Earlier this week, the Notre Dame Law Review hosted its annual Federal Courts symposium (which results in an annual federal courts issue of the journal).
The keynote of the event was a question-and-answer session with Associate Justice Brett Kavanaugh, moderated by Notre Dame Dean Marcus Cole.
During the session, Justice Kavanaugh discussed multiple administrative law topics, including Chevron, the Major Questions doctrine, and the APA, as well as other topics related to legal education, including the U.S. News & World Report law school rankings.
Of note, Justice Kavanaugh did not disparage Chevron, or suggest that it needs to be curtailed, but said that he is a "footnote 9 person," in that he thinks courts have to carefullly scrutinize the relevant statutory language, using all of the traditional tools of statutory construction. A consequence of this approach, he explained, is that courts will not be in a position to consider deferring to agency interpretations nearly as often, so there will be less need to cite or reference Chevron as such. By contrast, non-footnote 9 people, Justice Kavanaugh suggested, are more willing to defer to agencies in the face of complex statutory schemes.
On the Major Questions Doctrine, Justice Kavanaugh referenced his own writing as a judge on the D.C. Circuit, and older cases such as the Benzene decision, and argued the doctrine embodies a common sense intuition that Congress does not "hide elephants in mouseholes," and has much in common with other presumptions that are routinely applied in statutory interpretation, such as the presumption against retroactivity.
Last October, I wondered whether Yale Law School, which experienced a series of scandals relating to free speech last year, might be turning over a new leaf. The YLS administration announced several concrete steps to protect speech and improve its intellectual climate, and there were early indications that they were bearing fruit—or that things were at least settling down at 127 Wall Street. For example, leading Supreme Court advocate Kannon Shanmugam came to give his traditional SCOTUS Term Preview to the Yale Federalist Society, and he was not protested—unlike the year before, when he faced 70 vocal protesters.
But Shanmugam, one of the nicest and most reasonable people you'll ever meet, is not exactly a lightning rod, and he was protested mainly because his law firm, Paul, Weiss, represents ExxonMobil. A much better test for whether things have truly changed at Yale would be to host an event with the Queen of Darkness herself: Kristen Waggoner, the CEO, president, and general counsel of the Alliance Defending Freedom ("ADF"), the conservative Christian advocacy group that is loathed by the legal left for its stances on LGBTQ issues, among other things. When Waggoner spoke at Yale last March, all hell broke loose: more than 100 angry protesters attempted to shout down the event, and although they didn't succeed in shutting it down, they did disrupt it significantly.
Last September, I suggested that Yale Law School should bring back Kristen Waggoner, arguing that "if Waggoner could return to 127 Wall Street and not have to leave the building with a police escort—or even leave having had a pleasant experience—that would go a long way toward showing an improved intellectual environment at Yale." And it looks like someone heeded my suggestion.
This past Tuesday, January 24, Kristen Waggoner returned to Yale Law, this time to discuss 303 Creative LLC v. Elenis, which she argued before the Supreme Court in December. Waggoner's client in 303 Creative is a Colorado website designer who doesn't want to design websites for same-sex weddings, and the case presents the following question: "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment."
303 Creative is one of the most interesting, important, and high-profile cases of the current Term, so it's obvious why a law student group might want to host an event with one of the lawyers who argued it. In other words, I don't consider the invitation to Waggoner to be "trolling" by the Yale Federalist Society, i.e., something done for the sole purpose of antagonizing the left.
In addition, Yale FedSoc arranged for Waggoner to be joined by two other speakers: Professor Nadine Strossen of New York Law School, who served as president of the American Civil Liberties Union from 1991 to 2008, and Professor Robert Post of Yale Law School, which he led as Dean from 2009 to 2017. Professors Post and Strossen are two of the nation's leading scholars of the First Amendment, so an event featuring them plus Kristen Waggoner is impressive. Given my longstanding interest in the First Amendment and free speech, I would have wanted to attend myself, had it been open to the public.
So how did Tuesday's YLS event with Kristen Waggoner go? In a word, swimmingly—which might surprise or even shock people who are used to associating the words "Yale Law School" with "free-speech debacle." …
It is hard to know when to get excited about bills introduced in state legislatures. There is a lot of performative stuff with no chance of passage that nonetheless can get a lot of attention from activists and the press. When the House majority leader of a state legislature introduces a bill, however, I think you have to take that seriously. And the majority leader in North Dakota is now pushing a doozy of a bill.
