Month: December 2016

Only One Professor at OregonLaw Willing to Defend the First Amendment

I’ve written several times about a recent incident where the University of Oregon  punished Nancy Shurtz, a law professor who wore blackface at a private party. Her intent–to raise awareness about the lack of black doctors–was benign, if not misguided. In her only statement, Shurtz said the punishment amounted to “supremely public retaliation.” Now, for the first time, we see a public defense from one of her colleagues, Ofer Raban, who teaches Constitutional Law at UO. (We met and chatted briefly during my visit there in November).

In the Oregonian, Raban writes that the administration is concealing its own role in exacerbating this conflict, and may be acting in retaliation for Shurtz’s complaints about the dean.

First, Raban points out the obvious omission from the report–there was no malice or bad intent. It was a well-intentioned, albeit misguided effort, to raise questions about racial equality.

This is a deeply flawed report, and the university has made a legal and moral mistake in adopting it.  Most astonishingly, the report fails to address the issue that makes this case so legally fraught: namely, that the costume was worn to advocate for racial equality. While the report concedes that important fact, its legal analysis fails to take it into account. For all we know, the analysis would have been the same if the professor had donned the costume at a Ku Klux Klan rally. Moreover, the report not only concludes that a costume intended to advocate for racial equality constitutes racial discrimination, but also makes no attempt to justify this counterintuitive conclusion. Whatever one thinks of that question, the failure to address it is preposterous.

Second, Raban points out that the report doesn’t even mention the Oregon Constitution’s free speech provision, which provides more protections than the First Amendment to the U.S. Constitution.

As for the freedom of speech, the report recognizes that the professor’s expression regarded a matter of “public concern,” which the First Amendment guards with particular rigor. But it then concludes that the university’s interest in preventing disruption to its educational operations outweighs the professor’s rights of free speech and academic freedom.

In another bizarre omission, the report fails to mention or analyze the Oregon Constitution’s free speech provision, which Oregon courts ordinarily address even before the First Amendment since it provides greater free speech protections.

Raban alludes to the fact that the report was not so well-intentioned:

University leaders suspended the professor and commissioned the report from a Portland law firm, which worked under the “direction and guidance” of university lawyers.

Third, Raban gets to the crux of the matter: the administration played a critical role in fanning the flames on campus.

Why were university administrators so keen to adopt this flawed report? Perhaps because the administration itself was responsible for much of the resulting educational disruption, including student outrage, damage to the law school’s reputation and a toxic law school atmosphere.

After all, when the Halloween event first became known, administrators repeatedly failed to inform students of the actual intent behind the costume (of which they were fully aware), or of the professor’s record as a defender of minority rights. And when these facts surfaced, officials doubled down by claiming that her intent did not matter, a position now echoed in the report.

Fourth, Raban alludes to the “retaliation” Shurtz alluded to in her statement:

Why was the administration’s response so conducive to inflaming rather than calming emotions? Admittedly, some misguided administrators may actually have believed the professor’s intent in donning the costume simply didn’t matter.

But we should also note that the professor in question was one of seven law school professors who had complained to university officials about the managerial performance of the law school dean. Isn’t it often the case that the settling of personal scores underlie ideological purification campaigns?

His conclusion is worth repeating over and over again.

Whatever the reason for administrators’ responses, let’s not forget what’s at stake in this sordid affair. According to the university, a professor is guilty of racial discrimination and harassment for donning a costume that sought to advocate for racial equality. And that act of political expression is not protected by the rights to free speech nor by academic freedom. This is a sad day for the freedom of speech and expression at the University of Oregon.

This editorial takes supreme courage. This is why tenure protections exist–not to allow professors to shirk on teaching and writing after 5 years. Kudos to Raban. Shame on his colleagues who stay quiet.

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Presidential Maladministration: Insulation of Public Land through the Antiquities Act of 1906

With January 20 drawing closer, we will continue to see exercises of presidential insulation–executive actions taken by the Obama Administration to make it harder for the Trump administration to undo his policies. At this point, we are past the point of no return for notice-and-comment rulemaking, or even the minimum 30-day effective date for publication in the Federal Register. Now, President Obama is limited to proclamations. On December 28, he made two such proclamations–establishing as national monuments Bears Ears in Utah, and Gold Butte in Nevada.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by the authority vested in me by section 320301 of title 54, United States Code, hereby proclaim the objects identified above that are situated upon lands and interests in lands owned or controlled by the Federal Government to be the Gold Butte National Monument (monument) and, for the purpose of protecting those objects, reserve as part thereof all lands and interests in lands owned or controlled by the Federal Government within the boundaries described on the accompanying map, which is attached to and forms a part of this proclamation. These reserved Federal lands and interests in lands encompass approximately 296,937 acres. The boundaries described on the accompanying map are confined to the smallest area compatible with the proper care and management of the objects to be protected.

All Federal lands and interests in lands within the boundaries of the monument are hereby appropriated and withdrawn from all forms of entry, location, selection, sale, or other disposition under the public land laws, from location, entry,and patent under the mining laws, and from disposition under all laws relating to mineral and geothermal leasing.

And, in case you’re interested, no vehicles are allowed in the park.

Except for emergency or authorized administrative purposes, motorized vehicle use in the monument shall be permitted only on roads designated as open to such use as of the date of this proclamation, unless the Secretary decides to reroute roads for public safety purposes or to enhance protection of the objects identified above. Non-motorized mechanized vehicle use shall be permitted only on roads and trails, consistent with the care and management of the objects identified above.

This executive action did not come out of the blue. In 2013 and 2015, Senator Harry Reid introduced a bill to convert the Gold Butte into a national conservation area act. Those bills never made it out of committee, as Republicans blocked it. Reid lamented:

In 2013 and 2015, he proposed legislation to protect Gold Butte as a National Conservation Area. But the bills did not come to fruition.

On Thursday, Reid made it clear he blamed the Republican Party for the efforts’ failures.

“They have done everything they can to destroy our ability to work on public lands,” he said.

Who needs Congress when you have a President with a pen and phone. In August, Reid said he was “confident” that President Obama would act unilaterally before “the first of the year.” With three days to spare, Obama gave Reid his parting gift. This is yet another example of maladministration where President Obama discovered in the interstices of a century-old statute the power to do precisely what Congress declined to do.

The Antiquities Act of 1906 allows both the President and Congress to create “national monuments.” Section 2 provides:

That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected

The statute vests the President with discretion, though he is required to only preserve “the smallest area compatible with proper care and management of the objects to be protected.” This is a fairly rare case where Congress delegates its powers under the Property Clause  of Article IV. As a threshold matter, Prof. Donald Kochan (Chapman) suggests that this likely violates the non-delegation doctrine, as it lacks any intelligible principle, though enough presidents have acquiesced that it probably is beyond dispute.

There is a strong argument that Congress lacks the authority to delegate its power as broadly as some construe the Act.  The U.S. Constitution’s Property Clause commits to Congress the “power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  When the Antiquities Act is broadly construed, it lacks any discernible, intelligible principle that would constrain the Executive branch’s exercise of monument designation power.  Congress then abdicates its responsibility to manage federal lands.  That should make the broad interpretation unconstitutional, but courts to date have not taken such a stance in the few cases that have challenged monument designations.  Furthermore, each new Congress has largely acquiesced in the generous interpretation.

This delegation two questions for the incoming administration; (1) can President Trump simply modify the reservation, arguing that the area selected by President Obama was too large; and (2) can President Trump revoke the proclamation altogether.

In a 2000 report, the Congressional Research Service addressed these questions.

First, it concluded that the President can modify a monument proclamation.

Although few monuments have ever been abolished by Congress (as opposed to being folded into another conservation designation), and no monument has ever been terminated by a President,6 the question has arisen as to whether a President lawfully could modify a previously designated monument. At first glance, it would appear that this question should be answered in the affirmative since Presidents certainly have modified or revoked executive orders, and at times executive orders and proclamations have been used interchangeably to carry out land actions.7

The report cites a 1938 opinion from the Attorney General:

An attorney general’s opinion concluded that a President could validly modify a monument because the Antiquities Act directs that a monument “in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” 39. Op. Atty. Gen. 185 (1938)

The second question, whether the President can simply cancel the proclamation altogether, is far more complicated.

But some see the proclaiming of a national monument as a special category of action that may not simply be undone.

The same 1938 AG Opinion concluded that the proclamations cannot be revoked:

However, the Opinion also concluded that a President could not eliminate or terminate a monument established by previous Presidential action. The Opinion noted that there was no separate statutory authority for the President to revoke or terminate a monument, and therefore any authority that existed for this purpose must be implied by the other powers given the President in the Antiquities Act. The Opinion then reasoned that because the President had no inherent authority over lands, the President was acting only with authority delegated to him by Congress; a monument reservation was therefore equivalent to an act of Congress itself; and the President was without power to revoke or rescind a monument reservation.

The CRS traces the development of related laws since the Roosevelt administration, though notes the Antiquities Act of 1906 has not been touched. Here is its conclusion:

We have found no cases deciding the issue of the authority of a President to revoke a national monument. While in [Federal Land Policy and Management Act of 1976] FLPMA Congress expressly limited the authority of the Secretary of the Interior to revoke monument withdrawals and reservations, that language arguably does not affect the President’s authority under the 1906 Act, which FLPMA neither amended nor repealed. No President has ever revoked a previously established monument. That a President can modify a previous Presidentially-created monument seems clear. However, there is no language in the 1906 Act that expressly authorizes revocation; there is no instance of past practice in that regard, and there is an attorney general’s opinion concluding that the President lacks that authority.

This interpretation would allow the Trump Administration to scale back the size of the reservation. No doubt conservation groups would challenge this, but the statute vests the President with virtually unfettered delegation to determine the “smallest area compatible.” How small? Smaller than Marco’s hands?

At bottom, we have an exercise of presidential insulation–11th hour executive action taken by a lame duck president, preserving land Congress expressly refused to preserve, in a manner that his successor (likely) cannot undo. Unless the President finds a way to act, it is unlikely the Utah or Attorney General will prevail.

However, in the WSJ Todd Gaziano and John Yoo argue that the President can unravel the land grab:

The original purpose of the Antiquities Act was to protect archaeological sites and historic landmarks that “in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.” After studying the president’s legal authority, we conclude that he can rescind monument designations—despite the cursory but contrary view of Attorney General Homer Cummings in 1938. The history of presidential abuse led Congress in 1950 and 1980 to limit the act’s use in Wyoming and Alaska, respectively. While Congress could limit it further, the law’s text and original purposes strongly support a president’s ability to unilaterally correct his predecessors’ abuses.

In other words, none of Mr. Obama’s monument designations or drilling bans is permanent. The grant of power to a president implies the power to rescind it. In Myers v. United States (1926), the Supreme Court ruled that the president’s power to appoint officials, with the advice and consent of the Senate, includes the power to unilaterally remove them. In revoking an official’s commission that was issued after Senate confirmation, the president is negating a specific and official Senate act. Similarly, presidents have the constitutional authority to terminate a treaty, even though they need Senate advice and consent to make it.

