We record our first inter-continental episode, as Will reports in from a visit to Tel Aviv. We then dive in to two of this month's opinions: Haaland v. Brackeen, which rejects a series of challenges to the Indian Child Welfare Act, and United States v. Hansen, which upholds a federal immigration law against a free speech overbreadth challenge.
We record our first inter-continental episode, as Will reports in from a visit to Tel Aviv. We then dive in to two of this month's opinions: Haaland v. Brackeen, which rejects a series of challenges to the Indian Child Welfare Act, and United States v. Hansen, which upholds a federal immigration law against a free speech overbreadth challenge.
[Divided Argument theme]
Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, this is the first transcontinental recording of Divided Argument. Where are you right now?
Will: I'm in Israel. I'm in Tel Aviv right now. So, we're recording across many time zones and a lot of miles.
Dan: What time is it there? It's about 2 o'clock in the Central Standard time zone where I am.
Will: It's about 10 o'clock. Hopefully most people in this apartment I'm staying in are asleep, especially my children, who otherwise would not be letting me record a podcast about the Supreme Court at this point.
Dan: Or really about anything probably.
Will: Probably not about anything. One time, Judith and I appeared on the Vladeck's parenting podcast, and they understood, or Herschel at least sort of understood and endorsed that. I don't think he knows that podcast--
Dan: Consistent with that sort of part of the brand there to have the children involved.
Will: He was nominally asleep, but close enough.
Dan: As is often the case.
Will: I'm not here for any work purposes, and I've been trying very hard not to work other than to do this podcast recording, which has not escaped our listeners who have not been listening to the podcast. But one interesting thing I got to do while I was here is there have been these massive protests of a proposed massive reform of the Israeli judicial system that I decided to go check out while I was here. And that was really something else.
Dan: I assume you did not take up arms one way or the other.
Will: I was unarmed, not even have a flag or a sign. In fact, one of the people I'm staying with here is a journalist who cannot attend protests in an official capacity. So, we were there purely in an observational capacity. I mean, it is just very interesting. The Israeli judiciary is, by American standards, it's a quite activist one in terms of fundamental approach to constitutional law, the kinds of things they're willing to do, lack of a lot of justiciability and political question type things that we're used to, etc. And the proposed reforms are to make the court more accountable and more democratic in various ways. And so, it's very interesting watching that happen, sort of having gone through the court reform conversations that you and I have been part of and talked about here, because the politics are reversed. So here, it's the conservatives who want to engage in democratic court reform so they can impose various religious measures they think the court wouldn't let them oppose. And so, it's a different set of people who are protesting in favor of judicial independence. So, that's interesting watching everything scrambled.
And the thing I was most struck by is that the chant of the-- I don't know, it's maybe the quarter of the population of Tel Aviv that goes to these protests, like once a week as Shabbat ends. Tons of people with Israeli flags and American folksongs, which is a weird mashup. But the chant is "demokratia," democracy as the pro judicial independence chant. Like, we shouldn't make the court more comfortable with politics because of democracy, which is not necessarily wrong, but is confusing.
Dan: It requires more steps than the argument, I think.
Will: Yeah, I mean, I think this turns out to be a basic point of political philosophy, that the definition of democracy is deeply contested, like to what extent is democracy just majority rule? And you have to use other words for other things. Or, to what extent is democracy some more complicated set of institutions that capture something other than bare temporary majorities? In which case you might think that the court could provide something like that.
Dan: Yeah, but you could imagine a world where a country is trying to make their judiciary more politically accountable, but with the ultimate goal of disempowering the democracy. I'm not saying that's happening one way or the other. I'm saying that there is a set of circumstances under which that might make sense.
Will: Exactly. This is even-- one of the topics debated here is to what extent would the majority then eliminate voting rights for a set of the population? But even apart from that, to what extent would eliminating civil rights, but not voting rights be undemocratic, even if not by majority rule? I made this basic comment on Twitter and got tons of people complaining in both directions with various assumptions about what I must think about the Israeli judicial reforms. And I really feel it's not my place to judge them. But I do think, man, John Roberts would love to be able to have some of whatever the Israeli Supreme Court has. Some ability to when people come after the court and attack the institutionalism of the court, to mobilize hundreds of thousands of people in the street chanting "Democracy, get your hands off my Supreme Court." I don't understand what the US Supreme Court would have to do to be able to make that happen, but--
Dan: Is it possible they might have to make better decisions?
Will: Or worse decisions?
Dan: One way or the other. Okay, well, our listeners certainly appreciate you being willing to take time away from your international vacation to do this. Bad news is I am shortly leaving on a family vacation myself, during which I'm going to be in very close living quarters with a number of children, and it seems unlikely I'm going to be able to record. So, we might be missing a lot of what's going on in terms of the hot period with the court. But I certainly would be imagining sort of later in July coming back and doing a lot of deeper dive retrospectives on some of the big decisions after the dust is settled. So hopefully, that would be appealing to some folks, even if we cannot give you the breaking coverage to which you feel you are entitled, listeners, the listeners who are complaining at us on Twitter for being inconsiderate of them and scheduling our family vacations.
Will: People act like this is our job or something.
Dan: Also, they act like they're paying for a product. We do this for free. You don't even have to listen to ads. The only thing you have to listen to is us whining about Apple Podcast Store reviews. That's the closest thing we have to an ad.
Will: Sometimes, you have to listen to long discussions of the Star Wars Extended Universe.
Dan: Yeah. You don't though. There's a fast forward button for a reason.
Will: Yeah, you don't know how much to fast forward, if you think, like, five minutes, that must be enough, and you're like, "Oh, my God, still?"
Dan: Yeah.
Will: I think when were originally talking with this podcast, I think one of our ideas was mostly we would record in June and then the rest of the year, we'd sort of record occasionally, but not very much. And I think we may be doing the opposite. It's like, "Let's record a podcast that does not operate in June."
Dan: Yeah. I mean, that is very unpredictable though. You couldn't have predicted that. Nobody could have predicted that.
Will: I agree.
Dan: Okay, so bear with us, sorry, not sorry, and let's go ahead and do what we're going to do. Okay. So good news is Supreme Court has released a ton of interesting decisions in the last couple of weeks while we have been in hibernation mode. Bad news is we're not going to talk about a lot of them because we are limited in our bandwidth and time, and we have chosen to-- we put these into a spinning wheel and spun it and ended up with two decisions that we're going to talk about that may or may not be ones that you want us to talk about. What was the result of that, Will?
Will: I think we're going to talk about Haaland v. Brackeen, the Indian Child Welfare Act case is one.
Dan: And United States v. Hansen, really interesting case at the intersection of criminal mens rea doctrine and the First Amendment overbreadth doctrine. Do we think that's the most surprising decision of the court of the term so far? That one, you have a cobbled together majority with the Chief Justice and Justice Kavanaugh from the right, and then the three liberal justices and a 5-4 decision that seems to pretty faithfully adhere to existing precedent about the Voting Rights Act and end up requiring the State of Alabama to change its districting plan in order to have a second majority minority district. Did you see this one coming out that way?
Will: No, I definitely confidently predicted they would not do this.
Dan: Yeah. And it totally was inconsistent with what the majority of the court had done on the shadow docket earlier in the year, late last year.
Will: Well, it's funny. Earlier in the year, they granted a stay of the decision below. And I think there was a concurring opinion maybe by Justice Kavanaugh, saying, "Now, I stress this is not a decision on the merits. We may well decide to uphold this, but the equities say we should give it a stay." And at the time, we all rolled our eyes and we're like, "Oh, come on, that's BS." Ironically, the biggest surprise is that that was true. They hadn't prejudged the merits, and indeed they decided to uphold it after all. Now, that does mean we have to go back, and I think Steve Vladeck has already been complaining that this means those stays were especially indefensible and maybe responsible for Republican control of the House and so on. I don't have a strong view about the equity question yet, but I think that is part of--
Dan: Do we think that he did that just to prove the haters wrong and say, "Actually, when I say we haven't decided this, I really mean it"?
Will: No.
Dan: Yeah, you're going to say no. That was just a fun question.
Will: I mean, could it be a factor on the margins, maybe. Part of what I find interesting about this, and I think people said this already, is that as a young lawyer, John Roberts was in the White House counsel's office, sort of a big part of the fights about the revisions to Section 2 of the Voting Rights Act that are at issue in this case and wanted them to say something different from what he now concludes they mean. If you had a very straightforward political, biographical view of these things, you would think, "Surely now John Roberts is going to win the war he began as a young Reagan conservative warrior." And instead, it's more like, "Yep, he acknowledges there was a big fight about that. He lost the lost the legislative fight at the time, and now that's the law and he's not going to return it."
Dan: Yeah. And it's also surprising because I think that terms of his jurisprudence, a lot of people thought he had been pretty hostile to the Voting Rights Act more generally. He had not joined the shadow docket order. So, there was some reason, I think, he was not going to be with the others. But yeah, interesting one. I think we should step back and talk about it. That's one where I had not thought as deeply about that area of law. And it's one where I was kind of surprised-- maybe not surprised, but it was interesting. Justice Thomas has, I think, a fairly strong dissent. It's not perfect, but his position, I think, is clearer and easier to understand than what the majority is doing. I don’t know if you had that reaction.
Will: I mean I almost always have a reaction to Justice Thomas' dissents, but I maybe have that reaction less to this Justice Thomas' dissent than I do to most Justice Thomas' dissents.
