UCLA Law Review Volume 54, Issue 6


Rethinking Immigration Status Discrimination and Exploitation in the Low-Wage Workplace

Popular discourse in the U.S. immigration debate often simply asserts that immigrants take jobs that native workers do not want. Though perhaps politically salient, such slogans overlook the complex interaction between employer preferences, immigration, and legal protections. Building on sociological research, this Comment explores the reality that many employers actually discriminate against U.S. workers in favor of immigrants, who, because of their vulnerable legal status and different social institutions, may be more susceptible to exploitation. While preferences based on immigration status itself—even distinct from race or national origin—are a significant basis for discrimination, there has been very little scholarship on this topic, especially from the perspective of U.S. workers facing discrimination. Curbing this discrimination against U.S. workers is important for both workers’ rights and immigrants’ rights advocates. Those U.S. workers facing discrimination are often at the bottom end of the pay scale and are most susceptible to living in poverty. Although preferences for vulnerable immigrants may seem to provide opportunities to people from developing countries, they also can harm those same workers because the jobs provided come laced with labor violations and poor workplace conditions that may make it hard for employees to improve their situations. Thwarting this discrimination also can promote diverse workplaces, which are necessary not only to limit exploitation of all low-wage workers, but also to foster ties between different groups and strengthen democracy. This Comment analyzes what remedies U.S. workers have for discrimination based on immigration status through evaluating three antidiscrimination statutes—the Immigration Reform and Control Act’s (IRCA) antidis¬crimination provision, Title VII, and 42 U.S.C. § 1981. Few cases have successfully defended U.S. workers from preferences for vulnerable immigrants. Though those successes have mainly been administrative challenges under IRCA, a comparative analysis demonstrates that Title VII or § 1981 may be better legal tools to remedy employment discrimination. Moreover, this Comment discusses ways to fight U.S. worker discrimination without harming vulnerable immigrants or creating a wedge between these sectors of the population. Bringing immigrant labor abuse claims and U.S. worker antidiscrimination lawsuits simultaneously is one approach for how to achieve this goal.

The Federal Government as a Constitutional Niche in Affirmative Action Cases

Although the U.S. Supreme Court has held that the same strict scrutiny standard applies to both state and federal affirmative action, federal courts often appear to apply a more deferential form of strict scrutiny to the federal government’s use of race. Analyzing the entire corpus of published federal court decisions between 1990 and 2003, I show that federal affirmative action laws are twice as likely to survive as state efforts. Moreover, lower federal courts commonly admit that they are giving unusual deference to federal actors or, alternatively, rely on reasoning that implicitly but effectively allows the federal government to use race in ways barred to states. I conclude that federal courts treat the federal government as a special niche when it comes to affirmative action, and I examine some of the reasons for, and implications of, this practice.

The Commerce Clause and the Myth of Dual Federalism

Despite its substantial theor¬etical flaws, dual federalism—the model of American federalism according to which the field of federal regulation is separated from the field of state regulation in a mutually exclusive (or close thereto) fashion—continues to attract sophisticated adherents. In this Article, I debunk the myth that the U.S. Supreme Court was ever committed to a dual federalist interpretation of the Commerce Clause from which it subsequently departed. Prior to the Civil War, the Supreme Court expressly embraced overlapping federal and state regulatory authority with respect to interstate commerce. And, even with respect to the Gilded Age between the Civil War and New Deal, the Court’s commitment to dual federalism was only nominal. The Court deployed the same terminology in reviewing federal and state commercial regulations and taxes, but its application of the doctrinal rules and its understanding of the underlying theoretical basis for the rules differed substantially depending upon whether it was federal or state action at issue. Understanding the Court’s rejection of dual federalism and the underlying reasons for it fatally undermines the historical argument for a return to dual federalism. At the same time, appreciating the full, nuanced history of the Court’s Commerce Clause jurisprudence provides a much needed historical context for assessing the current Court’s preoccupation with and approach to issues of commercial federalism.

Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror

Legal study of the institutions of national security decisionmaking has focused primarily on the allocation of authority between the president and the U.S. Congress to wage war. An overlooked gap within this framework is the strained relations between the U.S. civilian leadership and the military. The War on Terror has exacerbated these tensions—particularly with the Judge Advocate General’s (JAG) Corps. A rational choice framework is proposed to better address challenges to the civilian-military relations.

The Solomon Amendment, Expressive Associations, and Public Employment

Employment law commentators have paid insufficient attention to the Solomon Amendment case of Rumsfeld v. Forum for Academic & Institu¬tional Rights, Inc. (FAIR) and its discussion of the right to expressive association under the First Amendment. By failing to methodically analyze whether all law school constituents of the FAIR organization constitute expressive associations, the Court erroneously implied that both public and private law school members of FAIR may be expressive associations. This state of affairs will eventually be rectified given the strong constitutional structural arguments in opposition to such an interpretation. But such a modification should be accompanied by a unifying theory about how government efficiency concerns in maintaining core values and promoting certain messages should be balanced against the First Amendment rights of public employees to engage in protected constitutional activities. This Article fashions a coherent constitutional analysis for these public employment law cases by utilizing the Pickering framework and limiting the application of the Garcetti v. Ceballos government speech doctrine. This analysis discards the notion that the government employer has a constitutional right as an expressive association to disassociate itself from those it deems are promoting an antithetical message, focusing instead on whether the constitutional right of the public employee can be recognized without substantially disrupting the public employer’s enterprise.

Institutions as Legal and Constitutional Categories

Institutions and institutional categories pervade the world and pervade human thinking, but institutional categorization plays a smaller role in constitutional doctrine than might be expected. Although constitutional doctrine often uses categories of the law’s own making, and often draws distinctions based on the character of the act or (less frequently) the character of the agent who engages in some act, it only reluctantly provides for different constitutional rules for different social institutions. There are some plausible reasons for this reluctance, but most of the reasons turn out on closer inspection to be less sound than is commonly thought.

Revisiting Youngstown: Against the View That Jackson's Concurrence Resolves the Relation Between Congress and the Commander-in-Chief

Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown Sheet & Tube Co. v. Sawyer concurrence provides the correct framework for resolving contests between the U.S. Congress and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander- in-chief powers, the framework assumes that, as regards this overlap, lawful congressional enactments categorically trump the commander-in-chief’s contrary desires. After explaining that this assumption of “categorical congressional supremacy” (CCS) is a mechanism for sorting out conflicts that arise when two governmental institutions share overlapping power, the Article identifies five additional conflict-sorting rules that are found in other contexts in American law where governmental institutions have overlapping powers. With the understanding that Jackson’s concurrence in effect made a choice among several candidate conflict-sorting principles, the Article then explains why his opinion did not adequately justify the particular conflict-sorting principle it adopted. To be clear, the Article does not conclude that CCS is the wrong conflict-sorting principle, but instead makes the negative argument that the case has not yet been made as to what sorting principle should resolve conflicts between Congress and the commander-in- chief. The Article closes by identifying the type of analysis that has been relied on to select conflict-sorting principles in other contexts. The Article suggests that the same institution-sensitive, context-specific analysis should be used to decide whether CCS should be formally adopted, modified, or rejected.

What Federalism Tells Us About Takings Jurisprudence

This Article discusses a niche within a niche: Federalism considerations in theories of governmental takings of property. Several property and land use theorists have argued that larger-scale and smaller-scale legislative bodies should be treated differently in takings jurisprudence, because these differently scaled legislatures are likely to behave differently in dealing with individuals’ property and to respond differently to compensation requirements. I agree with this general proposition, but I sharply disagree with the centralist drift of most of this literature, which favors the national legislature while imposing strict takings requirements on local legislatures. I argue that these analyses overlook the existing constraints on smaller-scale governing bodies. Meanwhile, the courts have paid very little overt attention to federalism concerns of any kind in takings jurisprudence, string citing cases about local, state, and national governments without differentiating them. Instead of responding to federalism (and other) takings theories, actual takings jurispru¬dence vacillates between leniency toward all legislatures and contempt for them. I argue, however, that federalism considerations might help courts to analyze the legislative process, and they might be incorporated into takings jurisprudence by a distinction between Fifth Amendment and Fourteenth Amendment takings.

