When the Supreme Court considers President Trump’s travel ban in October, the justices will have plenty of ways to avoid ruling on whether it exceeded his constitutional authority. They could, for example, dismiss the case as moot because the administration’s 90-day moratorium on issuing visas to people from the banned countries will have run its course.
But if the justices decide to rule on the constitutional questions posed by the case, they will have the opportunity to weigh in on the long-standing legal principle known as the “plenary power doctrine,” which gives the president and Congress extraordinary power to take action when it comes to immigration law. The court should seize this opportunity to once and for all rid our legal system of this outdated doctrine.
The plenary power doctrine dates to 1889, when the Supreme Court unanimously upheld a law that barred Chinese laborers from returning to the United States after leaving the country. The case, Chae Chan Ping v. United States, has come to stand for the proposition that the political branches enjoy extremely broad discretion over whom to admit to the United States and that courts should not scrutinize their choices too closely.Read more at: Genevieve Lakier Faculty: Adam Chilton
The front page of the New York Times this morning features a full-frontal assault on the low-income housing tax credit, the largest federal subsidy for the development of affordable housing. The charge against the credit is that the housing units it subsidizes are “disproportionately built in majority nonwhite communities,” which “means . . . that the federal government is essentially helping to maintain entrenched racial divides.” The first part of that claim is indisputably true: developments receiving low-income housing tax credits are, indeed, disproportionately located in communities with large nonwhite populations. But it does not therefore follow that the federal government, through the credit, is perpetuating residential segregation.Read more at: Daniel Hemel
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Constitutions put controls on the people who run countries - but how are they created and how well do they work?
In ordinary times constitutional debate often seems an abstract business without very much relevance to the way we live our lives. But political turmoil can operate like an X-ray, lighting up the bones around which the body politic is formed.
Drawing on recent political events, Edward Stourton explores the effectiveness of the constitutions of the United Kingdom, the USA and France and asks are they doing what they were meant to do?
Lord Peter Hennessy, Professor of Contemporary British History, Queen Mary University of London
Alison Young, Professor of Public Law, University of Oxford
Professor Tom Ginsburg, University of Chicago Law School
Sophie Boyron, Senior Lecturer, University of Birmingham Law School
David S Bell, Professor of French Government and Politics, University of Leeds
Presenter: Edward Stourton
Producer: Richard Fenton-Smith.
Maria Woltjen: ICE Effort to Use Kids to Turn in Their Parents Will Haunt Kids in the Future (Audio)
A federal effort to arrest people who pay smugglers to bring children to the U.S. is prompting deep concern among advocates for those minors. Immigration and Customs Enforcement said its initiative aims to thwart human trafficking, and that people who pay smugglers are conspirators in a criminal operation — even if they are parents wishing to reunite with their children. Advocates for undocumented minors said this effort could re-traumatize children who have fled danger in their native countries.Read more at: Maria Woltjen
This book offers a detailed accounting of how our laws have evolved across time in several areas of sexuality: sex and religion, sex and free speech, marriage, contraception, pornography, abortion, and homosexuality. Mr. Stone's research is comprehensive and detailed, his writing lively and fair-minded. The work is readable for lawyers and non-lawyers alike.
Mr. Stone synthesizes in one volume a story that is both fascinating and maddening. It's plain that American attitudes on sex have always been fraught. They've been at once priggish and libertine, at once puritanical and ribald. That the conversations continue -- and the litigation keeps coming -- is a tribute to the American spirit and the remarkable creativity and foresight of our Constitution. This book brings us all the way up to the controversies of our day (including gay marriage) and offers tantalizing glimpses of some of the legal battles that lie ahead.
"As we strive to fulfill the obligations of citizenship in the society our Framers envisioned," concludes Mr. Stone, "we must have the courage and the integrity to challenge the accepted wisdom, and we must fully embrace our moral, legal, and constitutional responsibility to respect the rights of others. This was, after all, what the founders of our nation counted on us to do."Read more at: Geoffrey R. Stone
Edward Albee died last fall. But the renowned playwright is making one last request from the great beyond.
Albee wants two of his friends to destroy any incomplete manuscripts he left behind.
