The Volokh Conspiracy

I just finished listening to the oral argument in Callais. There are almost certainly six votes to rule in favor of Louisiana here. Justice Kavanaugh came to the argument extremely well-prepared, and seems to have mapped out all of the contours of an opinion. It seemed like he was reading from notes, and articulating different standards that could apply. He quibbled a bit with the Deputy SG's phrasing, but I think he is generally comfortable with the government's framing of the case. Chief Justice Roberts was quiet, and (as best as I can recall) only asked whether certain issues were raised in the Alabama litigation a few year ago.  The Chief should assign the majority to Justice Kavanaugh, but will probably keep it himself. Justice Barrett was also working out some of the finer nuanced doctrines of the Enforcement Power analysis. She will probably write a concurrence along those lines.

There is much to discuss, but here I want to focus on a broader question of constitutional law.

Section 5 of the Fourteenth Amendment gives Congress the power to enact "appropriate legislation" to enforce the rest of the Fourteenth Amendment. City of Boerne v. Flores Court held that there are limits to Congress's power to remedy a violation of Section 1 (such as the Due Process or Equal Protection Clauses). Specifically, the remedy must be "congruent and proportional" to the constitutional violation.

The Supreme Court has never addressed whether the "congruence and proportionality" test also applies to Section 2 of the Fifteenth Amendment. I wrote about this way back in 2013 after Shelby County.

Today, several justices seemed to suggest that the Boerne test would limit Congress's powers under the Fifteenth Amendment. At one point, Justice Barrett asked counsel for petitioners to "assume" the Boerne test applied to the Fifteenth Amendment. In past cases, when Justice Barrett asks lawyers to assume something, that almost certainly means that is her position. Indeed, given Justice Barrett's unwillingness to reverse Smith, I think she will have to go all-in on Boerne.

If the Court does adopt the Boerne test, then the VRA inquiry changes. It is not disputed that the Fifteenth Amendment, like the Fourteenth Amendment, prohibits intentional discrimination. But Section 2 of the VRA (not to be confused with Section 2 of the Fifteenth Amendment) is an "effects" based test, that does not require any showing of intentionality.

Perhaps at some point in the past, Section 2 was a "congruent and proportional" response to the state of voting rights in the United States. Maybe that was even true when Gingles v. Thornburg was decided in 1986. But times have changed. Is there still a "congruence and proportionality" in 2025? I think it is worth noting that Gingles was decided a decade before Boerne. Then again, Boerne contrasted RFRA with the VRA, which had been upheld in Katzenbach.

The application of Borne to the VRA may give the Court a hook to "sunset" that provision, and rule that forcing the states to consider race when drawing maps may no longer be appropriate. Grutter gave the use of race a 25-year sunset clock. Gingles has had an even longer run.

Justice Barrett suggested that Gingles does not need to be "modified" but instead might be "clarified." The Court did just that with another Burger Court precedent. In Groff v. DeJoy (2023), the Court completely rewrote how TWA v. Hardison had been interpreted on the ground for five decades. And that was done to save the precedent from being overruled. Gingles may meet a similar fate. And yet another Burger Court precedent will bite the dust. (In fairness to co-blogger Paul Cassell, CJ Burger only concurred in the judgment in Gingles, which was decided during his final week on the Court.)

The Constitution allows Congress to vest the appointment power of inferior officers in the heads of departments. Can the department head then delegate that power to someone else in the department?

In 2005, the Office of Legal Counsel stated that the issue was unsettled:

Third, you have asked whether the prohibition in the draft order that prevents the Secretary of Defense from reassigning appointment authority to a subordinate is constitutionally compelled. The question whether Congress may permit the President or the head of a department to delegate appointment authority to an officer below the head of a department is a difficult one, and we cannot provide a definitive answer at this time. As noted, delegation clearly is not to be permitted for officers requiring Senate confirmation. However, neither the Attorney General nor this Office has definitively answered the question with respect to inferior officers who do not require Senate consent.

