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May 6, 2016

Luis v. United States and a Right to Counsel for the Rich

The Sixth Amendment, which the Supreme Court has for over half a century interpreted to afford indigent criminal defendants a right to a lawyer at government expense, now also provides wealthy defendants something: protection from the government’s freezing their untainted assets (as opposed to those traceable to, or proceeds of, crime) to prevent retaining counsel of their choice. As principled—and protective of the Sixth Amendment—as this distinction may be, it reinforces something much more pernicious: there is now effectively a right of the rich to be free from impoverishment by the government, to protect their Sixth Amendment right to retain counsel of their choosing, while the identical Amendment does not provide an indigent defendant access to an actual lawyer of anyone’s choice.

Luis v. United States, was quite simple: federal law permits pre-trial freezing of certain criminal defendants’ assets that are proceeds of the crime, traceable to the crime, or of equal value to either of the first categories. Ms. Luis allegedly obtained $45 million through health care-related fraud, but when indicted had only $2 million, which the government agreed was neither proceeds of nor traceable to the fraud. Freezing these funds, to satisfy what the government contended would be restitution upon conviction, would preclude her hiring counsel of her choice. If the Sixth Amendment truly conferred a right to hire counsel of one’s choice, then did it also prevent the government from vitiating this right by freezing all one’s resources with which to pay counsel? Yes, the Court found, although not for any reason that commanded a majority.

Given the essential fungibility of money, the distinction between freezing financial assets that are proceeds of criminal activity, or even arguably such, and those equivalent in amount but conceded to be untainted may be a bit hazy. But it is this distinction between the characterizations “tainted” and “untainted” assets (or what’s “mine,” i.e., the defendant’s, versus what’s “yours,” i.e., the Government’s, in Justice Breyer’s language for the plurality), as opposed to simply “forfeitable” assets (Justice Kennedy’s terminology for the dissenters) that divides the four member plurality from the three dissenters. Justice Thomas’ concurrence in the judgment, based on a plain meaning interpretation of the term “right to the assistance of counsel,” that must have meant to the Framers a right not to have the government seize all one’s resources because the only counsel available “back in the day” was one you hired, and 17th and 18th century understandings of “forfeiture” were exclusively post-conviction, is a paean to the late Justice Scalia (cited five times by name). Whatever the merits of the tainted/untainted as opposed to forfeitable characterizations, after Luis v. United States, it’s crystal clear the government may no longer seek to freeze assets that can’t be traced to criminal activity, even if they would be all that’s left to ensure adequate resources are available for forfeiture after conviction, if doing so would preclude a rich defendant from hiring counsel of her choice.

Of course, this choice is not limited to wealthy defendants, but one—like the choice to sleep under the bridges of Paris, beg in the streets, or steal bread—that the law in its majesty equally forbids the rich and the poor, though it stands in stark contrast to the right of an indigent criminal defendant to actually have a genuine, living, breathing lawyer of anyone’s choice. As the Court held in Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008), even the attachment of the right to counsel by appearance before a judicial officer in a criminal proceeding does not then give an indigent defendant a right to a lawyer. Whether even a delay of six months to obtain representation by a lawyer would harm this right is a nice, but unreached, question. (The Court’s studied avoidance of this question ensures indigent defendants often receive counsel so late that their rights are not effectively protected, as detailed in 2014 by the Sixth Amendment Center.)

Both the plurality and the principal dissent in Luis are only too quick to point out the parade of horribles facing such affluent defendants: they would have to “fall back on overworked and underpaid public defenders.” (Breyer, J., Slip. Op. at 15.) Of course, “[g]iven the large volume of defendants in the criminal justice system who rely on public representation, it would be troubling to suggest that a defendant who might be represented by a public defender will receive inadequate representation.” (Kennedy, J., Slip Op. 14.) Yet this is exactly what the Brennan Center report, that Justice Kennedy himself cites, states: Inadequate funding means public defenders “are simply unable to provide clients with their constitutional right to counsel, effectively making Gideon an unfunded mandate at a time when public defenders are needed most.”

A wealthy defendant cannot constitutionally be converted into an indigent one, with the attendant disabling effects for her defense, yet an indigent defendant not only has no right to access the sort of preventive, proactive litigation that retained counsel can provide, but cannot even rely on having the right to counsel made real—with an actual lawyer—until what may be sometime after having appeared in court. Just one more way the rich really are different, even when they are charged with a crime.

Professor David Siegel

March 18, 2016

Drumpf ™?

TV host John Oliver made waves recently when he launched a campaign on his HBO show Last Week Tonight to “Make Donald Drumpf Again,” a reference to the Republican presidential frontrunner’s less-than-sonorous historic family name. As part of that 21-minute skit, which has been watched an astounding 21 million times on YouTube in just a few days, the host claimed to have filed for trademark protection for the term DRUMPF. Did he? Can he?

Yes, and maybe. The application for the mark, now available on the USPTO website as Serial No. 86921166, shows that he did file an intent-to-use federal service mark application for DRUMPF in connection with, “Provision of a website featuring multimedia content.” Or, strictly speaking, a New York-based Delaware company called Drumpf Industries, LLC (dutifully formed a few weeks ago) filed it. So, yes, Oliver is on file. Were he serious about registering, however, the application faces a few challenges, any one of which might be raised by a trademark examiner (or even Mr. Trump himself, should it ultimately be approved by the Trademark Office).

First, Section 2(a) of the Trademark Act forbids another from registering a mark which “falsely suggest[s] a connection with persons, living or dead.” This raises the interesting question of whether DRUMPF falsely connects with Trump. Before the show aired, the answer would almost certainly be, no. Back then, no one had heard the term let alone associated it with the candidate. Now, however, each one of the more than 21 million viewers of the YouTube clip and the show, and all the members of the greater public that learned of the name through other media outlets, associate DRUMPF with Trump. Indeed, that was the very design of the thing. The more important question, though, is whether it is a “false” connection. I would argue no, it is not. It is a connection created by a comedian expressing himself. The public connects the term with Mr. Oliver’s tirade as much (if not more) than Trump. In that regard, it is a perfectly accurate connection made by a comedian making fun of a political candidate. No one, in short, thinks (falsely) that Trump himself is connected to the filing. He is just (truly) connected to Oliver’s joke.

Second, Section 2(c) of the Trademark Act prevents registration of “a name . . . identifying a particular living individual except by his written consent.” Assuming that Trump did not and will not consent, the question in this case becomes whether it identifies him. Again, before the show aired, almost unequivocally, no. But Oliver’s goal is to use it as a form of identification for Trump. So, do we credit that goal and count it as a form of identification, or do we look at whether Trump himself uses it self-referentially? The Trademark Office examination manual explains, “Section 2(c) applies not only to full names, but also . . . nicknames, if there is evidence that the name identifies a specific living individual who is publicly connected with the business in which the mark is used, or who is so well known that such a connection would be assumed.” Is, then, this “nickname” publicly connected to Trump, or is he so well known that it would be assumed? We’ll have to see how the USPTO responds, but again I would argue no, it is publicly connected to a comedian’s ironic depiction of Trump, not to the particular living individual himself. And while Trump might be famous, the name DRUMPF is essentially a parody and few would assume that he identifies with it.

