The Volokh Conspiracy

As one of the lawyers now representing the National Federation of Independent Business in the Eleventh Circuit, I was at yesterday’s oral arguments in Richmond. I had a somewhat different take on the discussion of the activity-inactivity distinction. Lyle Dennison’s account of the opening minutes is generally accurate, but there are two important qualifications. One that comes through a bit in his report is the panel’s frustration that counsel for Liberty was not directly answering its questions about the activity-inactivity distinction. So they kept reformulating their questions and prolonging the discussion, which led to the appearance, if not reality, of increasing “bafflement.” Still, there is no question that, during this exchange, the panel conveyed a tone of skepticism about the utility of the distinction.

The initial argument in the Liberty University case ran almost double the allotted time. By the time Solicitor General Katyal got up to argue the Virginia case, Presiding Judge Motz invited him to focus on the standing issue. Near the end of his presentation, however, something very interesting occurred. I wish I had the transcript, but I have transcribed a portion of this exchange from the recording on the Fourth Circuit’s website that you can access here.

Judge Motz said she had a question to ask on the merits: Did not the term “regulate” in the Commerce Clause presuppose (or was predicated upon) some activity to be regulated? Here is what I have taken from the recording:

My problem with that is, and I hear all that, but if you do not have activity, and for purposes now — instead of going back and telling me the sixteen reasons why you think this is an activity — just bear with me that this is not an activity, what do we do with the word “regulation”? Because, you know, that — although it has not been pressed with any great concern here — in the research that we’ve done and apparently has now been done in other cases that you’re going to face so you’re going to have to deal with the question, that has always assumed that there’s a predicate that’s going to be regulated, an activity, if you will, and the regulation is right — the power that Congress has is “to regulate,” and that’s right in the Constitution. That is a constitutional provision. The “activity” isn’t to be sure, but “regulation” would seem to think by John Marshall and others to imply a predicate to be regulated. If you don’t have this activity predicate, what do you do?

To this General Katyal said he did not have an immediate response as it was not in the multiple briefs filed in this case, and that he “would want to have a lot more time to think about it.” She then pressed him by saying “but it was in the Florida briefs” — to which I assume she was referring to the briefs in the Eleventh Circuit that had been filed about a week prior (interesting that she had read them) — and that “maybe you can think a little more about that regulation question” and address it in his rebuttal. Now this struck me at the time as an amazing moment. After receiving a polite “I don’t know” answer from the Solicitor General, Judge Motz basically instructed him to sit down and think about it and come up with an answer.

In his rebuttal, General Katyal said, even if you do think that Congress is regulating inactivity, with which he disagreed, Raich “went so far as to say that Congress can regulate even almost the textual opposite of what’s in the text of the Constitution: commerce in a single state as opposed to among states, that is Congress is permitted to regulate intrastate activity so long as” — at which point, Judge Motz interrupted with “but its the activity, see, that is still tied there. . . . and in our hypothetical situation, that I know you don’t agree with what we are talking about here, is can you regulate something that is not an activity?”

Katyal’s basic response to this was what matters is the effect on commerce, and the activity and inactivity distinction has never been the touchstone, and that under the Necessary and Proper Clause, Congress can fill in the gaps of a regulatory scheme to eliminate barriers. After some additional back and forth about child support orders that seem to require activity, Judge Motz said:

“We know, as I understand it, we wouldn’t have a Commerce Clause argument if Congress had straight-forwardly set up universal health care and required everybody to buy, right?” To which Katyal said “sure.” Judge Motz then replied, “They didn’t want to do that though. That wasn’t, apparently — well in any event, for whatever reason, they didn’t do that, so we don’t have that situation. We have instead this, what we have.” After Katyal replied that there may have been any number of policy reasons for this choice, which are beyond the purview of the courts, and that the Supreme Court says the test for this court is evaluate whether Congress had a rational means, as long as Congress’s means are rationally adopted to the ends, citing McCullough and Comstock. To this she replied: But “for the past fifty years they have attached to that, to the regulation [unintelligable] activity, and that is what we arguably don’t have here. . . and which distinguishes this case from all those cases.” In response, General Katyal again voicedhis disagreement that there was no activity here and asserted the Necessary and Proper Clause.

This whole exchange was very interesting and it was the point where General Katyal clearly had the most difficulty. I thought it was highly significant that Judge Motz returned to this question at the end of several hours of argument that had moved far away from the merits, indicating that this was sincerely troubling her. Now, I am NOT asserting that Judge Motts is going to vote to strike down the individual mandate as unconstitutional, though it is worth remembering that she was the judge who wrote the Court of Appeals opinion in Comstock holding that the sexual predator’s law exceeded the power of Congress under the Necessary and Proper Clause, which was then reversed by the Supreme Court. Perhaps she was merely seeking help in writing an opinion to uphold the mandate,. But she was quite clearly and genuinely bothered – not baffled — by the lack of activity.

While I am at it, let me recommend the brief we filed in the Eleventh Circuit on behalf of NFIB — in which the “regulation” point is made (though I cannot be certain that this was the brief to which Judge Motz was referring). It has some new and different argumentation that, whether or not it is correct, I hope won’t be too baffling. As Bill Murray said in Groundhog’s Day: “Anything different is good.”

That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument:

The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. Those clauses followed several possible formulae. The Necessary and Proper Clause is a specimen of the most restrictive of those formulae: It does not actually grant additional authority beyond that conveyed by other enumerated powers. Rather, it is a recital, designed to inform the reader of two legal default rules: 

First, that express grants of enumerated powers, stated elsewhere, carry with them subsidiary incidental powers (“necessary”). 

Second, that congressional enactments must comply with standards of fiduciary obligation and administrative reasonableness (“proper”).

This understanding of the Clause appears in the legal practices and leading cases at the time the Constitution was adopted, and also in the history of the Clause itself—the records of its drafting, in the ratification debates, in the Supreme Court’s great case on the subject, M’Culloch v. Maryland, 17 U.S. 316 (1819), and in Chief Justice John Marshall’s public explanations of M’Culloch.

Once the meaning of the Clause is understood, the implications for the individual mandate are clear:

The mandate is not “necessary” because power to impose it is not a subsidiary “incident” to Congress’s Commerce Power. The power to compel the purchase of a product is as great or greater than the power to regulate voluntary commerce; therefore the mandate cannot be an incidental power regardless of how helpful it might be. For Congress to possess authority of that kind, it would have to be separately enumerated in the Constitution.

The mandate is not “proper” because it violates the fiduciary obligations of impartiality embedded in the word “proper.” During the debates over ratification, participants recognized that a law chartering a commercial monopoly would be “improper.” A fortiori, compelled purchase from favored oligopolists is improper.

Thus, to the extent that the constitutionality of the individual mandate depends upon the Necessary and Proper Clause, the mandate is unconstitutional.

Besides the Independence Institute, the amici on the brief are Prof. Gary Lawson (BU), Prof. Robert G. Natelson (retired from U. Montana Law; currently a Senior Fellow at the Independence Institute); and Prof. Guy I. Seidman (Interdisciplinary Center Herzliya, Israel). The three professors are among the co-authors of The Origins of the Necessary and Proper Clause (Cambridge, 2010).

From The Advocate (Baton Rouge):

A planned American flag burning at LSU ended before it started when more than 1,000 LSU students and other protestors forced police to intervene before violence broke out.

LSU graduate student Benjamin Haas had planned to burn an American flag at noon Wednesday on the Parade Ground to promote his First Amendment rights and in support of an LSU student arrested last week for stealing and burning a flag.

Haas received a peaceful protest permit from LSU, but he had not yet received a burn permit from the parish yet, so he decided not to burn the flag, according to LSU.

Haas did have a prepared statement to read, but an angry mob mentality took over and LSU Police escorted him out in a police car for his safety before he could talk.

The “angry mob mentality” reference is obviously the author’s own opinion, and this story on a local TV news station’s site reports only that, “Several people tossed water balloons and water bottles at the man. The graduate student was then escorted away by LSU Police.” But while tossing water balloons and water bottles in order to suppress speech (or symbolic expression, whether it’s burning a flag or burning a Koran) isn’t the worst form of thuggery, it is a form of thuggery nonetheless (assuming the press accounts are correct).

