We write to ask all students, staff and faculty to avoid the area near Wright and Green Streets in front of the Illini Union until further notice. This area has been the site of a demonstration that began early this morning and that has included unlawful and impermissible conduct by some. Despite our continued efforts throughout the day to ensure those who were participating were fully informed of the policies and rules that they needed to follow to continue their activities, the participants refused to adhere to them.
This afternoon, when university police officers attempted to escort university staff into the area to remove the encampment structures violating university policy, members of the demonstrating group prevented their entry and physically resisted. This included use of pieces of lumber as well as other physical tools and objects to push the officers back. Our officers made the decision to deescalate the situation and stepped back to reduce the risk of injury to themselves or the demonstrators.
This situation has escalated beyond a peaceful expression of opinion. Those who do not comply with our orders to leave will be subject to consequences, including arrest, when criminal laws are violated, and the possibility of immediate interim suspension for students.
Migrants wait to be processed at the U.S.-Mexico border in Eagle Pass, Texas. (Miguel Juarez Lugo/ZUMAPRESS/Newscom)
On Friday, federal District court Judge David Alan Ezra once again rejected Texas's argument that illegal migration qualifies as an "invasion" authorizing the state to "engage in war" response, under Article I, § 10, Clause 3 of the Constitution, which states that "No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
This ruling is the latest phase of the ongoing litigation in United States v. Abbott over the legality of Texas's actions in placing water buoys to block a part of the Rio Grande River. The federal government claims this violates the Rivers and Harbors Act of 1899. Texas claims it does not, but but also argues that the Invasion Clause gives the state the power to install the buoys even if it would otherwise violate federal law, due to the fact that illegal migration and drug smuggling qualify as invasion.
Judge Ezra's latest decision rejects Texas's motion to dismiss the River and Harbors Act claim, but does side with Texas on the issue of dismissing an additional claim that the placement of the buoys violates the 1848 Treaty of Guadalupe Hidalgo (which ended the Mexican War). As part of the former ruling Judge Ezra again rejects the "invasion" theory:
Texas now wants to respond to immigration as a military threat, which is beyond "invasion" as described in the Constitution…. And even if this were an invasion as understood by the Founding Fathers, the federal government is already present and actively managing immigration at the border…
When the Constitution was enacted, the Founding Fathers conceptualized invasions as a part of war, not an "invasion" or "disaster" created by immigrants entering the United States. The text, structure, and original understanding of the Constitution makes it clear that immigration does not constitute an invasion….
Judge Ezra's reasoning here largely tracks that of his September preliminary injunction ruling, and his even more thorough analysis in his February 2024 ruling in a case where the federal government challenges the legality of Texas's SB 4 immigration law, which gives state officials broad power to detain and deport undocumented immigrants. A Fifth Circuit panel recently reached the same conclusion in the SB 4 case.
However the en banc Fifth Circuit may well further consider the meaning of "invasion" in United States v. Abbott. That issue is extremely important for reasons that go far beyond the specifics of the water buoy and SB 4 cases.
Among other things, if Texas prevails on the invasion question, border states would have broad power to start wars with neighboring countries, and the federal government could suspend the write of habeas corpus (and thereby detain people without filing charges) virtually anytime it wants. I cover these and other flaws in Texas' invasion theory in greater detail in an article in Lawfare, and in an amicus brief I filed in US v. Abbott, before the en banc Fifth Circuit, on behalf of myself and the Cato Institute.
As I've noted before, public universities have considerable authority to impose content-neutral rules on demonstrations, for instance prohibiting overnight campouts, restricting sound amplification, and so on. But of course the First Amendment requires such rules to be content-neutral (or, in "limited public forums" on campuses, at least viewpoint-neutral). And even content-neutral restrictions in outdoor quads, at least as to student gatherings, still have to be reasonable (to oversimplify the rules slightly).
Beyond that, a 2019 Texas statute reinforces this, and indeed provides even broader protection than the First Amendment minimum. In particular, it treats "outdoor areas of the institution's campus" as tantamount to "traditional public forums," open to all members of the public. This designation also precludes content-based restrictions. (Some public universities might be able to argue that such outdoor spaces are only "limited public forums," where content-based but viewpoint-neutral restrictions are allowed; not so in Texas.) And it provides that restrictions must be "narrowly tailored to serve a significant institutional interest" and must "leave open ample alternative channels." (Again, if a university could treat an outdoor space as a "limited public forum," restrictions would only need to be reasonable; but in Texas the bar is higher.) And the statute "recogniz[es] freedom of speech and assembly as central to the mission of institutions of higher education.
