BBC Russian

From a Justice Department press release; Matar is also awaiting trial for murder in New York state court:

A grand jury returned a three-count indictment charging Hadi Matar, 26, of Fairview, New Jersey, with attempting to provide material support to Hizbollah, a designated foreign terrorist organization, engaging in an act of terrorism transcending national boundaries and providing material support to terrorists.

"We allege that in attempting to murder Salman Rushdie in New York in 2022, Hadi Matar committed an act of terrorism in the name of Hizbollah, a designated terrorist organization aligned with the Iranian regime," said Attorney General Merrick B. Garland. "The Justice Department will prosecute those who perpetrate violence in the name of terrorist groups and undermine the basic freedoms enshrined in our Constitution." …

According to the court documents and statements made by the government in court, between September 2020 and August 2022, Matar, attempted to provide material support and resources to Hizbollah, a designated foreign terrorist organization. Matar did this by attempting to carry out a fatwa calling for the execution of Salman Rushdie, which Matar understood was endorsed by Hizbollah.

From Doe v. Mast, decided Wednesday by Judge Norman Moon (W.D. Va.) (for more on the recent Virginia Court of Appeals decision voiding the adoption, see this AP story [Martha Mendoza, Juliet Linderman & Claire Galofaro]):

The facts alleged in Plaintiffs' complaint tell a remarkable story of resilience and duplicity. In the aftermath of a September 2019 joint operation by the United States and Afghan militaries conducted in rural Afghanistan, "Baby Doe" was found in the rubble of her family's home. Her parents and siblings lay dead. She was seriously injured, and was, as a result, taken to a U.S. military hospital for emergency treatment. A short time later, the International Committee of the Red Cross ("ICRC") and the United States and Afghan governments began trying to find, and reunite Baby Doe with, her biological family in Afghanistan.

In February 2020, their efforts paid off. Baby Doe and her family were reunited. Plaintiffs John Doe (Baby Doe's cousin) and his wife Jane Doe are a young, married Afghan couple who became Baby Doe's guardians. They raised Baby Doe as their own daughter for a year and a half. But, at the same time, an American couple's efforts to remove Baby Doe from their care were well underway.

Defendant Joshua Mast—a Marine Corps Major and Judge Advocate—was stationed in Afghanistan in the fall of 2019 where he became familiar with Baby Doe and her case. Joshua knew that the ICRC was searching for Baby Doe's family. Yet in October 2019, Joshua and his wife Defendant Stephanie Mast asked a Virginia family court for temporary custody of Baby Doe, claiming that she was "stateless," and that the Afghan government would soon waive its authority (also called "jurisdiction") over her. At the time, Baby Doe had never been to Virginia. Or the United States. Stephanie had never met her. But based on their representations, the Virginia family court awarded temporary custody to the Masts. Days later, Stephanie secured an interlocutory order of adoption from the Virginia Circuit Court, designating Joshua and Stephanie Mast as Baby Doe's father and mother.

Then, the day before Baby Doe was to be reunited with her biological family in Afghanistan, the Masts came to this Court and sued the government, asking for an emergency order stopping the transfer. Joshua's brother, Defendant Richard Mast, represented them in all these proceedings. When this Court asked Richard why Joshua and Stephanie wished to stop Baby Doe's return to her relatives in Afghanistan, he responded falsely that they did not seek to adopt Baby Doe—only to get her medical care in the United States. This Court denied the motion.

7/26/1892: Justice George Shiras Jr. takes oath.

Justice Elena Kagan did not write many opinions this term—eleven total including her concurrences and dissents—but she had quite a bit to say in remarks to the Ninth CIrcuit Judicial Conference earlier today, including how she handles her frustration with decisions that don't go her way.

Earlier this year, Justice Sotomayor acknowledged occasionally crying over decisions behind closed doors, Kagan confessed to a different response: "I get where the frustration comes from. I'm more of a wall-slammer."

The most headline-grabbing aspects of Justice Kagan's remarks concern the potential of an enforceable ethics code for the Supreme Court. From Politico's report,

"The thing that can be criticized is: Rules usually have enforcement mechanisms attached to them, and this set of rules does not," Kagan told a meeting of federal judges and lawyers.

Kagan said she welcomed the code the court announced last November but that the absence of any means of enforcing it was a glaring omission.

"It's a hard thing to do to figure out who exactly should be doing this and what kinds of sanctions would be appropriate for violations of the rules, but I feel as though we, however hard it is, that we could and should try to figure out some mechanism for doing this," . . .

