The Volokh Conspiracy

Congratulations to my former GMUSL student and George Mason alum Josh Blackman, who will be a tenure-track lawprof at South Texas Law School starting this Fall. Congratulations also to Brian Frye, who was my research assistant when I visited at Georgetown Law Center in 2003. Brian will be starting a tenure-track gig at University of Kentucky this Fall. Brian joins former Bernstein RAs Jeffrey Jackson of Washburn Law School (from the same Georgetown semester) and Nate Oman of William and Mary (who helped me with You Can’t Say That! as a college student) in the legal academy.

Finally, congratulations to GMUSL alum and current George Mason visiting assistant professor Jeremy Kidd, who has accepted a tenure-track appointment at Mercer Law School. I think this is the first time George Mason has placed two alums in tenure-track academic posts in the same year.

In today’s Wall Street Journal, Jonah Lehrer has an article arguing that political ignorance makes democracy work better, and may even be essential to its survival. Much of the article is based on extrapolations from a dubious study of fish behavior, which I criticized here. Lehrer takes the argument a step further by claiming that excessive political knowledge may have been a big factor in facilitating the Nazis’ rise to power in 1930s Germany:

If every voter was well-informed and highly opinionated, then the most passionate minority would dominate decision-making. There would be no democratic consensus—just clusters of stubborn fanatics, attempting to out-shout the other side. Hitler’s rise is the ultimate parable here: Though the Nazi party failed to receive a majority of the votes in the 1933 German election, it was able to quickly intimidate the opposition and pass tyrannical laws.

That the Nazis succeeded because German voters were too knowledgeable would have come as news to Adolf Hitler, who wrote in Mein Kampf that “[t]he receptivity of the great masses is very limited, their intelligence is small, but their power of forgetting is enormous.” As a result, he advocated taking advantage of political ignorance by using crude and simplistic propaganda:

All propaganda must be popular and its intellectual level must be adjusted to the most limited intelligence among those it is addressed to. Consequently, the greater the mass it is intended to reach, the lower its purely intellectual level will have to be. But if, as in propaganda for sticking out a war, the aim is to influence a whole people, we must avoid excessive intellectual demands on our public, and too much caution cannot be extended in this direction.....

Once understood how necessary it is for propaganda in be adjusted to the broad mass, the following rule results:
It is a mistake to make propaganda many-sided, like scientific instruction, for instance....

[A]ll effective propaganda must be limited to a very few points and must harp on these in slogans until the last member of the public understands what you want him to understand by your slogan. As soon as you sacrifice this slogan and try to be many-sided, the effect will piddle away, for the crowd can neither digest nor retain the material offered.

This kind of propaganda was an important part of the Nazis’ electoral success under the Weimar Republic, when they eventually managed to get over one third of the vote, making themselves the single most popular party. If the average German voter was “well-informed,” it would have been much harder for the Nazis to achieve so much electoral success. For example, a well-informed German electorate would have been skeptical of absurd Nazi claims that Germany’s political and economic crisis was caused by the tiny Jewish minority. They might also have rejected the Nazis’ crude zero-sum view of the world economy, which posited that Germany could only achieve prosperity by conquering other nations. It isn’t possible to list here all the different ways that the Nazis benefited from voter ignorance. But the bottom line is that a more knowledgeable German electorate would not have been to their advantage.

Lehrer also presents a distorted view of what happened after the Nazis took control of the government in early 1933. They did not “intimidate the opposition” by being “the most passionate minority,” as may have occurred in the fish study. Rather, they did so by the more conventional method of banning all opposition parties, imprisoning their leaders, and inflicting severe punishment on anyone who resisted. Absent these measures, it is unlikely that they would have been unable to crush the opposition so completely. There is no reason to believe that an electorate composed of “opinionated and well-informed” voters would necessarily give in to the most “most passionate” minority absent the use of force. Indeed, the more opinionated and well-informed you are, the less likely it is that you will change your mind about an important issue merely because a “passionate minority” loudly claims that you are wrong. As Hitler recognized, crude propaganda is usually most effective with ignorant audiences.

I don’t deny that there can be unusual situations where political ignorance is actually beneficial. But the rise of the Nazis is one of the last places to look for evidence that ignorance leads to bliss.

For some technical reason, over the last couple of days we’ve been seeing delays with the public posting of some of the comments. Our apologies, and don’t take it personally — it’s not you, it’s us. We hope to have this under control soon.

UPDATE: All should be better now (as of 7:30 am Eastern on Sunday the 8th).

From Tyler Cowen, via James Grimmelmann: Soren Riis has a really fascinating essay on the rather astonishing recent developments in the world of computer chess [Part 1, Part 2, and Part 3) focusing on the the lifetime ban, recently handed down by the organizers of the World Computer Chess Championships, issued against the author of “Rybka,” a highly successful computer chess program, on the grounds that it is using “plagiarized” code.
It’s a fascinating story in its own right, but particularly for what it says about innovation and information; here’s the key figure, showing the improvements in computer chess play in the last two decades:

What happened in the mid-2000s that led to the sudden improvement in both the overall quality of computer and the rate at which new programs became seriously competitive? Riis writes:

What happened? Starting with the release of the first open-source Fruit in mid-2004, and continuing with the release of subsequent versions of Fruit, open-source engine Stockfish, and especially the release of reverse-engineered Rybka derivatives, highly detailed recipes for building strong, modern chess engines have been in the public domain. Fledgling chess programmers as well as programming veterans have not failed to take notice and the state of the art has advanced rapidly. As a result of this spread of knowledge new programs receive a tremendous performance boost and become “fast climbers”.

There’s a great deal more in the original essay about the nature of proprietary rights and the norms and customs in this particular community — well worth reading.

In Sweden, at least — where, according to this article in PC Magazine, the government has just officially recognized the “Church of Kopimism,” whose central tenet is that “information is holy and copying is a sacrament,” and whose sacred symbols are CTRL-C and CTRL-V.

I haven’t the faintest idea, of course, what it means, in Sweden, to be officially recognized as a religion, and what consequences flow from the determination; we live in a country where, obviously, there is no government body charged with determining what is, or is not, a “religion” (though courts, equally obviously, must from time to time make such a determination when looking at Free Exercise challenges to government action, or at Religious Freedom Restoration Act claims). But I wonder how a defendant in a file-sharing copyright action might fare by raising a RFRA defense ?

And while we’re on the subject of religious nonsense, the same article informs us that “scientists in the U.K. have recently discovered that Apple technologies actually provide some people with a religious experience . . . [finding that] Apple products stimulate the same parts of the brain as religious imagery does in people of faith.”

[Thanks to V. Steinbok for the pointer]

As co-blogger Jonathan Adler notes, Rick Santorum’s view of constitutional federalism is that the federal government can always override the states when the latter are doing something that is “wrong”:

I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.

Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won’t get involved in that.

I will get involved in that because the states, as a president I will get involved because the states don’t have a right to undermine the basic fundamental values that hold this country together.

Although I’m no fan of Santorum’s, there is a small kernel of truth to his argument. Some evils are so great that we may be justified in violating constitutional limitations on federal power in order to eliminate them. Slavery is probably the best historical example. Even some anti-slavery jurists, including Dred Scott dissenter Justice Benjamin Curtis, thought that Abraham Lincoln had exceeded his constitutional authority when he issued the Emancipation Proclamation (which freed all slaves held in the rebel states). But even if Curtis was correct, Lincoln still did the right thing. As Thomas Jefferson wrote in a letter defending the Louisiana Purchase (which he undertook even though he thought it was unconstitutional), “[A] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest.”

But there is a big difference between claiming that we are morally justified in violating the Constitution in some extreme cases and concluding, as Santorum did, that the Constitution allows the federal government to “get involved” whenever the states are committing a “wrong.” That would essentially give the feds the power to override the states anytime a national majority or the federal political elite thought state policies were wrong in some way. It would lead us to essentially unlimited federal power.

