"[A] credentialed expert on the dangers of AI and misinformation, has fallen victim to the siren call of relying too heavily on AI—in a case that revolves around the dangers of AI, no less."
Minnesota law prohibits, under certain circumstances, the dissemination of "deepfakes" with the intent to injure a political candidate or influence the result of an election. Plaintiffs challenge the statute on First Amendment grounds and seek preliminary injunctive relief prohibiting its enforcement.
With his responsive memorandum in opposition to Plaintiffs' preliminary-injunction motion, Attorney General Ellison submitted two expert declarations … [including one] from Jeff Hancock, Professor of Communication at Stanford University and Director of the Stanford Social Media Lab. The declarations generally offer background about artificial intelligence ("AI"), deepfakes, and the dangers of deepfakes to free speech and democracy….
Attorney General Ellison concedes that Professor Hancock included citations to two non-existent academic articles and incorrectly cited the authors of a third article. Professor Hancock admits that he used GPT-4o to assist him in drafting his declaration but, in reviewing the declaration, failed to discern that GPT-4o generated fake citations to academic articles.
In Becerra v. Braidwood Management, the Court will consider yet another constitutional challenge to an element of the Affordable Care Act, in particular the manner in which the government identifies preventative treatments that must be covered by health insurers without cost to the insured. The specific question presented is:
Whether the U.S. Court of Appeals for the 5th Circuit erred in holding that the structure of the U.S. Preventive Services Task Force violates the Constitution's appointments clause and in declining to sever the statutory provision that it found to unduly insulate the task force from the Health & Human Services secretary's supervision.
Of note, the Court took no action on the cross-petition in this case, which had raised a different (but no less interesting) question presented:
Whether the Affordable Care Act violates the nondelegation doctrine by empowering agencies to unilaterally decree the preventive care that private health insurers must cover, while failing to provide an "intelligible principle" to guide the discretion of those agencies.
Once again, the Court appears to be showing that, however much it likes administrative law cases that raise separation of powers questions, it is not particularly eager to confront nondelegation arguments. On the other hand, the Court could simply be holding this question for resolution of the FCC universal service fee case, which also raises nondelegation issues.
Today Judge Merchan issued a sentence against President-Elect Trump, and presumably created a final appealable judgment. But could he?
President Trump has tried to remove this case to federal court under the federal officer removal statute. I wrote about the statute here, and Tillman and I explained why the case could not be removed here. The District Court denied Trump's motion to remove the case to federal court. But unlike with the usual federal question removal statute, where there is no appeal, the federal officer removal statute permits an appeal. This case is currently on appeal to the Second Circuit (Docket No. 24-2299). Judge Merchan noted as much in his decision:
As for the alleged misrepresentations by DANY in connection with the Removal proceedings, this Court is not aware of such misrepresentations. Thus far, Defendant's efforts to remove the case to federal jurisdiction have been rejected. What remains is Defendant's appeal of Judge Hellerstein's denial of his motion for leave to move for removal a second time.
Given this posture, could Judge Merchan issue a final judgment?
(3)The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
It seems that a final judgment cannot be entered until the case is remanded back to state court.
As I understand things, the case has not yet been remanded back to the state court. Can a final judgment of conviction be issued before the case is remanded? I don't know. But this issue may warrant some further thought.
In January 2017, President-Elect Trump held a press conference and released a conflict of interest policy. In what feels like a lifetime ago, many people learned for the first time about the Emoluments Clause. The paper, produced by Morgan Lewis, offered this analysis:
From President Washington to Vice President Rockefeller to President-Elect Trump, many of this Nation's leaders have been extraordinarily successful businessmen. Neither the Constitution nor federal law prohibits the President or Vice President from owning or operating businesses independent of their official duties, as a careful textual and historical analysis shows. Generally speaking, federal conflict-of-interest laws prohibit "officers" or "employees" of the United States from taking positions against the country's interests, maintaining outside employment, receiving an outside salary for official duties, or taking official acts that affect their personal financial interests.2 But these laws have historically not applied to the President or Vice President. As then-Assistant Attorney General Antonin Scalia observed in an Office of Legal Counsel memorandum, the term "officer" typically includes neither the President nor Vice President.3 And since 1989, Congress has approved this tradition by expressly excluding the President and Vice President—along with Members of Congress and federal judges—from most conflict-of-interest laws.4 The Office of Government Ethics has recently re-affirmed that these conflict-of-interest laws do not apply to the President.5 Though Congress has long exempted the President and Vice President from federal conflict-of-interest laws, consistent with a tradition extending back to the Founding, many of these public servants have nevertheless sought to provide extra assurances that their undivided commitment is to the good of the country. For example, Presidents Johnson and Carter voluntarily stepped away from their broadcasting stations and peanut farms.6
1 Authored by: Sheri Dillon, Fred F. Fielding, Allyson N. Ho, Michael E. Kenneally, William F. Nelson, and Judd Stone.
2 See generally 18 U.S.C. §§ 203, 205, 207-09.
3 Memorandum from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, to Kenneth A. Lazarus, Associate Counsel to the President, Applicability of 3 C.F.R. Part 100 to the President and Vice President (Dec. 1974).
4 18 U.S.C. § 202(c) (stating that, unless otherwise provided, "officer" and "employee" do not include President or Vice President).
5 Letter from Walter M. Shaub, Jr., Director, Office of Government Ethics, to Senator Thomas R. Carper, at 2 (Dec. 12, 2016) ("[T]he primary criminal conflicts of interest statute, 18 U.S.C. § 208, is inapplicable to the President[.]").
