Who exactly do originalists think have unwittingly sworn to be an originalist?

I’ll admit that I’ve never heard of Oath Theory until this week. But my understanding of the argument is that the theory takes at least two premises. The first premise is that Article VI of the Constitution requires political and judicial officers of the United States to “bound by oath or affirmation, to support this Constitution.” The second premise is that, due to a number of specific facts about the United States political and legal development, originalism is our law. (To be clear, only 50% of this writers for this blog believes the second premise, but my understanding is that it is a key feature of the argument.) With these premises taken together, the argument goes that anyone who takes the oath is pledging to uphold an original understanding of the constitution.

This makes me curious: for originalists that believe oath theory, who exactly do they think has taken an oath to be an originalist? And, as a natural follow up, how many of those people have been breaking it? Here are some possibilities:

1. Most obviously, a huge number of government officials. To be exact, Article VI requires that the oath be taken by: “Senators and Representatives … members of the several state legislatures … [and] all executive and judicial officers” of the United States and of the several states. Now, my understanding is that only those officials that took this oath at a time when “originalism was our law” would have been pledging to uphold originalism. I’m not sure exactly when originalism became our law, but my guess is that this still comes as quite a shock to thousands of non-originalist officials and judges.

2. Potentially all naturalized citizens.[1] When citizens naturalize, they also take an oath to support the constitution of the United States. Admittedly, this oath’s requirement is slightly different in a few ways than the Article VI oaths that might be relevant to originalists. For instance, the requirement is not part of the constitution—instead it was passed by the first Congress in the naturalization act of 1790—and the language has evolved slightly over time. The oath also requires new citizens to support “the constitution” instead of the “this constitution.” So it’s possible that these differences are material to people that believe in oath theory. But it’s also possible that an implication of the theory is that the ~700,000 people that naturalized last year were pledging to be originalists. Of course, the constitution doesn’t put a lot of obligations on private people, so regardless of whether it was a secret originalist pledge, most naturalized citizens probably aren’t breaking it. But many naturalized citizens have fought for causes like marriage equality or mandatory school desegregation that run afoul of original understandings of the constitution.

3. As far as I know, all state bars require lawyers to take a pledge to support the constitution.[2] Does this mean that every one of the currently 1.4 million lawyers in the Untied States have pledged to be an originalist? And are all lawyers that argue positions against originalist understandings of the constitution eligible for disbarment?

4. What about government officials in other countries? A quick google search reveals that there are a large number of countries around the word that also require oaths to defend their constitution. The exact status of originalism in other countries’ constitutional traditions is complicated, but originalism isn’t exclusively an American idea (you can check out Yvonne Tew’s article on the topic for the receipts). If originalism is “the law” in those countries (which it may very well not be), would the officials all be unwittingly taking pledges to be originalists too?

Now, this particular originalist argument might be new to me, but arguing with originalists is not. So I’m sure I’m going to be told that there have been forty tweets, twelve blog posts, eight academic conferences, six law review articles, and three federalist papers that already considered and answered these exact questions.

But, for my tastes, this argument wasn’t persuasive when it was just being used to claim that politicians and judges had been pledging to be originalists without realizing it. Once it’s expanded to all the other people that have pledged to support the constitution, the implications of this argument are simply too big for it to get off the ground.

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[1] Like with officials, this would presumably only be people that naturalized sometime after originalism became out law.

[2] This would also presumably only be true under the same circumstances as naturalized citizens (e.g. if its fine for the oath to not be constitutionally required, have language that has evolved or varies by state, and not say “this constitution”).

The Role of Oath Theory

The internet has been abuzz lately with academic discussion of the constitutional oath and the possibility that it implies originalism. See this recent post by Chris Green, much-discussed on Twitter. This article by Bernick & Green lays out parts of the argument in more detail, and this non-originalist argument by Richard Re is a foundational piece of modern oath theory. There seems to be a lot of confusion about what the purpose of the argument is or what it implies. A few general thoughts.

1: The oath to uphold the Constitution is a longstanding, widely-observed practice, so its purpose and meaning ought to be of interest to constitutional scholars. Maybe it turns out to be an empty ritual, maybe it turns out to be a substantive promise of some sort, or something in between. But these are important and legitimate questions to ask.

2: The oath does not by itself make originalism true or justified. The oath argument for originalism depends on other premises, such as an underlying theory of law. But if originalism is our law, and the oath requires officials to uphold to our law, then the oath requires officials to uphold originalism.

This doesn’t make the oath argument empty or circular. It serves an important role as a matter of legal theory. For instance, it helps to explain how inert claims about positive law might have some normative power. Maybe this role will seem obvious or empty to those who don’t care about legal theory, who just assume that saying something is the law means that you should probably do it, but I assure you this is a hard question in legal theory.

[2.5: To be sure, there are also lots of arguments on the other side — for instance that promises to do X should never be able to generate normative obligations to do X that did not exist before, that the constitutional oath in fact has a much thinner content than originalist oath theorists argue, etc.]

3: What seems much touchier, and much more complicated, is what follows as a matter of political morality or rhetoric. Talking about the constitutional oath is touchy, because saying that the oath requires X raises the question of what happens if officials don’t do X. Should they be impeached? Called nasty names? Indeed, these possibilities may make it seem safer not to dwell on our social practice of oath taking, or to settle on it being an empty ritual after all.

