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President Donald Trump said yes to the budget bill to keep open government, but then bypassed Congress and declared a national emergency to free up funding to build his long-promised border wall.

President Trump "outfoxed" Democrats by signing the bipartisan border security compromise, Dan Bongino said Saturday on "Fox & Friends."

The court concluded that property may only be condemned for projects that will proceed in "the reasonably foreseeable future."

In CRDA v. Birnbaum, an important decision issued yesterday, a New Jersey appellate court ruled that the state's Casino Reinvestment Development Authority (CRDA) could not use eminent domain for the purpose of seizing private property in order to "bank" it for a possible future use. Under the New Jersey state constitution (like the federal constitution), land may not be taken by the government unless it is for a "public use." The Appellate Division of the Superior Court of New Jersey upheld the trial court's 2016 decision concluding that there cannot be a public use unless CRDA can provide "evidence-based assurances that" it will use the land for a project that "would proceed in the reasonably foreseeable future."

In this case, CRDA sought to condemn Charlie Birnbaum's house even though "[a]t the time of the [trial court] decision under review, the CRDA had no specific redevelopment plans under consideration for the Project; it had not issued a request for proposals (RFP) to prospective developers, and no developer had committed to redeveloping within the Project area." CRDA claimed that "it is statutorily entitled to bank land for future public use, without any temporal limitation."

Particularly since the US Supreme Court's controversial 2005 decision in Kelo v. City of New London, which ruled that private economic development projects are a permissible "public use," there has been a longstanding debate over exactly what qualifies as a public use under federal and state constitutions. Proponents of the "narrow view" of public use argue that it only covers publicly owned projects or private ones that the general public has a legal right to use. Advocates of the broad view (endorsed by the Kelo decision), contend that virtually anything that might potentially benefit the public in some way qualifies as a public use. I believe the narrow view is correct, for reasons outlined in detail in my book on the Kelo case. But even those who otherwise favor a broad view of public use should recognize that unlimited "banking" of property for a potential, as yet unspecified, future use doesn't qualify. In such a situation, there is no assurance that the government will ever use the condemned property at all, much less for a purpose that somehow benefits the public.

The trial court decision in the Birnbaum case (which I analyzed here), puts the point well:

In this Court's view, the CRDA is not empowered to condemn a property only to have it sit idly, for years on end, as they wait for the right project to present itself. This has already happened in many of the surrounding properties that sit vacant waiting for a project to come forward …..[T]o meet constitutional and statutory muster, to justify the taking of the Birnbaum property, there must be some reasonable assurance that the Birnbaums' property will be put to a public use within the next year or the next ten years.

Those who follow eminent domain and property rights issues may recall that CRDA is the same state government agency that in 1998 sought to condemn private homes in order to build a limo parking lot for one of Donald Trump's casinoes. That taking, too, was struck down by a state court as a violation of the New Jersey constitution, because it was not for a legitimate public use. The Birnbaum taking is arguably even more egregious than that in the Trump case. In the latter situation, at least Trump and the CRDA had a clear plan for what they were going to build on the condemned property. Both cases were litigated by the Institute for Justice, a prominent libertarian public interest law firm that has long been the nation's premier advocate of tightly enforcing constitutional constraints on eminent domain. For IJ's analysis of the Birnbaum ruling, see here.

In the aftermath of the Kelo decision, many states enacted legislation to try to limit the use of eminent domain for the benefit of influential private interests. While some states enacted valuable reforms that really do constrain eminent domain abuse, others enacted largely ineffective ones that only pretended to address the problem. New Jersey was the last of the 45 states that reformed their laws after Kelo, and its reform is one of the weakest, in some ways making things worse rather than better. But New Jersey courts have, under their state constitution, nonetheless imposed tighter limitations on the use of eminent domain than is the case in some other states, such as neighboring New York.

In the aftermath of yesterday's ruling, CRDA says that it will "respect" the court's decision. Hopefully, this will finally put an end to Charlie Birnbaum's prolonged struggle to save his family home. The agency is also said to have "largely shifted its focus from land acquisition and has sought to auction off some of its tax-exempt holdings." If so, it's about time for it to end its longstanding pattern of abusive condemnations.

NOTE: I have done pro bono work for the Institute for Justice in other eminent domain cases. However, I had no involvement in the Birnbaum litigation.

A clear violation of the First Amendment -- and not even justified under the College's own reportedly stated reasons.

Townhall (Beth Baumann) reports that the Orange Coast College chapter of the Young Americans for Freedom was barred from displaying this banner at a campus student recruitment fair. The careful reader will doubtless say, "Ah, it must be because the college is deeply committed to historical precision, and officials insist that the Amendment has only existed as an Amendment, rather than just as a proposed Amendment, since 1791 rather than 1789." Well, no: According to the Townhall report, the College objected to the banner's depicting the sillouettes of two rifles—which, college officials said, were forbidden by a college policy that bars not just firearms but any "facsimile of a firearm."

But such a decision (if accurately reported) violates the First Amendment. Once a university opens up a space where students may display banners, it then may not restrict such displays unless the restriction is viewpoint-neutral and reasonable. It's hard to see a viewpoint-neutral rationale for banning even sillhouette displays of guns, which no-one would confuse for real guns.

But even if the rationale is viewpoint-neutral, it's not reasonable: To be reasonable, a restriction on speech within a government-created forum must be "consistent with the [government's] legitimate interest in 'preserv[ing] the property ... for the use to which it is lawfully dedicated.'" Nothing about the display of rifle sillhouettes interferes with the government's legitimate interest in preserving campus property for its normal uses, except insofar as such a display conveys a pro-gun viewpoint to which some people object.

Indeed, Burnham v. Ianni (8th Cir. 1997) (en banc), rejected an attempt to exclude pictures of guns from a government-created forum (there, a display of professors' research interests), because such an exclusion was both unreasonable and viewpoint-based. The Eighth Circuit en banc majority reasoned,

The display case was designated for precisely the type of activity for which the Kohns and Professors Burnham and Marchese were using it. It was intended to inform students, faculty and community members of events in and interests of the history department. The University was not obligated to create the display case, nor did it have to open the case for use by history department faculty and students. However, once it chose to open the case, it was prevented from unreasonably distinguishing among the types of speech it would allow within the forum. Since the purpose of the case was the dissemination of information about the history department, the suppression of exactly that type of information was simply not reasonable.

The same reasoning would apply here: The recruitment fair was designated for precisely the type of activity for which YAF was using it. It was intended to inform students of events put on by and interests of student groups. The University was not obligated to create the fair, nor did it have to open it for student groups. However, once it chose to open the fair, it was prevented from unreasonably distinguishing among the types of speech it would allow within the forum. Since the purpose of the fair was the dissemination of information about student groups, the suppression of exactly that type of information was simply not reasonable.

But beyond this, it doesn't even make sense to read the college policy as banning the banner. The policy, titled "WEAPONS PROHIBITED ON DISTRICT PROPERTY," says,

Firearms, knives, explosives or other dangerous objects, including, but not limited to any facsimile of a firearm, knife, or explosive, are prohibited on District property, at the colleges, or any college satellite location.

A sillhouette of a rifle isn't a "facsimile of a firearm" as that term is normally used, in legal contexts or others. A facsimile would be something that, in the words of one state statute (from Wisconsin), "means any replica, toy, starter pistol or other object that bears a reasonable resemblance to or that reasonably can be perceived to be an actual firearm."

Facsimiles are potentially dangerous (whether or not you think they should be banned) because they might be mistaken for real guns, and thus be perceived as threats, whether deliberately (for instance, if someone uses a facsimile gun to rob someone) or accidentally (for instance, if police officers think a facsimile gun that someone is playing with is a real gun). An image on a banner lacks those qualities; it can't "reasonably ... be perceived to be an actual firearm," and it doesn't bear a resemblance to a gun in the sense of looking like a gun (rather than like a picture of a gun). And that's especially clear because the policy bans "dangerous objects, including ... any facsimile of a firearm"; that is most recently read as barring facsimiles that are actually dangerous (i.e., ones that can be mistaken for a gun) rather than pictures that are not at all dangerous.

So I think the policy itself doesn't violate the First Amendment, precisely because it is properly read as not extending to pictures such as this. But if the policy is read as covering such pictures on banners, then it does violate the First Amendment. And in any event, the college's actions, if accurately reported by Townhall, violate the First Amendment.

Townhall reports that "Orange Coast College did not immediately respond to Townhall's request for comment"; I likewise reached out to the College media relations after-hours phone number and e-mail address this (Saturday) morning, and haven't yet heard back from them. If I do hear back, I will of course update the post accordingly.

For cases that uphold even K-12 students' right to display images of firearms (there, on T-shirts), see Schoenecker v. Koopman (E.D. Wis. 2018) and Newsom ex rel. Newsom v. Albemarle County School Board (4th Cir. 2003).

Dr. Drew Pinsky urged actor Jonah Hill to "double-down" on his traditional form of comedy on Fox Nation's "UN-PC" after Hill said in a recent interview that he wants to "challenge traditional masculinity" in his films.

Trump 2020 campaign adviser Lara Trump slammed Andrew McCabe Saturday after the former FBI deputy director confirmed in a recent interview that he ordered an obstruction of justice probe against the president.

Former Utah Rep. Jason Chaffetz blasted "pathetic and inept" Congress for not working to halt illegal immigration until President Trump's decision to declare a national emergency at the southern border.

President Trump made the right decision by declaring a national emergency on the southern border, Fox News contributor Tom Homan said Saturday.

In his latest "My Take" commentary for Fox Nation, Stuart Varney said Democrats are "learning the downside of A.O.C." after Amazon announced it would not move to Long Island City, N.Y. as planned.

A few thoughts on the First Circuit's separation of powers ruling on the Puerto Rico bankruptcy board

This afternoon the First Circuit issued a very important opinion holding unconstitutional the appointments to the Financial Oversight Management Board created by the PROMESA statute, which exercises authority over Puerto Rico's bankruptcy. If this were a case of ordinary federal authority, it seems quite likely that the board members would have to be appointed by the President and subject to Senate confirmation. But the board members were not confirmed by the Senate, and subject to other appointments restrictions, so the question is whether something about Puerto Rico's legal status changes the constitutional analysis.

The First Circuit frames this in several ways I find quite confusing (such as whether the Article IV Territories Clause trumps or displaces the Article II Appointments Clause), but in my view the question comes down to this: are the board members "Officers of the United States" or are they "Officers of the Commonwealth of Puerto Rico"? If they are "Officers of the United States," then the Appointments Clause applies in terms. But, as I've written in this draft article, the reason territorial courts have traditionally been held constitutional is that they exercise the "judicial power of" their respective territories or commonwealths. (This is also why elected territorial legislatures are constitutional: they exercise the legislative powers of their respective territories, not the executive or legislative power of the United States.) So the question is whether the board members have an analogous status as territorial officers.

As I understand it, the First Circuit's reason for thinking that they are officers "of the United States" is that:

The Board Members trace their authority directly and exclusively to a federal law, PROMESA. That federal law provides both their authority and their duties. Essentially everything they do is pursuant to federal law under which the adequacy of their performance is judged by their federal master. And this federal master serves in the seat of federal power, not San Juan. The Board Members are, in short, more like Roman proconsuls picked in Rome to enforce Roman law and oversee territorial leaders than they are like the locally selected leaders that Rome allowed to continue exercising some authority.

By contrast, as to territorial legislatures and officers it says:

The elected officials to which the Board and the United States point -- even at the highest levels -- are not federal officers. They do not "exercise significant authority pursuant to the laws of the United States." Rather, they exercise authority pursuant to the laws of the territory. Thus, in Puerto Rico for example, the Governor is elected by the citizens of Puerto Rico, his position and power are products of the Commonwealth's Constitution, see Puerto Rico Const. art. IV, and he takes an oath similar to that taken by the governor of a state.

I'm not sure whether this is the right answer, but it seems to me that this is at least roughly the right question to be asking.

Finally, the First Circuit's opinion takes a strange turn at the end when it employs the "de facto officer doctrine" to uphold everything that the board has done so far. I'm no expert on the doctrine, but at a glance this seems in tension with Supreme Court cases like Ryder and Nguyen which reversed decisions made by invalidly-appointed officers notwithstanding the doctrine. So I might expect both sides of the litigation to seek Supreme Court review, and at least one of them to get it.

Three-time NASCAR Winston Cup series champion Darrell Waltrip joined Dagen McDowell on Fox Business Network to preview the 2019 Daytona 500 and discuss the future of the sport which has seen its ups and downs over the last decade.

White House Press Secretary Sarah Sanders contrasted President Trump's national emergency executive action with President Obama's executive order implementing the DACA program for children of illegal immigrants.

