In today's Moody v. Netchoice, LLC, the Supreme Court sent back to lower courts the cases considering whether (and when) the Florida and Texas limits on social media content moderation are constitutional. The decision was complicated and limited, so here's a general summary.
[1.] Remember that the lawyer's true superpower is to turn every question into a question about procedure. Here, that procedural question was whether Netchoice—a consortium of internet technology companies—can challenge the Florida and Texas laws on their face as "overbroad," or must challenge the laws "as applied" to particular company practices. The Supreme Court unanimously concludes that the lower courts erred in deciding the overbreadth question; here's Justice Kagan's majority opinion on this, though all Justices generally agree on this point:
The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed.
But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment. As explained below, the question in such a case is whether a law's unconstitutional applications are substantial compared to its constitutional ones.
To make that judgment, a court must determine a law's full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry.
[2.] Justice Kagan's five-Justice majority (written for herself, Justice Sotomayor, Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett) concludes that the First Amendment likely protects the rights of platforms to pick and choose what appears in those "curated feeds," in particular "Facebook (or YouTube) … using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage)."
Consider, for instance, how platforms use algorithms to prioritize and remove content on their feeds. Assume that human beings decide to remove posts promoting a particular political candidate or advocating some position on a public-health issue. If they create an algorithm to help them identify and delete that content, the First Amendment protects their exercise of editorial judgment—even if the algorithm does most of the deleting without a person in the loop. In that event, the algorithm would simply implement human beings' inherently expressive choice "to exclude a message [they] did not like from" their speech compilation.
But what if a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will like—e.g., content similar to posts with which the user previously engaged? The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm.
And what about AI, which is rapidly evolving? What if a platform's owners hand the reins to an AI tool and ask it simply to remove "hateful" content? If the AI relies on large language models to determine what is "hateful" and should be removed, has a human being with First Amendment rights made an inherently expressive "choice … not to propound a particular point of view"? In other words, technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings' constitutionally protected right to "decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence." So the way platforms use this sort of technology might have constitutional significance."
Likewise, see Justice Alito's concurrence in the judgment, joined by Justices Thomas and Gorsuch:
Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves. But foreign persons and corporations located abroad do not. Agency for Int'l Development v. Alliance for Open Society Int'l, Inc. [II] (2020)….
What if the platform's corporate leadership abroad makes the policy decisions about the viewpoints and content the platform will disseminate? Would it matter that the corporation employs Americans to develop and implement content-moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms.
I will have more about the core issues in the Netchoice cases soon, but composing that post will take some time; for now, I just wanted to flag this discrete issue (and another one, in a coming post).
One of my pet peeves is the way the modern academic left insists on seeing all ethnic and racial conflict through the lens of the American black-white racial dynamic. One example is the notion that Nazi Germany was "white supremacist." Some Jewish leftists trying to fight antisemitism on the left run with this, arguing that the Nazis did not consider Jews to be white, and thus their leftist colleagues should stop treating Jews like white oppressors.
However, as a recent post by Daniel Saunders at the Times of Israel notes:
The Nazis wanted an Aryan race that was pure in blood, not white of skin. They focused on a range of what they saw as markers of "impure" blood, such as cranium size, nose shape and the presence or absence of ear lobes. Impure blood, as a notion, was all the more insidious for being largely invisible. That an Aryan could interact with a Jew without knowing it made the Nazis worry more, not less, about Jews than they did about people with more visible differences.
More importantly, the Aryan race which the Nazis consider the German people to exemplify, was not considered synonymous with some kind of "white race" by the Nazis, even though contemporary neo-Nazis do make such a connection.
The Nazis did not see their Aryan race as originating in Europe. They were very much aware that 'Aryan' is cognate to 'Iranian' and saw their race as originating in that part of Asia. The Nazis focused on the so-called Aryan race, a tiny subset of all the people who would be considered white today.