Dan: Oh, interesting.
Will: But certainly, that was my general view of the case coming in. And there's a Frank Easterbrook opinion from the Seventh Circuit several years ago taking the position that lost the race neutral approach to Section 2 of the Voting Rights Act that I only learned about when my then colleague, Nick Stephanopoulos, wrote a paper that was basically like, "What would happen if Frank Easterbrook's vision of the Voting Rights Act came true? Here are all the terrible things that would happen," instead of going through empirically. And then, that became a lot of those articles are cited heavily in the case. And when I read that opinion, as with many Frank Easterbrook opinions, I was like, "Well, that makes a ton of sense." But then as you start to think about it, some of the problems are hidden by his powerful writing and strong logic.
Dan: Okay, no time to say anything else about that except that Justice Kavanaugh seems to leave open the possibility that Section 2 of the Voting Rights Act could become unconstitutional over time, which is interesting.
Will: [crosstalk] -Section 5 did.
Dan: And Affirmative Action will later this week, probably, right?
Will: I think so. So, it'll be interesting. Maybe we'll talk about the Affirmative Action case and Allen v. Milligan together at some point.
Dan: At some distant point. Another one I'm looking forward to digging a little deeper into, which is a criminal fed courts-y one but one that was pretty controversial was Jones v. Hendrix, which is basically about when can someone who was convicted under a statute, and the statute is much later found to not criminalize the conduct that the person engaged in, can they go to court and say, "Okay, now let me out"? That was a very divisive case. It's been talked about a lot. So, stay tuned for that one eventually.
Will: That one's gotten a little bit of our-- also in our wheelhouse, some of the lawyering ethics, beyond the pale type questions because the prevailing party in the case was a court-appointed amicus, former Supreme Court clerk and--
Dan: Taking the position that people who are convicted of non-crimes should have to stay in prison for many years.
Will: Yeah. I mean, and the court agreeing with that, and that raised questions about, is it okay that somebody argued that and so on. Also, this related discourse about Supreme Court clinics, because I think the party that represented the petitioner was a Supreme Court clinic, and that position had been the law in many circuits, and now lost. So, the Supreme Court clinic has resulted in making bad law nationwide that previously was only in a few circuits. I imagine this was a critique leveled about a Supreme Court clinic, I don't know, the year I clerked, and I think there's a Jeff Fisher article responding to these critiques. I feel this is a topic people have been around the block on several times. But that's also back as part of the discourse of the case.
Dan: Okay. We'll do more about that. And then finally, let's talk about another case that we're not going to talk about, which is Samia v. United States, which is about the Confrontation Clause, and about something called the Bruton Rule, which is a rule that says when the government is trying two defendants together, defendants aren't testifying and they want to introduce a confession of one defendant that implicates the other, when is that permissible? And there's sort of a rule that says you actually can't do that even if you tell the jury that the confession is only admissible with respect to the defendant who made the confession because it would pose this prejudice because the other defendant would not be able to confront and cross-examine the person making the confession.
Will: And you can't do that because of the privilege against self-information.
Dan: You can't make him do that. When you have a joint trial, in particular, these two constitutional provisions run up against each other. And so, the solution in the doctrine had been to say that, "Well, you just can't admit it." And so, the way that-- you either just wouldn't bring the confession in at all, in terms of timing, there's a way you could do it if you do the trial seriatim but it made it very hard to use these kinds of confessions when the confessor was going to assert his privilege. And in this case, the court approves a procedure for doing it by slightly modifying the substance of the confession so as to not directly implicate the other defendant, arguably really, really cuts back on this Bruton Rule. So, we'll have more to say about that. But again, that will have to wait.
Will: Yeah.
Dan: Okay, let's do it. I think let's talk about Haaland. You called it Hal-land. There's two A's in there. So, I don't know if you should say, like, Haaland v. Brackeen, the Indian Child Welfare Act case.
Will: Yeah. This is a case that's now from a little more than a week and a half ago and might have been another one of the more surprising cases.
Dan: You weren't surprised though. I texted you about this and you were like, "Oh, no. I predicted this."
Will: Yes, but the discourse was all about how the Supreme Court was going to destroy Indian law and Indian families. The Indian Child Welfare Act is a statute enacted to stop states from breaking up Indian tribes and Indian families by when there is a child who is defined under the statute as an Indian, which is controversial, giving various preferences overriding various state family law rules that give various preferences to members of the Indian family and even to other Indian tribe members who are not members of the family. So, it's sort of like a federal regulation of family law.
Dan: Yeah. Even in some circumstances where the biological parents support an adoption of the child by non-Indians, the tribe can come in and object to that.
Will: Yeah. My mom was a family law scholar and taught family law, so I always followed it a little bit. And I think one of the basic lessons of family law is it's full of astonishingly hard fact patterns of various kinds. Really hard law. It's also the statute went to the Supreme Court almost exactly 10 years ago, I think, in a case called Adoptive Couple v. Baby Girl where people also thought the Supreme Court might in some way strike down the Indian Child Welfare Act, and it ended up narrowly construing one of the sections of the statute and avoiding getting into a bunch of the constitutional questions. But I think the fervent of, is the court going to do something with this statute for the past decade, in part goes back to that case.
Dan: Yeah. Although it still could, right?
Will: Yes.
Dan: Later on. There's still a door open as we'll talk about.
Will: Yes, exactly. I think in terms of substance, there are basically three issues or two and a half issues in this case, or were. One is what I think we just call the Article 1 issue. Does Congress have the power to regulate Indian Child Welfare? Or is this like Lopez, something that's just kind of outside of Congress' Article 1 powers? Relatedly, does this violate commandeering? Do the specific duties the statute imposes on state courts, especially somehow commandeer the states to execute a federal program which is contrary to Printz and several other cases? And then, apart from those two or one and a half federalism questions, there's an equal protection question. Does the fact that the way the statute treats people, treats children on the basis of their race in some way?
Dan: And [crosstalk] parents.
Will: Yes. As I understand it, part of makes the statute especially controversial even compared to other statutes about Indians is that the children to whom it applies are defined not just on the basis of their tribal membership. Many of them do not have a tribal membership. So, it's just on the basis of their descendants from maybe other people who are tribal members, but child-parent, does the Indian part of the statute in some way violate the equal protection principles?
Dan: So, the court is going to resolve some of those issues and punt on others in terms of resolution. Let's go through that. So, this is majority opinion by Justice Barrett and her decision is going to conclude, this is within Congress' Article 1 powers under the Indian Commerce Clause. Am I supposed to say that?
Will: Within the Article 1 powers under something. [crosstalk]
Dan: Yeah. Other possible sources of power. Why is that?
Will: Well, partly it's because under current precedent, Congress' Article 1 power over Indian drives is very broad. Many cases have described it as plenary, although the court has never quite meant totally plenary. And here, they again emphasize that plenary doesn't really mean plenary-plenary, but a lot. And the court doesn't exactly say that those things are right. There's a separate opinion by Justice Gorsuch that says, "That's basically right, Congress does have a huge amount of power over Indian tribes." And then by Justice Thomas in dissent saying, "No, that's wrong." And the majority says something like, "Well, it might be right. And the argument that it's wrong is not very good, so we're going to stick with it." So, partial stare decisis argument, right?
Dan: Yeah. And throughout this part, I thought it was pretty interesting. Let me see if you had the same reaction that Justice Barrett's opinion here and some other places seems to really be throwing some shade at the challengers, including State of Texas, for the kind of quality of the arguments they're making.
Will: Yes.
Dan: Sort of suggesting like, "You just came in here, you didn't really try, you didn't even make an effort to reconcile what you're doing with our precedent. Or to at least offer us a better theory, you just threw some stuff out there and seemed to just be-" obviously she's not saying this, "-but basically just seemed to be assuming that you had the votes and didn't give us something useful and that's not good enough."
Will: Yes, exactly. I was struck by two things that related things going on here. So, one is there's an earlier concurring opinion, which Justice Barrett a few terms ago in a case called Fulton v. City of Philadelphia about whether to overrule Employment Division v. Smith, one of the court's controversial free exercise cases where Justice Barrett writes this concurring opinion for several Justices that says something like, "I am persuaded that Smith is probably wrong. But what are we going to do instead?" And then goes on about how it's not obvious what you do instead. And then, of course, the court doesn't overrule Smith. And I think there's a little bit of that here too, a sort of like a look before you leap theory of stare decisis. "You could potentially persuade us that our doctrine precedents are wrong, but you would have to give us some sense of what you have in mind instead."
And then, I think that's related to this exactly the lawyering critique you make which is, "You can't just show up here and assume that because you're the conservative states and we're the conservative Justices, and you want the conservative result, that it's all going to happen. You've got to give us something."
Dan: And it seemed a little sharper at points, right?
Will: Yeah. "We're frustrated or disappointed." I remember this is very much what it felt like, an oral argument. It felt like the challengers were not prepared for the level of kind of skeptical questions they were getting from the court about, "Well, which of our cases are you overturning? And what about that? And what about that?" And the challengers wanted to say, "Look, we just think this is an easy case. This should be outside of the enumerated powers, and you can worry about the rest later." It seemed clear the Justices were frustrated by that approach to this issue.
