1/6 Committee entitled to Eastman docs - crime-fraud exception - Judge Carter

John Eastman v. Bennie G. Thompson and January 6 Commtttee - order compelling disclosure of documents

Plaintiff Dr. John Eastman (“Dr. Eastman”), a former law school dean at Chapman University (“Chapman”), is a “political conservative who supported former President [Donald] Trump” and a self-described “activist law professor.”1 While he was a professor at Chapman, Dr. Eastman worked with President Trump and his campaign on legal and political strategy regarding the November 3, 2020 election. This case concerns the House of Representatives Select Committee to Investigate the January 6 Attack on the US Capitol’s (“Select Committee”) attempt to obtain Dr. Eastman’s emails from his Chapman email account between November 3, 2020 and January 20, 2021. The parties disagree on whether those documents are privileged and thus protected from disclosure. 

***

1. Emails related to and in furtherance of delaying or disrupting the January 6 congressional proceedings 

The Court’s prior orders addressed several email threads related to ongoing or prospective litigation in key battleground states. In the current review, the Court finds 18 similar documents that present a close call. Some emails discuss legitimate litigation strategy: how the electoral votes affect the Campaign’s “legal options”; how the litigation (if successful) might overturn the election results; and how to frame cases for the Supreme Court. Others discuss how the litigation served other goals, like providing support to state electors trying to decertify electoral votes or persuading the public to question the integrity of the election. Although these emails are “sufficiently related” to disrupting the January 6 vote, on balance, the Court cannot conclusively determine that these emails furthered the obstruction of the January 6 proceedings. 

Accordingly, the crime-fraud exception does not apply. There are four documents, however, in which Dr. Eastman and other attorneys suggest that—irrespective of the merits—the primary goal of filing is to delay or otherwise disrupt the January 6 vote. In one email, for example, President Trump’s attorneys state that “[m]erely having this case pending in the Supreme Court, not ruled on, might be enough to delay consideration of Georgia.” This email, read in context with other documents in this review, make clear that President Trump filed certain lawsuits not to obtain legal relief, but to disrupt or delay the January 6 congressional proceedings through the courts. The Court finds that these four documents are sufficiently related to and in furtherance of the obstruction crime. Accordingly, the crime-fraud exception applies, and the Court ORDERS Dr. Eastman to disclose the four documents.

2. Emails related to and in furtherance of the conspiracy to defraud 

Four emails demonstrate an effort by President Trump and his attorneys to press false claims in federal court for the purpose of delaying the January 6 vote. The evidence confirms that this effort was undertaken in at least one lawsuit filed in Georgia. On December 4, 2020, President Trump and his attorneys alleged in a Georgia state court action that Fulton County improperly counted a number of votes including 10,315 deceased people, 2,560 felons, and 2,423 unregistered voters.

 President Trump and his attorneys then decided to contest the state court proceeding in federal court,  and discussed incorporating by reference the voter fraud numbers alleged in the state petition. On December 30, 2020, Dr. Eastman relayed “concerns” from President Trump’s team “about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.” The attorneys continued to discuss the President’s resistance to signing “when specific numbers were included.”  As Dr. Eastman explained the next day: 

Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.

President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them. President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers “are true and correct” or “believed to be true and correct” to the best of his knowledge and belief. The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public. 

The Court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States. Accordingly, the Court ORDERS Dr. Eastman to disclose these four communications to the Select Committee.

The Yale Law Journal - A Debate on the Future of the Legal Profession: Increased Nonlawyer Participation

The Yale Law Journal - A Debate on the Future of the Legal Profession: Increased Nonlawyer Participation

Novak-Parma - Onion Amicus Brief in Supreme Court

Novak-Parma - Onion Amicus Brief.pdf

 

 

5th Circuit 6-5 refuses en banc review of order barring SEC enforcement actions before Administrative Law Judges

The majority of the 5th Circuit Court of Appeals last year denied the government's petition for en banc review of  Jarkesy v. SEC, 34 F.4th 446, 449 (5th Cir. 2022).  A divided panel held (2-1) that when the Securities and Exchange Commission, asserting fraud, brings a civil law enforcement action, the defendant is entitled to a trial by jury.   The majority opinion by Jennifer Walker Elrod - the Harvard Federalist Society's  2018 alumni of the year - has now been allowed to stand.  

Judge Elrod evoked Thomas Jefferson, and other the founders for whom "v)eneration of the jury as a safeguard of liberty" was an important element of the grievances against the Crown which led to independence.  As she framed the issue "The Seventh Amendment guarantees  Petitioners  a  jury  trial  because  the  SEC’s  enforcement action is akin to traditional actions at law to which the jury trial right attaches." 

The Solicitor General petitioned the United States Supreme Court for a writ of certiorari.  In case # 22-589  the Department of Justice has addressed the Seventh Amendment and the so-called "non-delegation doctrine". 

The government's petition for certiorari , which the court granted in June 2023, poses three questions:

1. Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment. 

2. Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine.

3. Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection. 

