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More than a few commentators have noted the U.S. Supreme Court’s effort in Trump v. Hawaii, the travel ban case, to put to rest any lingering doubt about the validity of one of the nation’s most notorious judicial precedents, Korematsu v. United States.
In that World War II-era case, the Court upheld the government-mandated internment of Japanese-American citizens. Though the Korematsu court purported to subject the internment order to the most intense judicial scrutiny, in reality it caved to governmental fearmongering and unsupported allegations that the citizens in question posed some kind of national security threat.
To say that Korematsu does not represent the Supreme Court’s finest moment is an understatement. But the circumstances of the case were unique, and the Court has had no occasion since to reconsider the ruling or its precedential value.
Until, that is, it agreed to decide the constitutionality of the Trump administration’s restrictions on entry into the United States by foreign nationals from predominantly Muslim nations. Challengers contended that, like the World War II internment order in Korematsu, the travel ban reflects a discriminatory policy judgment disguised as a national security measure. This is essentially what Justice Sonya Sotomayor argued in her dissenting opinion: “By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security,” she wrote, “the Court redeploys the same dangerous logic underlying Korematsu.”
In response, Chief Justice Roberts, writing for the majority in Trump v. Hawaii, distinguished the government action in each case. In Korematsu, he reasoned, the Court allowed the government to forcibly relocate U.S. citizens exclusively on the basis of race. Here, by contrast, the government, citing valid national security concerns, seeks to deny foreign nationals “the privilege of admission.”
The distinctions between the cases are not frivolous. The court has a long history of deference to national security decision making, and the travel ban policy was, technically, neutral on its face. At a higher level, of course, it seems difficult to deny the evidence of discriminatory animus underlying the ban. But the majority kept its view at ground level, likely because it did not want to deal with the implications of applying a stricter standard of review to the policy determinations of this particular White House.
And, importantly, the Chief Justice did more than just distinguish Korematsu. That decision, he stated, “was gravely wrong the day it was decided, has been overruled in the court of history and [quoting Justice Robert Jackson, one of the Korematsu dissenters]—to be clear—‘has no place in law under the Constitution.’”
Despite the Court’s reluctance to credit the animus underlying the travel ban, its statement about Korematsu is not hollow. To the contrary, it was not so long ago that associates of President Trump were seriously suggesting that the federal government could rely upon Korematsu to justify tracking and detaining Muslim-Americans and Muslim immigrants. The Court in Trump v. Hawaii put an end to that line of thinking, setting at least one definitive limit on this administration’s ability to act on its worst impulses.
President Trump has recently taken to Twitter to disparage Special Counsel Robert Mueller’s investigation of possible links between the Trump campaign and Russia during the 2016 election. Coupled with the Attorney General’s firing of former deputy director of the FBI Andrew McCabe days before his retirement, the President may be seeking to undermine Mueller’s credibility and to send him a message. But it also could be seen as a dry run for the next step: dismissal of Mueller himself. The difference is that the improper removal of Mueller before the completion of his investigation would be an abuse of power so profound that Congress should act immediately in response.
Congress could respond in two ways. The first would be to enact a new independent counsel statute, akin to the kind of legislation the U.S. Supreme Court determined was constitutional in the 1988 case of Morrison v. Olson. There, the Court confirmed that Congress has the power to protect an investigation from unwarranted executive branch interference by requiring good cause before the independent counsel can be removed, a decision that would then be subject to judicial review. There are details Congress would have to address, such as who ultimately would make the appointment decision, but the end goal would be to ensure that the Mueller investigation could continue to completion.
The second option would be the ultimate act of Congressional oversight in response to abusive presidential overreach: commencement of impeachment proceedings. Indeed, Republican Senator Lindsey Graham from South Carolina indicated as much when asked in an interview following the dismissal of McCabe, stating that the firing of Mueller without cause would “probably” be an “impeachable offense.”
A central tenet of our democracy, as the Supreme Court has repeatedly affirmed, is that no one – not even the President – is above the law. If the President’s firing of Mueller – a lawyer with extraordinary credentials, a sterling reputation, and whose appointment as special counsel was welcomed by both parties – were to go unchecked, we will have come dangerously close to realizing one of the framing generation’s great fears: rule by a government of men and not of laws.
The nation faced a similar crisis in the Watergate era. In 1973’s Saturday Night Massacre, President Nixon sought to rid himself of the special prosecutor who had been investigating his White House. Realizing this assault on the investigation jeopardized the core principle that no one, including the President and his closest advisors, is above the law, thousands of Americans expressed their outrage through telegrams, letters and phone calls to their representatives in Washington, D.C. Popular sentiment turned against the President, toward calls for impeachment; the moment marked the start of Nixon’s downfall.
