An excerpt from an opinion piece that she wrote at the Washington Post Dec. 10, but that I had missed:
I was one of three co-chairs of Harvard's Presidential Task Force on Inclusion and Belonging, which in 2018 delivered a strategic framework for the campus…. Across the country, DEI bureaucracies have been responsible for numerous assaults on common sense, but the values of lowercase-i inclusion and lowercase-d diversity remain foundational to healthy democracy….
We wrote [in our report]: "Our shared pursuits … depend on the open and direct expression of ideas and on criteria of evaluation established by the judgments of experts. Excellence therefore also requires academic freedom. Inclusion and academic freedom — these principles are linked in each being necessary to the pursuit of truth."
We grounded the work in a broad commitment to pluralism. We wanted a diversity of views on campus, and we recognized that the sources of diversity are myriad. We cared as much about viewpoint and religion as any other source of diversity…. While we acknowledged historical patterns in our report, we did not dwell on the theme of historical injustices. We did not see the challenge in front of us as "white supremacy"; we never used a vocabulary of that kind. Our faces were set to the future. We saw in the rich diversity of our campus an opportunity — a chance to achieve a higher level of excellence powered by intense engagements across a vast range of viewpoints….
[Prof. Kurt Lash (Richmond), who is a leading legal historian of the Fourteenth Amendment, was kind enough to pass along this response to an amicus brief by Profs. Akhil Reed Amar (Yale) and Vikram David Amar (Illinois) in Trump v. Anderson, and I'm delighted to have it published here. As readers of the blog know, several of our bloggers have expressed their own views on the case, which are quite different from each other, and I'm very glad that the blog provides a forum for those competing views. None of them, of course, is the view of the blog as a whole, or of anyone other than the individual author. I would of course be delighted to publish any response to this item as well. -EV]
Professors Akhil Amar and Vik Amar have submitted an interesting amicus brief in Trump v. Anderson, the case involving Donald Trump's potential disqualification under Section Three of the Fourteenth Amendment. The brief claims that Section Three represents the framers' response to two insurrections, one tall and one small, and that the small one is analogous to the events of January 6, 2021.
The smaller "First Insurrection" (the brief capitalizes the term) supposedly involved an oath breaking cabinet member named John B. Floyd. Floyd, they argue, was a co-conspirator in the First Insurrection(ist) attempt in February 1861 to disrupt the counting of electoral votes and prevent the inauguration of Abraham Lincoln. Since the framers of Section Three intended this small failed First Insurrection to fall within the meaning of the text, they must also have intended to include the similarly small but briefly successful "insurrection" of January 6, 2021.
The brief is fun and imaginative, as is everything the Amars write. Unfortunately, in this case the historical evidence does not support the argument. Their brief is an unsuccessful attempt to place someone who wasn't there at an insurrection that did not occur. Even more damningly for their side, the brief calls attention to an 1862 statute that actually blows a hole through the already weak originalist case for disqualification.
First: The man who wasn't there. John B. Floyd served as President Buchanan's Secretary of War. Floyd objected to Buchanan's reinforcement of Fort Sumter and he resigned his position on December 29, 1860. This was more than a month before Congress met in joint session to count the electoral votes on February 13, 1860, and more than two months before Lincoln's inauguration in early March. When Virginia voted to secede in April 1861, Floyd fled a pending indictment for corruption and fraud[1] and joined the Confederacy, eventually rising to the position of general in the Confederate Army.[2]
The University of California system is debating whether to allow academic departments to issue political statements. Barnard College is currently in the midst of a campus controversy over college officials removing a political statement from a department's website.
Should departments be issuing such statements, and who should be understood to control the content of a departmental website or social media account? In an essay in the Chronicle of Higher Education, I argue that such political statements have no place in academia. They invite a further erosion of public support for higher education, and they threaten the foundations of individual academic freedom.
