Eugene Volokh's Blog, page 76

[Eugene Volokh] Begun the Clone War, Has, Here as to Cloning of Voice-Over Actors' Voices

From today's decision by Judge Paul Oetken in Lehrman v. Lovo, Inc. (S.D.N.Y.):

[Voice-over actors] Paul Lehrman and Linnea Sage bring this putative class action against .. Lovo, Inc. … alleging that Lovo used artificial intelligence … to synthesize and sell unauthorized "clones" of their voices….

Ultimately the Court concludes that, for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law…. [But] claims for misappropriation of a voice, like the ones here, may be properly asserted under Sections 50 and 51 of the New York Civil Rights Law [New York's right of publicity statute], which, unlike copyright and trademark law, are tailored to balance the unique interests at stake. Plaintiffs also adequately state claims under state consumer protection law and for ordinary breach of contract….

After hearing what appeared to be Lehrman's voice on Deadline Strike Talk, Plaintiffs sought to learn more about Lovo. Lehrman found that Lovo "had been marketing [the clone of his voice] as part of its subscription service under the stage name 'Kyle Snow,'" and that it was this "Kyle Snow" voice that he had heard on the podcast…. Sage discovered that Lovo had created a clone of her voice named "Sally Coleman" that was available to Lovo's subscribers. Lovo also marketed its product using "side-by-side" comparisons of Sage's original audio recordings … and the "cloned version of her voice." …

According to Plaintiffs, the Kyle Snow and Sally Coleman voices are not synthetic creations, composites, or amalgams, built from a multiplicity of input voices, but direct copies of their specific voices. In support, Plaintiffs point to public statements Lovo and its executives have made describing Lovo's software. In such statements, Lovo has claimed that its product "reproduce[s]" actors' voices in a way that is "practically indistinguishable from the 'real' voice….

The opinion is over 20,000 words long, so I won't try to summarize it here, but here's an excerpt from the right of publicity discussion:

While "[t]he statute does not define trade or advertising purposes," New York courts give those terms their ordinary meanings. "Advertising purposes has been defined as use in, or as part of, an advertisement or solicitation for patronage of a particular product or service, and trade purposes involves use which would draw trade to the firm." That said, the statute was drafted so as not to conflict with the First Amendment, and therefore does not reach newsworthy uses or matters of public interest.

Here, Plaintiffs adequately allege use in both advertising and trade, and Lovo does not raise a First Amendment, newsworthiness, or public interest defense. Whether or not the solicitation of investors itself counts as an "advertisement," the function of the "investor presentation, which was later posted publicly online, is plausibly understood as promoting Lovo's underlying product. The same goes for the use of Lehrman's voice in tutorials and promotional articles posted online.

Moreover, even if the voices were not used in formal advertisements or solicitations, they were clearly used for commercial purposes, and to draw trade to the firm. It is plausible to infer that, by illustrating the value of the product and helping show prospective customers how to use it, Lovo used its publicly posted tutorials to increase the appeal of its software, acquire subscribers, and retain subscribers it already had. Plaintiffs allege even that Lehrman's cloned voice was Lovo's default product and one of its self-described "best" voices….

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[Eugene Volokh] "The Alleged Misdeeds of Jewish Individuals, Elected Officials, Judges and Others in Myriad Circumstances,"

["including Plaintiff's divorce proceedings and criminal case."]

From Uzamere v. Trump, decided Monday by Judge Timothy Kelly (D.D.C.):

Over 201 paragraphs and 95 pages of the original complaint, Plaintiff purports to challenge Executive Orders 13899 and 14188 [the ones related to "Combating Anti-Semitism" -EV] on the ground that they "violate the Establishment Clause [of the First Amendment to the United States Constitution] that prohibits the government from establishing a religion; and the Free Exercise Clause, that protects individuals' right to practice their religion … as they choose."

Plaintiff, "an adherent of the Jehovah's Christian Witnesses sect," alleges the Executive Orders are "designed to subject individuals who engage in disseminating information regarding members of Jewish leadership who engage in unconstitutional, tortious or criminal acts that are permitted by the Babylonian Talmud to be subject to Jewish leadership's interference with commerce by threats, violence and other tortious and criminal offenses."

What follows is a lengthy discussion of Plaintiff's prior lawsuits, lawsuits filed by others, and the alleged misdeeds of Jewish individuals, elected officials, judges and others in myriad circumstances, including Plaintiff's divorce proceedings and criminal case. It is not clear whether or how these matters pertain to Executive Orders 13899 and 14188, however, particularly insofar as certain events occurred prior to the election of the current President of the United States and issuance of Executive Order 14188. Nor is it clear whether or how enforcement of the Executive Orders affects Plaintiff.