This makes me pretty skeptical about the dispersing of protesters at UT. First, Governor Abbott's statements suggest that this happened because the protesters' speech was anti-Semitic; but that's a viewpoint-based basis for restriction, not a content- and viewpoint-neutral one. (The Governor appears to have been involved in the police actions here.) Second, from the press accounts that I had seen the protesters appear to not have been engaged in sleepouts, blockages, or other things that violated campus rules; and to the extent that they didn't have a permit, there seemed to have been no "clear, published, content-neutral, and viewpoint-neutral criteria" (to quote the Texas statute) justifying any denial of a permit.
The Foundation for Individual Rights and Expression, whose work I generally trust in this area, takes a similar view in a letter it released Thursday:
I don't know Dov Waxman, professor of Israel Studies at UCLA, except by reputation. And his reputation is of being ideologically on the left, hostile to Israel and sympathetic to the Palestinian cause, and as someone who downplays the prevalence of antisemitism among "antizionists."
Therefore, I found a recent tweet of his explaining why he won't support the "encampment" at UCLA of special interest:
I cannot join this protest because it is not just a protest against the war in Gaza. Among the demands of the protest organizers is the demand to "sever all UC-wide connections to Israeli universities, including study abroad programs, fellowships, seminars, and research collaborations, and UCLA's Nazarian Center." Needless to say, I oppose the demand to boycott the Nazarian Center, which I direct. The Center is devoted to the academic study of Israel and has no ties to the Israeli government. I also oppose boycotting Israeli academic institutions and academic boycotts in general.
But it isn't only the demands of the [UCLA] protest organizers that I have a problem with. One of the organizations behind the protest, Students for Justice in Palestine, has expressed support for Hamas and has even celebrated the massacre of Israelis on October 7. [David notes: This is true of both the national organization and individual campus SJPs.] Being in solidarity with Palestinians does not necessitate supporting Hamas. On the contrary, Hamas oppresses Palestinians and has no concern for the lives of Palestinian civilians in Gaza. They have openly stated that they are willing to sacrifice countless Palestinian lives—"martyrs"—for their cause, which is the ultimate eradication of Israel. They have spent billions building a vast underground network to protect themselves and their weaponry, but they haven't built a single bomb shelter for Gazan civilians or sheltered them in their tunnels. They are prolonging the devastating war in Gaza, and the humanitarian crisis there, in order to maintain their power and authoritarian rule in Gaza.
I know that many people in the pro-Palestinian movement don't support Hamas and don't praise the October 7 massacre, but groups like SJP lead the movement on many college campuses, exploiting the sympathy that many students rightly feel for the suffering of Palestinians. Students and faculty demonstrating in support of Palestinians shouldn't ignore the fact that the organizers of these demonstrations are, in many cases, ideologically committed to eradicating Israel and expelling Israeli Jews, supportive of violence against Israeli civilians, and willing to ignore or even justify Hamas' strategy of sacrificing Palestinian civilians for their political ends.
I would add two points to Waxman's post. First, SJP is the leading group behind the protests on the vast majority of campuses. SJP, as Waxman noted, is pro-Hamas. This makes the protests effectively pro-Hamas, just like a protest organized by the KKK against affirmative action would be racist, regardless of the intent of individual protesters. And two of the other main groups involved in organizing the protests, Within our Lifetimes and (the wildly misnamed) Jewish Voice for Peace are also pro-Hamas. If student protestors don't want to their reputations to be soiled with the inference that they are at least indifferent to if not supportive of Hamas's genocidal aims and behavior, they should form protest organizations that disclaim support for Hamas. Otherwise, they are in "there are some very fine people at the protests" territory.
Second, as I noted repeatedly on X, while there are certainly pro-Palestinian individuals, there is no pro-Palestinian movement. There is a hate Israel movement that brings together people of various ideologies who hate Israel for different reasons–Palestininan nationalism, pan-Arab nationalism, radical Islamism, anti-colonialism, antisemitism, among others–and that facilitates solidarity among groups that might otherwise be at each other's throats, like radical Islamists and radical secular leftists, among many other strange bedfellows. The Palestinians are a prop for this Israel-hatred. When "the movement" has the choice between supporting something that would benefit both Israelis and Palestinians, or something that would harm both, it will always choose the latter. Pro-Palestinian individuals have had a golden opportunity since Oct. 7 to form organizations that support Palestinian rights but explicitly reject Hamas and the violent destruction of Israel. But they so far haven't taken it.
The clear statement rule and the major question doctrine both function as substantive separation of powers canons in order to avoid deciding if federal actions are unconstitutional.