6 See Megan J. Ballard, The Shortsightedness of Blind Trusts, 56 KAN. L. REV. 43, 54-56 (2007).
As I recall, Seth Barrett Tillman was the first person to raise the Scalia opinion in late December 2016. I've also subsequently researched the Johnson and Carter business interests; the facts are not so clear.
Today, amidst everything else going on, as evidence of the President Elect's "responsibilities," Trump has issued a new white paper. The analysis is a bit more in depth.
First, the memo repeats that federal statutory restrictions ought not to apply to the President:
While federal conflict-of-interest laws expressly prohibit "officers" or " employees" of the United States government from taking positions against the country's interests,² the terms "officer" and "employee" in these statutes expressly exclude the President of the United States (along with the Vice President, Members of Congress and Federal judges).³
This analysis also extends to officer-language in the Constitution.
Second, the memo offers the narrow definition of "emolument," citing the corpus linguistics analysis published by James Phillips and Sarah White in the South Texas Law Review:
Similarly, although the Emoluments Clauses prevent federal officers from accepting gifts or other "emolument" from foreign, federal or state governments or government officials,4 the Emoluments Clauses do not prohibit ordinary and customary private business transactions untethered to the President's official duties such as the payment of ordinary fees for a hotel room, or a round of golf at market prices, or a market fee for services or other business interests.5
5 See Morgan, Lewis, and Blockius LLP, White Paper: Conflicts ofInterest and the President (Jan 11, 2017); see also, e.g., Hoyt v. United States, 51 U.S. 109, 135 (1850) (describing an emolument as "every species of compensation or pecuniary profit derived from a discharge of the duties of the office"); see also James C. Phillips & Sara White, The Meaning of the Three Emoluments Clauses in the U.S. Constitution : A Corpus Linguistic Analysis ofAmerican English from 1760-1799, 59 S. Tex. L. Rev. 181 at 223-30 (2017); Barclay's A Complete and Universal English Dictionary on a New Plan (1774) (defining the term "emolument" to mean "profit arising from an office or employ") ; Oxford UniversityPress, Emolument, OED Online (Dec. 2016) (defining "emolument" as a "[p] rofit or gain arising from station, office, or employment; dues; reward, remuneration, salary") ; Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) ("We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion.") ; but see In re Trump, 958 F.3d at 286-287 ("Respondents assert that emoluments include ' all profits and other benefits [accepted from a foreign or domestic government] that [ the President] accepts through the businesses he owns.' Respondents point us to several Executive Branch and Comptroller General legal opinions that have arguably interpreted the term consistently with their definition, not the President's. And multiple amici have submitted briefs in this and the companion case, No. 18-2488, urging still different understandings of the term emolument. Finally, within the Executive Branch, officials have acknowledged there is considerable debate about this issue ." ) ( internal citations omitted).
Third, the memorandum looks to past practices of Presidents:
Indeed, there are multiple examples of former Presidents and other high ranking government officials who continued private business ventures while in office.6
6 Examples of former Presidents and government officials who have maintain businesses while in office include George Washington whose private business exported flour and cornmeal to foreign countries (Ten Facts about the Gristmill, George Washington's Mount Vernon, Fact 9, http://www.mountvernon.org/the-estate-gardens/gristmill/ten-facts-aboutthe-gristmill (last visited September 29, 2017; National Register of Historic Places Registration Form, George Washington's Gristmill, 8, at 9 (2003), Thomas Jefferson who maintained his farm and nail factory and exported his tobacco crop to Great Britain (Letter from Thomas Jefferson to William A. Burwell (Nov. 22, 1808), in 11 The Works of Thomas Jefferson 75-76 (Paul Leicester Ford ed., 1905)) and, more recently, former Vice President Nelson Rockefeller who continued to hold stock during his term in office in Standard Oil (founded by his which did business worldwide, including, with foreign governments and former Secretary of Commerce Penny Pritzker who continued to retain considerable holding in her family's business, Hyatt Hotels.
There will be more Emoluments Clause litigation. The Lawfare will resume just where it left off.
A few moments ago, the Supreme Court wrapped oral argument in the TikTok case. It stretched nearly three hours, but could have easily been finished in one.
I do not think the Court can settle this matter one way or another in the next nine days. There are simply too many issues. Let me start with perhaps the most relevant question asked at the end: Justice Alito asked whether the Court could grant an administrative stay, that did not turn on the likelihood of success on the merits. That is precisely what I proposed last week. Solicitor General Prelogar groused, but would not say the Court lacked the power to issue such an administrative stay. And that's all Alito needed to hear.
A few members asked about President Trump's brief. I know that elites widely ridiculed it, but Sauer's submission was effective for precisely the reason I suggested: it gives the Court an out to not have to decide this case that could set a sweeping precedent. And that ties in directly with the purpose of the administrative stay.
On the merits, there are four votes clearly in support of the government. Chief Justice Roberts is squarely in support of the law. He asked many questions about the ability of China to inspect data on American devices. I told you this threat was on his mind in the year-end report. Justice Kavanaugh also asked several question along similar lines about national security. Justice Thomas did not see at all how TikTok has any speech interest here. And Justice Alito did now show any inclination that TikTok could prevail.
Justice Gorsuch was wearing his libertarian hat today, and was really worried about the precedent that could be set. He also asked a lot of factual questions, which suggests he would be uncomfortable allowing the law to go into effect. Justice Barrett seemed convinced there is some First Amendment interest at play, but couldn't settle on the appropriate standard of scrutiny. She kept saying "Let's assume I agree with you the First Amendment applies, what is the right test…" When ACB asks the lawyer to assume something, that means it is what she thinks. I think Barrett is finding the right way to rule against TikTok but isn't sure.