Note that if there’s a content-neutral rule that requires a burn permit for open burning of things (other than very small items such as cigarettes, cake candles, and the like), that requirement might well be applicable to flag burning as well. But I’m pretty sure that the bottle-throwers weren’t trying to ensure faithful enforcement of fire codes, but were trying to use violence and the threat of more violence — possibly (depending on the facts) just petty violence, but violence nonetheless — to suppress expression they disapprove of.

I hope the thugs are prosecuted, just as I’m glad that that the earlier flag thief (a different person from Haas, who apparently didn’t steal the flag he wanted to burn) is being prosecuted. Naturally, those who were simply counterdemonstrating are expressing their own views, and have every right to do that. But the line between speaking and throwing bottles at other speakers is a pretty clear line, and it’s the line between free speech (quite possibly highly laudable free speech) and thuggery.

UPDATE: See also this LSU student newspaper article; thanks to commenter Urso for the pointer.

In the post below, I discussed whether it was constitutional to ban gun possession by all people who are under indictment. But in the case in which the U.S. Attorney argued that this was constitutional, no such statute was actually in play. Federal law bars gun possession by felons, 18 U.S.C. § 922(g)(1), but only gun receipt, shipment, and transportation by those under indictment for a felony, 18 U.S.C. § 922(n).

Yet the U.S. Attorney’s office for the Southern District of Alabama indicted Clayton Adams for “knowingly possess[ing]” a gun, “[i]n violation of Title 18, United States Code, Section 922(n),” and argued to the court that “proof of possession would satisfy proof of receipt for the purposes of Section 922(n).” But that can’t be right. As the court pointed out, in its April 18 decision,

Though there may be circumstances where evidence of possession is sufficient to prove receipt, the terms “possess” and “receive” are not synonymous.... Discussing the meaning of “receipt” under 18 U.S.C. § 922(h), a predecessor statute, the Eleventh Circuit held: “’Receipt,’ under 18 U.S.C. § 922(h), is interpreted broadly and includes any knowing acceptance or taking of possession of a firearm.” United States v. Griffin, 705 F.2d 434, 437 (11th Cir. 1983) (emphasis added). As the government points out, a number of circuits have held that proof of possession, either actual or constructive, is sufficient to prove receipt. E.g., United States v. Manni, 810 F.2d 80, 84 (6th Cir. 1086); United States v. Clark, 741 F.2d 699, 703 (5th Cir. 1984); United States v. Martin, 732 F.2d 591 (7th Cir. 1984); Goerlich, 729 F.2d at 1170; United States v. Lipps, 659 F.2d 960, 961 (9th Cir. 1981); United States v. Turnmire, 574 F.2d 1156, 1157–58 (4th Cir. 1978). Still, those cases do not address the sufficiency of an indictment that fails to track the statutory language and charges a person under indictment with “possessing,” rather than “receiving,” a firearm.

The statute criminalizes receipt of a firearm after indictment. Even assuming that one who possesses a firearm necessarily received it first, receipt is a discrete occurrence while possession implies a continuous act. A person who acquires a firearm and is later indicted continues to possess the firearm, but he does not receive the firearm again by virtue of that possession. A person under indictment who accepts or takes possession of a firearm after the indictment has both possessed and received a firearm. When the indictment charges only possession, either scenario is possible, but only the latter violates the statute. Thus, an indictment that alleges only possession of a firearm by a person under indictment is insufficient to charge a violation of 18 U.S.C. § 922(n).

I would go further and say that in most cases possession of a gun after an indictment is not, by itself, sufficient evidence to prove — beyond reasonable doubt — receipt after an indictment. Nor is it by itself sufficient, I think, to create probable cause to believe that the gun was received after the indictment (probable cause is the standard required for a grand jury to indict).

But in any event, to indict a grand jury must actually find (in a nonadversarial hearing, and after hearing only the prosecutor’s side of the evidence) that there is probable cause to believe that a crime has been committed — here, that the defendant actually received the gun after being indicted. The indictment in this case did not reflect that.

I think § 922(n) is an unconstitutional restriction on Second Amendment rights, since the right to possess a gun must include the right to acquire the gun, free of government prohibition, and since — as I argued in the earlier post — Second Amendment rights aren’t lost just because one has been indicted. But, independently of that, § 922(n) just doesn’t sweep nearly as broadly as the prosecutor argued. (Note: The federal bans on gun possession and gun receipt are technically limited to “possess[ion] in or affecting commerce” or receipt of “any firearm ... which has been shipped or transported in interstate or foreign commerce”; but in practice these jurisdictional requirements have been read in such a way that they are almost always satisfied.)

May someone be barred from possessing a gun simply because he has been indicted for a felony? The U.S. Attorney’s office for the Southern District of Alabama so argues. Here’s their entire argument (citations to Heller omitted):

In Heller, the Supreme Court held that the Second Amendment provides an individual with a right to possess and use a firearm for lawful purposes, such as self-defense within the home. However, the Supreme Court also made clear that “the right secured by the Second Amendment is not unlimited.” The Supreme Court emphasized that “nothing in [its] opinion should be taken to cast doubt on the longstanding prohibitions of possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.[” These] regulatory measures provided by the Court were intended as examples of constitutional restrictions to the right guaranteed under the Second Amendment, and were not intended to be an exhaustive list. Thus, like other constitutional rights, the individual right protected by the Second Amendment is not absolute, but is subject to appropriate restrictions.

Restricting the ability to possess firearms by an individual under indictment for a crime punishable by imprisonment for a term exceeding one year is a constitutional restriction of that individual’s Second Amendment right. Nothing in Heller, or any subsequent binding opinion, suggests otherwise.

I think this argument is unpersuasive: That the Second Amendment right is not unlimited doesn’t tell us what the permissible limitations are, and that the Court specifically authorized restrictions on gun possession by felons and the mentally ill doesn’t tell us how the Second Amendment should be read with regard to people who are neither felons nor mentally ill. The argument gives no explanation for why people under indictment should be analogized to felons and the mentally ill.

And indeed, an indictment is a very different matter from a conviction, or even a finding in a temporary restraining order hearing. (Lower courts have concluded that the federal ban on gun possession by people who are under temporary restraining orders is unconstitutional, partly because the orders are supposed to be based on a preponderance-of-the-evidence finding that the target has engaged in violence or threat of violence, or seems likely to engage in it.) An indictment requires no finding of guilt beyond a reasonable doubt, or even by a preponderance of the evidence. Rather, it requires only (1) a prosecutor’s seeking the indictment, and (2) the grand jury concluding that there is probable cause to believe the defendant is guilty of the charged crime, based solely on the prosecutor’s statement of the incriminating facts, without hearing any exculpatory evidence or hearing from the defendant’s side at all. That’s all it takes for an indictment; and I don’t think that can be enough to deny the defendant a constitutional right.

Maybe an indictment plus a judicial finding of dangerousness, following an adversary hearing, might suffice; I can’t speak to that, though I should note that an indictment plus a judicial finding of sufficiently great dangerousness, following an adversary hearing, does suffice for denying the defendant bail and keeping him locked up for trial. But an indictment alone shouldn’t be enough. Nor can the prohibition be saved on the grounds that the indictment is only temporary, since the defendant will usually soon be either convicted or acquitted (or have the charges dropped against him). Denying someone the tools needed for effective self-defense for several months is still a substantial burden on the right to self-defense.