"I think it would be quite bad … for us to do it to each other," she told the Ninth Circuit Judicial Conference.

One alternative she suggested was some sort of committee of lower court judges who could consider ethics complaints against sitting justices. She also suggested that creating such an enforcement mechanism could benefit justices falsely accused of unethical conduct.

"It would provide a sort of safe harbor. … Sometimes people accuse us of misconduct where we haven't engaged in misconduct. And, so, I think both in terms of enforcing the rules against people who have violated them, but also in protecting people who haven't violated them, I think a system like that would make sense," she said.

Justice Kagan also expressed concern about the proliferation of concurrences that attempt to spin or reframe majority opinions (something Justice Kagan did very little of this term, authoring only two concurrences).

"Everybody sort of tries to spin it one way or another," Kagan said. "Often people use separate opinions to pre-decide issues that aren't properly before the court and that may come before the court in a year or two and try to give signals as to how lower courts should decide that, which I don't think is right." . . .

"I don't know how lower courts are supposed to deal with it really. Mostly, I think they should deal with it by ignoring it, basically," she said.

If a restaurant customer finds a bone in an order of "boneless wings" can they sue? What if the bone causes them an injury?

Today, in Berkheimer v. REKM L.L.C., the Ohio Supreme Court affirmed a lower court judgment concluding that a customer could not sue a restaurant for negligence over an injury allegedly sustained by a chicken bone found in an order of "boneless wings."

Here is how Justice Deters opens his opinion for the four-justice majority:

Michael Berkheimer sued a restaurant, its food supplier, and a chicken farm after he suffered serious medical problems resulting from getting a chicken bone lodged in his throat while he was eating a "boneless wing" served by the restaurant. The trial court determined that as a matter of law, the defendants were not negligent in serving or supplying the boneless wing, and the Twelfth District Court of Appeals affirmed that judgment.

Berkheimer contends that the court of appeals focused on the wrong question—whether the bone that injured him was natural to the boneless wing—in incorrectly determining that the restaurant did not breach a duty of care in serving him the boneless wing. Berkheimer maintains that the relevant question is whether he could have reasonably expected to find a bone in a boneless wing. And he argues that the resolution of that question should be left to a jury.

We conclude that the court of appeals got it right. In a negligence case involving an injurious substance in food, it is true—as Berkheimer argues—that whether there was a breach of a duty of care by a supplier of the food depends on whether the consumer could have reasonably expected the presence of the injurious substance in the food and thus could have guarded against it. But that consideration is informed by whether the injurious substance is foreign to or natural to the food. The court of appeals correctly applied this blended analysis in determining that there was no material question of fact about whether Berkheimer could have reasonably expected a bone to be in the boneless wing and thus could have guarded against it. We therefore affirm the judgment of the Twelfth District.

And from the part of the opinion discussing what one should expect from an order of "boneless wings":

Berkheimer protests that the court of appeals did not give due consideration to the fact that the food item was advertised as a "boneless wing" and that there was no warning given that a bone might be in the boneless wing. Regarding the latter argument, a supplier of food is not its insurer. And regarding the food item's being called a "boneless wing," it is common sense that that label was merely a description of the cooking style. A diner reading "boneless wings" on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating "chicken fingers" would know that he had not been served fingers. The food item's label on the menu described a cooking style; it was not a guarantee.

The dissent wonders what would happen in cases involving food that was advertised as lactose-free or gluten-free. Obviously, such cases are not before us. But unlike the presence of the bone in this case, the presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against.

Justice Donnelly wrote the three-justice dissent. It begins:

The result in this case is another nail in the coffin of the American jury system. The majority has taken it upon itself to decide the facts of this case and has determined that there is no set of facts under which appellant, Michael Berkheimer, the plaintiff in the underlying negligence action, can establish the defendants' negligence. Today, the majority declares as a matter of law that no reasonable person could consider the facts of this case and reach a conclusion contrary to the one it reaches. This is, of course, patently untrue given that I and two other justices of this court dissent from the majority's judgment.

And from the portion of the dissent on what "boneless" means with regard to "boneless wings":

The absurdity of this result is accentuated by some of the majority's explanation for it, which reads like a Lewis Carroll piece of fiction. The majority opinion states that "it is common sense that [the label 'boneless wing'] was merely a description of the cooking style." Majority opinion at ¶ 23. Jabberwocky. There is, of course, no authority for this assertion, because no sensible person has ever written such a thing. The majority opinion also states that "[a] diner reading 'boneless wings' on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating 'chicken fingers' would know that he had not been served fingers." Id. at ¶ 23. More utter jabberwocky. Still, you have to give the majority its due; it realizes that boneless wings are not actually wings and that chicken fingers are not actually fingers.

