Law

An Unfair Swipe at the Federalist Society

Richard Epstein
Richard Epstein
34
 

It looks as if the next presidential election—less than a year away—will feature a rerun between two road-tested candidates: President Joe Biden and former president Donald Trump, who at present seem, with all their evident flaws, to push other candidates aside. Not only does Trump lead in the run-up to the Republican primary, but, contrary to many expectations, he seems to have edged into the lead against Biden for the general election.

It is no surprise that columns in the New York Times seek to bolster Democratic fortunes. A recent heartfelt op-ed in the Times by three veteran Trump opponents—George Conway, J. Michael Luttig, and Barbara Comstock—seeks to bolster Democratic fortunes. They insist that re-electing the former president could undermine the Constitution, the rule of law, the independence of the courts, and much else besides. They offer no specifics to document these claims, and maintain a conspicuous silence about any activities of the Biden administration that arguably flout these very principles, such as its overgenerous use of executive orders on such matters as student loan forgiveness and the use of fossil fuels, which undermine the separation of powers; as well as the attacks on conservative Supreme Court justices, coupled with dangerous suggestions by Senator Sheldon Whitehouse of Rhode Island, who has denounced a Code of Conduct recently released by the Supreme Court. Whitehouse proposes: “My ethics bill would create a transparent process for complaints and allow a panel of chief judges from the lower courts to investigate and make recommendations based on those complaints.” But, as the Wall Street Journal noted editorially, this move would inspire an endless array of public complaints, many generated by Whitehouse’s loyalists, to be investigated under uncertain procedures that clearly amount to the politicization of the judiciary and an assault on the independence of the Supreme Court. Just how would those justices operate, knowing that their legal decisions are subject to the review by the judges whose work they are supposed to review? And to whom are these recommendations made, and for what purpose?

The most bizarre claim in the Times op-ed is to point an accusing finger at the Federalist Society (with whom I have worked closely since its inception over forty years ago), as derelict in failing to control the asserted dangerous activities of any planned Trump administration. The charge wholly misunderstands the role that the society has played as an incubator of conservative and libertarian lawyers—who, for all their differences on such key long-standing issues as judicial review and the protection of speech and property rights, will never be mistaken for the progressive rivals.

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Hub Wonk #179

Supreme Oral Arguments: Do Gun Rights Rest on Responsible Behavior

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Hosted by Joe Selvaggi
With guest Clark Neily

Joe Selvaggi engages in a conversation with constitutional scholar Attorney Clark Neily to explore the oral arguments presented in the US Supreme Court case USA v Rahimi. The discussion delves into the intricate examination of behavioral history and the legal processes involved in restricting an individual from owning a firearm.

Guest:

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Trump Facing Misguided Disqualification Efforts

Richard Epstein
Richard Epstein
25
 

Multiple efforts have been mounted to drive former President Trump off the November 2024 ballot by claiming that his activities in connection with the January 6 riots (to use an unfreighted word) at and near the Capitol constitute engaging in an insurrection sufficient to bar him from regaining the presidency. An early decision by the Minnesota Supreme Court unwisely complicated the matter. It concluded that the petitioners had standing to challenge Trump’s participation in the primary, only to hold on the merits that Minnesota law allowed voters in the primary first to decide whether to put him on the ballot. More ominously, it also held that the effort to keep Trump off the ballot was neither “ripe” nor “about to occur,” and thus could be decided on some later day, much closer to the election.

There was a spirited debate of this topic at the November 2023 Federalist Society meeting between Professors Will Baude and Michael McConnell over the various aspects of the debate, where Baude defended the insurrection charge that McConnell opposed. I disagree strongly with Baude’s conclusion and much of McConnell’s reasoning to hold off making the decision. So, I present my own view here, and insist that a correct disposition of the case would decide it on the merits right now, letting Trump win on this dispute by a TKO. To see why, it is important to tee up the full text of Section 3 of the Fourteenth Amendment, which reads as follows:

Section 3 Disqualification from Holding Office

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Throwing the Flag on Using a “Red Flag”

Rodin
Rodin
119769
 

The Supreme Court is taking up a case challenging the use of a Texas state “red flag” by federal prosecutors to deny someone their 2nd Amendment right to keep and bear arms and to jail them for unlawful possession of guns. The reporting on this case may likely ignore the actual legal challenge. Instead, it will be characterized as: “Putting spouses and significant others (mostly women) at risk by ruling ‘red flag’ laws unconstitutional vs. upholding a violation to a fundamental right of self-defense without due process of law.”

