Eugene Volokh's Blog, page 74

[Jonathan H. Adler] Lighthiser v. Trump: Another Kids Climate Suit

[This one claims that the Trump Administration's deregulatory efforts violate the Fifth Amendment.]

Last month, environmental activists filed suit against the Trump Administration on behalf of 22 youth alleging that President Trump's various Executive Orders calling for environmental deregulation and the encouragement of energy production are unconstitutional. Specifically the complaint in Lighthiser v. Trump alleges that Trump's energy-related EOs "violate the Fifth Amendment substantive due process clause on their face by depriving Plaintiffs of their fundamental rights to life and liberty and are ultra vires in assuming powers reserved to and exercised by Congress through Article I."

This suit, much like prior "kids climate" cases alleging a judicially enforceable federal constitutional right to climate action, is unlikely to go anywhere (favorable press coverage notwithstanding). There is simply no basis in existing law upon which to claim that there is a fundamental constitutional right to environmental protection and that federal actions encouraging fossil fuel use are subject to strict scrutiny. However rhetorically powerful such claims may be, they represent a profound break from the country's constitutional tradition and cut against contemporary doctrine. Moreover, this case was filed in the Ninth Circuit, where similar claims have already been found to be nonjusticiable. (State-law based constitutional claims, on the other hand, can present different questions.)

Perhaps aware that the constitutional  claims face tough sledding, the Lighthiser plaintiffs also seek to argue that various actions called for in Trump's EOs are ultra vires or otherwise beyond the scope of the President's authority or contrary to existing statutes. Including such claims does not help the plaintiffs challenge the EOs themselves, as the EOs do not purport to command any federal action that is inconsistent with law. There is a chance, however, that some specific claims against specific agency actions could proceed, provided the plaintiffs are able to demonstrate standing. Yet insofar as two other youth plaintiff climate suits have foundered on standing grounds, the outlook for this suit is bleak as well.

As with the prior kids climate suits, Lighthiser v. Trump seems aimed more at the court of public opinion than it is the courts of law.

Prior posts discussing Juliana and the other kids climate cases can be found here.

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[Josh Blackman] Today in Supreme Court History: June 18, 1787

6/18/1787: Alexander Hamilton introduces his plan to the Constitutional Convention.

Alexander Hamilton

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Josh Blackman] A Flashback to Justice Barrett's Confirmation Hearing

[As I noted at the time, I was surprised how well she did. I wish we could see more of nominee Barrett. ]

Co-Blogger Jon Adler flashes back to two posts I wrote during and after Barrett's confirmation process in 2020. He suggests that I singing a different tune today than I did five years ago. I think if you read between the lines, you'll see a different message.

To state the obvious, Justice Barrett's performance at her hearing was masterful. Her performance was at the level of Chief Justice Roberts's. This is one area where the law professor mentality served her quite well.

My expectations going into the hearing were not high. Privately I expressed concerns about her to colleagues. I talked to many people who assured me that she would be solid. Yet as I watched the proceedings, I was truly impressed. Indeed, I was guardedly optimistic about what she might accomplish when confirmed.

But more importantly, I was surprised at how well she did. Indeed, her testimony alleviated some of my concerns.

In one post, I wrote, "She continues to impress me in ways that I frankly hadn't expected." In another post, I wrote, "She made a connection that I hadn't expected to experience." I suggested that she might one day fill Justice Scalia's shoes! I wondered if she would connect with the American people. Perhaps she could become an icon for originalism. None of these things have happened.

I wish we would see more of the ACB from the hearing. There is still hope. Longtime readers will recall my coverage of Justice Kavanaugh was quite harsh for some time. But, in candor, I've had a lot less to object to of late. With a few exceptions, he isn't doing the sorts of things that troubled me. There is always hope for tomorrow.

