I summarize the President's Civil Liberties Oversight Board (PCLOB) report on section 702 of FISA in this Lawfare article.  Quick summary:

"The PCLOB report is a gold mine of authoritative information about Section 702, and evaluating the recommendations is a good way to refine one's view of what reforms are needed. Whether the report will have much impact on the debate over renewal, however, is less clear. The unanimous support for renewal may be influential in the sense that it confirms a sentiment that already seems widespread in Congress, despite the FBI's travails. The report's inability to agree on more than that will dissipate its influence, particularly because understanding the dueling proposals for 702 reform requires working through hundreds of dense pages."

The first Monday in October brought some deeply disappointing news. Tom Goldstein announced there would be some changes to SCOTUSBlog. Now, there will be a "smaller team running the blog's day-to-day operations." For more than a decade, for every merits case, there would generally be two or three separate posts: a preview before oral argument, a review of oral argument, and an overview of the published decision. These posts would be written by scholars and other subject matter experts. This was an invaluable resource whenever I needed to get up to speed on an case outside my area of expertise. But now, SCOTUSBlog "will no longer have full coverage of every merits case." Instead of this granular approach, the blog will cover "broader themes and threads."

Goldstein also announced that the blog "scaled back our statistical coverage" and "will no longer publish our annual Stat Pack." I already noticed this shortfall last Term. Indeed, in June, I contacted the blog to inquire about when the Stat Pack would be published. I was told that it would not be published. This was my go-to resource to understand trends on the Court. I was gobsmacked. I'm sure I was not alone. (Adam Feldman should start a Substack--I would subscribe.)

There were other noticeable cutbacks. One of my favorite features was Mark Walsh's "View from the Court." Mark would recount the visuals from inside the chamber, including fun interactions that would not be reflected in the transcript or recording. Those posts seem to have stopped. (Mark should start a Substack--I would subscribe.) I also noticed there were fewer symposiums on important cases. That deep coverage seemed to trickle down to a halt. Apparently the SCOTUSBlog podcast was on hiatus, but you all know my policy on podcasts. (You know it was really important for me to listen to this podcast--well, to be precise, I transcribed it, and jumped around to the relevant parts.)

The writing was on the wall for this change. In March 2023, Goldstein retired from Supreme Court advocacy. While SCOTUSblog originally began as something of a marketing vehicle for Goldstein's firm, it over time evolved into a venerable institution. SCOTUSBlog won journalism awards and was essential on handdown days--especially with NFIB v. Sebelius. But I had an inkling that once Goldstein had left the world of Supreme Court advocacy, his interest, and support of the site would diminish. Moreover, for the past few years, Casetext was a sponsor of SCOTUSBlog. (You may have noticed that links to opinions direct to Casetext, rather than to SupremeCourt.gov.) Well, Casetext was acquired by ThomsonReuters, and I suspect that sponsorship may have drawn to a close. As of today, I see nothing on the site about CaseText.

We all took SCOTUSBlog for granted for far too long. Countless authors wrote for free, knowing how influential the site was. But a slow farewell begins. It is the predictable arc of blogs: sites that are updated less are read less and have less impact.

Is there some other institution that could maintain SCOTUSBlog, and bring it back to its former heights? I am hopeful, but doubtful. Far too many people get their SCOTUS news from partisan podcasts and extemporaneous X posts. We are all worse for it.

Thank you SCOTUSBlog for making coverage of the Court that much better.

The distinction between elected and appointed positions is hardwired into the Constitution. This distinction arises in many contexts: the Foreign Emoluments Clause, Section 3, and now the qualifications for the Senate.

Article I, Section 3, lists three qualifications to serve in the Senate:

No Person shall be a Senator who shall not have (i) attained to the Age of thirty Years, and (ii) been nine Years a Citizen of the United States, and (iii) who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The first two requirements apply when the Person "shall be a Senator." That is, when the person actually seeks to hold the position. But the third requirement applies at a very specific time: "when elected." In modern times, that would mean on election day. But in 1788, there were no senatorial elections. Under the original design of the Constitution, Senators were not directly elected by the people. Rather, they were chosen by the state legislatures. Still the Constitution uses the language of "elected" in Article I, Section 3. The Constitution also uses the language of "elected" to refer to Senators in the Ineligibility Clause:

"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 [i]ncreased during such time."