Plaintiff's original complaint is neither short, plain, nor intelligible, and her Errata (ECF No. 4) and myriad exhibits (ECF Nos. 1-1 through 1-58, 4-2 through 4-34) utterly [fail] to clarify matters. Because the pleading fails to meet Rule 8(a)'s minimum pleading standard, the Court will dismiss it without prejudice.

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[Ilya Somin] Supreme Court Refuses to Consider Eviction Moratorium Takings Case

[But Justice Clarence Thomas wrote a strong dissent to denial of certiorari.]

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It wasn't a great Supreme Court term for property rights advocates. In March, the Supreme Court refused to hear Bowers v. Oneida County Industrial Development Agency, which I and many others thought would have been a great opportunity to overturn or at least limit Kelo v. City of New London. On June 30, the Court similarly denied cert in GHP Management Corp. v. Los Angeles, a Ninth Circuit case that would have been a great opportunity to address the issue of whether eviction moratoria qualify as takings - and rule that they do!

But Justice Clarence Thomas wrote a strong dissent to the denial, joined by Justice Gorsuch. Here is an excerpt:

I would grant review of the question whether a policy barring landlords from evicting tenants for the nonpayment of rent effects a physical taking under the Takings Clause.

This question is the subject of an acknowledged Circuit split. The Eighth and Federal Circuits have held that a bar on evictions for the nonpayment of rent qualifies as a physical taking, while the Ninth Circuit has held that it does not….

This Circuit split stems from confusion about how to reconcile two of our precedents. The Ninth Circuit treated as controlling this Court's decision in Yee v. Escondido, 503 U. S. 519 (1992), which held that a statute did not effect a physical taking when it allowed mobile home owners to evict tenants only after an onerous delay….

By contrast, the Eighth and Federal Circuits looked to our more recent decision in Cedar Point Nursery v. Hassid, 594 U. S. 139 (2021). There, we held that a law requiring
agricultural employers to allow labor organizers onto their property constituted a physical taking because it "appropriate[d] for the enjoyment of third parties the owners' right to exclude." Id., at 149. And, the Eighth and Federal Circuits reasoned, if "forcing property owners to occasionally let union organizers on their property infringes their right to exclude," it follows that "forcing them to house non-rent-paying tenants (by removing their ability to evict)" does too….

Because "[w]e created this confusion," we have an obligation to fix it. Gee v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. 1057, 1059 (2018) (THOMAS, J., dissenting from denial of certiorari). That obligation is particularly strong here, as there is good reason to think that the Ninth Circuit erred. Under the logic of Cedar Point, and our Takings Clause doctrine more generally, an eviction moratorium would plainly seem to interfere with a landlord's right to exclude. See Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 765 (2021) (per curiam) ("[P]reventing [landlords] from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude"). Nor does Yee dictate otherwise: Although the statute there constrained landlords' right to evict, it was not "an outright prohibition on evictions for nonpayment of rent." Darby, 112 F. 4th, at 1035…

Finally, this issue is important and recurring. Given the sheer number of landlords and tenants, any eviction-moratorium statute stands to affect countless parties. And,
the end of the COVID–19 pandemic has not diminished the importance of this issue. Municipalities continue to enact eviction moratoria in the wake of other emergencies.

I think Thomas is right on virtually all points here.  I would add the split in the lower courts extends not only to federal circuit courts, but also to state supreme courts. In 2023, the Washington Supreme Court upheld an eviction moratorium in Gonzales v. Inslee. While the ruling was based on the state constitution, the court also held there was no taking under the federal standard for physical takings. I criticized the Washington ruling in my contribution to a December 2023 Brennan Center symposium:

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled in 2021 that even temporary mandated physical occupations of privately owned land qualify as "per se" (automatic) takings under the Takings Clause of the Fifth Amendment. Gonzales only addresses claims under Article I, Section 16 of the Washington Constitution. But the state supreme court ruled that eviction moratoriums are not covered by the per se rule, even assuming it applies to Section 16. The justices reasoned the eviction moratorium was merely a "regulation" of a preexisting "voluntary relationship" between tenants and owners. They ignored the obvious point that, in the absence of the "regulation," the tenants would have no right to remain on the owners' land. Thus, an eviction moratorium undeniably does mandate a physical occupation of property.

The court's reasoning — which may be copied by other state and federal courts — has implications that go beyond eviction moratoriums (though those are significant in themselves). If there is no takings liability for physical occupations linked to "voluntary relationships," then there is no taking when conservative states require businesses and employers to allow employees and customers to bring guns onto their property, or when they enact laws barring employers from excluding workers who refuse to get vaccinated for Covid-19 or other contagious diseases.

While eviction moratoriums may seem like beneficial regulations, their effect is to raise the cost of housing and reduce its availability. Evidence indicates they did little to help the poor or to curb the spread of Covid during the pandemic.

See also my analysis of last year's Federal Circuit decision in Darby Development Co. v. United States, which went the other way. Thomas cites Darby in his discussion of the circuit split, quoted above.

