The Volokh Conspiracy

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Justice Jackson Did Not Wear A Dissent Collar To The Inauguration. She Apparently Wore A Talisman To Ward Off Evil.

Does anyone still want to talk about Martha Ann Alito's flags?

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As I watched the Justices enter the Capitol Rotunda, I noticed that Justice Jackson was wearing a distinctive collar. I asked whether it was a dissent collar.

Remember, that RBG wore her dissent collar the day after Trump's 2016 election.

It may be even worse than I thought.

This report in Vogue (which I cannot vouch for) explains:

Over her black robes, the Justice wore a collar made of cowrie shells along with a pair of matching earrings. While the shell was used as currency in a variety of ancient cultures around the world, it was especially prized in African cultures, where it signified prosperity and protection. Meanwhile, the National Museum of African American History and Culture notes that, in America, the shell is thought to be a totem used to resist enslavement. Justice Jackson herself is a descendant of enslaved people. The connection feels particularly prescient on Martin Luther King Jr. Day, which happened to coincide with the Inauguration. (This has only happened once before, on Bill Clinton's 1997 Inauguration Day.)

Beyond its status as a protective talisman, the cowrie is also associated with womanhood and fertility. During his first term, Trump—who was found liable for sexual abuse in May 2023—made continuous efforts to erode women's rights, which included appointing Brett Kavanaugh, who was accused of attempted rape, to the Supreme Court. Even after Trump left office, his insidious, anti-women agenda continued to rear its head when the conservative-leaning Supreme Court overturned Roe v. Wade in June 2022.

While Justice Jackson has yet to explain the exact meaning of her Inauguration collar, the cowrie shell's multiple meanings point to a sartorial expression of her dissent.

The Justice's symbolic choice followed in the tradition of the late Supreme Court Justice Ruth Bader Ginsburg, whose roster of collars communicated her opinions—from the beaded jabot she wore to read a majority ruling, to the metallic necklace that telegraphed her dissent. While she has been photographed on the bench in a variety of statement-making jabots, Justice Ketanji Brown Jackson's collar for President Trump's swearing-in ceremony sent a particularly powerful message.

Others made the same observation.

Above the Law blares that "Ketanji Brown Jackson Wears Protection From Evil At Trump's Inauguration."

Even if Justice Jackson did not intend to convey this message, there is clearly the (literal) appearance of impropriety. This is not just, as I thought, a fashion faux pas.

Yet, there is not a word about whether this move violates any ethical rules. People praise Jackson like they praised Ginsburg's political sartorial choices. Remember, Justice Jackson is attending the Inauguration, only a few yards away from Trump. But she apparently deems it necessary to wear a talisman to ward off evil? Will Jackson face any recusal motions for all Trump-related cases? Jackson, of all members, should be grateful there is no "binding" Supreme Court ethics code.

Meanwhile, there are never-ending efforts to attack Justice Alito based on the non-political flags his wife chose to fly at their home. Remember almost every single attack on "legal ethics" is just interference, and an attempt to force conservative justices to recuse. There is no there there.

Kelo

Our Amicus Brief Urging the Supreme Court to Hear Case on Overruling Kelo v. City of New London

The brief is on behalf of the Cato Institute and myself.

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Susette Kelo's famous "little pink house,"which became an iconic symbol of the Kelo case. (Institute for Justice)

 

Last month, I wrote about Bowers v. Oneida County Industrial Development Agency, a case in which the Institute for Justice seeks to  persuade the Supreme Court to overrule Kelo v. City of New London (2005). Kelo was the controversial case in which the  Court held that the government could use eminent domain to take property in order to promote private "economic development." Although the Fifth Amendment states the the government may only take private property for "public use," a narrow 5-4 Supreme Court majority built on earlier precedents to rule that virtually any potential public benefit qualifies.

Today, the Cato Institute and I filed an amicus brief urging the Court to take the case. Here is a summary of our argument that I prepared for the Cato website:

Bowers Development, LLC was under contract to purchase land in Utica, New York, planning to construct a medical office building.  Central Utica Building, LLC, a business competitor to Bowers—asked the Oneida County Industrial Development Agency ("OCIDA") to condemn the land so that Respondent could build a parking lot for a medical office building on adjoining property. Because Central Utica's project might stimulate the local economy, and improve the community, OCIDA agreed to condemn the land and give it to Central Utica. Bowers objected to this private-to-private taking as beyond the scope of the Fifth Amendment's Public Use Clause, which only allows the use of eminent domain to take property for a "public use."  A New York state court upheld the taking because it was "rationally related to a conceivable public purpose," namely "mitigating parking and traffic congestion." . The Appellate Division based its ruling in part on Kelo v. City of New London, 545 U.S.  (2005).

Kelo is one of the most severely flawed and much-criticized decisions in modern Supreme Court history. The Court's holding that private "economic development" qualifies as a "public use" sufficient to authorize the use of eminent domain to take private property is deeply at odds with text and original meaning, and based on a variety of other errors. Justice John Paul Stevens, author of the Court's majority opinion in Kelo, later admitted its reasoning was based, in part, on an "embarrassing to acknowledge" error in interpreting previous precedent.

