The Volokh Conspiracy

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

The Volokh Conspiracy

Executive Power

"The Originalist Case Against Overturning Humphrey's Executor," by Lorianne Updike Schulzke

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I was talking to Prof. Lorianne Updike Schulzke (who teaches at Northern Illinois and is visiting this semester at Yale), and she brought up some interesting thoughts on the President's supposed inherent constitutional power to dismiss independent agency officials. She was kind enough to pass along this quick summary; I'm not an expert on the field myself, but I thought it was worth passing along in turn:

Serious Originalists should pause before solidifying President Trump's control over independent agencies by overturning Humphrey's Executor. Yesterday the DC Circuit stayed the reinstatement of Gwynne A. Wilcox of the National Labor Relations Board (NLRB), potentially under the theory that Seila Law throws Humphrey's Executor into doubt.

Yet as I demonstrate in a paper just out in the Connecticut Law Review, Un-fathering the Constitution, the historical grounding of Seila Law in Madison's vision of executive removal is tenuous at best. In fact, more careful historical analysis demonstrates that Madison's vision should not dominate executive removal.

Further, this history shows that the original Congress anticipated a role for itself in limiting the president's removal power. If this history is to have any sway (and Originalism dictates that it should), Humphrey's Executor should be kept intact and greater power over independent agencies should not be granted to the Trump administration.

Congress began creating independent agencies in the 1880s, when they established the Interstate Commerce Commission to regulate railroads. Since then, the President has made top appointments for such agencies, and Congress lower appointments according to Article II, Sec. 2 of the Constitution. Under Humphrey's Executor, the appointees who run these agencies have a quasi-legislative role (being set up by Congress), and therefore the president's ability to control and fire them is limited.

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Criminal Justice

Important Questions for Boeing's CEO at Tomorrow's Senate Commerce Committee Hearing

Boeing CEO Kelly Ortberg should explain whether Boeing continues to plan to plead guilty to conspiring to defraud the FAA, or whether it will attempt to shirk its responsibility for the deadliest corporate crime in U.S. history.

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Tomorrow, Senator Ted Cruz has scheduled a hearing entitled "Safety First: Restoring Boeing's Status as a Great American Manufacturer." Boeing CEO Kelly Ortberg is scheduled to testify about steps Boeing has taken to address safety issues that have arisen in recent years. Foremost among these issues is Boeing's conspiracy to defraud the FAA about the safety of its 737 MAX aircraft—a proven criminal conspiracy which directly and proximately led to two crashes of Boeing 737 MAX aircraft.

Like Senator Cruz, I truly hope that Boeing will, in its next chapter, be restored to its status as a great American manufacturer. But moving onto that next chapter is not possible until Boeing concludes its current chapter. Over the next few weeks, Boeing's leadership will decide how it will conclude the criminal case that has been pending against it for more than four years. Boeing's decision will shed considerable light on whether it truly committed to again becoming a great and responsible manufacturer.

As is well known, Boeing defrauded the FAA about the safety of its 737 MAX aircraft. In January 2021, Boeing entered into a deferred prosecution agreement (DPA) with the Justice Department, in which it admitted the crime. In exchange for the Government's agreement to defer prosecution, Boeing promised to address safety issues connected with the 737 MAX and, more broadly, its internal safety procedures.

I am representing (on a pro bono basis) some of the two crashes victims' family members. As I have blogged about before (see hereherehere, and here), the DPA was concluded in violation of the Crime Victims' Rights Act because the parties (the Justice Department and Boeing) kept that agreement secret from the 346 families who lost loved ones in the two crashes. Indeed, Senator Cruz wrote a powerful amicus brief supporting the families' position that they represented "crime victims" of Boeing's conspiracy. Senator Cruz explained that "Boeing engaged in criminal conduct that defrauded government regulators and left hundreds of people dead in preventable plane crashes.… This is not a mine-run fraud case where some low-level employee lied or committed a technical violation; it is a long-running conspiracy that directly led to some of the worst air travel disasters of the 21st century."

During the DPA's three-year term, Boeing failed to deliver on its promises to improve safety processes. In May, 2024, Boeing's failures led the Justice Department to declare that Boeing had breached its DPA obligations, setting up the issue of how to resolve the pending conspiracy charge. Last summer, Boeing agreed to plead guilty. But after the victims' families objected to the proposed "sweetheart" deal, Judge O'Connor rejected the proposed plea agreement for various reasons. Judge O'Connor then directed the parties to explain how they intended to proceed. Whether Boeing intends to plead guilty to the charge, go to trial, or try to do something else is currently pending.

During the last week, news reports have suggested that Boeing is now lobbying the Justice Department to cut some kind of new deal. According to these reports, Boeing wants an even sweeter deal in which it would not have to even acknowledge that it committed a crime, much less that its senior leadership engaged in a "long-running conspiracy that directly led to some of the worst air travel disasters of the 21st century." If these reports are true, Boeing is now seeking to shirk its responsibility for its past crime and simply jump to the next chapter in its corporate history.

