My new book, “Sex and the Constitution,” will officially be released on March 21. I have worked on this book, off-and-on, for roughly a decade. My goal was to explore the history of sex, religion, law and constitutional law from the ancient world to the 21st century. I’m pleased to report that the early reviews have been quite glowing, including from such folks as Laurence Tribe, Linda Greenhouse, Cass Sunstein, Erwin Chemerinsky, David Cole and George Chauncey.
I am especially pleased that my friend Eugene Volokh has invited me to write a series of five pieces about the book for the Volokh Conspiracy. Each of these pieces will consist of edited excerpts from the book. This, the first of those pieces, is drawn primarily from the prologue and the epilogue in order to give readers an overall sense of the work. The four subsequent pieces, which will appear each day this week, will focus on representative moments in the vast sweep of history explored in “Sex and the Constitution.” I hope you will find them interesting and illuminating.Read more at: Geoffrey R. Stone
In my view, judicial nominees ought to be assessed on their judicial philosophies, and our Constitution gives the Senate just as much power and right to make those assessments as it gives the president. Like everybody else, I would love it if there were a bipartisan consensus in favor of my views on these things, but there is not.
So I support Gorsuch not simply because he is fair and smart and qualified and all of that, but also because I think he has a good philosophy of judging, one that will bring the judiciary closer to its true constitutional obligations. But people who do not share that view are perfectly reasonable in wanting somebody else.Read more at: William Baude
At the time our Constitution was adopted, there were no laws in the United States against obscenity. Sexually explicit expression was widely available. It was only in the nineteenth century that religious moralists, such as Anthony Comstock, instituted laws prohibiting the distribution of “obscene” materials.
After a century of censorship, though, the legal concept of “obscenity” has largely evaporated in recent decades because of the impact of technology, most notably the Internet. Today, prosecutions for the sale, distribution, or exhibition of obscenity have virtually disappeared.
But even if consenting adults now have ready access to all sorts of sexually explicit material, the question remains whether government can constitutionally shield minors and unconsenting adults from exposure to such material.Read more at: Geoffrey R. Stone
Senator McConnell had the audacity to maintain that the “people” should decide who should fill this particular vacancy on the Supreme Court. By employing his duplicitous strategy, he managed to shift this appointment from a President who had won the popular vote by a margin of five million votes in 2012 to one who lost the popular vote by a margin of three million votes in 2016.
This crass and unprincipled manipulation of our democracy should not be allowed to succeed. Anyone who cares about the proper and legitimate functioning of our American democracy must oppose Judge Gorsuch’s nomination, not because he is unqualified, but because of the undermining of our American democracy by Senate Republicans. Anyone who cares about the rule of law should oppose this nomination.
If we fail to take this stand, the Senate Republicans will have succeeded in placing a justice onto our highest Court who has no business being there. They will have undermined the credibility of the Supreme Court as an institution, an institution that is critical to the functioning of our Constitution. The Democrats and any responsible Republicans in the Senate should oppose Judge Gorsuch’s nomination, and invoke the filibuster if necessary. The nomination should then be withdrawn, and the president should nominate in his place a genuinely moderate justice who is acceptable to Democrats and Republicans alike. Only then can we move forward with a sense of institutional integrity.Read more at: Geoffrey R. Stone
Brian Leiter: "Supreme Court Nominations are Controversial because the Court is a Super-Legislature"
In a Washington Post op/ed, Professor Brian Leiter discusses why Supreme Court confirmation hearings are controversial.
Ordinary Americans may be understandably perplexed by the controversy over nominating a judge to the highest court in the land. Isn’t appointing a top judge like appointing a top chemist? You want someone technically competent and professionally responsible, and that is all.
But all lawyers and all political insiders making the choices know that is not so. Appointing a judge to the Supreme Court is much more like appointing a head chef to a complex kitchen than appointing a skilled technician to apply scientific laws to determinate facts. The chef’s tastes and preferences matter, no matter his or her technical competence in the kitchen.
