteered Its Guest List of All Hispanic Guests to ICE: Turn Its Lights Off, Please

Motel 6 has agreed to settle a proposed nationwide class action lawsuit claiming it violated the privacy of Hispanic guests by providing guest lists to U.S. immigration authorities to aid in law enforcement.
The Mexican American Legal Defense and Educational Fund (MALDEF) represented the plaintiffs.
MALDEF sued Motel 6 in January. Its legal complaint said that release of guest lists was racially discriminatory and unconstitutional, and allowed law enforcement to make arrests without warrants or reasonable suspicion that crimes had been committed.
The lawsuit was filed after ICE arrested 20 people in six months at Motel 6s in Arizona, using guest lists to identify people by national origin. Hispanic guests Washington hotels were also arrested.
For now, Motel 6's management company, G6 Hospitality, has said it ordered its more than 1,400 U.S. and Canadian locations in September to stop voluntarily giving guest lists to ICE agents.

Tuesday, July 10, 2018

Abolish ICE? A Foolish Meltdown

I have strong concerns about how ICE is used today. Abolishing ICE, however, is an idea not even worth exploring.
To understand why, consider this brief history about how America has enforced its borders.
Before we had a national immigration service (i.e., agents), states had severe immigration laws and used local police as immigration officers. 
Arizona, for example, had a law that made it a criminal offense for an employer to have more than 20% of their employees be immigrants. A restaurant owner who had a small cafĂ© was charged with a crime for exceeding the total of 20%. A German cook put him over the limit. The Supreme Court— a conservative court at that— threw out the conviction and the state law.
More generally, states passed laws that forbade the immigration of convicts (including people who broke laws that prohibited their religious worship), paupers, and free blacks.
If Democrats want to abolish ICE, that’s the type of system that we’d go back to.
But to their point, immigration officials can be instruments to enforce racist laws and policies. The first national immigration service came about after the Chinese Exclusion Act was passed in 1882.
Comparing the deportation statistics of Obama and Trump, they are not much different, at least so far. What is different, in part, is how ICE is now deployed—showing up, for example, to arrest a man who has was delivering a pizza to a military base, or using immigration laws to deport people with minor convictions from 20 years ago (while breaking up a family). 
Ironically, Obama put dangerous criminals at the top of his enforcement priorities. 
Every time Trump’s ICE arrests a peaceful person, they are taking resources away from going after violent criminals. Fox News never reports this plain fact.  

Should the Supreme Court Grow to 19 Justices?

That’s the suggestion of Judge Richard Posner, one of the most respected jurists in the United States and also a prolific scholar. He notes that other democratic nations have supreme courts that are larger than ours. In a recent interview, he said, “we have a crappy judicial system” and “most of the [legal] technicalities are antiquated crap.”

He said that the current Court is mediocre and highly politicized due to the political nature of the selection of justices. He also believes justices should be retired by rule at age 80. He just retired at age 79.

Adding 10 justices would take much of the drama and randomness out of these nominations. It would also reduce the possibility that a single justice could fashion himself or herself as a swing or pivot vote, as Justice Kennedy perfected over the past 15 years.

The size of the Supreme Court is set by statute, not by the Constitution. In the mid-1800s, the Court had 10 justices. It has also had six justices.

Judge Posner doesn’t explain how to make this happen. No single president should be able to nominate ten more justices! There would need to be a phase-in, and with these numbers, a very lengthy period to give Democrats and Republicans a fair shot.

Monday, July 9, 2018

Why Should You Care About the 150th Anniversary of the 14th Amendment?

On July 9, 1868, the 14th Amendment was ratified. It amounts to the legal rebirth of America. Boiled down, it provides us protections against state and local actions that take away our liberty and property and life (called due process), and ensures that state and local laws treat us with equal protection. It also defines citizenship. This means that freed slaves were given full legal rights equal to whites; and also, anyone— regardless of their parents’ ancestry or origin— was to be counted as an American citizen if they are born on U.S. soil.