Still. If it is true that the oath is a non-empty promise, then we ought to figure out what it means. But I don’t think we should rush to the conclusion that everybody who disagrees about its meaning should be impeached, or called nasty names, etc. I don’t have a complete theory of impeachment or of political morality, but surely there is room to say “the promises you have taken should be best understood to require you to do X” without saying “if you don’t agree with me and do X, you are bad and the following harsh things should happen to you.”

The irony is that the oath is apparently so salient as a matter of political culture that it is hard to talk about without people assuming that this whole apparatus — of impeachment, treason, etc. — come with it. But surely that cannot render it immune to intellectual study. It just means that we should do so very very carefully.

Originalism and "Dual-Track Incorporation"

There’s lots to say about Monday’s decision in Ramos v. Louisiana, which said that the Sixth Amendment requires unanimous jury verdicts, that the Fourteenth Amendment requires states to obey exactly the same Sixth Amendment standards as the federal government, and that any precedent to the contrary either didn’t exist or was overruled. But for now I have just one thought on that middle premise — that incorporated rights must mean the same thing against the states as against the federal government.

Justice Gorsuch’s opinion quickly rejects the possibility of so-called “dual-track incorporation,” holding that the same rights apply against federal and state governments:

There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally. This Court has long explained that the Sixth Amendment right to a jury trial is “fundamental to the American scheme of justice” and incorporated against the States under the Fourteenth Amendment. This Court has long explained, too, that incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government. [Citing Malloy v. Hogan.] So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.

This is generally consistent with governing precedent, and I have a lot of sympathy for this view, but I fear that something important is at risk of getting lost here.

The kind of two-track incorporation that Justice Gorsuch rejects is the “the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’” I think he rejects this notion for good reason, and it’s easy to see why an originalist would be suspicious that this was just a rear-guard action to nullify the incorporation of the bill of rights.

But the fact that this kind of dual-track incorporation is wrong does not mean that all kinds of dual-track incorporation are wrong. In particular, there are at least two possibilities that originalists ought to seriously consider that would result in incorporated rights under the Fourteenth Amendment having a different scope from the enumerated rights against the federal government.

First, it’s possible that incorporation is an indirect consequence of the Fourteenth Amendment rather than a direct consequence. Under several major theories of the Due Process and Privileges or Immunities Clauses, the Amendment protects the Bill of Rights not because it was a direct cross-reference to the Bill of Rights but because it protects rights with a certain property — rights understood to be fundamental in 1867/8, or at some other time, etc. On these theories of incorporation, the fundamental rights or privileges and immunities protected by the Fourteenth Amendment might have some daylight from the positive rights constitutional rights codified in 1791.

This brings us to the second issue, which is historical rather than theoretical. The public understanding of various constitutional rights was different in 1867/8 than it was in 1791. For instance, it’s debatable to what extent the right to keep and bear arms was understood as a right of self-defense at the Founding, but pretty clear that it was so understood during Reconstruction. Understandings of speech and due process had changed too. A lot changed.

It’s therefore quite plausible for an originalist to apply a dual-track approach, using the 1791 understanding for the federal government, and the 1867/8 understanding for the state governments. Indeed, that might even be the most intuitive approach for an originalist, like Justice Gorsuch. Now this dual-track approach is not inevitable. For instance, it’s also plausible that the Framers of the 14th Amendment incorrectly believed that their understanding of the Bill of Rights was the same as that at the Founding, and that their commitment to the same-ness principle is controlling even if it leads to 1791 controlling over 1867/8. Or maybe the Fourteenth Amendment implicitly amended the Bill of Rights and re-indexed all of them to 1867/8 for both governments. But the originalist dual-track approach is plausible, and even intuitive. The rejection of a “watered-down subjective” dual-track approach doesn’t tell us whether to reject an originalist dual-track approach.

I don’t think this matters for Ramos. From my skim of the sources, it doesn’t look like the understanding of unanimity in 1867/8 was much different than in 1791. So even if we adopt an originalist dual-track approach, the two tracks would run to the same place here. But there are plenty of cases where it will matter, and as we spend more time recovering the original meaning of the Bill of Rights and the Fourteenth Amendment, we need to figure out whether they really should be on identical tracks.

Contradictory defenses of qualified immunity

There have been a couple of articles posted recently defending the doctrine of qualified immunity against criticisms such as mine in Is Qualified Immunity Unlawful?

One, from Aaron Nielson and Chris Walker, Qualified Immunity and Federalism, argues that states have developed extensive reliance on the current doctrine, which counsels in favor of keeping it for stare decisis purposes. (See this earlier piece from Nielson and Walker, also emphasizing stare decisis.)

The other, from Lawrence Rosenthal, Defending Qualified Immunity, argues that Congress delegated authority to the judiciary to create common-law defenses in civil rights cases. (See this earlier piece from Levin and Wells, arguing that Section 1983 is a “common law statute”).

In due course I may well have more extended responses to these articles, but for now I just wanted to note that there is a great tension between these two lines of defense. The stare decisis theory argues that the courts should simply stop messing with the doctrine because it’s Congress’s job, not the judiciary’s, to worry about whether the doctrine is lawful or sensible. The common-law theory argues that it’s a special responsibility of the judiciary’s to decide what the doctrine ought to be, and if anything would argue against diminished stare decisis.

I’m not fully convinced by either of these theories, but I hope anybody convinced by one will give some serious attention to the other, contradictory, one.