The Nixon White House was under investigation for domestic crimes, including the burglary of the Democratic National Committee’s office and its ensuing cover-up. As bad as those crimes were, they did not pose a direct threat to the national security of the United States. Today, by contrast, Mueller and his team are investigating whether the Trump campaign coordinated with Russia in its efforts to undermine the U.S. electoral system, and whether Russia holds compromising information about the President, information that could be used to undermine our nation’s sovereign interests.
These questions demand answers. Any effort to end the legitimate investigation of these issues by firing Mueller would indicate President Trump believes he can act with impunity. The framers feared precisely this kind of chief executive. As Andrew Sullivan recently noted, the premise underlying their adoption of the impeachment option was straightforward: “If the president was to start acting like a king, he could be dispatched.”
Republicans in Congress would do well to remember that their predecessors recognized the framers’ foresight: forty years ago, they were heroes in the Nixon saga as they put nation above party. Today, those Republicans are justly remembered for their patriotism. We may soon be at such a critical moment again – perhaps more critical. Should it become necessary, will members of Congress stand up and re-affirm the principle that no one, including the president, is above the law? Nothing less than the security and future of the nation could be at stake.
The Constitution is at the heart of our state and individual rights and is the foundation of our very nation. When considering constitutional law, the Federal Constitution is the document that most frequently comes to mind. However, each individual state has its own state constitution that governs its residents simultaneously with the Federal Constitution. As Professor Marshfield indicates, “[s]tate constitutions are often lost in the shadow of the Federal Constitution.” Although this may accurately describe society’s general understanding of constitutional law, a state’s constitution is an equally important mechanism providing protections of constitutional rights to state residents. The progression of judicial rulings by the Supreme Court of the United States as a form of constitutional change may sound familiar. Comparably, state constitutions also experience constitutional change, as illustrated in Professor Marshfield’s forthcoming article Courts and Informal Constitutional Change in the States.
Professor Marshfield states that “constitutional change occurs when the supreme rules that bind political actors are modified.” He further references two differing methods of constitutional change: informal and formal amendment. The process of formal amendment occurs through explicit change to the text of the constitution, in and of itself. Conversely, informal amendment occurs through a change in a constitutional law that does not result in a change to the text itself. The judicial rulings of the Supreme Court of the United States, discussed above, are one example of informal amendment as a method of constitutional change. Another example of constitutional change through informal amendment is a “super-statute,” which is legislatively created and separate from the text of the Constitution, such as the Civil Rights Act of 1964. Constitutional change by way of formal or informal amendment occurs at the state level at a much more frequent ratio than at the Federal level.
Professor Marshfield conducted a study of informal and formal amendments to state constitutions through the creation of an original database of constitutional changes across all fifty states between the years 1970 and 2004. He began this study by reviewing opinions of the highest courts in all fifty states through a Westlaw search and by narrowing his search to cases revealing a “red flag,” indicating that the case is no longer “good law.” This type of search allowed him to review judicial opinions that have been overturned by the same state high court on a point of constitutional law. Professor Marshfield admits that this method of study may be inconclusive in revealing informal constitutional change because a state court may bring about significant constitutional change without actually overturning its own precedent. Nevertheless, this method captures countless instances of informal amendment by state high courts. He additionally reviewed the reports created by the Council of State Governments in order to identify formal amendments to state constitutions.
Marshfield’s study reveals that state constitutions have been formally amended approximately 2,887 times, compared to the Federal Constitution which has only been formally amended twenty-seven times. Further, the study identified 589 cases in which state courts have informally changed state constitutional law. Professor Marshfield’s study also analyzed the subject-matter of state judicial rulings by coding the cases overturning state constitutional law by the category of constitutional law, which illustrates that the leading subject-matter resulting in change is individual rights. Approximately half of the cases address criminal procedure issues including double jeopardy and state limitations on the right to a jury trial. Other cases address civil rights such as gender classifications and equal protection.
Despite the common misconception that state constitutional change occurs minimally through informal amendment because of the high frequency of change through formal amendment, reality indicates that state constitutions are frequently amended through judicial rulings. Professor Marshfield’s study raises several important questions regarding the correlation between constitutional rights and informal amendment by state courts and the interaction between formal and informal amendment. One potential theory is that courts are “comfortable” developing jurisprudence on constitutional rights because doing so seems to fit within the role of the judiciary. Moreover, it is evident that voters generally support judicial decisions regarding individual rights and prefer state court rulings on such issues rather than formal amendments. One may reasonably conclude, based on the evidence within Professor Marshfield’s study, that state courts “remain active in the evolution of constitutional rights.”
Contributing Editor: Raquel Muscioni
Be sure to read Professor Marshfield’s article Courts and Informal Constitutional Change in the States, which will appear in Volume 51, Issue 3 of the New England Law Review.
