Supreme Court Preview 2017: Highlights and Perspectives
On the first Monday in October, the Supreme Court session opens. Professors Adam Chilton, Aziz Huq, and Daniel Hemel offer insight into some of the issues the Court will hear in the upcoming year.
Recorded on September 18, 2017, in Washington, DC.
Transcript
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Chilton:
Well, I want to talk today, uh, about the immigration cases that are before the Court in the first two weeks of the term this year. Now, uh, immigration law has long been defined what's, uh, alternatively referred to as either the plenary power doctrine or, uh, more broadly immigration exceptionalism. Now, this is a sort of, uh, set of ill-defined doctrines that, uh, where the precise contours are not clear. But the basic idea is that there is more deference given to the political branches in the area of immigration law than in other areas. And it's sometimes, uh, the, uh, shorthand for explaining this is that distinctions and procedural limitations that we would not tolerate in other areas of either the criminal law or the civil law are allowed within the immigration system. And the courts have been unwilling to question these. Now on the last day of the last term on June 26th, uh, things were, uh, moving towards the potential for the entire idea of immigration exceptionalism to be reconsidered. Now, on that day, the Supreme Court had to weigh into the Trump travel ban cases, uh, as well as there were two cases that had been argued earlier that term, uh, Jennings v. Rodriguez and Sessions v. Dimaya. They both also put this immigration exceptionalism, uh, uh, directly in front of the Court. Now instead of actually, uh, issuing opinions that decided these questions, the Supreme Court, uh, in a, uh, to an extent punted. That is, uh, a partial stay was granted in the Trump travel ban and re-argument, uh, excuse me, argument was scheduled in that case for October 10th. And for both Jennings v. Rodriguez and Sessions v. Dimaya, even though they had been argued earlier in that term, uh, they were set for re-argument at the start of this term on October 2nd and October 3rd, respectively. So it's now the case that the first few weeks of this term, the Supreme Court is going to have to reconsider, uh, directly these issues and try to decide what our immigration law is all about.
Chilton:
Now for this to make sense, before I get into the specifics of these decisions, uh, and the issues before the court, I want to take a step back and talk about, uh, the idea of immigration exceptionalism more generally. So what's this all about and how did we get here? Well, the answer is, uh, goes all the way back to, uh, to the, the, um, initial drafting of the Constitution. And the reason is, is that although, uh, a common thing for constitutions to do is to define who is part of a political community and who's allowed to join it, that is who is a citizen. And how do you become a citizen? Our constitution is almost entirely silent on immigration issues. Now, the reasons are obvious that during the debates over the ratification of the Constitution, slavery was such an overwhelmingly large issue that the founders couldn't come to agreement about how you regulate the borders. Who's allowed to come into the United States, how you become a citizen or even who the protections in the Bill of Rights, uh, may eventually apply to. So it's only until after the Civil War that we start to get answers on these questions. So for example, the 14th Amendment provides our first definition of citizenship. Uh, and it also then clarifies that the Bill of Rights applies to all persons who will be guaranteed equal protection and due process of the law. But this still doesn't clarify exactly what the limits are. When the political branches try to issue, uh, these, make decisions about the limits of immigration power. Instead, what happened was a series of three cases that all came in, uh, the late, uh, the late 1800s that set the stage in the scope of what the federal power is over immigration law. So I'll just briefly mention all three.
Chilton:
So the first case is a case called Chae Chan Ping, uh, v. the United States from 1889. Uh, and there's a long and complicated backstory behind the case, but basically, uh, it's from a period of increased Chinese migration and the Chinese occlusion period. So what happens is the United States has a treaty with China allowing laborers to come to the United States to work in the mining industry, build the transcontinental railroad in a number of other areas where there is huge demand for labor in the Western United States. Uh, and Chae Chan Ping is one of the laborers that moves to San Francisco as part of this movement. Now, uh, after he's here in 1882, a new law's passing, despite the fact that this treaty is in place, it will be the case that no new, uh, Chinese laborers are allowed into the United States. And you're only allowed to return to the United States if you ever certificate saying that you're here. So Ping gets one of these certificates, goes back to visit family in China. And when he's on the boat, on the way back, the United States changes the law and says, even if you have a certificate saying that it's valid for you to be in the United States, we're not allowing Chinese nationals back into the country. So at this point, the issue goes to the Supreme Court. And the question is whether or not the federal government has the authority to keep out Ping and more broadly Chinese nationals that previously had been authorized to be in the United States. The Supreme Court in a unanimous decision issues broad language saying that the heron sov, the inherent sovereign power must include the power to exclude and the government has the right to determine who should be part of the United States and who should not be. And the court is going to give this extraordinary deference, right?
Chilton:
So this is a law that explicitly discriminates on the basis of nationality, uh, where the motivations behind it at the time were explicitly racist. And the Supreme court says we won't wade into the motivations or think about whether or not this is a violation of some other constitutional principle. We have two other decisions shortly after, uh, that further defined the, the scope of federal immigration power. So the next is from 1893, which is Fong Yue Ting v. the United States. And at this point in 1892, Congress has passed yet another law aimed at targeting Chinese nationals. And this law says that if you're in the United States lawfully, you have to get a certificate saying that you're here lawfully that's certified by a white witness. So for many Chinese laborers, this proved to be an insurmountable barrier. Even people that had been in the United States for years couldn't find a white witness that would testify in court saying that they had been in the United States five, 10, uh, two years, however the case may be. And so what happens is a Fong Yue Ting is ordered, deported, even though he tries to apply for the certificate on the basis of not having a white witness to testify to the length of time that he's been in the United States. Again, this goes to the Supreme Court and the Supreme cCourt says the inherent power to exclude that we previously established also must have the right to deport. And if it's the case that you can keep anyone from entering in the country, you must then be able to kick anyone out of the country that's not legally a citizen. Beyond that, the, uh, the Court says that it's not going to challenge their requirements that Congress puts upon this. Now, a third decision that comes shortly after is based on the same act. So that same 1892 law also said, uh, that it's the case that you can sentence someone to one year of harsh imprisonment for uh, violating the law.