North Dakota's House majority leader has introduced legislation that would let presidents of at least two colleges, Dickinson State University and Bismarck State College, fire tenured faculty members based on those presidents' own, unappealable reviews.
3. If a president determines a tenured faculty member has failed to comply with a duty or responsibility of tenure, the president may not renew the contract of the tenured faculty member, unless the president specifically articulates why it is in the interest of the institution to continue to employ the faculty member despite the faculty member's failure to comply with the duties and responsibilities of tenure.
4. The president of an institution may enlist the assistance of an administrator at the institution to conduct a review but may not delegate responsibility for the review to a faculty member who is not an administrator.
. . . .
6. A review under this section is not appealable or reviewable by a faculty member or faculty committee. . . .
Apparently the design of this bill is motivated specifically by the fact that post-tenure review systems adopted at many state universities do not result in enough fired professors.
The world of American higher education may look very different in a few years.
Florida Governor Ron DeSantis has been hammering away on higher education in Florida. He clearly sees this as a winning electoral issue as he prepares himself for the Republican presidential primary, and he is no doubt right that there is a lot of conservative anger out there (some (much?) of it justified) about the state of American higher education.
The way he has approached the issue is cause for alarm, however, for those who care about academic freedom. I have a new piece over in The Dispatch on the various moves to date in Florida.
From the piece:
DeSantis has adopted a machine gun approach to conservative complaints about higher education, spraying bullets everywhere in the hopes that some might hit the target, without worrying too much about collateral damage. Given the rush of activity, mixed motives, and heated rhetoric, it is also not surprising that his critics have not always been too careful about distinguishing between genuine threats to academic freedom and mere policy disagreements. Nonetheless, the risk to free inquiry at Florida state universities under DeSantis is a real one.
Also I'm on the latest episode of The Remnant with Jonah Goldberg talking about Hamline, Florida, and the general state of free inquiry in higher education.
Flash back to 2013. New firms began to use machine-language to mine trends and insights from legal databases. Their output looked an awful lot like legal advice, even if it was generated by algorithms. At the time, I worried that these firms may inadvertently run afoul of laws barring the unauthorized practice of law (UPL). Over lunch, I warned an executive of one of the leading firms about these risks. He acknowledged my concern, and said he would have a memo prepared. Who knows what came of it. I sketched some of these concerns in a short article titled Robot, Esq., a book chapter, and in a post titled, "The Looming Ethical Issues for Legal Analytics." Here is a snippet:
The fourth issue, and the other elephant in the room, is Unauthorized Practice of Law (UPL). Reading graphs to offer advice on how a case should settle, or where it should transfer to, is at its heart the practice of law. That an algorithm spit it out doesn't really matter. Non-lawyers, or even lawyers not working for a law firm, are unable to give this type of advice. Data analytics firms should tread carefully about handing out this type of personalized advice outside the context of the attorney client relationship.
Though, for the time being, I'm not too worried about this final issue The vast majority of the UPL problems are obviated when a law firm, or a general counsel, serves as an intermediary between a data analytics firm, and a client (non-lawyer). As long as a lawyer somewhere in the pipeline independently reviews the data analytics recommendations, and blesses it, I don't see any of these as significant problems (though bad advice may result in a malpractice suit). I'm working on another paper that analyzes the law of paralegals (this is actually a thing), and what kind of legal tasks can be delegated to paralegals under the supervision of a lawyer.
But, when data analytics firms try to expand to serve consumers directly–like LegalZoom–we hit this problem hard. When there is no lawyer in the pipeline, things get difficult very quickly.
Flash forward to the present day. ChatGPT and other similar AI tools directly help pro-se litigants litigate. Consider the best-laid plans of Joshua Browder, who created a system to challenge traffic tickets.
A British man who planned to have a "robot lawyer" help a defendant fight a traffic ticket has dropped the effort after receiving threats of possible prosecution and jail time.
Joshua Browder, the CEO of the New York-based startup DoNotPay, created a way for people contesting traffic tickets to use arguments in court generated by artificial intelligence.
Here's how it was supposed to work: The person challenging a speeding ticket would wearsmart glasses that both record court proceedings and dictate responses into the defendant's ear from a small speaker. The system was powered by a few leading AI text generators, including ChatGPT and DaVinci.