Almost all of the Nazis' victims would be considered 'white' in the politics of the contemporary West, not just Ashkenazi Jews, but Poles and Slavs, "gypsies" (another inaccurate term, for Roma, Sinti and Lalleri peoples), the physically disabled and the mentally ill, homosexuals and even prostitutes and congenital petty criminals. All were seen as not conforming to the "racial community" and potentially "contaminating" it if allowed to procreate as well as being seen in many cases to pose a more conventional military risk or drain on scarce resources. Anti-social behaviours such as petty crime, sex work or even alcoholism were seen as inherited and in need of removal from the racial community through "racial hygiene," lest these traits spread at the expense of more desirable ones.
One might retort that the Nazis may not have cared if Jews were racially white, but in modern parlance they believed the Jews lacked "whiteness," a neologism that essentially means not being an accepted part of the dominant group in society. That's true, but it also disclosed to show how the modern understanding of whiteness in the academy does not correlate well with the actual historical understanding of race and racism in both the US and abroad. (Similarly, as I have noted previously, "white ethnics" in the United States such as Jews, Italians, and Irish Americans, may have lacked "whiteness," but were most definitely considered to be racially white.)
One of my pet peeves concerns the naming of Supreme Court cases. Noel Canning v. NRLB, for example, cannot be abbreviated as Canning. There is a canning and bottling company in Washington named "Noel Canning."
Likewise, I've already seen some people refer to the Chevron case as just Loper. No, that does not work. The name of the company is "Loper Bright Enterprises." I would accept "Loper Bright" for short.
Still, I regret the case was not called Relentless. Relentless has 11 characters, while Loper Bright has 12 characters. Over the lifetime of this precedent, think of how many additional characters will be wasted!
The debate and its aftermath have crystallized some things in my mind, and I thought I'd note them. This subject is outside my academic area of expertise, so I appreciate that I might be mistaken in most or all of my observations. I also expect that others have put all this much better than I have. But I thought I'd pass along my thoughts, just as one American to others.
[* * *]
[1.] It seems to me that the current situation highlights the major problems with the Democratic Party. Many Democrats must have been aware of Biden's cognitive decline. They must have been aware that it's a danger to the country, and a danger to their own election prospects.
They had ample opportunities to press the President to step aside graciously in time for a substitute candidate who could exploit Trump's vast political weaknesses. To the extent they were worried that Harris would be the obvious substitute, and that she would make a losing candidate, it didn't take a masterful political chess player to anticipate in 2020 that this might be a problem. And even though it's obviously difficult to get a President to step down—indeed, though it's difficult to get most people to acknowledge their own cognitive decline—the job of a well-functioning party is to be able to accomplish such tasks.
[2.] The current situation highlights the major problems with the Republican Party. Even if you support Trump, and agree with his policies, answer honestly: Would you have, twenty years ago, wanted someone like him as your candidate? Set aside whether you think he's the lesser evil: Do you trust him to be calm and collected in a foreign policy crisis? Do you think he's an inspirational leader? Do you think he's a worthy heir to the presidents you admire (whether Washington, Lincoln, Reagan, Coolidge, or whoever else)?
The mark of an iconic Supreme Court decision is timelessness. With every read, the opinion teaches new insights and provides new lessons on our Constitution. Each semester when I prepare a case like Marbury or McCulloch, I learn something new.
Opinions from Chief Justice Roberts, however, are just the opposite. They are best read once. After the first read, you will come away entirely persuaded that Roberts's analysis was not only the best answer (to use the Loper Bright framing), but the only conceivable answer, as any contrary positions are unfounded. That's the first read.
But when you read a Roberts decision a a second, a third, and a fourth time, all of the fancy veneers and window dressing start to come off. You realize that John Roberts never stopped being an effective advocate, and he remains an effective advocate. The client is now whatever John Roberts himself thinks the Supreme Court should be. All the talk about "institutionalism" was always introspective--what does John Roberts himself think the Court should look like as an institution?
This is how I read Loper Bright. On the first read, I came away extremely impressed by how tight the analysis was. He did everything in about 30 pages--no easy feat! And he kept all members of the Court on board. Whatever urges Justice Barrett had to "Kisorize" Chevron seem to have been eliminated by the Chief's powerful opinion. (I need to give some more thought to why Barrett did not write separately, as the Loper Bright join seems to undermine several of her most recent opinions).
