Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
I'm much looking forward to it!
You can see the live blog at https://www.scotusblog.com/; the opinions will start coming down shortly after 10 am Eastern, but I'll be on for a pre-opinion conversation at 9:30 am. I have no idea what opinions will come down today, of course, but it should be interesting.
This one claims that the Trump Administration's deregulatory efforts violate the Fifth Amendment.
Last month, environmental activists filed suit against the Trump Administration on behalf of 22 youth alleging that President Trump's various Executive Orders calling for environmental deregulation and the encouragement of energy production are unconstitutional. Specifically the complaint in Lighthiser v. Trump alleges that Trump's energy-related EOs "violate the Fifth Amendment substantive due process clause on their face by depriving Plaintiffs of their fundamental rights to life and liberty and are ultra vires in assuming powers reserved to and exercised by Congress through Article I."
This suit, much like prior "kids climate" cases alleging a judicially enforceable federal constitutional right to climate action, is unlikely to go anywhere (favorable press coverage notwithstanding). There is simply no basis in existing law upon which to claim that there is a fundamental constitutional right to environmental protection and that federal actions encouraging fossil fuel use are subject to strict scrutiny. However rhetorically powerful such claims may be, they represent a profound break from the country's constitutional tradition and cut against contemporary doctrine. Moreover, this case was filed in the Ninth Circuit, where similar claims have already been found to be nonjusticiable. (State-law based constitutional claims, on the other hand, can present different questions.)
Perhaps aware that the constitutional claims face tough sledding, the Lighthiser plaintiffs also seek to argue that various actions called for in Trump's EOs are ultra vires or otherwise beyond the scope of the President's authority or contrary to existing statutes. Including such claims does not help the plaintiffs challenge the EOs themselves, as the EOs do not purport to command any federal action that is inconsistent with law. There is a chance, however, that some specific claims against specific agency actions could proceed, provided the plaintiffs are able to demonstrate standing. Yet insofar as two other youth plaintiff climate suits have foundered on standing grounds, the outlook for this suit is bleak as well.
As with the prior kids climate suits, Lighthiser v. Trump seems aimed more at the court of public opinion than it is the courts of law.
Prior posts discussing Juliana and the other kids climate cases can be found here.
6/18/1787: Alexander Hamilton introduces his plan to the Constitutional Convention.
As I noted at the time, I was surprised how well she did. I wish we could see more of nominee Barrett.
Co-Blogger Jon Adler flashes back to two posts I wrote during and after Barrett's confirmation process in 2020. He suggests that I singing a different tune today than I did five years ago. I think if you read between the lines, you'll see a different message.
To state the obvious, Justice Barrett's performance at her hearing was masterful. Her performance was at the level of Chief Justice Roberts's. This is one area where the law professor mentality served her quite well.
My expectations going into the hearing were not high. Privately I expressed concerns about her to colleagues. I talked to many people who assured me that she would be solid. Yet as I watched the proceedings, I was truly impressed. Indeed, I was guardedly optimistic about what she might accomplish when confirmed.
But more importantly, I was surprised at how well she did. Indeed, her testimony alleviated some of my concerns.
In one post, I wrote, "She continues to impress me in ways that I frankly hadn't expected." In another post, I wrote, "She made a connection that I hadn't expected to experience." I suggested that she might one day fill Justice Scalia's shoes! I wondered if she would connect with the American people. Perhaps she could become an icon for originalism. None of these things have happened.
I wish we would see more of the ACB from the hearing. There is still hope. Longtime readers will recall my coverage of Justice Kavanaugh was quite harsh for some time. But, in candor, I've had a lot less to object to of late. With a few exceptions, he isn't doing the sorts of things that troubled me. There is always hope for tomorrow.
The symposium has now concluded.
The Liberty Fund symposium on "The Legacy of David Boaz" - prominent libertarian thinker and longtime Cato Institute leader - has now concluded. There were initial essays by five participants - Andy Craig, Tarnell S. Brown, Aaron Powell, Jonathan Blanks, and myself. Each participant has now also posted two response essays. My final response essay is entitled "The Nationalist Threat to Liberty." Here is an excerpt:
Once again, I have few disagreements with the other contributors to the symposium. So I will take this opportunity to draw out a few common themes, and their implications. As before, a common theme of the various contributions is the need to extend liberty to all, without arbitrary exclusions based on factors like race, immigrant status, gender, sexual orientation, and the like.
