Eugene Volokh's Blog, page 114

[Eugene Volokh] Deportation for "Pro-Palestine or Anti-Israel Political Speech" May Violate the First Amendment, Court Holds

[1.] From today's decision by Judge William Young (D. Mass.) in American Ass'n of Univ. Profs. v. Rubio:

This case raises the issue of whether certain Public Officials can enforce a policy of arresting, detaining and deporting non-citizens who are otherwise here legally based solely upon their pro-Palestine or anti-Israel political speech….

The court allowed plaintiffs' First Amendment challenges to go forward:

Although this case raises novel First Amendment issues and the precise scope of the ideological-deportation policy challenged by the Plaintiffs is not yet clear, at the motion to dismiss stage the Plaintiffs' First Amendment claims survive.

It is well established that noncitizens have at least some First Amendment rights, see Bridges v. Wixon (1945), and political speech is "at the core of what the First Amendment is designed to protect." Although case law defining the scope of noncitizens' First Amendment rights is notably sparse, the Plaintiffs have at least plausibly alleged that noncitizens, including lawful permanent residents, are being targeted specifically for exercising their right to political speech. See American-Arab Anti-Discrim. Comm. v. Reno (9th Cir. 1995), rev'd on other grounds ("The Supreme Court … has accorded to aliens living in the United States those protections of the Bill of Rights that are not, by the text of the Constitution, restricted to citizens."); OPAWL – Building AAPI Feminist Leadership v. Yost (6th Cir. 2024) ("Lawful permanent residents have First Amendment rights…. [T]hey have developed sufficient connections with the United States to be considered part of the national community: They live and work here lawfully, and they can serve in the military."); United States v. Verdugo-Urquidez (1990) ("[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country."); but see Price v. United States Immigr. & Naturalization Serv. (9th Cir. 1991). The Plaintiffs have also clarified that they do not mean to bring a selective prosecution challenge, but rather contend "that Defendants are deporting people on the basis of their viewpoints alone."

Contrary to what the Public Officials contend, this Court cannot agree that this alleged conduct would be constitutional. See Abourezk v. Reagan (D.D.C. 1984) ("[Public Officials] may not, consistent with the First Amendment, deny [noncitizens] entry solely on account of the content of their speech."), vacated on other grounds (D.C. Cir. 1986). The Public Officials' reliance on case law from the height of the second Red Scare era, such as Harisiades v. Shaughnessy (1952), is misplaced, and this Court assumes instead that noncitizens lawfully present in the United States have at least the core rights protected by the First Amendment, chief among them the right to speak on political subjects at least where such speech poses no immediate threat to others. See American Arab Anti-Discrim. Comm. v. Meese (C.D. Cal. 1989) (collecting cases holding that noncitizens have First Amendment rights, holding that noncitizens retain these rights in the deportation setting, and observing that in Harisiades, "the Supreme Court applied to aliens the same First Amendment test then applicable to citizens," which has since changed), aff'd in part, rev'd in part sub nom. American-Arab Anti-Discrim. Comm. v. Thornburgh (9th Cir. 1991); see also Keyishian v. Board of Regents (1967) (holding a state law denying employment to members of subversive organizations, without requiring proof of knowledge and intent respecting the organizations' illegal objectives, unconstitutional); Holder v. Humanitarian L. Project (2010) (upholding application of statute criminalizing material support of terrorism to groups providing any material support to designated terrorist groups, including legal training and political advocacy done in coordination with them, but noting that the Court "in no way suggest[s] that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations")….

Here's my summary of the caselaw on the subject from a February post, which illustrates how the precedents are indeed split on the matter:

The leading case, Harisiades v. Shaughnessy, 342 U.S. 580 (1952), speaks about nearly unlimit­ed Con­gressional power over deportation, but that language is in the sec­tion dealing with the argument that the deportation of Harisiades violated the Due Process Clause. The First Amendment discussion rested on the con­clusion that active membership in the Communist Party was sub­stan­tive­ly unpro­tect­ed by the First Amendment—both for citizens and non­citi­zens—which was the law at the time (see Den­nis v. United States (1951)).

Lower court cases are mixed. For the view that Harisiades doesn't generally let the government act based on otherwise protected speech by aliens, see American-Arab Anti-Discrim. Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995), rev'd on other grounds, 525 U.S. 471 (1999):

[T]he Court has explicitly stated that "[f]reedom of speech and of press is accorded aliens residing in this country." … Furthermore, the values underlying the First Amendment require the full applicability of First Amendment rights to the deportation setting. Thus, "read properly, Harisiades establishes that deportation grounds are to be judged by the same standard applied to other burdens on First Amendment rights."

See also Parcham v. INS, 769 F.2d 1001 (4th Cir. 1985). For the view that the federal government generally has nearly unlimited immigration power over aliens, see Price v. INS, 962 F.2d 836 (9th Cir. 1991):

[T]he protection afforded resident aliens may be limited…. [T]he Court has historically afforded Congress great deference in the area of immigration and naturalization…. "[I]n the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.'" [A]lthough Price [as a lawful permanent resident] is justified in expecting the greatest degree of constitutional protection afforded a non-citizen, the protection afforded him under the First Amendment certainly is not greater than that of the citizen plaintiffs in Kleindienst [whose First Amendment claims were rejected -EV].