Another prominent example of this principle is the executive’s power to issue regulations pursuant to statutory authority. When Congress grants discretionary authority to issue regulations, the courts have correctly held that it also confers the authority to substantially amend or repeal them. The rescission power need not be expressed in every statute; it is implied.

The hubris that has marked this administration knows no end. Declaring that its policies will last forever won’t make it so. But it should stiffen the spine of those who wish to see those policies reversed sooner rather than later.
As CRS noted in a 2016 report, to date, “no court challenges have succeeded in undoing a presidential designation.” If this insulation is to be undone, the decision lies with the President.

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Out with the Old, in with the New

Out: Take Care Clause. In: Emoluments Clause

Out: Prosecutorial Discretion. In: Separation of Powers.

Out: Informal Guidance. In: Petitions for Rulemaking.

Out: Thomas is dangerous about AuerIn: Thomas has a point about Auer.

Out: “Political Agreements” are not Treaties. In: Treaties Must Be Submitted for Ratification.

Out: Spending-clause analysis in NFIB is dangerous to Medicaid. In: Spending-clause analysis in NFIB essential for sanctuary cities.

Out: Endorsing Justice Stevens’s Amendment to overturn PrintzIn: State officials cannot be commandeered by federal immigration officials.

Out: Retire already Justice Ginsburg! In: Please Justice Kennedy, don’t retire.

Out: Texas suing Obama. In: California suing Trump.

Out: Government shutdowns are bad. In: Government shutdowns are essential.

Out: We need 9. In: Not that 9.

 

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George Conway for Solicitor General?

CNN and Bloomberg have reported that George T. Conway III (Kelly Anne’s husband) is on the shortlist for Solicitor General. Conway may be less familiar to close followers of the Court than other plausible names, as he is not a regular litigant before the Supreme Court. He argued one case, Morrison v. National Australia Bank (2010), which he won 8-0 (Sotomayor recused). That is one more case than Elena Kagan ever argued when confirmed as Solicitor General.

While at Yale Law School, Conway authored a note in the Yale Law Journal titled The Consolidation of Multistate Litigation in State Courts, (96 Yale L.J. 1099 (1987). The piece argues that Multi-District Litigation Panels (MDLs) should be able to remove cases from, and transfer cases to state court. Here is the introduction:

In recent years, multistate litigation1 has grown spectacularly in both cost and complexity. In particular, the expense of mass tort litigation, which commonly involves dozens of closely related lawsuits brought by citizens of many states, has reached staggering levels.2 The cost of litigating these claims often exceeds the sums that are ultimately paid to plaintiffs.3 Inefficiencies and costs associated with such multistate, multiparty litigation have inspired proposals for legislative and judicial reforms ranging from suggested changes in the substantive law4 to calls for more extensive use of joinder or consolidation devices.5
*1100 One product of reform that has proven particularly successful is the Judicial Panel on Multidistrict Litigation. Empowered by 28 U.S.C. § 1407 to transfer related civil actions filed in federal courts to a single district for consolidated proceedings,6 the Judicial Panel has used its authority both to conserve federal judicial resources and to reduce the danger of unfairly inconsistent adjudication in related multistate, multiparty cases. The ability of the Judicial Panel to foster efficiency and fairness in multistate, multiparty litigation remains limited, however, because the Panel currently lacks the power to remove cases from, and to transfer cases to, state courts. To remove this limitation, this Note proposes that Congress confer upon the Panel discretionary authority to direct litigation to and from state courts. The Note suggests factors that the Panel should consider before ordering consolidation in state courts, and argues that a necessary factor should be a likelihood that, after transfer, the substantive law of the transferee jurisdiction will govern much of the litigation. The Note concludes that a grant to the Panel of power over litigation in state courts would be constitutionally permissible.

The piece was cited in 1996 Judge Kozinski dissent that concerned MDL panels.

While the federal courts have treated Pfizer as dispositive, commentators have been far more skeptical. With remarkable unanimity, they have questioned whether, and under what circumstances, district judges to whom cases are entrusted for purposes of discovery may hold on to them for trial. . . . George T. Conway III, Note, The Consolidation of Multistate Litigation in State Courts, 96 Yale L.J. 1099, 1102–03 (1987) ( “[C]onsolidation for trial almost certainly defies both the letter of section 1407 and the intent of its drafters.” (footnotes omitted));

For what it’s worth, Justice Souter wrote an opinion unanimously reversing the Ninth Circuit.

Conway’s note was cited in 2016 in the most recent issues of Causes of Action 2d, Newberg on Class Actions, the Guide to Multistate Litigation, and the Annotated Manual for Complex Litigation, as well as a dozens of law review articles. After law school, he clerked for Judge Ralph K. Winter, who was appointed to the Second Circuit in 1981.

Following his clerkship, he joined Wachtell in 1988, made partner in 1994, and has been working there since.

Perhaps most attention will focus on his role in the Paula Jones case.

The Daily Beast had this report.

Things were moving fast for Jones, and it wasn’t always clear just who was in control of her case. In 1997, Jones was being represented by Gilbert Davis and Joseph Cammarata—two moderate Republicans who suggested that Jones accept a settlement offer of $700,000. For her part, Jones later said, “Oh, I instructed them many times to try and get the case settled…”
But there were other lawyers steering the ship from behind the scenes, a group of young conservatives who referred to themselves as Elves (as in the muscle and magic that runs Santa’s workshop). These elves included George Conway—husband to Kellyanne Conway, Trump’s third and current campaign manager who has defended Trump’s trotting out of Jones and the other women, telling Anderson Cooper, “I believe that voters should know who Hillary Clinton is.” George Conway wrote the Supreme Court brief that allowed Jones’s case to continue and leaked to Matt Drudge details of a sealed affidavit that would later be used to discredit Jones—one in which she described a “distinguishing characteristic” of the president’s penis, specifically a bend, a condition that doctors who examined Clinton disputed.

Mother Jones also explained his role in more detail:

Jones’ Supreme Court victory was due in part to the work of George Conway III, a Republican lawyer who is married to Trump’s campaign manager, Kellyanne Conway. When Jones’ case first became public in May 1994, Conway was a 30-something lawyer at the law firm Wachtell, Lipton, Rosen & Katz and a member of the Federalist Society, a conservative legal group. Conway penned an op-ed in the Los Angeles Times arguing that Clinton was relying on dubious legal arguments. “In a case involving his private conduct, a President should be treated like any private citizen,” he wrote. “The rule of law requires no more—and no less.”

The op-ed brought Conway to the attention of Jones’ lawyers, Gilbert Davis and Joseph Cammarata. (Cammarata now represents seven women accusing Bill Cosby of sexual assault and other charges.) Subsequently, Conway spent several years quietly working pro-bono with Jones’ legal team and a group of other conservative lawyers. This crew ultimately exposed Clinton’s affair with Monica Lewinsky and sparked impeachment proceedings against the president.

In 1996, the 8th Circuit Court of Appeals ruled that the case should move forward, saying that it could find no “case in which any public official ever has been granted any immunity from suit for his unofficial acts.” Clinton appealed the decision, asking the Supreme Court to delay the trial until after he left office. Conway wrote the Supreme Court brief for Jones. In a unanimous decision written by liberal Justice John Paul Stevens, the court agreed with Conway, and the Jones case proceeded. Clinton was subsequently forced to submit to hours of depositions in the case—a first for a sitting president. Jones ultimately settled with Clinton for $850,000.

As an aside, he may be the first Solicitor General short-lister ever portrayed on SNL. Flash back to this hilarious sketch where on her day off, Kelly Anne gets a kiss from her husband, serves her family waffles, and takes a bath.

Jake Tapper was not impressed.

Update: George and Kelly Anne used to contribute to an NRO Blog called “Reconcilable Differences: Two Conways, Two Takes.”

In hindsight, this post from January 2007 is almost too surreal to believe.

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Students Taking Offense

Yesterday I blogged about whether a an argument becomes more persuasive if the speaker discusses incidents that would personally offend him or her. I noted, mostly in passing, that “I almost never get offended,” even where perhaps some may expect I would. It’s true. (I still laugh out loud at Borat, for example). Though, I admit I am somewhat atypical, especially for a millennial. I fully recognize that many students (who each semester get younger and younger than me) have a different threshold. As a result, they may find offensive incidents I don’t.

There’s really nothing professors can do to dial back when students get offensive. Indeed, many professors heighten that sensitivity, but that is a story for another post. Here, I’d like to talk about what a university should do when a student complains about a professor’s conduct that he or she finds offensive. For this, I encourage you to read in its entirety Eugene Volokh’s latest post, titled “Silencing professor speech to prevent students from being offended — or from fearing discrimination by the professors.” This excerpt, I think, capture the essence of Eugene’s argument:

People often support disciplining and even firing professors who say things that are perceived as racist on the grounds that 1) those professors can’t be trusted to evaluate minority students fairly, 2) students will be afraid that they won’t be judged fairly, or 3) students will more broadly lose confidence in the professors (or just couldn’t stand to be in the room with them) or even in the institution, and won’t learn as effectively. …. I appreciate the force of these arguments, and indeed, if all you care about is maximum teaching effectiveness and reliability, you might take such a view. But, if accepted, these arguments really will be the end of freedom of expression — both casual and more formally academic — on university professors’ part, because they reach far beyond black makeup in Halloween costumes.

If students are given a heckler’s veto, whereby they can get a professor fired because they find something he did–even off campus, with a pedagogical purpose–to be offensive, academic freedom is toast. Volokh adds:

There would be no principle to which dissenting voices could appeal for protection. Once a professor’s public speech — or even speech in a relatively private setting, so long as some students are there or some students hear about it — is seen as sufficiently offensive to enough students, that would be seen as justification for suspending or firing the professor.

The correct response from a responsible university to this sort of moral outrage should be “Tough.” Eugene explains:

Professors are entitled to express their views, including controversial ones; indeed, they’re supposed to express such views, however controversial, as part of their scholarship and their public commentary. And that applies to condemnation of religions, economic classes and political belief systems, as well as debate on less heated topics. “[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” If you disagree with the professor, express that disagreement, the universities would say; but we won’t shut the professor up in order to prevent you from feeling offended or alienated. …  Yet, again, I take it that the university’s response to such complaints about professors who made anti-Trump-voter, anti-Catholicism, anti-capitalist or anti-American statements at parties or blog posts would still be some version of “tough.” “You need to be confident that our professors will judge you fairly,” the university would presumably say (however credibly). “And we can’t just shut up our professors on all these subjects; they’re supposed to express themselves on controversial topics. The university is all about learning from people who sharply disagree with you, even when those disagreements go to important parts of your identity.”

But at the University of Oregon, the faculty and administration indulged–indeed abetted–this heckler’s veto.

When confronted by annoyed students, the administration must make clear that the purpose of a university is to “foster[] debate and inquiry”–and that entails being offended at times. Eugene explains:

I think that, on balance, this university approach, with its traditional support for freedom of expression, is the better one, if universities are to be places for fostering debate and inquiry. But if professors like Shurtz are barred from the classroom for their speech, then all this speech will be threatened. To the extent that any would be protected, it would be protected only when those who are in power — some mix of university administrators, state legislators, faculty senates, student majorities, student activists and wealthy donors — happen to agree with the potentially offensive speech.

