Eugene Volokh's Blog, page 105

[Jonathan H. Adler] Have You Ever Seen an Emolument Fly?

[From Qatar, with love, a "palace in the sky."]

ABC News reports:

In what may be the most valuable gift ever extended to the United States from a foreign government, the Trump administration is preparing to accept a super luxury Boeing 747-8 jumbo jet from the royal family of Qatar -- a gift that is to be available for use by President Donald Trump as the new Air Force One until shortly before he leaves office, at which time ownership of the plane will be transferred to the Trump presidential library foundation, sources familiar with the proposed arrangement told ABC News.

The gift is expected to be announced next week, when Trump visits Qatar on the first foreign trip of his second term, according to sources familiar with the plans.

Trump toured the plane, which is so opulently configured it is known as "a flying palace," while it was parked at the West Palm Beach International Airport in February.

One might think this gift raises legal issues. Administration lawyers apparently have those bases covered:

sources told ABC News that lawyers for the White House counsel's office and the Department of Justice drafted an analysis for Defense Secretary Pete Hegseth concluding that is legal for the Department of Defense to accept the aircraft as a gift and later turn it over to the Trump library, and that it does not violate laws against bribery or the Constitution's prohibition (the emoluments clause) of any U.S. government official accepting gifts "from any King, Prince or foreign State."

Sources told ABC News that Attorney General Pam Bondi and Trump's top White House lawyer David Warrington concluded it would be "legally permissible" for the donation of the aircraft to be conditioned on transferring its ownership to Trump's presidential library before the end of his term, according to sources familiar with their determination. . . .

Both the White House and DOJ concluded that because the gift is not conditioned on any official act, it does not constitute bribery, the sources said. Bondi's legal analysis also says it does not run afoul of the Constitution's prohibition on foreign gifts because the plane is not being given to an individual, but rather to the United States Air Force and, eventually, to the presidential library foundation, the sources said.

One might also think a gift of this sort could raise security concerns, particularly given the Qatari government's efforts to influence U.S. policy (and universities). Apparently such concerns will be addressed when the plane is modified to meet the requirements for presidential use.

According to the story, the plane is to be transferred to the Trump Presidential Library Foundation no later than January 1, 2029, at the federal government's expense. The story estimates the value of the plane at approximately $400 million.

In unrelated news, the Associated Press reported on April 30:

The Trump family company struck a deal Wednesday to build a luxury golf resort in Qatar in a sign it has no plans to hold back from foreign dealmaking during a second Trump administration, despite the danger of a president shaping U.S. public policy for personal financial gain.

The project, which features Trump-branded beachside villas and an 18-hole golf course to be built by a Saudi Arabian company, is the first foreign deal by the Trump Organization since Donald Trump took office and unlike any done in his first term. Back then, he forswore foreign deals in an extraordinary press conference surrounded by stacks of legal documents as he pledged to avoid even the appearance of conflict of interest.

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[Josh Blackman] Today in Supreme Court History: May 11, 1942

5/11/1942: Gordon Hirabayashi "failed to report to the Civil Control Station within the designated area." The Supreme Court upheld the constitutionality of his conviction in Hirabayashi v. U.S. (1943).

Gordon Hirabayashi

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[Eugene Volokh] Virginia McDonald's Bars Under-21-Year-Olds from Eating Inside. Is That Legal?

WJLA (Ida Domingo) reports that a Virginia McDonald's put up a sign that states,

Due to repeated incidents of student violence, this McDonald's location is temporarily closed for dine-in service to anyone under 21 years of age. This decision was made to protect our staff, our guests, and our community.

According to the story,

To enter, customers must ring a doorbell to be allowed entry by an employee. A spokesperson for the franchise said student violence and disrespectful behavior occur at least once a week, causing frustration among staff and customers.

"The fighting is a problem and they're pretty brazen. The management tries to step in and these kids are pretty violent," said longtime customer Robert Hancasky, who said he has frequented this McDonald's for nearly 50 years. "They're just trying to stop the violence because it's not fair to any other customer who comes in for the sandwich, a hard-working person, they got to put up with a bunch of idiots."

Despite the restrictions, customers under 21 can still use the drive-thru, order via a mobile app for curbside pickup, and dine inside if accompanied by a chaperone.