But as I stewedabout the Loper Bright majority opinion for a few days, the wheels have started to fall off.
Then again, Roberts's prose is still lovely. This sentence was one of my favorites: "For any landlubbers, 'F/V' is simply the designation for a fishing vessel."
Even when the Supreme Court changes course, the lower courts do not always fall in line. Old dogs do not like new tricks. The archetypal example is Heller. Even after the Supreme Court recognized an individual right to keep and bear arms, the lower courts actively resisted the case for more than a decade. Judges didn't like guns, and Heller didn't change much. Virtually every gun control measure survived scrutiny. Not much changed before and after Heller. Perhaps Bruen was a brief respite from that change, though Rahimi may usher in more of the same.
Will Loper Bright be treated in a similar fashion? For decades, lower-court judges have been content to defer to the executive branch on difficult legal questions. With Chevron gone, the courts will now have to find the "best" answer. (I kept thinking of Melania Trump's "Be Best" campaign). As the Chief Justice sees things, that task will involve independent legal judgment. But would we really know if a judge decides, as a matter of course, that the answer provided by the government is the "best" answer? After all, they have the requisite expertise. Call it Chevron in exile.
How much will change because of Loper Bright? I know there are many empirical studies about how often the government wins when Chevron is applied. Chief Justice Roberts scoffed at one such study by Kent Barnett, Christina Boyd, and Chris Walker:
Citing an empirical study, the dissent adds that Chevron "fosters agreement among judges." Post, at 28. It is hardly surprising that a study might find as much; Chevron's second step is supposed to be hospitable to agency interpretations. So when judges get there, they tend to agree that the agency wins. That proves nothing about the supposed ease or predictability of identifying ambiguity in the first place.
Perhaps in a few years, similar studies can be performed about the new regime. Has the executive branch's win-loss rate changed substantially? How much will Loper Bright really change things?
Two year ago, the Court decided Dobbs, the most important decision ever concerning stare decisis. How many times does Chief Justice Roberts cited Dobbs in Loper Bright? Zero. I suspect the Chief would prefer to pretend that Dobbs never happened. Indeed, Justice Kagan's dissent calls out Roberts for not citing his own Dobbs concurrence, where it is directly on point!
On the other side of the balance, the most important stare decisis factor—call it the "jolt to the legal system" issue—weighs heavily against overruling Chevron. Dobbs, 597 U. S., at 357 (ROBERTS, C. J., concurring in judgment). Congress and agencies alike have relied on Chevron—have assumed its existence—in much of their work for the last 40 years.
But the failure to cite Dobbs raises questions about what is the appropriate stare decisis framework for constitutional law decisions. Roberts never calls Chevron "egregiously wrong." He only goes so far as to say that Chevron was "fundamentally misguided" and that Chevron "gravely erred." Much more temperate language. Instead, he goes back to Knick and Janus:
Stare decisis is not an "inexorable command," Payne v. Tennessee, 501 U. S. 808, 828 (1991), and the stare decisis considerations most relevant here—"the quality of [the precedent's] reasoning, the workability of the rule it established, . . . and reliance on the decision," Knick v. Township of Scott, 588 U. S. 180, 203 (2019) (quoting Janus v. State, County, and Municipal Employees, 585 U. S. 878, 917 (2018))—all weigh in favor of letting Chevron go.
Chief Justice Roberts takes a page from the stare decisis analysis in Janus: a "crumbling precedent" that has been whittled away is on a shaky foundation:
This Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. See Cuozzo, 579 U. S., at 280 (most recent occasion). But Chevron remains on the books. So litigants must continue to wrestle with it, and lower courts—bound by even our crumbling precedents, see Agostini v. Felton, 521 U. S. 203, 238 (1997)—understandably continue to apply it.
The experience of the last 40 years has thus done little to rehabilitate Chevron.
Still, even though Dobbs was not cited, there are overlaps with that case.