In one of his response essays, Tarnell Brown mentions the Marquis de Lafayette as an example of the cosmopolitan nature of the struggle for liberty, and how immigrants and foreign allies contributed to the founding and growth of America. It's worth noting that, in addition to fighting for liberty in the American Revolution, Lafayette was also a longtime advocate of the abolition of slavery who unsuccessfully urged George Washington and other Founding Fathers to do more for that cause. Lafayette understood that liberty must be extended to all, regardless of race and ancestry. So should we.
Another, at least implicit, common theme, is the menace to liberty posed by the resurgence of illiberal and authoritarian nationalism. This is most obviously true in the cases of nativist and xenophobic attacks on immigration and trade, and Vladimir Putin's war of aggression against Ukraine (motivated primarily by Russian nationalist imperialism)….
Nationalism obviously threatens liberty by restricting the range of people allowed to enjoy it. It also imperils freedom by promoting government central planning of the economy, through a combination of protectionism (as with Donald Trump's massive new trade war), immigration restrictions, and industrial policy. In these respects, nationalism is – as my Cato Institute colleague Alex Nowrasteh and I explained in "The Case Against Nationalism," – very similar to libertarians' other traditional rival: socialism. As Alex likes to put it, nationalism is socialism with more flags….
Libertarians of my generation… and even more so those of David Boaz's generation, came of age in a world where socialism and the progressive left more generally were the greatest threats to liberty. It may be psychologically difficult for some to adjust to the new reality where the greatest threat to our values now comes from the political right, in the form of nationalism. That adjustment may be especially painful for those most emotionally attached to the old "fusionist" alliance between libertarians and conservatives. But adjust we must.
Later in the piece, I note that recognizing nationalism as the greatest current threat to liberty does not imply an uncritical attitude towards the left:
David [Boaz] also understood that addressing the danger from the right doesn't entail blinding ourselves to the flaws of the left. The "democratic socialism" popular on the extreme left wing of the Democratic Party and in some European nations remains dangerous, sharing many of the flaws of its authoritarian counterparts. It is, today, less widespread – and thus less immediately threatening – than right-wing nationalism. But that could change.
David Boaz knew that libertarians must be alert to dangers to liberty from both right and left, and that we should strive to avoid becoming too emotionally attached to either side of the conventional political spectrum, even though tactical alliances on particular issues are often useful. On this, and much else, we should learn from his example.
My other contributions to the symposium are "David Boaz on Immigration" (initial essay) and "Liberal Universalism and the Menace of Nationalism" (first response essay). Other participant's contributions are available at the Liberty Fund site here.
Perceptions of Amy Coney Barrett may have changed more than her jurisprudence or voting record.
Sunday's New York Times featured an extensive profile of Justice Amy Coney Barrett. The article contained one interesting tidbit about the PennEast case. Otherwise the article offered relatively little that was new. It did, however, provide plenty of material for the gristmill.
A key portion of the article summarizes a preliminary analysis of Justice Barrett's voting record over her first three-and-a-half terms on the Court. That's not much to go on, but it allows for the editors to include some pretty graphs and provides the basis for over-confident assessments of trends in Justice Barrett's jurisprudence.
As longtime readers know, I believe Court watchers place too much weight on individual terms, none of which (in isolation) is ever representative of the Court's overall work. Over time we often see significant vacillation in the percentage of cases decided by any particular margin and rate at which particular justices agree with each other or join the majority. In OT2022 over 45 percent of the Court's decisions were unanimous. Yet only one year before the percentage of unanimous opinions was only 29 percent. The only thing that really changed between these terms was the Court's mix of cases.
The unrepresentative nature of individual terms is only increasing as the Court's docket shrinks, and this magnifies the problem of analyzing voting patterns. If the Court hears only 60 cases or so, and most of the cases are decided unanimously or by an overwhelming majority, a handful of cases can produce dramatic swings. This means we should be circumspect about looking at a few terms and declaring the existence of a definitive trend.
The problems are compounded if one is trying to assess how "liberal" or "conservative" a justice is, particularly insofar as the change in the Court's composition has changed the composition of the Court's docket, both because of what cases the justices choose to hear and because of what questions advocates are willing to put before the Court.
