The Volokh Conspiracy

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

Since the Supreme Court term ended, there have been numerous articles on Justice Barrett, highlighting her independence and thoughtfulness, noting she is simultaneously quite conservative and yet cautious. See, for example, these articles from NBC News and the Washington Post.

In today's New York Times, in an op-ed titled "The Most Interesting Justice on the Supreme Court Is Also the Loneliest," law professor Stephen Vladeck writes about Justice Barrett's performance this past term. It begins:

When this Supreme Court term began last October, one of the more intriguing predictions from commentators was that Justice Amy Coney Barrett — entering her third full term on the court — would come out of her shell and emerge as the court's new swing justice, casting the decisive vote in the most divisive cases.

The commentators got half of that right: There's little doubt, in looking at the oral arguments the court has conducted and the decisions it has handed down over the past nine months, that Justice Barrett has found her literal and figurative voice — and has easily become the most interesting justice. Her questions at argument are penetrating; the analysis in her written opinions spare no one in their detail.

The second part of that prediction didn't come true, though. Justice Barrett did side with some or all of the three Democratic appointees in several of the term's most important cases — but her fellow conservatives seldom joined her. Indeed, while Justice Barrett was establishing her principled independence in the middle of the court, the other five Republican appointees moved only further to the right. . . .

The justice reflected in all of these cases is someone who comes across in her writings as principled, nuanced and fair-minded — regardless of the bottom line that her votes end up supporting. Many of us may not agree with the principles reflected in her writings (like her majority opinion in a case holding that U.S. citizens don't have a property interest in the immigration status of their noncitizen spouses). What cannot be doubted is that they are principles, and that, to an extent greater than many of her colleagues, Justice Barrett does her best to hew to them.

In some respects, the article echoes points made by Professor Noah Feldman, a liberal professor who endorsed Barrett's qualifications when she was nominated to the High Court. In another respect, the article suggests that Justice Barrett has been precisely the sort of justice that her advocates and defenders suggested she would be -- and that her critics who drew ugly caricatures were profoundly wrong. Put another way, if someone is surprised by Justice Barrett's performance on the Court, that may say more about them than it does about Amy Coney Barrett.

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From Lax v. CUNY, decided Friday by N.Y. trial court judge Gina Abadi:

Plaintiffs are observant Jewish professors at Kingsborough Community College (Kingsborough), which is part of CUNY [City University of New York]. Defendant Professional Staff Congress (the Union) is the labor union for the faculty. Defendant the New Caucus of the Professional Staff Congress (New Caucus) is a political party of the Union. [Defendants] Wetzel and Perea were professors at Kingsborough and members of the New Caucus.

On February 26, 2021, plaintiffs filed this action alleging … hostile work environment discrimination on the basis of religion[,] … retaliation [for making discrimination complaints], … [and] assault and false imprisonment.

Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, anti-religious discrimination from a particular segment of fellow faculty members who are the leaders of a faculty group called the Progressive Faculty Caucus of Kingsborough Community College (PFC) and are also members of the New Caucus. Plaintiffs claim that the New Caucus members collaborated with the PFC members to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs, and others at Kingsborough. Plaintiffs allege that Wetzel and Perea actually participated in, and aided and abetted, the conduct giving rise to their discrimination and retaliation claims.

Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that the PFC denied entry to every observant Jewish applicant, including Lax; that the PFC and the New Caucus members lobbied against Lax and other observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members, including Lax; that the PFC and the New Caucus members wrote in a communist newspaper regarding their "struggle" against a "network of Zionists" among the faculty at Kingsborough, and made similar comments in a publicly distributed campus survey; that there were discussions between Wetzel and others that observant Jews were undesirable for PFC membership; that Perea engaged in a malicious and relentless campaign to get Goldstein fired because he was a Zionist; that an internal PFC email mentioned the need to "bring violence to the Zionists on campus"; that anti-Semitic flyers were distributed on the Kingsborough campus; that a portrait of Goldstein's father was defaced; that nails were found in the tires of cars belonging to Lax and Goldstein; and that the PFC members called for plaintiffs' removal from their jobs at Kingsborough.

