The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Students

Student Movements Are Often Wrong

We shouldn't assume that student political movements necessarily have a just cause. Far from it.

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National Socialist German Student League poster. (NA)

 

A recent viral tweet (it has 8.6 million views) inspired by controversy over anti-Israel activism on college campuses asserts that [a] good law of history is that if you ever find yourself opposing a student movement while siding with the ruling class, you are wrong. Every single time. In every era. No matter the issue." Most admirers of student political activism don't go so far as to say student movements are always in the right. Still, the belief that student activists have some special claim to moral authority is nonetheless a common one. Aren't smart, idealistic students at least likely to be right most of the time?

Sadly, the answer is "no." As Rick Hess of the American Enterprise Institute points out, there is a long history of student movements embracing awful causes and tactics:

[L]et's tally some of the "student movements" that have been a source of (mostly authoritarian) misery, mayhem, and murder over time. In every era. And no matter the issue.

There was the student movement that helped establish Fidel Castro's oppressive regime in Cuba. In 1957, the Revolutionary Directorate, an insurrectionist organization that drew heavily upon students, mounted a bloody attack on the presidential residence during which dozens were killed. Students served as a vanguard for Castro's regime as it wantonly arrested, tortured, reeducated, and murdered those deemed suspect.

There was the Marxist-shaded Iranian student movement that helped bring Ayatollah Khomeini to power, occupied and seized hostages at the US embassy in Tehran, and fueled the rise of religious fanaticism. Ironically, for the students, one of the first actions Khomeini took was to "Islamize" universities as part of a Cultural Revolution, which involved purging Marxist and secular books and professors.

There were Mao Zedong's Red Guards, the student-led paramilitary that loomed so large in China's Cultural Revolution, who helped to round up, attack, imprison, and murder millions of "counter-revolutionaries." Impassioned students helped liquidate Mao's rivals while demanding lockstep obeisance from petty officials, educators, scientists, and educated professionals—all conveniently dismissed as members of the "ruling class."

There was Daniel Cohn-Bendit ("Danny the Red") and the French student strike of May 1968, which raised justifiable concerns of civil war. This led to street battles in Paris, the retreat of French president Charles de Gaulle to West Germany, moments when it appeared Soviet sympathizers would overthrow France's democratic government, and de Gaulle's ultimate dissolution of the National Assembly.

Then, of course, there were the US student strikes of the 1960s. While the intimidation of campus leaders, building occupations, violence, and revolutionary cosplay have somehow gained a romantic edge, the institutional destruction wrought by these protestors is perhaps best captured by recalling Mark Rudd's 1968 letter to the president of Columbia: "Up against the wall mother—–, this is a stick-up."

This list can easily be extended. The Nazis were backed by a large and active student movement—the National Socialist German Student League. When it was formed in 1926, it was most certainly opposed to the German "ruling class" of the Weimar Republic.

In the 1960s,  many white students at schools like the University of Alabama opposed desegregation and some mobilized to try to stop it. They saw themselves as opposing the overbearing power of the federal government, and the "ruling class" in Washington.

The student anti-war movement of the Vietnam era  is often seen as obviously in the right. But US withdrawal from Indochina led to establishment of a brutal totalitarian regime in South Vietnam, and to the horrific Khmer Rouge "killing fields" in Cambodia—one of the worst mass murders in world history. Hundreds of thousands of "boat people" fled Vietnam and Cambodia after the communists triumphed, creating a massive refugee crisis.  The evidence of people voting with their feet is a powerful indicator of which side in a conflict is worse. In this case, the communists were vastly more oppressive than the US-supported governments in South Vietnam and Cambodia, despite the serious flaws of the latter. Student activists who failed to see that were badly misguided.

One could still make a strong argument that the war wasn't worth it from the standpoint of America's narrow self-interest. But many student activists went far beyond that, and claimed that a communist victory would actually be a good thing. They could not have been more wrong.

Obviously, student activists aren't always in the wrong. In the 1960s, those who opposed racism and segregation were very much in the right. In more recent years, student activists were right to support same-sex marriage, and oppose racial profiling by law enforcement. And, if student activists often go wrong, the same is true of political activism by older people. The age of people supporting a cause is rarely a strong indicator of its validity.

There are, however, some systematic reasons to view student movements with a degree of skepticism. One is that younger, people, on average, have lower levels of political knowledge than older voters. In most situations, ignorance increases the chance of being wrong.

Students, on average, have higher levels of political knowledge than people who don't go to college. But they are still likely to be less knowledgeable—again, on average—than older college graduates. Recent survey data reveals widespread ignorance among students about the basic facts of the Israeli-Palestinian conflict.

Committed activists are likely to be more knowledgeable than the average student; they probably spend more time studying the issue in question. But activists with strong views are also disproportionately likely to suffer from "rational irrationality"—the tendency to be highly biased in evaluation of political information. Political activists of all ages are disproportionately likely to be highly biased "political fans" who overvalue anything that supports their preexisting views, while downplaying or ignoring contrary evidence.

