The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
White Lion Reverses Fifth Circuit Again By Narrowly Reading Record And Question Presented
It is very easy to reverse a court when you exclude virtually every argument from consideration.
Yesterday, I expressed frustration how the Court narrowly construed, and indeed reimagined, the record in Bondi v. VanDerStock. Worse still, the Court applied Salerno to reject a facial challenge to a regulation. This move amply rehabilitates Chevron. And why did the Court do this? In my jaundiced view, the Justices were looking for a narrow way to reverse the Fifth Circuit.
Another day, another reversal of the Fifth Circuit. This time, the Court unanimously reversed the en banc Fifth Circuit in FDA v. Wages and White Lion Investments, LLC. Justice Alito's majority opinion is striking in how narrowly it reads the record and the question presented.
For example, Justice Alito's opinion states:
In a footnote, the en banc majority also suggested thatthe FDA had violated a provision of the TCA's notice-and-comment requirements, see 21 U. S. C. §§387g(c)–(d), by imposing a "de facto ban on flavored e-cigarettes" through mass adjudicatory denials, 90 F. 4th, at 384, n. 5.
Suggested? Here is the footnote from Judge Oldham's en banc majority opinion:
FDA's categorical ban has other statutory problems. For example, the TCA states that FDA must follow notice-and-comment procedures before adopting a "tobacco product standard." See 21 U.S.C. § 387g(c)–(d). And Congress specifically called a ban on tobacco flavors a "tobacco product standard." See id. § 387g(a)(1)(A) (referring to tobacco flavors, "including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke"); see also id. § 387g(a)(2) (cross-referencing noticeand- comment obligation to revise flavor standards). FDA unquestionably failed to follow § 387g's notice-and-comment obligations before imposing its de facto ban on flavored ecigarettes.
This is not a suggestion. It seems like a definitive statement of illegality. Is there really some new rule now that an issue not properly preserved unless it is raised in the body of an opinion? Or is this only a rule for circuits abutting the Gulf of America? It does seem different rules apply to the Fifth Circuit.
Justice Alito further argues that the notice-and-comment issue is only "touched on" in the Respondents' brief:
The question we agreed to decide is whether the FDA acted arbitrarily and capriciously in denying respondents' applications for premarket approval of their tobacco products. See Pet. for Cert. I. But before tackling that question, we briefly address as a preliminary matter an argument that is touched on in respondents' brief: namely, that either the APA or the TCA required the FDA to use notice-and-comment rulemaking to set out the requirements that must be met in a premarket tobacco product application.
There is an entire free-standing section in the Table of Contents, and two full pages of the brief (pp. 47-49), focusing on the notice-and-comment issue. What the heck does it take to squarely raise an issue?
Looking for Plaintiffs to Challenge Trump's IEEPA Tariffs in Court
The Liberty Justice Center and I are looking for appropriate plaintiffs to bring this type of case. LJC (a prominent public interest law firm) can represent them pro bono.
I have previously written about how Trump's abusive use of the International Emergency Economic Powers Act of 1977 (IEEPA) to start a massive trade war can be challenged under the major questions and nondelegation doctrines. See also this analysis by Georgetown law Prof. Jennifer Hillman.
The Liberty Justice Center, a prominent public interest law firm with extensive experience litigating economic liberties issues, is looking for an appropriate plaintiff (or group of plaintiffs) to file this kind of case. They can provide representation pro bono, for the right type of client. LJC has litigated and won many important cases related to economic freedom, most notably Janus v. AFSCME (2018), a major Supreme Court decision vindicating the rights of public employees to be free of mandatory union dues. I myself will assist LJC, as may be needed - also on a pro bono basis.
LJC Senior Counsel Jeffrey Schwab has authorized me to post this description of the types of plaintiffs they are looking for:
I think the ideal client would be a privately-held company affected by the tariffs that imports materials directly from one of the countries subject to the tariffs imposed by Trump under the IEEPA. The company doesn't have be considered a small business, but since I suspect many small businesses will be disproportionately harmed by the tariffs, that may be an ideal plaintiff. We may also be able to represent a business that imports goods through a third party like a wholesaler. But a business that directly imports goods would be ideal because it would make it easier to get standing. We would also not be opposed to representing more than one plaintiff, but I think the max would be 4 or 5.
