Free Minds & Free Markets

Weekly Volokh Conspiracy Archive 2019 January 1-31

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Eminent Domain, Emergency Powers, and Trump's Wall

Can Trump really exploit emergency powers to use eminent domain to build his wall without additional congressional authorization? If he succeeds, conservatives are likely to regret the precedent he sets.

Creative Commons/Tony WebsterCreative Commons/Tony Webster

President Donald Trump claims he can use an "emergency" declaration to secure funding to use eminent domain to acquire land for his border wall, even without any additional congressional authorization. The validity of this claim is dubious at best. It is far from clear that emergency powers can be used to build the wall. Even if they can, it is questionable whether that would authorize the use of eminent domain to seize private property. And if the president succeeds in using an emergency declaration for such dubious purposes, it would set a precedent that conservative Republicans are likely to have reason to regret the next time a liberal Democrat occupies the White House.

In a recent New York Times op ed, Yale Law School Prof. Bruce Ackerman outlines some reasons why it would be illegal for Trump to use an emergency declaration to build the wall:

President Trump on Friday said that he was considering the declaration of a "national emergency" along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it...

Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president's use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever "willfully uses any part of the Army or the Air Force" to execute a law domestically "shall be fined under this title or imprisoned not more than two years" — except when "expressly authorized by the Constitution or Act of Congress...."

In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in "major public emergencies." But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?

The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to "search, seize and arrest" along the Mexican border.

Gerald Dickinson of the University of Pittsburgh (probably the leading academic expert on legal issues related to eminent domain and the wall) makes similar points here. On the other hand, Ackerman's Yale colleague John Fabian Witt argues that the issues are not as clear as the former suggests:

The truth is that the White House's emergency gambit reveals the full extent of Congress's dangerous delegation of emergency powers to the executive branch of the federal government. Elizabeth Goitein of the Brennan Center has collected a daunting list of statutes authorizing emergency powers, which is super helpful on this point. (Liza summarizes the statutes in a recent article at The Atlantic.) The upshot? Declaring a national emergency to build the president's ridiculous wall would be a national embarrassment. It ought to be unlawful, too. But whether declaring a national emergency to build a wall actually is unlawful under current circumstances turns out to be much closer question than it should be. The key statutory provisions are 10 U.S.C. 2808 (authorizing emergency reallocation of certain military construction funds) and 33 U.S.C. 2293 (authorizing emergency reallocation of certain civil works project funds).

A closer look at the two laws cited by Witt suggests it is far from evident that they authorize the diversion of funds to build a border wall. Section 2808 states that, if the president declares a "national emergency" that "requires the use of the armed forces," he can use military construction funds to "undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces." It is far from clear whether any supposed emergency caused by undocumented immigration really "requires the use of the armed forces" or that a wall would be "necessary to support such use" of them. Indeed, as Ackerman points out, federal law actually forbids the use of the armed forces for domestic law enforcement within the United States (and immigration enforcement qualifies as such). Section 2293 also only applies to a declared war or emergency that "requires or may require use of the Armed Forces." Even then, it only allows diversion of funds to build "authorized civil works, military construction, and civil defense projects that are essential to the national defense" (emphasis added). In this context, "authorized" likely means "authorized" by Congress, not just by the executive branch.

It is also worth noting that nothing remotely resembling a national security "emergency" is actually occurring at the southern border, and that a border wall would do virtually nothing to protect the US against any kind of terrorism or security risk. It may well not even do much to reduce undocumented immigration.

Thus, I would tentatively conclude that Trump cannot use these provisions to appropriate funds for the construction of a border wall - even if he does declare a "national emergency." However, courts often give presidents undue deference on national security and immigration issues, and that problem could recur here. I would be lying if I said I could confidently predict the outcome of a legal battle over this issue. I should also emphasize that I am far from being an expert on the full range of dubious emergency powers Congress has delegated to the president. So it's possible I am overlooking some other possible source of wall-building authority.

Even if Trump can otherwise use an emergency declaration to transfer funds to build a border wall, it does not follow that he can seize property through the use of eminent domain. As the Supreme Court has long held, the power to use eminent domain has to be "expressly authorized" under the law. Such authorization cannot simply be assumed or inferred. None of the emergency delegations of power for construction projects discussed above "expressly" authorize the use of eminent domain for purposes that are not otherwise authorized by Congress. If it is not clear whether eminent domain is authorized or not, courts are generally required to conclude that it isn't. Congress could, of course, solve that problem by giving Trump the authorization he needs. But the whole reason why Trump is considering using an emergency declaration is because Congress refuses to do that.

Finally, as Gerald Dickinson points out in an insightful Washington Post column, under the original meaning of the Constitution, it is likely that the federal government does not even have the power to use eminent domain within states (as opposed to on federal territories) in the first place. Dickinson relies on an important Yale Law Journal article on this subject by my Volokh Conspiracy co-blogger Will Baude (I discussed the implications of Will's work on this here). As Dickinson recognizes, it is highly unlikely that the Supreme Court will overturn longstanding precedent granting the federal government that power (even if wrongly). Still, it is ironic that conservative Republicans who claim to be originalists are willing to endorse what would be a massive constitutionally dubious use of eminent domain by the federal government - one of the largest federal takings in all of American history.

