So Judge Gregory Williams (D. Del.) held today, in Overington v. Fisher: Even if FCANCER is understood as meaning "Fuck Cancer" (rather than, say, "Fight Cancer"), the exclusion of "any plate considered offensive in nature" from the state's personalized plate program was unconstitutionally viewpoint-based and discretionary.
To reach this result, the judge had to decide whether the plates in the personalized plate program were private speech or government speech, and concluded that they were private speech. The court's analysis was close to the one I wrote about two years ago in this post about Ogilvie v. Gordon (N.D. Cal.).
Seems generally correct to me. Perhaps a narrow and specific prohibition on particular vulgarities might be viewpoint-neutral (even if content-based), and thus permissible in a "limited public forum" such as this one; but a ban on "any plate considered offensive in nature" doesn't qualify, see Iancu v. Brunetti (2019).
One error I noticed: The court cited Ogilvie for the proposition that "[O]bscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment's protections"; but Ogilvie didn't hold that, and there are no First Amendment exception for vulgarity, profanity, or hate speech. Moreover, because "hate speech" is a viewpoint-based category (cf. Matal v. Tam (2017)), the government can't exclude "hate speech" even from limited public fora (or nonpublic fora), even if it could exclude "vulgarity" or "profanity."
If you follow politics and public policy, you are likely to be bombarded with messages about a vast range of different issues. How do you prioritize among them?
Setting priorities is essential for a number of reasons. Time, energy, and money devoted to Issue A are thereby denied to issues B, C, and D. Thus, we need to think about where these limited resources can do the most good. In deciding which candidate to vote for in an election, other things equal, a candidate who is good (or less bad) on high-priority issues is preferable to one who is bad on them—even if he or she is superior on less-important issues. Most electoral decisions involve choosing a lesser evil. Who that is depends in large part on the relative priority of issues.
It doesn't necessarily follow that we should always devote our time and effort exclusively to the most important issues. A large gain on a small issue might sometimes outweigh a small gain on a big one. And you can sometimes to do more good focusing on a small issue where you have real expertise than focusing on a big one about which you know very little. Nonetheless, the relative significance of issues should be a crucial factor in many decisions, even if it can't always be the only consideration. Thus, we need criteria for determining that.
Issue prioritization is partly a matter of values. For example, a utilitarian who cares only about consequences for human happiness and welfare is likely to have different priorities from a rights theorists who believes some rights should never be violated, regardless of consequences.
I won't try to resolve fundamental disagreements over values in this post. I will merely say that the values I consider most important are liberty (including property rights as well as bodily autonomy) and human happiness. I want people to be as free as possible, but also as happy as possible. These values are of obvious significance to libertarians (excluding, perhaps, some who completely reject consequentialism). But they are also important for most in the broader liberal tradition. Non-libertarian liberals still tend to value "negative" liberty, even if they don't give it as high a priority as libertarians do.
Given those values, how should we prioritize issues?
In a recent guest-blogging post, Bryan Caplan argues that housing deregulation should be a high-priority issue for libertarians, because of its enormous effects. Millions of people would enjoy lower housing prices and be free to "move to opportunity." Magnitude of effect is definitely an important criterion for prioritizing issues. An issue where there is a lot of freedom and happiness at stake is more important than one where the quantity is low.
The assessment of such impacts on liberty and happiness should focus on net effects: the overall impact of the policy. A policy that increases liberty or happiness in one way, but also results in a decrease of comparable magnitude by some other pathway, is less desirable than one that has a large positive impact on net. The same goes for issues where there are difficult trade-offs between liberty on one side and happiness/welfare on the other. Other things equal, they deserve a lower priority than ones where liberty and happiness are in alignment.
Caplan also argues that housing deregulation deserves high priority because there is a relatively simple fix available for the problem: to enable a massive increase in housing construction, government need only "get out of the way" by cutting back or eliminating exclusionary zoning and other regulations that current block it. That's relatively easy to do! By contrast, some policy issue might refer competence and "state capacity" well beyond anything that currently exists. Issues that require a major increase in competence or capacity deserve lower priority than ones where there is a simple fix that can be implemented quickly.
I would add that there is a related distinction between issues where there is room for incremental progress, and ones that are "all or nothing" propositions, where only a massive, radical change in policy can accomplish anything of value. Other things equal, the former deserve priority over the latter, except in rare "revolutionary" situations where radical change becomes more feasible than it usually is. For example, the conditions of the Civil War made immediate, nationwide abolition of slavery politically feasible, in a way that it clearly wasn't in earlier eras.
Thus, we have three criteria for prioritizing policy issues:
1. Magnitude of effects on human freedom and happiness. Big effects deserve priority over small ones.
2. Easy to implement solutions. Problems with simple, quick, fixes deserve priority over ones where the solution is difficult and/or requires a massive increase in competence and capacity.
3. The possibility of incremental progress. Issues where incremental progress is possible deserve priority over "all or nothing" issues, except in unusual revolutionary situations.
With these criteria in mind, here are three issues that I think deserve much higher priority than most people—including most of my fellow libertarians—give them: housing deregulation, easing immigration restrictions, and legalizing organ markets.
