The Volokh Conspiracy

From Montana Code § 13–35-218, titled “Coercion or Undue Influence of Voters,” first enacted by referendum in 1913 and still in effect:

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person’s religious duty or the interest of any corporation, church, or other organization.

Today, this would be pretty clearly seen as an unconstitutional speech restriction, but apparently in 1913 it was seen as a good government measure. Similar laws were enacted in Nevada and Oregon around the same time.

That’s by Christopher Gore, Massachusetts Governor, speaking in 1809, and reminding us that there is nothing new under the sun:

Already, we have but too much reason to deplore the violence and animosity of party spirit. It has gone far to destroy social intercourse, and all the endearing charities of life, between ancient friends and neighbours, and to substitute political opinions for virtue, intelligence, and patriotism. Already the wise and good of all parties, entertain apprehensions, lest the interests of the people and the duties of government, might be forgotten in the solicitude for party power, and the hatred of political opponents.

Fill in your own, for fun and education! Entertainment for the whole family. Ages 4 and up.

I blogged a lot about this topic a few years ago when the Boucher case was pending; although an appeal was filed in that case in the First Circuit, the appeal was dropped so the appellate court never decided it. In any event, several readers point me to a new decision on the topic, United States v. Fricosu, out of the District of Colorado.

Based on a quick read of the opinion, the legal analysis in the Fricosu opinion is not a model of clarity. But it strikes me as a replay of the district court decision in Boucher: The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a “foregone conclusion” that dissipated the Fifth Amendment privilege.

If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a “foregone conclusion” and the Fifth Amendment privilege cannot block the government’s application.

UPDATE: A reader asks what happens if a person refuses to comply with the order or claims to have forgotten the password. Here’s the Second Circuit’s summary of the law in In re Weiss, 703 F.2d 653 (2d. Cir. 1983):

Testimonial obduracy by a witness who has been ordered by the court to answer questions may take any of a number of forms. The witness may refuse categorically to answer. Or he may respond in a way that avoids providing information, as, for example, by denying memory of the events under inquiry, denying acquaintance with targets of the inquiry, or denying knowledge of facts sought to be elicited. Or he may purport to state informative facts in response to the questions while in fact testifying falsely.

Any of these three forms of obduracy may be met with the imposition of one or more judicial or governmental sanctions. For example, when the witness has refused to answer questions, he may be adjudged in civil contempt and ordered to answer, e.g., Shillitani v. United States, supra, 384 U.S. at 370, 86 S.Ct. at 1535; In re Grand Jury Investigation of Giancana, 352 F.2d 921 (7th Cir.), cert. denied, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362 (1965); or he may be adjudged in criminal contempt and punished for his past failure to answer, e.g., Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). In some cases both coercive and punitive sanctions have been imposed. See, e.g., Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957); United States v. Petito, 671 F.2d 68 (2d Cir.1982); In re Irving, supra.

If the witness has responded falsely to the questions propounded, he may be subject to prosecution for a criminal offense in violation of, e.g., 18 U.S.C. § 1621 (perjury), or 18 U.S.C. § 1623 (false declarations before grand jury or court). If the witness’s false testimony has obstructed the court in 663*663 the performance of its duty, the witness may be met with sanctions for civil contempt, see Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919), or criminal contempt, see In re Michael, 326 U.S. 224, 227–29, 66 S.Ct. 78, 79–80, 90 L.Ed. 30 (1945).

The middle category of testimonial obduracy, i.e., the witness’s equivocal responses or disclaimers of knowledge or memory, has also been dealt with as contemptuous conduct, warranting sanctions that were coercive, punitive, or both. It has long been the practice of courts viewing such testimony as false and intentionally evasive, and as a sham or subterfuge that purposely avoids giving responsive answers, to ignore the form of the response and treat the witness as having refused to answer. See, e.g., In re Schulman, 167 F. 237 (S.D.N.Y.1909), aff’d, 177 F. 191 (2d Cir.1910); United States v. Appel, 211 F. 495 (S.D.N.Y.1913); United States v. McGovern, 60 F.2d 880, 889 (2d Cir.), cert. denied, 287 U.S. 650, 53 S.Ct. 96, 77 L.Ed. 561 (1932); Schleier v. United States, 72 F.2d 414 (2d Cir.), cert. denied, 293 U.S. 607, 55 S.Ct. 123, 79 L.Ed. 697 (1934); In re Eskay, 122 F.2d 819 (3d Cir.1941); Howard v. United States, 182 F.2d 908 (8th Cir.), vacated and remanded as moot, 340 U.S. 898, 71 S.Ct. 278, 95 L.Ed. 651 (1950); Richardson v. United States, 273 F.2d 144 (8th Cir.1959); Martin-Trigona v. Gouletas, 634 F.2d 354, 357–59 (7th Cir.), cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980); In re Battaglia, supra, 653 F.2d at 422; In re Bongiorno, supra.

In In re Schulman, for example, the district court found that a bankrupt’s repeated responses of “I don’t remember” and “What do you mean?” to questions concerning the disposition of his assets in the six months preceding his declaration of bankruptcy were disingenuous and evasive. The court thus construed the responses as refusals to answer and imposed a combination of civil and criminal contempt sanctions by ordering the witness imprisoned for six months, with the proviso that if the witness chose, after five days, to provide nonevasive answers, he would be released from prison. This Court affirmed, stating as follows:

The testimony as it appears in the record evinces a deliberate purpose to conceal the truth and prevent the trustee from becoming possessed of facts which would lead to a recovery of the missing property. The witness was being asked regarding transactions directly within his knowledge and facts which he must have known. When, therefore, he answered repeatedly “I don’t remember,” it is obvious that he was deliberately withholding information to which the trustee was entitled. In effect his attitude was one of defiance. He did not affirmatively tell the referee that he refused to disclose the facts which would enable the trustee to follow the property, although these facts were well known to him, but his conduct produced the same result as if he had stated his purpose openly.

177 F. at 193.

A commenter on the thread about the 1901 case in which the court rejected (on statutory grounds) a prosecution for expelling someone from church based on how he voted writes:

It goes almost without saying that religious freedom was not at issue in this case because the First Amendment would not be incorporated against the states until Gitlow v. New York, 268 U.S. 652 (1925), a quarter of a century later.

Actually, that’s not so (even besides the detail of exactly when the Free Exercise Clause was incorporated against the states). Throughout American history, each state has had its own Constitution and, almost always, its own Bill of Rights; before incorporation, the chief protection against state government action was precisely those Bills of Rights. The 1776 North Carolina Constitution, for instance, provided that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience” and that “all persons shall be at liberty to exercise their own mode of worship: Provided, that nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses, from legal trial and punishment.”

As a result, courts before incorporation could and did consider whether state government action violated its state religious freedom provisions, state free speech provisions, and so on. So if the litigants could well have raised a religious freedom argument in this case; if they had, and if the court had concluded that statute did indeed purport to limit church expulsion decisions, the court would have had to consider the constitutional objection.

Whether the challengers of the statute would have succeeded under this counterfactual is a different question. But while nearly all free speech, free press, and religious freedom challenges were generally rejected by early courts, I suspect that this was largely because the restraints were usually well-established and endorsed by tradition, which counted a lot to early courts (and still counts a lot to courts today). A restraint on churches’ ability to break off relations with their members would have been so unusual that I think it might well have been held unconstitutional under the North Carolina Constitution. But of course the court avoid this by concluding that there was indeed no such highly unusual restraint.

In my first post I said that my “cliffhangers” range from the merely interesting all the way up to full-blown constitutional crises. My favorite chapter in Constitutional Cliffhangers, Chapter 4, definitely qualifies as a crisis. Here is the opening:

The United States is deeply divided over the war. Everyone agreed that we needed to fight back when Ruritania attacked our bases, but after two years of intensive combat, things are not going well. Addressing the nation, President Joanna Lewis announces her intention to seek a negotiated settlement. The half of the country that agrees with her breathes a sigh of relief.

The other half boils with rage. Responding to the president, Speaker of the House Peg Wilton says, “We are losing this war — not because our cause is hopeless, but because we have a cowardly commander in chief. We should never surrender to fascist aggression.” “Coward” is a mild epithet compared to what other hawks call President Lewis.