Following these reports that Boeing was waffling on its previously expressed plan of pleading guilty, the judge handling the case (Judge Reed O'Connor in the Northern District of Texas) sua sponte set a trial date in June to finally resolve the case.  Boeing is, of course, free to pursue its own interests as it sees them. But it is important to highlight that Boeing seems to want to have it both ways—one the one hand, appearing to be contrite about causing the crashes, while seeking to skate through the criminal justice system without admitting its guilt on the other.

For example, last summer, at another Senate hearing, outgoing Boeing CEO Dave Calhoun turned to apologize directly to the family members in the gallery who lost loved ones in Boeing crashes and said:

I would like to speak directly to those who lost loved ones on Lion Air Flight 610 and Ethiopian Airlines Flight 302. I want to personally apologize, on behalf of everyone at Boeing. We are deeply sorry for your losses. Nothing is more important than the safety of the people who step on board our airplanes. Every day, we seek to honor the memory of those lost through a steadfast commitment to safety and quality.

This made for good theater—while the cameras were rolling during Calhoun's testimony. But Calhoun's statement appears to have been carefully crafted to avoid acknowledging the full scope of Boeing's crime. A few lowlights are worth recounting, which are all clearly established in an earlier congressional report, internal Boeing emails, an SEC investigation, and Boeing's own admissions.

Boeing's conspiracy involved its Chief Test pilot and others who deceived the FAA into believing that there was no need to include information about a new, powerful software system on the 737 MAX (called MCAS) because MCAS could only activate during
rare situations—not during routine flight operations. By concealing MCAS's expanded operational scope from the FAA, Boeing defrauded the FAA and obtained a low-level (less rigorous level) of training for pilots transitioning to fly to the new 737 MAX aircraft.  And pilots flying the 737 MAX aircraft were not given relevant information about the scope of MCAS and how to respond to improper MCAS activation—which could produce a crash.

Tragically, this was no mere theoretical possibility. On October 29, 2018, Lion Air Flight 610, a Boeing 737 MAX, crashed shortly after takeoff into the Java Sea near Indonesia. All 189 passengers and crew on board died due to improper MCAS activation, which the pilots did not respond to because they had not been trained in proper responses. After the Lion Air crash, Boeing investigators quickly identified MCAS as the cause. But rather than be forthcoming about what had  happened, Boeing attempted to focus attention on the foreign pilots as the accident's central cause. However, they did not disclose that one of Boeing's own test pilots in late 2012 had failed to recover from uncommanded MCAS activation in a flight simulator. This was a fundamentally important event that Boeing chose not to share with the FAA or its MAX customers.

While Boeing knew the deadly truth about MCAS, it concealed that truth from pilots and the public. For example, on November 13, 2018, then-Boeing CEO Dennis Muilenburg appeared on the FOX Business Network and claimed that Boeing had been "very transparent on providing information," the MCAS procedure was already "part of the training manual," and the "737 MAX is a very safe airplane." These were false statements—all designed to keep Boeing's stock price from declining further and to buy time for Boeing's engineers to continue working behind he scenes to fix the MCAS problem. In other press releases, Boeing failed to mention that it had identified an ongoing "airplane safety issue" associated with MCAS  and that it feverously working on a planned software redesign. Indeed, Boeing did not mention MCAS at all. Instead, at the specific direction of CEO Muilenburg, Boeing lied to the world, saying that "[a]s our customers and their passengers continue to fly the 737 MAX to hundreds of destinations around the world every day, they have our assurance that the 737 MAX is as safe as any airplane that has ever flown the skies."

A stunning example of how Boeing hid the truth is how it refused to answer pointed questions from Ethiopian Airlines pilots (information that the capable legal team I am working with pried out of Boeing through civil discovery). Shockingly, on December 1, 2018, the Ethiopian Airlines Head of Flight Operations emailed Boeing with three questions from the group's pilots about its directions to pilots in the event of uncommanded and erroneous MCAS activation. Senior Boeing officials declined to answer two out of the three questions. If Boeing had responded to each of the questions instead of refusing to answer them, the pilots' ability to respond to the situation it described would have been full explained, likely preventing the crash of flight ET 302 on March 10, 2019 … and saving 157 lives. But answering the questions would have revealed the truth about the serious MCAS problem—imperiling Boeing's stock price.

At the Senate Commerce Committee hearing tomorrow, I hope that the Senators will explore these questions.  The key issue now is whether is Boeing still apologizing and willing to admit it criminally caused 346 deaths? If so, how does it explain recent news reports that its lawyers are working behind the scenes to cut another deal that would avoid any accountability for these losses? Has Boeing considered the devastating harm that it will cause to the 737 MAX victims' families if it manages, through high-powered lawyering and back-room deal cutting, to avoid pleading guilty to its deadly crime?

Perhaps such a deceitful maneuver will lead to some short-term advantage. But in the long run, such an outcome would signal that Boeing will do whatever it takes to avoid admitting a mistake, even a deadly one. That path does not seem calculated to return Boeing to the status of being one of America's great manufacturers. The Senators holding tomorrow's hearing should ask CEO Ortberg whether he plans to have his company admit in court the deadly crime it has committed.

Update: I changed the punctuation in the subtitle.

