I was a guest on BBC4 radio’s World Tonight with presenter Ritula Shah and guest Andrew Rudalevige of Bowdoin College to discuss the rapid pace of President Trump’s executive orders.
A President might not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against little resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, in a Chronicle of Higher Education piece. It quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”
Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:
It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.
More: cross-posted, slightly expanded, at Cato at Liberty. And FIRE (Foundation for Individual Rights in Education) has now weighed in on last night’s events at Berkeley surrounding an invited speech by Milo Yiannopoulos. On the federal funding issue, FIRE states its view as follows:
It is true that, under current law, public universities that enforce blatantly unconstitutional speech codes and private universities that violate their own promises of free speech do not face the same potential loss of federal funding for censoring campus speech that they do for violating other federal civil rights laws and regulations. However, FIRE has so far seen no evidence that Berkeley as an institution made any effort to silence Yiannopoulos.
Those who engage in violent and/or destructive protests are ultimately responsible for their unlawful behavior and may be subject to arrest and prosecution by law enforcement. To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful.
I’ve got a few thoughts up at Ricochet about the size of the Mall crowd, “alternative facts,” and the encouragement of inaugural crowderism.
- Four views of the Trump conflicts plan [Milan Markovic/Legal Ethics Forum, Prof. Bainbridge, Andrew Grewal series, Max Kennerly, earlier on Morgan Lewis] And the paper that summarizes the views of President’s most vocal critics [Norman Eisen, Richard Painter, and Laurence Tribe, Brookings, earlier on Emoluments Clause]
- Five years after filing, Michigan consumer’s unusual suit against makers of Ryan Gosling movie ‘Drive’ grinds on [Eriq Gardner, Hollywood Reporter]
- A law unto themselves: Indian tribe expulsions and related governance issues can trample member rights [Brooke Jarvis, New York Times Magazine (“The ejection of tribal members is most prevalent in small tribes with casinos on their land”), earlier on Nooksack controversy]
- “The False Promise of ‘Buy American'” [Dan Ikenson, Cato]
- State travel sanctions against other states: a bad idea in themselves, an insult to constitutional comity, and inevitably a 2-way street [Samantha Allen, The Daily Beast]
- Obama HUD’s far-reaching AFFH (Affirmatively Furthering Fair Housing) scheme now being portrayed unconvincingly as just slight extension of earlier law [Vanessa Brown Calder]
A fresh-outta-the-gate lawsuit asks the courts to step in to prevent President Donald Trump from violating the Constitution’s Emoluments Clause through his business dealings. So, Josh Blackman asks, what’s its argument for standing under Article III? Basically, it’s that “because CREW is spending time on Trump’s emolument issue, they are not able to do things they would otherwise do.” That’s remarkably weak, even under what’s left of such liberal precedents as Havens Realty Corp. v. Coleman (1982), and unlikely to persuade the courts. The ACLU is biding its time while preparing a stronger eventual case for standing by looking for a hotel or other competitor that can plausibly claim to have lost business because of transactions involving the Trump Organization and foreign states that (it expects to argue) violate the clause. Even if litigants succeed in obtaining standing in some case, they will still face a daunting barrier in the state of the doctrine on justiciability and political questions, which could lead the courts to step back and defer to Congress as the appropriate branch to devise a remedy. Earlier here.
More: Jonathan Adler on Twitter comes to similar conclusions about standing — “It’s as if complaint is just a PR exercise” — and notes that Prof. Erwin Chemerinsky, who backs the new suit, argued earlier that Texas and other states, for lack of injury, had no standing to challenge the Obama administration’s DAPA immigration action. “If no standing because Texas had ‘choice’ not to issue drivers licenses, CREW has a choice not to worry about emoluments.” And from Derek Muller:
I wondered if Chemerinsky's suit v. Trump for an Emoluments Clause violation was justiciable, so I checked his Fed Jur book for answers: pic.twitter.com/xtv87pIQ9I
— Derek T. Muller (@derektmuller) January 22, 2017
I wondered if Tribe's suit v. Trump for an Emoluments Clause violation was justiciable, so I checked his Con Law treatise for answers: pic.twitter.com/wiCN4xW85p
— Derek T. Muller (@derektmuller) January 23, 2017
Donald Trump’s inaugural address missed the mark a bit in discussing the oath of office, and would have profited by a mention or two of the Constitution, I argue at Cato at Liberty.
Meanwhile, my colleague Ilya Shapiro has this send-off to the departing president: “Top 10 Ways Obama Violated the Constitution during His Presidency.”
