What is this, under American law? (It has sometimes been referred to as "hotch-potch," but is not to be confused with "hodgepodge," the Wisconsin Court of Appeals tells us.)
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Serious threats, unserious responses
Episode 490 of the Cyberlaw Podcast
It was a week of serious cybersecurity incidents and unimpressive responses. As Melanie Teplinsky reminds us, the U.S. government has been agitated for months about China's apparent strategic decision to hold U.S. infrastructure hostage to cyberattack in a crisis. Now the government has struck back at Volt Typhoon, the Chinese threat actor pursuing that strategy. It claimed recently to have disrupted a Volt Typhoon botnet by taking over a batch of compromised routers. Andrew Adams explains how the court-ordered takeover was managed. It was a lot of work, and there is reason to doubt the effectiveness of the effort. The compromised routers can be re-compromised if they are turned off and on again. And the only ones that were uncompromised by the U.S. seizure are those inside the U.S., leaving open the possibility of DDOS attacks from abroad. Finally, DDOS attacks on our critical infrastructure shouldn't exactly be an existential threat. All things considered, I argue that there's a serious disconnect between the government's hair-on-fire talk about Volt Typhoon and its business-as-usual response.
Speaking of cyberattacks we could be overestimating, Taiwan just had an election that China cared a lot about. According to one detailed report, the Chinese threw a lot of cyber at Taiwanese voters -- and failed to make much of an impression. Richard Stiennon and I mix it up over whether the Chinese will do better trying to influence the 2024 outcome here.
While we're covering humdrum responses to cyberattacks, Melanie explains U.S. sanctions on Iranian military hackers for their hack of U.S. water systems that were more or less fish in a barrel.
For comic relief, Richard lays out the latest drama around the EU AI Act, now being amended in a series of backroom deals and off-the-books promises. I predict that the effort to pile pet-rock provisions on top of anti-American protectionism will end, not in a GDPR-style triumph for Europe but in a continent-wide AI desert. The EU market is now small enough for AI companies to bypass Europe entirely at the first sign of toxic regulation.
The U.S. is not the only player whose response to cyberintrusions is looking inadequate this week. Richard explains Microsoft's recent disclosure of a Midnight Blizzard attack on the company and a number of its customers. The company's obscure explanation of how its technology contributed to the attack and, worse, its effort to turn the disaster into an upsell opportunity earned Microsoft a patented Alex Stamos spanking.
Andrew explains the recent Justice Department charges against three people who facilitated the big $400m FTX hack that coincided with the exchange's collapse. Does that mean the hack wasn't an inside job? Not so fast, Andrew cautions. The government hasn't recovered the $400m, and it isn't claiming the three SIM-swappers it has charged are the only conspirators.
Melanie explains why we've seen a sudden surge in state privacy legislation. It turns out that industry has stopped fighting the idea of state privacy laws and is now selling a light-touch model law that omits things like a private right of action.
I give a lick and a promise to a "privacy" regulation now being pursued by CFPB for consumer financial information. I put privacy in quotes, because it's really an effort to create a whole new market for personal data, one that will assure better data management while undermining the competitive advantage of big data holdings. Bruce Schneier likes the idea. So do I, in principle, but it means a massive re-engineering of a big industry by technocrats who may not be quite as smart as they think they are. Bruce, if you want to come on the podcast to explain and debate the whole thing, send me email!
Spies are notoriously nasty, and often petty, but one of the nastiest and pettiest, Joshua Schulte, was sentenced to 40 years in prison last week. Andrew has the details.
There may be some good news on the ransomware front. More victims are refusing to pay. Melanie, Richard, and I explore ways to keep that trend going. I urge consideration of a tax on ransom payments.
I also flag a few new tech regulatory measures likely to come down the pike in the next few months. The FCC will likely use the TCPA to declare the use of AI-generated voices in robocalls illegal. And Amazon is likely to find itself held liable for the safety of products sold by third parties on the Amazon platform.
Finally, a few quick hits:
- Amazon has abandoned its iRobot acquisition, thanks to EU "competition" regulators, with the likely result that iRobot will be out of the competition for good
- David Kahn, who taught us all the romance of cryptology, has died at 93
- Air Force Lt. Gen. Timothy Haugh is taking over Cyber Command and NSA from Gen. Nakasone
- And for anyone suffering from Silicon Valley Envy, 23andMe offers a small corrective. The company is now a rare "reverse unicorn" – having fallen in value from $6 Billion to practically nothing
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets
The Use and Misuse of Section Three's "Legislative History": Part II
[Note: This is the sixth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first five essays can be found here, here, here, here, and here.]
