PrawfsBlawg

Friday, March 14, 2025

The Ford and Rockefeller Inaugurations

The tradition of vice-presidential inaugural statements ended with John Nance Garner in 1933. But in 1973 the speech returned in the special case of a 25th Amendment Vice President. Gerald Ford's inauguration got the full treatment. He was sworn in by the Chief Justice. The ceremony happened in the House before a Joint Session of Congress. And Ford then gave a speech. Nelson Rockefeller's inauguration a year later was similar, except his ceremony was held in the Senate.

Ford's inaugural speech was unique in that the audience knew that he could well be President soon. It was December 1973 and Nixon was in deep trouble. Reading between the lines, Ford was clear enough on this by saying things like: “Our great Republic stands solid and strong upon the bedrock of the Constitution” and “I pledge to as you, as I did the day I was first admitted to the bar, my dedication to the rule of law.”

Anyway, the full paper on vice-presidential inaugurals will be published later this year in Green Bag. I'll get it up on SSRN when I can.

Next week, I'm going to start a series of posts on my next book project, which will be about Birch Bayh's Senate Subcommittee on Constitutional Amendments. Part of what I did during my blogging sabbatical was read thousands of pages of Senate hearings so that you don't have to.

Posted by Gerard Magliocca on March 14, 2025 at 07:43 AM | Permalink | Comments (0)

Thursday, March 13, 2025

The Trump Regime Continues its Retrospective Celebration of 1798

I'm working on a longer post, but may I just note the news that the Trump regime is apparently preparing to invoke the Alien Enemies Act of 1798 in service of swifter and more draconian deportation of illegal immigrants, relying on tendentious assertions about "invasion." This cannot be wholly a surprise. And I will not find it a great surprise if and when the regime closes the loop and relies on the whole armament of the Alien and Sedition Acts and their descendants, to punish speech as well as status and to attack citizens as well as non-citizens. I wrote a week or two ago about Ed Warren, the gormless still-Interim U.S. Attorney for the District of Columbia, that his threats against members of Congress and others for engaging in constitutionally protected speech should not be treated merely as a gross misreading of true threat doctrine. Rather, they should be seen as

a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.

The regime can be relied upon to supply its own "emergency," of course. And a properly cowed and subjugated Secretary of State can be relied upon to offer whatever verbal formula is required.

If there is any comfort to be taken, I find it in two or three things: 1) The regime can be counted on to offer five or six justifications for its actions on any given day, even if they contradict each other and render the justifications incoherent and untrustworthy, and to careen wildly between enforcement and non-enforcement. 2) The more lawyers it fires, or who resign after being told to make bad or improper arguments that would violate their oaths, consciences, or law licenses, the worse things will go for it in the courts.* Opting for "loyalty" over competence and integrity is a costly choice. 3) The more it does, the more it says, the more pretextual or inconsistent or incoherent its arguments become, the more likely it is that at some point the courts--including the Supreme Court--will rethink any general presumption of deference to the executive branch, and reconsider any general or trending reluctance to scrutinize and second-guess the executive's motives, in both separation of powers cases and rights cases.

Law should not be remade for every new administration, and there are good general reasons for judicial deference to the political branches. But I'm reminded of a quote from Harry Kalven: "The Court thus has a hybrid role; and the arresting thing is that were its role to be purified in either direction--by having it become more simply a court and nothing more, or by having it become, bluntly, a political agency and nothing more--it would lose its power and its purpose. The special burden of the Court...is to exercise great political powers while still acting like a court, or if we prefer, to exercise judicial powers over a wide domain while remaining concerned, realistic, and alert as to the political significance of what it is doing." Even as a highly judicial body, the Court is not obliged to remain blind to the nature of this regime and its approach to the executive branch--both in its organization and in its exercise of power. Its reluctance to look behind presidential actions depended on its assumption of the existence of an "impersonal, thoroughly institutional presidency," sufficiently bureaucratized and staffed by capable individuals who provide internal constraints that its actions and good faith could be given some presumptive credence. But the Court exists in a dynamic relationship with the presidency and Congress. The faster, harder, and further the regime runs from a professionalized institutional model, the more likely it will be that the Court adjusts its assumptions and presumptions accordingly.* As it should. 

* Perhaps, in thinking about the legal presumptions of good faith that should or shouldn't apply and the necessity for a hard judicial second look at motives, the Justices and lower court judges will keep in mind the intersection between Trump's desire for an executive branch staffed only by personal loyalists and the blindly obedient, shorn of more independent-minded oath-keepers, and Elon Musk's typically off-putting vision of just who carries out historical atrocities, given that carrying out orders without questioning them appears to be exactly what this presidency wants from its servants:

 

Posted by Paul Horwitz on March 13, 2025 at 02:44 PM in Paul Horwitz | Permalink | Comments (0)

Andrew Johnson Gets Drunk and Admits Tennessee

Andrew Johnson gave one of the few memorable vice-presidential inaugural speeches. What made it memorable?

First, he was drunk. Words were slurred and repeated in a way that the official version cleaned up. At one point, he asked: "Who is the Secretary of the Navy?" The actual Secretary of the Navy wrote afterwards about Johnson's "rambling and strange harangue" that “was listened to with pain and mortification by all his friends." the outgoing Vice President, Hannibal Hamlin, had to tell Johnson that he needed to wrap up because it was past Noon and Lincoln needed to be sworn in.

Second, Johnson declared that his home state of Tennessee should be immediately readmitted to Congress. "It is the doctrine of the Federal Constitution that no State can go out of this Union; and moreover, Congress cannot eject a State from the Union. Thank God.” Thus, her “Senators and Representatives will soon mingle with those of her sister States; and who shall gainsay it, for the Constitution requires that to every State shall be guaranteed a republican form of government?” This, of course, teed up one of sharpest issues during Reconstruction; namely, could the ex-Confederate States be excluded and, if so, for how long?

Maybe the tradition of vice-presidential inaugurals wasn't so great. But next time I'll talk about how the custom was revived in 1973. 

Posted by Gerard Magliocca on March 13, 2025 at 01:15 PM | Permalink | Comments (0)

Kilborn v. UIC

Seventh Circuit holds that UIC Law Prof Jason Kilborn adequately pleaded a First Amendment retaliation claim where the school sanctioned him in response to student objections to tests and discussions of some race-related issues in class and to how he spoke about the subsequent controversy. (I wrote about the early days of the case--in 2021). Some noteworthy things in the opinion:

• Garcetti does not apply to a professor's testing and classroom speech or to out-of-class conversations arising from the controversy over his classroom speech. Academic speech is presumptively (if not per se) of public concern--engaging students on policy issues, giving them a taste of real-world controversies, and addressing controversies within a public institution, such as when it is ok to refer to racial slurs in classroom materials. The court declined to do the Pickering balancing at the 12(b)(6) stage. So we go back for discovery and summary judgment, unless the school decides to cut its losses.

• No qualified immunity on Garcetti. This is interesting. Pre-Garcetti, Connick/Pickering offered "qualified protection" for academic freedom . Garcetti left open (in a footnote and a Souter concurrence) whether it applied to academics and no Seventh Circuit precedent applied Garcetti to university classroom speech. Thus, "[b]ecause our pre-Garcetti cases clearly establish a right to academic freedom in this con- text, and neither Garcetti nor our more recent case law undermines that right," the right to classroom speech Kilborn alleges was beyond debate--pre-Garcetti precedent told UIC administrators they could not punish Kilborn for this speech and Garcetti did not suggest any differently.

This is a good result in the eye of someone (me) who hates qualified immunity. But it seems to flip the presumption--absent new law telling the university speech is unprotected, it should have understood that it was protected and thus not sanctionable. Implicitly, university officials were not free to apply Garcetti on their own or to anticipate Garcetti's application to classroom speech in the absence of contrary precedent. But QI usually goes the other way--the officer can act absent clear precedent that he cannot act. I think this case will make an interesting puzzle in the next edition of the § 1983 treatise.

• Defendants have QI on Kilborn's compelled-speech claim (based on having to go through diversity training). Barnette clearly establishes a right to be protected against compelled speech by the government as sovereign; it does not speak to government as employer. And whatever Janus said about compelled subsidies for unions does not resolve employers compelling employees to speak. In an essay a few years ago (part of a symposium FIU hosted on Barnette's 75th anniversary), I suggested that Garcetti could undermine or limit Barnette in the employment context, particularly in light of Janus. This opinion at least suggests that is an unresolved question in a damages action.

Again, note the inconsistency, which turns on different defaults. UIC was protected in reading Barnette and Janus narrowly and acting on the view that it could compel employee speech absent precedent saying otherwise; it was not protected in reading Garcetti broadly and acting on the view that it could stop classroom speech absent precedent saying otherwise.

• If it carries the day elsewhere, the court's free speech analysis protects university professors against state and federal efforts to stop DEI and other "woke" classroom speech. If the First Amendment protects a prof whose classroom speech (in the school's warped view) makes certain students feel bad or uncomfortable, it protects her when she (in the state's warped view) makes those students feel good or comfortable.

Posted by Howard Wasserman on March 13, 2025 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, March 12, 2025

Legislative Immunity?

How is this suit by a Maine legislator alleging she was stripped of her voting rights in retaliation for her anti-trans statements not barred by legislative immunity? She wants an injunction prohibiting the legislature from denying her vote or from ignoring her vote. This just seems obvious; what am I missing?

Posted by Howard Wasserman on March 12, 2025 at 09:53 AM in Howard Wasserman | Permalink | Comments (2)

Vice President Charles Dawes Makes A Monkey of Himself

Charles Dawes was an impressive public servant. He was one of the few Americans to win a Nobel Peace Prize. He was the first director of what we now call the OMB. He was also Calvin Coolidge's Vice President. In his 1925 inaugural address, Dawes decided to speak truth to power and call for the end of the filibuster.  The New York Times reported that Dawes wagged his finger at the Senate with a headline that included "Thumps Desk Vigorously." Here are some choice quotes: 

1. The filibuster was “subversive of the fundamental principles of free government” and “places in the hands of one or of a minority of Senators a greater power than the veto power exercised under the Constitution by the President of the United States.”

2. “Were this the first session of the Senate and its present system of rules, unchanged, should be presented seriously for adoption, the impact of outraged public opinion, reflected in the attitudes of the Senators themselves, would crush the proposal like an egg shell.”

3. “To evade or ignore an issue between right and wrong methods is in itself a wrong.”

Needless to say, this didn't go over well in the room. Chief Justice Taft wrote his son that Dawes "made a monkey of himself." And the filibuster lived on.

 

Posted by Gerard Magliocca on March 12, 2025 at 09:45 AM | Permalink | Comments (0)

Vice President Charles Dawes Makes A Monkey of Himself

Charles Dawes was an impressive public servant. He was one of the few Americans to win a Nobel Peace Prize. He was the first director of what we now call the OMB. He was also Calvin Coolidge's Vice President. In his 1925 inaugural address, Dawes decided to speak truth to power and call for the end of the filibuster.  The New York Times reported that Dawes wagged his finger at the Senate with a headline that included "Thumps Desk Vigorously." Here are some choice quotes: 

1. The filibuster was “subversive of the fundamental principles of free government” and “places in the hands of one or of a minority of Senators a greater power than the veto power exercised under the Constitution by the President of the United States.”

2. “Were this the first session of the Senate and its present system of rules, unchanged, should be presented seriously for adoption, the impact of outraged public opinion, reflected in the attitudes of the Senators themselves, would crush the proposal like an egg shell.”

3. “To evade or ignore an issue between right and wrong methods is in itself a wrong.”

Needless to say, this didn't go over well in the room. Chief Justice Taft wrote his son that Dawes "made a monkey of himself." And the filibuster lived on.