Complicating matters is that a few weeks ago, the vice president suffered a fatal heart attack. President Lewis nominated a candidate to fill the vacancy, but the hawks in Congress have stalled the vote. They are motivated by their distaste for the nominee’s unsurprisingly dovish position on the war, but everyone notices that while the vice presidency is vacant, Speaker Wilton is next in line for the presidency (followed by the president pro tempore of the Senate, and then members of the cabinet, starting with the secretary of state).

As President Lewis arrives at a public event one morning, an assassin detonates a huge bomb, killing the president and dozens of others. In a homemade video produced before the assassination, the bomber decries “the coward Lewis” and announces his intention to kill Lewis so that the stalwart Wilton will become president and continue the war. Within two hours of the assassination, the video has saturated television and the Internet.

The assassin seemingly gets his wish. Wilton condemns the assassination in the most strident terms, obviously, but she takes an oath of office that morning as acting president. Her political position is tenuous. Supporters of the martyred President Lewis blame Speaker Wilton for fueling the rhetoric that led to Lewis’s assassination, and for her role in stalling to keep the vice presidency vacant. In other words, they feel as though the country has just suffered a coup d’état. They latch onto a legal argument that, just hours earlier, had been an academic one: that it is unconstitutional for the succession law to include members of Congress. Wilton’s opponents argue — with the support of several prominent legal experts — that the dovish secretary of state, John Allen, is the legitimate acting president.

Secretary Allen decides to contest Wilton’s claim to the presidency. He too takes an oath of office as acting president and, without using force, he assumes physical control of the White House. “The struggle over our war policy has been ugly, but it’s a political struggle,” he says in a national address from the Oval Office. “In America, we don’t settle political questions by mass murder.”

It has only been ten hours since the assassination — a shocking and surreal day. No violence has broken out yet, but it feels like only a matter of time before it does. No one is in the mood to compromise, and control of the government and the military hangs in the balance as Allen and Wilton vie for control.

This is my favorite chapter for many reasons. The first is that I can’t resist the potential drama of the story (a novel is in the works). The second (and my main focus in this post) is that it highlights the interaction between law and politics.

The legal issue here is complicated, but to summarize briefly: The Constitution’s Succession Clause empowers Congress only to place “officers” in the line of succession, and the Speaker of the House and the President Pro Tem of the Senate (whom the statute places second and third in line, respectively) are arguably not “officers” as the Constitution uses the term. The secretary of state clearly is an officer. (I am guessing the commenters might get into the details more...)

The role of politics here is key. Even though the weight of scholarly opinion is (by my measurement) on the secretary of state’s side here, I concede that the Speaker could assume office without controversy in most cases. The general public would accept the result. Those that did not would either lack standing to challenge the succession law, or (like the secretary of state, who would have standing) would lack the political and personal will to do so.

But in a situation like the one in my opening scenario — in which the Speaker is of a different party, had a hand in maintaining the vacancy in the vice presidency, and arguably incited the vacancy in the presidency — the secretary of state might make a play for control and the country could be in real trouble.

We cannot be sure that the winner of this struggle would be the side with the stronger constitutional arguments. We can be sure that the struggle itself would shake the foundations of our government.

This odds of this happening might be long, but the stakes are incalculable. On the other side, the benefits of the status quo are minimal. The justification usually offered for Speaker succession (that the Speaker is a top elected official, representing the whole country, while cabinet members are mere appointees) doesn’t amount to much when compared to the potential peril it represents.

Even though this makes it a good candidate for reform from a cost-benefit standpoint, politics again make it hard to see this getting fixed. For various reasons, Congress is better at addressing problems that have already occurred than it is at preventing future ones. Congress is also driven by interests and the “cliffhanger-reform” movement is politically weak, while the “preserve the prestige of the Speaker” movement has a natural constituency at the Capitol.

Law, politics, and the Speaker and secretary of state trying to strangle each other. All of this and more in Constitutional Cliffhangers.

Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and Thursday, and conclude with some general lessons on Friday. I look forward to your comments, and I’ll try to post some responses to them too.

My book is about what I call constitutional cliffhangers, all of them of the presidential variety. I define these cliffhangers as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.” They range from the merely interesting all the way up to full-blown constitutional crises.

In the middle six chapters, I sketch out hypothetical situations in which (1) a president is criminally prosecuted; (2) a president pardons himself; (3) cabinet members try to oust an allegedly disabled president, who in turn tries to oust them; (4) the secretary of state and the Speaker of the House fight for control of the presidency after the president and vice president are killed; (5) an ex-president is impeached; and (6) a two-term president attempts to stay in power.

In each case there are legal arguments on both sides, complicated by intense politics. The politics are often decisive in cases like these, so it might seem pointless to spend too much time debating the legal niceties. I’ll address that important issue on Friday.

In the remainder of this introductory post, I’ll address a common question that topics like mine evoke: “Why worry about a bunch of crazy stuff that will never happen?”

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late. Consider this passage from my introductory chapter about the lessons we can learn from our most contentious presidential election:

The whole election turned on a few hundred disputed votes in Florida. There had been ultra-close presidential elections before, and there had been ambiguous results in individual states before; it was only a matter of time before both happened at the same time. Unfortunately, no steps had been taken to prevent it.

The problem was that there were no rules for resolving a dispute like this. The quintessential American mixture of politics and litigation filled the void. The Republicans fought to defend their initial lead; the Democrats fought to open things back up and recount the votes. The Republicans controlled key posts in the state government; the Democrats won key victories in Florida state court. The Republicans took their case to Washington, D.C., where Republican-appointed Supreme Court justices declared that there was no time for recounts, handing the election to the Republicans. And so, in 1877, Rutherford B. Hayes became our nineteenth president.

You might recall some similar things that happened in 2000. The underlying quandary — an electoral system in which it is easy for the margin of error to greatly exceed the margin of victory — was no secret before 1876, let alone in 2000. And yet it dangled out there unsolved, waiting to snag both elections. For the most part, it dangles still.

That’s the spirit of Constitutional Cliffhangers.

I’ll be posting again later today with a look at my favorite cliffhanger (Chapter 4 in the book), a succession crisis in which the secretary of state and the Speaker of the House wrestle, figuratively, for control of the White House.

Tom Goldstein weighs in with some excellent points about United States v. Jones over at SCOTUSblog.

Tad DeHaven of the Cato Institute has a good post highlighting the data on state governments’ growing dependence on federal funds. Since 2001, federal grants have risen from 25.7% of state government spending to 34.1% today. Most of that growth has occurred since the present recession began in 2008.

One of the main distinctive benefits of American federalism is that, historically, state governments have had to raise most of their funds from their own taxpayers, rather than relying on grants from the feds. This gives states incentives to compete for taxpayers and improve the quality of their policies and public services, thereby increasing the effectiveness of voting with your feet. I cover these points in more detail here.

In most other federal systems, the central government provides the lion’s share of subnational governments’ funding. If present trends continue, the United States may join this trend. State governments will increasing look to Washington for most of their funds, and incentives for competition and innovation will be undermined. It’s possible that fiscal policy will return to “normal” as the economy improves. But state governments are likely to lobby for current grant levels to continue even after the recession ends. Current federal subsidy levels could easily become the new normal.

I’m delighted to report that Prof. Brian Kalt will be guest-blogging this week about his new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. From the book summary:

The United States Constitution’s provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. In this compelling and fascinating book, Brian Kalt envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president’s attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have.

Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events Kalt describes would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.

I much look forward to Prof. Kalt’s visit.

For those interested, I’ll be giving a variety of talks in the coming weeks, including the following:

• I’ll be speaking to the University of Michigan Law School Federalist Society chapter on “The Individual Mandate Litigation and the Future of Federalism,” Jan. 25 at 12:00pm, 120 Hutchins Hall.
• I’ll be debating the constitutionality of the individual mandate with David Orentlicher of Indiana at the University of Utah S.J. Quinney College of Law’s  28th Annual Jefferson P. Fordham Debate, Feb. 6 as 12:15pm.
• I’ll be debating Professor Neil Wise on EPA regulation of greenhouse gases under the Clean Air Act to the Rutgers-Camden chapter of the Federalist Society, Feb. 8.
• I’ll be discussing EPA regulation under the Clean Air Act with Stephanie Tai before the Madison, Wisconsin lawyers chapter of the Federalist Society, Feb. 22.

