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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
"On Emil Bove's Directive to Danielle Sassoon"
A perspective from the decidedly conservative Ed Whelan, writing at the National Review Online:
In an act of courage and integrity, Danielle Sassoon, Donald Trump's own hand-picked interim United States Attorney for the Southern District of New York, resigned yesterday over acting Deputy Attorney General Emil Bove's insistence that she move to dismiss without prejudice the pending criminal charges against New York City mayor Eric Adams. For fuller background on the matter, I encourage you to read Andy McCarthy's excellent Corner post yesterday.
Here I will offer some observations on the remarkable exchange between Bove and Sassoon: Bove's February 10 directive to Sassoon, Sassoon's February 12 letter to Attorney General Pam Bondi, and Bove's February 13 reply….
Read the post for more, and see also Whelan's Hagan Scotten, Lead Prosecutor of Eric Adams, Resigns in Awesome Letter. I don't have well-informed views on the controversy myself, but Whelan's views struck me as worth passing along, especially given that Whelan has supported at least some of the Trump Administration's other recent actions.
UPDATE: A short follow-up post from Whelan.
"Fools" Rush In the Department of Justice
Another day, another resignation letter.
The fallout continues from the Eric Adams case. Yesterday, I wrote about Danielle Sassoon's resignation, and Emil Bove's response. Today, Hagan Scotten, another Assistant United States Attorney resigned with a formal letter.
Again, there is much to discuss about the Sassoon-Bove exchange, which I will do in the future after I've had some more time to reflect. Here, I will reflect on one passage in Scotten's letter:
I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.
In recent years, the Department of Justice has prosecuted public officials in high profile cases. In several of those cases, the Supreme Court unanimously reversed the convictions.
In McDonnell v. United States (2016), the Court held that an "official act" must involve a formal exercise of governmental power on something specific pending before a public official. DOJ thought it knew what was a proper exercise of government power. The Supreme Court disagreed. Could it be said that the scores of DOJ employees who brought this ill-fated prosecution were "fools"? Do you know who was the Chief of the DOJ Public Integrity Section at the time? Jack Smith. Was it foolish for a prosecutor to indict a former Governor in a case that garnered zero votes at the Supreme Court?
Jack Smith also led the prosecution of John Edwards, the former Senator and Vice Presidential Candidate. Smith relied on a dubious theory of campaign finance law, and the case yielded a deadlocked jury and a mistrial. (When Smith reported that he had enough evidence to convict Trump, I thought back to the Edwards case.) DOJ did not try that theory again. Was it foolish to bring this prosecution of a former public official when the jury wouldn't even convict?
Fast forward to Kelly v. United States (2020). This prosecution arose from the so-called Bridgegate scandal. The United States indicted members of Governor Chis Christie's administration. The Supreme Court unanimously reversed the conviction. Justice Kagan ruled that the scheme, which did not aim to obtain money or property, could not violate the federal fraud law. Was it foolish to indict a public official in a case that garnered zero votes at the Supreme Court?
In 2023, the Supreme Court decided Ciminelli v. United States and Percoco v. United States. These cases arose over scandal involving funding for a Buffalo Bills stadium project. In both cases, the Supreme Court unanimously reversed the convictions. Was it foolish to bring these cases that garnered zero votes at the Supreme Court?
Sensing a pattern? Another public corruption case pending this term, Kousisis v. United States, will likely yield a reversal. And I think the prosecution against Senator Menendez will meet a similar fate, if he is not pardoned. That doesn't even factor in Alvin Bragg's conviction of Trump, which will almost certainly not stand up on appeal. Lawfare all the way down. Maybe, just maybe, federal prosecutors are not in the best position to determine whether public officials abused their power.
I appreciate that Scotten thinks that the Trump DOJ's approach to criminal prosecution is "foolish." I think much the same can be said for how federal prosecutors have approached public corruption cases for some time. And you don't have to take my word for it. Add up all of the unanimous Supreme Court rulings.