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[Ilya Somin] "The Nationalist Threat to Liberty" - My Final Contribution to the Liberty Fund Symposium on "The Legacy of David Boaz"

[The symposium has now concluded. ]

David Boaz. (Cato Institute)

 

The Liberty Fund symposium on "The Legacy of David Boaz" -  prominent libertarian thinker and longtime Cato Institute leader - has now concluded. There were initial essays by five participants - Andy Craig, Tarnell S. Brown, Aaron Powell, Jonathan Blanks, and myself. Each participant has now also posted two response essays. My final response essay is entitled "The Nationalist Threat to Liberty." Here is an excerpt:

Once again, I have few disagreements with the other contributors to the symposium. So I will take this opportunity to draw out a few common themes, and their implications. As before, a common theme of the various contributions is the need to extend liberty to all, without arbitrary exclusions based on factors like race, immigrant status, gender, sexual orientation, and the like.

In one of his response essays, Tarnell Brown mentions the Marquis de Lafayette as an example of the cosmopolitan nature of the struggle for liberty, and how immigrants and foreign allies contributed to the founding and growth of America. It's worth noting that, in addition to fighting for liberty in the American Revolution, Lafayette was also a longtime advocate of the abolition of slavery who unsuccessfully urged George Washington and other Founding Fathers to do more for that cause. Lafayette understood that liberty must be extended to all, regardless of race and ancestry. So should we.

Another, at least implicit, common theme, is the menace to liberty posed by the resurgence of illiberal and authoritarian nationalism. This is most obviously true in the cases of nativist and xenophobic attacks on immigration and trade, and Vladimir Putin's war of aggression against Ukraine (motivated primarily by Russian nationalist imperialism)….

Nationalism obviously threatens liberty by restricting the range of people allowed to enjoy it. It also imperils freedom by promoting government central planning of the economy, through a combination of protectionism (as with Donald Trump's massive new trade war), immigration restrictions, and industrial policy. In these respects, nationalism is – as my Cato Institute colleague Alex Nowrasteh and I explained in "The Case Against Nationalism," – very similar to libertarians' other traditional rival: socialism. As Alex likes to put it, nationalism is socialism with more flags….

Libertarians of my generation… and even more so those of David Boaz's generation, came of age in a world where socialism and the progressive left more generally were the greatest threats to liberty. It may be psychologically difficult for some to adjust to the new reality where the greatest threat to our values now comes from the political right, in the form of nationalism. That adjustment may be especially painful for those most emotionally attached to the old "fusionist" alliance between libertarians and conservatives. But adjust we must.

Later in the piece, I note that recognizing nationalism as the greatest current threat to liberty does not imply an uncritical attitude towards the left:

David [Boaz] also understood that addressing the danger from the right doesn't entail blinding ourselves to the flaws of the left. The "democratic socialism" popular on the extreme left wing of the Democratic Party and in some European nations remains dangerous, sharing many of the flaws of its authoritarian counterparts. It is, today, less widespread – and thus less immediately threatening – than right-wing nationalism. But that could change.

David Boaz knew that libertarians must be alert to dangers to liberty from both right and left, and that we should strive to avoid becoming too emotionally attached to either side of the conventional political spectrum, even though tactical alliances on particular issues are often useful. On this, and much else, we should learn from his example.

My other contributions to the symposium are "David Boaz on Immigration" (initial essay) and "Liberal Universalism and the Menace of Nationalism" (first response essay). Other participant's contributions are available at the Liberty Fund site here.

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[Jonathan H. Adler] What Have We Learned about Justice Barrett?

[Perceptions of Amy Coney Barrett may have changed more than her jurisprudence or voting record.]

Sunday's New York Times featured an extensive profile of Justice Amy Coney Barrett. The article contained one interesting tidbit about the PennEast case. Otherwise the article offered relatively little that was new. It did, however, provide plenty of material for the gristmill.

A key portion of the article summarizes a preliminary analysis of Justice Barrett's voting record over her first three-and-a-half terms on the Court. That's not much to go on, but it allows for the editors to include some pretty graphs and provides the basis for over-confident assessments of trends in Justice Barrett's jurisprudence.