Now, is that fair? One of the comparisons I've seen going around is to Lopez, where the court, for the first time in many decades, holds something violates the regular commerce laws, the Interstate Commerce Laws, the Gun-Free School Zones Act. And it's not like there was a really clear theory about why or what. And Chief Justice Rehnquist kind of famously cobbles together this new test about economic activity that's still kind of confusing. And there, it seemed like the court was saying, "Look, this goes too far. We finally found something that goes too far. And where's the line? We'll figure that out later." So, is this like, they just wanted the court to do a Lopez and the court didn't feel like doing a Lopez?
Dan: Maybe. Yeah, I mean, maybe there was just more support to start with. I guess the fact that the court in some other cases has gone somewhere without a super clear theory doesn't necessarily disprove the criticism that the challengers should have done, given the Justices more to work with here. I don't necessarily see the inconsistency.
Will: Why did one happen one way and one happened the other? So, one possibility that's occurred to me is that at the time of Lopez, in the mid-90s, with Justice O'Connor and Justice Kennedy as the swing votes, I think the more conservative Justices may have had more of a view of just kind of like take them where you can get them. We got five votes to say something about the Commerce Clause, like, "That's great. We'll worry about the rest later." And it would have been silly to try to work out like a complete originalist theory when you didn't have Justice Kennedy or Justice O'Connor subscribing to a complete originalist theory anyway.
Whereas now, as the court starts to kind of feel like a different set of Justices are in control, they may have a different set of standards for what they need to see. And in some ways, that might occasionally make them more restrained in the sense of they don't just say like, "All right, we've got five votes, let's do it." They say, "Wait a minute. What are we doing here?"
Dan: And sometimes they will do that. But, yeah, I mean, also in the 90s, the norms, in the strategy about what a litigant would argue would be very, very different. You wouldn't write a primarily originalist brief, I guess, unless you were trying to construe some constitutional provision that had never really been fleshed out in any way. That might be where you'd do that more, but you'd make more arguments based on precedent and kind of bigger functional principles.
Will: And then, I do think this is also, just on the merits, an interesting issue where there really are interesting questions about whether the Commerce Clause means the same thing. There are sort of three Commerce Clauses, like the Constitution applies to commerce with foreign nations, with Indian tribes, and among several states. And do the narrow intuition some people might have about commerce among several states necessarily apply the same way when you're dealing with other kinds of commerce? And there's a lot of history and interesting textual arguments, interesting originalist arguments of why it might not. Which is a little weird since the word "commerce" literally appears only once in the sentence, it's sort of like, how can the same word mean something different for those things? But it might.
Dan: Yeah. Okay, so Article 1 is resolved. Just to follow up on something you said. How much daylight did you see this as leaving in terms of the ability to make an argument for challengers down the road on this specific commerce question? Do you think this resolves it or--?
Will: I think formally it leaves some daylight for somebody with a new, a better worked out theory. I'm not sure exactly what it applied to either, but I think formally it leaves some daylight. I still think practically, I wouldn't be spending a lot of energy trying to cook up those theories, thinking they were going to succeed.
Dan: Yeah. Okay, what else have we got?
Will: Well, so then there's also sort of related anti-commandeering challenge which I think is the challenge that the Fifth Circuit below had found meritorious, and which is a variation on Article 1 because anti-commandeering is also kind of a federalism principle, but it's kind of a separate free floating federalism principle. And that the court just squarely rejects and says, "The anti-commandeering principle doesn't really apply to courts, as we've said before. And there's various reasons you might have to think this is different, don't apply, this is not different." So, that was pretty straightforward.
As a point of terminological hygiene, I don't like the fact that the opinion over and over calls the anti-commandeering challenge a 10th Amendment challenge, which the court in Printz had said is not the source of the anti-commandeering doctrine. And Printz, the last anti-commandeering case like this, the court had said it's not the 10th Amendment, it's a necessary improper clause, it's the source of the anti-commandeering doctrine. And so now I don't know if that's changed or if that's just sloppy or what's going on there, but that's pretty straightforward.
Dan: Let's just explain to people what that principle is. The main way pre-law school I encountered that word was like when a cop is chasing someone on foot and then they take out their badge and order some civilian out of their car so they can commandeer the vehicle to chase the fugitive. I think it also has like a nautical sense, but it means something different in constitutional law.
Will: Well, it's kind of like that. So, in Printz, which is one of the classic anti-commandeering cases, not the first or the most recent, but written by Justice Scalia, and therefore classic, the question is, can Congress pass a federal gun control bill that requires the local sheriffs to be the ones enforcing it when they don't want to? Somebody has to run the background check, and the federal government doesn't want it to be the Postmaster General or the US Attorney or somebody at the Alcohol, Tobacco, Firearms Bureau. They want it to be the local sheriff. And the local sheriff says, "No, do your own work." And the Supreme Court says the local sheriff is allowed to say, "No, do your own work. Congress can't make the local sheriff enforce federal law." There are all sorts of weird historical and political theory questions about whether this makes sense because Congress can still do it themselves.
So, one consequence of this doctrine might be to create pressure to have a bigger federal government or a bigger federal bureaucracy, because now, rather than relying on states to enforce the law, Congress has to hire more people to be in the federal government. But there are also kind of accountability theories for why maybe that's how it should work.
Dan: Can I do a non sequitur here for one second or a semi sequitur for like two minutes?
Will: What's the semi sequitur? Go ahead.
Dan: I want your quick intuition about this. And this is the thing I've been thinking about. I actually have a friend who's a special agent at the ATF. But in Missouri, we recently passed this insane law that says local law enforcement, if anyone in local law enforcement cooperates with any federal investigation into a gun crime, they face criminal penalties, the officer does. So, if there's some shooting and that ATF is like, "Hey, can we take over this investigation?", the local police say, "Well, we can't give you anything or else we go to jail." The DOJ sued, that law has been enjoined, that order is on appeal. But without knowing anything else, what's your intuition? Is that okay?
Will: I think it's tricky. I think it actually gets at the same question that was in some litigation about state sanctuary cities, where there it's the federal law, but has a similar structure where the federal law said, "No state is allowed to punish any state employee for cooperating with the federal immigration enforcement." I think the question is who holds the anti-commandeering right? Is it the right of the individual officer or is it the right of the state, basically? Because one of the principles is the state can choose to cooperate with the law if it wants to, but who gets to choose? And I think the right answer is that the state gets to choose, that the holder of the anti-commandeering right is the state, not the individual employees. And therefore, Missouri's law ought to be okay.
Dan: Even though it's not necessarily commandeering that's an issue. It seems like maybe arguably some form it should be thought of as preempted in some way, if you're actively impeding people from aiding in a federal investigation.
Will: I realize it is sort of like a state pro-obstruction of justice statute, which does sound like a strange thing for the state to do. But if the state is allowed to say, "Look, we're not in the business of enforcing federal law. That's for you guys to do," and then if the person at the top of the state can make that decision for everybody else in the state, we as a state are not cooperating, then it seems like it's okay. But I'm sure my view is not going to win. I'm sure that law will be held unconstitutional.
Dan: Hope so, because it is nuts. Okay, but back to this. What would be the commandeering here? Various parts of this law. We're not really going to get all the different pieces of the law in place for you.
Will: A series of sort of rules about how the foster care system works, both in terms of state agencies finding various preferred placements for Indian children and then state courts maintaining various records of the custody proceedings, basically. Like there are things that the state family law apparatus has to do to comply with the statute. And the court says, like in most cases, these are not the kinds of things that count as anti-commandeering. They're rules that apply to both public and private actors alike. The record keeping things are kind of ancillary. And actually, it may make some interesting new law for anti-commandeering doctrine, in part because there are so few anti-commandeering cases that each new case seems to make some significant new law, but it's also just not that important in the scheme of things.
Dan: Yeah, but it was interesting, does that seem right that anytime there's a federal law that imposes obligations on both public and private actors, it can't be anti-commandeering, it can't be a violation of the anti-commandeering principle? Because that wouldn't have just been intuitive to me without having thought about the doctrine in many years.
Will: What seems right to me in the sense, if the paradigm case of the doctrine is like, "Here's a new law, we don't want to enforce it. You, the sheriff, have to enforce it," that's like imposing public duties on them. By contrast, maybe this amends my answer to your obstruction of justice example, if you just have a general rule like everybody is supposed to cooperate with the federal law enforcement investigation, then the fact that you don't give some special immunity from cooperation to state officials makes more sense. It's not like the same kind of commandeering.
Dan: I guess. I guess it just depends on-- I sort of thought the question would be, does the federal government have the power to order the state officials to do stuff? And if they don't, then it doesn't really matter whether they're ordering other people to do stuff or not. It could be that it's totally fine to order other people to do stuff, but you just can't give those orders to state officials because it's not your governance job.
Will: But I think part of the question is, are you ordering them to do stuff in their capacity as state officials or just in their capacity as people? So, for what it's worth, and another semi sequitur, in fact, the anti-commandeering doctrine has two branches, one about commandeering state legislatures, can you make the state legislature pass laws? And one about commandeering state enforcement officials, can you make them enforce laws? The one about commandeering state legislatures has a very strong originalist spaces and is almost surely correct. Congress cannot make the states pass legislation. The one about commandeering state officials is much weaker historically. Both Jud Campbell and Sai Prakash have good articles about all the commandeering of state officials that happened at the founding and why it was thought to be constitutional. And probably the difference was the difference between acting on the state directly versus acting on more like individuals.
