The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Wall Street Journal has published my new commentary, titled "Ed Feulner, Ed Meese and the Heritage Foundation's Exodus." This follows on my resignation from Heritage last month. Here is the introduction:

Rome didn't fall in a day, and Heritage didn't fall in a tweet. Kevin Roberts's bungling defense of Tucker Carlson might have triggered the mass resignation of scholars from what was once America's leading conservative think tank, but this exodus was years in the making. The Heritage Foundation made a strategic choice to adapt to the current political moment by refusing to exclude anyone from its boundless tent. That led Heritage to depart from its principles and embrace people who have no credible claim to conservatism, even at the expense of pushing out the brains that built the foundation. By obsessing over "what time it is," Heritage lost sight of hard lessons learned from the past.

And from the conclusion:

But the Heritage Foundation has no power to cancel anyone. All it can do is protect its own integrity by declining to associate with unsavory figures like Mr. Fuentes. That's what National Review editor William F. Buckley did in 1962, when he denounced John Birch Society leader Robert Welch who claimed, among other things, that Dwight Eisenhower was a communist, and whose organization disseminated antisemitic propaganda even while professing to oppose antisemitism.

I agree with Ben Shapiro's message to Mr. Roberts: "If Heritage Foundation wishes to retain its status as a leading thought institution in the conservative movement, it must act as ideological border control." Because it failed to do so, scholars are self-deporting. What time is it? Too late to save the Heritage Foundation.

Watching the different reactions to the Minnesota ICE videos brings to mind a study I wrote about here in 2011 that was published as a law review article, "They Saw a Protest."

In the study, individuals are shown a video of a protest at a building. Individuals are then asked to say, based on the video, whether the protesters violated a law that that prohibits intentionally interfering with, obstructing, intimidating, or threatening a person seeking to enter, exit, or remain lawfully on the premises. The video looked like this:

Now here's the catch: There were actually two videos, not one. Each person was shown just one of the two.

The two videos were identical except that the designers of the study altered the videos to change what was being protested. One video was edited so that the protest was against military recruiters, and the second video was edited so that the protest is against an abortion clinic.

The two videos were substantively identical, but notice the very different culture wars resonance. In the version of the protest against military recruiters, the protest was a "left" protest against a "right" policy. In the version of the protest against the abortion clinic, the protest was a "right" protest against a "left" policy. Again, it's actually the same protest. Participants in the study saw exactly the same thing video of the protest itself. But the ideological stakes were 180 degrees apart.

The result?

Whether protesters were seen as guilty or innocent depended a lot on the ideology of the study participant doing the seeing. When assessing a purely factual question—did the protesters engage in criminal threats?—people were a lot more likely to answer "yes" if their ideological worldview matched that of the policy protested, and a lot more likely to answer "no" if their ideological worldview matched that of the protesters. Put another way, people watching the video tended to see what matched their worldview.

The whole study is here.

Twelve states have adopted state constitutional amendments protecting a crime victim's right "to justice." For example, in 1990, Arizona became the first state in the nation to begin a victims' rights amendment with a fundamental promise: "To preserve and protect the victims' rights to justice and due process …" Ariz. Const., art. II, sec. 2.1(A). Since then, eleven additional states have recognized crime victims' rights "to justice" in their constitutions: California, Florida, Kentucky, North Dakota, Oklahoma, Ohio, Oregon, South Carolina, Tennessee, Utah, Wisconsin.

Steve Twist and Vanessa Kubota have just published an important new law review article, published in the Arizona State Law Journal, explaining how this right to justice creates substantive rights for crime victims. Here's the abstract:

Since 1990, the Arizona Constitution has promised to "preserve and protect" a crime victim's rights to "justice and due process." Eleven states have followed Arizona's lead, amending their constitutions to include similar language. By starting with the verb "preserve," these amendments make clear that a victim's right to justice predates its constitutional recognition.

But what is the victim's right to justice? Does it have operative legal force? Can a victim assert the right to justice as a free-standing substantive right, untethered to the specific enumerated rights that were enacted in its name? No court has defined the crime victim's right to "justice" in the constitutional context, much less applied it. Until such jurisprudence is developed, the crime victim's right to justice, as a matter of state constitutional law, will remain an elusive promise.

