Colorado understands the Plaintiff States’ frustration that national marijuana policy now hinges on a series of executive memoranda articulating a policy of “prosecutorial discretion.” See, e.g., Cole Memo at 3. But, again, although the Plaintiff States are willing to challenge the Administration’s non- enforcement of federal law, see Texas v. United States, 2015 U.S. Dist. LEXIS 18551, they have not done so here.
This demonstrates the need for the federal government’s involvement in this case. The Complaint and Brief in Support raise questions of federal enforcement policy that are “distinctively federal interests, best presented by the United States itself.”
As I noted, the true party in interest in this case is the United States, for its failure to enforce the controlled substance laws. In today’s orders, the Court has called for the views of the United States.
Now, finally, we will get the Obama Administration on record explaining its failures to faithfully execute the laws. And yes, that will be cited in the inevitable Texas v. United States merit briefing.
Thursday evening I (finally) got to see The Originalist. This post will have spoilers, so stop reading if you still wish to see it. The show begins with Justice Scalia giving a talk at a law school. Edward Gero, the actor playing Scalia, got his mannerisms down to a tee. The voice was slightly off–not quite grumpy enough–but the facial expressions and smirks were perfect. Scalia is talking about why the Constitution does not allow affirmative action. Out of nowhere, an audience member sitting in the front row stands up and calls out to Scalia. After a moment, we realize that she is part of the play. She challenges Scalia that under the original Constitution, slavery was allowed. Scalia indulges her, and wishes her good luck with her legal career. She replies that she has an interview with him. D’oh.
The interview scene is fascinating, but unrealistic. Scalia desired to hire a liberal clerk to help him dismantle the other side’s arguments. The clerk-to-be, Kat–who went to HLS and clerked for Judge Wood–plays that part well. She’s not afraid of sparring with Scalia, and calls him a monster. Scalia plays the role well.
After she is hired, the Justice and the clerk have a number of discussions concerning United States v. Windsor. Scalia asks her if she can write an objective opinion. She says yes. Much of the play is about her proving that she can be accomplish that goal.
Scalia also takes her shooting. They use an AR-10. In what was definitely a nod to Justice Kagan, the “flaming” liberal loves shooting. (Really, it is a blast!).
In one of the odder turns, Scalia says someone from the Federalist Society would “help” Kat with her Windsor opinion. Absurd. But anyway, he is a sycophant ass-kisser, who worships the ground Scalia works on. In one of the more tense moments, the sycophant leaks to Politico that the clerk is a lesbian. In a showing of grace, Scalia tells her that he doesn’t care what she does in her personal life, even though later in the play Scalia insists that none of his kids could ever be gay. It was very touching the way they portrayed the scene, because she was mortified of what he would say.
In another moving scene, the clerk’s father passes away. Scalia takes her to church, and they pray together.
In the closing scenes, Kat tries to persuade Scalia to add a sentence to his Windsor dissent, acknowledging that both sides have valid points. Scalia refuses to do so, and insists he is the Justice. But in the final scene, Scalia reads his Windsor dissent from the bench, and includes that sentence. I checked his announcement from the bench, and as best as I can tell, that line was ad-libbed.
The program acknowledged Joan Biskupic and Nina Totenberg, who no doubt helped to lend an air of legal accuracy to the production. I would highly recommend it!
DOJ’s redacted brief in response to Judge Hanen’s April 7 order is here. Here is the summary:
Defendants respectfully submit this filing, along with an in camera production of privileged documents and a privilege log, in response to the Court’s Order of April 7, 2015.1 Defendants and the Department of Justice (DOJ) take extremely seriously their obligation of candor to the courts in representing the interests of the United States and recognize the Court’s legitimate interest in ensuring the candor of those appearing before it. DOJ and Defendants have fulfilled that duty in this case, and they regret and apologize for the misunderstanding that inadvertently resulted from their statements about the effective dates for actions under the November 20, 2014 Deferred Action Guidance at issue in this case. But, as the broad array of privileged material being submitted pursuant to the Court’s Order helps demonstrate, neither that misunderstanding nor the timing of the Government’s notice to the Court concerning this matter was the product of a lack of candor or bad faith or calculated delay. Rather, the misunderstanding was the inadvertent result of Government counsel’s effort to be forthcoming with the Court about matters related to the preliminary injunction motion. The Government did not attempt to mislead the Court or engage in any other intentional misconduct; no basis exists for imposing sanctions; and the imposition of sanctions would, in any event, be improper in the absence of additional procedures.