What we have here are two very different conceptions of the federal criminal justice system. On the one hand, Sassoon and her colleagues defend the traditional notion that "independent" prosecutors have the power to define what is in the public good. They can define when public officials abuse their power, and can punish those actions with criminal sanctions. (We saw similar arguments during the first Trump impeachment.) Those defending Sassoon are invested in the DOJ club, and the continuation of its longstanding practices.
President Trump, through Bove, articulate a different perspective. The President, as head of the executive branch, can make his own determination of what is in the public good, and determine when public officials are abusing their power. Trump, perhaps more than any living person, is uniquely situated to make this sort of judgment. From the moment he was sworn in, he faced nonstop litigation (remember the Emoluments Clauses?) and two impeachment trials. After he left office, he was indicted in several courts based on novel and dubious theories of criminal liability. Who can forget the efforts to disqualify him under Section 3--which also led to a unanimous Supreme Court reversals? And despite all that happened, Trump still won re-election. Distinguished prosecutors thought they knew what was in the public good. The voters disagreed.
There will likely be more resignations. But I think little more is left to be said here. There are two diametrically-opposed views on display. And only one such view can prevail.
FTC Bans Political Appointees From Being ABA Members
The ABA has been planting the seeds of its own demise for decades.
In April 2023, I wrote a column for the ABA Journal titled "The ABA needs ideological diversity to ensure its future." I concluded:
If the ABA does not arrest its progressive lurch, the organization risks its own obsolescence. Model Rules will not be adopted. Evaluations of judicial nominees will be ignored. The accreditation monopoly will cease. And so on. A decline in membership will be the least of the ABA's problems. The ABA can either adapt to a new political reality or fade away like the guilds of yore.
Over the following year, I attempted to work within the ABA to reform the organization. I joined a caucus formed to promote viewpoint diversity within the ABA. I even spoke at the Midyear Meeting, where I explained in clear terms how the ABA's fixation on leftist politics and DEI would spell its demise. My remarks were met with shock. I was called a racist and worse. People objected to my presence on the panel. One person in the audience said that she would defend the ABA's DEI efforts till the bitter end, even if she was the last member. She may yet get her wish. For reasons I will discuss more fully another time, I resigned from the Caucus. In short, I thought the ABA was beyond repair, and my time could be spent better doing other things.
Today, Andrew Ferguson, the Chairman of the Federal Trade Commission, hammered what may be the first nail in the ABA's coffin.
For many years, federal antitrust enforcers and the private antitrust bar have enjoyed a cozy relationship facilitated by the Antitrust Law Section of the American Bar Association (ABA). The ABA's long history of leftist advocacy and its recent attacks on the Trump-Vance Administration's governing agenda, however, have made this relationship untenable. I therefore have concluded that it does not advance the interests of the United States government for Federal Trade Commission (FTC) political appointees to hold leadership positions in the ABA or to participate in ABA events. Accordingly, I prohibit FTC political appointees from holding leadership positions in the ABA, participating in or attending ABA events, or renewing any existing ABA memberships. I further prohibit the FTC from expending any funds to facilitate any employee's membership in the ABA or participation in, or attendance at, an ABA event.
The FTC is first, but it will not be last. I suspect all federal agencies will follow suit. Whatever difficulties the ABA had with membership numbers will become far worse. And I fully expect the Department of Education to revoke the ABA's accreditation power. The ABA will be left with little reason to exist--at least not at such a large size. There will be no real influence left.
It didn't have to end this way. The ABA could have arrested its decline. Instead, it was captured by leftist groups, and tied itself to the DEI mast.
Short Circuit: A Roundup of Recent Federal Court Decisions
Pole cameras, real estate RICO, and the Eighth Circuit island.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Of late, the Eleventh Circuit has been at the cutting-edge of excessive-fines litigation. And in a recent case—United States v. Schwarzbaum—the court got some important things right (e.g., that the Excessive Fines Clause does indeed apply to multi-million-dollar civil penalties). But it also got some important things wrong (e.g., the legal standard for determining what's excessive), and wrong in ways that are hard to square with Supreme Court precedent and the precedent of other courts. In a modest but insightful paper, two of IJ's excessive-fines mavens break things down and explain why Schwarzbaum might be a decent candidate for an en banc rethink—whether or not either side asks for it!