As Dickinson has emphasized in previous works on this subject (see here and here), the federal government owns less than one third of the land needed to build the wall. The rest would have to be seized from numerous private owners, Native American tribes, and state governments. That is likely to be both costly and time-consuming. It would also open the door to serious abuses of the kind we have seen in many previous eminent domain cases, including those undertaken for past, much smaller border barriers, in which the Department of Homeland Security compiled an awful record of violating procedural rules and undercompensating owners.

If Trump is able to overcome legal obstacles and use an emergency declaration to secure funds for the wall without congressional authorization and use eminent domain to seize the land he needs, conservatives are likely to have good reason to regret the precedent it would set. The same powers could easily be used by the next Democratic president for purposes that the right would hate.

Consider a scenario where Elizabeth Warren wins the presidency in 2020, but Republicans in Congress refuse to allocate funds she claims are necessary to combat climate change and institute the gigantic "Green New Deal" program many progressives advocate. President Warren could then declare climate change to be a "national emergency" and start reallocating various military and civilian funds to build all kinds of "green" construction projects. She could declare that climate change is a threat to national security, and use the Army Corps of Engineers and other military agencies to participate in the project.

Indeed, the claim that climate change is a menace to national security is at least as plausible as the claim that undocumented immigrants on the Mexican border are. The Obama Administration Department of Defense even published a report on the subject in 2014. And, of course, if President Warren decides she needs to seize some private property to carry out her plans, she could cite the Trump precedent to use eminent domain for that purpose. This is just one of many ways in which liberal Democrats could exploit the sorts of powers Trump claims here. It would not be difficult to imagine others.

Both Democrats and Republicans often fail to consider the long-term effects of presidential power-grabs they support when their party occupies the White House. Many conservatives seem intent on repeating that mistake here.

Trump's Terrible Record on Property Rights

The President's recent threat to use "the military version of eminent domain" to seize property for his border wall is just the tip of a larger iceberg of policies and legal positions inimical to constitutional property rights.

Eminent Domain. Art work by Richard Weinstein (used with permission).Eminent Domain. Art work by Richard Weinstein (used with permission).President Trump's recent threat to use "the military version of eminent domain" to seize property for his border wall highlights the ways in which building the wall would harm the property rights of Americans. Less widely recognized is the fact that the wall policy is just part of a larger pattern of administration policy initiatives and legal positions that threaten property rights on multiple fronts.

Though federal law allows the federal government to use eminent domain for purposes of building military facilities, including "fortifications," there is no special "military version" of eminent domain, as such. But whether Trump tries to use this law or some other one to seize property for the wall, the fact remains that less than one third of the land he would need is currently owned by the federal government. The rest would have to be seized from private owners, Native American tribes, and state governments. That would require the forcible displacement of hundreds or even thousands of homes, businesses, and other private facilities. It would be the largest such use of eminent domain in many years. Moreover, the record of previous condemnations for border barriers shows that the Department of Homeland Security has a notorious history of violating procedural rights and shortchanging property owners on the compensation they are due under the Constitution. The same sorts of abuses are likely to recur on a larger scale if Trump gets the money to build his much more extensive wall.

During the 2016 presidential campaign, Donald Trump claimed that victims of takings have nothing to complain about because "when eminent domain is used on somebody's property, that person gets a fortune." The history of border takings - and many other condemnations - proves otherwise.

The wall is far from the only administration policy that threatens property rights, however. There are several other almost equally troubling examples.

In 2017, Attorney General Jeff Sessions reinstituted asset forfeiture policies under which the federal government colludes with state and local law enforcement to seize large amounts of property with little or nor due process, and often from people who have never been convicted of any crime or even charged with one. While Sessions is gone, the asset forfeiture policy remains, and Trump himself is a strong supporter of broad asset forfeiture authority, even threatening to "destroy" the political career of a GOP state legislator who sought to curb it.

In the aftermath of Hurricane Harvey, the US Army Corps of Engineers flooded thousands of homes and businesses in Houston, arguing that this was necessary to prevent even worse flooding elsewhere. When affected property owners sued for compensation under the Takings Clause of the Fifth Amendment, the federal government argued that no compensation is due in cases where the government floods the property "only" once - even if the flooding was done deliberately and inflicted enormous damage. If accepted by the courts, the "one free flood" rule would give the government a near-blank check to flood property (and perhaps damage or destroy it in other ways), so long as it was "just" a one-time occurrence. I don't claim that the administration should have simply conceded liability in the Hurricane Harvey cases. In some cases, it is not clear whether the plaintiffs' property was damaged by the Corps' actions, or whether it would have suffered comparable damage regardless, from natural causes. But the "one free flood" argument is an extremely dangerous and reprehensible position that goes far beyond contesting liability in individual cases where the facts are arguable.

Since Trump took office, the Supreme Court has heard two important takings cases, Murr v. Wisconsin and Knick v. Township of Scott. The administration supported the wrong position in both cases. In Murr, the Justice Department filed an amicus brief supporting a rule that will often allow government to deny compensation for takings merely because the owner of the property in question also owns another adjacent lot. While the brief was initially drafted late in the Obama administration, the Trump administration decided to proceed with it and defend it in oral argument before the Court, despite requests by conservative property rights advocates urging them to desist.