Justice Kagan seemed a bit fluid. I've written before that her primary goal is to influence Justice Barrett. At one point, Justice Kagan tried to suggest what Justice Barrett was thinking, then stopped herself, and told us what she is thinking. I think she forgot which role she was playing.
Justice Sotomayor seemed squarely in support of TikTok, but wasn't quite sure how to cobble together a majority. And Justice Jackson was a bit all over the place.
Anyway, bottom line, I think the Court issues some sort of administrative stay (really an administrative injunction). All of the professors who scoffed at my proposal and said it was not proper, or inconsistent with the All Writs Act, will have to respond accordingly. Then let's see what kind of deal Trump can work out. Maybe China can trade TikTok for the Panama Canal.
Update: Shortly after I published this post, I stepped into the FedSoc faculty forum. About the last 15 minutes of the video involves discussion of the TikTok case. I offered some comments from the microphone:
Update 2: Here is the colloquy between Justice Alito and SG Prelogar about an administrative stay:
I have a short essay with this title in the Harvard Law Review Forum, responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter. Here's the Introduction; I'll likely also post excerpts from the piece in coming days.
What may and what should courts and legislatures do about private restrictions on speech? This has long been a critically significant and contested question, both before the Court and elsewhere. This Term's cases—Moody v. NetChoice, LLC, Murthy v. Missouri, and, to a lesser degree, Lindke v. Freed—all considered the issue, but left it mostly undecided.
Professors Evelyn Douek and Genevieve Lakier have written important recent works on this general question, and their Lochner.com? is yet another major contribution on their part. I'd like to elaborate on some of the broader points that they discuss, and then turn to what the cases they focus on (Moody, Murthy, and Lindke) practically mean for the free speech/private power question going forward.
My general theme is that the question has defied, and continues to defy, any simple generalization—perhaps unsurprisingly, given that private power over speech is both dangerous and valuable. Our legal system has not concluded either that all private entities should be constrained by free speech principles, or that all private entities should be free to restrain speech on their property (or by their employees or students) as they prefer. Perhaps this is a problem that is, to borrow the late Professor Fred Schauer's words from a different First Amendment context, "too hard" for a comprehensive rule. At least, if a rule is indeed possible, it has yet to be discovered.
The new cases add to this complexity, by largely acting cautiously and incrementally, perhaps because of the difficulty of the private power problem and not just because of the novelty of social media technology. I hope the analysis below helps us consider how private power questions might be considered in light of those cases. Where Douek and Lakier evaluate and critique the new precedents, I generally ask a complementary question: What might judges, lawyers, legislators, and academics do in the world those cases create?
Petitioner C.D. ("Petitioner"), as administrator of the estate of C.L. ("Decedent") … requests permission to proceed under a pseudonym and to seal this proceeding, citing the sensitive nature of the circumstances and the potential for undue harm to Decedent's surviving children should these matters become public. {Notably, two of Decedent's surviving children are adults, and a third child is fourteen years old.} … [T]he court … denies the motion to proceed anonymously and under seal….
On November 8, 2024, C.L. experienced a mental health crisis and was transported by an EMS ambulance to Bellevue Hospital. He was admitted and passed away less than 24 hours later on November 9, 2024. The petition alleges that Respondents departed from accepted medical standards, resulting in C.L.'s death. Petitioner, Decedent's widow and proposed administrator of his estate, asserts claims of medical malpractice and wrongful death….
New York law strongly presumes that court proceedings should be open to the public, reflecting a fundamental principle of judicial transparency and accountability…. "Confidentiality is clearly the exception, not the rule, and the party seeking to seal court records has the burden to demonstrate compelling circumstances." This presumption ensures that the judicial process is conducted fairly and efficiently, while fostering public trust in the legal system.
Petitioner's request for anonymity and sealing is predicated on concerns about public embarrassment and potential harm to Decedent's surviving children. While the court is deeply sympathetic to the family's loss, such sympathy cannot supplant the rigorous legal standards required to justify sealing or anonymity….
"[P]laintiffs ... allege[] that ... [Fox Corp.] 'actively participated in, directed, and controlled the publication' of the above defamatory statements composed and broadcast by the other defendants."
From yesterday's N.Y. intermediate appellate court decision in Smartmatic USA Corp. v. Fox Corp., by Judges Peter Moulton, Barbara Kapnick, Saliann Scarpulla, Manuel Mendez, and Kelly O'Neill Levy:
In our prior decision in this matter, we modified the motion court's order to, among other things, dismiss the causes of action asserted against Fox Corporation without prejudice to repleading. With respect to Fox Corporation, we found that "the complaint does not adequately allege that any Fox Corporation employee played an affirmative role in the publication of the challenged defamatory statements," nor that "Fox Corporation wholly dominated Fox News so as to [be] liable for the acts of its subsidiary. We explained that "[e]ven if reasonable, the inference that Fox Corporation, merely by virtue of its ownership of Fox News and its profits, actively took part in the procurement, composition, and publication of the challenged statements, does not alone suffice to allege defamation claims against a corporate parent based on conduct by its wholly owned subsidiary."
