Frederick Douglass Was My Founding Father

This is the second piece in a month-long blog series that celebrates Black History Month by highlighting the contributions of Black thinkers and leaders to the development of American constitutional thought.

Only two national holidays celebrate individual Americans. Presidents Day honors George Washington (born February 22^nd) and Abraham Lincoln (born February 12^th) and Martin Luther King Jr. Day honors Dr. King (born January 16^th) and his contributions to civil rights. There is no corresponding holiday honoring Frederick Douglass, a towering figure in U.S. history, who celebrated his birthday on February 14^th.[i]

Washington is lauded as the “father of the nation,” Lincoln is credited with preserving it, and King is praised for holding it to its constitutional ideals. And yet, we would do well to pay equal or arguably greater attention to Douglass, the figure, perhaps more than any other, who laid the intellectual and political foundation that put America on course to become a multiracial democracy.

Consider some counterfactuals. What if we’d had Lincoln without Douglass? Although Lincoln personally opposed slavery, he was far from an abolitionist. For most of his career, Lincoln recoiled at the idea of free Blacks living alongside whites (“What next? Free them, and make them politically and socially, our equals?”) and declared his opposition to Black people having the right to vote, to serve on juries, and to hold office.

Until the eve of the Civil War, Lincoln did not imagine that slavery would end in the United States within his lifetime. It’s not hard to imagine that, without Douglass (and other abolitionists) pushing him and pushing the slavery debate to its boiling point, Lincoln would likely have steered the nation towards another 50 years of Southern appeasement.

Without Douglass, even Dr. King’s legacy would be in doubt. There could be no March on Washington without the Emancipation Proclamation, which preceded it 100 years prior. There could be no Civil Rights Act or Voting Rights Acts without the Fourteenth and Fifteenth Amendments, which forever transformed American conceptions of citizenship, equal protection, and suffrage.

Of course, these counterfactuals share a fatal flaw. They rely too heavily on the Great Man theory of history, which tends to overemphasize the contributions of individuals—usually white, male ones—in shaping the course of human events, underestimating the way events shape us.

We can’t know for sure whether, in the absence of Douglass, abolition and equality for Black Americans would have progressed more or less quickly. We can only point to the indelible fingerprints that Douglass did leave on the nation’s psyche—and the tools and methods he left for future generations of freedom seekers.

Progressives are generally familiar with Douglass’ history as a fierce critic of injustice, underlining the flagrant inconsistencies between America’s founding myths and its practices. It’s become something of a ritual in social justice circles. Every Independence Day, someone will resurface Frederick Douglass’s iconic question: “What to the Slave is the 4^th of July?” and its equally iconic answer—"a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim.”

Fewer are familiar with Douglass’ full-throated defense of the Constitution as a “glorious liberty document,” within the same speech and the positive vision of what America could be that he strived to promote throughout his life.

Douglass described the Constitution as a document with “principles and purposes entirely hostile to the existence of slavery,” a constitutional vision set him apart within contemporary discourse. Meanwhile, Lincoln held the more widely shared viewpoint that the Constitution restrained the federal government from abolishing slavery. On the eve of the Civil War, as a last-ditch effort to compromise with the South, Lincoln supported a constitutional amendment that would have made this interpretation explicit, permanently enshrining slavery in the Constitution.

Douglass’s approach was also distinct from that of white abolitionist radicals, led by William Garrison who denigrated the Constitution a “pact with hell” because it contained provisions protecting the power of slaveowners. Because he considered the republic irreparably tainted, Garrison refused to engage in electoral politics and called for dissolution of the Union. While this stance was in theory more radical than Douglass’ (and perhaps more accurately reflected the founders’ intentions), in practice, both Lincoln’s and Garrison’s interpretations conceded that there would be no abolition of Southern slavery in the foreseeable future.

It was certainly not lost on Douglass that many of the so-called founding fathers had owned slaves or that oblique references to slavery were peppered through the document.[ii] He simply refused to let these inconveniences stand in the way of using the Constitution as an instrument to push for justice and equality—especially when more favorable readings were available. As Douglass put it, “nothing but absolute necessity, shall, or ought to drive me to such a concession to slavery.”

Rather than focusing on the founder’s intentions, Douglass centered the polity and purposes set forth in the Constitution’s preamble. Douglass noted that, by its own terms, the Constitution’s protections transcended lines of race, gender, or even citizenship.

"We, the people"—not we, the white people—not we, the citizens, or the legal voters—not we, the privileged class, and excluding all other classes but we, the people; not we, the horses and cattle, but we the people—the men and women, the human inhabitants of the United States, do ordain and establish this Constitution.”

Douglass found similar support for abolition in the terms of the Fourth, Fifth and Eighth Amendments, which refer to persons without reference to color or other status.