In addition, Kelo has generated widespread confusion in state and lower federal courts because of its lack of clarity on what qualifies as a "pretextual" taking that remains invalid even under the Court's otherwise highly deferential approach to review of condemnations under the Public Use Clause.

Part I outlines the confusion Kelo has created in the lower courts. State and federal courts have adopted five distinct approaches to determining what qualifies as a pretextual taking. Some emphasize the subjective intentions of the government officials who decided to condemn the property; some focus on the distribution of benefits from the condemnation; some on whether there is a private beneficiary whose identity is known in advance; some on the extent of the planning process behind the taking; and some adopt a posture of near-total deference.

Part II explains how this case is an excellent vehicle for resolving the confusion. All four of the possible indicia of a pretextual taking identified by lower courts are present: dubious intentions, a highly skewed distribution of benefits, a known private beneficiary, and the absence of any extensive planning process. Thus, the Court can use the case as an opportunity to consider the relative significance of these factors.

Part III outlines the reasons why the Court should take this opportunity to overrule Kelo. The ruling is deeply at odds with the text and original meaning of the Public Use Clause. It also includes other serious errors in reasoning, including a crucial one admitted by Justice Stevens, author of the Court's majority opinion.

Overruling Kelo would be consistent with the Supreme Court's precedent on criteria for reversing previous decisions, as outlined in rulings such as Knick v. Township of Scott (2019). Reversing Kelo would also help resolve the confusion engendered by the ruling's vague criteria for determining what qualifies as a pretextual taking.

The Supreme Court should grant the petition, and overturn Kelo. Even if the Court does not wish to reverse Kelo, it should still grant the petition to clarify the proper standard for pretextual takings.

The brief is partly based on arguments developed in my book about the Kelo case, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Foreign Emoluments, and Incompatibility Clauses

Everything you ever wanted to know about the Foreign Emoluments Clause.

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Exactly eight years ago, President Trump was sued for violating the Foreign Emoluments Clause. Most people had never heard of this provision of the Constitution. Ultimately, none of the various cases made it to a final judgment. President Biden's inauguration in January 2021 ended all of the litigation.

Four years later, we expect litigation over the Emoluments Clause to resume at any minute.

I am happy to share the fifth installment of my ten-part series with Seth Barrett Tillman on the offices and officers of the Constitution.

Josh Blackman & Seth Barrett Tillman, Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Incompatibility, and Foreign Emoluments Clauses, 63(3) S. Tex. L. Rev. 237–425 (Oct. 2024), <https://ssrn.com/abstract=4527680>;

Here is the abstract:

The Constitution of 1788's original seven articles include twenty-two provisions that refer to "offices" and "officers." Some clauses use the words "office" or "officer," standing alone and unmodified. Other clauses use the word "office" or "officer" followed by a modifier, such as "of the United States," "under the United States," or "under the Authority of the United States." We refer to the language in these twenty-two provisions as the Constitution's divergent "office"- and "officer"-language.

This Article is the fifth installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution's divergent "office"- and "officer"-language. The third installment analyzed the phrase "Officers of the United States," which is used in the Appointment Clause, Impeachment Clause, Commissions Clause, and Oath or Affirmation Clause. The fourth installment traced the history of the "Office . . . under the United States" drafting convention.

This fifth installment will discuss how the "Office . . . under the United States" drafting convention is used in the Constitution. The Appointments Clause defines the phrase "officers of the United States." The Constitution, by contrast, does not provide a similar definition for the phrase "Office . . . under the United States." Here, the Framers relied on a phrase that was not expressly defined in the Constitution. This decision has led to some confusion. Of course, the phrase "Office . . . under the United States" is not unique in this way. The Framers used other such phrases that were not expressly defined by the Constitution's text. Rather, these phrases took their meaning from historical usage.

We also took a very deep dive in gifts given to Presidents. Much of this research, as best as we can tell, has not been published in the context of the Foreign Emoluments Clause. Here is a summary:

Section V traces the relationship between the Foreign Emoluments Clause and the presidency, from Washington to Trump. In total, we will discuss foreign gifts given to more than thirty presidencies. We divide these presidencies into seven categories. Only a handful of these foreign gifts have been studied in past scholarship and litigation concerning the Foreign Emoluments Clause. Category #1 includes four presidents from the Early Republic, who took actions that are consistent with our position that the President is not subject to the Foreign Emoluments Clause: Presidents George Washington, Thomas Jefferson, James Madison, and James Monroe. Category #2 includes presidents who expressly asked Congress to dispose of foreign gifts: Presidents Andrew Jackson, Martin Van Buren, John Tyler, and Abraham Lincoln. Category #3 includes presidents who unilaterally disposed of foreign gifts in government archives: Presidents John Quincy Adams, Abraham Lincoln (yes, Lincoln again), and Rutherford B. Hayes. Category #4 includes six presidents who unilaterally donated foreign state gifts to the Smithsonian Institute: Presidents Franklin Pierce, James Buchanan, Andrew Johnson, Grover Cleveland, Theodore Roosevelt, and Calvin Coolidge. Category #5 includes presidents who (likely) accepted foreign gifts and did not surrender them. We hedge for reasons that will be discussed below. Category #6 discusses four first ladies who accepted valuable foreign gifts: Mary Todd Lincoln, Eliza Johnson, Eleanor Roosevelt, and Jacqueline Kennedy. Category #7 turns to three modern presidents: Presidents Richard Nixon, Barack Obama, and Donald Trump. Admittedly, the chronology does not follow a straight path. It seems presidential efforts to comply with the Foreign Emoluments Clause peaked in the 1830s—and went downhill from there. There are no clear streams of authority. The history is a muddled puddle. Section V concludes by trying to make sense of these categories with two principles: practices during the Early Republic are more probative than later-in-time practices; and traditions of defiance trump traditions of surrender.

We expect to publish Part VI in 2025, and the remaining four parts to follow in due course.

Why Did Merrick Garland Want To Release Volume II Of The Smith Report To Ranking Members of Congress?

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Today, Judge Cannon granted an emergency motion to block the release of Volume II of the Jack Smith report to ranking members of Congress. One lingering question I have had for some time is why Attorney General Garland wanted to transmit the report to congressional leaders. Judge Cannon explains that the government could not identify any reason:

With respect to the Department's assertion of congressional interest in Volume II, there has been no subpoena by Congress for review or release of Volume II. There is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case. There is, however, a recent letter by some of those same members urging Attorney General Garland to release Volume II to the public immediately, even if doing so requires dismissal of the charges as to Defendants Nauta and De Oliveira. Finally, although the Department refers generally to "legislative interest" concerning special counsels as a basis to deny Defendants' Emergency Motion as to Volume II [ECF No. 703 p. 3 n.2], the Department has identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now.

At most, the government implied that Attorney General Garland wanted to transmit the report before his term concluded:

According to the Department, this in camera disclosure to four members of Congress is necessary right now—before the conclusion of criminal proceedings—because Attorney General Garland has "limited time" left in his tenure as the head of the Department and wishes "to comply with the historical practice of all Special Counsel," and also because there is "legislative interest in information about Special Counsel investigations, in order to consider possible legislative reforms regarding the use of special counsels" [ECF No. 703 p. 3 n.2].11 These statements do not reflect well on the Department. There is no "historical practice" of providing Special Counsel reports to Congress, even on a limited basis, pending conclusion of criminal proceedings.

Indeed, there is no indication that Jack Smith himself wanted to transmit the report to Congress:

Special Counsel Smith left no indication in his report or in his transmittal letter to Attorney General Garland that he favored congressional release or review of his report prior to conclusion of criminal proceedings [ECF No. 693-1 p. 5]. . . . In short, the Department offers no valid justification for the purportedly urgent desire to release to members of Congress case information in an ongoing criminal proceeding.

When the government cannot provide a valid reason for their actions, they do not have. valid reason for their actions.

During the tax return litigation, various congressional committees made requests for Trump's tax returns to aid in the development of legisation. That justification was always a pretext. They wanted to release the tax returns as a way to harm Trump. Indeed, while there was unified Democratic control of government, was there any serious effort to actually pass legislation concerning the President's tax returns? One bill never even made it out of committee.

One wonders why Attorney General Garland was so intent on giving this report to Democratic members of Congress. Even if the document was reviewed in camera, nothing would prevent the members from talking about it to the press. Judge Cannon explains:

And if Volume II gets released in whole or in part to the public in contravention of those promises, the Department assures, then Defendants need not worry because this Court can "cure" any damage caused by crafting jury instructions in the future and/or dismissing the charges [ECF No. 703 pp. 5–6]. These assertions flounder on multiple levels and do nothing to detract from the obvious. Given the very strong public interest in this criminal proceeding and the absence of any enforceable limits on the proposed disclosure, there is certainly a reasonable likelihood that review by members of Congress as proposed will result in public dissemination of all or part of Volume II. See S.D. Fla. L.R. 77.2(a). That reasonable likelihood risks substantial prejudice to the due process rights of Defendants, who remain subject to the protective order in this case [ECF No. 27]. This Court lacks any means to enforce any proffered conditions of confidentiality, to the extent they even exist in memorialized form. And most fundamentally, the Department has offered no valid reason to engage in this gamble with the Defendants' rights. The bare wishes of one Attorney General with "limited time" in office to comply with a non-existent "historical practice" of releasing Special Counsel reports in the pendency of criminal proceedings is not a valid reason. And surely it does not override the obvious constitutional interests of Defendants in this action and this Court's duty to protect the integrity of this proceeding.

Moreover, since the report would be kept sealed, the press could not verify or "fact check" whatever those Democrats said. The ranking members would have the final say on the matter. If Garland found it so important to release the report, he could have dismissed the indictments against the two co-defendants. But they are intent on having Judge Cannon's decision vacated, so they cannot do that.

