Eugene Volokh's Blog, page 276

[Ilya Somin] My Forthcoming Article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson"

[The forthcoming Cato Supreme Court Review article is now available on SSRN. It critiques the Supreme Court's decision in the Trump Section 3 disqualification case.]

My forthcoming Cato Supreme Court Review article, "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson," is now available on SSRN. Here is the abstract:

In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the Court ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy.

Section 3 states that "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.

In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for "insurrection." Part III considers the question of whether the January 6 attack qualifies as an "insurrection," and—more briefly—whether Trump "engaged" in it. The answers to both questions are "yes," though the second is a closer call than the first. Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court's effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.

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[Eugene Volokh] Court Dismisses Lawsuit Over Non-Renewal of Stanford Lecturer Who Conducted "Exercise" on Oct. 10 Allegedly Targeting Jewish Student

Here are plaintiff's factual allegations, as reported in Monday's decision by Judge Jacquelyn Scott Corley (N.D. Cal.). in Loggins v. Leland Stanford Jr. Univ.:

Dr. [Ameer Hasan] Loggins is a "black, African American, Muslim male[.]" He earned his doctorate degree from the University of California at Berkeley in 2019. Stanford hired him as a lecturer in August 2023.

On October 10, 2023, Dr. Loggins led two Stanford class discussions on settler colonialism and sought "to have a difficult dialogue" about "dehumanization, Israel, and Palestine." He "wanted the focus to be on the Palestinian civilians. [Dr. Loggins] also wanted to complicate the ways in which many frame the Israel and Palestine 'conflict,' which is through the frame of Jewish people vs. Muslim people." So, Dr. Loggins "asked whether any Jewish students were present in the classroom, in an effort to speak to the diversity within the Jewish diaspora and to demonstrate to the students that the Jewish diaspora is not one with a monolithic politic."

Dr. Loggins then led an "exercise to create a scene within a scripted space" wherein he selected two students "(one white/Jewish male and one woman of Asian descent)" in each class section based on their seat and "physical size to illustrate a power differential between the large and the small, the oppressed and the oppressor." After the selected students agreed to participate in the exercise, Dr. Loggins took their backpacks and computers and directed them to stand facing the classroom window. Dr. Loggins told the participating students they could come from facing the window if they could produce identification. The purpose of the exercise was to illustrate "profiling and policing within a scripted space." Dr. Loggins asserts Gaza "is an extreme version of a scripted space."

The next day, Defendants Professor Dan Edelstein, Human Resources Director Elizabeth Soroka, and Professor Parna Sengupta accused Dr. Loggins of antisemitism based on the classroom discussions. Defendants Edelstein, Soroka and Sengupta launched an investigation into Dr. Loggins's conduct and suspended him with pay with Stanford's approval. The same day, Defendants then-President Richard Saller and Provost Jenny Martinez released a statement publicizing Stanford's investigation and suspension of Dr. Loggins, though the statement did not identify Dr. Loggins by name.

On March 1, 2024, Defendant Feigelis, a post-doctoral researcher at Stanford, identified Dr. Loggins as one of Stanford's "most racist faculty member[s]" when speaking at a roundtable hosted by the U.S. House of Representatives' Committee on Education and the Workforce. During the roundtable, Defendant Feigelis published an image claiming Dr. Loggins segregated and publicly shamed Jewish students in his classroom, among other things.

On March 25, 2024, Stanford reported their investigation into Dr. Loggins's classroom discussions "did not support a finding that [Dr. Loggins] intentionally or objectively discriminated against any of the students." Despite the conclusion of Stanford's investigation, Stanford and Defendant Professor and Senior Associate Dean R. Lanier Anderson declined to extend Dr. Loggins's employment contract.

And here is an excerpt from the account in Stanford's motion to dismiss:

Plaintiff was a lecturer in the Stanford Introductory Studies ("SIS") program. On October 10, 2023, he chose to devote his class (in two sections) to the Hamas attack on Israel three days earlier.

By his own account, Plaintiff organized these classes around the theme of "settler colonialism." He called attention to the plight of Palestinian civilians and said he did not "condone the loss of innocent lives," but he does not otherwise claim to have mentioned the hundreds of Israelis who had just been killed, raped, or kidnapped. He asserted that the Holocaust claimed fewer lives than Belgian rule in the Congo and compared it to alleged genocides in the United States, Australia, and elsewhere. At one point he "asked whether any Jewish students were present in the classroom." He asked two students, "one white/Jewish male and one woman of Asian descent," to surrender their backpacks and computers, stand facing the window, and produce identification as a condition of returning to their seats. "The purpose was to do an exercise on profiling and policing within a scripted space."

Even students who later came to Plaintiff's defense acknowledged that "[m]aybe the classroom demonstration wasn't done in the most unproblematic of ways" and that Plaintiff's teaching methods were "easily misconstrued." Other students raised much more serious charges: that "Loggins demanded Jewish students to stand up, took their phones [and] told them to face the wall/sit in the corner;" that "Dr. Loggins was 'singling out' Jewish students;" and that "Loggins went down the line yelling at Jewish students, labeling them as colonizers." Other students denied these charges or sought to put them in context….