This Article explores the origin and meaning of "justice" for crime victims in the context of state constitutional law and general policy, arguing for a return to fundamental principles. A comprehensive interpretation of justice—as the right of each person to receive his or her due under the law—applied fairly, equally, and without discrimination—keeps justice from straying into constricted, outcome-oriented domains, protects defendants' due process rights, and gives operative meaning to the right to justice for crime victims.

Giving substantive effect to the "right to justice" could have broad implications. As Twist and Kubota explain in the concluding section to their article, the victim's right to justice could perform parallel work to the defendant's right to due process. As an illustration of the point, they offer an example of speedy trial rights:

When a motion to continue is being considered, the court must consider the crime victim's right to a speedy trial or disposition. The criminal defendant may have a Sixth Amendment right to a speedy trial, but it is unjust to the victim for the vindication of a wrong to take years. After conviction, it is unjust and therefore unconstitutional to delay the filing of post-conviction petitions beyond time limits set by the Legislature.

The crime victim's right "to justice" also finds an analog in the federal Crime Victims' Rights Act (CVRA), which promises that victims in federal cases have an enforceable right "to be treated with fairness …." 18 U.S.C. § 3771(a)(8). But while that right has been part of federal law since 2004, it has received little development in caselaw from federal appellate courts. The victims' right "to justice" in state constitutions and "to be treated with fairness" in federal law deserve greater exploration.

Twist and Kubota end their article with the hope that it begins "a new conversation, prompting lawyers and judges to expand the horizons of justice and revive a concept that forms the basis of our laws and freedoms." I join them in urging courts to pay greater attention to open-ended rights for crime victims.

There is much uncertainty concerning President Trump's plans with regard to revenue from Venezuelan oil. Now, there is some chatter now whether Trump may violate the Miscellaneous Receipts Act. This law provides, in part, "an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim."

Of course, the chatter has skipped over the threshold question: is the President subject to this statute? Ed Whelan does not resolve this issue in his post:

Whether or not the president is "an official … of the Government" for purposes of this provision, the subordinates who would be taking part in the actual receipt of the money surely are.

I think the most likely answer is that the President is not subject to this statute.

First, we have to consider the Clear Statement Rule in light of Franklin v. Massachusetts and Trump v. United States, coupled with OLC opinions from William Rehnquist and Antonin Scalia. Seth and I discussed this background in our recent post on the Posse Comitatus Act. This statute does not expressly reference the President, and we should not presume this prohibition should apply to the President.

Second, other elements of the statute reinforce the conclusion that the President should not be subject to this statute. Paragraph (f), for example, provides "(f) When authorized by the Secretary [of the Treasury], an official or agent of the Government having custody or possession of public money, or performing other fiscal agent services, may be allowed necessary expenses to collect, keep, transfer, and pay out public money and to perform those services." Do we really think the President needs to seek authorization from the Secretary of the Treasury, his subordinate? Paragraph (d) provides, "An official or agent not complying with subsection (b) of this section may be removed from office." I am fairly confident this provision is not referring to the impeachment process, especially of the President. Congress was referring to the firing of a civil servant.

Third, there is a relevant historical precedent. In 1805, the Tunisian Envoy arrived in the United States. He gave President Jefferson several valuable horses as a gift. Jefferson did not keep these gifts as his personal property, nor did he seek congressional consent to keep these gifts, but rather sold the horses to fund the envoy's stay in the United States. Jefferson did not ask Congress for permission before selling the horses. Jefferson basically kept the money from the sale of the horses in trust for the benefit of the envoy. (Seth Barrett Tillman and I wrote about this at page 332-337 in Part V of our series.) This history suggests that in the context of foreign policy, there may be very good reasons why the President would need to hold onto foreign money, and not deposit it into the treasury. All the more reason to follow the Clear Statement Rule.

There is a fourth argument that Seth shared with me. The Third Circuit addressed the meaning of the Miscellaneous Receipts Act in American Federation of Government Employees, AFL-CIO, Local 1647, Petitioner v. Federal Labor Relations Authority, 388 F.3d 405 (3d Cir. 2004). Judge Chertoff's opinion stated:

For purposes of the appropriations power, public money is defined broadly. As Justice Story observed in his Commentaries, it includes "all the taxes raised from the people, as well as revenues arising from other sources." 2 Joseph Story, Commentaries on the Constitution of the United States § 1348 (3d ed. 1858), quoted in Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 427, 110 S. Ct. 2465, 110 L. Ed. 2d 387 (1990). By law, public money includes money from any source such as taxes, customs and user fees, and other proceeds of government agency activities. See 31 U.S.C. § 3302 (Miscellaneous Receipts Act). The purpose of the Clause is to place authority to dispose of public funds firmly in the hands of Congress, rather than the Executive. Richmond, 496 U.S. at 425-27, 110 S. Ct. 2465; Cincinnati Soap Co. v. United States, 301 U.S. 308, 321, 57 S. Ct. 764, 81 L. Ed. 1122 (1937). This not only allows Congress to guard against "extravagance," Story, supra, but hands the Legislative Branch a powerful tool to curb behavior by the Executive. See generally Kate Stith, Congress' Power of the Purse, 97 Yale L.J. 1343 (1988). Without congressional permission, therefore, no money may be paid by the Treasury. Richmond, 496 U.S. at 427-28, 110 S. Ct. 2465; Reeside v. Walker, 52 U.S. (11 How.) 272, 291, 13 L. Ed. 693 (1850) (alternate holding).

Seth explained to me:

The goal of this statute is to protect government revenues by making a consolidated/unified Treasury where funds can only be removed by statute. But funds arising in connection in with Venezuelan oil are not property of the US -- unless there is some contract or other lawful basis to claim this property (and funds from its sale) belongs to the US. If not, then this is not "public money" and the statute is, in my opinion, not applicable.

Indeed, there is also a related issue of in what capacity the President might even accept these funds. Seth and I discussed the capacity issue here. I'm sure professors will invariably circle back to the Foreign Emoluments Clause. I sometimes feel like I'm living the ConLaw version of Groundhog Day.

Everyone needs to pump their brakes on whether President Trump might violate the Miscellaneous Receipts Act.

The Missouri Commission on Retirement, Removal, and Discipline of Judges charged Judge Matthew Thornhill with committing misconduct:

That Respondent engaged in a course of conduct in which he failed to maintain order and decorum in the courtroom, in his chambers, and in the courthouse and further failed to maintain the dignity appropriate of judicial office in one or more of the following ways:

That Respondent would routinely wear an Elvis Presley wig on or about October 31 in the courtroom, in his chambers and/or in the courthouse while conducting court business.

That on occasion, Respondent would let litigants and/or witnesses select how they would be sworn in prior to testifying. One option involved the Respondent playing Elvis Presley music from his phone.

That on occasion, Respondent would refer to Elvis Presley during court proceedings, such as referring to Elvis Presley's date of birth or death when such statements were irrelevant to the proceedings before the court.

That on occasion Respondent would refer to the lyrics of Elvis Presley songs during court proceedings when such statements were irrelevant to the proceedings before the court.

That on occasion Respondent would play music from his phone including Elvis Presley songs while entering the courtroom and/or while on the bench doing court business.

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The Missouri Commission on Retirement, Removal, and Discipline of Judges charged Judge Matthew Thornhill with misconduct:

That Respondent engaged in a course of conduct in which he was involved in political activity not related to the law, legal system, or the administration of justice and/or was related to his own political campaign from the bench in the courtroom while conducting the business of the court and/or around the courthouse in one or more of the following ways:

That on occasion Respondent would mention his political affiliation and/or his preferred candidates in contested political elections with litigants, witnesses, and/or attorneys while conducting court business from the bench in the courtroom.

That on occasion, Respondent would comment from the bench in the courtroom to litigants, witnesses, and/or attorneys about where his "Thornhill for Judge" signs were located.

That on occasion, Respondent would remark from the bench in the courtroom to litigants, witnesses, and/or attorneys that they live in, "Thornhill for Judge Country."

That on one occasion, while considering the petition, Respondent asked the petitioner if the union for which the petitioner worked has, "[w]armed up to Thornhill for judge."

That on occasion, Respondent would, from the bench in the courtroom, ask litigants. witnesses, and/or attorneys where they lived and if they had seen his campaign signs.

Judicial Ethics Judiciary

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I'll admit a guilty pleasure. I enjoy watching police dash-cam and body-cam videos on YouTube. More often than not, these videos begin during routine traffic stops but quickly escalate. Once the suspects feels cornered, they will usually take flight. Sometimes they will jump out of the vehicle and flee on foot. Other times, they will take the car out of park, put it into drive, and slam the accelerator. In rare cases, the driver will start driving while the police officer is next to the car, or even leaning into the window. Officers have been seriously injured. These two videos came up with a quick search.