None of this proves that student movements are necessarily wrong about any given issue, or even that they are generally more likely to be wrong than movements dominated by older people. The point is not that we should reflexively reject student movements' positions, but that we should not give them any special credence. That holds true for other political movements, as well.

 

 

Chemerinsky: "Anti-Semitism is not taken as seriously as other kinds of prejudice"

"A plainly anti-Semitic poster received just a handful of complaints from Jewish staff and students"

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Dean Erwin Chemerinsky wrote an essay in The Atlantic about the protest at his home. The Dean provides more details on the facts leading up to, and during the protest. But the one paragraph towards the bottom is perhaps the most important:

Overall, though, this experience has been enormously sad. It made me realize how anti-Semitism is not taken as seriously as other kinds of prejudice. If a student group had put up posters that included a racist caricature of a Black dean or played on hateful tropes about Asian American or LGBTQ people, the school would have erupted—and understandably so. But a plainly anti-Semitic poster received just a handful of complaints from Jewish staff and students.

Chemerinsky is exactly right. The double standard is painful, but utterly unsurprising for anyone who has studied anti-semitism. And if silence is violence, there was a bloodbath in what was once Boalt Hall. The fact that only Jewish staff and students complained about the poster demonstrates the problems with the DEI industrial complex: only certain types of diversity are to be promoted. Jews with any attachment to the Jewish state need not apply. And forget ideological diversity.

In every generation, there is anti-semitism. 1619 was four centuries ago, but Jewish oppressions stretches back to the beginning of recorded history. Yet Jewish people will never fit into the DEI intersectional hierarchy. The aftermath of October 7 reveals that anti-semitism is always present; it just manifests in different forms.

In December I wrote:

Regrettably, as soon as Israel was established, the millennia-long train of anti-semitism simply morphed into its latest manifestation: anti-Zionism. They don't hate all Jews, they just oppose all Jews who seek to protect the the only speck on planet Earth devoted for their protection. This doctrine was dressed up in all the academic garb of Marxism, anti-colonialism, and critical racial studies. Anti-Zionism was championed by elite academics on campuses. DEI apparatchiks, ostensibly hired to promote equity, reified the anti-Zionist trope. Students, who are woefully unfamiliar with world history, see the children of the Holocaust as just another oppressor. And, as they are taught, any act of resistance against the oppressors is not only justified, but necessary. The right type of violence demands silence.

What lessons will Chemerinsky and other progressives draw from this experience? Will they reflect on how spending countless hours and dollars on DEI yielded nothing but crickets? Or will they realize that DEI enables and emboldens these students to engage in such antisemitic activity?

I'll admit that when conservative states started to clamp down on DEI, I thought it was mostly performative virtue signaling. But the events of the past few weeks have convinced me that these efforts are not just prudent, but may be necessary for the survival of higher education. I think a significant issue in the 2024 election should be how the Department of Education enforces Title Vi.

Cert Petition Filed in United States v. Streett

A follow-up to my post last year on the inevitable discovery exception to the exclusionary rule.

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Last October, I wrote a long post on a new Tenth Circuit decision, United States v. Streett, that applied the inevitable discovery exception to a defective warrant.  My post, Does the Inevitable Discovery Exception Include Imagined Revised Attempts to Get Warrants?, argued that the decision was wrong and conflicted with Supreme Court caselaw.

I am pleased to learn that an excellent cert petition was filed yesterday in the case by Counsel of Record Tobias Loss-Eaton of Sidley Austin.  Here's the Question Presented:

Before government agents can search a private home, the Fourth Amendment generally requires them to obtain a warrant supported by probable cause. Here, officers applied for, received, and executed a search warrant based on an affidavit that contained no link at all between petitioner and the address they wanted to search. The courts below agreed, and the government conceded, that the warrant did not establish probable cause, so the search was unconstitutional. But the Tenth Circuit still let the government use the resulting evidence because, it reasoned, if the magistrate had instead denied the warrant application and pointed out the defects, the government likely would have submitted a revised application that would have established probable cause, and a valid warrant would have issued.

The question presented is: Whether the inevitable-discovery doctrine applies to save evidence obtained through an unconstitutional warrant because, hypothetically, if the magistrate had denied the warrant application and pointed out the defects, the government could have fixed them and obtained a valid warrant.

The Supreme Court has not heard a Fourth Amendment case in a few years.  And exclusionary rule cases are particularly tricky, as you never know when a narrow case might raise bigger issues that some Justices skeptical of the exclusionary rule might want to take on.  Still, this is a strong petition on a case that is worth following. As always, stay tuned.

Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Reasonable SWAT mistakes, lying forensic pathologists, and de minimis injuries.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Bound By Oath podcast: We get neuroanthropological, philosophical, and just a tad practical – and determine conclusively that property rights are a good thing and property isn't theft.

New on the Short Circuit podcast: Special guest Michel Paradis of Columbia Law (among other affiliations) gives us a lesson on secret submersibles and FOIA responses.