Third, Section 2(e)(4) of the Trademark Act bars registration of any mark which “is primarily merely a surname” (i.e., a last name). These objections are notoriously hard to overcome and generally at the discretion of an examiner. Is DRUMPF likely to be perceived as a last name by the “purchasing public” (which, in this case, would be users of the claimed website)? Unfortunately for Oliver, the answer here might be, yes. The difference between this analysis and the above is that we now don’t care whether it is associated with Trump, but just whether it is thought of as a last name in general. And, again thanks to Oliver’s own popularity and messaging, anyone who cares enough to visit the DRUMPF site would almost by necessity perceive DRUMPF to be a last name. (Incidentally, one could write an entire law review article on the separate, interesting issues relating to the URL and cybersquatting , but that will have to wait for another time).

Finally, under Section 1(b) of the Trademark Act, any applicant swears under oath that they have a good faith “bona fide intention” to use the applied-for mark in commerce in connection with the services listed in the application. Here, that is provision of a multimedia website. While usually not an issue at the outset with intent-to-use applications, Oliver (or, really Drumpf Industries) would eventually have to show bona fide use of the mark as claimed through a screen-shot or the like. The problem right now is that the site is hardly “multimedia”—it is a static page where you can buy a hat or link to a Google Chrome extension that converts the name Trump into Drumpf. Oliver could certainly (if he really cared enough) place some multimedia content on the site before filing his screen-shot, but technically he would need to have had the intent to do so at the time of filing the application. So, to truly avoid this sort of challenge, he will need to demonstrate through some evidence that as of a few weeks ago, Drumpf Industries (whatever that is) intended to build a true multimedia site.

So, will Oliver’s (I mean, Drumpf Industries’) mark ultimately make it through examination? It seems the Trademark Office (which will certainly be following this one closely) could make life pretty hard on the application if it wanted to. But, of course, would anyone even care at that point?

Peter J. Karol

October 21, 2015

Refugees, Migrants, and State Responsibility

Anyone who has followed the recent refugee crisis will notice the interchangeable use of the terms “migrant” and “refugee” to describe the people fleeing Syria, Iraq and North Africa, who are attempting to find safety and a better life in Europe. Depending upon your source of news, you might also hear the almost belligerent use of phrases and words like “economic migrant” and “opening the floodgates.”

It was Hannah Arendt who used the term “scum of the earth,” to describe not the refugees fleeing Nazi control during World War II, but the treatment they received as they metaphorically washed up on shores of neighboring countries. She was describing the phenomenon that transpires when one country or regime has designated some people as inferior, and how everyone else then views them that way — needy, dangerous, and likely to cause a run on resources.

In fact, it was this distaste of refugee flows and the problems that arose when other countries, including the United States, shut their doors on refugees fleeing persecution during World War II that led to the drafting and ratification of not just the 1951 Convention on the Status of Refugees, but the creation of the United Nations itself. The drafters’ goal set forth in the UN Charter, “to save succeeding generations from the scourge of war,” were as mindful of the refugee problem as they were the death and destruction that accompany interstate conflict. Today, of course, many of our refugee flows emanate from intrastate conflict, but the problem remains the same. If it is not safe to remain in your home, where can you go and who, if anyone, is legally obliged to take you in?

It is worth noting at the outset that the “refugee crisis” in Europe is not new. As early as the late 1990’s, people were departing Libya in rickety boats, attempting to make land in Europe. Prior to 2011, they came primarily from Sudan, Somalia, Eritrea, and occasionally Iraq. Their objectives, though, were the same — fleeing persecution, fleeing starvation, fleeing sexual violence, and searching for a better life. Many of these boats capsized, even in the early days before we began regularly hearing of it. In the summer of 2008, I was visiting a refugee center outside of Valletta, Malta when one of the refugees received a call from a sinking boat. His friend was hanging onto a tuna net in the middle of the ocean, their boat capsized. We were frantic to reach the navy or coast guard and ask to send out a boat for them, but there were no coordinates to give. When we reached the naval responders they told us that looking for this man would be like hunting for one grain of sand in the desert.

At least 25,000 people are known to have died in this manner since 2000. The number is undoubtedly vastly larger. As early as 1997, Italian naval authorities noted increasing reports of the foundering and shipwreck of boats departing from North Africa and Albania. Because in most instances the boats and the people were long since perished by the time authorities investigated (when they investigated), these began being referred to as “phantom migrant shipwrecks.” In the first nine months of 2014 alone, more than 3,000 people drowned, but now the world’s attention was beginning to focus on the tragic journey. For a brief time in 2014, several southern European countries banded together and developed Mare Nostrum, a “military-humanitarian mission” focused on plotting the course of refugees (work done by Frontex, the EU external border control agency established in 2005), and endeavoring to rescue people on foundering vessels. The operation lasted less than a year before it was ended through lack of political and economic will to keep it going in the face of pressure to return refugees, not rescue them and bring them to shore. It is estimated that 300,000 people have attempted the Mediterranean boat crossing in the first nine months of 2015 alone.

Although many or even most of those on the boats are legitimate refugees, people with a legitimate claim for asylum, those operating the boats are most certainly the worst sort of smugglers and human traffickers, profiting from the desperation of their passengers. These smugglers’ rates depend on their assumptions about the economic means of refugees based on their countries of origin. A sub-Saharan African might pay $900, while a Syrian might be charged $2500; these prices are much reduced from several years ago now that the “market is saturated.” The fee includes a grueling round of travel across the southern Libyan Desert, which some say they would rather die than repeat, before they are delivered to the coast. The boats that will carry them are packed with 100 — 300 people typically aboard. One single 100 — 200 mile run from the Libyan coast to Malta or the southernmost island of Italy might yield a smuggler 90 — 750,000 USD. Tunisian, Libyan, Italian, Greek, and Maltese fisherman have regularly encountered foundering boats and, as is required of them under various laws of the sea, many have assisted and brought the passengers to shore. Only to then themselves be arrested for migrant smuggling.

In 2003, the countries of the European Union adopted the Dublin Regulation. By virtue of this multilateral pact, the European country in which a potential asylum seeker first set foot had to agree to process his or her application — anyone seeking asylum in an EU country had to seek it in the country in which he first landed. This agreement put a tremendous amount of pressure on countries like Greece, Malta, and Italy, which initially hosted a large number of asylum seekers, most of whom wished to seek asylum in the EU, but who were stuck in limbo, many detained in prison-like camps, hoping to secure an asylum interview or some processing of an asylum application. It also put a tremendous strain on the admittedly sporadic ocean search and rescue operations in effect to try to prevent the multiplying deaths at sea with lack of clarity even as to whom was responsible for which waters.

