Just published as the final article in the "Non-Governmental Restrictions on Free Speech" symposium; here's the Abstract (the article is here):
Does academic freedom require institutions of higher learning, both public and private, to apply the First Amendment rules applicable to public forums to analogous places on campus, as several prominent commentators contend? On this view, to avoid violating academic freedom, every college and university in the United States must allow highly uncivil speech in these areas, such as "Fuck War!" or "God Hates Fags."
This Article argues that such an interpretation of the dictates of academic freedom would seriously undermine the diversity of educational experiences available to students, a feature of American higher education long recognized as one of its great strengths. The Article contends that a policy maintaining basic civility norms in campus open spaces, including in free speech areas, doesn't violate academic freedom if implemented by viewpoint-neutral rules enforced in an educationally-oriented, ideologically evenhanded manner.
No, says Judge Fernando Gaitan's opinion today in Geico Gen. Ins. Co. v. Brauner(W.D. Mo.). The policy covered "bodily injury" "arising out of the ownership, maintenance or use" of an automobile, but the court held that this language didn't cover such a situation:
Kansas courts have held that "For an automobile insurer to be liable for an automobile accident, unless the express language of an insurance policy provides otherwise, the automobile must, in some manner, be involved in the accident, and the mere fact that an accident takes place in or near the automobile does not impose responsibility upon the insurer." Here, GEICO argues that the auto at issue in this case was not being used as a vehicle when the transmission of HPV occurred; instead, it was the mere situs of the alleged negligence, or at best was being used as a shelter (which is also an insufficient use under Kansas law to trigger coverage under Kansas auto policies).
Brauner [the insured] … argues that the HPV was contracted [by his sexual partner] as a result of a common, foreseeable, automobile use—sexual relations in a car. Defendant Brauner argues that the injury here is a result of a natural and reasonable incident or consequence of the use of the involved vehicle, and Kansas law requires no more than a minimal causal connection between the use of the vehicle and the injury. See Garrison v. State Farm Mutual Auto Ins. Co. (Kan. 1995) (finding a sufficient causal connection where the vehicle had been used to transport hunters and a gun discharged injuring a party). Brauner argues that "people have been generally known to have used vehicles as a venue for sexual relations dating back to the invention of the automobile and if GEICO wanted to exclude coverage for sex in a car, it could have done so."
Efforts to conserve and reintroduce wolf populations can be controversial. Such programs can be expensive and ranchers and farmers sometimes fear the potential impact on livestock. (The latter concern has led to programs offering compensation for wolf-induced losses.)
What if the benefits of wolf conservation and reintroduction are greater than we think? What if such programs generate economic gains that far outweigh their costs, including the costs of compensating those who might be adversely affected by increased wolf populations?
Recent studies uncover cascading ecological effects resulting from removing and reintroducing predators into a landscape, but little is known about effects on human lives and property. We quantify the effects of restoring wolf populations by evaluating their influence on deer–vehicle collisions (DVCs) in Wisconsin. We show that, for the average county, wolf entry reduced DVCs by 24%, yielding an economic benefit that is 63 times greater than the costs of verified wolf predation on livestock. Most of the reduction is due to a behavioral response of deer to wolves rather than through a deer population decline from wolf predation. This finding supports ecological research emphasizing the role of predators in creating a "landscape of fear." It suggests wolves control economic damages from overabundant deer in ways that human deer hunters cannot.
As to why this is significant, the authors write:
Measuring the economic benefits conveyed by predators is difficult—often, effects are indirect and operate through complex ecological changes. As a result, debates about the expansion of predators have pit salient costs against more speculative estimates of benefits that might be dismissed as unreliable or ideologically motivated. We quantify the indirect benefits of wolves (Canis lupus) to human lives and property through reductions in deer-vehicle collisions. Moreover, we decompose the effect into two components: changes in prey behavior versus prey abundance. This decomposition is important when effective policy depends on whether hunters can replicate the effects of predators. In the case of wolves, we conclude that human deer hunters cannot.
It is often hard to measure the economic benefits of wildlife conservation (and such benefits may not always exist), but this appears to be a case where the benefits are substantial.
I noted earlier that the Republican majority leader in the lower chamber of the North Dakota state legislature had introduced a bill that would effectively gut faculty tenure in the state's public universities. The bill has passed the House and is now awaiting a committee hearing in the Senate. HB 1446 has been amended to pull back somewhat on the ambitions of the initial version, but it remains an extraordinary proposal. The text of HB 1446 can be found here.
Although I appreciate the legislature's interest in ensuring that faculty employed at state universities remain productive over the course of their careers, the provisions of the current bill would significantly undercut an effective tenure system that is essential to promoting free inquiry on college campus.
. . . .
