Earlier today, the Senate overwhelmingly voted to reject President Trump's "national emergency" declaration that seeks to use emergency powers to appropriate funds to seize private property to build the president's border wall. Twelve GOP senators joined all 47 Democrats to form a strong 59-41 majority against the declaration. In February, the House of Representatives also voted to terminate the emergency declaration, with 13 Republicans joining the Democrats in opposing the president. On few if any other issues has Trump faced so much resistance within his own party.
The majority against the declaration is not large enough to override a virtually certain presidential veto, which would require a two-thirds super-majority in both the House and the Senate. But the vote might nonetheless have more than just symbolic significance, because it could potentially impact the resolution of the many lawsuits challenging the legality of Trump's declaration.
As a narrowly technical legal matter, the vote should have little or no effect. The cases ultimately come down to the meaning of the relevant statutes and constitutional provisions, which cannot be changed by a congressional vote that (if successfully vetoed by Trump) does not itself change the law. Nonetheless, today's vote could have an indirect impact. That is so for three reasons.
First, the vote reinforces the plaintiffs' argument that Trump's declaration is an attempt to undermine the separation of powers by circumventing Congress' control over the power of the purse. It makes clear that a large majority of members of Congress oppose the president's actions and do not want to allow him to spend additional funds on building the wall. GOP opponents of the declaration also emphasized the risk that it might set a dangerous precedent for presidents of both parties, a factor that might carry some weight with judges, as well:
"Declaring a national emergency to access different funds sets a dangerous new precedent," GOP Sen. Rob Portman of Ohio warned in remarks on the Senate floor ahead of the vote. "It opens the door for future presidents to implement just about any policy they want."
The senator went on to say, "a future President could seize industries ... a future President may well say that climate change is a national emergency and use emergency authorities to implement the Green New Deal," referencing a sweeping progressive policy proposal to tackle global warming.
Second, historically courts are sometimes reluctant to rule against the signature policy of the president and his party, for fear of generating a massive political backlash. The congressional vote might help allay any such concerns by further underscoring the extent to which both the wall and the emergency declaration are highly unpopular.
Finally, it is significant that the dissenting GOP senators cited constitutional concerns as a reason to oppose the president on this issue. This reinforces the point that the emergency declaration is not one of those issues on which the views of legal and political elites divide along partisan/ideological lines. A large number of conservative and libertarian legal commentators believe that that declaration is illegal, as do the vast majority of liberal ones. This state of affairs makes it far more likely that at least some conservative judges will vote to strike down the declaration. While judicial decisions certainly don't always follow the views of legal scholars and other specialists, judges do often give at least some weight to expert opinion, particularly that of experts whose judicial and political philosophies are aligned with the judges' own.
None of these factors are likely to shift the decisions of judges who already have a strong view on one side or the other of these cases. But they could potentially affect some who might be on the fence.
In my view, the declaration is illegal for reasons that hold true regardless of what the Senate did today. The National Emergency Act does not allow the president to declare an emergency over an issue that is not a sudden crisis. Even if he can declare an emergency, the relevant statutes do not authorize him to reallocate funds and seize private property to build the wall. I also object to the wall on moral and policy grounds, and decry the great harm likely to be caused by using eminent domain to take property from unwilling owners. As GOP Rep. Will Hurd explains using eminent domain to build the wall is an affront to private property rights.
I don't doubt that many of those who support Trump's declaration also have strong views that are unlikely to be shifted by today's events. The Senate's vote against the president is unlikely to have more than a marginal effect on the ultimate resolution of this issue. But if it turns out to be a close case in the minds of the judges who rule on the matter, that marginal impact could be decisive.
UPDATE: On March 25, 12:30-2 PM, I will be speaking at this panel on presidential emergency powers co-sponsored by the Cato Institute and the American Constitution Society. The event is free and open to the public.
If we're going to define the women's category in elite sport on the basis of sex, we have to be prepared to sort athletes in and out on those grounds. The Olympic Movement has a long and complicated history with this work, which has involved continually updating the approach to atypical cases so that the eligibility rule remains consistent with sport's core commitments and its evolving values. The current iteration, which rests exclusively on testosterone (T) levels, is illustrative. It represents a renewed commitment to a women's category based in female sex-linked traits and, within that framework, a new commitment to a pathway into the category for male-bodied athletes who identify as women.
Here are the specifics:
The IOC's Transgender guidelines require transgender women and girls who want to compete in the women's category to drop their T levels to below 10 nmol/l for at least a year before their first competition. (See my post on Tuesday for details about the male and the female T ranges.) It is expected that the required T levels will be revised to below 5 nmol/l.
The IAAF has taken the lead developing the eligibility regulation for 46 XY males with differences of sex development (DSDs). Athletes with DSDs are often described as "intersex" but for sport's purposes, the only relevant conditions are those affecting biological males, i.e., athletes with testes, male T levels, and functional androgen receptors. The IOC is waiting for the outcome of the Court of Arbitration for Sport's decision in the case Caster Semenya has brought challenging the regulation to align its rule with the IAAF's.
The IAAF's eligibility rule requires 46 XY males with relevant DSDs who identify or are legally identified as female to drop their T levels below 5 nmol/l for at least 6 months before entering women's competition. In other words, as I explained in the NYT last year, the IAAF's rule "limit[s] entry into women's events to athletes who have testosterone levels that are capable of being produced solely by ovaries."
Both rules permit male-bodied athletes who identify as women to compete in the women's category—they are no longer sex tested and then excluded because they are male—but they cannot enter as superwomen. Here are some useful additional facts:
5 nmol/l represents a generous reading of the outer boundary of the female range, as it captures outlier results from 46 XX females with PCOS (polycystic ovarian syndrome). The normal female range is generally described as no higher than 3 nmol/l.
The time frames in the two rules are based on evidence about how long it takes for the body to wind down the physiological advantages that account for important aspects of the performance gap between male and female athletes. For a summary of these advantages, see my post on Tuesday.
The rules are also designed to address concerns about prior iterations, including the overinclusion of 46 XY males with complete androgen insensitivity (CAIS) when eligibility was established via chromosome analysis; and unnecessary intrusiveness when eligibility was established via external examination and then via the medical standard of care / differential diagnostic for DSD.
In Sex in Sport, I argued that the eligibility rule for both transgender women and males with DSD should require all athletes competing in the women's category to have T levels in the female range. And—consistent with Martina Navratilova's position—I argued that the category should "not be open to intersex and trans athletes who had testes and testosterone in the male range through puberty, since the point of the women's category in elite sport is to provide a space free of competition from athletes with male bodies." Male puberty builds the male body in the respects that matter for sport, including the development of the secondary sex characteristics responsible for the performance gap. Winding down the physiological advantages of male T levels post puberty significantly reduces the male advantage, but it cannot erase it entirely—particularly as to its structural aspects.
Nonetheless, I agree with the IAAF and the IOC that because they are committed both to protecting the category for female-bodied athletes and to including post-pubertal male-bodied athletes who identify as women, using T levels to do this work is the best, i.e., the most accurate and least intrusive, approach. In the language of anti-discrimination law, the policy goals are important, and the means chosen to accomplish them are narrowly tailored and proportional. I testified to this effect in the Semenya case at CAS.
The rules are, of course, subject to criticism. This includes the critique Navratilova and I have made that I've just described and that's further developed in my last two posts. And it includes Semenya's and Rachel McKinnon's critique (summarized in yesterday's post) that gender of rearing and/or identity should be determinative, not biology. Finally, it includes finer points about over- and under-inclusion, and about intrusiveness and proportionality, that I don't have the space to develop further here, and so this list will have to do:
The argument that the rule is over-inclusive is that the governing bodies should but cannot (or do not try to) prove that the performance of a particular male-bodied athlete is due to their male T levels, as opposed to some other endogenous or exogenous factor(s). Generally, this argument is made with respect to male-bodied athletes who are about the same as or only slightly better than the females in the field, e.g., all of the boys and men surrounding Allyson Felix in the 400 meters figure I provided in Tuesday's post. As the detailed public analyses of Semenya's performances demonstrate, this work is not impossible, but I'll leave you to ponder the administrative burdens of such a case-by-case charge. And the categorical problem that is permitting non-elite males to compete without condition for the highest prizes in women's sport.
Arguments that the rules are under-inclusive include concerns that:
- The 10 nmol/l threshold for transgender women doesn't limit entry into the women's category only to women with T levels in the female range.
- The 6 months period for at least some categories of DSD athletes is too short.
- The IAAF's pending DSD regulation only applies to certain "restricted events"—the long sprints and middle distances—when it should apply to all events affected by the performance gap.
Arguments that the rules are intrusive and disproportionate include:
- Even if confidentiality is maintained, the rules can have the incidental effect of revealing private facts about the athlete's sex or sex traits, or triggering suspicion about those traits. This can be especially damaging when the athlete comes from a traditional society.