Consider what is obvious: There is no difference in terms of qualifications and expertise between President Barack Obama’s nominee to the Supreme Court, Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, and President Trump’s nominee, Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit. Garland graduated from Harvard Law School and clerked on the Supreme Court; Gorsuch also has a Harvard law degree and also clerked on the Supreme Court. They are clearly both very experienced and well-credentialed jurists. Yet Garland never even got an up-or-down vote in the Senate, while Republicans expect Gorsuch to be voted on and confirmed. Why all the high political drama?
The answer is simple and has to do with the fact that law is not anything like science — and that what the Supreme Court does has little to do with the dispassionate application of clear laws to clear facts.Read more at: Brian Leiter
The second draft of the Chicago Police Department’s use of force policy is out of step with best practice in policing and underscores the need for “sustained external monitoring and oversight provided by a federal consent decree,” according to Sheila A. Bedi, Attorney with the Roderick and Solange MacArthur Justice Center and Associate Clinical Professor of Law at Northwestern Pritzker School of Law and Craig Futterman, Clinical Professor of Law, University of Chicago Law School.
“Our analysis of the new draft use of force policy and the Reform Framework underscore the need for the Chicago Police Department to be subject to a consent decree that is informed by the communities who have borne the brunt of CPD’s brutality over the decades, monitored by an independent, credible third party and rigorously enforced,” they wrote in comments submitted to CPD. “Even model use of force policies cannot by themselves address the years-long pattern of excessive force and civil rights violations in Chicago. The CPD has long maintained paper policies, such as those for the use of in-car cameras, which have never been enforced. The CPD and the Mayor have proved that they are incapable of putting an end to their pattern of ongoing civil rights violations on their own. The problems and culture that have facilitated police abuse are too entrenched and run too deep. It is critically important that we do not waste this historic opportunity for real and enduring change.”
Bedi and Futterman’s comments stated: “It is also long past time for half measures. Nothing short of the sustained external monitoring and oversight provided by a federal consent decree will bring the change that the people of Chicago and their officers need and deserve.”Craig B. Futterman
How is security against terrorism risk with a domestic origin to be created in an effective and sustainable way? The first instinct of many politicians, especially on the populist right, is to turn to the state and its diverse apparatus of police, military, and intelligence agencies as the canonical supplier of protection against violent risk. The so-called “travel ban” recently enacted in the United States is one example; the aggressive use of Section 44 stop and search powers in the United Kingdom is another.
But a different dynamic is often at play when terrorism incidents are in fact interdicted—a dynamic that the state and its agents are less keen to publicize:
- In 2008, British police arrested a man named Isa Ibrahim (né Andrew Philip), a convert to Islam, in Bristol, England, on the basis of information from the city’s Muslim community. A detective leading the investigation stated, “He was an unknown. Without the information from the community we may not have got to him. Without the community’s help he could have killed dozens of people.”
- On February 17, 2015, three teenagers from the Bethnal Green neighborhood of east London boarded flightsfrom London’s Gatwick airport to Turkey with plans to join the Islamic State. Distraught, their families appealed for their return, but also criticized the Metropolitan Police for failing to share information that might have allowed parents and close friends to have intervened and thereby prevented the girls’ departure. Even if the state would have lacked the authority to act coercively against the girls, family members persuasion and appeals from close relations could have mitigated IS’ allure.
- In 2004, a Jamaican-born imam, Abdullah el-Faisal, was convicted in London of solicitation to murder and provocation of racial hatred. Yet a group of Salafists from Brixton had already brought el‑Faisal’s propaganda in favor of terrorism to the attention of London police some years earlier. The same Brixton-based Salafist group had also attempted (unsuccessfully) to persuade the English-born Richard Reid—later to secure renown as the ‘shoe bomber’—to reject el‑Faisal’s teachings.
