The Volokh Conspiracy

From my colleague and historian Stephen Kotkin at Hoover (formerly at Princeton):

As part of the Hoover History Lab's commitment to the development of educational programs that address the needs of high school students, we have recently launched an exciting new program, the Hoover History Skills Academy.

This Academy will provide high school students with an unparalleled two-week learning opportunity on the Hoover campus to master best practices for designing, researching, and writing a substantive historical research paper, taking advantage of the extraordinary historical materials in the Hoover Library and Archives.

Students may also submit their finished paper for possible publication in The Concord Review (our partner for this event) as a pre-collegiate academic accomplishment….

As there are only 24 seats available, we expect this program to fill up quickly. Interested students should apply ASAP.

Learn more about the program: Hoover History Lab Launches History Skills Academy For High School Students | Hoover Institution

Apply for the program:  History Skills Academy 2025 | Hoover Institution

Tuition ranges is $3950 for commuter students and $4950 for those who need room and board (plus a bit extra for PayPal payments). The tuition payments are to The Concord Review, which runs the camp; I'm told that Hoover doesn't get any of the revenue.

There's been a lot of recent legal action involving the Horseracing Integrity and Safety Authority. The Fifth Circuit found HISA unconstitutional in 2022; Congress changed the statute within about six weeks; in a parallel case, the Sixth Circuit found that the statutory change had fixed the problem; the Fifth Circuit found that the statutory change partially fixed the problem but still struck down HISA's enforcement (but not regulatory) power. Meanwhile, in yet another parallel challenge, the Eighth Circuit upheld HISA.

Because none of the parties in the latest Fifth Circuit iteration got exactly what they wanted, basically everyone is petitioning for cert—and what with the circuit split and the fact that the Fifth Circuit partly struck down a federal statute—a cert grant is very likely. But there's still some dispute about whether the cert grant should be limited to the "private nondelegation doctrine" question or also include an Appointments Clause question. I favor the latter approach, so I just filed a brief yesterday making this argument on behalf of the Reason Foundation (which owns the reason.com website that hosts this blog) and the Goldwater Institute. (My position on this supports that of the Gulf Coast Racing plaintiffs, represented by Ilan Wurman of University of Minnesota Law School, and Reeves Jordan, Greg Sapire, and Carlos Soltero of Maynard Nexsen PC.)

(For previous posts of mine on the topic, see here, here, here, and here. Also see my Notre Dame Law Review article, The Myth of the Federal Private Nondelegation Doctrine, which discusses these issues in depth.)

I reproduce the brief below, or you can read the nicely formatted version here.

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Summary of Argument

1. This case is obviously certworthy. The Horseracing Integrity and Safety Authority is an unaccountable agency that exercises significant federal rulemaking, investigation, and enforcement authority, even though its members haven't been politically appointed and even though it doesn't have meaningful oversight by any other agency. There is a circuit split on the private nondelegation issue. A circuit court has struck down part of a federal statute. Parties from both sides, including the federal government, agree that a grant of certiorari is warranted.

However, this Court shouldn't merely grant certiorari on the private nondelegation issue. It should also grant certiorari on the Appointments Clause issue, because these two issues are closely related, and the Fifth Circuit reached the incorrect result on each of these issues.

2. The Fifth Circuit was wrong that the Authority's enforcement power violates the "private nondelegation doctrine." There is no such doctrine. The idea that delegations of power to private parties are judged by a stricter standard than delegations to public parties has no support in any holdings of this Court. Any decisions that seem to the contrary have either been misinterpreted or were in fact based on other doctrines, like the Due Process Clause. And the lack of such a doctrine makes sense, because the nondelegation doctrine, which is rooted in Article I, sensibly asks whether Congress has given up too much power, not who the recipient of such power is.

If the Authority is considered a private organization, the delegation to the Authority should be judged by the same "intelligible principle" standard as a delegation to a public agency—and the delegation here clearly passes that test.