Different law enforcement agencies have different policies with regard to the use of force. As I recall, some police departments allow officers to open fire on a vehicle that is being used as a deadly weapon. Other departments only permit high speed chases. Other departments will just allow the vehicle to drive away.

This background brings me to the shooting yesterday in Minneapolis. I've watch the video from the New York Times over and over again.

The commentators focus on the fact that the driver's wheel was turned to the right, suggesting that she was trying to drive away from the ICE agents. When given a lawful order to stop, it is usually not advised to drive away from law enforcement. But let's put that bit aside for now.

The entire incident lasted a few seconds. Is there any reason to think the agent saw which way the wheels were facing before he opened fire? I am doubtful. I had to watch the video with a frame-by-frame breakdown to figure out the chronology, and direction of the wheels. Think about it this way. The driver would have to simultaneously keep his eyes focused on the wheels (low) and the driver (high). Is it even possible to see both?

To use a sports analogy, it is extremely difficult for a First Base umpire to simultaneously look at both the base (low) and the glove (high). The New York Times discussed this tough job:

Instead, the call is most often made with the two significant elements of the play — the ball in the fielder's glove and the runner's foot on the base — at some distance from each other, far enough apart that the umpire cannot keep both in his line of vision. From the earliest days of their training, umpires are taught how to cope with this: on most infield ground balls, establish a position 15 to 18 feet from the first-base bag and at a right angle to the perceived path of a true throw.

For many plays, where it its not possible to see both, the umpires will watch the bag to see when the reader touches, and listen for the pop when the ball reaches the glove. And even then, well-trained umpires routinely make errors with close plays at first--especially in a noisy stadium where you can't hear the pop. Instant replay exists now to remedy those errors.

The ICE agent in this case likely could not see both the direction of the wheels and the driver. He was only standing a few inches away. He lacked the distance and vantage point to observe both. And we know he was looking at the driver based on where he aimed his gun.

Now the agent likely saw the driver shift the car into drive. For sure, the driver did not keep her hands off the wheel, and would have had to reach for the gear-shift. Indeed, you can see the reverse lights in the back turn off shortly before the officer drew his weapon.

If the agent sees a car a few inches away from him shift into drive, is it reasonable to think he might be a target? In the past, ICE agents have been hit with cars. Would this background be relevant?

Also, much has been made of the fact that the officer did not actually get hit. As I watch the video, he quickly jumped out of the way to avoid contact. This is akin to a baseball pitcher who throws at a batter, but the batter jumps away to avoid contact. Pitchers can still be ejected when there is an intent to plunk the batter that proves unsuccessful.

I realize how volatile this situation is, but we should resist Zaprudering the video, especially where a decision had to be made with imperfect knowledge in a split second.

In two previous blog posts, I argued that every President from 1881 to 1921 had successfully defended the President's power to remove at will all officers exercising executive power and that no independent agencies in the modern sense of the term had been created between 1881 and 1921. In this blog post, I will argue that every President from 1921 to 1933 also successfully defended presidential removal power at will over all executive officers and that no independent agencies in the modern sense of the term were created between 1921 and 1933 prior to Humphrey's Executor v. United States (1935). My argument grows out of my co-authored book with Professor Christopher Yoo, who deserves all the credit and none of the blame for anything in this blog post. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).

Warren G. Harding served as President of the United States from 1921 to 1923. As President, Harding vigorously asserted his power over the entities that became independent after the decision in Humphrey's Executor v. United States (1935). As Christopher Yoo and I wrote, "Harding communicated his administration's policy agenda to members of the Interstate Commerce Commission (ICC) and the Shipping Board requiring commissioners to submit their undated resignations before receiving their appointments, ignoring the statutory provisions [that might have been read as limiting presidential removal power], and threatening to remove Shipping Board members who disagreed with his policies. Even more important were his efforts to reconstitute … agencies with commissioners more in tune with his pro-business orientation. Harding made a number of transformative appointments to the ICC, the Federal Reserve Board, the U.S. Tariff Commission, and the Federal Trade Commission that effectively brought the regulatory policy of the Progressive Era to an end." Calabresi & Yoo, at 262.