Bryan Caplan's post, linked above, is a good summary of the case for deregulating housing construction. It would make millions of people better off by reducing housing costs, and enabling more people to "move to opportunity" and "vote with their feet." In addition, this is a huge issue for people who care about liberty and property rights. Exclusionary zoning restricts property rights more than any other type of government regulation. It prevents hundreds of thousands of property owners from using their own property as they see fit. If you believe that property rights are a crucial component of liberty more generally, than zoning and other similar regulations are a massive affront to your values.
And, as Bryan also points out, there is an easy fix: simply repeal the regulations that stand in the way. Doing that does not require any great technocratic competence on the part of government.
Finally, there is tremendous room for incremental progress. Abolishing some exclusionary zoning rules but not others can still enable a lot more new housing to be built, and still strengthen protection for property rights. Ditto for deregulation that applies in some states or localities, but not others.
Regular readers won't be surprised that reducing immigration restrictions ranks high on my list of priority issues. Immigration restrictions literally consign millions of people to lives of poverty and oppression. Dropping them would massively increase freedom of virtually every kind: economic, personal, religious, and more. Think of people fleeing oppressive dictatorships like those escaping Cuba and Venezuela, people fleeing war (such as Vladimir Putin's invasion of Ukraine), political and religious dissidents fleeing persecution, and so on.
Ending all or most immigration restrictions would also greatly increase liberty for native-born citizens of receiving countries, as well as the migrants themselves. I go into the reasons why here and here.
The positive impact on human happiness is also enormous. Economists estimate that free migration throughout the world would roughly double world GDP, by enabling millions of people to move to places where they can be more productive. In addition, immigrants disproportionately contribute to economic, scientific, and medical innovation, thereby further increasing the gains migration—including for natives, who also stand to benefit from all that progress. As an extra bonus, increasing opportunities for legal migration is also the best way to reduce chaos and disorder at borders, like the US border with Mexico.
Negative side effects of migration are nowhere near large enough to offset these enormous gains, and those side effects can be further reduced by "keyhole" solutions. I discuss how and why in more detail in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.
The policy fix here is simple: mainly, governments just need to cut back on laws and regulations that exclude migrants. Some keyhole solutions are more complicated. But they are nonetheless well within the competence of most existing First World governments. Examples include such things as restricting immigrants' eligibility for welfare benefits (which we already do under the 1996 welfare reform bill).
As with housing, there is plenty of room for incremental progress. Increasing the annual number of immigrants admitted to the United States by 10% would still enable about 100,000 more migrants to attain vast increases in freedom and happiness each year, as well as facilitate substantial gains for natives. The list of ways in which immigration restrictions can be incrementally liberalized is almost limitless.
The fix for this problem is an easy one: simply repeal current laws banning organ sales! Implementing rules against coercion and fraud in organ markets is a bit more complex. But we already have such rules in other markets. There is no need for any major new type of state capacity that doesn't currently exist.
Incremental progress here is somewhat more difficult than with housing and immigration. It may seem as if legalizing organ markets is an all-or-nothing proposition. But that is far from entirely true. There are various ways in which we can legalize some types of payments for organs, while continuing to ban or restrict others. The recently proposed End Kidney Deaths Act is one example of such a proposal. We can also imagine legalization limited to some sellers, but not others (e.g.—if you are worried about "exploitation" of the poor, you can advocate legalizing sales only by the non-poor). In addition, survey data suggests the public is more open to broader legalization than usually thought.
This list is far from an exhaustive one. I chose these issues because they are particularly stark examples, and because I have relevant expertise about them.
There is, of course, the danger that these issues just seem important to me because I spend a lot of time on them. I can't definitively disprove that conjecture. But I will note that all three are issues to which I have gradually devoted more of my time and attention, as I came to realize how important they are. For example, my early work on property rights focused more on eminent domain. But I have written more about exclusionary zoning in recent years, because I have come to recognize its greater importance. There is a similar story in my work on "voting with your feet," which started with a focus on domestic migration, but gradually shifted more to the international kind, because the gains from the latter are larger.
I won't try to do it here. But, applying the same criteria, we can easily come up with a list of issues that get too much attention, rather than too little.
There is, obviously, plenty of room for disagreement with both my criteria for prioritizing issues, and the application of those criteria to particular cases. But, at the very least, we should recognize that issue prioritization matters, and we need rigorous criteria for deciding which issues matter more than others.
Senate Republicans have called on the IRS to investigate various nonprofits that have helped organize university protests, and see if they should be stripped of their tax exemptions. Would that be permissible?
[1.] The government can't strip groups of nonprofit status based on their ideological viewpoints. This was first made clear in Justice Brennan's opinion in Speiser v. Randall (1958), which struck down a denial of a property tax exemption to people and organizations that "advocate[] the overthrow of the Government of the United States … by … violence … or who advocate[] the support of a foreign government against the United States in the event of hostilities":
[A] discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. It is settled that speech can be effectively limited by the exercise of the taxing power. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech…. [T]he denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is "frankly aimed at the suppression of dangerous ideas."
The Supreme Court reaffirmed this in Regan v. Taxation with Representation of Wash. (1983) and Rosenberger v. Rector (1995): Though "the Government is not required to subsidize" speakers, once it chooses to provide such a subsidy—including through "tax deductions for contributions"—it must abide by "the requirement of viewpoint neutrality in the Government's provision of financial benefits."
