Fall 2020 Print Edition

Volume IV

Fall 2020

Issue I

The Undergraduate Law Review at New York University

The Undergraduate Law Review at New York University

Volume IV ✳ Fall 2020 ✳ Issue I

Copyright © 2021 By The Undergraduate Law Review at New York University New York, N.Y.

Table of Contents Introduction Mission Statement Letter from the Editor Editorial Team

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Articles Towards Dismantling Housing Segragation in the United States: A Proposal for a Court-Issued Housing Integration Mandate Megan Schwartz 6

Viral Meme or National Security Threat? Exploring President Trump’s Actions regarding TikTok Anastasios Zias 22

By What Authority? Analyzing Stare Decisis Doctrine in Justice Clarence Thomas’s Gamble Concurrence Michael Potter 30

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Table of Contents Cont.

American Military Commissions: A Long History of Injustice Ari Gershengorn 46

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The Undergraduate Law Review at New York University

Mission Statement Founded in 2017, the Undergraduate Law Review at New York University provides a platform for the submission and discussion of law-related topics for students at New York University. We accept undergraduate student submissions of articles that examine and explore topics pertaining to law and the legal field. As a journal that fosters scholarly debate, research, and analysis, our mission is to encourage legal and political awareness in the NYU community.

Submissions The Undergraduate Law Review at New York University publishes pieces that cover a wide range of topics grounded in a legal foundation. The Journal often publishes analysis that either covers a legal subject relevant to the present day or reviews and comments on history from a legal angle. We appreciate bold and unique perspectives that contribute to New York University’s broader discourse and debate. Writers are allowed freedom in length and structure of their piece; however, all compositions must follow the Journal’s writing and style guide, found online at ulrnyu.org.

Please send submissions to ulrnyu@gmail.com.

Previous editions of our Journal may be found online at ulrnyu.org.

This journal is published by students at New York University and NYU is not responsible for its contents.

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Letter from the Editor Dear Reader, On behalf of the editorial staff of the NYU Undergraduate Law Review, I am delighted to present the first edition of the fourth volume of our Journal’s printed publication at New York University. Now that we are at the culmination of our first fully virtual semester – and my first as Editor-in-Chief – I am very proud to showcase the extraordinary work of our current Executive Editors, Associate Editors, and Staff Writers. Our team demonstrated commendable spirit, tenacity, and creativity while facilitating legal dialogue for our undergraduate community and beyond. Moreover, all of this work was completed in the middle of adjusting to new formats of undergraduate education, organization participation, extracurricular commitments, and more. I am very honored to lead and work with this exceptional team, and I would like to extend a heartfelt thank you to our incredible business team and to NYU faculty for their continued work and support. Without your efforts, our Journal would not exist.

This semester, the NYU Undergraduate Law Review experienced heavy interest in our Journal and a significant expansion in staff members. In addition to our print pieces, our community has begun the foundational work and preparation for the launch of our new online forum, the Legal Public Square. When fully launched, the Legal Public Square will expand the breadth of our legal content through highly accessible short form pieces. We hope to continue expanding our coverage, and I am very excited to see all that our team produces in the years to come.

It is our pleasure to share with you four articles that cover a broad range of issues. From proposing a court-issued integration mandate challenging housing segregation in the United States, to examining the constitutionality of President Trump’s executive order banning TikTok, to analyzing the conception of stare decisis within Clarence Thomas’s Gamble concurrence, to discussing the justness of the continued usage of American military tribunals, our diverse subject topics and analyses are the work of an equally diverse team of undergraduate students. In this fall’s edition, we are proud to feature a writer from Siena College, in addition to articles authored by our Staff Writers at NYU. To view all of our editions, please visit our website: ulrnyu.org.

We hope to continue fostering curiosity, enthusiasm, and intellectual rigor within our wonderful undergraduate community with this publication and the many to follow. Most importantly, I hope everyone continues to be safe and healthy during these challenging times.

Sincerely, Iris Zimmer Editor-in-Chief

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The Undergraduate Law Review at New York University

Editorial Team Editor-in-Chief Iris Zimmer

Executive Editors Carley Felzer

Daniela Gonzalez-Roman

Brett Cohen

Nicole Chiarella

Amanda McBain

Pacy Yan

Associate Editors Asra Ahmed

Merly Lopez

Aditya Anmol

Ruchi Marfatia

Ravtegh Aurora

Kaci O’Donnell

Sarika Bhattacharjee

Marialejandra Portal

Sydney Brinker

Carisha Pranyoto

Alicia Dai

Manaal Shareh

Siddharth Datar

Manning Snyder

Anna Gyori

Sohini Surapaneni

Jake Everett Helpley

Alexis Echarri Tong

Shri Iyengar

Maria Tzialla

Yun Yeong Jeong

Eric Wu

Jack Katz

Alexis Yribarren

Chloe Kim

Faith Zamora

Jungin Kim

Leonard Zhu

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Towards Dismantling Housing Segregation in the United States: A Proposal for a Court-Issued Housing Integration Mandate Megan Schwartz New York University

I.

Introduction

Local, state, and federal policies beginning in the 19th century have embedded housing segregation into the structural fabric of the U.S. To this day, deliberate state efforts have been written off as de facto, or “that’s just the way it is,” segregation. In reality, this state-sanctioned segregation was born out of racially hegemonic structures that date back to the enslavement of Black people in America.

The effects of this segregation have been devastating, deepening racial divides and facilitating much of the profound economic and social inequality that exists today.1 Housing discrimination jurisprudence has evolved to become more cognizant of the often-subtle nature of housing discrimination. However, the current standard provides no avenue to remedy existing housing segregation. This current standard was established in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc (2015), where the Supreme Court ruled that disparate impact claims — in which evidence of a disproportionate impact on minority groups can be sufficient evidence to prove harm — are acceptable under the Fair Housing Act of 1968.2 However, the Court limited the purview of disparate impact to apply only to specific “artificial, arbitrary, and unnecessary barriers” on equal protection rights, a standard set in the landmark employment discrimination case, Griggs v. Duke Power Co (1971).3 It also called for a distancing from “racebased consideration”4 and the elimination of “racial disparities through race-neutral means.”5 This article finds two major deficiencies with the standard set in Inclusive This article focuses specifically on the separation along racial lines of white and Black individuals and families in housing. This approach is not intending to undermine the discrimination and segregation faced by Latinos, Asians, or any other ethnic group in the United States. It is narrowly tailored to address Black Americans for two primary reasons: (1) Black Americans have faced housing discrimination and have been subject to residential segregation on the largest scale of any minority group, allowing this analysis to take a national, rather than case-by-case approach to the systemic issue of residential segregation; and (2) in order to tighten the scope of the analysis. It is quite possible that some of the arguments raised in this article could apply to other racial or ethnic minority groups; however, this article will not go so far as to interrogate that applicability or come to any conclusions about it.

2 Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015).

3 Id. at 14.

4 Id. at 16.

5 Id. at 17. Emphasis added.

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Communities. First, the Court has yet to consider the question of systemic housing segregation, which is distinguishable from housing discrimination as even if housing discrimination is less prevalent, the lasting effects of housing discrimination manifest in the systematic separation of Black and white Americans. Second, race-neutral means do not sufficiently address and undo the long history of racial segregation in the U.S. As such, this article will propose a court-issued integration mandate to combat race-based housing segregation, in which affirmative action by local and state governments is required to achieve integration and remedy the social, cultural, economic, and political disadvantages that Black Americans have endured as a result of residential segregation.

Section II of this article will outline the trajectory of housing discrimination jurisprudence in the U.S. Section III will discuss key contexts and prerequisites that are necessary before any mandate like the one proposed by this article could come into effect. Section IV will examine the constitutionality — or, more specifically, the unconstitutionality — of housing segregation. Section V will propose a new mandate for housing segregation and provide an argument for why this mandate would be more effective in achieving housing integration and racial equality than the current standard. Finally, Section VI will discuss specific guidelines for remedial measures in response to this mandate and the constitutional justifications for them when necessary.

II.

Housing Discrimination Jurisprudence

This section will provide a brief history of the Supreme Court’s housing discrimination jurisprudence in order to establish the current judicial standards for adjudicating housing discrimination cases. Notably, housing segregation is not a part of this historical background — a fact which provides part of the basis for this article’s argument. This section will seek to illuminate the deficiencies in the housing discrimination standards in addressing the issue of segregation.

A. Applying the Fourteenth Amendment to Housing Discrimination: Buchanan v. Warley, Shelley v. Kraemer, and Jones v.

Alfred H. Mayer Co. Housing discrimination was first tied to the guarantees of the Fourteenth Amendment in Buchanan v. Warley (1917). The plaintiff, Mr. Buchanan, was a white man living in Kentucky who wanted to sell his property to a Black man.

The defendant objected, citing Mr. Buchanan’s violation of a City of Louisville ordinance that made it unlawful for a Black person to move into a predominantly white neighborhood.6 Buchanan alleged that the ordinance was impermissible under the Fourteenth Amendment’s implicit right to dispose of property freely.

The majority upheld that the right to property included “the right to acquire, use, and dispose of [one’s property].”7 In deeming the City of Louisville ordinance Buchanan v. Warley, 245 U.S. 60 (1917).

Id. at 74.

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unconstitutional, the Court determined that the ordinance — in prohibiting the sale of property to Black buyers — was in “direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.”8 Shelley v. Kraemer (1948) was the first Supreme Court case to establish the unconstitutionality of state enforcement of racial covenants — agreements excluding certain races from specific residential areas. The case involved a racial covenant constructed and signed by 30 property owners in a St. Louis neighborhood prohibiting the occupancy of any of the properties in the vicinity by “‘any person not of the Caucasian race.’”9 In 1945, the Shelley family, who were African American, moved into the neighborhood covered by the covenant. Kraemer, the respondent, called for judicial enforcement of the racial covenant and the immediate eviction of the Shelleys from their home. Judicial enforcement was granted; however, the majority in Shelley reversed the decision of the lower courts, stating that, “in granting judicial enforcement of the restrictive agreements in these cases, the States ha[d] denied petitioners the equal protection of the laws,” and the action was thus unconstitutional.10 Barrows v. Jackson (1953) extended the unconstitutionality of enforcing racial covenants to co-covenanters who broke the covenant.11 It is important to note, however, that while the Court struck down state enforcement of the covenant, it did not strike down the covenant itself, saying that the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful” it may be.12 It wasn’t until 1968 with Jones v.

Alfred H. Mayer Co. that the Court determined that the federal government could ban private practices that involved housing discrimination.13

B.

Disparate Treatment Liability

Housing discrimination jurisprudence has seen two overarching theories of liability: disparate treatment and disparate impact. Disparate impact will be discussed later in this article, but disparate treatment is the unequal treatment of an individual or group of people based on an identifying trait such as gender, sexual orientation, disability status, age, or race. Racial discrimination has a long history of being adjudicated within this framework, with varying levels of success for the subject of the discrimination.

Disparate treatment liability in racial discrimination cases requires the courts to find that the policymaking body intended to discriminate against the racial group in question. Village of Arlington Heights v. Metropolitan Housing Co. (1977) made this formulation of liability applicable to housing discrimination cases. In this case, Metropolitan Housing Co. applied to the Village of Arlington Heights to have a Id. at 82.

Shelley v. Kraemer, 334 U.S. 1 (1948). Citing the racial covenant enacted for properties on Labadie Avenue in St. Louis, Missouri.

10 Id. at 20.

11 Barrows v. Jackson, 346 U.S. 249 (1953).

12 Id. at 13 13 Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) 8 9

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parcel of land that they were planning on developing into townhouse units rezoned from single-family classification to multiple-family classification. The townhouse units were intended for low- and moderate-income tenants. After the Village denied their rezoning request, Metropolitan Housing Co. filed suit, alleging that the denial was discriminatory on the basis of race.14 In deciding for the Village, the Court established disparate treatment as the primary focus of their adjudication of the facts, saying that “proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”15 The Court further noted that the burden to prove discriminatory purpose rested upon the respondents in this case, Metropolitan Housing Co.16 Importantly, the Court addressed the issue of disparate impact saying that while evidence of disparate impact may be relevant, it is not enough to prove that a practice or policy is discriminatory in nature.17 Discriminatory intent is often difficult to prove, however. Few government officials admit when their actions are motivated by racism rather than commitment to the public good, and beyond admission by those involved, there is little contextual evidence that the courts have deemed strong enough to amount to a discriminatory purpose.

C.

Disparate Impact Liability

Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (2015) established disparate impact claims as cognizable under the Fair Housing Act of 1968 (FHA), effectively applying that form of liability to housing discrimination cases. The case involved the distribution of lowincome housing tax credits by state agencies to developers. The program required states to develop specific criteria for the allocation of the tax credits, and Inclusive Communities Project (ICP) alleged that the Texas Department of Housing and Community Affairs had distributed too many tax credits in already predominantly Black, inner-city areas and not enough in predominantly white, suburban areas.

The ICP claimed that this was discriminatory and perpetuated segregated housing patterns in affected neighborhoods. The ICP asked that the department modify its selection criteria to ensure more balanced allocation of the tax credits.18 The case was brought under a disparate impact theory of liability, which the Court defined as having three main requirements. First, the plaintiff has to prove that the “challenged practice caused or predictably will cause a discriminatory effect” on a specific minority group.19 Second, the defendant has to “prov[e] that the challenged practice is necessary to achieve one or more substantial, legitimate,

14

Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977).

Id. at 265.

16 Id. at 271.

17 Id. at 266.

18 Texas, supra note 2, at 4.

19 Ibid.

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nondiscriminatory interests.” Finally, the plaintiff can prevail if they establish that the defendant’s interest can be achieved using less discriminatory means.21 Before this case, however, the Court had never applied a disparate impact theory of liability to housing claims. The Court based their decision to find disparate impact liability cognizable under the FHA off of a textual analysis of Section 804(a) of the act, which made it unlawful “to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race.”22 The Court took the phrase “otherwise make unavailable” as representing the “consequences of an action rather than the actor’s intent.”23 As such, the Court concluded that the FHA did not require that discriminatory intent be evident in order to prove that a discriminatory practice exists. Instead, the showing of an adverse effect on minorities caused by the challenged practice is enough to initiate a claim of discrimination.

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i.

The Casual Connection Requirement

However, even as the Court’s decision made disparate impact claims justiciable, it simultaneously narrowed the scope of these claims. First and foremost, the Court is clear in Inclusive Communities Project, Inc. that a prima facie case for disparate impact is not met by simply showing that there is a racial disparity of some kind. The Court required there to be a direct “causal connection” between the racial disparities and the specific policy or action in order to establish a prima facie case for disparate impact.24 Part of the purpose of this restriction was to ensure that no entity was “held liable for racial disparities they did not create.”25 If the goal is integration, however, this framework is flawed for two reasons: (1) it assumes that the entity had no hand in creating the disparities present if there is no direct causal link and (2) it only allows specific discriminatory practices to be challenged. Federal, state, and local policies that have since been overturned, but whose segregatory effects remain alive and prosperous, cannot be successfully litigated under a disparate impact theory of liability. Thus, state-imposed, systemic segregation has few opportunities to be rectified. ii.

The Persistance of Intent

The Court further limited the effectiveness of its disparate impact standard by saying that “housing authorities and private developers [must] be allowed to maintain a policy if they can prove it is necessary to achieve a valid interest.”26 This essentially incorporates the need to determine intent back into the standard 20

Id. at 5.

Ibid.

22 42 U.S.C. § 3604 (1968). Emphasis added.

23 Texas, supra note 2, at 9.

24 Id. at 16.

25 Id. at 15.

26 Texas, supra note 2, at 16 21

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for adjudicating housing discrimination claims. This is because governments and agencies often justify policies that perpetuate or worsen segregation under other, “nondiscriminatory” pretenses — most of which are themselves a result of deeply rooted discrimination and segregation. The facts of Village of Arlington Heights v. Metropolitan Housing Co. illustrate exactly how government officials can backdoor in discriminatory policies under the pretense of a legitimate government claim. Metropolitan Housing Co. had asked for a specific area of the Village to be changed from a single-family to a multiple-family zoning classification. Singlefamily apartments were more frequently occupied by whites, whereas multiplefamily apartments were more frequently occupied by Black residents. The Village denied that request, and the Supreme Court upheld the decision. The Court was not utilizing a disparate impact framework in this case — in fact, they explicitly rejected this framework, — and they instead pinned their analysis on the purported purpose behind the Village’s denial of the rezoning request. The Village claimed that the reason they denied the rezoning application was to “protect property values and the integrity of the Village’s zoning plan.”27 The Court cited the Village’s history of maintaining a single-family classification in that specific area as proof that this was a legitimate interest.28 However, a history of zoning a particular way does not mean that the decision to continue zoning that way is not motivated by racial antipathy or that the practice does not have an ultimate effect that is discriminatory. Village hearings about the proposed rezoning even elicited testimony from community members, emphasizing the racial implications of that rezoning (i.e., more Black families moving into the area) as a reason not to rezone.29 Even though the Village was aware of the racial implications of this zoning decision, the Court still deemed the consistency with which these zoning preferences had been applied as sufficient to demonstrate that the move was not discriminatory and that a nondiscriminatory government interest was being achieved.