Centering his own common sense and lived experience, Douglass declined to give anyone else, even the Supreme Court, the last word on interpreting the Constitution. In the aftermath of the Supreme Court’s 1857 Dred Scott decision, in which the Court declared that Black Americans were not citizens and were therefore ineligible for the Constitution’s protections, Douglass’ reminded his listeners, “the Supreme Court of the United States is not the only power in this world.”

Incredibly, despite the devastating ruling, Douglass declared that his hopes for abolition were “never brighter” and predicted that “this very attempt to blot out forever the hopes of an enslaved people may be one necessary link in the chain of events preparatory to the downfall and complete overthrow of the whole slave system.” Even more incredibly, he was right.

Although Douglass’ interpretation of the Constitution was not widely shared before the war, it gained support over the course of the Civil War and in its aftermath. Under heavy pressure from Douglass and the abolitionists, Lincoln issued the Emancipation Proclamation on January 1, 1863, even though in the leadup and aftermath of the proclamation, many in the legal community expressed serious doubts of his constitutional authority to do so.

By 1865, Douglass’ expansive view of the anti-slavery constitution had found considerable support in Congress. Both houses passed a bill that would require Southern states to abolish slavery in order to be readmitted to the Union, claiming the requirement was within the United States’ constitutional authority “to guarantee a republican form of government to every state.” While Lincoln would veto the bill as unconstitutional, it set the tone for Radical Reconstruction, an unprecedented federal effort to secure the rights of Black Americans through a mix of legislation and constitutional amendments.

Douglass’ theory of the Constitution was most readily reflected in the language and text of the Fourteenth Amendment, which famously extended the equal protection of the law to “all persons” and enshrined the principle of birthright citizenship in the Constitution, overturning once and for all the shadow of Dred Scott and planting the seeds for a truly multiracial democracy.

One can find echoes of the eighteenth century’s battle over the potential and limitations of the Constitution in current debates. Analysts report that the United States is at its most divided since the Civil War. The nation reels in the wake of Dobbs v. Jackson Women’s Health, a deeply polarizing decision which, like Dred Scott, relied upon the purported intentions of the founders to limit constitutional rights.

A considerable segment of progressives and radicals believe that our country’s institutions are irreparably tainted and should be cast off entirely. Meanwhile, progressives in positions of power frequently bemoan the injustices that they would like to see eliminated, but point to constitutional or institutional limits that prevent them from taking action.

In this moment of national crisis and opportunity, President Biden speaks often about “restoring the soul of the nation” and has made a point of referring back to Lincoln, including in his State of the Union address. If we are to repair the nation’s divides and restore its soul, however, it’s not Lincoln whom we should look to, but to Douglass.

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[i] Like many people born into slavery, Douglass never knew the exact day of his birth. He chose to celebrate his birthday on Valentine’s Day based on one of his few clear memories of spending time with his mother—her presenting him with a heart shaped piece of cake. In his life as in his politics, he chose to place love at the center of everything.

[ii] Some examples include clauses that prohibited Congress from ending the African slave trade before 1808 but did not require that it ever be ended, counted slaves for the election of the president through the electoral college and the three-fifths clause, and, guaranteed that fugitive slaves would be returned to their owners.

____________

Taonga Leslie is ACS' Director of Policy and Program for Racial Justice.

Reclaiming the Abolition Amendments

This is the first piece in a month-long blog series that celebrates Black History Month by highlighting the contributions of Black thinkers and leaders to the development of American constitutional thought.

Black people have been excluded from the decision-making process at nearly every significant moment in constitutional law. We were not present for the drafting of the Constitution itself, or for the Thirteenth and Fourteenth Amendments. We did not gain a voice on the Supreme Court until 1967—and by that point, our interests were about to be pushed to the margins by an increasingly right-wing judiciary. Only eleven senators have ever been Black. Our role in constitutional law tends not to be that of the decision maker, but of litigants against the government, employers, or landlords. Very often, we are the ordinary people seeking to vindicate our rights—yet the standards set to adjudicate those rights (including the so-called “originalism” currently dominant on the Supreme Court) frequently center the perspective of an “ordinary person” who looks nothing like us. Centering our understandings of the Constitution—and particularly the Reconstruction amendments, in what they meant to newly enfranchised Black citizens (and their abolitionist white allies in Congress)—would dramatically expand our view of what the Constitution makes possible, and provide powerful tools to support modern movements for liberation.