Lisa Boothe argued on "Outnumbered" Friday that Democrats have "embraced lawlessness" during the last few months of national debate on President Trump's border wall.

Gen. Jack Keane sat down with Mark Levin for a fascinating, in-depth conversation on America's foreign adversaries, which will air Sunday at 10:00 p.m. ET on "Life, Liberty & Levin."

Republican New York State Assembly member Nicole Malliotakis slammed the Democrats who are taking a victory lap after Amazon’s decision to drop plans for a New York City headquarters.

Jesse Watters read from another collection of texts he received from his mother during the show.

Federal Communications Commission Chairman Ajit Pai is threatening major wireless carriers with "regulatory intervention" if they don't take action to stem robocalls.

Several Angel Moms -- parents who lost their children to illegal immigrant crime -- attended President Trump's address at the White House Rose Garden on Friday.

"Fox News Sunday" anchor Chris Wallace said President Trump's declaration of a national emergency at the southern border will "play well" with the president's base.

Abby Hornacek is the newest addition to the Fox Nation roster? Check out some fun facts and photos. 

On Fox Nation's "Hannity On Air," Sean Hannity predicted what will happen after President Trump declares a national emergency in order to fund his long-promised border wall.

The more a president governs unilaterally, the greater the stakes of every election, and that's a bad thing.

There are lots of things one could say about Trump's invocation of an emergency statute to "build the wall." Other commentators, including Ilya, have said most of them, so I'll refrain, but in short it's a terrible idea, and I hope the courts stop it.

I did want to add one additional consideration that goes beyond the issue of the wall and goes to the general issue of presidents acting unilaterally on significant, controversial issues, regardless of whether they have the technical legal authority under broad, vague, statutes.

During the Obama administration, defenders of presidential unilateralism argued vociferously that (a) the president was elected to get things accomplished; (b) Congress, via Republican majorities in the House, and later the House and Senate, was being obstructionist; and (c) therefore, the president was within his rights to use his full authority to govern unilaterally, even in the face of longstanding contrary norms. For example, Obama, like Trump, was stymied by Congress on his preferred immigration policy, so he used his broad statutory authority under the immigration laws to resolve the "Dreamer" issue indefinitely, using that authority far more broadly, more consequentially, and in more direct defiance of Congress than any president had previously.

As a constitutional matter, I think this argument and analogous arguments made (less coherently) by Trump administration defenders have things backwards. Congress and not the president is given the legislative power, so outside of certain military and foreign affairs matters it's Congress, not the president, that is elected to get things accomplished. So in any showdown between the president and Congress, if one party can be deemed obstructionist it's presumptively the president.

But my objections to presidential unilateralism go beyond the constitutional. In my view, historically one of the great advantages of living in the United States is that most people did not care about national politics nearly as much as in other countries. This had the advantages of not wasting people's time thinking about politics, allowing people of differing ideologies to get along, and just in general making life more pleasant by limiting the practical importance of elections.

Of course, a major reason people did not care about national politics that much, even if they had strong feelings about particular issues, is that the national government historically had relatively limited powers. But another reason, one that transcended the scope of federal power, was that it our Constitution makes radical change, or really any significant change, very difficult. You need to get a piece of legislation through each house of Congress (each of which has various internal rules that make it hard to do so) and then get the president to agree.

This obviously has its downsides, as it creates a huge status quo bias, and the status quo is often far from ideal. On the other hand, voters could be assured that whomever got elected, Republican or Democrat, major changes were unlikely. This was especially true because until recently, the parties were divided more on geography and the cultural background of their voters than on ideology.

Over the last forty years or so, however, the parties have become strongly divided ideologically, which by itself raises the stakes of national elections; electing a Republican will bring into government a very different group ideologically than electing a Democrat. Moreover, delegation of authority by Congress to agencies gives the president a fair amount of discretion to change policy through his appointments of executive officials.

Nevertheless, the stakes remain relatively limited so long as the president adheres to traditional norms and refrains from major policy innovations without going through Congress. Once the president instead chooses to in effect "legislate" on important matters unilaterally, the stakes get raised substantially, and the U.S. becomes more like parliamentary systems where every election seems like life or death to partisans, inevitably increasing societal tension over ideological and other differences.

So, constitutional structure aside, why is presidential unilateralism bad? Because our system was designed to make major shifts in government policy difficult, and that's a good thing because it lowers the stakes of politics. We had experience in 1861 with what happens when a significant part of the country believes that the national government has become arrayed against it, and it's not an experience we should want to repeat on any scale.

On the new episode of "Moms" on Fox Nation, Carrie Utz told the tragic story of how her mother and godmother were killed by a hit-and-run driver who was in Arizona illegally.

There's so much that goes into building a new house, superyacht or sports stadium that the average taxpayer can't even imagine.

Andrew Pollack, father of Meadow Pollack, reflected on the year that has transpired since she was murdered in the mass shooting at Marjorie Stoneman Douglas High School in Parkland, Fla.

Guyora Binder and Luis Chiesa break it down, and some quibbles.

Following up on my post about the case of Michelle Carter who texted her boyfriend to kill himself, my colleague Brenner Fissell pointed me to to a new article by Guyora Binder and Luis Chiesa that deals with the issue of encouragement of suicide. In "The Puzzle of Inciting Suicide", they view the question of criminal liability in such situations as demonstrating a conflict between libertarian and utilitarian intuitions. Under a libertarian understanding, suicide is generally seen as an autonomous act whose encouragement should not be criminalized. Under utilitarianism, however, "inciting suicide seems well worthy of criminalization" because "[s]uicide is a serious public health problem."

They view the trial court decision in Commonwealth v. Carter as struggling with that tension and splitting the difference between not finding any liability (as per libertarianism) and finding Carter guilty of murder (under a utilitarian foreseeability theory) by declaring her guilty of involuntary manslaughter. Their account strikes me as plausible overall, and I recommend their article for its excellent overview of the history and case law in this area. Having recognized their significant contribution, I would like to point out two quibbles.

First, I am not sure I agree with their conclusion that the trial court

embraced the utilitarian foreseeability standard that now prevails in most American jurisdictions. In doing so, it rejected the more libertarian standard of causation that imposes responsibility for results of a wrongful act not followed by intervening voluntary action.

The trial court, as quoted by the Massachusetts Supreme Judicial Court, emphasized that the victim "breaks that chain of self-causation by exiting the vehicle". The SJC (whose opinion I understand was not out yet at the time of the publication of Binder and Chiesa's article) interpreted the trial court as follows:

[The trial court judge's] finding of causation in this context, at that precise moment in time, includes the concept of coercion, in the sense of overpowering the victim's will.

This actually strikes me as an attempt on the part of the trial court to explain the guilty finding in terms that Binder and Chiesa would deem libertarian rather than utilitarian as such. Indeed, an important part of my criticism of the trial court's conviction and SJC's upholding thereof is based on my questioning whether there truly was no intervening voluntary action on the part of the victim.

The SJC seems almost completely focused on causation rather than foreseeability, but causation played an important role for the trial court as well. These decisions suggest that the courts wanted to convince those with a more libertarian conception of suicide as well (despite my belief that this did not succeed in the end). Perhaps Binder and Chiesa will elucidate their understanding of the case further now that the SJC decision is out.

Second, I query whether the all-or-nothing hypothesis, whereby we must let Carter go free vs. convict her of a serious criminal offense, is quite so binary in reality. There are several tools both inside and outside the law at our disposal to punish Carter, potentially provide some recovery for the victim's family, and express societal disapproval of her conduct.

For one, this is the kind of scenario that may call for a tort remedy. For another, the story of this encouraged suicide will likely follow Carter on the Internet until the end of her days, creating negative repercussions for her professional and personal life. It therefore hardly seems the case that if the criminal law did not intervene here (as I suggested it indeed should not have), she would get away scot-free. I would have liked to see more discussion of these themes in Binder and Chiesa's otherwise excellent work.

Tomi Lahren offered her "Final Thoughts" on Fox Nation in regard to the bipartisan border security compromise expected to hit President Trump's desk later this week.

But the new ordinance violates the First Amendment, because it tends to deter (and deliberately so) association with an advocacy group.

The ordinance, enacted yesterday, states:

Each [contract] Awarding Authority shall require that a Person fully disclose prior to entering into a Contract, all of its and its Subsidiaries' contracts with or Sponsorships of the NRA.

The disclosure required under this section shall continue throughout the term of the Contract, thereby obligating a Person to update its disclosure each time the Person or its Subsidiary contracts with or enters into a Sponsorship with the NRA.

And it makes clear that it is motivated by the NRA's political advocacy, as you can see from the recitals at the start of the ordinance (e.g., "the NRA leadership, with the financial support of its dues paying members, continues to lobby against gun safety regulations").

But the Supreme Court has made clear that the First Amendment generally bans (see O'Hare Truck Service, Inc. v. City of Northlake (1997)) the government from "retaliat[ing] against a contractor, or a regular provider of services, for the exercise of rights of political association"—precisely what the ordinance implicitly threatens.

And the Court has also made clear that compulsory disclosures of political association is also presumptively unconstitutional, precisely because they deter such association, see Shelton v. Tucker (1960), a case requiring such disclosures of schoolteachers:

Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy. Public exposure, bringing with it the possibility of public pressures upon school boards to discharge teachers who belong to unpopular or minority organizations, would simply operate to widen and aggravate the impairment of constitutional liberty.

That case involved government employees, but the logic of O'Hare, which applied government employee First Amendment precedents to government contractors, makes clear that it applies to government contractors, too.

So the ordinance violates the First Amendment just because of its disclosure requirement alone. And it also invites First Amendment discrimination lawsuits by individual contractors who are denied contracts after they disclose that they deal with the NRA, just as an employer's asking applicants to disclose their religion would invite religious discrimination lawsuits by applicants who aren't hired (and even in the absence of specific regulations barring such question).

Naturally, the same would be true if a city asked companies whether they do business with or sponsor the NAACP, the ACLU, or any other group because of the group's political advocacy. But note that this principle applies only when the disfavored groups are selected because of what they say or what laws they support; the analysis would be different if an ordinance focuses on nonspeech actions. Asking companies where they have any contracts for building a border wall, for instance, would not violate the First Amendment, because such building isn't protected by the First Amendment. (Some such queries might in some situations violate other rules, such as those related to federal preemption, but that's a separate matter.)

Radical feminists and conservative intellectuals make odd bedfellows, and you wouldn't expect to find them in bed at The Heritage Foundation. But these are odd times. They're united in support of the untrendy idea that biology, not "cultural identity," defines sex.

As President Donald J. Trump climbs to the highest approval rating he has reached in his presidency, we keep hearing about how much trouble he is in. He cannot possibly be re-elected, the critics tell us, while his approval rating rises above 50 percent and his disapproval rating detumesces.

Congressman Andy Biggs said on "Reality Check with David Webb" on Fox Nation that the bipartisan border security compromise is "just a lousy spending bill" with negligible funding for a wall on the Mexican border.

SPY PILOT: FRANCIS GARY POWERS, THE U-2 INCIDENT AND A CONTROVERSIAL COLD WAR LEGACY

By Francis Gary Powers Jr. and Keith Dunnavant

Foreword by Sergei Khrushchev

Prometheus Books, $25, 336 pages

In the latest installment of "Hannity ON-AIR" on Fox Nation, Sean Hannity said that if President Trump declares a national emergency on the southern border, and is challenged in the courts, he will win the case if the Supreme Court "does their job."

Renowned actor Gary Sinise joined Neil Cavuto on "Your World" Tuesday to discuss the release of his book, "Grateful American - A Journey From Self to Service."

Sen. Steve Daines just returned from a visit to the U.S.-Mexico border, and he's challenging his fellow lawmakers to take similar trips to get a first-hand look at the crisis.

House Minority Whip Steve Scalise said Tuesday that congressional Democrats' condemnations of Rep. Ilhan Omar (D-Minn.) will continue to ring hollow unless party leadership removes her from the powerful Foreign Relations Committee.

Members of Kentucky's all-state choir wowed guests at a hotel in Louisville last week with a beautiful rendition of the Star-Spangled Banner.

It's not about AIPAC. She suggested that the only reason a Republican would call her out for past anti-Semitic comments was that he was paid off by Jewish money.

As readers are likely awar, Rep. __ Omar of Minnesota has been embroiled in a controversy about alleged anti-Semitic tweets she posted. The controversy has devolved into a debate over whethr, to what extent, and under what circumstances discussing the influence of AIPAC and other pro-Israel groups over American Middle East policy relies on anti-Semitic conspiracy theories and tropes.

