WHERE THE RUBBER MEETS THE ROSARY: The Supreme Court Hears Trinity Lutheran Church v. Comer

Does a playground for two-year-olds advance a religious purpose just because it is run by a church? Is the government justified in denying funding to a church to build that playground, even when the government would provide funding for the exact same playground if it were built by a secular organization? The case of Trinity Lutheran Church v. Comer, being heard this week at the Supreme Court, addresses these questions. In other words, when is a playground more than just a playground?

Used tire scraps – which can be recycled and turned into soft, safe surfaces for playgrounds – are instead routinely discarded in landfills. This not only creates unnecessary waste, it also means that playgrounds are instead covered in cement and other hard, unsafe surfaces for kids. In an effort to kill two birds with one stone, the state of Missouri created the Scrap Tire Grant Program (STGP), a program designed to reimburse non-profit who purchase used tire scraps for their playgrounds. Trinity Lutheran Church, which also runs a religious preschool and daycare center, applied to the STGP to obtain reimbursement for this very purpose.

Despite Trinity’s application ranking fifth among the forty-four applicants for a grant – high enough where the application was surely to be approved – the state of Missouri rejected Trinity’s bid. It did so solely on the basis that the Missouri Constitution forbids public funding of religious organizations. Trinity sued, claiming violations of the First Amendment’s Free Exercise clause and the Fourteenth Amendment’s Equal Protection clause, but it lost in both the district and circuit courts (the panel split 2-1). Cert was granted, and the Supreme Court hears argument this Wednesday, April 19th.

No one disputes that the funds would be used for a seemingly secular purpose: a playground. In fact, it is a playground that children of the community at large also use after school hours and on weekends. However, the government essentially states that it can exclude the church from eligibility entirely because of the Establishment Clause concerns implicated by government funding of religious organizations, even if the conduct at issue by the church is not overtly religious in nature.

This case essentially presents a battle between 1) a state’s freedom to protect its citizens against Establishment Clause concerns and 2) religious organizations’ rights under the U.S. Constitution.  One one hand, the religious liberty side says that religious groups are not seeking special treatment and instead simply do not want to become “second-class citizens” under the law. On the other hand, Missouri argues that every state needs room to protect its citizens from  religious encroachment, in order to preserve the separation between church and state. Both sides have interesting points, and the case essentially presents two favorite conservative causes, state’s rights and religious liberty, and puts them at odds with one another.

Thus, not surprisingly, the case makes for strange bedfellows. The ACLU and certain religious groups are both supporting the government, while many other religious groups of varying faiths are supporting a Lutheran church receiving government funding, which in other contexts might produce outrage by other religious groups. Moreover, one religious liberty scholar supporting Trinity Church even cited Romer v. Evans, a landmark gay rights case, as one of the grounds on which the church could win.

That scholar is Mark Rienzi, professor at Catholic University and Senior Counsel at the Beckett Fund for Religious Liberty. Rienzi and the Beckett Fund are frequently involved in religious liberty cases at the Supreme Court, they wrote an amicus brief for Trinity Church in this case, and Mark graciously agreed to speak with me about this case.

Rienzi essentially asserts that this is a classic discrimination claim – the church is being denied a benefit solely because of its status as a religious organization, and the state admits it. That, to Rienzi, is a lot like other discrimination cases, such as Romer, where the Supreme Court struck down on Equal Protection grounds Colorado’s constitutional amendment preventing the state from recognizing homosexuality as a protected class. As Rienzi stated in our conversation:

“The high level principle is the government can’t exclude you from equal participation based on your status. The core of Romer was that principle. The government can’t exclude you from equal participation based on your status and yet that’s precisely what the state of Missouri is admitting it’s doing to religious groups [in Trinity]. And that that just seems obviously impermissible.”

To be sure, Rienzi also believes that Romer is just one of the ways in which the church can win, and that it also has a strong Free Exercise claim. But, the comparison between religious liberty and gay rights certainly caught my eye.

Ultimately, the most persuasive argument I heard from Rienzi was his comparison to FEMA’s response after Hurricane Sandy. When entire town blocks were destroyed, FEMA did not exclude synagogues and churches from its rebuilding efforts, but rather it helped rebuild these religious organizations just like any other entities that were damaged. As Rienzi stated to me:

“Hurricane Sandy in some towns wiped out the whole block. It wipes out the candy store and the library and the synagogue and something else. And FEMA is going in with grant money to help everybody pump the water out and repair their places. One view of the world says, ‘Oh, you can help the candy store. And you can help the library, it’s a public thing. And you can help the movie theater. But skip the synagogue and go to the next one.’

FEMA, to their credit, came around to the correct answer, which is ‘No, we’re not helping the synagogue in any special treatment for religion kind of way. We’re helping the synagogue because it’s one of the things on the block that got wiped out. We’re helping everything on the block that got wiped out.’ That sort of equal treatment for religion – not treating religion as something that needs to be segregated or mistreated, but instead as something that can participate on equal terms with everything else – that’s what the constitution requires and that’s what Missouri’s getting wrong here.”

That analogy underscores the fundamental point being made: just because an organization is religious does not mean that providing it with government funding will inherently erode the wall between church and state. We aren’t dealing with government funding of new prayer books, we are dealing with tire scraps for a preschool playground. As I said above, sometimes a playground is just a playground.

The case is essentially the polar opposite of a prior free exercise case, Employment Division v. Smith, 494 U.S. 872 (1990). There, when an Oregon man was denied unemployment compensation due to his religious use of peyote, the Supreme Court held that neutral laws of general applicability do not violate the Free Exercise clause, even when they incidentally restrict religious conduct. Thus, the peyote ban was constitutional.

The Trinity case is basically the exact opposite – here, the religious organization is engaging in neutral conduct (getting tire scraps for a playground), yet the government is treating it differently solely on the basis of religion. It remains to be seen whether the Court will in turn apply strict  scrutiny or will instead – like in Smith – opt to apply a much lower standard.