Indeed, that provision uses both the language of "elected" and "appointed."

Moreover, under the original design of the Constitution, if a Senate vacancy arose when the state legislature was in recess, "the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." Notice the language: "appointments," and not "elections."

The Seventeenth Amendment changed the method by which senators were chosen. Now, senators would be "elected by the people." But the Seventeenth Amendment still allowed the state executive "to make temporary appointments."

In 2021, Seth Barrett Tillman and I discussed the Governor's powers to fill Senate vacancies in an article about insurrection:

"The Constitution authorizes a governor to temporarily fill a senate vacancy by appointment. In these situations, it is not clear that the inhabitancy qualification applies, as temporary senators are not 'elected.'"

As often happens, Seth and I write about obscure textualist issues that only become relevant much later. And so it has come to pass, once again.

Co-blogger Steve Sachs describes the latest controversy from California:

According to his official website, California Gov. Gavin Newsom on October 1 appointed Laphonza Butler to the Senate, to complete the term of the late Sen. Dianne Feinstein. Butler was apparently a Maryland resident as of very recently, but according to Newsom's office she plans to re-register to vote in California before her Wednesday swearing-in. . . .

Until recently, Butler wasn't an inhabitant of California. She lived there much of her life and apparently still owns a home there. But since then she moved to Maryland, where she made political donations and worked for a political committee.

Newsom's office has suggested that it'll be enough for Butler to re-register to vote in California before being sworn in on Wednesday

Steve suggests that the residency requirement attaches to both Senators who are elected by the people, and appointed by the Governor:

 The phrase "when elected" is broader than that, because it was adopted as part of the 1788 Constitution, when each state's senators were "chosen by the Legislature thereof" (Art. I, § 3, cl. 1), usually one legislative house at a time. So "elected" here means a whole process of official choice, not only some first-past-the-post vote by the general citizenry. . . .

The Seventeenth Amendment was adopted "in lieu of" the "chosen by the Legislature" requirement, as well as "so much of paragraph two of the same section as relates to the filling of vacancies." But it left the qualification requirements in Clause 3 intact. So the "when elected" requirement is still good law, and its most natural reading would include whatever form of official choice establishes a person as a putative senator.

I disagree. Elected means elected. And appointed means appointed. Both types of language (elected and appointed) language were used in the Constitution of 1788, and in Seventeenth Amendment.

And Seth offers an explanation for why the Framers may not have imposed the residency requirement on temporary Senate replacements:

It is not difficult to understand why the Framers of both the original Constitution of 1788 and the Seventeenth Amendment made this choice. The nation was geographically vast. It would take time to hold an election and, similarly, it would take time for a temporary appointee from one's home-state to physically move to the national capital. The capital itself, over time, would become the home to many former representatives, former senators, and other former senior government officials. It would make sense for states to be able to draw on these individuals as a temporary matter to fill vacancies—even where such appointees had no home-state residence. Where a candidate was filling a full six-year term, one wanted him to have home-state connections. But where a candidate was filling a temporary trust, it would make sense to loosen residence requirements so that a state could immediately have senate representation. For similar reasons, the strictures of the Ineligibility Clause applies only to elected members, and not to temporary senators holding short appointments.

Once again, a textualist reading of constitutional qualifications may lead to results that some view as unsatisfying. Of course, such consequentialism begins with a specific starting point: qualifications should be enforced rigidly. There is a different potential starting point: qualifications should not be enforced rigidly, but rather the democratic process should prevail. (Hint, hint, Section 3, Section 3). Let us not forget that the Senate has issued oaths to several members who were under the age of 30. Seth and I make this point in our tome on Section 3:

History supports this understanding of congressional practice. William Claiborne of Tennessee, who was born in 1775, was elected to and then began serving his two-year House term in 1797. He was only 22 years old. The House did not disqualify him. Claiborne was re-elected in 1799, when he was still not yet twenty-five. It was only some time during his second term that he finally reached the age of twenty-five.