Post-tenure reviews of the performance of members of the faculty can be entirely compatible with the maintenance of a meaningful system of tenure protection. There are many ways that such a system of post-tenure review can be designed, but this bill would entrust university presidents with essentially unconstrained discretion to terminate tenured members of the faculty. Such sweeping discretion to revoke tenure and terminate a faculty member would effectively subvert the very purpose of granting tenure protections in the first place.
Today's decision by Judge Lewis Kaplan (S.D.N.Y.) is here. There are some other details as well; read the opinion, which largely focuses on Federal Rule of Evidence 415 ("similar acts in civil cases involving sexual assault …").
The ruling has significant shortcomings and may be overruled on appeal. The Biden Administration's position in this litigation is wrong for much the same reasons as the Trump Administration was wrong to target immigration sanctuaries.
On Tuesday, federal district court Judge Brian Wimes issued an important ruling striking down Missouri's Second Amendment Protection Act (SAPA). SAPA is a "gun sanctuary" law that restricts state and law-enforcement cooperation with efforts to enforce federal gun control laws.
Gun sanctuary laws enacted by red states are in large part modeled on immigration sanctuary laws enacted by numerous blue states and localities, in order to limit state cooperation with enforcement of federal immigration laws. During the Trump Administration, the federal government lost numerous lawsuits challenging the legality of immigration sanctuaries (I went over those cases in detail in a Texas Law Review article, and a piece for the Washington Post). Imitation is the sincerest form of flattery, and several red states have decided to imitate the blue states' success. Courts - including both liberal and conservative judges - were right to rule in favor of immigration sanctuaries, and Judge Wimes should have applied the same principles in the gun context, as well.
Judge Wimes correctly recognizes that "Missouri cannot be compelled to assist in the enforcement of federal regulations within the state." Longstanding Supreme Court precedent holds that the federal government cannot "commandeer" state officials to help enforce federal law. That precedent played a key role in the Trump Administration's defeats in various immigration sanctuary cases, most notably in the California "sanctuary state" case, which is closely analogous to the Missouri gun litigation. Judge Wimes could have saved himself a lot of time and effort by simply applying the same logic here.
Instead, the court concludes that SAPA violates the Supremacy Clause of the Constitution (which mandates that constitutionally authorized federal law is supreme over state law) because the Missouri law goes beyond merely refusing to help the feds and actually "regulate[s] federal law enforcement" and "interfere[s] with its operations." But, in reality, SAPA does no such thing. Its provisions merely impose constraints on state and local officials. To the extent that may not be true, Judge Wimes should have struck down applications of the law to federal officials, while leaving intact the constraints it imposes on state ones.
As evidence of the law's regulation of federal officials, Judge Wimes cites Section 1.410, which states that some federal gun laws "exceed the powers granted to the federal government" and Section 1.420, which lists several types of federal gun regulations that "shall be considered infringements on the people's right to keep and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri." But neither of these sections actually imposes any mandates on federal officials or restricts their activities in any way. Nothing here upsets the usual assumption that state laws are presumed to issue commands to state and local officials (or, in some cases, private citizens), not federal agencies.
Section 1.430 of SAPA specifically states that the federal gun regulations in question "shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state" (emphasis added). That clearly indicates the law is directed at the activities of Missouri state officials, not federal ones.
The closest SAPA comes to actually restricting federal officials is Section 1.450, which says "[n]o entity or person, including any public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms as described under section 1.420." Read in the context of the rest of the law (which focuses on state and local governments), I think this language should be interpreted as constraining state and local officials. But even if "[n]o entity or person" encompasses federal officials, the fact remains that nothing in the act in any way penalizes or obstructs federal employees seeking to enforce the laws in question.
In addition, SAPA includes a severability provision stating that "[i]f any provision of sections 1.410 to 1.485 or the application thereof to any person or circumstance is held invalid, such determination shall not affect the provisions or applications of sections 1.410 to 1.485 that may be given effect without the invalid provision or application, and the provisions of sections 1.410 to 1.485 are severable" (emphasis added). If Judge Wimes concluded that some parts of the law restrict federal officials, he should have applied the severability clause to invalidate the application of the law to that "person or circumstance," but left alone the restrictions on state and local officials, which are the main point of the law, and the only ones backed by any kind of penalty. Judge Wimes' ruling discusses some other aspects of severability, but ignores the fact that severability clause requires severing of invalid applications to specific "persons" and "circumstances."
If SAPA is deemed ambiguous on whether federal officials are covered, then it is important to keep in mind that Missouri courts, like the US Supreme Court, have a strong presumption against interpreting laws in ways that might render them unconstitutional. The Missouri Supreme Court has ruled that "[i]t is a well accepted canon of statutory construction that if one interpretation of a statute results in the statute being constitutional while another interpretation would cause it to be unconstitutional, the constitutional interpretation is presumed to have been intended." In case of ambiguity, the district court should have applied this presumption.