Moreover, the case is complicated by a last minute decision by the State of Missouri – under a new administration – to reverse course and grant STGP eligibility for religious organizations. This decision, issued on Friday, only five days before oral argument, does not appear to moot the issues, but it does potentially undercut the government’s argument that the exclusion of religious organizations is necessary to preserve the wall between church and state in Missouri.

How this case falls is obviously anyone’s guess, but it will likely turn on how well Trinity Church can craft a workable rule in its favor. If Trinity were to win, where would the line be drawn? Could governments bar funding for overtly religious conduct but not purely secular conduct? Could governments ban funding for chapel benches but not playground benches? Could it ban funding for matzah but not wonder bread? I think that Trinity has a very compelling argument in the playground context, but crafting a general rule is clearly the thorniest aspect of their position. To that end, Missouri certainly has the easier argument: a bright-line rule banning government funding of religious organizations is simple, it is workable, and it avoids having lower courts sorting out its Malbec from its Manischewitz.

Ultimately, only god knows how this one will end.

Thank you again to Mark Rienzi for speaking with me about this case. I really appreciate it.

Lee v. U.S.: Plea Bargains, Deportation, and Very, Very Strange Bedfellows

Present political situation aside, America is pretty awesome. To quote our first treasury secretary, it’s the land “where even orphan immigrants can leave their fingerprints and rise up.” And that is why the case of Lee v. U.S. is so interesting: it asks, when faced with overwhelming odds of conviction and automatic deportation, is it ever rational for a criminally-charged lawful permanent resident to risk trial in a Hail Mary attempt to avoid deportation? According to Petitioner Jae Lee, the answer is yes. The U.S. government, however, disagrees. The case will be argued at the Supreme Court this week.

At 13 years old, Jae Lee moved from South Korea with his parents. For whatever reason, while he maintained legal permanent residency, he never obtained his U.S. citizenship. Lee developed a drug problem and in 2009 was arrested and charged with possession of ecstasy with an intent to distribute.

When contemplating a potential plea bargain, Lee made clear to his attorney that his primary priority was avoiding deportation, even at the expense of a shorter sentence. His attorney incorrectly advised him that if he took the plea offered by the government of pleading guilty to possession with intent to distribute in exchange for a shorter sentence, he would not and could not be deported. In reality, deportation was a mandatory penalty for the crime for which he had just been convicted, and deportation proceedings were promptly instituted.

Lee appealed on the basis that he received ineffective assistance of counsel. Under the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), a defendant asserting a claim of ineffective assistance of counsel must not just prove that his attorney’s representation was “deficient”, but also that the defendant was “prejudiced” as a result. The parties agree that the first element is met; indeed, the Supreme Court ruled in Padilla v. Kentucky, 559 U.S. 356, that a lawyer provides ineffective counsel when he fails to tell a client that pleading guilty will subject the defendant to deportation.

The case thus centers on the second element: was Jae Lee actually prejudiced as a result of his attorney’s plainly deficient advice? Despite the gut reaction being “obviously”, the Sixth Circuit said no, basing their decision on the aforementioned Padilla case, which stated that “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”

The Sixth Circuit reasoned that it would not have been objectively rational to reject the offered plea because Lee had no real chance of avoiding deportation due to overwhelming evidence of his guilt, and because there was no real prospect of pleading down to a non-deportable offense. According to the Sixth Circuit, “being denied the chance to throw a Hail Mary at trial does not by itself amount to prejudice.” Lee, on the other hand, essentially argues that with nothing to lose deportation-wise, it would have been perfectly rational to “risk it” at trial. Thus, by depriving Lee of this option, Lee was prejudiced. It bears mentioning that circuit courts are deeply split on this very issue, with the Third, Seventh, Ninth and Eleventh Circuits finding for defendants in Lee’s situation, and the Second, Fourth, Fifth and Sixth (both here and in a prior decision) Circuit Courts finding against similarly-situated defendants.

At issue is not just Lee’s fate, but also the Court’s view of the state of plea bargaining in this country. To that end, the case makes for strange alliances and bedfellows. Liberal criminal justice reformers criticize the system as a plea bargaining mill, where under 5 percent of cases go to trial and the other 95% defendants plea rather than risking trial. This criticism of plea bargaining underscores Jae Lee’s argument and was discussed in amicus briefing in Lee’s favor. Representing Lee, however, is not the ACLU or a liberal interest group, but rather John J. Bursch, the conservative former Michigan Solicitor General who had been floated as a possible Trump pick for Solicitor General, and who has argued before the Supreme Court ten times. The most notable of these appearance was in Obergefell v. Hodges, when he argued on behalf of the states against gay marriage. In another case before the high court, Lafler v. Cooper, 566 U.S. __ (2012), during his stint as Michigan’s Solicitor General, Bursch argued against a criminal defendant’s ineffective assistance claim under Strickland. Suffice it to say, representing a likely-guilty drug-dealing immigrant against the government’s attempts to deport him is not a typical situation for him. In fact, twenty states – all of which were won by Trump, including Bursch’s home state of Michigan – filed an Amicus Brief against Lee and for the U.S. government. That Lee is represented by Bursch instantly provides conservative gravitas and legitimacy to his argument.

On the other side, we have the United States government, paradoxically arguing that remaining in America is not great enough to risk jail time for. That is obviously an over-simplification of their position, but hits at the gravamen of Lee’s argument – that it is sometimes rational for an immigrant to risk trial and extended jail time in order to maintain a sliver of hope of remaining in this country.