I have my issues with Thomas's jurisprudence on a number of other fronts. But he is one of the best current justices on takings issues. I hope the Court eventually listens to him on this one. Eviction moratoria are clearly takings, and jurisdictions that impose them must pay compensation.

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[Eugene Volokh] No Sanctions Against Prof. Francesca Gino Over Libel Claim Against Data Colada

From today's order by Judge Myong J. Joun (D. Mass.) in Gino v. President & Fellows of Harvard College:

The Data Colada Defendants request sanctions based on Gino's defamation claims, which alleged that the Defendants falsely accused her of data fabrication in four academic studies. Gino's suit followed an investigation by Harvard University, which concluded that the data in the studies were altered in ways that aligned with the authors' hypotheses. The investigation relied on forensic analysis and original datasets. In response, Gino alleged that she was unfairly targeted by a campaign of harassment orchestrated by the Defendants in coordination with Harvard.

Gino's own admissions during the Harvard investigation—including her acknowledgment that the posted datasets were inconsistent with originals, and her concession that she had no explanation for the discrepancies—undermine the premise of her later-filed defamation complaint. As the Defendants correctly note, it is not defamation to publish statements that are true or substantially true. In their motion, the Defendants provide extensive excerpts from the Harvard report and Gino's responses that show she acknowledged the presence of data alteration, even if she denied responsibility for it. Plaintiff's opposition does not meaningfully rebut the central facts. Rather, it attempts to relitigate the credibility of the Harvard investigation and the intentions of the Defendants.

Still, while it is true that federal courts possess inherent power to sanction bad-faith conduct, it is also true that that power must be exercised with restraint and only where it is clear a party has acted in bad faith, vexatiously, or for oppressive reasons. Here, Gino's defamation claims against the Data Colada Defendants were weak indeed; however, that does not necessarily equate to bad faith, vexatious, or oppressive….

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[Eugene Volokh] Abortion, Colorado River, and Interpleader

[The true superpower of the lawyer is to turn all questions into questions about procedure—often, about procedure about procedure.]

A short excerpt from today's long Braid v. Stilley, written by Seventh Circuit Judge Michael Scudder and joined by Chief Judge Diane Sykes and Judge Thomas Kirsch:

In September 2021 Dr. Alan Braid, a Texas OB/GYN, wrote an editorial in the Washington Post admitting he performed an abortion in violation of the Texas Heartbeat Act. Three individuals from three different states reacted by each invoking the citizen-suit enforcement provision of the Texas Heartbeat Act and seeking to recover at least $10,000 in statutory damages.

Now facing the prospect of duplicative liability, Dr. Braid made use of the federal interpleader statute, 28 U.S.C. § 1335, to join the claimants in a single suit. But, in an odd twist, he did not do so by going to any Texas federal court but instead by filing suit in federal court in Chicago. In addition to his interpleader claim, Dr. Braid sought declaratory relief, urging the district court to declare the Texas Heartbeat Act unconstitutional.

The district court dismissed Dr. Braid's entire suit, concluding that the existence of parallel state-court proceedings justified abstention under the Supreme Court's Wilton-Brillhart doctrine. Though we chart a different course of reasoning, we ultimately reach the same end point and therefore affirm the dismissal of Dr. Braid's federal case….

Like the district court, the parties, too, recognize that this case is far from an ordinary interpleader case which follows a similar and well-known pattern: "a neutral stakeholder, usually an insurance company or a bank," sues in federal court to force "all the claimants" to the policy or fund "to litigate their claims in a single action brought by the stakeholder." Congress originally limited our jurisdiction to this narrow set of claims, specifying that statutory interpleader applied only to actions brought by "any insurance company or fraternal beneficiary society."

But over time Congress expanded the remedy's availability, amending the statute in 1936 to make interpleader available to "any person, firm, corporation, association, or society … under any obligation written or unwritten to the amount of $500 or more" to which two or more adverse and diverse claimants assert entitlement. This amendment also extended the jurisdiction of the federal courts to actions "in the nature of interpleader," thereby "relax[ing]" some of the remedy's common-law requirements, including "that the stakeholder be neutral and that the conflicting claims have the same origin." …

The Seventh Circuit concluded that federal courts should apply so-called "Colorado River abstention" to leave the matter to state courts:

Colorado River authorizes federal courts to defer to parallel state-court proceedings in "exceptional" cases "where abstention would promote 'wise judicial administration.'" … We see several considerations weighing … heavily in favor of abstention …. Foremost, not only are the Texas courts capable of resolving Dr. Braid's claims, but they are also better suited, making the federal forum inconvenient. A fundamental problem with Dr. Braid's federal interpleader claim becomes readily apparent upon considering a question at its epicenter: how is a federal court to apportion damages among multiple competing S.B. 8 claimants? As the district court underscored, the Texas legislature provided no guidance on this issue, so any decision on this important question of state law would be little more than a shot in the dark given S.B. 8's deliberate uniqueness.

