The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

There's a fascinating and detailed debate over whether former President Donald Trump is disqualified from again serving as President under Section 3 of the 14th Amendment. After House Speaker Kevin McCartyh was ousted, some of suggested that Trump should be Speaker, and some reports suggested the former President was open to it. (Maybe he liked the idea of having Speech and Debate Clause immunity to use as a shield against judicial gag orders.) But would Trump be eligible to be Speaker?

Setting aside the Section 3 issues (such as whether Trump's conduct was disqualifying and whether the Speakership is the sort of office covered by the amendment), there is a dispute over whether an individual who is not an elected member of the House may serve as speaker.

As summarized by Louis Jacobson for Politifact, many experts believe there is no constitutional requirement that the Speaker of the House be selected from among the House's members, even though this has never happened before. Back in 2015, Pete Williams reported for NBC that both the Clerk of the House and the House historian concurred with this view.

Not everyone shares this view. In today's WSJ, Michael Ellis and Greg Dubinsky argue against the notion that a non-House member can serve as Speaker. They believe it's an "urban legend" that the Speaker need not be an elected representative. They write:

The theory that anyone can be elected speaker relies on a seeming omission in the Constitution. Article I states that the House "shall chuse their Speaker and other Officers." Because the clause doesn't expressly state that the speaker must be a member, proponents infer that anyone could be speaker.

But textual silence in one clause is weak evidence. Settled practice, history and constitutional structure cut the other way. As a matter of longstanding practice, every speaker has been a member, a tradition that dates to the First Congress (1789-91). As the Congressional Research Service notes, the first recorded votes for nonmembers to be speaker were cast in 1997, and since then no nonmember has ever received more than a handful of votes in a speaker election. . . .

Constitutional structure also indicates that the speaker must be a member of the House. Article VI requires constitutional oaths of office only from senators, representatives, state legislators and all federal and state executive and judicial officers. It would make little sense to require an oath of office from these officials while exempting a nonmember speaker. Moreover, Article I vests all "legislative Powers" in the Senate and the House, and the House is "composed of Members" elected every two years. Unlike the "other Officers" elected by the House, like the clerk and the sergeant at arms, the speaker engages in legislative functions. By statute, the speaker must sign enrolled bills before they are presented to the president and administer the oath of office to other members. An enrolled bill signed by a nonlegislator could be vulnerable to legal challenge.

Other legal problems could arise if the speaker isn't a member. What if the House decided to elect a member of another branch? That would seem to violate the spirit of Article I, Section 6, which prohibits any person "holding any Office under the United States"—meaning certain executive or judicial officers—from being "a Member of either House during his Continuance in Office." It would be strange to bar a Supreme Court justice from being a member of Congress, but then allow one to serve as the far more powerful speaker.

Fortunately, it does not appear we will have to resolve this question any time soon. There are at least two House Republicans vying for the position, and one of them (or one of their colleagues) is likely to be the next Speaker.

UPDATE: Matt Franck also made the argument against the eligibility of a non-House member back in 2015 when some folks were suggesting Newt Ginrich should return as Speaker. See his NRO Bench Memos posts here and here.

I blogged in February about the decision by Judge Andrew L. Carter (S.D.N.Y.) in this case, which came out in our favor; to briefly quote Judge Carter (though you can read more in that post):

With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc ("the Hateful Conduct Law" or "the law"). Yet, the First Amendment protects from state regulation speech that may be deemed "hateful" and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs' motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED….

The New York Attorney General's office has appealed the case to the Second Circuit. My pro bono lawyers at the Foundation for Individual Rights and Expression have filed their brief on behalf of me and platforms Rumble and Locals (all of us are plaintiffs challenging the law), and in the last several days we've gotten ten other briefs supporting us. Here's a post on the subject from one of my FIRE lawyers, Daniel Ortner:

For the most part, the American Civil Liberties Union, Young Americans for Freedom, and the Babylon Bee don't see eye to eye. But last week these three organizations, along with 10 others (and a law professor) filed amicus curiae — "friend of the court" — briefs in the U.S. Court of Appeals for the Second Circuit supporting FIRE's challenge to New York's online hate speech law.

