My new Learn Liberty article on the constitutional rights of non-citizens

The Institute for Humane Studies Learn Liberty website has posted my new article on “The Constitutional Rights of Non-Citizens.” Here is an excerpt:

Noncitizens undeniably have a wide range of rights under the Constitution. Indeed, within the borders of the United States, they have most of the same rights as citizens do, and longstanding Supreme Court precedent bans most state laws discriminating against noncitizens. There is little if any serious controversy among experts over this matter.

The more controversial issue is whether the Constitution provides any protection for noncitizens outside US borders, particularly in regard to immigration issues….

The Constitution reserves a few rights for citizens alone. Most notably, the Privileges and Immunities Clause of Article IV, Section 2, and the Privileges or Immunities Clause of the Fourteenth Amendment both protect the “privileges” and “immunities” of US citizens against various types of interference by state governments….

That a few constitutional rights may be specifically reserved to citizens underscores the broader principle that the vast majority are not. There would be no need to specify such a reservation if the Constitution had a default rule limiting rights to citizens.

In reality, the vast majority of rights outlined in the Constitution are phrased as general limitations on government power, not special protections for a specific class of people — be they citizens or some other group….

By far, the biggest exception to the courts’ generally favorable attitude toward extending constitutional rights to noncitizens is the so-called “plenary power” doctrine, which gives the federal government broad power to adopt otherwise unconstitutional policies in its treatment of aliens, when it comes to immigration policy….

Since the late 19th century, the doctrine has been understood as giving Congress very broad power to authorize the exclusion of aliens for almost any reason, including many rationales that would be forbidden in virtually any other context.

The plenary power doctrine has no basis in the text or original meaning of the Constitution. With a few exceptions noted above, none of the rights protected by the Constitution are textually limited to citizens. And none include a blanket exception for immigration cases.

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How old must you be to be ‘ancient’?

If you’re a document that someone is trying to exclude under the federal hearsay rule, the answer is 20 years:

[Rule 803:] The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: …

(16) A statement in a document that is at least 20 years old and whose authenticity is established.

But wait: That’s likely to change, to a firm cutoff of 1997 or earlier, though I expect that this cutoff will change with future rules changes.

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The Jefferson Muzzles 2017 for ‘egregious and or ridiculous affronts to free expression’

The Thomas Jefferson Center (with which I’m involved as a member of the board of trustees) has just released its yearly Jefferson Muzzles. You can see the details here, but here’s a summary of the awards (not all are First Amendment violations as such, but all were judged by the center to be improper or excessive reactions to people’s expression):

  1. The state government of Illinois for prohibiting donations from medical marijuana businesses to political campaigns or political action committees, and prohibiting candidates from receiving such donations.
  2. The California Legislature and Gov. Jerry Brown for passing a law banning online employment databases from listing the ages of actors and actresses.
  3. Bradley County (Tenn.) Sheriff Eric Watson for deleting comments by atheists and blocking atheist commentators from the county Facebook page.
  4. Collier County (Fla.) School District for a policy requiring students who elect not to stand for the national anthem to first obtain parental consent.
  5. The U.S. Olympic Committee for excessively protecting its trademarks by trying to prohibit non-sponsors of the Games from tweeting about the Olympics, posting pictures or using related hashtags.
  6. The U.S. Senate for unanimously passing a bill targeting speech on college campuses. The bill would change the definition of prohibited “anti-Semitism” to one that is so broad that it essentially would apply to any speech critical of Israel or its policies.
  7. Boca Raton Community High School administration (Palm Beach County, Fla.) for giving senior Maxine Yeakle the choice of removing her “Hilary for Prison” T-shirt or serving an in-school suspension.
  8. Cumberland County (N.C.) School Superintendent Frank Till Jr. for suspending and ultimately dismissing a teacher for stepping on an American flag to illustrate the protections of the First Amendment.
  9. Pierce College administration/the Los Angeles Community College District for not allowing a student to hand out Spanish-language copies of the U.S. Constitution outside of the college’s tiny (.003 percent of the campus) designated “free speech zone.”

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The court decision against Trump’s sanctuary cities order is not “much ado about nothing”

Most observers perceive yesterday’s federal court ruling against Donald Trump’s executive order targeting sanctuary cities as a significant setback for the administration, at the ands of Santa Clara and San Francisco, the cities that filed the case. Trump himself seems to agree, judging by his fulminations against it. But a few commentators, such as Ilya Shapiro and David French, claim that the decision is insignificant – even that it is “much ado about nothing” (Shapiro) or “mostly meaningless” (French).