Taking a closer look at Dr. Braid's claims for declaratory relief, much the same problem persists …. [H]is constitutional challenges would require us to interpret S.B. 8 in the first instance, defining its contours and giving shape to the limitations it imposes on civil defendants—a question governed wholly by Texas law—before we can proceed to the second step and determine whether a particular dimension of the Act violates Dr. Braid's constitutional rights. To engage in this type of detailed analysis would require a federal court to answer novel state-law questions without a fulsome understanding of Texas procedure—including, for example, Texas's application of the constitutional avoidance and severability doctrines, to name a few issues—leaving us to reason on our back foot.

Against this backdrop, the risk of intrusion on federal-state comity is substantial, and we see no sufficient countervailing concern to justify federal court intervention. To the contrary, the state courts were the first to obtain jurisdiction over this controversy when the three plaintiffs sued Dr. Braid in Texas state court. And we are confident that the state courts, and perhaps ultimately the Texas Supreme Court, are much better positioned to resolve the full range of complex questions before us about S.B. 8's permissible application in circumstances like those pressed by Dr. Braid's multi-faceted constitutional challenge to the enactment. It strikes us as inevitable that the Texas courts in time will all but have to supply answers given the many suits filed by non-parties challenging the constitutionality of S.B. 8 as Dr. Braid does here.

Abstention also avoids the danger of piecemeal litigation and conflicting judgments, the very problem Dr. Braid seeks to avoid…. Abstaining is also appropriate considering that resolution of an issue of state law may moot Dr. Braid's federal suit, thereby providing for a cleaner and more efficient resolution of this litigation. While these federal proceedings have been ongoing, a Texas trial court dismissed plaintiff Gomez's state suit against Dr. Braid because it found he lacked standing under the Texas Constitution. The Texas Court of Appeals affirmed, stopping short of examining the merits of that conclusion. It stands to reason, then, that if a Texas court concludes that S.B. 8's citizen-suit provision falters under the Texas Constitution, there would be no need for any court, state or federal, to supply answers under the U.S. Constitution.

The court then concluded:

As a final note, and to state the obvious, this lawsuit reflects an element of forum-shopping. Dr. Braid, a Texas physician, has asked a federal court in Illinois to adjudicate his liability and pass upon the constitutionality of a Texas law, in part, to avoid resolving those same issues in the state-court system, which he characterizes as rigged against him.

We offer this observation not as a criticism, for there is no question S.B. 8 has put Dr. Braid in a difficult predicament. Our more limited observation is only to underscore that abstention is particularly appropriate in a case like this one where we see no connection between the subject matter of the controversy and the federal venue sought.

In the end, because Dr. Braid's federal claim would require the district court to wade into complex and unsettled questions of state law (with difficult federal constitutional claims waiting in the wings), and thereby disregard the existence of parallel state proceedings capable of providing the answers, we find that exceptional circumstances exist which warrant abstention under Colorado River.

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[Eugene Volokh] United Arab Emirates Sharia-Based Judgments in American Court

Back when the debate about foreign law—including especially Islamic law—in U.S. courts was in the news, I blogged quite a bit about it. I also wrote two law review articles on the subject, see Foreign Law in American Courts and Religious Law (Especially Islamic Law) in American Courts. My basic view was that:

American courts often rightly do consider foreign law and foreign judgments, because American law calls on them to do that; and it would generally be senseless for American law to categorically block American courts from doing that.That sometimes includes the judgments of religious courts, and judgments of foreign courts applying religious law that is part of the foreign legal system.In some situations, American courts should refuse to apply foreign or religious law, or enforce the judgments of foreign or religious courts—but existing American law already has the tools needed for that.

Here's a recent illustration of this (especially item 3) from CSHK Dubai Contracting LLC v. Ali, decided last week by a Texas Court of Appeals (opinion by Justice Dana Womack, joined by Justices Elizabeth Kerr and Dabney Bassel):

This dispute—which spans multiple decades, continents, and court systems—arises out of Appellant CSHK Dubai Contracting LLC's contract with Trident International Holdings FZCO to build a residential tower in Dubai. After a dispute arose between CSHK and Trident regarding Trident's payments under the contract, CSHK initiated several legal proceedings in Dubai against Trident and Trident's founders, Appellees Sadruddin Enayat Ali, Abdul Sultan Jamal, and Wazir Ali Daridia Ultimately, CSHK obtained a judgment (the Dubai Judgment) from a Dubai court awarding it … roughly $50 million …. Because Appellees resided in Texas following the entry of the Dubai Judgment, CSHK filed a lawsuit in the Texas trial court asking that the court recognize the Dubai Judgment under the Uniform Foreign-Country Money Judgments Recognition Act (the Act). See Tex. Civ. Prac. & Rem. Code Ann. § 36A.001 et seq.