Judge Wimes also ruled that various parts of the law are unconstitutional because they violate the doctrine of "intergovernmental immunity," which bars states from regulating the federal government, and "discriminating" against it or "those with whom it deals." Most of the provisions he claims violate this doctrine actually just restrict the actions of Missouri state and local officials. Section 1.470 forbids state and local government agencies from hiring people who previously participated in the enforcement of the types of federal gun laws listed in the Act. But, as explained in my previous post on this case, Section 1.470 doesn't violate intergovernmental immunity for reasons addressed in previous litigation over the California sanctuary state law:
This issue, too, came up in the California sanctuary state case. The Ninth Circuit ruled that intergovernmental immunity does not forbid a part of the California law that requires employers to notify workers of potential ICE raids:
The Supreme Court has clarified that a state "does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them." Washington, 460 U.S. at 544–45. AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all. Accordingly, the district court correctly concluded that AB 450's employee-notice provisions do not violate the doctrine of intergovernmental immunity.
The same reasoning applies here. The hiring-restriction provision of H.B. 85 also "does not regulate federal operations at all." All it does is restrict state and local governments from hiring certain types of former federal employees and private parties who assisted in enforcing the federal laws in question. There is no discrimination impeding the actual performance of federal employees' jobs. Indeed, any discrimination only occurs with respect to careers the latter may want to pursue after leaving federal employment.
I would add that, as in the California case, the concept of "discrimination" is only relevant in situations where the state treats the federal government and its agents worse than other similarly situated actors, simply because the former are employed by the federal government. As in the case of the ICE operations affected by the California law, there is no meaningful private-sector analogue to federal enforcement of gun laws, and thus no possible state discrimination against the feds.
Section 1.440 of SAPA comes closer to violating the intergovernmental immunity because it indicates that state courts and law enforcement agencies have a duty "to protect the rights of law-abiding citizens to keep and bear arms within the borders of this state and to protect these rights from the infringements defined under section 1.420." This could be interpreted as requiring state officials to interfere with federal ones. But I would argue state laws are generally interpreted in ways that do not require actions banned by other state and federal laws, unless the law specifically states otherwise. Presumably, no one would argue that Section 1.440 authorizes Missouri state officials to commit murder, even if doing so might help protect gun rights. Similarly, it should also not be interpreted to require violations of federal laws binding under the Supremacy Clause. Even if this point is wrong, the right remedy is not to strike down all of SAPA, but simply invalidate any possible application that requires regulation of federal officials, and otherwise apply the severability clause discussed above.
As with the immigration sanctuary cases, this litigation has important implications for federalism that go beyond the specific issues involved. If the federal government can commandeer state officials, it will enable major power grabs by the executive, and undermine valuable interstate diversity. Even if you trust the Biden Administration to wield such power over gun laws, you may not trust the next Republican president (who might be Donald Trump again) with the power to commandeer states on their preferred issues.
If the anti-commandeering principle can be undermined by misconstruing severability clauses and ignoring state statutory interpretation rules, as Judge Wimes has done, the same types of maneuvers could be used to coerce states on other issues.
Finally, if state refusal to hire some types of former federal officials is struck down as a violation of intergovernmental immunity, it would severely constrain state governments' powers to choose their own employees. If Missouri cannot refuse to hire former federal gun-law enforcers, other states will be unable to bar former federal employees whose law-enforcement activities they find abhorrent. Imagine, for example, a liberal state that refuses to hire former Department of Homeland Security employees complicit in the Trump Administration's cruel immigration enforcement policies, such as child separation.
Finally, I should emphasize that Judge Wimes' ruling is wrong regardless of whether the federal gun laws listed in SAPA actually violate the Second Amendment or not. Even if these laws are entirely constitutional, so far as the Second Amendment is concerned, the federal government still can't commandeer states to help enforce them.
Hopefully, US Court of Appeals for the Eighth Circuit will take note of the many flaws in this district court decision, and overturn it on appeal.
NOTE: A few parts of this post are adapted from my earlier post on this case.
UPDATE: Strangely, Judge Wimes omitted discussion of what may be the most significant potential legal flaw in SAPA, the possibility that it bars state courts from enforcing federal law, as well as executive law enforcement agencies. The former are not protected by Supreme Court anti-commandeering precedent. I discussed this issue in some detail in an update to my previous post about this case. The bottom line is that this issue can be dealt with by the constitutional avoidance canon discussed above. If not, the mandate on state courts should be struck down, but severed from the rest of the law.
Plaintiff argues that the article was defamatory in implying that Plaintiff engaged in a pattern of embezzlement, which it concealed by ousting anyone who investigated a claim of wrongdoing. Such fraudulent activity was allegedly implied through the following statements:
"In 2018, [The Satanic Temple] sued Twitter for temporarily suspending the account of co-founder Lucien Greaves."
