The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Yesterday, in Hobby Distillers Association v. Alcohol and Tobacco Tax and Trade Bureau, a federal district court in Texas held that federal laws banning distilled spirits plants (aka "stills") in homes or dwellings exceed the scope of Congress' enumerated powers. Specifically, the court concluded that the prohibitions exceed the scope of the federal taxing power and the Interstate Commerce Clause, even as supplemented by the Necessary and Proper Clause. The court further entered a permanent injunction barring enforcement of these provisions against those plaintiffs found to have standing (one individual and members of the Hobby Distillers Association.) The plaintiffs were represented by attorneys at the Competitive Enterprise Institute, and background on the case (and the various filings) can be found on CEI's website here.

Hobby Distillers Association has the potential to be a significant post-NFIB challenge to the expansive of use of federal power. A few excerpts from the decision are below the jump.

Politics

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A federal district court has denied Judge Pauline Newman's challenge to her suspension from the U.S. Court of Appeals for the Federal Circuit. The Circuit's Chief Judge, Kimberly Moore, suspended Judge Newman due to her alleged physical and cognitive impairment. Judge Newman is 97 and denies the allegations. Reuters reports she plans to appeal.

Whether or not Judge Newman is still fit for judicial service (and whether or not there are legal problems with how Chief Judge Moore has treated her), the episode highlights one potential problem with life tenure: Sometimes judges do not know when to quit.

Some years ago, historian David Garrow wrote an extensive law review article on the subject, "Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment," in the University of Chicago Law Review. It is a fascinating read. Here is a taste from the introduction:

Mental decrepitude and incapacity have troubled the United States Supreme Court from the 1790s to the 1990s. The history of the Court is replete with repeated instances of justices casting decisive votes or otherwise participating actively in the Court's work when their colleagues and/or families had serious doubts about their mental capacities. Contrary to conventional wisdom among legal scholars and historians, a thorough survey of Supreme Court historiography reveals that mental decrepitude has been an even more frequent problem on the twentieth-century Court than it was during the nineteenth. The historical evidence convincingly demonstrates that mental decrepitude among aging justices is a persistently recurring problem that merits serious attention. . . .

More than seventy years ago, former Justice and future Chief Justice Charles Evans Hughes emphasized publicly that "[i]t is extraordinary how reluctant aged judges are to retire and to give up their accustomed work."' Over the ensuing years little has changed. The United States Supreme Court since 1990 has featured four justices who continued serving after reaching the age of eighty: William J. Brennan, Jr., Thurgood Marshall, Harry A. Blackmun, and John Paul Stevens. Chief Justice Hughes was an early proponent of mandatory judicial retirement at age seventy-five, and he pointedly warned that "the importance in the Supreme Court of avoiding the risk of having judges who are unable properly to do their work and yet insist on remaining on the bench, is too great to permit chances to be taken." But no constitutional reform has occurred, and thus it remains undeniably true, as Chief Judge Richard A. Posner observed in 1995, that "[t]he judiciary is the nation's premier geriatric occupation."' A careful review of both Supreme Court Justices' aggregate biographies, and the little-remembered efforts to enact a corrective amendment, shows that the Court's history offers some powerfully important present-day lessons and reveals how both scholarly knowledge and conventional wisdom are woefully incomplete. Today the conclusion unfortunately remains, just as Charles Evans Hughes said in 1928, that "[t]he exigency to be thought of is not illness but decrepitude."

Garrow recommends a constitutional amendment forcing retirement at 75. He posits such an amendment might have been adopted in 1937 had Franklin Roosevelt been willing to accept such an alternative to his court-packing plan.

Some states have age limits for judges. In Ohio, for example, no individual can be appointed or elected to a judgeship once they reach 70 years old. There is no such limit in the federal courts.

Due to the lack of age limits, we expect our judges -- and our justices in particular -- to be old. Interestingly enough, this year we have a Presidential election in which both major-party presidential candidates are older than every member of the Supreme Court. This is quite remarkable (and may be without precedent).

We should be concerned about decrepitude on courts. We should also be concerned about it in the White House.

7/11/1921: Chief Justice William Howard Taft takes oath.

It is becoming increasingly common for politicians and activist groups to call for judges to recuse from high-profile cases on the flimsiest of grounds. One example was the laughable effort by Senator Elizabeth Warren to get Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit to recuse from a case involving limits on credit card fees because one of his children's savings account invested a minimal amount in a bank that was not a party to the case. The U.S. Judicial Conference Committee on Codes of Conduct determined (correctly) that Judge Willett's investment was too "indirect and contingent" to require recusal in the case, but this was not enough for Senator Warren.

Attorney Ted Olson decries the "alarming increase in baseless judicial-ethics attacks" and recusal demands by non-parties in a recent Wall Street Journal op-ed. After recounting the tale above, he writes:

Interest groups have demanded that judges and justices recuse themselves based on similarly attenuated investment connections. The latest came when outside groups wrote to a federal district judge demanding that he recuse himself from considering the lawfulness of the Federal Trade Commission's new regulation banning noncompete clauses in employment contracts. The judge holds stock in several publicly traded companies that aren't parties to the litigation but have used noncompete clauses in their employment contracts.