[Post updated]

Earlier today, the Stanley Cup champion Boston Bruins visited the White House. But playoff MVP goaltender Tim Thomas chose not to attend. He issued a very libertarian-seeming statement explaining his reasons:

I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People.

This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government.

Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL.

This is the only public statement I will be making on this topic. TT

For reasons I described here, I don’t think we should attach much weight to the political views of sports and entertainment celebrities. That holds true even in the rare cases like this one where a celebrity makes a political statement I agree with. Still, I thought Thomas’ decision was interesting, if only because there are so few libertarian celebrities out there. I don’t know if I would have rejected the invitation to the White House were I in Thomas’ position. But I certainly sympathize with his reasons for doing so, including the point about both parties bearing responsibility for today’s overgrown federal government.

UPDATE: Various media reports indicate that Thomas is a fan of Glenn Beck, who is far from uniformly libertarian, and occasionally endorses ridiculous conservative conspiracy theories. So Thomas may well be more of a conservative himself. That said, the reasons he gave in his statement are ones that most libertarians would agree with.

It’s arguable that Thomas should have gone to the White House anyway, on the grounds that events like this are really about paying tribute to the office of the presidency rather than the policies of the present occupant of it. On the other hand, presidents of both parties do these sorts of events in part because they see a political advantage in it. On balance, if I were Thomas, I would probably have gone to the event anyway, since it doesn’t imply endorsement of the president’s agenda or of the general course of federal policy over the last few years. But I can certainly understand Thomas’ reasons for making the opposite decision.

Today’s decision in United States v. Jones holds that the Katz test is not the exclusive test for what is a Fourth Amendment search: When the government conducts a common-law trespass into a person, house, paper, or effects, that trespass is a search if it is done “for the purpose of obtaining information.” Three questions come to mind about what this means:

1) What kind of “trespass” counts for purposes of this test? As Blackstone noted in his Commentaries (Vol. 3. Ch 12), at common law there were two understandings of “trespass” — a broad one and a narrow one. Blackstone wrote:

Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live, whether it relates to a man’s person or his property. Therefore, beating another is a trespass, for which (as we have formerly seen) an action of trespass vi et armis in assault and oattery will lie; taking or detaining a man’s goods are respectively trespasses, for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also, non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense: for which we have already seen(a) that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

But, in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property.

So which conception of trespass does Scalia mean to adopt — the broad one or the narrow one? Scalia says that he has “no doubt” that there was a trespass here, but he doesn’t say why or what kind of trespass he has in mind. Scalia quotes Entick v. Carrington for the idea that setting foot on a neighbor’s “close” and “tread[ing] upon his neighbor’s ground” is a trespass. It seems that Entick was relying on the narrow trespass concept of trespass to land, which, after all, was the cause of action alleged in Entick. That obviously isn’t the case in Jones, though: The agents installed the GPS device when the car was parked in a public parking lot, so there was no trespass to land in the traditional sense.

In his concurring opinion, Justice Alito indicates that he takes the majority to be referring to a trespass to chattels cause of action, but as far as I can tell the majority never establishes this. Moreover, the common law doesn’t seem to provide an answer: The common law of searches and seizures provided a defense to a civil tort action, not an independent cause of action. So it’s hard to know what kind of conduct counts as a “trespass” for purposes of the new Fourth Amendment test.

2) Did Jones unintentionally make the use of undercover agents and informants illegal, at least without a warrant or probable cause? This is a long shot, to be sure, but it’s not a frivolous argument. The common law of trespass included the doctrine of trespass ab initio, by which a person who was permitted to come on to your land could be guilty of trespass if they engaged in some sort of misconduct once there. In the first Fourth Amendment challenge to the use of informants, On Lee v. United States, 343 U.S. 747 (1952), the defendant tried to invoke this doctrine. Lee sold opium from his laundry store and one day made incriminating statements to his friend Poy. It turned out that Poy was an undercover informant wearing a wire, and the recording of Lee’s statements was used against Lee at trial. Lee argued (among other things) that Poy’s misleading him rendered Lee a trespasser ab initio, such that Poy’s entry was a Fourth Amendment search. Justice Jackson rejected the argument:

Petitioner contends, however, that Chin Poy’s subsequent ‘unlawful conduct’ vitiated the consent and rendered his entry a trespass ab initio.

If we were to assume that Chin Poy’s conduct was unlawful and consider this argument as an original proposition, it is doubtful that the niceties of tort law initiated almost two and a half centuries ago by the case of the Six Carpenters, 8 Coke 146(a), cited by petitioner, are of much aid in determining rights under the Fourth Amendment. But petitioner’s argument comes a quarter of a century too late: this contention was decided adversely to him in McGuire v. United States, 273 U.S. 95, 98, 100, 47 S.Ct. 259, 260, 261, 71 L.Ed. 556, where Mr. Justice Stone, speaking for a unanimous Court, said of the doctrine of trespass ab initio: ‘This fiction, obviously invoked in support of a policy of penalizing the unauthorized acts of those who had entered under authority of law, has only been applied as a rule of liability in civil actions against them. Its extension is not favored.’ He concluded that the Court would not resort to ‘a fiction whose origin, history, and purpose do not justify its application where the right of the government to make use of evidence is involved.’ This was followed in Zap v. United States, 328 U.S. 624, 629, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.

By the same token, the claim that Chin Poy’s entrance was a trespass because consent to his entry was obtained by fraud must be rejected. Whether an entry such as this, without any affirmative misrepresentation, would be a trespass under orthodox tort law is not at all clear. See Prosser on Torts, s 18. But the rational of the McGuire case rejects such fine-spun doctrines for exclusion of evidence.

Does the rationale of McGuire survive Jones? If the test for a Fourth Amendment search is established by common law trespass doctrine, then I’m not sure why the “fiction” of trespass ab initio shouldn’t be restored to the Fourth Amendment despite McGuire. As a practical matter, I doubt the Supreme Court would go this way. But if you take the majority opinion in Jones at face value, it seems like an argument worth making.

3) What happens to Kyllo’s “general public use” exception? I read Jones as relying on Kyllo for the idea that there is more than just the Katz test to determine what is a search. I gather then that the Court is casting Kyllo as an example of a case which was not a Katz “reasonable expectation of privacy” case but rather was a common law trespass case. If that’s right, then does that mean the “general public use” inquiry is no longer applicable? After all, the general public use idea was rooted in Katz cases, not the common law of trespass. If use of a thermal imaging device was a search because it was a common law trespass, then presumably it should stay a search regardless of how common thermal imaging devices may be.

State v. Rogers, 38 S.E. 34 (N.C. 1901) (paragraph breaks added); I would suspect that today there wouldn’t even be a prosecution in such a case, even if the statute were more broadly worded:

The defendants were indicted under section 2715 of the Code ...: “Any person who shall discharge from employment, withdraw patronage from, or otherwise injure, threaten, oppress or attempt to intimidate any qualified voter of the state, because of the vote such voter may or may not have cast in any election, shall be guilty of a misdemeanor.”

The indictment charges the defendants with having injured, threatened, oppressed, and attempted to intimidate the prosecutor, a duly-qualified voter, by expelling him from the church of which he and they were members, on account of his having voted the Democratic ticket at the election held in August, 1900. The statute, being penal, must be construed strictly, not by implication, or otherwise than by its strict words and plain signification.

The object of the statute is to secure to the voter the exercise of the elective franchise free from pecuniary loss, personal injury, or physical restraint, neither element of which is embraced in his expulsion from the church. The injury or oppression, if any, done to the voter, was not of a physical nature. While he may have felt mortified or humiliated in being excluded from the fellowship of his associates in the exercise of the rites of that body of Christian believers holding the same creed and acknowledging the same ecclesiastical authority, and to that extent injured and oppressed, yet he suffered no loss of property or gain, nor was he in any way restrained of his liberty or otherwise controlled in the exercise of his personal conduct.... [Quashing of the indictment a]ffirmed.

UPDATE: By the way, it turns out that North Carolina was closely split in 1900, with 54% of voters voting for the Democrats. The expulsion was thus likely based on the particular views of this church, and not on some broad social anti-Democrat sentiment.