Chilton:
This is where the Supreme Court draws a line and says, uh, although it's the case that you can deport someone for violation, uh, being in the law, the case unlawfully, we allow you to do that because immigration crimes are civil violations, not criminal violations. And the result is we can deport people with limited procedural protections, but you can't give them criminal punishments. Now, what does this all add up to? When you add these three cases together? What you get when you combine them is first the courts established the principle that distinctions that may not be tolerated in other areas of the law when they're drawn between citizens, like based on nationality or gender, et cetera, may be tolerated within the immigration lounge realm. Second, that the courts are unwilling to question the motivations behind some of these distinctions. And third, as long as the immigration, uh, crimes themselves are civil, the procedural protections that we offer in criminal cases are not required within the immigration sphere. Now, many cases from this period, for example, uh, Plessy v. Ferguson, most notably that, uh, tolerated, uh, distinctions based on race within the United States are now part of the anti-canon of constitutional law. No one with a straight face could say because of logic lay down in Plessy. Here's the justification for an existing law. The same is not true in immigration law and these initial founding cases, although they may not be explicitly cited, the same logic is used again and again to justify you immigration law, you being unique and different and outside of the scope of review. Of course, now over the years this has narrowed and changed. It's not as if that we've had no developments in a 130 years in immigration law. Uh, but it's been slow. Immigration advocates have been trying to argue that we should narrow down the scope of the plenary power doctrine or immigration exceptionalism, and increasingly require that the immigration system incorporates procedural due protections that we require for citizens or in the criminal law system.
Chilton:
And that we don't give the political branches such broad discretion to draw distinctions that we might seem constitutionally impermissible. Now, advocates had been, uh, developing strategies to get cases before the Supreme court over a course, uh, over the course of years, including, uh, Jennings v. Rodriguez and Sessions v. DiMaya. Uh, and we've been making progress narrowing the scope of these now. Uh, all that changed with the death of Justice Scalia, the failure to get the confirmation of Justice Garland or potential Justice Garland, uh, Judge Garland, uh, and the election of Donald Trump. And so what had seemed like a culmination of years of efforts to try to reverse immigration exceptionalism. It's now in front of the Supreme Court and it looks more likely that the Supreme Court is either going to Dodge the issue or issue opinions that are likely to reaffirm, uh, the unique power of the federal government over immigration law. Now that brings me to the, the two cases that I wanted to discuss more specifically, which is, uh, the travel ban case, uh, which is, uh, Trump v. The International Refugee Assistance Project and Trump v. Hawaii and also Jennings v. Rodriguez. So, uh, in the travel ban case, uh, the facts I'm sure familiar to all of us, but the, uh, basic contour is that Trump issues, uh, an executive order, uh, shortly after taking office on January 27th, that has a 90 day entry bar to nationals of seven countries, suspends the refugee program, and makes a number of other changes. And this initial rollout is largely seen, uh, is being, uh, incompetently executed, right? So it's the case that, uh, initially the administration says that it applies to green card holders and then they backtrack a day later and said, of course we did not mean it would apply to green card holders.
Chilton:
That would be crazy. Uh, they do the same thing with dual citizens where they, for example, someone was a citizen of Iraq in the U K they could, uh, at first it was said that you couldn't come to the United States on your UK passport. And then that was a changed as well. Uh, and if you remember, there was just essentially chaos at airports because people were arriving with valid visas. And when they got to the customs agent being told they were no longer valid. Now this was immediately challenged and dozens of lawsuits across the country, uh, but most notably, uh, a case out of Washington issued a nationwide injunction that was then later reaffirmed, uh, by theNinth Circuit. Now, in response to this in March, Trump issues a second executive order, uh, making a few changes to the first. Iraq was removed from the list of countries. There's a 10 day waiting period before the order goes into effect, uh, in a number of other changes. Clarifying who that it applies to. This is challenged once again in a number of cases. And we ended up getting decisions coming out of the Fourth and the Ninth Circuit on different grounds. So the Fourth Circuit case, uh, which is, uh, the Trump v. Iraq case issues and opinion, uh, that grants a preliminary injunction on statute, excuse me, on a establishment clause grounds. So the, uh, they issue a constitutional decision saying that it's a violation of the establishment clause, uh, to issue a Muslim ban. Now, the Ninth Circuit also hears this case, but reaches it on statutory grounds. And what they say is that it's a violation of the ina tissue such as a widened, sweeping order without the president making a finding that this particular groups of immigrants pose a risk to the United States.
Chilton:
So here what we have is a statutory argument for this to be the case. Now, uh, this is now before the Supreme Court and they have to make a decision. So what's likely to happen here? Well, the most likely thing I think, uh, is that the one of a number of, uh, uh, judicability arguments that the court won't be forced to get to the merits, most notably mootness. So, uh, after the Supreme Court issued its decision in June, uh, we then start the clock running on the 90 day ban and the 90 day ban end September 24th, next week. After the 20, uh, the end of the 90 day ban, when the case reaches the Supreme court on October 10th, there's a likelihood that the Supreme Court will simply say it's now moot because the 90 days are over. Now, it's not obvious this will happen. It could also be the case that the court could, uh, alternatively, uh, excuse me, that the prep, the administration could either, for example, say that they need more time to complete their review or make some of the changes permanent, in which case it won't be a moot issue. Uh, but this gives the Court an out without having to actually reach the merits. If the court is forced to reach the merits, what there'll be deciding goes to the core of immigration exceptionalism. That is, is it the case that we end up saying that the establishment clause violation w uh, that is, uh, issuing an order that there is a good evidence on the record was initially intended to be a Muslim ban is permissive because in the case of immigration law that we're likely to allow this? Or is it the case because there's so much deference to the president through the Plenary Power Doctrine, then it's this area, uh, the court will simply stay out. So once again, this case gets straight to the, the core here. Now, uh, briefly, a few words on, uh, Jennings v. Rodriguez. So Jennings v. Rodriguez, uh, the second big immigration court, a case that the court is considering this term.