This having been said, I should note that lower courts are split on the subject. Two courts have held that a mandatory no-firearms condition for pretrial release of people accused of possessing child pornography was unconstitutional, in the absence of “an independent judicial determination” of “whether such a condition [was] reasonably necessary in his case to secure the safety of the community.” See United States v. Arzberger, Nos. 08 Cr. 894 (AKH), 08 Mag. 1876 (JCF), 2008 WL 5453739, at *10–11 (S.D.N.Y. Dec. 31, 2008), and United States v. Kennedy, No. CR08-354-RAJ-JPD, 2008 WL 5517643 (W.D. Wash. Nov. 25, 2008). On the other hand, two cases applying state constitutional rights to keep and bear arms have taken a different view, with regard to laws generally banning gun possession by people under indictment for any felony. See State v. In, 18 P.3d 500, 503 (Utah Ct. App. 2000), and State v. Winkelman, 442 N.E.2d 811 (Ohio Ct. App. 1981), though the latter case , upheld a ban on gun possession by people who have been indicted, though noting that it imposes only a “temporary limitation,” with provision for relief “[s]hould the temporary limitation work an undue hardship upon the indicted party”). Splitting the difference, State v. Spiers, 79 P.3d 30 (Wash. Ct. App. 2003), struck down a ban on ownership of guns while under indictment, but partly because other laws that allowed a ban on possession of guns under those circumstances were “sufficient to protect public safety”:

It should be kept in mind that, separate from the challenged ownership provision, the State may prohibit a defendant from possessing guns. RCW 9.41.040(1)(b)(iv) (contains prohibition on possession that is unchallenged here); CrR 3.2(d)(3) (on showing that defendant poses substantial danger). Thus, in analyzing Spiers’s rights, this court examines whether it is reasonably necessary to prohibit Spiers’s gun ownership rights in addition to his gun possession rights.

But while the first cited provision covers anyone “free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in RCW 9.41.010,” Wash. Rev. Code Ann. § 9.41.040(1)(b)(iv) (West 2003) (current version at Wash. Rev. Code Ann. § 9.41.040(2)(a)(iv) (West Supp. 2009)), the second is limited to situations where there is “a showing that there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice,” Wash. Sup. Ct. Crim. R. 3.2(d)(3) (West Supp. 2009). It is therefore not clear to what extent the Spiers court approved of bans on possession by all indictees, only by those indicted for serious offenses (a fairly large category defined in Wash. Rev. Code Ann. § 9.41.010(12) (West 2003), which covers both violent offenses and some nonviolent offenses), or only by those who “pose[] substantial danger.”

So says Judge Royce Lamberth in his opinion, DL v. District of Columbia (D.D.C. May 9), speaking about the behavior of the D.C. counsel’s office. Thanks to Kris Baumann and Zoe Tillman (Blog of the Legal Times) for the pointer.

The Fourth Circuit panel may have been baffled by the activity/inactivity distinction, as Orin reports, but it’s really not a new idea.  The distinction between activity and inactivity is not an alien concept to the law.  We see this distinction where the law recognizes the difference between acts of commission and acts of omission, for instance, or where there are legal (or even constitutional) distinctions made between prohibitions or limitations on conduct, on the one hand, and mandated conduct, on the other.  Furthermore, if one accepts a classical liberal conception of individual liberty, the former are a qualitatively lesser infringement upon liberty than the latter.  This does not, by itself, establish that the activity/inactivity distinction should be recognized as a limitation on federal power under the Interstate Commerce and Necessary & Proper Clauses.  Nor does it suggest that it is always easy to draw the line separating activity from inactivity, as there may be closes cases here (as elsewhere).  It does, however, suggest that there should be a bit less bafflement about the underlying concept.

An obvious example where the law has long recognized a distinction between activity and inactivity is the duty to rescue.  Under the common law, simple inactivity — a failure to rescue, by itself — can never be a source of liability.  Rather, the duty to rescue only arises when one engages in certain activities — that is, when one takes certain affirmative steps, such as by creating an ultrahazardous situation entering a certain type of relationship with the individual in need of rescue becoming a common carrier, or taking initial steps toward rescue.  And only after certain activities are engaged in can there be liability.  Whether certain activities are, or should be, the source of a duty breach of which could result in liability has prompted significant debate, but the fact that the common law required activity of some sort before a duty could arise is clear.  In other words, under the common law, activity could create the duty but inactivity could not.

We can also see analogous distinctions made in some areas of constitutional law.  Under current First Amendment doctrine, for example, the government’s ability to compel speech is greater once a speaker engages in a relevant activity  than when a would-be speaker has done or said nothing.  So, for instance, the government can mandate that those engaged in dangerous activities post warnings or that potentially misleading speech be cured by disclaimers.  But the government lacks any general ability to simply mandate speech across the board.  Again, the law recognizes that engaging in certain sorts of activity may result in legal obligations where simple inactivity, doing nothing, does not.

One way to think about the activity/inactivity distinction is to recognize the difference between prohibiting conduct or imposing conditions on conduct, on the one hand, and mandating conduct on the other.  We see this distinction in the Supreme Court’s current federalism jurisprudence.  The federal government may prohibit (preempt) states from engaging in certain activities under the Supremacy Clause.  It may also subject states to generally applicable regulations if states engage in those activities that would make them subject to such rules, e.g. if states become market participants, employers, property managers, etc.   The federal government may not, however,  simply commandeer states to engage in activities because that is what the federal government wants.  That is, once states engage in certain activities, the federal government may be able to regulate how those activities are conducted, but it  may not mandate that states engage in certain activities in the first place.  Even under the 14th Amendment, we see plenty of areas in which Congress may require states to administer state-run programs in a particular way, so as to ensure equal protection or prevent the infringement of fundamental liberties, but few if any in which “inactive” states are mandated to do something in the first place.

As noted above, the idea that there is a fundamental difference between a prohibition or conditional regulation, on the one hand, and a mandate, on the other, follows from a classical liberal conception of individual liberty.  From this perspective, a naked mandate — a requirement that one engage in an activity — is a greater imposition than a prohibition or a conditional regulation.  Why?  Think of it this way.  At any given moment, an free individual can engage in a near-infinite set of activities (n).  A government prohibition reduces this set by one (to n–1).  A conditional regulation has a similar effect, in that it imposes a burden on one activity, but it does not otherwise reduce the set of options.  A mandate, on the other hand, requires that at a given moment the mandated individual engage in the required activity, to the exclusion of all else.  If a person were mandated to wash his car, that time cannot be spent doing other things.  The loss of opportunities is near infinite — indeed, it is n–1 — insofar as the mandate precludes the individual from doing other things simultaneously.  Therefore, a simple prohibition or conditional regulation is a rather minor limitation on individual liberty, whereas a mandate is not.

The same logic applies to economic mandates.  A free person can spend a dollar on a nearly-infinite set of things.  A prohibition on the purchase of a good or service reduces the set by one.  You may not be able to buy X, but you still have a near-infinite set of options for how to use the dollar.   A conditional regulation — if you buy X, you must also buy Y or may only buy X if it meets certain conditions — still does not impose a categorically greater imposition.  You still have a near-infinite set of alternative uses for that dollar.  When the government mandates that you purchase something, be it health care, a fitness club membership, broccoli, or whatever, you lose the ability to spend that dollar on anything else.  Your set of options for that dollar has been completely extinguished, and the set of opportunities has been definitively reduced.  This does not mean that mandates are necessarily unconstitutional, only that they are qualitatively different in a way that helps us understand the distinction between regulating activity and mandating activity (which is just another way of saying “regulating inactivity”).

[A quick note on taxes.  Taxes have the same effect as a mandate.  This is why taxes are viewed with such hostility and suspicion, even if they are necessary.  It is no accident that, in McCulloch v. Maryland, Chief Justice Marshall called the power the tax the “power to destroy,” or that the founders felt the need to separately enumerate, and constrain, the taxing power.]

To be clear, my argument in this post is not that an activity-inactivity distinction is self-evidently imposed by the Constitution (though I believe such a distinction is consistent with current precedent and ought to be adopted), or that the individual mandate should be held to be unconstitutional (though I believe that as well).  My point here is simply that the activity-inactivity distinction is not some alien invention of libertarian academics, and not qualitatively different from distinctions we see in the law and our legal tradition.  Whether this means the distinction should be incorporated into (or made explicit within) existing enumerated powers doctrine is a separate question for another time.

A notice on the website for the U.S. Court of Appeals for the Sixth Circuit announces that the three-judge panel to hear the appeal in Thomas More Law Center v. Obama, another challenge to the constitutionality of the individual mandate, will consist of Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and District Court  Judge James L. Graham, of the Southern District of Ohio, sitting by designation.  The argument is scheduled for the afternoon of June 1.  Audio of the argument will be posted on the court’s website later that day.

