Eugene Volokh's Blog, page 247

[Josh Blackman] Today in Supreme Court History: October 13, 1890

10/13/1890: Justice Samuel Miller dies.

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[Josh Blackman] Today in Supreme Court History: October 12, 1977

10/12/1977: Regents of the University of California v. Bakke argued.

The Burger Court (1975-1981)

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[Keith E. Whittington] Kansas Prof Removed after Viral Video of Classroom Remarks

A health sports instructor at the University of Kansas is out of a job after a video clip of his in-class behavior went viral. The university's statements do not inspire confidence, even though the professor might well have been out of bounds.

Libs of Tiktok posted a short clip of an instructor in a classroom at the University of Kansas. In the clip, he seems to say in the middle of a class session, "There are going to be some males in our society that will refuse to vote for a potential female president because they don't think females are smart enough to be president. We could line all those guys up and shoot them. They clearly don't understand the way the world works." Suddenly remembering that he is being recorded, he then adds, "Did I say that? Scratch that from the recording. I don't want the deans hearing that I said that."

There is, of course, no context to the 32 second clip, though surrounding reporting suggests that the statement was made in the midst of a health sports class at some point this semester. The university announced yesterday that the instructor was under investigation, saying "His intent was to emphasize his advocacy for women's rights and equality, and he recognizes he did a very poor job of doing so." Today, the university announced that the professor had "left the university."

"The free expression of ideas is essential to the functioning of our university, and we fully support the academic freedom of our teachers as they engage in classroom instruction. Academic freedom, however, is not a license for suggestions of violence like we saw in the video," [Provost Barbara] Bichelmeyer said. "While we embrace our university's role as a place for all kinds of dialogue, violent rhetoric is never acceptable."

The Foundation for Individual Rights and Expression (FIRE) immediately issued a statement defending the professor. "The viral video shows an instructor making an off-handed joke—not communicating a serious intent to commit unlawful violence," [Graham] Piro said in a statement. "That's protected speech, and people advocating that the instructor be punished for his expression are advocating for the erosion of the First Amendment." Today, FIRE pointed out that the classroom statement could not credibly be viewed as a "true threat." As a consequence, FIRE asserts it is protected by the First Amendment and the instructor should be immune from adverse employment consequences for his actions. [The Academic Freedom Alliance has not made any statement on this matter, and I speak for myself alone here.]

I think the situation is more complicated that FIRE has so far made out, but that Kansas is focusing on the wrong issue. The core problem is not one of "violent rhetoric" and whether or not this speech is an example of a true threat. The core problem is one of unprofessional classroom behavior.

As it happens, I discuss such a scenario in You Can't Teach That! I argue there that traditional academic freedom principles and government employee speech doctrine as it applies to university professors should be understood to protect controversial classroom speech that is both germane to the class and professionally competent. Faculty speech in the classroom that is neither germane nor competent, however, is unprotected, and professors can be properly disciplined for such speech. For example, a chemistry professor who spends part of her class time stumping for Kamala Harris or an astronomy professor who instructs her students that the moon is made of green cheese is operating outside the bounds of academic freedom or First Amendment protections and can properly be disciplined. An African-American history professor who spends class time propounding critical race theory, on the other hand, should be understood to be operating within those protections.

But what about the Kansas sports health professor. The question is less about the violence of the political rhetoric than the fact of the political rhetoric. From the book:

Some academic disciplines have relatively well-defined boundaries regarding their subject matter, but others might be much more capacious such that it is less clear what topics might not be germane to a given class discussion. A lecture on early nineteenth century American literature might be expected to roam further afield than a lecture on thermodynamics. Allowances must likewise be made for speech that is non-germane from a subject matter perspective but that is apposite from a pedagogical perspective. Professors who tell jokes to help build community and sustain interest might be engaging in speech that is non-germane when taken in isolation but that makes sense in context. Professors pushing such boundaries no doubt owe the students an obligation not to be unnecessarily controversial. Jokes, asides, illustrations, and analogies should not themselves become a source of tension. A professor who "livens up" his lectures with a running series of acerbic political comments is not off the hook for introducing unnecessarily controversial material into the class simply because he finds his own remarks witty, just as courts have not been impressed with professors who aver that their sexually lewd remarks or crude language in class are just part of their teaching technique. Education is a social endeavor and professors cannot be expected to robotically stick to a script, but frequent digressions into tangential topics of conversation risk crossing the boundaries of academic freedom, especially when those digressions are contentious.

The question at hand is whether an instructor in a health sports class should be trying to "emphasize his advocacy for women's rights and equality" and encourage his students to vote for Kamala Harris. The answer to that question is probably "no," and it really does not matter whether he did a good job in his advocacy or a poor job or used violent rhetoric or some other form of rhetoric. A state university has both the authority and the responsibility to make sure that professors in its classroom engage in professionally appropriate speech and do not abuse their captive audiences by engaging in professional misconduct. Professional misconduct can get a professor disciplined, and even fired. A professor has no right to commandeer his health sports class in order to engage in political advocacy.