Harding endorsed an executive branch reorganization proposal that "recommended that the independent agencies be consolidated into the executive department." Id. Although this plan failed, Harding succeeded in creating a Bureau of the Budget—a plan initiated by Taft and then supported by Woodrow Wilson. "Under the Budget and Accounting Act of 1921, 'the Bureau of the Budget was part of the executive branch, reporting to the president. The budget director was not to take instruction from cabinet officers but only from the president, which gave the director the authority to plan a responsible budget without constant interference.' The impact on the president's ability to control his administration was palpable and immediate. Under the leadership of the very able Charles Dawes, the Bureau of the Budget was able to save more than one billion dollars during its first year of operation. Even more important, the bureau allowed the president to exert far more control over federal spending than ever before." Id. at 262-263. The Bureau of the Budget, which began as a part of the Treasury Department under Harding was moved to the White House by President Franklin D. Roosevelt and was then renamed the Office of Management and Budget (OMB) under President Richard M. Nixon. It has been one of the principal tools by which modern presidents control the unitary executive branch.

Steven Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III. He has written or co-written many law review articles and several books, including The Meese Revolution: The Making of a Constitutional Moment (2024) (with Gary Lawson).

Executive Power

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From In the Matter of L.M.P., decided Tuesday by N.J. intermediate appellate judges Ronald Susswein, Mark Chase, and Lorraine Augostini:

Petitioner L.M.P. and her husband E.S. are a married couple residing in Bayonne. On July 9, 2024, Bayonne police officers arrived at the couple's home to inform them of the untimely death of their only son. L.M.P. and E.S. became distraught upon hearing this tragic news.

E.S. made several pertinent statements to police during the interaction. According to reporting Officer Krzeminski, E.S. told the officers that there was a "gun upstairs," stated that his wife would shoot herself, asked Officer Krzeminski to take out his firearm and shoot him, and asked the officer to remove the gun from the residence because he was going to "eat the gun." E.S. was taken to Bayonne Medical Center for a psychological evaluation. L.M.P. remained quiet throughout the encounter with police and later testified that she "went into severe shock."

During the police visit to the home, L.M.P. voluntarily surrendered the firearm, which was brought to Bayonne Police Headquarters. A Petition for Temporary Extreme Risk Protective Order (TERPO) was filed on behalf of the Bayonne Police Department against L.M.P. The petition alleged that L.M.P. posed an immediate and present danger of causing bodily injury to herself or others and asked the court to grant a TERPO to prohibit her from owning, possessing, or acquiring firearms. The trial court granted the TERPO on the same day.

A FERPO hearing was held [two months later]…. L.M.P. … testified at the [Final Extreme Risk Protective Order (FERPO)] hearing. The following is the totality of her testimony:

So, the only thing I would like to say is that it was a very unfortunate day for my husband and I. And I went into severe shock from the second they gave us the news. I didn't say anything. I didn't threaten anybody. I have no mental health issues. I could tell you that I have worked at my place of employment for over ten years. I've been in the same line of business for over [twenty-five] years. I've been an upstanding citizen. So, the gun that was pulled from me is owned by me and registered by me. So, that's all I have to say.

Guns

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1/8/1973: Trial begins for seven men accused of illegal entry into Democratic headquarters at Watergate hotel. The break-in would give rise to U.S. v. Nixon.

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Model houses — Andrii Yalanskyi/Dreamstime.com

Donald Trump announced today he plans to ban the purchase of single-family homes by large institutional investors. As with many Trump actions, this is not something the president actually has the authority to do. Real estate transactions and property ownership are generally subject to state, not federal authority. And any federal intervention - if constitutional at all - must at least be authorized by Congress.

In addition, barring large investors from the market is unlikely to mitigate the housing crisis, and could easily make things worse. There is no truth to claims that large investors are somehow monopolizing the market and thereby increasing prices. Large institutional investors (those who own 100 or more homes) own only about 3% of single-family homes nationwide. That's nowhere near enough to attain any kind of monopoly power, even if we assume (implausibly) that the large investors are colluding with each other. The fact that large investors account for a higher percentage of recent sales doesn't change that reality. Even if they were to increase their share of the housing stock several-fold, that still wouldn't be nearly enough to create any kind of monopoly.

For more on the reasons why large investors are not the cause of high housing prices, see my Cato Institute colleague Norbert Michel's 2021 testimony before the House of Representatives, on this subject.