See also Bluman v. FEC (D.C.C. 2011) (Kavanaugh, J.), aff'd without opinion (U.S. 2012): "The Court has further indicated that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades."

[2.] In the process, Judge Young concluded that the court has jurisdiction, notwithstanding certain statutory limits imposed by federal immigration statutes, and that plaintiffs had standing:

On balance, drawing all factual inferences in their favor, at least the AAUP and MESA [Middle East Studies Association] have associational standing to challenge the allegedly objective chill on their noncitizen members' speech. Although they have downplayed this standing argument in their supporting briefs, the Plaintiffs have alleged facts supporting a plausible inference that reasonable noncitizen members of the Plaintiff organizations would self-censor in response to the challenged policy based on a credible threat of enforcement, which amounts to an objective chill….

The experiences of five anonymous AAUP members and two anonymous MESA members, all lawful permanent residents and professors or lecturers, are described in the complaint, with particularized allegations that these members have stopped assigning materials or teaching formerly-offered classes touching on Israel and Palestine, turned down opportunities to write and speak on related matters, canceled conference and other plans, removed related previously published writing and scholarship from the internet, declined leadership and event opportunities within their organizations, ceased traveling abroad or departed the country, and stopped associating or protesting, all out of fear of potential retaliatory deportation if they engage in political speech….

Instead of emphasizing the chill on their noncitizen members' speech, the Plaintiffs have stressed their citizen members' right to hear from and associate with noncitizens, citing Kleindenst v. Mandel (1972) for the proposition that the right to hear and to receive information and ideas is protected by the First Amendment. The Plaintiffs are not wrong to invoke their citizen members' right to hear and to receive information, particularly given that the First Amendment is "nowhere more vital than in our schools and universities," nor of course their right to associate, but they point to no authority for the extension of what amounts to a kind of right-to-consortium claim to the right to hear from and associate with potential deportees. Mandel involved an individual would-be speaker who was invited to speak by particular would-be hearers and refused entry, lending support to the Public Officials' argument that the harm to the citizen members' rights is too attenuated because no specific member is alleged to have been deprived by the government of the opportunity to hear from or associate with a specific noncitizen.

The Plaintiffs' "right to hear" argument, therefore, while non-frivolous, asks this Court to take an apparently unprecedented creative leap: to rule that one may sue for being deprived of the right to hear from another, due to an objective chill on another's speech. Without ruling that such a theory, or a similar theory based on freedom of association, could not properly be advanced, this Court instead rests its ruling that the AAUP and MESA have associational standing on the Plaintiffs' own noncitizen members' objectively chilled speech….

[3.] The court also allowed plaintiffs' claim that the deportation policy violates the Administrative Procedure Act to go forward. But the court rejected plaintiffs' Due Process Clause vagueness challenge, on the grounds that such "challenges have not been extended beyond the statutory sphere or, at most, to written rules and regulations," and don't apply to the unwritten policies that the plaintiffs are challenging.

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[Eugene Volokh] "Bottom Line Up Front"

I just came across this section heading in a federal filing; an excerpt:

The principle that one should include at the very beginning a quick summary of what the filer is asking for and why is familiar; usually the Introduction or Summary of Argument does that. But this is the first time I've seen it expressly labeled that way, and it turns out to be fairly common at least in federal courts in the Western District of North Carolina, likely because of this Standing Order:

A memorandum of law shall always state the "Bottom Line Up Front" – that is, the introductory paragraph(s) shall: (i) identify with particularity each issue in dispute; (ii) concisely (i.e., in one or two sentences) state why the party should prevail on the issue, directing the Court's attention to what the party believes to be the controlling legal authority or critical fact in contention; and (iii) if applicable, state the remedy or relief sought.

Always interesting to see the slightly different rules and practices (even if just as to labeling) that emerge in different courts.

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[Jonathan H. Adler] Does a "More Honest" Discussion about Antisemitism on College Campuses Require an Honest and Unsanitized Account of October 7?

[A recent blog post at AAUP's Academe is attracting notice for the way it characterizes the October 7 attack.]

A recent post on the Academe blog, published by the American Association of University Professors, is attracting some notice--but perhaps not the sort of notice AAUP would prefer. The essay, "It's Not Too Late to Tell the Truth About Antisemitism on Campus" by Brooke Lober, Eli Meyerhoff, and Emily Schnieder, argues that claims of rampant antisemitism on college campuses are a variant of the "big lie" and "an effort to silence dissent and smear protesters."

Whether American college campuses have a serious antisemitism problem is a subject upon which reasonable people may disagree. There is also reasonable disagreement on when criticism of Israel is evidence of antisemitism, and many reasonable people are justifiably concerned that some universities have responded to anti-Israel protests with measures that unduly restrict free expression on college campuses.