Even prior to the Civil War, Black thinkers like Frederick Douglass departed from mainstream interpretations to highlight the potential of the Constitution as an abolitionist document, by underlining the fundamental tension between slavery and democracy. During the Civil War, Black Americans played a key role in ensuring the Union’s victory by defying slavery and abandoning plantations to work in service of the Union Army. After the war, Black Americans moved swiftly to make their freedom tangible. As Dorothy Roberts describes it:

"four million formerly enslaved people grabbed the opportunity Emancipation afforded them to create their own economic, social, and political lives independent of white domination. They gathered their family members, established farms and businesses, and ran for public office. Black Americans elected to southern legislatures helped to install egalitarian state constitutions, enact civil rights legislation, and establish public education. . . . Thus, by resisting white domination and acting like citizens, [B]lack people have secured greater freedom apart from official recognition of their rights, thereby changing the Constitution’s meaning to encompass their freedom."

To Black Americans, the Reconstruction Amendments guaranteed their right to establish and protect this new society. A proper understanding of the Reconstruction Amendments’ original public meaning must be consistent with that project.

The Meaning of the Abolition Amendments

For the freedmen and their abolitionist allies, the Thirteenth Amendment’s prohibition of slavery meant not merely to eradicate the prior institution of chattel slavery, but to prevent its return or replacement in all but name. In arguing for the Amendment’s passage, Sen. Henry Wilson—a lifelong abolitionist who had himself spent 10 years in indentured servitude—declared that it would “obliterate the last lingering vestiges of the slave system; its chattelizing, degrading, and bloody codes; its dark, malignant, barbarizing spirit; all it was and is, everything connected with it or pertaining to it.” To this end, the Amendment was designed to encompass not only the conditions of subjugation but also the badges and incidents of slavery. Congress made some of those badges and incidents—including restraints on marriage, family relations, speech, property, education, and status within the legal system clear in their debate, but reserved the power to legislate against additional ones.

The Fourteenth Amendment went farther, clarifying that abolition was to mean equality before the law. The Citizenship Clause embedded the abolitionist concept of birthright citizenship in the Constitution, pushing back against Southern state efforts to restrict Black liberties after slavery’s abolition. The Privileges or Immunities Clause was meant to be the heavy lifter of the Fourteenth Amendment, extending the Bill of Rights (and unenumerated rights) to apply against the states. The Due Process Clause meant to extend the mid-19th Century concept of due process, including substantive due process, to all those within the United States. The Equal Protection Clause was meant to have its emphasis primarily on protection— in addition to guaranteeing that whatever protection state and federal governments offered be applied equally, it also imposed a positive duty on them to protect all people within their borders from private violence and exploitation.

The Fifteenth Amendment did not deal in abolitionist terms of art, and it’s fairly straight-forward. It was meant to clarify that the protections the Constitution guaranteed to all citizens included the franchise. Congress recognized that Black people’s interests could only be meaningfully advanced if they were able to advocate for themselves, and the franchise is a critical component of that.

Finally, it’s worth noting that all of these amendments included powerful enforcement clauses. Congress gave itself the power to legislatively enforce all three, setting a high floor for enforcement of constitutional rights.

The Power of the Abolition Amendments

I’ve said in prior writings that the Abolition Amendments have the power to uphold the entire canon of progressive constitutional decisions, and that’s important. But I want to make it clear just how much more powerful they are than that. The Thirteenth Amendment’s power to redress badges and incidents of slavery could provide the basis for police and prison abolition, and for ending felon disenfranchisement. It supports the strong protection of reproductive rights on a much stronger basis than Roe ever did. It would also provide a basis for the enactment of property reparations, both for slavery and subsequent systems of subjugation.

A full reading of the Fourteenth Amendment could produce similarly powerful results. Rather than the current patchwork of legislative enactments, the Citizenship Clause should be read to extend birthright citizenship to the territories. The Privileges or Immunities Clause would extend broad protection against state interference with any general rights of citizenship—whether or not they were clearly established as such in 1868. The Due Process Clause, given its abolitionist reading, would extend significantly more substantive procedural rights than it does now. For instance, the good faith exception to the Fourth Amendment’s exclusionary rule would be untenable under an abolitionist reading. The Equal Protection Clause would see perhaps the largest change, as it would come to support race-conscious remedies so long as Black people remain disadvantaged in American society. Furthermore, it would establish the government’s duty to protect people, whether against domestic violence, rising sea levels, polluted drinking water, or a pandemic.

The Fifteenth Amendment, while less radical than its cousins, would still be substantially more powerful under an abolitionist reading. Critically, it would shape the analysis of any voting legislation to evaluate whether the policy materially disadvantages communities of color, and provide a basis for striking down those that do. Gerrymandering, polling place closures, voter ID requirements, and other restrictions on the right to vote would be subject to considerably greater scrutiny than they currently receive.

Congress gave itself broad powers under the Reconstruction Amendments; broad enough to support the creation of abolition democracy.