All this is a long way of saying I am skeptical of any claims that Justice Barrett is "drifting" to the left, or that we have seen any discernible shift in her voting pattern to date. The idea that a justice who joined the Court's majorities in Dobbs, Sackett, SFFA, 303 Creative, Cedar Point, Kennedy, West Virginia v. EPA, Biden v. Nebraska, Corner Post, Loper Bright Enterprises, and Jarkesy (just to name a few) is anything but a solidly conservative justice defies comprehension. That Justice Barrett did not join the dissenters in cases such as California v. Texas is more a sign of clear thinking than of lack of courage, and it's hard for me to get worked up over a justice's failure to rubber stamp every emergency docket filing by the Trump Administration.
My co-blogger Josh Blackman does not seem to share these reservations. In a lengthy post, "See, I Told You So About Justice Barrett," he dons the mantle of Cassandra and suggests that Kantor's article confirms his predictions of doom from Barrett's elevation to the Court. But I am not sure the article confirms Blackman's predictions so much as it provides fodder to feed his current grievances.
Back in 2020 when Justice Barrett was facing confirmation, Blackman was not suggesting she would be a disaster on the Court. Quite to the contrary, he lavished her with praise.
In an October 2020 post about her confirmation hearings, "The Naturalness of ACB," he wrote:
I am eager to see Justice Barrett hit the speaking circuit, and make her vision of the law accessible to the masses. She has the rare combination of personality and intellect, which will allow her to bring the Constitution to the people. But--and here is the huge but--I think Judge Barrett may have the humility and modesty to prevent that rock-star status from going to her head. Fame affected both Scalia and Ginsburg in a bad way. I hope ACB can resist the siren call. . . .
she is really, really well-versed in constitutional doctrine. She readily talked about "external constraints" on federal power. She recognized that you cannot talk about Brown v. Board of Education without also talking about Cooper v. Aaron. . . She refused to indulge in the myth of judicial supremacy, and referenced Ex Parte Merryman. . . . She casually explained that Section 2 of the 14th Amendment permits disenfranchisement of felons but the Second Amendment has no such constraint. We have to keep in mind that ACB has been a constitutional law professor for some time. She speaks our language. I think Justices Gorsuch and Kavanaugh have a deep familiarity with these doctrines. They were raised in our legal culture. But ACB has internalized it through years of scholarship. For her, it is natural.
I honestly did not think I would praising a nominee in this fashion. I really didn't. I hadn't planned to even watch the proceedings. I've long considered the hearings to be a vapid ritual--meaningless Kabuki theater. But ACB drew me in. She made a connection that I hadn't expected to experience. I think even the Democratic Senators saw that connection. And so will the American people.
And in a follow up post on her swearing in he added:
She continues to impress me in ways that I frankly hadn't expected. There is a sincerity behind every word that really resonates. . . .
you can tell that the confirmation process actually made an impact on her. No, not in the sense of the Thomas and Kavanaugh hearings, where the Justices were forever scarred by the process. Rather, she witnessed first hand how many of the Senators were concerned primarily, if not exclusively with policy outcomes. The overwhelming majority of questions asked ACB about her views different social issues, such as abortion, gay rights, etc. At each juncture, Judge Barrett refused to answer those questions. Critics thought she was evasive. But she truly did not think her own views would be relevant. During her remarks, Justice Barrett used this experience to highlight the dichotomy between senators and judges. Senators are duty-bound to follow their preferences. But "it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them." . . .
No matter how many new seat are added to the Court, Justice Barrett will still loom large over the others. Her greatest contribution will be to enrich our constitutional culture. I mean that sincerely. She has the charisma and presence to elevate legal discourse to the next level. And I think she will inspire generations of conservative women to aspire to greatness, without eschewing their beliefs. With time, she may even be able be able to fill the titanic void left by Justice Scalia.
I can't wait till she gets started.
As readers may suspect, I do not believe Justice Barrett was a poor choice for the Court. Quite to the contrary, I think she has distinguished herself as a careful, thoughtful jurist who provides a distinct, welcome, and powerful voice on the Court. I do not always agree with her, particularly in environmental cases (such as Ohio v. EPA and San Francisco v. EPA), but I have tended to find most of her writings quite persuasive. Where I think she has gotten things wrong, I do not attribute it to a lack of "courage," but to genuine jurisprudential disagreement.