Loggins sued Stanford for race and religious discrimination and related claims, on the theory that "Stanford would not have investigated his class sessions, suspended him, publicly announced its investigation and his suspension, or refused to extend his contract '[b]ut for the fact that [Dr. Loggins] [is] black, Muslim and spoke out against Israeli policies that violated the Geneva Convention[.]'" But the court concluded that Loggins hadn't alleged sufficient evidence that Stanford's treatment was motivated by his race or religion. (While the treatment did appear to be motivated by his speech, Loggins hadn't raised claims under which such actions would be illegal.) Loggins still has an opportunity to file a new complaint, though, in which he would have to plausibly allege something that would be sufficiently probative of racial or religious discrimination.

Loggins also sued Kevin Feigelis for defamation, but the court rejected that on the grounds that California law absolutely protects statements "[i]n any … legislative proceeding." (This rejection took place under California's anti-SLAPP law, under which the losing plaintiff would generally be required to pay defendant's attorney fees.)

Alekzandir James Lloyd Morton, Jacob R. Sorensen, and John M. Grenfell (Pillsbury Winthrop Shaw Pittman LLP) represent Stanford and its officials; Andrew L. Schwartz, Jason Takenouchi, Joshua E. Roberts, and Lea Dartevelle represent Feigelis.

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[Jonathan H. Adler] Journalist Suppressed Evidence Pointing to Additional Conspirators Involved in Murder of Emmett Till

[Newly released documents suggest a prominent account of Till's death left out some important information.]

It is often said that journalism is the first draft of history. In the case of Emmett Till, a prominent news story about his murder was long taken as the definitive account of his death at the hands of J.W. Milam and Roy Bryant. Newly discovered documents, however, conform suspicions more people were involved in Till's horrific death.

The Washington Post reports:

A journalist whose 1956 article was billed as the "true account" of Emmett Till's killing withheld credible information about people involved in the crime, according to newly discovered documents.

William Bradford Huie's article in Look magazine helped shape the country's understanding of 14-year-old Till's abduction, torture and slaying in Jim Crow-era Mississippi. The article detailed the confessions of two White men who previously had been acquitted by an all-White jury in the killing. The men told Huie they had no accomplices.

Yet Huie's own research notes, recently released by the descendants of a lawyer in the case, indicatehis reporting showedthat others were involved andsuggest he chose to leave that out when it threatened the sale of his story. He also was seeking a movie deal about the killing and had agreed to pay the two acquitted men, J.W. Milam and Roy Bryant, part of the proceeds.

If Huie had fully reported what he'd learned, it could have led to charges against additional participants in the murder, three historians say.

As the Post report indicates, many had believed that additional people participated in Till's murder, but the Look story deflated efforts to pursue additional conspirators.

Black journalists had been pressuring Mississippi officials and the FBI to investigate and charge additional suspects in the case. Huie's "true account," with its assurance that only two men were involved and its depiction of Till as a defiant brute, effectively ended that effort.

"This confession, as it was touted, suddenly seemed enough to satisfy everybody," said Devery S. Anderson, author of a 2015 book on the Till case. If Huie had reported everything he had learned, "it's possible these other people would have been indicted," Anderson said, though he also said they could have been acquitted.

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[Jonathan H. Adler] Justice Jackson Shares Her Concerns about Trump Immunity Ruling

[In the same week that Jack Smith refiles his Trump Indictment, Justice Jackson talks about the SCOTUS decision that made refiling necessary.]

Justice Jackson's memoir, Lovely One, hits bookstores next week. To promote the book (for which she reportedly received a nearly $900,000 advance), Justice Jackson sat down for an interview with Norah O'Donnell of CBS News.

Jackson, in an interview with "CBS Evening News" anchor and managing editor Norah O'Donnell, suggested the ruling gives Trump special treatment compared to anyone else in the criminal justice system.

"I was concerned about a system that appeared to provide immunity for one individual under one set of circumstances, when we have a criminal justice system that had ordinarily treated everyone the same," she said. . . .

Interestingly enough, this interview dropped the same week that Special Counsel Jack Smith refiled his indictment against Donald Trump for his attempts to overturn the 2020 election.

Justice Jackson also addressed the prospect of more election litigation.

Asked whether she was prepared for cases relating to the upcoming election to end up before the Supreme Court, Jackson replied that she is "as prepared as anyone can be."

"I think there are legal issues that arise out of the political process. And so, the Supreme Court has to be prepared to respond if that should be necessary," she said.

Based on the short clips that have been released, and CBS News' reporting, it appears that Justice Jackson is being fairly circumspect in what she says about the Court's work, and not saying all that much that cannot be gleaned from her opinions. If so, that is probably a good thing (and much better than what we sometimes saw from the late Justice Ginsburg).

CBS will air the full interview will air this weekend.

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[Josh Blackman] Today in Supreme Court History: August 29, 1967

8/29/1967: Justice Neil Gorsuch's birthday.

Justice Neil Gorsuch

 

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[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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:@WilliamBaude: Executive Power Scholarship: A Three Level Problem

[Reflections on that Twitter dust-up.]

I: The Object-Level Scholarly Debate

One of the oldest questions of constitutional law is whether, and to what extent, the President has the power to remove other executive branch officials; as well as whether, and to what extent, Congress has the power to regulate or restrict any such power. It dates back to congressional debates in 1789, the impeachment debates of Andrew Johnson, and Supreme Court cases from Myers v. United States, to Humphrey's Executor v. United States, to Seila Law v. CFPB.

