Benitez v. Wallis: Brief of Law Professors as Amici Curiae in Support of Petitioner

This case addresses the due process rights of aliens in the United States who have been detained indefinitely pending final removal, because the United States is unable to deport them. Amici curiae are 24 professors of constitutional law, immigration law, foreign relations law, American legal history and federal courts at law schools in the United States. Amici have expertise in the constitutional law of the United States relating to foreign relations, immigration, and due process, and many have written about the due process principles raised by this case. The professional interest of amici is in ensuring that the Court is fully and accurately informed of the circumstances giving rise to the entry fiction that aliens in the United States are unprotected by the Due Process Clause in some narrow contexts, and the extent to which that doctrine has become fundamentally irreconcilable with this Court\u27s constitutional jurisprudence. Specifically, amici urge the Court not to reaffirm the decision in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), and urge the Court to hold that the removal power of the government, particularly when that power results in the indefinite detention of aliens with lengthy contacts with the United States, is meaningfully limited by the requirements of due process

States’ Duty Under the Federal Elections Clause And A Federal Right to Education

Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing various legal theories propounding that education be recognized as a protected “prerequisite” to established rights of voting, political participation, or citizenship. No such theory has gained more than momentary traction in the courts, unsurprisingly, given the oft-proclaimed axiom that our Constitution secures only negative rights.This Essay introduces a novel framework for considering this important constitutional question. The Elections Clause of Article I, which has largely been ignored, presents a promising foundational duty from which a “prerequisite” state obligation to provide public education might spring. The Elections Clause commands state governments to design and hold elections to select members of Congress. In this sense, states are already constitutionally obligated to establish the very edifice of representative democracy. Especially since the Court reminded in Rodriguez that the Constitution does not directly protect a right to vote, I believe this state electoral duty—which clearly does contemplate voting—offers a firmer foundation to which a state education duty might anchor than those other sources identified in Rodriguez or since. Moreover, the Elections Clause and related electoral duties debunk naysaying that the Constitution recognizes no affirmative rights or duties requiring state officials to act positively. And finally, focusing on state duties rather than affirmative rights invites creative thinking about judicial enforcement approaches, including some that might better fit federal courts’ remedial comfort zone. Other theoretical, doctrinal, and pragmatic challenges remain to be addressed, but my hope is that highlighting states’ affirmative electoral duty offers a fertile fresh start in this critically important constitutional discourse

Message from Dean Caminker

The following is an excerpt from the Dean\u27s remarks to the graduating class of 2005. (See commencement story on page 24.) A number of requests have been made for copies of the speech, so we have reprinted an edited version here

Schiavo and Klein

Part of Symposium: "The Schiavo Case: A Symposium