Eugene Volokh's Blog, page 169

[Josh Blackman] President Trump's Removal Letter of NLRB Member Gwynne Wilcox

Shortly after President Trump removed NLRB Member Gywnne Wilcox, I wrote that the Supreme Court will not repudiate Humphrey's Executor. Now, having read Trump's removal letter, the Court may not have to.

Wilcox has moved for expedited summary judgment in D.D.C. on the same schedule as a preliminary injunction. In a declaration, Wilcox states that Trump did not "justify my removal on the ground that I committed any neglect of duty or malfeasance in office." The motion includes an exhibit I had not yet seen: President Trump's removal letter.

The letter offers two paragraphs to explain the removal. I see at least one passage that could rise to the level of "neglect of duty or malfeasance in office." Trump stated:

In my judgment, Members Wilcox and General Counsel Abruzzo have adopted a host of decisions that have improperly cabined employers' rights to speak on the subject of unionization, raising serious First Amendment concerns about the censorship of important speech. Several such decisions were issued on the eve of the new Administration. They have also issued decisions that, in my judgment, have vastly exceeded the bounds of the National Labor Relations Act. To take just one example, they supported a new joint employer rule—a rule that courts then invalidated and the Board seemingly acknowledged could not go forward.

Trump alleges Wilcox's may have violated the Free Speech Clause, exceeded the statutory authority of the agency, and proposed a rule that was declared unlawful by courts. To be sure, Wilcox would argue that her actions were consistent with the Constitution and the NLRA, and the courts were mistaken. But the President has the duty to take care that the laws are faithfully executed. I would think that obligation entails the power to decide that someone in an agency has violated the Constitution, or at least came close to violating it.

The last sentence of the letter states, "you are removable with or without statutory cause by the President." Trump may argue these steps triggered a for-cause removal. (The statute also requires a notice and hearing before removal; I am reasonably confident that the Court would not uphold these sorts of dilatory procedural requirements.)

Seila Law did not have occasion to define what "neglect of duty or malfeasance in office" means. However, Judge Griffith's concurrence in PHH v. CFPB did address these terms. He wrote:

My colleagues debate whether the agency's single-Director structure impermissibly interferes with the President's ability to supervise the Executive Branch. But to make sense of that inquiry, we must first answer a more fundamental question: How difficult is it for the President to remove the Director? The President may remove the CFPB Director for "inefficiency, neglect of duty, or malfeasance in office." After reviewing these removal grounds, I conclude they provide only a minimal restriction on the President's removal power, even permitting him to remove the Director for ineffective policy choices.

…

The INM standard provides three separate grounds for removal. Although the standard may seem to be a unitary, general "for cause" provision, the Supreme Court has clarified that these three grounds carry discrete meanings . . .  Moreover, Congress has enacted other statutes that include only two of the three INM removal grounds, indicating that each term bears a distinct meaning. For instance, weeks after the Court decided Humphrey's Executor, Congress added a removal provision to the National Labor Relations Act, but it narrowed the INM standard by eliminating "inefficiency." See ch. 372, § 3, 49 Stat. 449, 451 (1935) (codified at 29 U.S.C. § 153).

Turning then to each basis for removal, "malfeasance" was defined as "the doing of that which ought not to be done; wrongful conduct, especially official misconduct; violation of a public trust or obligation; specifically, the doing of an act which is positively unlawful or wrongful, in contradistinction to misfeasance." 6 The Century Dictionary and Cyclopedia 3593 (Benjamin E. Smith ed., 1911).10 "Neglect of duty" meant "failure to do something that one is bound to do," a definition broadly echoed by courts and dictionaries alike. See A Law Dictionary 404-05, 810 (Henry Campbell Black ed., 2d ed. 1910).

The NLRA does not include the standard of "inefficiency," as did the Dodd-Frank Act. Judge Griffith noticed the contrast:

Elsewhere Congress has elected to provide greater protection. For example, only weeks after Humphrey's Executor Congress chose not to include "inefficiency" as a ground for removal in the National Labor Relations Act. See ch. 372, § 3, 49 Stat. 449, 451 (1935) (codified at 29 U.S.C. § 153) (permitting removal "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause").

If the terms "malfeasance" and "neglect of duty" can be construed broadly, then I think the grounds that Trump identified could meet the standards of for-cause removal. Maybe Humphrey's Executor will live on, as a ghost.

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[Josh Blackman] A Very Different Constitutional Immunity Amendment

Today, Acting Deputy Attorney General Emil Bove instructed the Acting U.S. Attorney for SDNY to dismiss the indictment against New York City Mayor Eric Adams without prejudice. This decision was made without regard to the "strength of the evidence or the legal theories on which the case is based." Rather, the ADAG found the prosecution has "improperly interfered with Mayor Adams' campaign in the 2025 mayoral election." Moreover, Bove wrote that "the pending prosecution has unduly restricted Mayor Adams' ability to devote full attention and resources to the illegal immigration and violent crime that escalated under the policies of the prior Administration."