So far, makes perfect sense: Texas law generally calls for enforcing foreign judgments, which is eminently sensible in our transnational commercial system. Texas courts must do this, not because of some abstract international law principles, but because they're faithfully following the command of the Texas Legislature.

But Texas law provides that sometimes a court may conclude that a foreign judgment shouldn't be enforced, including (to oversimplify slightly) when "the defendant in the foreign-court proceeding did not receive notice of the proceeding in sufficient time to enable the defendant to defend itself," "the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment," or "the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process." And the court concluded that these exceptions were indeed present here:

[Expert witness Herbert] Wolfson also explained the important and unique role of experts in the Dubai court system. He stated that while parties may agree on the selection of an expert, the "normal practice is for the court to choose the expert, without input from the litigants, by assigning the case to the next name in line on a list of experts maintained by the Dubai [c]ourts." Indeed, according to Wolfson, Dubai courts are "under no obligation to consider or give weight to the testimony of a party-appointed expert," and "in the absence of agreement by all litigants, a person or firm that is not registered on the list of experts would not normally be permitted to provide expert testimony in a Dubai court."

Notably, Wolfson explained that "courts in Dubai typically adopt the report of court-appointed experts without scrutiny, copy-pasting findings of fact and even legal conclusions into the court's judgment." Wolfson stated that under this system, "even if the court-appointed expert has no legal training, their report generally winds up being outcome-determinative not only as to questions of fact but often as to questions of law." …

Wolfson also explained the role of Islamic law—or shari'a—in the Dubai court system. He stated that "the Constitution of the [U.A.E.] states that Islamic law is a principal source of legislation in the [U.A.E.]." He noted that the civil code relied on by CSHK in the underlying Dubai proceedings "requires judges to apply shari'a principles in cases where there is no express provision in the statutory text." He cited a provision in that code requiring judges to "adjudicate according to the Islamic [s]hari'a taking into consideration the choice of the most appropriate solutions in the schools of Imam Malek and Imam Ahmad Ben Hanbal and, if not found there, then in the schools of Imam El Shafe'i and Imam Abou Hanifa, as the interest so requires." He cited another provision in the civil code that provided that "[i]n understanding, interpreting[,] and construing the text [of a statute], the rules and fundamentals of Islamic doctrine shall be followed." {Wolfson also stated that judges in Dubai "must be Muslim" and "must have a degree in law, or in shari'a and law."} …

Here, the CASD Proceeding [a particular phase of the UAE court process] and the appointment of [Dr. Redha Darwish] Al Rahma as an expert in that proceeding was a critical moment in the various Dubai proceedings…. [Yet] Appellees were not served with process in that proceeding. During the CASD Proceeding, Al Rahma repeatedly met with CSHK's counsel and representatives but did not meet with Appellees. Al Rahma then made an expert report and a supplemental expert report, giving CSHK's counsel advanced copies of the report for review. Cf. Restatement (Fourth) of Foreign Relations Law § 484 cmt. j ("A pattern of ex parte contacts between the court and one side to the dispute or similar one-sided interventions might demonstrate a lack of fundamental fairness."). In his report, Al Rahma concluded that Appellees were responsible for the decline in Trident's assets and CSHK's inability to collect its two arbitration awards.

With Al Rahma['s] report in hand, CSHK filed suit in the Dubai CFI [Court of First Instance] and ultimately obtained the 2020 Judgment…. Appellees "were never permitted to submit a controverting expert report or assert defenses." They also indicated that they "were never permitted to litigate the merits of the claims asserted against [them]" and that they had "never been afforded the opportunity to interact" with Al Rahma. See Goldberg v. Kelly (1970) ("In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses."). And while Appellees retained an expert to controvert Al Rahma's findings, they stated that their expert "was not allowed to submit his report to the court for consideration." And there is no question that Al Rahma's report played a significant role in the Dubai Judgment….

Based on those facts, we do not think that the trial court erred or abused its discretion by finding that the specific Dubai proceedings raised doubt about the integrity of the court rendering the Dubai Judgment, were not compatible with the requirements of due process, and provided inadequate notice to Appellees.

I don't know the details of the case enough to tell whether the Texas courts made the right decision on these facts. But the general framework strikes me as quite right:

American law authorizes American courts to consider foreign judgments, including ones from countries which rely on Islamic law as part of their legal system. Such judgments may often be enforceable, and that makes perfect sense.American courts won't insist that the foreign legal system mirror ours. (For instance, most foreign civil justice systems don't use juries.)But American courts do require, because American law so specifies, that the foreign processes include sufficient procedural protections; and when those protections are missing, then American courts will find the foreign judgments unenforceable.

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[Eugene Volokh] We'll Try, But It's Going to Be Dicey ….