Many other policies have been justified under similar rationale that changing zoning classifications will undermine the property value of nearby homes or cause an increase in crime rates in the area. These justifications are, of course, rooted in racist sentiments, and to the extent that they are true, those differences exist as a result of the long history of segregation in the U.S. and socioeconomic disparities between Black and white Americans. If public officials can justify discriminatory policies by citing these interests, the problem will continue to compound upon itself.

This creates a system in which governments increase the disparity between white and Black Americans by instituting policies that rely on the segregated system and, as a result, further advantage white citizens. iii.

Race-Neutral Means

The Court in Inclusive Communities Project, Inc. also commented on the nature of remedial measures for discriminatory policies, specifically instructing that 27

Arlington, supra note 14, at 259.

Id. at 269.

29 Ibid.

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they be “race-neutral.” The Court warned that explicitly using race in government policies as a preemptive measure might constitute a constitutional violation because it would “tend to perpetuate race-based considerations rather than move beyond them.”30 The Court clarified this instruction by saying that the “mere awareness of race...does not doom th[e] endeavor at the outset,” but that local housing authorities must use “race-neutral tools” to achieve their diversity goals.31 Once a remedial measure reached the point of imposing a racial quota or target, the Court warned that it would be on precarious constitutional grounds.

When the purpose of a lawsuit is to attack a specific discriminatory practice, this framework makes sense. A finding for the plaintiff in such a lawsuit requires the elimination of a specific discriminatory practice. In other words, it requires the defendant to make race-neutral what was previously race-conscious. This framework has been successful in eliminating some discriminatory practices, but, by its nature, it cannot address structural inequality. Structural inequality cannot be defined solely by the most evident of its constituent parts. Individual instances of discrimination, among other practices, plant the seeds for inequality, but the inequality we see today is a result of years of racialized zoning, lending, renting practices, etc. As such, some of the practices that contributed to the segregated system we have today were eradicated a long time ago, but their impacts remain alive today in the form of structural inequality and limited access. Attacking the practices currently furthering the segregated system would only scratch the surface of the problem. An effective standard will have to possess the capability of reaching the underlying causes of segregation, beyond those which are easily discernible.

III. Contextaulizing the New Mandate While disparate impact liability is important and should remain in place for isolated housing discrimination cases, it is too limiting to effectively move towards an integrated society. This article will argue for the judicial recognition of housing segregation as a constitutional violation requiring immediate action and propose a new, affirmatively driven and race-conscious standard to address the issue.

A.

Housing Discrimination vs. Residential Segregation

An important distinction that this article seeks to make is that between discriminatory practices and residential segregation. Often, discriminatory practices lead to racial segregation; however, discriminatory practices are not the only actions and practices that result in segregation. Racial covenants — though arrived at privately among homeowners — prevented many Black families from moving into predominantly white areas in the early to mid-20th century.32 Segregation is the culmination of all of these practices — both privately and publicly initiated — which result in the systemic separation of Black and white homeowners and renters.

The distinction between housing discrimination and housing segregation is 30

Texas, supra note 2, at 16.

Ibid.

32 Richard Rothstein, The Color of Law (New York: Liveright Publishing Corporation, 2018).

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key to this article’s argument in that its goal is to focus on the latter. The illegality of housing discrimination is well established. However, housing discrimination claims, while sometimes successful, only attack specific practices happening at that moment in time. Furthermore, remedies for housing discrimination are limited primarily to stopping the discriminatory practice. While stopping a discriminatory practice is evidently beneficial, the most it will ever do is halt the racial separation that resulted from that particular challenged practice. As a result, housing segregation remains static; it can worsen through discriminatory practices, it can improve through remedial policy measures, but the net result is that not much changes. In order for housing segregation to become a phenomenon of the past, segregation must be identified as the core problem, and federal, state, and local governments must take active measures to remedy the problem. This article adopts this imperative and suggests that a class-action lawsuit targeted at segregation rather than discrimination is necessary and that a decree similar to that posed in Brown v.

Board of Education is the necessary solution if we hope to achieve integration on a national scale.

B. Setting up the Mandate: The Prerequisite Class-Action Lawsuit In order for this issue to come before the courts, multiple subjects of the adverse impacts of housing segregation must first file a class-action lawsuit against the towns/cities in which they reside where housing segregation is present. In adjudicating the legal issue, the courts should recognize the role of the government in creating all existing segregation and lay out an explicit decree of the illegality of residential segregation as detailed by the remainder of this article. While this issue is not currently before the courts, this article seeks to (1) argue that such litigation is necessary and ought to be brought in order to interrogate residential segregation as a whole rather than in the form of its individual constituent parts and (2) suggest a framework for the legal decision resulting from that theoretical case that recognizes the magnitude and urgency of the problem and presents a workable solution to it.

IV.

Establishing the Unconstitutionality of Housing Segregation

Before any specific mandate can be issued by the courts, the unconstitutionality of housing segregation must be established. This section will seek to do just that.

Subsection A will argue for the abandonment of a de jure vs. de facto framework due to the state’s continuous involvement — both directly and indirectly — in creating and perpetuating housing segregation. Subsection B will adjudicate housing segregation under the 14th Amendment’s Equal Protection clause.

A.

Moving Away from the De Facto v. De Jure Framework

There is a legal and social tendency in the United States to categorize forms of segregation as either de jure — legally prescribed segregation — or de facto — separation as a product of other factors, not by legal measures. This is problematic in many contexts, but as an excuse for residential segregation, it has

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been particularly effective and egregious. It is problematic because it instills the idea that housing segregation is a product of uncontrollable, race-neutral, and privately-motivated factors, whereas, in reality, all housing segregation has been the product of racially charged and government-supported — either tacitly or explicitly — action.33 The problem with employing a de facto vs. de jure framework for residential segregation is that it is inherently short-sighted; if the root causes of segregation are not exceptionally clear and straight-forward, segregation will be classified as de facto. This is true in both a social and legal sense. As Justice Powell argued in his partly concurring and partly dissenting opinion in Keyes v. School District No. 1 (1973), current definitions of de jure segregation in which courts must determine the “subjective intent” of government officials necessarily leads to litigation that “will be fortuitous, unpredictable and even capricious.”34 Although the Court found disparate impact claims applicable to housing discrimination cases in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc, the standard set forth in Inclusive Communities advocated for the use of race-neutral means only to achieve fairness in housing.35 Most importantly, it required a specific policy or identifiable act to be presented in order to have a prima facie case for housing discrimination. This makes the long, complicated, and interconnected history of discriminatory federal housing policies, white flight, socioeconomic differences, individual racism, and discrimination in real estate and loaning practices essentially free from judicial scrutiny.

In seeking to interrogate that framework, this article will not use the classifications of de facto and de jure segregation to draw distinctions between different types of racial separation. Rather, it will assume, based on the United States’ long history of discriminatory and racist practices in housing that all segregation is the result of governmental action, or, at the very least, was tacitly supported through the inaction of federal, state, and local governments.

B.

Adjudicating Housing Segregation Under the Fourteenth

Amendment

The Fourteenth Amendment prescribes the equal protection of all people under the law. Housing discrimination is a somewhat straight-forward case for equal protection. Discriminatory practices prevent minority homeowners from occupying the same residential spaces as white homeowners either due to an outright refusal to rent or sell to minority applicants or the more subtle, but equally effective practice of systematically making it more difficult for Black applicants to afford or feel at home in the housing unit. Housing segregation is the product of a long history of these practices and others that have, over time, provided for the separation of racial groups in housing. As a result, the equal protection claim is less in the individual cases of racial separation and more in the socioeconomic, political, and social 33

See The Color of Law by Richard Rothstein, The Origins of the Urban Crisis by Thomas J. Sugrue, and The Fight for Fair Housing edited by Gregory Squires, among many other texts.

34 Keyes v. School Dist. No. 1, 413 U.S. 189 (1973). Powell, J, opinion concurring in part and dissenting in part.

35 Texas, supra note 2, at 42.

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disenfranchisement of Black Americans that results from systematic exclusion and separation.

Housing segregation has trapped many Black Americans in a vicious cycle of economic immobility that has widened wealth and inequality gaps over time.36 The intentional and persistent overcharging, overtaxing, and overcrowding of Black residents in the 20th century in particular resulted in Black families having smaller disposable incomes and fewer savings, thus increasing wealth gaps among Black and white Americans and limiting Black Americans’ chances of future upward mobility.37 The smaller disposable as well as the unwillingness of local and state governments to invest resources into predominantly Black-occupied areas led to fewer amenities,38 underfunded schools, and unequal distribution of health services.39 This resulted in disparities in education, employment, healthcare, etc., which have caused Black Americans to be systematically disadvantaged as compared to white Americans. These effects are similar to those recognized by the Court to be associated with segregation in schools in their decision in Brown, only magnified. Housing segregation “deprives [Black Americans] of some benefits”40 that whites are privileged to. It further entrenches hegemonic structures of race in the cultural ideology of the U.S. It systematically makes it more difficult for Black Americans to achieve the same economic, political, and social statuses as white Americans. Systematic racial separation in housing is “inherently unequal”41 and is thus a violation of the Equal Protection clause of the Fourteenth Amendment.

V.

The Mandate

This section will propose an affirmative standard for integration to be used on all localities with a significant racial imbalance. Subsection A will present the standard in Brown v. Board of Education, which provides some basis for the standard this article will propose. Subsection B will present the new proposed integration mandate. Subsection C will make an argument for what should constitute a prima facie case for housing segregation under this new mandate.

A.

The Decree in Brown v. Board of Education

The adjudication of housing segregation under the Fourteenth Amendment makes it clear that Black Americans are systematically disadvantaged and subordinated under the system of housing segregation. As such, the courts have an imperative to mandate immediate desegregation and integration measures in order to remedy the constitutional offense. The Court grappled with a similar issue in 36

Id. at 154.

Ibid.

38 Id. at 171.

39 Gregory Squires, “Demobilization of the Individualistic Bias: Housing Market Discrimination as a Contributor to Labor Market and Economic Inequality.” Sage Publications, Inc. (January 2007).

40 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

41 Id. at 495.

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Brown v. Board of Education (1954), in which they issued a decree to school boards requiring them to initiate desegregation efforts. The execution of this decree was not always consistent, but this article will use the basic framework of the Brown decision with certain modifications to form the housing integration mandate. As such, this section will provide a brief overview of what the Court mandated in Brown, and what it didn’t.

Brown v. Board of Education (1954) overturned Plessy v. Ferguson’s “separate but equal” doctrine, concluding that segregated schools “deprived [Black students] of the equal protection of the laws guaranteed by the Fourteenth Amendment.”42 In Brown v. Board of Education (2), the Court stated that in districts with school segregation, local authorities must “effectuate a transition to a racially nondiscriminatory school system,”43 effectively mandating the desegregation of public schools. Subsequent court cases clarified the Court’s decision in several key ways.

In Green v. County School Board of New Kent County (1968), the Court found the goal of the mandate to be the “transition to a unitary, nonracial system of public education.”44 However, it clarified that while the goal was to have nonracial public school systems, the methods employed did not have to be race-neutral. The Court ruled that New Kent County’s plan to simply provide “freedom of choice” was not sufficient.45 Instead, the Brown decision charged the school board “with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”46 In Swann v. Charlotte-Mecklenburg Board of Education (1971) the Court expanded the constitutionality of race-conscious means to achieve desegregation by approving the use of racial quotas on a limited and flexible basis. As a starting point for the formation of remedial measures, the Court deemed these ratios acceptable.47 Desegregation efforts after Brown were locally based and district-wide but often lacked coordination between districts. This made sense at the time for two reasons: (1) the segregation was more explicit and localized, and many districts had completely separate dual systems to accommodate their desire for segregation and (2) larger-scale efforts would be less feasible and might require students to attend a school that was far away from where they lived. Although these reasons were not without merit, this microlevel action gave the national desegregation effort a relatively low ceiling; school districts can only achieve so much on their own.

B.

The Mandate

This article argues that the Court, when presented with the issue of housing segregation under the 14th Amendment, should issue a mandate that requires that 42

Ibid.

Brown v. Board of Education of Topeka, 349 U.S. 294 (1955).

44 Green v. County Sch. Bd. of New Kent County, 391 U.S. 430 (1968).

45 Id. at 440.

46 Id. at 438. Emphasis added.

47 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).

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local and state governments take affirmative and coordinated action to rectify racial imbalances in housing patterns. Local and state governments would be required to employ race-conscious methods to work towards the ultimate goal of achieving an integrated system.

C.

Defining a Prima Facie Case for Housing Segregation

The first question will be who is required to adhere to the mandate and who is susceptible to court intervention if they do not develop an adequate plan to integrate their communities. Individual localities will be held responsible for existing segregation in their towns and cities. However, the question that remains is what constitutes a prima facie case for housing segregation.

The Supreme Court has warned against allowing mere racial imbalances to qualify as prima facie showing of housing discrimination. This is because a causal relationship is required to hold the offending entity accountable, and often, individual developers or real estate agencies are not solely responsible for the racial imbalances in housing. Thus, the plaintiff would need additional proof to show that the actions of the developer or agency directly caused the racial imbalance present. While establishing a causal relationship is important in such cases, this article contends that mere racial imbalance is enough to make a showing of a prima facie case of housing segregation against the government. This framework is largely adopted from Justice Powell’s concurring opinion in Keyes v. School Dist.

No. 1, Denver (1972). Keyes came after the Court’s decision in Brown v. Board of Education and required the Court to decide whether the entire Denver, Colorado school system was segregated and subject to the Brown desegregation decree if specific sections of it were operating an explicitly segregated system. The Court determined that “a finding of intentionally segregative school board actions in a meaningful portion of a school system...creates a presumption that other segregated schooling within the system is not adventitious,”48 thus creating a prima facie case of “unlawful segregative design.”49 In his opinion concurring in part and dissenting in part, Justice Powell took issue with the requirement that the petitioner show segregative intent to establish a prima facie case of unlawful segregation. Arguing that the “affirmative duty” required by Brown to desegregate schools inherently “required these districts to alleviate conditions which, in large part, did not result from historic, state-imposed de jure segregation.”50 The responsibility fell on the school authorities to remedy the segregation it created, but also the segregation it supported and allowed to occur.

As such, Powell argued that “where segregated public schools exist within a school district to a substantial degree, there is a prima facie case that the duly constituted public authorities...are sufficiently responsible to warrant imposing upon them a nationally applicable burden to demonstrate they nevertheless are operating a 48

Keyes, supra note 34.

Id. at 208.

50 Id. at 222.

49

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genuinely integrated school system.”

This is the prima facie requirement that should be imposed on housing segregation cases. If this kind of standard is not used, the systemic aspects of the problem will never be uprooted, and inequality stemming from housing will continue to exist and prosper. Questions may still remain as to the extent to which segregation exists or the remedial measures that would be required to fully integrate, however, the standard must be set in this way to ensure that every racially imbalanced community is subject to the same questions and standards, regardless of whether or not the courts can trace their actions back to the notoriously hard-toprove intent behind them.

51

VI. Remedial Measures This article will not suggest or evaluate specific policy-based remedial measures but will instead suggest specific parameters for these remedial measures which will expand upon, limit, and above all specify the requirements of the mandate itself. Subsection A will establish a regionally focused geographical component to the mandate as opposed to a strictly local one. Subsection B will argue that race-conscious means are necessary to achieve the stated goal. It will examine the constitutional justification for race-conscious means as well as provide restrictions on this requirement in order to ensure that the solutions are practical, feasible, and cognizant of the multiplicitous responsibilities of local governments.

And finally, subsection C will outline the ultimate goal of the mandate as well as provide conditions under which the mandate will end.

A.

A Regional Approach

A regionally based adjudication of progress is needed for several reasons.

First, it would allow for a clearer marker of progress. This is a key way in which housing segregation is not comparable to segregation in public education. Before — and for a long time following — the Court’s decision in Brown, schools were operating dual systems in which they created blatantly separate schools within the same district for Black and white students. As such, when the Supreme Court required schools to integrate, much of the work could be done within school districts by eliminating the clear racial divide in enrollment. Housing segregation is not so sharply defined. As a result of state action, towns and cities are often extremely segregated, but the segregated housing patterns are not always clearly delineated within that specific town or city. Sometimes localities are so segregated that one town will consist almost exclusively of a single racial group. In such cases, integration efforts would be futile if they were to exist only within the borders of that town.

White flight has been a huge contributor to this phenomenon, and white flight was the result of federal housing policies. Blockbusting — the practice of convincing white homeowners to move due to fear of racial integration and then the subsequent buying of those owners’ homes for less than market price — 51

Id. at 224.

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capitalized on racial antipathy to begin the process of white flight. Because the Federal Housing Administration engaged in redlining — denying loans to Black renters or homeowners because of their race — Black Americans could not afford to live elsewhere, and the systematic overcharging of Black tenants led to the deterioration of those areas. This led many white families who were untouched by these discriminatory practices to blame their Black neighbors for the deterioration of their neighborhood and move to suburban areas to “escape” these conditions. As such, many suburbs in the U.S. are predominantly white and many metropolitan areas are more racially diverse or have a larger percentage of Black residents.52 Adopting a regional rather than strictly local approach will allow for the integration of areas with an overwhelming proportion of a single racial group.

Furthermore, grouping cities with their surrounding suburbs will allow regions to directly undo some of the practices that led to the current divide between city and suburb.

