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The Volokh Conspiracy

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  • What Supreme Court Experts Want You To Know Before The Last Presidential Debate

    ››› ››› TIMOTHY JOHNSON & PAM VOGEL

    The Supreme Court will be one of the topics discussed at the final presidential debate of this election, moderated by Fox News anchor Chris Wallace on October 19. Supreme Court reporters and legal experts have been explaining the significance of the court throughout the election season, because of the vacancy left by the death of Justice Antonin Scalia in February and the implications for the ideological direction of the court stemming from the election of a new president.

  • Conservative Legal Experts: Trump Is “A Menace,” A “Lunatic,” “A Fascist Thug,” A “‘Useful Idiot’ For Putin,” And A Danger To “Our National Security”

    Scholars From Top Conservative And Libertarian Legal Blogs Warn Of Trump Presidency

    ››› ››› TIMOTHY JOHNSON

    Law professors and experts writing in two leading conservative and libertarian legal blogs are increasingly warning about the prospect of a Donald Trump presidency, arguing that his foreign policy positions and statements on Russia endanger national security and that his domestic policies could make U.S. citizens the victims of fascism.

  • “Pretty Damn Frightening”: Wash. Post’s Volokh Conspiracy Imagines Trump’s Justice Department

    Blog ››› ››› MEDIA MATTERS STAFF

    Contributor to the Washington Post’s Volokh Conspiracy blog Orin Kerr wrote that the Department of Justice under Republican presidential nominee Donald Trump would be “pretty damn frightening.”

    During last week’s Republican National Convention, Trump called for more aggressive policing, threatened critics with lawsuits, and suggested that his opponents, such as Hillary Clinton, be jailed. Trump has also praised strongmen like Russia’s Vladimir Putin and Turkey’s Recep Tayyip Erdogan for their ability to lead and to take control in times of crisis.

    In a July 22 article, Kerr wrote that Trump’s “long-standing passions” of silencing dissenting voices and threatening lawsuits against critics convinced him that a Trump Department of Justice would be “pretty damn frightening.” Kerr argued Trump’s Justice Department would be “aggressive” against those who oppose and criticize it, citing Trump’s “expressed admiration" for dictators such as Putin, his dismissal of other country’s civil liberties violations, and Trump's response to “the ‘vicious’ and ‘horrible’ way that the Chinese government massacred pro-democracy protesters" in Tiananmen Sqaure. From the article:

    Trump’s Nixonian turn to law and order raises an important question: What would a Trump Justice Department look like?

    It would be pretty damn frightening, I think. Trump has two long-standing passions when it comes to law and law enforcement. His first passion is the suppression of protest and dissent. And his second passion is bringing lots of legal actions against his critics and threatening many more to get his way.

    [...]

     A few months ago, Trump expressed admiration for Vladimir Putin as “a strong leader” and “a powerful leader.” He has offered praise for Saddam Hussein. And just this week, when he was asked how he would respond to civil liberties violations by repressive regimes in other countries such as Turkey, Trump explained that he wouldn’t deal with that because the United States had its own mess to clean up. If you read the interview, Trump wasn’t saying that we had to to stop our own civil liberties violations before criticizing those of other governments. Rather, he was saying that the United States couldn’t criticize other countries because it needed to be “much more aggressive” at stopping the “riots” in the streets in places such as Ferguson and Baltimore. It would be “a wonderful thing,” Trump explained, if the response to the “riots” was more aggressive.

    [...]

    Trump also frequently threatens lawsuits as a way to silence his critics. If you want to focus on one example, this Politico piece on Trump’s efforts to intimidate a securities analyst who accurately predicted the failure of a Trump casino is a great read. And this week, a lot of people have seen the frivolous cease-and-desist letter that a Trump lawyer sent just this week to a Trump critic. Think about that. Right in the middle of the GOP convention, just a few days ago, Trump had his lawyers send a threat to bring a baseless lawsuit.

    Now imagine what a President Trump would do with the executive power of the United States granted to him under Article II. Under the unitary executive, President Trump would control all of federal law enforcement.

  • Wash. Post Volokh Conspiracy Blog Lets NRA-Funded Writer Attack Background Checks With Debunked Myths

    UPDATE: Volokh Conspiracy Adds NRA Disclosure

    Blog ››› ››› TIMOTHY JOHNSON

    The Washington Post's Volokh Conspiracy blog failed to disclose a writer's relationship with the National Rifle Association, whose piece offered a false attack on expanded background check legislation.