Another one of the oldest questions of constitutional law is whether, and to what extent, the Constitution's vesting of "the executive Power" in "a President of the United States of America" includes various powers not specifically enumerated elsewhere in Article II. The two questions are different, but they overlap, because one of the strongest arguments for an executive removal power is the argument that appointment and removal of executive officers was understood as an executive power even without being specifically enumerated.

The scholarly debate about these questions has been rich and keeps getting richer. Two recent articles by Professor Julian Davis Mortenson, The Executive Power Clause, and Article II Vests the Executive Power, Not the Royal Prerogative, (also guest-posted on this blog) address the second question, and argue against a robust reading of unenumerated or residual executive power; in various formulations, they describe the executive power as being limited to "law-execution," or as being an "empty vessel," containing only the powers vested by other laws.

Meanwhile, Professors Aditya Bamzai and Saikrishna Prakash recently published an article, The Executive Power of Removal, that addresses the first question. They argue that the executive power did include the power to remove other executive branch officials, and that Congress's ability to regulate this power is limited. Professors Andrea Katz and Noah Rosenblum published a somewhat sharp response to Bamzai & Prakash (Removal Rehashed). Bamzai & Prakash have now published a somewhat sharp reply to Katz & Rosenblum (How to Think About the Removal Power).

Along the way, Katz & Rosenblum argued that Mortenson's work refutes Bamzai & Prakash's, because if the executive power is an empty vessel, limited to law-execution, it would seem not to include a removal power. On the other hand, Bamzai & Prakash reply, there is an ambiguity in how to understand Mortenson's thesis (and the evidence on which it relies). Mortenson's articles do not specifically address the removal question, and they allow the possibility that the law-execution conception of the executive power might include an appointments power (as some evidence suggested). If the law-execution conception of the executive power included an appointments power, because the power to appoint was incidental to law-enforcement it might (or might not) also include a removal power.

Bamzai & Prakash believe this to be part of a broader ambiguity in Mortenson's thesis. The idea that executive power is an empty vessel, and the idea that it is limited to enforcing the law, are very similar and one could argue that they are two appendages of the same elephant. Maybe they are. But how should we think about, for example, a law that says that the President should not be the one to enforce it? One could say that the President cannot enforce such a law, because executive power is an empty vessel; or one could say that the President can enforce such a law, because the one executive power is the power of law enforcement.

The question of what to think about a law that says that the President cannot remove other officials who enforce the law is related. Perhaps the one executive power is the power of law enforcement, including the power to superintend those who enforce the law; or perhaps Congress has the power to say that the President cannot superintend law enforcement in various cases. Bamzai & Prakash thus argue that Mortenson's articles do not refute their thesis.

II: The Twitter Debate

This last piece of the exchange provoked unusually sharp responses on Twitter/X from Mortenson, who described Bamzai & Prakash as "selling false descriptions of [his] work," and wrote that "other responsibilities trump the obligation to be kind." He believes that their misunderstanding of his work cannot reflect a serious and sophisticated attempt to engage with it: "at best, these are the criticisms of people who didn't go beyond control F at second best, these are the criticisms of busy, careerist, disengaged, and incurious interlocutors at third best, these are the criticisms of 11th grade debaters at nationals." His more recent tweets have turned the temperature up still higher. Professor Jed Shugerman also joined in with a series of posts.

These reactions in turn produced a lot more responses both on and off of Twitter, as well as a lot of meta-commentary that something unusual and heated seemed to be going on among con law scholars. (No links for this paragraph, sorry.)

My view is that this turn has been unhelpful, and indeed unjustified. It may well be that Katz & Rosenblum (along with many many other scholars before them) have the better view of the removal question. And it may well be that there is a clear answer to the question of how the empty vessel thesis relates to Congress's power to regulate or restrict the enforcement of the law. It might even be true that the answers to those questions could have been divined by a more careful reader already—although I confess that I have been following this debate for many years, reasonably carefully, and I do not know the answers to them.

But the best way for legal scholars to ventilate these questions is through various forms of legal scholarship. I will say from experience that sometimes one writes a brilliant article which is completely correct but fails to convince all good-faith readers of that article. And sometimes one believes that one's brilliant article has already clearly resolved some issue, but some good-faith readers of that article somehow didn't understand what one clearly said. In those cases, it is sometimes useful to write more, to discuss ancillary sub-issues, to explain more, or more clearly, or differently. Nobody is under an obligation to respond to everybody else, or to respond on their timelines, but for better or worse, in a world of human legal scholars, this is part of how scholarship advances.

(I should add that Mortenson (and Shugerman, more on whom in a moment) has produced a number of links, screenshots, and substantive tweets getting in to the object-level issues to some extent. I found these somewhat difficult to follow, but I tried, and I didn't understand them to clarify the underlying ambiguity, about which I remain unsure.)

Finally, Shugerman's interventions also make a number of allegations about scholarly integrity, the sharing and citations of drafts, who said what to whom at conferences, and so on. In my view, these allegations are mostly misleading, and entirely poisonous. But my own judgment may be affected by the fact that I was a collateral target in one of Shugerman's earlier witch-hunts, and so I won't say more about them here.