Long ago, Chief Justice Roberts signaled that he doesn't very much care what academics think. What admin law professors think about Chevron is no different than what Bulgarian evidence professors think about Immanuel Kant. And Roberts was sure to tell us that in Loper Bright:
[Chevron's] flaws were nonetheless apparent from the start, prompting this Court to revise its foundations and continually limit its application. It has launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning.
Underneath the scorn, there is something to this statement. Over the past two days, admin law professors have had something of an existential moment: the world they have known for four decades was extinguished. The "cottage industry" they've propped up is no longer. The expertise they've developed, and imparted to generations of law students, is now obsolete. This is not a pleasant feeling. For example, if the Court were to come out and reject originalism--imagine after some Court packing--what would I do? I'd be adrift at sea.
On the relevance of law professors, I remain uncertain of how Chief Justice Roberts actually views Justice Barrett. She would seem to embody the sort of person Roberts would want nowhere near Article III--a lifetime academic with no real-world practice. Professor Scalia, at least, mixed practice with scholarship. Ditto for Bork. But what about Barrett? I'm sure Roberts can flash his charm with anyone, but what does he really think of her?
Update: In my post, I initially attributed the following quote to Chief Justice Roberts, but it was from Justice Gorsuch's dissent:
The dissent suggests that we need not take the APA's directions quite so seriously because the "finest administrative law scholars" from Harvard claim to see in them some wiggle room. Post, at 18 (opinion of KAGAN, J.). But nothing in the APA commands deference to the views of professors any more than it does the government. Nor is the dissent's list of Harvard's finest administrative law scholars entirely complete. See S. Breyer et al., Administrative Law and Regulatory Policy 288 (7thed. 2011) (acknowledging that Chevron deference "seems in conflict with . . . the apparently contrary language of 706"); Kagan 212 (likewise acknowledging Chevron deference rests upon a "fictionalized statement of legislative desire").
Notre Dame law Prof. Patrick Reidy argues that religious organizations are entitled to faith-based exemptions from zoning restrictions preventing them from building affordable housing on their land.
I recently wrote about the "YIGBY" ("Yes in God's Backyard") movement, which seeks to empower churches and other religious organizations build housing on their property that would otherwise be banned by zoning restrictions. Notre Dame law Prof. Patrick Reidy (who is also a Catholic priest) recently published an article in the Yale Law Journal arguing that YIGBYism is required by constitutional and statutory laws protecting religious liberty. Here 's the abstract:
In recent years, faith communities across the United States have begun to create affordable housing on church property, inspired by sincerely held religious beliefs. Some are building microhomes behind their houses of worship. Others are converting residences once used by religious ministers—from rectories to abbeys to convents—into units for seniors and low-income families. Still others are repurposing their vacant schools, church parking lots, and undeveloped parcels of land for denser multifamily structures, from townhouses to apartment buildings. Within housing-advocacy circles and among faith communities, these continent-wide efforts to create affordable housing on church property have manifested an affirmative declaration: "Yes, In God's Backyard."
Legal scholarship and popular media have extensively documented the affordable-housing crisis. In particular, scholars and commentators have underscored the pernicious role of exclusionary zoning in strangling housing production, ultimately sending regional housing prices skyward. When faith communities create affordable housing on church property, much of which is located in residentially zoned areas, they seek something other than fair market value. Some might call it "charity" (tzedakah) or "discipleship," a commitment to "welcome the stranger" or to "love your neighbor as yourself."
Faith communities seek theologically and morally sound uses for their underutilized property, but often struggle to overcome the regulatory and financial hurdles of adaptive reuse. Local governments can incentivize redevelopment that benefits the wider community, growing their affordable housing supply. But their mutual benefit does not exempt faith communities from challenge when they choose to redevelop church property for affordable housing. Neighbors may seek to thwart faith communities from introducing denser, multifamily residential structures in their backyard, relying on land-use restrictions designed to prohibit less costly forms of housing. When they succeed, these challenges from NIMBY ("Not In My Backyard") neighbors can limit both housing supply and the free exercise of religion.