Barring institutional investors may well actually make the housing situation worse, at the margin. Large investors may often be better-positioned to refurbish and modernize homes than small investors or individual homeowners. The big ones can more easily exploit economies of scale. In addition, where allowed to do so, large investors may be more likely to convert single-family structures to multifamily housing. Increasing the stock of the latter is essential for reducing prices and increasing housing for the working and lower-middle classes - the people most severely impacted by housing shortages. Even single-family rentals can still benefit less affluent people, since they can more easily afford to rent than to buy.

Large investors are easy to demonize. It is true, as Trump says, that "People live in homes, not corporations." Left-wing critics of large investors say similar things. But, obviously, corporations don't buy houses in order to live in them themselves, or to keep them empty. They buy them to make money. And the way to do that is to rent them out or resell to willing buyers after increasing their value. Either way, people in need of housing benefit.

Big investors don't create those benefits out of altruism. They do it to make a profit. But, to paraphrase Adam Smith's famous statement about butchers, brewers and bakers: "It is not from the benevolence of the builder, the developer, and the investor, that we expect our housing, but from their regard to their own interest."

Instead of attacking large investors and promoting other snake oil policies like rent control, tariffs, and deportations, politicians would do better to target the real cause of housing shortages: exclusionary zoning and other regulatory barriers that make it difficult or impossible to build new housing in response to demand, throughout much of the country. For an overview of these issues, see my recent Washington Examiner article on "Foot Voting, Housing, and Affordability."

I covered some of this ground in much greater detail in a 2024 Texas Law Review article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver).

UPDATE: I have made minor additions to this post.

My latest article, Title VI Hostile Environment Law in the Shadow of Antisemitic Violence, forthcoming in the Journal of Free Speech Law, is now available to download. The article is forty pages long, but its basic contribution comes down to this: discussion by judges and commentators of hostile environment complaints filed by Jewish students have largely ignored the fact that Jewish students across the US have faced violence, threats, and intimidation since October 7, in a national environment in which Jews more generally have faced a similarly threatening environment, including several murders. This article, in contrast, analyzes the relevant Title VI issues, including the freedom of speech of protestors, in light of that environment, and concludes that rather than focusing on whether speech protected by the First Amendment should have been suppressed because of unprotected antisemitic acts, courts and commentators should consider whether protected speech that endorses violence is part of a threatening context that required universities to crack down (as many did not) on unprotected actions that contributed to a threatening environment such as vandalism, threats, illicit encampments, classroom disruptions, and so on.

Here is the formal abstract:

Following Hamas's October 7, 2023 attack on Israel, American universities have faced a wave of Title VI complaints alleging deliberate indifference to antisemitic harassment of Jewish students. Many of these claims arise in the context of anti-Israel campus protests featuring rhetoric that, while deeply offensive and often perceived as endorsing violence, is ordinarily protected by the First Amendment. Courts and commentators have increasingly concluded that such protected speech cannot form any part of a cognizable hostile-environment claim. This Article argues that this conclusion rests on a fundamental misstatement of both Title VI doctrine and the nature of the claims being advanced.

The Article contends that Jewish students' post–October 7 claims do not seek to impose liability for protected political expression. Rather, they allege that universities have failed to address unprotected antisemitic conduct—including physical assaults, threats, intimidation, vandalism, unlawful encampments, and selective nonenforcement of neutral conduct rules—that materially interferes with access to education. Within this framework, protected speech plays a limited but legitimate role: not as actionable harassment, but as contextual evidence bearing on whether a university's inaction in the face of unprotected conduct reasonably gives rise to fear of violence and intimidation.

Drawing on extensive documentation of antisemitic assaults and threats on campuses and in the surrounding society, the Article argues that the "reasonable person" standard governing hostile-environment claims must be applied in light of contemporary conditions. When violent rhetoric coincides with lawless behavior and administrative indifference, Jewish students' fear for their physical safety cannot be dismissed as hypersensitivity to ideas. Properly understood, Title VI permits—indeed, requires—universities to enforce neutral conduct rules to mitigate hostile environments without suppressing protected speech. Courts therefore err when they dismiss such claims at the pleading stage by conflating demands for physical security with demands for ideological conformity.

Below is my list of speaking engagements for the Spring 2025 semester. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.

I will likely add additional events and information to this post, as they are scheduled. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business!