Earlier today we began discussing the use and misuse of constitutional legislative history in interpreting Section Three of the Fourteenth Amendment. We first set out some important general principles about the proper role, and limitations, of the use of legislative history as potentially probative, second-best evidence of constitutional textual meaning. Next, we discussed at length some serious mischaracterizations of portions of the legislative history of Section Three set forth in recent draft scholarship and essays by Professor Kurt Lash. In particular, Lash misportrays statements by Representative Thaddeus Stevens and by Senator Lyman Trumbull as if they denied that Section Three of the Fourteenth Amendment is a self-executing constitutional command, when they did not. We also despaired that this mistaken account has been adopted by others. This highlights one major concern about the use of constitutional legislative history: its capacity, if not done faithfully and carefully, to mislead and distort. This should be a general caution about its use, and one that we think has proven unfortunately true in Lash's discussion of the self-execution issue.
Today we take up some problems with Lash's use of constitutional legislative history, even where accurately recounted, in the course of legal analysis of the Constitution's text. Here, our point is not that the excavation and presentation of the legislative history itself is flawed. Rather, the legal analysis and conclusions thought to flow from that legislative history are unsound. Lash in our view makes several types of missteps in this regard, and the errors tend to compound one another.
DOJ Files Petition for Writ of Mandamus to End Juliana Climate Litigation
The Justice Department is wasting no time seeking to put this zombie litigation out of its misery, and the plaintiffs are not happy about it.
The Department of Justice is wasting no time in seeking to put a swift end to the Juliana "Kids Climate Case."
Last month, DOJ filed a motion for a stay in the district court so that the federal government could file a writ of mandamus to dismiss the case before having to engage in meaningful trial preparations. The district court has not ruled on the motion (though the plaintiffs have filed a brief in opposition). Nonetheless, on Friday the Justice Department filed its petition for a writ of mandamus with the U.S. Court of Appeals for the Ninth Circuit.
I doubt Judge Aiken will grant the Justice Department's motion (especially now) but I suspect the Ninth Circuit may look more favorably on the Justice Department's petition--and if they do not, this case could easily wind up back on the Supreme Court's docket.
The Use and Misuse of Section Three's "Legislative History:" Part I
[Note: This is the fifth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first four essays can be found here, here, here, and here.]
The appropriate role of "legislative history" in constitutional interpretation is a subject of ongoing debate. For originalists – those committed to interpreting and applying the Constitution according to the best evidence of the objective, original public meaning of the words, phrases, and structural logic of the Constitution, taken in context, and accounting for specialized usages or terms of art – the question should be put this way: what light do the debates or drafting history of a provision, contained in (hopefully reliable) reports shed on the objective meaning of the language of the provision as embodied in the final, adopted constitutional text? (In the case of the original Constitution, some of the most crucial proceedings were "secret" – not publicly reported or available to the ratifying public at the time. This raises special problems which are not present in the case of constitutional amendments which were openly debated on the floor of Congress.)
Our shared view is that such constitutional legislative history is potentially probative, second-best evidence of original, objective textual meaning. But it is important to always keep in mind that the search is for the objective meaning of the text – the actual language adopted as law – not for the "intent" or "purpose" or "understanding" of some particular person or any collectivity of persons. It is what the people involved wrote down in words, and voted to adopt, that counts – not what they might or might not have "had in mind." So while evidence of the intention or purpose of individuals involved in the drafting process might be relevant to ascertaining the meaning of the text, discovering their intent or purpose is not the ultimate goal. Legislative history is a potential means to an end: the ultimate goal of getting the objective, original meaning of the words of the text right.
All of this results in several implications or admonitions. First, constitutional legislative history, or imputed "purposes" ostensibly found there, can never properly displace the actual textual meaning. As we note in The Sweep and Force of Section Three (at 7-11), the language ultimately adopted sometimes overshoots or undershoots (whether deliberately or not) the drafters' supposed intentions or purposes. Second, one must be precise and careful about drawing textual inferences from legislative history – careful not to overweight individual pieces of evidence or idiosyncratic views, and precise in specifying what those views show about the actual text at issue. Third, ambiguity in the legislative history is not ambiguity in the text. The drafters of a position may well have different views, and enact a text to reflect the victory of one side or a compromise between them, or simply because something has to get done. Those involved in the drafting may well deliberately spin or unintentionally misunderstand the details of those choices. But again, it is the single, unified, text and its objective, original meaning that becomes law in our system, not the political machinations that produced it.