This Feature thus proposes a novel response to exclusionary zoning: religious liberty. Where sincerely held religious beliefs inspire faith communities' efforts to create affordable housing, these communities can assert constitutional and statutory free exercise protections against land-use decisions that obstruct denser, less expensive, multifamily developments on church land. This Feature also explores municipal and state legislative reforms that lower the barrier where faith communities struggle to overcome the regulatory and financial hurdles of adaptive reuse and demonstrates the breadth of potential for affordable housing on church property, drawing on public sources and a novel data set to map parcels owned by Roman Catholic dioceses in Chicago, Illinois and Oakland, California across municipal zones.
Regardless of how faith communities came to own property within their limits, or why faith communities seek to repurpose property within their limits, most local governments need property within their limits to create affordable housing. And faith communities are willing partners in their endeavor.
I am not an expert on the relevant religious liberty issues. But his argument strikes me as compelling and persuasive.
It's worth noting, however, that its scope is limited. Reidy doesn't argue that religious organizations have a constitutional or statutory religious-liberty right to build whatever housing they want. Rather, they can only do so in cases where the relevant religious property owner considers it a religious duty (usually a duty to provide for the poor and needy). Thus, they could not use this argument to, e.g., build new luxury condos in order to bring in additional revenue for the church. And that's true even though economists and land-use scholars rightly point out that building new housing for the affluent also helps the poor, by reducing competition for the existing stock of housing and by promoting economic growth. Even where there is a proper religious-freedom rationale for exemption, it could potentially be overridden by a compelling state interest.
In my earlier post, I also noted some other limitations of YIGBYism. It's a valuable step in the right direction, but not a replacement for full-blown NIMBY reforms. Ideally, we should abolish exclusionary zoning across the board, and let both religious and secular property owners build whatever housing they want, subject only to narrowly defined health and safety restrictions. In a forthcoming Texas Law Review article, Josh Braver and I explain how that can be accomplished by stronger judicial enforcement of the Takings Clause of the Fifth Amendment.
But Reidy's religious-liberty defense of YIGBY is an important contribution to legal scholarship, and his argument might end up influencing court decisions on these issues, as well. It seems likely that at least some faith organizations will raise such arguments to challenge zoning restrictions in the short to medium term future.
If YIGBYism continues to spread and becomes an important focus of religious-liberty litigation, it might also help change the political valence of religious liberty exemptions to generally applicable laws. When the Religious Freedom Restoration Act and other related laws were enacted by federal and state governments in the 1990s, they enjoyed broad bipartisan support, probably even more on the left than on the right. Indeed, these laws were reactions against the Supreme Court's 1990 ruling in Employment Division v. Smith, which was authored by conservative Justice Antonin Scalia. Liberal lions Harry Blackmun, William Brennan, and Thurgood Marshall dissented.
The valence of the issue changed as the stereotypical religious-liberty claimant shifted from members of minority faiths seeking to use a banned drug for its religious ceremonies (like the Native American plaintiffs in Smith, who wanted to use pejote), to socially conservative Christians who oppose contraception or refuse to "bake the cake" or provide other services for same-sex wedding ceremonies.
But we now have a new generation of left-coded religious liberty exemption arguments. YIGBY is an example. So too are religious organizations who aid undocumented immigrants in defiance of federal and state laws, and people who argue they have a religious duty to provide abortion services (at least in some situations). As these types of claims become more common and more prominent, perhaps the ideological valence of religious-liberty exemption arguments will shift again.
I am one of the rare people who supports a wide range of both left and right-wing religious-liberty exemptions - despite being an atheist myself! But it's easy for me to say that, given that I'm also a libertarian who supports strong property rights, open borders migration rights, abortion rights, and also the right of business owners to refuse services for a wide range of reasons (include ones I disapprove of on moral grounds, as in the case of opponents of contraception and same-sex marriage). Indeed, I think all of these activities should be legal for people who do them for purely secular reasons, as well as religious ones. I might make a narrow exception for businesses who have a monopoly over vital services, as in the case of public utilities.
People with more conventional left or right-wing views face more difficult trade-offs here. But in considering them, they should be aware that religious-liberty claims cut both ways, and are not limited to one side of the political spectrum.
