Geoffrey R. Stone's Blog

October 13, 2016

With Donald Trump in the White House, there is a high probability that the Supreme Court will overrule 'Roe v. Wade.'
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Published on October 13, 2016 15:33 • 16 views

October 1, 2016

I can only assume that Gary Johnson, who until recently was president and CEO of the company Cannabis Sativa, Inc., and who proudly admits that he frequently used marijuana himself, must have gotten the Tribune's editorial board very stoned for them to have written that editorial.
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Published on October 01, 2016 18:07 • 5 views

July 29, 2016

<![CDATA[This is a moment when we can do this within the system. This is a moment when it is absolutely critical to win. Don't blow it.]]>
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Published on July 29, 2016 11:47 • 7 views

July 11, 2016

Here we are today, almost half a century later, and it remains as true now as it was in 1967 that "our nation is moving toward two societies, one black, one white -- separate and unequal." When will we learn?
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Published on July 11, 2016 04:19 • 6 views

July 9, 2016

The Hon. Abner J. Mikva grew up in Milwaukee during the Depression. After serving as a navigator in World War II, he attended college and then entered the University of Chicago as a law student in 1948.
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Published on July 09, 2016 07:51 • 6 views

June 14, 2016

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Published on June 14, 2016 16:50 • 17 views

June 2, 2016

In a new scholarly article, law professors Robin Kar and Jason Mazzone have taken a deep dive into the history of Supreme Court nominations to test the plausibility of the Senate Republicans' purported "justification" for their action. Over the entire course of American history there have been 103 instances (prior to this one) in which an elected president faced a vacancy on the Supreme Court prior to the election of the next president. They found that in every one of those 103 instances, the president nominated and, with the advice and consent of the Senate, appointed the new Justice. There has not been a single exception to this practice in all of American history. And this is true even when, as in the current situation, the vacancy arose during an election year. In short, this would be the first time in American history that a president in President Obama's position would be denied this opportunity.
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Published on June 02, 2016 02:53 • 8 views

May 16, 2016

This piece was written in collaboration with four of my amazing students at the University of Chicago Law School: Samuel Jahangir, Benjamin Montague, Zeshawn Qadir, and Robert S. Sandoval.



Last month, the Supreme Court heard oral arguments in United States v. Texas, a lawsuit brought by twenty-six states challenging President Obama's immigration policies. The case deals specifically with the constitutionality of the President's 2014 Deferred Action for Parents of Americans (DAPA) program, which offers "deferred action" to undocumented immigrants who are law-abiding parents of American citizens. Roughly four million people could qualify under the program, which would allow them to remain in the United States for three years and to apply for work authorization, on a renewable basis.



At the heart of the case is a question about the permissible scope of executive discretion. When the President executes federal laws, to what extent can he interpret and implement them in a manner consistent with his own policy objectives? From a constitutional standpoint, Article II provides that the President must "take care that the laws be faithfully executed." This provision has its roots in the aftermath of the Glorious Revolution of 1688, when the English Parliament took away the King's power to suspend acts of Parliament. The Framers of the American Constitution, similarly concerned about the exercise of unchecked executive power, adopted the "take care clause" of Article II.



Also at stake in this controversy is the longstanding tradition of prosecutorial discretion. The executive authority in the United States has traditionally had wide latitude to determine whether to bring charges against alleged lawbreakers. Because prosecutors often do not have the resources to pursue every possible case, they have always been understood to have the responsibility to prioritize more important cases over less important ones. The memorandum authorizing DAPA reasoned that the Executive Branch could appropriately rely on this traditional discretion to delay deportation in the least important immigration cases.



The Obama administration cites the Supreme Court's 1985 decision in Heckler v. Chaney to support the constitutionality of DAPA. In that case, several inmates on death row argued that the use of particular drugs for lethal injection violated federal law, and they sought a court order to compel the Federal Drug Administration (FDA) to enforce the governing statute. The Supreme Court agreed with the FDA that the agency could lawfully exercise discretion not to enforce the statute.



The Court in Heckler also suggested, however, that the principle of prosecutorial discretion was not unlimited. For example, that principle might not justify an extremely broad policy decision that completely sets aside an agency's legal responsibilities. Thus, although a prosecutor can decide not to press charges against particular cocaine smugglers, the Executive Branch cannot casually decide to stop enforcing duly-enacted federal drug laws altogether.



With that distinction in mind, the central question in the challenge to DAPA, like most legal questions, involves a choice between competing analogies. Is President Obama's immigration policy similar to the prosecutor who declines to press charges in particular cases, or is it a broad policy decision that abdicates his responsibility to faithfully execute the law?