Alas, far too many universities act as if their primary purpose is to promote “inclusion,” social justice, and other progressive values. I’ll flashback to a post I wrote in September about a debate I participated in at SMU on intellectual diversity.

Sixth, a student asked [during Q&A] why would schools hire professors out of the mainstream, in a way that could injure their “brand.” I was absolutely gobsmacked by her ignorance about the importance of the university to foster dissent and ideas outside the mainstream. But I really shouldn’t blame the student. I doubt this tenet of academic freedom was ever articulated to her. Rather, she was probably taught at every juncture to avoid saying or doing anything that would upset others–that includes writing and thinking about unorthodox ideas. The framing of her question, which danced around the issue, was even more ignorant. She suggested that hiring conservative professors would hurt the school’s “brand.” To the contrary, many donors are withholding their checks because of the hostile environment brewing on college campuses. But that doesn’t resolve the issue–universities should promote the pursuit of ideas, in spite of their unpopularity. After reflecting on the question, a few hours later (always too late) I came up with this response: Would you have hired a scholar in 1972 who wrote that the 14th Amendment protected a right of same-sex marriage. The year before, the Supreme Court dismissed Baker v. Nelson for “want of a substantial federal question.” At a time when homosexuality was considered a mental illness, it certainly could have hurt a school’s “brand” to hire such a scholar, writing material entirely out of the “mainstream.” Four decades later, that position is now the law of the land. I’ll be sure to use this example the next time I debate this topic.

If students are never told “Tough,” and that their school exists to challenge, and often offend them, how are they supposed to know any better? Usually during the first week of ConLaw, I issue something of a blanket trigger warning: “I will offend you at some point during this semester.” We discuss slavery, abortion, eugenics, internment, and a host of other difficult topics. “If you don’t wish to be offended,” I tell them, “switch to a different section.” So far no one has taken me up on the offer.

Consider a recent tussle at Drexel University. A professor tweeted that all he wanted for Christmas was a “white genocide.” He was making some sort of reference to white nationalists, who believe that interracial marriage results in the destruction of the white race. Whatever. Not the kind of argument I would make, but he had some sort of scholarly spark behind the snark. Unsurprisingly, lots of people were offended. At first, the University announced that it wanted to meet with the professor about his tweet.

Drexel became aware today of Associate Professor George Ciccariello-Maher’s inflammatory tweet, which was posted on his personal Twitter account on Dec. 24, 2016. While the University recognizes the right of its faculty to freely express their thoughts and opinions in public debate, Professor Ciccariello-Maher’s comments are utterly reprehensible, deeply disturbing, and do not in any way reflect the values of the University.

The University is taking this situation very seriously. We contacted Ciccariello-Maher today to arrange a meeting to discuss this matter in detail. 

Whether or not any punishment would be issued, a university statement singling out the faculty member for a meeting has the inescapable consequence of stigmatizing the speech, and chilling academic freedom.

After some reflection, the University issued a revised statement that (more or less) strikes the right tone:

The social media comments over winter break by George Ciccariello-Maher, Associate Professor of Politics and Global Studies at Drexel, have precipitated a heated public dialogue. The issue has caught the attention of national media and put Drexel in the spotlight. As University leaders, we understand that people have very different perspectives and opinions on such matters; it is our duty to ensure that all members of our community feel truly welcome and can participate in an inclusive learning environment. Instances such as this one both test and strengthen Drexel’s fundamental dedication to the principles of academic freedom and freedom of expression. …

The University strongly encourages the use of speech—not threats or violence—to counter speech with which one disagrees. In the coming months, we look forward to a constructive exchange of ideas and opinions on the subject of academic freedom and freedom of speech.

The answer to offensive speech is more speech. Far more productive than firing or punishing the tweeter is for students and teachers to discuss these topics (white genocide?) and decide whether there is any merit to the tweet, or if it was a dumb joke. That approach would “foster debate and inquiry.” Not censor speech.

Drexel, which is not a state institution, shows an awareness of the First Amendment that is utterly lacking at the University of Oregon, which is a public institution, bound by the First Amendment.

 

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Oregon Court of Appeals: Motorized Vehicle Is Not a Vehicle

One of the classic chestnuts of law school is how to interpret a sign that says “No vehicles in the park.”(See my previous posts). Once in a while, this question comes before the courts (New York). Yesterday, the Oregon Court of Appeals rejected the government’s supposition that a motorized vehicle is a “vehicle,” and reversed a DUI conviction.

Defendant appeals a judgment of conviction for driv- ing under the influence of intoxicants (DUII), ORS 813.010, assigning error to the trial court’s denial of his motion for a judgment of acquittal.1 Defendant was convicted of DUII for operating his motorized wheelchair in a crosswalk on a city street while intoxicated. He argues that a person crossing a street in a crosswalk in a motorized wheelchair is a pedestrian and not the operator of a vehicle for purposes of the DUII stat- utes. The state responds that the meaning of “vehicle” under ORS 813.010 is broad and applies to a motorized wheelchair, including when the wheelchair is being used to cross a street in a crosswalk and, hence, that defendant was subject to the DUII statutes when he drove his wheelchair on the street. Because we conclude that a person operating a motorized wheelchair in a crosswalk is a pedestrian and not the driver of a vehicle for purposes of the DUII statutes, we reverse.

Here were the arguments adduced at trial:

After the close of the state’s case in a jury trial, defendant moved for a judgment of acquittal, arguing, among other things, that, because he was using his wheelchair in a crosswalk, he was a pedestrian under ORS 801.385 and not subject to the DUII statutes that apply to drivers of motor vehicles.3 According to defendant, had the legislature intended motorized wheelchairs operating in crosswalks to be treated as vehicles, it would have said that explicitly, as it did in enacting ORS 814.500, which treats motorized wheel- chairs as bicycles when they are operated on bicycle lanes or paths.4 The state responded that motorized wheelchairs are vehicles under ORS 801.590,5 and, hence, that defendant was the driver of a vehicle under the DUII statutes when he drove his wheelchair in the crosswalk. The trial court concluded that defendant was subject to the DUII statutes when he was crossing the street in his motorized wheelchair and, accordingly, denied his motion for a judgment of acquittal.

Here is the crux of the court’s analysis:

However, we can discern no legislative intention to treat operators of motor- ized wheelchairs as pedestrians for most purposes in the vehicle code—for example, protecting them from operators of motor vehicles while crossing a street in a crosswalk, ORS 811.028—while also treating them as operators of motor vehicles for purposes of the DUII statutes. ORS 801.385 defines “pedestrian” for purposes of the vehicle code as “any person *** confined in a wheelchair.” (Emphasis added.) Had the legislature intended to treat users of motorized and human-powered wheelchairs differently for purposes of the DUII statutes—the former as vehicle drivers and the latter as pedestrians—it would have made that distinction in treatment explicit. Cf. ORS 814.500 (operators of motorized wheelchairs subject to rights and duties of bicycle rid- ers when motorized wheelchairs are used on bicycle lanes or paths).

The court goes on to analyze the legislative history, which supports their conclusion. (Shocker, right?).

Here is the conclusion:

In the end, we are persuaded that the dichotomy that pervades the vehicle code between pedestrians and operators of vehicles decisively evinces a legislative intention not to subject people in motorized wheelchairs to the DUII statutes when they are traveling as pedestrians in crosswalks. We conclude that a person using a motorized wheelchair under circumstances in which the person is a pedestrian for purposes of the vehicle code is not subject to the DUII statutes.

Here, the evidence viewed in the light most favor- able to the state establishes that defendant left a sidewalk in his motorized wheelchair and travelled in a crosswalk. Accordingly, defendant was a pedestrian and not a driver of a vehicle for purposes of the DUII statutes. Hence, the trial court erred in denying defendant’s motion for a judgment of acquittal.

But what if the defendant rode in the motorized wheelchair in a park?

H/T Howard Bashman

 

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Federal Law Permits the AG To Restore Gun Rights. But Congress Has Refused To Fund This Role Since 1993

18 U.S.C. s. 925 provides that the Attorney General has discretion to relieve individuals from any disability imposed by federal firearm prohibitions.

(c) A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

However, since 1993, Congress has refused to fund the Bureau of Alcohol, Tobacco, and Firearms from providing such relief. The Congressional Research Service offered this analysis (pp. 21-22):

For FY1993 and every year thereafter, Congress included a proviso in the ATF S&E appropriations language that prevents that agency from using appropriations to consider applications for disabilities relief (i.e., reinstatement of an applicant’s right to gun ownership) from individuals who are otherwise ineligible to be transferred a firearm.61 In the 102nd Congress, House report language (H.R. 5488; H.Rept. 102-618) included the following justification: “the Committee believes that the $3.75 million and the 40 man-years annually spent investigating and acting upon these applications for relief would be better utilized by ATF in fighting violent crime.” Senate and Conference report language were silent on this issue. The language of this proviso is as follows:

Provided further, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).

For FY2015, this proviso was included in the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235). For FY2016, the Senate Committee on Appropriations included identical language in its reported CJS appropriations bill (H.R. 2578, as amended). The House-passed version of H.R. 2578, however, reflected a floor amendment (H.Amdt. 302) that would have required ATF to process disability relief applications for individuals. The Consolidated Appropriations Act, 2016 (P.L. 114-113), however, did not include this amended provision. Instead, it included and maintained the appropriations limitation described above. Both the Senate and House FY2017 CJS Appropriations bills (S. 2837 and H.R. 5393) included identical provisions.

Judge Gibson (for whom I clerked) flagged this issue in a recent decision from the Western District of Pennsylvania.

Federal law does contain a provision, codified at 18 U.S.C. § 925(c), equivalent to Pennsylvania’s relief statute. Under § 925(c), a person prohibited from owning a firearm under federal law may apply to the Attorney General for relief. The ATF has promulgated a rule, 27 C.F.R. § 478.114, setting forth the procedures for such an application for relief. In practice, however, both 18 U.S.C. § 925(c) and 27 C.F.R. § 478.114 are meaningless; Congress has denied any funding “to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).” Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 128 Stat. 2130, 2187 (2015). Thus, 18 U.S.C. § 925(c) does not provide an actual avenue of relief.

Franklin v. Lynch, No. 3:16-CV-36, 2016 WL 6879265 (W.D. Pa. Nov. 21, 2016).

Why on earth would Congress expressly vest the AG with this discretion–which amounts to the restoration of a constitutional right–and then refuse to fund him from exercising it?

Even more perverse, because the AG lacks this discretion, the second part of 925(c)–providing for judicial review– becomes meaningless:

Any person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter, who makes application for relief from the disabilities incurred under this chapter, shall not be barred by such disability from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Attorney General grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor.

The Supreme Court held, unanimously, in United States v. Bean that because the AG cannot take actions, district courts lack the authority to restore gun rights.

The absence of an actual denial by ATF of a felon’s petition precludes judicial review under § 925(c). The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain preconditions are met, and an applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investigate or act upon the applications. Section 925(c)’s text and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction.

