The Volokh Conspiracy

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

The Volokh Conspiracy

The Populist GOP and its Yale Law and Harvard Law Leaders

A notable dynamic, and one worth trying to explain.

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The nomination of J.D. Vance as the Republican party's Vice-Presidential candidate in the upcoming election brings up an interesting contrast.  On one hand, today's GOP embraces a heavy dose of populism.  It's pretty standard for Republican politicians to rail against elites who are against the average Joe. On the other hand, if you look at the younger generation of GOP leaders, the politicians who are likely to lead the party in coming years, there sure are a lot of Harvard Law School and Yale Law School graduates.

J.D. Vance is one example. He's a graduate of Yale Law School, Class of 2013.  But think of other possible future GOP Presidential candidates.  There's Senator Joshua Hawley, Yale Law Class of 2006.  And lots of Harvard Law grads are in the mix. We have Florida Governor Ron DeSantis, Harvard Law Class of 2005 (sort of a crossover, as he went to Yale for college).  And Senator Ted Cruz, Harvard Law Class of 1995, where he went after college at Princeton. And there's also Senator Tom Cotton, Harvard Law Class of 2002.  I'm probably forgetting others.

It seems worth asking, how is it that the GOP has embraced both populism and a set of prominent figures, at least among the younger generation, who are Harvard Law and Yale Law graduates?  Or maybe more specifically, why is it that going to an elite law school seems to be a significant advantage within the GOP?

One answer might be that this is not a story specifically about the GOP at all.  There are certainly lots of Democratic leaders who went to these places!  It's kinda barfy, if you think about it. If you look at the last eight Presidential elections, six of the eight Democratic Presidential nominees went to Harvard Law or Yale Law. (If you're wondering: Harvard Law's Michael Dukakis was the unsuccessful nominee in 1988; Yale Law's Bill Clinton was the successful nominee in 1992 and 1996; Harvard Law's Barack Obama was the successful nominee in 2008 and 2012; and Yale Law's Hillary Clinton was the unsuccessful nominee in 2016. As I said, kinda barfy.) So maybe this is bipartisan.  Maybe the advantages that flow to elite law school grads in politics cover both parties equally. Or maybe smart and ambitious youngsters plotting a political career know that and aim for those kinds of schools.

Maybe.

But I suspect there's something else at work, too.  What's striking to me is that Harvard, Yale, and other "top" law schools have only a very small number of conservatives.  It's one thing for schools where Democrats vastly outnumber Republicans to generate a lot of future Democratic leaders. It's another for them to generate so many future Republican leaders.  The odds of a politically ambitious conservative at an elite law school actually becoming a big deal in American politics is unusually high, it seems to me—all the more striking given the GOP's populist turn.

What might explain that?   I don't know.  I'm curious about what explanations you might have.  But let me offer three possibilities, just to get the conversation started:

(1) There's an inside lawyer track that works in GOP politics (Examples: Cruz and Cotton).  In some of the cases, the individuals seem to have taken a role as elite lawyers within the party before running for office— using that legal role as a key conservative credential for later political campaigns.

Ted Cruz did this.  He clerked at the Supreme Court, served in the Bush Administration, and practiced in DC before he was appointed Solicitor General of his home state of Texas by then-Attorney-General Greg Abbott in 2003—just 8 years after Cruz graduated from law school.  He then argued a bunch of Supreme Court cases as state Solicitor General in which, representing Texas, he was on the conservative side.  Ted then used his lawyering before the Supreme Court as his key conservative credential to run for the Senate in 2012.

Josh Hawley's path to the Senate was in the same ballpark. After clerking at the Supreme Court and practicing a bit, Hawley returned to his home state of Missouri to be a law professor at the University of Missouri—while also helping to litigate Supreme Court cases on the conservative side.  From there, he ran for state Attorney General, winning that race just 10 years after he graduated from law school.  And then after just two years as state Attorney General, he won his Senate seat.  In both Cruz's and Hawley's cases, they used their academic credentials and legal experience as a key argument for their candidacies.  Their legal efforts on behalf of conservative causes at the U.S. Supreme Court apparently resonated with a lot of voters.

(2) Elite law school graduates come off as battle-hardened.  Another explanation, more specifically about populism, is that populist conservative voters are fine with voting for conservative graduates of elite law schools because having attended those school affords conservative politicians a sort of veteran status of its own.  The politicians running for GOP office don't speak fondly of their time at these schools. Instead, they present their time at Harvard Law or Yale Law as a difficult test of strength that they passed. They spent three years in the trenches of liberalism and they emerged victorious. They are now battle-hardened and ready to fight the liberals while in political office.  From that perspective, graduating from these schools isn't a problem. Instead,  like a medal on a military uniform, it's a credential.

(3) Adding elite law school credentials to military service creates a powerful combination (Examples: Vance, DeSantis, Cotton).  I'm less confident of this one, so maybe this is totally wrong. But speaking of military uniforms, it's hard not to notice that several of these politicians are also veterans. JD Vance served in the Marines from 2003 to 2007, acting, as I understand it, primarily in the role of a journalist and public affairs specialist.  Tom Cotton served on active duty as an officer in the Army from 2005 to 2009, where among other things he led an air assault infantry platoon in Iraq. Ron DeSantis joined the Navy in 2004 and was a lawyer for the Navy until his discharge in 2010.

These days, the combination of military service and attending top law schools is (unfortunately) pretty rare.  But it's possible that this combination is part of the political appeal here.  Maybe adding elite law school credentials to military service works really well together, especially in a GOP primary. It combines patriotism and bookishness, brawn and brains.  Not sure about this, but maybe the combination is at least part of what's politically powerful.

Internet Preservation and the Fourth Amendment—Case Updates, Part I

The first of two rulings, and why I find it unpersuasive.

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It is a common practice among criminal investigators to "preserve" Internet accounts without cause.  When an investigator learns that a suspect has a Facebook or email account, the investigator will direct the provider to run off and save a copy of the suspect's entire account and to hold it for the government.  If, weeks or months later, the investigator can eventually develop probable cause, the investigator can come back with a warrant and order the provider to hand over the previously-preserved account files.  And if the investigator never develops probable cause, the provider will usually realize eventually that the government isn't coming back, and it will usually then delete the extra government-ordered account records.  This procedure is called "Internet preservation," and it's done in the name of a provision of the Stored Communications Act, 18 U.S.C. § 2703(f).

As regular readers know, I think the Fourth Amendment imposes limits on Internet preservation.  First, the government ordering the provider to act makes the provider's act on the government's behalf state action, triggering the Fourth Amendment.  Second, copying the account contents is a "seizure" of the account contents.  And third, that warrantless seizure has to be justified as "reasonable" by having initial suspicion (typically probable cause) to justify the initial seizure and then the seizure occurring for only a reasonable period before a warrant is obtained.  So I argued in my article, The Fourth Amendment Limits of Internet Preservation.  And I backed up that article with a model brief for defense attorneys to file.

I'm pleased to say that at least a handful of motions to suppress have been filed based on my model brief. In several of  those cases, the government avoided the merits by eschewing reliance on the preservation copy of the account.  That is, instead of relying on a copy of the account that was only available when the preservation was made, the prosecution relied instead on files that were in the account when the government came to the provider with a warrant.