 

Posted by Gerard Magliocca on March 12, 2025 at 09:45 AM | Permalink | Comments (0)

Tuesday, March 11, 2025

Cowardice is the Through-Line

I cannot agree with something that Howard writes below. Among my extraordinary range of talents is the ability to walk and chew gum at the same time, while recognizing that of the two walking is probably more important. (It depends on the flavor of the gum.) So I'm not sure I get his point about "no one noticing" the enormous chilling effect on speech this administration is having "because people have been screaming about woke college students for so long."

For one thing: People notice! Most certainly including the same people Howard seems to suggest are benighted. They are fully capable of engaging in some version of "screaming about woke college students" while also believing--and saying--that the the use of state power generally is more worrisome than the threat of some moron in a North Face balaclava shouting "Go back to Poland" or blocking a public thoroughfare. Indeed, even in the interregnum between the first Trump administration and the present Trump kakistocracy, some individuals who were concerned about unhealthy exercises of private and mob power in public discourse not only charged that Donald Trump and other "forces of illiberalism" pose "a real threat to democracy," but warned that extreme or illiberal tactics on the part of those "woke college students" would be easily exploited by "right-wing demagogues." (Not that it took a genius to predict this. But then, it hardly took a genius to work harder to forestall it. And despite the obviousness of the point, any number of people, some of them college students, along with one or two candidates for president, spent most of either or both of 2020 and 2024 either not seeing it, or demonstrating by word and deed that they didn't care.)   

The same people are not only capable of believing that abuses of state power can be and generally are worse than abuses of private power. They are also capable of believing, and saying, that the particular uses this regime is making of state power are more worrisome than the average speech-chilling abuse of state power by the average Democratic or Republican administration, because they are more widespread, more lawless, more corrupt, more political, administered by more servile and incompetent hacks, less interested in paying lip service to existing law, and so on. It's not a question of "real" and, one supposes, "fake" chilling effects, but of bad and bad-plus-dangerous. It is possible to believe that both private actions and state actions can damage public discourse, but that state action doing so is more worrisome. Indeed, unless one wants to use state power to regulate those private actions, "screaming" about private behavior that chills speech or distorts discourse is precisely what one is supposed to do; in the case of state action, one screams--but one also sues and votes and lobbies.   

With respect to the universities, there is one sense in which the two unequal things--the use of "woke student" power and the corrupt exercises of state power--are  connected: the cowardice of universities in the face of both. Despite the many university administrators who did in fact support or give a pass to illiberal conduct for ideological reasons, I tend to believe that at the very top, the determining factor was cowardice far more than ideology. Universities treaded too lightly too long in the face of frankly illiberal conduct, often unlawful and generally disruptive of universities' ability to carry out their core missions, not because they were all in for Hamas or whatever the cause of the moment was (and the cause was more sympathetic in 2020), nor because they were trying to bend over backwards to protect First Amendment rights. Rather, they did it because universities are corporate enterprises that deal with both internal forces and external competition. They generally prefer not to rock the boat. They worried about blowback from faculty and other on-campus constituencies, and about alienating a small but select slice of the current or prospective student body, in a market that is always competing for students, rankings, and reputation. Privately, or so my experience suggests, university officials could be scathing about the student organizers they were dealing with, as well as those off campus who often used them as stalking horses. But they worried that any firm early steps would just lead to escalation. And they worried too about the calls and headlines they would get if they started suspending or expelling students, not to mention the ones they would get if--as is sometimes fully consistent with a university's duty, especially when some of the individuals impeding the university's operations are non-students and others are students who mask themselves to avoid being identified and disciplined --they called in the police to make arrests.

They were right to be nervous. Students wreaked havoc when their fellows were expelled. Students and faculty complained when students who were disciplined for disrupting university events realized that multiple suspensions might actually affect their visa status. Being students and faculty, they complained about everything. And although I lack sympathy for the students, one can see why they were surprised. Having first timorously underenforced their own rules, both in 2020 and 2024, the universities, after coming under pressure from various external forces including Congress, ramped up enforcement drastically and sometimes unevenly in a very short time. From my perspective, both the laxity and, when it finally came, the more draconian enforcement were equally motivated by fear. One understands that large institutions should act prudently. But to call all this "prudence" is an undue compliment. 

It thus can't be surprising that the universities are now offering statements in response to the current regime's law-adjacent crackdown that are milquetoast at best and at worst servile. (Servility, the status of a mere "subject," and "ritual self-abasement" being the things this regime desires above everything but money, from its Manchurian Cabinet all the way down to we poor suckers who just live here.) It certainly helps that the regime will punish universities without any clear goals, limits, instructions, guidelines, or guardrails, and that it is more than willing to take revenge on anyone who questions it. And it helps that the universities, along with every other institution in American life, have come to rely on the infusion of massive amounts of federal money and taken for granted the significant strings that are attached. It's not true that Columbia doesn't care about civil liberties. But, like other universities, it cares even more about being decimated. 

Beyond that, though, one important reason why universities have offered a cowardly response is that they have been trained for it. A university that has spent years afraid to utter simple, fully free-speech-respecting phrases like "pack up your stuff after 5 p.m.; you're not sleeping on the lawn" or "stop occupying this office or I'm calling the cops"--both things it should be saying as a matter of course--is hardly going to be habituated to telling a vindictive, force-wielding, semi-arbitrary political/law enforcement regime to go to hell, or that its job is to maintain order on campus, not to get rid of people with lousy ideas.

For Howard, the current moment demonstrates the folly of ever having treated private threats to a well-functioning free speech regime as serious. To me, it demonstrates that institutions that fall out of the habit of standing up for themselves in response to smaller problems are unlikely to find the backbone to deal with graver ones. 

 

Posted by Paul Horwitz on March 11, 2025 at 04:23 PM in Paul Horwitz | Permalink | Comments (0)

Impartial Vice Presidents

A recurring theme in vice-presidential inaugural addresses was "impartiality" in handling Senate business. One compared his role to a Supreme Court Justice, in holding that both should be free from partisanship. Another said that the Vice President was a symbol, almost like King Charles III, who stands above politics.

So obviously this is not how vice presidents are seen now. In part, this is because vice presidents exercise influence in the Executive Branch in a way that was not true for much of our history. (George Washington, for example, rarely consulted his vice president, John Adams.) Vice Presidents also spent more time presiding over the Senate in the past and thus did function more like the modern Senate parliamentarian.

Does this mean that all vice-presidential inaugurals were boring? Not the ones by Charles Dawes and Andrew Johnson. More later.

Posted by Gerard Magliocca on March 11, 2025 at 03:12 PM | Permalink | Comments (0)

Trump v. the ABA accreditors

AG Bondi has indicated in no uncertain terms that the ABA’s accreditation authority is in peril so long as it maintains what she describes as its DEI requirement. The long-standing diversity requirement has been under serious scrutiny over the past several months, driven by the Supreme Court’s recent affirmative action case and, one might speculate, the tenor of the times. In a previous post, I encouraged the Council of the ABA Section on Legal Educations and Admission the Bar (the real authority in accreditation, although often confused with the “big” ABA) to continue their initial path of reconfiguring this requirement, and in a way that would accommodate multiple interests and would, frankly, fix what had become to all honest observers, a de facto diversity faculty and student mandate — and one without the sort of mechanical head counting that was hard to implement and hard to maintain under current law. My advice went unheeded (hey, it happens) and under the pressure of many deans who encouraged the Council to vehemently resist anything they viewed as retrenchment, they retreated from their efforts and have essentially kicked the can down the road.

Now they are in a real jam. The DoJ will press hard to get the diversity mandate eliminated entirely. The room for compromise on language and structure is rapidly closing. And AG Bondi’s unmistakable threat is that the federal government will use all available authority to eliminate the ABA’s historic role as law schools’ accreditor.

Here’s the kicker in all this: The determination of which students may sit for the bar is made by the states and the states alone. That the ABA has a role that law schools care about is entirely the result of the choice made by state authorities to rely on the ABA to determine which law schools are OK and which are not OK, or more to the point, which have graduated students who are worthy to sit for the bar and complete the other requirements necessary for admission and which aren’t. Interestingly, a handful of states, most notably by its size California, does provide a pathway to students who have not attended an ABA-accredited law school or, under some fairly elaborate conditions, students (think of our nation’s most famous would-be lawyer, Kim Kardashian) who have not attended law school at all.

You can see where I am going with this. Even if the Trump administration is completely successful with its scheme to remote the ABA as law school accreditor, this does not necessarily leave law students in the lurch. Rather, state bar authorities, whether as a stopgap measure or as a full response, could “rescue” law schools from the big punitive measures of the DoJ by deeming graduates of all law schools previously (measured by some period of time perhaps) accredited by the ABA to be qualified to sit for the bar. In other words, the ABA’s accrediting authority is only powerful to the extent that state decisionmakers give them this authority. Note that has loomed in the background of longstanding critiques of how the ABA has used its accrediting power. But my point here doesn’t rest on these critiques. Instead, it suggests that a totally defanged ABA doesn’t jeopardize the functioning of law schools except insofar as state justices and their authorities to whom they have delegated power have themselves put these law schools in jeopardy.

And let’s take this argument one step further: If state bar authorities were to believe that some commitment to diversity, expressed in the ways they believe are both sensible and legal, were important, they are free to come up these requirements and insist upon them as a condition for law schools to function as “acceptable” educators of students. In other words, they could do the hard work of accrediting law schools on their own initiative. I suppose we could imagine a world in which the federal government thought that it had appropriate legal authority to boss the states around in this arena, but I firmly believe that this would be a constitutional federalism bridge too far. And, in any event, Congress is more likely than not, even in an era of white-hot MAGA, to leave the sleeping dog of displacing state authority in lawyer and legal services regulation, lie.

We have gotten from there to here, to be sure, because states by and large trust the ABA to do the accrediting; or maybe we have gotten here in no small part because states do not want to do this hard work. But what the Bondi invective and relentless threats open up is the possibility that something different — something better? — will emerge from the ashes of the ABA’s accrediting history.

I add my caveat here at the end, rather than at the more-typical beginning; I do not in any way root for this Trump/Bondi outcome. Warts and all, the ABA Council has functioned as an honest broker so far as law school accreditation is concerned, at least on the whole. I have had my strong criticisms, often expressed publicly, with particular ABA decisions and non-decisions and so there is no space on the wall where I anticipate putting any award from that group anytime soon. However, I applaud the energetic, well-intentioned lawyers, judges, and educators who have, over many years, devoted their energies to improving the quality of legal education in the U.S. I highlight the “less than meets the eye” element of the Trump administration’s jihad against the ABA just to say that legal education and the process for the admission of lawyers can and ought to be resilient in the face of these threats. The immediate future in this space at least need not be a bleak one.

POSTSCRIPT:  Someone on LinkedIn (I don't have his permission to identify him, but you can look it up on my LinkedIn post) made the good point that there is more to the ABA accreditation change than bar admission.  For example, freestanding law schools who lack an approved regional accreditor may be left out in the cold.  And there may be financial aid consequences to students.  All of this suggests that (many) law schools should be wary of this potential change in any event.

Posted by Dan Rodriguez on March 11, 2025 at 02:51 PM in Daniel Rodriguez | Permalink | Comments (1)

Monday, March 10, 2025

New York Gov. Hochul Suppresses Palestine Studies Job Announcement

My new essay for The Hill addresses New York Gov. Kathy Hochul’s suppression of a Palestine Studies job announcement at Hunter College. I explain that Hochul was wrong to intervene, but that does not absolve the job posting’s blatant anti-Israel bias.

Here is the gist:

New York is walking a thin line on Palestinian Studies

Hochul had absolutely no business demanding the removal of the Hunter College job posting. Political interference in curriculum is an unwarranted violation of academic freedom.

 Hochul’s intrusion aside, was the job posting as “divisive, polarizing and inappropriate” as the administration claimed? 

Taken individually, the listed subjects — including settler colonialism, apartheid and genocide — can be significant areas of inquiry in Palestine Studies.