As longtime readers know, I believe Court watchers place too much weight on individual terms, none of which (in isolation) is ever representative of the Court's overall work. Over time we often see significant vacillation in the percentage of cases decided by any particular margin and rate at which particular justices agree with each other or join the majority. In OT2022 over 45 percent of the Court's decisions were unanimous. Yet only one year before the percentage of unanimous opinions was only 29 percent. The only thing that really changed between these terms was the Court's mix of cases.

The unrepresentative nature of individual terms is only increasing as the Court's docket shrinks, and this magnifies the problem of analyzing voting patterns. If the Court hears only 60 cases or so, and most of the cases are decided unanimously or by an overwhelming majority, a handful of cases can produce dramatic swings. This means we should be circumspect about looking at a few terms and declaring the existence of a definitive trend.

The problems are compounded if one is trying to assess how "liberal" or "conservative" a justice is, particularly insofar as the change in the Court's composition has changed the composition of the Court's docket, both because of what cases the justices choose to hear and because of what questions advocates are willing to put before the Court.

All this is a long way of saying I am skeptical of any claims that Justice Barrett is "drifting" to the left, or that we have seen any discernible shift in her voting pattern to date. The idea that a justice who joined the Court's majorities in Dobbs, Sackett, SFFA, 303 Creative, Cedar Point, Kennedy, West Virginia v. EPA, Biden v. Nebraska, Corner Post, Loper Bright Enterprises, and Jarkesy (just to name a few) is anything but a solidly conservative justice defies comprehension. That Justice Barrett did not join the dissenters in cases such as California v. Texas is more a sign of clear thinking than of lack of courage, and it's hard for me to get worked up over a justice's failure to rubber stamp every emergency docket filing by the Trump Administration.

My co-blogger Josh Blackman does not seem to share these reservations. In a lengthy post, "See, I Told You So About Justice Barrett," he dons the mantle of Cassandra and suggests that Kantor's article confirms his predictions of doom from Barrett's elevation to the Court. But I am not sure the article confirms Blackman's predictions so much as it provides fodder to feed his current grievances.

Back in 2020 when Justice Barrett was facing confirmation, Blackman was not suggesting she would be a disaster on the Court. Quite to the contrary, he lavished her with praise.

In an October 2020 post about her confirmation hearings, "The Naturalness of ACB," he wrote:

I am eager to see Justice Barrett hit the speaking circuit, and make her vision of the law accessible to the masses. She has the rare combination of personality and intellect, which will allow her to bring the Constitution to the people. But--and here is the huge but--I think Judge Barrett may have the humility and modesty to prevent that rock-star status from going to her head. Fame affected both Scalia and Ginsburg in a bad way. I hope ACB can resist the siren call. . . .

she is really, really well-versed in constitutional doctrine. She readily talked about "external constraints" on federal power. She recognized that you cannot talk about Brown v. Board of Education without also talking about Cooper v. Aaron. . .  She refused to indulge in the myth of judicial supremacy, and referenced Ex Parte Merryman. . . . She casually explained that Section 2 of the 14th Amendment permits disenfranchisement of felons but the Second Amendment has no such constraint. We have to keep in mind that ACB has been a constitutional law professor for some time. She speaks our language. I think Justices Gorsuch and Kavanaugh have a deep familiarity with these doctrines. They were raised in our legal culture. But ACB has internalized it through years of scholarship. For her, it is natural.

I honestly did not think I would praising a nominee in this fashion. I really didn't. I hadn't planned to even watch the proceedings. I've long considered the hearings to be a vapid ritual--meaningless Kabuki theater. But ACB drew me in. She made a connection that I hadn't expected to experience. I think even the Democratic Senators saw that connection. And so will the American people.

