• December 11, 2015

    By Jim Thompson

    In The New York Times , ACS Board of Directors member Linda Greenhouse concludes that the Supreme Court’s refusal to hear an appeal challenging a Chicago suburb’s ban on assault weapons speaks more to the chasm on the Court’s conservative flank and less to the chamber’s stance on the Second Amendment.  

    On Thursday, Connecticut Gov. Dannel P. Malloy announced that The Constitution State will become the first in the country to bar people on the federal no-fly list from purchasing fire arms, says Rachel E. Gross at Slate.

    On Wednesday, three couples filed a federal lawsuit targeting a North Carolina law that “allows magistrates to opt out of officiating marriages with which they have a religious objection to, including a same-sex union,” reports Chris Johnson at The Washington Blade.

    Justin Miller at The American Prospect writes about the mounting pressure for President Obama to follow through on promises of campaign finance reform and sign an executive order requiring federal contractors to fully disclose their political spending. 

  • December 10, 2015
    Guest Post

    by Ira C. Lupu, the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle, the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University. They are the co-authors of Secular Government, Religious People (Eerdmans Publishing Co., 2014).

    Constitutional lawyers and immigration experts have offered conflicting opinions on the constitutionality of Donald Trump’s proposal to prohibit Muslims from entering the United States. Some constitutional scholars have argued that the proposal violates the Constitution. Immigration experts, including Professor Gulasekaram and others, have expressed doubt that an American court would strike down such a plan, in light of the broad authority over immigration policy that the Supreme Court has recognized in the Congress and the President.

    Prior decisions by the Supreme Court have indeed confirmed that immigration policy may rest on considerations of national origin and ancestry. But no decision by the courts has confronted an exclusion based on religion, and any such policy is constitutionally doomed.

    The reason is probably not religious favoritism, which would be fatal to any domestic policy that preferred members of one faith to others. Instead, Trump’s policy certainly offends the Constitution because it would require the government to decide who belongs to the Muslim faith.

    Imagine the process for obtaining a visa to enter the United States, as a tourist, student, or any other relevant status. The applicant completes a form. In addition to the current questions, the Trumpian form might ask “Are you a Muslim?” or it might have a broader question about faith, with boxes to check like “Muslim,” “Christian,” “Jewish,” or “Atheist.” Anyone who answers “Muslim” will be denied a visa. So far, the inquiry alone violates no constitutional norms, although the policy of denying entry to self-admitted Muslims is constitutionally questionable.

    But what happens with an applicant who comes from a predominantly Muslim country, or has a name that suggests a Muslim heritage, yet checks a box other than “Muslim?” Will the system depend entirely on the applicant’s declaration? That system would collapse.  Any Muslim who wants to enter the U.S. and is willing to deceive will do so. Now what?  For the system to work, every applicant would have to be interrogated. And what would be the relevant questions? “Do you believe that there is only one God, and his name is Allah”?  “Do you believe that the Quran is a sacred text”? The government cannot exclude someone as a Muslim unless there are criteria for determining which beliefs characterize one as a follower of Islam.

    At this point in the process, the First Amendment’s Establishment Clause kicks in with a vengeance. The Clause is in the Bill of Rights, but it does not function as an individual “right.” Instead, it imposes a limit on the character and jurisdiction of the government.  The people of the United States belong to many faiths or to none, but the government itself has no religious identity. It is secular. Congress has no power to contravene this principle, whether or not the matter involves immigration.

  • December 10, 2015
    Guest Post

    by William G. Merkel, Associate Professor of Law, Charleston School of Law

    This week, the Supreme Court declined to hear the case of Friedman v. Highland Park. By denying Friedman’s petition for a writ of certiorari, the Court let stand the moderate and sensible opinion of Seventh Circuit Judge Frank Easterbrook upholding Highland Park’s assault weapons ban against a Second Amendment challenge. The announcement prompted a vigorous dissent by Justice Thomas (joined by Justice Scalia).

    Seventy-five years ago, Justice Frankfurter cautioned against reading too much into Supreme Court decisions to deny cert and, in particular, against assuming that the failure of particular justices to join a written dissent indicated agreement that the case should not be heard or that the decision below was correct. But Monday’s decision has been much discussed these past few days among Supreme Court watchers and political pundits. It counts as a very big deal among gun rights enthusiasts and gun rights skeptics who have been vigorously litigating, lobbying and politicking all questions related to gun control and gun rights since the Supreme Court first enforced a Second Amendment right in District of Columbia v. Heller in 2008.