In combination, however, the list comprises a distinctly political agenda, as though the sum of Palestine Studies consists only of Israel’s purported crimes.

Lest there be any doubt, the emphasis on “public-facing” work is clearly a thinly coded call for activism.

The concatenation of accusations against Israel, and the absence of anything denoting scholarly objectivity, communicated the intended message that successful applicants will be expected to engage in anti-Israel advocacy.

Hochul was just wrong to intervene in Hunter College’s curricular decision. Period. Nonetheless, the job posting itself sent an unmistakable political signal that “public facing” hostility toward Israel was a requirement for the position.

You can read the full essay at The Hill.

Posted by Steve Lubet on March 10, 2025 at 12:30 PM | Permalink | Comments (0)

Moynihan on real chilling effects

Don Moynihan (Michigan, Public Policy) on government chilling speech in real and meaningful ways but no one noticing because people have been screaming about woke college students for so long. It captures most pieces of the current free speech crisis in one space, missing only Columbia and the ADL surrendering any pretense to caring about free speech and civil liberties.

Posted by Howard Wasserman on March 10, 2025 at 12:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Vice Presidential Inaugural Addresses

I have a couple of research projects ongoing, but let's start with the quirky one. Vice Presidents used to give inaugural addresses. The last one was by Nelson Rockefeller in 1974. Why did they end? What were they like?

Until the Twentieth Amendment was ratified, vice-presidents were typically sworn in before the Senate. The Vice President would then give remarks to the Senate as the incoming presiding officer. The custom was irregular. John Adams did one in 1789, but not in 1793. Jefferson gave one in 1797, but then there was only one more until 1841. From 1857 to 1933, though, every Vice President or Vice President-Elect gave an inaugural address to the Senate.

After the Twentieth Amendment was ratified, vice presidents took the oath right before their presidents. This did not happen in the Senate, and so the tradition of vice-presidential inaugurals was lost. The exceptions came in 1973 and 1974 when two vice presidents were appointed under the 25th Amendment. They were sworn in by the Chief Justice before a Joint Session of Congress and gave a speech there. Presumably this would be the ceremony the next time we have an appointed VP.

What did most vice presidents talk about in their inaugurals? That's the next post. 

 

Posted by Gerard Magliocca on March 10, 2025 at 11:50 AM | Permalink | Comments (0)

Sunday, March 09, 2025

They're More Than Just Hoops or They're Nothing at All

David Bernstein writes of the administration's apparent decision to cancel $400 million in federal grants to Columbia University, "I don't know whether this is lawful, or whether federal law requires hoops to be jumped through before such sanctions can be levied," but does not think arguments about the government's actions are usefully conducted by minimizing or denying any problem with antisemitism on that campus. That sounds right to me. But I am very concerned about those "hoops!" David does not say otherwise, to be sure. (Indeed, this post has less to do with any agreement or disagreement with him, and more to do with the fact that his post encouraged me to write out my own thoughts.) I just think it deserves much more emphasis. 

The current regime, unfortunately, seems to mistake loudness, terminal-online-ness, and never-shutting-up-ness for actual transparency. In the case of these cancellations, it has at least provided a press release trumpeting its action. The press release contains fairly standard-issue pomp. If anything, it is relatively mild by this regime's standards. Unsurprisingly, the RFK Jr. quotes in the general press release of a few days ago are closer to the regime's usual rhetorical pitch. I might note that although RFK is right to liken anti-semitism to "history's most deadly plagues," it does not reassure me to think that the administration has sent RFK Jr., of all people, to address any sort of "plague." Dealing with plagues is not really his strong suit--regrettably, given that for some reason he is the HHS secretary. I'm surprised he didn't recommend that Columbia try Vitamin A and cod liver oil. I am not surprised, given his involvement, that one of the grants allegedly identified for cancellation is "related to the possible development of a malaria vaccine." That does seem on-brand for Kennedy. Why the HHS secretary should be involved in oversight of campus speech and funding issues in the first place is yet another question. In any event, neither press release offers much by way of directly useful information. 

The press release announcing the cancellations does not specify the grants being cancelled, the basis for cancelling those grants in particular, the statutory or contractual basis for doing so, or anything else of real use. Nor does it link to any documents doing so. The executive order that launched the current enterprise provides no further useful detail on this point either. One expects reasonably fatuous generalities from any administration. But the lack of detail is, I venture to say, of special concern in a non-grown-up administration that, even when it does the right thing (as it sometimes does), does it erratically and is fueled by ressentiment, bile, petty ambition, and Twitter. (But I repeat myself, as the phrase goes.)

You may assume for present purposes that I think Columbia, among other schools, has a real problem with anti-semitism and an even clearer problem of failing to enforce basic disciplinary rules on campus. That still does not answer some important questions--"hoops," if you like. Was yesterday's action the result of anything Columbia has failed to do in the last week or month--or just something the regime was going to do anyway? Was the pathetic behavior of a Barnard administrator last week a contributing factor, or just a nice news hook for the regime, given its thoroughly online mentality? Does the administration have anything like a clear idea of what constitutes an "illegal protest" as opposed to an offensive but protected one? (It has some experience with "illegal protests," to be sure, but not of the confidence-building variety.) The administration has named other universities as targets of attention. Were they chosen for legitimate or illegitimate reasons? Will they be penalized similarly, and regardless of what they actually do? The press release certainly suggests the answer is yes. For any stage of this administration's actions--selecting universities to investigate, deciding what questions to ask and what university rules and actions to review, deciding what grants to cancel, deciding what universities should be doing, deciding whether or when grants should be resumed--are there any clear, rational criteria that respect both existing laws and regulations and the Constitution itself? Or are this administration's enforcement decisions, or at least those not tied to donors, basically a Magic 8 Ball with a cudgel and a loudmouth attached to it? 

Should those of us who are disturbed by anti-semitism on or off campus be encouraged by the fact that this literally constitutes "action?" Or should we instead (or also) be disturbed by the fact that--as with tariffs, the Russian invasion of Ukraine, prosecution of public corruption, crypto and securities law enforcement, the treatment of law firms, and so on ad nauseam--the "action" in question is not targeted to any clearly voiced goals or policies, let alone clearly voiced positions on the limits of or constraints on those policies, and can seemingly be wielded and withdrawn on a whim? This approach of course lends itself on the one hand to arbitrary and purely political punishment (or the withholding of punishment), serving goals that are at best purely partisan and at worst involve petty personal revenge as well as gross corruption. On the other hand, it lends itself to the risk that any actual commitments to addressing anti-semitism will be subject to the vagaries of individuals with infantile attention spans and an abiding need to be flattered and appeased (and to appease in turn).

In a regime with this particular management style, I can think of only one person to ask for answers to any of these questions. Unfortunately, that person has a lousy reputation for honesty or consistency in word and deed. 

There are of course many people who revile anti-semitism, and believe that universities ought to consistently maintain and enforce their own rules for functioning campuses, even where that involves calling in the police and/or expelling students, and who believe in due process, and believe that issues worth caring about--like anti-semitism, like campus speech, like funding for research--should be dealt with through sound and consistent policy and enforcement decisions. Those of us who think all of these are important may well doubt, under such circumstances, that any of these things will be addressed in a serious, consistent, intelligent, meaningful way. That's a problem precisely because anti-semitism is so prevalent in this society, and demands to be addressed--lawfully, but seriously. If these kinds of hateful beliefs are not addressed early, we run the risk that anti-semites, those who champion them, and those with virtually indistinguishable views from anti-semites will leave campus and end up in positions of responsibility in the Pentagon press office, the Justice Department and Homeland Security, the Treasury Secretary's plane, the State Department, and elsewhere. No decent person can excuse that. 

Posted by Paul Horwitz on March 9, 2025 at 09:49 PM in Paul Horwitz | Permalink | Comments (0)

ALI Constitutional Torts Meeting this Week

I'll be in attendance on Thursday in Philadelphia. Hope to meet those of you who will also be there.

Posted by Gerard Magliocca on March 9, 2025 at 07:48 PM | Permalink | Comments (0)

Saturday, March 08, 2025

Cincinnati Rabbi Disinvited from Rally against Nazis over His Support for Israel [UPDATED]

Again, you read that right. From JTA:

When Rabbi Ari Jun learned that faith leaders were invited to speak at a rally in Cincinnati against neo-Nazis and white supremacy, he quickly responded that he would be there.

As the former director of the local Jewish community relations council who recently took the helm of a progressive Reform synagogue, Jun has experience responding to antisemitism and a passion for social justice.

But a week later, he was told he was off the docket. The reason: He is a Zionist.

Billie Pittman, another organizer with Queen City United, a progressive group, spelling things out even more clearly: “Rabbi Ari Jun is a well-known Zionist, and while this event is intended to oppose Nazis and white supremacy, allowing Zionists to participate undermines the original goal of the demonstration.”

Mohammad Ahmad, who leads a pro-Palestinian group in Northern Kentucky, just across the Ohio river from Cincinnati, praised the decision to disinvite Jun.

“As a Palestinian, I want to thank the brave organizers of this event for taking a clear stance against Zionism and all forms of white supremacy in the Tri-State area. Bravo and well done,” he wrote. “Zionism is unequivocally racism and Zionism is, without a shadow of doubt, an ultranationalist, fascist, and far-right ethno-supremacist ideology that has inflicted so much harm not just on Palestinians in Palestine, but on so many other marginalized groups, including right here in Cincinnati.”

Anti-Zionism is not always antisemitic, but the idea that Zionism "has inflicted so much harm . . . on so many other marginalized groups, including right here is Cincinnati" is antisemitic in its classic form -- blaming Jews for the problems of the world. And of course I have to ask whether the rally also has a litmus test for Hamas sympathizers, who, after all, subscribe to an ultra-nationalist ethno-supremacist ideology.

UPDATE: Rabbi Jun has published an oped in the Cincinnati Enquirer:

That I, a descendant of Holocaust survivors, even have to say this is in itself absurd and demeaning, but here it goes: It is wrong to plan a rally against Nazis at which you effectively exclude Jews from participating.

When I broached with my congregation that we would plan to join this rally, which I did several weeks ago in a sermon, I pleaded this exact point. I told my community to expect challenges, to anticipate seeing people there who might be our adversaries in other spaces, but to embrace that was the reality necessary for us to approach our goal of living in a safe and equitable world. As I said that Shabbat, "amongst some organizing to be present undoubtedly are members of groups who actively harass Jews, for instance, turning ‘Zionism’ into a dirty word that can be used to antagonize us. It won’t be easy to stand shoulder-to-shoulder with them. However, we guard our souls and unite in purpose, even if only temporarily; we accept that some of our allies are friends for a movement and others just for a moment–and that’s good enough."

A community can only be told it is not wanted so many times before it stops saying that its exclusion is a fluke or an aberration and instead begins to believe that it is a systemic reality. Please partner with us. The ship has not yet sailed, but its sails have been raised.

Read the full piece here.

Posted by Steve Lubet on March 8, 2025 at 11:36 AM | Permalink | Comments (0)

I Like Ike

"[T]he free university, historically the fountainhead of free ideas and scientific discovery, has experienced a revolution in the conduct of research. Partly because of the huge costs involved, a government contract becomes virtually a substitute for intellectual curiosity. For every old blackboard there are now hundreds of new electronic computers.

The prospect of domination of the nation's scholars by Federal employment, project allocations, and the power of money is ever present and is gravely to be regarded."