Judge Cannon concludes:

Prosecutors play a special role in our criminal justice system and are entrusted and expected to do justice. Berger v. United States, 295 U.S. 78, 88 (1935); Banks v. Dretke, 540 U.S. 668, 696 (2004); Robert H. Jackson, Attorney General of the United States, Speech to the U.S. Department of Justice, The Federal Prosecutor (Apr. 1, 1940), available at https://www.justice. gov/ag/speeches-attorney-general-robert-houghwout-jackson. The Department of Justice's position on Defendants' Emergency Motion as to Volume II has not been faithful to that obligation.

I realize it is popular to dismiss Judge Cannon as a partisan hack. But her efforts here have uncovered a glaring hole in the supposed neutrality of Merrick Garland's prosecution. Did Garland ever actually resign? Was he removed?

A common theme that we have seen, again and again, is that to save democratic norms from Trump, we must destroy democratic norms to stop Trump. Rinse and repeat.

Donald Trump

Trump's Birthright Citizenship Order is Even Worse than Expected - and Even More Blatantly Unconstitutional

It applies to children of large numbers of legal visa-holders, as well as those of undocumented immigrants.

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Yesterday, I pointed out that Trump's promised executive order denying birthright citizenship to undocumented immigrants was likely to be unconstitutional because it blatantly violates Section 1 of the 14th Amendment, which grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." We now have the text of the order, and it is even worse than expected.

The order doesn't just deny birthright citizenship to children of migrants who entered the US illegally. It also denies it to children of those who entered the US on perfectly legal temporary work and tourism visas. As Reason immigration writer Fiona Harrigan explains, this will affect children of many thousands of work visa holders, including H-1B visa holders much-loved by Elon Musk, among others.

In a recent Just Security article, I critiqued the (very weak) arguments that children of undocumented immigrants aren't entitled to birthright citizenship because they are not "subject to the jurisdiction" of the United States. These arguments are even more absurd when it comes to children of legal visa holders. The latter and their parents are completely subject to US laws, arguably even more so than the undocumented. And the weak argument that children of undocumented immigrants don't qualify because their parents are "invaders" is still more ridiculous when it comes to children of people who entered legally.

The executive order only applies to children born after February 19 of this year. But if the legal logic behind it is sound, nothing would prevent the administration from applying it retroactively. Indeed, if children of these types of immigrants really are excluded from birthright citizenship, retroactive application might be constitutionally required.

If the order stands, it would also create a bureaucratic morass that threatens to engulf even children of native-born citizens. In order to secure citizenship for your child, it would no longer be enough to provide documentation of parentage or place of birth. You would also presumably need to show the parents had the appropriate legal status - and their parents before them, potentially all the way back to the first member of the family who entered the US, perhaps decades or centuries ago. After all, if there is even one break in the legal status of the family tree, it could potentially render succeeding generations ineligible for birthright citizenship! At the very least, this is likely to be a serious burden for poorer and lesser-educated parents, who may not have easy access to documentation going back decades.

Lawsuits challenging the order have already been filed by the ACLU (on behalf immigrant groups), and 18 state governments. I won't go into the procedural issues in detail. But I expect many, if not all, these plaintiffs will have standing to sue, and overcome other procedural hurdles. This is particularly likely in the case of some of the ACLU clients, who are expectant mothers on temporary visas, scheduled to give birth after February 19. Supreme Court precedent on state government standing is murky. But I tentatively predict at least some of the states should be able to get standing based on the fact that the citizenship status of residents affects funding streams for various federal grants to the states.

I also hope and expect that courts will ultimately strike down this order.

 

How Presidents Theodore Roosevelt and Ronald Reagan Responded To Their Assassination Attempts

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Yesterday, I wrote about how George Washington and Donald Trump reacted to bullets missing them.

I thought to check on two other Presidents who survived assassination attempts.

On October 14, 1912, shortly before the presidential election, Theodore Roosevelt was shot at a campaign rally. The bullet was impeded by a copy of Roosevelt's speech and his glasses case. Roosevelt famously chose to continue delivering the speech. He began:

Friends, I shall ask you to be as quiet as possible. I don't know whether you fully understand that I have just been shot; but it takes more than that to kill a Bull Moose. But fortunately I had my manuscript, so you see I was going to make a long speech, and there is a bullet - there is where the bullet went through - and it probably saved me from it going into my heart. The bullet is in me now, so that I cannot make a very long speech, but I will try my best.

Here is a photograph of the manuscript and eyeglass case

Here is a statement from Theodore Roosevelt after his assassination in October 1912:

It is of course perfectly true that in voting for or against me consideration must be paid to what I have done in the past and to what I propose to do. But it seems to me far more important that consideration should be paid to what the Progressive Party proposes to do. I cannot too strongly emphasize the fact upon which we Progressives insist that the welfare of any one man in fight is wholly immaterial compared to the great and fundamental issues involved in the triumph of the principles for which our cause stands. If I had been killed, the fight would have gone on exactly the same.

