Month: January 2024

I have previously criticized Texas’s badly flawed argument that illegal immigration and cross-border drug smuggling qualify as an “invasion,” thereby triggering the state’s constitutional authority to “engage in war” in response (see also here). Prominent legal scholars Frank Bowman (Univ. of Missouri) and Steve Vladeck (Univ. of Texas) have recently posted articles on the same topic, at Just Security and Lawfare, respectively.

Bowman offers a detailed originalist critique of the invasion argument, surveying a number of relevant founding-era sources:

Throughout the Constitutional Convention and the state ratification debates that followed, delegates and commentators used the term “invasion” over and over. With a handful of exceptions where “invasion” is used metaphorically, as when referring to an “invasion of rights,” the word invariably refers to a hostile armed incursion into or against the territory of the states or the nation, an incursion that must be met with a military response….

Section 10 of Article I reserves to the national government exclusively the conduct of foreign policy. It also prohibits states from maintaining regular armies and navies in time of peace, and absolutely bars them from “engag[ing] in War, unless actually invaded, or in such imminent danger as will not admit of delay.”

In other words, the constitutional response to “invasion” is “war.” Section 10, when read together with the provision of Article I, Section 8, that grants Congress the power “to declare war,” confers the responsibility for national defense – for making war – on the national government. The Constitution leaves only one narrow exception for emergencies in which states can “engage in War” if they are “actually invaded” or under imminent threat of invasion or a “Danger” so great that it would merit war in response….

At no point in the Constitutional Convention or any of the state ratification debates does anyone, except when speaking metaphorically, employ “invasion” to describe a non-violent, non-military event…..

More to the present point, absolutely no one at the Constitutional Convention or the state ratification debates used the word to connote the peaceful movement of immigrants (lawful or otherwise) from one country to another.

I discussed the original meaning of “invasion” here, highlighting (among other things) James Madison’s unequivocal statement that “Invasion is an operation of war.”

Vladeck recognizes (correctly, I think), that an attack by nonstate actors could qualify as an invasion, but notes that does not mean illegal migration does:

In a recent case involving a dispute with the federal government over Texas’s placement of movable buoys in the Rio Grande, Texas has claimed that “invasions” can come from non-state actors—and that what’s happening in Texas right now is an invasion.

The argument that non-state actors can “invade” states is certainly a reasonable one—especially in light of the historical and contemporary examples of the United States engaging in armed conflict with entities other than the militaries of foreign states. But that’s about as far as Texas’s argument makes sense. Indeed, three different courts of appeals have already rejected arguments that an uptick in unauthorized border crossings by migrants could qualify as an “invasion” for constitutional purposes.

InPadavan v. United States, for instance, the U.S. Court of Appeals for the Second Circuit rejected a claim by New York state elected officials that federal immigration policies vis-à-vis undocumented immigrants were facilitating an “invasion”: “In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government.” The Third Circuit followed suit three months later in New Jersey v. United States, dismissing New Jersey’s argument because “[i]t offers no support whatsoever for application of the Invasion Clause to this case or for its reading of the term ‘invasion’ to mean anything other than a military invasion.” (And the Ninth Circuit echoed both in a subsequent ruling.) As these cases make clear, however far the term “invasion” might be stretched, extending them to unauthorized border crossings by unarmed migrants just doesn’t come close. Nor should it. Recall that the purpose of the Invasion Clause is to permit a state to engage in war against those invading it. The idea that Texas could “engage” in a “war” against such (mostly unarmed) foreign nationals is little more than a rhetorical flourish….

Both Bowman and Vladeck make many good points. Both articles reading for anyone interested in this issue!

I don’t fully agree with all of their arguments. Most notably, I am not sure I am convinced by Vladeck’s claim that a federal statute could override a state’s right to engage in war even in a situation where the state really is facing an invasion. But that issue does not arise in a situation where supposed invasion is really just some combination of illegal migration and smuggling.

