The Volokh Conspiracy

I was asked this question at a panel of the recent Israeli American Council national conference, and here is how I responded:

As a rule, the act of boycotting is not constitutionally protected, because it's considered an economic act, not a matter of free expression. That said, as a general matter, anyone is free to advocate a boycott, because advocacy is protected speech. In any event, regardless of constitutional considerations, no one is going to force a professor to submit a paper to an academic conference held at Tel Aviv University. So in that sense, professors are free, for example, to boycott Israeli universities as much as they want.

But a problem arises when a professor is acting on behalf of his institution.

The Boycott, Divestment, and Sanctions (BDS) movement advocates boycotting Israeli universities, which is against policy at all major universities. An individual professor has no right to go against university policy when acting on behalf of the university. The BDS movement also suggests boycotting anyone with ties to Israeli universities, and also anyone who supports what they consider Israeli violations of international law and human rights. By their lights this means, for example, anyone who supports any Israeli military action in Gaza or Lebanon, which they (absurdly) call "genocide" (and did so well before 10/7) Israel's actions. This, in turn, means boycotting almost all Israelis and most American Jews. This would be a violation of state law in many states, could be a violation of the First Amendment at state universities, would violate university policies regarding academic freedom, and likely would violate federal and state antidiscrimination laws.

And I think that's where we need to get tough. If a professor has said that he or she is personally pledged to adopt BDS and academic boycotts of Israel, we should insist that the rule that such a person may not serve as a dean, may not serve on hiring committees, may not serve on disciplinary committees, may not have any role in making decisions where they will have an opportunity to act on their stated principles and discriminate. The reason for this insistence is not because of the individuals' ideology, but because they have announced that in their professional lives they act in ways inconsistent with what would be their responsibilities acting on behalf of the university.

That said, merely stating "I think the BDS movement is a good idea," would not come within this rule, though universities would absolutely be within their rights to expect all faculty to sign a pledge that they will not discriminate based on national origin, ties to a foreign country, or political views before allowing that individual to wield university power.

Finally, I think professors have no right to refuse to write letters of recommendations to their students because they disapprove of their students' political views. There is, I think a way to do this without forcing a professor to write specifically to an organization that he disapproves of. Just tell the student, "I can't write a letter to ___ for you, but I of course will give you a generic letter of recommendation, and you can send it to whomever you wish."

Next week the U.S. Supreme Court will hear oral argument in Lackey v. Stinnie, a case that presents two questions about whether and when a party who receives a preliminary injunction may recover attorneys' fees as a "prevailing party" under 42 U.S.C. § 1988. An en banc decision of the Fourth Circuit said yes to prevailing party status for the plaintiff who secured a preliminary injunction before the challenged statutory provision was repealed.

The case is interesting for many reasons. One is the unusual split among the amici. The government amici, including conservative states and the Biden administration, lined up in support of the petitioner (arguing that the PI-receiving plaintiff was not a prevailing party). The public interest organizations lined up in support of the defendant (arguing for prevailing party status). That might not seem surprising--after all, fee shifting is an important part of the latter group's business model.

But below the surface two points are worthy of note. One is that many challenges to rules and statutes, at least at the federal level, are now led by coalitions of states. In this case, the states revert to form as paradigmatic defendants, instead of being challengers. The other point of note is that the public interest organizations that engaged in the case, although from across the political spectrum, tended to be more conservative ones. Attorneys' fees help drive public interest litigation, and the valence of a substantial portion of that litigation has shifted remarkably from what the amici would have looked like, say, ten years ago. And, of course, it will shift again.

More interesting, though, are the alternative visions of the preliminary injunction sketched out by the parties and their amici. The petitioners argue that the nature of the preliminary injunction is inconsistent with treating it as a judgment or final determination on the merits. No one has prevailed yet. The respondents treat the preliminary injunction as a judgment, a full determination of the merits. And they need to treat it that way so it is the judicial action itself, not the legislature's response to it, that is decisive.