In each of these examples—and they can be multiplied—a nongovernmental actor with ties of some sort to an alleged terrorism suspect independently took an action that mitigated the threat of terrorism without priming or prompting by the state. In almost every case, the sheer fact of daily interaction endowed the relevant actor with an epistemic or credibility advantage in comparison to the government. The resulting intervention, to be sure, was not always a success. Sometimes, it was not forceful enough. Other times, the state failed to follow through. But still, each intervention made a terrorist act less likely in expectation. At a minimum, these examples should provoke an investigation of what I call the social production of counterterrorism—social mechanisms external to state apparatus that are conducive to collective security against terrorism—to ascertain better its magnitude and significance, its causal predicates, and its policy entailments.Read more at: Aziz Huq
Over the years, gerrymandering has become synonymous with weirdly-shaped maps of electoral districts, nefarious political maneuvering, and partisanship. But when did gerrymandering become the norm? Is it always used for political gain? And is there any way to stop it from happening? Our latest episode dives into the complicated history of the gerrymander.Read more at: Nicholas Stephanopoulos
Confirmation hearings for President Trump’s nominee to the Supreme Court kick off next week. Neil Gorsuch is seen as a solid conservative in the mold of the man he would succeed, Justice Antonin Scalia. Nevertheless, assuming he is confirmed by the Senate, only time will tell how he rules on the cases expected to come before the court.
In order to understand Gorsuch’s jurisprudence so far and how he may rule in a number of important upcoming cases, Morning Shift talks with two law professors from the University of Chicago Law School. William Baude is the Neubauer Family Assistant Professor of Law at the school. He clerked for Chief Judge John Roberts on the Supreme Court. Dan Hemel is also an Assistant Professor of law at the University of Chicago. He clerked for Assistant Justice Elena Kagan.Read more at: William Baude Faculty: Daniel Hemel
The Congressional Budget Office (CBO) recently released its long-awaited report on the likely budgetary effects of the American Health Care Act. The legislative counterpart to the White House’s Office of Management and Budget, CBO estimates how federal spending and revenues would change as a result of proposed legislative bills. The resulting Republican talking points were familiar: the health care bill’s numbers were biased, they protested, predicting the future is hard. They were familiar not only because they have become Trump’s refrains du jour for “so-called” expertise (think intelligence agency reports or unemployment statistics), but also because they are the same critiques often lobbed at another little-known office that wields outsized influence: the Office of Information and Regulatory Affairs (OIRA).
Among other things, OIRA is charged with reviewing the cost-benefit analyses (CBAs) of executive agencies’ significant regulatory actions. Its mission is to ensure that “the benefits of the intended regulation justify its costs.” A more recent Trump executive order also has the office scrutinizing the “total incremental costs” of new regulations to ensure they remain within fixed regulatory budgets.
Like the CBO Director, the OIRA Administrator is often a punching bag for both the Left and the Right. When you’re trying to maintain a reputation for nonpartisan number-crunching, you can’t please everyone. And like CBO, OIRA must also make predictions about the future amidst uncertainty: How many companies will go out of business as a result of technology-forcing requirements? How many people will no longer get lung cancer as a result of tobacco warning labels? These judgments require answers to hard questions about the right modeling assumptions, discount rates, and time horizons.Read more at: Jennifer Nou
Trump: O.K., who’s next?
Trump: He’s the one, right?
Bannon: Yes. Clarence swears by him.
Trump: That Clarence, he’s my boy!
Gorsuch: Hello, Mr. President.
Trump: Hello, Judge Garland.
Gorsuch: Uh, it’s Gorsuch.Read more at: Geoffrey R. Stone
The Ninth Circuit’s decision to deny en banc review in Washington v. Trump was not, of course, the biggest development yesterday in litigation related to the President’s executive orders restricting entry from seven six overwhelmingly Muslim countries. But the Ninth Circuit’s denial of reconsideration—and, more specifically, Judge Bybee’s dissent from the denial—is worthy of attention nonetheless, not just because of what it tells us about the internal dynamics of what is arguably the nation’s second most important court (sorry, D.C. Circuit), but also because Judge Bybee’s opinion represents the most articulate argument to date by a sitting federal judge for upholding the President’s actions on immigration.