Maybe such unlimited power would not be a bad thing if we were confident that the feds would restrict themselves to overruling the states only when the latter are genuinely “wrong” in some objective sense, while otherwise leaving them alone. In reality, however, an unconstrained power to correct state wrongs is also an unconstrained power to impose federal wrongs. And federally imposed wrongs are often more dangerous than state wrongs. A “wrong” state policy affects fewer people than a similar federal policy does. Moreover, people can often “vote with their feet” to escape harmful state laws, which is much harder in the case of federal laws.

Obviously, there are important exceptions to these generalizations, some of which I have written about elsewhere. But there is good reason to reject the view that the federal government should be allowed to override the states anytime the latter do something “wrong.”

UPDATE: It’s worth noting another important difference between the view that unconstitutional actions are sometimes justified for the purpose of alleviating truly massive state injustices and Santorum’s claim that the feds can act anytime states do something “wrong.” In the former case, federal officials subject themselves to the risk of legal action, including possible impeachment. If they explicitly admit that they are violating the Constitution (as Jefferson did), they could also face public backlash for it. These dangers will tend to mitigate the risk that federal officials will violate the Constitution anytime they find a state policy they dislike. Such risks are much smaller in a political environment where a Santorumesque interpretation of the Constitution becomes dominant.

The Wall Street Journal recently published an article on widespread public ignorance about federal spending [HT: Andrew Varcoe]:

Many Americans have strong opinions about policy issues shaping the presidential campaign, from immigration to Social Security. But their grasp of numbers that underlie those issues can be tenuous.

Americans vastly overestimate the percentage of fellow residents who are foreign-born, by more than a factor of two, and the percentage who are in the country illegally, by a factor of six or seven. They overestimate spending on foreign aid by a factor of 25, according to a 2010 survey. And more than two-thirds of those who responded to a 2010 Zogby online poll underestimated the part of the federal budget that goes to Social Security or Medicare and Medicaid.

“It’s pretty apparent that Americans routinely don’t know objective facts about the government,” says Joshua Clinton, a political scientist at Vanderbilt University.

Americans’ numerical misapprehension can be traced to a range of factors, including where they live, the news they consume, the political rhetoric they hear and even the challenges of numbers themselves. And it isn’t even clear how much this matters: Telling people the right numbers often doesn’t change their views.

These are not new findings. I wrote about earlier survey data with similar results here and here. Despite the growing fiscal crisis that has emerged over the last few years, most of the public knows very little about federal spending.

The article suggests that this ignorance may not matter much because the majority of survey respondents don’t change their minds about policy priorities even when presented with correct information. It is certainly true that people are slow to change their minds about political issues, often even rejecting outright any data that conflicts with their preexisting views. In general, however, people with higher levels of political knowledge have much different views on many issues than those with low levels, even after controlling for partisanship, race, gender, income, and many other background variables. Knowing one key fact about the budget may not change your mind. But being generally knowledgeable about federal spending may well lead you to have different views from otherwise similar people who are mostly ignorant about it. Moreover, on some key issues where the balance of political power is close, there could be important effects on policy even if only five or ten percent of voters change their minds.

In this case, the public’s failure to understand that entitlements and defense constitute the lion’s share of federal spending probably makes them more reluctant to consider cuts in these areas. Conversely, the belief that foreign aid and payments to illegal immigrants are much greater than they actually are lead voters to focus their ire on these issues far more than is warranted.

“Court records show his previous name to be Jeffrey Drew Wilschke. He legally changed it to Beezow Doo-Doo Zopittybop-Bop-Bop in October.” Zop... was charged with, among other things, “possession of drug paraphernalia [and] possession of marijuana.” Who’d have thunk it? Thanks to Tom Whiston for the pointer.

But I’m happy to say that today’s Ryan v. Hughes-Ortiz (Mass. App. Ct. Jan. 6, 2012) throws out the lawsuit:

In November, 2001, [Charles] Milot was released on probation from the Billerica house of correction after an incarceration of about eighteen months. [Thomas] Hughes testified in his deposition that he helped Milot to get reestablished by loaning him a small amount of money and giving him odd jobs to do around his house. [During the pendency of this action, Hughes died, and his daughter, Hughes-Ortiz, was substituted as a party defendant.] Hughes knew Milot through Milot’s sister, Deborah McConologue, and her husband, whom Hughes had known for twenty years. Hughes was aware of Milot’s history of substance abuse, prior depression, and the loss of Milot’s driver’s license.

In his deposition, Hughes testified that he owned several firearms that he stored in a chest in a second-floor bedroom. The bedroom was kept locked and had been outfitted with barred windows. Hughes testified that he kept the keys to this bedroom in a vase on top of the fireplace.

One of the firearms that Hughes owned was a Glock pistol. Hughes purchased the Glock pistol and its storage container in 2000 from the widow of a former Boston police officer. Hughes testified in his deposition that he stored the unloaded pistol as well as its magazine in its storage container in a chest drawer in the same bedroom where his other guns were stored....

In her deposition testimony, McConologue reported that, at a family event held on February 23, 2002, Milot showed her two handguns and two loose cartridges ... [and] told her that he got them from Hughes’s house. She further testified that Milot told her that he found the key in Hughes’s house for the locked bedroom door, unlocked the door, and found the guns, ultimately taking them from Hughes’s home. McConologue testified that she advised her brother to call Hughes and return the pistols to him, that Milot did not want to tell Hughes that he had taken the guns, but that Milot agreed to put them back the way he had found them.

On February 25, 2002, Hughes picked up Milot around 7:00 A.M. and brought Milot to his house. Once they were at Hughes’s house, Hughes showed Milot the front doorbell that he wanted Milot to repair. Hughes then left his house to run some errands, returning to check on Milot’s progress about two hours later. When Hughes returned home, he found Milot’s body covered with blood in the front doorway of his home. The police and an ambulance were called and upon their arrival, Milot was pronounced dead. An autopsy was performed, and it was determined that Milot had suffered a gunshot wound to his left thigh which severed the femoral artery and caused Milot to bleed to death.... Police speculated that “[a]pparently the victim was attempting to put the gun back in the container when the round was fired, striking the victim in the upper left leg.... The victim apparently walked out of the bedroom, down the front stairs, into the living room, used the telephone and walked to the front door where he collapsed and died.” ...

Continue reading ‘Felon Steals Gun, Accidentally Kills Himself, Estate Sues Owner and Gun Manufacturer’ »

The brief is here, and it strikes me as significantly better than the briefs that DOJ was filing in the early mandate cases. In terms of atmospherics, it leads with a background of the health care industry to make clear that the industry as a whole is such a significant part of commerce, and it presents insurance as the “traditional” way to pay for health care. The argument section then leads with the Necessary and Proper clause. The word “Sutton” appears 14 times, and the word “Kavanaugh” appears 5 times. Just as a matter of litigation strategy, I agree that’s the best way to present it.

It will be interesting to see if Clement et. al. come up with anything new in their merits brief. If I were briefing it for the challengers, I would de-emphasize the formalistic activity/inactivity distinction and instead just focus on the overall extent of government power. That is, instead of focusing on any one aspect, I would focus on all of them together, and argue that the statute taken as a whole just goes too far in a federal system.

UPDATE: Commenter Jon Shields points out this interesting passage from the brief:

Respondents nonetheless attempt to subdivide the uninsured into cost-shifters (who they say can be regulated) and non-cost-shifters (who they say cannot be), contending that “many healthy individuals make a rational choice to self-insure and are fully capable of paying for the care they receive,” and that uninsured individuals are able to properly consider their “actuarial risk in self-financing (their) healthcare”…

The circumstances of this case well illustrate the flaws in respondents’ premises. At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance: she said she did “not believe that the cost of health insurance coverage (was) a wise or acceptable use of (her) financial resources,” j.a. 141, apparently believing that she could pay her medical bills out of pocket. That belief proved incorrect. Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers. Those liabilities are uncompensated care that will ultimately be paid for by other market participants. As Congress found, Brown’s experience is hardly atypical. 42 u.s.c.a. 18091(a)(2)(g) (“62 percent of all personal bankruptcies are caused in part by medical expenses.”).