I don't think it's really open to question who is right on this point. The petitioners (and the SG) correctly state the law of the preliminary injunction, and the respondents do not correctly describe what it is. I understand that one could come at this case in terms of incentives for strategic behavior, thinking about the political economy of public interest litigation and legislative responses. And that could open up a range of normative judgments (and that is the approach taken by some amici supporting the respondents). But if we approach it from the perspective of what a preliminary injunction is, and what consequences should follow from it, there is no room for doubt.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Victory! Earlier this year, IJ sued Oregon agricultural officials for requiring small dairy farms with only a handful of animals to install unnecessary and ruinously expensive industrial-grade wastewater management systems—a favor to big dairy farms that wanted to put their smaller competitors out of business. This week, we're happy to announce that the Oregon Dept. of Agriculture has rewritten its rules so that the requirement applies only to medium and large operations. Click here to learn more.

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The Supreme Court will hear oral arguments next week, on October 8, in Garland v. VanDerStok, the challenge to the radical expansion of the regulatory definition of "firearm" in the Gun Control Act (GCA).  Neither Congress nor the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ever touched that statutory definition passed by Congress in 1968. And both left the non-controversial regulatory definition of "firearm frame or receiver" undisturbed since 1968. But suddenly in 2022 ATF promulgated a Final Rule redefining those terms to include materials, tools, and information that a person with knowledge and skill can use to fabricate a firearm or a frame or receiver.

One of the most hard-hitting amici briefs filed in support of the challengers to the regulation is the brief of the States of West Virginia and 26 other States.  ATF, the brief argues, "is a political briar patch because of its rulemaking authority." That characterization is from a law review article with the parodistic title "Almost Heaven, West Virginia?: The Country Road to Take Firearm Regulation Back Home to Congress and the States."  That play on words brings together John Denver's "Take Me Home, Country Roads" with the major question doctrine set forth in West Virginia v. EPA, 142 S. Ct. 2587 (2022).  If that rule of law applies to anything, it applies to ATF's recent the regulatory rampage.

Given the political volatility of the "gun control" issue, Congress has historically been torn between constituents who support the Second Amendment and those who wish to criminalize various forms of acquisition and possession of firearms.  Because that the issue is a "major question," Congress writes gun statutes carefully and narrowly in a manner that leaves nothing to chance.  As the States' Brief says:

Given the sensitivity of this work, one might at least expect ATF to tread carefully before purporting to regulate in unexpected and aggressive new ways. But recently, it hasn't. ATF has instead seemed determined to stretch the words found in statutes like the GCA and NFA [National Firearm Act] to reach conduct never anticipated by the lawmakers who passed them. This case, concerning ATF's efforts to regulate gun kits and other forms of private firearms assembly under the guise of calling them "frames or receivers" subject to the GCA, is just the latest example of that effort.

This is not the first, and it won't be the last, overreach by ATF.  As the States' Brief continues, "many of the Amici States here have been compelled to step in and sue ATF multiple times over the past few years just to return the agency to its actual area of authority."  Thus, "when the Court encounters another ATF regulation offering a purportedly creative solution to a long-standing problem, it should be wary."  The Brief describes "some of the specific machinations ATF has used in the past to get to its desired results—erasing ordinary meaning, stripping words from context, ignoring comments, short-circuiting APA requirements, and blinding itself to the real-world consequences of its own actions."

Succinctly put, "The rule here overreaches. But the Court need not follow ATF into the briar patch."  Instead of addressing just the specific statutory issue before the Court, the Brief demonstrates how this regulation is only one of four recent ones that reveal ATF's pattern and practice of usurping "major questions" that Congress reserved to itself.

The State's Brief goes on to discuss these four pushes of the envelope, each of which I've analyzed in this blog – bump stocks, pistol braces, definition of "engaged in the business," and definition of "firearm."  It argues that ATF has disregarded the limits of its own authority and the requirements of the Administrative Procedure Act.  While possession of firearms in the wrong hands poses danger, only Congress can address the problem: "Neither the ATF nor this Court can impose naked policy preferences, especially so on hot-button issues like these."

"But to understand just why ATF's regulatory work can't really be trusted," the Brief continues, "it helps to travel through the rabbit hole of its fickle regulatory scheme. It's a dizzying ride."

First, as the Court recently addressed in Garland v. Cargill, 602 U.S. 406 (2024), for years ATF classified bump stocks as mere accessories, but then in 2018 abruptly reversed course and redefined them as "machineguns."  The definitions of various types of firearms in the GCA and NFA are in the hands of Congress, and ATF's regulatory definition contradicted the statute.