Maintaining intellectual culture under physical isolation

Like every other law school in the country, the University of Chicago has transitioned to all-remote teaching for the Spring Quarter. But Chicago’s distinct intellectual culture depends on a lot of things that happen outside the classroom, and that kind of constant intellectual ferment is much harder to maintain when we are physically isolated.

So Adam and I decided to experiment this week with a Zoom “lunch talk” modeled after the many in-person talks with free food that our law school hosts in normal times. We talked about a couple of events and ideas in the news, took questions from students, and had a lot of friendly disagreement and debate. It went remarkably well, and felt remarkably like a “normal” law school event.

I was especially impressed with our students. Despite a complete lack of free food, almost a hundred students showed up, asked very sharp questions, and have already started sending along topics for next week.

We’ve decided to try to keep it up all quarter.

Grades are a Product, Not a Punishment

The spread of COVID-19 has upended nearly all aspects of life in America, and legal education has not been spared. In fact, 100 percent of law schools have moved to online instruction for the reminder of the academic year. This change to normal modes of instruction has sparked a subsequent debate about whether law schools should also change their grading to pass-fail for the semester.

Some schools have already made the change. In a public memo on March 16th, Cornell Law School announced that it will move to a pass-fail system. Several other law schools—including Berkeley, Harvard, Michigan, and Stanford—have also announced some form of changes to their grading policies for the semester. And there has been at least one call, from Brian Frye, to go even further and eliminate grades permanently.  

It’s understandable that law schools are considering (at least temporary) changes to their grading policies. After all, the disruption that students and faculty are currently facing is unprecedented. Students are facing a complete upheaval to their normal study patterns at the same time that they, and their families, are experiencing stress over their health, safety, and finances. Similarly, faculty are facing a move to online instruction while juggling new obligations like providing full-time childcare. Moreover, these burdens are not equally distributed. Moving to pass-fail assessment is thus one way to help alleviate anxiety, ensure fairness, and free up time for students and faculty to focus on other pressing concerns.

But it’s important to remember why we grade students. At the most basic level, grades are a product we offer our students. This product has value to them for two reasons: they create incentives to learn and they provide assessments that can be used by employers, admissions committees, or other decisionmakers. Both of these things continue to be valuable, even during these chaotic times.   

First, it is important to ensure students still have incentives to learn, especially when there are more things than ever competing for their attention. And, even under the best of circumstances, it would be difficult to pay attention to lectures that are delivered via zoom. It would be understandable for anyone to check out when staring at hours of online lectures every day. Grades provide some accountability that will help students find a way to focus.

Second, it’s important we provide grades so employers and other decisionmakers can assess students. If we do not provide grades, it does not mean that people will stop screening students. They will just be screening students using different information. For instance, law reviews will still have to decide which 1Ls are elected as editors, they’ll just be deciding based entirely on first semester grades. Law schools that elect to not grade this semester are thus depriving students of the opportunity to improve their standing.

And students should want the opportunity now, more than ever, to be able to provide reliable signals of their quality. The reason is simple: a recession is the legal market is now all but inevitable. Legal hiring is thus likely to be down in the fall, and failing to grade students will just make it more difficult for those students to get jobs. Law schools that are deciding not to grade their students are not saving their students stress; they are just moving that stress to next fall, and beyond, when the employment market will be tight. Moreover, not all schools are making the decision to move to pass-fail. Schools that make the move while their peer schools still offer grades are essentially ensuring that their students will have difficulty competing for a dwindling pool of good jobs.

To be clear, neither of these considerations—the incentives to learn or the need for reliable assessments—are themselves sufficiently important to make it obvious that we should not switch to pass-fail grading. Instead, they are considerations that should weigh on the other side of the ledger.  

If we can no longer offer a reliable product, I’ll be the first to agree we should stop grading. And it might be the case that that the product will be unreliable this semester because grades will be too noisy, too biased (e.g. the burdens are borne too unequally), or impose too high of costs on students. All of these pressures on the reliability of grades may become sufficiently strong that grades become more noise than signal. At that point, there will be no choice but to switch to pass-fail.

But making that switch will have real costs to students’ learning and employment outcomes. So I hope that students understand that law schools that are continuing to grade them are not doing it as a punishment. Or that their schools are unaware that they are going through an extremely stressful and scary time. Law schools are continuing to grade students because they have paid a lot of money for a valuable product, and we shouldn’t take it away from them lightly.

Covid-19, Civil Liberties, and the Constitution

Cities, states, and countries around the world are taking dramatic steps to try and halt the spread of covid-19. Although leading public health experts appear to be in near consensus that severe restrictions are necessary, many of these restrictions do limit civil liberties. And some of the options that have been implemented around the world may violate those countries’ constitutions.

Kevin Cope, Charles Crabtree, Mila Versteeg, and I are researching how people in different countries feel about these limits on civil liberties. We’ll have some academic paper(s) out in the future, but the first essay reporting results from the project was just published by the Atlantic.

The essay reports results from a survey we administered to a nationally representative sample of 3,000 Americans. The survey asked respondents whether they supported implementing various policies to fight covid-19. As the above figure shows, the proposals enjoyed majority support. This is true even for more extreme proposals like restricting free speech, expropriating businesses, and conscripting workers. This was also true even for a random subset of respondents where we explicitly explained the policies may violate the constitution. And, although there are some differences between Democrats and Republicans, the differences were pretty small given the levels of polarization in America.

If you’re interested, you can read the whole piece here.

