Originalism is Neutral Because the Court Hasn't Outlawed Abortion Everywhere?

That seems to what Michael Ramsey argues in response to this column by Paul Waldman.  Waldman argues (fervently) that conservative justices vote their political preferences and are not constrained by purportedly neutral theories of interpretation:

It was all a lie, a scam, a con: the assurances that they were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”

Somehow that philosophy nearly always produces results conservatives want: undermining voting rights, enhancing corporate power, constraining the rights of workers, enabling the proliferation of guns, and now most vividly, allowing state governments to force women to carry pregnancies to term against their will.

Ramsey takes issue with this:

But the abortion case actually shows the opposite of Waldman's claim.  The conservative legal movement doesn't want just to overturn Roe; it (or at least part that cares most about the issue) wants to outlaw abortion.  In Dobbs, though, at most the Court may merely withdraw the constitutional bar on abortion restrictions so that the question can be resolved by the political branches. 

Why not do more?  Why wouldn't the Court rule that states that permit abortion violate the Constitution?  If the conservative Court really believes it can "legislate from the bench" to "produce[ ] results conservatives want," isn't that the outcome we would expect?

Surely the Constitution can accommodate that conclusion.  As many on the left have argued, the Constitution's due process and equal protection clauses are open-ended and can be read to appeal to broad principles to be applied in light of contemporary morality and policy.  If, as anti-abortion conservatives believe, human life begins at conception or some point near to it, an aggressive living-constitutionalist conservative could find in those clauses a protection for unborn life.  Far less plausible claims have been made and accepted by courts on behalf of the policies of the left.

The conservative originalist Justices on the Court are not going to rule this way, and Justice Scalia -- as firmly anti-abortion as anyone -- never considered it.  The reason is originalism.  Though a few scholars have argued to the contrary, the overwhelming mainstream originalist position, among both scholars and judges, is that the Constitution's original meaning does not protect unborn life.  (See here from Jonathan Adler: Why the 14th Amendment Does Not Prohibit Abortion.)  It is the Justices' commitment to originalism and textualism that prevents them from legislating from the bench to achieve conservative policy goals in the abortion debate.  (And originalism is criticized by some conservatives on this ground.)

Ramsey claims that originalism is what prevents conservative Justices from affirmatively outlawing abortion. But this is what overturning Roe would do, to a significant extent. If the Court overturns Roe by upholding a ban on abortion, the effect is that abortion is banned in the affected jurisdiction.  Not only that, but it's immediately banned in 21 other states as well. Overturning Roe has the practical impact of banning abortion immediately in nearly half of the states. 

Sure, it isn't a nationwide ban. But once Roe is overturned, how soon will it be until there is federal legislation to ban abortion nationwide? From betting that's going on in academic spheres, it look like the expectation is a couple of days. With Roe out of the way, lobbying and support for such a law will redouble, backed by assertions that it has the Court's blessing. I hope that this is a pessimistic view of things--maybe the overturning of Roe will light a fire under democrats and prompt them to take action. But I'm not optimistic this will happen.

Such a federal law wouldn't be a constitutional decree. But under this chain of events, the conservative Justices' goal of outlawing abortion would be achieved with no other Court action beyond overturning Roe v. Wade. The Court would not suffer the institutional loss of credibility that an aggressive, constitution-based ban on abortion would entail. The Court would therefore be free to support conservative policies and goals under the guise of originalism's neutrality in any number of other cases and contexts.  Ramsey claims that a refusal to affirmatively outlaw abortion on constitutional grounds is evidence of originalism's constraining effect. A far more plausible explanation is that conservative justices want to preserve their influence and credibility, and can do so at no cost, since most of the work they want to see done will be done for them by other political actors.

Just because the Court doesn't take an immediate and drastic turn to the right and capitulate to the wildest dreams of the most extreme conservatives does not prove that originalism is the neutral, constraining principle that its proponents claim it to be. Claiming that this is what must be demonstrated to prove that originalism covers up political decisions is a disingenuous tactic that moves the goalposts and ignores political context.

READ MORE - Originalism is Neutral Because the Court Hasn't Outlawed Abortion Everywhere?

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Pennsylvania State Legislator Contemplates Statewide Law Against "Distracted Walking"

A recent editorial from TN Online reports:

State Rep. Karen Boback, a Republican whose district includes parts of Luzerne and Lackawanna counties, says she is going to introduce legislation that provides penalties for walkers who are inattentive while crossing a street or highway.

In a memo to legislative colleagues seeking co-sponsors for her bill, Boback said that distracting walking is a “very real and serious issue.”

Boback is most concerned with pedestrians who are inattentive because they are engrossed in conversations on their cellphones or are listening to music or other programming.

“Technology has invaded our life, and, as a result, people have stopped paying attention to their surroundings,” Boback wrote.

More reporting on this is available at Patch. It isn't clear why Boback is choosing to take a stand against "distracted walking." The TN Online writer notes that fewer pedestrians were killed by drivers in 2020 than in 2019. Of those 145 deaths, there is no indication how many of them, if any, were due to pedestrians who were distracted. 

Seeking to do Boback's job of justifying her proposed policy, the article cites a Governors Highway Safety Association Report which purportedly shows that "texting while walking has taken on a key role in pedestrian death in recent years as communication devices have become more mobile, compact, and numerous." The article fails to link to the report, or provide a year for when it was written. It may be citing this 2016 report which speculates that pedestrian distractions are contributing to pedestrian deaths and injuries, although it explicitly states that it "remains unknown" how many pedestrians killed in crashes with distracted drivers were themselves distracted. The report cites instances and studies suggesting that pedestrian distractions are on the rise, but does not draw a link between such distractions and traffic deaths. Indeed, a New York study specifically investigating whether distracted walking contributed to pedestrian fatalities and injuries found "little concrete evidence" of a connection.

The Pennsylvania law appears to be in its early stages, as it does not appear that a statute has been drafted yet. Hopefully Boback will give the bill some more thought and conclude that it isn't worth it. Indeed, her basis for contemplating the bill appears to be anecdotal notions of technology "invading" people's lives. Reports on her proposal have to do the work themselves to dig up evidence supporting measures restricting texting while walking, and these reports often fail to confirm a link between instances of distracted walking and increased pedestrian deaths. As I have noted before, legislators seeking to prevent traffic deaths, and particularly pedestrian deaths, would do better to focus on infrastructure by making cities and towns safer for pedestrians. This includes increasing the number of crosswalks, ensuring adequate lighting, lowering speed limits, and reducing the width of streets, among other measures. Boback herself appears to have been involved in such infrastructure measures in the recent past, which makes it all the more surprising that she is seeking to put the onus on pedestrians--who are most at risk of death or serious injury. A statewide restriction on distracted walking is a blunt instrument that targets the wrong actors and ignores factors that lead to greater risks of pedestrian death and injury.

In addition to being misguided from a public safety perspective, laws against distracted walking criminalize ubiquitous behavior, which promotes selective enforcement. Many people check their phones while walking, including while crossing the street. As a result, police officers tasked with the enforcing the law will use their discretion to determine who to stop and ticket for these violations, meaning that the brunt of any law will likely fall more heavily on people in poorer neighborhoods and racial minorities.

A few cities and municipalities in the United States and other countries have banned various forms of walking while on the phone or while using other electronic devices. All of these measures target a phenomenon that most have likely observed or experienced, but which has little ultimate impact on pedestrian safety--at least when compared with other measures that legislatures can take to reduce traffic deaths and injuries. This story is notable because it suggests that a statewide ban may be possible. One can only hope that the bill, if it is ever written, will fail to gain the support necessary to become law.

