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Today in the Community: October 26, 2011

Today in the Community we are discussing Arizona v. United States, in which Arizona is asking the Court to review the Ninth Circuit’s decision barring it from enforcing several provisions of its controversial immigration law, S.B. 1070, on the ground that they are preempted by federal immigration law.  (Lyle discussed the case, as well as the status of several challenges to similar laws in other states, on Monday.)  We focus today on Arizona because the state’s petition is the only one currently pending before the Court.  More coverage of the petition itself is here; the blog also hosted an online symposium this summer with extensive analysis of the case. We look forward to reading your comments.

Five great comments from yesterday are below.

Robert Reinstein –

M.B.Z. v. Clinton is the first case in which there is an apparent conflict between an act of Congress and the President’s authority to recognize a foreign state or government. Assuming that the Supreme Court continues to apply the framework established in Justice Jackson’s concurring opinion in Youngstown, this is a case where the President’s power is at its “lowest ebb,” which means that the President can prevail only if the Executive recognition power is exclusive. The Solicitor General argues that the provision in Art. II, § 3, that the President “shall receive Ambassadors and other Public Ministers” creates such a plenary power. He relies on statements in a number of Supreme Court opinions and scholarly treatises, and on an allegedly unbroken practice that dates back to the Washington administration.

But the relevant sources are not as one-sided as most commentators believe. The framers almost certainly considered the Receive Ambassador Clause as merely imposing a ministerial duty on the President as head of state. There are statements in other Supreme Court opinions (including by Marshall speaking for the Court in 1818) that the recognition power belongs jointly to Congress and the President. And, at least through the Lincoln administration, no President claimed that he possessed such an exclusive power. In notable cases of recognition, Presidents Washington, Monroe, Jackson, Taylor and Lincoln either relied on duties of international law, acted jointly with Congress or deferred altogether to Congress. My own view is that history and the President’s role in conducting foreign policy gives him the implied power to recognize foreign states and government, but that power is not plenary. Much as in the case of executive agreements, the President can take the initiative; but Congress can modify or override his decision by statute.

The public should understand that this case has implications well beyond the content of passports. This case is at the tip of the iceberg of Middle East policy and politics. Can the President unilaterally recognize a Palestinian state with defined boundaries? Can Congress modify or override such recognition? The answers to these questions (mine are “yes” to each) may be determined by the decision in this case.

Vikram Amar –

It’s hard for me to imagine that the Court is anxious to take up the merits of this battle between Congress and the President over the dicey question of whether Jerusalem should be considered by the United States to be part of Israel. I speculate, then, that the Court granted cert. in the case to provide guidance on muddled doctrine surrounding so-called “political questions.”

To be sure, the political question category relied on by the D.C. Circuit — that the legal question being fought over is “textually committed” to a non-judicial branch — doesn’t seem like a great fit with this case. It can’t be that the President’s mere invocation of his recognition power forecloses a federal court from even looking at whether his power to undertake foreign policy is in fact likely to be impaired if a plaintiff’s challenge were accepted. In general, I think the textually-committed-to-another-branch prong of political question doctrine is often invoked carelessly. What is needed is a textual distinction that explains why some actions by Congress or the President, say, impeachment trials, are immune from judicial second-guessing, whereas others, like legislation, are not. Where the Constitution textually authorizes another branch to act as a court — as it does when the Senate holds impeachment trials or when each house judges the age, citizenship and election returns of its members — courts are arguably textually cut out of the loop. But that isn’t the case in MBZ. Of course, there may be other political question categories that might apply, and keeping each of the categories reasonably clear and coherent (if not always free from overlap) would be a worthy goal.

Michael Schwartz

The Government’s position that the Executive Branch has exclusive Constitutional power to define the contents of a passport is, simply, frivolous. In the first place, passports are creatures of statute, and there is no legal authority suggesting that Congress cannot define their contents. Moreover, the Government’s claim that, because the identification of a citizen’s birthplace may offend Israel’s enemies, the Constitution forbids Congress from adopting it, privileges non-U.S. citizens over Americans. Indeed, with respect to the issues that divide Israel and its enemies, Congress has frequently legislated in this area, and on the broader issues of Islamist terrorism and religious discrimination — no doubt offending far more powerfully that same foreign audience than a line in a passport could –without Constitutional objection from any prior Administration. Further, Congress has legislated, without Executive Branch objection, with respect to the terms on which foreign governments are recognized, notably in the instance of the United States’ recognition of Communist China. This last point is endorsed in a State Department paper published on the Department’s web-site, see “Foreign Policy Roles of the President and C ongress,”, at p. 6.

It is also noteworthy that, on the facts of this case, the petitioner was clearly born in Israel. He was born in a hospital located far to the west of the so-called “Green Line,” i.e., in an area that no-one except those who don’t recognize Israel at all claims is not part of Israel. And all his parents want the passport to say is that his birthplace is “Israel.” As the late Senator Daniel Moynihan pungently said, everyone’s entitled to their own opinion; they are not entitled to their own facts. This applies to the State Department as much as to anyone else.

Poster is Of Counsel to the firm of Wachtell, Lipton, Rosen & Katz. This post reflects the poster’s views, and not the views of the firm.

Fabio Arcila, Jr.