[Defendants] Wetzel … and Perea[ cross-claimed, arguing, among other things,] that CUNY is a government entity directly subject to the First Amendment … and that, in addition, CUNY has promised to protect their academic freedom and freedom of speech in assertions made in its contract with them, in its faculty handbook, on its website, and elsewhere, on which they relied to their detriment. [Their cross-claim] further alleges that Wetzel and Perea have used their academic freedom and First Amendment rights to utter progressive political views and criticism of [plaintiff] Goldstein, which plaintiffs claimed were anti-Semitic. It also alleges that Wetzel and Perea's political criticism of Israel is not anti-Semitic, and that the complaint's specific assertions against them regarding their alleged actions of anti-Semitism are frivolous.

Free Speech Campus Free Speech

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In May 2017, President Trump fired FBI Director James Comey. That decision triggered Acting Attorney General Rod Rosenstein's appointment of Robert Mueller as Special Counsel. That investigation would span the bulk of Trump's term. Although Trump was ultimately not indicted, Mueller released a 400-page report that identified a series of what could have been indictable offenses, but for DOJ policy which prohibited the indictment of a sitting President.

Many of the constitutional issues that Mueller grappled with were unsettled when his report was written.Nixon v. Fitzgerald spoke to civil presidential immunity, but the Supreme Court had never addressed presidential criminal immunity. Seven years later, Chief Justice Roberts's majority decision in Trump v. United States has undermined key aspects of Mueller's framework. Indeed, with the benefit of hindsight, I do not even think Rosenstein's decision to appoint Mueller in the first place would have been proper. Firing Comey was a "core" exercise of Article II powers that could not be criminalized by a generally-applicable obstruction statute. I alluded to this point in my post about why the Chief Justice wrote such a sweeping opinion. Here, I will compare and contrast Mueller on Trump, and Roberts on Trump.

First, Chief Justice Roberts explains that the President's exercise of the removal power is a "core" power, which Congress cannot criminalize.

Some of the President's other constitutional powers also fit that description. "The President's power to remove—and thus supervise—those who wield executive power on his behalf," for instance, "follows from the text of Article II." Seila Law LLC v. Consumer Financial Protection Bureau (2020). We have thus held that Congress lacks authority to control the President's "unrestricted power of removal" with respect to "executive officers of the United States whom he has appointed." Myers v. United States (1926); see Youngstown (Jackson, J., concurring) (citing the President's "exclusive power of removal in executive agencies" as an example of "conclusive and preclusive" constitutional authority); cf. Seila Law (noting only "two exceptions to the President's unrestricted removal power").

And that robust removal power is at its apex with regard to prosecutorial decisions:

Investigative and prosecutorial decisionmaking is "the special province of the Executive Branch," Heckler v. Chaney (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump's threatened removal of the Acting Attorney General likewise implicates "conclusive and preclusive" Presidential authority. As we have explained, the President's power to remove "executive officers of the United States whom he has appointed" may not be regulated by Congress or reviewed by the courts. Myers. The President's "management of the Executive Branch" requires him to have "unrestricted power to remove the most important of his subordinates"—such as the Attorney General—"in their most important duties." Fitzgerald.

This passage would seem to negate any potential criminal liability for Trump's firing of James Comey, and his threats to fire Acting Attorney General Rod Rosenstein as a means to thwart the Mueller investigation. Full stop. If Chief Justice Roberts is correct, Mueller should have never been appointed in the first instance. Moreover, Mueller would have no claim that the threatened-firing of Rosenstein is a form of "obstruction." I think Fischer provides more support for that conclusion.

Second, the Court finds that the President's seeking of advice and counsel from his principal officers are also part of his "core" powers:

Certain allegations—such as those involving Trump's discussions with the Acting Attorney General—are readily categorized in light of the nature of the President's official relationship to the office held by that individual. . . .

The indictment's allegations that the requested investigations were "sham[s]" or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

Robert Mueller spent countless hours interviewing the President's advisors, including people at the Department of Justice and the White House Counsel's Office. Those interrogations severely compromised the President's ability to seek advice from his administration. The lawyers all feared that they might be indicted!

And to what end? Mueller was trying to probe what Trump told them, what Trump asked them, and what Trump's intentions were. But this passage by the Court suggests that these conversations could not form the basis of criminal liability. Merely seeking advice from advisors, including principal officers, is "absolutely immune." Indeed, the Opinions Clause gives the President the power to request opinions from his "Principal Officers." (This provision made an appearance in Trump v. New York.) Mueller should have never interrogated the President's advisors, and attempted to impose criminal liability on the basis of the President's requests for advice.