    That case, and Justice Scalia’s opinion for a 5-4 majority, recognized (or, as some naysayers would have it, invented) a right to have operable handguns in the home for purposes of self-defense. But Scalia’s Heller opinion did much more. It also stated that the Second Amendment right rests in the ability to keep and bear arms for purposes of confrontation and then proceeded to list (without any explanation) various types of presumptively valid regulations and restrictions, including prohibition on possession by felons and the mentally ill, exclusion of guns from certain sensitive places such as schools and government buildings, and barring possession of uncommon or dangerous weapons. The Heller decision was extended to reach gun restrictions enforced by states and municipalities in McDonald v. City of Chicago in 2010. The McDonald plurality, per Justice Alito, expressly endorsed Justice Scalia’s definition of the right and his list of presumptively valid regulations in Heller. In sum, Heller and McDonald were seen as victories for champions of gun rights because they announced that the Second Amendment right was judicially enforceable, applicable to individuals in contexts wholly unrelated to militia service, and binding on all levels of government. But the two decisions left open more questions than they answered, and the adjudication of those open questions in the lower federal courts over the past few years has provided grounds for considerable optimism to citizens and politicians favoring gun regulation.

  • December 10, 2015

    By Jim Thompson

    Joseph Blocher, co-faculty advisor to the Duke Law ACS Student Chapter, writes in The New York Times that implementing gun laws at the local level of government may provide an effective way forward in the broader debate about gun rights and regulation.

    At The Atlantic, Gillian Thomas criticizes a loophole in Title VII of the 1964 Civil Rights Act that allows employers to restrict a job to men only or women only if they can reasonably prove that only one sex can effectively carry the duties of that profession.

    At Salon, Amanda Barcotte blasts Abigail Fisher for her race-baiting Supreme Court case that seeks to bolster subpar white university applicants and avenge a personal grievance from almost a decade ago.

    At the Global Legal Post, ACS Board of Directors member Reuben Guttman reviews Spotlight, a film about the use of private forums and sealed proceedings to resolve matters of potential public importance, and comments on the growing prevalence of mandatory arbitration clauses in the American legal system.

    Public Justice’s Arthur Bryant speaks with CNBC about a longtime defect in a popular firearm. Public Justice’s legal action against the Remington Arms Company has forced the unsealing of voluminous documents that reveal the company has known for years that a defect in its model 700 rifle causes it to fire without the trigger being pulled.

  • December 9, 2015
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law, Santa Clara University School of Law. Professor Gulasekaram teaches constitutional law and immigration law, and is co-author of The New Immigration Federalism (Cambridge Press, 2015).

    Every semester in immigration law class, we begin by reading the Supreme Court cases from the late 1800’s that established the scope of federal immigration power. Those cases – dubbed the Chinese Exclusion Cases – upheld the constitutionality of federal laws that banned immigration of Chinese and made resident Chinese deportable unless they could show a certificate of residence or provide evidence of their residency, with the testimony of white witnesses. In those cases, the Court chose to defer to the judgment of the political branches and established the plenary federal power to exclude non-citizens.  Such power shielded Congress’ outright racial and national-origin exclusions, and discriminatory deportation standards from judicial review. It was an immigration policy the United States would maintain and even extend to other national origin groups until it finally repealed such exclusions in the mid-1900’s. 

    After reading those foundational cases, I usually pose a hypothetical to my class asking whether a statute passed by present-day Congress that barred immigration from predominantly Muslim countries and which called for the prioritized deportation of immigrants from predominantly Muslim countries would be constitutional. In essence, the hypothetical is intended to query how we should understand the continued vitality of the Chinese Exclusion Cases and the principle of plenary federal power over immigration they enshrined. Almost every time we engage in the exercise, at least some students remark that such a statute could never be enacted today, based on how we’ve evolved as a pluralistic society.

    Incredibly, as the past few weeks have shown, such blatant discrimination may not be just a theoretical exploration after all. Rather than rely on a fictional creation, I could have just quoted from the various proposals from state governors, presidential candidates, and members of Congress, first to ban all Syrian refugees, then to ban Syrian refugees who are Muslim, and more recently, by Donald Trump, to exclude all Muslims from entering the country.

    There is no doubt that such statements from prominent officials and presidential candidates are corrosive. They affect the way we view those in our society who share that religious or national background, and provide fodder for those who mistakenly believe that the fight against terrorism and extremism is a war against all 1.6 billion Muslims (approximately 1/4th of the world’s population), many of whom are fleeing the same violence these proposals misguidedly intend to address.

    But beyond the wisdom and desirability of these proposals, would they be constitutional? As I have written elsewhere, and as others contributors have argued on this blog, state-level opposition to Syrian refugees is not legally viable.

    State governors cannot dictate our refugee policy, and are barred from discriminating against certain noncitizens on the basis of national origin or religion.

    But what about proposals at the federal level that ban the admission of any Muslims or those applying from predominantly Muslim countries? For those unfamiliar with immigration law, these would seem to be easily resolved as well. One would think that straightforward application of constitutional provisions like the equal protection guarantee, the due process clause, and the First Amendment would quickly diffuse any such attempts. But, the reality is that the Court has never used these constitutional principles to limit federal admission and exclusion policy.  As it turns out, the Chinese Exclusion Cases have never been overruled and, ostensibly, remain good law.