The book by political scientist Michael Dichio argues that the Court has done more to promote centralization than protect states, and is the most thorough analysis to date, of this longstanding issue..
Publius: The Journal of Federalism recently published my review of political scientist Michael Dichio's important new book The US Supreme Court and the Centralization of Federal Authority. Although I have some disagreements (detailed in my review), this is an impressive work, and I highly recommend it to anyone interested in the subject. My review is available for free on SSRN. Here's the abstract:
Does the U.S. Supreme Court protect the states from the expansion of federal authority? In this important new book, political scientist Michael Dichio argues that the answer is "no." To the contrary, he contends that, throughout American history, "the Court …. has persistently acted as an important instrument of the broader central state, expanding federal authority over society." The theory that the Supreme Court expands federal power at the expense of the states is not a new idea, having been first raised by anti-Federalist critics of the Constitution over 200 years ago. But Dichio provides the most thorough and wide-ranging defense of it to date, drawing on an extensive database of notable Supreme Court decisions from 1789 through 1997. Among other things, he shows that the Court constrained the states in important ways even in historical periods that are often thought of as high points for "states' rights," such as the Jacksonian era and the late nineteenth century.
Dichio's analysis is, in many ways, compelling, and is a major contribution to the literature on federalism and judicial review. But some of his methodological choices overstate the centralizing tendencies of the Supreme Court. He also unduly downplays some key ways in which the Court promotes decentralization of power. While the Supreme Court has never been a consistent ally of state governments seeking to limit federal authority, it is also not quite as consistent a centralizing force as Dichio suggests.
The final published version is available here, albeit behind a gate (the final version differs very little from the SSRN version, except in format and pagination).
I previously wrote about this issue in a 2017 book chapter, published in Nicholas Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists?, (University of Toronto Press). My conclusions are similar to Dichio's on several key points. But Dichio covers a wider range of cases and historical periods than I did. There is some disagreement on such questions as how to assess federal judicial decisions that protect individual rights against state and local governments, and also whether it is appropriate to classify decisions where the Supreme Court upholds federal laws against constitutional challenges as cases where the Court promoted expansion of federal power (as opposed to merely refused to try to limit it). In my view, discussed in both the 2017 chapter and in my review of Dichio's book, many judicial decisions protecting individual rights against state and local authorities have a significant decentralizing aspect, because they empower individuals and civil society.
The debate over the relationship between federalism and judicial review will no doubt continue. But Dichio's book does much to increase our knowledge of this crucial subject.
It is perhaps worth noting that the book is endorsed by Volokh Conspiracy co-blogger Keith Whittington, who writes that "Dichio takes a fairly unique approach to thinking about the relationship between the US Supreme Court and the development of the American state. Scholars interested in American political development and historical work on the law and the courts should grapple with the evidence on offer here."You can't go wrong with a book backed by two different VC bloggers!
From yesterday's dissenting opinion by Ninth Circuit Judge N.R. Smith in U.S. v. Begay:
MURDER in the second-degree is NOT a crime of violence??? Yet attempted first-degree murder, battery, assault, exhibiting a firearm, criminal threats (even attempted criminal threats), and mailing threatening communications are crimes of violence. How can this be? "I feel like I am taking crazy pills" [quoting Zoolander].
The underlying legal question—what qualifies as a "crime of violence" for purposes of the federal statute banning discharging a firearm during a "crime of violence"—is complicated (needlessly so, some say), because of the Supreme Court precedent on the subject; if you're interested, read the majority and dissenting opinions. Here I just wanted to pass along the dissent, which James Klugman (who alerted me to the opinion) speculates might be the first occurrence of "???" in a circuit court opinion. Regrettably, Westlaw and Lexis can't search for punctuation like that, so I can't confirm or deny that speculation ….
CNN (Susan Scutti) reports, "6 teens tried to rob a house, police say. After the homeowner shot and killed 1, the others were charged with murder." According to prosecutors,
[O]n Tuesday at 1:15 am, the six teens awakened a 75-year-old resident of Lake County. The resident saw the headlights of the stolen Lexus they were driving in the area of his driveway. Grabbing his firearm, he left the house and went to the outside of his property …. Facing "multiple strangers," he ordered them off his property, but they "continued to advance on him[.]"
One stranger had something in his hand, the resident later explained, and believing himself in danger, the resident fired his gun several times, striking one of the defendants with a single bullet, the prosecutor said…. "When Lake County authorities responded to the scene of the shooting, they located the offenders' hunting knife on the driveway[.]"
But while prosecutors are still deciding whether the shooting was justified, they are charging the remaining teens with murder of their confederate. How is that possible?
It's complicated, and the rules differ from state to state; but Illinois does indeed allow such prosecutions.
The basic legal principle is this: Many state murder laws provide that someone is guilty of so-called "felony murder" "when, in the commission of a felony, he causes the death of another human being."
And "causes" is a capacious term. Obviously, shooting someone so that he immediately dies counts as causing death. But so could, for instance (to quote a Georgia Supreme Court decision), "smash[ing] the victim's skull with a hatchet" even though "the victim die[s] nine months later from infection and gangrenous lung abscess." So could "throwing the drunken victim off a bridge into a river" if this causes the victim to drown. The criminal is generally guilty of felony murder so long as the "proximate cause" requirement is satisfied, which is to say that (1) the death wouldn't have happened but for the defendant's actions, and (2) the death was sufficiently foreseeable.