READ MORE - Pennsylvania State Legislator Contemplates Statewide Law Against "Distracted Walking"

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Iowa's Law Targeting "Critical Race Theory"

A few weeks ago, Iowa's governor signed a law that she claimed would address the teaching of "critical race theory." Shortly after she signed the bill into law, the Des Moines Register reported:

Iowa Gov. Kim Reynolds signed a new law that she said will target the teaching of critical race theory and other concepts in government diversity trainings and classroom curriculum.

“Critical Race Theory is about labels and stereotypes, not education. It teaches kids that we should judge others based on race, gender or sexual identity, rather than the content of someone’s character,” Reynolds said in a statement. “I am proud to have worked with the legislature to promote learning, not discriminatory indoctrination.”

Critical race theory, a decades-old legal theory that examines how slavery's legacy continues to influence American society, is not specifically named in the new legislation. But the law would ban teaching certain concepts, such as that the U.S. or Iowa is systemically racist.

The new law, House File 802, goes into effect July 1.

Reynolds' signing comes as other Republicans across the country have said they want to eliminate teaching critical race theory and associated concepts from classrooms. Iowa is among more than a dozen states that have considered legislation this year aimed at eliminating similar concepts from classroom curriculum.

That same Register article notes that Iowa's law is based "nearly word for word" on an executive order issued by the Trump Administration (that is now repealed) that banned certain forms of diversity training for federal contractors. The Register's prior reporting on that order is here, the order itself is here.

There are a number of glaring practical problems with the law, which appear to be based, in part, on the bill's origin in a ban on training for contractors. For one, the law contains no penalty or disciplinary provisions, so it is unclear what would result from a violation of the law. The bill also includes prohibitions on certain types of training, but also includes restrictions for school curricula. While the restrictions on training are somewhat explicit, the restrictions on school districts and their curricula are woefully vague.

These defects, and others, are addressed in the remainder of this post, which walks through the law and tries to make sense of what is being restricted.

The Law's Definition of "Scapegoating," "Stereotyping," and Specific Defined Concepts

To start, the law defines a few key phrases:

Section 261H.7(1)(a) defines "Race or sex scapegoating" as "assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex, or claiming that, consciously or unconsciously, and by virtue of persons' race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

261H.7(1)(b) defines "Race or sex stereotyping" as "ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of the individual's race or sex."

Before moving on to other defined terms, a few thoughts on these definitions.

The "scapegoating" notion is more limited than it may first appear, because it only addresses instances where fault, blame, or bias is attributed to a particular race or sex, or members of a race or sex, because of that person's race or sex. This includes the portion of the definition that addresses conscious and unconscious bias--the definition only applies if that bias is because of the biased person's race or sex. While I am not an expert on the subject, it is my understanding that most discussions of bias often focus on biases being prompted by those being targeted or evaluated, rather than by the holder of the bias. This means that people of all races may have a particular, stereotyped view of a particular race--for example, both White and African-American police officers may hold an unconscious bias against African-American suspects and think that they are more likely to be dangerous. Because such a bias is not dependent on the race of the bias-holder, it would not be encompassed by the definition in the law.

The section on Race or sex stereotyping includes the notion that "privileges" cannot be ascribed to an individual because of their race or sex. This appears to apply to any notion of white privilege, male privilege, or similar concepts. If "Race or sex stereotyping" is prohibited, such a prohibition would prevent teaching or training that teaches people to recognize these types of privilege.

The law then addresses, "Specific defined concepts," which includes:

(1) That one race or sex is inherently superior to another race or sex.

(2) That the United States of America and the state of Iowa are fundamentally or systemically racist or sexist.

(3) That an individual, solely because of the individual's race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

(4) That an individual should be discriminated against or receive adverse treatment solely or partly because of the individual's race or sex.

(5) That members of one race or sex cannot and should not attempt to treat others without respect to race or sex.

(6) That an individual's moral character is necessarily determined by the individual's race or sex.

(7) That an individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.

(8) That any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of that individual's race or sex.

(9) That meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

(10) Any other form of race or sex scapegoating or any other form of race or sex stereotyping.

I haven't dug into the history of this bill or of the Trump Order on which it was based, so I am not sure where this list of defined concepts comes from. There is a bit of overlap with tenets of critical race theory (again, based on my limited knowledge and exposure of it), but this list is largely imprecise, all over the map, and prone to abuse.

To start, the terms "racist" and "sexist" aren't defined. It's therefore unclear whether those notions refer to conscious, intentional racism and sexism, unconscious bias, or disparate impacts of policies and practices that result from historic racism that is no longer as overt (or legally sanctioned) as it once was. For example, concept number 9--the notion that "meritocracy" is racist or sexist--could be implicated by training or teaching that points out that standardized tests tend to favor more privileged white people. While those who write these tests and use these tests in admissions practices likely aren't sitting down and saying "I can't wait to write/evaluate this test in a manner that disadvantages racial minorities!" the imprecise and undefined wording of the statute seems to go beyond this, and prohibit discussion of disparate impacts based on race or sex.

This causes problems for other concepts on the list, including number 2, which addresses fundamental and systemic racism of the United States and the state of Iowa. Perhaps those who hear charges of systemic racism think that critics are accusing most or all people in government of being intentionally biased against particular groups. But such explicit, biased actions are often hidden behind racially-coded proxies (e.g., heightening police presence in "high crime" areas; discussions of "inner cities," and many more examples). Systemic racism may also manifest through facially neutral laws or policies that end up having a disparate impact as a result of historic power structures and discrimination. All of this may be characterized as systemic racism, and all of this may be encompassed by this concept--which is a shame, because there is a great deal of truth behind these concerns.

Affirmative action may also be covered by this list to the extent that its opponents describe it as "reverse racism." If affirmative action is framed as taking away opportunities for, say, white people in favor of racial minorities, it can easily fall under concept number 4, which prohibits adverse treatment because of race or sex.

Number 8 is also particularly concerning: while it is limited to the concept that people "should" feel discomfort of guilt because of their race or sex, it will likely be implemented to prohibit the teaching of any concept that happens to cause such discomfort in members of the audience. The teaching itself may not demand that those in the audience feel discomfort or shame--it may instead call on them to view the world from a different perspective, recognize their privilege, and consider how their seemingly benign conduct may cause greater harm than they realize. Many people confronted with these notions will likely feel uncomfortable, though, which will likely lead them to accuse the teacher of asserting that they should feel uncomfortable. This concept may therefore be used to ban the teaching or training of any concept that happens to cause discomfort in certain audience members and creates a significant potential for abuse.

What Practices Does the Law Affect?

While the law devotes a lot of space to defining stereotyping, scapegoating, and specific concepts, the scope of the law appears, at first, to be limited. Section 25A.1 applies to training by and for members of governmental entities or agencies. It requires that the heads of those agencies:

ensure that any mandatory staff training provided by an employee of an agency, governmental entity, or governmental subdivision, or by a contractor hired by the agency, governmental entity, or governmental subdivision does not teach, advocate, encourage, promote, or act upon stereotyping, scapegoating, or prejudice toward others on the basis of demographic group membership or identity.

I have no idea what this means, primarily because it uses only portions of terms defined at length elsewhere in the law. This provision prohibits the teaching, advocating, encouraging, or promoting of "stereotyping" and "scapegoating." First, this does not explicitly prohibit the teaching of the "Specific defined concepts," nor does it even explicitly prohibit "Race or sex stereotyping" or "Race or sex scapegoating"--as it only uses the (undefined) terms, "stereotyping" and "scapegoating." Are those terms broader than the defined terms? Do they encompass the same behaviors, but with applicability to demographics beyond race and sex? It's unclear. Second, the broad "encouraging" and "promoting" terms may encompass a far broader set of behaviors than actually teaching the specific defined concepts or notions that fall under those defined Race or sex stereotyping/scapegoating. This blog post, for instance, by criticizing the definitions and breadth of the specific defined concepts, may be viewed as "encouraging" or "promoting" those concepts. These imprecise terms will likely result in overcautious behavior by those arranging for training, resulting in the unnecessary chilling of speech (for more background on the problem of vagueness in the First Amendment context, see here).

