Category: reason

Class 28: Modern Substantive Due Process III: Protecting “Dignity”

• Lawrence v. Texas (1249-1270)
• United States v. Windsor (1270-1272)
• Obergefell v. Hodges (1272-1299)

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As I mentioned in my post below, a Florida court issued an overbroad takedown order, which someone is using to try to vanish mainstream media articles about the Hyman v. Daoud daughter-vs.-father property lawsuit. (Kelly Hyman is a lawyer and an occasional political commentator; Alex Daoud, her father, is the former mayor of Miami Beach.) The overbroad order was apparently directly adapted from the proposed order submitted by Ms. Hyman’s lawyers, Bernard Lebedeker and David Sholl.

I e-mailed the lawyers yesterday morning to ask whether they had a comment on the situation:

Dear Messrs. Lebedeker & Sholl:  I’m writing an item about the Hyman v. Daoud deindexing order [which I attached to the e-mail -EV], and in particular its purporting to bind not just Mr. Daoud (who agreed to it) but search engines and other site operators (which didn’t).  I also noticed that Ms. Hyman (or someone working on her behalf) had apparently asked Google order – on the strength of this order order – to remove not just material that Mr. Daoud had posted, but also articles on the Miami Herald, CBS Miami, and The Real Deal sites, as well as some criticisms of Judge Paul Hyman that don’t seem to come from Mr. Daoud.  See https://lumendatabase.org/notices/22289871?access_token=PmqlvB2uV55U65_hZwOt6A and https://lumendatabase.org/notices/22299229?access_token=akdiWrDzTNNkECqFuJpDzA .  Can you tell me a bit more, please, about the thinking behind the attempt to bind nonconsenting third parties, and to remove legitimate news coverage of the dispute?  Please let me know.  (I’m asking you given that the order was proposed as an attachment to your Oct. 30, 2020 motion.)  Many thanks,

Eugene Volokh

Author, Reason Magazine site, http://reason.com/volokh  Professor of Law, UCLA School of Law, http://www.law.ucla.edu/volokh

Here’s a response I got this afternoon from Mr. Lebedeker:

I’m sorry, I don’t know who you are or why you are sending this.  I am placing you on my block sender’s list, please do not contact me again.

Bernard A. Lebedeker, Esq.

Well, all right then, though I’m not sure how I could have been clearer about who I was and why I was sending my message.

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A new installation is out of character with the surrounding neighborhood and might have to be removed.

On Monday, the Utah Department of Public Safety announced that members of its Aero Bureau—while performing a count of big horn sheep in Red Rock Desert in the southeastern portion of the state last week—came across a large metal monolith in the remote region.

“One of the biologists is the one who spotted it and we just happened to fly directly over the top of it,” said DPS helicopter pilot Bret Hutchings to local TV station KSL. “He was like, ‘Whoa, whoa, whoa, turn around, turn around!’ And I was like, ‘what.’ And he’s like, ‘There’s this thing back there—we’ve got to go look at it!'”

Who, or what, might have placed the 10- to 12-foot structure in the middle of the desert is shrouded in mystery. Hutchings told KSL that it looked like a new age art installation. DPS spokesperson Lt. Nick Street said that the monolith was assembled using stainless steel and pop rivets, suggesting human origins, but making it hard to guess its age.

“It could have been placed there 50, 60 years ago and because of the material it’s made out of it hasn’t weathered—it was meant not to,” Street told USA Today, adding, “It’s definitely an interesting installation.”

The monolith’s location will remain classified, DPS said, for fear that people will endanger themselves by trying to hike to the isolated structure.

What’s not up for debate is the monolith’s legal status.

“It is illegal to install structures or art without authorization on federally managed public lands, no matter what planet you’re from,” said DPS in a press release. The federal Bureau of Land Management will determine whether further investigation of the monolith is warranted.

One certainly hopes the origins of the structure are terrestrial. There would be few better ways to sour Earth’s reputation in the galaxy than exposing off-planet visitors to the onerous restrictions and red tape we place on the development of federal lands. After all, beings capable of interstellar space travel have almost certainly evolved past the need for such barbaric regulations.

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The Federalist Society has now posted the audio of the Teleforum I did with them on the the November 10 Supreme Court oral argument in California v. Texas, the Obamacare “severability” case. It is available here.

