Faculty Blog: Supreme Court Effectively Upholds Fifth Circuit Judge’s Injunction of DAPA in U.S. v. Texas

By: Dina Francesca Haynes 

Last week, the Supreme Court issued its (non)-decision in Texas v. United States. At issue: whether one judge in Texas could enjoin a federal immigration program crafted by the Executive Branch, and whether the Executive Branch had exceeded its authority in so doing. I wrote about this case earlier this year, predicting a 4-4 split with the current court one justice down. Unfortunately, my prediction was borne out.

The Fifth Circuit—specifically one judge, Judge Andrew S. Hanen (who was recently accused of abuse of discretion when he imposed sanctions on federal government attorneys whose arguments he didn’t like)—had earlier decided that the State of Texas had established a substantial likelihood of success on the merits of their procedural and substantive claims required for an injunction. What is unusual in this case is that a district judge’s preliminary injunction applies nationwide (and not, as would ordinarily be the case, in the judge’s district only).

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Faculty Blog: The Psychology of Conflicts of Interest in Williams v. Pennsylvania

The U.S. Supreme Court’s recent decision in Williams v. Pennsylvania, handed down during the turmoil in the presidential campaign over the heated rhetoric on judicial impartiality, adds to the Supreme Court’s growing jurisprudence on the due process requirements for judicial disqualification. The issue in the case—whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—set the stage for a ruling that could have provided broad guidance on the due process parameters for judicial disqualification, especially in criminal cases. Yet the Court’s holding may end up having only limited impact. As others have already started to note, the test announced by the Court—“that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a crucial decision regarding the defendant’s case”—will be hard to prove and adds little additional guidance to what is already available under existing ethical standards for judicial recusal in most states. In addition, my guess is that there are few cases in which a prosecutor-turned-judge will be asked to rule on a case in which he or she was previously involved, so this test is likely to directly apply to only a narrow band of future situations.

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Faculty Blog: The Ninth Justice

At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama’s nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate’s constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments.

In that piece, Senator Hatch attacked President Obama’s judicial appointments for embracing “the sort of judicial activism Justice Scalia spent his career seeking to curtail.” Worse, in Senator Hatch’s view, when Democrats controlled the Senate they were complicit in this effort. Thus, he concludes, voters should decide what kind of Supreme Court they want through the 2016 Presidential election—which can happen only if the Senate delays confirmation proceedings on the President’s nominee, Judge Merrick Garland. He argues that considering a nominee today would be “irresponsible” and, he concludes, not “in the best interests of the Senate, the judiciary and the country.”

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Faculty Blog: Recent Supreme Court Term: The Supreme Court Openly Challenges Its Own Legacy

One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment.

The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”

As a tool of partisan accountability, the proposal shouldn’t work. Retention elections have been used at the state level for 75 years, and only in very rare instances—California in 1986, Iowa in 2010—have multiple justices on a single court lost retention elections in the wake of a politically controversial ruling. Citizen anger over controversial decisions generally does not translate into judges being kicked off the bench. Put another way, retention voters are assessing something more than mere case outcomes when determining whether to keep a judge in office.

This may seem surprising, given that politicians routinely try to rally their bases in reaction to Supreme Court decisions they disfavor. (Consider the left’s reaction to Citizens United or Heller, or the right’s reaction to Sibelius or Obergefell.) But ordinary voters don’t think like politicians. As I have documented here and here, to everyday citizens, a judge’s perceived commitment to a fair legal process is far more important than specific case outcomes. Voters will forgive a judge with whose rulings they disagree as long as those rulings appear to have been reached fairly and with respect for the court’s (often circumscribed) institutional role. Voters are less forgiving, however, when a judge appears to have intruded into the domain of the legislature, acted obnoxiously, or reached a decision that lacks a solid legal grounding.

Senator Cruz is a smart man, and he must know that voters assess judges differently than they do legislators or executives. So I doubt he is using retention merely as a conduit for channeling partisan anger. Quite the opposite: he appears to be counting on voters to assess the Justices on their commitment to procedural fairness and institutional humility, and to find that commitment lacking.