[Thanks to Professor Kent Barnett for the tip.]

The individual mandate challenge in the Fourth Circuit drew three judges appointed by Democrats, two by President Obama. Since James McReynolds retired from the Supreme Court in 1940, I believe that no judge appointed by a Democratic president has recognized any identifiable judicially-enforceable limits to Congress’s power to regulate interstate commerce [I wrote that in haste, and as I was driving to preschool, a couple of recent examples occurred to me. I think all these examples occurred in the context of criminal laws and were based on Lopez/Morrison, and were of course lower court judges, with all of the Democratic-appointed Supreme Court Justices recognizing, thus far, no practical limits on the commerce power.]. That these three judges will vote to uphold the mandate, the signature policy achievement of a Democratic president and Congress, and do so unanimously, is almost a foregone conclusion, and, for reasons explained here, the question of whether three Democratic judges think that the activity/non-activity distinction is persuasive is entirely irrelevant to the ultimate outcome of the litigation.

I do find it amusing, thought, that, as Orin reports, “Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned ‘activity’ as a crucial factor, and the Constitution itself does not mention the word.”

I don’t think that the Democrats want to fight this battle over the 18th or early 19th century understanding of Congress’s power to regulate interstate commerce.

UPDATE: For the benefit of those who can’t be bothered to clink on the link to my previous post, here is the argument in nutshell: “What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.” The five Republican Justices on the USSC are not in any practical way bound to follow the “best” interpretation of precedent, but they will not follow a wholly implausible one. Regardless of what the Fourth Circuit judges think, the inactivity/activity distinction is a plausible one, and whether the majority on the USSC follows it will come down to a variety of non-legal factors, along with one very important legal factor: can the defenders of the law persuade at least one of Justices Kennedy, Alito, Scalia, and Roberts that upholding the law doesn’t mean giving Congress plenary power to regulate everything and anything.

FWIW, I can easily see the USSC voted anywhere from 8–1 to uphold the law to 5–4 to invalidate it. The latter scenario becomes most plausible if the USSC doesn’t rule until 2013, and in the meantime the GOP wins the presidential elections in 2012, keeps the House, and takes the Senate.

The challenge to the constitutionality of the individual mandate is based heaviily on a proposed distinction — one that I believe was first articulated two years ago by our own Randy Barnett — that Congress can regulate “activity” but not “inactivity.” I’ve expressed my own puzzlement as to what this distinction is supposed to mean. When Randy and I debated the constitutionality of the mandate in January, however, Randy poked fun at my puzzlement on the ground that “only a law professor” could fail to understand such a common-sense idea. Based on today’s first appellate argument on the constitutionality of the mandate, it looks like appellate judges may have the same problem. Lyle Denniston reports:

One thing about the fate of the new health care law emerged vividly in its first challenge Tuesday in a federal appeals court: the challengers cannot defeat the law in court unless they sharpen their argument that Congress has set out in a revolutionary new direction to control Americans’ personal lives. They have built their challenge almost entirely on the premise that Congress can regulate “activity,” but cannot regulate “inactivity.” But that attempted distinction, so clear in the eye of the challengers, seemed fundamentally baffling — and thus probably unconvincing — to the three judges who heard just over two hours of argument in the Fourth Circuit Court in Richmond.. . .

Circuit Judge Diana Gribbon Motz was persistent, but ultimately unsuccessful, in trying to get Liberty University law school dean Matthew D. Staver to say just what “activity” means in talking about Congress’s power to regulate the Nation’s commerce, including the health care part of commerce. Staver tried to make the notion clearer, saying that it was “something you could see, touch,” or “something tangible.” People who don’t want to buy health insurance, he argued, are engaged only in “idleness,” and that is something beyond Congress’s reach.

But Motz shot back that, when Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned “activity” as a crucial factor, and the Constitution itself does not mention the word, so, she kept asking, just what is it? “We’re trying to get you to give us some help,” the judge said, “with this distinction you think is so important.”

Circuit Judge Andre M. Davis wondered if “a mental process” is “activity,” obviously implying that a person’s specific choice not to buy insurance might be something Congress could regulate, even if “activity” were a necessary predicate. And, Davis asked, “You talked about ‘inactivity.’ Where in the cases do you find that?”

For years, the European Parliament has done everything it could to catch the US Congress’s eye.  Long relegated to second-class status in Europe, the European Parliament craved the respect it hoped would come from a dialogue with its “counterpart” in Washington.

Well, congratulations, guys.  You’ve succeeded.

What did the trick was the Parliament’s role in reopening the transatlantic fight over airline reservation data. After years of negotiation and at least three separate agreements on the topic, the EU and US agreed in 2007 to a long peace, one that would last until 2014.  But the European Parliament seized on a dubious technicality to reject the peace. (The technicality: only 24 of the 27 EU members had finished their lengthy treaty approval process when the Parliament’s authority to approve new treaties took effect.)

The Parliament declared that it would only approve the deal if the EU got to regulate US law enforcement practices, saying that American “use of PNR data for law enforcement and security purposes must be in line with European data protection standards, in particular regarding purpose limitation, proportionality, legal redress, limitation of the amount of data to be collected and of the length of storage periods.”

That got Congress’s attention, because airline data has been the key to many successful operations to apprehend or thwart terrorists hoping to attack Americans at home. Even the Washington Post condemned the European Parliament’s irresponsible grandstanding.

But say what you will, those European Parliamentarians certainly know how to bring us together.  In a moment of bipartisanship, the ranking Democrats and Republicans from both House and Senate Homeland Security committees have introduced joint resolutions instructing DHS not to yield an inch in talks with Europe. (Here’s the press release.)

My favorite line in the resolution is the one where Congress “urges the Department of Homeland Security to not enter into any agreement that would impose European oversight structures on the United States.”

Actually, I thought we did that in 1776. But if it was worth doing once, it’s probably worth repeating.

Here’s a surprise. The Obama administration has unveiled a program that, if widely implemented, could dramatically improve immigration enforcement – sending millions of illegal immigrants home and reducing greatly the incentives for illegal entry – all without arresting and deporting any more people than we do today.  It could mean immigration enforcement that is effective, tough, and compassionate.

And no one has noticed.

This has been the Holy Grail of immigration enforcers for a generation. So far, they’ve pinned their hopes on E-Verify, a voluntary electronic ID check used to enforce the immigration employment laws.

E-Verify works, up to a point. When employers adopt E-Verify, the usual illegal worker scam of making up a Social Security Number doesn’t work. E-Verify checks to see whether the new hire’s name and SSN actually belong together. If they don’t match, the new hire has to correct his Social Security records if he wants to keep working.

So far, so good.  Not everyone wants E-Verify to succeed, though. Business hates it, and has fought hard to keep it from becoming mandatory.  With federal encouragement, several states have made the program mandatory for local businesses, but the Solicitor General’s office recently reversed that federal policy and asked the Supreme Court to overturn state E-Verify laws.  If Congress doesn’t act, the SG’s coup is likely to succeed, for reasons I’ve given before.

The real limit on E-Verify’s success, however, is identity theft, as critics ranging from the General Accountability Office to the Florida Chamber of Commerce are quick to point out. E-Verify can be fooled if an illegal worker assumes the name and social security number of a real person. E-Verify has struggled with that problem for years.  It’s had some success, mainly by adding ID photos to the its database, but it is still dogged by the threat of identity theft.

That’s why I was so surprised when the Obama administration solved the problem, more or less overnight.

Continue reading ‘Don’t Tell Anyone, But the Administration Just Solved the Immigration Enforcement Problem’ »

With no less than three (!) likely or declared Republican presidential candidates who are broadly speaking in the libertarian camp–Mitch Daniels, Gary Johnson, and Ron Paul–libertarian political activists should pick their favorite of the three and work for his nomination, rather than waste their time on energy on pursuing ballot access for an inevitably marginal Libertarian Party candidate. Even if none of those three candidates gets the nominations (Daniels seems to have the best chance), libertarians seem to have their best opportunity to influence the Republican Party’s direction since at least the Barry Goldwater campaign. Time for the Libertarian Party to fold shop?