Judge Ben Lindsey and the hundreds of other men now on the stump are preaching the doctrines that I have been preaching and stand for and represent just the same cause. They would have continued the fight in exactly the same way if I had been killed, and they are continuing it in just the same way now that I am for the moment laid up.

On March 30, 1981, President Ronald Reagan survived an assassination attempt. The following day, Reagan closed his diary entry with this sentence:

Whatever happens now I owe my life to God and will try to serve him in every way I can.

Free Speech

"TikTok's Tech Partners Face Massive Legal Risks by Relying on Trump's Promises Not to Enforce the Ban Law, …

as courts rarely protect defendants who count on executive non-enforcement," writes Prof. Alan Rozenshtein (Minnesota).

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An excerpt from his Lawfare post:

An important feature of the [entrapment-by-estoppel] doctrine in lower courts [on which the tech companies would presumably rely in any enforcement proceeding -EV] is that it incorporates a reasonableness requirement. This test demands not only that the government "affirmatively told the defendant that the proscribed conduct was permissible," but also that the defendant "reasonably relied on the government's statement"—i.e., if a defendant "sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries."

Courts could be expected to apply this reasonableness standard more stringently when evaluating claims by sophisticated actors. Corporate entities with substantial legal resources and regulatory expertise should face greater scrutiny of their reliance claims, as they possess the capacity to independently evaluate legal requirements rather than relying solely on executive statements….

The non-enforcement promise offers minimal security. As discussed above, courts rarely treat such promises as binding, even when defendants face serious consequences from relying on them. Trump could change his mind at any time or selectively enforce against companies that fall from political favor, and a future administration, taking advantage of the five-year statute of limitations, would almost certainly be free to pursue violations regardless of Trump's stance.

I'm not an expert on the subject, but I've generally found Prof. Rozenshtein's analyses to be quite thoughtful and interesting, so I thought I'd pass this along. Naturally, I'll be glad to also pass along links to serious contrary arguments.

Free Speech

Man Sues HBO, Claiming He Is the Pseudonymous Satoshi Nakamoto, Inventor of Bitcoin

But "[n]othing in Plaintiff's conclusory assertions suggest that Plaintiff could plead facts plausibly linking his identity with that of the pseudonymous Satoshi Nakamoto."

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From Chief Judge Laura Taylor Swain's decision in Swaby v. HBO (S.D.N.Y.) Friday:

Plaintiff Errol Jacob Jones Swaby, a citizen of California who appears pro se, … sues Home Box Office, Inc…. Plaintiff asserts state law claims of libel, and seeks the following alternative relief:

1) that [HBO] cease and desist [its] airing of [a documentary in which another person, not Plaintiff, is credited as the creator of Bitcoin, a person known under the pseudonym Satoshi Nakamoto] or 2) [HBO] can air it with an open apology to Satoshi Nakamoto for airing it and disregard his wish to separate himself from a tool built for civilization, or 3) air it and sign [Plaintiff to] an exclusive contract designating HBO as the only media outlet [Plaintiff] can respond to the public through as well as [to] an agreement to sit with [HBO] for one interview per month for the duration of 1 year. Afterw[a]rds[,] the contract can be renegotiated or withdrawn by either party. The contract must include a payment schedule of 25 million [dollars] upfront and 1 million [dollars] per completed interview.

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Property

Choice of Law in Takings Cases After Tyler v. Hennepin County (II)

The Court's approach to the choice of law question (or, federal courts doctrine for property lawyers).

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In yesterday's post, I recounted what happened in Tyler v. Hennepin County, Minnesota, and I restated questions lawyers might reasonably ask about the case. In Tyler, Chief Justice John Roberts, the author of the Court opinion, held that surplus equity—the proceeds left over after a creditor forecloses and sells real estate to pay off a debt—constitutes "private property" sufficient to support claims under the Takings Clause. To justify that conclusion, Roberts cited Magna Carta, a 17th-century Act of Parliament, Blackstone, a Founding Era act of the U.S. Congress, Founding Era state practice, its own precedents, and several Minnesota statutes about debtor-owners' rights in foreclosure proceedings. But the Court's justification will strike many lawyers as strange. Black-letter takings doctrine seems to hold that, "[b]ecause the Constitution protects rather than creates property interests, the existence of a property interest is determined by reference to existing rules or understandings that seem from an independent source such as state law." Why didn't the Court determine whether Tyler had property relying solely on the relevant Minnesota statute—which made clear that foreclosed-on owners don't retain property in surplus equity after foreclosure?

I am going to answer that question in two posts. I do so in large part because I suspect that different readers will bring different expectations to the relevant issues. For example, federal courts specialists might find the question I asked a bit overdrawn, or belaboring the obvious. If any such readers are having reactions like those, I ask them to bear with me today. Many property lawyers are asking the question I asked above, in the tone in which I asked it. Today, then, I'd like to recount choice of law principles that federal courts specialists know well, for the benefit of property lawyers. The property lawyers get their day tomorrow.