A. So say that robber Rob and his accomplice Alec are robbing victim Vic, and Vic pulls out a gun and shoots and kills Alec. A jury might be able to find that the death wouldn't have happened but for Rob's actions (since Alec might have been unwilling to commit the crime by himself). And the jury could find that there was a reasonably foreseeable possibility (not certainly or even probability, but just a foreseeable possibility) that Vic would use deadly force to defend himself against Alec. In states that follow the "proximate cause" approach to such scenarios, Rob would then be guilty of murder, because "in the commission of a felony [robbery], he cause[d] the death" of Alec. The same would happen if it is police officer Polly who kills Alec.
A new Pew survey reveals that the partisan split that became visible a couple of years ago in public perceptions of American higher education has continued. In the long term, this cannot be good for American colleges and universities.
A lot of American institutions have taken it on the chin in recent years as Americans have become less trusting of any of them. Some of those declines reflect a general eroding of public confidence, but some institutions tend to see a specifically partisan split with supporters of one political party continuing to like that institution as supporters of the other party express dislike. This is not terribly surprising for political institutions like the presidency, which tend to be seen through a partisan lens depending on who currently occupies the White House (though notably this stark partisanship about the presidency is itself a relatively recent development).
Colleges and universities are fairly distinctive in being non-political institutions that are nonetheless seen in increasingly partisan terms. There is an extensive conservative infrastructure now dedicated to publicizing the foibles of academia. Of course, the reality is that college professors and administrators lean heavily to the political left, though this has been true for decades. Republicans now perceive universities as politicized, partisan institutions.
Republicans continue to send their own kids to college. They continue to recognize the personal economic value of a college degree. But if Republicans continue to believe that on the whole universities are damaging American society, they are unlikely to try to defend them against misguided political interventions from the political left and are more likely to propose misguided political interventions of their own. There is probably a limit as to what universities themselves can do to improve the situation, but they would be wise to take a serious look in the mirror and consider how they could win back the confidence of conservative Americans.
A. In 2017, Bonner lost a case in New Jersey state appellate court, Bonner v. Cumberland Reg'l High Sch. Dist. Justia.com, a site that (among other things) publishes online copies of state and federal court opinions, included that nonprecedential New Jersey decision; Bonner then sued in federal court, asking the federal court to order Justia to remove the opinion. Yesterday federal District Judge Peter G. Sheridan granted Justia's motion to dismiss (Bonner v. Justia, Inc., 2019 WL 3892858):
Plaintiff seems to believe the New Jersey [appellate] opinion is his personal property…. Plaintiff seeks to prevent the [opinion] from being "reported, copied, distributed, shared, or by any other means used by anyone or any website." "[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." …
Plaintiff is proceeding pro se, and the Court should read Plaintiff's complaint [here, amended] generously and hold it "to less stringent standards than formal pleadings drafted by lawyers." … [But t]he amended complaint is substantively meritless, as was the original complaint.
Plaintiff is essentially attempting to seal the Appellate Division's Opinion, which—like federal court documents—[is] open to the public. There is a heightened public interest in disclosure of materials that are filed within the Courts, which outweighs private interests in confidentiality, as the Courts are funded by the public and in general judicial proceedings are not done in secret….
Because Plaintiff has had two opportunities to set forth a cause of action, and failed to do so, to allow another amendment to the complaint would be futile. As such, there appears to be no cause of action for the conduct the amended complaint is dismissed with prejudice.
This is clearly the right result, but, to my shock, I've seen one case in which a trial court did order a different online repository (leagle.com) to remove a person's name from a published court opinion archived at that repository (more on that in a later post). And, as I've noted before, I've seen cases in which trial courts wrongly ordered Google to deindex a photo in a newspaper (Malandrucco), or wrongly ordered media outlets to remove stories (Thorworthand Barone).
Trial courts sometimes do the darndest things, including in cases brought by pro se plaintiffs. While litigating pro se is often a handicap, it's sometimes an advantage: pro se litigants often don't know what's impossible, so they ask for it—and sometimes get it. But not this time.
B. Bonner also asked—beyond his request that the New Jersey state court opinion be removed—that any order issued by the federal court resolving Justia's motion to dismiss Bonner's complaint "not 'be reported, copied, distributed shared, or by any other means used by anyone or any website.'" (Bonner's request also stated, "Confidential Notice: This letter and the things contained herein are confidential information and are not to be copied, shared, or distributed by any source"; but motions are generally public documents, just as opinions are.)
I had been tracking the case on Bloomberg Law, because I have been writing about attempts to get court opinions hidden. I thus noticed that request to seal, and filed a motion to intervene and oppose the request. The federal court granted my motion to intervene, and denied Bonner's request to issue the order under seal. Again, that strikes me as clearly right.
There is more to this litigation, but I will save that for one or two upcoming posts.
In Thompson v. Caldwell (S.D.N.Y.), filed Saturday, Courtney Thompson is claiming that Stunna's (Khalick Antonio Caldwell's) and Billion Dollar Baby Entertainment's employees—Michael Awute and an unknown John Doe—beat up Thompson at Flight Club, a Manhattan sneaker store. Thompson is claiming he was hit in the face and kicked in the head, and is suing for at least $400,000 plus punitive damages.