Lost in the shuffle is that the context of Omar's tweets makes the underlying anti-Semitism much clearer than the way the debate, as described above, has been framed.

Here's what happened: The Israeli newspaper Ha'aretz posted an article in English describing how House Minority leader McCarthy promised 'Action' against and fellow freshman congresswomeen Rashida Tlaib. As the article noted, both women are strongly anti-Israel, and both had been accused of engaging in anti-Semitic rhetoric. Indeed, Omar had already apologized for one of her comments, suggesting that Israel "has hypnotized the world," stating that she didn't realize that that this langaguge seemed to play on classic anti-Semitic tropes and was thus offensive to Jews. Given that McCarthy analogized Omar and Tlaib to Rep. Steve King, it seems fair to surmise that just as House Republicans demoted King for racist comments, McCarthy sought to penalize Omar and Tlaib for anti-Semitic rhetoric.

In stepped Glenn Greenwald, who retweeted the Ha'aretz piece, and commented: "GOP Leader Kevin McCarthy threatens punishment for @IlhanMN and @RashidaTlaib over their criticisms of Israel. It's stunning how much time US political leaders spend defending a foreign nation even if it means attacking free speech rights of Americans."

Greenwald, as his wont, drew no distinction between "criticizing Israel in an anti-Semitic manner" and "criticisms of Israel." He also conflating criticizing anti-Semitic comments about Israel with "defending a foreign nation," and made the bizarre suggestion that McCarthy threatening to penalize members of Congress for racist/anti-Semitic statements somehow impinges on their free speech rights--as if King had a first amendment right not to be demoted after praising white supremacy.

Ilhan, in turn, retweeted Greenwald with the comment, "It's all about the Benjamins baby." After receiving lots of pushback, she "clarified" that she was referring to AIPAC.

The context of the controversy, in other words, was not a debate about a specific Israeli policy, nor about the general influence of AIPAC, but about a leading Republican calling out two leftist Democrats for comments that were widely perceived to be anti-Semitic, and for which one of the Democrats had already apologized.

So the anti-Semitic implications of Omar's initial tweet are rather clear: 'McCarthy isn't criticizing me because it's an obvious political move for a Republican to criticize anti-Semitism among Democrats, but because he's been bought off by Jewish money. And, moreover, that calling out anti-Semitism in this paritcular context constitutes loyalty to a foreign country.'

She then tried to save herself by suggesting that she wasn't referring to Jewish money in general, but specifically to AIPAC, the leading pro-Israel lobby group. And in fact she partially succeeding in redirecting the debate to one over AIPAC's influence.

Let's be generous, and assume she meant AIPAC to begin with. Two freshman Democrats who have attracted a great deal of attention are widely perceived to have engaged in anti-Semitic rhetoric while criticizing Israel. The leader of the House GOP, just off demoting a member of his caucus for racist comments, threatens similar action against the two Democrats. Again, this seems like a rather obvious political move, that neither needs any lobbying group for inspiration, nor is in fact about Israeli policy, as such. Suggesting in the absence of "Israel lobby" money, the House Repbublican leader wouldn't call out anti-Semitism by House Democrats suggests that you believe that the lobby, i.e., Jews, are pulling the strings in a classic Jewish-conspiracy kind of way, such that even the most mundane and obvious of political maneuvers are really just tribute to a Jewish cabal.

2020 presidential candidate Sen. Amy Klobuchar will join "Special Report" Bret Baier anchor live in-studio on Tuesday at 6:00pm ET.

A career in cybersecurity

This is admittedly self-indulgent, but I was recently interviewed by Cyberinsecurity News about my involvement in technology and national security policy over the years, and the result might be of interest to those who weren't there for the fights that still shape the policy environment. A sample:

Now, you cannot overestimate how significant the decryption victories of World War II were in shaping NSA's culture. They were, one way or another, part of breaking Japanese codes, and Nazi codes, and everyone agreed that those decryption achievements shortened the war and maybe made it possible to win the war. Given the stakes, no one wanted to be caught in the situation again where we did not have an overwhelming advantage with respect to dealing with foreign nations' codes. At the same time, the Soviets, who had seen that experience, had developed formidable capabilities of their own. We only occasionally got little glimpses of what was going on inside Russian communications, because their encryption was so good and so disciplined. So everybody was aware that what we had achieved in World War II was not ours by birthright. It was going to have to be something we scrapped and clawed at if we wanted to get that advantage again. So NSA was reluctant to surrender any advantage, including export controls on encryption.

For Microsoft and the rest of Silicon Valley, they were already deep into the cycle of destroying other people's businesses by turning them into software. Microsoft had done that successfully and become a massive new company at a time when new companies were rare. Basically by eating other people's businesses and saying, "Oh, sorry about that!" and moving on. I think they started out with the assumption that NSA's encryption and decryption advantage was just one more business model that was not going to survive Microsoft's software advantages. They were more confident maybe than they should have been, but they had plenty of experience and a lot of achievement behind them. You had two very proud, very self-confident organizations dueling with each other over matters that each of them thought was central to their future.

More here: http://www.cyberinsecuritynews.com/stewart-baker-1

Conservative commentator and editor-in-chief of The Daily Wire Ben Shapiro slammed Rep. Ilhan Omar (D-Minn.) for tweets that many have deemed anti-Semitic.

Singer Ricky Rebel defended the pro-Trump outfit he wore to Sunday night's Grammy Awards on "Fox & Friends," saying that the president inspired him to be a "true alpha."

The national Democratic Party is drifting into a dangerous zone of politics in America.

In her First Thoughts on Fox Nation, Tomi Lahren warned about the growing socialist movement in the Democratic Party.

Sen. Cory Booker of New Jersey said it's high time for Americans to give each other "grace" and engage in "honest conversations" about certain hotly charged issues, like racism and blackface and the whole breakdown of political leadership in Virginia and such.

There's a barroom in the Bronx missing a serving wench. She went off to Congress to enact into law some of the more imaginative ideas she heard serving suds to know-it-alls at her bar.

Clarifications and regrets.

Neomi Rao sent a letter today to the U.S. Senate Committee on the Judiciary detailing her views on the topic of sexual assault and rape. It reads in part:

"Sexual assault in all its forms, including date rape, is abhorrent. Responsibility for the rape is with the rapist. I believed that as a college student and continue to believe that today. No woman or man should be subject to sexual violence, regardless of the clothes they wear or how much alcohol they consumed. Non-consensual sexual activity is never appropriate or excusable. Victims should not be blamed for the terrible things that have happened to them. As a society we should create an environment where survivors feel empowered and comfortable coming forward. I am sorry for anything in my college writings to the contrary."

In my original post on this topic, I had stated that it would have been helpful had she corrected the record before it became politically salient. She writes in the letter:

"I have not written or spoken about issues of rape or sexual assault since college. If I were to address these issues now, I would have more empathy and perspective. Since I started law school, my research and writing has focused on the law, particularly constitutional law, separation of powers, and administrative law. My non-academic writing usually examines legal issues related to my scholarship or government service, not topics outside my expertise."

Thank you to the law prof who sent me the link!

The discussion stemmed from a student's reading a sentence in class from James Baldwin’s The Fire Next Time.

Randy Kennedy, a noted scholar on race and the law at Harvard Law School, and the author of Nigger: The Strange Career of a Troublesome Word, published this excellent article Friday in the Chronicle of Higher Education, and graciously agreed to let me reprint it:

A series of dismaying events has transpired at Augsburg University, in Minneapolis. According to several undisputed news reports, it began in October, when a student read a sentence in class from James Baldwin's The Fire Next Time: "You can only be destroyed by believing that you really are what the white world calls a nigger."

Airing the N-word caused a commotion. The professor leading the class, Philip Adamo, asked the students if they felt it was appropriate to voice the word Baldwin had written. In doing so, Adamo repeated the word. Later, he sent to the class two essays on the politics of the N-word. The next day, some students asked Adamo to leave the classroom while they discussed the lingering controversy. They were joined by other students who were not enrolled in the course. He complied with their request. Later, after a flurry of emails in which Adamo continued to try to explain himself, the university removed him from the course. He has since been suspended, pending the outcome of a formal review.

This dispiriting farce discredits those who have played a role in it and undermines Augsburg's claim to be a serious institution of higher learning.

First, there are the students who complained that they had been shocked, hurt, and made to feel unsafe by the professor's "use" of the N-word. How can anyone sensibly think that Adamo was "using" the N-word, in the sense of deploying it destructively? As Adamo stated in his own defense, there is "a distinction between use and mention. To use the word to inflict ... harm is unacceptable. To mention the word in a discussion of how the word is used is necessary for honest discourse."

This is not a case of a professor calling someone "nigger." This is a case of a professor exploring the thinking and expression of a writer who voiced the word to challenge racism. This is not a case of a professor negligently throwing about a term that's long been deployed to terrorize, shame, and denigrate African-Americans. This is a case of a professor who, attentive to the sensibilities of his students, sought to encourage reflection about their anxieties and beliefs.

None of those distinctions require deep insight. They should be obvious. Students unable to appreciate them are students unprepared for university life.

Second, although Adamo initially did nothing wrong, he compromised himself when he allowed himself to be cowed by the students, who prevailed upon him to abandon his classroom. He should never have left it. He should have invoked his authority as a professor. There is a reason he was leading the class: He knows more about the subject at hand than his students do. That is a justifiable basis on which to pull rank, to insist on a display of at least minimal respect. By caving, Adamo elicited neither sympathy nor understanding, but contempt.

Adamo further compromised himself in a subsequent letter that reads like parody. The classroom, he wrote, "is a place where any and every topic can be explored, even those topics considered to be taboo. That is how I understand academic freedom, which is a precious thing to me and other professors. It is the currency that allows us to speak truth to power." So far, so good.

But in the next breath, Adamo betrayed his expressed commitment to intellectual freedom and adventurousness by suggesting that it stems only from his "privileged position": "I am now struggling to understand how it may be better not to explore some taboo topics, and to weigh the consequences of absolute academic freedom versus outcomes that lead to hurt, racial trauma, and loss of trust."

Such talk is misplaced in the context of a perfectly responsible classroom discussion of James Baldwin's rhetoric. Adamo's genuflection to that prattle stupidly empowers those who have shabbily mistreated him.

Some professors at Augsburg have repudiated an academic-freedom defense of Adamo. Their open letter contains two sentences, in particular, that illustrate vividly the embrace of anti-intellectualism and illiberal conformity that is sadly ascendant in all too many precincts of academia. "We believe," they wrote, "that further conversations about academic freedom can only take place after we acknowledge that harm has been done to these students."

In other words, discussion of a central pillar of the academic enterprise must be put on hold until everyone agrees to the highly contestable claim that "harm" has been done.

Their next point is all too predictable. They want the university to "require meaningful and challenging diversity, equity, and justice training for all faculty." One can confidently predict that the "training" they have in mind will be devoid of pluralism and debate, despite their putative commitment to "diversity" and "inclusion."

By all appearances, those who have most betrayed academic ideals at Augsburg are the president, Paul C. Pribbenow, and the provost, Karen Kaivola. They are the ones who punished Adamo. They are the ones who allowed a perfectly acceptable pedagogical decision to be turned into an academic crime. They are the ones who have, in their published statements thus far, neglected to say anything critical about the students who encroached upon a professor's classroom. They are the leaders who, in a moment of crisis, have failed miserably to educate their campus about the aims and priorities, freedoms and limitations that should be part and parcel of life at a serious university.

TEAM OF VIPERS: MY 500 EXTRAORDINARY DAYS IN THE TRUMP WHITE HOUSE

By Cliff Sims

St. Martin's Press, $29.99, 360 pages

The panel on "The Five" reacted to the leak of some of President Trump's presidential schedules, which showed he spent several hours of the days in non-specific "executive time."

The Fourth Circuit rejects a challenge to a history class being shown a slide stating “Most [Muslims'] faith is stronger than the average [Christian's]," and being required to fill in the blanks in "There is no god but __ and Muhammad is the __ of Allah," as part of a worksheet on the "Five Pillars" of Islam.

From today's decision in Wood v. Arnold, which strikes me as quite correct:

As an eleventh-grade student, Wood was required to take a world history course, which was part of the school's social studies curriculum.... The smallest unit of the world history course, encompassing five days, was entitled "The Muslim World." The unit was "designed to explore, among other things, formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires."

As part of the "Muslim World" unit, Wood's teacher presented the students with a PowerPoint slide entitled "Islam Today," which contrasted "peaceful Islam" with "radical fundamental Islam." The slide contained the statement that "Most Muslim's [sic] faith is stronger than the average Christian" (the comparative faith statement) (underlining in original)....

