Somin does not dispute my claim that sometimes, large regulatory programs are justified. But, he says, the characteristic failures of democratic governance "amount to a systematic relative advantage of the private sector that should create a presumption against state control. The problem isn't limited to one or a few specific areas of government policy." This is not, however, the sort of question that is appropriately addressed with presumptions. As I say in the book, "whether this is so in any particular case cannot be resolved without attention to the local evidence." (69) Presumptions are not a substitute for such evidence. Sometimes libertarians can supply it: we are well rid of the Civil Aeronautics Board and the pre-1980 Interstate Commerce Commission restrictions on trucking. But sometimes the evidence points the other way. . . .
The modern regulatory state is a mighty complex enterprise, and it's hard to make reliable generalizations across the whole. The most powerful case for intervention is presented by problems of externalities, positive or negative, in which if government doesn't do something it just won't get done. Libertarian presumptions, as lately deployed in the Supreme Court, have crippled the capacity of the federal government to address climate change and Covid. This is not a gain for liberty.
This comment made me think of Ronald Coase, whose work on "externalities" and transaction costs is routinely quoted, but often mischaracterized or misunderstood. Indeed, while Coase's work is often cited for the proposition that the presence of externalities (and transaction costs) justifies governmental intervention, that was not how Coase understood his own work.
As Coase wrote in the introductory essay to The Firm, the Market and the Law:
the existence of "externalities" does not imply that there is a prima facie case for government intervention, if by this statement is meant that, when we find "externalities," there is a presumption that governmental intervention (taxation or regulation) is called for rather than the other courses of action which could be taken (including inaction, the abandonment of earlier governmental action, or the facilitating of market transactions). . . .
The fact that governmental intervention also has its costs makes it very likely that most "externalities" should be allowed to continue if the value of production is to be maximized. . . . The ubiquitous nature of "externalities" suggests to me that there is a prima facie case against intervention.
And here's a little tidbit: The word "externality" never appears in Coase's eminal essay, "The Problem of Social Cost," and that was deliberate on his part, as he did not believe the term (or the concept) added much of use to the analysis.
In this action six plaintiffs assert the State of Florida has engaged in a pattern of racial discrimination—a pattern of providing lower funding for historically black universities than for traditionally white comparators. One of the six plaintiffs has moved for leave to proceed under a pseudonym. He would disclose his identity to the defendants and the court but only on condition that the identity not be publicly disclosed.
Lawsuits are public events. Under the law of the circuit, anonymity—the ability to proceed under a pseudonym—should be granted "only in those exceptional cases involving [1] matters of a highly sensitive and personal nature, [2] real danger of physical harm, or [3] where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity."
This case does not come close. The plaintiff asserts this case has generated substantial publicity and he fears retaliation if his identity is disclosed. But he has alleged nothing suggesting he has any greater basis to fear retaliation than the plaintiffs in most discrimination cases. That a case has attracted public interest is not a reason to withhold information about the case from the public.
In my post yesterday, I was under the mistaken impression that Ed Whalen had bought into the radical "Independent State Legislature Theory" that the North Carolina State Legislature was arguing for yesterday in the U.S. Supreme Court. This is also a theory that former President Donald Trump falsely claimed meant that the Republican State Legislatures of Pennsylvania, Wisconsin, Georgia, and Arizona could have used to nullify the popular vote in those States in 2020 and award their electoral votes to him.
For Ed Whelan's response to the (pre-retraction) Calabresi post, see here.
George J. Stigler, Memoirs of an Unregulated Economist, 89: "The public has good reasons for what it does, and it is the task of the social scientist to discover them, even though many find it irresistibly attractive to instead ridicule the public's behavior."