Unfortunately, in this regard the Supreme Court has not helped its own cause. The series of befuddling opinions in Obergefell v. Hodges nicely illustrates the problem. Justice Kennedy’s majority opinion on same-sex marriage was laden with soaring, poetic rhetoric about the profundity of marriage and the entitlement of all people to “equal dignity in the eyes of the law.” One is apt to agree with these sentiments as a matter of policy or even morality. But a constitutional exegesis demands something more. The Obergefell majority never cleanly and clearly explained why it was the province of the Supreme Court to accomplish what Congress and state legislatures might have (eventually) done themselves. Indeed, Obergefell was arguably far less grounded in the constitutional text than either of the equivalent efforts on same-sex marriage offered by the Iowa Supreme Court and Massachusetts Supreme Judicial Court years earlier. In doing so, the majority opened the door to criticisms that the Court had overstepped its institutional bounds.

The dissenting opinions subsequently pulled that door right off its hinges. The Chief Justice lamented, “The majority’s decision is an act of will, not legal judgment…. Just who do we think we are?” He went on: “Five lawyers have closed the debate and enacted their own view of marriage as a matter of constitutional law.” Justice Scalia went further, charging that the majority opinion “lack[ed] even a thin veneer of law” and ruling a “system of government that makes the People subordinate to a committee of nine unelected lawyers.” Justice Alito picked up the same theme, warning that the Constitution forbids “five unelected Justices from imposing their personal vision of liberty upon the American people.” Only Justice Thomas constrained his dissenting opinion to a legalist discussion about constitutional meaning.

As a debate over national policy or constitutional philosophy, the five Obergefell opinions make fascinating and important reading. As a vehicle for increasing, or even sustaining, the institutional legitimacy of the court, however, they are collectively a train wreck. Anyone who reads the majority opinion and suspects the court of moderately overstepping its institutional role will, upon reading the dissents, find a far more grievous critique. The Court, we are told, undermined the core of American democracy through unelected lawyers and (in Justice Scalia’s inimitable words) “judicial Putsch.” Even if one agrees with the outcome of the case (and I count myself among them), the internecine squabbling over institutional overreach is deeply unsettling. The majority could have worked harder to formulate an opinion that sounded less like public policy, and the dissenters could have made their points with far more responsible rhetorical flourish. No wonder Senator Cruz felt that the public might be ready for retention elections.

Thanks to the court’s self-flagellation, the Cruz proposal cannot be treated as mere pandering to his right-leaning base. Public respect for the judiciary is near a 15-year low, and allegations by the Justices that their own colleagues do not respect the rule of law cannot help. Those who want to see the Court regain its lost institutional legitimacy can only hope that the Justices recognize the damage that comes from their public dysfunction, and collectively work to repair it.

Faculty Blog: Recent Supreme Court Term: Zivotofsky v. Kerry

In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches.

Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.

Enter Congress, which in 2002 passed Section 214 of the Foreign Relations Authorization Act titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” As this title suggests, Section 214 directed the Secretary of State to register the place of birth as Israel on registration of birth documents, certification of nationality, and passports for any U.S. citizen born in Jerusalem upon the request of the citizen or the citizen’s legal guardian. Section 214 was clearly intended to countermand the directives of the executive with respect to citizens born in Jerusalem.

The Court framed the clear conflict between the President and Congress in broad terms: 1. Whether the President has the exclusive power to grant formal recognition to a foreign sovereign? 2. If he has that power, can Congress command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition? In an opinion by Justice Kennedy the Court answered yes to the first question and no to the second.

The Court began its analysis by referring to Justice Jackson’s taxonomy in Youngstown Sheet and Tube Co. v. Sawyer, noting that this is a case where the President’s power is at its “lowest ebb” because he is acting in direct contravention of Congress, and thus he can rely solely on the powers the Constitution grants to him alone. However, the Constitution is silent as to whether or which branch has exclusive authority to recognize another sovereign. In fact, the Constitution does not mention the term “recognition” at all.

Unable to rely on the text, Justice Kennedy opts for a structural and, ultimately, a pragmatic approach to answer these questions. He notes that the Reception Clause in Article II directs the President to receive ambassadors and other public ministers. According to Justice Kennedy, that sounds a lot like recognition authority. Justice Kennedy goes on to list a number of other foreign affairs powers the Constitution vests in the President, such as making treaties and appointing ambassadors and other public ministers. Even though these treaty-making and appointments powers require senatorial consent, it is enough for Justice Kennedy that each is dependent on Presidential power. It is the President who must initiate the process. From this arguably thin reed, Justice Kennedy concludes that the President has the power to grant formal recognition to a foreign sovereign.