Now, over time, as we litigate more and more cases against state officials as if they were the state because of ex parte Young and all this stuff about thinking about officials in their official capacity, you can see how we ended up there. But I still think the core anti-commandeering problem is about the federal government trying to regulate the state as state. And when that's happening, that's when you're suspicious. Whereas when it's a general obligation that applies to state and non-state officials alike, it doesn't raise the same problem.
Dan: All right. Well, the court seems to agree with you, and I don't have a strong intuition on the matter. I just thought it was interesting. So, those challenges fail, and then we're now left with equal protection. Is this racial discrimination? And one might have hoped we'd get some clue about maybe what's happening in the Affirmative Action cases from this decision, but such a clue is not forthcoming here. Why is that?
Will: Because of California v. Texas.
Dan: And so here, what that means is there is a standing problem, right?
Will: Indeed. So, this is the other thing that definitely came out of oral argument, and this is something that the court was much more concerned about than the parties maybe expected them to. And the standing problem is maybe not-- Well, in a way it's intuitive, maybe it's not intuitive. One often in standing we're talking about injury. Like, have the parties suffered the kind of injury that the court thinks counts and you're allowed to sue about? And here the court says, "Yes, they have. Race discrimination is an injury, so we're not concerned about that."
The problem is the other part of standing is redressability. Are you asking for something that actually fixes the thing you're suing about? And here, the person they're suing is the federal government-- or not just the federal government but it's the federal executive branch. But the federal executive branch is not engaged in the race discrimination they're complaining about because the statute imposes these preferences. And when you have a problem with a statute that is unconstitutional, you can't just sue the United States or sue the Secretary of the Interior under the theory that somehow they're responsible for the statute.
Dan: And so, the meaning that if the challengers won, what would happen? Why is it not redressable if they got some opinion from the court saying this is unconstitutional?
Will: Well, so for standing what matters is not, like what is the opinion from the court but the actual relief they would seek. So, they want like an injunction against Deb Haaland saying it was unconstitutional. But she would say, "Well, I'm not involved in this process. As the anti-commandeering challenger field, this process is playing out in a bunch of state agencies and state courts, they are allowed to decide whether this is unconstitutional or not. I'm not telling them like you've got to uphold the statute or else or anything like that." So, in a way the problem is the wrong defendant and the wrong kind of vehicle.
The reason I said this is like California v. Texas is that was the most recent failed lawsuit against the Affordable Care Act where the state of Texas sued the various federal agencies saying the Affordable Care Act is unconstitutional. And the court said, "Why do you have standing? Your problem is that the law is unconstitutional, and you want an injunction against the government. But against what? There's nothing to enjoin. The government is not enforcing the law. The parts of the law you're complaining about aren't enforceable by the government." And so, you can't just sue the government to say, "This is unconstitutional." You need to actually complain about some concrete action somebody is taking against you.
Dan: Yeah. So, if this issue were to properly get before the court, I guess it would have to come up through certiorari off of some state court judgment.
Will: I think that's the most natural place. There might be some time when the federal government really is enforcing the statute. Texas made a claim that the federal government was going to take money away from them if they didn't engage in the forms of preferences of the statute required. And the court said, it's not obvious that's true or whatever, but the most natural thing would be some state court in the states can just say, "Look, I'm not going to obey these preferences because they're unconstitutional," and then the Supreme Court grants it.
Dan: Yeah, or that they will obey them and--
Will: Sure.
Dan: Interestingly, just in terms of counting votes, this is a 7-2 decision. We have Justice Barrett joined by the Chief Justice and Justices Sotomayor, Kagan, Gorsuch, Kavanaugh and Jackson. But in terms of where people might actually be on the equal protection argument, where they're standing, lots of reason to think it wouldn't be 7-2 in favor of ICWA. So, Justice Kavanaugh has a short concurring opinion in which he says, "You know I think that equal protection issue is serious and the scenarios contemplated by the statute raise significant questions under bedrock equal protection principles in this court's precedents," and inviting future challenges.
Will: He even says, "Specifically, for example, by a prospective foster or adoptive parent or child in a case arising out of a state court foster care or adoption proceeding."
Dan: "Yeah, go find me one of those." And so, I take this as maybe not 100% tipping his hand but fairly strongly tipping his hand. How do you think the court would come down on that if and I guess when it comes up?
Will: I think this is also trickier than it seems at first. I mean the naïve cut would be of course the court will say this is unconstitutional. In Paul v. [unintelligible [00:39:58], they said you can't try to place black children with black parents or white children with white parents in the adoption proceedings. That's race discrimination and you'd think this is the same thing. On the other hand, Indian law generally operates out of the fiction that treating people on the basis of Indianness is not treating them on the basis of race. So, those precedents--
Dan: It's a political community and not necessarily just a race or exclusively a race.
Will: There are two things that complicate that in both directions. So, as I understand it which I'm partly relying on the expertise of others, ICWA really does grant preferences that are not just political community related. Like indeed, one part of ICWA even gives a preference to Indians in other tribes who want to adopt the child ahead of various non-Indians. So, it's not even just the political community unless it's like the political community of all Indians, which starts to look more race based. So, I think probably the court would say at least some parts of preferences are unconstitutional.
The wild card problem is that the Equal Protection Clause is the source of most of our law against race discrimination and the Equal Protection Clause does not apply to the federal government, which the Supreme Court a long time ago said, "Doesn't matter and that the same standard applies to both." But Justice Thomas, I think, last term said, "Oh, that's probably wrong. We need to reconsider that question." So, I'm not positive how Justice Thomas can vote in that could vote those preferences are unconstitutional given his view.
Dan: And then at that point, you have five conservative Justices left, and one of them, Justice Gorsuch, just seems completely all in on Indian rights issues, and we'll talk about his opinion momentarily. This seems to be the set of issues that he cares most about.
Will: I'm not sure if it's the set of issues he cares most about, but he sure does care about them and enjoy writing about them.
Dan: In terms of the passion that he brings to his decisions, his opinions, you don't think so?
Will: I mean, as you have noted, Dan, Justice Gorsuch brings that passion to every issue, whether it's exhaustion of Veterans' Affairs rights or whether or not you're interpreting the statute according to its tax.
Dan: Uh, I don't think that's right. I don't think every one of his decisions is as heated as the ones he writes.
Will: Or [unintelligible 00:42:19] about the-- [crosstalk]
Dan: Yeah. I would say top two is crim pro, kind of core crim pro stuff. But I think this is number one, as partially evidenced here by the length and fieriness of his concurring opinion here. He has a 38-page concurring opinion in this case where he kind of lays out his own view about the proper scope of Congress' power over Indian Affairs. But one thing I think he does, which is I thought is quite important and I thought implicitly or maybe even more explicitly a criticism of the majority is the majority in terms of its background section provides almost no explanation of why the statute exists. Basically, if you look at Justice Barrett's opinion, once you get to Roman numeral one describing the Indian Child Welfare Act, there is one paragraph that says Congress thought this was a problem, Indian children were being removed and placed with non-Indian parents and doesn't really get into it.
And as Justice Gorsuch notes, it's a lot worse than that. There's a lot more going on here. The history is extremely troubling. There was this concerted effort by many states over many, many years to kind of functionally destroy tribes by taking children away and sending them to boarding schools and any number of other things to try to assimilate the children into white society, and basically decimate the tribes. And I thought that the majority opinion could have done a little bit better on that and it came off as a little unsympathetic.
Will: Yeah. But again, you wonder, would Justice Gorsuch bring that same energy to something like Shelby County? Justice Gorsuch is writing about atrocities committed against Indian families in the late 19th century as relevant to the constitutionality of a statute adapted 70 years later and now applied in states 130 years later.
Dan: I don't think that's right. I think that he's talking about stuff that happened in the mid-20th century. There's a long history, but he's giving you the full history. He's not making a constitutional argument. He's giving you the necessary background to understand why this is not just some random thing Congress did as a handout.
Will: True. I do think he starts with the Carlisle Indian Industrial School in 1879, and a lot of his stark examples come from a BIA report written 1910. Now, it's true. It's true that--
Dan: But it's a continuous story that keeps going into the 50s, 60s, 70s as he notes.
Will: Well, I guess that's my point, is just the extent to which it really is a continuous story is a lot of the Shelby County question where one side will say, "Look at all these terrible things that happened in the south to people who wanted to vote in 1910 where the Ku Klux Klan murdered them all." And that's a continuous story with voter ID laws passed in South Carolina 100 years later. And the Supreme Court will say, "That story is not quite so continuous, and there's a big gap between them," and so on.
Dan: Doesn't the history at least provide some information into why Congress passed the law? It's not sort of some random sequence of events, right?
Will: I mean, it's definitely not random. I agree with that.
Dan: Congress was operating with this historical background and aware of this historical background.
Will: I do not know whether Congress is aware of the historical background. I mean, they might have been, but they also might have been employing racial stereotypes about sort of where children of certain races belong along the lines of the racial stereotypes that adoption agencies would use that were struck down by the Supreme Court around this time.
Dan: I guess that's not really consistent with my understanding of what kind of movement that led to the statute involved, that this isn't just kind of random stuff that he's throwing out there, that there was this backdrop and that there was a really sustained effort to stop these practices that were explicitly targeting tribes and actively trying to dismantle them. But I can let that one go for now.
Will: Okay. To be clear, I'm not saying it's random. I just think every time there's a new arc-- I mean, there have been five or six major arcs in Indian law that each one is transformed and turned its back in the previous era. And I think in each of those, the story for how much of that is rejection of the past and how much of that is just a new set of politics is just complicated.