From People v. Johnson, decided today by the Colorado Court of Appeals in an opinion by Judge Lino Lipinsky, joined by Judges Rebecca Freyre and James Casebolt:
The crime of enticement of a child requires proof beyond a reasonable doubt that the defendant (1) invited, persuaded, or attempted to invite or persuade "a child under the age of fifteen years to enter any vehicle, building, room, or secluded place," (2) "with the intent to commit sexual assault or unlawful sexual contact upon said child." In this case, we consider whether the evidence that defendant, James Clayton Johnson, uttered sexually tinged words to a child who was standing on a sidewalk with her dog while he was in a vehicle was sufficient to prove that he attempted to invite or persuade the child to enter the vehicle or intended to sexually assault or engage in unlawful sexual contact with the child.
First, we hold that Johnson's words alone were insufficient to establish the "substantial step" necessary to prove that he attempted to invite or persuade the child to enter the vehicle. Thus, the words Johnson uttered did not prove the wrongful conduct element of the offense. Second, we hold that Johnson's words were also insufficient to establish that he intended to commit sexual assault or engage in unlawful sexual contact.
For these reasons, we conclude that the prosecution did not introduce sufficient evidence to prove the offense of enticement of a child and vacate Johnson's conviction.
At oral argument in the recent affirmative action cases, attorneys for the defendants argued that although they do ask applicants to check a racial/ethnic box, they do not limit their consideration of diversity just to those classifications, but also to religion, ideology, and other aspects of identity that affect viewpoint. (For example, Mr. Waxman for Harvard: "Harvard greatly values religious diversity.") That's what they tell the courts. Here, however, is how Yale Law School describes its upcoming "Diversity Homecoming:"
Please join us for Yale Law School's Diversity Homecoming, a two-day event in New Haven that fosters a dialogue on diversity among the YLS community.
The programming in New Haven, spanning Friday evening through Saturday evening, will feature remarks by Dean Heather Gerken, alumni and faculty presentations, and opportunities to engage with Yale Law School student affinity groups, including the Asian Pacific American Law Students' Association; the Black Law Students' Association; Latinx Law Students' Association; the Middle Eastern and North African Law Students' Association; the Native American Law Students' Association; and the South Asian Law Students' Association.
In a development that should surprise no one, YLS does not include religious or ideological groups in their list of student groups that contribute to diversity. Of course, Yale Law School isn't UNC or Harvard, the defendants in the case. And Yale does include the South Asian and MENA groups, for which there are no boxes on application forms. But I think we all know that Yale Law's narrow view of the sort diversity that contributes to the university experience is shared by other elite educational institutions.
A very interesting interview by David Lat (Original Jurisdiction) with Judges Lisa Branch and James Ho; here's Lat's summary:
Last week, I made my way up to Yale University for an event sponsored by the William F. Buckley Jr. Program, "Is Free Speech Dead On Campus?" It featured Judges James Ho (5th Cir.) and Lisa Branch (11th Cir.) in conversation with Professor Akhil Amar of Yale Law School, followed by a wide-ranging discussion with the (standing room only) audience.
Inspired by that event, I invited Judges Branch and Ho to participate in a written Q&A with me. They kindly accepted my invitation, allowing them to share and expand upon some of their points, and our discussion appears below. I thank them for their time, their insights, and their commitment to the cause of free speech.
Another law professor friend recently started listening to some Supreme Court oral arguments after some time away, and remarked to me that the arguments have gotten very long, and that many of the Justices have stopped letting people answer their questions. I think most people who follow the Court's arguments have noticed a similar phenomenon.
The oral argument yesterday in Moore v. Harper lasted nearly three hours and yet various Justices seemed to be in so much of a rush--or simply wanted to interrupt the advocates before they finished answering the Justices' questions--that there was no time to make some important points, even as a great deal of time was spent on issues that aren't presented . . .
. . . .at various points, both Justice Alito and Justice Gorsuch asked questions and then cut off the answer before the advocate got out even a few words, presumably because they didn't like the answers they were getting. They then declared themselves unsatisfied but moved on before giving the advocate a chance to address the particular source of dissatisfaction.
