SECRET LAWS:

Freedom and the Lawmakers: A Book Review of Over Ruled: The Human Toll of Too Much Law, by Neil Gorsuch and Janie Nitze (Alberto Mingardi, EconLib)

Gorsuch and Nitze provide some figures of the paper blizzard sweeping over Washington, D.C. “Less than a hundred years ago, all of the federal government’s statutes fit into a single volume. By 2018 the U.S. Code encompasses 54 volumes and approximately 60,000 pages. Over the last decade, Congress has adopted an average of 344 new pieces of legislation each session. That amounts to about 2 or 3 million words of new federal law each year.” Agencies “publish their proposals and final rules in the Federal Register; their final regulations can also be found in the Code of Federal Regulations. When the Federal Register started in 1936, it was 16 pages long. In recent years, that publication has grown by an average of more than 70,000 pages annually. Meanwhile, by 2021 the Code of Federal Regulations spanned about 200 volumes and over 188,000 pages.” And “not only have our laws grown rapidly in recent years… so have the punishments they carry.”

THAT WAS EASY:

After Immunity: How Judge Chutkan Should Apply Trump v. U.S.—and When (Norman L. Eisen, Matthew A. Seligman, E. Danya Perry and Joshua Kolb, September 2, 2024, Just Security)

In our view, it is appropriate to proceed first with briefing on whether the superseding indictment and other evidence to be presented at trial meet the tests of Trump, as suggested by the special counsel in the joint status report. Immunity issues are typically treated as a threshold matter, Hunter, 502 U.S. at 227 (1991) (the Supreme Court has “repeatedly … stressed the importance of resolving immunity questions at the earliest possible stage in litigation”), and doing so is consistent with the Court’s opinion in Trump, including the rationale for interlocutory appeal to protect the interests of the presidency.

As we have explained, Smith has neatly teed up the critical questions for the trial court judge with his streamlined pleading, stripping out material that clearly implicates immunity and adding modifying language to clarify allegations that the government believes relate to unofficial conduct. All of that has made the complex task of applying the Trump test easier for the judge and the parties, and we believe the D.C. Circuit and the Supreme Court will ultimately uphold the superseding indictment.

The most hotly contested issue is likely to be whether the allegations about the vice president concern his official executive branch role, his legislative role as the president of the Senate, or his private one as running mate and whether they are or are not immune. A full analysis of this point is beyond the scope of this article and will be the subject of a future one, but we believe the special counsel has the better of the argument here. See Trump, 144 S. Ct. at 2337 (“Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of ‘presiding over the Senate’ is ‘not an “executive branch” function.’ With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U.S.C. § 15, and the President plays no direct constitutional or statutory role in that process”) (quoting Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974)).

Depending on whether and how Trump challenges these and other allegations in the indictment, briefs alone may not be sufficient to resolve the dispute or to rebut any presumption of official conduct, and an evidentiary hearing or “mini-trial” may be required, such as with respect to the question of the capacities in which Pence was acting at particular crucial moments. It may well be that the dispositive evidence as to such questions is his own testimony.

THE FIRST RULE OF TEXTUAL CONSTRUCTION:

Direct Taxes and the Founders’ Originalism (Robert G. Natelson, 8/29/24, Law & Liberty)

The Founding-era interpretive rule most relevant to the Constitution is this: When construing a document, the primary goal is to discern the intent of the makers. This rule applied to nearly all documents—real estate conveyances largely excepted. Of course, the identity of the “makers” varied according to the nature of the document. Of a will, the maker was the testator; of a contract, the contracting parties; of a statute, the legislators; and of a constitution, the ratifiers. As James Madison wrote, the sense of the legitimate Constitution is “the sense in which the Constitution was accepted and ratified by the nation.” One whose only role is as a drafter—whether the scrivener of a will, a lawyer in the legislative counsel’s office, or a constitutional framer—did not qualify as a maker.

Construing a document by discerning the intent of the makers is a very old practice. This antiquity may come as a surprise to those who think originalism has just “been around for several decades” or that it is merely a white supremacist scam. But it is incontrovertible.

it’s why the amendments can not be absolute: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

BREAK THE ADMINISTRATIVE STATE:

How Many Laws Did You Break Today?: REVIEW: ‘Over Ruled: The Human Toll of Too Much Law’ by Neil Gorsuch and Janie Nitze (Ilya Shapiro, August 11, 2024, Free Beacon)

Over Ruled pithily describes true rule of law as requiring “laws that are publicly declared, knowable to ordinary people, and stable.” To flesh this out a bit, the rule of law is a principle of governance whereby all people and institutions—including the government—are accountable to laws, not personal authority. These laws have to be publicly passed by a representative body; enforced equally through robust legal processes by enforcement organs that themselves follow the law; and reviewed, interpreted, and applied by an independent judiciary.