Whatever the right policy response to these challenges (I think it’s to make legal migration easier and to end the War on Drugs), their existence doesn’t authorize a state to wage war, or the federal government to suspend the writ of habeas corpus.  Under the Constitution, both of these extreme measures would be permissible if there really was an invasion.

The post More on Why Immigration is not "Invasion" appeared first on Reason.com.

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The Drug Enforcement Administration (DEA) is considering whether it should reclassify marijuana under the Controlled Substances Act (CSA), as the Department of Health and Human Services (HHS) recommended last August. This week a dozen Democratic senators recommended that the DEA go further by completely removing marijuana from the CSA’s schedules. Their argument is sound as a matter of policy but legally shaky because the CSA incorporates international treaty obligations in a way that bars the DEA from taking that step.

Since 1970, marijuana has been listed in Schedule I of the CSA, a category supposedly reserved for substances with “a high potential for abuse” that have “no currently accepted medical use” and cannot be used safely even under a doctor’s supervision. The DEA has consistently rejected petitions asking it to reclassify marijuana, citing advice from HHS. But last August, in response to an October 2022 directive from President Joe Biden, who said marijuana’s Schedule I status “makes no sense,” HHS reversed its longstanding position.

Departing from the DEA’s usual approach, HHS took into account clinical experience with marijuana in the 38 states that allow medical use, scientific evidence in support of certain therapeutic applications, and the relative hazards of marijuana compared to “other drugs of abuse.” It noted that “the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others.” HHS concluded that the DEA should move marijuana to Schedule III, which includes prescription drugs such as ketamine, Tylenol with codeine, and anabolic steroids.

For good reason, Sen. Elizabeth Warren (D–Mass.), Sen. John Fetterman (D–Pa.), and 10 of their colleagues, including Senate Majority Leader Chuck Schumer (D–N.Y.), think that change does not go far enough. Rescheduling marijuana, they say in a letter they sent to Attorney General Merrick Garland and DEA Administrator Anne Milgram on Monday, “would mark a significant step forward” but “would not resolve the worst harms of the current system.” They urge the DEA to “deschedule marijuana altogether,” noting that its prohibition “has had a devastating impact on our communities and is increasingly out of step with state law and public opinion.”

Unsurprisingly, that recommendation was welcomed by drug policy reformers. But it goes beyond what the CSA authorizes the DEA to do.

Generally speaking, the CSA gives the attorney general the authority to schedule, reschedule, and deschedule drugs in consultation with HHS. The attorney general historically has delegated that function to the DEA, which is part of the Justice Department. But the CSA includes an explicit limitation on the executive branch’s discretion that complicates any attempt to unilaterally deregulate marijuana.

“If control [of a subtance] is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970,” Section 811(d)(1) of the CSA says, “the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations” (emphasis added). In that situation, the decision to place or keep a drug in one of the CSA’s schedules is mandatory, and it is to be made “without regard” to the “findings” and “procedures” ordinarily required to schedule a substance.

The United States is a signatory to the U.N. Single Convention on Narcotic Drugs of 1961, which requires strict control of cannabis. “If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin,” it says, “it shall apply thereto the system of controls” specified for “the control of the opium poppy.” The treaty does not apply to “the cultivation of the cannabis plant exclusively for industrial purposes,” and it allows regulated medical use, as with opiates. But the obligations it imposes, which restrict the DEA’s scheduling decisions under the CSA, are inconsistent with decontrolling marijuana and treating it like alcohol and nicotine.

Warren et al. acknowledge the problem raised by the interaction between the CSA and the Single Convention. In 2016, they note, “the DEA considered its international treaty obligations a bar to rescheduling marijuana to anything less restrictive than Schedule II.” But since then, they say, “cannabis has been rescheduled under international law—a change that the United States and the World Health Organization supported, in light of ‘the legitimate medical use’ of certain cannabis products.”