This section tries to save itself with a list of items it purports not to do, including preventing agencies and entities from promoting diversity and prohibiting a curriculum that teaches sexism, slavery, racial oppression and segregation, and related topics. But the failure to define the scope of what is prohibited and what is not prohibited leaves everything vague--are the restrictions supposed to be read broadly? Are the exceptions supposed to be read broadly? If there is an apparent conflict, which provision wins out?

These problems, which apply to training by and for members of governmental entities or agencies, apply to the law's restrictions on school districts as well. Section 279.74 includes the same vague language--prohibiting any curriculum or student training that "advocate[s], encourage[s], promote[s], or act[s] upon specific stereotyping and scapegoating toward others on the basis of demographic group membership or identity." Again, none of these terms are defined, and the broad "encourage" and "promote" language urges a broad reading that will result in restricted curricula. While the law does not explicitly say that teachers are prohibited from teaching the specific defined concepts, I'd be willing to bet that those who drafted the law would think that doing so would "encourage" or "promote" stereotyping or scapegoating.

The only restriction in the law that mentions the defined terms is the restriction on "each public institution of higher education," from allowing training that happens to "teach, advocate, act upon, or promote specific defined concepts." Why the section about higher educational institutions is the only one that explicitly mentions the "specific defined concepts" is unclear.

This law purports to take on "Critical Race Theory," a notion that the bill's proponents almost certainly do not understand. It takes an imprecise, scattershot approach at banning the teaching and training of various concepts. Through its use of broad notions of "encouraging" or "promoting" undefined notions of "stereotyping" and "scapegoating," the law will almost certainly chill a great deal of speech--including the teaching of facts and well-accepted concepts that happen to make certain audience members uncomfortable. I won't get into the law's constitutional implications and whether it would survive a challenge, as this post is long enough as it is, but it's a shame to see the passage of such a shortsighted and poorly written law.

READ MORE - Iowa's Law Targeting "Critical Race Theory"

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How Many Times Can a Complaint Be Amended?

This post aims to answer a simple question: what is the highest number of amendments to a complaint that has ever been allowed by a court in the United States?

A bit of background first. This post concerns civil litigation, where plaintiffs typically file a complaint setting forth various causes of action against defendants who have allegedly wronged them. These complaints are often amended. Sometimes plaintiffs add or remove parties. Plaintiffs may also add or remove causes of action or factual allegations in support of their causes of action. A defendant may move to dismiss a complaint, and if they succeed, the court may grant the plaintiff leave to file an amended complaint. Granting leave to amend at least once is common--unless a defendant has clearly demonstrated that a plaintiff's case is completely futile, a court will likely give the plaintiff another shot.

While many cases I've litigated have involved amended, second amended, or even fourth amended complaints, I was curious about the maximum number of amendments courts have allowed. A first amended complaint isn't too hard for a plaintiff to get. But when a court is confronted with a complaint that has been drafted and redrafted multiple times, the probability that the court will give a plaintiff yet another chance decreases.

From my exhaustive research (searching for "tenth amended complaint" and increasing the numbers until I could find no further results), it appears that the most amended complaint on record was amended twenty-two times.  The case is Mirarchi v. Boockvar, and it's a recent one--with the original complaint filed on January 12, 2021 in the US District Court for the Eastern District of Pennsylvania (case no. 5:21-CV-00126). A publicly-accessible link to the docket is here.

I've answered the question I set out to investigate, but I dug into the case itself, as I was curious about what would give rise to so many amendments. For those of you brave enough to dive into that nonsense, read on:

The original complaint can be viewed here. It's one of the numerous lawsuits filed in the wake of the 2020 presidential election that alleged the election had been stolen as a result of massive voter fraud. Mirarchi's allegations start off as readable, but quickly veer off on a tangent in which he claims that the total number of votes that Biden received was "interconnected" with "the Golden Ratio Squared, 2.61803399, and a Reconstruction Cost Value, 601118," which had allegedly been used against Mirarchi in a separate litigation matter involving building appraisal numbers (which appears to be this case). From there, things only get more complicated, as Mirarchi claims that calculations using these numbers end up equaling Biden's total number of votes, thereby revealing fraud.

For example, here's one of the paragraphs:

Here's another:

Mirarchi wraps up these mathematical allegations with a reference to widely and repeatedly discredited allegations by Sidney Powell which she now argues no reasonable person would believe as she tries to escape liability in a defamation suit filed by Dominion Voting Systems. Mirarchi's causes of action include election fraud, treason, RICO, and a 42 USC § 1983 claim for violation of his constitutional rights.

The circumstances behind the amendments to this complaint are unclear. For several weeks in January and February 2021, Mirarchi filed further amended versions of his complaint on a near-daily basis, culminating in a Twenty-First Amended Complaint that was filed on February 12, 2021. At that point the court ordered Mirarchi to combine his allegations into a Final Amended Complaint, after which no further amendments would be permitted. The Plaintiff filed that Final Amended Complaint (the twenty-second amended complaint, and the twenty-third iteration of the document) on March 3, 2021.

A motion to dismiss was filed by several of the county defendants on April 26, 2021. The Court has ordered other defendants to respond by May 26 and has granted leave for federal defendants to respond by July 16, 2021. Accordingly, it may be some time before we see whether a Twenty-Third Amended Complaint ends up getting filed.

READ MORE - How Many Times Can a Complaint Be Amended?

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Does the Constitution Prohibit DC Statehood?

With the Democratic party in control of the House and Senate, discussions have been picking up over whether the District of Columbia will be granted statehood.  Proponents argue that residents of the District, many of whom are African American, lack sufficient representation in Congress and the Senate, and point to the fact that DC's population is larger than Wyoming, which has a representative and two senators.  Critics argue that DC statehood is a political effort to increase the number of Democratic senators.  

Politically charged debates often prompt accusations of unconstitutionality by one side or the other, even if the Constitution truly has no say on the matter. Critics of DC statehood are advancing such arguments, exemplified by this article published yesterday by the Wall Street Journal's Editorial Page.

The WSJ Editorial Board's primary argument is that the Constitution mandates that DC remain a district that is not a state, and Democratic statehood proposals violate this provision of the Constitution:

Fashioning an independent seat of government in a federal system while affording representation to its residents is a dilemma dating to the founding. The Framers provided in the Constitution’s Article I that Congress could, “by cession of particular states,” control a small area in which the federal government would operate. In 1790 part of the territories of Virginia and Maryland, two of the 13 states that ratified the Constitution, were delineated for federal control.

Advocates of statehood brush aside the constitutional concerns and frame their cause as a simple question of democracy. It’s true that the roughly 700,000 residents of the District don’t have the ability to elect voting Members of Congress. Many hold influence over the federal government as employees and contractors or in other positions, and in the Founding era proximity to the seat of power was itself considered a form of representation.

 

Yet the natural remedy for the imperfect status quo, if representation is the real concern, would be for Congress to do something it has done before—return part of the District to the state that ceded it in the first place. That’s what happened in 1846 when Congress reinstated Virginia’s control over the D.C. suburbs of Arlington and Alexandria.

 . . .

There could be constitutional challenges to retrocession to Maryland. But the creation of an independent state to supplant the District, as the current House legislation proposes, is certainly unconstitutional. The Founders deliberately created a federal district under the control of Congress because it didn’t want the federal government to be subject to the sway of any one state. Statehood imposed by statute would strip Congress of one of its enumerated powers—effectively amending the Constitution without an amendment process.