In a perfectly logical way, the government’s position makes sense – Lee cannot prove prejudice because he cannot show that his attorney’s ineffectiveness plausibly led to a worse outcome, since Lee’s conviction and deportation were almost certain to occur. But it’s the “almost” part of “almost certain” that is key. Like all citizens, Lee has a constitutional right to a jury trial and a presumption of innocence, and that was taken from him directly because of his attorney’s deficiency. However unlikely, Lee could have won – at least on the deportation-mandatory “intent to distribute” charge. Lee also may have obtained a more favorable plea on lesser, non-deportable charges later in the proceedings.

Going to trial to maintain that sliver of hope is objectively reasonable, even at the risk of a longer jail sentence. For an immigrant, remaining “in the United States may be more important than any potential jail sentence.” Padilla, at 368. Not just to Jae Lee, but to other immigrants as well. Lee’s attorney, Bursch – who personally argued against gay marriage in the Supreme Court – persuasively provides the example of a legal immigrant from Nigeria who is LGBT and would face potential death if returned to his home country. To that defendant, taking his chances at trial is certainly objectively rational. Bursch then cites to an article listing ten countries where homosexuality is punishable by death. This argument serves as the piece de resistance of Lee’s brief, and it is even more stunning considering the source.

That Bursch is the one making this argument may actually be the thing that wins the day for Lee. It would be very easy for Chief Justice Roberts and other conservatives in the “calling balls and strikes” crowd to write Lee’s case off as an unfortunate but straightforward application of existing precedent. But Bursch’s involvement complicates things, and it may create a subconscious permission structure for at least some of the conservatives (i.e. Roberts and Kennedy) to find for Lee. Again, this isn’t the Southern Poverty Law Center making this argument, it is a prominent conservative appellate lawyer who has spent his career representing governments and defending conservative positions.

Ultimately, Chief Justice Roberts and Justice Kennedy will likely be the deciding votes, and it remains to be seen whether they or the other justices will be swayed by Lee’s logic. But it certainly appears to me to be an instance when risking near-certain conviction at trial would be objectively favorable to a plea to reduce prison time.

County of Los Angeles v. Mendez: The Ninth Circuit Going Rogue or Applying Conservative Legal Principles? (Wait, What?)

The case of Los Angeles v. Mendez, scheduled for oral argument this week, asks whether law enforcement officers can be held liable when they reasonably used force on a citizen, but nonetheless unreasonably created the scenario which gave rise to the need to use force in the first place. This case creates an interesting intersection of Fourth Amendment excessive force doctrine, search and seizure jurisprudence, tort law, protection of privacy in the home, and even the right to bear arms, and may present a rare case when conservative legal principles functionally expand police shooting liability.


In Mendez, two Los Angeles Sheriff’s Deputies entered a residential property without a warrant. They then encountered a shack located in the backyard of the residential property, in which Plaintiffs Angel Mendez and his then-girlfriend (now-wife) Jennifer Lynn Garcia were living at the time.  Mendez heard the officers searching the backyard, but the defendants did not identify themselves as officers. The officers barged into the shack, unannounced. At this point, Mendez, who happened to be holding a BB gun to ward off rats and other pests in the shack, began to sit up. One of the officers, upon seeing Mendez with a gun, yelled “gun!”, and both officers then fired upon Mendez and Garcia, injuring them.

It is established that the law enforcement officers in question did not use excessive force in shooting Plaintiffs Mendez and Garcia after they saw Mendez holding a firearm (which turned out to be a BB gun) and beginning to sit up. However, the twist lies in the fact that while the officers acted reasonably in shooting the plaintiffs, said officers may have nonetheless violated Plaintiffs’ constitutional rights by acting in a manner which provoked or caused the armed confrontation between themselves and Plaintiffs.


Excessive force cases are decided based on whether the force was reasonable, at the time of the shooting, from the perspective of the officer. Graham v. Connor, 490 U.S. 386 (1989). This issue of perspective is critical. Thus, regardless of the civilian’s actual intentions (or even the civilian’s actual conduct), if the officer reasonably perceived that he/she faced imminent risk of deadly harm, then the officer is legally permitted to shoot the civilian in question. Again, the reasonableness of the civilian’s conduct or intentions is irrelevant, as long as the officer reasonably believed that force was necessary.



At trial, the court found that the officers had not committed excessive force. However, the court did find the officers liable under a “provocation” theory, which has been adopted only in the Ninth Circuit. Under this doctrine, an officer may be held responsible for an otherwise reasonable use of force when the officer intentionally or recklessly provoked the violent confrontation in which the force was used, and the provocation was itself an independent Fourth Amendment violation. The Ninth Circuit upheld the jury’s verdict under its “provocation” doctrine, and also framed the Plaintiffs’ injuries as being reasonably foreseeable based on the initial unreasonable entry into the home:

“Under these principles, the situation in this case, where Mendez was holding a gun when the officers barged into the shack unannounced, was reasonably foreseeable. The deputies are therefore liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment.”

Mendez v. County of Los Angeles, 815 F.3d 1178 (9th Cir. 2016)


The case presents an interesting issue of framing. The Court has been very reluctant to expand theories of liability in Fourth Amendment police shooting cases and has frequently granted qualified immunity in novel law enforcement excessive force situations, ruling that the unconstitutional nature of the officers’ conduct was not clearly established. See, e.g., White v. Pauly, __ U.S. ___ (2017); Mullenix v. Luna, 577 U. S. ___, (2015); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015); Plumhoff v. Rickard, 572 U.S. ___ (2014).  

Thus, the idea of adopting a new “provocation” theory in excessive force cases, which exists only in the traditionally-liberal Ninth Circuit, may not seem appealing to the Court. However, even members of the conservative wing of the Supreme Court may be willing to acknowledge that when officers unconstitutionally enter a civilian’s home, those officers are liable for  harms proximately caused by that violation. That is where this case gets interesting – although the court may not want to create a “new” theory of liability, it may not have any issue applying the long-established concept of proximate cause to this particular context. In fact, certain conservative principles may form the basis for a ruling for the plaintiff here.

