Free Minds & Free Markets


Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Happy Saturnalia!

We continue the longstanding Volokh Conspiracy of celebrating this ancient Roman holiday.

Today is Saturnalia, an ancient Roman holiday with a long tradition here at the Volokh Conspiracy, which we are now continuing at our new home with Reason. Admittedly, it's only a tradition in so far as I have put up a post about it every December 17 for the last several years. But, by blogging standards, that's a truly ancient tradition indeed.

The Encyclopedia Romana has a helpful description of Saturnalia:

During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters' clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that "During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside."

This year, as usual, we have no shortage of strong applicants for the position of Lord of Misrule. The incumbent president and many other politicians of both parties are formidable candidates, indeed. Even more may emerge as the campaign season for the 2020 election heats up.

Happy Saturnalia to all the friends, Romans, and Volokh Conspiracy readers out there!

New Draft Article: "Implementing Carpenter"

From my forthcoming book, The Digital Fourth Amendment.

I recently posted a new draft article, "Implementing Carpenter," on the Supreme Court's blockbuster June 2018 decision in Carpenter v. United States. The article consists of two draft chapters of a forthcoming book, The Digital Fourth Amendment, that will be published by Oxford University Press. I'd love your critical feedback. I found these chapters tough to write, and the line-drawing exercises Carpenter requires very challenging. But I did my best to make them and justify them, and I'd rather you throw rotten fruit at me now instead of when the books comes out. So if you have feedback, please send it on.

The document I posted has two chapters. The first chapter, The Carpenter Shift, explains how Carpenter takes the Fourth Amendment in a new direction and explains the new state of the law. After explaining the conceptual basis of Carpenter and why it's a considerable departure from prior law, the chapter tries to reduce Carpenter to a doctrinal test. Based on a close read of the opinion and the broader theory of equilibirum-adjustment driving it, the chapter argues that Carpenter applies to non-content Internet records otherwise left unprotected when three conditions are met. First, the records must be new kinds of records of the digital age. Second, the records must not have been generated by meaningful voluntary choice beyond what is necessary to participate in modern life. Third, the records must be of a type that can reveal an intimate window into a person's life.

The second chapter, Implementing Carpenter, applies those general principles. It first focuses on the challenging question of how to identify a Carpenter search in a particular case. How do you measure a privacy invasion? Does a search occur when an intimate fact was actually revealed in an investigation? Does it occur when the government gets enough records that the revealing of an intimate fact would be expected, the so-called Mosaic Theory? After going through the pros and cons of different approaches, the chapter concludes that the best way to measure an invasion of privacy is a source rule: Any government collection of any amount of Carpenter-protected information, no matter how small or unilluminating in a particular case, should be treated as a search.

Finally, the chapter applies Carpenter to several important cases. It identifies two kinds of Internet non-content metadata that should trigger Carpenter: to/from information about messaging services such as e-mail and text messages, and monitoring the websites a person visits. When the government wants to conduct surveillance of who a person e-mailed or messaged, or wants to install a monitoring device to see what websites a person is visiting, collecting that metadata should be a Fourth Amendment search. It also identifies a few examples of metadata collection that should not trigger a search: acquisition of voice call metadata, the IP addresses a person was assigned while connected to the Internet, and records of ride-sharing services such as Uber of Lyft. The chapter concludes by arguing that downstream analysis such as datamining should not itself trigger a search, although the prospect of downstream analysis can change whether a particular record is protected under Carprenter and can trigger the Fourth Amendment upstream for all compelled acquisition of that kind of record.

Comments very welcome. Thanks as always for reading.

(Cross-posted at Lawfare)

Understanding the New Obamacare Decision, Texas v. United States: Part II

[Part of a continuing series of guest posts by Prof. Josh Blackman (South Texas College of Law). -EV]

Part I of this series placed Texas v. U.S. in the broader context of the eight years of Obamacare litigation. This second installment will analyze the technical aspects of Judge O'Connor's opinion concerning the individual mandate by responding to five common criticisms about the case.

[1.] How can the district court declare the individual mandate unconstitutional? Congress already repealed the mandate through the Tax Cuts and Jobs Act of 2017 (TCJA).

In December 2017, following the enactment of the TCJA, President Trump and congressional Republicans boasted that they repealed Obamacare's individual mandate. They didn't. Rather, the law reduced the ACA's "shared responsibility payment" to $0. Section 5000A(a) of the ACA provides that "[a]n applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month." Starting in 2019, individuals qualified individuals who fail to maintain a certain level of health insurance—known as "minimum essential coverage"—will no longer be assessed a penalty. This first point is not controversial.

[2.] The individual mandate, with a $0 penalty, is not a mandate at all. What is there left to challenge?

This criticism is intuitive: how can a mandate continue to exist if there are no legal consequences for disobeying? This argument fails as a matter of law and policy.

First, the federal government has long taken the position that a mandate, in the absence of a penalty, will still compel some people to purchase insurance. For example, a 2008 Congressional Budget Report—before the ACA was enacted—considered how "[p]ersonal [v]alues and [s]ocial [n]orms," apart from a monetary penalty, also enforce compliance with a requirement to purchase insurance. CBO recognized that "compliance [with the mandate] is generally observed, even when there is little or no enforcement of mandates." Why would a person comply with a legal mandate that is not enforced? CBO observed that "[c]ompliance, then, is probably affected by an individual's personal values and by social norms." For example, "[m]any individuals and employers would comply with a mandate, even in the absence of penalties, because they believe in abiding by the nation's laws."


Concurring Opinions Signs Off

The once-great group law blog is ending its run.

Concurring Opinions, one of the popular general law professor group blogs that I read daily for years, has decided to close up shop. This isn't a big surprise, as the once-vibrant group blog hadn't had much content recently.

I'm reminded of Matt Bodie's question in 2005 about what the future of law blogs would be -- a question asked, ironically, in response to the fouding of Concurring Opinions:

We still seem to be in the early stages of the blogosphere. But I'm wondering, particularly with respect to law blogs, what the future holds. Here are a few possibilities as to directions we'll take in the future.
1. We're in the "Far and Away" land rush phase, and pretty soon the continent will be filled up.
2. We're in the early Internet Boom phase, and a big shakeup is coming down the pike.
3. Blogging is a transitional technology that will lead to new forms of connectivity and creativity. Current bloggers will lead the way to these new formats.

I had some predictions of my own on this in 2005, too.

I'm not entirely sure how to best describe what that future has become, although there does seem to be less interest in blogging among law professors these days. Part of that may be the rise of Twitter. And part of it may be that blogging didn't bring the career payoffs that a lot of law professors thought it would when the "blogosphere" was young, at least relative to the time it took.

Understanding the New Obamacare Decision, Texas v. United States: Part I

[A guest-post by Prof. Josh Blackman (South Texas College of Law), a noted expert on Obamacare-related litigation. -EV]

Recently a federal district court found that the Affordable Care Act was unconstitutional. The reaction was swift and brutal. One prominent law professor at Harvard described the case as "a political objection in legal garb," and concluded that "there is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress," and uphold the law.

Another Yale law professor likened the decision to the anti-canonical Dred Scott decision, which "distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America's two major political parties was unconstitutional." A Slate columnist wrote that the decision should "force us to reconsider the role of the courts." She added, "perhaps it's an apt moment to re-examine first principles and think about why we believe in the judicial branch in the first place."

That decision, of course, was Florida v. HHS, decided in February 2011. Judge Roger Vinson of the Northern District of Florida found that Congress lacked the power to enact the Affordable Care Act's individual mandate. Further, he found that protections for people with preexisting conditions—known as guaranteed issue and community rating (GI and CR)—could not be severed from the unconstitutional mandate. And, of course, we know that in 2012, the Supreme Court narrowly upheld the ACA.