Now if I beat you up in a sneaker store (not that I would!), you couldn't get a recovery against UCLA (or against my dean), unless I was somehow on the job. So what is the plaintiff's theory?
19. Defendant Billion Dollar Baby Entertainment, LLC is a music company that promotes itself as violent and murderous group.
20. Both the principals and agents of Defendant Billion Dollar Baby Entertainment, LLC, including Defendant Caldwell, frequently encourage violence by their employees and agents, through their music and actions.
21. The principals and agents of Defendant Billion Dollar Baby Entertainment, LLC, including Defendant Caldwell, regularly boast publicly about paying others to commit acts of violence on their behalf.
22. At all relevant times, Defendants Awute and Doe were acting as employees and agents of Defendants Caldwell and Billion Dollar Baby Entertainment, LLC. Their acts of violence toward Plaintiff were instigated, condoned, and/or authorized by Defendants Caldwell and Billion Dollar Baby Entertainment, LLC.
Time will tell whether this claim is going anywhere (and I should stress that I can't speak to the factual allegations, which are just part of the plaintiff's Complaint, not of any court finding). But I'm skeptical, unless there are some specific facts—beyond just loose claims of "encourag[ing] violence" or even of public boasts with regard to violence by others—that show that Awute and Doe did indeed attack Caldwell as a part of their jobs.
Rachel Maddow launched a disgusting smear of my Scalia Law School colleague (on leave) and Second Circuit nominee Steve Menashi. Ed Whelan has the details:
In a 2010 law-review article titled "Ethnonationalism and Liberal Democracy," Second Circuit nominee Steven Menashi argues that "ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law."
Menashi's specific purpose in the article is to refute claims that "Israel's particularistic identity—its desire to serve as a homeland for the Jewish people—contradicts principles of universalism and equality upon which liberal democracy supposedly rests." In fact, argues Menashi, "[p]articularistic nationalism and liberal democracy … emerged together at the same historical moment and persisted in symbiosis." Further, the "idea that a sovereign democratic government represents a particular ethnonational community has its root in the principle of 'self-determination of peoples' espoused at the foundation of the League of Nations and the United Nations." Surveying the laws of European nations, he further explains that Israel's Law of Return, which guarantees citizenship to Jews worldwide, is similar to kin-repatriation policies that are widespread throughout Europe. In sum, "[f]ar from being unique, the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states."
In a lengthy segment on MSNBC last night, Rachel Maddow grossly distorts Menashi's argument and tries to twist it into "a high-brow argument for racial purity." (Video at 9:00-9:36.) She falsely claims that Menashi argues "how definitely democracy can't work unless the country is defined by a unifyingrace." (Video at 6:57-7:10.)
But Menashi's argument about national identity is clearly not about "racial purity" or a "unifying race." Indeed, the fact that Israelis from Ethiopia are black makes it impossible to take seriously the claim that Menashi is making a case for "racial purity." Menashi further states that it "is not even clear … that Israel's national identity can even be described as 'ethnic'" (in a narrow sense ofthat concept), as Israeli Jews come from "Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen."
OK, it's a smear. But why racist? Well, Maddow and her fellow-travelers are inclined to call any criticism of Rashdia Tlaib they deem unfair "racist" because Tlaib is a "woman of color" based on her parents' Middle Eastern origin. Steve's parents were victims of state antisemitism, his paternal grandparents like my wife's family refugees from Iraq, where his family had likely lived for 2,500 years (and how dare he think that there might be good reason for a nation-state for Jews to ensure they don't suffer the fate of his family in the future?) So by the logic that Maddow herself has adopted, Steve is a "person of color" and her smear "racist." But it's a despicable smear regardless.
UPDATE: An earlier version of this post suggested that both of Steve's parents were of Iraqi origin. His mom's family were rather refugees from the USSR. Regrets for the error.
FURTHER UPDATE: I have a busy schedule today, but found a few free moments to add this: Menashi's argument is a counter to those who argue that nationalism is inherently illiberal. He argues that multi-ethnic societies without a sense of shared national identity are prone to inter-ethnic conflict and a lack of social trust. The way to overcome this, he argues, is with liberal nationalism. This form of government will not just ensure everyone legal rights, but will provide a sense of national identity that will allow people to recognize that while their fellow citizens may be "different", they are part of the same national project/polity and thus can overcome those differences for the broader national good.
Is this right? It's highly debatable whether liberal nationalism "works" in this way. But there is nothing the least bit racist about arguing that nationalism, rather than being seen as inherently illiberal, can further liberal goals by creating a sense of national solidarity that would overcome particularist (racist, ethnocentric, chauvinistic) instincts.
I should also reiterate that this was published in 2010, well before the current Trump related controversies over nationalism, and given the date, was not an related to the recent rise of Bannon-style conservatism, but was rather an explanation why Israeli nationalism doesn't render it illiberal.
That's so regardless of whether the statement is seen as a true threat or incitement—and it applies to any "harmful" speech "inten[ded] to retaliate" against anyone giving law enforcement "any truthful information" related to a federal crime.
Title 18 U.S.C. § 1513(e) of the witness retaliation statute provides,
"Whoever knowingly,
"with the intent to retaliate,
"takes any action harmful to any person, including interference with the lawful employment or livelihood of any person,
"for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense,
"shall be fined under this title or imprisoned not more than 10 years, or both."