This sort of rudeness was bipartisan. Justice Sotomayor--as she has sometimes done in other arguments--insisted that an advocate give a yes or no answer to a question with respect to which the advocate's position entailed some nuance, expressing annoyance and accusing the lawyer of inconsistency when he hedged. Justice Jackson (to a lesser extent) also seems to have picked up this penchant for demanding yes-or-no answers. Maybe that approach is effective on cross-examination in a trial (although even then I think it makes the lawyer come across as a bully), but unless an advocate is being outright obstreperous, it's unbecoming in an appellate argument.
I agree with the general observation of this trend, and I agree that it is quite unbecoming. It makes Supreme Court oral arguments sound more and more like congressional hearings, where each member is really just waiting for their turn to say their piece, with the advocate or witness an incidental prop. I don't think that's been good for legislative committees and I don't think it will be good for the Court either.
To be sure, this kind of comment-instead-of-a-question has partially been a feature of Supreme Court arguments for decades. The questions have not come only from those justices who are undecided about the questions they ask. And since oral argument represents the first collective conversation at the Court about a granted case, it's natural that the Justices are partly trying to talk to one another, not just gather information about the advocate's views.
But as the questions get longer and longer, more and more speech-like, and especially as the Justices are shameless about not even letting advocates give reasonable answers, and cutting them off if they start to give potentially good or persuasive answers, the arguments slide into a bad dynamic.
I am not sure what has caused this. I have heard hypotheses including the livestreaming of arguments, the polarization of the Court and the despair of some of the Justices about ever persuading their colleagues, changing media coverage of the Court related to both, and the new hybrid/round-robin oral argument format with accompanying relaxed time limits. I have no idea. But the Court is small enough, and the Justices still collegial enough, that I would hope they could change the dynamic back if they collectively wanted to.
From Gruber v. Bruce, decided last week by Judge Waverly Crenshaw (M.D. Tenn.):
An internecine difference of opinion among academics at Tennessee Tech University ("TTU" or "Tech") led to this action … asserting First Amendment retaliation … claims. The case arose after two faculty members were disciplined by the Provost for distributing flyers on campus that labeled another faculty member a racist….
Dr. Julia Gruber is a tenured Associate Professor of German at TTU, while Mr. Andrew Smith is a tenured Instructor in the Department of English at that institution. Dr. Lori Bruce is the Provost at TTU and Vice President for Academic Affairs.
In 2021, a student chapter of Turning Point USA ("TPUSA") was established at TTU. TPUSA s is a national organization with a presence at many college campuses across the United States. It came to TTU after Gittle Sciolis, a student at the school, filed a petition to make TPUSA a student club. Ms. Sciolis has described the club as a "conservative organization for college students [and] high school students" with a mission "to spread conservative ideas." For their part, Plaintiffs believe that TPUSA is a racist organization and "national hate group" with "ties to white supremacy." Dr. Andrew Donadio …, a County Commissioner and an Assistant Professor of Nursing, serves as TPUSA's faculty advisor at TTTU.
"[T]he District wants to be able to use government resources to collect and utilize these e-mail addresses to promote and advance the particular 'community outreach' issues and positions of District (government) leaders while denying others in the community the opportunity to utilize the e-mail addresses to share differing viewpoints."
From yesterday's Wisconsin Court of Appeals decision in Gierl v. Mequon-Thiensville School Dist.(written by Presiding Judge Mark Gundrum and joined by Judges Lisa Neubauer and Shelley Grogan):
[Plaintiff Mark] Gierl's petition for a writ of mandamus states:
On June 24, 2020, the District sent out an email inviting "parents and guardians in our school community to participate in a webinar this Friday on the topic of privilege and race." The email described the webinar, titled "The Talk: A Necessary Conversation on Privilege and Race with Our Children," as including topics such as the "transitional model of change," the "spectrum of racism," the "Phenomenon of the George Floyd case" and "interventions to help become a powerful ally."