But another expert on the subject, Lior J. Strahilevitz, a professor at the University of Chicago Law School, disagreed. “Part of what we value in a great artist is not just raw ability but the ability to curate, and it’s frequently the case that artists build great reputations by being selective about what they show to the world,” he said. “It’s problematic to force Albee to share these plays when he didn’t think they were good enough.”Read more at: Lior Jacob Strahilevitz
University of Chicago Law School JSD candidate Marcos Garcia Dominguez, also LLM ’13, has been selected to participate in the 2017-2018 University Trainee Program at the International Court of Justice in The Hague, a highly selective program designed to expose participants to international law and the work of the Court.
Participants in the 10-month program are assigned to an ICJ judge and typically write memoranda, draft various types of legal documents, conduct research, prepare case files, review evidence, attend public hearings, and sometimes assist judges with arbitrations, academic articles, and speeches. The Court, the principal judicial organ of the United Nations, accepts up to 15 participants each year. Garcia Dominguez will be clerking for Judge James Crawford.
“Marcos will be a great representative for the school, said Tom Ginsburg, Leo Spitz Professor of International Law. “He is a superb international lawyer already, who combines academic rigor and a terrific work ethic. I hope he will be the first of many that we send to the Court, highlighting our investment in international law and our terrific students.”
Added Adam Chilton, an assistant professor of law: “The International Court of Justices’ traineeship program is an extremely competitive and prestigious opportunity to work on the development of public international law. Marcos has studied international law as a student in Argentina and the United States, taught as an assistant professor at law schools in Argentina, and worked in private practice in both countries. From these experiences, Marcos has extensive academic and practical knowledge of public international law. Given these wide-ranging experiences, Marcos is the perfect candidate to work at the International Court of Justice.”
Garcia Dominguez, who received his JD cum laude from the University of Buenos Aires in 2006, has worked in the public law and international investment arbitration teams of Argentina's largest law firm. Upon receiving his LLM from the Law School, he joined the international arbitration group at Freshfields Bruckhaus Deringer US LLP in Washington, DC. His professional and research interests include international investment law, administrative law, and public international law, from an empirical and economic perspective.
Garcia Dominguez said he is grateful to the Law School and his supervisors for the support and the valuable opportunity to build his expertise in international law.
"I’m thrilled to know that I’ll actively participate in state-to-state international dispute resolution at the most important court of the international legal system. It will be exhilarating to see the action from the other side of the bench," Garcia Dominguez said. "I look forward to working on cases that deal with diverse areas of public international law, which are relevant not only for the countries involved but also for the international community as a whole. I am particularly eager to learn from Judge Crawford, who has been one of the most highly regarded experts in the field for the last several decades."Faculty: Tom Ginsburg Faculty: Adam Chilton garcia_dominguez.jpg
Three observers of American politics fear deepening division and polarization, and offer different proscriptions for the best way forward.
* * * * *
For Geoffrey Stone, a law professor at the University of Chicago, a fundamental challenge as we look to the future of democracy is political and ideological polarization. Perhaps more than ever before, he fretted, Americans tend to live in political and ideological bubbles, in part because social media has permitted citizens to construct their own feeds rather than relying on common, more or less responsible news sources, “like Walter Cronkite, Huntley-Brinkley, the New York Times, the Los Angeles Times, the Washington Post, and the Chicago Tribune.” Although these sources sometimes had biases in one direction or the other, he acknowledged, “they were almost always within the mainstream of responsible journalism.” There were deep disagreements on hugely consequential issues back then. But citizens could “at least speak with one another with a more or less common foundation.”
What we need going forward, Professor Stone argued, is “a new focus in our educational system on civics and on the responsibility of citizenship, leaders whoencourage citizens to see both sides of the issues that divide us, and technological mechanisms that automatically provide us with the opposite perspectives from those we tend to favor.”
In the long-run, he said, “these and other innovations are central to the future success of our democracy.”Faculty: Geoffrey R. Stone
Maria Woltjen on the Trump Administration Using Immigrant Children "To Unwittingly Turn in Their Own Parents"
Immigration advocates worry the crackdown will discourage sponsors from coming forward to claim their children at the border, leaving kids stuck in federal custody. Others fear it will make children more vulnerable to human traffickers.