- The rules require athletes to alter their endocrine profiles for purposes of sport when this is not necessarily consistent with their financial, psychological, or physical best interests.
- Consent to treatment in these circumstances is not truly voluntary, which is to say it's given under a form of duress, becauseo f the athletes' desire to compete in the women's category.
Sen. Mike Lee came up with a quite reasonable bill to curb presidential discretion to declare national emergencies and make Congress more affirmatively responsible for the actions that might be pursued during such emergencies. It might not be perfect, but it would be a significant improvement to the current statutory framework, a reasonable check on presidential abuse of emergency powers, and a step toward having Congress assume its proper constitutional responsibilities. A companion bill was introduced in the House by Rep. Andy Biggs. Such a reform should have been passed long ago, but it often takes an abuse of power to generate the political will to curb power. And sometimes that isn't even enough.
In the House, Speaker Nancy Pelosi declared that there would be no vote on any such legislation. For Pelosi, as for everyone else, partisan point-scoring is more important than reclaiming congressional power. The Republicans hardly covered themselves in glory, overwhelmingly voting to support the president's emergency declaration that was obviously made in bad faith and clearly abused the discretion that Congress had entrusted to the president. Unwilling to vote to override a promised presidential veto, Republican legislators are ill-positioned to seek bipartisan support for prospective reform to advance the interests of the institution and constitutional sensibilities.
Meanwhile, in the Senate, Republican legislators abandon Lee's plan because the president won't embrace a restoration of congressional authority. The senators require the president's permission before supporting the authority of their own institution.
But Trump decided against curbing his own presidential power, GOP senators said. . . . "This president, like any other president, is not going to give up power that Congress has given him in the past. It's been there since the 1970s. Why would this president give it up?" said a Republican senator who requested anonymity to talk about internal discussions.
Apparently the Founders forgot to provide in the Constitution any mechanism by which Congress might override a presidential veto. Oh, wait!
James Madison once wrote a fantasy novel. I always liked this passage.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
You've begged for it in the comments, so here it is. With Stewart Baker off the grid at the bottom of the Grand Canyon, literally, David Kris, Maury Shenk, and Brian Egan take merciless advantage to extol the virtues of data privacy and the European Union.
Maury interviews James Griffiths, a journalist based in Hong Kong and the author of the new book, The Great Firewall of China: How to Build and Control an Alternative Version of the Internet.
In the news, David and Brian discuss last week's revelation that the NSA is considering whether it will continue to seek renewal of the of the Section 215 "call detail record" program authority when it expires in December. We plug last week's Lawfare podcast in which the national security advisor to House Minority Leader McCarthy made news when he reported that the NSA hasn't been using this program for several months. David waxes poetic on the little-known and little-used "lone wolf" authority, which is also up for renewal this year.
We explore the long lineup of politicians and government officials who are coming up with new proposals to "get tough" on large technology companies. Leading the charge is Senator Warren, who promises to roll out a plan to break up "platform utilities" – basically, large Internet companies that run their own marketplaces – if she is elected president. Not to be outdone, the current chair of the Federal Trade Commission has urged that Congress provide new authorities for the FTC to impose civil enforcement penalties on tech (and presumably other) companies that violate their data privacy commitments. And last – but never least – the French finance minister announced that he will propose a 3% tax on the revenue of the 30 largest Internet businesses in France, most of which are US companies.
In the "motherhood and apple pie" category, Maury explains French President Macron's call for the creation of a "European Agency for the Protection of Democracies" to protect elections against cyberattacks. And Brian covers a recently re-introduced bill, the Cyber Deterrence and Response Act, which would impose sanctions on "all entities and persons responsible or complicit in malicious cyber activities aimed against the United States."
If you are in London this week, you can see James Griffiths during his book tour. On March 13, he will be at the Frontline Club, and on March 14, he will be at Chatham House. You can also see him later this month at the Hong Kong Foreign Correspondents Club.
As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
Officer Matthew Minard pulled over Debra Cruise-Gulyas for speeding. He wrote her a ticket for a lesser violation, known as a non-moving violation. As she drove away, apparently ungrateful for the reduction, she made an all-too-familiar gesture at Minard with her hand and without four of her fingers showing. That did not make Minard happy. He pulled her over again and changed the ticket to a moving violation—a speeding offense and what counts as a more serious violation of Michigan law. Because Cruise-Gulyas did not break any law that would justify the second stop and at most was exercising her free speech rights, we affirm the district court's order denying Officer Minard's Civil Rule 12(c) motion for judgment on the pleadings....
With trust-busting all the rage these days, especially on the Liz Warren left, this seems like a good time to repost something I wrote fifteen years ago:
The right way to look at antitrust law is not whether economic theory suggests that particular monopolies can and will exist that can, in theory, be corrected through government action, to the benefit of both consumer welfare and economic efficiency. The real question is whether, once one establishes a regime of antitrust law, whether that regime is going to do more overall harm than good.
Sure, the antitrust authorities may identify "real" monopolists here and there. But they will also likely often misapply economic theory, or apply the wrong economic theory, and break up "monopolists" that were economically efficient and serving consumer welfare.
Meanwhile, various companies will try their darndest to persuade the antitrust authorities that their competitors are "monopolists" that should be reined in. Every time they are wrong and the authorities don't believe them, their lobbying efforts (and the contrary lobbying efforts of the alleged monopolist) are a deadweight lost. Every time they are wrong and the antitrust authorities do believe them, further damage is done to the economy (plus the dead weight lobbying losses).
Moreover, there is no reason to assume that antitrust authorities will always be pursuing the common good. Antitrust enforcement, and antitrust law itself, will develop through political mechanisms, and the authorities will be sorely tempted to punish the enemies of their political allies and reward their friends. Demagogic politicians will order their governments to go after large companies for political gain, not for sound economic reasons. Much of American antitrust law for many years was based on no economic theory whatsoever, but on general mistrust of "bigness," a desire to protect mom and pop businesses from more efficient competition, and demagoguery starting with the American king of the genre, Teddy Roosevelt. And so on.
The losses from antitrust law can be huge: the costs of rent-seeking and countering rent-seeking alone can dwarf any gains from good antitrust enforcement, and antitrust enforcement won't necessarily be good. The question, to this extent, is whether you would rather have market outcomes be governed by Wall Street or K Street. Meanwhile, the losses from monopoly are not likely to be huge. The monopolist sells at a monopoly price, and gains monopoly prents, but the product is still, after all, on the market. And the available monopoly rents should incentivize competitors try to break the monopoly.
So, in my view at least, the libertarian case for not having antitrust law is not that the market is perfectly efficient, but that regulation is worse. I'd be content to leave antitrust law to price-fixing, as the Reagan Justice Department did, but that leaves the regulatory superstructure in place, to create further mischief in the future. So abolish the Antitrust Division, reduce the FTC's functions to interstate fraud, and give it jurisdiction over price-fixing, too. And then be content with the results with an imperfect market.
As the long history of sex testing in elite sport reflects, sex segregation has been the design from the beginning. The point has always been to exclude male-bodied athletes from women's events so that females could be featured despite their relative physical disadvantages. Title IX represents a modern version of this original design, requiring schools receiving federal funds to establish separate women's teams and to set aside more or less equal funding, facilities, coaches, and competitive opportunities for their female student-athletes.
The goals of elite sport today remain consistent: to ensure the same number of spots in finals and on podiums for females as for males, both as an end unto itself and as an expressive vehicle to empower girls and women in society more generally. An identity-based eligibility standard for women's sport would do different work for those whose gender identity doesn't match their biology, but it would be category defeating.
Here's a summary of the value the women's category provides to individuals and to society:
- Individual goods include the physical, developmental, psychological, reputational, and financial rewards that result from competing and winning at the elite level. The long-term benefits are less well known but important. Per Donna de Varona of the Women's Sports Foundation and Beth Brooke-Marciniak of Ernst & Young: "Girls who play sport stay in school longer, suffer fewer health problems, enter the labor force at higher rates, and are more likely to land better jobs. They are also more likely to lead. EY research shows stunningly that 94% percent of women C-Suite executives today played sport, and over half played at a university level."
- Stakeholder goods include the political, economic, and psychological benefits that flow from close association with individual winners. Here are just a few of the women whose achievements are recognized as having produced important stakeholder value. If the category were not defined on the basis of sex, we would not know their names: Serena Williams. Aly Raisman. Brandi Chastain. Simone Manuel. Katie Ledecky. Michelle Carter. Dana Vollmer. Ibtihaj Mohammed.
- Societal goods include, from Sex in Sport, "'challenging rigid gender norms' so that girls and women gain "'opportunities to become supported, educated and empowered.'" Per de Varona and Brooke-Marciniak, "[I]nvestment in girls and sport has significant [economic] development payoffs and contributes to economic growth overall. Sport empowers women and contributes to gender equality globally."