All that said, I would discourage making any sweeping judgements about a justice who has not even sat on the Court for a full five terms. Justice Barrett will be on the Court for many years to come, and we will have ample time to analyze her jurisprudence. It's a bit premature to look upon her works and despair. Indeed, I am not sure such a time will ever come.
UPDATES: Josh Blackman has replied here. I'll just note that the whole point of the Cassandra myth is that she was given foresight but that no one heeds her warnings. It's a bit hard to be a Cassandra if one is not issuing warnings before calamitous events occur.
On the broader substantive question, the June 18 opinion announcements add to our knowledge about Justice Barrett. In four of the five decisions, she aligned completely with Justice Thomas. She wrote a separate concurrence in Skrmetti (joined by Justice Thomas) clearly resolving the constitutional question the Chief Justice's majority avoided. She dissented in Perttu (joined by Justices Thomas, Alito, and Kavanaugh), objecting to the Chief Justice's decision expanding jury trial rights in prisoners' rights litigation under the PLRA. These decisions (and more to come this term) are likely to have a significant effect on this term's overall stats and any purported trends.
It is part of the Yale Journal on Regulation Symposium on the 20th Anniversary of Kelo v. City of New London.
The twentieth anniversary of Kelo v. City of New London is coming up on June 23. Kelo is the controversial Supreme Court decision which held that privately owned "economic development" was enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." The Yale Journal on Regulation has a symposium forthcoming on the anniversary. My contribution, entitled "Public Use, Exclusionary Zoning, and Democracy," is now available for free download on SSRN. Here is the abstract:
The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the "public use" issue at stake in that case, and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. In the twenty years since Kelo, exclusionary zoning and the housing crisis it has caused have emerged as major issues in public policy and legal debate. Kelo famously ruled that the Fifth Amendment requirement that takings must be for a "public use" does not bar the employment of eminent domain to take homes for privately owned "economic development." The Court endorsed a broad definition of "public use" that included almost any disposition of condemned property that might benefit the public in some way. Exclusionary zoning – defined here as regulatory restrictions on the types of housing that can be built in a given area - is a major factor in the national housing crisis, that has increased housing costs, prevented millions of people from "moving to opportunity," and impaired economic growth and innovation. opportunities. There are striking and largely unnoticed parallels between the "public use" question decided in Kelo and the constitutional issues raised by exclusionary zoning.
Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question – private-to-private condemnations in one case, exclusionary zoning in the other – violate the property rights provisions of the Fifth Amendment. The former violates the requirement that the use of eminent domain be for a "public use;" the latter that severe restrictions on owners' rights to use their land require "just compensation" under the Takings Clause. But, in both cases, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal-era skepticism of property rights. That skepticism was in large part driven by concerns that judicial protection for property rights is undemocratic, inhibits government planning, and tends to benefit the rich at the expense of the poor and disadvantaged.
Part II outlines ways in which the traditional conventional wisdom on these two issues is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further "representation-reinforcement" in two ways: by giving voice to groups excluded from the political process, and by empowering them to "vote with their feet."
Part III briefly highlights some synergies between judicial enforcement of public use limitations on eminent domain, and enforcement of restrictions on exclusionary zoning. Both help empower people to live where they wish. Striking down exclusionary zoning would make it harder for local governments to keep people out; Reversing Kelo would make it harder for them to expel those already living in the area. Opponents of exclusionary zoning could also potentially learn useful lessons from the Kelo experience on how litigation can be effectively combined with political action.
The article builds in part on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. and also on my recent article "The Constitutional Case Against Exclusionary Zoning," 103 Texas Law Review 1 (2024) (with Joshua Braver).
A "classical lawyer's" take on what law skeptics within the New Right get right and get wrong.
