PrawfsBlawg

Thursday, April 24, 2025

Today in Presidential Corruption News

Imagine that the political donations that rented the Lincoln Bedroom in the Clinton era were actually personal payments, made directly to the Clintons, and paid immediately, to bypass all the ordinary-political-corruption norms about waiting until someone is out of office to unfairly enrich them. Imagine that rather than reduce the income stream by limiting himself to one bedroom, Clinton rented out the entire, pre-tacky-gold-fixtures White House. And then imagine that to sweeten the deal, the President offered to personally service each of the guests. 

Welcome to your current president. His family memecoin business was already inherently corrupt. Then it was factored into the corrupt personal monetization of regime policy. And now, having found the initial windfall from the memecoin insufficient, and apparently too impatient for additional profits, Donald Trump is now--not to put too fine a point on it--whoring himself out more aggressively.

The flashy online announcement called it “the most EXCLUSIVE INVITATION in the World,” a chance to have “an intimate private dinner” with President Trump at his members-only golf club in Virginia, followed by a tour of the White House.

A seat would be reserved for each of the top 220 investors in $TRUMP, a cryptocurrency that Mr. Trump launched on the eve of his inauguration....

The effort was, in effect, an offer of access to the White House in exchange for an investment in one of Mr. Trump’s crypto ventures....

As news of the dinner invitation spread on social media, the memecoin’s price surged more than 60 percent, suggesting that investors were rushing to accumulate enough coins to qualify for a dinner seat.

“This is really incredible,” said Corey Frayer, who oversaw crypto policy for the Securities and Exchange Commission during the Biden administration. “They are making the pay-to-play deal explicit.”

A business entity linked to Mr. Trump owns a large tranche of the coins, meaning the president personally profits every time the price increases, at least on paper. Mr. Trump and his business partners also collect fees when the coins are traded, a windfall that amounted to nearly $100 million in the weeks after the coin debuted in January.

Of course, the president has already disbanded the DOJ cryptocurrency prosecution unit, and the SEC has already announced its desire not to stand in the president's industry's way.  His conflict of interest policy is less rigorous than Caligula's. And his law enforcement consists of the author of a children's book that, on a charitable reading, is a thinly veiled perverse fantasy about himself and the President. (But it wasn't an audition!) 

Why bother recounting the obvious? Four reasons. One, of course, is sheer anger at the bottomless pit of corruption that is Donald Trump when not surrounded by adult minders, and at his befouling of American institutions. Another is that it is so easy to focus on the many ways in which he is otherwise harming and dishonoring his office and the nation--his wreckage of the economy, his service as adjutant-general to Russia's quest for Lebensraum, his violation of law and legal norms, his wholesale violations of due process, his eagerness to rent out quasi-concentration camps abroad, his desire to lay waste to public health and encourage disease and death at home and abroad, the fundamental vulgarity, tackiness, sloppiness, and illiteracy with which he infects public office and public discourse, and so much more--that one can easily neglect his now-unrestrained personal vice and corruption. That would be unfair. We must take him for all in all. And all in all, this is a man who makes Idi Amin look like Mother Teresa. Third, given the ways in which policy and personal gain are intertwined in this regime, not just at one level but throughout a "unitary" executive branch that has pledged itself to his personal service in a branchwide violation of the constitutional oath, one must note again that denying this regime a presumption of honesty, sincerity, and regularity is no departure--why grant a presumption that every day is loudly refuted?--and granting it those presumptions would be a farce and a willful lie. Judges are obliged to be impartial to the parties before them; they are not obliged to be ignorant, or impartial about the rule of law itself.  

Finally, as has been wisely said, one must live up to the intrinsic integrity of the academic enterprise, particularly as it relates to the legal profession and public law. Integrity demands that one profess the truth. Respect for the rule of law, and a desire not to encourage a "disillusioned and cynical" view of the rule of law, likewise demands that one note total, blatant, vulgar corruption of the office, "without fear or favor" and without engaging in "tendentious" apologetics. Any "emphatic subscriber" to anything faintly resembling the "rule of law" recognizes this, sees this personalization of the executive branch for purposes of self-enrichment for what it is, and perforce must say so.    