Dwight D. Eisenhower, "Farewell Address," 1961

Posted by Gerard Magliocca on March 8, 2025 at 11:28 AM | Permalink | Comments (0)

Saturday Music Post - Goin' Up the Country

Canned Heat had a hit with "Goin' Up the Country" in 1968, which later became known as a "hippie rural anthem." The vocal was by Alan "Blind Owl" Wilson, rather than the group's usual vocalist Bob "The Bear" Hite.  In fact, the song was an adaptation of Henry Thomas's "Bull Doze Blues," released in 1928. Thomas played a unique, home-made wind instrument call the quills, fashioned from hollow reeds, which the Canned Heat cover imitated on flute, played on the recording by non-band member Jim Horn. Hite pretended to play the flute on a lip-synced video. Other covers have played the quills parts on fiddle, mandolin, trumpet, blues harp, or not at all. You can compare them at The Faculty Lounge.

Posted by Steve Lubet on March 8, 2025 at 06:29 AM | Permalink | Comments (0)

Friday, March 07, 2025

What Did I Miss?

Time to end my blogging sabbatical. What have I been doing since September, you probably have not asked yourself. Well, here's a summary:

• My next book on The Actual Art of Governing: Justice Robert Jackson's Concurrence in the Steel Seizure Case will be available for pre-order soon.
• An essay drawn from the book will be published in the Journal of Supreme Court History later this month.
• I've got a draft paper up on "'Right in Theory, Wrong in Practice': Women's Suffrage and the Reconstruction Amendments."
• I've got a draft paper (still in progress) that I'll be posting about next week on vice-presidential inaugural addresses. Yes, that was a thing once.
• I have exciting news about an upcoming lecture on my Bushrod Washington book that I hope to share soon.  

Posted by Gerard Magliocca on March 7, 2025 at 12:09 PM | Permalink | Comments (0)

Not in my name (Update)

It is a strange time to be Jewish in America. Government censors purport to be protecting us by trying to silence speech that they regard as antisemitic (which usually means critical of Israel and Israeli policy). Universities are targeting and punishing speakers and speech in the name of protecting Jewish students, at the cost of intellectual and academic freedom. Leading Jewish organizations (especially ones that rhyme with Panty Exclamation Teague") welcome anyone who supports the Netanyahu government, including when they make Nazi salutes or spread false claims that Leo Frank framing a Black man.

And it is a feeding frenzy across the ideological spectrum. As Democrats begin to fear a loss of Jewish support, they see the need to "do something" to show that they will protect Jews, even from imaginary or overstated threats. And so Democrats in the Democratically dominated Connecticut has introduced a bill targeting antisemitism (and anti-Islam bias, but let's not kid ourselves) on all campuses in the state.

Update: I guess I should add stripping funding from a university because it did not do more to restrict speech that certain people do not like.

This will not end well for Jews, because it never does. And we are foolish to pretend otherwise just because we like where the winds blow in the moment.

My son is a 1st-year at a school in Connecticut. People on campus sent out the bat signal for students to make themselves heard at a hearing today. He nabbed a speaking slot. His comments are after the jump.

Continue reading "Not in my name (Update)"

Posted by Howard Wasserman on March 7, 2025 at 10:54 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, March 06, 2025

The BDS Movement Officially Boycotts "No Other Land"

Yes, you read that right. The anti-Israel BDS movement has announced the boycott of the Academy Award winning documentary that exposes the forcible displacement of West Bank Palestinians by the Israeli army. Why? Because the film making was a cooperative effort between Israeli and Palestinian directors -- in other words, an effort at peace making -- that the international BDS movement cannot abide. Here is the explanation:

First, the Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI) has from the start reached the conclusion that this film indeed violates the BDS movement’s anti-normalization guidelines in several ways. The BDS movement has always fought against normalization as a powerful weapon employed by oppressors to whitewash their crimes, to colonize the minds of the oppressed, and to undermine global solidarity with the struggle to end oppression.

Regardless of intentions, and according to the anti-normalization guidelines agreed upon by the vast majority of Palestinian civil society, normalization is the participation in any project, initiative or activity, local or international, that brings together (on the same “platform”) Palestinians (and/or Arabs) and Israelis (individuals or institutions). . . .

No Other Land was produced with the help of Close-Up, an organization that is engaged in normalization and is therefore boycotted by many filmmakers and PACBI. Moreover, some of the team’s Israeli members are not on record supporting the comprehensive rights of the Palestinian people. They have failed to acknowledge that Israel is perpetrating a genocide, or have even made extremely harmful, immoral statements drawing a false equivalence between the colonizer and the colonized that may be used to rationalize Israel’s genocide. Accordingly, the film certainly violates the BDS movement’s anti-normalization guidelines.

We acknowledge that the film’s team recently published a statement that explicitly mentions the Nakba, ethnic cleansing, settler-colonialism, and apartheid. Calling for justice for Palestinian refugees, it goes a long way to address the above-mentioned serious flaws. Yet, the statement still fails to identify Israel as the perpetrator of all these crimes. 

Second, regardless of the above and aside from BDS guidelines, it is important to recognize that Palestinians do not need validation, legitimation or permission from Israelis to narrate our history, our present, our experiences, our dreams, and our resistance, including artistic resistance, to the colonial system of oppression that denies us our freedom and inalienable rights. It is therefore imperative for us to challenge the racist conditions, whether covert or overt, imposed by the colonial West and its hegemonic institutions, which do not platform Palestinians except with the permission or validation of Israelis.

What is left to be said? There is evidently no effort at mutual cooperation, understanding, or recognition that can satisfy the BDS demands. Bibi Netanyahu has repeatedly, and falsely, declared that Israel has no partner for peace. The BDS movement seems tragically determined to reinforce him.

Posted by Steve Lubet on March 6, 2025 at 05:44 PM | Permalink | Comments (0)

More of a Bemused Grunt

I'm concerned that replying to some things does more of a disservice to public discourse than anything else. Still, I'll bite to this extent: I have heard, and voiced, many reasons why a Supreme Court Justice, or any other judge or official, might want to step down from office. Age is one, has been particularly relevant for the last three presidential terms including this one and for some time on the Supreme Court, and remains an understudied aspect of contemporary American constitutional law and politics. Dishonor is another. A proper sense of self, in which one's job is not one's life, and a sense as an official that everything has its season, is yet another. It's why David Souter is the best Justice in modern Supreme Court history and why, even absent term limits, a great judge might decide that the thing to do is to serve no more than, say, 20 years or one's 65th or 70th birthday and then step down regardless of the president then serving. (This, I would suggest, is not a flashy form of "judicial greatness"; it is merely an accurate use of the phrase.)

Other sound or plausible reasons are legion. But until now, I had never heard it suggested that "not liking the president," or possibly--and it does seem in context to be the most likely meaning--just "not liking President Trump specifically"--is a reason to leave judicial office. Even in its more general form, I do not think it is likely to join the standard list of reasons. Since many and possibly most people, in and out of all three branches of the federal government, do not like Donald Trump personally, and others just haven't met him yet, I should think that the more specific, personalized version is just a non-starter.   

Posted by Paul Horwitz on March 6, 2025 at 12:28 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, March 05, 2025

JOTWELL: Effron on Young on legal information

The new Courts Law essay comes from Robin Effron (Brooklyn) reviewing Kathryne M. Young, Getting Help, 2024 Wisc. L. Rev. 1149, on the gap between providing legal assistance and providing legal advice.

Posted by Howard Wasserman on March 5, 2025 at 09:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 04, 2025

Justin Trudeau Speaks to the American People

 

Posted by Steve Lubet on March 4, 2025 at 05:33 PM | Permalink | Comments (0)

Monday, March 03, 2025

Tariffs Start Tuesday

Canada's response:

 

Posted by Steve Lubet on March 3, 2025 at 04:11 PM | Permalink | Comments (0)

Saturday, March 01, 2025

Saturday Music Post - The Motown Sound in Performance at the White House

"The Motown Sound in Performance at the White House" was recorded on Feb. 24, 2011, and broadcast on PBS on March 1. Yes, it's pretty much impossible to imagine a similar concert today. Remember some better days at The Faculty Lounge.

Posted by Steve Lubet on March 1, 2025 at 06:21 AM | Permalink | Comments (0)

Thursday, February 27, 2025

The Dis-Engaged Scholarship Cycle?

Am I mistaken in thinking, as I wade through the flood of abstracts for new articles making their way onto SSRN, that this publication cycle faces a stark problem of sudden, unintended irrelevance and forced dis-"engagement" in this year's crop of legal scholarship, at least in public law?

It seems to me that a great many public law articles coming down the pike right now a) deal with issues that were contemporary a short time ago but have been utterly superseded by events; b) assume a host of premises--about methodology, the functioning of courts or executives, about the basic norms of law and the functioning of government, even about fundamental values and even fundamental facts--that are now inoperative or in doubt and newly in need of justification; or c) deal with ideas and proposals that the authors treat not as abstractions but as feasible, practical, going concerns, but which have in fact been rendered as mythical and fanciful as hippogriffs.

I'm not referring to articles that the authors are fully aware are abstract, theoretical, fanciful, imaginative, impractical, or otherwise deliberately disconnected from current events or some reasonably immediate practical goal. Nor am I criticizing that kind of scholarship, at least if it is clear about what it is. (It does seem to me, though, that even these forms of scholarship will often suffer from the problem noted in (b) above. However abstract, they will still often implicitly or explicitly rely on premises that are now in doubt.) But plenty of legal scholarship is not so abstract. It is more immediate and practical in its purpose, aims to respond to current events, advances a goal-oriented political position, or seeks to have some effect in the world on a reasonably short timeline. That's always been true for legal academic writing, for reasons that hardly depend on contemporary politics or scholarship. Rather, it's simply in the nature of the American legal academy, which is still substantially a professional adjunct rather than a university enterprise, and which, despite its trappings, is still structured on a more or less non-scholarly and non-intellectual basis. That orientation is no less present in an era in which current buzzwords like "engaged scholarship" or older ones like "praxis" pop up with regularity. (Although, in fairness, articles that brandish phrases like those are often less practically oriented, and in some ways less "engaged," than, say, the average student comment.) 

It's this scholarship--or so I keep thinking as I peruse the current crop of draft articles--that has been wrenched into substantial irrelevance and "dis-engagement" by events. They read as if the author had bet on a different horse to win. Or they rely on formerly applicable understandings and definitions of political and ideological terms which have been thrown into flux. (Although that flux has been evident for some time.) Or, most understandably, they did neither of these things, but simply failed to account for the degree of disequilibrium we now face. This is not, to be clear, a knock on their quality. Rather, it's a matter of the sudden gulf between their claims to or hope of relevance and engagement, and the reality into which they now emerge. There is already often a gap, borne of the authors' location within the bubble. This is something much more than that. 

Of course this kind of thing happens any time there are significant changes in facts or law, with the ideas that might explain or account for them necessarily needing time to be worked out. We saw some of this with the first Trump term. It took a while before the law reviews started filling with discussions, often excellent, of constitutional and political "norms," illiberalism, and so on. But the disjunction was far less extreme, because that administration featured a larger number of political appointees and career employees who, quaintly, were competent, experienced, conservative, and would reject as contemptible any pledge of personal loyalty to an individual rather than to an office and to the laws and Constitution of the United States. The current personalist regime is being run on a different basis.  

Clearly it won't be long before the machine starts turning out scholarly responses to the current moment. In the meantime, it seems to me that we are about to see a volume of public law articles--including, I'm sure, a fair number of articles operating from conservative premises--whose claims of relevance or engagement were blown out of the water even before they were submitted, and must now be read as abstractions, markers for the future, or memorials.  

Posted by Paul Horwitz on February 27, 2025 at 08:28 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, February 25, 2025

Preliminary injunction does not create prevailing party

So Lackey v. Stinnie holds 7-2 (Roberts for the Court; Jackson, joined by Sotomayor, dissents).