For example, conservative Justices have been especially protective against government intrusion into one’s home. As the late Justice Scalia wrote in Kyllo v. United States, a case barring the police from using thermal imaging to “view” inside one’s home without a warrant, “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” 533 U.S. 27 (2001)(emphasis added). That case produced the idiosyncratic majority of Justices Scalia, Thomas, Ginsburg, Breyer, and Souter (three of whom are still on the bench), and entrenched the Court’s heightened protection of the home in Fourth Amendment jurisprudence.

Further, the conservative justices have been very willing to protect the right to bear arms in one’s home, which was of course what Mendez was doing which caused the officers to shoot him in the first place. In D.C. v. Heller, another Scalia opinion, the Court held with a 5-4 all-conservative majority that the Second Amendment protects the right to own a firearm in one’s home. The Second Amendment critically protects the right the bear arms in “the home, where the need for defense of self, family, and property is most acute.” 554 U.S. 570 (2008). The Court concluded, “[i]n sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment…”

Here, Mendez was possessing a weapon in his own home, which is constitutionally-permissible behavior. As a direct result of his engaging in protected behavior, and not much else on his part, Mendez was shot by police. Thus, if the officers win, this case would essentially punish Mendez for engaging in constitutionally permissible behavior and would let the officers off the hook for committing and unconstitutional search of Mendez’s home. The conservative justices may see this as an opportunity to stealthily strengthen the right to bear arms, and it’s very plausible that they will not throw away their shot.


Lastly, the Supreme Court need not “expand” police liability to find for the plaintiffs, as it can instead view this case as one of proximate cause, as certain circuit courts have done.

It has long been held that causation is a necessary element of a constitutional claim. See Monroe v. Pape, 365 U.S. 167, 187 (1961) (Section 1983 is “read against the background of tort liability that makes a man responsible for the natural consequences of his actions.”). Some circuit courts have taken the next step of analyzing this particular factual scenario – an unreasonable search which leads to an otherwise reasonable use of force – in the framework of proximate cause. 

 In certiorari briefing before the Supreme Court, Mendez pointed to a decision by Justice Alito when he served as a Judge in the Third Circuit, Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995),  which adopted such a framework. In Bodine, a similar situation occurred where law enforcement officers conducted an unconstitutional search of a home which then led to a deadly confrontation. Justice Alito made clear that an officer’s liability for unlawful conduct is to be determined by “basic principles of tort law,” including principles of proximate cause. As a result, police officers who illegally enter a suspect’s home “would not be liable for harm produced by a ‘superseding cause”, but “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” The court held that if the jury were to determine “that the troopers’ entry was unlawful, it will be necessary to determine how much of the injury suffered by Bodine was proximately or legally caused by the illegal entry.” The court also recognized that while the illegal entry and excessive force claims are separate, “[t]he harm proximately caused by these two torts may overlap.” However, critically, then-Judge Alito made clear that liability  would “not necessarily include all harm resulting from the otherwise reasonable use of force to carry out the detention.” (emphasis added).

 Moreover, the Tenth Circuit has previously applied a proximate cause framework in a similar case in 2016; when an officer shot a plaintiff after unlawfully entering his home, the court stated that “because a reasonable jury could determine that the unlawful entry was the proximate cause of the fatal shooting of [Plaintiff], we need not decide whether [Defendant officer] used excessive force when he confronted [Plaintiff].” Attocknie v. Smith, 798 F.3d 1252 (10th Cir. 2015), cert. denied, 136 S. Ct. 2008 (2016). The Supreme Court denied cert there, meaning that it may in fact be willing to apply the proximate cause framework in cases similar to Mendez.

For what it’s worth, the Tenth Circuit applied this framework in a more recent but much more factually-convoluted case, Pauly v. White, and the Supreme Court summarily reversed it (seemingly on other grounds) earlier this year. Notably, while the plaintiffs cited Pauly in their certiorari briefing, they omitted it in their merits brief. The effect of Pauly on the Mendez case is unclear, however, especially since the Supreme Court previously denied certiorari on the much more straight-forward Attocknie case.

Regardless, the Supreme Court can easily view this claim within the rubric of proximate cause, rather than “inventing” a new theory of liability, and thus the Ninth Circuit’s decision seems less like a rogue decision and more like a reasonable expression of existing constitutional principles.


The Supreme Court could go a lot of ways with this one, from (in no order): 1) outright rejecting the provocation doctrine, 2) adopting the provocation doctrine (still within the realm of possibility depending on Justice Kennedy’s views), 3) applying a proximate cause standard and finding for the plaintiffs, 4) adopting the proximate cause framework but nonetheless finding that Mendez’s conduct was a superseding cause, 5) applying the proximate cause standard but remanding for consideration of whether Mendez’s conduct was a superseding cause, or even 6) adopting either of the above frameworks but granting the officers qualified immunity by finding  that the right at issue was not clearly established. It bears mentioning that the court has been very willing to summarily reverse in excessive force cases on qualified immunity grounds, but that it has not done so here.

Thus, while I cannot predict the outcome of this case, we must resist the urge to divide the court along ideological lines. There is simply more here than just another police shooting, and much more to the Ninth Circuit’s ruling than the “liberal overreach” of which it is often accused.

Travel Ban: No Longer in Beta

A few weeks ago, I analyzed the original travel ban, explaining the three ways in which it was unconstitutional, as well as what changes would enable a new ban to satisfy existing constitutional standards. Well, three weeks later, the Trump Administration finally got around to signing that new EO, and so I wanted to take the opportunity to compare my analysis with the final product. In sum, while the new ban goes a long way in tailoring itself to the Ninth Circuit’s issues with the original ban, its true raison d’etre might ultimately be its undoing.