Third, the Court embraces a clear-statement rule with regard to the presidency. Specifically, the Court attributes the clear-statement rule to the Department of Justice, and then agrees with that attribution.

7/8/1941: Justice James Byrnes takes oath.

7/7/1893: Justice Samuel Blatchford dies.

What a real invasion looks like. Russian armored vehicle in Ukraine. March 2022. (NA)

Some conservatives have argued that illegal migration and drug smuggling across the southern border qualify as "invasion" under the Constitution. This issue is currently being litigated in two cases before the US Court of Appeals for the Fifth Circuit. Two leading constitutional theorists - Larry Solum (University of Virginia) and Mark Tushnet (Harvard) - have recently written posts outlining how constitutional theory could be used to address the meaning of "invasion." Here's an excerpt from Tushnet's post:

What are we to make of the term "invasion," which occurs three times in the Constitution (in the habeas-suspension clause, in the Compact Clause [as "actually invaded"], and in Article IV)? The term has its place in contemporary conservative discourse, which characterizes what's happening at the US southern border as an invasion. One can imagine a Trump administration suspending habeas in connection with those who cross the border without authorization. Conservatives might assert that Article IV places a duty on the United States to protect states against invasions (one of which is occurring) and that the President's failure to do so provides the basis for impeaching him for failing to take care that the laws be faithfully executed. (At least one impeachment resolution invokes this theory.)

Is this an example of (a) impermissible linguistic drift or (b) permissible specification of vague constitutional terms within the bounds of reasonable interpretive flexibility? I did some quick and dirty research (this is a blog post, after all), and came up with this. The 1785 edition of Samuel Johnson's dictionary defines "invasion" as "a hostile entrance upon the rights or possessions of another," and provides four illustrations, of which two involve invasions by organized military forces of hostile nations (and the other two of which seem to me metaphorical). Noah Webster's 1828 dictionary's first definition is: "a hostile entrance into the possessions of another; particularly, the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force. The north of England and south of Scotland were for centuries subject to invasion each from the other. The invasion of England by William the Norman was in 1066."

My real puzzle isn't about "the" answer to the question posed in the preceding paragraph. (About 15 years ago I suggested, in passing, that the September 11 attacks could plausibly be characterized as an invasion for purposes of habeas suspension, thus assuming that organized attacks by a hostile non-state actor could count as an invasion. What about the ISIS-influenced attack by a single individual at Fort Hood years later?) The puzzle is about how to think about figuring out the answer.

I actually don't think the issue here is particularly difficult. Both at the time of the Founding and today, "invasion" usually means an organized armed attack, but also has secondary meanings, many of which are more metaphorical. Which one is relevant in a given case depends on the situation.

The use of "invasion" in the Constitution is an example of how the meaning of a potentially ambiguous word becomes clear in context. In other situations, "invasion" can sometimes mean a mere intrusion on rights (e.g. - "invasion of privacy"), or even just a metaphorical conflict, like the 1960s "British Invasion" of UK rock bands coming to perform in the US.

In the context of giving states the right to "engage in war" in response (which the Constitution authorizes a state to do in the event it is "actually invaded"), suspending the writ of habeas corpus (which the federal government can do if there is an "invasion"), and other relevant features of the Constitution, it is limited to organized armed attacks. Founding-era evidence supports this position. For more detail see my Lawfare article on this subject, and the amicus brief I filed in one of the Fifth Circuit cases on behalf of the Cato Institute and myself.

Solum's post is more extensive and detailed, and cannot easily be summarized. Anyone interested in this topic should read the whole thing! Here, I will only note that Solum emphasizes that, from an originalist perspective, "we would not want to focus solely on the word 'invasion.' Instead, we would aim to determine the meaning of whole clauses and articles in the context."

I agree completely! It is the context, particularly the wording of the clauses where the word appears, that ultimately determines the meaning of "invasion" in the Constitution. And the context makes clear that it is limited to organized armed attacks, and does not cover illegal migration, drug smuggling, and the like.

I think this context is also decisive from the standpoint of living constitutionalism. No plausible living constitutionalist theory would allow states to start a war over illegal migration or drug smuggling, without the authorization of the federal government. Nor would it give the federal government a blank check to suspend the writ of habeas corpus any time such things happen. As noted in my article and amicus brief, the latter power would not be limited to detaining undocumented migrants, but would cover US citizens and legal residents, as well.