First, reading the tea leaves: Note that Judge Bybee’s dissent was joined by just four of his colleagues, Judges Bea, Callahan, Kozinski, and Ikuta. That tells us something about the prospects in the Ninth Circuit for Trump Travel Ban version 2.0. There are 25 active judges on the Ninth Circuit, seven of whom were appointed by Republican Presidents. Some Ninth Circuit judges might have voted against rehearing en banc because they think that review of a panel decision regarding Trump Travel Ban Version 1.0 is a poor use of the court’s limited resources now that the release of version 2.0 has mooted the issue. So too, some Ninth Circuit judges who voted against en banc review in Washington v. Trump might conclude that version 1.0’s infirmities do not extend to its successor.
Still, if I were the White House counsel or Trump’s new solicitor general, I would not look at the 20-5 vote and like my odds.Read more at: Daniel Hemel
Senator Robert Byrd helped save the Affordable Care Act once already. In December 2009, the wizened West Virginia Democrat overcame fragile health to cast a crucial vote for the act’s passage. It was one of the last votes in the career of the Senate’s longest-serving member: Just weeks after President Obama signed the Affordable Care Act into law, Byrd died at age 92.
Now, nearly seven years after his death, Senator Byrd may ensure that the Affordable Care Act, also known as Obamacare, lives another day. One of Byrd’s many legislative accomplishments over a halfcentury in the Senate was the eponymous “Byrd rule,” which governs the process of budget reconciliation. Republicans on Capitol Hill are trying to use the reconciliation process to repeal and replace the Affordable Care Act. The Byrd rule stands in their way.
Reconciliation is a fasttrack process that allows budget-related legislation to pass the Senate without the prospect of a filibuster. The Byrd rule prevents reconciliation from being used to pass any measure for which the budgetary effects— “changes in outlays or revenues” — are “merely incidental to the non-budgetary components.” Republicans know they lack the 60 votes to break a filibuster in the Senate, so they designed their repeal-and-replace bill to satisfy the Byrd rule’srequirements. Yet there is a surprising flaw in their design — one that has so far drawn little notice, but that Senate Democrats will surely seize on.Read more at: Daniel Hemel
Craig Futterman: Second Draft of Chicago Police Use of Force Policy is a "Significant Walk Back" of Limits
A revised draft policy on officers' use of force now emphasizes the "sanctity of life" and requires officers to use force that is "reasonable and proportional," Supt. Eddie Johnson said.
University of Chicago Law Professor Craig Futterman said the second draft of the rules governing how officers are allowed to use force is a "significant walk back" of limits on how officers can use physical force from the first draft, which was released in October.
"This signals that it is back to business as usual in Chicago," said Futterman, who is a frequent critic of the police department. "And that means the violation of the civil rights of the most vulnerable."Read more at: Craig B. Futterman
Despite burgeoning public enthusiasm in Pennsylvania for an independent redistricting commission, it's not clear if the political will exists to pass the requisite constitutional amendment or whether it could be done in time for the next reapportionment.
But a recent federal court ruling has provided opponents of gerrymandering a new avenue to pursue.
While Fair Districts PA and other organizations are fighting a multi-year battle to ensure parity in the next round of redistricting, a November ruling by the U.S. District Court for the Western District of Wisconsin might have opened up opportunities for a quicker fix to Pennsylvania’s current, much-maligned system.
Efficiency gap: A panel of federal judges ruled 2-1 in favor of a constitutional challenge to Wisconsin’s district maps. The challenge relied, in part, on a new mathematical standard to measure the extent of gerrymandering, dubbed the “efficiency gap model.”Read more at: Nicholas Stephanopoulos
Judge Gorsuch has approvingly cited Philip Hamburger’s book, Is Administrative Law Unlawful?, in three opinions.* That is three times the number of opinions citing Hamburger’s book written by all the judges in all the federal circuit courts put together. Is this a matter of significance?