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Israel

Two Posts Relevant to Current Campus Conflicts Over Israel and Hamas

My October 2023 posts on the roots of far-left support for Hamas and the reasons why some "cancellations" are justified remain sadly relevant.

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Anti-Israel protest encampment at Columbia University. (AP)

 

Recent conflicts over anti-Israel protests at college campuses highlight the ongoing relevance of issues I addressed in two posts written back in October, in the immediate aftermath of the horrific October 7 Hamas terrorist attack:

"Some Cancellations are Justified," Oct. 15, 2023

"Far-Left Support for Hamas is not an Aberration" Oct. 30, 2023

The first explained why some "cancellations" of people with abhorrent views are justified, depending on the nature of the views, the type of job they are barred from, and whether stigmatization is likely to be an effective tactic in dealing with these ideologies.. I had in mind people who supported the Hamas terrorist attack and others with comparably awful views. which surely includes those current protest organizers who promote anti-Semitism and terrorism. But my reasoning also applies—perhaps with greater force—to people who go beyond expressing awful views by engaging in violence, disruption, and harassment, as some (though by no means all or even most) anti-Israel protestors have since October 7.

The post on the far left and Hamas explains why far-left support for Hamas terrorism is not an aberration, but rather is part of a long history of support for repression and mass murder by the likes of Lenin, Mao, and Castro. Many of these atrocities were on a far larger scale than anything Hamas has so far been able to pull off.

Obviously, not all anti-Israel protestors are far leftists. Some are radical Islamists or Arab nationalists.  Others just think Israel is using excessive force, or the like. Many more may be just hangers-on without much in the way of clear ideological commitments—"more Woodstock than Weathermen," as my co-blogger David Bernstein puts it. Nonetheless, far-leftists (as I defined them in my post), are prominent among the leaders of disruptive protests that feature support for terrorism and anti-Semitism. Their influence on college campuses is far greater than in most other parts of society. We should not be surprised that adherents of an ideology that justifies terrorism, Gulags, and mass murder would not blanch at the kind of (fortunately) much lesser forms of violence and disruption that we see at some campus protests.

I should emphasize that both posts include a variety of caveats and distinctions. For example, it is not my claim that people with awful views should  be "cancelled" from employment of every kind. Much depends on the nature of the job in question. I also don't claim that all left-wingers or anyone to the left of me qualifies as "far left" in the sense used in my post on that topic. In addition, there is a crucial distinction between private refusal to hire or otherwise associate with people, and government suppression of speech. Sadly, Texas Gov. Greg Abbott's response to some of the campus protests in his state falls into the latter category, and thereby violates the First Amendment.

I will also take this opportunity to reiterate a point made in the post about the far-left, to the effect that various right-wing political movements also have awful histories of justifying atrocities, and of anti-Semitism. Having recently coauthored "The Case Against Nationalism," and argued for the prosecution and disqualification of Donald Trump, I cannot easily be accused of being soft on reprehensible right-wing movements.

The posts include other qualifications and nuances, as well. This is is a set of issues where it is more than usually necessary to "read the whole thing," and not just rely on headlines and social media rants.

But, caveats aside, the issues raised in both posts remain relevant. And that relevance is likely to continue, even after the current wave of unrest subsides. It probably won't be the last time far-left awfulness manifests itself, or the last time we have to consider when and if cancellation is justified.

 

Presidential Bribery and the Clear Statement Rule in Trump v. United States: Revisiting Issues From The First Trump Impeachment and the Mueller Investigation

Questions from Chief Justice Roberts and Justices Kavanaugh and Gorsuch revisit unresolved issues from 2017-2020.

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Today the Supreme Court heard oral argument in Trump v. United States, the presidential immunity case. Much of the argument concerned issues left unresolved during the Trump presidency. 

First, during the Mueller investigation, it was alleged that Trump violated the federal obstruction of justice statute. I, and others, countered that a criminal statute should only apply to the President if there is a "clear statement" to that effect. In other words, a general criminal statute should not be read to apply to the President. 

Second, it is true that in 1995, the Office of Legal Counsel suggested in an opinion that the federal bribery statute, 18 U.S.C. § 201, would apply to the President, even though there was no "clear statement." But bribery is somewhat unique in that the Constitution expressly enumerates bribery as a ground of impeachment. It is difficult to then argue that the President has some sort of constitutional authority to engage in impeachable conduct. 

Third, however, the mere fact that a former President could be prosecuted for bribery does not resolve the allegations leading up to the first Trump impeachment: what exactly is bribery in the context of the presidency? At the time, Seth Barrett Tillman and I acknowledged the easy case: the President receiving a "suitcase full of money" in exchange for performing some official act would amount to bribery. But the theory of the first impeachment was different. Then-Speaker Nancy Pelosi argued that Trump "violated his oath by threatening to withhold military aid and a White House meeting in exchange for an investigation into his political rival."