Ouch.

Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson “would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government.” As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on their plantations, and that marijuana use was neither illegal nor socially stigmatized in the late 18th and early 19th centuries.

Perhaps more importantly, few if any of the Founders would have thought that the federal government had the constitutional authority to ban marijuana growing. As I discuss in this article, as late as the early twentieth century, advocates of Prohibition had to enact a constitutional amendment to forbid the sale of alcoholic beverages, because the dominant view at the time held that Congress did not already have the power to do this. If they are serious about enforcing constitutional limits on federal power, Gingrich and other conservatives cannot continue to ignore the ways in which the War on Drugs has severely undermined those limits, most notably in Gonzales v. Raich, the Supreme Court’s most expansive interpretation of federal authority so far.

I blogged about the case a few days ago, and news of the cert grant is here. The QP:

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

And so the most interesting Supreme Court Term in years becomes even more interesting.

Earlier today, I skipped both the annual AALS conference and the parallel Federalist Society conference in order to attend a moving memorial for Vaclav Havel sponsored by the National Endowment for Democracy and the Czech embassy. Appropriately, most of the speakers were dissidents and human rights activists from societies with repressive governments — including Syria, China, Cuba, Ethiopia, and others. It was an impressive demonstration of the ways in which Havel inspired people all over the world. I won’t try to summarize what the speakers said (videos of some of their remarks are available here). But it was particularly interesting to hear Ethiopian opposition leader Birtukan Midekssa speak about how she had read Havel’s The Power of the Powerless while in prison.

I briefly summarized my own thoughts on Havel’s life and legacy here.

On Tuesday, January 10 at noon, I will be speaking on the War on Drugs at a panel organized by the University of Chicago Law School Federalist Society. I will discuss the ways in which the War on Drugs undermines constitutional federalism, some of the harm it inflicts on our society, and recent changes in public and elite opinion that may make it easier to promote change in this field. Also taking part in the panel will be Cook County Commissioner John Fritchey.

One justification for President Obama’s decision to make several recess appointments this week is that the appointments were necessary to prevent partisan obstruction from disabling federal agencies from performing their duties.  In the case of Richard Cordray, it was clear that Senate Republicans would block his appointment as head of the Consumer Financial Protection Board (CFPB) due to their opposition to how the Board is structured.  A recess appointment was the only way to put Cordray (or anyone else) in place to run the Board.

In the case of the National Relations Board, the President was concerned that the Board would lack a quorum.  As the Supreme Court confirmed in New Process Steel v. NLRB, there must be three NLRB members for the Board to have a quorum, and there were only two Board members remaining after Craig Becker’s recess appointment expired on January 3.  Yet if the NLRB was to lack a quorum it would not have been because Senate Republicans blocked the President’s most recent nominees.

Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its “pro forma” session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed.  As the Heritage blog reports, the Senate’s Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration.  (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)

It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we’ll never know.  The two were given recess appointments before they could be considered, let alone opposed.  In this regard, the Griffin and Block appointments were something of a preemptive strike.

A decade ago, I spent a lot of time debunking misunderstandings of the USA Patriot Act. Unfortunately, the press coverage of the Patriot Act began in the (mostly) pre-blog era, and the media coverage of it was laughably bad. The problem was that most reporters had no idea what was in the Act, but they had a feeling that whatever was it in, it must be dramatic. So they reported the Patriot Act as a dramatic change without providing any details, leading a lot of people to think that every seemingly-sinister act by the government must be part of the Patriot Act. Fortunately, a decade later, the hysteria has mostly died down, but this post at Popehat suggests it’s not quite gone:

Yesterday I was looking at our traffic on Woopra and noticed a huge surge of searches for Ashton Lundeby. Who, you may ask? You know, Ashton Lundeby, the kid who was arrested for interstate telephone threats and became the subject of an internet propaganda campaign suggesting that he was being detained without charges under the PATRIOT ACT, possibly in a FEMA dungeon someplace. They Greys may or may not have been involved.

In fact, Lundeby was not detained secretly under the PATRIOT Act; that was propaganda sourced to his mother. Rather, he was arrested and charged as a juvenile under pre-9/11 statutes, indicted and prosecuted as an adult once the relevant U.S. Attorney’s Office secured a court order allowing them to do so under preexisting law governing federal juvenile defendants, and later entered a guilty plea and was sentenced to 22 months time served. His mother later admitted she had made the PATRIOT ACT stuff up.

So why are people Googling him again?

Well, probably because another set of folks whose political agenda is served by the OMG BLACK HELICOPTERS routine — this time various folks who identify with the Occupy movement — have been pushing, uncritically and without even minimal due diligence, the bogus Lundeby-as-PATRIOT-ACT-victim story, two years after it was conclusively refuted, and even though the most minimal search reveals many sources showing it isn’t true.

It’s not hard to see why the Patriot Act was so poorly understood in 2001. People were freaked out by 9/11, and that led to two emotional reactions: Some people deeply wanted really dramatic anti-terrorism legislation, and other people deeply feared that the response to 9/11 would be really dramatic anti-terrorism legislation. The Patriot Act was actually pretty modest, once you understood it. But the narrative of Patriot-Act-as-Huge-Change fit nicely with the narrative a lot of people were very inclined to hear. It didn’t help that it was very technical legislation passed in a pre-blog era: The nerds who followed the field closely knew perfectly well that the media coverage was terrible, but there was no obvious way to get the press to realize their errors.

Apropos the United States v. Huet discussion, let me ask a broader question.

People generally have a Second Amendment right, the Court has held, to have guns in their homes. Most of us could keep a handgun in our nightstands, for instance, setting aside special questions about laws requiring locked storage of guns when children are around. (Those questions are potentially similar to the ones I talk about here, but different enough that I didn’t want to focus on them at this point.)

But federal law bars several classes of people from possessing guns, see 18 U.S.C. § 922(g)(1), including:

1. Anyone who has ever been convicted in any court of a crime punishable by imprisonment for a term exceeding one year (unless the person’s civil rights have been restored, a procedure that isn’t available for federal crimes and isn’t available in some states),
2. anyone who has ever “been adjudicated as a mental defective or who has
   been committed to a mental institution,”
3. anyone who has ever been convicted in any court of a misdemeanor domestic violence crime,
4. any nonresident alien (with limited exception).

What kinds of restrictions should the government be able to impose on those who live with people who fit in these categories — for instance, because they’re married to those people, have those people as adult children or parents who are living with them, or have those people as houseguests or roommates? Say, for instance, that a visitor comes to stay with a gun owner for a week from outside the country, or the gun owner’s relative who has a long-ago criminal record comes to visit. May the government categorically ban gun possession in the home by people who live with (or temporarily have as houseguests) such prohibited persons, on the theory that such possession in the home necessarily means the prohibited persons possess the gun as well?

May the government ban only the unlocked storage of guns in the home (except when the gun is being physically held by the owner)? Ban even locked storage, unless the lock is a combination lock and the prohibited person never learns the combination, or the lock has a key and the owner of the gun always keeps the key in a place where the prohibited person can’t get it? Only ban storage in common places or rooms to which the prohibited person commonly accesses, so that you can store it in your nightstand (unless the prohibited person sleeps in your room), so long as it’s understood that the prohibited person isn’t allowed in your room? Not impose any bans at all, except for the prohibition on the prohibited person actually picking up the gun?

I’d like to get at exactly how these people’s gun possession might be restricted, rather than just relying on generalities such as “constructive possession.”

