Eugene Volokh's Blog, page 130

[Eugene Volokh] Pardoning Corporations (Apropos President Trump's Pardon of BitMEX)

The Hill (Kimberly Wehle) reported yesterday:

On Friday, Trump issued full and unconditional pardons to four individuals and a related cryptocurrency exchange, BitMEX.

BitMEX solicits and takes orders for trades in derivatives tied to the value of cryptocurrencies, including Bitcoin. Last summer, BitMEX entered a guilty plea in a Manhattan federal court for violating the Bank Secrecy Act for having operated without a legitimate anti-money laundering program. Prior to August 2020, customers could register to trade with BitMEX anonymously, providing only verified email addresses.

As it happens, there's a forthcoming Comment by Brandon Stras in the University of Chicago Law Review on "Pardoning Corporations." The Abstract:

Though the Pardon Clause could be interpreted to include or exclude corporate offenses, overlooked history suggests the broader interpretation is the more plausible one. The Clause codified a power that had existed for centuries in England. And corporations were often pardoned at common law—including the Massachusetts Bay Company. This tradition lasted for hundreds of years, and it is the backdrop against which the Framers drafted the Pardon Clause. Even following the Founding, people continued to understand that the pardon power stretched to corporations. Since that time, however, institutional memory has faded.

The President could condition forgiveness on corporate compliance programs or on donations to his political campaign. He could offer pardons to foreign companies to sweeten relations with other countries. He could effectively abolish corporate criminal liability during his terms, at least at the federal level, even for prosecutions initiated by independent agencies. He could pardon his own companies to protect them from prosecution. Or he might even pardon companies that bribed him. Given the sweeping pardon power in Article II, all these decisions fall within the President's discretion. He does not even need to wait for a company to apply.

Some of these consequences are startling, but Congress can limit the pardon power's effects in two ways. First, Congress can refuse to appropriate refunds of pardoned fines. At the time of writing, Congress has not appropriated such refunds for individuals or companies. That decision denies people reprieve from the most common, and often most consequential, punishments imposed on companies. Second, Congress can repeal statutes that impose corporate criminal liability and replace them with unpardonable civil infractions, depriving the President of offenses to pardon.

Some state constitutions might also include a power to pardon companies. Though this account is more tentative, some attorneys could be more effective advocates if they encouraged their corporate clients to apply for pardons. Federal juries convict around 100 companies per year; states impose the rest of the corporate criminal liability. In most states, there is little authority one way or the other, which creates opportunities for good lawyering. This is important because, even if the President never pardons a company again, some state governments might consider doing so. Alaska's Governor already did, and that pardon is unlikely to be alone forever.

Here's a bit about the pre-Revolutionary history of pardons of corporations in England and the American Colonies:

The story begins in 1461. As King Edward IV prepared to take the throne, he believed that his predecessors were illegitimate. Still, few had the appetite to govern as if their reigns did not happen. So Parliament ratified previous executive acts. Included were pardons to "to any Body or Persons Corporate." Going forward, such pardons had "Force" as if "granted by any King in this Realm lawfully reigning." Parliament would write general pardons with similar language for the next two hundred years.

General pardons were an important political tool. They pardoned anyone, or anything, that could have committed a list of crimes. With general pardons, kings could "present themselves as merciful despite an increasingly severe set of laws." The broader public understood general pardons as tokens of goodwill from the Crown and "elements of festivity" during celebratory times. And "the political and religious elite" extracted general pardons as a reward "for various forms of cooperation" with the King.

Take King Charles II, who had to secure support of the "governing elite" after Oliver Cromwell's reign and the English Civil War. Charles II promised that, if he became King, he would offer a general pardon.  As King, he kept that promise, and Parliament enacted the Oblivion Act of 1660. The Oblivion Act made the King's pardon "good and effectual in the law" to all his subjects and "Bodyes Corporate." It excluded no "Bodyes in any manner of wise corporated," listing "Citties Burroughs Shires Ridings Hundreds Lathes Rapes Wappentakes Townes Villages Hamlets and Tythings." Notice the general terms. If any of the entities had committed offenses, they were pardoned.

Cities might feel like an odd fit for the modern pardon power. Today, juries vote to convict companies of crimes, yet "would never dream of punishing a city." At the time, though, there was no legal distinction between municipalities and for-profit companies. Both were corporations. Some of that came down to process. All corporations were born the same ways. They might have pursued different goals, but the law treated them similarly. "In the eye of the law a corporation was a corporation—that was all there was to it."

America inherited corporate law from the English. Even at the Founding, for-profit companies were rare. Corporate law was still "mostly a matter of municipalities, charities, and churches."  These entities are the best analogies available. Given that the Founding generation would not have distinguished municipalities from for-profit companies, pardons of the former clarify whether that generation would have accepted pardons of the latter….

Back to the reign of King Charles II. The next relevant event was twenty years later in his reign. The King was less popular than he had previously been. To consolidate control, he threatened to seize municipal corporations from their officials. His "aim was to control the personnel and therefore the government of the borough and city corporations." With a grip on local government, he could rig "the election of Members of Parliament" and direct national policy.

London was the most important city to control. And it had defied the King's orders by illegally taxing a market that was supposed to be free and circulating seditious petitions. Though city officials committed the crimes, the Crown saw an opportunity and issued a writ to seize the city itself.

Most cities would have buckled under the threat. "Out of over 240 boroughs and other corporations" threatened with seizure "between 1680 and October 1688, only London defended its case up to final judgement." So began The City of London Case.

At trial, London argued that the case had "no defendant" because a corporation could not "sue and be sued." Nor could a city be punished. The city asked, "will the political body be suspended by its neck?" Or must the citizens "hang up the Common Seal?" London instructed the court to prosecute city citizens, who were potentially "liable in their several private capabilities." …

The court inferred from the Oblivion Act of 1660 that cities could commit crimes. If "bodies politic" can "be pardoned," they must be able to commit crimes. Exhibit A was "the general article of pardon," the Oblivion Act of 1660, under which "corporations" had been "pardoned all crimes and offenses." That pardon would be pointless if cities had not already committed offenses. This opinion is the first time a court acknowledged the pardon of a corporation. It shows that English courts accepted that use of the pardon power as part of their law.

London took the opinion at its word and requested clemency. The King conditionally pardoned London: either permit the Crown to veto some of London's elected officials, or lose the charter. Under this deal, the King could effectively control the city without taking its charter. After debate, London's government ultimately refused the to accept the pardon. With the King's conditions refused, London lost its charter. In short order, "the majority of the boroughs and cities in England and Wales hastily capitulated and were induced to surrender theirs." London's experience confirmed that the King could, in fact, pardon corporations. It was no longer a hypothetical listed in acts of Parliament. …

Back in North America, the Massachusetts Bay Company had its own problems. In the 1630s, the Crown sued the company for "[il]legally transferr[ing]" its government to the people inhabiting the colony. The lawsuit ended with a "default judgment ordering the charter to be 'Seized into the King's hands.'" But the colony never handed over its charter. Massachusetts evaded enforcement long enough for the Oblivion Act of 1660 to pardon its crimes, along with all other corporations.

To make that fact clear, Parliament reaffirmed one year later that "no Charter of any Corporation" could be seized for "any act or thing done" before Parliament's first day. Not only were corporations forgiven, but the King also could not seize them for their offenses. Based on these laws, the colony believed it had been pardoned. So Massachusetts asked the King whether he had intended to forgive it, and King Charles II "responded affirmatively, asking in return only that the company stop hanging Quakers." …

Not much later, American treatises noted that the pardon power applies to corporations. Joseph K. Angell and Samuel Ames wrote that the King could "pardon the default" of a "corporation." Theirs was "the first American legal treatise dedicated to corporate law" and "the standard work on corporate law" when it was published. And Joel Prentiss Bishop wrote that "a county," even though it is not "deemed a private person" like "a private corporation," can have penalties "divested by the executive pardon" in an "influential" criminal law treatise, taking it for granted that a private corporation could be pardoned….

