- [Adam] Hi, I'm Adam Samaha,
and along with Ryan Goodman
and my co-panelists, we decided
to organize this discussion
so we could offer some
of our initial thinking
on the emerging constitutional
issues that are stirring.
And we've got several experts
from several different fields.
And we're each gonna talk for a bit
and try to preserve some time
for questions at the end.
So we're gonna be covering
a wide variety of topics.
And the idea is to initiate discussion
and analysis about these topics.
And of course, we won't be
able to come to closure.
So we'll start first with Ryan Goodman.
We've ditched the idea of a moderator.
That just seemed kind of
hierarchical and unnecessary.
So we're gonna introduce ourselves.
I'll turn it over to
Ryan to introduce himself
and to talk about the use of force abroad.
- [Ryan] So I'm gonna just speak briefly.
I think we each are,
and then so we'll have
enough time for
conversation and discussion.
So I'm Ryan Goodman, I'm a professor here.
And one of my main areas
is use of force rules.
So when can one state use
force against another state?
And law of armed conflict rules.
What are the rules that apply during
that use of force or hostilities?
And I want to try to raise
certain kind of constitutional
questions that I think might come up
during the Trump administration.
So I thought what I would highlight
is basically a kind of a challenge
between what currently
exists, the status quo
of a Congressional authorization
for the executive branch
to use force against Al Qaeda
and its associated forces,
versus the President's Article
Two powers to use force
without Congressional
authority on his own terms.
And I think the danger that lurks is
that a Trump administration might begin
to use force against new enemies,
new groups that it identifies
as national security threats
to the United States, or the
same groups in new countries.
So opening up new fronts
without there being
sufficient democratic dialogue
or the nation's other
political representatives,
the Congress, involved in
that kind of a question.
But what the strength
place that I find myself
is that I think of the status quo
as unacceptable, which is an
authorization to use force
that doesn't easily apply to
ISIL and these other groups
versus changes that could be made
to the status quo that would
be even more unacceptable.
And so what I mean by that
is that the Obama White House
has been operating right
now for quite some time
under the authorization
that Congress passed
in September of 2001 to deal with 9/11,
and has applied that to the
fight against the Islamic State.
And that is legally dubious.
So before I served in the government,
I'd actually written about
how much of a stretch it is
to apply the authorization
from September 2001
to an organization, ISIL,
that didn't exist on September 1st.
It had, then, come into
existence with Al Qaeda
but then split from Al Qaeda
and is currently a mortal
foe, combat of Al Qaeda.
The two groups fight each other,
inside Syria, for example.
So to think of them as
part of the same battle
is legally dubious, to think
that that authorization
from September 2001 applies to 2017,
and where do you go from there?
If it applies to that kind of a group,
the so-called successor theory,
that they carry the
mantle of Osama Bin Laden,
and other groups could also
pop up into the future.
Now, the strongest proponent of the idea
that the status quo is unacceptable
because the President is
acting unconstitutionally
happens to be Tim Kaine on the Hill.
So Time Kaine made this,
has come the closest
to arguing that the
President's current use,
President Obama's use,
of force against ISIL
is not congressionally authorized
and therefore it requires Congress
to pass an ISIL-specific authorization
of use of military force.
One of the things I've found most curious
is after the election, Senator
Kaine on his first speech
that he gave in the
Senate was on this issue.
So he's actually still on it,
knowing that the next administration
will be a Trump administration.
And the hearings of some of the nominees
raised the question of do you want
as the next administration
to have Congress
pass an authorization for
the use of military force?
So the status quo might be unacceptable.
But the changes that Congress would make
I think could be more unacceptable
in the sense that it used to be thought
that we wanted Congress
to pass an authorization
to constrain the executive branch
and the Obama administration
and the potential Hillary
Clinton administration.
But now, you have to start rethinking
well what would be the way to repair
this constitutional gap?
Because one of the most important aspects
of the authorization of
use of military force
is the idea that it
would be ISIL-specific.
Tim Kaine has drafted
authorization legislation
that would be ISIL-specific.
Most of them were.
But I think everything's up for grabs
over the next four years,
especially over the next,
after the next midterm elections
when there are probably gonna
be more Republican senators.
And I don't think Mike Flynn is gonna ask
for an ISIL-specific authorization.
It will be much more open ended
against terrorist organizations.
Secondly, the current draft,
the current authorization,
to try to stretch it to ISIL is one
where you're stretching the rubber band.
To try to stretch it to
ISIL's associated forces,
so those groups that then align with ISIL,
is maybe a stretch too
far if you're dealing
with the 2001 authorization.
But if you're dealing
with a 2017 authorization,
that wouldn't be as much of a stretch.
So the idea is that if you've got
that kind of Congressional authorization
for policy reasons, that might end up
in more of a slippery
slope of daisy chaining,
like ISIL and then its associated groups
and the associated groups of
the associated groups of ISIL.
Lastly, the 2001
authorization has been read
by the Supreme Court to incorporate
international legal constraints.
So my main area of international law,
targeting rules and the
like, detention rules,
are read in to what
Congress intended in 2001
to constrain the executive.
