The Volokh Conspiracy

In 1968, Sen. Eugene McCarthy (D-Minn.) stunned the nation by getting 42% of the vote against incumbent President Lyndon B. Johnson.  President Johnson ended up withdrawing from the presidential race.  On Tuesday, Nikki Haley, who has never been elected to any national office before, just pulled in 43.3% of the vote running against a former Republican President with universal name id who is, in effect, an incumbent.  This is an extremely strong showing, which suggests that Donald Trump cannot beat Joe Biden in November 2024.  Seventy percent of the voters who backed Haley were unregistered, independent voters.  These are the kinds of voters Republicans would need to win if they are to beat Joe Biden.  Nikki Haley is getting those voters, and Donald Trump is losing them big time.

Nikki Haley should stay in this race until every state in the nation has voted just as George Herbert Walker Bush did in 1980 when he ran against Ronald Reagan.  At the moment, we do not even know if the Supreme Court is going to allow Donald Trump's name to be printed on the ballot!  And, no matter how the Court rules in Trump v. Anderson, do not expect Senate President Kamala Harris or a Democratic majority in the House of Representatives, on January 6, 2025, to count electoral votes cast for Donald Trump who all Democrats believe is disqualified from being re-elected as President by Section 3 of the Fourteenth Amendment.  The President of the Senate and a Democratic majority in the House of Representatives will not feel bound to follow the ruling of a Republican Supreme Court.  And, that is even without factoring in the likelihood that Trump will be convicted of at least some of the 91 charges on which he has been indicted and that he may lose the popular vote even if he wins in the Electoral College.

Do I think this would be unfair and wrong as a matter of constitutional law?  Of course, I do!  I, after all, signed a brief by three former Republican Attorneys General in Trump v. Anderson saying that Donald Trump is not barred from being re-elected by Section 3 of the Fourteenth Amendment.  But, if you want to know what Democrats think about this, and what they will do on January 6, 2025, take the time to read Yale Sterling Professor of Law Akhil Reed Amar's amicus brief, co-written with his brother Vikram, in Trump v. Anderson.  The Amar brothers think a Democratic President of the Senate and a Democratic majority in the House are not bound by the Republican Supreme Court's ruling in Trump v. Anderson. I would be stunned if all of legal academia and the press did not end up agreeing with them along with some conservative legal academics.  So, even if Donald Trump were to win in the Electoral College in 2024, Kamala Harris and the House of Representatives would not count his electoral votes.  There is simply no way that Donald Trump can win the 2024 presidential election.

What that means is that there is only one person who is running for the Republican nomination for President in 2024 whose electoral votes will be counted and who will pardon Donald Trump if she is elected:  Nikki Haley.  Republicans should pray for Haley to stay in this race until all fifty states have voted in the Republican primaries and caucuses.

The Ineligibility or Sinecure Clause (Article I, Section 6, Clause 2) states:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time . . . . (emphasis added).

Here and elsewhere, the Constitution of 1788 distinguishes "appoint" from "elect." Whether or not contemporaneous popular usage did that too is an entirely different question—just as legal usage sometimes differs from popular usage.

For a different point of view, see Roger Parloff, 'What Justice Scalia Thought About Whether Presidents Are "Officers of the United States",' Lawfare (Jan. 24, 2024, 9:01 AM), <https://lawfaremedia.org/article/what-justice-scalia-thought-about-whether-presidents-are-officers-of-the-united-states>.  If Parloff and others are correct, if appoint and elect are basically synonyms across constitutional provisions, then a strategic Congress could raise the President's (or Vice President's) salary, and if Congress did so, then a Senator with 2 or 4 years remaining on his/her term would be barred from being elected/appointed to the presidency and vice presidency. In other words, an incumbent President seeking re-election, working in tandem with a cooperative Congress, could bar all senators (with 2 or 4 years remaining on their term) from the minority party, by raising the President's salary $1! And they say the Blackman/Tillman position has odd, unexpected, undesirable consequences? Moreover, this point is not new. It has been in the literature since circa 2009. See Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol'y 107, 134–36 (2009).

Parloff might try to argue that the Sinecure Clause does not apply to the presidency, because the presidency is not a "Civil Office under Authority of the United States." That would be odd. As we understand it, Parloff's position is that the President is an "Officer of the United States" and the presidency is an "Office under the United States." Why wouldn't the presidency also be a "Civil Office under Authority of the United States"? And we have addressed at length why the President is not a military official. It would seem to follow that under Parloff's position, the presidency would be considered an appointed position under the Sinecure Clause. As a result, all of these negative consequences inhere to his position.

In a recent Volokh Conspiracy post, we wrote:

We have little doubt there will be more rushed and flawed entries in the debate. Critics with little or no expertise in the field will find something, anything, to prove that we are wrong. No doubt these critics will be unfamiliar with our full body of scholarship, which well exceeds a thousand pages. Critics will attack positions we never took, and ignore the positions we have actually taken. Critics will be unfamiliar with the proper context of sources from the 18th and 19th centuries. And critics will approach their conclusion with absolute certitude that they are right and Tillman/Blackman are wrong. Trust us, we've seen it all before. We could make a list of people who have said we were wrong, and then later had to retract or more. The list keeps growing.