DOJ also filed over 1,000 pages in camera, but urges the court not to review it, because it may interfere with the current appeal:
2. As described more fully in Part IV below, we are submitting in camera privileged lists of individuals who “knew about th[e] Advisory, or about the DHS activity discussed therein,” Order at 11, as well as 1163 pages of privileged documents, comprising the results of our search for “any and all drafts of the March 3, 2015 Advisory, including all corresponding metadata and other tangible items that indicate when each draft of the document was written and/or edited or revised.” April 7 Order at 11. However, we do not believe it necessary for the Court to review those materials, because this filing and the privilege log are sufficient to show that the Advisory was filed after counsel for Defendants realized that there had been a potential for misunderstanding. Furthermore, the underlying materials, which concern the drafting and filing of a document in ongoing litigation, reside at the core of the work product doctrine, the attorney-client privilege, and the deliberative process privilege. Exposure of such sensitive materials, even in camera, while the underlying suit remains pending on the merits before the Court could create significant difficulties, and thus should be avoided. In all events, this privileged information should not be disclosed to Plaintiffs. See, e.g., In re United States, 397 F.3d 274, 285-86 (5th Cir. 2005).
On April 13, the Stetson Law School in beautiful Gulf Port, Florida hosted me for a discussion on Obamacare, with commentary by Prof. Michael Finch.
Here is the video:
On my desk at my office, I keep a stack of pocket Constitutions, the same way people may keep a jar of candy. I always encourage whoever stops by to take one. Today a visitor told me that he didn’t need one because he read the entire Constitution in the 8th Grade. I asked him when he finished the 8th Grade. He replied, 1992. Well, I told him, you didn’t read the 27th Amendment because it was not ratified until May 7, 1992, with Michigan’s vote. So you didn’t read the *entire* Constitution. Then he asked why it was so important, and I explained that initially this was the 2nd proposed Amendment, ahead of our right to free speech! He took a Constitution and said he would read it. #ConLawNerd.
To help everyone preparing for finals, all of my lectures are available on YouTube in playlists. You can view Property I, Property II, and ConLaw lectures. One of the best parts of lecturing across the country is meeting students at different law schools who learn from my videos. It is extremely rewarding. Good luck!
Tonight at 6:00, I am attending the Supreme Court Historical Society’s Griswold Lecture on the Nixon Court. Justice Scalia, who served in the Nixon Administration, will be speaking. At 8:00 I have tickets to see “The Originalist,” starring Edward Garo as Justice Scalia.
In other words, first we have real Scalia, then we have fake Scalia.
I’ll let you know which one I prefer.
Judge Easterbrook dropped the ball in his opinion upholding the City of Highland Park’s ban on so-called “assault weapons.” He read Heller and McDonald so narrowly as to disregard them, and at the end dared the Justices to tell him that he is wrong.
Easterbrook’s main argument focuses on the “historical tradition.” The 2nd Amendment was ratified in 1791. Heller was decided in 2008. In the intervening two centuries, for all intents and purposes, there was no judicially enforced 2nd Amendment right in the federal courts. (I am putting aside how state courts interpreted state constitutional amendments). Take for example everyone’s favorite, the machine gun. Easterbrook notes that states did not regulate them until 1927, and the federal government did not tax them until 1934 with the National Firearms Act. (It was the violation of the latter statute that snared the defendant in United States v. Miller). So between 1934 and 2008, there was no meaningful limit on how the government could regulate arms. Consider a counterfactual. If Miller came out the other way, and the National Firearms Act was invalidated, machine guns very well would be in “common use.” (As a practical matter, machine guns are not very practical so this is unlikely).
But Easterbrook takes this in a different direction.
How weapons are sorted between private and military uses has changed over time. From the perspective of 2008, when Heller was decided, laws dating to the 1920s may seem to belong to a “historical tradition” of regulation. But they were enacted more than 130 years after the states ratified the Second Amendment. Why should regulations enacted 130 years after the Second Amendment’s adoption (and nearly 60 years after the Fourteenth’s) have more validity than those enacted another 90 years later?
What is the correct lineage for the history? The century between the ratification of the 2nd Amendment, or the century preceding Heller? Easterbrook asks why a law enacted in the 1930s should be any stronger than a law enacted in 2013 in terms of tradition. Easterbrook suggests that time does not create an “easement” across the Second Amendment.
Nothing in Heller suggests that a constitutional challenge to bans on private possession of machine guns brought during the 1930s, soon after their enactment, should have succeeded—that the passage of time creates an easement across the Second Amendment. See United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc). If Highland Park’s ordinance stays on the books for a few years, that shouldn’t make it either more or less open to chal‐ lenge under the Second Amendment.
Easterbrook rejects the argument that you should look to how common a weapon is at the time of the litigation.
And relying on how common a weapon is at the time of litigation would be circular to boot. Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi‐automatic weapons with large‐capacity magazines are owned more commonly because, until recent‐ ly (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.
