All Things in Moderation

Volokh Conspiracy readers may be interested to see videos of two panels I participated in at this year’s recently concluded Federalist Society National Lawyers Convention: “The Wisdom and Legality of Sanctuary Cities” and “Originalism and Constitutional Property Rights.”

In the sanctuary cities panel, I crossed swords with former Attorney General Jeff Sessions, among others, and explained why the Trump administration’s attacks on sanctuary cities violate constitutional limits on federal power, and have—fortunately—led to a long series of defeats in court, at the hands of both liberal and conservative judges. I also described why sanctuary jurisdictions have good policy and moral reasons for refusing to cooperate with some aspects of federal immigration enforcement, including the fact that involving local police in immigration enforcement undercuts ordinary law enforcement. Sanctuary jurisdictions are also justified in rejecting cooperation with federal deportation efforts, given the horrific abuses in its immigration detention facilities, and the government’s history of wrongfully detaining and deporting even US citizens.

At the property rights panel, I discussed and debated the original meaning of constitutional protections for property rights with distinguished takings scholars Tom Merrill (Columbia), Richard Lazarus (Harvard), and my George Mason University colleague Eric Claeys.  I argued that the original meaning of the Takings Clause requires judicial enforcement of tight limits on government power to take property for “public use,” a concept which should be given a narrow construction encompassing only publicly owned projects, while excluding most condemnations that transfer property to private parties. My talk was in large part based on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

On the property rights panel, I advocated what might be seen as a right-wing position (defending strong constitutional protection for property rights). On the sanctuary cities panel, I defended what is usually considered a  “left-wing” perspective on sanctuary cities. But, despite the seeming contradiction, I think there is actually an underlying coherence between the two positions: both advocate strong judicial enforcement of constitutional limits on government power, and both protect poor and vulnerable populations against the sometimes overwhelming power of the state.

Of course this year’s Federalist Society Convention will probably be best remembered for Attorney General William Barr’s seriously flawed speech extolling an extraordinarily broad theory of executive power. Among other things, he ignores the many ways in which executive power has grown far beyond the Founders’ design and argues for near-total judicial (and often also congressional) deference to the president on anything involving “foreign relations” and “exigent circumstances.” This is a misreading of the Constitution, and such deference has historically led to grave abuses of power. If time permits, I may have more to say on Barr’s speech later.

Filed under: civil liberties, Constitution, law, legal theory, Libertarians, Open Thread | Tagged: Kelo sanctuary cities Barr | 3 Comments »