What Abolition Constitutionalism Can Accomplish

Simply stating a theory of abolition constitutionalism won’t be enough to achieve the transformations described above. We have to start by believing it. We’re currently in a position where constitutional law—as it is—represents a deeply harmful system, supporting a wide range of abuses against Black people, trans people, unhoused people, Jewish people, and all sorts of marginalized communities that make powerful, conservative white people uncomfortable. But that isn’t what constitutional law has to be. It can be a tool for liberation, if enough of us believe and make it one.

Originalism didn’t spring immediately from Robert Bork’s 1971 law review article into jurisprudence—the process took over a decade to begin in earnest, and the theory didn’t really rise to dominance until the Roberts Court. The originalists like to imagine that their theory represents the law as it truly is, and so long as they hold a majority on the Supreme Court, it will be. But we can adopt a better way of approaching constitutional law in preparation for the day when the originalists don’t hold a majority. The tools of abolition are already in the Constitution, if we choose to give them meaning and power.

I’m asking you, dear reader, to believe in those tools, and your ability to give them meaning. Many of you who will read this piece are, or soon will be, lawyers. There are times when the legal profession can feel tedious or disconnected from the major challenges facing our society. But we must remember that in this profession, we have the ability to use our words to change the world. We have to believe in the power within the Constitution to build a better approach to constitutional law. And we have to believe in ourselves, and our power to shape a more just and equitable society.

Brandon Hasbrouck is Associate Professor of Law at Washington and Lee University. His scholarship and advocacy centers movements and works in solidarity with them to advance transformative understandings of our Constitution.

Learn more about Professor Hasbrouck and follow him on Twitter @b_hasbrouck.

To Preserve Our Constitutional Order, We Need More Federal Judges Like Brandeis

The federal judiciary is in crisis. Now stocked with conservative jurists who openly disdain the courts’ limited constitutional role and actively dismiss the public they serve, this critical branch of our government presents an unacceptable risk to the stability of our democracy and economy. But there are solutions at hand.

The way to overcome this crisis is by quickly rebuilding the judiciary with a new generation of capable and civic-minded judges. President Joe Biden and Senate Democrats — with their expanded majority following the midterm elections — must take advantage of the opportunity to do just that.

With that in mind, concrete models might offer the president helpful guidance on how best to proceed. In light of the current challenges facing our country — including the gross political and economic disparities that threaten our social order — Biden and Senate Democrats should look to former U.S. Supreme Court Justice Louis Brandeis as an ideal.

Contemporary jurists could learn a lot from Brandeis who, over the course of his storied career, exhibited two essential traits for presiding over disputes in a pluralist society facing rapid economic and technological change.

The first was his appreciation for how the just application of the law benefited from ongoing advances in our understanding of the natural and social sciences. Brandeis most memorably gave form to this idea with the eponymous legal innovation, the “Brandeis brief,” he helped pioneer. Brandeis introduced this form of legal advocacy in conjunction with a 1908 Supreme Court case involving an industry challenge against an Oregon state law that set maximum work hours for women. The document largely dispensed with traditional legal arguments and instead marshaled empirical research documenting the harmful effects that excessive work hours have on women and society at large. Remarkably, the Court upheld the law, even though the majority was then, much as the Roberts Court is now, notoriously pro-business.

The second defining trait of Brandeis’s legal philosophy is the notion that the law ultimately serves as an expression of the democratic will of the people, and it is the duty of judges to see that it does so. As his writings and opinions make clear, Brandeis saw the law as a vital animating force behind our ongoing project to meet the new and emerging crises we face as a society, consistent with our ever-evolving shared conceptions of justice and the common good. Especially important is law’s unique role as an equalizing force in society, safeguarding both our democracy and economy by preventing individuals or companies from becoming too dominant in either.

As a Supreme Court justice, Brandeis used his dissent in the 1933 case Liggett v. Lee to provide one particularly clear delineation of his conception of the law as a tool that empowers the American people to shape their collective destinies. At issue in Liggett was a Florida law that sought to promote competition in grocery stores by imposing a graduated tax on chains that increased according to their number of outlets. In contrast to the Court’s majority, Brandeis would have upheld the law as a legitimate means of protecting this vital part of the state’s economy against potentially harmful concentration of market power among a few dominant corporate entities – a concern that certainly resonates today.

More to the point for Brandeis, though, the people of Florida themselves shared that concern and were moved enough to act upon it through their democratic institutions. As he notes in the conclusion to his dissent, “If the citizens of Florida share that belief [that systemic economic inequality contributed to various social problems at the time such as widespread unemployment], I know of nothing in the Federal Constitution which precludes the state from endeavoring to give it effect and prevent domination in intrastate commerce by subjecting corporate chains to discriminatory license fees. To that extent, the citizens of each state are still masters of their destiny.”

