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Former-Attorney General Holder spoke at Georgetown about his return to private practice at Covington & Burling. Tony Mauro reports that a “big bank” told Covington that they would have to drop the firm if Holder was hired. The firm didn’t care, and hired Holder anyway.

He also revealed that Covington may have lost a client because the firm hired him back.

“Big banks are not beating down my door” for him to represent them, Holder said. “One big bank went to Covington and said, ‘If you hire this guy, that is going to put at risk the relationship between this firm and this bank.’ ”

Holder went on to say that the firm’s chairman, Timothy Hester, to his credit, said, “I guess we’re not going to have a relationship anymore, because he’s coming back to Covington.”

Compare this with how King & Spalding treated Paul Clement when he was retained to represent the House of Representatives in United States v. Windsor.

Instead of standing by Clement, who at the time was already one of the top Supreme Court advocates, and who had already retained a client, the firm withdrew from the matter. Clement promptly left the firm, writing that he resigned “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters . . . When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.” Clement then began his illustrious service at Bancroft.

Dahlia Lithwick wrote at the time:

Human Rights Campaign, the gay rights advocacy group that had been agitating against Clement’s defense of the law, is happy to claim responsibility for pressuring the firm to abandon its representation. The group indicated that while it did not pressure other clients to leave the firm, it did “contact King and Spalding clients to let them know that the group viewed the firm’s defense of DOMA as unacceptable.” Fred Sainz, a spokesman for the Human Rights Campaign, explained: “We are an advocacy firm that is dedicated to improving the lives of gays and lesbians. It is incumbent on us to launch a full-throated educational campaign so firms know that these kinds of engagements will reflect on the way your clients and law school recruits think of your firm.”

Tony Mauro reported:

Pressure from within King & Spalding — as well as from some of its clients — were said to be factors in Clement’s exit.

One firm dropped a major bank as a client, rather than refuse to hire the former Attorney General, who had not engaged in any attorney-client relationships yet. Another firm dropped a lawyer–the former Solicitor General–after he had already engaged in an attorney-client relationship. One firm was willing to lose a client to hire an attorney. Another firm would rather withdraw from a matter, and let an attorney go, to avoid alienating clients. Go figure.

In the spot, Hillary Clinton goes the full William Henry Harrison, and takes the oath without an overcoat. Let’s hope this time the Chief gets the oath right!

Last March, the Supreme Court decided Department of Transportation v. Association of American Railroads. The case raised all sorts of constitutional challenges to how Amtrak can set “metrics and standards” that affect its competitors. Writing for eight Justices, Justice Kennedy found that Amtrak was a governmental entity, and remanded to the D.C. Circuit whether the “metrics and standards” violate the separation of powers and the appointments clause. Justice Alito issued a vigorous opinion raising several other constitutional questions, including whether there is an appointments clause violation, the non-delegation doctrine, and other admin-law abuses.  Justice Thomas’s concurring opinion went the full Hamburger, and would have voted to reconsider the development of administration law since the Pope annulled Magna Carta.

On remand from the Supreme Court, a D.C. Circuit panel of Judges Brown, Sentelle, and Williams ruled against Amtrak–in an absolutely fascinating opinion. The Court finds not only a violation of the appointments clause–following Justice Alito’s lead–but also finds a due process violation under the precedent of Carter v. Carter Coal. Judge Brown’s opinion–which is almost certainly going to be subject to an en banc petition–is worthy of a careful study.

Here is the introduction of her opinion:

For the freight operators who challenged PRIIA, however, that decision left three questions unanswered. Conceding Amtrak’s governmental status, the operators— represented by the Association of American Railroads—ask: Does it violate due process for an entity to make law when, economically speaking, it has skin in the game? Does it violate the Appointments Clause for Congress to vest appointment power of a principal officer in the Surface Transportation Board? And is a government corporation whose board is only partially comprised of members appointed by the President constitutionally eligible to exercise regulatory power? We decline to reach the latter question, but we side with the freight operators on the former two. We conclude PRIIA violates the Fifth Amendment’s Due Process Clause by authorizing an economically self-interested actor to regulate its competitors1 and violates the Appointments Clause for delegating regulatory power to an improperly appointed arbitrator.