Given how polarized our nation is, here is a brief summary of conservative and liberal rulings that have interpreted the 14th Amendment.

Conservatives: State and local governments must pay fair market value if either takes your property for a public purpose. Furthermore, if state or local laws so restrict your property that you cannot enjoy or use it as you wish, you can sue under the property provision of the 14th Amendment.

Liberals: Separate but equal is not constitutional; it violates the Equal Protection Clause. A woman has a due process right (liberty) to have an abortion. Children who are not legally in the U.S. have a right to free public education because the Amendment refers to “any person,” not “any American citizen.” Gay people have a right to be legally married. 
Though 150 years old today, the 14th Amendment is still under construction as our nation figures out the core meanings of liberty and equal treatment.

Sunday, July 8, 2018

Supreme Court Nominee? My Assessment of Judge Thomas Hardiman

Law360 asked me the week after the inauguration to look into Judge Hardiman as a potential Supreme Court nominee. They re-contacted me on Friday to run parts of the following response.

My assessment of Judge Hardiman is limited to employment and immigration cases (i.e., not reproductive rights). Judge Hardiman’s decisions are well explained and written in a neutral tone. They lack Justice Scalia’s tart, expansive, know-it-all prose. His decisions don’t appear to stray beyond the facts, as Justice Alito is prone to do when he engages in dicta to signal the bar to advance his thinly veiled agenda.
On to some cases.
On immigration, Judge Hardiman’s record is what one would expect from a competent appellate judge. The grounds for reviewing orders from immigration judges are extremely narrow. The fact that Judge Hardiman frequently denies appeals by petitioners for asylum is entirely consistent with how federal appellate judges rule.
Two cases are worth mentioning, however.
In Gjonomadhi v. Attorney General of U.S., 310 Fed.Appx. 495 (3d Cir. 2009), Judge Hardiman disagreed with the immigration judge’s conclusion that an asylum petitioner from Albania had not suffered political persecution. He ruled, “we find that the IJ's conclusion that there is ‘in the record no compelling evidence that the respondent suffered past persecution’ cannot stand.” The point of this case is that Judge Hardiman doesn’t rubber stamp immigration appeals from aliens who have lost deportation cases before immigration judges.
Kwee v. Attorney General U.S., 269 Fed.Appx. 147 (3d Cir. 2008) is another interesting case. Here, Judge Hardiman— who was educated in Catholic universities— upheld a ruling from an immigration judge who ordered removal of a petitioner who alleged a pattern of persecution of ethnic Chinese Catholics in Indonesia. If Judge Hardiman had any personal sympathies for this alien on shared religious beliefs, he nevertheless stuck to the law.
In employment cases, he is a standard issue conservative judge who tends to rule for employers; but in doing so, his rulings stick closely to the law and facts. In EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote the opinion and ruling that affirmed a district court dismissal of discrimination claims brought by a class 6,200 insurance agents. The plaintiffs claimed that All-State unlawfully converted their status from employment to independent contracting with a discriminatory and coercive waivers. He rejected these theories, stating: “It is hornbook [basic] law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled.” Allstate had offered four different options to the plaintiffs. The decision is a mainstream ruling that pushed back against the EEOC’s more expansive theory of discrimination—but notably, the decision did not overturn precedent.