The nerve of the answer to my question comes in a passing quote in Tyler. Roberts paid lip service to the standard black letter in takings litigation; he granted that the Court "draws on 'existing rules or understandings' about property rights" when it determines whether plaintiffs have private property for constitutional purposes. But Roberts insisted that that black-letter rule has limits, that "state law cannot be the only source" of a claimant's property. To back that limit up, Roberts quoted a Sixth Circuit opinion in a similar case, by Judge Raymond Kethledge: "the Takings Clause would be a dead letter if a state could simply exclude from its definition of property any interest that the state wished to take."

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President Trump's Executive Order on the Death Penalty

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I have not seen much press about President Trump's order concerning the death penalty. But several provisions could prove to be quite significant.

First, Trump has ordered that the murderers with commuted sentence be placed in "appropriate" conditions:

The Attorney General shall evaluate the places of imprisonment and conditions of confinement for each of the 37 murderers whose Federal death sentences were commuted by President Biden, and the Attorney General shall take all lawful and appropriate action to ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.

I suspect any change of conditions will give rise to an Eighth Amendment condition of confinement challenge. (See Point #4 below on whether these cases will succeed.)

Second, Trump has directed the Attorney General to refer federal inmates for state prosecution. Remember, there is no statute of limitation for murder, and states remain free to punish defendants who had their federal sentences commuted.

The Attorney General shall further evaluate whether these offenders can be charged with State capital crimes and shall recommend appropriate action to state and local authorities.

There is an obvious case to refer. John Fitzgerald Hanson is serving a life sentence in federal prison in Louisiana. He was also sentenced to death in Oklahoma for two murders. In 2022, the Oklahoma Court of Criminal Appeals scheduled Hanson's execution for December of that year, but the Federal Bureau of Prisons refused to transfer him to the custody of the state because they found it was "not in the public interest." President Trump should permit the transfer of Hanson so the execution can be carried out.

There are also the strange cases of Shannon Agofsky and Len Davis. These death row inmates received commutations from President Biden, but have apparently refused to accept them. Indeed, they filed suit in the Southern District of Indiana to enjoin the commutations (Agofsky v. United States, No. 2:25-cv-00001; Davis v. United States, No. 2:25-cv-00002). On January 17, the District Court denied the preliminary injunction. The judge found that "The Supreme Court decided nearly one hundred years ago that an inmate need not consent to a commutation, and that decision remains good law." Biddle v. Perovich (1927) stated:

When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. See Ex parte Grossman, 267 U.S. 87, 120, 121. Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done. So far as a pardon legitimately cuts down a penalty, it affects the judgment imposing it

It isn't clear if there is anything that Trump can do here.

Third, Trump ordered the AG to provide states with the execution drugs:

Sec. 4. Preserving Capital Punishment in the States. (a) The Attorney General shall take all necessary and lawful action to ensure that each state that allows capital punishment has a sufficient supply of drugs needed to carry out lethal injection.

Many states have had trouble obtaining these drugs. Now the federal government will provide the states with what they'll need.

Fourth, saving the best for last, the President urges the AG to challenge Supreme Court precedents on the death penalty!

Sec. 5. Seeking The Overruling of Supreme Court Precedents That Hinder Capital Punishment. The Attorney General shall take all appropriate action to seek the overruling of Supreme Court precedents that limit the authority of State and Federal governments to impose capital punishment.

If there is any area of the law where stare decsisis has the weakest force, it is the Eighth Amendment. The "evolving standards" test is by design is inconsistent with original meaning. I think the Court's current conservatives will be lock solid on this issue. Well, at least five of them. Justice Barrett joined the liberals in a 2022 death penalty case from Alabama. And Barrett has shown a stronger affinity for stare decisis. But we can see challenges to the Court's jurisprudence.

President Trump Comments on President Biden's Pardons: "An Unbelievable Precedent"

"Well I guess now I have precedent to do it, but I don't want to do it..."

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Shortly after the inauguration, I observed that President Biden and his supporters would soon come to regret the Eleventh Hour pardons.

Monday evening, around 8:20 p.m., President Trump delivered these remarks about the pardons in the Oval Office (my transcription):

Trump: I was a little bit surprised he did it. It makes them look guilty. He will have to live with that. Now with that being said, it sets an unbelievable precedent, it creates poor precedent. But the precedent is unbelievable. Now maybe every president who leaves office they are going to pardon every person they ever met so they don't have some lunatic like deranged Jack Smith, whose a total lunatic by the way, not a smart guy, he's a dummy, but we beat the hell out of him. And I helped my reputation.

Question: Do you think you are going to have to do the same thing at the end of this

Trump: Well I guess now I have precedent to do it, but I don't want to do it, it makes you look very guilty. It makes Biden look very bad, very weak, very guilty.

What goes around comes around.