I sympathize with the management's concerns, and with the concerns of the quoted customers. But my tentative thinking is that this violates Virginia public accommodations law, which provides,

A. As used in this section:
"Age" means being an individual who is at least 18 years of age.
"Place of public accommodation" means all places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, or accommodations.

B. It is an unlawful discriminatory practice for any person … to … deny [or attempt to deny] any individual … any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, or to segregate or discriminate against any such person in the use thereof, or to … display … any communication … to the effect that any of the accommodations, advantages, facilities, privileges, or services of any such place shall be refused … on the basis of race, color, religion, ethnic or national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, gender identity, marital status, disability, or military status.

C. The provisions of this section shall not apply to a private club, a place of accommodation owned by or operated on behalf of a religious corporation, association, or society that is not in fact open to the public, or any other establishment that is not in fact open to the public.

D. The provisions of this section shall not prohibit (i) discrimination against individuals who are less than 18 years of age or (ii) the provision of special benefits, incentives, discounts, or promotions by public or private programs to assist persons who are 50 years of age or older.

E. The provisions of this section shall not supersede or interfere with any state law or local ordinance that prohibits a person under the age of 21 from entering a place of public accommodation.

The McDonald's is a restaurant. It's denying 18-to-20-year-olds some of the "accommodations, advantages, facilities, [and] services"—namely, the option of in-store eating—of the restaurant. This seems to be prohibited. Some state laws have been read as implicitly excepting discrimination that judges view as minor and reasonable. But here the law explicitly authorizes some age classifications, which counsels against courts reading  in an implicit exception for other age classifications. And beyond that, I know of no cases that read these statutes as implicitly allowing classifications that treat some covered attribute as a proxy for a tendency to engage in bad behavior. The whole point of these laws is precisely to require individualized decisionmaking about bad behavior, rather than allowing the use of such proxies.

The store can of course ban particular patrons, of whatever age, for "violence and disrespectful behavior." But it can't exclude all 18-to-20-year-olds because some are violent and disrespectful.

There are of course plausible arguments to be made about

whether laws banning discrimination in public accommodations are generally a good idea; whether laws banning discrimination in retail sales are generally a good idea (for instance, federal law, which bans discrimination based on race, religion, and national origin in places of public accommodations, doesn't apply to most retail stores, though it does apply to restaurants); whether laws banning discrimination in retail sales based on age are generally a good idea (most states don't ban such discrimination, and neither does federal law); or what the cutoff age should be, if these laws do exist.

But under the law as it is, it's hard for me to see how the reported actions by the Virginia McDonald's are legal.

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[Ilya Somin] Court Orders Release of Tufts Foreign Student Detained For Her Speech

[The ruling is a victory for the proposition that the First Amendment applies to immigration and visa restrictions.]

Tufts Ph. D. student Rumeysa Ozturk. (Reuters)

 

Yesterday, federal District Judge William K. Sessions, III, of the District of Vermont ordered the immediate release of Tufts graduate student Rumeysa Ozturk, whom ICE had detained and slated for deportation based on her anti-Israel speech. There does not appear to be a written decision in the case. But here is a summary of  the background of the case, and what the judge said orally:

Tufts University doctoral student Rümeysa Öztürk was released from a Louisiana detention center Friday, six weeks after masked federal agents took her into custody amid the Trump administration's effort to deport noncitizens who have protested against the war in Gaza.

Hours after US District Judge William K. Sessions III ordered her immediate release, a smiling Öztürk was surrounded by a group of supporters who chanted "Rümeysa! Rümeysa!" as she walked out of the detention center Friday evening….

The Department of Homeland Security claimed that Ozturk "engaged in activities in support of Hamas, a foreign terrorist organization that relishes the killing of Americans." However, the only evidence it could provide, even after prodding from Sessions, was an op-ed Ozturk helped write that called on Tufts to divest from Israel.

Ozturk filed a habeas corpus petition challenging her arrest and detention….

Her arrest came a year after Öztürk co-authored a campus newspaper op-ed that was critical of Tufts University's response to the war in Gaza, and her attorneys have said that she was targeted by the administration in an attempt to chill pro-Palestinian speech in violation of her constitutional rights. The 30-year-old, originally from Turkey and on a valid F-1 student visa, was shuttled through multiple states after her arrest and suffered through a series of asthma attacks without adequate medical care, according to her attorneys.