In Knick, the Justice Department's amicus brief offers a dubious and hypercomplex "Klingon forehead" argument that would preserve large parts of the 1985 Williamson County decision, a deeply problematic ruling that creates a constitutional Catch 22 for property owners seeking to file cases challenging state and local government takings in federal court [but see second update below].

The administration's decision to involve itself in these two cases is all the more telling because both involve state and local governments. The federal government could easily have stayed out of them. An administration committed to protecting property rights could, of course, have filed briefs supporting the property owners.

Arguments advocated in administration briefs in important federal court cases, especially those that reach the Supreme Court are more than just insignificant rhetorical fluff. Historically, positions taken by the Justice Department Solicitor General have often had disproportionate influence in judicial decision-making. That's why the SG often called the "tenth justice" of the Supreme Court.

There is one notable exception to the administration's otherwise troubling record on property rights: the appointment of Neil Gorsuch to the Supreme Court. Gorsuch, it turns out, is a strong critic of Kelo v. City of New London, the dubious 2005 decision in which the Supreme Court ruled that the government can take private property and transfer it to another private party in order to promote "economic development." The appointment is especially notable, given that Trump himself is a longstanding enthusiastic defender of Kelo. I suspect that Gorsuch got through in part because Trump simply did not know about his views on Kelo at the time he was appointed, and in part because the president has largely outsourced judicial selection to more conventional conservatives, most of whom do not share the president's views on this issue.

It is also likely the case that property rights were not a central focus in the administration's calculations on judicial appointments (including lower court appointees, some of whom also have good records on these issues). Brett Kavanaugh, the administration's other Supreme Court appointee, has virtually no known record on constitutional property rights issues, so it is not yet clear where he stands on them. Where the administration has made decisions on issues where property rights are a central focus of dispute, property owners have usually gotten the short of end of the stick, as the examples discussed above illustrate.

Some of the Trump administration's policies on these issues are similar to those of the Obama administration, which also had an awful record on property rights, including adopting positions so extreme that they led to multiple lopsided unanimous or near-unanimous defeats in Supreme Court takings cases. On asset forfeiture, however, Trump actually reversed an Obama policy that had strengthened protection for property owners. In any event, here, as elsewhere, Obama's poor record in this field is no excuse for Trump. The Republicans, after all, are supposed to be the party that supports property rights.

The administration's attacks on property rights may in part be a result of Trump's history of benefiting from eminent domain abuse, which is the likely origin of his support for Kelo. But the problem goes beyond his personal proclivities. It is part of a broader pattern under which the Trump-era Republican Party has gradually shifted from conservatism to nationalism, as its dominant ideology. Nationalists, like the European far-right movements whom Trump and his most committed supporters admire, generally favor extensive government intervention and control of the economy so long as the perceived beneficiaries are members of the "right" racial and ethnic groups. Thus, they are happy to downgrade property rights (and economic liberties) that might be obstacles to government control of the economy in the interests of "the nation."

Nationalists also are traditionally hostile to procedural protections for individual rights that might inhibit law enforcement or government acquisition of property supposedly needed for "national" purposes. The administration's policies on asset forfeiture and the wall obviously fit that template. The administration's stances on Knick, Murr, and the Houston flooding cases do not immediately implicate nationalist priorities. But undercutting constitutional protections for property rights in these instances can make it easier to seize or destroy property for nationalist purposes in the future.

The extent to which Trumpian nationalism consolidates and extends its control of the Republican Party remains to be seen. But the longer it lasts and the further it goes, the more the party is likely to be at best indifferent and at worst actively hostile to property rights.

NOTE: I should perhaps mention that the account of the administration's decision to oppose property rights in Murr v. Wisconsin, despite requests to the contrary by conservative property rights advocates, is based on my personal knowledge of the development of the case, in which I authored an amicus brief on behalf of nine state governments that supported the property owners. However, the views expressed in this post are purely my own and don't necessarily reflect those of my clients in that matter.

UPDATE: I have added a brief passage to this post on the importance of positions taken by the administration in federal court cases, especially those that reach the Supreme Court.

UPDATE (Jan. 16): After studying the administration's position in Knick more closely, I think it is more favorable to the property rights side than I suggest above. I may expand on that in a future post, if time permits. I will link to that post here when and if it goes up. In the meantime, I think it is proper to note this revision of my view on the case, here.

Short Circuit: A Roundup of Recent Federal Court Decisions

A blind websurfer, an accidental No Fly List designation, and a threat-inducing photocopy.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Friends, back in 2016, the Oregon engineering board fined Mats Järlström, who has a degree in electrical engineering, for calling himself an engineer. The board maintained that only licensed, board-certified engineers could call themselves "engineers" and that all the many software engineers, sound engineers, train engineers, and other folks who use the term to describe their occupation were breaking the law. Last month, a federal judge ruled that the government cannot redefine the meaning of common terms. Read more at Vice or check out Scott Adams' take on what all this means for popular cartoon engineer Dilbert.