Other examples abound. In 1806, Henry Clay of Kentucky was elected to the Senate by his state legislature. He took the oath, and he began serving while he was still twenty-nine years old. In 1816, the Senate administered the oath to Armistead Mason of Virginia, who was elected by the state legislature to a Senate term to fill a vacancy. The unexpired term would stretch about a year. At the time of Mason's election, he was twenty-eight years old. His elected term ended in March 1817, and he was still several months shy of his thirtieth birthday when his term ended. In 1818, the Senate administered the oath to John Henry Eaton of Tennessee. At the time, Eaton was only twenty-eight years old. According to the Senate Historical Office, "Apparently no one asked John Eaton how old he was."

Laphonza Butler better hope that the other Senators are textualists like Tillman and me. Or perhaps no one asks where she lives.

Unlike Ilya, I have been delinquent in posting information on upcoming speaking engagements. I forgot to let readers know about my talk to the University of Michigan Law School Federalist Society chapter on climate change policy (with a response by Prof. Rachel Rothschild), my presentation of my paper, "Standing without Injury" at the University of Chicago Constitutional Law Institute's Standing Doctrine Conference, and my participation in a panel on "Can Corporations Be Sued for Global Warming?" at the annual Cox Center for Internatinal Law Conference on "Climate Change and International Law at a Crossroad."

Perhaps most importantly, I neglected to note my participation in this year's "IronConLawProf" event sponsored by CWRU's Federalist Society chapter. This is a particularly fun event, in which professors are recruited to stage a mock oral argument for a case pending before the Supreme Court. What makes the event particularly fun (and inspired the name) is that the participating professors do not know which side they will have to argue until the start of the event. This year's case was Loper Bright Enterprises v. Raimando (the Chevron case), and I drew the government, so I had to do my best Elizabeth Prelogar impersonation. My colleague Prof. Jessie Hill was stuck arguing that Chevron should be overturned.

Here is a brief listing of public speaking engagements I have scheduled for the balance of the semester. (I'll update this list if additional events arise.)

On October 5, I'll be speaking at a Federal Bar Association, Northern District of Ohio Chapter CLE program at the, "Administrative Procedures Act Seminar: History, Interpretations, and Latest Rulings from the Bench." Other speakers include Profs. Emily Bremer of Notre Dame and Christopher Walker of Michigan. The event is 9am-1pm at the Carl B. Stokes Courthouse in Cleveland. Registration info is here.

On October 10, I will be speaking to the Federalist Society student chapter at Harvard Law School on "Environental Federalism: States as Laboratories of Environmental Policy." Prof. James Salzman will provide critical commentary. Details here.

On October 17, I will be speaking at mid-day to the Federalist Society student chapter at the University of Chicago on "Why the EPA Will Not Save Us from Climate Change."

On October 24, I will be making two Federalist Society chapter talks in Washington, D.C. First, at noontime, I will be speaking to the student chapter at George Washington University Law School again on "Why the EPA Will Not Save Us from Climate Change."

At 5pm that day, I will speak to the student chapter at the Georgetown University Law Center on the Roberts Court and my claim that the Court is (by historical measures) relatively restrained. Prof. Josh Chafetz will be on hand to heartily disagree.

On October 27, I will be a panelist on "State Constitutions and Climate Change" sponsored by the State Democracy Research Initiative at the University of Wisconsin Law School. Other speakers include Retired Justice Michael Wilson of the Hawaii Supreme Court, Dean Elizabeth Kronk Warner (S.J. Quinney College of Law), Professor Shelley Welton (Penn Carrey Law School), and Professor Miriam Seifter (Wisconsin).