Over the next two months or so, the United States Supreme Court is likely to provide some resolution to one or more of these contentious issues. And, we expect that more than a few will try to leave a mark on this debate in the near term and prior to judicial resolution. They will post new "research" at the last minute knowing full well that those who are in a position to confirm the accuracy of newly reported "research" will have little or no time to do so before the Supreme Court decides this case. And, for a few, that is not a bug, it is the chief feature.

If and how we respond will be a function of what time and other constraints we face in this final, pivotal period. Our candid message to you—the reader—is to approach such new, late-breaking entries in the debate with some caution.

The Supreme Court heard argument last week in two cases seeking to overturn the Chevron doctrine, which requires courts to defer to administrative agencies in interpreting the statutes that the agencies administer. The cases have nothing to do with cybersecurity, but Adam Hickey thinks they're almost certain to have a big impact on cybersecurity policy.  That's because, based on the argument, Chevron is going to take a beating from the Court, if it survives at all. With Chevron weakened, it will be much tougher to repurpose existing law to deal with new regulatory problems. Given how little serious cybersecurity legislation has been passed in recent years, any new regulation is bound to require some stretching of existing law – and thus to be easier to challenge.

Case in point: Even without a new look at Chevron, the EPA was balked in court when it tried to stretch its authorities to justify cybersecurity rules for water companies. Now, Kurt Sanger tells us, EPA, FBI, and CISA have combined to release cybersecurity guidance for the water sector.  The guidance may be all that can be done under current law, but it's pretty generic; and there's no reason to think that underfunded water companies will actually take it to heart. Given Iran's demonstrated interest in causing aggravation and maybe worse in that sector, Congress is almost certainly going to feel pressure to act on the problem.

CISA's emergency cybersecurity directives to federal agencies are coming fast and furious. That's a bad sign, since they are a library of flaws that are already being exploited. As Adam points out, they also reveal just how quickly patches are being turned into attacks and deployed. I wonder how sustainable the current patch system will prove to be. (In fact, it's already unsustainable; we just don't have anything to replace it.)

Here's some good news. The Russians have been surprisingly bad at turning cybersecurity flaws into serious infrastructure problems even for a wartime enemy like Ukraine. Additional information about Russia's attack on Ukraine's largest telecom provider suggests that the cost to get infrastructure back was lower than expected and mostly consisted of spending to win the victim telco's customers back.

Companies are starting to report breaches under the new, tougher SEC rule, Adam tells us, and Microsoft is out of the gate early.  Russian hackers stole the company's corporate emails, Microsoft says, but it insists the breach wasn't material. I predict we'll see a lot of such hair splitting as companies adjust to the rule. If so, Adam predicts, we're going to be drowning in 8ks.

Kurt notes recent FBI and CISA warnings about the national security threat posed by Chinese drones. The hard question is what's new in those warnings. A question about whether antitrust authorities might want to investigate DJI's enormous market share leads to another about the FTC's utter lack of interest in getting guidance from the executive branch when its jurisdiction overlaps with a national security concern. Case in point:  After listing a boatload of "sensitive location data" that should not be sold, the FTC had nothing to say about the personal data of people serving on US military bases.  Nothing "sensitive" there, the FTC seems to think, at least not compared to homeless shelters and migrant camps. I'm gobsmacked, which naturally leads to a new Cybertoon.

Michael Ellis takes us through Apple's embarrassing failure to protect users of its Airdrop feature. It comes on top of Apple's decision to live down to the worst Big Tech caricature in handling the complaints of app developers about its app store. Michael explains how Apple managed to beat 9 out of 10 claims in Epic's lawsuit and still end up looking like the sorest of losers.

Adam is encouraged by a sign of maturity on the part of OpenAI, which has trimmed its overbroad rules on not assisting military projects.

Michael takes us inside a new US surveillance court just for Europeans, and we end up worrying about the risk that the Obama administration will come back to impose new law on the Biden team.

Adam explains yet another European Court of Justice decision on GDPR.  This time it's a European government in the dock.  The result is the same, though: national security is pushed into a corner, and the data protection bureaucracy takes center stage.

Finally, we end with a sad disclosure. While bad cyber news will continue, cyber-enabled day drinking will not. Uber has announced the end of Drizly, its liquor delivery app.

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The FTC has begun a new campaign against data brokers who are collecting and selling "sensitive" location information. Cybertoonz asks the obvious question.

Just a quick post to note some upcoming talks and presentations, some of which may be of interest to readers.

