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2018

Sources of Law (Part Two): The First Amendment and Free Speech

NYU Law Review Online

The Sources of Law project is an examination of the origins and hidden ways that important legal authorities impact our lives without us fully understanding why or how. This project will focus on three areas: Executive Orders, the First Amendment, and insurance.

 

Sources of Law (Part One): Executive Orders, Unilateral Executive Action, and Faithful Execution of the Laws

NYU Law Review Online

The Sources of Law project is an examination of the origins and hidden ways that important legal authorities impact our lives without us fully understanding why or how. This project will focus on three areas: Executive Orders, the First Amendment, and insurance.

Before January 27, 2017, you may not have been a regular executive-order watcher—the folks here at N.Y.U. Law Review’s Online Department certainly weren’t. Now, however, many of us are on a “first-number” basis with EO 13769, President Trump’s notorious travel ban, and have grown accustomed to tracking his rollouts of new EOs. (Click here for the current list. You can track presidential actions yourself using the “Presidential Actions” app, available for free on your preferred platform.) Executive orders, however, are nothing new—Franklin Roosevelt’s 1942 authorization of Japanese-American internment came via EO 9066, Harry Truman temporarily seized American steel plants under the auspices of EO 10340, and George W. Bush established the Office of Homeland Security through EO 13228.[1] Nevertheless, the ubiquity of these documents belies their rather obscure legal foundations and the contestable contours of their legal authority. What gives EOs legal legitimacy? Here’s Online’s fast take:

Origins and Legal Authority of EOs

Although no provision of the Constitution or early federal statute explicitly authorizes the use of executive orders, the practice took hold during George Washington’s presidency: Various commentators credit Washington with issuing the first “executive order” when, in 1789, he sent duplicate letters to the heads of several executive departments requesting that they report back to him “a full, precise, and distinct general idea of the affairs of the United States.”[2] While these letters hardly resemble the public, formally published declarations we recognize as executive orders today, they are regarded as a sort of ur-EO because their essential function was the same as that of the modern EO¾that is, affording Presidents seeking to fulfill their Article II duties a mechanism for directing subordinate executive officials to do certain things.

The basic legal authority for EOs thus stems from Article II of the Constitution—a given EO is legitimate if the President is using it in furtherance and within the confines of his or her Article II duties. The difficulty with this story of EO legality, however, is that the scope of presidential power is often hotly contested and, frankly, unclear. As an illustration, consider the controversy surrounding George Washington’s first presidential proclamation. As the French Revolutionary War took on a global dimension in 1793, the Washington administration sought to pursue a position of U.S. neutrality. While a broad reading (advocated by Alexander Hamilton) of the President’s Article II “executive power” suggested that Washington could make this policy decision unilaterally, Washington in fact considered calling Congress back into session so that the position could be declared by the legislative, rather than executive, branch. This evidenced Washington’s appreciation for a narrower reading of executive power that James Madison notably supported. Madison believed that the President’s core duty was to faithfully execute laws passed by Congress. They thus viewed presidential actions not explicitly authorized by the Constitution or federal statute with skepticism. A unilateral declaration of neutrality by the President was sure to raise eyebrows, for not only did it push the outer limits of constitutionally enumerated presidential power, it looked an awful lot like the sort of presidential lawmaking the Constitution’s separation of powers was meant to foreclose.[3]

In the end, Washington left Congress’s recess untouched and issued a presidential proclamation of neutrality on April 22, 1793. The proclamation declared the country’s intention to maintain “friendly and impartial” conduct toward the belligerent parties, enjoined Americans from acting in ways that would undermine U.S. neutrality, and directed federal law enforcement to prosecute individuals who did so. Madison, writing under a pseudonym, defended the proclamation’s constitutionality, arguing that the President’s declaration of neutrality merely stated a diplomatic position Congress had already adopted, and its directions to American citizens and law-enforcement officials were necessary to ensure that this law of Congress would be faithfully executed.

Nonetheless, as Washington began to implement the policy of neutrality, his administration engaged in activity that looked awfully legislative. In July 1793, for example, Washington’s cabinet produced a set of “Rules Governing Belligerents” that told U.S. residents how they must interact with foreign naval vessels in U.S. ports.[4] Although these rules were driven by the desire to enforce the United States’ neutrality policy, they evidenced how “faithful execution of the law” can open the door to a certain amount of executive “lawmaking” in the form of discretionary determinations about how the law will be enforced. Washington thus became subject to the criticism that he was exceeding his Article II authority and stepping on Congress’s legislative toes. Congress’s 1794 passage of the Neutrality Act, which authorized the administration to prosecute those who violated the neutrality proclamation, however, provided a congressional seal of approval that covered Washington’s legal bases.