This doesn't require any proof that the speech was a constitutionally unprotected "true threat" of violence or vandalism, or unprotected speech intended to and likely to incite imminent criminal conduct. It's enough if sharp criticism is intended to retaliate (i.e., is motivated by testimony or a report to the government), and if it "harms" people in a broad sense, including by making people not want to do business with them. Publicly condemning a local businessman for calling the police about someone's being an illegal alien—or for reporting on a person's technical violation of a federal gun law—could thus be a felony, if one intends that people shun him as a result.
And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way:
Joy Edwards made numerous derogatory posts on Facebook about a confidential informant who testified against her brothers during their criminal trial. The Facebook posts revealed the informant's identity and called him—among other things—a "snitch." Edwards was indicted on a single count of retaliating against a witness in violation of 18 U.S.C § 1513(e). At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant. Edwards was convicted and sentenced to short terms of prison and lesser forms of confinement….
In 2015, D.B. agreed to work with law enforcement as a confidential informant against two brothers in the town of Steubenville, Ohio. These two brothers, Fred and David McShan, were suspected of running a drug-trafficking operation. D.B. wore audio and video surveillance equipment while performing controlled buys from the McShan brothers. As a result of D.B.'s assistance, law enforcement indicted the McShan brothers on multiple charges, including conspiracy to possess with intent to distribute heroin. D.B. also testified at the McShan brothers' trial.
The trial took place in Columbus, Ohio, 150 miles from Steubenville. D.B. testified in an open, public courtroom. A number of Steubenville residents attended the trial. During the trial, United States Marshals had to remove several of the McShan brothers' relatives and friends from the courtroom for recording witness testimony and taking pictures of witnesses, including D.B., on the stand. A jury found both brothers guilty and the district court sentenced Fred to 288 months in prison and David to 74 months in prison.
Several months after the trial, Steubenville residents began posting on the social-media website Facebook pictures of D.B. testifying at the trial. Among the people to do so was Joy Edwards, a sister of the McShan brothers. Over the course of several days, some of her online activity included:
Re-posting another user's photo of D.B. on the witness stand and calling him a "snitch" in the comments section
Commenting on her own post saying "f*** him," "Look at that bitch ass snitch lips! They are crack up and ashey white from running it so much! His bitch ass needs some WD40!"
Re-posting another user's doctored photo of D.B. holding a t-shirt with a police badge on it
Re-posting another user's photo of D.B. with the caption "stop snitching" over it, to which Edwards added, "Snitch ass bitch"
Commenting on her own post in response to another user's question about the identity of D.B., saying, "This guy is snitching! He snitched on my brothers! And lied about everything!"
Re-posting another user's photo of D.B. with the caption "Snitching like a bitch"
Re-posting another user's picture featuring hands in police handcuffs with the caption "Man up … Shut your mouth. Take the charge and don't snitch."
"Liked" numerous other users' posts of similar material
The idea has some flaws, but would be a major improvement over the status quo. It also has much in common with a proposal for state-issued visas promoted by two Republican members of Congress in 2017.
South Bend, Indiana Mayor and Democratic presidential candidate Pete Buttigieg recently put forward a proposal for "placed based visas" for immigrant workers, based in large part on a similar idea advanced by economists Adam Ozimek, Keenan Fikri, and John Lettieri (Buttigieg refers to them as "community renewal visas"). Matthew Yglesias of Vox has a helpful summary of the plan, and some of its potential advantages:
Many struggling American communities are, among other things, losing people. Meanwhile, many millions more people would like to move to the United States of America than the country is prepared to allow in.
Three economists have called for leveraging the latter into a solution for the former, allowing both communities and immigrants to opt into a special program that would allow communities experiencing population loss to issue temporary visas to skilled foreigners that would allow them to live and work in places that want more workers.
Part of the tragedy of the situation is that in global terms, Akron is one of the very best places in the whole world to live. Declining Midwestern cities tend to have bad weather, but so do thriving Northeastern ones. And while the city's median household income of $36,000 is on the low side for the United States, it compares favorably to what you'd find in Poland, Hungary, Greece, Croatia, or Chile — to say nothing of India, Bangladesh, or Vietnam.
Lots of people, in other words, might jump at the chance to move to Akron if they were given the opportunity. And we know from the lottery for H1-B visas that American companies would like to import many more foreign-born workers with technical skills than they are currently allowed to hire.
Instead of giving work permits to skilled workers that tie them to a specific company, as the US does now, a new category of visas would tie them to a specific place.
A certain number of place-based visas would be allocated to a city — Akron, say — that wants to opt into the program. And then foreigners with skills who want to take a chance on Akron can apply for an Akron Visa. If you live in the specified city for a certain period of time — Buttigieg's implementation sets it at three years — you can convert to a regular green card. The lure of the permanent green card, among other things, is supposed to create a strong incentive to comply with the terms of the program.
The theory is that the presence of a pool of skilled workers in a given city would be a lure for companies to start investing there to hire them. This in turn would have a series of related benefits…
A reasonably large share of Akron visa holders would end up moving elsewhere after their initial three-year stint, especially at first. But it's also the case that people have a tendency to stick around a place once they've put some roots down there. And once an immigrant community is established somewhere, its very existence becomes a draw for other people with similar cultural roots.