Gierl subsequently requested from the District the list of e-mail addresses to which the invitation was sent. In response, the District sent Gierl a letter indicating the invitation was sent to "all parents and staff members" of the District. The District provided the list of all staff e-mail addresses to which the invitation was sent but refused to provide the list of parent e-mail addresses, stating, "the District does not believe that there is a statute or case explicitly requiring or prohibiting disclosure of the list of parent email addresses, and as such, we have decided to respectfully decline your request for parent email addresses." …
The Court of Appeals disagreed with the school district:
I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I'd serialize my current draft article; there's still plenty of time to improve it, so I'd love to hear people's comments. Here are some responses to possible objections to my general thesis (see the Introduction for a quick summary), though you can read the whole PDF, if you prefer:
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D. Risk of "Legitimizing" Certain Perspectives
Some have argued that allowing certain speech at a law school student-organized event may wrongly "legitimize" that perspective. But, as I argued above, law schools are populated with intelligent people who understand that a student-organized event bears the imprimatur of the student group, not the law school.
Nor will allowing such speech help legitimize the event for the broader public. That some speaker gave a talk at, say, UCLA School of Law (or even Harvard or Yale) hardly gives him credibility. Law school events just aren't that big a deal.
Now if the law school invites a speaker to an event that it itself organizes, that does involve saying something about the speaker. But the law school has a great deal of control about exactly what it says.
As I suggested in Part II.D.3, the point of such events should be to invite the most thoughtful, reasoned exponents of prominent and important perspectives. Law schools can easily organize the event to make clear that they aren't saying that either side is correct, but only saying that both sides are important to listen to so one can arrive at one's own conclusion about a notoriously contentious debate.
Illustration: Lex Villena; Stephen Coburn | Dreamstime.com
In this post, I provide a long-promised round-up of developments in the litigation over Biden's massive $400 billion loan forgiveness program, other than the case the Supreme Court recently decided to hear (a lawsuit brought by six GOP-controlled state governments). For those who just want to focus on the Supreme Court case, I have gone over it and the associated lower court decisions here, here, here, here, and here. For my more general critique of the legal rationale for the loan forgiveness program - which has much in common with Donald Trump's attempt to divert funds to build his border wall - see here. For an overview of the issue of standing, which may be the main obstacle to getting courts to strike down the plan, see here.
Probably the most significant of the other cases challenging the loan forgiveness program is one brought by the conservative Job Creators Network (JCN) on behalf - somewhat ironically - of two plaintiffs who contend the program isn't generous enough. In what was likely an effort to forestall lawsuits by ensuring there are no potential plaintiffs with standing, the administration excluded from its plan borrowers whose federal student loans are held by private commercial lenders. The latter were seen as more likely to sue than other student loan servicers.
One of plaintiffs in the JCN case is among the borrowers excluded from the Biden plan as a result of this move. The other qualifies for only $10,000 in relief, as opposed to the $20,000 he would get if he were a Pell Grant recipient. They argue they have standing because administration adopted the plan without going through the "notice and comment" procedure normally required by the Administrative Procedure Act, which would have given them an opportunity to criticize their exclusion, and urge that the program be broader in scope. The plaintiffs cite precedent indicating that deprivation of a procedural right can sometimes qualify as an "injury" for standing purposes, even if that deprivation doesn't automatically lead to the loss of any material benefit.