At times, covering the Affordable Care Act reminds me of the film Groundhog Day: the same script repeats itself over and over again, in slightly differently contexts. I wrote about the history of NFIB v. Sebelius in my first book, Unprecedented. And, in my second book, I wrote about the second attempt to Unravel the Affordable Care Act with King v. Burwell. Now, two years into the Trump Presidency, we are in the third phase of the never-ending efforts to undo Obamacare.

In Texas v. United States, the Northern District of Texas found that the Affordable Care Act (ACA) is unconstitutional. The opinion had two main components. First, because the Tax Cuts and Jobs Act of 2017 (TCJA) reduced the ACA's shared responsibility payment to $0, the mandate to purchase insurance could no longer be saved as a constitutional fundraising tax. Second, he found that the remainder of the ACA could not stand without the "essential" mandate. Therefore, the entire law was set aside.

I agree with the first part of the ruling. Judge O'Connor was correct to find that the individual mandate can no longer be saved. However, I part company on the second part. The court should have only set aside the mandate, as well as the GI and CR ratings. The remainder of the ACA can be severed. I detailed these views in a four-part series on this case (I, II, III, and IV), and in draft article forthcoming in the Texas Review of Law & Politics. (Judge O'Connor cited the latter in FN 34.)

Eugene was kind enough to let me write several posts about this important ruling. This first installment will place Texas v. United States in the context of the past eight years of Obamacare litigation. In many regards, Judge O'Connor's ruling resembles that of Judge Vinson. In both cases, a coalition of conservative Attorneys General filed suit in a favorable division in a favorable district—Pensacola and Ft. Worth, rather than Tallahassee and Austin. And, both judges found that the individual mandate and core provisions of the ACA were unconstitutional. Moreover, both courts declined to issue a nationwide injunction, such that the case could be appealed in the normal course without immediate disruption to the federal government.

However, there are also critical differences. First, Judge Vinson rendered a major constitutional law decision on a question of first impression: could a mandate to purchase insurance be supported by Congress's powers under the Commerce and Necessary and Proper Clauses. The Florida court went out on a limb to find that Congress lacked such a power. This decision was without precedent. Ultimately, his opinion was vindicated by a majority of the Court, but at the time, Professors Tribe and Amar (referenced above) savaged the decision. Indeed, the activity/inactivity distinction remains controversial in constitutional discourse.

In contrast, Judge O'Connor's decision is far less audacious. His constitutional analysis concerning the mandate was supported by a majority of the Supreme Court. Critics can disagree with the factual predicate of his ruling—that the individual mandate survived the TCJA—but his constitutional analysis stands on a firm foundation. Moreover, Judge O'Connor's ultimate conclusion on severability—that the entire ACA must fall if the mandate is unconstitutional—was supported by the NFIB joint dissenters. Assuming the intent of Congress in 2010 controls the severability analysis—I think it does, but the question is closer than many have recognized—Judge O'Connor's sweeping ruling has the foundation of four votes on the Supreme Court.

There is a second critical difference: timing. When Judge Vinson issued his ruling, the Affordable Care Act had not yet gone into full effect. At that juncture, there were some preliminary programs that had been rolled out, and the Administration was preparing to implement the remainder of the law. Seven years later, the ACA has been fully woven into the fabric of the American health care system. Pulling the emergency brake on the entirety of the law would be logistically impossible. For this reason, and many others, Judge O'Connor was prudent not to issue a nationwide injunction, as the states had requested.

Third, the political dynamics are fundamentally different. In 2010, Obamacare's unpopularity, fueled by the surging Tea Party, led to the Republicans winning the House of Representatives, and taking more seats in the Senate. The Republican party quickly coalesced around the legal arguments advanced by Randy Barnett and other members of this blog. In the words of Jack Balkin, the arguments concerning the mandate went from Off the Wall to On the Wall. 2018 is very different. The popularity of the ACA, in particular the GI and CR provisions, is well established. Republican politicians who voted to repeal the ACA struggled to defend their votes during the midterm elections. Many of these members lost their seats, in part at least, due to the efforts to unravel Obamacare. The Republican opposition to the law has faded significantly.

Fourth, we have very different executive branches. The Obama Administration was singularly focused on defending the ACA at every juncture. First under the leadership of Deputy SG Neal Katyal (then-SG Elena Kagan wanted nothing to do with the case), and later with Donald Verrilli at the helm, the administration mounted a coordinated effort to save the law. Now the situation is quite different. Then AG Sessions declined to defend the constitutionality of the mandate, and concluded that GI and CR cannot be severed.

Fifth, we have very, very different Presidents. President Obama viewed the ACA as the cornerstone of his domestic legacy. President Trump, in contrast, has targeted the repeal of Obamacare since he was on the campaign trail—but not really. He still favors protection for pre-existing conditions and other popular aspects of the law, but he opposes the unpopular aspects. Shortly after the decision, President Trump issued two celebratory tweets that maintain this ambiguous posture.

Obamacare bad. Pre-existing conditions good.

The sixth difference may be the most important. Had the Supreme Court set aside the ACA in June 2012, there would have been zero political appetite to restore the law in any regard. Republicans would have claimed the decision as a political victory, and moved on. Perhaps Mitt Romney would have won the election—we may never know.

2019 is every different. If the Supreme Court were to hold that the law's GI and CR provisions were unconstitutional, I suspect that Congress would re-enact those provisions with broad bipartisan support. There is no constitutional problem with Congress enacting these standalone insurance reforms, without the mandate. Indeed, to avoid any disruption, the Supreme Court could delay its ruling by a single tax year to give Congress a chance to act. (Justice Alito floated this option during oral arguments in King v. Burwell.)

Moreover, states can enact their own GI and CR provisions as a fall back in the event that Texas is victorious. Many states already have restrictions that are more protective of those under the ACA. Finally, unlike with King v. Burwell, where states were at risk of losing millions in federal funding, here the states can be proactive and ensure no gaps in coverage. In other words, now that Congress zeroed out the penalty, the political fallout from a decision declaring that GI and CR were also unconstitutional would likely be short-lived.

Seventh, in 2012, we had no idea what the Roberts Court would do with the ACA. However, NFIB told us what the Justices thought of the constitutionality of the mandate. And, recent reporting about the case suggests that Chief Justice Roberts was willing to set aside the mandate, as well as the GI and CR, but could not persuade Justice Kennedy to follow along with this narrower path. Now, Justice Kennedy is gone, and he is replaced by Justice Kavanaugh, who—based on the earliest of lights—may have a stronger respect for stare decisis than did his predecessor.

It is not unthinkable for a majority of the Court to hold that the predicate of the saving construction no longer holds—the exaction does not raise revenue. Therefore, the GI and CR provisions cannot be salvaged. This sort of decision would reaffirm the Commerce and Necessary and Proper analysis in NFIB—an important rule I agree with. Moreover, that ruling would demonstrate the saving construction was a proper application of the judicial role, rather than an ad hoc exception to avoid a politically unpopular ruling. (Six years later, I have come to grips with the bulk of the saving construction, but still cannot accept the Chief's analysis of direct taxes.)

In future posts, I will break down the technical details of Judge O'Connor's 55-page opinion. Here, my sole aim was to place this decision in the broader context of the ACA litigation, which I have been carefully covering for nearly 8 years.

A "National Declaratory Judgment" in the ACA Suit?

What is the scope of the remedy in Texas v. United States?