FURTHER UPDATE: I just ran across a 1891 Arkansas statute that did ban threat of expulsion from a church based on one’s vote: “No person shall coerce, intimidate or unduly influence, any elector to vote for or against the nominee of any political party, or for or against any particular question or candidate, by any threat or warning of personal violence or injury, or by any threat or warning of ejectment from rented or leased premises, or by the foreclosure of any mortgage or deed of trust, or of any action at law or equity, or of discharge from employment, or of expulsion from membership in any church, lodge, secret order or benevolent society, or by any oath, or affirmation or secret written pledge.” I could find no cases, though, applying this statute.

I’ve recently seen a couple of cases in which someone seems to be promoting lawyers’ Web sites using spam blog comments. Here’s a sample of the most recent incident (with the name of the lawyer blanked out, because he assured me that he told his SEO company to stop doing this):

Aattorney
electricalexamanswers@gmail.com
27.0.111.218
Submitted on 2012/01/14 at 2:41pm
Hi Todd Zywicki,
Mr __ __ like like as attorney cleveland tn.
He is also a law blogger.After he visited your site.He explained some great news from your site.
thanks....

Aattorney
__.__123@gmail.com
27.0.111.218
Submitted on 2012/01/12 at 8:31am
Thank you for your great article.
attorney cleveland tn
cleveland tn attorneys
attorneys in cleveland tn
us attorney cleveland
lawyers in cleveland tn

The first comment included one link to a page on the lawyer’s blog; the second included five such links. When this sort of thing happened (on two occasions, involving two different lawyers), I got in touch with the lawyers, who reported that (1) they had hired some company to get their sites better placed in search engine results, and (2) now that they had learned what the company had done, they were telling the companies to stop doing it (or stopped working with the companies altogether) — understandable, since this sort of thing is a good way to get unfavorable attention online rather than favorable attention.

In any case, I think this might be a helpful alert to lawyers who are hiring someone to try to promote their sites: It’s possible that the promotion might consist of behavior that is par for the course for purported penis enlargement products, but not really in keeping with the sort of reputation that lawyers generally seek to cultivate.

One of the puzzles of Jones is how Scalia’s opinion ended up being the majority opinion of the Court, while Justice Alito’s view is merely a concurring opinion. The puzzle is that the apparent 5th vote for the Jones majority, from Justice Sotomayor, wrote a concurrence strongly hinting that she would accept a far broader rationale something akin to that in Justice Alito’s concurrence in the judgment. The question is, why sign on to Scalia’s opinion instead of Alito’s?

There are a bunch of possible reasons, of course, but one possibility involves the timing of circulated drafts. The Chief assigned the majority opinion to Scalia, who had floated his theory of the case at oral argument. Imagine Scalia circulated his majority opinion quickly, and Sotomayor joined it pretty soon after that. Some time passed, and then Justice Alito sent around his concurring opinion. Justice Alito’s opinion is mostly a criticism of Scalia’s approach, but it then has a relatively brief pro-privacy section at the end that addresses questions not reached by Scalia’s opinion. Imagine Sotomayor read Alito’s opinion and really liked that part of Alito’s opinion. But she had already signed on to Scalia’s draft majority, and it’s considered bad form to un-join an opinion after signing on. It’s especially bad form if you followed the common practice of asking for a few changes to the draft majority opinion as a condition of signing it. Also, while Alito hinted at how he would decide the case, that section is relative brief and quite vague. So Sotomayor might have stuck with Scalia’s opinion as a matter of propriety and good internal court relations, and then written her solo concurring opinion indicating her agreement with much (although by no means all) of Alito’s opinion.

Of course, that’s just one possibility among many.

UPDATE: Over at SCOTUSblog, Tom Goldstein notes a point that I simply missed on my initial reading of the opinions: Alito’s concurring opinion not only rejects the new trespass theory, but further indicates that the installation and short-term monitoring is fine — it’s only long-term monitoring that Alito would say is regulated by the Fourth Amendment. So Sotomayor’s choice wasn’t between a narrow and broad theory, as I had initially surmised, but between two very different theories. Sotomayor joined one and indicated strongly that she would likely favor the other, but she didn’t need to reach that; doing would have required a United States v. Booker-esque combination of two sets of Justices, which in addition to being complicated wasn’t needed because at least the result was settled in this case.

Although the big news today is the Supreme Court opinion in Jones, we also have the Fourth Circuit dismissing the Padilla appeal in a Bivens claim.  Lawfare’s Steve Vladeck explains and comments:

Jack [Goldsmith] just flagged the Fourth Circuit’s unanimous 39-page opinion throwing out Lebron v. Rumsfeld–one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an “enemy combatant.” Although Padilla’s allegations (if true) would have stated serious violations of his constitutional rights arising out of his long-term incommunicado detention as an “enemy combatant” (and his alleged abuse while in custody), the panel (Wilkinson, Motz, Duncan) declined to recognize a Bivens remedy. There’s a lot to say about Judge Wilkinson’s disturbing opinion for the court–and I’ll try to explain why it’s disturbing below the fold.

The short of Judge Wilkinson’s analysis is encapsulated within the following two passages:

Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence. Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government. Together, the grant of affirmative powers to Congress and the Executive in the first two Articles of our founding document suggest some measure of caution on the part of the Third Branch. . . . When, as here, these two branches exercise their military responsibilities in concert –- Congress by enacting the AUMF and the President by detaining Padilla pursuant thereto—the need to hesitate before using Bivens actions to stake out a role for the judicial branch seems clear.

In other words, once Congress triggers the use of military force, Bivens should not generally be available if government officers violate the rights of U.S. citizens while ostensibly acting under such authorization. And if that logic wasn’t clear enough, Judge Wilkinson concludes:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the though that those involved would face prolonged civil litigation and potential personal liability.

Vladeck, we should add, is not persuaded by the Fourth Circuit’s analysis:

[T]o hold, as the Fourth Circuit does, that these factors categorically cut against the availability of a Bivens remedy is to forswear any Bivens claim challenging any governmental abuses committed in the name of protecting national security, even those in cases in which state secrets or qualified immunity would not bar relief–that is, cases in which there is no realistic potential for the disclosure of classified national security information and it is clear that what the government officers did was unlawful at the time of their conduct. Whether or not that was true in Padilla’s case, this is a disturbing result going forward.

In its opinion below in what became United States v. Jones, the D.C. Circuit introduced a new “mosaic” theory of the Fourth Amendment. Under that theory, whether government conduct is a search is measured not by whether an individual act is a search, but rather whether the collective sum of the different acts over time amount to a search. Although that argument didn’t get much play in the Supreme Court briefs or at argument, it surfaced this morning in the Jones opinions. And perhaps the most fascinating aspect of the Jones opinions is that there appears to be a majority ready to embrace the mosaic theory, at least in some form.

Let’s start with Justice Alito’s concurring opinion for himself, Ginsburg, Breyer, and Kagan. Alito’s concurring opinion is mostly devoted to criticizing Scalia’s new trespass theory. But near the end of his concurrence, Alito then turns to how he would decide Jones:

[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques

It sounds like Alito is using what I have elsewhere called the “probabilistic” approach to the reasonable expectation of privacy test, where an expectation of privacy is reasonable based on what a reasonable person would expect, and then he is allowing for at least some sort of mosaic aggregation. Thus, echoing the D.C. Circuit, Alito appears to be looking at whether the government conduct taken over time collects an amount of information that is somehow surprising or unexpected.

In his majority opinion, Justice Scalia concludes that the mosaic theory need not be addressed, but that it is a “novelty” that raises “thorny problems” if embraced. Responding to Alito, Scalia writes:

There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

That brings us to Justice Sotomayor, whose concurring opinion was sort of with Scalia, sort of with Alito, and then hints at being even more pro-privacy than either one. Sotomayor calls the Scalia rationale for the case “an irreducible constitutional minimum,” but she then goes on to look favorably on Alito’s opinion:

As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Post, at 13. . . .