The adoption of a regional approach would notably require coordination among local governments. Unlike the circumstances in Brown where each school district was primarily responsible for the segregation within their districts, housing segregation is harder to pin down to a single town or village. As such, any effort to take a regional approach will require local governments to coordinate efforts to effectuate integration between communities by making feasible and encouraging more balanced racial compositions of neighborhoods, cities, and towns within the region. Given the centrality of this interconnectedness to the success of integration efforts, the courts should be careful to allow coordinated efforts among local governments, so long as it does not substantially interfere with the other duties of government.

B.

Using Race-Conscious Means

Necessary to any judicial mandate to desegregate is the employment of some form of race-conscious means. By definition, the problem is based on race, and the solution must be cognizant of this. However, the extent to which measures can be race-conscious has been a source of controversy for the Court. The Court has consistently agreed that all race-conscious measures must be subject to strict scrutiny, but which actions pass judicial review, and which don’t remain disputed.53 Evidently, the Court would review specific measures on a case-by-case basis as they are brought to court. However, this article will provide a brief analysis of the broad category of these remedial measures under a strict scrutiny standard so as to provide justification for situating such race-conscious means as so central to the mandate itself.

The first requirement of strict scrutiny judicial review is to evaluate the burden the proposed action places on the affected party — presumably a white homeowner or renter in this context. This cannot be evaluated in the abstract, 52

Rothstein, supra note 32. See Chapter 6, “White Flight.”

See Grutter v. Bollinger, 539 U.S. 306 (2003), Gratz v. Bollinger, 539 U.S. 244 (2003), and Fisher v. University of Texas at Austin, 570 U.S. 297 (2013).

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however, it should be noted that it is relatively unlikely that measures truly tailored to achieve integration will substantially burden any white residents. General disdain for integration efforts or the disruption of social norms should not be construed as to pose a substantial burden. Remedies that encourage white homeowners to move into predominantly Black areas or the removal of barriers to obtaining housing are unlikely to rise to this level either. Measures such as privileging Black candidates over white ones in public housing would feasibly pose a substantial burden on the white applicants. However, it is likely that white applicants would go on to fail the balancing test against the government’s interest.

If a substantial burden is identified, the state must prove that it has a compelling interest to impose that burden and that its method of doing so is narrowly tailored to fit that interest. These elements can — to a certain extent — be evaluated in broader terms, and this evaluation provides significant justification for the use of race-conscious means to achieve integration.

The compelling state interest would be articulated by the standard set in a case that mandates integration. In such a case, there could be no question that integration measures which seek to remedy a constitutional offense would amount to a compelling state interest. Furthermore, integration can scarcely be possible through the use of race-neutral means only. Race-neutral means are the product of anti-discrimination lawsuits and importantly protect against these kinds of invidious encroachments. However, race-neutral means cannot fix a problem that is the product of years of race-conscious policy and racial antipathy. The Court recognized the impossibility of desegregation efforts without the acknowledgement of race in Brown, and the same logic applies here. Race-conscious means are the only means that will achieve the state interest. Specific measures are still subject to further judicial review if it is the case that a different, less intrusive race-conscious measure would achieve the same goal. It is not this article’s contention that local governments should overhaul their entire housing system overnight to achieve integration in a way that harms the general public good.54 However, race-conscious simply means that actions are taken with race in mind, and this can scarcely be held unconstitutional with the prerequisite finding that housing segregation is unconstitutional. A race-neutral remedy is unlikely to remedy the unconstitutional segregation in any substantial way, and as such, most race-conscious remedies that reasonably balance the state’s interest in integration with the general, constant interests of government should pass strict scrutiny judicial review. Given their general ability to pass strict scrutiny in the case of housing segregation, the mandate’s requirement that actors take affirmative steps to dismantle housing segregation is 54

The case-by-case evaluation of whether a remedy is narrowly tailored or presents the least restrictive means cannot be discussed in this article due to the specificity and unforeseeability of the question. However, it is possible that there exists a less restrictive race-conscious alternative to a more impactful race-conscious measure. This would need to be evaluated based on the specific facts of the case. However, this article would suggest that the relative effectiveness of a remedial measure should play a role in the courts' scrutiny and review. The speed with which the method achieves the state interest or the degree to which it successfully integrates regions may be a factor in determining whether a less restrictive method would, in fact, achieve the stated goal in a satisfactory manner.

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grounded in the Constitution.

C.

21

The Ultimate Goal

The ultimate goal of an integration mandate is integration in previously segregated regions. The definition of integration should vary from region to region and be determined by the existing racial make-up of the region as a whole. This article will not propose a specific numerical or proportional requirement that regions should be forced to work towards and meet over time. It will only advise first that the requirement not be numerical as that will likely result in arbitrary goal setting and second that the proportional requirement be tailored to the existing demographic composition of the region pre-integration so as to pose a reasonably achievable goal. Once a region has met that goal, whatever it may be, the mandate would effectively end, and any race-conscious measures would be less likely to pass strict scrutiny judicial review.

VII. Conclusion The argument of this article relies on a lawsuit challenging housing segregation being filed, the lawsuit moving through the judicial system, and the Supreme Court agreeing to see the case. As a result, the deliberations and proposals of this piece are a step removed from the present. However, above all, this article seeks to interrogate the current system and argue that substantial change is needed to do more than place a band-aid on the issue. Housing segregation is by no means the single cause of the racial inequality we see today, but it is a large one. It is also one that — like many others — we are grappling with insufficiently, if at all. And so, while the issues of this article are, as of yet, not before the courts, they seek to provide a framework for the judiciary’s role in dismantling housing segregation’s contribution to current inequalities, and in doing so, seek to establish an imperative for this kind of broadscale grappling with housing segregation.

Adopting this imperative, the Court should establish the unconstitutionality of housing segregation under the Equal Protection Clause of the Fourteenth Amendment. This finding should be succeeded by a nationwide mandate requiring local and state governments to collaborate in order to dismantle the segregated systems they have spent years fostering. Finally, in order to ensure the effectiveness of such a mandate, the Court must authorize collaborative and race-conscious remedial measures.

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Viral Meme or National Security Threat ?

Exploring President Trump’s Actions regarding TikTok Anastasios Zias New York University

I.

Introduction

On August 6, 2020, President Donald J. Trump signed an Executive Order on Addressing the Threat Posed by TikTok, effectively outlawing transactions between TikTok, Inc. (hereinafter “TikTok”) and U.S. citizens on the basis of national security under the International Emergency Economic Powers Act.1 The President signed this executive order to pressure the application’s parent company to sell its domestic operations to a United States based company. In the prior year, the popular social networking platform, owned by the Chinese parent company ByteDance, Ltd. (hereinafter “ByteDance”), had exploded in popularity across the United States and around the world. According to the President, TikTok and its parent company would capture “vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories.”2 Trump went on to justify the order by alleging that, “This data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” This decision was a source of immense controversy; those in favor characterized it as an important step in protecting the privacy and security of Americans, while dissidents viewed it as a politically motivated decision that lacked real justification.

II.

Background A. The Development of the International Emergency Economic Powers Act

Throughout the twentieth century and the world crises that coincided alongside it, Congress increasingly delegated emergency powers to the President through the passage of new statutes. In order to supplement its involvement in World War I, Congress bestowed broad economic authority to the President through the passage of twenty-two statutes between 1916 and 1917. One of these statutes was the Trading with the Enemy Act (hereinafter “TWEA”), which broadly defined “enemy” as “any individual, partnership, or other body of individuals (including corporations), of any nationality, resident within the territory...of any nation with 1

Donald J. Trump, “Executive Order 13942 on Addressing the Threat Posed by TikTok.” The White House (August 2020).

2 Ibid.

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which the United States is at war, or resident outside of the United States and doing business within such a territory…”3 The TWEA gave the President sweeping economic control over private transactions between the United States and anyone labeled as its “enemy.” The first four sections of the Act gave the President extensive powers to limit trade, communications, and transportation of those deemed to be enemies.4 The next major crisis - the Great Depression - required broad intervention by the Federal Government to prevent further economic deterioration. . In response, Congress expanded the scope of the TWEA to provide the President with the ability to declare a state of emergency outside of wartime. Congress again expanded the TWEA during World War II, adding a “vesting” power which gave the President the ability to permanently seize property “in which any foreign country or foreign national had an interest.”5 By the 1970’s, Congress focused on regulating executive power following Committee findings that the United States had been in a state of emergency for over forty years. Amidst this, Congress passed the National Emergencies Act (hereinafter “NEA”) in 1976 and the International Emergency Economic Powers Act (hereinafter “IEEPA”) in 1977, with the purpose of revising the powers granted to the President under the TWEA.6 The new legislations were intended to provide the President with the authority to regulate economic transactions following the declaration of a national emergency and to place effective limitations on their power. This would be done through the requirement of reporting meant to increase transparency from the Executive and the requirement that the President evaluate the existence of a national emergency annually. However, many have questioned if the changes established through the NEA and IEEPA have done enough to provide oversight of the sweeping power they delegated to the President. While Congress required some oversight (e.g., reporting to increase transparency of actions involving the Acts) there was little done to stop the President from actually using the NEA or the IEEPA.

B.

Uses of the International Emergency Powers Act

Under the IEEPA, the President may exercise their power “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.”7 Since its 1977 codification, the IEPPA has been invoked in at least fiftynine declarations of national emergency.8 The President must declare a national 3

“The International Emergency Economic Powers Act: Origins, Evolution, and Use,” Congressional Research Service (August 2019).

4 Id. at 3.

5 Id. at Summary Page.

6 Ibid.

7 Id. at 10.

8 Id. at 17.

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emergency under the NEA beforehand to invoke the IEEPA. While the IEEPA was intended to target foreign governments, it has also been used against individuals and organizations.

The invocation of the IEEPA has followed some of the nation’s most notable crises. After the Iran Hostage Crisis, President Jimmy Carter signed Executive Order 12170, which invoked the IEEPA for the first time in order to freeze Iranian government assets held in the United States.9 Rather than using a blanket application to a broad set of entities, Carter used the IEEPA in a targeted manner, only focusing on assets held by the Iranian government. In the 1990’s, President George H.W. Bush invoked it by declaring a national emergency that applied to anyone involved in the proliferation of dangerous chemical and biological weapons.10 This marked a shift in the use of the IEEPA, which was first applied only to specific geographic areas. Years later, as part of a trend towards geographically unbound applications, President George W. Bush invoked the IEEPA in a national emergency that applied to “persons who commit, threaten to commit, or support terrorism” following the attacks on 9/11.11 During his tenure, President Obama similarly invoked the IEEPA, after declaring national emergencies in response to threats posed by “transnational criminal organizations” and by “persons engaging in malicious cyber-enabled activities.”12

C. Judicial Commentary on the International Economic Emergency Powers Act Since its introduction in 1977, the Supreme Court has ruled in cases involving the IEEPA on multiple occasions. One of the first cases involving the IEEPA was that of Dames & Moore v. Regan, in which Dames and Moore, two men who had performed work for Iran, sued the United States government, claiming that President Carter had exceeded his statutory and constitutional limits by affecting their judgment against Iran.13 In its own defense, the Federal Government cited the IEEPA as support for its actions. In his majority opinion for the Court, Justice Rehnquist wrote that the Court “declined to conclude that the IEEPA...directly authorizes the President’s suspension of claims for the reasons noted” but that they could not “ignore the general tenor of Congress’ legislation in this area in trying to determine whether the President is acting alone or at least with the acceptance of Congress.”14 Although the Court did not directly conclude on what the IEEPA does and does not authorize, the majority opinion shows that it is important in their eyes to consider whether the President’s actions were in conflict with the delegations of 9

Jimmy Carter, “Executive Order 12170 on Blocking Iranian Government Property,” National Archives and Records Administration (November 1979).

10 “The International Emergency Economic Powers Act: Origins, Evolution, and Use,” supra note 3, at 20.

11 Ibid.

12 Ibid.

13 Dames & Moore v. Regan, 453 U.S. 654 (1981).

14 Id. at 453.

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Congress.

The IEEPA has been challenged on the basis of whether Congress violated the separation of powers in giving the President too much power to legislate. In dealing with the question of whether the non-delegation principle of separation of powers is violated by the IEEPA in the case of United States v. Dhafir, the U.S. Court of Appeals for the Second Circuit reasoned that delegations of authority by Congress are constitutional as long as Congress provides an “intelligible principle” which governs the exercise of the authority. With this, the Court ruled that the IEEPA “meaningfully constrains the President’s discretion” because it requires that the “authorities granted to the President...may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared.”15 The IEEPA has also been challenged on the premise of violating of the Fifth Amendment’s Takings Clause, which prevents the government from taking “private property...without just compensation.” In Marschalk Company v. Iran National Airlines Corporation, the Supreme Court upheld that there was no uncompensated taking associated with the IEEPA based on its purpose, ruling “Neither the purpose the statute was enacted to serve nor its plain language supports such a result.”16 Additionally, individuals with assets blocked under the IEEPA have struggled to frame their case as an uncompensated violation of the Takings Clause in lower courts. Many courts, like the Seventh Circuit of Appeals, have ruled that a temporary blocking of assets under the IEEPA does not constitute a taking as it is a temporary action that does not vest title in the U.S.17 In addition to the claim that the IEEPA violates the Takings Clause, others have argued that the IEEPA violates the Due Process Clause of the Fifth Amendment, which states that no person shall be deprived of life, liberty, or property without due process of the law. In the case of Al Haramain Islamic Foundation v. US Department of Treasury, the Court of Appeals for the Ninth Circuit considered whether the failure by the government to provide adequate notice and an opportunity to be heard violated the foundation’s right to due process.18 In deciding the case, the appeals court used the balancing test to determine if an individual has received constitutional due process, created by the Supreme Court in Matthews v. Eldridge.

The Eldridge Test asks a court to weigh the private property interest of the person or entity and the risk of an erroneous deprivation of the interest through the procedures used with the Government’s interest in maintaining its procedures.19 The appeals court found that the foundation did have a significant property interest but also that “the government’s interest in national security could not be understated.” The court ruled that the failure of the government to provide a summary of the information 15

United States v. Dhafir, 461 F.3d 211 (2d Cir. 2006).

Marschalk Co. v. Iran National Airlines Corp, 518 F. Supp. 69 (S.D.N.Y 1981).

17 Global Relief Foundation Inc. v. Paul H. O'Neill, F. Supp. 2d 779 (N.D. Ill. 2002).

18 Al Haramain Islamic Foundation, Et Al v. U.S. Dept. of the Treasury, Et Al., No. 10-35032 (9th Cir. 2011).

19 “The International Emergency Economic Powers Act: Origins, Evolution, and Use,” supra note 3, at 38.

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at issue to the foundation was a violation of their due process rights, but ultimately deemed it harmless because they believed it would not have affected the outcome of the case. Other district courts have also weighed in on the question of whether or not the IEEPA violates the Due Process Clause of the Fifth Amendment. In Rakhimov v. Gacki, the District Court for the District of Columbia ruled that a foreign individual cannot challenge their designation as a specially designated national under the IEEPA on the grounds of due process if they cannot establish a sufficient connection with the United States to warrant constitutional protections.20

D.

National Security Concerns related to TikTok

In his October 2019 letter to Treasury Secretary Steven Mnuchin, Senator Marco Rubio of Florida wrote, “There continues to be ample and growing evidence that TikTok’s platform for Western markets, including those in the U.S., is censoring content that is not in line with the Chinese Government and Communist Party directives...The Chinese government’s nefarious efforts to censor information inside free societies around the world cannot be accepted and pose serious long-term challenges to the U.S. and our allies.”21 Following this letter, the Senate Committee on Foreign Investment opened up a review of the deal that led to ByteDance’s acquisition of the American company that became TikTok, with one official alleging that the American government had evidence of the app sending data to China. At that point, TikTok had been downloaded over 750 million times, more than Facebook, Instagram, YouTube, and Snapchat. U.S. officials were looking at TikTok’s data collection in the context of a 2017 Chinese national intelligence law, which contained language that required companies to comply with intelligence gathering operations.22 The officials were concerned that China’s government could gain access to data collected from the smartphones of Americans and use it for nefarious purposes.

III. Analysis Based on the precedent of rulings related to the IEEPA and the act itself, President Trump undoubtedly has the ability to use its powers, as long as it is done in a way that does not violate the Constitution. Nevertheless, the President’s ban of TikTok should be viewed as unconstitutional on the basis of it failing to meet the Eldridge Test used as precedent in Al Haramain Islamic Foundation v.

US Department of Treasury, and on the basis of it violating the First Amendment through its limitation of free expression and free speech. Under the Eldridge Test, the private property interest of TikTok was erroneously deprived in a manner that 20

Rakhimov v. Gacki et al., No. 1-02554 (D.D.C. 2019).

Marco Rubio, “Rubio Requests CFIUS Review of TikTok After Reports of Chinese Censorship,” U.S. Senator for Florida, Marco Rubio (October 2019). https://www.rubio.senate. gov/public/_cache/files/9ba023e4-2f4b-404a-a8c0-e87ea784f440/FCEFFE1F54F3899795B4E5F 1F1804630.20191009-letter-to-secretary-mnuchin-re-tiktok.pdf.

22 Jack Nicas, “Teens Love TikTok. Silicon Valley Is Trying to Stage an Intervention,” The New York Times (November 2019).

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did not balance evenly with the government’s interest in doing so, thereby depriving the company of its right to due process under the Fifth Amendment. Although the overall protection of national security constitutes a reasonable governmental interest, the President failed to provide substantial evidence that in this case, the use of TikTok’s platform within the United States was a national security risk.