Defining the category on the basis of sex is necessary to the attainment of these goods. As detailed in yesterday's post, "Any other option that has males and females competing together works mainly to highlight, isolate, and display male bodies and hierarchies." And from the NYT: "This may sound like hyperbole but it isn't. In competitive sport, winning and room at the top are what ultimately matter, so relative numbers are irrelevant. It doesn't matter that there are 100 females and three males in a girls' race if the three males win spots in the final or on the podium because they are males."
It is precisely because success in the elite sport space is tied to our distinct reproductive biology that, in the absence of a compromise, there is no reconciling the rights of females and the interests of society in this version of women's sport with the interests of male-bodied athletes who identify as women and their constituencies. We have to choose: Do we continue to support women's sport as a protected category, with or without a conditional right of entry for male-bodied athletes who identify as female? Or, do we abandon that project in favor of the different one that is recognizing individuals based exclusively on their gender identity?
I don't see a compelling argument for abandoning the women's category in its current form.
Doing so would have real costs—see above—which I doubt could be outweighed by the benefits thus far articulated by the other side. The most important or weighty of these benefits include respect for individual autonomy, and enhanced empathy for and equal treatment of historically marginalized people. But to me, they apply equally to females. And I don't find it useful to compete over which of us has suffered most from our respective marginalizations.
The category is also clearly lawful. Equal protection doctrine allows, and in some cases encourages, anti-subordination measures designed to empower females based on inherent (sex) differences. See RBG in VMI and also Title IX. In the human rights space, this is through the UN Convention on the Elimination of All forms of Discrimination against Women. Although there is a lot of important advocacy around developing a comparable convention for people who are intersex and transgender, there are as yet no such protections on the books. There is certainly no preemptive right to self-identify into lawfully established set asides for females. The ubiquitous "rights talk" on social media and in the popular press is, to date, just that.
Early on, the loudest arguments in support of an identity-based category came from intersex advocates who seek to convince their audience that the science around the biology of sex is the faulty product of medical imperialism and the patriarchy; that sex is impossible to define; that those who disagree with this conclusion are ignorant; and that classifying people based on the secondary sex characteristics that develop from male T levels is racist and/or inappropriately privileges a particular view of femininity. Without going too far down the rabbit hole, I tried to address these points in Sex in Sport, with a focus on the harm that deconstructing sex to the point of nonexistence would cause for females.
Their Alice in Wonderland quality is also why I appreciate Rachel McKinnon. She is refreshingly smart about sport and also honest about science. Because of this, we're now finally in a position to debate the right issues. Here she is in USA Today, making the argument the ACLU has also adopted:
We cannot have a woman legally recognized as a trans woman in society, and not be recognized that way in sport. Focusing on performance advantage is largely irrelevant because this is a rights issue. We shouldn't be worried about trans people taking over the Olympics. We should be worried about their fairness and human rights instead.
I'll close out today with these three brief reactions:
First, as I note above, the claim that the integrity of sport is subordinate to the rights of transwomen to be classified as they identify assumes rights not yet established, and doesn't otherwise resolve the conflict since it's also a rights issue for females.
Second, sport already recognizes transwomen as women and includes them in competition as such, so long as they don't enter as superwomen. (More on this tomorrow.) This qualification isn't wrong a priori, either legally or logically, i.e., transwomen aren't similarly situated to biological females in the ways that matter to the category, and sport isn't the only space where—regardless of how we identify—our reproductive biology is always relevant. See Joanna Harper's terrific work on athletic gender.
And then, welcome to my world. While we've made lots of progress towards women's equality over the last century, the notion that we might walk this earth—go for a job interview, a run in the forest, or onto the streets at night—without people taking our reproductive sex into account is foreign to every female I know. I welcome all transwomen to the club who want in, and it doesn't bother me that they might also be inconvenienced from time to time by having their reproductive biology considered, especially when it actually matters.
Third, describing performance advantage as "largely irrelevant" subordinates the integrity of sport and its legitimate, multifaceted goals to those of McKinnon's own cause, assuming the answer to what is clearly a contested issue. It also ignores that the women's category wouldn't exist as a space for transwomen to enter were it not for the sex-linked advantages males have over females. If this rationale is rejected, I don't see how or why the category survives.
Over the last few years, it has become increasingly clear that American democracy has a variety of serious flaws. Widespread public ignorance and partisan bias reduce the quality of decision-making. Growing polarization poisons public discourse and leads partisans to tolerate bad behavior by their own leaders in order to avoid giving an edge to the hated opposition. Interest group lobbies wield outsized power at the expense of the general public. And this list could easily be extended. Recently, the Newark Star Ledger held a symposium in which five leading scholars offered proposals to improve the functioning of American democracy. All are well worth considering. But, overall, I am not convinced any of them are likely to lead to major progress, and none hold as much promise as expanding opportunities for people to "vote with their feet" by limiting and decentralizing government power.
Political theorists Hélène Landemore (Yale) and Alexander Guerrero (Rutgers) argue for expanding the role of "sortition": delegating decision-making authority to small groups of randomly selected members of the general public (as is currently the case with juries). In theory, this could combine popular participation in government with greater knowledge and better deliberation than is possible in the current election process, where most voters have very little knowledge of the issues, and make little effort to consider opposing views in in an unbiased way. But i am skeptical that sortition can actually deliver on its promises, for reasons I summarized here, and more fully in Chapter 7 of my book Democracy and Political Ignorance:
Unfortunately, sortition is not nearly as good a solution to the problem of political ignorance as it might initially seem. Unless the participants study for an extremely long time, they are unlikely to become knowledgeable about more than a small fraction of the many issues addressed by the modern state. Currently, government spending accounts for almost 40% GDP, and the government also regulates a bewildering array of activities.
This problem might be alleviated by by having each body selected by sortition address only a narrow range of issues. But then there would be serious problems of coordination between them. Moreover, groups addressing one area of policy might neglect important trade-offs between that issue and others....
Another possible way to make the participants better-informed would be to have them serve for long periods of time, perhaps even years on end. But in that scenario, the participants would gradually become a kind of professional governing class and would no longer be just randomly selected ordinary people.
Juries in the civil and criminal justice systems often have difficulty understanding the points at issue in cases with broad policy implications or complex scientific evidence. These problems are likely to be even more severe if we use jury-like mechanisms to address a much wider range of policy issues.
Sortition systems are also vulnerable to manipulation in a variety of ways. The government could potentially skew the selection procedure in order to ensure that more of its supporters get selected. If, as in most proposals, the participants are expected to hear presentations about policy issues and engage in deliberation about them, there are many ways to bias the choice of presenters and the selection and framing of issues....
Even in the absence of such biases, sortition systems will face difficult trade-offs between representativeness and minimizing incentives for rational ignorance. If the group selected is small, rational ignorance is unlikely to be a problem, since each vote will have a high chance of decisiveness. But a small, randomly selected group can easily be unrepresentative...
Prominent constitutional law scholar Sanford Levinson (University of Texas) argues for making it easier to amend the Constitution, including by adopting a system of regular constitutional conventions (perhaps every 25 years), as exists in several states for revising their state constitutions. I agree with Levinson's view that the Constitution is too difficult to amend. But I would not want to make amendment too easy, either, as is the case in California and some other states, where the state constitution can be amended by a mere majority vote in a referendum. More importantly, I am less optimistic than he is that a new constitutional convention will result in an improved constitution rather than one that becomes worse than before. The same factors - ignorance, bias, polarization - that reduce the quality of ordinary political decisions, can easily infect the amendment process, especially if it becomes too easy to adopt amendments.
Derrick Darby (University of Michigan) advocates an unconditional basic income (UBI), which - as the name implies - would guarantee every American a minimal income, without any preconditions for eligibility. UBI has attracted a lot of support in recent years, including even from some libertarians, who contend that it is a superior alternative to the current welfare system. I remain skeptical, for reasons well summarized by economist Bryan Caplan. But even if UBI is a good way to combat poverty, I see little reason to believe that it would improve the quality of democratic decision-making.
Georgetown political philosopher Jason Brennan, author of the important book Against Democracy (which I reviewed here), argues for replacing our current system of "first past the post" elections with proportional representation. As he explains, PR would lead to a multiparty system in which voters would have a wider range of options than are available in the current two-party system. That, in turn, would reduce polarization by forcing supporters of opposing parties to cooperate more, as no one party would be able to dictate policy on its own. I have some sympathy with this idea, as do many others who believe both major parties have very serious flaws.