Place-based visas would be a significant improvement over the current system of H-1B visas that tie immigrant workers to a specific employer. They would enable workers to switch jobs (so long as they stayed in the same locality). That is good for both economic efficiency (enabling workers to go where they are likely to be more productive) and for avoiding mistreatment of workers by employers. In the H-1B system, workers who leave an abusive employer risk deportation. I also agree with many of the other points Yglesias makes in favor of this proposal.
The main shortcoming of the idea is that, by confining eligible workers to a single community, it severely limits their options. That's a flaw from the standpoint of both liberty and efficiency. In some smaller communities, they might even be limited to just one or a small handful of employers (depending on how many local businesses employ workers with their particular skills). Another limitation of Buttigieg's version of the plan is that it would be restricted to "counties that have lost prime-working-age population over the last 10 years, and smaller cities that are struggling to keep pace economically with larger cities." Other communities should also be allowed to participate.
These are the main reason why the plan deserves only two cheers, instead of three. On the other hand, the prospect of getting a green card within 3 years significantly mitigates these problems, as it makes the location restriction temporary and gives employers some incentive to avoid abusive behavior (lest the most productive workers leave as soon as their three year term is up).
The Buttigieg proposal for place-based visas has much in common with a proposal for state-based visas offered by Republican members of Congress Senator Ron Johnson and Rep. Ken Buck in 2017, which I analyzed here. The big advantage of the Johnson-Buck proposal over Buttigieg's is that a state-based visa gives immigrants far more options than one confined to a single city. On the other hand, their plan—unlike Buttigieg's—would not grant a green card after three years. So the locational constraint would continue indefinitely. The Johnson-Buck plan provides for three year visas, which can be extended at the option of the state government in question.
There is, potentially, some conflict between giving immigrants a choice and promoting development of depressed communities, as many would prefer to move to areas with more vibrant economies, if given the option. But immigrants have diverse preferences, and many might well be willing to move to less successful areas, so long as there are jobs available, and the cost of living is relatively low compared to the big cities of the East and West Coast. Even today, a good many immigrants do in fact move to less-affluent parts of the United States, as shown by such examples as the fact that immigrant doctors service many poor rural areas.
Many of the points I made in my assessment of the Johnson-Buck proposal apply to this one, as well:
For the last century or more, immigration policy has been dominated by the federal government. That's an inversion of what most of the Founding Fathers expected. James Madison and Thomas Jefferson, among many others, objected to the Alien Acts of 1798 in large part because the original meaning of the Constitution did not give Congress any general power to restrict immigration, but rather largely left the issue to the states.
We are unlikely to fully restore the original meaning of the Constitution. But [the Johnson-Buck proposal would move us some degree in that direction]….
If the bill passes, the guest workers admitted by the states would be among the biggest beneficiaries. Many thousands would get freedom and economic opportunity, and escape having to languish in poverty and oppression…. But American citizens also stand to gain, because immigrant workers make major contributions to the American economy. By channeling immigrants into legal employment, this program could also diminish deportations, which come at a high cost to taxpayers….
It is worth noting that Jason Kenney, the new United Conservative Party premier of Alberta (Canada's most conservative province) has recently proposed a plan somewhat similar to Buttigieg's in an attempt to attract immigrant workers to rural parts of his province, which currently suffer from declining population.
The above analysis assumes that the Buttigieg plan or the Johnson-Buck proposal would expand the total number of immigrants allowed in the US, without diminishing numbers admitted under other categories. The proposals are in fact currently structured that way. If they are altered to cut immigrant admissions elsewhere, that greatly reduces the good they might do (though it might still be net beneficial if community or state-based visas replace H-1B visas).
My post on the Johnson-Buck plan describes some of the political obstacles it faces, many of which would also apply to the Buttigieg proposal. Those obstacles likely help account for its failure to get much traction in Congress. But the endorsement of similar ideas by prominent liberal Democrats might increase the chance of building a bipartisan coalition over time.
It may well be too much to hope for. But perhaps at some point in the future, we could get a bipartisan proposal that combines the best features of both plans, while mitigating their respective downsides.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
"We're not asking for the Wild West. We're asking for cookies." New Jersey is the only state that completely bans the sale of homemade food, and home bakers are suing over it. Read more about it in The New York Times.
New on the Short Circuit podcast: Three wise men or three stooges? Special guests Michael Kimberly of McDermott Will & Emery and Adam White of the Scalia Law School discuss the Supreme Court's three big admin law decisions from last term. Click here for iTunes.
Allegation: Upset at not getting a full scholarship, female student falsely accuses male Hofstra University tennis coach of sexual harassment. The school declines to interview relevant witnesses, among other procedural irregularities, and fires the coach. Second Circuit: Could be the school favors accusing females over accused males. The coach's suit should not have been dismissed.
In 2013, the feds create a fake university, the University of Northern New Jersey. The sting ends in 2016, having secured 22 arrests related to brokering fraudulent student visas. The feds revoke the visas of some 500 foreign students who "enrolled" at the school. (At oral argument, the feds say the students are innocent victims, but later, "for reasons known only to the Government," change their tune.) Third Circuit: The students' class action against the feds should not have been dismissed.