Sotomayor then goes on to discuss the nature of GPS surveillance specifically, and then writes:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

Fascinating. What’s particularly interesting to me is that the mosaic theory seems like a revolutionary new approach to Fourth Amendment law, and yet here 5 Justices seem ready to embrace it without even really recognizing how dramatic the change might be or what it might mean. Perhaps that means that the Justices see it as having some non-obvious limitation that makes it narrower than it might seem. Perhaps it only would apply to GPS devices or beepers, for example? Or perhaps the Justices just didn’t think too deeply about the issue and the complications it raises — perhaps because Scalia came forward with his new trespass test and any other theory would just be dicta?

Either way, the biggest surprise of Jones is that the mosaic theory lives. And it may have five votes. As always, stay tuned.

A lot of the early press reports on United States v. Jones reports that the Supreme Court held that the government needs a warrant to install a GPS device. But that’s not correct, actually. The Court merely held that the installation of the GPS was a Fourth Amendment “search.” The Court declined to reach when the installation of the device is reasonable or unreasonable. As the opinion explains on page 12 of the slip opinion:

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).

So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”

For the last 40 years, the hornbook law of what amounts to a Fourth Amendment search was that a search occurs when government conduct violates both a subjective expectation of privacy and an objective reasonable expectation of privacy. As of this morning’s decision in Jones, the new doctrine for what is a Fourth Amendment “search” appears to be as follows:

A search occurs either when

(a) A trespassory test is satisfied: (1) a “trespass” occurs, (2) the trespass is onto an enumerated item listed in the Fourth Amendment (“persons, houses, papers, or effects”), and (3) it occurs with the intent “to find something or to obtain information”

or

(b) The Katz test is satisfied: the government conduct violates a subjective expectation of privacy and an objective reasonable expectation of privacy

Today’s majority opinion in Jones announces the trespassory test and applies to to find that the installation of the device with intent to use it was a search. As a result, the Court doesn’t purport to reach the “reasonable expectation of privacy” question. The Court also did not reach when installing a GPS device is a reasonable search, holding that the issue was forfeited because it was not raised below.

UPDATE: At first blush, one question I’m not entirely certain of is what the test is for a trespass. Trespass law has changed over time, and it varies state to state. Civil trespass can be different from criminal trespass. Is the question whether the act would have constituted a trespass at common law, or whether it is a trespass today? Justice Alito’s opinion indicates that he thinks the test is a trespass at common law, but does the majority take a view on that?

In Marbury v. Madison, John Marshall wrote:

The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

Once the Court moves beyond the original meaning of the text to allow Congress to reach activity that is neither “interstate” nor “commerce” (using the Necessary & Proper Clause as its warrant), there still remains the need to establish some limit on these “implied” nontextual powers, lest the national government becomes a government of general powers.  The “express prohibitions” provided by the Bill of Rights don’t count since they equally constrain state governments.  Were these the only constraints on federal power, then the scope of the power of Congress would be exactly the same as the power of states.  And this proposition has always been rejected by the Supreme Court.  As Chief Justice Rehnquist affirmed in Lopez:

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, §8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft (1991). “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”…

So the challenge is to limit, somehow, the scope of the power that lies beyond Congress’s plenary power to “commercce . . . among the several states.”

One possible constraint is political.  But , as John Marshall stated above in Marbury, a “political” constraint which allows the legislative branch to define the limits of its own power is not sufficient.  What is needed is a judicial constraint.  Much more can be said about why political constraints are insufficient, but time and space are limited.  Suffice it to say that, whether or not Marshall (and Rehnquist) are wrong about the need for a judicially-enforced constraint, even the New Deal Court in Wickard declined to adopt “political constaints” as the only constraint on the enumerated powers of Congress.  See Barry Cushman, Rethinking the New Deal Court.

But there are only two types of judicially-enforceable limits.  The first is fact-based.  Examine the “rationality” of a particular measure to see if it is really serving the enumerated power.  This was the method commonly employed by the Supreme Court before the New Deal in both Due Process and Commerce Clause cases, but which the Supreme Court has generally rejected in favor of hypothetical rational basis scrutiny.  The government contends that the power to impose economic mandates on the people is limited by the fact that “health care is different” from other sorts of economic mandates, e.g. a mandate to buy GM cars.  We disagree.  Were this to be a genuine limit, we would be entitled to a hearing to decide this factual question. On remand, the courts would also have to adopt some standard of review to decide whether we or the government were correct in our respective assessments of the facts.  This standard cannot be modern hypothetical rational basis scrutiny, because that would be no scrutiny at all and would fail to provide a judicially-enforceable constraint.  The Justices know this.  While heightened factual scrutiny of the choice of congressional means would not bother me, it runs contrary to the Court’s approach since the New Deal and would surely bother the Justices.

This leaves the approach employed by the Court in Lopez:  identify a judicially-administrable categorical limitation on the implied powers of Congress.   This is my reading of what Justice Rehnquist was attempting to achieve in Lopez: identify a categorical limitation on the implied power of Congress to go beyond the regulation of interstate commerce itself and reach intrastate activity that was not itself “commerce” which would be consistent with prior post-New Deal decisions (“this far”).  So he adopted the nontextual and nonoriginalist distinction between the regulation of intrastate activity that is “economic” (“this far”) but not “noneconomic” (“no farther”) regardless of whether the noneconomic activity could rationally be said, in the aggregate, to substantially affect interstate commerce.

In Raich we asserted that, because Angel Raich’s and Dianne Monson’s activities were noneconomic — no money was being exchanged for marijuana — their conduct fell outside the line the Court had drawn in Lopez and Morrison.  The government contended that Angel’s and Dianne’s activity was “economic” because it substituted for the economic activity of buying marijuana on the market.  Had the Court accepted the position of the government, Raich would have replaced Wickard as the outermost reach of Congressional power and led to an unlimited Commerce Clause/Necessary & Proper Clause power.  As I said during oral argument, every activity, even marital sexual relations, could be construed as “substitute” for something available on the market.

Perhaps sensing this, happily, the Court implicitly rejected the government’s expansive theory, and therefore greatly limited the scope of its holding in Raich, when it held that the production and consumption of a “commodity” was quintessential economic activity, relying on the definition found in a 1966 Webster’s dictionary.  Indeed, by limiting its holding to the particular dictionary definition of “economic” from Webster’s, Raich actually narrowed the scope of Lopez, assuming this was to be the exclusive definition of “economic” that would be employed by the Court in the future.  For example, buying insurance, while broadly “economic” is not the purchase or consumption of a “commodity.”   In this sense, the holding of Raich was limited to a power that had clearly been exercised in the past (“this far”): the power to prohibit the intrastate production and consumption of a commodity.

Justice Scalia’s concurrence in Raich extending the power to reach noneconomic activity when doing so was essential to a broader regulation of interstate commerce, seems more ambitious, which is why the government has relied so heavily upon it throughout this litigation.   Yet I think Justice Scalia was responding to another feature of Raich that was downplayed during the litigation and never explicitly examined.  We were bringing an “as applied” Commerce Clause challenge in which we did not contest the power of Congress to regulate the interstate drug trade.  Neither did we contest the power of Congress to reach the intrastate drug trade in states that had not legalized such trade.  We were attempting to carve out a sub-class of activities from that which Congress was trying to regulate: wholly intrastate cultivation and use of marijuana for medical use as authorized by state law.  Much of oral argument was devoted to defending the cogency of this sub-class.

Although such as applied challenges had been brought before, none had ever succeeded.  I believe that Justice Scalia’s Necessary & Proper Clause focused opinion was his attempt to handle this aspect of the case by explaining why, if Congress could regulate genuinely interstate commerce in intoxicating substances (as we conceded), as part of its broader regulatory scheme, it could also reach this subset of activities that could not feasibly be distinguished from the commerce over which it had control.  For Justice Scalia, the fact that these activities may be noneconomic (not for money) did not make it any less necessary to reach them, or at least so Congress could decide in its discretion.

It remains to be seen whether Justice Scalia will be willing to extend this rationale to a facial challenge to a power to mandate the purchase of insurance by individuals because it is “essential” to the power of Congress to regulate the terms by which insurance companies do business.  This is the government’s contention, but it is a considerable step beyond the problem Justice Scalia was wrestling with in Raich. Recall that, in the facial challenge in Comstock, Justice Scalia joined Justice Thomas’s dissenting opinion in which Justice Thomas reasserted Justice Scalia’s holding in Printz that the means chosen by Congress (commandeering the states) was “improper.”  So Justice Scalia still holds the view that some means of executing the commerce power, while necessary under a rational basis approach, are nevertheless improper.  The question for him is whether his analysis of “necessity” in Raich is similarly qualified by the “impropriety” of the chosen means.