Both of these rationales only make sense so long as Adams is in office. If he loses re-election, then both of these rationales drop out. Importantly, a former mayor is no longer of use of the executive branch. Adams can then be recharged. The memo states that the confirmed U.S. Attorney can review the matter following the November 2025 election. In other words, the Trump-appointed prosecutor can decide whether to re-indict Adams based on the outcome of the election. Presumably, if Adams loses election, he will be indicted. Or he might be pardoned. But if Adams wins re-election, he will not be indicted.

Critics have cited this decision as yet another example of lawlessness by the Trump Administration. I approach the situation differently. In fact, this memorandum crystalizes something I have been toying with for some time.

There was a time when an indicted elected official would immediately resign in shame. The stigma of holding office in the face of a criminal indictment was too great. Today, that stigma is long gone. Politicians now routinely serve while under indictment. George Santos did not resign, but was expelled. Senator Robert Menendez did not resign until he was convicted. Mayor Adams has not resigned, and apparently made the right judgment. Relatedly, Donald Trump ran for President, successfully, while under several indictments.

These politicians have argued, fairly or unfairly, that the indictments are partisan witch hunts. And at least to some degree, these politicians have maintained some popular support. Their supporters agree that politics went into their prosecutions. Indeed, President Biden said as much about the prosecution of his son Hunter. Who is the ultimate arbiter of these sorts of crimes? I would wager it is not the jury. Rather, it is the voters.

This dynamic reflects the Texas "forgiveness doctrine." Under that doctrine, an official cannot be impeached for conduct that was known when the official was elected to his current term. In effect, the voters forgave the official for his transgressions. Trump was convicted by twelve Manhattanites, but was acquitted by 77 million voters.

I would propose a 28th constitutional amendment that would overrule Trump v. United States, at least in part, but would extend immunity far more broadly. In short, federal and state elected officials can be indicted while in office, but cannot be tried for those indicted offenses until after they no longer in that elected office. All applicable statutes of limitation would be tolled while the official remains in office.

There are several options. First an indicted elected official can resign, in which case he can be tried immediately. Second, the indicted elected official can be impeached, removed, expelled, recalled, or whatever process is available under law, and then tried immediately. Third, the indicted elected official can choose to serve out his term, and not run for re-election; when his term concludes, he can be tried. Fourth, the indicted elected official can run for re-election; if the voters re-elect him, then he cannot be tried until he no longer holds that position. In effect, this amendment would eliminate all immunity for indictments, but grant temporary immunity against trials for current office-holders.

I can already hear the howls! Josh, how can you do this?! Indicted officials would have every incentive to stay in office so they do not face a criminal trial. And they could use the powers of their office to stay in power to forestall a criminal trial. Indeed, the politician can violate election laws as a means to secure their re-election, and those offenses could not be subject to a criminal prosecution.

I am aware of all of these costs. But there are benefits. I think Lawfare has wounded our criminal justice system in ways that are difficult to quantify. When a politician is indicted, the automatic assumption is that politics played a role in the process. Under this amendment, the power of  Lawfare would be blunted. All a prosecutor could do is lay the facts at the elected official's feet. The elected official can choose to rebut or address the facts however he wishes, and potentially even incriminate himself further. But it would be the voters to decide the allegations are serious enough to deny the candidate another term. This is the real grand jury.

Moreover, the ability of a popular politician to maintain his seat in government may be more important than whatever marginal gains come from a criminal prosecution. I think this dynamic was true for Trump. The allegations in the New York indictment were beyond trivial. Voters simply did not care. A similar argument could be made for the never-ending prosecution against Israeli prime minister Benjamin Netanyahu, who holds his governing coalition together by the tightest margins in a time of crisis.

Maybe this idea is ahead of its time. At least for the next four years, prosecutions of Republican elected officials will likely decline, while prosecutions of Democrats elected officials will likely increase. And four years afterwards, the trend may reverse. This proposal would make it difficult for the incumbent administration to lock up perceived political enemies. The voters can keep them in office. There might be a benefit if elected officials can face the voters before facing the jury. This amendment would create something of a middle-ground. Prosecutors can make charges, and the voters can decide what to do.

Ultimately, if the person leaves office, the criminal trial will await it is still deemed a valid exercise of prosecutorial discretion. Most charges against politicians are really offenses of the moment, that few people will remember years later.

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[Orin S. Kerr] New Draft Article: The Two Tests of Search Law

I recently posted to SSRN a new draft article, The Two Tests of Search Law: Reconciling Katz and Jones. Here's the abstract:

Fourth Amendment law has two "search" tests: The Katz privacy test and the Jones property test. Lower courts don't know what the difference is between them, however, or whether the Jones test is based on trespass law or the mechanics of physical intrusion. The result is a remarkable conceptual uncertainty in Fourth Amendment law. Every lower court recites that there are two search tests, but no one knows what one test means or how it relates to the other.