Immigration

Lash's Last Stand

Evan Bernick's second in a series of guest-blogging posts: Part II of a critique of an important defense of the constitutionality of Donald Trump's executive order on birthright citizenship.

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Yesterday I published a critical review of a document that Kurt Lash described several weeks ago as a "completed article." Within several hours, I learned that it is not in fact complete. Shortly after my critique went live, Lash posted a revised draft. The latest revisions aren't substantial. But readers should be aware that I'm firing on a moving target and that eventually, I'll have a full-length critique of his (actually) completed article.

I'll finish up with Lash's contrarian take on birthright citizenship by doing three things. First, I'll critique his bizarre treatment of the children of enslaved people and Confederates. Then I'll put to rest a claim that Lash makes about the importance of parental allegiance to the few exceptions to birthright citizenship recognized by the time of the Fourteenth Amendment's ratification. Finally, I'll discuss Lash's treatment of Indian law—roughly, the law defining and regulating the relationships between the government of the United States and that of 575 federally recognized Native nations and their citizens. Although Lash has never written anything substantial about Indian law, Indian law is the source of a crucial analogy which he uses to argue for an exception to birthright citizenship that did not exist in 1868. I'll show that the analogy doesn't work.

Loyal Slaves? Loyal Confederates?

As Lash recognizes, the most damning defect of allegiance-based accounts of the Citizenship Clause which turn upon reciprocal consent (on the part of citizen to allegiance and the sovereign to protection) is that they cannot explain how the Clause performed the function that literally everyone (even DOJ lawyers defending the anti-birthright EO) agrees that it was designed to perform: the nullification of Dred Scott v. Sandford. Neither enslaved people nor their children consented to be kidnapped and imported as property into the United States, and the United States did not consent to the foreign slave trade either following a congressional ban in 1808. No theory of reciprocal consent can, I think, overcome the Dred Scott problem, and I think Lash agrees.

But recall that Lash does link birthright citizenship to parental allegiance and conceptualizes allegiance as loyalty to sovereign power. Just how is it that people forced into the United States and subjugated by the laws of enslaving states can be determined to be loyal to the United States? Why would they (in Lash's terms) have "fidelity towards" sovereign power of that nature?

Lash's solution to this apparent problem is an extraordinarily strong presumption in favor of loyalty. How strong? Strong enough that Lash can assert that "[n]othing about that context suggests, much less involves proof of, refused or counterallegiance."

Seriously? It seems obvious that any presumption in favor of the loyalty of enslaved people to the sovereign on whose soil they were enslaved would be unwarranted. What of the countless souls who tried to flee slavery? Were those who agreed (as Frederick Douglass initially did) with William Lloyd Garrison that the Constitution of the United States was a covenant with hell, loyal to the United States? Was Douglass loyal to the United States when he offered a qualified defense of killing slavecatchers who were empowered by federal law? Was he disloyal, then loyal? These are puzzles that Lash created for himself.

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Dear Harvard: You Have $50 Billion in the Bank - Use It Now

Isn't one of the reasons you have built up an endowment is to protect your integrity as an institution of higher learning from political assault?

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In a statement released yesterday, the Administration announced that it would be undertaking …

"… a comprehensive review of federal contracts and grants at Harvard University and its affiliates … as part of the ongoing efforts of the Joint Task Force to Combat Anti-Semitism. The Task Force will review the more than $255.6 million in contracts between Harvard University, its affiliates and the Federal Government. The review also includes the more than $8.7 billion in multi-year grant commitments to Harvard University and its affiliates to ensure the university is in compliance with federal regulations, including its civil rights responsibilities. Today's actions by the Task Force follow a similar ongoing review of Columbia University. That review led to Columbia agreeing to comply with 9 preconditions for further negotiations regarding a return of canceled federal funds."

[NB:  While many people have been describing Columbia as having "settled" its dispute with the Administration, this announcement makes clear that the Administration views the agreement with Columbia as having settled only the "preconditions for further negotiations regarding a return of canceled federal funds." I.e., "You're not off the hook yet, and we have not yet decided to 'return … canceled federal funds'"]

These actions also follow a series of parallel actions targeting a number of other universities (U. Penn, Georgetown Univ.) as well as a number of large for-profit law firms (Paul Weiss, Perkins Coie, Covington and Burling, Skadden Arps, WilmerHale), similarly threatening each of them with a cut-off of federal money (and, in the firms' case, a denial of access to federal agencies on behalf of their clients).

One can understand the fear that this has generated for law firms and for universities.  Law firms - unlike universities - don't have endowments, and they are, generally speaking, vulnerable to the kind of severe financial shock that Trump's action might cause them.  Some have caved in rather quickly, because of that. [Some - including Jenner and Block, Perkins Coie and, I'm happy to note, WilmerHale, where I'm an alum - have chosen to fight back rather vigorously].

Universities are in a much better position to fight back, because they sitting on top of immense piles of money that they can use to offset, at least in the short-term and even, if necessary, in the longer term, the withdrawal of federal money.

