"Trump is going to get his ballroom — even if courts conclude it’s illegal."

Said lawprof Leah Litman, quoted by Adam Liptak in "Trump’s 'Lightning Speed' Outpaces the Courts/In his breakneck construction of a grand ballroom and in many other initiatives, critics say, the president has tried to outrun judicial review" (NYT gift link).

When the ballroom case was argued before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in June, Judge Patricia A. Millett asked... If the government were to move very quickly to bulldoze the Statue of Liberty... was it true that “nothing can be done” by the courts? 

Yaakov Roth, a Justice Department lawyer, did not try to duck the question. “I think that’s right, yes,” he said.... 

When the case reached the Supreme Court last month, the challengers warned the justices that Mr. Trump had “decided to try to outrun judicial review.” In response, Solicitor General D. John Sauer did not exactly deny the charge. He crowed that a 250-person crew had been working 20 hours a day, seven days a week, and that the project, which he said included key security upgrades for the White House, had passed the point of no return....

It's in the structure of things that the Executive has speed as a tool. Remember when Justice Robert Jackson quoted Napoleon — "The tools belong to the man who can use them"?

The New York Times has its Trumpiest headline ever.

Here's the article: "Trump Asserts a Muscular Vision of Presidential Power on First Day Back/In a flurry of unilateral executive actions, Mr. Trump revived disputed claims of broad presidential authority from his first term — and made some new ones. Court battles seem likely."

That's by Charlie Savage. Excerpt:

"As [Christopher] Rufo sees it, critical race theory is a revolutionary program that replaces the Marxist categories of the bourgeois and the proletariat with racial groups..."

"... justifying discrimination against those deemed racial oppressors. His goal, ultimately, is to get the Supreme Court to rule that school and workplace trainings based on the doctrines of critical race theory violate the 1964 Civil Rights Act.... Rufo insists there are no free speech implications to what he’s trying to do. 'You have the freedom of speech as an individual, of course, but you don’t have the kind of entitlement to perpetuate that speech through public agencies,' he said. This sounds, ironically, a lot like the arguments people on the left make about de-platforming right-wingers. To [Kimberlé] Crenshaw, attempts to ban critical race theory vindicate some of the movement’s skepticism about free speech orthodoxy, showing that there were never transcendent principles at play. When people defend offensive speech, she said, they’re often really defending 'the substance of what the speech is — because if it was really about free speech, then this censorship, people would be howling to the high heavens.' If it was really about free speech, they should be."

From "The Campaign to Cancel Wokeness/How the right is trying to censor critical race theory" by Michelle Goldberg (NYT). 

Here's a good comment over there: "The problem with your argument is that Critical Race Theory is presented at schools and workplace sessions as the TRUTH, not just an (unprovable) social science theory. And it would be very uncomfortable (if not career or social suicide) to question this theory in front of one’s bosses and peers."

That makes me think of Justice Jackson's famous line, one of the most important points about freedom of speech: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." 

The problem is compelled speech. To be compelled to assert belief in what you do not believe is a severe intrusion on individual free speech, and that seems to be what is happening in these workplace training sessions. Is there some way to present the insights of Critical Race Theory as ideas to be understood and weighed against other ideas and debated instead of compelling attendance at events where the ideas are dictated and participants are forced to attest to the dictated beliefs?

The state of Trump's view — as of yesterday — that his "authority is total."

As I've said, I think Trump's rhetoric is a device to shift responsibility over to the governors and to facilitate a patchwork, decentralized reopening of the economy. The claim that the President's "authority is total" was made at the April 13th press briefing, so now I want to look at  the April 14th Task Force Press briefing and see what — if anything — may have changed after a day of knocking him around for what was widely perceived as an outrageous power grab:

Donald Trump: The plans to reopen the country are close to being finalized and we will soon be sharing details and new guidelines with everybody. I will be speaking to all 50 governors very shortly and I will then be authorizing each individual governor of each individual state to implement a reopening and a very powerful reopening plan of their state at a time and in a manner as most appropriate.

By saying he will be "authorizing" the governors to take over the decision-making and implementation of the reopening, he's not stepping back from the claim of power. In that formulation, he has the power, but he's going to delegate it to the Governors.

"Duka and Koski's beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But..."

"... the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow. Indeed, '[w]e can have intellectual individualism' and 'rich cultural diversities … only at the price' of allowing others to express beliefs that we may find offensive or irrational. West Virginia State Board of Education v. Barnette (1943). This 'freedom to differ is not limited to things that do not matter much … [t]he test of its substance is the right to differ as to things that touch the heart of the existing order.' Id."