But it is important to recognize its limitations. PR systems have not prevented dangerous illiberal parties on both the right and the left from wielding a great deal of clout in various European countries, and in Israel. In some respects, PR may even make it easier for such parties to become influential, as they can make themselves vital coalition partners for more mainstream parties. In addition, a multiparty system might actually exacerbate the problem of political ignorance, by increasing the number of parties informed voters need to keep track of. It is much harder to assess five, six, or eight parties (and their potential coalitions) than two.
On balance, I think a PR system for the United States might be worth the risk. But it is not an easy call. Moreover, as Brennan recognizes, it will be extremely difficult to enact, given the near-certain opposition of the Democrats and Republicans.
All five contributions to the Star Ledger symposium are thoughtful, and well-worth reading (as are the accompanying critiques by three political scientists). But I continue to believe that the best way to mitigate the shortcomings of democracy is not by trying to reform how we vote at the ballot box, but by increasing opportunities for people to "vote with their feet" by choosing which jurisdictions they wish to live under, and making decisions in the private sector. Foot voting gives people much stronger incentives to make well-informed choices than ballot box voting does. And it also expands political freedom by enabling people to make choices that actually make a difference. We can expand foot voting opportunities by limiting and decentralizing government power, thereby increasing the range of issues left to state and local governments and to the private sector, where foot voting is feasible. There is also much we can do to reduce obstacles to mobility that artificially constrain foot voting, especially for the poor and disadvantaged.
In the near future, we are unlikely to expand foot voting as much as I would ideally like. But incremental increases in foot voting opportunities are both more feasible and more likely to work than any other reform proposals for democracy that I have seen so far.
"Felicity Huffman and Lori Loughlin among dozens charged in alleged college cheating scam."
UPDATE: The actors, of course, got more public attention than the other defendants, though on reflection I regret giving into that (despite the post title that it gave me); CNBC has the list, which includes, among others, "Gamal 'Aziz' Abdelaziz, 62, of Las Vegas, former president and executive director of Wynn Macau resort" and "Gordon Caplan, 52, of Greenwich, Conn., co-chairman of an international law firm Wilkie Farr."
An alternate headline for the post below.
I've been researching injunctions that order people not to say things about other people. Some are limited to statements that a court has found to be libelous. Some are preliminary injunctions, based on a mere finding that the plaintiff's libel case is likely to succeed on the merits. Some extend not just to allegedly libelous statements, but also to any statements that are "derogatory." And some just categorically ban all speech by the defendant about the plaintiff.
I think a lot of these injunctions violate the First Amendment (though properly crafted permanent injunctions against speech found to be libelous might be constitutional). But, beyond the substance, defendants who are challenging the injunctions are also entitled to expedited appellate review, or at least a stay of the injunction pending review. I almost never see such review asked for, likely because the precedents supporting it are so little known; so I thought I'd pass them along here.
[1.] The leading case is National Social Party of Am. v. Village of Skokie, 432 U.S. 43, 44 (1977), which holds that "If a State seeks to impose a restraint of this kind [i.e., an injunction against speech], it must provide strict procedural safeguards, including immediate appellate review." See also Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 209 (Tex. 1981); Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, J., in chambers); CBS, Inc. v. Davis, 510 U.S. 1315, 1317-18 (1994) (Blackmun, J., in chambers).
[2.] This principle applies beyond political speech, for instance to regulation of sexually oriented businesses. See, e.g., M.I.C., Ltd. v. Bedford Township, 463 U.S. 1341, 1343 (1983) (Brennan, J., in chambers); Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, 1122 (1st Cir. 1981).
[3.] And it covers injunctions in disputes between businesspeople, businesspeople and consumers, neighbors, and the like: "[A] preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review." Purucky v. Corsi, 110 N.E.3d 73 (Ohio Ct. App. 2018); Int'l Diamond Exchange Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App. 3d 667, 670 (1991).
[4.] But if you want such prompt review, you had better ask for it promptly, or your delay may lead the court to conclude that you "have effectively relinquished whatever right [you] might otherwise have had to expedited consideration." Morland v. Sprecher, 443 U.S. 709, 709-10 (1979).
I just learned this, and I was quite surprised. Chile's area is over 290,000 square miles; Ukraine, the largest country in Europe other than European Russia, has an area of under 235,000 square miles.
I just came across (on a T-shirt in an online ad, of all things) this much-retweeted item—13K retweets, 13K likes—from @existentialcoms:
"An honest, brave, compassionate human being."
"No ... I mean, how do you want to sell your labor?"
The message, I take it, is that we overemphasize what we do for a living -- to the point of labeling that "what we are" -- instead of how we behave towards others. (Checking the Twitter feed, which has a generally anti-free-market tone, supports that view.)
Now I appreciate that this is a witty way of putting the assertion, but it seems to me to miss the deeper point, which I've long framed in my mind as Getting Some Mammoth. (I've been thinking about this especially now that I have teenagers, so I wonder how they will get some mammoth themselves someday.)
Here's the problem: For my tribe to survive, we've got to go out there and kill mammoths. That's hard and dangerous work. It's not for everyone, and it's fine if you don't go on the mammoth hunt. (Indeed, maybe some tribes value the mammoth hunters a little too much, and more people go on the mammoth hunt than realy ought to.) But then you need to find something to do so people who do kill the mammoth are willing to give you some; you can call it "sell your labor," but you can also call it "pay your way."
Now you probably don't have to do that something all day every day. And there's nothing wrong with preferring, when possible, to do something that doesn't go towards Getting Some Mammoth.
Still, every week, you've got to set aside some time for Getting Some Mammoth (or, at a different stage of development or with different dietary preferences, Getting Some Potatoes), whether directly or by doing something that the mammoth-hunters will trade for. And if you want to respect yourself (and be respected by others), you shouldn't complain too much about it -- because if you think you're entitled to get some of that mammoth and you haven't either hunted it yourself or given the hunters something in exchange for it, then (in most cases) you're kind of a schmuck.
True, you can be an honest and brave human being without Getting Some Mammoth the way I describe: For instance, some brave people get mammoth by Hunting the Mammoth-Hunters instead, which I don't endorse but which is often (though not always) a brave thing to do (and can involve being "honest" in the sense of "not untruthful," though not in the sense of "an honest living").
But to be honest, brave, and compassionate -- including being compassionate to the people from whom you want to get some mammoth -- actually you do need to figure out a way to sell your labor.
Speaker of the House Nancy Pelosi has recently repeated her longstanding views regarding President Donald Trump and impeachments. Her bottom line: "I'm not for impeachment."
Impeachment is so divisive to the country that unless there's something so compelling and overwhelming and bipartisan, I don't think we should go down that path, because it divides the country. And he's just not worth it.
She directed the attention of the Democrats to the 2020 election and to the coming months of aggressive congressional oversight of the administration, or as Trump would prefer to characterize it, "presidential harassment."
Democrat Rep. Jamie Raskin countered, "The question is whether the republic is worth it and whether the public interest commands it and whether there are high crimes and misdemeanors." Raskin may eventually get his way since his sentiments are shared by many Democratic activists, but Pelosi is making some important points.
Pelosi is no doubt remembering the Clinton impeachment and how the Republicans wound up making the president into a sympathetic figure for much of the public. The political fortunes of the Democratic Party have seemingly been on the upswing since the 2016 elections, and Pelosi would prefer not to lose that momentum by getting too far ahead of public sentiment. Public support for impeachment has hardly budged over the course of Trump's presidency. The Democratic base was ready for impeachment on day one, but the advocates of impeachment have not managed to persuade many more to join that cause. Perhaps a steady diet of House oversight hearings will move the needle, but that remains to be seen. In the meantime, the Democrats can benefit from a weakened Republican incumbent.
Implicitly, Pelosi is rejecting the claim that Raskin wants to make. When Raskin says the "republic is worth it," he is asserting that the president is too dangerous to leave in power until 2021. When Pelosi says "he's just not worth it," she is implicitly saying that Trump in fact poses no real dangers to the republic. There is no crisis. There is no emergency. There is just an unpopular president of the other party. In effect, she thinks the activists don't need to do this, but they'd rather do it much faster.
That does not mean that Pelosi necessarily disagrees with Raskin's assessment that "there are high crimes and misdemeanors." The question is what follows from that assessment given present circumstances. Some think that such offenses are enough. Pelosi is effectively indicating that the presence of impeachable offenses is a necessary but not a sufficient condition for launching an impeachment. Pursuing those charges is not worth it in this case. There is too little to be gained.
Of course, one reason why there is too little to be gained is because the Democrats almost certainly do not have the necessary votes to convict the president in the Senate. Ezra Klein and Gene Healy have suggested that we should "normalize" presidential impeachments. The supermajority requirement for conviction in the Senate, however, means that normalizing impeachments in the current circumstances will generally mean futility in a Senate trial. As a practical matter, if the opposition party wants to remove a sitting president through the use of the impeachment power, it needs to be able to persuade at least a few senators from the president's own party to vote to convict him. If we were to "normalize" impeachments in the House, it is hard to imagine that we would be able to make it any easier to reach across the aisle in the Senate and persuade senators to vote against a president who remains popular among his own partisans.