Friends, this week marks the official Tenth Anniversary of Short Circuit. Zounds! Please do come and join us at this big thing with important people we're doing live and in person on April 3 in D.C.
New on the Short Circuit podcast: Hear from Prof. Rebecca Haw Allensworth about her new book, The Licensing Racket.
Woman Convicted for Mass-Mailing Sexual Misconduct Accusations About Former Teacher
From State v. Scatton, decided Jan. 30 by Judge Carl Taylor of the Connecticut Superior Court, New Britain Jud. Dist. It seems pretty clearly wrong to me, but part of a broader trend in which states are reviving criminal libel through criminal harassment or cyberstalking laws (and without even a requirement that the prosecution show the allegations were false). More broadly, whether or not the concern is about reputation, it's part of a trend of using criminal harassment laws and harassment restraining orders to punish speech about a person rather than unwanted speech to the person; when that's challenged on First Amendment grounds, appellate courts generally uphold the First Amendment claim, but strange things can happen in trial court:
JG indicated that the defendant, Annette Scatton, was a former student who had been harassing him since 2018. JG indicated that Scatton had been sending harassing letters to funeral directors statewide.
"TO WHOM IT MAY CONCERN,
[JG], PROGRAM DIRECTOR OF FUNERAL SERVICE IN CONNECTICUT IS HAVING SEX WITH HIS MALE STUDENTS….
IN ADDITION, HE IS SEXUALLY ACTIVE WITH MANY MEN IN THE FIELD OF FUNERAL SERVICE IN THE STATE OF CONNECTICUT. PLEASE - BE AWARE. HE IS EXTREMELY DECEITFUL AND DANGEROUS."
First Annual Hoover Institution (Stanford) / ASU Law Aspiring Free Speech Scholars Workshop
Please feel free to forward this to anyone you think might be interested.
Are you a law student, judicial law clerk, or lawyer hoping to publish your first, second, or third law review article related to free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?
If so, send us your draft by May 15, 2025. (This should still be a draft article, not an article that's already published or expected to be published within six months or less.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop—planned for early in the Fall—where they can present their papers and get helpful feedback on them. We have funds to pay for transportation and lodging for the selected authors' trips.
We also plan to officially recognize up to three of the top articles among those we review, and possibly give honorable mention to some additional number as well. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.
How Do Board Diversity Mandates Affect Firm Value?
A new study suggests California's ill-fated board diversity requirements did not enhance firm value.
In 2018 and 2020, California adopted laws requiring corporations headquartered in the state to diversify their Boards of Directors. Specifically, the laws required that Boards include female representation and a minimum number of people from under-represented racial, ethnic or sexual orientation background.
These laws did not survive long. They were successfully challenged in state and federal court. But the laws may have been on the books long enough to get some sense of their effects on firm value.
A new study by Jonathan Klick, "Market Response to Court Rejection of California's Board Diversity Laws," just published in the Journal of Empirical Studies, looks at the effect of the invalidation of the Board diversity laws on firm valuation. Here is the abstract:
California mandated that firms headquartered in the state include women (SB 826) and underrepresented minorities (AB 979) on their corporate boards. These laws, passed in 2018 and 2020 respectively, were held to violate the state's constitution by judges on the Los Angeles County Superior Court in 2022. This paper examines the market reaction to these surprising court decisions, finding that California firms appreciated significantly on the days of the rulings, and there is evidence that firms that were not in compliance with the laws exhibited larger abnormal returns than firms that were in compliance.
And here is a summary of some of the study's conclusions:
Those who advocate for more diversity on corporate boards generally claim that more diverse boards improve firm performance, and they claim that identifying, attracting, and retaining female and minority board members will not generate large costs. Supporters of diversity mandates, such as those adopted in California, at least implicitly suggest that firms are unwilling to exploit this diversity premium without legal intervention. The market reaction to the invalidation of California's board diversity mandates suggests otherwise.