In a ruling issued on November 10, federal District Court Judge Mark T. Pittman accepted this procedural rights standing theory. He therefore addressed the merits of the case - becoming the first judge to do so. On the merits, he concluded that the 2003 HEROES Act, the legislation the Biden Administration relies on, does not authorize the program:
The Constitution vests "all legislative powers" in Congress. This power, however, can be delegated to the executive branch. But if the executive branch seeks to use that delegated power to create a law of vast economic and political significance, it must have clear congressional authorization. If not, the executive branch unconstitutionally exercises "legislative powers" vested in Congress. In this case, the HEROES Act… doesnotprovidetheexecutivebranchclearcongressional authorization to create a $400 billion student loan forgiveness program. TheProgramisthusanunconstitutionalexerciseofCongress's legislative power and must be vacated…
Judge Pittman concludes that, under current Supreme Court precedent, the loan forgiveness program qualifies as a policy addressing a "major question" and therefore requires clear congressional authorization, which the HEROES Act doesn't grant:
The major-questions doctrine applies if an agency claims the power to make decisions of vast "economic and political significance…"Itisunclearwhatexactlyconstitutes"vasteconomic significance." But courts have generally considered an agency action to be of vast economic significance if it requires "billions of dollars in spending."King v. Burwell, 576 U.S. 473, 485 (2015). For example, the Supreme Court in Alabama Association of Realtors v. Department of Health & Human Services reasoned that an economic impact of $50 billion was of vast economic significance. 141 S. Ct. 2485, 2489 (2021). Similarly, the Fifth Circuit in BST Holdings, L.L.C v. OSHA held that $3 billion in compliance costs was enough to trigger the major-questions doctrine. 17 F. 4th 604, 617 (5th Cir. 2021). Because the Program will cost more than $400 billion—over 100 times more than the amount in BST Holdings and 20 times more than the amount in Alabama Association of Realtors—it has vast economic significance.
I am not convinced that the expenditure of even a few billion dollars is enough to qualify as a "major question." But $400 billion is surely sufficient by any plausible standard. I think Judge Pittman is also right that the HEROES Act does not provide anything approaching clear authorization for the program. I made a similar argument here.
On the basis of this reasoning, Judge Pittman issued a ruling vacating the loan forgiveness policy, thereby effectively barring its implementation nationwide (this vacatur is separate from the nationwide injunction ordered by the Eighth Circuit in the case currently before the Supreme Court).
Judge Pittman is on more questionable ground in his ruling on standing. Even if deprivation of a procedural right is potentially a sufficient injury, it's not clear that a ruling holding that the program is unconstitutional provides redress for that injury ("redressability" is one of the requirements for standing, in addition to injury and causation). Judge Pittman concedes that the HEROES Act doesn't require the use of the APA notice and comment provision, and that - therefore - there is no violation of the APA if the administration was justified in relying on the HEROES Act. If I understand him correctly, he gets around this problem by arguing that, if the court strikes down the HEROES Act rationale for the policy, the Biden administration might go back to the drawing board and try to find some other way to implement loan forgiveness, perhaps one that is subject to the APA, and therefore will give the two plaintiffs a chance to participate in the notice and comment process.
This strikes me as highly speculative. But I admit I am not expert on the highly specialized doctrine of procedural rights standing. So perhaps I'm missing something. It's worth noting that the US Court of Appeals for the Fifth Circuit recently refused to set aside the District Court order while the appellate process proceeds. That's hardly a definitive decision on the matter. But it does suggest that the three judges on the panel (including a Democratic appointee, Judge James Graves) believe there is some validity to Judge Pittman's reasoning on both standing and the merits. The Biden Administration has asked the Supreme Court to stay Judge Pittman's order, or - alternatively - to hear the case on the merits, as it has already decided to do with the case filed by the six states.
The other notable case challenging the program is that brought by the Pacific Legal Foundation on behalf of one of their own attorneys, Frank Garrison. I have previously written about this case and its standing theory here and here. As previously noted, PLF is also my wife's employer, though she is not one of the attorneys working on the case.
PLF's clever rationale for standing is that Garrison will actually lose money if he is covered by the Biden plan, because the state of Indiana (where he lives) will tax the resulting gains, but exempts from taxation loan forgiveness he will soon qualify for under another federal program (if he doesn't previously get loan forgiveness under the Biden plan).