  • Drug cartel hit squad attacks ICE agents traveling through central Mexico, an attempt to steal the agents' armored car. One agent is killed; one is seriously wounded. Mexican officials arrest members of the hit squad, including defendant (who didn't participate in attack on ICE agents). He pleads guilty in U.S. to RICO violation, among other things. District court: He gets 12 years in prison. D.C. Circuit: Could be that, in calculating his sentence, the district court considered defendant's murder of a rival cartel member (in Mexico) as relevant conduct, which it shouldn't have. Remanded for resentencing.
  • In 2017, President Trump tweeted that transgender individuals would no longer be allowed to serve in the military. (The gov't now says some can; plaintiffs say there is still a total ban.) Four district courts issued nationwide preliminary injunctions barring the military from enforcing the policy while lawsuits challenging it proceed. D.C. Circuit: One of those injunctions is now dissolved; courts should defer to military officials' "considered professional judgment."
  • Pretrial detainee at Philadelphia federal prison delivers notes between two members of drug gang (that had murdered six family members of witness against the gang). But first the detainee gives the notes to prison officials, who photocopy them. Yikes! Officials goof up; the detainee delivers a photocopy, rather than the original note, tipping off the gang. The detainee receives threats, makes officials aware of them. Nevertheless, he's placed in yard with the gang members, who beat him severely. Third Circuit: No qualified immunity for prison officials who allegedly failed to protect the detainee. But he can't sue over repeatedly being put in solitary confinement.
  • Blind websurfer sues Department of Labor's Federal Credit Union. Allegation: Credit union's website violates the Americans with Disabilities Act because it's not adapted to screenreading devices that blind people can use to navigate websites. Fourth Circuit: Regardless, this particular blind websurfer lacks standing. The credit union's services, described on its website, are available only to employees or former employees of the Department of Labor or their families. The plaintiff fits none of those criteria, so his inability to navigate the website is too abstract a harm.
  • Illinois officials sue Chicago officials over police department's use-of-force policies and practices. The parties start to negotiate a consent decree, which the local chapter of the Fraternal Order of Police condemns: It's a "potential catastrophe" that could threaten the chapter's collective bargaining agreement. Over the next year, state representatives meet with the chapter, assure it the decree won't conflict with the CBA. Surprise! That might not be true. Can the chapter now become a party to the lawsuit? Seventh Circuit: Nope. Shouldn't have waited so long to try to intervene.
  • Seventh Circuit (2017): When the state takes custody of seemingly abandoned bank accounts, the rightful owner can get their funds back, plus interest, less reasonable custodial fees. On remand, the district court says interest is available to only those property owners whose funds were earning interest when the state took them into custody. Seventh Circuit (2019): Again: A property owner is entitled to income that their property earns, which doesn't depend on what it was earning in the owner's hands before the state took custody.
  • In 2004, an FBI agent accidentally puts a Malaysian grad student on the No Fly List. (In the agent's defense, the form is not intuitive). After a decade of litigation, the gov't concedes it knew all along the student was never a threat to national security. Nevertheless, she remains barred from the country. Ninth Circuit (en banc): The gov't's conduct has been "ethically questionable." And the student's attorneys are probably entitled to more than the $450k the district court ordered the gov't to pay. Complete victory on one of the student's claims (procedural due process) doesn't preclude fees for other claims her attorneys raised (First Amendment and equal protection) that the district court didn't reach.
  • Upon receiving an anonymous tip alleging child abuse, social worker visits Colorado Springs, Colo. preschool, buttonholes 4-year-old girl, strips her, and (over child's objection) photographs her body—then falsely denies doing so when later confronted by the child's mom. An unconstitutional search under the Fourth Amendment? Maybe, says the Tenth Circuit. Or maybe not. Don't know, don't care. Qualified immunity. Dissent: The social worker "was never aware of facts that could have justified such an intrusive search of a four-year-old girl."
  • In 1970s, radical African-American activists squat in Philadelphia home; they pace around the roof with firearms and hold forth with loudspeaker, which annoys the neighbors. In 1978, during massive police operation to evict the group, an officer is shot in the back of the neck. (There is speculation the officer was hit by friendly fire.) Nine activists are convicted in his death. Two die in prison; two have been released on parole; and two more are suing over being denied parole. Eastern District of Pennsylvania: The parole board needs to turn over victim impact statements to the activists; the statements could shed light on whether the board's reasons for denying parole were arbitrary or pretextual.
  • According to sources, Russian agents placed polarizing ads on Facebook targeted at Baltimore residents in advance of the 2016 election. In response, Maryland legislators pass new campaign finance law requiring online platforms to post searchable index of data on purchasers, prices of political ads on their websites. Maryland District Court: No way the law survives strict scrutiny. Among other things, it applies to much smaller platforms than Facebook, and it won't remedy the harm it's meant to address.
  • In effort to crack down on short-term home rentals, NYC officials pass ordinance requiring Airbnb and HomeAway to turn over "breathtaking" amount of data to the authorities each month, including rental hosts' names, addresses, pricing, and advertisements—irrespective of whether there is cause to suspect a host is violating relevant health and safety laws. Southern District of New York: Could be the law violates the Fourth Amendment. No enforcing it while the suit proceeds. (More via SDNY Blog.)
  • Virginia's policy of suspending drivers' licenses for unpaid fines and fees—a policy that has resulted in hundreds of thousands of such suspensions—likely does not comport with due process, says the Western District of Virginia, as it appears drivers get insufficient notice of and opportunity to challenge suspensions. Moreover, the policy is counterproductive; if people are too poor to pay, making it harder for them to get to work harms the gov't's fiscal interests. (Last month, the governor announced plans to cease the policy.)