During oral argument in the Trump immunity case, Justice Kavanaugh articulated a strong understanding of the "clear statement" rule. Under this principle, statutes should be read to not apply to the President unless there is a clear statement that Congress intended to subject the President to that constraint. Kavanaugh suggested there is always a "serious constitutional question whether a statute can be applied to the president's official acts." I wrote about some of Kavanaugh's questions in this post.
Professor Mike Ramsey observed that the clear statement rule, or the "presidential nonapplicability canon (if we can call it that) parallel a view of the major questions doctrine as a substantive canon." I agree with Ramsey. Both the clear statement rule, and the major question doctrine, are substantive canons to avoid potential violations of the separation of powers. Justice Gorsuch explained in West Virginia v. EPA that the major question doctrine is best viewed as an avoidance canon in service of the non-delegation doctrine. That is, the Court will require a clear statement that Congress intended to empower an agency to resolve a "major question" in order to avoid deciding if such a broad delegation would even be constitutional. Likewise, with the Presidential Avoidance Canon, as I described it during the Trump years, the Court will require a clear statement that Congress intended to limit the President's power in order to avoid deciding if such a limitation on the President's power would violate Article II.
The clear statement rule and the major question doctrine both function as substantive separation of powers canons in order to avoid deciding if federal actions are unconstitutional.
I recognize that Justice Barrett is less comfortable with the major question doctrine as a substantive canon, and said as much in the student loan case. Indeed, I question whether Justice Barrett would have joined Justice Gorsuch's Gundy dissent–she may take Justice Scalia's view on the non-delegation doctrine. Even so, I think the clear statement rule is even more justifiable in the context of federal criminal rules for a precise reason: the notion that the sitting President could be prosecuted for a federal crime would have been a non-sequitur to the framers. Regardless of what you think about Nixon v. Fitzgerald presidential immunity–a doctrine that has no real grounding in text or history–the President is the embodiment of the executive branch, and it could never have been fathomed that a President would be indicted by his own subordinates.
Of course, we still live in the shadow of Morrison v. Olson, which, as Justice Kavanaugh explained, was a "terrible decision for the presidency and for the country." Whether we are talking about the mostly-independent independent counsel or the quasi-independent special counsel, the mechanism by which a sitting President could be subjected to the criminal laws does not sit well with the separation of powers. An OLC opinion stating that the sitting President cannot be indicted is cold comfort for me. I don't know if Barrett agrees with Kavanaugh on that point.
What about prosecuting a former President? During oral argument, hypotheticals were raised about whether Presidents Roosevelt and Kennedy could have been indicted after they left office. Of course, such prosecutions would have been impossible, since both Presidents died in office, but we can still consider the hypotheticals. I don't know that the possibility of prosecution after the President leaves office changes the calculus very much. Then again, King Charles I could not be reached for comment.
If we assume that a statute of limitation is greater than four years, any decision that a sitting President makes would be affected by the fear that he could be prosecuted once he leaves office–indeed he would likely be prosecuted by the administration of his leading political opponent. Experiences in countries around the worlds attests to how common this phenomenon is. It is true that the Impeachment Disqualification Clause considers that a person can be convicted of a crime even after being removed from office, but there are a range of individuals who are subject to impeachment. The President is somewhat unique.
One final point on "Officer stuff." Did you really think you'd read an entire post of mine without talking about "Officer stuff"? During the oral argument in Trump v. Anderson, Justices Jackson and Gorsuch both asked why the President was not specifically enumerated in the list of covered offices in Section 3–those who had to take the oath and those who would be subject to disqualification. Jackson and Gorsuch were articulating a version of the clear statement rule: before we read a provision of the Constitution to regulate the President, we want a clear statement that the constitutional text applies to the President. General language about offices and officers is not enough. There are many reasons to require a clear statement of applicability to the President in many contexts. The Trump immunity case might be one instance to explore that issue.
Here's the transcript; on balance, the message seems to me to be correct (though I would be inclined to say that such encampments, if they violate content-neutral rules—as they usually do—should be removed more promptly):
Hello, everyone.
As you surely know, campus communities across the country are struggling to cope with strongly contending views on the war in the Middle East – and MIT is too.
So I want to let you know what I see here, and what I believe is at a stake.
Last Sunday night, 30 or so students set up around 15 tents on the Kresge lawn. They also put up signs – some deeply critical of Israel, some expressing their support for the Palestinian people and their demands that MIT cut research ties with Israel. They have repeatedly stated their commitment to these views.
From the start, this encampment has been a clear violation of our procedures for registering and reserving space for campus demonstrations – rules that are independent of content – rules that help make sure that everyone can have freedom of speech.
The decision departs from what most courts have done in such Title IX cases—but tracks what most courts do in the many other cases where disclosing a plaintiff’s name might damage the plaintiff’s reputation and professional prospects.