Second, after finding in seventeen classifications over several years that use of stabilizing braces on pistols is unrestricted, ATF reclassified them as short-barreled rifles under the NFA.  Its proposed regulation included a worksheet to determine if a specific braced pistol is "designed and intended to be fired from the shoulder."  The final regulation, adopted in 2023, scrapped the worksheet and relied on a vague, six-factor test based on subjective criteria under which virtually all pistols with braces would be short-barreled rifles.  The Fifth Circuit in Mock v. Garland, and the Eighth Circuit in Firearms Regulatory Accountability Coalition v. Garland, found the final rule to violate the APA.

Third, in 2024 ATF adopted a final rule expanding what it means to be "engaged in the business" of dealing in firearms.  As passed in 1968, the GCA had no definition.  A 1982 Senate Judiciary Committee Report found that ATF agents were "anxious to generate an impressive arrest and gun confiscation quota," so they "repeatedly enticed gun collectors into making a small number of sales."  In response, the Firearm Owners' Protection Act of 1986 provided that persons are "engaged in business" only if they: "[1] devote[d] time, attention, and labor to dealing in firearms [2] as a regular course of trade or business [3] with the principal objective of livelihood and profit through [4] the repetitive purchase and resale of firearms."  That was tweaked by the Bipartisan Safer Communities Act of 2022 to insert "predominantly" for "principal objective" and to delete "livelihood."

But ATF's final rule on this subject says that there is no minimum number of transactions required, one may be enough, and the seller need not obtain pecuniary gain.  Indeed, a mere offer to sell could be "engaging in the business," while selling zero firearms.  Since under this new definition almost anyone selling a firearm becomes a "dealer" requiring a license, almost all sales will require a background check, a result that Congress never intended and never enacted into law.  As the States' Brief puts it: "So by making almost everyone a 'dealer' under the GCA, ATF sneaks universal background checks in the back door."

The States' Brief makes a point that applies to all of these regulatory expansions: "the GCA does not give ATF authority to define terms in the first instance."  Section 921(a) of the GCA, which consists of "Definitions," begins "As used in this chapter," after which it states what each term "means."  Congress delegated authority to ATF to expand the meaning of a single term, "collector," which Congress said "means any person who acquires, holds, or disposes of firearms as curios or relics, as the Attorney General shall by regulation define…."  As the Brief observes, Congress thus "instructed ATF to create a definition only for one minor phrase in the GCA…."

That said, § 926(a) also provides that "The Attorney General may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter…."  As the Brief adds, "even if ATF could define a minor term here or there, there is no world in which it is 'necessary' for ATF to redefine the statute's most crucial terms, thereby eviscerating the definitions Congress created."

Fourth, with that, the Brief clamps down on the Final Rule at issue here.  In each of these rules, to use Justice Gorsuch's observation in one of the bump stock cases, "[t]he law hasn't changed, only [the] agency's interpretation of it." Guedes v. ATF, 140 S. Ct. 789 (2020) (denying cert.).  Congress has not changed its definition of "firearm" since it enacted the GCA in 1968, and ATF did not alter its definition of "frame or receiver" it promulgated in 1968 until it adopted the Final Rule here.

ATF's 1968 definition provided that a "firearm frame or receiver" is "[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel."  Under the proposed rule, a "frame or receiver" was drastically reduced to include any part that could "hold" or "integrate" "one or more fire control components," which was in turn defined as "a component necessary for the firearm to initiate, complete, or continue the firing sequence." As the Brief notes, "that definition would have covered all sorts of firearms parts, which meant modern firearms would then have many different 'frames' or 'receivers.'" ATF conceded that definition to be unworkable and nixed it.

Instead of proposing a new definition for public comment, ATF adopted its Final Rule with quite a different definition focusing on, in its words, the "primary energized component designed to hold back the hammer, striker, bolt, or similar component."  In the words of the Brief: "Put differently, ATF shifted from focusing on every discernible component of a firing sequence (and any housing or structure for it) to fixing on just one specific piece."

So "frame or receiver" began as the complete housing of a firearm's operating parts (1968), changed to potentially multiple housings for the same firearm (proposed rule), and ended with the housing for a single part, excluding the complete housing for all of the parts (final rule).

As the States' Brief argues, this case thus presents a "logical outgrowth" problem—a situation in which the agency "significantly amended the rule between the proposed rule and final versions, making it impossible for people to comment on the rule during the comment period." Ohio v. EPA, 144 S. Ct. 2040 (2024).  In other words, "the agency preferred to skip to the end and reach its desired result. This bait-and-switch is yet another reason not to countenance this rule."