Here's a taste:
Another set of concerns involves the direct pressure put on individual scholars by the proliferation of institutional political statements. Individual members of the faculty are free to engage in individual political expression or to associate with others to express themselves collectively, and universities should be diligent in protecting the freedom of individual professors to do so. But individual members of the faculty also have the freedom to remain silent on matters of controversy and to choose their own time and manner of expressing their political views. They should not, as a condition of employment at a university, be dragooned into the political activities of others. Departmental statements make that impossible. Dissenting individuals are forced either to hold their tongue and allow statements to be issued in their name or to wade into a political controversy when they would prefer not to do so. Faculty members can always speak in their own name. That is an exercise of free expression. To attempt to speak in the name of others is rather an infringement on free expression.
For departments qua departments to issue political statements is to assert that those sentiments are not just personal, but professional. As such, they may also become professionally relevant to evaluation of current and future members of the faculty. It is an important protection of the academic freedom of individuals that institutions not take the personal political views and activities of professors into account when making decisions regarding hiring and promotion. It is possible to construct a firewall protecting professors from being punished for their political opinions by distinguishing such personal activities from professional activities. If, however, a department as such has specific political views, then the political views of prospective members of the faculty are suddenly professionally relevant and cannot be regarded as off-limits. Junior faculty would justly worry that their professional future will be damaged if they do not go along with the political activities of their senior colleagues. Dissenting members of the faculty will justly believe that they are made outsiders to their own department as a consequence of their political beliefs.
Their amicus brief endorses the view that members of state legislatures are officers. They took the exact opposite position in 1995 and in subsequent publications.
[This post is co-authored with Professor Seth Barrett Tillman]
On January 18, Professor Akhil Reed Amar and Professor Vikram Amar filed an amicus brief in Trump v. Anderson, the Section 3 case. The brief was styled as in support of neither party, but the clear import of the brief is that the Supreme Court should disqualify Trump from the ballot. Professor Jason Mazzone describes the brief as "eye-popping and game-changing." We think that characterization is apt, but not for the reasons Mazzone described. As we read the brief, the Amars have retreated from the central position they put forward in an influential 1995 Stanford Law Review article. As their brief and other current commentary does not note their changed intellectual position, we wonder if they realize what they have done.
Los Angeles County will pay [Eugene Yu,] the owner of Michigan-based election management software company[, Konnech,] $5 million to settle a lawsuit that alleged the LA County District Attorney's Office violated his rights when he was arrested and charged in 2022 with a criminal case that was dropped 37 days later.
"Plaintiffs alleged Mr. Yu's arrest and the seizure of Konnech's property was without probable cause and a violation of Mr. Yu's civil rights causing damage to Konnech's business and Mr. Yu's reputation," county lawyers wrote to the Board of Supervisors in a letter urging approval of the settlement….
LA District Attorney George Gascón announced at a news conference [in Oct. 2022] that Yu and his firm had criminally violated the terms of the company's $2.6 million contract with LA County, under which the company provided election logistics software to voting officials.
Gascón accused Yu and the company of conspiracy and embezzlement, by allegedly storing some data about poll workers on servers in China, rather than on servers in the U.S., but specified that there was no evidence voting or voter data had been stored offshore….
For Konnech and Yu's complaint, see here. My first reaction, I regret to say, was that the prosecutors were likely to have solid evidence behind their charges, in part because the prosecution was contrary to what one might have politically expected from Gascón, and in part because in my experience prosecutors usually (though not always) do have solid evidence. But in this instance it appears that the prosecutors erred; I'd love to know more about how all this came about.
From the Complaint filed Thursday in Avodah Farms v. O'Hara-Rusckowski (D. Colo.):
Avodah was formed in February 2020. It works to restore and reintegrate women survivors of sex trafficking ("survivors") through comprehensive, Christ-centered care provided by Catholic religious sisters and faith-filled community. Avodah conducts its non-profit missionary work across the United States….
During the relevant times giving rise to this action, Rusckowski was a member of the Board of Councillors for the American Association of Malta, a Delegate and Special Advisor on Human Trafficking to the Ambassador for the Order of Malta at the United Nations….