Obviously, $255 million coming in through federal contracts (like the $400 million and $190 million that were cited as Columbia's and Penn's share of federal monies) is a lot of money.  But Harvard has an endowment of $51 billion; the interest alone can probably cover a good chunk of the $255 million in lost federal money. Penn's endowment is around $22 billion, Columbia's is $14 billion or so.  They could each survive for many years - until long after the Trump Administration is just a memory - without a nickel of federal money coming in, if they're willing to draw down those endowments.

Isn't that the point of having an endowment? To allow you to weather political storms like this with your integrity as an institution of higher learning intact (and even enhanced)? Keep in mind that, for all of the reasons set forth in the "Statement from Constitutional Law Scholars on Columbia," Trump's actions are largely unlawful; he neither has the statutory authority to unilaterally determine whether recipients of federal funds are complying with their responsibilities, nor may he use the withholding of federal grants and contracts as a means of punishing individuals or firms for exercising their constitutional rights.

So you'll get much of the money back, in the end. There are large principles - of academic freedom, and freedom of speech, thought, and inquiry - at stake here, and if you're not willing to use that $50 billion to protect you from undue political interference, you're too close to being just a hedge fund that happens to hold some classes on the side.

Politics

VanDerStock is NetChoice Redux: A Sharply-Divided Court Threads The Needle With A "Facial Challenge" Analysis

The Court may have overruled Chevron, but it has just inadvertently created a far more powerful deference doctrine with Salerno, all in service of narrowly reversing the Fifth Circuit.

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For more than a decade, I have proudly represented Defense Distributed in a wide range of matters. Most of these cases have ended in defeat. Yet, I do not feel defeated. In case after case, courts have recharacterized our complaints, distorted the usual rules about venue, refused to rule on issues that were plainly presented, and other shenanigans. In 2020, I wrote about early chapters of the litigation. And one day, I may write a book about this never-ending saga. For now, it is enough to say that Bondi v. VanDerStock is the latest chapter in this book. But wait--no such book about this case actually exists. And artifact nouns be damned, no firearms exist in this case either.

Reading this decision was a frustrating experience. I am intimately familiar with how this case was litigated since the outset. Yet, the Court's approach to the case was completely foreign--so foreign, in fact that it would be unrecognizable to the lawyers and judges who adjudicated the case below.  

I echo Steve Halbrook's post:

That characterization [of the Plaintiffs' case] is hard to square with plaintiffs' briefs in the Supreme Court. . . . Justice Alito was therefore correct to state in dissent that the Court's treatment of plaintiffs' arguments was "unwarranted and extremely unfair."

Also unfair was the Court's twisting of a supposed "concession" made by counsel at argument—that they had no "quarrel" with the ATF's prior practice of regulating certain unregulated frames or receivers that had reached a critical stage of manufacture. But as the argument transcript makes clear, that concession was made with respect to the argument that plaintiffs should still win even if the GCA covers some unfinished frames or receivers—i.e., the argument the Court refused to consider. See Tr. at 59, 84. Whatever the reason, the Court chose to engage only a caricatured version of plaintiffs' arguments.

Justice Alito's dissent is quite right:

The Court decides this case on a ground that was not raised or decided below and that was not the focus of the briefing or argument in this Court. Specifically, the Court concludes (1) that respondents mounted a "facial" challenge to a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule implementing provisions of the Gun Control Act of 1968, (2) that a party making such a challenge must meet the test that applies when a statute is challenged as facially unconstitutional (what I will call the Salerno test), and (3) that respondents cannot satisfy that demanding test. . . .  But I am not certain that the Salerno test should govern. . . . Thus, in both the District Court and the Court of Appeals, the parties appear to have proceeded on the assumption that the question presented was simply whether the ATF rule exceeded the agency's au-thority under the Gun Control Act. The Government defended the rule as a correct interpretation of those statutory provisions and made no mention of the Salerno test.4 And for the most part, that was the position advanced in the Government's briefs in this Court.

In many regards, VanDerStock felt like a redux of NetChoice--especially with Judge Oldham being reversed in both cases on similar grounds. Somehow, none of the parties or judges in NetChoice realized there was a problem with the facial challenge that was brought. And somehow none of the parties or judges in VanDerStock realized there was a problem with the facial challenge that was brought. Can this blame be placed on the parties and lower court judges? Or is it simply the case that the Court used the "facial" challenge to avoid ruling on a difficult case?

Justice Gorsuch's majority opinion in VanDerStock further reminded me of his concurrence in Rahimi: in both cases, Gorsuch invoked the facial challenge issue to stop short of a broader pronouncement. In VanDerStock, it felt like Justice Gorsuch was walking on a tight-rope. It's possible Gorsuch did this in order to keep the five members of the majority together. It is also possible that Gorsuch did this to keep himself in the majority. My prediction at oral argument was that the Chief assigned this case to Justice Barrett. But maybe Roberts gave the opinion to the most tentative member of the majority, Gorsuch. It is also possible that Justice Barrett initially wrote the majority opinion that squarely ruled against the government on the merits, but Gorsuch and Kavanaugh wouldn't join that opinion, and Barrett lost the majority opinion, so Justice Gorsuch's concurrence became the majority. (I hinted at that possibility here.) We will find out if anyone but Barrett has Medical Marijuana v. Horne.