From Friday's Seventh Circuit opinion in Doe v. Trustees of Ind. Univ., written by Judge Frank Easterbrook and joined by Judge Kenneth Ripple and Diane Wood:
While John Doe was a medical student at Indiana University–Purdue University Indianapolis, he had a romantic relationship with Jane Roe, a fellow student, who accused him of physical abuse. The University's Office of Student Conduct investigated and found Doe culpable. It suspended Doe for one year and imposed conditions on his return to school. The medical school's Student Promotions Committee recommended that Doe be expelled. Dean Jay Hess of the medical school rejected the Committee's recommendation. So, as of March 2020, Doe was under suspension with a right to return in a year, after satisfying the conditions.
Doe then applied to the University's MBA program at the Kelley School of Business. His application disclosed his suspension but described the Dean's decision as an exoneration. This led to investigation by the University's Prior Misconduct Review Committee, which told Dean Hess that Doe had "withheld pertinent information and gave false or incomplete information" to the business school. Dean Hess concluded, without inviting further response from Doe, that he is unfit to practice medicine and expelled him from the medical school, effective June 16, 2020.
That decision led to this litigation, in which Doe accuses the University of violating both the Due Process Clause of the Constitution's Fourteenth Amendment and Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681–88….
Substantive details omitted (see here for more), but here's the pseudonymity analysis:
The norm in federal litigation is that all parties' names are public. Judicial proceedings are open to the public, which has an interest in knowing the who and the how about the behavior of both judges and those who call on the large subsidy of the legal system.
One justification for anonymity is youth. Fed. R. Civ. P. 5.2(a)(3) requires the use of initials rather than names for minors. Otherwise "the complaint must name all the parties." Doe is well into his adult years (recall that the events in question occurred while he was a medical student). A substantial risk of harm—either physical harm or retaliation by third parties, beyond the reaction legitimately attached to the truth of events as determined in court—may justify anonymity…. But "we have refused to allow plaintiffs to proceed anonymously merely to avoid embarrassment." Doe does not contend that he is at risk of physical harm; his asserted interest lies in protecting his reputation—even though the University found that Doe committed physical violence against Roe.
but throws out a similar award against another professor who backed the student's allegations. (A jury had concluded the student's allegations were false and defamatory.)
From Thursday's Seventh Circuit decision in Sun v. Xu, written by Judge John Lee and joined by Judges Diane Wood and Doris Pryor:
Appellants Xingjian Sun and Xing Zhao accused their professor, Appellee Gary Gang Xu, of sexually and emotionally abusing them while the two were students at the University of Illinois at Urbana-Champaign (UIUC). Sun and Zhao brought these allegations to UIUC administrators, and Sun later publicized them during an interview on a nationally televised morning news show {CBS This Morning}. Meanwhile, Appellant Ao Wang, a professor at Wesleyan University, learned of these allegations and posted on an online message board that Xu had a history of sexually assaulting students ….
The jury found that Sun had defamed Xu (and awarded Xu $50K on that theory), that Sun had intentionally inflicted emotional distress on Xu (awarding Xu an extra $50K for that), and that Wang had intentionally inflicted emotional distress on Xu (awarding him $300K in compensatory damages and $400K in punitives). The jury also rejected Sun's and Zhao's claims of rape, forced unpaid labor, and improper retaliation.
But the court threw out the intentional infliction of emotional distress claim against Wang (Xu hadn't sued Wang for defamation, which might be because he had sued for that in Chinese court, and the Chinese court had rejected that claim):
4/27/1822: President Ulysses S. Grant's birthday. He would appoint four Justices to the Supreme Court: Chief Justice Waite, Justice Strong, Justice Bradley, and Justice Hunt.
National Socialist German Student League poster. (NA)
A recent viral tweet (it has 8.6 million views) inspired by controversy over anti-Israel activism on college campuses asserts that [a] good law of history is that if you ever find yourself opposing a student movement while siding with the ruling class, you are wrong. Every single time. In every era. No matter the issue." Most admirers of student political activism don't go so far as to say student movements are always in the right. Still, the belief that student activists have some special claim to moral authority is nonetheless a common one. Aren't smart, idealistic students at least likely to be right most of the time?
Sadly, the answer is "no." As Rick Hess of the American Enterprise Institute points out, there is a long history of student movements embracing awful causes and tactics:
[L]et's tally some of the "student movements" that have been a source of (mostly authoritarian) misery, mayhem, and murder over time. In every era. And no matter the issue.