The government can't force websites to take a position on what speech is "hateful," "humiliating," or "vilifying." It also can't pressure websites to take down constitutionally protected speech. But that is exactly what New York's law tries to do: control a vast array of protected speech across a large swath of the internet.

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From today's decision by Judge John Koeltl (S.D.N.Y.) in Watson v. NY Doe 1:

In January 2018, an anonymous post on an Instagram account accused the plaintiff, Ralph M. Watson, of sexual misconduct. The plaintiff alleges that he was terminated from his position at the advertising agency Crispin, Porter & Bogusky ("CP+B") as a result of the accusation. The Instagram account was run by "Diet Madison Avenue" ("DMA"), an anonymous internet group whose stated purpose is to "expos[e] sexual harassment and discrimination in ad agencies …."

On May 22, 2018, the plaintiff brought an action in the Los Angeles, California Superior Court for defamation and related torts against DMA and alleged affiliated individuals. In response to the action, an unknown individual or individuals created a GoFundMe campaign to fundraise for the legal defense of DMA members, titled the "Diet Madison Avenue Legal Defense."

On January 17, 2019, the plaintiff filed an action in this Court against certain individuals, alleging defamation and other common law torts in connection with the allegations of workplace sexual misconduct made against him. DMA Doe is not a defendant in this action. DMA itself is also not a defendant in this action, although some of the defendants were or were alleged to be members of DMA….

On January 8, 2021, the plaintiff issued a subpoena to GoFundMe. The subpoena sought to require GoFundMe to produce: "All information, including identifying information, of any person(s) who created the GoFundMe account 'Diet Madison Avenue Legal Defense[,]' … including but not limited to … [n]ame(s) of all person(s) that created, maintained, and/or received funds from the account[.]" It also sought the addresses, email addresses, phone numbers, and internet protocol addresses for such persons. DMA Doe claims that the information sought would tend to reveal DMA Doe's identity, whether or not DMA Doe played any role in the creation of any allegedly defamatory posts. The plaintiff seeks to use the identifying information yielded by the GoFundMe subpoena to pursue his defamation claims in this Court….

The court concluded that the First Amendment precluded enforcement of the subpoena:

Free Speech Libel Civil Procedure Anonymity

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So the Colorado Court of Appeals held yesterday in Brookhart v. Reaman, in an opinion by Judge Lino Lipinsky de Orlov, joined by Judge Timothy Schutz; note that the opinion applies Colorado state law, and the rules may differ from state to state.

Four individuals (the requesters) asked the Gunnison County Library District (the library district) to remove a book titled Gender Queer: A Memoir (the book) from the shelves of the Gunnison County Public Library (the library) or, alternatively, to prevent children from accessing it. The requesters used the library district's own "Request for Reconsideration of Materials" form (the reconsideration form) to submit their requests. The library makes the reconsideration form available to the public through its website. Any person may complete and submit a reconsideration form to the library district to ask that an item be removed from the library's collection or that access to the item be restricted.

Respondent, Mark Reaman, in his capacity as the editor of the Crested Butte News, submitted a request under the Colorado Open Records Act (CORA), to the library district to obtain unredacted copies of the requesters' reconsideration forms. The library district responded by filing this case in district court … to obtain guidance on how it should respond to Reaman's CORA request [as the statute allows]….

The narrow, but important, issue before us is whether the library district is required to keep the requesters' identifying information confidential under section 24-90-119(1), which prohibits the disclosure of "any record or other information that identifies a person as having requested or obtained specific materials or service or as otherwise having used the library." Section 24-72-204(3)(a)(VII) links section 24-90-119(1) to CORA, providing that a records custodian shall deny disclosure of "[l]ibrary records disclosing the identify of a user as prohibited by section 24-90-119." This case involves the apparent conflict between two principles embodied in the Colorado Revised Statutes: the mandate that "all public records … be open for inspection by any person at reasonable times," except as "specifically provided by law," § 24-72-201, and library users' right of privacy protected through section 24-90-119(1).

Free Speech Privacy Right of Access

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Politics

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I had Professor Ron Rotunda for Constitutional Law in 2007. But for Ron, I doubt I would have become a constitutional law professor. He inspired me in ways I still think about to this day. In 2018, Ron suddenly passed away, far too young. The following year, I wrote a remembrance about Ron in the Chapman Law Review.