The majority's burst of common sense was short-lived, however, because its opinion also says that no person would conclude that a restaurant's use of the word "boneless" on a menu was the equivalent of the restaurant's "warranting the absence of bones." Id. Actually, that is exactly what people think. It is, not surprisingly, also what dictionaries say. "Boneless" means "without a bone." . . .

The question must be asked: Does anyone really believe that the parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken? Of course they don't. When they read the word "boneless," they think that it means "without bones," as do all sensible people. That is among the reasons why they feed such items to young children. The reasonable expectation that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it. . . . Instead of applying the reasonable expectation test to a simple word—"boneless"—that needs no explanation, the majority has chosen to squint at that word until the majority's "sense of the colloquial use of language is sufficiently dulled," In re Ohio Edison Co., 2019-Ohio-2401, ¶ 67 (DeWine, J., concurring), concluding instead that "boneless" means "you should expect bones."

A substantial amount of Supreme Court commentary after this past term has focused on Justice Amy Coney Barrett. See examples here, here, and here. Much of the commentary highlights cases in which she wrote separately or broke with other conservative justices. One commentator even referred to her as the "loneliest justice." Relatively little of the commentary has dug very deep into her emerging jurisprudence.

Over at Law & Liberty, Professor John McGinnis offers an insightful analysis of Justice Barrett's early jurisprudence. While he does not agree with everything she has written, he offers a sympathetic take. Her differences with other justices are not a consequence of her moderating or succumbing to the "Greenhouse effect," but rather reflect a sincere effort to get things right.

Liberal hopes and conservative fears about Barrett, however, are misplaced. It is true that she is becoming increasingly confident as she enters her fourth year on the Court. But her decisions are not dictated by ideology but rather by intellect. She is the only former law professor among the originalist-oriented judges and spent much of her time as an academic working on interpretive theory—originalism in constitutional law and textualism in constitutional law. She sees it as part of her judicial duty to make the decisions following these theories as principled and rigorous as possible. In trying to work the law pure, she will naturally depart from some of the rationales and results of her colleagues. Justice Barrett deserves praise for charting her own course.

After surveying and assessing Justice Barrett's approach to originalism, textualism, and the "passive virtues" of judging, he concludes:

This approach should remind us that any legal movement like originalism cannot be sustained only by judges but depends on a larger legal culture. Through both her theorizing and incrementalism, Barrett is helping to summon that culture into being. Commentators are correct that Barrett is forging her own path. But her actions do not signal an ideological shift but rather an effort to make the law more coherent and legitimate. She is embracing the role of the scholar-judge, a position that great justices like Joseph Story and Antonin Scalia also once occupied to the great benefit of legal stability and coherence.

Justice Barrett has explained that she writes separately when she has the need to articulate some differences with the majority opinion. I previously wrote that Justice Barrett should have written separately in Loper Bright, to explain her views on stare decisis and tradition. Chevron has been on the books for nearly half a century, and has become a settled practice in Congress, in the Executive Branch, and in the lower courts–basically everywhere except the Supreme Court. This would seem to to be the sort of thing Justice Barrett would have concerns about jettisoning, rather than Kisorizing, but she remained mum.

I have similar thoughts about Jarkesy. This case was screaming for a Barrett concurrence. Why? There are tensions between Jarksey and some of Barrett's prior writings and joins about "tradition" or settled practice.

In Jarkesy, Justice Sotomayor's dissent observes that there is nearly a century of practice in which agencies have adjudicated civil penalties "in house," rather than in federal court. This longstanding practice should be entitled to some weight, no? And Sotomayor cites Justice Barrett's Vidal concurrence, as well as Justice Kagan's CFPB concurrence, which Justice Barrett joined:

Vice President Kamala Harris graduated from UC Hastings Law School in 1989, and sat for the July 1989 California Bar. She did not pass on her first try. (Brett Stephens flagged this issue in his column.) According to Politico, Harris spent her 2L summer at the San Francisco District Attorney's Office, which offered her a job as a deputy DA after she passed the bar. Harris was admitted one year later in June 1990.

In July 1989, the pass rate for Hastings was 81.4%. The Hastings Law News had this report.