There was the student movement that helped establish Fidel Castro's oppressive regime in Cuba. In 1957, the Revolutionary Directorate, an insurrectionist organization that drew heavily upon students, mounted a bloody attack on the presidential residence during which dozens were killed. Students served as a vanguard for Castro's regime as it wantonly arrested, tortured, reeducated, and murdered those deemed suspect.
There was the Marxist-shaded Iranian student movement that helped bring Ayatollah Khomeini to power, occupied and seized hostages at the US embassy in Tehran, and fueled the rise of religious fanaticism. Ironically, for the students, one of the first actions Khomeini took was to "Islamize" universities as part of a Cultural Revolution, which involved purging Marxist and secular books and professors.
There were Mao Zedong's Red Guards, the student-led paramilitary that loomed so large in China's Cultural Revolution, who helped to round up, attack, imprison, and murder millions of "counter-revolutionaries." Impassioned students helped liquidate Mao's rivals while demanding lockstep obeisance from petty officials, educators, scientists, and educated professionals—all conveniently dismissed as members of the "ruling class."
There was Daniel Cohn-Bendit ("Danny the Red") and the French student strike of May 1968, which raised justifiable concerns of civil war. This led to street battles in Paris, the retreat of French president Charles de Gaulle to West Germany, moments when it appeared Soviet sympathizers would overthrow France's democratic government, and de Gaulle's ultimate dissolution of the National Assembly.
Then, of course, there were the US student strikes of the 1960s. While the intimidation of campus leaders, building occupations, violence, and revolutionary cosplay have somehow gained a romantic edge, the institutional destruction wrought by these protestors is perhaps best captured by recalling Mark Rudd's 1968 letter to the president of Columbia: "Up against the wall mother—–, this is a stick-up."
This list can easily be extended. The Nazis were backed by a large and active student movement—the National Socialist German Student League. When it was formed in 1926, it was most certainly opposed to the German "ruling class" of the Weimar Republic.
In the 1960s, many white students at schools like the University of Alabama opposed desegregation and some mobilized to try to stop it. They saw themselves as opposing the overbearing power of the federal government, and the "ruling class" in Washington.
The student anti-war movement of the Vietnam era is often seen as obviously in the right. But US withdrawal from Indochina led to establishment of a brutal totalitarian regime in South Vietnam, and to the horrific Khmer Rouge "killing fields" in Cambodia—one of the worst mass murders in world history. Hundreds of thousands of "boat people" fled Vietnam and Cambodia after the communists triumphed, creating a massive refugee crisis. The evidence of people voting with their feet is a powerful indicator of which side in a conflict is worse. In this case, the communists were vastly more oppressive than the US-supported governments in South Vietnam and Cambodia, despite the serious flaws of the latter. Student activists who failed to see that were badly misguided.
One could still make a strong argument that the war wasn't worth it from the standpoint of America's narrow self-interest. But many student activists went far beyond that, and claimed that a communist victory would actually be a good thing. They could not have been more wrong.
Obviously, student activists aren't always in the wrong. In the 1960s, those who opposed racism and segregation were very much in the right. In more recent years, student activists were right to support same-sex marriage, and oppose racial profiling by law enforcement. And, if student activists often go wrong, the same is true of political activism by older people. The age of people supporting a cause is rarely a strong indicator of its validity.
There are, however, some systematic reasons to view student movements with a degree of skepticism. One is that younger, people, on average, have lower levels of political knowledge than older voters. In most situations, ignorance increases the chance of being wrong.
Students, on average, have higher levels of political knowledge than people who don't go to college. But they are still likely to be less knowledgeable—again, on average—than older college graduates. Recent survey data reveals widespread ignorance among students about the basic facts of the Israeli-Palestinian conflict.
Committed activists are likely to be more knowledgeable than the average student; they probably spend more time studying the issue in question. But activists with strong views are also disproportionately likely to suffer from "rational irrationality"—the tendency to be highly biased in evaluation of political information. Political activists of all ages are disproportionately likely to be highly biased "political fans" who overvalue anything that supports their preexisting views, while downplaying or ignoring contrary evidence.
None of this proves that student movements are necessarily wrong about any given issue, or even that they are generally more likely to be wrong than movements dominated by older people. The point is not that we should reflexively reject student movements' positions, but that we should not give them any special credence. That holds true for other political movements, as well.
Dean Erwin Chemerinsky wrote an essay in The Atlantic about the protest at his home. The Dean provides more details on the facts leading up to, and during the protest. But the one paragraph towards the bottom is perhaps the most important:
Overall, though, this experience has been enormously sad. It made me realize how anti-Semitism is not taken as seriously as other kinds of prejudice. If a student group had put up posters that included a racist caricature of a Black dean or played on hateful tropes about Asian American or LGBTQ people, the school would have erupted—and understandably so. But a plainly anti-Semitic poster received just a handful of complaints from Jewish staff and students.