The majority adopts a categorical rule: A plaintiff never prevails based on preliminary injunctive relief; a judicial order must establish the enduring change to the relationship with the defendant to establish prevailing-party status. A case that ends on anything other than a final judicial decree on the merits (or its equivalent, such as a consent decree) render the preliminary relief "fleeting" rather than enduring. In this case (reflecting a common sequence), the government mooted the case by repealing the challenged law after the preliminary injunction. Thus, although the PI gave the plaintiffs what they wanted from the litigation--their licenses back and the opportunity to drive--and they retain those licenses after the end of the litigation, plaintiffs do not prevail because they did not get this relief (the ability to drive) from a final court order. Problematically, the court adopted the categorical bar that had been the law in the Fourth Circuit until the en banc court below in this case overruled its precedent. The court rejected more-nuanced approaches in some lower courts, which consider the basis of the PI (was the focus on the merits or on irreparable harm) and how much the PI relief endured by the end of the case.

According to the dissent, the majority conflates the need for success when the case ends (which dictionaries define as creating prevailing-party status) with the need for a judicial ruling on the merits to end the case. If a plaintiff gets what he wants early in the case and retains it at the end of the case, it does not matter why or how the case ends. This is particularly true where the case ends as moot--whether because the government moots by ceasing the challenged conduct (as here) or because plaintiffs sought specific short-term relief  that ends when the short period lapses (e.g., protesting at the DNC on three specific dates). Plaintiffs got everything they want from litigation (the right to keep their licenses or to protest) but no longer can recover fees in either case.

The case echoes Buckhannon Bd., the Court's last major attorney's-fee case, in a number of respect. Buckhannon rejected the "catalyst theory" (allowing plaintiffs to prevail if the lawsuit prompted the government to change its challenged conduct prior to any judicial ruling); Lackey extends Buckhannon to require that the judicial ruling finally resolve the case.

    • Lackey rejects the view of every court of appeals (11) to address the issue; Buckhannon adopted the view of the one circuit (ironically, the Fourth) to reject catalyst in the face of eleven adopting it. Not sure how the results of "percolation" should affect SCOTUS--if lower courts agree on a legal question, does that suggest something about the "correct" answer to which the Justices should defer?

    • Both cases turn on the importance of a judicial order as opposed to practical relief. Buckhannon and Lackey together require a final judicial order for prevailing-party status. Both dissents argue that the point of litigation is to get something in the real world (money or the right to engage in or be free from some conduct); the judicial order is the means, not the ends.

    • Both cases involve quarrels over efficiencies. Both majorities insist that their bright-line rules limit wasteful satellite litigation over fees; both dissents insist that the majority creates perverse incentives for plaintiffs to litigate longer, seek nominal damages for no good reason, and to resist mootness or settlement to maintain the possibility of prevailing-party status by getting to a final judicial order. Both dissents insist that the majority disincentivizes attorneys from undertaking cases (§ 1988(b) seeks to encourage representation) for fear that their efforts will not reach final judgment despite their basic merits; the majority dismisses these concerns as "entirely speculative."

The outcome surprises me a bit given the ideological drift of constitutional litigation. Lackey has a liberal bent--a challenge to a state law burdening criminal defendants (mostly poor and of color). But the increasing use of § 1983 litigation (and thus of § 1988(b)) attorney's fees for conservative causes means this decision will affect the other side. An anti-abortion group hoping to display photos of aborted fetuses at a particular intersection on a given date will not be a prevailing party. See how this plays out.

Posted by Howard Wasserman on February 25, 2025 at 01:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Courtroom policies and constitutional substance

Following up on the efforts to recuse a judge from hearing a challenge to a trans-athlete policy because of the judge's standing courtroom practices: Judge Crews (D. Colo.) refused to recuse and refused to rescind the courtroom pronoun policy. Crews (and his courtroom policies) have not stopped plaintiffs' attorneys from misgendering the trans athlete at the heart of the case (who is not yet involved in the litigation and thus not protected by the policy). And Crews twice told counsel that he would refer to the athlete by female pronouns as a matter of courtesy and respect (as he is duty-bound to do) but this should not be confused for prejudgment and did not require plaintiffs to do the same. It seems to me we are in Rick's baseline hell here because any judicial practice will reflect the goals of one side in a case such as this--a judge who insisted on using male pronouns to describe a trans-woman athlete could be said to prejudge the matter by accepting plaintiffs' arguments about biological sex.

But then Judge Dale Ho (S.D.N.Y.) recused (paywalled) from a challenge to a minority-supporting investment fund because of his courtroom policy encouraging participation of less-experienced attorneys, including those from historically underrepresented backgrounds; lawyers from Consovoy McCarthy alleged the policies violate Equal Protection and reflect prejudgment in the case. Consovoy attorneys made the same move against another S.D.N.Y. judge, prompting her to rescind a similar policy.

As a matter of prejudgment and judicial ethics (which I do not study), are these cases distinguishable? I do not believe either reflects prejudgment; judges must be free to enact lawful policies until they cease to be lawful. A judge's lawful practices cannot be the basis for recusal once a case comes around that might challenge or be inconsistent with those practices. Otherwise, parties pushing  litigation positions would be able to pick their judge--only a judge who has never sought to advance racial minorities or to show respect for trans people in an (at-the-time) lawful manner. And we are back in baseline hell. Unless it depends on the courtroom policy--is there a difference between a "be respectful in my courtroom" policy and an "enhance the diversity of the bar" policy, in terms of what judges should be doing?

Posted by Howard Wasserman on February 25, 2025 at 10:45 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Harper's Letter and real threats to free speech

Amid genuine government efforts to restrict or retaliate against speech--the White House limiting AP access because of objections to its style guide, deputized private thugs removing people from town hall meetings, government stripping funding from universities where researchers focus on certain topics and viewpoints--some have returned to the infamous Harper's letter of 2020. They wonder-facetiously, since we all know the answer--whether the Harpers authors worry that government threats to suppress speech (as opposed to annoyed readers complaining about the authors themselves) threatens "the free exchange of information and ideas, the lifeblood of a liberal society" or creates a "stifling atmosphere [that] will ultimately harm the most vital causes of our time." Does a promise from the Acting U.S. Attorney for the District of the District of Columbia (and nominee for the permanent slot) to "be vigilant in standing up against entities like the AP that refuse to put America first" suggest that "journalists [will be] barred from writing on certain topics" and face "swift and severe retribution" for what they say? Or is that only when it comes from an Oberlin sophomore complaining about these authors rather than the machinery of the United States government.

I do not expect intellectual honesty from Bari Weiss and her fellow travelers (and some of the Harper signatories should have known better, even in 2020). Most do not fear reprisal from this administration and do not care that their critics or ideological opponents will face such retribution:

    "Hey, please be thoughtful in how you write about powerless trans people"--dire threat to free speech.

    "You lose your government funds if you use the word trans person and your ability to access common spaces if you do not describe bodies of the water with out preferred terminology"--no problem.

I think we are witnessing the Converse Cry-Wolf. It is not that these people screamed about threats to free speech for so long that no one believedsthem when they now warn about real threats to free speech. It is that these people do not even recognize, acknowledge, or care about these real threats to free speech.

Posted by Howard Wasserman on February 25, 2025 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, February 24, 2025

Proposal to eliminate the tush-push

I wrote about the controversy over the tush-push* as a sports rule and possible efforts to ban it. An unidentified team (ed.: Turns out to be the Packers) has submitted a proposal to ban the play, citing health-and-safety (as opposed to competitive-balance) concerns. We will see what happens.

[*] The Eagles (who, apropos of nothing, will not visit the White House) play is officially called the "Brotherly Shove," so the Yiddish should not have found its way into the Super Bowl.

Posted by Howard Wasserman on February 24, 2025 at 06:57 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Vain, Wrong, and, Dangerous. But at Least His Grammar is Awful.

One might say that Ed Martin is a gift that keeps on giving, or at least that he can be relied upon to serve as the entertainment between episodes of terrible behavior at Main Justice, were it not for the fact that he currently serves as a federal law enforcement official. That somehow takes the joke out of things, leaving me to wonder what you call something that is ridiculous without being at all funny. Outrageous, I guess, in the sense that it evokes outrage in decent people. Or perhaps horrifying. 

I think a government that not only steeps itself in social media (a mistake administrations have been making, while congratulating themselves for being savvy, since Obama) and uses Twitter as the administration Slack page, but also takes its cues for how to speak and behave directly from those sloughs, is acting unwisely and dishonorably. Regardless, I'm not inclined to treat any given stray remark, often by some punk staffer, as the last word about that office or officer's views. But when you say something that contains multiple errors, all quite telling, and take the time and effort to make the graphics all pretty, I think at some point your audience is entitled to conclude that you have moved beyond slips of the tongue or pen. Especially if you put it up on your (currently misnamed) official Twitter page. 

The message in question:

Start with the fact that Martin, not having been confirmed by the Senate, is not the the U.S. Attorney for D.C. yet; he remains the interim U.S. Attorney. A pedantic point, to be sure--unless you are addressing someone whose amour-propre led him to insist on being referred to as "U.S. Attorney" in court filings within days of taking his interim position. Add the general idiocy about putting America first--if not as a misunderstanding of journalism, then as evidence of ongoing ignorance of, indifference to, or contempt for Title 1.7 of the Justice Manual (in fairness, he is only the interim U.S. Attorney), as well as of general principles of discretion and good taste. Add the gross misunderstanding of who he and his office represent. (Also in fairness: Martin is not always clear on who he represents.) At that point, the misplaced apostrophe and incorrect plural has to be seen as the cherry on top.

I would like to greet this with better humor. Everyone loves a clown, after all. But I am so fond of the First Amendment. And the interim U.S. Attorney has spent a busy week or two demonstrating a decidedly dubious regard for it. His tryout round was bad enough. But his letters of last week, seeking "clarification" from Democratic members about speech he treated, absurdly, as raising "threat" concerns, suggested that he is elevating the use of state power to chill speech from an unforced error to a mission.

Like FIRE, whose statement I link to immediately above, I spent much of last week thinking of this in terms of a governmental abuse of true threat doctrine. But I think that is giving Martin too little credit for ambition, and paying too little attention to the content and context of the statement from Sen. Schumer (an asinine statement, to be sure) that Martin targeted for inquiry. Really, this is more properly seen as a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.

A clown, as I say. But more in the Pennywise vein--still a clown, but also dangerous and scary. As always, in this personalist or patrimonialist administration as in any other, the final blame rests at the top. But it certainly includes the interim U.S. Attorney himself.  

Posted by Paul Horwitz on February 24, 2025 at 06:46 PM in Paul Horwitz | Permalink | Comments (0)

Substance, procedure, and the current constitutional crisis

Sen. Curtis (Utah) went on Face the Nation and said this:

Well, what we're seeing play out is this wrestle between the three branches of government. We'll find out. And this is the beauty of the system--* Well, listen, I believe in the Constitution, right? I believe this is how we test the Constitution. And people have said, oh, this is a constitutional crisis. And I say, exactly the opposite. It's proving to work. We have the courts playing it. We have Congress who will play in. We have the ability, I think we hold a lot of responsibility for what's happening right now. We could solve the budget as Congress. We could solve the border, and we haven't. And both parties, when Congress doesn't do their job in the White House, have a tendency to try to solve it. Let's let this play out by the Constitution and- and then Congress, let's step up, right? We need to- I'll be the first to say we. This is a problem the Congress is, in many cases, has given the American people.

He has been taking some crap in some quarters, especially for the part about "test[ing] the Constitution. "No," they respond, "we follow the Constitution, we do not test it." But while "test" is a bad word choice, I am not sure he is wrong.

The retort of "we follow the Constitution" begs the question because no one knows what the Constitution means and no one has the final word on the meaning of the Constitution. Trump and his minions (presumably) believe what they are doing is lawful and pursue this course on that belief; other constitutional actors (namely the courts) express their views, but that plays out within a somewhat lengthy process. Alternatively, Trump and his minions know what they are doing is unlawful (or at least do not care); other constitutional actors (again, the courts) may bring them to heel, but that plays out within a somewhat lengthy process.