For some reason, everybody is talking about severability. (Which means it is a good day, like every day, to read Kevin Walsh.) In addition to all the discussion of the merits and severability in Texas v. United States, something should be said about the remedy. Several propositions:

1. It is good that the court did not issue a national injunction. (Multiple Chancellors.)

2. Don't get too comfortable: the court might well have issued a national injunction, given its other conclusions; it did not rule on all the counts in the complaint (so it might yet issue an injunction); and at any rate, after issuing a declaratory judgment, a court retains the power to issue injunctive relief. (28 U.S.C. § 2202.)

3. What the court issued was a declaratory judgment—a remedy that is the judgment itself, without any further remedy such as damages or an injunction. This remedy can be used to decide whether a patent is valid, or who owns a copyright, or whether an insurance contract requires the insurer to pay. A declaratory judgment is not merely advice from a court, a kind of mild suggestion. It is a binding decision of the court. (The Myth of the Mild Declaratory Judgment.)

4. Even though a declaratory judgment is a binding determination, it is not an order to the parties enforceable by contempt. The injunction, by contrast, being an equitable remedy, is enforceable by contempt. (This difference is explored more in Myth ) But since a declaratory judgment can be the basis for a subsequent injunction, it's not a permanent distinction—it's the difference between contempt in one step or in two. And we presume that the government will comply with judicial judgments.

5. So here's the gist so far: the district court gave a declaratory judgment, which is a binding decision, but not one immediately enforceable by contempt. But what is its scope? Whose rights and legal relations are determined by this declaratory judgment—those of every person in the United States, or only the those of the plaintiffs? The federal district court in Texas didn't say. And the question is enormously important but also understudied.

The answer depends, I think, on background understandings of Article III and the judicial power. If you think (as I do) that the judicial power granted by Article III is fundamentally about resolving the dispute between the parties, then there is an easy answer: the declaratory judgment is a binding determination as between the parties, but it does not control the relationship of the parties to non-parties. (There are of course still doctrines of precedent and preclusion—I am focusing on the effect of the remedy qua remedy.) But for those who don't adopt this understanding of the judicial power, it's a real puzzle. Why isn't a declaratory judgment a "national declaratory judgment," either automatically or at least whenever the issuing district court wants it to be?

Here's some wisdom on this from John Harrison:

Declaratory judgments concerning invalidity may seem like invalidation, but a declaration cannot make a previously valid law invalid, precisely because of its declaratory nature. FN: Declaratory judgments that conform to the federal Declaratory Judgment Act cannot be said to invalidate statutory rules for another reason. The Act provides that a court may declare the rights or other legal relations of parties. 28 U.S.C. § 2201(a) (2012). The legal relations of parties, like the right to performance under a contract, are specific to the parties. The invalidity of a statutory provision is general, and so not the proper subject of a declaratory judgment. It is, however, common for federal courts to declare that statutory provisions are invalid in the abstract. That practice is difficult to reconcile with the statute, but it is widespread.

More broadly, these questions about the effect of a declaratory judgment raise the issue about whether a declaratory judgment action should be thought of as essentially anti-suit. Here is a suggestive passage from the remedies casebook that Emily Sherwin and I are authors of (Ames, Chafee, and Re on Remedies, 2nd edition, pp. 678-679):

Modern procedural rules permit plaintiffs to sue directly for declaratory relief without seeking any further remedy against the defendant, provided there is an actual controversy between the parties. In other words, like an "anti-suit injunction," the declaratory judgment can be seen as an "anti-suit" remedy. The effect of the judgment is to settle the rights of the parties. The judgment constitutes a determination on the merits, and, by issue preclusion, precludes relitigation of the issues actually decided by the court. It also lays the foundation for further actions for damages or injunctive relief, if these remedies become necessary.

6. In analyzing the effect of the declaratory judgment, then, there are two mistakes to avoid. One is saying the government can ignore it because it's "only" a declaratory judgment. That is incorrect; it is a real judgment, and unless stayed by the district court or an appellate court it deserves the adherence accorded to any other judicial judgment. The other is saying the government is bound to follow the judgment with respect to everyone, party or not. In effect, we would be treating the remedy as a "national declaratory judgment." That, too, is incorrect. To give such a remedy is beyond the judicial power.

The government is bound to follow the judgment (unless, as it should be, it is stayed pending appeal), but only with respect to the parties. That still leaves plenty to debate and discuss--including the proper basis of standing for the plaintiffs, and the status of intervenor-defendants for thinking about the effect of a declaratory judgment. But this line of inquiry avoids making fundamental mistakes about the kind of remedy the declaratory judgment is, either the mistake of thinking it is soft, mild, unreal; or the mistake of thinking it is universal and conclusive as to non-parties.

Thoughts on Today's Federal Court Decision Against Obamacare

The judge was right to conclude that the individual health insurance mandate is now unconstitutional, but wrong to rule that the rest of the ACA is now unlawful because it can't be severed from the largely toothless mandate left in place under the 2017 GOP tax bill.

Earlier today, Federal District Court Judge Reed O'Connor issued an important ruling in a case brought by twenty GOP-controlled state governments, arguing that the Obamacare individual health insurance mandate is now unconstitutional, because the tax reform bill Congress passed in December 2017 eliminates the monetary penalty for violation. Much more importantly, the states also claim that the rest of the Affordable Care Act must fall with the mandate because it cannot be "severed" from it. Judge O'Connor ruled in favor of the states on both counts. I think he was right on the first issue, but badly wrong on the second. Like co-blogger Jonathan Adler, I think it is highly likely that this part of the judge's ruling will be overturned on appeal (though, for reasons discussed below, I am a bit less confident on that score than he is).

On the plus side, Judge O'Connor correctly concluded that the post-2017 version of the mandate is now unconstitutional. The judge goes into a long and involved analysis of the issue. But the bottom line is simple. In NFIB v. Sebelius, the original Obamacare case, Chief Justice John Roberts' controlling opinion rejected claims that the individual health insurance mandate can be upheld under Congress' power to regulate interstate commerce, or under the Necessary and Proper Clause. He ultimately upheld it only because it could be reinterpreted as a tax. That theory no longer holds, for reasons I explained here:

Roberts listed several factors that led him to conclude that the mandate can be considered a tax. But a crucial one is that the violators were subject to a fine collected by the IRS. As Roberts put it, "the essential feature of any tax [is that] it produces at least some revenue for the Government."

In December 2017, the GOP Congress enacted a tax bill that.... abolished the fine previously imposed on people who disobeyed the ACA health insurance mandate. The mandate itself remains on the books. But violators are no longer subject to any penalty. For this reason, the state plaintiffs in the newly filed case argue that the mandate can no longer be considered a tax. In the absence of a financial penalty, it no longer "produces" any "revenue for the Government." Indeed, it no longer even tries to do so.....

The plaintiffs are absolutely right on this point. A tax that does not require anyone to pay anything is like a unicorn without a horn. It is pretty obviously not a tax at all.

As I explained in a post published back in June, I think this aspect of the case is important in and of itself, and not just because of the potential implications for the rest of the ACA. But almost everyone else following the current Obamacare litigation seems to care only about the severability issue. The fate of the ACA hinges on it, whereas few worry about the fate of the now-toothless mandate for its own sake.

And Judge O'Connor's analysis of the severability issue is badly flawed. When one part of a statute is ruled unconstitutional, courts are not supposed to strike down other parts of the same law unless they are inextricably connected and Congress would not have intended the latter to function without the former.

In today's opinion, O'Connor demonstrates at length that Congress considered the individual mandate to be an "essential" part of the Affordable Care Act when it was first enacted back in 2010. However, the mandate that reasoning applies to was the original version that included a penalty. Congress' 2010 legislative findings and other statements about the importance of the mandate simply do not apply to the post-2017 version, which no longer imposes any penalty for violation. It just doesn't make any sense to conclude that an essentially toothless mandate is "essential" to the ACA. And that is the version whose relevance the court must consider in the current case.