Allegation: Tired of hearing a prisoner complain about illness, prison physician assistant falsely claims prisoner harassed/stalked her, leading to prisoner's confinement in "The Yellow Room"—a cold room, kept constantly lit, with no bedding or toilet paper, in which prisoners are given only thin "paper like" garments to wear. Cruel and unusual punishment? Third Circuit: Sounds like it; warmth and sleep are among "the minimal civilized measure of life's necessities."
Allegation: Pennsylvania inmate gets jumped by other inmates who break his jaw. What follows is a year of medical misadventure. Were prison officials deliberately indifferent to his suffering? District Court: Doesn't matter because he didn't exhaust his administrative remedies. Third Circuit: Yes, he did; prison officials just didn't respond to him. The case can go forward.
Texas' ban on public corporations owning liquor stores was written by a lobbyist for Texas liquor retailers who wanted to keep competitors out of the state. Does that mean the ban was intended to discriminate against interstate commerce? You might think so, but the Fifth Circuit isn't so sure and asks the district court to take a second look.
Mississippi man is convicted of murder in 2004 based largely on the dubious forensic testimony of Dr. Steven Hayne. Turns out lots of folks, including a justice on the Mississippi Supreme Court, think Dr. Hayne is a charlatan whose pseudoscientific methods have led to multiple false convictions. The man seeks habeas relief six months after the release of a deposition transcript of Dr. Hayne that tends to confirm these views. Fifth Circuit: Sorry, but you're required to file a habeas petition within a year of when a reasonable person would have discovered the facts justifying the petition, and people have been saying Dr. Hayne is a hack since way before that deposition transcript was released. So life in prison it is.
Allegation: Pretrial detainee is cuffed and shackled, but there's no seatbelt in the van taking him to Harris County, Tex. jail. He's thrown out of his seat by the deputy's sudden accelerating, braking, and swerving. He injures his back, he says, when the deputy hits a pothole or speedbump. Fifth Circuit: "This is not evidence of driving in a manner creating a substantial risk of serious harm."
Michigan man is convicted of murder based on the previously recorded testimony of a woman who refused to testify at trial. Shortly after the trial, and repeatedly over the following decade, the witness recants her testimony, claims she was pressured into it by a cop who threatened to have her kids taken away. Also, another eyewitness comes forward claiming she saw the actual killer but did not disclose this earlier because her father, a police officer, told her not to. Enough for a habeas petition? Sixth Circuit: It's certainly enough for the district court to hold an evidentiary hearing, which we now instruct it to do.
Grosse Pointe Farms, Mich. woman's estate sues an array of police officers, alleging the woman was murdered and officers told the murderer they would cover up the crime. Sixth Circuit: The estate has failed to make out a claim under the "state-created danger" doctrine (an offshoot of the Due Process Clause). And, adds Judge Murphy (in an all-judge concurrence), we might want to revisit whether the state-created danger doctrine is even a thing. It seems like the Equal Protection Clause might provide "a more plausible textual hook" for claims police denied someone the equal protection of the laws.
Man sues Memphis, Tenn. seeking injunction to let him protest on a privately owned street abutting Planned Parenthood clinic. And because he is likely to prevail, says Sixth Circuit, a preliminary injunction must issue; the street "looks and functions like a public street," so it is a traditional public forum.
"May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others? No, case law makes clear." So says the Sixth Circuit, affirming a denial of qualified immunity for Shelby County, Tenn. officers who shot and killed a suicidal man who was holding a knife to his own throat.
Allegation: Illinois man wakes up to find the dead, bloody body of his son. Although the man speaks limited English, police interrogate him for hours with an untrained officer shoddily translating into Korean. The man's confusion (and lack of medication for high blood pressure and diabetes) is obvious. Still, based on the interrogation, he's held in pretrial detention for four years until a jury finally acquits him of the murder—which, it turns out, might have been a suicide. The man sues the officers involved. Seventh Circuit: To a jury this must go.
The downside of one of the more nauseating decisions this week? The Seventh Circuit had to explain that "the stench … was compounded as insects became drawn to the standing feces and urine." The upside? No qualified immunity for Lake County, Ill. jail officials who allegedly spent three days depriving pretrial detainees of enough water to drink, bathe, and flush the toilets.
The feds interrogate bank robber imprisoned at Pontiac, Ill. correctional facility. He admits to another robbery and accedes to a DNA swab. Bank robber: At the time of the interrogation, I'd been in solitary confinement for a prolonged period. My confession wasn't voluntary. Seventh Circuit: Conviction and sentence (an additional 18 years) affirmed.
Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that—just kidding! Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?
Pursuant to a 1997 settlement agreement, Border Patrol must ensure "safe and sanitary" conditions for detained minors. Does that mean minors must have access to soap, towels, showers, dry clothing, and toothbrushes even though the agreement doesn't expressly mention them? District court: Yes. Yes, it does. Ninth Circuit: Because the district court is enforcing, rather than modifying, the 1997 agreement, we don't have jurisdiction to reconsider its order.
Boynton Beach, Fla. police beat up motorist (who clipped an officer who was on foot) and two passengers after a high-speed chase. Several officers neglect to mention the beating in their incident reports. But wait! It's all on video. A supervisor instructs them to change their reports, tells the FBI he doesn't remember telling anyone to change their reports. Eleventh Circuit: No need to disturb either the conviction of one of the officers for the beating or the supervisor's conviction for trying to mislead the FBI. But it could be their sentences (six months' probation for both of them) were infected by legal error, so the district court needs to take another look at those.