In my initial article, I identified three ways in which changes to the ban would could come as close as possible to constitutionally curing it: 1) exempt current Green Card and Visa holders, 2) eliminate the exemption for minority religions, and 3) explain the rationale for the ban and/or tweak the countries on the list. The new EO basically does all of that,  or at least tries to, with the third area being the weakest, as I will explain below.

First, the new EO adopts the first two changes entirely. In fact, the new EO goes even further in avoiding due process issues by rolling out the EO’s restrictions over a week or two. In taking the above steps, the administration has basically immunized itself to Due Process challenges, which was the theory on which the Ninth Circuit relied entirely. Moreover, while the specter of a religious-based Equal Protection claim still exists – based on Trump’s comments on the campaign and the ban’s shoddily-stated justifications – a religious discrimination claim is severely undercut by what is now facially-neutral language in the ban. Unfortunately, the religious discrimination claim will likely be a tough sell. I will get to that in a minute.

The one area where the Trump Administration’s actions were puzzling pertained to the third area: explaining the rationale for the ban and tweaking the list of countries subject to the ban. The Administration did include in the EO a list of purported reasons why the ban is apparently necessary, and they did tweak the list by excluding Iraq. But any rational person can tell that they have issues here. After claiming in Ninth Circuit briefing that a preliminary injunction would harm America because we could not risk waiting even a week to implement the ban, the administration then abandoned its appeal and waited three weeks to implement a new ban. Then, of course, there is the minor detail (yes, that is sarcasm) that not a single American has died from a terror attack perpetrated by individuals emigrating from any of the countries listed in the ban. 

In fact, by excluding Iraq of all places – one of the two countries that are literally in the word “ISIS” – the Trump Administration has destroyed much of its good faith claim that the ban makes any sense in combating ISIS-backed terrorism. Moreover, now that they have jettisoned their reliance on the “Obama did it” rationale for the list of countries, the question becomes, what is the rationale for each country in this ban?  If not Iraq, then why Sudan? Why not Saudi Arabia? These are the questions that courts will presumably be asking the government, and I do not think that they have a logical answer as to why those countries remain in the ban and yet Iraq somehow won the First Impression Rose. Ironically, in “tailoring” the ban by eliminating Iraq, they may have weakened the basis for the ban entirely.

Ultimately, however, the ban is still on strong constitutional footing because the Trump Administration exempted anyone with current ties to America. This, as I explained in my original article, has the effect of lowering the applicable level of constitutional scrutiny. That is the key here.

Non-resident, un-admitted aliens possess no constitutional rights themselves. Kleindienst v. Mandel, 408 U.S. 753 (1972). As I explained, any constitutional challenge would come down to the question of whether the ban rested upon “a facially legitimate and bona fide” reason. Id. If so, then the courts will not look beyond that basis and will instead defer to the government. 

Ultimately, those with Equal Protection claims will seize on the “bona fide” language and assert that the travel ban is not bona fide and instead is intended to disfavor Muslim immigrants. In doing so, they would rely on Trump’s Muslim ban comments and the ever-shifting reasons given for this ban. That might be appealing to the Ninth Circuit, and it might even get potential Plaintiffs past a 12(b)(6) motion and into discovery. But it also might not win a preliminary injunction – which requires a “likelihood of success on the merits” – and it certainly will be very tough in the Supreme Court.

In conclusion, the new travel ban is much leaner and really requires any constitutional challenges to be fought on the government’s terms. As I said initially, while there might be nothing that could possibly save the travel ban, the new EO certainly goes a long way.


Hernandez v. Mesa: Come for the Mexican border shootings, stay for the drone warfare and cyber attacks.

The Supreme Court heard oral argument last week in Hernandez v. Mesa, a case about the constitutional rights of a Mexican teen, Sergio Hernandez, shot and killed by U.S. border patrol, while the officer stood in America and Hernandez stood just over the Mexican side of the border. There is no doubt that if Hernandez were American or shot on U.S. soil, then he would be afforded constitutional rights and could bring constitutional claims against the officer. But the fact that he was an alien, technically abroad, has led lower courts to find that Hernandez had no constitutional rights when shot, even if the force used was unwarranted, even though the officer stood on U.S. soil, and even though Hernandez stood just feet across the border. On the surface, this presents an interesting and important issue in and of itself. But what makes this case even more interesting are its ramifications extending well beyond just another shooting at the border. 

If the government ultimately wins this case, it will likely mean that the Supreme Court fears those ramifications more than it sympathizes with the family of the teen.


El Paso, Texas and Ciudad Juarez, Mexico straddle the Rio Grande river, and in areas where the river has run dry, a concrete channel, or culvert, separates the U.S. and Mexico. Through the center of the culvert runs an invisible border between the two countries. Sergio Hernandez, a 15 year old Mexican citizen, was playing in the culvert with a group of friends, taking turns touching the wall on the U.S. side and hurrying back to the Mexican side. One of the children was apprehended by a border patrol agent named Jesus Mesa. While the remaining boys fled to Mexico, Hernandez hid behind a pillar from an overpassing bridge, having physically crossed the invisible border back into Mexico. Agent Mesa then shot Sergio Hernandez in the face, killing him.  The two stood only 60 feet apart at the time. Video of the incident indicates that Hernandez does not appear to be posing any threat when shot and killed, and instead is merely peaking out from the pillar when shot.

Hernandez’s family sued the United States and Agent Mesa. After losing in the lower courts, the family petitioned for certiorari to the Supreme Court on two questions: 1) whether Hernandez’s 4th and 5th Amendment rights were violated, and 2) whether Mesa was entitled to qualified immunity, which provides liability to government officials if their conduct does not violate a “clearly established” constitutional right. In granting cert, the Supreme Court added a third question: whether Hernandez had a right to even sue in the first place, via what is called a Bivens action. Among the issues before the Supreme Court, whether the force used against Hernandez was justified is not one of them. Rather, even assuming that the shooting was unwarranted, does Hernandez have cognizable constitutional rights in the first place?