Short Thoughts on Several Of President Trump's Executive Actions

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I have now reviewed each of the new presidential actions signed by President Trump. Here, I will offer some short thoughts on some of the lower-profile orders. I'll address several of the more significant actions in different posts.

First, a common theme in the orders was a focus on protecting American values and ideals. The order reforming the hiring process for government service provides:

(b) This Federal Hiring Plan shall:

(i) prioritize recruitment of individuals committed to improving the efficiency of the Federal government, passionate about the ideals of our American republic, and committed to upholding the rule of law and the United States Constitution;

I suspect some applicants for federal employment will bring a First Amendment challenge. Is there some objective "ideal of our American republic"?

Second, the order ending DEI program anticipates that the Biden Administration simply renamed DEI programs after the election to avoid being cut. The President asks for programs that have been "misleadingly relabeled."

(A)  agency or department DEI, DEIA, or "environmental justice" positions, committees, programs, services, activities, budgets, and expenditures in existence on November 4, 2024, and an assessment of whether these positions, committees, programs, services, activities, budgets, and expenditures have been misleadingly relabeled in an attempt to preserve their pre-November 4, 2024 function;

The President also requests a list of:

(B)  Federal contractors who have provided DEI training or DEI training materials to agency or department employees; and

(C)  Federal grantees who received Federal funding to provide or advance DEI, DEIA, or "environmental justice" programs, services, or activities since January 20, 2021.

I wonder if the Trump Administration will investigate these grants, and perhaps attempt to claw back some of the funding.

Third, the gender ideology order seems to undermine a core tenet of Bostock:

(a)  "Sex" shall refer to an individual's immutable biological classification as either male or female.  "Sex" is not a synonym for and does not include the concept of "gender identity."

To be clear, Justice Gorsuch did not actually conclude that "gender identity" was equivalent to "sex." Gorsuch accepted, at least begrudgingly, the concept of biological sex. Rather, Bostock was premised on applying the but-for test to Title VII. I never found this standard persuasive, but that was in the past. Given this new order, I don't see how the Solicitor General maintains the government's position in Skrmetti. We should expect a new brief from the SG shortly. Let's see if the Court appoints an amicus to defend the government's prior position, or simply dismisses the case altogether.

The order also rejects the Biden Administration's extension of Bostock to Title IX.

(f) The prior Administration argued that the Supreme Court's decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.

I have not seen an order, yet at least, reversing the extension of Bostock to the Affordable Care Act. This Biden-era policy would require religious hospitals to perform transition surgeries. I suspect Trump will nix that policy.

Fourth, the order concerning Alaska denies a request for an "indigenous sacred site."

(xx)     deny the pending request to the United States Fish and Wildlife Service to an establish indigenous sacred site in the Coastal Plain of the Arctic National Wildlife Refuge;

No obvious justification is given for this denial. I don't know if there is a RFRA claim here. The Court has now relisted Apache Stronghold four times, so there may be a dissental in the works, probably from Justice Gorsuch. Dissenting about a denial of religious liberty for Indians is peak Gorsuch.

Fifth, Trump has determined that members of the Senior Executive Service must be removable at will:

The President's power to remove subordinates is a core part of the Executive power vested by Article II of the Constitution and is necessary for the President to perform his duty to "take Care that the Laws be faithfully executed." Because SES officials wield significant governmental authority, they must serve at the pleasure of the President.

Only that chain of responsibility ensures that SES officials are properly accountable to the President and the American people. If career SES officials fail to faithfully fulfill their duties to advance the needs, policies, and goals of the United States, the President must be able to rectify the situation and ensure that the entire Executive Branch faithfully executes the law. For instance, SES officials who engage in unauthorized disclosure of Executive Branch deliberations, violate the constitutional rights of Americans, refuse to implement policy priorities, or perform their duties inefficiently or negligently should be held accountable.

And Trump has called for the abolition of the current Executive Resources Board, and replace them with a majority of political appointees.

(d) Each agency head should terminate its existing Executive Resources Board (ERB), institute a new or interim ERB, and assign senior noncareer officials to chair and serve on the board as a majority alongside career members;

SES members who do not follow the Administration's priorities are to be removed:

(f)  Any agency head who becomes aware of an SES official whose performance or continued occupancy of the position is inconsistent with either the principles reaffirmed in this Order or their duties to the Nation under section 3131 of title 5, United States Code, shall immediately take all appropriate actions, up to and including removal of that official, with the support of OPM and OMB.  Restoring an accountable government workforce is a top priority of my Administration.

Sixth, President Trump ordered the revocation of John Bolton's security clearance, in part, due to Bolton's book:

National security is also damaged by the publication of classified information. Former National Security Advisor John R. Bolton published a memoir for monetary gain after he was terminated from his White House position in 2019. The book was rife with sensitive information drawn from his time in government. The memoir's reckless treatment of sensitive information undermined the ability of future presidents to request and obtain candid advice on matters of national security from their staff. Publication also created a grave risk that classified material was publicly exposed.