In the first amended complaint, plaintiffs reasserted the causes of action against defendant Fox News Network and the individual defendants, which we had described as "based on significant allegations that [the guest campaign-lawyer defendants] made defamatory statements about plaintiffs' involvement in the 2020 Presidential election while knowing that the statements were false, or at least with reckless disregard for the truth." Further, we found that plaintiffs alleged, "in detailed fashion," not only that Fox News Network and the host defendants "merely report[ed] the newsworthy fact that the President's campaign lawyers were recklessly making statements conveying false information," but that "in their coverage and commentary, [they] effectively endorsed and participated in the statements with reckless disregard for, or serious doubts about, whether the assertions or implications that plaintiffs had participated in election fraud had any basis in truth or were supported by any reliable evidence."
In addition, plaintiffs asserted a new defamation cause of action against Fox Corporation, which alleged that during the relevant time period, it "actively participated in, directed, and controlled the publication" of the above defamatory statements composed and broadcast by the other defendants.
Trump's emergency application to stay his sentencing has the docket number 24A666. Sometimes, the truth is stranger than fiction.
The Court denied the application by a 5-4 vote. Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application. Based on the math, we know that Chief Justice Roberts and Justice Barrett voted to deny the application. In the past, I've described the current composition as a 3-3-3 Court on the shadow docket. But for the emergency docket, I think we now have a 5-4 court. I think Justice Kavanaugh has shifted a bit. This same-split arose in the razor wire case last year. Justice Barrett is opposed to granting emergency relief (unless the case comes from the Fifth Circuit), while Justice Kavanaugh recognizes the importance of emergency relief. Going forward, I think Roberts and Barrett will consistently vote against Trump on the emergency docket, even if they might rule for Trump on the merits docket.
To the majority's credit, there is a brief explanation why the stay was denied. Two reason are offered.
Application (24A666) for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons. First, the alleged evidentiary violations at President-Elect Trump's state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect's responsibilities is relatively insubstantial in light of the trial court's stated intent to impose a sentence of "unconditional discharge" after a brief virtual hearing. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.
I think Barrett, the former evidence and federal courts professor, wrote the first point. It is short, to the point, and says all the things that Barrett thinks. Indeed, in Trump v. United States, Justice Barrett disagreed with the majority's ruling that the court could not admit "immune" actions as evidence in the trial. She would have allowed the admission of that evidence. Barrett seemed to think the trial court could weight the admissibility issues. Also, Barrett opposed the doctrine of immunity (which allows for interlocutory review), and instead said that immunity could be raised as a defense, and then be "addressed in the ordinary course on appeal." This sentence is ACB in a nutshell.
The second point is John Roberts at his core. He asks, what are the burdens? Trump has to sit through a "brief virtual hearing." He doesn't even have to pay attention! Judge Merchan will impose a sentence without any actual punishment. And what is the effect of those burdens? A "relatively insubstantial" impact on "the President-Elect's responsibilities." What are those responsibilities? And "relative" to what? Has there ever any experience in the history of the republic that is even remotely comparable? Roberts does not answer any of these questions. On the other side of the ledger, what are the benefits of allowing the sentencing to go forward? Roberts does not say. Nothing about the importance of finality, or letting justice be done, or anything like that. And that's the tell. Roberts sees no actual benefit to having Trump sentenced to no time. There is not a real balancing test because Roberts doesn't really balance the burdens against anything. He only says the burdens are not that bad, so suck it up. This is just make-weight to deny the application.
I know the Court felt compared to rush out some stuff about why the application was being denied. Critics demand an explanation on the "shadow" docket. But this explanation was quite unsatisfactory. I would have preferred a one sentence dismissal rather than trying to parse what are the "President-Elect's responsibilities" under the Constitution.
On Wednesday, I wrote about the ABC News Story on Trump's phone call with Justice Alito. On Thursday, the New York Times offered a far more in-depth, and frankly confounding story. No, not confounding for the reasons you might think. I was confounded that multiple people in Trump's orbit are leaking information to the New York Times to sabotage an Alito clerk from a position in the administration, and in the process creating problems for the Justice.
The story begins:
Justice Samuel A. Alito Jr. received a call on his cellphone Tuesday. It was President-elect Donald J. Trump, calling from Florida. . . .
Justice Alito said in a statement on Wednesday that the pending filing never came up in his conversation with Mr. Trump and that he was not aware, at the time of the call, that the Trump team planned to file it. People familiar with the call confirmed his account. . . .
The circumstances were extraordinary for another reason: Justice Alito was being drawn into a highly personalized effort by some Trump aides to blackball Republicans deemed insufficiently loyal to Mr. Trump from entering the administration, according to six people with knowledge of the situation, who spoke on the condition of anonymity to describe private conversations.
I had to read that last sentence three times to figure out what was going on. (I am a fast writer but a slow reader.) Six people (six!) in Trump's orbit spoke to the New York Times (of all publications!) about an effort to block an Alito clerk from obtaining a high-level appointment. Six is a stunning number. Articles usually cite "several" unnamed sources, but I can't recall seeing a specific number, especially one that was so high. But in the process of talking to New York Times about this internal squabble, these conservatives dragged poor Justice Alito into the maelstrom. Why? Why? Why?
The article continues to describe the situation of William Levi, who clerked for Justice Alito and has a sterling resume:
The phone call centered on William Levi, a former law clerk of Justice Alito's who seemingly has impeccable conservative legal credentials. But in the eyes of the Trump team, Mr. Levi has a black mark against his name. In the first Trump administration, he served as the chief of staff to Attorney General William P. Barr, who is now viewed as a "traitor" by Mr. Trump for refusing to go along with his efforts to overturn his loss in the 2020 election.