Among the pantheon of insufferable things said daily in 1L classes across our nation, “slippery slope” ranks pretty high up there. That and “ipso facto.” But this is a quintessential case where the slippery slope (Oh god, kill me) really does lead us to bigger problems than that with which we started.

Sure, when an agent fires a weapon from inside the U.S. and shoots an alien right at the border with no justification, we see inherent injustice in denying rights or remedies to the individual. But where do we draw the line?

What about when a U.S. sniper kills a drug cartel leader (or his innocent wife) 2,000 feet away?  Or when a drone operator in New York strikes the family of an al-Qaeda leader in Yemen?  Or, even more abstractly, when a member of U.S. Cyber Command remotely accesses and searches a family computer belonging to a suspected Russia-based hacker?

All of those issues involve U.S. government officers taking action against aliens abroad from within the United States, and yet in all of these situations we understand that the Constitution does not and should not apply. Clearly, if the Court were to issue a broad holding in this case, its application could go far beyond border shootings and implicate a litany of global national security concerns.

At oral argument, many of the Justices expressed their apprehension in ruling for the Hernandez family for this exact reason. Justice Kagan began questioning by asking what Hernandez’s proposed constitutional rule was. Chief Justice Roberts explicitly raised the specter of drones in Iraq being piloted from Nevada and appeared concerned that Hernandez’s proposed rule could not be “narrowly confined.” Even Justice Breyer, often cited as the most pragmatic Justice, pointedly questioned Hernandez’s counsel about how the Court’s holding in this case would be applied to other circumstances, and also echoed Chief Justice Roberts’ concerns about this case’s application to drone strikes. Critically, Justice Kennedy appeared to be quite hesitant to extend the right to bring suit against the federal government to aliens abroad. Later, however, during questioning of counsel for Agent Mesa, the four “liberal” members of the Court appeared to be sympathetic to Hernandez’s case and willing to ultimately draw a pragmatic line between this situation and the parade of horribles listed above.

Ultimately, like with many cases, the vote will likely come down to Justice Kennedy. In two prior cases involving the rights of aliens abroad, Boumediene v. Bush, 553 U.S. 723 (2008) and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), Justice Kennedy appeared to take a practical approach to determining whether the Constitution applied. Boumediene asked whether prisoners in Guantanamo Bay could file a writ of habeas corpus to contest their indefinite detention. Justice Kennedy, writing for a 5-4 majority along with the Court’s “liberal” wing, found that practical considerations dictated that the Constitution applied, even though Guantanamo Bay technically was located in Cuba, not the United States. In Verdugo-Urquidez, a Mexican citizen facing trial in the U.S. claimed that his Fourth Amendment rights were violated when the U.S. government searched his properties located in Mexico. The Court ultimately ruled that he did not possess Fourth Amendment rights, with Justice Kennedy issuing a concurring opinion finding that it would be “impracticable and anomalous” to apply the Fourth Amendment in that situation. In both cases, Justice Kennedy endorsed practical tests to determine the constitutional rights of aliens abroad.


Who wins this case ultimately comes down to what the Justices really feel this case is about.  I see a handful of different scenarios unfolding.

a. Shutting Pandora’s Box

If the Court sees this case as opening the door to a wide range of constitutional attacks on U.S. conduct abroad, then it is very unlikely to find for Hernandez. The Supreme Court is typically loath to issue broad, sweeping opinions, for the exact reason that presents itself here. Supreme Court opinions go beyond just affirming or reversing the lower courts, and instead include a holding and a rationale which will be extensively reviewed and applied by lower courts in situations much different than the specific facts of this particular case. In the words of Justice Breyer at oral argument in this case, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell, and it is exacerbated here. Unless a majority of the Court can forge a narrow consensus with a rule of limited applicability, then we can expect the Court to avoid finding for Hernandez. That the Court, on its own, added the question of whether Hernandez could even bring suit in the first place may signify that it wishes to give itself an “out” in order to avoid a big holding here. The Court could also simply split 4-4, in which case the government would win but the Court would not even issue an opinion; this would let the Court avoid ruling on these issues altogether.

b. Protecting Law Enforcement

Moreover, the Court could also see this as a qualified immunity case, which also would bode well for the government. This case involves qualified immunity in an excessive force setting, an area in which this Court has become increasing willing to enthusiastically expand in order to protect law enforcement officers. Qualified immunity protects government officials when their conduct did not violate a “clearly established” right. Many times in the last few years, the Court has reversed lower courts (often unanimously) when they have not sufficiently protected law enforcement officers in situations where the law was not conclusive regarding their conduct or the rights at issue. See, e.g., White v. Pauly, __ U.S. ___ (2017); Mullenix v. Luna, 577 U. S. ___, (2015); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015); Plumhoff v. Rickard, 572 U.S. ___ (2014).  Here, while the force used by Mesa was clearly established to be excessive, the constitutional rights of Hernandez – an alien abroad – are far from established. To find for Hernandez, the Court would seemingly need to find that qualified immunity hinges on whether the conduct of the officer was clearly established to be unlawful, not whether the right of the individual was clearly established. The Court may be extremely reluctant to issue such a holding, which would likely have the effect of narrowing the doctrine of qualified immunity. 

c. Punting Like Ray Guy

Alternatively, the Court could simply punt (and yes, I Googled “best punter” to come up with this heading). The government has math on its side, which the Supreme Court can use to avoid the hardest issues for now. Because the Hernandez family lost in the lower court, it needs five votes to win. Further, there are three issues before the Court, and the Hernandez family must win each one in order to win. If the Court rejects just one of these issues (or ties on any of them), then the government wins. The Court has a ton of outs here and could simply choose to leave this issue for another day with a full complement of nine justices. There are just many ways in which the Court might opt to avoid ruling on the big issues here, especially given the likelihood of a 4-4 split with no opinion being issued.