Recusal tactics have become more outrageous. Normally, only parties directly involved in the litigation can file a motion to recuse a judge for an alleged conflict of interest. But we now see coordinated campaigns to pressure recusals. Left-wing interest groups are submitting demands for recusal, coupled with press releases and press conferences. This practice should stop. There is no formal mechanism for outsiders to file such recusal demands, and for good reason. They clog courts with additional briefings and hearings, causing delays and distorting outcomes. Courts should refuse to entertain these ill-intended requests, and the lawyers and litigants responsible should be subjected to sanctions. . . .

As Olson notes, unfounded arguments for recusal will not be limited to judges on one side of the jurisprudential spectrum. Olson notes that some same-sex marriage opponents sought to force a judge's recusal in that litigation. He could also have noted that there are a number of prominent liberal judges married to individuals active in public policy who would be forced to recuse from many cases were the standards pushed by activists applied even-handedly.

As Olson notes, excessive calls for recusal and baseless ethical attacks have implications beyond the individual cases in which they are raised.

These tactics are harmful. Unwarranted accusations of judicial bias or conflicts aim to intimidate judges to recuse themselves unnecessarily or, worse, to overcompensate in their judicial decisions. These accusations seek to undermine the courts' legitimacy and the public's confidence in the impartial administration of justice.

Those are the immediate objectives. In this latest trend of coordinated recusal attacks, however, I see a much more malicious and dangerous long-term objective. These unfounded attacks are ultimately aimed at undermining the independence of the federal judiciary as a whole. . . . This is a well-financed and coordinated effort to lay the foundation for calls for court packing and other reform measures that would destroy the judiciary's independence.

Regular readers may recall my prior coverage of United States v. Chatrie, a case on the Fourth Amendment implications of collecting Google location history records—location records stored by Google about where logged-in Google users are located—which in the Chatrie case were used to identify a bank robber. The Fourth Circuit handed down its ruling in the case yesterday, and I thought I would give a quick summary and offer some thoughts.

My 2022 post explained the technology, the facts, and the trial court's ruling, so please go there for the details, as I'd rather not repeat it all here. (Go ahead, really, I'll wait. Okay, back? Now let's continue.). As you'll recall from my 2022 post—which you just read, right?— the trial court in this case (1) assumed that collecting the records was a Fourth Amendment search; (2) adopted a very narrow view of how broadly warrants for such records can extend, under which the Chatrie geofence warrant was plainly unconstitutional; and then (3) upheld the collection of records anyway under the good-faith exception to the warrant requirement because it was such a novel issue. My 2022 post was skeptical of this, suggesting that no search may have occurred in the first place and that warrants should be a lot broader than what the district court concluded.

In the new ruling, the Fourth Circuit rules 2-1 that no search occurred. Judge Jay Richardson wrote the majority opinion, and he was joined by Judge Harvie Wilkinson, Judge James Wynn dissented. Here's the key reasoning from the majority opinion by Judge Richardson:

Relying on Carpenter, Chatrie argues that the government conducted a search when it obtained his Location History data from Google. We disagree. Carpenter identified two rationales that justify applying the third-party doctrine: the limited degree to which the information sought implicates privacy concerns and the voluntary exposure of that information to third parties. Both rationales apply here. Accordingly, we find that Chatrie did not have a reasonable expectation of privacy in the two hours' worth of Location History data that law enforcement obtained from Google. So the government did not conduct a search by obtaining it.

Start with the nature of the information sought. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206. The government requested and obtained only two hours' worth of Chatrie's Location History data.16 By no means was this an "all-encompassing record of [Chatrie's] whereabouts … provid[ing] an intimate window into [his] person[al] life." Carpenter, 585 U.S. at 311, 138 S.Ct. 2206. All the government had was an "individual trip viewed in isolation," which, standing alone, was not enough to "enable[ ] deductions about 'what [Chatrie] does repeatedly, what he does not do, and what he does ensemble.' "Beautiful Struggle, 2 F.4th at 342 (quoting Maynard, 615 F.3d at 562–63). The information obtained was therefore far less revealing than that obtained in Jones, Carpenter, or Beautiful Struggle and more like the short-term public movements in Knotts, which the Court found were "voluntarily conveyed to anyone who wanted to look." Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Knotts, 460 U.S. at 281, 103 S.Ct. 1081). A record of a person's single, brief trip is no more revealing than his bank records or telephone call logs. See Miller, 425 U.S. at 442, 96 S.Ct. 1619; Smith, 442 U.S. at 742, 99 S.Ct. 2577. Chatrie thus did not have a "legitimate 'expectation of privacy,' " in the information obtained by the government, so the first rationale for the third-party doctrine applies here. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Miller, 425 U.S. at 442, 96 S.Ct. 1619).