“Punishing parents for providing assistance to their children…will not stop these children from fleeing violence,” Michelle Brané, director of migrant rights at the Women’s Refugee Commission, told reporters on Friday.
Then there are the psychological effects. The Trump administration “is essentially using these children to unwittingly turn in their own parents, and this is going to haunt these kids for a very long time, especially if their parents are deported, especially if their parents are jailed or sentenced,” said Maria Woltjen, executive director of the Young Center for Immigrant Children’s Rights at the University of Chicago.Read more at: Maria Woltjen
What's unclear is whether the justices can maintain their sense of comity through a term with tougher cases and a bruising confirmation battle.
"They got in the habit of deciding cases on narrow grounds so that there would be more agreement among themselves, and they seem to have toned down their rhetoric a bit, too," said David Strauss, a University of Chicago law professor. "You have to hope that will last, now that there are nine justices. But we can't be sure it will."Read more at: David A. Strauss
The announcement Tuesday that three officers have been charged with lying about that night raises questions about why it took so long to bring charges and underscores how tough it is to battle the code of silence long associated with the Chicago Police Department and other law enforcement agencies across the country.
"Even though the police brass had seen this video, knew what was on it, each of the reports of these officers was approved all the way up the chain of command," said Craig Futterman, a University of Chicago law professor who has studied the department and was part of the legal team that fought the city over its refusal to release the video.
The officers who knew there was a video, he said, knew they could lie because "the CPD has allowed that for far too long."Read more at: Craig B. Futterman
The wheels of justice are slowly turning in this case. We have come this far largely because of the video that a judge forced the city to release in 2015, more than a year after the shooting.
Craig Futterman, a University of Chicago Law School professor and police accountability advocate, told Sun-Times reporter Andy Grimm that the charges against the cops, like the murder charges against Van Dyke, are groundbreaking.
“If we want that culture (of silence) to end, and police officers want it to end, we have to know that there are consequences when officers lie,” Futterman said.Read more at: Craig B. Futterman
How does one justify a new regulation, even one that creates significant benefits, when the proposed regulation would likely harm job growth in a slowly recovering economy?
The Obama Administration faced this situation in 2011 when its proposal to strengthen the regulation of ozone in the air was met with the criticism that it would cut hundreds of thousands of jobs at a time of low economic growth. The Administration ultimately chose to delay the rule. Congress made an even blunter choice in 2011, passing the Regulation Moratorium and Jobs Preservation Act to bar significant regulatory activity until the unemployment rate fell below 7.7 percent.
These choices reflect an approach to regulation known as countercyclical regulation. Countercyclical regulation is a method to cut back regulation during times of economic downturn and high unemployment. The countercyclical approach is primarily in response to the argument that regulation has a negative impact on employment.
In a recent paper, Professors Jonathan Masur and Eric Posner of the University of Chicago Law School examine the arguments behind countercyclical regulation, the conditions under which it makes practical sense, and its viability as a regulatory framework.Read more at: Jonathan S. Masur Faculty: Eric A. Posner
Right now the Republican program to repeal and replace ObamaCare looks as though it will be effectively thwarted by dissent with the party’s own ranks.
Moderate Republicans are unhappy about dismantling the entire Affordable Care Act. Conservative Republicans are unhappy that too much of this ill-conceived statute will remain in place, given the Medicaid explosion, and the near collapse of the individual exchanges. Democrats will of course give no aid and comfort to the enemy, so it looks as though the current delay on the vote until early July may not be the last one.
What to do? First, develop a modest sense of humility. It is a lot harder to dismantle a bad system than to put it in place. The new beneficiaries treat their newfound largesse as an eternal entitlement. Hence efforts to return to the status quo ante of 2010 is treated like a cruel and heartless return to the dark ages.
The trick for success is to abandon the Republican playbook insofar as it tries to solve the healthcare problem with one large bill. Instead the Republicans should look to significant, but incremental, reforms to alter the system that will keep its coalition intact and bring some Democrats back to the table.Read more at: Richard A. Epstein
Yesterday the Supreme Court took action in two different cases about same-sex marriage. In one, Pavan v. Smith, the court summarily reversed an Arkansas Supreme Court decision about Arkansas’s birth-certificate regime, concluding that because “Arkansas law makes birth certificates about more than just genetics” and sometimes allows spouses who are not biological parents to be listed on the birth certificate, it must extend the same recognition to same-sex couples.