This Article argues that the Jones test hinges on physical intrusion, not trespass law. Jones claimed to restore a pre-Katz search test, and a close look at litigation both before Katz and after Jones shows an unbroken line adopting an intrusion standard and (where it has arisen) rejecting a trespass standard. This understanding of Jones is not only historically correct, but also normatively important. How we understand Jones tells us how to understand Katz. The intrusion approach offers an appealing interpretation of both tests that may prevent Katz's rejection by a Supreme Court otherwise inclined to overturn it.

You can download the draft here.  This is just a draft, so comments and suggestions are very welcome.

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[Eugene Volokh] Race Discrimination/Harassment Lawsuit Against Seattle Related to Its "Race and Social Justice Initiative" Thrown Out

From Judge Jamal Whitehead's opinion today in Deimert v. City of Seattle(W.D. Wash.):

It is unlawful for an employer to discriminate against any employee because of their race. Recognizing the stubborn and pernicious effect of racism against minorities, many employers have adopted Diversity, Equity, and Inclusion ("D.E.I.") initiatives to combat discrimination and harassment in the workplace.

Plaintiff Joshua Diemert, a white man, alleges that his employer, Defendant City of Seattle ("City"), discriminated against him because of his race. He argues that the City's Race and Social Justice Initiative ("RSJI")—the City's D.E.I. program—created a hostile-work environment by "infusing race into all City functions" and "reduc[ing] [him] to an embodiment of his race."  He also alleges the City retaliated against him when he opposed the supposed harassment.

Controlling precedent makes clear that the legal protections against workplace discrimination apply with equal force regardless of the plaintiff's race. Yet we must acknowledge what history and common sense tell us: instances of discrimination against the majority are rare and unusual. Diemert does not present that rare and unusual case here. Contrary to his claims, D.E.I. programs aimed at addressing racial inequalities against Black people and other minorities are not by their very nature discriminatory against whites. And while it is apparent that Diemert personally rejects the RSJI, as is his right, the details he alleges about its discriminatory effect are not so objectively severe or pervasive as to create a racially hostile-work environment against white people in general or him in particular. The same is true about the sweeping claims Diemert makes about his co-workers' and supervisors' alleged race-based conduct, which lack specificity and factual support. Put plainly, more is required of Diemert under the law to demonstrate an unlawful hostile-work environment.

Because Diemert's claims do not stack up against the time-honored tests for proving unlawful employment discrimination and retaliation, the Court must grant the City's summary judgment motion and dismiss Diemert's case.

The opinion is over 12,000 words long, and I can't fully analyze it now; you can read it its entirety here. But here's a short excerpt that rejects Diemert's claim that the initiative created a racially hostile environment for him:

Diemert argues that the "City's [RSJI] … la[id] the foundation for all the racial harassment … [he] would face." It's clear that Diemert found RSJI messaging incorrect and offensive: he testified that he believes white privilege does not exist and is an "incorrect stereotype"; that it is offensive to state that the United States was built on a system of white supremacy; and that it is offensive to state that it is not appropriate to be color-blind when it comes to race. But the Court rejects the notion that the RSJI and programs like it are inherently racist, as Diemert suggests.

The claim that efforts to address racism in the workplace—such as D.E.I. initiatives—are themselves racist presents a striking paradox. According to their proponents, these programs aim to promote fairness and inclusion by acknowledging and addressing racial disparities—they are designed to ensure that all individuals have access to opportunities. Critics, however, argue that explicitly focusing on race or addressing racial inequalities perpetuates division and unfairness. For them, the cure is worse than the disease. The tension between these views underscores the complexity employers face when talking about race and equity.

While such conversations may prompt discomfort or spark debate, they do not necessarily violate anti-discrimination laws. Multiple courts in recent years have reached the same conclusion. Quite the opposite, many courts have held that anti-discrimination trainings play a vital role in preventing workplace discrimination. The Supreme Court has held that Title VII's "primary objective was a prophylactic one." Trainings, courts have recognized, further Title VII's primary goal. Indeed, in line with Title VII's "basic policies of encouraging forethought by employers," the Supreme Court crafted the Faragher-Ellerth affirmative defense, allowing employers to avoid liability for supervisory harassment by taking a proactive approach to harassment prevention, including by implementing training. These training programs are needed because racial discrimination and inequality are present-day problems, not problems of the distant past. Against this backdrop, the real threat to equality in the workplace is not the effort to expose and address racial inequalities, but a resistance to doing so.

Because the Court finds that D.E.I. and anti-discrimination trainings are not per se unlawful, Diemert's belief that such trainings constitute an illegal employment practice is viable only if he shows that the RSJI trainings—in content, implementation, or context—harassed him personally on account of his race. Diemert makes sweeping allegations about the effect of the RSJI, but as explained below, he is short on details about how it transformed his workplace into a racially hostile environment for him and other white people.

