Eugene Volokh's Blog, page 183

[Eugene Volokh] Executive Order Apparently Promises No Enforcement of TikTok Ban for 75 Days

An excerpt from the order, which appears not to be the sort of 90-day extension contemplated by the Tiktok divestiture statute itself, but rather appears to be the exercise of the Executive Branch's enforcement discretion:

I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions. To fulfill those responsibilities, I intend to consult with my advisors, including the heads of relevant departments and agencies on the national security concerns posed by TikTok, and to pursue a resolution that protects national security while saving a platform used by 170 million Americans. My Administration must also review sensitive intelligence related to those concerns and evaluate the sufficiency of mitigation measures TikTok has taken to date.

The unfortunate timing of section 2(a) of the Act — one day before I took office as the 47th President of the United States — interferes with my ability to assess the national security and foreign policy implications of the Act's prohibitions before they take effect. This timing also interferes with my ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.

Accordingly, I am instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward in an orderly way that protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans…. In light of this direction, even after the expiration of the above-specified period, the Department of Justice shall not take any action to enforce the Act or impose any penalties against any entity for any conduct that occurred during the above-specified period or any period prior to the issuance of this order, including the period of time from January 19, 2025, to the signing of this order….

I further order the Attorney General to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order….

Because of the national security interests at stake and because section 2(d) of the Act vests authority for investigations and enforcement of the Act only in the Attorney General, attempted enforcement by the States or private parties represents an encroachment on the powers of the Executive. The Attorney General shall exercise all available authority to preserve and defend the Executive's exclusive authority to enforce the Act….

Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals….

This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

I can't speak to whether there are any loopholes here, or other matters that might cause unintended consequences, but I thought I'd pass this along.

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[Josh Blackman] President Trump's "Weaponization" Executive Order

President Trump signed another executive order, titled "Ending the Weaponization of the Federal Government." It provides, in part:

The prior administration and allies throughout the country engaged in an unprecedented, third-world weaponization of prosecutorial power to upend the democratic process. It targeted individuals who voiced opposition to the prior administration's policies with numerous Federal investigations and politically motivated funding revocations, which cost Americans access to needed services. The Department of Justice even jailed an individual for posting a political meme. And while the Department of Justice has ruthlessly prosecuted more than 1,500 individuals associated with January 6, and simultaneously dropped nearly all cases against BLM rioters.

The order instructs the Attorney General to investigate actions taken by DOJ, the SEC, the FTC, and recommend "appropriate remedial action."

The Attorney General, in consultation with the heads of all departments and agencies of the United States, shall take appropriate action to review the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States, including, but not limited to, the Department of Justice, the Securities and Exchange Commission, and the Federal Trade Commission, over the last 4 years and identify any instances where a department's or agency's conduct appears to have been contrary to the purposes and policies of this order, and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy and the Counsel to the President, with recommendations for appropriate remedial actions to be taken to fulfill the purposes and policies of this order.

It does not seem that President Biden gave a pardon to Jack Smith. Or maybe Smith and his team refused to accept pardons.

Smith's work can also be tested under the False Claims Act. If Jack Smith was not in fact holding a lawful position, then he submitted false claims to the federal government. And I think the forum for such a suit would be Fort Pierce. Whether or not private relators are appointed in violation of the Appointments Clause, the United States could bring suit. I do not know if Smith submitted any claims to the state of Florida, perhaps for travel or security concerns. Those claims could also trigger the Florida False Claims Act.

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[Josh Blackman] Murthy v. Missouri, Redux

President Trump has already signed a slew of executive orders. One is titled "Restoring Freedom of Speech and Ending Federal Censorship." The order provides, in part:

The First Amendment to the United States Constitution, an amendment essential to the success of our Republic, enshrines the right of the American people to speak freely in the public square without Government interference. Over the last 4 years, the previous administration trampled free speech rights by censoring Americans' speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve. Under the guise of combatting "misinformation," "disinformation," and "malinformation," the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government's preferred narrative about significant matters of public debate. Government censorship of speech is intolerable in a free society.

And there is a directive to the Attorney General:

The Attorney General, in consultation with the heads of executive departments and agencies, shall investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy, with recommendations for appropriate remedial actions to be taken based on the findings of the report.