The first-ever AI-powered legal defense was set to take place in California on Feb. 22, but not anymore.
This strategy would not go well. Apparently, Browder was threatened with UPL.
As word got out, an uneasy buzz began to swirl among various state bar officials, according to Browder. He says angry letters began to pour in.
"Multiple state bar associations have threatened us," Browder said. "One even said a referral to the district attorney's office and prosecution and prison time would be possible."
In particular, Browder said one state bar official noted that the unauthorized practice of law is a misdemeanor in some states punishable up to six months in county jail.
Lawyers are very good at using cartels to clamp down on competition. Legal tech firms, beware.
The confusion surrounding Title IX is exacerbated by the use of phrases that have disparate meanings inside and outside Title IX's application to sports. We saw a bit of this yesterday, in the regulations and interpretations. The regulations require "equal athletic opportunity." Normally, we understand the phrase "equal opportunity" to be synonymous with nondiscrimination, a rule precluding the consideration of a prohibited criteria. Think "Equal Employment Opportunity," for example. But in Title IX and sports, "equal opportunity" has come to mean something quite different.
The contrast between the two kinds of equal opportunity can be seen in cases involving women seeking to participate on a "male" football or wrestling team, where the school has no female teams for those sports. Because Title IX regulations specifically permit schools receiving federal funds to have teams for only one sex in "contact sports," the plaintiffs in these cases generally sue under the Equal Protection Clause if the school is state-operated. And they usually win. Further, the courts usually emphasize that the plaintiff is not seeking legal entitlement to a position on the team, but only an "opportunity" to try out. In one case, a district court in Kansas, after rejecting the plaintiff's Title IX claim, and then ultimately granting a preliminary injunction on her Equal Protection claim, noted that Title IX defined "equal opportunity" in a way substantively different from the definition of "equal protection." It was right. Just read Judge Lagoa's concurrence on Title IX and sports in the Eleventh Circuit's recent en banc opinion in Adams v. School Bd. of St. John's County, where she repeatedly asserts that allowing trans females to compete on female sports teams would deprive females of "equal opportunity" under Title IX.
Indeed, nominally-male football and wrestling teams at state schools are, in fact, open teams because females have a constitutional right to try out for them (if there is no female team in the sport). The same holds true for schools (private or public) receiving federal funds if they have male-only golf or tennis teams. Is every slot on those teams an "opportunity" for women? Not In the language of Title IX regulations as applied to sports; a female has an "opportunity" only if she makes the team.
The cases have done nothing to clear things up. Quite the contrary.
This decision (Hoeg v.Newsom, decided by Judge William Shubb) reaches a result different from that reached four weeks ago in McDonald v. Lawson. I'm on the run, but hope to blog more about this later.
UPDATE: Here's the heart of the opinion, which preliminarily enjoins the operation of the law, as to plaintiffs and their members, on the grounds that the law is unconstitutionally vague:
AB 2098, codified at Cal. Bus. & Prof. Code § 2270, took effect on January 1, 2023. The statute provides that "[i]t shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines."
The statute defines "misinformation" as "false information that is contradicted by contemporary scientific consensus contrary to the standard of care." The statute defines "disinformation" as "misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead."
The misinformation or disinformation must be conveyed "[by] the licensee to a patient under the licensee's care in the form of treatment or advice." Physicians and surgeons licensed by the Medical Board or the Osteopathic Board (the "Boards") are covered by the statute.
The Boards are tasked with enforcing AB 2098. The statute augments the definition of "unprofessional conduct," which is a pre-existing basis for disciplinary action by the Boards. Unprofessional conduct also includes, but is not limited to, "gross negligence," "repeated negligent acts," and "incompetence." …
"Contemporary Scientific Consensus"
[B]ased on the record before the court, it appears that the primary term at issue—"contemporary scientific consensus"—does not have an established technical meaning in the medical community. Physician plaintiffs provide declarations explaining that "scientific consensus" is a poorly defined concept. For example, Dr. Khatibi explains that there are different notions of scientific "consensus." These include "informal consensus," which refers to the general opinion of doctors, and "formal consensus," which refers to a process by which "a group of doctors with expertise in a particular topic come together to … discuss[] and debate the evidence around a topic," and "arrive at some conclusions for general patient care guidelines," which are then published. Expert declarant Dr. Verma also explains that the term "scientific consensus," as it has come to be used during the pandemic, often refers to the pronouncements of public health officials.