Saturday, July 7, 2018

GOP Court Rules that Academic Freedom Protects a Professor’s Vicious Attacks

Republican justices on the Wisconsin supreme court ruled yesterday that Marquette violated its contract with Prof. John McAdams, a far-right wing faculty member who turned his mob of followers on a Ph.D. student, Cheryl Abbate.
Ms. Abbate had shut-down a class discussion where a student expressed homophobic opinions in class. McAdams took up the cause of the “free speech” student, who recorded the class discussion—clearly, an effort by the student to ignite controversy.
McAdams launched an unrelenting crusade against Abbate. On his blog, McAdams “doxed” her, providing personal identifying information to make it easy for others to harass her.
Vicious right-wingers threatened her with rape, called her a “c*nt,” and harassed her to the point where she felt unsafe. Abbate dyed her hair and retreated from campus life. Her classes were moved to an undisclosed location to keep her safe. Security guards were posted outside her classroom. She left the university and resumed her educational career in Colorado.
While researching academic freedom court cases, I spoke to Abbate. She confirmed the published reports of this torrent of online abuse.
The case represents the emerging Republican notion of free speech. This view is led by President Trump, who under the guise of attacking political correctness, regularly tweets deeply personal attacks-- some of them connoting violence, others racism.
A dissenting opinion criticized the majority for sanitizing the dark facts of the case: “McAdams threatened a Marquette student, the vice president for student affairs, a university provost, and a Dean that he would "raise hell" on his blog if they acted in a manner inconsistent with McAdams' wishes. McAdams pointedly told a Dean to "be careful" because "you don't want to be on my blog." Why would McAdams make such threats if he did not know what would happen to those whose names were published?”
McAdams' case was based on a contract that guaranteed him free speech, not the First Amendment. 

Marquette said that “free speech cannot be used to launch personal attacks on its students.” The university added that the case “has never been about academic freedom or a professor’s political views. Had the professor published the same blog without the student-teacher’s name or contact information, he would not have been disciplined. Marquette has been, and always will be, committed to academic freedom.” The university said it will take steps to ensure that such a situation never happens again.
The full opinion can be read here, https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=215236. 
PHOTO CREDIT: Book Cover for J.G. Daniel, Hate or Be Hated

Friday, July 6, 2018

For National Unity, Lincoln Proclaimed a Day of Fasting. He Chose Yom Kippur.

We do not have a civil war today, but we have a divided nation.
In my research on presidential orders and proclamations, I came across this remarkable message from President Abraham Lincoln. He did not expressly order the national fast day to coincide with the Jewish Day of Atonement (Yom Kippur). But I checked the calendar for 1861. Sure enough, that day was Yom Kippur in 1861.

Proclamation 85—Proclaiming a Day of National Humiliation, Prayer, and Fasting
August 12, 1861
By the President of the United States of America
A Proclamation
Whereas a joint committee of both Houses of Congress has waited on the President of the United States and requested him to “recommend a day of public humiliation, prayer, and fasting to be observed by the people of the United States with religious solemnities and the offering of fervent supplications to Almighty God for the safety and welfare of these States, His blessings on their arms, and a speedy restoration of peace;” and
Whereas it is fit and becoming in all people at all times to acknowledge and revere the supreme government of God, to bow in humble submission to His chastisements, to confess and deplore their sins and transgressions in the full conviction that the fear of the Lord is the beginning of wisdom, and to pray with all fervency and contrition for the pardon of their past offenses and for a blessing upon their present and prospective action; and
Whereas when our own beloved country, once, by the blessing of God, united, prosperous, and happy, is now afflicted with faction and civil war, it is peculiarly fit for us to recognize the hand of God in this terrible visitation, and in sorrowful remembrance of our own faults and crimes as a nation and as individuals to humble ourselves before Him and to pray for His mercy— to pray that we may be spared further punishment, though most justly deserved; that our arms may be blessed and made effectual for the reestablishment of law, order, and peace throughout the wide extent of our country; and that the inestimable boon of civil and religious liberty, earned under His guidance and blessing by the labors and sufferings of our fathers, may be restored in all its original excellence:
Therefore I, Abraham Lincoln, President of the United States, do appoint the last Thursday in September next as a day of humiliation, prayer, and fasting for all the people of the nation. And I do earnestly recommend to all the people, and especially to all ministers and teachers of religion of all denominations and to all heads of families, to observe and keep that day according to their several creeds and modes of worship in all humility and with all religious solemnity, to the end that the united prayer of the nation may ascend to the Throne of Grace and bring down plentiful blessings upon our country.
In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed, this 12th day of August, A.D. 1861, and of the Independence of the United States of America the eighty-sixth.
Photo Credit: Zazzie.