To date, the government has been unable to articulate a “categorical” limitation on the power to mandate that individuals enter into contracts with private parties, yet it has not been bold enough to assert that the only constraint is “political.”  And I do not believe that their “factual” limitation (“health care is different”) will fly.  If the Court does accept this approach, then assuming it also adopts a modern hypothetical rational basis approach, it would effectively be adopting the “political constraints only” position.  Maybe, as in Raich, the Court will simply say that because the “decision” not to buy health insurance is “economic,” as the government urges, it can be reached under Lopez.  But the power to reach economic “decisions” is as capacious as the government’s “substitution” theory in Lopez Raich.  It is a mere fig-leaf to cover the “political constraints only” position that will fool no one if it adopted.  This would not even amount to the “symbolic” federalism reading of Lopez; it would be no federalism at all.  Which, again, is why this case is such a big deal.

Congratulations to Orin on having an article of his, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004), be cited once by the majority and twice by the four-Justice concurrence in the judgment in today’s United States v. Jones Supreme Court decision.

I’m about to head off to teach an 11am class about the reasonable expectation of privacy test, using the case of United States v. Jones as a hypothetical, which means I have some quick reading to do.

In 1996, then-Speaker of the House Newt Gingrich introduced the Drug Importer Death Penalty Act which, as the name implies, would have imposed the death penalty on those who imported a sufficient amount of marijuana or other illegal drugs into the United States on more than one occasion.  (Hat tip: Ezra Klein)

Much of the difference of opinion over the constitutionality of the individual insurance mandate turns on a difference of opinion about the appropriate baseline for evaluating Congressional power. For 60 years, law professors taught that Congress had unlimited discretion with respect to using its commerce power to regulate the national economy. They held this view notwithstanding that the Supreme Court had never ennunciated such a position and that we now know that some Justices on the New Deal Court considered doing so in Wickard but declined to pull that trigger. Virtually all “progressive” academics — and many, if not most, “conservatives” whose constitutional views were formed before 1995 — accepted and continue to accept this proposition as the baseline against which Congressional legislation was to be assessed.

Regardless of whether this was ever the baseline accepted by the Supreme Court, in 1995, the Supreme Court arguably (more on this in a moment) rejected it in favor of another: Congress has discretion with respect to all the powers that have been upheld up to that point, but any claim of implied Congressional power beyond that point was constitutionally suspect. Because Congress had never before attempted to regulate wholly intrastate noneconomic activity, a majority of the Court in Lopez and again in Morrison (over the empassioned dissent of those Justices who hewed to the other baseline) said it would not recognize this new extension of power.  Raich can be understood as an effort to restrain Congress from exercising a power it had long used: the power to regulate the intrastate cultivation, possession and distribution of an intoxicating substance.  It can also be understood as an effort to sustain an “as applied” challenge to a facially constitutional exercise of the commerce power, and no such challenge had ever before succeeded.

Since Lopez and Morrison have now become fixed poles of constitutional decision, there are two competing readings of these cases depending on which baseline one holds.  Those who continue to hold the baseline of unlimited Congressional discretion – whose politics can be progressive or conservative – construe Lopez and Morrison as identifying a relatively narrow exception to this power. Since the individual insurance mandate does not clearly fall within this exception, it is therefore deemed by them to be clearly constitutional. This is why, I believe, so many constitutional law professors thought this case was so easy.

In contrast, those who interpret Chief Justice Rehnquist’s opinions in Lopez and Morrison as rejecting that baseline in favor of the position that Congress may go as far as it has gone in the past, but no farther view the mandate quite differently.  Because the power to require all citizens to enter into contracts with private companies is a new or “unprecedented” claim of power, it is at minimum constitutionally suspect and at maximum unconstitutional.  Given the baseline, the burden is on the government to justify this expansion of federal power as both necessary and proper.  As important, there must be some identifiable and judicially administable limit on its exercise.

Ultimately, it will be up to the individual Justices to decide which baseline they wish to employ.  Do Lopez and Morrison represent merely symbolic “sport” cases as so many academics now believe?   Or did these cases (along with cases such as New York, Printz and Alden) establish a post-New Deal baseline (“this far and no farther”) beyond which Congress may not go without meeting a serious burden of justification?  Because this case will tell us which baseline the Roberts Court wishes to affirm for the future, it is both a very big deal and not all that easy to predict simply on the basis of prior cases and doctrines.  If the Roberts Court adopts the first baseline, however, it will not only be repudiating what I believe to be the best reading of the Rehnquist Court’s landmark decisions establishing the so-called New Federalism, it will finally be doing what even the New Deal Court could not bring itself to do.  Regardless of how they eventually rule, one can well understand why the Court would feel the need for 3 days of oral argument to consider this decision.

Interesting column by James Grant on the short but severe post-WWI Depression of 1920–21:

Our Great Recession ended 2½ years ago, according to the official cyclical timekeepers, but you wouldn’t know it by a glance at the news. Zero percent interest rates and $1 trillion in “stimulus” notwithstanding, the U.S. economy can hardly seem to heave itself out of bed in the morning. Now compare this with the first full year of recovery from the ugly depression of 1920–21. In 1922, under the unsung stewardship of the president best remembered for his underlings’ scandals and his own early death in office, the unemployment rate fell from 15.6 percent to 9 percent (on its way to 3.2 percent in 1923), while constant-dollar output leapt by 16 percent. After which the 1920s proverbially roared.

And how did the administration of Warren G. Harding, in conjunction with the Federal Reserve, produce these astonishing results? Why, by raising interest rates, reducing the public debt and balancing the federal budget. Let 21st-century economists rub their eyes in disbelief. Eighteen months after the depression started, it ended.

I’ve been fascinated by the contrast of Harding’s response to the 1920 depression versus Roosevelt’s seemingly-counterproductive response to the Great Depression since I read several discussions a few years back (see here, here, and here).  The problem with macroeconomics, of course, is the paucity of data points and the inability to control for relevant variables.  But it is nevertheless striking to me that discussion always seems to focus on what at first glance appears to be the failed Hoover-Roosevelt response to the Great Depression rather than the apparently effective Harding response to the 1920 Depression.

The only discussions I’ve seen of the 1920 Depression are those that support Harding.  Has anyone written a good response to that story, because what I’ve read seems fairly compelling (at least to the extent that macroeconomics can ever tell a compelling story).

The most recent batch of attacks began Friday, but continued today.

The radical Islamist terror group Boko Haram, believed to have carried out over 500 terror attacks last year, has already claimed responsibility for the violence in Kano. The group, whose name can be translated as “Western education is a sin,” said that the onslaught was a protest against the government’s refusal to release its members from prison.

Trevor Burris responds to my exchange with Orin on applying the state noncommandeering doctrine to mandates that “the people” enter into contractual relations with private companies in Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr.  Here is an excerpt:

I believe Professor Barnett has the right of it, but I do acknowledge Professor Kerr’s concerns. I would like to add something to Professor Barnett’s argument: The individual mandate was passed to avoid the political liability that a taxation-driven scheme would have brought (if you doubt this, read Michael Cannon’s post here). This is constitutionally significant to the anti-commandeering argument.

[snip]

If the federal government is properly understood as resting on dual representative pillars—the people and the states—then either can be commandeered. Although our case law only discusses the impropriety of commandeering state governments, it is fully within a proper understanding of the Constitution that people are equally susceptible to unconstitutional commandeering. It is of no matter that they are commandeered at other times—e.g., jury duty, the draft, etc.—because states are likewise commandeered by the Constitution—e.g., rules on choosing senators, members of Congress, and electors, as well as the prohibitions in Article 1, Section 10. But since, at some fundamental level, commandeering is so repugnant to a limited government empowered by a free people, there has to be some way to determine unconstitutional commandeering.

In order to determine this, I propose that, because we are talking about the people and not the states, we must look to the ways in which commandeering is constitutionally allowed and see if those protections have been avoided in passing the individual mandate. Taxation is a dangerous power, but the Constitution requires that it be above the board so citizens are aware when forced wealth transfers are occurring. For similar reasons, Article 1, Section 9 requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” As Michael Cannon’s post linked above shows, this type of accounting was intentionally avoided by Congress in passing PPACA.