Furthermore, Chatrie voluntarily exposed his location information to Google by opting in to Location History. Id. at 315, 138 S.Ct. 2206. Consider again how Location History works. Location History is an optional setting that adds extra features, like traffic updates and targeted advertisements, to a user's experience. But it is "off by default" and must be affirmatively activated by a user before Google begins tracking and storing his location data. J.A. 1333–34. Of course, once Google secures this consent, it monitors his location at all times and across all devices. Yet even then, Google still affords the user ultimate control over how his data is used: If he changes his mind, he can review, edit, or delete the collected information and stop Google from collecting more. Whether Google tracks a user's location, therefore, is entirely up to the user himself. If Google compiles a record of his whereabouts, it is only because he has authorized Google to do so.

Nor is a user's consent secured in ignorance, either. See Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (explaining that the third-party doctrine applies to information "knowingly shared with another"). To the contrary, the record shows that Google provides users with ample notice about the nature of this setting. Before Google allows a user to enable Location History, it first displays text that explains the basics of the service. The text states that enabling Location History "[s]aves where you go with your devices," meaning "[t]his data may be saved and used in any Google service where you were signed in to give you more personalized experiences." It also informs a user about his ability to view, delete, or change his location data. A user cannot opt in to Location History without seeing this text.

So unlike with CSLI, a user knowingly and voluntarily exposes his Location History data to Google. First, Location History is not " 'such a pervasive and insistent part of daily life' that [activating it] is indispensable to participation in modern society." Carpenter, 585 U.S. at 315, 138 S.Ct. 2206 (quoting Riley, 573 U.S. at 385, 134 S.Ct. 2473). Carpenter found that it is impossible to participate in modern life without a cell phone. Id. But the same cannot be said of Location History. While Location History offers a few useful features to a user's experience, its activation is unnecessary to use a phone or even to use apps like Google Maps. Chatrie gives us no reason to think that these added features are somehow indispensable to participation in modern society and that his decision to opt in was therefore involuntary. That two-thirds of active Google users have not enabled Location History is strong evidence to the contrary. Cf. Riley, 573 U.S. at 385, 134 S.Ct. 2473 (noting that, as of 2014, "a significant majority of American adults" owned smartphones). Thus, a user can decline to use Location History and still participate meaningfully in modern society.

Second, unlike CSLI, Location History data is obtained by a user's affirmative act. Carpenter noted that "a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up." 585 U.S. at 315, 138 S.Ct. 2206. But Location History is off by default and can be enabled only by a user's affirmative act. A person need not go off the grid by "disconnecting [his] phone from the network … to avoid" generating Location History data; instead, he can simply decline to opt in and continue using his phone as before. See id. Thus, "in [every] meaningful sense," a user who enables Location History "voluntarily 'assume[s] the risk' " of turning over his location information. Id. (quoting Smith, 442 U.S. at 745, 99 S.Ct. 2577). So the second rationale for the third-party doctrine applies here, too. The third-party doctrine therefore squarely governs this case. The government obtained only two hours' worth of Chatrie's location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he "t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government." Miller, 425 U.S. at 443, 96 S.Ct. 1619. He cannot now claim to have had a reasonable expectation of privacy in this information. See Smith, 442 U.S. at 743–44, 99 S.Ct. 2577. The government therefore did not conduct a search when it obtained the data.

From Abitbol v. Rice, decided Monday by N.Y. trial court judge Mary Rosado; nothing special about the legal analysis, but with facts like these, how could I pass them up?

This action arises out of a fire and ensuing water damage at the condominium at 10 West End Avenue, New York, NY 10023 (the "Building"). Plaintiff resided in Apartment #14B in the Building and Defendant lived in Unit 12G. The morning of November 6, 2019, Plaintiff lit a candle to "cleanse energy and heal her Chakras." Plaintiff alleges she blew out the candle and took her son to school. Nonetheless, a fire somehow ignited, and the fire sprinkler systems were triggered. Defendant's unit sustained water damage.

Plaintiff alleges that sometime in July of 2022, Defendant told Fire Marshal Anthony Henry of the FDNY that Plaintiff deliberately started the fire to gain notoriety and be cast on "Real Housewives of New York." Plaintiff also alleges that in June of 2022, Defendant drafted and filed a civil complaint in Rice v. Abitbol (the "Parallel Action") alleging that Plaintiff deliberately caused the fire and sent the complaint to news media outlets, including I Love The Upper West Side ("ILTUWS"). Plaintiff claims Defendant made additional defamatory comments to the New York Post by asserting that the investigation into the fire was an "open arson investigation from what I have been told." Plaintiff alleges these statements constitute defamation per se because they accuse her of committing a criminal act. She also claims intentional infliction of emotional distress and seeks declaratory judgment….