In at least two cases, however, courts have issued merits rulings. Unfortunately, the two courts that have issued merits rulings held that the Fourth Amendment was not violated.  I want to discuss those rulings, and to explain why I see them as so unpersuasive. This post will discuss the first case, United States v. Dallmann (D. Nev. May 25, 2024).  A second post, which I'll plan to put up in a few days, will cover United States v. Colbert (D. Kan. May 9, 2024).

Dallmann holds that Internet preservation raises no Fourth Amendment issues because Internet providers acting on the government's behalf to preserve accounts for the government are private actors not regulated by the Fourth Amendment at all. In Dallman, the government ordered Google to preserve a copy of the defendant's gmail account.  Later, the government came back with a warrant and ordered Google to hand over the previously-preserved account files.

Here's the court's reasoning for why Google was not a government actor when it preserved the account for the government:

The Ninth Circuit addressed a similar issue in United States v. Rosenow. 50 F.4th 715 (9th Cir. 2022). In that case, the defendant argued that federal regulation of electronic service provider searches and disclosures triggers the Fourth Amendment because the two relevant federal statutes authorized warrantless searches and required private parties to report evidence derived from those searches. The court found this argument unconvincing. The first statute, The Stored Communications Act, "did not authorize the service providers to do anything more than access information already contain on their servers." Id. at 730. The second statute, the Protect Our Children Act, only authorized mandatory searching, not mandatory reporting. Id.

Here, similarly as in Rosenow, the Government made a request for preservation pursuant to 18 U.S.C. § 2703(f). This statute "did not authorize the service providers to do anything more than access information already contain on their servers." Id. at 730. Google complied with a federal statute mandating preservation of records. Importantly, the Court finds that Google did not search the content of its records for evidence of a crime—as government agent would. It merely preserved existing records. The Ninth Circuit emphasized that a private actor does not become a government agent simply by complying with a mandatory reporting statute. Id. (referencing Mueller v. Auker, 700 F.3d 1180, 1191-92 (9th Cir. 2012)). Google would then not be a government agent by merely preserving information already in its possession.

The Court finds that Google was not a government agent, and the Defendant did not meet its burden of showing that the search was governmental action. See United States v. Rosenow, 50 F.4th 715, 728 (9th Cir. 2022). "[E]ven if the Fourth Amendment protects files stored with an [E]SP, the [E]SP can search through all of the stored files on its server and disclose them to the government without violating the Fourth Amendment." Id. (quoting Orin Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1212 (2004)).

Hence, the Fourth Amendment was not implicated by Google's actions. Accordingly, the Court determines that the Government did not unlawfully seize Mr. Dallmann's email accounts through its preservation request.

I appreciate the cite, but I son't think that can be right.  The legal issue addressed in Rosenow was whether the mere existence of the Stored Communications Act and Protect Our Children Act turned everything the Internet provider did into government action. Rosenow ruled that the statute's existence did not have that effect.  That seems clearly correct; a statute imposing some limits on provider action doesn't mean that every provider action is government action.

But the legal issue here is very different: When the government orders a private company to act on its behalf, and the private company acts solely in response to the government and solely on its behalf — literally copying the files and setting them aside just for the government — are they government actors?

It seems obvious to me that they are.  True, the provider is "compl[ying] with a federal statute mandating preservation of records." But that's part of what makes it government action. If a statute requires you to do what the government tells you to do, the fact that Congress is forcing you to comply doesn't make your action less imposed by government.  It just makes it what it sounds like: Government-imposed action, exactly what the Fourth Amendment addresses.

As I argued in my article: Read More

Supreme Court

Biden to Propose Supreme Court Reforms

The proposals are likely to include term limits for Supreme Court justices, a binding ethics code, and a constitutional amendment limiting the president's and other officials' immunity from prosecution.

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The Supreme Court. (Joe Ravi/Wikimedia/CC-BY-SA 3.0)

 

If media reports are accurate, President Biden will soon put forward a package of judicial reforms for Congress to enact. The Washington Post summarizes their likely content:

President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.

He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.

On the policy merits, these are all actually good ideas, subject to the important caveat that there may be devils residing in the details. However, the term limits proposal cannot be enacted by ordinary legislation, but requires a constitutional amendment.

Term limits for Supreme Court justices (usually taking the form of 18-year terms) is an idea that enjoys widespread support from both experts and the general public.  It brings together numerous legal scholars on different sides of the political spectrum, such as Sanford Levinson on the left, and Steve Calabresi on the right. Term limits attracted broader support than any other proposal considered by Biden's 2021 Commission on Supreme Court reform. A 2022 AP/NORC poll found that 67% of the public supports the idea, including 82% of Democrats and 57% of Republicans. I myself also support 18 year terms for justices, though I have warned this idea is unlikely to put an end to ideological and partisan conflict over the Court.

The problem with Biden's potential proposal is that he apparently wants Congress to enact the idea by statute, rather than through a constitutional amendment. Along with most other legal scholars, I think that's wrong as a matter of constitutional law. It would also set a dangerous precedent, if the president and Congress succeeded in getting it enacted, and courts did not strike it down as unconstutional. I explained why in a 2020 post:

If Congress can impose an 18 year term limit, they can also impose much shorter ones, such as a five year limit or a two year limit. That would make it easy for any party that controls both Congress and the White House to get rid of justices whose rulings they dislike, and replace them with more supportive jurists. And if Congress can impose term limits on all justices, they can also selectively impose them on specific justices it especially wants to get rid of, while leaving the others alone. For example, if a Democratic Congress wished to get rid of Gorsuch, Kavanaugh, or Amy Coney Barrett…, they could pass a law imposing very short terms on justices appointed in 2017, 2018, and 2020, respectively. Republicans could use similar tactics to target liberal justices who might otherwise become thorns in their side.

Some proposals put forward by Democrats would create a kind of rotation system, limiting the roles of longer-serving justices, rather than removing them from the Court entirely. These ideas have much the same constitutional flaws as more conventional statutory term limits. And they also pose a similar threat to judicial independence. Legally, the key point is that the Constitution provides for filling the "office" of a judge of the "supreme court." As Michael Ramsey pointed out in a critique of an earlier rotation proposal:

Necessarily, holding the "Office" of judge of the supreme Court means acting in a judicial capacity as a member of the supreme Court, not simply having the title and filling in occasionally. This constitutionally defined office can't be redefined by statute to mean the office of acting in a judicial capacity as a member of the supreme Court for a while and then doing something else for the balance of one's tenure. (Otherwise, Congress could define the "Office" of Supreme Court Justice as serving as a Justice for 5 years and then serving as dogcatcher in East Outback, Alaska, for the rest of the time)

Ultimately, if enacted, statutory term limits would likely be challenged in court, and the justices would probably rule against them.

Unlike in the case of term limits, Congress has broad (though not unlimited) power to enact ethics rules for the justices. Justice Alito was wrong to suggest the legislature has no authority to regulate the Court. As a policy matter, I think it would be desirable to limit the extent of gifts justices can receive from private parties, thereby banning the kinds of very large gifts that Justice Thomas, among others, has gotten. I think these kinds of gifts are already now forbidden by the Justices' voluntary ethics code, adopted last year. But there's no harm, and likely some benefit, in making such rules mandatory.

I have little sympathy for arguments that the justices need to be able to accept large gifts in order to supplement their supposedly inadequate salaries. Currently, the Chief Justice gets an annual salary of $312,200 and associate justices get $298,500. That seems more than enough to live very well, even in the admittedly expensive Washington, DC area (whose costs are familiar to me, because I live there myself).