The Seventh Amendment to the United States Constitution preserves the English common law right to jury trial in civil actions in controversies in excess of $20.  The right of trial by jury, stunningly recognized by the Fifth Circuit in Jarkesy v. SEC is rooted not in Congressional intent - but rather by inference from the 7th Amendment which declares that the common law right of trial by jury "shall be preserved".   No such thing as an administrative agency's civil enforcement action was known at common law. But adversaries of the SEC have asserted   a close analogy to the historic action for debt - which was a "law court's" and therefore afforded a right to trial by jury.

In  SEC v. Lipson, 278 F.3d 656, 662 (7th Cir. 2002)  Richard Posner held that a defendant was entitled under Tull v. U.S., 481 U.S. 412, 414 (1987) to a jury trial as to liability when the SEC sought a civil money penalty

The modern state has developed a large cadre of Administrative Law Judges.  They hear Social Security disability cases, labor disputes, and enforcement actions under the Securities Act of 1934. But even before the recent enunciation of the "major questions doctrine" the conservative majority of the Supreme Court - as voiced by John Roberts in City of Arlington v. FCC (2013) -  has demonstrated deep hostility to the "administrative state".   In the Roberts view  consolidation  of powers in an administrative agency threatens tyranny. The Chief Justice there deplored the Federal Communications Commission for “as a practical matter” exercising “legislative power by promulgating regulations”, “executive power by policing compliance.. and judicial power by adjudicating enforcement actions act imposing sanctions”.  Such an “accumulation of all powers...may justly be pronounced the very definition of tyranny”, he wrote, citing the gospel according to James Madison in The Federalist No. 47.  Nor is this an oddity according to Roberts as such “accumulation...is a central feature of modern American government.”

 The drumbeat of hostility is plain.  Judge Elrod, for the divided panel majority, rejected the ALJ system of agency enforcement of its own laws and regulations, saying:

Trial by jury therefore is a “fundamental” component of our legal system “and remains one of our most vital barriers to governmental arbitrariness.” Reid v. Covert, 354 U.S. 1, 9–10 (1957). “Indeed, ‘[t]he right to trial by jury was probably the only one universally secured by the first American state constitutions . . . .’” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 341 (1979) (Rehnquist, J., dissenting) (quoting Leonard Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 (1960)).

As historian John Fabian Witt demonstrated in Patriots and Cosmopolitans, Republican trial lawyers trusted jurors but mistrusted Roosevelt's "alphabet agencies".  Former Harvard Dean Roscoe Pound campaigned with San Francisco "King of Torts" Melvin Belli to preserve the civil jury system for private wrongs. But in the past three decades conservatives, spearheaded by then Speaker Newt Gingrich's  Contract with America,  disparaged civil litigation as little more than extortion to create "settlement value".  In 1988 Antonin Scalia spurned judicial recognition of implied rights of action.  In Thompson v. Thompson  (1988) he demanded "“an actual congressional intent to create a private right of action.” 

Dissent in the 5th Circuit

Although the panel decision can expect a warm reception by the Supreme Court's conservative super-majority, the impact will be severe on the civil justice system of recognizing a right of jury trial for what has been the bread and butter of the ALJ corps. The five dissenters to the Circuit's denial of a motion for en banc review embrace the dissent below, saying:

The Seventh Amendment “preserve[s]” the right to a jury trial in civil cases. U.S. CONST. amend. VII. But Congress may assign factfinding functions and initial adjudications to administrative forums without a jury if “the Government sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact.” Atlas Roofing Co. v. Occupational Safety & Health Rev. Comm’n, 430 U.S. 442, 450 (1977). A public right, at its core, is a matter “which arise[s] between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” Crowell v. Benson, 285 U.S. 22, 50 (1932). (emph. added)

The panel majority below recognized the public rights exception to the jury trial right but reasoned that the SEC was enforcing wholly private rights.  The dissenters are dismissive, saying:

Under Atlas Roofing and a fair reading of Granfinanciera [, S.A. v. Nordberg, 492 U.S. 33, 60 (1989)] there is no question that the SEC’s enforcement action against Petitioners in this matter for violations of the securities laws involves “public rights.” 

The majority turned to Tull which explained that "a civil penalty was a type of remedy that could only be enforced in a court of law" where the jury trial was the norm.  But the Granfinanciera court ruled that the court must consider  whether affording a jury trial would "dismantle the statutory scheme (or) impede swift resolution" of the statutory claims.  At this point the deep anti-regulatory hostility of Republican conservatives like the majority of the 5th Circuit is likely determinative.  But the circuit split - so nose counting on the Supreme Court is the next step.  Where we know that there is deep hostility to the "administrative state", a residual conservative discomfort with the legacy of Franklin Delano Roosevelt's New Deal.

The dissenters also address the panel's resort to the principle the Court has been calling the "non-delegation doctrine".  The theory is that when Congress plans something earth shaking intent will have to be clearly shown, not inferred from circumstance.  Of that "doctrine" I am deeply unsympathetic.  But I'll leave that issue - powerfully rejected by the dissenters - to another day.