The Executive Order that intended to ban the platform alleged that TikTok’s “data collection allows the Chinese Communist Party access to Americans’ personal and proprietary information — allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”23 Despite the grave language by the President, little evidence has shown these accusations to be true. In response to the Congressional concerns that preceded the President’s Executive Order, ByteDance insisted that TikTok’s content policies were led by U.S. based teams and denied sharing data with the Chinese government. The company hired U.S. consulting firm Special Counsel to analyze the platform and understand where it sent user data. The firm concluded that user data was stored exclusively on computer servers in Virginia and Singapore and maintained that their team found no way that TikTok could send data to China during the months they conducted their analysis.24 The Executive Order also alleged that “the mobile application may...be used for disinformation campaigns that benefit the Chinese Communist Party, such as when TikTok videos spread debunked conspiracy theories about the origins of the 2019 Novel Coronavirus.”25 The company denied these claims as well and a former content moderator for TikTok (speaking on the condition of anonymity) said publicly that he never received instructions to censor content specifically related to China, countering the assertion that the company was censoring content that was not in line with Chinese Communist Party directives.26 The Committee on Foreign Investment in the U.S., the federal panel that reviews foreign acquisitions of American firms on national-security grounds, also opened a national security review of TikTok in 2019, but has thus far provided little evidence to show that the platform should be actively considered a national security risk. Given that the government has not provided ample evidence that the existence of TikTok constitutes a genuine national security risk and that the company was not provided with an opportunity to provide their own evidence against the claim under a court of law before their private property was deprived, it is reasonable to conclude that the President violated the company’s Fifth Amendment right to due process in signing his executive order.

Per the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”27 Given that it was grounded in the IEEPA, a law made

by Congress, President Trump’s Executive Order violated the First Amendment 23

Trump, supra note 1.

Jack Nicas, Mike Isaac, and Ana Swanson, “TikTok Said to Be Under National Security Review,” The New York Times (November 2019).

25 Trump, supra note 1.

26 Jack Nicas, Mike Isaac, and Ana Swanson, supra note 24.

27 U.S. Const. Amend. 1.

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by attempting to cripple a platform that millions of Americans use for political activism and creativity. According to researchers of political expression on TikTok, the platform serves as a major engine for political engagement amongst youth who are both liberal and conservative.28 The effects of this have been seen in the real world, with the platform having amplified footage of police brutality that led to widespread protests and calls for systemic change, as well as the rise of pro-Trump voices who have found a new way to reach younger voters who are often seen as holding liberal views. The researchers also noted being struck by how quickly political trends on TikTok spread globally, creating solidarity between Americans and the larger global community. If the President’s Executive Order were to go into effect, important domestic and global connections would be severed, weakening the strength of free speech and expression. The spread of issue-based solidarity amongst citizens has led to political movements effecting widespread societal change throughout American history. If TikTok were crippled, millions of young Americans would lose a crucial platform for their own free speech and expression, which could weaken their potential to influence societal change over time. Given that some members of government have expressed concern over the potential for censorship, they would be ignoring the censorship of Americans if they were supportive of the President’s actions banning the platform.

IV.

Conclusion

As of September 2020, a federal judge of the District Court for the District of Columbia sided with TikTok in its lawsuit against the U.S. government, granting an injunction against the ban of the platform that was set to take effect.

In its lawsuit, the company argued that the Executive Order was unconstitutional and had violated both the right to due process and the rights granted by the First Amendment. The judge ruled that while the President holds broad powers under the IEEPA, he overextended his authority by attempting to ban TikTok outright.29 Following the ruling, an agreement was reached by ByteDance with two U.S. based corporations, Oracle and Walmart, to allow a new entity controlled by the American corporations to control U.S. data and content. However, the agreement remains in limbo and has not been finalized.30 As of today, the platform remains active and available for download in the U.S., with the status of a ban remaining unclear.

Further complicating the matter, President Trump will have to leave office in January 2021, having recently lost re-election. His successor, President-elect Biden, has not signaled support for the current stance of the U.S. government towards TikTok and given the vast policy differences between the two men, it appears unlikely that Biden will do so upon assuming office.

The language of the IEEPA in its current form is quite broad in the emergency 28

John Herrman, “TikTok Is Shaping Politics. But How?” The New York Times (June 2020).

Bobby Allyn, “U.S. Judge Halts Trump's TikTok Ban, Hours Before It Was Set To Start,” NPR (September 2020).

30 Jane Li, “TikTok's Deal with Oracle and Walmart Is in Its Own Lame-duck Period,” Quartz (November 2020).

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powers it seems to delegate to the Executive and it may have been reasonable for President Trump to assume that he could ban TikTok by drawing authority from it. This assumption has plagued other Presidents as well, which is why Executive Orders rooted in the IEEPA have had to be adjudicated in the past. This type of conflict could be avoided for parties involved and for the American people in the future, if Congress were to reform the IEEPA by requiring that additional procedures be performed following instances when it is invoked. In order to preserve the original intent of allowing the President to take decisive action in the face of a national emergency, the power to invoke the IEEPA itself should remain with the President. However, any individual or entity who the Act is invoked against should be afforded their right to due process under the Fifth Amendment and be given the opportunity to defend themselves in front of the Senate Committee on Homeland Security and Governmental Affairs, if they are willing and able to do so. This smaller venue would be appropriate for any matter involving the IEEPA because the Senators on this committee focus directly on matters of national security. It would also be logistically difficult to hold a hearing in which all of Congress would be involved, something usually reserved for grave matters like Impeachment. After being presented with the proper testimony and evidence, the Committee would vote on allowing the President’s actions to go into effect. While this would not be a perfect system, it could certainly strengthen the effectiveness of the IEEPA and ensure that it is being used in a fair, necessary way rather than as an abuse of power by the Executive.

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Analyzing Stare Decisis Doctrine in Justice Clarence Thomas’s Gamble Concurrece Micheal D. Potter Siena College

I.

Introduction

The premise of Originalism holds that the United States Constitution was ratified with a fixed meaning. Its language reflects its era, with all substantive changes to be executed via Article V, the constitutional mechanism for adopting Amendments. Richard Nixon, Ronald Reagan, and George H.W. Bush’s Supreme Court appointments of Warren Burger, William Rehnquist, Antonin Scalia, and Clarence Thomas respectively, represented the growing commitment in legal circles to address key political developments in the judiciary. These originalists tended to reject the Hughes Court’s enlargement of federal legislative power post-1937, the Warren Court’s expansion of civil liberties post-1960, and the lack of formal legal methodology among American jurists at the time.

The perception of the Warren Court justifying several of its landmark rulings with social science, “syllogism, metaphysics, or…ill-defined notions of natural justice”1 instead of traditional legal tools led to scathing allegations of judicial activism from originalists. The term refers to “a philosophy of judicial decisionmaking whereby judges allow their personal views about public policy, among other factors, to guide their decisions...”2 If such behavior was left unchecked, originalists claimed the consequences would be perilous: improperly enlarged judiciary power at odds with its traditional role as neutral arbiter; unclear meanings of constitutional provisions; and exacerbated difficulty to reverse such decisions, as only another majority opinion of the Court or an Amendment to the Constitution may reverse a prior Court’s holding.

Upon closer examination, not all originalism is applied equally, particularly with regards to following prior case law. There are times where potential chaos invited by revisiting decades of case law built upon non-originalist precedent is taken seriously. Indeed, then-Chief Justice Rehnquist acknowledged this in the case of Dickerson v. United States, where he supported preserving Miranda v. Arizona’s procedural self-incrimination guidelines, in part because of their “[embedding] in routine police practice to the point… [of being] part of our national culture.”3 Others believe the stubborn adherence to precedent promulgated from faulty premises to harbor far more serious questions regarding judicial legitimacy. President Reagan’s Attorney General for the Department of Justice, Charles Cooper, for example, 1

Miranda v. Arizona, 384 U.S. 436 (White, J., dissenting), at 532.

Mark Franek, “Judicial Activism: A Tempest or a Tempest in a Teapot?” The Philadelphia Lawyer (Summer 2014).

3 530 U.S. 428 (2000), at 443.

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criticized the “inherently subjective” nature of stare decisis, whose “…avowed office is to shelter error from correction.”4 Associate Justice Clarence Thomas has routinely fallen into the latter category throughout his lengthy career on the Supreme Court, where the implications of his consistent calls to revisit stare decisis often left him concurring or dissenting alone.

The 2018-2019 summer term was no exception. A situational decision regarding alleged double jeopardy may contain a comprehensive originalist method towards assessing the doctrine of stare decisis: Gamble v. United States.5 The significance of a solidifying originalist bloc on the Court is not lost on legal commentators, especially given the Trump administration’s record appointment of district and appellate judges, the Supreme Court appointments of Neil Gorsuch and Brett Kavanaugh shifting the Court’s ideological balance, the surfacing health concerns of Justice Ginsburg, the aging of Justice Breyer, and the upcoming 2020 election.

These events among others provoke mass speculation over who the most influential figures shall be in the future of judicial politics.

This six-part article details a comprehensive study of Clarence Thomas’s concurrence in Gamble v. United States, 587 __2019; particularly how it expands, endorses, or creates a new conception of stare decisis within originalist jurisprudence. The first part introduced the issue of applying originalism to stare decisis doctrine. The second gives an overview of originalist methodology plus Thomas’s application. The third analyzes prior work which theorized ways to negotiate non-originalist precedents with originalism. The fourth briefs Thomas’s Gamble concurrence. The fifth juxtaposes Thomas’s stare decisis theory with his methodology, drawing parallels from scholarly work discussed in the second part.

The sixth summarizes my analysis and findings of Thomas’s stare decisis doctrine.

Such findings suggest that while Thomas’s stare decisis application draws from scholarly influence, his interpretation of constitutional text—particularly Article III powers—proves vital in creating a unique application of stare decisis, whose doctrine alone cannot be considered in a vacuum.

II.

Our Current Understanding of Orginalism

Research on originalist methodology has sharpened into three distinct schools of thought, classified by sources. Eschewing political theory influences on a jurist for the moment, we first examine each of them in turn: original intent, original understanding, and original public meaning.

As the first effort to fashion a judicial methodology around neutral principles of text and history, original intent sought to identify what the delegates of the 1787 Philadelphia Constitutional Convention collectively intended constitutional provisions to mean. This is rooted in the premise that “[to interpret] a document [is] to attempt to discern the intent of the author.”6 Personal notes each delegate recorded 4

Charles J. Cooper, “Stare Decisis: Precedent and Principle in Constitutional Adjudication,” 73 Cornell L. Rev. No. 2 (1988).

5 587 U. S. __ (2019).

6 Ralph Rossum, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (Lawrence: University Press of Kansas, 2013), at 12.

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ften provide the most persuasive weight, with James Madison’s being particularly prominent by virtue of subject-matter comprehensiveness, as he and Robert Yates were among the only individuals who recorded the Convention’s events.

By contrast, original understanding arose in response to criticism of original intent regarding diversity of thought among the Framers and the use of the 1787 Notes as an original matter. When its delegates convened, they “met under a secret rule that ‘nothing spoken in the House be printed, or otherwise published, or communicated without leave,’” so as a consequence, the public was unaware of the convention’s records and what was said there until decades [afterwards].”7 The necessity of secrecy casts doubt on a justice’s obligation to grant intent as weighty an influence as formerly thought. Most damning was one of James Madison’s Framing-era speeches delivered to the House floor on April 16, 1796, largely relegating original intent’s key reference, the Philadelphia Convention’s Notes, to a tertiary source (emphasis mine): Whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of the plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.8

Thankfully, Madison’s speech permitted an explicit source to discern the Constitution’s meaning. The original understanding method sought to identify how the 1787-88 state ratification convention delegates collectively understood constitutional provisions. Beyond state convention records, the Federalist Papers and Anti-Federalist Papers were also studied, since they were written to persuade and clarify constitutional functions during these various State Conventions.9 Originalism still had room to develop. Thanks to Justice Antonin Scalia’s forceful rhetoric, the “customary meaning of words and phrases,”10 contextualized through Founding-era dictionaries and documents of the era later became another historical source to rely upon. Known as “original public meaning,” these documents encapsulated common practice of state laws and citizen traditions of the era. For instance, if one wished to assess the constitutionality of restricting anonymous political speech, one might research how Framing-era state laws governed anonymous political speech during elections and, in turn, granted a strong presumption of correctness due to the longevity and popular approval of 7

Id. at 13.

Ibid.

9 Rossum, supra note 6, at 12-13.

10 Ibid.

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such a practice. This approach, which also examines selected judicial canons of construction, is utilized frequently when perusing statutory text.

These three approaches are used to “[constrain] judicial discretion and [encourage] judicial restraint,” for the greater discretion given to a judge, “the greater the freedom [exists] to write one’s personal preferences into the law.”11 Bright-line standards may be relied upon instead of tests requiring subjective balancing of perceived societal interests or deciding whether a state achieves an objective through tailored means. Originalism compels state legislatures to address each case’s consequences in a localized fashion, especially in promoting Article V’s usage. Unlike England’s unwritten, precedential “evolving” legal system, “with exception to an amendment adopted pursuant to the procedures set forth in Article V, the Constitution’s meaning cannot be updated...changed, or altered by the Supreme Court, the Congress, or the President.”12 Where does Clarence Thomas’s decision-making fall within these approaches? According to a hypothesis of former Supreme Court clerk Gregory Maggs, Thomas differentiates himself from other originalists by incorporating all three approaches into a unique variant known as general original meaning.13 Its chief objective is to “find agreement among ‘multiple sources of evidence,’ thereby ascertaining the “general meaning shown in common by all relevant sources.”14 This is intended to minimize the possibility of conflict between sources, especially considering the usage of certain sources is a particular sticking point among originalists.

Some originalists, like Antonin Scalia, believe that reliance on legislative history or intent of any kind, including Framing sources such as the Declaration of Independence, are “frail substitutes for a bicameral vote” on the law’s language which, used carelessly, subverts plain language for “aspirations,” “pronouncements,” and other forms of “philosophizing.”15 Others, like Clarence Thomas, share similar concerns towards statutory legislative history but maintain that original intent sources, particularly from the Declaration of Independence, may vitally inform originalism. These thinkers believe the Declaration’s explicit reference in Article VII of the Constitution, for example, represents embodied principles which allows the American people to achieve “a new order of the ages…[a] fulfillment of the ideals of the Declaration of Independence, as Lincoln, Frederick Douglass, and the Founders understood [them].”16 Judge William H. Pryor Jr. has noted the practical implications of Thomas’s time on the Supreme Court. The divergence in Thomas’s opinions from other self-described “originalist” Justices on the Court challenges the hypothesis that originalism is a results-oriented methodology, and his presence on the Court from 11

Id. at 21.

Ibid.

13 Gregory E. Maggs, “Which Original Meaning of the Constitution Matters to Justice Thomas?” 4 George Washington Law Faculty Publications & Other Works No. 494 (2009).

14 Rossum, supra note 6, at 13-14.

15 Id. at 15.

16 Id. at 19-20.

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a political power standpoint compels petitioners, respondents, and fellow Justices to address textual and historical originalist arguments.17 Thus, originalism as a methodology, can thrive under its users from term to term.

III. Negotiating Orginalism and Precedence One aspect of originalism which creates ambiguity is its ideal relationship with the doctrine of stare decisis. Latin for “to stand by things decided,” the practice of following prior court decisions is universally considered integral to upholding judicial stability and legitimacy. If a Court regularly alternates between different rulings on the same issue, the signals sent to policymakers regarding correct ways to create law would be in a constant state of uncertainty. Moreover, the public’s confidence in witnessing routine reversals on case law may especially be compromised if such changes often correlate with political rotation of popularly elected officials. When non-originalist decisions serve as a foundation for wellsettled precedent, originalists must negotiate between methodological purity and consequential pragmatism. Utah Supreme Court clerk James Cleith Phillips has identified several approaches prominent scholars have suggested, each which grant stare decisis varying degrees of influence within originalism.18 On one side of this sliding scale, there are those who believe stare decisis should play a lesser role in originalist decision-making. These include Michael Stokes Paulsen, Gary Lawson, Akhil Reed Amar, and Randy Barnett. Paulsen declared stare decisis capable of corrupting any methodology, given that originalism’s interpretive premises would be undermined by elevating bad precedent over the Constitution’s plain text if a non-originalist precedent is upheld.19 Lawson elaborated on Paulsen’s points by illustrating a constitutional conflict between the judicial duty to interpret and apply the bodies of positive law (e.g., the Constitution, federal statutes, treaties, rules and regulations), or recognize a prior court’s interpretation as authoritative. Lawson criticized the extent that stare decisis is relied upon as a non-explicit source of Article III authority by virtue of its own doctrine at the expense of said positive law sources. Lawson later extended the permissive use of prior decisions to situations when “the precedent is the best available evidence of the right answer to constitutional questions”—mostly in an epistemological sense, rather than a legal or economic one.20 Amar and Barnett took different tacks. Textually speaking, Amar posited the Constitution always trumped precedent, but distinguished another type of stare decisis involving judge-made “tests or doctrines” which affects the application of 17

William H. Pryor Jr., “Justice Thomas, Criminal Justice, and Originalism’s Legitimacy,” 127 Yale L.J. No. 73 (2017), at 174-76.