The Federalist Society has created a new annual webinar in Ron's memory about the state of the legal profession. It was my honor to moderate the first session. Greg Jacob, who served as a counselor to Vice President Pence on January 6, 2021, was our distinguished speaker.

I encourage you to watch this video, and hear Greg's story. There was no playbook for what he had to do between election day and inauguration day. I think he modeled the highest standards of ethics and zealous advocacy for his client, the country, and the rule of law. And credit is also due to Greg's very small staff, who worked under extreme pressure to resolve difficult legal questions. (For those curious, Judge Luttig was not an advisor to Vice President Pence, and did not even speak to the VP until January 8 or so; Jacob merely cited a Luttig tweet in the dear-colleague letter that was already written.)

From Taylor v. Smith, decided last month by a Pennsylvania appellate panel (Judge Correale Stevens, joined by Judges John Bender and Anne Lazarus) but just noted yesterday in the Westlaw Bulletin:

Victor Taylor ("Father") appeals from the order dated and entered March 1, 2023, awarding shared legal and physical custody of K.J. ("Child"), a male child born in April of 2020, to him and Kareem Smith, the nonbiological father who stood in loco parentis to Child….

Child was born to S.J. ("Mother"). At the time, Mother was in a relationship with Mr. Smith. Mr. Smith thought he was Child's father and raised Child with Mother until Mother's death in May of 2021. Thereafter, on July 12, 2021, it was confirmed that Father is Child's biological father. {We glean from the record that Father sought court approval to perform a paternity test. Mr. Smith does not dispute Father's paternity.}

Father and Smith were given joined custody, and the court affirmed; it began by quoting an earlier decision setting forth the rights of biological parents and others who had helped raise a child:

The parent has a prima facie right to custody, "which will be forfeited only if convincing reasons appear that the child's best interest will be served by an award to the third party." Section 5327 of the Custody Act pertains to cases "concerning primary physical custody" and provides that, "[i]n any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence." …

[But] "[w]hile this Commonwealth places great importance on biological ties, it does not do so to the extent that the biological parent's right to custody will trump the best interests of the child. In all custody matters, our primary concern is, and must continue to be, the well-being of the most fragile human participant—that of the minor child." "Once it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person."

The appellate court went on to say:

Parental Rights Children's Rights

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Over the last few years, political commentators have become more and more concerned about voter susceptibility to lies and misinformation. You might even say the subject has been made great again! Though some of us have been warning about these dangers since long before the rise of Trump. The latest focus of concern is misinformation generated by AI. This innovation could potentially make misinformation seem even more credible than previous technologies did!

In an insightful recent Bloomberg column (unfortunately paywalled), economist Tyler Cowen, my George Mason University colleague, suggests that concerns about AI misinformation may be overblown - not because voters can easily see through it, but because misinformation doesn't have to be very sophisticated to deceive those predisposed to believe it:

I have a prediction: AI-generated misinformation will not be a major problem in the 2024 campaign. But that's only because so many other forms of misinformation are already so rife.

Speaking in economic terms, the problem with misinformation is demand, not supply. Consider, for example, the view that the 2020 election was stolen from former President Donald Trump. To explain what happened in simple terms, there was a demand for this misinformation, namely from some aggrieved Trump supporters, and there was also a supply, most prominently from Trump himself. Supply met demand, the issue was focal and visceral, and the misinformation has continued to this day.

No one needed an AI-generated fake video of state officials fabricating ballots…. Even simpler technologies, such as photo manipulation, were not driving the fake news. Rather, the critical element was that many Trump supporters wanted to believe that their candidate had been wronged, and so Trump provided a narrative of victimization. Unfortunately, no proof or even pseudo-proof was required — and objective evidence against Trump has not broken his support….

Misinformation is, in many cases, a fundamentally low-tech product.

I have been making similar points for years (e.g. here, here, and here). The root of the problem of political misinformation is not that the deceptions are highly sophisticated or that a particular new technology (e.g. - social media) makes it easy to produce and spread it, but that voters have little incentive to seek out the truth and evaluate information objectively. Many instead act as biased "political fans," lapping up whatever ideas - including ridiculous conspiracy theories - support their preexisting views and prejudices.