And what makes a weapon in “common” use?
Yet High‐ land Park concedes uncertainty whether the banned weap‐ ons are commonly owned; if they are (or were before it en‐ acted the ordinance), then they are not unusual. The record shows that perhaps 9% of the nation’s firearms owners have assault weapons, but what line separates “common” from “uncommon” ownership is something the Court did not say.
And what makes a weapon “dangerous”? Not how often it is used for murder, but how dangerous it is to other kinds of weapons.
The large fraction of murders committed by handguns may reflect the fact that they are much more numerous than assault weapons. What should matter to the “danger” question is how deadly a single weapon of one kind is compared with a single weapon of a different kind.
As he did in Skoien, Easterbrook seeks to read Heller as narrowly as possible.
The problems that would be created by treating such empirical issues as for the judiciary rather than the legisla‐ ture—and the possibility that different judges might reach dramatically different conclusions about relative risks and their constitutional significance—illustrate why courts should not read Heller like a statute rather than an explana‐ tion of the Court’s disposition. The language from Heller that we have quoted is precautionary: it warns against readings that go beyond the scope of Heller’s holding that “the Second Amendment creates individual rights, one of which is keep‐ ing operable handguns at home for self‐defense.” Skoien, 614 F.3d at 640.
Since Heller, as Easterbrook notes, the Court has been silent on the scope of the right. In the meantime, the lower courts have continued to read it as narrowly as possible.
Heller does not purport to define the full scope of the Second Amendment. The Court has not told us what other entitlements the Second Amendment creates or what kinds of gun regulations legislatures may enact. Instead the Court has alerted other judges, in Heller and again in McDonald, that the Second Amendment “does not imperil every law regulating firearms.” McDonald, 561 U.S. at 786 (plurality opinion); Heller, 554 U.S. at 626–27 & n.26. Cautionary lan‐ guage about what has been left open should not be read as if it were part of the Constitution or answered all possible questions. It is enough to say, as we did in Skoien, 614 F.3d at 641, that at least some categorical limits on the kinds of weapons that can be possessed are proper, and that they need not mirror restrictions that were on the books in 1791.
What about the standard of review? Here too the Court has been silent:
So far, however, the Jus‐ tices have declined to specify how much substantive review the Second Amendment requires. Two courts of appeals have applied a version of “intermediate scrutiny” and sus‐ tained limits on assault weapons and large‐capacity maga‐ zines. See Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (a law materially identical to Highland Park’s is valid); Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (a ban on magazines holding more than ten rounds is valid).
Rather than scrutiny, Easterbrook would simply look to weapons that were in common use at the time of the ratification (hello muskets) or weapons useful to the militia (Miller).
But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law‐abiding citizens retain adequate means of self‐defense.
This is not the holding of Heller. A handgun and an AR-15 would be of equal use for self defense, or for that matter in the militia. But as framed, Easterbrook can effectively limit Heller to its holding about handguns, and nothing else.
Remarkably, Easterbrook ties the “militia” prong not only to what weapons are usable in the militia, but limits it to what the state determines should be allowed.
Some of the weapons prohibited by the ordinance are commonly used for military and police functions; they there‐ fore bear a relation to the preservation and effectiveness of state militias. But states, which are in charge of militias, should be allowed to decide when civilians can possess mili‐ tary‐grade firearms, so as to have them available when the militia is called to duty. (Recall that this is how Heller under‐ stood Miller.)
This circularity makes no sense. Isn’t the question whether the state can regulate the weapon? How could it possibly be that the regulation is justified because the state can regulate it?
What about self defense? As he must, Easterbrook concedes that an AR-15 is “beneficial” for self defense.
True enough, assault weapons can be beneficial for self‐ defense because they are lighter than many rifles and less dangerous per shot than large‐caliber pistols or revolvers. Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.
Easterbrook counters, with no evidence that “Assault weapons” are the weapons of choice for “Mass Shootings!!!!!”
But assault weapons with large‐capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate. Why else are they the weapons of choice in mass shootings? A ban on assault weapons and large‐capacity magazines might not prevent shootings in Highland Park (where they are already rare), but it may reduce the carnage if a mass shooting occurs.
This is false. This report compiled by the Connecticut government finds that the overwhelming majority of mass shootings involved handguns, not assualt weapons. (H/T Will Scharf)
In any event, this flips the question. Weren’t we just talking about self defense. Why are now talking about how these guns could be used in mass shootings?
Easterbrook reduces the scrutiny to borderline rational basis–even if the ban doesn’t eliminate a problem, it may make those problems less dangerous, or even may make people feel safer!