Can a President Use an Executive Order to Cap Your Pay Raise? Yes

Forty years ago this week, President Richard Nixon showed us just how dangerous unchecked executive power can be to the free-enterprise system.
On Aug. 15, 1971, in a nationally televised address, Nixon announced, “I am today ordering a freeze on all prices and wages throughout the United States.”
After a 90-day freeze, increases would have to be approved by a “Pay Board” and a “Price Commission,” with an eye toward eventually lifting controls — conveniently, after the 1972 election.
I did not write that passage (I added the red font and underline). Gene Healy, a prominent leader of the libertarian think tank Cato Institute wrote this in 2011 (for more, read this https://www.cato.org/publications/commentary/remembering-nixons-wage-price-controls).
Richard Nixon used an executive order to “freeze” wages and prices. That means anyone who raised wages or prices over the limits set by President Nixon were subject to civil enforcement.
This history is relevant today. President Trump is making record use of executive orders, topping President Obama. Tariffs—the product of Mr. Trump’s executive orders— are going into effect today against China. More are coming, according to the president. They will likely add costs to producers, and possibly cause inflation above and beyond a strong economy.
President Carter also used an executive order to control wages and prices. The nation’s labor unions sued to challenge the order—and they lost (AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979)). President Franklin Roosevelt and Truman used these orders, too, albeit in times of war.
So, the bottom line is that President Trump has this power.
Economists say the power is counter-productive, though others note it helps presidents in the polls for the short term.
If you think this is inconsequential, consider: Our legacy health insurance and pension systems are the byproducts of wage and price controls. Pension and insurance benefits were “fringes” to wages, i.e., exempt from these orders because they weren't wages. 
Thus, unions bargained for these non-wage forms of compensation. Over the years, they benefited two generations of Americans but their costs mushroomed out of control.
This supports the point made by most economists: You can’t really control wages and prices with an executive order. All you’re doing is distorting markets—a whack-a-mole situation where side-bargains, underground economies, and under-the-table arrangements occur.  

Thursday, July 5, 2018

For Purposes of Immigration, What is a White Person?

President Trump has strongly hinted—without expressly saying so— that immigration should be limited to white persons.  Recall his statement about “shithole” countries and preference for Nordic immigrants.
The Supreme Court faced this question— what is a white person?— at least three times in the early 1900s.
In U.S. v. Bhagat Singh Thind, 261 U.S. 204 (1923), the Court ruled that an already naturalized Hindu citizen could have his citizenship revoked by an executive order.
How so? In 1917, Congress passed a law, called the Naturalization Act, that limited citizenship to “free white persons and to aliens of african nativity and to persons of African descent.” The latter group was included due to post-Civil War constitutional amendments and statutes that conferred citizenship to  blacks.
At that time, ethonologists had a broad definition of Caucasian. It was not a “PC” idea. As the Court recognized, scientists based this on evidence of inter-marriage between whites and Asians.
The Court disregarded this evidence. Instead, it offered this analysis of race:
It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them to-day; and it is not impossible, if that common ancestor could be materialized in the flesh, we should discover that he was himself sufficiently differentiated from both of his descendants to preclude his racial classification with either.
The Court had to make one more contortion because the plaintiff was a high-caste Hindu, meaning he was a free man in his birthplace of Punjab. How did this fact square with the idea that Constitutional framers extended naturalized citizenship to “any alien being a free white person”?
The Court said:
We are unable to agree with the District Court, or with other lower federal courts, in the conclusion that a native Hindu is eligible for naturalization under section 2169. The words of familiar speech, which were used by the original framers of the law, were intended to include only the type of man whom they knew as white. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to ‘any alien being a free white person’ it was these immigrants—bone of their bone and flesh of their flesh—and their kind whom they must have had affirmatively in mind. The succeeding years brought immigrants from Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed, swarthy people of Alpine and Mediterranean stock, and these were received as unquestionably akin to those already here and readily amalgamated with them. It was the descendants of these, and other immigrants of like origin, who constituted the white population of the country when section 2169, re-enacting the naturalization test of 1790, was adopted, and, there is no reason to doubt, with like intent and meaning.
The Court finished up by saying:
It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. 
On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation (emphasis added).