Others advance similar claims that the Constitution "mandated" creation of the District of Columbia. They all appear to be citing Article I, Section 8, Clause 17 of the Constitution, which provides that:

The Congress shall have the power . . . [t]o exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings

First, these arguments do not appear to have any force against what Democrats are proposing. Democrats are not advocating the complete elimination of the District described in the Constitution. Instead, they are proposing that the District be limited to a much smaller area, with the rest of DC becoming a separate state. The Constitution does mandate a particular location or size (beyond a maximum size) for the District, and shrinking the District is therefore consistent with this constitutional provision.

But critics' arguments run into an even more fundamental problem--they are based on an assumption that the Constitution mandates the creation of the District of Columbia. This is not apparent from the language of Article I, which grants a power to Congress to exercise exclusive legislation over whatever District "as may" become the seat of the United States' government. This isn't to say that creating such a District isn't a good idea, as certain founders recognized. But permitting Congress to exercise a particular power is a far cry from mandating that Congress do so.

I suspect that this reading of Article I is inconsistent with most of these same critics' approach to other provisions of Article I, like Congress's power to regulate commerce. Conservatives have long opposed extensive application of Article I's Commerce Clause to federal legislation governing sales transactions that take place within a single state. In opposing broad application of the commerce clause, they argue that the founders sought to create a limited federal government, and that Article I should be interpreted as providing a limited set of powers that Congress may exercise. This constrained reading of Congress's power is undermined by the more aggressive reading in the District of Columbia Context--the assertion that Congress must create a District to serve as the seat of the federal government.

Critics of DC statehood may also contend that the founders never intended for Washington D.C. to be a state, as Senator Mike Rounds did earlier in March:

The Founding Fathers never intended for Washington D.C. to be a state.#DCStatehood is really about packing the Senate with Democrats in order to pass a left-wing agenda.

Just look at the DC voter registration data:
🔵 76.4% Democrat
🔴 5.7% Republican

— Senator Mike Rounds (@SenatorRounds) March 22, 2021

Responses to this particular tweet have been largely cheeky--noting that Senator Rounds represents South Dakota, which was not a state at the time of the founding. These responses miss the point.

The response, instead, should be that based on what the Constitution says, it appears that there was an expectation that there would be a District, but whether that district would be DC, or whether it could ever change in size or location (other than remaining below 10 square miles) appears to be an open question. 

Moreover, proponents of originalist methodology should scold Senator Rounds for his shoddy attempt at engaging in originalist analysis. Virtually all originalist scholars will tell you that modern originalism focuses on the original public meaning of constitutional provisions--not on the intentions of the founders. When left-wing commentators refer to the original intent of the founders in criticizing originalism, they are met with a flurry of indignant responses from academic originalists. I haven't seen a similar set of responses to Senator Rounds' tweet though. Perhaps I missed them.

In the end, DC statehood is a political debate. Critics and proponents of statehood may try bringing the Constitution into the picture, but these efforts are misguided do nothing more than muddy the waters.

EDIT - APRIL 22, 2021

I have left out a discussion of whether DC statehood violates the 23rd Amendment, a secondary argument that the WSJ advances and that others focus on in more detail elsewhere. While I avoided discussion of the 23rd Amendment issue to save space, it is not apparent that DC statehood would violate the amendment, which grants DC electors in the electoral college. While the size of the district may be reduced, this would not undermine the appointment of electors. And DC statehood is certainly not inconsistent with the spirit of the 23rd Amendment, which is to grant political representation to those in the District--statehood would permit residents to have not only representation in executive elections, but in the legislature as well. If statehood passes and the three electoral votes for the shrunken district remain a widespread concern, the 23rd Amendment may be repealed should it be deemed no longer necessary.

READ MORE - Does the Constitution Prohibit DC Statehood?

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Has President Trump Already Pardoned Roger Stone?

There are a lot of people out there who generally express reasonable opinions and seem normal, but who nevertheless are willing to entertain the odd outlandish belief. You may get through your workday without incident while believing that the world is flat, that we are living in a computer simulation, or that the spelling of "The Berenstain Bears" is evidence of a parallel universe. Indeed, you may believe all of these things and still get along just fine with your friends and coworkers.

I'm not here to judge you. Instead, desperate for distraction from quarantine and curfews, I've cooked up my own wild theory--a theory that I may have fooled myself into believing is true. Maybe I'm right. Or maybe I've just been stuck inside for too long.

News outlets have reported for some time, with renewed interest today, that President Trump may be about to pardon Roger Stone, who was sentenced to three years in prison back in February after being convicted of lying to authorities, obstructing a congressional investigation, and witness intimidation. My wild theory is that Stone has already been pardoned as a result of Trump's tweets.

From Politico, earlier today:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe. 

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer. 

“This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!” 

Trump went on to share the tweet Thursday morning, writing in his own accompanying message: “No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night!”

Here is the tweet:

No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night! https://t.co/HHg24tcZrx

— Donald J. Trump (@realDonaldTrump) June 4, 2020

This is not the first time Trump has tweeted something like this. Kirk wrote a similar tweet criticizing Stone's conviction back in April, which also prompted a response from Trump:

This is a disgraceful situation! https://t.co/s2qZSrGw6U

— Donald J. Trump (@realDonaldTrump) April 18, 2020

Politico and other outlets are reporting that Trump's tweet today appears to be a promise by Trump to pardon Roger Stone, as his suggestion that Stone "can sleep well at night" strongly suggests that Stone will not end up spending the night in prison (because he will be pardoned).

I'll go a step further and suggest that there's an argument to be made that this tweet itself (and his April tweet) constitute a pardon of Roger Stone. 



The Argument

Trump's tweet is a quote-retweet of Charlie Kirk, an outspoken commentator whose shtick is to appear down with the youths and whose tweets are frequently hyperbolic, misleading, or false. In addition to Kirk's false claim that Stone was sentenced to prison simply because he supports Trump, Kirk's tweet includes this key, final sentence: "RT for a full pardon of Roger Stone!"

For those who are unfamiliar with Twitter, first let me say good for you! Here's some background: the last sentence in Kirk's tweet is a request for retweets (RTs). Twitter users can hit a "retweet" button that appears below another user's post ("tweet") that shares that tweet with the retweeting user's followers. The typical goal behind retweeting something is that it results in the original tweet being shared with a larger audience. Users have the option of simply retweeting, which shares the tweet (with a little note that the user retweeted it) with that user's followers, or quote-retweeting, where they share the original tweet, plus their own commentary, with their followers. That is what Trump did here.

For members of the general public on Twitter, the statement "RT for a full pardon of Roger Stone!" is similar to a petition, as retweets symbolize agreement with Kirk's sentiment. If I thought that Roger Stone should receive a full pardon, I could retweet Kirk, both to spread the word, and to express my agreement with Kirk. While there are some users who occasionally claim that "retweets are not endorsements," this is generally unconvincing--particularly as users now have the option to make critical quote-retweets of statements with which they disagree. In any event, Trump has no such caveat in his account description.

For nearly all Twitter users, retweeting or quote-retweeting has the effect of spreading the message, expressing agreement, or--in the case of certain quote retweets--expressing criticism. But for the president, retweeting Kirk's particular message may have an additional effect--as he, and only he, has the power to issue the pardon. Kirk's tweet is worded without qualifications--rather than saying "RT if you think Stone should be pardoned!" it asks other users to retweet "for a full pardon."

Indeed, the specific wording of the tweet suggests that it may be aimed at Trump in particular. Stone may argue that if Trump retweets, he is not expressing mere agreement or stating his opinion--he taking an action that, given the context of the original tweet, constitutes a full pardon of Stone.

An analogy would be that Kirk is standing in public, holding out a pardon of Stone for everyone to sign. I could sign it. My friend Max could sign it. This would have no legal effect. Our signing the document could be taken as an expression of agreement that Stone should be pardoned--albeit in a somewhat awkward way. But if Trump happens to sign the pardon, then the legal effect of doing so is that Stone is pardoned. That, Stone can argue, is precisely what Trump has done here. Kirk's tweet indicated that a retweet could constitute a full pardon, Trump retweeted, and the pardon has been effectuated.