And the U.S. Court of Appeals for the D.C. Circuit has specifically applied this (in Z Street v. Koskinen (D.C. Cir. 2015)) to denials of a 501(c)(3) tax exemption, holding that "in administering the tax code, the IRS may not discriminate on the basis of viewpoint"—there, as it happens, against pro-Israel speech that departed from the Administration's foreign policy. There have been some viewpoint-based denials in the past (see Dale Carpenter's post for some examples), but these precedents pretty categorical forbid such denials.
[2.] But nonprofits' right to express viewpoints doesn't extend to a right to violate valid laws (such as content-neutral time, place, and manner restrictions). IRS Revenue Ruling 75-384 deals specifically with that:
Every author has to make choices. What's worth including? What isn't? When I finally read the published version of my new Build, Baby, Build: The Science and Ethics of Housing Regulation, I was proud of my choices. False modesty aside, the book — a non-fiction graphic novel — looks great, and manages to cover almost every important angle.
With one inexcusable omission: I forgot to call for the privatization of government-owned land.
What makes this omission so inexcusable? Because I've known for many years that the share of land owned by U.S. federal and state governments is shockingly high. I just forgot about the issue until it was too late to alter the book.
To see the magnitude of government land ownership, check out these three fine maps.
First, here's federal land as a percentage of total state land area:
Second, here's state land as a percentage of total land area:
Finally, here's combined government ownership:
Here is what I wish I said about this topic:
Government ownership of land is a massive missed opportunity for humanity. If the government auctioned off this vast expanse to the highest bidders, land prices would dramatically fall, and business could finally start unearthing and developing its untold riches for human betterment.
Yes, most government intervention in the housing market is state and local. But if you count government ownership of land as "intervention" — as you should — the federal government's role suddenly looks a lot bigger. Which in turn means that the feds could move housing policy in a sharply more free-market direction without involving any other level of government.
Privatization would also let the federal government drastically slash its staggering debt — which now stands at 120% of U.S. GDP! State government debt loads and land ownership are both far lower. But mass privatization of state land would plausibly allow New York, Florida, Pennsylvania, Michigan, Wisconsin, Minnesota, and perhaps a few other states to to pay off everything they owe, then fund permanent, sustainable tax cuts with the revenue raised.
The obvious objection to privatization is that government owns the land that nobody else wants. While auctioneers could make a lot of money selling off the Grand Canyon and other famous wonders, most of the land is too remote and desolate to warrant a positive price.
If you look at the U.S. map, however, the preceding objection seems hollow. History, not economics, explains almost all of the variance in government ownership. Land that entered the union prior to the rise of the ideology of conservationism overwhelmingly ended up in private hands. Then John Muir, Theodore Roosevelt, and other proto-green ideologues arrived on the scene to preach the anti-impact moral standard. They were wildly successful, managing to keep somewhere between 30% and 90% of all land in late-joining states in government hands.
Route through the desolation of West Texas, happily owned by the private sector.
West Texas is a mighty refutation of the "government owns the land that nobody else wants" story. If you drive from Amarillo to Lubbock to San Angelo to San Antonio, you'll witness hundreds of linear miles of the most desolate land in the entire country. Yet roads aside, almost every square foot of this "wasteland" is privately owned! What do private owners do with this seemingly worthless territory? Besides oil drilling and a little farming, it looks like they're playing the long game. The population of Texas is rapidly rising, and will ultimately justify their investment.
What would privatization do to our glorious national parks? Dramatically improve their management. As I keep saying, free markets do the good things that sound bad, and government does the bad things that sound good. In the current regime, government grossly underprices campgrounds and other facilities, and severely restricts their further expansion. This sounds good, but it's bad. Private owners, in contrast, would try to balance natural beauty against human convenience. This sounds bad, but it's good. The point of a park is to maximize total long-run human enjoyment, not avoid impact at all costs.
Large-scale privatization of government land is a wonderful opportunity for domestic charter cities. Want to start a new U.S. population center? Buy a few hundred square miles of uninhabited federal land and try your ideas. "Build it and they will come" overstates, but visionary billionaires like Elon Musk could plausibly build new metropolises from scratch.
I'm not crazy. I know that full privatization of government land is highly unlikely to happen. If even 1% were privatized over the next decade, I'd be amazed. My point is privatization is a massive missed opportunity. And since Build, Baby, Build is all about massive missed opportunities, I really wish I'd included it. If I ever publish an expanded second edition, I definitely will.
On April 29, 2024, the Harlan Institute and Ashbrook held the championship round for the 12th Annual Virtual Supreme Court competition. The top two teams presented oral argument at the Georgetown Supreme Court Institute in the case of Moody v. NetChoice. Presiding were Judge Royce Lamberth (District Court for the District of Columbia), Judge Gregory E. Maggs (U.S. Court of Appeals for the Armed Forces), Judge Emin Toro (United States Tax Court). Kevin Bizily and Maxwell Steinberg from Minnesota represented the Petitioner. Nathaniel Marks & Edward Napoli from Regis High School in New York represented the Respondent. After a well-argued round, the judges selected the Petitioners as the Champions, with Kevin Bizily as best oralist.
The students and their coaches offered these generous comments about the competition:
I was delighted with your last issue. I can testify from bitter experience that your Dr. Rothbard is entirely correct when he demonstrates that public ownership of lighthouses is the first step on the road to communism.