The crux of the analysis appears on Page 7 of the slip opinion:

As presented to us, this case does not ask us to resolve whether ATF's new regulations in §478.11 and §478.12 may be lawfully applied to particular weapon parts kits or unfinished frames or receivers. Instead, the plaintiffs have pursued what the lower courts called a "facial" pre-enforce-ment challenge to the agency's authority to regulate any weapon parts kits or unfinished frames or receivers. . . . Nowhere in either of their briefs before us do the plaintiffs dispute that assessment. Accordingly, we take it as given for our purposes here. [FN2]

FN2: The dissents raise a number of questions about what test courts should apply when a party contends that an agency has acted in excess of its statutory authority in a pre-enforcement challenge under the APA. Post, at 7 (opinion of THOMAS, J.); post, at 3 (opinion of ALITO, J.). But the theories the dissents proceed to advance were not pressed or passed upon below, nor did the parties make them before this Court. Cf. post, at 5 (opinion of ALITO, J.) (suggesting that the Court ask for supplemental briefing). In these circumstances, we believe the better course is to leave further analysis of the proper test for another day and address the par-ties' dispute as they have chosen to frame it. Nor, on remand, may the parties seek to inject arguments about the proper test that they did not pursue here.

Justice Thomas disagrees:

The majority takes a different approach. Asserting that the plaintiffs conceded to having brought a " 'facial' " chal-lenge, the Court "take[s]" this characterization "as given," and analyzes the challenge as a facial attack.3

FN3: While the Government characterized the plaintiffs' lawsuit as a facial challenge in passing, see ante, at 7, the parties did not seriously litigate the relevant standard, see post, at 3 (ALITO, J., dissenting). And, at oral argument, plaintiffs' counsel appeared to endorse a standard similar to the one that the Fifth Circuit applied. See Tr. of Oral Arg. 80 (arguing that ATF would have "gone beyond their authority" by defining "frame or receiver" to "include items that may readily be converted to frames or receivers").

And Justice Alito makes the argument more forcefully:

The Court relies on the use of the term "facial" in their complaints, but that characterization of their challenges did not constitute agreement with the proposition that a facial challenge to a regulation must satisfy the Salerno test. And in fact respondents never conceded that point. They did not address the issue at all in their briefs, and at no point during the lengthy oral argument in this case were they asked about that question. Holding that they conceded the point is unwarranted and extremely unfair. And in any event, we should adjudicate a facial challenge under the right test regardless of the parties' arguments. See Moody v. NetChoice, LLC, 603 U. S. 707, 779–780 (2024) (ALITO, J., concurring in judgment).

I will let others review the record, and determine whether the majority's analysis is a fair characterization of the pleadings in the case. But it is enough to say here that Judge Oldham and some other very smart federal judges apparently missed a glaring defect in the papers. Likewise, California v. Texas found that the Plaintiffs' strongest standing argument was forfeited. The pattern continues. 

I also agree with Justice Thomas's conclusion: if the Court is right about applying Salerno to APA challenges, virtually any regulation enacted will survive a facial challenge:

Treating challenges to regulatory definitions as "facial challenges" has substantial implications. If a regulatory definition survives APA challenge so long as just one item it covers also happens to be covered by the statute it pur-ports to interpret, it is difficult to understand how an agency would ever promulgate an invalid definition. So long as it imports the definition Congress laid out in the statute, the agency can sweep in whatever additional con-duct it wishes. No matter how far the agency expands its regulatory definition, the statutory definition inevitably will capture at least some of it.

Justice Alito draws similar conclusions:

Applying the Salerno rule in a case in which a rule is challenged under that provision as exceeding the agency's statutory authority may have far-reaching consequences. As a commentator has observed, "Salerno would seem to dictate that a plaintiff [who challenges a rule] cannot ever win unless he can show that there is 'no set of circumstances' in which the regulation would be consistent with the statute. And because it would take an extraordinarily obtuse agency to write a regulation so completely wrong as that, applying Salerno in the statutory context would seem to dictate that plaintiffs would always lose." S. Buck, Salerno vs. Chevron: What To Do About Statutory Challenges, 55 Admin. L. Rev. 427, 438 (2003). Thus, this extension of Salerno would represent a huge boon for the administrative state.

The Court may have overruled Chevron, but it has just inadvertently created a far more powerful deference doctrine with Salerno, all in service of narrowly reversing the Fifth Circuit. Is this what Justice Gorsuch wrought?

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Politics

Being an "Immigrant Professional" Doesn't Cut in Favor of Pseudonymity

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From Thursday's decision by Magistrate Judge Alistair Newbern in Doe v. Brooks Automation US LLC:

Doe alleges that, while working at Brooks, she "experienc[ed] targeted harassment and discrimination based on her gender, national origin, and physical disability[.]" Specifically, she asserts Title VII and ADA claims based on alleged gender discrimination in Brooks's hiring practices, retaliatory reassignment of her work responsibilities, verbal harassment, exclusion from a group photo due to her disability, and reputational harassment and defamation. Doe alleges that she "was coerced into accepting the terms" of a "garden leave" "to avoid forfeiting her annual bonus and risking her work visa status." ["Garden leave" appears to refer to paid leave preceding being dismissed. -EV] She further alleges that Brooks "delayed [her] green card process and ultimately halted it in retaliation for [Doe's] engagement in [ ] activities" protected by federal law. Doe states that Brooks "forced termination" of her employment and that her manager and another employee continued to defame her after her employment with Brooks ended….