18 James Cleith Phillips, “Is Stare Decisis Inconsistent with the Original Meaning of the Constitution? Exploring the Theoretical and Empirical Possibilities,” 91 Notre Dame L. Rev. No. 2 (2016), at 116-117.

19 Michael Stokes Paulsen, “The Intrinsically Corrupting Influence of Precedent,” 22 Constitutional Commentary No. 2 (2005), at 289-290.

20 Gary Lawson, “Mostly Constitutional: The Case Against Precedent Revisited,” 5 Ave Maria Law Review No.1 (2007), at 3-4.

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constitutional provisions. In the sense that precedents permitted the application of these tests, Amar framed stare decisis as an “appropriate and necessary” epistemic tool, with future judges carrying the burden of proof to overcome each test’s “presumption of correctness.”21 Barnett concurred with “the superiority of the enacted text over the opinions of the branches of government” and the jurist’s role in discerning the appropriateness of judge-made tests, but narrowed Amar’s “presumption of correctness” to testdriven precedents which attempted to discern the Constitution’s original meaning.22 Barnett also proposed how to handle implicated reliance interests when revisiting long-standing precedent; by claiming originalists need only consider “properlytailored reliance claims by individual citizens,” even if citizen claims are grounded in erroneous precedent, Barnett would exclude reliance claims by political actors whose lifespans directly tie to a law’s existence and operation. 23 There are few scholars in the center of Phillips’s scale, such as Randy Kozel and Caleb Nelson. Kozel regarded the application of stare decisis as a tiebreaker, where the “settled meaning from precedent” is upheld in two instances: when the Constitution’s meaning “is ambiguous to the point that one cannot say one is more likely than the other,” and when “the consultation of text and historical evidence is insufficient to resolve a case.”24 Nelson proposed that a plausible “range of reasonable meanings” existed for constitutional provisions, and if a precedent fell within said range, said precedence is entitled to legal force. If a precedent falls outside said range, it is “demonstrably erroneous” and should be overturned.25 Nelson cited Alexander Hamilton’s distinction between “mere legal discretion” and “arbitrary discretion” in Federalist No. 78, John Marshall’s majority opinion in Osborn v. Bank of the United States to determine “known principles of interpretation to figure out the sound construction of the act,” and James Madison’s beliefs in “a range of indeterminacy” of written laws which is determined through a state’s “regular course of practice,” and distinctions between precedents which “expound” or “alter” text. 26 A variant of Nelson’s criteria allows compelling reliance interests to counter the prospect of overturning “demonstrably erroneous” precedence, strengthening stare decisis compared to originalism’s application.

Conversely, there are others, such as Michael Rappaport and John McGinnis, who believe stare decisis should play a greater role in originalist decision-making. Their theory stated that Article III’s judicial power encompassed 21

Akhil Reed Amar, “Foreword: The Document and the Doctrine,” 114 Harv. L. Rev. No. 26 (2000), at 78-89.

22 Randy Barnett, “Trumping Precedent with Original Meaning: Not as Radical as It Sounds,” 22 Constitutional Commentary No. 2 (2005), at 257-265.

23 Id. at 266.

24 Randy J. Kozel, “Original Meaning and the Precedent Fallback,” 68 Vand. L. Rev. No. 105 (2015), at 105.

25 Caleb Nelson, “Stare Decisis and Demonstrably Erroneous Precedents,” 87 Va. L. Rev. No. 1 (2001), at 1.

26 22 U.S. 738 (1824); Nelson, supra note 25, at 9-12.

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“certain traditional aspects of judicial office...widely and consistently exercised” at the time of the Founding.27 While they recognized that not every legal aspect during the Framers’ time period is “a requisite element of Article III,” they took great care distinguishing “[w]idely followed precedent rules [from] particular common law rules” where Article III would necessarily encompass using stare decisis.28 Unlike Paulsen and Lawson, McGuiness and Rappaport believed the Supremacy Clause and stare decisis were capable of coexistence due to the Clause’s ambiguity, and ‘[u]nder a narrower meaning, the Supremacy Clause would tell the courts to follow the Constitution’s original meaning, but...in the way that courts traditionally apply the law...in accordance with applicable precedent doctrine.”29 Distinctions existed between following supreme law and precedence: while venerating a law’s supremacy entails “following one body of law rather than another,” non-originalist precedent “[did] not involve a body of law in the ordinary sense,” and did not make such precedent supreme, but made it “orthogonal” to making law supreme.30 There is also the Supreme Court’s current approach to consider—that a precedent’s validity, among several factors to be elaborated later on, must contain “some special reason over and above the belief that a case was wrongly decided.”31 This approach tends “to overcome the Constitution’s text...more often than any other view.”32 As we see in the upcoming analysis of Gamble, Clarence Thomas disagrees with this application of stare decisis, despite its approval by a number of his brethren on the Supreme Court, and focuses the majority of his concurrence on fashioning a doctrinal alternative.

IV.

Case Study: Justice Thomas, Concurring in the Judgment

The case of Gamble v. United States concerned the conviction of Terrance Martez Gamble: he was pulled over for a broken taillight, his car searched due to the scent of marijuana, and a nine-millimeter pistol was found. Because Gamble was a convicted felon, he not only violated Ala. Code §13A–11–72(a) for firearm possession as a felon, but also 18 U.S.C. §922(g)(1) for its federal counterpart.

This raised the issue of whether Gamble’s twin conviction constituted a Fifth Amendment’s Double Jeopardy Clause violation. The Supreme Court last addressed this issue sixty years ago in Abbate v. United States, a 6-3 ruling which affirmed federal and state authority prosecuting the same conduct on the basis of their independent authorities to self-govern—creating what was known as the separate sovereigns doctrine.33 Despite Gamble’s challenge, the 7-2 opinion authored by Justice Samuel Alito ruled that federal and state offences, defined by the enacted 27

John O’McGinnis & Michael B. Rappaport, Originalism and the Good Constitution (Cambridge: Harvard University Press, 2013), at 168.

28 Id. at 169.

29 Id. at 173.

30 Id. at 174.

31 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (Opinion of O’Connor, J.), at 31.

32 Phillips, supra note 18, at 125.

33 359 U.S. 187 (1959) (opinion of Brennan, J.).

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laws of each sovereign government, are separate, thus fall outside of the Clause’s confines.

Thomas acknowledged the difficulty of concluding that the Framers meant to prohibit double prosecution of the same crime by separate state and federal entities.

This was due to the “very limited potential for overlapping criminal prosecutions by the States and the Federal Government” at the Ratification, Congress’s “limited criminal jurisdiction” at the time of ratification, and the “absence of an analogous dual-sovereign system in England.”34 Thomas made sure to emphasize from the outset that much of the Court’s “proliferation of duplicative prosecutions” could be laid at the feet of the Court itself––given its “questionable expansion of the Commerce Clause” and raising the possibility that much of Title 18 of U.S. Code, premised on the Commerce’s Clause’s expanded scope, may be subject to review in future cases.35 Alito’s recitation of the Supreme Court’s treatment of stare decisis in the past few decades, especially in the context of Abbate, its progeny, and 170 years of Double Jeopardy understanding, prompted Thomas to write separately. As Alito put it: Stare decisis ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’

Payne v. Tennessee, 501 U.S. 808, 827 (1991). Of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation. But even in constitutional cases, a departure from precedent ‘demands special justification.’ Arizona v.

Rumsey, 467 U.S. 203, 212 (1984). This means that something more than ‘ambiguous historical evidence’ is required before we will ‘flatly overrule a number of major decisions of this Court.’ Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 479 (1987). And the strength of the case for adhering to such decisions grows in proportion to their ‘antiquity.’

Montejo v. Louisiana, 556 U.S. 778, 792 (2009).36 This excerpt endorses an ongoing view of stare decisis which Thomas posited to be contrary to the Court’s role as an impartial adjudicator. In its current iteration, stare decisis is “a principle of policy” which influences the decision whether to keep or void a prior decision utilizing these factors: the “workability” of a standard, “the antiquity of the precedent, the reliance interests at stake, and… whether the decision was well reasoned.”37 The latter, according to Thomas, is subject to politically motivated manipulation. Despite the Court’s claims of maintaining this test “to promote evenhanded, predictable...consistent development of legal principles” and uphold “the actual and perceived integrity of the judicial 34

Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), at 1-2.

Ibid.

36 Gamble v. United States, 587 U.S. __ (2019) (opinion of Alito, J.), at 11-12.

37 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), at 3.

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process,” Thomas questioned the legitimacy of “[elevating] demonstrably erroneous decisions…[made] outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law.”38 Thomas conceded that this traditional approach might make sense in a common-law legal system like England’s, where a judge must create law to inform existing custom-driven precedents. However, he viewed such an approach to be incompatible with the United States’ system of government—whose authority is vested in the Constitution, federal statutes, and treaties—and which tasks “political branches—not the Judiciary—with systematically developing the laws to govern our society.”39 While early common law courts “discerned and defined many legal principles in the first instance,” the Constitution authorized federal courts to apply, not create, laws articulating those legal principles. To understand the nature of stare decisis in such a system, Thomas claims, we must begin with “a proper understanding” of the judicial power of federal courts to “decide cases in accordance with law.”40 This “proper understanding,” according to Thomas, can be summarized in four statements: a. The Judiciary lacks “force” (to execute laws) and “will” (to create laws), since they are vested in the executive and legislative branches. b. According to Federalist 78, the Judiciary cannot “substitute [its] own pleasure to the constitutional intentions of the legislature.” c. The duty of judicial discretion requires liquidation— “to make clear or plain”; “to render unambiguous”; to settle differences, disputes—” or ascertainment of the law’s meaning. d. This discretion is the power to correctly “expound” the law, not “alter” it.41 In English common-law, stare decisis served as “the principal and most authoritative evidence that [could] be given” unless a given decision was “flatly absurd or unjust,” since these rulings were to derive from “the known laws and customs of the land” and not “according to...private sentiments” or “private judgment.”42 These “discovered” principles consisted of the “wisdom, counsel, experience, and observation of many ages of wise and observing men,” and rested on the ‘unarticulated social processes to mobilize and coordinate knowledge gained primarily through ‘the social experience of the many,’ instead of the ‘specifically articulated reason of the few.”43 The founding generation did not see judges as infallible; William Blackstone articulated in his Commentaries that erroneous precedent ought to be reversed “to vindicate the old [rule] from misrepresentation.”44 According to Blackstone, stating a former decision’s manifest absurdity or injustice rendered the law not merely 38

Id. at 2.

Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), 3.

40 Id. at 4.

41 Id. at 4-5.

42 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), at 5.

43 Id. at 6-7.

44 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), at 7.

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“bad,” but “not law” at all. James Kent, Blackstone’s American counterpart who authored the Commentaries on American Law concurred: “If...any solemnly adjudged case can be shown to be founded in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error.”46 According to Thomas, this view of stare decisis was widely accepted among the several states, citing four state cases between the Framing and antebellum eras as proof: McDowell v. Oyer (“stare decisis keeps law from depending on ‘the caprice of those who may happen to administer it’”), Guild v. Eager (“individual court decisions ‘are often reexamined, reversed, and qualified...whenever they are found to be either defective, or ill-founded, or otherwise incorrect’”), Marshall v. Baltimore & Ohio R. Co. (“Wherever the Constitution commands, discretion terminates...continued adherence to ‘palpable error’ is a ‘violation of duty, an usurpation”), and Commonwealth v. Posey (“[A]lthough I venerate precedents, I venerate the written law more”).47 Thomas claimed that this historical application of stare decisis implied limits to the discretionary authority of common law judges. They were not at liberty to “[insert] their own preferences into the law as it developed.”48 They were instead “tasked with identifying and applying objective principles of law—discerned from natural reason, custom, and other external sources. The Framers understood that if an error occurred, it was the Judiciary’s duty, in Kent’s words, to “examin[e] without fear, and revis[e] without reluctance.... hasty and crude decisions” rather than leave “the character of [the] law impaired, [its] beauty and harmony of the system destroyed by the perpetuity of error.”49 When faced with a demonstrably erroneous precedent, Thomas stated that jurists should not feel obligated to follow it, regardless of any balancing factors.

He insisted that his view of stare decisis derived “directly from the Constitution’s supremacy over other sources of law—including our own precedents.”50 Thomas emphasized the Constitution’s Supremacy Clause, asserting that the oath government officials take entails upholding the Constitution, not to blindly uphold stare decisis.

He reserved Marbury v. Madison as the sole exception to affirm the Supreme Court’s duty to uphold the Constitution in the face of “legislative act[s] repugnant to it.”51 Since judicial power “must be understood in light of ‘the Constitution’s status as the supreme legal document...[over] lesser sources of law,’” it would naturally limit the Court’s power to give weight to precedence in conflict with the Constitution’s language.52 45

45

Id. at 6.

Id. at 7.

47 8 Va. 109 (1787) (opinion of Tazewell, J.); 17 Mass. 615 (1822) (opinion of Parker, C.J); 21 Pa. 417 (1853) (opinion of Black, C.J.); 16 How. 314 (1854) (Daniel, J., dissenting).

48 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J., concurring), at 7.

49 Id. at 8.

50 Id. at 9.

51 5 U.S. 137 (1803) (opinion of Marshall, C.J.); Gamble v. United States 587 U.S. __ 2019 (Thomas, J., concurring), at 10.

52 Ibid.

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Similarly, no special exceptions would exist for a federal court to reject its own erroneously decided statutory stare decisis, as it otherwise threatened to usurp legislative power. This did not mean, Thomas clarified, that the Court must always “independently assure itself that each precedent relied on in every opinion is correct as a matter of original understanding….It is permissible for the Court to assume… [its] predecessors properly discharged their constitutional role until we have reason to think otherwise.”53 Put simply, the burden to prove a precedent demonstrably erroneous and present an alternative solution to a constitutional issue would fall upon current or future members of the Court.

Towards permissible precedents, Thomas took a different approach. He acknowledged the need for the Court to have the power to ascertain the meaning of laws due to the “the inability of human language to be fully unequivocal in every context”; each word possessing its own range of indeterminacy. As he put it, “Reasonable people may therefore arrive at different conclusions about the original meaning of a text after employing all relevant tools of interpretation.”54 This case is a shining example given that Justice Neil Gorsuch, one of the Court’s newest self-avowed originalists, dissented while Thomas joined the majority’s judgment.

Thomas commended Gorsuch’s efforts to highlight post-ratification sources supporting Gamble’s position. They included the following: two evidentiary rules treatises explaining how acquittal for the same charge in a foreign country “could be pleaded for the same offence in England,” or “before any other tribunal,”; an 1846 Scotland High Court of Justiciary denying a defendant’s retrial “[i]f a man has been tried for theft in England,” and four American contemporaries of the 1800s— James Kent, Thomas Sergeant, William Rawle, and James Bayard. 55 These four “claimed only to recite” the English understanding of the Hutchinson rule, “an established common-law rule barring domestic prosecution following a prosecution for the same act under a different sovereign’s laws.”56 Gorsuch’s lack of “stronger showing that [the treatises] reflected the understanding of the Fifth Amendment at the time of ratification,” coupled with an insufficient showing that common law had coalesced around a definitive anti-dual sovereign view, ultimately led Thomas to abstain from his dissent.57 As a matter of originalist inquiry, Thomas stated that the difficulties of discerning original meaning did not “excuse the Court from diligently pursuing” it, even if it “require[d] a taxing inquiry,” for it prevents the Justices from “substitut[ing] their own preferences over the text.”58 He would apply his stare decisis to statutes as well, owing to the constancy of the Supreme Court’s judicial duty of “[applying] the law to...facts of the case, regardless of how easy it is for the law to change.”59 He also criticized the Court’s practice of taking legislative 53

Id. at 11.

Gamble v. United States 587 U.S. __ 2019 (Thomas, J., concurring), at 12.

55 Id. at 13-14.

56 Id. at 15; Gamble v. United States, 587 U.S. __ (2019) (opinion of Alito, J.), at 12.

57 Gamble v. United States, 587 U.S. (2019) (Thomas, J., concurring), at 14.

58 Id. at 13.

59 Gamble v. United States, 587 U.S. (2019) (Thomas, J., concurring), at 14.

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silence as affirmation of an interpretation’s correctness, for it forced correctness to revolve around “what the current Congress desires, rather than by what the law, as enacted, meant.” In contrast to Justices with legislative backgrounds who may be more sympathetic to what they view as pragmatic Congressional clarification (e.g., Sandra Day O’Connor and Stephen Breyer), Thomas regarded this practice as an invalid way “‘for our elected representatives to express their collective judgment,’” falling far short of Article I’s required “bicameralism and presentment.”60 In his concluding remarks in Gamble, Justice Thomas reaffirmed his criticism of the Supreme Court’s multi-factor “balancing approach” stare decisis method, as it encouraged “policy-driven, ‘arbitrary discretion…[quantifying] the unquantifiable” and “[sweeping] subjective factors” in decision-making.61 He attacked the premise that overturning stare decisis begets “uncertainty,” contrasting Justice Breyer’s concluding remarks in Franchise Tax Bd. of Cal. v. Hyatt, (where Breyer fretted the majority’s ruling caused “one to wonder which cases the Court will overrule next”) to Justice Kennedy’s majority opinion in the landmark Lawrence v. Texas (where he posited that not overruling Bowers v. Hardwick would “cause uncertainty.”) 62 Thomas’s counterpoints centered on how much uncertainty would disappear with a “clear, principled rule grounded in the meaning of the text” instead of invoking stare decisis when the precedent at hand was “least defensible,” or made to protect policies agreeable to a given Justice’s personal viewpoints. To Thomas, this posed thorny problems when the longevity of such precedents leads to a “ratchet-like effect,” where the chances of the precedent being overruled becomes slimmer over time.63 The most egregious example Thomas cited was in Gamble was McDonald v.