Some of the drafts that have
been proposed on the Hill
in the last year, year and a half,
don't have that constraint.
I highly doubt that we can
count on that constraint
being in the 2017 AMF.
And there's been other
discussion by other groups
about having that authorization.
I worry about those kinds of risks.
The last point I thought I'd make
on this particular issue is detention.
So the one area that I
think about a lot is Gitmo.
If Gitmo is open for service again
and the Trump administration
even takes one
individual in custody and
takes them onto Guantanamo
just as a symbolic move to demonstrate
that it's still open for business,
that actually might raise this
as a constitutional
question before the courts.
So I think a habeas
petition by that individual
as a member of ISIL is
gonna raise the AMF question
of whether or not the 2001 AMF can apply
to ISIL as a group, and in some ways,
that might even be kind of the
strange upside of Guantanamo.
If you were to choose where
those individuals are detained,
for constitutional protections
rule of law values,
you might actually prefer
that they end up on Guantanamo
than that they end up in something
the equivalent of the
Bagram Air Force base,
which federal courts have said
there is no jurisdiction over that,
or in the hands of non-state actors
or other foreign partners,
so outside of US custody.
And there would be no review of that.
So there's this strange quality
of where these individuals
end up without the AMF.
That actually might be a reason
that there would be pressure
on the Congress to
decrease the legal risks
to the executive branch to pass an AMF
at the same time that they obviously,
the sentiment on the Hill,
to keep Guantanamo open.
I think those are some of
the main issues or challenges
and complexities that I'm thinking about
when I think about some of
the constitutional questions,
use of force and detention.
- [Adam] That was fantastic and concise.
All right, so I'm gonna talk a little bit
about speech and religion,
and if compelled,
the Foreign Emoluments Clause.
But that's for later on.
So in speaking to religion,
let me speak first broadly.
So most or all of the
issues that I will reference
can be addressed using
old constitutional logic,
orthodox or conventional legal reasoning,
of which constitutional
legal reasoning is a part.
They can be addressed that
way, maybe all of them.
So Muslim registries and
flag burning, for example,
those stand out, or the
ability of government
to try to restrain leaks, and what happens
when information leaks afterward.
These are all familiar issues on which
conventional or what I'll call old
constitutional logic does not break down.
But conventional logic, legal reasoning,
including constitutional
analysis, can break down,
and it can break down
for a number of reasons.
So I want to highlight
two types of breakdown.
So one is that the old logic
just doesn't seem to work.
It seems to fail in the sense
that it doesn't seem to apply.
You don't seem able to process
an issue that seems new.
And when that happens, then the people
who are actually engaged in
conventional legal reason
in the old legal logic, there's
often an internal pressure,
then, a felt need for something new
in order to process these problems.
Now, that doesn't mean
that constitutional law
will necessarily govern then.
It might be the best option
to leave constitutional law out of it.
But that's one kind of break down.
A second type of break
down is when the old logic
is able to give results,
nobody really denies that.
But the logic and the results
maybe both are under attack.
So they're under fundamental challenge.
That often comes from outside
the legal system, per se,
but it can come from within, as well.
So when that happens, that
kind of type two break down,
that I think is often an opportunity,
or at least optimistically,
it's an opportunity
to explain why the old logic
and the old results should be preserved.
That should be an opportunity.
And I don't think it will be adequate,
under these conditions,
it won't be adequate
to say well it's old, or very very old,
or unbelievably old.
Because the challenge is to the logic
and the results themselves.
Okay, so to try to illustrate
that larger framework
and speak just a little bit
about speech and religion,
let's talk first about Muslim registries.
Now, I read a report that Nikki Haley
during her confirmation hearings
today repudiated this idea
of having people in the United States
who admit to being Muslim be registered
with the federal government.
So this might've been just
a not very well thought out
component of the early
presidential campaign.
And maybe it's not really
a serious proposal.
Well let's just think
about that for a moment.
Under the old logic, this
is flatly unconstitutional.
I don't think it's
really close questioned.
As long as there's some sort of hassle,
and not even a penalty, but
just a hassle to register
based on religious belief,
that's just unconstitutional.
Now, there isn't terrific
originalist history
to support that proposition,
but over a long period of time,
building up lessons we
felt have been learned,
that's just unconstitutional
to single out religious belief.
Now, if somehow the
singling out is religiously
motivated conduct, then
conventionally speaking,
we apply strict scrutiny
and the government
better have a very persuasive reason
for singling out religiously
motivated conduct as such.
And it just seemed impossible
under orthodox old analysis
that that position could be sustained.
So that's an old kind of logic.
And it makes you wonder
why anyone would propose it
if they've thought about it very much.
And one possibility is, of
course, is it's a kind of stunt
or a political gambit,
and not really meant
to be a serious proposal.
So think just a minute,
leaving aside legal logic,
just thinking about policy
and pragmatics and maybe evidence.
So what would happen if you
asked Muslims to register?
Well, religion happens to be opaque.
It's something that people can express,
but they can also often keep hidden.
And so what the registry
would do, I take it,
would punish the conscientious.
So it would punish those who
are willing to be honest.