• This Thursday, January 25, I will be a panelist at the Pacific Legal Foundation conference, Doctrinal Crossroads: Major Questions, Nondelegation & Chevron Deference, at Harvard Law School. The program is co-sponsored by the Harvard Journal of Law & Public Policy which will be publishing the papers from the conference. Other speakers include Gary Lawson, Michael Rappaport, Jed Shugerman, Alison Somin, and Paul Ray. Former White House counsel Don McGahn is giving a lunchtime keynote, and panel moderators include Judges Neomi Rao, Greg Katsas, Michael Park, and Paul Matey. Registration info is here.
• Tuesday, January 30 I will be a panelist on the Solomon Center for Health Law and Policy program, Loper and Chevron in the Court: The Fate of Deference to Administrative and Scientific Expertise at Yale Law School. Other panelists are Blake Emerson, Andrew Pincus, and Reshma Ramachandran. The program is co-sponsored by American Constitution Society at Yale Law School and Yale Federalist Society.
• Monday, February 19, I'll be speaking on The Next Big Abortion Rights Case (FDA v. Alliance for Hippocratic Medicine) at a Zaremski Law Medicine Forum with my colleague Prof. Jessie Hill here at the CWRU School of Law.
• Friday, February 23, I will be presenting at the Ohio State Law Journal's 2024 Symposium, What Next? The Rise, Fall, and Future of American Environmental Law. Other speakers include Richard Lazarus, Emily Hammond, Sanne Knudsen, Warigia Bowman, Alice Kaswan. Heather Tanana, Cinnamon Carlarne. Alejandro Camacho and Albert Lin.
• Saturday, April 13, I will be presenting at the Drake Constitutional Law Center's 2024 Constitutional Law Symposium, "Climate Change, the Environment, and Constitutions." Other speakers will include Jerry Anderson, Michael Gerrard, and Erin Daly.
• Friday, May 10, I will speak on a panel on marijuana legalization at the 2024 Eleventh Circuit Judicial Conference in Point Clear, Alabama. My co-panelists will be Jonathan Robbins and Jesse Panuccio.

I have not been deep in the weeds of the arguments about Section 3 of the Fourteenth Amendment, unlike my constitutional law casebook coauthors: Mike Paulsen, Michael McConnell, and Will Baude. But it is surprising to me that the former President of the United States seems to be putting most of his legal eggs in one basket—the argument that the President is not an "officer of the United States." This is the lead argument in the brief available here. And for reasons I cannot understand—as a matter of legal principle—this argument is now being advanced by various conservative legal luminaries.

Three observations:

1. The textual arguments advanced in the brief are weak, but the fundamental problem is a lack of sophistication about the interplay between semantics and context. Here is an example from pages 23-24: "every time this phrase appears in the Appointments Clause, the Commissions Clause, and the Impeachment Clause it excludes the President and refers only to appointed and commissioned officers rather than elected officials."

But it is not "this phrase" that excludes. In the Appointments Clause and the Commissions Clause, it is the context that makes clear that the President is not in view, because the President is not appointing or commissioning himself. It is not the semantic content of "officer of the United States."

By analogy, if I were to host a dinner for all of my colleagues at Notre Dame Law School, and I said "all law faculty are welcome, but none are obligated to be there," would I be saying that I, as the host, was not obligated to be there? Of course I would be obligated. Would I therefore be saying that I was not "law faculty"? No. My usage would not be advancing a narrow view of the semantic domain of "law faculty"; I would instead be using the phrase in a context that indicated that I was obviously excluded.

And in the Impeachment Clause it is not even the case that the phrase excludes the President, since it merely has an overlap with a very good reason for the additional specification. It is so important to make clear that the President and Vice President may be impeached—no small point against the background of royal prerogative power in England—that they are spelled out specifically. That does not mean they are not officers, and the brief's suggestion that "all other civil officers" would have to be used does not fit the legal drafting culture of the late eighteenth and nineteenth centuries. To give another example from that legal drafting culture, "necessary and proper" and "necessary or proper" and "necessary and appropriate" and so on all meant exactly the same thing (the sort of thing I explored here). This general point also weighs against any attempt to cut hyper-fine distinctions between an "officer of the United States" and an "office under the United States."

2. So is Section 3 such a context where the President is excluded? And here the argument in the former President's brief runs straight into the buzz-saw of what we could call the Andrew Johnson Problem. It is hard to imagine that the Reconstruction Congress that proposed Section 3 of the Fourteenth Amendment, and the state legislatures that ratified it—in the middle of an intense struggle with President Andrew Johnson, and focused on all the problems that could come from a President who was not on board with reconstruction—would say that the two people who should be allowed to be Confederates would be the President and Vice President. We can retrofit plausible explanations for why the President and Vice President might be different (e.g., the Lessig argument here). But the Reconstruction Congress was in the middle of fighting tooth and nail with Andrew Johnson. That Congress thought President Johnson was imperiling all that the Union soldiers fought for. Was that Congress creating an exception for President Johnson? The burden of proof for showing that they were in fact doing that is so massive that it could not be met except with the clearest possible evidence.

3. The argument on page 23 of the brief that a presidential oath to "preserve, protect, and defend the Constitution" is not an oath to "support" the Constitution is risible. Try explaining it to a child. It is an argument that should be treated with derisive scorn by everyone who encounters it. It is the kind of magic-words literalism that is the reason people think they hate lawyers. Justice Scalia once said that if he accepted a certain argument "I would hide my head in a bag." That is a fitting response to the argument that the presidential oath does not require the President to support the Constitution.