What seems less reasonable is how the authors characterize the October 7 atrocities.  Calling for a "more honest story about campus climate" that considers the "larger context" of the war in Gaza, they characterize October 7 as a "revolt" by "Palestinian militant groups" targeting "the infrastructure of occupation," and suggest that campus protest and activism did not arise until after Israel launched its offensive against Hamas in Gaza.

Here is the full passage:

A better model—and a more honest story about campus climate—would look at the larger context of the war and how it has increased tensions across the board. On October 7, 2023, Palestinian militant groups staged a revolt against the seventeen-year blockade. They attacked the infrastructure of occupation and kidnapped and killed Israelis, among others. As the US and Israeli media dehumanized Palestinian people and repeatedly characterized this politically motivated attack as "senseless violence" or motivated by "antisemitism," they paved the way for Israel's disproportionately harsh retaliation; unsurprisingly, harassment and violence toward Palestinians, Arabs, and Muslims ensued. Israel responded to the attack with a genocidal campaign, while marking their conquered territory with holy Jewish symbols and justifying their assault in the name of collective Jewish safety. It is this violent instrumentalization of Jewish identity, a longstanding project of the Israeli state, that has provoked renewed harassment of Jews around the world. [Emphasis added.]

It seems to me that if the aim is a "more honest" discussion about the campus climate and antisemitism--and the related threat to free expression on college campuses--it might help to provide a more honest and less sanitized description of what occurred on October 7.

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[Eugene Volokh] N.Y. Decision on Showing Required for #TheyLied Defamation Claims Based on Allegations of Sexual Assault

In Friday's decision in Vitagliano v. Weiner, by N.Y. appellate judges Gerald Whalen, John Curran, Donald Greenwood, and Lynn Keane, Vitagliano sued alleging that Weiner had sexually assaulted her; Weiner counterclaimed "for defamation premised on a social media 'story' posted by [Vitagliano] in which she asserted that defendant 'is a rapist.'" Vitagliano tried to get Weiner's counterclaim dismissed early, under New York's anti-SLAPP statute, which is designed to quickly dispose of legally insufficient claims based on speech on matters of public concern. No, says the appellate court:

Initially, we note that the parties do not dispute on appeal that the "counterclaim subject to the motion is an action involving public petition and participation …," i.e., one subject to the protections of New York's anti-SLAPP statutes. Thus, as relevant here, the limited issue before this Court is whether defendant, as "the party responding to the motion[,] demonstrate[d] that the cause of action has a substantial basis in law." …

The court concluded that under New York procedure, a defamation case can proceed (despite an anti-SLAPP motion) if there's a "substantial basis" for the underlying defamation claim, with no need to show "clear and convincing evidence" at that stage of the litigation. And the court continues,

[W]e now consider whether defendant proffered a substantial basis from which to conclude that plaintiff's statement on social media "was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue," i.e., actual malice [which the New York anti-SLAPP statute requires as to all defamation claims on matters of public concern, regardless of whether the target of the statement is a public figure]. Here, we agree with plaintiff that a mere conclusory denial of her allegation that defendant sexually assaulted her would be insufficient to support the conclusion that plaintiff knowingly posted a false statement on social media or did so with a reckless disregard for the truth.

Defendant, however, opposed the motion with a detailed statement recounting his version of the sexual encounter underlying the present litigation, including the specific facts on which he relied for his assertions that plaintiff was not intoxicated at the time and that the encounter was consensual. A reasonable mind could therefore conclude that the differences between the parties' versions of events could not be accounted for by, for example, differences in perception, mistake, faulty memory, or alcohol impairment, but instead that plaintiff knowingly made a false statement, even if such a conclusion is "not necessarily the most probable" in light of all the evidence.

Because of this, Weiner's case can go forward, though if it gets to trial he will then have to show by clear and convincing evidence that Vitagliano's allegations were false (and said with knowledge or recklessness as to their falsehood).

Karen G. Felter (Smith Sovik Kendrick & Sugnet P.C.) represents Weiner.

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[Josh Blackman] Today in Supreme Court History: April 29, 1745

4/29/1745: Chief Justice Oliver Ellsworth was born.

Chief Justice Oliver Ellsworth

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[Ilya Somin] New York Times Symposium on "A Road Map of Trump's Lawless Presidency"

[I was one of 35 legal scholars who took part.]

Donald Trump. (llustration: Eddie Marshall | ALEXANDER DRAGO | UPI | Newscom | Midjourney)

 

Earlier today, the New York Times published a symposium entitled "A Road Map of Trump's Lawless Presidency." Thirty-five legal scholars took part, including myself. Here is an excerpt from the editors' summary:

Times Opinion recently reached out to dozens of legal scholars and asked them to identify the most significant unconstitutional or unlawful actions by Mr. Trump and his administration in the first 100 days of his second presidency and to assess the damage. We also asked them to separate actions that might draw legal challenges but are, in fact, within the powers of the president. And we asked them to connect the dots on where they thought Mr. Trump was heading.