For instance, Diemert argues, "[t]he City designed the RSJI as a policy and system that would 'lead with race,' 'center People of Color,' 'de-center whiteness,' and 'prioritize the leadership of Black, Indigenous, and People of Color.'" He takes issue with a definition of "white supremacy" culture provided in RSJI materials, which states among other things that "[t]he culture of white supremacy perpetuates the belief and legitimizes the practice of treating people of color as inferior and white people as superior." He argues that he was not the only white employee who found the RSJI trainings to be "divisive" to the extent they "focus on our differences vs. on our similarities[.]" Beyond these general critiques, he provides no other details about the content of the RSJI trainings….

RSJI trainings no doubt contained statements about race. But exposure to material that discusses race does not by itself create an unlawful hostile-work environment. "Training on concepts such as 'white privilege,' 'white fragility,' implicit bias, or critical race theory can contribute positively to nuanced, important conversations about how to form a healthy and inclusive working environment." But Diemert equates acknowledgement of institutionalized racism and implicit bias—concepts recognized by many courts— with personal attacks. Not so. Passive exposure to these concepts cannot reasonably be construed as a threat to Diemert's safety or well-being or an impediment to his job. Put differently, these trainings in no way interfered with the terms and conditions of Diemert's employment. Comparing diversity trainings that use terms like "'racial bias,' 'white man's privilege,' and 'white man's guilt,' and address topics such as systemic racism, oppression, and intersectionality … to true hostile work environments … trivializes the freedom protected by [antidiscrimination laws]."

On this record, a reasonable juror could not find that the RSJI created an objectively hostile-work environment. Whether comments made by Diemert's co- workers and supervisors created an actionable hostile-work environment is a different inquiry that the Court explores below….

Diemert alleges that comments made by his co-workers during the RSJI trainings and at other times subjected him to a hostile-work environment. Diemert points to a collection of statements over the years:

HSD employees expressed their opinion that white people do not experience racism. During a training in 2019, an RSJI trainer stated, "the real truth is that all white people are cannibals[,]" "racism is in white people's DNA[,]" and "white people are like the devil." Co-workers "attacked" him about a comment he made in response to a post about CRT on the HSD SharePoint page. In 2019 and 2020, Said referred to Diemert as a "colonist" and claimed he was to "blame for all injustices in the United States." Dkt, No. 69 ¶ 47. In February 2020, Said "physically accosted [Diemert and] got in [his] face," and Said accused Diemert of reporting him for fraud because of "white privilege."

Whether this conduct amounts to severe or pervasive racial harassment from which a reasonable juror could conclude Diemert's work environment was objectively hostile depends on the circumstances. This is because "'[n]ot every insult or harassing comment will constitute a hostile work environment.'" "'[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)' will not trigger Title VII's protections." "The standard for judging hostility is meant to 'ensure that Title VII does not become a 'general civility code.'" And "properly applied, this standard 'will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'"

Diemert's allegations fall short of the mark. The Ninth Circuit has deemed much harsher comments and conduct not enough to create a hostile-work environment. See e.g., id. (no hostile-work environment when employer told male plaintiff that he was "in a female job related environment," suggested plaintiff should "look for other employment in cooking in the future," and told plaintiff he "might want to do something with cooking for work."); Henry v. Regents of the Univ. of Cal., 644 F. App'x 787, 788–89 (9th Cir. 2016) (no hostile-work environment when "noose incident" was deemed an "isolated incident[ ]" and when plaintiff failed to show "racial motive behind the noose … or that the noose was directed at him personally."); Harris v. Sutton Motor Sales & RV Consignments Corp., 406 F. App'x 181, 182–83 (9th Cir. 2010) (no hostile-work environment when plaintiff was called a "nigger" two or three times in the same year); Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 638 (9th Cir. 2003), as amended (Jan. 2, 2004) (no hostile-work environment when plaintiff was accused of having a "typical Hispanic macho attitude" and told he should take a job in the field because "Hispanics do good in the field."); Manatt v. Bank of Am., NA, 339 F.3d 792, 795 (9th Cir. 2003) (no hostile- work environment when Asian plaintiff overheard her coworkers laughing and saying "China Man," pulling "their eyes back with their fingers in an attempt to imitate or mock the appearance of Asians," and referring to plaintiff as "China woman."); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1107 (9th Cir. 2000) (no hostile-work environment when a supervisor called female employees "bitches," "castrating bitches," "Madonnas," "histrionics," and "Regina" in the plaintiff's presence.); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1031–36 (9th Cir. 1990) (no hostile-work environment when employer posted a racially offensive cartoon, made racially offensive slurs, targeted Latinos when enforcing rules, provided unsafe vehicles to Latinos, did not provide adequate police backup to Latino officers, and kept illegal personnel files on plaintiffs because they were Latino). The objective severity of the comments alleged by Diemert pales in comparison to that of the statements and conduct in these cases.

The context in which statements are made also matters. At least some of the comments that Diemert takes issue with were made during RSJI trainings. Racially charged comments made in this setting, while still potentially harmful, are better framed as attempts to express perspectives or challenge ideas within the training's scope. Such comments made in the presence of a skilled facilitator can be addressed constructively, turning the moment into a learning opportunity, not a personal attack. This is very different than comments made, for example, on a production room floor that serve no educational purpose.