On October 21, a US district court ruled that Garrison nonetheless lacks standing, because the real cause of his injury is not the Biden plan but Indiana's tax law. I think that ruling is dubious, for reasons described here. Since then, the US Court of Appeals for the Seventh Circuit denied Garrison's motion for a temporary injunction against the program, pending appeal, and he was also unsuccessful in an attempt to get the Supreme Court to institute such an injunction.
In addition to the causation issue, the Garrison case also faces the problem that the Biden administration has - likely in reaction to his lawsuit - created an opt-out from the loan forgiveness program. Whether that eliminates his injury is an issue currently before the Seventh Circuit. In my view, whether the opt-out solves the problem depends in large part on how costly and difficult it is to take advantage of it. That issue is before the Seventh Circuit, as well.
There have also been a number of cases dismissed by lower courts for lack of standing, because they ultimately relied on some version of the "taxpayer standing": the injury they claimed was that the vast expenditure of funds under the plan would saddle them and other taxpayers with a higher federal debt burden or other similar costs. this is in fact the biggest injury created by the plan. I think it's ridiculous that taxpayers lack standing to challenge massive potentially illegal diversions of federal funds. But that's what current Supreme Court precedent says. And the justices are unlikely to change it anytime soon. So I will not analyze these cases in detail unless the Court unexpectedly reverses the relevant precedent (which I do not expect).
Meanwhile, the Biden Administration has extended the moratorium on student loan payments (first enacted at the start of the Covid crisis) until June 30. This is not loan forgiveness (borrowers still have to repay the principal), but does free borrowers from having to pay interest during the time of the freeze. If the administration loses the loan forgiveness litigation, it may be tempted to extend the moratorium still further. At that point, there could perhaps be new litigation over whether such indefinite extensions are themselves legal.
Ultimately, for reasons I summarized here, the fate of the other cases challenging the loan forgiveness program is now tied to the one before the Supreme Court:
If the Court reaches the merits, that will effectively render the other cases irrelevant [as the Court will have decided the issue they seek to litigate]. If they refuse to do so because they conclude the plaintiffs lack standing, that makes it unlikely that anyone else can ever get standing to challenge the plan, because the plaintiffs here have a stronger rationale for standing than any others so far….
The one exception to the generalization about standing is that the newly Republican-controlled House of Representatives could potentially get standing to file a suit even if the state plaintiffs can't. See my discussion of the relevant precedent here. If the Court dismissed the six-state lawsuit on standing grounds, I would expect the GOP-controlled House to file their own lawsuit - following the precedent set by the then-Democratic-controlled House when it challenged Trump's border wall diversion, and the DC Circuit ruled they had standing to do so. Or at least I expect congressional Republicans to do so if they can get their act together and elect a Speaker of the House (which, at this point, is by no means certain).
While the Supreme Court's intervention in the Eighth Circuit case has reduced its significance, Judge Pittman's ruling could potentially serve as a partial roadmap for a Supreme Court decision on the merits. Pittman's explanation of why the major questions doctrine applies is particularly relevant, though the Court could well conclude that the HEROES Act doesn't authorize Biden's massive program, even aside from that rule.
The standing issues in the other cases challenging the loan forgiveness program are also potentially significant. Their resolution could set precedents for standing in other situations, including ones with no connection to loan forgiveness. As a longtime advocate of broad standing rights, I hope the plaintiffs prevail on standing, even their doing so no longer has much significance for the loan forgiveness issue.
Positivism seems to be having a bit of a moment. To give just one example, last month, COMPACT ran a very interesting essay on Comte's "Religion of Humanity," a nineteenth-century version of a post-Christian faith, complete with priests, a calendar, and rituals, that substituted science for God. The Religion of Humanity failed to take off, but plenty of people seem to think that a new version, a Silicon Valley inspired techno-utopianism of the "brights," may be the civil religion of the American future.
