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After Lucia was decided, Seth Barrett Tillman and I recognized that a line draw in Morrison v. Olson may have been destabilized. We analyze this issue on Lawfare: Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?

Here is the introduction:

Recent debates over the constitutionality of Robert Mueller’s appointment as special counsel turn on whether he is a principal or inferior “officer of the United States.” Steven Calabresi contends that Mueller is in fact a principal officer, who, as a result, must be nominated by the president, and confirmed by the Senate. George Conway, writing for Lawfare, counters that Mueller is an inferior officer, who may be appointed by the assistant attorney general—the relevant department head—without Senate confirmation. There may be a third option.

The Supreme Court’s recent decision in Lucia v. SEC explains that if a federal position is only “temporary,” then such a position is likely not an “office of the United States.” Rather, to frame the issue as the court did in Buckley v. Valeo, the position is a mere “employee of the United States.” This understanding of the distinction between “officer” and “employee” relies on a line of cases stretching back to Reconstruction. As a matter of first impression, it would appear that Mueller’s appointment is “temporary.” Therefore, he may not be an “officer of the United States” under the rule in Lucia. More pressingly, language in Justice Elena Kagan’s recent majority opinion in Lucia may have cast doubt on Morrison v. Olson’s definition of an “officer of the United States.” If Lucia is correct on this point (and we think it is), and if Morrison is now incorrect on this point (and we think it is), then Special Counsel Mueller is merely an “employee of the United States.” This post addresses four important questions that stem from this somewhat unexpected development in the law of office and officer.

In a powerful new article, Jonathan Mitchell lays to rest one of the biggest myths on Constitutional Law: that the power of judicial review is akin to a veto, wherein the Court can “strike down” or render “void” a duly enacted statute. In The Writ-of-Erasure Fallacy, Mitchell states what should be an obvious fact:

But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.

This myth has real-world practical consequences. Howard Wasserman, my frequent co-author, highlights why the “myth” led the Supreme Court astray in Plessy v. Ferguson:

Mitchell then illustrates the nefarious effects of the writ-of-erasure fallacy in two doctrines. The first involves the Civil Rights Act of 1875, a late-Reconstruction statute that prohibited race discrimination in places of public accommodation. In The Civil Rights Cases, the Court held that Congress lacked the authority under § 5 of the Fourteenth Amendment to prohibit private racial discrimination, while treating the statute as void for all purposes. By purporting to “erase” the Act, however, the Court disabled its future uses, such as against discrimination on a train traveling in interstate commerce or against state-compelled racial segregation in Plessy v. Ferguson. As to the latter, Mitchell argues that the Court should have held that the 1875 Act, still extant as federal law, preempted the discriminatory state law.

In other words, the Louisiana segregation law should have been preempted by the 1875 Civil Rights Act. However, the Plessy Court rejected that argument, based on the myth that the federal law was indeed “struck down.”

Randy and I added the following “draft” study guide question to the Fourth Edition of our casebook:

The Civil Rights Act of 1875 guaranteed “the full and equal enjoyment” of “public conveyances on land,” including trains, to “citizens of every race and color.” The Plessy Court found that The Civil Rights Cases held the Act was “unconstitutional and void.” However, recall that The Civil Rights Cases concluded that Congress lacked the power under Section 5 of the 14th Amendment to regulate private businesses. Is the Civil Rights Act of 1875 still constitutional as applied to state action, such as the Louisiana segregation law? *FN If so, then why does that federal statute not preempt the Louisiana segregation law?

*FN – See Jonathan Mitchell, The Writ-of-Erasure Fallacy, ___ Va. L.Rev. __ (2018) (“A statute that the Supreme Court has declared unconstitutional is not ‘void’ — even if a prior Supreme Court opinion describes it as ‘void.’ The statute remains a law until it is repealed, and it must be enforced by courts to the extent they can do so consistent with the Constitution. Even if one accepts the Civil Rights Cases’s interpretation of the Constitution, that means only that Congress cannot reach purely private discrimination under its section 5 enforcement powers. It does not excuse courts from enforcing the Civil Rights Act of 1875 in cases involving racial discrimination that is “sanctioned in some way by the State” or ‘done under State authority.’ The Plessy Court fell victim to the writ-of-erasure fallacy: It assumed that the Civil Rights Cases had canceled or ‘voided’ the statutory provisions in the Civil Rights Act of 1875, when the statutes remained on the books and compelled the courts to act against state-mandated racial discrimination in places of public accommodation.”).

Mitchell also rebuts another facet of the “writ-of-erasure” myth: when the Supreme Court declares a law unconstitutional in one state, similar laws nationwide are not removed from the statute books. Indeed, a similar state law that was not challenged remains enforceable until (a) the executive branch voluntarily ceases enforcement because of the Supreme Court precedent or (b) a court enjoins the application of that specific state law.