A ban on assault weapons won’t eliminate gun violence in Highland Park, but it may reduce the overall dangerousness of crime that does occur. … If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety. Mass shootings are rare, but they are highly salient, and people tend to overestimate the likelihood of salient events. See George F. Loewenstein, Christopher K. Hsee, Elke U. Weber & Ned Welch, Risk as Feelings, 127 Psychological Bulletin 267, 275–76 (2001); Eric J. Johnson, John Hershey, Jacqueline Meszaros & Howard Kunreuther, Framing, Probability Distortions, and Insurance Decisions, 7 J. Risk & Uncertainty 35 (1993). If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.
Over-reaction to mass shootings? If only someone wrote an article about that…
After offering a heap of evidence to support the state, Easterbrook says what pervades his entire opinion–let the democratic process define the counters of this enumerated right.
Heller and McDonald set limits on the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self‐defense is through the political process and scholarly debate, not by parsing ambigu‐ ous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Con‐ stitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legisla‐ tive process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).
Easterbrook repeats a canard advanced in McDonald v. Chicago–that constitutional rights should mean different things in different places. Let federalism serve as the laboratories of democracy!
Another constitutional principle is relevant: the Constitu‐ tion establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local gov‐ ernments, but it does not foreclose all possibility of experi‐ mentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim.
Nonsense. The laboratories of democracy Justice Brandeis wrote of refers to adding constitutional rights, not subtracting them. The Heller majority did reject Justice Breyer’s argument that the “urban” D.C. environment changed the constitutional calculus. Federalism does not work here.
Easterbrook is borderline-contemptuous of Heller, and tries as hard as he can to minimize it to a nullity. And he even dares the Justices to do tell him he’s wrong:
Whether those limits should be extended is in the end a question for the Justices. Given our understanding of existing limits, the judgment is affirmed.
He was reversed before in the case that became McDonald v. Chicago. He should be reversed again.
Beyond constitutional law, Judge Easterbrook made a number of fundamental mistakes about firearms. My friend Will Scharf offers a helpful list:
(1) Page 4: “The AK‐47 and AR‐15 (M16) rifles in military use also are submachine guns, though civilian versions are re‐ stricted to semi‐automatic fire.”
No they’re not; they’re assault rifles. Submachine guns fire pistol calibre cartridges by definition. The AK and AR fire 7.62 and 5.56 mm rifle cartridges, respectively.
(2) Passim: Machine guns are not “illegal.” He keeps referring to them as illegal throughout the opinion. That’s just a bad misstatement of the law. They’re illegal if you don’t have a federally-issued NFA license; with an NFA registration, they’re legal. Calling them “federally-regulated” would have been more accurate.
(3) Page 6: Easterbrook seems blissfully unaware that you can buy large cap magazines for handguns.
(4) Page 6: “We also know that assault weapons gen‐ erally are chambered for small rounds (compared with a large‐caliber handgun or rifle), which emerge from the barrel with less momentum and are lethal only at (relatively) short range.” Is Easterbrook saying that a 5.56 from an AR emerges from the barrel with less momentum than a cartridge from a large-caliber handgun? Out of a 5 inch barrel, a .45 ACP bullet is moving at about 1,000 fps. An AR-15 will typically give you about 3,000 fps with a 5.56. The much smaller 5.56 is much, much more powerful in terms of kinetic energy and is lethal at a significantly longer range than the handgun bullet.
(5) Page 6: “This suggests that [assault weapons] are less dangerous per bullet—but they can fire more bullets.” Page 9: “assault weapons can be beneficial for self‐defense because they are lighter than many rifles and less dangerous per shot than large‐caliber pistols or revolvers.”
He doesn’t seem to understand that a 5.56mm round from a rifle cannot be compared to, for example, a 9mm round from a pistol—the ballistic characteristics of the two are just wholly different. The 5.56, while technically smaller, is far more powerful and lethal.
(6) Page 9: “Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.” The “pistols James Bond preferred” were little Walther PPK/Ss, chambered in .380 ACP at most. That’s a tiny cartridge. Easterbrook making them out to be big and scary is absurd. Just look at ’em! They’re little and sleek.
(7) Page 9: “Why else are they the weapons of choice in mass shootings?” This isn’t true. Most mass shootings involve handguns, and few involve assault weapons. And when they do involve assault weapons, they typically also involve handguns. I count 33 out of 49 using handguns and not what Easterbrook would call an assault weapon here: http://www.cga.ct.gov/2013/rpt/2013-R-0057.htm
(8) Page 11: “If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.” WHAT?!? Now he’s saying/implying that a ban on semi-automatic guns would be valid? That’s far, far beyond the assault weapon ban at issue.
