August 27, 2019 9:58AM

The Presidency Didn’t Get More Powers When Congress, to Its Discredit, Failed to Provide Relief to the Dreamers

In 2012 President Obama announced the policy known as DACA (Deferred Action for Childhood Arrivals), which provided lawful status to about 1.5 million people brought to the United States illegally as kids. In 2014, he announced a follow-up policy known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). While there was no significant challenge to DACA, a group of states challenged the legality of DAPA. Cato filed amicus briefs in their support at the district court, circuit court, and Supreme Court. Throughout the litigation, Cato maintained that it supported DAPA as a policy matter—we were joined by several law professors along the way—but the president lacked the authority to pursue this change in the law unilaterally.

After Justice Antonin Scalia died in 2016, the Supreme Court split 4-4 on Texas v. United States, leaving an injunction against DAPA in place. After President Trump was elected, he announced DAPA’s termination and, eventually, a suspension of DACA. A number of plaintiffs, individual and institutional, argued that ending DACA was unlawful. In other words, the administration was required to continue enforcing DACA even if it thought it was unconstitutional (let alone if it simply wanted to reverse a policy determination). Several lower courts blocked the president from winding down DACA, holding that the executive branch failed to justify its actions. The Supreme Court has granted review to determine whether the rescission of DACA was lawful.

Having sat out the lower-court litigation, Cato has gotten back involved, with an amicus brief joined by Prof. Jeremy Rabkin and co-authored by Prof. Josh Blackman (also a Cato adjunct scholar). Once again we support DACA as a policy matter—and say so explicitly on the front cover—but, as with DAPA, the president can’t change the laws unilaterally. The appealed rulings are wrong because DACA goes beyond executive power under the Immigration and Naturalization Act (INA). But even if the Court declines to reach that holding, then the INA itself violates the nondelegation doctrine as applied here.

First, two general INA provisions can’t bear the weight of this foundational transformation of immigration policy, while DACA can’t be supported by any “implicit” congressional acquiescence either. Moreover, it shouldn’t matter if Congress has stood by idly when previous presidents exercised materially different deferred-action policies. These arguments are sufficient to confirm the attorney general’s conclusion that DACA is unlawful. But even if the Court disagrees—or declines to reach that issue—the executive branch still provided adequate grounds to justify rescission.

That is, second, the attorney general reasonably determined that DACA is inconsistent with the president’s duty of faithful execution. Admittedly, his letter justifying the rescission is not a model of clarity. But it need not be. This executive-branch communication provides, at a minimum, a reasonable constitutional objection to justify DACA rescission. Specifically, it invokes the “major questions” doctrine, which is used “in service of the constitutional rule” that Congress cannot delegate legislative power to the executive branch, as Justice Neil Gorsuch described in his dissent in Gundy v. United States this past June. Here, the Court should accept the executive’s determination of how to avoid a nondelegation problem: by winding down a discretionary policy.

Cato scholars support comprehensive immigration reform, of which a DACA-type policy is only one part. But we also have an interest in preserving the separation of powers that maintains the rule of law at the heart of the Constitution’s protections for individual liberty.

No president can unilaterally rewrite laws—in conflict with the laws passed by Congress and in ways that go beyond constitutionally authorized executive power. Nor does the president acquire more powers when Congress refuses to act, no matter how shameful the congressional inaction is. Such unlawful executive actions both set back prospects for long-term reform and, more importantly for a lawsuit, weaken the rule of law.

The separation of powers prevents the president from expanding his own authority. Those same dynamics ensure that a subsequent president can reverse his predecessor’s unlawful actions that self-aggrandize executive power. Reversing the lower-court rulings in Department of Homeland Security v. Regents of the University of California, which argument the Supreme Court will hear November 12, would restore the immigration debate to the political process—exactly where it belongs.