Wood also was required to complete a worksheet summarizing the lesson on Islam. The worksheet addressed topics such as the growth and expansion of Islam, the "beliefs and practices" of Islam, and the links between Islam, Judaism, and Christianity. Part of the worksheet required the students to "fill in the blanks" to complete certain information comprising the "Five Pillars" of Islam. Included in that assignment was the statement: "There is no god but Allah and Muhammad is the messenger of Allah[,]" a portion of a declaration known as the shahada (the shahada assignment). [Footnote: The underlined words reflect the parts of the statement that the students were required to complete.] For ease of reference, we collectively refer to the comparative faith statement and the shahada assignment as the "challenged materials."

The court concluded that the assignment didn't violate the Establishment Clause, because it had the permissible secular purpose of teaching about world religions, didn't have the effect of promoting or endorsing Islam, and didn't unduly entangle the government with religion (those are the three factors set forth by the Supreme Court's Lemon v. Kurtzman (1971) precedent):

The Supreme Court has recognized the secular value of studying religion on a comparative basis. In this case, the comparative faith statement was part of an academic unit in which students studied Middle Eastern empires and the role of Islam. The unit did not focus exclusively on Islam's core principles, but explored "among other things, formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires." Nothing in the record indicates that the comparative faith statement was made with a subjective purpose of advancing Islam over Christianity, or for any other predominately religious purpose. Nor does the record show that the proffered secular purpose of teaching about Muslim empires in the context of world history was pretextual....

Similarly, the shahada assignment was a tool designed to assess the students' understanding of the lesson on Islam. In total, the worksheet included 17 questions with 27 blank entries to be completed by the students on the history of Islam, "beliefs and practices" of Muslims, and links between Islam, Judaism, and Christianity. The students were not required to memorize the shahada, to recite it, or even to write the complete statement of faith. Instead, the worksheet included a variety of factual information related to Islam and merely asked the students to demonstrate their understanding of the material by completing the partial sentences. This is precisely the sort of academic exercise that the Supreme Court has indicated would not run afoul of the Establishment Clause. See Schempp, 374 U.S. at 225 ("Nothing we have said here indicates that such study ... of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment." (emphasis added))....

[Moreover, t]he slide itself did not advocate any belief system but instead focused on the development of Islamic fundamentalism as a political force. And the shahada assignment appeared on the student worksheet under the heading "Beliefs and Practices: The Five Pillars." Thus, the assignment asked the students to identify the tenets of Islam, but did not suggest that a student should adopt those beliefs as her own.... As a matter of common sense, an objective observer would not perceive a singular statement such as the comparative faith statement, or a lone question about a religion's core principle on a fill-in-the-blank assignment, as an endorsement or disapproval of religion....

The court also held that the assignment didn't unconstitutionally compel speech:

We next consider Wood's Free Speech Clause challenge. Wood argues that the defendants violated her free speech rights by requiring her to complete in writing two missing words of a portion of the shahada, namely, that "[t]here is no god but Allah and Muhammad is the messenger of Allah." In her view, "the curriculum implemented and supervised by [d]efendants compelled [Wood] to confess by written word and deed her faith in Allah." We disagree with Wood's position....

Although a student's right against compelled speech in a public school may be asserted under various circumstances, that right has limited application in a classroom setting in which a student is asked to study and discuss materials with which she disagrees.

In the present case, the record is clear that the shahada assignment did not require Wood to profess or accept the tenets of Islam. The students were not asked to recite the shahada, nor were they required to engage in any devotional practice related to Islam. Cf. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 631-32 (1943) (distinguishing between compelling students to declare a belief through mandatory recital of the pledge of allegiance, and "merely ... acquaint[ing students] with the flag salute so that they may be informed as to what it is or even what it means"). Instead, the shahada assignment required Wood to write only two words of the shahada as an academic exercise to demonstrate her understanding of the world history curriculum. On these facts, we conclude that Wood's First Amendment right against compelled speech was not violated.

Whether most Muslims' faith is stronger than the average Christian's is a complicated question; so is, more generally, how one should teach about religion—a tremendously important aspect of human history, psychology, and sociology—in a way that's intellectually honest and that lets students discuss the subject honestly and thoughtfully. (That, of course, is also true of many other controversial topics.) But the Establishment Clause and the Free Speech Clause don't prevent all or even most such teaching

Sean Hannity said Monday on "Hannity On Air" that the Democrats' Green New Deal legislation is "outrageously expensive and cost prohibitive."

The order, entered under the Illinois Stalking No Contact Order Act, barred Chester Wilk from "communicating, publishing or communicating in any form any writing naming or regarding [Pastor Eric Flood], his family or any employee, staff or member of the congregation of South Park Church in Park Ridge."

In Flood v. Wilk, decided Thursday by the Appellate Court of Illinois, a trial court had found that respondent Wilk had engaged in stalking of petitioner Flood—who had been Wilk's pastor at South Park Church—and issued an injunction under the Illinois Stalking No-Contact Order Act. That injunction, among other things, barred respondent from

communicating, publishing or communicating in any form any writing naming or regarding [petitioner], his family or any employee, staff or member of the congregation of South Park Church in Park Ridge.

The Appellate Court held—in my view, correctly—that this provision violates the First Amendment:

"[C]ontent-based laws, which target speech based on its communicative content, are presumed to be invalid." People v. Relerford, 2017 IL 121094, ¶ 32. When they silence protected speech, as this one does, they must survive the rigors of strict scrutiny. Few content-based restrictions ever do. "Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message conveyed."

Since the trial court's order in the instant case targeted respondent's speech based on its subject matter—the church or its members—it would be considered a content-based restriction and presumptively prohibited. An injunction that prohibits respondent from writing anything at all about his pastor or any other member of his church congregation—whether flattering or unflattering, fact or opinion, innocuous or significant, and regardless of the medium of communication—certainly would not be that rare case that survives strict scrutiny. It is all but impossible to imagine a factual record that would justify this blanket restriction on respondent's speech. Paragraph (b)(5) of the order is substantially and obviously overbroad, and it violates respondent's first-amendment right to free speech.

Our supreme court has noted that "the United States Supreme Court has recognized that certain 'historic and traditional' categories of expression do not fall within the protections of the first amendment, and content-based restrictions with regard to those recognized categories of speech gave been upheld." ... For instance, defamatory statements concerning petitioner would not be protected.

Similarly, threats made by respondent against the church or its congregants clearly would not be protected speech. "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." ...

In the case at bar, respondent's writings directed at petitioner and his church demonstrated that he viewed himself as the recipient of "Divine Intervention" and had a "responsibility to use [his] accurate and supernatural information" to prove that "there is a God in heaven and a devil in hell." Respondent's writings also established that he viewed petitioner as "influenced by the devil" and as a "tool of the devil" and further established that he believed there was "spiritual warfare between good and evil" (emphases omitted) and that he was "compelled to fulfill [his] destiny which was predicted since [he] was a child."

Respondent also included handwritten notes on several of his writings, telling petitioner on one: "By now you should realize that I am not walking away from this matter. I hope you realize your mistake and do the right thing" and stating on another: "Do you realize that what you did was 9 years ago and I still have not given up on what you did?" Petitioner testified that these communications had occurred for 10 years and were increasing in frequency and that, when he received these communications, he feared for his safety and for the safety of his congregants. While the language used by respondent may not have been an explicit threat to harm petitioner, the context of respondent's communications shows the passage of a long period of time since the perceived slight; an escalation in the communications; references to "spiritual warfare between good and evil," where respondent was identifying himself as "good" and petitioner as "evil"; respondent's belief that he was "compelled to fulfill" his prophesied "destiny"; and the fact that petitioner—the listener—had a reaction of fear for his safety and for the safety of his congregants.

"[S]peech or writing used as an integral part of conduct in violation of a valid criminal statute" is [also] not constitutionally protected. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). " 'Where speech is an integral part of unlawful conduct, it has no constitutional protection.' " [But t]o fit within this narrow exception, this prohibited speech must be in furtherance of a separate crime—a crime other than the speech itself and one that the constitution allows the legislature to punish. An example would be a ban on advertising child pornography. The advertising itself is speech, but it is an "integral part" of the act of child pornography, a separate crime that may be validly prohibited, and because of that proximate link between the advertising speech and the separate crime, that speech may be prohibited, as well.

Here, the prohibited speech must be an integral part of the unlawful stalking in order to be unprotected. However, in this case, the trial court did not expressly find that respondent's comments rose to the level of posing a "true threat" to the physical safety of petitioner and his congregants. But without this link between the unprotected speech and a separate crime, the exception would swallow the first amendment whole: it would give the legislature free rein to criminalize protected speech, then permit the courts to find that speech unprotected simply because the legislature criminalized it. Our supreme court rejected exactly this misuse of the exception in Relerford, when the court found that the exception does not permit the legislature (or a court) to prohibit speech simply because it is distressing....

[There is] much conduct that is prohibited under the trial court's order that would be considered constitutionally protected. For instance, a letter to the editor that was published in the local newspaper would be prohibited under the order, yet it would be constitutionally protected. The trial court may not enjoin respondent from criticizing petitioner or his church, even though petitioner finds that criticism distressing. That criticism, circulated in respondent's leaflets, books, and other written media, is the principal target of the speech injunction in paragraph (b)(5) of the order. Respondent's speech, however, is protected by the first amendment, and any written criticism by respondent would be constitutionally protected.

Respondent's speech does not lose its protected status simply because it is distressing to petitioner. As Relerford emphasized, distressing speech is ubiquitous and unavoidable, both in everyday social interactions and when we are debating the topics of public concern at the core of the first amendment's protections. A business owner, for example, may well be distressed by speech criticizing his environmental practices, fearing that the speech could lead to a financially devastating boycott. However, that does not permit the legislature or a court to silence his critics.

Respondent has every right to criticize petitioner's ministry and his church more broadly. He has every right to argue that they have betrayed their commitments to marriage and family that the Christian faith requires of them. Respondent has every right to voice his opinion that his marriage would have survived if those commitments had been in place to support the marriage.

While the Act itself contains an exemption providing that "[s]talking does not include an exercise of the right to free speech or assembly that is otherwise lawful," the injunctive relief drafted by the trial court does not make clear that it applies only to otherwise unprotected speech, and by its broad terms, it would therefore prohibit constitutionally protected speech. Such content-based regulation "will be upheld only if necessary to serve a compelling governmental interest and narrowly drawn to achieve that end."

In the case at bar, as noted, the injunctive relief awarded by the trial court was broadly drafted to cover situations that would encompass constitutionally protected speech without any obvious rationale or factual basis for its scope. We therefore vacate that portion of the trial court's order in paragraph (b)(5) that states: "Respondent is prohibited from communicating, publishing or communicating in any form any writing naming or regarding [petitioner], his family, or any employee, staff or member of the congregation of South Park Church in Park Ridge, IL."

Respondent's proselytizing has no doubt distressed petitioner. Petitioner alleged in his petition that it has "raise[d] questions" among some of the letters' recipients about his own "credibility" and that of the church and that responding to their concerns has been, in his view, "an unwanted distraction and excessive waste of time." However, we cannot silence respondent when he is voicing protected criticism, no matter how much time, energy, or distress it costs petitioner. Even less can we silence respondent on the ground that his criticisms of petitioner may have gained some traction—as if we can shield petitioner from the need to answer allegations that, in the minds of some individuals, really do demand answers. That is viewpoint discrimination. See McCullen v. Coakley, 134 S. Ct. 2518, 2532-33 (2014) (speech prohibition that "favors one side in [a] *** debate" is viewpoint discrimination, "an egregious form of content discrimination" (Internal quotation marks omitted.)).

If you're interested in more details about respondent's past speech, which led to the order, here's an excerpt, though you might want to read the whole opinion:

On August 17, 2017, petitioner filed a petition alleging that there had been a significant increase in unwanted contact in the last two months by respondent towards petitioner that had caused increased anxiety to the staff of the church, the congregation, and the neighborhood. The petition set forth details of three separate incidents occurring between June 27 and August 6, 2017, all of which occurred at South Park Church. The first incident occurred on June 27, 2017, and consisted of respondent visiting the office of the church, where the staff "had previously been advised not to allow [him] entrance to the building." The receptionist notified a staff member, who went outside and asked respondent to leave. After giving the staff member a copy of his book, respondent left.

The second incident occurred on Sunday, July 2, 2017, and consisted of respondent distributing disparaging letters on the windshields of automobiles in the parking lot of South Park Church during one of its morning services. The next morning, petitioner reported the incident to the Park Ridge police.