Ultimately, Curtis gave a procedural response to a substantive question. Host Margaret Brennan (who is so far out of her depth) asked whether Curtis had a point of view of the wisdom of everything Trump is doing and whether he is pursuing a good course of governance, a question about the substance of his actions; Curtis responded with a procedural answer--the Executive acts, other branches respond, and we get an answer to the immediate question. But that tells us nothing about whether he--a member of the Senate and a constitutional actor--believes the President should do th4ese things. He punted to "the courts will tell us whether it is valid" as "the beauty of our system." (Seemingly without recognizing Congress as a constitutional actor and his role in that process).

This distinction among constitutional procedure, constitutional substance, and policy substance confounds most discussions. Take birthright citizenship. The President did not "act like a king" in issuing the EO if he believes that Kim Wong Ark is wrong or distinguishable; he acted on his independent constitutional judgment, which can be challenged in the other branches. The real issue is the substantive--whether his view (and the views of conservative scholars rallying to his defense) is defensible. Or take firing military leaders or pardoning J6 insurrectionists or appointing nut jobs to high offices. This is not a matter of constitutional procedure or constitutional substance--no one doubts the Commander in Chief can fire who he wants to and no one doubts the pardon power; it is pure policy (or norms, if you like) and how we believe leaders should act in office.* And this is actually where Congress--a rival policymaking body--can but fails to act.

[*] Sandy Levinson might say it reflects constitutional substance by exposing the many defects in the Constitution. Fair enough. But we are stuck with the Constitution we have.

Interviewers and commentators should maintain these distinctions. If Donald Trump is acting like a king, it is not necessarily because he has exceeded his constitutional powers-the President has quite broad, and ill-defined, powers. It is that he is governing in an objectionable way that maximizes his power towards bad ends. So the question for congressional Republicans should be "Do you think it is a good idea to have Dan Bongino as Deputy FBI Director or a statutorily unqualified person as Chair of JCOS or to eliminate top military lawyers or to eliminate birthright citizenship." The question should not be "can the President do this," because the answer is always either "yes" or "we'll let the courts decide."

Posted by Howard Wasserman on February 24, 2025 at 12:36 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Why Barnett and Wurman Are Wrong about Trump's Attempt to Abolish Birthright Citizenship

My new column for The Hill explains why Trump’s attempt to abolish birthright citizenship is unconstitutional, even though Randy Barnett and Ilan Wurman believe he has a good case. Here is the gist:

Two prominent law professors have taken Trump’s side, contending in a New York Times opinion essay that the president actually has a good case. 

They are wrong. Trump’s executive order grievously misconstrues the 14th Amendment, and the professors’ support for it is badly misguided.

The greatest danger of Barnett and Wurman’s theory is that it would create a perpetual underclass of individuals excluded from the social contract. That is precisely the evil the 14th Amendment’s birthright clause intended to remedy.

The premise of the Dred Scott case, per Chief Justice Roger Taney, was that Black people, whether enslaved or free, could never be members of the American “political community,” and thus had no claim to citizenship. 

It took a constitutional amendment to undo the damage by, as the Supreme Court said in Wong Kim Ark, placing it “beyond doubt that all blacks, as well as whites, born . . . within the jurisdiction of the United States are citizens of the United States.”

Barnett and Wurman’s theory would recreate a similarly inferior status for the children of “unlawful entrants,” casting them permanently outside the national social contract solely by virtue of their birth. That is not merely a faulty argument; it is a pernicious one.

You can read the complete essay at The Hill.

Posted by Steve Lubet on February 24, 2025 at 11:59 AM | Permalink | Comments (0)

Saturday, February 22, 2025

Major and Minor Trans Issues, Again (Updated)

I previously criticized efforts by some Democrats and non-conservatives to defuse Democratic vulnerability to anti-trans demagoguery by sacrificing minor issues such as sports participation in favor of major issues, such as allowing trans people to live their lives, including their names and pronouns. I argued this cannot work because those opposed to trans rights (which has become the entire Republican establishment) do not and will not draw these distinctions--recognizing trans people is objectionable in all forms and contexts.

Case in point: Attorneys in the lawsuit (in the District of Colorado) challenging the Mountain West Conference's trans-participation policy have moved to recuse Judge Kato Crews from the action. The reason? Crews (along with several other judges on the court) adopted a joint set of practice rules, including a provision inviting counsel to identify the pronouns of relevant actors in each case and to use appropriate names and pronouns in court. They argue that the policies restrict the speech of plaintiffs and lawyers (which, yes, procedural rules do that all the time) and demonstrate bias--"An impartial forum cannot exist where the Court has so forcefully signaled the Courts’ personal views on sex and gender identity that the Court is willing to use its contempt power to enforce those views."

In other words, they object to anything recognizing the humanity and equality of trans people and have no interest in some compromise in which trans people can live as they want, as long as they stay out of certain limited areas (such as women's sports). Conversely,they allow no space for the sort of compromise some propose--asking a lawyer to be respectful and not be an asshole to a trans person during litigation reflects bias and prejudgment about the bigger issue of sports participation.

I expect Judge Crews to deny the motion. But it gives us a sense of where we are.

Updated: Marty Lederman discusses the case on Bluesky, including a link to the motion with asks Judge Crews to rescind his court rules. Marty frames this within a pending Sixth Circuit case in parents claim their children have a First Amendment right to misgender their school classmates. Whatever the outcome there, I agree with Marty that it is absurd to think the First Amendment precludes courts from regulating how attorneys and parties refer to one another in the litigation process.

Posted by Howard Wasserman on February 22, 2025 at 04:03 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday Music Post - When Will I Be Loved?

"When Will I Be Loved" was written by Phil Everly and recorded for the Cadence label with his brother Don in 1960, but not immediately released. The Everly Brothers moved to Warner Brothers shortly afterward and rerecorded the number in the softer pop style. Fortunately, Cadence was still able to release the original cut which was the last of the brothers' great rockabilly numbers. Linda Ronstadt, of course, had an even bigger hit with her release in 1975, and most covers since then have been of her version, as you see today at The Faculty Lounge.

Posted by Steve Lubet on February 22, 2025 at 03:41 AM | Permalink | Comments (0)

Thursday, February 20, 2025

And so it begins . . .

From STAT:

HHS orders CDC to halt some vaccine ads, saying RFK Jr. wants message focused on ‘informed consent’

The Centers for Disease Control and Prevention was ordered to shelve promotions it developed for a variety of vaccines, including a “Wild to Mild” advertising campaign urging people to get vaccinated against flu, two sources familiar with the decision told STAT.

The Department of Health and Human Services’ assistant secretary for public affairs informed the CDC that HHS Secretary Robert F. Kennedy Jr. wanted advertisements that promote the idea of “informed consent” in vaccine decision-making instead.

The decision to pull flu shot advertising is an early sign of how RFK Jr. may shift the U.S. approach to vaccinations as the nation’s top health official. Others came Thursday as well: The CDC’s influential vaccine advisory committee postponed a meeting scheduled for next week, and Politico reported that RFK Jr. may remove some members of that committee and other influential public health bodies, claiming they have conflicts of interest.

Read it all here.

Posted by Steve Lubet on February 20, 2025 at 06:31 PM | Permalink | Comments (0)

Wednesday, February 19, 2025

JOTWELL: Wasserman on Berman on personal jurisdiction

I have the new Courts Law essay reviewing Paul Schiff Berman, The Future of Jurisdiction, 102 Wash. U. L. Rev. ___ (forthcoming 2025). I plan to incorporate some of his insights into the course this semester.

Posted by Howard Wasserman on February 19, 2025 at 10:48 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, February 18, 2025

Inaugural Law and Political Economy Association Conference

The following is from Luke Norris (Richmond):

Save the date for the inaugural Law and Political Economy Association conference on September 11-13, 2025 at the University of Richmond School of Law!

This conference will serve as the launch for a new Law and Political Economy Association, an organization dedicated to the production of scholarly knowledge by academics, researchers, organizers, practitioners, and others committed to centering issues of political economy in the study of law. We hope that this work can be part of a larger project of imagining and working towards a more democratic, fair, egalitarian, inclusive, and sustainable future.

Continue reading "Inaugural Law and Political Economy Association Conference"

Posted by Howard Wasserman on February 18, 2025 at 08:35 AM in Teaching Law | Permalink | Comments (0)

"Thank you and I hope we've passed the audition"

Coincidentally, I had meant to mention Ed Martin in a post yesterday, before seeing the news of his official nomination as U.S. Attorney for Washington, where he has been serving as interim U.S. Attorney. The publicity surrounding Main Justice and the Eric Adams transaction threatened to crowd out the attention Martin deserved for the letter to Elon Musk that he publicized on Twitter last week. That letter assured Musk that Martin's office will "pursue any and all legal action against anyone who impedes your work or threatens your people." It came on the heels of a (legal, legitimate) news story identifying the young men serving as Musk's aides, and another story (also legal, also legitimate) discussing the racist oeuvre of another DOGE aide.  

The principle of charitable or "steelman" interpretation always applies first, keeping in mind that there is a difference, when dealing with untrustworthy, corrupt, unethical, and dishonest people and administrations, between considering plausible readings and arguments, as one should, and becoming a sucker or a willing apologist for immorality and barely-reasoned abuse of power. The charitable but, I dare say, dubious reading of Martin's letter is that it referred only to leaks and other government employee sabotage, and to genuine individual threats launched at the DOGE aides following the (legal, legitimate) news stories revealing their identities. I would have no great quarrel, as such, with that, although I would be more impressed by actual charges than by issuing threats with charges to be named later. The less charitable, more plausible supposition was that it was a general, vaguely stated, and speech-chilling because vaguely stated, attempt to use state power to intimidate critics of DOGE, Musk, and/or the administration. This was the most widely shared interpretation. It was buttressed by the openly partisan and unbecoming nature of the letter's concluding lines. 

Perhaps. But I think the fullest, fairest reading is available only after surveying Martin's Twitter page. (Alas. I suppose we get the culture we deserve.) Over the three weeks leading up to Martin's nomination, it positively overflowed with obsequious flattery--not only of Trump, but of the Attorney General, Musk, the Vice President, and OMB director Russell Vought. Surely the letter, along with the flattery, can be understood as a threat and an effort to chill and intimidate reporters and critics. But Martin's letter should also, and perhaps primarily, be understood as an audition: as part of an effort to lock up the nomination by reaching, if not the president, then those who currently enjoy his favor and have access to him, adding to the flattery a sign of his personal loyalty both to Trump and to the adjunct president. The dockside bullying was almost incidental, like leaving a calling card. 

The letter is bad enough. The nomination is bad enough. Both, in combination with Martin's apparent desire to celebrate February as Unctuousness Month, are awful. One encounters flatterers from time to time, in the academy as elsewhere. But it is rare that one comes across as thorough-going a lickspittle as this. Evidently Martin's efforts were rewarded. One imagines the flattery could only be more effective as a job application than his actual resume.

Posted by Paul Horwitz on February 18, 2025 at 08:21 AM | Permalink | Comments (0)

Monday, February 17, 2025

Notre Dame Law Review RFP 2025-26 Symposia

NOTRE DAME LAW REVIEW 2025–2026 SYMPOSIA:

REQUEST FOR PROPOSALS

The Notre Dame Law Review invites proposals for its two 2025–2026 symposia. In accordance with twenty-five years of tradition, one of the Law Review’s symposia will be on a topic related to federal courts, practice, and procedure. The second symposium’s topic is not limited in scope and can focus on any engaging matter.