Trump has imposed IEEPA tariffs on Canada and Mexico, and tariffs on many more countries are likely imminent. If you are a business owner or representative of one who fits the description above and wishes to pursue this issue, please contact Jeffrey Schwab, or myself.
Pardoning Corporations (Apropos President Trump's Pardon of BitMEX)
The Hill (Kimberly Wehle) reported yesterday:
On Friday, Trump issued full and unconditional pardons to four individuals and a related cryptocurrency exchange, BitMEX.
BitMEX solicits and takes orders for trades in derivatives tied to the value of cryptocurrencies, including Bitcoin. Last summer, BitMEX entered a guilty plea in a Manhattan federal court for violating the Bank Secrecy Act for having operated without a legitimate anti-money laundering program. Prior to August 2020, customers could register to trade with BitMEX anonymously, providing only verified email addresses.
As it happens, there's a forthcoming Comment by Brandon Stras in the University of Chicago Law Review on "Pardoning Corporations." The Abstract:
Though the Pardon Clause could be interpreted to include or exclude corporate offenses, overlooked history suggests the broader interpretation is the more plausible one. The Clause codified a power that had existed for centuries in England. And corporations were often pardoned at common law—including the Massachusetts Bay Company. This tradition lasted for hundreds of years, and it is the backdrop against which the Framers drafted the Pardon Clause. Even following the Founding, people continued to understand that the pardon power stretched to corporations. Since that time, however, institutional memory has faded.
The President could condition forgiveness on corporate compliance programs or on donations to his political campaign. He could offer pardons to foreign companies to sweeten relations with other countries. He could effectively abolish corporate criminal liability during his terms, at least at the federal level, even for prosecutions initiated by independent agencies. He could pardon his own companies to protect them from prosecution. Or he might even pardon companies that bribed him. Given the sweeping pardon power in Article II, all these decisions fall within the President's discretion. He does not even need to wait for a company to apply.
Some of these consequences are startling, but Congress can limit the pardon power's effects in two ways. First, Congress can refuse to appropriate refunds of pardoned fines. At the time of writing, Congress has not appropriated such refunds for individuals or companies. That decision denies people reprieve from the most common, and often most consequential, punishments imposed on companies. Second, Congress can repeal statutes that impose corporate criminal liability and replace them with unpardonable civil infractions, depriving the President of offenses to pardon.
Important New Professional-Client Speech Decision from the Third Circuit
From Veterans Guardian VA Claim Consulting LLC v. Platkin, decided yesterday by Judge Stephanos Bibas, joined by Judges Anthony Scirica and Cheryl Krause:
The marketplace of ideas is not just a metaphor. Many Americans, from journalists to playwrights to therapists, speak for a living. Laws that bar these professionals from earning money on that speech limit their ability to speak and so must survive First Amendment scrutiny. New Jersey recently passed one such law, banning charging for some advice on how to claim veterans benefits. Because this law likely burdens speech, yet the District Court thought otherwise and so denied a preliminary injunction, we will vacate and remand….
The majority opinion began by concluding that professional speech, including paid speech, is likely presumptively protected by the First Amendment:
Professional services delivered by speaking or writing are speech. Veterans Guardian … advises clients about how to claim benefits: what disabilities to claim, what evidence to include, and how to fill out forms. That advice is likely speech. See Upsolve, Inc. v. James (S.D.N.Y. 2022) (distinguishing conduct of filing motions from speech of offering legal advice)….
[And] laws that ban charging for speech burden the right to speak. Supreme Court cases establish this. See United States v. Nat'l Treasury Emps. Union (1995); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991). Common sense agrees. Someone who cannot earn money from speaking has less incentive to speak and so will speak less. Indeed, many canonical examples of protected speech involve professionals speaking for pay: think of novelists, speechwriters, and newspaper columnists….