    The Volokh Conspiracy is a blog operated by law professor Eugene Volokh that has been published on the Post website since January 2014. The blog is editorially independent from the Post and describes its contributors as "generally libertarian, conservative, centrist, or some mixture of these."

    In a November 2 post, writer David Kopel attacked a common version of expanded background check legislation with the false claim that such legislation criminalizes benign activities such as merely handing a friend a gun to look at. He was identified by the site as "Research Director, Independence Institute, Denver, Colorado; Associate Policy Analyst, Cato Institute, Washington, D.C; and Adjunct professor of advanced constitutional law, Denver University, Sturm College of Law" and "author of 15 books and 90 scholarly journal articles."

    That description ignores Kopel's longstanding ties with the NRA, which include large grants given by the NRA to the Independence Institute and Kopel's frequent contribution as a writer to NRA publications. Kopel most recently contributed to the NRA's paranoid and inflammatory America's 1st Freedom magazine in the November 2015 issue.

    According to an investigation of Kopel's relationship with the NRA by journalist Frank Smyth, "Kopel has managed to establish himself as an independent authority on gun policy issues even though he and his Independence Institute have received over $1.42 million including about $175,000 a year over eight years from the NRA."

    Following the publication of Smyth's exposé, The New York Times added language to an opinion piece submitted by Kopel to indicate that the Independence Institute "has received grant money from the National Rifle Association's Civil Rights Defense Fund."

    But the Post's Volokh Conspiracy blog made no such disclosure, even though his post helps advance the NRA's agenda in several ways. Kopel uses the Volokh Conspiracy to give credence to the NRA's go-to argument against expanded background check legislation, attacks by name NRA opponent Everytown for Gun Safety for favoring such legislation, and specifically attacks legislative language in an upcoming ballot initiative in Nevada that the NRA opposes.

    Moreover, Kopel's claim about expanded background check legislation is baseless.

    The NRA previously attacked the legislative language discussed in Kopel's post as it was enacted in Washington state in 2014 via a ballot initiative and in legislation in Oregon in 2015 by claiming that the language was drafted in way that -- either through nefarious design or drafting incompetence -- turned many routine activities involving a gun into crimes.

    Law enforcement officials charged with enforcing background check laws have rejected these hysterical claims, calling them "semantics" arguments. And the NRA and other opponents of expanded background checks have been unable to provide reporters examples of gun owners being prosecuted over technicalities of the law.

    UPDATE:

    Following the publication of this post, the Volokh Conspiracy blog added the following language to Kopel's biography: "Kopel is an NRA-certified safety instructor. The Independence Institute has received NRA contributions."

  • Right-Wing Media "Can't Admit To Doubt" In Coverage Of Obamacare Challenge

    ››› ››› MEAGAN HATCHER-MAYS

    The Supreme Court will soon hear King v. Burwell, a  challenge to tax credits for consumers who live in states that refused to set up their own health care exchanges under the Affordable Care Act (ACA) and instead relied on the federal version. Right-wing media have repeatedly insisted that the ACA can only have been written to deny Americans affordable health insurance, but experts call this argument "political activism masquerading as statutory restraint."

  • Spot The Difference Between The Criminal Defense Attorney NRO Supported And The One It Attacked

    Blog ››› ››› MEAGAN HATCHER-MAYS

    National Review Online contributor Jonathan Adler came to the defense of South Carolina gubernatorial candidate Vincent Sheheen after the Republican Governors Association ran advertisements attacking Sheheen's past as a criminal defense attorney. But NRO supported the successful efforts to smear Debo Adegbile, President Obama's choice to head the Civil Rights Division of the Department of Justice, for supervising the appeal of a death row inmate's unconstitutional sentence.

    Earlier this month, the Republican Governors Association released a pair of ads that attacked Sheheen, a Democrat, because he "made money off criminals," and "represented others charged with violent acts."  Although other right-wing outlets began referring to Sheheen as "the molester's lawyer," Adler quickly condemned both ads. Adler, who also contributes to The Washington Post's libertarian legal blog the Volokh Conspiracy, called the ad "contemptible." He went on to explain that it was "shameful" to "attack [Sheheen] for defending those who, however horrific their crimes, needed a legal defense. A lawyer is responsible for his or her own conduct, and is not responsible for the sins of the client." Adler repeated his condemnation of the ad in a blog post at NRO, writing that "the adversary legal system relies upon the willingness of lawyers to represent even the most unpopular or unpalatable clients." He continued:

    Unfortunately it seems that the attack ad specialists at the Republican Governors Association never learned these lessons, as they have produced two ads assailing South Carolina gubernatorial candidate Vincent Sheheen for having represented criminals when he worked as a criminal defense attorney. I have no doubt these ads are effective, but they are also wrong. Attorneys should not be vilified because they were willing to represent those who needed a defense, and we should fear a system in which such representation can come at the cost of one's political career. 