Their key point is that Judge William Orrick’s ruling still permits Trump to do all the things that would be authorized by the administration’s lawyers’ ultra-narrow interpretation of the order: withhold grants that have previously been conditioned on state and local government compliance with federal immigration laws and enforce 8 USC Section 1373 (a statute forbidding states and localities from instruction their officials to withhold information on citizenship status from the feds) by “lawful” means. On this view, the ruling makes little difference because it does not prevent the administration from doing any of the things it wanted to use the order to accomplish.

This theory has several major flaws. Most obviously, it ignores the fact that the actual text of the order goes far beyond the absurdly minimalistic gloss put on it by administration lawyers as a litigation tactic. As Judge Orrick explains at length in his opinion, the order’s language applies to all federal grants, not just those that were specifically conditioned by Congress on compliance with Section 1373 or other federal mandates related to immigration policy. It makes little sense to interpret the order in a way that renders it “meaningless” (as French put it) or “toothless” (in Judge’s Orrick’s description). In interpreting laws and executive orders, the standard judicial practice is to avoid interpretations that would render them utterly ineffectual and superfluous. Judge Orrick also notes that Trump’s and Attorney General Jeff Sessions’ sweeping statements about what the order is intended to do cut against the minimalistic interpretation.

The interpretation advanced by the administration’s litigators and endorsed by Shapiro and French is also inconsistent with the administration’s angry reaction to the ruling. White House Chief of Staff Reince Priebus called the decision “bananas” and promised that the administration would appeal it. Trump has railed against it on Twitter and promised to fight the issue all the way to the Supreme Court. This is not the reaction of people who have already gotten everything they wanted from yesterday’s decision. If Judge Orrick’s ruling allows them to do all that the order was supposed to do anyway, there would be no point to any appeal. Trump could then just declare victory and end the litigation.

French and Shapiro also point to the provision in Trump’s order that indicates funds can only be withheld “to the extent consistent with law.” This could be interpreted as forswearing any withholding that violates constitutional constraints, including the requirement that grant conditions be authorized by Congress. But, as Judge Orrick explained, this interpretation would make the order utterly ineffectual and toothless. It would not authorize the withholding of any funds that could not be withheld anyway. A more plausible interpretation of the order is that it assumes that, under existing law, there is some significant class of federal grants that could be withheld by executive order even if Congress did not authorize the conditions the executive wants to impose.

Imagine that Trump issued an executive order authorizing the Justice Department to suppress publications critical of the president, but only “to the extent consistent with law.” Such an order would surely be unconstitutional, despite the fact that defenders could argue that it really doesn’t authorize any censorship because all such action is banned by the First Amendment. The hypothetical censorship order makes no sense unless it is premised on the assumption that the administration could engage in viewpoint-based censorship of critics in at least some cases. The same point applies to the sanctuary cities order and its mandate to withhold federal funds from targeted jurisdictions.

Yesterday’s ruling creates problems for the administration even if the position advanced by the administration’s litigation team is correct. They argued that the administration could use the order to withhold grants available under three small law enforcement programs, from jurisdictions that do not comply with Section 1373. The lawyers contend that these grants are conditioned on compliance with Section 1373 under existing law. But Judge Orrick’s decision emphasizes that the president cannot impose spending conditions that were “not provided for by Congress.” And none of the authorizing statutes for the three programs mention Section 1373 as a grant condition imposed on recipients. The fact – much trumpeted by administration supporters – that the Obama Justice Department once sent a letter indicating that Section 1373 is an “applicable federal law” for these programs is constitutionally irrelevant. The Obama Justice Department can no more impose grant conditions not authorized by Congress than Trump can. Under Judge Orrick’s ruling, therefore, the administration may find it hard to withhold funds even under these three programs.

Finally, yesterday’s ruling is likely to have important effects that go beyond strictly legal considerations. Uncertainty over the scope of the order has led at least some sanctuary jurisdictions to cave in to Trump, for fear of losing large amounts of funding. Miami-Dade is the most notable example. If yesterday’s ruling holds, sanctuary jurisdictions will no longer have much reason for fear. They need not worry about losing any funds that were not specifically conditioned by Congress on compliance with Section 1373, and such congressional conditions are largely nonexistent. Trump’s threats to withhold funding through unilateral executive action would be exposed as a paper tiger.