This should change.

 

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Personally Persuasive

When I write about legal issues, I try very hard not to make it personal.  That is, I want my arguments to stand by themselves, regardless of who I am, where I was born, who my ancestors are, where I pray, how much money I earn, who I love, etc. None of that should matter. Alas, for many people it does. I’ve heard more times than I can count that because of my “privilege,” I lack the “agency” to write about a host of hot-button social issues. Whether or not the “privilege” argument has any merit on its own, if taken seriously, the result is silence: I can’t speak about a topic unless I have the agency to do so. Part of a broader culture of political correctness, these censorious policies are inimical to academic freedom, and more broadly, the freedom of speech.

It is against this backdrop that I came across a series of tweets from Josh Block this morning. Block criticized a post by Eugene Volokh about the University of Oregon’s punishment of a professor who wore blackface at a private party. (I’ve written about this case at some length, and Eugene quotes me in his post). Block argued that arguments about free speech are less persuasive when the speaker only uses examples he does not “personally find offensive.” Alluding to some Jewish writer, Block suggests that a hypothetical should be about a “prof invites Jewish students to party and dresses as Shylock or Jew w/horns.” (Volokh is Jewish). This would show “evenhandedness.” Block goes on to state that “1A defenders need to show they defend speech they [personally] find offensive, not just speech they think others wrongly find offensive.” Whether or not Volokh “defends other speech,” because “other people may justifiably be offended undercuts [his] argument.” It was his last tweet that raised my hackles: “When ppl who are white, male, & not LGBT make 1A args, you can’t persuade if you only discuss what offends minorities, women, & LGBT ppl.”

I replied:

Perhaps illustrating Trevor’s Axiom, I received a torrent of tweets from people other than Block, arguing that I misstated Block’s position, and that he spoke about “persuasive” arguments, rather than “acceptable” arguments. Allow me to explain.

Block’s argument, by necessity, requires assessing what the speaker finds, or likely finds, personally offensive. If the speaker is Jewish, then there is the presumption that he will find offensive a professors wearing horns. If the speaker is Catholic, then there is the presumption that he will find offensive a professor dunking a crucifix in urine. If the speaker is Irish, then there is the presumption that he will find offensive a professor dressing up like the Notre Dame mascot. You get my drift. Unless a speaker offers such “evenhandedness” his argument is less “persuasive.” Or as I phrased it in my tweet, the argument is not as acceptable, because some other people–who are not privileged–find the argument undercut.

What a person personally finds offensive is irrelevant to the persuasiveness of an argument. I have no idea what Eugene finds offensive. I almost never get offended because of the internet. It’s dulled me to virtually everything. Why presume that I would find any of these scenarios offensive? I think the professor who does these things acts like an idiot, but so what.

If someone wants to find my arguments unpersuasive, let them do it based on the logic and reasoning in the work–not based on their perception of who I am, or what I find offensive.

This is a philosophical disagreement that I don’t think we will resolve, by tweet, or blog post.

 

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Texas AG Opposes Texas State Bar’s Quota System, Urges It To Become “Private Entity”

The Texas Star Bar (I am not a member) imposes a straight-up quota for members of its board, explicitly reserving the seat for a “minority director,” defined as “female, African-American, Hispanic-American, Native American, or Asian-American.” White males need not apply. The Project on Fair Representation (Ed Blum’s organization) brought suit on behalf of an Austin attorney, who is a white male, alleging that the quota was unconstitutional. In most cases, the Attorney General of Texas would defend suits brought against the state institution. But not here.

General Paxton filed an amicus brief in support of the plaintiffs’ motion for a preliminary injunction. The brief argues that the quota is “patently unconstitutional.”

The State Bar has chosen the wrong tool to achieve the benefits of diversity. Instead of trust- ing its membership to vote for the most qualified candidates to collectively represent their interests, it has chosen to enforce strict racial and sex-based quotas for its leadership. But the State Bar is a government agency, and governmental quotas on race and sex are anathema to equal protection under the law. Quotas make bare the indignity of a naked racial and sex-based classification, because they define an individual’s sole worth based on an immutable trait. In the eyes of the State Bar, you either are or are not a minority member, and that single quality defines whether you can or cannot serve in a specific government role. These quotas are utterly unjustified and patently unconstitutional.

Even more suggests, the brief suggests that if the Bar wants to discriminate, it should become a “private entity.” Doing so would alleviate the antitrust issues raised in NC State Board of Dental Examiners v. FTC, as well as the proposed Model Rule 8.4(g).

If the State Bar wishes to continue to utilize race and sex-based quotas in selecting their leadership—unwise though that policy may be—it could push to become a private, voluntary bar association, like the American Bar Association. As a private entity, the State Bar would not be subject to the Equal Protection Clause scrutiny that dooms their quota system in this case. In- deed, transitioning from a governmental body to a private bar association would solve many of the serious problems that potentially exist with the State Bar.1

See, e.g., N. Carolina State Bd. of Dental Exam’rs v. F.T.C., 135 S. Ct. 1101, 1110-15 (2015) (“The Court holds today that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal’s active supervision requirement in order to invoke state-action antitrust immunity.”); Tex. Att’y Gen. Op. No. KP-0123 (2016) (explaining that, if the State Bar adopted a rule of professional conduct recently proposed by the American Bar Association, it would be violating attorneys’ rights to free speech, free association, and free exercise of religion).

This is not an idle point. As Mark Pulliam notes in a recent WSJ Op-Ed, the legislation authorizing the State Bar will sunset in September 2017.

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Breaking: Divided Panel of D.C. Circuit Orders Response in House of Representatives v. Burwell

Last night I blogged about the proposed intervenors’ emergency motion to suspend the abeyance to consider their motion to intervene. The House of Representatives (unsurprisingly) opposed. The Justice Department took no position. Now they’ll need to.

This morning at 9:49 AM ET, a divided panel of the D.C. Circuit (Tatel and Srinivasan) ordered both parties to file a response by January 6. The proposed intervenors can file a reply by January 11. Presumably, any resolution will come before the inauguration.  Judge Henderson dissented, and would have denied the emergency motion.

This order puts the Justice Department in an odd posture. As a matter of institutional policy, the Department in comparable cases tends to oppose motions to intervene–they can handle their own business. For example, in U.S. v. Texas, the DOJ opposed a motion to intervene by would-be beneficiaries of DAPA. The 5th Circuit overruled Judge Hanen, and held they could intervene. They were also permitted argument time at the Supreme Court. (It was not helpful to the government’s case). But here, the political appointees in the Justice Department may have a vested stake in the survival of Obamacare, so would be inclined to let Andy Pincus represent their interests going forward. Till January 6.

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Presidential Insulation in the White House Garden

Yesterday I blogged about a species of presidential maladministration I referred to as presidential insulation, which occurs an outgoing president takes executive action to prevent the incoming administration from reversing his polices. After writing the post, I thought of another example of presidential insulation–though it isn’t really by the President.

In October, Politico reported that the First Lady was taking steps to prevent a future administration from getting rid of her White House garden.:

First lady Michelle Obama is making sure that whoever inhabits the White House next doesn’t rip out her iconic vegetable garden — at least not without a big fuss.

On Wednesday afternoon, Obama unveiled a much bigger version of the garden, which uses cement, stone and steel to make it a more permanent fixture on the South Lawn. The updates are seen not just as preserving Obama’s garden — recognized globally as a symbol of local food — but also as a way to dissuade, say, a President Donald Trump from scrapping it the way Ronald Reagan tore out Jimmy Carter’s solar panels after he moved into the White House.

“I take great pride in knowing that this little garden will live on as a symbol of the hopes and dreams we all hold of growing a healthier nation for our children,” Obama said in an emotional speech Wednesday afternoon as she dedicated the garden before an audience of advocates, food industry leaders and others who have helped with Let’s Move!, her signature childhood obesity campaign.

“I am hopeful that future first families will cherish this garden like we have,” she added.

With all the uncertainty, however, it’s clear that the latest iteration of the first lady’s vegetable garden is built to last. Sawdust pathways have been widened and replaced with blue stone. The garden features a large new, stone-paved seating area and a prominent archway, cemented into the lawn.

Underneath, a large paving stone carries an inscription: “WHITE HOUSE KITCHEN GARDEN, established in 2009 by First Lady Michelle Obama with the hope of growing a healthier nation for our children.” …

The White House noted that the new structures incorporate both wood, chosen for “durability,” and steel — “combined to make the elements stronger bonded together than when they stand alone.” The wood includes pine and walnut harvested from the estates of founding fathers Thomas Jefferson, James Madison, James Monroe and the birthplace of Martin Luther King Jr.

The first lady literally cemented her signature garden to prevent the next administration from uprooting it. Of course, all cement can be removed.

During a background briefing on the garden changes, White House officials were peppered with questions about whether the preservation actually prevents a future president from removing the legacy plot.

The short answer is no. “It is up to the next administration how they would like to manage the garden,” a White House official said, declining to answer the question directly. “The National Park Service will continue to maintain it.”

None of these changes, however, preclude the next administration from nixing the garden. It is the president’s home and he or she can do whatever the first family wishes, in consultation with the Secret Service, the National Park Service and the U.S. Commission of Fine Arts — and plenty of changes have been made over the years.

But historians like Pliska are quick to note that even in an intensely polarized political era, it’s actually exceedingly rare for a president to make a political statement with a change to the White House grounds. The removal of Carter’s solar panels stands out as a glaring example — and even then, they were removed quietly.

But this form of insulation makes it tougher to get rid of:

Neither presidential candidate, nor their spouses, have offered any indication of their intentions about the garden.

“If Trump were elected president, he’d probably dig up Michelle Obama’s vegetable garden in favor of a putting green,” joked a recent piece in the Miami New Times.

“I think people would be really upset,” said Marta McDowell, a landscape historian who recently wrote a book on White House gardens. She called Obama’s preservation plan “brilliant,” adding, “If it were taken out, it would truly just be a political statement.”

Before the election, President Obama apparently took that threat to heart, telling a talk radio show that he’s worried Trump would dig up Michelle’s garden.

Indeed, after the election, the New York Post reported that Michelle pushed her husband to issue an executive order to preserve her garden.

But she’s not stopping there — wielding the power she has over the president to ensure the Kitchen Garden is a permanent part of the White House.

“She is pressing him to pass an executive order to maintain the garden after they leave the White House,” a source told The Post.

Alas, even if true, what executive action giveth, it can taketh away. NY Mag opined:

Of course, even if the President did issue such an order, Trump could overturn it. So the only thing standing in the way of the garden’s destruction is some steel and the inevitable PR hit that would follow. Another thing working against the garden is that Trump eats like a 15-year-old. Unless someone quickly figures out a way to grow onion rings and burnt steaks, the president-elect is unlikely to feel much allegiance.

Ann Coulter offered the President-elect this advice:

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Three Panels at AALS

I will be speaking at three panels at the AALS annual meeting in San Francisco next week.