August 26, 2019 9:10PM

Shaking Down Drug Makers Won’t Stop IV Drug Users

On August 26 Oklahoma State Judge Thad Balkman ruled that Johnson & Johnson must pay $572 million to the state of Oklahoma for contributing to the local opioid addiction crisis. Johnson & Johnson sold two opioids: a fentanyl skin patch with the brand name Duragesic, and Nucynta,a synthetic opioid similar to tramadol but stronger.

Nucynta is not as addictive as most other synthetic and semi-synthetic opioids and has been shown to have low levels of abuse in post-marketing studies. Fentanyl skin patches are very difficult and inconvenient to convert for non-medical use. The Drug Enforcement Administration claims that nearly all the fentanyl seized is so-called "illicit fentanyl," manufactured mostly in powdered form in clandestine labs in Asia and Mexico, and then smuggled in to the U.S., sometimes via the Postal Service.

Johnson & Johnson was also charged with contributing to the overdose crisis because it owns two subsidiaries that make the active ingredients and narcotic raw materials used by other opioid manufacturers.

Two other opioid manufacturers, Purdue Pharma and Teva Pharmaceuticals, settled with the state, but Johnson & Johnson decided to take the case to trial. Their attorneys say the company plans to appeal the decision.

This is nothing more than a shakedown. As I have written here and here, the government’s own data show no correlation between prescription volume and the non-medical use of opioids or opioid use disorder. In fact, as prescription volume has come down, overdoses have gone up. That’s because as it has become more difficult and expensive to divert prescription pain pills to the underground market for non-medical use, non-medical users have migrated to heroin and fentanyl that the efficient black market is supplying in abundance.

Policymakers and politicians refuse to accept the fact that it is the current policy—drug prohibition—that is the cause of the opioid overdose crisis. Rather than taking a hard look at the dismal failure of America’s longest war, the war on drugs, they just double down on what clearly isn’t working, and seek scapegoats for the death and destruction the war continues to bring.

Oklahoma has extracted some tribute from Purdue Pharma and Teva Pharmaceuticals and, pending appeal, hopes to extract even more from Johnson & Johnson. If enough jurisdictions are successful in getting their piece of the action, we might see drug makers pull out of the pain reliever business altogether. That will not be good for millions of pain sufferers.

While state and municipal coffers may get some quick cash infusions, and some political careers may get a needed boost, this shakedown will not get one IV drug user to pull the needle out of their arm.

August 26, 2019 3:27PM

An Opportunity for Trump to Lead on Jones Act Reform

President Donald Trump and U.K. Prime Minister Boris Johnson met on the sidelines of the G7 summit this weekend, and among the issues discussed was a possible U.S.-U.K. free trade agreement. In public remarks Johnson made clear his desire that such a deal include cabotage privileges for U.K.-flagged ships:

PRESIDENT TRUMP:  We’re having very good trade talks between the UK and ourselves.  We’re going to do a very big trade deal — bigger than we’ve ever had with the UK.

And now, they won’t have it.  At some point, they won’t have the obstacle of — they won’t have the anchor around their ankle, because that’s what they had.  So, we’re going to have some very good trade talks and big numbers.

PRIME MINISTER JOHNSON:  Talking of the anchor — talking of the anchor, Donald, what we want is for our ships to be able to take freight, say, from New York to Boston, which at the moment they can’t do.  So, we want cabotage.  How about that?

PRESIDENT TRUMP:  Many things — many things we’re talking about.

PRIME MINISTER JOHNSON:  That would be a good thing.

Preventing British ships from transporting goods between two U.S. ports is the Jones Act. Passed in 1920, the law restricts domestic waterborne transport to vessels meeting four conditions: they must be U.S.-built, U.S.-flagged, at least 75 percent U.S.-owned, and at least 75 percent U.S.-crewed.

Given Johnson's comments, it seems likely that British trade negotiators will seek an exemption from this law for U.K.-flagged ships. If granted, their U.S. counterparts will surely demand the removal of various trade barriers to the $2.6 trillion U.K. economy. For Americans this would be an economic twofer, providing them access to a wider range of transport options as well as expanded export opportunities.