Wednesday, July 4, 2018

Washington, Eisenhower, Grant, Bush II: The American Tradition of Religious Tolerance

For Independence Day, we might consider a brief passage from Chief Justice Roberts’ Trump v. Hawaii majority opinion. Yes, the opinion glosses over the anti-Muslim intent behind President Trump’s revised “travel ban.” But Roberts spends a moment recalling far better examples of religious tolerance shown by our presidents than exhibited by Mr. Trump. The following brief passage is a direct quote:
The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf. Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded.  In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” 6 Papers of George Washington 285 (D. Twohig ed. 1996). 
President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.”  Public Papers of the Presidents, Dwight D. Eisenhower, June 28, 1957, p. 509 (1957). 
And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike— to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.”  Public Papers of the Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days— performed unevenly in living up to those inspiring words.
I add to this list President Ulysses Grant. He issued an order as a Union general to oust every Jewish soldier from his command. He came to regret it, and showed his remorse by showing up to dedicate a synagogue while he was president.

Happy Independence Day. May we remember our nation’s origins as diverse groups of people who fled religious persecution to be immigrants in a new land.  
Photo Credit: PragerU

Tuesday, July 3, 2018

Trump Front Runner Amy Coney Barrett Says “A Thing Worth Doing is Worth Doing Badly”

Amy Coney Barrett is a dream nominee for Donald Trump. He likes attractive people. Check that box. 
She has seven children and is having a phenomenal career. Great armor against Democrats; great appeal to Republicans.
Really, on the surface the only thing not to like is that her name sounds too much like Comey.
I worry about her intellect and values. She is plenty smart; but also plenty narrow and rigid.
I had a brief interaction with her when she was an Executive Editor with the Notre Dame Law Review, where I published a research article.
I mention this because part of her academic career has been built by publishing her research in the same journal where she served as an editor (though she has impressive publications elsewhere, too).
I’ve read two of her recent articles. They are extremely well-written. She is a deep thinker. But again, she plows her furrow in very narrow and also troubling lines.
To summarize my concerns, let me quote her most recent article, “Originalism and Stare Decisis,” published in her “home” law review, which reads like an obsequious tribute to Justice Antonin Scalia. She concludes with these thoughts (quotes in red text):

Justice Scalia admitted that “in a crunch I may prove a faint-hearted originalist.” Stare decisis, however, rarely put him in a crunch, mostly because of the underappreciated features of our system that keep the law stable without need for resort to the doctrine of stare decisis. To the extent he was occasionally faint hearted, however, who could blame him for being human? As the Justice himself put it:

As for the fact that originalism is strong medicine, and that one cannot realistically expect judges (probably myself included) to apply it without a trace of constitutional perfectionism: I suppose I must respond that this is a world in which nothing is flawless, and fall back upon G.K. Chesterton’s observation that a thing worth doing is worth doing badly.

Nothing is flawless, but I, for one, find it impossible to say that Justice Scalia did his job badly.

What is she saying here? The Constitution is fixed in meaning by what white male framers envisioned at the 1787 Constitutional Convention. A justice should start here, and also try to end here with his or her analysis. If the present doesn’t really match the realities of 1787— for example, a woman’s right to control her reproductive decisions— it’s okay because taking down Roe—a bad thing to do from the standpoint of stare decisis (precedent) is “a thing worth doing is worth doing badly.”

C.K. Chesterton-- the background authority Barrett admires by implication-- was a brilliant writer and philosopher who routinely referred to himself as an “orthodox” Christian.

Monday, July 2, 2018

Rating Trump’s Nominees in Employment and Labor Law Cases

In late May 2016, Law360 asked me to review candidate-Trump’s shortlist of potential Supreme Court nominees. Law360 is a daily newspaper for lawyers and has sections similar to a regular newspaper. I wrote the following for the Employment and Labor Law section (under this title).