Students and Workers and Prisoners – Oh My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine

irst Amendment free speech doctrine has been called “institutionally oblivious” for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions—public schools, workplaces, and prisons—courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine— institutionally tailored government-deferential standards—rather than standard heightened scrutiny? Courts have given no real answer. This Article serves three purposes. First, it attempts a descriptive analysis of why courts might perceive a need to tailor doctrine to these institutions. The two main arguments are waiver and risk. The waiver argument is straightforward. Individuals in certain institutions made a free, ex ante choice to enter a setting with restrictive rules. The risk argument is somewhat more involved. Heightened scrutiny, by declaring speech restrictions presumptively invalid, risks erroneously allowing dangerous speech in institutions in which there is both high error cost and high error probability. Error cost is high if a court erroneously allows disrup¬tive speech in, for example, a prison prone to riots. Error probability is high because in these complex institutions, information costs are high for courts (so courts should defer to institutional judgments) and speech restrictions are warranted more often (so even a modest rate of error can yield a high number of errors). This risk analysis suggests that economics can help analyze constitu¬tional issues involving risk and error cost and probability. Second, this Article undertakes a critical analysis of the above arguments for institutional tailoring, finding several flawed or overstated. The waiver argument contravenes precedent (and so cannot be courts’ actual reason) and is based on exaggerated premises of free choice and foreseeable consequences. The error cost point is exaggerated because the government can often guard against harmful speech with monitoring rather than a ban. The error probability argument assumes high information costs of courts evaluating these institutions, yet courts regularly handle cases in more complex institutions. The waiver and risk arguments are exaggerated but not wholly unfounded. Both are stronger for prisons; and the waiver argument is stronger for workplaces than schools. This Article offers a typology of the strength of the waiver and risk arguments in each institution. Third, this Article proposes that speech law, like equal protection law, apply heightened scrutiny in all institutions, though with modest tailoring. Considering institutional context is good in moderation, bad in excess. By dividing speech rights so starkly by institution, courts have not recognized, but rather overstated, the uniqueness of schools, workplaces, and prisons—and allowed more speech restriction than is justified. This risk of exaggerating uniqueness is inherent to tailoring and should give courts pause before tailoring constitutional law. This Article concludes with a pragmatic proposal to scale back the tailoring of speech doctrine: Courts should apply intermediate scrutiny to speech claims in these institutions.

Compelling Interests/Compelling Institutions: Law Schools as Constitutional Litigants

This Article looks at the relationship between constitutional doctrine and institutional context by considering two recent cases in which law schools—perhaps the American institution most personally familiar to the current U.S. Supreme Court—appeared before the Court as litigants. In Grutter v. Bollinger, the Supreme Court upheld a law school’s use of race-conscious affirmative action in its admission process. In Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), the Court rejected law schools’ assertion of their right to exclude military recruiters. I suggest that both cases turned on the extrinsic function that law schools perform—namely, the production of a cadre of professional leaders—rather than their intrinsic function as educational institutions. And I also discuss the ways in which the Justices’ familiarity with law schools may have influenced the reframing of constitutional doctrine.