A refugee is a person who has a well-founded fear of being persecuted due to his race, religion, nationality, political opinion, or membership in a particular social group. People can be formally and legally identified as refugees, usually by UNHCR or one of their partner organizations, and if they are lucky, be picked by a country willing to resettle them. These people arrive in their new host country as formal refugees, with documents that identify them legally as such, sometimes even UN passports called laissez-passer if they are effectively stateless. Under the terms of the host countries’ domestic legislation, based on recommendations made by UNCHR and the Refugee Convention, these refugees are often eligible for food, shelter, medical assistance, education and job training, if it is available. Presently, 80% of the world’s refugees are hosted in developing countries. Neither Lebanon nor Jordan are party to the Refugee Convention. Pakistan currently hosts the largest number of refugees (1.6 million).

Those who arrive at the border of a potential host country without the refugee designation are considered asylum seekers. Presently, Germany, Sweden, and France host the top number of asylum seekers, followed by the UK, Italy, Belgium, Hungary, Austria, the Netherlands, and Poland. The burden is on the asylum applicant to prove he has a well-founded fear of persecution due to one of the five categories. Those whose primary motivation is deemed to be “improving their lives” or the lives of their children are considered “economic migrants,” not entitled to asylum or the refugee designation. It is almost as if by electing not to remain in a developing or already overwhelmed potential host country, a refugee is presumed to be an economic migrant, unless he can prove otherwise.

This is why you so often hear the Syrians fleeing to Europe referred to as “migrants.” The implication is that they are not refugees because their primary motivation is not fleeing persecution, but rather seeking a better life. This is also why you hear people saying, “they could have stayed in the refugee camps in Turkey or Lebanon or Jordan; they just didn’t want to.” These people are arguing that they were “safe” from persecution when they hit the first host country; they only left those camps because they did not like them.

In order to examine this argument, it is important to understand the conditions for refugees in those camps, in most camps, really, most of which are not even “camps,” but actually people trying to find safety in urban settings, particularly those Syrians in Lebanon. To put these host countries in context consider the following: first, Turkey currently hosts almost 2 million refugees, Lebanon hosts over 1 million, and Jordan has more than 600,000. These three countries already hosted Iraqi refugees before the conflict in Syria even began. Now Iraq hosts 250,000 Syrian refugees. Secondly, at the time the conflict began, Syria also hosted thousands of Iraqi and Palestinian refugees and these people have also been displaced by the conflict. At a minimum, we can see that these “camps” are overcrowded, unsanitary, unsafe, and unwelcoming. They are riddled with human traffickers, child labor, organized crime networks, and others who would exploit the most displaced and vulnerable. Many refugees are unable to work, go to school, or have any real hope of a life for themselves or their children. Many state that their primary concern is lack of food.

This is why so many Syrians and Iraqis are seeking to enter Europe, first through North African routes, and more recently overland (or after reaching Albania) through Serbia and Hungary. Other factors are also in play. In 2012, Israel completed its border fence on its border with Egypt. Eritreans and Somalis who had previously been able to attempt to flee heading east, now turned west, adding to the flow of people attempting to depart North Africa by boat, headed for Europe. UNHCR reported the forced displacement of almost 6 million in the first six months of 2013 alone, about half Afghans, Somalis, and Syrians attempting to escape violence and “extraordinary hardship.” In August 2013, UNHCR estimated that there were 110,000 Syrian refugees in Libya in 2013. By September 2013, the estimate was 250–300,000 Syrians in Egypt, and Egypt was forcibly returning them to Syria, Lebanon, Gaza and Turkey. Pressure points have been building for some time. By 2013, Europe hosted 79% of the total number of asylum seekers in the world, with the US and Canada together accounting for 16%.

Under the UNCHR guidelines, there are three “durable solutions” for refugees: resettlement, repatriation and local integration. Given the saturation point in Jordan, Lebanon and Turkey, refugees are effectively or legally unable to integrate locally. This leaves two solutions — returning home (not an option) or resettlement to a third country. Unless or until a third country identifies a refugee and agrees to take him, resettlement is only a hypothetical. Unless the refugee can get to that country himself, apply for asylum, and obtain his refugee designation. This is why Syrians are now flooding into Europe.

The country claiming to take the largest share of refugees annually is the United States. There are a few problems with this claim. First, the cap set by Congress is the number typically cited. Not cited is the number that actually arrive. Secondly, several other countries take a much larger share per capita. Third, when a country publicly agrees to accept one refugee flow, operations often begin behind the scenes to “hurry along and deport” asylum seekers already in the country who are perceived to have less “grantable” claims. One of the goals of the Refugee Convention is to share the responsibility of meeting the needs of refugees among host countries. By 2014, UNHCR estimated more than 50 million refugees worldwide. Countries that might be expected to absorb some Syrian refugees, like Saudi Arabia, UAE, Kuwait, and Qatar, have taken none. While they have been silent as to why this is so, speculation centers on the fears of the leadership of these countries that the relatively well-educated and cosmopolitan Syrians would shake up the status quo too much for the these nations. The total number of refugees that accepting countries agree to take is less than 1% of the total number of refugees in the world. The total number that countries agree to take is often not a real number. For a variety of reasons (national security concerns, inefficiency, too long of a waiting time) countries routinely take far fewer than the total number they claim to be willing to accept. The United States, for instance, regularly falls short of its cap (typically set at between 50–70 thousand per year), sometimes by as many as 20–25,000 people.

One new problem with the conflation of refugees fleeing intrastate conflict and the “war on terror” is that we are looking at millions of effectively stateless people. In a country like Syria where fear of Assad has now shifted to fear of ISIS, speculation about whether a Syrian refugee might have provided material support to a terrorist group rises, and the likelihood that any will be safe to return home decreases. The more politicians speculate about the likelihood of Syrian refugees being terrorists or their supporters, the less likely it becomes that any country will accept them. There is no evidentiary requirement that a government prove why it thinks a particular person might be a terrorist sympathizer and therein not refugee material. A mere unfounded suspicion is sufficient. When one country speculates about a particular individual, no one will take that individual thereafter. The speculation and fear itself renders a large group of people effectively stateless. One need only remember the Uighurs held in Guantanamo by the United States to understand this dynamic.

It is worth noting a few more things: the refugees flooding into Europe now are not all Syrian, although the tragic plight of Syrians fleeing their decimated country provides the face for the current crisis. Furthermore, the United States has been faced with a similar crisis over the past few years. In the summer of 2014, the story of the thousands of women and children fleeing extreme violence in Central America and being detained on arrival in the United States was regularly in the news cycle. These women and children have not gone anywhere (except for those who have been deported), nor have they stopped fleeing, or been granted asylum, yet their “crisis” has been overtaken even in US news outlets by the one in Europe. These women and children, too, are being denied asylum and deported, cast as “migrants,” not refugees. The violence they are fleeing, they are told, does not fit under any of the five categories — a contestable claim, as many similar asylum cases have been won arguing that the targeting by gangs who cannot be controlled by their home government constitutes a particular social group.