The controversy over Washington’s neutrality proclamation illustrates why the legal authority for executive orders is often hazy: The proper distribution of power between the President and Congress is something the Constitution leaves open to interpretation. Justice Jackson discussed this issue in his concurrence to the Supreme Court’s opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In Youngstown, the Court struck down President Truman’s seizure of American steel mills (carried out under the auspices of Truman’s own executive order outlining the action) as unconstitutional. Justice Jackson conceded that when the President acts pursuant to an express or implied grant of power from Congress s/he is acting at the full height of presidential power. However, when the President acts contrary to the express or implied will of Congress (as Truman had with his steel-mill seizure), s/he acts in a manner clearly outside the President’s constitutional authority. In the middle lies a “zone of twilight” where Congress has neither granted nor denied presidential authority (as, for example, when Congress implicitly endorses a diplomatic position but has not passed laws stating how that policy ought to be enforced). In the “zone of twilight”, the proper distribution of power between Congress and the President remains uncertain. “In this area,” Jackson cautioned, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”[5]

The history of EOs, from Washington’s neutrality proclamation to President Trump’s travel bans, appears to bear out Jackson’s prediction. Sometimes, presidential action in the “zone of twilight” goes unchallenged or eventually receives congressional authorization; other times, legal challenges or political backlash check this exercise of presidential power. Just as the scope of executive power remains subject to debate, so too does the validity of EOs issued in the “zone of twilight”.

Executive Orders, Presidential Proclamations, and Executive Action: What’s the Difference?

EOs do not trigger every “zone of twilight” presidential action. For example, Abraham Lincoln announced the emancipation of slaves in Confederate states via the Emancipation Proclamation (not the Emancipation Executive Order), and the Obama administration enacted the DACA and DAPA programs through a series of agency memoranda which were announced to the public via press conference. It seems that the decision to announce executive action as an EO rather than through a free-form inter-executive missive (a 1974 Senate Report alleges that early executive action “sometimes took the form of hastily scribbled Presidential endorsements on legal briefs or upon the margins of maps”[6]) turned simply on the earliest Presidents’ determinations as to whether the action in question was the sort that merited formal announcement.

The first effort to delineate and publicly track EOs as a specific category of executive action came in 1907, when the Department of State numbered and published the executive orders and proclamations it had on file, starting with an order of President Lincoln’s from October 20, 1862, that had established military courts in Louisiana.[7] The numbering system was thenceforward used to catalog new EOs and Proclamations as they were issued.[8] In 1935, Congress passed the Federal Register Act, which requires that all EOs and proclamations be published in the Federal Register.[9] The Act was motivated, at least in part, by the flood of executive orders the Roosevelt administration had issued in the course of rolling out New Deal programs.[10]  While the publishing requirement established a congressionally-mandated method for publicly cataloging EOs, nothing requires the President to issue any of his directives as EOs. If this is the case, what motivates a president to initiate executive action through EO rather than another medium? Why did President Trump enact his travel ban via EO, rather than some other executive mechanism?

The answer to this question appears to turn largely on where the President locates the source of legal authority for his or her contemplated executive action. The Obama administration’s decision to roll out DACA and DAPA via agency-wide memoranda, rather than via EO, signaled that these programs represented nothing more than an agency’s enforcement plan for current immigration law. While Obama came under fire for engaging in presidential lawmaking that went beyond any authority he held under the Constitution or federal immigration law,[11] many were willing to accept that these programs simply codified agency policy on the exercise of prosecutorial discretion. Had Obama declared this policy of prosecutorial discretion via EO, the EO’s legal grounds and inter-executive effect would be no different than the agency memos which initiated DAPA and DACA, but the President might have found himself subject to even stronger charges of executive lawlessness.

In comparison, President Trump’s travel ban was issued under authority of section 212(f) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(f), which states that the President “may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” (emphasis added). Under the Trump administration’s theory of travel-ban legality, EO 13769 (and its follow-up, EO 13780) fulfilled the INA’s proclamation requirement and constituted a valid exercise of immigration authority delegated to the President by the INA.[12] But imagine the alternate universe where the INA doesn’t contain the proclamation requirement. In this alternate universe, President Trump could rely on a similar theory of statutory authority for the travel ban, but he would be free to enact the program through any mechanism of his choice—EO, inter-executive memo, perhaps even a presidentially-authorized tweet . . . While the EO often serves as a target to those critical of excessive presidential powers, the travel ban example highlights how it can be used by Congress as a tool for presidential accountability, a publicity requirement that prevents presidents from evading public scrutiny when enacting controversial policy.