I'm skeptical. One reason is the nineteenth-century experience. Comtean rationalism failed to overcome a basic incoherence: if organized religion is bunk, why start a new one? Also, rationalism fails to respond to a longing for the transcendent that is inherent in the human condition and that has been especially powerful in America, ever since the Puritans.
At First Things today, I review a new book, The Church of Saint Thomas Paine by historian Leigh Eric Schmidt, that explores the failure of nineteenth-century American positivism. It's an interesting book--especially for me, because it recounts the story of my great-granduncle, M.M. Mangasarian, an Armenian immigrant who came to America in the 1870s, went to Princeton, and ultimately founded his own rationalist religion in Chicago. (These things happen in the best of families). Here's an excerpt:
Inspired by the French positivist Auguste Comte and the American transcendentalist Ralph Waldo Emerson, and taking the eighteenth-century freethinker Thomas Paine as a kind of patron saint, a small group of Americans attempted to found a rationalist "religion" with science as its highest authority. They started congregations in cities like New York, Chicago, and Portland; they held meetings on Sunday mornings to compete with Christian rivals; they even wrote catechisms and ran Sunday Schools to indoctrinate new members. All confidently believed they were the vanguard of a new, secular religion that would displace Christianity and promote human progress.
But the new religion failed. The congregations attracted few followers; typically, as one British humorist wrote, these were churches "of three persons, but no God." Most fizzled out or merged with larger groups like the Unitarians. Other than cranks who seemed as credulous as the believers they mocked, Americans had little interest in Comte's wedding and funeral ceremonies or the relics of secular saints. (In 1905, after a long quest, a small group of freethinkers placed something they claimed to be a piece of Thomas Paine's brain, sold to them for five pounds by an obscure London bookseller, in a monument in New Rochelle.)
Schmidt shows that rationalist congregations failed because organizers never resolved basic inconsistencies. Rationalism valued science and rejected metaphysics. Why, then, collect relics and meet weekly for thinly disguised worship services? Moreover, rationalism "made intellectual independence and the displacement of all religious authorities foundational to its platform." Paine himself had railed against organized religion, famously declaring, "my own mind is my own church." Similarly, although Emerson had prophesied a new religion with "science" for its "symbol," he insisted on individual spiritual autonomy: "I go for Churches of one." What, then, was the point of joining a new religion, even a rationalist one? People who share only a commitment to radical individualism and an opposition to religious orthodoxy are unlikely to form an enduring community.
UPDATE (by Eugene), 12/8/2022, 10:31 pm Eastern: Steve Calabresi writes,
In my post yesterday, I was under the mistaken impression that Ed Whalen had bought into the radical "Independent State Legislature Theory" that the North Carolina State Legislature was arguing for yesterday in the U.S. Supreme Court. This is also a theory that former President Donald Trump falsely claimed meant that the Republican State Legislatures of Pennsylvania, Wisconsin, Georgia, and Arizona could have used to nullify the popular vote in those States in 2020 and award their electoral votes to him.
For Ed Whelan's response to the (pre-UPDATE) Calabresi post, see here.
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Steve Calabresi sent me a rejoinder to Ed Whelan's response to Steve's recent op-ed in the Wall Street Journal. Whew! The subject is Moore v. Harper, argued today in the Supreme Court:
Donald Trump's Constitution and Moore v. Harper
By Steven Gow Calabresi
(Professor, Northwestern Pritzker School of Law; Visiting Professor, Yale Law School)
In an op-ed in the Tuesday, December 6th edition of The Wall Street Journal, I argued that each State has the power to define whatever form its state legislature should take. In Moore v. Harper, which will be argued on Wednesday, December 7th [today], and which the U.S. Supreme Court justices will vote on at their Conference on Friday, December 9th, the Court will construe Article I, Section 4, Clause 1 of the Constitution, which says "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
Ed Whelan, who is the guardian of former Justice Scalia's legacy, in National Review Online disagreed with my op-ed by arguing that a State Legislature is only the State House of Representatives and the State Senate and nothing more. In Bush v. Gore (2000), Justice Scalia famously argued that that was what the Presidential Electors Clause meant. The Presidential Electors Clause says that: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ***." Donald Trump, relying on Scalia, wanted the Republican State Legislatures of Pennsylvania, Wisconsin, Georgia, and Arizona in 2020 to award him those State's electoral votes on the ground that the public vote in those States was marred by fraud. So, there is a lot at stake in Moore v. Harper.