Harris is in good company with other famous people who failed the bar.

And in a coincidence, then-Senator Biden spoke at Hastings in February 1989 during Harris's 3L year.

7/25/1965: Justice Arthur J. Goldberg resigns.

Vice President Kamala Harris at a campaign rally in Wisconsin — Vice President Kamala Harris. (Mark Hertzberg/Zuma Press/Newscom)

Vice President Kamala Harris, President Biden's likely replacement on the Democratic ticket, is known for her advocacy of abortion rights. I think she's largely right on that issue. But she—and many others—overlook the reality that bodily autonomy rationales for abortion rights also justify abolishing a wide range of other restrictions on people's rights to control their bodies. If you really believe in the principle of "My Body, My Choice," the implications go far beyond this one issue. Washington Post columnist Monica Hesse recently highlighted an episode from Harris's career that illustrates the problem:

Listen, nearly everything you need to know about the presidential candidacy of Kamala Harris can be summed up by 19 words she uttered at the 2018 confirmation hearings of Supreme Court Justice Brett M. Kavanaugh.

Harris, then a senator from California serving on the Judicial Committee, had used up several minutes trying to pin down Kavanaugh's opinion on Roe v. Wade. Like nearly every senator on the topic, she was mostly unsuccessful….

Finally, in a cool and deliciously patient voice, Harris changed tactics:

"Can you think of any laws," she asked the nominee, "that give the government the power to make decisions about the male body?"

"Um," Kavanaugh replied, furrowing his brow. "I am happy to answer a more specific question, but — "

"Male versus female," Harris offered, smiling, and when Kavanaugh still expressed confusion, she repeated her 19-word question: "Can you think of any laws that give the government the power to make decisions about the male body?"

Kavanaugh responded, "I am not thinking of any right now."

Kavanaugh got caught flat-footed here, thereby enabling Harris to score a rhetorical point. But it's not hard to think of a wide range of laws that "give the government the power to make decisions about the male body." Some of them impose constraints whose consequences are even more severe than those of abortion restrictions. I listed some of them here, noting the implications of "my body, my choice" for these policies:

1. Organ markets should be legalized. People should be free to sell kidneys, for example (subject, perhaps, to informed consent requirements). If someone wants to sell a kidney, the response to prohibitionists should be: "you can't tell her what to do with her goddamn body, ever." Your kidney is part of your body, and the decision to sell should be your choice. As an extra bonus, legalizing such sales would save many thousands of lives.

2. Laws against prostitution should be abolished. They most definitely restrict people's freedom to control their own bodies (both prostitutes and their customers). The prostitute's body belongs to her, and using it for prostitution is her choice. Prostitution bans also restrict the bodily autonomy of customers. Thus, we should reject laws that punish them, while letting the prostitutes themselves go free. The "johns" own their own bodies no less than the prostitutes do. The kind of consensual sex you engage in with your body should be your choice.

3. The War on Drugs should be abolished. All of it. Not just the ban on marijuana. Its whole purpose is to restrict what sorts of substances you can put in your body. What you put in your body should be your choice. And, like the ban on organ sales, the War on Drugs harms large numbers of people, both in the US and abroad, in countries like the Phillippines and Mexico.

4. The government should not try to control people's diets through "sin taxes," or restrictions on the size of sodas, and other such regulations. Here too, the goal is to restrict what we put in our bodies. If that leads to increased government spending on health care, the right solution is to restrict the subsidies, not bodily autonomy.

5. Draft registration, mandatory jury service, and all other forms of mandatory service should be abolished (if already in force) or taken off the political agenda (if merely proposed). All such policies literally expropriate people's bodies. What work you do with your body should be your choice.

6. We should legalize and use challenge trials for testing new vaccines against deadly diseases. The resulting earlier authorization of Covid-19 vaccines might have saved many thousands of lives. And it could save many more if we permit the use of challenge trials in the future….

8. People should be allowed to take experimental medical treatments not approved by government regulators. That's especially true if the treatments have a significant chance of saving people from death or serious illness.

With the notable exception of mandatory draft registration (which remains limited to males), these policies all constrain women, as well as men. But they are still severe restraints on bodily autonomy, including that of men. Some of them—especially the bans on organ markets and medical treatments approved by the FDA—literally kill large numbers of people.