Can The President Pardon Someone Via Tweet?

The presidential pardon power is almost entirely a matter of presidential discretion. While the Constitution limits the president from exercising the pardon power in cases of impeachment, it does not set forth specific procedures or requirements that the president must follow when issuing the pardon. And although there are regulations in place governing the procedure for submitting a petition for clemency (see 28 C.F.R. § 1.1, et seq.), these regulations are advisory and do not restrict the president's authority. 28 C.F.R § 1.11.

Some background on the historic exercise of the pardon power is here. And commentary on Trump's particular pardon practices is here.

News outlets and commentators have emphasized the lack of constraints on the pardon power in light of President Trump's use of pardons on political allies. Following the pardon of Joe Arpaio, the BBC speculated that Trump could pardon someone via tweet--suggesting that signing his name at the end of the tweet would be the equivalent to a signature on a pardon. That article cites to this 1929 memorandum by Acting Solicitor General Alfred A. Wheat to the Attorney General, which notes that the Constitution does not prescribe how the president should exercise the clemency power and that it is "wholly a matter for the president to decide, as a practical question of administrative power." Wheat goes on to suggest that the pardoned person should at least have "some token to show that he has been pardoned," such a token need not bear the president's signature. While Wheat cites an 1893 executive order that requires pardons to be countersigned by the Attorney General, the scope of that order is limited to warrants of pardons and commutations "heretofore prepared at the Department of State on the requisition of the Attorney General," and would not apply to a pardon tweet.

As the BBC notes, Wheat could not have contemplated something like Twitter when he wrote his 1929 memo. But the general points Wheat sets forth in his memo confirm the breadth of the president's pardon power, and several of his statements are applicable to Trump's present day practices.

In light of the president's broad pardon power, there is a strong argument that Trump could pardon someone by tweet. The tweet itself could be the "token" showing that a person has been pardoned, and the fact that it comes from Trump's verified account can be treated as the equivalent of a signature. There are responses to both of these arguments--particularly, there may be a factual question as to whether Trump himself wrote the tweet. But courts would likely refuse to second guess a purported pardon-by-tweet, as lack of constitutional and legal procedural requirements would constitute a political question. For more on court's unwillingness to second-guess pardons, see the discussion at the end of this prior post.

Counterarguments

There are many arguments that Trump has not pardoned Stone with his tweet. Some are stronger than others, but all of them have some issues.

One response would be to run with the petition analogy that I used above. Kirk's tweet served no purpose other than a forum in which people could express their agreement that Stone should be pardoned. Trump's quote-retweet was therefore akin to signing a petition that Stone be pardoned rather than signing the pardon itself. This is how media outlets have interpreted the tweet, treating it not as a pardon, but a strong suggestion of an impending pardon.

The absolute nature of Kirk's original tweet undermines this interpretation. Moreover, Trump has previously tweeted suggestions that he will pardon somebody. He did so in mid-March with former national security adviser, Michael Flynn, stating "I am strongly considering a Full Pardon!" Unlike the Roger Stone tweet, that prior tweet was not made in response to a tweet asking for users to "retweet for a full pardon." And the Flynn tweet was qualified with language that Trump was "strongly considering" the pardon. There is no such qualifying language in the present tweet.

Alternatively, one could argue that Trump's quote-retweet of Kirk's original tweet is not an outright retweet, so Trump has not technically "retweeted" Kirk. This argument is weak. Quote-retweeting, as the name suggest, constitutes a retweet with the addition of a comment. Rather than not being a retweet, it is a retweet, plus something else. Sometimes, a tweet may appear to be a quote-retweet because a user has linked to a tweet, rather than quote-retweeting it. But there is no link in the tweet suggesting that Trump copied and pasted the tweet at the end of his comment.

Another argument against the tweet being treated as a pardon is that it is, instead a refusal to pardon Stone, as it begins with "No." A narrow reading suggests that this contradicts the message of the quoted tweet. But this reading is not plausible. An uncomplicated contradiction would be a situation where Trump retweeted Kirk with a comment like, "Stone is a good friend, but his trial was fair and I will not upset the court's ruling." Here, Trump's simple statement of "No," in the context of his full comment, which criticizes Stone's sentence, is much more plausibly read as a reaction to Kirk's statement in the original tweet that "This isn't justice."

A stronger argument against the pardon interpretation is that Trump tweeted this from his personal account. Since he did not use the official presidential twitter account, this is simply Trump expressing his own opinion rather than taking official action. But the personal/official distinction is troublesome as well--particularly in light of case law regarding lawsuits by Twitter users who were blocked by Trump's personal account. Most recently, an en banc Second Circuit refused to review the Second Circuit's ruling that Trump's account "bear[s] all the trappings of an official, state-run account" and that the account is "one of the White House's main vehicles for conducting official business." And, as noted above, Trump's statement and its context was not couched in terms of opinion and contained no qualifiers as to whether Trump was "considering" pardoning Stone.

I have also seen arguments that Trump is prohibited from pardoning Stone, since doing so would be a pardon in a case of impeachment, which the Constitution prohibits. Those arguments are beyond the scope of this post, and do not alter the analysis on whether Trump has pardoned Stone through his retweets.

The sheer number of counterarguments, and the unusual nature of a pardon-by-retweet, appear to be enough to give pause to Stone and commentators from arguing that Trump has already issued a pardon. But if Trump's presidency and 2020 thus far are to be any guide, what may seem outlandish one day may be routine the next.

Conclusion

I don't expect anything to come of Trump's recent Stone tweet, since he tweeted essentially the same thing in April and Stone did not claim that he had been pardoned. I would be surprised to see Stone make such an argument now, as Trump has repeatedly expressed a desire to pardon him. If Stone were to start arguing the aggressive interpretation of Trump's tweets that I set forth above, this could jump the gun on what appears to be an inevitable pardon.

If Trump indeed goes ahead and pardons Stone, the discussion above will be moot for his case. But this phenomenon shouldn't be ignored--as Trump is pretty quick to retweet particular commentators on certain subjects. Charlie Kirk, and others like him, will likely tweet similar statements in the future, and this question will likely come up again. At the very least, the pardon argument and the counterarguments shed light on the flexibility of the pardon power and its application, and how the intricacies of technology relate to the pardon power and presidential actions more generally.

READ MORE - Has President Trump Already Pardoned Roger Stone?

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Connecticut Legislature to Consider Ban on "Distracted Walking"

The Hartford Courant reports on a "Distracted Walking" law that is making its way through Connecticut's legislature. From the report:

The General Assembly’s transportation committee was voting Wednesday on a bill that would make it a fineable offense to cross the street while looking at your cellphone.

“This is really about trying to protect the person who should be aware when they’re putting themselves in front of a two or three ton vehicle barreling at them … if they’re not paying attention they will lose that battle,” said Sen. Carlo Leone, D-Stamford and co-chair of the committee.

Rep. Roland Lemar, D-New Haven and the committee’s other co-chair, said he started out opposing the bill, reasoning that walkers “present the least danger” in terms of causing traffic accidents.

“As I heard from more and more people, this is a shared responsibility that we have,” he said. “We do have things like distracted driving, so distracted walking is a reasonable standard that we should establish.”

The bill is S.B. No. 825 and can be found here. The bill is of note because it is, to my knowledge, the first state-level legislation that would restrict the use of electronic devices while walking across streets. A few towns have passed restrictions like this, but I am not aware of any states that have done so.

From the text of the bill:

Section 1. (NEW) (Effective October 1, 2019) (a) For the purposes of this section, "mobile electronic device" means any hand-held or other portable electronic equipment capable of providing data communication between two or more persons, including, but not limited to, a mobile telephone, a text messaging device, a paging device, a personal digital assistant, a laptop computer, equipment that is capable of playing a video game or a digital video disk, or equipment on which digital photographs are taken or transmitted, or any combination thereof, and "viewing" means looking in the direction of the screen of a mobile electronic device.