From Brush & Nib Studios, LC v. City of Phoenix, quoted at "Freedom of Speech Protects Calligraphers' Right Not to Create Custom Same-Sex Wedding Invitations/So holds the Arizona Supreme Court" (Volokh Conspiracy).

Barnette was about compelling school children to recite the Pledge of Allegiance. The children had a religious objection but the case was not decided on the basis of a special religious exclusion. Justice Jackson famously wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

Judge Posner "corrects" his statement that only Justices Ginsburg and Breyer are "qualified" to serve on the Supreme Court.

I blogged the statement yesterday, here. Maybe Judge Posner read some of your scornful comments, because now there's this:

The second correction I’d like to see made has to do with my saying that none of the sitting Justices (plus Scalia) is “qualified” for the Supreme Court except Ginsburg and Breyer. This could be misunderstood to mean that I think the others lack the necessary paper credentials, of which the most important are graduating from a law school and passing the bar exam (though one of our greatest Justices, Robert Jackson, had just a year of law school, and did not graduate). That was not my intention in using the word “qualified” (if I did use it). I meant good enough to be a Supreme Court Justice. There are something like 1.2 million American lawyers, some of whom are extremely smart, fair minded, experienced, etc. I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.

I wouldn't call that a "correction." It's pretty much what I understood him to mean the first time around.

And as long as I'm going back to that, let me explain what I meant yesterday when I related that Posner post to the post quoting Howard Stern saying that Donald Trump was able to do a good Howard Stern Show interview because he got in "the spirit of the show" which is "to talk like real people." I said:

Talking like a real person... then running for office. That's dangerous... unless you're a saintly real person. Most politicians get on-task, self-censoring, and robotic. That's the normal way to stay out of this kind of trouble.  

To get appointed to the Supreme Court you have to control your speech and not give the President's antagonists material they can use against you. You cannot be Robert Bork. That is, you cannot be an outspoken, interesting person like Judge Posner. That's what disqualifies you politically. So there's reason to say that everyone who is really qualified is politically disqualified.

And I do regret using the word "saintly." I think more highly of saints than that, and I bow to Paddy O's comment:

A saint would have even less chance than Trump. A real saint offends all the powerful, so wouldn't even get a chance to stand on a primary stage.

"To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine..."

"... is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

Wrote Justice Jackson in West Virginia State Board of Education v. Barnette, the Supreme Court case that that recognized a free-speech right of public schoolchildren to resist compulsion to recite the Pledge of Allegiance. That's quoted by Jeffrey Toobin in a New Yorker article about Colin Kaepernick's refusal to show the customary respect of standing during the National Anthem as it is played before professional football games.

Toobin acknowledges that Barnette is about a legal rights that can only be asserted against the government. He doesn't mention that compulsion to recite a pledge is very different from compulsion to show respect while somebody else is saying/singing words that are not even a pledge. And he doesn't mention that Kaepernick chose to join a team, while the children in Barnette were compelled to go to school. And children compelled to go to school are required to follow dictated behavior standards while they are taught material that may be designed to instill patriotism or other political dogma that they might not believe.

And, most importantly, Kaepernick is not being compelled to stand during the national anthem. He sits or takes the knee and we all get to see that. He's got his freedom of expression. He's just being criticized for what he is expressing. There was absolutely nothing in Barnette that saved the schoolchildren from being regarded as bad and unpatriotic for failing to say the pledge.

The criticism too is free speech.

50 years ago today: The Supreme Court announced its decision in Miranda v. Arizona.

That's how it looked on the front page of the NYT. Here's the Wikipedia article on Miranda:

Chief Justice Earl Warren, a former prosecutor, delivered the opinion of the Court, ruling that due to the coercive nature of the custodial interrogation by police (Warren cited several police training manuals which had not been provided in the arguments), no confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless a suspect had been made aware of his rights and the suspect had then waived them:

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

In dissent, Justice John Marshall Harlan II wrote that "nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities". Harlan closed his remarks by quoting former Justice Robert H. Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."

But Miranda was a fine added story, and the temple held up pretty well.

(That other case on the NYT front page is important too: "Dissenters Fear Widening of Congressional Power." That was Katzenbach v. Morgan.)

The President, not the Congress, gets to decide whether a person born in Jerusalem can have his place of birth listed on his passport as Israel.

Here's the PDF of Zivotofsky v. Kerry, which just came out. There's a majority opinion, written by Justice Kennedy, with 5 votes. The Chief Justice writes a dissenting opinion, joined by Justice Alito. Justice Scalia has a dissenting opinion, joined by the Chief and Justice Alito. And Justice Thomas concurs in part and dissents in part.