The case is United States v Zackey Rahimi. Mr. Rahimi was accused of domestic violence by an ex-girlfriend and she sought a civil protective order (CPO) from a Texas state court. A preliminary CPO was issued and a hearing set for no more than two weeks later. Then, after service of notice at least 48 hours prior to the hearing, Mr. Rahimi could appear to challenge the order.

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No ‘Pause’ without Freedom for Hostages

Richard Epstein
Richard Epstein
178
 

As of this writing, the fighting in Gaza continues to rage, as the Israelis have surrounded the Hamas forces, now trapped in the elaborate tunnels that had allowed Hamas to launch its unprovoked and bloody assault against Israel on October 7—yet another day that will live in infamy—with its 1,300 Israelis dead and tortured and thousands more wounded. The fierce Israeli response has without question killed a large number of civilians, many of whom have been used by Hamas as human shields in violation of the laws of war. The proposal recently put on the table by President Biden and his secretary of state, Antony Blinken, is to allow for an immediate “pause,” which the New York Times calls something short of a traditional cease-fire, even if for some indefinite duration. The humanitarian case for the pause is that it will let desperately needed supplies reach the Palestinian civilian population and will allow for the orderly movement of women and children to lands south of Gaza City in relative safety.

But the Biden proposal falls short on at least on one point. It claims that the pause gives both sides time to negotiate for the release of Hamas’s hostages. But Israeli leader Benjamin Netanyahu surely has the right opening negotiation gambit: there must be no pause until the hostages are unconditionally released. The sequence really matters. It is naïve to ignore that any pause for such negotiations would give Hamas a chance to draw out the negotiations indefinitely, and further to insist that certain other conditions be satisfied by the Israelis, including the release of Hamas soldiers and other prisoners in Israel now held for the commission of violent offenses—people who could rejoin the struggle once the pause has been concluded. Why is Israel bound to negotiate for the release of hostages who never should have been captured in the first place? The Israelis have already secured the release of five hostages, but no one can claim that they must now give something to Hamas in return.

As is well known, many of the hostages are not Israelis, but come from other countries. Thus, the total includes some 54 citizens of Thailand, none of whom has dual citizenship with Israel, and at least 138 hostages with foreign passports from places like Argentina, Germany, the United States, France, and Russia, some of whom may well be dual Israeli citizens. One of the marks of terrorism is the indiscriminate use of force, and Hamas has yet again exceeded the bounds of decency by holding these innocent parties in its attempt to extract gains from Israel. It is within Hamas’s power to release these persons—all of them—immediately, and to account for those who have died during their long ordeal. For anyone to insist that the hostage release become part of some negotiations puts these captives at undue risk.

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Member Post

Full Size Tabby
Full Size Tabby
88
 

Some unexpected advertisements get attached to podcasts I download. Not the ads embedded in the podcast by the podcast producer, but added by others along the distribution process. Ad targeting is not always as precise as claimed. But sometimes that way I learn about things I might otherwise miss. One recent unexpected advertisement is an […]
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John H.
John H.
24
 

As an executor and a trustee…I’ll be glad to cease being both! Meanwhile, needs must. Fortunately, the entities requiring my attention are uncomplicated, and the beneficiaries are patient and teachable, not in the least greedy. They are not at all the thoroughly unattractive characters you find in John Grisham books, nor are they the exquisitely […]
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OccupantCDN
OccupantCDN
89
 

Trump’s legal battles have a new front in Colorado. Where he’s being sued to keep him off the ballot in Colorado. Isnt it grand to be a democrat? When you can hold the final veto on ballot access? Donald Trump might be the worst possible candidate for the office – but right now – he’s […]
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Keeping a Tax Clash from Going Out of Bounds

Richard Epstein
Richard Epstein
2510
 

For the past few years, many progressives have made it a high priority to impose on the superrich an annual wealth tax that takes hold even on those whose wealth declines in a given year—or, failing that, to impose a tax on unrealized income (i.e., simple accretions of wealth by people who have not sold or otherwise disposed of their property). These proposals looked to be off the table until the decision of the Supreme Court to hear Moore v. United States (2023) put the matter into high relief.