More to Chew On

A lot more can be said about EOs, but including all that here would result in the Moby-Dick of blog posts. If you still find yourself puzzling over the ins and outs of EOs, we recommend reading “Executive Orders in Court,” a Yale Law Journal Note by Erica Newland that surveys executive order jurisprudence and analyzes the federal judicary’s inconsistent approach to EO interpretation. You might also want to check out “The President’s Enforcement Power,” a 2013 N.Y.U. Law Review article by Professor Kate Andrias, who served as special assistant and associate counsel to the president of the United States, and as chief of staff of the White House Counsel’s Office during the Obama administration. Professor Andrias discusses the various ways presidents of the modern era have influenced agency enforcement activity, including through the use of EOs. She acknowledges the constitutional issues embedded in such efforts and argues for greater enforcement coordination and disclosure to enhance the efficiency and accountability of the administrative state.

[1] Lily Rothman, 9 Executive Orders That Changed American History, Time (Feb. 6, 2017), http://time.com/4655131/executive-orders-history/.

[2] See, e.g., Thomas V. DiBacco, George Washington Had a Pen, but No Phone, for Executive Orders, Wash. Times (Aug. 14, 2014), http://www.washingtontimes.com/news/2014/aug/14/dibacco-the-first-presid…

[3] For further historical background and a helpful discussion of the political and legal issues surrounding Washington’s neutrality proclamation, see Gary J. Schmitt, Washington’s Proclamation of Neutrality: Executive Energy and the Paradox of Executive Power, 29 Pol. Sci. Reviewer 121 (2000).

[4] Id.

[5] Youngstown, 343 U.S. at 637 (Jackson, J. concurring).

[6] S. Rep. No. 93-1280, at 2 (1974).

[7] Id.

[8] Id.

[9] See 44 U.S.C. § 1505.

[10] Id. at 2-3.

[11] See, e.g., Good Riddance to DAPA—but DACA Should Be Next, National Rev. (June 16, 2017, 7:00 PM), http://www.nationalreview.com/article/448731/dapa-immigration-order-trump-rolls-back-obamas-executive-action (referencing the Obama administration’s “lawlessness” in enacting the DAPA and DACA programs).

[12] The Ninth Circuit disagreed. See Hawai’i v. Trump, 859 F.3d 741, 782 (9th Cir. 2017) (concluding that President Trump’s second travel ban was properly subject to a TRO, as plaintiffs had established, inter alia, a likelihood of success on the merits that the travel ban was outside the President’s authority under the INA and, citing Justice Jackson’s Youngstown concurrence, classifying the travel-ban action as being at the “lowest ebb” of the President’s executive power).

2017

The Undue Influence of Surveillance Technology Companies on Policing

Elizabeth E. Joh

Conventional wisdom assumes that the police are in control of their investigative tools. But with surveillance technologies, this is not always the case. Increasingly, police departments are consumers of surveillance technologies that are created, sold, and controlled by private companies. These surveillance technology companies exercise an undue influence over the police today in ways that aren’t widely acknowledged, but that have enormous consequences for civil liberties and police oversight. Three seemingly unrelated examples—stingray cellphone surveillance, body cameras, and big data software—demonstrate varieties of this undue influence. The companies which provide these technologies act out of private self-interest, but their decisions have considerable public impact. The harms of this private influence include the distortion of Fourth Amendment law, the undermining of accountability by design, and the erosion of transparency norms. This Essay demonstrates the increasing degree to which surveillance technology vendors can guide, shape, and limit policing in ways that are not widely recognized. Any vision of increased police accountability today cannot be complete without consideration of the role surveillance technology companies play.

Loving v. Virginia and White Supremacy

Peggy Cooper Davis

Professor Davis examines a neglected but potentially important aspect of the Supreme Court’s opinion in Loving: the Court acknowledged, for the first and only time, the social construction of white supremacy.

Toward an Intra-Agency Separation of Powers

Bijal Shah

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s argument for a form of agency fragmentation called the new “administrative separation of powers,” a structure consisting of three fundamental sets of actors: agency heads, civil society, and the civil service. According to Michaels, his thought-provoking idea has roots in the traditional separation of powers among the branches of government. Michaels also claims that these three intra-agency actors are able to maintain a “self-regulating ecosystem” that allows agencies to improve their functions similarly to the way that the constitutional checks and balances sharpen the operation of the political branches.

For Michaels’s tripartite agency to be legitimately characterized as a form of separation of powers, however, there must be a meaningful connection between the two frameworks. As of now, the analogy is hindered by some essentials aspects in which Michaels’s agency players do not reflect the three branches of government. These include, for example, each administrative stakeholder’s relative inability to protect its own jurisdiction from encroachment by the others and constraints on agencies’ capacity to further rule of law values. These limitations render constitutional separation of powers principles less valuable to the development of Michaels’s theory, because they reduce the extent to which the tripartite agency might, in fact, behave like the political branches.