Yes, I know that big law firm partners make much more than this. But the power and prestige of being a Supreme Court justice provide extremely valuable nonpecuniary income. Plus, justices don't have to work as many hours as most elite private sector lawyers, and they get to take much longer summer vacations, if they want to.

At the same time, there is no evidence that any modern justice ever changed a vote or opinion in exchange for gifts. So anyone who expects this kind of reform to lead to changes in the Court's jurisprudence is likely to be disappointed.

In addition to gift limits, an ethics code might also include recusal rules, and perhaps other provisions. I would have to see the details before passing any kind of judgment on them.

Finally, I am very much in favor of a constitutional amendment stripping presidents and other high officials of immunity from criminal prosecution for actions taken while in office. The Supreme Court's recent ruling in Trump v. United States goes too far in granting such immunity to the president, though the exact scope of what they have given him is often vague. On balance, I think the danger of giving presidents and other high officials impunity for criminal abuses of power is a far greater danger than the problem of excessive prosecution by partisan enemies. The latter, moreover, could be curtailed by giving the president statutory immunity for various petty charges (which I would hope any constitutional amendment would still allow the legislature to do).

Obviously, as with almost any meaningful amendment, the odds of enacting this one are extremely low. It seems to me highly unlikely that any immunity-constraining amendment could get the necessary two-thirds support in both houses of Congress, plus ratification by three-fourths the states.

A term limits amendment would have a better chance of passing, because of the broad bipartisan support for the idea, among both experts and the public. But it would still be an uphill struggle. Moreover, the drafters would need to find ways to address the issue of how to deal with current justices. Exempting them would likely anger the political left. Not doing so risks losing support on the right.

The President's motive for putting forward these ideas now is likely at least partly political. The Supreme Court has become highly unpopular. Currently, it only has an approval rating of about 36% in the 538 average of recent polls, with about 56% disapproving. Targeting the Court might be good politics, and could help bolster Biden's flagging campaign. Moreover, if reports about the proposals are correct, Biden has focused on ideas that are generally popular, such as term limits, while avoiding much less popular (and very dangerous) idea of court-packing.

As noted above, purely statutory term limits would set a dangerous precedent. But swing voters (most of whom don't follow policy issues closely, and know little about them), may not grasp that.

When and if Biden actually puts forward these proposals, we will learn more about how good or bad they are, and whether they have any political effect. Stay tuned!

UPDATE: I suppose I should make the relatively obvious point that any Supreme Court reform statutes are unlikely to pass before the November election, given that the GOP-controlled House probably would not put them up for a vote.

Free Speech

Pseudonymity Allowed in Case Challenging NCAA's Rules Allowing Transgender Contestants in Women's Sports

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Monday's decision in Gaines v. NCAA by Judge Mark Cohen (N.D. Ga.), allows two plaintiffs in a challenge to NCAA's transgender eligibility policies to proceed pseudonymously:

Although [federal law] creates a "strong presumption in favor of parties proceeding in their own names …, the rule is not absolute. A party may proceed anonymously by establishing 'a substantial privacy right which outweighs the 'customary and constitutionally embedded presumption of openness in judicial proceedings.'" …

[T]he Court finds that the allegations in this case concern matters of personal beliefs and positions that could subject the Doe Plaintiffs to stigmatization, ostracization, retaliation, and violence. Specifically, Plaintiffs take the viewpoint that transgender women "have inherent physical advantages" over cisgender women and should not be allowed to compete in single-gender athletic contests "as a matter of fairness." Because this lawsuit involves personally held beliefs regarding gender identity, the Court finds that disclosure of the Doe Plaintiffs' identities would be tantamount to compelling them to "disclose information of utmost intimacy."

Furthermore, Plaintiffs have also offered declarations of Plaintiffs Riley Gaines and Lily Mullens, as well as members of faculty and administration at various universities, testifying to the retaliation, threats, and stigmatization they experienced as a result of voicing their opinions on the transgender-athlete controversy. See, e.g., Decl. of Riley Gaines (averring that she was trapped in a small office for three hours while protestors yelled profanities at her, including calling her transphobic). The Court finds that Plaintiffs have submitted sufficient evidence that the Doe Plaintiffs would likely face adverse reactions in their communities should they be required to disclose their identities at this time. While the Court is mindful that "personal embarrassment alone is not enough for leave to proceed anonymously," "the Court recognizes the unique sensitivities that exist within the current political climate and social context," and finds that leave to proceed pseudonymously is appropriate in this case….

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Preserving the Issue of Whether Morrison v. Olson Should Be Overruled

The Special Counsel is squarely on notice that the question of whether Morrison’s holding should be preserved or overruled is at issue.

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Justice Scalia's dissent in Morrison v. Olson is the cornerstone of conservative legal thought. Every year I teach it, I gain new insights into the separation of powers. Nearly four decades later, the opinion gets better with time. (Justice Kagan said that, or at least something like that.) Alas, Chief Justice Rehnquist's majority opinion remains controlling law. The Court had no occasion to overrule Morrison, but it has been eroded in cases like Seila Law and Arthrex. However, Special Counsel Jack Smith's prosecution of Donald Trump presents just that opportunity for Morrison to be overruled. And I personally made sure of it.

During oral argument in Judge Cannon's court, I preserved the issue of whether Morrison should be overruled by the Supreme Court. It was the very last thing I said before I sat down.

MR. BLACKMAN: I will make just one last point, Your Honor, and then I'll sit down. Morrison v. Olson, of course, is precedent. I don't know that the defendants have asked to preserve the issue over whether Morrison should be overruled. Maybe I can. I will. But I think this is a precedent that has been chipped away by Seila Law and other cases. And I think it's at least fair to acknowledge that this stands on a shaky foundation.

THE COURT: All right. Thank you very much. I appreciate your assistance.

MR. BLACKMAN: Thank you, Your Honor.

[ECF No. 647, p. 112.]

During rebuttal, James Pearce, the lawyer for the Special Counsel, referenced my remark, though I don't think he quite got what I was trying to do.

MR. PEARCE: Now, I want to spend just a moment, if I could, on the difference between "employee" and "officer." I think that was the thrust of what I understood the Tillman amicus brief and Mr. Blackman—although Mr. Blackman was wide-ranging, I think he asked this Court to overrule Morrison v. Olson, which I don't think is in any way presented. But I want to focus on what the brief was about. [ECF No. 647, p. 155 (bold added).]

But Judge Cannon understood exactly what I said. Her opinion expressly referenced the preservation of this issue in Footnote 54:

Post-Edmond, the viability of Morrison has been called into question. See, e.g., N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 315 (2017) (Thomas, J., concurring) ("Although we did not explicitly overrule Morrison in Edmond, it is difficult to see how Morrison's nebulous approach survived our opinion in Edmond. Edmond is also consistent with the Constitution's original meaning and therefore should guide our view of the principal-inferior distinction."); Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 617 & n.8 (citing cases and scholarship). Nonetheless, because it has not been overruled, the Court proceeds to apply the Morrison test alongside Edmond. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stressing the Supreme Court's "prerogative of overruling its own decisions"). Defendants have not argued for the overruling of Morrison in this court, although the matter was raised at argument by the Landmark Legal amici. [Tr. of Oral Argument (June 21, 2024)] ECF No. 647 p. 112; ECF No. 364-1 (criticizing Morrison). [slip op. 71 n.54 (bold added).]