Donald Trump's "Big Lie" about the 2020 election is a particularly egregious example of this phenomenon. But there are many other cases, including some that disproportionately appeal to left-wing voters, as opposed to right-wing ones. It would be a mistake to assume the phenomenon is confined to any one side of the political spectrum, even if the political right - at this moment in history - may have it worse.

The problem is further exacerbated by the enormous size, scope, and complexity of modern government, which makes it difficult for even relatively knowledgeable and conscientious voters to have more than a very superficial understanding of most policy issues. Voters ignorant about the basic structure of government and about how most specific policies work are more susceptible to various types of deception and misinformation.

In a recent article, I go over various strategies for alleviating political ignorance and bias, and argue that the best approach to addressing widespread voter ignorance and bias is to empower people to make more decisions by "voting with their feet" and fewer at the ballot box. Foot voters have much better incentives to seek out accurate information and evaluate it objectively than ballot box voters too. But I recognize that there are other potential strategies, as well, and suggest some of them are also worth pursuing.

Whatever we think of potential solutions, the beginning of wisdom is to recognize that the problem is rooted in demand, far more than supply. It long predates AI and other modern technologies, and it is not even clear that the latter have made it significantly worse than before.

Criminal Law

Spousal Rape Conviction Reversed Because Lower Court Didn't Give Defendant Access to Accuser's Immigration Records

One of the defense's theories was that "the requested immigration records" might "support [the ex-wife's] motive to fabricate because claiming she was a victim of a sexual assault would provide a way to continue her legal residency in the United States without assistance from Appellant after her divorce."

Eugene Volokh | 10.5.2023 9:53 AM

In U.S. v. Warda, decided last week by the U.S. Court of Appeals for the Armed Forces, in an opinion by Judge Tia Johnson, joined by Chief Judge Kevin Ohlson and Judges John Sparks and Liam Hardy, the court reversed defendant's rape conviction:

Appellant and MB met on Facebook in 2012. After communicating over various platforms for a few years, they met in person for the first time in December 2015, when Appellant and his family traveled to MB's home in Amman, Jordan, to ask her family for permission to marry MB. They were married in a Sharia Court in Jordan on December 15, 2015. Afterwards, MB remained in Jordan while Appellant returned to the United States.

In the spring of 2017, Appellant and MB argued over the phone and Appellant orally divorced her by talak, the Islamic term for "divorce." MB testified that after three oral talaks, a divorce is final and cannot be revoked. Appellant's brother AF elaborated:

The way that you execute that divorce is orally, so you just say, "I renounce you." It could be over text message, over the phone, it could be in person, and if you do it three times that's the final divorce. Afterwards, you could [sic] that administrative paperwork, but once you say the word it's an effective divorce.

Appellant revoked the first talak, and in May 2017, MB went to New York to obtain a Green Card. Later that summer, she moved to New York to live with Appellant.

Over the next couple of months, Appellant announced two more talaks. AF testified that when he spoke to MB after the third and final talak in September 2017, MB told him that she wanted citizenship and the dowry she had been promised. AF testified that when he told her he could not deliver either of those things, she replied, "You will see what I am going to do and you will regret it."

In October 2017, MB reported to civilian law enforcement that Appellant had forced her to have sex on more than one occasion, including in August 2017, which is the incident at issue in this case. She sought a temporary protective order against him, and in February 2018, she obtained a long-term protective order. Their divorce was finalized in April 2018. MB's Green Card expired in May 2019, but she remained in the United States. In March 2020, she took a job as an administrative assistant with a nonprofit organization that provides immigration services. By the time she testified in September 2020, she had been living in the United States for three years, where she worked and attended college, and she had made several trips to Jordan to visit her family.

The court concluded that the trial court erred by denying defendant access to MB's immigration records; the records, the court held, were "essential to a fair trial":

Criminal Law Sex Crimes Immigration Evidence

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Free Speech

No California Bar Discipline for Lawyer Who Tweeted "They Should Be Shooting the Looters" and "Shoot the Protesters"

"Respondent presented this court with a credible and reasonable interpretation of the meaning behind her words, i.e., that she posted the above-noted tweets as an expression of her anger, fear, and frustration with the violence taking place around her and in disagreement with some of the sentiments she saw being expressed by others on Twitter."