I want to talk about Orin Kerr’s position (here) that the GPS tracking in Jones should not be deemed a Fourth Amendment “search” because the Supreme Court should remain faithful to the inside/outside distinction underlying Knotts and Karo (the beeper cases), as well as his criticism of the mosaic theory (here) that the D.C. Circuit embraced to rule in Jones’s favor. Orin argues that the inside/outside distinction is a useful, easily applied standard, and that no ready alternative is available. He argues (correctly) that the inside/outside distinction is a bedrock Fourth Amendment principle, and thus it should hold sway here so as to avoid difficult line-drawing and provide sufficient clarity to law enforcement (namely, that it is free to engage at will in warrantless GPS tracking in public spaces, subject to possible limitations on installation of GPS devices). As for the mosaic theory, I think it’s fair to characterize his position as being that it is revolutionary and too amorphous and arbitrary, and that we would do better to reject it and instead simply apply the inside/outside distinction.

Orin’s reasoning sure feels like it sacrifices first principles in favor of judicial simplicity. In saying that, I mean to be purposefully provocative. Of course, a primary question is whether the GPS tracking in Jones violates first principles. But (hat tip to Colbert, whom I paraphrase) it sure feels “truthy” to declare that the Fourth Amendment must protect the public from round-the-clock location tracking surveillance by the state in any public space. (There’s a reason that Orwellian references have recently proliferated in case reports.) Admittedly, Colbert’s actual point is that truthiness is not a legitimacy standard, so further inquiry is required.

Here’s some: think about the potential for a pervasive surveillance state that flows directly from the United States’s arguments in Jones. The United States claims that it may engage in GPS tracking in public spaces without a warrant or the judicial oversight it provides; at its sole discretion and without probable cause or even any degree of suspicion whatsoever (it argues that it must have ready access to GPS data to establish probable cause); and that it may engage in such surveillance of anyone for as long as it pleases. (Has 10 years of surveillance shown nothing but innocent activity? Well, you never know what year 11 will show.) Implicit in these arguments is that there will be no judicial recourse for such surveillance (after all, there would be no Fourth Amendment violation, and almost certainly no tort except perhaps for trespass, but that is questionable, and in any event damages would still have to be shown and be large enough to justify the expense of a lawsuit).

Orin argues for application of a clear, historically well-established bright-line rule (the inside/outside distinction) to a never-before-seen context. But rules that worked well in the past might no longer work given changed circumstances, a particular concern when it comes to advancing technologies, with GPS tracking being a prime example. As David LeRoy points out above, police have not needed warrants to engage in physical surveillance; thus, the United States argues that it does not need a warrant for GPS tracking because it simply provides a different technique for engaging in the same surveillance. But GPS tracking is not just different in degree; it is different in kind. Physical surveillance could never achieve the same outcome as GPS tracking for at least three reasons. First, GPS tracking allows surveillance that is so pervasive and detailed that the government would be unable to achieve the same outcome in any other way due to the possibility of detection as well as resource-constraint issues (in terms of both cost and personnel). Second, GPS tracking does not require persistent human involvement, as do physical surveillance and beeper technology. Third, GPS tracking can access historical data from third-party service providers such as wireless carriers and thus can go back in time in a way that physical surveillance cannot (this possibility invokes the third party doctrine and is not at issue in Jones, but as I note in my blog post above is indirectly at stake).

Though the analytical simplicity Orin prefers is an alluring siren here, it leads us astray. Perhaps critics of my position find Orwellian concerns overly dramatic and misplaced. But it is analytically justified to ask what constitutional framework would avoid that potential outcome. There seem to be none. One of Orin’s critiques of the mosaic theory is that the point at which warrantless GPS tracking in public spaces becomes unconstitutional–when it changes from being brief (and allowed) to prolonged (and disallowed)–is arbitrary. I am not a fan of the mosaic theory, preferring instead the different-in-kind rationale explained in the preceding paragraph. But I will say that the same line-drawing difficulty Orin refers to also exists in defining when “routine” warrantless GPS tracking such as in Jones becomes so pervasive as to legitimately invoke Orwellian concerns. If line-drawing is to be avoided now, as Orin would have it, I see no basis for imposing it later, for the reason that Chief Judge Sentelle so pithily explained when he invoked the inside/outside distinction while dissenting from the denial of an en banc hearing in Jones before the D.C. Circuit: “The reasonable expectation of privacy as to a person’s movements on the highway is…zero. The sum of an infinite number of zero-value parts is also zero.” Thus, if Orin has his way, the resulting lack of Fourth Amendment protection extends right into the Orwellian nightmare. Our constitutional choice is to draw lines now, or not at all. Imposing a warrant requirement for GPS tracking would provide a clear, bright-line rule, which police could easily follow, and which would meaningfully protect the public from this sort of surveillance by regulating police discretion. Orin seems to agree that lines need to drawn (hence his call in his first linked post above for “a new privacy statute…to address both government and private-sector use of GPS surveillance”), but he does not see a basis for the judiciary imposing such lines through Fourth Amendment adjudication. Maybe it’s just me, but it would seem an awfully impotent Fourth Amendment that would not protect us from an Orwellian surveillance state in public spaces. But I don’t think it’s me that’s wrong; I think it’s them. Orin is willing to apply a portion of existing Fourth Amendment jurisprudence though it would offer no protection from an Orwellian outcome, rather than perceiving such a possibility as an indication that our Fourth Amendment jurisprudence is deficient and should be fixed. The Supreme Court has the opportunity to start that project in Jones.

Recommended Citation: Kali Borkoski, Today in the Community: October 26, 2011, SCOTUSblog (Oct. 26, 2011, 9:33 AM),