Doe argues that the Court should grant her permission to proceed under a pseudonym because her complaint includes "serious allegations of discrimination, harassment, retaliation, and defamation by her former employer" and "[p]ublicly disclosing [her] identity could expose her to further retaliation by [Brooks] or its associates, negatively impacting her future employment opportunities and professional reputation." She states that she "has already suffered significant reputational harm and emotional distress due to [Brooks's] retaliatory actions, and" argues that "public disclosure of her identity in this lawsuit may exacerbate these harms" by "exposing her to additional scrutiny and compromising her standing within her industry." Doe argues that, "[a]s an immigrant professional, [she] is particularly vulnerable to potential repercussions[.]"

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Guns

Second Amendment Roundup: Supreme Court Decides VanDerStok

Narrow decision leaves ATF regulation in limbo.

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On March 26, the Supreme Court decided Bondi v. VanDerStok, holding that ATF's 2022 regulatory expansion of the definitions of "firearm" and "frame or receiver" is not facially void.  The Court read the proceeding as a facial challenge only and offered no opinion on whether the regulation would be valid as applied to specific items.  As long as the definitions may be validly applied to at least something, Justice Gorsuch wrote for the majority of seven justices, they are facially valid.  Justices Thomas and Alito dissented.

The Gun Control Act (GCA) defines "firearm" in part as "(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon…."  18 U.S.C. § 921(a)(3).  The ATF rule added to (A) "weapon parts kits" that are "designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive."  And it added to (B) "a partially complete, disassembled, or nonfunctional frame or receiver."

According to the Court, "this case does not ask us to resolve whether ATF's new regulations . . . may be lawfully applied to particular weapon parts kits or unfinished frames or receivers. Instead, the plaintiffs have pursued what the lower courts called a 'facial' pre-enforcement challenge to the agency's authority to regulate any weapon parts kits or unfinished frames or receivers."

That characterization is hard to square with plaintiffs' briefs in the Supreme Court. Indeed, plaintiffs expressly argued that "the Rule is invalid regardless of whether the GCA is read to include only functional frames or receivers" and regardless of the fact that the GCA does cover kits if they "contain[ ] a frame or receiver." See Pls. Br. 15, 35 (emphasis added). Justice Alito was therefore correct to state in dissent that the Court's treatment of plaintiffs' arguments was "unwarranted and extremely unfair."

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Free Speech

"On Not Signing Most Open Group Letters by My Fellow Legal Academics"

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An excerpt from yesterday's post by my UCLA colleague Stephen Bainbridge:

Last week, I signed an open letter to the Delaware legislature by a group of corporate law academics addressing aspects of Delaware SB 21, which was then pending before the Delaware House.

This week, as you may have seen, 80 out of the ~120 Harvard law school faculty signed a group letter protesting certain Trump administration actions--especially those targeting law firms--as being detrimental to the rule of law.

Predictably, where Harvard leads, the rest of legal education follows. I hear rumors of similar letters in the works at some law schools or among faculty at multiple law schools.

I have been asked to sign some. But I'm not going to do so.

First, however, let me emphasize that I share the signer's concerns about the way the Trump administration is punishing law firms of which the administration disapproves. The use of unilateral executive action is inconsistent with the rule of law. This is true even though I think some of what some of the law firms did to incur Trump's wrath was seriously problematic. In particular, Perkins Coie played a major role in commissioning and disseminating the Steele dossier, which has been widely and effectively discredited. In effect, they committed election fraud. Having said that, I believe Trump should have had the Justice Department investigate to determine if laws were broken rather than unilaterally imposing punishment by executive decree. If the Justice Department concluded laws were broken by the firm, then prosecute the firm. That is how the system is supposed to work. That is how the rule of law is supposed to work.

But I have three reasons for not signing a version of the Harvard letter….

Go to the post for those reasons.

Free Speech

No Pseudonymity for Yale MBA Student Suing Over Discipline for Alleged Use of AI on Exam

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From today's decision by Judge Sarah Russell (D. Conn.) in Doe v. Yale Univ.:

John Doe brought this action after he was suspended from graduate studies at the Yale School of Management ("SOM"). After completing his undergraduate degree at Rice University in 2012, Doe pursued a career as an entrepreneur and investor. Doe enrolled in 2023 in SOM's Master of Business Administration for Executives (EMBA) program as a member of the class of 2025.

In the summer and fall of 2024, SOM convened disciplinary proceedings against Doe after an instructor accused Doe of using generative Artificial Intelligence (AI) during an examination. After various proceedings, SOM found that Doe engaged in academic misconduct; in response, SOM imposed a one-year suspension from campus and a mandatory "F" grade in the class.