Unfortunately, history does not augur in favor of such an outcome. When presented with demands for Jones Act relief U.S. trade negotiators have invariably refused to cede even an inch of ground—an intransigence which reflects the power of the lobbyists who back the law. Indeed, during bilateral trade negotiations with Canada in the 1980s the Jones Act lobby was able to persuade more than half the members of the Senate and House to sign resolutions declaring the Jones Act off the table.

But there was a price to be paid. Not only were Americans denied the ability to use Canadian vessels for domestic transport but—as a former Canadian diplomat points out—the Jones Act was used as a means to deflect from areas where Canadians were loath to part with their own protectionist policies:


Americans are still paying the price for Jones Act protectionism. Continued U.S. obstinacy over the law in trade negotiations is undoubtedly met with corresponding moves from its negotiating partners. That’s how the game is played.

During talks that eventually resulted in the U.S.-South Korea free trade agreement, for example, South Korea—home to one of the world’s largest shipbuilding industries—no doubt raised the issue of the Jones Act’s U.S.-build requirement. U.S. negotiators did not accommodate them, and it’s a safe assumption that barriers to the South Korean economy which otherwise could have been removed were left in place (rice, which was specifically excluded from the deal by South Korea, seems one strong possibility).   

This is just another one of the myriad ways in which the Jones Act harms the United States. These harms include: higher transportation costsincreased congestion and highway maintenance costs; more pollution; the inability of Americans to buy U.S. products; and increased barriers to U.S. exports from our trading partners. The tally from these various costs is surely dizzying.

Boris Johnson has done President Trump a favor. With the Jones Act now on the negotiating table, an opportunity has been presented to expand economic freedom at home and increase export opportunities for U.S. businesses abroad. It's one that Trump should seize.

August 26, 2019 3:09PM

Hemp Bill Leaves Texas Prosecutors in the Smoke

By Jeffrey Miron and Erin Partin

News that Texas effectively decriminalized marijuana through poorly written hemp-farming legislation has upset state lawmakers and confused law enforcement officials and prosecutors.

The legislation in question, H.B. 1325, amended the state agricultural code to permit production, sale, and possession of hemp and CBD products containing a THC concentration of 0.3 percent or less. What lawmakers missed was the inability of state crime labs to determine THC concentration. Shortly after the act was signed by the governor, the Texas District and County Attorneys Association advised their members it might be necessary to wait until the state acquires equipment to perform the appropriate tests before pursuing legal action against marijuana defendants. In addition, the Texas Department of Public Safety informed police that, “effective immediately, personnel will cite and release for any misdemeanor amount of marijuana.”

In 2017, Texas made 62,057 arrests related to marijuana possession, accounting for 44 percent of all drug-related arrests and 8 percent of total arrests. Since 2010, even as total arrests have declined (from 1.1 million in 2010 to 0.8 million in 2017) the share of arrests attributable to marijuana violations grew from 6.8 percent to 8.2 percent.

But if the directives issued by the TDCAA and TDPS become the new standard, Texas could see a huge decline in arrests and prosecutions. This will generate budgetary savings and facilitate re-allocation of law enforcement and judicial resources to more pressing issues.

Texas may, of course, repeal HB 1325; or worse, spend taxpayer money on the necessary testing equipment. That would be a shame. Even though this de facto decriminalization was an accident, it was a good one.

August 26, 2019 2:11PM

How Not to Win an Argument About First Amendment Law

"If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment," argues Los Angeles litigator Ken White in an Atlantic essay. "Those tired tropes are barriers to serious discussions about free speech." Among verbal gestures that help very little or not at all when you're trying to establish whether particular speech is protected under current First Amendment law:

* “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful]

* “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that's no longer good law] 

* “Incitement and threats are not free speech.” [true, but regularly misapplied to speech that does not meet the law's narrow definitions of these terms]

* “Fighting words are not free speech.” [same, even assuming that Chaplinsky v. New Hampshire (1942) is still good law]

* “Hate speech is not free speech.” [no, it mostly is]

* “Stochastic terrorism is not free speech.” [same]

* “We must balance free speech with [social good].” / “There is a line between free speech and [social evil].”

