Topic: Constitution, the Law, and the Courts

Dissenters in Fifth Circuit Qualified Immunity Case Misunderstand the Relationship between “Originalism” and Section 1983

Yesterday I wrote about two recent en banc decisions from the Fifth and Eighth Circuits on the subject of qualified immunity, and how those cases fit into the rising tide of opposition to the doctrine generally. But I wanted to expand upon a point of disagreement between two of the dissents in Cole v. Hunter (the Fifth Circuit case), which may prove to be one of the central questions if and when the Supreme Court decides to reconsider the doctrine – namely, the relationship between qualified immunity, Section 1983, and originalism. I’ll note that both Josh Blackman and Damon Root have already written about this aspect of the Cole decision, but as someone who’s spent the better part of the last two years waging a campaign against qualified immunity I wanted to offer my take on the many ways in which Judges James Ho and Andrew Oldham seriously misunderstand qualified immunity, Section 1983, and originalism itself.  

As I noted previously, Judge Don Willett – a Trump appointee and one of the judges on his shortlist for the Supreme Court – has emerged as a prominent critic of qualified immunity, and has now repeatedly urged the Supreme Court to reconsider the doctrine. A few months ago, in Zadeh v. Robinson, he explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” Judge Willett again picked up this theme in his separate dissent in Cole, beginning his opinion with the assertion that “[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.” (Note that Judge Willett agreed with the other dissenters that, under current precedent, the defendants in Cole were entitled to immunity, which is why his opinion was also a dissent, even though it takes a very different approach.)

Perhaps sensing that the tide is turning against qualified immunity, Judges Ho and Oldman – both Trump appointees themselves – wrote separately to respond to the general idea that qualified immunity should be reconsidered. In particular, they say the following about the “originalist” critique of qualified immunity – i.e., the historical fact that the common law of 1871 (when Section 1983 was first passed) provided absolutely nothing like the sweeping, across-the-board defense for state officials that characterizes qualified immunity today:

[S]ome have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution… . As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J., joined by Thomas, J., dissenting).

A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand, as well as limit, § 1983 liability:

“[O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted … . [But] [t]he § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom, or usage of any State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law.”

In other words, qualified immunity may well lack any plausible textual or historical basis. But because, say Judges Ho and Oldham, the Supreme Court erroneously expanded the reach of Section 1983 in Monroe v. Pape (by holding that state officials could be sued even when they were acting contrary to a state’s own laws), then two wrongs make a right, and we should just keep qualified immunity as is, as a kind of compensating error. Indeed, they conclude this section of the opinion by saying: “If we’re not going to do it right, then perhaps we shouldn’t do it at all” – with “it” here meaning, actually interpret statutes as written.

Lest this argument seem like an abstruse, academic rejoinder, I can personally attest, having now participated in or observed several debates on qualified immunity, that this is the most frequently and fervently raised rebuttal to the otherwise insurmountable assertion that modern qualified immunity lacks any plausible historical basis. But despite its veneer of reasonableness, this “two wrongs make a right” argument is so deeply, fundamentally flawed, on so many levels, that it’s worth spelling out each of them in detail:

First, perhaps a pedantic point, but Judges Ho and Oldman’s august reference to the “Founder’s Constitution” is out of place in this discussion. Qualified immunity is not a constitutional doctrine; it is, nominally, a gloss on the statute currently codified at 42 USC § 1983, but which was originally enacted by the Reconstruction Congress in 1871. And as even the Supreme Court has acknowledged, “the statute on its face does not provide for any immunities.” Malley v. Briggs, 475 U.S. 335, 342 (1986). Thus, the only conceivable legal basis for qualified immunity is the Supreme Court’s false assertion that “[c]ertain immunities were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). I will not go into detail here explaining why this defense of the doctrine fails utterly as a matter of actual historical fact, but Will Baude has addressed the question extensively, and I summarize the issue here. Suffice to say, the debate here isn’t over “originalism” as an overarching theory of constitutional interpretation, and isn’t really about the Constitution at all – we’re talking about how to correctly interpret and apply a particular statute.