We heard back from 35 scholars — a group full of diverse viewpoints and experiences, including liberals like U.C. Berkeley's Erwin Chemerinsky and Harvard's Jody Freeman; the conservatives Adrian Vermeule at Harvard and Michael McConnell, a former federal appeals court judge who directs Stanford's Constitutional Law Center and is a member of the Federalist Society; and the libertarians Ilya Somin at George Mason University and Evan Bernick at Northern Illinois University….

From all of their responses, we constructed a road map through Mr. Trump's first 100 days of lawlessness, including his defiance of our judiciary and constitutional system; the undermining of First Amendment freedoms and targeting of law firms, universities, the press and other parts of civil society; the impoundment of federal funds authorized by Congress; the erosion of immigrant rights; and the drive to consolidate power.

This road map largely draws on the scholars' words, which serve as bright red warning lights about the future of America….

Not all of our legal scholars saw every Trump action the same way, and one saw the problem as lying more with the courts than with the administration. But there was abundant assent that the president is trying to operate without limits and that the rule of law and especially due process are being profoundly tested and challenged. This guide through the first 100 days is by no means exhaustive but rather reflects legal issues our 35 scholars highlighted repeatedly or with the gravest concern.

Two of my statements made it into the symposium. Here is the first, which gives my overall assessment of the administration's agenda:

They seek a massive increase in presidential power, which if fully achieved would potentially undermine most of the constitutional separation of powers and create an elective monarchy or a quasi-authoritarian state. If they prevail, it would be terrible for the rule of law and liberal democratic values generally. But they can be stopped and hopefully will be.

There is also this on Trump's usurpation of the spending power:

No other modern president has tried this on such an enormous scale. If allowed to stand, it would enable the president to both seize control over hundreds of billions of dollars in federal funds and coerce state and local governments by imposing grant conditions not authorized by Congress. All of this also violates the Constitution — both federalism and the separation of powers.

I expounded on my concerns in greater detail in the similar recent Free Press symposium, which had fewer participants and therefore gave each person more space. For those keeping track, I was also highly critical of Joe Biden's usurpations of the spending power, as with his student loan forgiveness power grab. But Trump's abuses are more systematic far-reaching.

As in the Free Press symposium, there was a lot of cross-ideological agreement between the NY Times participants. For example, I agree with nearly all the comments made by big-name conservative constitutional law scholar Michael McConnell (Stanford) who participated in both symposia. I also agree with the majority of points made by liberal/progressive participants, though by no means all.

The NY Times symposium is somewhat less  ideologically balanced than the FP one. NYT has a large preponderance of left-of-center participants (all but about four or five, by my count, though I could have missed some, because not every participant got quoted), while FP had three conservatives (including two who are very far to the right of me), two progressives, and two libertarians (Jonathan Adler and myself). One possible explanation for difference is that the NYT piece was limited to law professors, while FP featured two non-academic commentators among its total of seven (both conservatives). Lawprofs are, on average, a much more left-wing group than non-academic legal commentators.

Nonetheless, it is noteworthy that, between them, these symposia show a wide range of agreement that Trump 2.0 is engaging in numerous illegal actions and threatening the constitutional system in various ways. And many of these concerns go far beyond the academic left.

There are. admittedly, a few MAGA-friendly legal scholars (or those who back nearly unlimited executive power), represented in the NYT symposium by Harvard law Prof. Adrian Vermeule. But such people are a minority even among non-left wing experts in thfield.

A minority view can, of course, still be right (I hold many minority views myself!). But in this case, it just isn't. The scope and magnitude of Trump 2.0 illegality are too great for any plausible defense.

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[Josh Blackman] The Supreme Court's Order for Supplemental Briefing in Kennedy v. Braidwood and the Reorganization Plan of 1966

[The Reorganization Plan of 1966, standing by itself, is not a statute that could vest "by law" the appointment power authority in the Secretary.]

[This post is co-authored with Professor Seth Barrett Tillman.]

On Monday, April 21, the Supreme Court heard oral argument in Kennedy v. Braidwood Management. On April 25, the Supreme Court requested supplemental briefing in the case:

The parties are directed to file supplemental letter briefs addressing the following question: Whether Congress has "by Law" vested the Secretary of the Department of Health and Human Services with the authority to appoint members of the United States Preventive Services Task Force. U. S. Const. art. II, §2, cl. 2. The briefs should address this Court's decisions in United States v. Hartwell, 6 Wall. 385 (1868), and United States v. Smith, 124 U. S. 525 (1888).

In this case, first the Biden and now the Trump Administration have asserted that the Secretary of HHS has the statutory authority to appoint members of a Task Force. And both administrations have asserted these positions are inferior officers. The government has cited several sources of authority to support its position that the Secretary of HHS has been vested with the power to appoint Task Force members.