I reviewed five judges from the list. They might not even be on Mr. Trump’s list. Nonetheless, after researching these judges, I was impressed by their qualifications— even though I would not agree often with their rulings.

For readers who don’t want more detail, here is my conclusion.

Assessment: It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties—even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.
As Donald Trump mutes his intolerance and vulgarity, he recently announced his possible Supreme Court nominees. Already, these judges get high marks from judicial analysts as mainstream judges with rock-solid conservative credentials. Less reported but important to know, the Heritage Foundation’s John Malcolm published a list of eleven potential nominees on March 30th in the Daily Signal— a list that Trump has mostly cut and pasted in his highly ad hoc approach to institutional questions. Trump seems to be using a branding strategy by tailoring his list to a scholarly conservative group. If it is brilliant politically it also betrays his lack of commitment to, and understanding of, the judiciary.
The question I pose is: How do Trump’s nominees rate in employment and labor law cases? But first, some caveats. I will not vote for Trump. Second, my research sample is preliminary and focuses on five of the eleven nominees. With these disclaimers, I find that these judges are thoughtful, pragmatic, and somewhat libertarian in the following employment and labor cases. In these opinions, they appear more temperate than Justice Scalia.
Judge Brett Kavanaugh (D.C. Court of Appeals): This important court was at its best in SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014). Judge Merrick Garland wrote the majority opinion in a fascinating case upholding OSHA’s fine against SeaWorld for failing to comply with the general duty clause under the Occupational Safety and Health Act. OSHA acted after a whale trainer, Dawn Brancheau, was killed in a pool by Tilikum during a performance before a live audience. Based on SeaWorld’s history of killer whale injuries to its employees, Judge Garland found that the agency had reasonable grounds to impose its fine.
Judge Kavanaugh’s dissenting opinion is thoughtful, provocative—and reflects a libertarian soul.
At the same time, it conflicts with Chevron deference to agency expertise. Judge Kavanaugh wrote: “Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.”
He observed that “the participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk—is among the greatest forms of personal achievement for many who take part in these activities.”
Judge Kavanaugh’s legal analysis said: “Whether SeaWorld’s show is unreasonably dangerous to participants and should be banned or changed is not the question before us. The question before us is whether the Department of Labor has authority under current law to make that decision—in addition to the authority already possessed by Congress, state legislatures, state regulators, and courts applying state tort law.” He believed the agency exceeded its authority.
Judge Steven Colloton (8th Circuit Court of Appeals): Judge Colloton wrote an impressive and highly consequential decision in Brady v. National Football League, 644 F.3d 661 (8th Cir. 2011). Recall that NFL players, after a failed strike in 1987, decertified their union and successfully sued the NFL for damages and equitable remedies in the Minnesota district court. Judge Doty’s 18-year hegemony over this collective bargaining relationship was out of touch with Judge Ralph Winter’s superior understanding of the antitrust labor exemption in National Basketball Ass’n v. Williams, 45 F.3d 684 (2d Cir. 1995). As I noted in a Tulane Law Review article in 2012 (see http://www.tulanelawreview.org/narcotic-effect-of-antitrust-law-in-professional-sports-how-the-sherman-act-subverts-collective-bargaining/), Judge Doty’s flawed approach “addicted” players to antitrust litigation by relieving them of the pain of negotiating concessions during regular labor-management negotiations. Serious students of labor law know that federal courts must stay out of the collective bargaining relationship and leave the parties to their own devices.
In Brady, the district court in Minnesota enjoined the NFL’s lockout of players after the CBA expired. This was a legal victory for the lead plaintiff, Tom Brady. The core issue was whether the Norris-LaGuardia Act divested the district court from enjoining the NFL’s lockout. That law—the product of immense frustration by labor unions with the propensity of federal judges to enjoin their lawful strikes, boycotts, and pickets— all but removed federal jurisdiction in labor disputes.
Brady’s position was that Norris-LaGuardia applied only to court interference with a union’s use of economic weapons. Wanting to have his cake and eat it, too, Brady said that district court had jurisdiction to enjoin the NFL’s reciprocal version of a strike— a lockout.  
Judge Colloton dismissed this reasoning in these terms: “A one-way interpretation of § 4(a)—prohibiting injunctions against strikes but not against lockouts—would be in tension with the purposes of the Norris-LaGuardia Act to allow free play of economic forces and to withdraw federal courts from a type of controversy for which many believed they were ill-suited and from participation in which, it was feared, judicial prestige might suffer. We are not convinced that the policy of the Act counsels against our textual analysis of [NLGA] § 4(a).”
Judge William Riley (8th Circuit Court of Appeals): In Gibson v. Caruthersville School Dist. No. 8, 336 F.3d 768 (8th Cir. 2003), this conservative judge wrote impassioned dissent in support of a probationary teacher who was denied reappointment after a student alleged that this instructor grabbed him by the throat. The teacher exercised his right to a name clearing hearing in a public proceeding. However, after adjournment in the hearing, the school district refused to allow him to continue with his public defense. The lower court denied the teacher’s petition for a hearing on his non-renewal; and the appeals court affirmed.