I am a defender of law-professor-twitter, and I find it a valuable medium for discovering new work and ideas, especially outside my close circles. But this has been a bad episode for scholarly values and scholarly norms.

III: Constitutional Law in the Legal Academy

I suppose this is obvious, but part of the reason this dispute seems to have sparked such a reaction online is that there is a lot of underlying ideological tension among constitutional law professors generally, and about questions of executive power in particular. These seem to have hardened into patterns of suspicion about the legitimacy of even engaging with scholars who disagree on these issues.

As I speak to friends on both sides of this debate (offline), I hear liberal law professors express the concern that conservative law professors are careerist liars who are deceiving the courts into doing bad things to the country; and I hear conservative law professors express the concern that liberal law professors are a close-minded ideological monolith who refuse to engage seriously with counterarguments and weaponize their control over the legal academy to make up for their lack of control over the courts. Not all law professors – everybody always stresses that – but when you have written a brilliant article, and it has failed to convince everybody, and then people who read it say things about it that seem obviously dumb and wrong to you . . .  well what are you supposed to think?

This pattern is nothing new, but it is the obligation of those of us in the legal academy to resist it, and hopefully one day to shatter it. That requires careful, patient engagement on the object level. It requires careful, patient engagement on the object level even when we are convinced that our interlocutors are not as careful and patient as we are. It requires using norms of argumentation that raise the sanity waterline – norms such as evidence and logic and free inquiry, and not appeals to personal honor. And it is not something that any of us can do alone, or in ideological silos.

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[Ilya Somin] Special Counsel Jack Smith Files Revised Trump Indictment in Election Subversion Case

[The revised indicment is intended to address the Supreme Court's presidential immunity ruling in Trump v. United States.]

Donald Trump speaks at a rally in Glendale, Arizona. (Gage Skidmore/Zuma Press/Newscom)

 

Yesterday special counsel Jack Smith filed a revised, superseding indictment in the federal criminal case against Donald Trump for his attempts to overturn the results of the 2020 presidential election. The revised indictment attempts to address the Supreme Court's flawed decision in Trump v. United States, which ruled that presidents have broad immunity against criminal prosecution for "official acts," but was far from clear about exactly how far that immunity extends. On an e-mail list that we are both members of, Princeton legal scholar Kim Lane Scheppele posted a helpful summary of how the revised indictment differs from the original one, which she has kindly agreed to allow me to reprint here:

Complying with the SCOTUS immunity decision, Smith seems to have scrubbed all "official conduct" evidence from the case and presented it again before a new grand jury, which brought forth this indictment.   That move makes it more difficult for the Trump legal team to claim that the case should be dismissed because the evidence presented to the grand jury was tainted.   They've clean-teamed this all the way down. The indictment charges the same four crimes as before. But the indictment leaves out Jeffrey Clark as an unindicted coconspirator given what SCOTUS said about absolute immunity of the president in his conversations with the Justice Department. The indictment emphasizes that the other unindicted coconspirators are all PRIVATE citizens working on the campaign or as consultants.   And it makes clear that the various other actors implicated and whose testimony will be called upon at trial are NOT talking with Trump in the scope of his duties as president. Crucial elements of the case are now attributed to CANDIDATE Donald Trump and Candidate Mike Pence so that it is clear that they are not interacting as president and vice president in the relevant conversations.

The Just Security analysis by Norm Eisen, Matt Seligman and Joshua Kolb had flagged which parts of the indictment they thought would stand and which would not – and that analysis was pretty spot-on – see https://www.justsecurity.org/98457/immunity-january-6th-chutkan/ and https://www.justsecurity.org/wp-content/uploads/2024/08/united-states-v.-trump-dC-%E2-annotated-j6-eisen-seligman-kolb.pdf

For a line by line comparison of the new indictment and the original, see Allison Gill's post here. Lawfare and Jacob Sullum of Reason have also posted helpful analyses of the superseding indictment.

Will the superseding indictment survive inevitable immunity-based challenges? I think Smith makes a good case that the crimes Trump is charged with are private acts, not official ones, and that—even if official acts cannot be used as evidence (as the Supreme Court wrongly ruled), there is enough evidence against Trump to convict on all or most of the charges. Justice Amy Coney Barrett's concurring opinion in the Supreme Court decision provides additional analysis on why Trump's conduct here was private, not official (though it is notable that none of the other majority justices joined her). I also continue to believe that Trump is likely guilty on these charges and, if convicted, deserves severe punishment for reasons of both retribution and deterrence.

But the Supreme Court ruling is far from a model of clarity on several key points relevant to the case. Among other things, the line between private acts and official ones is a nebulous one. And when it comes to official acts outside the president's "core powers," it's not clear whether there is a mere presumption of immunity (which can potentially be overcome), or whether the immunity is absolute. The line between core powers and other official acts is also often unclear. Thus, it's hard to predict what will happen here, when the issues are reviewed by the trial judge, the DC Circuit and—potentially—the Supreme Court.

The one thing that is clear is that the issues are unlikely to be fully resolved before the election on November 5. If Trump wins, he will almost certainly find a way to get the charges dismissed after he takes office. If he loses, the case against him (or at least part of it) will proceed, unless courts rule that all the charges are barred by immunity. The latter scenario strikes me as unlikely, but not completely impossible.