Venezuelans fleeing the socialist regime of Nicolas Maduro.
The Biden Administration recently adapted the approach used by the successful Uniting for Ukraine private migrant sponsorship program to include a combined total of up to 30,000 migrants per month from four Latin American countries: Cuba, Venezuela, Nicaragua, and Haiti. Under these programs, migrants fleeing war, oppression, poverty, and violence in these countries can quickly gain legal entry into the United States and the right to live and work here for up to two years, if they have a private sponsor in the US who commits to supporting them.
Yesterday, twenty GOP-controlled states filed a lawsuit challenging the legality of the program for the four Latin American nations (though not Uniting for Ukraine). They claim the program lacks proper congressional authorization, and that it needed to go through the "notice and comment" procedure of the Administrative Procedure Act (APA). Ironically, the flaws in the lawsuit are highlighted by the plaintiff state governors' own statements about the evils of socialism and the urgent need to address the crisis at the southern border.
The legal basis for these private sponsorship programs is a 1952 law that gives the attorney general the power to use "parole" to grant foreign citizens temporary residency rights in the US, "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." Are there "urgent humanitarian reasons" to grant entry to migrants fleeing these four Latin American nations? Most definitely! But don't take my word for it. Take that of the governors of several of the states that filed this lawsuit.
Three of the four nations included in the program are ruled by oppressive socialist dictators, whose policies have created horrific conditions. Few have put it better than Florida Governor Ron DeSantis, whose state is one of the participants in lawsuit. As he said last year, Venezuela's socialist president Nicolas Maduro is a "murderous tyrant" who "is responsible for countless atrocities and has driven Venezuela into the ground." DeSantis went on to say that "people [in Venezuela] are "really hurting,"due to the government's policies. It is indeed true that Venezuelan socialism has resulted in widespread oppression, poverty, and hyperinflation, leading to the biggest refugee crisis in the history of the Western hemisphere, with some 6 million people fleeing. Texas Governor Greg Abbott, whose state is spearheading the lawsuit, has also noted the severe economic crisis in Venezuela, which he (rightly) blames on socialism.
In 2021, DeSantis signed a law requiring Florida public schools to provide 45 minutes of instruction each year on the evils of Communist regimes, including that of Cuba, which DeSantis correctly described as responsible for "poverty, starvation, migration, systemic lethal violence, and suppression of speech." Cuba, likewise, inflicts severe poverty and oppression on its people, including recent brutal suppression of protests in July 2021. It's no accident that, before the recent Venezuela crisis, the biggest refugee flow in the history of the Western Hemisphere was that of people fleeing Cuban communism in the 1960s and 70s. Many would like to flee today, as well.
Nicaragua under the increasingly authoritarian socialist rule of Daniel Ortega is a similar story. Ortega's repression has deepened already severe poverty, and created what even the left-leaning BBC describes as an "atmosphere of terror." That's why many Nicaraguans have sought to flee. As one Nicaraguan human rights activist puts it, conditions are so bad that "[t]hey'd rather die than return to Nicaragua."
I don't know about you. But it sure sounds to me like there are "urgent humanitarian reasons" for Cubans, Venezuelans, and Nicaraguans to seek refuge in the US. And few understand that better than the people bringing the lawsuit seeking to prevent them from getting it. Abbott, DeSantis, and other GOP governors have repeatedly denounced both the evils of socialism generally, and those of the Cuban, Venezuelan, and Nicaraguan governments specifically.
But perhaps they have somehow forgotten these things. If so, DeSantis should invite his fellow GOP governors to sit in on one of the 45-minute classes on the evils of communism, established under the law he signed last year. Their support of this lawsuit indicates they might need a refresher course on the subject!
Haiti, the one nation with a non-socialist government included in the program, has long been one of the poorest and most dysfunctional societies in the world. Over the last year, conditions have gotten even worse, with intensifying violence and shortages of basic necessities. It's hard to deny that Haitians, too, have "urgent humanitarian reasons" to seek refuge.
In addition to humanitarian reasons, the law also allows the attorney general to grant parole when there is a "significant public benefit" in doing so. In this case, the significant benefit is alleviating what Republican governors constantly claim is a massive crisis at the border. Just last month, Texas Gov. Abbott demanded that President Biden immediately address a "dire border crisis" caused by many thousands of migrants illegally crossing the border.