Chicago, where he decried the missed opportunities to overrule the Slaughter-House Cases, overrule U.S. v. Cruikshank, and resurrect the Fourteenth Amendment’s Privileges or Immunities Clause.64 By incorporating the Second Amendment against the States via the Fourteenth Amendment’s Substantive Due Process Clause, Thomas believed confusion would persist in the vast body of Fourteenth Amendment case law. Pertinent questions such as how and when to use the Privileges or Immunities Clause, or how to distinguish between fundamental and non-fundamental rights, would remain unclear.65 With this, Thomas closed his concurrence with a solemn assertion of what he conceived as a Supreme Court Justice’s role in our system of government, striking at the very crux of his belief of what the duty demanded of him: “...to interpret the law requires adherence to the original meaning of the text,” which was why “for this reason we should not invoke stare decisis to uphold precedents that 60

Id. at 15.

Ibid.

62 478 U.S. 186 (1986) (opinion of White, J.); 539 U.S. 558 (2003) (opinion of Kennedy, J.,) at 17; 587 U.S. ___ (2019) (Breyer, J., dissenting), at 13.

63 587 U.S. __ (2019) (Thomas, J., concurring), at 16.

64 83 U.S. (16 Wall.) 36 (1873) (opinion of Miller, J.); 92 U.S. 542 (1876) (opinion of Waite, J.); 561 U.S. 742 (2010) (opinion of Alito, J.).

65 Gamble v. United States, 587 U.S. (2019) (Thomas, J., concurring), at 17.

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are demonstrably erroneous.”

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Analysis: Examining Thomas’s Stare Decisis Doctrine

Explicit citations within his concurrence demonstrate a great deal of Clarence Thomas’s perspective on stare decisis doctrine. While common-law sources such as Blackstone and Kent certainly inform parts, it would be remiss to neglect the twenty-first century legal scholars referenced in Part II, which play a central role in clarifying the role of stare decisis. For instance, Caleb Nelson’s range-of-indeterminacy model, which examined how Framing and antebellum-era jurists appeared to have treated stare decisis vis-a-vis written statutory law, was referenced several times in the opinion. First, it was used to highlight distinctions between English common law and American statutory law regarding the relevance of stare decisis between the two systems. Second, it was used to cite early case law which recognized when to abandon stare decisis in lieu of reinterpreting a written text. Finally, it was used to endorse the Madisonian theory that written laws possess “a range of indeterminacy” which, if ascertained outside the interpretive range, may be considered demonstrably erroneous.

The pressing question with Thomas’s application of Nelson’s range-ofindeterminacy approach is this: to what extent does the range exist? If too narrow, there would be an insufficient selection of sources to consult to reach conclusive results in a variety of cases. If too broad, methods divorced from original intent, understanding, and meaning may dilute the whole inquiry altogether and grant limitless authority to how jurists construct and interpret provisions. We have already seen one instance where originalists may undergo their analyses and yield different results, as Clarence Thomas and Neil Gorsuch did in Gamble. Prior to his comments on Gorsuch’s dissent, however, Thomas cited an analogous instance of differing originalist results between he and Antonin Scalia in McIntyre v. Ohio Elections Comm’n.67 In McIntyre, the Court struck down an Ohio statute prohibiting the distribution of campaign literature which did not contain the name of a citizen and their address or the name of a campaign official. Thomas concurred with the majority’s judgment, while Scalia, joined by then-Chief Justice William Rehnquist, dissented. Thomas’s concurrence centered on “historical evidence from the framing,” namely “whether the phrase “freedom of speech, or of the press,” as originally understood, protected anonymous political leafleting.” Thomas did so by citing the colonial-era Crown v. Zenger trial, the Revolutionary War era where protection was afforded to one ‘Leonidas’ for criticizing the Continental Congress’s monetary policies, and three controversies in New Jersey, Philadelphia, and Massachusetts surrounding the failed prosecutions of anonymous printers criticizing state actors.68 Meanwhile, the two dissenting Justices in McIntyre cited “a century of practice in the States,” emphasizing the lack of specific situations to anonymous political 66

Ibid.

514 U.S. 334 (1995).

68 514 U.S. 334 (1995) (Thomas, J., concurring), at 359-367.

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pamphleteering during elections mentioned in the concurrence. Among other things, they emphasized that by the start of World War I, twenty-four states had enacted anonymous electioneering prohibitions.69 The salient point to derive here, however, is the Nelson model’s accommodation of ranging results even within originalist methodology, which weakens the hypothesis that originalism’s range of results are too narrow or broad. Honest disagreement and indeterminacy may exist even under Thomas’s application of Nelson’s model.

South Texas College of Law Professor Josh Blackman suggested further influence on Thomas regarding his application of Nelson’s stare decisis model— Lawrence Solum and Randy Barnett’s model of constructing constitutional text. In their paradigm, “the law never ‘runs out’ in that a Court may adopt an interpretation beyond the bounds of permissible construction.”70 Thomas clarified that the range of reasonable meanings is limited to originalist methodological inquiries, and if there are “multiple, equally correct legal meanings,” the Court cannot go beyond those meanings nor defer elsewhere. It must undertake the task of discovering the most correct meaning regardless of difficulty, with the burden of doing so lessened by a critical caveat: The Court is not bound to preserve or overrule a precedent if it falls within a permissible range.71 To understand Thomas’s methodology, it is also necessary to examine how he conceives Article III’s duties involving judicial power, which is where Gary Lawson’s views become instrumental. Lawson framed Article III as “the [fundamental] power to decide cases in accordance with the law” considering the Constitution’s political supremacy over other sources of law.72 This required limits on “the power of a court to give legal effect to prior judicial decisions” if the Constitution’s plain text conflicts with precedence.73 Such a paradigm, where stare decisis is viewed extrinsically of Article III and not among the necessary tools a jurist is duty-bound to use, yields a highly anomalous methodology, especially cast against today’s legal orthodoxy.

Discussion regarding the majority opinion in Gamble has revealed the Supreme Court’s tendency to utilize stare decisis for the purposes of upholding the rule of law’s stability and legitimacy. Given the political climate of growing sensitivity to partisan court majorities, one wonders the extent of good faith these jurists and their sentiments possess, regardless of the precedents preserved or struck down.

69

514 U.S. 334 (1995) (Scalia, J., and Rehnquist, C.J., dissenting), at 373-377.

Josh Blackman, “Twitter/ @JoshMBlackman: 1/Running thread as I read through…,” Twitter (June 17).

2019, 12:40 p.m., https://threadreaderapp.com/thread/1140660468136198144.html; See also Lawrence B. Solum, “Legal Theory Blog,” (June 2019). https://lsolum.typepad.com/ legaltheory/2019 /06/thomas-on-precedent-and-the-interpretation-construction-distinction.html.

71 Gamble v. United States, 587 U.S. (2019) (Thomas, J., concurring), 12-13.

72 Gary Lawson, “The Constitutional Case Against Precedent,” 17 Harv. J.L.& Pub. Pol’y 1 (1994), at 26.

73 Id. at 30.

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VI. Discussion and Conclustion: Quo Warranto, not Stare Decisis

Research exploring originalist methodology and jurisprudence has developed for over fifty years, and its promotion has been vastly buoyed by the appointment of such Supreme Court Justices as Antonin Scalia and Clarence Thomas. Despite increased clarity regarding the proper methodology of originalism, the doctrine of stare decisis has presented unavoidable conflict with originalism’s use when nonoriginalist decisions serve as foundation for well-settled precedent. While legal scholars have proposed various ways to negotiate stare decisis and originalism, a self-avowed originalist Supreme Court Justice endorsing an alternative stare decisis model—especially in light of the Trump administration’s judicial developments— appears to foretell like-minded jurists following suit, leading to profound disputes when assessing upcoming cases.

Further analysis also suggested that originalism cannot only work alongside stare decisis; stare decisis cannot be considered in a vacuum—how one constructs and interprets text, in addition to how once conceives Article III constitutional authority, also informs one’s use of stare decisis. When examining Thomas’s Gamble concurrence, we observed how in several instances, he endorsed Caleb Nelson’s range-of-indeterminacy model. Nelson’s model—analyzing the original interpretive methods of Framing and antebellum jurists—the originalist rules of construction were built into Nelson’s accommodation to set forth a concrete range of indeterminacy. In Thomas’s case, assuming Maggs’s original meaning hypothesis is correct, he used the commonalities between original intent, understanding, and public meaning as his boundaries. If a result fell outside the possibilities derived from these three approaches, Thomas argued, the Supreme Court should render them “demonstrably erroneous” and overrule them accordingly.

In addition, Thomas’s incorporation of Lawson’s understanding of Article III not only prioritizes Constitutional supremacy, but also includes the place of stare decisis among those lesser sources, separate and apart from the Constitution’s plain text. For Thomas, the Constitution is the ultimate stare decisis—beyond that, even: “Instead of saying stare decisis, we should say quo warranto—by what authority?”74 Indeed, The Washington Examiner briefly contextualizes the Latin phrase’s significance: It was the name of a prerogative writ used by English kings to cause havoc among their enemies. Kings Charles II and James II used quo warranto writs to question the charters of ancient cities. When the cities could not prove the right to exist before the king’s judges, they were forced to request a new charter from the monarch—one that was inevitably more favorable to the king.75 74

Myron Magnet, Clarence Thomas and the Lost Constitution (New York: Encounter Books, 2019), at 62.

75 Kyle Sammin, “Chaos Theory,” The Washington Examiner (July 2019).

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By analogizing English royal authority to the U.S. Constitution’s authority and ancient city charters to stare decisis doctrine, one may understand the extent to which Clarence Thomas emphasized a jurist’s obligation not to merely rubberstamp precedents without thorough investigation. For Thomas, this means to “think things through constantly, to re-examine ourselves, to go back over turf we’ve already plowed, [and] to torment yourself to make sure you’re right,”76 scrutinizing the ultimate authority for a decision aside from its ad nauseum quotation. Applying Nelson’s model through his own legal acumen, Clarence Thomas has created a stare decisis doctrine compatible with originalism whose historical faithfulness— carefully crafted over twenty-eight years and counting—yields a worthy jurisprudential doctrine.

76

Magnet, supra note 74, at 62.

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American Military Commisions A Long History of Injustice Ari Gershengorn New York University

I.

Introduction

The history of American military tribunals is not a pleasant one. Since their dawn in the Revolutionary War, military tribunals have delivered swift and often unfair substitutes for justice. Some contemporary legal commentators rely on this lengthy historical precedent to justify the continued usage of military tribunals.

Rather than upholding their existence, however, the unjust history of these commissions demonstrates why their usage should be significantly curtailed.

II.

What is a Military Tribunal?

Under normal circumstances in American law, those accused of committing crimes go before a federal or state judge. The accused are broadly protected by the Fourth, Fifth, and Sixth Amendments, and are allowed, among other things, legal representation, trial by jury, and a public trial. None of these are true for military tribunals. Military tribunals decide the fates of a specific class of people: non–prisoner of war enemy belligerents. In other words, any foreign combatant not captured on the battlefield and comporting themself in a manner consistent with the laws of war can be tried by a tribunal. Soldiers on a battlefield are not tried and executed, however enemy belligerents, such as spies, terrorists, and assassins, can be. Military tribunals have been used in the United States since before the drafting of the Constitution and bear only the slightest resemblance to the courts provided in the Constitution. Unlike normal criminal courts, any privileges provided to the accused are just that: privileges. Congress and the President (absent congressional guidance) can set rules that govern the procedure and protections in the trial, and the results are often quick and harsh.

While seemingly legally questionable, the usage of military tribunals is rooted in the founding documents of America. The Constitution gives Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”1 It is generally understood that offenses against the Law of Nations include a variety of war crimes, ranging from piracy to extra-judicial killings to genocide.2 There is much debate about whether other crimes, specifically spying and conspiracy, constitute violations of the Law of Nations.

III. Military Tribunals Before WWII 1 2

U.S. Const. art. I, §8, cl. 10.

Military Commissions Act of 2006, Pub. L. 109-366, § 950v 120 Stat. 2600 (2006).

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One of the first usages of military tribunals comes from the pre-Constitution trial of Major John Andre. A British officer with ties to the famous traitor Benedict Arnold, Andre arrived in American territory on September 22, 1780.3 He was found and arrested within a day and brought before a military tribunal convened by General George Washington. The question before the panel was whether Major Andre was a simple soldier, and thus should be treated as a prisoner of war, or whether he acted in violation of the Law of Nations, and thus should be treated as an unlawful enemy combatant. The tribunal found Andre guilty of infiltrating America in a “private and secret manner,” working under a “feigned name and disguised habit,” and being in possession of “several papers which contained intelligence for the enemy.”4 In light of the evidence, the tribunal unanimously recommended death, a decision that General Washington approved. Andre was executed on October 2, 1780, less than two weeks after his arrival to America. Andre was not afforded many protections. There is no official record of the trial, and the unofficial account published by Congress omits any mention of a defense by the accused, although Winthrop Sargent, Andre’s biographer, argues that the Major almost certainly did.5 There was little testimony, and Andre was likely not afforded an opportunity to present witnesses.6 The lack of rights afforded to Andre would establish a recurring precedent in tribunals to come.

B.

Andrew Jackson in New Orleans

In the country’s early days, military tribunals were common when martial law had been declared, frequently to ill effect. An early high-profile usage was by General Andrew Jackson in New Orleans after the War of 1812. Jackson declared martial law in 1814, ordering his soldiers to “execute the martial law in all cases which may come within his province.”7 Jackson used this proclamation to try crimes before military tribunals and enforce a strict curfew.8 Unfortunately for the citizens of New Orleans, Jackson refused to rescind his proclamation even after the British had left and were negotiating terms of peace. Jackson used this power to dubiously arrest and order the military trial of Louis Louaillier, a newspaper publisher critical of the general.9 Louaillier petitioned for a civilian trial, and Judge Dominick Hall sided with the publisher. In a violation of civil liberties, Jackson expelled the judge from New Orleans. Although Judge Hall eventually returned to New Orleans — 3

Louis Fisher, Military Tribunals and Presidential Power (Lawrence: Kansas University Press, 2005), at 11.

4 Wade Millis, “A Spy Under the Common Law of War,” 11 A.B.A.J. No. 3 (1925), at 186.

5 Winthrop Sargent, The Life and Career of Major John Andre (Boston: Ticknor and Fields, 1861), at 396-397.

6 Id. at 396 7 Harold Moser, Papers of Andrew Jackson (1991), at 205. In Fisher, supra note 3.

8 Fisher, supra note 3, at 25.

9 Ibid.

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and issued General Jackson a $1,000 fine — Jackson’s ability to suppress personal freedoms with military justice is alarming.

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C.

Jackson in the Seminole War

General Jackson’s actions in the Seminole War were equally disturbing.

Tasked with quelling a Creek Indian uprising in Florida, Jackson declared martial law in 1818 before arresting and charging two British officers, Alexander Arbuthnot and Robert Chrystie Ambrister, on charges of spying and incitement.11 He arraigned both men before tribunals. Arbuthnot’s trial was speedy, and the result was predictable: by a two-thirds majority, the tribunal sentenced Arbuthnot to death by hanging.12 Ambrister’s trial was far more complex. Although he was found guilty, he was sentenced to 50 lashes and 12 months of hard labor.13 Jackson, unhappy with the sentence, had Ambrister shot.14 Jackson’s decision to execute the British officer was highly controversial and led to widespread condemnation.

Despite verbal reprimands from Congress regarding this decision, Jackson escaped unscathed and unpunished.15

D.

Lincoln’s Suspension of Habeas Corpus

The American Civil War was a watershed for military justice. Almost immediately after the start of the Civil War, President Abraham Lincoln suspended habeas corpus from D.C. to Pennsylvania, arguing that the president was to “preserve, protect and defend the Constitution.”16 This argument was broad, however, and could be used to justify a wide array of unconstitutional behavior. Additionally, the Constitution is clear that only the legislative branch can suspend habeas corpus “in Cases of Rebellion or Invasion.”17 Lincoln realized the inadequacy of his oath-ofoffice-based argument and appealed to Congress for legitimacy. The question of whether or not the president could suspend habeas corpus was never fully answered.

In 1863, the Senate passed the Habeas Corpus Suspension Act, which declared that “During the present rebellion, the President of the United States, whenever, in his judgement, the public safety may require it, is authorized to suspend the writ of habeas corpus in any case throughout the United States or any part thereof.”18 On September 15, 1863, using the power vested in him by the HCSA, Lincoln declared that “the privilege of the writ of habeas corpus is suspended throughout the United 10

Id. at 26-27.

Id. at 28.

12 American State Papers: Military Affairs (1832) at 721, 731.

13 Fisher, supra note 3, at 28.

14 Ibid.

15 Id. at 31. The Senate, for example, was critical of Jackson for lowering Ambrister and Arbuthnot, two white men, “Below the savages with whom they were connected.”