- GWC 

first posted October 25, 2022

updated September 28, 2023

CPC Congress- Full text of resolution on Party Constitution amendment-Xinhua

When I was in the Peace Corps in India 1967-1969 we had few news sources.  Mornings began with the short wave radio news broadcasts of America, India, Moscow, and  Peking.    Radio Moscow justified the invasion of Czechoslovakia.  And Radio Peking celebrated the Great Proletarian Cultural Revolution" while denouncing the "Soviet Renegade Revisionist Clique.  The `GPCR' was later renounced as the work of the Gang of Four.

We heard VOA dissemble about the Tet offensive in Vietnam, the tragic murders of Martin Luther King, Jr., and Robert F. Kennedy.  Then the reports of police attacking demonstrators at the Chicago Democratic Convention. It did not lead to a sense of American triumphalism.  Since then I have never engaged in American exceptionalism.

The Communist Party of China - the 共产党 - deserves to be recognized as history's most successful political party.  They have defeated the Japanese conquerors and transformed the country from a poor rural country to a modern urban, industrial powerhouse. At its 20th Congress the Party had no hesitation about heaping praise on itself. So far, so good.  

But as an organization that claims science and mass mobilization as its guiding methods it has a strange tendency to lionize its leaders.  And a failure to embrace the core Marxist insight that when opposites clash they produce the new.  That process demands freedom to contest leadership.

One would hope that a determined modesty would have followed the debacle of the Gang of Four.  That was the near overthrow of the Communist Party by Mao Tse Tung and his closest allies.   But today's celebration and exaltation of Xi Jinping points in the other direction.  His "thought" is to be embedded in the pantheon as declared in this resolution amending the Constitution of the Party (not the country).

-GWC

October 23, 2022

 

CPC Congress) Full text of resolution on Party Constitution amendment-Xinhua

中国共产党第二十次全国代表大会关于《中国共产党章程（修正案）》的决议

The Congress notes that since entering the new era, the Party and the country have faced a situation of unparalleled complexity, a fight of unparalleled graveness, and tasks of unparalleled difficulty in promoting reform, development, and stability. Establishing Comrade Xi Jinping's core position on the Party Central Committee and in the Party as a whole and establishing the guiding role of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era has enabled the Party to successfully resolve the acute problems and challenges undermining its long-term governance, the security and stability of the country, and the wellbeing of the people, to remove serious hidden dangers in the Party, the country, and the military, and to ultimately set the rejuvenation of the Chinese nation on an irreversible historical course. The establishment of both Comrade Xi Jinping's core position on the Party Central Committee and in the Party as a whole and the guiding role of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era represents a major political achievement for the Party in the new era and a decisive factor in the historic successes and changes in the cause of the Party and the country. All Party members must acquire a deep understanding of the decisive significance of this major achievement, more conscientiously uphold Comrade Xi Jinping's core position on the Party Central Committee and in the Party as a whole and uphold the Central Committee's authority and its centralized, unified leadership, fully implement Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, and closely follow the Party Central Committee with Comrade Xi Jinping at the core in thinking, political stance, and action.

The Congress calls on Party organizations at all levels and all Party members to follow the firm leadership of the Party Central Committee with Comrade Xi Jinping at the core, hold high the great banner of socialism with Chinese characteristics, and carry forward the great founding spirit of the Party. They should become more conscious of the need to maintain political integrity, think in big-picture terms, follow the leadership core, and keep in alignment with the central Party leadership; have firm confidence in the path, theory, system, and culture of socialism with Chinese characteristics; uphold Comrade Xi Jinping's core position on the Party Central Committee and in the Party as a whole and uphold the Central Committee's authority and its centralized, unified leadership; and more purposefully study, observe, apply, and uphold the Party Constitution. This will ensure that the entire Party strives in unity to build a modern socialist country in all respects and advance national rejuvenation on all fronts.

`Independent State Legislature' case- Moore v. Harper Supreme Court sets December 7 argument

 

The case of Moore, Speaker of the North Carolina House of Representatives vs. Harper, to be argued on December 7 poses the question as "whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives ... prescribed ... by the Legislature thereof." The challengers assert that state courts cannot exercise their customary equitable discretion regarding time, place and manner of voting in both state and federal  . 

Former federal judge and conservative superstar Michael Luttig, writing in The Atlantic discusses the doctrine's flaws and dangerous consequences. The graves stakes of the so-called "independent state Legislature" theory are so great that the Supreme Court's docket is loaded with amicus briefs.    

 Elections - even for federal office - are conducted by the states.  They set their own dates, places, times, and voter qualifications.  But when problems arise like problems with reliable mail delivery, or pandemic quarantines state courts and secretaries of state have often made adjustments in dates for mailing, receipt, and counting of ballots to achieve access.  As the amicus brief of State Supreme Court judges argues the Elections Clause does not deprive state courts of their own state constitutional power to review state laws - including those which govern state administration of federal elections.

It is helpful to remember that the 1776 Declaration of Independence was a ratification of declarations of self government by then colonies. It was followed by a decade of self-government experience during the period of the Articles of Confederation.  Leading scholars of state constitutional law  Lawrence Friedman and Robert F. Williams explain in their amicus brief that "the Framers who drafted and proposed the Constitution of 1787—and the founding generation that ratified it— understood the term “Legislature” as used in the Elections Clause to refer to a lawmaking authority created, and bound, by a state’s constitution and laws."