Chilton:
Now, what's it all about? This is received less attention, but for immigration advocates, uh, is hugely important. And the issue here is that certain classes of aliens can be detained, pending removal, uh, without the possibility of getting individualized bond hearings to determine whether or not they're a flight risk or public safety risk. In other words, uh, if you get put into removal proceedings, you can potentially be held without the possibility of bail, uh, for years in the immigration detention system, uh, without any way to argue that you yourself are not a flight risk, uh, and shouldn't be there. Now, uh, it's a little more complicated than that in that this applies to three classes of people. It applies first to people that are being held for immigration removal proceedings that have previously committed a crime or that they were put into removal proceedings upon arriving at the United States, the arriving class members or third class of people, which is people without criminal records that are initially given a bond hearing, but then don't have the possibility of a later bond hearing if they'd been held for a very long time. So you might get a bond hearing in your first week, but then if you're then held for a year or two years that you don't have the case to reargue, chance to re argue. Now initially, uh, this case that came out which came out of the Ninth Circuit was argued on statutory interpretation grounds and what was argued was that due to principles of constitutional avoidance, the statute should be interpreted narrowly to say that it doesn't explicitly authorize indefinite detention and therefore that after six months have past that individualized hearing should be authored so that people can make their case that they deserve bond. The Supreme Court initially held arguments on this last fall on the, when the briefs had been done on the statutory question and afterwards the Supreme Court asked you for repressing on the constitutional question directly. That is, is it a violation of due process to have people in detention for more than six months without actually, uh, being able to, to argue their case for an individualized bail determination?
Chilton:
Now, once again, like with Trump v. Iraq this case puts squarely on its head the issue of immigration exceptionalism. And the reason is, is that within the criminal system, it's clear that you couldn't be held, uh, without the possibility of individualized determination, uh, what's going on, nor in other civil contexts that apply to citizens. Do we allow, uh, these indefinite detention without the possibility of the hearing? So the question then that the Court has to decide are the constitutional decisions that have previously said that in the criminal case or civil cases for citizens that say that the Fifth Amendment due process requires individualized hearings. Do we think that those apply to, um, immigrants in the United States as well? Now, as I said, uh, this is a case where the, the strategy to bring this case to, uh, is been ongoing for years. Uh, and it seems as if we could, uh, the advocates were pushing to get more, uh, more, uh, scrutiny over immigration, criminal, excuse me, immigration proceedings. Uh, but now it looks like that might not be the case. And the reason is, is that these arguments, uh, the argument in Jennings v. Rodriguez, uh, the speculation is that it was a four-four split. The justices couldn't reach a decision and they're now having it re argued with Justice Gorsuch. So the speculation is that the government will win. Uh, the question then is whether or not it's on narrow grounds or prod grounds that reaffirm immigration exceptionalism. Alright. I think I talked way over my time. Uh, my apologies. On to Daniel Hemel.
Audience:
This. Yeah. Okay. Sorry.
Hemel:
I am, uh, here to talk about two labor cases a and one federalism case. Uh, so a lot of us are excited about the first Monday in October, the beginning of the new Supreme Court term. I think it's safe to say the American labor movement is not excited about this Supreme Court term. Um, it's been a bad decade, really a bad quarter century for the labor movement at the Supreme Court. I think this will be a particularly bad year in that bad quarter century. Uh, so on the first Monday in October, uh, three labor related cases will be argued in consolidated: NLRB versus Murphy Oil, Epic Systems versus Lewis, and Ernst and Young versus Morris. And these all have more or less the same fact pattern. Uh, an employee or group of employees sued their employer for violations of the Fair Labor Standards Act and in particular the overtime requirements of the fair labor standards act. So if you're not a lawyer and you work more than 40 hours a week, then you're paid time and a half for over 40 hours. Um, and in all three cases, the employer put a provision in the contract that said the employees must bring workplace related claims in individual arbitration proceedings. No collective arbitration proceedings, no class actions, no court entirely. Um, and the question is whether these individual arbitration provisions are enforceable. So this is a potential blockbuster because if the court says that individual arbitration provisions are enforceable, it's going to be very difficult for private plaintiffs to Sue for minimum wage and overtime violations, right? If you're an employee and you've been paid $7 an hour, when you really should have been paid $7.25 for a year, that's a $500 claim. But if you aggregate a thousand employees who are in that position, uh, then you've got a larger claim.
Hemel:
Um, and there are 8,000 FLSA claims, Fair Labor Standards Act claims, that are litigated in the courts every year. Payouts can be as high as $200 million in a recent case, uh, involving FedEx. But each individual claim is very small. So the ability to proceed collectively is key. Uh, so the National Labor Relations Board and the employees take the provision that these individual individual arbitration clauses are unenforceable and they point to the National Labor Relations Act of 1935 which says that, uh, it's an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their right to engage in concerted activities for the purpose of mutual aid or protection. So the NLRB says, well, when you come together to litigate a claim, that's a concerted activity for the purpose of mutual aid or protection, the employer can't stop you from doing that. They're violating the National Labor Relations Act if they do. That's the NLRB's argument. However, there's a Federal Arbitration Act of 1925 that many of you have heard of and, and dealt with. Uh, and the key clause there says a written provision in any contract involving commerce to settle by arbitration a controversy arising out of such contract shall be valid, irrevocable and enforceable save upon grounds as exist at law or an equity for the revocation of any contract. And that last clause is known as the savings clause. So the employers say the Federal Arbitration Act says that arbitration provisions are enforceable, they have to be enforceable, and the NLRB and employees say, well, you're ignoring the savings clause. That the National Labor Relations Act is grounds that exist at law for the revocation of a contract, a contract that contains an unfair labor practice. Uh, until November, 2016 the Solicitor General was litigating this case on behalf of the National Labor Relations Board.