The point of the joke, on my reading, was not that libertarians were wrong to favor the privatization of lighthouses, but that they should make lighthouse privatization a low priority. For two reasons:
First, lighthouses are a tiny issue in the broad scheme of things. Divided by GDP, government lighthouse funding is a rounding error.
Second, the idea that privatized lighthouses would work well is speculative. Despite past experience and technological progress, we can't confidently predict that the reform will be a resounding libertarian success story.
You just have to flip these two reasons around to figure out what libertarians should prioritize. Namely: big issues with proven free-market remedies. Which was a major motivation behind my new Build, Baby, Build: The Science and Ethics of Housing Regulation. A non-fiction graphic novel, the latest Caplan book combines words and pictures to make academic research on housing an edge-of-your-seat experience.
(NA)
I gradually grokked the horror of housing regulation over the last fifteen years. Economists like Edward Glaeser and Joe Gyourko just kept publishing papers showing that government regulation has raised housing prices far above the physical cost of land and construction.
And what regulation has ruined, deregulation can repair.
It's tempting to look at America's most expensive addresses and repeat the top three principles of real estate: "location, location, location." But this glosses over the artificiality of today's locational scarcity. Since the dawn of the skyscraper, technology has allowed vast populations to simultaneously enjoy the world's top locations. The government response, in turn, has been to make building skyscrapers in desirable places nearly legally impossible.
Indeed, U.S. regulators view almost all multifamily housing with deep suspicion. That's why they zone a supermajority of residential land for single-family homes. But even the single-family supply is heavily restricted, because governments routinely set high minimum lot sizes to force builders to waste most of their land. Physically fitting six mansions on an acre is easy, but legally you're lucky to get a green light for one.
Averaging over the whole U.S., a conservative estimate is that regulation has doubled the price of housing. It's much worse in places like the Bay Area and Manhattan, and a minor issue in the countryside. But as a recent paper by Gyourko and Krimmel shows, regulation raises prices almost everywhere that lots of people actually want to reside.
Granted, if regulation doubled the price of chewing gum, it still wouldn't make sense for libertarians to prioritize the industry. The key supporting fact is that shelter is a large share of the average American's budget — around 20%. As a matter of arithmetic, then, halving the price of housing would cut the cost of living by 10%, raising the standard of living by 11%. (As you may recall, 1.0/.9≈1.11).
Even better, deregulation will deliver these gains beyond a reasonable doubt. Laissez-faire in housing is not a futurist Libertopia. A hundred years ago, U.S. housing markets were close to laissez-faire, and the least-regulated regions of the U.S. are still close to laissez-faire. Furthermore, we don't have to blithely assume vigorous competition will arise, because vigorous competition in the construction industry already exists. The total number of builders is immense, and even in our regulated world, many are champing at the bit to expand.
Indeed, the construction industry could revolutionize our lives for the better if it simply were free to deploy the technology of a century ago! Work on the Empire State Building started in 1930, and was complete just 410 days later. Imagine what industry would accomplish if we combined the light regulation of the past with the advanced technology of the present.
Almost all political thinkers like to keep up with the news cycle — to talk about the latest, most salacious topics. I've indulged this temptation myself more than once. But if your worldview has merit, you can do so much better than opine on the scandal of the century of the week. Housing deregulation realistically promises to enrich humanity by trillions of dollars. And all government has to do to make this happen is stop preventing it.
I am pleased to announce that my George Mason University colleague, economist Bryan Caplan, will be guest-blogging this week about his new book Build, Baby, Build: The Science and Ethics of Housing Regulation. Bryan is a leading public choice scholar, and author of several other well-known books, including The Myth of the Rational Voter,Selfish Reasons to Have More Kids, The Case Against Education, and Open Borders.
Here is a summary of the new book:
Why are housing prices in America so unbelievably high, especially in the country's most desirable locations? The superficial answer is "supply and demand," but the deep answer―the reason supply is so low―is a regulatory system that treats developers like criminals.
In Build, Baby, Build: The Science and Ethics of Housing Regulation, economist Bryan Caplan makes the economic and philosophical case for radical deregulation of this massive market―freeing property owners to build as tall and dense as they wish. Not only would the average price of housing be cut in half, but the building boom unleashed by deregulation would simultaneously reduce inequality, increase social mobility, promote economic growth, reduce homelessness, increase birth rates, help the environment, cut crime, and more.
Combining stunning homage to classic animation with careful interdisciplinary research, Build, Baby, Build takes readers on a grand tour of a bona fide "panacea policy." We can start realizing these missed opportunities as soon as we abandon the widespread misconception that housing regulation solves more problems than it causes.
