• June 28, 2017
    Guest Post

    by Ira C. Lupu, F. Elwood and Eleanor Davis Professor Emeritus of Law and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, George Washington University Law School

    In Trinity Lutheran Church (“TLC”) v. Comer, the Supreme Court confronted a novel question – does the Free Exercise Clause require a state to treat houses of worship identically with other non-profit entities seeking a discretionary grant aimed at enhancing health and safety? By a 7-2 vote, the Court said yes. The number of votes for the result, however, masks very deep divisions among its supporters about Religion Clause and federalism principles.

    The case involved Missouri’s program for grants to subsidize the cost of resurfacing playgrounds with materials from scrap rubber tires. TLC had applied for such a grant, and the Missouri Department of Public Resources denied the grant solely on the basis of a provision in the State Constitution that prohibits public funding of houses of worship.

    In an opinion by Chief Justice Roberts, the Court brushed aside concerns of federalism and church-state separation. Instead, the opinion focuses on discrimination based on “religious identity,” and asserts that state interests in church-state separation cannot justify such discrimination. If a state creates a public benefit, even if not widely available, it may not categorically exclude houses of worship. In this case, the purpose of the grant – playground safety – reinforced this approach.  

    The opinion fails to engage seriously with the Religion Clause principles implicated by these facts. The three decisions on which the Court relies did NOT involve discretionary benefits OR houses of worship. In Widmar v. Vincent and Rosenberger v. Rectors and Visitors, the Free Exercise Clause played no part whatsoever. And all three, including McDaniel v. Paty, involved denial of separate constitutional rights to religious persons or groups, not the denial of funds to religious entities.

  • June 26, 2017

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

    On June 26, the Supreme Court agreed to hear cases involving the travel ban and also reinstated portions of the ban. Specifically, the Court will hear the case during the October 2017 term and also allow sections 2 and 6 of the travel ban to be applied to foreign nationals “who lack any bona fide relationship with a person or entity in the United States.” This outcome is both disappointing and confusing.

    The travel ban (sometimes known as a Muslim Ban) refers to an Executive Order signed by President Donald Trump on March 6, 2017. This Executive Order is the second of its kind and among other provisions, suspends the entry of foreign nationals from Iran, Libya, Sudan, Somalia, Yemen and Syria for a period of 90 days; freezes the refugee admissions program for a period of 120 days; and slashes the refugee numbers by one half. The litigation around Muslim Ban 2.0 was immediate and resulted in two federal court decisions blocking the most controversial portions of the travel ban. These decisions were upheld by appellate courts. On June 1, the government filed papers in the Supreme Court appealing these decisions and also asking it to reinstate the travel ban.

    The June 26 decision opens with a history of the travel ban and the constitutional and statutory arguments made before the federal courts. The prevailing constitutional argument raised was that the travel ban violates the Establishment Clause of the First Amendment. The primary statutory argument surrounded whether the travel ban violates a section of the Immigration and Nationality Act that prohibits discrimination with regard to the issuance of immigrant visas.

  • June 20, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium considers topics featured at the three day convention, which took place on June 8-10, 2017. Learn more about the Convention here

    by Jeff Mandell, Partner, Stafford Rosenbaum LLP

    The ACS National Convention is always an opportunity to see old friends, to make new connections, and to be inspired. But one of my favorite aspects of the convention is that I always learn something new. As I reflect on this year’s convention, the session that resonates with me is the one on antitrust law. This is particularly surprising because I have never worked on an antitrust case, never took an antitrust class and truly have no knowledge of antitrust law beyond what I have gleaned by osmosis over the years.

    The panel discussion—titled “A Second Gilded Age: The Consolidation of Wealth and Corporate Power”—was engaging and illuminating. It provided a basic overview of the history of antitrust regulation, the evolution of the key theories courts use in evaluating antitrust claims, and a window into new thinking in the academy and how that might apply in practice. This is a tall order for ninety minutes, and the panel was expertly moderated by Ganesh Sitaraman, a professor at Vanderbilt Law School whose recent book, The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic, is garnering acclaim. Professor Sitaraman kept the conversation moving, but also posed pointed questions to specific panelists, ensuring that the discussion was balanced and did not veer into arcana.

  • June 19, 2017
    Guest Post

    *This piece originally appeared on JOTWELL.

    by SpearIt, Associate Professor of Law, Thurgood Marshall School of Law

    Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN.

    Why is it so easy for police to kill Black people?

    The answer to this question is urgent in light of ongoing police violence across the country. Virulent videos of Blacks subjected to police aggression have spread nationwide by phones, computers, TVs and tablets. These troubling, yet spectacular visuals, have pulled the covers back to allow mainstream America to see the dark and ruthless nature of law enforcement. Unarmed Blacks have senselessly died by strangling, tasing, and shooting in the back at the hands of police. Recently reported was an unarmed man shot despite his being on the ground with hands raised in surrender. Another was reportedly killed despite lawfully carrying a firearm. The ample proof of police wrongdoing raises alarming flags about the status quo, where police killing of Blacks is prevalent and successful prosecution of police is not.

    In this article, Devon Carbado offers a compelling answer. He asserts that Fourth Amendment doctrine paves a path for police to engage civilians, especially Blacks, in ways that escalate into violence and death. Police officers are embodied with various levels of discretion in their enforcement efforts, and can be motivated by social motives, including cultural biases. Carbado shows, with meticulous detail, how Fourth Amendment doctrine leaves racism virtually unchecked in policing practices. Rulings by the Supreme Court on search and seizure make it clear that where police have a pretext to stop a person on the street or in a vehicle, the seizure is lawful so long as the officer has a requisite level of suspicion to make the stop. That there is little constitutionally to curb the police’s use of discretionary power when choosing one person over another puts a sarcastic twist on the meaning of “con” law.

  • June 19, 2017

    by Christopher Wright Durocher

    Wednesday’s horrific shooting during a practice for members of the GOP congressional baseball team was an unnecessary reminder of the prevalence of gun violence in the U.S. The event was notable for its high-profile victims, including Rep. Steve Scalise (R-La.), a member of House’s Republican Leadership, but it was otherwise bleakly common—an average of 90 people die from gun violence each day and, by some counts, this was the 195 mass shooting of 2017 (the 196th mass shooting occurred hours later in San Francisco).

    The incident, which left five wounded, including a congressional aide, a lobbyist and two Capitol Police officers, was described by Breitbart with the headline “Man Opens Fire on Congressional Baseball Practice; Good Guy with Gun Shoots Back.” The “good guys with guns” narrative is an all too common trope we hear from the NRA and its allies after a high-profile shooting, particularly mass shootings. In 2012, a week after the Sandy Hook massacre left twenty-six dead, including twenty children, NRA Executive Vice President Wayne LaPierre said, “The only way to stop a bad guy with a gun is with a good guy with a gun.” Since that time, this trope has been deployed in response to mass shootings to justify expanding gun availability and ownership and reducing or eliminating gun safety regulations. The only problem is that there’s no evidence that it’s true.

    The epidemiology of mass shootings is complicated and anything but straightforward. That said, there are some things we do know. A review of mass shootings between 2000 and 2012 published by the FBI reveals that the median response time for police is three minutes. Admittedly, three minutes is a long time when facing an armed assailant, and with the aid of high-capacity magazines and semi-automatic weapons, shooters are capable of inflicting grievous damage in such a short time. As Rep. Mike Bishop (R-Mich.), a witness to Wednesday’s attack, observed, “He had a rifle that was clearly meant for the job of taking people out, multiple casualties, and he had several rounds and magazines that he kept unloading and reloading.”