I note, in passing but not without shame, that this is the man who invited himself to speak to an audience at the University of Alabama, and to whom the university half-capitulated by having him speak at an address prior to the commencement weekend. (And even in this, he could not stifle the impulse to engage in a narcissistic, self-idolatrous lie about it.) One hopes that, if the university was trying to buy his goodwill or at least buy off his always-threatened hostility, they tried to win the liberty of our own graduate student as part of the bargain, however corrupt such a use of power would be. 

Posted by Paul Horwitz on April 24, 2025 at 09:48 AM in Paul Horwitz | Permalink | Comments (0)

Tactlessness

I'll have more to say about my forthcoming book in the coming months. For now, I want to highlight one aspect of Justice Jackson's Youngstown concurrence.

A theme in the concurring opinion is that the President can, in practice, exercise unauthorized powers so long as they stop short of provoking a court case. Here are the two relevant passages:

"The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test."

"It is interesting to note Holdsworth's comment on the powers of legislation by proclamation when in the hands of the Tudors. 'The extent to which they could be legally used was never finally settled in this century, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised.'" [This is in Footnote 16]

The current Administration is not following this advice. The first Trump Administration presents an interesting contrast. Back then, the Executive was mostly bark. Tariffs were threatened but not invoked. Emergency powers were bandied about but rarely used.  But now prudence and tact have left the building. Thus, there are many judicial tests underway. And many of them will not go well for presidential power. 

Posted by Gerard Magliocca on April 24, 2025 at 08:24 AM | Permalink | Comments (0)

Wednesday, April 23, 2025

Statement from Jewish Faculty and Staff at Northwestern

The Statement with a frequently updated list of signatories is here.

Statement from Jewish faculty and staff at Northwestern University

As Jewish faculty and staff at Northwestern University, we write today to defend the values of academic freedom, pluralism and independence that animate Northwestern and undergird its commitment to teaching, learning, and research. We write to dispel misconceptions that are being wielded by outsiders to weaken the university and harm our students. The fact that U.S. government leaders are making unwarranted threats to our university and stripping rights from students, faculty, and researchers nationwide in the name of Jews is deeply offensive to us. We believe it should stop.

In announcing Title VI investigations of 60 universities, including Northwestern, the U.S. secretary of education spoke of “relentless antisemitic eruptions that have severely disrupted campus life for more than a year.” As Jews who walk the campus every day and teach in its classrooms, we can reliably report that this depiction bears little resemblance to life at Northwestern. Some of us have been disappointed at times by Northwestern’s response to campus events. We recognize that antisemitism is present on college campuses, as it is in the world. Yet a fair-minded assessment would reveal a faculty and a university administration committed to the education of our students through rigorous and respectful debate.

We come from different points on the political compass. We express our identities as Jews in myriad ways. But we are united by the conviction that our Jewishness must not be used as a cudgel to silence the vigorous exchange of ideas that lies at the heart of university life. To punish Northwestern financially or to limit academic freedom in the name of protecting Jewish students could itself spark antisemitism — and would be an injustice to those very students and an injury to American society at large.

Posted by Steve Lubet on April 23, 2025 at 11:21 AM | Permalink | Comments (0)

Tuesday, April 22, 2025

A Constitutional Bedtime Story

Justice Frankfurter was giving a talk to the Supreme Court's clerks about his philosophy of judicial deference. He told them that the lawyers in the Executive Branch took the same oath to the Constitution that they did and took the Constitution just as seriously as they did. How, then, could the clerks second-guess the decisions of their executive counterparts?

Justice Frankfurter left and was followed by Justice Tom Clark, the former Attorney General. One clerk asked: "Justice Clark--Justice Frankfurter told us that Executive Branch lawyers take the Constitution as seriously as we do. Is that true?"

"Of course not." Clark replied.

(Maybe it's not true. But it's a good story.)