Harvard law professor Adrian Vermeule has posted an interesting and worthwhile essay at The New Digest responding to the growth of law-skepticism among some in the New Right (and, in particular though he does not say it, among many MAGA thought-leaders). While I do not share Vermeule's perspective, the essay is a worthwhile read. A few excerpts:
On one level, it is perfectly understandable that many on the New Right have veered towards versions of law-skepticism. It is a natural overcorrection to the world around them, one in which the fanatics and cynics of liberalism appropriate the "rule of law" for transparently ideological, sectarian and indeed partisan ends. In that world, our world, talk of "the rule of law" and "human rights" becomes a vehicle for enforcing grotesqueries of the liberal programme, as in a notorious USAID document during the Biden years that said the rule of law requires adopting gender ideology. In that world, our world, prominent law professors openly thirst to crush dissenters from legal liberalism, comparing them to the defeated Nazis. When told by both the legal left and by legal conservatives that authority in the sense of positive will, not truth, makes the law, and that law only ever enforces the will of some sovereign upon others, it is perfectly understandable for the New Right to think: "Very well then. Let us become the sovereign, and we will enforce our will upon our enemies, doing unto them what they have been doing unto us for years." If, as Carl Schmitt said,2 law under liberalism becomes a poisoned dagger with which factions stab each other in the back, it is not hard to think: better to be the one wielding the dagger.
However understandable, this attitude is indeed an over-correction. Finding themselves in a situation of tragic conflict in which the law has been corrupted by both the legal left and by legal conservatism in fundamentally similar ways, the New Right law-skeptics erroneously infer that there is no such thing as law at all, or at least that all law is just the expression of power. This is a non sequitur, akin to saying that if I discover that the judge before whom I appear has corruptly taken bribes from the opposing party, therefore there is not and never has been such a thing as honest judging. The New Right law-skeptics erroneously over-generalize, deriving speculative theoretical views from the grim realities of the unusual practical situation in which they find themselves. . . .
A long preview is now available on Youtube.
I've blogged a few times about my new book, The Digital Fourth Amendment: Privacy and Policing in Our Online World. I've also mentioned that there's now an audiobook version available. I'm happy to say that the first hour of the audiobook is now available for a free listen anytime over at Youtube via Google Play Books.
The first 90 seconds or so is a legal warning that the audiobook publisher added, but the book itself starts right after that. If you want to hear or read the rest, you can buy the hardcover book here, a Kindle/electronic version here (among other places), or the full audiobook here (among other places).
Check it the one-hour free audio preview here:
Matthew Finkin dissects how the American Association of University Professors has abandoned a principle defense of academic freedom.
Professor Matthew Finkin has published "The Unraveling of the AAUP," a pointed critique of the American Association of University Professors in the Chronicle of Higher Education. The essay, adapted form a longer paper, explains how the AAUP's change in its positions on academic boycotts and embrace of DEI statements in academic hiring betray its longstanding principles and undermine its purported commitment to academic freedom.
From the essay:
From its founding in 1915, the AAUP has gained the respect of the academic community and of the judiciary in explicating the meaning and application of academic freedom and tenure. Its work has had a significant impact on both. Its credibility has been earned by the consistent adherence to principle uninfluenced by exogenous policies or organizational ends, and by the sheer quality of its work. The latter was captured a half century ago by Judge J. Skelly Wright, who noted the "thoroughness and scrupulous care" in the AAUP documents placed before the court.
Recent actions have departed from these standards — and radically. The AAUP, acting through its Committee A on Academic Freedom and Tenure, has, first, abandoned its prior position that systematic participation in the boycott of Israeli universities could threaten academic freedom and, second, declared that adherence to diversity, equity, and inclusion (DEI) dictates as a condition of faculty retention can be consistent with academic freedom. These actions reveal a body now driven by considerations other than fidelity to principle. As a result, the deep well of communal respect has been drained dry; the AAUP's credibility has been destroyed.
The balance of the essay explains, in some detail, how the AAUP has departed from its own prior positions, without meaningful explanation, and is allowing contemporary political considerations to trump principles of academic freedom.
In closing, Finkin notes that the AAUP will likely defend university policies consistent with its new position, without regard for what the AAUP used to stand for. In such an instance, Finkin notes, the proper response would be to say to the AAUP: "You are the successor in title, but no longer in principle, spirit, or scrupulous care."
Houston Chronicle (R.A. Schuetz) reported yesterday:
In a lawsuit over whether a woman should have lost her housing subsidy, the Houston Housing Authority's lawyer asked a judge not to force the agency to prevent the woman's eviction while the case was being decided. The brief, submitted by a law firm that frequently represents cities and agencies in the Houston area, cited over a dozen cases in support of its argument.