And here are some early endorsements:
"Bryan Caplan and Ady Branzei have written a fantastically accessible and fantastically fun book explaining why housing is so expensive in the U.S. It is full of insight and sound economic reasoning. I can think of no better book to read for an introduction to understanding why land-use regulations have caused so much damage. It is a perfect book for your 17-year-old daughter or your 70-year-old uncle, for intro econ students or Nobel laureates, and for everyone in between."—Ed Glaeser, Fred and Eleanor Glimp Professor of Economics and chairman of the Department of Economics, Harvard University
"Bryan Caplan is a pioneer in the use of graphic novels to expound economic concepts. His new book Build, Baby, Build is thus a landmark in economic education, how to present economic ideas, and the integration of economic analysis and graphic visuals. If you want to learn the economics, ethics, and political economy of YIMBY― namely the freedom to build this is the very best place to start."—Tyler Cowen, Holbert L. Harris Chair of Economics at George Mason University and founder of Marginal Revolution
"The issue of building more is too important to be left for dry monographs. Fortunately, Bryan Caplan is on the case with another in his string of original, brilliant, and important books that is also readable and engaging. After my son read Open Borders, he asked me for recommendations of other graphic novels that were just as educational, insightful, and engaging. I finally have a second book to recommend to him."—Jason Furman, former chair of the Council of Economic Advisers and Aetna Professor of the Practice of Economic Policy, Harvard University
"Fabulous! Housing deregulation is an issue in which the libertarians have been changing the minds of the liberals (whether or not they admit it), as we see in liberal YIMBYism. This is the book where you can find the arguments advanced, both rigorously and entertainingly."—Steven Pinker, author of Enlightenment Now: The Case for Reason, Science, Humanism, and Progress
I will add that I have read the book myself, and I think it's a great achievement, even though I'm not normally a fan of the graphic novel format. In that respect, it's a worthy successor to the author's previous book in the same format, Open Borders (which I discussed here).
[A woman is arrested during a pro-Palestinian demonstration at the Freie Universität Berlin, May 7, 2024. (AP Photo/Markus Schreiber, used pursuant to license from AP Photo)] ((AP Photo/Markus Schreiber, used pursuant to license from AP Photo))
A very interesting item by Prof. Kevin Cope (Virginia), which I'm very happy to be able to pass along:
The recent mass arrests of pro-Palestinian demonstrators have left many asking how such suppression can be justified in a free society. Yet—despite some clear instances of excessive force—U.S. legal tolerance for protests is a global outlier, even among liberal democracies. Since October, U.S. public officials and college administrators have condoned most anti-Israel protests, including (for a while) long-term encampments that violate university rules. Many have provided police protection, even while some protestors voiced support for Hamas's October 7 massacre, lobbed arguably anti-Semitic insults, or called for further violence against Israeli Jews.
In Europe, officials are responding quite differently.
In the days and weeks after October 7, with the Israel Defense Force's retaliation in Gaza well underway, the Eiffel Tower was lit up with the Star of David, and crowds spontaneously sang the Israeli national anthem. Meanwhile, the French Interior Minister instituted a ban on all pro-Palestinian protests.
In Germany, 10,000 joined a pro-Israel rally, while public expressions of pro-Palestinian messages as benign as "stop the war" were prohibited. Berlin police announced that chanting "From the river to the sea, Palestine will be free" was a criminal offense. In Berlin schools, Palestinian flag colors and the kaffiyeh—a traditional Middle Eastern scarf now associated with Palestinian nationalism—were banned, while other ethnic apparel was permitted. The first pro-Palestinian demonstration was finally permitted in Hamburg in late October 2023, but with a limit on Palestinian flags and a prohibition on questioning Israel's right to exist. And similar to Germany, the British Home Secretary directed police that "From the river to the sea … " may "amount to a racially aggravated … public order offence," in some contexts, punishable by imprisonment.
5/13/1912: Seventeenth Amendment is approved by the House of Representatives. The Senate approved it the prior month. The Seventeenth Amendment was ratified in 1913.
"Unalive" refers to death by suicide or homicide. It can function as adjective or verb and joins similar phrasing — like "mascara," to mean sexual assault — coined by social media users [especially on TikTok -EV] as a workaround to fool algorithms on sites and apps that censor posts containing discussion of explicit or violent content.
And seeing that many members of [Catiline's] conspiracy were still assembled in the forum in ignorance of what had been done and waiting for night to come, with the idea that the men were still living and might be rescued, he cried to them with a loud voice and said: "They have lived." For thus the Romans who wish to avoid words of ill omen indicate death.
5/11/1942: Gordon Hirabayashi "failed to report to the Civil Control Station within the designated area." The Supreme Court upheld the constitutionality of his conviction in Hirabayashi v. U.S. (1943).
The liberal news media is full of false stories about how Judge Aileen Cannon of the United States District Court for the Southern District of Florida has delayed former President Donald Trump's trial unnecessarily for allegedly mishandling classified documents. But, in fact, the Biden Administration and its Attorney General, Merrick Garland, are themselves to blame for the current delay. Special Counsel Jack Smith claims to be an inferior officer of the United States, but in fact he holds no such office. Smith is a mere employee of the Department of Justice, and he lacks the power to initiate prosecutions. Lucia v. Securities and Exchange Commission, 585 U.S. __ (2018) holds that only officers of the United States can take actions that affect the life, liberty, and property of citizens.
Judge Cannon has asked for oral argument on June 21, 2024 on former President Donald Trump's motion to dismiss Special Counsel Jack Smith's indictment on the ground that Smith was unconstitutionally appointed to his current job because he is not an inferior officer. Washington, D.C. super-lawyer, Gene Schaerr, has filed an amicus brief in United States v. Trump on behalf of former Attorney Generals Edwin Meese III and Michael B. Mukasey, as well as me and Professor Gary Lawson, arguing that Jack Smith was unconstitutionally appointed to be an inferior officer, and Judge Cannon has asked Gene Schaerr to participate in the oral argument, which he has agreed to do.