Eugene Volokh | 10.5.2023 8:44 AM

Yesterday's decision by State Bar Court of California Judge Dennis Saab in In the Matter of Brown stemmed from the Office of Chief Trial Counsel of the State Bar of California (OCTC) charging a lawyer with, among other things, engaging in "moral turpitude" and violating state and federal law "by directing others to commit acts of violence." Here's an excerpt from the (long) opinion (for more factual details and for more on the other charges, see the full opinion):

OCTC alleges that, between May 29 and May 31, 2020, Respondent committed acts of moral turpitude by posting certain tweets "that directed other[s] to commit acts of violence, including calls to shoot, summarily execute, and burn down the homes of members of the public." In particular, the [OCTC] alleges the following tweets constituted misconduct: (a) "Can't wait. At least a reason to shoot them" (Tweet No. 1); (b) "They need to be shot" (Tweet No. 5); (c) "Yes and they should be shooting the looters" (Tweet No. 14) and "They should be shot. And if it was your business you'd pull the trigger" (Tweet No. 15); (d) "Shoot the protesters" (Tweet No. 7); (e) "Let's burn your house" (Tweet No. 13); and (f) "Omg Scarborough you've hit a new low in stupidity. Let's go burn your house down with you in it" (Tweet No. 10).

Because [this count] charges Respondent with misconduct based purely upon the content of her speech, the protections of the First Amendment are implicated.

Free Speech

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I blogged two weeks ago about Hansen v. Volkov, a then-nonprecedential decision on the subject (I quote that post below). Last Friday, Prof. Aaron Caplan (Loyola) and I—who have both written about First Amendment limits on harassment restraining orders—filed a letter asking the California Court of Appeal to "publish" the decision, which is to say to make it precedential; and I'm delighted to say that yesterday the court agreed, ruling (in relevant part):

The opinion in this case filed September 18, 2023 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the nonparty's request pursuant to California Rules of Court, rule 8.1120(a) for publication is granted.

Prof. Caplan and I had done the same in 2020 with regard to Curcio v. Pels, another important case involving limits on harassment restraining orders. You can read the new precedential opinion in Hansen v. Volkov here, though it's very close to the nonprecedential opinion I discussed in the original post (the minor changes are described in the docket):

Free Speech Harassment

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From Prof. Howard Friedman (Religion Clause):

Last week, Michigan Congressman Shri Thanedar announced formation of the 28-member "Hindu, Buddhist, Sikh, Jain US Congressional Caucus." According to India West Journal: "The group will address cultural misunderstandings, promote interfaith dialogue and harmony, and support initiatives to promote the well-being, education, and empowerment of the Hindu, Buddhist, Sikh, and Jains in the US." However, four Hindu, Sikh and Muslim civil rights groups issued a press release sharply criticizing formation of the caucus, saying it does not represent all parts of the South Asian community across faith, caste and ethnic lines. The press release says in part:

"… In June of this year, Congressman Thanedar announced his intention to form a Hindu Caucus without input from the full spectrum of Hindu American civil society, including Dalit and linguistic community organizations. This caucus seems to be a new iteration of that previous announcement."

"If this caucus is that announcement repackaged with a more inclusive label but the same makeup, it will likely combat meaningful oversight of the U.S.-India relationship, ongoing work to protect the civil rights and safety of Sikhs and other marginalized groups, and efforts to ban caste discrimination at a federal level. Moreover, given the lack of Muslim representation, it may oppose ongoing efforts to combat Islamophobia. In short, any caucus without inclusive representation from the Indian diaspora will serve as nothing more than a vehicle for Hindu nationalist policies that will inevitably harm the entire South Asian American community, including Sikh, Muslim, Dalit, Buddhist, Jain, and even Hindu Americans."

Religion

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Today, the Fifth Circuit will be hearing oral arguments in National Horsemen's Benevolent and Protective Association v. Jerry Black (listen to the livestream at 3pm CT!). I submitted an amicus brief on the side of the challengers, arguing that the Horseracing Integrity and Safety Authority is unconstitutional because its members haven't been appointed consistently with the Appointments Clause.