The court granted Defendant Rice's motion to dismiss the case under New York's "anti-SLAPP law":

Free Speech Libel

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The article is here; here are the introductory paragraphs:

In a brief and largely overlooked section of the Doctrine of Right, Kant considers the right a person has to retain a good reputation after their death, the acquisition of which he calls "a phenomenon as strange as it is undeniable." Kant here is not claiming that one should never speak ill of the dead, at least if one is speaking truthfully (although Kant does count it "a duty of virtue not to take malicious pleasure in exposing the faults of others"). Rather, Kant's concern is with posthumous defamation: the telling of lies that in some way "stains" the name of the deceased. Kant explains that when such a right is violated, those still alive acquire an obligation to restore the reputation of the dead. This obligation apparently falls on everyone regardless of their relation to the deceased: "[A]n apologist need not prove his authorization to play the role of apologist for the dead, for everyone inevitably arrogates this to himself as belonging … to the right of humanity as such."

Although Kant has no doubt that there really is such a right against posthumous defamation, he is very puzzled by it, admitting that "It is therefore indisputable that there is a basis for such an ideal acquisition for someone's right after his death against those who survive him, even though no deduction of its possibility can be given" (emphasis added). Kant's perplexity is understandable. He considers the right to a good reputation to be part of "private right," concerning "what is externally mine or yours" such as property, contractually obligated performances, and the peculiar category of "domestic right" that heads of households supposedly have with respect to their spouses, their children, and their domestic servants. The violation of private right involves the wrongful infliction of harm or loss in a way that would normally call for at least some sort of compensation from the party responsible. So understood, this right immediately raises the question of whether, and in what ways, the dead can be harmed or deprived of something, and more broadly how the dead can still have interests that merit legal protection.

Whether the dead can still be harmed or helped is a long-standing philosophical question going back at least to Aristotle (who answers both in the affirmative). If the only things intrinsically good or bad for a person are their experiences (or aspects of experience, like pleasure), then death clearly puts a person beyond all injury (assuming, as Kant does, that death is complete annihilation). If we understand a person's good to involve not just experience but the objects of what they desire or otherwise care about, there remains what to make of those desires once the subject of those desires is no more. If I no longer exist after I die, just who could it be that could be benefited by the satisfaction of the desires that I developed when I was alive?

Free Speech Libel

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In the aftermath of Trump v. United States, I wrote a series of posts breaking down most facets of the opinion as a doctrinal matter (1, 2, 3, 4, 5, 6, 7, 8). My general impression is that the decision was not premised on original public meaning, but was a mishmash of precedent, pragmatism, and "traditionalism." Yet the reaction was one of stunned outrage! It is the next Roe v. Wade. We need a constitutional amendment to overrule it. We need to pack the Supreme Court! And so on.

Never forget, most commentary about the Supreme Court is performative. Critics have a vested interest in making the decisions seem so much worse than they really are. There really should not have been much of a surprise here.

First, Nixon v. Fitzgerald has been on the books for decades. That decision established absolute civil immunity for all acts within the "outer perimeter" of the President's duties. No one asked the Court to reconsider Nixon, so that was precedent. During oral argument, Justices Jackson and Sotomayor repeatedly tried to explain why civil immunity made sense, but criminal immunity did not. But the majority disagreed. Critically, the Court found that it would make no sense to provide immunity for civil suits, but not for criminal prosecutions. Indeed, as I noted, the risks from a criminal prosecution of the President are greater than the risk of a civil lawsuit. One the Court declined to distinguish civil and criminal suits, it follows naturally that the absolute immunity recognized in Nixon would apply in the criminal context for Trump. None of this should be surprising.

Second, once the Court recognized that there would be absolute immunity for "core" powers, and presumptive immunity for other actions, the Court had to adopt some test. The Fitzgerald Court's "outer perimeter" test was never particularly helpful. Instead, Chief Justice Roberts borrowed from Blasingame v. Trump, a precedent from the D.C. Circuit. This case involved a civil suit against President Trump for his role on January 6:

For those reasons, the immunity we have recognized extends to the "outer perimeter" of the President's official responsibilities, covering actions so long as they are "not manifestly or palpably beyond [his] authority." Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023) (internal quotation marks omitted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have "refused to draw functional lines finer than history and reason would support").

Given Fitzgerald, and how the lower courts have applied Fitzgerald, the Court was going to have to apply some sort of test to determine immunity. The Court gave some guidance to the lower courts. I don't know how helpful it will be, but the Court here was treading in uncertain territory. Is the framework so unreasonable?

Third, I think most of the critics of the decision still believe that the law can constrain a populist presidential candidate. It can't. Alvin Bragg, Jack Smith, Fani Willis, and so on. None of them have made a dent on Trump. The WSJ summed things up nicely:

None of this is a vindication of Mr. Trump's conduct or an endorsement of paying off a porn star, trying to overturn the 2020 election, or refusing to help a besieged Congress on Jan. 6. But as the past nine years have shown over and over, Mr. Trump's biggest opponents are often his best asset. They convinced themselves he won in 2016 by colluding with Russia, and special counsel Robert Mueller would get to the bottom of it. They impeached him twice. Mr. Trump plowed through it all.

