The Volokh Conspiracy

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

This week on the Short Circuit podcast: A First Amendment 2-4-1. Non-governmental speech in a Minnesota public school and big political party protection in New York.

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Earlier this week, I revisited the Mueller investigation in light of Trump v. United States. My conclusion: the entire basis of the investigation would have been void in light of the Court's decision. Virtually everything that triggered Mueller's appointment was a "core" presidential power. Moreover, nearly the entirety of the investigation probed Trump to determine whether he had "corrupt" motives--an inquiry that Chief Justice Roberts's decision foreclosed. In hindsight, this investigation should have never happened. I think we would have been all better off without that colossal waste of time.

Going forward, do the special counsel regulations have any vestigial role with regard to investigations of the President? I think the answer has to be no. And agreeing with me is Bob Bauer.

At Lawfare, Bauer explains that his thinking on this issue has changed since Trump v. United States--a decision he vigorously disagrees with on many levels:

Jack Goldsmith, my co-author of "After Trump: Reconstructing the Presidency," and I have written about and proposed reforms to the special counsel regulations pursuant to which the department may conduct criminal investigations of the president. Goldsmith has since argued that the regulations have proved to be a failure, attempts at reform will fail, and the rules ought to be withdrawn. He made his case by appeal to experience. I did not agree. I have had second thoughts and now conclude that, after the Supreme Court immunity decision, there's little point left to these regulations, at least insofar as they purport to authorize investigations of presidents. Perhaps they could remain in place for cases involving other senior administration officials, but it is not obvious why, once on the chopping block, any piece of them survives.

The Archibald Coxes, the Leon Jaworskis, the Robert Muellers, the Jack Smiths: We may never see the likes of them again.

Bauer is nostalgic for Mueller and Smith. I say good riddance. The concept that prosecution can be divorced from politics was always a fantasy. Justice Scalia's dissent in Morrison has gone unanswered for nearly three decades. He was right.

It is true that the special counsel regulations remain on the books for lower-ranking officials. And I agree with Zach Price that it will be very hard for the President to do much mischief without the help of subordinates who lack immunity. But we should not pretend that some "independent" prosecutor can perform any meaningful function.

[I am pleased to pass along this guest post from Professor Rob Natelson, a leading originalist scholar whose work is frequently cited in Supreme Court opinions.]

The Supreme Court's June 20 decision in Moore v. United States continues the long-standing controversy over the Constitution's distinction between "direct" and "indirect" taxes. Writing for the Court, Justice Brett Kavanagh stated that "Generally speaking, direct taxes are those taxes imposed on persons or property" while indirect levies are "imposed on activities and transactions." Apparently based on that standard, he concluded that income taxes are indirect.

In her concurring opinion, Justice Ketanji Brown Jackson wrote, "[I]t appears the category [of direct taxes] was originally intended to encompass only land and head taxes."

From an originalist standpoint, these statements are wrong. A full review of the historical record leaves little doubt that the direct/indirect distinction was both clear to the Founders and quite different from either description in Moore.

Although the difference between direct and indirect taxes probably did not affect the result in Moore, it continues to be consequential. It governed the result in National Federation of Independent Business v. Sebelius, the 2012 case that upheld the penalty in the Affordable Care Act (ACA) for not purchasing health insurance. The Court held that (1) the penalty, although intended primarily to affect behavior and not raise revenue, was a tax, and (2) that it was an indirect tax.

For reasons set forth below, both holdings were erroneous—the product, I believe, of the fact that parties and amici both under-briefed the tax issue. The Founding-era record shows that the ACA penalty was not a tax. And that if it were a tax, it would be a capitation, and therefore direct.

More recently, some commentators have argued that a federal wealth tax should be considered "indirect." Some maintain that the decision in Pollock v. Farmers Loan and Trust, holding that the income tax is direct, was erroneous. Then there are those who think the direct-tax apportionment rule was a product of slavery.

The Founding-era record does not support any of these contentions.

Direct Tax Statutes

During the 18th century, direct tax laws were omnibus statutes imposing specific rates on an identified base—sometimes called the "ratable estate." The content of the base occasionally was amended, but mostly remained stable from year to year. However, the elements in the base were subject to periodic assessment. Hence variations on the word "assessment" were associated closely with direct tax statutes.

Such statutes commonly apportioned tax revenue among counties, towns, or other subdivisions.

Apportionment aside, direct tax statutes were somewhat similar in structure to modern real property tax laws. And early (pre-1700) statutes of this kind, particularly in Britain, focused mostly on land and improvements to land.

By the Founding-era, although land continued to be the most valuable part of the base, the statutes had been expanded to include many other items. By way of example, consider a British direct tax law adopted in the reign of Queen Anne (1713)—linked here. Note that it is elaborately apportioned among political subdivisions. Note also that the base includes not only land but wealth and income: "ready Money" (cash), debts receivable, other personal property, and income from a range of employments.

The income tax rate imposed in this statute was ten percent—that is, "Two Shillings for every Twenty Shillings which he she or they do receive in One Year by virtue of" such income.

Now let's go stateside. Here is a link to a 1780 Massachusetts direct tax statute. It also is apportioned by geographic location. It levies on "male polls above the age of sixteen years," personal estates, "including money at interest . . . monies of all kinds in hand, and also the amount of the just value of all goods, wares, and merchandize, stock in trade, vessels of all sorts . . . plate, horses, oxen and cattle . . . sheep, swine and grain of all sorts, and all kind of produce of the land, and all other property whatsoever . . . [unimproved land and certain general exceptions follow]." Thus, this direct tax statute levied on almost all kinds of wealth and property.

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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.

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