Jan. 30, 1:30-3:00 PM, Panel on "Euclidean Zoning Criticisms and Judicial Review
Going Forward," Pacific Legal Foundation Symposium on"Euclid Turns 100: Rethinking an Antiquated Case and Reimagining Euclidean Zoning for the Century Ahead," Scalia Law School, George Mason University, Arlington, VA: "State Constitutional Paths to Curbing Exclusionary Zoning."

Feb. 3, 12-1:30 PM (tentative time), Faculty Seminar, American University Washington College of Law, Washington, DC: "Immigration is Not Invasion." This event may be limited to American University students and faculty.

Feb. 5, Time TBA, Cato University, Cato Institute, Washington, DC: "Tariffs and the Separation of Powers." This event is likely limited to participants in the Cato University program.

Feb. 24, 12-1:30 PM (tentative time), Columbia Law School, New York, NY: "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (tentative title). Debate with Prof. Thomas Merrill (Columbia). Sponsored by the Columbia Federalist Society.

Feb. 27, 9:30-10:45 AM, University of Pennsylvania Carey School of Law, panel on spending and taxation, conference on the 250th Anniversary of the Declaration of Independence, Philadelphia, PA: "Tariffs, Taxation, and the Principles of the Declaration of Independence" (tentative title). The other panelists will be include Irwin Kramer (American University), Molly Reynolds (Brookings Institute), Laura Dove (American Enterprise Institute), and Jane Madders (Fordham University, serving as moderator). Sponsored by the University of Pennsylvania Journal of Constitutional Law.

Mar. 7, Time TBA, 2026 National Conference of Constitutional Law Scholars, Westin La Paloma, Tucson, AZ (sponsored by the University of Arizona): "Immigration is Not Invasion."

Mar. 13, Time TBA, Conference on the Free Speech Rights of Non-Citizens, Center for Academic Freedom and Free Speech, Yale Law School, New Haven, CT: "How Speech-Based Immigration Restrictions Threaten Academic Freedom."

Mar. 19, Time TBA, Seattle University School of Law, Seattle, WA: "Immigration is Not Invasion" (tentative topic).

Mar. 26, Time TBA, McGeorge School of Law, University of the Pacific, Sacramento, CA: "Democracy and Political Ignorance: Why Smaller Government is Smarter" (sponsored by the McGeorge Federalist Society).

Apr. 9, Time TBA, Yale Review panel on constitutional issues under Trump, New Haven, CT: "The Trumpist Nationalist Threat to the Constitution" (tentative topic and title). The other panelist will be Prof. Fabian Witt (Yale Law School).

In a previous blog post, I argued that every President from 1881 to 1901 had successfully defended the President's power to remove at will all officers exercising executive power and that no independent agencies in the modern sense of the term had been created during the last twenty years of the 19th Century. In this blog post, I will argue that every President from 1901 to 1921 also successfully defended presidential removal power at will over all executive officers and that no independent agencies in the modern sense of the term were created between 1901 and 1921 during the Progressive Era. My argument grows out of my co-authored book with Professor Christopher Yoo, who deserves all the credit and none of the blame for anything in this blog post. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale University Press 2008).

Theodore Roosevelt served as president from 1901 to 1909, and he had a breathtakingly large view of presidential power, which he called "The Stewardship Theory." Id. at 239-240. Teddy Roosevelt thought the President could do anything at all that was not specifically prohibited by the Constitution or statutory law. He called this the Jackson-Lincoln view of presidential power. Teddy Roosevelt believed that Andrew Jackson, Abraham Lincoln, and Alexander Hamilton had correctly described the scope of presidential power. He personalized the office of the presidency in a charismatic way that had never been done before, and he appealed to the people over the heads of both Houses of Congress. Teddy Roosevelt was immensely popular.

Teddy Roosevelt contrasted his Stewardship Theory of the presidency with what he called William Howard Taft's James Buchanan Theory of the presidency. Taft thought the president could only act pursuant to statutory and/or constitutional authorization. As a matter of constitutional law, Taft was clearly right, and Teddy Roosevelt had a dangerous and unconstitutionally broad conception of presidential power. He withdrew hundreds of millions of acres of western land from public entry without having any statutory authority to do so. Teddy Roosevelt wielded the removal power with zeal, as Christopher Yoo and I show in our book, maintaining strict control over all his cabinet members.