Even viewed cumulatively, comments about Diemert being a "colonist" or "white people being cannibals" were too infrequent to surpass the type of "joking or teasing [the Ninth Circuit] [has] held to be part of the ordinary tribulations of the workplace." …

For a different result, though of course on different facts, see Judge Wendy Beetlestone's opinion in De Piero v. Penn. State Univ. (E.D. Pa. 2024); for Judge Whitehead's earlier opinion in allowing Diemert's claim to go forward at an earlier stage of the proceedings, see here.

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[Eugene Volokh] Journal of Free Speech Law: "Beyond the Editorial Analogy: First Amendment Protections for Platform Content Moderation After Moody v. NetChoice,"

The article is here; the Introduction:

Over the past several decades, a combination of a laissez-faire regulatory environment and Section 230's statutory protections for platform content-moderation decisions has mostly foreclosed the development of First Amendment doctrine on platform content moderation. But the conventional wisdom has been that the First Amendment would protect most platform operations even if this regulatory shield were stripped away. The simplest path to this conclusion follows what we call the "editorial analogy," which holds that a platform deciding what content to carry, remove, promote, or demote is in basically the same position—with the same robust First Amendment protections—as a newspaper editorial board considering which op-eds to carry.

While formally appealing, this analogy operates at such a high level of abstraction that one might just as plausibly characterize platforms as more akin to governments—institutions whose power over speech requires democratic checks rather than constitutional protection. These competing analogies point in opposite directions: one treats platforms as democracy-enhancing speakers deserving autonomy; the other as institutional censors warranting regulation.

A circuit split over which analogy to follow prompted the Supreme Court's decision last Term in Moody v. NetChoice, LLC. The Eleventh Circuit had invalidated Florida's content-moderation law as an unconstitutional interference with platforms' editorial discretion. The Fifth Circuit upheld Texas's similar law based on the traditional understanding that common carriers—in this case social platforms—are appropriately subject to anti-discrimination requirements.

The Court found both of these stories too tidy.

All the Justices agreed that some platform moderation decisions are "editorial" and speech-like in nature. Yet they also agreed that this protection might vary across platforms, services, and moderation techniques. Unable to resolve these nuances on a sparse record, the Court remanded for more detailed factual development about how these laws would actually operate.

While Moody can fairly be characterized as a punt—merely postponing hard constitutional questions—its very reluctance to embrace categorical analogies marks a significant shift. Simply by characterizing direct regulation of platform content moderation as a complex question that requires close, fact-specific analysis, Moody upsets tech litigants' basic strategy and suggests a more nuanced First Amendment jurisprudence than many expected. Moreover, the Justices' various opinions offer revealing glimpses of why traditional analogies fail to capture platforms' novel characteristics.

This Article examines Moody's implications for platform regulation. Part I traces the development of the First Amendment's protections for "editorial discretion" and the political controversies that prompted the state regulation. Part II analyzes the Justices' competing approaches. Part III explores Moody's immediate impact on litigation strategy, explaining how its skepticism towards facial challenges will reshape tech-industry resistance to regulation, while arguing that the decision leaves surprising room for carefully designed rules that can withstand more focused constitutional scrutiny. Part IV proposes moving beyond editorial analogies to focus on platforms' actual effects on user speech—an approach that we have endorsed elsewhere and that we believe better serves First Amendment values in the digital age.

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[David Post] The Kennedy Center? Really?

The VSG (Very Stable Genius) has indicated that he is planning on (and may perhaps have already begun?) firing the members of the Kennedy Center Board of Trustees (including chairman David Rubinstein), replacing them with his own appointees, and naming himself as Chairman of the Board. [See the KC Board Statement here]

As originally reported in The Atlantic:

His posting on Truth Social indicated that he planned to make the Kennedy Center "GREAT AGAIN" by terminating "multiple individuals from the Board of Trustees, including the Chairman, who do not share our Vision for a Golden Age in Arts and Culture," and that he would announce a "new Board, with an amazing Chairman, DONALD J. TRUMP!" adding, "For the Kennedy Center, THE BEST IS YET TO COME!").

One might have thought, what with war in Ukraine and Congo, the freeze in federal DEI spending, bird flu outbreaks, growing global trade tensions over tariffs, the immigration crisis, the plans to eliminate US AID and the Department of Education, the alarming rise in fentanyl-related deaths, Elon Musk's 20-somethings poking around inside the Treasury Department's payment systems, …  that the composition of the Kennedy Center Board would be rather low down on the VSG's priority list, and not something one would have expected him to act upon during his third week in office.

Here are two things on which I think we can all agree: that the US faces many pressing problems, and that changing the management of the Kennedy Center will not address any of them.