And here's more on the one post-Revolutionary pardon the author uncovered:

Whitewater [Engineering Company] convicted in Alaska for the criminally negligent homicide of Gary Stone. Then it applied for a pardon, and state politicians got the ball rolling. One politician wrote to Governor Murkowski that the criminal penalties were "excessive" for "a tragic accident" and "[i]f ever compassion and common sense should prevail, this is such a case.  Another warned that the conviction sends a "chilling message" to companies across the state.  Neither told the Governor that the company owed the state around $250,000.

The Governor pardoned Whitewater with just four days remaining in his term. Though the pardon was unpopular, no one challenged its constitutionality. Everyone seemed to think Alaska law empowered the Governor to make this kind of decision. …

The post Pardoning Corporations (Apropos President Trump's Pardon of BitMEX) appeared first on Reason.com.

[Eugene Volokh] Important New Professional-Client Speech Decision from the Third Circuit

From Veterans Guardian VA Claim Consulting LLC v. Platkin, decided yesterday by Judge Stephanos Bibas, joined by Judges Anthony Scirica and Cheryl Krause:

The marketplace of ideas is not just a metaphor. Many Americans, from journalists to playwrights to therapists, speak for a living. Laws that bar these professionals from earning money on that speech limit their ability to speak and so must survive First Amendment scrutiny. New Jersey recently passed one such law, banning charging for some advice on how to claim veterans benefits. Because this law likely burdens speech, yet the District Court thought otherwise and so denied a preliminary injunction, we will vacate and remand….

The majority opinion began by concluding that professional speech, including paid speech, is likely presumptively protected by the First Amendment:

Professional services delivered by speaking or writing are speech. Veterans Guardian … advises clients about how to claim benefits: what disabilities to claim, what evidence to include, and how to fill out forms. That advice is likely speech. See Upsolve, Inc. v. James (S.D.N.Y. 2022) (distinguishing conduct of filing motions from speech of offering legal advice)….

[And] laws that ban charging for speech burden the right to speak. Supreme Court cases establish this. See United States v. Nat'l Treasury Emps. Union (1995); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991). Common sense agrees. Someone who cannot earn money from speaking has less incentive to speak and so will speak less. Indeed, many canonical examples of protected speech involve professionals speaking for pay: think of novelists, speechwriters, and newspaper columnists….

More importantly (because the matter is less well-settled), the panel concluded that "there is no separate category of professional speech":

Our circuit used to carve out a separate category of professional speech and give it less protection. But seven years ago, in NIFLA v. Becerra, the Supreme Court clarified that there is no separate category of professional speech. With few exceptions, the same First Amendment principles apply when professionals speak to clients as when anyone else talks. That said, NIFLA confirms that lesser scrutiny is warranted where there is "persuasive evidence of a long (if heretofore unrecognized) tradition to that effect." And it preserved two exceptions when regulations of professional speech get reviewed more deferentially: (1) "laws that require professionals to disclose factual, noncontroversial information in their commercial speech" and (2) regulations of "professional conduct, even though that conduct incidentally involves speech."

New Jersey tries to jam its law into NIFLA's second exception by arguing that the law regulates price instead of speech, that it regulates speech incidental to illegal conduct, and that Section (a)(1) is a neutral professional licensing scheme. The first two arguments do not work, and the record is too sparse for us to confidently decide the third.

Start with New Jersey's contention that its law targets only the conduct of charging money. As we discussed above, pricing regulations are not exempt from the First Amendment—restricting compensation to licensed counselors still imposes a financial burden on speech.

Second, Veterans Guardian's speech is not integral to illegal conduct. Because New Jersey reads its law as mirroring federal requirements, it argues that any speech it bans must be integral to breaking federal law. That argument is wrong twice over. For one, Veterans Guardian's speech is not just one step in service of some separately illegal act, unlike the speech involved in soliciting a crime, demanding ransom, or posting a "White applicants only" sign as part of hiring discrimination. Veterans Guardian's speech is the core of what it does.

For another, though New Jersey says federal law outlaws Veteran Guardian's activities, that federal law is equally subject to the First Amendment. Veterans Guardian does not challenge the federal scheme, and we take no position on whether it is valid. But states cannot immunize their laws from constitutional scrutiny by pointing to a federal scheme that may suffer the same constitutional defects. To hold otherwise would let states end-run around the First Amendment.

Finally, New Jersey attempts to frame Section (a)(1), which incorporates federal accreditation requirements, as a neutral licensing scheme regulating professional conduct. Yet we have very little information on how the federal accreditation scheme works or what it covers. The District Court ruled on a different basis and did not address whether the law should be viewed as a professional licensing scheme or whether, as a licensing scheme, it would fit within NIFLA's second exception. We leave it to the District Court to consider those questions in the first instance on remand.

When it does, it should reconsider one more part of its reasoning. It held that New Jersey's law was content neutral in part because the state did not intend to suppress disfavored ideas. But courts judge laws based on their effects on speech, not just on legislatures' purposes or motives. For instance, they usually decide whether a law is content based—and so presumptively unconstitutional—by judging whether it "single[s] out any topic or subject matter for differential treatment."

We take no position on whether this law is content neutral, leaving that to the District Court on remand. But when it does reach that question, its answer should be based on whether the law applies to speech based on its content or topic, regardless of the legislature's good intentions….

The District Court will need to gauge New Jersey's interests and the law's tailoring, and it may need to weigh preliminary-injunction factors other than the merits. Each inquiry is riddled with unknowns.

Start with New Jersey's interests. They depend on how often paid services covered by the law are predatory, how often they are merely useless, and how often they are valuable. The record contains no answers. Nor does it show how big a problem paid consultants are. Though the District Court noted that "benefits consultants and other businesses ha[ve] defrauded veterans of over $414 million," the document it relies on lumps together all sources of fraud, from identity theft to "bogus investment schemes" and "sweepstakes and lotteries." App. 17, 217. In fact, this document lists the eleven most common sources of fraud, but predatory benefits-claiming services are not among them.

The extent of tailoring is also foggy. Neither the District Court nor the parties have discussed whether less restrictive alternatives to Sections (a)(1) and (a)(4) would have achieved New Jersey's interests. And each section raises its own questions that the record does not answer. Section (a)(1) purports to fight exploitation by forcing providers to follow federal law. But how effective is federal law at stopping fraud and incompetence? And at what cost to speech? Section (a)(4) bans paid advice before appeal. The weight of this burden depends in part on whether the appeal is too late to offer some advice. Is it? On remand, the District Court should fill these gaps….

Judge Krause joined the majority but wrote a separate concurrence "with some observations about the review of reasonable professional licensing schemes in the wake of NIFLA"; an excerpt:

On the one hand, NIFLA established that professional speech, as a whole, is not a unique category subject to lesser protections than other protected speech and cautioned against giving states "unfettered power" to impose content-based restrictions on speech "by simply imposing a licensing requirement." Taken to the extreme, the Court observed, states could enact onerous licensing laws that, in effect, "impose invidious discrimination of disfavored subjects," for example, by restricting publishers from printing books by certain authors or lawyers from advocating for clients outside the courtroom—all under the guise of regulating professional conduct….

On the other hand, NIFLA confirmed that more deferential scrutiny continues to apply in the commercial context where there is "'persuasive evidence … of a long (if heretofore unrecognized) tradition' to that effect," and it identified two such situations. The first was "laws that require professionals to disclose factual, noncontroversial information in their 'commercial speech'" …. And the second was for "regulations of professional conduct that incidentally burden speech." …

[The] long tradition of professional licensing schemes in our law dates back well before the Founding, with deep roots in English law. In the Middle Ages, craft guilds, chartered by the monarch, functioned as early licensing authorities, with membership a prerequisite to entering trades like weaving and goldsmithing. As early as 1421, doctors in England petitioned Parliament to exclude unqualified practitioners, and the Royal College of Physicians was established in 1518 to grant licenses and regulate the practice of medicine. Membership in the English Inns of Court, founded in the mid-fourteenth century, ensured the qualifications of those practicing law. And by the seventeenth century, licensing schemes governed the professions of tavern owner, peddler, coach driver, and many more on that side of the Atlantic.