The parole policy does exactly that. Many of the migrants seeking illegal entry at the border come from the four nations covered by program. Parole would enable them to come in legally by ship or plane, and thereby bypass the border entirely, thus relieving pressure at the border, and alleviating what Abbott calls a "terrible crisis for border communities in Texas." Earlier, more limited, expansions of legal entry opportunities for Haitians and Venezuelans have already caused a substantial reduction in illegal entry by nationals of those countries. The parole program can achieve much greater progress on that front.
Unlike in the case of the evils of socialism, I find much of what GOP governors say about the border crisis unconvincing. Immigration, including that from Latin America, is far more a benefit to the US than a burden. To the extent there are humanitarian problems at the border, they are largely caused by migration restrictions that have closed off pathways to legal entry for many people fleeing terrible conditions. But the more credence you give to GOP governors' rhetoric about the scale and urgency of the border crisis, the stronger the legal rationale for Biden's parole program.
Of course, most Republicans would rather address the border situation through increasing exclusion and deportation, rather than by making legal entry easier. I think their approach is likely to fail (and has historically failed), for much the same reasons as Prohibition led to an expanded illegal trade in alcoholic beverages. But even if their strategy really is better, it still doesn't undercut the legal rationale for Biden's actions. The relevant provision of the law only requires that parole produce a "substantial public benefit," not that it be the best possible way of achieving it.
Another "significant public benefit" of the parole program is strengthening the US position in the international war of ideas against socialist authoritarians. By giving refuge to people fleeing brutal socialist governments, we send a powerful message of the superiority of our system over theirs. Conservatives used to understand this point during the days of the Cold War, which is why most supported the use of this same parole power to grant entry to Hungarian, Cuban, and Vietnamese refugees from communism, among others. Sadly, today, too many on the right prioritize nativism over opposition to socialism.
The state lawsuit also argues that the parole program is illegal because it does not engage in "case-by-case" determinations of eligibility, as required by the statute. But unless it is going to be completely arbitrary or random, case-by-case discretion must be guided by general rules. And, as a general rule, migrants from these four countries face severe oppression and privation if they are forced to return. Thus, their admission is justified by "urgent humanitarian reasons." The Supreme Court recently upheld the use of relatively broad rules under the parole power in the "Remain in Mexico" case.
I discussed the relationship between case-by-case discretion and general rules in immigration policy, in more detail in this 2016 article.
The same considerations that defeat the states' statutory argument also undercut their procedural APA claim. While notice and comment rule-making is generally required for major regulatory changes, there is a "good cause" exception for - among other things - emergencies that require urgent action. The dangers faced by migrants from the four countries are pretty obviously an emergency. Every day of delay means more suffering for them, and in many cases more exposure to violence. And if the border crisis is as bad as GOP governors say it is, it qualifies as an emergency requiring swift action, as well.
It is arguable that the private sponsorship programs - including Uniting for Ukraine - cannot be continued indefinitely without going through the notice and comment process. But, given urgent exigencies, they can at least be initiated without it.
Finally, it is telling that the GOP states have sued to terminate the private sponsorship parole program for the four Latin American countries, but not the very similar one for Ukrainians, despite the fact that the latter is the model for the former. The most obvious explanation is that Ukrainian migrants are more popular - especially among Republicans - than Latin American ones. But such politically motivated distinctions suggest the plaintiffs are motivated more by politics, rather than any supposed commitment to the rule of law. In fairness, that is a common pattern, when it comes to lawsuits filed by politicians.
Whatever the plaintiffs' motives here, it is important to recognize that, if they prevail, Uniting for Ukraine is likely to be imperiled, as well as the program they are challenging. The legal justifications for the two are close to identical. Even if the plaintiff states would prefer to spare Uniting for Ukraine, that may not preserve it against challenges by other potential litigants (though some of the latter might be blocked by standing and other procedural barriers).
In this case, as in other state challenges to immigration policies, standing is likely to be an issue. I won't go into detail on that question here, except to reiterate my longstanding view that states should have broad standing rights to challenge federal policies, even when I believe they are wrong on the merits, as in the case of Biden v. Texas, currently before the Supreme Court.
In sum, this lawsuit deserves to fail for reasons well-articulated by some of the very people who filed it.
UPDATE: Cato Institute immigration policy expert David Bier makes some related points about the legal justification for the use of parole in this case, here.