So that leaves the question of whether there is any point to a presidential impeachment when it is a foregone conclusion that the result will not be the premature removal of the president from office. If Raskin or Tom Steyer think that impeachment is a good idea regardless of whether anyone other than Democrats are in favor it, then they need to answer the question of why it is worth impeaching a president even when removal is not on the table. The answer to that question cannot be that the president is too dangerous to tolerate in office, because futile impeachments will not change that situation one bit.
Such an impeachment might better be understood as a particularly strong form of a resolution of censure. It would express the sense of the House that the president has behaved very badly. There might well be reasons for sending such a message. The House might simply want to go on record stating that some of the actions they have observed are indeed impeachable, or should be regarded as impeachable if observed again during other presidencies in the future. Impeachments can be a useful vehicle for forcing a debate on how we expect government officials to conduct themselves in office and for changing our constitutional norms and practices. An impeachment can accomplish that result even if the impeached official in not removed.
But if norm-building is the point of an impeachment of Donald Trump, then Democrats would need to build that case. They would need to focus their attention not on the relatively arid question of whether the president has committed a high crime or misdemeanor, but on the more substantive question of how we expect presidents to behave in office and why. In discussing that question, Democrats may even find that impeachment is a counterproductive vehicle for developing a political consensus around a set of norms for future political behavior. They would need to make the debate less about Trump and more about the health of the constitutional order. But that might not be a debate that Democrats actually have any interest in pursuing.
To borrow from the recent NYT editorial about anti-vaxxers, "sometimes it's ok to get out of the grey zone." Scientists are generally "uncomfortable with black-and-white statements, because science is all about nuance." But in the case of sex and sport, "there are some hard truths that deserve to be trumpeted." There is a significant performance difference between males and females from puberty onward. Testosterone is the primary driver of that difference. There is a wide gap, no overlap, between the male and female T ranges. Sex may not be binary for all people or for all purposes. But for sport, what most of us mean when we say "sex" is actually what matters, and that sex is undeniably binary: you either have testes and functional androgen receptors, or you don't. "Full stop."
In a nutshell, from Sex in Sport:
The "normal human fetus of either sex has the potential to develop either male or female organs, depending on genetic and hormonal influences." Specifically, "all developing embryos become feminized unless masculinizing influences [androgens] come into play at key times during gestation." Sex differentiation, defined in the first instance as the development of the testes, is triggered by the SRY gene which is present on the Y chromosome.... Testicular production of testosterone is primarily responsible for the difference in male and female testosterone levels, both during development and throughout the individual's lifetime.... [A]lthough males and females both produce testosterone, males have a lot more because the testes produce more than ovaries, adrenal glands, and cysts or tumors.
The following figure, also from Sex in Sport, demonstrates what we mean by "a lot more":
Testosterone (T) Reference Ranges
Sex Typical and Atypical (Intersex)
Sport converts ng/dL to nanomoles per liter (nmol/l). In those units, the female range is from 0.4 to 2.1 nmol/l; the male range is from 10.2 to 39.9 nmol/l; and the gap between the two is 8.1 nmol/l.
On average, even in the elite athlete population, males have 30 times more T than females. This includes both transgender women and girls starting from the onset of puberty, and 46-XY males with the two differences of sex development (DSDs) that are most relevant for sport: 5ARD (alpha-reductase deficiency) and PAIS (partial androgen insensitivity). The Gold, Silver, and Bronze medalists in the women's 800 meters in Rio—Caster Semenya, Francine Nyonsaba, and Margaret Wambui—are all suspected of having the former condition. They are not "hyperandrogenic females." The latter are represented on the figure as 46-XX females with PCOS (polycystic ovaries) and CAH (congenital adrenal hyperplasia).
This difference in T levels is responsible for the performance gap. Specifically, the sports science community is in wide agreement on the following three points, which they regard as our equivalent of judicially noticeable facts:
First, the main physical attributes that contribute to elite athletic performance are power generation (speed and strength), which is based on muscle mass, muscle fiber type, and biomechanics; aerobic power (VO2 max), which is based on hemoglobin concentration, total blood volume, maximal stroke volume, cardiac size/mass/compliance, skeletal muscle blood flow, capillary density, and mitochondrial content; body composition, i.e., lean body mass and fat mass; and economy of motion, which is related to body composition.
Second, biological males and biological females are materially different with respect to these attributes. Specifically, compared to biological females, biological males have greater lean body mass (more skeletal muscle and less fat), larger hearts (both in absolute terms and scaled to lean body mass), higher cardiac outputs, larger hemoglobin mass, larger VO2 max (also both in absolute terms and scaled to lean body mass), greater glycogen utilization, higher anaerobic capacity, and different economy of motion.
Third, the primary reason for these sex differences in the physical attributes that contribute to elite athletic performance is exposure in gonadal males with functional androgen receptors to much higher levels of testosterone during growth and development (puberty), and throughout the athletic career. No other endogenous physical or physiological factors have been identified as contributing substantially and predominantly to these differences.
This figure from andrologist David Handlesman shows the relationship between the onset of male puberty and the development of the performance gap:
Wickliffe Shreve, Jeff Wald, Richard Clark, and I developed the next figure to bring these science facts to life. The figure marks the individual lifetime bests of three well-known female Olympic Champions in the 400 meters—Sanya Richards-Ross, Allyson Felix, and Christine Ohuruogu—in the sea of male-bodied performances run just in the single year 2017. It shows that the women would lose to the very best senior men that year by about 12%. But it also shows that even at their absolute best, they would go on to lose to literally thousands of other boys and men beginning at 0.1%.
In fact, the most important tranches are from 0.01% to 3%: In total, just in 2017, there were 6,959 male-bodied performances from 0.01% to 3% of Ms. Richards-Ross's lifetime best. This compares with a combined total of just 2,740 in the tranches from 3-11%. None of the performances from 0.01% to 3% would be considered elite in men's events either on the collegiate or the international stage.
Advocates for an identity-based eligibility rule argue—without any basis in the physical sciences, mind you—that the dominance of male-bodied athletes over female-bodied athletes is not necessarily due to their testosterone ('T') levels, i.e., that T is no more determinative of outcomes in sport than are other advantageous traits. Unless the point is the also-basic one that as between any two individuals—e.g., Allyson Felix and a random non-elite male who runs about the same times she does—T is not necessarily dispositive, this argument has no merit. As I suggested in a NYT analysis piece last year, "Pick your body part, your geography, and your socioeconomic status and do your comparative homework. Starting in puberty there will always be boys who can beat the best girls and men who can beat the best women."
Because the anti-T crowd often uses swimmers to illustrate their point, I'll close with this from Sex in Sport:
[T]he performance gap holds even when we adjust for the fact that the best elite athletes are "freaks of nature" and that their success can be largely attributed to their unusual physical traits. Sex, specifically testes and their effects, matter in ways that other biological differences among athletes do not.
For example, swimmer and multiple Gold Medalist Missy Franklin is six feet two inches tall with a wing span of six feet four inches. Her world record in the 200 meters backstroke, set at the 2012 Summer Olympics in London, is 2:04.06. Ryan Lochte's world record, set at the 2008 Olympics in Beijing, was a full nine seconds faster at 1:53.94. If Franklin had been in that race, at her best she would have been about a half a lap behind Lochte when he finished, even though they are the same height and have just about the same wingspan.
In a world in which competitors were categorized by height and wingspan—or just height or just wingspan—instead of sex, Franklin would not have had a world record; she would not have been on the podium; in fact, she would not have made the team. In those circumstances, we might not even know her name.
There is perhaps no more guilty party in the current wave of antisemitic attacks on pro-Israel Americans than the American Civil Liberties Union.
To understand why, one first has to understand that the essence of modern antisemitism is not so much hostility to Jews as individuals, but a conspiracy theory in which Jews, collectively, exercise hidden power over events for the benefit of Jews at the expense of everyone else.
Given this essence of antisemitism, people and organizations who make false or wildly exaggerated statements about the doings of the "Israel Lobby" are contributing to antisemitism, regardless of whether they have any personal animus toward Jews. Consider, for example, those who have made the not-just-wrong-but-utterly-wacky claim that the lobby (a) somehow managed to persuade George Bush, Dick Cheney, 3/4 of the Senate, most of the House of Representatives, and so on, against their better judgement that going to war with Iraq was a good idea, and (b) that the lobby did so on behalf of Israel's interests. These folks are giving aid and comfort to antisemites, regardless of their feelings about Jews. Indeed, but for the latent idea that Jews are disloyal to the U.S. and have special power to pervert national agendas to their own agenda, no one would take this conspiracy theory seriously.