The recess appointnment claus is an “odd clause” — and perhaps even the “oddest clause of all” in the Constitution, according to BU’s Jay Wexler.  However odd it may be,  it’s receiving lots of attention due to the President’s decision to make four recess appointments even though the Senate maintains it had not formally recessed.

Michael Rappaport makes the originalist case against the President’s recess appointments here.  Likewise, Richard Epstein and John Yoo both argue President Obama’s recess appointments are unconstitutional, as do David Rivkin and Lee Casey. (Note that some of these arguments would have applied to prior recess appointments, including those by President Bush.) At NRO’s Bench Memos, Matthew Franck is unconvinced.  Recall our own John Elwood has also taken the opposite view.  Yale law student Alexander Platt also has a timely student note on the legality of recess appointments,“Preserving the Appointments Safety Valve,” arguing against the use of pro forma sessions to prevent recess appointments from being made.  (Hat tip: Lawrence Solum)

Legal scholars also debated the acceptatbility of recess appointments during the Bush Administration.  Marty Lederman, for example, argued that the recess appointments clause can only be used a) during intersession recesses to fill b) vacancies that occurred during the recess.  The first argument was used (unsucessfully) in an effort to unseat Judge William Pryor who received a recess appointment to the U.S. Court of Appeals for the 11th Circuit.

Whatever the merits of the respective legal arguments — and whether or not they are ever resolved in court — at the Monkey Cage, Sarah Binder observes that Presidents of both parties have made intrasession recess appointments for quite some time, and sees little reason for the practice to stop.  But, as Ezra Klein notes, there are limits to how often this tactic will be used (more here).

While academic commentators seem to have maintained their prior positions, the same cannot be said of political leaders.  As The Hill reports, Senate Majority Leader Harry Reid supports President Obama’s recess appointments even though he previously argued pro-forma sessions were sufficient to prevent such appointments from being made.

UPDATE: Here is some additional commentary from Bruce Ackerman, Lawrence Tribe, and Adam White.

Yesterday’s United States v. Huet (3d Cir.) reverses a district court indictment dismissal that I blogged about a year ago (some line breaks added):

Although [Melissa] Huet is legally permitted to possess a firearm, [her housemate and boyfriend Marvin] Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of [a raid on her house that uncovered guns], Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet’s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall’s possession....

[Huet moved to dismiss the indictment, arguing] that even if Count Three did state an offense for aiding and abetting a felon in possession, under the factual scenario presented in this case, the charge violated her rights under the Second Amendment. The District Court agreed, finding that “to permit [the] Indictment to go forward ... would be [to] countenanc[e] the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon.” “[T]o punish Huet, who has not been convicted of a felony ... as a principal, violates the core of the Second Amendment right to keep arms,” the Court opined, because the conduct alleged to have aided and abetted was “purely possessory.” Although the District Court did not explicitly designate the Second Amendment violation as an alternative basis for dismissal, it clearly viewed it as such. Accordingly, we must address both the sufficiency of the Indictment and the Second Amendment challenge....

[T]he District Court erred to the extent that it imposed a heightened pleading standard for offenses under 18 U.S.C. § 922(g)(1) and § 2 [the federal aiding and abetting statute –EV]. The District Court dismissed Count Three based on its determination that “[t]he facts in the Indictment fail[ed] to set forth any allegations to support the conclusion that ... Huet aided and abetted ... Hall in his unlawful possession of the SKS rifle.” The District Court faulted the Government for failing to include “any specifics” as to how Huet aided Hall, and determined that the Government simply “charge[d] its conclusion.” Although some offenses must be pled with greater specificity than the “plain, concise, and definite written statement” contemplated by Rule 7(c)(1), we have never held aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 to be such an offense, and we decline to do so now....

[As to the Second Amendment,] Huet argues that based on the circumstances of her case, she cannot constitutionally be charged with aiding and abetting a felon to possess a firearm. Specifically, she contends that the Government’s only evidence is that she possessed the SKS rifle in her home while living with a convicted felon. The District Court agreed, finding that “to permit [the] Indictment to go forward” would be to “countenance[e] the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon.

We disagree. We cannot say that an indictment which properly alleges aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 violates the Second Amendment under Heller. Applying Marzzarella [a recent Third Circuit precedent –EV], a properly-brought aiding and abetting charge does not burden conduct protected by the Second Amendment. The District Court’s characterization of the Indictment as seeking to criminalize the otherwise legal possession of a firearm by a non-felon simply because she lives with a felon is misleading. The Indictment does not allege that Huet’s possession of the SKS rifle violated the law; rather, it alleges that Huet aided and abetted Hall to possess the firearm.

We are mindful of the risk that felon dispossession statutes, when combined with laws regarding accomplice liability, may be misused to subject law-abiding cohabitants to liability simply for possessing a weapon in the home. However, in this case, the District Court’s determination that the Government overreached was premature. Huet’s arguments regarding the circumstances of her possession must await further development of the evidentiary record.

Huet’s argument that her status as a non-felon brings her case within the scope of Second Amendment protection is unavailing.... Huet would not violate § 922(g)(1) simply by possessing a firearm. She would, however, violate § 922(g)(1) and § 2 by aiding and abetting a felon to possess a firearm. Count Three charges her with the latter. Thus, the fact that she is not within the class of persons prohibited from possessing a firearm is irrelevant; her right to possess a firearm is not implicated by the charges against her. Moreover, even if part of the conduct that allegedly aided and abetted Hall’s possession involved possession of the firearm by Huet, the Second Amendment does not afford citizens a right to carry arms for “any purpose.” Huet’s right to keep the SKS rifle in her home did not give her the right to facilitate Hall’s possession of the weapon. Otherwise illegal conduct does not somehow become immunized because possession of a firearm is involved in the offense. See, e.g., United States v. Potter, 630 F.3d 1260, 1261 (9th Cir. 2011) (per curiam) (rejecting a defendant’s challenge to his conviction for possession of a firearm in furtherance of drug trafficking and concluding that “[e]ven if [the defendant] kept the firearm also to protect himself and his home,” it could not “seriously be contended that the Second Amendment guarantees a right to use a firearm in furtherance of drug trafficking ”).

In a response to my recent post, Originalism and Civil Damages for Fourth Amendment Violations, Michael Ramsey argues at The Originalism Blog that there is a way to square originalist opposition to the exclusionary rule with originalist embrace of doctrines cutting back on Fourth Amendment civil remedies. The basic idea is that the civil causes of action such as Bivens and Section 1983 that the Court often interprets are not the true descendants of the civil causes of actions at common law, but rather are special federal causes of action that exist in addition to those remedies. At common law, the law of search and seizure was a defense to a tort suit. If the King’s officials entered a home with a warrant, the homeowner could sue for trespass, and the valid warrant would serve as an affirmative defense. Ramsey argues that Section 1983 and Bivens are different causes of action that go beyond this role:

Bivens claimed a basis in the Constitution, but it didn’t arise from the Constitution’s original meaning; an originalist would more likely think of Bivens as a creation of federal common law (which doesn’t necessarily mean it was illegitimate, just that it wasn’t constitutionally required). That explains, though, why the Court in cases like Anderson felt free to engage in what was (as Professor Kerr suggests) basically common law rulemaking rather than originalism. It was common law rulemaking, because all of Bivens, from which Anderson arose, is sub-constitutional federal common law.

It’s important to distinguish Anderson from two other sorts of suits for Fourth Amendment violations: (1) Fourth Amendment (really, Fourteenth Amendment) claims against state and local officials brought under the federal statute 42 U.S.C. 1983 (Section 1983 claims), and (2) state law claims (e.g., for trespass or battery) brought against federal, state or local officers. Neither of these is a constitutional claim and so they don’t raise issues of constitutional originalism.