But there it is. Unlike so much of what Trump has done during the last three weeks, with respect to this one Trump's authority to to take action is clear; the statute creating the Kennedy Center (28 USC §76) gives the president the sole power to appoint (and by implication, to remove) all 36 "general trustees," who are then empowered to appoint a Chair.

So while there's little to say about the legality of his action, it remains odd and troubling. This is a guy who, as far as we know, has never, with all his millions and billions of dollars tucked away in some hedge fund somewhere, given $25.00 to any cultural or artistic institution of any kind. Not a nickel, as far as I can tell (and I've looked).

He's not, of course, much given to philanthropy in support of anything; it's as though he's taken the "Reverse Giving Pledge" in which he promises to keep most of his money rather than giving it away to try to make the world a better place.

It is, I candidly admit, one of the things I dislike most about him.

But putting that aside, you'd have a hard time persuading me that this guy has any "Vision for a Golden Age in Arts and Culture" whatsoever, or that he will be an "Amazing" Chairman of the K.C. Board. [Though commenters who want to try to shoulder that burden are of course welcome to do so]

It's not the most ridiculous thing he has done or said - that honor has to go to the plan to relocate 2 million Gazans and turn the Gaza Strip into an American resort - but it is laughable nonetheless. As I've said before, the Trump presidency would have made a terrific, and quite funny, television series ("Celebrity President"), were it not for the fact that it is actually happening, in the real world, to real people.

But surely we can drop the pretense that this move has even the slightest connection to "Arts and Culture," and recognize that it is, instead, all about … what? You tell me.

 * * * * * * * * * *

And if I may add one irrelevant personal note: I've lived in DC for over 40 years, and spent a fair bit of time at the Kennedy Center. I am, as I've revealed here on the VC, a big opera fan, and the K.C. is the main (though not the only) venue for opera performances in the DC area. My wife and I have also become big fans of the National Symphony Orchestra, which has been transformed in the last decade or so into a truly world-class ensemble, the equal of any orchestra in the country. And my son is a professional musician whose chamber music group has performed at the K.C. on several occasions. So I admit that I feel a personal connection to the place which almost certainly colors my reaction to Trump's impending makeover. I'll try to keep an open mind as it proceeds, but I am, obviously, nervous about what he's got in mind.

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[Eugene Volokh] Monday Open Thread

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[Brandon Garrett] Due Process Is Timely

Halima Culley's college-aged son was driving her car, and was pulled over by Satsuma, Alabama police. After a search, the officers discovered marijuana, arrested him and charged him with minor drug violations. And they seized the car as incident to arrest. Culley herself had done nothing wrong, but prosecutors filed a claim in a civil court to acquire her car, arguing that it was implicated in her son's criminal conduct. It took her almost two years to finally get that case dismissed—a long time to be left without one's vehicle.

Culley argued that due process should entitle people like her to a fair, prompt hearing, before the property was taken by the government. It should not take two years to regain one's property. In Culley's case, when it reached the Supreme Court last term, the Justices concluded that people like Culley had no due process right to such a preliminary hearing, pending the longer process to consider the forfeiture claim. The Justice did not disagree that notice and a hearing must be provided if states seize real property. In an opinion by Justice Brett Kavanaugh, they ruled, however, that no expedited or preliminary hearing was required by the Due Process Clause.

In ruling, the Justices emphasized "historical practice," like they have in so many opinions in recent years. But modern civil forfeiture practices are totally different from anything historically used in form and in scale; Justice Neil Gorsuch emphasized those "profound" departures in a concurring opinion. Now, people who are not even accused of a crime can have their property taken, without any trial, but also without any exigent circumstances. Five of the Justices raised real fairness concerns about such forfeiture practices. They also emphasized that the forfeiture hearing that is provided must be "timely." And that this due process protection protects important personal and government interests at the same time—a very important point. Perhaps future rulings will more directly tackle the due process concerns that untimely forfeiture practices can raise.

These unfair practices are a global problem, as well. For example, new technology has created due process challenges across the world. While Culley had to wait two years for a hearing, at least there was a chance to present the case in person, eventually. In many jurisdictions, artificial intelligence (AI) systems are being used in courts, whether in risk assessments used to predict outcomes, or to generate evidence, like with facial recognition. If these systems are a "black box" and not interpretable, then people affected, lawyers, and judges have no way to understand what they did or correct errors. Judges are beginning to confront due process or fair trial claims that using these systems violates rights.

Speaking of "timely" due process, it is not an accident that today, the concept of due process is central to many different important problems and debates. Fairness matters to us personally and it matters to society. Today, complaints abound that people are given too much or too little due process in courtrooms and colleges, police stations and jails, in print media and online. Our justice systems are particularly concerned with protecting people from unfair treatment by the government. And yet, major due process failures persist.