And those who are willing to
hide, I guess, would escape,
unless you have some sort
of supplemental program.
So you would disadvantage
the conscientious.
And then there were proposed
form of protest by non-Muslims
who said we will register
if you set up a registry.
That creates real problems
for administration.
That's a bold and clever move.
So then it makes you
think that there are just,
or ought to be, alternatives
that are a little more serious.
And these other
alternatives, it turns out,
under the old logic, I think are not much
of a constitutional problem.
Take one pretty obvious one, surveillance.
Okay, surveillance, just surveillance,
and not letting anybody know about it.
Now if you do that, then
there are pretty obvious
and established standing
problems to getting into court
if that's what you want to do to object.
And moreover, a secretive
surveillance program
is likely to be fairly effective.
Now, you can't claim political credit
if you do it that way.
But secretly targeting
people based on felt risk
within an administration seems like
a much more practical alternative,
and one that the old logic, actually,
of constitutional law,
doesn't provide much ground in
for complaint, at least
not effectual complaint.
Now let me speak for
just a few minutes, then,
about speech, and I'll talk
about flag burning first
'cause that's one of these old issues.
It's so old, it's so 1980s, this issue.
That's I think much of what
we will look forward to
in the next administration
is a return to the 1980s,
so, which I remember all too well.
So let's think about that, flag burning.
Okay, so old logic, this is easy.
You can even cite cases that
singling out flag burning,
targeting flag burning and punishing it
because of the
offensiveness of the message
is just flatly unconstitutional.
You can cite cases for this.
And I've seen news articles
citing cases for that.
Now I don't think that
people who want flag burning
to be punished don't understand
that the Supreme Court has made a ruling.
They either want a
constitutional amendment
or they want to discuss
and talk about the issue
or promote it regardless of
what some judge has said.
And I think that pushes
us toward a less orthodox,
maybe less conventional form of reason
that's maybe not
constitutional reason at all,
and that's to think about why, if at all,
flag burning should be protected
under the Constitution.
So one way of thinking
about the problem is
well this is a matter of self expression.
And when the government
singles out messages
based on those messages, we
should be highly skeptical
that government officials, regulators
are gonna get this right.
And no matter what, it's gonna suppress
some people's ability
to express themselves.
But if we open up the
argument beyond conventional
legal reason and think about
flag burning as a practice
just for a moment, I don't
really have terrific evidence,
but has flag burning ever
actually accomplished anything?
Other than I guess two things.
One is demonstrating the
intensity of someone's feelings.
It definitely does that.
And I think it indicates
that the person cares not
for other people's feelings, or at least
a certain class of people's feelings.
Now I'm not sure how
highly we want to value
that sort of conduct.
In fact, for many of you
out there in the audience,
you might think the combination
of expressing yourself
in very strong form and
indicating you care not
about other people's feelings
might remind you of somebody.
(audience laughs)
So think about that.
The other interesting
feature of flag burning
is that it's very effective
when it's under assault,
and probably is more
potent if made illegal.
So there could actually be
a real practical function
for protest when the
protest is itself unlawful
and the person is willing to
take the legal consequences
in order to show the
intensity of their belief
and also to confront standard
operating procedures.
Okay, I just have a little bit more,
I have a lot more I want to say,
but a little bit more that I will say
to leave some time for discussion.
Let me talk, then, about more novel issues
in which orthodox legal
reason might break down
in maybe both ways.
So think about these
issues that I see rising.
Number one, the President
calling people names,
or more particularly,
calling organizations names.
CNN, fake news.
New York Times, failing.
Now, I think under the old logic,
this is really not much of a problem
unless there's some realistic threat
of formal legal action
against these entities.
Moreover, those statements
can be leveraged
into increased audience shares.
So noting that the President
has singled you out
and said you're failing can
actually boost your readership
in a demonstrable way.
And having that kind of confrontation
with the President of the
United States can be useful.
So it can actually be to the
advantage of the targets.
That's at least possible.
So maybe the organization should
just lump it, as they say.
But there is another
effect of speech like this.
It seems to contribute to the Balkinzation
of media sources and where
people have an option to decide
what kind of reality that they live in
without checking data evidence
or the sensibilities of other people.
That's not something, that kind of issue
is not something that
old style legal reason
or constitutional reason
can handle very well,
at least not yet.
I'll note two other emerging issues
that may or may not be
constitutional in our near future.
The President withholding information,
not just on government operations,
but on the operations of
the Trump organization
and the trust system that
the President has said
that he will set up.
Now he's made promises
about how this organization
will operate, and ordinarily,
there's really no good
First Amendment claim, no
good constitutional claim,
to the disclosure of
government information,
let alone information about
nominally private organizations.
But when the President makes a promise
in order to try to defend against problems
of conflict of interest,
when that promise is made,
I wonder if this will then be converted
into a constitutional
debate or a discussion
of constitutional dimension.
And then finally I'll
just flag one more issue.
And that is the President suing people.
I've found zero historical examples
of the President suing somebody else.
The President apparently
does have a private capacity,
at least the courts thought so
in the Clinton against Jones
litigation, so the
President probably does have
a personal capacity and can sue.