Moreover, most of these other issues pose easier cases than abortion, where pro-lifers at least have a plausible argument that restrictions are needed to preserve the lives of innocents who did not consent to the procedure. I largely agree with the pro-choice side of the issue; but the moral status of the fetus makes abortion a comparatively difficult question. By contrast, most other restrictions on bodily autonomy—including the War on Drugs and bans on organ markets—are paternalistic in nature. They invade the bodily autonomy of consenting adults, supposedly for their own good.

Elsewhere, I have explained why efforts to distinguish these other cases are either wrong, would justify abortion bans, as well, or some combination of both. For example, the argument that bodily autonomy can be restricted when payment is involved, or when people enter into transactions in part because of poverty, can also be used to justify a wide range of abortion restrictions.

Yet, with rare exceptions, such as her commendable advocacy of marijuana legalization, Harris supports most of these other policies restricting bodily autonomy. It doesn't seem to bother her that they "give the government the power to make decisions about the…. body." In that respect, she is hardly unusual. Most other mainstream politicians take similar stances.

I am not politically naive. The obvious reason Harris and many other political leaders take contradictory stances on bodily autonomy is that abortion rights enjoy broad popularity, while most other bodily autonomy issues are either less salient, less popular, or some combination of both. Being pro-choice on abortion may well help Harris win over crucial swing-voters. Being pro-choice on organ markets or drugs other than marijuana probably won't. It could well hurt.

Right-wing politicians are also often inconsistent on bodily autonomy issues. They too prioritize political expediency.

I don't expect Harris and most other politicians to adopt a more consistent stance anytime soon. But I hope that calling attention to these contradictions might lead more people to give thought to the broader implications of arguments for bodily autonomy. The government should indeed get out of the business of exercising control over people's bodies. On that, Kamala Harris is more right than she herself is willing to admit.

A group of Cuban migrants stand in the sun after arriving in the Florida Keys on January 2. — Cuban migrants in Florida (January 2023). (Pedro Portal/TNS/Newscom)

The Miami Herald reports that, in 2022-23, a staggering 1 million people fled Cuba's communist regime, some 10% of the total population:

A stunning 10% of Cuba's population — more than a million people — left the island between 2022 and 2023, the head of the country's national statistics office said during a National Assembly session Friday, the largest migration wave in Cuban history.

The data confirmed reporting by the Miami Herald and Cuban independent media that sounded the alarm over the mass migration of Cubans amid a severe economic downturn and a government crackdown on dissent in recent years.

According to the official figures made public for the first time, Cuba's population went from 11,181,595 on Dec. 31, 2021, to 10,055,968 on December 2023.

The emigration of 1,011,269 Cubans was the main factor contributing to a massive fall in Cuba's population by the end of 2023, when the population stood at a number similar to what it was in 1985, said Juan Carlos Alfonso Fraga, the head of the National Statistics and Information Office.

This is but the latest and largest of multiple surges of emigration from Cuba since the communist dictatorship was established in 1959. Cubans have long fled the horrific poverty and oppression created by the government's policies. The situation highlights flaws in both left and right-wing views on Cuba and migration.

There is a long history of Western leftists praising Cuba's communist government. But if the regime is as wonderful as they claim, why are so many people fleeing it? The regime's Western apologists have no good answer to that obvious question. The government's much-vaunted supposed achievements on improving health care are, in fact, largely a combination of repression and data manipulation.

US conservatives rightly condemn the communist government. But, in recent years, all too many of them have also advocated preventing Cubans fleeing it from coming to the US. For example, twenty red states filed a dubious lawsuit seeking to shut down a program allowing Americans to sponsor migrants fleeing Cuba and two other socialist dictatorships (Venezuela and Nicaragua); the case was eventually dismissed on procedural grounds by a conservative federal judge, and is now on appeal. If Cuban communism is as awful as conservatives (rightly) claim, it is unjust to use force to deny refuge to its victims, thereby consigning them to lives of poverty and oppression.

For its part, the Biden Administration was right to create the CNVH program, allowing Cubans (as well as citizens of three other Latin American nations wracked by violence and oppression) to come to the US if they can get American sponsors. But it should lift the arbitrary caps and other limitations that have limited the program's effectiveness.

In addition to saving people from oppression and poverty, letting more Cubans come to the US can also benefit our economy. Past waves of Cuban immigration have been crucial to the economic development of Florida. Today's Cuban refugees can do the same—if only we let them.

In sum, much of the left would do well to rethink its views of Cuba's communist government. And much of the right should reconsider its approach to Cuban immigration. Communism is a great evil, and for that very reason it is also evil to close the door on those fleeing it.