The current “crisis” is a crisis because sovereign nations fear that the floodgates will open, that they will be unable to control their borders, that each refugee will cost the host government (an estimated $14,000 in the short term, to be precise, although a long term economic boon), or, inevitably, that they might be a security risk. The fact remains, though, that these were the same fears articulated during World War II, and yet we still came together to form the United Nations and ratify the Refugee Convention in order to prevent the scourge of future refugees flows depleting the resources of a few countries. And, it bears remembering, because we knew it was the right thing to do and we felt shame for having done it so badly.

The UN High Commissioner for Refugees (UNHCR) is mandated by the United Nations to lead and coordinate international action for the worldwide protection of refugees and the resolution of refugee problems. Its primary purpose is to safeguard the rights and well-being of refugees, including by working with states to ensure everyone can access asylum, seek third country resettlement, or return voluntarily to their home state (the three “durable solutions”). UNHCR is also charged with enforcing (or encouraging; they have no enforcement authority) the principle of non-refoulement, whereby states are prohibited from forcing back or returning anyone who fears persecution in the home state. Non-Refoulement is jus cogens, binding even states not party to the Refugee Convention. The organization is donor funded, and its largest donors have consistently been member states of Western Europe and the European Union itself, along with Japan and the United States. Like most UN agencies, UNHCR is only permitted to operate in a country where it has permission from the host state. Thus, it begins a fine dance of attempting to lobby the state hosting a refugee population to do so according to the requirements of the Refugee Convention, without losing its mandate to operate in that state by acting too forcefully. UNHCR is currently operating in Libya “cautiously,” as it has no formal memo of understanding. Libya remains the transit sending state for most of the migrants heading to Europe through North Africa. The operating costs for UNHCR in Libya for 2012 alone amount to more than 31 million USD, although only 12.7 million USD was actually available.

At present, European countries are struggling to come to an agreement with one another on the share of refugees each will take. At the same time, anticipating they will take some, several are ridding themselves of lingering asylum seekers from other parts of the world to make way. More than half a million migrants have arrived in Germany this year, for example. Only about half of those who have already applied for asylum are from Syria or Iraq. The rest are from struggling European countries like Albania and Kosovo. Europe is changing its laws to try to stem the flow of so-called “economic migrants.” As of August, anyone who makes what is deemed to be a “baseless” or “frivolous” asylum claim can be barred from re-entering any of the European Union’s passport-free Schengen area, for up to five years. Germany and several other countries have also begun instituting random passport and document checks within the Schengen area, effectively altering the notion of the EU as a free travel zone. Six EU member states are outside of the Schengen zone (Bulgaria, Croatia, Cyprus, Ireland, Romania, and the UK) and three non-EU states are within the Schengen zone (Norway, Iceland, and Switzerland). Bulgaria, Croatia, Cyprus, and Romania have undertaken an obligation to enter the Schengen zone as part of their EU member status. Schengen states are only permitted to institute passport checks as a temporary measure and this has begun in earnest. Since last year, Austria, a country firmly within the Schengen open border zone, has stopped and denied entry to at least 2100 non-EU “foreigners” transiting from Italy.

The problem with “getting rid of” some applicants to make way for others is that many assumptions are then made about the viability of an asylum claim based not on individual circumstances, but on one’s country of origin. A presumption is set against those from Kosovo or Serbia, for example, and (potentially) favors someone from Syria. This is not the way the Refugee Convention is designed to operate. The notion of the Refugee Convention is that anyone with a well-founded, credible fear should be able to make that claim, obliging local authorities to protect anyone successful in doing so.

Hungary has erected a fence on its border with Serbia. Bulgaria is planning a fence on its border with Turkey and Greece has already erected one. Meanwhile, the current US presidential candidates are outdoing one another with the length and strength of their proposed border fences. Malta and Italy have attempted to push back people trying to land on their coasts, even when they were aboard ships that had rescued them after theirs sank. This should call to mind shiploads of Jewish European children and refugees attempting to land in the United States during World War II and being denied entry. Or the shiploads of Europeans attempting to flee violence in Europe during World War II by fleeing to North Africa. When we take the long view, it becomes easier to see why aiding refugees now is important for all of our sakes and all of our safety. When we operate out of fear, we are taking the short view.

Presently, we are operating out of fear. Certainly the refugees fleeing persecution and the migrants seeking a better life are, but also, and maybe most importantly, the nation-states into which these refugees and migrants hope to make their way are also. Instead of operating out of fear, we need to honor the agreements we committed to in creating the United Nations and ratifying the Refugee Convention. We need to remember the spirit in which we committed to these principles, and then we need to carry out these principles and protect refugees.

Dina Francesca Haynes

September 14, 2015

Do Elite Universities Abuse their Tax Subsidies?

A recent op-ed in the New York Times with the provocative title “Stop Universities from Hoarding Money” once again raises the issue of university endowments. It focuses in large part on the extraordinary amounts elite universities either “hoard” or spend on fees to investment advisors and hedge funds in contrast to the much smaller sums spent on “tuition assistance, fellowships and prizes,” those things seen as the university’s true mission. The author, a tax professor, suggests that universities with endowments in excess of $100 million should be required to expend at least eight percent of their endowments each year. This is not a new proposal; similar proposals arise periodically. Of course entities with such large sums (Harvard’s endowment is reported to exceed $32.5 billion) are formidable players in politics so these calls generally go unheeded.

To understand why we all have an interest in these matters one must know a thing or two about federal tax law as it applies to charitable organizations. Universities are classified as “public charities” which status means that they can generally earn and accumulate money exempt from federal income tax. Policy experts sometimes refer to these benefits as a taxpayer “subsidy,” to the university, because exempting the university from tax is the same as taxing it like other entities and then returning to it its tax payments rather than using them for other public benefit. Imagine the potential tax liability of an institution like Harvard if its receipts (tuition, income and gains on investments) were subject to the income tax. That figure would reach at least tens of millions of dollars annually. The idea behind the tax exemption, of course, is that it allows universities to provide more research, knowledge and education—all seen as public goods. And tax-exemption is not the only federal tax subsidy from which universities benefit. Donors’ taxes are reduced when they make contributions to universities through generous tax deductions. Like exempting universities from the income tax, subsidizing donations to those institutions with taxpayer dollars increases the availability of the public goods produced by universities.

By implementing the foregoing tax benefits, Congress apparently assumed that we (the taxpayers) are getting what we pay for. But is that true as respects university endowments? Why does Harvard have $32.5 billion and what is it doing with all that money? Why did Yale pay $480 million to private equity fund managers compared with $170 million for tuition assistance, fellowships and prizes? Should these wealthy elite universities be spending more of their endowments on their core mission? That question has been considered by a couple of scholars. Unfortunately, the results seem to suggest that when it comes to at least some university endowments, we are not, in fact, getting what we pay for.