Chemerinsky is exactly right. The double standard is painful, but utterly unsurprising for anyone who has studied anti-semitism. And if silence is violence, there was a bloodbath in what was once Boalt Hall. The fact that only Jewish staff and students complained about the poster demonstrates the problems with the DEI industrial complex: only certain types of diversity are to be promoted. Jews with any attachment to the Jewish state need not apply. And forget ideological diversity.
In every generation, there is anti-semitism. 1619 was four centuries ago, but Jewish oppressions stretches back to the beginning of recorded history. Yet Jewish people will never fit into the DEI intersectional hierarchy. The aftermath of October 7 reveals that anti-semitism is always present; it just manifests in different forms.
In December I wrote:
Regrettably, as soon as Israel was established, the millennia-long train of anti-semitism simply morphed into its latest manifestation: anti-Zionism. They don't hate all Jews, they just oppose all Jews who seek to protect the the only speck on planet Earth devoted for their protection. This doctrine was dressed up in all the academic garb of Marxism, anti-colonialism, and critical racial studies. Anti-Zionism was championed by elite academics on campuses. DEI apparatchiks, ostensibly hired to promote equity, reified the anti-Zionist trope. Students, who are woefully unfamiliar with world history, see the children of the Holocaust as just another oppressor. And, as they are taught, any act of resistance against the oppressors is not only justified, but necessary. The right type of violence demands silence.
What lessons will Chemerinsky and other progressives draw from this experience? Will they reflect on how spending countless hours and dollars on DEI yielded nothing but crickets? Or will they realize that DEI enables and emboldens these students to engage in such antisemitic activity?
I'll admit that when conservative states started to clamp down on DEI, I thought it was mostly performative virtue signaling. But the events of the past few weeks have convinced me that these efforts are not just prudent, but may be necessary for the survival of higher education. I think a significant issue in the 2024 election should be how the Department of Education enforces Title VI.
I am pleased to learn that an excellent cert petition was filed yesterday in the case by Counsel of Record Tobias Loss-Eaton of Sidley Austin. Here's the Question Presented:
Before government agents can search a private home, the Fourth Amendment generally requires them to obtain a warrant supported by probable cause. Here, officers applied for, received, and executed a search warrant based on an affidavit that contained no link at all between petitioner and the address they wanted to search. The courts below agreed, and the government conceded, that the warrant did not establish probable cause, so the search was unconstitutional. But the Tenth Circuit still let the government use the resulting evidence because, it reasoned, if the magistrate had instead denied the warrant application and pointed out the defects, the government likely would have submitted a revised application that would have established probable cause, and a valid warrant would have issued.
The question presented is: Whether the inevitable-discovery doctrine applies to save evidence obtained through an unconstitutional warrant because, hypothetically, if the magistrate had denied the warrant application and pointed out the defects, the government could have fixed them and obtained a valid warrant.
The Supreme Court has not heard a Fourth Amendment case in a few years. And exclusionary rule cases are particularly tricky, as you never know when a narrow case might raise bigger issues that some Justices skeptical of the exclusionary rule might want to take on. Still, this is a strong petition on a case that is worth following. As always, stay tuned.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Bound By Oath podcast: We get neuroanthropological, philosophical, and just a tad practical – and determine conclusively that property rights are a good thing and property isn't theft.
New on the Short Circuit podcast: Special guest Michel Paradis of Columbia Law (among other affiliations) gives us a lesson on secret submersibles and FOIA responses.
Anti-Israel protest encampment at Columbia University. (AP)
Recent conflicts over anti-Israel protests at college campuses highlight the ongoing relevance of issues I addressed in two posts written back in October, in the immediate aftermath of the horrific October 7 Hamas terrorist attack:
The first explained why some "cancellations" of people with abhorrent views are justified, depending on the nature of the views, the type of job they are barred from, and whether stigmatization is likely to be an effective tactic in dealing with these ideologies.. I had in mind people who supported the Hamas terrorist attack and others with comparably awful views. which surely includes those current protest organizers who promote anti-Semitism and terrorism. But my reasoning also applies—perhaps with greater force—to people who go beyond expressing awful views by engaging in violence, disruption, and harassment, as some (though by no means all or even most) anti-Israel protestors have since October 7.
The post on the far left and Hamas explains why far-left support for Hamas terrorism is not an aberration, but rather is part of a long history of support for repression and mass murder by the likes of Lenin, Mao, and Castro. Many of these atrocities were on a far larger scale than anything Hamas has so far been able to pull off.