A bit of pragmatic candor from an order today in Point Bridge Capital, Inc. v. Johnson (N.D. Tex.):

Plaintiffs' Motion to Permit Remote Trial Testimony of Expert Witness … states that their expert has been hospitalized for heart problems and is under strict doctor's orders not to travel. Plaintiffs submit a sworn affidavit in support of their Motion…. Defendant indicated that he would leave the determination up to the undersigned. Thus, the Court assumes he is unopposed. Accordingly, the Court finds it appropriate to GRANT Plaintiffs' Motion under these extenuating circumstances.

The Court notes that due to the age of the Courthouse, and the general policies in the Fort Worth Division, remote testimony has only ever been attempted once before by the Court—under similarly appropriate circumstances. That attempt was unsuccessful and as a result the Court was forced to strike the witness. Thus, the Court highly recommends that Plaintiffs contact the Court IT as soon as possible.

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[Ilya Somin] Trump's Plan to Impose 50% Tariffs on Brazil Highlights Illegal and Harmful Nature of his Trade Policy

[It's an obvious abuse of emergency powers, a claim to unconstitutional delegation of legislative power, and a threat to the economy and the rule of law.]

Brazilian flag. (NA)

 

Earlier today, President Donald Trump announced he intends to impose 50% tariffs on imports from Brazil, citing that country's prosecution of former President Jair Bolsonaro, for the latter's attempt to stage a coup to keep himself in power after losing an election. Bolsonaro is a political ally of Trump's. The incident highlights the illegal and dangerous nature of Trump's tariff policy.

The administration has not made clear what law they will use to impose the Brazil tariffs. But reporters tell me officials have indicated Trump will use the International Emergency Economic Powers Act of 1977 (IEEPA), which is also the statute at issue in the lawsuit against Trump's "Liberation Day" tariffs, filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by this massive trade war.

The Brazil situation exemplifies why Trump's use of IEEPA is illegal and harmful. Brazil's prosecution of Bolsonaro is pretty obviously not an "emergency" or an "unusual and extraordinary threat"  to the US economy or national security. Both of these conditions are required to invoke IEEPA.  This situation just underscores the danger of allowing the president to define those terms however he wants, without any judicial review, as the administration claims he can.

The ostensible rationale for the Liberation Day tariffs is trade deficits, despite the fact that such deficits are not an "emergency," not at all "extraordinary" or  "unusual," or even a threat at all. On these points, see the excellent amicus brief in our case filed by leading economists across the political spectrum.

The Brazil tariffs are even more indefensible than Trump's other IEEPA tariffs. In addition to the Bolsonaro prosecution, Trump's letter announcing the new tariffs cites that country's supposedly unfair trade policies.  But the US actually has a substantial trade surplus with Brazil, of some $7.4 billion per year, according to the office of the US Trade Representative. In combination with  Brazil's retaliatory tariffs, Trump's massive new tariffs against that country will predictably harm consumers and businesses in both countries, for little if any gain.

If the president can use IEEPA to impose tariffs for completely ridiculous reasons like these, he can use it to impose them against any nation for any reason. That reinforces our argument that the administration's interpretation of IEEPA leads to a boundless and unconstitutional delegation of legislative power to the executive. A unanimous ruling in our favor by the US Court of International Trade concluded that IEEPA "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." I hope appellate courts will reach the same conclusions.

The president's attempt to use tariff policy to punish Brazil for prosecuting one of his political allies underscores the threat that unlimited executive tariff authority poses to the rule of law. Tariff policy - like other significant economic policies - should be based on clear, stable rules that do not vary based on the whims of any one person, and cannot be used to punish the president's political enemies or reward his allies. Trump's tariff power grab is a huge step towards replacing the rule of law in trade policy with the unilateral rule of one man. That's yet another reason why courts should strike it down.

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[Josh Blackman] Two Supreme Court Roundups In Two Cities In One Day

[Or, from one swamp to another swamp.]

This morning, at 11:00 ET, I spoke at the "Scholars and Scribes" Supreme Court Roundup at the Heritage Foundation. And this evening, at 6:00 CT, I spoke at the Houston Federalist Society's Supreme Court Roundup. It has been some time since I did two events in two cities in the same day. (Back in 2012, I visited six airports in thirty-six hours.) Today's travel was not easy to execute.

The event at Heritage wrapped at 12:15. Approximately one minute later, I was in a waiting Uber, en route to Reagan National Airport. I placed the suitcase next to me to avoid having to waste time going to the trunk. Boarding for my flight began at 12:25, as I was crossing the Fourteenth Street Bridge. I arrived at the curb of Terminal 2 at 12:31. I made it through security and to my gate in about six minutes. I scanned my boarding pass at 12:38, just after they called my name before closing the boarding. I was in my seat by 12:40. I landed in Houston around 3:00, with plenty of time to spare before the evening event.