16 Fisher, supra note 3, at 41-43.

17 U.S. Const. art. I, §9, cl. 2.

18 An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases, §1, 12 Stat. 755 (1863).

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Ex parte Milligan

In 1864, Lambdin Milligan, a United States citizen and longtime resident of Indiana, was arrested and tried before a military tribunal for “conspiracy… affording aid and comfort to rebels… inciting insurrection… disloyal practices and violations of the laws of war.”20 Milligan was convicted. He appealed all the way to the Supreme Court, arguing that the military commission did not have jurisdiction to hear his case, as civilian courts were still in operation and he was a United States citizen. In his case, Ex parte Milligan, the court faced two questions. First, did the Habeas Corpus Suspension Act of 1863 (HBSA) limit the ability of a military commission to try Milligan where civilian courts were in operation? Second and more importantly, the court had to decide whether tribunals could operate at all where civilian courts were in operation, regardless of what the HBSA said. On this statutory question, the court unanimously ruled in Milligan’s favor, as the HBSA stated that prisoners are entitled to trial in a federal or district court if they, like Milligan, are a citizen of a state where “The administration of laws has continued unimpaired.21 The more important question, as to whether or not tribunals could operate at all if civilian courts were in operation, split the court five to four in favor of Milligan. Justice David Davis, the majority opinion’s author, invoked the Fourth, Fifth and Sixth Amendments at length in his opinion. He argued that “One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior.”22 Davis went on to argue that “Another guarantee of freedom was broken when Milligan was denied a trial by jury,” in violation of his Sixth Amendment rights.23 Davis warned of a despotic and tyrannical executive branch that would amass terrifying power during wartime. If the president is able to fully substitute in military commissions, any general can “on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.” 24 The Court here makes an important stand for civil liberties. Had they ruled against Milligan, the president, would be able to supplant civil justice with military justice during any war on American soil, whether it related specifically to the war or not.

F.

Botched Trial of the Lincoln Conspirators

On April 15, 1865, Abraham Lincoln was killed by John Wilkes Booth 19

Proclamation No. 104, (1863).

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

21 Ibid.

22 Ibid.

23 Ibid.

24 Ibid.

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at Ford’s Theater in Washington, D.C. Booth and his associates were subject to widespread public ire, and the nation wanted heads to roll, whether the proceedings were just or not. President Andrew Johnson ordered a tribunal to try eight conspirators, even though civil courts were in operation.25 The primary reason why Johnson convened military tribunals was likely that he feared the convictions he sought could not be obtained in civil court. In correspondence on the trials, Judge Advocate General Joseph Holt referred to the safeguards and rights provided by the civil court system as “technicalities” that would cause “inevitable embarrassments.”26 Johnson likely had reason to fear.

Only one juror was needed to secure an innocent verdict, and with many men in D.C. still at war, the available pool held a disproportionate number of Confederate sympathizers.27 Secondly, Holt and the prosecution wanted a show trial for the conspirators, and thus needed more latitude regarding admissible evidence. Holt insisted that the evidence they present make the Confederate scheme be “published to the community and to the world,”28 and therefore needed “a latitude that no civil court would allow.”29 Both of these reasons unfairly favored the prosecution and stemmed from a nation and a military justice system hungry for vengeance.

President Johnson asked attorney general James Speed to decide whether or not the creation of the tribunals was legal, and the decision that Speed provided was flawed in several ways. A common theme in miscarried military justice is sacrificing caution for expediency, and Speed’s opinion was no different. Although he promised to write a full opinion later, Speed produced an upsettingly short decision on April 28, which reads, in its entirety: “Sir: I am of the opinion that the persons charged with the murder of the

President of the United States can be rightfully tried by military

court. I am, sir, very respectfully, your obedient servant, JAMES SPEED.”30 For Johnson, this opinion was enough to declare, conduct and conclude the tribunal for the eight defendants. The trial itself barely maintained an illusion of impartiality. Elements harmful to the accused included but are not limited to: charges that were of “extraordinary breadth and vagueness,” limited access to legal counsel, various conflicts of interest, admissibility of evidence that included wild conspiracies about Canadian plots to kill the president (the principal witnesses 25

Fisher, supra note 3, at 66.

Martin S. Lederman, “The Law of the Lincoln Assassination,” 118 Colum. L. Rev. No. 2 (2018), at 399.

27 Ibid.

28 United States War Department, “Letter from J. Holt, Judge Advocate Gen., to E.M. Stanton, Sec’y of War (Nov. 13, 1865),” The War of the Rebellion: A Compilation of the Official Record of the Union and Confederate Armies (Washington: Govt. Print. Off., 1880-1901), at 493.

29 Lederman, supra note 26, at 398.

30 11 Op. Att’y Gen. 215, 215 (1865).

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testifying about the Canadian plot were revealed to be perjurers), and lack of access to any kind of review process.31 The trial ended in eight out of eight convictions, with four sentenced to death and four sentenced to life in prison.

If Johnson were keen to secure convictions, he was wise (although legally objectionable) to avoid civil court, where many of the convicted would likely have escaped punishment. While three men were clearly connected to Booth and the plot, at least four of the convicts, Samuel Arnold, Michael O’Laughlen, Edman Spangler and Mary Surrat were only tangentially involved.32 Despite a dearth of evidence, these individuals were either hung or served long prison sentences.33 Speed’s full opinion was not enough to save the legality of the tribunals.

It was released too late to make a difference, after the conclusion of the trials, appearing to be their after-the-fact justification. The contents of the opinion were no less troubling, as he poorly addressed the question of whether this trial could be conducted in a civil court. He argued that while murder was triable by civil court, targeting an enemy leader with lethal force is against the laws of war. Speed errs in this conclusion, however, as targeting enemy leaders with lethal force, in and of itself, is not a war crime.34 Even if killing opposition leaders were a war crime, Speed’s opinion fails to adequately explain why Johnson could ignore the Milligan decision and allow military tribunals to operate while civil courts were open. He makes the strained argument that courts cannot try military offenders because courts have no right to “interfere with and prevent a battle.”35 Speed went on to argue that “A battle may be lawfully fought in the very view and presence of a court; so a spy, or bandit or other offender against the law of war, may be tried, and tried lawfully, when and where the civil courts are open and transacting the usual business.”36 Arguing that the trial of these men constituted a military battle was likely an post hoc explanation justifying the unjust execution of several enemies. All in all, the executions of the Lincoln conspirators were legally abhorrent, and should serve as an example of what not to do in a military tribunal setting. Unfortunately, many of the same mistakes would be repeated decades later in World War II.

IV.

Military Tribunals in WWII

In 1942, Nazi spies landed in New York City with the aim of harming the U.S. war effort by using explosives on key infrastructure.37 Shortly after landing, one of the men, George John Dasch, panicked and turned himself into the FBI, who 31

Lederman, supra note 26, at 338-341.

Three were clearly involved, four were clearly not and Samuel Mudd was somewhere in the middle. Booth and his associate, David Herold, hid at Mudd’s farm shortly after killing Lincoln.

It is unclear to what extent Mudd was involved or whether he knew of Booth’s actions. Mudd was sentenced to a life of hard labor by a separate tribunal in 1868, although President Johnson granted him a pardon in 1869.

33 Lederman, supra note 26, at 332-333.

34 Lederman, supra note 26, at 423.

35 Speed, supra note 30.

36 Ibid.

37 Fisher, supra note 3, at 91.

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then rounded up the other seven men. In an irregular move, these men were tried in a military tribunal rather than a civilian court without adequate legal justification.

There were two main reasons for this, and neither present the government in a particularly positive light.

First, the FBI didn’t want the knowledge of the true nature of the infiltration of the Nazis to be known. There was a public perception the FBI had, through brilliant police work, snuffed out the nefarious plot to harm American interests.

The New York Times praised the FBI, writing that the saboteurs were being trailed by the FBI “from the moment they set foot on United States soil.”38 While the FBI was instrumental in bringing down these Nazi invaders, the truth of their capture is much more complex. The FBI lost track of the men once they entered the country and were saved due to the sheer luck of Dasch’s panic.39 The FBI enjoyed the positive press it was receiving and suppressed the Nazi’s testimony for the sake of maintaining their own reputation. Historian Louis Fisher writes that the FBI — specifically Director J. Edgar Hoover — “did not want it known that one had turned himself in and fingered the others. Neither did President [Franklin D.] Roosevelt and other top officials.”40 The FBI offered Dasch a civil trial, under the condition that Dasch not divulge details of the investigation, which Dasch declined. With the risk of Dasch divulging the secret of his capture in court, the administration began to favor a military tribunal.

The second reason for the government’s decision to enact military tribunals hinged on the possibility that in civil court, the saboteurs might not have been found guilty.41 The Nazis, while clearly harboring malice, had not obviously committed real crimes. A charge of sabotage would not have held up in court, as the saboteurs did no actual damage. In his 1962 memoirs, then-Attorney General Francis Biddle wrote that, “If a man buys a pistol, intending murder, that is not an attempt at murder.”42 Even if the men had been convicted, unlikely as it was, the maximum punishment for sabotage was 30 years in prison, but death was not a possible punishment. Conspiracy, a much easier charge to bring than sabotage, carried only a three-year maximum.43 Even tacking on immigration related crimes would only extend the jail time by a year or two.44 The possibility of a light sentence was unacceptable to President Franklin Roosevelt, who very much advocated for the death penalty. In a memo to his attorney general, Roosevelt appeared to flagrantly disregard the principles of due process. Roosevelt urged a guilty verdict, although he admitted that he had not “read 38

Will Lissner, “Invaders Confess,” The New York Times (June 1942).

Fisher, supra note 3, at 92.

40 Id. at 95.

41 Barack Obama would face a similar problem in future, when he attempted to bring Guantanamo Bay detainees to the United States for civil trials. Many people feared that if given proper justice, convictions could not be secured. The detainees were never brought to the United States.

42 Francis Biddle, In Brief Authority (Garden City: Doubleday, 1962), at 328.

43 Fisher, supra note 3, at 95.

44 Id. at 96.

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all the statutes which apply.” In his memoirs, Biddle took a clear message from that introduction, imploring his readers to “notice the Rooseveltian touch,” where the President seemed to say “I know all about law, and anyway I don’t have to read the statutes, this is war.”46 Roosevelt continued to urge a guilty verdict, saying “surely [the saboteurs] are as guilty as it is possible to be, and it seems to me that the death penalty is almost obligatory.”47 The letter concluded with the following: “This is an absolute parallel of the case of Major Andre in the Revolution and of Nathan Hale. Both of them were hanged. Here again it is my inclination that they be tried by court martial as were Andre and Hale. Without splitting hairs, I can see no difference.”48 The nation’s top legal officer drew the frightening conclusion that Roosevelt was saying “Don’t split hairs, Mr. Attorney General.”49 On June 2, 1942, Roosevelt issued Proclamation 2561, establishing a Military Tribunal to try the eight saboteurs.50 Proclamation 2561 declared that the defendants were to be tried in accordance with the “Laws of War,” as opposed to the Articles of War. While the Articles of War were tried with strict congressional limits, the Laws of War were not governed by statute, and therefore defendants were entitled to whatever rights the government decided to provide them.51 Obviously, an executive with a predetermined outcome in mind that was allowed to set the boundaries of a trial led to an unfair trial. The tribunal lowered the standard for evidence admissibility, required fewer votes than usual to secure a death sentence, closed the proceedings to the public and vested final determination in the president.52 Proclamation 2561 also explicitly denied the defendants the right to appeal, saying “Such persons shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States.”53 If allowed to proceed, there must have been little doubt as to what the verdict and punishment would be.

Not content with little more than summary execution, the Nazi saboteurs challenged the legality of the proceedings. The defendants successfully brought their case to the Supreme Court after the defense council personally met with several justices.54 From start to finish, the case was highly irregular. The briefs for the two sides were submitted the same day as oral argument, leaving the justices little time to 45

45

Franklin D. Roosevelt, Memorandum for the Attorney General (June 30, 1942).

Biddle, supra note 42, at 330.

47 Roosevelt, supra note 45.

48 Ibid.

49 Biddle, supra note 42, at 330.

50 Fisher, supra note 3, at 98.

51 Ibid. Bush used the same strategy, allowing the Guantanamo Bay tribunals to operate without Congressional oversight for nearly four years. He would also copy the language of Proclamation 2561 almost exactly when establishing his own system of military tribunals.

52 Fisher, supra note 3, at 100-101.

53 Franklin D. Roosevelt, Proclamation No. 2561 — Denying Certain Enemies Access to the courts (1942).

54 Fisher, supra note 3, at 107.

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prepare. Argument stretched on for nine hours over two days. The actions of the justices, too, were improper and controversial. Justice Stone’s son-in-law served on the defense team, while Justice Frankfurter and Justice Byrnes also had tangential and questionable ties to the case. 57 There were several key issues debated. First, there was the issue of the specific charges levied against the saboteurs. The defense argued that their clients were innocent of charges II and III (dealing with spying and sabotage) but did not challenge the legality of the accusations. The defense took issue with charges I and IV, however. Charge I accused the saboteurs of acting “contrary to the law of war.”58 The prosecutors argued that this was a charge too broad to have any real meaning, analogous to accusing someone of committing “a common law crime.”59 The defense also took issue with Charge IV: conspiracy.

Conspiracy, they argued, is not generally accepted as a violation of the laws of war and is not triable under a military commission.60 55

A.

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Decision and Controversy

So as not to further delay the procedures of the Military tribunal, the Court, in an unusual and controversial move, issued a unanimous Per curiam decision without an opinion the day after oral argument. Speaking to reporters, Justice Stone upheld the authority of the tribunal, giving the proceedings the legal authority they needed to complete their work.61 The outcome of the trial was swift and unsurprising.

On August 1, the tribunal found all eight men guilty and deserving execution, although Roosevelt chose prison sentences for Ernest Peter Burger and Dasch, the FBI informant.62 On August 8, the six men condemned to die were electrocuted.63 They had infiltrated America on June 12 and were caught, tried, and executed all in under two months.

The Court was now in an awkward position. The rushed justice they rendered had resulted in the deaths of six men before the court was able to draft a full opinion. On September 10, a month after the execution of the Nazis, Justice Stone wrote to Justice Frankfurter that he found it “Very difficult to support the Government’s construction of the articles [of war].”64 However, it was a little late for the justices to suddenly realize the error of their previous judgements, their verdict had already been carried out. The Court was stuck between a rock and a hard place.

They had to either recant their earlier ruling and admit they had wrongfully allowed 55

Ibid.

Ibid.

57 Fisher, supra note 3, at 108.

58 Douglas O. Linder, “Charges Against the 8 Saboteurs.” https://www.famous-trials.com/nazisaboteurs/2440-charges-against-the-8-saboteurs.

59 Fisher, supra note 3, at 109.

60 Id. at 334.

61 Fisher, supra note 3, at 113.

62 Id. at 114.

63 Ghosts of DC, “Six Nazi Saboteurs Executed In Washington.” https://ghostsofdc. org/2012/02/09/six-nazi-saboteurs-executed-in-washington 64 Fisher, supra note 3, at 114.

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the execution of six men, or they could create an opinion that was contrived and difficult to defend. Chief Justice Stone chose the latter, writing that he was too hesitant to “leave the present court in the unenviable position of having stood by and allowed six to go to their death.”65 The opinion the court drafted was scattered, narrow and largely incomplete.

One question before the court was legality of the establishment of the tribunal itself. Certainly, under the Constitution, Congress can establish military tribunals “to define and punish… Offences against the Law of Nations.”66 But to what extent does the commander-in-chief have the ability to create military tribunals unilaterally, as Roosevelt did?

The Court ruled that it did not have to decide such a question, flimsily arguing that Congress had granted the president power to establish tribunals by statute.

The court invoked what are known as the Articles of War, an 1806 statute that remains on the books even today, that broadly defines the powers of various bodies during wartime.67 Article 15 references the courts-martial, which is the process of judging crimes of soldiers of one’s own army and a process that Congress, in Article 12, has granted the president full control over. 68 The most straightforward and faithful interpretation of Article 15 is that Congress declares that the president has power over the court-martial, and that that power simply doesn’t detract from the president’s power, whatever that may be, over military tribunals. This is not the interpretation the court selected. The Court argued that Congress, via Article 15, granted the president the same complete power over military tribunals as he had over court-martial, which is to say. The Court wrote “The Articles also recognize the ‘military commission’ appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by courts martial.”69 This is a misinterpretation of the phrase “shall not be construed as depriving military commissions... of concurrent jurisdiction.”

Roosevelt’s unilateral establishment of a military tribunal via Proclamation 2561 would have been legally questionable without congressional support, but the Supreme Court’s liberal interpretation asserted that Congress had given approval.

The question of whether the president can unilaterally create a military tribunal without congressional approval has never been answered.

As for the issue of the Milligan precedent, the court’s reasoning was vague at best. Ex parte Milligan found that the government could not establish military tribunals to try civilians in cases where civil courts were still in operation. For this opinion, the key word was “civilian.” The court found that “No stretch of interpretation”70 could lead to the providing of rights to the saboteurs. “We cannot say that congress, in preparing the Fifth and Sixth Amendments, intended to extend 65

Fisher, supra note 3, at 115.

U.S. Const. art. 1, §8, cl. 10.