It seems to be generally accepted that a university should spend no more of its endowment than the endowment generates in income and (perhaps) capital appreciation. Many spend income only and allow capital appreciation to accrue, which will generally allow an endowment to grow much larger over time. These practices are justified on the basis of “intergenerational equity.” Maintaining the endowment’s value over time means that it can continue to support the university’s activities indefinitely. But a 1990 study found that the basis for the intergenerational equity argument had little merit. And the fact remains that elite university endowments are growing at substantial rates.

A more recent study, undertaken in 2010 sought to determine why universities, in the immediate aftermath of the 2008 financial crisis, slashed operating budgets, laid off employees, froze salaries, and delayed expansion projects, among other things, rather than dipping into multibillion dollar endowments. Reasons given by the universities were that pre-crisis spending was unsustainable, the endowments were legally restricted as to use, and that the investments were generally illiquid and difficult to access. This study found each of these reasons to be unpersuasive. The author concluded that the endowments served primarily as status symbols, and that universities would reach for any other source of funding to avoid diminishing their endowments.

There is certainly precedent for requiring tax-exempt organizations to expend a minimum percentage of their assets. Private foundations are different from public charities in that rather than being supported by a wide range of public contributions they might be funded only by one family or even one individual. Because private foundations are not “publicly-supported” federal tax statutes require them to expend at least five percent of their net investment assets on charitable endeavors each year. Failure to comply subjects them to a potentially crippling penalty tax. Under the same principle, universities should be using their tax-subsidized endowments to support their core charitable missions. Those who don’t should be penalized.

September 1, 2015

Tribute to a Mentor

On Monday, August 31, Gregory Hobbs will step down as Associate Justice of the Colorado Supreme Court, a position he has held for the past nineteen years. I was extremely fortunate to serve as a law clerk for Justice Hobbs for the 2000–2001 term. On the occasion of his retirement from the bench, I wanted to add my voice to the chorus of praise for this extraordinary public servant.

Justice Hobbs was (is!) a water law expert, a historian, a poet, a keen cultural observer, and a man with his finger on the pulse of the communities he served. More than once during my clerkship, he reminded me that the Court’s authority came with profound responsibility: each decision directly affected lives and livelihoods. There was no place for judicial (or judicial clerk) egotism or haughtiness. At a time when the news cycle and daytime television converged to create a culture celebrating sassy, snarky judges, Justice Hobbs was always a jurist of remarkable care and humility.

But a commitment to judicial humility still left plenty of room for the Justice to make his individual mark. “There is a second story in the footnotes,” he once said to me during my clerkship. He was talking about his majority opinion in Board of County Commissioners v. Vail Associates, Inc., an opus of an opinion that concerned a head-spinning series of exemptions to the general rule allowing counties to impose property taxes. The opinion was a careful parsing of case law and statutory and constitutional text, but it was also a fascinating jaunt into Colorado’s history. There was a second story in the footnotes, taking readers on a ride from 1877 to the turn of the twenty-first century, and folding in references to mining, farming, ranching, and skiing—the things that make Colorado uniquely Colorado.

I think of that opinion whenever I think of Justice Hobbs, because he too is uniquely Colorado, and because his influence on me and my career can, in a sense, be found in the footnotes as well. Well after my clerkship ended, I have come to regard him as a mentor and an example. It comes in the way he conducts himself as a father, grandfather, husband, friend, boss, and jurist. It comes in the humility he has always shown for his judicial position, and the constant recognition that doing what is right by the law is not always easy. It comes in his love of the State of Colorado, its people, and its institutions. It comes in his ability to stand by his principles while remaining willing to reevaluate his positions. It is a rare judge—indeed, a rare person—who can approach his job with such pleasure, dignity and candor day in and day out. The interaction between Justice Hobbs and his clerks, and among the Justices themselves, gave me a deep appreciation for how appellate decisionmaking should work. Those moments still influence me as a law professor today: I spend most of my time teaching, thinking, and writing about how judges decide cases and how judicial behavior influences others in the legal system.

So the text of my time clerking may read, “Law Clerk, Hon. Gregory J. Hobbs, Jr., Colorado Supreme Court, 2000–2001,” but the real story is in the footnotes. The people of Colorado have been blessed to have Justice Hobbs on the Court for almost 20 years. I have been blessed to know him for nearly fifteen years, where his example has been a constant influence. Thank you, GJH.

Jordan M. Singer

Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.”

The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.

Had Kennedy embraced a traditional equal protection analysis—as did the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, the first decision to overturn a same-sex marriage ban—the force of the Chief Justice’s predictions about plural marriage likely would have been blunted. To understand why, we must remember that, despite the fact that it is fundamental, unlike nearly all other individual constitutional rights—both explicit and implicit—the right to marry does not exist unless the state provides for it. In other words, the Constitution does not compel states to offer their citizens the opportunity to enter into the legal relationship known as marriage. But if a state chooses to offer its citizens that opportunity, it cannot discriminate against parties who seek to enter into marriage absent some legitimate basis for doing so.

As numerous federal and state courts have concluded, there is no legitimate basis for excluding same-sex couples from marriage. Though as a historical matter such couples were not eligible for marriage, that is not a valid argument for continuing to prohibit them from marrying when they otherwise satisfy the structural requirements for eligibility. Those requirements contemplate two parties who have consented to be married in the eyes of the law, so that they may both enjoy the particular benefits that this binary legal relationship provides and undertake the particular responsibilities it assigns. Nothing about the inherent nature of those benefits and responsibilities disables same-sex couples from entering into marriage.

The point here is that every state has limited marriage to a union of two—and only two—parties. That binary relationship forms the structural core of the institution of marriage. For a court to hold same-sex couples equally eligible to enter into that relationship no more changed the definition of marriage than would an order foreclosing a state from declining to provide a particular opportunity to otherwise qualified members of the opposite sex. See United States v. Virginia. On the other hand, for a court to order that a state must extend the opportunity to enter into marriage to any combination of parties who desire it would take that court well beyond the judicial role contemplated by current equal protection doctrine.

To illustrate, consider this hypothetical situation: suppose in response to Obergefell the state of Pennsyltucky decided to get out of the marriage business altogether—in other words, suppose the state decided not to offer its citizens the opportunity to enter into any form of civil marriage. Could a court order the state to create that legal relationship, with all of the public and administrative costs associated with managing it? No more than a court could order a state to provide funds to allow aspiring but impoverished political candidates to run for office. It’s equally unlikely a court would order a state that currently offers its citizens the opportunity to enter into binary marriage—which is to say, every state under current law—to admit any number of parties to that relationship. Unlike the relief requested by the plaintiffs in Obergefell, such an order would in fact change the structural definition of marriage.

At bottom, multiple-party relationships simply aren’t the same as two-party relationships. The binary relationship—and not the genders of the parties to it—lies at the heart of marriage as the states have defined it today. Plural marriage may come, but it will be the result of legislative rather than judicial action.

Lawrence Friedman

August 5, 2015

Recent Supreme Court Term: The Supreme Court Openly Challenges Its Own Legacy

One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment.