In 2021, Rusckowski connected Avodah and Fitzpatrick to the Oblates, a religious order seeking to sell to Avodah certain real property located … (the "Lowell Home"). The Lowell Home was intended to be used as safe housing for survivors, their children, and religious Sisters who had contracted with Avodah to care for the survivors….
Despite having donated significant funds to Avodah for the specific purpose of supporting Avodah's mission, Defendants possessed no legal right or property interests which would permit them to exert control or decision-making authority over the development of the Lowell Home. Despite this, Defendants through their actions, words, and conduct undertook substantial efforts to illegally force the Plaintiffs to abandon the project so Defendants could implement their new vision…..
Rusckowski and the Malta Defendants initiated a smear campaign against Plaintiffs.
A Berklee College of Music student, who is a citizen of the People's Republic of China (PRC), was convicted by a federal jury in Boston today of stalking and threatening an individual who posted fliers in support of democracy in China around the Berklee campus area.
Xiaolei Wu, 26, was convicted following a four-day jury trial of one count of cyberstalking and one count of interstate transmissions of threatening communication. U.S. District Court Judge Denise J. Casper scheduled sentencing for April 24, 2024. Wu was arrested and charged by criminal complaint in December 2022 and subsequently indicted by a federal grand jury in January 2023….
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Last year, at the request of large dairy producers, Oregon agriculture officials decided to force small dairies to comply with the same regulations that apply to big dairies. Which means, for instance, installing ruinously expensive equipment to manage health concerns that simply don't exist when you have three cows in a pasture versus hundreds in confined spaces. Click here to learn more.
What made the congressional hearing so sad was not merely the accusatory quality of the committee's questions, or even the evasive quality of the presidents' answers. It was that the presidents were being asked to interpret their own rules on campus speech — and couldn't.
They're not alone. Existing campus speech rules have led to all sorts of horror stories. Many are true. Because the regulations tend to be standardless — often, deciding what's hateful based on the response of the listener, a so-called "heckler's veto" — they give no fair warning of what's forbidden, leading to such absurdities as stopping a student from passing out copies of the Constitution on Constitution Day; or investigating a professor for the sin of stopping to watch a "Back the Blue" rally; or rebuking an untenured lecturer who in a discussion about race showed a documentary that included graphic images of lynching, and read aloud from the Rev. Dr. Martin Luther King Jr.'s "Letter from Birmingham Jail." Evidently the film, like the letter, included what we're now supposed to call the N-word. (Full disclosure: I've used the word often in my books — fiction and nonfiction alike — and, seemingly only yesterday, I used it in the pages of The Times.)
But even were the rules crystal clear, they'd have both students and faculty looking over their shoulders, wondering which of their ideas might bring forth not disagreement — the mother's milk of academic life — but condemnation from their fellows and, most dreaded of all, investigation. The inculcation of fear as part of daily work on campus is very McCarthyist; more McCarthyist, even, than hauling college presidents before Congress to try to force them to place even more speech off limits. Because having to look over your shoulder is something you contend with every day….
“The safest course of action in terms of a possible violation of the NCO would be to refrain from writing or to be interviewed for articles that mention the name of the student with whom you have an NCO (or to retract them if that’s possible).”
From today's letter by FIRE and the Anti-Defamation League, send to Princeton University:
Princeton is stifling … discussions [about the Israeli-Palestinian conflict] and newsgathering by its student press, by permitting students who dislike certain speech to be granted no-communication or no-contact orders against other students. While no-contact protocols are important tools to keep students safe from properly defined discriminatory harassment, and threatening, intimidating, or assaultive conduct, Princeton appears to be granting these orders for any student who requests one, so long as minimal procedural prerequisites are satisfied.
These orders are being issued by administrators with disciplinary authority, under threat of punishment, without a modicum of due process, and—most unconscionably—where the student-speaker is not even alleged to have violated any university policy. This practice is deeply chilling, in blatant violation of Princeton's laudable free expression policies, and must end immediately….