In 2020, the senators note, cannabis was removed from the Single Convention’s “most restrictive schedule” (confusingly, Schedule IV). It remains in a category (also confusingly, Schedule I) that “requires countries to limit the drug’s use to only ‘medical and scientific purposes.'” But “deschedul[ing] marijuana altogether,” as the senators are urging the DEA to do, would flout that requirement. In addition to “cannabis and cannabis resin,” the Single Convention’s Schedule I includes drugs such as opium, heroin, fentanyl, morphine, hydrocodone, oxycodone, and cocaine, all of which are listed in the CSA’s Schedule I or Schedule II.

In support of their argument that treaty obligations are not an obstacle to administrative descheduling of marijuana, the senators cite a September 2023 legal analysis by the Boston-based law firm Foley Hoag. But that analysis actually undermines Warren et al.’s argument.

Foley Hoag notes that the Single Convention requires signatories to “tightly control cannabis, most similarly to the CSA’s Schedule I or Schedule II.” The main issue, it emphasizes, is not what the treaty demands but what the CSA allows.

“Several commentators have largely dismissed concerns regarding the Attorney General’s ability (via the DEA) to reschedule cannabis below Schedule II,” Foley Hoag notes. “After all, we’ve already violated it through our permissive approach to states’ rights to establish and regulate their own medical and adult-use markets. Moreover, several signatories to the UN Single Convention (including Canada, Mexico, Uruguay, Luxembourg, South Africa, Thailand, and others) have legalized adult use cannabis or have otherwise decriminalized possession and/or home cultivation in clear violation of the Single Convention. After all, the Single Convention seems to lack any enforcement mechanism. So, it’s no big deal, right? RIGHT?”

Wrong, Foley Hoag says: “Treaty compliance is not the issue. At least not the primary issue. The issue is compliance with domestic law. The key question is whether the Attorney General, via the DEA, can or will be able to reschedule cannabis to Schedule III given that the UN Single Convention is effectively incorporated into the CSA—a federal statute passed by Congress that the Executive Branch must follow.”

Back in 1977, Foley Hoag notes, the U.S. Court of Appeals for the D.C. Circuit emphasized that Section 811(d)(1) “circumscribes the Attorney General’s scheduling authority.” That provision “enables him to place a substance in a CSA schedule—without regard to medical and scientific findings—only to the extent that placement in that schedule is necessary to satisfy United States international obligations,” the appeals court said. “Had the provision been intended to grant him unlimited scheduling discretion with respect to internationally controlled substances, it would have authorized him to issue an order controlling such drug ‘under the schedule he deems most appropriate,'” full stop.

Note that Foley Hoag was addressing the issue of whether the DEA can legally move marijuana to Schedule III. The objections it raises apply with even more force to the question of whether the DEA can “deschedule marijuana altogether.”

In a 2020 brief asking the U.S. Court of Appeals for the 9th Circuit to overrule the DEA’s position that marijuana belongs in Schedule I, attorneys Matthew Zorn and Shane Pennington argued that the CSA violates the constitutional separation of powers. The statute “transfers a quintessential legislative power—the power to execute treaties—to the Attorney General,” they wrote. And in doing so, they said, it fails to provide an “intelligible principle to choose among schedules,” as required by the Supreme Court’s delegation precedents. “The Attorney General has no discretion to override the floor dictated by an unelected international body,” Zorn and Pennington noted. “But he has unfettered discretion to schedule above that point. Even if these two handoffs could stand independently, together they plainly violate established Separation of Powers norms.”

Even as they argued that the CSA is unconstitutional in these respects, Zorn and Pennington conceded that the attorney general “has no discretion” under the statute to ignore the Single Convention’s demands. In fact, their constitutional argument hinged on that point.

Zorn still does not see how the DEA can do what Warren et al. are asking without violating the CSA. “This is like asking the President to jump 20 feet in the air,” he says in an email.