So that's a hurdle that I
think he could overcome.
Whether the President
has a cause of action
is a more interesting question.
Do note, though, that some
untold number of people
have signed nondisclosure
agreements with Donald Trump
and the Trump organization,
promising not to disclose
confidential information.
And under at least some
of these agreements,
confidential information
is more or less defined as
what Donald Trump would
prefer not to be discussed
or what the Trump organization
prefers not to be discussed.
So if the President
himself, or more likely,
the Trump organization, sues to enforce
these nondisclosure
agreements against people
who now want to claim misconduct
on behalf of the now President
of the United States,
how do you analyze that as
a constitutional question?
Seems to me the resources
of old constitutional
thinking probably run out.
And that, I think, is
where our job begins.
And when I say our, I mean
me and you out there, too.
Okay, thanks.
- [Kim] So, when Adam
asked me to join the panel
to discuss the effects
of a Trump presidency
on criminal justice
policy, I have to admit
that I hesitated, largely
because his request
actually forced me to face the reality
that this was not just
a bad nightmare on 11/9,
but actually was a reality.
So even if I refuse to watch
the inauguration on Friday,
it's going to happen.
And even if I refuse to acknowledge
Trump's toxic tweets, they will continue.
And even if I refuse to believe
that someone so divisive
will actually be our
President, he will on Friday.
So that means that I and the rest of us
have to acknowledge the disturbing reality
that President Trump
will be making decisions
that will be affecting the lives of people
whom he has no interest in understanding.
And so what I'm gonna do is
spend a little bit of time,
since I spent a little time preparing,
talking about some of the
things that I've learned
as I've tried to pull together
a coherent set of policies,
perhaps, from his tweets,
campaign rhetoric,
and Cabinet choices.
The themes that emerge when
you look at all of that
are troubling, to say
the least, and suggest
that we are likely to
see a radically altered
view of justice in this country.
Or to be more precise, we
are likely to experience
a set of regressive
policies that harken back
to the law and order regime
of a Nixon administration.
And those were the sorts
of policies that led
to the retributive path of crime control
and racialized policing strategies
from which we have yet to recover.
So as you likely know, the vast majority
of criminal prosecutions take
place at the state level,
not the federal level, right?
So about 211,000 people are
locked up in federal prisons,
compared with 1.3
million in state prisons.
But federal prosecutions could increase,
so that could be one thing
that we see as a change.
But more troubling, still,
the federal government
has the power of the purse and the pulpit.
And it can encourage and
advance retributive policies
that will affect the states.
So I'm gonna talk a little
bit about that, as well.
And so what I'm gonna try
to do in my 10 minutes
is talk about the tone,
the picks, and the effects
of a Trump Presidency on
the experience of justice.
And my comments will be less
about constitutional issues
and more about policy implications.
And I think I should say it up front
that I'm not gonna say
much about immigration.
I'm gonna leave that to Adam,
who's gonna spend his
time talking about that.
So first, let me talk about the tone.
Trump ran on a law and order platform
because he likes to proclaim he believes
that crime is out of control.
So his priorities, or at
least as he articulated them
and his nominee for Attorney General
has articulated them, are to crack down
on drugs and violent crime.
And given those priorities,
Trump has advocated a return
to more aggressive anti-crime tactics.
So let's start with some of those,
some of the policing tactics
that he is advocating.
He's recommended the widespread
use of stop and frisk
by law enforcement, and
will likely see incentives
from the federal government to states
in the form of federal aid to states
to encourage the implementation
of the kinds of policies
that he would like to see spread.
For example, the Office
of Justice Programs
has about two billion dollars that it uses
to fund programs in the states,
and that money tends to
flow towards policies
that the administration is
interested in spreading.
But back to stop and frisk for a moment.
As many of you know, the
stop and frisk policies
that were used by the New
York Police Department
and applauded by Trump
were ultimately found
to be unconstitutional
in their application
by Judge Scheindlin in Floyd v. New York.
She concluded that the
stops that were taking place
were not based on reasonable suspicion
and were not being conducted
in a race-neutral way.
What was happening was
that blacks and Latinos
were being stopped more than anyone else.
And we were getting what
was, could only be described
as a ridiculously low success rate.
4.4 million people were stopped.
52% of those were followed by a frisk.
1.5% of those produced a weapon,
so that meant that 98.5%
of the 2.5 million frisks
discovered no weapon whatsoever.
So despite Trump's full-throated
claims to the contrary,
this was not a program that worked well.
And he threatened that,
or he at least suggests,
that reducing the use of stop and frisk
would lead to an increase in crime.
And at least New York's
experience has been that
the crime rate has actually
declined since it stopped
using stop and frisk.
Which brings us to police oversight.
Trump is calling for less
regulation of police.
And as you may know, the
Obama Justice Department
made great use of its power to investigate
law enforcement agencies
engaged in a pattern
or practice of violating civil rights.
DOJ actually initiated 23 investigations
and began, and entered
into 11 consent decrees
mandating reform in Chicago, Baltimore,
Cleveland, and other cities.