It is a fantasy to believe that any test that Chief Justice Roberts could make up would control this president or any other. The law only goes so far.

Everyone should take a deep breath. The only way to defeat Trump is at the ballot box. That was true in 2016. That was true in 2020. And it will be true in 2024.

Both of their bodyguards shot someone.

Last week, a Deputy U.S. Marshall, assigned to protect Justice Sotomayor, shot a carjacker:

A member of Supreme Court Justice Sonia Sotomayor's security detail shot an armed man during an attempted carjacking in the early morning hours, according to court documents.

It happened as two deputy U.S. Marshals were on duty in a government car in Washington, D.C., about 1 a.m. on July 5. They were confronted by a man who got out of a silver minivan and pointed a gun at one of them through the driver's side window, according to a criminal complaint. The car was unmarked but the pair were dressed in U.S. Marshals shirts.

The deputy pulled out his department-issued gun and shot the man about four times, hitting him in the mouth. He then gave the man first aid while the minivan drove away, charges state. The suspect was hospitalized and placed under arrest on suspicion of attempted carjacking and resisting officers.

In 1889, the Attorney General appointed David Neagle, a Deputy U.S. Marshall, to serve as Justice Stephen Field's bodyguard. Neagle fatally shot a man while the Justice was riding circuit in California. No actual statute authorized the Attorney General to appoint the bodyguard. But in In Re Neagle, the Supreme Court held that the Attorney General could rely on the President's obligation to take care that the laws are faithfully executed.

This might be one of the few things Sotomayor and Field have in common. I suspect that Sotomayor would not agree with Field's concurrence in Bradwell v. Illinois.

7/10/1832: President Jackson vetoes the bill to recharter the Second Bank of the United States. He wrote that the bill was unconstitutional.

A few days ago, the Seattle University School of Law held a webinar on Trump v. United States, the recent Supreme Court decision on presidential immunity. The video is now available, and I have included it in this post. I was one of the participants, along with many other legal scholars and commentators. The first panel included Professor Holly Brewer of the University of Maryland Department of History; Smita Ghosh, appellate counsel at the Constitutional Accountability Center; Professor Darren Hutchinson of Emory University School of Law; Professor Lee Kovarsky of the University of Texas, Austin School of Law; Professor Justin Levitt of Los Angeles' Loyola Law School; and Professor Claire Wofford of the College of Charleston. The Speakers on the second panel were Professor Jeremiah Chin of Seattle U Law and the University of Washington School of Law; Professor Rachel Lopez of Temple University Beasley School of Law; Professor Jed Shugerman of Boston University School of Law; Professor Robert Tsai of Boston University Law; Professor Steve Vladeck of the Georgetown University Law Center;Andrew Wright of K&L Gates; and myself. My contribution happened to be the very last one on the second panel. It begins at about 2:37:20.

I analyzed and critiqued the Court's ruling in greater detail here.

I've written two other posts about Grants Pass v. Johnson. First, I commented on whether the law in fact criminalizes the mere status of being homeless, or whether it criminalizes the act of camping in public. Second, I wrote how the Court constrained Robinson v. California, an inherently un-originalist precedent, by declining to extend it.

Here, I will comment on another unusual aspect of the majority opinion: how heavily the majority opinion leaned into amicus briefs. Indeed, Justice Gorsuch's majority opinion cited not only merit-stage briefs, but also cert-stage briefs. The import was clear: even deep-blue jurisdictions from California and similar bastions of leftism contend that the Ninth Circuit's jurisprudence is mistaken. They urged the Court to take the case, and urged the Court to reverse! The majority was quite content to answer the prayer from these progressive enclaves.

Here are just a smattering of citations:

In February, 2023, former Vice President Mike Pence invoked the Speech or Debate Clause to challenge a subpoena from the Special Counsel. I explained that, as a matter of text, this argument didn't fly. The Speech or Debate refers to "Senators and Representatives." The Vice President is the President of the Senate, but is not a Senator. However, there are a string of precedents which could support a more functional reading of the Speech of Debate Clause. And, in June 2023, Judge Boasberg found that Vice President Pence received some protections under the Speech or Debate Clause for his role on January 6. I did not find that decision persuasive as a textual matter, but there is some precedent on point that the court followed.

Part III-B-2 of Trump v. United States reminded me of Pence's case. Here, Chief Justice Roberts discussed whether President Trump's communications with Vice President Pence leading up to, and during, January 6, would be immune from prosecution.

To be sure, the President has an interest in legislation that is being considered in the Senate. And, as President of the Senate, the Vice President plays a unique role in that process. If the Senate is evenly divided, the Vice President can cast a tie-breaking vote. Chief Justice Roberts explains that with respect to legislation, the President has an important role in having communications with the Vice President. These communications would be presumptively immune from any congressional regulations:

[O]ur constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President's term in office. These two officials are the only ones "elected by the entire Nation." Seila Law; see Art. II, §1. . . . And Article I of course names the Vice President as President of the Senate and gives him a tiebreaking vote. §3, cl. 4. It is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President's agenda in Congress and beyond. The Vice President may in practice also serve as one of the President's closest advisers.