Let's turn to the ACLU. Various states have passed legislation that bans their state governments from contracting with businesses that refuse to do business with Israeli-affiliated institutions and individuals. This could be anyone from the Israeli government itself to American students who study in Israel, and everything in between. These laws are controversial as many people think that political boycotts of this sort shouldn't be penalized in any way by the government. The other side argues that first of all it's quite rich for boycotters to complain about being boycotted, and second that the boycott movement against Israel is both in its origins and in its practical effects antisemitic, making them in effect an adjunct of antidiscrimination laws. We need not resolve that debate here, but simply to note that the ACLU takes the side of the laws' opponents, and has launched both a litigation and public relations campaign against the laws. (I've explained why the ACLU's legal arguments are wrong here.)
There's nothing inherently wrong with that, but there is something wrong with the ACLU publicly arguing that when states require contractors to sign a certification that they do not boycott Israel-related entities, that the contractors are being forced to sign a "loyalty oath" to Israel.
Here are just a few examples:
ACLU political director Faiz Shakir: "And if a state is going to say that we're not going to do business with an American citizen because they refuse to take a loyalty oath, for example, the courts have struck that down."
The ACLU blog reprinting an article stating that the law requires "a loyalty oath to the state of Israel before he can be paid."
An ACLU blog entry: "That means [the government] cannot impose ideological litmus tests or loyalty oaths as a condition on hiring or contracting. This principle was famously tested in the McCarthy era, when many state laws required government employees to declare they were not members of the Communist Party or other "subversive groups" in order to keep their jobs. The ACLU successfully challenged many of those laws on constitutional grounds, and anti-Communist loyalty tests have been mostly relegated to the dustbin of history. The same rule applies when the government asks someone to certify that they are not engaged in a boycott of Israel."
ACLU brief in Koontz v. Waston: "There is no plausible justification for ... the loyalty oath."
This is complete nonsense. Contractors certifying that their businesses don't boycott Israel-related entities is no more a "loyalty oath" to Israel than certifying that they don't refuse to deal with black or gay or women-owned business, or or that they will deal only with unionized businesses, is a "loyalty oath" to blacks, gays, women, or unions. Contractors who sign anti-boycott certifications are free to boycott Israel and related entities in their personal lives, and they and their businesses are free to donate to anti-Israel candidates and causes, and even to publicly advocate for BDS.
To further illustrate, let's compare a typical McCarthy-era loyalty oath to the certification contractors are being asked to sign.
Here's California 1950s loyalty oath for state employees:
I further swear (or affirm) that I do not advise, advocate or teach, and have not within the period beginning five (5) years prior to the effective date of the ordinance requiring the making of this oath or affirmation, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California and that I am not now and have not, within said period, been or become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California. I further swear (or affirm) that I will not, while I am in the service of the City of Los Angeles, advise, advocate or teach, or be or become a member of or affiliated with any group, association, society, organization or party which advises, advocates or teaches, or has within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California . . .
This is nothing like merely signing a certification that your business does not boycott those doing business with or in Israel. It's also worth noting that while the anti-boycott legislation applies only to businesses contracting with the state, "loyalty oaths" were imposed on individual employees.
By spreading the false meme that no-boycott certifications amount to not just loyalty oaths, but loyalty oaths to a foreign government the ACLU has spread the canard that the pro-Israel (read, overwhelmingly Jewish) organizations and their members want to use the force of the state to require everyone to be "loyal" to Israel.
And this has indeed fueled antisemitic fires, and given credence to antisemitic statements like those Rep. Ilhan Omar regarding how Congress has been bought off to be loyal to Israel. I can't tell you how many times I've read in response to criticism of Omar's claim that American Jews are buying the government's loyalty to Israel, "she's right, what about the anti-BDS loyalty oaths?" For example, here is Paul Waldman in the Washington Post arguing that Omar has been "unfairly smeared," and pointing to imaginary state laws that "literally" require contractors to "pledge [their] loyalty to Israel."
Some commentators, meanwhile, have taken the ACLU's exaggerations and upped the ante. Andrew Sullivan, for example, recently portrayed a federal bill permitting states to refuse to deal with contractors who boycott those doing business with or in Israel entities as a bill that would have "made it illegal for any American to boycott goods from the West Bank, without suffering real economic consequences from their own government."
I understand that ACLU lawyers have a responsibility to their clients to win the p.r. war to help with its legal battle, but the organization has disgraced itself by using the "loyalty oath" canard that it had to know would play on latent and blatant antisemitic sentiment. The real shame is that I don't think that the poobahs at the ACLU care.
Who would have thought that in the midst of the #MeToo moment, just as a film on menstruation gets an Oscar and we're celebrating RBG's jurisprudential legacy—including the part about celebrating inherent differences, we'd also be debating whether biological sex is a real thing or just a social construct, and whether, if it's real – if there is a "female body" and a "male body" with variations on the themes – it's ok to talk about it and to take it into account in the defense and development of law and policy. But here we are. And what a drama it is, especially in this period in the elite sports space. Martina Navratilova playing doubles with Rich Lowry against Rachel McKinnon and Scott Shackford. The LGBTQI coalition splintering, (I)ntersex versus (T)ransgender. Feminists of one stripe against feminists of another. Conservatives about sex and sexuality actively enjoying our civil war. Sex clearly gets us all exercised.
Using sports as a lens, I've been working to understand whether biological sex continues to be salient as a basis for classification in the institutional settings in which it is used, either as "sex" or by its synonym "gender." Or, was the Obama Administration right that "sex" should be erased from sex discrimination law and replaced by "gender", which it defined non-synonymously: "An individual's internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual's sex assigned at birth."
The development of a really good answer to this question has broad societal significance, but it is most immediately important to two groups. The first is biological females, because we are the intended beneficiaries of the remaining positive sex classifications; and, as continuing disparities and subordinations on the basis of reproductive sex reflect, they're still necessary. The second is biological males who identify as girls and women and so understandably want to be recognized in life and in law as they self-define, rather than according to the ambiguous or incongruent bodies they inhabit.
This is what's on the table:
Who is a woman for purposes of women's only spaces and set asides like women's sport, women's health, women's education, and women's prisons?
Should these spaces and set asides – originally designed "on the basis of sex" or else to remedy the effects of exclusions and subordinations on the basis of stereotypes about sex – continue to privilege female-bodied people, or should they be sex neutral so as not to exclude male-bodied people who identify as women or as gender fluid?
Is there even a winning argument under existing doctrine for a women's only space or set-aside that is not either directly or indirectly based in inherent differences, i.e., that is female sex blind?
If there isn't one, what does the winning argument under a new, gender identity-based doctrine look like, and can it (also) satisfy the goals of the original, i.e., can it protect and empower female-bodied persons who are and probably always will be subject to different treatment precisely because of their reproductive biology, regardless of how they identify?
I have five days to give you a sense of how these issues play out in the conversation about eligibility for the women's category in elite sport. I'll mostly be excerpting from my article Sex in Sport which allows for a deep dive if you're so inclined.
On Tuesday, I'll focus on inherent differences, i.e., on the relevant biology and on arguments about that biology. This includes the process of sex differentiation and arguments about whether sex is binary; and the physiology that drives the performance gap and arguments about whether it's really all about T (testosterone). Here, I'll dismiss the weirdly popular but baseless argument that testes and male T levels are no different than other superior body parts and socioeconomic advantages.
On Wednesday, I'll summarize the case for retaining sex or at least sex-linked traits as the basis for classification into girls' and women's elite sport. I'll focus on defending Title IX, but its goals and the ways it has developed to achieve them have analogues across sport.
On Thursday, I'll tackle sex testing, with a focus on the current iteration which uses testosterone as a way both to distinguish males from females, and to include male-bodied athletes who identify as girls and women into the female category. This approach, which is reflected in the eligibility rule that Caster Semenya has challenged at the Court of Arbitration for Sport, has been subject to a years-long, extraordinarily aggressive public assault by academics and advocates who disdain the physical sciences and have deconstructed sex to the point where nothing remains except identity. And yet it actually represents an extraordinary compromise between complete exclusion—which is anathema to progressives, and unconditional inclusion—which would be category defeating.
On Friday, I'll return to the issues I introduced above, with some concluding thoughts on: who is a woman for purposes of women's only spaces beyond sport; whether the classification should be based on identity and not biology; and whether existing doctrine can accommodate female sex blind claims.
(1) A minor who posts or publishes a picture of a firearm, a BB gun, an air or a gas-operated gun, or a device displayed to resemble a firearm to a social media page, post, profile, or account that is openly viewable to the public commits a misdemeanor of the first degree, punishable [by up to a year in jail or a fine of up to $1000].