Judge O'Connor's analysis of the post-2017 version of the law is brief and cursory. He notes, correctly, that the 2017 Congress did not repeal the 2010 findings on the supposedly "essential" nature of the mandate, and that it did not make any new findings on this subject. But none of this changes the fact that the court's job is to evaluate the essentiality (or lack thereof) of the present version of the mandate, not the one that existed before December 2017. The 2010 findings do not apply to the former, and Congress did not need to make any new findings to demonstrate the fairly obvious point that a virtually toothless mandate is not essential to anything. Under the 2010 version of the ACA, it was plausible to argue that the mandate was a nail for want of which the battle (or, in this case, the ACA) would be lost. The current version is akin to a rusty nail that no longer holds up anything, and indeed no longer even has a sharp point.

For those interested, there is a more extensive discussion of the severability issue in the amicus brief I joined with several other legal scholars, including Jonathan Adler, Nicholas Bagley, Abbe Gluck, and Kevin Walsh. But, to my mind, at least, the issue really comes down to the simple common-sense point that a mandate without teeth cannot be considered essential to anything. For what it is worth, Adler and I believe that the original Obamacare mandate was unconstitutional, and he was one of several legal scholars who joined the amicus brief I wrote against it (we also later coauthored a book about the case). Bagley and Gluck were on the other side of that issue. But we are on the same page when it comes to the severability question.

As already noted, I do not expect this ruling to survive on appeal. But I am not quite as confident on that subject as most other commentators seem to be. The fact that one federal judge has endorsed the states' severability argument increases the odds that others might, as well. The history of ACA-related litigation is filled with surprises and failed predictions by experts. My own predictions about the original Obamacare case were right on some key points, but wrong on others. So it is certainly possible I could turn out to be wrong about a key aspect of this case, as well.

There is, however, one important distinction between the 2012 ACA case and the current one. Despite repeated claims to the contrary by the law's defenders, there was never a broad, cross-ideological consensus in favor of the constitutionality of the individual mandate. From early on, prominent conservative and libertarian legal scholars and commentators argued that the law was unconstitutional. The issue was one that divided experts largely along ideological lines. Thus, judges could (and did) write plausibly defensible opinions on either side of the issue.

By contrast, expert support for the states' severability argument in the present case is notable by its near-total absence. Those conservative and libertarian legal scholars who have opined on the subject have almost all argued that the states' position is badly wrong. That doesn't necessarily mean the states cannot win. Judges don't have to listen to expert commentators, and sometimes even go against their consensus views. But lack of intellectual respectability does make it much harder for a controversial new argument to prevail, especially in a high-profile case like this one.

UPDATE: I wrote this post before I had a chance to see Jonathan Adler's update to his own post about this ruling, where he offers a similar critique of the severability part of the decision.

BREAKING: District Court Judge in Texas Holds ACA Is Unlawful

A federal district court judge in Texas has accepted a strained and implausible argument that the Affordable Care Act must be struck down because Congress eliminated the tax penalty for failing to purchase qualifying health insurance.

This evening, as the Affordable Care Act's enrollment period ended, Judge Reed O'Connor of the U.S. District Court for Northern District of Texas issued his much-awaited opinion in Texas v. United States, concluding that the individual mandate is unconstitutional and that, as a consequence, the entire Affordable Care Act is invalid. This is a surprising result, and one that is hard to justify.

I provided background on the implausible claims behind this suit here and here. Among other things, it's not clear why the states had standing to file their claim, and the argument that the entire ACA must fall because of the individual mandate's alleged infirmity is strained, to say the least, for reasons I outlined with Abbe Gluck in this NYT piece and this amicus brief. I also debated the merits of the case in this FedSoc podcast.

As the foregoing makes clear, I've been highly skeptical of the claims in this case from the beginning. Thus the result in the opinion is surprising -- and surprisingly weak. It is, in many respects, the conservative equivalent of so-called #Resistance judicial opinions that have embraced questionable legal arguments deployed to subvert objectionable Trump Administration policies. I would be quite surprised if this opinion survives the inevitable appeal to the U.S. Court of Appeals for the Fifth Circuit, and even more surprised if this result garners the support of more than two justices on the Supreme Court (if the case even gets that far).

The problems with Judge O'Connor's opinion are evident at the outset where he summarizes his conclusion:

Resolution of these claims rests at the intersection of the ACA, the Supreme Court's decision in NFIB, and the TCJA. In NFIB, the Supreme Court held the Individual Mandate was unconstitutional under the Interstate Commerce Clause but could fairly be read as an exercise of Congress's Tax Power because it triggered a tax. The TCJA eliminated that tax. The Supreme Court's reasoning in NFIB—buttressed by other binding precedent and plain text—thus compels the conclusion that the Individual Mandate may no longer be upheld under the Tax Power. And because the Individual Mandate continues to mandate the purchase of health insurance, it remains unsustainable under the Interstate Commerce Clause—as the Supreme Court already held

The problem with this analysis is that it's central claim -- that "the Individual Mandate continues to mandate the purchase of health insurance" -- is false, both in law and in fact. As Chief Judge Roberts explicitly noted in his NFIB opinion, the "only consequence" of failing to obtain qualifying health insurance is paying a tax – a tax which is now set at zero. As Roberts wrote: "Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS." In other words, there is nothing left in the ACA that mandates that people obtain health insurance.

Judge O'Connor is not content to claim the mandate must be invalidated, he goes on to claim that this justifies declaring the whole law invalid because Congress, in 2010, claimed the mandate was essential to the operation of the Act. Yet Congress in 2017 reached a different conclusion when it enacted legislation zeroing out the mandate penalty. The ACA today -- the ACA as amended by Congress in 2017 -- no longer relies upon an enforceable individual mandate to operate because there is none.

Despite this fact, Judge O'Connor concludes that the 2017 Congress's decisions to leave the ACA without an enforceable mandate requires invalidation of the entire law because the 2010 Congress said so. In effect, Judge O'Connor concludes that the 2010 Congress precluded subsequent Congress's from selectively amending the ACA. This would be crazy even if Congress had sought to do this in 2010 -- it's even more crazy as the 2010 Congress did no such thing.

The weakness of Judge O'Connor's severability analysis becomes even more plain when one unpacks the actions of the two Congresses. Insofar as the 2010 Congress claimed the mandate played an essential role in the operation of the ACA, it was referring to a mandate that was enforced by a penalty. That is, the 2010 Congress believed that imposing a financial penalty on the failure to obtain qualifying health insurance would reduce the number of individuals who failed to comply. As there is no such penalty anymore, it is simply nonsensical to rely upon the 2010 Congress's findings to make judgments about the law as subsequently amended in 2017. The 2010 findings concern a law that, for all practical purposes, ceases to exist. What matters is what Congress did -- and what Congress did is create a law that regulates health insurance markets and lacks an enforceable mandate to purchase insurance. This may or may not be good policy, but it is what Congress did, and there's no basis for a district court to undo it.

And did I mention standing? The Justice Department somehow neglected to raise standing in its briefing, but Judge O'Connor addressed it nonetheless (as he should have, as Article III standing is jurisdictional). Despite recognizing the need to address standing, Judge O'Connor completely botched the relevant analysis, concluding the plaintiffs have standing to challenge a provision of a law that has no legal effect. Because the law imposes no penalty or legal sanction on failing to comply, there is no injury as required by Article III, let alone an actual and concrete injury-in-fact that is caused by the relevant provisions of the ACA and that can be redressed by this opinion. Judge O'Connor concludes otherwise only by ignoring the actual operation of the law and Chief Justice Roberts' NFIB opinion (quoted above) that makes clear that the ACA's mandate imposed no consequence whatsoever beyond the tax liability that Congress has since erased. Standing requires an actual injury. An unenforced and unenforceable horatory admonition doesn't cut it.