The strongest argument against Obama's policy points to its political backdrop. The President attempted initially -- and unsuccessfully -- to persuade Congress to enact legislation similar to DAPA. It was only after he failed in that effort that he turned to executive action. In light of the fact that the President promulgated DAPA in order to accomplish by executive action what he could not get Congress to approve, to what extent can the President's action persuasively be cast as the legitimate exercise of prosecutorial discretion? This is a serious objection to DAPA.



On the other hand, though, the considerations that support deference to prosecutorial discretion in this situation are quite strong. There are currently 11.3 million undocumented immigrants in the United States, and the Department of Homeland Security has the resources to remove only 400,000 per year. If at least 10.9 million undocumented immigrants will remain in the United States this year no matter what, then offering deferral to the 4 million undocumented immigrants who are the lowest priority for deportation seems like a straightforward application of prosecutorial discretion, albeit on a larger scale than usual. For this reason, both sides conceded at oral argument that if President Obama had simply identified four million individuals and issued each of them a "low priority" card, he would have acted within the bounds of his power.



The particularly controversial aspect of DAPA is that it ties deferred action to substantive benefits. Although the beneficiaries of DAPA are not eligible for services such as food stamps, they are eligible under the program to apply for work authorization and to participate in programs such as Social Security. At oral argument, this resulted in a linguistic battle between the government and Chief Justice Roberts. Because deportation is merely deferred under DAPA, the undocumented immigrants who benefit from the program are not "legally present" in the United States, but at least for the purposes of work authorization, DAPA deems them to be "lawfully present."



The solution to this riddle depends on whether the benefits conferred on the beneficiaries of DAPA can be tied to the President's lawful exercise of discretion. On this point, important practical considerations cut in President Obama's favor. First, every deferred action program authorized by presidents since the 1970s has carried with it the potential for work authorization. There is therefore strong precedent for the President's policy. Second, and perhaps more important, once it is agreed that the President has the legal authority to defer removal for this subset of undocumented immigrants, it would seem cruelly inconsistent to allow these individuals to live in the United States while simultaneously denying them the means to support themselves.



It is important to bear in mind that the benefits at issue are quite limited. The long-term legal status of the beneficiaries of DAPA remains unchanged, and the government can still deport them at a later time. While they can earn credits for the purpose of Social Security, they likely won't benefit from those credits unless they receive a more permanent legal status in the future and are able to remain in the United States until retirement age. Finally, DAPA is advantageous to the nation in the sense that once recipients receive work authorization, they can start contributing to the tax base.



Perhaps most fundamentally, these aspects of DAPA do nothing more than ensure that those who are authorized to live here are allowed to earn a living. Justice Samuel Alito wondered during oral argument how it is possible to lawfully work without being lawfully present. Perhaps a better question would be to ask how a nation could with one hand offer a man a home, and with the other punish him for wanting to pay the rent.
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Published on May 16, 2016 11:53 • 15 views
Last month, the Supreme Court heard oral arguments in United States v. Texas, a lawsuit brought by 26 states challenging President Obama's immigration policies. The case deals specifically with the constitutionality of the President's 2014 Deferred Action for Parents of Americans (DAPA) program.
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Published on May 16, 2016 06:41 • 3 views

April 3, 2016

The furor over Donald Trump's comments this week about punishing women who have abortions raised an interesting question. Trump asserted that, if abortion were once again made a crime, women who have abortions should be punished. Trump was simply being logical. It is standard practice under the criminal law that a person who commits a crime, who conspires with others to commit a crime, or who pays others to commit a crime, is guilty of a crime. In simplest form, if X pays Y to kill Z, X is guilty of a crime. Trump was just extending that common-sense rule to the context of abortion.



That pro-choice groups vehemently attacked Trump's assertion was predictable and understandable, because they are committed to the view that women have a fundamental personal and constitutional right to terminate an unwanted pregnancy. What was puzzling, though, is that he was also vehemently attacked by the anti-abortion forces and by members of the Christian Right.



This is puzzling because if abortion is murder of a human life then it logically follows, as Trump suggested, that the woman is guilty of a crime when she is complicit in murdering her unborn child. Why then did the anti-abortion forces attack Trump?



One possible explanation for the seeming inconsistency among the anti-abortion forces is that they are simply political hypocrites. They condemn abortion, but not to the extent of having the courage or consistency of their convictions. But there is another, and even more disturbing, explanation. This alternative explanation was evident in Trump's revised position, in which he declared that the woman who has an abortion should not be punished because she "is a victim." Ted Cruz echoed this same explanation, as did Dr. Ben Carson, who explained: "The woman is the victim. She's traumatized emotionally and in many other ways that's problematic. In terms of who should be punished, that women has already been punished."



The point, in other words, is that the woman who has an abortion should not be punished because she has suffered enough. But would they say this about a woman who pays someone to kill her four-month-old child? I rather doubt it. To understand where this rather perverse notion comes from, a little history may be enlightening.