When California judges found AB 979 and SB 826 to be in conflict with the equal protection clause of the state's constitution, firms headquartered in California appreciated in value, with non-compliant firms gaining more than compliant firms. Because the court decisions arguably had no repercussions for other changes in corporate law and regulation in the state, which cannot be said with as much confidence for the original adoption of these mandates, these results improve confidence in the conclusion that board diversity mandates do not improve firm value and, perhaps, they even lead investors to lower their valuations.
Whatever the other merits of Board diversity mandates, from this study they do not appear to enhance firm value.
Student Suspended for Creating—but Not Sharing—Nudified Deepfakes of Classmates
The N.Y. Commissioner of Education has just reversed the decision.
From Appeal of P.M. & E.M., decided Tuesday by the N.Y. Commissioner of Education (Betty Rosa):
Petitioners challenge a determination of the Board of Education of the Mount Pleasant Central School District ("respondent") imposing discipline on their child (the "student")….
The student attended ninth grade in respondent's high school at the time of the events giving rise to this appeal. On February 14, 2024, the district received reports that certain "male students had used an artificial intelligence application to create nude images of [several] female classmates and … shared them with other students." Respondent's investigation implicated the student….
The student admitted that he created three images but stated that he did not show, or share them with, anyone else. The student also admitted that he told several classmates about a website where such images could be created. The student additionally indicated that he had deleted the three images.
Colorado Appellate Courts "Disapproving" Lower Court Decisions That Led to Acquittal
Generally speaking, the Double Jeopardy Clause precludes the government from appealing an acquittal (whether an acquittal by a jury or by a judge). Once you're acquitted, you're off the hook, even if the trial judge erred in instructing the jury, in deciding whether there was sufficient evidence, in admitting evidence, in refusing to admit evidence, or the like.
But I just learned that, for the last 100 years, Colorado has allowed the prosecution to appeal acquittals, even though the appeal couldn't affect the result. Indeed, the bottom line decision wouldn't be "judgment affirmed" or "judgment reversed" (since the judgment of acquittal couldn't be reversed)—rather, it would be "judgment approved" or "judgment disapproved."
The prosecution's goal in such a case would presumably be to try to set a precedent that would foreclose similar errors in the future. Of course, if the judgment is approved because the appellate court agrees with the trial court, then this would set a precedent that would encourage such trial court decisions in the future.
Here's an explanation from People v. Cox (Colo. App. 2021):
One Step Closer
"Make sure government officials know they can corruptly line their pockets so long as they kiss the ring?" - Check
Trump has now implemented chapter 4 from "How to Be an Authoritarian": assure all other government officials that if they cooperate with you they will be effectively immune from federal criminal prosecution for bribery and corruption (and, presumably, other malfeasance). DOJ orders the US Attorney for SDNY to drop the bribery and corruption charges against Mayor Eric Adams of New York; Mayor Adams allows ICE agents into the Rikers Island detention center. Nice!
US Attorney Danielle Sassoon's resignation letter to A.G. Bondi in the Eric Adams is a small masterpiece of legal writing and legal reasoning, and a very, very serious indictment of the DOJ's actions here. Please do read it for yourself. [UPDATE: Apparently this is paywalled; here is an unpaywalled copy of Sassoon's letter]
We sure are lucky to have a President who took such a strong stand against the "weaponization" of the Department of Justice.
System Errors and Due Process
How can government agencies better safeguard procedural due process rights?
As Supreme Court Justice Felix Frankfurter put it: "The history of American freedom is, in no small measure, the history of procedure." The scale of threats to due process, however, has greatly expanded. And so have the opportunities to correct uses of wholly error-prone systems by government, in ways that harm our liberty and property rights.
In Minnesota, a recent federal lawsuit alleges that a private insurer illegally denied "elderly patients care owed to them under Medicare Advantage Plans" by deploying an AI model known to have a 90% error rate, to override determinations by physicians. The tool is proprietary, and the company denied requests from patients or physicians for more information; I am aware of no independent research evaluating its performance. If the allegations are correct, then the model, used in many states, could have resulted in errors in millions of cases. (Federal regulations, made effective in 2024, now forbid exclusive reliance on AI to make such determinations.)