3. However, the Fifth Circuit reached the partially right result, though for the wrong reason. Contrary to the Fifth Circuit's holding, exercises of power by the Authority, whether rulemaking or enforcement power, violate the Appointments Clause, because the members of the Authority are Officers of the United States but weren't appointed as Officers should be under Article II.

That the Authority members are nominally private is unimportant for Officer status. The statutory labeling of the Authority as private, and the fact that the Authority is organized as a private organization under state law, are constitutionally irrelevant, and in any event Appointments Clause doctrine doesn't demand that an Officer formally be a public employee.

4. Even if public status were relevant to the Appointments Clause—and even if the Fifth Circuit were correct to assume that "state actor" status under the State Action Doctrine is relevant here—the Fifth Circuit still erred in holding that the Authority isn't a state actor. On the contrary, this is an easy case for state action, because rulemaking, investigation, and enforcement of federal law are traditionally exclusive public functions. Therefore, an alternative way of deciding the case would be to hold that the Authority is public because it is a state actor, which would uncontroversially activate both the Appointments Clause and the traditional (public) nondelegation doctrine.

5. The difference between the "private nondelegation doctrine" and the Appointments Clause isn't just of academic interest.

First, the doctrines are motivated by different theories. The nondelegation doctrine is giver-focused, asking whether Congress has given up too much power; the public-private question fits poorly with this concern. By contrast, the Appointments Clause is recipient-focused, asking, from a democratic accountability perspective, whether the recipient of major power has been validly authorized by the proper political process. The problem here fits more naturally with the Appointments Clause issue.

Second, the doctrines won't always produce the same results. A private nondelegation doctrine requires tough judgment calls about whether an organization is public or private, so the results will depend on the vagaries of public-private doctrines. And when the doctrine finds private status, it would apparently invalidate all delegations of "government power" that aren't subordinate to a public agency. Horsemen's I, 53 F.4th at 878. By contrast, the Appointments Clause asks whether someone (public or private) is "exercising significant authority pursuant to the laws of the United States." Thus, an Appointments Clause approach will turn on how much power the agent exercises, ignoring trivial cases and requiring political accountability for significant ones. This is a sensible approach—otherwise, countless private delegations could be indiscriminately invalidated, from qui tam suits to private prison contracting to incorporation of private actuarial standards into healthcare regulation. Whether these are valid should depend on an inquiry into "significant authority."

6. Therefore, this Court should grant certiorari on the Appointments Clause question.

This Court could reach the right result by only considering the Appointments Clause issue, because the correct resolution of that issue (that the Authority wields power unconstitutionally) would correctly resolve the entire case. But because parties from both sides, including the federal government, are asking the Court to consider the private nondelegation issue, and because that issue is obviously certworthy, amici ask that the private nondelegation and Appointments Clause issues be considered as linked and decided together.

The Sixth Circuit case (Oklahoma v. United States, No. 23-402) didn't consider the Appointments Clause at all, so it would not be a good vehicle for a grant of certiorari. By contrast, the Eighth Circuit case (Walmsley v. FTC, No. 24-420) did consider the Appointments Clause, essentially incorporating the Fifth Circuit's analysis (though the Appointments Clause issue was not part of the Questions Presented in the petition in that case). Therefore, this Court should grant certiorari—making sure that the grant includes the Appointments Clause question—in this case or in the Eighth Circuit case (or in both cases together).

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The Seventh Circuit heard oral argument on November 12 in Viramontes v. County of Cook, Illinois, a challenge to Cook County's ban on semiautomatic rifles like the AR-15, inaccurately labeled as assault weapons. These bans are flatly unconstitutional under Heller, which establishes that the law-abiding citizens of this Nation have a right to possess firearms that are in common use. Semiautomatic rifles undoubtedly are in common use – indeed, the AR-15 has been the best-selling rifle in the Nation for years. Unfortunately, the Seventh Circuit departed from Heller in a case called Bevis to hold that arms that are predominantly useful for military purposes can be banned. But even under that reasoning, semiautomatic rifles cannot be banned. They are common civilian firearms, not military firearms, because they lack the capacity for automatic and burst fire.