I am planning to write an academic article on the meaning of "invasion," where I will address these issues in greater detail.

UPDATE: I initially neglected to include a link to Larry Solum's post. That error has now been corrected.

A thoughtful and optimistic column; I enjoyed reading it, and I thought many of you might, too. Singal is somewhat to the left of where I am on economic matters, but he strikes me as an unusually thoughtful and clearheaded thinker, plus a very good writer. An excerpt:

When I was 24 years old or so, working a fun but low-profile job as an online editor at the Center for American Progress's youth wing, I asked Jon Chait, one of my favorite writers, if he'd meet up with me. Because he is a mensch, he agreed to, and we got lunch in D.C. somewhere.

At one point I was complaining about how flawed the U.S. was and how vital it was to fix things, and Chait responded, in his characteristically mild manner something like: Well, a few generations ago our ancestors lived in villages where sometimes other people would come in and just ransack everything and kill everyone. Things aren't that bad.

The point wasn't that the U.S. was perfect — Chait didn't and doesn't think the U.S. is perfect, and around that time he published a book criticizing conservative economic policy for making life harder for Americans while enriching the wealthy. But the sense I get, looking back on that conversation, was that Chait was trying to cool the jets of a young and passionate would-be intellectual type who was reciting lefty mantras rather than really thinking things through.

Whenever I engage in the navel-gazing act of thinking about how my views have changed since I started writing professionally, I remember that conversation, because I think it captured something important….

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7/6/1835: Chief Justice John Marshall dies.

In Trump v. United States, the actual distance between the majority and dissent is not vast. As Justice Barrett's concurrence points out, there is "substantial agreement" on certain points. Justice Sotomayor, in dissent, wrote that "The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue." The disagreement really turns on how the Chief Justice chose to address other issues. To that end, the dissent chose very strong rhetoric to illustrate how misguided the majority opinion was.

Three rhetorical themes were repeated: abuse of power, personal gain, and corruption.

First, Justice Sotomayor referred three times to the concept of an "abuse of power":

Ultimately, the majority pays lip service to the idea that "[t]he President, charged with enforcing federal criminal laws, is not above them," but it then proceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power.
On the majority's view (but not Trump's), a former President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to "at least presumptive" criminal immunity for those acts.
Second, the majority's new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.

Long-time readers may recall that the first Trump Impeachment was premised on a charge of "abuse of power." Seth Barrett Tillman and I acknowledged that "abuse of power" could form the basis of an article of impeachment, but we explained that this term was exceptionally difficult to define with regard to politicians. I observed in the New York Times:

I've now had five full days to think about Trump v. United States. I wrote a series of posts about Chief Justice Roberts's majority opinion. When the Chief wants to be clear, he is very clear. When the Chief wants to be opaque, he is very opaque. And when the Chief is trying to hold together a majority opinion, he can be conciliatory. In Trump, Roberts wrote crystal clear prose. And he had no problem holding together his five votes. But the majority opinion made no effort to bring on Justice Barrett as a sixth vote.

Why? In Part III-C, the Court reached out to decide an issue that wasn't presented yet: prosecutors cannot introduce as evidence conduct that is otherwise protected by presidential immunity. Roberts explained:

Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors' deliberations will be prejudiced by their views of the President's policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency

This conclusion follows naturally from the sweeping nature of the Court's decision, but was this question really presented? In the current posture, Trump is an interlocutory appeal from a denial of immunity. There have been no motions in limine to exclude any particular evidence. Indeed, there is no trial date on the horizon. So in a sense, this issue was premature. Why even opine on this issue? As I noted in an earlier post, the Chief Justice appears to be responding to the lawfare against Trump over the past several years, and was trying to clamp down on future efforts to criminalize the presidency. Along similar lines, Will Baude wrote in the Times, "the court sees itself as trying to save the country from other institutions' disproportionate responses to Mr. Trump." Likewise, President Trump's recent filing in the Southern District of Florida sought to stay the proceedings in light of the "ongoing lawfare campaign."

What about Justice Barrett? For sure, we know that she does not agree with Part III-C of the majority opinion. The first sentence of the concurrence states:

For reasons I explain below, I do not join Part III–C of the Court's opinion.