Obviously, not all anti-Israel protestors are far leftists. Some are radical Islamists or Arab nationalists. Others just think Israel is using excessive force, or the like. Many more may be just hangers-on without much in the way of clear ideological commitments—"more Woodstock than Weathermen," as my co-blogger David Bernstein puts it. Nonetheless, far-leftists (as I defined them in my post), are prominent among the leaders of disruptive protests that feature support for terrorism and anti-Semitism. Their influence on college campuses is far greater than in most other parts of society. We should not be surprised that adherents of an ideology that justifies terrorism, Gulags, and mass murder would not blanch at the kind of (fortunately) much lesser forms of violence and disruption that we see at some campus protests.
I should emphasize that both posts include a variety of caveats and distinctions. For example, it is not my claim that people with awful views should be "cancelled" from employment of every kind. Much depends on the nature of the job in question. I also don't claim that all left-wingers or anyone to the left of me qualifies as "far left" in the sense used in my post on that topic. In addition, there is a crucial distinction between private refusal to hire or otherwise associate with people, and government suppression of speech. Sadly, Texas Gov. Greg Abbott's response to some of the campus protests in his state falls into the latter category, and thereby violates the First Amendment.
I will also take this opportunity to reiterate a point made in the post about the far-left, to the effect that various right-wing political movements also have awful histories of justifying atrocities, and of anti-Semitism. Having recently coauthored "The Case Against Nationalism," and argued for the prosecution and disqualification of Donald Trump, I cannot easily be accused of being soft on reprehensible right-wing movements.
The posts include other qualifications and nuances, as well. This is is a set of issues where it is more than usually necessary to "read the whole thing," and not just rely on headlines and social media rants.
But, caveats aside, the issues raised in both posts remain relevant. And that relevance is likely to continue, even after the current wave of unrest subsides. It probably won't be the last time far-left awfulness manifests itself, or the last time we have to consider when and if cancellation is justified.
Today the Supreme Court heard oral argument in Trump v. United States, the presidential immunity case. Much of the argument concerned issues left unresolved during the Trump presidency.
First, during the Mueller investigation, it was alleged that Trump violated the federal obstruction of justice statute. I, and others, counteredthata criminal statute should only apply to the President if there is a "clear statement" to that effect. In other words, a general criminal statute should not be read to apply to the President.
Second, it is true that in 1995, the Office of Legal Counsel suggested in an opinion that the federal bribery statute, 18 U.S.C. § 201, would apply to the President, even though there was no "clear statement." But bribery is somewhat unique in that the Constitution expressly enumerates bribery as a ground of impeachment. It is difficult to then argue that the President has some sort of constitutional authority to engage in impeachable conduct.
Third, however, the mere fact that a former President could be prosecuted for bribery does not resolve the allegations leading up to the first Trump impeachment: what exactly is bribery in the context of the presidency? At the time, Seth Barrett Tillman and I acknowledged the easy case: the President receiving a "suitcase full of money" in exchange for performing some official act would amount to bribery. But the theory of the first impeachment was different. Then-Speaker Nancy Pelosi argued that Trump "violated his oath by threatening to withhold military aid and a White House meeting in exchange for an investigation into his political rival."
Fourth, to address these allegations, Seth and I offered a theory for bribery in the context of public officials like the President. This theory explains why motives (including mixed motives) are entirely irrelevant to establishing any traditional or common law sense of "bribery," including "bribery" as used in the Constitution or in the U.S. Code. It is very difficult to disentangle "public" motivations from "personal" motivations. We wrote:
We start from a simple premise: Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined. When government officials act, they almost always act with mixed motives: They act in part to promote the public good and in part to remain in office, or perhaps to seek higher office. Often, the two concepts overlap: What's good for the country is good for the official and his or her chances at reelection. All politicians understand this dynamic, even—or perhaps especially—Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote.
Our position can be summarized in a single sentence: Where one public official act is traded for another public official act, there has not been any illegal conduct. (In my view, of all the things that Seth and I wrote, this is probably one of the most important.) Though these writings were limited to the context of impeachment, I think they would apply more broadly to any federal bribery prosecution of any current or former federal official, including (if not especially) the President.
Fifth, motivations do not play an important role in this analysis. With the president, "personal and public motivations are inextricably intertwined." Why? As we explained, politicians never lose sight of the next election. Merely acting with an eye towards retaining office is not an improper purpose. We wrote:
We consider Trump to stand in a position similar to the log-rolling members of Congress. In our view, he acted to promote the public interest, as he understood it, with the full recognition that his actions also increased the probability that he may prevail at the next election. In those circumstances, Trump's request does not amount to bribery. Poor political discretion, perhaps. But we see no way on these facts to disentangle a motivation to promote American interests abroad from a competing motivation to assist his reelection campaign.