- Good news for Donald Trump! Sticking with speech-protective opinion rule, New York judge dismisses libel suit by PR consultant against him based on his derogatory tweets [ABA Journal]
- “Jawboning” at FCC, under which media companies bend to commissioners’ wishes on content and hiring rather than risk their disapproval, should be recognized as danger to both First Amendment and rule of law [Brent Skorup and Christopher Koopman, Regulation via Cato Institute Tumblr summary]
- The family of Ahmed Mohamed, of schoolboy clock fame, may have to pay $200,000 or more to targets of frivolous libel suits [Popehat]
- Harsh epithets, calls for investigation and accusations of whitewashing, rhetorical comparisons to infamous persons could all lead to media liability if D.C. Court of Appeals reasoning in Michael Mann case isn’t overturned [Ilya Shapiro and Thomas Berry, Cato, earlier]
- NYC, San Francisco criminalize listing property on AirBnB except on authorized conditions. A question of commercial speech [Glenn Lammi, WLF]
- Can Colorado regulate groups that run ads with the message “call your lawmaker to support this bill”? [Ilya Shapiro and Thomas Berry]
You’ve probably seen the “Donald Trump represented on ethics issue by Russian law firm of the year” story. And if you paid it only fleeting attention, you may not have recognized it as a classic instance of outrage clickbait fluff.
The firm turns out to be the venerable and far-flung firm of Morgan Lewis & Bockius, eighth largest in the U.S. and thirteenth largest in the world, per the American Lawyer rankings. Sheri Dillon, a tax specialist associated with Morgan’s Washington, D.C. office, was on hand at the press conference to assist Trump in his presentation on conflict of interest avoidance. Typical of BigLaw firms, Morgan employs much high-level legal talent — Texas Senator Ted Cruz practiced there — and represents all sorts of figures in public life and the political world. Not unusually for a world BigLaw leader, Morgan has an office in Moscow among its dozens of other offices worldwide; that outpost won plaudits for its success by one private group that rates lawyers.
As Snopes soon found, “Donald Trump is not the only high-level politician to have engaged the services of Morgan Lewis. In October 2016, Hillary Clinton used the firm” to help vet potential appointees. The Barack Obama campaign also used Morgan’s services.
Outfits that saw fit to treat this tale as important news included CNN, The Daily Beast, The Week (“Just let that sink in for a second”), The Independent, and many more. In some cases, publications circled back with rewrites as word began to get out that it might be sort of a non-story after all: whatever interesting connections there might be between Trump and Russia, this wasn’t one of them. In the meantime, the story had gotten countless thousands of outrage-shares.
For a somewhat similar instance of randomly connecting BigLaw dots in a wildly misleading way that failed to go viral — it concerned the firm of Sutherland, Asbill, and Brennan, also known for its tax expertise — see this 2013 post.
- R.I.P at 91 Nat Hentoff, magnificent cultural figure, champion of free speech and civil liberties [Tim Lynch; Cato biography page with links to commentaries; related YouTube playlist; his last Village Voice column; trailer on documentary; large archive at Unz.org including work for Inquiry; remembered by free speech expert Ronald K.L. Collins, with many links]
- “Self-Proclaimed Inventor of Email Files Defamation Lawsuit Against Techdirt’s Mike Masnick” [THR, Esq./Hollywood Reporter; “the latest case from attorney Charles Harder, who previously represented Hulk Hogan against Gawker”]
- In the mail: Paul Cliteur and Tom Herrenberg, eds., The Fall and Rise of Blasphemy Law [Leiden University Press]
- On porn, some GOP lawmakers favor wacky litigation theories; others, a nanny state approach [Elizabeth Nolan Brown (Utah proposal), A. Barton Hinkle (Virginia)]
- The most damaging way for Trump to attack the press could be the one Obama has already laid out, namely pursuit of leaks and leakers [Peter Sterne/Politico, Mike Masnick/TechDirt] Mark Feb. 3 on calendar for Cato panel on free speech under Trump with Flemming Rose, Frank Buckley, Robert Corn-Revere; earlier Cato panel with Rose and Nick Gillespie on free speech in age of Trump now online; related on Trump’s antagonism toward critics from Jacob Sullum, Eugene Volokh;
- If Euro-style hate speech law ever sneaks into U.S., enactments like Louisiana’s Blue Lives Matter law may show the way [Scott Shackford, Reason; earlier]
Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a piece in Sunday’s Providence Journal.
I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.
The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.
After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:
Judges rule all the time against the partisan side that appointed them.
And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.
We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.