In other words, the rule of law exists when people are secure in their persons and property; the state is itself bound by the law and doesn’t act arbitrarily; and everyone can rely on legal institutions and the content of the law to plan their personal and business affairs.

Three trends have threatened the rule of law in America: (1) the growth of government—the authors note that the Eisenhower Executive Office Building once housed the State, Navy, and War departments but now can’t even hold all the White House staff, and that three million civilians work for the federal government; (2) the growth of federal laws—such that lobbying the federal government has grown from $40 million to $4 billion in the last half-century; and (3) a bureaucratic explosion—such that in 2015, for example, Congress adopted 100 laws but federal agencies issued 3,242 final rules and 2,285 proposed rules. On the latter point, Gorsuch and Nitze describe a Pacific Legal Foundation report finding that “71 percent of the nearly 3,000 rules issued by the Department of Health and Human Services between 2001 and 2017 were issued by lower-level officials rather than Senate-confirmed agency leaders; at the Food and Drug Administration the figure was 98 percent.”

People’s lives have been turned upside down by a centralization and expansion of government that ultimately can’t keep track of what it’s doing across its range of regulatory machinery. Over Ruled presents detail upon detail of ordinary citizens ensnared in nonsensical regulatory webs that in practice are little different from capriciously applied secret laws, just without the late-night knock on the door leading to a basement torture chamber. Not because the regulators and their enforcement agents are sadistic or power-hungry—though public choice theory makes clear the incentives to increase authority and budgets—but because the governing apparatus has grown too unwieldy. The deep state doesn’t know what the deeper state is doing!

And that’s before we even get to criminal law. As civil libertarian lawyer Harvey Silverglate famously posited, the average American commits three felonies a day. Gorsuch and Nitze have a chapter on such overcriminalization.

THE RULE OF LAW REQUIRES LAWS:

Looking at Loper Bright More Broadly (Jim Harper, 7/31/24, AEIdeas)

Loper Bright restored courts’ authority to determine the law, as opposed to giving agencies the power to decide what their authorizing statutes mean. This, Lyons rightly says, will pose challenges to “FCC initiatives that capitalized on ambiguous language to accomplish the agency’s policy objectives.”

He’s right, and it is amazing to observe that net neutrality regulation—the law governing the provision of internet service—has been a political ping-pong ball. It has absurdly changed (or threatened to change) with each change of political control in the White House. In what kind of banana republic does the law change simply with the election of one candidate or another? That is no “rule of law” country.

SITUATION NORMAL:

A Prudential Way Forward in Trump v. United States (Philip Bobbitt, July 29, 2024, Just Security)

The issue in Trump v. United States, however, turned on the prudential necessities of executive authority that were repeatedly stressed in the majority opinion.

The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.”  They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’” (citations omitted)

If, as I have argued,[7] the reflections of the framers and other observations from the past can be effectively used outside the narrow frame of historical argument per se, the prudential nature of the quoted words should not confuse us. Moreover, prudential imperatives are often invoked both in historical arguments[8] and doctrinal arguments.[9] Where the distinction matters is in cases of first impression like this one. Then the power of historical argument is at its weakest – – we would not want the ratifiers’ original conception of global warfare as a series of naval engagements to govern our construction of the president’s war powers – – and, by definition, doctrine and precedent.  A case of “first impression” is, by definition, unprecedented.

The problem is a prudential one, as evidenced, not contradicted, by the Court’s reference to our founding history:

In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227.

In many respects, the tests on remand to the district court would be the same whether a structural or a prudential rationale were employed: if the alleged act by the president can fairly be said, presuming good faith, to be an example integral to those official duties that are committed to him alone by the Constitution, he enjoys immunity from subsequent indictment. But there can never be valid constitutional authority to orchestrating a constitutional crime—an offense that would be a valid predicate for impeachment.  He may appoint whom he chooses, but he cannot accept a bribe for doing so; he may make peace overtures to a foreign state with whom the United States is at war but he may not do so acting as an agent for that state, betraying his own country;  he may extract a promise from a foreign state to pursue the harassment of his political adversaries but not by impounded congressionally authorized funds; he may pardon any offender he pleases, but it is a constitutional offense to use the pardon power to entice an informant to remain silent in order to obstruct an investigation into the president’s own criminality.