(b) Except as provided in subsection (c) of this section, no pedestrian shall cross a highway while viewing a mobile electronic device.

(c) The provisions of subsection (b) of this section shall not apply to (1) the use of a mobile electronic device for the sole purpose of communicating with any of the following regarding an emergency situation: An emergency response operator, a hospital, physician's office or health clinic, an ambulance company, a fire department or a police department, or (2) any of the following persons while in the performance of their official duties and within the scope of their employment: A peace officer or firefighter, as those terms are defined in section 53a-3 of the general statutes, or any emergency medical responder, emergency medical technician or paramedic, as those terms are defined in section 19a-175 of the general statutes.

(d) Any person who violates the provisions of this section shall, for a first violation, receive a warning and, for any subsequent violation, be fined twenty dollars.

This restriction is narrower than Honolulu's ban (examined in painstaking detail here). Connecticut's proposed restriction applies to a smaller range of devices, as it includes the important qualification that a "mobile electronic device" affected by the bill must be capable of providing data communication between two or more persons. Honolulu's ban, on the other hand, applied to devices that either provided for communications between two or more people OR were capable of "providing amusement." This means that even if someone is fiddling with an iPod while crossing the street, they will not violate this law, provided that their iPod is a model that cannot send messages or texts to other people. Of course, it seems that no one (including me, for the most part) listens to music on anything other than their phones while walking anymore, but now there may be a reason to dust off the old devices.

Unlike Montclair, California's terribly-drafted ban, the Connecticut bill only applies to instances where pedestrians are "viewing" the device, which the bill defines as "looking in the direction of the screen of a mobile electronic device." Honolulu uses a similar definition. This is narrower than Montclair's ban, which also applies to listening to devices with headphones.

As I've noted before, I generally oppose restrictions like this. Bills that prohibit common practices like this are likely to be unequally enforced in light of widespread violations will occur, and enforcement will be left up to the discretion of law enforcement officers. Broad grants of discretion like this are likely to disproportionately impact racial minorities, the poor, and others who officers believe are "suspicious." While this bill isn't as broad as Montclair's ban, it is still more than is necessary. And, as I've also noted before, while proponents of the bill may argue that its twenty-dollar fine is low, this amount is still burdensome to some and it can add up for those who are repeatedly cited -- a likely occurrence for a prohibition on common activity.

And as for Rep. Roland Lemar's change of heart on the bill in light of restrictions on distracted driving, this ignores the fact that pedestrians are not the ones who are likely to cause harm to others if they are walking while distracted. Distracted driving rules make sense, as vehicles can cause significant injury or death if their drivers aren't paying attention. As for people who are walking, they may well end up injured if they are walking while distracted, but they are not going to injure others like distracted drivers. That Lemar cannot recognize this distinction is unsettling.

As for the status of the bill, on March 20, 2019, the Transportation Committee voted in favor of the bill, and as of today, the bill has been submitted to the Legislative Commissioner's Office. From there, it may be voted on by the legislature or it may proceed to a different committee (at least, that's what I've been able to grasp from this cheat sheet on Connecticut legislative procedure). Hopefully the bill will be referred to another committee to die, or the legislature will vote against it, as it is an unnecessary restriction that may prompt other states and towns to follow suit.

READ MORE - Connecticut Legislature to Consider Ban on "Distracted Walking"

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Iowa Senate Bill Would Require State Supreme Court Supermajority to Find Laws Unconstitutional

The Des Moines Register reports:

The Iowa Senate narrowly approved a controversial bill Tuesday that says no state law can be held unconstitutional by an Iowa court without the concurrence of at least five justices of the seven-member Iowa Supreme Court. 

Senate File 2282 was approved on a 26-24 vote, sending it to the Iowa House, where it faces an uncertain future. All the votes in favor were cast by Republicans, while the opposing votes came from 20 Democrats, one independent and three Republicans.

Here's the text of the bill:

Pursuant to the provisions of Article V, section 4 of the Constitution of the State of Iowa, the general assembly declares that no statute shall be held unconstitutional by a court of this state except by the concurrence of at least five justices of the supreme court of Iowa.

The Iowa Supreme Court is made up of seven justices, meaning that this bill would require a supermajority of justices to hold that a state law is unconstitutional. Additionally, the bill applies to statutes being held unconstitutional by "a court of this state," meaning that a statute cannot be deemed unconstitutional unless it is ultimately appealed to the Iowa Supreme Court where at least five justices agree that the law is unconstitutional.

This structure of the bill makes some sense, as it avoids the scenario where the Iowa Court of Appeals holds that a law is unconstitutional, and then becomes precedent because it is not appealed to the State Supreme Court. At the same time, the bill would have a strange effect on the status of Court of Appeals' opinions that are not taken up by the State Supreme Court -- as opinions finding state laws unconstitutional that are not reviewed by the Supreme Court would appear to run afoul of the law and therefore be invalid.

Democrats in the Republican-controlled state senate have spoken out against the law, arguing that it seizes power away from the Supreme Court. Republicans agree -- arguing that the courts should not have the power to overturn laws without this additional requirement. For some truly dense commentary, look no further than Senator Jason Schultz:

Sen. Jason Schultz, R-Schleswig, thanked [Senator Julian] Garrett for advancing the bill, saying it's a measure needed in this day and age. 

"Ladies and gentleman, this bill acknowledges that the Constitution is a contract; that the words do not change. What this bill does is say that we are not going to simply have a popularity contest on the constitutionality of a law," Schultz said.

While it isn't really related to the substantive issues, I'm going to break down Schultz's comment, as it demonstrates a stunning failure to grasp what the Senate is doing and how the the Court works. First, Schultz's assertion that the Constitution is a contract is not correct, as the Constitution is a set of rules that govern the basic functions of state government, and also sets forth individual rights that may be used to strike down laws. It's a set of rules that was enacted by popular vote -- not a contract.  Second, even if the Constitution is a contract, it's unclear how the law acknowledges this. Third, the words of the Constitution do change -- the Constitution can be amended.  Fourth, the bill does effectively say there will be a popularity contest on the constitutionality of law in that five, rather than four, justices can still hold a law unconstitutional. The law just has to be "more unpopular" if we are to adopt Schultz's misleading phrasing.

While I don't approve of the law, as it raises some unpleasant memories of woefully misguided backlash against the Court back in 2010, I don't agree with Democratic lawmakers who claim that the bill is unconstitutional. From the Register:

Sen. Matt McCoy, D-Des Moines, said he was troubled by the partisanship that had appeared to develop over the bill, as well as what he described as "the contempt that this Legislature has towards the courts." 

"I have news for you," McCoy said. "This is not going to be constitutional, and Iowans are going to be angry again at this effort to bring partisanship into this process. Make no mistake about it: This is about partisan politics. When the Legislature doesn't get its way, it punishes the courts."

While the bill certainly has an impact on the separation of powers, and while it certainly appears to be a partisan ploy, McCoy is not correct to imply that the bill violates the Iowa Constitution. Article V, Section Four of the Iowa Constitution states that the Iowa Supreme Court shall "constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe." (emphasis added). This section indicates that the general assembly can place restrictions on the court's jurisdiction. This constitutional grant of power to the legislature is reaffirmed by Article V, Section 14, which states that the general assembly has the duty to "provide for a general system of practice in all the courts of this state," meaning that the legislature is charged with making court rules and enacting procedures.

Senate File 2282 would place a limit on the Iowa Supreme Court's ability to hold laws unconstitutional. It is a clear attempt by the legislature (which is now entirely controlled by Republicans) to limit the power of the Court. This attempt smacks of partisan politics, as Iowa conservatives likely still see the Court as a liberal institution following its 2009 decision in Varnum v. Brien striking down the state's law restricting marriage to opposite-sex couples. It's unfortunate to see such partisan fiddling with the mechanics of the legal system and I hope (though I am not optimistic) that the bill will fail in the Iowa House.