Fourth, to address these allegations, Seth and I offered a theory for bribery in the context of public officials like the President. This theory explains why motives (including mixed motives) are entirely irrelevant to establishing any traditional or common law sense of "bribery," including "bribery" as used in the Constitution or in the U.S. Code. It is very difficult to disentangle "public" motivations from "personal" motivations. We wrote:

We start from a simple premise: Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined. When government officials act, they almost always act with mixed motives: They act in part to promote the public good and in part to remain in office, or perhaps to seek higher office. Often, the two concepts overlap: What's good for the country is good for the official and his or her chances at reelection. All politicians understand this dynamic, even—or perhaps especially—Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote.

Our position can be summarized in a single sentence: Where one public official act is traded for another public official act, there has not been any illegal conduct. (In my view, of all the things that Seth and I wrote, this is probably one of the most important.) Though these writings were limited to the context of impeachment, I think they would apply more broadly to any federal bribery prosecution of any current or former federal official, including (if not especially) the President.

Fifth, motivations do not play an important role in this analysis. With the president, "personal and public motivations are inextricably intertwined." Why? As we explained, politicians never lose sight of the next election. Merely acting with an eye towards retaining office is not an improper purpose. We wrote:

We consider Trump to stand in a position similar to the log-rolling members of Congress. In our view, he acted to promote the public interest, as he understood it, with the full recognition that his actions also increased the probability that he may prevail at the next election. In those circumstances, Trump's request does not amount to bribery. Poor political discretion, perhaps. But we see no way on these facts to disentangle a motivation to promote American interests abroad from a competing motivation to assist his reelection campaign.

I later expanded on this theme in a New York Times guest essay published before the impeachment trial started. I explained that "receiving a 'political benefit' does not transform an otherwise legal action (like requesting an investigation) into an abuse of power." I wrote that many Presidents acted based on "dueling motives." President Lincoln, for example, allowed soldiers to return home to vote, even though this action may have put the military campaign at risk, or, at the very least, shifted risk of life and limb onto others remaining on the field of battle. I observed, "Lincoln's personal interests should not impugn his public motive: win the war and secure the nation." 

None of these five points were ever addressed by the federal courts, since Trump was never indicted by Mueller. But all five of these points came up during oral argument today in Trump v. United States. I had a sense of déjà vu.

The Clear Statement Rule

The most interest in the clear statement rule came from Justice Kavanaugh. I think of all members of the Court, Justice Kavanaugh has perhaps the most insights on what it means to prosecute a President. Justice Kavanaugh has seen this issue from both sides. Earlier in his career, he worked under Independent Counsel Ken Starr. And later in his career, he served as a White House attorney under President George W. Bush. I remember when there were calls to charge members of the Bush administration with war crimes and worse. Kavanaugh stated, "this case has huge implications for the presidency, for the future of the presidency, for the future of the country." He is exactly right.

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Immigration

New Evidence that Making Legal Migration Easier Reduces Illegal Border Crossings

Economist Michael Clemens has the most extensive and sophisticated analysis of this issue to date.

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Migrants wait to be processed at the U.S.-Mexico border in Eagle Pass, Texas
(Miguel Juarez Lugo/ZUMAPRESS/Newscom)

I and others have long argued that making legal migration easier is the best way to reduce disorder at the border. To a large extent, this basic Economics 101: if a much-coveted good or service is banned or severely restricted, that predictably creates a large black market. Thus, just as alcohol prohibition led to widespread bootlegging and illegal purchases from the likes of Al Capone, so severe migration restrictions predictably incentivize illegal migration. In a new paper for the Peterson Institute for International Economics, my George Mason University colleague Michael Clemens—one of the world's leading immigration economists—provides the most extensive and sophisticated analysis of this issue to date.

Here is the abstract, summarizing his findings:

An increasing number of migrants attempt to cross the US Southwest border without obtaining a visa or any other prior authorization. 2.5 million migrants did so in 2023. In recent years, responding to this influx, US officials have expanded lawful channels for a limited number of these migrants to cross the border, but only at official ports of entry. These expanded lawful channels were intended to divert migrants away from crossing between ports of entry, by foot or across rivers, thereby reducing unlawful crossings. On the other hand, some have argued that expanding lawful entry would encourage more migrants to cross unlawfully. This study seeks to shed light on that debate by assessing the net effect of lawful channels on unlawful crossings. It considers almost 11 million migrants (men, women, and children) encountered at the border crossing the border without prior permission or authorization. Using statistical methods designed to distinguish causation from simple correlation, it finds that a policy of expanding lawful channels to cross the border by 10 percent in a given month causes a net reduction of about 3 percent in unlawful crossings several months later. Fluctuations in the constraints on lawful crossings can explain roughly 9 percent of the month-to-month variation in unlawful crossings. The data thus suggest that policies expanding access to lawful crossing can serve as a partial but substantial deterrent to unlawful crossing and that expanding access can serve as an important tool for more secure and regulated borders.

This is a large effect. It implies, for example, that doubling the number of people allowed to cross the border legally would reduce illegal entry by %30. At the same time, we should not be surprise that the effect falls short of a 1 to 1 correspondence. For obvious reasons, many new legal entrants won't necessarily be people who would otherwise have tried to enter illegally.