In the teleforum, I cover all three of the issues addressed by the justices: severability, standing, and the constitutionality of what’s left of the individual health insurance mandate after Congress zeroed out the penalty for noncompliance in 2017. I also talk about the role of elite/expert consensus in influencing the Court, as I think in this case it likely did on the severability issue.

I wrote about the oral argument here. In that post, I also include a description of the history of the case, and links to my previous writings on it.

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The Trump campaign’s post-election lawsuits have been almost uniformly unsuccessful, key states are moving ahead with certification of their results, and the General Services Administration has finally recognized Joe Biden as the probable president-elect. Although Donald Trump still insists he is not conceding, a growing number of Republican lawmakers are urging him to do so, or at least acknowledging that his wild fraud claims have not panned out. Joining a small group of GOP legislators who promptly recognized Biden’s victory, several senators and representatives who initially took a wait-and-see approach recently said we have waited long enough.

Sen. Mitt Romney (R–Utah), a Trump critic who supported impeachment and said he did not vote for the president, congratulated Biden on his victory more than two weeks ago, after major news outlets projected him as the winner. Sen. Lisa Murkowski (R–Alaska) likewise acknowledged Biden’s victory on November 7, as did Reps. Don Young (R–Alaska), Adam Kinzinger (R–Ill.), John Shimkus (R–Ill.), Paul Mitchell (R–Mich.), Tom Reed (R–N.Y.), Will Hurd (R–Texas), and Denver Riggleman (R–Va.).

Rep. Francis Rooney (R–Fla.), who congratulated Biden the following day, wrote a November 15 op-ed piece for The Hill headlined “Time to Concede.” Rep. Don Bacon (R–Neb.) admitted on November 8 that “the handwriting is on the wall that Joe Biden has been elected as the next President.” Sen. Susan Collins (R–Maine) congratulated Biden on November 9, and Rep. John Curtis (R–Utah) recognized him as the president-elect the same day.

Rep. Jim Durkin (R–Ill.) chimed in last week. “The election is over,” he told the Chicago Sun-Times on November 19. “Begin the transition process.”

Last Thursday, Sen. Ben Sasse (R–Neb.) cast doubt on Trump’s attempts to reverse the outcome of the election. “What matters most at this stage is not the latest press conference or tweet, but what the president’s lawyers are actually saying in court,” he told The Washington Post. “When Trump campaign lawyers have stood before courts under oath, they have repeatedly refused to actually allege grand fraud—because there are legal consequences for lying to judges.”

Sen. Marco Rubio (R–Fla.) likewise has been skeptical of Trump’s election fraud charges. “Taking days to count legally cast votes is NOT fraud,” he tweeted on November 4, although he added that “court challenges to votes cast after the legal voting deadline is NOT suppression.” Last week Rubio casually referred to Biden as the “president-elect.”

Rep. Liz Cheney (R–Wyo.), who chairs the House Republican Conference, initially said “it’s the responsibility of the courts” to address election fraud claims. But by last Friday, she was losing patience. “The President and his lawyers have made claims of criminality and widespread fraud, which they allege could impact election results,” she said. “If they have genuine evidence of this, they are obligated to present it immediately in court and to the American people.”

On Saturday, after a federal judge scathingly rejected the Trump campaign’s attempt to block certification of Pennsylvania’s vote, Sen. Pat Toomey (R–Pa.), who had earlier noted that “the president’s allegations of large-scale fraud and theft of the election are just not substantiated,” said it was time for Trump to accept reality. “President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania,” Toomey said in a press release, noting that Saturday’s ruling followed legal defeats for the Trump campaign in other states. “These developments, together with the outcomes in the rest of the nation, confirm that Joe Biden won the 2020 election and will become the 46th President of the United States….President Trump should accept the outcome of the election and facilitate the presidential transition process.”

Sen. Lamar Alexander (R–Tenn.) took the same step yesterday. “The presidential election is rapidly coming to a formal end,” he said. “Recounts are being completed. Courts are resolving disputes. Most states will certify their votes by December 8. Since it seems apparent that Joe Biden will be the president-elect, my hope is that President Trump will take pride in his considerable accomplishments, put the country first and have a prompt and orderly transition to help the new administration succeed. When you are in public life, people remember the last thing you do.”