Attorney General, or at least
his nominee Attorney General,
Sessions, has condemned such interventions
as an abuse of federal authority.
What we're seeing is
that Sessions and Trump
are actually looking
at some of the violence
that police are engaging
in against citizens
as the behavior of quote
unquote rogue officers,
rather than the byproduct of a culture
that too often sees itself
as an occupying force
in communities of color.
So in addition to sort of being tone deaf
to the incidents of police violence,
we may see some reversal
of some of the progress
that's been made in the
Obama administration
really maintaining strict
oversight of police activities.
What we've also seen in terms of the tone
is that Trump's rhetoric has
played to racial divisions
by playing to a tried and true device
that certainly propelled
much of the criminal justice
policymaking in the '80s and '90s.
And that is you look to
stoke the fear of crime
by suggesting that US cities,
particularly inner city neighborhoods,
are drowning in crime.
Trump uses inflammatory language,
calling communities of
color "crime-infested",
as a way of setting the
stage for Draconian policies
to eradicate the infestation.
And that kind of language
will actually lead to,
I suspect, some really dangerous events
because it's a dangerous
and divisive message
that enables us to use fear
to drive policy choices.
But we've also seen him use
those, that kind of language,
to push an agenda that
is really free of facts.
Because facts are not
his weapon of choice,
explosive language is.
And so his fact-free rants
often invite drastic responses
and make Draconian tactics seem normal.
So it perhaps should
not come as a surprise
that the National
Fraternal Order of Police
recently issued a wish
list, easy for me to say,
a wish list, for the first 100 days
of the Trump presidency
that calls for Trump
to reverse the Bush era
ban on racial profiling
and to reinstate it to enable
federal law enforcement to use it.
He set a tone and people are beginning
to pick up on that tone.
If we look at his picks quickly,
I think I have very little time,
if you look at his quicks pickly, quickly,
he has chosen Jeff Sessions
as the Attorney General
and it's perhaps his clearest message
about his views on criminal justice.
Sessions positions himself to the right
of even his fellow Republicans
on issues of crime,
or as Time Magazine suggests,
he's firmly planted on the fringe.
And what we see is that
Sessions has opposed efforts
to reduce unnecessarily long
federal prison sentences
for nonviolent crimes,
despite a bipartisan effort
to actually push that legislation.
He actually made it a personal crusade
to block that sentencing reform bill.
He is very focused on
drugs, really believes that
we need to have,
essentially, a war on drugs,
and is concerned about the fact
that we have moved away from those kinds
of punitive policies.
He adheres to them.
When he was in Alabama,
he, and Alabama became
the first state to bring
back the use of chain gangs
in 1995, which was obviously a
horrific remnant of Jim Crow.
He as Attorney General defended
it as perfectly proper.
And the worry is that there's nothing
in his public life
since then that actually
has convinced most of us
that he's a different man
than he was back then.
And in 1986, he was at
the time being considered
to become a federal district court judge
and he was deemed too racially insensitive
to be a federal district court judge.
And yet he's the nominee
for Attorney General.
I think if we look at
the effects, finally,
and I'll rush this and be willing
to open this up to questions,
but I think that we're going to see
a number of things happen.
We thought that there might be
an end to the death penalty.
The Supreme Court seemed
to be hinting at that.
But Trump supports the death penalty,
Sessions supports it, and
Trump will likely nominate
people to the court who will support
his retributive policies.
So the death penalty will likely continue.
We may see a change in the composition
of the federal judiciary.
Sessions has expressed
concern about appointing
public defenders as federal judges
because he worries about their agenda.
And Trump seems to be in accord with that.
We're likely to see an increase
in people of color in prisons.
Currently, no other country in the world
imprisons so many of its
racial or ethnic minorities.
We imprison a larger percentage
of our black population
than South Africa did at
the height of apartheid.
That's likely to increase.
So not wanting to end on a low note,
let me say that the agenda
for activists I think is pretty clear.
The fight has to be in the courtrooms.
It has to be in the state
legislatures and in the media,
because I actually think the state,
the center of gravity for
reform will take place
locally rather than federally.
- [Adam] Hi, I'm Adam
Cox, is my, I'm Adam Cox.
I teach Immigration and
Constitutional Law here.
And I'm gonna talk a little bit about
the constitutional
issues that might emerge
from Trump's immigration policies.
So the first thing I
guess I'd like to note
is the idea that presidential
immigration policies
might raise serious constitutional issues
is obviously not new.
President Obama's signature
immigration initiatives
prompted constitutional litigation
brought by a couple dozen states
that wound its way all the
way to the Supreme Court,
and ultimately, his signature initiative
was enjoined by the court system.
So the intersection
between immigration policy
and constitutional law
is very real right now.
But the way in which the
President elect Trump's
proposed policies are likely to raise
constitutional questions
is quite different
than the way in which
President Obama's were likely.
And in particular,
President Obama's policies
regarding deportation
were the ones that raised
constitutional litigation that
made its way to the court,
whereas it's more likely to
be the admissions policies,
the entrance policies, of
the Trump administration
that will raise those
constitutional questions.
So let me explain a little
bit about why that is.