I would add that, while Clemens uses an extensive body of data, none of the measures easing legal entry came anywhere close to legalizing it for a large majority of those seeking to immigrate into the United States. Even at its most permissive, border policy during the period studied still barred legal entry to the large majority of would-be migrants.

A more extensive shift towards "open borders"—such as allowing entry to anyone who registers with the authorities and there is no evidence he or she plans to engage in crime or espionage—might well lead to the near-total cessation of illegal migration, thereby also eliminating all or most involvement by organized crime. Similarly, the end of alcohol prohibition largely eliminated the role of organized crime in that industry.

Obviously, preventing disorder at the border is far from the only rationale for immigration restrictions. If your main reason for advocating restrictionism is some other rationale, such as preventing immigrants from overburdening the welfare state or spreading potentially harmful cultural values, Clemens' results may not move you much. I address many of these other types of concerns in detail in Chapters 5 and 6 of  my book Free to Move: Foot Voting, Migration, and Political Freedom. But "border security" has become a major rationale for restrictionism in public debate, one that often gets more attention than any other. Clemens' important work adds to the already considerable evidence indicating that we can effectively address that issue by making legal migration easier.

In a previous post, I wrote about Clemens' new paper showing that mass deportations of migrants destroy more jobs for native-born Americans than they create. His most famous article describes the enormous economic benefits of dropping immigration restrictions, which could well result in a doubling of world GDP.

Politics

The Kentucky Legislature Removed The Governor's Power To Temporarily Appoint A Senator

Would the Governor's veto of the bill have even been effective?

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Back in August 2023, I wrote about a potential Seventeenth Amendment conflict in Kentucky. Under Kentucky law, in the event of a Senate vacancy, the Governor could only appoint a temporary Senator of the same political party as the former Senator. The Kentucky Legislature has a Republican super-majority with a Democratic Governor. And the Governor indicated that he thought this constraint on his powers to appoint a Senator violated the Seventeenth Amendment. Vikram Amar suggested there were indeed problems. As history played out, Senator Mitch McConnell of Kentucky remains in office, so this issue was never tested.

However, the Kentucky legislature took another, even more potent step: it stripped the Governor of the power to appoint any temporary Senator. The Seventeenth Amendment does not require the Governor to even have this power. It provides, in part:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

May, not must. I see no constitutional problems with the text of House Bill 622, which repealed KRS 63.200. But, perhaps unsurprisingly, the Governor vetoed HB 622. He wanted to keep the same temporary appointment power that his predecessors had. Ultimately, the legislature overrode the veto, so HB 622 became law.

This sort of politics is not new. Consider the flip-flop by the Massachusetts legislature. In 2004, Senator John Kerry was running for President, and there was a Republican Governor, Mitt Romney. The Democratic legislature stripped the Governor's power to make a temporary appointment, lest Mitt Romney temporarily appoint a Republican Senator. Five years later, in 2009, Senator Ted Kennedy was quite ill, and there was a Democratic Governor. The Democratic legislature restored the Governor's power to make a temporary appointment. That way, a temporary appointment would maintain the Democrats' 60-vote bloc in the Senate, and support the Affordable Care Act. (I wrote about this history in Unprecedented.)

For a moment, consider a counterfactual. If the Kentucky legislature did not override the Governor's veto, would the veto have been effective? You may say, of course a Governor's veto would be effective. But not so fast. If the Constitution assigns a function to the "legislature of any state," does the Governor have any role in that process? Or does the "legislature of any State" actually refer to the entire apparatus of the state government, including the executive's veto power, and perhaps judicial review by the courts? This latter argument would sound in the anti-ISL theory from Moore v. Harper.

There are some textual differences between the Seventeenth Amendment and the Elections Clause. The Elections Clause provides, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The Moore Court observed that this clause specifically refers to the broader lawmaking process under the Constitution, which would include the executive and judicial branches. Laws that are prescribed by the state are passed by the legislature, approved by the governor, and reviewed by the courts for conformity with the state constitution.

By contrast, the second paragraph of the Seventeenth Amendment refers to two specific actors: "the executive authority of such State" and "legislature of any State." This text seems to distinguish between the separate branches of state governments. If the legislature gives the Governor the power to fill those vacancies, the Governor can fill those vacancies. (I do not think the Governor is required to make a temporary appointment, but he "shall issue writs of election.") But the Governor lacks that power if the Legislature withholds it. The Moore v. Harper argument does not naturally graft onto this text. Likewise, the decision to "empower" or disempower the executive belongs to the "legislature." Would it flout the Seventeenth Amendment if the Governor could prohibit the legislature from disempowering the Governor through a veto? And query whether the repeal bill would even be subject to judicial review?

There is also a related line of cases about whether the President must sign a constitutional amendment. Seth Barrett Tillman wrote about it here. And Mike Rappaport offered some thoughts about when governors have to sign constitutional amendments.