Another significant source of error involves not an automated system operating alone, but the way human decision-makers rely on something automated. As NIST has explained, in the context of facial recognition technology, "what matters then is the human response," because the human police officer will review the candidate photos that the system pulls to decide whether any of them is a suspect. The system may score the images, or call the level of match "strong," using unclear criteria, and, as the National Academy of Sciences concluded in a landmark 2024 report, such interpretations "can prejudice or bias human review of images." The evidence on the interaction of these systems and the people that use them is limited, but what research has been done suggests that people can be very bad at recognizing a face from a series of images. Even in a setting when the task was to examine high-quality passport photos, participants made errors 50 percent of the time. Eyewitness misidentifications are a leading cause of wrongful convictions, and it is well understood that suggestive police lineups can alter the memory of an eyewitness. And we know that false arrests can and have resulted from the use of untested facial recognition systems. Except in a handful of states that have passed some regulations, the roll-out of facial recognition has occurred freely.
Today in Supreme Court History: February 14, 1845
2/14/1845: Justice Samuel Nelson takes judicial oath.
Invoking Scalia in the Sovereign District
Acting Deputy Attorney General Emil Bove instructed Danielle Sassoon, the Acting U.S. Attorney for SDNY, to dismiss the indictment against New York City Mayor Eric Adams without prejudice. I wrote about that instruction here.
Sassoon refused, and resigned. Bove accepted her resignation. There is much to say about these letters. Here, I will focus on one small part.
Sassoon stresses that she clerked for Justice Scalia:
I am also guided by the values that have defined my over ten years of public service. You and I have yet to meet, let alone discuss this case. But as you may know, I clerked for the Honorable J. Harvie Wilkinson III on the U.S. Court ofAppeals for the Fourth Circuit, and for Justice Antonin Scalia on the U.S. Supreme Court. Both men instilled in me a sense of duty to contribute to the public good and uphold the rule of law, and a commitment to reasoned and thorough analysis. I have always considered it my obligation to pursue justice impartially, without favor to the wealthy or those who occupy important public office, or harsher treatment for the less powerful.
Here, Sassoon is invoking the authority of Justice Scalia to defend her decision. As a general matter, I find it somewhat obnoxious how people define themselves by their clerkships--especially Supreme Court clerkships. This is the first job you had out of law school, and were hired largely based on grades and recommendations from elite professors. Clerking on any court, and the Supreme Court in particular, is in no sense a measure of who you are as a person. We over-fetishize clerking.
Yet, I find this invocation especially obnoxious, because she is implying that Justice Scalia would support what she is doing. How does she know? Did she hold a seance? It is all well and good to think WWND (What would Nino do?) but we really have no clue. Justice Scalia in 1986 was different than Justice Scalia in 2001 and Justice Scalia in 2016. And, I would wager, had Justice Scalia lived through what happened over the past decade, he would be pretty close to where Justice Thomas is.
The bigger problem, of course, is that Justice Scalia dissented in Morrison v. Olson. He was the OG unitary executive theorist. I think Sassoon's letter, on behalf of the Sovereign District, is the antithesis of the unitary executive theory. And Bove's response makes that point well:
In your letter to the Attorney General, you made the dubious choice to invoke Justice Scalia. As you are likely aware from your professional experience, Justice Scalia fully understood the risks of weaponization and lawfare:
Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.
Morrison v. Olson, 487 U.S. 654, 713 (1988) (Scalia, J., dissenting). While the former U.S. Attorney is not a special counsel, Justice Scalia's Morrison dissent aptly summarized the Department's weaponization concerns here.
Bove is right. There is no need to bring your former boss into this scenario, and if you do, you better make it stick.
I've so far ignored the fact that Sassoon invoked her clerkship to Judge J. Harvie Wilkinson. Wilkinson gave tacit support to Sassoon's ultimate decision in the New York Times:
The first, J. Harvie Wilkinson III of the federal appeals court for the Fourth Circuit, in Richmond, Va., recalled Ms. Sassoon as whip-smart and versatile — equally at home in the higher precincts of appellate law and before a jury.
He said he would not comment "in any way, shape or form" on decisions that Ms. Sassoon faced in the Adams case or in others. He added: "All I would say is that Danielle is someone who's very principled and rigorously honest and plays it straight."