The third incident occurred on Sunday, August 6, 2017, and consisted of respondent again distributing disparaging letters on the windshields of automobiles in the parking lot of South Park Church during its second worship service. A church member observed respondent distributing these letters and informed a staff member, who asked respondent to leave. In response, respondent "declared he had a right to be there until the staff person said she would call police."

In addition to the three specified incidents, the petition contained a "History" section detailing respondent's alleged conduct. In this section, petitioner alleged that "[respondent] has been attacking my reputation and the reputation of South Park Church (among many other people and organizations) for ten years. A letter was sent to [respondent] from the leadership of South Park Church in February, 2007, stating the following: 'Please do not call, visit, or write additional letters to us regarding the issues mentioned above.' Yet erratic contact has persisted for a decade." Petitioner alleged that this activity included (1) "[s]ending letters repeatedly to addresses of current and former members of South Park Church found in an old church directory," (2) "[s]ending unwanted emails to South Park Church staff with content parallel to his letters," (3) "[g]oing door to door to neighbors of South Park Church to deliver letters," (4) "[r]epeatedly asking for appointments with [petitioner] even though he [was] repeatedly told no and asked to cease all contact," and (5) "[d]istributing flyers in the parking lots of Walgreens at Devon/Talcott and Mariano's [at] Cumberland/Higgins."

As an example of one of the fliers in evidence that respondent distributed, one bears the heading "South Park Church and [petitioner] is a corrupt church which needs to be thoroughly exposed. Here's why." The flier claims that petitioner "is a disgrace to Christianity" because he refused to suggest marital counseling when respondent's wife left him after 40 years of marriage.

Respondent repeatedly referred to petitioner and his church as "corrupt" and used petitioner's conduct as an example of "how the devil gets into churches." For instance, in an August 6, 2017, letter, respondent stated that, due to petitioner's actions, respondent "was compelled to write and publish the book entitled, 'The devil's intervention into healthcare, politics, churches, courts and families.' " (Emphasis omitted.) Respondent also stated that petitioner "cannot be that stupid but he sure can be that influenced by the devil according to the Bible."

Respondent also explained how, as a child, "[he] had [his] entire future completely outlined in fine detail with over 20 predictions well over 60 years in advance with 100% accuracy and never once wrong." Respondent believed that the family friend who provided these predictions was his "guardian angel sent by God" and that "God gave [him] a glimpse into [his] future and a responsibility to use [his] accurate and supernatural information so [he] could realize that there is a God in heaven and a devil in hell."

These same sentiments appear in a July 2, 2017, letter, in which respondent also notes, with respect to the predictions: "I could not have gotten such fine detailed predictions without Divine Intervention, and I can back up every word I say here with a polygraph test. *** I received a gift which I can use to destroy any atheist in a debate with scientific proof that should satisfy the most hard-nosed scientist. I will challenge any atheist and I will clean their clock big time. That is if any is willing to challenge me. What I will be using is called the Science of Probability. Unfortunately some of our pastors have blinders on and can't see it. Maybe this message will open their eyes as I am compelled to fulfill my destiny which was predicted since I was a child. And believe me it will happen!" (Emphasis in original.)

On December 13, 2009, respondent sent a letter to "the entire staff at South Park Community Church," which included as enclosures correspondence between respondent and a California court, where respondent was apparently engaged in court proceedings concerning his estranged wife. One enclosure was entitled "Cover Letter" and included bullet points refuting his wife Ardith's claims: "1) Regarding Ardith's concern of my going to California"; "2) Regarding Ardith being fearful of me as having a mental illness"; "3) Regarding Ardith claiming I am talking about fulfilling prophesies"; "4) Ardith alleges that I said she is 'possessed' by the devil"; "5) Ardith alleged that I would 'fix' her"; "6) Ardith and her daughters keep insisting I am egotistical and narcissistic"; "7) Ardith alleges that I am Delusional"; "8) Ardith noted that South Park Church 'banned' me from going there"; "9) Regarding being 'unloved' by [respondent]"; "10) Regarding Ardith's accusations about [respondent] swearing"; and "11) [Respondent] claiming the devil is influencing the family." This communication to the California court also noted that one of respondent's daughters had obtained a restraining order against respondent, claiming that she "could not sleep nights and felt intimidated by her dad." The "family history" portion of the communication ended by stating: "The real message to be gotten here is that this is spiritual warfare between GOOD and EVIL. The facts speak for themselves in the eyes of God and reasonable minded people." (Emphasis in original.)

The petition also contained a section entitled "Effects of the Incidents on Petitioner," which provided that "[s]taff members and church members have expressed increased concern for the reputation of the church and increased anxiety about keeping our congregation safe. My family, our staff, and our church leaders are concerned for their own well-being as well as that of our congregation. The obsessive nature of the criticism makes us fear a future elevated response by [respondent] that could cause disruption of ministry or worse." Petitioner further alleged that "[t]here are many untrue statements made in the letters that discredit me. Though many people disregard the letters due to their bizarre and ranting nature, it also raises questions among others that undermine my credibility." Finally, petitioner alleged that "[e]very letter and visit by [respondent] is an unwanted distraction and excessive waste of time as we answer questions and respond to concerns."

Todd Starnes said Monday on "Starnes Country" on Fox Nation that he will not accept Rep. Ilhan Omar's apology after she made anti-Semitic remarks and accused a pro-Israel organization of effectively paying off Republicans for support.

The time for and framing of PSAs.

Following up on my recent post about the confirmation process of Neomi Rao, I wanted to respond more generally to the point that Ted Cruz and various conservative commentators raised about what could possibly be wrong with telling women not to drink (or not to drink too much) to remain safe.

One problem is that there are lots of things that would make us safer, and yet we don't feel the need to inform people of each one. In the context of date rape, one way to stay safer is not to go on dates at all. Yet most people would not dispense that recommendation, even though ceasing going on dates would most definitely increase one's safety from date rape more than abstaining from alcohol does.

Inherent in that disparity in recommendations might be an assumption that maintaining the ability to go on dates is somehow important or worthwhile in a way that drinking alcohol is not. Perhaps that is accurate, but it requires more unpacking than mere assertions about statistical risk in the drinking scenario.

The second question is that of forum. Is there a way to tell college students to be careful with alcohol (for all sorts of reasons)? Sure! Hand out gender-neutral pamphlets at orientation that discuss safe quantities, levels of impairment, etc. Put up posters with that info. If that is genuinely the point being made (as Ted Cruz would have us believe, with his story at Neomi's hearing of what he would tell his daughters and how his drunk friend lost three of his limbs), there is a time and place to make it.

But is that always the point being made? I start squirming when I hear about how women need to share the "responsibility" of what happened. This must be broken down into two separate points: an evidentiary and an ethical one. Let us acknowledge for the sake of argument that evidence will be more difficult to establish when alcohol was involved in an alleged date rape (in reality, this remains to be proven). If the evidentiary burden is indeed met, does the fact that a woman drank in any way absolve of responsibility a rapist?

And to that the answer is a resounding no. The reason so many people are uncomfortable with the way that drinking advice wrapped into questions of responsibility has been used is the possible implication that 1) the man is somehow less responsible for rape if the woman was drunk and/or 2) the woman is somehow co-responsible in her rape if she was drunk.

Needless to say, this is where concerns about victim-blaming become significant. Supposed safety advocates seem a lot busier telling women not to drink if they don't want to be date-raped than telling men not to drink if they don't want to be accused of date-rape. And all that is why the protestations of Ted Cruz and others who advocate for good old-fashioned safety advice ring hollow. If all he cares about is absolute safety and not trade-offs, perhaps he can start thinking about the curfew for men.

Stuart Varney reacted to Sen. Elizabeth Warren's presidential campaign kickoff, on his latest "My Take" on Fox Nation.

As more Democrats enter the 2020 presidential race, former Pennsylvania Gov. Ed Rendell is warning that far-left candidates will only provide fodder for President Trump.

Melissa Francis said Monday on "Outnumbered" that the sponsors of the "Green New Deal" -- which include Rep. Alexandria Ocasio-Cortez (D-N.Y.) -- don't realize that the people they want to help will be most hurt by the bil.

Utah Sen. Mike Lee joined Judge Andrew Napolitano Monday on Fox Nation's "Liberty File" to discuss how far senators can go in examining a judicial nominee's religious beliefs.

President Donald Trump is heading to El Paso, Texas, Monday night, where he will hold a rally and be interviewed by Fox News' Laura Ingraham.

The commissioner of Texas' Department of Agriculture touted the effectiveness of a border wall ahead of President Trump's 2020 campaign rally in the city of El Paso.

An important reminder from a recent Iowa Supreme Court decision; some lawyers know this point well, but many don't.

From Behm v. City of Cedar Rapids (Iowa Jan. 25, 2019):

A number of states have adopted different tests for substantive due process and equal protection claims under their state constitutions when fundamental interests are not implicated. For instance, in South Dakota, the rational basis test utilized in substantive due process requires "a real and substantial relation" between a statute and the objects sought to be obtained. Katz v. S.D. Bd. of Med. & Osteopathic Exam'rs, 432 N.W.2d 274, 278 & n.6 (S.D. 1988). The New Jersey Supreme Court has rejected the federal approach in favor of a balancing test. See Planned Parenthood of Cen. N.J. v. Farmer, 762 A.2d 620, 633-38 (N.J. 2000). The Minnesota Supreme Court has been unwilling to hypothesize a rational basis not asserted in support of a statute, has required that statutory distinctions "must be genuine and substantial," and has stated that there must be "a reasonable connection between the actual ... effect of the challenged classification and the statutory goals." State v. Russell, 477 N.W.2d 886, 888-89 (Minn. 1991) (first quoting Wegan v. Village of Lexington, 309 N.W.2d 273, 280 (Minn. 1981)). The Supreme Courts of Alaska and Vermont have adopted a sliding-scale-type approach to equal protection that can lead to a more stringent review when fundamental interests are not involved. See Alaska Pac. Assurance Co. v. Brown,687 P.2d 264, 269 (Alaska 1984); Baker v. State, 744 A.2d 864, 873 (Vt. 1999).

A body of the academic literature has long recognized and often advocated that states may develop their own equal protection and substantive due process doctrine. See, e.g., Randal S. Jeffrey, Equal Protection in State Courts: The New Economic Equality Rights, 17 Law & Ineq. 239, 356-57 (1999); Jeffrey M. Shaman, The Evolution of Equality in State Constitutional Law, 34 Rutgers L.J. 1013, 1121-23 (2003); Robert F. Williams, Equality Guarantees in State Constitutional Law, 63 Tex. L. Rev. 1195, 1222-24 (1985).

[Likewise, i]n Racing Ass'n of Central Iowa v. Fitzgerald (RACI I), we originally held that the legislature's classification in a taxation statute between land-based casinos and riverboats violated equal protection under the Fourteenth Amendment of the United States Constitution. 648 N.W.2d 555, 558, 562 (Iowa 2002). The United States Supreme Court reversed. Fitzgerald v. Racing Ass'n of Cent. Iowa, 539 U.S. 103, 110, 123 S. Ct. 2156, 2161 (2003). On remand, we held that, notwithstanding the unanimous decision of the United States Supreme Court under the Equal Protection Clause of the Fourteenth Amendment, the classification was nonetheless invalid under article I, section 6 of the Iowa Constitution. RACI II, 675 N.W.2d at 3. Clearly, our approach to equal protection in RACI II had more teeth than that employed by the United States Supreme Court.

An important question in equal protection and due process settings is the role of fact-finding in determining the validity of the classification or legislation. RACI II emphasizes that the legitimate purpose of the classification must be "realistically conceivable" and have "a basis in fact." Id. at 7-8 (emphasis omitted) (first quoting Miller, 394 N.W.2d at 779). On the other hand, we have stated that government "is not required or expected to produce evidence to justify its legislative action." Horsfield Materials, Inc. v. City of Dyersville, 834 N.W.2d 444, 458 (Iowa 2013) (quoting Ames Rental Prop. Ass'n v. City of Ames, 736 N.W.2d 255, 259 (Iowa 2007)).

We think RACI II and Horsfield may be easily reconciled. While the state or municipality is not expected or required to produce evidence to justify its action, a party attacking the classification may do so in an effort to show that the claimed legitimate interest is either not "realistically conceivable" or does not have "a basis in fact." RACI II, 675 N.W.2d at 7-8 (emphasis omitted) (first quoting Miller, 394 N.W.2d at 779). In other words, once the state articulates a legitimate governmental interest that appears plausible on the face of the statute, the burden of coming forward with evidence to attack the asserted justification shifts to the challenger.

Rep. Peter King slammed Rep. Ilhan Omar, saying it was "absolutely shameful" for the freshman Democrat from Minnesota to accuse a prominent lobbying group of paying members of Congress to support Israel.