The only problem? Almost none of the quotes actually exist, a Chronicle analysis shows….
The firm's managing attorney "said in an email that because the court required the brief to be filed within a short timeframe, the quick turnaround 'prevented our usual multi-attorney review.'"
But he did not address why 11 of the 13 cases directly quoted did not actually contain those quotes or why many did not seem related to what his firm had quoted them as saying. He also did not respond when asked if artificial intelligence, which is known to "hallucinate," or say things that are not true, had been used to draft the brief.
6/17/1963: Sherbert v. Verner is decided.
What's on your mind?
Brief argues that no “militaristic” arm exception exists.
The United States has filed an amicus brief in Barnett v. Raoul, the challenge to Illinois' ban on semiautomatic rifles and standard magazines pending in the Seventh Circuit. This is the first time the Department of Justice has ever argued against such a ban. It defended the federal ban that was enacted in 1994 and expired in 2004.
As the brief recalls, in Bruen (2022) the Supreme Court emphatically reinforced the Heller rule that the Second Amendment protects firearms in common use by law-abiding persons for lawful purposes. "Regrettably, not every State got the message. Just a few months after Bruen, Illinois outlawed some of the most commonly used rifles and magazines in America via a so-called 'assault weapons' ban." And after that, in Bevis v. City of Naperville, the Seventh Circuit overturned the district court's preliminary injunction against enforcement of the ban on the basis that the plaintiffs were unlikely to prevail.
As the United States argues, Bevis got it wrong even under pre-Bruen precedents. Thereafter, multiple Supreme Court Justices have expressed disagreement with Bevis, and Justice Kavanaugh said that the Court is likely to grant certiorari "in the next Term or two." (See my post here.) Moreover, the district court in Barnett heard critical, unrebutted evidence in a multi-day bench trial and found that the ban violates the Second Amendment.
The brief covers familiar ground, but does condition some of its statements with an eye toward future defense of federal law. It says that "many" (not all) of the banned firearms, particularly the AR-15, are "Arms" under the Second Amendment, which per Heller "extends, prima facie, to all instruments that constitute bearable arms." For purposes of the brief, it does not challenge the district court's findings that .50 caliber rifles and pistols are not protected. (The district court was "not convinced that any law-abiding citizen would keep a .50 caliber sniper rifle at home for self-defense purposes," although that ignores militia use.) But the brief adds "cf." the Supreme Court's recent statement in Smith & Wesson Brands v. Estados Unidos Mexicanos that ".50 caliber sniper rifles . . . are both widely legal and bought by many ordinary consumers."
While in the future the Department of Justice will continue to be called upon to defend the restrictions of the National Firearms Act, the NFA's definition of a "destructive device" does not include .50 caliber (= one half inch) barreled firearms. It instead covers a weapon "the barrel or barrels of which have a bore of more than one-half inch in diameter," excluding shotguns found to be "particularly suitable for sporting purposes." The brief adds that "at least one type of weapon banned by the Act—grenade launchers—may not qualify as an 'Arm' because it is more like artillery or explosives." All of these items are within the NFA's definition of "destructive device."
The brief also touches on another NFA device, silencers, which Congress (with the apparent approval of the Administration) is currently seeking to remove from the NFA. (See my post here.) In explaining that the Illinois Act violates the Second Amendment by banning magazines that are in common use, the brief generalizes that "firearm attachments that are useful to the exercise of the right, including magazines, suppressors, and other firearm attachments" are protected. It references its recent Supplemental Response in United States v. Peterson arguing that "a complete ban on suppressors would be unconstitutional." That concession may assist in challenging state laws that totally ban suppressors. But the Response also argues that the NFA's tax and registration requirements survive Second Amendment scrutiny.
Most of DOJ's Barnett brief is devoted to the familiar theme that the banned rifles meet the Heller-Bruen common-use test. The district court's multi-day bench trial made extensive factual findings that are not clearly erroneous. If it wants to overturn these findings, the Seventh Circuit will have to engage in substantial judicial antics to reach a preconceived result.