Adjudication Outside Article III, in many formats

Earlier this month I published an article in the Harvard Law Review called Adjudication Outside Article III. Some of my articles come together pretty quickly, but this one took me almost five years from start to finish, so it’s a shame that nobody will ever read it.

In any event, here is the abstract:

Article III requires federal judges who exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III — state courts, most obviously, but also territorial courts, administrative adjudication of public rights, and military tribunals. The question is why.

This Article attempts to provide an answer. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with, and what is it trying to do with that power?

With this framework in view, the structure and scope of non–Article III adjudication becomes clearer. Some courts exercise the judicial power of some other government. This is why territorial courts and state courts are constitutional. Some bodies exercise executive power, subject to the constraints reflected by the Due Process Clause. This is why administrative adjudication of public rights and military trials are constitutional. Some exercise no governmental power and can proceed only as an adjunct to another entity or on the basis of consent. This is the only basis on which magistrate judges and bankruptcy judges can proceed and may render some of their current behavior unconstitutional.

You can read the whole thing here.

And if you don’t want to read a long law review article, I tried to break down the five core contributions of the article into five posts at the Volokh Conspiracy this week:

• Part One, There Are No Exceptions to Article III

• Part Two, The Constitutionality of Territorial Courts

• Part Three, The Executive Power to Adjudicate

• Part Four, Some Implications for Executive Adjudication

• Part Five, Bankruptcy and Magistrate Judges?

And if you don’t want to read at all, I also discussed the article in a half-hour podcast with Adam White, who runs the C. Boyden Grey Center for the Administrative State, at Scalia/George Mason. If you want the movie rights, let me know. They’re cheap.

Buckets and Scales

Adam’s post about rankings raises the general question of when it’s better to rank things using a granular scale and when it’s better to put them into bigger buckets. Granular scales give the appearance of (often false) precision, bigger buckets instead create big cliffs between one bucket and the next. I also share his intuition that law school rankings would be better — if we had them at all — on a bucket model than a scale model.

The same kind of question comes up in law school grading. Some law schools have a scale model with lots of available numerical grades (Chicago has 32). Others have more of a bucket model with 3 or so options (H/P/F, or sometimes H*/H/P/LP/F). Many are in between, with 10 or so options. My intuition is that grades are better on the scale model than the bucket model.

Why would it make sense for these to be different? I can think of two reasons.

1: Law students get lots of grades, but law schools don’t get lots of rankings. When the grades are going to be averaged over a bunch of courses, the resulting average number will already partake of a scale, so we may as well avoid cliffs in the inputs.

2: Trying to get better grades is good; trying to get better rankings is largely wasteful. Under a scale model, most people have a marginal incentive to do slightly better — to study a little more for a slightly better grade, or to lobby a little more for a slightly higher ranking. For grades, this is largely a good thing. The easiest way to get a slightly better grade is to study a little more and learn a little more law, which is valuable. For rankings, this is largely a bad thing. Much of what schools do in pursuit of slightly better rankings is zero-sum or rent-seeking activity.

This is just impressionistic, and I’m sure there are exceptions too. And of course, there may be times it makes sense for law school grades to instead switch to the ultimate bucket model — pass/fail. That might be a topic for next week.

The Fundamental Problem with U.S. News Law School Rankings

The 2021 U.S. News Law School Rankings were just released. Typically the release of these rankings leads to a round of criticism, where people point out that the rankings incorporate the wrong things or that they don’t do a good job of measuring the things they do incorporate. Many of these criticisms are valid. But the fundamental problem with the U.S. News rankings is not what they measure or how they measure it. The fundamental problem is false precision.

Every year when these rankings are released, some law schools jump up in the rankings and some law schools fall down in the rankings. This kind of churn is good for the ranking’s publisher because changes — and the possibility of changes — generate attention. For example, Above the Law’s post on the new rankings has the headline: “The 2021 U.S. News Law School Rankings Are Here. Check out some of the largest rankings tumbles and gains. Yikes!”

But almost all of these changes are just noise. Most of the year-to-year movements are not because anything meaningful has changed at the schools, but instead because of slight differences in a few variables. For instances, a few admitted students with lower LSAT scores can move a school’s median number down and trigger a drop in the rankings. This problem is exacerbated by the fact that there is measurement error in many of the concepts (like academic reputation) that the rankings are trying to quantify.

Given these problems, the law school rankings should be made less granular. It’s misleading to say that we have any confidence in the exact position of a law school in a given year (e.g “the University of Springfield Law School is the 35th best in the country”), but it may be possible to say a range with some confidence (e.g “the University of Springfield Law School is between the 25th and 50th best in the country”). Or, to put it in statistical terms, it is a mistake to focus on the point estimate instead of on the confidence interval.

Of course, if law schools were ranked in buckets where there are actually dividing lines, there would be some trade offs. For instance, it would take schools years to change buckets, and the costs of falling into a lower bucket would be higher. But a ranking based on buckets would present a more accurate picture of the world. And, as an added benefit, it would help stop the embarrassing practice of having to watch administrators take credit for minor gains or explain away minor falls each and every year.

Posts elsewhere, a digest

I’ve been letting Adam down lately by posting a couple of items over at Volokh. One is a series of posts about my newest article, Adjudication Outside Article III. (I have a longer roundup post on that planned once those posts and some other things all go online.)