Posted by Gerard Magliocca on April 22, 2025 at 08:39 PM | Permalink | Comments (0)

Should Statutory Interpretation and Contract Interpretation Be Harmonized?

I have posted a short forthcoming draft on SSRN, entitled Should Statutory Interpretation and Contract Interpretation Be Harmonized?  Here is the abstract:

This paper develops four case studies about how states have harmonized or separated their statutory interpretation regimes and their contract interpretation regimes.  After exploring the choices of Texas, Alaska, New York, and Alabama—all of which take different approaches to their lumping or splitting—the paper seeks to make state courts more aware of what their options are; to help states think about whether their commitments to formalism or contextualism make sense to apply in both domains; and to help them evaluate their meta-choices about whether to bring their interpretive regimes closer together or further apart.

 

Posted by Ethan Leib on April 22, 2025 at 04:16 PM | Permalink | Comments (0)

Do Not Confuse Unitary Executive Theory With Being Narcissistic, Corrupt, and Foolish

Imagine that you are the chief executive of a very large and diverse company that has not filed for bankruptcy multiple times. Assume that your goal is for the company to thrive, rather than for self-aggrandizement or self-entrenchment. How would you run it? If you established a committee to examine health problems at a major plant, would you appoint as its chair a new employee with only a BA in biology, whose most noteworthy past experience was practicing medicine without a license? If the company's CFO pointed out that a new initiative--say, reneging on agreements with your main suppliers--was having disastrous effects on earnings and depleting trust in the company, would you listen, or attack the CFO? When hiring, would you scrap your successful, stable, industry-standard set of hiring standards? If your company's largest divisions were headed by morons and desperately under-staffed with the upper management who might assist those morons, would you reorganize--or would you instead lavish praise on the morons, and assure shareholders and customers that it was no big deal? 

The answers to these questions are so obvious that you could even get a correct response from a law professor. Nor will it shock anyone, no matter their politics, that the Trump regime in the past couple of days has provided at least a hat-trick of wrong answers. Trump has declared his full confidence in Defense Secretary Pete Hegseth, who is obviously not competent to run his department and has fired or lost those who might help him. His State Department--and it must be said that this regime's approach all along has been to run State from the White House, while complying with Marco Rubio's apparently bottomless appetite for humiliation--is looking into eliminating the foreign service exam and replacing it with loyalty-based criteria that ignore any longer-term interest in having stability in foreign relations across administrations. And he continues to attack the chair of the Federal Reserve, with the result, if not the intent, of supplying visual learners with a precise chart of the level of confidence placed by the world in Jerome Powell versus Donald Trump:

And it's just Monday. [Okay, now it's Tuesday. The chart above now looks even worse and the regime's behavior on all of these issues has not gotten better. The challenge of this administration is that every day brings five new terrible choices and fifty new or newly revealed lies--for instance, Rubio's lie about a State Department overhaul--and its programmatic lack of transparency makes it difficult to track. Happily, its infighting and indiscipline, and the constant war over who can be closest to the throne, means it leaks like a sieve.]  

My point here is not to criticize Trump, at least not directly. (Of course he should be criticized for all these things, and for whatever he's done in the past week that we don't know about yet--not to mention the things it is harder to find out about, like whether Trump's cronies suggested to Warner Bros. Discovery that the best way to stay safe would be to emulate Jeff Bezos's Amazon and provide an in-kind bribe by paying a Trump family member. Although the two are inextricably intertwined, it is important, in the welter of regime actions that merely constitute terrible policy, not to forget the personal corruption.) Rather, it is to offer a reminder that none of this is synonymous with unitary executive theory. The two should be understood as different, although obviously closely related, matters.