Minneapolis police obtain warrant, take drug dealer to hospital for anal cavity search. A doc involuntarily sedates the man, uses forceps to remove a baggie of cocaine. Minnesota Court of Appeals (over a dissent): Which was an unreasonable search. Suppress the evidence.
In 2014, Maryland decriminalized possession of less than 10 grams of marijuana, making it a civil offense. So if police come upon a legally parked vehicle, smell "fresh burnt" marijuana, and see a joint in the center console, they do not have probable cause to search the driver, says Maryland's high court. Concurrence: Don't drive stoned.
Maryland appellate court: A sexually invasive search to find drugs on the side of a highway requires exigent circumstances, and police convenience doesn't count. Conviction reversed.
And in other news, the North Carolina Court of Appeals has withdrawn last week's opinion holding that flipping off a cop gives the cop reasonable suspicion that crime is afoot. Will the panel reverse course? Will it leave the holding intact but further explain its reasoning? Stay tuned.
Earlier this year, Nevada legislators passed a bill that eliminates over $2 mil in funding over the next two years for K–12 scholarships for low-income families. (The scholarships are funded by private businesses that receive a tax credit for donations to scholarship organizations, which then disburse funds to needy families to send their children to private schools.) But the Nevada Constitution requires a two-thirds supermajority in each house of the legislature to pass a revenue-raising bill, which the bill is, so this week IJ filed suit on behalf of parents and students who lost their scholarships and won't be attending the schools of their choice this year. "The quality of school available to a child shouldn't be based on their ZIP code or their parents' income," said IJ Senior Attorney Tim Keller. Click here to read more.
The New School has cleared a professor of charges of racial discrimination for quoting literary icon James Baldwin during a classroom discussion. The university reversed course late Wednesday after the Foundation for Individual Rights in Education intervened on behalf of professor academic freedom rights….
Sheck, a poet and novelist who is white, teaches a graduate course on "radical questioning" in writing. The course includes works by prominent African-American writers that examine racial discrimination. Sheck prefaces her course with a warning that active engagement with literature involves a sense of unease and unsettlement.
Early in the spring semester, Sheck assigned "The Creative Process," a 1962 essay in which Baldwin argues that Americans have "modified or suppressed and lied about all the darker forces in our history" and must commit to "a long look backward whence we came and an unflinching assessment of the record." In her graduate seminar, classroom discussion involved the Baldwin statement, "I am not your nigger," which was made during an appearance as a guest on The Dick Cavett Show. Sheck noted how the title of an Oscar-nominated 2016 documentary based on Baldwin's writings, "I Am Not Your Negro," intentionally altered Baldwin's words. She asked her students what this change may reveal about Americans' ability to reckon with what Baldwin identified as "the darker forces of history."
Months later, Sheck was summoned to a mandatory meeting with The New School's director of labor relations due to "student complaints made under the University's discrimination policy." She was not provided with any details about her allegedly discriminatory conduct.
On Aug. 7, FIRE publicly called on The New School to stand by its laudable "legacy of academic freedom, tolerance, and free intellectual exchange" and drop its investigation. FIRE's letter noted that Sheck's use of the Baldwin quote did not violate the university's racial discrimination policy and was clearly protected by her academic freedom rights. Further, The New School's own policiesmake clear it will not punish speech protected by the First Amendment and basic tenets of academic freedom.
I'm glad reason and academic freedom—here, the freedom to choose to talk about historical facts without expurgation and bowdlerization—prevailed, though it's unfortunate that the "investigation" (which left the prospect of possible discipline for "discrimination" hanging over Sheck for 1½ months) even took place.
Israel's decision to bar two US members of Congress from entering the country is part of a much broader problem. Many nations, including the US, have similar policies. Here's why such restrictions should be abolished.
Israel's recent decision to bar US Representatives Ilhan Omar and Rashida Tlaib from entering the country, because of their support for the anti-Israel BDS movement, has attracted widespread controversy. Critics argue that the Israeli decision is both unwise and unjust. The critics are right. But, lost in the much of the discussion, is the fact that entry restrictions based on political speech are far from unusual. Israel's policy is just one example of a much larger problem. If the Israeli action is unusual, it is mainly because of the high profile of Omar and Tlaib, and President Trump's norm-breaking decision to pressure a foreign government to bar entry to two prominent citizens of his own country.
The United States itself has a long history of barring entry to foreigners with views the federal government considers unusually odious, such as communists. Many European nations deny entry to far-right racists, such as the American white nationalist Richard Spencer. Few of those who condemn Israel's decision or the long-time US policy of excluding communists also condemn entry restrictions that bar far-right nationalists—and vice versa.
But the truth is that all these policies do deserve condemnation, and virtually all should be repealed. And we should be willing to oppose them even when the people whose rights are restricted really do have odious views. I am no fan of Omar and Tlaib. The former has made anti-Semitic statements, and the BDS movement both advocate is itself heavily tainted by anti-Semitism, as shown by its use of classic anti-Semitic rhetoric – recently described by members of the German parliament as reminiscent of Nazi propaganda—and its targeting of Israel for sanctions, while ignoring the many nations with far worse human rights records. Communists and white nationalists are even more odious, in so far as many openly advocate policies that predictably lead to mass murder. Nonetheless their freedom of movement should not be restricted based on their views.