But a couple of years ago a dubious and unprecedented textual interpretation emerged: the U.S. Constitution refers to Legislatures, so state courts  and election officials' hands are tied by the date, and methods set by Legislatures are untouchable by judges, governors, or election officials.  The Supreme Court's six conservatives have each welcome this notion. Now the entire court will hear a North Carolina cade to root everything in the Legislature at the expense of any othe element of state government.

The Yale Law Journal - Forum: The Pitfalls and False Promises of Nonlawyer Ownership of Law Firms

The Yale Law Journal - Forum: The Pitfalls and False Promises of 

Nonlawyer Ownership of Law Firms

Stephen P. Younger

ABSTRACT. Whether nonlawyers should have ownership roles in law firms has been and remains a hotly debated topic. The debate concerns potential reforms to Rule 5.4 of the American Bar Association’s Model Rules of Professional Conduct, which sets guidelines for maintaining the professional independence of lawyers, as well as the impact of those revisions on the legal profession. Although advocates for such reform argue that nonlawyers must be allowed ownership roles in law firms in order to foster innovation and increase access to legal services, many lawyers have raised significant concerns about the impact that nonlawyer ownership would have on the independence of lawyers. Lawyers have concerns about allowing nonlawyers—who have not sworn to uphold the ethical obligations that attorneys promise to uphold when becoming members of the bar—to have decision-making authority in the day-to-day practice of law. There is also no evidence that nonlawyer ownership actually improves access to justice for the needy. This Essay argues against rewriting Rule 5.4 to allow nonlawyer ownership of law firms. It concludes that nonlawyer ownership not only fails to solve the problems that advocates of reform promise it will address but in fact creates meaningful risks for the legal profession.

INTRODUCTION

Nonlawyer ownership of law firms (NLO) has been a hotly debated issue in the legal profession for years. The debate concerns potential reforms to Rule 5.4 of the American Bar Association’s (ABA) Model Rules of Professional Conduct, which sets guidelines for maintaining the professional independence of lawyers. One of Rule 5.4’s key provisions prohibits lawyers from forming business entities with nonlawyers in order to practice law and forbids entities owned or controlled by nonlawyers from having ownership stakes in law firms.1 Rule 5.4 also forbids lawyers from sharing fees with nonlawyers.2 Rule 5.4 has long served as an effective method of preventing ethical concerns about the professional independence of members of the bar, and its continued vitality was recently reaffirmed by the ABA’s House of Delegates.3

Nonetheless, some individuals and businesses—although not many lawyers—are seeking to revise Rule 5.4 to allow for increased possibilities for NLO. Advocates for such reform, such as Ralph Baxter,4 claim that reforming Rule 5.4 and similar restrictions on nonlawyer involvement in the practice of law is the only viable option for increasing access to justice and fostering innovation in the legal field.5 Baxter goes further and asserts that by refusing to reform Rule 5.4, lawyers have ignored their duty to solve the access-to-justice crisis in the United States, arguing that the profession has some undefined duty to ensure “legal service for all.”6 As discussed below, these assertions are unpersuasive, and NLO has not proven to be effective in addressing the access-to-justice crisis.

This Essay argues against rewriting Rule 5.4 to allow nonlawyer ownership of law firms. It concludes that NLO not only fails to solve the problems that advocates of reform promise it will address, but in fact creates meaningful risks for the legal profession. Part I provides a brief overview of Rule 5.4 and the current state of the NLO debate. Part II discusses the bar’s historical opposition to reforming Rule 5.4 and explains the concerns raised about nonlawyers increasing their involvement in the legal profession. Part III responds to arguments raised by Baxter and others in favor of easing Rule 5.4’s restrictions, including the failure of NLO to increase access to justice and the myth that NLO is required to foster innovation in the legal profession.

I. THE CURRENT STATE OF THE NLO DEBATE

A. Overview of Rule 5.4

The Model Rules of Professional Conduct are a set of model legal-ethics rules promulgated by the ABA that states typically follow, with modifications made to reflect local practice in each state.7 Model Rule 5.4 addresses the professional independence of lawyers.8 Rule 5.4, which has been adopted in some form by virtually every state, prohibits lawyers from forming a partnership with nonlawyers if any of the partnership’s activities consist of the practice of law and limits the circumstances under which a lawyer may form a professional corporation or association authorized to practice law for profit.9 Rule 5.4 also generally prohibits lawyers from sharing legal fees with nonlawyers.10

The purpose of Rule 5.4—which the Comments to the Rule expressly state—is to prevent nonlawyers from interfering with lawyers’ independent professional judgment and to uphold the obligation of lawyers to maintain their independent professional judgment.11 The restrictions imposed by the Rule aim to address the concern that if nonlawyers, who are not bound by the Rules of Professional Conduct, have a financial interest in a lawyer’s profits, they might prioritize profit over the duties the lawyer owes to clients and adversely influence a lawyer’s conduct.