It is absolutely true that the Trump regime has taken a broad view of unitary executive theory and pushed that position aggressively. (This Ross Douthat interview with Jack Goldsmith nicely lays things out.) And unitary executive theory has a lot to say about Congress's ability, had it the guts to do so, to rein in the regime's excesses. But once, under its auspices, the executive branch is viewed as operating top to bottom according to the president's design, this general architecture says virtually nothing about how the chief executive chooses to organize and manage his branch. The executive branch is a very large enterprise, with at least twice as many employees as Walmart, the largest private employer in the United States. Even (or perhaps especially) if one were to posit, wrongly, that Congress has nothing to say about how that branch is organized, the head of this unitary organization has no obligation to organize and manage it badly, to attempt to make every decision personally--or to make every decision personal, as this regime does. A decision to exalt personal loyalty over loyalty to the Constitution and over competence and experience; a decision to contract out key diplomatic jobs to a gormless real estate developer pal; a decision to let one's lieutenant in one's chief policy priority skip an actual chief of staff and rely on a close friend as de facto chief of staff: these and a hundred other choices are not necessary consequences of a belief in unitary executive theory. Rather, they represent Donald Trump's version of what it means to run any large enterprrise.

It's understandable that news articles and polemics often conflate the two. And it may well be that a unitary executive approach renders the executive branch especially susceptible to all these problems, especially in the absence of a backbone-possessing Congress and in light of the extent to which party politics, polarization, and an unserious legislative bench have laid waste to the hoped-for mechanics of Federalist No. 51. That concern should be taken seriously. Depending on one's interpretive methodology, these manifest problems may weaken the case for aggressive application of the theory. By weakening or eliminating many of the justifications for any presumption of regularity and constitutionality on the part of the executive, the executive branch's ongoing mismanagement certainly, in my view, counsels strongly in favor of more careful, forceful, stringent, and skeptical judicial scrutiny of this executive branch. But the mismanagement is not the same as the theory.

I'm not arguing for or against the theory. But perhaps those who do advocate for a unitary executive should turn their thoughts more closely, and their writing more explicitly, to the question of what sound administration should look like under a unitary executive, and what ethical and oath-driven principles should guide it. Perhaps the needed work right now is not in offering further historical detail on why the president may fire his subordinates, and more practical analysis, legal and otherwise, about why he is not obliged to, and should try to keep the smart ones and cut down on the morons instead of championing them. They might also offer more work on why the notion that the president possesses the full share of Article II power says nothing about whether any personal loyalty is owed to him by those subordinates. (It is not.)

Whatever the answers to these questions are, they certainly won't look anything like what we are living through. No executive of even marginal competence would run any large enterprise like this. The lawyers may supply the theory; but at every step of the way, albeit with a great deal of help, Trump is supplying the disastrous practice.

In all of this, there is one irony that under other circumstances would be delicious. It's not unfamiliar, since it helps define the difference between the first Trump administration and the present regime. It is this: As bad as things are, the reason they are not worse on a day-to-day basis is the presence of those long-serving, dutiful professional federal employees who have not yet been fired or forced out. Once again--this time over fierce resistance--Trump's best hope for avoiding the consequences of his own unfitness for office is the "Deep State."  

Posted by Paul Horwitz on April 22, 2025 at 12:39 PM in Paul Horwitz | Permalink | Comments (0)

Monday, April 21, 2025

FedSoc Webinar on the Weaponization of the Justice Department

Today at 11 a.m. Eastern time, the Federalist Society--lately the object of conspiracist rantings from White House habitue Laura Loomer, whose basic accusation that its patrons, by holding on to conservative views, are not personally loyal to Donald Trump differs from the core managerial and constitutional theory of the Trump regime only in its specifics but not in its "principles"--holds a panel titled "The Weaponization of DOJ?" Registration information is here. 

The question mark is of course unnecessary. Small and twisted minds beget small and twisted missions, and the primary mission of the ostensible leaders of the Justice Department, and the only mission of the man who is responsible for it, is vengeance against alleged enemies. (Although this appears to be more true of the White House and the FCC than of the DOJ, I imagine that if it has not already, it will soon add to its basic mission statement the corrupt exaction of financial and other forms of tribute, one of the few areas in which the Attorney General has expertise and experience.) 