Tom Homan predicted Democrats won't be able to "abolish ICE," as some lawmakers have called for, but they will try to "bankrupt" the agency to render it ineffective.

An 18-year-old in Ohio recently defied the wishes of his parents and took his health into his own hands by getting vaccinated.

A Texas man whose daughter was allegedly killed by an illegal immigrant is challenging Congress to fund border security, enforce immigration law and protect American citizens.

Just as I started to write about the sophomoric antics of many congresswomen during the State of the Union, legendary radio host Blanquita Cullum's Facebook page popped up.

She posted, "Were the women in white effective?"

The responses from women poured in:

"They look like followers and not leaders."

According to recent polls, Americans rank health care as their most important policy issue. President Trump reflected this concern in his State of the Union address, saying his "next major priority" is "to lower the cost of health care and prescription drugs — and to protect patients with pre-existing conditions."

A gigantic float depicting President Trump as a "God Emperor" rolled through the streets during a parade in Italy over the weekend.

Syndicated radio host Dana Loesch said Saturday night on "Justice With Judge Jeanine" that the socialist platform on which Sen. Kamala Harris stands, poses an "existential threat" to Americans' Second Amendment rights.

Anthony Scaramucci took on Fox & Friends hosts Ed Henry, Pete Hegseth and Jedediah Bila Sunday in a "Green New Deal" edition of Fox Nation's "The Quiz Show."

The independent newspaper at Washington University in St. Louis, Missouri, published an op-ed in which the author slammed conservative ideas, saying they "are not equal to liberal and left ideas."

Democratic Rep. Nydia Velázquez responded to a conservative student's tweet about last week's State of the Union address by saying "you're right to be afraid of us."

Fox News contributor Tammy Bruce said Sunday that Sen. Elizabeth Warren showed a "very strange disconnect" by declaring her candidacy for president in a sanctuary city.

A great line from Megan McArdle's recent article on newspapers and their "pivot to dust."

A slightly longer excerpt, though you should read the whole article (from the Washington Post, Jan. 26):

No, the journalism business is wedded to capitalism through and through; capitalism just seems to have tired of the arrangement.

And like anyone else whose spouse is losing interest, the industry has tried — oh, how it has tried! — to win back capitalism's affections, with more makeovers than a Hollywood starlet. As usual, this didn't resolve the underlying problem: The main competition for ad dollars now comes from massive tech companies that don't produce content at all.

Journalism isn't going away, exactly. There are business models that work, largely two: funding by donors or wealthy owners willing to operate at a loss, or subscriptions. But those models can't support all the journalism now being done. The number of donors doesn't magically increase just because more are needed. And subscription models have limits, because most people can only afford a few at a time.

The justices were wrong to reject a religious discrimination claim in a case where a person sentenced to death was not allowed access to a Muslim cleric at the moment of death. But the decision was not the result of anti-Muslim bigotry.

Dunn v. Ray, yesterday's Supreme Court ruling on religious liberty has come in for a great deal of criticism. In a 5-4 decision divided along ideological lines, the conservative justices overturned a lower court's decision to grant a stay in an Alabama death penalty case in which a Muslim defendant scheduled to be executed was denied the right to have an imam present with him at the moment of death, even though the state does allow a Christian minister to be present. Left of center commentators have accused the majority justices of anti-Muslim double standards. The ruling has also gotten pushback from conservatives, such as David French of the National Review, who calls the ruling "a grave injustice."

A grave injustice is exactly what it is. The decision should have gone the other way. But, as we shall see, anti-Muslim bigotry lprobably was not cause of the Court's error.

Justice Elena Kagan's dissent on behalf of herself and the other three liberal justices explains why Domineque Ray deserved to prevail in the case:

Holman Correctional Facility, the Alabama prison where Domineque Ray will be executed tonight, regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim. And the prison refused his request to have an imam attend him in the last moments of his life....

The clearest command of the Establishment Clause," this Court has held, "is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U. S. 228, 244 (1982). But the State's policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause's core principle of denominational neutrality....

To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn't Ray's imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn't it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State's ability to perform the execution? The State doesn't say. The only evidence the State has offered is a conclusory affidavit stating that its policy "is the least restrictive means of furthering" its interest in safety and security. That is not enough to support a denominational preference.

Kagan is absolutely right about all of this. Indeed, the majority does not even try to take issue with it. They instead ruled against Ray because he raised his religious discrimination claim too late. Here is the sum total of the majority's reasoning:

On November 6, 2018, the State scheduled Domineque Ray's execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State's application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) ("A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.").

That's it. There is nothing more. Kagan has a compelling response:

I... see no reason to reject the Eleventh Circuit's finding that Ray brought his claim in a timely manner.The warden denied Ray's request to have his imam by his side on January 23, 2019. And Ray filed his complaint five days later, on January 28. The State contends that Ray should have known to bring his claim earlier, when his execution date was set on November 6. But the relevant statute would not have placed Ray on notice that the prison would deny his request. To the contrary, that statute provides that both the chaplain of the prison and the inmate's spiritual adviser of choice "may be present at an execution." Ala. Code §15–18–83(a) (2018). It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear). So there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.

For a more detailed description of the facts relevant to the timeline, see the Eleventh Circuit opinion, which I think is very good on this point. If the majority justices believe there is some flaw in Kagan and the Eleventh Circuit's reasoning on the timing issue, they should have at least explained what that flaw is. As Justice Kagan notes, the Supreme Court usually defers to lower court decisions on such case-specific procedural matters.

Nonetheless, the fact that the case was decided on technical procedural grounds probably ensures that it won't set a precedent that undermines religious freedom. The majority did not address the substantive issue at all, and therefore created no precedent on that subject. The ruling probably won't establish much of a precedent even on the issue of timing, because the majority made so little effort to explain their reasoning, and thereby did not establish any clear rule that can be applied in future cases.

It is also unlikely that the majority justices were motivated by anti-Muslim bigotry. As Luke Goodrich of the Becket Fund for Religious Liberty points out in an insightful Twitter thread, the same conservative justices had ruled in favor of religious liberty and religious discrimination claims brought by Muslims in cases such as Holt v. Hobbs and EEOC v. Abercrombie and Fitch. One of Justice Samuel Alito's better-known rulings as a lower court judge was a decision in favor of Muslim police officers who sought a religious-liberty exemption from regulations barring them from wearing beards. Goodrich agrees that Dunn v. Ray is wrongly decided, and he and his organization have litigated a number of religious-liberty claims on behalf of Muslim clients. But he makes a strong case that the ruling was not motivated by hostility towards Muslims.

What, then, explains the Court's decision? The majority's short and cryptic opinion makes it very difficult to know for sure. But Goodrich, my VC co-blogger Will Baude, and Doug Mataconis, all make a highly plausible case that the real concern was frustration with anti-death penalty activists who, in the view of many conservatives, often raise dubious last-minute claims in the hopes of delaying executions. To say that this factor likely explains the ruling is not to say that it excuses it. The fact that activist lawyers sometimes abuse the process does not relieve the justices of their obligation to carefully consider the facts of each case on their own merits. In this instance, those facts strongly suggest that Ray's lawyers raised the religious discrimination claim as soon as quickly as possible. But a bias against seemingly late-breaking claims in death penalty cases is not the same thing as a bias against Muslims.

Some of those who contend that the Ray decision reflects an anti-Muslim double standard also link it to the Court's recent ruling in the travel ban case, where it upheld the president's order barring citizens of several Muslim-majority nations from the United States, despite very strong evidence of bigoted motivation that would have led the policy to be struck down in most other contexts. I yield to no one (or at least to very few) in the degree of my opposition to the travel ban ruling. I consider it one of the worst Supreme Court decisions of my lifetime. Unlike Dunn v. Ray, it really did set a dangerous precedent. The "national security" rationale for the travel ban was, if anything, even more dubious than the prison's security justification for barring Ray's imam from the execution chamber, thereby creating a precedent for upholding similar flimsy pretexts for discrimination in the future. And there is indeed an egregious double standard at work in the travel ban case.

But the double standard at issue was not the result of bias against Muslims, but rather of giving unwarranted deference to the government in immigration cases, that would not be applied elsewhere. For reasons I summarized here and more fully in an amicus brief I coauthored in the case, that approach is deeply at odds with the text and original meaning of the Constitution. It also lacks any good pragmatic justification. But the double standard is not motivated by anti-Muslim bigotry on the part of current Supreme Court justices, and has roots in previous immigration decisions involving other groups. Indeed, both Chief Justice Roberts' majority opinion and - even more so - Anthony Kennedy's concurrence, express thinly veiled distaste for Trump's anti-Muslim statements and motives.

Dunn v. Ray and especially the travel ban case are terrible decisions, even if not motivated by anti-Muslim prejudice. I hope the former will not be a model for future cases, and that the latter will eventually be overruled. But we can more effectively oppose such rulings if we understand what led to them in the first place.

There's a saying in the Bible that goes, "Come, let us reason together."

And you can bet Alexandria Ocasio-Cortez, with her Green New Deal and all, hasn't read it.

That's to say: The Green New Deal is about as far from a thinking person's mind as can be.

Pollster and former Hillary Clinton adviser Mark Penn said Saturday that he believes Rep. Alexandria Ocasio-Cortez's "Green New Deal" would ruin the country.

Former Virginia Congresswoman Barbara Comstock (R) said Friday on "Fox News @ Night" that she believes it's only a matter of time before the state's lieutenant governor, Justin Fairfax, no longer holds his office.

A Cornell Law professor who is also advising freshman Rep. Alexandria Ocasio-Cortez joined Tucker Carlson on Friday to iron out the congresswoman's radical "Green New Deal."

Why college writings are complicated but the perfect solution fallacy is worse.

The legal world has been abuzz with the nomination of Neomi Rao, and my coblogger Jonathan Adler has detailed her accomplished background here. He has also criticized the focus on her college writings on topics such as homosexuality and consent. I have only met Neomi on a few occasions and hardly know her, so my observations in this post are largely those of an outsider that has access to similar information as the rest of the public.

First, I would like to point out that Republican politicians and parts of the conservative media have done Neomi no favors in comparing the accusations against her to those that Justice Brett Kavanaugh encountered. One example of this is her college classmate's Jeremy Carl's National Review piece entitled "The Kavanaughing of Neomi Rao", which manages not to reference Brett Kavanaugh by name a single time in the actual text of the article. Instead, we are served to unsubtle allusions in lines such as the one that "Rao is an outstanding nominee who, like many other conservatives, is not being attacked for her faults, but for her virtues." Meanwhile, Megan McArdle writes that Neomi "is being targeted by a similar sort of allegation — in the same family, but distantly related." In my view, whatever one thinks about the procedural aspects of Brett Kavanaugh's nomination and confirmation process, the accusations against him were significantly more serious than those against Neomi. Nobody has come forward to claim that Neomi committed sexual assault or otherwise broke the law. Additionally, Neomi admits--and states that she regrets--writing what she wrote about gender equality and the nature of sexual consent. Brett Kavanaugh admits nothing and regrets nothing when it comes to his relations with the female gender. Last but not least, Neomi is not under suspicion of having committed perjury at her hearings. Those who believe that there is any equivalence in unfair treatment of Neomi Rao and Brett Kavanaugh may want to revisit the latter's record regularly.

Second, should Neomi's college writings matter? Jonathan Adler emphatically says no, and David Lat has similarly urged for some time that judicial nominees' college writings should generally be left in the past. Lat makes very reasonable points about how people often change their views and how college should be a time for experimenting intellectually, lest we only accept what David Brooks termed organizational kids that never dare to say anything controversial. So why do college writings come up at confirmation hearings? One key reason, of course, is political opportunism, whereby both parties dig up all the dirt that they can. Another reason, however, raises more complications: judicial nominees were often less careful to hide their views in their youth than later in life when they entered the professional and especially political arena. I am therefore rather unconvinced when McArdle writes about Neomi: "If she's lying, there should presumably be some less elderly, and more relevant, evidence of deception." Given the nature of the political process, actually, no, I would not expect for there to be such evidence whatsoever because most people who have made it to the stage of being nominated by U.S. presidents are savvy enough not to produce it. At the end of the day, we do not know and cannot know for sure what Neomi or any other nominee thinks in her heart of hearts, an uncertainty that leaves us with some understandable anxiety given the great power of appellate court judges. That said, I would caution against dismissing an entire class of possible nominees because they were perhaps not raised by parents who were part of pre-existing political elites advising their children that in college they should "talk less, smile more".