    The American Bar Association, the South Carolina Bar Association, and the former South Carolina Attorney General and former chair of the Republican Attorneys General all agreed with this condemnation of the RGA's attack on a "fundamental tenet" of American justice. In fact, the ABA has been consistent on this basic principle, having recently seen no difference in the respective attacks against Sheheen and Adegbile.

    Adegbile, like Sheheen, faced serious opposition from conservatives who attacked his previous work as the head of the NAACP Legal Defense Fund (LDF). But right-wing media went even further in his case, personally subjecting Adegbile to racialized attacks and largely misrepresenting his legal record in advance of the vote on his nomination.

    Unlike Sheheen, Adegbile did not have a notable defender like Adler during his confirmation process. Adegbile was attacked by Fox News and other right-wing media figures for being a "cop-killer's coddler," and a "cop-killer advocate," because a group of attorneys at LDF represented death row inmate Mumia Abu-Jamal on appeal. Although LDF lawyers were successful in overturning Abu-Jamal's death sentence due to a constitutional violation in his sentencing, they were not litigating his guilt, and he remains in prison for life. Nevertheless, conservative media were quick to portray Adegbile's criminal defense work as "political" because of his client's past crimes and the statements and actions of an entirely different civil rights attorney

  • What The Media Should Know About Those New Judicial Confirmation Numbers

    Blog ››› ››› MEAGAN HATCHER-MAYS

    Recent media reports on President Obama's judicial nominations misleadingly suggest that his confirmation record is now better than that of his predecessor George W. Bush, but rampant GOP obstructionism is still contributing to an alarming amount of "judicial emergencies" across the country.

    National Review Online and the right-wing Heritage Foundation recently used Obama's overall total as well as his 2014 first quarter judicial confirmation numbers to claim that the president "outpaces" his Republican predecessor, at a rate that will eventually "steamroll" the total number of Bush appointments to the federal bench.

    Unfortunately, this misinformation appears to have been spurred by recent media stories that reported raw confirmation numbers, without sufficient context. For example, according to Politico, Obama is now "outpacing George W. Bush on judges," because he has succeeded in getting 237 judges confirmed, while 234 judges were confirmed "by this point in [Bush's] presidency." This total number of seated judges is what right-wing media choose to focus on in their extrapolation of Obama's ultimate record, while ignoring the president's actual seating rate (confirmations in light of total vacancies). When the number of vacancies Obama has to deal with in comparison to Bush is added to an examination of their respective records, it is evident that the president still has a long road ahead to leave office with a rate similar to his predecessor, especially in the face of Republicans' unprecedented obstructionism.

    Even though the total number of Obama's confirmations has exceeded Bush's, Obama has more vacancies to fill and has to appoint more nominees than his predecessor. According to the Alliance for Justice, "Only 79% of Obama's nominees have been confirmed compared to 89% at this same point for Bush; likewise, Obama has filled only 73% of the total judicial vacancies up to this point in his presidency, while Bush had filled about 82%." As a result, says AFJ, "Bush fared significantly better in getting his nominees confirmed" than Obama has so far.

    This has real-world consequences by delaying and denying justice across the country.

  • Right-Wing Media Continue Misleading Attack on ACA While Everyone's Focused on Hobby Lobby

    Blog ››› ››› MEAGAN HATCHER-MAYS

    On the same day the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby, a significant reproductive rights case under the Affordable Care Act (ACA), right-wing media continued to push discredited misinformation about a different ACA case that could do even more damage to health care reform.

    On March 25, the D.C. Circuit Court of Appeals (finally fully-staffed) heard oral arguments in Halbig v. Sebelius. Unlike Hobby Lobby, Halbig has the potential to undermine the ACA as a whole by rendering the new federal health insurance marketplaces of the exchanges useless.

    Since 2012, right-wing media have engaged in a loud campaign to push this challenge all the way to the conservative justices of the Supreme Court, even though legal experts agree this lawsuit is far-fetched and a distortion of the text, history, and purpose of the ACA. In the wake of yesterday's appellate arguments, conservative media is continuing to lecture Congress that legislators really meant to counter-intuitively destroy the ACA when they passed it, a bizarre argument that the editors of the National Review Online claimed "Democrats might have anticipated if they'd bothered reading the law." The Wall Street Journal took it as an opportunity to again accuse Obama of executive overreach, and invited the judiciary to "check on those abuses" and "vindicate the rule of law" by rewriting history to pretend Congress never intended tax credits in the federal exchanges.