The Department of Justice has now provided a definitive answer. In the Third Circuit, there is ongoing litigation about whether Alina Habba can properly serve as Attorney General. Yesterday, a brief was filed by the Attorney General, the Deputy Attorney General, and others. I think this brief clearly represents the institutional position of the Department of Justice.

The brief squarely settles that the power to appoint inferior officers cannot be delegated:

The difference between acting service and delegated functions would still have significance for many other PAS officials under the FVRA. For example, because the power to appoint inferior officers is a non-delegable function constitutionally vested in an agency head, Lucia v. Securities and Exchange Commission, 585 U.S. 237, 244 (2018), an Acting Attorney General may appoint inferior officers under the FVRA, but an individual who has merely been delegated the Attorney General's powers under 28 U.S.C. § 510 may not; it would make no sense, however, to leap from that proposition to the defendants' conclusion that the FVRA also atextually preempts delegations that are valid under § 510.

Under 28 CFR §§ 0.15(b)(1)(ii), the Attorney General has delegated to the Deputy Attorney General, as well as the Associate Attorney Generals, the power to appoint certain positions. In light of the brief, these positions could not be considered inferior officers. Rather, at most, they must be "employees" of the United States. And per Buckley, these employees could not exercise "significant authority."

I'll need to chew on this matter a bit more.

I blogged previously about the role and ethics of AI use in the online dating communication context. The Guardian published over the weekend a piece discussing the proliferation of this practice. One of the problems it highlights is the mismatch that individuals encounter between who they thought they were texting and the person that shows up on a date and is significantly less articulate or attuned. In that sense and on average, it likely makes online dating (as well as getting to know each other via texting generally) an even less efficient process than already.

Some of the uses of AI mentioned in the interviews conducted for the Guardian article lean toward the comical, such as this one:

As 32-year-old Rich points out, though, "it's not like using ChatGPT guarantees success". When he met someone in a bar one Friday night and swapped social media handles, he asked AI what his next move should be. ChatGPT discerned that sending an initial message on Monday midmorning would set the right pace. "Then it gave me some options for what the message could be," says Rich. "Keep it light, warm, and low-stakes so it reads as genuine interest without urgency," the bot advised. "Something like: Hey Sarah, still laughing about [tiny shared moment/reference if you've got one] – good to meet you!" Rich went back and forth with ChatGPT until he felt they'd hit upon exactly the right message ("Hey Sarah, it was lovely to meet you") but sadly she never replied, he says. "It's been two weeks now."

Rather shocking that such a witty line wasn't an instant winner (though to be fair, whatever happened before that probably left a negative or lukewarm impression enough not to inspire desire for another meeting likely couldn't be overcome by ChatGPT anyway…).

Some other AI uses, however, bring up heavier subjects, such as here:

Still, there was one date that pricked his conscience. He was doing the usual copy-and-paste, letting ChatGPT do the heavy lifting, "when a girl started talking about how she'd had a bereavement in her family". ChatGPT navigated her grief with composure, synthesising the kind of sympathy that made Jamil seem like a model of emotional literacy. "It said something like, 'I'm so sorry you're going through this, it must be really difficult – thank you for trusting me with it,'" Jamil recalls. When he met the girl in real life, she noted how supportive he'd been in his messages. "I felt bad – I think that was the only time I thought it was kind of dishonest. I didn't tell her I'd used ChatGPT but I really tried to message her myself after that."

In this kind of setting, ethically speaking, motive matters. Was Jamil mainly being lazy, manipulative, or just insecure about how to approach the situation and thought ChatGPT would help him to do right by his interlocutor's grief? There's no way to know from a brief journalistic set of quotations, but it brings us closer to one of the central guidelines about when use of AI may be acceptable.

At the heart of it, it may come down to the Platinum Rule, which is to treat others the way one believes that they would want to be treated. And in a situation of bereavement, most people would probably not find it acceptable for someone to use AI out of laziness but would at least tolerate it if it was done in a good-faith attempt to comfort in an appropriate tone. Whether the behavior fell into column A versus B is likely to reveal itself once in-person interactions begin or intensify. It is fair to say, however, that the existence of modern AI tools has made it more key than ever to place a lot less stock in what people (now potentially more assisted by technology than previously) say as opposed to what they do.