The Kansas instructor was at best dancing on the line, even if this single episode might not justify harsh discipline. But university officials should at least be asking the right questions about what is at issue in the case.

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[Eugene Volokh] Journal of Free Speech Law: "Empowering Speech by Moderating It," by Danielle Keats Citron & Jonathan Penney

The article is here; the Introduction:

A myth of epic proportion has gained traction: that any effort to moderate online speech is a zero-sum game, with free expression as the loser. When social media companies remove destructive posts that violate terms of service, people cry, "Censorship!" Alex Jones, founder of the far-right conspiracy news site Infowars, accused YouTube of "killing the First Amendment" after the company blocked videos that revealed maps of the homes of Sandy Hook families. This isn't just an extremist view: the Pew Research Center has found that a majority of people believe that companies are engaged in "political censorship" when they moderate content. Some legislators have made this view a cornerstone of their political philosophy. At a House Oversight and Accountability Committee hearing in February 2023, Representative Lauren Boebert denounced Twitter as a "speech overlord." To the company's former head of Trust and Safety, Yoel Roth, she angrily admonished, "How dare you" shadow-ban my posts (even though no evidence supported the claim and former Twitter executives denied it). Representative Marjorie Taylor Greene stated that Big Tech was silencing Americans. The censorship narrative has gained traction in state legislatures as well. Underlying this view is the assumption that content moderation has no upside for free expression.

The outcry is similarly strident at the suggestion that law should curtail online abuse. Online assaults that include doxing, intimate privacy violations, and threats are dismissed as weak attempts to "blow off steam." Any effort to address them is viewed as a threat to free speech. The ACLU, for instance, has adamantly opposed the passage of laws penalizing the nonconsensual disclosure of intimate images. These laws risk chilling legitimate expression, the ACLU has argued, even though the laws made clear that they would not cover matters of legitimate public interest. Under law's blighting stare, free expression is impossible.

For more than a decade, we have been interrogating these claims. Rather than vanquishing free expression, combating online abuse frees people to speak. In the face of online assaults that amount to cyberstalking or intimate privacy violations, targeted individuals stop expressing themselves. They close their social media accounts, lest perpetrators exploit those accounts to attack them. They withdraw from family and friends. If their loved ones try to "talk back" to abusers, they face terrifying online assaults themselves. Victims and their loved ones are silenced and terrorized. Research makes clear that online abuse exacts significant costs to free expression.

As our research suggests, legal and industry interventions against such abuse make space for more expression rather than less. Such interventions enable victims to speak their truths. Rather than silencing speech that deserves normative protection, law and corporate policies enable victims to trust companies enabling communications so they can reveal themselves and share their truths.

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Granted! Vacated! Remanded! This week,  IJ client Mason Murphy's retaliatory arrest claim against an officer who arrested him for walking on the wrong side of a rural road in Missouri—an offense that never results in arrest in that jurisdiction. On remand to the Eighth Circuit, Mason will now have another shot at showing that he should be able to proceed with his First Amendment retaliation claim. The GVR also means that both of the two lower court decisions to exclude allegations like Mason's (that no one else has been arrested for the same conduct) are no longer good law. (The other case of course being IJ's monumental win in Gonzalez v. Trevino in June.) Click here to learn more.

New on the Short Circuit podcast: Our annual Supreme Court preview live at UNC Law.

New on the Unpublished Opinions podcast: Short Circuit's sister podcast has its own feed and logo and everything! The latest episode dives into, inter alia, reading the cases you cite, SCOTUS special masters, riparian rights in space, and judicial namedropping.