She elaborates on this disagreement later:

I understand most of the Court's opinion to be consistent with these views. I do not join Part III–C, however, which holds that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege. I disagree with that holding; on this score, I agree with the dissent. The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example

Justice Barrett could have written that this evidentiary issue is not yet live, so there is no need to decide it. That would have been the more minimalist approach. But like the majority, Barrett also sought to reach out and resolve an issue that is not yet presented, in full anticipation that this issue would return to the Court should a trial happen. And she resolved it against Trump. Barrett wrote at the tail end of her concurrence:

I appreciate the Court's concern that allowing into evidence official acts for which the President cannot be held criminally liable may prejudice the jury. But the rules of evidence are equipped to handle that concern on a case-by-case basis. Most importantly, a trial court can exclude evidence of the President's protected conduct "if its probative value is substantially outweighed by a danger of . . . unfair prejudice" or "confusing the issues." Fed. Rule Evid. 403. The balance is more likely to favor admitting evidence of an official act in a bribery prosecution, for instance, than one in which the protected conduct has little connection to the charged offense. And if the evidence comes in, the trial court can instruct the jury to consider it only for lawful purposes. I see no need to depart from that familiar and time-tested procedure here.

I see this analysis as consistent with Barrett's Vidal concurrence: where original meaning does not provide a clear meaning, she reverts to balancing tests. And Federal Rule of Evidence 403 is a quintessential balancing test--albeit one adopted by the courts and congress, so it is not "judge made" in the sense of Barrett's Vidal test.

Roberts manages a footnote response to Barrett at the end of Part III-C:

Justice Barrett disagrees, arguing that in a bribery prosecution, for instance, excluding "any mention" of the official act associated with the bribe "would hamstring the prosecution." But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President's motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be "highly intrusive" and would "'seriously cripple'" the President's exercise of his official duties. Fitzgerald.. And such second-guessing would "threaten the independence or effectiveness of the Executive." Trump v. Vance (2020).

Roberts is not convinced the Rules of Evidence provide much safeguards. He is trying to cut off the lawfare, from top to bottom.

This much of the disagreement between Barrett and Roberts is clear. What else do they agree on? Five days later, I am still not entirely sure. The syllabus of the opinion states:

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

This year the Fourth of July isn't just America's independence day—it's also, ironically, general election day in the old mother country. Over at Discourse Magazine, IJ's own Anthony Sanders uses this coincidence as an opportunity to reflect on the differences between the two countries. Such as: when Americans declared their independence, it ended up not just being from Britain but from the British constitutional system. Parliamentary supremacy was out, written "higher law" constitutions were in. Which meant judicial review was too. Yet, some judges keep wanting to be British, even today.

New on the Short Circuit podcast: British connections with the US of A, old and new. The Supreme Court's affirmation of the ancient common law right of trial by jury in SEC v. Jarkesy and a Fifth Circuit crime caper at the British Consul General's home.

[This post is co-authored with Professor Seth Barrett Tillman.]

In Trump v. United States (July 1, 2024), Justice Thomas wrote a concurrence that opined on the constitutionality of the Special Counsel's appointment.

The Constitution's Appointments Clause provides:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Justice Thomas made several observations about the Appointments Clause.

First, Justice Thomas wrote:

Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be "established by Law." [FN1]

[FN1] Although a Government official may also be a "nonofficer employe[e]," I set aside that category because it is difficult to see how an official exercising the Department of Justice's duties to enforce the criminal law by leading a prosecution could be anything but an officer. Lucia v. SEC (2018) (Thomas, J., concurring); see SW General (opinion of Thomas, J.). If the Special Counsel were a nonofficer employee, the constitutional problems with this prosecution would only be more serious. For now, I assume without deciding that the Special Counsel is an officer. [slip op. at 3.]

It is indeed quite problematic for a "nonofficer employee" to exercise the powers of an "Officer of the United States" who can lead a criminal prosecution. The Special Counsel, for example, is granted the powers of a United States Attorney. If the Special Counsel is merely a "nonofficer employee" exercising the powers of an "Officer of the United States," then the associated "constitutional problems" are, indeed, "serious."

We appreciate that Justice Thomas only "assumed without deciding" that the "Special Counsel is an officer" of the United States, and not a "nonofficer employee." But there is an argument that the Special Counsel, which is a non-continuous position, cannot be an officer at all. We have raised that argument in an amicus brief before the U.S. District Court for the Southern District of Florida. Blackman also presented oral argument on this issue on June 21, 2024.