"Dozens of people" have been "kicked out for asking for financial records from this alleged-non-profit organization."
A former member was "sidelined after asking Greaves why 'he was going to sue Twitter like it was a personal vendetta, but then using [The Satanic Temple's] money to do so.'"
Plaintiff contends that these statements suffer from minor inaccuracies. For example, Plaintiff alleges that Twitter did not "temporarily" suspend Greaves, but rather permanently banned him. This inaccuracy allegedly defamed Plaintiff by implication because a permanent ban would justify legal action to a reasonable reader, while a temporary suspension would not. The Complaint also alleges that a reasonable reader would assume that the suit against Twitter cost Plaintiff a lot of money, when in reality the matter was handled pro bono and no money was expended. Plaintiff contends that this error and omission, when combined with the statement that Plaintiff has booted inquiring members, suggest that The Satanic Temple "is nothing more than a veneer of a charitable organization, whose purpose is in reality to enrich its directors with donations solicited through public fraud."
This an unjustifiable leap. Nothing about the Article's reference to Twitter even remotely suggests that Plaintiff has been engaging in fraudulent financial dealings. The same might not be said about the statement that dozens of people had been kicked out of The Satanic Temple for asking for financial records, which does raise some red flags. But Plaintiff does not allege that the latter statement is false, or that any relevant information has been omitted. There is nothing defamatory about accurately reporting signs of smoke even if there is no proof of fire.
On October 21, 2020, defendants signed a letter (the Letter) addressed to nonparties Dean Jack Knott (Knott) and Provost Katherine Fleming at NYU purporting to advance certain facts about plaintiff. The Letter begins with the statement that the "undersigned faculty … affirm the values of academic freedom," and continues with,
"[plaintiff] is currently circulating a petition accusing our department of violating his academic freedom and conducting an email campaign against the department. Over the years, many of us have been distressed and concerned over the positions that Professor Miller has espoused on his highly visible website, where he prominently displays his title as a full tenured professor in our department. These positions include characterization of transgender surgery as a eugenic form of sterilization, direct mockery ridicule of trans individuals, and denial of the Sandy Hook elementary school shooting."
Defendants referred to student complaints about plaintiff's classroom conduct and "the way in which he engages discussion around controversial views and non-evidenced based arguments." They wrote that he has "attacked a student who publicly objected to his criticism of mask usage in an in-classroom setting, and used his position of authority to intimidate students who choose to wear masks and abide by NYU policy, New York State law, and CDC guidelines," and that his act of naming and publishing the student's contact information had led to cyberbullying. Defendants expressed, "[w]e do not condone nor will we tolerate intimidation of students, staff, and colleagues" The Letter concludes:
"We call on Steinhardt and University leadership to publicly support the NYU community and undertake an expedited review, as per the Faculty Handbook and Title IV, of Professor Miller's intimidation tactics, abuses of authority, aggressions and microaggressions, and explicit hate speech, none of which are excused by academic freedom and First Amendment protections. If your review substantiates our claims, we ask that you publicly condemn his actions and take whatever further disciplinary measures are deemed appropriate. It is unacceptable to remain silent in the face of ongoing harm to our students. Further, we call upon the administration to establish stronger protocols and policies to protect students, staff, and nontenured faculty members from intimidation and harm."
The opinion, just handed down today, is Jones v. Bonti, written by Judge Robin Rosenbaum, and joined by District Judge Anne Conway (M.D. Fla.); Judge Charles Wilson concurred in the judgment, because he would have preferred to wait until the Florida Legislature finishes considering a bill that would lower the minimum age for gun purchases to 18, which may end up mooting the case.
I'm on the run right now, but I hope to post some excerpts later today or tomorrow. For now, the quick summary:
The majority concludes that the Florida law is comparable to various bans on handgun purchases—and, in some states, on handgun possession—by under-21-year-olds in the late half of the 19th century.
And the majority concludes that this history, from around the time the Fourteenth Amendment was enacted, is more significant than Framing-era history, because it is the Fourteenth Amendment that applies the Second Amendment to the states.
By way of perspective, until about 1970, the age of majority in the U.S. was generally 21, which helps explain why such restrictions coexisted with a general recognition of the right of adults (at the time, those 21 or over) to buy guns.
I've finished the second in what I hope will be a series of posts exploring the risk of partisan abuse of U.S. intelligence authorities. (For the other, see this opinion piece, coauthored with Michael Ellis.) Section 702 renewal is on the agenda for Congress in 2023, and building support for renewal means taking seriously complaints on the right that intelligence agencies were affected by partisan bias in their treatment of Donald Trump's candidacy, presidency, and staff. This means asking whether past practices created at least an appearance or a risk of partisan abuse -- and thus whether any intelligence reforms should address those risks.