Credentialing practices followed the colonists to early America, where the medical and legal professions were among the first to be licensed and regulated, along with traders, tanners, printers, peddlers, boat pilots, tavern and innkeepers, distillers, and purveyors of liquor. By the early-nineteenth century, licensing schemes expanded to include barbers, boarding house operators, insurance agents, midwives, real estate brokers, steamboat operators, embalmers, horseshoers, undertakers, veterinarians, auctioneers, and pawnbrokers, among many others.

The inevitable challenges to these regulatory regimes gave the Supreme Court opportunity to explain their place in our legal system and to acknowledge their importance. In rejecting a challenge to a medical licensing regime in 1889, for example, the Supreme Court recognized the inherent authority of the states to prescribe regulations to combat "consequences of ignorance and incapacity, as well as of deception and fraud," and to fulfill the government's responsibility "from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely." While the Court has also policed the constitutional bounds of such regulations, particularly after the incorporation of the First Amendment, and as legislatures in the twentieth century increasingly targeted the speech of professionals, it has continued to recognize that states "have broad power to establish standards for licensing practitioners and regulating the practice of professions."

Against the backdrop of this long tradition, it would be anomalous indeed to read NIFLA as an endorsement of heightened scrutiny for all professional licensing schemes. After all, the Supreme Court "does not normally overturn, or [ ] dramatically limit, earlier authority sub silentio," and, as a general rule, we "leav[e] to th[e] [Supreme] Court the prerogative of overruling its own decisions." If anything, NIFLA confirms that lesser scrutiny applies to licensing regimes that "regulate[ ] speech only 'as part of the practice of [a profession],'" and … [makes] made clear that some restrictions of speech, though content based, remain subject to more deferential review as burdens incidental to the regulation of professional conduct….

With its recent grant of certiorari in Chiles v. Salazar, the Court may bring greater clarity, but for now, in the wake of NIFLA, whether a particular component of a licensing scheme imposes a content-based regulation on professional speech subject to strict scrutiny, or "regulate[s] speech only 'as part of the practice of [a profession], subject to reasonable licensing and regulation by the State," must be decided on a case-by-case basis. Compare Billups v. City of Charleston (4th Cir. 2020) (holding the burden on speech was not merely incidental because the ordinance "completely prohibit[ed] unlicensed tour guides from leading visitors on paid tours—an activity which, by its very nature, depends upon speech or expressive conduct"), with Cap. Associated Indus., Inc. v. Stein (4th Cir. 2019) (upholding "UPL statutes [that] don't target the communicative aspects of practicing law, such as the advice lawyers may give to clients" but, instead, "focus more broadly on the question of who may conduct themselves as a lawyer").

Here, as the majority observes, we have little information on the workings of New Jersey's accreditation scheme for veterans benefits counselors, and the District Court ruled on a different basis. We, thus, leave the application of NIFLA in this case to the District Court in the first instance….

Martine E. Cicconi, Kristen Loveland, James E. Tysse, and Caroline L. Wolverton  (Akin Gump Strauss Hauer & Feld) represent plaintiffs.

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[Keith E. Whittington] AFA Statement on Speech Rights of Foreign Nationals

After several high-profile examples of university students having their authorization to study in the United States revoked and of international scholars being turned away at the border, the Academic Freedom Alliance has released a statement on the deportation of foreign scholars and students. There are clearly circumstances in which foreign nationals can and should be expelled from the country, but the administration's actions have had the effect of dampening lawful but politically disfavored speech on American college campuses and pose a serious threat to the international academic community.

From the statement:

Foreign students and scholars who enter in the United States, temporarily or indefinitely, do so on a conditional basis, and if they violate the conditions of their lawful presence in the country they can properly be removed. It is imperative that the permission of foreign students and scholars to enter or remain in the country be revoked only for the proper reasons, which do not include the mere expression of controversial scholarly, political, or social views. If foreign scholars and students are going to be able to live and work in the United States, to express themselves freely in public and to engage in the ordinary activities of scholarship and teaching, they must be confident that their status will not be put at risk by their engaging, alongside other members of the academic community, in the lawful expression of ideas that those with political power happen to find controversial.

We call on American government officials to clearly state that international students and scholars will not be removed from the country simply for engaging in lawful expressive activities, whether personal or professional. We call upon American government officials to clearly state the factual basis and legal rationale when visas are revoked. A climate of uncertainty is itself a threat to the free exchange of ideas on American university campuses. It is imperative that the government not only refrain from removing individuals from the country for exercising First Amendment liberties but also credibly reassure the scholarly community that the immigration laws will not be used to stifle First Amendment protected speech.

Read the whole thing here.

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[Josh Blackman] Harlan Virtual Supreme Court Round of Four

[Ten teams of high school students presented oral arguments on Free Speech Coalition v. Paxton.]

The topic for the 13th Annual Harlan InstituteVirtual Supreme Court competition is Free Speech Coalition v. Paxton. Yesterday, the top four teams presented oral arguments. The Championship Round will be held at the Georgetown Supreme Court Institute on May 1, 2025 between Teams #20601 and 20094.

Round of 4 Match #1

Team #20601 v. Team #20094

Round of 4 Match #2

Team #20133 v. Team #20129

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[Eugene Volokh] Drama and Misgendering at the Imperial Court

From Rozanski v. Rocky Mountain Court System, Inc., decided Feb. 16, 2023 by the Colorado Court of Appeals (Judge Craig Welling, joined by Judges David Furman and Rebecca Freyre) but just recently posted on Westlaw:

The ICRME {Imperial Court of the Rocky Mountain Empire} is a nonprofit organization that serves Colorado's lesbian, gay, bisexual, transgender, queer, plus (LGBTQ+) community. Among other things, the ICRME holds functions and raises funds for related charities. The ICRME is a chapter of the International Court System (ICS) and the International Court Council (ICC).

Each year, members of the ICRME elect a leader for the organization's fundraising endeavors, which include charitable drag shows. The person so elected receives the honorary title of "Emperor" or "Empress." The events surrounding the 2018 election led to this dispute.

Haskett, Brendlinger, Whitley, and Menchaca were on the ICRME's eleven-member Board of Directors (the Board). Norrie Reynolds was a long-time member of the ICRME and a previous Empress. Reynolds and Rozanski were close friends.

Rozanski founded and owns a large retailer and distributor of comic books. {Rozanski uses "they," "them," and "their" pronouns.} As part of their business, they distribute a newsletter to over 120,000 people worldwide. They also distribute a national newsletter to over 10,000 people in the United States. They have profiles on websites such as IMDb and Wikipedia. Rozanski was also an ICRME member. They sometimes participated in ICRME drag shows using the alter ego "Bettie Pages."

On March 22, 2018, two days before the annual election, Reynolds—who is not a party to this appeal—told Whitley that Rozanski was organizing an "anti-gay rally." According to Reynolds, Rozanski's rally would occur during the election at the Capitol Hill United Neighborhoods facility in Denver, which was the polling location for the election. Whitley immediately relayed this information to the rest of the Board in an email. Haskett subsequently called Reynolds, who confirmed what she had reported to Whitley. Reynolds also told Haskett that "she was afraid"; that she was "feeling unsafe for herself and ICRME"; and that Rozanski "had a temper" and "was out to get" Whitley, Menchaca, and Haskett.

That same day, the Board held a closed emergency meeting to address the alleged threat. At Haskett's invitation, the candidates for Emperor and Empress also attended the emergency meeting. During the meeting, Haskett repeated Reynolds' statements about Rozanski's alleged threats to individual Board members. The Board unanimously approved significant changes to the 2018 election process. Such changes included moving the location of the polling station, hiring security, and limiting voting to paying ICRME members.

Without contacting Rozanski regarding the allegations, the Board released a public statement and posted it on the ICRME's website. We will refer to this as the "Public Statement." In the Public Statement, the Board announced the election changes and outlined the alleged threat in the following terms (without identifying Rozanski by name or description):

A concern was brought to the Board of Directors in regards to the safety for people on Voting Day, March 24th, 2018 …. The Board of Directors got information that there was going to be an Anti-Gay Rally on Voting Day ….