Second, Judges Ho and Oldman (and Justice Scalia, in his Crawford-El opinion) seem to take it as a given that Monroe v. Pape was wrongly decided, which is what gives them justification to accept the obvious (but in their view, counter-balancing) errors with qualified immunity itself. But that assumption simply isn’t justified – indeed, there’s a very good originalist argument that Monroe was, in fact, correctly decided, which of course would entirely negate this “two wrongs make a right” defense of qualified immunity. To restate Justice Scalia’s (and by extension, Judges Ho and Oldman’s) criticism of Monroe: The text of Section 1983 creates liability for those who act “under color of any statute, ordinance, regulation, custom, or usage of any State.” Thus, in Justice Scalia’s view, a state official can only be liable under Section 1983 if they were, in fact, acting in accordance with state law. Therefore, by holding that state officials could be liable even when their actions were not authorized by state law, the Monroe Court massively expanded liability under Section 1983, in contravention of the statutory language.

Though superficially plausible, the problem with this argument is that it glosses over the meaning of the phrase “under color of.” After all, the statute could have been written to cover violations committed “in accordance with any statute, ordinance, regulation, custom, or usage, of any State.” If that were what the statute said, Justice Scalia’s criticism of Monroe would be well taken. But, as a historical, originalist matter, that is simply not what the phrase “under color of” means. To the contrary, this phrase is actually a longstanding term-of-art which was well understood to encompass false claims to authority. As detailed by Steven Winter in an article on exactly this subject, the use of this phrase goes back more than 500 years, to an English bail bond statute that voided obligations taken by sheriffs “by colour of their offices,” if they failed to comply with statutory requirements. In other words, it encompassed illegal acts by government agents who abused or exceeded their statutory authority – which is exactly the sort of unlawful conduct recognized by Monroe. Therefore, contra Justice Scalia’s suggestion in Crawford-El, a faithfully originalist understanding of Section 1983 would seem to support the result in Monroe. And if that’s the case, then obviously the whole “two wrongs make a right” theory collapses.

Third, let’s assume – as I do not think is the case – that Monroe v. Pape was incorrectly decided. If we are unwilling to revisit that decision on “originalist” grounds, is that a sufficient reason to refuse to reconsider qualified immunity as well? Absolutely not. For one, even if Monroe were wrong, it meets absolutely all the traditional criteria for respect as precedent – even if incorrect, the question is at the very least a close call, in light of the textual/historical argument I noted above; it has produced a clear, unambiguous rule, which lower courts routinely apply without any confusion or disagreement; and it has been thoroughly accepted by both the judiciary and the general public as legitimate and appropriate.

In sharp contrast, modern qualified immunity doctrine is at the opposite end of the spectrum on all of these criteria. No one – absolutely no one – will look you in the eye with a straight face and tell you that contemporary qualified immunity doctrine represents the best interpretation of the text and history Section 1983. As evidenced by Justice Scalia’s Crawford-El opinion and Judges Ho and Oldham’s dissent in Cole, the judicial defenders of qualified immunity aren’t even trying to make this argument. Indeed, the most robust defense of the doctrine that I’m aware of is the recent piece by Aaron Nielson and Chris Walker, appropriately titled “A Qualified Defense of Qualified Immunity” – and even there, the most they argue is that the historical evidence isn’t quite as one-sided as Will Baude suggests, and that while some form of qualified immunity might be justified, the Court’s current doctrine is still in need of correction.

Moreover, in contrast to the clear rule from Monroe, the Court’s “clearly established law” standard has proven hopelessly amorphous, malleable, and incapable of consistent, predictable application in lower courts. And as evidenced by the diverse and growing chorus of judges, academics, and public-policy voices calling for the Supreme Court to revise or abolish the doctrine, it has hardly been accepted as legitimate. Far from being a mere technical error, this noxious doctrine regularly denies relief to victims of egregious state misconduct, undermines accountability for government agents at a structural level, and exacerbates the national crisis of confidence in law enforcement generally. Thus, even if both Monroe and qualified immunity merit originalist criticism, there is a far, far stronger case for reexamining the latter than the former.