(2)(a) Any parent or guardian of a minor, or other adult responsible for the welfare of a minor, if the minor possesses a firearm in violation of this section, may, if the court finds it appropriate, be required to participate in classes on parent education which are approved by the Department of Juvenile Justice, upon the first conviction of the minor. Upon any subsequent conviction of the minor, the court may, if the court finds it appropriate, require the parent to attend further parent education classes or render community service hours together with the child.
(3) Any firearm that is possessed or used by a minor in violation of this section shall be promptly seized by a law enforcement officer and disposed of ....
This is an obvious First Amendment violation: The statute isn't limited to displays that constitute true threats of violence (there's a First Amendment exception for such true threats), or possession of guns by minors in violation of state law. Indeed, it would be a crime for a minor to post a photo of himself lawfully using a gun at a shooting range.
So would a minor's posting "a picture of a firearm" (not even a photograph of himself holding a firearm) as part of a pro-gun-rights -- or anti-gun-rights -- political post. So, for that matter, would be a minor's posting a photo of soldiers holding guns. But even if the bill were somehow limited to the minor's posting of photographs of himself holding guns (or BB guns or other perfectly lawful guns), it would still be an unconstitutional content-based restriction on speech.
From United States v. Suppressed, decided yesterday by the U.S. District Court for the Northern District of Illinois:
Before the court is the Chicago Tribune Company, LLC's ... motion to intervene and to unseal a search warrant affidavit. The motion presents the difficult—and thankfully, rare—question of how the court should proceed where a document properly subject to a seal order is nonetheless accessed by a member of the press....
In January 2019 it came to this court's attention that the Chicago Sun-Times ... was in possession of an affidavit submitted in connection with a search warrant application in this matter, despite a court order requiring those materials to be maintained under seal. A reporter for the Sun-Times had gained access to the affidavit by exploiting a docketing error in the court's electronic filing system. As soon as the error was brought to the court's attention, the court electronically applied the seal in accordance with the order to seal, but by then the affidavit was in the possession of the Sun-Times. In a series of articles beginning on January 23, 2019, the Sun-Times has reported on the contents of the search warrant affidavit.
In the current motion, the Tribune seeks to intervene for the limited purpose of seeking access to the search warrant affidavit. According to the Tribune, it has First Amendment and common law rights to access the subject affidavit because, in its words, "the proverbial cat is out of the bag" now that the Sun-Times is in possession of the document and has reported on its contents. The government objects, arguing that there is no right to access documents related to unexecuted search warrants in the pre-indictment stage of a criminal investigation, and that even if there were, the public's interest in the fair and efficient administration of criminal proceedings outweighs any interest in accessing the sealed affidavit. The government further argues that the Sun-Times's possession of the affidavit subject to a seal order does not require the court to lift the seal, and that doing so "would create perverse incentives to engage in conduct that decidedly is not in the public interest." ...
[The trial court] granted PIP's motion for injunctive relief, directing Hartman to remove podcasts and posts from certain websites and prohibiting Hartman from making oral or written statements about PIP that could be interpreted as defamatory or irreparably harmful....
[T]he trial court erred by requiring Hartman to remove his past speech from certain websites because a factfinder has not decided whether Hartman's statements are false or defamatory. We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although "it has never been held that all injunctions against publication are impermissible," such an injunction has been upheld only when it "was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory." High Country Fashions v. Marlenna Fashions, 257 Ga. 267, 268 (1987) (citations and punctuation omitted).
For similar decisions, see, e.g., Hill v. Petrotech Resources Corp. (Ky. 2010): ("[A]n injunction against false, defamatory speech" is allowed "only upon a final judicial determination that the speech is false. … Until such determination of falsity, however, [the Kentucky Constitution's analog to the Free Speech Clause] is best interpreted as proscribing a preliminary restraint upon the alleged defamatory speech. … Neither a restraining order … nor a temporary injunction … may be used to enjoin allegedly defamatory speech."); Balboa Island Inn, Inc. v. Lemen (Cal. 2007) ("A preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker's or publisher's First Amendment claims.").
Campus Reform (Celine Ryan) has the details, with video and with a statement from the university acknowledging that this happened:
Due to the nature of the event advocating gun rights, a Campus Public Safety officer monitored the event to ensure the safety of participants. When an individual disrupted the event by ringing a cowbell, the officer used his professional judgment and determined not to threaten or restrain the individual so as not to escalate a potentially unsafe situation. After the disruption, the meeting continued, and PSU facilities management allowed College Republicans to extend their meeting beyond the scheduled end time that night because of the disruption delay.
The event "continued" but only after over an hour of delay, according to the Campus Reform story.
UPDATE: I originally used the generic "shouted down" in the headline, but I decided to change it to "shouted (and cowbelled) down," partly to be more precise, and partly because I like the phrase "cowbelled down."
I'm delighted to report that Prof. Doriane Lambelet Coleman (Duke Law School) has agreed to blog this coming week on how transgender competitors should be treated in women's sports; she is the author of Sex in Sport, a recent law review article on that very subject. This is a matter that I have long found interesting, but haven't studied closely; I much look forward to learning more from Prof. Coleman's posts!
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Nature's Little Recyclers is a father–son business that does composting on empty residential lots, transforming organic waste into nutrient-rich soil. Last year, the business's worms processed 10 tons of banana peels and cups from the Chicago Marathon that would otherwise have gone to a landfill. But Chicago officials are going to shut the business down—and not because the city doesn't think composting is a good thing (the city's sustainability website directs people to Nature's Little Recyclers). Rather, the city's business and zoning regulations weren't designed to accommodate small and innovative operations like Nature's Little Recyclers. Click here to read more. And click here to sign a petition urging the city to free the worms.
- Via the D.C. Circuit: In which we learn that side effects of marijuana use may include a feeling that you are no longer flying.
- There's a good cross-examination, and then there's a Vincent LaGuardia Gambini-level cross-examination. D.C. Circuit: This case involved the latter, and it utterly destroyed the witness's credibility.
- Man harasses his ex for years, posts intimate videos of her online, directs strangers from the internet to her home for sex. She changes her name and moves across the country, but the harassment continues. He goes to prison for three years for cyberstalking. Upon release, he harasses a new victim. His supervised release is revoked. First Circuit: No error in sending him back to prison for two years, an upward departure from the sentencing guidelines.
- Over several months, man repeatedly threatens his next-door neighbor with profanity, racial epithets. The police investigate, warn the man to stop, and then arrest him when he does not. Eventually, the man leaves the apartment complex after the landlord declines to renew his lease. Can the neighbor sue the landlord for failing to intervene sooner? The Second Circuit says yes, the neighbor's Fair Housing Act claims should not have been dismissed. Dissent: The FHA doesn't say landlords can be liable for tenant-on-tenant harassment; more likely it precludes such claims.
- After railroad company builds salt storage facility in town, Shelburne, Vt. officials enact ordinance that bars salt from being stored at that location and imposes $800 to $10k per day fines for noncompliance. Second Circuit: There is no public health and safety rationale for banning the storage of salt. The ordinance thus falls afoul of federal law protecting railways from local regulations (unless those regulations meaningfully protect public health and safety).
- Federal criminal trials must begin within 70 days after a defendant is charged, but there are many ways to pause the clock. So it is rare indeed, notes the Third Circuit, that convictions are overturned on speedy trial grounds. And yet this week the circuit yields up not one but two such cases. Case 1: The gov't took 37 days to transport a defendant to a psych eval—something that stops the clock for just 10 days—and can point only to its own negligence for why it took so long. Conviction vacated, and no retrying defendant because he's already served his sentence. In Case 2, the trial court, of its own volition, postponed trial by 79 days but failed to discuss how that affected the speedy trial clock. Conviction vacated, but it's up to the trial court whether defendant can be retried.
- Allegation: Patrick's girlfriend, Nicole, cheats on him with David. Nicole tells David that his wife, Audrey, is having an affair, too—with Patrick. Nicole gives David the password to Patrick's email, allowing David to access emails between Patrick and Audrey, which might then help David in his divorce proceedings. Can Patrick sue David for accessing his email account? Indeed so, says the Fourth Circuit; Patrick's federal and state law claims should not have been dismissed.
- Motorist pulls over for Beaufort County, S.C. police but peels out as they approach his car on foot. The officers shoot him, causing grievous injuries. (The motorist's 6-year-old son is not hit, but another passenger is.) Fourth Circuit: No qualified immunity. It's unclear whether the officers fired while the driver was heading toward them (which would be reasonable) or while he was driving past or away from them (which would be decidedly unreasonable). So to trial the case must go.