Judge O'Connor's opinion declares the individual mandate to be unconstitutional, and declares the rest of the ACA to be inseverable and invalid -- all of it, including those provisions that have nothing to do with health insurance markets. Yet Judge O'Connor has not (as yet) issued an injunction barring enforcement of the law. Rather, his opinion merely purports to provide declaratory relief to the plaintiff states, meaning its immediate practical effect has yet to be determined, though a stay (either from Judge O'Connor or the U.S. Court of Appeals for the Fifth Circuit) seems likely.

As noted above, I do not believe this opinion is long for this world. However superficially plausible the plaintiff states' claims initially appear, they melt upon inspection. The more one digs into them, the less substantial they appear. I expect this to be clear to the Fifth Circuit, and do not believe the states' arguments have much of a chance before the Supreme Court. Indeed, I would not be surprised were this decision to be overturned on standing on appeal, in which case certiorari would almost certainly be denied. Stay tuned.

UPDATE: For more on the opinion, here's a piece I have with Abbe Gluck in the NYT.

SECOND UPDATE: Here's a piece by Nicholas Bagley on the ruling in the Post. He largely agrees with the analysis above.

Short Circuit: A Roundup of Recent Federal Court Decisions

A misleading film, a misleading statistic, and misleading crackers.

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

This week, IJ filed a merits brief in the U.S. Supreme Court, which will soon consider whether a Tennessee law that requires people to live in the state for two years before they can receive a liquor license—and to live in the state for 10 years before they can renew it—unconstitutionally discriminates against new residents. Learn more here.

  • Israeli-Belgian national is advised by Canadian border patrol not to board flight to U.S.; she's on a watch list. She seeks an explanation; the TSA issues order neither confirming nor denying her no-fly status. She sues. D.C. Circuit: Petition denied. She sued 62 days after the TSA issued the order, and the deadline is 60 days.
  • Twelve-year-old deaf student quarrels with teacher over takeout food, hits teacher with stick, throws rocks. West Hartford, Conn. police arrive, stand behind the student and verbally instruct him to drop large rock. They rely on teacher standing in front of student to translate into sign language, then twice tase student when he fails to respond. Student: I didn't even know the cops were there! And I certainly didn't process any sign-language instructions. Second Circuit: Qualified immunity. Cop reasonably could have thought that his warnings were being conveyed to the student and that the student was deliberately ignoring them.
  • Through NYPD's "no-fault" eviction program, police and prosecutors threaten to evict business owners, residents if somebody—even a total stranger—commits a crime at or near their business or residence. Hundreds of people sign settlement agreements, waiving their constitutional rights (for instance, agreeing to warrantless searches) in order to stay in their apartments and businesses. Second Circuit: A class action challenging the constitutionality of the program should not have been dismissed on Rooker-Feldman grounds. (This is an IJ case. Click here to read more.)
  • Class action: "Whole Grain" Cheez-It crackers have more enriched white flour than whole grain in them. False and misleading advertising? Manufacturer: The front of the box says exactly how much whole grain is in them—5 or 8 grams. (Per 29-gram serving.) District court: Case dismissed. Second Circuit: Vacated. "Such a rule would permit Defendant to lead consumers to believe its Cheez‐Its were made of whole grain so long as the crackers contained an iota of whole grain, along with 99.999% white flour."
  • Filmmaker, a gun control proponent, asks gun rights activists how, without background checks, guns can be kept out of the hands of terrorists and criminals. The film then depicts the activists remaining silent, averting their eyes, and shifting in their seats. But wait! In real life, they actually answered the question. The filmmaker acknowledges the segment is misleading. Fourth Circuit: But it's not defamation under Virginia law.
  • Man serving sentence in North Carolina for federal drug crimes is separately convicted of state crimes in Oklahoma. The Oklahoma judge orders that the state sentence run concurrently with the federal sentence, but the federal Bureau of Prisons thinks otherwise, effectively adding five years to the man's sentence. Fourth Circuit (2016): Why don't you rethink that. BOP: Okey dokey, we've thought about it and reach the same conclusion. Fourth Circuit (2018): Think harder.
  • And via the rarely heard from Thirteenth Circuit, a genial admonishment to subscribe to our new podcast, Bound By Oath, which you will find congenial.
  • After pat-down, Houston police believe contraband is protruding one inch from man's butt cheeks. Do a strip search? No, instead man is taken to hospital for anal cavity search, which yields no contraband. Can the man sue the officers? Maybe the magistrate who authorized the cavity search shouldn't have, says the Fifth Circuit. But the officers had a warrant, so no suing them.
  • Sex offender serves his time, remains civilly committed. Sex offender: In squalid conditions and subject to daily random searches, property restrictions, staff harassment. Fifth Circuit: Civilly committed persons are entitled to more considerate treatment than criminally confined persons, but the conditions alleged are constitutional. Some of his other claims can go, though.
  • Allegation: Bexar County, Tex. jail officer beat up inmate. Upon release, the now-former inmate sues. District court: Case dismissed. He didn't exhaust the administrative remedies available to him in jail. Fifth Circuit: He's not in jail anymore, so he didn't have to. His suit can proceed.
  • Allegation: Prisoner makes sink overflow, so Kentucky jailor beats the hell out of him. "We're the law, dawg. We can do what we want." At jailor's trial, the gov't uses evidence that the jailor beat up another prisoner on a prior occasion. Sixth Circuit: Evidence of prior crimes normally isn't admissible at trial (lest it unfairly sway the jury). The exception the gov't relied on doesn't apply, so conviction vacated.
  • Three-time deportee from Mexico enters the country a fourth time, gets caught, pleads guilty to illegal reentry, and moves for release on bail pending sentencing. Is he a flight risk? Yes, says the government, because if you let him out on bail we will deport him, and then how would he show up for his sentencing hearing? District Court: That's too clever by half. Sixth Circuit: Nope, it's just the right amount of clever; nothing in the statute prohibits ICE from deporting people pending trial or sentencing.
  • In 2006, Jane Doe pleaded guilty to unlawful sexual conduct with a minor and was classified as a "sexual predator" under Ohio law. In Ohio, that classification is permanent, there is no mechanism for altering it, and it requires designees to comply with all manner of registration rules and housing restrictions. Doe sues, claiming a due process right to periodic hearings at which she can show she is unlikely to commit future sex crimes. Sixth Circuit: No. Whether or not you're currently dangerous, Ohio can regulate you as a sexual predator for life.
  • Allegation: Missouri prison officials' Hepatitis C screening and treatment policies deny appropriate care and access to potentially lifesaving antiviral drugs. Eighth Circuit: This can proceed as a class action.
  • In November, President Trump ordered that asylum for immigrants crossing the Mexican border would be limited to those coming through ports of entry. Ninth Circuit (in 65 pages, 10 days after the appeal was filed): Not so. Rather, the statute says what it says: Immigrants get to apply "whether or not at a designated port of arrival." So the new order stays on ice. Dissent: The statute says aliens can "apply"; it doesn't say the applications can't all be denied.
  • At public meeting, hydrogeologist criticizes Albuquerque, N.M.-based water district for fortifying ditch roads with rock rubble. District employee complains to the state professional engineer board, claiming that hydrogeologist's critique amounted to the unlicensed practice of engineering. Correct, says the board. New Mexico Court of Appeals (2013): Actually, the First Amendment is pretty clear that state agencies can't punish folks for talking at public meetings without a license. Tenth Circuit (2018): Sadly, though, the hydrogeologist is now time-barred from seeking damages over this contretemps. (If all this talk of rogue engineering boards sounds familiar, it should: IJ is suing Oregon's for similar First Amendment violations. For more information on our case, check out Ludacris' Facebook page—belated thanks for the shout-out, Ludacris—or visit our website.)
  • Allegation: CNN reports that mortality rate for pediatric open heart surgery at West Palm Beach, Fla. hospital is over three times the national average. But that's not so! CNN included less risky closed heart surgeries in its figure; in fact, there is no statistically significant difference between the hospital's mortality rate and the national average. Nevertheless, the hospital closes its pediatric cardiology program and forces its CEO to resign. The now-former CEO sues CNN for defamation; CNN moves to strike the complaint under Georgia's anti-SLAPP (strategic lawsuit against public participation) statute. Eleventh Circuit: Anti-SLAPP conflicts with federal rules and can't be used here.
  • And in state court news, the Supreme Court of Kansas allows the warrantless entry of a home because police said they smelled marijuana—inside a Tupperware container, inside a locked safe, inside a bedroom—when they were at the front door. (Click here for local journalism.)