Fourth, setting aside the object-level questions of whether Monroe was correct, how bad it is compared to qualified immunity, etc., we should reject the “two wrongs make a right” approach to judicial decision-making at a fundamental level. Yes, the Supreme Court sometimes reaches the wrong answer. Yes, sometimes those wrong answers will distort other areas of law. But in a world where we’re going to predictably disagree on which cases are correct or not, “you got this case wrong so I’m allowed to get this other case wrong” is a license for endless, unresolvable turmoil. If qualified immunity has gone “too far” in correcting for the supposed mistake in Monroe, are judges allowed to distort the meaning of other statutes to fix this problem? What compensating errors will be necessary to address the distortion to those statutes? If we all agree the Supreme Court has made some mistakes, then “two wrongs make a right” becomes a fully general argument for defending flawed legal conclusions, so long as they can plausibly be tied to a past alleged mistake. That way lies madness, not the rule of law.

More generally, Judges Ho and Oldham suggest that, if we’re going to reconsider qualified immunity on originalist grounds, we’re somehow honor-bound to reconsider Monroe as well. But that’s just not how doctrine is developed in our adversarial system. The Supreme Court doesn’t act as a regulatory body, issuing advisory opinions on several related subjects simultaneously so as to ensure general harmony in the case law; rather, it resolves disputes in the individual cases it decides to take. Textualism and originalism, at their best, aim to provide a principled, predictable, value-neutral means of deciding cases. Of course, some questions will still be hard even under this approach, and how originalists should deal with non-originalist precedent is a famously thorny problem. But the best that judges can do is try to get the right answer in each case that comes before them – and the “two wrongs make a right” theory renders this principled approach impossible.

* * *

In my view, the opponents of qualified immunity have made a persuasive argument that the doctrine is utterly without legal or historical justification, that it is impossible to apply with the consistency or predictability that generally warrant respect for precedent in the first place, and that is actively corrupting what would otherwise be the best means we have of ensuring accountability for government agents. That argument deserves to be met on its own terms. If the defenders of qualified immunity think Monroe is wrong too, then fine. Let them make that argument. Let them engage in the detailed textual and historical analysis that would actually be necessary to justify it. Let them convince the judiciary and the public at large that this error is so egregious and harmful that it warrants reconsideration. I’m quite skeptical these folks actually want to make such an argument, but if they do, it deserves to be met on its own terms as well. But it is cowardly, unprincipled, and decidedly anti-originalist to refuse to meet the challenge to qualified immunity face-to-face, just because there’s some other alleged mistake to hide behind.

Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity

In the last week, the Fifth and the Eighth Circuits, sitting en banc, have each issued major, fractured decisions on the subject of qualified immunity – the judge-made defense to civil rights claims under Section 1983, which shields state actors from liability for their misconduct, even when they break the law. In Cole v. Hunter, decided yesterday, the Fifth Circuit, in an 11-7 decision, affirmed the denial of summary judgment for two defendant police officers, who shot a teenage boy and then lied about what happened. The lawsuit brought by the victim and his family will therefore be able to go to trial, making this one of the rare instances where a civil rights plaintiff is able to overcome qualified immuniity. But in Kelsay v. Ernst, decided last week, the Eighth Circuit held, 8-4, that a police officer was entitled to qualified immunity, after he had grabbed a small woman in a bear hug and slammed her to ground – because she walked away from him. Although the courts here reached different outcomes, both cases amply illustrate the legal, practical, and moral infirmities with qualified immunity. The fractured decisions and many separate opinions in both cases also make clear that the doctrine is on increasingly shaky footing with both the judiciary and the general public.

I. Cole v. Hunter: A rare but narrow victory for a victim of egregious police misconduct

This Fifth Circuit case arose out of an incident in Garland, Texas in October 2010, when police were looking for Ryan Cole, then a 17-year-old boy, who had reportedly been walking around the neighborhood with a handgun. Ryan was seen by some officers and ordered to stop, but Ryan pointed the gun at his own head and walked away toward a wooded area. When Ryan reemerged, a group of officers observed him for about five seconds and did not announce themselves or give any warning. Then, while Ryan was facing away from them with the gun still pointed at his head, one or more of the officers fired at him, striking him several times and causing him to involuntary discharge his own gun into his skull and brain. When two of the officers were questioned after the shooting, they falsely claimed that Ryan had turned to face them and pointed his gun at them before they fired – an assertion belied by ample forensic and physical evidence (specifically, the location of Ryan’s bullet wounds, and the location of shell casings and Ryan’s blood).