In my latest look at the issue, in Lawfare, I note that "respectable" opinion is finally acknowledging that press stories about a Trump-Russia connection may have been slanted by mainstream media, and I examine the role that media bias played in the early stages of the FBI's investigation of Trump world. A few excerpts below:
The Trump-Russia media saga began with a bit of journalistic malpractice. As the GOP convention was preparing to nominate Trump, Gerth tells us, the Washington Post ran one of the early attacks on Trump for kowtowing to Russian interests: a July 18 opinion column from Josh Rogin headlined, "Trump campaign guts GOP's anti-Russian stance on Ukraine." It was wrong. In Gerth's understated words:
The story would turn out to be an overreach. Subsequent investigations found that the original draft of the platform was actually strengthened by adding language on tightening sanctions on Russia for Ukraine-related actions, if warranted, and calling for "additional assistance" for Ukraine. What was rejected was a proposal to supply arms to Ukraine, something the Obama administration hadn't done.
A critical part of the FBI's case against Page was the claim that his many contacts with Russians were part of what its affidavit called "a well-developed conspiracy of cooperation" between the Trump campaign and the Russian government. That's a remarkable claim, and it naturally gives rise to the question of exactly what the parties did to advance this "well-developed conspiracy." The FBI's answer was the GOP platform change—it was presented as a clear step by Trump's associates to move GOP policy closer to protecting Putin's interests.
As evidence of this crucial element, the affidavit relied on what it called an "article in an identified news organization" (that is, Rogin's op-ed) and "assesse[d] that, following Page's meetings in Russia, Page helped influence [the Republican Party] and [the Trump] campaign to alter their platforms to be more sympathetic to the Russian cause." That "assessment" had no basis in fact or any independent investigation; it relied entirely on the inaccurate opinion pieces in the Post, the Times, and the Atlantic.
I go on to suggest FISA reforms to address the problems surfaced by an FBI performance in the Crossfire Hurricane investigation that was disappointing at best -- and a partisan abuse of FISA at worst. You can read the whole thing here: https://www.lawfareblog.com/vicious-cycle-how-press-bias-fed-fisa-abuse-trump-russia-panic
More than a year and a half after the briefing on the motion to dismiss in this case was complete, a decision has arrived: Judge Tanya Chutkan has held that the federal court lacks jurisdiction, because both plaintiff and some of the indirect members of the LLC defendant are D.C. citizens. To refresh readers' recollection, let me reprise my April 4, 2021 article on the subject, where I suggested this would happen:
As I've suggested in my earlier posts (on the disclosure of private facts claim and the libel and false light claims), the lawsuit by Marc Rotenberg—former head of the Electronic Privacy Information Center—against Politico and Protocol is likely to be an uphill battle. This of course raises the question: Will Politico and Protocol be able to take advantage of D.C.'s anti-SLAPP statute? That statute, like others in various states,
allows early dismissal of lawsuits based on speech "in connection with an issue of public interest," if the court concludes that plaintiff's claim is legally unfounded;
generally suspends discovery until the motion is resolved;
requires expedited hearings and rulings in such cases;
presumptively requires a losing plaintiff to pay the prevailing defendant's attorney fees.
Anti-SLAPP statutes are bad news for plaintiffs with iffy legal claims.
But wait: Though many federal courts have held that state anti-SLAPP statutes apply in federal lawsuits based on state tort claims, others have disagreed. And the D.C. Circuit, in an opinion by then-Judge Kavanaugh, held that the D.C. anti-SLAPP statute is a procedural rule that doesn't apply in D.C. federal district court. Rotenberg sued in that federal court, so he needn't fear the anti-SLAPP statute, right?
Not so fast! The lawsuit is in federal court on a "diversity of citizenship" theory—the claim is that plaintiff Rotenberg is domiciled in D.C. and defendants Politico LLC and Protocol Media, LLC are headquartered and "incorporated" in Virginia. But there are also two other defendants, Robert L. Allbritton and Tim Grieve, who run Politico and Protocol. And while their addresses are listed on the Complaint as being the same as the Virginia address of Politico and Protocol Media, my quick research suggests that they might be domiciled in D.C.
On Thursday, James L. Buckley turns 100 years old. Most law students will know his name from the seminal case of Buckley v. Valeo. But he did so much more. He served as a lieutenant in the Navy. He was elected as New York Senator on the conservative party ticket. President Reagan appointed Buckley as undersecretary of state for international security. And Reagan latter tapped Buckley as a judge on the D.C. Circuit Court of Appeals. He is one of the most remarkable public servants of the 20th century. (I would add Judge Silberman to that list.)
I had the honor of meeting Judge Buckley at Justice Thomas's Story Lecture in 2021.I don't get star-stuck easily, but I got star-struck when I shook Judge Buckley's hand. I mentioned that I always teach his case in First Amendment, and he made a comment about the partisans that tried to shut him down.