Under Section 1983, courts have found implied qualified immunity (or in some situations absolute immunity) as a matter of statutory interpretation – perhaps wrongly, but that’s not of constitutional concern. As to state law claims, I would think federal courts couldn’t impose requirements like qualified immunity (whether Congress could is a different question). But states aren’t obligated to allow such claims at all, so they have latitude to impose such limitations themselves. The only place in this field that I know of where federal courts are creating non-statutory federal immunities is in Bivens claims (like Anderson). But they are doing it as a matter of common law, not constitutional law.

I really like this argument, although it has a fascinating implication: It suggests that existing immunity doctrines for state law tort suits against government officials may be unconstitutional, as they impermissibly fall below the floor of the original Fourth Amendment. By way of context, it is common for state tort law to have created a form of qualified immunity that applies when state officials are sued in state court for conduct undertaken as part of their official duties. Further, federal officers are protected from state tort causes of action for conduct in the course of their official duties by the Westfall Act. If Professor Ramsey is right, however, an originalist might conclude that these doctrines are unconstitutional. The state tort law causes of action must be preserved without immunity doctrines because they are the lineal descendants of the common law causes of action for tort in which common law search and seizure questions could be raised by the officers as an affirmative defense.

The WSJ Law Blog reports on comments by former Senator Rick Santorum (unearthed at RedState) on federalism and the authority of different states to adopt different policies on moral questions.

I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.

Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won’t get involved in that.

I will get involved in that because the states, as a president I will get involved because the states don’t have a right to undermine the basic fundamental values that hold this country together. America is an ideal. It’s not just a constitution, it is an ideal. It’s a set of morals and principles that were established in that declaration, and states don’t have the right, just like they didn’t have the right to do slavery.

If Senator Santorum is a “strong supporter of the 10th amendment,” he might want to read it, as it seems to say precisely what he denies.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Constitution only prohibits states from doing those things the Constitution prohibits, and the federal government may only constrain state autonomy pursuant to those powers delegated to the federal government.  Santorum may think same-sex marriage is wrong, but nothing in the Constitution prevents states from recognizing same-sex marriage nor does anything in the Constitution authorize the federal government to stop states from doing so.

The reference to Lincoln is also interesting, and does not exactly support Santorum’s claim that “states don’t have a right to undermine the basic fundamental values” of the nation. Contrary to Santorum’s suggestion, states did have the legal authority to permit slavery prior to adoption of the Thirteenth Amendment (which was adopted, incidentally, well after Lincoln’s death). The Emancipation Proclamation, issued pursuant to the President’s War Powers, only applied in those states that had seceded.  The federal government had the authority to limit slavery, such as by ending the slave trade or (prior to Dred Scott) prohibiting slavery in federal territories, but states retained the authority to “do wrong.”

A more charitable interpretation of Santorum’s remarks would be that there is nothing in the 10th Amendment that would prevent a constitutional amendment to prohibit gay marriage.  That would be true, but trivially so.  There is nothing in the Constitution that prevents the adoption of additional amendments on anything (with one exception still relevant today).  But this only makes the point.  Were a constitutional amendment  adopted prohibiting same-sex marriage, then states would be specifically prohibited from recognizing such marriages  by the Constitution, not by some conception of America’s “moral enterprise” or the “basic fundamental values” of the nation.

Today is Perihelion Day, the day that the earth is closest to the Sun — and by quite a bit, 3% closer than it will be 6 months from now, at aphelion. Weather patterns are much less affected by this than they are by the tilt of the Earth’s axis, but, hey, being the closest we get to the Great Bringer of Energy should count for something.

Our local counsel Benjamin Souede (Angeli Law Group LLC) and I have just filed a motion for new trial in Obsidian Finance Group, LLC v. Cox. As you may recall, the Nov. 30 opinion in that case concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections. The motion for new trial argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media. Here is Part I.A of our memorandum in support of the motion:

Even if plaintiffs were not public figures, defendant was still entitled to the protections of Gertz v. Robert Welch, Inc.

The Supreme Court has held that the First Amendment applies equally to the institutional press and to others who speak to the public: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (internal quotation marks omitted). In support of this holding, the Court favorably quoted five Justices’ opinions in a libel case — Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting), and id. at 773 (White, J., concurring in judgment) — which expressly concluded that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities,” id. at 784 (a view expressly approved by Justice White, id. at 773). And the Court in Citizens United went on to specifically mention that its “‘reject[ion]’” of any greater protection for the institutional press over other speakers stemmed partly from the realities of the Internet age: “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” 130 S. Ct. at 905–06.

Indeed, the principle that the institutional press and others who speak to the public have the same First Amendment rights has been applied by the Court in case after case since the 1930s. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (stating that the freedom of the press “embraces pamphlets and leaflets” as well as “newspapers and periodicals,” and indeed “comprehends every sort of publication which affords a vehicle of information and opinion”); New York Times Co. v. Sullivan, 376 U.S. 254, 265–66 (1964) (applying the same First Amendment protection to the newspaper defendant and to the non-media defendants who placed an advertisement in the newspaper); Garrison v. Louisiana, 379 U.S. 64 (1964) (applying the rule of New York Times Co. v. Sullivan to a speaker who was not a member of the institutional press); Henry v. Collins, 380 U.S. 356, 357–58 (1965) (same, where the speaker was an arrestee who conveyed statements to the sheriff and to wire services alleging that his arrest stemmed from a “diabolical plot,” Henry v. Collins, 158 So.2d 28, 31 (Miss. 1963)); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 782 n.18 (1978) (rejecting the “suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by [non-institutional-press businesses]”); Cohen v. Cowles Media Co., 501 U.S. 663, 669–70 (1991) (concluding that the press gets no special immunity from laws that apply to others, including laws — such as copyright law — that target communication); Bartnicki v. Vopper, 532 U.S. 514, 525 & n.8 (2001) (concluding that, in deciding whether defendants could be held liable under statutes banning the redistribution of illegally intercepted telephone conversations, “we draw no distinction between the media respondents and [the non-institutional-media respondent],” and citing New York Times and First Nat’l Bank of Boston as support for that conclusion).

All the federal circuits that have considered the question have likewise held that the First Amendment defamation rules apply equally to the institutional press and to others who speak to the public. Flamm v. Am. Ass’n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000); Avins v. White, 627 F.2d 637, 649 (3d Cir. 1980); Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir. 2009), aff’d, 131 S. Ct. 1207 (2011); In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986); Garcia v. Bd. of Educ., 777 F.2d 1403, 1410 (10th Cir. 1985); Davis v. Schuchat, 510 F.2d 731, 734 n.3 (D.C. Cir. 1975). As the Second Circuit put it in Flamm, “a distinction drawn according to whether the defendant is a member of the media or not is untenable,” even in private-figure cases. 201 F.3d at 149. And while the Ninth Circuit has not specifically discussed the question, it has indeed cited Gertz even where a non-institutional-press speaker was involved. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 694 n.4 (9th Cir. 1998) (citing Gertz for the proposition that a “private person who is allegedly defamed” must show “that the defamation was due to the negligence of the defendant,” in a case where the defendant was not a media organization).

Continue reading ‘Motion for New Trial in Obsidian Finance Group, LLC v. Cox’ »

An interesting National Law Journal op-ed from Clark Neily and Paul Sherman of the Institute for Justice, about a case of theirs, Locke v. Shore:

[T]he U.S. Court of Appeals for the 11th Circuit boldly declared last March that the regulation of “professionals’ ... direct, personalized speech with clients” received no First Amendment scrutiny whatsoever.

Fortunately, that aberrant holding may not stand much longer. This Friday, the U.S. Supreme Court will meet to decide whether to review the 11th Circuit’s ruling. If it takes the case — Locke v. Shore — it will be the Court’s first opportunity in 25 years to provide much-needed guidance on the First Amendment status of “occupational speech,” a murky area of the law that has grown increasingly important as more and more people earn their living by selling their speech.

Locke v. Shore is a challenge to a Florida law that requires interior designers to be licensed by the government before they may work in a commercial setting. The plaintiffs are three interior designers and the National Federation of Independent Business, some of whose members wish to engage in speech that Florida has broadly defined as the “practice of interior design.”