Ryan and his family brought a civil rights suit against these officers, claiming that they used excessive force and fabricated evidence in violation of Ryan’s Fourth and Fourteenth Amendment rights. The district court denied qualified immunity to the defendants at summary judgment, a panel of the Fifth Circuit affirmed, and the Fifth Circuit then agreed to rehear the case en banc. The court then held, 11-7, that a reasonable jury could have found that Ryan posed no threat to the officers, and that it was clearly established that “shooting a mentally disturbed teenager, who was pointing a gun the entire time at his own head and facing away from the officer, in an open outdoor area, and who was unaware of the officer’s presence because no warning was given prior to the officer opening fire, was unlawful.” Although the defendants presented a starkly different view of the facts, the majority correctly recognized – as courts often fail to do in qualified immunity cases! – that it lacked jurisdiction to consider the officers’ competing factual narrative in this appeal. Rather, the disputed facts would have to be resolved by a jury.

Seven judges dissented, however. The principal dissent, by Judge Edith Jones, accused the majority of defining “clearly established law” at too high a level of generality, arguing that even if the facts clearly established that Ryan posed no threat (and thus that shooting him violated the Fourth Amendment) the relevant question for purposes of qualified immunity was “whether every reasonable officer in this factual context would have known he could not use deadly force” – and then arguing that no prior cases involved this precise factual context. This framing in the abstract is dutiful to the Supreme Court’s qualilfied immunity jurisprudence, but in application, it’s clear that the degree of specificity employed by the dissent would be practically impossible to overcome. To wit, the dissent went on to say:

[T[he importance of grounding the inquiry in a specific factual context cannot be overstated. In this case, if Officer Hunter had stood a hundred feet away from Cole, or Cole had not been turning toward the officers, or Cole had put the handgun in his pocket and wasn’t touching it, the analysis of qualified immunity could be quite different.

On the one hand, the dissent is correct that the Supreme Court has insisted that immunity analysis be “particularized” to the facts of individual cases. On the other, the example of factual distinctions used by the dissent here plainly illustrate that there will never be a prior case involving all of the potentially relevant facts – and even the Supreme Court has purported to say that a case exactly on point is unnecessary. Thus, while the dissent’s analysis is not a wholly unreasonable application of existing precedent, it demonstrates how the “clearly established law” standard is inherently amorphous, and incapable of consistent, predictable application.

Most notably, Judge Don Willett filed a separate dissent in this case. Although he would have held that “the Supreme Court’s unflinching, increasingly emphatic application of ‘clearly established law’ compel[led] dismissal,” the bulk of his opinion is devoted to explaining that “[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.” Judge Willett’s dissent therefore echoes his recent criticisms of qualified immunity in Zadeh v. Robinson, although he did stress that the Supreme Court has “several ‘mend it, don’t end it’ options,” which would substantially revise the doctrine without eliminating it entirely. Also, he again discussed the Cato-organized cross-ideological amicus brief from Doe v. Woodard, noting that “perhaps the most ideologically diverse amici ever assembled” were urging the Supreme Court to reconsider qualified immunity.

II. Kelsay v. Ernst: Greenlighting egregious and unnecessary police violence against the supposed victim of a crime

Melanie Kelsay, her three children, and an adult friend of hers were swimming at a public pool in Wymore, Nebraska. She and her friend were engaged in what she called “horseplay,” but some onlookers thought he might be assaulting her and called the police. The police arrested her friend and put him a patrol vehicle, even though she repeatedly told them he hadn’t assaulted her; they then decided to arrest her, the alleged victim of this non-crime, because she was “getting in the way of the patrol vehicle door.” While talking with Deputy Matt Ernst, Kelsay saw that her daughter had gotten into an argument with a bystander, and tried to go check on her. Ernst grabbed her arm and told her to “get back here,” but released her. Kelsay then said she needed to go check on her daughter, and again began walking toward her. At that point, without giving any further instructions, Ernst ran up behind her, grabbed her, and slammed her to the ground in a “blind body slam” maneuver, knocking her unconscious and breaking her collarbone.