Back when the Pledge of Allegiance was first written in the late 19th century, it was performed with the "Bellamy salute," which fell out of favor in the mid-20th century after the Nazis adopted a similar hand gesture. But not everyone abandoned it so quickly: Kappa Gamma fraternity at Gallaudet University kept using it until the early 1990s. Following the death of George Floyd in 2020, photos resurfaced from 1989 of Kappa Gamma members using the salute, and Gallaudet's president showed the photo and described Kappa Gamma as "the face of systemic racism." The media ran with it, and some former Kappa Gamma members lost their jobs. They sued for defamation. D.C. Circuit: Calling someone racist is non-actionable opinion. Concurrence: That's what the law says, but it sucks that the university president and the media ruined these guys' careers over a 35-year-old photo. Campaign finance watchdog files complaint with the Federal Election Commission, alleging that a political group failed to register as a political committee. After almost 2 years went by with no action, the watchdog sued the FEC and then sought a determination that the agency's failure to act was "contrary to law." The district court agreed and gave the FEC 30 days to act. After 30 days with no apparent action, the watchdog sought and was granted approval to file a citizen lawsuit. FEC: But we did act; we voted that there was no reason to do anything else with the complaint. District court: In that case, citizen suit dismissed. Watchdog: No takesies-backsies! D.C. Circuit: Takesies-backsies are allowed. In "oh, whoopsie," news, New York City discovers, years into litigation and on its second trip to the Second Circuit, that it doesn't actually enforce the law plaintiffs are suing about. Second Circuit: Honestly, we'd be mad if we thought the sudden about-face was part of a cunning stratagem, but this seems like it was just workaday incompetence. Jersey boys meticulously plan a jewelry store robbery at the Jersey Gardens Mall in Elizabeth, N.J. It yields almost $900k in loot! During the robbery, one of them wore a Mets hat, stole a Yankees pendant, and pointed a gun at a store employee's head. Unfortunately for the merry band, their earlier careful installation of a stolen license plate on the getaway car was captured on surveillance video, the driver's fingerprints were all over the abandoned car, a cousin who is also a cop IDed the guy in the Mets hat, and a search of the Mets guy's bag turned up the Yankees pendant. He's convicted by a jury but in an attempt to mitigate his sentence claims it wasn't a "crime of violence." Third Circuit: Pointing a gun at someone's head is a crime of violence. In an update to the Napster-era copyright wars of your summarist's youth (not that said summarist ever violated copyrights him/herself!), major record labels sue a Texas ISP because they sent notices for years that specific customers were illegally sharing music, and the ISP didn't disconnect them. Jury finds for the labels, but ISP asserts it can't be liable for contributory infringement just for providing internet service. Fifth Circuit: It's a close call, but continuing to provide service to known repeat violators is enough to create liability. (However, deepening a circuit split, damages for infringed works should be calculated on a per-album rather than per-song basis.) Does an Ohio law banning "foreign nationals" from spending money to influence elections violate the First Amendment rights of lawful permanent residents? District court: Probably, and the state is preliminarily enjoined from enforcing the law against all foreign nationals. Sixth Circuit: Ohio's law serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government. Injunction stayed. Dissent: Compelling interest? Sure. Is Ohio's law sufficiently tailored to that interest? Nah. If a court is considering a defendant's claim that the federal ban on domestic-violence misdemeanants possessing firearms violates the Second Amendment, it's not a good sign for him if it begins the fact section by asserting he "is a serial perpetrator of domestic violence." Thus, the Sixth Circuit upholds the law even in light of Bruen. OK, fine, but what about a defendant who is merely under a pending felony indictment and—get this—also raising a Batson challenge because the prosecutor struck the only Black juror? Sixth Circuit: It's an excuse for us to outline some interesting colonial history about pretrial detention. But you still lose. Allegation: At George Floyd protest in Detroit, police arrest and ticket a group of protesters who were blocking the street and refused orders to move to a sidewalk. They also arrest and ticket a protestor who was on the sidewalk. District court: A reasonable jury might decide he was ticketed just for being at a protest and in retaliation for his beliefs, not for any supposed infractions. Sixth Circuit (over a dissent): Meh, the ticketing officer's supervisor told him to write the ticket, and on the spectrum of blindly-following-unconstitutional-orders (which is bad) to reasonably-following-plausible-instructions (which is okay), this was more like the latter. Denial of QI reversed. Ninth Circuit (unpublished): Interrogate a traveler about their religious convictions once, shame on you. Interrogate travelers about their religious convictions ten times, you've got yourself an officially sanctioned pattern or practice. Montana healthcare providers seek to enjoin a state statute forbidding them from discriminating on the basis of vaccination status, claiming it violates the ADA, OSHA, and equal protection. District court: You win on all three! Ninth Circuit: These were facial claims and that means the law must be void in all circumstances and there's no evidence to support that. Reversed. Concurrence: Facial challenges are weird. After Aurora, Colo. city councilwoman criticizes the police chief, the police chief's partner, a county social worker, calls in a bogus, anonymous tip that the councilwoman is sexually abusing her minor son, triggering an investigation that the social worker then tries to have assigned to herself. Which results in criminal liability for the social worker. Tenth Circuit (unpublished): But no civil liability for social worker or the county. Florida affiliate of Moms for Liberty sues the Brevard County School Board, alleging that restrictions on comments at school board meetings that are "abusive," "personally directed," or "obscene" violate the First Amendment. Eleventh Circuit: "Because the first prohibition was viewpoint based, the second was both unreasonable and vague, and the application of the third was (at a minimum) unreasonable, these policies are unconstitutional." 2020: Florida enacts bill redefining the crime of "riot." Civil-rights groups sue, saying new definition violates First Amendment by sweeping in purely peaceful protesting at a demonstration where other people become violent. Eleventh Circuit (2023): Could the Florida Supremes let us know what this law actually means? Florida Supreme Court (2024): Someone must intend to commit or assist violent disorderly conduct to be guilty of rioting. Eleventh Circuit (2024): Phew, with that narrowing construction, the law is OK.