Florida is one of only three states in the nation to license the practice of interior design, and the burdens Florida’s law imposes on would-be designers are extraordinary, particularly in light of the fact that 47 states see no need to license them and have had no problems as a result. Acquiring an interior design license takes years and can cost tens of thousands of dollars. To be eligible for licensure, an applicant must first complete a combined six years of post-secondary education and apprenticeship under a state-licensed interior designer and pass a state-mandated exam administered by a private testing body.

Viewed through a First Amendment lens, the law is clearly unconstitutional. Virtually everything an interior designer does is speech, from consulting with clients regarding their personal goals and tastes, to drawing up space plans, to offering advice about the selection and placement of fixtures, finishes and furnishings. The Supreme Court has repeatedly held that all of these kinds of activities constitute “speech” within the meaning of the First Amendment. Weighed against the immense burdens Florida’s interior design law imposes on this speech is an utter dearth of evidence regarding the law’s supposed benefits to the public. Indeed, attorneys for the state stipulated during the litigation they had no evidence that the unlicensed practice of interior design — which is the norm in 47 states — poses any bona fide threat to the public, or that Florida’s licensing regime had benefited the public in any demonstrable way....

I was glad to have worked on Rob Kry’s amicus brief in this case on behalf of various industry groups.

Since Rick Santorum’s unexpected success, his extreme social conservatism has gotten a lot of attention. In some cases, it goes beyond what even most conservative Republicans would be willing to support. My personal favorite extreme Santorum quote hasn’t yet gotten as much play as some of the others.

In a September GOP debate, Santorum responded to a question about his position on the repeal of Don’t Ask, Don’t Tell by saying that “any type of sexual activity has absolutely no place in the military.” Perhaps Santorum merely meant that military personnel should not be having sex while on duty. But if that’s the case, no one disagrees with him, including supporters of the repeal of DADT. Getting rid of DADT doesn’t change regulations forbidding sexual behavior that interferes with the performance of duty. The more natural reading of Santorum’s quote is that military personnel should be forbidden to engage in “sexual activity” of any kind for as long as they are in the armed forces. If that’s the case, only celibates could serve in the military.

It’s possible that Santorum simply misspoke. But when the moderator asked him to explain his position further, he actually dug the hole deeper:

When moderator Megyn Kelly pressed him on what he would do as President, he fired back, “We are playing social experimentation with our military right now and that’s tragic...going forward we would reinstitute that policy if Rick Santorum was president, period.”

Santorum acknowledged that he couldn’t do much about those men and women currently serving in the military that have admitted to being gay, but concluded by saying, “Sex is not an issue, it should not be an issue, leave it alone and keep it to yourself whether you’re a homosexual or a heterosexual.“

In Santorum’s army, not only would gays be required to keep their sexual orientation secret, but so would heterosexuals. An equal-opportunity closet for all! The problem, of course, is that it’s very difficult to keep your orientation completely secret from long-term coworkers. People naturally mention their spouses, significant others, and so on, in casual conversation. If you wear a wedding ring or have a photo of your spouse on your desk, that might also be an indication of your sexual orientation. As a practical matter, you would probably have to be either celibate or extremely secretive to be safe from punishment under Santorum’s rule.

I can understand, though I don’t agree with, people who claim that DADT must be restored in order to promote unit cohesion. But Santorum’s prudery goes way beyond that.

I suspect that Santorum may not have grasped the implications of what he was saying. If he thought about it more carefully, he might well realize that forbidding all “sexual activity” by military personnel is likely to destroy the armed forces by making it nearly impossible to attract the number of capable volunteers we need to staff the military. Unless he intends to cut the military far more than even Ron Paul, that’s probably not what Santorum really wants. If Santorum wins the presidency, I doubt that he will actually try to implement this policy, if only because it would be a public relations disaster. Even so, it was a foolish and revealing statement.

I was out of the country and computer-less when my former colleague Larry Ribstein died in late December, so I didn’t have the chance to add to the many fine tributes to Larry that various bloggers contributed.

But I did want to add one thought. When I think of Larry, I think of how everyone respected his judgment. This primarily manifested itself in law school appointments matters but went well beyond that.

To take an extreme example, I remember that in 1998 or so, well before the Virginia Square area where George Mason is located experienced its current development boom, I expressed an interest in a Latin American restaurant across the street from the law school. I pointed out to some senior colleagues that it was the closest restaurant to the law school, but no one on the faculty ever seemed to go there. “Oh, that place?”, a colleague replied. “Larry went there about ten years ago, and said it wasn’t good, so no one has gone there since.”

That’s what seems to have happened in Farrar v. Obama (Ga. Office of State Admin. Hearings Jan. 3, 2012). Plaintiffs are arguing that President Obama should not be listed on the Georgia ballot because (1) “[e]very candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought,” and (2) President Obama is not a natural-born citizen because his father was not a U.S. citizen at the time of the President’s birth. A Georgia statute expressly allows any eligible elector to challenge any candidate’s qualifications, and that’s what the plaintiffs are doing.

Similar challenges have generally been rejected on procedural grounds, such as on the grounds that plaintiffs lack standing to sue because they have no greater stake in the matter than any other citizen. Generally speaking, federal courts have concluded that in such cases where the plaintiff doesn’t have a particularized stake in the matter, the resolution even of constitutional controversies should be left to the political process and not to courts. But because this is filed under state law, state standing law governs, and many states do not impose the same standing requirements as federal courts do. So the judge in this case denied the President’s motion to dismiss. (You can read for yourself the President’s motion to dismiss, and the plaintiffs’ response.)

My view, though not as one who is an expert on the subject, is that the plaintiffs’ legal claims are not sound as a matter of the merits. First, “natural-born citizen” means, roughly, “citizen at birth”; citizens come in two kinds, natural-born and naturalized. Second, when the Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” that means that all persons born in the United States are natural-born citizens (setting aside those not “subject to the jurisdiction” of the United States, a very small category that may cover children of diplomats and the like, but surely doesn’t cover President Obama, who, like nearly everyone else in the U.S., was subject to its jurisdiction).

But it will be interesting to see to see what the Georgia legal system does with this. As best I can tell from a quick glance of the statute, the administrative law judge is supposed to make findings and report them to the Georgia Secretary of State; the Georgia Secretary of State will then make the decision, which can then be appealed to Georgia trial court and then from there on up through the Georgia appellate system. And, though I don’t know much about the Georgia legal system, I suppose that it’s possible that the administrative judge’s denial of the motion to dismiss could be reversed even before a judgment on the merits, for instance through some sort of mandamus procedure. I’d love to hear what those expert in Georgia administrative procedure, or Georgia election law, can say about this.

(Note: I opened this for comments, not sure why only one is showing — I’ll ask the experts.) A late Happy New Year to the Volokh Conspiracy and all its readers. I’d like to thank Eugene for the opportunity he extended me a couple of years to join his merry band; I’ve found it stimulating and intellectually exciting, and I look forward to blogging in the coming year. I’m grateful to him. Having a little down time on a plane ride to California, I thought I’d think aloud a bit about blogging topics I might take up this year.  (This is idly dreaming, not promising.)

One is a continuation of blogging I’ve always done on international law, institutions, and politics, ranging from national security to international organizations. I’ll continue blogging on the interrelationships between drone technology, targeted killing, and the future regulation of covert action (loosely speaking). But I plan to expand to include more writing around the more long-run of autonomous weapons systems and battlefield robotics. These topics track academic and policy writing projects in which I’m engaged already. Robotics and the law generally has caught my interest in a big way, and I plan to post on different ways in which areas and issues of law intersect with the development of robotics in ordinary life. In this I hope to highlight the work of others in this emerging field, while asking what robotics and the law will gradually come to mean.