The senators are right that moving marijuana to Schedule III would leave many problems unresolved. That step would facilitate medical research by removing regulatory requirements that are specific to Schedule I. It also would relieve a crippling tax burden on state-licensed marijuana businesses under Section 280E of the Internal Revenue Code. But those businesses would remain criminal enterprises in the eyes of the federal government, subject to felony charges and civil forfeiture—consequences they currently avoid only thanks to prosecutorial discretion and an annually renewed congressional spending rider that is limited to medical marijuana. They would still have difficulty obtaining financial services from institutions that are keen to avoid the risk of civil, regulatory, and criminal penalties.

Placing marijuana in Schedule III would not even make it legally available as a prescription medicine, which would require approval of specific products that meet the Food and Drug Administration’s onerous requirements for proving safety and efficacy. Nor would it restore the Second Amendment rights of cannabis consumers, who would still be barred from possessing firearms as “unlawful user[s]” of a controlled substance. And as Warren et al. note, “non-citizens could still be denied naturalization and green cards, and even deported, based on most marijuana offenses.”

The only way to solve all of these problems is to repeal the federal ban on marijuana—a move that 70 percent of Americans favor, according to the latest Gallup poll. But the power to do that lies with Congress, not the DEA.

The post 12 Senators Urge the DEA To Legalize Marijuana, Which Only Congress Can Do appeared first on Reason.com.

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As Ronald Reagan’s first budget director, former Michigan congressman David Stockman led the charge to cut the size, scope, and spending of the federal government in the early 1980s. He made enemies among Democrats by pushing hard for cuts to welfare programs—and he ultimately made enemies among his fellow Republicans by pushing equally hard to slash defense spending. His memoir of the era, The Triumph of Politics: Why the Reagan Revolution Failed, is a legendary account of how libertarian principles got sacrificed on the altar of political expediency.

Stockman’s new book is Trump’s War on Capitalism, and it takes a blowtorch to the former president’s time in office. “When it comes to what the GOP’s core mission should be…standing up for the free markets, fiscal rectitude, sound money, personal liberty, and small government at home and non-intervention abroad,” he writes, “Donald Trump has overwhelmingly come down on the wrong side of the issues.”

At a Reason Speakeasy event in New York City, I talked with Stockman about his political journey from being a member of Students for a Democratic Society who protested the Vietnam War to being one of Reagan’s main advisers to his denunciation of Donald Trump and his hope that Robert F. Kennedy Jr.’s candidacy helps throw the 2024 election into the House of Representatives.

Stockman also explains how Trump led the disastrous charge on COVID-19 lockdowns, got rolled by Wall Street and the Federal Reserve, and why his nativist views on immigration are inimical both to freedom and economic growth.

Today’s sponsor:

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• The Reason Speakeasy.  The Reason Speakeasy is a monthly, unscripted conversation in New York City with outspoken defenders of free thinking and heterodoxy. Go here for an online archive and go here to sign up for information about upcoming events.

The post David Stockman: Trump's War on Capitalism and Freedom appeared first on Reason.com.

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From today’s opinion by Chief Judge Mark Walker (N.D. Fla.) in Students for Justice in Palestine at Univ. of Florida v. Rodrigues (see this Oct. 27, 2023 post for more on the background First Amendment issues):

On October 24, 2023, less than three weeks after Hamas’s horrific attack on Israel and a spike in antisemitic hate crimes throughout the United States, the Chancellor of the Board of Governors sent a memorandum to each university president in the State University System, including Defendant Ben Sasse, President of the University of Florida. The memorandum described Hamas’s attack and linked Hamas’s actions to an organization called the National Students for Justice in Palestine, based on statements that the national organization made in response to events in Israel.