Mr. Levi has been under consideration for several jobs in the new administration, including Pentagon general counsel. He has also been working for the Trump transition on issues related to the Justice Department. But his bid for a permanent position has been stymied by Mr. Trump's advisers who are vetting personnel for loyalty, according to three of the people with knowledge of the situation.
Again, the sourcing here is very precise. Six people spoke about the "totally perfect" phone call. And three of those six were aware of Levi's employment situation.
As Mr. Trump puts together his second administration, Mr. Barr is among a handful of prominent Republicans who are viewed with such suspicion that others associated with them are presumptively not to be given jobs in the administration, according to people familiar with the dynamic. Republicans in that category include Mr. Trump's former secretary of state Mike Pompeo and his former U.N. ambassador Nikki Haley. To be called a "Pompeo guy" or a "Haley person" is considered a kiss of death in Mr. Trump's inner circle. Resistance to such people can usually be overcome only if Mr. Trump himself signs off on their hiring.
This last part is important. The reason why President Trump, and not a subordinate had to make the call, is that Trump himself had to personally sign off on the hiring. The ethical guidelines provide that "there would be no impropriety in a judge answering an inquiry from a screening committee or appointing authority with respect to the judge's knowledge concerning the qualifications and other relevant factors of a nominee for appointment to any public office." Trump was the "appointing authority" so Justice Alito was allowed to receive the call from him. If Trump was not the final decision maker, I'm not sure that he could have made the call.
People on Team Trump said that Alito requested the call. But Alito said Levi facilitated the call:
Tuesday's phone call took place against that backdrop. Several people close to the Trump transition team on Thursday said their understanding was that Justice Alito had requested the call. But a statement from Justice Alito framed the matter as the justice passively agreeing to take a call at the behest of his former clerk.
The disconnect appeared to stem from Mr. Levi's role in laying the groundwork for the call in both directions. It was not clear whether someone on the transition team had suggested he propose the call.
This path seems probable. Levi told his former boss about what was going on. Alito said he would be willing to talk to Trump. But Alito did not reach out to Trump. Instead, Levi suggested to Trump that Alito was open to a call from him. And Trump called Alito. This part the sources think "was not clear."
The story continues:
During the call, according to multiple people briefed on it, Mr. Trump initially seemed confused about why he was talking to Justice Alito, seemingly thinking that he was returning Justice Alito's call. The justice, two of the people said, told the president-elect that he understood that Mr. Trump wanted to talk about Mr. Levi, and Mr. Trump then got on track and the two discussed him.
Trump, apparently, was a bit confused about what was going on. Maybe he was affected by the "relatively insubstantial" burdens imposed by Judge Merchan on what Chief Justice Roberts and Justice Barrett referred to as "the President-Elect's responsibilities." Yes, Trump has a lot legal proceedings this week, on top of President Carter's funeral and changing the Gulf of Mexico to the Gulf of America. I think we can cut him just a bit of slack if he was confused.
I realize many of the things that Trump says have no chance of becoming reality. But it is foolish to ignore him. I have a few legal questions about the logistics for some of Trump's territorial aspirations.
First, let's talk about Greenland. One of the primary reasons to acquire Greenland would be for its natural resources--in particular, the rare earth metals. I don't pretend to know the first thing about how to extract those resources from the ground. But I do know that federal environmental regulations would create significant obstacles to obtaining those resources. Moreover, the dreaded National Environmental Protection Act (NEPA) would erect countless road blocks. Were the United States to acquire Greenland, could it by statute simply exempt that territory from all federal environmental laws? I think that sort of move would stimulate corporate investments needed to facilitate a potential acquisition of the territory. (The Truman administration offered Denmark about $100 million in gold and oil rights in 1946.) Moreover, could Congress grant exclusive jurisdiction for all Greenland cases to (let's say) the Fifth Circuit? It never made sense to me why Puerto Rico is in the First Circuit, in far-away New England, rather than much closer in the Eleventh-formerly-Fifth Circuit.
Second, speaking of Puerto Rico, I suspect Trump's aspirations may include adding some territories and dropping others. There is an ongoing debate whether Puerto Rico should be granted statehood or become independent. I realize the Puerto Rican people have not made a final decision on that issue. Congress has the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Could Congress decide on its own to grant Puerto Rico independence, and deem it no longer a territory of the United States? Or is the United States obligated to maintain a territory forever?
I don't know the answer. The United States granted the Philippines independence through a treaty. But could it be done unilaterally by statute? Justice Sotomayor alluded to this issue, indirectly in the PROMESA case:
Further, there is a legitimate question whether Congress could validly repeal any element of its earlier compact with Puerto Rico on its own initiative, even if it had been abundantly explicit in its intention to do so. The truism that *494 "one Congress cannot bind a later Congress," Dorsey v. United States, 567 U.S. 260, 274, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), appears to have its limits: As scholars have noted, certain congressional actions are not subject to recantation. See, e.g., Magruder, The Commonwealth Status of Puerto Rico, 15 U. Pitt. L. Rev. 1, 14 (1953) (listing as examples the congressional grant of independence to the Philippine Islands and congressional grant of private title to public lands under homestead laws); Issacharoff, 94 Ind. L.J., at 14 ("Once a Congress has disposed of a territory, of necessity it binds future Congresses to the consequences of that decision"); T. Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 90 (2002) ("The granting of neither statehood nor independence may be revoked, nor may land grants or other 'vested interests' be called back by a subsequent Congress").
Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 590 U.S. 448, 493–94, 140 S. Ct. 1649, 1677–78, 207 L. Ed. 2d 18 (2020) (Sotomayor, J., concurring).
Third, on New Year's eve, I had occasion to point out an error the Chief Justice made about the Articles of Confederation. (Yes, the Articles provide for courts and judges.) There is another provision of the Articles that surprisingly has not gotten much attention of late. (On the first day of ConLaw, I cover the entire Declaration, Articles, as well as the Constitution; my students get it.)
Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.
Who else knew that was in one of our organic documents? Now, I will make an argument to infuriate people. The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
Treaties which "shall be made" under the Constitution shall be the Supreme Law of the Land. But also, treaties previously "made" under the Articles of Confederation government remain the Supreme Law of the Land. For example, the Treaty of Paris was negotiated under the Articles government, and remained binding just the same.
Could it be argued that the invitation made to Canada to join the "confederation" remains valid, since it has not yet been rescinded? Could Canada obtain statehood with "all the advantages of this union" without having to be formally admitted as a state? I told you I would infuriate people.
But would Trump really want all of Canada? Or maybe just Alberta, a fairly conservative province with vast oil and gas deposits, that could be exempted from NEPA. Maybe the people of Alberta might even favor statehood. And the Articles of Confederation may provide a fast-pass for admission.
Fourth, I've long thought about a constitutional amendment that would allow the people to redraw the state boundaries everyone so often by popular referendum. The states would be required to accept incoming property and to surrender outgoing property. The number of states would have to remain fixed, and the moves would have to be contiguous. But the people, perhaps on a county-by-county basis, can jump around. Consider a few examples. My home town of Staten Island could vote to join New Jersey. Eastern Washington and Oregon could vote to join Idaho. Northern and Eastern California could join Nevada (California would stretch from Sacramento to San Diego). Northern Virginia could join Maryland. El Paso could leave Texas and join New Mexico. The Florida Panhandle could join Alabama. The people of upstate New York can join Vermont. The Upper Peninsula of Michigan could join Wisconsin (and generation of Michiganders would no longer have to demonstrate where they live by holding out their hands). Western New York could join Pennsylvania. Philadelphia could join Delaware to basically become its own state. Some parts of Western Pennsylvania could join Ohio. And Northern Maryland could join Pennsylvania--rejigger the Mason-Dixon line. Maybe the state of Alberta could be stretched out to reach Alaska! This proposal would allow people to join states that more closely align with their values. Red states would become redder, blue states would become bluer, and purple states would be harder to find.
I realize nothing will likely come from any of this, but it is fun to ponder how the Constitution interacts with these issues.
The first few months of the Trump Administration felt like a marathon run at a sprint pace. It was nonstop action in the courts that was sometimes difficult to keep up with. This week provides a preview of things to come.
In the New York criminal case, Judge Merchan announced that he would sentence Trump on Friday, January 10 to a term of "unconditional discharge."
In the Florida criminal case, Jack Smith announced that he would transmit his report on the Trump J6 case, and Attorney General Merrick Garland planned to release it on Friday, January 10.
And at the Supreme Court, on Friday, January 10, the Supreme Court would hear oral arguments in the TikTok case. Lurking in the background of that case was Trump's brief asking the Court to grant some sort of temporary relief so he can make a deal.
January 10 became this cosmic date on which all legal matters converged.
But it would be January 9 when most of the issues would be settled. Around 7:17 p.m., the Supreme Court denied Trump's emergency motion to stay the sentencing by a 5-4 vote. (I'll have more to say about that split later.) About 30 minutes later, at 7:46 p.m., an unsigned order from the Eleventh Circuit denied the emergency motion from Trump's two co-defendants, asking to block Garland's release of the Smith report.
Back-to-back losses. Wham-bam, thank you ma'am.
The sentencing of Trump will be held Friday morning. I wonder if Trump will have a chance to make a statement during the sentencing. My suggestion: twelve New Yorkers voted to convict me, and seventy-seven million voters didn't care. And around the same time that Trump is in the New York hearing, the TikTok oral argument will begin.
As I read the Eleventh Circuit's order, Judge Cannon's injunction was not vacated, as DOJ did not formally appeal that order. And Judge Cannon's injunction remains in place for three days after the Eleventh Circuit's ruling. The Florida defendants will probably take an emergency appeal. And I suspect Circuit Justice Thomas will grant an administrative stay, with an expedited briefing schedule. If my math is right, SCOTUS could rule on the matter on January 18 or 19, right before the inauguration. Garland can release the report shortly before he loses the job. If, for whatever reason, the process drags on past January 20, that report will likely never see the light of day.
What a strange confluence of legal events, all at once. Trump is once again the fulcrum of the legal order. Everything moves around him.
Update: Shortly after I published this post, around midnight, DOJ filed an appeal from Judge Cannon's ruling. The appeal asks the Eleventh Circuit to vacate the injunction. There is now a race to SCOTUS to get an administrative stay. Alternatively, DOJ seeks mandamus.
You can teach an entire class on federal and state court appellate procedure based on the events of the past few days.
Four Second Amendment petitions were distributed for the Court's conference on Friday January 10. I just posted on the merits of these cases. A dramatic development has just occurred showing the dire need for the Court to clarify its jurisprudence in this area. The best case to do so is Snope v. Brown, which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes.