Third, were the college writings that bad? I do find some of their content quite problematic, though unfortunately even when I attended Yale College several years after Neomi, in the early aughts, her past rhetoric on sexual consent was in line with what many other young conservatives believed (and some of them have become conservative commentators who to this day write similar things). I am troubled that Neomi wrote that "if [a woman] drinks to the point where she can no longer choose, well, getting to that point was part of her choice". For one, this potentially equates drunk dating with drunk driving in the sense that we should hold someone responsible (morally? legally? it's unclear) if the person gets raped similarly to how we would condemn someone (both morally and legally) for hitting someone with her car while drunk. But in the example of date rape, there is no legal offense without a rapist. Drunk dating does not make you a bad person the way drunk driving does, and implying otherwise is wrong. I don't buy that, as Ted Cruz at the hearings and conservative commentators since have tried to convince us, Neomi was simply trying to help women by giving them advice on how to protect themselves. Her statement was embedded in a moral (and potentially legal) context that unfortunately did lend itself to victim-blaming. I have explained in my scholarship on sexual fraud why the argument that someone could have done more to protect herself (even where factually accurate) is problematic because 1) that can be true of most crimes and torts and 2) it tells us nothing about what level of precaution is actually optimal at the societal level.

Fourth, that said, does this make Neomi Rao a particularly poor candidate for the D.C. Circuit? I doubt it. She shouldn't have said what she said, and I genuinely hope that she meant it when she disavowed those opinions at the hearing, but viewing her overall record, I find it hard to believe that she compares negatively in the pool of nominees that Donald Trump would realistically consider. This is where the perfect solution fallacy comes in: those who were already wiser on the topic of sexual consent in the 1990s are unlikely to be on the current political radar. Indeed, if Neomi's nomination got derailed, we would likely get a different Republican nominee who perhaps did not write anything in college newspapers but is no more likely to advance gender equality than the confirmation of Neomi Rao would. Note that this was not my view of Brett Kavanaugh and that, like Ilya Somin, I fully believe that a less problematic candidate could have been found if Kavanaugh failed to be confirmed given the gravity of his alleged conduct and behavior at the hearings.

Fifth, a broader problem remains, which is that while we are urged by some to forget what Neomi Rao said 25 years ago, that means she also had 25 years to express in a public forum that she changed her views. Monica Hesse writes in WaPo: "What I'd love is for someone to get it right. Some candidate or appointee to apologize not because a leaked photo had suddenly forced them to, but because they realized the error in their past behaviors, and they were prepared for an honest conversation illuminating America's hurtful past and the role they played in it." To be fair, perhaps Neomi didn't even remember what she wrote all those years back until it was brought up during the confirmation process. But those of us who put things in the press--even the college press--have a special responsibility to correct the record wherever possibly, a responsibility that is only increasing the more materials are available online and hence never truly become a part of the past. Of course, admitting to past intellectual mistakes can come at a (sometimes high) political price. Society can do its part in that respect by moving toward becoming more generous and hospitable toward those who step forward unprompted to say that they were once wrong and have changed their ways.

Arizona Rep. Debbie Lesko (R) described the contentious hearing between Democratic lawmakers and Acting Attorney General Matthew Whitaker "a theatrical show" Saturday on "Fox & Friends."

An accused murderer was spared an abortion charge in the deadly stabbing of his pregnant girlfriend because of New York's new abortion law, according to the New York Post.

Fox Nation host David Webb said Saturday that if the three embattled political leaders of Virginia were Republicans, an entirely different standard would exist.

The teenage son of a fallen Marine was recently gifted something that his father had long-wished to give him -- his 1991 Ford Bronco truck.

A panel decision had said there is such a right to carry (though the state can decide whether people must carry openly or may carry concealed); the Ninth Circuit has just agreed to rehear the matter with an 11-judge panel.

For more on the panel decision from last Summer, see here. The panel will include the Chief Judge Sidney R. Thomas, plus 10 randomly selected judges; those judges must come from either the roster of active judges, or of the senior judges who served on the panel (in this instance, Judge O'Scannlain and Judge Clifton). En bancs in most circuits include the entire court, but because the Ninth Circuit is so large, its en banc panels include only 11 judges.)

To the extent such things are relevant, the Ninth Circuit has 23 active judges, of whom 7 are Republican appointees and 16 (including Chief Judge Thomas) are Democratic appointees. At the same time, note that Judge Clifton, while a Republican appointee, voted against right-to-carry on the panel; and some Democratic-appointed judges on the Ninth Circuit endorsed an individual rights view of the Second Amendment even before D.C. v. Heller, though that doesn't say what they think of carrying outside the home.

In her "Final Thoughts," Tomi Lahren said on "Fox nation" that the only "green" attribute to the liberal Democrats' "green new deal" is the money they want to take from taxpayers to "fund their socialist utopia."

Mike Lindell, the creator of "My Pillow," joined "Starnes Country" on Fox Nation to react to the prominence of new abortion laws and to laud President Trump for his State of the Union address.

How to ensure lack of transparency and prevent asylum seekers from accessing rights.

Thank you to Eugene for the warm welcome! I look forward to many contributions and conversations on the blog.

The Intercept writes about disconcerting developments at the U.S.-Mexico border. According to reporters, a number of photojournalists, lawyers, and others have been increasingly subjected to secondary screenings, holding, searching of their cell phones, and even withholding of food and water when attempting to enter Mexico. Some have been sent back to the United States without ever being able to enter at all. Much of this appears to be the result of requests by the United States to have these individuals prevented from documenting how asylum seekers are treated or helping them to navigate the immigration process. One example of the role of photojournalists has been to provide evidence that U.S. Border Patrol agents routinely turn away asylum-seekers who crossed the border, failing to process them first as the law demands.

Mexican government agents seem to have been rather vague in their explanations for why journalists and others have been receiving secondary screenings or have been turned away, but a number have blamed it on instructions from the United States. The Trump administration has been putting pressure for some months on asylum seekers to wait in Mexico and only enter the United States once/if they receive a positive adjudication the U.S. immigration process. The recent stories from the border, including that immigration lawyers were prevented from entering, strengthens the suspicions of many that the Trump government is actually seeking to hinder even that possibility.

Underlying all these activities at the border is a deep layer of secrecy that my coauthor Cassandra Robertson and I have criticized before in our Emory Law Journal article about the no-fly list. For the recent events at the border, many questions remain unanswered. What criteria did the U.S. government use to put particular journalists and lawyers on watchlists that it shared with the Mexican government? How can inclusion on those lists be challenged? Is the Mexican government cooperating willingly when scrutinizing or rejecting the individuals on the lists or has the Trump administration threatened any sanctions if Mexico does not comply?

Lack of transparency breeds lack of transparency, and the denial of basic rights at the border--both for asylum-seekers and those who wish to aid them--does not bode well for the rule of law and human decency in the days to come.

Hypnosis, fungal spores, and a Bernie independent.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

• Federal inmate files lawsuit challenging his treatment in solitary confinement. Bureau of Prisons: He's been transferred to a new prison, so the case is moot. D.C. Circuit: [Looking up from rap sheet] Yeah, we're pretty sure this guy is going to end up in solitary again, so the case can go forward.
• Delaware attorney longs to be a judge, but there's one problem: He's a "Bernie independent," and the Delaware Constitution limits service on the state's courts to members of the Democratic and Republican parties, who must be appointed in equal numbers. Unconstitutional limit on the freedom to associate or legitimate attempt at ideological balance? Third Circuit: Dear Delaware, we get what you're trying to do, but the First Amendment won't let you do it this way.
• Did the U.S. Patent & Trademark Office err when it concluded that Booking.com was generic and therefore could not be trademarked? Fourth Circuit: Booking Yeah! Dissent: Booking Nah!
• The Natural Gas Act allows private companies to use eminent domain to build pipelines but does not give them the power to take immediate possession of the land they want prior to final judgment in the condemnation action. District court: No problem, they can just take immediate possession by means of a preliminary injunction. Fourth Circuit: We said this was OK 15 years ago, which makes it OK today, too.
• Allegation: Church seeks zoning variance so it can operate out of Baltimore County, Md. house (situated on 1.2 acres of land). Planning officials don't object. Yikes! The neighbors object and are super racist about it. The county denies the variance. Fourth Circuit: Given the irregularities in the county's decision-making process, it is at least possible officials were swayed by the neighbors' animus. The case should not have been dismissed. And the church's First and 14th Amendment claims deserve strict scrutiny.
• Federal law makes it a crime for any agency charged with the administration of juvenile justice or incarceration to deprive people of their constitutional rights. Allegation: That's exactly what the juvenile courts in Lauderdale County, Miss. are doing—running a "school-to-prison pipeline." Fifth Circuit: No dice. The Youth Court is not a "governmental agency" within the meaning of the statute.
• Transgender woman applies for job and is extended an offer. But then soon-to-be employers discover woman had concealed from them that she'd been fired from her previous job. Offer rescinded. Woman files Title VII lawsuit asserting discrimination on the basis of transgender status. Fifth Circuit panel (Judge Ho): Even setting aside whether Title VII protects against transgender discrimination, the woman can't possibly make out a Title VII claim—not least because the employers rescinded her offer before they learned of her transgender status. Concurrence (also Judge Ho): But just to be clear, Title VII absolutely does not protect against transgender discrimination. Concurrence (Judge Higginbotham): And of course, "elegant asides" about Title VII's scope are absolutely beside the point in this case.
• Bank robber is sentenced to 20 years' imprisonment and ordered to pay $189k (plus interest) in restitution, in quarterly installments of the greater of $25 or 50 percent of his prison wages. The robber sticks to the installment plan while also accumulating $3,400 in prison wages. Gov't: We want that money, too. District court: Cool. Fifth Circuit: Not cool. The restitution order specifies an installment plan and the inmate has stuck to the plan, so gov't can't demand more.
• After a jury convicts Detroit man of gang-related murder, Juror #4 reveals that other jurors had Facebook-stalked the defendant, researched information about gangs, and discussed their findings during deliberations. State courts: No big deal; the Facebookery and Googling largely duplicated evidence presented at trial. Federal district court: Actually, this is a very big deal; the state needs to either retry the guy or set him free. Sixth Circuit: Agreed that it's a potentially big deal, but rather than a second trial, the guy is entitled to an initial hearing on whether the jurors' "extracurricular fact-finding" actually affected the verdict. Dissent: The district court was well within its rights to say that a new trial is the appropriate remedy.
• Elkhart, Ind. man is shot in the face, lives to testify. Defendant is convicted based on the man's identification. But wait! Did the identification materialize because of hypnosis—which the prosecutor suggested and arranged for but, aware "there might be a problem in court," never disclosed to the defense? Seventh Circuit (over a dissent): Well, the lack of disclosure was a problem. The defendant gets a new trial.
• Woman doesn't pay her $60 co-pays for physical therapy. A debt collector sends her letters for three years; she doesn't pay, so the debt collector informs credit reporting agency that she owes nine debts of $60. Yikes! The woman sues the debt collector because the debt should have been reported in aggregate ($540)—not as nine separate debts of $60. District court: Yup, the debt collector must pay her $1,000. Seventh Circuit: Reversed. No law or regulation actually says that.
• Little Rock, Ark. police dept. hires officer who attended a KKK meeting in high school. His five-year career is "horror show" of misconduct, culminating in unjustified fatal shooting of a black 15-year-old. (Click here for longform journalism.) Eighth Circuit: The teen's mother can't sue the police chief or the city. (And while she did win a civil trial against the now-ex cop, he lacks the money to pay the $415k he owes her.)
• In this easy-affirm from the Eighth Circuit, a man solicited more than a million dollars to establish a nation for the Hmong ethnic group, the details of which were "top secret." (The secret was fraud.)
• Valley fever, caused by inhaling fungal spores, is particularly prevalent in certain California prisons. (It's unclear why.) Dozens of prisoners sue, claiming their increased exposure risk violates the Eighth Amendment. And black prisoners—who are more likely to get the fever (it's unclear why)—claim they weren't kept out of those prisons soon enough. Ninth Circuit: Qualified immunity. Prison officials tried to mitigate exposure risk, and besides, people do voluntarily live in places with increased risk of valley fever. As for the black prisoners' claim—prison officials couldn't know the Constitution required them to discriminate. (A further detail: Because of other problems, California's prison medical system has been under federal control since 2006.)
• Troubled California man, arrested for slashing his girlfriend's tire, is left alone in a police cell. On the phone in another room, arresting officer is allegedly told the man is suicidal. Which he is: Back in the cell, the man is hanging himself with his belt. By the time the officer returns, about 15 minutes later, the man has severe brain damage. The man sues. Ninth Circuit (over a partial dissent): It's just not clear the officer knew enough to have had to rush back to the cell. So he gets qualified immunity on the federal claim against him. But claims against him under California law and against the city will proceed to trial.
• Alabama corrections officials refuse Muslim inmate's request to have his imam present at his execution. Rather, only a Christian chaplain will be able to be present in the chamber. Eleventh Circuit: We are "exceedingly loath" to second guess corrections officials, but this looks an awful lot like favoring one religion over another and thus a violation of "the heart of the Establishment Clause." Delay the execution. Supreme Court (over a dissent): The inmate waited far too long to seek relief. He can be executed. (Ed. note: And he was.)
• Man who's high on drugs exposes himself, wields knife menacingly on streetcar. The streetcar empties. The man declines repeated orders to drop knife, advances toward police officer. The officer shoots him (three times), including a fatal shot to the heart. Officer: And then the man tried to get up, so I shot him again (six times). Video: The man did not start to get up. Jury: The officer is not guilty of murder (for the first volley of shots), but he is guilty of attempted murder (the second volley). Court of Appeal for Ontario: No need to reconsider the verdict or the officer's six-year sentence.