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US bishops pioneered a self-serving invocation of 'religious liberty' | National Catholic Reporter

US bishops pioneered a self-serving invocation of 'religious liberty' | National Catholic Reporter

By Daniel Horan, OFM

Last week, I read a guest essay in The New York Times by Steven Paulikas, an Episcopal priest in Brooklyn, titled "Same-Sex Marriage Is a Religious Freedom." As a member of the Anglican Communion and an ordained minister in the Episcopal Church, Paulikas was able to say without reservation that his "wedding was an exercise of the freedom not only to be married under equal protection of the law but also to practice our religion."

Obviously, the Roman Catholic position is different, as it does not currently recognize the sacramental validity of same-sex marriages. And yet, since the Second Vatican Council, the Catholic Church does recognize the fundamental human right to religious freedom.

As the church's Declaration on Religious Freedom, Dignitatis Humanae, states, "The human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits."

While the Roman Catholic Church would not internally recognize the sacramental validity of same-sex marriage, this theological and disciplinary practice of restricting marriage ad intra exists in tension with the church's affirmation of the fundamental human right that exists for others to exercise their own religious traditions, including equal access to marriage within their churches and a pluralistic, constitutional society.

However, as Paulikas rightly notes about the current social and political climate in the United States, "a powerful political, legal and social movement is poised to prevail in its mission to relegate the marriages of L.G.B.T.Q. people to second-class status in name of 'religious freedom.' It seems its true goal is not to advance its advocates' religious freedom but to restrict ours."

Many Catholic leaders, politicians, academics and ordinary people alike are part of this anti-religious-liberty movement, oftentimes claiming without irony to do so in the name of "religious freedom."

From a Catholic perspective, it is also important to note that religious freedom is a relatively new part of the universal teaching of the church, something that can only be traced back to the 1962-65 Second Vatican Council (note to those inclined to invoke the teaching yet reject the council). Therefore, there is also a clear theological and pastoral need to clarify how it is being understood and deployed.

Since at least the social and political battles over the Affordable Care Act more than a decade ago, the U.S. bishops' conference has invoked "religious freedom" to justify its personal objection to certain policies such as medical contraceptive coverage through insurance for employees.

The church itself teaches that all people have "a right to religious freedom" and that, as both Dignitatis Humanae and the Pastoral Constitution on the Church in the Modern World, Gaudium et Spes, state, even Catholic Christians have recourse to their consciences. Rather than recognize this, the bishops have instead sought to impose their religious views on others.

Related: 'New Right' academics argue for biblical lawmaking at Steubenville conference

It seems that in recent years this sort of distorted and self-serving invocation of "religious freedom" has been used in more solipsistic and discriminatory ways. Such appears to have been the case with the agenda and lineup of speakers at a conference at Franciscan University of Steubenville, Ohio, earlier this month.

As my NCR colleague Brian Fraga reported, despite their different contexts and backgrounds (from university professors to media personalities to political candidates), the presenters shared a common sense of victimhood in decrying the current state of a pluralistic nation in which the right to religious freedom is enshrined in its constitution.

Fraga wrote: "Disaffected by secularization, social media censorship, the legal recognition of same-sex marriage and the widening societal acceptance of LGBTQ rights, the conference speakers described an America in crisis, where tyrannical forces in 'Big Tech,' media, academia, government and industry are cracking down on and isolating social conservatives and religious traditionalists in the United States."

In the post-Trump age, it should come as no surprise that many of those who share his political and ideological views are immune to the shame associated with rank hypocrisy. That is why I was not at all surprised to read that, as Fraga reported, "though the U.S. Constitution's First Amendment prohibits the establishment of an official state religion, several of the conference's Catholic speakers articulated their dissatisfaction with a religiously neutral American civil society."

The same people who work themselves up to a fever pitch about how their religious freedom is under attack are using the language of religious freedom to deny precisely this constitutional right to others.

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A Congressional Review Act for the Major Questions Doctrine by Christopher J. Walker :: SSRN

A Congressional Review Act for the Major Questions Doctrine by Christopher J. Walker :: SSRN

Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate on a question of great economic or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond: by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could establish a fast-track legislative process that bypasses the Senate filibuster and similar slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of such a joint resolution would amend the agency’s governing statute to authorize expressly the regulatory power the agency had claimed in the invalidated rule. In so doing, Congress would more easily have the opportunity to decide the major policy question itself—tempering the new doctrine’s asymmetric deregulatory effect and helping to restore Congress’s primary legislative role in the modern administrative state.

Keywords: administrative law, nondelegation doctrine, major questions doctrine, legislation

Suggested Citation:

Walker, Christopher J., A Congressional Review Act for the Major Questions Doctrine (September 26, 2022). Harvard Journal of Law and Public Policy, Vol. 45, Forthcoming 2022, Available at SSRN: https://ssrn.com/abstract=4230476 or http://dx.doi.org/10.2139/ssrn.4230476

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

Felix Frankfurter at his 1939 confirmation hearing

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment

by Brad Snyder

Norton, 979 pp., $45.00

Reviewed by Jed S. Rakoff (D.J, SDNY)


Over the course of American history, the US Supreme Court has usually been the most conservative of the three branches of government, often to a reactionary extreme. Indeed, an objective observer might well conclude that it has frequently encouraged our nation’s darkest tendencies.