Bringing together the four recent instances in which ATF attempted to extend its regulatory reach to an unprecedented magnitude, the Brief affirms what should be obvious:

Congress has not outlawed weapons parts kits, stabilizing braces, or bump stocks. Nor has it dubbed every person handling a gun a firearms dealer. ATF can't take these actions in Congress's place. The agency's error, here, provides another peek behind the curtains. And looking backstage, it's clear that ATF is a legislative body poorly disguising itself as an executive one—even going so far as to use procedural maneuvers to avoid scrutiny. ATF has a history of ignoring statutory text and APA mandates.

The States' Brief ends with the truism that policy concerns can't trump statutory text.  "Left with little in the way of textual support, many of ATF's amici argue that this Court should depart from the statute's plain meaning because excluding 'ghost guns' from the GCA's scope would purportedly have dire consequences."  But that's a matter for Congress, not the agency or the Court.

At various universities around the country, Students for Justice in Palestine and other pro-Hamas groups are holding events on October 7. Some of these events celebrate Palestinian "resistance," while others, throwing in a blood libel for good measure, commemorate a non-existent genocide of Palestinians by Israel since the war in Gaza began.

Let's recall what happened on October 7, 2023. Thousands of Hamas terrorists, followed by "civilian" hangers-on, attacked border towns in southern Israel along with a music festival. The perpetrators recorded themselves gleefully murdering innocent people–peacenik kibbutznik and party-goers, children in front of their parents (there is one harrowing video you can find online of an eight-year-old girl asking, in vain, that the terrorists murder her), not the elderly, just everyone in their path. The murders were often undertaken in the most gruesome ways, including burning people alive. They also undertook an orgy of rape and torture, and kidnaped a few hundred Israelis, from a baby to an eighty-five year-old.

Let's also recall that on October 7, woefully underprepared Israeli forces struggled to repel the invasion. Not a single Israel soldier entered Gaza that day.

This tells us two things. First, those who see October 7 as anything but a day that should be devoted to the memory of the innocents brutally murdered, raped, tortured, and kidnaped that day at the very least are indifferent to that suffering, and at worst applaud the worst violence against Jews since the Holocaust. Unfortunately, many are in the latter category. As Seth Mandel writes, "American universities are full of psychopaths both in the student body and often in the professoriate (and sometimes administration)."

Second, there is no reason for anyone protesting the Israeli response in Gaza to the war Hamas started to use October 7 as a commemorative date, except to intentionally intrude on Jewish memory and commemorations of the atrocities of that day. To again quote Mandel, they choose October 7 "not despite the pain it causes Jews on campus but because of that pain." It's a form of emotional and political warfare, as if on September 11, 2002 students held events about a purported genocide by US forces fighting the Taliban.

So what should be done about morally repugnant university events to be held on October 7? If, as at Wake Forest, such events are sponsored by university academic departments, a university is well within its rights to shut them down, as Wake Forest did. Academic departments are subdivisions of the university, and the university may tell these departments that it refuses to allow its subdivisions, speaking as agents of the university, to sponsor events using October 7 for pro-Hamas propaganda.

For student events, however, the answer is that nothing should be done by university officials. At public universities, students have a First Amendment right to be as openly morally repugnant as they choose. Thus, a Maryland judge was correct in rebuffing the University of Maryland's attempt to stifle a pro-Hamas October 7 event. At private universities, if the university has a policy of not censoring student political events, it should not make an exception for these.

Yes, it's true that at many universities there would be a far stronger administrative reaction to an event celebrating the lynching of black people, or gay-bashing, or atrocities against Native Americans, and so on. And if students can prove that the university treats Jewish students' complaints and concerns differently than other groups', that is valid grounds for a lawsuit or Title VI complaint. And university officials certainly have no excuse not to denounce October 7 celebrations if (and only if) they regularly denounce other student events they find morally repugnant. (And of course, counter-demonstrations must also be permitted.)

Part of me wishes that I could make a principled argument for shutting these events down, but part of me does not. The groups holding these events are quite openly and publicly telling you who they are and what they believe in. To quote Mandel once more, their "leaders don't want to wait a day to hold the rally because while any other day could mark the war, no other day could mark the murder and mayhem of Oct. 7. The day is important to them because the massacre of Jews is important to them." And that's important information to have.