Pennsylvania law demands that applicants for cosmetology licenses prove they have "good moral character," a requirement that prevents our clients, two women who have criminal convictions from years ago when they were struggling with substance abuse, from moving forward with their lives as productive members of society. It's a requirement that doesn't apply to barbers; one can shave, but not tweeze, hair absent a finding of good moral character. This week, Courtney Haveman and Amanda Spillane filed suit in Pennsylvania state court. Click here for more.

Did Trump Violate Campaign Finance Laws?

Legal experts debate whether payments to kill stories about then-candidate Trump's affairs were undisclosed campaign expenditures.

In today's Washington Post, three prominent DC attorneys representing a range of political viewpoints -- George Conway, Neal Katyal, and Trevor Potter -- argue that President Trump likely violated federal campaign finance laws when he encouraged hush money payments to prevent potentially embarrassing stories about his extra-marital affairs in the final weeks before the 2016 election. Their article begins:

Last week, in their case against Michael Cohen, federal prosecutors in New York filed a sentencing brief concluding that, in committing the felony campaign-finance violations to which he pleaded guilty, Cohen had "acted in coordination with and at the direction of Individual-1," President Trump. And this week, prosecutors revealed that they had obtained an agreement from AMI, the parent company of the National Enquirer, in which AMI admitted that it, too, had made an illegal payment to influence the election. The AMI payment was the product of a meeting in which Trump was in the room with Cohen and AMI President David Pecker.

This all suggests Trump could become a target of a very serious criminal campaign finance investigation. In response, Trump has offered up three defenses. His first was to repeatedly lie. For quite some time, he flatly denied knowledge about the $130,000 payment to Stormy Daniels. But now he seems to be acknowledging that he knew (since his personal company reimbursed Cohen for the payment, he ought to). Now Trump and his acolytes have turned to two other excuses: They point to an earlier case involving former senator John Edwards to argue that what Trump did wasn't a crime; and they say, even if it was a crime, it wasn't a biggie — there are lots of crimes, so what, who cares.

The former is a very weak legal argument, and the latter a dangerous one. Indeed, the campaign finance violations here are among the most important ever in the history of this nation — given the razor-thin win by Trump and the timing of the crimes, they very well may have swung a presidential election.

As they note, the last time a federal court was faced with similar questions -- during the prosecution of John Edwards over alleged campaign finance violations related to the payoff of his mistress Rielle Hunter - the court accepted the legal theory that such payments could constitute campaign expenditures if made for the purpose of influencing a campaign. They also express justified dismay at the arguments, made in some circles, that it doesn't matter whether Trump violated the law because he has partisan opponents -- as if that is legally relevant or could somehow excuse otherwise illegal conduct. They conclude:

The bad arguments being floated in Trump's defense are emblematic of a deterioration in respect for the rule of law in this country. The three of us have deep political differences, but we are united in the view that our country comes first and our political parties second. And chief among the values of our country is its commitment to the rule of law. No one, whether a senator or a president, should pretend America is something less.

UC Irvine law professor Rick Hasen agrees that the case against Trump appears to be significantly stronger than that against Edwards. He writes:

Everyone knew that Edwards was on trial for having donors make payments to his mistress to help fund his campaign. This put Trump and everyone else on fair notice that federal prosecutors were treating such payments as reportable campaign expenditures in certain circumstances. Trump even tweeted about the case at the time. At the very least, the Edwards precedent should have caused Trump to seek advice of counsel on whether payments made to hush up mistresses timed specifically to help his election campaign were illegal.

Not only is the legal theory against Trump stronger because of the Edwards precedent; the facts of the Trump case appear much stronger than the Edwards case as well. Here there appears to be both testimony of Cohen and people from AMI (the National Enquirer parent company) who have said that they coordinated with Trump to make the payments in order to help Trump's election chances. There was no corroboration for Edwards but apparently plenty for Trump. And there's great evidence of consciousness of guilt: the use of the LLC and AMI to launder the payments; the denial for more than a year that the payments were made; the disguising of the reimbursements to Cohen from the Trump Organization as payments for legal services and technical services. This is no paperwork error like Obama or McCain made.

Trump of course would have the ability to show at any trial that he did not have the willfulness required for this to become a criminal matter, but it looks like there is plenty of evidence there to give the issue to a jury. The timing of the Daniels payment is particularly damning in proving this was campaign related and not primarily about helping Trump's personal life. Cohen and Trump refused to pay off Stormy Daniels until October 25, 2016, just before the election and after the release of the "Access Hollywood" tape, when Daniels had threatened to give an interview to a media outlet about their sexual encounter.

Not all legal experts are convinced the payments to Stormy Daniels and Karen McDougal constitute campaign expenditures under federal law. Former FEC Chairman Bradley Smith, for example, argues that such payments are simply not the sort of expenditures covered by current law. Back in August, he made this argument in the Washington Post:

regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that "contribution" and "expenditure" aredefined in the Federal Election Campaign Act as anything "for the purpose of influencing any election," and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to "influence an election," from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries — such as expensive watches, massages and Brooks Brothers suits — seems more like bribery than funding campaign speech.

That's why another part of the statute defines "personal use" as any expenditure "used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign." These may not be paid with campaign funds, even though the candidate might benefit from the expenditure. Not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate. . . .

Yes, those payments were unseemly, but unseemliness doesn't make something illegal. At the very least, the law is murky about whether paying hush money to a mistress is a "campaign expense" or a personal expense. In such circumstances, we would not usually expect prosecutors to charge the individuals with a "knowing and willful" violation, leading to criminal charges and possible jail time. A civil fine would be the normal response.

The ultimate arbiter of this question may be Congress, rather than the courts, as it is exceedingly unlikely that Trump will ever be indicted for these alleged crimes. instead, these are questions to be considered if and when Congress opens an impeachment inquiry.

Fourth Circuit Rejects Libel Claims over Misleading Edits in Katie Couric's "Under the Gun"

The "questionable" "editing choices," the court said, weren't sufficiently injurious to reputation to qualify as libelous (whether or not they conveyed a false message).

From yesterday's Fourth Circuit decision in Virginia Citizens Defense League v. Couric, the facts:

... In 2016, journalist Couric and filmmaker Soechtig released a documentary titled Under the Gun. The documentary concerns gun policy in America, and it takes a perspective favoring regulation. Couric narrated the film, interviewed participants, and served as an executive producer....

Although the film advocates for gun control, its creators assertedly sought to present viewpoints from organizations that opposed measures like universal background checks. To that end, a producer employed by Atlas Films contacted the Virginia Citizens Defense League ("VCDL"), a non-profit gun-rights organization, and set up an interview with members of the VCDL. Nine members, including Hawes and Webb, agreed to participate.