A few hours after my oral argument concluded, I wrote about Mapp v. Ohio. In that case, the ACLU as amicus asked the Supreme Court to overrule Wolf v. Colorado. And the Supreme Court did just that. I wrote, with some degree of self-awareness, that it would be even better for the issue to have been raised by an amicus in the lower courts:

More relevant to the present day, the holding of Mapp suggests that an Amicus who is invited to participate can ask the Supreme Court to overrule a precedent, and the issue is not waived. Indeed, the Amicus was allowed to make this request for the first time before the Supreme Court, even where it was not raised in the lower court litigation. The Supreme Court apparently did not see any problem with waiver or the party presentation rule here. If what the ACLU did was proper, it stands to reason that a similar request could be made by an amicus who is invited to participate in the lower courts, if only to put everyone on notice that a precedent is in doubt, and to preserve the issue for review by the Supreme Court.

Another relevant precedent is Teague v. Lane (1988). In that case, the plurality, per Justice O'Connor, addressed a retroactivity issue that was only pressed by amicus:

The question of retroactivity with regard to petitioner's fair cross-section claim has been raised only in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. See Brief for Petitioner 21-32; Brief for Respondent 31-38. Moreover, our sua sponte consideration of retroactivity is far from novel. In Allen v. Hardy, we addressed the retroactivity of Batson even though that question had not been presented by the petition for certiorari or addressed by the lower courts. See 478 U.S. at 478 U. S. 261-262 (MARSHALL, J., dissenting). See also Mapp v. Ohio, 367 U. S. 643, 367 U. S. 646, n. 3 (1961) (applying exclusionary rule to the States even although such a course of action was urged only by amicus curiae).

In dissent, Justices Brennan and Marshall expressed astonishment that the plurality reached this issue based on the representation of an amicus:

Astonishingly, the plurality adopts this novel precondition to habeas review without benefit of oral argument on the question, and with no more guidance from the litigants than a three-page discussion in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24.

But such is the law of issue preservation before the Supreme Court. Unless a different set of law applies nowadays. 

Given Mapp and Teague, from my vantage point, the issue of whether Morrison v. Olson should be overruled has been preserved. And the Special Counsel is squarely on notice that the question of whether Morrison's holding should be preserved or overruled is at issue.

With the benefit of hindsight, Attorney General Merrick Garland's decision to appoint Smith may become one of the greatest blunders in DOJ history. Or, from a different vantage point, his decision may lead to the greatest strengthening of the President's Article II power in Supreme Court history. First, the investigation led to the sweeping immunity ruling in Trump v. United States. Second, the prosecution may lead to the special counsel regulations being called into question by the Supreme Court, if not the overruling of Morrison. Third, none of these cases yielded a trial, let alone a conviction, before the election. Fourth, despite everything that has happened over the past four years, Trump is still leading in many polls, and may still be reelected. What good did any of these proceedings accomplish? Garland would have been better off indicting Trump in January 2021, or doing nothing at all.

Free Speech

Calling Someone an "Amateur" May Sometimes Be Defamatory

“This Court rejects Defendants’ argument an ordinary person could find ‘amateur,’ in this circumstance, to refer to ‘one who engages in a pursuit, study, science, or sport as a pastime rather than a profession’ or a ‘devotee, [or] admirer,’ given the surrounding context and circumstance.”

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From yesterday's decision by Judge Frank Whitney (W.D.N.C.) in McBride v. Sacks:

Plaintiff Ty McBride … is the manager of [co-plaintiff] Mason Lane Entertainment LLC …. Sacks is an employee or agent of [the companies] Partisan … [and] Selmona ….

McBride has, for years, "operated music concerts" in the Charlotte area, responsible for attracting talent and scheduling events for venues around the city. McBride performs these services through Mason Lane. Prior to the initiation of this litigation, Plaintiffs were approached by representatives of then-unopened outdoor amphitheater AMP Ballantyne ("AMP"), its management company NOW Amphitheater Management LLC ("NOW"), and its primary investor … seeking McBride's expertise in venue management.

The five parties entered into a partnership wherein Plaintiffs "expended considerable time and provided extensive services" to prepare AMP Ballantyne for its launch. According to McBride, services rendered were uncompensated, and performed under the partnership agreement in expectation of future gain. Around June 2023, NOW entered into an Amphitheater Event Management Agreement ("AEMA") with Mason Lane under which Plaintiffs would provide various specialized services, including "securing entertainment for AMP Ballantyne events and setting up and running the food and beverage program for AMP Ballantyne events," in return for a portion of revenue generated through ticket, food and drink, merchandise, and parking sales.

In July 2023, McBride initiated discussions with Sacks to secure a Big Head Todd and the Monsters ("Big Head") concert at AMP. McBride and Sacks failed to agree on terms, after which Sacks reportedly "became angry and called McBride an amateur." Sacks then cancelled a band previously scheduled to perform at AMP, which McBride concludes occurred "because [Sacks] was angry with McBride about the Big Head Todd situation." McBride alleges Sacks, during a phone conversation with AMP promoter Bobby Hendrix ("Hendrix"), stated he did not trust AMP to schedule shows with Partisan because of McBride, telling Hendrix "AMP Ballantyne was not vetting its promotors or working with seasoned people," purportedly in reference to McBride. Sacks also stated to Hendrix, among other unspecified accusations, "McBride did not know what he was doing and was an amateur," and "Partisan Arts would not schedule further concerts for Partisan Arts's artists at the AMP Ballantyne if McBride continued to be associated with the venue."

Plaintiffs contend NOW opted to terminate the AEMA and inform McBride it could not move forward with any future commercial partnerships because of Sacks' threat to sever ties with the AMP parties if they continued to associate with McBride….

The court allowed plaintiffs' defamation claim to go forward for various reasons, including:

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Revisiting Hamas's Barbaric Attack on Southern Israel: Guest Post by Adam Mossoff

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Note from DB: I was going to post something about my visit to the South during the lawprof fact-finding mission I attended, by my colleague Adam Mossoff posted an incredibly thoughtful and well-written account of that day on Facebook that sums up what I wanted to say and more. With his permission, it's reprinted below. If want to see the original public post on Facebook with the devastating accompanying photos, click this link.

Day 2 (July 10) of the law professor mission to Israel was incredibly difficult, as we went south to the Gaza Envelope to visit the sites of the October 7 massacres and atrocities: Kibbutz Nir Oz, the Nova festival grounds, the IDF base Nahal Oz, and the car cemetery at Tekuma. We had guides or speakers at each place, and the stories and information they conveyed made the destruction and death of that day that much more real. It is impossible to convey fully in words or pictures the full sense of destruction of homes and cars—the burned-out husks of homes, the bullet holes, the utterly destroyed vehicles. The stories of sadism committed by the Hamas soldiers and even civilian Palestinians who killed Jews with nihilistic glee – babies, children, adults of every age from 18 years old to the elderly. It was psychologically devastating and emotionally draining to see and hear of pure, unadulterated evil. The only thing worse was the 45-minute film of GoPro videos by the Hamas soldiers we watched the following morning.