One of these sources is Reorganization Plan No. 3 of 1966, 80 Stat. 1610. For example, Secretary Becerra's order appointing members of the Task Force provides:

Consistent with Article II, § 2, cl. 2 of the Constitution, and by virtue of the authority vested in the Secretary of Health and Human Services, including but not limited to Section 6 of Reorganization Plan No. 1 of 1953, and Sections 1 and 2 of Reorganization Plan No. 3 of 1966, the Secretary of Health & Human Services, Xavier Becerra, hereby ratifies the prior appointment of, and prospectively appoints:

The government cites the 1966 Reorganization Plan at pages 7-8 of its merits brief:

In addition, Congress has vested the Secretary with significant supervisory authority over the Public Health Service, which includes AHRQ and the Task Force. In Reorganization Plan No. 3 of 1966, 80 Stat. 1610 (Reorganization Plan), "all functions of the Public Health Service" and of its "officers," "employees," and "agencies" were transferred to the Secretary, § 1(a), 80 Stat. 1610; see Act of Oct. 19, 1984, Pub. L. No. 98-532, 98 Stat. 2705 (ratifying the Reorganization Plan as law). Congress has also empowered the Secretary to "make such provisions as he shall deem appropriate authorizing the performance of any of the functions transferred to him by the provisions of this reorganization plan by any officer, employee, or agency" of the Public Health Service or HHS. Reorganization Plan § 2, 80 Stat. 1610. [bold added]

The Reorganization Plan of 1966 was also raised at the outset of oral arguments:

JUSTICE THOMAS: Before we get to the constitutional problems, what's the statutory authority to appoint the Task Force?

MOOPPAN: So there are two sources of authority, Your Honor. The first is that under the Reorganization Act, the Secretary has the power to exercise all functions and duties of the director, and the director, under 299, has the authority to convene the Task Force.

JUSTICE THOMAS: Isn't that an odd delegation? Normally, it would be the superior or the principal officer who would have the authority who would delegate it to subordinates.

MOOPPAN: Well, it's not just a delegation, Your Honor. The Reorganization Act was in place when 299 was enacted. And so, when Congress passed 299 and said that the director could convene the Task Force, that meant that the Secretary could convene the Task Force.

It seems the government's statutory argument turns on the Reorganization Plan. Several other Justices asked about the Reorganization Plan of 1966.

Mooppan refers to the Reorganization Plan of 1966 as an "Act." But it is not an Act of Congress. So what is the Reorganization Plan of 1966? And does it vest the Secretary with the power to appoint Task Force members? The answer is a bit complicated.

The Reorganization Plan of 1966 was not a statute passed through bicameralism and presentment. Statutes at Large includes this notation:

Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, April 25, 1966, pursuant to the provisions of the Reorganization Act of 1949, 63 Stat. 203, as amended.

"Huh," you might be asking yourself? Basically, the President signed an executive memoranda, and then, he sent a copy to Congress. Congress did not approve it or even vote on it. And that plan was then published in Statutes at Large. This is not Article I, Section 7, Clause 2 bicameralism and presentment. This Plan, at least as things stood in 1966, was not a statute. This is something like the  one-house veto at issue in INS v. Chadha. As we explain below, either House could have vetoed the plan; though this apparently never happened. See Dr. Darren A. Wheeler, Implementing INS v. Chadha: Communication Breakdown?, 52 Wayne L. Rev. 1185, 1215-16 (2006)

The government argues that Secretary Kennedy has statutory authority to appoint the Task Force members under the Reorganization Plan. For that argument to work, the Reorganization Plan must be "law." Why? The Appointments Clause provides that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." But the phrase "by law" means by statute. As Justice Thomas observed in Lucia, "For federal officers, that duty is 'established by Law'—that is, by statute." See generally Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution: Part III, The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 South Texas Law Review 349, 378-80 (2023) (expounding on the  meaning of "by law" and collecting authority).

The 1966 Reorganization Plan, standing by itself, is not a statute. Therefore, the plan could not vest the Secretary with the authority to appoint the task force members "by law."

The inquiry does not end here. The 1966 Plan cites the Reorganization Act of 1949 (Pub. L. 81-109, June 20, 1949, ch. 226, 63 Stat. 203). This statute was passed through bicameralism and presentment. 

Section 3 of the 1949 Act authorizes the President to transmit a reorganization plan to Congress. And Section 6 provides that the plan "shall take effect" and that the plan will permit certain authorized changes within the organization of the executive branch so long as both Houses of Congress do not pass a resolution of disfavor. (See U.S. const. Article I, Section 7, Clause 3 (using "take effect"-language in regard to congressional procedures beyond the ambit of Article I, Section 7, Clause 2.)

Section 5(a)(4) of the 1949 statute imposes an important limitation:

No reorganization plan shall provide for, and no reorganization under this Act shall have the effect of . . . authorizing any agency to exercise any function which is not expressly authorized by law at the time the plan is transmitted to the Congress. [italics added]

The 1949 Act seems to have its roots in a 1939 statute. Reorganization Act of 1939, ch. 36, Apr. 3, 1939, § 6(c), 53 stat. 561, 563. This 1939 statute contains a provision similar to Section 5(a)(4):

No reorganization under this title shall have the effect—(c) of authorizing any agency to exercise any function which is not expressly authorized by law.