Justice Kennedy uses the 3 categories from Justice Jackson's opinion in Youngstown. This is a category 3 case, where the President and Congress are in disagreement, but the President's position prevails when the court finds the President's power "exclusive" and "conclusive." That was the case here, Kennedy writes, where the issue is the formal recognition of a foreign sovereign, and Congress was trying to require the President to "issue a formal statement that contradicts the earlier recognition."

"If the hate-crimes law is used to punish intra-religious crimes, it could change from a shield to protect minorities into a weapon against them."

"Religious groups whose beliefs pervade their whole world view see everyone in terms of religion. Any assault they commit might be considered a federal crime," writes Noah Feldman, defending the 6th Circuit's reversal of the conviction in the Amish beard-cutting case.

The defendants in the Amish case asked the appellate court to rule that the law never applies to intra-religious disputes. This might have made sense as a matter of policy, but not as a legal matter in the case at hand. As the law is written, it covers hate crimes by co-religionists. The court instead pragmatically restricted the law’s reach to cases where a religious motive predominates.

How do we know when people are co-religionists? Seemingly co-religionists have been attacking each other for thousands of years. Some of the worst disputes are over the scope of the religion — who's the heretic? — and the outsider's perception that they're in the same religion ignores the nature of the fight. Is it the same religion or different? It would be unwise to interpret the federal hate crime statute to force judges and juries to determine whether criminal defendants and their victims belong to the same religion. It's too close to having trials about religious orthodoxy. That's not what we do in America.

"When President Obama told Russian President Dmitry Medvedev in March 2012 that 'after my election I have more flexibility'..."

"...most assumed he was referring to foreign policy. It turns out Mr. Obama's ambitions weren't so limited."

IN THE COMMENTS: retail lawyer writes:

Question for Ann: How are law schools explaining this new flexibility, promulgation, the Take Care clause, etc.? How do you think they'll be teaching it in the future? Sometimes I wish I still were in law school.

And I said:

I'd quote Justice Jackson in the Steel Seizure Case:

I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.

But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

"The tools belong to the man who can use them."

It's a great line.

But sometimes you've just got tools lying around, and no one can use them too well, and some men and women try to use them to halfway build something and then they leave it leaking and creaking for some other man to whip into shape with those tools, which he's not too good at using, but he keeps tinkering away, ineptly, and everyone watches and bitches about it, and you've just got some huge hulking crappy thing that's never going to work right, but so much damned effort was put into building the thing that we just go ahead and use it anyway.

When does someone who's selling services as a "psychic" deserve to be prosecuted for committing a crime?

In NYC, the government prosecuted a fortune teller — Sylvia Mitchell, 39 — who worked in some storefront in Greenwich Village. The jury convicted her and she could be sentenced to as much as 15 years in prison. The charges were larceny and a scheme to defraud.

During a weeklong trial, prosecutors portrayed Ms. Mitchell as a clever swindler who preyed on distraught people, promising them that she could alleviate their troubles through prayer and meditation to remove what she called “negative energy” and rectify problems that arose from their “past lives.”

In my book, this is entertainment and unconventional psychological therapy. Let the buyer beware. Who's dumb enough to actually believe this? Should the government endeavor to protect everyone who succumbs to the temptation to blow a few bucks on a fortune teller? But this was a case where there were a couple victims who somehow had enough money to make their losses nontrivial. One woman gave Mitchell $27,000 in what was portrayed as an "exercise in letting go of money." Another put $18,000 in a jar as a way to relieve herself of "negative energy."

Both women admitted on the stand under cross-examination that they were deeply skeptical of Ms. Mitchell’s techniques, but paid her anyway, suggesting that they were never tricked into thinking the psychic had the power to better their lives, [Mitchell's lawyer] said.

But an assistant district attorney, James Bergamo, described Ms. Mitchell as an expert at discovering people’s vulnerabilities and scaring them into handing over their cash. It mattered little, he argued in his summation, if Ms. Mitchell’s clients believed what she said about their past lives or negative spirits: the important fact was that they believed she would return their money. “The facts scream scam,” he said.

In Stupid World, no one can hear facts screaming. 

Congress's ill-starred effort to prescribe the orthodoxy of anti-prostitution.

Today, the Supreme Court found that it violated the First Amendment for Congress to grant anti-AIDS funds only to organizations that have "a policy explicitly opposing prostitution and sex trafficking." The case is Agency for International Development v. Alliance for Open Society International, Inc. (PDF).

Chief Justice Roberts, writing for the majority, ends his opinion with what is perhaps the most lofty expression in all of the Supreme Court Reports:

We cannot improve upon what Justice Jackson wrote for the Court 70 years ago: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." [West Virginia State Board of Education v. Barnette, 319 U. S. 624, 642 (1943).