The other is an announcement that the Federalist Society’s Joseph Story Award has been given to one of the smartest law professors I know: Stephen Sachs, of Duke. Steve is brilliant, does creative and important work, and is the perfect person to receive the prize. This is also relevant to several recurring topics on this blog. Adam and I blogged last December about prizes for legal scholars, (Adam, me) and I think we ought to signal-boost good ones where they exist.

I’ve also written several posts about the Federalist Society which some of you loved and some of you hated. In Steve’s remarks accepting the prize, he provides some thoughts of his own:

Third, I’m honored to receive this award from the Federalist Society, which similarly combines a commitment to intellectual discovery with real-world accomplishment.

I wanted to become a lawyer, partly from my dad’s example, but also because, as a lawyer, you could go into a library, do some research, make an argument—and the hope is, at the end of it, the world would be different. This is the ideal that Hamilton described in the very first paragraph of The Federalist No. 1—that societies might be capable of “establishing good government from reflection and choice,” and not “forever destined to depend for their political constitutions on accident and force.”

I don’t know of any other organization, in America or elsewhere, whose members are simultaneously at the forefront of serious scholarship and at the forefront of government in quite the same way.

Finally, I’m particularly honored to receive this award because it shows something very special about FedSoc, something that’s unfortunately in diminishing supply today.

When I was a student, I wasn’t sure about joining FedSoc. I was still figuring out what I thought about things; I would have never attended one of these symposia; and I would never have expected to receive an award like this one.

But one of FedSoc’s true advantages, and the point I want to leave you with tonight, is that this openness, this willingness to bring people in to think things through and get to better answers, is its extraordinary strength.

By current standards, FedSoc’s politics are wildly diverse: they run the whole gamut from conservative to libertarian! That might not seem like much. But what it means is that, on any one issue, you can find someone in FedSoc who passionately but respectfully disagrees with you.

That’s true for controversial issues, like abortion or same-sex marriage or presidential candidates.

And it’s true for even more controversial issues, like economic liberty or industrial policy or the unitary executive or whether Erie Railroad v. Tompkins should be overruled. (Which it should.)

FedSoc has made the choice, and it’s a deliberate choice, not to make endorsements or write manifestos or establish litmus tests. There are no Thirty-Nine Articles which every one of you had to sign. Instead, there are just broad commitments—including a commitment to discussion, to reasoning together, as the way to get things right.

Now, FedSoc isn’t just a debating society: there really are positions that most people in it share. And these ideas matter.

The point of FedSoc is not just to have a good time talking (though we do).

And it’s not just to find people you agree with (though that can be a comfort).

It’s actually to reach the truth, talking it over with those with whom you share enough to make your disagreements meaningful.

In an age when disagreement is often treated like disloyalty, and when curiosity is often confused with cowardice, a commitment to open discussion and truth is like water in the desert.

Trump Creates Airport Chaos. Again.

One week after taking office in January 2017, Trump signed his first Muslim ban.[1] Even if we set aside the ethics of this executive order, and we should not, the near-universal consensus is that the administration’s execution of this ban was a total disaster. It contained numerous obvious legal problems—e.g., it confused short-term travelers with green card holders—and the roll out was beyond botched. Just one (egregious) example: the administration didn’t think through what to do about people already in the air.

In Border Wars [2], a recently released book on the Trump Administration’s immigration policy, Julie Hirschfeld Davis and Michael Shear offer a behind-the-scenes account of how the Muslim ban came to pass. You’ll have to read their book to get the full details [3], but the short version is that a small group within the administration, led by Steve Bannon and Stephen Miller, drafted the ban outside of the normal inter-agency process. Instead of giving relevant experts at the National Security Council, the Department of Justice, or the Department of Homeland Security time to weigh in and plan, Trump abruptly signed off on the policy on a Friday evening. The image that came to define this policy misfire was chaos at our major airports as people with what they thought were valid visas were unable to get into the country. (Here are 37 photos in case you want to remind yourself of what it looked like that time.)

You might have thought that Trump’s inner circle would have learned from this experience. After all, they issued the Muslim ban during their first week in power, so it’s perhaps understandable that they did not know how to manage a complex bureaucracy like the federal government. But, at least with respect to immigration policy, the same pattern has repeated again and again. From building a border wall to deciding to separate families at the border, the administration’s policy issuance and implementation has been poorly coordinated and poorly planned.

The same story repeated itself last week. Trump gave an Oval Office Address on Wednesday March 11th announcing a plan to halt travel from Europe. The speech, reportedly drafted by Stephen Miller and Jared Kushner, was filled with inaccurate statements and rolled out a policy the government was not prepared to implement. The result, once again? Chaos at our major airports as thousands of travelers waited in line for hours to clear customs. In the process, these travelers were likely exposed to coronavirus, and are thus likely to in turn spread around the country even more.

These two incidents of airport chaos illustrate how, three years apart, Trump is still relying on a small group of loyalists who do not understand how to manage the complex federal bureaucracy. Unfortunately, although the administration has made plenty of mistakes, it does not seem to be learning from them.

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[1] I know the media, courts, and even Wikipedia (https://en.wikipedia.org/wiki/Trump_travel_ban) have decided to play nice and call this executive order a “Travel Ban.” If you read the history of how it came to pass, it’s pretty clear that the Trump administration wasn’t motivated by fear of too many “travelers.”

[2] This is not sponsored content, but if you’re looking to buy a book, consider ordering from the Seminary Co-op Bookstores, which is the country’s first not-for-profit bookstores whose mission is book selling.