A bit of background about the case: The Horseracing Integrity and Safety Authority is a nominally private organization that (thanks to the Horseracing Integrity and Safety Act of 2020) has regulatory authority over thoroughbred horseracing. The Fifth Circuit invalidated the authority under the nondelegation doctrine in November 2022; then, six weeks later, Congress amended the statute to beef up FTC oversight over the authority. In a parallel Sixth Circuit challenge, the Sixth Circuit held that the new statute saved the Authority; meanwhile, the Fifth Circuit remanded to the district court for further consideration. On remand, my friend Ilan Wurman, law professor at Arizona State, pushed the Appointments Clause argument (among others), but his arguments were rejected by District Judge James Wesley Hendrix; this appeal follows. The case is being heard today before Judges Carolyn Dineen King, Stuart Kyle Duncan, and Kurt D. Engelhardt, the same panel that decided the original case.

My amicus brief is filed on behalf of the Reason Foundation, the Cato Institute, the Competitive Enterprise Institute, the Goldwater Institute, the Manhattan Institute for Policy Research, and the Niskanen Center -- organizations that all agree that any organization granted coercive power (whether a governmental administrative agency or a nominally private entity) needs to have political accountability. Thanks also to my law-school friend Raffi Melkonian of Wright Close & Barger, without whom I wouldn't have been able to file anything in the Fifth Circuit!

The text of the amicus brief is below. (Meanwhile, a much expanded argument about private delegation, that covers many theories beyond the Appointments Clause, is forthcoming in Notre Dame Law Review.) Enjoy!

* * *

Summary of Argument

1. Whether a particular person is an Officer, and thus subject to the Appointments Clause, is governed by a simple test: whether, as a "continuing and permanent" matter, that person "exercis[es] significant authority pursuant to the laws of the United States." The members of the Horseracing Integrity and Safety Authority are plainly Officers by that standard.

2. Whether the members of the Authority are nominally private is unimportant for Officer status. The statutory labeling of the Authority as private, and the fact that the Authority is organized as a private organization under state law, are constitutionally irrelevant, and in any event Appointments Clause doctrine does not demand that an Officer formally be a public employee.

3. The District Court's use of a rigid public-private distinction here was misguided. First, the fact that the members of the Authority wield quintessentially governmental powers—rulemaking, investigation, and enforcement—means that they should be considered public for Appointments Clause purposes, regardless of whether they are classified as private under the statute or under state law.

Second, to the extent some public-private distinction is relevant here, that distinction can apply differently for different doctrines, so it is a mistake to use public-private distinctions from the Appointments Clause, the Nondelegation Doctrine, and the State Action Doctrine interchangeably. Thus, the previous panel's assumption that the Authority was private for Nondelegation Doctrine purposes does not foreclose this Appointments Clause challenge, even if one believes that the Appointments Clause does not apply to private entities.

And third, regardless of the public-private distinction, notions of political accountability demand that the Authority be subject to Appointments Clause constraints.

4. Even if the District Court were correct to assume that the State Action Doctrine is relevant here, it was wrong to determine that the Authority is not a state actor. On the contrary, this is an easy case for state action, because rulemaking, investigation, and enforcement of federal law are traditionally exclusive public functions.

5. The December 2022 statutory amendment does not change any of the foregoing, because it leaves all of the Authority's powers intact. In the limited context of rulemaking, it is now true that the FTC may alter any rule promulgated by the Authority. But unless and until the FTC conducts a rulemaking to do so, the Authority's rules remain binding. At most, this limited FTC oversight is possibly relevant to whether the Authority members are principal or inferior Officers.

Yesterday the Supreme Court heard oral argument in Consumer Financial Protecion Bureau v. Community Financial Services Association of America, a case challenging the constitutionality of the manner in which the CFPB is funded. According to the respondents, the CFPB's funding mechnism violates the Appropriations Clause because the CFPB is funded through the Federal Reserve Board, in amounts requested by the CFPB, rather than through the usual annual appropriations process through Congress. (For more on how the CFPB is funded, see here and here.)

At oral argument, Justice Barrett asked the Solicitor General about an argument made in defense of the CFPB in an amicus brief submitted on the government's side. Interestingly enough, SG Prelogar unequivocally rejected the amicus brief's argument.

