Category: reason

While I hope that vaccination changes things over the next few months, for now only virtual  speaking engagements are possible. Last semester, I gave virtual talks “at” a variety of institutions, in the United States and abroad, including Harvard, Yale, Cornell, the University of Virginia, Columbia, and others. If nothing else, I am much more comfortable speaking on Zoom and other similar systems than I was before!

Below is my list of online speaking for the spring semester. I am open for business for additional events.if you would like to invite me to give a “virtual” talk about any of my areas of expertise (described in more detail at my website here) at your own university, think thank, or other similar organization, please feel free to contact me.

Unless otherwise noted, they are open to the public, not just students and faculty at the relevant institution. All time are US eastern time (again, unless otherwise noted).

Many of these events are about my recent book Free to Move: Foot Voting, Migration and Political Freedom. But I am happy to talk about other issues within my expertise as well. The latest and most timely addition may be the second impeachment of Donald Trump (my writings on the subject were cited in the House Judiciary Committee impeachment report).

I will update this post regularly, with new speaking engagements, and additional information about existing ones.

January 29, Osher Lifelong Learning Institute, University of California, San Diego, 10-12 AM Pacific time/1-3 PM eastern. “Free to Move: Foot Voting, Migration, and Political Freedom.” More detailed description and registration information available here. My understanding is that this event is open only to paying UCSD Osher Institute participants.

February 4, 12-1:15 PM, Harvard Law School: “Free to Move: Foot Voting, Migration, and Political Freedom” (Sponsored by the Harvard Crimmigration Clinic). Free registration available here.

February 11 and 18, 8-9 PM, Speakeasy: “How to Get Your Academic Book Published.” This is a two-part series intended for academics, policy analysts and others who want to learn the nuts and bolts of how to write a book and get it published with an academic publisher. I will answer questions and give individualized advice to participants in the second half of each sessio. Sign-up information available here. There is a $40 fee for both talks combined.

February 23, 3-4:30 PM, NYU Law School: “Free to Move: Foot Voting, Migration, and Political Freedom” (sponsored by the Classical Liberal Institute). With commentary by NYU law professors Richard Epstein (one of the world’s leading experts on property rights and libertarian legal theory) and Rick Hills (leading federalism scholar). Free registration here.

March 4, 7:30-8:45 PM, CSI/CUNY: “Free to Move: Foot Voting, Migration, and Political Freedom” (sponsored by the Legal Studies Institute annual lecture series—rescheduled from 2020). Registration information and link TBA.

 

 

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From Prof. Michael McConnell (Stanford), a leading constitutional scholar and legal historian:

Much of the discussion of the constitutionality of trying Former President Trump on impeachment charges after he has left office consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed. Not enough attention has been paid to the constitutional text, or the timing of this particular impeachment.

Whether a former officer can be impeached is beside the point. Donald Trump was President of the United States at the time he was impeached by the House of Representatives. The impeachment was therefore unquestionably permissible (putting aside any disagreements over the nature of the charges).

Article I, Section 3, Clause 6, states: “The Senate shall have the sole Power to try all Impeachments.” The key word is “all.” This clause contains no reservation or limitation. It does not say “the Senate has power to try impeachments against sitting officers.” Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.

Article II, Section 4, states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” This provision does appear applicable only to sitting officers. But it does not limit the power of the Senate to try, which comes from Article I, Section 3, Clause 6. It merely states that removal from office is mandatory upon conviction of any sitting officer. No lesser sanction will suffice.

Article I, Section 3, Clause 7, states: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgment and Punishment, according to Law.” Read together with Article II, Section 4, this means that the consequence of conviction on impeachment must include removal from office, may include disqualification from future office, and may not include any other sanction. The first sanction is limited to sitting officers, which makes sense. The second sanction is not so limited.

Some argue that the conjunction “and” in Article I, Section 3, Clause 7, implies that the sanction must include both removal and disqualification, and that because removal of a former officer is not possible, disqualification must also not be allowed. But the clause does not say that both sanctions are required; it says that the judgment may not go beyond imposition of both sanctions.

I have not seen any answer to this textual point from those who think the trial of Mr. Trump would be unconstitutional. They ignore the fact that he was properly impeached (at least, insofar as timing is the issue), and they ignore the text of Article I, Section 3, Clause 6, which states that the Senate may try “all” impeachments. They conjure up a limitation on the Senate’s power by a misconstruction of the sanctions limitation of Article I, Section 3, Clause 7. And, of course, they bolster their argument with motivated reasoning about consequences for the republic, which are no more persuasive than the motivated arguments coming from the other side.