In Williams-Yulee, Justice Scalia opens up on the unelected judiciary (his colleagues), which faults Floridians who want to elect their judges. This dissent is blistering:
The Court tries to strike a pose of neutrality between appointment and election of judges, but no one should be deceived. A Court that sees impropriety in a candidate’s request for any contributions to his election campaign does not much like judicial selection by the people. One cannot have judicial elections without judicial campaigns, and judicial campaigns without funds for campaigning, and funds for campaigning without asking for them. When a society decides that its judges should be elected, it neces- sarily decides that selection by the people is more im- portant than the oracular sanctity of judges, their immun- ity from the (shudder!) indignity of begging for funds, and their exemption from those shadows of impropriety that fall over the proletarian public officials who must run for office. A free society, accustomed to electing its rulers, does not much care whether the rulers operate through statute and executive order, or through judicial distortion of statute, executive order, and constitution. The prescrip- tion that judges be elected probably springs from the people’s realization that their judges can become their rulers—and (it must be said) from just a deep-down feel- ing that members of the Third Branch will profit from a hearty helping of humble pie, and from a severe reduction of their great remove from the (ugh!) People. (It shouldnot be thought that I myself harbor such irreverent and revolutionary feelings; but I think it likely—and year by year more likely—that those who favor the election of judges do so.) In any case, hostility to campaigning by judges entitles the people of Florida to amend their Con- stitution to replace judicial elections with the selection of judges by lawyers’ committees; it does not entitle the Florida Supreme Court to adopt, or this Court to endorse, a rule of judicial conduct that abridges candidates’ speech in the judicial elections that the Florida Constitution prescribes.
I think this may be why Justice Alito didn’t join the dissent.
Scalia closes by lambasting the “Brotherhood of the Robe”:
This Court has not been shy to enforce the First Amendment in recent Terms—even in cases that do not involve election speech. It has accorded robust protection to depictions of animal torture, sale of violent video games to children, and lies about having won military medals. See United States v. Stevens, 559 U. S. 460 (2010); Enter- tainment Merchants, 564 U. S. ___; Alvarez, 567 U. S. ___. Who would have thought that the same Court would today exert such heroic efforts to save so plain an abridgement of the freedom of speech? It is no great mystery what is going on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is—but so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.
On 4/15/20, the Texas Tech Federalist Society hosted me for a discussion on 3D Printed Guns. Here is the video.
In November, the Chief Justice told advocates not to cite Magna Carta.
“If you’re citing Magna Carta in a brief before the Supreme Court of the United States, or in an argument, you’re in pretty bad shape,” Chief Justice Roberts said. “We like our authorities a little more current.”
Today in Williams-Yulee, he cited Magna Carta.
The way the Canon advances those interests is intuitive: Judges, charged with exercising strict neutrality and independ- ence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This princi- ple dates back at least eight centuries to Magna Carta, which proclaimed, “To no one will we sell, to no one will we refuse or delay, right or justice.” Cl. 40 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 395 (2d ed. 1914).
Happy 800th Birthday Great Charter!
In addition to the end-of-semester rush, a few big projects have been keeping me busy:
- The Constitutionality of DAPA Part I in the Georgetown Law Journal Online
- The Constitutionality of DAPA Part II in the Texas Review of Law & Politics
- State Judicial Sovereignty, to be published in the Illinois Law Review
- Collective Liberty, to be presented at the Yale Law School Freedom of Expression Conference
- Cert-Stage Amicus in Schwalier v. Carter (Appointments Clause case)
Plus I have two more briefs I’m working on that haven’t been filed yet, but will be available soon. Stay tuned.
I have posted to SSRN my new article, “Collective Liberty.” This article brings together several themes I’ve developed on the blog over the years with respect to the move on the left towards a collective notion of free speech and exercise, mirrored by the move on the right towards more robust protection for freedom of speech and exercise. Here is the abstract:
The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these the two is well known. Judicial protection of individual liberty inhibits the collective from freely arranging society through the democratic process. In contrast, judicial protection of this collective freedom to structure society may infringe on individual liberty, especially for those out of the mainstream. Like a pendulum, over the last century, the rights of free speech and exercise have swung between the individual and the collective, between right and left. This article traces these arcs from individual liberty to collective liberty, and back.
Historically, progressives tended to favor broad conceptions of individual rights, with respect to protecting unpopular speech and minority religious groups. Conservatives, in contrast, often disfavored such rights to the extent they impeded the preservation of traditional social norms and structuring society. In recent years there has been a reversal, as the right has asserted the mantle of individual liberty against claims of governmental intrusion into time-honored institutions. But for the left, a robust freedom of speech and religion—no longer serving progressive causes of social justice and equality—can now more easily be subordinated to what Justice Breyer referred to as “collective” liberty.