The final cut of the film includes portions of Couric's interview with these VCDL members. The segment lasts just over three minutes.... [T]his suit centers on a twelve-second clip at the close of the three-minute VCDL interview. In it, Couric asks the following question: "If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?" Approximately nine seconds of silence follow, during which the VCDL members, including Webb, a gun store owner, and Hawes, an attorney, sit in silence and shift uncomfortably in their seats, averting their eyes. The film cuts to a revolver chamber closing. Couric then says: "The background check is considered the first line of defense, and 90% of Americans agree it's a good thing." ...

Although the film accurately portrays most of the interview with VCDL members, the twelve-second clip described above did not transpire as depicted. In the unedited footage, Couric's background check question prompted approximately six minutes of responses from the VCDL members. Hawes responded by suggesting that the government cannot, consistent with the Constitution, prevent crimes through prior restraint. Webb commented that background checks are unlikely to prevent motivated criminals from obtaining guns or committing crimes. These responses were followed by approximately three minutes of related discussion between Couric and the panel. Rather than use these responses, the filmmakers spliced in b-roll footage taken prior to the interview in which Couric asked the VCDL interviewees to sit in silence while technicians calibrated the recording equipment.

Shortly after the film's showing at various film festivals, the VCDL released unedited audio of the interview. In the public backlash that followed, Couric issued a statement admitting that the edited version of the film did "not accurately represent [the VCDL members'] response" and that the segment was "misleading." Believing the misleading segment to be defamatory, the VCDL and two of its featured members, Hawes and Webb, brought this action. The district court dismissed their complaint for failure to state a claim, reasoning that the film was neither false nor defamatory and that, as to claims brought by the VCDL, the film was not "of and concerning" the organization. This appeal followed....

For a harsh but, I think, accurate critique by Washington Post media critic Erik Wemple, see here; an excerpt:

Moments ago, the film's people released this statement from Soechtig: "There are a wide range of views expressed in the film. My intention was to provide a pause for the viewer to have a moment to consider this important question before presenting the facts on Americans' opinions on background checks. I never intended to make anyone look bad and I apologize if anyone felt that way."

Here the Erik Wemple Blog stroke our gray beard and reflect: In the years we've covered and watched media organizations, we've scarcely seen a thinner, more weaselly excuse than the one in the block above. For starters, it appears to count as an admission that this segment of the documentary was edited. The artistic "pause" provides the viewer not a "moment to consider this important question"; it provides viewers a moment to lower their estimation of gun owners. That's it....

But, to be libelous, it's not enough that a statement is false (or, in some situations, carry a false implication); as the Fourth Circuit correctly notes,

To state a claim for defamation under Virginia law, a plaintiff must plead ... [among other things, that the statement is] "both false and defamatory." ... "Defamatory words are those 'tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'" The Supreme Court of Virginia has held that actionable defamatory language is that which "tends to injure one's reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous." ...

Applying Virginia law, a court "must decide as a threshold matter of law whether a statement is reasonably capable of defamatory meaning before allowing the matter to be presented to a finder of fact." This "reasonable capability" test recognizes that defamatory meaning is often implied....

Plaintiffs argued that the video "can reasonably be understood to suggest that a person is unfit in his or her trade," which is generally seen as particularly likely to "so harm the reputation of another" as to be legally defamatory; but the Fourth Circuit said no:


Have Republicans Been Engaging in "Asymmetric Constitutional Hardball"?

Hardball, yes. Asymmetric, not so much.

In this essay in the Columbia Law Review, Professors Joseph Fishin and David Pozen argue that while "constitutional hardball" has generally increased, for the most part Republicans have been the aggressors and the Democrats quiescent.

In my response, I demur. Here is the abstract:

This Response addresses Professors Joseph Fishkin and David Pozen's Asymmetric Constitutional Hardball. Fishkin and Pozen argue that Republicans have engaged in "asymmetric constitutional hardball" since 1993. This Response accepts the authors' contention that Republicans have increasingly engaged in constitutional hardball but casts doubt on the purported asymmetry.

Part I questions whether one of the authors' primary examples of Republican constitutional hardball—government shutdowns resulting from tensions over spending and other matters between Presidents Obama and Clinton on the one hand and congressional Republicans on the other—supports the authors' thesis, especially given that the shutdowns could at least as easily be blamed on the Presidents as on Congress.

Part II highlights important examples of Democratic constitu­tional hardball, especially hardball by the Obama Administration, that are omitted from the authors' analysis. Part II also briefly reviews reasons why Democrats have been increasingly inclined toward constitutional hardball.

Part III discusses in some detail a particularly important example of Obama Administration constitutional hardball—its efforts to reach and implement, over significant opposition in Congress, a nuclear agreement with Iran. These efforts circumvented Congress and involved lying to the public, engaging in legally aggressive lifting of sanctions on Iran, and even spying on the agreement's domestic opponents.

Among other contributions I think my response makes, I believe it goes into more detail about the "constitutional hardball" the Obama administration played regarding the Iran deal than any other single article. Anyone who still believes that the Obama administration was a paragon of truth and the rule of law should address how it negotiated, sold to the public, and implemented the deal.

"Free Speech Rules," My New YouTube Video Series -- Episode 1 (Speech in Schools) Now Out

Please share it widely -- there will be at least nine more in the upcoming months.

Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at, I'm putting together a series of short, graphical YouTube videos -- 10 episodes to start with -- explaining free speech law. We hope that they will be accessible to everyone, though we're particularly interested in reaching students (from elementary school on up). And the first video, "7 Things You Should Know About Free Speech in Schools," is now out!

We'd love it if you

  1. Watched this.
  2. Shared this widely.
  3. Suggested people or organizations whom we might be willing to help spread it far and wide (obviously, the more detail on the potential contacts, the better).
  4. Gave us feedback on the style of the presentation, since we're always willing to change the style as we learn more.

Please post your suggestions in the comments, or e-mail me at volokh at

Future videos in the series will likely include most of these, plus maybe some others:

  • Fake news.
  • Alexander Hamilton: free press pioneer.
  • Free speech at college.
  • Hate speech.
  • Free speech on the Internet.
  • Money and speech / corporations and speech.
  • Speech and privacy.
  • Who owns your life story?

The YouTube playlist link is here; future videos will be posted there as well. Thanks also to Prof. Joel Gora, for suggesting the title, and Prof. Mark Lemley, for letting me borrow his "This isn't legal advice / if it were legal advice, it would be followed by a bill" line.

Court Sets Aside USC Student's Expulsion for Alleged Rape

USC's procedures didn't fairly treat the accused, a California appellate court rules.

From Tuesday's California Court of Appeal decision in Doe v. USC, one of several recent California appellate cases reaffirming student due process rights (which, under California law, apply in some measure even at private universities):

John Doe appeals from the trial court's denial of his petition for a writ of administrative mandamus to set aside his expulsion from the University of Southern California (USC) for unauthorized alcohol use, sexual misconduct, sexual assault, and rape.

USC student Jane Roe submitted a complaint to USC alleging John had sexually assaulted her in Jane's apartment after they both attended a "paint" party, at which the students splattered paint on each other. Dr. Kegan Allee, the Title IX investigator, who served as the investigator and adjudicator of the complaint pursuant to USC's administrative guidelines, found by a preponderance of the evidence John knew or should have known Jane was too drunk to consent to sexual activity. In addition, Dr. Allee concluded even if Jane had consented to vaginal sex, she had not consented to anal sex, as evidenced by blood observed in her apartment on the mattress, sheets, and carpeting later that day by Jane and another student.