Öztürk, who has not been charged with any crime, was accused by the Trump administration of participating in activities in support of Hamas. Neither the administration nor attorneys for the Department of Justice presented any evidence of her alleged activities in court.

Sessions presided over the more than three-hour hearing, where four witnesses – including Öztürk – testified about her community engagement work and her asthma. Sessions said Öztürk had raised "substantial claims" of both due process and First Amendment violations.

"Continued detention potentially chills the speech of the millions and millions of individuals in this country who are not citizens. Any one of them may now avoid exercising their First Amendment rights for fear of being whisked away to a detention center," Sessions said.

Sessions noted that for multiple weeks, except for the op-ed, the government failed to produce any evidence to support Öztürk's continued detention. "That is literally the case," Sessions said. "There is no evidence here as to the motivation absent the consideration of the op-ed."

The judge ordered her release without any travel restrictions or ICE monitoring.

It is obvious that Ozturk's op ed was the kind of speech protected by the First Amendment. I have previously written on why there is no immigration exception to the First Amendment, nor does it matter that a student visa is not itself a constitutional right:

The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that "Freedom of speech and of press is accorded aliens residing in this country."

A standard response to this view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.

The Cato Institute/FIRE amicus brief in Ozturk's case elaborates on the reasons why the First Amendment applies in much greater detail.

In earlier posts on this topic, I have urged universities to file lawsuits challenging Trump's speech-based deportation policy, rather than letting students like Ozturk fend for themselves. I was happy to see that many schools (including my undergraduate alma mater Amherst College) filed an amicus brief supporting a lawsuit brought against the policy by the American Association of University Professors  (the court recently issued a preliminary ruling in favor of AAUP, allowing the case to go forward). But universities should do more to protect their students.

As I have previously noted, I have little sympathy for recent anti-Israel campus protests, and for the views of many of the foreign students targeted for deportation. But freedom of speech applies regardless of the merits of the opinions targeted by censors. And the sorts of vague standards used to justify deporting Ozturk can easily be turned against adherents of a wide range of other views, including those espoused by people on the political right, as well as the left.

The litigation over speech-based deportations will continue in this and other cases, and this ruling may well be appealed. But it's a good sign, nonetheless.

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[Jonathan H. Adler] Can the EPA Rescind the Endangerment Finding? Should It Even Try?

[A recent Federalist Society webinar on one of the Trump EPA"s top agenda items.]

Environmental Protection Agency Administrator Lee Zeldin has announced that the agency will reconsider the so-called endangerment finding, which triggers the regulation of greenhouse gases under various provisions of the Clean Air Act. For reasons I explained in this post, I believe this is a fool's errand, no matter what one thinks about the threat posed by climate change or the utility of federal regulation.

On Friday, I participated in a webinar discussing the legal and practical issues concerning an attempted rescission of the endangerment finding with regulatory analyst Richard Belzer and attorney Michael Buschbacher of Boyden Gray.  The program was moderated by Laura Stanley of Gibson Dunn. The webinar was sponsored by the Regulatory Transparency Project of the Federalist Society and is viewable below.

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[Jonathan H. Adler] Remembering Justice Souter

[The justices reflect on their former colleague.]

As has become traditional, the sitting and retired justices of the Supreme Court have issued statements regarding the death of Justice David Souter. All of the justices participated, including those who did not serve with him on the Court. The statements may be found here.

For those interested in Justice Souter's jurisprudence, beyond what is found in his opinions, here is the commencement speech he delivered at Harvard in 2010.

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[Eugene Volokh] "This Case Has Ended Up in a Rather Confusing Procedural Neverland," "in a Peter Pan-esque State of Immaturity,"

["preventing any court from adjudicating on the merits." (Lawyers' true superpower: The power to turn every question into a question about procedure.)]

From Westenbroek v. Kappa Kappa Gamma Fraternity, decided by Judge Alan Johnson (D. Wyo.):

The matter before us concerns a lawsuit that was filed in March of 2023 by six women against their sorority and against Artemis Langford, a member of that sorority who had been admitted through normal procedures the previous fall. {… KKG considers itself a "fraternity" in its governing documents. However, emulating Plaintiffs and our national discourse, the Court refers to KKG as a "sorority."}

Plaintiffs, upset by the fact that Ms. Langford is transgender, asked this Court to void her admission, find that the President of Kappa Kappa Gamma (KKG) violated her fiduciary obligations to the sorority, and prevent other transgender women from joining the sorority nationwide. We dismissed the complaint without prejudice in August of 2023, holding, inter alia, that KKG's freedom of expressive association allows it to interpret the word "woman" in its bylaws however it wishes.