The U.S. Capitol is seen underneath $100 bills | Photo 181642336 © Zimmytws | Dreamstime.com — (Photo 181642336 © Zimmytws | Dreamstime.com)

A standard defense of immigration restrictions advanced by many libertarians and conservatives is the idea that they are necessary to restrict welfare spending. If we let in too many immigrants, spending will increase and the government will either have to massively raise taxes or face a dangerous fiscal crisis. But a new report by the bipartisan Congressional Budget Office adds to the already extensive evidence that immigration actually improves the government's fiscal position. Specifically, the CBO finds that the surge in migration since 2021 will create a net savings of $970 billion for the the federal government between 2024 and 2034. CBO reaches this conclusion partly because most immigrants pay more in taxes than they take out in government benefits, and partly because immigration increases economic growth, which in turn increases tax revenue.

This is far from the first study reaching this sort of conclusion. I discuss some of the others in Chapter 6 of my book Free to Move. My Cato Institute colleague Alex Nowrasteh published a more recent and extensive overview last year. Unlike the CBO study, his analysis considers effects on state and local budgets, as well as the federal one.

Even if the fiscal effects of immigration really were negative, they could be addressed by the "keyhole solution" of further limiting immigrants' access to government benefits, rather than the far crueler and more harmful measure of excluding them entirely. I cover this approach in some detail in my book, and consider various ways it could work.

Improving the federal government's awful balance sheet is far from the only beneficial economic effect of immigration. It also promotes growth, entrepreneurship, and innovation, especially since immigrants make disproportionate contributions on the latter two fronts.

Obviously, fiscal arguments are far from the only possible rationale for constraining immigration. Restrictionists can still argue that we should keep people out because of possible negative effects on culture, crime, and the like. If these other types of harms are large enough, they could potentially outweigh beneficial economic effects. But fiscal issues do play a major role in debates over immigration policy, and they are probably the most common argument advanced by restrictionists who also consider themselves to be free market advocates.

Today, in Consumers' Research v. FCC, the en banc U.S. Court of Appeals for the Fifth Circuit concluded that the so-called "Universal Service" fee imposed by the Federal Communications Commission is unconstitutional. Specifically, by a vote of 9-7, the court concludes that this fee is a tax, the authority for which was delegated to the FCC which, in turn, subdelegated authority to set the ex to a private entity (the Universal Service Administrative Company). Whether or not either of these steps alone would create a constitutional problem under the nondelegation doctrine, the court concluded that the combination of the two delegations is unconstitutional.

Judge Oldham wrote for the court, joined by Judges Jones, Smith, Elrod, Willett, Ho Duncan, Englehardt and Wilson. His opinion begins:

In the Telecommunications Act of 1996, Congress delegated its taxing power to the Federal Communications Commission. FCC then subdelegated the taxing power to a private corporation. That private corporation, in turn, relied on for-profit telecommunications companies to determine how much American citizens would be forced to pay for the "universal service" tax that appears on cell phone bills across the Nation. We hold this misbegotten tax violates Article I, § 1 of the Constitution.

After dispensing with various preliminary matters, Judge Oldham outlines the substantive claim.

Petitioners contend the universal service contribution mechanism violates the Legislative Vesting Clause. See U.S. Const. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."). We agree. We (A) explain that the power to levy USF "contributions" is the power to tax—a quintessentially legislative power. Then we (B) explain that Congress through 47 U.S.C. § 254 may have delegated legislative power to FCC because it purported to confer upon FCC the power to tax without supplying an intelligible principle to guide FCC's discretion. Next, we (C) explain that FCC may have impermissibly delegated the taxing power to private entities. Finally, we (D) explain that we need not definitively answer either delegation question because even if § 254 contains an intelligible principle, and even if FCC was permitted to enlist private entities to determine how much universal service tax revenue it should raise, the combination of Congress's broad delegation to FCC and FCC's subdelegation to private entities certainly amounts to a constitutional
violation.