So, I offer to Professor Kerr this principle of decision in the case: THIS IS NOT OKAY. Specifically, when looking to whether or not the people have been commandeered, we look to whether the protections in the Constitution that prevent commandeering have been avoided. One instance in which this would nearly always be the case: the forced purchase of a product from a private entity.

You can read the whole thing here.

A few clarifications of my position.

• In my view, “commandeering” has a much narrower and more specific meaning in the existing doctrine than “commanding.”  It means taking over a power properly exercised by another sovereign.  In New York, the power is that of a State legislature to enact legislation (and the correlative power to decline to exercise this power).  With the mandate it the power of “the people” to consent to enter into contractual relations with a private party (and the correlative power to decline to exercise this power).   Just as state legislatures have their own reserved power to enact statutes, so too do individuals have the reserved power to alter their legal relations with others via contract.  Indeed, as Lon Fuller observed, these powers are very similar.  “Commandeering” is the coercing of states (or by extension individuals) to exercise their distinct powers in ways desired by Congress.
• For this reason, making you live with a soldier in your home, convicting yourself by your own words, or performing personal services for another, best exemplify the noncommandeering concept.  The power to “take” property for public use, an example I also used in my earlier post, is closer to the power to tax.
• Now, Congress has expressly delegated powers to coerce individuals that it lacks against the States, most importantly the power to tax.  But the (dangerous) power to confiscate property in the form of taxes or by eminent domain is not the same as the power to make someone alter their legal relations with another person, which is what contracts do.
• Congress also has many powers at its disposal to create incentives for states and individuals to exercise their reserved powers in ways that Congress desires, and providing such incentives is not “commandeering” (unless, as per Dole, they cross the line into “coercion”).
• Likewise, as the term appears to be used by the Court, States (and by extension private persons) are not “commandeered” when they are forcibly prevented from exercising their powers, or when they are regulated in the manner of their exercise.   Prohibitions on race and sex discrimination by individuals regulate the manner by which certain activities like operating a restaurant or hotel are to be conducted; these measures do not command that persons enter into the restaurant or hotel business.  The very same line has implicitly been drawn by the Court in applying the noncommandeering doctrine to States, while upholding the power of Congress to regulate the manner by which States engage in economic activity.
• This is all a question of delegated power, not the side constraints of rights.  Congress is claiming an implied power to force people to enter into contracts with private companies.  Is its claim of implied power warranted or not?   The fact that, as Justice Kennedy explained in Bond, the enumeration of delegated Congressional power is a means of protecting liberty does not render it the same type of endeavor as the doctrinal protection of certain “fundamental” rights under the Due Process Clause.   Indeed, the Federalists originally contended that the protection of express rights would be unnecessary at the federal level because of the limited and enumerated delegation of powers in the Constitution.

I think the “commandeering” concept best explains why so many people instinctively find the individual insurance mandate peculiarly offensive, just as it explains why some justices found the State mandates in New York and Printz to be objectionable.  Conversely, those who take a fundamentally different view of the relationship of the individual to the government — or of the States to the federal government — simply do not understand what the fuss is all about.  In this regard, if no other, the debate over the mandate is revealing.

You can read a fuller treatment of the approach in my 2010 law review article, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional.  But since I published that piece, I have had considerable time to give the matter fuller thought, so I might not explain the position precisely the same way today.

Andres Marroquin, a Guatemalan economics blogger I follow with interest, has a new draft paper (co-authored with Julio Cole), “Economical Writing (Or, Think Hemingway).”  It is summarized at Marroquin’s blog post, The Economics of Writing.

Literature [Nobel] laureates tend to use shorter words than laureates in other disciplines, and the difference is statistically significant. These results confirm Salant’s idea that words are a scarce resource and should be used efficiently. This includes using short words instead of longer ones whenever possible. In short, good writing is also “economical writing.” [Table omitted.]

Note that the lowest average word lengths are for the Literature prize. In terms of syllables/word the Literature laureates’ word lengths were, on average, almost 8% shorter than the weighted average for non-Literature laureates, and about 6.6% shorter in terms of characters/word.

Salant (1969) argued that the use of short words is an indication of good writing. We found support for this hypothesis by comparing the banquet speeches of Nobel laureates. To be sure, word length is only one dimension of what makes for “good writing.” But it seems that it is a necessary dimension. Words are a scarce resource and must be used efficiently. This includes using short words rather than longer ones, whenever possible. “Economical” writing might indeed be the key for “good” writing. We leave for debate the different implications of our paper.

I invite readers to consider in the comments whether the method pursued here is suited to the task at hand, or whether it is instead an example of a method gone in search of something to measure, or something again entirely.  Note that this is different from asking whether good writing indeed consistently uses shorter words (the Hemingway or Orwell “plain prose” aesthetic), or whether good writing is much more variable on this metric than one might have guessed (Blaise Cendrars, for example, or Garcia Marquez or Milan Kundera).  Finally, is it true that “words are a scarce resource?”  Don’t the authors mean, rather, that more words are always available and that reader attention is the scarce resource?  (BTW, in posting this, I should ask whether I have been taken in by a parody — someone bidding for an Ignoble Prize?)

Ryan Calo, director for robotics at Stanford Law School’s Center for Internet and Society, has a new, op-ed length essay on the ways in which robots fall in-between regulatory stools as they move from specialized factory or military functions into everyday life.  Who Will Regulate Robots?

Students of this transformative technology should keep their eye on both the claims and disavowals of authority over robots by state and federal agencies. Each hold potential dangers for our civil liberties and for the future of robotics ... the mainstreaming of robotics will pose challenges for regulators. Even if it is clear that a given agency should have something to say about a robot, it is not clear exactly what the scope of their authority will be.

The Federal Aviation Administration worries about (and, for now, restricts) the domestic use of drones on the basis of safety. But the agency does not appear to have anything to say about the potential of this technology to infringe upon citizen and consumer privacy. Similarly, the National Highway Safety Traffic Safety Administration thinks about the impact of autonomous vehicles on safety but does not appear to have given any thought to the effects of driveless cars on citizen autonomy—for instance, were law enforcement to claim a right to force an autonomous car to slow down or pull over.

When I first mentioned my interest in robotics and the law beyond the battlefield where I have been studying it for several years, a sophisticated law professor friend asked how there were legal issues beyond tort and products liability.  The rest of the potential issues — intellectual property, etc. — were not particularly special to robots.  Ryan Calo’s scholarship has been central to showing the many ways in which this potentially transformative, but also disruptive, technology raises in its knock-on effects many legal questions.  And as he says, the avowals and disavowals of regulatory authority by existing regulatory agencies over different types and aspects of robotics raise the specter of regulating things we wish were not regulated, but also failing to regulate things we might wish were.  Comments open for this post.

Glenn Greenwald has a very Glenn Greenwaldesque post on the controversy over alleged use of anti-Semitic language by bloggers at the Center for American Progress, which I discussed last week.

One would never know from reading Greenwald’s piece that the controversy primarily revolved around the use of the term “Israel-firster” to describe supporters of Israel, much less that one can say two things about that term without much fear of contradiction: (1) it originated on the neo-Nazi fringe, and has only been adopted by left-wingers in the last few years; (2) it’s a term that not only substitutes insults for argument, but it implies loyalty to a foreign power, a longstanding theme in anti-Semitic literature.

As I said before, that doesn’t make the phrase somehow “objectively” anti-Semitic if used by individuals who had no anti-Jewish intent. However, as I also noted, most people of good will try to avoid using phrases related to Jews once they recognize that they have the odor of neo-Naziism about them (and indeed the CAP bloggers deleted the posts in question after the controversy broke). Others, however, like Greenwald, continue to think the phrase perfectly appropriate.

Moreover, left-wing writers tend to be especially sensitive about using language that has potentially racist implications, and also tend to be quick to accuse others of using “dog whistle” phrases–phrases that sound neutral, but are meant to stir racial animosity or invoke racial stereotypes.

In Greenwald’s defense, unlike many other left-wing anti-Israel writers who are quick to reject colorable charges of anti-Semitism, he has been a fearless opponent of political correctness, and has defended Republicans and conservatives from questionable charges of racism.