In addition, both the use of Michaels’s model for executive-checking purposes and the ultimate success of his theory’s overall execution depend on the extent to which they
are grounded in the concrete characteristics of agencies and the polity. Additional substantiation of Michaels’s tripartite could be furthered by analysis of the diversity
among agency heads and civil servants across the executive branch and of the weaknesses in civil society’s ability to leverage its interests vis-à-vis government officials. Those seeking to realize the promise of Michaels’s model should also consider the impact of differences in administrative, political and societal structures, orientations and incentives on Michaels’s framework.

Bijal Shah, Toward An Intra-Agency Separation of Powers​, 92 N.Y.U. L. Rev. Online 101 (2017).

2016

Complementary Separations of Power

Miriam Seifter

In Response to: Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

This Essay responds to Jon Michaels’s claim, insightfully developed in his recent Article, that the administrative realm functions as a self-regulating ecosystem. Michaels’s claim rests on his description of a trio of administrative rivals that mirror the constitutional branches: The civil service manifests key rule-of-law qualities of the judiciary, agency heads mimic the partisan leadership of the presidency, and—of greatest interest here—civil society plays the “popular, deliberative” role of Congress. Michaels argues that this “administrative separation of powers” legitimates and appropriately constrains agency action. Further intervention by the constitutional branches, in his view, is generally unnecessary and destabilizing.

Michaels’s intriguing comparison between civil society and Congress raises important questions about the oversight function of each institution. I argue that substituting civil society for Congress runs the risk of replicating—and likely exacerbating—pathologies of inequality and exclusion that undermine oversight’s democratic value. Both Congress and civil society are prone to elitism and representational failures that fall short of constitutional ideals. Yet because their respective mandates, structures, and capacities differ, the two institutions are likely to perform better oversight in tandem than civil society could alone. Congressional oversight, I argue, may channel a different and somewhat more inclusive perspective than civil society alone. At the same time, civil society has advantages over Congress: It can give voice to political minorities, act more swiftly and decisively, and engage with agencies more consistently over time. Taking account of the flaws and attributes of each institution thus points toward a reorientation of Michaels’s model. Rather than casting the administrative sphere as self-regulating in isolation, we should focus on the complementary nature of the administrative and constitutional rivals.

Miriam Seifter, Complementary Separations of Power, 91 N.Y.U. L. Rev. Online 186 (2016).

Material Adverse Effects as Buyer-Friendly Standard

Y. Carson Zhou

Commentators often remark that Material Adverse Effects (MAE) Clauses are difficult to successfully invoke. Indeed, the Delaware Court of Chancery stated in Hexion that “Delaware courts have never found a material adverse effect to have occurred in the context of a merger agreement.” But commentators’ preoccupation with the high legal hurdle for establishing an MAE at trial understates the ways in which the existing case law favors buyers during pretrial motions and settlement negotiations. This Article argues that the Delaware standard for establishing an MAE favors buyers at the pretrial phase by making it easier for buyers to drag out litigation in order to force sellers to agree to a renegotiated deal price. The Article then discusses the implications for dealmakers.

Y. Carson Zhou, Material Adverse Effects as Buyer-Friendly Standard, 91 N.Y.U. L. Rev. Online 171 (2016).

Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?

Nora V. Demleitner

In Response to: Return of the JRAD

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

Nora V. Demleitner, Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?, 91 N.Y.U. L. Rev. Online 150 (2016).

A New Hope: Bringing Justice Back into Removal Proceedings

Jennifer M. Chacón

In Response to: Return of the JRAD

In his article, Return of the JRAD, Professor Jason Cade makes a strong and viable case that the Department of Homeland Security (DHS) can and should take into account nonstatutory Judicial Recommendations Against Deportation (JRADs) and other criminal justice signals of diminished criminal culpability when deciding whether or not to charge a noncitizen with deportability. Professor Cade’s proposal is a good one. The overall effects of his proposal will be modest. It can neither eliminate racial disparities in the criminal justice system and deportations nor end capricious distinctions between similarly situated criminal defendants in removal proceedings. On the other hand, it has no notable downsides and some significant potential upsides. Part I explains why exercising discretion along the lines that Cade proposes is firmly within DHS’s discretion and why such modest and rational exercises of discretion are unlikely to spark political backlash. Part II elaborates upon the potential benefits of Cade’s proposal. First, by encouraging criminal sentencing judges to issue nonstatutory JRADs, the Cade proposal promises to provide DHS with useful information otherwise unavailable at the charging stage, thus increasing charging fairness. At the same time, his proposal would make a positive change in the way that at least some criminal sentencing judges think about immigration consequences in criminal sentencing. Ultimately, it might even change the way that we talk, think, and write about the nexus of immigration and criminal law—better exposing the common failings and the interconnections of these systems to scholars and practitioners other than those who routinely work at their intersection.

Jennifer M. Chacón, A New Hope: Bringing Justice Back into Removal Proceedings, 91 N.Y.U. L. Rev. Online 132 (2016).