During Chief Justice Roberts's confirmation hearing, he refused to call himself an originalist. And during his nearly two decades on the Court, he has never raised the banner of originalism. But he sure does like to cite history. And it is generally history with a John-Roberts spin. Take Trump v. Vance for example. He relied extensively on Chief Justice Marshall's rulings in the Aaron Burr treason trials. But, as I noted at the time, "Roberts recounted a sanitized version of this seminal dispute." And that history served Roberts's goal of promoting the utmost power of the judiciary over the other branches.
We saw some similar revisionism in Loper Bright. First, Roberts cited Federalist No. 37. This paper is frequently associated with the concept of liquidation--that is, when the political branches engage in some sort of long-term settlement, the meaning of the Constitution itself can be settled, or liquidated. Indeed, this paper has been cited often of late. Justice Kavanaugh raised it during oral argument in Trump v. Anderson. Justice Kagan invoked it in her CFPB concurrence. Justice Barrett relied on that paper in her Vidal concurrence. Justice Kavanaugh leaned into it in his Rahimi concurrence and his Moore majority opinion.
In Loper Bright, however, Roberts seems to recast Federalist No. 37. For Roberts, the liquidation does not occur through settlement in the political branches. Rather, he sees the liquidation as being performed by the Courts themselves. Part II-A opens this way:
Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate "Cases" and "Controversies"—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear. Cognizant of the limits of human language and foresight, they anticipated that "[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation," would be "more or less obscure and equivocal, until their meaning" was settled "by a series of particular discussions and adjudications." The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison).
The subtext here is that the courts, and not the executive branch, would resolve ambiguities in the text of the laws. Who know that Madison came out against Chevron deference!?
Some federal criminal statutes require the mens rea of "corruptly." What does "corruptly" mean? In two cases this term, the Supreme Court has shied away from clearly defining this state of mind.
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
Much of Fischer turned on whether the word "otherwise" limited the offenses in (c)(2) to the types of offenses in (c)(1). The majority opinion, by Chief Justice Roberts, found that (c)(1) did limit (c)(2), and the latter was not a "catchall" provision of all other obstruction offenses. Justice Barrett's dissent rejected that reading. Justice Jackson was, perhaps, the surprise vote, as she joined the majority. However, Jackson wrote a separate concurrence that distanced herself from what might be called statutory original meaning, and instead tried to determine legislative intent.
Who got it right? To use Loper Bright as a model, what is the "best" reading of the statute? And we know that there certainly can only be one "best" reading of a statute. This case is tough. In the court below, I was persuaded by Judge Katsas's dissent, which Chief Justice Roberts repeatedly relied on. Still, I found parts of Justice Barrett's analysis compelling. For all of my criticism of Barrett's background as a law professor--and others are making similar points--she shines with a question of statutory interpretation. This is the sort of case that will appear in all statutory interpretation casebooks. Barrett's discussion of hypothetical statutes, and responses to the Chief's zoo and football analogies, were very sharp. On balance, I think this is a close call. I can hear Justice Gorsuch screaming "rule of lenity" in the back of my head, so I would probably rule for the defendant here. But my interest here focuses on the mens rea of the statute, which did not directly inform the Court's holding.
Section 1512(c) only applies to one who takes the prescribed acts "corruptly." What does corruptly mean? The Justices really do not want to tell us.
One of my favorite Scalia lines came in Clinton v. City of New York. In dissent, Justice Scalia would have upheld the constitutionality of the Line-Item Veto Act. He explains that the law in fact does not give the President the ability to veto individual lines of a budget--a power that some Governors have. That law, Scalia reasons, would violate the Presentment Clause. Instead, Scalia counters that the President's power is far more narrow, and comports with the Presentment Clause. Why then does Justice Stevens's majority opinion find the statute unconstitutional? Scalia blames the title of the law!
The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court.
Congress called it the "Line Item Veto Act," so the Court treated it as such. Congress faked out the Supreme Court! Classic Scalia line. I haven't taught the case in nearly a decade, but the zinger is still fresh in my mind. There is a reason why no one on the current Court comes close--though Roberts had some excellent prose in Loper Bright (more on that later).