There are already two ways of getting our posts in your mailbox:
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But we're also wondering whether we should have an option to get our posts delivered as they appear through regular e-mail. Would anyone find that useful? Or would you prefer reading it on the blog, through the Volokh Daily, through the Outlook RSS delivery, or through our Twitter or Facebook feeds, all of which are already available?
I am pleased to pass along opportunities for summer fellowships.
The Institute for Free Speech is inviting applicants for a Free Speech Summer Associate Legal Fellowship:
The 2023 Institute for Free Speech Summer Associate Legal Fellowship is a unique opportunity for current law school students to explore a career in public interest and First Amendment law. The program is open to students who will finish their first or second year of law school by the summer of 2023.
Fellows are expected to work full time for ten weeks in our Washington, D.C. headquarters, but other arrangements may be available to especially outstanding candidates.
Fellows are eligible to earn $10,000 in salary for their ten weeks of employment.
During the fellowship, students will work with Institute for Free Speech attorneys for a portion of their time. Each fellow will also be expected to complete a project. Applicants are encouraged to be creative in suggesting a project as part of their application. While many projects may produce papers suitable for publication, we will consider any project related to protecting or advancing First Amendment rights.
The TFAS Summer Law Fellowship in Washington, D.C., is an intensive nine-week program that aims to prepare law students to defend the values and ideals of a free society rooted in individual liberty, limited government, free enterprise and constitutional originalism.
Through this immersive academic and professional experience, participants will engage in legal internships, academic coursework, networking events and career development sessions, as well as a law and public policy lecture series with leading constitutional scholars, judges and practicing attorneys.
Those selected to participate in the Fellowship program will receive a full scholarship covering tuition, housing and program fees. Awards are highly selective – only 25 students are selected to participate each year.
As I mentioned at the outset, one of my motivations for writing Gender Identity, Sports, and Affirmative Action: What's Title IX Got To Do With It? was trying to figure out when it became clear that schools receiving federal funds could not simply have one sports team for each sport for all members of their community. To answer that question, we need to examine some regulations and interpretations.
The story of the regulations is well known. After Senator John Tower unsuccessfully proposed an amendment to Title IX to exempt college basketball and football from its scope, Congress passed a statute requiring the Department of Health, Education, and Welfare to propose regulations for athletics. The regulations were promulgated in 1975. They have remained unchanged since then, and the most important ones currently appear at 34 C.F.R. § 106.41.
Did these regulations require separate sports teams? Not at first glance. Section 106.41(a) states that a recipient of federal funds shall not provide athletics separately on the basis of sex. Section 106.41(b) then immediately steps this assertion back and says recipients may provide separate sports teams if either (a) competitive skill is a criterion for selection or (b) the sport is a contact sport. (Query: Can a school receiving federal funds maintain two separate intramural tennis ladders, one for each sex?)
It gets complicated. There is a rule (athletics shall not be provided separately), an exception (separate teams are permissible under two circumstances), an exception to the exception (where there is only one team that purports to include only one sex, and the excluded sex has previously had limited opportunities, the team must be open), and then an exception to the exception to the exception (but not if the sport is a "contact sport"). Got that?
Hamline University's full-time faculty on Tuesday asked President Fayneese Miller to resign over her administration's handling of a Muslim student's complaint about an adjunct professor who showed ancient art in class that depicted the Prophet Muhammad.
Various Hamline administrators have said that what took place in an October art history class was "undeniably inconsiderate, disrespectful and Islamophobic" and "an act of intolerance." And Hamline rescinded its offer to have the adjunct professor, Erika Lopez Prater, teach again in the spring.
But after a wave of criticism from across the country, Miller conceded last week that she mishandled the episode….
The article quotes the faculty statement (passed 71-12, with 9 abstentions) as saying, in part:
From People v. VDARE Foundation, Inc., decided yesterday by New York trial court judge Sabrina Kraus:
Respondent [VDARE] is a New York charitable not-for-profit [and tax-exempt] corporation that incorporated in New York in 1999….
In its application for federal tax-exempt status, Respondent stated its plan to operate from offices in New York and listed two of its four directors at addresses in New York City. Respondent described its primary purpose as creating a publication web page and magazine, with editorial content focusing on foreign and domestic policy issues.