We have to give some more thought to whether the 1949 Act would violate the principles of Chadha. On the one hand, the President can make changes that have the force of law, unless Congress disapproves of the law. This process seems to violate principles of bicameralism and presentment. On the other hand, the President cannot increase the power of an agency, so maybe there is no lawmaking going on. Maybe the best way to reconcile these statutes under Chadha is that the 1966 Plan cannot vest the Secretary with any new legal authority that he did not already possess.

We do not think the 1966 Reorganization Plan could invoke the 1949 Act to vest the Secretary with the authority to appoint task members by law. In other words, the Secretary would only have that appointment power if some other statute "expressly authorized by law" that appointment power. The 1966 Plan, read in tandem with the 1949 Act, would not be sufficient.

We would have to do more research, but we found only one relevant decision that addresses the scope of Section 5(a)(4), Copper Plumbing & Heating Co. v. Campbell, 290 F.2d 368, 373 (D.C. Cir. 1961). Here, the court avoided the limitation as it found the agency already had the asserted power.

Appellants refer to the views expressed by the Comptroller General in a letter to the Secretary. The Comptroller General followed the recommendation of the Secretary in the instant listing, but in the letter expressed the opinion that the debarment regulation offended section 5(a)(4) of the Reorganization Act. He reasoned that since this section of the Act precludes a plan which authorizes "any agency to exercise any function which is not expressly authorized by law at the time the plan is transmitted to the Congress," the debarment condition, which had not been adopted by the contracting agency, was unauthorized. But the debarment regulation does not enlarge functions theretofore residing in the agencies. Those functions, insofar as material, included the power to enter into contracts in accordance with relevant statutes. This included the authority by regulation to prescribe appropriate standards for securing compliance with the labor provisions, and this in turn, as we believe, included authority to include the debarment provision. The transfer to the Secretary was a transfer and coordination of authority already reposing within the several agencies.

Assuming this atextual analysis is correct, we do not think the Secretary's purported power to appoint inferior officers was "already reposing within" HHS. Indeed, the Solicitor General cited the Reorganization Plan precisely because this power was not clearly vested elsewhere.

In 1969, William H. Rehnquist, as head of OLC, concluded that:

The legislative history of [Section 5(a)(4)], which originated in the Reorganization Act of 1939, makes clear that it was intended to prevent the President, under the guise of consolidating and rearranging, from actually creating authority in the Executive Branch which had not existed before. DOJ Memorandum: Whether section 3(a) of Reorganization Plan No. 1 of 1969 is in harmony with section 5(a)(4) of the Reorganization Act of 1949, 63 Stat. 205, 5 U.S.C. § 905(a)(4) (Sept. 11, 1969), Exhibit 1, House Subcommittee Hearings on Reorganization Plan No. 1 of 1969 (ICC), Sept. 26, 1969 at 29 (91st Cong., 1st sess.).

In 1980, OLC opined on the scope of Section5(a)(4), which was later codified at 5 U.S.C. § 905(a)(4). OLC observed:

But for the reasons we have given, Executive Order No. 11556 could not have expanded OTP's powers beyond what was granted by statute, and in any event a reorganization may not have the effect of . . . authorizing an agency to exercise a function which is not expressly authorized by law at the time the plan is transmitted to Congress." 5 U.S.C. § 905(a)(4). Thus Reorganization Plan No. 1 of 1977 does not give NTIA any additional statutory authority. Authority of National Telecommunications and Information Administration to Monitor Radio Communications, 4b Op. OLC 400, 402 n. 2 (Feb. 12, 1980) (bold added).

The inquiry still does not stop here. Fast-forward to 1984. The 98th Congress passed a statute that ratified all reorganization plans (Pub. L. 98-532, Oct. 19, 1984, 98 stat. 2705). This statute was passed as part of a legislative response to Chadha. The statute provides:

SECTION 1. The Congress hereby ratifies and affirms as law each reorganization plan that has, prior to the date of enactment of this Act, been implemented pursuant to the provisions of chapter 9 of title 5, United States Code, or any predecessor Federal reorganization statute.

SEC. 2. Any actions taken prior to the date of enactment of this Act pursuant to a reorganization plan that is ratified and affirmed by section 1 shall be considered to have been taken pursuant to a reorganization expressly approved by Act of Congress.

It seems the Reorganization Plan of 1966, though not initially enacted as a statute, should be treated as a statute following the 1984 Act. It appears Congress attempted to engineer full statutory ratification through bicameralism and presentment. But was this attempt at ratification effective? 