Hemel:
Uh, an event occurs in November 2016 and then another event, uh, in January, 2017. Uh, and, and the SG is now on the other side of this case. So we're going to have this strange spectacle on the first Monday in October where a lawyer for the NLRB, a federal agency, will get up and argue one side of the case and then a lawyer for the SGS office, also from the federal government, will tell the justices why the NLRB is wrong. On the merits, uh, the NLRB's argument, I mean it seems plausible as an interpretation of concerted activities in the national labor relations act. Uh, and, uh, generally we would give Chevron deference to an agency's interpretation of the statute that it administers. And the NLRB says the federal arbitration act doesn't change this at all for two reasons. Um, first of all, the NLRB is not saying no to arbitration provisions. In fact, they're very explicit that you can require employees to proceed through arbitration. It just needs to be collective arbitration rather than individual arbitration. And there's an interesting amicus brief filed by labor arbitrators saying, yeah, collective arbitration works fine. That's actually more efficient than individual arbitration here. So that's one NLRB argument. Thier second argument is if there actually is a conflict between the National Labor Relations Act and the Federal Arbitration Act, the savings clause of the Federal Arbitration Act says go with the National Labor Relations Act.
Hemel:
The problem is there are a number of, uh, the Court's, more recent cases that seem to accord super statute status to the Federal Arbitration Act. It clears everything in its path. Now, some of these involves state laws that restrict arbitration and the supremacy clause of the Constitution says that federal law trumps state law. Some involve federal statutes that arguably complete conflict with the Federal Arbitration Act. And the Supreme court has to decide whether another statute overrides the Federal Arbitration Act. Is it clear enough to trigger the savings clause? And the Federal Arbitration Act has been around since 1925. There's only one case in which the Supreme court has said that another federal law trumps the federal arbitration act, triggers the savings clause of the federal arbitration act. It was Wilco versus Swan in 1953. It was about the securities act of 1933 and it was overruled in 1989. Uh, so I think, uh, it's, it's probably a pretty safe bet that the employers and the SG a will win here. Um, the legal zeitgeist definitely disfavors private plaintiffs seeking to litigate claims in collective or class actions. Um, on the other hand, justice, Justice Thomas's FAA votes do not always follow predictable ideological lines. And Justice Gorsuch hasn't revealed his hand on FAA issues yet. Um, so that's, that's one thing that uh, the labor movement is not looking forward to a second thing that the labor movement is not looking forward to, uh, is the long conference, uh, on next Monday. So the long conferences, it's the conference where the Supreme Court decides cert petitions that came in over the course of the summer and a lot of cert petitions come over the summer,s o that conference is long. Um, and one of the, one of the cert petitions for the long conference is Janice vs. American Federation of State, County, and Municipal Employees. So Mark Janice is a child support specialist for the Illinois Department of Healthcare and Family Services. His workplace is unionized. He doesn't want to join the union. He doesn't have to join the union, but he does have to pay a fair share fee. In his case, it's about $600 a year to compensate the union for representing him in collective bargaining. He doesn't have to pay for the unions politicking, except insofar as, uh, one might characterize any negotiation about public sector pay as pollock, as politicking. So his argument is basically money is speech. Compelling me to give money to the union is compelling me to speak in favor of a cause that I oppose and that violates my First Amendment rights. The argument actually makes some sense. The problem is that there's a 1977 decision Abood vs Detroit Board of Education that directly rejects this argument.
Hemel:
So it says, fair share fees do not violate the First Amendment. Uh, so, so, uh, Janice, his argument is overrule Abood versus Detroit Board of Education. Normally, if you're a petitioner and your argument is for the Supreme Court to overrule one of its cases, that's not a terribly compelling argument. Uh, but the Supreme Court granted cert in Friedrichs versus California Teachers, uh, which also teed up this issue in 2015. Uh, and then Justice Scalia died, uh, there was a vote four-four in Friedrichs where the only question was whether to overrule Abood and it doesn't take a crystal ball to predict which four justices voted with the union and which four justices voted against. So I think it's probably a safe bet that Abood will be overruled, uh, and that, um, Janice will win his case. Um, on the topic of betting. Uh, the third case is a case about betting, uh, Christie versus National Collegiate Athletic Association, uh, though it's NCAA et al, and the et al is every professional sports league, major league, national baseball, national basketball association, NFL, NHL. So this is a case about the Professional and Amateur Sports Protection Act of 1992, PASPA. And PASPA says it shall be unlawful for a governmental entity to authorize by law a wagering scheme based on competitive games in which professional or amateur athletes participate. So it actually doesn't outlaw sports gambling. It just says that states and localities can't legalize sports gambling and there's an exception for Nevada. Uh, there was actually an exception for Atlantic City as well if Atlantic City acted during the year 1993, uh, and then Atlantic City didn't act in the year 1993. So New Jersey ship has sailed. New Jersey cannot legalize sports gambling under PASPA. And there's a complicated procedural history here. But in 2014, New Jersey repealed it's decades old ban on sports gambling, uh, and the NCAA and the four major professional sports league sued. And New Jersey argued well insofar as PASPA prohibits state legislatures from repealing state law, it violates the 10th Amendment anti-commandeering doctrine, which says that Congress can't compel state legislatures to pass a law.
Hemel:
Uh, the third circuit ruled for the leagues and against New Jersey. Uh, the Supreme Court granted cert on the merits. New Jersey's argument seems plausible. If Congress can't tell States you must pass a law that banned sports gambling, and most people think that Congress cannot tell the States what laws they must pass, then it also doesn't seem like Congress can pass a law that says you must keep in place laws that ban sports gambling. And in New York versus United States in 1992, Justice O'Connor's majority opinion emphasize that when Congress compels state legislatures to act, it undermines political accountability because voters are confused as to whether they should, uh, attribute the action to state officials or to Congress. And it seems like the same law would apply the same reasoning would apply with the same force to instances in which Congress prohibits state legislatures from changing law. Right? If I support sports gambling, but my state bans it, do I hold my state legislators accountable or do I hold my congressmen accountable? Uh, so, so that's a quick view of the merits. Uh, if we're betting on this, well, the Supreme Court granted cert without a circuit split here, right? That is, uh, that's a good sign for the petitioners. That's a good sign for Christie in New Jersey, a bad sign for the leagues. I think this is an important case because, well, sports gambling, it would be a pretty big deal of sports gambling became legal across the country, or at least if all States had the option of legalizing sports gambling. And the effect of this decision would immediately be to make sports gambling, legal, uh, legal in New Jersey. Um, this is also important because, uh, eight USC 1373 says a state or local government entity may not prohibit any official from sending to the Department of Homeland Security information regarding the immigration status of any individual. Uh, so that is a provision that is actually structured quite different, quite similarly to pass by.