Again, the Supreme Court's decision is vague on key points, and different judges are likely to interpret it differently. If the case returns to the Supreme Court, we may even find that the majority justices disagree among themselves on some of these questions. The ambiguities in the ruling may be a way to paper over these differences, at least for the time being. We may learn more about what the justices think on these issues, as this legal battle continues.

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[Eugene Volokh] Fifth Circuit Won't Revisit Its Earlier Precedent Holding Illegal Aliens Lack Second Amendment Rights

From yesterday's decision in U.S. v. Medina-Cantu, by Judge Carolyn Dineen King and Kurt Engelhardt:

In U.S. v. Portillo-Munoz (5th Cir. 2011), this court held that 18 U.S.C. § 922(g)(5), which prohibits an illegal alien from possessing a firearm or ammunition, is constitutional under the Second Amendment. In the present case, Defendant-Appellant Jose Paz Medina-Cantu brings another Second Amendment challenge to § 922(g)(5), arguing that Portillo-Munoz has been abrogated by the Supreme Court's decisions in New York State Rifle & Pistol Ass'n v. Bruen (2022), and U.S. v. Rahimi (2024).

We agree with the Government and hold that the Supreme Court's decisions in Bruen and Rahimi did not unequivocally abrogate Portillo-Munoz's precedent. As such, under this circuit's rule of orderliness, we are bound to follow Portillo-Munoz….

We acknowledge that there are reasonable arguments as to why Portillo-Munoz should be reconsidered post-Bruen and Rahimi. For instance, Portillo-Munoz's textual interpretation of the Second Amendment notably did not include a historical analysis, relying instead on the Supreme Court's language in Heller. And Rahimi's discussion of the term "responsible" provides some indication that the Supreme Court may, in future cases, reject other arguments that the Second Amendment's reference to "the people" excludes certain individuals. But, absent clearer indication that Portillo-Munoz has been abrogated, only the Supreme Court—or this court sitting en banc—can overturn our precedent….

Judge Jim Ho concurred in the judgment, concluding that Portillo-Munoz was indeed consistent with Bruen and Rahimi:

The defendant here contends that Portillo-Munoz is no longer good law, in light of recent decisions from the Supreme Court. But there's no basis to question our precedent.

To begin with, no Supreme Court precedent compels the application of the Second Amendment to illegal aliens—and certainly not Bruen or Rahimi. That should be the end of the matter. We should not extend rights to illegal aliens any further than what the law requires. Cf. Young Conservatives of Texas Foundation v. Smatresk (5th Cir. 2023) (Ho, J., dissenting from denial of rehearing en banc) ("Our national objectives are undercut when [we] encourage illegal entry into the United States.").

Moreover, it's already well established that illegal aliens do not have Second Amendment rights. In United States v. Verdugo-Urquidez (1990), the Court noted that "the people" is "a term of art employed in select parts of the Constitution"—namely, the First, Second, Fourth, Ninth, and Tenth Amendments. The term "refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

To be sure, Verdugo-Urquidez involved the interpretation of the Fourth Amendment, not the Second. But the Court later quoted this same passage verbatim when it was determining the proper reading of the Second Amendment in D.C. v. Heller (2008).

Illegal aliens don't qualify under the definition of "the people" set forth in Verdugo-Urquidez and Heller—not as a matter of common sense or Court precedent.

As to common sense, an illegal alien does not become "part of a national community" by unlawfully entering it, any more than a thief becomes an owner of property by stealing it.

And as to precedent, the Court has repeatedly explained that "an alien … does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law." United States ex rel. Turner v. Williams (1904) (quoted in Verdugo-Urquidez). But that's, of course, the very definition of an illegal alien—one who "attempts to enter" our country in a manner "forbidden by law." So illegal aliens are not part of "the people" entitled to the protections of the Second Amendment.

Moreover, the Court has provided further reason why it reaches this conclusion. For an illegal alien "[t]o appeal to the Constitution is to concede that this is a land governed by that supreme law." And "the power to exclude [aliens from the United States] has been determined to exist" under our Constitution. So, the Court concluded, "those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise."

Eileen K. Wilson, Carmen Castillo Mitchell, and Charles McCloud represent the government.

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[Eugene Volokh] State Bar's Ideological Statement May Violate First Amendment Rights of Dissenting Members, If It Purports to Speak for Lawyers Generally

["[M]uch of [the Oregon State Bar statement's] criticism of then-President Trump did not relate to the justice system at all—for instance, it criticized Trump for describing Haiti and African countries as 'shithole countries.'"]

From Ninth Circuit Judge Michelle Friedland's opinion today in Crowe v. Oregon State Bar, joined by Judge John Owens and District Judge William Orrick:

To practice law in Oregon, an attorney must be a member of the Oregon State Bar ("OSB"). An attorney must also pay annual membership dues, which are used to fund OSB's activities. Those activities include administering bar exams, formulating and enforcing rules of professional conduct, and establishing minimum continuing legal education requirements for Oregon attorneys. OSB also lobbies the state legislature and publishes a magazine called the Bulletin..