In the decades immediately preceding the Civil War, the Court not only rigidly enforced slave laws but also declared that even free African Americans were not US citizens (Dred Scott v. Sandford, 1857). It reduced Native Americans from sovereign nations to wards of the state (Cherokee Nation v. Georgia, 1831), which was free to remove them from their treaty-prescribed lands and send them on the deadly Trail of Tears to bleak reservations hundreds of miles west. In the decades following the Civil War, it undermined Reconstruction (the Civil Rights Cases of 1883), legitimized Jim Crow (Plessy v. Ferguson, 1896), denied women the right to vote (Minor v. Happersett, 1875), and treated union activities as illegal conspiracies (Loewe v. Lawlor, 1908).

In the first decades of the twentieth century, the Court went to great lengths to hold progressive legislation unconstitutional (for example, in Lochner v. New York, 1905), especially laws that sought to protect women and children from exploitation (Adkins v. Children’s Hospital, 1923). And when, in response to pressure from (and ultimately appointments by) President Franklin Roosevelt, the Court somewhat relaxed its disapproval of federal social welfare legislation, it continued in many cases to show a callous disregard for the rights of individuals and minorities, as demonstrated by such decisions as its cavalier approval of the internment of loyal American citizens of Japanese descent during World War II (Korematsu v. United States, 1944).

There was a brief period in the 1950s and 1960s when the Court sought to recognize its past mistakes and move forward, and while the advent of the Warren Court in 1953 was something of a fluke (no one remotely expected that Earl Warren and William Brennan—both nominated by a Republican president, Dwight Eisenhower—would develop into the great champions of liberty they became), in its relatively short duration it demonstrated how the Court could, if it wished, be a leader in the enhancement of civil rights and the protection of minorities. But beginning in the 1970s, the Court gradually resumed its traditional conservative stance, for example by limiting the Warren Court’s efforts to combat police misconduct (City of Los Angeles v. Lyons, 1983). And now, thanks to President Donald Trump’s appointments, the current majority has reduced some of the Court’s most progressive past decisions to ashes.

What accounts for the Court’s being so often on the wrong side of progress and history? Democratic Justice, an impressive new biography of Felix Frankfurter by Brad Snyder, a professor at the Georgetown University Law Center, gives us a chance to consider that question. Though as a lawyer and academic he was a great liberal, as a justice Frankfurter increasingly facilitated the Court’s conservative tendencies. Snyder, who greatly admires him, contends that his principles, formed early in his adult life, remained consistent throughout his career. But a more detached observer may well view it as a foolish consistency.

'New Right' academics argue for biblical lawmaking at Steubenville conference | National Catholic Reporter

Franciscan University of Steubenville, Ohio is on a mission: to restore to the ascendancy traditional Catholicism as they understand it.  Their recent conference  featured a who's who of the American Catholic right wing, including GOP Senate candidate J.D. Vance.

One bright light is Adrian Vermeule.  He presented a paper defending the administrative sate erected in the first instance by Franklin D. Roosevelt.  In conversation with  Patrick J. Smith of the Catholic integralist online journal  The Josias  Vermeule struck a note uncommon on the American right: a defense of the "alphabet agencies" of the Roosevelt New Deal   This is not a surprise, as Vermeule co-authored Law and Leviathan.  With  Cass Sunstein, a key figure in the Obama and Biden administration's regulatory strategies, Vermeule mounted an ethical defense of the regulatory state.  He extended that view in his recent book Common Good Constitutionalism.

Vermeule continued that defense in Steubenville.  According to NCR reporter Brian Fraga :

Harvard Law Professor Adrian Vermeule, who has advocated for the kind of "common-good constitutionalism" that would empower the state to legislate public morality, also spoke at the conference. He focused his remarks on defending the authority of the federal bureaucracy, also called the "administrative state," to uphold the common good.

"There is no alternative to the administrative state. There is no dismantling of it. To dismantle it would be to dismantle the American constitutional order," said Vermeule, who also defended the prerogatives of federal agencies in a panel entitled, "The Wisdom of the New Deal Tradition."

 "The New Deal was a spectacular success," Vermeule said. P. J. Smith during the panel said that reexamining the New Deal in a favorable light had been "an unbroken thread" in the conference.

When Catholic conservatives speak of liberalism they have in mind John Stuart Mill who preached a philosophy of self-realization. Modern liberalism in their view is grounded in the cultivation of the individual, rather than a life of service, an ancient  vision. Theirs is an embrace of German-American political philosopher Leo Strauss who argued, according to Edmund Waldstein, O. Cist in The Josias "The premodern natural law doctrines taught the duties of man; if they paid any attention at all to his rights, they conceived of them as essentially derivative from his duties. "

Vermeule writes: "courts should defer to public determinations [of the public interest] so long as the public authority acts rationally and with a view to the legitimate public purposes of peace, justice, and abundance."