Hemel:
It's telling States, uh, uh, what laws they can and cannot pass. Um, and, uh, the Trump administration has interpreted this to, uh, prevent States from passing sanctuary city laws, right? Uh, laws that prohibit States, uh, that prohibit state or local officials from sending information to DHS regarding the immigration status of any individual. Um, so the sanctuary cities, uh, like Chicago, DC, New York and sanctuary States, California, Colorado, Connecticut, New Mexico will be paying close attention to this decision, uh, because depending on how the opinions written, if it goes new Jersey's way, uh, it may cast out on the constitutionality of eight USC 1373 and suggest that States and cities can create sanctuaries, uh, without, without any federal law preventing them from doing so. Uh, so thanks
Audience:
[applause].
Huq:
So thank you. Um, I have been asked to address three seemingly disparate, uh, cases that arise under the, uh, individual rights portions of the Bill of Rights. These cases involve respectively first, uh, the allegedly excessive injection of partisanship into state redistricting processes, the warrantless acquisition of data sent by cell phones to cell phone towers and held by telecommunications providers and the course of their ordinary business. Um, finally the application of a state's non-discrimination law to a service providers to provide allegedly expressive, uh, services to a same sex couple getting married. Uh, now, uh, these cases involve different parts of the Bill of Rights. The first case involves, uh, the equal protection clause. And perhaps the first, uh, the free speech clause of the First Amendment. The second case involves the privacy protections on the the Fourth Amendment. And the final case certainly involves the first amendment free speech clause, albeit in a different way. And perhaps the religious liberty close off the same First Amendment. So they seem, uh, first blush, very different, uh, cases. Uh, but what I want to argue or, or, or, uh, persuade you off is that in fact, and in they, they reflect similar causes. They are, they emerge, uh, from a similar, uh, uh, underlying etiologies, uh, and present, uh, for the court, a similar kind of a problem. The, the, the, the, the basic problem that the court faces in each of these three cases is analogous or, or somewhat parallel. Uh, very briefly, uh, all of these are cases that arise because of some exogenous shock to the way that government and civil society operate. And none of them can be resolved without the court deciding not just how it draws doctrinal lines, but whether it is in the business of doc drawing doctrinal lines in the first instance.
Huq:
Right. These are not cases, uh, although they might seem as such, that really are about what values or ideals that the Constitution contains and requires. Uh, it's their cases about how the court goes about, uh, finding instruments for the realization of those ideas. Okay. Let me talk a little bit about the causes of the cases. First, the practice of partisan redistricting does not go back to the beginning of our Republic. It goes back even earlier. I did a concert phenomena such as rotten boroughs and so-called pocket borroughs, uh, both of which were banned by the British Parliament in 1832. And the great reformat go back to the Regency and well before gerrymandering is a very familiar phenomena and the injection of partisan ends into gerrymandering is similarly a complex, a familiar phenomena with long historical antecedents. What is new today is the availability of first data app, an extremely granular vota level concerning identities and voting proclivities of specific individuals and algorithmic tools that enable state actors to slice up voting populations, pack them into some districts, disperse them over other districts in ways that minimize the opportunity of partisan opponents to plausibly prevail under any likely electoral scenario. That is, had Moore's law, the law that holds a or that predicts the increase, exponential increase in computing power every year. Had Moore's law not held the problem of partisan redistricting today would look very different.
Huq:
The Supreme Court's consideration of partisan redistricting, this term arises from Wisconsin's recent, uh, redistricting, uh, that redistricting is alleged in the, uh, in the case of, uh, uh, Gill v. Whitford to be among the most extreme partisan, uh, partisanly biased maps in the country. Uh, the allegations in that case and the lawyering in that case was provided. I should note by way of disclosure by one of our colleagues, Nicholas Stephanopoulos, uh, who came up with a measure of partisan bias, uh, the efficiency gap that played a large role in the three judge, district court opinion written by Judge Ken Ripple. If the seventh circuit in which the court found a violation of the equal protection clause and held that partisan redistricting can violate the Constitution where an intent and effect and an absence of alternative explanations has been demonstrated. Similarly, Carpenter versus United States, uh, arises from a technology that changes the quantity of government action in a way that poses a question about whether the nature of government action has also shifted. Carpenter concerns a question that has divided, uh, the circuit courts. Third circuit is on one side, uh, fifth and other circuits are on the other side in respect to the government's acquisition of cell phone, locational data. S-, CSLI under a provision in the stored communications act, the SCA, uh, 18 USC, uh, 27 0-3D, uh, without probable cause. So in the carpenter case, the FBI was investigating a series of armed robberies that occurred across Michigan and Ohio. They identified a Detroit based gang. They obtained orders under section 270-3D uh, to acquire respectively 88 days and 127 days of cell phone locational data concerning the particular cell phones if the defendants in those case that cell phone data allowed the government to demonstrate a correlation between the location of the particular defendants in those cases. And the, uh, commission of this series of armed robberies across, uh, across Michigan and Iowa, uh, and therefore aided the government in, uh, in acquiring or achieving convictions under a number of federal snapshots.
Huq:
The defendants in the carpenter case who are the petitioners in the Supreme court argue that so-called cell phone locational data provides the government with a fine grained portrait of an individual's movements over time, a portrait of movements over time that allows the government to draw inferences about the behavior and the identity and the private preferences of individuals. Um, in more formal dot. Trinal terms though carpenter hinges upon the question of whether there is a constitutionally cognizable privacy interest under the fourth amendment in information that is handed over to a third party. Now, if the locational data example seems trivial to you, consider another example of information that is available to uh, or that can be acquired from third parties. Many of you will have seen the much discussed Kosinski and Wang study out of Harv-, out of Stanford. Excuse me. Recently, uh, Kosinski and Wang take, uh, facial recognition technology of the kind that's used by Facebook. They can join it with a off the shelf machine learning package and they demonstrate that it is possible to predict a person's sexuality whether they are straight or gay, uh, to a substantial degree of certainty. 81%. With respect to men, the, the, the challenge has been, uh, the study has been challenged but the basic intuition that it is possible to take data data that is generated by, generated by and held by third parties and the images that are produced by close second television are certainly examples of a third party data. And to extract from that data information that otherwise would not be publicly available, potentially not be publicly available. As I think quite striking. Uh, it is, it is, uh, obviously a striking and very sobering to think what will happen when, as is surely the case, uh, governments such as the Russian and the Saudi government acquire, uh, an employee facial recognition technology and machine learning and the way that Kosinski and Wang, uh, protect the third case, uh, masterpiece cake shop versus the Colorado civil rights commission, again, terms on an exhaustion, a shock, but what not caused by new technology.