Such a prudential analysis would respond to Justice Ketanji Brown Jackson’s cogent complaint that the majority in Trump simply does not provide a rationale sufficient to guide the lower courts – – or future presidents – – “ex ante.” The prudential approach would provide protection for the president that should be clearly perceived as consistent with our historic commitment to put the State under law, and it would ring fence a subsequent president from turning the powers of the U.S. government on his predecessor as Donald Trump repeatedly threatened to do in the 2024 presidential campaign. The Supreme Court, in Trump, provides the basis for such a prudential approach going forward.

ALWAYS BET ON THE DEEP STATE:

Using Math to Analyze the Supreme Court Reveals an Intriguing Pattern (SARAH ISGUR and DEAN JENS, 06/02/2024, Politico)

Here are some patterns from the Supreme Court’s last term that might surprise you. About 50 percent of the court’s cases were decided unanimously. Only five of 57 cases — just 8 percent — were decided 6-3 with the six Republican appointees all on one side and the three Democratic appointees on the other. Ninety percent of the 57 cases were decided with at least one liberal justice in the majority. Kavanaugh, Roberts, and Barrett were all in the majority over 90 percent of the time, while Justices Jackson, Sotomayor, and Kagan were all more likely to be in the majority than either Samuel Alito or Clarence Thomas. The three liberal justices voted together in fewer than a quarter of the non-unanimous cases, and the six conservatives voted together only 17 percent of the time.

SOLA SCRIPTURA:

Judge: Qualified Immunity Is an Unqualified Disaster: The police-protecting doctrine is legally baseless, costly, and liberty-eroding. (CLARK NEILY, MAY 28, 2024, The Bulwark)

As Judge Reeves explains in his May 20 opinion denying qualified immunity to a Jackson, Mississippi detective who helped frame an innocent man for murder, there are so many problems with that doctrine that it’s hard to know where to start.

First and most fundamentally, the judiciary’s job is to apply law, not make it. And yet, in a blatant act of judicial policymaking, the U.S. Supreme Court read into the nation’s premier civil rights law, 42 U.S.C. §1983, the defense of qualified immunity despite the fact that the statute itself makes no mention of any immunities whatsoever. Judge Reeves notes how absurd it is to suppose that the 1871 law, which was designed to protect newly freed African Americans in particular from the predations of badge-wearing Klansmen and other tyrannical government officials, would have included a defense so broad as to entirely defeat the law’s unambiguous purpose. It makes no sense.

Second, Judge Reeves notes the practical consequences of qualified immunity, which include a free pass for a cop who shot an innocent boy in the leg from eighteen inches away while blazing away at a non-threatening family dog; letting a jailer off the hook who stood and watched without calling 911 as a suicidal prisoner hanged himself with a telephone cord inside his own cell; and finding no “clearly established” right not to be locked up “in a frigid cell, covered in other persons’ feces and forced to sleep naked in sewage” for six days because the only case on point held that “prisoners couldn’t be housed in cells teeming with human waste for months on end.” (The latter case was so obviously wrong that the Supreme Court summarily reversed without briefing or argument.) Another practical consequence according to Judge Reeves is the perpetuation of racial inequality. He notes that black Americans are more frequently subjected to stops, searches, arrests, and lethal force than other Americans, and “qualified immunity then bars many of these individuals from securing justice” when their rights are violated.

It’s activism when the Right ignores Originalism too.

TURNING SOFT:

Hit Man: Gary Johnson is the most sought-after professional killer in Houston. In the past decade, he’s been hired to kill more than sixty people. But if you pay him to rub out a cheating spouse or an abusive boss, you’d better watch your own back: He works for the cops. (Skip Hollandsworth, October 2001, Texas Monthly)

On a nice, quiet street in a nice, quiet neighborhood just north of Houston lives a nice, quiet man. He is 54 years old, tall but not too tall, thin but not too thin, with short brown hair that has turned gray around the sideburns. He has soft brown eyes. He sometimes wears wire-rimmed glasses that give him a scholarly appearance.