In 2019, Respondent reported a six-fold increase in revenue, from $700,000 in 2018 to approximately $4.3 million in 2019 and including a $1.5 million lump donation from a donor-advised fund. In early 2020, Respondent spent $1.4 million of these newly received funds on the purchase of the Berkeley Springs Castle, a medieval-style castle located in West Virginia.
Public postings by Respondent Chairman Peter Brimelow and others indicate that he and his family have used the castle as their primary residence since at least March 2020. During this same period, Respondent also substantially increased payments to Brimelow and to third-party, for-profit companies he controls. In 2019, Brimelow's reported salary more than doubled and comprised roughly one third of Respondent's operating expenditures. Respondent separately reported spending tens of thousands of dollars on office expenses in 2019, as well as paying hundreds of thousands of dollars to a third-party LLC controlled by Brimelow that was based at Brimelow's residential home address.
Like the Sixth Circuit before it, the Eleventh ruled that the requirement that states receiving stimulus money refrain from cutting taxes was never clearly authorized by Congress.
On January 20, in West Virginia v. Department of Treasury, the US Court of Appeals for the Eleventh Circuit became the second federal appellate court to rule that the "tax mandate" provision of the 2021 Covid stimulus bill (officially called the American Rescue Plan Act) is unconstitutional, because it doesn't clearly state the condition states are subject to.
ARPA gave hundreds of billions of dollars in grants to state governments. But states that accept the money must obey various conditions, including the tax mandate requirement, which bars states from using the grant money "to either directly or indirectly offset a reduction in [their] net tax revenue" that results from a change in law that "reduces any tax" between the time ARPA was enacted and December 31, 2024.
Longstanding Supreme Court precedent in cases such as Pennhurst v. Halderman (1981), and South Dakota v. Dole (1987) states that if the federal government imposes conditions on grants to state governments, it must do so "unambiguously" in a statute enacted by Congress. Courts take this rule seriously. Just ask the Trump Administration, which suffered repeated defeats in its efforts to use spending grant conditions to pressure sanctuary cities into doing its bidding. Courts repeatedly ruled against Trump because the conditions he sought to impose on state and local government recipients of various federal grants were not clearly authorized by Congress.
When the tax mandate was enacted, I predicted that it could well suffer the same fate, because the Biden Administration could not make its requirements clear without creating rules that were never unambiguously authorized by Congress.
That's exactly what the Eleventh Circuit ruled in West Virginia, a lawsuit challenging the tax mandate brought by thirteen Republican-controlled state governments. Upholding a district court ruling against the mandate, the court found three major ambiguities in the statute:
[T]he Rescue Plan's offset provision forbids states from using recovery funds "to either directly or indirectly offset a reduction in [their] net tax revenue . . . resulting from a change in law, regulation, or administrative interpretation . . . that reduces any tax." 42 U.S.C. § 802(c)(2)(A). Certain parts of this provision are clear enough…..
But there are three aspects of the Rescue Plan that give us pause. We do not address whether any of these aspects would independently violate the Spending Clause. But, when combined, we believe these three aspects of the Rescue Plan are inconsistent with the constitutional imperative that Congress's funding conditions be ascertainable.
First and most importantly, the offset provision does not provide a standard against which a state can assess whether it will reduce or has reduced net tax revenue. The prohibition on any "reduction in the net tax revenue" presupposes a baseline against which to measure a potential reduction. Reduced as compared to what? The Rescue Plan does not offer a baseline….
Second, the Rescue Plan's prohibition against "either directly or indirectly offset[ting]" net tax reductions with recovery funds exacerbates this ascertainability problem…. Even if we accept that everyone understands what constitutes a "direct" offset, Section 802 does not explain what constitutes an "indirect" offset. The Secretary [of the Treasury's] illustrations of the difference between "direct" and "indirect" offsets fail to clear this fog…. [B]ecause money is fungible, the Secretary could always assert a plausible argument that a state, after a tax cut, committed an unlawful indirect offset of the attendant revenue shortfall.….
Third, we think the Rescue Plan's novelty and scope compound these problems. Though "[l]egislative novelty is not necessarily fatal," it raises a red flag. NFIB, 567 U.S. at 549 (opinion of Roberts, C.J.). Indeed, "lack of historical precedent" often signals a "severe constitutional problem." Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010)…. And we cannot ignore that Congress has aimed this novel restriction at each state's entire budget and every single one of its taxes. The States face billions of dollars in potential recoupment actions and must ensure that every tax and tax rate comply with this condition.…. The Rescue Plan's novelty and scope make it even more important that Congress speak with a clear voice.