Dan: Yes, but he notes that in the 60s and 70s, 25% to 30% of all Indian children are being removed from their families. That's a big deal.
Will: Yes. I'm just saying the majority might have had good reason not to want to try to get into that narrative and decide which is the most important part of that story.
Dan: That's right. I'm not saying they needed to write a fact section that was as lengthy as this, but I think just another couple of paragraphs, maybe just about the fact that there was some serious problem here that was Congress trying to address rather than just doing something having some kind of vague concern. Anyways, I would have written it differently. Just that part. But he's going to go on. He's going to set that background up and he's going to go on for quite some time in terms of laying out his theory of the scope of Congress' power here. And do you have kind of a good grasp of that?
Will: I think so. I mean it's very, very broad.
Dan: Yeah.
Will: It includes the Indian Commerce Clause but also the treaty power and also these kind of broader structural inferences about the invalidity of state actions put together.
Dan: Yeah. So, can't totally isolate everything. But what does that add up to? A lot of power, right?
Will: Yes. One of the things that-- and also declare work clause and the power over property. There is this point that all the opinions of note here that for the first hundred years, a huge source of Congress' power in these areas was done by treaties. We have many more treaties with Indian tribes than with foreign countries. And then in 1871, Congress passed a statute saying, "We aren't going to use treaties anymore," so we stopped using treaties which is like a weird little separation of powers, is that even a thing Congress can do? That was one of the many changes and pivots in how we treated tribes sort of legally. But regardless, the original picture is clearly one of very broad federal power where states were not trusted to deal fairly or squarely with tribes.
Dan: This is another opinion where he writes key parts of it kind of in second person, "To the reader, here's how you should understand that." Okay, so basically says, "Figuring all this out requires a full view of the Indian law bargain struck in our Constitution. Under the terms of that bargain, Indian tribes remain independent sovereigns with the exclusive power to manage their internal matters. As a corollary of that sovereignty, states have virtually no role to play when it comes to Indian affairs. To preserve this equilibrium between tribes and states, the Constitution vests in the federal government a set of potent but limited and enumerated powers. In particular, the Indian Commerce Clause gives congress a robust but not plenary power to regulate the ways in which non-Indians may interact with Indians. This is all much more straightforward than it sounds, take each piece of the puzzle in turn. Then, with the full constitutional picture assembled, return to ICWA's provisions. And by then, you will have all you need to see why the court upholds the law." I have all I needed to understand why Justice Gorsuch thought that.
Will: I think I said this before, but I really like these Justice Gorsuch opinions, but I'd kind of like somebody to try to put them all together and help me fully understand what Justice Gorsuch's overall picture of Indian law looks like. And actually, here's another opinion in a case we're not talking about involving the Navajo Nation's fight for water rights in Arizona, a 5-4 case with another unusually passionate Justice Gorsuch's dissent that brings in some more of these principles. But I feel I still don't totally understand how they all fit together here in his view.
He is relying on the work of several legal scholars whose work I really respect. One is Greg Ablavsky, the legal historian at Stanford, who has a piece called Beyond the Indian Commerce Clause that makes the core point that a lot of the original sort of founding era debates about Indian power were not about the Commerce Clause, but about things like the law of nations and other sort of important legal backdrops. And Justice Gorsuch seems to be picking up on that.
There's a recent article by Chris Green trying to explain textually and historically why the Commerce Clause is different for states than it is for tribes and foreign nations. Justice Gorsuch picks up on here, saying the difference is that states are places and tribes are people. And so, you can say you are vacationing in Colorado but not in Navajo. And thus, any interaction with a member of a tribe is commerce with the Indian tribes. But any interaction with a Coloradan is not necessarily commerce with the states because the state is the place, but the tribes are the people. Those are interesting points. But I feel there's a more holistic view here. I don't know. If Justice Gorsuch were taking my advice, his next book, would be sort of like American Indians according to Gorsuch.
Dan: I don't know if he would get the same advance for that one as he got for the previous book.
Will: He might. I mean, it wouldn't be all law. It could be his--
Dan: Yeah, it's interesting. And it's going to be another one of these things I remember people trying to speculate about why does Justice Kennedy write these pro-gay rights decisions inconsistent with what you might have expected from a more conservative judge of his generation. And I think there's going to be continuing to be a lot of speculation about Justice Gorsuch and how he got-- he's from Colorado and so obviously he seems to have been exposed to tribes and to their issues a lot more than the other Justices.
New York Times recently, Adam Liptak had a piece highlighting Justice Gorsuch's Indian law jurisprudence. I was quoted in there just for the more general proposition that Justice Gorsuch does not care what anyone else thinks about anything, and he's just going to say what he says, which I think is right. But I don't have the full explanation of this feature of his jurisprudence, and I think it is going to be interesting to continue to watch. I mean, if I were speaking to a lawyer litigating an Indian law issue, I would feel fairly comfortable saying you can just count on Justice Gorsuch's vote. He seems to be all in on these issues.
Will: Yeah. I am curious to see whether that's right. I think somebody claimed, and I haven't seen anything that's wrong, that he literally has always voted for the tribal member or the tribe. There are some cases, I think the retroactivity of McGirt was a case where I think people thought that Justice Gorsuch-- I forgot whether to vote on a stay or some kind of issue, seemed to be maybe willing to take the anti-retroactivity position or something. I wouldn't be surprised if we eventually find some exceptions to that. But I still think that you're right about the general point.
I wonder if you have Justice Gorsuch's view of the rule of law and you're more familiar with a lot of Indian law issues than many judges and you just look at this period of history, part of what you see is just for a long period of time, people in power acted like the law didn't matter because they had power and they get away with it. And if you really believe in the Constitution as the source of the rule of law, that's like the big thing that's not supposed to happen. And that and maybe criminal defendants might be the two times you see over and over again that happening in a way that you need to stop if you're going to make the basic formalist rule of law project work in a serious way.
Dan: Yeah. But that still leaves the question of what is the correct legal answer in all these cases? And he seems to come down in one direction. Maybe he's right about all those questions, but it seems to be not a surprise when the decisions come out where he is.
Will: Or maybe the law is so far from where it should be, but again, not a surprise.
Dan: Yeah. So, do you have a prediction about what happens when this equal protection issues come back again?
Will: Well, I think there are four votes to uphold. I think Gorsuch, three liberals. So, I think you've got four votes. ICWA has four votes right off the bat. ICWA loses a vote from Justice Kavanaugh. Then, we need to run the table. If you're trying to strike ICWA down, you need to run the table with the others. You flagged this problem with respect to Justice Thomas and this question about whether there is such a thing as the kind of reverse incorporation theory. You have this constitutional amendment that applies to states, and somehow that goes backwards and magically changes the power of the federal government, creates rights against the federal government.
I don't know. If he sticks with that and refuses to apply the Equal Protection Clause, then maybe you've got five votes to uphold, but maybe not. Maybe there's a theory under which the federal law, they can do it, but then once you make states start to take these things into consideration, it's now state action, not federal action, that's violating equal protection. Maybe that's the solution to that problem. Is that right?
Will: I think that's right. I think he also suggests that the Citizenship Clause might independently supply some in these equality rules. And then, of course, the Citizenship Clause originally exempts Indian tribes, but then later they're brought in, so there'd be a whole another sort of set of arguments around that.
Dan: Yeah. I will say that the majority opinion here did not read as if the Court was champing at the bit to get rid of this law. Like, obviously they don't resolve the equal protection question, sometimes there are decisions you read where they're like-- you can see this in like NAMUDNO v. Holder, decisions where the court is basically saying, "Yeah, we're going to come for this law, but not today." This is the Richard Re's Doctrine of One Last Chance, where you kind of know they're giving your last warning. This opinion didn't have that feel to it. That doesn't mean that they're not. It seemed, frankly, kind of dismissive of the challenges.
Will: Yeah, I agree. This is definitely not a One Last Chance opinion. I mean, I think if I were a state family court judge, I would still feel I was perfectly free to entertain these challenges. The court expressly says, "Sure, state courts can still go ahead and hear these," but I don't think everybody's been put on notice that this is going to happen next year or two years from now.
Dan: Yeah, but did you agree with my initial diagnosis that we know where--
Will: That seems right.
Dan: Four of them, we know. Probably know where Kavanaugh is. I think we probably know where Alito is. Alito has expressed some skepticism of the law, I think. Was it in Adoptive Family, where he sort of said the thing about how this applies, even if the person has one 128th Indian blood or something like that, I don't remember the language.
Will: I think he said that at an oral argument. I think that didn't end up in the-- I think the majority opinion had just like one sentence where he said something like, "Such an interpretation would raise equal protection concerns." But yeah, it'd be interesting to think, I mean, in light of Allen v. Milligan, maybe Chief Justice Roberts would say, "Look, we've had the basic structure of Indian law for 50 years, and it's a little late to start upending that."
Dan: Yeah. And then, there always, as there will be, people coming in and with the cynical explanation of, "Roberts is looking to throw liberals some bones here in order to make the court not look like it's just a purely partisan institution." You're going to tell me that's wrong? I'm not going to take a firm view on the matter. The thing I will defend is the notion that he does care about the legitimacy of the court, perhaps more than anybody else on the court.
Will: Yeah. I was just going to ask, is it working? Can we give the court less of a partisan institution this month than it was last month?