By: Natasha Varyani, Adjunct Professor of Law
The United States Supreme Court is scheduled to hear arguments in the case of South Dakota v. Wayfair, Inc., addressing the issue of when sales tax needs to be collected by online retailers engaged in eCommerce. In its 1992 decision in Quill v. North Dakota, the Court ruled that a retailer must have a “physical presence” in a state in order to be subject to that jurisdiction’s sales and use tax laws. The Court in Quill was revisiting its 1967 holding in National Bellas Hess v. Department of Revenue, in which it reviewed the authority of a state to impose its sales and tax laws on an out of state entity doing business in state.
Both Bellas Hess and Quill dealt with retailers that conducted sales through mail order, and their only presence in state was the catalogue of products offered. The Court in Quill cited “tremendous social, economic, commercial and legal innovations” that had occurred in the twenty-five years that had passed since its holding in Bellas Hess to justify overruling that former holding.
Twenty-six years have passed since Quill. In that time, the change in social, economic, and commercial life has been both dramatic and extremely rapid, so it only follows that the law should adapt in response. The holding in Quill articulated the “physical presence” standard, which demanded that, in order for a state to impose its sales and use tax laws on a retailer, that retailer was required to have a physical presence in state. Understanding the standard for imposition of sales tax, some retailers, notably Amazon.com, selected jurisdictions for their headquarters and warehouses intentionally to avoid having a physical presence and therefore being subject to sales and use tax laws in high tax jurisdictions. Though Amazon.com has a business plan that focuses less on state sales tax than it formerly did, online retailers like Wayfair (the plaintiff in this suit), Overstock.com, and NewEgg have benefitted from the physical presence standard set forth in Quill.
There can be no doubt that the legal profession is frequently depicted in popular culture. Take a look at the front page of any major newspaper, and you will invariably find stories depicting the latest political development, sensational trial, or other legal phenomena. But in recent decades, law-and-literature, as a discipline, has been described as “ailing” and in need of a “cure.” The law-and-literature movement has been criticized and the presence of humanities courses in law schools has declined.
In his forthcoming article, I. Bennett Capers, a professor of law at Brooklyn Law School, comments on the role of Alafair Burke’s novel The Ex within the law-and-literature movement. The Ex is a legal thriller in which Olivia Randall, one of New York City’s best defense attorneys, takes on the case of an old boyfriend who has been accused in a triple homicide. Through its use of the law as grounding for its entertainment value, Capers argues The Ex is not only a product of the law-and-literature movement, but also a statement that the movement may still be alive and thriving.
In fictitious literary and cinematic works, American judges are often portrayed as unethical, corrupt, eccentric, or simply brutal; however, the overwhelming majority of American judges are doing their difficult jobs fairly well. In his Article, Kooks, Crooks, Brutes or Rhadamanthine Opacities: Some Thoughts on the Depiction of Judges in Popular Fiction, U.S. District Judge Michael A. Ponsor takes issue with the cynical light cast on American judges and explains why such a view exists.
At the outset of his Article, Judge Ponsor readily admits that there are issues of incompetence and corruption within the judicial branch of the government, but explains that the judicial branch, as a whole, is the most respected and approved branch of government. Judge Ponsor identifies several works of impressive contemporary literature that highlight the negative aspects of the judiciary. Specifically, Judge Ponsor highlights the negative depictions of judges in novels, such as A Time to Kill and To Kill a Mockingbird, and explains that, while these depictions of judges may be entertaining, they are unflattering, incorrect, and problematic.
Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.”
That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.
It will likely come as no shock that most lawyers will inevitably face ethical challenges shortly after they begin to practice law. The types of ethical dilemmas faced by new attorneys, and the manner in which those ethical challenges are resolved, is largely dependent on the environment in which the new attorney has chosen to work. Associate Dean Catherine O’Grady’s recent legal scholarship has focused on the ethical decision-making of new attorneys working in private law firms. In her latest article, A Behavioral Approach to Lawyer Mistake and Apology, Associate Dean O’Grady argues that senior lawyers in law firms should examine ethical missteps made by lawyers through the lens of social psychology. By focusing on behavioral principles of psychology, Associate Dean O’Grady believes, senior lawyers in law firms will be in a better position to address ethical lapses after they occur and to prevent their recurrence by developing leadership models that allow them to pass their insights on to the firm’s new lawyers.
In Professor Wallace J. Mlyniec’s response to O’Grady’s article, titled Lawyering Practice: Uncovering Unconscious Influences Before Rather Than After Errors Occur, Professor Mlyniec argues that Associate Dean O’Grady’s after-the-fact approach to rectifying ethical lapses should be coupled with more robust training and contemporaneous reflection. Professor Mlyniec, drawing from his experience as a long-time clinical law professor, maintains that training that allows for reflection by new attorneys prior to beginning work on a client matter will make the attorney cognizant of problematic ethical and professional issues before they arise. Professor Mlyniec argues that a deterrence-oriented training model, although costly and time-consuming, will increase the probability that ethical issues are dealt with before they come to fruition. This model will allow firms to better prevent any potential damage arising from ethical and professional lapses of the firm’s new attorneys.