Murthy v. Missouri did not reach the merits. This issue may be adjudicated in a different forum.

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[Josh Blackman] The DOGE Race to the Courthouse

It is inauguration day. That means it is time to sue an entity that doesn't yet exist! According to Lawfare, four separate suits were filed to stop DOGE. But who was first in the race to the Courthouse? We can tell based on the docket numbers.

Docket 1:25-cv-164 was brought by Public Citizen, State Democracy Defenders Fund, and the American Federation of Government Employees.

Docket 1:25-cv-165 was brought by the Center for Biological Diversity.

Docket 1:25-cv-166 was brought by National Security Counselors.

Docket 1:25-cv-167 was brought by American Public Health Association, American Federation of Teachers, Minority Veterans of America, Votevets Action Fund, The Center for Auto Safety, and Citizens for Responsibility and Ethics in Washington.

Let's see which judges receives these four cases.

As of yet, no suit based on the Emoluments Clauses. It's coming.

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[Josh Blackman] The 1st and 47th President On Being Saved From A Bullet By Providence

George Washington, letter to John A. Washington (July 18, 1755)

By the all-powerful dispensations of Providence, I have been protected beyond all human probability and expectation; for I had four bullets through my coat, and two horses shot under me, yet escaped unhurt, altho' death was levelling my companions on every side.

President George Washington's First Inaugural Address (April 30, 1789)

No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States. Every step by which they have advanced to the character of an independent nation seems to have been distinguished by some token of providential agency.

President George Washington, letter to Samuel Langdon (September 28, 1789)

The man must be bad indeed who can look upon the events of the American Revolution without feeling the warmest gratitude towards the great Author of the Universe whose divine interposition was so frequently manifested in our behalf—And it is my earnest prayer that we may so conduct ourselves as to merit a continuance of those blessings with which we have hitherto been favoured. I am Sir, with great esteem Your most obedt Servt.

President Donald Trump's Second Inaugural Address (January 20, 2025)

Just a few months ago, in that beautiful Pennsylvania field, an assassin's bullet ripped through my ear. But I felt then, and believe even more so now, that my life was saved for a reason. I was saved by God to make America great again.

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[Irina Manta] Trump's Proposed Use of the Military for Deportations

Prof. Cassandra Burke Robertson and I published a new piece today over at The Conversation about Trump's idea to use the military for deportations. In short: he has a tough road ahead.

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[Eugene Volokh] Monday Open Thread

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[Ilya Somin] Another Terrible Hostage Deal

Late Hamas leader Yahya Sinwar. (AP)

 

Joe Biden and Donald Trump both claim credit for Israel-Hamas ceasefire deal, which began to be implemented today.  I suspect it has more to do with calculations made by the Israelis and Hamas themselves. But in truth, no one deserves credit, because the deal is terrible. The Israelis will release some 1900 terrorists and captured Hamas members in exchange for 33 mostly civilian Israeli hostages (some of whom are not even alive). Many of the terrorists scheduled for release have committed horrific atrocities. Like previous hostage deals with terrorists, this predictably incentivizes future terrorism. You get more of what you reward. Plus, the released terrorists are likely to kill again, as has happened with many of those released in previous deals.

It seems neither the Israeli nor the American backers of this deal have learned the terrible lessons of previous such exchanges. I summarized them in an October 2023 post, which also referenced a 2011 piece, in which I was critiqued the Shalit deal, which was a key factor in leading to the October 7, 2023 attack that started the current war:

The horrific Hamas terrorist attacks against Israel revealed a variety of weaknesses in Israel's security policies, and perhaps those of some other Western nations, too. But one that has not gotten as much attention as it deserves is the folly of hostage deals with terrorists. Hamas leader Yahya Sinwar, the likely mastermind of the [October] attacks, was one of 1027 Palestinian terrorist prisoners released by Israel in 2011, in exchange for a captured Israeli soldier Gilad Shalit. And one of Hamas's motives for the attack was to use the captured hostages to secure the release of other Palestinian terrorists held by Israel…

At the time of the 2011 agreement, Israeli Prime Minister Benjamin Netanyahu's government was widely praised for demonstrating how much it values the lives of its people. I was one of the relatively few critics of the deal….