Princeton … [has issued a] no-contact order against a [Princeton] Tory journalist who reported on a student demonstration against Israel. A Tory journalist covered a November 9 protest held by Students for Justice in Palestine. While she was recording footage of the protestors' chants and signs, a graduate student attempted to block her camera. The graduate student followed the journalist, and remained in close physical proximity to her, despite the journalist voicing her discomfort.
When the journalist reported this to an on-duty Public Safety officer, the officer informed the journalist that she was "inciting something." Following the officer's inaction, the graduate student continued to attempt to physically obstruct the journalist from filming, eventually pushing her and stepping on her foot. {The recitation here reflects our understanding of the pertinent facts. We appreciate that you may have additional information to offer and invite you to share it with us.}
After the protest, the graduate student who pushed the journalist obtained a no-contact order against her. The journalist met with her Assistant Dean for Student Life to discuss the order and asked the dean whether she could publish articles written before the issuance of the no- contact order that mention the graduate student's name. The dean later informed the journalist via email {on file with author} that the university "cannot determine if they would be a violation of the NCO—it is possible that some statements may be interpreted by the other student as an indirect or direct attempt to communicate. The safest course of action in terms of a possible violation of the NCO would be to refrain from writing or to be interviewed for articles that mention the name of the student with whom you have an NCO (or to retract them if that's possible)." …
State and federal agencies routinely issue "guidance" in the form of public statements and private letters that are actually veiled commands and threats of adverse consequences for failure to obey. Interpretive regulations, which supposedly only express an agency's opinion and are non-binding, may serve the same function. Such communications may be beyond the agency's legal authority or may be a way to circumvent required notice and comment procedures for formal legislative regulations. This type of coercion may violate rights under the Second Amendment and other constitutional rights, not to mention required administrative procedures.
This post assesses two cases pending in the Supreme Court in which agency guidance is being used to threaten Second Amendment rights. National Rifle Ass'n v. Vullo concerns how New York officials threatened commercial entities not to do business with the NRA in an effort to suppress Second Amendment advocacy. Garland v. Cargill involves the extent to which the executive branch may expand gun crimes beyond what Congress has enacted through supposedly non-mandatory interpretive regulations.
In addition, because agencies often insist that courts defer to their legal and factual conclusions, it is relevant to discuss the pending Loper and Relentless cases in which the Supreme Court will decide whether to tank the Chevron deference rule.
I recently completed a swing through Boston, with three events on Section 3.
First, I debated Jed Shugerman at Boston University, moderated by Gary Lawson.
Second, I had a panel with Jeff Pokorak at Suffolk Law School. The event was styled as a Supreme Court roundup, but most of the discussion gravitated to Trump v. Anderson:
Third, I gave a lecture on Section 3, with extended Q&A, at Boston College:
In response to a recent Supreme Court ruling allowing federal law enforcement officials to cut through razor wire Texas placed at parts of its southern border, Texas Gov. Greg Abbott issued a statement doubling down on claims that undocumented migration qualifies as an "invasion" empowering Texas to ignore federal laws to the contrary:
Under President Biden's lawless border policies, more than 6 million illegal immigrants have crossed our southern border in just 3 years. That is more than the population of 33 different States in this country. This illegal refusal to protect the States has inflicted unprecedented harm on the People all across the United States.
James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why the Framers included both Article IV, § 4, which promises that the federal government "shall protect each [State] against invasion," and Article I, § 10, Clause 3, which acknowledges "the States' sovereign interest in protecting their borders." Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting).
The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas's constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary.
The argument that immigration is "invasion" is badly wrong and has dangerous implications that go far beyond the specific details of the razor wire case.
Abbott and his lawyers would do well to stop citing James Madison to buttress their invasion argument. As I explained in a previous piece on this issue, Madison specifically rejected the idea that immigration qualifies as invasion:
Those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question: the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause. There, Madison explicitly rejected the idea that immigration qualifies as invasion, emphasizing that "Invasion is an operation of war."
Claims that other statements by Madison support the theory do not withstand scrutiny for reasons I summarized here.
