Month: July 2019

Most discussions about originalism and stare decisis are SCOTUS-focused. That is, the Supreme Court established some non-originalist precedent in the past, and now the Justices are considering whether to reverse that precedent. However, scholars seldom discuss how lower-court judges–such as Circuit Court Judges or State Supreme Court Justices–should balance originalism and stare decisis.

My new essay, Originalism and Stare Decisis in the Lower Courts, opens up that discussion.

Here is the abstract:

The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court’s unique status, which is perched atop our judiciary, affords its members leeway to make either decision.

Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare.

An originalist circuit judge would only have free jurisprudential reign in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process.

In short, it’s tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.

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Prepare to be outraged: A white male shopper at a grocery store in Cobb County, Georgia, told Erica Thomas, a pregnant black woman and state legislator, to go back to where she came from. His verbal assault echoed the racist remarks of President Trump. “People need to see the hate that is going on in this country,” a tearful Thomas told her Facebook followers in a heart-wrenching video.

Are you angry yet? Well, you were fooled. The above account was one-sided and misleading, and now even Thomas has suggested that she can’t actually recall if the man, Eric Sparkes, literally told her to go back to where she came from, or merely said other unpleasant things. Moreover, Sparkes claims he is a Cuban and an anti-Trump Democrat. This was more than enough new information for some people to file this incident under hate hoaxes and consign Thomas to the status of a Jussie Smollett or Nathan Phillips (whose sins were far greater).

Having read this new information, maybe you’re now outraged about having been driven to outrage in the first place. For that you should direct your ire to local media outlet WSB-TV, which hauled Thomas back to the grocery store over the weekend to film a segment about the episode, and also at The New York Times, which for some reason decided that what is ultimately a trivial argument between two stressed-out shoppers should be turned into a national news story. The Times‘s initial headline, “‘Go Back to Where You Came From,’ Georgia Lawmaker Says She Was Told,” was of course specifically designed to spin this story as an outgrowth of Trump’s poisonous rhetoric. The new headline, “‘The Hate Is Real’: Black Georgia Lawmaker Says She Was Berated at Supermarket,” tries to achieve the same, while tacitly conceding that there’s uncertainty over the back-to-where-you-came-from language.

Here’s the de-sensationalized version of events: Thomas and Sparkes agree that she had opted to use the express checkout option, even though she had more groceries than the line allows. This irked Sparkes, despite the fact that two other lanes were open and available. He snitched on Sparkes to customer service and was informed that company policy forbade the store from doing anything about it, but that Sparkes could take matters into his own hands if he wished. Ultimately, Sparkes approached Thomas, and the two had words. Which words, precisely, is up for debate.

“This woman, Ms. Thomas, is playing the victim,” Sparkes told WSB TV, telling his side of the story. “I am a Democrat, I vote Democrat party line. All my statements are anti-Trump, anti-Republican, anti-bigotry.”

Sparkes utterly denied that there was anything racially tinged about his comments to Thomas. His strong denial, political affiliation, and the fact that Thomas backtracked slightly are being treated as conclusive evidence by Team Hoax. Of course, it’s easy to go too far in this direction. Sparkes admits, for instance, that he called Thomas “lazy”and a “bitch.” Maybe his comments weren’t racist, but if you’re calling a pregnant lady a lazy bitch, you aren’t exactly the good guy, and it would be a stretch to label your conduct as non-hateful. Perhaps this is a sign of our incredibly politicized times: an accusation of racism must be rebutted at all costs, while mundane cruelty, seemingly tinged with sexism, is considered above board.

In truth, both Thomas and Sparkes seemed like they behaved obnoxiously. Sparkes should have minded his own business, especially given his admission that Thomas’s abuse of the express checkout lane didn’t even inconvenience him—there were other lanes. But Thomas quite clearly chose to escalate—and publicize—the incident, injecting it with political urgency and slotting it into a national narrative the media would find too tempting to ignore.

Thus a minor, trivial encounter between two stressed shoppers—a story so old that it is not actually a story—was transformed into a viral social media moment, and then served up to outrage-hungry readers by national news media. I hope everybody is good and mad.

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It holds true that the only thing pretty much everyone in Congress and the White House can agree on is to spend more money.

The White House and Congress are closing in on a deal to hike spending and postpone a battle over the debt limit until July 2021—eight months after the next presidential election. The agreement includes a paltry $75 billion in budgetary offsets, Bloomberg reports. Though a final deal has not yet been reached, the plan is for Congress to pass the new budget before July 26, when lawmakers will begin a six-week summer recess.