The Chancellor cited Florida’s criminal law against providing material support to designated foreign terrorist organizations and implied that the national organization violated that statute based on its statements. The Chancellor then identified two student chapters of Students for Justice in Palestine that exist as registered student organizations at two of Florida’s state universities. One of those chapters is Plaintiff, Students for Justice in Palestine at the University of Florida. The Chancellor incorrectly described these student chapters as “active National SJP Chapters” that “exist under the headship of the National Students for Justice in Palestine.” In bold, the Chancellor stated: “Based on the National SJP’s support of terrorism, in consultation with Governor DeSantis, the student chapters must be deactivated.“

A week after the Chancellor sent his memorandum, he addressed the matter again at a Board of Governors (BOG) meeting on November 9, 2023. At the meeting, the Chancellor indicated that the student chapters of the Students for Justice in Palestine, including Plaintiff, have constitutions that clearly state that their organizations are not subservient to or under the control of the national organization, as he had suggested in his memorandum. He also indicated that officials at the University of Florida had sought their own legal opinion about deactivating Plaintiff and the opinion raised concerns that officials at the University of Florida could be exposed to personal liability if they deactivated the student organization consistent with Defendant Rodrigues’s memorandum.

Plaintiff filed suit about a week after this BOG meeting. Without dispute, the University of Florida has not deactivated Plaintiff as a registered student organization. But Plaintiff asks this Court to decide whether this memorandum and the threat of deactivation that this memorandum arguably represents violates Plaintiff’s First Amendment rights to free speech and association.

The court held that plaintiff lacked standing, because it hadn’t adequately alleged that its speech was actually abridged by the Chancellor’s memorandum (given the University of Florida’s decision not to deactivate the group) or chilled:

[To show that] standing exists …, a plaintiff must show (1) that they have suffered an injury-in-fact that is (2) traceable to the defendant and that (3) can likely be redressed by a favorable ruling….

To start, this Court recognizes that it is limited to the record before it in ruling on Plaintiff’s motion. And the parties were free to develop this record ahead of the hearing. Indeed, this Court adopted the parties’ proposed briefing schedule, accommodated requests to exceed word limits, and did not limit either side in calling live witnesses at the hearing. This Court notes this up top to emphasize it is Plaintiff’s burden to demonstrate standing and, as the case law teaches, establishing standing is dependent on the unique facts and context of each case….

Both sides agree that, ultimately, the UF Board of Trustees (BOT) is the entity responsible for directly regulating registered student organizations. Neither the Governor, nor the Chancellor, nor the BOG have the formal power to punish student organizations. The BOG has delegated such regulatory authority to the Boards of Trustees of its constituent universities, and the record is devoid of any evidence that the BOG has taken steps to officially wrest back control. And as for the BOT, this Court finds, based on the record, that at the time of filing, the University of Florida had taken no steps to deactivate Plaintiff following advice from outside counsel suggesting that deactivation would risk opening the BOT members to personal liability.

This Court’s finding is based on the fact that nobody introduced any evidence of additional actions the University took in furtherance of the memorandum before Plaintiff filed its complaint. In addition, based on the recording of the November 9th BOG meeting, this Court can reasonably infer that following the transmission of the Chancellor’s memorandum, officials at the University of Florida communicated to the Chancellor that his facts were wrong—the University had investigated and learned that Plaintiff is fully autonomous from the national SJP organization—and that the BOT had “liability concerns” with respect to deactivation. In short, this Court finds that the University does not intend to deactivate Plaintiff consistent with the Chancellor’s memorandum.

But even if the BOT has not taken any actions in furtherance of deactivation, Plaintiff asserts that the other Defendants need not have the formal power to punish registered student organizations for Plaintiff to have standing against them. As a general legal principle, Plaintiff is correct [at least if it can show that its expression was therefore chilled or that it’s facing “a credible threat of prosecution” -EV]…. [But] the record is devoid of any evidence that Plaintiff’s members or prospective members have self-censored. Instead, the only evidence before this Court regarding the effect that this threat of deactivation has had on Plaintiff is a declaration from one of its student members that demonstrates only that the organization’s members and unidentified prospective members are “scared,” “disheartened,” and “disappoint[ed],” when it comes to the Chancellor’s memorandum…. [T]he only evidence that Plaintiff has come forward with to demonstrate that its members’ or prospective members’ speech or association is chilled is the statement that “multiple current and potential members of UF SJP are afraid of being punished or investigated by the University or law enforcement because of their participation in our group.” But evidence of subjective fear or anxiety, on its own, does not give rise to a cognizable constitutional injury.