Whether this information may be true or not, the Board of Directors must take this matter seriously ….

Rozanski themself republished the Public Statement to about 11,000 people through their Facebook profile and their national newsletter. The day before the election, Rozanski publicly posted that they'd engaged a defamation attorney. On election day, they went to the original location of the voting polls and passed out copies of the Public Statement.

Many ICRME members saw the Board's decision to modify election procedures as a ploy to suppress votes and rig the election. Menchaca exchanged posts and comments with several ICRME members on Facebook. He defended the Board's decision to change the 2018 election process, reiterating his concerns about the risk of violent demonstrations. Menchaca didn't name Rozanski in any of his posts.

The day after the election, the Board had a private conference call with the national leaders of the ICS and ICC. The call was recorded. During this call, Brendlinger made comments about an alleged confrontation between Rozanski and Rob Surreal, one of the national leaders. During the same call, Haskett defended the Board's election changes despite criticism from the national leaders.

Rozanski sued Reynolds for providing false information. They settled with her after she provided an affidavit and compensation for attorney fees, emotional distress, reputational damages, and pain and suffering.

Rozanski subsequently sued the ICRME, as well as Haskett, Brendlinger, Whitley, and Menchaca in their individual capacities. Rozanski brought claims of defamation, civil conspiracy, intentional infliction of emotional distress (IIED), respondeat superior, and aiding and abetting against the defendants.

The court threw out Rozanski's defamation claims:

As a preliminary matter, we accept Rozanski's concession that they're a public figure. Hence, we focus our analysis on whether there's clear and convincing record evidence that the defendants acted with actual malice….

In contending that the defendants acted with actual malice, Rozanski argues that the defendants failed to investigate Reynolds' allegations before issuing the Public Statement. Rozanski maintains that the defendants—allegedly ignoring the prompting of several ICRME members—deliberately chose not to reach out directly to verify or corroborate the allegations. Rozanski asserts that the defendants, therefore, knowingly acted without supporting evidence….

[But] the defendants did have a basis for their statements: they received notice of threats from Reynolds, whom they all knew to be close to Rozanski. This isn't disputed. In addition, Reynolds had been sufficiently respected and trusted within the ICRME to have previously served as its Empress. Whereas the reporter in Burns knew that the sergeant was "frustrated" and "bitter," and that his comments should be viewed skeptically, our review of the present record reveals no similar evidence suggesting that the defendants—at the time Reynolds communicated the alleged threats—had cause for similar skepticism….

[T]he defendants here were [also] acutely time-pressured…. Reynolds communicated the threats on March 22, 2018, only two days before the election was scheduled. Given the complicated logistics of altering well-established election procedures along with the scale of election day, which could involve hundreds of ICRME members, any changes would need to be implemented immediately to take effect before the event on March 24, 2022 [likely should be 2018 -EV]. Additionally, even viewing the evidence in the light most favorable to Rozanski, as we must, the nature of the alleged threats in this case placed heightened pressure on the Board to respond effectively within a short timeframe: the allegations concerned an anti-gay rally on election day at the polling place, which, if true, posed the risk of violence and disorder at a large LGBTQ+ gathering….

Moreover, the tight timeframe here undermines the utility of pursuing the most obvious source of possible refutation—namely, Rozanski, who, for the purpose of resolving this summary judgment appeal, we presume would've denied making the threat. Meaningful investigation, therefore, would've required subsequent inquiries, such as thorough discussions with Rozanski, Reynolds, and several ICRME members; a deliberative balancing of the resulting information, which, based on the record before us, would've been conflicting; followed by consultations with ICS and ICC leadership.

Even if the two-day window afforded time for some of these inquiries, and the defendants negligently failed to pursue them, Rozanski has nonetheless failed to submit sufficient evidence to prove with convincing clarity that the defendants made the statements with actual malice….

The court also rejected Rozanski's claims of intentional infliction of emotional distress based on "misgendering":

To state a claim for IIED by outrageous conduct, a plaintiff must allege behavior by a defendant that is extremely egregious…. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Although the jury ultimately determines whether conduct is outrageous, a court must first determine if reasonable persons could differ on the question….

Rozanski highlights that extreme and outrageous conduct may also "arise from the actor's knowledge that the other is peculiarly susceptible to emotional stress, by reason of some physical or mental condition or peculiarity." They further emphasize that the "conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know."

Rozanski alleges that the defendants knew that Rozanski was susceptible to severe depression and suicidal urges, and that misgendering them would exacerbate these conditions. Yet, Rozanski claims, the defendants recklessly disregarded this and refused to let them present at ICRME events in conformity with their gender identity. Rozanski points to no concrete examples in the record of misgendering at ICRME drag shows and we can find none.

Instead, Rozanski's own affidavit suggests that they're referring to "various events" at "outside court[s]." For example, Rozanski alleges that misgendering occurred through the submission of their "protocol" with the "incorrect gender" at events in Las Vegas, New York, and Colorado Springs. Rozanski explains in their affidavit that "'[p]rotocol' is when a member of an outside court visits a court during coronation. Protocol is a moment of public recognition of title when a member of an outside court is announced to the home court."

Whitley's affidavit further supports the notion that Rozanski's misgendering claims arose under circumstances that were outside the direct control of the ICRME, its Board, or any other defendant:

Related to Mr. Rozanski walking at ICS events or events at other Courts, each event and Chapter has its own protocols that are beyond the control of ICRME. Neither ICRME nor myself have attempted to block or express views related to Mr. Rozanski walking at events as Mr. Rozanski and/or Bettie Pages. As I understand it, ICRME has worked with Mr. Rozanski in an attempt to provide assistance with issues [that] have arisen.

Thus, it appears that the incidents about which Rozanski complains occurred in compliance with other courts' or chapters' rules.

Even if we ignore that possibility and accept Rozanski's allegations as true—that Whitley and the ICRME Board blocked Rozanski's protocol, or otherwise caused it not to be submitted—without more, we fail to see how such conduct goes "beyond all possible bounds of decency" and can be regarded as "atrocious, and utterly intolerable in a civilized community." …

Tiffaney A. Norton and Kristin A. Lillie (SGR, LLC) and Colin C. Campbell and Rachel A. Wright (Campbell, Wagner and Frazier, LLC) represent defendants.

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[Eugene Volokh] School Contractor Allegedly Fired for Complaining About Drag Show for Students in Grades 7-12

[A federal court has allowed the contractor's claim to go forward, denying defendants' motion to dismiss (though of course the facts remain to be ascertained at trial or summary judgment).]

From Monday's decision by Judge Edmond Chang (N.D. Ill.) in Lopez v. Fasana:

[According to the Complaint,] April Lopez worked at Disney II Magnet High School as a chief engineer from October 2021 through April 2023. Although the school takes the name "High School," the school teaches students from Grade 7 through 12. She was not a direct employee of the Chicago Public Schools system; instead, she worked for Eco-Alpha, a subcontractor of Jones Lang LaSalle (the giant real-estate services company).

During the early morning of April 28, 2023, before students arrived at school, Lopez saw a poster for a drag show for students posted in a hallway. She said to one of her colleagues, "I cannot get on board with that." Vice Principal Matt Fasana overheard the comment and "expressed anger at her point of view." Then, later that morning, Lopez approached Fasana and directly "expressed her concern over having a drag show at a school with children as young as 12."

That conversation allegedly triggered a series of reports up the command chain—all on the same day, April 28—eventually leading to Eco-Alpha terminating Lopez's employment….

Lopez sued the school officials, and the court allowed the case to go forward:

Generally speaking, government employers may not retaliate against their employees (or contractors) for exercising their right to free speech. {The parties do not dispute that Lopez is a government contractor and her claim receives the same analysis as government employees.} … To plausibly state a claim for First Amendment retaliation, Lopez must allege that her speech was constitutionally protected, that she suffered an adverse action or that she suffered a deprivation likely to deter free speech, and that the protected conduct was at least a motivating factor behind the adverse action….