The proposed plan will increase current spending caps by $320 billion over the next two years, with the spending hikes equally split between domestic programs and the military. Depending on the details, the budget could add as much as $2 trillion to the national debt over the next decade, according to the Committee for a Responsible Federal Budget (CRFB), a nonpartisan groups that favors balanced budgets.

In a statement, the CRFB said the budget deal “may be the worst in history,” given the country’s current precarious fiscal condition.

“Members of Congress should cancel their summer recess and return to the negotiating table for a better deal. If they don’t, those who support this deal should hang their heads in total shame as they bolt town,” says Maya MacGuineas, president of the CRFB. “This deal would amount to nothing short of fiscal sabotage.”

If President Donald Trump signs the deal into law, he will have authorized a 22 percent increase in federal discretionary spending during his first term in office—having signed a March 2018 budget deal that similarly jacked up both domestic and military spending.

It’s apparent at this point that there is virtually no political coalition in Washington, D.C., genuinely interested in reducing spending and bringing the national debt under control. Democrats are largely a lost cause when it comes to fiscal responsibility, while Republicans—with few exceptions—are little better, having abandoned decades of lip service to the benefits of smaller government.

We’re not even a decade removed from the moment when every major Republican candidate for president said they would rejecta budget deal that included $1 in tax increases for every $10 in budget cuts. Now, the modus operandi of the GOP is to ignore the threat of what near-record debt levels will do to economic growth in the coming decades. Our Republican president says he doesn’t have to worry about the coming debt crisis because he “won’t be here” when it happens, and conservative talking heads that once blasted President Barack Obama for soaring levels of national debt now argue, as Rush Limbaugh did last week, that “all this talk about concern for the deficit and the budget has been bogus for as long as it’s been around.”

The new budget deal reportedly includes a mere $75 billion in budget cuts—only $7.5 billion per year, less than 0.2 percent of all federal spending, and only half of what the White House originally sought.

The Congressional Budget Office (CBO) projects that the federal government will spend more than $57 trillion over the next decade. In the context of a $50,000 annual household budget, that means the proposed $75 billion in offsets is roughly equivalent to cutting $75 in personal spending every year and expecting that to let you pay off several maxed out credit cards.

The Republican Study Committee, a coalition that includes most members of the House GOP caucus, has condemned the budget deal as fiscally irresponsible, and the president of the conservative Club for Growth has said the agreement will “propel our country toward bankruptcy and fiscal crisis.”

But as Trump has taken over the Republican Party, the influence of those other groups has waned. And with Democrats now controlling the House, any Republican resistance to higher spending will have a blunted effect anyway.

Meanwhile, the national debt will continue to grow even without lawmakers adding to it this month. The CBO presently projects that the federal government will add another $11.6 trillion to the deficit over the next decade. By 2049, the national debt will be more than one and a half times the size of the entire U.S. economy, breaking a record set during World War II. If a recession hits, those numbers could be worse.

And yet the only thing officials in Washington can agree to do is spend more money. May our children forgive us.

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Last month Texas legalized hemp, defined as cannabis that contains 0.3 percent or less THC by weight. That change has created challenges for prosecutors in marijuana cases, since the equipment needed to precisely measure THC content is in short supply. The upshot is frustrating to drug warriors but a nice surprise for opponents of pot prohibition.

On July 2, Harris County District Attorney Kim Ogg, whose jurisdiction includes Houston, the state’s biggest city, announced that her office would no longer accept possession cases involving misdemeanor quantities of marijuana (four ounces or less) “without a lab test result proving that the evidence seized has a THC concentration of over .3%.” She added that “felony marijuana charges will be evaluated on a case by case basis by our Office” and “in the proper instances, such charges may be taken while lab test results are pending.”

The next day, Travis County District Attorney Margaret Moore, whose jurisdiction includes Austin, the state capital, said her office was dismissing 32 felony marijuana cases because of the wrinkle created by hemp legalization. “If we can’t prove our case, we need to dismiss,” explained Moore, who estimated that the necessary laboratory equipment would cost $185,000 and would not be up and running for eight to 12 months.

Peter Stout, president of the Houston Forensic Science Center, which does testing for law enforcement agencies, told The New York Times he was able to locate just two American laboratories, both privately run, that currently have the capability to distinguish between hemp and marijuana. “Prosecutors would need to pay the labs to run the tests—sometimes hundreds of dollars for each sample—and to testify about the results at trial,” the Times reports. “Sending all of the state’s suspected marijuana to a small number of labs would likely overwhelm them, prosecutors have said, and would result in severe backlogs.”