Why did I engage in this insane turnaround? As it turned out, today there were thunderstorms in both D.C. and Houston. (Summer travel is actually worse than winter travel, as airports can remain operational during snow, but not during lightning.) Looking at the radar, I realized there was a good chance that my original flight, which was slated to leave D.C. at 3 ET and land in Houston at 5 CT, would be delayed. So I called an audible and switched to the earlier flight. I would rather rush to the airport to try to catch the earlier flight. If I had missed it, I would just wait for the later flight.

As things turned out, my prediction was correct. My original flight would be delayed about two hours, and I would have missed most of the FedSoc event in Houston.

This may sound obsessive, but whenever I travel, I track the weather in both my departing and arriving city, and also keep an eye on all flights between those airports that day in case I can switch. I also track the inbound flights (that is, where my flight is coming from), and the weather in that city. And in rare cases, I will track the weather in the inbound's inbound city. I was recently flying from LaGuardia to Dulles, and by tracking three flights ahead, realized my late-night flight would likely get cancelled, so I switched to Amtrak and taxi'd to Penn Station. It is very, very rare that I am on a cancelled flight, in large part because I am proactive about getting off those flights. As Gary Leff from View from the Wing explains, inclement weather is like the Zombie Apocalypse--you have to keep moving.

You can watch the Scholars and Scribes event here:

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[Ilya Somin] Overview of the Amicus Briefs Filed in Our Tariff Case

[The diversity and quality of the briefs opposing Trump's "Liberation Day" tariffs speaks for itself. ]

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Yesterday, the Liberty Justice Center and I  filed our appellate brief VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs on behalf of five small businesses. We are working with Neal Katyal and Michael McConnell, both leading constitutional law scholars and appellate litigators. The case is before the US Court of Appeals for the Federal Circuit, consolidated with a related case filed by 12 state governments, led by Oregon. We are defending a unanimous ruling in our favor by the US Court of International Trade. The key issue, as before, is that the government claims the International Emergency Economic Powers Act of 1977 (IEEPA) grants the president unlimited power to impose tariffs on any nation, in any amount, for any reason, for any length of time. We contend IEEPA grants no such authority, and if it did it would be an unconstitutional delegation of legislative power to the executive.

Yesterday was also the deadline for amicus briefs filed in support of our side. This post is an overview of some of the most notable ones. The bottom line is that rarely has a case attracted such a broad and impressive range of amici from across the political spectrum, and different sectors of the economy and civil society.  Many of the briefs also make important points. By contrast, there are only two amicus briefs supporting the government, both filed by divisions of Stephen Miller's right-wing nationalist America First organization.

There are a total of eighteen briefs backing our position, so I can only comment on a few aspects of them. I have included links, so interested readers can get more detail from the briefs themselves.

Advancing American Freedom, et al.: AAF is a conservative organization founded by former Vice President Mike Pence. Together with them on the brief are several other consevative and libertarian groups, including the Independent Institute and the Mountain States Policy Center. The brief focuses on why the government's interpretation of IEEPA violates constitutional nondelegation constraints on the transfer of legislative power to the executive. It is particularly strong on the original meaning.

George Allen, et al.: This brief is on behalf of a bipartisan group of prominent legal scholars and former government officials. The legal scholars include Harold Koh (Yale), Richard Epstein (NYU), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana). Epstein is probably the world's most prominent libertarian legal academic, while Koh is a prominent left-liberal scholar known for his work on national security law.  There are few, if any, other constitutional cases where both of them join the same amicus brief! The ex-government officials former Republican Attorney General Michael Mukasey, former GOP Virginia Governor and Senator George Allen, former Senator and Secretary of Defense Charles Hagel, and more.  The brief especially focuses on the argument that IEEPA doesn't authorize tariffs, and that there is no genuine "emergency" here.

Brennan Center for Justice (NYU): The Brennan Center is a leading left-liberal research institute focusing legal issues. Among the co-authors is Elizabeth Goitein and Katherine Yon Ebright. Goitein is one of the nation's leading experts on emergency powers, and the brief gives a compelling explanation of why trade deficits do not qualify as an "emergency" or an "unusual and extraordinary threat" (both are necessary to invoke IEEPA). For those keeping track, Goitein also opposed President Biden's abuse of emergency powers in the student loan case, as did I.

Burlap and Barrel: This brief is on behalf of one the many thousands of businesses severely harmed by the tariffs. It's a great illustration of why protectionism makes no economic sense. Burlap and Barrel imports spices, many of which are difficult or impossible to produce in the US. Imposing tariffs on their products harms American consumers and businesses, for little if any gain to anyone else. Several of our own clients are in the same positions, include lead plaintiff VOS Selections, which imports wine; the wine they import, in many cases, simply cannot be produced in the US, given differences in climate and soil.