If Lopez was speaking pursuant to her official duties, then she has no retaliation claim, because that kind of speech—for First Amendment purposes—is considered to be government speech. If, on the other hand, she plausibly alleges that she was speaking as a private citizen on a matter of public concern, then the First Amendment may be implicated, and the next step of the evaluation is commonly referred to as Pickering balancing. At that step, the Court engages in "a delicate balancing of the competing interests surrounding the speech and its consequences," including whether the employee's interest in her speech is outweighed by "'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'"

[1.] On the threshold requirement, Lopez plausibly alleges that she was speaking as a private citizen, not pursuant to her official duties. On this question, courts consider the context of the speech, including whether the employee engaged in speech "ordinarily within the scope" of her employment, whether the speech was pursuant to government policy or to convey a government-created message, and who was the intended target of the speech. Put another way, did Lopez's not-on-board-with-that comment and the later conversation with Fasana "ow[e their] existence" to her responsibilities as the employee of a government subcontractor?

At the pleading stage, the only answer is no—and clearly so. Lopez was the chief engineer at the school. Nothing in the Amended Complaint suggests that a school engineer's duties include advising or opining on the substance of school programming. So Lopez's speech is not "ordinarily within the scope" of her engineer duties. Nor is there anything in the Amended Complaint hinting that Lopez was speaking pursuant to a school policy or seeking to convey a school-created message—instead, she expressed her own concern about the drag show for students as young as 12. Nor did Lopez connect the concern with her duties, for example, by refusing to work on the set up for the drag show….

Lopez's speech [also] did not owe its existence to her responsibilities as a public employee. It is true that she was in the school hallway and saw the poster while she was at work. But the Supreme Court has held that the test for official-duty-speech is not whether the speech "simply relates to public employment" or—importantly here—"concerns information learned in the course of public employment." … "[T]he mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." …

[2.] [T]he next question is whether Lopez also plausibly alleges that she spoke on a matter of public concern. "Whether an employee's speech addresses a matter of public concern must be determined by the content, for, and context of a given statement, as revealed by the whole record." Generally, when the speech of employees relates to "any matter of political, social, or other concern to the community," then they are speaking on a matter of public concern.

Here, Lopez's comments addressed a public issue: her opinion on what kinds of shows are appropriate for children to view in a school setting addresses a topic of public debate protected by the First Amendment. Indeed, the topic literally is about what should be shown in a public school. It is worth adding that the answer to the public-concern-or-not question does not depend on the viewpoint of the speaker. Consider, for example, if the hallway announcement had publicized the cancellation of a drag show due to parental concerns, and a school engineer expressed her concern to the vice-principal about bowing to that pressure. That speech would just as much touch on a matter of public concern as Lopez's. Based on the limited facts, Lopez spoke on a matter of public concern….

[3.] The final question is whether Lopez's claim survives Pickering balancing. The answer again is yes. Right now, confined to the facts in the Amended Complaint, the scales are tipped entirely in Lopez's favor. Her interest in expressing her opinion on what is appropriate for children to view in a school setting outweighs the needs of the school in carrying out the school system's duties.

Indeed (and not surprisingly), the Amended Complaint contains no allegations at all as to what disruption, if any, was caused by Lopez's speech. Reasonable inferences must be drawn in Lopez's favor, and nothing in the pleading suggests that any students heard her remarks. The overhead comment happened before students arrived. The allegation on the later conversation with Fasana says nothing about anyone else being present for it. There is nothing else about how the comment or the conversation otherwise affected the school day specifically or the school's operations more generally.

At this pleading stage, the Pickering balance is all one-sided in Lopez's favor. It is true that discovery might illuminate more about what Lopez said and more about the effect on the school. The Defendants could then renew their arguments at the summary judgment stage. For now, though, Lopez has more than plausibly alleged a claim for First Amendment retaliation….

And the court concludes that First Amendment protection is so clear (again, assuming all the facts are as Lopez has plausibly pleaded them) that the defendants cannot claim qualified immunity, at least at the motion to dismiss stage.

Seems quite right to me, at least given plaintiff's factual allegations (and the lack, at this stage, of any evidence of substantial disruption). Julie Herrera represents Lopez.

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[Josh Blackman] Today in Supreme Court History: April 2, 1980

4/2/1980: Justice Stanley Forman Reed dies.

Justice Stanley Forman Reed

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[Eugene Volokh] Lawsuit Over UC Berkeley's Alleged Toleration of Anti-Semitism …

[can go forward in part, a federal trial judge concludes.]

From yesterday's decision by Judge James Donato in Louis D. Brandeis Center, Inc. v. Regents of the Univ. of Cal.:

The FAC [First Amended Complaint] alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors. [See below for more details. -EV] The FAC says that these events were perpetrated by students who professed to oppose Zionism, but actually intended to discriminate against Jewish students and professors because they are Jewish. The FAC also alleges that Berkeley failed or refused to enforce its anti-discrimination policies as to its Jewish students and faculty in response to these events.

Taken as a whole, the FAC plausibly alleges disparate treatment with discriminatory intent and policy enforcement that is "not generally applicable." The FAC also plausibly alleges that Berkeley was deliberately indifferent to the on-campus harassment and hostile environment. Consequently, Brandeis's claims under 42 U.S.C. § 1983 for violations of the Equal Protection and Free Exercise Clauses of the U.S. Constitution will go forward, as will the Title VI claim.

It bears mention that the FAC repeatedly alleges that "Zionism is a central tenet of the Jewish faith." This raises concerns about whether Brandeis intends to call upon the Court to determine the articles of faith of Judaism. If so, a serious constitutional problem would arise. The Establishment Clause properly forbids the federal courts from saying what the tenets of a religion are. See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020) ("The First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of … faith and doctrine.'"). This proscription is particularly forceful when, as here, there is genuine disagreement on the matter.

Because the FAC as a whole plausibly alleges that Jewish students and professors were disparately treated because they are Jewish, the Court need not get into the issue now. The "Establishment Clause will be no worse for not having been so tested." It may be that the Court may properly determine whether Zionism is a sincerely held religious belief for some individuals, as circumstances might warrant, but the Court will not determine if it is a central tenet of Judaism.

The 42 U.S.C. § 1981 claim is dismissed. The gist of this claim is that members of the plaintiff organizations who are legal academics cannot contract with certain Berkeley student organizations that adopted a bylaw barring invitations to individuals espousing Zionist beliefs.

Brandeis does not dispute it must show standing to challenge the bylaw in connection with the Section 1981 claim. The complaint does not allege that any academic member has sought to contract with the organizations since adoption of the bylaw, been turned away on account of the bylaw, or has otherwise been put at a contractual disadvantage by the bylaw. The conclusory allegation that the academics "would welcome the opportunity to speak" is not enough. {Allegations that two academic members spoke to unnamed Berkeley student groups in the past does not plausibly allege an injury in fact, because there is not a non-speculative basis for reasonably inferring those unnamed groups adopted the bylaw or the members would speak or attempt to speak at such groups in the future.} …

Here's an excerpt from parts of the Complaint cited by the court (following the sentence "The FAC alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors"):

[3.] On February 26, 2024, a violent student mob succeeded in executing its plan to forcibly shut down a speaking engagement organized by Jewish students at Berkeley. Jewish students who had assembled to hear the speaker, and the speaker himself, were evacuated by police, who were unable to prevent the mob from smashing through glass windows, forcing their way into the event, terrorizing Jewish students, and physically assaulting them. Students screamed for help to the police. The police yelled to each other for help. Both the students and the police were overwhelmed. The mob's anti-Semitic motives were on full display, as when a rioter spat on a Jewish student and called him a "dirty Jew."

[4.] The organizers of the mob—Bears for Palestine, an officially recognized student organization—made no secret of their plans or intent. They openly advertised their plan to shut down the event. UC Berkeley was aware of their plans. Yet, not only did UC Berkeley fail to stop the mob from terrorizing and assaulting Jews, it has failed to take any meaningful action against Bears for Palestine since the riot. To this day, Bears for Palestine and other groups on campus continue to target and intimidate Jewish students, forcing them to conceal their Jewish identity, seclude themselves in their dorm rooms, or take circuitous routes around campus to avoid harassment.