Here's the exchange (slightly cleaned up):

JUSTICE BARRETT: General, can I ask you a question about . . the Treasury? So the professors of constitutional law and history say, listen, the Appropriations Clause doesn't even apply here at all because these funds aren't being drawn from the Treasury. Do you agree with that argument? It's not the argument that you made.

GENERAL PRELOGAR: We are not making that argument. We accept that the Appropriations Clause applies here. The reason for that is we understand the term in the Constitution to refer to the public treasury as a general matter, not specifically to the Treasury Department.

Of course, at the time of the founding, ratification, the Treasury Department hadn't even been created, and that's also how this Court has described the scope of the Appropriations Clause in cases like OPM versus Richmond, where it referred to public monies generally.

And, of course, the --the contrary approach would expose a gaping loophole in Congress's authority here because it would mean the executive, if it has funds that aren't held in the general treasury, could spend even without Congress appropriating it or providing that authority in the first place.

It seems in the SG's view, the amicus' argument would raise (or exacerbate) some of the accountability concerns made by those challenging the CFPB's funding structure, and thus sought to distinguish those arguments from those the government is actually making on the CFPB's behalf.

UPDATE: Some commenters read this post as a criticism of the SG. Far from it. I think the SG handled the matter properly and prudently. Based upon my read of the briefs and argument, the arguments made by the SG were both more grounded in history and practice and more likely to appeal to potential swing justices than were the arguments in the amicus brief. At the same time, the presentation of more "extreme" arguments in the amicus brief may help make the SG's arguments look more moderate and reasonable.

State v. Valdiglesias Lavalle, decided Thursday by the Washington Supreme Court (in a unanimous opinion written by Justice Sheryl Gordon McCloud), involved Washington's criminal solicitation law, which makes it a crime to,

with intent to promote or facilitate the commission of a crime, … offer[] to give or give[] money or other thing of value to another to engage in specific conduct which would constitute such crime."

(Many states don't require the offer or giving of a thing of value.) Here's the court's summary, and account of the facts:

A jury convicted Vanessa Valdiglesias LaValle of two counts of criminal solicitation after she told her minor son, S.G., that he could be with her "forever" if he poisoned his father.

Criminal Law Free Speech

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Yesterday I noted the concern that Laphonza Butler—sworn in earlier today as a senator from California—remains under the Constitution a citizen of Maryland, not an "inhabitant" of California as Article I requires. (There are also arguments that she was not yet a California "elector" when appointed, as state law may require.) Because the U.S. Senate is "the Judge of the Elections, Returns and Qualifications of its own Members" under Art. I, § 5, cl. 1, it's also the only body that could declare Butler ineligible to serve.

So must it? Seth Tillman, Josh Blackman, and Mike Ramsey have argued that it doesn't really matter—that it's perfectly fine for this Marylander to represent California in the Senate. The Seventeenth Amendment provides for two routes to a Senate seat, being "elected by the people" or receiving a "temporary appointment[]" from the state executive. Because Article I's residence requirement applies to a senator "when elected," they argue that it's wholly inapplicable to appointments—and that Gov. Newsom could appoint someone from Alaska or New York if he wants to.

I'd discussed this argument briefly in my prior post, but it deserves response at greater length, especially as it seems to have persuaded some eminent folks. Even so, just as there's a danger in failing to read constitutional text carefully, there's also a danger of unconsciously importing a degree of precision that might not have been perceived at the time. The crucial "when elected" language comes, not from the Seventeenth Amendment (which speaks of senators "elected by the people"), but from the original Constitution. That text used terms such as "elected," "appointed," and "chosen" in occasionally overlapping ways—sometimes distinct, sometimes coextensive. Most importantly, that's how such words were actually read, whether in the Philadelphia Convention, in the Federalist, or in the early-nineteenth-century Senate, which in 1809 actually decided a contest on this issue in favor of requiring residence. By contrast, drawing new lines between election and appointment would make a hash of a variety of other constitutional provisions.

Politics Senate Constitution

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The Supreme Court has granted certiorari to review two big state laws trying to impose limits on social media censorship (or "curation," if you prefer) of platform content. Paul Stephan and I spar over the right outcome, and the likely vote count, in the two cases. One surprise: we both think that the platforms' claim of a first amendment "right to curate" is in tension with their claim that they, uniquely among speakers, should have an immunity for that form of speech.