By looking at two controversial cases in this arena—McCutcheon v. FEC and Burwell v. Hobby Lobby—this article chronicles the juxtaposition of positions on the right and left between collective, and individual views of rights, and explains what this means for the development of the First Amendment on the Roberts Court, as freedom from government clashes with freedom by government.
I will be presenting this paper next week at the Floyd Abrams Freedom of Expression Scholars Conference at Yale Law School. The hosts of the conference said my proposal was “provocative.” I suspect it will be.
I welcome any comments or insights you have.
I am pleased to announce that “State Judicial Sovereignty” will be published in the Illinois Law Review. Here is the abstract.
In our “dual sovereignty,” we have a dual judiciary. While the Constitution creates a single Supreme Court, and gives Congress the power to constitute inferior tribunals, predating our federal union were the courts of the states. Through concurrent jurisdiction, these courts, subject to the complete control of the states, were deemed parallel forums to adjudicate federal claims. Yet, in specific areas, Congress designated the federal courts as the exclusive forums of certain federal claims, depriving the state courts of that jurisdiction. In other areas, the Supreme Court has determined that state courts, with or without the consent of the state, are required to entertain certain federal causes of action.
Each of these well-known features of our judicial system — concurrent, mandatory, and exclusive jurisdiction — represents efforts by one sovereign, the federal government, to command and control the jurisdiction of another sovereign, the states. Though the power to mandate, and exclude state court jurisdiction has been construed broadly, certain limits have been placed on this authority based on a respect for the autonomy of each state to manage their courts. I refer to the basis of these constraints on federal power as state judicial sovereignty. State judicial sovereignty refers to the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, federal causes of action.
This article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’s efforts to use, or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents. First, state judge sovereignty refers to the constitutional obligations and state-law duties, of state judges with respect to federal causes of action. Second, state jurisdictional sovereignty, explains the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution. Third, state judge sovereignty, working under the auspices of state jurisdictional sovereignty, places a limit on the federal government’s power to regulate the state court, based on the anti-commandeering principle.
The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. This article aims to bring some clarity to those boundaries.
New SCOTUS Amicus: Can Congress “Establish By Law” Process for Appointment After Senate Confirmation?
In Marbury v. Madison, Chief Justice Marshall concluded that “since [William Marbury’s commission] was signed by the President, and sealed by the secretary of state, [Marbury] was appointed.” Even though it was not delivered, “[t]o withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.” That much is black-letter law. But Marbury recognizes another, equally important proposition concerning the appointment power. At every juncture—even after the confirmation vote—the laws of Congress established the process through which Marbury would become an officer of the United States. The Court recognized that Congress has the power to “establish by law” the means of finalizing an appointment.
In a cert-stage amicus brief I authored on behalf of the Military Officers Association of America and the Flag & General Officers’ Network, I argue that Congress can structure this process, and the Federal Circuit erred in holding that such a process violates the separation of powers. The amicus is in support of a cert petition filed by Paul Smith, Matt Hellman, Adam Unikowsky, and the team at Jenner & Block on behalf of Gen. Terryl Schwalier.
As relevant to this case, President Clinton nominated Schwalier for promotion for a 1-star General to a 2-star General. He was confirmed by the Senate. In the meantime, Schwalier, who was in command of the Khobar Towers, took the blame for the bombing there (he was later cleared of any wrongdoing). After the return of the nomination, the President transmitted the nomination to the Secretary of Defense, who calculated and set what is known as a “promotion date” under the Defense Officer Personnel Management Act (“DOPMA). After that date is set, the President has 6 months to review the appointment. Schwalier argues that after the 6 months, if the President does not revoke the appointment, Schwalier’s promotion becomes final. President Clinton did not terminate the promotion until after the 6 month window.
At first glance, I thought, of course this is unconstitutional. Isn’t it the President’s prerogative to decide whether or not to appoint someone absolute? After some study, I realized that Marbury recognizes that Congress has a lot of latitude over the appointment process following nomination, and that under the statute the President’s transmission of the promotion list to the Secretary of Defense manifests his assent to begin the process.
Here is the summary of argument of this brief, which was a lot of fun to write:
Marbury v. Madison provides the rule of decision for this case. 5 U.S. (1 Cranch) 137 (1803). The decision below, Schwalier v. Hagel, 776 F.3d 832 (Fed. Cir. 2015) was “control[led]” by Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004). In Dysart, the Federal Circuit considered a provision of the Defense Officer Personnel Management Act (“DOPMA”) that established a process for finalizing the appointment of certain military officers. 10 U.S.C. § 624(a)(2). Finding that this law would violate the separation of powers, the Federal Circuit read DOPMA such that “after confirmation,” Congress has no power over the appointment process. Dysart, 369 F.3d at 1316. This conclusion is contrary to the text and history of the Constitution, as well as Marbury v. Madison. 5 U.S. at 158 (1803). The Court should grant certiorari to reaffirm Congress’s constitutional authority to “establish by law” officers of the United States.