I discuss this dynamic in my new article, The Irrepressible Myth of Cooper v. Aaron:

Lawrence v. Texas illustrates this dynamic. While it is perhaps shorthand to say that the Supreme Court “struck down” Texas’s criminal prohibition on sodomy, more precisely the majority opinion issued the following order: the “judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.” Not even the “transcendent dimensions” of Justice Kennedy’s prose could physically remove Section 21.06(a) from the Texas Penal Code. Indeed, the provision remains on the books, albeit appended by a notation from the Texas Legislature that “Section 21.06 was declared unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472.” As Jonathan Mitchell has explained, the Supreme Court does not “wield[] a writ of erasure that blots out unconstitutional legislation.” If Texas officials attempted to enforce this prohibition, under the judgment in Lawrence, they would be on the hook for damages under 42 U.S.C. § 1983 in a subsequent suit. Nor did the Court’s judgment in Lawrence directly implicate the laws of any other state. Even after Lawrence, and to this day, Virginia’s code treats as a felon one who “voluntarily submits to such carnal knowledge,” which includes sodomy. Because this law has not been enforced since Lawrence, it remains on the books. But any prosecutor who brought sodomy charges under this section, in conflict with Lawrence’s precedent, would likewise be on the hook for damages.

Recently, the Boston Globe reported that the Massachusetts legislature is expressly repealing its criminal prohibitions on abortion, adultery, and fornication. Such laws would, without question, be declared unconstitutional if challenged in court. After all, a criminal prohibition cannot survive Roe and Casey. And bans on adultery and fornication cannot survive Lawrence and Obergefell. Why then is Massachusetts bothering to repeal them? The article explains:

In passing the bill, many lawmakers cited concerns over whether Trump’s most recent nominee to the Supreme Court, Brett Kavanaugh, might eventually tilt the court in favor of overturning its landmark decision on Roe v. Wade, allowing states to outlaw abortion again.

And while a 1981 state high court decision strongly suggests the Massachusetts Constitution protects abortion rights, advocates say it’s not explicit and needed clarification from Beacon Hill.

If Roe is overturned (which it will not be), the criminal prohibition on abortion–which was still on the books–becomes (once again) good law. The Massachusetts legislature has wisely rejected the writ of erasure fallacy.

Read Mitchell’s article. You will learn something.

 

Today, I submitted a letter to the Disciplinary Board of the Supreme Court of Pennsylvania, which proposed adopting Rule 8.4(g) with certain modifications. I have submitted similar letters in the past to the relevant stage agencies in Louisiana, Nevada, Tennessee, Arizona, Maine, New Hampshire. (To date, only Vermont has adopted ABA Model Rule 8.4(g) in its entirety.) This most recent letter, however, provided my first opportunity to consider NIFLA v. Becerra.

Here is the relevant analysis:

. . . [T]hese concerns were highlighted by the Supreme Court’s recent decision in National Institute of Family and Life Advocates v. Becerra. 138 S.Ct. 2361 (June 26, 2018) (NIFLA). NIFLA considered whether California could require certain medical facilities (both licensed and unlicensed) to display messages concerning the availability of public funding for abortions.

In recent years, several circuit courts of appeals have strictly regulated speech associated with a regulated profession—that is “professional speech”—when “it involves personalized services and requires a professional license from the State.” Id. at 2375. However, such a regime, the Supreme Court explained, “gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” Id. The Court expressed caution with applying laxer scrutiny to so-called “professional speech,” as that standard “would cover a wide array of individuals—doctors, lawyers, nurses, physical therapists, truck drivers, bartenders, barbers, and many others.” Id. at 2375 (emphasis added). Stated simply, the government lacks an “unfettered power” to regulate the speech of “lawyers,” simply because they provide “personalize services” after receiving a “professional license.”

The Court identified two narrow exceptions to this rule, neither of which turned on the fact that professionals were speaking.” Id. at 2372. In the first circumstance, the Court has “applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’” Id. at 2372 (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985)). This first condition is not relevant to the Proposed Amendments: Speech uttered “in the practice of law” does not “require professionals to disclose factual, noncontroversial information.”

Second, the Court noted that “States may regulate professional conduct, even though that conduct incidentally involves speech.” Id. at 2372. This standard is directly relevant to the proposed rule: the state can “regulate professional conduct . . . that . . . incidentally involves speech,” but it cannot regulate speech that incidentally involves professional conduct. The Proposed Amendment, by its own terms, straddles that line. It applies to both “conduct” “in the practice of law” and “words” (that is speech|) “in the practice of law.” If the Board struck the phrase “words,” and focused solely on “conduct” “in the practice of law,” the Proposed Rule would potentially fall within the second exception identified in NIFLA. But as drafted, the regulation of “words” would be subject to traditional strict scrutiny.

The NIFLA Court expressly referenced “lawyers” in its list of regulated professions. That was deliberate. I was in the Court while Justice Thomas announced that opinion. As he did so, Rule 8.4(g) shot to the forefront of my mind.