Faithfully Executing the Laws: Internal Legal Constraints on Executive Power

Since September 11, 2001, the Bush Administration has engaged in a host of controversial counterterrorism actions that threaten civil liberties and even the physical safety of those targeted: enemy combatant designations, extreme interrogation techniques, extraordinary renditions, secret overseas prisons, and warrantless domestic surveillance. To justify otherwise unlawful policies, President Bush and his lawyers have espoused an extreme view of expansive presidential power during times of war and national emergency. Debate has raged about the details of desirable external checks on presidential excesses, with emphasis appropriately on the U.S. Congress and the courts. Yet an essential internal source of constraint is often underestimated: legal advisors within the executive branch. On a daily basis, the President must engage in decisionmaking that implicates important questions of constitutionality and legality. Whether to seek congressional authorization before engaging in war, what limits to set (and respect) on interrogation techniques, when to publicly release information regarding security efforts–all are issues over which the President exercises enormous practical control, and all can profoundly affect individual lives and the course of history. This Article examines executive branch legal interpreta¬tion: How can internal interpretive processes and standards foster or undermine adherence to the rule of law? What may be gleaned from recent failures? How might the courts and Congress not only hold Presidents accountable for particular failures to uphold the law, but also encourage processes that generally enhance the quality of executive branch legal advice and decisionmaking? This Article takes as its principal example the Bush Administration’s interrogation policies. It considers past failures and, looking forward, what standards should govern the faithful execution of the laws. It builds upon a statement of Principles to Guide the Office of Legal Counsel, in which nineteen former Office of Legal Counsel lawyers set forth the best of longstanding practices in an effort to promote presidential fidelity to the rule of law.

Universities as First Amendment Institutions: Some Easy Answers and Hard Questions

First Amendment doctrine is caught between two competing impulses. On the one hand, courts and scholars face what one might call the lure of acontextuality. They seek a set of rules by which First Amendment law can be understood as a purely, formally legal phenomenon, untainted by the brute contingencies of the actual world. On the other hand, their efforts to construct acontextual legal doctrine are regularly disturbed by particular facts and contexts that fit poorly into existing doctrine. This tension between acontextual doctrine and factual variation has led to an increasing sense that First Amendment doctrine, in attempting to be pure and responsive at the same time, has become incoherent. This Article argues that one solution to this dilemma is to openly acknowledge, and make room in First Amendment doctrine for, an understanding of the impor¬tance of various “First Amendment institutions”—institutions that play a significant role in contributing to public discourse, and that are both institutionally distinct and largely self- regulating according to a set of internally generated norms, practices, and traditions. Under an institutional approach, these entities would enjoy substantial autonomy to make decisions according to their own best sense of their missions—as universities, the press, religious associations, libraries, and so on. Universities are one especially strong example of a First Amendment institution. In myriad ways, they play a special role in contributing to the broader world of social discourse that we value under the First Amendment. Moreover, they are institutionally distinct, bound by disciplinary constraints and governed by a host of norms and practices that substitute for external regulatory forces while still protecting fundamental speech values. Legal doctrine should recognize the special role played by universities under the First Amendment by largely deferring to these institutions and permitting them to govern themselves according to their own sense of academic mission, without government interference.

Free Speech Rights That Work at Work: From the First Amendment to Due Process

In the workplace, institutional context clearly affects the shape of constitutional rights. That is underscored by the U.S. Supreme Court’s recent decision in Garcetti v. Ceballos. In denying First Amendment protections to public employees when they speak in the course of doing their jobs, Garcetti gets it wrong; but the right answer to the Garcetti problem is not so obvious. This Article proposes a due process solution to the Garcetti problem that better accommodates the interests of employers and employees than any of the positions taken within the Court in Garcetti. Indeed, due process might provide a better framework for the larger universe of public employee free speech controversies. As compared to current law, with its all-or-nothing recourse to federal litigation, the broader but flatter protections of a due process approach would smooth out some of the troubling “cliff effects” and distortions that current doctrine creates; it would be more compatible with workplace structures and relationships; and it might afford more reliable free speech rights for employees. Whether the due process solution would work as hoped turns in part on whether it would prove too compatible with prevailing workplace norms and too deferential to managers to afford the protection that whistleblowers, dissenters, and the public need. This question echoes broader concerns about self-regulatory or reflexive models of modern law of which the due process solution is an example. The idea that institutions matter, and should affect the shape of constitutional rights, is likely to lead toward further institutional self-regulation. That is a perilous path unless we find ways of encouraging institutions to internalize public values and constitutional norms, while maintaining an external check on those institutions that reinforces rather than undermines effective self-regulation.