Moreover, it is useful to compare the Seventeenth Amendment with the predecessor provision in Article I, Section 3, Clause 2:

if [Senate] Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

This text expressly granted the Governor the power to make temporary appointments, and that power could not be taken away by the legislature. By contrast, the Seventeenth Amendment took away the absolute temporary appointment power from the Governor, and allowed the state legislature to make the decision. This shift makes sense, since in the normal course the pre-Seventeenth Amendment legislature would choose senators; the governor played no formal role in that process. The Seventeenth Amendment at least preserved some role for the legislature to play in the event of a temporary vacancy.

Finally, if we are being originalists, we should look to the meaning of "legislature" during the Progressive Era, rather than in 1787.

Then again, I think there would have to be a careful study of practice. For example, were the appointments of Senators by state legislature prior to the Seventeenth Amendment presented to Governors? Did the state courts play any role in reviewing those appointments? This may be a question that winds up in the construction zone.

I do not know if the Governor's veto of the bill would have been effective. Since the legislature overrode it, there is no need to test the issue.

I thank Professors Rob Natelson, Seth Barrett Tillman, and Mike Rappaport, for helping me think through some of these fun issues.

Immigration

Building on the Success of Uniting for Ukraine

A new CBS article details the successes of a program enabling Americans to sponsor Ukrainian migrants fleeing the Russian invasion to live and work in the US.

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(NA)

CBS News recently published an article reviewing the impressive success of the Uniting for Ukraine program, which allows Americans to sponsor Ukrainian migrants fleeing Russia's brutal invasion of their country. Ukrainians with such sponsorship can live and work legally in the US for up to two years. Since it began two years ago, the program has enabled some 187,000 Ukrainians to come to the United States, begin working and contributing to our economy, and all with little controversy or opposition:

In April 2022, the Biden administration created an unprecedented program known as "Uniting for Ukraine," allowing an unlimited number of Ukrainians sponsored by Americans to come to the U.S. and work here legally without having to go through the lengthy visa process….

In two years, U.S. immigration officials have approved more than 236,000 cases under the Uniting for Ukraine program, according to the Department of Homeland Security. As of the end of March, more than 187,000 Ukrainians had arrived in the U.S. under the policy….

Another 350,000 Ukrainians have arrived in the U.S. outside of the sponsorship process since the start of the Russian invasion, mainly through temporary visas, according to DHS…

Republican-led states, for example, have filed lawsuits against virtually every major Biden administration immigration policy, including a similar sponsorship program for migrants from Cuba, Haiti, Nicaragua and Venezuela. But the Uniting for Ukraine program has not been challenged in court. In fact, some Republican lawmakers have expressed support for welcoming Ukrainian refugees.

While the arrival of hundreds of thousands of migrants at the U.S.-Mexico border has strained resources in some communities like New York City, Chicago and Denver, the resettlement of Ukrainians has not provoked the same backlash, nor triggered major political problems for the Biden administration.

Unlike the program for Cubans, Haitians, Nicaraguans and Venezuelans, which is capped at 30,000 approvals per month, Uniting for Ukraine has no numerical limit. Applications for the Uniting for Ukraine program are also adjudicated fairly quickly, sometimes in a matter of weeks or even days — a rarity in a backlogged and understaffed U.S. immigration system.

Krish O'Mara Vignarajah, president and CEO of the refugee resettlement organization Global Refuge, said Uniting for Ukraine "shows how the U.S. can act with swiftness when it wants to."

Those who come to the U.S. under Uniting for Ukraine need an American sponsor willing to help them financially, and they can work legally immediately after setting foot on U.S. soil. Congress also made the first wave of Ukrainian refugees eligible for refugee resettlement benefits, such as food stamps.

Migrants coming from the southern border can't work legally until 180 days after they request asylum. They're also generally not eligible for federal benefits. Cubans, Haitians, Nicaraguan and Venezuelans who arrive under the other sponsor policy have to apply for a work permit before they can work legally.

The combination of private sponsorship and immediate work permits has enabled U4U participants to make a quick transition to being self-supporting, minimizing any burden on public resources.

I myself am a sponsor of two families in the U4U program (eight people in all), and have also served as an informal advisor to philanthropic efforts that have led to the sponsorship of several dozen more people (some in U4U and others in the very similar CNVH program mentioned in the CBS article, which applies to Cubans, Haitians, Nicaraguan and Venezuelans). Thus, I can personally testify to these programs' relative effectiveness, especially in comparison with the normally sluggish pace of immigration visa approval. The key to the success is the relative lack of regulation and bureaucratic supervision.

The CBS article does err slightly on one point: while U4U participants are allowed to work immediately, for that authorization to continue, they must file a Form I-765 on the USCIS website within 90 days. In that respect, they are similar to the CNVH participants. In my experience, however, applications for these forms are processed quickly—in sharp contrast to work permits for asylum seekers, which are usually not granted for many months or even years, thereby making it difficult or impossible for those migrants to support themselves, and creating burdens for local governments.

Uniting for Ukraine and CNVH are valuable potential models for future immigration policy. I have long argued that they should be expanded to migrants from other countries, particularly those fleeing war, violence, and oppression. Dropping the 30,000 per month cap on CNVH participants and expanding that program to encompass more countries would also help alleviate pressure on the southern border. The U4U policy of granting immediate work permits should be extended to asylum seekers.