Qualified immunity denied! Last year, police in Marion, Kan. used bogus warrants to raid the offices of a local newspaper, the home of the newspaper owner, and the home of a city councilwoman who'd been critical of the mayor. This week, we're happy to report that a federal judge declined to shield the police chief and his officers from accountability, allowing the case against them to proceed past a motion to dismiss. The judge also ruled, however, that the (now-former) mayor cannot be held responsible for the raid that he ordered because he did not personally execute it, which we look forward to challenging on appeal. Onward! Click here to learn more.

Qualified immunity denied! In 2021, Fort Bend, Tex.'s sheriff excluded independent journalist Justin Pulliam from a press conference, claiming Pulliam was not "media." A few months later, deputies arrested Justin while he was filming their activities, falsely claiming he was "interfering"—part of a pattern of retaliation against Justin for his journalism. But now we're happy to announce that a federal judge has granted summary judgment against the sheriff and the county (final judgments on the merits) for violating Justin's rights at the press conference—and ordered a trial over the arrest. Onward! Click here to learn more.

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[Jonathan H. Adler] The Appointments Clause Goes Fishing

Under the Magnuson-Stevens Act, Regional Fishery Management Councils are tasked with developing and revising fishery management plans to help ensure that offshore fisheries are utilized sustainably. A council's proposals are subject to approval and revision by the Secretary of Commerce, but councils retain the ability to block or veto certain actions by the Secretary. Council members are appointed by the Secretary of Commerce.

After the Mid-Atlantic Council adopted a plan lowing the catch limits for certain fish species, commercial fishermen sued. Among other things, they argued that council members are "officers of the United States" under Article II. And, since council members are not appointed by the President, the fishermen argued, they should not be able to adopt such regulations.

In Lofstad v. Raimondo, a divided panel of the U.S. Court of Appeals for the Third Circuit agreed with the fishermen that council members are officers, but not with regard to the remedy sought. Judge Stephanos Bibas wrote for the court, joined by Judge Freeman. Judge Rendell dissented.

Judge Bibas summarized his opinion:

The buck stops with the President—but not when unelected officials get a veto. Under a federal fishing law, a Regional Council can veto some actions taken by the Secretary of Commerce. That power is significant. But the Council members were never appointed by the President, as the Constitution requires. Two fishermen rightly challenge this scheme. The remedy, we hold, is to sever the pocket-veto powers so the Council plays only an advisory role.

According to Judge Bibas, the council's ability to block regulatory actions by the Commerce Secretary represents the sort of significant authority that makes a government actor an "officer" for constitutional purposes.

The Council's pocket-veto power is especially significant because it undermines the democratic chain of command. The Constitution trusts the President with significant powers, like the veto, because he is elected and accountable to the voters. Executive officers below the President are not. So they must be "accountab[le] to the public through a clear and effective chain of command down from the President, on whom all people vote." Arthrex, 594 U.S. at 11 (internal quotation marks omitted).

The Council's pocket-veto powers thwart that chain of command. The Council need not reflect the President's views because it is an advisory body. But the Secretary of Commerce, who heads the Department of Commerce, answers to the President and the people. And Council members can refuse to let her set up limited-access fisheries, delegate to states, or repeal a plan. By blocking her actions, the Council wields significant authority. And no one can override the Council's pocket veto (unlike the President's limited veto). That is enough to make Council members officers, not employees.

The council members are also "principal officers" because their veto authority is final and unreviewable, and can countermand the decision of a cabinet secretary. The council's other powers, however, are not of constitutional significance.

Finding a constitutional problem with the structure of fishery regulation under the Magnuson-Stevenson Act, the next question for the court was the proper remedy—and here the court gave the petitioners less than they were hoping for.

The fishermen ask us to invalidate the amendment. But we need not go so far. When a statute is constitutionally flawed, "we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact." Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508 (2010) (internal quotation marks omitted). Even though this statute has no severability clause, we can sever an unconstitutional provision unless Congress evidently would not have passed the remaining parts without the invalid ones. Id. at 509. To figure this out, we look at the statute's text and historical context. Id.

Even if we knock out the pocket vetoes, the statute remains "fully operative." Id. (internal quotation marks omitted). The Council's "most significant responsibility" is drafting proposed plans; that duty remains untouched. NRDC v. Nat'l Marine Fisheries Serv., 71 F. Supp. 3d 35, 40 (D.D.C. 2014) (K.B. Jackson, J.). What is more, the government conceded at argument that these pocket-veto provisions are rarely used and that severing them would not disrupt the statutory scheme. So we will sever the pocket-veto powers in Sections 1854(c)(3), 1854(h), and 1856(a)(3)(B). Those severances suffice to remove the Council's significant authority.

Without those powers, the Council members are mere employees who fall outside the  Appointments Clause. They did not use their unconstitutional powers to enact or tweak the amendment in this case. Their advisory role in proposing the amendment plus its implementing regulation was proper.