While it seems I was right to predict that the deal would cost far more innocent lives than it saved, I had no idea of the enormous extent to which this has turned out to be true. With well over 1000 dead, the terrorist attack in which Sinwar played a key role is by far the worst in Israel's history, and one of the worst in the entire history of the world. It is also the biggest anti-Semitic massacre since the Holocaust….

Simple Economics 101 says you get more of the kinds of activities you reward. If you reward hostage-taking, you will predictably incentivize more hostage-taking. Plus, the terrorists you release are themselves likely to go out and commit more acts of terrorism - as Yahya Sinwar did.

I hope this time the lesson will finally be learned. But I fear it will not….

Yahya Sinwar was ultimately killed by Israeli forces last year, but not before he masterminded the October 7 attacks.

Sadly, it seems I was right to worry that the lessons of the Shalit deal and other previous failures would not be learned, even after October 7. The present deal shows it.

And, admittedly, this is not a simple matter of the Israeli government yielding to the US. Polls indicate the deal is highly popular in Israel, backed by a large majority of public opinion. That is probably the main reason why the government agreed to it.

I wrote about the problematic political dynamics of hostage deals in my 2023 post:

[H]ostages currently held by terrorists are very visible to the public, and politicians like [Israeli Prime Minister Bibi] Netanyahu have strong incentives to listen to the anguished pleas of their family and friends. It seems cruel not to!

By contrast, we cannot and do not know the identities of the future hostages whose seizure we incentivize through our deal. Nor can we know the identities of future victims of terrorists released in the deal. In 2011, no one could know the identities of the future victims of Yahya Sinwar. Their families were in no position to lobby government officials to save them.

In the 2023 post, I also recognize that people might dismiss my view because it is not my friends and relatives who are being held hostage:

I realize that… some will reject the above logic on the grounds that I can only say these things because it isn't me or my family who are being held as hostages by Hamas. If it were, maybe I would think differently.

It may well be so. I have never had a friend or family member taken hostage and cannot know what I would do if I did. I have dealt with a number of death threats (most due to my advocacy of migration rights). I chose not to give in…. But the small risk I took was utterly insignificant compared to that endured by hostages held by groups like Hamas.

Still, I would ask those inclined to give in to such emotional considerations to remember that the future hostages seized as a result of the deals we make today also have families who will suffer terrible anguish. The same goes for the families of future victims of terrorists released under those deals. We should strive to reduce the amount of such suffering, not increase it. And that means remembering Econ 101, and learning to say "no" - as the Israelis should have done in 2011.

Eitan Fuld, whose brother Avi was killed by one of the terrorists scheduled to be released in today's deal gets the point:

"The release of Ari's murderer hurts," he said in a statement. "My big problem and for all of us is that of the coming victims and the next families that to our regret will join the bereaved families due to this bad deal."

I realize that my take on this deal aligns with that of far-right Israeli parties who voted against it. I think these parties and and much of their agenda are awful. I have, for example, critiqued their and Netanyahu's plans to undermine judicial review in Israel. I am likewise (to understate the point) no fan of their repressive and discriminatory policies respecting West Bank Palestinians and Israel's Arab minority.  But a stopped clock is right twice per day, and this is such a moment.

I am more happy to be in alignment with libertarian-leaning conservative Boston Globe columnist Jeff Jacoby, who has criticized the deal on similar grounds.

Will Israel never learn?

On numerous occasions in the past, Israeli governments have agreed to similarly lopsided exchanges with terrorist organizations like Hamas, Hezbollah, and the Palestine Liberation Organization. Time and again, Israel has paid for the freedom of a few hostages or prisoners of war, or sometimes just their remains, by releasing hundreds of violent prisoners, many of them responsible for the deaths of civilians. Time and again, the newly freed terrorists have picked up where they left off.

As noted above and in my earlier posts on these issues, the Israelis aren't alone in their failure to learn this lesson. Other Western governments, including our own, have all too often made the same types of mistakes.