I think that argument is correct when discussing legislative sessions. But does it work with regard to the joint session? The Constitution assigns the President of the Senate particular functions during the joint session of Congress. Roberts acknowledges that the President does not have a role in that process:

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. . . . Ibid. Despite the Vice President's expansive role of advising and assisting the President within the Executive Branch, the Vice President's Article I responsibility of "presiding over the Senate" is "not an 'executive branch' function." Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President's Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President's role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President's communications with the Vice President concerning the certification proceeding does not pose "dangers of intrusion on the authority and functions of the Executive Branch." Fitzgerald.

Yet Roberts signals that the President's interest in legislation could still extend to the Vice President's role in the joint session:

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President's agenda in Congress. When the Senate is closely divided, for instance, the Vice President's tiebreaking vote may be crucial for confirming the President's nominees and passing laws that align with the President's policies. Applying a criminal prohibition to the President's conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President's ability to perform his constitutional functions.

Justice Sotomayor responds in her dissent:

The majority admits that the Vice President's responsibility "'presiding over the Senate' " is "'not an "executive branch" function,'" and it further admits that the President "plays no direct constitutional or statutory role" in the counting of electoral votes. Yet the majority refuses to conclude that Trump lacks immunity for his alleged attempts to "enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results." Instead, it worries that a prosecution for this conduct might make it harder for the President to use the Vice President "to advance [his] agenda in Congress." Such a prosecution, according to the majority, "may well hinder the President's ability to perform his constitutional functions." Whether a prosecution for this conduct warrants immunity should have been an easy question, but the majority turns it into a debatable one.

If the District Court is correct about the Vice President's role, with regard to the Speech or Debate Clause, I think it would be harder to make the case that the President's discussions with the Vice President about the joint session would not be immune.

Robinson v. California (1962) may be peak Warren Court activism. California made it a crime to be addicted to narcotics--not simply to use drugs, but to be addicted to using them. Robinson argued that this law violates some sort of substantive due process right. This was three years before Griswold, so the Court still was stuck under the New Deal settlement that rejected substantive due process. So what does the Warren Court do? It manufactures a new standard based on the Eighth Amendment out of whole cloth. Sort of like a penumbra. (Griswold favorably cites Robinson.) The Robinson Court held that it would violate the Eighth Amendment to punish someone because of the "status" of being a drug addict. The Court ruled that when punishing "'status,'" "[e]ven one day in prison would be . . . cruel and unusual." Id., at 666–667.

This argument was not raised by the defendant. Justice Gorsuch's majority opinion explains:

Reaching that conclusion under the banner of the Eighth Amendment may have come as a surprise to the litigants.Mr. Robinson challenged his conviction principally on the ground that it offended the Fourteenth Amendment's guarantee of due process of law. . . . Mr. Robinson's resort to the Eighth Amendment was comparatively brief. He referenced it only in passing, and only for the proposition that forcing a drug addict like himself to go "'cold turkey'" in a jail cell after conviction entailed such "intense mental and physical torment" that it was akin to "the burning of witches at the stake." Robinson Brief 30. The State responded to that argument with barely a paragraph of analysis, Brief for Appellee in Robinson v. California, O. T. 1961, No. 61–554, pp. 22–23, and it received virtually no attention at oral argument.

During oral argument, there were zero questions about the Eighth Amendment--I found one fleeting reference to a "cruel and unusual punishment," but that was it.

Robinson resembles another Warren Court classic decided one year earlier, Mapp v. Ohio (1961). In that landmark precedent, the Court transformed a First Amendment obscenity case into a Fourth Amendment case. The Court "incorporated" the exclusionary rule and overturned Wolf v. Colorado, even tough the Defendant did not seek to overrule that precedent, only the ACLU as amicus did. Whenever current members of the Court want to complain about the Court reaching out to decide issues that are not presented, they should think carefully about Mapp and Robinson. But at least in Grant's Pass, Justice Sotomayor's dissent preached fidelity to a precedent that was manufactured out of thin air without the benefit of party presentation. So much for judicial "modesty."

The most obvious response to Robinson would be to overrule it. But, in an act of restraint, the Roberts Court declines to overrule a precedent that Grants Pass did not ask to overrule. (A MAGA Court would have held that the Fourteenth Amendment requires the government to protect citizens from homeless encampments.)

Justice Thomas's concurrence explains at length why Robinson ought to be overruled.