Such traits are absent among many federal judges these days, as my co-authors and I observed in a recent report on the Supreme Court’s troubling decision in West Virginia v. Environmental Protection Agency (EPA). In that case, the Court strayed well beyond its limited constitutional role to strike down an EPA rule to limit greenhouse gas emissions from fossil fuel-fired power plants. To get there, the majority ignored the relevant scientific and technological issues at stake — both with regard to the existential threat of climate change and the creative engineering solutions the agency devised to tackle the problem as cost-effectively as possibly.

The majority also disregarded the democratic pedigree of the rule, including the Clean Air Act through which it was authorized, as well as the painstaking process of public input and stakeholder collaboration that led to the rule itself. Indeed, the majority seemed entirely unmoved by the public’s decades-long effort to overcome the fossil fuel industry’s staunch opposition to finally achieve effective climate action.

The social conditions that shaped Brandeis’s approach to jurisprudence are much like ours today. Then, as now, economic dislocation was widespread, and disparities in political power and wealth were vast and growing. With rampant corruption and the persistent ineffectiveness of governing institutions on full display, the public’s faith in democracy was quickly eroding.

Overcoming these challenges today will require policy solutions that draw on both the situated knowledge of the public and the specialized expertise of scientists and other professionals. Federal judges must contribute to this effort by ensuring that our laws are built on a foundation comprising both elements.

James Goodwin, JD, MPP, is senior policy analyst at the Center for Progressive Reform

The Defense Production Act’s Secret Weapon to Fight Climate Change

During the COVID-19 pandemic, the Defense Production Act of 1950 (“DPA”) emerged as a significant source of presidential emergency power. Both the Trump and Biden administrations relied on the law to compel manufacturers to prioritize production of essentials like masks and ventilators, and to alleviate pandemic-related supply chain backlogs.

But the DPA can do more than just respond to a public health emergency. As a new report I co-authored for the Roosevelt Institute explains, a subsection of the DPA – Title III – can be a powerful tool to fight climate change. The Act includes expansive authority for the president to finance and advance green industrial policy projects “without regard to the limitations of existing law.” If deployed, this authority could complement the historic climate investments in the Inflation Reduction Act to overcome legal obstacles that would otherwise stall or erode our clean energy transition.

The DPA was originally enacted to give the Truman administration tools to mobilize the country for the Korean War. But the law was also meant to ease inflationary pressures from conflict abroad – Congress specifically saw one prong of the law (Title III) as a tool to “attack . . . various types of bottlenecks” that “act as effective limits on the supply of specific essential commodities.” And over time, Congress has steadily expanded the DPA, including adding a mandate to maximize the domestic supply of renewable energy.

Title III of the DPA authorizes the president to make investments in critical infrastructure and energy production. These financial authorities are each entitled to special exemptions under the DPA – specifically, they can be exercised “without regard to the limitations of existing law.”

Putting this together, the government has the legal authority to override a wide array of laws that get in the way of green energy projects financed under the DPA. There are at least four reasons why the DPA’s “without regard” clause means what it says. First, the plain meaning of the law is clear that DPA projects can override other laws. The Supreme Court has made clear that plain statutory language trumps everything else. Congress regularly emphasizes the primacy of a statutory power by stating that it applies “without regard to other law,” or “notwithstanding any other provision of law.” The Court has recognized that these sorts of statutory commands have typically been understood to “supersede all other laws” because a “clearer statement is difficult to imagine.” (Notably, the Biden administration has recently interpreted similar language in another statutory context to support the Secretary of Education’s authority to forgive federal student loan debt.)

Second, overriding other laws is consistent with the purpose and intent of the DPA. The DPA was, at its origin, meant to grant the president with extraordinary power to secure the country’s industrial stock through speedy action and accelerating supply. In addition to the DPA’s general preference for renewable energy, Title III loan and purchase authority subsections each include a statement of purpose to expedite production of critical materials, such as “reduc[ing] current or projected shortfalls of industrial resources, critical technology items, or materials essential for the national defense[.]” Toward that purpose, such transactions may be “made without regard to the limitations of existing law[.]”

Third, the DPA’s legislative history supports its authority to override other laws. Subsequent amendments to the DPA after its initial passage broadening Title III support its authority to override other laws. At the time of enactment, the “without regard” clause Title III subsection applied just to contract law. However, Congress subsequently removed the reference to contracts, implying that Title III projects can override other law in general. (In fact, the lone statutory exception from the DPA’s “without regard” clauses is the prohibition on spending more than Congress has appropriated.)