First, on 1/5 at 8:30 a.m., I am speaking on the “Hot Topic” program about federal power over immigration. When we submitted this proposal, we anticipated a different set of questions would be in play two weeks before the inauguration. Now, the panel is even more timely. Here is the lineup:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Jennifer M. Chacon, University of California, Irvine School of Law
Speaker: Jill E. Family, Widener University Commonwealth Law School
Speaker: Anil Kalhan, Drexel University Thomas R. Kline School of Law
Moderator and Speaker: Ilya Somin, Antonin Scalia Law School at George Mason University

Second, fifteen minutes later at 10:30 a.m. (I’ll have to hustle across the street!) I am presenting Presidential Maladministration at the Federalist Society Annual Faculty Conference’s Works-in-Progress panel. There will be a stellar group of scholars presenting here:

Josh Blackman, South Texas College of Law Houston: “Presidential Maladministration”
Enrique Guerra-Pujol, University of Central Florida: “Probabilistic Interpretation”
Jennifer Mascott, Georgetown University Law Center: “Who are Officers of the United States?”
Jonathan Mitchell, Stanford Law School: “The Writ of Erasure Fallacy in American Jurisprudence”
William Nancarrow, Curry College: ‘What Was All the Fuss About?: The Real Reason for Popular Anger at
the Courts during the “Lochner Era”‘
Ilya Somin, George Mason University Antonin Scalia Law School: “The Original Scope of State and Federal Power Over Immigration”
Lee J. Strang, University of Toledo College of Law: “Aretaic Originalism: Originalism’s Promise and Limits”
Moderator: Caleb E. Nelson, University of Virginia School of Law

Third, on January 6 at 8:30 a.m., I am speaking on another “Hot Topic” panel, titled “New Frontiers in Reproductive Rights and Justice.” My remarks will focus mostly on the aftermath of Zubik, and how the Trump administration will handle the contraception mandate. Here is the lineup:

Speaker: Josh Blackman, South Texas College of Law Houston
Speaker: Khiara M. Bridges, Boston University School of Law
Speaker: Melissa E. Murray, University of California, Berkeley School of Law
Moderator: Kate Shaw, Benjamin N. Cardozo School of Law
Speaker: Neil S. Siegel, Duke University School of Law
Speaker: Reva B. Siegel, Yale Law School

If you are in San Francisco, I hope to see you!

 

 

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Proposed Intervenors in House of Representatives v. Burwell file Emergency Motion to Suspend Abeyance

Last week, I blogged about a last-ditch effort by two ACA-enrollees to intervene in the House v. Burwell litigation. Both the House of Representatives and the Obama administration filed motions on December 23, stating that the D.C. Circuit’s order to hold in abeyance precluded resolution of the motion to intervene.

On Tuesday, the proposed intervenors–represented by Mayer Brown–filed an emergency motion to suspend abeyance for limited purpose of adjudicating the motion to intervene. Here is the crux of their position:

To avoid irreparable prejudice to the interests of Intervenor- Movants, this Court should partially suspend the abeyance and set a brief- ing schedule on the motion to intervene that would permit the Court to rule on that motion prior to the Presidential transition. Because the Executive Branch and the House in their respective December 23 filings have already expressed their views on responding to the motion, and relatively little time remains before joint action by the House and the new Admin- istration to dismiss or otherwise settle this appeal could well moot the Motion to Intervene, Intervenor-Movants urge the Court to set the briefing schedule now, without awaiting further submissions from those parties.

If Intervenor-Movants’ motion is not resolved by this Court prior to January 20, there is a significant risk that the new Administration and the House could act jointly to dismiss the appeal*—which would allow the District Court’s injunction to take effect, triggering the significant harm to Intervenor-Movants described in the motion to intervene.

The movants call the House’s request for additional time “disingenuous.”

The House’s suggestion that resolution of the motion await the new Administration is thus quite disingenuous: the prospect of collusion between the House and the new Administration to permit the District Court’s injunction to take effect is precisely why Intervenor-Movants have asked to represent their own interests before this Court. Delaying action on the motion until after the change in Administrations would permit the very harm that the mo- tion seeks to prevent. If Intervenor-Movants are permitted to join this case, then the House and the new Administration will not be able to settle this case in a manner that employs the Judicial Power to undermine the interests of Intervenor-Movants, and the millions of other Americans who rely upon the Affordable Care Act’s healthcare exchanges for subsidized health insurance—by allowing the District Court’s order to take effect without review by this Court.

On one day’s notice, the House of Representatives filed an opposition to the motion to suspend abeyance. (The Justice Department announced that it did “not plan to file a substantive response to the intervention motion at this time unless requested to do so by the Court.”). The House makes five primary arguments.

First, the movants waited far too long to move to intervene, and even longer to file this emergency motion. The elected was settled nearly two months ago. The motion, they argue, should be denied on this basis alone.

Second, echoing a point I made in my previous post, the CSR payments are made to insurers, not the insured.

In other words, the unsubstantiated and utterly speculative outcome that Movants claim to fear – namely, that settlement negotiations between the parties will lead to reinstatement of the injunction with no alternative in place – would not actually harm Movants, because their statutory rights to receive cost-sharing reductions from insurers would remain fully enforceable.

The movants counter that if the payments are halted, their insurers can cancel their policies under an arrangement reached with CMS. The House responds that these concerns are speculative.

In their Intervention Motion, Movants also claim to fear that their 2017 policies could be “terminated” because the Center for Medicare and Medicaid Services (“CMS”) has allegedly agreed to permit insurers to “seek to leave the exchange mid-year should the House of Representatives prevail in this lawsuit.” Intervention Mot. at 13. As shown by the plain language of the agreement they cite (id. at 13 n.6), however, their concern is baseless. The cited agreement merely reflects CMS’s acknowledgement that an insurer “could have cause to terminate” its participation in the CMS Data Services Hub, “subject to applicable state and federal law,” if the “assumption that … CSRs [i.e., Cost-sharing Reductions] will be available to qualifying Enrollees” during 2017 “ceases to be valid.”

Third, the House contends that the movants’ entire argument is based on a “speculative chain of causation” that cannot even be redressed by intervention.

If, as Movants posit, the incoming Administration intended to halt cost-sharing funding to insurers forthwith – a highly improbable claim for which Movants cite no evidence – intervention would do nothing to prevent that, because the new Administration would have ample authority to take that step without regard to the pendency of this case. This appeal provides no vehicle for Movants to attempt to compel the new Administration to make cost- sharing payments to insurers over its objection, because the only claim at issue here is the House’s claim that such payments are precluded, not that they are compelled.

Reiterating a point I made in my previous post, this suit is likely but a prelude to a suit by AHIP.

Indeed, Movants admit that a separate lawsuit would be required if such a claim were to be asserted. See Intervention Mot. at 5 n.4.

Footnote 4 teases out what would happen if the administration interpreted the ACA to preclude the payments of the cost sharing reimbursements:

The President could direct the relevant agencies to interpret Section 1324 not to provide a permanent appropriation for the cost-sharing reimbursement payments. That too would render this case moot, although it might give rise to another lawsuit challenging the new interpretation of Section 1324.

It “might” huh? This intervention is but a mere prelude to a future suit by AHIP, seeking a TRO to prevent the stoppage of the CSR payments.

Fourth, the House asserts that a potential settlement, far from “collusi[ve]” is “highly favored.”

The mere fact that the parties may reach a settlement does not constitute an “emergency” and, therefore, cannot be considered grounds for granting Movants’ motion.

Fifth, even if the Trump Administration reverses the Obama administration’s position, seeking intervention now–before the inauguration–is premature.

Even if Movants are correct that the incoming Administration will shift its legal position, it makes no sense for the parties to respond to the Intervention Motion at this time. Until the new Administration has taken office and determined its position, there is no basis for concluding that it will not adequately represents Movants’ interests, and the current Administration is obviously in no position to address that question. Accordingly, delaying responsive briefing on the Intervention Motion is eminently reasonable and serves to prevent unnecessary and inefficient expenditure of valuable public resources that would result from the premature briefing and judicial consideration of this motion.

This last-ditch litigation is entirely understandable. The insurance companies and Obamacare beneficiaries are panicked that the election will upset the status quo. They will use all tools in their disposal to try to maintain their rents. This emergency motion, however, is not the proper vehicle to accomplish these goals. They should have thought about this suit before the order to hold in abeyance was entered on December 5. The House filed their motion to hold in abeyance on November 21. The proposed intervenors should have sought extraordinary relief at that time, when the government’s response was due. Not an entire month later.

Everyone knew such a motion to hold in abeyance was coming. There was no mystery. At 2:00 AM ET on November 9 (before Clinton even conceded), I wrote:

Third, House of Representatives v. Burwell, which is pending before the D.C. Circuit, may also come off the docket. A Trump Administration will simply decline to make these illegal payments.

One day later at National Review, I wrote how the litigation will likely wind down, and private insurers will have to litigate the cessation of payments.

Fifth, the case of House of Representatives v. Burwell will draw to a premature close. The Obama administration has made payments to insurance companies that Congress never appropriated. Speakers John Boehner and Paul Ryan have pursued litigation to challenge the legality of these payments. Once the Trump administration halts the subsidies, the case will be dismissed. Insurance companies will still be free to bring private causes of action against the government, but the House’s litigation will wind down.

The likely truth is that the intervenors probably didn’t think of this idea quickly enough, so they filed this 11th-hour challenge.

The D.C. Circuit should not reward such truancy. Putting aside all of the merits, this suit fails on the doctrine of laches.

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On Way Out the Door, Obama Administration Denies Constitutional Rights of “Mentally Defective”

Unable to legislate new restrictions on what kind of arms can be sold, the Obama administration has embarked on a long-term effort of adding an untold number of Americans to “no buy” lists—based on the unfounded conjecture that they pose a “danger” to others—and deprive them of a fundamental constitutional right. The Gun Control Act of 1968 and NICS Improvement Amendments Act of 2007 requires that agencies with pertinent records on who is or is not “a mental defective” disclose those records to the attorney general so those people can be excluded from purchasing arms through the National Instant Criminal Background Check System (NICS).

On December 19, 2016, the Social Security Administration (SSA) finalized new regulations that will create a process for transferring the records of those who seek a “representative payee” (legal proxy) under the Social Security disability benefits programs to NICS, so that they may be considered a “mental defective” and thus lose their Second Amendment rights.  The SSA rule is arbitrary—there’s no evidence that someone who needs help with SSA paperwork can’t be trusted with a gun—and inconsistent with the regulatory and statutory scheme, not to mention blatantly unconstitutional. Nor does the rule attempt to make that connection.