Judge Bibas' opinion concludes:

Executive officials who have significant authority must be properly appointed. Because the Council members were not, we sever the pocket-veto provisions that gave them significant authority. Without those powers, the Council members are no longer officers but rather employees. As employees, they need not be appointed by the President or Secretary. We will thus reverse the District Court's order granting summary judgment for the government and instead render judgment for the fishermen, relieving the  Council of its significant authority.

As noted, Judge Rendell dissented, rejecting the majority's conclusion that the councils exercise "significant authority" and lamenting the decision to "gut[] the powers given the Councils by Congress." In her view, the court should "avoid rewriting the legislative scheme," especially where (as here) binding precedent does not require it.

It will be interesting to see whether the Solicitor General seeks further review.

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[Jonathan H. Adler] The First Real Judicial Filibuster

On May 9, 2001, President George W. Bush nominated Miguel Estrada to the U.S. Court of Appeals to the D.C. Circuit. If confirmed, Estrada would have been the first Latino to serve on this court, but it was not to be.

At the time of Estrada's nomination, the Senate was split 50-50, leaving Vice President Dick Cheney as the tie-breaking vote. A few weeks later, Senator James Jeffords switched his party affiliation, handing Senate control to the Democrats, who refused to act on Estrada's nomination. As was revealed in leaked memoranda from Senate leadership and the Judiciary Committee, Senate Democrats feared confirming Estrada would set him up for a subsequent Supreme Court nomination and it would be too politically difficult to oppose the first Latino nominated to the High Court.

Republicans regained control of the Senate in the 2002 election, but Miguel Estrada would still not get confirmed. In March 2003, forty-four of the forty-nine Senators in the Democratic caucus voted against cloture, blocking full consideration of the nomination. There would be six more cloture votes on the Estrada nomination over the next six months, all of which failed. This marked the first time in our nation's history that a filibuster was used to block a judicial nomination that enjoyed majority support.

The fight over Miguel Estrada's nomination may not have attracted the same degree of attention as Supreme Court battles, but it had a dramatic effect on how many conservatives and Senate Republicans viewed the judicial nomination process—and led to the regular use of cloture as a means of slowing or blocking judicial nominees. Prior to Miguel Estrada, it had never been the case that a judicial nominee had been required to have the support of 60 Senators to be confirmed.

Prior to the Estrada nomination, it was unusual for a cloture vote to be required, and the sole time a cloture vote had failed and a judicial nomination was unsuccessful*, the nominee in question (Associate Justice Abe Fortas who had been nominated to be Chief Justice) faced bipartisan opposition and lacked majority support. (Indeed, many saw the cloture vote as a test to see whether 50 Senators would support him—a test Fortas failed.) 1968 was the first time a cloture vote had ever been requested for a judicial nominee, and such votes remained a rarity for the next thirty-five years. Judges opposed by forty-some Senators were the exception, to be sure, but they were also routinely confirmed. (I have surveyed this history before, and also recommend this CRS Report on the subject.)

The Estrada filibuster marked a dramatic escalation in judicial nomination obstruction—and that escalation was ratcheted up further when, after Senate Republicans filibustered Democratic nominees, Senator Majority Leader Harry Reid forced through a reinterpretation of Senate rules to preclude filibusters for judicial nominations (the so-called "nuclear option"). Filibusters were apparently only to be allowed for Republican nominees.

The latest installment of Ed Whelan's highly informative Confirmation Tales series revisits the Estrada nomination, and how it poisoned the well for comity and cooperation on judicial nominations, with an interview of Steven Duffield. who worked for the Senate leadership at the time. Among other things, Duffield recounts how Senate Republicans lacked the votes to "go nuclear" at the time (though fear that they might get to 50 votes for a rule change ultimately led to the "Gang of 14" deal to temporarily set the filibuster aside), and how the judicial confirmation battles of the 2000s established a new norm under which it was appropriate to oppose a judicial nominee for no reason other than disagreement with his or her judicial philosophy. (For more on this history, see this post and the links therein.)

From the Duffield interview:

Just as we warned at the time, the Democrats' decision to filibuster the Estrada nomination was a major inflection point, both in the confirmation wars and in the history of the Senate more broadly.

Let's start with the confirmation wars. The filibuster fundamentally changed the expectations regarding how senators in the party opposite the president's party would assess lower-court nominees: the fight over judicial philosophy was now front and center.

The question of "competence" versus "ideology" (or "judicial philosophy") was still being hotly contested in the early 2000s. Senator Orrin Hatch, who had famously supported Bill Clinton's nomination of Ruth Bader Ginsburg to the Supreme Court, tried valiantly to convince senators that, except in truly extraordinary circumstances, the core question should be competence. It's a battle he was already losing when Estrada was nominated, and we saw it die altogether during 2003. It's now a relic of the past. . . .