- Former Armenian ambassador to China is charged in Ohio with participating in scheme to bribe Kazakh official to secure gas pipeline contract for British company. (The company has a subsidiary based in Ohio, and U.S. banks were allegedly involved to launder money.) The ex-ambassador is in China and declines to travel to Ohio to answer the charges; instead, he seeks (via his lawyers) to have the charges dismissed. Sixth Circuit: Under what's "known loosely as the fugitive disentitlement doctrine," he needs to show up to court to secure either "the benefits or the burdens of the ruling."
- Allegation: Retired cop gets into verbal altercation with Detroit cops at police event in Cleveland, Ohio. The Detroit cops beat him up. He's taken outside in handcuffs, where three Cleveland officers beat him up. Sixth Circuit: No qualified immunity for the three Cleveland officers.
- Minnesota officials limit participation on public high school competitive dance teams to female students. Two male students sue under the Equal Protection Clause, but the district court denies their request for preliminary injunction. Which, says the Eighth Circuit, was error. In limited circumstances, this sort of sex discrimination can be used to remedy past discrimination against members of one sex. But "over the past five years, the representation of girls in Minnesota athletics has been almost directly proportional to the number of girls enrolled at Minnesota schools." So there's no good reason to exclude the boys.
- Feds: $579k cash seized at roadside stop is drug money. Trucking company: It's not drug money. We want it back. Eighth Circuit (last year): No can do. This circuit's precedent says you have to explain in detail how you came by the money when you file initial paperwork to challenge a civil forfeiture—or the money is automatically forfeited. Eighth Circuit (en banc): Our precedent was wrong. It's enough just to assert ownership. Producing documentation comes later.
- San Francisco police investigating the murder of a pimp begin to suspect the family of a young girl whom the victim had been prostituting and obtain a warrant for cell phone location data from the girl's father and cousin. But! The warrant application talks primarily about the father with barely a mention of the cousin. No worries, says the Ninth Circuit; that wasn't enough to support probable cause, but the police were entitled to rely on the warrant in good faith. Dissent: Come on, guys. The cousin didn't even live in San Francisco, and the warrant application didn't bother to suggest he was in town the day of the murder.
- Allegation: Man is attacked on Salt Lake City, Utah street. His nose gets broken, but he can't identify his assailant. There were witnesses, but police do not process crime scene evidence or arrest anyone. The deadline for the man to file a civil suit against his unidentified assailant passes. Can the man sue the police for preventing his access to the courts? The Tenth Circuit says no.
- Allegation: Soon-to-be-released inmate at Sterling, Colo. prison fears his cellmate will kill him, asks for cell reassignment. The request is denied; 10 days later the cellmate murders the inmate. The inmate's estate sues prison officials just shy of two years after the murder. District court: Ah, but the deadline to sue started running when the cell transfer request was denied, so the suit was filed a few days too late. Tenth Circuit: That might not be true for all the defendants.
- Woman at Gillette, Wyo. grocery store calls police to report a theft; the suspect is apprehended. Yikes! The woman has an outstanding arrest warrant; she's going to jail, too. She asks to leave her purse in her truck, declines to let police search it. They search it, discover contraband. Tenth Circuit: Which is an illegal search. Suppress the evidence. She was handcuffed, and the purse was no longer on her person, so the cops needed a warrant.
- In Georgia, people who are not "lawfully present" in the U.S. cannot attend the state's three most selective colleges. That includes DACA recipients, several of whom sue. Claim: Federal immigration law preempts the Georgia policy. District court: It doesn't. Eleventh Circuit: Just so. Georgia's policy "looks to federal standards to verify lawful presence." And as DACA recipients, the plaintiffs "simply were given a reprieve from potential removal," which is different from being lawfully present.
If you want to pilot commercial vessels on the St. Lawrence Seaway and Lake Ontario, you need to get a license from the Coast Guard. That's all well and good; it takes a considerable amount of skill and training to navigate the waters safely. But there's more: You must also get the okay from a private, for-profit business, the St. Lawrence Seaway Pilots Association, which demands that would-be pilots pay $200k to join their association. This week, Captain Matthew Hight and IJ sued the Coast Guard for violating the Constitution by delegating its licensing power to a private entity. Read more here.
[A] Georgia Board of Regents ... Policy requires Georgia's three most selective colleges and universities to verify the "lawful presence" of all the students they admit. Under the Policy, applicants who received deferred action pursuant to the Deferred Action for Childhood Arrivals memorandum ("DACA Memo") cannot attend Georgia's selective schools.
Appellants are students who are otherwise qualified to attend these schools, and they filed suit to challenge the Policy. At the heart of their suit is whether they are "lawfully present" in the United States. They say they are lawfully present based on the DACA Memo. Thus, appellants claim the Regents' Policy is preempted by federal law, and they argue the Policy violates their equal protection rights.
The court concluded that the policy was consistent with federal law, and didn't violate the Equal Protection Clause. That strikes me as quite right, for the reasons the court gave.
I should say that illegally coming to a country strikes me as no serious sin; most people who come here illegally just want a better life, and generally work hard to try to get it. Certainly people who were brought here as children weren't at fault for coming here; and while the law may in essence require them to leave, I can certainly see why it would be a hardship for them to leave what for most is the only country they've known. Breaking the law is illegal (whether it involves criminal entry or merely violating civil immigration restrictions), but it doesn't make it particularly immoral. If circumstances were different, I'd feel little moral compunction about illegally immigrating to a country to improve my and my family's lot in life -- not zero moral compunction, but little.
But illegal presence remains illegal presence, even if the President has chosen to exercise his discretion not to enforce the law. The State of Georgia has no obligation, I think, whether under the Constitution or federal law, to spend money to educate people who are illegally here. It may choose to do so, if it thinks that this is the moral or humanitarian or economically wise thing to do; but it has no legal duty to do so, as the Eleventh Circuit holds.
For those who track such things, I should note that the panel consisted of a Ford Court of Appeals appointee, an Obama Court of Appeals appointee, and a Clinton District Court appointee.
Thanks once again to Eugene for the opportunity to share this research from "Article II Vests the Executive Power, Not the Royal Prerogative." I'd like to close with some thoughts on the larger project and its implications.
This first article lays the foundation. A full account of the Founders' presidency will require extensive engagement with the debates and political practice of late eighteenth-century America—all of which is coming in future work. But the evidence on Madison's bookshelf is so overwhelming that it would take something seriously compelling to dislodge the presumption it creates. Absent such evidence, the Executive Power Clause would have to be understood as vesting the wholly derivative authority to execute the laws, and nothing else.
If that's right, what does it tell us about the presidency that resulted? Some have rejected the law execution interpretation of the Executive Power Clause because they think it renders the President a limp dishrag. Certainly Chief Justice Vinson's Youngstown dissent rejected the historical interpretation on the ground that it would render the President an "impotent" "automaton" or "messenger-boy." And the arch-royalist Filmer echoes loudly in Harvey Mansfield's suggestion that "if any real president confined himself to this definition, he would be contemptuously called an 'errand boy'...a mere agent whose duty is to command actions according to the law."
These objections to "mere" execution fail to appreciate the importance of the clause. Certainly they underrate the power of law execution today, when the statutory framework entrusts the President with a staggering array of discretionary policy power. But more relevantly for the historical question, they underrate the clause's centrality in the eighteenth century as well. In fact, the problem targeted by the Executive Power Clause might have been the most important motivation for drafting the Constitution in the first place. Future work will explore the point in detail, but the bottom line is that the Founders were desperate for a more effective force to implement national projects and prohibitions.
Their anxieties on this score reflected one of the oldest problems of governance design. The treatise known as Bracton taught centuries of English lawyers that "it is of no use to make laws, unless there is some one to maintain them." The great jurist Coke intoned that "the life and strength of the Laws, consisteth in the execution of them: For in vaine are just lawes Inacted, if not justly executed." Writers competed to make the point most vividly, with analogies ranging from military force ("a sword made of Parchment and Paper in his Laws") to the human body ("the will which determines the act" and "the strength which executes it") to astrology (bodies in the "solar system" of governance "are attended with satellites of executive power") to musical instruments ("Lawes without execution, be no more profitable, then belles without clappers").
The Founders couldn't have agreed more, not least because of what they learned from the slow motion catastrophe known as the Articles of Confederation. You don't have to dig any deeper than the records of the Constitutional Convention to find Gouverneur Morris saying that "the efficacy & utility of the Union" would "depend" on "the due formation" of "the establishment of the executive." The Article II solution to the execution problem was no afterthought. In some ways, it was the crux of the whole settlement.
So don't be too quick to think the law execution theory minimizes presidential authority. The executive power has never been anything less than the nation's force mustered in service of the nation's will. Once it was vested in a single magistrate, and once that magistrate was given a veto to influence the content of his legislative instructions, the result was a massively powerful institution. Just not one with a free-floating foreign affairs power, or indeed any other authority not specifically listed elsewhere in the constitutional text.
[For all the posts in this series, click here.]