READ MORE - Iowa Senate Bill Would Require State Supreme Court Supermajority to Find Laws Unconstitutional

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The Second Amendment and Legislative "Protection" of Constitutional Rights

This column in yesterday's Des Moines Register by the Editorial Board caught my eye. It begins:

Is state Rep. Chip Baltimore clairvoyant?

The Boone Republican was arrested last week, charged with operating a motor vehicle while intoxicated and possession of a firearm while under the influence of alcohol. Interestingly, less than 10 months ago, he voted to support legislation reducing penalties for toting a gun while drunk. Lucky for him, that bill was signed into law.

According to a police report, Baltimore was stopped by an Ames officer early Friday morning after authorities received reports of a reckless driver traveling northbound on Interstate Highway 35. With his slurred speech and bloodshot eyes, he told the officer he was on his way home after attending meetings in Des Moines, the report said.

. . .  

Last legislative session, Baltimore was among the lawmakers who supported the Iowa Omnibus Gun Law.

Before this law went into effect, carrying a firearm while intoxicated was an aggravated misdemeanor, punishable by up to two years in prison. An OWI conviction provided clear grounds for revocation of a permit to carry a weapon.

The new law, which went into effect July 1, cuts in half potential jail time and allows drunken drivers the ability to keep their permits to carry handguns.

At the time, one Iowa sheriff questioned the change, baffled that state legislators recognized the danger of operating a vehicle while drunk but not carrying a lethal weapon while intoxicated.


“We know alcohol blurs judgment,” said Black Hawk County Sheriff Tony Thompson. “I’m not sure what the driving force was behind watering that down.”

The Register's earlier article reporting Baltimore's arrest is here. Notably, Baltimore was stopped when an officer observed him driving at 55 mph in a 70 mph zone entering a 65 mph zone. For those interested in DUI-related trivia (who isn't?), the National Highway Traffic Safety Administration states that driving at 10 miles or more below the speed limit is an indicator of possible impaired driving. The same is not true of speeding.

 

This story is my quirky introduction for a much broader discussion of misleading rhetoric regarding the "protection" of constitutional rights through legislation. For those only interested in the adventures and apparent foresight of Chip Baltimore (and accompanying DUI trivia), stop reading now!

The Omnibus Gun Law referenced in the column was lauded by advocates upon its passage as a victory for Iowans' Second Amendment rights. The Washington Post reported on the passage of the bill back in April 2017:

Branstad, the long-serving Republican governor selected by President Trump to be ambassador to China, signed a bill that many say is the most comprehensive and broadest piece of legislation on gun rights the state has ever seen. House File 517 will, among other things, allow citizens to use deadly force if they believe their lives are threatened; it will also allow them to sue local government officials if they think gun-free zones have violated their Second Amendment rights.

The signing of House File 517 last week marks the end of a decades-long battle for a bill that does more than make incremental changes to the state’s gun laws and will bring Iowa in line with its more gun-friendly neighbors such as Missouri and Wisconsin, said Barry Snell, president of the Iowa Firearms Coalition, an advocacy group affiliated with the National Rifle Association.

“Without exaggeration, House File 517 is the most monumental and sweeping piece of gun legislation in Iowa’s history,” Snell told The Washington Post. “Never before have we passed a bill in which Iowa’s Second Amendment rights are legally recognized, claimed and protected quite so profoundly as this bill does.”

Snell's statement expresses a familiar sentiment, but also reveals a common misconception about how constitutional rights function in relation to laws passed by legislatures. State laws are not needed to recognize or protect constitutional rights. If a law restricts the right to bear arms so much that it violates the Second Amendment, those who are burdened or injured by the law may challenge it and the courts will strike down the law if it is unconstitutional. The scope of the Amendment is a matter of constitutional law that is ultimately determined by the United States Supreme Court -- not by legislatures.

 

While I'm not surprised to see this sort of misleading rhetoric used by the head of an advocacy group, the article quoted Professor Randy Barnett who blogs at the excellent Volokh Conspiracy, who made an unfortunately similar point:

The legislation might make Iowa “the leading edge of protecting the civil right” to bear arms, said Randy Barnett, a law professor at Georgetown University.

“When you have a constitutional right, it often requires the legislation to protect that right,” Barnett said. “That’s what Iowa is doing.”

Of course, states may use legislation or amend their own constitutions to reduce government's ability to restrict gun possession use. For example, Louisiana amended its state constitution to state that any law restricting the right to bear arms is subject to strict scrutiny review in the courts -- a standard that is likely higher than the (admittedly unclear) approach required by the Second Amendment to the United States Constitution. But the action of legislatures is not required to protect constitutional rights -- rather, it is the purpose of judicial review is to place protection of these rights in the hands of the courts.

I've expressed approval for certain state laws or constitutional provisions that effectively expand the scope of federal constitutional rights. Laws that do this in the Fourth Amendment context restricting unreasonable searches and seizures, for example, are a good idea -- particularly when it comes to developing technology like drones. Courts, particularly the United States Supreme Court, may be slow to react to rapid changes and the complexities of new technologies, and the legislature -- if properly informed -- can impose restrictions on law enforcement that fill in holes in the doctrine. Of course, I would not say that these laws are necessary to protect the Fourth Amendment. At most, I'd say that these laws protect people from intrusion by the government in instances where the Fourth Amendment may not apply, or may not clearly apply, and therefore are consistent with the spirit of the Fourth Amendment.

Barnett would likely argue that the courts cannot protect all violations of constitutional rights. People may lack the resources, time, or will to pursue a constitutional challenge, and laws may prevent circumstances from arising that give rise to the violation of rights in the first place. This is evident in the Fourth Amendment context, where unlawful searches and seizures are likely conducted hundreds, or even thousands, of times per day. So on a practical level, legislative restrictions may ultimately result in fewer infringements of people's Fourth Amendment rights.

But this argument does not cleanly translate to the Second Amendment context. The Fourth Amendment has been the subject of numerous Supreme Court opinions that have fleshed out a complex doctrine of protections, exceptions, and consequences of Fourth Amendment violations. But the Supreme Court has refused to return to the Second Amendment after its opinions in Heller and McDonald, opting to deny certiorari in some tantalizing cases and leave the development of Second Amendment doctrine to the lower courts. In the absence of continued Supreme Court attention, the ultimate scope of Second Amendment protection remains unclear and inconsistent across different circuits. To claim that Second Amendment rights are frequently violated and that these violations are not addressed by the courts is therefore a far less certain proposition than a similar claim regarding the violation of Fourth Amendment rights.

When politicians and academics say that laws are necessary to protect and preserve the Second Amendment, they are, at best, speaking imprecisely and, at worst, being misleading. Instead, these advocates are assuming that the unclear Second Amendment right provides certain protections and asserting that these protections be enshrined in the law in order to uphold the right. A lack of clarity and a failure of the Supreme Court to set clear standards or to revisit the Second Amendment are translated into a claimed need for legislative action -- and laws purporting to "protect" the right are born as a result.

The courts will protect rights, striking down overly restrictive laws if need be. Whether the rights are broad or narrow is for the Supreme Court to decide. Legislatures, in turn, may opine as to the spirit of constitutional rights and pass laws that provide additional protections that are consistent with the spirit of the rights. In the case of the Second Amendment, the Iowa legislature apparently believes that the spirit of the Second Amendment protects people from severe criminal penalties should they be carrying a firearm while drunk. And if the rhetoric of Snell and Professor Barnett is to be taken seriously, this is apparently what the United States Constitution envisions as well.