Ultimately, yesterday’s ruling served a valuable function even if all it did was force the administration to clarify the ultra-narrow scope of the order, and admit that it is largely toothless. Even if that interpretation of the order is right, it is still important that the cases brought by San Francisco and Santa Clara led the administration to make that clear.

This decision is not the end of the legal battle over Trump’s sanctuary cities order. But if it holds on appeal, the lawsuit brought by Santa Clara and San Francisco will stand as an important example of what liberals can do to help make constitutional federalism great again in the Trump era. In the long run, strong enforcement of constitutional limits on federal power can benefit people across the political spectrum and help mitigate the partisan hatred that is poisoning American politics.

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Will the Supreme Court agree to hear the Fourth Amendment cell-site cases? (And should they?)

As John Elwood noted recently at SCOTUSblog, the Supreme Court has relisted a set of pending cert petitions on whether the Fourth Amendment protects historical cell-site data. The relisting means that the justices didn’t turn down the petitions at the usual time. They are holding the petitions, deferring a decision on whether to grant them. That’s usually a sign of some interest at the court. How much interest there is, we don’t yet know.

I have mixed views on whether the court should take these cases. On one hand, there’s no split. Every circuit court and state supreme court to rule on the issue has ruled that the Fourth Amendment does not protect historical cell-site data. The cert petitions claim a circuit split with the U.S. Court of Appeals for the 3rd Circuit, but I don’t think that’s right. The 3rd Circuit merely speculated about the possibility of Fourth Amendment protection in the course of making a statutory ruling.

A clear split would be helpful in this kind of case because once you say that historical cell-site data can be protected, you then get to the really hard issue of when it is protected. Is it always protected? Is it protected only in some aggregate fashion under a mosaic theory? Does the resolution of the location data in the records make a difference? Is there a warrant requirement? What is the particularity of a cell-site warrant? There are no obvious answers to those questions. It might help the justices in a future Supreme Court decision to have the benefit of circuit court rulings trying to answer those questions.

On the other hand, there’s a plausible argument that the court should take the cases now without a split. That argument can draw on several different points. First, whether the Fourth Amendment protects historical cell site data is a hugely important question. The Supreme Court should step in and rule on it an some point. Second, while there is no split, there are certainly lots of opinions on the other side. Most obviously, there were 4th Circuit and 11th Circuit panel decisions, both later overturned en banc, that could provide the food for thought on the other side (even if rather unusual food for thought) that a split would ordinarily help provide.

Third, this issue is coming up so often, in almost every state and circuit, that a split is likely to emerge eventually. Fourth, the technology seems relatively stable, permitting the justices to weigh the need for equilibrium-adjustment. And fifth, the Davis good faith exception would apply down the road where a circuit has already ruled, which may counsel toward granting cert sooner to ensure that there are real stakes in the litigation when the Supreme Court decides it.

Of course, as a Fourth Amendment nerd I think it would be great if the court took these cases. The more Fourth Amendment cases on the docket, the better! As for whether they will, stay tuned as always.

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Lewis v. Clarke, the Supreme Court’s decision from yesterday

Looking at yesterday’s tribal sovereign immunity case, Lewis v. Clarke, I didn’t really notice — until reader Robert Dittmer pointed out — that the case was called Lewis v. Clarke. What other cases like that can you point to, whether from the Supreme Court or other courts? Please include a link to the opinion.

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Federal court rules against Trump’s executive order targeting sanctuary cities

A woman holds a sign at a San Francisco rally supporting sanctuary cities.

Earlier today, federal district court Judge William Orrick issued a ruling blocking enforcement of President Trump’s executive order seeking to cut federal funding to “sanctuary cities” – jurisdictions that refuse to help the federal government apprehend and deport undocumented immigrants. The order seeks to deny federal grants to sanctuary cities, especially those that do not comply with U.S.C. Section 1373, which forbids states and localities from ordering their officials to refuse to turn over information about the immigration status of individuals within their jurisdiction. The cities of San Francisco and Santa Clara filed lawsuits challenging the order’s constitutionality, and today’s decision addresses their claims.

Judge Orrick’s ruling concludes that the order violates the Constitution because it undermines both federalism and separation of powers. It follows nearly the exact same reasoning I laid out in my post criticizing the order when Trump first issued it.

