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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.

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.

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.

The big loss yesterday for Israel in the United Nations will make it much harder to negotiate peace.Too bad, but we will get it done anyway!

— Donald J. Trump (@realDonaldTrump) December 24, 2016

Doing my best to disregard the many inflammatory President O statements and roadblocks.Thought it was going to be a smooth transition – NOT!

— Donald J. Trump (@realDonaldTrump) December 28, 2016

We cannot continue to let Israel be treated with such total disdain and disrespect. They used to have a great friend in the U.S., but…….

— Donald J. Trump (@realDonaldTrump) December 28, 2016

not anymore. The beginning of the end was the horrible Iran deal, and now this (U.N.)! Stay strong Israel, January 20th is fast approaching!

— Donald J. Trump (@realDonaldTrump) December 28, 2016

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.”

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.

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

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.

Update: Jonathan Adler offers his thoughts on regret over signing the “Originalists Against Trump” letter:

@jcdevereaux1 @JoshMBlackman it was much easier for some to sign when they were certain he would lose 2/2

— Jonathan H. Adler (@jadler1969) December 27, 2016