UPDATE: Note that even if none of the three candidates noted above gets the nomination, or even comes close, the eventual nominee typically absorbs activists from competing campaigns into his. Let’s imagine that candidate Romney winds up with a campaign staff with 20% of so libertarians, who in turn get 20% or so of the plum political appointments in his administration. That would certain be an improvement over the Bush and Obama years, no?

FURTHER UPDATE: Ilya assessed Daniels’ libertarian bona fides here. And Daniels outs himself as a libertarian (at least by Charles Murray’s definition in What it Means to be a Libertarian) here.

What a way to enter this world. From In re Leroy R. (N.Y. App. Div., decided today):

Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about August 31, 2010, which, following a hearing pursuant to Family Court Act § 1028, granted the application of respondent father to release the subject child to his custody on condition that the child not be left alone with the respondent mother, and subject to the father demonstrating to the “reasonable satisfaction” of the petitioner agency (ACS [Administration for Children’s Services]) that there are appropriate arrangements in place to ensure that the child will not be left alone with the mother, unanimously reversed, on the law and the facts, and the application denied, without costs.

Continue reading ‘“The Father’s Graphic, Profanity-Laced Death Threats Were Directed at ACS Staff and Hospital Personnel Within Hours of His Son’s Birth”’ »

The case is Ex parte Roque Cesar Nido Lanausse, 2011 PR App. LEXIS 497, 2011 WL 1563927, and here’s what Prof. Bob Cottrol (George Washington University School of Law) reports about it (paragraph breaks added):

This was a three judge panel at the intermediate appellate court. One judge dissented, but Westlaw did not publish the dissent. Appellate Court is essentially ruling on statutory grounds and on Constitutional grounds.

Court says that the Commonwealth government’s position is that having arms is a privilege and not a right. Court rejects this [first] on grounds that licensing statute states that fear for safety is a valid reason for getting a license to carry and that trial court did not have authority to specify criteria other than fear on part of applicant. Fear on part of applicant is essentially determined by applicant. If I am reading decision correctly (and my Spanish is imperfect) intermediate appellate court is essentially converting Puerto Rico’s statute into a shall issue statute through its reading of statute, i.e. if applicant state’s that he is in fear for his safety, permit to carry must be issued, as long as individual is not a prohibited person.

Second this Court is adopting a reading of Heller and McDonald as giving constitutional protection to a right to bear or carry. Goes into Scalia’s sensitive places as evidence that some places are not sensitive and therefore there is a right to carry in those places. Court goes on to incorporate second amendment in Puerto Rico. Court is using early 20th century insular cases (only rights that are fundamental apply to inhabitants of non-incorporated territories — I actually have strong questions about whether or not the insular cases should be read as applying to Puerto Rico in the modern context since Puerto Ricans have been US citizens since 1917 and people born in Puerto Rico were given native born citizen status in the early 40s, but that’s another story). In any event court says second amendment is fundamental right of American citizens and that includes residents of Puerto Rico. Court remanded case to trial court for action consistent with intermediate trial court’s opinion.

Couple of points as to where this is likely to go in future. As decision is it seems to me to be unreviewable in federal [district or appellate] court, because the statutory interpretation gives independent and adequate Commonwealth grounds for the decision. It will probably be appealed to the Supreme Court of Puerto Rico. If Nido-Lanausse prevails in Puerto Rico’s Supreme Court that should be the end of it. If Commonwealth prevails, he potentially could petition for cert to US Supreme Court.

This potentially could be a good case for second amendment right to carry. Appellant has sterling record, medical doctor, general in the National Guard, probable service in Iraq or Afghanistan, relatively high crime rate in Puerto Rico. Anyhow we have a US court deciding that Heller and McDonald protect a right to carry.

If anyone has more information on the case, I’d love to see it. I should note that, while I have a Westlaw download of the Spanish-language original containing the 2011 WL 1563927 citation, I can’t seem to download the case myself in Westlaw using that citation; it might be unavailable given UCLA’s Westlaw subscription. [UPDATE: But it is available at 2011 PR App. LEXIS 497; thanks to Aaron Priest for the pointer.] Nor do I know of any place online that has the case available for free, or in a way that would leave one contractually free to repost it. If anyone has a pointer to such a location — or a PDF of the opinion itself that I can post — I’d love to hear about it.

No, it’s not The Onion. It’s an actual letter, in which Bin Laden’s adult sons “demand an inquiry . . . into the fundamental question as to why our father was not arrested and tried but summarily executed without a court of law.” From the letter:

If OBL has been killed in that operation as President of United States has claimed then we are just in questioning as per media reports that why an unarmed man was not arrested and tried in a court of law so that truth is revealed to the people of the world. If he has been summarily executed then, we question the propriety of such assassination where not only international law has been blatantly violated but USA has set a very different example whereby right to have a fair trial, and presumption of innocence until proven guilty by a court of law has been sacrificed on which western society is built and is standing when a trial of OBL was possible for any wrongdoing as that of Iraqi President Sadam Hussein and Serbian President Slobodan Miloševic’. We maintain that arbitrary killing is not a solution to political problems and crime’s adjudication as Justice must be seen to be done.

For what it’s worth, Bin Laden was formally indicted on criminal charges in the Southern District of New York in 1998. If he had wanted an arrest, a criminal trial, and the presumption of innocence, he certainly didn’t lack the opportunity.

I blogged a few days ago about the Doe v. Silsbee Indep. School Dist., in which a cheerleader was removed from the cheerleading squad because she had refused to cheer for a player who (she alleged) had raped her. The cheerleader and her parents sued, claiming (among other things) that the school district’s action violated her First Amendment right not to speak. The District Court and the Fifth Circuit Court of Appeals held for the school district, and the Supreme Court refused to hear the case. I concluded that the Fifth Circuit decision was correct.

Various readers have asked what I think about the District Court’s order that the plaintiffs pay the defendants’ attorney fees, on the grounds that the lawsuit was frivolous. (That’s the standard for requiring plaintiffs to pay the defendants’ attorney fees in such cases against the government.)

I think the District Court was mistaken; though the plaintiffs’ claim was rightly rejected, it wasn’t frivolous: There was a plausible argument that the First Amendment should protect the student’s rights in such a situation, though I think it was rightly labeled a losing argument. And the District Court’s analysis struck me as inadequate:

When determining whether a claim is frivolous, unreasonable, or without foundation, a district court should consider (1) whether the plaintiff established a prima facie case, (2) whether the defendant offered to settle, and (3) whether the court held a full trial. Myers v. City of West Monroe, 211 F. 3d 289, 292 (5th Cir. 2000). The court must ask whether “the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.” Stover, 549 F. 3d at 997–98 (quoting Jones v. Tex. Tech Univ., 656 F. 2d 1137, 1145 (5th Cir. 1981)). As to the first factor, the Court concludes that the Plaintiff failed to establish a prima facie federal claim. In its order dismissing Plaintiff’s suit with prejudice, the Court found that Plaintiffs had failed to allege any facts to support a finding their daughter was denied her rights under the Constitution. As to the second factor, Defendants made no offers to settle. Finally, there was not a full trial as the Court granted Defendants’ motion to dismiss for failure to state a claim. Having considered these factors, the Court finds that Plaintiffs’ Section 1983 action was without foundation. Therefore, as prevailing defendants in an unreasonable Section 1983 action, Defendants Lokey and McInnis are entitled to recover reasonable attorney’s fees.

The three numbered factors are just factors to be considered in the ultimate inquiry, which is whether “the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.” And I don’t see why the court concluded that this standard was satisfied. (For similar language related to the other part of the attorney fees award, see here.)

But for some reason, the plaintiffs’ lawyer seems not to have opposed the motion for attorney fees before the District Court. (“Plaintiffs have not filed a response to the motion.”) The plaintiffs’ lawyer did argue, after the motion for attorney fees was granted, that “Defendants are premature in their motion for fees and costs since they are only entitled to fees and costs as prevailing parties,” and that they wouldn’t be prevailing parties until the appeal was decided; but I don’t see how that justifies the failure to oppose the motion for attorney fees in the first instance, before it was decided.