Huq:
It's proximate cause is social change, the convulsive and recently recent dramatic recognition of the legitimacy of a variety of the variety of forms of human sexuality. A recognition that culminated in the Supreme court's decision in Obergefell v Hedges, recognizing and requiring access to marriage by same sex couples. Uh, the masterpiece, uh, uh, cake shop, uh, masterpiece cake shop case, excuse me. Uh, is, is also, uh, uh, a glissade from disputes about the appropriate form of social toleration, uh, uh, disputes about toleration that would have been familiar to the French Huguenots or the English nonconformists. Like many disputes about the social Morrows of toleration. Uh, the Cassius ballet and the masterpiece case is trivial Cana cake shop to client provide a bespoke cake for a gay wedding. Doctrinally. The case turns on whether the Baker is exercising his first amendment protected speech right when he wields his ribbon cutters, extruders and fondant slices and whether doing so would be forced conscription into the celebration of a gay nuptial. Uh, wedding cakes up in a part of, uh, the marriage ceremony. I understand since Roman times, uh, although the cake at that time, apparently it was made of smelt. See, you learned something.
Huq:
So these cases I submit do not turn on whether there is a constitutional interest in the relevant protected private activity. They turn rather on whether and how the court can engage in line drawing rather startlingly. It is in fact common ground among justices that the first and the 14th amendment in each of these cases, I'm the fourth amendment, uh, how, uh, extend some form of protection in Obergefell itself. The majority recognized the good faith, faith based objections to same sex marriage that many, uh, citizens now hold the government's brief in the carpenter case concerning cell phone data does not deny the privacy implications of locational data. I know, cut it. The Supreme court in the 2012 case called Jones recognized the implications under the fourth amendment of locational data in a case about a GPS monitoring. Finally, not withstanding some of the commentary on the issue, uh, the, the Whitford case presents, uh, no real question about whether, uh, excessively partisan gerrymandering itself violates the constitution. Uh, every one of the justices in 2004 and again in 2006 said that it does indeed, there is a subsequent case called Cox . Larios, which is arguably understandable only in terms of a court that views partisan gerrymandering under the right conditions as violative of our constitution. Rather the question before the court in each of these cases is whether and how to draw lines. The problem is most obvious in the wet food case, uh, the wet food plaintiffs must surmount a 2004, a decision of the Supreme Court called Veith v Jubelirer. In the Veith case, a plurality of the court with Justice O'Connor, Justice Scalia, excuse me, writing suggested that the question of partisan gerrymandering presented a political question because it lacked four judicially manageable standards. There is a concurrence by Justice Kennedy that suggests that he would not go so far upon which the plaintiffs predictably rely.
Huq:
Uh, Professor Stephanopoulos, along with his colleague Eric McGhee, purport to address the, the, this problem of judicially manageable standards through their, uh, efficiency gap measure and the cases ruffle resolution will turn on how the court managers the rather unmanageable idea of a judicially manageable standard, something that you only know when you see it. Uh, and also whether the plaintiffs can persuade the justices that there is a doctrinal formulation that would generate a sufficiently safe Harbor for States engaged in redistricting. Such stat, uh, that part of the political process can proceed without intrusive judicial superintendents. The analogy here might be the one person, one vote rule, uh, that emerged from cases like Reynolds and Westbury, uh, in the late 1960s. And that at the time was also understood as a prophylactic rule against excessive partisan redistricting. Similarly, co carpenter requires that the court define the universe of material that is held by third parties that is protected by the fourth amendment.
Huq:
Now there again, there is an argument in currency that that universe is a null set a, this is false. Consider the 1967 case of Katz versus United States. Katz holds that you have a protected privacy and trust in your telephone, but the content of your telephone conversations, which is what cats protect are readily available and were readily available to telecommunications providers. They are just as much data held by third party asks the cell tower information, uh, at issue in carpenter. On the other hand, it is extremely unappetizing from the court's perspective to imagine a world in which the in which the government needs probable cause every time it obtains any kind of data about a person from a third party. One way to think about this is to observe that whenever the government would obtain either financial or telecommunications records under such a regime, it would be faced with what's what's called an empty commons problem, right? Imagine that it has to obtain, imagine that it wants to obtain, say, a thousand telephone records. It would then have to refer, identify and reverse engineer and obtain a individualized probable cause for each person or entity for whom those records, uh, obtain, right? That that doesn't look like a workable rule. So the court has to draw some line in between permissible and impermissible, uh, applications of the third party doctrine. The line drawing problem in masterpiece is a little different. It's a problem of how to categorize. The court has to begin its consideration of masterpiece by deciding how to treat the Baker's act. Does it use a general transactional frame and say that what, what, what the Colorado law is doing is regulating the provision of professional services that doesn't look as if it's a first amendment protected activity or does it use a granular transactional frame and say that what's at issue here is writing messages with icing on cakes that looks a little bit more first amendment protected.
Huq:
Also, my wife tells me, um, this sort of threshold character categorization, the sort of delineation of the transactional frame is a line drawing exercise that almost always precedes the operation of the standard dot Trinal articulations in constitutional law. And because it proceeds those, those doctrinal applications, because it is ungoverned by doctrine, it is almost always the place where the most normatively freighted work occurs. And there is no reason to expect the masterpiece case to be any exception. Um, the line drawing problem also explains why the religion clause element of masterpiece is likely to drop out, uh, where the court to recognize an exception to, uh, the Colorado civil rights statute for religiously motivated behavior. It would decide have to decide when and how individuals have exceptions immunities from generally applicable laws. And that's the court in a case called Employment Division v Smith and in 1990 recognized that lion throwing exercise is an extremely demanding one. Thank you.