In June of 2024, Plaintiffs' appeal to the Tenth Circuit was also dismissed, on the grounds that our dismissal without prejudice was not a final judgment because we implicitly gave Plaintiffs leave to amend.

The Tenth Circuit clarified:

This court has endorsed a process for appealing an otherwise non-final dismissal of a complaint, explaining that "where a district court dismisses but grants leave to amend, the plaintiff may notify the district court of his or her decision to stand on the original complaint and, once a final order or judgment is entered, appeal the grounds for dismissal." Because Appellants did not avail themselves of this process, we cannot conclude that this court has jurisdiction over this matter. In the district court, Appellants may stand on their existing complaint and seek a dismissal with prejudice so that they may perfect an appeal, or they may amend the complaint and pursue further proceedings in the district court.

Despite these instructions, Plaintiffs have taken no action: more than nine months after the Tenth Circuit issued its decision, they have neither amended their complaint nor notified us of their decision to "stand on the original complaint," which would allow them to receive a final judgment that could be appealed.

Defendants, hoping for some form of resolution, have petitioned this Court to set a deadline for Plaintiffs to amend their complaint….

Let us be the first to acknowledge that this case has ended up in a rather confusing procedural Neverland. To summarize, the Tenth Circuit determined that our dismissal was not a final judgment because we intended for Plaintiffs to perfect their complaint. Plaintiffs, however, have not done so; nor have they decided to stand on their original complaint and appeal it. Consequently, the case remains in a Peter Pan-esque state of immaturity, preventing any court from adjudicating on the merits….

After discussing several different rules of civil procedure, the court concluded that defendants' motion should be treated as a Fed. R. Civ. P. 59(e) motion "to alter or amend a judgment," which in this context can be used as "a motion to impose a deadline":

Generally speaking, Rule 59 motions may be granted on four grounds: the correction of manifest errors of law or fact, the discovery of new evidence, the prevention of manifest injustice, or a change in controlling law. The present motion logically falls into the third option: the prevention of manifest injustice. As the Defendants argue, "The Court should not permit Plaintiffs to hold this case in abeyance while allies who are also Kappa shareholders assert identical shareholder derivative claims against Kappa Fraternity Council members in other proceedings." …

[W]e are also closing in on two years post-dismissal, and the non-final nature of our order could … allow Plaintiffs to bypass Wyoming's statute of limitations for contract claims and indefinitely extend their timeline to file this claim. [A Tenth Circuit precedent] indirectly … suggested a Rule 59(e) motion by defendants would have been successful there; we therefore see no reason why it should not also be successful here.

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[Josh Blackman] Today in Supreme Court History: May 10, 1886

5/10/1886: Yick Wo v. Hopkins decided.

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[Jonathan H. Adler] Only Congress May Suspend the Writ of Habeas Corpus

[Lessons from Hamdi v. Rumsfeld.]

As my co-blogger Ilya Somin notes below, White House aide Stephen Miller commented today that the Trump Administration is "actively looking at" whether it would be possible to suspend the writ of habeas corpus on the grounds that the country is suffering an "invasion" by illegal immigrants.

My own view is that the White House can look at this question all it wants, but it is ultimately up to Congress whether the writ should be suspended (at least during times of peace). This is clear form the Constitution's text and structure. The suspension clause is in Article I, section 9, as among several enumerated constraints on legislative power. It is an interesting question whether Courts can review a legislative suspension of the writ, but I think it is relatively clear that the Executive cannot do so unilaterally.

I also think that the Supreme Court has fairly consistently operated under this assumption. Consider Hamdi v. Rumsfeld. In that case there was unanimous agreement that Congress had not suspended the writ, and so the question was whether the federal government could detain Hamdi (an American citizen alleged to be an enemy combatant captured in Afghanistan) in the United States without putting him on trial.