The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”

As a tool of partisan accountability, the proposal shouldn’t work. Retention elections have been used at the state level for 75 years, and only in very rare instances—California in 1986, Iowa in 2010—have multiple justices on a single court lost retention elections in the wake of a politically controversial ruling. Citizen anger over controversial decisions generally does not translate into judges being kicked off the bench. Put another way, retention voters are assessing something more than mere case outcomes when determining whether to keep a judge in office.

This may seem surprising, given that politicians routinely try to rally their bases in reaction to Supreme Court decisions they disfavor. (Consider the left’s reaction to Citizens United or Heller, or the right’s reaction to Sebelius or Obergefell.) But ordinary voters don’t think like politicians. As I have documented here and here, to everyday citizens, a judge’s perceived commitment to a fair legal process is far more important than specific case outcomes. Voters will forgive a judge with whose rulings they disagree as long as those rulings appear to have been reached fairly and with respect for the court’s (often circumscribed) institutional role. Voters are less forgiving, however, when a judge appears to have intruded into the domain of the legislature, acted obnoxiously, or reached a decision that lacks a solid legal grounding.

Senator Cruz is a smart man, and he must know that voters assess judges differently than they do legislators or executives. So I doubt he is using retention merely as a conduit for channeling partisan anger. Quite the opposite: he appears to be counting on voters to assess the Justices on their commitment to procedural fairness and institutional humility, and to find that commitment lacking.

Unfortunately, in this regard the Supreme Court has not helped its own cause. The series of befuddling opinions in Obergefell v. Hodges nicely illustrates the problem. Justice Kennedy’s majority opinion on same-sex marriage was laden with soaring, poetic rhetoric about the profundity of marriage and the entitlement of all people to “equal dignity in the eyes of the law.” One is apt to agree with these sentiments as a matter of policy or even morality. But a constitutional exegesis demands something more. The Obergefell majority never cleanly and clearly explained why it was the province of the Supreme Court to accomplish what Congress and state legislatures might have (eventually) done themselves. Indeed, Obergefell was arguably far less grounded in the constitutional text than either of the equivalent efforts on same-sex marriage offered by the Iowa Supreme Court and Massachusetts Supreme Judicial Court years earlier. In doing so, the majority opened the door to criticisms that the Court had overstepped its institutional bounds.

The dissenting opinions subsequently pulled that door right off its hinges. The Chief Justice lamented, “The majority’s decision is an act of will, not legal judgment…. Just who do we think we are?” He went on: “Five lawyers have closed the debate and enacted their own view of marriage as a matter of constitutional law.” Justice Scalia went further, charging that the majority opinion “lack[ed] even a thin veneer of law” and ruling a “system of government that makes the People subordinate to a committee of nine unelected lawyers.” Justice Alito picked up the same theme, warning that the Constitution forbids “five unelected Justices from imposing their personal vision of liberty upon the American people.” Only Justice Thomas constrained his dissenting opinion to a legalist discussion about constitutional meaning.

As a debate over national policy or constitutional philosophy, the five Obergefell opinions make fascinating and important reading. As a vehicle for increasing, or even sustaining, the institutional legitimacy of the court, however, they are collectively a train wreck. Anyone who reads the majority opinion and suspects the court of moderately overstepping its institutional role will, upon reading the dissents, find a far more grievous critique. The Court, we are told, undermined the core of American democracy through unelected lawyers and (in Justice Scalia’s inimitable words) “judicial Putsch.” Even if one agrees with the outcome of the case (and I count myself among them), the internecine squabbling over institutional overreach is deeply unsettling. The majority could have worked harder to formulate an opinion that sounded less like public policy, and the dissenters could have made their points with far more responsible rhetorical flourish. No wonder Senator Cruz felt that the public might be ready for retention elections.

Thanks to the court’s self-flagellation, the Cruz proposal cannot be treated as mere pandering to his right-leaning base. Public respect for the judiciary is near a 15-year low, and allegations by the Justices that their own colleagues do not respect the rule of law cannot help. Those who want to see the Court regain its lost institutional legitimacy can only hope that the Justices recognize the damage that comes from their public dysfunction, and collectively work to repair it.

Jordan M. Singer

Recent Supreme Court Term: King v. Burwell

“The issue in this case is whether the Act’s [the Affordable Care Act] tax credits are available in States that have a Federal Exchange rather than a State Exchange.” King v. Burwell, 576 U.S. __ (2015) (p. 5). The Affordable Care Act (ACA) requires each state to create its own health insurance Exchange, however, if a state refuses to do so, then the Secretary of Health and Human Services (HHS) is authorized to “establish and operate such Exchange within the State.” Sec. 18041(c)(1).” (p. 5). Only sixteen States and the District of Columbia created their own Exchanges, while thirty-four States utilize the federal Exchange administered by the Department of Health and Human Services. (p. 6).

The tax credits, which are authorized by IRC sec. 36B, are allowed to “applicable taxpayers” who obtain health insurance through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care act….” (p. 5). The IRS addressed the availability of tax credits to individuals acquiring health insurance through an HHS Exchange by adopting the definition of “Exchange” as used in an HHS regulation, 45 CFR sec. 155.20, which provided that taxpayers are eligible for a tax credit if they are enrolled in an Exchange which serves the individual market, “regardless of whether the Exchange is established and operated by a State… or by HHS….” (p. 6).

In prior proceedings, the U.S. District Court for the Eastern District of Virginia granted the Defendants’ Motion to Dismiss, 997 F.Supp.2d 415 (2014), and the District Court judgment was affirmed by the U.S. Court of Appeals for the 4th Circuit, 759 F.3d 358 (2014).

Justice Roberts, who was joined by Justices Kennedy, Ginsberg, Breyer, Sotomayor, and Kagan, wrote the majority opinion, and held that tax credits for health insurance under IRC sec. 36B applied to individuals acquiring coverage on federal health insurance exchanges under the Affordable Care Act (ACA), even though sec. 36B states that the credits apply to insurance plans that are enrolled in through “an Exchange established by the State under [42 U.S.C. sec. 18031].” Justice Roberts’ reasoning was based on the ambiguity reflected in sec. 36B when it was interpreted in connection with other provisions of the ACA, and the manner in which those ambiguities were either consistent or inconsistent with Congress’ intent that the ACA expand health care coverage, and lower the cost of health insurance as a means of facilitating that expansion of coverage. The Congressional intent to expand health insurance coverage through the ACA would have been undermined if the sec. 36B tax credits were not applicable to individuals enrolled in health insurance plans through the federal exchanges.

Justice Roberts discussed the history of health reform in the United States and how states which instituted guaranteed issue, which required insurers to cover persons regardless of health status, and community rating, which restricted insurers from taking health status into account in setting premiums, ultimately led to “adverse selection,” which occurred when a person would only seek insurance once they became sick or in need of health care coverage. Because insurers were required to cover persons regardless of health status and could not take health status into account in setting premiums for specific insureds, they were forced to raise rates for all insureds in order to account for the higher health costs, increasing the cost of coverage and reducing the numbers of individuals who could afford coverage. Justice Roberts wrote that “This led to an economic “death spiral.” As premiums rose higher and higher, and the number of people buying insurance sank lower and lower, insurers began to leave the market entirely.” (p. 2).