Moreover, while the Notice of Appeal noted that the plaintiffs were appealing from a grant of attorney fees, as well as from the dismissal of the case, the plaintiffs’ briefs on appeal never said anything about the fees. The District Court was thus handicapped in its decisionmaking by the lack of argument from one side; and the plaintiffs’ claims about the fees were waived before the Court of Appeals because they weren’t discussed in the briefs. So while I think the District Court erred on the attorney fees question, the error may have been partly caused by plaintiffs’ lawyer; and the error might have been corrected on appeal.

Thanks to commenter Tom for pointing all this out, though I’ve checked the documents for myself.

I blogged last week about a Georgia judge’s refusal to let a Muslim man wear a kufi (a sort of cap) in court. The man believes the headgear is religiously required, and the Georgia judicial system’s announced policy is to allow religious headgear — whether Muslim, Jewish, or related to any other religion — but the judge nonetheless didn’t let the man wear the cap.

Now the Atlanta Journal-Constitution reports that the judge has changed his mind:

“The Court finds through its own research that there is a basis in the Quran for both men and women to cover their heads as a religious observance,” Judge James T. Chafin wrote in an order obtained by the AJC. “Accordingly, the Court will permit the defendant to wear his hat in the courtroom as a valid religious observance.”

But while I think the result is right, for reasons I mentioned earlier, the judge’s reasoning strikes me as flawed (assuming the newspaper article accurately captured that reasoning). It’s not the job of secular judges to “find through [their] own research” whether “there is a basis” in a religious book for a religious practice. Rather, when a person asks for a religious accommodation, the question is whether that person sincerely holds the religious belief; a judge may not try to decide for himself what the religious belief is consistent with a religious book. As the Supreme Court has held, “Courts are not arbiters of scriptural interpretation.”

And this has to be the case, unless you want judges to determine whether there is a basis in the Torah for a prohibition on eating chicken with cheese (there isn’t, though Orthodox Jews treat such mixtures as not kosher) or for a mandate to wear a yarmulke (there isn’t, though Orthodox Jewish tradition for centuries has been to wear headgear when out in public), or whether the Bible can be reasonably interpreted as requiring that one observe Sunday as the day of rest, or a wide range of other religious questions. Our legal system has rightly concluded that secular judges ought not be making such decisions.

Of course, even if a religious belief is sincerely held, this doesn’t mean that it must or should be accommodated. A judge may reject such a request on the grounds that granting the request would substantially impair a compelling government interest, or would unduly burden an employer, or — in many states — would violate a religion-neutral generally applicable law. But that too is true regardless of whether a court thinks “there is a basis” for the religious practice in a religious book; accommodation requests may and should be denied (under the standards I just noted) even for clearly scripturally grounded religious practices. The question is whether the rule substantially burdens a sincerely held religious belief, and whether there’s a sufficient secular reason for the burden, not whether the Bible or the Koran supports the religious belief.

Before:

After:

Prof. Howard Friedman (Religion Clause) has the story, with links:

In a strict reading of Jewish laws on modesty, the Hasidic newspaper Der Tzitung, published in Brooklyn, has a policy that it will not publish photos of women. The Washington Post reported yesterday on the controversy that this has stirred when the paper altered the now-famous photo of Hillary Clinton, the President and others in the White House situation room watching the progress of the mission that killed Osama bin Laden. The paper’s version (shown by Failed Messiah blog) removed Hillary Clinton and the only other woman in the photo, Audrey Tomason. It turns out that this violates the White House terms distributed with the photo that: “The photograph may not be manipulated in any way....” Der Tszitung has issued a statement (full text from Washington Post) reading in part:

The First Amendment to the Constitution guarantees freedom of religion.... In accord with our religious beliefs, we do not publish photos of women, which in no way relegates them to a lower status. Publishing a newspaper is a big responsibility, and our policies are guided by a Rabbinical Board. Because of laws of modesty, we are not allowed to publish pictures of women, and we regret if this gives an impression of disparaging to women, which is certainly never our intention. We apologize if this was seen as offensive.

Well, yes, they do have the First Amendment right to refuse to publish photos of women. Nor do I think the White House terms are likely to preclude that, since the photograph is likely a government work and not copyright-protected, and even if it’s owned by the photographer, the use is likely to be a fair use, given the free distribution of the unaltered work. But we have the First Amendment to think that, if this policy really represents the denomination’s religious doctrine, (1) it’s a pretty zany policy, and (2) it doesn’t speak well of the opportunities that the religious denomination allows to its female members (despite the newspaper’s protestations to the contrary).

I’m pleased to have gotten the reprints of my Houston Law Review piece, Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis. It was part of their Frankel Symposium on environmental cost-benefit analysis; the main piece was Ricky Revesz and Michael Livermore’s “Retaking Rationality: Two Years Later”, a follow-up to their (two-year-old) book, Retaking Rationality: How Cost Benefit Analysis Can Better Protect the Environment and Our Health.

I’m going to post the text of my article in installments over the next few days, though I encourage you to consult the full version on SSRN, or the version in 48 Hous. L. Rev. 79 (2011), for the footnotes. The first installment follows below the fold.

Continue reading ‘Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis’ »

My friend and Richmond lawprof Kevin Walsh attended the oral arguments this morning in the Fourth Circuit’s mandate cases, and he passes on this report:

It was a long morning for everyone, but it appeared to be a good morning for the federal government. Judge Motz, presiding, allowed the first lawyer to speak (counsel for Liberty University) to use as much time as he wanted, subject only to the condition that the federal government would receive an equal amount of time. He ended up using 45 minutes, more than double the 20 minutes allotted. All three judges on the panel (Judge Motz, Judge Davis, and Judge Wynn) appeared more skeptical of the challengers’ arguments and more accepting of the federal government’s. Some of the questions directed toward the federal government seemed designed more to figure out how to write an opinion upholding the individual mandate, rather than whether to uphold it. Most of the argument and questioning in Virginia’s case (second to be argued) focused on jurisdiction. Acting Solicitor General Katyal encountered very little resistance to his argument that Virginia’s Health Care Freedom Act did not provide the Commonwealth with standing to challenge the individual mandate. There was no mention of the possible absence of statutory jurisdiction.

The audio will be posted on the Fourth Circuit’s website at 2pm.

Over at Instapundit, I’ve scheduled the following post for tomorrow morning.  Here is my question.  Is this kind of sliding scale bargaining an example of just regular old bargaining, or it this specifically Coasean bargaining?  My interest here is not the policy at issue; I want to know whether this is Coasean bargaining to the efficient tradeoff point.

COASE BARGAINING OVER THE DEBT CEILING AND THE DEFICIT?: According to Grover Norquist, the Republicans in Congress plan to bargain with the President on a sliding scale. Writes Norquist at the Corner: “Second, and this is sheer genius, Boehner has put a sliding-scale price on debt-ceiling increases. Hey, Obama, you want to buy a debt ceiling increase of, say, $2 trillion that would take you past the next election? Fine, the going price is two trillion dollars in real spending cuts. Cannot afford that and hold your spending coaliton in place? Fine, you can buy a month of debt-ceiling relief, worth about $125 billion, for the reduced price of $125 billion in spending cuts. The price of the debt-ceiling hike is the the same amount — or more — of real spending cuts.”

I haven’t quite decided whether this is clever or too-clever by half. And I’m not quite sure if this bargaining is truly “Coase” bargaining in the fashion of the law and economics final exam my class took yesterday morning.

Update:  Looking at the initial comments, let me ask this a little differently.  What would you change in the facts of the situation in order to turn this into Coasean bargaining?  The comments are interesting.  I agree with Justin and others that what Coase wrote in the Problem of Social Cost is not exactly what the terms often refers to these days, and even beyond how the term is used in law and economics today, there’s a further “slangy” sense in which it is sometimes applied to things like — oh, recently someone wrote about Coasean bargaining with Libyan generals to defect versus getting blown up by a missile.  So I mean it in a very loose sense here.  But what would you change in the story and how in order to make it Coasean?