In the April 2018 issue of the Bulletin, OSB published two statements on "White Nationalism and [the] Normalization of Violence." The two statements were published on facing pages, surrounded by a single dark green border that was not present on the other pages of the magazine. The first statement had OSB's dark green logo on the top of the page, and it was signed by six OSB officers, including the President and the Chief Executive Officer. That statement said:

Statement on White Nationalism and Normalization of Violence

As the United States continues to grapple with a resurgence of white nationalism and the normalization of violence and racism, the Oregon State Bar remains steadfastly committed to the vision of a justice system that operates without discrimination and is fully accessible to all Oregonians. As we pursue that vision during times of upheaval, it is particularly important to understand current events through the lens of our complex and often troubled history. The legacy of that history was seen last year in the streets of Charlottesville, and in the attacks on Portland's MAX train. We unequivocally condemn these acts of violence.

We equally condemn the proliferation of speech that incites such violence. Even as we celebrate the great beneficial power of our First Amendment, as lawyers we also know it is not limitless. A systemic failure to address speech that incites violence emboldens those who seek to do harm, and continues to hold historically oppressed communities in fear and marginalization.

As a unified bar, we are mindful of the breadth of perspectives encompassed in our membership. As such, our work will continue to focus specifically on those issues that are directly within our mission, including the promotion of access to justice, the rule of law, and a healthy and functional judicial system that equitably serves everyone. The current climate of violence, extremism and exclusion gravely threatens all of the above. As lawyers, we administer the keys to the courtroom, and assist our clients in opening doors to justice. As stewards of the justice system, it is up to us to safeguard the rule of law and to ensure its fair and equitable administration. We simply cannot lay claim to a healthy justice system if whole segments of our society are fearful of the very laws and institutions that exist to protect them.

In today's troubling climate, the Oregon State Bar remains committed to equity and justice for all, and to vigorously promoting the law as the foundation of a just democracy. The courageous work done by specialty bars throughout the state is vital to our efforts and we continue to be both inspired and strengthened by those partnerships. We not only refuse to become accustomed to this climate, we are intent on standing in support and solidarity with those historically marginalized, underrepresented and vulnerable communities who feel voiceless within the Oregon legal system.

The second statement was signed by the Presidents of seven Oregon Specialty Bar Associations, which are voluntary organizations separate from OSB. It said:

Joint Statement of the Oregon Specialty Bar Associations Supporting the Oregon State Bar's Statement on White Nationalism and Normalization of Violence

The Oregon Asian Pacific American Bar Association, the Oregon Women Lawyers, the Oregon Filipino American Lawyers Association, OGALLA-The LGBT Bar Association of Oregon, the Oregon Chapter of the National Bar Association, the Oregon Minority Lawyers Association, and the Oregon Hispanic Bar Association support the Oregon State Bar's Statement on White Nationalism and Normalization of Violence and its commitment to the vision of a justice system that operates without discrimination and is fully accessible to all Oregonians.

Through the recent events from the Portland MAX train attacks to Charlottesville, we have seen an emboldened white nationalist movement gain momentum in the United States and violence based on racism has become normalized. President Donald Trump, as the leader of our nation, has himself catered to this white nationalist movement, allowing it to make up the base of his support and providing it a false sense of legitimacy. He has allowed this dangerous movement of racism to gain momentum, and we believe this is allowing these extremist ideas to be held up as part of the mainstream, when they are not. For example, President Trump has espoused racist comments, referring to Haiti and African countries as "shithole countries" and claiming that the United States should have more immigrants from countries like Norway. He signed an executive order that halted all refugee admissions and barred people from seven Muslim-majority countries, called Puerto Ricans who criticized his administration's response to Hurricane Maria "politically motivated ingrates," said that the white supremacists marching in Charlottesville, [Virginia] in August of 2017 were "very fine people," and called into question a federal judge, referring to the Indiana-born judge as "Mexican," when the race of his parents had nothing to do with the judge's decision. We are now seeing the white nationalist movement grow in our state and our country under this form of leadership.

As attorneys who lead diverse bar associations throughout Oregon, we condemn the violence that has occurred as a result of white nationalism and white supremacy. Although we recognize the importance of the First Amendment of the United States Constitution and the protections it provides, we condemn speech that incites violence, such as the violence that occurred in Charlottesville. President Trump needs to unequivocally condemn racist and white nationalist groups. With his continued failure to do so, we must step in and speak up.

As attorneys licensed to practice law in Oregon, we took an oath to "support the Constitution and the laws of the United States and of the State of Oregon." To that end, we have a duty as attorneys to speak up against injustice, violence, and when state and federal laws are violated in the name of white supremacy or white nationalism. We must use all our resources, including legal resources, to protect the rights and safety of everyone. We applaud the Oregon State Bar's commitment to equity and justice by taking a strong stand against white nationalism. Our bar associations pledge to work with the Oregon State Bar and to speak out against white nationalism and the normalization of racism and violence.

Daniel Crowe, an attorney and member of OSB, objected to the statements … [and] demanded a refund of his dues. OSB gave Crowe and other objecting members refunds for their shares of the cost of publishing the April 2018 issue of the Bulletin, plus interest. [But Crowe also sued OSB and its officers, claiming] that compulsory membership in OSB violated his right to freedom of association….