To take another example, as new questions about the fairness of common but under-litigated forfeiture practices grow, long established and commonly litigated due process right remains highly underenforced. In 1964, the Supreme Court ruled in Brady v. Maryland that prosecutors cannot withhold exculpatory evidence from the defense in a criminal trial, because that is fundamentally unfair. Yet, as Adam Gershowitz, Jennifer Teitcher and I have recently documented in building a database of five years of reported rulings, while Brady claims are litigated across the country and yet serious claims rarely result in relief.  We do not have a good system for remedying severe prosecutorial misconduct that results in unfair trials.

Nor do we have good systems to prevent egregious errors in civil forfeiture, bail hearings, and many other types of processes that affect people's rights. Why is this? Perhaps because many of the people affected are poor and vulnerable. In a society with deep social and political divisions, treating such people unfairly may not create enough of a public debate, a political issue, or result in much media coverage. This reflects a deeper concern that maybe we have taken for granted that due process will protect us, resulting in complacency about threats to due process.

My goal in my new book, "Defending Due Process," is to convince people, whether one is ever caught up in the legal system or not, to appreciate the centrality of due process to our lives. It is understandable that we often want to put outcomes first and the process second. As I will describe in the next blog in this series, human psychology, amplified by social divisions and technology, fosters expectations for that type of immediate gratification, rather than valuing the process.

A timely and fair process for all should matter to us all.  It is basic to the rule of law. And, as Justice Kavanaugh highlighted in the Culley case, due process helps to protect both the interests of people and the government. Common ground on due process matters now more than ever, to mend political polarization, to cool simmering distrust of government, and to safeguard our constitutional rights. A revival of due process is long overdue.

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[Josh Blackman] Today in Supreme Court History: February 10, 1967

2/10/1967: The 25th Amendment is ratified.

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[Stephen Halbrook] Second Amendment Roundup: 5th Circuit Nixes Ban on Gun Sales to 18 to 20 Age Group

On January 30, the Fifth Circuit decided Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, holding that the federal Gun Control Act's prohibition on the sale of firearms to persons under 21 years old, as applied to adults aged 18 to 20 years old, violates the Second Amendment.  The law effectively banned handgun sales, as it has an exception for rifles and shotguns, which may be sold to persons 18 and older.

The opinion was authored by Judge Edith H. Jones and was joined by Chief Judge Elrod and Judge Barksdale.  The provisions at issue are 18 U.S.C. § 922(b)(1), which governs in-person sales from a federally-licensed firearm dealer (FFL), and § 922(c)(1), a little-used provision which applies to sales in which the buyer does not appear at the FFL's premises in-person.  Ironically, the court notes, "The Act and regulations do nothing to prohibit eighteen-to-twenty-year-olds from owning, possessing, or carrying handguns, nor does it prohibit them from buying handguns in the unlicensed, private market or receiving handguns as gifts."

While the words "purchase" and "sale" do not appear in the Second Amendment, the court noted that the right to "keep and bear arms" "surely implies the right to purchase them."  Applying the first step of the analysis as directed by the Supreme Court in Bruen and Rahimi, the court stated: "The threshold textual question is not whether the laws and regulations impose reasonable or historically grounded limitations, but whether the Second Amendment 'covers' the conduct (commercial purchases) to begin with."  Like the First and Fourth Amendments, the Second Amendment refers to "the people" without mention of age or maturity restrictions.

The court rejected the government's further textual argument that eighteen-to-twenty-year-olds lacked certain "civic rights" at the founding, such as jury service and suffrage, and thus were not part of "the people" protected by the Amendment.  Women, not to mention African Americans, did not have such civic rights either.  As the court continued:

Thus, to say that "the people" covered by the Second Amendment is limited to those who were a part of the "political community" at the founding would imply excluding "law-abiding, adult citizens" based on property ownership, race, or gender…. Just as defining "arms" as "only those arms in existence in the 18th century" "border[s] on the frivolous," likewise, attempting to limit "the people" to individuals who were part of the "political community" at ratification is ludicrous.

The reference to arms not being limited to those from the 18th century comes from the Supreme Court's decision in Heller holding that modern firearms are protected by the Amendment.  As an aside, circuits covering states with prohibitions on modern firearms such as the AR-15 disregard what Heller said in upholding the bans.  It's unlikely that the Fifth Circuit will have occasion to consider and weigh in on such bans because the states it covers are unlikely to enact them.  That's why there is no circuit conflict on the issue and also why the Supreme Court should grant cert in  and Ocean State Tactical to resolve the issue without a circuit conflict.

In contrast to civic rights, the Reese court explained that the Second Amendment protects an individual right founded on the right to self-defense.  At the founding, not only were there no age restrictions on the purchase of firearms, but eighteen-to-twenty-year-olds were required by both state and federal militia laws to obtain and keep firearms.  The federal Militia Act of 1792 mandated "that each and every free able-bodied white male citizen" aged 18 to 44 must enroll in the militia and "provide himself with a good musket or firelock, … or with a good rifle…."  Also, in view of the Second Amendment's "well regulated militia" clause, the court stated: "Eighteen-to-twenty-year-olds therefore must be covered by the plain text of the Second Amendment, as they were compulsorily enrolled in the regiments that the Amendment was written to protect."