Vermeule's  critiques are directed at classical liberalism - particularly at  John Stuart Mill'  who posits "happiness" as a goal.  Mill wrote that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."  Taken to its logical conclusion, Vermeule says, this is a "grotesque parody of the common good of the community". 

It is hard to know just where a common good-oriented conservatism would lead - aside from, presumably, a narrow, traditional sexuality.  They abjure divorce, contraception, abortion, euthanasia, and homosexuality.  Yet they embrace integralism - the Catholic social ethic that society and the state should be ordered to the common good rather than to protect the right of the individual.  Their philosophy - implanted on the political right now - could accommodate monarchy and full blown state socialism, it appears to me.

- GWC   October 17, 2022

'New Right' academics argue for biblical lawmaking at Steubenville 

conference | National Catholic Reporter

STEUBENVILLE, OHIO — Franciscan University of Steubenville, the conservative Catholic university in eastern Ohio, hosted a two-day conference in October where leading "New Right" nationalists, "post-liberal" conservatives and Catholic integralists declared that America's "liberal consensus" has come to an end.

Several speakers articulated a vision of the United States where domestic manufacturing is not only revived and globalization reigned in, but where traditional Christian morality is restored to a central place in society and mainstream culture, and where leaders in government are comfortable using political power to enforce those religious values and punish "woke" progressives.

"Overt biblically grounded lawmaking, a concomitant biblically informed constitutional jurisprudence, and an approach to God in the public square that we might think of as an ecumenical integralism, represents our only hope for recovery at this late hour in our ailing, decadent republic," Josh Hammer, a Newsweek opinion editor, said during one panel discussion.

The conference, entitled "Restoring a Nation: The Common Good in the American Tradition" and held Oct 7-8, featured a who's who lineup of influential speakers in the national conservative movement, where grassroots momentum has been building on the right since former President Donald Trump in 2016 shook up the Republican establishment with his nationalistic rhetoric, hardline partisanship and bare-knuckled style of political combat against his liberal critics.

Disaffected by secularization, social media censorship, the legal recognition of same-sex marriage and the widening societal acceptance of LGBTQ rights, the conference speakers described an America in crisis, where tyrannical forces in "Big Tech," media, academia, government and industry are cracking down on and isolating social conservatives and religious traditionalists in the United States.

"Look around you. … Does the world look free?" said Sohrab Ahmari, a former New York Post op-ed editor and current fellow at Franciscan University's Veritas Center for Ethics in Public Life, who helped organize the conference. Ahmari spoke about "privatized coercion" in the market economy that he said subjugates American consumers and workers.

"If China treated workers the way Amazon does, American elites would be outraged," Ahmari said.

Rachel Bovard, senior director of policy at the Conservative Partnership Institute think tank, attacked the "woke industrial complex," which she described as the "axis of Big Tech, Chinese and corporate totalitarianism." She characterized the Pentagon — which in 2021 announced new guidelines to allow transgender people to enlist and serve openly — as "woke."

"If the last 30 years has taught us anything, it's that the left's fascist orgy is not somehow going to abate," Bovard said. "No one knows what lunacy is coming next, but we all know what's eventually coming: normalized pederasty, forced euthanasia, postnatal abortion, persecuting dissident faiths, disqualifying religious traditionalists and political conservatives from banking, property rights and public benefits."

To prevent that dystopian future, several conference speakers called for a restoration of Christian values, where abortion and gender reassignment surgeries are outlawed, traditional marriage and large families are supported by generous state subsidies and paid parental leave, where prayer is readmitted to public schools and commerce is banned on Sundays.

In Conversation: Honoring ideological divides on and off campus | by Conversations on Jesuit Higher Education | Aug, 2022 | Conversations on Jesuit Higher Education

In Conversation: Honoring ideological divides on and off campus | by Conversations on Jesuit Higher Education | Aug, 2022 |  

How can Jesuit institutions effectively respond to the profound ideological division that threatens U.S. society today? What does it mean to embrace a Jesuit, Catholic mission in such a way that it can help our campus communities and our nation to navigate the turbulence through which we are living?

In early May 2022, three high-profile legal scholars and leaders in Jesuit higher education sat down together to address these questions.

Lisa A. Kloppenberg, now a professor of law and special assistant to the vice president for university relations at Santa Clara University, was then serving as interim president at Santa Clara, a role which she assumed after many years as law dean, then as provost there. Vincent D. Rougeau was completing his first year as president of the College of the Holy Cross, after having served a decade as dean of Boston College Law School. Eduardo M. Peñalver of Seattle University was also completing his first year as president, a role to which he was appointed after serving as dean of Cornell University Law School.

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

Felix Frankfurter at his nomination hearing in 1939

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

by Jed S. Rakoff (U.S. District Judge, SDNY]

Felix Frankfurter was renowned as a liberal lawyer and advocate. Why did he turn out to be such a conservative Supreme Court justice?

Over the course of American history, the US Supreme Court has usually been the most conservative of the three branches of government, often to a reactionary extreme. Indeed, an objective observer might well conclude that it has frequently encouraged our nation’s darkest tendencies.