After NIFLA Rule 8.4.(g) now rests on shaky ground: the state can “regulate professional conduct . . . that . . . incidentally involves speech,” but it cannot regulate speech that incidentally involves professional conduct. The Pennsylvania Supreme Court should take notice of this new precedent, and reject the rule as proposed.

I am pleased to announce that a settlement has been reached in Defense Distributed et al v. Department of State. (I have served as counsel for the Cody Wilson, Defense Distributed, and the Second Amendment Foundation since 2015). The Second Amendment Foundation has issued the following press release:

DOJ, SAF REACH SETTLEMENT IN DEFENSE DISTRIBUTED LAWSUIT

For Immediate Release                                      Contact:  Alan Gottlieb (425) 454-7012

BELLEVUE, WA – The Department of Justice and Second Amendment Foundation have reached a settlement in SAF’s lawsuit on behalf of Cody Wilson and Defense Distributed over free speech issues related to 3-D files and other information that may be used to manufacture lawful firearms.

SAF and Defense Distributed had filed suit against the State Department under the Obama administration, challenging a May 2013 attempt to control public speech as an export under the International Traffic in Arms Regulations (ITAR), a Cold War-era law intended to control exports of military articles.

Under terms of the settlement, the government has agreed to waive its prior restraint against the plaintiffs, allowing them to freely publish the 3-D files and other information at issue. The government has also agreed to pay a significant portion of the plaintiffs’ attorney’s fees, and to return $10,000 in State Department registration dues paid by Defense Distributed as a result of the prior restraint.

Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.

“Not only is this a First Amendment victory for free speech, it also is a devastating blow to the gun prohibition lobby,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “For years, anti-gunners have contended that modern semi-automatic sport-utility rifles are so-called ‘weapons of war,’ and with this settlement, the government has acknowledged they are nothing of the sort.

“Under this settlement,” he continued, “the government will draft and pursue regulatory amendments that eliminate ITAR control over the technical information at the center of this case. They will transfer export jurisdiction to the Commerce Department, which does not impose prior restraint on public speech. That will allow Defense Distributed and SAF to publish information about 3-D technology.”

The Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms.  Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

I have posted all of the major pleadings in this case here.

In a series of posts, I have identified several of my academic-writing pet peeves, including the phrases “interesting,” “perhaps,” and “I think,” as well as my rules for tweeting. Add one more to the list: “As Professor Smith has written . . . ” At first glance, this commonly-used phrase may seem innocuous and anodyne, but in fact this usage often serves as a crutch to hide a lack of analysis.

Consider the following passage:

X v. Y was incorrectly decided. As Professor Smith has written, X v. Y was poorly reasoned. 

The emphasized phrase conveys three important pieces of information. First, Professor Smith is some sort of authority on X v. Y. Second, Professor Smith is correct that X v. Y was poorly reasoned. Third, the author agrees with Professor Smith (why else would he cite him?). All three of these points are buried under the phrase “As.” In other words, it is undeniable that Professor X is an authority, Professor X is correct, so therefore, the author agree with him.

Consider a nearly-identical passage, without the word “As,” and “has written” is changed to “wrote.”

X v. Y was incorrectly decided. Professor Smith wrote that X v. Y was poorly reasoned. 

My response to this second passage is, “So what?” Who is Professor Smith? Why do I care what he thinks? How do I know he is correct that X v. Y is poorly reasoned? And does the author agree with Professor X? Why is the emphasized sentence even in the passage?

The word “as” does so much work–you likely never even noticed it. But in this sentence, “as” serves as a crutch to hide a lack of analysis.

A far better approach is to separately answer the three questions. Consider this revised passage:

X v. Y was incorrectly decided. Professor Smith is an authority on X v. Y because he wrote the leading treatise on the topic. He wrote that X v. Y was poorly reasoned because it failed to reconcile the Court’s prior precedents. Professor Smith’s conclusion is well-founded, as the majority opinion did not even mention, let alone distinguish, Y v. Z.

This third passage conveys all of the information that the first passage implies, but does not state expressly. It is vastly superior.

One possible exception to this rule is the Supreme Court. Compare these two sentences:

As Justice Smith has held, X v. Y was correctly decided.

Justice Smith held that X v. Y was correctly decided.

I see no meaningful difference between these two sentences. Both of these usages are acceptable. Why?

A citation to a statement in a Supreme Court majority opinion automatically answers each of the three relevant questions. There is less need to do so expressly. First, the Justice is important because she is a Justice. Second, Justice Smith is correct because she was in the majority. Third, it doesn’t really matter whether the author agrees with Justice Smith, because she was in the majority. But for everyone else not on the Supreme Court, drop the usage.

Without question, I’ve used the phrase “As Professor Smith has written,” in the past, but in the future, will try to eliminate it from my usage. I’m sure I’ll slip–I apologize in advance.

Perhaps people who use this phrase will find my post, well, interesting. Or, at least I think so.