• April 18, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.

    by Joshua Matz, Associate,  Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    There has just been a major development in the emolument clause litigation: CREW, which famously filed the first emoluments case on Trump’s first full day in office, has amended its complaint. In addition to bringing two new plaintiffs into the litigation—each with distinct and compelling theories of injury—CREW has produced a formidable and detailed list of Trump’s constitutional violations. 

    There is a lot to say about this development. For now, I will focus on a recent article with leaked information about how Trump’s lawyers might seek to defend him.

    Last week, the New York Times reported the DOJ will argue that “the court has no authority under the separation of powers doctrine to intervene; that power lies with Congress.” This suggests that Trump’s lawyers will rely on the so-called “political question doctrine,” which, in very limited circumstances, deprives federal courts of the power to decide constitutional questions.

    Such reliance would be grossly misplaced. Applying the political question doctrine here would require the court to rewrite and invert the plain text of the Foreign Emoluments Clause. It would be nothing short of absurd to deem the Foreign Emoluments Clause a “political question.” Indeed, as I will show in this post, that conclusion would require some heavy editing of the Clause:

    [N]o Any Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, may accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, unless Congress is informed and thereafter denies consent.

    (I will not address the Domestic Emoluments Clause, for reasons that will soon become apparent.)

  • April 18, 2017
    Guest Post

    by Jim Brosnahan, Senior Trial Counsel, Morrison & Foerster, and Author of the Upcoming Book: Trial Lawyer

    The Gorsuch confirmation hearings were, even to a casual observer, a catastrophic insult to the proper selection of a justice. Even by the standard that such hearings are political and not legal events, it highlighted the current failure of the practice of the political arts. Any selection of a Supreme Court Justice with lifetime tenure is a politically sacred happening. At this time, the reckless, almost daily, unconstitutional bursts of illegal energy emanating from the White House and supported by an attorney general who missed the Constitutional Law class will present a series of clear and present fundamental legal challenges to the Supreme Court. Nothing in what now-Justice Gorsuch testified to or what the ten million dollars in TV ads supporting him said gave the slightest assurance he will uphold the Constitution against this president. In all likelihood, that set of potential constitutional issues involving executive excess is the number one potential legal challenge that will face the Court in the next year or two.


    1. “He is qualified”

  • April 18, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: “The Future of the U.S. Constitution

    by Anurima Bhargava, Leadership in Government Fellow, Open Society Foundation and Senior Fellow, Harvard Kennedy School

    Over the past few months, school administrators and teachers have raised concerns about a rise in harassment and bullying in schools; indeed, a significant percentage of the incidents of hate or bias being reported are occurring in the nation’s K-12 schools. At the same time, school officials are concerned about a drop in attendance of students who are undocumented, or who have family members who are undocumented. These students are afraid of being picked up at or on the way to school, or that they will return home and members of their family will be gone. Throughout the country, children are experiencing the loss of dignity and the rise of fear.

    Since January, legislation banning undocumented students or the children of undocumented parents from schools has already been suggested in a few jurisdictions, and the White House is bringing in individuals who have long sought to end birthright citizenship, purportedly to stop mothers from running across the border (or jumping over the proposed wall) to give birth and to save the funds that would be expended upon the education of children born in the United States. 

    The Supreme Court weighed in on the Constitutionality of measures to limit or restrict the ability of students to attend school based on their or their parents’ immigration status in its 1982 decision in Plyler v. Doe.The Court struck down two Texas laws that sought to withhold state funding for the education of undocumented children and authorize school districts to deny public school enrollment to undocumented children. 

  • April 18, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: “The Future of the U.S. Constitution

    by Steve Vladeck, Professor of Law, University of Texas School of Law

    The so-called “entry fiction,” pursuant to which “arriving aliens” stopped at the border are treated, for at least some constitutional purposes, as if they are not actually on U.S. soil, has been a point of controversy in judicial doctrine and legal scholarship for generations—and remains so today. But the one point on which there has been common cause has been its inapplicability to individuals living in the United States—regardless of how they got here or their current immigration status. Indeed, the Supreme Court has so held in an unbroken line of cases stretching back to the 1880s, since a contrary reading would suggest that undocumented immigrants could be tried without due process; could be subjected to cruel and unusual punishment; and so on.

    Among other things, these decisions, from Yick Wo v. Hopkins to Wong Wing v. United States to Mathews v. Diaz to Plyler v. Doe, have provided important if implicit bulwarks against a true nativist turn in constitutional law. Even during periods of heightened anti-immigrant sentiment, they have generally prevented the political branches from singling out undocumented immigrants for anything other than deportation. And if undocumented immigrants cannot be singled out for especially restrictive measures, it follows a fortiori that those with lawful immigration status cannot be, either.

    But at the Supreme Court’s Conference earlier today, one of the appeals it was deciding whether to hear involves a direct assault on these precedents—and on the rights of undocumented immigrants living within the United States. Indeed, I fear it is no exaggeration to suggest that, if the justices leave the lower court’s ruling intact, it could open the door to a far more aggressive—and alarming—nativist turn in immigration enforcement on the home front.

    The dispute in Castro v. U.S. Dep’t of Homeland Security arises from the 1996 immigration reform laws, which created a new category of “expedited removal” for individuals stopped at the border without proper documents. To give teeth to the “expedited” part of expedited removal, Congress provided for very limited judicial review in such cases—review that, among other things, does not allow for the judicial consideration of asylum claims such as those pressed by many of those caught up in the 2014 Central American migrant crisis, including the petitioners in Castro. And although courts initially construed these restrictions narrowly to not preclude access to writs of habeas corpus, Congress in 2005 narrowed their habeas authority in such cases, as well.

    In Castro, 28 women (and their minor children) who made it into the United States before being arrested and placed in expedited removal proceedings argued that they were legally entitled to asylum (and, thus, to not being removed from the country). Because the 1996 immigration laws, as interpreted by the Justice Department and as amended in 2005, deprived them of the right to even press that claim in court, they argued that these laws violated the right to judicial review of their detention guaranteed by the Constitution’s Suspension Clause.

  • April 12, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: “The Future of the U.S. Constitution

    by Chiraag Bains, Visiting Senior Fellow, Harvard Law School, Criminal Justice Policy Program. Follow Chiraag on Twitter: @chiraagbains

    Constitutional law is driven in part by public and judicial attitudes about the security of our core American values: liberty, equality, democracy and human dignity. Narratives about the extent to which government threatens, or does not threaten, these values can shape how easy or difficult the courts make it to enforce constitutional rights and how narrowly or expansively courts read those rights. This suggests that the Trump Administration — which has singled out certain minority groups and backed away from civil rights enforcement — might push courts to rethink current doctrine and make constitutional protections more robust.

    With respect to civil rights, two of the most consequential narratives in recent years have been (1) that claims of racial discrimination are overblown and we are approaching a post-racial reality; and (2) that misconduct by law enforcement is limited to the acts of a few bad apples.

    The post-racial narrative is familiar by now. Slavery ended 150 years ago. You will not find a “whites only” waiting room or drinking fountain in America. Minorities run Fortune 500 companies, appear in mainstream media, and serve in Congress. And of course, we elected — and reelected — our first black president. 

    This narrative has played a role in the Supreme Court’s contraction of protections against racial discrimination.