Previous Federal Courts, Practice, & Procedure Symposium topics include:

• State Standing
• The Future of Qualified Immunity
• Constitutional Structure
• The Eleventh Amendment, Sovereign Immunity, & Alden v. Maine
• The Judiciary Act of 1925

Previous general symposium topics include:

• Constitutional Reconstruction: History and the Meaning of the Thirteenth,

Fourteenth, and Fifteenth Amendments

• Contemporary Free Speech: The Marketplace of Ideas a Century Later
• Administrative Lawmaking in the 21st Century
• Religious Liberty and the Free Society: Celebrating the 50th Anniversary of

Dignitatis Humanae

• The American Congress: Legal Implications of Gridlock

The Notre Dame Law Review has a long-standing tradition of hosting symposia that unite well-respected and diverse speakers. Our goal is to foster intellectual engagement and create a forum for all to explore timely legal topics. Traditionally, each participant publishes an article in one of the Law Review’s symposium issues.

What to Include in Your Proposal

Please submit your proposal as a PDF document. A strong proposal should be no

more than five pages and include the following:

• A proposed title;
• A brief description explaining the topic, its importance, and its relevance (no

more than 500 words);

• A list of individuals you might invite to write pieces for your proposed

symposium for publication in the Notre Dame Law Review;

            o Please indicate what level of interest each individual has expressed, if

            any.

            o Please note that symposium issues generally include between seven

            and ten articles.

• If available, a brief description of proposed paper topics;
• A list of individuals who (1) might participate in your symposium without

writing pieces for publication or (2) may be interested in publishing a shorter

response piece in the Law Review’s online journal, Reflection (and what

interest these individuals have expressed in participating, if any);

• The name and contact information of the proposed symposium organizer who

would serve as the point person for coordination and decisions with the Law

Review executive board; and

• Any potential sources of funding.

Please indicate whether your proposal would require more than one day. Symposia

are traditionally held on a single day.

How to Submit Your Proposal

Please submit your proposal by email to [email protected]. The Notre Dame Law

Review will accept submissions until March 14, 2025. For questions, please email the Managing Symposium Editor, Emily Amershek, at [email protected].

Proposal Selection

The Symposium Team will review each proposal based on the following factors: • Definition and focus of topic • Originality of topic • Timeliness and importance of topic • Experience and expertise of proposed presenters/panelists • Academic quality • Available funding Thank you, and we look forward to hearing from you!

Posted by Rick Garnett on February 17, 2025 at 02:04 PM in Rick Garnett | Permalink | Comments (0)

Will SCOTUS allow Congress to protect non-partisan administration of the laws from plebiscitary presidentialism?

It is President's Day, so naturally presidential power and legitimacy are on my mind. In particular, I am wondering how far the Roberts Court will go in vindicating what Noah Rosenblum and I call "plebiscitary presidentialism." By "plebiscitary presidentialism," I mean the view that presidential elections give the President a uniquely democratic legitimacy in the American constitutional system, because presidents alone have a national constituency. As Roberts put it in Seila Law, "the Framers made the President the most democratic and politically accountable official in Government" because "[o]nly the President (along with the Vice President) is elected by the entire Nation. And the President’s political accountability is enhanced by the solitary nature of the Executive Branch, which provides “a single object for the jealousy and watchfulness of the people.” Sure, members of Congress are also elected, but they have parochial state- or district-specific constituencies and therefore cannot embody the will of the nation as does the President. Presidential elections, on this view, are national plebiscites that legitimize the executive branch in a way that congressional elections can never legitimize the legislature.

It follows that the President's "executive power" should be read generously to permit detailed supervision of every official in the executive branch. As Madison said (and Roberts repeatedly quotes), “the lowest officers, the middle grade, and the highest” all “depend, as they ought, on the President, and the President on the community.” In a paper that we recently posted on SSRN, Noah and I argue that United States v. Arthrex took a radical turn towards vindicating this vision of a plebiscitary presidency by protecting not merely the President's power to fire agency chiefs but also to tell every civil servant in the executive branch how to do their job. Arthrex is unique among the Roberts Court's decisions defending the unitary executive from Congress in providing the remedy of override rather than removability: The Arthrex Court re-wrote the Leahy-Smith America Invents Act to confer on the politically appointed Director of the Patent & Trademark Office the power to review and reverse the decisions of the politically insulated Patent and Trademark Boards. Only such a judicial re-write of the statute, the Court reasoned, would ensure that the latter constituted "inferior officers" who were under the direction and control of the President.

Noah and I argue that this extraordinary remedy has important and dangerous implications for the idea of administration of the laws by a non-partisan civil service. It is one thing to say that agency chiefs must serve at the pleasure of the President. It is altogether more radical to say that the President must be able to direct and control every decision by every inferior officer and employee in the executive branch. Statutes, after all, often require that technical criteria be implemented by properly qualified experts, ranging from peer review of NIH grants to recommendations of FDA scientific advisory committees to Bureau of Labor Statistics economists. Is Arthrex really serious that some politically appointed agency chief is constitutionally entitled to revise such decisions according to the chief's own ideas of, say, disease etiology, clinical controls, or statistical error?

After the jump, I will explain (1) why Arthrex might have precisely such an implication but (2) how SCOTUS might avoid plunging into the abyss of such politicized administration of the law by embracing an old concept of apolitical administration. Here's the punch line: That concept was precisely the idea defended by William Howards Taft, author of Myers v. United States and granddaddy of the "unitary executive."

Continue reading "Will SCOTUS allow Congress to protect non-partisan administration of the laws from plebiscitary presidentialism?"

Posted by Rick Hills on February 17, 2025 at 12:08 PM | Permalink | Comments (0)

Sunday, February 16, 2025

John Bingham on the Citizenship Clause

Akhil Amar's podcast recently featured a quote from John Bingham about the Citizenship Clause. For those interested, the quote comes from a speech Bingham gave that was reported by The Summit County Beacon of Akron, OH on September 26, 1867:

"We propose to settle all the difficulty of the Dred Scott Decision by putting it into the Constitution. If a man is not a citizen of the country in which he is born, in God's name of what country is he a citizen? If he may not live there, where has he a right to live? We propose to put it into the power of every man, woman, and child, black or white, rich or poor, when his rights are invaded, to raise his hand toward the flag, and say, I am an American citizen. [Great applause] Why should it not be so, now that all are free?"

 

Posted by Gerard Magliocca on February 16, 2025 at 01:32 PM | Permalink | Comments (0)

Saturday, February 15, 2025

Is There a Non-Imbecilic Version of the President's Latest Assertion?

That assertion being, "He who saves his country does not violate any law." (I have cleaned up the quote out of respect for the English language.) 

There is. In more contemporary legal academic literature, it is represented by several fine articles. One might start with Henry Paul Mongahan's The Protective Power of the Presidency, a 1993 Columbia Law Review article whose core question is the extent to which "the President, acting on his or her own, [can] invade the rights of American citizens in circumstances which Congress could—but did not—authorize." Monaghan concludes that the president "cannot act contra legem," but that the executive may have a bounded "protective power" to "protect and defend the personnel, property, and instrumentalities of the United States from harm." He makes clear that the protective power he envisions is limited, both in scope and in nature; it does not, for instance, contemplate the use of the word "harm" in the distended contemporary manner beloved these days on both sides of the political horseshoe. (That seems obviously relevant here, since the only way in which the words "saves his country" could possibly be applicable at present is a fatuously general argument that not having the country one wants, the second one wants it, justifies extralegal emergency measures.)

Another chunk of material addressing this question was birthed after 9/11. The positive case was put by Michael Stokes Paulsen in his 2004 article The Constitution of Necessity. Paulsen argues there that "the Constitution itself embraces an overriding principle of constitutional and national self-preservation that operates as a meta-rule of construction for the document's specific provisions and that may even, in cases of extraordinary necessity, trump specific constitutional requirements. The Constitution is not a suicide pact; and, consequently, its provisions should not be construed to make it one, where an alternative construction is fairly possible." And where such an alternative saving construction is not possible, the necessity of preserving the Constitution and the constitutional order as a whole requires that priority be given to the preservation of the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions." Paulsen argues that "the primary [but not exclusive] duty of applying it and judging the degree of necessity in the press of circumstances" rests with the President. He describes this power as both necessary and dangerous, obviously susceptible to misuse, and adds that both Congress and--more pertinently today, for the time being--the judiciary have a duty to independently review any exercises of this power: "While the courts, and Congress, should recognize the correctness of a doctrine of constitutional necessity,...that does not mean they should go along with whatever the President says. A constitutional power of necessity necessitates checks on its exercise. Complete congressional and judicial acquiescence or abdication has a name. That name is Korematsu." 

Another example of the positive case from the same period comes from Oren Gross, who argued in 2003, in Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, that "there may be circumstances where the appropriate method of tackling grave dangers and threats entails going outside the constitutional order, at times even violating otherwise accepted constitutional principles, rules, and norms." He argues that any such conduct must involve an open and public acknowledgment of the extralegal nature of these actions, and it may then be judged by the public, including other officials, who may approve it or may call that official to account and require that he or she "make legal and political reparations." 

On the other side, I have always been impressed by Sai Prakash's The Constitution as Suicide Pact, written as a response to Paulsen's article. Prakash argues that "though the Constitution creates a powerful chief executive, it does not empower the President to suspend the Constitution in order to save it." He writes eloquently: "I do not regard it at all obvious that people framing a constitution would include an 'anti-suicide' provision. In fact, there are many sound reasons why reasonable people might omit a rule of necessity. To begin with, constitutional framers might value other things, like religious freedom or a slavery prohibition, more than the durability of the constitution and the nation. In particular, constitutional framers might not wish to frame a constitution that permits the expedient sacrifice of such principles, even temporarily. Moreover, constitution-makers might believe that officials will violate the constitution on grounds of necessity anyway, and that we ought not to multiply those violations by explicitly sanctioning what otherwise might occur once in a blue moon." This argument, I should think, will be especially legible to religious individuals, who may think of any given state as a temporary expedient that is ultimately subordinate to higher values and ultimate things. (Admittedly, this understanding may be different if the religious individual in question is an idolater.) 

Needless to say, all of these arguments, back and forth, have occasioned a rich library of commentary. And these are just recent efforts. All of them take place against a longer history of argument, stemming most particularly from Lincoln's presidency, about what presidents or other officials may do, when they may act extra-legally, and whether such actions should be understood as non-violations or justified violations of law. Viewed from a suitably wide perspective, they do not break down into party or crudely ideological lines. Arguments for expansive governmental power, executive or otherwise, are often grounded in some form of "necessity." What the best of these discussions have in common is a sense that something more than legal realism or crude power is at play in these discussions, that any such power that might exist is deeply perilous even if it is necessary, and that it ultimately relies on candor, on a non-shirkable duty of independent evaluation by other officials and by citizens, and on the willingness to face the consequences of one's decision to act in a way that would normally be considered a law violation--although this runs up against what Prakash, writing elsewhere, calls "an extreme executive aversion to admitting illegality during crisis,....a tendency that predictably leads executives to press rather sweeping readings of their constitutional and statutory authorities."

I should add, however unnecessarily, that none of this is present in today's eccentrically capitalized presidential statement. Just as one should be willing to acknowledge serious arguable questions and not dismiss them simply because the source is poor, so one should be cautious about putting lipstick on a pig. It's not a fatal fault of a presidential argument that it could be put more seriously and deeply. We do not expect depth from presidents and should, in my view, even be wary of any desire for them to be eloquent. But we should distinguish between elaborating on someone's actions or arguments, and engaging in post-hoc rationalizations on their behalf, in a way that risks wildly missing the point. One should not assume that a rationale is called for or even relevant when addressing the words or behavior of a gross, unbridled appetite wearing the skin of a man. One should not too readily assume that his words have much semantic content at all, as opposed to being barbaric yawps. 