In July, for the first time ever, Cato’s Center for Constitutional Studies, with the help of Ilya Shapiro, Gregory Wallace, and me, filed a public comment objecting to the rule on 10 different grounds. No one disputes that the government has an interest in keeping guns out of the hands of those who could harm themselves or others, but depriving a constitutional right requires due process of law. Under existing law, the root requirement of the Fifth Amendment’s Due Process Clause is that an individual receive a hearing before she is deprived of a constitutional right by a federal agency, one where the government must justify its restriction. Here, the process entails an SSA bureaucrat making the determination without the expertise necessary to tell if the applicant is a danger to herself or others and without necessarily having the benefit of medical evidence. Indeed, the criterion evaluated—whether a person is “a mental defective”—is the same unscientific and unspecific standard that the Supreme Court approved in 1927 when legalizing the sterilization of the mentally ill and other eugenic treatments. The term is antiquated and vague. Moreover, it is unconstitutional to condition the receipt of benefits on the sacrifice of rights. The “condition” here could not be more clear: to gain or maintain a representative payee, needy disabled persons must submit to being placed on the NICS list and foregoing their Second Amendment rights. The government is not allowed to foist that Catch-22 onto those who qualify for Social Security disability but need help administering their benefits.

The final rule only pays lip serve to these serious constitutional concerns.

The rule cites Heller’s “mentally ill” dicta without any further analysis. As we reply in our comment, this doesn’t cut it:

The government should not attempt to graft its capacious and vague definition of “mentally defective” onto Heller’s dicta. Doubtless, the Court did not mean to sweep every hypochondriac, arachnophobiac (spiders), coulrophobiac (clowns), or lepidopterophobiac (butterflies) under the federal mental health prohibitor. For example, an agoraphobic person may have a fear of crowded Social Security offices, and request a representative-payee. The person may have complete control over her affairs, and have no impairment of her ability of self-defense. But due to specific conditions, she benefits from having a person appointed to handle disability payments. There is no reason to bar this person from owning a firearm.

What about due process? The disabled can only seek relief after their name is transmitted to DOJ for inclusion in the NICS.

An individual can request relief any time after the adjudication is final but we cannot delay fulfilling our obligations under the NIAA to provide relevant records to the Attorney General while the person decides whether to request relief.

And how long will that relief process take?

We will work in good faith to respond to all requests for relief promptly and within the 365-day period. . . .  f we fail to resolve an application for relief within that period for any reason, including a lack of appropriated funds, we will be deemed to have denied the relief request without cause. In accordance with the NIAA, judicial review of any petition brought under this paragraph (d) shall be de novo.

A year before you can go to federal court to vindicate your rights?! And who bears the burden during the proceedings? The person whose rights were violated:

It is generally appropriate under the law to place the burden of production and proof on the proponent of an order. In this case, that means the person who applies for relief must demonstrate his or her entitlement to relief, and there is no indication in the NIAA or any other provision of law that Congress intended to alter that normal rule.

No, people do not bear the burden to defend their own constitutional rights. But no worries, the rule states, because SSA is not denying anyone their constitutional rights:

While the rule addresses reporting requirements, it is the Federal Gun Control Act, not the Social Security Act, that governs when a person can possess a firearm.

At bottom, here’s the dirty secret: this entire rule is premised on SSA’s interpretation of a never-published DOJ guidance document. We discuss this ruse in our comment:

The NPRM triggers reporting to the NICS based on the finding that a claimant who has been found disabled under one of the listed mental impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.00 et seq., requires a representative payee. Under 42 U.S.C. § 405(j)(1), however, payments to a representative payee are (1) discretionary when the agency “determines that the interest of any individual under this chapter would be served thereby . . . regardless of the legal competency or incompetency of the individual” and (2) required when the agency determines that “such a payment would serve the interest of the individual because the individual also has an alcoholism or drug addiction condition (as determined by the Commissioner) and the individual is incapable of managing such benefits.” Since the proposed rule triggers reporting to the NICS in cases of mental disability other than alcoholism or drug addition, the discretionary standard applies. That standard explicitly disclaims any necessary relationship between appointment of a representative payee and a beneficiary’s mental incompetency.11

To solve this problem, the “guidance” fabricates a link between the the ATF regulation, and the rulemaking. In January 2013—as part of his post-Sandy Hook executive actions— President Obama directed the Justice Department to “issue guidance to agencies regarding the identification and sharing of relevant Federal records and their submission to the NICS.”12 Three years later, this Justice Department “guidance” documents celebrates its regulatory cotillion through footnote 10 of the Notice of Proposed Rulemaking. For the very first time, the public learned that in March 2013, DOJ distributed a document titled “Guidance to Agencies Regarding Submission of Relevant Federal Records to the NICS.” The “guidance” specifically states that a person who “lack[s] the mental capacity to contract or manage his own affairs” includes someone who received an “agency designations of representative or alternate payees for program beneficiaries.” The “guidance” conveniently defines the broader category of being unable to manage affairs, at the narrow, precise level of specificity of SSA’s authority: Designating a representative payee. Without this “guidance,” the NPRM would lack statutory authority. The “guidance” purports to create a connection where there is none. But this administrative sleight of hand will not save the NPRM, because SSA receives no deference in interpreting statutes and regulations that are entrusted to another agency to implement.

Even under Auer, courts owe SSA no deference in interpreting guidance issued by other agencies:

It is certainly true that under Auer v. Robbins, agencies interpreting their own regulations are entitled to deference—even if the “guidance” document is not produced until the course of litigation.13 But here, SSA is not interpreting its own regulations; it isn’t even interpreting another agency’s regulations. The basis of the entire NPRM is DOJ’s 2013 unpublished “guidance.” SSA cannot claim any deference by interpreting another agency’s informal guidance document or regulations. There is no indication that Congress intended SSA to have any role in deciding who would be “mentally defective” for purposes of a gun-control law. The rulemaking is “procedurally defective” ab initio, for it lacks any “reasoned explanation” for how SSA has the authority, expertise, or qualifications to interpret the DOJ regulation, and make determinations that raise serious Second Amendment and due process concerns.14

This rulemaking is nothing more than a “rope-a-dope.” Commenters and litigants will launch a myriad of constitutional challenges against a deficient rule and SSA will deflect, arguing that the correct target is the Justice Department (which is not a party to this rulemaking). But in truth, the government has it backwards: it’s “dope-a-rope.” SSA is entitled to no deference in its interpretation of BAFTE’s 2014 regulation, informed by the DOJ “guidance.”

The publication date of December 19 is no coincidence. The rule goes into effect on January 18, two days before the inauguration. The Trump Administration cannot halt the effective-date of the rule, but it can withdraw the DOJ guidance document. At that point, there is no defense available for the rule.

Additionally, this is a prime candidate for disapproval under the Congressional Review Act. Additionally, the proposed rule notes that several subsidiary issues must be submitted for future rule-making. I suspect those rule-makings will never happen.

 

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More on Scholars’ Letter

Yesterday, I wrote a post critical of scholars’ letters. Law professors should hesitate before signing open letters they had no role in drafting, and for which they lack any special legal expertise. To paraphrase Richard Fallon’s views on “scholars’ briefs,” “many professors compromise their integrity by joining such [letters] too promiscuously.

Today, John McGinnis offers a similar position concerning the letter opposing Senator Session’s nomination as Attorney General:

Of course, these law professors have every right to oppose Jeff Sessions as citizens, but they are clearly here writing as legal scholars, noting their position as law professors at the start of the letter and signing with their institutional affiliations.

What is notable, however, is the lack of any scholarly argument in the letter.  There is no analysis of why Sessions’ positions are wrong as matter of law or policy.  I doubt many of the signers have examined the hearings for his district court nomination to come to independent judgment on his fitness for that office or any other.

Law professors have been writing such letters of mass advice to Congress for some time. They are almost always letters supporting the left-liberal positions, because law professors are overwhelming left liberal. Neal Devins of William and Mary has made a powerful case that these letters are a serious mistake, because they attempt to trade on law professors’ status as scholars to give credibility to unscholarly and sometimes partisan advice.  Professor Devins has noted that many law professors who sign these letters lack scholarly expertise in the subject matter, and this letter is no different in that respect.  But even the letters he critiqued, like that contending that President Clinton’s impeachment was unconstitutional, had least had the patina of an argument. But this letter just takes positions without serious reasoning of the kind scholars provide.

As such, this letter debases the enterprise of scholarship. What we as scholars can provide to politicians is more articulate reasons for political action.  That deepening of deliberation does a service to democratic debate, which at its best is about reason, not raw preferences. Particularly in these days where politics is less and less about policy and more about loyalties to one’s tribe, scholars have a particular obligation to raise politics toward the ideal of reason rather than to lower scholarly discourse toward that of coarse politics.

Professor Devin’s article is also worth quoting from. Here is the introduction:

Academic freedom may prove to be one of the casualties of the Clinton impeachment.1 By signing letters about the constitutional standards governing impeachment, an issue most of them know very little about, many academics placed partisanship and self-interest above all else. The logic of academic freedom, however, cannot be squared with academics who see celebrity and power as more important than the pursuit of truth. Grounded in the belief that academics searching for knowledge in free universities will strengthen a free society, academic freedom insulates the academy from political attack.2 It also gives credibility to the writings, testimony, court filings, talk show appearances, and other activities of academics who seek to influence public policy. At the least, academic freedom conveys the message that scholars who speak out on public issues know something about those issues. When academics join forces to send a purely political message, their reputation as truth-seekers will diminish and, with it, their credibility. While that day has not yet arrived, it is rapidly approaching. Accusations of political correctness run amok and goofiness3 are becoming increasingly mainstream.4 Unless academics *166 can answer these charges, they risk becoming irrelevant. Consequently, when a significant number of law professors and historians hold themselves out as experts when they are not, they mislead, and all academics pay a price. For this very reason, academics can ill afford another nail to be placed in the coffin of the dispassionate academic expert. Rather, they must hold politically motivated professors accountable for abusing academic freedom.

This section in a nut-shell encapsulates my views on scholars’ letters:

Why treat these letters with more deference than, say, a petition from the ACLU or the NRA? The answer, of course, is that academics have a reputation for placing the search for truth ahead of partisanship. Unlike movie stars, interest groups, or the person on the street, the credibility of academics is tied to their purported willingness to speak “[t]ruth to [p]ower.”

Society, acting on this vision, accords academics certain privileges that it accords no one else (except perhaps judges). Society, acting on this vision, accords academics certain privileges that it accords no one else (except perhaps judges).15 Academic freedom, tenure, sabbaticals, and the like encourage academics to think independently and to challenge prevailing norms through their scholarship.16 At the same time, the trust that society has placed in academics, as well as the resources it has provided them, are grounded in certain assumptions about academic conduct. Academics, for example, have an obligation “to speak truthfully about the issue at hand, because they have a detached cast of mind as well as a large stock of relevant and reliable knowledge on the subject at issue.”17 

For this very reason, policy *169 makers and media outlets seek out academics on many of the issues that divide the nation. Academic letter-writing campaigns likewise capitalize on the academic’s reputation for dispassionate expertise. Consider, for example, the anti-impeachment letters. Writing “neither as Democrats nor as Republicans” (but as “professors of law”), these citizen scholars saw the drive to impeach the President as a threat to “our constitutional order.”20 Signed by many of the nation’s most prominent law professors and historians, it is no wonder that these letters were taken seriously by the President’s supporters as well as his foes. Upon closer inspection, however, these letter-writing campaigns are little more than a testament to the willingness of many academics to pawn off fake knowledge.
Read the entire article.