Over 130,000 students in Florida are able to attend the schools of their families' choice thanks to a pair of programs enacted over a decade ago. Opponents say these students must all be sent back to their assigned public schools because the programs violate the Florida Constitution's requirement that the state provide an "adequate" and "uniform" system of public education. Today, the Florida Supreme Court refused to strike down the programs, ruling that in nearly a decade of litigation, opponents never adequately preserved their constitutional arguments. The dissent: We should get to the merits anyway. The majority: No, we shouldn't. That would be "an approach that not so subtly attempts to drag politics into judicial decision making." Affirmed.

Laws Banning Organ Markets Kill Even More People than Previously Thought

New analysis finds that thousands more die every year because the law forbids purchase of the kidneys they need to survive.

Many Americans die every year because they need kidney transplants, but cannot find one in time, in large part due to federal laws banning organ sales. A recently published article finds that the number of such deaths is likely to be much greater than previous estimates indicate. It finds that over the 30 years between 1988 and 2017, an average of over 30,000 Americans have died each year, because the ban on organ sales prevented them from getting transplants in time. Here is a summary of the conclusions, recently published in the Journal of the American Society of Nephrology (based in part on this article in the same journal):

[T]he death toll from ESRD [kidney failure] s very high in large part because of the severe shortage of transplant kidneys. Roughly speaking (all variables may not occur in exactly the same year), the incidence of treated ESRD is currently, about 126,000 patients per year, but only about 31,000 (25%) are added to the waiting list for a kidney from a deceased donor.... Moreover, only 20,000 (16%) actually receive a transplant kidney, of which 14,000 (11%) are from deceased donors and 6000 (5%) are from living donors. The approximately 106,000 (84%) who do not receive a transplant are fated to live an average of 5 years on dialysis therapy before dying prematurely....

Most of the focus of concern in the transplant community has been on the 25% of patients with ESRD who are added to the kidney waiting list, particularly how many receive a transplant, die, or are removed from the list because they become too sick to transplant. Little attention has been paid to the 75% who are not added to the list. But it is common knowledge that many of these patients with ESRD would medically benefit from a transplant, and if there was no kidney shortage would be recommended for the waiting list, would be accepted by a transplant center, and would receive a transplant....

What percentage of patients with ESRD fall into this category? No one knows for certain. However, to see the full extent of the harm done by the kidney shortage and the potential benefit from ending it, let us assume that 50% of those who are diagnosed with ESRD could medically benefit from a transplant. (This assumption is consistent with the findings of Schold et al....) Thus, half of the 126,000 patients who are currently diagnosed with ESRD each year 63,000 patients might medically benefit from a transplant. However, if only 20,000 patients per year receive a transplant, the remaining 43,000 would join the growing toll of those who die prematurely because of the kidney shortage.... We can extend this grim logic from the current time bac over thepast 30 years for which we have data..... The cumulative premature death toll.... from 1988 to 2017 was a horrendous 982,000.... Additionally, if we extrapolate the trend in ESRD diagnoses and transplants over the past 10 years forward to the next 10 years, the death toll would increase by an additional 465,000.

As the authors recognize, the estimate of 982,000 premature deaths over a thirty year period is very inexact. But even if the true figure is only, say, half as high, it still represents a vast amount of unnecessary suffering that could largely be prevented simply by allowing financial compensation for organ donors, thereby increasing the supply of available kidneys to the point where it can meet the demand.

By banning organ markets, the US government and other governments with similar policies thereby cause enormous needless suffering and death. It also deprives society of the productivity of the people who die prematurely and/or spend years in kidney dialysis that could have been avoided. Obviously, not everyone will want to become a kidney donor, even if monetary compensation were available. Some would not be willing to, and others are ineligible for medical reasons. But, if the authors' figures are correct we only need some 30,000 to 40,000 additional donors per year, out of a US population of over 300 million people. That should be a very feasible goal. In addition to offering payment to living donors, we can pay potential donors in advance for the "option" of harvesting organs after they pass away, a strategy that eliminates any negative health effects on donors, since, by definition, the option can only be exercised after they have died, and have no further use for the organ themselves.

The injustice of status quo policy is more than just a matter of failing to help people in need. It is the equivalent of actively killing them. Consider a situation where Bob needs to buy food in order to keep from starving. Producers are willing to sell him what he needs at market prices, but the federal government passes a law saying that it is illegal to sell food for a profit. Bob is only allowed to acquire such food as producers are willing to give him for free. If Bob starves as a result, the government is actively culpable for his death. It cannot claim that it was merely an innocent bystander who refused to help him in his time of need. The same point applies if the government (or anyone else) uses coercion to prevent people from selling organs that ESRD patients need to live.

Unlike in the case of food, it is unlikely that ESRD patients would buy what they need directly from sellers. Most likely, the actual purchases would be done by hospitals, health insurance companies, and other specialized enterprises, which could screen them for quality and then offer them to patients (as is the case with many other types of transplants and complex medical supplies). But that does not change the morality of the situation.