Yesterday Sen. Bill Cassidy (R–La.) also acknowledged Biden’s victory. “With Michigan’s certifying it’s [sic] results, Joe Biden has over 270 electoral college votes,” he tweeted. “President Trump’s legal team has not presented evidence of the massive fraud which would have had to be present to overturn the election. I voted for President Trump but Joe Biden won. The transition should begin for the sake of the country.”

Sen. Shelley Moore Capito (R–W.Va.) issued a similar statement yesterday. “I have been clear that President Trump—like any candidate for office—has the right to request recounts and to raise legal claims before our courts,” she said. “However, at some point, the 2020 election must end. The window for legal challenges and recounts is rapidly closing as states certify their results in the coming days. If states certify the results as they currently stand, Vice President Joe Biden will be our next president and Senator Kamala Harris will be our next vice president. I will respect the certified results and will congratulate our nation’s new leaders, regardless of the policy differences I might have with them.”

By USA Today’s count, “about a fifth of the Republican Senate has explicitly acknowledged Biden’s victory.” The paper notes that “some GOP senators, including Sens. John Cornyn, Ted Cruz and James Lankford, have called on Biden to receive intelligence briefings but have declined to call him president-elect.”

One of the Senate holdouts is Trump critic-turned-toady Lindsey Graham (R–S.C.), whom Georgia Secretary of State Brad Raffensperger, a fellow Republican, recently accused of suggesting that he should find a way to disqualify Biden-favoring absentee ballots in that state. Graham said that was a misunderstanding. But he has not been shy about reinforcing Trump’s claims of consequential election fraud. “If Republicans don’t challenge and change the U.S. election system, there will never be another Republican president elected again,” he said on Fox News two weeks ago.

“I think the election is not over until the votes are counted and the legal challenges are decided,” Graham told reporters around the same time. “That’s why I would encourage the president not to concede.”

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Earlier today, The Hill published my article on similarities between immigration restrictions and racial discrimination. Here’s an excerpt:

On few if any issues was there a bigger contrast between the parties in the 2020 election than on immigration. President-elect Joe Biden has made it clear that he intends to reverse Donald Trump’s highly anti-immigrant policies, including repealing his travel bans and greatly increasing the number of refugees allowed into the U.S. Race discrimination has likewise been a major focus of public debate, and Biden promises to make combatting it a major focus of his administration.

But the link between the two issues is often ignored. Exclusionary immigration policies are unjust for many of the same reasons as is racial discrimination by the state. Both restrict freedom and opportunity based on arbitrary circumstances of birth. And both have historic roots in bigotry…

Racial discrimination is a grave injustice because it penalizes people for a morally irrelevant characteristic over which they have no control. When racial segregation in the United States prevented black Americans from living where they wished, their liberty and opportunity was constrained based on an arbitrary trait determined by parentage. As Martin Luther King famously put it, people should “not be judged by the color of their skin, but by the content of their character….”

While most Americans condemn racial discrimination, it is much less widely recognized that our immigration restrictions violate the same principles. Like racial segregation, immigration law restricts where people live and work based on circumstances of birth….

Whether your parents were American citizens is just as much beyond your control as whether they were black or white. The same goes for whether you were born in the U.S. Neither trait says anything about the “content of your character….”

In many cases, immigration restrictions stifle liberty and opportunity even more than domestic racial discrimination. Many excluded migrants are consigned to a lifetime of poverty and oppression under the control of brutal regimes whose depredations go beyond those currently experienced by any American minority group.

Consider, for example, the fate of Cuban refugees forced to live under a totalitarian state, or Syrians forced to endure mass murder and terror….

[T]here should be a strong presumption against migration restrictions. Perhaps it can be overcome in situations where violating it is the only way to prevent some great harm. But, as with racial discrimination, a heavy burden of proof must be met before we consign people to oppression and poverty based on circumstances of birth.

I address many of the issues covered in the article in much greater detail in Chapters 5 and 6 my recent book Free to Move: Foot Voting, Migration, and Political Freedom. In that book, I also criticize claims that particular ethnic or racial groups are the “true” owners of various territories, and thereby entitled to exclude those with different backgrounds.

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