If courts were to endorse the idea that illegal immigration qualifies as "invasion," it would have absurd and dangerous implications. Here's my brief summary of a key reason why:
[I]f illegal immigration or drug smuggling really do qualify as an "invasion," then [Article I, § 10, Clause 3 of] the Constitution [the provision cited by Abbott] authorizes states to "engage in War" as a response. In other words, Texas would be authorized to take such actions as sending its National Guard to invade Mexico, in order to attack drug cartels or forestall undocumented migration…. This absurd—and dangerous—implication of Texas's argument is an additional reason to reject it.
And Texas could then "engage in war" without any congressional authorization, and - if Abbott is right - in defiance of federal statutes to the contrary.
In the water buoy case, federal district Judge David Alan Ezra (a Republican Reagan appointee) described Texas's position as a "breathtaking" assertion of unilateral state power. If anything, he understates the point.
I would add that Texas and other states could use that claimed authority anytime they want. Since the US began to enact severe restrictions on migration across the southern border, there has never been a time when there wasn't large-scale undocumented migration across it. No president - Donald Trump included - has ever even come close to stopping it. Large-scale illegal migration is a natural consequence of the combination of severe restrictions on legal migration, job opportunities in the US, and terrible conditions in the countries most migrants are fleeing. It can potentially be reduced by making legal migration easier. But Abbott and most other Republicans are opposed to that.
Much the same point applies to cross-border drug smuggling, which is a natural consequence of the War on Drugs. Since that ill-advised metaphorical war began, there has never not been extensive cross-border trafficking in illegal drugs - including under Trump.
If illegal migration and drug smuggling count as "invasion," we are always in a state of "invasion" and affected states can "engage in war" anytime they want. Even if there is relatively more illegal migration now than a few years ago, there have long been hundreds of thousands of cases per year. If illegal migration qualifies as an "invasion" at all, it does so all the time, not just when a Democratic president is in office or when there is a spike compared to previous years.
The writ of habeas corpus protects people from being detained by the government without trial. If federal or state officials detain you, the writ gives you the right to challenge the legal basis for that detention in court. But the Suspension Clause of the Constitution (Article I, Section 9, Clause 2) states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (emphasis added).
If illegal migration and drug smuggling qualify as "invasion" for purposes of triggering state and federal authority to resist invasion under the invasion clauses, they surely also qualify as such under the Suspension Clause. And there is a significant amount of illegal migration and smuggling of contraband goods going on at virtually all times in modern history. Thus, presto! The federal government can suspend the writ of habeas corpus virtually any time it wants!
Do Gov. Abbott and other Republicans want Joe Biden to be able to claim the power to detain people without charges anytime he wants? That's where their logic leads! I expand on this point in greater detail here.
If the framers and ratifiers of the Constitution had expected the invasion provisions of the Constitution to have such radical implications, one would expect them to note it at some point during prolonged debate over ratification. But there is no evidence that they did. The habeas corpus issue, in particular, is one that would have raised hackles in the Founding era, as British abuses of habeas corpus were a major grievance during the American Revolution.
Legal issues aside, the drumbeat of rhetoric equating drug smuggling and immigration and invasion has dangerous policy implications. An invasion is the kind of thing to which governments usually respond with overwhelming force. The more people think immigration and drug smuggling are equivalent to an invasion, the greater the likelihood there will be political pressure for such draconian measures as killing migrants, family separation (which Trump may seek to revive if he returns to power), and the idea of turning the War on Drugs into a real war by invading Mexico (a dangerous proposal increasingly popular in GOP circles). At the very least, "invasion" rhetoric moves the Overton Window on such ideas in the wrong direction.
For the moment, Abbott's invasion statement is likely to have only very limited effect. The Supreme Court ruling merely lifts the lower court injunction barring federal officials from cutting the razor wire installed by Texas. It does not actually order Texas itself to do anything, or even to refrain from installing additional wire. Thus, were are left with a weird situation where the feds can cut the wire, Texas can install more, the feds can cut it again, and so on. That may continue unless and until the courts resolve the case more fully.
But Texas's invasion arguments have dangerous implications for both legal and political reasons. Courts would do well to continue to reject them.
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