d. Sometimes a Cigar is Just a Cigar

Or, the Court might just handle this case at face value and rule accordingly, albeit with a limited holding that takes care to avoid other implications. This is an extraordinarily sympathetic case, involving an unarmed teen being unjustifiably shot at close range just over an invisible border. Further, the Hernandez’s family has argued that ruling for the government would implement an on/off switch for constitutional rights at the border, stripping Mexican citizens or their families of any civil remedies against the U.S. or its officers, who could then shoot Mexicans with impunity. As will be explained below, if Justice Kennedy lands on a limited holding with narrow applicability, then Hernandez has a great chance of winning.

e. Donald Trump

Similarly, this case could be about reining in Donald Trump’s aggressive stance on Mexico. The Court will be reluctant to issue Donald Trump and his self-described “deportation force” a blank check to incite violent confrontations at the border. The frequency of border shootings in the past decade was raised by Hernandez’ family in their briefs and was even raised in an amicus brief filed by the Mexican government in support of Hernandez. The Court’s cognizance of the president’s agenda and the possibility for unchecked aggression may lead it to limit future executive abuses by providing rights and remedies to Mexicans at the border.

f. Implementing a Practical Approach

Finally, this case may simply be Justice Kennedy’s opportunity to further implement a practical approach to the rights of aliens abroad. Justice Kennedy is the swing vote, and he has led the charge to center the constitutional inquiry for aliens abroad on practical considerations rather than bright line rules. If Justice Kennedy can determine a limiting principle separating this case from drone strikes and the like, then he may be very willing to issue an opinion conclusively adopting a practical standard for applying the Constitution for aliens abroad. 

Such an Opinion would presumably center on the “impracticable or anomalous” language adopted by Justice Kennedy in Verdugo-Urquidez. By using the particular facts of this case – the fact that the culvert is jointly maintained by both the U.S. and Mexico; that the incident took place entirely at the border, and an invisible border at that, and; that it simply would not be impracticable to apply the Fourth and Fifth Amendments in border shootings such as this one – the Court could carefully draw the line. As the petitioner argues in his reply brief, there is simply nothing “impracticable or anomalous about ensuring that border guards, in carrying out their law-enforcement duties on U.S. soil, adhere to uniform constraints on the use of deadly force.” The Court, if it applies Justice Kennedy’s framework, could easily adopt this reasoning.


I believe that the two most likely scenarios are either a 4-4 tie or a narrow win – in more ways than one – for Hernandez, but anything from 6-2 for Hernandez to 8-0 for the government seems to be within the realm of possibility. Ultimately, this case has potential as a judicial Rorschach test, with the justices each seeing the core of this case in their own way and ruling accordingly.


Trimming the Unconstitutional Fat From The Trump Travel Ban

​Much has been written about President Trump’s Executive Order (EO). This piece, however, reacts to the news today that the Trump administration apparently recognizes the flaws of the EO and has decided to craft a new EO designed specifically to withstand constitutional scrutiny. I will be setting out the three biggest problem areas of the original EO, and then will explain how amendments to address these areas would likely yield a constitutionally acceptable result.

​To do this, we will need to first address the weakest areas of the current EO, constitutionally speaking. The first is the inclusion of current green card and visa holders. The second is the explicit preference towards religious minorities. The third is a lack of any explicitly-stated connection to or tailoring of the ban to actual security threats to the United States. These aspects, in my opinion and in the opinions of many others, render the EO unconstitutional. However, if those issues are addressed, then the Supreme Court would likely hold that the EO as amended comports with existing constitutional principles. 

I personally think that the travel ban is wrong on many levels. But I am putting that aside, with the understanding that our country elected Donald Trump, and that he thus (unfortunately) possesses significant latitude in crafting our immigration policy and making national security determinations. With that understanding, here are the three biggest issues as I see them:

I.​ Problem Areas

A.​ Current green card holders and visa holders

​By applying this retroactively to visa holders and even green card holders, and by immediately rescinding their rights with no process whatsoever, the government violated the due process rights of these individuals. 

​As the Ninth Circuit’s Opinion explained (and from which I will quote from pages 20-21), the procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after traveling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). This, on its face, applies to green card holders, current visa holders inside the U.S., and visa holders attempting to re-enter the country.

​Those individuals are thus entitled to certain procedural safeguards before the government can rescind their immigration status. This typically requires notice and an opportunity to be heard, although the exact degree of process required for a visa rescission is perhaps an open question. Regardless, the EO provides no process whatsoever, and instead summarily rescinds all applicable green cards and visas. Those affected receive nothing close to an opportunity to be heard, and it is unclear whether they have even received notice that their immigration status has been rescinded, other than simply being detained at an airport and sent back to their country of origin. Clearly, this is unconstitutional as it applies to current green card holders, visa holders inside the US, and visa holders attempting to re-enter the US. Thus, by limiting the EO to only prospective applicants, the EO would avoid due process requirements for those affected by its restrictions.

​​B.​ Religious minorities

​Those who claim that the EO is not targeted towards Muslims seemingly forget the provision of the EO which allows religiously persecuted individuals to seek a waiver from the ban, but explicitly limits this opportunity to “religious minorities”. As it stands – and standing issues aside – this language runs a significant risk of running afoul of the First Amendment and the Equal Protection clause.

​The First Amendment prohibits governmental action that “officially prefer[s] [one religious denomination] over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). In Larson, which was cited multiple times in the Ninth Circuit’s Opinion and referenced during Ninth Circuit oral argument by Judge Friedland, the Supreme Court held that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions.  