John contends on appeal he was denied a fair hearing. We agree. Dr. Allee did not interview three central witnesses, including the two witnesses who observed Jane's apartment after the sexual encounter—one described a large puddle of blood on the mattress and blood on the sheets and carpeting; another saw the apartment earlier that day and did not see any blood. Jane relied on the third witness to help her reconstruct what happened the morning of the incident. Instead, Dr. Allee relied on the summary of the interviews by another Title IX investigator, Marilou Mirkovich. Accordingly, Dr. Allee was not able to assess the credibility of these critical witnesses during the interviews.

Because Dr. Allee's investigative report and adjudication turned on witness credibility, Dr. Allee should have interviewed all critical witnesses in person or by videoconference to allow her to observe the students during the interview. This was especially important here where there were inconsistencies in the testimony and a dispute over whether the substances observed in Jane's apartment after the sexual encounter were blood or paint from the paint party.

In addition, USC did not comply with its own procedures to conduct a fair and thorough investigation by failing to request that Jane provide her clothes from the morning of the incident and her consent to release her medical records from the rape treatment center....

[Finally], as part of the adjudicator's assessment of credibility, an accused student must have the opportunity indirectly to question the complainant. (UC Santa Barbara, supra, 28 Cal.App.5th at p. 60 [accused student was deprived of right to cross-examine complainant and to present his defense where committee allowed her to refuse to answer questions about the side effects of an antidepressant medication she was taking at the time of the alleged sexual assault on privacy grounds]; Claremont McKenna, supra, 25 Cal.App.5th at p. 1057 [college should have required complainant to appear at hearing in person or by videoconference to allow "the Committee[] [to ask] her appropriate questions proposed by John or the Committee itself"]; Cincinnati, supra, 872 F.3d at p. 406 [accused student had a right to question the complainant through the review committee where the committee had to decide whether to believe the complainant or accused student].) USC's procedures do not provide an accused student the right to submit a list of questions to ask the complainant, nor was John given that opportunity here. If USC proceeds with a new disciplinary proceeding, it should afford John an opportunity to submit a list of questions to ask Jane....

The judgment is reversed and the matter remanded to the trial court with directions to grant John's writ of administrative mandamus....

The opinion is by Judge Gail Ruderman Feuer, who was just appointed to the Court of Appeal by Governor Brown, and, as it happens, is the wife of L.A. City Attorney Mike Feuer (just a fun tidbit; the City wasn't at all involved here, of course). Thanks to Bruce Wessel for the pointer.

Unconstitutional "Hate Speech" Prosecution in New York

"[SUNY] Purchase College student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus."

[UPDATE, Dec. 13, 10:40 am: A article reports -- alone among the sources I've seen -- that "The posters carry a song line 'Don't be stupid, be a smarty/Come and join the Nazi Party' from Mel Brooks' movie 'The Producers.' The 1967 satirical film, later turned into a stage musical, is about a washed-up Broadway producer who seeks to cheat investors with a dreadful play that will bomb; too bad for him that the politically incorrect 'Springtime for Hitler: A Gay Romp with Adolf and Eva at Berchtesgaden' is a success." If that's so, then this suggests that this might have been a joke gone awry by Hassard, who is apparently involved in theater; but, as I discuss below, the prosecution is unconstitutional in any event. Thanks to commenter Naaman Brown for noting this possibility; if others have more details on what the posters actually said, please let me know.] [FURTHER UPDATE, Dec. 13, 2:06 pm: The News12 Westchester video supports the description, and includes an image of the flyer, screen-captured below; as Naaman Brown notes, "The cityscape behind Hitler and below the Nazi flag looks pretty grim. It's hard to tell but it could even be bombed out. And there's a smiley face peeping out behind Hitler's head. With the line from Mel Brooks' The Producers 'Don't be stupid, be a smarty! Come and join the Nazi Party!' that makes one weird pro-nazi poster."]

The Westchester County D.A.'s office announced:

[SUNY] Purchase College student Gunnar Hassard was arraigned in Harrison Town Court for Aggravated Harassment in the First Degree, a class E felony, for hanging posters with Nazi symbolism in areas of the campus....

On Sunday evening Dec. 8, 2018, during the Jewish celebration of Hanukkah, the felony complaint alleges that 18-year-old Gunnar Hassard of Oneonta, NY, and a student at SUNY Purchase, hung multiple posters, which incorporated a swastika and symbols of Nazi Germany, on and near the Humanities Building.

The complaint states that the defendant posted multiple flyers on the campus "frequented and utilized by members of the Jewish community ... causing alarm, fear and annoyance to the members of the campus community during the Jewish holiday of Hanukkah."

New York State University Police arrested Hassard and charged him with Aggravated Harassment, a hate crime which specifically states a person is guilty of this crime when one "Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property."

As readers might gather, I have only contempt for neo-Nazis. But the statutory provision to which the D.A.'s office is referring, N.Y. Penal Law 240.31, is unconstitutional. The relevant part of the statute reads,

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:

Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property.

And that impermissibly singles out a particular message based on its content and even its viewpoint, which is unconstitutional under R.A.V. v. City of St. Paul (1992) (and Virginia v. Black (2003)).

Now the government can generally criminalize the posting of all signs on private property without the owner's permission. It could likewise criminalize the posting of all such signs on government property; and the government as landlord can even set up rules that impose content-based but viewpoint-neutral constraints on what is posted on its property. (SUNY, for instance, can probably bar the posting of signs that contain vulgarities, even though the government can't generally criminalize vulgar speech.) But it can't target for special criminal punishment racist signs, or anti-government signs, or signs critical of various religious, sexual orientations, or what have you. Just as R.A.V. held that a ban on racist "fighting words" is unconstitutional even if a ban on "fighting words" generally is constitutional, so a ban on unauthorized signs that display a swastika is unconstitutional even if a ban on unauthorized signs generally is not.

Nor does the requirement that the speech be intended to "harass, annoy ... or alarm" change the analysis. I don't think that general bans on publicly posted speech intended to harass, annoy, or alarm are constitutional, see People v. Golb (N.Y. 2014) and People v. Marquan M. (2014); but even if they were, they again can't single out swastikas.

A ban that is limited to "true threats" of violence would be constitutional, and it's possible that a ban on true threats that use swastikas would be constitutional, too, by analogy to the ban on true threats consisting of cross-burning that was upheld in Virginia v. Black (2003); the theory would be that swastikas are especially threatening, so a law banning threatening swastikas just focused on the most dangerous subset of the forbidden category. But this statute is not limited to true threats ("intent to ... threaten" is only a part of it), and there seems to be nothing in the press release or the news stories I've read that suggests that the swastikas were indeed true threats of violence. (Of course, seeing a swastika displayed can create some degree of generalized menace, but that's not enough to allow its prohibition, as Black held for cross-burning as well, where there's no specific threat.)

Swastikas are constitutionally protected, just as are hammers and sickles or burning crosses or images of Chairman Mao or other symbols of murderous regimes and ideologies. Public speech intended to "harass, annoy ... or alarm" groups of people (whether Jews or conservative Christians or blacks or whites) is constitutionally protected. Posting things on other people's buildings isn't protected, but the law can't single out the posting of particular viewpoints for special punishment. And true threats of violence are unprotected, but the statute isn't limited to them, and I've seen no evidence of a specific true threat here.

Finally, a public university can't expel or otherwise discipline a student because he expresses pro-Nazi messages, though he can be disciplined for posting materials in places where such posting is not allowed -- so long as others who post materials with other viewpoints in those places are disciplined for such posting as well.

UPDATE: I've just gotten and uploaded the criminal complaint, which gives no details on the flyers but also includes no evidence (other than the boilerplate "intent to harass, annoy, threaten or alarm" language) that the flyers were threatening.


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