The Appointment Clause of Article II, Section 2 provides that: "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Jack Smith claims to be an inferior officer of the United States appointed by the Head of the Justice Department, but he is instead a mere employee.
We argue in our amicus brief that Congress has never by law vested in the Attorney General as the Head of a Department the power to appoint inferior officers even though Congress has explicitly vested that power in the Heads of the Departments of Energy, Health and Human Services, Transportation, and Agriculture. The only power, which Congress has given to the Attorney General is the power to make a sitting U.S. Attorney a Special Counsel with jurisdiction to prosecute cases nationwide and outside his or her home district. Thus, the Delaware U.S. Attorney, David C. Weiss, currently has nationwide jurisdiction to investigate and prosecute Hunter Biden as a Special Counsel, and this appointment is completely constitutional. Similarly, former U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, was quite legitimately given nationwide jurisdiction to prosecute former Vice President Dick Cheney's Chief of Staff, Scooter Libby, in Washington, D.C. Fitzgerald got Libby convicted and sentenced to time in jail.
Jack Smith, however, was a private citizen, and not a sitting U.S. Attorney, when Attorney General Merrick Garland named him to be the Special Counsel who would investigate and prosecute Donald Trump. Smith's appointment as an inferior officer was thus unconstitutional, and therefore the cases against former President Donald Trump, which Smith is prosecuting in Florida and in Washington D.C. must be dismissed. Again, Congress has never by law vested in the Attorney General the power to appoint inferior officers
The 92 U.S. Attorneys are all superior officers who must be nominated by the President and confirmed by the Senate. This requirement of Senate confirmation of U.S. Attorneys has been a part of our law since the Judiciary Act of 1789—i.e. for 235 years. It is, to say the least, implausible that Congress would require Senate confirmation of the U.S. Attorney for Wyoming but not of a Special Counsel who is prosecuting a former and possibly future President in both Florida and Washington, D.C.
Senators have deliberately decided not to give Attorneys General the power to appoint inferior officers with power to initiate a prosecution because they want to have a say in the confirmation process over who can prosecute cases in their home states. If the Attorney General has the power to appoint prosecutors without Senate confirmation think of what he might do with that power in corrupt places like Cook Country, Illinois or New Orleans, Louisiana. No wonder the Senate grants to the Heads of four other Cabinet Departments the power to appoint inferior officers while denying that power to the Attorney General.
Former Attorney General Robert Jackson said in a December 1, 1940 speech at the Conference of U.S. Attorneys that:
"It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. ***
Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor."
Thank God Judge Cannon has scheduled oral argument on President Trump's motion to dismiss Jack Smith's prosecution of Trump for misuse of classified documents by a Justice Department employee who has not been nominated by the President and confirmed by the Senate. The judge should dismiss Smith's case, and the Eleventh Circuit, and the U.S. Supreme Court should affirm that dismissal.
If, at that point, Attorney General Garland still wants Trump's alleged misuse of classified documents investigated, as did not happen with former Obama Secretary of State, Hillary Clinton, then Attorney General Garland should follow the law and ask one of the 92 sitting, Senate-confirmed U.S. Attorneys to conduct any investigation that occurs. Attorney General Garland's failure to follow the law and the Constitution is a national disgrace. Judge Cannon should get a national round of applause.
Just as Justice Kavanaugh spoke to the Fifth Circuit Judicial Conference today, Justice Thomas spoke to the Eleventh Circuit Judicial Conference. (Justices commonly speak at the judicial conference for the circuit for which they are circuit justice.) As with Justice Kavanaugh's remarks, press was in attendance, but the reporting on Justice Thomas's remarks focused more on the sorts of things political reporters care about (his comments about the culture of Washington, DC) than those things that actually provide information on the functioning and potential future direction of the Court. (In this way, the reporting confirms comments about court coverage Sarah Isgur made at today's lunch at the Eleventh Circuit conference.)
For those who care about law and the courts, the most interesting aspect of Justice Thomas's remarks may have been his comments about the "expedited docket"—or what many people call the "shadow docket." Like Justice Kavanaugh, Justice Thomas expressed concerns about the pressure the increase in expedited filings place on the Court. Emergency filings seeking relief from extraordinary relief (such as when district courts issue national injunctions) "short circuit our process," Justice Thomas remarked, adding "The way we're doing it now is not a thorough way" of doing it.
Justice Thomas further noted that such filings have increased because advocates are getting more aggressive and clever in pursuing such legal strategies, putting the court on a compressed schedule, and lower courts are issuing more national injunctions. The latter, Justice Thomas remarked, are something the Court will "have to address."
Justice Thomas also echoed Justice Kavanaugh's approval of the new oral argument process. The new format, which combines traditional open questioning with seriatim questioning by seniority, is "more thorough" and "polite," even if it means arguments last longer.
Among some of the other tidbits from his remarks that may be overlooked, Justice Thomas said that the Court's composition after Justice Breyer was confirmed—and which remained stable for over a decade—was his "favorite court." That Court, Justice Thomas said, was like a family. It "may have been a dysfunctional family" but it was a family, he said. Something like the leak of the Dobbs opinion draft would have been "unthinkable" during that time.