In The Sweep and Force of Section Three, we hew closely to these limitations on the use of constitutional legislative history. On the occasions where we note relevant evidence from drafting history or specific debates, we carefully qualify our observations about the relevant legislative history. Legislative history does not establish textual meaning. It serves as potentially probative, second-best evidence that can assist in understanding the meaning of the language contained in the text. It must be handled with care.
* * *
With that preface, we turn to the constitutional legislative history of Section Three itself. Over the past months since our article was posted, the ensuing debate has included some instructive – but also some rather dubious – uses of constitutional legislative history. In particular, we must take issue with some serious flaws contained in Professor Kurt Lash's recent writings on this topic, which he has presented in a draft law-review article, titled "The Meaning and Ambiguity of Section Three of the Fourteenth Amendment," and, in a more telescoped form, as an online essay at the Law and Liberty website, titled "The Fourteenth Amendment's Ambiguous Section Three." Kurt is a friend of ours and we do not wish to sound overly harsh. But these writings contain serious problems both of history – concerning what the "legislative history" does and does not say – and of law – concerning the way constitutional legislative history is used in legal analysis of the constitutional text.
We will start by focusing on the former problem here, and take up the latter problem more fully in a subsequent essay. There is a serious problem with Lash's presentation of the legislative history of Section Three itself. With respect, some of what Lash says the legislative history shows is simply wrong. At best, Lash's presentation is misleading; at worst, it is a serious misrepresentation of what was said.
Today in Supreme Court History
Today in Supreme Court History: February 6, 1858
2/6/1858: Justice Mahlon Pitney's birthday.
"In Memoriam: Prof. Dan Burk"
I was very sad to hear yesterday of the untimely death of Prof. Dan Burk (UC Irvine), a leading scholar of intellectual property and of Internet law. I often ran into him and his work, and always much appreciated his contributions. Eric Goldman (Santa Clara) has an excellent remembrance, which I highly recommend.
Monday Open Thread
What's on your mind?
The Objection: "But He Hasn't Been Convicted Of Anything"
[Note: This is the fourth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first three essays can be found here, here, and here.]
Some critics have made the argument that Section Three cannot or should not be used to constitutionally disqualify a person from office for having engaged in insurrection or rebellion without that person first having been charged and convicted of the statutory federal crime of insurrection, under 18 U.S.C. §2383.
Professor Michael McConnell appears to have been the first to make this argument, in a post on this blog shortly after we first posted our draft article on SSRN in August, 2023. As McConnell put it:
Congress has enacted a statute, 18 U.S.C. §2383, which covers participation in rebellion or insurrection, and which provides that those found guilty "shall be incapable of holding any office under the United States." This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step. It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute.
Others have echoed this suggestion. The Wall Street Journal in September 2023 editorialized against applying Section Three to disqualify Trump, saying that "[i]t is surely relevant that Mr. Trump hasn't been charged with insurrection under 18 U.S.C. Section 2383." Trump's brief on the merits in the Supreme Court in Trump v. Anderson asserts (pp. 38-40) that Section Three can only be enforced following a criminal conviction under 18 U.S.C. §2383. At least two amicus briefs supporting Trump make the same claim.
With all due respect, the argument is legally meritless, top to bottom. It is wrong as a matter of the text, history, and structure of Section Three. But it also is wrong on the details of §2383 itself.
"Times Less Than"
A Facebook comment reminded me again of this debate — some people argue that "A times less than B" is "mathematically incorrect," "simply wrong," and so on. The theory is that "times" refers to multiplication, so "5 times less than B" to mean "B/5" is mistaken, though "5 times more than" to mean "5xB" (or possibly "6xB") would be fine.
But somehow this logic was lost on, say, Isaac Newton ("If the Diameters of the Circles … be made three times less than before, the Mixture will be also three times less; if ten times less, the Mixture will be ten times less"), Sir William Herschel ("remember that the sun on Saturn appears to be a hundred time less than on the earth"), Erasmus Darwin, Robert Boyle, John Locke, and more. Nor is this some archaic usage; it remains routine today.
What's going on here? My sense is that many people's objections rest on an assumption that English is, or ought to be, like math. It's true that if you view "times" as "x" and "less" as "-" then "A times less than B" is either literally meaningless, or corresponds to "B-AxB." But of course in English, including the English used by scientists of the highest caliber, "times" doesn't always mean "x" and "less" doesn't always mean "-." We see that from the very examples I just gave, as well as from observed common usage.