U4U and CNVH do have one major limitation: they only allow migrants to stay for up to two years, though in the case of U4U the White House has granted participants the right to apply for "re-parole," thereby giving them another two years. Experience shows that migrants fleeing war and oppression will often need permanent refuge. That's both good for them, and a way to enable them to make greater contributions to our economy and society. Congress should enact adjustment acts giving U4U, CNVH, and other migrants entering through "parole" programs (e.g.—Afghans) permanent residency.

The CBS article notes the sharp contrast between the almost universally favorable reception of U4U and substantial right-wing opposition to the very similar CNVH program, as well as other efforts to expand legal immigration. It's notable that twenty red states have filed a dubious lawsuit against CNVH (a federal court recently ruled the states lack standing to bring the suit), but did not challenge U4U, even though the legal rationales for the two programs are nearly identical.

As the CBS article implies, it's hard to avoid the conclusion that the difference is at least in part due to the race, ethnicity, and religion of the migrants in question. Most Ukrainian refugees are white Christians, while those from the CNVH countries are mostly non-white, and the Afghans, of course, are mostly both non-white and Muslim.

Not all U4U participants are white Christians. For example, one of my sponsoree families are members of the Azeri Muslim minority (thus, neither white nor Christian, at least not in the way whiteness is usually understood in America). Some Ukrainian refugees are members of other minority groups, such as Jews and Crimean Tatars (the latter are also predominantly Muslim). But the majority of Ukrainian migrants are white and Christian, and that is certainly how they are perceived by most Americans.

While it would be naive to discount racial and religious prejudices, it is possible to overcome them. America has previously welcomed non-white and/or non-Christian refugees fleeing oppression from places as varied as Cuba and Vietnam. The Afghan Adjustment Act enjoys broad support in Congress (it was included in the recent bipartisan Senate border bill), and might yet be passed. Hopefully, we can build on the success of Uniting for Ukraine, despite political obstacles.

Free Speech

Gen. Michael Flynn's Brother v. CNN "False Light" Lawsuit Dismissed

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From today's decision by Judge Arun Subramanian (S.D.N.Y.) in Flynn v. CNN, Inc.:

Plaintiffs Jack and Leslie Flynn have sued Defendant Cable News Network … under Rhode Island's false-light statute. The Flynns claim $75 million in damages. The entire dispute stems from a six-minute segment and, more specifically, the segment's use of a two-second clip in which the Flynns appear. The Flynns say the segment falsely painted them as "QAnon followers."

The parties agree that QAnon is "an American conspiracy movement that began in 2017." The conspiracy centers around "Q," who is supposedly "a high-ranking government official" who "leak[s] top secret information" about the "Deep State." There have been about 5,000 of these leaks (or "Q drops"). The Flynns say that "a series of outlandish beliefs … have grown out of these Q drops." But just exactly what those beliefs are is unclear (and is one of the main subjects of this opinion). Before this suit was filed, Jack himself characterized QAnon as "[j]ust People doing their own research and learning independence of thought to find the truth."

The CNN report at issue aired in February 2021. It was framed around an October 2020 event called "Q Con Live!" The report opens with a series of short clips from the event, followed by the reporter's voiceover explaining that the footage was from a "gathering of QAnon followers in Arizona just two weeks before November's election." The video next shows the so-called QAnon Shaman, who is wrapped in a flag that says, "WHERE WE GO ONE WE GO ALL." The voiceover explains, "He's known as the QAnon Shaman, and he would go on to storm the Capitol in January." The video then cuts to someone at the event singing "where we go one, we go all." The voiceover then says, "'Where we go one, we go all': an infamous QAnon slogan promoted by Trump's first National Security Advisor, Michael Flynn."

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Free Speech

John McWhorter on the Columbia Protests

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An excerpt from his column in yesterday's N.Y. Times:

Last Thursday, in the music humanities class I teach at Columbia University, two students were giving an in-class presentation on the composer John Cage. His most famous piece is "4'33"," which directs us to listen in silence to surrounding noise for exactly that amount of time.

I had to tell the students we could not listen to that piece that afternoon because the surrounding noise would have been not birds or people walking by in the hallway but infuriated chanting from protesters outside the building. Lately that noise has been almost continuous during the day and into the evening, including lusty chanting of "From the river to the sea." Two students in my class are Israeli; three others, to my knowledge, are American Jews. I couldn't see making them sit and listen to this as if it were background music.

I thought about what would have happened if protesters were instead chanting anti-Black slogans or even something like "D.E.I. has got to die," to the same "Sound Off" tune that "From the river to the sea" has been adapted to. They would have lasted roughly five minutes before masses of students shouted them down and drove them off the campus. Chants like that would have been condemned as a grave rupture of civilized exchange, heralded as threatening resegregation and branded as a form of violence. I'd wager that most of the student protesters against the Gaza war would view them that way. Why do so many people think that weekslong campus protests against not just the war in Gaza but Israel's very existence are nevertheless permissible? …

Today's protesters don't hate Israel's government any more than yesterday's hated South Africa's. But they have pursued their goals with a markedly different tenor — in part because of the single-mindedness of antiracist academic culture and in part because of the influence of iPhones and social media, which inherently encourage a more heightened degree of performance. It is part of the warp and woof of today's protests that they are being recorded from many angles for the world to see. One speaks up.