Second, Justice Thomas observed that the Constitution establishes a limited number of positions:

The Constitution itself creates some offices, most obviously that of the President and Vice President.

No statute was needed to establish the presidency or vice presidency. We could add to this list the Speaker of the House and Senate President Pro Tempore. We have long taken the position, and for several independent reasons, that these four positions, as well as rank-and-file members of Congress, are not "Officers of the United States." One of those reasons is that these positions were not established "by law," which means, "by statute," but rather, these positions were established by the Constitution itself.

Additionally, the text provides that "Officer of the United States" positions "shall be established by Law." The word "shall" suggests some future action after the Constitution went into effect. By contrast, the elected federal apex positions were established by the Constitution. No future federal legislative action was needed to establish these positions.

Third, Justice Thomas agreed with part of our reading of the Appointments Clause: "Officers of the United States" must be established "by law." Thomas wrote:

Although the Constitution contemplates that there will be "other Officers of the United States, whose Appointments are not herein otherwise provided for," it clearly requires that those [other] offices "shall be established by Law." §2, cl. 2. And, "established by law" refers to an office that Congress creates "by statute." Lucia v. SEC (2018) (Thomas, J., concurring); see also United States v. Maurice (CC Va. 1823) (Marshall, C. J.).

The necessary consequence of Thomas's position is that the President, the Vice President, as well as the Speaker of the House and the Senate President pro tempore are not "Officers of the United States." They can't be, because their positions were not established by law.

You may think Justice Thomas' and our position is obvious. But Justice Scalia's much vaunted letter to Tillman in 2014, which we published in 2023, took just the opposite position. Scalia wrote that the President, Vice President, Speaker, and Senate President Pro Tempore are "Officers of the United States." On this point, Thomas was correct, and Scalia was incorrect: "Officers of the United States" must be established by statute. The President, Vice President, Speaker of the House, and Senate President Pro Tempore, as well as rank-and-file members of Congress, are not established by statute. These stations are elected apex federal officials. In contrast to elected apex officials, as a general matter, "officers of the United States" and officers under the United States are appointed by and responsible to elected apex officials.

Moreover, I think we can understand Justice Thomas to reject the position that the President is somehow "appointed"—that is, the President's appointment "is otherwise provided for." We think Thomas would agree with the conventional view that the President is not appointed; rather, the President is elected by electors. By contrast, during the Section 3 litigation, some people argued that the President is appointed, rather than elected. But that argument has quickly faded from our collective sight.

Fourth, we wrote above that Thomas only agrees with part of our reading of the Appointments Cause. Thomas suggests that there may be other "officers of the United States" whose appointments are not provided for in Article II, Section 2, which includes the Appointments Clause. We read the text differently from Justice Thomas. In our view, the phrase "not herein otherwise provided for" is a null set. There are no "officer of the United States" positions filled by mechanisms beyond Article II, Section and the Appointments Clause. Rather, the "not herein otherwise provided for"-language is telling the reader that there are no "Officers of the United States" which are provided for elsewhere. All of the "Officers of the United States" are provided for in Article II, Section 2. If Thomas (and others) were correct on this point, the language in the Appointments Clause would be: "except for those Appointments which are not herein otherwise provided for," but it does not say that. Rather, it says: "whose Appointments are not herein otherwise provided for" telling the readers that Article II, Section 2 processes are the exclusive means for filling "officer of the United States" positions.

Thomas does not tell us what those other officers are whose appointments may be provided for elsewhere in the Constitution. His language, as we understand it, rules out the President, Vice President, and also the Speaker and President Pro Tempore, because all those positions are not established "by law." So one wonders: What positions does Justice Thomas have in mind? Perhaps Justice Thomas will address this specific point in a future opinion. In our view, "officers of the United States," principal and inferior, must be established by law, and must be appointed pursuant to the processes spelled out in Article II, Section 2. If a position is not appointed pursuant to Article II, Section 2 procedures, and is not established by statute, it cannot be an "Officer of the United States."

Trump v. United States did not present an Appointments Clause challenge. But this issue is pending before the U.S. District Court for the Southern District of Florida.