In Fischer v. United States, Chief Justice Roberts used a similar faker-imagery, with just the opposite effect. He explained that the Court should not read the obstruction statute in such a manner that it would be an "elaborate pumpfake":
If, as the Government asserts, (c)(2) covers "all forms of obstructive conduct beyond Section 1512(c)(1)'s focus on evidence impairment," Brief for United States 13, there would have been scant reason for Congress to provide any specific examples at all. The sweep of subsection (c)(2) would consume (c)(1), leaving that narrower provision with no work to do. Indeed, subsection (c)(1) would be an elaborate pumpfake: a list of four types of highly particularized conduct, performed with respect to a record, document, or object and "with the intent to impair the object's integrity oravailability for use in an official proceeding," followed in the very next subsection—in the same sentence, no less—by a superseding prohibition on all means of obstructing, influencing, or impeding any official proceeding.
In other words, the government's reading renders Section 1512(c)(1) a pumpfake, and we should avoid pumpfakery. By contrast, the title of the Line Item Veto Act was a pumpfakery that faked out the Court. Go figure.
There are certain geopolitical events that are generation-defining. In my lifetime, I think they would be the fall of the Soviet Union, 9/11, the election of President Obama, the election of President Trump, the COVID-19 pandemic, and January 6. For earlier generations, they would have been Watergate, the moon landing, the Kennedy assassination, Pearl Harbor, and so on. These are moments in time that everyone remembers where they were when they happened, and after they occur, people say things will always be different.
The Supreme Court, as a continuous institution, invariably had to discuss these epochal events in one form or another. Two cases decided this term provide a glimpse at how the Court, and indeed how history, will view the COVID-19 pandemic and January 6. In both Murthy v. Missouri and Fischer v. United States, the Court nonchalantly refers to each incident.
During the height of the pandemic, Justice Breyer would trot out statistics about how many people might die without various safety protocols. But in Murthy, Justice Barrett's majority opinion barely mentions why the Biden Administration was leaning on social media companies to suppress certain messages. Even though Justice Barrett was not particularly sympathetic to the First Amendment claim, I get the distinct sense that she thought the government's actions were imprudent--especially with the benefit of hindsight. (We all remember how many people were wearing masks during her Rose Garden ceremony.)
And in Fischer, Chief Justice Roberts refers to those who breached the Capitol as a "crowd of supporters of then-President Donald Trump." Just a "crowd." Not a horde of insurrectionists. Justice Jackson uses slightly-more charged language--an "angry mob." Justice Barrett only calls them a "mob of rioters." Nothing even remotely close to the language of insurrection. (Sorry Will and Mike.)
If you had told me on January 7, 2021 that the Court would refer to the pandemic and the election certification with such bland language, I would have been skeptical. But here we are. Calamities grow calmer as they fade in the rear-view mirrors. And despite everything that has happened the last 3+ years, there is a very good chance that Donald Trump is re-elected. Does anyone even remember the rushed impeachment trial that occurred after he left office? Does anyone even care about Section 3 anymore? (Sorry Will and Mike.)
So maybe I was wrong. Perhaps the pandemic and January 6 were not generation-defining moments. These events were not the culmination of deeply-rooted and longstanding societal movements. Rather, they were blips that came out of nowhere, and which faded once they were over. People seemed to have moved on from them.
I realize this is an apostasy in law professor circles, but if Trump prevails in the election, President Biden (or whoever is in office at the time by virtue of the Presidential Success Act or the 25th Amendment) should issue a complete pardon. As a practical matter, it will not matter if the President issues such a pardon. On January 20, 2025, Trump would certainly fire the special counsel, direct the Attorney General to dismiss the prosecution, and maybe even pardon himself. A pardon from Biden, at least, would require Trump to accept it--and perhaps people can see that acceptance as some act of contrition. This was how Gerry Ford viewed his pardon of Nixon. Trump, however, may not reject the pardon, which would be a symbolic act unto itself. If Biden loses, his political career is over one way or the another, and he could shoulder the political burden.
The harder burden is whether the Governor of New York would issue a pardon. I am doubtful, but I think that sentence would have no bearing until Trump completes his second term.
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