Today in Supreme Court History: February 5, 1793
2/5/1793: Chisholm v. Georgia argued.
Congratulations to the Law Blog Mirror of Justice, 20 Years Old This Weekend
The blog primarily deals with Catholic legal thought; I've been following it since the beginning, and know and much respect many of its contributors. If you're at all interest in the subject, you should check it out.
In Trump v. Anderson, the Respondents' Theory Would Render Unconstitutional Every Speaker and President Pro Tempore Since 1789, as Well as President Grant's VP and Presidential Candidate George McGovern
Justice Scalia erred because there are no “Officers of the United States” appointed outside Article II, Section II.
[This post is co-authored with Professor Seth Barrett Tillman]
Since the outset of the Section 3 litigation, those seeking to disqualify Trump from the ballot have made two primary arguments concerning the Appointments Clause. First, they argued that whatever the phrase "Officers of the United States" meant in the Appointments Clause, it had a different meaning in Section 3. Second, they acknowledged that the President obviously does not appoint himself, but countered that the Appointments Clause does not define who are the "Officers of the United States." In the lower courts, the Respondents never attempted to discuss whether there are some "Officers of the United States" who are not referenced in the Appointments Clause. Indeed, we saw no need to address this point in our amicus brief, filed on January 9, 2024.
On appeal to the Supreme Court, the Colorado voters in Trump v. Anderson have pivoted to a new strategy. They now argue that the President, Vice President, Speaker of the House, and Senate President Pro Tempore are all appointed "Officers of the United States." Resp. Br. at 40 ("The Constitution 'otherwise provide[s]' for the 'appointment' of the President and Vice President by the electoral college, and the Speaker of the House and President pro tempore of the Senate by Congress.").
We can take a good guess why they have suddenly taken this position. No, it is not because a journalist at Lawfare and two attorneys who have experience in corpus linguistics suddenly discovered, after more than two centuries, the unifying theory of the Appointments Clause. Rather, it is the Scalia letter! Yes, the letter that Justice Scalia wrote to Tillman in 2014. We published that letter in an article nearly a year ago. We didn't have to publish the letter. It was a private correspondence. No one would have ever known if we didn't publish it. But we published it quite intentionally, in part, to demonstrate that even a legal giant, like Justice Scalia, can make a mistake. And we published it because, as scholars, we have a duty to pursue the truth.
Would you have published a private correspondence from Justice Scalia that was in tension with your own views?
After Noel Canning was decided, Justice Scalia responded to a letter by Tillman, and stated that the President, Vice President, Speaker of the House, and Senate President Pro Tempore are "officers of the United States" whose appointments are not provided for in the Appointments Clause. And wouldn't you know it? The Respondents have adopted exactly that position. Blackman told CNN that arguments based on the Scalia letter "have substantial problems." In this post, we will illustrate some of those problems. (We flagged these problems to the Court in paragraph 13 of our now-denied motion for leave to participate in oral arguments.)
One such problem is that the Respondents' theory would render unconstitutional every Speaker and President Pro Tempore since 1789, as well President Grant's Vice President and Presidential Candidate George McGovern. For that reason, and others, we maintain that Justice Scalia erred, because there are no "Officers of the United States" appointed outside Article II, Section 2. Instead, Article II, Section 2 is the exclusive means by which "officer of the United States" positions are filled. And this understanding of the Constitution's text is the only view consistent with Supreme Court precedent. See, e.g., Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497–98 (2010) (explaining that "[t]he people do not vote for the 'Officers of the United States.'" (first quoting U.S. Const. art. II, § 2, cl. 2, and then citing Federalist No. 72 (Alexander Hamilton))). Respondents "offer no account [or theory] of how their argument fits within the landscape of [the Court's] case law." Haaland v. Brackeen, 599 U.S. 255, 279 (2023).
The Objection That Enforcing Section Three Would Be Too "Dangerous"
[Note: This is the third in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first two essays can be found here and here.]
Of all the objections that have been offered to our interpretation of Section Three, one stands out as far and away the most craven and insidious. It is the argument that, regardless of what the Constitution says and how it is correctly understood, we should not enforce Section Three's exclusion of insurrectionists from future office because doing so might provoke substantial political resistance and even violence by their supporters. To comply with the Constitution in this respect, therefore (it is said), is simply too dangerous. In short, it might tend to produce further, greater acts of insurrectionary violence or rebellion directed against our constitutional order. We should decline to enforce the Constitution's exclusion of insurrectionists from office because that might only make matters worse. Or as Professor Daniel Epps put it in jest: "The Supreme Court shouldn't rule that Trump is ineligible for the presidency for engaging in insurrection, because if they do Trump will definitely stage an insurrection."