The Wall Street Journal published an Op-Ed commemorating Buckley's birthday:
The oldest living former U.S. senator turns 100 Thursday. James L. Buckley is among the few in American history who have served in the upper echelons of all three branches of our government.
And there is a proposal to honor Buckley's legacy in my backyard:
Despite his exemplary public service, Mr. Buckley has yet to be honored in the way he deserves. There are public landmarks named for former U.S. senators from New York, including the Moynihan Train Hall, the Javits Center and the Robert F. Kennedy Bridge. But nothing as yet for Mr. Buckley.
A new bill could change that. Rep. Nicole Malliotakis (R., N.Y.) has introduced legislation to rename the Staten Island expanses of the Gateway National Seashore for the centenarian who in the early 70s co-sponsored the measure to create this very park. Sen. Dan Sullivan (R., Alaska) is co-sponsoring the bill. Why would an Alaskan want to honor the esteemed New York senator? Mr. Sullivan was an intern in Judge Buckley's chambers and admires him greatly.
As a native Staten Islander, who spent a lot of time at Gateway National park, I wholeheartedly endorse this proposal! Funny story: when I was a kid, my dad was pulled over by the federal park police while driving down Hylan Boulevard near Gateway park. He asked whether the park police even had the power (that is, jurisdiction) to pull us over. My dad said that the federal government has priority over the state government. That was the first time I realized there was such a thing as the federal government that was different from the local police department. I suppose I owe Judge Buckley some credit for that early lesson in constitutional law.
The debate triggered by right-wing Israeli government's controversial plan to neuter the Israeli Supreme Court and essentially eliminate judicial review has led to accusations that people are taking inconsistence stances on judicial review in Israel relative to their position on its use in the United States. Many on the left who support court-packing or other measures to neuter the US Supreme Court oppose Prime Minister Benjamin Netanyahu's plans to do the same to its Israeli counterpart. And vice versa.
Ilya Shapiro, director of legal studies at the conservative Manhattan Institute, tweets that "In Israel, the Left wants Supreme Court to maintain its awesome power (incl picking its own members) bc that benefits the Left. In the US, the Left wants to delegitimize a Court that's no longer doing its bidding. It's all about power, not principle." What Shapiro (who, to forestall a common form of confusion, I should note is a different person from me) says about the left can just as easily be said about many on the right who cheer on Netanyahu, while opposing any attempt to significantly weaken the power of the US Supreme Court.
However, it's a mistake to assume that everyone is inconsistent in this way. I, for one, oppose the right-wing Israeli government's judicial reform plan, and am also a longtime opponent of court-packing and other proposals that would neuter judicial review in the US. This combination of views may be a minority stance. But it's far from unique to me. A good many US liberal legal scholars and commentators also oppose court-packing in the US, while simultaneously (I suspect) opposing Netanyahu's plans, as well.
In both countries, I support strong judicial review because it preserves civil liberties and property rights and protects various types of minorities more than the political process is likely to do, if the latter is left unchecked. In addition, gutting judicial review is a standard tool of authoritarians seeking to undermine liberal democracy, used in such countries as Hungary, Turkey, and Venezuela. Here in the US, independent federal judges - including many conservative ones - rejected Trump's efforts to overturn the 2020 election. A judiciary under the thumb of the party in power would have been far less likely to do that. What I wrote in 2019 about judicial review in the US also applies to Israel and most other democracies:
For all their serious differences and very real flaws, mainstream liberal and mainstream conservative jurists still agree on many important questions, including protection of a wide range of freedom speech, basic civil liberties, and ensuring a modicum of separation of powers, among others. History shows that these are the sorts of restraints on government power that the executive… is likely to break during times of crisis, or when they have much-desired partisan agendas to pursue. Such actions are especially likely if the president [or prime minister in a parliamentary system] is a populist demagogue with authoritarian impulses…..
The deeply illiberal elements in Israel's present ruling coalition demonstrate that authoritarian populist impulses are a serious menace in that country, as well (as is also true in many other democracies). All the more reason to preserve judicial review as a check on them.
These general strengths of judicial review outweigh reservations we might have about specific judges and individual decisions they make. That's especially true if one of your main objections to the current majority on US Supreme Court is that it doesn't protect certain rights enough (abortion is an obvious example). A strong judiciary might well reinstate Roe v. Wade in the future. By contrast, gutting judicial review insures such a thing can never happen.
There are, to be sure, various ways to try to distinguish between the US and Israeli cases. Perhaps the most obvious is that, in the US, judicial review is the product of a written Constitution, while in Israel it rests on much shakier legal foundations. But what is true of the powers of the Israeli Supreme Court is also true of those of the parliamentary Knesset majority that seeks to neuter it. Neither has any basis in a written constitution enacted with broad popular support. That's because Israel does not have a written constitution at all!