Kelsay then brought a Section 1983 suit against Ernst, and the district court denied qualified immunity, but a panel of the Eighth Circuit reversed, 2-1. The Eighth Circuit then agreed to rehear the case en banc, and affirmed the panel’s grant of qualified immunity, in an 8-4 decision. The majority, of course, relied on the idea that there were no prior cases involving the “particular circumstances” of this case; i.e., no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.” No case exactly on point, qualified immunity, Q.E.D. The principal dissent by Chief Judge Lavenski Smith correctly noted that that the Supreme Court has never required “a case directly at point,” and that here, an ample body of case law would have “put a reasonable officer on notice that the use of force against a non-threatening misdemeanant who was not fleeing, resisting arrest, or ignoring other commands violates that individual’s right to be free from excessive force.”

To make matters worse, the majority refused even to decide whether Ernst’s conduct did, in fact, violate Kelsay’s Fourth Amendment rights. So any officer could engage in exactly the same misconduct tomorrow, and it still would not be “clearly established” that the conduct was unlawful. Judge Steven Grasz wrote a separate dissent taking issue with this particular aspect of the court’s decision. Though acknowledging that courts have discretion under Pearson v. Callahan to grant immunity without deciding the merits, he argued that the exercise of such discretion was  “inappropriate in this case as it perpetuates the very state of affairs used to defeat Ms. Kelsay’s attempt to assert her constitutional rights.” Judge Grasz clearly grasps the circular nature of qualified immunity, noting that the judiciary’s persistent refusal to decide constitutional questions under Section 1983 “imposes a judicially created exception to a federal statute that effectively prevents claimants from vindicating their constitutional rights.”

III. The rising tide of opposition to qualified immunity

Two circuit courts recently decided to take qualified immunity cases en banc, even though neither case involved any new legal questions or suggested reversals of circuit precedent; that fact itself is a testament to how important this issue has become, and how much rising pressure there is to modify or abolish this doctrine. Cole and Kelsay hardly stand alone as examples of recent or ongoing high-profile qualified immunity cases. Just last month, the Eleventh Circuit issued a truly appalling decision in Corbitt v. Vickers, granting immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The Supreme Court unfortunately denied cert in Doe v. Woodard at the end of its last term, but there’s another outstanding cert petition explicitly calling for the Court to reconsider qualified immunity (Baxter v. Bracey), which will be considered at the long conference on October 1st. And there will probably be additional cert petitions challenging one or more of the decisions in CorbittKelsay, and Cole.

In other words, this issue isn’t going away. Day by day, more and more lower court judges add their voices to the growing chorus calling upon the Supreme Court to reconsider this noxious doctrine, and agitation by public policy groups across the ideological spectrum continues to grow. Some of the Democratic presidential candidates have even started to call for the abolition of qualified immunity. The day of reckoning may well be coming soon.

Corporate Happy Talk and The Duty of Shareholder Loyalty

Yesterday the Business Roundtable released a “Statement on the Purpose of a Corporation” signed by 180 CEOs of major companies. It proclaims “a fundamental commitment to all of our stakeholders,” including customers, employees, suppliers, communities, and, finally, shareholders. It is being widely interpreted as a victory for anti-business campaigners and “corporate social responsibility” advocates, and perhaps also as a repudiation of the shareholder-primacy norm memorably defended (though in no way originated) by free-market economist Milton Friedman.

In reality, as I told Kevin Dugan of the New York Post, the text of the statement in itself signifies little beyond happy talk:

“It would be one thing if they said we’re endorsing having the Delaware courts change this particular legal doctrine, or we’re endorsing a bill in Congress,” said Walter Olson, a senior fellow at the libertarian Cato Institute. “It’s not really clear whether they’re intending to replace any part of the system or do the same things are before, but … smile more.”