My short book on US-UN relations, Living with the UN: American Responsibilities and International Order, is in final production and will appear in the next couple of months (yes, I know I’ve said this before, but at this point, it’s down to settling on whether to have jacket blurbs or not). My hope is that it will help inform at least slightly debate over international relations and law in the presidential election — to be sure, mostly as the Republicans would see things, but with observations that I hope would be relevant to any US policy official dealing with the institutional UN. It’s quite true that I imagine John Bolton would find it more persuasive than Susan Rice, but I think it has relevance in a world in which new great power relations and the rise of China are re-shaping many things. (Note to teachers of international organizations, IR, international politics, international law, etc., this modestly priced book from Hoover Press would make a great contrarian addition to your syllabus; you are likely to find it very wrong but, I hope, shrewdly so. It’s not law, but policy, and easily readable at the general reader and undergraduate levels. I’m not writing for international law professors.)

As a teacher of international economic law classes, as well as the co-author in a book project on financial regulation reform, I will be blogging more often than I have in the last year about financial regulation. My co-authored book project is aimed at a very particular level and discussion. Not offering a body of substantive prescriptions for regulation, category by category, or a topic by topic critique of Dodd-Frank — both of these have been done, very effectively. But instead heuristics for prudential regulators seeking to be, well, prudent.

But I also intend to use blog posts here at Volokh this year to explore some new or lightly touched-on areas. One of these is to continue and deepen the discussion of higher education and legal education, their business models and their reform in both their economic structures and curricular forms. I want to push this discussion to include something I think of great importance, and relatively neglected — the defense of the study of the traditional humanities, as well as a certain model of higher education that would require, above all, reform to the admissions process. This discussion is informed by a more abstract discussion that, again, I’ve raised occasionally here but want to pursue on its own — the theory of elites in a mass democratic society, and particularly the version of it referred to as “New Class” theory. It is social theory, unapologetically so, and one that raises the question of social theory as such, and critique of the peculiar tendency of both rationalist economics and behavioral economics to ignore the irreducibility of social and cultural structures — even “institutions” is frankly too contingent a term — and to account for them as such.

These latter topics have interested me for a very long time, and I have an idea — perhaps stretching into 2013 — to play with new publishing forms through e-books and Kindle. I think I’d like to experiment with taking some of my blogging on these latter topics — social theory, elites, the New Class, perhaps framed around the problems of higher education — and put together a short Kindle book, and see how that new platform works.

Well. That’s a lot, much more than I’ll manage to do, and I’m spending lots of time working on pedagogy for my courses, even ones I have taught for many years. But I’m going to try and do some more culture blogging — Baroque and early music, cello, books, and culture. Possibly even a return to Stendhal.

Meanwhile, however, we are about to pass over the White Mountain, in the White-Inyo Mountains that form the eastern wall of the Owens Valley, a peak only 200 or so feet below the top of Whitney across the valley in the Sierra Nevada. These are my favorite places in all the world — even at 38,000 feet, sacred air space. So, passing over a short range in the Sierras called the Inconsolable Mountains, Anderson is at some very pagan prayer.

Two issues ago, the Claremont Review of Books published Richard Epstein’s review of my book, Rehabilitating Lochner. In the next issue, two conservative readers criticized Epstein’s review for endorsing Lochner. Claremont asked Epstein and me to respond. Claremont has now posted the letters to the editor and the responses here.

My response focuses not on whether Lochner was right or wrong (I take no position on the issue), but on taking issue with some of the statements and assumptions made in the letters–statements and assumptions that reflect longstanding conservative propaganda points in debates over the Fourteenth Amendment, but that rely on myths inherited from Progressive jurists.

I conclude that

there are quite reasonable arguments that liberty of contract, per se, is not protected by the Due Process Clause. Even if it is so protected, one can reasonably argue that the Lochner Court should have followed Justice Harlan’s dissent and exhibited greater deference to the judgment of the New York legislature. For conservative constitutionalists to make such determinations, however, requires a careful study of the relevant historical and legal materials free from the baggage of the tendentious, politically motivated accounts of Progressives, New Dealers, and their successors on the Left and, surprisingly, the Right.

Claremont’s website doesn’t have a comment feature, but you can contribute to the debate in the comments below.

The Consumer Financial Protection Board was not the only beneficiary of a recess appointment today. The AP reports the President also made three recess appointments to the National Labor Relations Board — two Democrats and one Republican. The White House release is here.

Leaving aside the constitutional questions, there is a potential statutory problem with the legality of the Cordray appointment under Dodd-Frank.  Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.”  It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

This seems to suggest that even if the President might be able to appoint Cordray under the recess power the full grant of statutory authority wouldn’t transfer to the Bureau unless the statutory language was fulfilled as well.

(HT: Jerry Loeser)

In every election year, politicians and pundits routinely attack negative campaigning, claiming that it is somehow inappropriate or harmful. This year, Newt Gingrich has been complaining about it especially loudly. But many others have said similar things.

As I see it, negative campaigning is just as useful and just as legitimate as the positive kind. In assessing candidates for public office, we need to know about their weaknesses as well as their strengths. When an employer chooses who to hire for a job, it would be foolish for him to consider only the fact that a given applicant is intelligent and knowledgeable, while ignoring evidence showing that he or she is, say, lazy and unreliable. The same goes for the process of hiring people for powerful political offices, which is ultimately what elections are all about.

Moreover, it’s important to remember that elections are comparative evaluations. We don’t just want to know how good Candidate A is. We want to know how he or she compares to opponents B, C, and D. In making such comparative judgments, negative information is just as important as the positive. Perhaps you think that Republican front-runner Mitt Romney has only modest strengths. But you might still vote for him as a lesser evil if you think his leading rivals are all truly awful. The same goes for the general election choice between the GOP nominee and Obama. You could end up preferring one of them to the other primarily because they seem to be a lesser evil than the alternative.

Obviously, negative campaign ads are sometimes inaccurate or misleading. But the same is true of positive ones. Candidates routinely exaggerate their supposed virtues and achievements. The reality of widespread political ignorance often allows politicians to get away with making false or misleading claims. But negative claims are no worse in that respect than positive ones.

Another common criticism of negative campaigning is that it leads voters to have a more negative view of the political process and to distrust government. Experts disagree about whether and to what extent this is true. But even if it is accurate, it may not be a bad thing. If voters have a more negative view of politicians and government, it might lead them to be more hesitant about entrusting those same politicians with ever-greater power. The dubious nature of most politicians is one of the reasons why it is important to restrict the size and scope of government.

UPDATE: I should mention political scientist John Geer’s 2006 book finding that negative ads actually give voters more useful information about candidates’ issue positions than positive ads do [HT: VC reader Joshua Spivak, who wrote a nice 2010 Forbes article describing some of the benefits of negative campaign ads].

The AP is reporting that President Obama will give former Ohio Treasurer Richard Cordray a recess appointment today to head the new Consumer Financial Protection Board.  Cordray was nominated to the post some months ago but Senate Republicans have blocked his confirmation due to their opposition to the CFPB’s structure, in particular the lack of meaningful legislative or executive oversight.

If the AP’s report is correct, President Obama’s decision is particularly interesting because the Senate has not officially recessed, at least not according to Senate traditions.  As the AP story notes, the Senate has been having pro forma sessions every three days for the express purpose of preventing there from being a recess during which recess appointments could be made.  Though done at Republican insistence now, the practice of adjourning without recessing began in 2007 when Senate Democrats sought to prevent President Bush from making recess appointments.  According to The Hill, an Obama Administration Justice Department official previously said a recess must be at least three days and a CRS report reported that in the past thirty years no recess appointment has been made during a recess of fewer than ten days.  As the CRS report also notes, thus far President Obama has made recess appointments at a significantly slower rate than either of his two immediate predecessors.