The flaw with Ed Whelan's and Scalia's literal, acontextual, textualism is that under the U.S. Constitution State Legislatures can be unicameral, bicameral, subject to a Governor's veto, subject to judicial review under its state supreme court, or consist, as in 26 out of 50 states, of the people of a state voting directly on an initiative or referendum. State Legislatures, today, are radically less powerful and very different from what they were in 1787, as is shown by the fact that whereas in 1787 only one state out of thirteen gave its Governor a unilateral veto power, today all fifty State Governors have some form of veto power and most States give their Governors line-item veto power, which even the President of the United States does not possess.
The only constraint that the U.S. Constitution imposes on State constitution writers is that they provide for a republican form of government. This means no theocracies, dictatorships, or hereditary oligarchies. Anything else is fair game. A state could, if it wanted to, have a parliamentary system of government, or a judiciary, as the United Kingdom did for most of its history, in which a committee of the upper house of the legislature was the State's Supreme Court.
Under Ed Whelan's and Justice Scalia's literal reading of state legislature as meaning only the State House of Representative and the State Senate, the President could not veto the admission of new States into the Union because Article IV, Section 3 says that "New States may be admitted by the Congress into this Union." Under Whelan-Scalia originalist hyper-textualism, the President could not veto laws governing the federal territories because Article IV, Section 3 also says "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
But we have never read Article IV, Section 3's reference to just the Congress as precluding a presidential veto over the admission of new states or of laws governing the territories, and it would be absurd to do so. The words "Congress" and "State Legislature" in Articles I, II, and IV refer to national and state lawmaking processes and not to particular institutions.
Article I is about the legislative power and not about exclusively either the Congress or the President whose veto is mentioned in Article I, Section 7. When Article I, Section 4 or Article II, Section 1, Clause 2 refer to State Legislatures, they are referring to the state lawmaking processes, which in a majority of the states today includes initiatives and referenda. Moore v. Harper raises a political question because under the Guarantee Clause the original Constitution textually commits to the States and not to the U.S. Supreme Court the original sovereign power to adopt whatever Republican Form of Government they happen to like. Pacific States Telephone & Telegraph Co. v. Oregon (1912); and Calder v. Bull (1798). Any ruling to the contrary would be a big Supreme Court national power grab.
As pertinent to this appeal, section 90-116(D)(2)(a) [of the Code of the Town of Redington Shores] requires vacation rental operators to provide written notice to guests prior to occupancy of all vacation rental standards "and other applicable laws, ordinances, or regulations concerning noise, public nuisance, vehicle parking, solid waste collection, and common area usage" as well as to make such information available to each guest inside the property. Section 90-116(D)(2)(b) further requires that vacation rental operators "[e]nsure compliance with all provisions of" the Town's vacation rental standards and to "promptly address and report any violations of this section or of such other law or regulation of which the responsible party knows or should know to the Town or law enforcement." …
The court noted that, under the Court's commercial advertising precedents, "regulations mandating the disclosure of 'purely factual and uncontroversial information'" are constitutional "as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." And it upheld the § 90-116(D)(2)(a) requirement that landlords inform tenants of various legal rules:
The Town's stated interest in promoting compliance with the laws and regulations governing vacation rentals suffices under any level of constitutional scrutiny, particularly in light of the minimal burden imposed upon vacation rental operators, who are simply required to pass along this information to their guests.
But the court concluded otherwise as to the requirement of reporting violations of the law "to the Town or law enforcement":