[3] I moderated a discussion last month with Julie and Michael about their book for the Institute of Politics. If you’re interested in learning more about the Trump Administration’s immigration policy, the video is available here.

Social Media Distancing

Adam and I were supposed to have dinner last night at one of my favorite restaurants, but we both decided to cancel as part of our efforts to bend the curve. As the current pandemic disrupts our daily lives, it’s hard to know whether to let it disrupt our virtual lives as well.

In the next few weeks I’ll likely be posting about some academic projects and other things that have nothing to do with the pandemic. (Unless dealing with the disruptions becomes so overwhelming that I stop posting at all.) That doesn’t mean I’m not thinking about it all the time, just that I have to make up for not being able to see Adam or the rest of you in real life.

Coronavirus and the Uncanny Valley of Democracy

The Chinese government took dramatic action when it shut down Wuhan and other cities in the Hubei province on January 23rd. There have been endless accounts of how the government imposed draconian travel restrictions and imposed a “war like” campaign to stop the spread of the coronavirus. The government was able to act so decisively, in part, because it is an autocratic state that is able to coerce its people’s movement, work, and activities.

Although democracies can’t coerce their people as easily, democratic governments have other advantages that help during times of crisis. Most notably, democratic governments are more transparent, they are more accountable to the people, and they have free markets that unleash individuals to find creative solutions to problems. These advantages are huge. They’re why democracies win wars at higher rates than autocracies and have faster growing economies. If I had to bet on what kind of government is going to be better able to address a major crisis, my money is on a democracy.

But this brings me to the concept of the uncanny valley. The uncanny valley is a concept from visual mediums. The idea is that depictions of people that are close-to-realistic, but not all the way realistic, are more off-putting than depictions that are much less realistic. I’d describe it in greater detail, but there’s really no way to do it better than 30 Rock did when Tracy Jordan asked Frank to “tell it to me in Star Wars” (start this clip at 4:45).

So why is this relevant?

I’m worried that the United States has slipped into the uncanny valley of democracy. We used to be all the way democratic — or at least, democratic minus the electoral college, gerrymandering, and a few other anti-democratic institutions — which was great for a crisis. We had transparent governmental institutions and amazing companies that were able to work together to solve problems.

Now, by contrast, every report coming out about the US government’s response to the coronavirus is that the Trump administration is trampling on the advantages that democracies have to address crises. For example, the administration is attempting to eliminate transparent institutions by trying to classify government deliberations on how to respond to the virus, and has prevented private firms and front line doctors from innovating in ways that would have helped increase coronavirus testing. (Though, to be fair, Steven Soderbergh warned us that the government might try to block private doctors from finding solutions — thankfully Elliott Gould didn’t listen.)

This is almost the worst of all worlds: a government with non-transparent institutions, dictating top-down “solutions,” but without state capacity to take dramatic steps. The Trump administration needs to reverse course fast and unleash the power of democratic institutions to help fight the coronavirus: be honest, be open, and allow for flexibility in the search for solutions.

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Update: A good thread on how, in South Korea, transparency and innovation were a key to the successes they’ve had limiting the spread of the coronavirus.

The Assault on Doctrine

Will’s post on Hernandez v. Mesa highlights the latest offensive in the Supreme Court’s assault on doctrine. Over the last few years, in a number of cases, several conservative Justices have expressed their willingness to overrule prior decisions that established legal doctrine. Although their reasoning has varied depending on the case, the basic argument has been that various doctrines should be abolished because they were created by judges—which is, definitionally, true—and these doctrines are not sufficiently grounded in the constitution.

To be clear, the phenomenon I’m talking about is different than Justices expressing a willingness to overrule prior decisions generally. All Justices are open to overruling existing precedent some of the time, and the Court frequently does. And as Will points out in his new article, Precedent and Discretion, the best evidence suggests that the Roberts court has actually overruled precedent less often than the Rehnquist, Burger, or Warren Courts. What I’m talking about is Justices being specifically open to striking down “judge-crafted” law specifically because it was judge-crafted. For instance, one particularly on-point example is Justice Thomas’ concurrence last year in Gamble v. United States calling to revisit the doctrine of stare decisis itself.

When the court strikes down doctrine, it is striking down legal frameworks that help govern society. This is not to say that all doctrines are good or worth preserving, but judicial rules that have developed over time frequently serve important functions. For instance, in Hernandez v. Mesa, the doctrine being questioned is the legality of allowing Bivens actions, but Bivens created a pathway to check constitutional violations of federal officers.

Importantly, this assault on doctrine is occurring at the same time two other trends that limit our political institutions’ ability to govern: gridlock and preemption. The first trend—gridlock—is straightforward. Anyone that’s paid even the slightest attention to Congress knows that it increasingly has difficulty passing legislation to deal with anything more complicated than naming post offices, let alone pressing national problems like immigration reform or regulation of the tech sector. The second trend—preemption—is that federal laws have limited state and municipal governments’ ability to regulate a wide range of issues.

When taken together, these trends mean that, in many cases, the Supreme Court is rolling back legal rules that address significant issues without a realistic possibility that these rules will be recreated by national, state, or local laws. This problem is particularly acute in cases, like Will identified, where the doctrine was initially created to override other laws or authority in the first place.