67 This is not to be confused with the Law of Nations, a generally agreed upon code of international norms and laws.

68 United States Statutes at Large, Ninth Congress, first session (1789-1848), at 359-372.

69 Ex parte Quirin, 317 U.S. (1) 1942.

70 Fisher, supra note 3, at 110.

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trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission,”71 wrote the Court. Essentially, the Supreme Court distinguished between the facts of Milligan’s case and the facts of the case of the saboteurs, saying that the Nazis committed worse crimes than Milligan. This leaves an unfortunate amount of room for interpretation. The Court declined to establish any clear guidelines about the types of people Milligan does or does not apply to, simply stating that the saboteurs were “plainly within”72 the boundaries of military tribunal jurisdiction. The Court once again dodged the thorny question what constitutes an enemy belligerent and who is entitled to protection.

The Court again, upon being forced to cover up for their rush job at the beginning of Quirin, avoided addressing all of the charges levied against the men.

The Court found that charge I, committing or attempting to commit sabotage, was a violation of the laws of war and was prosecutable. Conspicuously absent from the court’s opinion, however, was any mention of the controversial fourth charge, conspiracy “to commit each and every one” of charges I, II and III. The court’s silence on this issue is telling. Like before, the Court had a hard time justifying the killing of six men, and therefore avoided anything that might not hold up to scrutiny. The Court’s lack of confidence in their initial decision is a distressing miscarriage of justice.

In writing such a narrow piece, the court concedes that their decision is to be considered as non-precedential as possible. In fact, when the same justices faced the same question of speed versus rigor in the trial of Julius and Ethel Rosenberg, they chose to do the opposite of what they had done a decade earlier in Quirin.

Justice Frankfurter wrote that when the court was asked to issue a decision and write the opinion later, “Justice Jackson opposed the suggestion also, and I [Justice Frankfurter] added that the Quirin experience was not a happy precedent.”73 Justice Douglas, in a 1962 interview, echoed Frankfurter’s sentiments, calling the Quirin process “extremely undesirable.”74 As discussed later in this piece, the government cites Quirin as an example in a landmark Guantanamo case in 2015.

The circumstances surrounding the Quirin Decision will show why that argument was flawed.

V.

Guantanamo Bay and 9/11 A.

Bush’s Military Order

The events of 9/11 shook America to its core, and swift and dramatic retaliation was needed to bring justice to the perpetrators. On November 13, 2001, President George W. Bush issued an executive order establishing military tribunals to try enemies of the United States. Bush’s order, while similar to Roosevelt’s documents, were unique in its scope. First, Bush’s order described, unsettlingly 71

Ex parte Quirin, 317 U.S. (1) 1942, at 44.

Id. at 46.

73 Fisher, supra note 3, at 124.

74 Ibid.

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broadly, the class of people that could be tried. Whereas Roosevelt often specified individuals or well defined groups in his military orders, Bush extended the class to any non-citizen who “has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy.”75 The number of people who committed the broadly defined crime of having “aided and abetted” terrorist acts was staggeringly large (up to18 million people).76 This contrasts with Roosevelt’s order in Quirin, in which he authorized courts with eight specific defendants in mind.77 President Bush also denied defendants the right to habeas corpus in court, writing “the individual [accused] shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.”78 The removal of habeas corpus petitioning would be the subject of controversy going forward.

B.

Limits and Rights Granted During the Tribunal

Bush’s unilateral creation of military tribunals was controversial, even in the post 9/11 world marked by executive overreach. Bush’s order was criticized by politicians on both sides of the aisle,79 and the American Civil Liberties Union accused the order of “stripping away basic rights.”80 The American Bar Association challenged the ability of the president to unilaterally create tribunals without congressional support, calling the idea “at least open to question.”81 The ABA report also argued that military tribunals should be limited to a much smaller number of cases, and that the habeas corpus restrictions imposed by the Bush order should be removed.

In response to criticism, the Department of Defense issued new guidelines for the tribunals on March 21, 2002, in the form of “Military Commission Order No. 1.” The document laid out many of the basic rights defendants had in a tribunal.

The order allowed for, but did not guarantee, the “ability to retain services of a civilian attorney.”82 Several other benefits were allowed to the defense, including the presumption of innocence, the ability to obtain documents and witnesses and 75

George W. Bush, “Military Order of November 13, 2001,” Federal Register Vol. 66 No. 222, at Section 2.

76 Fisher, supra note 3, at 169.

77 Ibid.

78 Bush, supra Note 75, at Section 5.

79 Fisher, supra note 3, at 172.

80 Timothy H. Edgar, “Memorandum to Congress on President Bush’s Order Establishing Military Tribunals,” ACLU (November 2001).

81 Fisher, supra note 3, at 178.

82 Department of Defense, “Military Commission Order No. 1,” DoD (March 2002), at 5.

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the right to be present at one’s own trial. In 2004, the Pentagon issued updated orders, mandating that defense counsel be notified when their clients were being monitored and allowed lawyers to delay trials for personal or professional reasons, among other protections.84 Even with these protections, however, the deck was still stacked against defendants. The National Association of Criminal Defense Lawyers called the act of representing clients under such restrictive circumstances “unethical,” while the ABA claimed that it would be “almost impossible to render effective assistance of counsel.”85 83

C.

2006 and 2009 Military Commissions Acts

There were some successful challenges to the status quo in Guantanamo Bay. In 2005, Congress passed the Detainee Treatment Act, which forbade detainees in Guantanamo from seeking a writ of Habeas Corpus from a United States court, a law the Supreme Court invalidated in Hamdan v. Rumsfeld.86 More importantly, the Court ruled in Hamdan that the creation of the Bush military tribunal system violated congressional restrictions vis-à-vis habeas corpus limitations.87 The court did not rule, however, that habeas corpus restrictions were unconstitutional, just that the executive branch required congressional approval. This decision led to the creation of the 2006 Military Commissions Act (MCA), that specifically enabled the president to continue to conduct military justice.88 The 2006 MCA codified several new practices surrounding the treatment of detainees, most of them harmful to inmates. First, in response to Hamdan, the 2006 MCA established that “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding.”89 The 2006 MCA also codified a relaxation in the admissibility of evidence. While the act prohibited torture, it took an “expansive view” of the kinds of evidence permitted, even if it was obtained through coercion.90 The 2006 MCA defined combatancy in broad terms, allowing for the prosecution of anyone connected to terror. The law stated that anyone “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States” was liable for prosecution.91 The phrase “material support” was particularly alarming to civil liberties groups, as it blurred the line between combatants and civilians, allowing for retribution against people only tangentially involved in anti-American 83

Fisher, supra note 3, at 180.

Id. at 187.

85 Ibid.

86 Curtis A. Bradley, “The Military Commissions Act, Habeas Corpus, and the Geneva Conventions,” 101 American Journal of International Law No. 2 (April 2007), at 325.

87 Ibid.

88 Id. at 327.

89 Military Commissions Act of 2006, Pub. L. 109-366, § 950w 120 Stat. 2600 (2006).

90 Jack M. Beard, “The Geneva Boomerang: The Military Commissions Act of 2006 and U.S. Counterterror Operations,” American Journal of International Law No. 1 (January 2007), at 59 91 Military Commissions Act of 2006, Pub. L. 109-366, § 950w 120 Stat. 2600 (2006), at 59.

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operations.

In 2009, as part of a larger strategy of closing Guantanamo, President Obama and the newly democratic Congress passed the 2009 Military Commissions Act. While it permitted the continued use of military tribunals, it established many more safeguards. Many of the reforms in the 2009 MCA were aimed at making the military commissions resemble civil trials. Lawyers were provided for the accused, some unfavorable verdicts could be appealed, the defendant was presumed innocent until proven guilty, and the standards to admissible evidence were raised to largely bar coercive statements, among other protections.93 The law is not without its issues, as it did not afford those accused of violations of the laws of war a trial on par with the civil trials. However, it was certainly a step in the right direction.

D.

92

Guantanamo Bay and Its Failures

The abuses and torture in the Guantanamo Bay military prison are well documented. Both Congress and the Obama Administration found that banned “enhanced interrogation” had been used against detainees. The Bush Administration tried to deny the Guantanamo detainees habeas corpus rights by holding the prisoners in Cuba, in the hopes that the Supreme Court would agree to deny the right of appeal to these individuals. President Obama planned to bring Guantanamo detainees to the United States for trial as common criminals replacing the swift substitute for justice some detainees were given in their hearings before military commissions. Nearly two decades later, the prison remains open. Despite attempts from Obama, congressional leadership on both sides of the aisle have largely obstructed the transfers of detainees to the United States. This congressional effort culminated in the overwhelmingly passed 2015 National Defense Administration Act94 which prohibited the use of funds for “the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba to or within the United States.”95

VI. Case of Al-Bahlul v. United States A.

Background

One particularly interesting detainee at Guantanamo Bay was Ali Hamza Ahmad Sulieman Al-Bahlul. Al-Bahlul was a close associate of Osama Bin-Laden who produced Al-Qaeda propaganda. In 2008, after a lengthy stay at Guantanamo, Al-Bahlul stood trial before a military commission and was found guilty of “conspiracy to commit war crimes, providing material support for terrorism and 92

Military Commissions Act of 2006, Pub. L. 109-366, § 950w 120 Stat. 2600 (2006), at 60.

Jennifer K. Elsea, “The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues,” Congressional Research Service (August 2014).

94 Dan Roberts, “Senate passes legislation barring transfer of Guantánamo prisoners to US,” The Guardian (November 2015).

95 National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, §1001, 129 Stat.

726 (2015).

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solicitation of others to commit war crimes.” Al-Bahlul and his defense team questioned the legality of the military tribunal to try conspiracy, arguing that it was not against the laws of nations, and therefore could not be tried by military tribunal. In 2015, Al-Bahlul’s case was heard by the D.C. Circuit Court of Appeals.

Judge Kavanaugh wrote the majority opinion ruling in favor of the government and upholding the tribunal’s sentence.

96

B.

Government’s Arguments

Arguing in favor of upholding the tribunal sentence handed down to AlBahlul, the Obama Administration’s team argued that while conspiracy was not technically against the law of war, it could be tried in a military tribunal, writing in their brief that Congress may establish military commissions to try “at a minimum, (i) International law of war offense and (ii) offenses that are not international law of war offenses but have historically been tried by U.S. Commissions.”97 The specific charge that has been historically tried, argues the government, is conspiracy. The government specifically invokes the trial of the Nazi Saboteurs and Ex parte Quirin to support their claim historically. In his decision in Quirin, Justice Stone argued that spying, the offense the Nazis stood accused of, was not a violation of the law of war, but had been tried as one since the colonial era. Therefore, reasoned Stone, the founders must have intended spying to be an offense triable by commission.98 The precedent Stone sets in his opinion supports the government’s claims. The government argued that conspiracy, like spying, had always been tried, and therefore always could be. The government used two main precedents to prove their contention that conspiracy had always been prosecutable, citing “The trials of the Lincoln conspirators and the Nazi saboteurs,”99 both precedents that have been discussed at length above.

C. The Mistaken Precedent and the Exceptional Laws of Espionage The government’s arguments in this case were flawed top to bottom. The government argued that historically tried crimes can be adjudicated on in the present, an idea which does have a solid foundation in the Quirin decision. However, Justice Stone’s argument in Quirin is based on a fundamental misunderstanding about the intentions of the founders. While Stone is correct that spies in the revolutionary times, and Major John Andre specifically, were executed, he misunderstood the rationale for their execution. First, Stone ignored the actions of the founders themselves with regards to spying. Especially during revolutionary times, spying was commonplace, and used by both sides in the Revolutionary War, as even George 96

Michael Paradis et. al. “Petition for Rehearing en Banc.” https://www.cadc.uscourts.gov/ internet/opinions.nsf/BD49CD0AAB20F69A85258052006400AB/$file/11-1324-1641851.pdf, at 7.

97 Id. at 2.

98 Ex parte Quirin, 317 U.S. (1) 1942, at 41.

99 Paradis, supra note 96, at 15.

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Washington famously sent Nathan Hale behind British lines to gather intelligence.

Georgetown Law Professor Martin Lederman writes “it is hard to imagine that anyone at the time thought Washington (or Hale) had violated the law of war.”100 If they were not offenses against the law of war, however, why were Hale and John Andre executed?

Lederman goes on to argue that spying is a unique case where execution is preventative, not punitive. Spying is not a war crime but allowing a spy to live presents the risk that they could continue to communicate intelligence to the enemy.

For that reason, at the time of the revolution, it was seen as acceptable to execute spies without charging or convicting them of crimes. Further proof of this theory comes from the fact that spies cannot be executed if they are discovered in their own camp. The international laws of war declare that a spy must be “treated as a prisoner of war and incurs no responsibility for his previous acts of espionage” if found inside his home territory. 101 This exception appears for no other group and implies that executing spies is only acceptable insofar as it prevents them from transmitting information. 102 If a spy has returned home, and therefore poses no such risk, they can face only the same treatment that is given to regular prisoners of war, since “all possibility of the spy’s information reaching the enemy is destroyed.”103 Even if one were to argue, as Judge Kavanaugh did in his decision, that international law is not binding on Congress in this case, American law recognizes spying as an anomalous case as well. 104 Article 82 of the Articles of War discusses rules of spying and the situations in which spies can be executed. The articles declare that spies are liable to suffer death, but only if they are “found lurking in or about any of the fortifications, posts, quarters or encampments of any of the armies of the United States,”105 reinforcing the idea that execution of spies is merely preventative. Justice Stone misunderstood this distinction, believing that execution of spies in one’s own territory was done to punish a crime, but the strange law surrounding the execution of spies, as well as Washington’s own example, demonstrates Stone’s error, and the government’s error, in relying on this interpretation.

D.

Legal Issues with the Historical Conspiracy Charge

The government declares in their Al-Bahlul brief that the Lincoln and Nazi saboteur cases “were trial for the offense of conspiracy,” but the truth is much more complicated. 106 Although the Lincoln conspirators were convicted of conspiracy, the legal backing for the tribunal included virtually no mention of that specific crime. In his justification of the tribunals, James Speed wrote that he was asked to 100

Martin S. Lederman, “Of Spies, Saboteurs and Enemy Accomplices,” 105 Geo L.J. (March 2017), at 1597-1598.

101 Id. at 1601.

102 Ibid.

103 Id. at 1602.

104 Al-Bahlul v. United States of America, 3 (D.C. Cir. 2016), at 5.

105 United States Statutes at Large, Ninth Congress, first session (1789-1848), at 359-372, at Article 82.

106 Paradis, supra note 96, at 15.

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decide “whether the persons charged with the offense of having assassinated the President can be tried before a military tribunal, or must they be tried before a civil court.”107 Notably, Speed claimed that what the accused are being tried for is the substantive crime of having “assassinated the president,” not the vaguely defined “conspiracy.” Speed concluded, dubiously, that the crime of assassination can fall on all eight being tried: they had all killed the president. The word conspiracy does not appear in the decision at all, and Speed only acknowledges that charge in passing.108 Therefore, while the tribunal convicted the accused on several counts, conspiracy among them, Speed ducked the question of whether the conspiracy charge was valid.

The Supreme Court took a similar route as Speed did when writing their Ex parte Quirin opinion. In their decision, the court accepts the legitimacy of Charge I, which alleges that the saboteurs went behind American lines for the purposes of destroying infrastructure.109 The court then argued that it did not have to pass judgement on the legitimacy of Charges II and III, which dealt with aiding the enemy and spying, respectively, since “the first specification of Charge I sets forth a violation of the law of war.”110 Conspicuously absent from the court decision at all is any mention of Charge IV, alleging conspiracy, and the court convicts the men while bypassing conspiracy.111 While these precedents fail to stand up to scrutiny from a legal standpoint, the historical argument against them may be stronger still.

VII. Conclusion and the Issue with Relying on Historical Precedent for Military Tribunals While there are clearly several technical issues with the government’s reading of history with regards to the Johnson tribunal and Ex parte Quirin, there is a larger philosophical point to be made about the use of these examples as justifications for legal precedents. The abuses and miscarriages of justice present in these trials have been well-documented throughout this paper. The trial of the Lincoln conspirators was created and executed in the interest of satisfying a nation hungry for revenge.

The trial was unfair and widely seen, even at the time, as a precedent not to be repeated. The government’s other main example, Ex parte Quirin, is no less shameful. Motivated by a desire to save the reputation of federal investigators and to secure death sentences for people who had not committed real crimes, the tribunal was a poor excuse for justice. The Supreme Court, too, in this instance, did not have its finest hour, as they were forced to write an opinion they did not entirely believe in, having already sent six men to the chair. The government in this case, therefore, argues that the standard going forward should be informed by copying some of the 107

11 Op. Att’y Gen. 215, 215 (1865).

“I will proceed to give the reasons why I am of the opinion that the conspirators not only may but ought to be tried by a military tribunal.”

109 Ex parte Quirin, 317 U.S. (1) 1942, at 317.

110 Ibid.

111 Charge IV is never mentioned, and “conspiracy,” or any variation thereof, is only written in the background, where Justice Stone writes what the petitioners were charged with.

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most infamous moments of American justice. The two examples mentioned by the government are not unique in their ignominy. American military tribunal history is fraught and looms as a stain on democracy, from General Jackson executing men found innocent and suppressing free speech, to today, where inmates are tortured and held in Guantanamo Bay without trial. To suggest that military tribunal history be repeated through precedential law reinforces and legitimizes the deadly mistakes America has made. New precedents should be established, ones that value justice and temperance over expediency and revenge. It is easy to give justice to allies, it is hard to give it to foes. The strength to administer justice and due process even, and perhaps especially, to enemies can show the true character of a nation.