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:@WilliamBaude: New Episode: Reference Check

In the most recent episode of Divided Argument, "Reference Check," Dan and I talk about two of the Supreme Court's opinions from last week -- the technical jurisdictional decision in Royal Canin v. Wullschleger, and the per curiam opinion in TikTok v. Garland, the latter already being potentially eclipsed by current events. Here's the full description:

In unpredictable fashion, we record a shockingly timely episode to reflect the Court's hasty per curiam in the TikTok case. Along the way, we catch up on the shadow docket happenings, manage not to get derailed by an ethics discussion, discover a surprising opinion revision in real time, and break down the Court's opinion in Royal Canin U. S. A. v. Wullschleger. Most importantly, Dan—with help from loyal listeners—collects on a bet Will unwisely made years ago.

And again, here's the episode.

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[Josh Blackman] Biden Office of Legal Counsel Departs From Obama-Era opinions, and Reverts to Reagan-Era Opinions, on the Difference Between "Officer of the United States" and "Office under the United States."

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

In the waning days of the Biden presidency, there has been a flurry of new Executive Branch decisions with constitutional implications. President Biden determined that he had the power to pardon his son for any conceivable federal offense committed during the past decade. President Biden also "affirmed" that the proposed Twenty-Eighth Amendment is part of the Constitution, even though the Archivist of the United States has not certified it. President Biden has refused to take care that the TikTok ban is faithfully executed, even after the Supreme Court upheld the statute Biden himself signed into law. Who knows what else the final few hours will bring?

During this time, the Office of Legal Counsel ("OLC") has also been busy. On January 16, 2025, OLC issued a new opinion signed by Assistant Attorney General Christopher C. Fonzone. It is titled "The Test for Determining 'Officer' Status Under the Appointments Clause." (This opinion came only one day after the Department of Justice filed its Eleventh Circuit merits brief in defense of the federal qui tam statute.) Yes, even as the rest of the administration exits stage left, OLC is still thinking about what Justice Kagan derided as "officer stuff." We realize that many readers are quite tired of our posts on this topic. But as long as the Executive Branch continues to opine on the "officer" issue, we will persist too.

A fulsome analysis of the opinion will wait for another time, including the analysis of the qui tam statute, and the line between officer and employee. Here, we want to focus on a single sentence in footnote one. (The most thought-provoking parts of OLC opinions tend to be reserved for footnotes.)

[W]e note that, although the Constitution makes several references to the term "office" or "officer" outside the Appointments Clause, this memorandum does not address whether or to what extent any such references should be read consistent with the term "Officer[] of the United States" in the Appointments Clause. See, e.g., Special Government Employee Serving as Paid Consultant to Saudi Company, 40 Op. O.L.C. 1, 4–5 (2016) (discussing the relationship between an "Office of Profit or Trust" under the Emoluments Clause and an "Officer" under the Appointments Clause).

Here, OLC seems to acknowledge there may be a difference between a position held by an "Officer of the United States," who is appointed pursuant to the Appointments Clause, and an "Office of Profit or Trust under [the United States]" that is covered by the Foreign Emoluments Clause. If these two categories of positions were co-extensive, this footnote would not have been necessary. But OLC expressly stated that they are not resolving this issue, which implies that this question has not been settled by the federal courts or by prior Executive Branch guidance.

OLC didn't have to say anything at all about this point. But OLC did. We suspect that the lawyers in OLC paid close attention to the 2023–2024 disqualification litigation based on Amendment XIV, Section 3. For example, during oral argument in Trump v. Anderson, Justice Gorsuch noted that "[a] lot hinges on the difference between the term 'office' and 'officer.'" Gorsuch also asked Trump's counsel, Jonathan Mitchell, to offer a "theory . . . from an original understanding or a textualist perspective why those two terms ['Officer of the United States' and 'Office under the United States'], so closely related, would carry such different weight?" Moreover, we suspect that OLC may have been familiar with some of the textual and other arguments that we have been raising for more than a decade. Indeed, these arguments were raised by Trump's lawyers and amici supporting Trump before elections administrators and lower federal courts. Albeit, Trump's counsel did not press all of these arguments at the Supreme Court.