The Fifth Circuit thus joined two other circuits in holding that eighteen-to-twenty-year-olds are part of "the people" protected by the Amendment.  The Eighth Circuit, in Worth v. Jacobson, invalidated a Minnesota law barring 18-to-20-year-olds from carrying handguns in public.  And the Third Circuit, in Lara v. Commissioner, invalided a Pennsylvania law prohibiting persons aged 18 to 20 from carrying firearms on public streets and property during a declared state of emergency.

The Reese court next applied step two of the Bruen/Rahimi analysis, asking whether the age ban is consistent with the Nation's historical tradition of firearm regulation.  It is here where the government sought to turn that analysis upside down:

The government's theory inverts historical analysis by relying principally on mid-to-late-19th century statutes (most enacted after Reconstruction) that restricted firearm ownership based on age. Then the government works backward to assert that these laws are consistent with founding-era analogues focusing on the minority status and general "irresponsibility" of eighteen-to-twenty-year-olds. The government thus confects a longstanding tradition of firearm restrictions imposed on individuals under twenty-one.

The government presented nothing pertinent from the founding period.  Two antebellum public universities were cited that prohibited students (without regard to age) from possessing firearms (but only on campus).  A state law about constables cited by the government is almost laughable – as the court puts it, "Although 'infants,' i.e., legal minors under the age of 21, were categorically excluded from serving as constables, so also were justices of the peace, lawyers, attorneys, physicians, the poor, the sick, and the elderly."

By contrast, "eighteen-to-twenty-year-olds could be obliged to join the posse comitatus…. Instead of refusing to arm young Americans for fear of their irresponsibility, founding-era regulations required them to be armed to secure public safety."

The government made the further argument that the class of persons under 21 is more prone to being dangerous (I've never understood why the low rate of violence by females never gets mentioned).  As the court rejoined, the handgun purchase ban requires no "judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon."  That's a quote from Rahimi about the federal ban on possession of a firearm by a person with a domestic violence restraining order.  Contrary to those who think that Rahimi weakens Bruen, that shows that Rahimi has teeth in support of Second Amendment rights.

Next, the government cited a number of mostly late 19th century state laws that restricted the subject age group's ability to purchase firearms, but Reese found that these laws "were passed too late in time to outweigh the tradition of pervasively acceptable firearm ownership by eighteen-to-twenty-year-olds at 'the crucial period of our nation's history.'"

To be sure, Bruen acknowledged an "ongoing scholarly debate" regarding the most relevant period of history for issues arising under the Fourteenth Amendment, but as Reese notes, Bruen clarified that "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text."  In Reese, the government presented "scant evidence" that persons 18 to 20 at the founding "were restricted in a similar manner to the contemporary federal handgun purchase ban," and its 19th century evidence, as Bruen (and Heller before it) said, "cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence." The federal sale ban was thus held to be unconstitutional.

In a case like Reese involving a federal law, it should never be an issue whether the original public understanding of the Second Amendment governs.  But following its practice in other cases, amicus Everytown for Gun Safety actually argues that the 1868 understanding overcomes that of 1791, even in cases that are purely federal and involve no state action.  Latching on to Bruen's comment that the Court has "assumed" that the scope for both state and federal governments "is pegged to the public understanding … in 1791," the brief asserts that "the Court expressly left open the question whether 1868 or 1791 is the relevant focus," and it pointed to "ongoing scholarly debate" mentioned above.  Given what the Court has "assumed" in countless Bill of Rights cases, it is hardly the case that the Court "expressly" left the issue open based merely on the scholarly book and the law review article that the Court cited.

The Everytown brief goes on to argue: "If the Court decides to resolve the issue for future cases, … it should conclude that 1868 is the correct focus in cases challenging both federal and state laws."  That's completely upside down.  Heller teaches that the meaning of the Second Amendment is based on the 1791 understanding.  McDonald teaches that the Fourteenth Amendment was understood to incorporate the Second Amendment, not to change the original meaning of the Second Amendment.  For the definitive analysis of the subject, see Mark Smith's "Attention Originalists: The Second Amendment was adopted in 1791, not 1868" in Harv. J.L. & Pub. Pol'y Per Curiam. 

The Reese case was argued by John Ohlendorf of Cooper & Kirk.  It remains to be seen what will become of the ruling.  As Prof. Jonathan Turley notes, "Had this decision come down under the Biden Administration, an appeal would likely have been taken and this could have strongly reinforced the Court's Second Amendment jurisprudence."  One can only guess whether the Trump Administration will file a cert petition or let well enough alone.

But even if the Administration does not seek review, this issue likely is headed to the Court soon.  On the same day Reese was decided, a panel of the Fourth Circuit heard McCoy v. ATF, a challenge to the same law.  The questioning was very hostile to the Second Amendment challengers, so it appears likely that the Fourth Circuit will create a circuit split.  If that happens, the likelihood of Supreme Court review would be high.

 

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