[5.] Starting in early February, Sather Gate, a landmark that leads to the center of the UC Berkeley campus, has been the site of a blockade organized by a registered student organization. The blockade has closed down the middle of the gate completely to foot traffic, leaving only two smaller side paths available to the University at large. Although this blockade impedes all persons equally, Jewish students who have tried to pass have been singled out for harassment. They have been spat at, called ethnic slurs (including "dirty Zionist"), filmed as they pass, and even followed by the organizers of the blockade. Students have been singled out for such abuse if the protestors knew them to be Jewish or if they were wearing outward signs of their Jewish identity, such as Stars of David or yarmulkes. As a result of this intimidation, Jewish students have often stayed home or have been forced to take alternate routes to avoid Sather Gate. The blockade's effects have also been keenly felt by the disabled community. One Jewish graduate student who is blind repeatedly collided with protestors and nearly fell on multiple occasions while trying to make his way through the blockade. The University was repeatedly apprised that Jewish students are being harassed as a result of the blockade and that the disabled community's right to equal access was being denied. While the University committed to ending the harassment and ensure freedom of access through the gate, these issues continue.

[6.] Unfortunately, the harassment and obstruction that began at Sather Gate has spread. As of the filing of this Amended Complaint, student groups have occupied the area outside of Sproul Hall, an administration building on campus that houses the Registrar, Financial Aid, and other offices to which students require access. Because of the occupation, Jewish students report being unable to access the building and being harassed when they try to do so. One Jewish student was physically assaulted when he was observing the occupation. Another Jewish student who was wearing a Star of David was surrounded by masked protestors, who restricted his movement while telling him that "Zionists can go back to Europe." Despite being informed of the harassment, the University has once again failed to act. Indeed, the occupation has grown from 50 tents as of the week of April 21 to up to at least 175 at the time of this filing.

[7.] The post-October 7 eruption of anti-Semitic harassment was not a new development that caught the University off guard. To the contrary, anti-Semitism has been allowed to fester and grow on campus because UC Berkeley has chosen for years to ignore it. In 2016, a Brandeis University research study on anti-Semitism on college campuses found that over a third of students surveyed at UC Berkeley and three other University of California (UC) campuses perceived a hostile environment toward Jews on their campuses. And in 2017, Berkeley ranked fifth in a Jewish publication's list of the 40 worst colleges for Jewish students in the United States and Canada. That study noted that "Berkeley has long been accused of fostering an environment that can be unfriendly to Jews and Zionists." …

[9.] These bylaws—or any other mechanism—that treat Zionists in an inferior manner to non-Zionists are a guise for anti-Semitism. This reality is evident from the post-October 7 harassment of Jews at UC Berkely, where the harassers no longer hide their anti-Jewish animus behind the "it's just anti-Zionism" pretext. Jewish students who want to participate in the organizations that adopted the Exclusionary Bylaw have been constructively expelled or barred from joining. And legal scholars who are ready, able, and willing to speak to these organizations are prohibited from even competing for the opportunity to do so.

[10.] Although the Exclusionary Bylaw purports to target "Zionists," the message, as accurately perceived by Jewish students, is clear: Jews are not welcome. Moreover, while UC Berkeley administrators have publicly acknowledged the fundamentally anti-Semitic nature of the Exclusionary Bylaw, they have continually failed to take action to address it. To this day, student organizations on campus openly exclude Jews under the guise of excluding "Zionists."

[11.] The same anti-Semitic sentiment that animates the Exclusionary Bylaw recently spread beyond the walls of the University and invaded the home of the Dean of Berkeley Law, Erwin Chemerinsky. Less than a month ago, students from Law Students for Justice in Palestine—the same group responsible for drafting the Exclusionary Bylaw—disrupted a dinner Dean Chemerinsky was hosting to recognize and celebrate graduating students. The protestors refused to leave when asked to do so, violating not only University policy but numerous state trespass laws in the process.

[12.] Law Students for Justice in Palestine had planned their protest in advance, making no effort to disguise the anti-Semitic motives when they announced their protest on Instagram. There, they posted the e-mail invitation that Dean Chemerinsky had sent to students together with the dates the dinners would occur and a sign-up link to attend.. The same post featured a gruesome caricature of Dean Chemerinsky holding a blood-soaked knife and fork with the caption, "No Dinner With Zionist Chem While Gaza Starves." The image invoked the ancient anti-Semitic "blood libel" that Jews use the blood of non-Jewish children for ritual purposes. As Dean Chemerinsky acknowledged in response to the image, "I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish." {Law Students for Justice in Palestine ultimately took down the blood-stained caricature, replacing it with an identical image of Dean Chemerinsky, this time holding clean utensils.} As a result of this disruption, Jewish students did not attend additional dinners that Dean Chemerinsky hosted.

[13.] The unmistakable anti-Semitism animating this "anti-Zionist" protest was recognized by the University as well. Defendant Drake, issuing an official statement, recognized that "[t]he individuals that targeted [Dean Chemerinsky's dinner] did so simply because it was hosted by a dean who is Jewish," and explained that the protestors' actions "were antisemitic, threatening, and do not reflect the values of this university." Josh Kraushaar (@JoshKraushaar), X (Apr.11, 2024), https://x.com/JoshKraushaar/status/17.... Rich Leib, Chair of the University of California Board of Regents echoed the same statement and called the students' actions "deplorable." Jaweed Kaleem, 'Please leave!' A Jewish UC Berkeley dean confronts pro- Palestinian activist at his home, LOS ANGELES TIMES (Apr. 10, 2024), https://www.latimes.com/california/st...- pro-palestinian-activists ("The individuals that targeted this event did so simply because it was hosted by a dean who is Jewish. These actions were antisemitic, threatening, and do not reflect the values of this university.").

[14.] As this incident and others make clear, the student groups on campus responsible for this harassment equate Zionists with Jews or, at the very least, do not differentiate between the two. They single out Jewish students and faculty for harassment (even though non-Jews who associate with Jews may also be Zionists), and they target events organized by Jews or Jewish organizations. As the gruesome caricature of "Zionist Chem" made clear, they targeted him not because of his views on the policies of Israel—he is a frequent critic of the current Israeli government and avowed supporter of Palestinian rights. Rather, they targeted him because he is a Jew. Indeed, Law Students for Justice in Palestine—an organizing force behind the protests on campus—offers a "Tool Kit" to its supporters that equates Zionists with Jews, defining Zionism as "[t]he claim that all people worldwide who identify themselves as Jewish belong to a 'Jewish nation … and that this 'nation' has an inherent right to a 'Jewish state' in Palestine."

[15.] The University has acknowledged that what is occurring on campus violates school policy. It has acknowledged that the incursion onto a Jewish faculty member's property violated the student code of conduct. It has admitted that the blockade of Sather Gate violated the school's time, place, and manner restrictions on campus free speech. It has acknowledged that the February 26 rioters targeted Jews, despite the fact that the University's original statement in response to the riot omitted any reference to anti-Semitism. Dean Chemerinsky has even implicitly acknowledged that the Exclusionary Bylaw is anti-Semitic, given his recognition that Zionism is an integral part of Jewish identity for more than 90% of the Jewish students on campus.

[18.] Specific instances demonstrate that Israelis are also victims of the current hate on campus. A group of Israelis who came to observe the Sproul Hall occupation were harassed and physically assaulted. The protestors at the occupation told the Israelis that they should "Go back to Europe!," that "Zionists [should stay] out of Berkeley!" and "We will find the Zionists and kick them out of our classes!" Making clear that they equate Israelis with Jews (as well as Zionists), the protestors also called the Israeli students "Talmudic devils." One of the protestors approached one of the Israeli observers who was holding an Israeli flag, grabbed the flag, and then punched the observer three times in the head. The observer received medical care for his injuries.