There is one legal point on which the brief uniquely took issue with the Bevis claim that "militaristic" firearms are not even "Arms." It goes without saying that, lacking capacity for full auto, the semiautomatic AR-15 simply "is not a military weapon," which explains why no military force in the world issues it as a standard service arm. Textually, the Second Amendment's prefatory clause—"A well regulated Militia, being necessary to the security of a free State"— does not limit the scope of its operative clause. It protects arms both for individual self-defense and collective self-defense.
Historically, "the English and American people were the first line of defense from military invasion, insurrection or public unrest, and even government oppression." Precedents from the nineteenth and early-twentieth centuries confirm protection for possession of arms for the common defense. As Thomas Cooley wrote in The General Principles of Constitutional Law in the United States, "The arms intended by the Constitution are such as are suitable for the general defen[s]e of the community against invasion or oppression[.]"
The brief was signed by Chad Mizelle, Acting Associate Attorney General, and Harmeet K. Dhillon, Assistant Attorney General, Civil Rights Division.
From Judge Mary Kay Vyskocil's opinion today in American Association of University Professors & American Federation of Teachers v. U.S. Dep't of Justice (S.D.N.Y.):
[P]laintiffs seek a preliminary injunction requiring Defendants to pay out to non-party The Trustees of Columbia University in the City of New York … "approximately $400 million in federal grants and contracts to Columbia," funded by the American taxpayers, which several executive agencies recently terminated because, among other reasons, the grants and contracts "no longer effectuate[d] … agency priorities" and "for the convenience of the Government." Plaintiffs further seek to prospectively enjoin Defendants from terminating, "pausing," "or otherwise interfering with" more than $5 billion in active taxpayer-funded grants and contracts to Columbia. Conspicuously, Columbia, whose grants and contracts were terminated and whose funding is the subject of the relief Plaintiffs seek, is not a plaintiff.
With no apparent sense of irony, lawyers for an organization called "Protect Democracy" insist that a district court judge should order the Executive Branch immediately to restore the flow of taxpayer dollars to an elite university, which funding Defendants represent is inconsistent with the priorities of the duly elected President of the United States. Our democracy cannot very well function if individual judges issue extraordinary relief to every plaintiff who clamors to object to executive action. Neither the Executive Branch nor the Legislature ever awarded the grants and contracts at issue to Plaintiffs or any of their members. The funding that Plaintiffs ask this Court to commandeer was awarded to Columbia, which is conspicuously absent from this case. If any funds have been wrongfully withheld, such funds may be recovered at the end of a successful lawsuit by the appropriate plaintiff in an appropriate forum.
Plaintiffs lack standing to assert the claims they purport to allege in this case. They are inserting themselves into a quarrel between the Executive Branch and non-party Columbia, which, Plaintiffs' own submissions make clear, Columbia wishes to resolve cooperatively, and perhaps through administrative appeals, without resorting to litigation that might further imperil Columbia's resources and reputation. Indeed, Plaintiffs' and Columbia's different assessments of the litigation risks simply underscores that non-party Columbia is the party with "the personal stake in the litigation." This Court has no authority to opine on the legality of Executive Branch actions against an entity that is not a party to this case.
From the European Space Agency today, "Proba-3's first artificial solar eclipse":
This March, Proba-3 achieved what no other mission has before – its two spacecraft, the Coronagraph and the Occulter, flew 150 metres apart in perfect formation for several hours without any control from the ground.
While aligned, the pair maintain their relative position down to a single millimetre – an extraordinary feat enabled by a set of innovative navigation and positioning technologies.
Demonstrating the degree of precision achieved, the two spacecraft use their formation flying time to create artificial total solar eclipses in orbit – they align with the Sun so that the 1.4 m large disc carried by the Occulter spacecraft covers the bright disc of the Sun for the Coronagraph spacecraft, casting a shadow of 8 cm across onto its optical instrument, ASPIICS.
And here's the actual corona, with the full occulting:
Justice Barrett compares the Constitution to Odysseus. But I feel like Cassandra.
Jodi Kantor published a detailed expose about Justice Barrett. Very little here surprises me. I've laid out the case many times. Based on Barrett's record, she should have never been nominated for the Seventh Circuit, she should have never been put on the Supreme Court "short list" before she decided a case, she should have never been a finalist for Justice Kennedy's seat barely a year into her tenure on the Seventh Circuit, and she should have never been elevated to Justice Ginsburg's seat with so much unknown about her. Yet, all the while, people who held important positions in the conservative legal movement assured us that Barrett was "solid." They could point to nothing tangible to make this case, other than their personal connections with Barrett, her academic credentials, and her Scalia clerkship. In the end, Kantor writes, President Trump picked the candidate he thought would help him get re-elected.