Providing the counter-point to Devins was Cass Sunstein:

In any case, Devins does not discuss what academic freedom is for, to wit, the power to speak controversially about the *195 truth as one sees it, free of risks of political reprisal. I agree with Devins that the principle of academic freedom is violated if those who enjoy it are not acting in good faith or are not pursuing truth (not a doubtful empirical claim about consequences but a sensible claim about principle, which is what appears to me to underlie Devins’s essay). But nothing in this point argues against public statements by professors. …

His first point has to do with the possibly limited expertise of many or some of those who signed the relevant letters. Devins says that “it is doubtful that many had thought seriously about the constitutional standards governing impeachment.”12 He appears to believe that at least by implication, some or many law professors held themselves out as specialists or experts when, in fact, they lacked knowledge about impeachment that would qualify them as such.
For some of the signatories, perhaps this is true. But I think that Devins’s judgment is too harsh. Impeachment is hardly an obscure or invisible issue in constitutional law, and in the wake of the Watergate controversy, many law professors developed genuine, if fairly general, views on the appropriate meaning of the phrase “high crimes or misdemeanors.” Certainly most teachers of constitutional law know something about the governing legal standards; they know enough to know, for example, that smoking marijuana or speeding would not ordinarily count as a “high crime or misdemeanor.” From there they could reason by analogy to the view that, at least as a general rule, a President cannot be impeached unless he has been charged with large-scale abuse of the powers that he has by virtue of being President.

Those law professors who signed the longer letter but who do not teach constitutional law probably believed that they knew enough–from training and from substantive conversations with colleagues–to have a reasonably informed opinion about the threshold question of whether the charges against President Clinton made out an impeachable offense. Law professors who do not teach constitutional law have informed views about many constitutional issues–for example, about whether racial segregation is generally unconstitutional, whether quotas can make for an acceptable affirmative action program, and *196 whether the Constitution protects the right to use contraceptives. Many law professors believe that with respect to the charges against President Clinton, impeachment falls in the same category.13 The signatories likely thought, in good faith, that they knew enough about the constitutional provision to conclude that an impeachable offense had not been made out. It is hard to see why there is anything untoward here. I agree with Devins that people should not sign petitions when they are unable to defend the relevant position publicly; but I would give the signatories the benefit of the doubt on this point.

With respect to the charge of hypocrisy, Sunstein writes that the professors would likely hold the same views for an impeachment trial for a Republican President.

But I do not know how Devins can be confident of this uncharitable judgment, and in any case, the anti-impeachment conclusion would hold if President Reagan, or a future Republican President, were subject to an impeachment inquiry on the basis of similar allegations.19 I very much doubt that the signatories would change their view if the accused President had been Republican. Perhaps Devins disagrees, but he offers little basis for any such disagreement.

LOL. If you believe that, I have some ocean-front property in Idaho to sell you–right next to the new Trump International Hotel, which will violate the emoluments clause.

 

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Presidential Insulation

In Presidential Maladministration (which Larry Solum said was Highly recommended), I discuss four species of White-House interference with the regulatory process: presidential reversals, presidential discovery, presidential nonenforcement, and presidential interference. In the six weeks since the election, I have discerned a fifth species: presidential insulation. That is, when the President personally directs executive action to insulate his policies from future changes, and make it harder for the incoming administration to engage in reversal. Several recent examples illustrate this principle.

First, President Obama’s recently discovered that the 1953 Outer Continental Shelf Lands Act all-along vested him with the power to prohibit drilling in the Arctic. Note that the President did not make this discovery at any point before the election, where there could be political fallout. Instead, this discovery was only made on the way out the door. But more to the point, he took this action in a way to make it tougher for the Trump Administration to undo. The Times reported:

In many cases, Mr. Trump and a Republican Congress in line with the new president’s ambitions will be able to roll back some of Mr. Obama’s most recent environmental regulations. But because of new and legally inventive strategies, Mr. Obama and his staff may well have built firewalls around environmental policies that could hold off his successor — or at least keep him at bay for several years.

Sort of like when the Clinton Administration removed the Ws from the keyboards before President Bush moved into the White House.

Alas, with Congress in Republican control, and a Trump appointee bound for SCOTUS, these firewalls may not stand.

Opponents of Mr. Obama’s environmental agenda said they fully expect Mr. Trump to take actions to legally undo the ban.

“We don’t see how this could be permanent,” said Andrew Radford, a senior policy adviser with the American Petroleum Institute, which lobbies for oil companies.

Mr. Radford noted that after President Bill Clinton had used the same law to withdraw 300 million acres from oil and gas drilling from an area that had already been designated as a marine sanctuary, President George W. Bush reinstated about 50 million acres to fossil fuel leases.

“Similar to how President Bush issued a memo in 2008 to add areas back in, we’re hopeful that the Trump administration will take a look at this to reverse that decision and we look forward to working with them to make that happen,” said Mr. Radford.

Second, the Obama Administration formally dismantled a national registry program that tracks entries into the United States from countries with terrorist activity. The program had more-or-less fall into desuetude during the Obama administration, but after the election, the executive branch took sudden action to make sure President Trump could not employ it. The Times reported:

The move by the White House to formally end the registry is among the actions being taken in the final weeks of the administration that could prevent, or at least slow, what Democrats fear may be a swift rollback of President Obama’s efforts on immigration and climate change.

This effort, however, was done in haste. At the Notice & Comment blog, Shoba Sivaprasad Wadhia writes that the traditional notice-and-comment period was skipped.

The Administrative Procedure Act (APA) normally requires agencies to give notice and open a period for public comment before issuing a rule, but there are also some important exceptions.

In the final rule, DHS invoked the “procedural rule” exception which applies to “rules of agency organization, procedure, or practice.” DHS explains how this final rule is a procedural rule adopted for “agency efficiency purposes,” because the regulations themselves are outdated and have not been used since 2011. DHS furthermore describes how removing these regulations reflects a current “practice and procedure” of the government and will not affect substantive rights or interests of the public.

In the final rule, DHS also invoked a second APA exception known as “good cause.” The “good cause” exception applies when undergoing notice and comment procedures is “impracticable, unnecessary, or contrary to the public interest.” Correctly, DHS finds “good cause” because the removal of the NSEERS regulations will again have no substantive effect on the public as they relate to a program that has not been utilized since 2011 and have been dormant since then.

Because the final rule is procedural, there is no delay in the effective date (such a delay is required only when a rule is substantive). In other words, the rule is effective immediately.

Here, the “good cause” is that President Trump will replace President Obama. For related reading, read up on CRS’s report on the “good cause” exception to notice and comment.

Third, the Obama Administration also rushed through 465 pages of regulations concerning the Affordable Care Act, also waiving the sixty-day review period citing “good cause.” Buried in this tome is a decision to make illegal risk adjustment payments.

Fourth, the Obama administration is planning the countermeasures it will take against Russia for its interference with the election. Knowing that the Trump administration will likely take a different position, the White House is rushing to finalize these measures before January 20, so that they cannot be undone. The Washington Post reports:

Administration officials would also like to make it difficult for President-elect Donald Trump to roll back any action they take.

“Part of the goal here is to make sure that we have as much of the record public or communicated to Congress in a form that would be difficult to simply walk back,” said one senior administration official.

Fifth, the Obama Administration’s recent action concerning Israel represent an attempt to codify the President’s perspective on the Middle East, with full knowledge that the incoming administration takes a different perspective. Whether the United State’s abstention before the U.N. Security Council is consistent its past positions is far beyond my expertise. However, as George Mitchell suggested, the United States could have simply moved to postpone the vote to allow the new administration a clean slate to address this important issue. It didn’t. By abstaining, the administration cemented its position on the world stage, making it tougher for the Trump Administration to undo it.

In response to this insulation, President-elect Trump charged on Twitter that President Obama has failed to keep his promise for a “smooth transition,” and that he will reverse all of these policies after January 20.

During Secretary Kerry’s remarks today, he acknowledged that the incoming administration may see things differently, but the current President wanted to articulate its foreign policy position.

President Obama and I know that the incoming administration has signaled that they may take a different path, and even suggested breaking from the longstanding U.S. policies on settlements, Jerusalem, and the possibility of a two-state solution. That is for them to decide. That’s how we work. But we cannot – in good conscience – do nothing, and say nothing, when we see the hope of peace slipping away.

For what purpose? In the long-run, perhaps they hope that a future President will adopt this platform. The two-state solution in exile, perhaps? But in the short term, the primary effect of this position is to attempt to bind the Trump Administration. This is unlikely to succeed, thought it will create headaches.

And why now? The Times observes:

With only 23 days left as secretary of state, Mr. Kerry, the former presidential candidate who made the search for peace in the Middle East one of the driving missions of his four years as secretary, spoke with clear frustration about Mr. Netanyahu’s continued support of settlements “strategically placed in locations that make two states impossible.” But he spoke knowing that the incoming administration of President-elect Donald J. Trump may well abandon the key principles that the United States has used for decades of Middle East negotiations.

Mr. Kerry wanted to deliver Wednesday’s speech more than two years ago, current and former aides say. But he was blocked from doing so by the White House, which saw little value in further angering Mr. Netanyahu, who has opposed any speech that might limit Israel’s negotiating room or become the basis for a United Nations Security Council resolution to guide the terms of a “final status” deal.

Now, after a remarkable confrontation with Israel after the Security Council’s passage of a resolution condemning Israeli settlements as a flagrant violation of international law, Mr. Kerry appears to have concluded there is nothing left to lose.

Because, once again, the political fallout will not fall to President Obama.

I expect to see a lot more instances of presidential insulation within the next 22 days (who’s counting?).

Update: For another example of Presidential Insulation, see First lady Michelle Obama’s garden.

Update 2: President Obama’s sanctions against Russia were, at least according to Andrea Mitchell, designed to “box in” President Trump:

She added, “They really are taking steps, they think  — if I could read into, or infer from the callers, from those on the call  — they are taking steps that will box in Donald Trump. How easily will it be undone? When asked whether Donald Trump and the new administration, according to their signals do not not agree with this, from what they said so far publicly, unless they see more information once they take office  — Will they let those spies back in the states? Will they reopen those Russian facilities? The briefer says that they think it would be very difficult for the president-elect or for any American president to reopen spy facilities, to let spies back in the country. That American business that has suffered hundreds of millions of dollars of damage from this would certainly not be happy to know that the president of the United States is supporting Russian intelligence. So they are taking steps that are reversible but are clearly not going to be easily reversed at first blush.”

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A Non-Delegation Doctrine for Congress’s Power to “punish its Members for Disorderly Behavior”

Last summer, House Democrats held a “sit-in” to protest the decision not to bring a gun-control bill up for a vote. Because the session had already ended, House leadership turned off the C-SPAN cameras. In response, several Democratic members started to livestream the sit-in from their phones. House Republicans have huddled for some time about how to punish future efforts to livestream from the floor. Politico reports on a proposal that would “empower the sergeant-at-arms to fine lawmakers up to $2,500 for shooting video or taking photos on the chamber floor.” Is this constitutional?