Judge Riley put a heavy emphasis on procedural due process for public employees in this closely reasoned dissent: “The majority rejects what can be reasonably inferred from the facts: the District had no intention of giving Gibson the opportunity to tell his side of the story, and used available procedural means to effectuate its goal. Following the opening hearing round, the District tried to obtain a settlement and a release from Gibson. When that attempt failed, the District closed a critical portion of the public hearing. When Gibson resisted and filed a petition for writ of prohibition to keep the hearing open, the school board voted against renewing Gibson’s teaching contract. . . . Once the school year ended, the District advised Gibson’s attorney that the termination issue was moot and completion of the hearing was unnecessary.”
Framing this in constitutional terms, Judge Riley reasoned: “The Supreme Court has declared the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed [and] ... the denial of procedural due process [is] actionable for nominal damages without proof of actual injury.”
Judge Thomas Hardiman (3d Circuit Court of Appeals): In an important decision, EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote a unanimous opinion that ruled against Allstate’s former employees. As the company reorganized its business to de-emphasize employment of agents, it gave these employees four options: conversion to independent contractor, a buyout with an interest in their sales account, and two severance pay plans. To execute an agreement, employees were required to sign a release of all claims against Allstate. The EEOC sued for 6,200 agents, alleging that the waiver requirement was unlawful retaliation in violation of Title VII, ADA, and ADEA.
Affirming the lower court, Judge Hardiman ruled that Allstate’s offer to permit terminated employees to convert to independent contractor status was sufficient consideration for the employees’ release of claims against employer; and the employees’ refusal to sign a release was not a protected activity. At the core of this mainstream ruling, Judge Hardiman’s opinion stated that “the EEOC here fails to articulate any good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer.” He added: “We acknowledge the Commission’s concerns about the prospects of employers trading releases for new business opportunities and terminated employees facing ‘financial pressure’ when offered such a deal. But the EEOC fails to explain why this financial pressure is more offensive to the antiretaliation statutes than the pressure one is bound to feel when required to sign a release in exchange for severance pay.”
Associate Justice Allison Eid (Colorado Supreme Court): Justice Eid’s dissenting opinion in City of Brighton v. Rodriguez, 318 P.3d 496 (Colo. 2014), mirrors a growing trend of employer-friendly worker compensation rulings that narrow the “scope of employment” and “arising out of” predicates for a worker’s recovery.
After Helen Rodriguez, a city administrator, talked with co-workers at the top of a stairway at her office, she walked downstairs and fell suddenly. The steps were dry and clear. She did not trip, slip, or lose her balance; nor was she dizzy. At the emergency room, doctors found that she had four unruptured aneurysms on the right side of her brain. Eventually, she had surgery for these aneurysms. At a worker’s comp hearing, a medical specialist for the city testified that the “most likely” cause of Rodriguez’s fall was a fainting or dizziness episode caused by her aneurysms, although he could not state this conclusion with a reasonable degree of medical probability.
One legal issue was whether the claimant’s personal conditions were so far removed from conditions of work that her resulting injuries were outside the scope of employment. Another issue was whether the injury was caused by a “neutral risk”— a factor not associated with employment or the person. In Colorado, examples of compensable neutral risk-injuries include homicide by car thieves while the employee returns from a work errand and death of a farm-hand by a lightning strike while tending to his employer's horses.
The majority classified Rodriguez’s injury in the neutral risk category— a compensable category— stating that an “unexplained fall is necessarily caused by a neutral risk. Because Rodriguez’s fall would not have occurred but for the fact that the conditions and obligations of her employment—namely, walking to her office during her work day—placed her on the stairs where she fell, her injury ‘arose out of’ employment and is compensable.”
Justice Eid dissented. She faulted the majority for “placing her unexplained fall on equal footing with ‘neutral risks’ like car thieves, lightning bolts, or stray bullets. These risks are not merely neutral, however; they are also known.” She continued: “The majority’s error, however, is to expand the concept of ‘neutral risks’ to include injuries that occur at work where the cause is not known. Such an unexplained injury is not categorically ‘neutral,’ as the majority would have it. Rather, an unexplained injury defies categorization…. Unlike an injury resulting from a known, neutral threat, an unexplained fall by definition does not establish causation, and therefore cannot satisfy the claimant’s obligation to demonstrate that an injury arose out of employment.”
Assessment: It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties—even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.