The recent NYT story on law schools’ use of grade-contingent, merit-based scholarships to recruit 1Ls has prompted substantial discussion in the blawgosphere (including here and here).   At some schools, a substantial proportion (if not a majority) of the incoming 1L class may receive merit scholarships that are contingent upon the maintenance of an above-average GPA.  Given mandatory law school curves, this virtually ensures that a significant number of students will lose their scholarships after the first year.  Is this sort of policy fair? Are incoming students aware of the conditions placed on their scholarships?  Law School Transparency has also called for greater disclosure of law school scholarship policies, a proposal endorsed by U.S. News Robert Morse.

Is change afoot?  Will law schools become more transparent, or alter their scholarship policies?  CWRU School of Law’s incoming dean, Lawrence Mitchell, announced last week that he  will suspend the law school’s policy requiring scholarship recipients to maintain GPAs above those required to remain in good academic standing for currently enrolled and incoming students.  He explained the change this way:

Our policy was grounded in the sensible notion that students who are granted merit-based financial aid should be expected to continue to perform at the same level that led us to grant that aid. However, with mandatory curves, a significant number of students who do perform acceptably well find that they drop below the line for a variety of reasons unrelated to effort. Especially in times of economic uncertainty and hardship in the legal market, I felt it was both inhumane and unproductive to continue a policy that, instead of improving student performance, placed additional pressure and created undue anxiety among students that could hinder their performance.

A new study by researchers at Duke University found high levels of methane contamination in drinking water associated with hydraulic fracturing in Pennsylvania and New York — contamination that could be the cause of the infamous “flaming faucets” featured in “Gasland.” On the other hand, the study found no evidence “no evidence of contamination from chemical-laden fracking fluids, which are injected into gas wells to help break up shale deposits, or from “produced water,” wastewater that is extracted back out of the wells after the shale has been fractured.”

This new study is sure to heat up the debate over hydraulic fracturing. More from “Dot Earth” and ProPublica.

An interesting article from the Silicon Valley Mercury News on people using the bankruptcy code to strip-off completely underwater second mortgages.  The author of the article seems to think this is a chapter 13 thing, but what I think it is using Dewsnup v. Timm to strip off completely underwater second mortgages.  Dewsnup left unresolved the question of whether a completely underwater second mortgage should be considered an allowed secured claim with a value of zero (and so still a valid lien under Dewsnup) or simply not an allowed secured claim.  If it is treated as the former then this might provide some relief for underwater homeowners with second mortgages without needing a cramdown power.  My understanding is that the majority rule seems to be that followed in California–namely that it is not an allowed secured claim at all.  Although I could be wrong about that.

As an amendment to a broader bill on education. Details here, from the Austin American-Statesman. Campus carry already passed the House as a stand-alone bill, so it seems likely that the House will concur with the Senate amendment. Texas Governor Rick Perry has repeatedly indicated his support for the measure. The floor discussion of the amendment should be available here, in RealPlayer format (although the Senate site warns that the stream has compatability problems with RealPlayer 14).

If enacted, the bill would only authorize carry by persons who have already been licensed by the State of Texas to carry throughout the state. Permit applications require fingerprinting for the background check, and passing a safety training class. Permits are only issued to persons aged 21 or older. Of course a licensee may not carry a firearm while intoxicated. Texas Penal Code 40.035(d). For a guide to the Texas concealed handgun laws, which in many respects are more restrictive than the handgun carry licensing laws of many other states, see this document from the Texas Department of Public Safety. 

For discussion of the policy issues involving campus carry, see my article Pretend ‘Gun-Free’ School Zones: A Deadly Legal Fiction, from the Connecticut Law Review. As the article observes, campus carry has been the rule for years at public colleges and universities in Utah, and at Colorado State University, among others. There have been no reports of problems.

Tags: Campus carry, Texas

Lyle Denniston reports that the audio from the oral argument in the Fourth Circuit’s individual mandate litigation will be posted at 2pm. We don’t know the panel yet, so that will be part of the mystery. For my money, the two most interesting things to listen for will be 1) How much time will be spent on the merits, as compared to the standing and other procedural issues, and 2) The judges’ views, to the extent we can tell from the argument, on what the proper test is for when a law is “necessary and proper” for carrying out an enumerated power. Stay tuned, as always.

UPDATE: I just read DOJ’s main merits brief in the Fourth Circuit litigation, and it strikes me as much stronger than its briefing in the district courts. DOJ’s briefing in the district courts seemed rather puzzling at times; it seemed to me that DOJ was emphasizing some arguments that were weak while deemphasizing arguments that were strong. The briefing in the court of appeals seems significantly stronger.

where I am guest-blogging.

Old Myths Die Hard (Long after historians debunked the notion that the Supreme Court’s liberty of contract jurisprudence arose from Social Darwinism, this notion continues to appear in history books as fact.)

On a Certain Type of Historical Error (Historians reading present-day political alignments into the the past, and making assertions about historical figures based on related stereotypes).

Looking for a Thesis Topic (The interstate migration of African Americans within the South in the late 19th century is a topic begging for some scholarly attention.)

I’ve been making and eating this soup — one of my favorites — recently, and I thought I’d blog the recipe.

Serves 6 to 8, depending on what size bowls you decide to ladle out.

Ingredients:
2 lbs. persian cucumber.
1 1/2 to 2 cups chopped onion (the prechopped onion available in stores is fine).
1 tsp. garlic.
1 or 2 vegetable boullion cubes, or equivalent powder or paste.
4 tbsp. oil or butter.
1 bunch green onions.
(Optional) 1 package dill.
(Optional) 1 cup nonfat milk (though milk with some fat is fine, too).
Salt, garlic powder, and pepper to taste.

1. Saute garlic in oil or butter in a medium soup pot, for about 30 seconds.
2. Add onion to the pot, sautee until soft and translucent (about 5 minutes).
3. Cut cucumber into chunks while the onion is cooking. No need to peel them or remove the seeds, if you’re using persian cucumbers. (The normal cucumbers tend to have bitter skins and tougher seeds, so I can’t vouch for your being able to just use them without peeling and removing the seeds.)
4. Add cucumber, boullion cubes, and 2 cups water to the pot (or just use 2 cups of vegetable stock instead of the water and the boullion cubes, if you prefer).
5. Simmer for 30 minutes.
6. Chop green onions while the soup is simmering.
7. Remove from heat, and add 1 cup milk or 1 cup water, as you prefer.
8. Puree the soup, either with a hand blender or in a blender, until the cucumbers are all chopped up.
I prefer to puree only until all the noticeable cucumber chunks are gone, so that the soup will still be a bit rough. But you can puree longer, for a smoother soup.
9. Add all the green onions, or, if you prefer, add half now and save half to put on the soup when you serve it.
10. Chill overnight.
11. Add salt, garlic powder, and pepper to taste.
12. Serve with chopped dill (if you like that).

At The New Yorker blog, a very good discussion of the legal issues in the OBL attack. As Khatchadourian notes:

What was true in Iraq and in the Second World War also applies in the ongoing conflicts in Afghanistan and Pakistan. Targeted air strikes are status-based operations. The drone strikes are status-based operations. Raids conducted by Special Forces to kill key militants—as in the case of Abu Musab al Zarqawi, who was killed in Iraq by Special Forces working under the command of General Stanley McChrystal—are status-based operations. A status-based target can become a non-combatant (that is, illegal to kill) only if he is wounded to the point where he no longer poses a threat, or if he is in the process of surrendering. This is why Eric Holder said, during a recent Congressional hearing, that if bin Laden “had surrendered, attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that, and therefore his killing was appropriate.” In such a circumstance, the law suggests that the onus is on the target to immediately revoke his combatant status. Soldiers do not have to wait.

The executive director of Human Rights Watch, Kenneth Roth, has criticized the White House for its public handling of the killing. He recently wrote on Twitter, “White House still hasn’t clarified: OBL ‘resisted’ but how did he pose lethal threat to US forces on scene? Need facts.” This may be a worthwhile thing to know for broader ethical or policy or tactical reasons, but it is not the most pertinent question when judging the action against our existing military laws. The key legal question is not whether bin Laden was armed before he was killed, or even whether or not he posed an immediate “lethal threat,” but whether he was “positively identified” before the trigger was pulled, and whether Holder is accurate when he says that “there was no indication” that bin Laden was actively attempting to surrender. Those are the more relevant facts.