Dan: Yeah, maybe. I think certainly in terms of Allen v. Milligan because one critique I had often made was that the cases in which they were most likely to be partisan are ones that directly affect the political process and which party can accumulate power. And that is a decision that unquestionably helps Democrats. I think I saw the Cook Political Report upgraded a bunch of their calls on house districts in favor of Democrats, like five different districts. And so that's kind of a big deal. And so that surprised me a ton. I didn't think that they'd get either the Chief or Kavanaugh on the end and that they got two. In a fairly robust fashion, they didn't really whittle down the law at all.
So, yeah, I think that one, in terms of the cases where you would expect partisanship to reign most strongly, are the cases where they affect how who wins the election, that one disrupts that narrative a little bit. We still need to see the rest of the term. Obviously, there's going to be some big Ws for the conservative side unless this term goes real sideways, but that's a meaningful decision that has actual consequences that isn't just some symbolic decision. What do you think?
Will: No, that's right. I mean, we talked also about United States v. Texas, where the Court turned aside, also on standing grounds, the state of Texas' kind of very aggressive challenge to the Biden administration's immigration enforcement decisions. I guess maybe that doesn't go quite to the who wins elections question, but it goes to the core of a big political challenge to a Democratic administration where Republican Justices say, "No, we're not going to entertain this challenge."
Dan: Yeah. Okay. Is there anything more to say about this one? We didn't really get into the dissents so much but we might want to save some time for the next case. So, I was a little surprised by this one. You were less surprised. Maybe it's not the end of the story. We'll see what happens with equal protection stuff at some point in the future if litigants take up Justice Kavanaugh's invitation. Let's talk about Hansen.
One other quick thing to note is got some a little bit of feedback from a knowledgeable listener about our coverage of the Schutte decision, the False Claims Act decision. I, in particular, was excoriated for saying that the view that the court rejected was stupid and for various reasons, a lot of the circuits, I think all the circuits had actually gone the other way. And one thing that was interesting, that was an issue that I had sort of wondered about when I was reading about reading the case but didn't really get into, is that these are cases involving corporations, but then the statute is phrased in terms of mens rea. And it's actually like often it's very confusing to say, what does a corporation know? And the courts seem to just totally gloss over that question. And it's one that, if you really think about it, might actually change what you think about, how to understand the kind of mens rea question or what qualifies as knowing under the statute.
Will: Hard to have a subjective account of knowing for a corporation.
Dan: Yeah. And so, maybe one that didn't get quite as much thorough treatment as it deserved. Our listener said, "I think the opinion really suffered from being argued during a big sitting when the court still has a lot of outstanding opinions and being the undercard argument on the day with Groff v. DeJoy." So, this might be one of these late term cases where the court kind of breezes through it and makes it seem like an easier issue than it really is. So, listeners, take a look, see what you think, see if we were unfair on that one.
Will: I think I also got a lot of blowback for some of the things I said about Glacier Northwest v. Teamsters, the labor law case last time, including at least one thing I said that was particularly wrong. I misunderstood, although I think the court misled me a little bit, what the parties had conceded and what they hadn't conceded. These questions about sort of like the ongoing NLRB proceedings and did it matter? The complaint was before the NLRB. And the majority says, "Well, we're not going to consider that because even the government agrees that it's not before us." But of course, the government was not the party. The Teamsters are the party, and the Teamsters did not concede that point. And normally, the party's arguments matter, not the United States arguments as amicus. I mean, here it's about the relevance of the federal government proceedings. You can see why.
But anyway, the actual argument by the party is the Teamster's argument looks a lot more like Justice Jackson's dissent, maybe without quite as much-- If anything, her dissent is kind of like their argument, but with rhetoric they would not have dared to use in front of the court in a lot of the same arguments. So, I sort of flubbed that part. Sorry about that.
Dan: Well, won't be the last one. So, Hansen, this is one that, for whatever reason, I hadn't dug into as much before the opinion came out. I think it's quite interesting. And it is about this federal criminal law that prohibits encouraging or inducing illegal immigration. And what does that mean, and does that raise constitutional problems? Does it mean that everyone who writes an op-ed that sort of suggests that people who are illegal immigrants or undocumented aliens should remain in the country, any number of other things, pieces of advice you give to someone who is in the country illegally, are those things all crimes, stuff that we might think of as protected speech?
Will: Now, Mr. Hansen, did he do something like that? Did he write an op-ed or engage in some sort of personal heart to heart with a friend or something like that? Is that what this case is about?
Dan: No. He did some legitimately bad stuff that I think all agree should, on its own, be capable of criminal punishment. He was running a scam where he would kind of tell people who were here illegally or at least who were not eligible for citizenship, and he would say, "Oh, just give me some money. I have this scheme called adult adoption in which I can figure out this loophole and get you citizenship." And through this, he lured over 450 noncitizens into his program and raked in nearly $2 million as a result. So here, he was encouraging or inducing an alien to come to enter or reside in the United States knowing or in reckless disregard of the fact that such coming to entry or residence is or will be in violation of law. That's the statute. That seems okay to criminalize what he did, right?
Will: Sure seems like it.
Dan: There's no doubt that [chuckles] he knew he was lying, and that he was tricking people and inducing them into doing stuff that's illegal under the immigration laws. And he was doing so for private financial gain, which gives him an even more significant penalty under the statute.
Will: And even if there are some kind of free speech issues about your rights to do this, doing it fraudulently for money is not protected.
Dan: Yeah.
Will: So, he does not himself have a good First Amendment claim--[crosstalk]
Dan: Can I just say one other thing about the facts though?
Will: Yeah.
Dan: Does this remind you of Smugler?
Will: [laughs]
Dan: Do you remember the Smugler guy?
Will: I do. [chuckles]
Dan: The guy who would claim to help people get across the Canadian border, and then he would also be working with the federal government to turn them in and somehow got away with this.
Will: Yeah, but he was kind of a good guy.
Dan: It's not really a legal point, but it seems like there's a crew of people like this who are engaged in these scams.
Will: This is so much worse than Smugler. I mean, Smugler, he had an interesting double game going on. It was kind of complicated and funny, and a relatively small number of people were involved. This is just heartless cruelty for selfish gain. It's a little funny, but only-
Dan: Yeah. I wasn't saying this is funny. I think this is real bad. I do think Smugler is funny. I'm not sure why. I don't know why Smugler is funnier, but maybe it's because of the license plate. But that's all I wanted to say about that. So, set this up again. Just recap. Something here that I think everybody agrees should be able to be punished in some way, what this guy did.
Will: Yes.
Dan: There's other stuff that I think everybody agrees, probably can't be punished, which is writing an op-ed or something like that. I don't exactly know what the hypo is, but an op-ed saying, if you were brought here as a child without your knowledge and you're now residing illegally, you should stay in the country. I think everybody thinks, or almost everybody thinks that should be protected under the First Amendment, but that's not this case. He didn't write the op-ed. So, why do we care about the harder case in this case?
Will: Because of something called the overbreadth doctrine, which is a special anti-severability doctrine that applies in free speech cases, like where normally if a statute applies to a bunch of stuff, and some of it's clearly within the heartland, of what you can criminalize and some of it's clearly unconstitutional, you normally say, "Okay, apply the statute to the Heartland stuff and don't apply to the unconstitutional stuff and we'll figure out to do with the stuff in the gray area." But there are a few cases in the free speech context where the court says, "If a statute sweeps in too much plainly legitimate speech, then we just say the whole statute is unconstitutional."
I guess we're so worried about the chilling effects that come with saying, "Well, we criminalized a bunch of speech, but we'll sort it out later," or, "We're so mad at Congress for not taking free speech seriously," or something. Justice Thomas [unintelligible [01:08:02] with this whole thing, But for some reason, in free speech cases, we sometimes say, "Look, this is criminalized a bunch of speech, and we're not going to sit here and parcel out the op-ed versus the advice to the friend versus the pastor versus the fraudulent abuser of poor undocumented immigrants who made millions of dollars off of them. They're all kind of the same."
But it means you have this strange posture of the defendant arguing for a broad interpretation of the statute. Because the first question is, what does the statute criminalize? Does it even reach on the text of the statute? And the defendant is out there saying, "Oh, look, they could prosecute them. They could prosecute them. They could prosecute them." And the government is coming in making arguments against itself saying, "Oh, no, we couldn't prosecute an op-ed case." And then, sometimes it's like, "Well, we did prosecute an op-ed case, but that was bad. We're sorry about that."
Dan: "We didn't want to."
Will: And there are a bunch of these at oral argument too. Justice Kagan, of course, is a master of these devastating series of hypos at an argument. And Brian Fletcher, who's representing the government, is of course, a master trying to answer them. And so, she had a series of these, and one of hers was a version of the op-ed case, but the one to one. Like, you have a friend, your friend is an immigrant who is undocumented or has overstayed their visa or something, is debating what to do. And you say to them, "Look, I think you should stay. I don't think you should leave. I think you should stay." Even on the government's kind of narrower interpretation, that violates the statute. It's like specifically counseling an individual person to reside in violation of the law. But you could tell it pained them to say that was illegal and they're worried about where that would go. That's the awkward posture this doctrine gives them.
Dan: Can you just explain this doctrine to me a little bit? Because I find it weird in the sense that if you imagine the limiting case which is like a statute that says, "It shall be illegal to speak to an illegal immigrant," that seems like a wildly unconstitutional statute. Right?