Unless and until Israel does enact a written constitution, the powers of all Israeli political institutions rest on some combination of precedent, tradition, and political norms. So long as that remains the case, it makes sense to back those traditions and norms most likely to protect liberty, constrain tyranny of the majority, and forestall incipient authoritarianism.
As for the argument that the Knesset majority has special legitimacy because it was democratically elected, it's important to remember that democracy cannot be democratic all the way down. It depends on procedures and structures that themselves are not democratically chosen. That's especially true in Israel. Thanks in part to the absence of a written constitution enacted with broad supermajority support, the Israeli public has never had a meaningful chance to approve the procedures under which the Knesset is elected. As it turns out the present ruling coalition got into power largely because quirks in the electoral system excluded two parties opposed to them:
Two political parties, progressive-Zionist Meretz and Palestinian-nationalist Balad, failed to meet the 3.25 percent vote minimum required to enter the Knesset, and so cost the anti-Netanyahu half of Israeli politics about 6% of the total votes cast. Netanyahu's 64-seat majority is almost entirely a function of that threshold mechanic, which caused the disappearance of well over a quarter-million votes below the cutoff.
There are other potential ways to distinguish the two cases. But, like the written-constitution theory, they too either collapse upon inspection or aren't strong enough to justify completely neutering judicial review, as opposed to merely cutting back at the margin.
I will not try to go over them all here. But I will note one that potentially suggests it's more important to preserve the Israeli court than its US counterpart: the fact that the US system has a range of other checks on majority rule (federalism and separation of powers), whereas Israel has very few. There is some validity to this distinction. Elsewhere, I have indicated that Israel would do well to institute some non-judicial checks on majoritarianism, of its own. But the enormous size and scope of the modern federal government (which regulates almost every aspect of society), combined with increasing concentration of power in the hands of the executive, ensure that the US cannot readily dispense with judicial review, either.
None of this proves that either the US or Israeli systems of judicial review are perfect. There is plenty of room for debate over incremental reforms. I myself, for example, favor instituting term limits for US Supreme Court justices. But it would be a mistake to gut judicial review in either country - and for much the same sorts of reasons.
Last fall, the Alliance for Hippocratic Medicine (AHM) filed a lawsuit against the U.S. Food and Drug Administration seeking to force a revocation of the FDA's approval of mifepristone, a drug that is widely prescribed to terminate pregnancies (i.e. to perform a "medication abortion").
This lawsuit has generated substantial commentary, but very little legal analysis. Articles warn that a single federal judge in Texas could ban a common abortion drug, and cast all sorts of aspersions on that judge before he has issued a single ruling in the case, but few identify, let alone discuss, the legal questions that will determine the outcome of the case. Like most legal controversies touching abortion, everyone knows what side they are supposed to be one given their views of the underlying subject matter, and few have stopped to consider what the law has to say about how this case should be resolved.
As most of the underlying legal issues in AHM v. FDA concern administrative law -- and have nothing directly to do with whether the FDA properly approved mifepristone, let alone whether abortifacient drugs should be available, I figured it was worth taking a deep dive into the case. Fortunately, Adam Unikowsky, a former Scalia clerk who is now a partner at Jenner & Block, has already done such a dive.
In 2000, the FDA approved a drug known as mifepristone for purposes of terminating pregnancies through 49 days' gestation. The FDA concluded that mifepristone, when used in conjunction with a different drug called misoprostol, was safe and effective, and that the benefits of mifepristone exceeded the risks.
In November 2022, a group of plaintiffs, led by the Alliance for Hippocratic Medicine, filed a federal lawsuit in the Northern District of Texas seeking to overturn the FDA's approval of mifepristone and force mifepristone off the market. The plaintiffs have filed a motion for a preliminary injunction, which is currently pending in the district court.
This lawsuit has gotten considerable attention from the press. Many articles have accused the presiding district judge of being biased based on his legal advocacy before his appointment as well as second-hand descriptions of his personal views. I view these attacks as inappropriate and unfair: the judge was entitled to represent whatever clients he wished before ascending the bench, and I see no basis for believing that the judge will act in bad faith in this case or any other.
I would prefer that commentary focused on the legal merits of the lawsuit, and that will be the subject of this post. Cutting to the chase: the plaintiffs' legal theory is remarkably weak. Basic principles of administrative law, having nothing to do with abortion, squarely foreclose the plaintiffs' claims.
I will not venture a prediction on how the Northern District of Texas or the Fifth Circuit will rule. If the plaintiffs prevail in those courts, however, the Justice Department is likely to seek emergency relief from the Supreme Court. In my view, the Justice Department will likely prevail. If the subject matter of this case were anything other than abortion, the plaintiffs would have no chance of succeeding in the Supreme Court. The plaintiffs are banking on the hope that because this is a case about abortion, the Court will bend ordinary principles of administrative law. I predict it will not.