    A federal district court has already ruled against this unlikely argument, holding their "unpersuasive" legal theory about Congress' true intention contrary to common sense, because it would lead to "strange or absurd results."

  • George Will Applauds Old Lawsuit Everyone Else Thinks Is "Stupid"

    Blog ››› ››› MEAGAN HATCHER-MAYS

    Washington Post columnist and Fox News contributor George Will joined right-wing media celebrating a lawsuit he believes will "blow [the Affordable Care Act] to smithereens," even though legal and policy experts agree that the theory the lawsuit is based on is ridiculous.

    In a January 29 column, Will cheered the efforts of Oklahoma Attorney General Scott Pruitt, who is challenging the legality of tax credits the IRS provides to consumers who buy health insurance on the new federal exchange. According to Pruitt's lawsuit, which is the brainchild of Michael Cannon of the conservative Cato Institute and the National Review Online's Jonathan Adler (also a blogger at the right-leaning Volokh Conspiracy, which makes him a  new colleague of Will's), the IRS has no authority to offer the tax credits in the federal exchange. Instead, according to the theory, Congress somehow intended the credits only for exchanges set up by the states.

    Will ignored the fact that a federal court recently ruled against this type of far-fetched challenge.

    Yet the case still sounds pretty good to Will, who used his column to not only celebrate this dubious lawsuit, but to complain about the IRS' "breezy indifference to legality":

    The four words that threaten disaster for the ACA say the subsidies shall be available to persons who purchase health insurance in an exchange "established by the state." But 34 states have chosen not to establish exchanges.

    So the IRS, which is charged with enforcing the ACA, has ridden to the rescue of Barack Obama's pride and joy. Taking time off from writing regulations to restrict the political speech of Obama's critics, the IRS has said, with its breezy indifference to legality, that subsidies shall also be dispensed to those who purchase insurance through federal exchanges the government has established in those 34 states. Pruitt is challenging the IRS in the U.S. District Court for the Eastern District of Oklahoma, and there are similar challenges in Indiana, Virginia and Washington, D.C.

    The IRS says its "interpretation" -- it actually is a revision -- of the law is "consistent with," and justified by, the "structure of" the ACA. The IRS means that without its rule, the ACA would be unworkable and that Congress could not have meant to allow this. The ACA's legislative history, however, demonstrates that Congress clearly -- and, one might say, with malice aforethought -- wanted subsidies available only through state exchanges.

    [...]

    Congress made subsidies available only through state exchanges as a means of coercing states into setting up exchanges.

    In Senate Finance Committee deliberations on the ACA, Chairman Max Baucus (D-Mont.), one of the bill's primary authors, suggested conditioning tax credits on state compliance because only by doing so could the federal government induce state cooperation with the ACA.

  • The Volokh Conspiracy And Washington Post's Move To The Right

    Blog ››› ››› JUSTIN BERRIER

    Jeff BezosThe announcement that The Washington Post is partnering with and hosting the conservative and libertarian-leaning blog The Volokh Conspiracy is evidence that the Post may be moving to the right in the wake of the paper's acquisition by Jeff Bezos.

    On January 21, The Washington Post announced that it had entered into a partnership with The Volokh Conspiracy, a blog that has operated since 2002 and largely focuses on legal issues but has strayed into other areas, including climate denialism. The Post praised the blog in its announcement of the agreement, calling it a "must-read source [that] will be a great addition to the Post's coverage of law, politics and policy." In his first official post, the blog's founder, Eugene Volokh, revealed that the Post granted him "full editorial control."

    The move was celebrated by right-wing media outlets such as the American Spectator, which praised Washington Post owner and Amazon founder Jeff Bezos for highlighting a blog that provides legal commentary "from a [generally] libertarian or conservative perspective," writing, "Perhaps it should stand to reason that a man who made a fortune offering people choices, should offer the same alternatives to his readership. What a novel concept in today's news atmosphere." TownHall editor Conn Carroll cited the acquisition as evidence that Bezos was "clearly moving" the Post "in a libertarian direction."

    Breitbart.com's John Nolte also cheered the decision to host The Volokh Conspiracy, writing that it will "give the Post the sorely needed voices of legitimate conservatives, but unlike Klein the Volokh Conspiracy won't attempt to hide their ideology."