The animosity and the frustration with a party-wide assault on comity and cooperation have certainly migrated into other areas, with a tit-for-tat environment that has made the Senate far weaker as an institution than it was or than it should be. People might hate the "club" culture of the old Senate, but is this better?

It is deeply regrettable that a handful of activists were able to persuade the filibustering senators that it was better to unravel the Senate's messy but still-effective ecosystem than to do the hard work of persuading their Republican colleagues to oppose the nominees on the merits. We have a far less productive Senate today because of those judgment errors in 2003.

There are several more Confirmation Tales posts on the Estrada nomination and inauguration of the filibuster as a means of blocking confirmation, and they are largely consistent with a point I have often made on this blog: There was no meaningful history of filibusters, or even cloture votes, prior to the Estrada nomination, and the use of a filibuster to block a highly qualified, broadly esteemed nominee who enjoyed bipartisan, majority support, was a major turning point in judicial confirmation battles. Indeed, it is quite possible that had Miguel Estrada been confirmed, we would have a more functional Senate, and Merrick Garland would be a Supreme Court justice instead of Attorney General.

*Update: I revised this sentence to note there were two instance between 1968 and 2003 in which cloture votes failed, but the nomination proceeded and the nominee was confirmed. This occurred with the 1971 nomination of William Rehnquist to the Supreme Court (whom some Senate Democrats attempted to filibuster when he was nominated to be Chief Justice as well) and the 1999 district court nomination of Ted Stewart, who was subsequently confirmed 95-3.

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[Curtis Bradley] New Book on Historical Gloss and Foreign Affairs, Part V

This is the fifth of five posts about my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. In the last several posts, I discussed examples of foreign affairs authority that have been heavily informed by historical practice. In this post, I address the concern that the historical gloss approach to constitutional interpretation unduly favors presidential authority.

The three examples that I've covered in my prior posts all involve a growth of presidential foreign affairs power over time, and, as I discussed in those posts, historical gloss is a mainstay of the executive branch's constitutional reasoning.

As compared with Congress, the executive branch also has an easier time creating non-judicial precedent, given that it is controlled by a single party and faces lower collective action hurdles. Not surprisingly, therefore, the most common objection to a gloss-based approach to the separation of powers is that it enhances executive power.

One difficulty in assessing this objection is that it is not clear what the baseline should be in determining whether the executive has too much foreign affairs power. Should it be the amount of authority that George Washington had (or thought he had)? There are some obvious problems with using that as the baseline, including the fact that the Washington administration was itself unsure about the scope of its foreign affairs powers and Washington was conscious that he was setting non-judicial precedent that might become historical gloss.

It is certainly true that, in the aggregate, modern presidents have more foreign affairs authority than earlier presidents. Much of this development is probably due to factors other than the accretion of practice: having access to a large standing army, for example, as well as being the head of state of a powerful country with diplomats and intelligence operatives around the world. Some of it also stems from changes in public and congressional expectations about the presidency.

Whatever the causes, it is not self-evident that the growth in executive authority is bad, given that the foreign affairs challenges that the United States faces in the modern era are substantially different from those of the late eighteenth century. The biggest single contributor to gloss-based presidential authority was probably Franklin Roosevelt, yet many regard him as one of our best presidents.

It is also worth bearing in mind that many presidential actions in foreign affairs today (the imposition of sanctions, the enforcement of immigration policies, the provision of foreign aid, and the making of congressional-executive agreements, to name just a few examples) are connected to statutes, so it is not as if Congress is absent from the picture. As Jack Goldsmith and I recently observed in an article about the effect of the nondelegation doctrine in foreign affairs, "Despite the perennial debates about the President's constitutional authority, most important actions that presidents take today, including in foreign affairs, rest at least in part on statutory authorization."

In any event, as my book discusses, Congress also benefits from gloss. That is, practice has helped to settle some of its authority in the foreign affairs area, even though that authority is not clear from the constitutional text.

To take just a few examples, practice has supported Congress's power to regulate U.S. neutrality (since 1794), the Senate's power to condition its consent to treaties with "reservations" (since 1795), Congress's power to regulate passports (since the 1850s), and Congress's power to regulate immigration (since the 1870s).

Gloss also suggests that there are some foreign affairs actions that presidents cannot do on their own. This includes, for example, extraditing criminal suspects to other countries, imposing trade restrictions, deporting non-U.S. citizens, and funding foreign affairs initiatives.

Moreover, as I emphasize in the book, historical gloss is usually supportive only of independent presidential authority, not exclusive authority (that is, authority that cannot be regulated by Congress). There is often practice indicating that presidents can take actions in foreign affairs, but almost never much practice showing that Congress cannot regulate those presidential actions.

In fact, to take the three examples that I've discussed in my posts, Congress has at times regulated executive agreements, treaty terminations, and war powers. It may be that, in the modern era, a broad presidential power of initiative that is subject to congressional restriction is a good (or at least acceptable) approach.