Audience:
[applause]
Host:
Thank you Adam. Daniel and Aziz, I'm happy to open the floor to questions.
Audience:
You just observe that math involves a, since you just observed that masterpiece evolves in your view anyway, uh, the most likely place where courts and probably this court engage in normative line drawing. Where do you think they'll draw it?
Huq:
I think that given, uh, given the nature of the underlying expressive activity, the most likely outcome, uh, F the masterpiece case is a five vote session in which the court starts by saying that what is an issue here is an expressive service which they describe as the articulation of messages on a cake. Uh, and, uh, uh, they will then apply the, uh, the traditional first amendment free speech framework for content neutral, uh, rules cause the Colorado statute is formally content neutral. And I, I would expect them to hold it, that as supplied the Colorado statute cannot be used to regulate the, uh, the act, the activities of the Baker. In this instance. Now there's, there's kind of a tricky factual wrinkle in the case. Apparently the gay couple who asked for the cake when Tim to the shop said we're getting married, we'd love you to do a cake for us. And the guy said no before he knew what the cake was going to say. Right. So, so the refusal on the facts of the case was not actually based upon the expressive comp content of the case. I one can imagine messages on wedding cakes but are orthogonal to the act of marriage itself. Right. And so one one, and so the court will have to figure out probably by ignoring, uh, how to deal with that, uh, unfortunate factual wrinkles.
Audience:
But then how does that translate into, in terms of the cases we already see, um, floral arrangements and photographs? Yes.
Huq:
I think that the, the subsequent cases will, will it, so it's not, it's not the path that I described. It's not the only that the court could take to find for masterpiece. I think it's the most likely one. I think that if they take the path that I describe, then the question moving forward will be when is the provision of a service sufficiently expressive to count for first amendment purposes to, to, to obtain a first amendment immunity. Now, um, that's going to arise and the fluoro amendment cases it's going to arise and the wedding planning cases, um, but more generally I see no reason. Once you start to recognize that certain provision, the provision of certain kinds of professional services is expressive and quality, that it is only antidiscrimination laws that would be impinged upon. So for example, I'm sure that many people in this room deal with security slows, uh, and the way that the securities laws regulate the statements and information that can be provided by analysts. Why isn't the inflammation that analysts and the views that analysts provide expressive as a matter of first amendment doctrine such that the, their regulation is just as problematic as the masterpiece cakes baker's problem. Right. So I if you, if you're, if you're saying yes, that's a look, that's the series of other things that, that other cases that the court would then have to deal with or the lower courts would then have to deal with. Uh, you know, I agree and you know, I, I match your bid by pointing to all sorts of other cases that arise outside of this immediate contact where I think where I think you could see these stabilizing um, uh, implications from this decision.
Audience:
Oh yes, for sure. This question, they called her out. We had an opportunity to read this in the case.
Audience:
I, I have skimmed that. Yeah. Well, let me, let me just tell you what it says and I'd like your views. The Solicitor General takes the position he sides with the bakery, takes the position that the cake make. Baking this custom made cake is a form of expression, freedom of speech. And therefore compelled speech and therefore protected by the first amendment. And he distinguishes that case from a situation in which the married couple went to a hotel and asked for a ballroom, said that does not involve any free expression or limousine. Yup, yup. Kay said that doesn't dwell free expression. Yeah. And he also says that, uh, he does not deal with the freedom of religion. He, yes. Footnotes that gets away from that. I want to suggest to you that if the Solicitor General's position is accepted, you accept this, you're opening the door wide to all kinds of discrimination against gay people because take the person who makes up a wedding agreement, that's a form of expression or take the who makes a take, the person who makes eight, eight a a wedding gown, that's a form of artistic expression and pretty soon you will have widespread discrimination against gay people. And the, the statute which provides for no discrimination is going to be gutted.
Huq:
So I think the best way to think about your, I think the point that you make is precisely correct. And I think that the most useful way to think about that your point is by noticing that some of the earlier cases upon which the government's brief and the masterpiece cake brief rely in fault instances, not where somebody is engaging in an action that's expressive, but where there's some kind of a coming together of individuals that is taken to be expressive. So there are, these are cases like Hurley, which involve the involve the participation of, of gay and lesbians in Boston's, uh, some Patrick's day parade, uh, their cases like boy Scouts be Dale where the issue is whether the boy Scouts are subject to new Jersey's antidiscrimination laws because they exclude gay Scoutmasters, right? These are cases with, uh, where the claim about first amendment entitlement Springs, not from the expressive quality of an action, but from the expressive quality of an association. So I, I'm just, I'm, I'm pushing forward on you on the point that you're making, right? If it's true that that association just as much as action can be expressive, then why is it the fact that I rent out my hotel, a ballroom to a gay couple, an impermissible forced association that should be invalid under Hurley and Dale? Same for the same, for the same, for the, uh, for the, uh, for the example of the limousine service. Right. So I, the, the, the, I, I think that this is an example of the, of the, uh, both the, the amorphous and the, the, the difficult to cabin boundaries of expressive conduct. But that's a line drawing problem that the court has known about since O'Brien. Um, but it's one that I think inevitably arises once the court starts to go down this particular road where the expressive conduct category is partly being driven, that the motor behind it is a religious claim and religious claims are awfully difficult to cabin because the courts don't want to be in the business of ascertaining or making judgments about when a religious claim is, uh, is sincere or valid according to the tenants of the religion.
Host:
Other, other questions? Yes.
Audience:
Thank you so much for everything that we've heard today. And talking about the immigration, uh, cases that are coming up. One thing that occurred to me while I was listening to your presentation is that the accent that seemed to have brought about the plenary power concept, we're all congressional acts. Where's the travel ban case deals with an executive order? Is there any possibility that the court's going to find that to be at all significant? Or is that something that's been sort of dealt with over the years?