Chief Justice John Marshall addressed this issue in U.S. v. Maurice. 26 F. Cas. 1211 (C.C. D. Va. 1823) (No. 15,747). Marshall took the position that where Congress creates a duty to be fulfilled by the Executive Branch or the President, the default is that the President makes use of extant human resources in the Executive Branch. And where Congress intends to authorize the President to make use of new human resources, Congress will either "expressly" authorize "by law" the creation of statutory offices, or Congress will authorize the President to "employ [via employees under contract] such persons as he might think proper." Id. at 1214. Where office-creation was defectively authorized in the first instance, such authorization can be validated, ratified, or regularized by subsequent "legislative recognition" in the form of a statute. Id. at 1215. 

Here, in 1984, Congress did not enact or re-enact the text of the 1966 Plan, and there was no express grant of any power to create new offices. Rather, the 1984 act incorporated the 1966 plan by reference and directed the Executive Branch and courts to treat the 1966 plan "as law." So ratified or not, we are left without any express authority, in any apparent instrument, to create offices, and we are left without any express legislation recognition of an extant office initially created absent valid authorization. Moreover, for Congress to affirm that some extra-statutory document should be treated "as law" is not the same thing as Congress enacting the text of that document into a statute. That might have been Congress's intent, but it is not what Congress actually did. To put it another way, the text of the Appointments Clause demands that "offices" be "established by law," that is, by statute. Here, Congress (at most) authorized office-creation through a legal instrument with direction that that instrument be treated "as law" but not enacted as a statute. Is that sufficient to comply with the "established by law" sub-provision of the Appointments Clause?

Additionally, United States legislative practice has no rich tradition of drafting statutes via incorporation by reference, which is what Congress did here. Indeed, the language used in Section 1 of the 1984 statute, that is, "Congress hereby ratifies and affirms as law," is unique—such language appears nowhere else in the U.S. Code. On the other hand, other courts have upheld similar far-reaching legislation-by-incorporation practices as valid. See Director of Public Prosecutions v Leontjava, [2004] IESC 37 [82] (Keane, CJ, of Ireland) ("[T]he Constitution affords a strikingly wide latitude to the [national legislature] in adopting whatever form of legislation it considers appropriate in particular cases."), https://www.bailii.org/ie/cases/IESC/2004/37.html.

All that leaves a related unresolved issue: What about Section 5(a)(4) of the 1949 Act? Does that limitation remain in force? 

We think the 1949 Act continues to limit the 1966 Plan/Act. The 1949 Congress did not enact that limitation to avoid a Chadha problem. Indeed, legislative vetoes were quite common at the time. Rather, it seems that Congress only wanted the President to rely on pre-existing statutory authorities. 

The legislative history, for those who care to cite it, suggests that all limitations do remain in place. In 1984, the Chairman of the House Government Operations Committee stated this bill was "a technical, nonsubstantive matter which will preserve the status quo." The Director of the Office of Management and Budget agreed. He urged "urge the Congress to act quickly, to avoid disruption of authorities which have been previously transferred in accord with congressional intent." Ratification of Reorganization Plans: Hearing on H.R. 6225, Sep. 20, 1984 at 7 (Letter from OMB Director David Stockman to the Chairman of the House Committee on Government Operations, Sep. 19, 1984).

There are further reasons to see that the limitation remains in place. If the 1949 Act in fact granted the executive such broad, uncabined legislative authority, we think there would be an actual nondelegation doctrine problem: the President could reorganize the executive branch, and grant statutory authority, without an actual statute. Indeed, this power would include the power to appoint inferior officers! At the very least, the major questions doctrine would counsel reading the Section 5(a)(4) as still limiting the 1966 Plan. In that case, we don't think the government's assertion of this authority is sufficient to show the appointment power is vested in the Secretary "by law."

With the Court's request for briefing, this inquiry may be worthwhile to pursue. Indeed, there may be a statutory path to resolve this constitutional question.

The Supreme Court also asked the parties to address "United States v. Hartwell, 6 Wall. 385 (1868), and United States v. Smith, 124 U. S. 525 (1888)." The relationship between these two cases is not obvious. Indeed, these precedents  are hardly part of the received case law canon. The Solicitor General only cited Hartwell in a single paragraph in the reply brief. The Petitioner did not cite Hartwell at all. Neither party cited Smith. We think we see what the Court was inquiring about, admittedly, we are not entirely sure.

The final paragraph of Smith distinguishes that case from Hartwell:

The case of U.S. v. Hartwell, 6 Wall. 385, does not militate against this view. The defendant there, it is true, was a clerk in the office of the assistant treasurer at Boston, but his appointment by that officer under the act of congress could only be made with the approbation of the secretary of the treasury. This fact, in the opinion of the court, rendered his appointment one by the head of the department within the constitutional provision upon the subject of the appointing power. The necessity of the secretary's approbation to the appointment distinguishes that case essentially from the one at the bar. [emphases added]

In Hartwell, the statute required that the Secretary approve of the appointment. In Smith, the statute did not require that the Secretary approve of the appointment. The key point in distinguishing these cases is not whether there is statutory authority to create an office, but whether or not the statute vests, either a principal officer or the President, with the power to appoint a person to the office. If there is no statute vesting appointing authority in the Secretary (or, by implication, in the President), then there is no authority to fill the position. And if there is no authority to fill the position, then the mandatory requirements of the Appointments Clause and the Inferior Office Appointments Clause have not been complied with.