The Heritage Guide to the Constitution is my fifth book. Like with my previous publications, I did everything in my power to eliminate typos and other errors before publication. And, like in the past, as soon as the book is sent to the printers, I discover more typos and errors. Finally, like in the past, as soon as Amazon ships the book, people start writing to me with errors.

I already compiled an errata list. We will make these changes for the second printing, and the online edition (stay tuned).

If you happen to spot an error, please email me: josh-at-joshblackman.com.

Yesterday, the New York Times published an article, titled Originalist 'Bombshell' Complicates Case on Trump's Power to Fire Officials. Adam Liptak highlights a new essay by UVA Law Professor Caleb Nelson that casts doubt on the claim that the Article II Vesting Clause includes a removal power.

Nelson did not say anything particularly novel in this 3,000 word essay. Indeed, he cites the work of scholars like Jed Shugerman and Julian Davis Mortenson who have written hundreds of pages on this issue in recent years.

So why did Nelson warrant a glowing profile in the newspaper of record? Simple: a law professor with conservative credentials opposed conservative jurisprudence. Here, a Thomas clerk published a short essay that bucks the conventional wisdom on the right. Will Baude hailed the essay on BlueSky as a "bombshell." I think it is fitting that the Times quoted Baude's announcement, as he was the subject of a similarly positive NYT piece by Adam Liptak in 2023.

Barely two years ago, Will and his co-author, Michael Stokes Paulsen wrote a 150-page article arguing that Donald Trump was unquestionably disqualified by the presidency under Section 3. (Seth Barrett Tillman and I were on the other side of that debate.) In the wake of January 6, there were many scholars who had written that Trump was disqualified. But what made the Baude/Paulsen article stand out was their conservative credentials. Baude, in particular, had clerked for Chief Justice Roberts.

I think there is something of a pattern. The mainstream media will elevate originalism when it bucks conservative orthodoxies. But when originalism unquestionably supports a conservative position, it is described as fringe and radical.

Ultimately, I'm not sure that Nelson's article moves the needle, at all. I don't need to remind everyone that the Baude and Paulsen position received zero votes at the Supreme Court. Justice Thomas made up his mind about Humphrey's Executor a long time ago. He stated the issue plainly in Seila Law.

I don't think Justice Thomas will wake up and say, "my goodness, because of a 3,000 word essay by a law professor I hired three decades ago, I have to radically alter everything I think about the separation of powers." A former Thomas clerk once told me a story of how he tried to persuade the boss that he was wrong about some case. Thomas sat patiently and listened as the clerk presented his argument. After the clerk was done, Thomas said he felt even more convinced that his initial position was correct.

I think it far more likely that Thomas cites, and continues to cite, another former clerk who is also on the University of Virginia faculty: Sai Prakash. Indeed, Thomas cited Prakash in Seila Law:

1 For a comprehensive review of the Decision of 1789, see Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006).

Why is it that Prakash, whose credentials are very close to those of Nelson, doesn't even merit a mention by the Times? Prakash has been engaging in a lengthy debate with Mortensen and Shugerman on this issue. Indeed, Prakash co-authored an article with another member of the UVA faculty, Aditya Bamzai, in the Harvard Law Review.

Still, all the focus now is on Nelson, who wrote a short essay. If you read down to the last paragraph of Nelsons piece, you will see how tentative the claim is:

I am an originalist, and if the original meaning of the Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes.  But both the text and the history of Article II are far more equivocal than the current Court has been suggesting.  In the face of such ambiguities, I hope that the Justices will not act as if their hands are tied and they cannot consider any consequences of the interpretations that they choose.

This is not exactly lion-hearted originalism. It isn't even faint-hearted originalism. Call it "inclined-to-be" originalism?

Ultimately, I think this new entry to the field will not be a bombshell, but will be a dud.