In his eighth annual message to Congress Teddy Roosevelt proposed:

Executive Power

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After a student posted a viral video of an argument with a Texas A&M instructor about the content of an English class, Texas politicians went ballistic. Soon the instructor was suspended and the university president was fired. Last month, the university regents adopted a policy banning courses that "advocate race or gender ideology" and requiring university approval for any exemptions for materials that serve "a necessary educational purpose."

And thus we arrive at the first academic semester after the donnybrook and with the new policy in place. The results are not terribly surprising, though some are already complaining about "malicious compliance" (best defined as following the rule faithfully but in ways that expose the rule as badly drafted or just plain dumb).

Brian Leiter has the details (including the syllabus and the university correspondence) of Texas A&M philosophy professor Martin Peterson, who was to teach his usual introductory class on "Contemporary Moral Issues" this spring. His syllabus includes two days on "race and gender ideology." He emphasizes in his email to the university that he does not "advocate" for any position in the class, and it is worth noting that the chapter of the text he assigns for that section is actually titled "Equality and Discrimination" and includes excerpts from authors like Iris Marion Young and Kwame Anthony Appiah. For good measure, he also included additional excerpts from Plato's Symposium in that section of the class.

The department chair reported to him that the "College leadership team" had decided that the section, including the Plato readings, would have to be excised from the class. If Peterson did not do so, he would be reassigned to teach a different class. Censoring Plato was probably not exactly what the regents had in mind (though Victorianism does seem to be making a comeback in some circles), but such a result was all too predictable when viral videos and political backlash determine the boundaries of what can be taught in university classrooms and risk-averse administrators are charged with making sure that no professor bumps into those boundaries.

There'll be plenty of material for a second edition of You Can't Teach That! at least.

From Judge Walter Rice (S.D. Ohio) Friday in Kettering Adventist Healthcare v. Collier:

At the outset, the Court must address the troubling accusations made by Kettering and the EBG Defendants: that Collier and Scott fabricated support for their arguments…. [T]he volume, extent, and repetitive nature of fabrications by Scott [a self-represented lawyer] and Hewitt [Collier's lawyer] are without parallel in the undersigned's tenure as a trial judge.

Kettering and the EBG Defendants brought these cases to the attention of the Court—and to the attention of Scott and Hewitt—not in passing, but in a footnote that occupied more than one-third of one page, single-spaced and two full pages in the EBG Defendants' Reply. Yet, neither Scott nor Hewitt has acknowledged the misrepresentations, much less attempted to explain why they subsequently inserted them into multiple filings….

[These] are not mere scrivener's errors or the confusing of the holding of a case with dictum. They are not even engaging in such misreading of the decision that they fail to recognize that the case stands for a proposition diametrically opposed to the one they are asserting. Rather, Scott and Hewitt have cited at least twelve cases that either do not exist or are so far afield from the subject matter of the captioned case that they should have reasonably realized that they had no place in a Court filing, in this or in any other case. Incredibly, even after being put on notice by Kettering that three cases cited in Collier and Scott's Motion did not state what Collier and Scott represented that they did, Collier and Scott cited those very same cases for the very same propositions of law in their later Reply.

AI in Court

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1/7/1972: Justices Lewis F. Powell and William H. Rehnquist take oaths.

The Volokh Conspiracy

New in WSJ: "Ed Feulner, Ed Meese and the Heritage Foundation's Exodus"

The Minnesota ICE Videos and "They Saw A Protest"

The Crime Victim's Right to Justice

Does The Miscellaneous Receipts Act Apply To The President?

Judge "Displayed Poor Judgment by Wearing His Elvis Presley Costume … During Court Proceedings on or Around Halloween"

Missouri Judge Removed from Bench for In-Court Political Activity

Zaprudering The Minneapolis ICE Video

Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1921 to 1933

N.J. Appellate Court Reverses "Red Flag" Order Barring Gun Possession by Mother Whose Son Had Just Died

Today in Supreme Court History: January 8, 1973

Open Thread

Barring Institutional Investors From Buying Homes Won't Make Housing More Affordable - and Would Likely Make Things Worse

Title VI Hostile Environment Law in the Shadow of Antisemitic Violence

Upcoming Speaking Engagements

Justice Barrett, Trump v. Slaughter, and Presidential Removal Power from 1901 to 1921

Texas A&M Removes Plato from Introductory Philosophy Class

"The Undersigned Cannot Recall a Comparable Instance of Such Brazen and Repeated Dishonesty" in 55 Years as a Judge

Today in Supreme Court History: January 7, 1972

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