Maury weighs in to note that the EU is now gearing up to bring social media to heel on the "disinformation" front. That fight will be ugly for Big Tech, he points out, because Europe doesn't care if it puts social media out of business, since it's an American industry. I point out that elites all across the globe have rallied to meet and defeat social media's challenge to their agenda-setting and reality-defining authority. India is aggressively doing the same.

Paul covers another big story in law and technology: The FTC has sued Amazon for antitrust violations – essentially price gouging and tying. Whether the conduct alleged in the complaint is even a bad thing will depend on the facts found by the court, so the case will be hard fought. And, given the FTC's track record, no one should be betting against Amazon.

Nick Weaver explains the dynamic behind the massive MGM and Caesars hacks. As with so many globalized industries, the ransomware supply chain now has Americans in marketing (or social engineering, if you prefer) and foreign technology suppliers. Nick thinks it's time to OFAC 'em all.

Maury explains the latest bulk intercept decision from the European Court of Human Rights. The UK has lost again, but it's not clear how much difference that will make. The ruling says that non-Brits can sue the UK over bulk interception, but the court has already made clear that, with a few legislative tweaks, bulk interception is legal under the European human rights convention.

More bad news for 230 maximalists: it turns out that Facebook can be sued for allowing advertisers to target ads based on age and gender. The platform lost its immunity because it facilitated advertiser's allegedly discriminatory targeting.

The UK competition authorities are seeking greater access to AI's inner workings to assess risks, but Maury Shenk is sure this is part of a light touch on AI regulation that is meant to make the UK a safe European harbor for AI companies.

In a few quick hits and updates:

I explain the splintered PCLOB report, which endorses 702 renewal, with widely diverging proposals for reform.
Paul tells us that the Biden Administration plans to bring back "net neutrality" rules. Hey, if we're going to start reviving hits from 2010, can we bring back Ke$ha's TikTok instead?
I flag an issue likely to spark a surprisingly bitter clash between the administration and cloud providers – Know Your Customer rules. The government thinks it's irresponsible from a cybersecurity point of view to let randos spin up virtual machines. The industry doesn't think the market will tolerate any other way of doing business.
Speaking of government-industry clashes, it looks like Apple is caught between (a) Chinese demands that it impose tough new controls on the apps it makes available in its app store and (b) human decency. Maury has the story. And I've got a solution. Apple should just rebrand the totalitarian new controls it must adopt as "app curation." Seems to be working for everyone else.

Download 474th Episode (mp3)

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[I'm reposting this because the linked article disappeared from SSRN's website soon after I posted it, until a copyright permission issue was resolved.]

My article, Students for Fair Admissions and the End of Racial Classification as We Know It, has been published in the new Cato Supreme Court Review. Here is the abstract:

The Supreme Court's decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) likely marks the beginning of the end of the overt use of race in university admissions. The Court's decision, however, has much broader implications.

Harvard University and the University of North Carolina (UNC) classified applicants based on racial and ethnic categories adopted by the federal government in the 1970s. SFFA concluded that these classifications were so arbitrary as to be unconstitutional. SFFA therefore offers a broad new avenue of attack for litigants challenging racial preferences and other race-based policies based on these ubiquitous classifications. Any entity that is sued for engaging in discriminatory preferences or for otherwise allocating goods or services by race will need to explain why the racial classifications they rely upon don't fail the arbitrariness test.

Part I of this article briefly reviews the history of the use of racial preferences by universities starting in the 1960s.

Part II of this article discusses how the SFFA case disrupted a cozy status quo, in which universities pretended to abide by the limitations the Court had imposed on the use of racial preferences and the Supreme Court pretended not to notice that universities were ignoring those limitations.

Part III of this article notes that, for the first time, a Supreme Court majority has concluded that the standard racial classifications used by universities and many other institutions are arbitrary and incoherent. This means that many other uses of racial classifications beyond university admissions are suddenly more vulnerable to legal challenge.

That is the subject of Part IV of this article. It discusses potential challenges to the use of race-based preferences in government contracting; to the mandatory use of racial classifications in biomedical research; and to the arbitrary standards the government uses to classify people as American Indians.

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