Bivens Liability and Its Alternatives

On Tuesday, the Supreme Court decided in Hernandez v. Mesa that there is no cause of action for damages if a federal border patrol agent unconstitutionally shoots somebody across the border. The Court had recognized a cause of action under the Fourth Amendment against federal law enforcement agents in a 1971 case called Bivens, and extended it in two subsequent cases, but it has rejected further Bivens claims in every Supreme Court Bivens case in my lifetime and that doesn’t seem likely to change. Two Justices, Thomas and Gorsuch, have called for Bivens to be overruled on the grounds that it lacks a formal or historical basis.

Justices Thomas and Gorsuch are right about that the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas’s concurrence notes, it’s not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:

From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen’s constitutional rights. Suits to recover such damages were generally brought under state law.

What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress’s 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we’re entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?

Normally the Court lacks the ability to take a big-picture view in these cases, since it has only the issue before it. But in Hernandez, the petitioner foresaw this problem and petitioned the Supreme Court to consider a second question — if there is no Bivens liability, then, he asked:

whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

So Hernandez is the rare case in which the Court could have considered both questions at the same time and thus provided an account for what violations of constitutional violations remain. It does seem perverse to think that Congress can eliminate state law damages for constitutional violations without either Congress or the courts providing an alternative . It’s possible that this seemingly perverse result is constitutional, especially if one takes a broad view of federal power, but it seems troubling for the Court to repeatedly narrow Bivens without at least considering that question.

Should Police Be Immune from Liability for Grenading* a House?

The Supreme Court has received quite a few cert. petitions lately asking them to reconsider aspects of the doctrine of qualified immunity, which prevents executive officials from being held liable for some unconstitutional behavior. In one of them, a group of a dozen law professors (including me) filed an amicus brief on Friday urging the Court to take up the issue.

Our brief is signed by me, Karen Blum, Erwin Chemerinsky, Alan Chen, Barry Friedman, Robert Leider, Sheldon Nahmod, Jim Pfander, John Preis, David Rudovsky, Joanna Schwartz, and Fred Smith — a group of scholars from across the ideological and methodological spectrum. And while there are a variety of alternatives to the doctrine, and a variety of historical and policy arguments against it (my own prior article is here) we suggest that there is a growing academic consensus that something should be done about it.

Here is the introduction:

Protecting Americans against abuses of government power was a critical concern of the Founding generation—reflected in the Bill of Rights. In the aftermath of the Civil War, and the adoption of additional constitutional amendments, Congress enacted 42 U.S.C. § 1983 to provide a remedy to vindicate those constitutional protections.

Nearly a century later, this Court recognized a qualified immunity defense to Section 1983 damages claims, holding that Congress’s creation of the cause of action should be construed to incorporate the good-faith defense that, the Court stated, was then available to government officials at common law. See Pierson v. Ray, 386 U.S. 547, 557 (1967).

Subsequently, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court “replac[ed] the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action.” Anderson v. Creighton, 483 U.S. 635, 645 (1987). Harlow held government officials immune “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818.

In the thirty-eight years since Harlow, the Court has provided shifting guidance regarding the “clearly established law” standard. Hope v. Pelzer rejected the lower court’s holding that the plaintiff must identify “cases that are ‘materially similar’” to the case at bar to defeat qualified immunity, instead focusing on whether pre-existing law provided a “fair and clear warning” that the conduct at issue was unlawful, even if arising under “novel factual circumstances.” 536 U.S. 730, 735-736, 741 (2002). More recently, however, the Court held in Ashcroft v. al-Kidd that plaintiffs must identify “existing precedent” that places the legal question “beyond debate” to “every” reasonable officer. 563 U.S. 731, 741 (2011); see also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).

Amici submit that—for multiple reasons—the time has come to reconsider this qualified immunity standard.

Recent scholarship demonstrates that the foundation of the immunity doctrine—the assertion that government officials enjoyed protection from damages liability at common law—is incorrect. No such general immunity existed. Today’s immunity rule compounds that initial error, moreover, because it is far broader than the one the Court (mistakenly) attributed to the common law.

Studies also have determined that the policy justification for the current rule simply is not true. The overwhelming majority of government officials are either indemnified or protected by insurance, and immunity therefore is not required to ensure that they properly perform their duties. And far from reducing litigation costs, the complex procedural labyrinth constructed by immunity doctrine actually increases both the length and cost of Section 1983 lawsuits.

Most importantly, today’s immunity rule has the inevitable real-world effect of diminishing constitutional protections. And in no context is that effect more pronounced, and more directly contrary to the intent of the Constitution’s Framers, than with respect to Fourth Amendment guarantees such as those at issue in this case. 

Many lower courts today dismiss Section 1983 claims on immunity grounds without first determining whether the plaintiff has alleged a violation of his constitutional rights. That significantly hampers development of the law, particularly in cases involving new technologies and new fact patterns. And it means that future constitutional violations will go unremedied for want of a prior precedent declaring the conduct unconstitutional.

Importantly, stare decisis principles do not bar reconsideration of the qualified immunity standard. Although this Court has stated that stare decisis generally has enhanced force with respect to statutory interpretation precedents, it also has held that this rule does not apply where Congress has left it to the courts to “‘give shape to the statute’s broad mandate by drawing on common-law tradition.’” State Oil Co. v. Khan, 522 U.S. 3, 20-21 (1997). The Court’s qualified immunity doctrine rests on just such an exercise of judicial authority.

Finally, scholars have identified a number of alternative immunity rules that would ameliorate the adverse effects of the current standard. And Congress could of course act to address the issue, as it has in the past in response to this Court’s resolution of an immunity issue.