Justice Neil M. Gorsuch dissented (joined by Justices Clarence Thomas and Samuel A. Alito Jr.). Interestingly, Gorsuch did not quarrel with the correctness of Obergefell, but rather suggested that the case did not meet the standards for summary reversal, which he said is “usually reserved for cases ‘where the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.'” (As an aside, I take it that these criteria are supposed to be necessary, but not sufficient, conditions for summary reversal — the court certainly does not summarily reverse every case that is a clear error in the application of settled law. And as I’ve written extensively in “The Supreme Court’s Shadow Docket,” it is actually quite a parlor game to figure out what, in practice, the criteria for summary reversal really are.)Read more at: William Baude
The EC wasn’t persuaded by these arguments, ruling that Google needed to give “equal treatment to rival comparison shopping services and its own service.”
But those Google shopping boxes are ads, Picker told me. “I can't imagine what they're thinking,” he said. “Google is in the advertising business. That's how it makes its money. It has no obligation to put other people’s ads on its website.” He said he looked forward to reading the decision once it was released to better understand the EC’s reasoning.Read more at: Randal C. Picker
Craig Futterman, a University of Chicago Law School professor and police accountability advocate, said the charges are at least as groundbreaking as the murder charges filed against Officer Jason Van Dyke. The indictments are believed to be the first time officers have faced criminal charges for covering up for a a fellow cop accused of misconduct, part of a long-running “code of silence” within the CPD, Futterman said.
“That was historic, and this is historic as well,” Futterman said Tuesday. “This is at least as important as prosecuting the individual officer in the fatal shooting for murder.
“If we want that culture (of silence) to end, and police officers want it to end, we have to know that there are consequences when officers lie,” he said.Read more at: Craig B. Futterman
Among its other interesting end-of-term work Monday, the Supreme Court issued a per curiam cert. grant/stay in Trump v. IRAP, the travel ban case. As Steve Sachs discusses at Prawfsblawg, the court stayed the injunctions in part but left them in place “with respect to parties similarly situated” to the plaintiffs. The court also ordered “a briefing schedule that will permit the cases to be heard during the first session of October Term 2017,” noting that “(The Government has not requested that we expedite consideration of the merits to a greater extent.).”
Now here is where I get a little puzzled.
Constant readers will recall a disagreement that Marty Lederman and I had about whether the challenges to the executive order were going to become moot on June 14. On June 14, the president issued a memorandum clarifying (or amending, if necessary) “the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.” This was supposed to stop the mootness problem, and the court Monday also ordered the parties to brief “Whether the challenges to Section 2(c) became moot on June 14, 2017.”Read more at: William Baude
There will be bigger Supreme Court terms. But the one that just ended was valuable, said William Baude, a law professor at the University of Chicago.
“It has been a quiet term, and that is a good thing for the country,” he said. “Over all, this year the court was the least dramatic, and most functional, branch of government.”
“We will look back on this term,” he added, “as the calm before the storm.”Read more at: William Baude
The ruling, said Douglas Laycock, a professor at the University of Virginia Law School, means that Blaine Amendments are unconstitutional in at least some of their applications. “The question is how many applications, or which applications,” he said. “The case is not just about playgrounds.” He expects it will be easier for funds to go to religious institutions. In Colorado, the state court said the state’s Blaine Amendment barred religious schools from participating in a school choice program, and Laycock expects that it will be readdressed by the court.
Some of the Blaine Amendments are written in a way that could still prevent funds from going to religious institutions, said Daniel Hemel, a professor at University of Chicago Law School. For instance, he said, Connecticut has an amendment that says “no law shall ever be made, authorizing [the School Fund] to be diverted to any other use than the encouragement and support of public schools.” Even though it would essentially prevent religious institutions from receiving public funds, the Connecticut law doesn’t target churches, so it is likely fine, unlike some of the wording of other amendments.
But this Supreme Court ruling, Hemel said, could give some people a new argument for including religious institutions in subsidy programs and invalidate subsidy programs that were written before this case.Read more at: Daniel Hemel