And in a follow up post on her swearing in he added:

She continues to impress me in ways that I frankly hadn't expected. There is a sincerity behind every word that really resonates. . . .

you can tell that the confirmation process actually made an impact on her. No, not in the sense of the Thomas and Kavanaugh hearings, where the Justices were forever scarred by the process. Rather, she witnessed first hand how many of the Senators were concerned primarily, if not exclusively with policy outcomes. The overwhelming majority of questions asked ACB about her views different social issues, such as abortion, gay rights, etc. At each juncture, Judge Barrett refused to answer those questions. Critics thought she was evasive. But she truly did not think her own views would be relevant. During her remarks, Justice Barrett used this experience to highlight the dichotomy between senators and judges. Senators are duty-bound to follow their preferences. But "it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them." . . .

No matter how many new seat are added to the Court, Justice Barrett will still loom large over the others. Her greatest contribution will be to enrich our constitutional culture.  I mean that sincerely. She has the charisma and presence to elevate legal discourse to the next level. And I think she will inspire generations of conservative women to aspire to greatness, without eschewing their beliefs. With time, she may even be able be able to fill the titanic void left by Justice Scalia.

I can't wait till she gets started.

As readers may suspect, I do not believe Justice Barrett was a poor choice for the Court. Quite to the contrary, I think she has distinguished herself as a careful, thoughtful jurist who provides a distinct, welcome, and powerful voice on the Court. I do not always agree with her, particularly in environmental cases (such as Ohio v. EPA and San Francisco v. EPA), but I have tended to find most of her writings quite persuasive. Where I think she has gotten things wrong, I do not attribute it to a lack of "courage," but to genuine jurisprudential disagreement.

All that said, I would discourage making any sweeping judgements about a justice who has not even sat on the Court for a full five terms. Justice Barrett will be on the Court for many years to come, and we will have ample time to analyze her jurisprudence. It's a bit premature to look upon her works and despair. Indeed, I am not sure such a time will ever come.

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[Ilya Somin] My Forthcoming Article on " Public Use, Exclusionary Zoning, and Democracy"

[It is part of the Yale Journal on Regulation Symposium on the 20th Anniversary of Kelo v. City of New London.]

Susette Kelo's famous "little pink house," which became an iconic symbol of the Kelo case (Institute for Justice). (Institute for Justice)

 

The twentieth anniversary of Kelo v. City of New London is coming up on June 23. Kelo is the controversial Supreme Court decision which held that privately owned "economic development" was enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." The Yale Journal on Regulation has a symposium forthcoming on the anniversary. My contribution, entitled "Public Use, Exclusionary Zoning, and Democracy," is now available for free download on SSRN. Here is the abstract:

The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the "public use" issue at stake in that case, and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. In the twenty years since Kelo, exclusionary zoning and the housing crisis it has caused have emerged as major issues in public policy and legal debate. Kelo famously ruled that the Fifth Amendment requirement that takings must be for a "public use" does not bar the employment of eminent domain to take homes for privately owned "economic development." The Court endorsed a broad definition of "public use" that included almost any disposition of condemned property that might benefit the public in some way. Exclusionary zoning – defined here as regulatory restrictions on the types of housing that can be built in a given area - is a major factor in the national housing crisis, that has increased housing costs, prevented millions of people from "moving to opportunity," and impaired economic growth and innovation. opportunities. There are striking and largely unnoticed parallels between the "public use" question decided in Kelo and the constitutional issues raised by exclusionary zoning.

Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question – private-to-private condemnations in one case, exclusionary zoning in the other – violate the property rights provisions of the Fifth Amendment. The former violates the requirement that the use of eminent domain be for a "public use;" the latter that severe restrictions on owners' rights to use their land require "just compensation" under the Takings Clause. But, in both cases, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal-era skepticism of property rights. That skepticism was in large part driven by concerns that judicial protection for property rights is undemocratic, inhibits government planning, and tends to benefit the rich at the expense of the poor and disadvantaged.

Part II outlines ways in which the traditional conventional wisdom on these two issues is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further "representation-reinforcement" in two ways: by giving voice to groups excluded from the political process, and by empowering them to "vote with their feet."