Justice Thomas also praised Justice Sandra Day O'Connor, saying she deserves far more credit than she gets, and repeated concerns that a Court in which eight of nine justices attended the same two elite law schools does not "reflect the country." He also explained why he tries to make his judicial opinions clear and understandable to non-lawyers. It was also noted that in four years Justice Thomas will be the longest-serving justice in the Court's history.
The horrific attacks against Israel on Oct. 7 impacted us directly, with members of our community losing friends and family members. In the months since, we have mourned the loss of civilian lives - Israeli and Palestinian. We recognize the disheartening and disturbing conditions in Gaza. At the same time, we stand firm against Hamas - a terrorist organization committed to the destruction of the Jewish people.
While the Hopkins Jewish community possesses a variety of opinions regarding the Israel-Hamas war, we are committed to promoting peace, security and healing for all affected by this tragic war. But, irrespective of the conflict, it is unacceptable to risk the safety and security of students; the hatred espoused within the encampment puts every Hopkins student at risk.
Protesters - despite their stated desire to demilitarize both Gaza and Hopkins - call for violence against Jews. Some of these include:
"There is only one solution: Intifada revolution."
"Resistance is justified when people are occupied."
"BPD, KKK, IDF, you're all the same!"
"From the river to the sea, Palestine will be free."
"Anytime somebody comes and tells you that in order for there to be justice in Palestine, that the illegal, racist settler colony of Israel needs to be wiped off the face of the earth, what are you going to say? [Crowd response:] 'Smash Zionism.' This is the task."
Written on a tent in the encampment: "Theirs [sic] no such thing as a peaceful protest."
On a sign at the encampment: "Zionism upholds Nazi ideology and white supremacy."
"Some people think that victory is a ceasefire, these are people who haven't been paying attention because they've already shown that ceasefire just means pause. We're not here for a pause. Some people think that victory means peace, we think there's no such thing as peace without justice. And we know you only get peace and justice in victory. It means that your enemies have been defeated; it means that your enemies have been squashed; it means your enemies have been checked."
These are not calls for peace. These are not calls to improve the lives of Palestinian people. These are calls for violent attacks against all Jews: Jews in Israel, Jews in your classes, Jews in your community and Jews across the world.
These statements are antisemitic. We define Zionism as the right of the Jewish people to self-determination and statehood in our ancestral homeland. Denying this right is antisemitic. Denying our religious connections to the land is antisemitic. Calling for the destruction of the only Jewish state in the world "from the river to the sea" - home to 46% of the global Jewish population" - is antisemitic. It is unacceptable for outside parties to assert that something is not offensive to our community.
While encampmentstokenize minority anti-Zionist Jewish voices to justify their rhetoric and actions, national polling consistently shows broad Jewish support for the state of Israel, and the Jewish community at Hopkins is no exception. Israel is a critical part of our Jewish identities, and no student should be targeted based on their identity.
Calling the intifada - periods of intense violence, terrorist attacks and suicide bombings against Israeli civilians - "resistance" is sickening. Saying that all resistance, including the use of murder, rape and kidnapping is "justified" is not representative of the values of the University, Judaism or the United States. Referencing the Nazi ideology of the Final Solution is blatantly antisemitic.
Yet, these statements are regularly proclaimed in front of a defaced Hopkins sign for all Jewish and non-Jewish students to hear by people hiding their identities. Many protesters may not know what they are chanting - the connotations, allusions and meanings behind phrases thrown out by a faceless leader. You may not know what you are saying, but the groups who created these chants did - and Jews do too. We encourage everyone, protester or not, to do their own research and critically evaluate what they are saying. Ignorance is not an excuse for hate; it is your responsibility to educate yourself.
For centuries, antisemitism has contained the consistent assertion that Jews are responsible for a culture's greatest evil. In Christian Europe, we were falsely accused of being Christ killers. In Nazi Germany, we were smeared as communist race polluters. In the Soviet Union, we were besmirched as greedy, capitalist bourgeoisie. Now, encampments label us as "settler colonizers" and "Nazis" committing a "genocide." These words pervade their rhetoric with ancient antisemitic tropes.
The violence hasn't been limited to words; it has extended into the physical realm. Protestors have reportedly assaulted a member of the Jewish community - which the encampment dismissed as "baseless." With their identity obscured and groupthink rationality, protestors suddenly lose accountability and act in ways that are completely unacceptable - here or on any other campus.
It is one thing to condemn antisemitism, but actions speak louder than words.
The encampment organizers brought protesters from the broader Baltimore community onto campus. We haverepeatedlyseen on other campuses non-student affiliates making encampments sites of violence and vitriol. The wide calls for non-affiliate participation and antisemitic rhetoric used by the protesters attracted hateful individuals to our campus, including one who waved a swastika on N. Charles St. on May 2.
It only takes one person with ill intentions for a student to get hurt. It only takes one person for consequences that can never be taken back.
It is a stressful time on campus. As the Board of the Jewish Student Association (JSA), we want to reiterate that all Jewish community members at Hopkins have a home at Hillel. We are here for you. We are a strong community and welcome every student: whether you come to JSA events every day or have never stepped foot in our doors.
Critical thought and intellectual humility are the only ways to break through dogmatism and ideological stubbornness. Escaping echo chambers and doing the hard work of analysis allows us to understand each other and this conflict far better than we ever could alone. We are inspired by President Daniels, who wrote on May 2, "But I believe the much harder work is to now move beyond the shouting, the slogans, the call and response, and to engage in a rigorous and open-minded way with the university community on the agenda for change that you propose."