As I emphasize in the Conclusion of the book, Congress is an important player in foreign affairs:

Congress, no less than the President, seeks practical and principled constructions of the Constitution that are informed by the lessons of the past. Indeed, given the frequent claims of an imperial presidency, it is easy to forget that Congress regulates today across a vast spectrum of foreign affairs topics, and its ability to do so is informed by practice. In many instances, to be sure, Congress chooses to delegate discretionary authority to the executive branch, but what is delegated can be withdrawn or cabined.

I acknowledge in the book that our system of checks and balances does not always work well, but I contend that the picture is not as bleak as is sometimes suggested:

[E]ven our partisan-laden system can and sometimes does produce needed separation of powers reforms. There was a spate of such reforms, for example, near the end of the Vietnam War. As I was working on this book, Congress enacted its most sweeping transparency reforms relating to executive agreements in the past fifty years. Far from impeding such efforts, the historical gloss approach to constitutional interpretation invites them.

Finally, I note that critiques of historical gloss tend to be highly selective, and I argue that it is important to consider the larger picture:

It is hard to imagine what our constitutional law would look like without gloss, were that even possible. In the foreign affairs area, if presidents had not developed gloss-based authority, perhaps they would terminate fewer treaties and engage in fewer military actions. And perhaps that would be good, although it is worth noting that, since the Korean War, the two U.S. wars that are generally viewed as the most problematic in terms of their foreign policy justifications and their costs to the United States—the Vietnam War and the 2003 Iraq War—were both authorized by Congress. But it might also mean that presidents would make many fewer international agreements, including important agreements facilitating trade and establishing international institutions, and that U.S. uses of force in the service of international peace and security, including humanitarian intervention, would be less likely. The fact that it is difficult even for informed experts to have confident judgments about such matters is a reason for courts to be cautious about upsetting settled practices.

 

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[Josh Blackman] Today in Supreme Court History: October 11, 1972

10/11/1972: Roe v. Wade argued.

The Burger Court (1972-1975)

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[Stephen Halbrook] Second Amendment Roundup: The VanDerStok Argument

Pundits have tried to read the tea leaves following the argument in the Supreme Court in Garland v. VanDerStok on October 8.  In its Final Rule, ATF expanded the definition of "firearm" beyond what Congress provided in the Gun Control Act (GCA), and it expanded the definition of "frame or receiver" beyond the agency's own definition that was on the books since 1968.  In the argument, serious questions were raised about the extent to which an agency may revise a criminal statute.

That concern was expressed right at the beginning when Justice Thomas asked Solicitor General Prelogar whether the regulation "cover[s] all of Chapter 44," which is the GCA portion of 18 U.S.C. (the federal criminal code), and whether it "appl[ies] under 924," which is the GCA section that provides criminal penalties.  Prelogar's response was "yes" to both.  So whether a person is committing a felony depends on whether the more narrow definition of "firearm" enacted by Congress, or the broader definition adopted by ATF, applies.

Justice Kavanaugh probed in detail into the implications of the agency's expansion of the reach of the criminal law.  Expressing concern about mens rea, he noted that "this is an agency regulation that broadens a criminal statute beyond what it had been before."  "So what about the seller," he asked "who is truly not aware … that they are violating the law and gets criminally charged?"

Prelogar responded that the requirements of having a license and of serializing firearms are subject to a "willfulness" requirement (see § 924(a)(1)(D)), but not conducting a background check only requires "knowledge" (§ 924(a)(5)).  Under the "knowing" standard, a person need not know of a legal duty but simply knows that he didn't conduct the background check.

But not to worry, Prelogar assured the Court, "on the background check, if you have a seller out there who wants guidance about whether, with respect to particular types of products, … the person can seek a classification from ATF."  But that presupposes that you even know to ask for a "mother may I" classification letter from ATF.  And as persons in the industry are painfully aware, ATF may take up to a year to issue a letter, if it responds at all.  More fundamentally, that presupposes that the agency itself, rather than the statute, determines what is lawful.

So, Justice Kavanaugh continued, "you truly believe you're not violating the law, could you be charged under that provision?"  Prelogar responded: "As a theoretical possibility, I think only with respect to background checks, it's possible you could…. I don't think the government would be likely to charge someone in that kind of situation."

That's an extremely naive assurance.  Why would ATF not cause the prosecution of a person merely because he "truly believed" he was not violating the law?  Countless persons have been subjected to GCA prosecutions without any regard to whether they understood the requirements of the law or, even more so, ATF's complex regulations.

While many federal prosecutors use good judgment in whether to initiate prosecutions, there are plenty who are interested in their batting average.  In U.S. v. Moore, recently decided by the Eleventh Circuit, Judge Barbara Lagoa wrote that the defendants in that case "are felons for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in."  But the assistant U.S. attorney, "taking a page out of Inspector Javert's playbook," secured an indictment and got his conviction.  You'll recall the inspector from Victor Hugo's Les Misérables, who relentlessly persecuted anyone he could.