Here is a page about the facts of the case from the Institute for Justice. Or as we put it in the brief:

Indeed, the facts of this case present a particularly striking example of how far qualified immunity has wandered from constitutional principle. A group of government officials deliberating and then deciding to bombard an innocent person’s home with grenades would surely have been answerable to a Founding-era jury. There is neither a historical reason nor a policy justification for that result to be different today.

A response is due in late March, so the Court will likely decide sometime this spring or summer whether to hear the case.

*UPDATE: I’ve been persuaded that the title of this post was too hyperbolic. To be clear, the police used tear-gas canisters, also known as tear-gas grenades, which were fired into the house out of some kind of shotgun. So while they were grenades, I wouldn’t want readers to get a false impression, and perhaps should have written “tear-gassing a house” or “shooting tear gas canisters into a house". Again, you can read more factual detail at the Institute for Justice’s website.

What Makes The San Diego Originalism Conference So Good?

I’m writing this post from San Diego, California, where I’ve just arrived for the Eleventh Annual Originalism Works in Progress Conference. (My co-author Steve Sachs and I will be presenting our work on The Misunderstood Eleventh Amendment, which we’ll be blogging about soon.) I’ve been to this conference for ten straight years and it is the best academic conference I attend, so I’ve been trying to reflect about why. Here are a few factors.

1. Of course it doesn’t hurt that it’s in San Diego in February. But I’ve been to lots of conferences that are just an excuse for a vacation, and this definitely isn’t one. Why?

2. The papers are selected by a competitive submission process, so they tend to be good. And yet it is also restricted to unpublished work, so discussion is still very valuable. This is probably the sweet spot for great academic conferences.

3. There is a core group of regular attendees, who take the intellectual content very seriously.

4. The papers and discussion are united by an intellectual interest in the original meaning of the Constitution (although many of the regular attendees are critics of originalism rather than self-described originalists). This means that the level of discussion tends to be very high. At the same time, very few constitutional law professors have this level of familiarity with both history and interpretive theory, so the conference facilitates a discussion that couldn’t happen anywhere else.

5. In other words, it’s one of the only conferences I’ve been to where we aren’t just asking the same questions all over again. Intellectual progress is made every year.

As I cut back on professional travel, this conference remains one of my highest priorities.

A conversation with Judge Douglas Ginsburg

Judge Douglas Ginsburg, a senior judge on the Court of Appeals for the DC Circuit, is an interesting person. In addition to his judicial duties, he is also a law professor (at NYU until recently, now at Scalia Law at George Mason) and now the host and producer of a PBS Series on the Constitution. The show is a three-episode mini-series called A More or Less Perfect Union, and you can watch it online here.

Last week, I had the good fortune to interview Judge Ginsburg about the program in front of an audience here at the University of Chicago. While our conversation might not be as good as the show itself, it was a lot of fun and you can watch it online here. My favorite part was when an audience member asked the judge what were the worst and best things that had happened with respect to the Constitution in the last 30 years. I liked both his answers, but they may surprise you — especially the worst thing. You can watch that exchange around 1:07:00.

Why Clerkship Plans Have Failed

Will’s proposal to reform the clerkship hiring plan is modest. Not modest in the fun satire sense. Modest in the sense that it would be a small, reasonable fix that would probably make things a little better. But it wouldn’t prevent students from going through years of unnecessary stress trying to figure out how to get a clerkship.

Before trying to identify solutions to current state of the world, it’s worth laying out the problems that lead clerkship plans to unravel. I think there are four of them.

1. Scarcity. The judges perceive that there is a supply side constraint on the kinds of students they want as clerks. For instance, we know there is huge ideological sorting in the clerkship process, and the share of law students that are conservative is smaller than the share of judges that are conservative. So conservative judges feel rushed to hire the “good” students before they all have clerkships.

2. Declining Marginal Value of Grades. Each semester of grades that a student has provides more data points about their intellectual ability. But the marginal value of additional grades decreases over time. Many judges have decided they are willing to gamble that, although they have less information, that they’d get better clerks if they strike early instead of waiting for more data.

3. Judges’ Inability to Bind Themselves. Judges can’t bind themselves to a plan because the judges that deviate face no sanctions from doing so. They don’t lose out on applicants, hiring slots, or anything else they might care about.

4. Clerkship Placement is a Zero Sum Game. Schools are better off if they place more students in clerkships, and they know that any clerkship their students don’t get will go to a student from another school. So they can’t credibly commit to punishing students or judges that fail to comply with any plan.

So how do we fix the clerkship market? Solve any one of these problems. For instance, judges would feel less pressure to jump the gun if we could increase the supply of students they wanted as clerks (or, even less plausibly, if we figure out a way to de-politicalize the legal profession so the judges are equally interested in hiring all good students).

Judges would also be more likely to wait to hire students if we reformed the way we evaluated law students to make our grades more reliable. It’s a mistake that law schools never place the blame for judges not caring about the grades we produce on ourselves. We could certainly do a better job if we were to analyze our process of evaluating students and find ways to improve it. Because, if our methods of sorting students were more reliable, judges and firms would be more willing to wait for that sorting process to play out.

But the best solutions all involve solving problems (3) and (4). We need a way to ensure that there are consequences — imposed at either the demand side (e.g. the judiciary) or the supply side (e.g. law schools) — for violations. Without that, it’s tough to imagine any plan working for very long.

That said, perhaps the demands placed on judges from Will’s proposal would be small enough judges wouldn’t feel the need to deviate.