This Court does not fault Plaintiff’s members for feeling anxious about the fact that the Governor—arguably the most powerful man in Florida—has repeatedly disparaged Plaintiff’s members as “terrorists” who support “jihad” and repeated the falsehood that their organization has been “deactivated.” But this Court rejects counsel’s suggestion that it should infer that because students are fearful, that means that they are going to self-censor or continue to speak under the threat of future punishment—this Court cannot rewrite Plaintiff’s declarations to assist Plaintiff in meeting its burden. Plaintiff’s suggestion that because someone, even someone cloaked with great power, makes coercive statements that cause college students to fear some hypothetical future harm means they must have standing stretches the injury-in-fact requirement beyond the boundaries that case law has established for standing in First Amendment pre-enforcement challenges. This Court is not free to exceed those boundaries.

In addition, to the extent Plaintiff asserts its board members remain determined to spread their message about the Palestinian people despite their fears of punishment or criminal investigation, the record demonstrates that their fears of punishment or criminal investigation are not reasonable. For starters, Plaintiff has proffered no evidence to raise a reasonable inference that any criminal investigation or prosecution is imminent. Instead, Plaintiff’s evidence only demonstrates that the Chancellor’s memorandum implied criminal liability based on Plaintiff’s association with the national SJP organization, but despite this implication, Plaintiff’s board members “are still determined to stand up for [their] morals and spread awareness in [the] community about the rights and cause of Palestinian people.”

This might have been a different case had Plaintiff presented testimony from members demonstrating an unusually pronounced law enforcement presence at their meetings following the memorandum or requests for voluntary questioning concerning their organization’s activities. Such evidence might demonstrate that  authorities were indeed acting in furtherance of the coercive threats from the Governor or the Chancellor…. [Or i]f Plaintiff could point to evidence that the University was taking actions to circumvent its normal procedures for disciplining student organizations following the memorandum, this might also demonstrate that these administrators were cowed by the memorandum and its threat of adverse employment actions for failing to deactivate Plaintiff. But … those are not the facts before me.

In short, the record demonstrates that neither deactivation nor criminal investigation is imminent. Instead, this Court finds that no actions have been taken in pursuit of deactivation under the Chancellor’s memorandum. And, as this Court has already found, the Defendants with legal authority to directly regulate registered student organizations do not intend to deactivate Plaintiff. The Chancellor has switched tactics from deactivation to other actions the University might take in lieu of deactivation—but Plaintiff has proffered no record evidence demonstrating that  the University of Florida has taken any action based on the Chancellor’s statements on November 9th. The Chancellor has also acknowledged that the premise upon which his memorandum is based—that Plaintiff is under the “headship” or control of the national SJP organization—is false, and thus, it is not clear whether the memorandum even continues to apply to Plaintiff.

Ultimately, the evidence before this Court demonstrates that “deactivation” remains simply an amorphous threat contingent upon either the BOT reevaluating its aversion to possibly incurring personal liability or the BOG taking some action to pass a new regulation to take back its delegation of authority over student organizations. Absent any evidence to suggest either of these future contingencies are imminent, the asserted injury of threatened deactivation remains merely speculative. For these reasons, this Court finds that Plaintiff has not met its burden to demonstrate a substantial likelihood of establishing standing for purposes of a preliminary injunction….

The post Students for Justice in Palestine at Univ. of Florida Denied Preliminary Injunction, appeared first on Reason.com.

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