Part III briefly highlights some synergies between judicial enforcement of public use limitations on eminent domain, and enforcement of restrictions on exclusionary zoning. Both help empower people to live where they wish. Striking down exclusionary zoning would make it harder for local governments to keep people out; Reversing Kelo would make it harder for them to expel those already living in the area. Opponents of exclusionary zoning could also potentially learn useful lessons from the Kelo experience on how litigation can be effectively combined with political action.

The article builds in part on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. and also on my recent article "The Constitutional Case Against Exclusionary Zoning," 103 Texas Law Review 1 (2024) (with Joshua Braver).

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[Jonathan H. Adler] A "Sympathetic Critique" of Law-Skepticism on the New Right

[A "classical lawyer's" take on what law skeptics within the New Right get right and get wrong.]

Harvard law professor Adrian Vermeule has posted an interesting and worthwhile essay at The New Digest responding to the growth of law-skepticism among some in the New Right (and, in particular though he does not say it, among many MAGA thought-leaders). While I do not share Vermeule's perspective, the essay is a worthwhile read. A few excerpts:

On one level, it is perfectly understandable that many on the New Right have veered towards versions of law-skepticism. It is a natural overcorrection to the world around them, one in which the fanatics and cynics of liberalism appropriate the "rule of law" for transparently ideological, sectarian and indeed partisan ends. In that world, our world, talk of "the rule of law" and "human rights" becomes a vehicle for enforcing grotesqueries of the liberal programme, as in a notorious USAID document during the Biden years that said the rule of law requires adopting gender ideology. In that world, our world, prominent law professors openly thirst to crush dissenters from legal liberalism, comparing them to the defeated Nazis. When told by both the legal left and by legal conservatives that authority in the sense of positive will, not truth, makes the law, and that law only ever enforces the will of some sovereign upon others, it is perfectly understandable for the New Right to think: "Very well then. Let us become the sovereign, and we will enforce our will upon our enemies, doing unto them what they have been doing unto us for years." If, as Carl Schmitt said,2 law under liberalism becomes a poisoned dagger with which factions stab each other in the back, it is not hard to think: better to be the one wielding the dagger.

However understandable, this attitude is indeed an over-correction. Finding themselves in a situation of tragic conflict in which the law has been corrupted by both the legal left and by legal conservatism in fundamentally similar ways, the New Right law-skeptics erroneously infer that there is no such thing as law at all, or at least that all law is just the expression of power. This is a non sequitur, akin to saying that if I discover that the judge before whom I appear has corruptly taken bribes from the opposing party, therefore there is not and never has been such a thing as honest judging. The New Right law-skeptics erroneously over-generalize, deriving speculative theoretical views from the grim realities of the unusual practical situation in which they find themselves. . . .

The basic over-generalization of the New Right law-skeptics — the left has wielded law as a weapon, therefore law is nothing more than a weapon of the powerful — is linked to a claim or set of claims that often arise in and around these issues. These claims urge that the rule of law is really the rule of men; that it is inevitable that some men will rule others, and that law not ultimately grounded in power is vain and ineffective; that any given people, constituted (in a small-c sense) as a political society, makes the law as an expression of themselves; and that order must precede law and provides the stable preconditions for law.

All these claims fall into the category of important but misleading half-truths. Of course human law is in part an expression of a given political community. But any concrete political community, in virtue of being also a human community, both makes its own particular law and also participates in the universal law, accessible to human reason. . . .

Overall, radical law-skepticism, whether on the New Right or the critical left, is wrong in itself, misguided as a practical matter, and impossible to reconcile with the broad sweep of the Western (or for that matter non-Western) legal tradition. It is a modernist innovation, just with a different political valence attached to it by the New Right than the valence it holds in liberal legalism. In contrast to both New Right and liberal views, Montesquieu spoke for the classical tradition, in this as in many other things, when he wrote that "Laws, in the most extended sense, are the necessary relations deriving from the nature of things; and in this sense, all beings have their laws: the divinity has its laws, the material world has its laws, the intelligences superior to man have their laws, the beasts have their laws, man has his laws." . . .