In the decades immediately preceding the Civil War, the Court not only rigidly enforced slave laws but also declared that even free African Americans were not US citizens (Dred Scott v. Sandford, 1857). It reduced Native Americans from sovereign nations to wards of the state (Cherokee Nation v. Georgia, 1831), which was free to remove them from their treaty-prescribed lands and send them on the deadly Trail of Tears to bleak reservations hundreds of miles west. In the decades following the Civil War, it undermined Reconstruction (the Civil Rights Cases of 1883), legitimized Jim Crow (Plessy v. Ferguson, 1896), denied women the right to vote (Minor v. Happersett, 1875), and treated union activities as illegal conspiracies (Loewe v. Lawlor, 1908).

In the first decades of the twentieth century, the Court went to great lengths to hold progressive legislation unconstitutional (for example, in Lochner v. New York, 1905), especially laws that sought to protect women and children from exploitation (Adkins v. Children’s Hospital, 1923). And when, in response to pressure from (and ultimately appointments by) President Franklin Roosevelt, the Court somewhat relaxed its disapproval of federal social welfare legislation, it continued in many cases to show a callous disregard for the rights of individuals and minorities, as demonstrated by such decisions as its cavalier approval of the internment of loyal American citizens of Japanese descent during World War II (Korematsu v. United States, 1944).

There was a brief period in the 1950s and 1960s when the Court sought to recognize its past mistakes and move forward, and while the advent of the Warren Court in 1953 was something of a fluke (no one remotely expected that Earl Warren and William Brennan—both nominated by a Republican president, Dwight Eisenhower—would develop into the great champions of liberty they became), in its relatively short duration it demonstrated how the Court could, if it wished, be a leader in the enhancement of civil rights and the protection of minorities. But beginning in the 1970s, the Court gradually resumed its traditional conservative stance, for example by limiting the Warren Court’s efforts to combat police misconduct (City of Los Angeles v. Lyons, 1983). And now, thanks to President Donald Trump’s appointments, the current majority has reduced some of the Court’s most progressive past decisions to ashes.

What accounts for the Court’s being so often on the wrong side of progress and history? Democratic Justice, an impressive new biography of Felix Frankfurter by Brad Snyder, a professor at the Georgetown University Law Center, gives us a chance to consider that question. Though as a lawyer and academic he was a great liberal, as a justice Frankfurter increasingly facilitated the Court’s conservative tendencies. Snyder, who greatly admires him, contends that his principles, formed early in his adult life, remained consistent throughout his career. But a more detached observer may well view it as a foolish consistency.

Controversies in Catholic education prompt collection on conscience | National Catholic Reporter

Controversies in Catholic education prompt collection on conscience | National Catholic Reporter

September 19, 2022

By Michael Sean Winters

In the years since the Second Vatican Council, and setting aside liturgy, which invites uniquely passionate debates, no issue has been as much debated and as foundational to a host of discussions, as that of conscience. From the council's achievement in promulgating Dignitatis Humanae, the Declaration on Religious Freedom, to the reception — and rejection — of Pope Paul VI's Humanae Vitae in 1968, through Pope John Paul II's 1993 encyclical on moral theology Veritatis Splendor, the U.S. church's struggle with the Barack Obama administration over the contraception mandate, to Pope Francis' 2016 apostolic exhortation Amoris Laetitia, conscience is both at the center of the issue and part of the foundation of the discussion.

Conscience is also the kind of issue about which the church's rich and nuanced teaching regrettably sometimes gives way to bumper sticker sloganeering. During the debate over the contraception mandate, it became clear to me that for many Americans, conscience was what John Henry Newman condemned as the false notion of conscience held in his day in his famous Letter to the Duke of Norfolk:

When men advocate the rights of conscience, they in no sense mean the rights of the Creator, nor the duty to Him, in thought and deed, of the creature; but the right of thinking, speaking, writing, and acting, according to their judgment or their humour, without any thought of God at all. They do not even pretend to go by any moral rule, but they demand, what they think is an Englishman's prerogative, for each to be his own master in all things, and to profess what he pleases, asking no one's leave, and accounting priest or preacher, speaker or writer, unutterably impertinent, who dares to say a word against his going to perdition, if he like it, in his own way.

Conscience, in Catholic theology, is the opposite of willfulness.  

A new book, Conscience and Catholic Education: Theology, Administration, and Teaching, edited by Kevin Baxter and David DeCosse (DeCosse is a contributor to NCR), brings together several essays that focus broadly on issues of conscience encountered in the educational field. The essays are uneven but important. In the United States, where Catholic education has such a large footprint and yet our theology of conscience is so easily abused, attending to the issues raised is critical.

The two strongest essays are both from lawyers. Sister of Charity of Nazareth Mary Angela Shaughnessy, who is a distinguished fellow at Loyola Marymount University in Los Angeles, examines which "legal or Constitutional concepts can help Catholic school administrators think respectfully through these difficult decisions" pertaining to non-Catholic faculty and students, as well as Catholic faculty and students who have made conscientious decisions at odds with church teaching.

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