There are at least four problems with the plaintiffs' suit:
The plaintiffs' theory of standing is irreconcilable with Supreme Court precedent.
The statute of limitations has expired on plaintiffs' challenge to the FDA's approval of mifepristone. The plaintiffs claim that the FDA "constructively reopened" that approval in 2016, thus restarting the statute of limitations, but that's clearly wrong.
The plaintiffs did not exhaust their claims, even though a regulation explicitly required them to do so.
Although the plaintiffs claim that the FDA's actions are contrary to the Food, Drug, and Cosmetic Act (FDCA), the plaintiffs have failed to identify any particular provision of the FDCA that the FDA has actually violated.
The full post is here, and I recommend it because it is quite thorough.
I largely agree with Unikowsky's assessment of the legal merits of AHM's claims. Without making any predictions about how the case will turn out, I think it fairly clear that the plaintiffs have severe jurisdictional hurdles to overcome under existing law, and that they have failed to make their case on these questions. Like so many policy-oriented lawsuits, administrative law should control the outcome.
Unikowsky devotes substantial space to the threshold issue of standing and makes a powerful argument that the plaintiffs' allege precisely the sort of speculative injuries the Court held were insufficient in Clapper v. Amnesty International. He argues that to allow this case to go forward would, in effect, allow groups of doctors to challenge any agency decision that could conceivably result in an increase in injuries among an identifiable group of people. These objections are well-taken, and are not meaningfully addressed by AHM. Asserting that "Plaintiffs have standing six ways from Sunday," as AHM does in its reply brief, is not much of an argument. I would add that some of AHM's standing arguments are quite similar to those made by CREW in seeking to raise emoluments clause claims against then-President Trump, and I do not mean the comparison as a complement.
Standing is a serious obstacle to AHM's lawsuit, but it is hardly the only one. Another problem for AHM is making the case that a court, in 2023, should revisit a decision initially made by the FDA in 2000, and revised in 2016, when the statute has a six year statute of limitations. AHM tries to get around this with a creative and aggressive invocation of the reopener doctrine, under which (in certain limited circumstances) an agency can be said to have "reopened" a prior decision, thus allowing parties to reach back and challenge the prior decision in the context of a contemporary dispute. The problem is that the relevant caselaw on when and where this doctrine applies does not provide much support for AHM's specific claims, nor can AHM effectively appeal to the reopening doctrine's purpose of ensuring adequate opportunities for judicial review, as AHM had ample opportunity to challenge the FDA's prior actions.
It is difficult to maintain that the FDA has "reopened" a prior drug approval decision any time it considers a petition seeking a revision or modification of the rules governing a particular medication. Further, to treat all such actions as "constructively reopening" prior drug approval decisions would introduce tremendous uncertainty into the FDA's drug approval regime. Combined with AHM's expansive standing arguments, allowing AHM's claims to go forward would create open season on all manner of previously approved pharmaceuticals that one activist group or another decides to target. Fortunately, no such move is legally warranted.
The FDA determined that mifepristone is safe and effective when used as directed and has seen no reason to revisit that conclusion. AHM and its co-plaintiffs contest that view. Whether one agrees with the FDA or AHM on whether it is a good idea for mifepristone to be widely available, there is little doubt about how the underlying legal issues in AHM v. FDA should be resolved. The barriers to this suit are substantial, and AHM's attempts to surmount them are wholly unpersuasive.
One often hears school libraries' decisions to remove certain books labeled "book bans." Some object: Such removals don't actually ban the book; the book remains available at bookstores, and often at public libraries. It's just that the school system has decided not to make the book available to its students as something that the system endorses as worth reading. (Note that this argument can be independent of whether the libraries' actions violate the First Amendment; the legal question is unsettled, but independently of the legal question one might argue that such actions should still be condemned.)
One also often hears social media platforms' decisions to block certain posts, or remove certain accounts, labeled "censorship." Some object: Such actions don't actually use the law to punish speech, or even make such speech unavailable. It's just that the platform has decided not to make the book available to its users as something that the platform endorses as worth hosting. (Note that this argument can be independent of whether the platforms' actions violate the First Amendment; they likely don't, at least absent government coercion, since they aren't state action, but independently of the legal question one might argue that such actions should still be condemned.)
Here's my narrow observation for this post: One way of thinking about these controversies has to do with Justice Holmes' argument in U.S. ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921) against viewpoint-based restrictions on what can be mailed through the post office. (That argument was in the dissent, and was technically focused on a statutory construction question, but the Court eventually adopted it as a constitutional matter.) Holmes wrote,
The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues ….
And I take it that he was talking not just about abstract legal categories, but about the practical significance of the post office in the communications system of the day—and indeed in the intellectual lives of the people of the day.