UPDATE: From the LA Times:

While the Constitution gives the president the authority to fill executive branch vacancies when the Senate is in recess, a Justice Department opinion in 1993 implied that a recess of more than three days was needed before the president could exercise the power, according to the nonpartisan Congressional Research Service. No such appointments have been made during recesses of fewer than 10 days over the last 20 years, the service said in a December report.

But there is precedent for appointments made during recesses of fewer than three days — President Theodore Roosevelt made more than 160 recess appointments during a Senate break of less than a day in 1903.

SECOND UPDATE: I just noticed John Elwood beat me to it. As one would expect, his post is more informative and erudite than mine (and, importantly, explains why President Obama may have authority to make the appointment despite the Senate’s pro forma sessions).

THIRD UPDATE: It’s official. Here’s a statement from the White House, The Hill on the GOP response, and commentary from WonkBlog.

It is being reported that President Obama intends to recess appoint Richard Cordray to be the first Director of the Consumer Financial Protection Bureau despite the fact that the Senate has been conducting pro forma sessions for the precise purpose of preventing him from making recess appointments.  Under this procedure, the Senate “gavels in” briefly every three days, calls the house to order, and ordinarily gavels right back out without conducting any business.   The procedure commonly takes less than 30 seconds.  A couple of representative pro forma sessions can be viewed here and here.  The procedure was first used for the purpose of trying to prevent the President from using his recess appointment authority late in President George W. Bush’s second term, and has been used heavily since. 

In October 2010, my former boss at DOJ’s Office of Legal Counsel, Steve Bradbury, and I wrote this op-ed arguing that such pro forma sessions at which no business is conducted do not interrupt a recess of the Senate within the meaning of the Recess Appointments Clause, and thus do not interfere with the President’s recess appointment authority.  I recognize that this is a novel and difficult question of constitutional law, with very few relevant judicial precedents, and there are arguments for both positions. Here is an outline of the basic argument why such pro forma sessions do not interrupt a recess of the Senate.

In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either “the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject.”

Both the Senate and the Executive Branch traditionally have given the Recess Appointments Clause a practical construction that focuses on the Senate’s ability to provide advice and consent. The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate’s ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President”).

One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt’s decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function.

It was evidently intended by the framers of the Constitution that [“recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.

S. Rep. No. 58–4389, at 2 (1905).

The argument is that the sort of pro forma sessions that are now going on don’t give the Senate the opportunity to conduct any business. Indeed, the resolution that preceded this recess specifies that no business will be conducted at these sessions.

Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.

Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President’s exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices.  Cf. McAlpin v. Dana, No. 82–582, slip op. at 14 (D.D.C. Oct. 5, 1982) (“[T]here is no reason to believe that the President’s recess appointment power is less important than the Senate’s power to subject nominees to the confirmation process.”). 

Congress has its share of legitimate ways to curb the President’s use of recess appointments. For starters, the Pay Act imposes limits on the ability to pay officers who have been recess appointed; the Senate may “punish” the President by moving even slower on nominations; Congress may even reduce or eliminate funding for particular programs or agencies. I suspect that some of that will happen in the wake of this recess appointment. These are the sort of ways that the branches have traditionally wrangled over the use of recess appointments.

A caveat:  Although no business was supposed to be conducted at any of these pro forma sessions, I understand that on December 23, Harry Reid actually did some work at one of them—he asked unanimous consent that the House-passed payroll tax holiday extension be considered read three times and made arrangements for a Conference Committee. But I believe the remainder of the sessions have had no business conducted at them, supporting an argument that the recess was not interrupted during that time.

The decision to make Richard Cordray the first such appointment strikes me as a “high roller” move.  Given the role of the CFPB, it seems likely that Cordray will necessarily take many actions that will give rise to justiciable challenges–i.e., actions that will give people the opportunity to challenge in court the legality of his appointment. Given the importance of historical practice in defining the relationship between the Executive Branch and the Senate in this area, it arguably would have been a safer move to make several recess appointments of officers who would be unlikely to take actions justiciable by private parties, to establish the precedent. But for law nerds like me, the Cordray appointment means there may actually be a court ruling on this interesting (and under-explored) subject.

I expect that OLC will be releasing an opinion explaining the legal rationale supporting the appointment soon. Watch this space for more.

UPDATE: Ordinarily, when Congress goes out for recess, the two houses pass a concurrent resolution.  They have to do that because Article I, Section 5, Clause 4 says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”  I hear that the House of Representatives didn’t consent to a recess, and in poking around the Congressional Record, I haven’t located any concurrent resolution for this recess.  If you have definitive information one way or the other, let me know by email. 

Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.

I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment?

I ask that in part because I often encounter a very strange disconnect when originalists discuss the exclusionary rule versus civil damages as a means of enforcing the Fourth Amendment. In discussing the exclusionary rule, most originalists contend that the Fourth Amendment can only be enforced as it was at common law. On the other hand, in discussing civil damages, self-described originalists often seem to go all living constitutionalist: Suddenly the scope of civil damages is just a question of policy, not originalism, and often that means inventing new limitations on damages or following Warren Court-era precedents that did so. I’m curious: Is there a genuine way to reconcile these two sets of beliefs?

Consider the views of Justice Scalia. Scalia has suggested that we should abolish the exclusionary rule, and for years he has tried to move Fourth Amendment law into more of what he sees as an originalist mold. But when it comes to civil damages, Justice Scalia has scoffed at the idea of reinstating the kind of civil liability that existed at common law for search and seizure violations.

The big issue is qualified immunity for Fourth Amendment violations, an idea that was largely introduced in 1967 in a decision by Chief Justice Earl Warren, Pierson v. Ray. Qualified immunity cuts back dramatically on the scope of civil damages for Fourth Amendment violations. And yet the major decision that established the law of qualified immunity against police officers conducting searches and seizures was Anderson v. Creighton, written by — you guessed it — Justice Scalia.

In Creighton, Justice Scalia rejected the idea that the damages that should be available for Fourth Amendment violations should be the damages that were available at common law, before the 1960s-era introduction of qualified immunity for officers. The Creightons argued that qualified immunity should not apply to their Fourth Amendment claim against the officers who searched their home because no such doctrine would have applied at common law, citing Entick v. Carrington. Justice Scalia disagreed:

[W]e have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow [v. Fitzgerald,457 U.S. 800 (1982)], where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. As we noted before, Harlow clearly expressed the understanding that the general principle of qualified immunity it established would be applied “across the board.”

The approach suggested by the Creightons would introduce into qualified immunity analysis a complexity rivaling that which we found sufficiently daunting to deter us from tailoring the doctrine to the nature of officials’ duties or of the rights allegedly violated. Just in the field of unlawful arrests, for example, a cursory examination of the Restatement (Second) of Torts (1965) suggests that special exceptions from the general rule of qualified immunity would have to be made for arrests pursuant to a warrant but outside the jurisdiction of the issuing authority, §§ 122, 129(a), arrests after the warrant had lapsed, §§ 122, 130(a), and arrests without a warrant, § 121. . . .

The general rule of qualified immunity is intended to provide government officials with the ability “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, 468 U.S. at 468 U. S. 195. Where that rule is applicable, officials can know that they will not be held personally liable as long as their actions are reasonable in light of current American law. That security would be utterly defeated if officials were unable to determine whether they were protected by the rule without entangling themselves in the vagaries of the English and American common law.

That’s a good legal argument, based on common rationales such as precedent, the need for a sensible rule as a matter of judge-made policy, and the need to find an administrable rule. But isn’t it a pretty strange argument for an originalist to make?

I don’t mean to pick on Justice Scalia. My question is really about originalism and remedies for constitutional violations more generally. To what extent does an originalist interpretation require adopting the original remedies available at common law for search and seizure violations? And if the right answer is that it does, at least to some extent, does that mean that the Court should constitutionalize the common law civil remedies scheme? And specifically, should an originalist believe that recently-invented doctrine of qualified immunity against police officers for unreasonable searches and seizures falls below the floor of the constitutionally-required scheme of civil damages?