Corporate law is a system of rights and corresponding duties that you can take to court. Of the multiple problems with proclaiming a new duty to a broad assortment of stakeholders, the main one, as UCLA lawprof Stephen Bainbridge has put it in a series of on-point articles, is that “managers who are responsible for everyone are responsible to no one.” A vague balancing test as to corporate officers’ and directors’ duties can leave them with more discretion than ever — if they want to close a high-cost plant, for example, they might regretfully decide the interests of customers, shareholders, and sales employees outweigh those of plant employees and communities, while if they choose to do the opposite they’ll have room for that too. Note that the BRT does not speak in terms of a duty that anyone in particular can sue to enforce. For that matter, familiar existing shareholder-primacy norms already allow plenty of leeway for decision-making that takes into account corporate reputation and image, political risk, and so forth — which is one reason the signatories to the BRT statement already engage in plenty of social-responsibility initiatives, some to be applauded and others less so.

Where a vague stakeholder-loyalty norm could really make a difference is in eroding the legal duty of loyalty currently owed to the investors who put up the capital. The chief battlefield is what is called the market for corporate control, as when a board decides whether to accept or spurn a lucrative takeover offer. The law of business organization has for centuries grappled with the “agency problem”: insiders can be strongly tempted to take actions that benefit themselves (by keeping them ensconced in managerial or controlling-owner positions, for example) even if an ownership change would benefit shareholders as a group as well as economic efficiency.

No wonder the Council of Institutional Investors — representing the pension funds, insurance pools, mutual-fund-owning retirees, and others whose interests depend on the duty of loyalty — doesn’t think much of the BRT statement.

Why 1619 Matters in 2019

The New York Times Magazine recently released its “1619 Project,” an initiative marking the 400th anniversary of the first African slaves arriving in North America. The project is ambitious, aiming to “reframe the country’s history, understanding 1619 as our true founding.” A collection of pundits have framed this project as an attempt to “delegitimize” the United States. Such commentary provides an opportunity to consider the state of American race relations and the role of slavery in American history. 

Whether or not the foundation of the United States was legitimate is an interesting political, moral,  and historical question. You can spend a career considering questions about when political violence is justified, what fair representation in a democracy looks like, how to measure and secure the consent of the governed, and what political system best secures natural rights. But these aren’t the kinds of questions many 1619 Project critics have in mind when they accuse it of “delegimitizing” the United States. They’re concerned that highlighting America’s brutal history of slavery and its role in forming the United States undermines the American project; an experiment in self-government. 

The relationship between black people and the white institutions that oppressed them is one of the most consequential features of American history. The most prominent of America’s contradictions is that its Founding documents were written by white men who owned black human beings as farm equipment, yet they expressed a commitment to liberty. 

Thomas Jefferson, the man who believed that it was “self-evident” that all men are created equal owned slaves. James Madison, the “Father of the Constitution” and author of many of The Federalist Papers, also owned slaves and was skeptical of free African Americans being a part of the American polity. After leaving the White House Madison served as the president of the American Colonization Society, which urged freed black people to move to Africa. 

During the Revolutionary War, the British frigate HMS Savage sailed up the Potomac River, its troops burning houses in Maryland in view of Mt. Vernon, George Washington’s Virginia estate. The Royal Governor of Virginia John Murray had earlier issued a proclamation, offering freedom to slaves who fought for Britain. A wartime necessity rather an endorsement of full-throated emancipation to be sure, but it’s nonetheless telling that seventeen of Washington’s slaves fled Mt. Vernon and boarded HMS Savage. To a Virginia slave, housing in a British warship was preferable to the slave quarters belonging to the man who would become the first president of the United States.  

Bewilderment at slave owners proclaiming a devotion to liberty is hardly reserved to 21st century. In a 1775 essay on the American colonies the English writer Samuel Johnson asked not unreasonably, “how is it that we hear the loudest yelps for liberty among the drivers of negroes?” The Founding Father John Adams never owned slaves and opposed slavery, though favored gradual erosion of the institution rather than outright and immediate abolition. His wife Abigail understood the contradiction of the American Founding:

I have sometimes been ready to think that the passion for Liberty cannot be Equally Strong in the Breasts of those who have been accustomed to deprive their fellow Creatures of theirs. Of this I am certain that it is not founded upon that generous and Christian principal of doing to others as we would that others should do unto us… .

That the Founding generation included moral hypocrites is hardly surprising. Every collection of human beings has included flawed people. Anyone scouring history books in search of moral perfection will be left disappointed. 

