Conservatives are from Mars, Liberals are from Venus

Prof. Kerr had a post at the Volokh blog the other day I took some issue with. It refers back to this earlier post, so you may wish to start there. The posts are about an immigration case, but more broadly about approaches to the law.

In short, there’s this alien from Haiti who is facing deportation. The man, Pierre, has a (self-inflicted) injury requiring constant medical attention, including a feeding tube. If he gets deported to Haiti, he’ll be thrown in a Haitian prison, where he will almost certainly not get medical care and will quickly starve to death. The law basically says that Pierre will be deported unless he can demonstrate that he would probably be subject to torture in Haiti. "Torture" is defined, essentially, as intentionally inflicted pain and suffering. So Prof. Kerr asked readers to decide — should Pierre stay or go ?

Perhaps not surprisingly, self-identified conservatives mostly voted to deport Pierre, and self-identified liberals tended to vote to let him stay. Prof. Kerr’s follow-up post tries to explain this result, with a long discussion about how liberals and conservatives view the role of judges. According to Kerr (who admits he is painting with a broad brush), "conservatives [are] more likely to think judges are bound by the law and liberals [are] more likely to think that the law is ambiguous and judges should do the right thing within that ambiguity."

But, this is, to turn a phrase, begging the question whether the law is in fact ambiguous. I think liberals can consider themselves bound by the law just as much as conservatives, but can also think that where the law is ambiguous, or legitimately capable of reasonable alternative interpretations, values like justice and fairness come into play. One can consider oneself bound by the demands of justice, after all. Sure, it sounds vague, but much of our system is — "equal protection" and "due process" are inherently ambiguous terms, for example.

Prof. Kerr’s construction pre-supposes that there is one true knowable "law," that conservatives consider themselves bound by it (regardless of whether it matches their policy preferences or notions of fairness), and that liberals are just willy-nilly inventing ambiguities. But even conservatives sometimes find the law ambiguous, and try to "do the right thing within that ambiguity." Justice Antonin Scalia, for instance, is a strong proponent of the rule of lenity in criminal law.

Now, what about Pierre’s case ? The "ambiguity" Prof. Kerr says liberals are trying to create is around the word "torture" — that the effects of Pierre’s treatment are sufficiently similar to torture that we should deem acts resulting in those effects to be torture, even if not intentionally inflicted. Sort of reading the mens rea out of the law, I suppose. That strikes conservatives as illegitimate.

But what if the ambiguity liberals find is instead in regard to the intent aspect, specifically the time when the intent behind the infliction of pain is relevant ? Let’s say Pierre’s captors lack an intent to have him starve to death, but at some point during his captivity, that result will manifest itself. At that point, one could say that the jailers’ continued refusal to treat Pierre is a failure to act in circumstances where that failure is so likely to lead to horrific pain and suffering that the jailers are committing torture by inaction. Under that standard, Pierre has probably shown he will likely be subject to torture if he goes back to Haiti. (It reminds me of the classic Torts class hypos about the duty to rescue or warn, and whether inaction can be a tort if one has a duty to act. If the jailers have a duty to not-torture Pierre, or a duty to take care of him, or a duty to avoid letting him die by starvation, maybe they are liable for knowing inaction that leads to his torturous death.)

Is that a reasonable interpretation of the statute ? I would say yes, even if it’s not necessarily the only interpretation. And I’m far from an expert on immigration law, so right now I couldn’t say whether it’s tenable. I don’t know if the caselaw or regulations define "intentional" in such a way that a knowing failure to act when one has a duty to act is deemed an intentional infliction. I suspect that, in the end, the answer is probably not, and as a judge I would feel bound to vote that Pierre has to go. But I don’t think it’s a slam-dunk case, and I don’t think there’s anything wrong with coming into the case with the idea that the law should try to do the fair and just thing if it can, and working from that premise.

My points are just that (a) I don’t think conservatives are the only ones who feel a sense of fidelity to "the law," and (b) liberals don’t always go looking to create ambiguities — often the ambiguities are right there in black and white. Very often, a conservative’s position that there is no ambiguity in the law is itself the result of a pre-existing policy preference. The notion that the immigration law Prof. Kerr quotes is not possibly subject to more than one legitimate interpretation — and that only conservatives are willing to say so, whereas liberals illegitimately make up ambiguities in an otherwise perfectly-drafted statute — is, in my opinion, fallacious.