And from later in the opinion:

FCC has not delegated to private entities a trivial, fact-gathering role. It has delegated the power to dictate the amount of money that will be exacted from telecommunications carriers (and American consumers in turn) to promote "universal service." In other words, it has delegated the taxing power. And the delegation is not even "to an official or an official body, presumptively disinterested," but rather to private persons vested with no government power and with interests that "often are adverse" to those whom they are taxing. Carter Coal, 298 U.S. at 311; see also Ass'n of Am. Railroads v. U.S. Dep't of Transp. ("Amtrak III"), 821 F.3d 19, 29 (D.C. Cir. 2016) ("Delegating legislative authority to official bodies is inoffensive because we presume those bodies are disinterested, that their loyalties lie with the public good, not their private gain. But here, the majority producers may be and often are adverse to the interests of others in the same business." (citation and quotation omitted)). We accordingly have serious trouble squaring FCC's subdelegation with Article I, § 1 of the Constitution.

Note that this is not a full catalog of the problems here. Judge Oldham continues:

Even if the Constitution does not categorically forbid FCC's delegation to USAC and private telecommunications carriers, 47 U.S.C. § 254 does not authorize it. And there is no precedent establishing that federal agencies may subdelegate powers in the absence of statutory authorization. To the contrary, the only Supreme Court cases blessing private delegations involved explicit statutory authorizations.

And so he summarizes:

Even if the Constitution does not categorically forbid FCC's delegation to USAC and private telecommunications carriers, 47 U.S.C. § 254 does not authorize it. And there is no precedent establishing that federal agencies may subdelegate powers in the absence of statutory authorization. To the contrary, the only Supreme Court cases blessing private delegations involved explicit statutory authorizations. . . .

We are highly skeptical that the contribution factor before us comports with the bar on congressional delegations of legislative power. And we are similarly skeptical that it comports with the general rule that private entities may not wield governmental power, especially not without express and unambiguous congressional authorization. But we need not resolve either question in this case. That is because the combination of Congress's sweeping delegation to FCC and FCC's unauthorized subdelegation to USAC violates the Legislative Vesting Clause in Article I, § 1.

And he concludes:

American telecommunications consumers are subject to a multibillion-dollar tax nobody voted for. The size of that tax is de facto determined by a trade group staffed by industry insiders with no semblance of accountability to the public. And the trade group in turn relies on projections made by its private, for-profit constituent companies, all of which stand to profit from every single tax increase. This combination of delegations, subdelegations, and obfuscations of the USF Tax mechanism offends Article I, § 1 of the Constitution.

Judge Elrod wrote a concurring opinion, joined by Judges Ho and Engelhardt, and Judge Ho wrote a concurring opinion for himself.

Judge Stewart wrote the principal dissent, joined by Judges Richman, Southwick, Haynes, Graves, Higginson, and Douglas. It begins:

I dissent because the Universal Service Fund ("USF") is not unconstitutional. Section 254 of the Telecommunications Act of 1996 provides an intelligible principle and the Federal Communications Commission ("FCC") maintains control over the Universal Service Administrative Company ("USAC"), the private entity entrusted to aid its administration of the USF. The majority's exhaustive exegesis about policy, history, and assorted doctrines does not eclipse the consistent holding of three sister circuits that have addressed constitutional challenges to Section 254. All have held it constitutional under the intelligible principle test. The majority has created a split in a sweeping opinion that (1) crafts an amorphous new standard to analyze delegations, (2) overturns—without much fanfare— circuit precedent holding that this program collects administrative fees and not taxes, (3) blurs the distinction between taxes and fees, and (4) rejects established administrative law principles and all evidence to the contrary to create a private nondelegation doctrine violation.

Judge Higginson also wrote a separate dissent, joined by Judges Stewart, Southwick, Graves, and Douglas.

A petition for certiorari will almost certainly be filed by the federal government, and certiorari will very likely be granted.

From Doe v. St Lawrence Univ., decided earlier this month by Magistrate Judge Daniel Stewart (N.D.N.Y.), and just appealed to the District Judge:

In 2022, both Plaintiff and Defendant Moralez were employed as professors at SLU. Plaintiff alleges that on April 12, 2022, she attended an off-campus meeting at Moralez's home to "talk about future courses to be taught by [Plaintiff] in sociology that would be used to also satisfy requisites for a major or minor in Public Health." That night, Plaintiff alleges that Moralez drugged and brutally raped her…. It is unclear whether SLU fired Moralez, but Moralez claims that "[s]ince leaving SLU [he has] been unable to secure a teaching position at any level."