Hamburger argues that “administrative power” is unconstitutional. This is a radical view. I mean a radical view in the sense that, if taken seriously, it would require the invalidation of much of the administrative state. Agencies like EPA and the Fed could continue to exist, but only to gather facts, monitor industry, and bring claims against people and companies based on statutes enacted by Congress. They would not be allowed to issue regulations, that is, rules. Only Congress could do that.Read more at: Eric A. Posner
Despite Donald Trump’s campaign promise that he “won’t take even one dollar” of salary as President, the White House now says that the President is receiving his monthly paychecks and that he will donate his salary to charity at the end of the year. This raises a number of questions:
— The President is paid $400,000 in monthly installments. $400,000 divided by 12 months equals $33,333.33 per month. The President apparentlyreceives his paycheck on the 20th day of the month, with his first paycheck on February 20. So by December 31, Trump will have received 11 paychecks totaling $366,666.63, not the full $400,000. Will he donate $400,000 nonetheless?
— Assuming that the answer is “no” and that the President’s charitable contribution is limited to the amount received by end of year, what about interest? If Trump immediately deposits each paycheck into an Ally savings account with a 1.00% annual percentage yield (compounded daily), then he will have approximately $368,294.45 on December 31, of which $1,627.82 represents interest income. Will he donate the interest to charity as well?Read more at: Daniel Hemel
A recent surge of reports about Uber’s alleged violations of law and fair dealings is portraying the company as a bully, roaring over regulations aimed to slow down its aggressive path to transportation dominance. A few cities are stepping up their efforts to regulate aspects of Uber’s business, and a tiny but growing “DeleteUber” backlash has stirred up.
This ruckus is misguided in two profound ways. First, none of the reported violations state a real threat or concern. Second, Uber does present a potential risk, but it is going completely unnoticed. Let me explain.Read more at: Omri Ben-Shahar
On Nov. 11, 2016, Kalven made a FOIA request for the records of the 11 completed investigations by the Office of the Inspector General of Chicago police officers involved in the cover-up of the shooting of Laquan McDonald by Jason Van Dyke provided to the department, along with any attachments, according to the lawsuit.
CPD denied the request, citing Illinois FOIA exemptions of documents “of any lawfully created State or local inspector general’s office that would be exempt if created or obtained by an Executive Inspector General’s office under the Act,” according to the lawsuit.
However, Kalven’s lawsuit claims the denial was improper because the act was not meant to cover investigative reports. The Illinois Court of Appeals has ruled that a public body’s records of completed investigations into police misconduct are not exempt.
“The CPD’s denial is based on a misreading of the relevant law,” Craig Futterman, who is representing Kalven in the lawsuit, said in a statement. “The IG reports, now in the possession of the CPD, are the equivalent of closed IPRA investigations. Under Kalven v. Chicago, they are public information.”Read more at: Craig B. Futterman
Of the many peculiar incentives that would be generated by the House Republicans’ proposed ACA replacement, one that hasn’t drawn much attention yet is the incentive for firms with low- and middle-income workers to drop their employer-sponsored health insurance plans. The incentive arises from the fact the premium credit proposed by House Republicans would be available only to taxpayers who aren’t eligible for insurance through their employer. In many cases the premium credit would be more valuable than the exclusion of employer contributions to employee health plans under existing federal income and payroll tax laws. In those circumstances, employees would be better off if their employer dropped coverage so that they could claim the more generous credit.
Consider a hypothetical family of four with adjusted gross income of $80,000 and health insurance premiums of $20,000 per year. (The average annual premium for employer-sponsored family health coverage was $18,142 in 2016, according to the Kaiser Family Foundation; I’m using a round number to make the arithmetic easy.) With the standard deduction plus four personal exemptions, this family falls safely into the 15% income tax bracket(and would still even without the exclusion of employer-sponsored health insurance).
If an employer pays the $20,000 premium, the value of the income tax exclusion is $3,000. If we add in Social Security and Medicare taxes (ignoring any future benefits that family members will receive as a result of the Social Security benefits formula), then that’s an additional 15.3%, or $3,060. All in, the value of the federal income and payroll tax exclusions is $6,060.Read more at: Daniel Hemel