Freedom of speech is a fundamental human right. It necessarily includes the right to advocate extreme, awful, and unjust ideas, as well as good and "mainstream" ones. One can argue that travel restrictions do not really undermine freedom of speech because they don't ban the speech itself, but only restrict those who express certain ideas from entering particular areas. But the same defense can be offered for any regulation that does not directly restrict speech, but "merely" bars advocates of certain views from engaging in other activities. A law that forbids critics of President Trump from driving cars or flying on planes is clearly an attack on freedom of speech, even though it does not regulate speech directly. The same goes for speech-based travel restrictions.
Another problem with speech restrictions is that it is extremely difficult to keep them limited. One reason why we need constitutional protections for free speech, is that government cannot be trusted to restrict only the genuinely awful speech, while leaving the rest alone. To the contrary, censors have strong incentives to target critics of the government more generally and also any expression that is widely unpopular, regardless of its true merits.
This danger applies to speech-based restrictions on international travel as well as to more conventional "internal" censorship. In the US, nineteenth and early twentieth century efforts to bar immigrants based on views that were supposedly inimical to American republican institutions were closely linked to racial, ethnic, and religious bigotry against Asian, Catholic, Eastern European, and Jewish immigrants. In the 1930s, concerns about their possible radical left-wing political views were one of the reasons cited for barring Jewish refugees from Nazi Germany.
Just last year, in the travel ban case, the US Supreme Court cited earlier decisions upholding laws barring entry to foreign communists as in order to uphold Donald Trump's policy of barring entry to citizens of several Muslim-majority nations—a policy clearly motivated by religious bigotry. For reasons explained in an amicus brief I coauthored in the travel ban case, I believe the earlier precedents were distinguishable, and did not actually require a decision in favor of the travel ban. But it is in the nature of dangerous precedents that their reach is often difficult to confine. The entire history of speech restrictions reinforces that lesson.
In my view, freedom of movement is an important human right, even when restrictions on it are unrelated to speech. There should be a strong (though not absolute) presumption against restrictions. But even those who don't place high value on freedom of movement, as such, should be troubled by the use of movement restrictions based on political views.
Some argue that governments have the right to restrict entry based on speech for much the same reasons as private homeowners have the right to exclude advocates of ideas they dislike from their property. I criticize this "house" analogy in detail here. For present purposes, I would emphasize that the house analogy would justify barring entry based on holding any views that the government happens to dislike, not just those that are especially odious. If a government wants to bar all conservatives from entering, all advocates of democracy, or all Zionists, the house analogy suggests they have every right to do so.
Can speech-based entry restrictions ever be justified? Perhaps in some extreme cases. I doubt that any right should ever be absolute. It is possible to imagine extreme circumstances where a speech-based restriction on entry is the only way to prevent some great harm, for example the takeover of the government by some oppressive political movement. For example, the Russian Provisional Government likely should have barred Lenin from reentering the country in 1917. Similar dangers can potentially justify more conventional "domestic" speech restrictions. For example, the Weimar Republic would have been justified in banning the Nazi Party, if that were the only way to keep them from coming to power.
But such situations are rare, and a well-designed constitutional system should at least require the government to provide strong evidence that such a grave threat really does exist, and speech restrictions are the only feasible way to deal with it. At any rate, Omar and Tlaib do not pose any such threat to Israel. The same goes for the overwhelming majority of other people whom the US, European states, and other governments have denied entry to because of their political views.
Obviously, restrictions on movement can also be justified in situations where the person in question plans to engage in terrorism, violence, or other comparable crime. But such constraints can be applied regardless of the individual's political views, and regardless of whether the movement in question is international or domestic. If, for example, US authorities had realized in advance that the perpetrator of the recent El Paso mass shooting was traveling to that city from Dallas for purposes of committing a horrible atrocity, they would have had every reason to stop him.
UPDATE: Since I put up this post, the Israeli government offered to let Rashida Tlaib enter for the "humanitarian" purpose of visiting her elderly grandmother, who lives on the West Bank, but only on condition that she give a written pledge that she will not "promote boycotts against Israel," while there. Tlaib, in turn, has refused these "oppressive" conditions, though she previously indicated she would "respect any restrictions and not promote boycotts against Israel during my visit." For a more detailed account of this episode, see here.
Allowing a person to enter on condition that they not express certain political views while in Israel is less objectionable than barring people with those views entirely. But it is still a restriction on both freedom of movement and freedom of speech, and still unjust except in the sorts of extreme circumstances described above.
The Israeli government's willingness to let Tlaib enter so long as she refrains from expressing pro-boycott views also makes it even more clear that her speech is in fact the reason she was barred in the first place, not any kind of security risk. If the latter were the problem, presumably her keeping quiet about boycotts would not be enough to persuade them to admit her.
That conjecture is also supported by the fact that the Israelis initially decided to let her and Rep. Omar enter without speech-related conditions, but then changed their minds after Trump pressured the Israeli government to bar them. Again, if the Israeli government thought the two congresswomen posed a security threat, it's unlikely they would have ever decided to let them enter in the first place.