It’s not clear that the moral hypocrisy of some of America’s founders delegitimizes the United States per se. At worst such hypocrisy makes the founding of the United States far from perfect. Even those who think that it’s a stretch to say that the United States was founded “on” racism can hardly deny that it was founded with racist institutions explicitly protected. The evils of slavery don’t in and of themselves negate the colonists’ complaints about a lack of representation in Parliament or the fact that British officials had subjected colonists to needless, intrusive searches and other abuses against their civil rights. But they shouldn’t be overlooked. 

What is clear is that the United States has yet to fully come to terms with its history of racial violence and oppression. In large part this is because we’re accustomed to measuring our race relations progress through the lenses of military, political, and legislative victories. 

Hundreds of thousands of Americans died in the wake of an illegitimate attempt at secession predicated on the preservation of slavery. The Civil War amendments to the Constitution certainly improved the document, but they hardly erased a culture of violence and racism that made them a necessity. 

Courts Shouldn’t Let President Steel Congress’ Power to Regulate Foreign Commerce

Although the Constitution assigns regulatory power over foreign commerce to Congress, the Trade Expansion Act of 1962 delegates this function to the president. As made obvious by its title, the purpose of this law is to grow foreign commerce by opening trade. Alas, one provision—Section 232—works to diminish international trade by empowering the president to unilaterally regulate imports in the interest of “national security.” When Congress passed Section 232, lawmakers were worried about the possibility that a disruption in the global oil trade might constrain the military’s supply of jet fuel. Accordingly, presidential exercises of Section 232, while rare, always targeted oil imports.

In March of 2018, President Trump smashed the mold and instituted a 25 percent tariff on imported steel products. “Flimsy” is a gross understatement in describing the president’s putative “national security” justification: military requirements for steel represent only three percent of the commodity’s domestic production. Indeed, the United States produces twice as much steel as it imports. More troubling is that the president made no effort to explain why he departed from his predecessors’ practice, which uniformly had accounted for the allied status of countries potentially subject to Section 232. Perhaps most disconcerting of all, President Trump offered no explanation for why he chose to set the tariffs at an even 25 percent and how this figure relates to the “national security.”

Faced with these unprecedented and unreasonable regulations, the American Institute for International Steel (a trade group of steel-consuming companies) and other parties harmed by the tariffs filed suit in the Court of International Trade (“CIT”). They alleged that Section 232 is an unconstitutional delegation of lawmaking power because it allows the president to merely cite “national security” and thereby to regulate imports in any manner.

The CIT conceded the dangers of unbound executive authority, yet refused to provide a constitutional check. According to that court, Section 232 regulation falls into “a gray area where the President could invoke the statute to act in a manner constitutionally reserved for Congress but not objectively outside the President’s statutory authority, and the scope of review would preclude the uncovering of such a truth.”

After the CIT sided with the government, the plaintiffs sought to take the case directly to the Supreme Court, and Cato filed a brief supporting them. Because the Supreme Court denied that petition, their case is now before the U.S. Court of Appeals for the Federal Circuit. Cato has again filed a brief supporting these challengers to the existing legal regime.

We argue that the CIT is wrong in allowing for regulatory “gray areas” where the president may act within the statute but outside the Constitution. In fact, the CIT mistakenly assumed that federal courts may not conduct any oversight of the president’s regulatory powers over international trade. To the contrary, if courts can’t review such actions, then Congress violated the non-delegation principle by giving the president legislative powers that are beyond review. But if courts can review the president’s regulatory powers, then President Trump’s arbitrary steel tariffs have to fail judicial scrutiny.

The case is American Institute for International Steel v. United States.

Repeal Old AUMFs and Salt the Earth

For months now, the Trump administration has pursued a “maximum pressure” campaign that—by accident or by design—has brought the United States to the brink of war with Iran. The branch of government with the constitutional power to declare war ought to have the final word here. Lately, however, Trump officials have hinted that Congress has already had its say—nearly 18 years ago, when it authorized war with Al Qaeda and the Taliban.  