As I describe in my new memoir, A Life for Liberty: The Making of an American Originalist, I have identified as a libertarian since I was a junior in college. I still do. But for at least the past 10-15 years, I have felt that libertarianism as a political theory needed to be updated. In that same time period, I have noticed a growing schism among libertarians along lines that is difficult to define precisely. In recent years, many of those on one side of that schism, some of whom I have known since they were students, have started to avoid that label. I think that is premature. I believe libertarianism, with its core emphasis on individual freedom, remains a viable political philosophy that is superior to what is on offer from either progressives or conservatives, most of which is not systematic. As "national conservatives" have perceived, it is also at the core of those whose conservatism is based on liberty.

On Law & Liberty, I have a short essay entitled, Libertarianism Updated, discussing five possible areas where libertarianism could use some further development. I plan to develop these ideas into a future book. But because I write books, first and foremost, to discover what I think about ideas, these thoughts are still highly tentative--and I list them in descending level of confidence. That is, I feel more confident about the earlier points than the later.

This is from the beginning:

Libertarianism in the 1970s was an internally contested intellectual project, not a rigidly fixed set of policy positions. But unlike originalism, which has benefited from 20 years of internal intellectual debate among originalists, libertarianism has largely been frozen in amber since the 1970s.

I see five distinct ways that libertarian theory needs to up its game.

First, the need for natural law ethics in addition to natural rights; second, the need to distinguish between libertarian ideal theory and second-best libertarianism in a world of governments and competing nations; third, the need for a libertarian theory of citizenship and civil rights; fourth, the need to separate the public-private binary from the government-nongovernment binary; and fifth, the need for a more refined theory of corporate power and corporate rights.

Let me offer a few words about each.

You can read the rest here.

I have an op-ed in today's New York Times reflecting on the most recent Supreme Court term. I was originally going to write a piece that said "the Court is doing fine, basically!" but ended up concluding that there had to be a giant asterisk next to that.

It is currently titled A Principled Supreme Court, Unnerved by Trump. (My working title was "The Trump Exception." A cheekier title would have been "'Trump Derangement Syndrome' Derangement Syndrome.")

From the beginning:

At the end of another momentous term, the Supreme Court has issued major rulings that will reshape the law. Like much that the court does today, these decisions, in areas like administrative law, have been widely criticized as corrupt or illegitimate.

For the most part, this criticism does not give the Supreme Court enough credit. In case after case, it has rightly emphasized the importance of turning to historical understandings in deciding constitutional cases rather than imposing modern policy views. Most of the court's decisions are principled and sound — most but unfortunately not all.

There were two particularly salient blemishes on the court's performance this year — and they are particularly unfortunate because they related to Donald Trump.

From the middle:

Trump v. Anderson's holding lacked any real basis in text and history and also is at odds with the basic structure of the Electoral College, in which states have primary authority to decide how their slates of electors are chosen. The ruling's real function was to let the court reverse the Colorado Supreme Court and avoid the political firestorm that might have ensued, without requiring the court to take sides on what happened on Jan. 6. . . .

[Trump v. United States's] reasoning went well beyond any specific part of the Constitution or any determinate constitutional tradition. Its methodology was explicitly grounded in Nixon v. Fitzgerald, a policymaking precedent from the 1980s akin to ones the court has criticized elsewhere. Justice Barrett, who joined only part of the majority, wrote a concurring opinion proposing a narrower, much more grounded form of immunity limited to core executive acts.

What is going on? Some critics say that everything the court does is generally unprincipled and illegitimate, which is not correct.

Others may suggest that the court is pro-Trump . . .

What is more likely is that in these cases, the court sees itself as trying to save the country from other institutions' disproportionate responses to Mr. Trump. It believes that lower courts and the Justice Department have succumbed to a version of Trump derangement syndrome, which is said to afflict so many liberal elites and even Never-Trump conservatives.

And the end:

The court is motivated by statesmanship, which the country sorely needs today. The problem is that this statesmanship is a form of the kind of outcome-oriented policymaking that the court disparages in other contexts. It trusts states to handle the homelessness crisis but not ballot access for insurrectionists, even though the Constitution trusts states with both. It trusts juries to handle fines for securities fraud but not punishment for abuse of the presidency, even though the Constitution trusts juries with both.

When dealing with Mr. Trump in particular, the court is so sure that our other institutions cannot be trusted that it fails to look in the mirror.

You can read the whole thing here. And as noted yesterday, I have a much more extended and nuanced breakdown of the immunity case on the Divided Argument podcast.