If lawmakers believe that respecting and protecting the Second Amendment requires legislation that decreases the penalties against those who carry firearms while intoxicated, then it's the legislature's prerogative to enact such legislation. All I can say at this point is kudos to Representative Baltimore for his foresight in supporting this legislation, and to implore advocates like Snell and Barnett to think about the legislature's role in relation to the Second Amendment before making overly broad claims.

READ MORE - The Second Amendment and Legislative "Protection" of Constitutional Rights

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Don't Operate Drones While Drunk in New Jersey, and Other Crimes

Through this angrily-titled Reason article, "Good Riddance to Chris Christie," I learned about a recent law in New Jersey that creates several new drone-related crimes. The text of S3370, which Governor Christie signed into law on Monday, is available here.

The bill creates several new drone-related crimes. One of the more widely-reported restrictions is a ban on the operation of drones while under the influence of alcohol, narcotics, hallucinogens, "habit-producing" drugs, or with a blood alcohol level of 0.08% or more. This restriction has led to the publication of several articles that whimsically announce the restriction on "drunk droning" or "drinking and droning." I'm not sure if I'm ready to approve of these publications use of "drone" as a verb, as operating drones does not necessarily involve speaking at length in a boring manner, but the restriction is worth noting.

It's also worth mentioning that federal regulations already place even stricter alcohol-related restrictions on the commercial operation of drones. This concise explainer by Jonathan Rupprecht points out that commercial drone operators can't fly drones within eight hours of consuming alcohol or with a blood alcohol concentration of 0.04% or higher. Rupprecht also notes that hobbyist drone users that operate drones while intoxicated may run afoul of federal regulations if their activity is deemed to "threaten the safety of the national airspace system."

New Jersey bans more than the drunken operation of drones. The law also includes provisions prohibiting people from using drones while hunting, and from using drones to prevent people from hunting. The law also bans the operation of drones in "a manner that endangers the life or property of another," and prohibits people from using drones from conducting surveillance on correctional facilities or "endanger[ing] the safety or security" of these facilities by operating drones on their premises.

But wait, there's more!

The law creates an offense for drone users whose drones interfere with "first responders," (which include law enforcement officers, firefighter, ambulance operators, and others). California has attempted to pass similar legislation that would criminalize operating drones near fires, as this activity has reportedly hindered firefighting efforts. But these crimes have yet to become law in California due to Governor Jerry Brown's reluctance to expand California's bloated Penal Code. Governor Christie, however, appears to have no such qualms.

A final provision of note is a revision to the law governing the penalty of "parole supervision for life" that is imposed on certain sex offenders and those convicted of kidnapping pursuant to N.J.S.A. C.2C:43-6.4. The provision states that the parole supervision for life "may include reasonable conditions prohibiting or restricting the person's operation of an unmanned aircraft system in order to reduce the likelihood of a recurrence of criminal or delinquent behavior." While drones can (and occasionally have) been used to hover creepily outside of people's windows, this is a strangely specific provision to add to the various restrictions that sex offenders face.

I'm generally opposed to imposing restrictions on private drone users, as tortious or invasive behavior with drones could probably be prosecuted or litigated under more general existing laws. I do approve of legislative restrictions on government drone use, but New Jersey appears to have yet to impose such restrictions. The last attempt at doing so failed a year ago when Governor Christie failed to sign off on a bill that would have imposed a warrant restriction (with certain exceptions) on drone use by law enforcement agencies. Perhaps Governor Phil Murphy will act differently should a similar bill make its way through the legislature in the future.

READ MORE - Don't Operate Drones While Drunk in New Jersey, and Other Crimes

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Bacongate: Did Senator Leahy Read My Confirmation Hearing Outline for Justice Willett?

Business Insider reports on a ridiculous exchange between Senator Patrick Leahy (D-VT), and Fifth Circuit Court of Appeals Judicial Nominee, Texas Supreme Court Justice Don Willett, a video of which is below:



Back when Justice Willet was being considered as a potential Supreme Court nominee, I wrote this post highlighting questions that could be asked at Willett's confirmation hearing based on his prior tweets. From that post, here is one of my potential questions (and the accompanying tweet):

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6

— Justice Don Willett (@JusticeWillett) April 30, 2015

In a fascinating display of either: (1) failing to understand simple humor; or (2) extreme partisan interpretation, Leahy lambasted Willet's tweet as an attack on gay marriage and the Supreme Court's decision legalizing gay marriage. From Business Insider:

"I don't think one would see that as praising the Supreme Court decisions," Leahy said of the tweet.

While I am happy that I was able to predict at least one of the tweets that would come up in Willett's confirmation hearing, Leahy taking the tweet in this direction made a farce of his line of questioning. Senators with concerns about Willett taking conservative stances on legal issues certainly have plenty to work with, but this exchange is just (to use some legal terminology) goofy.

All of this aside, I will assume without evidence that Senator Leahy got the idea to ask about that tweet by reading my blog, and I thank the good Senator for his attention to my work.

READ MORE - Bacongate: Did Senator Leahy Read My Confirmation Hearing Outline for Justice Willett?

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Court Denies Sheriff Joe Arpaio's Request to Vacate All Orders and Dismiss Case Following Pardon

NPR reports:

U.S. District Judge Susan Ritchie Bolton says that President Trump's pardon of former Maricopa County Sheriff Joe Arpaio does not "revise the historical facts" of his case — and that she will not vacate her ruling that found Arpaio guilty of criminal contempt.

On Thursday, Bolton quoted Black's Law Dictionary to say that a pardon "releases the wrongdoer from punishment and restores the offender's civil rights without qualification." But she then added a further interpretation in her own words: "It does not erase a judgment of conviction, or its underlying legal and factual findings."

The NPR story contains a copy of the Order, but a complete copy of the Order can be found here. Additional coverage of this most recent development can be found here and here. Arpaio's attorneys have filed a notice of appeal of the ruling. My own discussion of the Arpaio pardon can be found here.

I do not have a time to do my own research on the law of pardons in the Ninth Circuit, but from the court's focus on the law of other circuits it appears that there does not seem to be any clean, controlling precedent in the Ninth Circuit. The court was not persuaded by Arpaio's reliance on U.S. v. Schaffer in which the DC Circuit vacated all orders following a pardon. The judge noted that due to the procedural background of Schaffer, the only issue pending was the court's grant of a new trial to Schaffer, which left Schaffer in a position "as if no trial had ever taken place." Accordingly, the seemingly broad order in Schaffer had a limited effect, which distinguished the ruling in Schaffer from Arpaio's broader request.

When this Order is appealed, I expect that the quick discussion in footnote one of the Order will be expanded upon. Here is the text of that footnote (with hyperlinks to the text of the cited cases added):

The United States Supreme Court originally signaled in dicta that a presidential pardon may have an expunging effect. See Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866) ("A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence."). The Court later rejected this view. See Burdick v. United States, 236 U.S. 79, 94 (1915) ("[A pardon] carries an imputation of guilt; acceptance a confession of it."). Other courts have followed suit. See, e.g., In re North, 62 F.3d 1434, 1436-37 (D.C. Cir. 1994) (finding Garland dicta not controlling); United States v. Noonan, 906 F.2d 952, 958-59 (3d Cir. 1990) (same); Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975) (same).

As the case works its way up through appeals, I suspect that discussion of the Supreme Court precedents and their interactions will move from the footnotes to the text of whatever opinions result. And if the law in the Ninth Circuit addressing this pardon issue is as absent as it seems from Judge Bolton's order, it will be interesting to see how the Ninth Circuit addresses the issue. In the end, I suspect that the ruling will not be favorable to Arpaio, but if the Ninth Circuit takes a thorough approach to the analysis (see, e.g., the approach in Noonan), the decision could be a notable contribution to this rarely-litigated area of law.

READ MORE - Court Denies Sheriff Joe Arpaio's Request to Vacate All Orders and Dismiss Case Following Pardon

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