Neither, however, should one somehow take as a given that a president's statements are "mere" trolling. (Nor should one forget that trolling is not an acceptable activity for mature adults, in or out of high elected office, even if it has soaked deeply into our culture and appears to be this administration's sole mode of speech. On that point, the title of the second Prakash paper I've quoted seems unusually apt: The Imbecilic Executive.) I don't want to dignify what can't be dignified. But it is nice to be reminded that in other places and times, intelligent people have discussed intelligent versions of these genuine questions. For some, that might indicate that those discussions were already dangerous, insofar as they legitimized dangerous behavior. I'm more inclined to think that what it suggests is that those conversations could only take place because everyone involved in them assumed and shared, perhaps far more than they realized, a baseline level of seriousness, legality, and common ground about the ascertainment of facts. The common ground between the people on opposite sides of those arguments was vastly greater than the space between this president and everyone involved in those debates.       

Posted by Paul Horwitz on February 15, 2025 at 07:04 PM in Paul Horwitz | Permalink | Comments (0)

What is it Like to Be an ABA Member?

One useful way of spotting the indefensible is that those writing an apologia for some action write around that topic but not on the question itself. A nice example of this is a Volokh Conspiracy post yesterday discussing one of the day's flood-the-zone stories: a letter from Andrew Ferguson, chairman of the FTC, stating that political appointees are barred from, inter alia, renewing existing ABA memberships, and prohibiting the agency from any spending to facilitate any employee's participation in an ABA event. The letter is an exemplary Trump administration missive written in the Trump administration house style. It's exemplary, among other things, in that it curries favor with the boss; how fitting that it was dated February 14. It is exemplary also in being deliberately provocative without being especially purposeful, in centralizing power and favoring it over expertise, and in being uneven and self-serving in application. (That prohibition on spending for participation in ABA events does not include commissioners or their staffs.) And its signs of the house style include repeated invocation of the personalist nature of the presidency (eight uses of the president's name in a little over two pages), breathless praise and puffery, bad writing, and bald dishonesty. (Remember: the bald dishonesty is the point. A more elegant lie would not serve the purpose of demonstrating loyalty. Like hypocrisy, it would pay tribute to virtue; and reserving a place for virtue might denote a dangerous independence.) 

In almost-defending the letter, the VC post argues that the ABA has had it coming for a long time, without ever getting to the rightness or wrongness, seriousness or silliness, of the "it." This is a justification in roughly the same way that one might accurately discuss the loud barking one's neighbor's dog and the need for it to be better behaved, while avoiding discussion of the fact that you dealt with the problem by poisoning the dog's food. 

I'm sympathetic to the criticisms of the ABA. I have belonged to the ABA since 2000. I have found it useless at best as a membership organization. Its function in my own life is minimal. The ABA Journal, which has had good moments in the past, is now so poor that it makes state bar magazines look good by comparison. The political leanings of the organization have long been evident. (Although, predictably given the rhetorical exaggeration of the house style, Ferguson's letter gets those leanings wrong. It's establishment liberal, not "leftist" or "radical left-wing," a distinction that Ferguson, a longstanding member of the establishment, ought to understand. For its entire history, the ABA has always only ever been either establishment liberal or establishment conservative.) I groan at some of its accreditation moves and at other policy proposals and ignore its amicus briefs. I remain a member for pretty typical reasons: one is simple inertia, and the other is that it occasionally does things in my area that I would like to know about. That second reason would be even more pertinent if I were in an area of law--say, antitrust--where bench, bar, and academy mix more often and productively. I would be interested in such matters even if I disliked many other aspects of the organization. As with, say, the Federalist Society, I might belong because I thought it put on some good events, or had some good sections or chapters, even if I found other chunks of the ABA objectionable or trivial. (And like the ABA, I belong to the Federalist Society most years, with lapses having more to do with inertia than the desire to make a statement.) It is an extremely weak-tie membership group. 

For those reasons, I could well imagine any administration criticizing the ABA or having no interest in working with it. (Although I expect that, in reality, this administration will often work with the ABA at multiple levels, while also attacking it and engaging in dumb-shows of this sort.) But that's not the "it" here. The "it" is a flat ban on membership in the organization for political underlings and a categorical refusal to subsidize even the most politically anodyne and practically valuable event participation by any employee. (Except, of course, for the commission's ruling class.) It is, as the letter's last paragraph makes clear, a literally and purely performative action. After years of performative exercises by administrations of both parties, one ought to be used to it, even as one notes the aggressively personalist and cumulatively authoritarian elements that distinguish the Trump administration. But one longs for the days of vaguely serious and non-trivial government, and vaguely serious and purposeful intellectual discussion directed at points of substance and significance.   

Posted by Paul Horwitz on February 15, 2025 at 11:19 AM in Paul Horwitz | Permalink | Comments (0)

Saturday Music Post - Messin' with the Kid

In 1960, "Messin' with the Kid" was written in Chicago by Mel London and Junior Wells and released by London's Chief Records (which probably explains why only London was credited on the label).  As the story goes, London arrived early to pick up Wells for a recording session, and Wells's young daughter accused him of "messin'" with her father, who was nicknamed The Kid. Writing the song was a historic collaboration, eventually becoming a blues standard, although its initial release on the small Chief label, instead of the much larger and nationally distributed Chess label, probably explains why Wells did not achieve the crossover success of his contemporaries such as Muddy Waters, Howlin' Wolf, and James Cotton. Blues afficionados, of course, are well aware of Wells and his long-time guitarist and bandmate Buddy Guy, who went on to his own lengthy solo career. You can see them together at The Faculty Lounge.

Posted by Steve Lubet on February 15, 2025 at 03:54 AM | Permalink | Comments (0)

Friday, February 14, 2025

Defining misinformation

Free speech advocates opposed government efforts, urged by members of the public, to restrict and eliminate misinformation about COVID, the 2020 election, January 6, conversion therapy, and other subjects. They warned, in part, about the danger of giving the government the power to define what is true and to restrict speech the government defines as "misinformation." If you give the Biden Administration the power to define the truth about COVID and to suppress as "misinformation" any speech that departs from that truth, nothing stops the Trump Administration from defining the truth about something liberals care about and suppressing as misinformation speech that departs from that truth.

I did not expect that the warning would become real over something as stupid as Donald Trump unilaterally renaming the Gulf of Mexico and his administration insisting that using that name reflects a "commitment to misinformation" worthy of sanction. Yet here we are.

Update: Eugene has more.

Posted by Howard Wasserman on February 14, 2025 at 11:05 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Nonsense--Not Acidental, But Deliberate

I suggested the other day that a lodestone of this personalist presidential administration is its historically familiar requirement of self-abasement: what better way to ensure the non-interference of principled and professional individuals, the kinds who gummed up the works last time, than to require anyone seeking an executive position to engage in a ritual act of self-humiliation--to deny one's own principles, the evidence of one's own eyes, and one's own good name? To be sure, there are committed ideologues and partisans seeded among the riffraff. But, apart from the fact that to think of Trump himself as an ideologue or partisan is to make a category mistake, partisanship and ideology are insufficient safeguards against the possibility that an individual might find in those beliefs something that transcends personal loyalty--not to the president as an officeholder or the presidency as an institution, but to the man himself. Ideologues and partisans may turn out to have character. Mandatory public self-abasement is the best way to weed out such people.   

Today's ongoing news about the Eric Adams transaction offers further evidence. The appearance of Mayor Eric Adams with Thomas Homan is Exhibit A. The appearance was not incidental; it was the point. That point was beautifully captured--again, in words with a remarkably apt historical resonance--by Adams's awkward silence and apt self-description: "I'm collaborating." (Truer words....) And it was underscored by Homan's suggestion that if Adams "doesn’t come through, I’ll be back in New York City,...in his office, up his butt, saying where the hell is the agreement we came to?" (I understand that confusing vulgarity with fortitude and energy is a bipartisan failing in a country that rejects dignity and tradition. I enjoy being vulgar myself, outside of the classroom. But I expect high officials to avoid it, even in an administration whose chief figure is famed as a short-fingered vulgarian.)

Recall that the president's* two stated excuses for wanting to dismiss the Adams indictment were that the timing of the indictment was improper, including its proximity to the primary and general elections, and that the indictment would interfere with Adams's support of the administration's immigration policies. Each was described as an independent justification. Neither was said to indicate any conclusions concerning Adams's guilt or innocence or the strength of the case against him.

How do Homan's words comport with these justifications? They strongly suggest two things. They suggest that the talk of interfering with the timing of the elections was the sheerest nonsense, since Homan's threat indicates that the administration will let the sword fall at a time of its own choosing, quite regardless of that timing. And they suggest that the president's argument* that there was an appearance of impropriety in prosecution because Adams criticized the Biden administration's immigration policies shortly before the indictment (but long after the commencement of the rigorously monitored investigation) are also nonsense. This administration has promised, in almost as many words, that it will refile charges against Adams (who it has not said is innocent) precisely if and when it is unhappy with him. This is not even the appearance of impropriety, but its very definition. A passage from Bolt's A Man For All Seasons springs to mind--one of many that do these days, actually, this one quite frequently: "MORE: You threaten like a dockside bully. CROMWELL: How should I threaten? MORE: Like a minister of state, with justice!"      

It is not surprising that I have seen no defenses of the administration's actions or the president's arguments by any lawyer who is even marginally fit for the profession. Those arguments are transparently poor. And that is not an accident, but the point. Adams labeling himself a collaborator, Homan indicating that he doesn't take the stated reasons for wanting to dismiss the indictment at all seriously as justifications for this transaction with the president, and the embarrassing lack of seriousness of those reasons (especially the president's follow-up letter* accepting Danielle Sassoon's resignation) would not serve their deeper function if they were not facially absurd and humiliating to those offering them (assuming a lack of ignorance and the capacity for shame) and publicly offered. A serious effort might indicate the belief that a serious effort is called for, and that a proper counter-argument might change one's mind despite the presidential will. Obviously the justifications and arguments are lies, marginal fig leaves for a corrupt deal. But the important thing is that they be visibly bad ones. Anything else would be contrary to personalist administration, both because a proper effort at justification would imply that the president cannot do as he wishes, and because they would not provide the requisite element of self-abasement on the part of the people offering them. This administration's fundamental approach to securing the personal loyalty of its officials it to require that they behave in a way that leaves them fit for no further decent use elsewhere. And advertising the fact that unfitness and unseriousness are job requirements for service in the administration helps winnow the pile of resumes. Every administration has its share of individuals who are vice-ridden, casual or contemptuous of the truth, lacking in character, dishonest, care too much about their own skin, curry favor, flatter like sycophants, and, yes, have the personality of dockside bullies. What is unusual is the structuring of an entire administration to make this a feature, not a bug.  

* Technically, some of these arguments were not made by the president himself, but by underlings like Emil Bove. It seems fitting to attribute his words, and Homan's to the president directly, since the indivisibility of this executive branch is its basic position. Trump's own statement that he "know[s] nothing about the individual case," which is also probably a lie, are irrelevant.  

Posted by Paul Horwitz on February 14, 2025 at 05:39 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, February 13, 2025

The Core Problems with Boycott and Divestment

Continue reading "The Core Problems with Boycott and Divestment"

Posted by Steve Lubet on February 13, 2025 at 05:42 AM | Permalink | Comments (0)

Wednesday, February 12, 2025

Symposium: "In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society"

I'm looking forward to this symposium, being sponsored by the Chicago-Kent Law Review: 

Over the past several decades, America’s religious diversity has continued to grow rapidly, as have the percentages of Americans who either are not religious or are not affiliated with a specific religious group or denomination. At the same time, America’s deepening cultural and political divisions have often followed these expanding religious fault lines. These developments have raised new challenges for defining the relationship between law, religion, and secularism under the Religion Clauses of the First Amendment and beyond. At the Chicago-Kent Law Review’s Symposium, leading law-and-religion scholars who represent a broad spectrum of views will explore a range of doctrinal issues – such as free exercise exemptions, government expression and funding, and the meaning of religion under the First Amendment – and will discuss how people who hold very different worldviews can live together in contemporary society.

The public is welcome to sign-up and participate so . . . "see" you there!

Posted by Rick Garnett on February 12, 2025 at 11:22 AM in Rick Garnett | Permalink | Comments (0)