Congress, relying on the Massachusetts health reform effort in 2006, included in the ACA a guaranteed issue and community rating component, but also included an individual mandate requiring most individuals to maintain health insurance coverage (either employer-provided, private coverage, or government-subsidized coverage), or pay a penalty. For individuals whose household income is between 100% and 400% of the federal poverty level income amount, they are eligible for a tax credit pursuant to IRC sec. 36B. The tax credit lowers the cost of health insurance for working class and middle class taxpayers, while the mandate brings into the health insurance pool more young and healthy persons (who would otherwise not obtain coverage) whose premiums subsidize the cost of coverage for sick and older persons under the ACA. ( p.4).

Justice Roberts, in discussing Congress’ awareness of the necessity of the individual mandate and the tax credit to the reform effort, writes: “These three reforms are closely intertwined. As noted, Congress found that the guaranteed issue and community rating requirements would not work without the coverage requirement. Sec. 18091(2)(I). And the coverage requirement would not work without the tax credits. “The reason is that, without the tax credits, the cost of buying insurance would exceed eight percent of income for a large number of individuals, which would exempt them from the coverage requirement. Given the relationship between these three reforms, the Act provided that they should take effect on the same day—January 1, 2014….” (p. 5).

Justice Roberts determined that due to the “economic and political significance” of the tax credits and their central role in the statutory scheme Congress created under the ACA, “It is especially unlikely that Congress would have delegated” to the IRS the authority to resolve any ambiguities with the tax credit under its regulatory authority without expressly doing so. He concludes that it is the Court’s, and not the IRS’s duty to determine the correct interpretation of sec. 36B. (p 8).

Justice Roberts’ analysis first finds that the authority granted to the Secretary of HHS to “establish and operate such Exchange within the State,” pursuant to sec. 18041(c)(1) of the ACA, shows that the HHS exchanges and the state Exchanges under sec. 18031 “are equivalent” by virtue of HHS establishing “such Exchange” under 18041, or, that HHS is to establish “the same Exchange that the State was directed to establish under Section 18031.” (p. 9–10).

Justice Roberts then analyzes sec. 36B in context with other provisions of the ACA (sec. 18032 defining “qualified individual” and sec. 300gg-91(d)(21) defining “Exchange”) and determines that a federal Exchange may be considered as one “established by the State” in order for the federal Exchange to function consistently with those other provisions within the statutory scheme of the ACA, resulting in ambiguity in the interpretation of sec. 36B within the context of the ACA’s statutory scheme, as compared to a literal interpretation of “established by the State” under sec. 36B. (p. 10–13).

Applying the principle of statutory interpretation that “the words of a statute must be read in their context with a view to their place in the overall statutory scheme,” Justice Roberts concludes that a strict interpretation of sec. 36B must be rejected because “it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.” (p. 9, 15).

Justice Roberts holds that the sec. 36B tax credits are allowed for health insurance purchased on “any Exchange created under the Act.”

Justice Scalia wrote the dissenting opinion and was joined by Justices Thomas and Alito. Justice Scalia applies a literal interpretation of sec. 36B and concludes that the tax credits only apply to Exchanges established by the States, therefore, no tax credits are allowed for health insurance purchased on a federal Exchange. (p. 2).

In contrast to Justice Roberts’ broad-based ambiguity analysis, which relies on his interpretation of sec. 36B in the context of the purpose and design of the ACA and his conclusion that a literal interpretation of the statute would conflict with the ACA’s design and purpose, Justice Scalia focuses solely on the language of the statute itself in determining whether there is any ambiguity, and finding no ambiguity in the statutory language, concludes that there is no reason to consider the ACA’s purpose and design for the purpose of interpreting sec. 36B. (p. 13).

Justice Scalia suggests that the design of the ACA was intended to incentivize states to create and operate their own exchanges and that limiting the 36B tax credits to health insurance plans purchased on a state exchange was one means of encouraging states to create their own exchanges. (p. 15-16). In light of that suggestion, he finds that interpreting sec. 36B to allow tax credits for health insurance purchased on a federal Exchange eliminates any need on the part of the state to create its own Exchange since the tax credit will be available on a federal Exchange. (p. 16).

Justice Scalia also states that the majority, rather than interpreting sec. 36B is actually rewriting the statute, which is a duty belonging to Congress.


This case, at its most basic level, is a statutory interpretation dispute. The lower courts which decided this case came to the same judgment as the Supreme Court, but each with slightly different reasoning.

Justice Roberts’ opinion applies a broad and policy-based analysis of both the legislative intent and design of the ACA in order to determine not only how the health insurance Exchanges were intended to operate, but also as a means of determining which interpretation of sec. 36B was most consistent with Congress’ purpose and design for the ACA.

Justice Scalia applied a more limited analysis, focusing solely on the statutory language of sec. 36B, and finding no ambiguity in the statute itself, determined that there was no need to analyze the purpose and the design of the ACA in interpreting the statutory language.

Justice Scalia’s criticism that the Court is rewriting the statute, not interpreting it, is very interesting. I think that your conclusion as to whether the Court is interpreting sec. 36B, or rewriting it, depends upon whether you agree with Justice Roberts’ or Justice Scalia’s approach in determining and analyzing statutory ambiguity. In light of the complex design and interlocking provisions of the ACA, and the need to analyze sec. 36B in the context of those aspects of the law in order to fully comprehend how it fit within the statutory scheme, Justice Roberts, as well as the lower courts, decided the case correctly.

Wilton B. Hyman

July 24, 2015

Recent Supreme Court Term: Obergefell v. Hodges: Equality and Constitutional Interpretation

On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges. The Court held unconstitutional, by a 5-4 vote, state laws that limit marriage to heterosexual couples. According to the Court, these limits violate both the Due Process and Equal Protection clauses of the 14th Amendment.

Justice Kennedy’s opinion for the Court focuses on the crucial role that marriage, as a component of the liberty protected by the Due Process clause, plays both in individuals’ lives and in structuring society.  Denying same sex-couples the opportunity to marry not only affects what type of society we live in, but also impoverishes the lives of a particular group of people in society. According to the Court, individuals define themselves through marriage. In addition, through marriage they access other “freedoms, such as expression, intimacy, and spirituality.” (p. 13) Marriage is also a means for individuals to achieve the “highest ideals of love, fidelity, devotion, sacrifice, and family.” (p. 28) Furthermore, children in same-sex families are injured by having to endure the stigma of familial inferiority as a result of the non-recognition of their parents’ marriages. (p. 15)

Each of the four dissents objects to the majority’s conclusion that there is a violation of the Due Process clause. The dissenting justices argue that Justice Kennedy’s reasons for finding that same-sex couples have a protected fundamental right to marry are matters of policy and that the state legislatures, not the U.S. Supreme Court, should decide what policies are best for the people and society overall. The Chief Justice’s dissent, for example, does not deny that there is a fundamental right to marry; instead the Chief Justice argues that this fundamental right applies only to heterosexual couples because “the core definition of marriage … [is]the union of a man and a woman.” (pp. 8 and 16.) This “core” meaning of the fundamental right of marriage is “deeply rooted in this Nation’s history and tradition.” Constraints on the definition of constitutionally protected rights keep the courts from legislating.