As I mentioned in my first post on the first day, the World Jewish Congress did another incredible job with the logistics, including bookending this difficult day with two positive events. First, we began the day early with a stop in Ashkelon, a city of 200,000 people that is only 8 miles from Gaza. It has borne the brunt of the rocket attacks by Hamas for many, many years, and its hospital has been hit many times. But we were in Ashkelon on Wednesday morning to visit the School for the Gifted that was founded and run by Elina Lustov and to learn about the Atlas Juniors program run by Elina and Boaz Arad. The Atlas Junior program provides teenagers the specific knowledge and skills to succeed in high-tech and biotech careers, such as at startups, large companies, or as entrepreneurs themselves. We learned about their studies and the students each did short presentations on their internships at companies and the cutting-edge tech or biotech projects they worked on. It was an inspiring vision of the virtues of Israeli society that promotes education and the application of science and technology in a civil society through commercial development and the free market. The students in the Atlas Juniors are all from Ashkelon or from surrounding communities and kibbutzim that were attacked on October 7, and so we also spoke with them a bit about this. These teenagers are all still deeply affected by that horrible day, but their focus on the future, their intelligence, and their aspirations are both palpable and inspirational.

It was then on to the Gaza Envelope – the area of Israel that is within 4.3 miles (7 km) of the border of Gaza – and one of the most difficult 12-hour days I have ever had in my life.

Our first stop was at the car cemetery near Tekuma. This was not originally intended to become a memorial, as it was setup by the IDF in the days following October 7 for the purpose of collecting the literal ashes and other small body parts from cars that were either burned down to their metal frames or riddled with bullets – or oftentimes both. There are 1,650 cars at the car cemetery. We listened to a presentation by IDF Captain Adam Ittah, who explained what happened on October 7 and gave us the backstories to some of the vehicles, such as an ambulance from the Nova festival that is utterly destroyed – it's nothing but a fire-scarred metal frame riddle with bullet holes (see picture below). During the October 7 attack at the Nova festival, many people, many of whom already wounded, had taken refuge in this ambulance. Hamas soldiers attacked the ambulance (a war crime), riddling it with bullets, throwing hand grenades inside, and then shooting it with an RPG to set it on fire. Ultimately, there was nothing left inside but ashes, from which scientists identified 18 different people. Captain Ittah explained how everything that Hamas soldiers did that day was planned in advance. They brough zip ties for raping and taking hostages, and they brought accelerants with them to set fire to cars and houses so that the fires burned hotter and more intensely. Why bring accelerants?

Their purpose was to reduce their victims to ashes – literally. Judaism has very strong rules and norms about preserving for proper burial any bodies or human remains, and Hamas knew about these norms. So, many Israelis spent weeks and months carefully sweeping up ashes from utterly devastated car husks and from homes, periodically finding small body parts like a finger. They would then send these ashes or remains to laboratories for identification and proper burial. In some cases, officials had to exhume ashes already buried to test them again, because they had uncovered new evidence that the ashes were the remains of two or more people. In some cases, they heartbreakingly discovered this had in fact happened. All of this was confirmation of one of the purposes of the October 7 attacks by Hamas, as Captain Ittah carefully laid out the evidence for the case he was making to us. Hamas did not just want to kill as many Jews as possible, as well as kill others who support Jews by being in Israel, like the Thais, Druze, and Bedouins also slaughtered by Hamas. Hamas deliberately sought to humiliate and denigrate everyone they attacked on October 7 – rape, torture, murder, and then make it next to impossible even for loved ones to identify and bury the victims of these heinous war crimes.

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Free Speech

District Court Rejects Magistrate Judges' Gag Order on Publishing Name of Retroactively Pseudonymized Litigant

"Professor Volokh may not ... publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse."

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As some readers may recall, I've been trying since 2022 to get unsealed a federal case in which all the documents were sealed. The case itself was brought using the parties' names, and the docket sheet itself was publicly available. But the only documents that I could read were an opinion that had been posted to Westlaw before the case was sealed and several opinions that had been apparently erroneously made available on Westlaw while the case was sealed. Those documents revealed that there were some interesting First Amendment questions raised by some of the orders in the case, which is why I wanted to be able to access more information from the record. (Now that the orders are indeed unsealed, I hope to write about them soon.)

My UCLA student Nora Browning and I eventually argued the matter in the Fifth Circuit, and the Fifth Circuit agreed in Sealed Appellant v. Sealed Appellee that the case should largely be unsealed, though with redactions of personal information (to which I didn't object).

The Fifth Circuit also instructed the District Court to consider whether the case should be retroactively pseudonymized, on the grounds that plaintiff had been suing in part over alleged revenge porn, and possibly that there was other highly personal information about the plaintiff in the record. I am not sure that the law authorizes retroactive pseudonymization, but I chose not to object to such pseudonymization in this particular case: I just wanted access to the court records, and I sympathized in some measure with the plaintiff, who likely would have been allowed to proceed under a pseudonym in the first place had this been requested at the outset instead of total sealing.

Back in District Court, the Magistrate Judge

  1. ruled in favor of retroactive pseudonymization (more on that in a later post, I hope),
  2. acknowledged that it was not "imposing any obligation on Professor Volokh to retroactively pseudonymize his own writings on this case that are already in the public domain,"
  3. but nonetheless ordered that "Professor Volokh may not, however, publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse."

Unsurprisingly, I objected to that no-public-disclosure gag order, and yesterday the District Judge agreed (Doe v. Friendfinder Networks, Inc., 2024 WL 3423720):

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Politics

Mission to Israel Part IV: What I Learned About The Israeli Politics With Regard To The Hostages

If you think American politics are corrosive, hold my falafel.

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[This is the four post in my series on my mission to Israel. You can read Parts I, II, and III.]

Though I don't particularly care for American politics, I generally understand how the various systems work. With regard to foreign governments, I neither care about their political systems, nor understand how they work. I write this post about Israeli political system with some trepidation, but I think it is relevant to understand the current situation with regard to the hostages.

In December 2022, Benjamin Netanyahu (known as Bibi) formed a government in parliament. His coalition included several members from (what are known as) far-right parties. A leading charge of the new government was judicial reform. Indeed, as I wrote in Part III, these reforms were viewed as essential to liberate the people from the rule of elite lawyers. Unsurprisingly, elite lawyers who wiled this power opposed these changes. These proposals triggered massive nationwide protests. Every Saturday night, people took to the streets of Israel to oppose changing the courts. They went on labor strikes and shut down roads. Society ground to a halt. Indeed, these protests spread to America, though I suspect most of the people marching knew as much about the Israeli Supreme Court as the kids at Columbia know which river and sea border Israel. After sustained protests, the government backed away from most of the proposals. (And those proposals that were passed were later declared unconstitutional.)

But then October 7 happened. And at least for a while, the protests ceased. I think most Israelis formed a sense of solidarity. There was a collective purpose–to bring the hostages home. Throughout Israel, signs appear with the faces of the hostages. The English translation reads "Bring them home," "Bring him home," or "Bring her home." But not everyone agreed on what those signs mean. Was it a charge to Hamas to release the hostages? Or was it a charge to the Netanyahu government to negotiate with Hamas to bring the hostages home?

Soon enough, the Saturday night protests returned. During my visit, the protest on the nine month anniversary of 10/7 swept across the nation. I asked what exactly the people were protesting: the return of the hostages or the Netanyahu government. The answer was both. The dynamics here are complicated.