Moreover, legislative statements around the time the DPA was enacted evince Congress’s willingness to grant the statutory authority to override other laws. Months after Congress passed the DPA in 1950, it took up another Cold War defense bill that included similar “without regard” language. During floor debate, the Senate floor manager for that bill – Senator Estes Kefauver – said that the “without regard” clause “is the usual language employed when emergency power is given. The intent is that if some other statutes . . . which old line agencies have to deal with are applicable, the [administration] will not have to act under them.” This suggests that the DPA anticipates the government to likewise have the power to circumvent business-as-usual laws in order to secure the completion of strategically important projects, such as clean energy projects.

Finally, there is some limited legal precedent affirming the DPA’s authority to override other laws, including state law. In United States v. Latrobe Const. Co. (1957), the Eighth Circuit recognized that the DPA gave the government “authority to prescribe the conditions of [a] loan” that superseded other legal obligations (there, state law governing lien prioritization). Based on this and some additional modern authority in other areas, the DPA today can likely be used to overcome state and local legal impediments to green industrial policy.

How should the administration wield the DPA’s power to preempt other laws? We identify three general categories. First, preemption of federal procedural laws – such as procurement and environmental review – that unduly delay or restrict DPA projects and transactions. Second, preemption power can be invoked to ensure that expenditures under the DPA are used efficiently, giving the government the most bang for its buck by overriding certain corporate and securities laws that prioritize short-term returns over long-term productive capacity investments. And third, preemption power can be used to promote important public purposes, such as worker power, equity, and fair pay.

Thanks to the Inflation Reduction Act, the administration currently has more than $500 million in funds at its disposal to dispense through the DPA. With a divided Congress unlikely to enact any additional major climate legislation, the DPA is an important well of possible executive action to continue advancing a decarbonization agenda – and authority to make those funds go further by overriding other legal impediments.

Joel Dodge serves as chair of the American Constitution Society New York Lawyer Chapter. He is the Director of Public Interest Professional Development at Columbia Law School, and previously practiced constitutional law at the Center for Reproductive Rights. His analyses on politics and policy have been published at The American Prospect, the Washington Monthly, CNN, and other outlets. Follow him on Twitter @joeldodge07.

Oral Arguments in U.S. v. Texas and the Challenge to Prosecutorial Discretion in Immigration

On Tuesday, the Supreme Court heard oral arguments in United States v. Texas, which involves a challenge to a memorandum titled “Guidelines for the Enforcement of Civil Immigration Law” issued by the Secretary of Homeland Security on September 30, 2021, and commonly known as the “Mayorkas Memo.” As background, the Mayorkas Memo provides guidelines on prosecutorial discretion, which in the immigration space refers to the how and whether the agency or Department of Homeland Security (DHS) will take enforcement action against a person or group of people. When DHS chooses to not file a charging document against an undocumented mother who is a primary breadwinner for her family, it is choosing to exercise prosecutorial discretion favorably. This kind of discretion operates at every stage of immigration enforcement, including before and after an arrest, charging decision, removal proceedings, appeal and after a removal order has been entered. The Mayorkas Memo reaffirms the legal authority and principles of prosecutorial discretion and goes on to list three priorities for immigration enforcement: public safety, national security, and border security. The legal authority for prosecutorial discretion and duty for DHS to set priorities has been affirmed by Congress, courts, and the executive branch.

The state of Texas and Louisiana filed a lawsuit in the Southern District of Texas claiming that the Mayorkas Memo is contrary to law, arbitrary and capricious under the Administrative Procedure Act, and procedurally irregular. In June of this year, the district court agreed with the states and vacated the Mayorkas Memo. The Biden administration filed an appeal to the Fifth Circuit Court of Appeals and an application for a stay pending appeal, but the appellate court denied this application. In July, the Biden administration filed an application to the Supreme Court asking it to stay the order issued by the district court. The Supreme Court refused to do so but granted certiorari. The Court asked the parties to answer three questions:

1. Whether the state plaintiffs have Article III standing to challenge the Mayorkas Memo;
2. Whether the Mayorkas Memo is contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violates the Administrative Procedure Act; and
3. Whether 8 U.S.C. §1252(f)(1) prevents the district court to “hold unlawful and set aside” the Mayorkas Memo under 5 U.S.C. §706(2).

During oral arguments, the justices focused on all three of these questions with equal animation. This post highlights only a few of these questions and colloquies. On standing, Solicitor General (SG) Prelogar, representing the United States, argued that the states lack standing and under their theory would meet the standard with a “one dollar” injury. Or as Justice Kagan posed later in a question to Texas Solicitor General Stone, representing the states: “General, do you think that there's any immigration policy that you could not challenge under the way you view standing? … I mean, every immigration policy, you let in more people, you let in fewer people, is going to have some effect on a state's fiscal condition. Maybe they'll get less or more tax dollars. Maybe they'll have to spend less or more money. I mean, every single immigration policy. And then, you know, not to mention all the other policies in the world that if a state comes in and says, ‘I got a dollar's worth of costs that I can show you.’”