The Supreme Court has held that the First Amendment implicitly recognizes "a right to associate for the purpose of engaging in those activities" that it explicitly protects. The freedom of association "plainly presupposes a freedom not to associate." But the freedom of association (including the freedom not to associate) does not protect all "associations." Because the freedom of association is a corollary to other First Amendment rights, it only protects "associations to the extent that they are expressive." … When a mandatory association infringes freedom of association, that infringement is permissible if it "serve[s] a 'compelling state interes[t] … that cannot be achieved through means significantly less restrictive of associational freedoms." We have referred to that test as "exacting scrutiny." …

When a plaintiff challenges a requirement that he join an organization, the plaintiff can establish an infringement on his freedom of association by showing that his membership in the organization impairs his own expression. The plaintiff can make that showing if a reasonable observer would attribute some meaning to his membership—because, for instance, a reasonable observer would assume that the plaintiff agrees with the organization's articulated positions—and he objects to that meaning….

Whether a reasonable observer will attribute any meaning to "membership" alone depends on the nature of a group. Obviously, membership in a political party sends an expressive message. Even if a person takes no other action to support a political party, a reasonable observer understands that membership in the political party, standing alone, says something about the person's views. But the word "membership" is used to refer to all sorts of relationships: A person might be a member of a public library, Costco, AMC, or, back in the day, Blockbuster. Those memberships may not send any message at all.

Whether a reasonable observer will attribute any meaning to such memberships will depend on context, and there may plausibly be circumstances where membership in a group becomes expressive. But as relevant here, the bare fact that an attorney is a member of a state bar does not send any expressive message. A state bar's primary function is to license, regulate, and discipline attorneys—activities that are essentially commercial in nature. And a reasonable observer understands state bar membership to mean only that the attorney is licensed by the bar. Thus, even when the bar engages in expression, a reasonable observer ordinarily would not interpret the fact that the attorney is a member of the bar to mean that the bar's activities reflect the attorney's personal views.

That can be true even if some of the state bar's expression is not germane to the bar's regulatory purposes….

But, in the particular circumstances of this case, Crowe has shown that a reasonable observer would attribute meaning to his membership in OSB because of the Bulletin statements. OSB endorsed the Specialty Bars' statement criticizing then-President Trump and suggested that all members agreed with it.

Specifically, the formatting and content of the two statements made it appear as though OSB essentially adopted the Specialty Bars' statement. OSB made the editorial decision to publish the two statements side-by-side, surrounded by a single dark green border that was the same color as OSB's logo. And OSB's statement echoed the themes in the Specialty Bars' statement, using strikingly similar language. For example, the Specialty Bars' statement "condemn[ed] speech that incites violence" and made clear that it was referring to then-President Donald Trump's speech specifically, offering several examples. OSB's statement likewise criticized the "systemic failure to address speech that incites violence." In context, one would assume that OSB's reference to "speech that incites violence" was also referencing then-President Trump.

OSB's statement also praised the Specialty Bars specifically. OSB said, "The courageous work done by specialty bars throughout the state is vital to our efforts and we continue to be both inspired and strengthened by those partnerships." By praising the "work" of the Specialty Bars, which would presumably include the immediately adjacent statement, and describing the relationships between OSB and the Specialty Bars as "partnerships," OSB again appeared to implicitly endorse the Specialty Bars' statement. The Specialty Bars, in turn, "applaud[ed] the Oregon State Bar's commitment to equity and justice by taking a strong stand against white nationalism," and "pledge[d] to work with the Oregon State Bar." Reading those expressions of mutual praise, one would interpret the two statements to be a reflection of OSB's and the Specialty Bars' shared views.

If OSB had made clear that its own statement reflected the views of OSB's leadership—and not its members—then there would be no infringement. But OSB suggested the opposite. Although the statement said "[a]s a unified bar, we are mindful of the breadth of perspectives encompassed in our membership," it immediately implied that the contents of its statement were one thing on which all members agreed.

It did so by saying that, given that breadth of perspectives, "we" would focus on "those issues that [were] directly within our mission," which was "gravely" threatened by the "current climate of violence, extremism and exclusion." That would seem to suggest that all members agreed with what was in the statement because it dealt with topics on which there was no "breadth of perspectives." The statement reinforced that idea by using "we" and "our" throughout in a way that purported to speak for all members of OSB. For instance, it said, "As lawyers, we administer the keys to the courtroom." That could only mean all OSB members, not the six OSB officers who signed the statement.

The implication that OSB was speaking on behalf of all the attorneys it regulates was accentuated by the fact that those attorneys are called "members," as opposed to something more neutral, such as "licensees." As we have explained, the fact that a state bar refers to attorneys as "members," standing alone, does not mean that a reasonable observer would think that an attorney shares the views of the bar. But the word "member" does connote a stronger relationship than just a regulatory one, which makes it more likely that a reasonable observer would read a statement like OSB's to actually speak on behalf of the attorneys it regulates.

The Bulletin statements make this case analogous to Carroll v. Blinken (2d Cir. 1992). There, students were required to pay an annual "activity fee" to their university, part of which was used to fund a policy advocacy organization called the New York Public Interest Research Group, Inc. ("NYPIRG"). NYPIRG sought to advance "certain positions on issues of public policy," such as arms control and environmental protection, "through research, campus speakers, lobbying the legislature, intervening in lawsuits, community organizing, brochures, and other methods." According to NYPIRG's bylaws, any student who paid the activity fee was automatically a "member" of NYPIRG, and "on the strength of this by-law, NYPIRG claim[ed]" in its advocacy "to represent all students at the nineteen participating campuses."