Justice Scalia (who's joined by Thomas) does not appreciate the invocation of Jackson's famously fixed star. He said it was a distraction from "the elephant in the room: that the Government is not forcing anyone to say anything." Congress simply demanded that the recipients of federal funds have "an ideological commitment relevant" to the work that the government is funding. Barnette was about requiring American children to pledge allegiance to the flag. But the U.S. Constitution itself requires legislators to take an oath or affirmation of allegiance to the government, and that shows that the founders believed in "the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work."

You may remember a 1991 case called Rust v. Sullivan, where the Supreme Court upheld HHS regulations that required recipients of federal health-care grants for family planning services to refrain from discussing abortion as an option. Congress was exercising its spending power, and:

That power includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Rust v. Sullivan, 500 U. S. 173, 195, n. 4 (1991) (“Congress’ power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use.”)

In Rust, Roberts says, Congress was defining the program it funded, which was to "encourage only particular family planning methods." Even though Congress limited what they could say as they carried out the funded activity they agreed to do, it did not try to limit their speech outside of the program and it did not require them to espouse a government-prescribed anti-abortion policy.

Justice Scalia said that the government is entitled have its own viewpoints, and it can express that viewpoint by excluding recipients who believe things they don't want promoted.

If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution. So long as the unfunded organization remains free to engage in its activities (including anti-American propaganda) “without federal assistance,” United States v. American Library Assn., Inc., 539 U. S. 194, 212 (2003) (plurality), refusing to make use of its assistance for an enterprise to which it is opposed does not abridge its speech. And the same is true when the rejected organization is not affirmatively opposed to, but merely unsupportive of, the object of the federal program, which appears to be the case here. (Respondents do not promote prostitution, but neither do they wish to oppose it.) A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it....

So how much do you worry about the government exploiting its immense power to channel money into controlling what people are able to say?  Just don't fall for the temptation of taking the money and you can say whatever you want — that's the Scaliaesque answer.

As the government rakes in more and more money and turns around and redistributes it with strings attached, I'd say we should worry a lot. I'm glad to see the free speech right strengthened here.

"In this bill we will nullify anything the president does that smacks of legislation."

"And there are several of the executive orders that appear as if he’s writing new law. That cannot happen.... I’m afraid that President Obama may have this 'king complex' sort of developing, and we’re going to make sure it doesn’t happen."

ADDED: "If not good law, there was worldly wisdom in the maxim attributed to Napoleon that 'The tools belong to the man who can use them.' We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."

Has Justice Scalia “compromised his impartiality" by going duck hunting with Dick Cheney?

Jeffrey Rosen marshalls the evidence of Justices hanging out with Presidents: Harlan Fiske Stone played medicine ball with Herbert Hoover, Robert H. Jackson attended an intimate dinner celebrating FDR’s wedding anniversary, William O. Douglas played poker with FDR, etc.

But that was the old-style “model for male bonding between justices and presidents,” according to Rosen. After Watergate, he writes, "Washington became more adversarial":

Socializing among justices, executive officials and litigants continues, but on increasingly wary terms. Consider the unspoken rules of one of Washington's most exclusive poker games, which has included Chief Justice William H. Rehnquist, Justice Scalia, and lawyers like Robert S. Bennett and Leonard Garment, the former Nixon counselor. Mr. Garment said that during the months he had a case pending before the court, he stayed away from the game. He lamented the growing concern for appearances, and insisted there is nothing wrong with litigants socializing with justices as long as they don't discuss pending cases. "If we can't trust justices to behave appropriately, and force them to live in a bubble," Mr. Garment said, "we can forget about the ability of a court appropriately to reflect a changing culture."

Even though Rosen doesn't think Cheney and Scalia talked about pending cases when they went duck hunting, he worries that justices are too isolated from the political sphere, especially from having informal contacts with politicians of different viewpoints. Rosen makes a big leap here, speculating that "the growing isolation between justices and politicians" is causing the Court to "treat the president and Congress as unruly schoolchildren rather than coordinate branches of government."

Presumably, Rosen is referring to the Court's enforcement of constitutional limits on the commerce power and on the power to legislate to remedy violations of Fourteenth Amendment rights. The NYT reader is expected to assume that these cases he's obliquely referring to are outrageously high-handed. There isn't room in this piece to seriously examine whether perhaps the judicial branch is simply taking its own role seriously, rather than disrespecting the other branches. Even if the Court has reined in other branches in some of these cases, that doesn't mean it has treated them like "unruly schoolchildren." It may simply mean that it has treated them as what they are, human beings engaged in the exercise of vast political power, tempted to undervalue the constitutional limitations that stand in their way.

Stronger doses of real political life don't seem likely to cure that perception.