So under the Obama administration, 2012,
President Obama announced
a policy initiative
to protect roughly a million
undocumented immigrants
who'd come to the country
when they were children.
And then in 2014, expanded on that policy,
announcing a new initiative
that would've protected
roughly four million other immigrants
living in the country
without legal authorization
from deportation.
Now those policies, in
particular the second one,
which protected the parents
of US citizen children
and green card holders, prompted
constitutional litigation
challenging the President's authority
to decide not to enforce immigration laws
against some formally
deportable non-citizens.
And the pool of formally
deportable non-citizens
is obviously very very large.
So the most striking fact about
American immigration policy
today is that of the roughly
22 million non-citizens
who live in the United States,
half are formally deportable.
So obviously in that
world, what matters most
for immigration policy is not the rules
that Congress makes,
so much as the choices
that presidents and their
administrations make
about whom from among that very large pool
of deportable people to pick and choose
for purposes of deportation.
Now the choices that the
Obama administration made
were challenged in court
in part on the ground
that the president had
effectively conferred a benefit
on unauthorized immigrants by promising
that they would not be deported.
The Trump administration
obviously is likely
to rescind those policies.
And the efforts that have been announced
by President elect Trump
go in the opposite direction, right?
They are policies that
will likely increase
enforcement levels
overall, and also expand
the group of potentially
deportable immigrants
who are subject to the
enforcement machinery
of the immigration bureaucracy.
Because 11 million immigrants
are living in the country
without legal authorization,
the President's decision
to change those choices, even
though it's a fundamental
policy change, is very unlikely to raise
significant constitutional questions
because from within that large pool,
the President just has significant power
to pick those priorities.
So the announcements by
President elect Trump
to target in an even increased fashion
the deportation of a group of immigrants
labeled by the administration,
by the President elect,
as criminal aliens, that
might be a very significant
policy change, but one that's unlikely
to raise constitutional questions.
And so instead, I think
what's likely to happen
is that the aggressive policy agenda
on the admissions side
of immigration policy
is the one that's most likely
to raise constitutional issues
in maybe two different ways.
So one set of policies
that've been suggested,
at least were suggested
during the campaign
by the President elect and
various advisors and supporters,
are policies that seek to depress levels
of lawful immigration
to the United States,
on the theory that our
current immigration policies
are simply too generous and don't work
or serve the interests
of the American people.
Now because so much of immigration policy
is made by the administrative state
and not by Congress
itself, decisions to try
to depress the level of lawful immigration
will require that the immigration service,
the Department of Homeland
Security, and others
make administrative changes
to the way that visas
are processed, applications are evaluated.
And those decisions might themselves raise
the same kind of constitutional challenge
that Republican governors
leveled against President Obama's
deportation relief initiatives.
And that is there might be challenges
that those policy changes cannot be made
without more significant
administrative process
than the President elect
is likely to want to use
to make those policy changes.
Right, so we're likely
to see basically like
the opposite political availance
on the same kind of
constitutional litigation
that tries to force the administration
to use more cumbersome
procedures to change policy
and therefore delay the policy change
that the administration can accomplish.
Okay, the second area of admissions policy
that I guess has been
more widely discussed
as likely to raise constitutional issues
are proposals by President elect Trump
and Candidate Trump to ban
certain kinds of immigrants
from coming to the United States.
Now obviously, this originated
I guess a little more
than a year ago in November
of 2015 when then Candidate
Donald Trump proposed banning
all Muslim immigrants from the country.
That policy proposal has evolved
like a number of times over the last year.
I think Ryan and Adam both
mentioned it as a possible,
there's a possible registry
component in it today.
But it remains a question
whether the president
has the authority to decide
that some particular group
of immigrants, whether
identified on the basis of race
or religion or ideology,
or perhaps on the basis
of other things like whether
they come from countries
that the administration believes
have connections to terrorism,
whether those kinds of immigrants can be
at the wish of the president
excluded from the country.
Now there's obviously a statutory
question underneath that,
whether Congress has given
the president that power.
But there's also a
constitutional question.
And the constitutional
question is live in part
because an odd aspect of immigration law
is that many many foundational questions
about how the Constitution
applies to immigration policy
have just never been
answered by the courts.
And the foundational cases that gave us
immigration policy today, cases that arose
in the late 19th century,
when Congress first enacted
restrictive immigration laws that,
in an openly racial fashion,
prohibited the entry
of Chinese immigrants
to the United States,
those policies were sustained
by the Supreme Court
and gave rise to something known
as the plenary power
doctrine of immigration.
Now what that doctrine
is and what it stands for
has been long debated and never resolved
by our federal courts or
certainly the Supreme Court.
And that's what creates the possibility
that policies that in
ordinary domestic contexts
would be considered
obviously unconstitutional,
like a policy that discriminates openly
on the basis of race,
creates the possibility
that a court would sustain such a policy
when the decision is whether or not
to admit an immigrant on the basis of race
or religion or ideology.
Now I think the fact that the
Supreme Court in particular
has been reluctant ever
to formally resolve
the question of whether
the Constitution applies
in admissions contexts for immigrants
in the same way that it applies
in ordinary domestic contexts
makes me think that it's gonna continue
to likely that we try to avoid that issue.