[19.] A visiting Israeli professor had her invitation to return and teach at the school revoked given "everything that's happening on campus." The professor indicated that she had heard there was "enormous pressure from the faculty, especially from the furious master's degree students, not to bring anybody from Israel and not to hold courses dealing with Israel." …

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[Eugene Volokh] "The Originalist Case Against Overturning Humphrey's Executor," by Lorianne Updike Schulzke

I was talking to Prof. Lorianne Updike Schulzke (who teaches at Northern Illinois and is visiting this semester at Yale), and she brought up some interesting thoughts on the President's supposed inherent constitutional power to dismiss independent agency officials. She was kind enough to pass along this quick summary; I'm not an expert on the field myself, but I thought it was worth passing along in turn:

Serious Originalists should pause before solidifying President Trump's control over independent agencies by overturning Humphrey's Executor. Yesterday the DC Circuit stayed the reinstatement of Gwynne A. Wilcox of the National Labor Relations Board (NLRB), potentially under the theory that Seila Law throws Humphrey's Executor into doubt.

Yet as I demonstrate in a paper just out in the Connecticut Law Review, Un-fathering the Constitution, the historical grounding of Seila Law in Madison's vision of executive removal is tenuous at best. In fact, more careful historical analysis demonstrates that Madison's vision should not dominate executive removal.

Further, this history shows that the original Congress anticipated a role for itself in limiting the president's removal power. If this history is to have any sway (and Originalism dictates that it should), Humphrey's Executor should be kept intact and greater power over independent agencies should not be granted to the Trump administration.

Congress began creating independent agencies in the 1880s, when they established the Interstate Commerce Commission to regulate railroads. Since then, the President has made top appointments for such agencies, and Congress lower appointments according to Article II, Sec. 2 of the Constitution. Under Humphrey's Executor, the appointees who run these agencies have a quasi-legislative role (being set up by Congress), and therefore the president's ability to control and fire them is limited.

Humphrey's Executor stands in the way of Trump firing heads, especially multi-member heads, of independent agencies. The idea of Humphrey's Executor is that executive removal should be limited, or the president should be limited in his ability to remove heads of such agencies and wield control over them because they were established by Congress to be independent and create something of a check on executive power. The argument on the other side—called the theory of a unitary executive—is that independent agencies are not politically accountable and sweeping them under the executive (and overturning Humphrey's Executor) would make them so. Recently, this theory has gained support from liberal theorists.

Seila Law, decided by the Supreme Court in June of 2020, according to DC Circuit Judge Walker's concurrence filed in the Wilcox case yesterday, casts doubt on Humphrey's Executor. According to Walker, although Seila Law did not "revisit prior decisions" (Slip Opinion at 2), it did decide that independent agencies headed by a single head were removable by the President. By the same reasoning, multi-headed agencies like the NLRB would also be subject to removal.

Yet Seila Law is founded on the reasoning of Myers v. United States, which in turn is founded on the "Decision of 1789." In the Decision of 1789, the First Congress was suppose to have decided that the Constitution vested the power over removal of federal agency officials in the president.

Except that it didn't. Instead, the Myers' Court used Congressman Madison's arguments in favor of executive removal—and the First Congress' ability to set precedent for the Constitution—and interposed them as Congress' reasoning behind a very complicated vote and even more complicated Congressional debate.

A simple review of the votes of the 1789 Congress regarding the president's power to remove the Secretary of Foreign Affairs makes this clear. Twice, the First Congress rejected the language "to be removable by the President"—once by a vote of 34-20, and again by a vote of 31-19. The opposition to this language—and an interpretation of the Constitution vesting unfettered removal in the president—is clear.

After much debate, where some Congressmen expressed grave doubt over both Congress' ability to interpret the Constitution and placing strong removal power in the president, Congress approved the following language: "whenever the said principal officer shall be removed by the President" by a vote of 30-18.

The flip in at least 11 votes does not show that these Congressmen changed their beliefs, but that the language was more acceptable to them. Based on the debates leading up to this vote, a much more likely interpretation is that this language mustered a majority because 1) it did not mean Congress was assuming to itself a precedent-setting role in interpreting the Constitution and 2) the president's removal could be determined by either Congress or the Constitution. In effect, the vagueness of the language allowed for both interpretations.

More, at least a majority of the First Congress anticipated a role for Congress in determining removal of agency appointees. This does not translate into a strong case for executive removal OR a unitary executive, where independent agencies should all report to and be controlled by a president. It does leave open the possibility that independent agencies could report back to Congress rather than the president. Either way, this history is not good grounding for strong executive removal.

The reason why this "decision" has been interpreted as a decision—and one in favor of executive removal—is because of basic assumptions surrounding Madison. He is the presumed father of the Constitution, so his view of the Constitution and here, executive removal, is given more weight. Yet as I detail in Un-fathering the Constitution, this presumption is based more in fiction than fact. Madison does not a father make, especially in the singular sense, for three basic reasons.

First, Madison did not bring about the Constitutional Convention. This has long been known by historians, but not accepted by the public at large. He was a johnny-come-lately to the idea and didn't sign on till after the Annapolis Convention of 1786, likely convinced by Hamilton that it was worth putting his weight behind, which he did.

Second, Madison did not author the Virginia Plan. It was, instead, Virginia's Plan proposed and attributed throughout the Constitutional Convention to Virginia Governor Edmund Randolph who headed the quasi-committee of Virginia and Pennsylvania delegates who arrived on time to the Pennsylvania State House (now called Independence Hall) but before a quorum met. While Randolph held quill in hand, the Virginia Plan was likely dictated or worked out by constitution-writing veteran George Mason, who authored Virginia's famous (and much-replicated) Constitution of 1776. The biggest tell of Madison's non-authorship is shown in him nearly torpedoing the plan on day 1. On May 30, 1787, Madison raised the question of solidifying slavery in the representation calculus, something he would not do if the plan was his own (and certainly shows he did not win on major questions answered by the plan).

Third and perhaps most importantly, as shown by new analytics made possible by the Quill Project, Madison was not all that influential on the Constitutional Convention's floor. He came to the Convention with little national influence: Madison's correspondence shows he wrote to almost no one outside of Virginia before the Convention. Additionally, he was not picked for the Convention's most important committee, the Committee of Detail, tasked to come up with a draft of the Constitution, not asked to chair any of the four committees on which he sat, and though he was #3 in making the most proposals, he as 13th in terms of proposal success.

In the end, Madison emerges from the Convention depressed over his own and the Constitution's chance at success. This because the two proposals he was most passionate about, proportional representation in the Senate and a Congressional veto over state laws, failed. Madison later writes himself out of this funk when he, as Hamilton's #2 pick as co-author after Gouverneur Morris, writes 1/3 of the Federalist Papers. Although these papers are not immediately influential anywhere, they provide debating guides for himself in helping to secure Virginia's ratification.

Without a seat on the Supreme Court nor in Washington's cabinet and after losing his senatorial bid, Madison scrapes by in winning a seat in Congress by making a campaign promise to support a Bill of Rights. He makes good on this promise and cobbles other proposals together in drafting a Bill of Rights, which he champions through Congress thanks to help from Washington, but only just.

In all, Madison becomes influential later as a member of Congress, as the Federalist Papers are published as a two-volume book, and posthumously through his Notes on the Constitutional Convention. But he is not all that influential initially, and cannot faithfully fill the role of "Father of the Constitution." This becomes a problem when he is used to represent other Founders or when his interpretation is used inappropriately as the interpretation of the Constitution, as it has in executive removal jurisprudence, beginning with Myers v. United States.

Madison's views on executive removal in the First Congress should not be the lynchpin upon which executive removal jurisprudence, including Humphrey's Executor, should turn. Instead, the Court and advocates who take Originalism seriously should be careful to weigh other, more diverse sources to determine the public meaning of the president's power to remove agency officials such as those serving on the NLRB.

I'd of course be glad to post contrary arguments on this as well (and I know some of my cobloggers have already written on this).

The post "The Originalist Case Against Overturning Humphrey's Executor," by Lorianne Updike Schulzke appeared first on Reason.com.

[Paul Cassell] Important Questions for Boeing's CEO at Tomorrow's Senate Commerce Committee Hearing

[Boeing CEO Kelly Ortberg should explain whether Boeing continues to plan to plead guilty to conspiring to defraud the FAA, or whether it will attempt to shirk its responsibility for the deadliest corporate crime in U.S. history.]