That is correct and very well put (my emphasis above).  I have two modest criticisms of Khatchadourian’s fine piece.

One is that the US executive order banning assassination is much narrower than many commenters seem to understand, to judge by the amount of ink spilled over asking about the meaning of assassination and so on.  The term is not defined in the order itself, and the US government’s interpretation — stated in 1989 by then-Legal Adviser to the State Department Abraham Sofaer and re-stated in 2010 in current Legal Adviser Harold Koh’s ASIL speech — is that the assassination only applies to a killing that is otherwise unlawful.  If the killing is otherwise lawful — such as the targeting of a lawful target — then it does not apply.

If that looks like the assassination ban does no independent work, since it is merely a ban on something that is already unlawful, that is perfectly correct.  It is also consistent with the history of the executive order, which seems to have been a 1970s concession to a Congress investigating the CIA to affirmatively state something in a single sentence with an undefined term, easy to say and not much at stake except rhetorically.

The second is to emphasize that surrender is an act that requires completion, and is harder to accomplish that one might have thought merely reading the law in the abstract.  I emphasize this because I have had so many conversations privately in the last week with JAG or former JAG who have advised on the rules of engagement on which Khatchadourian is writing.  These are not high level political decisions; these are the rules for relatively routine, tactical engagements undertaken every week in Afghanistan by special ops teams.  Those rules have been worked out over years — and when the operation is intended to be lethal, the reliance is upon speed and surprise, and killing the target before the confusion lifts — possibly including before he is fully awake. These JAG emphasize the risks involved in “pausing” operations that depend fully on surprise in order to see if someone is trying to surrender for real; they have no legal obligation to do so — and don’t.  The manifestation of clear intent to surrender is much more complicated and much more fraught than it might seem to a human rights monitor merely reading off an abstract rule.

These folks are concerned that the traditional legal interpretation of surrender might be eroded if the Bin Laden operation were to cause a highly technical act in tactical operations to become politicized.  They worry particularly about interpretations given by high level political appointees who, worried only about putting the best light on the OBL operation, wind up making implicit concessions on the rules of surrender that are not the current understanding of the law for operations involving many ordinary but lawful targets down the road. One would not want, for example, an Eric Holder defending the OBL attack by saying something like — had he so much as raised a hand, we would have stopped to ask if he was surrendering, but he didn’t so we didn’t.  It is not the legal standard, and might undermine future combat missions by implying that it is.

(See also the communication to Ben Wittes at Lawfare by an active duty Navy JAG, writing in his personal capacity.)

Fellow Blogger Orin Kerr, in several comments on my posting yesterday, has asked some questions deserving a response:

David,

If DHS is just making a request and has no legal authority to enforce its request, then of course Mozilla is free to ignore the request. At the same time, I wonder: If you were in charge of enforcing the criminal copyright laws, what would you do about the many sites that exist to facilitate copyright infringement? What steps do you think are fair and appropriate ones — if any?

A couple of thoughts about this. First, about being “free to ignore the request.” If, say, a representative of the Department of Health and Human Services wrote to the Dean of a Law School and said: “We hereby request that you not hire any African-Americans or Jews for your faculty — oh, and not to worry, you’re free to ignore our request,” we’d all be (appropriately) outraged. Heads would surely roll. A request from the government is not like a request from your neighbor or colleague; it carries additional weight. Especially, I think, when it comes from the Dep’t of Homeland Security. It should carry additional weight; as a citizen, I care a great deal about the security of my homeland, and if the government asks for my help in that task, I’m inclined to give it, or at least to consider it. I happen to regard that as a simple consequence of citizenship — not that I’ll do whatever the government asks me to do, but that I will consider it. The more frequently they ask for things they have no right to ask for, the less inclined I am to take their requests seriously.

The DHS has no more legal authority to request that Mozilla disable MafiaaFire than does the DHHS to ask my Dean not to hire blacks or Jews. None.

If I were in charge of enforcing the criminal copyright laws, what would I do? I would not violate the due process rights of website operators by asserting a right to “seize” anyone’s domain name whenever some copyright holder persuaded a DHS functionary that the site was infringing copyright. I would design a process to actually “adjudicate” these claims — maybe not (almost definitely not) full-blown federal litigation, but a procedure whereby the purported infringer has an opportunity to be heard before a true neutral, and where little things like “burden of proof” and the like are respected. ICANN’s UDRP proceedings at least serve as some sort of model — by no means the right one for this task, but a starting point for discussion.

Finally, if I were in charge of enforcing criminal copyright law, I would recognize that enforcing copyright law, while important, is less important, as it were, than the Internet. If we’re going to have situations in which government agents are permitted to screw up the basic and fundamental principles of Internet addressing, they should be restricted to situations in which the stakes are really, really high. Enforcing the private rights of music and entertainment companies is not one of those situations.

In today’s Washington Times.

Reuters reports that Senator Charles Schumer (D-NY) believes the federal government needs to create a “no-ride” list for Amtrak to prevent potential terrorist attacks on trains.

No team likes to get swept out of the playoffs. Just ask the top two seeds in the NHL playoffs, both of which were swept in the second round this week. Rarely, however, does a team respond as the Los Angeles Lakers have in the past few minutes. It was a pathetic display for a once proud franchise.

UPDATE: Here’s one report, and here’s an early account from the LA Times:

The game then started to turn chippy as [the Lakers’ Lamar] Odom shoved [Dallas Maverick] Nowitzki for a flagrant foul 2 and Odom was tossed from the game. Nowitzki made the technicals. The referees were concerned about losing control and called a quick foul on [Laker] Ron Artest to let the players know to dial things down.

But it didn’t work. [Dallas’] Jose Barea drove the lane and [Laker] Andrew Bynum elbowed him in the ribs while he was in the air. Barea landed hard on the court and Bynum was also thrown out of the game when a flagrant foul 2 was called with the Mavericks up by 32.

SECOND UPDATE: Here’s the video.

The Dep’t of Homeland Security is indeed at it again. I’ve blogged about their campaign on behalf of US copyright holders to “seize” the domain names of websites (irrespective of the actual location of the site, provided that it is registered in one of the databases of a US domain name registrar or registry). It’s a really troubling new phenomenon — even putting aside how downright stupid, and outrageous, it is that DHS, which even in light of last week’s developments obviously has other important work that it should be attending to, is getting into the copyright-enforcement game.

But it appears to be getting worse. Now, they’re going after software providers. As reported by Nate Anderson at arstechnica, DHS recently approached the folks at Mozilla and “requested” that they remove/disable a popular Mozilla add-on, “MafiaaFire.” MafiaaFire is a (pretty simple) domain name redirector; if the website operating at wereallydon’tlikeIPlawyers.com moves to wewerejustkidding.org, a user with the MafiaaFire add-on who types “http://wereallydontlikeIPlawyers.com” into his/her browser window is automatically redirected to wewerejustkidding.org.

You can see what they’re unhappy about, I suppose; sites that have had their domain names “seized” have managed to get up and running in a matter of hours after the “seizure” by switching over to new domain names, and things like MafiaaFire make it easier for users to find the new site.

But screwdrivers, pencils, automobiles, bunsen burners, Frisbees, and many, many things are used by Bad Guys to do their Evil Deeds; that does not give the government the right to restrict the availability of those items (absent some specific statutory basis for doing so). It’s conventionally referred to as “the Rule of Law.” DHS has absolutely no legal authority (of which I aware, at any rate) to order Mozilla to take this action with respect to a lawfully-made and lawfully-distributed product that has, obviously, any number of perfectly legitimate uses, and their “request” is an outrageous end run around their legal authority. It pisses the hell out of me that they can get away with stuff like this (and that I’m paying them to do it, as a taxpayer).

Mozilla, thankfully, has not complied (this according to Harvey Anderson, a Mozilla lawyer); Mozilla sent DHS a set of pretty reasonable questions about what they were doing (to which DHS has not responded), viz.:

We’ll see if DHS responds. My bet is they won’t. They should really be ashamed of themselves.

[Thanks to Andrew Metcalf for the pointer]