I suppose that if there were powerful historical evidence that this was not the understanding of the founders, we might have a debate between text and historical understanding. But the historical evidence supports the text. The two British impeachment trials prior to the Constitution both involved former officers, and the first impeachment trial under the new Constitution involved a former Senator. The only respect in which history may clash with text is that history does not support the conclusion that only a sitting officer may be impeached—an issue distinct from the question of trial, and not relevant to the current situation.

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There are five, and you can read English-language summaries linked to from this page. Four of the five decisions reverse Facebook’s decisions to remove content, and thus take a relatively speech-protective provision, though (unsurprisingly) not always as speech-protective a position as U.S. First Amendment law would apply to governmental restrictions on speech. The one decision that the panel upheld had to do with the use of an ethnic slur against Azerbaijanis in the Armenian-Azerbaijani conflict:

The post used the term “тазики” (“taziks”) to describe Azerbaijanis. While this can be translated literally from Russian as “wash bowl,” it can also be understood as wordplay on the Russian word “азики” (“aziks”), a derogatory term for Azerbaijanis which features on Facebook’s internal list of slur terms. Independent linguistic analysis commissioned on behalf of the Board confirms Facebook’s understanding of “тазики” as a dehumanizing slur attacking national origin.

It’s possible that the nipple decision, by the way, would be actually more protective than First Amendment law would be as to governmental restrictions on speech on some kinds of government property. First Amendment law allows reasonable, viewpoint-neutral restrictions in such government-as-proprietor situations (as opposed to general bans on speech even on private property, with the private property owner’s permission, imposed by the government as sovereign). A categorical ban on depictions of the female nipple in a limited public forum would likely be upheld under such a standard.

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Yesterday’s Eighth Circuit decision in Campbell v. Reich, written by Judge Morris Arnold and joined by Judge Steven Colloton, considered “whether [Missouri state representative Cheri Toalson] Reisch acted under color of state law when she blocked [Mike] Campbell on Twitter.” If she was acting under color of state law, viewpoint-based blocking would likely have violated the First Amendment; but if she was acting wearing her private citizen hat, she’d be free to engage in such blocking:

Campbell maintains that [Reisch acted under color of state law] because she blocked him for criticizing her fitness for political office even though she had created a virtual forum for the public to discuss “the conduct of her office.” Reisch says she didn’t act under color of state law because she runs this Twitter account in a private capacity, namely, as a campaigner for political office….

Campbell encourages us to follow the path taken by Knight First Amendment Inst. v. Trump (2d Cir. 2019) and Davison v. Randall (4th Cir. 2019) and conclude that Reisch acted under color of state law. In Davison, the chair of a local governmental board, Phyllis Randall, blocked a constituent from a Facebook page. The page, titled “Chair Phyllis J. Randall,” was created the day before Randall was sworn in as chair, and she designated the page “governmental official.” Randall also had a personal Facebook page and a page devoted to her campaign. As the Fourth Circuit pointed out, Randall used the page “as a tool of governance” by updating constituents about the county’s activities and emergency responses, as well as by soliciting public input on policy issues. And it bore certain “trappings” of her office, including a page title that noted Randall’s official title, lists of official contact information, links to the official county website, posts about official activities, and even posts expressly directed to all of Randall’s constituents.

In Trump, the Second Circuit considered President Trump’s Twitter account, which was unabashedly used for official purposes. President Trump and members of his administration described the account as official and used it to announce, describe, and defend policies; to promote his legislative agenda; to announce official decisions; and to engage with foreign leaders, among other things. His press secretary described the tweets as “official statements” of the president, members of his administration helped him operate the account, and even the National Archives deemed the tweets “official” for purposes of archiving them. As that court explained, “the evidence of the official nature of the Account is overwhelming.” The court reached this conclusion even though President Trump had created the account long before he became president. The court was careful to note, however, that “not every social media account operated by a public official is a government account.”

We hold that Reisch’s account is the kind of unofficial account that the Trump court envisioned. First of all, no one seriously disputes that her account at least began life as a private account because Reisch was not a public official when she created it. Indeed, it seems safe to say that someone who isn’t a public official cannot create an official governmental account. But even if Reisch had been a public official at the time, we would still hold that she had not created an official governmental account because she used it overwhelmingly for campaign purposes: She created the account the day she announced her candidacy; she solicited donations to her campaign on the account; and, for over a year, she sought to convince her audience to support her election bid.