​It is not difficult to conjure a scenario where a Muslim and a Christian – both facing the religiously-motivated terrors of ISIL – seek refuge from the United States, with the former being denied a visa and the latter receiving one, based solely on their respective religious beliefs. Indeed, ISIL’s persecution of non-Sunni Muslims is well known and impossible to ignore. Imagine a hypothetical majority-Jewish state where Hasidic Jews militarily overran the country and required strict kashrut observance or death. Surely, any immigration action permitting Christians into the United States but not reform Jews – who, after all, would be part of the religious majority – would be immediately understood as discriminating against Jews and favoring every other religion. The situation with the seven countries subject to the ban – the populations of which ranging from 95%-99% Muslim – is analogous.

​While President Trump may never be able to overcome his infamous calls for a Muslim ban (among other deplorable comments), his argument of facial neutrality is certainly undercut by the current language explicitly favoring non-Muslims. Thus, by excising this language, and by instead extending the religious-persecution waiver generally to members of all religious, Trump will make as strong a case as possible that this EO is generally applicable and not actually aimed at Muslims. As noted above, the Court might not buy that argument. However, given the deference shown by Courts to the President on immigration and national security matters (which I will explain below), this will likely be enough.

​C.​ Connection/tailoring

​The Trump administration’s failure to explain why the ban was necessary led to its demise in the Ninth Circuit. While the Court significantly defers to the executive branch on matters of national security, the government must ultimately give some sensical reason why the restrictions are necessary. The Supreme Court has repeatedly rejected the contention that the executive branch possesses a blank check in the spheres of immigration and national security. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001); INS v. Chadha, 462 U.S. 919, 940-41 (1983). The government can present these facts in open court, under seal, or in camera, but ultimately it has to present facts supporting its rationale.  

​Here, however, the government could not – and often refused to – provide actual evidence why the ban was necessary. For example, as is well-known, while the EO itself cites 9/11 as an impetus for the restrictions, none of the perpetrators of that attack were from the seven countries affected by the ban. Similarly, there is no reason given why the ban applies to absolutely everyone from these countries, from green card holders living in the US for decades, to infant refugees, to elderly visa holders, to dual-nationals.  Trump has claimed that he simply took those countries previously named by Congress and President Obama. But that previous instance involved Congress and  President Obama listing countries where applicants would then be ineligible for visa waivers and would instead be subject to a screening process. Under that process, those with no plausible connection to terrorists whatsoever (i.e. children, the elderly, etc.) would presumably pass this screening with much greater ease than others. However, here, Trump threw the baby out with the bathwater and simply banned everyone on the list entirely, regardless of any plausible connection to terrorism. Further, he did so without actually explaining why these countries are the ones subject to the ban. Thus, the EO is both over-inclusive and under-inclusive simultaneously.

​To fix this, Trump could do a number of things. For one, he could actually find and present evidence of terror threats from these countries. However, it appears that this evidence simply does not exist. Trump could alternatively simply limit the ban to certain countries that plausibly pose a bigger threat to national security than others. This may include adding countries to the list while eliminating others. Alternatively, he could exclude various classes of visas from the ban, for example, permitting those coming to the United States for education or similar programs.

​By doing this, Trump would be tailoring the restrictions to the actual threats while allowing others into the country. This would not only help him in his First Amendment/Equal Protection defense, but would also provide the Court with an easy way to maintain its deference to the president on national security matters.

II.​ What’s left, and is it constitutional?

​What would be left after these changes would likely survive constitutional scrutiny. Essentially, this new EO would only apply prospectively and not to those already with connections to the United States, would treat all religions neutrally, and would provide a facially plausible reason for the ban. This would likely pass muster with the Supreme Court.

​The key here is the removal of current green card and visa holders from the EO’s restrictions. By tailoring the EO as such, the government would essentially be eliminating those who themselves have constitutional rights, and it would thus be able to defend the ban using lower levels of constitutional scrutiny.

​The Supreme Court has repeatedly ruled that non-resident, un-admitted aliens possess no constitutional rights themselves. Kleindienst v. Mandel, 408 U.S. 753 (1972) (“It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.”). Thus, at best, individuals with mere connections to these visa applicants would have standing to sue (and even that is a tenuous proposition). These claims would presumably be made on First Amendment or Due Process grounds. However, these claims would in all likelihood be rejected, because the Court simply reviews these immigration-related claims with extraordinarily low levels of judicial scrutiny, particularly in the area of national security.

​In Mandel, supra, the Supreme Court weighed the national security interests of the government against the First Amendment interests of university professors challenging the visa denial of a foreign professor with no prior connection to the United States. In doing so, the Court stated that when a denial of a visa is based “on the basis of a facially legitimate and bona fide reason”, the courts will not look beyond that basis and will instead defer to the government. Id., at 770. In Justice Kennedy’s controlling concurrence in Kerry v. Din, 135 S. Ct. 2128, 2139 (2015), this principle was also applied to the due process context. Justice Kennedy stated that “[t]his reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.” Notably, while Justice Alito joined Justice Kennedy’s concurrence in this case, the three other conservative justices on the bench at the time went even further in their finding for the government, meaning that as long as the Trump Administration presents a facially legitimate and plausible reason for the ban, it will likely gain enough support on the Supreme Court to prevail.

​Should the new EO face a constitutional challenge, the government will likely be able to present a facially legitimate and bona fide reason for the EO, based on 1) the religious neutrality in the EO’s language and 2) the specific connection between the security threats and the amended scope of the ban. Given the  Court’s extreme deference to the executive branch in the area of national security, the Supreme Court is very likely to accept the government’s rationale for requiring this ban, as it has in past cases such as Mandel and Din.

​At the end of the day, President Trump might simply just be too stubborn to truly do what is necessary to trim the EO down to its constitutionally-acceptable core. As the travel ban stands now, I believe that it is plainly unconstitutional. However, unfortunately, by making the three simple changes as explained above, the travel ban would likely survive the Supreme Court.