Moore started out as a technical tax dispute when the government sought to collect $14,729 in taxes from Charles and Kathleen Moore under the mandatory repatriation tax (MRT) part of the Tax Cuts and Jobs Act (TCJA) of 2017 on income trapped in a corporation by the MRT’s regulations. But the case quickly attracted greater attention because the Moores claimed that the MRT tax was unconstitutional because gain had not been realized—that is, distributed from the corporation to the Moores. They stated that the case presented this question:

Whether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states.

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Accusations and Anger Work Against Gaza Peace

Richard Epstein
Richard Epstein
24
 

There is no question that the struggle in Gaza is as much about words as it is about hostages, guns, and rockets. In my last column, I decried the constant efforts by Western journalists to downgrade the culpability of Hamas terrorists by calling them “fighters” and “militants.” Belatedly, one such offender, the BBC, issued a wishy-washy explanation for its past practice of calling these terrorists “militants” and “gunmen.” But its explanations and its backtracking on one inflammatory story, paralleling a similar weak response in the New York Times, did not undo the untold harm from its sloppy reporting, which sparked additional protests in Arab lands by first saying that an Israeli missile, and not an errant Hamas rocket bound for Israel, damaged a Gaza hospital.

Its act of “speculation,” as the BBC characterized it, was relatively small change compared to the nonstop campaign by Hamas and its supporters to brand Israel an outcast “colonial” nation whose “occupation” and “apartheid” actions justified Hamas “resistance,” even in the form of mass slaughter of innocent Israelis whose only crime is to live in a land that Hamas claims as part of a greater Palestine that runs from “the [Jordan] river to the [Mediterranean] sea,” an area, which now becomes increasingly clearer, that should in their view be “Judenrein,” that is, free of all Jewish people.

It is wholly illegitimate to treat these political claims, even if true, as any justification for the mass slaughter that took place, which has spurred Israel’s determination to rid Gaza of all elements of Hamas, after which it might be possible to have some responsible discussion of future relationship between the two warring peoples. But that discussion can begin only if the supposed justifications for the “resistance” are decisively laid aside.

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Hub Wonk #174

Federal Firearm Forfeiture: SCOTUS Considers Gun Rights and Due Process

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Hosted by Joe Selvaggi
With guest Clark Neily

Joe Selvaggi hosts a conversation with constitutional legal expert Clark Neily, who delves into the facts and legal complexities surrounding USA v. Rahimi, currently before the Supreme Court. This case questions the forfeiture of Second Amendment rights for individuals accused of domestic abuse.

Guest:

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In Chasing Amazon, the FTC Ignores Consumers

Richard Epstein
Richard Epstein
86
 

To no one’s surprise, last week the Federal Trade Commission, joined by some fourteen mostly blue states, launched its antitrust attack on Amazon by charging that the firm enjoys durable market power in two adjacent markets—the “Online Superstore Market” and the “Online Market.” The basic charge of monopoly insists that Amazon, like other monopolists, raises its prices above their competitive level in ways that reduce welfare for consumers.

But in Amazon’s case, the FTC’s claim is unique in at least two ways.  The first is that the complaint does not make any reference to the well-established consumer-welfare standard, lest it call attention to the Chicago School of Economics whose analysis the FTC rejects. Nor does its complaint ever consider any efficiency justifications, even though these are part of any balanced assessment of Amazon’s business model that has benefited some 170 million Amazon Prime customers, all of whom are free to take their business elsewhere.