Justice Kennedy’s pragmatism is in full view as he goes on to address the second question, whether Congress can command the President and his Secretary of State to contradict his earlier recognition. Here the Court answers no; the President’s power is exclusive. This, according to the Court, is for the simple and obvious reason that the Nation must speak with one voice on the matter of recognizing a foreign sovereign. If the President is to be effective in negotiations over a formal recognition determination, it must be evident that he speaks for the Nation.

The conservative wing of the Court dissented in Zivotofsky. In the most scathing criticism, Justice Scalia questions whether the President’s recognition power is exclusive, but more to the point, he contends Section 214 has nothing to do with recognition of foreign sovereigns. Section 214, Justice Scalia argues, performs the much more prosaic function of allowing citizens some say in what their Government says about another country’s boarders in citizenship documents. Because citizenship documents are matters within Congress’s control, Congress has the authority to direct what those documents say.

It remains to be seen if this case will have longer-term impacts beyond its rather narrow facts. However, because the Court does not wade into this area very often, it is likely that courts, advocates, and commentators will turn to this case in support of various arguments over presidential and congressional authority. Some particular points of note are that that in this case the President argued for a much broader grant of authority. Citing to the 1936 case United States v. Curtiss-Wright, the Secretary of State contended that the President has exclusive authority to conduct diplomatic relations along with the “bulk of foreign-affairs powers.” The Court declined to read Curtiss-Wright so broadly, suggesting that too oft-cited language from that case that the President is the “sole organ of the federal government in the field of international affairs” is dicta.

Also interesting is that a majority of the Court did find express and exclusive executive power absent any clear language in the Constitution. The means by which the Court found this power in the constitutional structure and the Court’s pragmatic view of how a government must function is likely to provide a road-map for future foreign affairs and national security cases where the demarcation between the President’s and Congress’s power is vague.

Finally, in reaching its decision the Court noted that the President needs exclusive recognition power in order to be effective. If the Court believes that effectiveness is the touchstone of exclusive executive authority granted by the Constitution, than Zivotofsky is truly a blockbuster case and one that the executive will cite for generations to come in order to maximize its authority. I suspect that the Court will be forced to clarify and perhaps narrow this rationale in some future case, but time will tell.

Contributor Profile: The Honorable William G. Young

The Honorable Judge William G. Young, speaker at New England Law Review’s Fall 2013 Symposium, is a United States Federal Judge for the District of Massachusetts. A native of Huntington, New York, Judge Young received his A.B., magna cum laude, from Harvard University in 1962, served our nation as a United States Army Captain from 1962 to 1964, and earned his LL.B. from Harvard Law School in 1967.

Following his graduation, Judge Young served as a law clerk to the Honorable Raymond S. Wilkins of the Massachusetts Supreme Judicial Court (1967–1968), Special Assistant to the Massachusetts Attorney General (1970–1972), and Chief Counsel to Governor Francis W. Sargent (1972–1974). After serving on the Massachusetts Superior Court for eight years, President Ronald Reagan nominated Judge Young to a seat on the United States District Court for the District of Massachusetts in March 1985. Judge Young went on to serve as Chief Judge from 1999 to 2005.

During his tenure, Judge Young has presided over such highly publicized criminal trials as the “Big Dan’s” rape case, the “Boston Strangler” case, and the “Shoe Bomber” case, in which he told the defendant, “You are not an enemy combatant, you are a terrorist. . . . You are not a soldier in any army, you are a terrorist. To call you a soldier gives you far too much stature.”

Throughout his career, Judge Young has made important contributions to the legal community. Commonly referred to as the “The Education Judge,” Judge Young has lectured at such schools as Boston College Law School, Boston University Law School, Harvard Law School, New England Law | Boston, University of South Carolina, and Western New England College School of Law. Judge Young has also contributed to the Massachusetts Practice Series, several editions of Massachusetts Evidentiary Standards, and has written articles for Tulane Law Review, Penn State Law Review, The Federal Lawyer, Massachusetts Law Review, and Suffolk University Law Review.

This impressive list will grow yet again when the Honorable Judge William G. Young’s keynote address, Measuring Holmes’ “Regiments,” as well as Bench Presence 2014: An Updated Look at Federal District Court Productivity by Jordan M. Singer and the Honorable William G. Young are featured in Book Three of the New England Law Review, Volume 48. That issue is due to be posted here later this month.

 

Contributing Editor: Kevin Mortimer