I think back again to the moment that George W. Bush had to choose between John Roberts, Mike Luttig, and J. Harvie Wilkinson. All things considered, Bush made the least worst choice.
OpenAI: "AI Should Empower People to Explore, Debate, and Create Without Arbitrary Restrictions—" …
"no matter how challenging or controversial a topic may be."
From OpenAI's "Sharing the latest Model Spec," posted yesterday:
The updated Model Spec explicitly embraces intellectual freedom—the idea that AI should empower people to explore, debate, and create without arbitrary restrictions—no matter how challenging or controversial a topic may be. In a world where AI tools are increasingly shaping discourse, the free exchange of information and perspectives is a necessity for progress and innovation.
This philosophy is embedded in the "Stay in bounds" and "Seek the truth together" sections. For example, while the model should never provide detailed instructions for building a bomb or violating personal privacy, it's encouraged to provide thoughtful answers to politically or culturally sensitive questions—without promoting any particular agenda. In essence, we've reinforced the principle that no idea is inherently off limits for discussion, so long as the model isn't causing significant harm to the user or others (e.g., carrying out acts of terrorism).
The Model Spec itself is long and complex, and is certainly not entirely viewpoint-neutral, e.g.,
Do not contribute to extremist agendas that promote violence
The assistant must not create content that praises, endorses, or aids extremist agendas that promote violence. However, it may provide critical, discouraging, or factual discussions of such topics in contexts like news reporting, historical analysis, or education….
Avoid hateful content directed at protected groups
Did the Truman Administration Disobey A Federal District Court Injunction In Youngstown?
The District Court injunction did not stay its ruling, but the Court of appeals did shortly thereafter.
Most of the current rhetoric about an apparent "constitutional crisis" is woefully misinformed. For starters, President Trump cannot possibly have ignored any court order because no court order runs against him. Even if Trump has been a named defendant, any injunctions would apply to members of his administration, not the apex official. Moreover, Trump's Justice Department has dutifully appealed every adverse ruling (as best as I can tell). I've seen no evidence that Trump, or anyone in his administration, has given an order to ignore a court ruling. Some judges ordered immediate compliance, but that sort of demand is simply not realistic. The federal government cannot change direction so quickly in the face of many litigation demands. We saw these dynamics during the travel ban litigation. Attorney General Sessions described the nationwide injunction as an order to turn a battleship around 180 degrees immediately. It cannot be done.
But let's assume, at least for a moments sake, a hypothetical. A district court issues a preliminary injunction against the executive branch. The government asks for a stay, and the district court declines to grant a stay. The government then promptly asks the circuit court for an administrative stay, which is granted the following day. For the twenty-four hour period between the injunction and the stay, the government was out of compliance with the injunction. Is this the sort of "constitutional crisis" that so many people are worried about? Should not the government have at least a little wiggle room, or grace, while seeking review from a higher court?
This is not a hypothetical. It is real. Consider the procedural posture of the Youngstown Sheet & Tube Co. v. Sawyer (1952). In the landmark Steel Seizure Case, President Truman ordered the Secretary of Commerce to take over steel mills to avert a labor strike. As all know, the Supreme Court declared this seizure to be unconstitutional. But the path from the District Court to the Supreme Court is not well understood. Here is how the Justice Black's majority opinion describes the posture:
Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from "continuing the seizure and possession of the plant * * * and from acting under the purported authority of Executive Order No. 10340." 103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court's injunction. 197 F.2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. 343 U.S. 937, 72 S.Ct. 775.
I think the Court was slightly off with the chronology. The District Court injunction was issued on April 29. The D.C. Circuit entered (what was effectively) an administrative stay on April 30, and granted a stay of the injunction on May 2. But whether it was a few days or a few hours, the fact remains: for at least some period of time, the government held the steel mills in violation of a court order.
Did the Truman administration create a constitutional crisis by not immediately complying with a district court order, while seeking appellate review? Of course not. It was impossible for the government to return control of the steel mills while the appeal was processing. Turning off steel furnaces is not like flipping a switch.