But there is indeed a deep ambiguity in the FTC’s complaint that must be identified. The New York Times ran a story that describes a “cage match” between FTC chairwoman Lina Khan and Jeff Bezos, Amazon’s founder and executive chair. The Times notes that Khan has been “relentless in exposing what she sees as Amazon’s monopolistic ways,” while Bezos “would stop at nothing to deliver the low prices and speedy delivery that shoppers craved.” These two titans are talking past each other. Bezos’s search for lower prices should normally be regarded as a lust to outdo the competition, which would mean that the only conceivable antitrust claims that the FTC could bring are that of predation: offering prices so low that it drives out the competition, leaving it free thereafter to raise prices once all competitors have abandoned the field. Indeed, in her oft-cited student note in the Yale Law Journal—“Amazon’s Antitrust Paradox”—Khan puts this predation theory front and center when she writes that “the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible.”

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Campuses Struggle with Free Speech

Richard Epstein
Richard Epstein
84
 

Freedom of speech is widely acknowledged as vital in the abstract. Yet that principle presents serious problems in its concrete applications. The constitutional text that invokes this principle is both cryptic and emphatic when it says that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” At the time of the founding, the First Amendment bound only the federal government. It was not held to bind the states until 1925 under Gitlow v. New York, when it was further determined that the amendment did not protect any speaker who advocated the overthrow of the United States government by force and violence. To this day, the First Amendment does not apply to any private institution, but without question most of these institutions have incorporated free-speech provisions in their own charter or governance provisions.

The difficulties start, however, with its interpretation in both public and private settings. Courts have resisted the tendency to engage in free-speech absolutism that makes no exceptions or excuses from the constitutional command. Such free-speech exceptionalism does not withstand the test of common sense. We all believe in the freedom of action, but that does not countenance actions such as theft, murder, or rape. And the freedom of speech surely does not protect any threats of the use of force. That simple libertarian observation requires some account of exceptions that should be grafted on to the basic principle of freedom of speech.

Attempts to find the right balance are constantly tested on college campuses, as shown by some recent incidents.

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Hub Wonk #171

Ruining Research Rewards: Price Controls Come for University Patents and Products

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Hosted by Joe Selvaggi
With guest Dr. William Smith

Joe Selvaggi talks with Pioneer Institute Senior Fellow Dr. Bill Smith about the benefit of the Bayh-Dole Act’s protection of intellectual property rights for university research patents and the risk posed to the nation and the local economy from recent efforts to consider price controls on products developed from patented discoveries

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Member Post

John H.
John H.
14
 

A few weeks ago, there was a post about a constitutional crisis in the U.S. It may even have been titled that. (Close.) Now I’ve just done a search on Ricochet for “constitutional crisis,” and it returns five pages of hits, spread over the last thirteen years. Which argues not for the existence of a […]
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The UAW Gets (Too) Tough

Richard Epstein
Richard Epstein
55
 

At the stroke of midnight on Friday, September 15, to no one’s surprise, the United Auto Workers union, led by its hawkish new president, Shawn Fain, called for strike action at all three of the major traditional American automotive companies: Ford, General Motors, and Stellantis (the owner of Chrysler through merger). The workers have gone on strike to secure major wage gains and other concessions from the three companies, all of which have made offers that contain some major contract improvements.

There had already been movement on both sides, so that on the eve of the strike, the basic wage rate increase that the companies had offered moved to 20 percent over the life of the four-and-a-half-year contract, while the union had come down from over 36 percent. The union also wanted to end the tiered system of employment that pays new workers substantially less than senior employees, and reached for a major change: getting five days’ pay for a four-day workweek. There are always myriad other demands involving collateral issues characteristic of virtually every collective-bargaining agreement.

Against this backdrop, Fain takes a very simple view: “The money is there. The cause is righteous. The world is watching.” His basic argument is that it is galling for union workers to see GM CEO Mary Barra pull down some $29 million in 2022, a 40 percent wage increase over the past four years, while worker pay has gone up only 6 percent during that same period. Indeed, relative to inflation, the hourly wages for autoworkers in both the union and nonunion sector have dropped by close to 20 percent since 2008, as the worker concessions made in the 2008 bailout have never been restored.

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