The man lives alone with his two cats. Every morning, he pads barefoot into the kitchen to feed his cats, then he steps out the back door to feed the goldfish that live in a small pond. He takes a few minutes to tend to his garden, which is filled with caladiums and lilies, gardenias and wisteria, a Japanese plum tree, and rare green roses. Sometimes the man sits silently on a little bench by the goldfish pond, next to a small sculpture of a Balinese dancer. He breathes in and out, calming his mind. Or he goes back inside his house, where he sits in his recliner in the living room and reads. He reads Shakespeare, psychiatrist Carl Jung, and Gandhi. He even keeps a book of Gandhi’s quotations on his coffee table. One of his favorites is “Non-violence is the greatest force at the disposal of mankind. It is mightier than the mightiest weapon of destruction devised by the ingenuity of man.”

He is always polite, his neighbors say. He smiles when they see him, and he says hello in a light, gentle voice. But he reveals little about himself, they say. When he is asked what he does for a living, he says only that he works in “human resources” at a company downtown. Then he smiles one more time, and he heads back inside his house.

What the neighbors don’t know is that in his bedroom, next to his four-poster bed, the man has a black telephone, on which he receives very unusual calls.

“We’ve got something for you,” a voice says when he answers. “A new client.”

“Okay,” the man says.

The voice on the other end of the line tells him that a husband is interested in ending his marriage or that a wife would like to be single again or that an entrepreneur is ready to dissolve a relationship with a partner.

The man hangs up and returns to his recliner. He thinks about what service he should offer his new client. A car bombing, perhaps. Or maybe a drive-by shooting. Or he can always bring up the old standby, the faked residential burglary.

As he sits in his recliner, his cats jump onto his lap. They purr as he strokes them behind their ears. The man sighs, then he returns to his reading. “Always aim at complete harmony of thought and word and deed,” wrote Gandhi. “Always aim at purifying your thoughts and everything will be well.”

MOONSTRUCK:

The Hotel Guest Who Wouldn’t Leave: Mickey Barreto’s five-year stay cost him only $200.57. Now it might cost him his freedom. (Matthew Haag, March 25, 2024, NY Times)

Much of Mr. Barreto’s story is corroborated by years of court records, but one crucial moment comes from only his account: On that first night, he settled into his room, high above Midtown, along with his partner, Matthew Hannan. Before that night, Mr. Barreto says, Mr. Hannan had mentioned, in passing, a peculiar fact about affordable housing rules that pertain to New York City hotels.

With their laptops open, he claimed, they explored whether the New Yorker Hotel was subject to the rule, a little-known section of a state housing law, the Rent Stabilization Act.

Passed in 1969, the law created a system of rent regulation across the city. But also subject to the law was a swath of hotel rooms, specifically those in large hotels built before 1969, whose rooms could be rented for less than $88 a week in May 1968.

According to the law, a hotel guest could become a permanent resident by requesting a lease at a discounted rate. And any guest-turned-resident also had to be allowed access to the same services as a nightly guest, including room service, housekeeping and the use of facilities, like the gym.

The room becomes, essentially, a rent-subsidized apartment inside a hotel.

Despite the reasonable assumption that what he was undertaking had been orchestrated from the start, Mr. Barreto claimed the idea only took shape when his and Mr. Hannan’s online search stumbled upon the 27th line of a 295-page spreadsheet titled “List of Manhattan Buildings Containing Stabilized Units.”

According to court documents, Mr. Barreto left his room the next morning, rode the elevator to the lobby and greeted a hotel employee at the front desk. He handed over a letter addressed to the manager: He wanted a six-month lease.

The employee dialed the manager, and after a brief exchange, Mr. Barreto was told there was no such thing as a lease at the hotel and that without booking another night, he would have to vacate the room by noon. The couple did not remove their belongings, so the bellhops did — and Mr. Barreto headed to New York City Housing Court in Lower Manhattan and sued the hotel.

In a three-page, handwritten affidavit dated June 22, 2018, Mr. Barreto cited state laws, local codes and a past court case in arguing that his request for a lease made him a “permanent resident of the hotel.” Removal of his items amounted to an illegal eviction, he said.

At a hearing on July 10, in the absence of any hotel representatives to oppose the lawsuit, the judge, Jack Stoller, ruled in Mr. Barreto’s favor. Judge Stoller not only agreed with his arguments; he even cited the same case law as Mr. Barreto and ordered the hotel “to restore petitioner to possession of the subject premises forthwith by providing him with a key.”

Mr. Barreto returned to Room 2565 within days, now as a resident of the hotel — and soon, as its new owner.