Tracy McGlothian, an experienced seamstress who also has an MBA, wants to teach students how to sew for a living (rather than as a hobby). But Virginia forbids Tracy from doing that without first obtaining a vocational school license, which is no easy task. The application process is byzantine and expensive. And officials have repeatedly rejected Tracy for no defensible reason. So last summer, Tracy and her husband, Jon, sued the state under the First Amendment. And in January, a federal magistrate judge ruled the case should go forward. Click here to read more.

Tomi Lahren traveled to the southern border for a five-part Fox Nation special presentation. 

Campus Reform's Cabot Phillips attended a Venezuelan Freedom rally in Washington, D.C., where those in attendance warned against moving the United States toward socialism.

When is a threat to reveal something embarrassing blackmail, and when is it permissible? Plus a special Bill Cosby (but non-sexual-assault) connection.

Jeff Bezos alleges that the National Enquirer has (1) threatened to release photos sexted between him and Lauren Sanchez unless (2) he puts out a statement recanting allegations that various Enquirer coverage was politically motivated (and promises not to make such allegations in the future). Is this criminal blackmail?

Here is an excerpt of the email that Bezos says the Enquirer sent him:

Here are our proposed terms:

1. A full and complete mutual release of all claims that American Media, on the one hand, and Jeff Bezos and Gavin de Becker (the "Bezos Parties"), on the other, may have against each other.

2. A public, mutually-agreed upon acknowledgment from the Bezos Parties, released through a mutually-agreeable news outlet, affirming that they have no knowledge or basis for suggesting that AM's coverage was politically motivated or influenced by political forces, and an agreement that they will cease referring to such a possibility.

3. AM agrees not to publish, distribute, share, or describe unpublished texts and photos (the "Unpublished Materials").

And here's the federal extortion statute, 18 U.S.C. § 875(d):

Whoever, with intent to extort from any person ... any money or other thing of value, transmits in interstate ... commerce any communication containing any threat to injure the property or reputation of the addressee or of another ... shall be fined under this title or imprisoned not more than two years, or both.

There are basically four elements in this statute:

1. There has to be a transmission in interstate commerce. An email qualifies.

2. There has to be a threat to injure reputation (whether through false allegations or through true ones). A threat to publish sexually themed pictures would qualify, I think. True, Bezos's affair with Sanchez is already publicly known, but the photos, if revealed, are likely to exacerbate the damage to his reputation by making the story more vivid and memorable and by exposing him to public ridicule. (Compare State v. Pauling (Wash. 2003), which found that a similar threat was a threat "[t]o expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule." A common definition of injury to reputation is exposing someone to "hatred, contempt, or ridicule.")

3. The threat has to be aimed at getting a "thing of value." Courts have generally read this broadly, to cover anything (tangible or intangible) that's valuable to the defendant. U.S. v. Hobgood (8th Cir. 2017) holds that even extorting an apology from the victim is covered:

A "thing of value" includes intangible things—such as a "sexual relationship," for example—and "the focus of the ... term is to be placed on the value which the defendant subjectively attaches" to what he seeks. The stipulated facts concerning Hobgood's efforts to secure a mea culpa from KB constituted sufficient evidence to support a finding that an apology from KB was a thing of value to Hobgood.

4. But wait:

Not all threats to engage in speech that will have the effect of damaging another person's reputation, even if a forbearance from speaking is conditioned on the payment of money, are wrongful. For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television "on-the-side-of-the-consumer" program. Or a private club may threaten to post a list of the club members who have not yet paid their dues.

That's from U.S. v. Jackson (2d Cir. 1999), which was modified later on other grounds. The case involving an attempt to extort $40 million from Bill Cosby "by threatening to cause tabloid newspapers to publish" a woman's "claim to be Cosby's daughter out-of-wedlock." All those examples have this form:

• A has a plausible claim that B should do X (e.g., make good on a warranty, or pay a debt).
• A is demanding that B do X.
• A is threatening to reveal that B hasn't done X.

This is often called the "nexus to a claim of right" requirement, or just the "nexus" requirement—if the threat and the demand are connected to something to which the threatener is entitled, then the threatener is not punishable. The absence of such a nexus is the fourth element of the crime. Many states, interpreting their state laws, have required a similar showing of absence of nexus, in part on First Amendment grounds; see here for more.

How does this play out? Let's return to Hobgood, where the defendant demanded an apology from his ex for her supposed mistreatment of him during their brief relationship. Had he done this simply by threatening to reveal the mistreatment—"apologize to me for beating me, or I'll tell all our friends how you beat me"—then the nexus element would have been satisfied, and he would have been off the hook. But he was threatening to do something else, which meant that he failed the nexus requirement:

Hobgood's threats were "wrongful" in the sense that they had no causal nexus to a claim of right. His threats to disseminate information that KB was an exotic dancer and prostitute were not related to why he thought she owed him an apology. Hobgood's speech is a far cry from a consumer complaint aimed at receiving a refund or a club manager's public identification of members who are delinquent on paying their dues. In those cases, the speaker has a plausible claim of right to the thing of value, and the threat is related to that right. Not so here.

State v. Pauling (Wash. 2003) reached a similar result applying Washington state extortion law:

The trial court concluded that Pauling knowingly and intentionally attempted to obtain the $5,000 judgment from Doe by threat and that such threat communicated to Doe an intent to continue to send the nude photos to friends, family, and neighbors. Clearly, there was no nexus between the threat to send nude photos to family and friends and the collection of a lawful judgment. This conduct is sufficient to establish the crime of extortion....

For the same reason, I don't think the nexus requirement covers what the National Enquirer is accused of threatening. Even if the Enquirer has a plausible claim of right to the apology for allegations of political influence (perhaps if the allegations were indeed incorrect)—and a plausible claim of right to having Bezos promise not to repeat those allegations—the threat to publish the photos is not "related to that right."

Finally, note that the Washington extortion statute, which basically has the same elements as the federal statute (though without the need for interstate communications), may also apply here: Though the messages were presumably sent to Washington from out of state, Washington law covers any "person who commits an act without the state which affects persons or property within the state, which, if committed within the state, would be a crime." Bezos is apparently a Washington resident.

House Judiciary Committee Ranking Member Doug Collins blasted Democratic committee member Eric Swalwell for what he considered to be badgering of Attorney General Matt Whitaker.

Tennessee Democratic Rep. Steve Cohen grilled Acting Attorney General Matt Whitaker Friday over the Mueller probe and the lease of Washington, D.C.'s "Old Post Office" building for the Trump International Hotel.

Rep. Sheila Jackson Lee snapped at Acting Attorney General Matthew Whitaker during his testimony before Congress Friday, telling him that making light of the proceedings was "not acceptable."

"Fox News Sunday" anchor Chris Wallace said Rep. Alexandria Ocasio-Cortez's much-touted "Green New Deal" is "totally unrealistic," and he said many top Democrats are only "paying lip service" in their responses to the proposal.

In a tense exchange with House Judiciary Committee Chairman Jerrold Nadler during a House hearing Friday, Acting Attorney General Matthew Whitaker drew gasps when he called time on Nadler's five-minute questioning round.

In her "First Thoughts" on Fox Nation on Friday, Tomi Lahren ran down the various scandals that are plaguing Virginia Democrats.

Opening the Overton window on responding to cyberattacks

My latest op-ed tries to open the Overton window on responding to cyberattacks:

Cyber weapons have allowed Russia to reinvent deterrence on the cheap. Recent reports reveal a prolonged, systematic, and not particularly subtle Russian campaign to infiltrate the U.S. power grid.

It raises the prospect that Russian strongman Vladimir Putin has the ability to cut off power to large parts of the United States, as he has done already in Ukraine. He has "prepare[d] the battlefield, without pulling the trigger," said one former U.S. official.

All of which raises the question: how to deter him? After all, where Putin goes, Iranian mullahs and Kim Jong Un will not be far behind. If any of these actors knock out even a small segment of our power grid, we will need to retaliate, and not with restraint. It's time to start thinking the unthinkable.

Four principles should guide American decision makers in developing tough responses to other nations' cyber provocation ...

Read the rest at Fifth Domain.

Conservative commentator and editor-in-chief of The Daily Wire Ben Shapiro mocked freshman Rep. Alexandria Ocasio-Cortez's sweeping "Green New Deal."

Highly recommended.

I just listened to all three episodes that have been posted so far, and I highly recommend it: It's fascinating and important constitutional history, engagingly told. The IJ folks of course have their own perspective on the Fourteenth Amendment ("more is more" would likely summarize it), but I expect that many of our readers will share that perspective, and in any event there's plenty to learn from it regardless of your views on unenumerated rights, incorporation, and similar questions.

Our coblogger Randy Barnett, unsurprisingly, makes an appearance -- he's a leading scholar of the subject -- as do various other law professors, who (unlike Randy) are mostly not libertarians.

Some troubling uncertainties in a case of troubling allegations of religious discrimination

Tonight, the Supreme Court decided by a 5-4 vote to lift a stay of the execution of Domineque Ray, a Muslim inmate who sought to have an imam of his faith, rather than the prison's Christian chaplain, attend him in the execution chamber. (The Eleventh Circuit had stayed the execution on grounds of religious discrimination.) He was executed about an hour ago. I was troubled by these proceedings, but I think that makes it important to disentangle what is going on.

Various people are describing this decision as the next Dred Scott, Korematsu, etc., but I am not sure that is right. The opinion is brief (as Shadow Docket opinions usually are) but it indicates that the claim was not denied on the merits. Rather it was denied because the Court thought it was filed too late. The Court has previously indicated that last-minute stays of excution are disfavored if they could have been filed earlier. This policy probably stems from some dubious reasons, such as a mistrust of the death penalty defense bar, and some better reasons, such as the belief that the Court does not do its best legal thinking in the middle of the night.

Justice Kagan has a very powerful dissenting opinion in response, arguing that the claim was filed as soon as it reasonably could be. The state's statutes did not make clear that only the Christian chaplain could be in the chamber, and the state's actual execution protocols are apparently secrets. The Eleventh Circuit, again, had agreed.

So even though the Court's opinion does not embrace denominational discrimination, I was still troubled that its conclusion seemed to rest on the questionable application of a technicality, with extremely high stakes.

But there is another peculiarity. The district court, who is usually the court in charge of making factual determinations, had concluded that the claim was indeed brought too late, that:

Since Ray has been confined at Holman for more than nineteen years, he reasonably should have learned that the State allows only members of the execution team, which previously has included a state-employed chaplain, inside the execution chamber. Indeed, it was the state-employed chaplain who facilitated Ray's involvement with an imam for spiritual advice regarding his impending execution.

The Eleventh Circuit second-guessed this determination, concluding that the state had "offer[ed] only the barest assertions about common knowledge in the prison." But still, it was the district court who held a hearing and who usually makes credibility judgments and factual determinations.

So it seems to me that the execution really hangs on a set of factual judgments and procedural rules -- should Mr. Ray have known (or did he know) about the prison's policies earlier, and what is the Supreme Court supposed to do when the district court and a court of appeals disagree on a factual question like that in a case of thin evidence? I am not sure what the legal answer is, and that makes it an easy case in which to indulge one's own priors about who are the bad actors here. And that is troubling whoever is right.

(Finally, speaking as a departmentalist, not every responsibility should end with the federal courts. Even if the Supreme Court forbids intervention, I think the state ought to try harder to accommodate the religious needs of the condemned.)

Funny line from The Onion; thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer.

President Trump climbed up to the rostrum in the House chamber Tuesday night, believing he he could convince Democratic leaders to give him the $5.7 billion to build his wall along the Mexican-U.S. border.