For what it's worth, the D.C. Circuit panel was divided. The en banc court split 5-4 on whether to grant a stay. Had the D.C. Circuit not granted the stay, what would the Truman Administration have done? Could the Administration have relinquished control of the steel mills during an appeal to the Supreme Court? Would it even be possible to turn off the furnaces safely in that period of time? Again, I do not think there would be a constitutional crisis.
I think a constitutional crisis can occur in a specific context: there is an adverse judgment against the government, and the government continues the enjoined activity without dutifully seeking an appeal. Of course, if it is the Supreme Court that ruled against the government, there is no further judicial appeal available. There is only an appeal to the people, or, as the flag says, an appeal to heaven.
Sally Satel on "Recent Efforts to Silence 'Zionist'" Therapists
From Dr. Satel, a noted author (and occasional guest-blogger):
A week before her mother called, Zoe had seen a therapist for her first session. She told the new therapist that she'd just been in Israel and was now eager to focus on her personal problems. "Wow. It's good you were assigned to me," the therapist said. "No one else in this practice will treat a Zionist." …
After October 7, 2023, the Jewish Therapist Collective received a sharp increase in calls from Jewish therapists saying, as shared by the collective's director Halina Brooke, that they were "sidelined or fired from their mental health workplaces due to being Jewish." Jewish therapy trainees, according to Brooke, were "told that their presence is triggering to non-Jewish therapists."
Likewise, Chicago-based psychologist Allison Resnick wrote in Kesher, the journal of the Association of Jewish Psychologists, that she routinely reads about "therapists being told to conceal their Jewishness for fear of offending colleagues and clients."
Last March, in Resnick's backyard, a therapist with the Chicago Anti-Racist Therapists Facebook group organized a "blacklist" of local Zionist therapists. "I've put together a list of therapists/practices with Zionist affiliations that we should avoid referring clients to," wrote Heba Ibrahim-Joudeh to her colleagues. "I'm certain there are more out there." (The Illinois Department of Financial & Professional Regulation is currently investigating Ibrahim-Joudeh for engaging in "dishonorable, unethical, or unprofessional conduct.")
Trump Administration's Position on President's Power to Remove Commission Members
From the letter sent yesterday to Senator Richard Durbin (the ranking minority member on the Senate Judiciary Committee) by Acting Solicitor General Sarah M. Harris:
Re: Restrictions on the Removal of Certain Principal Officers of the United States …
Pursuant to 28 U.S.C. 530D, I am writing to advise you that the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality. Specifically, the Department has determined that the statutory tenure protections for members of the Federal Trade Commission (FTC), 15 U.S.C. 41, for members of the National Labor Relations Board (NLRB), 29 U.S.C. 153(a), and for members of the Consumer Product Safety Commission (CPSC), 15 U.S.C. 2053(a), are unconstitutional.
In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court recognized that Article II of the Constitution gives the President an "unrestricted" power of "removing executive officers who had been appointed by him by and with the advice and consent of the Senate." Id. at 176. In Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created an exception to that rule. The Court held that Congress may "forbid the[] removal except for cause" of members of the FTC, on the ground that the FTC exercised merely "quasi-legislative or quasi-judicial powers" and thus could be required to "act in discharge of their duties independently of executive control." Id. at 628-629. Statutory tenure protections for the members of a variety of independent agencies, including the FTC, the NLRB, and the CPSC, rely on that exception.
The Department has concluded that those tenure protections are unconstitutional. The Supreme Court has made clear that the holding of Humphrey's Executor embodies a narrow "exception" to the "unrestricted removal power" that the President generally has over principal executive officers and that the exception represents "'the outermost constitutional limit[] of permissible congressional restrictions'" on the President's authority to remove such officers. Seila Law LLC v. Consumer Fin. Protection Bureau, 591 U.S. 197, 215, 218 (2020) (citation omitted). Further, the Supreme Court has held, the holding of Humphrey's Executor applies only to administrative bodies that do not exercise "substantial executive power." Id. at 218-219. The Supreme Court has also explained that Humphrey's Executor appears to have misapprehended the powers of the "New Deal-era FTC" and misclassified those powers as primarily legislative and judicial. Id. at 218.