We don’t intimate that the essential character of a Twitter account is fixed forever. But the mere fact of Reisch’s election did not magically alter the account’s character, nor did it evolve into something different. A private account can turn into a governmental one if it becomes an organ of official business, but that is not what happened here. The overall theme of Reisch’s tweets—that’s she’s the right person for the job—largely remained the same after her electoral victory. Her messages frequently harkened back to promises she made on the campaign trail, and she touted her success in fulfilling those promises and in her performance as a legislator, often with the same or similar hashtags as the ones she used while a candidate. So it seems to us that Reisch used the account in the main to promote herself and position herself for more electoral success down the road—a conclusion supported by the campaign-related tweet that led to this litigation.

We acknowledge that she occasionally used the account to provide updates on where certain bills were in the legislative process or the effect certain recently enacted laws had had on the state. But tweets like these are fully consistent with Reisch using the account to tout her record because they show voters that she was actively advancing her legislative agenda and fulfilling campaign promises. They also revealed where she stood on relevant political issues. In sum, her post-election use of the account is too similar to her pre-election use to suggest that it had morphed into something altogether different.

Reisch’s account is fundamentally different from the accounts at issue in Trump and Davison. For one thing, official governmental activity was conducted on those accounts, whether it was President Trump announcing an appointee or conducting foreign affairs, or Chairwoman Randall coordinating her county’s response to a blizzard. Even if Reisch’s official duties as a representative extend beyond voting or participating in committee meetings and include things like communicating with constituents about legislation, her sporadic engagement in these activities does not overshadow what we believe was quite clearly an effort to emphasize her suitability for public office.

The dissent points to a few tweets that Reisch posted after the election to support the view that she changed the way in which she was using her account. These messages are necessarily different from previous ones because they report on events that occurred in the state legislature. But it is not obvious that their purpose was different. They were consistent with a desire to create a favorable impression of Reisch in the minds of her constituents.

Reisch’s new tweets, moreover, also provided information on her local political party’s annual chili supper and Lincoln Day banquet, featured pictures of her posing with young boys who had brought her chocolate, and reported that her niece would be voting for a particular political candidate. The main point is that occasional stray messages that might conceivably be characterized as conducting the public’s business are not enough to convert Reisch’s account into something different from its original incarnation.

The district court also noted that Reisch’s Twitter page had what the Davison and Trump courts called “trappings” of an official account. For example, the court pointed out that Reisch’s twitter handle, @CheriMO44, refers to the district she represents and her role as state representative. The court also drew attention to photos at the top of the Twitter page showing Reisch on the House floor and to Reisch’s discussion of political issues.

But even if these can be trappings of an official account, they can quite obviously be trappings of a personal account as well. The Trump and Davison courts were not concerned with distinguishing an official page from a campaign page as we are, and so they do not offer much guidance for deciding this case.

The Twitter page of a political candidate does not convert itself into an official page just because the candidate chooses a handle that reflects the office she is pursuing (which Reisch did here before she became an elected official) or because she posts a photo of herself working at the job she was elected to perform and hopes to be elected to perform again. And a campaign page certainly doesn’t become something else simply because it discusses political topics. One can expect discussions of political topics on such a page, and Reisch in fact discussed them on the account before she became a government official. All these “trappings” are just too equivocal to be helpful here.

In short, we think Reisch’s Twitter account is more akin to a campaign newsletter than to anything else, and so it’s Reisch’s prerogative to select her audience and present her page as she sees fit…. Reisch’s own First Amendment right to craft her campaign materials necessarily trumps Campbell’s desire to convey a message on her Twitter page that she does not wish to convey, even if that message does not compete for room as it would, say, in a campaign newsletter….

Judge Jane Kelly dissented:

Reisch’s election to public office may not have “magically alter[ed]” the character of her Twitter account, as the court notes, but it did change how she used the account and for what purpose. Before Reisch was sworn in, her tweets used her campaign hashtag (“#TeamCheri”), invited people to join her campaign team, solicited campaign donations, and publicized endorsements from various groups and individuals. By contrast, between January 2017 and February 2019 (when she apparently deleted her Twitter account), Reisch did not tweet a single request for campaign donations, or make any reference to “#TeamCheri.” Instead, the majority of Reisch’s tweets and retweets after January 2017 reported on new laws (“MO citizens will now have a choice to get Real ID compliant license”); provided information about the Missouri legislature’s work (“A big thanks to House Communications for doing this great story on this piece of legislation that was passed”); and informed the public of Reisch’s own official activities (“I spoke [on the Missouri House floor] about my 34 years experience with prevailing wage. Repeal it. Save taxpayers $.”). Through her Twitter account, Reisch also interacted with Missouri residents, including a fourth grade teacher who thanked Reisch for speaking to students about “a [s]tate [r]epresentative’s job.”