 The questioning at the Seventh Circuit, however, did not focus much on the merits of the case. Rather, the panel (consisting of Judges Sykes, Brennan, and St. Eve) took a surprise detour through a series of procedural objections put forward in Cook County's briefs. (Take a listen here). Judges Sykes and St. Eve appeared to think that Viramontes' challenge should fail because he didn't put forward critical evidence about semiautomatic rifles in the district court. Viramontes' lawyer challenged that notion, including by citing to specific pages in the record containing key pieces of evidence. I decided to dig deeper into the history of the case to see who has the better of the argument. The short answer is that Viramontes does. Indeed, he has built one of the most robust records I have seen by a plaintiff in a case challenging a semiautomatic rifle ban.

Procedural History

Before turning to the record, it is helpful to take a step back to see how we got to this point. When Viramontes filed his case, the constitutionality of a ban on semiautomatic rifles was controlled by two Seventh Circuit precedents, Wilson and Friedman. Viramontes did not initially seek to build a record in the district court because his sole path to victory was to have the Seventh Circuit or U.S. Supreme Court declare that Wilson and Friedman were wrongly decided.

Cook County, however, requested the opportunity to build a record, and the district court obliged. Then, while the case was proceeding in the district court, the U.S. Supreme Court decided Bruen, arguably wiping out Wilson and Friedman as precedent. It was in this context that the parties put forward their evidence and engaged in summary judgment briefing. It was not until summary judgment was fully briefed that the Seventh Circuit decided Bevis, and the parties addressed that decision in short filings.

Summary Judgment Briefing

Viramontes and Cook County both filed summary judgment motions. In those motions, the parties differed in how they presented the materials that they claimed supported their affirmative cases. All the key facts at issue in the case are what are called legislative facts – that is, general facts about the world that are not specific to the parties in the action, such as the overwhelming extent to which law-abiding citizens own semiautomatic rifles and why they own them. The Seventh Circuit has said that legislative facts may either "be incorporated in the argument section of [a] brief" or "in [a] statement of facts." Wiesmueller v. Kosobucki, 547 F.3d 740, 742 (7th Cir. 2008).

Viramontes chose the first option. Thus, in the argument section of his summary judgment brief, he cited legislative fact materials that he claimed entitled him to prevail, including: surveys about the possession of semiautomatic rifles by the Washington Post, the National Shooting Sports Foundation, and William English; information about the criminal misuse of firearms from sources like the U.S. Department of Justice and scholarly publications; and information about the distinction between automatic and semiautomatic fire and the defensive value of the latter from sources like the U.S. Army and scholarly publications.

Cook County chose the second option, putting in a lengthy statement of material facts setting forth its legislative fact material. Viramontes, accordingly, responded to Cook County's statement by identifying contrasting legislative fact material. This is expressly contemplated in the local rules, which provide that a response to a statement of material facts may include facts that are "fairly responsive to the asserted fact to which the response is made." N.D. Ill. LR 56.1(e)(2). Viramontes' response to Cook County's statement of facts is a 105-page document, backed by 105 exhibits spanning over 2,000 pages.

All of the specific sources referenced in the Seventh Circuit argument on November 12 can be found in these exhibits:

• Gregory Wallce, "Assault Weapon" Lethality, 88 Tenn. L. Rev. 1, 13–14 (2020): dkt. 98, ex. 12 (PageID 1835).
• Dennis P. Chapman, The AR-15 Controversy: Semiautomatic Rifles and the Second Amendment (2nd ed. 2022): dkt. 98, ex. 82 (PageID 3117).
• William English, 2021 National Firearms Survey: Updated Analysis Including Types of Firearms Owned at 33–34, Geo. Univ. (May 13, 2022): dkt. 98, ex. 15 (PageID 2004).
• Poll of current gun owners, Wash. Post-Ipsos (Mar. 27, 2023): dkt. 98, ex. 16 (PageID 2051).
• Commonly Owned: NSSF Announces Over 24 Million MSRS in Circulation, NSSF (July 20, 2022): dkt. 98, ex. 50 (PageID 2639).