Tomorrow, Senator Ted Cruz has scheduled a hearing entitled "Safety First: Restoring Boeing's Status as a Great American Manufacturer." Boeing CEO Kelly Ortberg is scheduled to testify about steps Boeing has taken to address safety issues that have arisen in recent years. Foremost among these issues is Boeing's conspiracy to defraud the FAA about the safety of its 737 MAX aircraft—a proven criminal conspiracy which directly and proximately led to two crashes of Boeing 737 MAX aircraft.

Like Senator Cruz, I truly hope that Boeing will, in its next chapter, be restored to its status as a great American manufacturer. But moving onto that next chapter is not possible until Boeing concludes its current chapter. Over the next few weeks, Boeing's leadership will decide how it will conclude the criminal case that has been pending against it for more than four years. Boeing's decision will shed considerable light on whether it truly committed to again becoming a great and responsible manufacturer.

As is well known, Boeing defrauded the FAA about the safety of its 737 MAX aircraft. In January 2021, Boeing entered into a deferred prosecution agreement (DPA) with the Justice Department, in which it admitted the crime. In exchange for the Government's agreement to defer prosecution, Boeing promised to address safety issues connected with the 737 MAX and, more broadly, its internal safety procedures.

I am representing (on a pro bono basis) some of the two crashes victims' family members. As I have blogged about before (see here, here, here, and here), the DPA was concluded in violation of the Crime Victims' Rights Act because the parties (the Justice Department and Boeing) kept that agreement secret from the 346 families who lost loved ones in the two crashes. Indeed, Senator Cruz wrote a powerful amicus brief supporting the families' position that they represented "crime victims" of Boeing's conspiracy. Senator Cruz explained that "Boeing engaged in criminal conduct that defrauded government regulators and left hundreds of people dead in preventable plane crashes.… This is not a mine-run fraud case where some low-level employee lied or committed a technical violation; it is a long-running conspiracy that directly led to some of the worst air travel disasters of the 21st century."

During the DPA's three-year term, Boeing failed to deliver on its promises to improve safety processes. In May, 2024, Boeing's failures led the Justice Department to declare that Boeing had breached its DPA obligations, setting up the issue of how to resolve the pending conspiracy charge. Last summer, Boeing agreed to plead guilty. But after the victims' families objected to the proposed "sweetheart" deal, Judge O'Connor rejected the proposed plea agreement for various reasons. Judge O'Connor then directed the parties to explain how they intended to proceed. Whether Boeing intends to plead guilty to the charge, go to trial, or try to do something else is currently pending.

During the last week, news reports have suggested that Boeing is now lobbying the Justice Department to cut some kind of new deal. According to these reports, Boeing wants an even sweeter deal in which it would not have to even acknowledge that it committed a crime, much less that its senior leadership engaged in a "long-running conspiracy that directly led to some of the worst air travel disasters of the 21st century." If these reports are true, Boeing is now seeking to shirk its responsibility for its past crime and simply jump to the next chapter in its corporate history.

Following these reports that Boeing was waffling on its previously expressed plan of pleading guilty, the judge handling the case (Judge Reed O'Connor in the Northern District of Texas) sua sponte set a trial date in June to finally resolve the case.  Boeing is, of course, free to pursue its own interests as it sees them. But it is important to highlight that Boeing seems to want to have it both ways—one the one hand, appearing to be contrite about causing the crashes, while seeking to skate through the criminal justice system without admitting its guilt on the other.

For example, last summer, at another Senate hearing, outgoing Boeing CEO Dave Calhoun turned to apologize directly to the family members in the gallery who lost loved ones in Boeing crashes and said:

I would like to speak directly to those who lost loved ones on Lion Air Flight 610 and Ethiopian Airlines Flight 302. I want to personally apologize, on behalf of everyone at Boeing. We are deeply sorry for your losses. Nothing is more important than the safety of the people who step on board our airplanes. Every day, we seek to honor the memory of those lost through a steadfast commitment to safety and quality.

This made for good theater—while the cameras were rolling during Calhoun's testimony. But Calhoun's statement appears to have been carefully crafted to avoid acknowledging the full scope of Boeing's crime. A few lowlights are worth recounting, which are all clearly established in an earlier congressional report, internal Boeing emails, an SEC investigation, and Boeing's own admissions.

Boeing's conspiracy involved its Chief Test pilot and others who deceived the FAA into believing that there was no need to include information about a new, powerful software system on the 737 MAX (called MCAS) because MCAS could only activate during
rare situations—not during routine flight operations. By concealing MCAS's expanded operational scope from the FAA, Boeing defrauded the FAA and obtained a low-level (less rigorous level) of training for pilots transitioning to fly to the new 737 MAX aircraft.  And pilots flying the 737 MAX aircraft were not given relevant information about the scope of MCAS and how to respond to improper MCAS activation—which could produce a crash.

Tragically, this was no mere theoretical possibility. On October 29, 2018, Lion Air Flight 610, a Boeing 737 MAX, crashed shortly after takeoff into the Java Sea near Indonesia. All 189 passengers and crew on board died due to improper MCAS activation, which the pilots did not respond to because they had not been trained in proper responses. After the Lion Air crash, Boeing investigators quickly identified MCAS as the cause. But rather than be forthcoming about what had  happened, Boeing attempted to focus attention on the foreign pilots as the accident's central cause. However, they did not disclose that one of Boeing's own test pilots in late 2012 had failed to recover from uncommanded MCAS activation in a flight simulator. This was a fundamentally important event that Boeing chose not to share with the FAA or its MAX customers.

While Boeing knew the deadly truth about MCAS, it concealed that truth from pilots and the public. For example, on November 13, 2018, then-Boeing CEO Dennis Muilenburg appeared on the FOX Business Network and claimed that Boeing had been "very transparent on providing information," the MCAS procedure was already "part of the training manual," and the "737 MAX is a very safe airplane." These were false statements—all designed to keep Boeing's stock price from declining further and to buy time for Boeing's engineers to continue working behind he scenes to fix the MCAS problem. In other press releases, Boeing failed to mention that it had identified an ongoing "airplane safety issue" associated with MCAS  and that it feverously working on a planned software redesign. Indeed, Boeing did not mention MCAS at all. Instead, at the specific direction of CEO Muilenburg, Boeing lied to the world, saying that "[a]s our customers and their passengers continue to fly the 737 MAX to hundreds of destinations around the world every day, they have our assurance that the 737 MAX is as safe as any airplane that has ever flown the skies."

A stunning example of how Boeing hid the truth is how it refused to answer pointed questions from Ethiopian Airlines pilots (information that the capable legal team I am working with pried out of Boeing through civil discovery). Shockingly, on December 1, 2018, the Ethiopian Airlines Head of Flight Operations emailed Boeing with three questions from the group's pilots about its directions to pilots in the event of uncommanded and erroneous MCAS activation. Senior Boeing officials declined to answer two out of the three questions. If Boeing had responded to each of the questions instead of refusing to answer them, the pilots' ability to respond to the situation it described would have been full explained, likely preventing the crash of flight ET 302 on March 10, 2019 … and saving 157 lives. But answering the questions would have revealed the truth about the serious MCAS problem—imperiling Boeing's stock price.

At the Senate Commerce Committee hearing tomorrow, I hope that the Senators will explore these questions.  The key issue now is whether is Boeing still apologizing and willing to admit it criminally caused 346 deaths? If so, how does it explain recent news reports that its lawyers are working behind the scenes to cut another deal that would avoid any accountability for these losses? Has Boeing considered the devastating harm that it will cause to the 737 MAX victims' families if it manages, through high-powered lawyering and back-room deal cutting, to avoid pleading guilty to its deadly crime?

Perhaps such a deceitful maneuver will lead to some short-term advantage. But in the long run, such an outcome would signal that Boeing will do whatever it takes to avoid admitting a mistake, even a deadly one. That path does not seem calculated to return Boeing to the status of being one of America's great manufacturers. The Senators holding tomorrow's hearing should ask CEO Ortberg whether he plans to have his company admit in court the deadly crime it has committed.

Update: I changed the punctuation in the subtitle.

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