Moreover, in addition to using her Twitter account as a “tool of governance,” Reisch “clothed [it] in the trappings of her public office.” She set her location to “District 44, Missouri, USA,” described herself in her bio as “MO State Rep 44th District,” displayed a profile photo taken in the Missouri House chamber, and used a large photo of her swearing-in ceremony as the banner at the top of her Twitter feed. In short, Reisch’s persistent invocation of her position as an elected official overwhelmed any implicit references one might perceive to her campaign or future political ambitions.

The court characterizes Reisch’s tweets as merely “show[ing] voters that she was … fulfilling campaign promises.” And it is true that public officials acting purely in pursuit of personal interests do not do so “under color of state law.” This does not mean, however, that an official whose challenged conduct is closely related to her official responsibilities cannot act “under color of state law” simply because her actions simultaneously further personal goals or motives. Indeed, it seems that the statements of lawmakers carrying out their official duty to communicate information to constituents will very often harken back to some campaign promise or another, so this factor does not merit the outsized importance the court places on it today….

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Democrats now have the luxury of a unified government. Controlling the House of Representatives, the Senate, and the White House gives them an opportunity to do many things they have claimed to care about but have complained about being blocked by Republicans. And so, this opportunity is also one for others to hold Democrats accountable if they don’t actually do what they insist they wish to do.

Reforming our criminal justice system is a good place to start. During last summer’s demonstrations to protest the deaths of George Floyd and Breonna Taylor, demands were voiced for racial equality and police reform. Democrats such as Speaker of the House Nancy Pelosi (D–Calif.) and then-Senate Minority Leader Chuck Schumer (D–N.Y.) never missed an opportunity to eagerly support the crowds demanding change.

Now that Democrats are in power, it’s time to act. They could change some of the rules that lead to over-criminalization, excessive reliance on punitive enforcement, and mass incarceration. While most criminal justice policy is set at the state level, the federal government can play an important role in reform. Starting with this issue has the advantage of being an uncommon area where Republicans and Democrats have successfully worked together in the past. The bipartisan nature of this effort would also send a strong signal that this administration is serious about unity and that President Joe Biden’s promises of reconciliation made during his inauguration speech weren’t just political posturing.

If we want fewer people arrested and imprisoned, as a first step in such reform, Congress could make the use, cultivation, and sale of marijuana legal. Many states have already done so. It’s time for our federal government to update its outdated and intrusive rules. While Congress has made clear that it doesn’t want federal law enforcement to interfere with state-level medical marijuana programs, the Department of Justice continues to focus on the production and distribution of marijuana, regardless of state legalization. Besides, abstaining from prosecuting is quite different from decriminalizing or legalizing.

Marijuana businesses operating legally according to their state laws never know if the feds will knock on their door one day and put them out of business or send them to jail. If Congress and President Biden were to update these laws, it would go a long way toward arresting and imprisoning fewer people.

Democrats could also implement police reform to help root out the problem of abuse that was at the center of last summer’s protests. They can start by scaling back qualified immunity, which would make it easier for plaintiffs to recover damages against officers who are sued and found guilty of abusing their authority (which is a whole can of worms in and of itself). Then, Democrats could end the use of no-knock warrants in drug cases at the federal level and end the transfer of military weapons and vehicles to local police departments to wage what is essentially warfare on American citizens—two factors at the heart of the police killing last March of 26-year-old Breonna Taylor. They could also ban chokeholds at the federal level, a tactic responsible for the deaths of both Eric Garner and George Floyd.

Pushing these reforms through Congress should be easy enough, since they were all part of the George Floyd Justice in Policing Act of 2020 bill that passed the House last summer. It never got through the Senate, as Republicans didn’t want to take on a bill that was destined to receive then-President Donald Trump’s veto. That was then. President Biden is in office now. Also, while Vice President Kamala Harris has spent most of a career eagerly enforcing the worst drug regulations, the campaign trail has given her a change of heart.

Finally, Democrats in Washington should abolish the federal death penalty. This would finally guarantee that a repeat of the recent spree in federal executions under Trump never happens again. (Sixteen people have been executed by the federal government since 1977, including 10 in 2020 and three in 2021.) At a time when people are demanding reform of government rules that disproportionally affect minorities, this change should be a no-brainer. A recent report by the Brennan Center for Justice notes, “There is substantial evidence that the death penalty is applied inequitably in the United States.”

Democrats have the power to show that their statements about wanting to reform the system weren’t just pandering and posturing. Now is the time to act.

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