Here's the urgency. Yet another state, Colorado, is about to ban virtually all semiautomatic rifles, large numbers of semiautomatic pistols, and even a number of semiautomatic shotguns. The previous state bans encompass America's most widely-held rifles such as the AR-15, but they don't apply to semiautomatic rifles that do not have pistol grips or other cosmetic features. The Colorado bill will ban ALL semiautomatic rifles that use a detachable magazine, which means almost all semiautomatic rifles. No other state goes that far.
The bill, SB 3, defines a "specified semiautomatic firearm" to include a "semiautomatic rifle with a detachable magazine." That will include a Browning BAR Semi-Auto rifle, a traditional hunting rifle that comes with a magazine holding only three rounds. The only exemption is for rifles that use .22 rimfire rounds, which cannot be used for large game.
SB 3 will also ban a "gas-operated semiautomatic handgun with a detachable magazine," which would include countless pistols such as the S&W M&P 5.7. It doesn't matter that the Supreme Court in Heller held that handguns as a class are protected by the Second Amendment.
The bill will also ban a "semiautomatic shotgun with a detachable magazine," such as a Remington 870 DM which comes with a six-round magazine. While most semiauto shotguns use a tubular magazine, detachable magazines are safer as they allow unloading without chambering each round.
SB 3 will make it a crime to transfer, sell, or purchase a specified semiautomatic firearm. A first offense will render one liable for a $250,000 fine. In addition to imprisonment, conviction for a second offense will leave the person ineligible to possess any firearm.
According to the Colorado Sun, SB 3 has 18 Senate cosponsors, and only 18 votes are needed for passage. The Sun notes that it will "almost certainly be approved by the House, where it has 24 original cosponsors." In support of the bill, Everytown mischaracterizes the subject firearms as "high-powered, military style firearms."
Some states and some circuit courts are pushing the envelope against the Supreme Court's Second Amendment rulings. It's time for the Court, as Chief Justice Marshall famously put it, "to say what the law is."
In a tweet last year (that I just came across), the Lemkin Institute for the Prevention of Genocide, long captured by the far left, writes: "The Lemkin Institute has had it with the cynical lies and propaganda from Israel and the USA. One can have different views about the definition of genocide, but one may not use definitional disputes to deny genocide."
Where to begin? If Party A and Party B are arguing over whether Israel is committing genocide, and Party A says, "genocide requires an intent to wipe out a large percentage of a civilian population defined by race, ethnicity, or religion, and action in accordance with that attempt, and that does not describe Israeli action in Gaza," and Party B says, "Israel is committing genocide because I believe that it has a long-term plan to dispossess and expel all Palestinians, and the Gaza War is consistent with that plan," *of course* the definitional dispute should be used by Party A to deny there is a genocide (and Party A could add that just because Party B believes something, doesn't make it true!)
Let's try out the Institute's perspective in a murder case. Defense lawyers: "Ladies and gentleman of the jury, the definition of murder in this state requires both malice aforethought by the accused, and action resulting in the death of the victim. However, my client had no such malice, and the victim is still alive." Lemkin: "Objection, we don't think murder requires either malice aforethought or death, and one may not use definitional disputes to deny murder."
How about a rape case?: "In New California, the statutory definition of rape states there must be a lack of consent to sexual contact, and that contact must involve penetration of a bodily orifice. My client had both written and verbal consent to initiate sexual contact with the accuser and she has acknowledged to this court that there was no penetration of any orifice." Lemkin: "Objection, we believe that rape is solely a matter of the intentions of the accused, and one may not use definitional dispute to deny rape."
What Lemkin really seems to be saying is that if they want to accuse Israel of genocide because it suits their propaganda interests, how dare anyone object! Indeed, they pretty much say so: "Let us be clear: Israel is committing genocide in Gaza." How do we know? "These are not political statements. They are statements that are made from knowledge and experience." Oh, well, that settles it.
Wait, there is more: "Nevertheless, you do not need a PhD, a law degree, or X-ray vision to see the genocidal dimensions of Israel's carnage in Gaza." No, but you do need an accurate definition of genocide.
"It is clear in the behavior of the state and its military, on full display in yesterday's horrific bombardment of a Rafah camp." This is a great example of saying something is clear to obscure the fact that it's not only far from clear, you don't have any evidence at all. As far bombardment of enemy territory, that's pretty much what happens in a war, and war, as such ,is not genocide.
Lemkin's social media people seem to be of the mindset of those who think if you say something with enough vigor, emotion, and anger, it means that people should believe you. But you know what you need to support a charge of genocide? First, you need an accurate definition of genocide. Then, you need evidence that the behavior of the state actor in question meets that definition. And if your definition of genocide is wrong in the first instance, than of course one can use that "definitional dispute" to deny there is genocide.
If it weren't for the serious consequences of blood libel, I'd feel embarrassed for them.
From Friday's decision by Fulton County (Ga.) Superior Court Judge Robert McBurney in Judicial Watch v. Willis:
Plaintiff submitted an Open Records Act (ORA) request to Defendant on 22 August 2023 by way of Fulton County's ORA on-line "portal." That same day, Plaintiff received confirmation that its request had been delivered and would be channeled to the "appropriate department" (presumably the District Attorney's Office). The following day, the County's Open Records Custodian sent Plaintiff an e- mail confirming that the District Attorney's Office had received the inquiry and asking Plaintiff to "simplify" its ORA request. Literally five minutes later, before any simplification had occurred, Plaintiff received a second e-mail from the Records Custodian: "After carefully reviewing your request. (sic) We do not have the responsive records."