The Jewish community welcomes respectful dialogue as we work towards a better future for Israelis and Palestinians.
The Board of the Jewish Student Association.
Note that on the mayor's orders, the Baltimore police will not provide any assistance to Hopkins in dispersing the encampment, despite the fact that it's a clearly illegal trespass, and that many of the people at the encampment have no affiliation with Hopkins, creating a very real safety concern. The mayor quite wrongly has consistently suggested that the encampment is protected by the First Amendment.
But I don't want to let President Daniels and the Hopkins administration off the hook. Since last Thursday, he has been threatening students who remain at the encampment with discipline, while providing amnesty for those who leave peacefully. So far, no discipline has been forthcoming.
Today Justice Kavanaugh spoke at the Fifth Circuit Judicial Conference in Austin. I was pleased this session was open to the press, and saw several reporters in the room. The Washington Post has an early report.
Chief Judge Richman interviewed Justice Kavanaugh. It was a very engaging exchange. I thought Richman ably showed off the Justice's personal side. There were many questions about Justice Kavanaugh's daughters, and we learned that he took them to both a Taylor Swift concert and a Caitlin Clark basketball game.
Generally, these sorts of presentations repeat the same bromides, but Justice Kavanaugh made some points that (I don't recall that) he had made before.
First, Justice Kavanaugh addressed the declining number of cert grants. This term there will be about 60 merits decisions. Kavanaugh said that his ideal number would be about 75, and he observed that he has been pointing out cases that he would grant. I've praised this practice. Most of these cases are not high-profile, but they signal that Kavanaugh is closely monitoring the petitions, and flags to litigants what cases may get a grant in the future. Kavanaugh also said it is somewhat unfair to compare the present-day Court with the Court in the early 1990s when there were ~150 cert grants per year. Kavanaugh reminded us that when Justices Brennan and Marshall were on the Court, there were far more cert grants in death penalty and CrimPro cases.
One point that Kavanaugh did not address, that I have thought a lot about recently, is the "join three." With that tradition, if three justices were willing to grant cert, a fourth would provide a courtesy fourth vote–the so-called "join three." Justice O'Connor, as I recall, would frequently provide a "join three." This was how many death penalty cases were granted: Justices Brennan, Blackmun, and Marshall would vote for cert, and they would get a join-three. On the present Court, we routinely see cases with three dissents from denial, suggesting that there is no courtesy fourth vote. By my count, Justice Barrett had only onedissent from denial–she seems the Justice most hesitant to grant cert. I don't know if the "join three" is dead and buried, but it may be a vestige of a prior time.
Second, Justice Kavanaugh addressed the emergency docket–giving a shout-out to Professor Vladeck, who was at the conference. Kavanaugh spoke at some length about his opinion in Labrador v. Poe, which I have written about before. In particular, Kavanaugh explained that the predominating factor for these emergency cases is likelihood of success on the merits, rather than the balance of the harms, which generally even out. He mentioned that he had joined Justice Barrett's opinion in Does v. Mills, which focused on cert-worthiness, but Kavanaugh downplayed that factor, as he did in Labrador. I think Kavanaugh is exactly right. And that message was heard loud and clear by all the Fifth Circuit judges in the room.
Third, Justice Kavanaugh spoke about the process of drafting opinions. Kavanaugh explained that at conference, one of the hardest tasks is figuring out if there are five votes for a majority opinion–though he always favors unanimous opinions. As is well known, at conference each Justice gets to speak at least once before anyone speaks twice, starting with the Chief Justice. But after everyone speaks once, Kavanaugh said, it becomes something of a free-for-all. The Chief will call on people, like in school, Kavanaugh mentioned. Next comes the opinion writing process. Kavanaugh explained that when you see adverbs like "ordinarily" or "generally" in an opinion, those words were necessary to hold a majority opinion. Ditto for a footnote that seems to undermine everything the majority opinion said. Sometimes, Kavanaugh said, providing clearer resolution will have to wait for another case.
Fourth, Justice Kavanaugh addressed oral argument at the Court. For his first two terms, the Court followed the traditional one-hour limit. Kavanaugh said it felt frustrating when he would ask one question in a line of questions, and then get cut off by another Justice. Kavanaugh said he very much likes the new format, including the round-robin seriatim round. It lets him follow through on a line of questions from start to finish. He was also happy that Justice Thomas now has an opportunity to ask questions. Kavanaugh mentioned that not everyone is happy with the new format. He called out Paul Clement as one such skeptic; by contrast, Kavanaugh said, Lisa Blatt likes the format. (Clement & Blatt will give the SCOTUS roundup at the conference on Saturday morning).
Justice Kavanaugh also seemed quite relaxed and open. He was enjoying himself. The first five years of his tenure were remarkably chaotic. From the confirmation hearings to COVID to the assassination attempt, and everything in between. But he looked at ease now, and stayed afterwards to shake hands and take pictures with everyone. It is sometimes said that it takes a new Justice five years to find his or her rhythm. I think Kavanaugh is now hitting his stride. I've praised several of his opinions this year. I will, of course, reserve judgment till the end of June, but so far, this has been his most effective term on the Court.