Judge Brown’s opinion begins with a tribute to Magna Carta, and its influence on our Due Process Clause:

No clause in our nation’s Constitution has as ancient a pedigree as the guarantee that “[n]o person . . . shall be deprived of life, liberty, or property without due process of law.” U.S. CONST. amend. V. Its lineage reaches back to 1215 A.D.’s Magna Carta, which ensured that “[n]o freeman shall be . . . disseised of his . . . liberties, or . . . otherwise destroyed . . . but by lawful judgment of his peers, or by the law of the land.” Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). …

Curbing the misuse of public power was the aim of the Magna Carta, and the Supreme Court has consistently concluded the delegation of coercive power to private parties can raise similar due process concerns.

To resolve this case, Judge Brown turns back to a pre-1937 precedent, Carter v. Carter Coal.

The abstract legal question at the heart of this case is whether it violates due process for Congress to give a self- interested entity rulemaking authority over its competitors. The Supreme Court has confronted the question only once. See Carter v. Carter Coal Co., 298 U.S 238 (1936).

In case you were wondering, the due-process component of Carter v. Carter Coal was never overturned by the Supreme Court. As we learned in NFIB v. Sebelius, Bailey v. Drexel Furniture and other pre-switch-in-time cases–no matter what the professoriate may say– are still on the books. (I actually researched Carter v. Carter Coal for the proposition of shareholder derivative standing, so was familiar of its ongoing validity).

In a sentence that must make the blood boil of all post-New Dealers, Judge Brown writes:

We conclude, as did the Supreme Court in 1936, that the due process of law is violated when a self-interested entity is “intrusted with the power to regulate the business . . . of a competitor.” Carter Coal, 298 U.S. at 311.

During oral arguments, Justice Breyer charged counsel for respondents with going “back to Lochner.”

JUSTICE BREYER: Going back to Carter v. Carter Coal.

MR. GANNON: Yes.

JUSTICE BREYER: We could go back to Lochner.

Brown reads Carter v. Carter Coal as standing for the proposition that Congress cannot delegate power to self-interested firms that use that power to nakedly promote their self-interest.

The power to self-interestedly regulate the business of a competitor is, according to Carter Coal, anathema to “the very nature of things,” or rather, to the very nature of governmental function. Delegating legislative authority to official bodies is inoffensive because we presume those bodies are disinterested, that their loyalties lie with the public good, not their private gain. But here, the majority producers “may be and often are adverse to the interests of others in the same business.” Id. That naked self-interest compromised their neutrality and worked “an intolerable and unconstitutional interference with personal liberty and private property.” Id. Accordingly, the Court invalidated the Act as “so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment.”

Note that this is not a reversal of the normal rational-basis standard for substantive due process cases, but rather a species of the non-delegation doctrine as applied through the due process clause. But you can be sure that is how the government will characterize it.

The court takes a deep dive into the Framer’s views of rationally-self interested government officials, who would use the power of the state to aggrandize their own authority.

In fact, our Constitution’s ingenious system of checks and balances assumes government officials will act self-interestedly. “Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good,” the very first installment of the Federalist Papers opined. The Federalist No. 1, at 33 (C. Rossiter ed., 1961) (Hamilton). “But it is a thing more ardently to be wished than seriously to be expected.” Id. And as Alexander Hamilton observed elsewhere: “We may preach till we are tired of the theme, the necessity of disinterestedness in republics, without making a single proselyte.” Alexander Hamilton, The Continentalist No. IV, in 3 The Papers of Alexander Hamilton 99, 103 (Harold C. Syrett ed., 1962). Self-interested lawmaking was not some shocking aberration; it was an unwelcomed expectation, one our Constitution endeavored to channel and check. See The Federalist No. 51, at 321–22 (Madison) (C. Rossiter ed., 1961) (“Ambition must be made to counteract ambition.”).

Ambition must be made to counteract ambition. I couldn’t have said it better than myself.