Cato Institute: Cato is the nation's leading libertarian think tank, and their brief focuses on the constitutional nondelegation issue, providing a strong overview of the relevant history and original meaning. In addition to my main job as a law professor at George Mason University, I am the Simon Chair in Constitutional Studies at Cato. But I had no role in writing the brief.

Consumer Watchdog: This group promotes consumer interests. The brief is co-authored by prominent legal scholar Alan Morrison (George Washington Univ.), who is a separation of powers expert. The brief focuses on nondelegation, and is notable for its analysis of how the Supreme Court's recent decision in FCC v. Consumers' Research bolsters our case on that issue.

Crutchfield Corp.: Crutchfield is another business severely harmed by the tariffs. They sell consumer electronics products.

Economists: This brief is on behalf of a large group of prominent economists spanning the political spectrum. They include 2024 Nobel Prize winner Daron Acemoglu, Gregory Mankiw (Harvard, former Chair of the Council of Economic Advisers under George W. Bush), Jason Furman (CEA chair under Barack Obama), Kimberley Clausing (UCLA, leading expert on international economic policy), and many more. The brief represents the consensus view of the economics profession, and explains why trade deficits are not an "emergency" or an "unusual and extraordinary threat" of the kind needed to trigger IEEPA. It also describes why the massive Liberation Day tariffs are a major policy issue triggering application of the major questions doctrine. The brief was drafted by a team led by big-name appellate litigator Adam Unikowsky.

Former Government Officials & Legal Scholars: This brief, on behalf of a group of mostly Republican former government officials, is coauthored by well-known legal scholar Mark Lemley (Stanford). Signatories include former Massachusetts Gov. Bill Weld, Peter Keisler,  several former members of Congress, and Ty Cobb - former special counsel to President Trump (not to be confused with the baseball Hall of Famer of the same name).

Goldwater Institute and Dallas Market Center: Goldwater is a libertarian-leaning public interest law group. Their brief focuses on the nondelegation doctrine, and is particularly strong on the history and original meaning, showing how the Trump tariffs replicate abuses perpetrated by 17th century British monarchs whose imposition of taxes without congressional authorization set dangerous precedents the Founding Fathers sought to avoid replicating.

191 Members of Congress: This brief is on behalf of 161 Democratic members of the House and 30 Democratic Senators, including both the House and Senate minority leaders. The principal authors - Georgetown law Prof. Jennifer Hillman and Peter Harrell, were among those who first developed the idea of challenging the IEEPA tariffs using the major questions and nondelegation doctrines. The brief does an excellent job of presenting these and related points.

New Civil Liberties Alliance: NCLA is a conservative public interest law group, which filed the first case challenging the IEEPA tariffs (albeit limited to those focused on China). Their brief explains why IEEPA does not authorize tariffs, and should not be interpreted as granting that power merely because the predecessor Trading With the Enemy Act might have done so.

NYU School of Law Institute for Policy Integrity: IPI is a research institute focused on administrative law. Professor Richard L. Revesz (NYU), the principal author is a leading expert on administrative law and regulation. The brief is a thorough and compelling discussion of why Trump's use of IEEPA to impose massive tariffs runs afoul of the major questions doctrine.

Peter Sage: Mr. Sage is a retiree harmed by the tariffs, primarily in his capacity as a consumer.

Princess Awesome, et al (Pacific Legal Foundation): PLF is a leading libertarian public interest law firm, and they filed this case on behalf of their clients in Princess Awesome v. CBP - a case challenging Trump's tariffs similar to our own. The brief is notable for its compelling analysis of different variants of nondelegation doctrine. PLF is also my wife's employer; but she is not one of the authors of the brief, nor is she working on their tarif case.

Protect Democracy Project: This brief focuses on the abuse of emergency powers, and why emergency powers issues are subject to judicial review. PDP is a bipartisan group focused on constraining abuses of executive power.

US Chamber of Commerce & Consumer Technology Association: Many have asked me why major business organizations weren't supporting our case. Well, the Chamber of Commerce - the nation's  biggest business federation - decided to step up! Their brief explains why IEEPA doesn't grant tariff authority, and outlines the grave harm Trump's trade war inflicts on the business community, and the American economy generally.

Vikram Amar & Mickey Edwards: Amar is a prominent constitutional law scholar, and Edwards is a former Republican member of Congress. Their brief emphasizes that delegations of legislative power to the executive should be narrowly construed, because the president's veto power makes them difficult to "retrieve" after the fact, creating a dangerous "one-way ratchet."

There were only two amicus briefs supporting the government, generated by different divisions of America First:

America First Legal Foundation: This one mostly just echoes the government's arguments.

America First Policy Institute: This one makes the weak argument that all of Trump's tariffs are authorized by Section 338 of the Smoot-Hawley Tariff Act of 1930. The Trump Administration chose not to rely on this claim, and for good reason.

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