These sources establish that semiautomatic rifles like the AR-15 are commonly-possessed firearms that law-abiding citizens keep in their homes for self-defense; that the military does not use semiautomatic-only rifles as standard service rifles; and that automatic fire is used for military operations that require laying down suppressive fire. There is much else besides, and material from the exhibits is referenced in the responses to the statement of facts, which are then incorporated as appropriate into the response to Cook County's summary judgment brief.

Assessment

Having reviewed the record, Viramontes' lawyer was clearly right: Viramontes built a substantial record in the district court; Cook County had ample opportunity to address the materials in the record; and Viramontes should prevail based solely on the materials in that record.

Of course, because legislative facts are at issue there is no reason to limit the materials considered by the Court of Appeals to what was in the district court record. Both Viramontes and Cook County supplemented those materials with new materials in their appellate briefing. But regardless of whether a broader body of information or only the district court record is considered, Viramontes should prevail, whether under the Bevis test or under the Heller common use test. My hope is that the Seventh Circuit does not get sidetracked by spurious procedural objections but instead decides the case that has been presented to it on the merits.

I expect this is obvious to most of our readers, but I thought I'd just flag it again, given the occasional talk of the decisiveness (or occasionally even "landslide" quality) of President-Elect Trump's victory: If 1% of voters nationwide switched from Trump to Harris,

• Harris would have won Pennsylvania, Michigan, and Wisconsin (where the margin of victory was under 2%), thus winning the Electoral College 270 to 268.
• The House would likely have gone 220 to 215 Democrat, as opposed to the current expected tally of 221 to 214 Republican.
• The Senate would have still gone Republican by 52 to 48, as opposed to the current expected tally of 53 to 47.

The 312 to 226 Trump victory in the electoral college is obviously enough for victory in this particular election. But it's easy to imagine how even slight changes in public attitudes, or slightly more or less appealing candidates, could shift the results radically in 2028 or, in the House in 2026. (Of course, the 2026 results will likely also be influenced by the usual tendency of the party in power to lose ground in midterm elections, and by the difference between the makeup of the electorate in Presidential-election years and in non-Presidential-election years.)

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Last week, I posted about a new Esperanto film I made, which I submitted to an Esperanto film festival (the 6th American Good Film Festival). (It's really short: under five minutes long. And don't worry: it has English subtitles.) It's called "Mesaĝo en botelo," or "Message in a bottle." My kids (and a couple of others) have acting or voice roles in it, and my twelve-year-old son Mark did the video and sound editing. You might remember my Esperanto film from last year, "Honesta homo" ("An honest person"), which was about Diogenes.

Voting closes today (Monday)—the film with the most "likes"/"thumbs-up" on YouTube gets the "audience choice" award in the film festival. So please click through to YouTube and like the video there. And spread the word!

(I don't think you can "like" a YouTube video when you watch it on this blog: click on the title at the top of the video to open it in YouTube.)

I erroneously put it up before rechecking it, and fortunately caught the error quickly and deleted the post. The post basically faulted this New York Times article for characterizing the resignation of Laura Helmuth at the Scientific American as just "Editor Resigns After Calling Some Trump Supporters 'Fascists,'" without discussing the vulgar nature of the editor's posts. But the Times article did note the comments were "expletive-laden," and I realize that my criticism was misguided.

My apologies to the Times, the author of the article, and our readers. I'm just glad that I spotted the error relatively promptly (and wish I had spotted it more promptly).