Doe asserts in his Complaint that SOM instructors and administrators scrutinized his exam because he is a non-native English speaker {Doe is a French national and a United States resident}, that administrators retaliated against him after he accused them of national origin discrimination, and that SOM disciplined him without regard to the procedural safeguards for students provided by SOM's Honor Code.

Doe sues Defendants for breach of contract, breach of the implied covenant of good faith and fair dealing, national origin discrimination in violation of Title VI, retaliation in violation of Title VI, intentional infliction of emotional distress, and negligent infliction of emotional distress. Doe seeks money damages as well as declaratory and injunctive relief removing the mandatory "F" grade from his transcript and permitting him to resume studies immediately at SOM.

The court doesn't deal with the substantive claims, but concludes that Doe can't proceed under a pseudonym:

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Judge James C. Ho: "Fighters, Climbers, and the War for the Judiciary"

Remarks delivered at the Texas A&M Journal of Law & Civil Governance Banquet

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I am proud to serve on the Board of Advisors of the Journal of Law & Civil Governance at Texas A&M. My article, Bilateral Judicial Reform, was published in the inaugural issue, alongside contributions from Senator Mitch McConnell, Judge Reed O'Connor, and Judge James C. Ho. This past weekend, Judge Ho also delivered remarks at the journal's banquet gala. I am happy to share Judge Ho's speech, which will be published later in the journal.

Fighters, Climbers, and the War for the Judiciary

James C. Ho

We're here to celebrate the launch of a new law journal.  But as my law clerks have told me, there are over a thousand law reviews in Westlaw's law review database.  Why on earth do we need another?

How you answer that question may depend on how you view the legal academy—and how you think much of the academy views our country and our Constitution.

As Americans, we believe that we should be governed by the people—not by lawyers or law professors.  We didn't fight a Revolutionary War to replace one king in royal garb with hundreds of kings in judicial robes.

Our legal system should only decide legal disputes—not political ones.  Political disagreements should be resolved through elections—and by officials directly accountable to the people.

In sum, our legal system is supposed to be politically neutral.

But would anyone seriously claim that the median academic or most legal elites are in fact politically neutral—and not systemically, institutionally biased against essentially half the country?

I would submit that therein lies the pitfalls—as well as the potential—for a new law journal.

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Immigration

Evan Bernick, Guest-Blogging About Birthright Citizenship

Bernick is a leading academic expert on the Fourteenth Amendment.

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The Volokh Conspiracy and I are pleased to welcome guest-blogger Prof. Evan Bernick. He is a law professor at Northern Illinois University, and author of numerous works on constitutional theory and the Fourteenth Amendment. Evan will be guest-blogging about the ongoing debate over the legality of President Trump's executive order denying birthright citizenship to children of undocumented immigrants and immigrants in the US on temporary visas.

Evan is coauthor (with Anthony Michael Kreis and Paul Gowder) of an important forthcoming Cornell Law Review Online article on the birthright citizenship controversy. He is also coauthor (with Randy Barnett) of The Original Meaning of the Fourteenth Amendment: Its Letter and Spiritone of the leading analyses of the the Fourteenth Amendment.

Interestingly, Evan and Randy are on opposite sides of the current birthright citizenship controversy. See Randy's NY Times op ed (coauthored with Ilan Wurman) offering a partial defense of President Trump's executive order, my critique of it, Barnett and Wurman's response to their critics, and my rejoinder. Evan Bernick and his coauthors critiqued Barnett and Wurman in the forthcoming Cornell Law Review Online article linked above.

I look forward to Evan's posts!

Free Speech

How the Government Should Deal with Lawyers' Alleged Bad Behavior: Substance and Procedure

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Last week, I posted an excerpt of Paul Clement's arguments as to why the Executive Order targeting the WilmerHale law firm violates the Constitution, and said they struck me as quite correct. (The analysis is similar, I think, with regard to the other Executive Orders targeting law firms.) In response, a reader asked:

With all the hub-bub now around Big Law firms being attacked, it might be nice to see a piece harkening back to the way numerous lawyers and law firms were attacked by the left back when we were representing Trump in 2016 and 2020 and how the profession didn't so much as yawn in our direction about it.

For example, in a WSJ article on March 9, 2025 ("Fear of Trump Has Elite Law Firms in Retreat"), Rep. Jamie Raskin's (D., Md.) was fired up that the Trump administration was singling out law firms that solicited the Steele dossier and which vigorously attacked Trump's own lawyers in 2020. Raskin was a Constitutional law professor before his election to Congress. He was utterly silent when his then Congressional colleague, Bill Pascrell, Jr. (D., NJ.) wrote a letter on November 20, 2020 to the Pennsylvania Disciplinary Board seeking to have [various lawyers] disbarred solely because we represented President Trump in courts across Pennsylvania on mundane election law issues not involving allegations of fraud….

It didn't much seem to matter to anyone back then because we were mostly small firm and solo practitioners under attack. Now that its Big Law getting punched, suddenly everyone's up in arms. Where was the rest of our profession when we were getting hit with both barrels back then?