Justice Scalia, joined by Justice Stevens, concluded that the answer was "no," absent suspension of the writ of habeas corpus by Congress.

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge.

In other words, the Constitution's full procedural protections apply unless and until Congress suspends the writ.

While other justices did not agree with Justice Scalia on the merits, a majority of the justices indicated that they too believe it is for Congress to determine whether the writ should be suspended.

Justice O'Connor's plurality opinion, for example, noted that the writ exists as a check on executive power unless and until Congress suspends it. Consider these two passages:

Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U.S. Const., Art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e.g., Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755; Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law.

Unless Congress suspends the writ, it remains a check on the Executive. This is a claim that would be nonsensical if the Executive could suspend the writ unilaterally. As she wrote later in her opinion:

Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U.S., at 301, 121 S.Ct. 2271 ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court  with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

Even Justice Thomas, who embraced an incredibly expansive view of the Executive Branch's authority to detain enemy combatants in an armed conflict, wrote as if it is solely up to Congress whether the writ should be suspended. Indeed, this formed part of the basis for his disagreement with Justice Scalia, as if suspension of the writ was necessary to detain Hamdi, Justice Thomas wrote, Congress would have to violate the Constitution (by suspending the writ absent the required predicate) to achieve the desired result.

Justice SCALIA apparently does not disagree that the Federal Government has all power necessary to protect the Nation. If criminal processes do not suffice, however, Justice SCALIA would require Congress to suspend the writ. See ante, at 2673. But the fact that the writ may not be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, § 9, cl. 2, poses two related problems. First, this condition might not obtain here or during many other emergencies during which this detention authority might be necessary. Congress would then have to choose between acting unconstitutionally4 and depriving the President of the tools he needs to protect the Nation. Second, I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy.

So even if the White house is convinced that the United States is currently subject to an "invasion" (a view I reject), I believe there is broad (if not universal) agreement that it would be solely up to Congress to suspend the writ.

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[Jonathan H. Adler] Homer Nodded in the U.S. Reports

[How the phrase ended up in an opinion after it had been omitted.]

The phrase "Homer nodded" appears four times in the U.S. Reports.  The first time was in Justice Douglas' concurrence in Brandenburg v. Ohio (1969) (quoting Judge Learned Hand as it happens).

The phrase would not appear in another Supreme Court decision until 1992's Lee v. Weisman, when Justice Souter included it in a footnote. Yet as Mark Tushnet recounts on Balkinization, while the phrase had been included in the original slip opinion, it was omitted by the Reporter's office--apparently because no one there recognized the phrase and they thought it was an error. As a consequence, it did not appear in the official bound volume for several years. Indeed, it was only after Tushnet contacted Souter about the omission that Souter realized what had occurred, and the language was restored by a subsequent erratum.

Tushnet writes:

 "Homer nodded" comes to us from the Roman poet Horace via two English poets from the turn of the seventeenth and eighteenth centuries, John Dryden and Alexander Pope. It's been widely observed that Justice Souter seems to have been more comfortable in some earlier century, though the seventeenth seems to me a bit too far back. Justice Souter's writing style was more ornate, more nineteenth century, than the pared down (Hemingway-influenced?) contemporary opinion style.

"Homer nodded" was part of Justice Souter's store of cultural knowledge—but not, apparently, part of the store of such knowledge in the Reporter's office. Justice Souter could write "Homer nodded" as easily as Justice Scalia could refer without citation to Broadway lyrics or Justice Kagan (with citation!) to Dr. Seuss. When I retired from classroom teaching I had just about played out my string on cultural allusions that my students could understand ("The Princess Bride" was hanging in there by a thread), and my guess is that that experience is near-universal (we age, the students we deal with in the classroom remain young).

If there's a larger point here, and maybe there isn't, it is something like this: We all carry cultural knowledge with us but what that knowledge is changes—not for any individual, but for the population composing our institutions—and analysis may go at least a bit off the rails if "we" (the older among us) use our cultural knowledge as the predicate for our evaluation of the performance of today's institutions. Or, I suppose, for our evaluation of the performance of yesterday's.

For what it is worth, "Homer nodded" has appeared in two more Supreme Court opinions: McCreary County, Kentucky v. American Civil Liberties Union (2005) (citing Lee v. Wiesman) and Justice Gorsuch's concurrence in Kisor v. Wilkie (2019).

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