Actually, that’s not true. Actually, the opposite is true. Here, for example, is Glenn Greenwald in 2008, accusing John McCain of delivering “one of the ugliest, nastiest, most invective-filled” attacks “a major candidate has ever delivered, blatantly designed to stoke raw racial resentments.” The offending language? (Italics are Greenwald’s): It’s as if somehow the usual rules don’t apply, and where other candidates have to explain themselves and their records, Senator Obama seems to think he is above all that . . . His campaign had to return $33,000 in illegal foreign funds from Palestinian donors, and this weekend, we found out about another $28,000 in illegal donations. Why has Senator Obama refused to disclose the people who are funding his campaign? Again, the American people deserve answers.

Let’s get this straight. Suggesting that the usual rules don’t apply to Obama, stating that he returned illegal campaign contributions from Palestinian donors, and claiming that Obama refuses to disclose his funders isn’t just overheated (or silly) campaign rhetoric, isn’t even just ugly and nasty, but “is blatantly designed to stoke raw racial resentments.”

So, mentioning illegal Palestinian donations = blatant racism; adopting language appropriated from neo-Nazis within the decade about Israel’s supporters = clearly not anti-Semitic. Suggesting that a Obama has avoided “the usual rules” = blatant racism; suggesting that pro-Israel Americans care more about Israel than about the U.S. = clearly not anti-Semitic. Accusing someone of using anti-Semitism for using the Israel-firster slur makes you part of a “smear campaign”; accusing John McCain of blatant racism for claiming that Obama has not disclosed his campaign donors makes you a courageous left-wing blogger speaking truth to power.

I’m not going to argue that Greenwald’s racism argument is completely absurd–he’s a good lawyer, and he makes at least a marginally colorable argument in the rest of his post. But his argument is MUCH more of a stretch, or, if you will, much less well-founded, than the argument that “Israel-firster” is anti-Semitic language.

Obviously, Greenwald’s sensitivity to offensive language depends on whether he likes/agrees with the target. When his favored candidate, Barack Obama, was being attacked by John McCain, he was extremely quick to accuse McCain of using language designed to appeal to racist sentiment. When pro-Israel activists and politicians, a Greenwald-disfavored group, are being attacked by his anti-Israel compatriots, suddenly they are inherently immune from any hint of using anti-Semitic (a form, of course, of racism) language unless, perhaps, they are wearing swastikas and celebrating Hitler’s birthday. And the fact that Greenwald can and has come up with examples of where some of Israel’s supporters have used charges of anti-Semitism in inappropriate or exaggerated contexts is quite irrelevant to the point, just as it would be irrelevant to Greenwald’s post about McCain if someone pointed out that charges of racism against Obama’s opponents are at times inappropriate or exaggerated.

UPDATE: Here, in its entirety, is Greenwald’s response:

On a different note: both Jeffrey Goldberg and David Bernstein have posts about my arguments on the smearing of CAP that rest on the same premise: namely, that to point out that someone has “dual loyalties” is an accusation of disloyalty to their own country or even worse. As I explain here, that premise is false. There’s nothing inherently wrong with dual loyalties: those are common among many groups, especially in a country of immigrants, and are typically benign. What’s menacing is to smear those who discuss its existence and the way in which it influences our politics.

This would obviously be a more persuasive argument if the “Israel-firster” meme had not migrated to the left directly and very recently from the blatantly anti-Semitic right, a point Greenwald does not address. Indeed, the offensive aspect “Israel-firster” is not whether it’s inherently libelous to accuse someone of “dual loyalties,” any more than it’s inherently libelous to accuse someone of taking donations from foreign Palestinian sources. Rather, as Greenwald suggested with regard to McCain, the question is whether the use of the language is “designed to stoke raw racial [anti-Semitic] resentments.” Clearly this is the case when the language is used by the likes of David Duke, and the question then is whether the language magically is purged of such connotations when used by M.J. Rosenberg and others on the “mainstream” left.

[Additionally, a commenter points out that “Israel-firster” is not an accusation of “dual loyalties,” but of primary loyalty to a foreign country.]

The sometimes critical reaction to the criminal division chief of the Arizona U.S. Attorney’s Office decision to take the Fifth Amendment in the Congressional investigation of Operation Fast and Furious led some people to wonder whether there was a similarly critical reaction with regard to Oliver North’s and John Poindexter’s decision to take the Fifth during the Iran/Contra hearings. I did a quick search, and came across these quotations, which I should stress are only a small subset of what was doubtless said:

[Michael Kinsley, Wash. Post, Dec. 18, 1986:] Five men have now taken the Fifth Amendment rather than tell a congressional committee about their role in the Iran arms deal. Moist-eyed Lt. Col. Oliver North says there’s nothing he’d like better than to reveal all, then declines, with a tragic sigh, to say anything. Strong congressmen swoon. Oliver North has a perfect right to take the Fifth. What he has no right to do is to strike a pose of heroic innocence, prattle on about upholding the Constitution and expect anyone to believe him.

[Steve Gerstel, UPI, Dec. 16, 1986:] Although Byrd and Dole both said that Vice Adm. John Poindexter and Lt. Col. Oliver North, two key figures in the scandal, had the right to invoke the 5th Amendment against self-incrimination in their appearances before congressional committees, they made it clear they felt uniformed military men had a higher obligation.

[Dorothy Collin, Chicago Tribune, Dec. 13, 1986:] The chairman of the Senate Intelligence Committee on Friday angrily accused three military officers who also have served as President Reagan’s national security aides of “deserting their country” by refusing to testify about the secret sale of arms to Iran and the diversion of money to the Nicaraguan contra rebels. “These guys are being praised as national heroes,” Sen. David Durenberger (R., Minn.) told reporters. “If they are such heroes, why are they deserting their country when they are finally being put to the true test?”

[Dimitri Simes, San Diego Union Tribune, Dec. 12, 1986:] I have to confess, despite the obvious pain in Lt. Col. Oliver North’s voice when he was taking the Fifth Amendment before the House Committee on Foreign Affairs, that my sympathy for his predicament was limited. Refusing to testify on the grounds of possible self-incrimination is an important constitutional right. Yet nobody is obliged to use it. Certainly not a man who began his statement by emphasizing his devotion to the public service. And certainly not an active-duty officer who had the bad taste to take the Fifth while wearing his uniform with an impressive collection of decorations on his chest. In the moment of trial, both North and his former boss, Vice Adm. John Poindexter, appeared to put their personal well-being above the interests of President Reagan and indeed the interests of the Republic.

I express no opinion on whether such views are right or wrong, either with regard to North and Poindexter or with regard to Patrick J. Cunningham, the federal prosecutor who is taking the Fifth in the Fast and Furious investigation.

A North Carolina statute, § 163–274(a)(6), makes it a misdemeanor “to discharge or threaten to discharge from employment ... any legally qualified voter on account of any vote such voter may cast or consider or intend to cast.” North Carolina employment law also generally makes it civilly actionable to fire an employee “in contravention of express policy declarations contained in the North Carolina General Statutes,” which I suspect means that actions that violate this criminal statute would probably also be tortious.

Say that a private employer in North Carolina fires an employee for expressing support for a candidate or a proposed constitutional amendment that the employer views as highly reprehensible. Say, for instance, the employee says “Newt Gingrich is the best presidential candidate out there,” though without an express statement that “I’m going to vote for him,” or “I’m glad that a constitutional proposal to expressly forbid same-sex marriage is finally on the ballot.” And say that the employer then fires the employee based on that statement.

Should that be viewed as discharging the employee “on account of any vote such voter may ... consider or intend to cast,” and therefore actionable? Or would it likely be viewed as discharge based on the employee’s pro-candidate speech rather than the employee’s perceived intended future vote, and therefore not actionable? (North Carolina is not one of the 16 states that generally bars private employer discrimination based on an employee’s speech or partisan political activity.) I ask this because I’m finishing up an article that would list the state and local laws that ban private employer discrimination based on speech or certain kinds of political activity, and I’m trying to decide whether to categorize this statute as a possible protection for speech supporting or opposing a candidate or constitutional amendment.

I’m not sure what to make of this, but the ending is good.

Thanks to How Appealing for the link.