With this framework, Judge Brown finds that Amtrak is self-interested:

 Amtrak’s self-interest is readily apparent when viewed, by contrast, alongside more traditional governmental entities that are decidedly not self-interested. The government of the United States is not a business that aims to increase its bottom line to achieve maximum profitability. Unlike for-profit corporations, government strives—at least in theory—for an equilibrium of revenues and expenditures, where the revenue obtained is no more and no less than the operating costs of the services provided. Amtrak’s charter stands in stark contrast. Its economic self-interest as it concerns other market participants is undeniable.

Under Carter Coal, such a delegation cannot stand:

Armed with coercive regulatory power, Amtrak wields a weapon of considerable advantage in its competitive battle for scarce track. And while the Constitution may grudgingly accept the reality of self-interestedness, it does not endorse it as an unmitigated good.

Congress delegated its legislative power to an entity that it designed to be the opposite of “presumptively disinterested.” Carter Coal, 298 U.S. at 311. Like coal competitors, whose “diversity of view[s]” concerning the challenges of the industry “[arose] from their conflicting and even antagonistic interests,” id., the antagonistic interests of freight operators and Amtrak transform the development of new performance metrics and standards into an unfair game of zero sums.

Judge Brown, joined by Sentelle, previously issued a concurring opinion in Hettinga v. United States that cast serious doubt on the Court’s post-1937 jurisprudence.

The court also finds a violation of the appointments clause, which I will try to address in a later post.

As the foregoing analysis suggests, among the Framers’ chief concerns at the constitutional convention were questions of who should be permitted to exercise the awesome and coercive power of the government. Tyrannous abuse of that power precipitated revolution against Great Britain. Overly restrictive access to it crippled our young nation under the Articles of Confederation. The novel equipoise the Constitution struck was to vest the legislative, executive, and judicial powers in independent branches of government and then empower each to check the others.

One last note. In the event that this case goes en banc, the math is funny because there were two senior judges (Sentelle and Williams) on the panels. The two senior judges don’t get to vote for the case to go en banc, but they do get to sit on the en banc court. If it goes en banc, there would be six judges appointed by Republican Presidents (Brown, Sentelle, Williams, plus Henderson, Griffith, and Kavanaugh). With Garland recused, there would be six judges appointed by Democratic presidents (Rogers, Tatel, Srinivasan, Millett, Pillard, and Wilkins).

As Sean Marotta pointed out on twitter, per D.C. Circuit Rule 35(d), a 6-6 en banc vote affirms “the decision under review.”

If the en banc court divides evenly, a new judgment affirming the decision under review will be issued.

But this case was on direct remand from the Supreme Court. The panel decision today addressed issues that were not addressed by the District Court, and that were decidedly left open by the Supreme Court’s decision. I think this would have the effect of “affirming” the judgment for the government, without endorsing any of the reasons why they win. This lineup could ensure that the issue makes a repeat trip to SCOTUS.

After a mass shooting, the response is fairly predictable (even cyclical). Those who favor gun control advocate for stricter gun control  measures. Those who oppose gun control advocate for keeping guns out the hands out of people with mental health problems. However, in light of the nature of mass shooters, neither approach is designed to eliminate these high-profile, but extremely rare, mass killings. (It is worth stressing that attempting to reduce the number of single-person gun homicides differs wildly from reducing suicides or mass shootings, where four or more people are killed in a single incident).

The New York Times–in a piece that does not even mention gun control–discusses how difficult it is to predict the psychological profile of a mass killer.

These lone killers usually don’t fit into an existing category of mental illness, and there’s usually little evidence that early treatment would have helped . . . .

In fact, the sort of young, troubled males who seem to psychiatrists most likely to open fire in a school — identified because they have made credible threats — often don’t fit any diagnosis, experts say. They might have elements of paranoia, deep resentment or narcissism that are noticeable but don’t add up to a specific disorder, according to strict criteria. And there’s no good evidence that mental health treatment would have made a meaningful difference.