I have meant for weeks to point out the necessity, for any lawyer, of watching or, if one can't stomach the visuals, reading the transcript of Trump's March 14 speech at and to the Justice Department. It seems silly--not un-lawyerly, but silly--to debate only the finer points of questions like, "Is the Trump regime lawless?" or "Is Trump weaponizing the DOJ?" when the president, in a regime devoted to the proposition that the president is the government and vice versa, actually stands up in the middle of Main Justice and makes clear that vengeance without justice is his goal. Around the time of the speech, I looked up past speeches delivered by presidents at Main Justice. Among them were speeches by Herbert Hoover, Harry S. Truman, Ronald Reagan, George W. Bush, and Barack Obama. None were terribly impressive, none were terribly objectionable--and none of them was steeped in filth, hatred, and paranoia at all, let alone in the way that Donald Trump's remarks were. No lawyer who is still a lawyer in any useful sense of the word, a lawyer can hear or read his words without visceral disgust and a renewed commitment to the defense of the rule of law against the chief executive who is its chief enemy. Not to put too fine a point on it: Trump's DOJ speech is a must-read in the same way that millions of decent people forced themselves to read Mein Kampf.        

Posted by Paul Horwitz on April 21, 2025 at 11:11 AM in Paul Horwitz | Permalink | Comments (0)

JOTWELL: Vladeck on LaCroix on Interbellum circuit justices

The new Courts Law essay comes from Steve Vladeck (Georgetown) reviewing Allison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalism (2024) on the role of circuit justices in the constitutional order during the Interbellum Period.

Posted by Howard Wasserman on April 21, 2025 at 09:31 AM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Clinical Fellowship Opportunity at Yale Law School

The Yale Law School Center for Private Law seeks applications for a Clinical Fellow in Private Law. The Clinical Fellow would also serve as the Director of the Private Law Clinic at Yale Law School for the duration of the fellowship. The fellowship will begin by August 2025 at the latest and extend over two academic years, with the possibility of renewing the post for a third. Pay and benefits will track the Law School's practices. Applications received by April 25 will be given priority.

The Fellow will work alongside the Center's director, Daniel Markovits, to teach the Private Law Clinic during the academic semester. Duties will include designing and co-teaching the weekly two-hour seminar, supervising students on a regular basis, helping select the matters the clinic will take up, and coordinating with outside attorneys on both the substance of the matters and the feedback they provide our students.

Throughout its work, the Clinic aims to deploy private law doctrines in the public interest and/or to apply useful ideas from legal theory to push for improvements to existing doctrine. By way of example, students may find themselves seeking redress for the victims of cryptocurrency scams, arguing for heightened tort duties owed to people with disabilities, or researching contract theories that can be used to combat exploitative or deceptive medical bills. In our seminar, we also tackle specific issues within private law doctrine and theory (e.g., the rights of third-party contract beneficiaries or the relationship between statutory and common-law tort liability). The details of the clinic’s docket and the topics covered in seminar remain somewhat open, however, and will depend on the Fellow's interests and expertise, as well as on student input. While an ambition to become a law professor is not required, the fellowship is designed to support someone who would like to move from practice into a university appointment, as either a clinical or an academic professor. In addition to co-teaching the Clinic alongside the Clinical Fellow, the Center's director will engage with the Fellow's research and academic work in the service of helping the Fellow to develop as a scholar and teacher. Applicants should submit a letter of interest and a CV by email to [email protected] and to [email protected] with the subject line “Clinical Fellowship Application.”

Posted by Ethan Leib on April 21, 2025 at 08:47 AM | Permalink | Comments (2)

Saturday, April 19, 2025

Erie

A Civ Pro student on Friday referred to the "relatively unhinged Erie choice." Best mistake I have heard in the classroom.

Posted by Howard Wasserman on April 19, 2025 at 01:32 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday Music Post - Born in Chicago

Paul Butterfield's iconic "Born in Chicago," the first cut on his first album, was written by Nick Gravenites (who was in fact born in 1938; but that didn't rhyme with "gun"). Along with Butterfield, Gravenites began hanging out in South Side blues clubs in the late 1950s, listening to Muddy Waters, Howlin' Wolf, Buddy Guy, and others. Unlike Butterfield, Gravenites did not become nationally well known, although he did have a moment with Mike Bloomfield in the Electric Flag. He also produced for Janis Joplin and other West Coast acts. He outlived Butterfield by 37 years, passing away in September 2024.