The 2001 Authorization for the Use of Military Force, passed three days after the September 11 attacks, targets the perpetrators of 9/11 and those who “harbored” or “aided” them. In the intervening years, the 2001 AUMF has been stretched far beyond its original purposes—but the Trump team apparently believes it can be stretched further still. In June we learned that, in a closed session, Secretary of State Mike Pompeo gave House members “a full formal presentation on how the 2001 AUMF might authorize war on Iran.” Two weeks ago, at a Senate Foreign Relations Committee hearing, administration officials left the door open to that interpretation with an ominous qualifier: “the administration has not to date interpreted [the 2001 AUMF] as authorizing military force against Iran.” Why the caveat? Five different senators pressed for answers, but the State Department legal adviser refused to address “hypotheticals”: “we can’t predict future events.” 

Last Wednesday, the Charles Koch Institute hosted a panel discussion, “Unauthorized? The 2001 AUMF and Iran,” featuring Steve Vladeck, Heather Brandon-Smith, and myself. No question mark necessary, we argued: no good-faith reading of the AUMF could conclude it covers war with Iran in 2019. 

I’d like to amplify a point I made there: this is a line of argument that proved too brazen even for the Bush-Cheney administration, back when the AUMF was young. That should tell us something about how spurious the Trump administration’s position is, nearly two decades later. 

Free the Eyebrow Threaders

One of the encouraging signs for the future of liberty is the spread of state-based groups engaging in constitutional litigation, often with a focus on economic liberty – protecting the right to earn an honest living and thus to pursue the American Dream. That’s why I recently joined the Mississippi Center for Public Policy (MCPP) as a nonresident senior fellow and chairman of the board of advisors to MCPP’s legal arm, the Mississippi Justice Institute (MJI).

Today, MJI filed a new federal lawsuit and joined the ongoing legal fight against occupational licensing laws. MJI’s client is Dipa Bhattarai, a Mississippi eyebrow threader. 

If you don’t know, eyebrow threading is a very safe method of hair removal that doesn’t involve the use of sharp implements, harsh chemicals, or heat. Instead, threading artists use nothing but twisted cotton thread, acting like a mini-lasso, to remove stray hair. It’s also much more precise, convenient, and affordable than waxing and tweezing. It’s an ancient technique that has been practiced for centuries in South Asian countries like Nepal, where Dipa was born.

Dipa was attending the Mississippi University for Women when she saw an opportunity to pursue her dream of starting a business. When she threaded her friends’ eyebrows as a favor, word quickly spread across campus of this superior technique. She soon had more classmates asking for her help than she could keep up with. Seeing an unserved market, Dipa opened a threading business with her brother. In less than two years, they opened a second location and hired four employees to accommodate all of their customers.

Dipa was truly living her American Dream—until an inspector from the Mississippi State Board of Cosmetology showed up and forced her to shut down her business. Dipa did not have an esthetician’s license, you see, which is required for beauty care in Mississippi.

The problem is that obtaining an esthetician’s license requires taking 600 hours of beauty school classes — which can cost up to $12,000 — even though the classes don’t teach anything about eyebrow threading.

Fortunately, Dipa will have some persuasive authority in her corner. Our friends at the Institute for Justice won a similar case in Texas in 2015. In Patel v. Texas Department of Licensing & Regulation, the Texas Supreme Court faced a state constitutional challenge to a rule that threaders obtain esthetician licenses requiring 750 hours of irrelevant instruction.

The Texas Supreme Court adopted a new standard of review that was more stringent on regulations impinging on economic liberty than federal “rational basis” review. Notably, Justice Don Willett (now a judge on the U.S. Court of Appeals for the Fifth Circuit), joined by two other colleagues on the nine-member court, insisted in his concurrence that the law would have been struck down even under the rational-basis standard.

If you missed it, then-Judge Willett’s concurrence is worth a read. Indeed, it almost certainly propelled him onto President’s Trump’s list of potential Supreme Court nominees. Here is a sample:

This case concerns far more than whether Ashish Patel can pluck unwanted hair with a strand of thread. This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee. It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments.

I’ll be anxiously watching to see if MJI can prove Willett right: irrelevant licenses for eyebrow threaders can’t survive even rational-basis scrutiny. It’s time to free the eyebrow threaders from this hairy situation.

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