On remedies, SG Prelogar focused on the scope of 8 U.S.C. § 1252(f)(1) (a statute that limits the types of remedies lower courts can make) arguing that it does cover vacaturs or the kind of action taken by the district court. She cast the limits of this provision as a jurisdictional one. General Stone cast the same statute as more limited.

On the merits, the justices focused on the two detention statutes 8 U.S.C. § 1226(c) (pertaining to the mandatory detention of certain criminal noncitizens) and 8 U.S.C. § 1231(a) (pertaining to the detention and removal of those who have been ordered removed). One discussion point during the argument centered on the use of “shall” in those statutes—as in the "shall take into custody" language in § 1226(c). But Justice Barrett noted that this "shall" language was joined by language connoting discretion in § 1226(a), which states that a noncitizen "may be arrested and detained pending a decision" on the whether the noncitizen "is to be removed from the United States." The combination of "shall" and "may" makes sense under the government's reading of these subsections, which was explored by Justices Sotomayor and Barrett: the government "may" choose to start removal proceedings, but the statute does not require that the government do so. However, once the government initiates removal proceedings, it shall detain the noncitizens listed in § 1226(c). Indeed, General Stone, acknowledged that the government could decide to decline to start removal proceedings regarding any noncitizen or could terminate them at any time. At that point, General Stone recognized that the government no longer had a duty to detain that noncitizen.

When asked by Chief Justice Roberts for her views, SG Prelogar explained that, in light of this common-sense reading, it would be “wrong” to state that “shall means shall” and described the practical impossibility of enforcing it. She also later mentioned the number of “shalls” throughout the Immigration and Nationality Act and how transforming them into mandatory provisions would be unworkable.

On the role of prosecutorial discretion in immigration, Justice Sotomayor pointed to the 1999 Supreme Court case Reno v. ADC authored by the late Justice Scalia and conclusion that this discretion applies at every stage of immigration enforcement including whether to charge a person, place them in removal proceedings, or execute a removal order.

The oral arguments also included a discussion about the scope of the Mayorkas Memo. The Mayorkas Memo focuses on the apprehension and removal of noncitizens. And yet the focus of the litigation was on two detention statutes. SG Prelogar underscored this point when stating “And let me be really clear about how the Guidelines operate with respect to detention. They don’t govern the question of continued detention at all. They’re focused on apprehension and removal, and therefore when DHS officers have someone in custody and --- there are pending removal proceedings, the Guidelines leave it to the statute to dictate those kinds of detention decisions…”

The oral arguments were not only animated but also replete with ping pong dialogue between the justices and the advocates. And yet, some core concerns surfaced. First, there is a concern about the allocation of power. This lawsuit has now for the first time called the question: who controls the direction of prosecutorial discretion–states and courts or the executive branch? A second concern is practical: If the states are successful, does the government have the resources to identify, detain, and deport every noncitizen who falls under the mandatory detention statutes or to spend the resources that might be required when mistakes are made?

Importantly though and tied to the resource arguments raised during oral arguments, prosecutorial discretion is inevitable, so it does not stop functioning with litigation. For example, an arm of the Immigration and Customs Enforcement (ICE) known as the Office of Principal Legal Advisor (whose lawyers represent the government when a noncitizen is in removal proceedings) has acknowledged their ability to “consistent with longstanding practice—exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.”

So, what now? Even with the inevitability of prosecutorial discretion and a pending outcome in the Supreme Court, I remain concerned about the current landscape where there is no single guideline on prosecutorial discretion. What kind of message does this send to immigrants and their families? Without any formal guidance in effect to guide prosecutorial discretion in immigration enforcement, how different is our landscape from a previous administration that issued breathtaking priorities and warned that anyone in the country without authorization is at risk? What is the message to local ICE officers? Does it change the way local offices and officers behave so that people previously shielded from deportation while the Mayorkas Memo was in effect are now at greater risk? Finally, the presence and outcome in this case may also impact transparency. Will agencies engage in more rulemaking or instead be more resistant to publishing or announcing guidelines?

More than 20 years ago, I handled my first prosecutorial discretion case with a now abolished agency known as the Immigration and Naturalization Service. It was a pivotal point in my career and later a foundation for a body of scholarship and my first book on the historical role of prosecutorial discretion in immigration law. The challenge in this case represents a striking departure from the history, law and application of prosecutorial discretion in immigration for more than a century. There is nothing remarkable about the Mayorkas Memo and yet the courts have singled it out. If history, law and precedent prevail, so too will the elements of the Mayorkas Memo and the important role DHS plays in setting priorities and exercising discretion.