You can see Nick performing with some other Chicago blues musicians, including Harvey Mandel, Barry Goldberg, Sam Lay, and Corky Siegel  at The Faculty Lounge.

Posted by Steve Lubet on April 19, 2025 at 10:48 AM | Permalink | Comments (0)

Friday, April 18, 2025

Herbert Brownell's Papers

Sometimes I think about whether I should write another biography. One candidate would be Herbert Brownell. On the plus side, he was one of the more important Attorneys General during his service from 1953-1957. On the minus side, he was the co-inventor of the Bluebook. (That's a joke. Sort of.)

But here's where things get complicated. Brownell gave most of his papers to the Eisenhower Library. The covering memo on that gift explains that almost all of the papers related to civil rights were accidentally thrown away before the Eisenhower Library received them. The story was that Brownell gave the civil rights papers to someone to write a book. When she died, the family didn't know that the papers were important and  just tossed them. A book about Brownell without his civil rights papers doesn't sound too appealing, which may explain why nobody has written his biography.

This is a more common problem than you might think. Some of John Bingham's correspondence was also thrown away by the family of a private collector after the collector died. They didn't know that what he had was significant. The lesson here is that some library or archive should also serve as the custodian.

Posted by Gerard Magliocca on April 18, 2025 at 09:03 AM | Permalink | Comments (0)

"On the eighteenth of April, in Seventy-five"

"Hardly a man is now alive/Who remembers that famous day and year."

Yes, today is the 250th anniversary of Paul Revere's midnight ride:

One, if by land, and two, if by sea;
And I on the opposite shore will be,
Ready to ride and spread the alarm
Through every Middlesex village and farm.

Unfortunately, Longfellow's poem has now been banned in all K-12 schools and the military academies, because of the reference to Middlesex.

Posted by Steve Lubet on April 18, 2025 at 06:30 AM | Permalink | Comments (0)

Thursday, April 17, 2025

A Course on "The Legal Profession"

A million years ago, when I was in law school, I took a course, taught by David Luban, called "The Legal Profession" (which, thanks to some Yale Law School magic, satisfied a professional-responsibility requirement although it was not, at all, about "the rules" of P.R.).  We read Luban's Lawyers and Justice, Ishiguro's Remains of the Day, Galanter's Tournament of Lawyers, some books about the evolution of the profession and the rise of big law firms, a book about Skadden, and -- providentially for me! -- some articles by a fascinating scholar who would become my colleague at Notre Dame, Tom Shaffer.  And some other things.

I've long wanted to teach a class like this, i.e., a course that I could hold out as satisfying our P.R. requirement but that was really more about "Lawyers and Society."  Has anyone taken, or taught, a class like this?

Posted by Rick Garnett on April 17, 2025 at 02:10 PM in Rick Garnett, Teaching Law | Permalink | Comments (8)

Wednesday, April 16, 2025

State Ratifications and the Constitution

In my recent research, I was struck by the following point. When we look at the 1787 Constitution, we pay a lot of attention to debates in the states. This makes sense for many reasons. First, the Philadelphia Convention's deliberations were secret. Second, we have good records of many state convention proceedings. Third, we have The Federalist.

For the succeeding amendments, though, we pay almost no attention to state ratification debates. I wrote a book on the first ten amendments and learned that we know almost nothing about the state legislative debates on them from 1789-1791. In those days, state legislatures kept only bares-bones journals or minutes. The same goes for amendments 11 and 12.

For the 14th Amendment, we have only one detailed record on state ratification. There are transcripts of the debate in the Pennsylvania Legislature that look like The Congressional Globe. Perhaps this is also true for the 13th and 15th Amendments, but I've never looked into that.