Chilton:
Uh, so the plenary power doctrine, uh, as I mentioned at the start, uh, it's an amorphous set of doctrines where the exact boundaries are not perfectly clear, but it has been used to justify both congressional power, uh, to specifically put into the immigration statutes distinctions based on gender, um, uh, legitimacy of children, uh, uh, nationality, et cetera, but also to justify congressional, excuse me, uh, executive branch action. So, um, the case that's most relevant for the travel ban litigation is a case called a client's fee. Mendell, which was a case where, uh, a Belgian communist was trying to come to visit the United States to give lectures at a series of universities. Uh, and he was denied a visa because at the time you could, uh, the, the, there's a number of places and the immigration law will to this day that, uh, include bars based on, uh, political beliefs. So communists could be kept out, right. And so, uh, the argument at the time is that this is a first amendment violation that the, uh, is that someone's being denied in this way based on their beliefs. Uh, and this was justified and it as long as the languages, as long as there's the, uh, bonafide and facially legitimate reason for at the time of the attorney general to exercise this power in this way, at that, uh, that the courts wouldn't look into it. Now, in this case, uh, president Trump has part of the ina that gives a national security exception, uh, to block aliens or classes of aliens that are, uh, that the president finds to be a national security risk. So in the same way that the attorney general, uh, in Mendell could keep out a Belgian communist, uh, at least. So the argument goes that the executive may have the president, the plenary power in this in the same way. So although typically given to, uh, we refer to plenary power by being about Congress, it's also, uh, been used to defend executive action as well
Audience:
Over here. This is for a Professor Hemel. How unusual is it for an agency to have to defend itself in front of the Supreme court as the NLRB is having to do with Murphy oil?
Hemel:
Uh, unusual but not unheard of. Um, there were, I think several points during the Reagan administration when similar things happened. Um, as these mentions, uh, Bob Jones versus the United States, uh, where the SG changed its position, um, during litigation on whether Bob Jones university could have tax exempt status. Uh, and in that case, the Supreme court ended up appointing, uh, bill Coleman, the former Ford secretary of housing to argue the position that the Carter administration had been taking. Uh, and the Supreme court actually ultimately sided with Coleman's position. Uh, this also has up in litigation about, uh, the independent counsel statute, uh, where the independent counsel is a, is a federal official and a federal inferior officer. In fact, uh, and has been litigating against, uh, the SG. Um, the, uh, SG in reversing its position also said that it would allow the NLRB to defend itself. Uh, so I guess the SG could've gone a step further. Uh, the NLRB does not, I believe, have independent litigating authority at the Supreme court, but, um, the SG allowed the NLRB to continue to maintain its position. And I don't think that we can infer from these past cases anything structural about how government versus government litigation affects the probability of one side or the other winning.
Host:
It's time for one more.
Audience:
One of the, of course, intriguing questions in the travel ban cases. What, uh, is the court to make of outside statements by the president and whether you look only at the words of the executive order to order or what he said before election or after inauguration, there were, as you know, tweets just this week, uh, about the ban. And I'm interested in anyone who has a view on what the court might do with those statements.
Chilton:
So, uh, that is, uh, yeah, a lot of what makes this case unique. Uh, so as I was saying just a second ago that the, uh, the relevant language that, uh, about the scope and the limit of the presidential powers, this language for Mendell about whether or not there's a bonafide and facially legitimate reason. Uh, if that's true, then the court, uh, will defer to the executive branch. So a lot of the arguments in this case is whether or not the actual reason behind the travel ban is a animosity towards Muslims and whether or not we should take Trump's statements from the campaign, the statements of Trump advisers, uh, uh, members of the, and then who then became members of the administration, uh, or whether or not, if there's any reason that might exist for national security rounds for the travel band, then that that should, uh, that should be, uh, what the court goes with. I think that the court isn't actually going to get to, uh, get to look at these statements. Um, and won't go that far, but, uh, but I think that is what makes this case unique and might distinguish this case from Mendell wherein, um, although the, uh, the administration might have then had very little reason for blocking this particular speaker. Uh, but at least there wasn't, um, quite the same level of, uh, statements on the record in public that, uh, seemed to reveal the true, true motivation. [inaudible]. So
Huq:
I have a, I have a slightly different take and I, I should confess a bias or a potty pretty because I, I'm, I've been counsel in a number of the challenges, one challenge, uh, to the travel ban and, um, uh, have written an Amicus brief before the court. Uh, the brief, um, actually addresses this point. Um, it's on behalf of a number of social science scholars at, uh, Columbia, Yale and Princeton who study a slot and who study the reception of Islam and, uh, Europe and the United States. Uh, and the brief focuses upon, uh, the reference in both the Fest and executive order to something called honor killings. Uh, a reference that's, uh, not obviously related to anything else that is in, uh, uh, uh, that, that, that pertains to the policy reasons for which the bam Paul certainly promulgated in the first instance. Uh, and the brief argues that, uh, in current political discourse, the, the term honor killings is employed as a kind of codeword or a dog whistle, uh, much as the terms, uh, ghetto thug or, uh, customer policy and finance CA are employed in current political discourse, uh, us dog whistles to convey and reinforce certain kinds of, uh, negative stereotypes about protected classes. Uh, so the brief, the brief takes the position which I, I personally, but not, not in my university of Chicago capacity think is correct that these are both orders that on their face failed, uh, the Kleindienst V Mount bell task of being facially legitimate and [inaudible]. Both of them, uh, to the contrary contain evidence of impermissible constitutional motivation.
Hemel:
Uh, I'll add that the, the facially legitimate and bonafide standard, uh, is, is at war with itself. Bonafide is good faith. Good faith is when your public facing rationale differs from your private rationale. So there's no way to assess bonafide by looking only at the face of the proclamation. Right. So it almost seems like you, you've got to look at the private rationale. One thing that is unusual about the Trump administration is usually you have to look hard for the private project, right? It is not just tweeted out or you know, uh, spoken loudly at DLT state.
Host:
Well, with that, I want to thank our panel and I'll just add there were more questions. Wait, it's time to get to these. Our panelists will remain. If you have questions, please come up. There'll be very happy to, to answer them. Please join me in thanking our panelists. Thank you all for coming.
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