First, the precedent that the respondents primarily rely upon, Robinson v. California, 370 U. S. 660 (1962), was wrongly decided. In Robinson, the Court held that the Cruel and Unusual Punishments Clause prohibits the enforcement of laws criminalizing a person's status. That holding conflicts with the plain text and history of the Cruel and Unusual Punishments Clause. That fact is unsurprising given that the Robinson Court made no attempt to analyze the Eighth Amendment's text or discern its original meaning. Instead, Robinson's holding rested almost entirely on the Court's understanding of public opinion: The Robinson Court observed that "in the light of contemporary human knowledge, a law which made a criminal offense of . . . a disease [such as narcotics addiction] would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Modern public opinion is not an appropriate metric for interpreting the Cruel and Unusual Punishments Clause—or any provision of the Constitution for that matter.

If you're looking for the "intellectual and theoretical leader on the court" of the Court, it is still Justice Thomas. Justice Barrett tends to write separately to moderate when she cannot join a conservative majority opinion in full. To be a leader, one must be followed. I've yet to see anyone follow Justice Barrett on or off the Court.

The majority, though, finds no need to overrule Robinson because this case is distinguishable.

Still, no one has asked us to reconsider Robinson. Nor do we see any need to do so today. Whatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit's course since Martin. In Robinson, the Court expressly recognized the "broad power" States enjoy over the substance of their criminal laws, stressing that they may criminalize knowing or intentional drug use even by those suffering from addiction. 370 U. S., at 664, 666. The Court held only that a State may not criminalize the "'status'" of being an addict. Id., at 666. In criminalizing a mere status, Robinson stressed, California had taken a historically anomalous approach toward criminal liability. One, in fact, this Court has not encountered since Robinson itself.

Public camping ordinances like those before us are nothing like the law at issue in Robinson. Rather than criminalize mere status, Grants Pass forbids actions like "occupy[ing] a campsite" on public property "for the purpose of maintaining a temporary place to live." … In that respect, the city's laws parallel those found in countless jurisdictions across the country. See Part I–A, supra. And because laws like these do not criminalize mere status, Robinson is not implicated.

But are the cases distinguishable? Depends how you look at it. As I explained in an earlier post, the Court's conservatives and liberals have long argued about whether to characterize laws as regulations on the basis of status or conduct. I think Justice Sotomayor's dissent makes some fair points, so long as you accept the "status" framing of the case. I won't rehash that debate here.

Rather, what is important is that the majority recognized that Robinson was inconsistent with original meaning, and declined to extend that non-originalist precedent.

The plaintiffs sought to extend Robinson:

If Robinson does not control this case, the plaintiffs andthe dissent argue, we should extend it so that it does. Perhaps a person does not violate ordinances like Grants Pass'ssimply by being homeless but only by engaging in certain acts (actus rei) with certain mental states (mentes reae).Still, the plaintiffs and the dissent insist, laws like these seek to regulate actions that are in some sense "involuntary," for some homeless persons cannot help but do what the law forbids. See Brief for Respondents 24–25, 29, 32; post, at 16–17 (opinion of SOTOMAYOR, J.). And, the plaintiffs and the dissent continue, we should extend Robinson to prohibit the enforcement of laws that operate this way—laws that don't proscribe status as such but that proscribe acts, even acts undertaken with some required mentalstate, the defendant cannot help but undertake.

But the Court declined that invitation:

As we have seen, Robinson already sits uneasily with the Amendment's terms, original meaning, and our precedents. Its holding is restricted to laws that criminalize "mere status." Nothing in the decision called into question the "broad power" of States to regulate acts undertaken with some mens rea. And, just as in Powell, we discern nothing in the Eighth Amendment that might provide us with lawful authority to extend Robinson beyond its narrow holding.

This is precisely what the Supreme Court, and all courts should do with non-originalist precedents that do not govern a particular case: refuse to extend it to new circumstances. I developed this theme in my article, Originalism and Stare Decisis in the Lower Courts. Even if an erroneous precedent cannot be overruled, courts should isolate the damage, and decline to extend it to new circumstances.

Oh, and one last piece of advice: in every future Eighth Amendment case, the defendant should preserve the issue of whether any applicable overrule Warren and Burger Court precedents. I can't imagine a case like Robinson has any reliance interests value, and it was egregiously wrong the moment it was decided.

Update: Mike Rappaport and John McGinnis make a similar point about Grants Pass:

Only after outlining the original meaning of the clause did Gorsuch address Robinson. He noted that the issue in Grants Pass was behavior, not status, because the statute penalized an action: camping. Moreover, unlike the statute in Robinson, the Grants Pass enactment was a general law, applying not only to the homeless but to anyone who camped. The Court thus refused to extend the Robinson precedent to this case on originalist grounds.

Grants Pass thus provides an excellent example of what the Supreme Court can do when confronted with precedent inconsistent with original meaning. It can first set forth the original meaning. And then it can refuse to extend or cut back the precedent toward the original meaning if it can do so with a tractable and principled distinction.