So Prelogar's assurance about persons caught up in the maze of ATF's regulations not being prosecuted rings hollow.  One more exchange with Justice Kavanaugh bears attention.  He referred to "a lot of classification letters that were out there, this was to collect everything and put everyone, as you say, on notice."  What was perhaps unknown is that, when it adopted the Final Rule, ATF repudiated the validity of all of its prior classifications, wiping out a half century's worth of interpretations on which the industry and the public relied.  As 27 C.F.R. § 478.12(f)(2) states:

Prior determinations by the [ATF] Director that a partially complete, disassembled, or nonfunctional frame or receiver, including a parts kit, was not, or did not include, a "firearm frame or receiver" … as those terms were defined prior to April 26, 2022, shall not continue to be valid or authoritative after that date. Such determinations shall include those in which the Director determined that the item or parts kit had not yet reached a stage of manufacture to be, or include, a "firearm frame or receiver"….

That alone refutes the argument that ATF was continuing to follow what it had always done.  The meanings of "firearm" and "frame or receiver" became a tabula rasa by administrative decree, uninformed by fifty-two years of usage.  And yet Prelogar asserted in her opening statement that the Final Rule is "consistent with how ATF has interpreted and implemented the Act across five decades and 11 different presidential administrations."

To Prelogar's suggestion that the Final Rule simply extended the past regulations, Justice Kavanaugh responded: "Some expansion. Some expansion."  Prelogar responded, "only with the addition of looking at jigs."  But that too was a great leap forward.  Never before had ATF considered jigs, tools, and blueprints to be among the parts from which a firearm may be fabricated.

As he has done repeatedly in other cases, Justice Gorsuch was concerned about "lenity, notice."  And he called attention to the government's summary judgment brief in Syracuse v. ATF, No. 1:20-cv-06885 (S.D. N.Y. 2021), representing that "an unfinished frame or receiver does not meet the statutory definition of 'firearm.'" Prelogar responded that "ATF has always looked at whether a partially complete frame or receiver can be brought to functional condition quickly, easily, and efficiently."  But the Final Rule goes far beyond that.

One of the several elephants in the crowded room is that the definition of "firearm" in § 921(a)(3)(A) includes a weapon that "may readily be converted" to expel a projectile, but its further definition in (B) of "firearm" as "the frame or receiver of any such weapon" includes no readily-convertible language.  And there are other contrasting definitions.  As Justice Barrett pointed out, the definitions of "destructive device" and "machinegun" "reference parts in the way that this definition [firearm] does not."  This case is about the meaning of statutory text, and the textual contrast could not be more stark.

Justice Barrett also referred to Fifth Circuit Judge Oldham's "concern that because AR-15 receivers can be readily converted into machine gun receivers, that this regulation on its face turns everyone who lawfully owns an AR-15 into a criminal."  Prelogar denied "that a statutory reference to one thing includes all other separate and distinct things that might be readily converted into the thing that's listed in the statute itself."  But the problem is that "machinegun" is also defined to "include the frame or receiver of any such weapon" (26 U.S.C. § 5845(b)), and it only takes drilling two holes to convert a semiautomatic receiver into a machinegun receiver.  Prelogar added that ATF "has never suggested that AR-15s, standing alone, are regulated machine guns."  True enough, but that could change, just as the Final Rule here obliterated decades of prior understandings.

If a statute restricted shorts, Prelogar analogized, it would not regulate a pair of pants, "even though the pants could be readily converted into shorts."  And if the person possesses a pair of scissors?  The scissors would be equivalent to the tools and jig here.

Justice Jackson asked about how the government phrased the question presented in this case as whether certain items are "firearms" within the meaning of the statute. That framing "doesn't seem to account … for the actual claim that the challengers have made here, which is that the agency has exceeded its statutory authority."  And that issue reduces to whether the agency can, by regulation, criminalize conduct that Congress has not criminalized.

On behalf of the respondents, Peter Patterson posed the clear statutory argument, but as an alternative offered ATF's pre-Final Rule test of "whether critical machining operations had taken place."  Justice Barrett asked: "So would you say that it's like the ordinary usage? Now everybody just understands based on long standing practice that this critical machining test is the point at which the frame or receiver [comes into being]?"  Patterson agreed.

That scenario could be where the Court decides the case.  It will obviously focus on statutory text.  Congress defined "firearm," and just last term, in Dep't. of Agriculture Rural Dev. Rural Housing Service v. Kirtz, the Court wrote: "When Congress takes the trouble to define the terms it uses, a court must respect its definitions as 'virtually conclusive.'" But the Court may also take comfort in respondents' alternative position, which incorporates a general rule about critical machining operations that ATF followed before it adopted the Final Rule, and to which the industry and the public were accustomed.

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