Will: Yes.
Dan: But then, you have a defendant who's convicted of speaking to an illegal immigrant in order to lure them into this scheme of giving money for this, in order to trick them into thinking that they could get permanent status. And so, we'd say, "Well, that thing can be punished. Therefore, the statute is fine as applies to you." That seems weird to me because it seems like you kind of have to look at the statute and figure out, is this unconstitutional stuff or not?
Will: Well, I think what you're describing is the instinct behind the overbreadth doctrine.
Dan: Yeah. Shouldn't we figure out whether this is the kind of thing generally that Congress can do rather than just starting at, is this conduct that some hypothetical statute could have criminalized?
Will: When you say, "This, the thing," there are two things. One is the statute, and one is the actions of the defendant. And normally in a lot of cases, we focus more on the actions of the defendant. Like in all those honest services fraud cases we're talking about. The court says, "Look, there are some things that are clearly non-vaguely honest services fraud," like bribes and kickbacks. And even though the statute doesn't use the words, bribes and kickbacks, that stuff's clearly stuff that Congress can criminalize. And so, we'll uphold the statute as applied to those and not as applied to other things. Or if we adopted some statute that maybe had some anti-commandeering problem in it, we might get rid of the commandeering part, but we wouldn't then get rid of the entire Federal Gun Control Act just because part of it commandeers the states or something. That's the normal intuition.
Dan: Yeah.
Will: But in speech, I think part of the reason we think about it differently in the case of speech is because we do worry a lot about notice and government discretion and so on. So, we worry that if we pass a statute saying nobody can criticize the government, that's just flatly unconstitutional. But as applied to a lot of things, that could be okay. If you criticize the government fraudulently and for money, maybe we can punish that. If you criticize the government and you're a federal government employee in a special position where you have fewer rights and so on and so forth. But it just seems wrong to us to kind of let the government adopt a broadly unconstitutional statute, and then go in after the fact and say, "Oh, actually, you're in this more limited category."
Dan: Yeah. Okay. So, different ways that a court can resolve this question could say, "Actually, even under the broad view, the statute is totally fine. We think that this is totally constitutional." Or it could interpret the statute narrowly to solve the problem, or it could say, "No, statute criminalizes too much, it's too broad. And therefore, can't be applied constitutionally to everybody." And the majority here is going to choose door number two. It's going to narrow the statute through statutory interpretation. And I've got seven votes for that. You have the whole court except for Justices Jackson and Sotomayor. Justice Jackson is going to write a dissent that's going to choose option three, which is to say the statute is unconstitutionally overbroad interpreting the statute in a broad way. And so, the majority opinion does something kind of interesting.
And this is where it really switches from being a First Amendment case to being a substantive criminal law case, because it looks at the statute and says, "Well, let's look at background principles of substantive criminal law, and mens rea. Let's look at the background on the crimes of solicitation and facilitation." And they say, traditionally, those require the specific intent to bring about a particular unlawful act. And we think that in drafting this statute Congress was sort of incorporating this traditional background about mens rea and the way that aiding and abetting law and so forth works. And that's the way to limit the statute rather than just including everybody who makes some statement, like some of the bad hypotheticals we talked about.
Will: And then, as an example, they say, note, there's this other part of the statute that refers to attempt. But everybody understands that doesn't mean attempt in the plain English sense is just like try. Like, "I attempted to do something. I tried to do it." Like attempt as a technical criminal law doctrine about what you have to do to count as an attempt. And in the same way, encourage and induce are not quite as well-known technical terms that mean something kind of similar. Do you buy that? Is this a reach?
Dan: I think I buy the move. In terms of consistency with case law, I do think that in terms of figuring out the mens rea statutes, this is exactly the stuff the court does all the time. It looks at these background principles. It does something weird. This is not unique to this opinion where it looks to the Model Penal Code, which is a fake set of statutes created by the American Law Institute that courts continue to cite for inspiration and understanding criminal statutes even though it's not the law. But it does that here.
Dan: Why is that weird? The American Law Institute also does statements which are also like fake common law instead of fake statutes and courts cite those too.
Will: Yeah. There were statements that may also be weird. There are arguments that the way in which courts rely on restatements is somewhat troubling, the way they treat them as if they're statutes, basically. There's a piece in the Columbia Law Review from last year by Shyam Balganesh criticizing that. But I think the difference is that restatements at least have the kind of possibly fictional rationale of actually just sum up what the law is. It's like, "Here's what courts have been doing. Let me put it into an orderly fashion and kind of turn it and distill it into clear rules."
Whereas the Model Penal Code has no impulse of doing that at all. It's very clearly a law reform project, wildly different from traditional common law criminal law in various important ways. One of which is that the court talks about but doesn't really talk about the difficulty is its standard for attempt under the Model Penal Code, there is the test for an attempt is whether you make a substantial step towards the commission of the offense. Whereas under common law principles, that was not the rule. That was an innovation of the NPC. But the court here says, substantial step is our test. Where did we get that? I guess we got that from the Model Penal Code, even though that's never been enacted by Congress.
So, I'm just saying it's a little weird. But I think more generally, I do think it's consistent with a very, very long set of traditions, when you look at a criminal statute, not just to kind of literally read the words that talk about mens rea but actually try to make sense of them, to put them in a bigger context, think about how this interacts with the larger picture of criminal law. Are we confident that this solves the problem? Because I'm not totally sure.
Will: No, that was my next question, yeah.
Dan: Yeah, because in the example of let's say we've got a man who's in the country illegally, and then his girlfriend really wants him to stay. They're in love, and she says, "Look, I know it's against the law, but I just desperately want you to stay, and I don't think you should leave," under the narrow definition of the statute, would that--
Will: I think that would still be reached. This is where I find actually a little vague where this ended up. So, gets around page 18 of the opinion. So, some things the majority opinions did, they've now ruled out are the hypos, where a minister welcomes undocumented people into the congregation and expresses the community's love and support. So, that lacks the specific intent, I gather. This is a nice one, a government official who instructs undocumented members of the community to shelter in place during a natural disaster. Again, you might just have a general shelter in place claim, including to people you know to be undocumented. And that of course is encouraging them to remain in the country illegally. But, again, maybe that lacks the kind of specific that we're talking about. But I don't think the majority grapples with the hypos, the one-to-one conversations with somebody you're close to hypo. That seems to actually still be covered by the statute.
Dan: Yeah. And does that seem troubling? Because that seems a little troubling to me.
Will: Well, but the majority then also says, footnote 5, "Overbreadth doctrine trafficks in hypotheticals. So, we do not and cannot hold that all future applications of clause 4 will be lawful, nor do we suggest they will necessarily fall into the speech integral to conduct category that would require a crystal ball, anybody who is still willing to bring as applied challenge," because part of what they're saying is also like those cases don't actually happen. Those cases might have as applied challenges are not the real prosecutions anybody brings. And so, we'll deal with them later.
Dan: Let me give you a hypo and let me see what you think about it, which is let's say you have someone who is a musician. And that person is known to you to be in the country illegally, and there's a law against specifically people who are in the country illegally from working, from being paid money. And you go to this person's concert, and you cheer. And you applaud and you're aware of all the circumstances. Should that qualify?
Will: I don't think that cheering them at the concert would have the specific intent that the majority has in mind, I don't think.
Dan: Why not? And specifically, if the target law is working while in the country illegally, or that you're in the country legally, but you're working in a way that's inconsistent with immigration law, stipulate that's the--
Will: Oh, I see. Well, buying the ticket alone might be then, because you're like-- assuming they put in the concert counts as work and they're not an employee, they've been a contractor, but assuming that the concert is somehow a crime, then I think you might be liable in this theory, just like as a principal or [crosstalk] aider or abettor. Well, it bothers me that we don't let people work in this country.
Dan: Yeah, but do you think that should be criminal? The reason I'm asking is that's actually the fact pattern of a very famous aiding and abetting case from King's Bench in 1951 where this defendant writes this magazine called Jazz Illustrated and this great saxophonist, Coleman Hawkins, comes to England and is going to perform jazz there, which violates an English law that says, "Aliens can't come do any work while they're in the UK." And he goes and he is aware of all the facts, and he claps and he doesn't boo, he doesn't tell Hawkins to get off the stage and he writes kind of a laudatory review. And that was upheld. That was upheld as aiding and abetting the immigration violation.
Will: Look, I do think the review changes the facts a little bit. I think cheering is obviously an expression of support. But I regret to say, frequently been at concerts or performances where I cheered or clapped when that wasn't actually my view. [chuckles] To not clap or to boo, that's a big thing. And so you clap politely or you cheer a little bit. I used to hold out on standing ovations. I used to never, ever stand unless I thought it really deserved a standing ovation.
Dan: Yeah.
Will: Especially now--
Dan: I'm with you in that position. But it is hard to--
Will: If you cheered without specific intent-- Certainly if you cheered, kind of like just to go along, you're like, "This is fine," but not like, "I'm glad you're here violating the law," I don't think that would qualify in the majority of theory.
Dan: Should that violate the First Amendment?
Will: No.
Dan: Just going to a concert, aware of someone's immigration status, cheering.
Will: This is where we started with, I don't like the idea that the government can criminalize the payment of money for services in general. But if we accept that, which is not a First Amendment issue, it's more of a like Lochner issue.
Dan: What did you just say?