There are a variety of objections to legalizing organ markets. But to validate current law, they have to be compelling enough to justify killing thousands of innocent people every year. In my view, none of the standard arguments even come close to doing so. I address some of the most common ones here:

[M]any people oppose legalizing organ markets because they believe it would lead to exploitation of the poor. But most of them have no objection to letting poor people perform much more dangerous work, such as becoming lumberjacks or NFL players. If it is wrong to allow poor people to assume the risk of selling a kidney for money, surely it is even more wrong to allow them to take much greater risks in order to increase their income.

If you believe that organ markets must be banned because they exploit the poor, you must also argue that the poor should be forbidden to take jobs as lumberjacks and football players. If you believe that such considerations justify banning participation in organ markets even by the non-poor, than we must also categorically forbid monetary compensation for football players. Indeed, the case for banning the payment of football players is actually much stronger than that for banning organ markets. Unlike the ban on organ markets, a ban on professional football would not lead to the deaths of thousands of innocent people.

Other critics believe that organ markets must be banned because it is inherently wrong to "commodify" the human body. Yet most of them have no objection to letting a wide range of people profit from organ transplants, including doctors, insurance companies, hospital administrators, medical equipment suppliers, and so on. All of these people get paid (often handsomely) for helping transfer organs from one body to another.

Perversely, the only participant in the process forbidden to profit from the "commodification" of organs is the one who provided the organ in the first place. If you believe that people should be forbidden to sell kidneys because earning a profit from organs is immoral "commodification" of the body, you must either oppose paying all the other people who currently earn money from organ transplants, or explain why they, unlike the original owner of the kidney, are not also engaged in commodification.....

The same goes for people who argue that kidney markets should be banned because earning money from transactions involving body parts will somehow corrupt our morals. If the morals of doctors, nurses, and others are not corrupted as a result of repeatedly earning a large part of their livelihood from organ transplants, it is not clear why the morality of donors will be corrupted by earning money from selling a body part on just one or a few occasions.

I criticized the "exploitation of the poor" justification for banning organ markets in somewhat greater detail here, including pointing out that it cannot justify banning organ sales by donors who are not poor. The related argument that poor patients could not afford to buy kidneys in a market is also weak. The government can, if need be, subsidize the purchase of kidneys by poor patients, just as it currently subsidizes many other kinds of medical treatment for the poor. It would be far cheaper than the massive cost of paying for kidney dialysis, to say nothing of the cost of premature death, which deprives society of useful labor and the government of tax revenue. Even if we cannot get the subsidies completely right, that surely does not justify consigning thousands of people to death, any more than the absence of perfectly structured food subsidies justifies banning food markets and thereby causing large-scale starvation.

UPDATE: I think it is more accurate to describe the first piece quoted in this post as an "article" rather than a "study" (as I did originally), since it relies on data generated by previous publications, rather than its own original data. I have made the change accordingly.

Resolved: The Supreme Court Should Overrule Qualified Immunity

A debate today with Professor Chris Walker

I am writing this post from New Orleans, home this year's Association of American Law Schools Annual Meeting. As part of that meeting, the Federalist Society is sponsoring a debate on a topic I've written about repeatedly on this page -- Resolved: The Supreme Court Should Overrule Qualified Immunity.

I'll be taking the affirmative side of the debate, and Professor Chris Walker will defend it. Professor Tara Grove will moderate. For those at the conference, it will be at noon today in the River room of the Riverside Complex. For those at home, you can watch the debate livestreamed below at noon CST.

New(ish) Lawyers in Santa Barbara Interested in Arguing a Fun First Amendment Cal. Superior Court Motion?

If you're a relatively junior lawyer in Santa Barbara, and you're interested in doing a pro bono argument in what I hope will be an interesting First Amendment motion in the Superior Court, please e-mail me at volokh at Likewise, if you have colleagues or friends who might be interested, please have them e-mail me. The motion is already drafted, but not yet filed, so whoever argues it will have a chance to review it and edit it with me.

I'm a member of the California bar, and I can drive up and argue it myself; but I've had my share of arguments, and my sense is that many junior lawyers haven't, so this could be a good opportunity for someone.

The Ever-Shifting Definition of "Assault Weapons"

The phrase has been used to promote bans on almost every type of gun.

What is an "assault weapon"? That was the question I addressed in a short article for the The Regulatory Review, at the University of Pennsylvania Law School. The Regulatory Review publishes short articles--about a thousand words--on a wide range of regulatory issues. In November, The Regulatory Review produced a nine-article series, Bringing Expertise to the Gun Debate.

My contribution was Defining "Assault Weapons". Surveying various "assault weapon" laws and bills, the article describes the always-shifting definitions. According to gun ban advocates, "assault weapons" have been claimed to include: air guns and paintball guns; most handguns; all semiautomatic rifles; most shotguns; all slide action shotguns; any semiautomatic the Secretary of Treasury wants to ban; guns listed by name; and guns with certain features, such as adjustable stocks.

The very heterogeneous group of so-called "assault weapons" has only two things in common. First of all, none of them are automatics or machine guns. Gun prohibition advocates have very effectively created and then exploited public confusion on this point. Second, none of the guns are "assault rifles," as that term has been defined by experts from the Defense Intelligence Agency. An actual assault rifle is capable of selective fire, meaning that it can fire automatically or semi-automatically with the flip of a selector switch; examples include the U.S. Army M-16, the Soviet AK-47, and the German Sturmgewehr.