Muller on Yoo and Delahunty on the Twelfth Amendment and the Counting of Electoral Votes
A critique of John Yoo and Robert Delahunty's suggestion that the Vice President has a role in counting electoral votes.
Could Kamala Harris resolve a dispute over competing electoral vote slates in the 2024 presidential election, perhaps choosing the slate supporting her own re-election as vice president? In a recent law review article in the Case Western Reserve Law Review, Professor John Yoo and Robert Delahunty argued that the vice president has a small, but significant, role in resolving such disputes (though not as great a role as Donald Trump or John Eastman claimed). Their article, while aligning with claims that had been made by other academics in the past, was quite controversial.
Notre Dame law professor Derek Muller responds to Yoo and Delahunty in the latest issue of the Case Western Reserve Law Review, explaining why their theory is wrong. Even if there had been competing slates of electors from individual states, the Vice President lacks the authority to resolve such disputes.
Here is how the article begins:
On January 6, 2021, the President of the Senate—Vice President Mike Pence—dutifully opened the electoral votes from the 2020 presidential election and read aloud the totals. He acted consistent with the direction of the Electoral Count Act of 1887, consistent with the congressional joint resolution approved three days earlier, and consistent with more than two centuries of congressional practice. Not everyone was convinced that the Constitution and laws of the United States obligated Pence to behave in this way—most notably, President Donald Trump, who had just lost the election and sought a way to turn defeat into victory.
On this, Professors Robert Delahunty and John Yoo agree with Pence. In their recent article here in the Case Western Reserve Law Review on the topic of the role of the Vice President in counting electoral votes, they conclude, "Pence was obliged to count the votes as submitted by the states." But they reach a different conclusion on who holds the legal power to count electoral votes and resolve disputes. They conclude, "Our theory leads to the conclusion that the best reading of the constitutional text, structure, and history assigns that role to the Vice President, not Congress or the judiciary." In contrast, "Congress has no substantive role in the process."
Congress has continually rejected this view for more than 200 years, and perhaps it is a reason Pence saw no such room for debate. Professors Delahunty and Yoo helpfully examine the history surrounding disputes over counting electoral votes and in places make appropriate conditions on the modesty of their claims. But this Essay explains why Congress, and not the President of the Senate, holds the power to count electoral votes and to resolve disputes over them.
Some details help frame the heart of the controversy. There are potentially three different responsibilities to consider when the House and the Senate join together before the President of the Senate for the counting of electoral votes. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?
This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the distraction of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.
Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.
The full article is here.
Today in Supreme Court History: February 4, 1824
2/4/1824: Gibbons v. Ogden argued.
"God Has Left"
This is by Diana Arbenina of the Night Snipers, a prominent Russian rock group; Arbenina, unlike many critics of the war, has stayed in Russia, where her career has unsurprisingly suffered because of her position. I thought I'd pass along my poor attempt at translating the song; naturally, its impact is much greater in its original rhymed and metered form.
Each day there are fewer words,
And more ellipses.
Everything serious is now
Not important and not urgent.
There is no need to go faster,
Where the road is there's now a trench;
The first one became bait
And the second fell as a target.
The Objection that Enforcing Section Three is "Undemocratic"
[Note: This is the second in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first, introductory essay, can be found here.]
What about democracy?! We should let the people vote for whomever they want!
Perhaps the most common objection to enforcing Section Three is that doing so would be "undemocratic" in some sense. Taking Section Three seriously, and applying its constitutional disqualification rigorously, it is said, would interfere with the right to vote. It would impair the right of the people to select their own leaders. It would be contrary to democracy. It would be downright unAmerican!
So the charge goes. In reality, this is more a political objection than a truly legal one (though it is sometimes cast in legal terms). It is ultimately an objection to Section Three itself – an objection to what the Constitution says and does. It is at bottom an anti-constitutional argument – an argument for not complying with what the Constitution requires. In the end, the argument, notwithstanding whatever rhetorical appeal it might have, is wholly unpersuasive as a legal matter.
This objection comes in many rhetorical forms:
These are different ways of saying much the same thing. However cast, the substance of the objection is always pretty much the same.
The argument has a certain intuitive appeal: everybody supports "democracy" as an abstract proposition. But all versions of the argument share a common analytic flaw: they beg the relevant legal question entirely.