On more modern amendments, the record is almost as sparse. Sometimes this is because the proposed amendment was rather simple. The 21st Amendment, for example, received virtually no scrutiny in those state ratifying conventions. None of them lasted longer than a day. In other cases the record is sparse because the state legislative records from, say, a hundred years ago are not detailed.

That said, I think that there is room for a scholarly project that gathers the state debates on the twentieth-century amendments. Maybe we'd learn something useful about, say, the 26th or 16th Amendments. 

Posted by Gerard Magliocca on April 16, 2025 at 07:57 AM | Permalink | Comments (0)

Tuesday, April 15, 2025

The Scope of the 26th Amendment

There is currently a circuit split on whether states can prohibit 18-21 year-olds from having a gun. (I used this as an exam question years ago.) One of the points made in support of those challenging these laws is that the 26th Amendment should be read as reducing the age of majority for all constitutional rights, not just voting. Put another way, 21 was the relevant age in 1791 and 1868, but not after 1971.

Acceptance of this argument would have broader implications. Right now the 26th Amendment is a one-trick pony. Ratification simply reduced the national voting age to 18. But if you read the text more expansively, that brings in the argument that laws discriminating on the basis of age in voting are suspect. Attacks on state laws that, say, give preferential treatment to older voters have thus far not succeeded on 26th Amendment grounds. But maybe they will in the coming years. 

Posted by Gerard Magliocca on April 15, 2025 at 08:13 AM | Permalink | Comments (0)

Censorship at Annapolis

Defense Secretary Pete Hegseth’s demanded purge of the Naval Academy library was not unprecedented. Roy Cohn pulled the same stunt in 1953, at the behest of his boss, Joe McCarthy, at State Department libraries across Europe. There is one big difference, however, although it is not very encouraging, as I explain in my new column for The Hill.

Here is the gist:

Hegseth’s ‘Big Brother’ book purge models the worst of McCarthyism 

by Steven Lubet, opinion contributor

The U.S. Naval Academy has had a library since the day it was founded in Annapolis, Md. in 1845. Its history had been one of steady expansion and wide inclusion until last month, when Defense Secretary Pete Hegseth ordered the removal of suspect books. 

Hegseth was not the first Republican figure to demand a library purge. That was the disgraced Roy Cohn, Sen. Joe McCarthy’s henchman and President Trump’s early mentor. 

Hegseth was, however, the first to insist that future military officers could be harmed by exposure to the wrong books. In fact, the most famous five-star general in U.S. history once took a decidedly contrary view. 

McCarthy himself promised to “pin down” those who were “directly responsible” for “placing the U.S. stamp of approval on a vast number of well-known Communist authors.” Predating Hegseth by 72 years, Secretary of State John Foster Dulles ordered the removal of many books “stocked in our libraries throughout the world.”  

In the meantime, Hegseth has earned for himself perhaps the best-known rebuke from the McCarthy era: “Have you no sense of decency, sir, at long last? Have you left no sense of decency?”

You can read the entire essay at The Hill.

Posted by Steve Lubet on April 15, 2025 at 07:47 AM | Permalink | Comments (0)

Monday, April 14, 2025

The New Yorker Ain't What It Used to Be

If it's okay to lighten the mood a bit, can there be any excuse for running this piece on the second day of Pesach (and it's not even funny):

Bagels, Ranked

Posted by Steve Lubet on April 14, 2025 at 03:30 PM | Permalink | Comments (0)

It's not the antisemitism, stupid (again and again)

I hope the silence from anyone in the Trump Administration about the planned (and more-serious-and-destructive-than-reported) assassination attempt against a Jewish governor--on Passover, several hours after a community seder--(finally) disabuses everyone that this administration cares about antisemitism as opposed to using Jews to attack ideas and people they do not like.

That Shapiro was the target provides a layer of irony--MAGA loved Shapiro last summer when pushing faux anti-antisemitism in arguing that Kamala Harris did not choose Shapiro as her running mate because he is Jewish.

Posted by Howard Wasserman on April 14, 2025 at 10:12 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)