It is really easy to use 20/20 hindsight goggles, but making these diagnoses in advance is tougher than the media would let on.

The college student who killed six people before shooting himself in Isla Vista, Calif., in May 2014 saw multiple therapists; they disagreed whether he had emotional problems or high-functioning autism. TheSandy Hook shooter, who killed 26 people in an elementary school in Newtown, Conn. in 2012, had seen numerous psychiatrists and psychologists for years before his mass murder, including therapists at Yale’s renowned Child Study Center. After details of the young man’s childhood and home life emerged, some experts saw evidence of earlypsychosis or obsessive compulsive tendencies. But the only official diagnosis Adam Lanza, the shooter, had received was Asperger’s syndrome, a mild form of autism that by itself does not dispose people to violent acts.

It is simply not the case that these sick individuals–even with proper screening–can be identified in advance for heightened gun control with any degree of accuracy.

Intervening early to address the resentments and fantasies of this group — an approach called threat assessment — is thought to reduce the risk that the boys will act out. But spree killings are rare enough that it has been difficult to know how well such preventive measures work.

The consequence of these findings is that most gun-control laws premised on “mental health” conditions–as a means to halt mass shootings–will primarily generate false positives. Such a regime assumes people with depression, or other similar condition, are dangerous, so the state denies them the right to acquire an arm–even though their condition is unlikely to drive them to commit such horrific crimes.

I’ve written before how doctors in New York have explained that the state’s new mental-health registry may actually be counterproductive because it chills patients from seeking treatment, out of a fear of losing a constitutional right. This is compelled by New York’s imposition of liability on doctors who fail to report patients who go on to do bad things.This creates a perverse incentive to further increase the number of false negatives.

Back in January, when the President announced his long-awaited executive action on guns, the general consensus was that the steps he took were underwhelming. Not so. As I explained in National Review, President Obama was taking the long game on gun control. The key action he took focused on promoting research into so-called “smart guns.”

Beyond expanding the scope of prohibited gun owners, the president’s executive action also has the potential to restrict the types of guns people can buy. One of his executive orders directs the federal government to “promote the use and acquisition of new [gun] technology.” These so-called “smart guns” require a fingerprint scanner or a radio-frequency identification tag to be near the gun, before it will fire. During his press conference, the president joked, “If we can set it up so you can’t unlock your phone unless you’ve got the right fingerprint, why can’t we do the same thing for our guns?”

Let me digress for a moment on the smartphone-fingerprint example. On the iPhone, there is a feature that allows you to take a picture without having to use a fingerprint, or code to unlock the phone.All you have to do is swipe up with the camera icon, and it goes straight to the camera app. Why do you think Steve Jobs and company inserted that feature? Because if you enter the wrong code, or if your finger is sweaty, the phone doesn’t unlock right away. When you have to take a selfie at *just* the right moment, and seconds count, requiring the user to unlock the phone takes too much time.

If time is of the essence to take a selfie, then time is really of the essence when using a firearm for self-defense. Even if a smart gun is able to discern the owner’s fingerprints, or the owner’s grip, it still introduces a potential for error. With self-defense, every millisecond counts.

The usual response to this is that the risk of malfunction is outweighed by the potential of eliminating accidental shootings. Politico explains:

It wouldn’t prevent most mass shootings, gun crimes or suicides — currently the biggest driver of gun deaths. However, they could cut down on the roughly 500 deaths each year from accidental shootings, especially by kids. Advocates also point to findings that most youth suicides are committed with a parents’ weapon, and instances where officers’ own guns are stolen in a scuffle and used to shoot them cause about 1 in 10 police deaths.

I address the magnitude of accidental shootings, in comparison to other deaths, in The Shooting Cycle.