First, the Constitution vests Congress with broad authority over the appointments process, “which shall be established by law.” Art. II, § 2, cl. 2. This authority exists both before and after Senate confirmation. Prior to confirmation, the Congress can establish qualifications for officers. For example, the Solicitor General must be “learned in the law.” 28 U.S.C. § 505. Certain military officers must satisfy congressionally-imposed eligibility criteria before receiving a promotion. 10 U.S.C. §§ 611-641.
Congress can also establish the process that finalizes the appointment following confirmation. In Marbury, Chief Justice Marshall affirmed that Congress has the power to chart a “precise course accurately marked out by law,” to complete the appointment. 5 U.S. at 158. Though the President retains the absolute right not to appoint an officer, this congressionally-designed process “is to be strictly pursued.” Id. The Court reaffirmed this principle in Freytag v. Commissioner, finding that Congress can set the “duties, salary, and means of appointment for that office [as] specified by statute.” 501 U.S. 868, 881 (1991) (emphasis added).
Second, contrary to the Federal Circuit’s conclusion in Dysart, DOPMA bolsters the Constitution’s separation of powers. 369 F.3d at 1317. The Framers used the phrase “by law” in ten places in the Constitution to vest Congress with extraordinary authority to legislate over the Executive Branch, the States, individuals, and even its own members. This power includes the ability to design the appointment process to be followed for officers “established by law.” Art. II, § 2, cl. 2. The Federal Circuit’s decision nullifies this congressional power.
Finally, the appointment process in Marbury parallels the appointment process in this case. In Marbury, the final act “established by law” was sealing the commission, following Presidential assent. Under § 624(a)(2) of DOPMA, the final act “established by law” was setting the promotion date, following Presidential assent. Consistent with Marbury, Congress, and not the President, determines how the Executive’s assent is manifested. For § 624(a)(2) of DOPMA, the President’s decision to transmit the list of confirmed names to the Secretary of the Air Force manifests his assent to begin the appointment process. Upon the Secretary’s receipt of the list of confirmed names, Congress charges him with the duty to set the promotion date. This calculation triggers a congressionally-designed six-month window for the officer’s appointment. While the President retains the absolute power to revoke his previous assent at any point during this period, after six months the officer’s appointment “established by law” becomes final.
Consistent with Marbury v. Madison, § 624(a)(2) of DOPMA is a permissible exercise of Congress’s authority under the Appointments Clause. Certiorari should be granted, as this Court’s voice is essential to reaffirm once again Congress’s constitutional role in the appointment process. NLRB v. Noel Canning, 134 S.Ct. 2550, 2578 (2014).
After Noel Canning, I think there is a decent shot the Court gets involved.
DOPMA’s appointment process is a permissible exercise of Congress’s authority under the Appointment Clause. The Federal Circuit erred in its sub silentio invalidation of 10 U.S.C. § 624(a)(2), as it negated Congress’s role in ensuring an orderly and fair appointment process for military officers of the United States. As this Court recognized last term, “the separation of powers can serve to safeguard individual liberty . . . [and] it is the ‘duty of the judicial department’—in a separation-of-powers case as in any other—‘to say what the law is.’” Noel Canning, 134 S.Ct. 2559-60 (quoting Clinton v. City of New York, 524 U.S. 417, 449-450, (1998) (Kennedy, J., concurring); Marbury, 5 U.S. at 177
More likely than not, this petition will fall into the long conference, depending what the government does. Stay tuned.
Final Editions: The Constitutionality of DAPA Part I in Georgetown Law Journal Online, and Part II in the Texas Review of Law & Politics
I am pleased to announce that my two articles on the legality of DAPA are now final. First, the Georgetown Law Journal Online has published my article, “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action.” Second, the Texas Review of Law & Politics has published my article, “The Constitutionality of DAPA Part II: Faithfully Executing The Law.”
A brief note about the origin of these pieces. DAPA was announced on November 20, 2014. After my initial cautious reactions (NY Times, LA Times), I began to realize that the OLC memo justifying the policy had weaknesses from a separation of powers perspective (National Review), but I did not know nearly enough about immigration law to make an informed judgment. Over the next month, I dove deep into the INA, and thanks to the help of a few colleagues who are experts in this area, I began to sketch a theory of how DAPA was inconsistent with previous grants of deferred action. That work culminated in Part I.