From Tuesday's decision in Calhoun v. Harrell by the Georgia Court of Appeals, written by Judge Anne Elizabeth Barnes and joined by Judge Elizabeth Gobeil:

Marion D. Calhoun appeals from a Stalking Three Year Protective Order entered against her and in favor of Carlotta Harrell. Calhoun contends that her conduct at issue—posting to Facebook comments relating to Harrell, the Chair of the Henry County Board of Commissioners—amounted to engaging in constitutionally protected political speech and was, at any rate, insufficient to authorize the order….

As background, it is undisputed that Harrell procured in 2021 a one-year stalking protective order against Calhoun. The record shows that the following year, in May 2022, Harrell returned to court and filed … the petition that led to the now contested three-year protective order. In support of that petition, Harrell swore, "Calhoun has continued to make posting[s] on social media that have an undertone of violence…. I continue to be in constant fear of my life and safety because of the constant stalking of Ms. Calhoun via social media." …

[At the hearing,] Harrell began her case by calling Calhoun to the stand. During such cross-examination, Calhoun described herself as a Black community activist; and she admitted that she had posted to Facebook a series of comments about Harrell, who is also Black. In response to various questions, Calhoun admitted that in a February 2022 post, she called Harrell and another individual "snakes"; that in a different February 2022 post, she called Harrell and another individual "MFERS" who had come from "traitorous ancestors"; that in another February 2022 post, she talked about Harrell's "blood line"; that in other February 2022 posts, she commented about Black politicians in Henry County; that in a March 2022 post, she referred to Harrell's father as "just another dam pimp in the pulpit"; that in a March 2022 post, she said that Black politicians in the county could come get her because they knew where she was; that in an April 2022 post, she said that Harrell was a "skunk"; that in another post, she described Harrell as a "piece of crap"; that in other posts between August 2021 and April 2022, she characterized Harrell's mode as "fetching and stepping," "skinning and grinning," and being a "house Negro." When asked whether she had meant her name-calling as compliments, as fighting words, or as something else, Calhoun's response included: "[Harrell] knows why I wrote that. She's black." [For more details on the posts, see pp. 3-6, nn. 5-14 of the opinion. -EV]

When Harrell took the stand, she testified that she was the Chairman of the Board of Commissioners in Henry County, but had brought the action in her private capacity explaining that "[i]t's about my safety"; that she was afraid of Calhoun; and that she considered certain of Calhoun's name-calling to be fighting words and as "words of incitement" intended "to rile up the Black community to attack [her]." Harrell further testified that Calhoun's "going after [her] family" was something Calhoun had added since the previous protective order. When asked how she felt about Calhoun's posts collectively, Harrell responded,

Free Speech Harassment

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7/5/1867: Justice James Wayne dies.

Supreme Court Justices are criticized. A lot. Alas, they are not able to respond. Publicly at least. But this was not always the rule. Chief Justice Marshall, who is celebrated as the most influential member of the Court, wrote a series of essays defending his opinion in McCulloch v. Maryland. These essays were published in 1819 under the pseudonym "A Friend of the Constitution." (Regular readers of Today in Supreme Court History will note I flag this essay every year on July 15.)

Was Marshall's essay proper or was it a breach of judicial ethics? Certainly by modern standards, this behavior would not fly. Some judges do defend their opinions in public, but they do so under their own names. (Whether judges privately give information to the press, not for attribution, is a different matter). And we know that critics are content to assess judges from long ago based on contemporary rules. But was Marshall's behavior proper at the time? We have at least one sign that this behavior was proper.

In Trump v. United States, Chief Justice Roberts saw fit to cite one of Marshall's pseudonymic essays:

This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on "transient results" may have profound consequences for the separation of powers and for the future of our Republic. Youngstown (Jackson, J., concurring). Our perspective must be more farsighted, for "[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional." Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall's Defense of McCulloch v. Maryland.

There you go. Presidential immunity should be assessed along similar lines as the constitutionality of the Bank of the United States.

This is not the first time Roberts has quoted this passage. He did so in (wait for it) NFIB v. Sebelius:

Our deference in matters of policy cannot, however, become abdication in matters of law. "The powers of the legislature are defined and limited; and that those lim- its may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress's policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. "The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional." Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall's Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.

In both cases, Roberts clung to the reputation of the great Chief Justice to provide cover for his decisions. While some Justices are still living in Justice Scalia's shadow, Roberts will always be in Marshall's shadow.

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