In short, "Assault weapon" is just an epithet to stigmatize the largest possible number of guns and gun owners—the breadth of the definition of the moment depending on the politics of the moment.

The other articles from the Penn symposium are by Anthony Braga & Philip Cook (guns are more likely than other weapons to cause a fatality when used in a criminal attack); Robert Spitzer (the 1934 National Firearms Act is a good model for gun laws; the BATFE is underfunded and persecuted); James Jacobs (private sales of firearms should be outlawed); Joseph Blocher and Darrell A.H. Miller (scholars should contribute more to knowledge about gun policy); Jennifer Doleac (there are many effective means other than gun control to reduce gun deaths), David Abrams (data driven policy should impose heavy taxes on some guns and ammunition); Philip Cook & Jens Ludwig (gun misuse causes much economic harm); and Amanda LeSavage (the Consumer Product Safety Commission should be authorized require warning labels saying that guns make households less safe).

Article III Standing in Frank v. Gaos

Why I think there is standing: Think property, not privacy.

Some readers have followed the pending Supreme Court case of Frank v. Gaos, which involves the settlement of class actions using cy pres awards. As Will Baude explained here back in November, the Justices called for additional briefing after oral argument on whether there is Article III standing in the case. The briefs and reply briefs have now been filed, and I thought I would add my own thoughts on why think there is standing.

A confession at the outset: I am not an expert in standing doctrine. But I do know a thing or two about the cause of action in this case. It happens to involve a statute, the Stored Communications Act, that I have spent a rather absurd amount of time studying and teaching over the last two decades. Because the standing test under Spokeo hinges in part on the substantive cause of action, I thought I would explain what Congress was doing when it created this cause of action. If I'm understanding Spokeo correctly, I think that understanding provides a solid basis for Article III standing.

Here's the scoop. As I explained in this article, Congress created the SCA in 1986 to create home-like privacy protections for Internet communications. In the physical world, the law already protects your home. The Fourth Amendment requires a warrant to enter your home. And if someone comes into your house and takes your stuff away, you can sue them for the tort of conversion. But in 1986, it didn't look like those protections would apply to the computer network equivalent of your home, your personal communications such as your private e-mail. First, it wasn't at all clear in 1986 that the Fourth Amendment applied at all to e-mail. And second, e-mail service providers had total access to user e-mails, and it wasn't at all clear that there was any legal prohibition on providers taking those e-mails and sharing them with the world.

Those problems led Congress to enact the SCA with two key parts. First, Section 2702 imposes a ban on service providers voluntarily disclosing user communications unless an exception applies. Second, Section 2703 imposes a ban on the government from compelling service providers to hand over user communications without greater legal process such as a warrant. The two statutory sections are network versions of traditional legal causes of action. Section 2702 stands in the place of the traditional tort of conversion. It stops service providers from taking away your private electronic stuff just like the tort of conversion stops the superintendent of an apartment building from entering apartemnts and taking away tenants' physical stuff. Section 2703 stands in the place of traditonal Fourth Amendment law. It requires the government to get a warrant to compel a provider to fork over e-mails just like the Fourth Amendment requires a warrant for the government to enter a home.

That brings us back to Frank v. Gaos. The plaintiffs are Internet users who object to the fact that when you click on a website link, a referral header is ordinarily sent to the website you're visiting that reveals where you have been. It turns out that when you do a search, your search terms ordinarily appear in your website address. That means that when you click on a link following a search, you're ordinarily passing on the search terms that you entered to the website that you're then visiting. In this case, a class action was brought against Google on behalf of Google users claiming that Google was violating the SCA, and in particular Section 2702, by operating this way. As the plaintiffs saw it, Google was disclosing private search terms of its users in violation of the statute.

From my perspective, I have to say, this seems like an extremely weak SCA case. If I understand the claim, I don't see how it amounts to a violation of Section 2702. The communications here are the search terms in the users' browers. When users click on the links, their actions pass on the communications to the next site they are visiting. The disclosure is by the user, not the provider. Given that, I don't see how the search engine was acting as either a provider of ECS or an RCS with respect to those communications -- prerequisites for the ban in Section 2702 to apply. But that's the merits of the case, not standing, and only standing is before the Court.

On standing, the question asked by Spokeo, Inc. v. Robins is whether a plaintiff suffered an invasion of a legally-protected interest that is "concrete and particularized" so as to establish injury-in-fact. "It is instructive," Spokeo explains, "to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts."

It seems to me that the answer is yes. If you imagine that the SCA was violated, that means that the defendant committed an intangible version of the tort of conversion. For Section 2702 to have been violated, Google must have been acting like the Internet equivalent of a superindendent who entered tenants' apartments, took their property, and sent it to someone else without the tenants' permission. The alleged wrong has a close relationship to a traditional common law conversion tort.

The parties have mostly missed this because they (and some Justices at argument) seem to be thinking about this as a privacy case. They're thinking about Section 2702 as a privacy statute. And they're thinking about the cause of action as either similar to or different from a privacy tort. That raises some difficult issues, and it's not surprising that the privacy-focused approach led the Justices to want more briefing.