* “They do it in Europe!”

* “We talked to a professor and a litigator who said this is not protected speech.”

* “This speech may be protected right now, but the law is always changing.”

Watch and (if you're like me) cheer as Ken dispatches them all.


August 25, 2019 3:30PM

FamilyTreeDNA, Government Overreach, and Unethical Nudges

A disturbing story about FamilyTreeDNA highlights issues about consumer privacy, government collaboration, and poor stewardship by a private company. Digging deeper, the story also highlights how behavioral economics can go awry, through self-serving choices by a moralistic CEO that violate basic ethical principles of choice architecture design. Bad nudges is an issue I have highlighted before in the context of Kentucky Medicaid plan choice and state-run auto-IRAs.

The short version: FamilyTreeDNA’s database contains more than 1.5 million customers, and the FBI approached company president Bennett Greenspan in late 2017 and early 2018 to access those records in hopes of finding genetic links for some unsolved crimes. As the Wall Street Journal notes:

He didn’t tell the FBI attorney to come back with a court order. He didn’t stop to ponder the moral quandaries. He said yes on the spot. “I have been a CEO for a long time,” said Mr. Greenspan, 67 years old, who founded the Houston-based company in 1999. “I have made decisions on my own for a long time. In this case, it was easy. We were talking about horrendous crimes. So I made the decision.”

Any libertarian would certainly agree that consumers and companies should be free to come to any agreement they want on sacrificing personal privacy for other product characteristics (including lower prices). Even with an open-ended user agreement, it is hard to fathom that even the most imaginative users from 15 years ago would have envisioned the sort of law enforcement overreach that we see today. If informed, some subset of customers would likely support FamilyTreeDNA’s collaboration with the FBI. The user agreement did not require the company to inform customers that the FBI was searching their records, and the company did not inform customers until after Buzzfeed revealed the collaboration in January 2019.

Although the CEO appears to be an enthusiastic participant in the FBI’s dragnet, this may be the exception, rather than the rule. Other DNA testing companies – such as 23andMe, Ancestry, and MyHeritage – do not collaborate with law enforcement unless legally required to do so. One must wonder how much extra legal costs are borne by private companies from law enforcement overreach like this, and how much it would cost a company to vigorously fight back against the fishing expeditions? Surely, the cost of law enforcement overreach is passed on to customers who pay more in submission fees, in order to have their privacy invaded.

It is important to put the company’s subsequent response to the fallout into a behavioral economic lens.

In March (2019), FamilyTreeDNA said it figured out a way to allow customers to opt out of law-enforcement matching but still see if they matched with regular customers. … (Mr. Greenspan) said less than 2% of customers have requested opting out of law-enforcement searches.

In his pioneering work, Prof. Cass Sunstein lays out ethical considerations for choice architecture. He argues that the objective of nudging is to “influence choices in a way that will make the choosers better off, as judged by themselves.” In this context, when confronted with obvious outrage and bad publicity, FamilyTreeDNA had important decisions to make. Sunstein’s “as judged by themselves” principle would suggest the opposite choice architecture: the company should have set the default as automatic opt-out of law enforcement matching, and allowed users to opt-in to law enforcement matching if they so decided. Many of the 1.5 million customers are likely infrequent, inactive users of the website, and many were likely unaware of the FBI collaboration, even after the news broke. They would be appalled by the collaboration. Mr. Greenspan’s opt-out figure of 2% strikes me as a very large response, given that FamilyTreeDNA has customers going back 20 years, and many likely ignore emails and news stories about this scandal.

The criticism of this company’s choice architecture – and feature stories in prominent newspapers – of course would not exist without unabated government overreach. From a handful of inquiries in early 2018, there are now 50 law-enforcement agencies requesting matching from FamilyTreeDNA. Buyer beware.

August 23, 2019 5:21PM

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.