And its avoidance might be facilitated
by the administration itself.
So while I guess I doubt that
the current Supreme Court
would actually sustain
an immigration policy
that openly excluded
immigrants on the basis of race
or religion, what we're more
likely to see, of course,
and what the more recent
policy proposals reflect,
are policies that say use proxies like
picking a list of countries in the way
that the Bush administration
did for either exclusion
or special registration where
it happens to be the case
that the list of countries
chosen is highly correlated with
nations that have significant
Muslim populations
or significant Arab
populations or the like.
And so policies that are
correlated strongly with race
or religion, those I think
might be sustained by courts.
But the reason that they
might be sustained by courts
actually doesn't have a whole lot to do
with the way in which
immigration constitutionalism
is exceptional, and is a lot more to do
with what Kim mentioned,
which is the way in which
ordinary domestic constitutional law
actually does very little
to regulate policies
that are neutral on their face
but that are correlated with
things like race and religion.
The tests that litigants must overcome
to demonstrate that those policies
constitute unconstitutional discrimination
are extremely demanding, and as a result,
it's very difficult for
profiling litigation
in any context to succeed.
So there's much more I can say.
Sanctuary city policy is another area
where I think there will be a lot
of constitutional struggle between state
and local governments and
the federal government
over immigration policy.
But maybe I'll turn it over to Rick,
because he can probably talk about that
when he talks about localism.
- [Rick] Hi, I'm Rick Hills.
I teach Con Law, I teach
Stat Leg Reg course,
a lot of state and local public law
that's irrelevant to this panel.
I was asked to talk about
decentralization and localism
and how Trump might affect that.
And here's just three
thoughts very quickly.
I think there's three kinds
of probably or plausible
either recentralization
or decentralization.
To be precise, two kinds
of recentralization,
one kind of decentralization,
that's probable
or at least plausible under
a Trump administration.
So let's take the first
kind of recentralization.
It's renewal of very
conventional agency preemption
that industry has been
seeking for a long time
and got a lot of under the
second Bush administration.
So for instance, California has a waiver
to impose extra fuel
efficiency on automobiles.
They got it in the Obama administration
under the Clean Air Act.
I think the Trump
administration will make a move
to repeal that waiver.
They'll have to go through
notice and comment rulemaking,
but they'll try to do that.
The various states have
consumer finance laws or blue sky laws.
New York state has a famous
law called the Martin Act
that's used to go after
lenders, banks, other businesses
for fraud or for deceptive practices.
There's a huge move in the
second Bush administration
to preempt these by the Office
of the Comptroller of Currency.
It was largely successful.
After 2011, the Obama administration
started to pull back on preemption.
I suspect the Trump administration
shall try to reimpose
that kind of preemption.
Lot of tort liability has
been imposed by states
on things like pharmaceutical,
entities like pharmaceutical companies
for defective design or
production of generic drugs.
There's been a lot of
preemption action there.
The Obama administration tried
to limit that preemption.
The Trump administration will
certainly try to reimpose it.
The thing I emphasize about
this kind of recentralization,
it's very conventional.
It's been the stuff of
the Supreme Court's docket
for the last at least 20 years.
And when a Democratic
administration's in power,
the preemption tends to go down.
And when a Republican
administration in power, it goes up.
Maybe that's comforting.
Same old stuff.
One difference I should
add is that there has been
certain kinds of statutory roadblocks
or speed bumps to preemption.
So the Dodd-Frank Act
has a preemption clause
that actually resists a lot
of the kinds of preemption
of state consumer finance laws
that I think the Trump
administration will likely seek.
I know that Paul Adkins,
who's a Trump advisor,
who's on the short list
for Chair of the SEC,
wants to get rid of the
Martin Act in the worst way.
Might be difficult,
because Dodd-Frank says
that any effort to preempt
state consumer finance laws
is subject to only Skidmore,
not Chevron deference.
It's one of the few cases where a statute
actually cites a Supreme Court
case in a preemption clause.
Okay, a second kind of recentralization
will be enforcement of existing statutes
against various subnational
deregulatory efforts.
So the first kind of
case is where the states
are trying to regulate a lot,
and the Trump administration
says hold on, we want you to deregulate.
Let those auto manufacturers alone.
The second kind of centralization
is where the states and
locals want to deregulate
and the federal government says hold on,
we want you to regulate more.
And the two obvious examples
are medical marijuana
and sanctuary cities.
So Jeff Sessions hates marijuana.
(audience laughs)
And he has said that he thinks
that as a Schedule I substance
under the Controlled Substances Act,
it should be regulated.
And so there's an outside chance
that he might be so foolish
as to try to go after
Colorado drug dispensaries,
marijuana dispensaries.
I think that's an outside chance
because the political fallout from that,
having just come from
Colorado, would be enormous.
(audience laughs)
I mean the idea that you're going to tell
these harried soccer moms who
are piling into Manitu Springs
to get their mother's little
helper for the next trip,
I just don't see that happening.