Some of the protestors are calling for an immediate ceasefire to ensure the release of the hostages. Their sole priority is to bring the hostages home, and they will deal with the consequences later. But if Netanyahu agrees to a cease-fire, the "far right" members would leave the coalition, which would result in the dissolution of the current government. And if Netanyahu loses power, critics say, he will become more vulnerable to criminal prosecution on a host of long-standing allegations. So, critics contend, Netanyahu refuses to agree to a ceasefire, even if one would release the hostages, in order to ensure his government continues, and he stays out of legal hot water. Critics of Netanyahu consistently repeat this refrain. See this article in the Jerusalem Post. But things are not that simple.

I asked several critics of Netanyahu to imagine that a ceasefire is reached, a new government is formed, and the hostages are released. What policy should this new government adopt towards Hamas? The answer was consistently I don't know. I ask them what should Israel do to prevent Hamas from rebuilding its terror network and infrastructure. They don't know. So as unpopular as Netanyahu's policy is now, I'm not sure that the critics really have any other idea–other than to reach a ceasefire to return the hostages. Regrettably, many Americans on the left suffer from TDS–Trump Derangement Syndrome. I think at least some Israelis suffer from a different type of BDS–Bibi Derangement Syndrome. They are so morally opposed to everything Bibi does that they are unable to see some of the value in the difficult decisions he is making.

Then there is the issue of what a ceasefire would entail. As one international lawyer explained to me, every state retains the inherent power of self defense. Even if some deal was reached with Hamas, there is a 100% chance the terrorist organization would breach that agreement and engage in future terrorist attacks. 100%. And those attacks would allow Israel to immediately resume hostilities. One lawyer told me, half-jokingly, that Israel should agree to whatever terms Hamas demands because the terrorists will promptly breach any agreement, thus allowing Israel to resume strikes.

Certainly Hamas understands these dynamics. So why would they ever release all of the hostages? This is their leverage. One lawyer told me that taking a hostage was a very cost-effective means of pressuring Israel. Keeping the hostages also ensures that the weekly protests continue, and Israeli society remains divided. This strategy allows the nation to consume itself. One of the few hostages who was freed from captivity relayed that his captor–who freelanced as a "journalist"–showed him the protests on television. These protests are being used as propaganda by the terrorists to demoralize the hostages. Similar tactics were used during Vietnam with prisoners of war.

All of this is to say that the political situation in Israel is beyond complex. About half the nation hates Netanyahu but there is no coherent strategy, other than a ceasefire that will likely not hold, and will not result in the return of all hostages, but would likely allow Hamas to rebuild its terror infrastructure.

If you think American politics are corrosive, hold my falafel.

Politics

Making Sense of Justice Barrett's NetChoice Concurrence

I don't get the random questions Justice Barrett raises, and I'm not sure why she didn't mention her reservations in Hansen..

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On Monday, I tried to make sense of the various opinions in Moody v. NetChoice. Really, nothing lines up. Everyone agrees that the lower courts failed to apply the proper standard for the facial challenge. But the Justices then sharply divide about what kind of instructions to provide the lower courts, even as they all profess some sort of minimalism. After Justice Alito (likely) lost the majority opinion, the entire case went schizophrenic.

Here, I'd like to write about the most confounding opinion in the lot: Justice Barrett's concurrence. Unlike in Trump v. United States, she joins the majority opinion in full. Presumably, she agrees with Part II concerning the facial analysis, but she doesn't say a word about that part. But she does expressly agree with the Court's First Amendment analysis:

I join the Court's opinion, which correctly articulates and applies our First Amendment precedent. In this respect, the Eleventh Circuit's understanding of the First Amendment's protection of editorial discretion was generally correct; the Fifth Circuit's was not.

I'm still perplexed by this concurrence. Justice Barrett loves to extol the virtues of minimalism, and not deciding more than is necessary. If the lower courts botched the facial analysis, that should have been the end of the road. The Court is usually not in the business of providing a preview of how the lower courts should decide the case, where the entire complaint will likely need to be refiled. Moreover, I agree with Justice Thomas that the facial analysis is jurisdictional, or at least quasi-jurisdictional. Why provide a sneak-peak on the merits after finding a jurisdictional problem?

The remainder of Justice Barrett's concurrence left me scratching my head some more. She goes through an entire discourse of how to think about issues that are not present here. For example, she describes an algorithm that, as far as I can tell, no one is putting forward:

But what if a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will like—e.g., content similar to posts with which the user previously engaged? See ante, at 22, n. 5. The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm. And what about AI, which is rapidly evolving? What if a platform's owners hand the reins to an AI tool and ask it simply to remove "hateful" content? If the AI relies on large language models to determine what is "hateful" and should be removed, has a human being with First Amendment rights made an inherently expressive "choice . . . not to propound a particular point of view"? Hurley, 515 U. S., at 575. In other words, technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings' constitutionally protected right to "decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641 (1994) (emphasis added). So the way platforms use this sort of technology might have constitutional significance.

As I was reading this passage, my initial thought was, "why?" The thrust of the majority is the courts should only consider the claims actually presented (as applied), and not consider a sweep of technologies that are not presented (facial). Why then ponder technologies that NetChoice does not even offer? Justice Kagan's majority opinion explains that this issue is not relevant:

5We therefore do not deal here with feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards. See post, at 2 (BARRETT, J., concurring).

Then Justice Barrett goes on another detour about potential foreign ownership of tech companies.

So a social-media platform's foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny. What if the platform's corporate leadership abroad makes the policy decisions about the viewpoints and content the platformwill disseminate? Would it matter that the corporation employs Americans to develop and implement content-moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms.

Is she musing about the TikTok case here? I really have no idea. Why is any of this here?

This passage reminds me of her Fulton concurrence, where she raised a host of questions that really never mattered, and which she has shown no interest in revisiting since then. It was just makeweight to avoid overruling Smith.

Here is my sense of Justice Barrett, which may not make sense to those outside academia. But her type is typical. Let me describe. At a faculty workshop, a person presents a paper. A professor doesn't like the paper, but doesn't want to say anything harsh about it, so she raises a host of random questions about something completely different than what the paper was about–the dreaded comment is "this should be two papers"–and then shows no interest in whether those questions are ever answered.

Perhaps what confounds me the most is how Justice Barrett completely ignores her opinion in United States v. Hansen on the overbreadth doctrine. I praised that decision! One year earlier, she wrote that the overbreadth doctrine is extremely problematic:

For another, litigants mounting a facial challenge to a statute normally "must establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987) (emphasis added). Breaking from both of these rules, the overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.

But in NetChoice, Barrett favorably cites Hansen, without any reservations:

The court must then find a way to measure the unconstitutional relative to the constitutional applications to determine whether the law "prohibits a substantial amount of protected speech relative to its plainly legitimate sweep." United States v. Hansen, 599 U. S. 762, 770 (2023) (internal quotation marks omitted).

One of the virtues of Justice Thomas is he will include string cites of all of his opinions explaining why doctrines should be changed. Justice Barrett's concurrences seem more like one-offs than a thread. Each case is a new day.

Justice Kagan, quite notably, does not even mention the overbreadth doctrine, even though she cites Hansen several times. Overbreadth is closely related to a facial challenge in the First Amendment context. I still think that doctrine is on borrowed time.

Update: Justice Barrett wrote the majority in Hansen. An earlier version of the post reflected that she wrote the concurrence.

Politics

Today in Supreme Court History: July 17, 1862

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7/17/1862:  Congress enacts the Confiscation Act, which empowers the government to seize the property of the rebels. The Supreme Court considered the constitutionality of that law in The Confiscation Cases (1873).