Will: I said I don't like the government--
Dan: You don’t like the government can criminalize the payment of services for money of any kind?
Will: In general, yeah.
Dan: Of any kind?
Will: I'm not saying there should be no limits, but I don't like them usually. In general, I think you should be able to exchange money for goods and services pretty much without--
Dan: This is kind of like a libertarian, no vice law kind of position.
Will: Yeah. A general assumption that people, consenting adults should be able to make transactions that make them both better off. That's like the wellspring of free society.
Dan: Sale of organs?
Will: Sure, yeah.
Dan: [chuckles]
Will: There are obvious abuses in organ markets that justify some kind of regulation, but the bans on the sale of organs is deeply wrong, costs tons of lives.
Dan: Okay, but so you agree that this doesn't necessarily solve the hypo I laid out? Not that hypo, but the girlfriend hypo?
Will: Right. I mean, I think this is the funny thing about overbreadth. The idea of overbreadth is this statute criminalizes a bunch of stuff that's constitutionally protected, and you can kind of fight it from both ends a little bit. You'd say, "Well, the statute doesn't criminalize that much stuff." And also, a lot of it's not protected. And then there's still a delta of stuff that is protected, that is criminalized, that as long as the delta is not too big, then you can just reject the challenge. But it needs to be a little bit vague on both ends about exactly how far the statute goes and exactly how much is protected, as long as you've done it enough to make it not overbroad.
Dan: Okay, so that's the majority more to say about the majority?
Will: No. One piece of interesting background we didn't mention is that the court had this case before in a case called United States v. Sineneng-Smith, which was the same issue for the Ninth Circuit. And then, the Supreme Court decided not to resolve the case in that grounds and decided to instead summarily reverse the Ninth Circuit for having decided the case on the grounds when they weren't argued by the parties, an argument that was itself not argued by the parties, but the Ninth circuit did it again. [unintelligible 01:24:19]
Dan: Yeah. And the court here seems like a little annoyed at that.
Will: I didn't read that into it.
Dan: They're talking about what happened in Sineneng-Smith, says, "But Hansen's appeal was waiting in the wings giving the Ninth Circuit a second chance to address the overbreadth question. It reprised its original holding in Sineneng-Smith." Doesn't that sound like a little bit annoyed?
Will: I see what you mean. Sineneng-Smith was more one of those, like, one last chance opinions or something. Let's all be clear. The Ninth Circuit was on notice that were skeptical, this whole thing, and they're doing it anyway, so it shouldn't be a surprise. One last thing I had here actually and then we can turn a phrase, curious whether you think it works or not on page 18. This is where they go through the hypos that they do reject, the minister and the shelter in place. And Justice Barrett ends with, "Clause 4 does not have the scope Hansen claims, so it does not produce the horribles he parades." Is that a correct application of the parade of horribles?
Dan: Yeah. Why not? Because the subject, normally you think the horribles are the ones parading.
Will: Never thought about who was parading the horribles. I guess I assume they're parading themselves rather than being paraded by the-- but yeah, that's right.
Dan: Yeah. But I think you could say if you accept the argument, you believe that the horribles are parading and here when the argument is just being made and you don't believe it, the person is parading the horribles to try to convince you. I think I'm good with that. But the way you said it sounds like kind of rhymey. "Clause 4 does not have the scope, Hansen claims, so it does not produce the horribles he parades." No, never mind. It has a certain cadence to it. I'm okay with that. Not about to call Barrett style.
Will: I think she's doing well, right?
Dan: Yeah, I guess I don't feel like I have a grasp for a really distinctive style for her yet.
Will: Okay.
Dan: She's relatively straightforward, has some totally fine turns of phrase, but I don't know if she's written a real style defining opinion, if that makes sense.
Will: You don't think of the Brackeen like annoyance with the party as style defining? That's more substance?
Dan: I'm not saying that she doesn't have elements that are distinctive. I just think that there are things I can point to in some of the other Justices where I'm like, "This is really the thing that shows me what they're like as a writer," and I don't totally know if I have that yet. I think I need some more.
Then, we've got concurrence by Justice Thomas expressing the concerns you noted about the overbreadth doctrine, and then you've got dissent by Justice Jackson, a lot of which is about statutory interpretation and saying that the majority gets it wrong as a matter of statutory interpretation.
Will: But they would interpret the statute not to have this strong mens rea requirement and interpret the statute to be much broader than the majority.
Dan: I wasn't sure about that.
Will: Yeah. So, I hate to accuse people of bad faith, but let me ask you the question this way. If there were a case involving somebody in this area, who didn't raise a constitutional challenge, somebody who like the pastor or whichever hypo you want and they just raised a statute interpretation challenge, do you think that Justice Jackson and Justice Sotomayor would vote to convict that person? They would say, "Yeah. The statute is really broad. You should have raised a constitutional challenge."
Dan: Well, it's a weird hypo because you're saying the person doesn't have a First Amendment argument?
Will: They didn't make it for whatever reason.
Dan: I don't know. Maybe they would say yes, but then they'd write an opinion stating really significant First Amendment concerns and asking them to be raised. But I don't know. I mean, I think I can certainly see the skepticism that you are noting, which is that maybe this is opportunistic textualism given the kind of valence of the question. And I could certainly imagine that alternate universe where they come down differently on the meaning of the statute.
Will: Yeah, I may be also reminded, and the majority does make this point, that sort of this is a weird case where the canon of constitutional avoidance kicks in to say, "Look, even if you weren't sure who was right, shouldn't you take the narrower view of the statute in order to help uphold it?"
Dan: Yeah, that seemed to be like a very strong argument in favor of the majority, even if I'm not 100% convinced that the way in which they do it totally solves all the problems. But there are times when the court, like in Skilling, the honest services fraud case that you alluded to a few minutes ago, where the court narrows the honest services fraud statute to bribes and kickbacks. I find that very indefensible as a matter of textual interpretation and just making it up and it will avoid a very serious constitutional issue.
But here, I didn't think this as a matter of statutory interpretation, what the majority was doing was implausible. Is it 100% right? I don't know. It seemed quite defensible to me and consistent with the kinds of things they do in other criminal cases.
Will: Yeah, I do think another sort of dichotomy going on here, and I'm not sure what this is legally, is the relationship between the law on the ground and the statute. It's part of the majorities, they make this point and I feel like it's actually doing a lot of work of like of, "Look, the real prosecutions are more like Mr. Hansen, like really bad people who don't have good claims. And the sympathetic things don't happen that often." I'm not sure that's actually like an overbreadth. So, I'm not sure that the denominator you're supposed to look at is like prosecutions under the statute as opposed to things the statute applies to.
But then, the dissent makes this point drawn from [unintelligible [01:29:46] that it's not just the prosecutions, of course. It's who does the Customs and Border Patrol survey, who is chilled. And I do think there are a lot of people who worry about the statute and a lot of people who don't engage in various kinds of probably protected behavior because this is a scary area of law they don't want to run afoul of, people who are working with immigrant communities, people working in legal services, so on. And I wasn't sure, I thought the dissent might have a good point there that you can't just say they don't bring these prosecutions, that doesn't actually tell you that much.
Dan: Okay. We're running pretty long, so that might be a place to cut it, unless you have any final thoughts.
Will: Are we going to escape without talking about Justice Alito's op-ed?
Dan: [exhales] Yeah, I think we might.
Will: Good.
Dan: ProPublica was doing some stuff, digging into Justice Alito's ride on a billionaire's private plane and being put up in a fancy lodge, and after they asked him some questions.
Will: It's not that fancy, Dan.
Dan: No, a friend of mine looked it up. Apparently, it is extremely fancy. And rather than respond to the request, he kind of scooped them by going straight to the friendly venue of the Wall Street Journal and writing a very detailed point by point, which is sort of an op-ed, but kind of a weird thing, explaining why he did nothing wrong. I think there's stuff to criticize about the way. I think releasing a statement I think it's fine. I think doing in the pages of the Wall Street Journal, which is the opinion pages, which have seen as the home of conservatives, I thought, was strange and not something that was likely to-- I didn't think it was likely to make him or the court look better. But we don't have time to debate it. Let me have that one.
Will: I miss the Dick Cheney duck hunting opinion for Justice Scalia. That was the way it's supposed to be.
Dan: Yeah, or just a statement on the Supreme Court's website. A press release or something. I mean, there's no particular reason why it had to be in the Journal [crosstalk] sending a message.
Will: Justice Gorsuch releases a statement, and we say it should have been an op-ed. And Justice Alito releases an op-ed, and we say should have been a statement. That could all be right, I'm just saying.
Will: It depends on what the thing you're talking about is.
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Will: Thanks very much for listening. Please remember to rate and review us, preferably without complaining too much about the infrequency of our episodes, but we deserve it at this stage of the term. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: Check out our website, dividedargument.com, for transcripts, store.dividedargument.com for merchandise. Email us at pod@dividedargument. We probably won't respond. You do a better job responding than I do, Will. But we do read everything, and occasionally we mention on the show. Leave us a voicemail, preferably in song form, 314-649-3790. And if there is a long delay before our next episode, it is because Will has been detained by the Mossad because of his participation in protests in Israel.
Will: I did not participate. I was just there, and hopefully this episode won't drop until--[crosstalk]
Dan: You induced and facilitated and solicited and encouraged, right?
Will: No specific intent.
Dan: Okay. [chuckles]
Will: Okay.
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