Today the Cato Institute published my article, "A Cosmopolitan Case Against World Government." It is part of Cato's "Defending Globalization" series. Here's an excerpt from the introduction:

The debate over world government and "global governance" typically pits cosmopolitan supporters of globalization against nationalist champions of state sovereignty. The latter fear world government because of the threat it poses to nationalism and the autonomy of nation-states. They also typically view free trade and international migration with great suspicion.

However, one need not be a nationalist to oppose world government. I am a cosmopolitan supporter of free trade and an advocate of a strong presumption in favor of open borders immigration. In addition, I am no fan of nationalism, which I consider to be one of the greatest evils of the modern world.

Yet I also take a dim view of world government and other similar proposals. These positions are not contradictory. Indeed, they are mutually reinforcing. Precisely because I see great value in free migration and the opportunity to "vote with your feet," I oppose the creation of a global state whose authority would be almost impossible to escape.

A world government would close off opportunities for foot voting. It would also undermine valuable interjurisdictional competition and exacerbate some key weaknesses of the democratic process. In the worst-case scenario, it could lead to the establishment of a global tyranny from which there may be no escape. Despite the claims of advocates, a world government is also probably not necessary to solve the world's major problems. Indeed, it might even exacerbate some of those dangers.

In addition to critiquing the idea of world government, the article explains why this issue is worth considering, despite the fact there is very little chance that anything like a world government will actually be established anytime soon.

The article is an expanded and updated version of a piece I wrote for the World Government Research Network site in 2017. I also have an extensive discussion of this issue in Chapter 8 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

City of Grants Pass v. Johnson was decided on June 28, along with several other more high-profile cases, including Fischer and Loper Bright. Had this case been decided earlier in the term, I think it would have gotten more attention. This case put on display two diametrically opposite modes of judging: How narrowly to read precedent? Should non-originalist precedent be extended? How should policy considerations factor into constitutional law? What role should amicus briefs play? Should courts review legislative records to determine improper motivation or "animus"? And so on. I'll address these issues in another post.

Here, I'd like to write about the legal issue in the abstract. Specifically, should the government be able to prohibit homelessness? The title of this post is a play on the classic law school hypothetical: No Vehicles In the Park? Generations of law students have been asked to interpret a sign with this message. Does it prohibit cars? Bicycles? Baby carriages? Baby-carriers? Wheel chairs? Crutches? Horses? Wheel-barrows? Hovercrafts? Piggyback rides? Potato sack race? And so on. It is a fun classroom exercise, which is quite relevant to Grants Pass.

Grants Pass divides about how to understand the local law. The majority, per Justice Gorsuch, reads the law to prohibit "camping" in public places, including parks. The dissent, per Justice Sotomayor, reads the law to prohibit the mere existence of being homeless, such as by sleeping with a blanket in public places.

The same act can be characterized in two very different ways. Why does it matter? Because the government is well within its powers to prohibit actions. For example, the government can prohibit the use of narcotics. But can the government prohibit the status of being a drug addict? In Robinson v. California (1961), the Supreme Court held that California could not enforce its law making "the 'status' of narcotic addiction a criminal offense." For now, let's put aside whether Robinson was a correct application of the Eight Amendment (it was not) and whether this precedent should be extended to the context of homelessness (it should not).

The law often has difficulties distinguishing between status and conduct. Long before Obergefell, there was a vigorous debate about laws concerning gays and lesbians. For example, did the sodomy law at issue in Lawrence v. Texas (2003) prohibit the act of gay sex, or did it criminalize the status of being gay--that is, an act that is intrinsic to being homeless. Justice Scalia's dissent offered this rejoinder to Justice O'Connor's concurrence:

JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class." Ante, at 5.

Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

Seven years later, the Court decided Christian Legal Society v. Martinez (2010). Would a policy excluding gay students from a student organization on campus discriminate on the basis of engaging in activity viewed as sinful (gay sex) or on the basis of simply being gay.

In Christian Legal Society v. Martinez, Justice Ginsburg rejected this distinction:

CLS contends that it does not exclude individuals because of sexual orientation, but rather "on the basis of a conjunction of conduct and the belief that the conduct is not wrong." Brief for Petitioner 35–36 (emphasis deleted). Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U. S. 558, 575 (2003) ("When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination." (emphasis added)); id., at 583 (O'Connor, J., concurring in judgment) ("While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class."); cf. Bray v. Alexandria Women's Health Clinic, 506 U. S. 263, 270 (1993) ("A tax on wearing yarmulkes is a tax on Jews."). See also Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae 7–20.

But in Lawrence and related cases, the Court's conservatives advance that this distinction is valid. Under the law, is it possible to hate the sin but love the sinner?

In Grant's Pass, the Court's right and left continue to divide along similar lines. The Grants Pass majority views the law as a regulation of conduct by homeless people. And the Grants Pass dissent views the law as a regulation of the status of being homeless--that is, an act that is intrinsic to being gay.

To state it more simply, does the law prohibit the use of a vehicle in the park? Or does the law prohibit the existence of a vehicle in the park?

7/9/1868: The Fourteenth Amendment is ratified.

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