The Chase Court (1873)

Joe Biden

Biden's Badly Flawed New Housing Plan

It combines nationwide rent control with modest supply-side measures potentially freeing up "underutilized" federal property for housing construction.

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Model houses |  Andrii Yalanskyi/Dreamstime.com
( Andrii Yalanskyi/Dreamstime.com)

 

Today, the Biden Administration issued a new housing policy plan. It combines a really awful idea -nationwide rent control—with a modestly good one: using "underutilized" federal government property to build new housing. Here is the White House summary of the rent control proposal:

President Biden is calling on Congress to pass legislation presenting corporate landlords with a basic choice: either cap rent increases on existing units to no more than 5% or lose valuable federal tax breaks. Under President Biden's plan, corporate landlords, beginning this year and for the next two years, would only be able to take advantage of faster depreciation write-offs available to owners of rental housing if they keep annual rent increases to no more than 5% each year. This would apply to landlords with over 50 units in their portfolio, covering more than 20 million units across the country. It would include an exception for new construction and substantial renovation or rehabilitation.

Economists and housing policy experts across the political spectrum recognize that rent-control is an extremely harmful policy, because it reduces the quantity and quality of housing. Don't take my word for it. Take that of such progressives as Paul Krugman, and Jason Furman, former chair of Barack Obama's Council of Economic Advisers, who condemns the Biden proposal because "Rent control has been about as disgraced as any economic policy in the tool kit. The idea we'd be reviving and expanding it will ultimately make our housing supply problems worse, not better." A recent meta-study in the Journal of Housing Economics reviews the extensive evidence of rent control's negative effects.

In fairness, as Reason housing policy writer Christian points out, the plan includes a number of mitigating elements that might reduce its harmful impact. It only applies to landlords with over 50 housing units, and exempts new housing construction and renovation. Also, it limits rent increases to 5% per year, instead of imposing a tighter cap. Still, the plan would apply to many millions of housing units (the White House claims the figure is 20 million), which will predictably reduce quality and supply.

If the rent control plan has a saving grace, it's that even the White House admits it would have to be enacted by Congress. This is unlikely to happen anytime soon. But, as

The Biden plan does include a countervailing good idea: the proposal to free up "underutilized" federal property to build new housing. Privatization of federal land could potentially do much to alleviate housing shortages. But it is far from clear how much land the administration actually proposes to make available for this purpose. It's also not clear whether they plan to privatize the land in order to allow private developers to build on it, or whether they envision some form of public housing, or a combination of both. Public housing has a terrible track record. Privatization is a much superior option.

Another frustrating element of the Biden plan is that the president knows - or at least used to know - that the best way to alleviate housing shortages is to cut back on zoning rules and other land-use restrictions blocking the construction of new housing. In 2020, he ran on a platform of using federal grant conditions to pressure state and local governments to do just that. But he has largely failed to carry out those ideas during his time in office.

In his article on the new Biden plan, notes that Trump and newly minted VP candidate J.D. Vance also have some awful housing-related policies. Most obviously, their plan to implement mass deportation of undocumented immigrants would wipe out much of the housing construction work force, and thereby predictably reduce construction and make it more expensive (this effect, plus other negative impacts of deportation on housing outweighs the potential benefit of a reduction in demand). Unlike the Biden rent control plan, the GOP deportation policy could likely be enacted without major new legislation, which makes it even more of a menace. Vance's idea of restricting corporate investment in housing would also predictably reduce supply.

But the awfulness of Trump and Vance's ideas in no way justifies Biden's rent control plan.

The primary goal of the Biden rent control plan may not be to alleviate housing shortages, but to bolster the president's reelection campaign. Studies suggest rent control is popular among voters, many of whom don't understand basic economics. Exploiting widespread public ignorance is a ubiquitous, time-honored political strategy. But that doesn't make it right.

No Qualified Immunity When "Public Officials … Baselessly Threaten[] a Citizen-Journalist With Legal Action"

"if he did not remove a video on a matter of public concern that he made and posted on Facebook without breaking any law."

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From Berge v. School Committee, decided yesterday by the First Circuit, in an opinion by Judge O. Rogeriee Thompson, joined by Judges David Barron and Lara Montecalvo (though there's a lot more going on in the opinion as well):

On a motion to dismiss a case, does qualified immunity protect public officials who baselessly threatened a citizen-journalist with legal action if he did not remove a video on a matter of public concern that he made and posted on Facebook without breaking any law? We answer no …. {[A]s a heads-up for the legal neophytes out there, qualified immunity gives officials cover when they decide close questions in reasonable (even if ultimately wrong) ways—sparing them from money-damages liability unless they violated a statutory or constitutional right that was clearly established at the time (much more on all that soon).} …

Inge Berge is a citizen-journalist living in Gloucester, Massachusetts. Back in early March 2022, he went to the city's school superintendent's office—which is open to the public (during specified hours, we presume). He wanted to buy tickets to his daughter's sold-out school play. And he wanted to hear from officials why the school's COVID-19 rules still capped the number of play-goers when the state had already lifted its COVID-19 mandates by then.

Visibly filming as he went along (he kept his camera out for all to see), Berge made sure to also tell everyone he met that he was recording. And no sign banned or restricted filming in the building's publicly accessible areas either.

Talking to executive secretary Stephanie Delisi, Berge said, "I'm filming this. I'm doing a story on it. If that's okay with you." "No, no I don't want to be filmed," Delisi answered back. Berge kept openly filming. Delisi then walked into superintendent Ben Lummis's office.

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New in Harvard JLPP Per Curiam: What We Did and Did Not Argue in United States v. Trump

Seth Barrett TIllman and I write about our experience in Judge Cannon's court, before the decision yesterday.

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On June 21, I presented oral argument in Judge Cannon's court on behalf of Professor Seth Barrett Tillman and the Landmark Legal Foundation. After the argument, Seth and I wrote an essay about our argument. To address some misperceptions, we discussed what we did and did not argue.

In case you are living under a rock, yesterday Judge Cannon granted the motion to dismiss the indictment. The court cited several of our arguments. We will have more to say about the court's decision in due course. But for now, we decided to publish our essay without regard for the court's decision.

Our HJLPP essay may shed some light on the court's decision. Here is the introduction:

On June 21, 2024, Judge Aileen Cannon of the United States District Court for the Southern District of Florida heard oral argument in United States v. Trump. This prosecution was brought by Special Counsel Jack Smith with regard to former President Trump's possession of certain documents at Mar-A-Lago. Blackman presented oral argument that day based on an amicus brief we had filed, with the Landmark Legal Foundation, in March.

Our goal here is to explain the lines of argument we put forward in our amicus brief, our motion, and at the hearing on Friday, June 21, 2024.[1] We will address three questions. First, does United States v. Nixon require the District Court to dismiss the former President's motion to dismiss the indictment? Second, does the Special Counsel hold a continuous "Officer of the United States" position? And third, has Congress appropriated money to pay the Special Counsel and his staff and contractors?