While critics of the war on weed should welcome this side effect of hemp legalization, Gov. Greg Abbott, Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen, and Attorney General Ken Paxton are not pleased. “Some of you have recently dismissed marijuana possession cases or announced you will not prosecute misdemeanor marijuana possession cases without a lab test,” they wrote in a letter to Texas prosecutors last Thursday. “Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 [the hemp bill] works. First, a person claiming to transport hemp must have a certificate. Failure to have the required certificate while transporting hemp is a separate crime. Second, lab tests are not required in every case and are more affordable than initial reporting indicated. Failing to enforce marijuana laws cannot be blamed on legislation that did not decriminalize marijuana in Texas.”

Among the top prosecutors for the state’s 10 most populous counties, The Texas Tribune reports, only El Paso District Attorney Jaime Esparza “has stated definitively that the new hemp law won’t affect marijuana prosecution in his office.” Esparza said “we weren’t even using lab reports” before hemp legalization, suggesting his office relied on circumstantial evidence and the physical resemblance between seized plant matter and marijuana. But it’s hard to see how a marijuana case can be proven beyond a reasonable doubt now that two samples of cannabis can look and smell the same even though one is contraband while the other, because of its low THC content, is not.

“Even before the passage of H.B. 1325, companies and labs were already developing THC concentration tests,” Abbott et al. wrote. “As more companies enter the testing marketplace, the costs of the tests will certainly decline, and you may weigh which prosecution method is appropriate. In short, lab tests are not always needed, and they are not as costly as some initial reporting indicated.”

There would be even less need for such lab tests if Texas legislators came to their senses and decriminalized marijuana use, a change that Moore, the Austin County D.A., favors. But in the race between marijuana reform in Texas and technological innovation in the forensic testing industry, I suspect the latter will win.

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Quick: Do you think you can prove to the satisfaction of an immigration officer that you have the right to be in the United States right now? Can you prove that you’ve been living in the United States for at least two years?  If not, you risk getting deported under a new policy being pushed by President Donald Trump’s administration.

Today, the Department of Homeland Security (DHS), under Acting Secretary Kevin McAleenan, released a notice announcing plans to dramatically expand the “expedited removal” process.

This process generally bypasses judicial review hearings, meaning those subjected to it don’t get the typical due process mechanisms of those facing deportation (which can normally take months or years). Expedited removals already exist, but with restrictions: The process can be applied only to those who arrived to the United States by sea and have been in the country for less than two years; or to those who crossed the United States border by land, and are still within 100 miles of the U.S. border, and were in the United States for less than 14 days before encountering immigration officers.

The new policy would erase many of the geographic limitations. McAleenan says the DHS is “exercising its statutory authority” under a 1996 law to cover immigrants anywhere within the United States who have been here less than two years, regardless of how they arrived. So that 100-mile limit would go away under this new system. Any immigrant found anywhere in the United States would risk expedited removal if they “have not affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility.”

The burden then is put on the immigrants to prove they’re here legally—or, if they can’t do that, that they’ve been here for more than two years. Otherwise they risk rapid deportation with little to no recourse.

Part of the justification for expanding the policy, the order explains, is the massive logjam in immigration enforcement procedures, which has caused a growing humanitarian crisis at several detention facilities near the border. McAleenan explains that the new policy would “help to alleviate some of the burden and capacity issues currently faced by DHS and [the Department of Justice] by allowing DHS to remove certain aliens encountered in the interior more quickly, as opposed to placing those aliens in more time-consuming removal proceedings.” They calculate that more than a third of the aliens they have detained from the interior of the United States (deeper than that 100-mile limit) would potentially qualify for expedited removal if immigration had been following these guidelines.

Regardless of how one feels about immigration levels and border enforcement, any fan of human liberty should be concerned when an arm of the executive branch proposes expanding the scope of how much it can enforce regulations without judicial review. It’s bad enough to deny aliens here due process. (Yes, the rights guaranteed by the Constitution are generally supposed to apply to noncitizens.) But what’s worse is what we already know from how DHS treats American citizens and legal immigrants within that 100-mile zone—with intrusive, unwarranted searches. This authority will most certainly be abused.

Just last week U.S. Customs officials detained three children, who are U.S. citizens, at O’Hare International Airport in Chicago, in the hopes of luring out their parents, who they believe are illegal immigrants. Expanding the power to remove people quickly is almost sure to hit people that it shouldn’t, and to be used to threaten immigrants and minorities even when they’re here legally.

The American Civil Liberties Union is already announcing plans to sue:

???? We are suing to quickly stop Trump's efforts to massively expand the expedited removal of immigrants.

Immigrants that have lived here for years will have less due process rights than people get in traffic court.

The plan is unlawful. Period.

— ACLU (@ACLU) July 22, 2019

Read the order for yourself here.

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