More importantly (because the matter is less well-settled), the panel concluded that "there is no separate category of professional speech":
AFA Statement on Speech Rights of Foreign Nationals
After several high-profile examples of university students having their authorization to study in the United States revoked and of international scholars being turned away at the border, the Academic Freedom Alliance has released a statement on the deportation of foreign scholars and students. There are clearly circumstances in which foreign nationals can and should be expelled from the country, but the administration's actions have had the effect of dampening lawful but politically disfavored speech on American college campuses and pose a serious threat to the international academic community.
Foreign students and scholars who enter in the United States, temporarily or indefinitely, do so on a conditional basis, and if they violate the conditions of their lawful presence in the country they can properly be removed. It is imperative that the permission of foreign students and scholars to enter or remain in the country be revoked only for the proper reasons, which do not include the mere expression of controversial scholarly, political, or social views. If foreign scholars and students are going to be able to live and work in the United States, to express themselves freely in public and to engage in the ordinary activities of scholarship and teaching, they must be confident that their status will not be put at risk by their engaging, alongside other members of the academic community, in the lawful expression of ideas that those with political power happen to find controversial.
We call on American government officials to clearly state that international students and scholars will not be removed from the country simply for engaging in lawful expressive activities, whether personal or professional. We call upon American government officials to clearly state the factual basis and legal rationale when visas are revoked. A climate of uncertainty is itself a threat to the free exchange of ideas on American university campuses. It is imperative that the government not only refrain from removing individuals from the country for exercising First Amendment liberties but also credibly reassure the scholarly community that the immigration laws will not be used to stifle First Amendment protected speech.
Harlan Virtual Supreme Court Round of Four
Ten teams of high school students presented oral arguments on Free Speech Coalition v. Paxton.
The topic for the 13th Annual Harlan InstituteVirtual Supreme Court competition is Free Speech Coalition v. Paxton. Yesterday, the top four teams presented oral arguments. The Championship Round will be held at the Georgetown Supreme Court Institute on May 1, 2025 between Teams #20601 and 20094.
Round of 4 Match #1
Round of 4 Match #2
Drama and Misgendering at the Imperial Court
From Rozanski v. Rocky Mountain Court System, Inc., decided Feb. 16, 2023 by the Colorado Court of Appeals (Judge Craig Welling, joined by Judges David Furman and Rebecca Freyre) but just recently posted on Westlaw:
The ICRME {Imperial Court of the Rocky Mountain Empire} is a nonprofit organization that serves Colorado's lesbian, gay, bisexual, transgender, queer, plus (LGBTQ+) community. Among other things, the ICRME holds functions and raises funds for related charities. The ICRME is a chapter of the International Court System (ICS) and the International Court Council (ICC).
Each year, members of the ICRME elect a leader for the organization's fundraising endeavors, which include charitable drag shows. The person so elected receives the honorary title of "Emperor" or "Empress." The events surrounding the 2018 election led to this dispute.
Haskett, Brendlinger, Whitley, and Menchaca were on the ICRME's eleven-member Board of Directors (the Board). Norrie Reynolds was a long-time member of the ICRME and a previous Empress. Reynolds and Rozanski were close friends.
Rozanski founded and owns a large retailer and distributor of comic books. {Rozanski uses "they," "them," and "their" pronouns.} As part of their business, they distribute a newsletter to over 120,000 people worldwide. They also distribute a national newsletter to over 10,000 people in the United States. They have profiles on websites such as IMDb and Wikipedia. Rozanski was also an ICRME member. They sometimes participated in ICRME drag shows using the alter ego "Bettie Pages."
On March 22, 2018, two days before the annual election, Reynolds—who is not a party to this appeal—told Whitley that Rozanski was organizing an "anti-gay rally." According to Reynolds, Rozanski's rally would occur during the election at the Capitol Hill United Neighborhoods facility in Denver, which was the polling location for the election. Whitley immediately relayed this information to the rest of the Board in an email. Haskett subsequently called Reynolds, who confirmed what she had reported to Whitley. Reynolds also told Haskett that "she was afraid"; that she was "feeling unsafe for herself and ICRME"; and that Rozanski "had a temper" and "was out to get" Whitley, Menchaca, and Haskett.