To remedy these abuses of the public trust, this Order directs the revocation of any active or current security clearances held by: (i) the former intelligence officials who engaged in misleading and inappropriate political coordination with the 2020 Biden presidential campaign; and (ii) John R. Bolton.

Sec. 2. Policy. (a) It is the policy of the United States to ensure that the Intelligence Community not be engaged in partisan politics or otherwise used by a U.S. political campaign for electioneering purposes. The term "Intelligence Community" has the meaning given the term in section 3003 of title 50, United States Code.

In the abstract, denying someone a governmental benefit due to their protected speech would violate the First Amendment. But there is a longstanding protocol in which people with security clearances must submit their books for pre-publication review. The argument is that people given this access to classified information surrender some of their First Amendment rights. Look for Bolton to file suit. As best as I can tell, he did not receive a pardon.

I will develop some of the other orders in future posts.

Time to Impeach Yet?

On pardoning the January 6 rioters.

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Reading The Debates in the Several State Conventions (as one does), I see the following:

Mr. GEORGE MASON: . . . You will please, says he, to recollect that removal from office, and future disqualification to hold any office, are the only consequences of conviction on impeachment. Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.

. . .

Mr. MADISON, adverting to Mr. Mason's objection to the President's power of pardoning, said . . . [t]here is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.

Since "a grave national injustice . . . has been perpetrated upon the American people," is anyone already keeping a list of impeachment-worthy offenses?

Free Speech

Executive Order Apparently Promises No Enforcement of TikTok Ban for 75 Days

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An excerpt from the order, which appears not to be the sort of 90-day extension contemplated by the Tiktok divestiture statute itself, but rather appears to be the exercise of the Executive Branch's enforcement discretion:

I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions. To fulfill those responsibilities, I intend to consult with my advisors, including the heads of relevant departments and agencies on the national security concerns posed by TikTok, and to pursue a resolution that protects national security while saving a platform used by 170 million Americans. My Administration must also review sensitive intelligence related to those concerns and evaluate the sufficiency of mitigation measures TikTok has taken to date.

The unfortunate timing of section 2(a) of the Act — one day before I took office as the 47th President of the United States — interferes with my ability to assess the national security and foreign policy implications of the Act's prohibitions before they take effect. This timing also interferes with my ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.

Accordingly, I am instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward in an orderly way that protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans…. In light of this direction, even after the expiration of the above-specified period, the Department of Justice shall not take any action to enforce the Act or impose any penalties against any entity for any conduct that occurred during the above-specified period or any period prior to the issuance of this order, including the period of time from January 19, 2025, to the signing of this order….

Read More

President Trump's "Weaponization" Executive Order

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President Trump signed another executive order, titled "Ending the Weaponization of the Federal Government." It provides, in part:

The prior administration and allies throughout the country engaged in an unprecedented, third-world weaponization of prosecutorial power to upend the democratic process. It targeted individuals who voiced opposition to the prior administration's policies with numerous Federal investigations and politically motivated funding revocations, which cost Americans access to needed services. The Department of Justice even jailed an individual for posting a political meme. And while the Department of Justice has ruthlessly prosecuted more than 1,500 individuals associated with January 6, and simultaneously dropped nearly all cases against BLM rioters.

The order instructs the Attorney General to investigate actions taken by DOJ, the SEC, the FTC, and recommend "appropriate remedial action."

The Attorney General, in consultation with the heads of all departments and agencies of the United States, shall take appropriate action to review the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States, including, but not limited to, the Department of Justice, the Securities and Exchange Commission, and the Federal Trade Commission, over the last 4 years and identify any instances where a department's or agency's conduct appears to have been contrary to the purposes and policies of this order, and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy and the Counsel to the President, with recommendations for appropriate remedial actions to be taken to fulfill the purposes and policies of this order.

It does not seem that President Biden gave a pardon to Jack Smith. Or maybe Smith and his team refused to accept pardons.

Smith's work can also be tested under the False Claims Act. If Jack Smith was not in fact holding a lawful position, then he submitted false claims to the federal government. And I think the forum for such a suit would be Fort Pierce. Whether or not private relators are appointed in violation of the Appointments Clause, the United States could bring suit. I do not know if Smith submitted any claims to the state of Florida, perhaps for travel or security concerns. Those claims could also trigger the Florida False Claims Act.

More

Recent Volokh Posts

1

Andrew McCarthy on the Hegseth Impeachment

2

S. Ct. Suspends District Court's Injunction Blocking Border Barrier Building

3

The Butler Didn't Do It

4

Justice Cody Hiland Publicly Criticizes The President For Nominating Him To District Court Instead of Eighth Circuit

5

Deference, the Insurrection Act, and Statutory History

6

U. Colorado Regent-vs.-Regents Lawsuit, Cannabis, Race, and Legislative Immunity

7

Plaintiffs Contesting Tren de Aragua Membership Claims / Alien Enemies Act Application Still Can't Sue Pseudonymously

8

Today in Supreme Court History: November 9, 1942

9

Open Thread

10

Talarico's Christianity

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