The Biden OLC is not trying to help Trump, but OLC does not want to be left on the wrong side of this legal issue. OLC stated that its current view on the Appointments Clause is consistent with recent Supreme Court precedent and earlier OLC opinions. Whether that is fully accurate or not is another matter. But OLC does not want to be in a position where the Supreme Court expressly rejects something that OLC has concluded. That sort of hit is bad for the institution. So here, at least, OLC hedges on whether there is a difference between "Officer of the United States" and "Office under the United States." This distinction is at the core of much of our individual and joint scholarship and advocacy.

Had OLC not taken a position on this particular issue before, the remainder of the footnote would be unremarkable. However, in the past, OLC has taken a position on this issue. Indeed, OLC's view on this point has oscillated between the Obama and Reagan Administrations, as Seth described in a 2013 article. Let's walk backwards.

As longtime readers may recall, President Barack Obama was nominated for the Nobel Peace Prize shortly after his first term began. There was some debate about whether his accepting the prize would violate the Foreign Emoluments Clause. In December 2009, OLC issued an opinion titled "Applicability of the [Foreign] Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize." It was authored by Acting Assistant Attorney General David Barron. The opinion concluded, for reasons not relevant to this post, that Obama's acceptance of the prize did not violate the Foreign Emoluments Clause. However, the opinion also stated in an ipse dixit that "[t]he President surely 'hold[s] an[] Office of Profit or Trust[] [under the United States]' . . . ." (emphasis added) (quoting Article I, Section 9, Clause 8). This opinion did not recognize any distinction between an "Officer of the United States" and an "Office under the United States." 

A 2010 opinion, also by Barron, observed that "only those persons considered officers within the meaning of the Appointments Clause . . . may be subject to the [Foreign] Emoluments Clause . . . ." (emphasis added). Again, this passage seems to suggest that positions covered by the Appointments Clause ("Officers of the United States") are coextensive with positions covered by the Foreign Emoluments Clause ("Offices . . . under the United States"). 

At a minimum, the 2025 Biden OLC opinion is in tension with the 2010 Nobel Prize Opinion. The 2009 and 2010 OLC opinions put forward the position that "Officer of the United States" and "Office . . . under the United States" were coextensive categories. The 2025 OLC opinion puts forward the position that this issue has not been resolved. Yet, the 2025 Biden OLC opinion does not cite, let alone acknowledge any contrast, with the Obama-era opinion. Likewise, these Obama-era opinions failed to acknowledge a series of OLC opinions from the Reagan Administration that took a very different approach.

In 1982, Deputy Assistant Attorney General Robert Shanks affirmed that different "language" relating to office in different constitutional clauses relates to different "purpose[s]." In 1986, Assistant Attorney General Charles Cooper observed that "[p]rior opinions of this Office have assumed without discussion that the persons covered by the [Foreign] Emoluments Clause were 'officers of the United States' in the sense used in the Appointments Clause, U.S. Const. art. II, § 2, cl. 2." However, Cooper recognized that the 1982 opinion "did advise that a person may hold an 'office of profit or trust' under the [Foreign] Emoluments Clause without necessarily being an 'officer of the United States' for purposes of the Appointments Clause." And in 1988, Deputy Assistant Attorney General John McGinnis wrote that the Foreign Emoluments Clause "applies to all persons holding an office of profit or trust under the United States, and not merely to that smaller group of persons who are deemed to be 'officers of the United States' for purposes of [the Appointments Clause in] Article II, Section 2 of the Constitution." (emphasis added). Cooper and McGinnis, like the position Tillman has put forward since circa 2007, argued that the category of "Office[s] . . . under the United States" is broader that the category of "Officers of the United States." In other words, some people who are "Officers of the United States" do not hold "Office[s] . . . under the United States." Moreover, some people holding positions in the federal government are neither "Officers of the United States" nor hold "Office[s] . . . under the United States." These terms are not co-extensive, and they are not all-encompassing.

In our view, the Reagan-era opinions are correct, the Obama opinions are poorly-reasoned, and the Biden-era opinion acknowledges that the issue is not settled. In 2019, the Congressional Research Service shifted towards the Tillman-Blackman position. Also in 2019, during the first Trump Administration, the Department of Justice Civil Position shifted towards the Blackman-Tillman position. Time will tell if the Office of Legal Counsel under the Trump-47 Administration makes a similar move.

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