The majority and the dissents all recognize that the terms “liberty” and “marriage” must be interpreted. Unconstrained interpretation is problematic because it is difficult to distinguish from the act of legislating. Nonetheless, courts must interpret the words of a text, including a constitution. To be legitimate within our system, judicial interpretations must be bounded by an accepted and acceptable structure. The Court and the dissents disagree on what this structure is.

The Chief Justice’s dissent searches for a “core” meaning of marriage as a means of avoiding excessive interpretation. However, as the Court notes, the institution of marriage has changed dramatically over time. Different “core” meanings can be identified at different moments in time, space, and society. As Justice Kennedy wrote in his opinion for the Court, the doctrine of coverture was critical to the meaning of marriage in the early 19th century. At the time, a married woman’s husband could have determined where she would live, whether she could enter any particular contract, and how to employ any assets she may have owned upon marriage. He could also decide whether to force sexual relations on her and under what circumstances to discipline her physically or otherwise. In short, the central feature of her marriage might have been her subordination to her husband, not the fact that he was sexually male. The Chief Justice’s definition of marriage as based on heterosexuality is a choice among many central definitions of marriage.

The Court’s definition of marriage relies on a different set of concepts to constrain its interpretation: individual autonomy, intimacy and expression; the fundamental role that marriage plays in promoting child development and in structuring society; and the importance of equality as also articulated in the 14th Amendment.

For many decades, equality has had a critical function in identifying the proper role for courts in interpreting the constitutionality of majoritarian legislation. In our democratic system the courts protect minorities from oppression by the majority. (p. 24) See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) As the Court’s opinion notes, the ideas behind the Equal Protection clause reinforce the liberties protected by Due Process; restricting marriage to heterosexuals would have the effect of “diminish[ing] the personhood” of members of same-sex couples. (p. 19) Similarly, in U.S. v. Windsor, the Court highlighted the humiliation and financial harm to children in same-sex families when their parents’ marriages are not recognized by the federal government. This role of protecting minorities against harm done by the majority has been central to the role of the Court.

Since they cannot avoid interpretation, courts must identify the principles to guide their interpretations. In Obergefell, the Court chose protection of the members of a minority group against the demeaning life the legislative majority would have allowed them, a life determined by 19th century understandings of marriage.

The process of identifying the parameters for constitutional interpretation is one of the most important functions of courts and lawyers. The fact that it is subject to vigorous debate and is likely to continue to be so is healthy for our democracy.

Judith G. Greenberg

Recent Supreme Court Term: Zivotofsky v. Kerry

In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches.

Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.

Enter Congress, which in 2002 passed Section 214 of the Foreign Relations Authorization Act titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” As this title suggests, Section 214 directed the Secretary of State to register the place of birth as Israel on registration of birth documents, certification of nationality, and passports for any U.S. citizen born in Jerusalem upon the request of the citizen or the citizen’s legal guardian. Section 214 was clearly intended to countermand the directives of the executive with respect to citizens born in Jerusalem.

The Court framed the clear conflict between the President and Congress in broad terms: 1. Whether the President has the exclusive power to grant formal recognition to a foreign sovereign? 2. If he has that power, can Congress command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition? In an opinion by Justice Kennedy the Court answered yes to the first question and no to the second.

The Court began its analysis by referring to Justice Jackson’s taxonomy in Youngstown Sheet and Tube Co. v. Sawyer, noting that this is a case where the President’s power is at its “lowest ebb” because he is acting in direct contravention of Congress, and thus he can rely solely on the powers the Constitution grants to him alone. However, the Constitution is silent as to whether or which branch has exclusive authority to recognize another sovereign. In fact, the Constitution does not mention the term “recognition” at all.

Unable to rely on the text, Justice Kennedy opts for a structural and, ultimately, a pragmatic approach to answer these questions. He notes that the Reception Clause in Article II directs the President to receive ambassadors and other public ministers. According to Justice Kennedy, that sounds a lot like recognition authority. Justice Kennedy goes on to list a number of other foreign affairs powers the Constitution vests in the President, such as making treaties and appointing ambassadors and other public ministers. Even though these treaty-making and appointments powers require senatorial consent, it is enough for Justice Kennedy that each is dependent on Presidential power. It is the President who must initiate the process. From this arguably thin reed, Justice Kennedy concludes that the President has the power to grant formal recognition to a foreign sovereign.

Justice Kennedy’s pragmatism is in full view as he goes on to address the second question, whether Congress can command the President and his Secretary of State to contradict his earlier recognition. Here the Court answers no; the President’s power is exclusive. This, according to the Court, is for the simple and obvious reason that the Nation must speak with one voice on the matter of recognizing a foreign sovereign. If the President is to be effective in negotiations over a formal recognition determination, it must be evident that he speaks for the Nation.

The conservative wing of the Court dissented in Zivotofsky. In the most scathing criticism, Justice Scalia questions whether the President’s recognition power is exclusive, but more to the point, he contends Section 214 has nothing to do with recognition of foreign sovereigns. Section 214, Justice Scalia argues, performs the much more prosaic function of allowing citizens some say in what their Government says about another country’s boarders in citizenship documents. Because citizenship documents are matters within Congress’s control, Congress has the authority to direct what those documents say.

It remains to be seen if this case will have longer-term impacts beyond its rather narrow facts. However, because the Court does not wade into this area very often, it is likely that courts, advocates, and commentators will turn to this case in support of various arguments over presidential and congressional authority. Some particular points of note are that that in this case the President argued for a much broader grant of authority. Citing to the 1936 case United States v. Curtiss-Wright, the Secretary of State contended that the President has exclusive authority to conduct diplomatic relations along with the “bulk of foreign-affairs powers.” The Court declined to read Curtiss-Wright so broadly, suggesting that too oft-cited language from that case that the President is the “sole organ of the federal government in the field of international affairs” is dicta.

Also interesting is that a majority of the Court did find express and exclusive executive power absent any clear language in the Constitution. The means by which the Court found this power in the constitutional structure and the Court’s pragmatic view of how a government must function is likely to provide a road-map for future foreign affairs and national security cases where the demarcation between the President’s and Congress’s power is vague.

Finally, in reaching its decision the Court noted that the President needs exclusive recognition power in order to be effective. If the Court believes that effectiveness is the touchstone of exclusive executive authority granted by the Constitution, than Zivotofsky is truly a blockbuster case and one that the executive will cite for generations to come in order to maximize its authority. I suspect that the Court will be forced to clarify and perhaps narrow this rationale in some future case, but time will tell.

Victor M. Hansen