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Shoba Sivaprasad Wadhia is a Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants' Rights Clinic at Penn State Law - University Park.

It is Time to Reform Federal Supervised Release

This month's midterm elections revealed a country so evenly divided on crime and punishment that any successful reform will require bipartisan support. Fortunately, there is support at the federal level to address one important but overlooked problem in our criminal justice system – the “overly burdensome” and “punitive” use of community supervision, which has become a “driver of mass incarceration.” This fall, eight U.S. Senators (three Democrats and five Republicans) introduced the Safer Supervision Act of 2022, which aims to make federal supervised release more efficient, more effective, and less punitive. As law professors who study criminal punishment and previously served in federal public defender offices, we urge Congress to pass this important legislation.

“Supervised release” is the federal equivalent of parole. Judges impose supervised release on convicted defendants at sentencing, to follow their term of imprisonment. If a defendant violates a condition of supervised release, then the judge can “revoke” their supervision and send them back to prison for up to five years. Officially, the purpose of supervised release is to “afford adequate deterrence,” “protect the public,” and to “provide … correctional treatment,” not to inflict punishment. The supervision is meant to “fulfill[] rehabilitative ends, distinct from those served by incarceration.”

In reality, however, the federal supervised release system has become bloated and excessively punitive. Over 100,000 people are currently serving terms of supervised release, which is more than five times the number in the 1970s. Federal probation officers “report significant caseloads that can exceed over 100 offenders per officer,” leaving them little time to do anything other than police misconduct. In approximately one-third of cases, the government ultimately revokes the defendant’s supervised release, sending more than 15,000 people to prison annually. Supervised release has also become a “central front in the War on Drugs.” Drug offenders make up the largest proportion under federal supervision, and judges impose drug-treatment conditions on more than half of all supervisees, with as many as 3,000 revocations every year for drug-use.

Working at federal public defender offices, we witnessed the excesses of this system firsthand. We routinely saw clients sentenced to five, ten, or even twenty years of supervised release, based on just a few words of explanation from the judge, condemning them to spend vast spans of their lives subject to carceral control with hardly any discussion or consideration. We also defended multiple clients suffering from substance-use disorder who were sent to prison solely for violating their supervised release by relapsing during drug treatment. These experiences made clear to us that the federal supervision system is in dire need of reform.

The Safer Supervision Act would make three important changes to federal supervised release. First, the Act would require sentencing judges to conduct an “individualized assessment” of how much supervised release is appropriate when they sentence a defendant. Currently, judges impose supervised release in virtually every case where they sentence a defendant to over a year in prison, yet almost never explain why supervision is necessary. By encouraging judges to impose supervision only on individuals who actually pose a public-safety risk or need rehabilitation, the Act would help probation officers more effectively protect the community and provide transitional support.

Second, the Act would create a presumption of early termination of supervised release for individuals who have completed half of their term of supervision, so long as they demonstrate “good conduct and compliance” and do not jeopardize public safety. Although supervisees are currently entitled to seek early termination after serving a year of their term, judges only grant it in about 10% of cases. By rewarding good behavior with early termination, the Act would encourage reentry into society while focusing supervisory resources on those most in need of them. This change would promote both fairness and efficiency.

Finally, the Act would amend a widely condemned provision of federal law that requires judges to revoke supervised release and impose a prison sentence on supervisees who use drugs, possess drugs, or fail multiple drug tests. By criminalizing drug addiction, this mandatory-revocation provision promotes a destructive cycle of supervision, relapse, and incarceration. Instead, the Act would require judges to revoke supervision only if the defendant possesses drugs with intent to distribute or commits a felony possession (thus excluding misdemeanor possession). Although Congress could and should go further to end mandatory revocation entirely, this amendment would represent a small step toward ensuring that judges have discretion to decide whether prison is the appropriate response to a violation.

In addition to these three substantive changes, the Act would also direct the Comptroller General to conduct a much-needed study on federal community supervision and reentry, including a public report on the work of the federal Bureau of Prisons and Office of Probation and Pretrial Services. The federal judiciary and U.S. Sentencing Commission collect and publish extensive analyses of federal prison sentences every year, yet there is comparatively little empirical research on federal supervision. By measuring the scope and impact of the supervised-release system, the Act would help us identify how best to improve it.

If enacted, the Safer Supervision Act would be the first legislation in history reducing the size and severity of federal supervised release. The Act should appeal equally to conservatives wary of government waste and progressives concerned about overcriminalization. The reforms it proposes are incremental but important and worthy of serious consideration by members of Congress. We commend this bipartisan political effort to make federal community supervision more effective and more just.

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Aliza Hochman Bloom is a Faculty Fellow at New England Law|Boston.

Jacob Schuman is an Assistant Professor at Penn State Law School.

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