But these changes in moral history and technology can hardly be expected to comfort Jewish students in the here and now. What began as intelligent protest has become, in its uncompromising fury and its ceaselessness, a form of abuse.

As our readers may gather from my past posts, I don't think that the protests should be viewed as not "permissible" based on their viewpoint, though I do think that a university can reasonably limit extended loud protests audible from classrooms, whether what's being chanted is "from the river to the sea" or "abortion is genocide" or "Hare Krishna" or "Go Bruins!" But in any case, McWhorter's perspective, which is more about campus culture rather than law, struck me as worth noting.

Free Speech

Private, Shmivate: Sit-ins, Campouts, and True Threats Are Constitutionally Unprotected at Universities, Whether Private or Public

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The Wall Street Journal had an editorial this morning called "Defining Free Speech Down on Campus"; I agree that disruptive protests are unprotected by the First Amendment, but I think the editorial erred in its emphasis.

The editorial begins by arguing that no First Amendment rights to protest on privately owned property:

Universities are supposed to be places where students and faculty can debate politics and other subjects without fear or censure. As the anti-Israel protests spread at Columbia, Yale, Harvard, New York University and elsewhere, however, progressives are claiming that any restriction on the protesters is a violation of free speech.

Under its "state action doctrine," the Supreme Court has ruled that the First Amendment applies to government actions toward citizens. It doesn't apply to private citizens or institutions except in rare instances when they are acting as government agents.

It then moves on, in the third and fourth paragraphs, to further focus on private property, noting that the recent UC Berkeley law school incident related to Dean Erwin Chemerinsky happened on "his property," and that Columbia is "a private university" that "has the right to set its own rules on speech as part of a contract to teach or study at the school."

But the real key to analyzing these incidents, I think, is buried in the second sentence of the seventh paragraph:

Even at a public university, all these rules would constitute reasonable restrictions on the time, place and manner of speech.

There is no First Amendment right to camp out in any university, public or private. Indeed, there is no First Amendment right to camp out even in public parks (see Clark v. CCNV (1984)), and the government's power to limit the use of property used for a public university is even greater than its power as to parks (Widmar v. Vincent (1981)):

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Free Speech

No Pseudonymity in Lawsuit Challenging N.Y.'s Involuntary Commitment System as It Affects Gun Rights

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In P.D. v. Sullivan (S.D.N.Y.), plaintiff alleges:

New York State Mental Hygiene Law 9.39 is used to admit individuals to a hospital solely for emergency observation and evaluation as a person "alleged" to have a mental illness. An admission under MHL 9.39 is not a formal adjudication that an individual suffers from a mental disease or defect. NYS Office of Mental Health Transmission of Mental Health Records to NICS. New York Mental Hygiene Law 7.094 authorizes the Office of Mental Health (OMH) to collect, retain, modify, or transmit data or records for inclusion in the NICS system for the purpose of responding to NICS queries regarding attempts to purchase or otherwise take possession of firearms, as defined in 18 U.S.C. 921(a)(3)….

Plaintiff contends that his Second and Fourteenth Amendment rights were, and are continuing to be, violated by the inclusion of his personal identifying information in the SAFE Act database [which New York maintains to "stop[] criminals and the dangerously mentally ill from buying a gun" -EV] and continued reporting to NICS and other third parties that Plaintiff is a prohibited person….

Plaintiff seeks a declaration from this Court that being "admitted", whether voluntarily or involuntarily, under MHL 9.39 does not constitute an "involuntary commitment to a mental institution" for purposes of terminating the rights protected by the Second and Fourteenth Amendments. Plaintiff seeks a declaration that MHL 7.09(j) is vague and overbroad and violates the Second and Fourteenth Amendments, as applied to Plaintiff….

The case is still in its early stages, so there has been no decision about the merits; but Monday Judge Nelson S. Román held that plaintiff could not litigate pseudonymously:

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Disagreeing with Eugene about the Anti-Hillel Incidents at Northwestern University Last Week

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April 15, 2024, was admitted students day at Northwestern University. Student protestors took advantage of that day to, well, protest.

As the Daily Northwestern reported, "Demonstrators outside Sargent and Allison handed out flyers that welcomed admitted students to what they called the 'real Northwestern' around noon." The leaflet handed out by protesters accused Northwestern of "funneling Jewish students into Hillel, the Zionist 'foundation for Jewish life.'"

Later in the day, students held a protest rally, which included a student inveighing again NU Hillel as the "Zionist home of Jewish life on campus" in a speech during the rally. "Hillel is one of the many ways in which this university is complicit in infusing Jewishness with Zionism," the organizer said.

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