A Valentine Remembrance of Prof. Gene Gressman

INS v. Chadha is a big case—again— in light of President Trump’s travel ban. My constitutional law professor at the University of North Carolina, Gene Gressman, argued the case to the Supreme Court in 1983. His client? The U.S. House of Representatives. 

Mr. Chada came from Kenya to study in the U.S. When his visa expired, he was to return home. The problem was that he was born to Indian parents in Kenya. Kenya would not let him return; India wouldn’t take him; nor would Great Britain, the nation in control of Kenya in 1963, when Chadha was born. So, he was a stateless man—truly a sympathetic figure.

Applying immigration law, the executive branch set out to deport him anyway. The Ninth Circuit—the same court that struck down Trump’s ban— struck down the deportation order. 

Next, the House of Representative passed a legislative veto of the Ninth Circuit’s ruling. Essentially, the House said that the court undercut immigration law by circumventing the student visa, albeit for humane purposes.

In other words, the House said this is a separation of powers problem—we, the Congress, make laws and the president only enforces our will.

Prof. Gressman—a leading authority on litigating before the Supreme Court—represented the House of Representatives. He lost. Chadha was allowed to stay (to which Prof. Gressman expressed relief on a personal basis).

Today, Chadha looms large if Trump takes his executive order to the Supreme Court. 

He’ll argue that the case is strong authority for the executive branch to administer immigration laws with a free hand. (Prof. Gressman would say, "You see, that's what I was afraid of, an unchecked president.")

Intriguingly, the State of Washington would make three "Chadha" arguments.

The case is authority for using immigration law to benefit stateless people (e.g., Syria). Second, because a stateless man such as Chadha won before the Supreme Court, "banned" travelers (i.e., outsiders) have standing to sue. Third, the president does not have unlimited power-- and that was Prof. Gressman's main point in taking the case. (We were only a decade past the Nixon years of "executive privilege" arguments-- the same arguments that are surfacing today).

....

So why the Valentine for my now-departed professor? On Valentine’s Day in 1985, he came to class dressed in a Pink Panther costume, head-to-toe. As the hour progressed, he began to take off parts of his elaborate costume. When he got down to his old-man t-shirt, we shouted, “That’s far enough—please don’t take off anything more!” He laughed and asked what took us so long—and wished us a happy Valentine’s Day.

Gene Gressman was a Quaker. He was granted conscientious objector status in WW II. He then spent six years as a law clerk for Justice Murphy. No one worked as a clerk longer than Gene Gressman—and Justice Murphy showed compassion by holding this job open for Gene. Later, Gene wrote the leading book on how to argue cases before the Supreme Court. A humble man, he told us that it is a professor’s fate to be an expert on arguing to the Supreme Court while losing your case there.

With love and enduring appreciation to Prof. Gressman—thank you for being a professor who touched our lives so deeply.