A related heuristic focuses on how people weigh unfamiliar events. This heuristic is more intuitive: the fear of the unknown is greatest. More precisely, people often overweigh the risk of unfamiliar events. Consider the related topic of accidental shootings of young children (primarily where a child uses the firearm to kill him or herself). Though these events are horrible and avoidable tragedies, like mass shootings, they are also uncommon. Professor Dan Kahan’s observations, which are not limited to children, show that there are on average fewer than 1,000 accidental gun homicides per year.60 In comparison, there are roughly 3,500 drowning deaths per year.61

When looking specifically at the causes of death of children, the ratios are roughly similar. In 2010, children ages one to fourteen were more than three times as likely to die by unintentional drowning than by becoming the victims of a homicide by firearm.62 We stress, as does Professor Gary Kleck, that “[t]he point is not that guns are safe because they cause accidental death less often than” more familiar causes, such as drownings, but to provide a “meaningful point of reference.” 63

…

In contrast, when people make choices from familiar experiences, so called “decisions from experience,” they underweigh the probability of rare events.66 In other words, people will underweigh the risk of something they are familiar with—for example, death by drowning in a pool. After all, most people have been in a pool, seen a lifeguard, and are aware of the possibility of children drowning. But, they will overweigh the risk of something they only learn about from descriptions—such as media reports about death by firearm violence. These are rare tragedies that (thankfully) impact very few people personally.

Anyway, back to the smart guns. The problem with these high-tech gadgets is that many states have enacted laws that would criminalize the sale of non-smart guns once smart guns become commercially viable. As I noted in National Review in January:

This is not a laughing matter. In 2002, New Jersey enacted a law that said when “personalized handguns are available,” only smart guns could be sold in the Garden State. To date there simply hasn’t been a market for these weapons. However, as NPR reported, if federal agencies purchase these smart guns in large quantities, it would increase their availability nationwide and trigger the New Jersey law. Other states could enact similar laws to the Garden State’s and lead to a massive prohibition on all arms that are not smart.

And that is precisely the goal of encouraging law enforcement agencies to research and acquire these weapons–provide manufacturers with enough incentives to create them, thus triggering the smart-gun laws. But there is a wrinkle here. Police officers don’t want the guns for the same reason law-abiding gun owners don’t want them–they are not 100% reliable.

“Police officers in general, federal officers in particular, shouldn’t be asked to be the guinea pigs in evaluating a firearm that nobody’s even seen yet,” said James Pasco, executive director of the Fraternal Order of Police. “We have some very, very serious questions.”

Pasco said he’s already been vocal about his concerns in private conversations with administration officials and he plans to keep up the drumbeat even as he waits for an official announcement. …

Pasco compared the push for smart guns to the decision to limit local departments’ access to surplus military equipment.

“They sit down among themselves and decide what is best for law enforcement, but from a political standpoint, and then tell officers they’re doing it for their benefit,” Pasco said.

Of the 330,000 officers in his union, Pasco said, “I have never heard a single member say what we need are guns that only we can fire,” noting that there might be moments in close combat when an officer would need to use a partner’s weapon or even the suspect’s.

These same concerns apply equally to law-abiding gun owners who want a reliable firearm that can fire under less-than-ideal circumstances in short order.

There was an additional announcement buried at the bottom of the Politico piece:

 

Obama also ordered the Social Security Administration to start writing regulations that could bar some beneficiaries from buying a gun if they’ve been deemed mentally incapacitated. It could face a legal challenge, depending on the final wording, and advocates who work closely with the White House anticipate those details could come out on Friday, too.

This development is perhaps even more significant than the smart-guns initiative, because it can have the effect of disarming without due process millions of Americans on social security.

 

Update: NPR has a piece about why police want nothing to do with a smart gun:

ROSE: But almost right away, Zilkha discovered that the customers he imagined were not as enthusiastic as he was. Let’s start with police. Stephen Albanese is a retired New York City police officer.

For 20 years, it was his job to make sure the department’s guns worked like they were supposed to. Albanese says he and other officers weren’t sure they could trust smart guns to fire every time.

STEPHEN ALBANESE: I’ve had cops tell me that their worst nightmare is getting involved in a situation, pulling out that gun, pulling the trigger and hearing it go click.

The same principle applies to law-abiding citizens. Deciding to use lethal force for self-defense is a decision must be made in an instant. Hesitating too long because the gun won’t fire would prevent a person from defending himself.