The more serious effort will
be his proclaimed effort
to go after so-called sanctuary cities.
Now these are cities that
have a law enforcement policy
of not collecting or distributing data,
immigrant data, about the immigrant status
of people they detain or question.
And you might ask what tools
does the federal government
have in its toolkit to
go after these cities
to recentralize, to reregulate?
There's two tools that the
Trump administration could use.
One is an existing statutory provision
that actually has been on
the books since I think '96.
Has it been on the books since '96?
Which says that no city can interfere
with an individual officer's
desire to cooperate
with federal immigration authorities.
So if there was an individual NYPD cop
who was itching to help
out ICE locate people
who are unlawfully present in the country,
in theory, they could do so.
Now except for an opinion by
Ralph Winter I think in 2000,
there's almost no discussion in the courts
about what this means.
If all it means is that individual cops
can moonlight for the feds,
that's not a real help
to the federal government.
I presume they can
already work for the feds
if they wanted to.
If what it means is
that individual officers
get to use proprietary
data that they only have
in their capacity as
employees of the city,
well that raises really interesting
constitutional questions.
My own sense is there's
a powerful argument
that that's commandeering
the city government.
You know, the officer has a
badge, a gun, and a computer.
But that's city stuff.
And the fact that the
officer wants to use it
on behalf of the feds really doesn't mean
that the feds are not in fact
taking over city property,
as you know, they can't do
that from constitutional law
that there's state autonomy
doctrine that forbids that.
The other tool that they could
use against sanctuary cities
is that they could try to pull
various law enforcement
grants like federal OJP money.
Cities do get a significant
amount of law enforcement money.
But it's not that much.
It's not like huge ticket money.
So in order for this cudgel
to be effective against a city
that has very large electoral incentives
not to turn over immigration or collect
immigration information,
I think they'd have to after other grants.
They'd have to go for the grants
that are only tenuously
related to law enforcement.
Now as you know from National Federation
of Independent Businesses v. Sebelius,
our own Chief Justice Roberts
has written an opinion
that says you can't go
after unrelated money
if it's a very large sum of money,
and if it's a very large sum of money
that looks like it's being used to coerce
subnational governments into
cooperating with the feds.
And so ironically, a
precedent that liberals hate
will turn out to be the last
best hope of sanctuary cities.
Because of Trump tries to go after, say,
city Medicaid money, and New York City
actually gets Medicaid
money, well that would raise
I think serious constitutional
questions of state autonomy.
So those are the two kinds of efforts
where the Trump administration
might try to suppress cities
either by requiring them or
forbidding them from regulating.
I'm just gonna close by talking about
what I think is actually the most salient
effect of the Trump
administration on localism.
I actually think it's likely
to be a very decentralizing
administration,
simply because it's politically
easier to decentralize.
What do I mean by that?
Well the Obama administration did impose
various civil rights mandates
on cities and states.
Let me give you some examples.
The Dear Colleague Letter from
the Office of Civil Rights
from the Department of
Education enforcing Title IX
sexual assault standards
against both public
and private universities.
Betsy DeVos at her hearing, you know,
talked a little bit about that policy.
It's very likely to go by the wayside
in the Trump administration.
Since it was just a Dear Colleague Letter,
a stroke of a pen will
take care of that policy.
Title VI oversight of state
courts or public schools.
The Obama administration
has sent out letters
to state courts saying you
better have translators,
even in civil suits, even for plaintiffs,
regardless of the wealth of the litigant.
That caused a lot of anger
from a lot of state judges.
That's likely to go by the wayside.
Again, it's just a letter.
Stroke of a pen gets rid of it.
Affirmatively furthering fair housing.
The Obama administration went
after West Chester County,
saying you gotta desegregate your suburbs.
That's just a lawsuit.
They just closed the
deal a couple weeks ago
in a consent decree.
I doubt there'll be any more AFFH lawsuits
to desegregate suburbs.
The Prison Rape Elimination Act
gives the Department of Justice oversight
over state incarceration
practices to reduce prison rape.
Don't think that's gonna
be going on anymore.
And then lastly, DOJ
oversight of police behavior,
for instance in Chicago.
I think that that's
probably gonna go down.
Now all of that is our instances
where the federal government
actually decentralizes.
That is to say, they
just get out of the way
and let state and local
governments do what they want.
Like it or hate it, it is
an opportunity for you guys
at the local level to do what you want.
And the example I would
give is New York City.
New York City's crime rate has plummeted
and their police practices have improved.
And part of that is that
a lot of New Yorkers
have done a lot about New York City.
You know, it's interesting
that Chicago police are rougher
and yet they have a higher murder rate.
New York City cops are under the oversight
of a lot of people, including
our own Peter Zimroth,
who's sitting right there,
the court-appointed mediator
by Judge Scheindlin on
the stop and frisk case.
And he's written excellent reports,
given recommendations to NYPD.
Well he can continue to write reports.
The Trump administration won't stop that.
And they won't stop anybody
else in New York City
from improving our practices.
So keep in mind that decentralization
is both a risk, but it is an opportunity.
And it's coming your way soon
as a result of a new administration.