This response was perplexing and eventually suspicious to Plaintiff, given that Plaintiff subsequently uncovered through own effort at least one document that should have been in the District Attorney's Office's possession that was patently responsive to the request. This discovery prompted the current litigation, filed in March 2024, seeking an order directing Defendant to comply with the ORA and provide all responsive records. During the pendency of the litigation, Defendant thrice more denied the existence of any responsive records, once in a request for admission and twice via answers to interrogatories. Every time: we have searched and there is nothing.
Earlier this week, my longtime coauthor Dr. Joanne D. Eisen passed away. In this post, I'd like to describe one part of her admirable life: her scholarship and writing in support of human rights, particularly self-defense.
Joanne Dale Eisen was a wife, a mother, and a dentist. For most of her career, she lived in New York State. So did optometrist Dr. Paul H. Gallant, who passed away in 2015. Paul was a devoted husband and father. Paul and Joanne met via their mutual interest in the right to arms and began a long-term writing collaboration. Their families were very tolerant of how much time the pair spent on email and on the telephone working together.
In 2000, Paul and Joanne approached me, and we began a decade-long collaboration that resulted in a dozen law review articles and over three dozen magazine articles. A full list appears at the end of this Post. Joanne was an outstanding researcher, and she would gather sources and conduct the basic factual research. Paul would write a first draft, which I would revise, and to which I would add legal analysis.
Some of our short articles, especially our early articles for National Review Online, addressed topics in the American right to arms debate. However, all of the journal articles, and many of the shorter ones, described the plight of defenseless victims in other nations. These articles covered Albania, Bosnia and Herzegovina, Cambodia, Canada, East Timor, Ethiopia (Anuak genocide), Guatemala, Jamaica, Kenya, Mali, New Zealand (Chatham Islands, Moriori genocide by Maori), Ottoman Empire (Armenian genocide), Panama, Papua New Guinea (Bougainville), Uganda, Solomon Islands, South Africa, South Sudan, Sri Lanka, Sudan, United Kingdom, and Zimbabwe. As the list indicates, Joanne was a tremendous researcher.
During the first decade of this century, the propaganda machines of the United Nations and the gun ban organizations were producing a vast quantity of disinformation to promote the prohibition of firearms, particularly firearms owned for personal defense against criminals, criminal gangs, and criminal governments. On the other side, there was very little scholarly rebuttal, other than what Paul, Joanne, and I produced. For example, the UN-fabricated claim that there are 740,000 global deaths annually from small arms, which we exposed in: How Many Global Deaths from Arms? Reasons to Question the 740,000 Factoid being used to Promote the Arms Trade Treaty, 5 NYU Journal of Law & Liberty 672 (2010).
More generally, the UN and other anti-human rights organizations enthusiastically promoted forcible confiscation of arms from decent people by pointing out the harms caused by firearms in the hands of criminals. Yet gun prohibitionists were typically reticent about describing what happened after disarmament was accomplished: namely mass murder and other atrocities perpetrated by governments or by entities allied with governments. Like Horatius at the Bridge, Joanne and Paul fought nearly alone to report the catastrophic consequences of disarming ordinary people, particularly in less-developed nations.
Joanne until shortly before her death, and Paul until his passing in 2015, also wrote many articles with other writers, including Canadian professor Gary Mauser and their Long Island friend Alan Chwick.
Joanne and Paul's scholarship on human rights has been cited in 44 law review articles, not counting in articles by me, and in dozens of books and journal articles in other disciplines.
Joanne's dedication to human rights was not an abstraction. During research on Ethiopia, Joanne came into contact with a dissident Ethiopian journalist from the oft-persecuted Oromo ethnic group, whom the government had attempted to assassinate. With my assistance (relying on the advice of immigration lawyers I knew), arrangements were made for him to escape and seek asylum in the United States. Joanne took him into her home and made him a de facto member of her family.
Like Paul Gallant, Joanne Eisen lived a life that changed the world for the better. Her scholarly legacy will endure for many years to come. Collaborating with Joanne and Paul has been one of the honors of my life.
In Judge Wendy Beetlestone's opinion today in León v. Hanoch, the parties were attorney coworkers; León had been sexually involved with Hanoch's friend Goodman, who was also a coworker. "Throughout the relationship, Goodman told Hanoch that León was stalking, threatening, and harassing her; that he was hazing her at work; and, that she was scared for her safety." Here's the court's summary of the facts and procedural history:
The instant lawsuit is based on events that occurred after the three spent a night barhopping in Philadelphia. As the night began to wind down, Goodman left the bar, telling her friends that she would order an Uber home. León followed, and Goodman texted Hanoch that she was trying to "get away" from him. Hanoch pursued them both, at one point running across the street, against traffic. During her pursuit, Goodman called Hanoch, crying, and reiterated that León was chasing her down the street.
Once Hanoch caught up to León and Goodman near Philadelphia City Hall, she saw León's hands outstretched towards Goodman as if he was trying to get hold of her while Goodman was "cowering away" from León. She also saw that Goodman was "sobbing, her make-up was streaked everywhere." Nearby—positioned catty-corner to Goodman and León— Hanoch noticed two police officers inside their squad car. She approached them and told them that she thought Goodman was being sexually assaulted.
When the officers did not engage with the situation, Hanoch spun around and inserted herself between Goodman and León, yelling at León while she did so. Although in her deposition she testified that she did not remember exactly what she said at the time, the parties agree that Hanoch said something like "Get away from her. Don't ever touch her again. I'll kill you if you ever come near her." {In his Complaint, León alleged that Hanoch struck him during the confrontation as well but brought only an assault claim against Hanoch, not a battery claim.}