School Contractor Allegedly Fired for Complaining About Drag Show for Students in Grades 7-12
A federal court has allowed the contractor's claim to go forward, denying defendants' motion to dismiss (though of course the facts remain to be ascertained at trial or summary judgment).
From Monday's decision by Judge Edmond Chang (N.D. Ill.) in Lopez v. Fasana:
[According to the Complaint,] April Lopez worked at Disney II Magnet High School as a chief engineer from October 2021 through April 2023. Although the school takes the name "High School," the school teaches students from Grade 7 through 12. She was not a direct employee of the Chicago Public Schools system; instead, she worked for Eco-Alpha, a subcontractor of Jones Lang LaSalle (the giant real-estate services company).
During the early morning of April 28, 2023, before students arrived at school, Lopez saw a poster for a drag show for students posted in a hallway. She said to one of her colleagues, "I cannot get on board with that." Vice Principal Matt Fasana overheard the comment and "expressed anger at her point of view." Then, later that morning, Lopez approached Fasana and directly "expressed her concern over having a drag show at a school with children as young as 12."
That conversation allegedly triggered a series of reports up the command chain—all on the same day, April 28—eventually leading to Eco-Alpha terminating Lopez's employment….
Lopez sued the school officials, and the court allowed the case to go forward:
Today in Supreme Court History: April 2, 1980
4/2/1980: Justice Stanley Forman Reed dies.
Lawsuit Over UC Berkeley's Alleged Toleration of Anti-Semitism …
can go forward in part, a federal trial judge concludes.
From yesterday's decision by Judge James Donato in Louis D. Brandeis Center, Inc. v. Regents of the Univ. of Cal.:
The FAC [First Amended Complaint] alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors. [See below for more details. -EV] The FAC says that these events were perpetrated by students who professed to oppose Zionism, but actually intended to discriminate against Jewish students and professors because they are Jewish. The FAC also alleges that Berkeley failed or refused to enforce its anti-discrimination policies as to its Jewish students and faculty in response to these events.
Taken as a whole, the FAC plausibly alleges disparate treatment with discriminatory intent and policy enforcement that is "not generally applicable." The FAC also plausibly alleges that Berkeley was deliberately indifferent to the on-campus harassment and hostile environment. Consequently, Brandeis's claims under 42 U.S.C. § 1983 for violations of the Equal Protection and Free Exercise Clauses of the U.S. Constitution will go forward, as will the Title VI claim.
It bears mention that the FAC repeatedly alleges that "Zionism is a central tenet of the Jewish faith." This raises concerns about whether Brandeis intends to call upon the Court to determine the articles of faith of Judaism. If so, a serious constitutional problem would arise. The Establishment Clause properly forbids the federal courts from saying what the tenets of a religion are. See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020) ("The First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of … faith and doctrine.'"). This proscription is particularly forceful when, as here, there is genuine disagreement on the matter.
Because the FAC as a whole plausibly alleges that Jewish students and professors were disparately treated because they are Jewish, the Court need not get into the issue now. The "Establishment Clause will be no worse for not having been so tested." It may be that the Court may properly determine whether Zionism is a sincerely held religious belief for some individuals, as circumstances might warrant, but the Court will not determine if it is a central tenet of Judaism.
"The Originalist Case Against Overturning Humphrey's Executor," by Lorianne Updike Schulzke
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.
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.
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 here, here, here, 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.
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.
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.
Dear Harvard: You Have $50 Billion in the Bank - Use It Now
Isn't one of the reasons you have built up an endowment that it will allow you to protect your integrity as an institution of higher learning from political assault?
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.
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.
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?
Being an "Immigrant Professional" Doesn't Cut in Favor of Pseudonymity
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[.]"
Today in Supreme Court History: April 1, 2003
4/1/2003: Grutter v. Bollinger and Gratz v. Bollinger argued.