With respect to separation of powers, the court emphasizes that only Congress can impose conditions on federal funds. The the president cannot do so on his own:

Where Congress has failed to give the President discretion in allocating funds, the President has no constitutional authority to withhold such funds and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so….

Section 9 purports to give the Attorney General and the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not provided for by Congress. But the President does not have the power to place conditions on federal funds and so cannot delegate this power.

In this case, none of the federal grants given to sanctuary cities were conditioned by Congress on compliance with Section 1373 or any other form of cooperation with federal efforts to deport undocumented immigrants. The president cannot impose such conditions on his own.

In addition, the order undermines constitutional federalism because it violates longstanding constitutional constraints that limit conditions imposed on federal grants to state governments even when those conditions are authorized by Congress:

While Congress has significant authority to encourage [state] policy through its spending power, the Supreme Court has articulated a number of limitations to the conditions Congress can place on federal funds. The Executive Order likely violates at least three of these restrictions: (1) conditions must be unambiguous and cannot be imposed after funds have already been accepted; (2) there must be a nexus between the federal funds at issue and the federal program’s purpose; and (3) the financial inducement cannot be coercive….

The Executive Order purports to retroactively condition all “federal grants” on compliance with Section 1373. As this condition was not an unambiguous condition that the states and local jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it cannot be imposed now by the Order.

Later in the opinion, Judge Orrick explains why many of the grants that might be withheld by the order lack a sufficient “nexus” with immigration enforcement (for example, a variety of grants with no connection to law enforcement or immigration). He also explains that if the administration withholds the full range of grants potentially covered by the order and referenced in statements by administration officials, such withholding would be “coercive” under NFIB v. Sebelius (2012), the ruling striking down the Obamacare Medicaid expansion. I discussed this issue in greater detail here.

The opinion also concludes that the executive order likely constitutes unconstitutional “commandeering” because it coerces state and local governments to enforce federal law, in violation of several Supreme Court precedents under the Tenth Amendment. Some defenders of the Trump order have argued that there is no commandeering problem here because the anti-commandeering principle does not apply to federal efforts to compel disclosure of information. I criticized this argument here.

Judge Orrick further concludes that the executive order is likely unconstitutional because it is “void for vagueness” (it is unclear about exactly what funds are covered by it) and because it violates the affected jurisdictions’ rights to procedural due process under the Fifth Amendment.

Interestingly, as the opinion explains, the federal government’s lawyers barely even contested most of the plaintiffs’ federalism and separation of powers arguments. Instead, they argued that the order should be upheld based on an implausibly narrow interpretation of its scope, under which it would only seek to enforce conditions previously mandated by Congress and otherwise ensure compliance with preexisting federal law in ways that were previously authorized. As Judge Orrick carefully explains, this theory contradicts the plain text of the order, and also numerous statements by administration officials explaining its purpose, including some by Attorney General Jeff Sessions:

While the Government urges that the Order “does not purport to give the Secretary [of Homeland Security] or Attorney General the unilateral authority” to impose new conditions on federal grants, that is exactly what the Order purports to do. It directs the Attorney General and the Secretary to ensure that “sanctuary jurisdictions” are “not eligible to receive” federal grants…

The Government attempts to read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat. It urges that Section 9(a) can be saved by reading the defunding provision narrowly and “consistent with law,” so that all it does is direct the Attorney General and Secretary to enforce existing grant conditions. But this interpretation is in conflict with the Order’s express language and is plainly not what the Order says. The defunding provision is entirely inconsistent with law in its stated purpose and directives because it instructs the Attorney General and the Secretary to do something that only Congress has the authority to do–place new conditions on federal funds.

For reasons I explained in previous posts on this issue, today’s ruling is an important victory for both federalism and separation of powers. If the president could impose new conditions on federal grants after the fact, he would have a powerful club with which to coerce states and localities on a wide range of issues. Some conservative Republicans may not like the outcome of this specific case. But they will have reason to celebrate it the next time a liberal Democratic president tries a similar move.

Technically, this ruling is not a final decision on the merits, but only a ruling granting a preliminary injunction blocking enforcement of the order. But Judge Orrick leaves little doubt which way the final decision is likely to go.
Both today’s ruling and any final decision might well be appealed. But it will be an uphill struggle for the Trump administration, as even its own lawyers seem to recognize, given their desperate attempt to save the order by giving it an implausibly narrow interpretation.

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