This litigation has focused closely on whether the task force members are "principal" of "inferior" officers of the United States. But the Court's request for supplemental briefing, seems to shift focus to whether any of the appointments of Task Force members in Kennedy v. Braidwood Management, by the Secretary were supported by some statute. Indeed, the Court's focus on Hartwell and Smith may suggest the Court believes only express statutory authority is permissible to validate an exercise of the appointment power by an inferior officer.

If the positions of Task Force members are not filled consistent with the Appointments Clause and Inferior Office Appointments Clause, that is, if members are not appointed under the authority of a statute, then the purported office-holders are not officers of the United States of any stripe, principal or inferior. At most, they would be "employees." And, as a general matter, we do not think employees can exercise the "significant authority" of an officer of the United States. (We made this point during the Special Counsel litigation.) Suche employees  certainly cannot be vested with any sort of "independence" vis-a-vis principal officers and the President Here, and elsewhere, so much turns on whether a person is or is not an officer of the United States.

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[Eugene Volokh] Exit the Dragon

From Magistrate Judge Ray Kent's Order Striking Complaint today in Doe No. 2 v. Clinton County (W.D. Mich.):

Each page of plaintiff's complaint appears on an e-filing which is dominated by a large multi-colored cartoon dragon dressed in a suit, presumably because she is represented by the law firm of "Dragon Lawyers PC © Award Winning Lawyers". See Compl. (ECF No. 1). Fed. R. Civ. P. 12(f)(1) allows a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Use of this dragon cartoon logo is not only distracting, it is juvenile and impertinent. The Court is not a cartoon. Accordingly,

IT IS ORDERED that plaintiff's complaint (ECF No. 1) is STRICKEN. Plaintiff is directed to file an amended complaint, containing the same allegations as the original complaint, without the cartoon dragon by no later than May 5, 2025.

IT IS FURTHER ORDERED that plaintiff shall not file any other documents with the cartoon dragon or other inappropriate content.

See for yourself:

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[Sasha Volokh] Trump's fake emergencies are the real crisis

[My co-authored Washington Post op-ed today: "His vague national security claims chill speech and action far beyond his individual targets."]

I have an op-ed out in the Washington Post today: "Trump's fake emergencies are the real crisis," co-authored with Serena Mayeri (Penn Law) and Amanda Shanor (Wharton). Here's an excerpt:

The Trump administration has doubled down on its refusal to remedy its mistaken deportation of Kilmar Armando Abrego García, a Maryland father, to a notorious prison in El Salvador — despite a federal court order to facilitate his return. This case is one of many recent presidential actions that cloak flagrant violations of core constitutional rights in spurious claims of emergency power.

Alleging an "invasion" or "predatory incursion" of terrorists and foreign criminals, President Donald Trump is removing and imprisoning noncitizens without due process, asserting he is authorized to do so by the Alien Enemies Act. The administration invokes "foreign policy" to seize and detain students, including legal permanent residents, conflating political speech and peaceful protest with "terrorism." Citing "national security," the president has sought to revoke security clearances, order investigations into, and otherwise threaten and punish lawyers, law firms and former government officials who have opposed Trump in court or publicly criticized him.

In each instance, Trump asserts that the courts cannot stop him because, he says, these "emergencies" give him exclusive presidential power under Article II of the Constitution. But his true motive appears to be liberating the executive from all accountability to constitutional law.

The three of us have divergent views on many legal and political questions, but we all agree that the unchecked executive power the president claims poses an existential threat to liberty and constitutional democracy. . . .

As they say, Read the Whole Thing.

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[Eugene Volokh] First Annual Hoover Institution (Stanford) / ASU Law Aspiring Free Speech Scholars Workshop

[Please feel free to forward this to anyone you think might be interested.]

Are you a law student, judicial law clerk, or lawyer hoping to publish your first, second, or third law review article related to free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by May 15, 2025. (This should still be a draft article, not an article that's already published or expected to be published within six months or less. Naturally, as a draft, it need not be entirely complete and polished.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop—planned for early in the Fall—where they can present their papers and get helpful feedback on them. We have funds to pay for transportation and lodging for the selected authors' trips.

We also plan to officially recognize up to three of the top articles among those we review, and possibly give honorable mention to some additional number as well. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you're interested, please submit your draft at http://tinyurl.com/aspiring-free-speech (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document, and please do not include an author's note thanking your advisors and others. We want to review the article drafts without knowing the authors' identities.

Eligibility is limited to people who have so far published two or fewer law review articles. The in-person workshop will take place so long as enough high-quality submissions are received.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn't answered there, please e-mail volokh@stanford.edu.

* * *

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O'Connor College of Law, Arizona State University

[I posted about this in February, when we first announced it, but I thought I'd remind people about it.]

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