Over the last century, Congress has seen fit to delegate virtually all of its lawmaking powers to regulatory agencies, giving near-carte blanche to the executive branch to decide the content of laws. Since the New Deal, the courts have uniformly upheld these delegations, so long as the law contains a “intelligible principle” (translated as some ill-defined, nebulous guidance).  There is another attribute of the non-delegation doctrine that I hadn’t considered: can the House of Representatives delegate other powers within Article I to congressional employees?

Article I, Section 5 provides that “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

Usually, disciplinary matters are referred to the bipartisan House Ethics Committee. The committee then recommends whether a member should be disciplined, accompanied by a “Letter of Reproval” (which by itself does nothing). If the member objects, he or she can appeal to a full House vote to decide the appropriate remedy.

Under Speaker Ryan’s proposal, there would be no opportunity to appeal a decision of the sergeant-at-arms. Rather that congressional employee would make the final call about whether the fine should be assessed.

Mike Stern, a longtime congressional counsel, suggested that as proposed, the punishment may amount to unlawful delegation of authority to sergeant-at-arms.

“The Constitution gives the House the authority to discipline members; I have never heard of anything where an officer of the House was given that authority,” said Mike Stern, a former lawyer for the nonpartisan House counsel’s office and the Senate Homeland Security Committee’s GOP staff.

Stern, who called the proposed rule a “plausible Constitutional issue to raise,” said Democrats could take the matter to court. “Their strongest argument would be: The House doesn’t have the authority to give these officers the power to punish us; only the power of the House can do that, and [Republicans] have short-circuited our rights by the way they’ve done it.’”

Robert Walker, former chief counsel and staff director to the Senate and House ethics panels, did not think Republicans would run afoul of the Constitution with the new rule. But he nonetheless wasn’t sure it was a good idea because it could open the door to the House delegating other duties to officers.

“Do members really want to start this?” he asked. “Once you start delegating punishment to an officer, it raises a question of precedent and whether it can be expanded, and I think members will want to think carefully before they do this.”

Remarkably, and conveniently, Democrats have suddenly found a delegation of authority they deem too broad!

As Democrats blasted the new rule Tuesday, House Minority Leader Nancy Pelosi (D-Calif.) and lawyers representing the Democratic minority began examining its legality. “We are reviewing this language as it appears to raise constitutional concerns,” Pelosi spokesman Drew Hammill told POLITICO in an email Tuesday.

Some Democrats are itching for a fight over the rule. Rep. Eric Swalwell (D-Calif.), one of the leaders of last summer’s protest, tweeted at Republicans to “bring it on” and dared them to “fine me & @HouseDemocrats all the way into bankruptcy for #gunviolence sit-in, but we will always speak for victims.”

“If they cut the camera feed again, I’m going to turn on my phone again,” Swalwell vowed during a brief interview Tuesday.

Any member fined could file suit against the sergeant-at-arms, claiming that the punishment amounted to an unconstitutional delegation of power. Recall that Powell v. McCormack held that members could not be sued–in light of the Speech or Debate Clause–but legislative employees, such as the sergeant-at-arms can. But Powell involved the “qualifications” clause–that is whether Powell could be seated–not the “punishment” clause.

The Politico piece explains how this could work.

Brand said the sergeant-at-arms doesn’t have as many legal protections as lawmakers and could actually be sued by House members should they feel he unlawfully deducted their pay. Brand said it would be better if Republicans simply used their own authority to punish members with a House vote — and not “pass on their dirty work,” as he put it, to nonpartisan House staff.

“It’s the House that has the power, the self-disciplinary authority, to do this,” Brand said, noting that it’s never been tested in court. “I’m not sure they can delegate the disciplinary power to an individual house officer.”

I asked Stern on Twitter whether this sort of issue has ever been litigated. He wasn’t aware of anything. The closest precedent he could think of was Nixon v. United States, where a committee of Senators heard evidence regarding the impeachment of Chief Judge Nixon. Ultimately, the full Senate voted to remove him. Nixon contended that the committee acted unlawfully because it was not the whole Senate.

Petitioner Walter L. Nixon, Jr., asks this Court to decide whether Senate Rule XI, which allows a committee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate, violates the Impeachment Trial Clause, Art. I, 3, cl. 6. That Clause provides that the “Senate shall have the sole Power to try all Impeachments.”

However, the Court did not address this question, finding the dispute was not justiciable.

Ryan’s proposal could be cured by permitting the full House to vote on any punishment.

Walker also noted that members don’t appear to have a venue to appeal the verdict: “What happens when there is a difficult circumstance and one of the members thinks there ought to be a right to appeal? Maybe you add that to the rule: a right to appeal. Members ought to have procedural rights as well.”

But this change would defeat the ostensible purpose of this proposal, which is to quickly fine members that misbehave, without having to take the accountability of sanctioning a colleague.

Republicans could recraft the proposal to alleviate such concerns, but that might ultimately defeat their initial intent: deterring Democrats from future occupations of the chamber.

One option could be to have the ethics panel serve as an appeals panel. But, as Stern notes, the committee “takes forever” to litigate so “I don’t think it would be as much of a deterrent.” The panel is also evenly split between Democrats and Republicans, potentially allowing the minority to block a punishment.

Republicans could also amend the rule to force the House to vote to approve the sanctions on members. But that, in theory, would allow Democrats to continue the public spectacle Republicans are trying to quash, giving them an even larger platform for their cause.

“Look, I understand the Republicans are trying not to inflame things by coming up with something to put a stop on [this protesting], but there is no way around them exercising their own authority to control breeches of decorum,” Brand said. “That’s the way do it — not by delegating it to some poor officer of the House.”

Here, passing the buck to a congressional officer can save face, but also may violate the Constitution.

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Support the Harlan Institute $16 of 2016 Campaign

By donating $16 before the end of 2016, you can help send the winners of our Virtual Supreme Court competition to Washington, D.C. to celebrate Constitution Day in September 2017.

Since 2010, through our innovative approach to online legal education with FantasySCOTUS, the Harlan Institute has taught thousands of high school students about our Constitution and the Supreme Court. This year, students can compete in the Fifth Annual Virtual Supreme Court. Through our collaboration with ConSource, students will write briefs and participate in oral arguments concerning the Establishment Clause issues in Trinity Lutheran Church v. Pauley.

Teams of two students choose each side of the issue, write appellate briefs, submit YouTube presentations, and engage in oral arguments against other students using Google+ Hangouts. During the moot court sessions, Harlan and ConSource judges ask the students questions, and challenge them on their briefs. Last term, the final round of oral arguments was held at the National Constitution Center in Philadelphia before an esteemed panel of judges. The participants debated both sides of Fisher v. University of Texas, Austin.

You can see the winning briefs from 2013 (Fisher I), 2014 (Noel Canning), 2015 (Zivotofsky), and 2016 (Fisher II).

The grand prize for the top two students is a trip to Washington, D.C. to celebrate ConSource’s Constitution Day 2013. Members of the runner-up team will each receive an iPad.

I ask your help to support the prizes for these amazing students. 100% of your tax-deductible donation will be used to cover the costs of bringing the students to our nation’s capital.  The Harlan Institute has no salaried employees, and all of our overhead costs are covered by sponsorships.

Thank you for your support.

Sincerely,

Josh Blackman
President, The Harlan Institute

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Scholars’ Letters

In 2012, Richard Fallon wrote an insightful and influential article concerning so-called “scholars’ briefs.” Law professors, who had little-to-no role in drafting the briefs, sign their names, solely to lend their credibility and gravitas to the enterprise. Fallon writes that “many professors compromise their integrity by joining such briefs too promiscuously,” and urges “standards that professors should insist upon before signing amicus briefs that they do not write.”

Early in my academic career, I was barraged by offers to join “scholars briefs” in support of cert petitions, concerning topics in my area of expertise, such as federalism and the separation of powers. There was never any pay offered–merely the opportunity to have my name on a SCOTUS brief. I was not involved in drafting those briefs, though I ensured that any items I disagreed with be removed–or else I would walk away. In hindsight, and after further reflection on Fallon’s article, I regret even joining these briefs.

My policy for the last two years or so has been not to join a brief unless I played a substantial role in writing it–either as the lead author, or a co-author. It is not enough to be given the opportunity to review an already-polished brief, where it is too late to make any meaningful changes. With this philosophy I have turned down a number of opportunities, explaining that unless I am involved with writing it, all I would lend to the brief is my name and credibility. (You can see all of my briefs under the Experience section of my C.V.).

A related phenomenon is the scholars’ letter. Not directed to any court, these documents are framed as open letters to the public, signed by a host of law professors. Why are they written? Presumably because the law professors have some sort of unique insight that the public ought to be aware of. For example, 40 liberal law professors joined an American Constitution Society-backed letter sent to President-elect Trump “laying down a marker” about several important constitutional issues, such as the First Amendment, Roe v. Wade, and “hate-filled speech.” Pam Karlan astutely noted that they were “under no illusion that Trump is going to bother to read a letter from law professors.”

There is also another letter circulating opposing Senator Sessions’s nomination as Attorney General. At last count there were more than 1,100 professors who signed. The professors are also crowdfunding a GoFundMe campaign to print this letter (with all 1,100+ names) as advertisements “in the hometown newspapers of specific senators who are undecided about their vote regarding Sessions’ nomination.” They have now raised $10,714 out of $13,000. (Many of the donations are from “anonymous”–no doubt they are staunch defenders of Justice Thomas’s position concerning the unconstitutionality of disclosure laws). I’m sure soon enough we’ll see a similar letter opposing whoever Trump’s first nominee is to the Supreme Court.

Fallon’s critique about scholars’ briefs applies equally to scholars’ letters. Here, the 1,100 professors who signed the letter had absolutely no role in its drafting. Take it or leave it. To the extent that they all agree with every sentence of the letter, then the statement must be so anodyne that it adds little beyond what the New York Times editorial page has already said. Imagine an actual law school workshop attended by over 1,000 professors–would anything be agreed upon?!. Law professors would never add their name to a law review article they didn’t write. Why are scholars’ letters any different?

I received some flak on Twitter for criticizing the ACS letter. Many of the issues in the letter overlapped significantly with those stated by the Originalist Against Trump letter I joined. I tweeted that the ACS should have reached out to some of the Originalists Against Trump members to produce a joint-letter that would meet somewhere in the middle. It would have had much more resonance than a letter from bunch of Obama and Clinton supporters that are criticizing Trump. There was push-back on Twitter, and they urged that this was not the time for a consensus letter. OK, fine. But these scholars’ letters, signed only by people who agree with each other, add nothing new to the equation, and are little more than press releases trading on the scholars’ reputations, not acts of scholarship. The USA Today’s headline served that former purpose: “Legal scholars to Trump: Abide by Constitution.” At least Tony Mauro’s headline in NLJ was more descriptively accurate towards the latter: “Liberal Law Profs ‘Lay Down a Marker’ on Constitutional Battles to Come.”

The Originalists Against Trump letter was significant, because it was a statement against interest–conservatives and libertarians, who stood to benefit from a Trump presidency (perhaps) were willing to put their credibility on the line to stand up against a candidate we deemed dangerous. Even after the election, I still stand by my statement, although several signatories have had their regrets.

 

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