And here is our discussion about United States v. Nixon. Our argument did not turn on whether a passage in that case was holding or dicta:

During oral argument, we made a different argument. We assumed for the sake of argument that the parties in Nixon had raised the issue: that is, whether the special prosecutor's position was lawful. We further assumed that the Court's decision squarely addressed that issue. We even assumed that in addressing that issue, the decision on this point was the Court's holding, and not dicta. Even with all of these assumptions in place, Nixon is not controlling in United States v. Trump. Why? A prior decision is only controlling, as opposed to persuasive, where the facts are the same. And here, the facts are not the same.[4]

We put forward three reasons in support of our position. First, the Nixon Court repeatedly described the circumstances giving rise to the conflict as unique.[5] The Court described the special prosecutor as having "unique authority and tenure.[6] And finally, the Court plainly stated that the case was decided based on "the unique facts of this case."[7] When the Court tells the parties, the legal community, and the country that the facts are "unique" and when it does so multiple times, the implication is that other cases are, in fact, dissimilar and that the holding should not be extended to different facts at a subsequent date. Nixon was the proverbial ticket good for one ride—or perhaps, one president. Bush v. Gore could be characterized in a similar fashion.[8]

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Politics

Dean Kagan Would Rather Forget About Rumsfeld v. FAIR

But she did smuggle in a dictum that echoes Harvard's 2005 amicus brief about expressive activity in the classroom.

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What a difference two decades make. In 2003, Elena Kagan was the Dean of Harvard Law School. At the time, many law schools had banned JAG officers from recruiting on campus, citing the "Don't Ask, Don't Tell" policy. Dean Kagan did not ban JAG recruiters, but voiced support for the ban. She articulated this position in an email to the community:

"I abhor the military's discriminatory recruitment policy. The importance of the military to our society—and the extraordinary service that members of the military provide to all the rest of us—makes this discrimination more, not less, repugnant. The military's policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong—a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country."

Still, Kagan permitted the recruiters to use the Office of Career Services.

But there was also the Solomon Amendment. Under this federal law, colleges would be denied funding if they denied military recruiters access to campus. An association of law schools, known as the Forum for Academic and Institutional Rights challenged the constitutionality of the Solomon Amendment.

In 2004, Kagan joined an amicus brief before the Third Circuit, arguing that the Solomon Amendment violated Harvard's freedom of expression–in this case, excluding military recruiters as a way to protest "Don't Ask, Don't Tell." After the Third Circuit ruled for FAIR, Dean Kagan imposed the ban on military recruiters. But the Pentagon then threatened to withhold funding, and Kagan relented. (SCOTUSBlog links to many of the primary sources.)

The case was then appealed to the Supreme Court, with Kagan joining another amicus brief. The Court, per Chief Justice Roberts, ruled against FAIR by an 8-0 vote. (The case was argued in December 2005, before Justice Alito joined the bench.) The Court held that the Solomon Amendment regulated conduct, and not speech, and was constitutional. As I recall, the Dean of the George Mason University School of Law was the only Dean to file a brief in support of the Solomon Amendment. (Mason was a very special place in 2006–several months before I matriculated.)

I suspect Dean Kagan would rather forget about Rumsfeld v. FAIR. And, perhaps fittingly, in NetChoice, Justice Kagan downplayed the case. She only mentioned it briefly at the top of page 17 of the slip opinion, and in a curious footnote on page 18:

4 Of course, an entity engaged in expressive activity when performing one function may not be when carrying out another. That is one lesson of FAIR. The Court ruled as it did because the law schools' recruiting services were not engaged in expression. See 547 U. S. 47, 64 (2006). The case could not have been resolved on that ground if the regulation had affected what happened in law school classes instead.

I pulled the Harvard amicus brief in FAIR, and it included a very similar point:

Or, by the government's reasoning, Congress might use the hook of federal funding to require private universities to begin each class during hiring season by informing students of when and where military recruiters will be available for interviews. Because these conditions would not target "dangerous ideas," in the government's view they would present no constitutional problem. Plainly, however, such conditions would undermine both the principle of academic freedom and the First Amendment values that principle serves.

Dean Kagan never forgets an argument. Glad she smuggled that dicta into a majority opinion. It will be cited in contexts near and far. And, as nothing changes, Seth Waxman represented Harvard here, as he did in SFFA.

Justice Alito's NetChoice dissent points out how Justice Kagan glossed over FAIR, as well as Pruneyard.

Two precedents that the majority tries to downplay, if not forget, are illustrative. The first is PruneYard, which I have already discussed. . . .The decision in FAIR rested on similar reasoning.

Yes, Justice Kagan would rather forget about FAIR.

Of course, Justice Alito may have had some thoughts on this issue. Alito did not participate in the Third Circuit's panel opinion in FAIR. But he did serve in ROTC at Princeton. And he was affiliated with Concerned Alumni of Princeton, which was founded to bring ROTC back to Princeton, though he later disavowed that group.

Politics

Mission to Israel Part III: What I Learned About The Israeli Separation of Powers

Ambition does not check ambition. Erudition checks opposition.

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[This is the third post in my series on my mission to Israel. You can read Parts I and II.]

As a general matter, I am skeptical of comparative constitutional law. I think it is exceptionally difficult to master one legal system. I don't even pretend I've figured out own own laws. I barely have enough time to read all of the Supreme Court's decision. (I still need to finish JarkesyCorner Post, and NetChoice.) I doubt a professor could purport to be an expert of both Louisiana Civil Law and Texas Common Law, even though the states border each other! How can one person possibly become an expert in multiple legal systems from different corners of the globe, and purport to compare and contrast them? I have no clue. Maybe comparativists are simply smarter than us simple-minded schlubs who are mired in a single, provincial system of laws.

With that caveat in mind, I will describe my admittedly crude crash course into the Israeli separation of powers.

Israel has no written Constitution. Yet, it has a robust separation of powers: elite lawyers separate the power from the people. Ambition does not check ambition. Erudition checks opposition.

Let me provide a brief sketch.

Israel has a parliamentary government. A coalition that obtains a majority of the seats in the parliament can select a prime minister. The prime minister, in turn, can appoint various cabinet ministers. (I think technically the cabinet makes the appointment, but that doesn't make a difference for present purposes.) One of those ministers is the Attorney General. The Attorney General serves a fixed, six-year term. The Attorney General is entirely independent–there is no removal power. Indeed, the Attorney General can take positions that are adverse to the prime minister. And those positions are binding on the government. The prime minister has to go to court to reject the Attorney General's argument. And Israel has no standing rules, so the Attorney General, as well as outside groups, can challenge virtually any policy in court. Everything goes to the courts.

Due to the fluctuations in Israeli politics, an Attorney General appointed by a left-wing government can serve during a right-wing government. Can you imagine if Attorney General Holder served under President Trump? AG Sessions under President Biden? And, in candor, even an Attorney General appointed by a conservative government will still be the byproduct of the elite legal education system in Israeli. Conservative lawyers in Israel are a discrete and insular minority.

Here is another example. The Military Advocate General (MAG) is the equivalent of the American Judge Advocate General (JAG). The MAG is appointed by the incumbent government for a fixed term. (The duration, I was told is about five years, but the lawyers seemed a bit unsure.) The MAG is entirely independent. The Prime Minister has no at-will removal power over the chief legal advisor. Moreover, the MAG is completely outside the command structure of the military. As a result, military legal advisors officers are in no way accountable to the generals on the battle field. They answer directly to another independent official who cannot be removed, or even directed by the Prime Minister. If the government wants to take a military action, and the MAG says no,that is basically the final answer. I was told that the Prime Minister could, in theory, appeal a decision of the MAG to (wait for it), the independent Attorney General, and to the independent Supreme Court. My mouth was wide open. Again, the popularly-elected government will always be subordinate to the views of elite lawyers.

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