Courts are split on whether plaintiffs alleging rape should be allowed to proceed pseudonymously (see Appendices 2a & 2b of The Law of Pseudonymous Litigation), and the Magistrate Judge acknowledged that "[a]llegations of sexual assault are 'paradigmatic example[s]' of highly sensitive and personal claims and thus favor a plaintiff's use of a pseudonym." But he noted that "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym," and concluded that pseudonymity shouldn't be allowed here:

On Thursday, July 25, the American Enterprise Institute will be hosting a conference on the past and future of the impeachment power. Information can be found here. In addition to me, the line-up includes former Senator William Cohen, Judge Robert Sack, Philip Wallach, and Jack Goldsmith, among others.

On Thursday, August 1, Axios will be hosting a conference on campus free speech. Information can be found here. In addition to me, the line-up includes Representative Virginia Foxx and DOE Assistant Secretary Catherine Lhamon.

Both events will be live in DC and streamed on the web.

My new book on campus speech issues is You Can't Teach That! and is now available. Jonathan Rauch says, "Everyone who cares about higher education should read it."

My new book on the impeachment power is available for pre-order and will be published in the fall. Michael McConnell says, "Keith Whittington has done the country a favor."

In Meyler v. Mayor & City Council of Ocean City, decided last month by Judge James Bredar (D. Md.), police officers came over to Meyler and his friends near a bar at 2 am, because one of the friends was playing music loudly on his car radio.

One of the responding officers, Officer Foreman, was mounted on a police horse named Moose…. [At some point in ther action, as shown on the video], Meyler turns toward Moose and makes some clicking sounds. Moose does not immediately react, but about five seconds later he visibly moves his head and appears to take a step or two in response to the clicking, after having previously been still. Foreman's hands can then be seen briefly pulling on the reins to stop Moose's movement; after that point Moose appears calm and still again, and remains calm for the remainder of the video….

After more conversation among the officer, Meyler, and Meyler's friend, and more clicking by Meyler at the horse, Meyler "was arrested for failure to obey a lawful order and interference with a police animal," though the charges were later dropped. Meyler sued for false arrest, in part on the grounds "that he suffered hand abrasions, numbness, and back pain as a result of being handcuffed." But the court rejected Meyler's claims; here's an excerpt:

Longtime VC readers may recall the "censorious thuggery" of Geauga County, Ohio Judge Timothy Grendell. His conduct from the bench has long been controversial, but he nonetheless ran for re-election unopposed in 2020.

When I last blogged about Judge Grendell, it was after reports he threatened to hold a mother in contempt of court for having her child tested for COVID-19 even though the test was ordered by a doctor prior to a hospital admission. In another case, Judge Grendell sent two teenage boys to juvenile detention for the weekend because they refused a court-ordered visit from their estranged father.

Judge Grendell's conduct has attracted notice in Ohio, and he is now subject to disciplinary proceedings. Attorneys with the Ohio Supreme Court's Office of Disciplinary Counsel are seeking to have Judge Grendell's law license suspended. According to the attorneys, Judge Grendell is a "quintessential bully" who has repeatedly "abused his power and abandoned his role as a neutral advocate." From their most recent filling:

Our court has disciplined rogue judges in the past. But this state has never seen a judge inflict pain and suffering on two innocent, young, and vulnerable children, while claiming to have acted in their best interests. Respondent acted in his and Glasier's interests and no one else's. Despite respondent's attempt to complicate this disciplinary matter by insinuating that only he could possibly understand the complexity and application of the juvenile rules, this is a simple case. Respondent is a bully who abused his power, abandoned his role as a neutral advocate, and worked to advance Glasier's and his own interests to the detriment of Hartman and her family.

The above concerns the case in which Judge Grendell had two boys detained for refusing to visit with their estranged father. The complaint also raises concerns about Judge Grendell's handling of other matters and political conduct inappropriate for a sitting judge. All filings are available here.

The initial complaint was filed in November 2022, and there was a hearing before the Ohio Board of Professional Conduct earlier this year. If the Board recommends sanction, it will be reviewed by the Ohio Supreme Court.

The Volokh Conspiracy

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Congressional Budget Office Estimates Recent Increase in Immigration will Reduce the Budget Deficit

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En Banc Fifth Circuit Concludes FCC's "Universal Service" Fee Is Unconstitutional

A majority of the judges concludes this fee constitutes a tax, the authority for which is improperly delegated.

No Pseudonymity for Plaintiff Professor Who Sued Colleague and University Alleging Rape

Will Be Talking about Impeachment and Campus Free Speech in DC

Check it out live or online

No Clearly Established Right to Communicate with a Horse

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Will an Ohio Judge Lose His Law License?

The Office of Disciplinary Counsel comes for the "censorious" Judge Tim Grendell

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