As President Trump was leaning toward appointing Amy Coney Barrett to the Supreme Court five years ago, some advisers shared doubts about whether she was conservative enough. But he waved them away, according to someone familiar with the discussions. He wanted a nominee religious conservatives would applaud, and with an election approaching, he was up against the clock.
Justice Barrett is who she is. I think it is a mistake to say she is "drifting," since she really didn't have a starting place for jurisprudence. She is figuring things out as she goes along. So it is hard to blame Justice Barrett for doing what was entirely predictable. Indeed, I think Barrett is doing exactly what an untested and inexperienced law professor would do if elevated to the Supreme Court. Truly, I don't blame her. People misunderstand my criticism of Justice Barrett.
Other than some members of the Scalia clerk family, Barrett's biggest defenders are in the academy. It's hard to blame law professors--especially those who were friends with Barrett before she was nominated. Moreover, when law professors defend Justice Barrett, they are not merely defending ACB. They are defending their own guild--the notion that a law professor can be the ideal type of judge.
Finally, the blame should not lie with President Trump. He made the best decision he could based on the names put before him. It's not the President's job to vet the pool of Supreme Court nominees. I think he is already experiencing buyer's remorse.
So who bears the blame? The blame should lie with those who pushed Barrett forward at every stage of the process. Despite everything we learned from the Roberts and Souter nominations, people just wanted to believe Barrett would be something she is not. And we will pay the price for that hubris for decades to come.
Kantor quotes Barrett who drew an analogy between the Constitution and Odysseus.
In classroom lectures, she used to say that the country had bound itself to the Constitution the way Odysseus had tied himself to the mast of his ship, to resist whatever political sirens swam up.
To continue the mythological theme, I feel like Cassandra. I predict what will happen, but no one will listen to me. Maybe that will change.
Let's walk through the details from the Times.
The Fifth Circuit hands down a highly fact-specific decision in a Second Amendment challenge to a federal law.
From U.S. v. Allam, decided today by Fifth Circuit Judge Cory Wilson, joined by Judges James Graves and Stephen Higginson:
In August 2022, Allam embarked on a road trip in his father's SUV from his home in Brooklyn, New York. By early January 2023, he pulled into Beaumont, Texas, via a circuitous, cross-country route. By the time he arrived in Texas, he possessed an AR-15-style rifle that he had purchased along the way in Pennsylvania. Since leaving New York, he had also been living in the SUV; he continued to do so while he was in Texas.
In Beaumont, Allam began parking his SUV for extended periods next to St. Anthony Cathedral Basilica School, a private school for students from pre-kindergarten through 8th grade. The Beaumont Police Department (BPD) was first alerted to his presence near the school on January 5. When approached by a BPD officer and asked if he had any guns or weapons, Allam replied that he did not. After being advised to park elsewhere, Allam was sighted in the following days near the Beaumont Civic Center and in front of a nearby Jewish synagogue for extended periods, prompting synagogue members to call BPD repeatedly.
Allam returned to the vicinity of St. Anthony around January 22 and remained parked next to the school almost continually, causing "fear and concern" among the school community. Attempts by teachers, BPD, and members of the public to get Allam to leave were unsuccessful. Due to Allam's presence, the school "stopped having any type of outside … activity," including "softball[,] … cheerlead[ing,] … [and] recess," and the school prohibited students from "walking between classes outside."
On Sunday afternoon, January 29, a school parent confronted Allam, who was sitting in his SUV parked adjacent to the school, and asked him to leave the area. Allam responded that he had a "mission" and that no one would ever see him again after Monday. Alarmed by Allam's ominous statement and based on a strong suspicion that Allam possessed a gun, the parent immediately prompted BPD to post an officer near Allam's SUV. Later that Sunday, when Allam began to drive the SUV from its parked location, the officer stopped him for various alleged traffic violations. When Allam refused to comply with the officer's instructions, he was arrested. In Allam's car, the police discovered the rifle, 150 rounds of ammunition, and a loaded thirty-round magazine.
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