I later expanded on this theme in a New York Timesguest essay published before the impeachment trial started. I explained that "receiving a 'political benefit' does not transform an otherwise legal action (like requesting an investigation) into an abuse of power." I wrote that many Presidents acted based on "dueling motives." President Lincoln, for example, allowed soldiers to return home to vote, even though this action may have put the military campaign at risk, or, at the very least, shifted risk of life and limb onto others remaining on the field of battle. I observed, "Lincoln's personal interests should not impugn his public motive: win the war and secure the nation."
None of these five points were ever addressed by the federal courts, since Trump was never indicted by Mueller. But all five of these points came up during oral argument today in Trump v. United States. I had a sense of déjà vu.
The Clear Statement Rule
The most interest in the clear statement rule came from Justice Kavanaugh. I think of all members of the Court, Justice Kavanaugh has perhaps the most insights on what it means to prosecute a President. Justice Kavanaugh has seen this issue from both sides. Earlier in his career, he worked under Independent Counsel Ken Starr. And later in his career, he served as a White House attorney under President George W. Bush. I remember when there were calls to charge members of the Bush administration with war crimes and worse. Kavanaugh stated, "this case has huge implications for the presidency, for the future of the presidency, for the future of the country." He is exactly right.
I and others have long argued that making legal migration easier is the best way to reduce disorder at the border. To a large extent, this basic Economics 101: if a much-coveted good or service is banned or severely restricted, that predictably creates a large black market. Thus, just as alcohol prohibition led to widespread bootlegging and illegal purchases from the likes of Al Capone, so severe migration restrictions predictably incentivize illegal migration. In a new paper for the Peterson Institute for International Economics, my George Mason University colleague Michael Clemens—one of the world's leading immigration economists—provides the most extensive and sophisticated analysis of this issue to date.
Here is the abstract, summarizing his findings:
An increasing number of migrants attempt to cross the US Southwest border without obtaining a visa or any other prior authorization. 2.5 million migrants did so in 2023. In recent years, responding to this influx, US officials have expanded lawful channels for a limited number of these migrants to cross the border, but only at official ports of entry. These expanded lawful channels were intended to divert migrants away from crossing between ports of entry, by foot or across rivers, thereby reducing unlawful crossings. On the other hand, some have argued that expanding lawful entry would encourage more migrants to cross unlawfully. This study seeks to shed light on that debate by assessing the net effect of lawful channels on unlawful crossings. It considers almost 11 million migrants (men, women, and children) encountered at the border crossing the border without prior permission or authorization. Using statistical methods designed to distinguish causation from simple correlation, it finds that a policy of expanding lawful channels to cross the border by 10 percent in a given month causes a net reduction of about 3 percent in unlawful crossings several months later. Fluctuations in the constraints on lawful crossings can explain roughly 9 percent of the month-to-month variation in unlawful crossings. The data thus suggest that policies expanding access to lawful crossing can serve as a partial but substantial deterrent to unlawful crossing and that expanding access can serve as an important tool for more secure and regulated borders.
This is a large effect. It implies, for example, that doubling the number of people allowed to cross the border legally would reduce illegal entry by %30. At the same time, we should not be surprise that the effect falls short of a 1 to 1 correspondence. For obvious reasons, many new legal entrants won't necessarily be people who would otherwise have tried to enter illegally.
I would add that, while Clemens uses an extensive body of data, none of the measures easing legal entry came anywhere close to legalizing it for a large majority of those seeking to immigrate into the United States. Even at its most permissive, border policy during the period studied still barred legal entry to the large majority of would-be migrants.
A more extensive shift towards "open borders"—such as allowing entry to anyone who registers with the authorities and there is no evidence he or she plans to engage in crime or espionage—might well lead to the near-total cessation of illegal migration, thereby also eliminating all or most involvement by organized crime. Similarly, the end of alcohol prohibition largely eliminated the role of organized crime in that industry.
Obviously, preventing disorder at the border is far from the only rationale for immigration restrictions. If your main reason for advocating restrictionism is some other rationale, such as preventing immigrants from overburdening the welfare state or spreading potentially harmful cultural values, Clemens' results may not move you much. I address many of these other types of concerns in detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom. But "border security" has become a major rationale for restrictionism in public debate, one that often gets more attention than any other. Clemens' important work adds to the already considerable evidence indicating that we can effectively address that issue by making legal migration easier.
In a previous post, I wrote about Clemens' new paper showing that mass deportations of migrants destroy more jobs for native-born Americans than they create. His most famous article describes the enormous economic benefits of dropping immigration restrictions, which could well result in a doubling of world GDP.
