Cox & Rodríguez, "The President and Immigration Law"

Oxford University Press has released The President and Immigration Law, by Adam B. Cox (New York University School of Law) and Cristina M. Rodríguez (Yale Law School). A description from the Press:

Who controls American immigration policy? The biggest immigration controversies of the last decade have all involved policies produced by the President — policies such as President Obama's decision to protect Dreamers from deportation and President Trump's proclamation banning immigrants from several majority-Muslim nations. While critics of these policies have been separated by a vast ideological chasm, their broadsides have embodied the same widely shared belief: that Congress, not the President, ought to dictate who may come to the United States and who will be forced to leave.

This belief is a myth. In The President and Immigration Law, Adam B. Cox and Cristina M. Rodríguez chronicle the untold story of how, over the course of two centuries, the President became our immigration policymaker-in-chief. Diving deep into the history of American immigration policy — from founding-era disputes over deporting sympathizers with France to contemporary debates about asylum-seekers at the Southern border — they show how migration crises, real or imagined, have empowered presidents. Far more importantly, they also uncover how the Executive's ordinary power to decide when to enforce the law, and against whom, has become an extraordinarily powerful vehicle for making immigration policy.

This pathbreaking account helps us understand how the United States has come to run an enormous shadow immigration system-one in which nearly half of all noncitizens in the country are living in violation of the law. It also provides a blueprint for reform, one that accepts rather than laments the role the President plays in shaping the national community, while also outlining strategies to curb the abuse of law enforcement authority in immigration and beyond.

More information is available here. A New Books Network interview with the authors is available here.

-- Karen Tani

Pfander on Common Law Qualified Immunity

James E. Pfander, Northwestern University School of Law, has posted Zones of Discretion at Common Law:

Scott Keller argues in an important forthcoming article that the common law recognized forms of qualified immunity. This reply suggests that Keller’s authorities comprise a body of administrative law, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official’s lawful discretion ended, and legal boundaries were transgressed, the common law was available (indeed obliged according to Marshall) to supply a remedy. In much of what Keller points to, common law courts were acknowledging that executive officials enjoyed zones of lawful discretion. But the common law did not confer immunity when those boundaries were transgressed. 

--Dan Ernst

Phillips and Yoo on Originalism and Impeachment

James Cleith Phillips, Chapman University, The Dale E. Fowler School of Law, and John Yoo, University of California at Berkeley School of Law have posted Your Fired: The Original Meaning of Presidential Impeachment, which is forthcoming in the Southern California Law Review 94 (2021):

With just the third impeachment of a President in the nation’s history, questions about the Constitution’s original meaning of presidential impeachment are again salient. Unlike other constitutional provisions, the Impeachment Clause has generated neither much historical practice nor case law with regard to the removal of a President. The Supreme Court has deemed impeachment the ultimate political question. Thus, the original meaning takes on great weight. Further, previous scholarship has only either incidentally or in piecemeal fashion looked at the originalist evidence, and thus been akin to the tale of the blind men each feeling a different part of an elephant and consequently coming to wildly differing views as to what was before them.

This article systematically examines that original meaning in light of the Philadelphia Convention debates, the Federalist Papers (and Anti-Federalist responses), and the state ratifying conventions. This article is the first to both provide a corpus linguistic analysis of the term “high crimes and misdemeanors” and to publish findings from the Corpus of Early Modern English (COEME).

In short, the article finds that the original meaning of presidential impeachment was both narrower and broader than the criminal law. Not every crime was an impeachable offense, but not every impeachable offense was a crime. Further, the corpus analysis shows that the term the Founders adopted was not by accident but was an established legal term of art in Great Britain. The article then applies these findings to the impeachment of President Trump, provides an in-depth analysis of the proceeding in light of the Constitution’s original meaning, and critiques arguments made on both sides.

–Dan Ernst.  H/t: Legal Theory Blog

JSCH 45:2

Journal of Supreme Court History 45:2 (2020) has been published.  Here’s the TOC:

Introduction
Melvin I. Urofsky

Fletcher, Whitney, and the Art of Disagreement
Mark R. Killenbeck

Chief Justice Melville Weston Fuller and the Great Mustache Debate of 2444
Todd Peppers

The Politics of Disabled Supreme Court Justices
Judge Glock

Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States
Robert Post

Kumezo Kawato and “Justice Court”
Charles J. Sheehan

--Dan Ernst

Blackman on Presidential Subpeonas during the Burr Trial

Josh Blackman, South Texas College of Law Houston, has posted Presidential Subpoenas during the Burr Trials:

Aaron Burr (LC)

Between March and October of 1807, Aaron Burr stood for two treason trials arising from the same set of facts: the first, for a felony charge, and the second, for a misdemeanor charge. Chief Justice John Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued seventeen written opinions, and delivered several shorter decisions from the bench, that spanned over two-hundred pages in the reporter. In the end, based on Marshall’s narrow construction of the crimes of treason, the jury acquitted Burr of both the felony and the misdemeanor charges. Marshall’s rulings, however, were not limited to technical aspects of criminal law. In both trials, Aaron Burr asked the court to issue a subpoena duces tecum to President Jefferson. Such a subpoena would have required the witness to appear in court, and bring a specific document. Specifically, Burr wanted Jefferson to produce a letter authored by General Wilkinson, dated October 21, 1806. Burr insisted that this transmission to the President was material to his defense. Moreover, the Defendant demanded that Jefferson produce the original copy of Wilkinson’s letter. The United States Attorney, George Hay, would only offer to provide a redacted copy of the letter, with certain portions excluded.

As the deliberations proceeded, Hay would frequently write to the President, who traveled between the White House and Monticello. Jefferson, who took a keen interest in the case, would usually write back immediately. The correspondences between Jefferson and Hay outside of court can shed light on the interactions between Hay and Marshall in court. That is, the government’s positions were based on direct instructions from the President himself. In the felony trial, Marshall ordered that Jefferson was required to submit the original copy of the letter, without redaction. Jefferson did not comply with this order. In the misdemeanor trial, Jefferson would provide a redacted copy of the letter.

Because of the lengthy nature of the proceedings — in which Marshall and Jefferson took different positions at different junctures — it is difficult to draw too many broad conclusions from the prosecution as a whole. This essay will walk through each phase of the proceedings, with an eye towards understanding the limits on presidential subpoenas.

--Dan Ernst