I owe a deep and special thanks to the editors of the Georgetown Law Journal Online. Last summer we had discussed publishing a reaction piece on Noel Canning, but by the time I was done with it, it took on a life of its own and became Gridlock and Executive Power. (At this point, it will probably become a book before an article). But we stayed in touch. When I realized that the timing of this article would be critical, I reached out to the editors of the GLJ Online, and they were enthusiastic to provide a home for this timely piece. They managed to go through the entire publishing process in less than three months.
As I was writing Part I, I realized there was a significant gap with respect to the constitutional issue–there was very little written on the Take Care Clause and DAPA. So, rather than trying to fit in a Take Care clause analysis in Part I, where it didn’t really fit, I decided (on about 2 minutes of deliberation) that I needed to write a second article, focusing solely on the Take Care clause. This article evolved parallel to the litigation in the district court (see here and here). As Texas offered new arguments, and the government produced numerous documents and declarations, I was able to piece together how DACA, and now DAPA, operate. I could not have written the article I did at the outset
I also owe a debt of gratitude to the editors of the Texas Review of Law & Politics. I pitched the idea to the editors on December 26, 2014, with only an outline of what I wanted to write about. Based only on the idea, they accepted it. I labored to write the article in about 6 weeks. They expedited it through the editing and publication process, and published a polished piece that offers a top-to-bottom analysis of DAPA. I still can’t believe it came together the way it did.
(On the downside, I had no time to work on my Obamacare book during the past three months, but duty called).
There is always the risk when publishing an article of being preempted. These articles posed a significant risk. Had the district court dismissed the challenge, and the program gone into effect, the articles wouldn’t have been worth the paper they were printed on. But here, the publishing risk paid off for the journal. Kudos to these enterprising and entrepreneurial law journals.
The First Amendment – Free Exercise
- Freedom of Religion (1103-1104).
- Madison’s Memorial and Remonstrance against Religious Assessments (1104-1106).
- The Free Exercise Clause (1110-1111).
- Wisconsin v. Yoder (1113-1116)
- Employment Division v. Smith (1116-1124).
- Note 7 on Religious Freedom Restoration Act (RFRA) (1126-1127)
- Burwell v. Hobby Lobby (2014) (Reading TBD)
- Church of the Lukumi (1128-1129)
- Establishment Clause (1133).
Employment Division v. Smith
And here is a photograph of the seal of the Employment Division of Oregon.
In 2009 when Justice Souter retired, the Blog of the Legal Times reported that his papers would be released in 50 years. My buddy Mike Sacks and I made a pact to visit the New Hampshire Historical Society in 2059. In that year, god willing, I will be 75, which is Justice Souter’s age today.
It turns out the papers won’t be available in 2059, or 2060, or even 2064. We don’t know when they will be available, because Justice Souter instructed the New Hampshire Historical Society to release them 50 years after his death. Thanks to the inquisitiveness of Gerard Magliocca, and the reporting of Tony Mauro, we now know that Souter threatened to incinerate his papers if they were not embargoed for half a century after his death.
Justice Souter told Gerard:
“I have given such papers as I’ve retained to the New Hampshire Historical Society, to be opened for inspection after the 50th anniversary of my death. By that time, they will be of interest only to the historians taking the long view.”
“As I’ve retained” suggests there are other papers that are not retained–in other words, destroyed.
Tony reported that the Executive Director of the Historical Society said Souter was “emphatic” about the embargo.
Bill Veillette, the historical society’s executive director in 2009, also confirmed on Wednesday that Souter’s wish all along was for release of his papers 50 years after his death, not his retirement.
“He was very emphatic about it,” Veillette recalled. “He told me, ‘I’ve got an incinerator outside my house, and either you agree to 50 years after my death, or they go into the incinerator.’” Since many papers are donated by families decades or centuries after a notable person’s death, Veillette said Souter’s 50-year delay seemed relatively brief. Veillette is now the executive director of the Northeast Document Conservation Center in Massachusetts.
If Justice Souter lives to be Justice Stevens’s current age, then the papers will not be released until 2085. I will be 101 in that year. If I’m even still around, there is a distinct possibility that I will be one of the few remaining lawyers who knew of Justice Souter as an active Justice. What a travesty. I hate to break it to Justice Souter, but by the time 2085 comes along, I don’t think any historians will care much about him, or his role on the Court. And that’s exactly the way he wants it.
The First Amendment Speech II
- Brown v. EMA (887-900).
- United States v. O’Brien (900-907).
- Texas v. Johnson (907-917).
- Time, Place, and Manner Regulations (917-918).
- Renton v. Playtime Theaters (918-924). Incitement (924).
- Clear and Present Danger (927-931 note 3).
- Brandenburg v. Ohio (935-937).
- Note on Central Hudson (979-980).