In England in the centuries before the founding of the American nation, abortion was legal as long as it took place before quickening (when the mother first feels fetal movement in her uterus), which typically occurs at around eighteen weeks, or roughly halfway through a pregnancy. The prevailing view was that the fetus was not "ensouled" until quickening. As the great English scholar William Blackstone observed in 1765, human life "begins in contemplation of law" only after the "infant is able to stir" in the woman's womb.



After the Revolution, the American states universally adopted this position, and abortion was legal in the United States at any time prior to quickening. Through the middle of the Nineteenth Century, abortifacients were widely available from mail-order firms and pharmacists, several generally available books offered instruction on how to terminate a pregnancy, and daily newspapers regularly ran ads for products that promised to "cure" pregnancy - a euphemism for terminating a pregnancy. By the 1870s, approximately twenty percent of all pregnancies were purposefully terminated.



But then the moralists moved in. During the evangelical fervor of the Second Great Awakening in the 1830s, Protestant understandings of the fetus began to change. Abandoning the traditional view, evangelicals now preached that a separate and distinct life came into being at the instant of conception.



This shift in religious perspective was reinforced by the conclusion of some medical professionals, based partly on religion and partly on science, that life begins at conception. In 1839, for example, Dr. Hugh Lenox Hodge published a pamphlet in which he confidently asserted that embryos could think and could perceive right and wrong.



The most influential voice in this transformation was that of the Boston gynecologist Horatio Storer, who published a highly influential essay in 1865 titled Why Not? A Book for Every Woman. In this essay, Storer made essentially two arguments against abortion. First, he maintained that "the fetus in utero is alive from the very moment of conception," and that it therefore followed that for a woman "to extinguish the first spark of life is a crime of the same nature, both against our Maker and society, as to destroy an infant, a child, or a man."



Second, Storer argued that abortion is "a thousand times more dangerous" to the woman than childbirth. He maintained that many women who have an abortion "become confirmed invalids, perhaps for life," and develop "serious and often fatal organic disease." Some die, either immediately or later, as a result of "moral shock from the thought of the crime," whereas others, he declared, are driven to insanity.



Storer emphatically rejected the proposition that the woman should be able to decide this question for herself, noting that if she were given this responsibility "her decision . . . would be . . . warped by personal considerations," particularly because, during pregnancy, "woman's mind is prone to depression, and, indeed, to temporary actual derangement, under the stimulus of uterine excitement."



Influenced by the combination of religious and pseudo-medical positions, by the dawn of the Twentieth Century, every state had enacted legislation absolutely prohibiting abortion from the very moment of conception unless a doctor certified that it was necessary to save the life of the woman. Despite these laws, as many as two million women still had abortions each year, and almost a third of all pregnancies ended in abortion. But because of these laws, these abortions now had to be performed illegally, in less safe circumstances, and by less reliable practitioners than in the past. The era of the "back-alley" abortion had been born.



The point of this bit of history is that it explains why the anti-abortion forces insist that, even if abortion were illegal, women who have abortions should not be criminally punished. It is because, as Ben Carson, echoing Horatio Storer, explained, when a woman has an abortion, she is a victim. She is so "traumatized emotionally" that there is no need for any further punishment.



This view of the anti-abortion forces is horrifically paternalistic, insulting and demeaning to women. It is based on the perverted premise that every woman who chooses to have an abortion is making a decision based inescapably on "temporary mental derangement" and will suffer dire emotional, psychological, and sexual trauma for the rest of her life.



The best answer to this patronizing way of thinking was offered by Justice Ruth Bader Ginsburg in her dissenting opinion in the Supreme Court's 2006 decision in Gonzales v. Carhart, in which the Court, in a five-to-four, decision, upheld the constitutionality of a law forbidding so-called partial-birth abortion. In his majority opinion, Justice Anthony Kennedy suggested, without any evidence, that women who have abortions have a fragile emotional state, come to regret their choices, and suffer from "severe depression and loss of esteem."



A furious Justice Ginsburg responded that this was "an antiabortion shibboleth" which had no support in reality. "This way of thinking," Ginsburg charged, "reflects ancient notions about women's place in the family--ideas that have long been discredited." Ginsburg concluded that, though the majority "may regard women's feelings on the matter as self-evident," the Court has repeatedly confirmed over the years that "the destiny of the woman must be shaped by her own conception of her spiritual imperatives and her place in society."



What is most offensive about the Trump, Cruz, Carson, anti-abortion contention that women who have abortions are "victims" is that it is profoundly dishonest and insulting to the dignity and integrity of women. They should be ashamed.
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Published on April 03, 2016 10:15 • 10 views

Geoffrey R. Stone's Blog

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