But I think the case is easier when you realize that Section 2702 is better understood as an intangible conversion statute, not a privacy tort statute. The SCA reflects Congress's judgment that your digital files are your stuff. Someone else can't come along and take that stuff from you. And in the digital world, taking your stuff means copying it and distributing it to someone else. It doesn't matter if the files are particularly private. It just matters that the stuff is your stuff. It's true that concepts of conversion can be an awkward fit when applied to unauthorized copying of digital information -- see this brilliant student note from 1996 for more. But the basic idea behind Congress's cause of action in Section 2702 is digital conversion of personal property.

As I understand Spokeo, that goes a long way towards establishing Article III standing. By alleging a Section 2702 violation, the plaintiffs are alleging a concrete and particular harm: Conversion of their personal property, albeit through intangible means of copying and distributing it.

Trump's Syria Withdrawal Does Nothing to Restore Constitutional Limits on Presidential War Powers

While the Syria intervention lacked proper congressional authorization, constitutional considerations had nothing to do with Trump's withdrawal decision. Indeed, his administration has doubled down on Obama-era arguments asserting broad presidential authority to initiate military interventions.

A Tomahawk missile of the type used in Trump's two strikes against Syria.A Tomahawk missile of the type used in Trump's two strikes against Syria.

Donald Trump's recent decision to withdraw US forces from Syria has drawn praise in some quarters - including Reason's Robby Soave - for supposedly helping to restore "the rule of law." Such praise is undeserved. Trump's decision does little, if anything, to curb presidential power to initiate war without congressional authorization. Far from respecting constitutional limits on presidential warmaking, the administration has in fact doubled down on Obama-era arguments justifying broad presidential power to initiate new conflicts.

Under both Obama (e.g. here and here) and Trump, I was among those who argued that the US war against ISIS in Syria and Iraq is unconstitutional, because President Obama initiated it without the required congressional authorization, and neither he nor Trump ever got such authorization even retrospectively, during what has now been over four years of fighting. The various legal rationales that the Obama administration put forward to justify the war range from the bad to the laughable, and all would set dangerous precedents if they become generally accepted. The same goes for outside experts' efforts to prove that the war is legal, such as those of controversial legal scholar and former George W. Bush administration official John Yoo.

If Trump had acknowledged that the war is illegal and justified his decision to withdraw on that basis, he might have struck a useful blow for constitutional limits on executive power. But there is zero evidence that constitutional considerations played any role in his decision, or that this administration has any desire to shore up Congress' position as the only branch of government with the power to to authorize the initiation of war.

To the contrary, the Trump administration has gone out of its way to emphasize that they believe the president has broad power to initiate a wide range of conflicts. In April 2018, Trump's Office of Legal Counsel put out a memo defending exactly that view. As Harvard law professor Jack Goldsmith (a former Bush administration OLC head, and leading war powers expert) puts it, the memo builds on "Obama-era legal opinions" and "articulate[s] an extraordinarily broad conception of the president's authority to use military force abroad through air strikes without congressional authorization." Goldsmith also writes (correctly, in my view) that the Trump OLC opinion is "in no way surprising" - at least not to anyone familiar with the Obama administration's positions on this issue. But it should give pause to anyone who thinks Trump is somehow intent on reining in presidential war powers.

The administration's very broad interpretation of presidential power is also evident in Trump's notorious statements threatening to initiate wars with North Korea and Iran, neither of which includes even the slightest suggestion that congressional authorization might be necessary. No such recognition was evident in any follow-up statements by Trump and other administration officials, either. Finally, it's worth noting that Trump has continued the Obama-initiated intervention in Iraq and Syria for over two years (and still counting), without making any meaningful effort to secure congressional authorization for it. Indeed, he has made even less effort to get it than Obama did.

In sum, everything the administration has said and done on the subject of war powers is consistent with the view that the president has the right to start a wide range of conflicts without congressional authorization. He can also, if he wants, end them (as Trump now hopes to do with the intervention in Syria). But it's all up to him.

In this respect, Trump is continuing Obama's troubling legacy (and to some extent that of previous presidents), rather than making major innovations of his own. But we should not fool ourselves into thinking that he's making the situation any better.

The constitutional requirement that Congress must authorize the initation of war is more than just a technical legal formality. It helps ensure that no one man has the authority to take the nation to war, and increases the likelihood that any wars we do initiate will be backed by a broad political consensus, which in turn helps increase the odds of a successful outcome. The Founders wanted to deny the president the power to start wars on his own, and their reasons for doing so are, if anything, even more valid under modern conditions than they were in the eighteenth century.

If we are going to restore congressional control over war initiation, Congress itself needs to act. I suggested some possible ways to do so here, and Yale Law School Prof. Bruce Ackerman has outlined some others.

In the meantime, those who support withdrawing from Syria on policy grounds may have reason to cheer. For the reasons summarized by David French (who also recognizes the conflict is unconstitutional) here and here, I think withdrawing at this time is likely a mistake, and may well create a situation where a larger intervention will be needed in the future. Like French, I think it would have been better to secure congressional authorization for continued, but limited intervention. But whether or not Trump's Syria withdrawal is strategically wise, it does nothing to bolster constitutional limitations on presidential war powers. To the contrary, Trump and his administration have made their disrespect for such constraints abundantly clear.