I think this is an important question; let me offer a tentative and partial answer.

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Free Speech

"The 2024 Presidential Campaign Saw a Massive Disinformation and Misinformation Campaign, …

which likely helped bring the current administration into power."

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I had the pleasure of attending the very interesting conference on Free Speech in Crisis & the Limits of the First Amendment at Yale Law School on Friday and Saturday; I was invited to participate on the Media Environment panel, for which the description was:

It is widely believed that a profoundly broken media system is responsible for bringing the current administration into power, and for critics, the political crisis it has unleashed. Is this correct? And if so, what is to be done about it? How can public opinion be harnessed to serve constitutional purposes in the new media landscape? How can and should the media system be reformed? And what can free speech law do about any of this?

We were all asked to write up to about 2000 words on our topics, and here was my submission.

[* * *]

The 2024 presidential campaign saw a massive disinformation and misinformation campaign, which likely helped bring the current administration into power. Leading media organizations failed to stop it in time. Indeed, some of them were complicit, through inadequate investigation and perhaps even willful blindness, in the misinformation. We thus face an urgent question, raised by the workshop organizers: "How can and should the media system be reformed?"

I'm speaking, of course, of the campaign to conceal President Biden's mental decline—a campaign that was only conclusively exposed by the June 27, 2024 debate. At that point, little time was left for deciding whether the President should be persuaded to step aside; for the actual persuasion; for the selection of a replacement; and for the replacement's attempt to persuade the people to elect her.

Had the Administration leveled with the public earlier, or had the media exposed the concealment earlier, there would likely have been time for a full primary campaign, in which Democratic voters could have made their choice about whom to run against Donald Trump.[1] Perhaps that candidate would have been more effective than Kamala Harris. Or perhaps the candidate would have still been Harris, but a Harris who was seen as having more legitimacy with the public. "Democracy Dies in Darkness," the Washington Post tells us. It appears that the Democratic Party's prospects died in this particular darkness.

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Criminal Justice

Convicting Boeing for Its Deadly Crime Becomes Simple Under the "Judicial Admission" Doctrine

In its deferred prosecution agreement, Boeing stipulated to an agreed statement of facts demonstrating that it is guilty.

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Last week, I blogged about how Boeing had confessed to committing a deadly conspiracy crime connected with the two 737 MAX crashes and should now plead guilty to the charge pending against it. In that earlier post, I argued that Boeing's concessions in a statement of facts (connected with an earlier deferred prosecution agreement) constituted a "confession" that would greatly simplify the Government's task at trial. An alert reader has passed along an interesting argument that I failed to consider … which further strengthens my position.

Under the "judicial admission" doctrine, some issues can be withdrawn from consideration in a case. As the Tenth Circuit recently summarized (United States v. Gallegos, 111 F.4th 1068, 1076 (10th Cir. 2024)), a judicial admission is an "express waiver made … by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact." Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013) (quoting 9 J. Wigmore, Evidence § 2588 (J. Chadbourn rev. 1981)). Such admissions "include 'formal concessions in the pleadings' and 'are not evidence at all but rather have the effect of withdrawing a fact from contention.'" Wells Fargo Bank, N.A. v. Mesh Suture, Inc., 31 F.4th 1300, 1313 (10th Cir. 2022) (quoting Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995)). "Judicial admissions are not just any statements made before the court," but rather "formal, deliberate declarations which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute." United States v. E.F., 920 F.3d 682, 688 (10th Cir. 2019) (quoting U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 833 n.4 (10th Cir. 2005)).

Did Boeing's agreements in its deferred prosecution agreement (DPA) constitute "judicial admissions"?  It seems to me that they did. In its DPA, Boeing formally agreed that all 54 paragraphs in the statement of facts accompanying the DPA were true:

The Company admits, accepts, and acknowledges that it is responsible under United
States law for the acts of its officers, directors, employees, and agents as charged in the Information, and as set forth in the Statement of Facts, and that the allegations described in the Information and the facts described in the Statement of Facts are true and accurate. The Company agrees that, effective as of the date it signs this Agreement, in any prosecution that is deferred by this Agreement, it will not dispute the Statement of Facts set forth in this Agreement, and, in any such prosecution, the Statement of Facts shall be admissible as: (a) substantive evidence offered by the government in its case-in-chief and rebuttal case; (b) impeachment evidence offered by the government on cross-examination; and (c) evidence at any sentencing hearing or other hearing. In addition, in connection therewith, the Company agrees not to assert any claim under the United States Constitution, Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal Procedure, Section 1B1.1(a) of the United States Sentencing Guidelines ("USSG" or "Sentencing Guidelines"), or any other federal rule that the Statement of Facts should be suppressed or is otherwise inadmissible as evidence in any form.

This specific agreement by Boeing (through its CEO and legal counsel) that the allegations against it were "true and accurate" and that Boeing would "not dispute" any facts in any prosecution deferred by the agreement seems to place this case squarely within the "judicial admission" doctrine. And, thus, prosecuting Boeing for its deadly conspiracy crime connected with the 737 MAX crashes is even more of a slam dunk than I suggested earlier.

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