I am not convinced that novelty should play any significant role in the analysis. A novel but clear condition can still be properly unambiguous, and novelty doesn't necessarily make a condition more ambiguous than it would be otherwise. But the court's first two points are sound. And the ruling is also right to note that the ambiguity is exacerbated by the enormous scope of the mandate.
The Eleventh Circuit ruling on this point is similar to that of the Sixth Circuit in Kentucky v. Yellen, a decision on the tax mandate issued in November. For those keeping score, all three judges who joined the Eleventh Circuit decision were Republican appointees. But one of the members of the Sixth Circuit panel was Judge Bernice Donald, a liberal Obama appointee.
So far, none of the nine judges who have ruled on the merits of the tax mandate issue (six circuit judges and three district court judges, including one in Ohio whose ruling was later overturned on procedural grounds) have voted to uphold its legality. That's not a great track record for the Biden Administration!
However, the Sixth and Eighth Circuits did dismiss some state lawsuits against the mandate on procedural grounds of mootness and standing. I won't go into these issues in detail. But it seems to me the Eleventh Circuit was clearly right to rule that a state that accepted ARPA grants and recently cut taxes or plans to do so before the end of 2024 clearly has standing to raise the ambiguity issue.
The judicial unanimity on the merits reduces the likelihood this question will get to the Supreme Court. But perhaps the justices will want to take the issue anyway to clarify the standing questions, and also to ensure there is a uniform nationwide resolution.
In the meantime, the Sixth and Eleventh Circuit rulings have between them blocked enforcement of the tax mandate against a total of fourteen states. Other states who want to defy the mandate now know they have a good chance of prevailing on the merits if they challenge it.
In addition to the ambiguity issue, the states in these cases also argue that the tax mandate is unconstitutionally "coercive." This is a tougher issue than the other, and the two appellate courts have largely avoided reaching it, because the cases could be resolved in favor of the states without it. The same goes for claims that the mandate violates the Tenth Amendment.
Finally, as I pointed out in my very first post on this issue, there is a good deal of political hypocrisy here on the part of the various litigants. But that doesn't change the merits of the cases:
More generally, Ohio and other red states objecting to the ARPA tax condition seem happy to get federal funds, so long as there are no unpleasant conditions attached. Given the generally modest impact of the Covid crisis on the fiscal condition of most states, it would be better to do away with the ARPA grants entirely. A giant handout for states, regardless of any real need, promotes dependency and creates incentives for future profligacy….
Be that as it may, the ignoble motives of many of the politicians involved don't change the constitutional issue. The tax condition likely violates the requirement that federal grant requirements must be "unambiguous." There is also a solid—though much less conclusive—argument that it is "coercive."
Breaking news! Classified documents were found in the home of former Vice President Pence. These documents were discovered by Pence's own teams. But, if the Biden experience has taught us anything, a search by the FBI may turn up more documents.
So what is Merrick Garland to do? Mike Pence very likely may be a presidential candidate for 2024--a candidate who will run against Trump, and potentially Biden. And we know that Garland waited for Trump to announce before appointing a special counsel. Does Garland appoint yet another special counsel to investigate Pence now? Does Garland wait till Pence announces? What a mess.
I highly recommend Jack Goldsmith's guest essay in the Times today. He explains the potential coordination problems between the two current special counsels.
Even if the Trump and Biden investigations turn out to be factually and legally quite different, as it seems they might, the dual special counsel structure will make it hard for the department to portray its decisions as principled. Normally in such prominent side-by-side investigations, an official reporting to the attorney general would ensure that the same legal and discretionary judgments informed decision-making in the two cases. But these decisions are now delegated to the special counsels Jack Smith and Robert Hur, who do not have the incentives or even the mechanism to coordinate their decision making.
Mr. Hur and Mr. Smith will take many public steps along their investigative paths, including a final decision about the presence of any potential criminality and what, if anything, to do about it. These decisions will invariably raise questions about disparate treatment. Yet neither special counsel will be in a position to explain how his decisions are consistent with the other's. Nor can the attorney general obviously do so, since the key decisions are formally out of his control so long as they stay within broad department guidelines. If Mr. Garland does end up defending the coherence of the decisions, some might question the degree to which the special counsels were actually independent.
Now, there might be a third special counsel investigation to coordinate.