The Second Circuit held that the automatic membership policy infringed the students' freedom of association. The court explained that "NYPIRG expressly forge[d] … a link" "in the popular mind" between its views and the students' views "when it proclaim[ed] that its 'membership' include[d] all fee paying [university] students" and when it "overtly and inaccurately claim[ed] to represent the interests of the [university] student body." NYPIRG thus "irredeemably transgressed the proscription against forced association."

Carroll counsels that if an organization trades on its membership in advancing its own views, a reasonable observer may come to (incorrectly) believe that the organization speaks for its members even though membership is mandatory, and in that circumstance, a membership requirement can infringe the freedom of association. Considering the totality of the circumstances here, OSB traded on its supposedly unified membership to bolster its own expression, fostering a misperception about the unanimity of its members' views.

Crowe has also established that the association impaired his own expression because he objects to the message sent by his membership. He testified at his deposition that he disagreed with the Bulletin statements and that he did not want to be associated with them. Crowe has thus established an infringement on his freedom of association….

Such an infringement on the freedom of association is nonetheless permissible if it survives exacting scrutiny. Under exacting scrutiny, the infringement must "serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms." The Supreme Court has observed that [the] germaneness requirement "fits comfortably" within the exacting scrutiny framework in the state bar association context because states have a strong interest in "'regulating the legal profession and improving the quality of legal services,'" as well as in "allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices." That statement indicates that when a state bar requires attorneys to associate with germane activities, that requirement survives exacting scrutiny.

{On this point, we agree with the Fifth Circuit, which has held that "[c]ompelled membership in a bar association that is engaged in only germane activities survives [exacting] scrutiny." McDonald v. Longley (5th Cir. 2021). But we disagree with the Fifth Circuit's holding that if a state bar engages in nongermane activities, compelled membership is necessarily unconstitutional. See also Boudreaux v. La. State Bar Ass'n, 86 F.4th 620, 632-34 (5th Cir. 2023) (holding that a state bar violated its attorneys' right to freedom of association by, among other things, tweeting about the health benefits of eating walnuts and promoting a holiday charity drive). As we have explained, in many circumstances, membership in a state bar, standing alone, has no expressive meaning, and the public will not associate the bar's members with the bar's activities. In those circumstances, the membership requirement does not infringe the freedom of association—even if the bar engages in nongermane activities such as offering dietary advice or promoting a charity drive.}

Consistent with that principle, we held in Gardner v. State Bar of Nevada (9th Cir. 2002), that even if the public might associate attorneys with a state bar's expressive activities, that association is permissible if the activities are germane. There, the State Bar of Nevada engaged in a public relations campaign that sought to "dispel any notion that lawyers are cheats or are merely dedicated to their own self-advancement or profit." The campaign instead promoted the notion that lawyers "strive to make the law work for everyone.". An attorney objected to the campaign in part because he believed lawyers "are supposed to serve their clients, not 'everyone.'" …

In this case, by contrast, OSB engaged in nongermane conduct by adopting the Specialty Bars' statement. The "guiding standard" in determining whether an activity is germane is whether it is "necessarily or reasonably incurred for the purpose of regulating the legal profession or 'improving the quality of the legal service available to the people of the State.'" At least some of the Specialty Bars' statement was not germane. The statement opened by describing the Specialty Bars' "commitment to the vision of a justice system that operates without discrimination," but much of its criticism of then-President Trump did not relate to the justice system at all—for instance, it criticized Trump for describing Haiti and African countries as "shithole countries." Although preventing violence and racism can relate to improving the legal system, the connection here was too tenuous. See Schneider v. Colegio de Abogados de P.R. (1st Cir. 1990) (holding that a bar's activities that "rest[ ] upon partisan political views rather than on lawyerly concerns" are not germane). Because the Specialty Bars' statement was not germane, OSB's adoption of the Specialty Bars' statement was not germane either. OSB has not offered any other justification for associating its members with the Bulletin statements. Thus, the infringement does not survive exacting scrutiny….

The remedy for this violation need not be drastic…. [E]ven if OSB does engage in nongermane activities, in situations in which those activities might be attributed to its members it could include a disclaimer that makes clear that it does not speak on behalf of all those members. OSB could also lessen the risk of misattribution by following the California State Bar's lead and referring to attorneys as "licensees," rather than "members."

I'm pretty skeptical of this reasoning, in part because (1) I don't think any "reasonable observer would read a statement like OSB's to actually speak on behalf of the attorneys it regulates," at least in the sense of inferring that any particular lawyer "assume[s] that the plaintiff agrees with the organization's articulated positions," and (2) I don't think that labeling an attorney as a "member" of the bar rather than a "licensee" should make any constitutionally significant difference in any reasonable observer's (or reasonable lawyer's) mind. But in any event, it seems like a noteworthy decision.

Scott D. Freeman and Adam C. Shelton (Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute) and Luke D. Miller (Military Disability Lawyer LLC) represent plaintiffs.

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