Sunday, July 1, 2018

Death of a Precedent

I pose this question to you: Will the Supreme Court overrule Roe v. Wade?
Put aside CNN, Fox, the New York Times and other news sources. Think about the question in light of this research— my article, “Death of a Precedent: Should Justices Rethink Their Consensus Norms?”
Post your thoughts on FB or email me at mhl@illinois.edu. I’m eager to hear your hunch and your reasoning. 
But first, some info. Roe was decided by a 7-2 vote in 1972 (46 years ago). There were no concurring opinions—a simple 7-2 vote. You might want to think about this information as you read the results of my study.
Here is a summary of my research article:
I explore the birth and death of Supreme Court precedents. Since its inception, the Court has explicitly overruled 205 of these cases. Some were created in a unanimous vote. Others emerged amid strife, a byproduct of polarized voting. My research asks: Did the margin of votes in these precedents affect their longevity? What effect did the number of concurring and dissenting votes have on a precedent’s life? Did the number of concurring and dissenting opinions shorten a precedent’s duration?
This study finds that overruled precedents which were decided with conflict tended to die early, while those decided by consensus usually lived longer. More specifically:
         Overruled precedents lasted an average of 20 years.
         Shorter-lived precedents (20 years or less) had more dissenting votes than longer-lasting opinions. For the former, only 23.6% had no dissenting votes; by comparison, 48.5% of longer-lasting opinions had no dissenting votes.
         Among all overruled precedents, 19% were decided by a margin of one vote (e.g., 5-4 vote).
         A precedent’s longevity was strongly correlated with the margin of votes and number of concurring opinions. Close cases with multiple opinions were more likely than others to be overruled.
I found that 26.3% of the overruled cases had one or more concurring opinions, while 59.5% of these cases had one or more dissenting opinions.
A plausible interpretation is that dissent alone does not shorten the life of a precedent; but when the majority is unable to unite in its reasoning for a ruling this double-layered fragmentation hastens the overruling of a precedent. In other words, the most fragile overruled precedents are those where the majority’s disarray compounds the effect of dissenting votes.
Given the centrality of stare decisis (precedent as establishing the rule of law), dissensus must be kept in check. If the Court is to maintain its vitality and pre-eminence, its overruled precedents should live longer. To the extent that Justices write a concurring opinion or vote to dissent in order to plump their reputations; or indulge a personal fancy, or reserve an issue for a future case, or cement their place in history as a swing voter or great dissenter, these judicial vanities infect precedents with dysfunction. The better approach is to reinvigorate the Court’s consensual norms—for example, by narrowing holdings to attract larger voting margins, and encouraging more communal decision-making.