Law is real, and the rule of law is indispensable to a just and civilized political order; so our whole juristic tradition holds, until just yesterday. Now, neither the reality of law nor the necessity for the rule of law entail that the rule of law is the only thing we care about, or that the rule of law has no outer boundaries, or that the rule of law should be equated with the rule of courts, or that or that (negative) liberty is the only thing the law cares about, or that there are no hard cases. All these mistakes derive from tendentious attempts to appropriate law and the rule of law for various ideological, sectarian, or partisan aims; I and many others have criticized all of them. But it is an equal or even greater mistake to jettison law and the rule of law altogether, or to equate them with the will of the stronger. At a minimum, anyone who holds the latter views should have the candor to confess that they are standing radically outside the traditional mainstream of specifically juristic thought. Until late in the tradition, such views were only ever held by a small minority of heterodox theorists, few of them working jurists. Let us at least have no pose of legal classicism among the law-skeptics, left or right. And, perhaps in a fit of wild optimism, I still hope that the New Right law-skeptics will eschew such sterile and ultimately indefensible views in favor of the fertile ground of the tradition and the reason it embodies, properly translated and adapted to new conditions.

As they say, read the whole thing.

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[Orin S. Kerr] Listen for Free to the First Hour of "The Digital Fourth Amendment"

[A long preview is now available on Youtube.]

I've blogged a few times about my new book, The Digital Fourth Amendment: Privacy and Policing in Our Online World.  I've also mentioned that there's now an audiobook version available.  I'm happy to say that the first hour of the audiobook is now available for a free listen anytime over at Youtube via Google Play Books.

The first 90 seconds or so is a legal warning that the audiobook publisher added, but the book itself starts right after that. If you want to hear or read the rest, you can buy the hardcover book here, a Kindle/electronic version here (among other places), or the full audiobook here (among other places).

Check it the one-hour free audio preview here:

 

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[Jonathan H. Adler] The Decline and Fall of the AAUP as a Principled Defender of Academic Freedom

[Matthew Finkin dissects how the American Association of University Professors has abandoned a principle defense of academic freedom.]

Professor Matthew Finkin has published "The Unraveling of the AAUP," a pointed critique of the American Association of University Professors in the Chronicle of Higher Education. The essay, adapted form a longer paper, explains how the AAUP's change in its positions on academic boycotts and embrace of DEI statements in academic hiring betray its longstanding principles and undermine its purported commitment to academic freedom.

From the essay:

From its founding in 1915, the AAUP has gained the respect of the academic community and of the judiciary in explicating the meaning and application of academic freedom and tenure. Its work has had a significant impact on both. Its credibility has been earned by the consistent adherence to principle uninfluenced by exogenous policies or organizational ends, and by the sheer quality of its work. The latter was captured a half century ago by Judge J. Skelly Wright, who noted the "thoroughness and scrupulous care" in the AAUP documents placed before the court.

Recent actions have departed from these standards — and radically. The AAUP, acting through its Committee A on Academic Freedom and Tenure, has, first, abandoned its prior position that systematic participation in the boycott of Israeli universities could threaten academic freedom and, second, declared that adherence to diversity, equity, and inclusion (DEI) dictates as a condition of faculty retention can be consistent with academic freedom. These actions reveal a body now driven by considerations other than fidelity to principle. As a result, the deep well of communal respect has been drained dry; the AAUP's credibility has been destroyed.

The balance of the essay explains, in some detail, how the AAUP has departed from its own prior positions, without meaningful explanation, and is allowing contemporary political considerations to trump principles of academic freedom.

In closing, Finkin notes that the AAUP will likely defend university policies consistent with its new position, without regard for what the AAUP used to stand for. In such an instance, Finkin notes, the proper response would be to say to the AAUP: "You are the successor in title, but no longer in principle, spirit, or scrupulous care."

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