[Eugene Volokh] Foundation for Individual Rights in Education on the University of Florida Matter

Here's their statement from yesterday; I expect it's short precisely because it was posted on the weekend, when some people have days off:

FIRE is deeply concerned by a report in The New York Times that the University of Florida has barred three professors from participating as witnesses in a voting rights lawsuit against the state of Florida.

FIRE has said it before, and we'll say it again: The profound civic importance of fair trials requires the ability of fact and expert witnesses to come forward to testify truthfully without fear that their government employer might retaliate against them. Public university faculty are no exception. We call on UF to reverse course immediately.

UF should be aware that Plymouth State University's ill-considered decision to punish faculty who had testified in a trial ultimately cost the state of New Hampshire's taxpayers $350,000. FIRE warned Plymouth State then, and we're warning UF now: If you pick a fight with the First Amendment, you will lose.

Here's FIRE's summary of the Plymouth State incident:

On July 31, 2018, Plymouth State University (PSU) punished two professors for their participation in a criminal proceeding. PSU adjunct professor Nancy Strapko testified as an expert witness for Kristie Torbick, a high school guidance counselor convicted of sexual assault, and professor emeritus Michael Fischler sent a letter to the court during Torbick's sentencing. After their participation was publicly criticized in the months leading up to Torbick's sentencing in early July, PSU refused to rehire Strapko and suspended Fischler from teaching until he completes Title IX training. On September 7, FIRE sent a letter to PSU reminding the university that professors' expression on matters of public concern is protected by the First Amendment, and that citizens should not be disciplined for speaking on behalf of those facing the criminal justice system. On February 15, 2019, PSU settled with Strapko, agreeing to pay her $350,000 to avoid a lawsuit over her firing and agreeing to release a public statement acknowledging the importance of witnesses participating in the criminal justice process.

For my longer analysis, see this post.

Via Law http://www.rssmix.com/

[Josh Blackman] Debs in the Heart of Texas

[In 1912, Eugene Debs received nearly 25,000 presidential votes in Texas. Can Debs get 5 votes in U.S. v. Texas?]

In the challenge to S.B. 8, the United States has placed a lot of weight on In re Debs (1895). So much so that they barely make arguments based on Grupo Mexicano and Armstrong. The Solicitor General has likely determined that the best way to win this case is to rely on a very unique aspect of federal power that would not disrupt other longstanding conventions concerning equitable jurisdiction. This century-old precedent warrants a careful look.

With perfect timing, Aditya Bamzai and Sam Bray posted a new paper to SSRN, titled Debs and the Federal Equity Power. (Sam blogged about it last night). Here, the authors write that Debs "has a good claim to be the most controversial equity decision ever reached by the Supreme Court." Now, the article is not about United States v. Texas, but it does address one of the threshold issues in the case.

Part III.B (pp. 32-38) considers "the possible limiting principles available for nonstatutory equitable relief"--the exact sort of relief the Solicitor General seeks in U.S. v. Texas. Bamzai and Bray sketch three possible limiting principles.

First, the sole limit would be that if "no adequate remedy" is available at law, then "a federal court has the power to remedy that defect, at least when a constitutional right is at stake." To paraphrase Marbury, "[w]herever there is a constitutional right, we might say, there is a remedy." (Of course, William Marbury never got a remedy because the Court lacked jurisdiction.) The authors write that with first approach, "there may not really be a limit." Indeed, this capacious view mirrors the approach advanced by the Grupo Mexicano dissent.

Second, in the absence of a statute, "a plaintiff would have to show some other equitable cause of action." The authors reject this theory, and argue there was no "cause of action" in Debs. (I have written about this issue before, and will respond to this aspect of Bamzai and Bray's analysis in another writing).

Third, equity may be available "to protect a proprietary interest (or in some formulations, a personal or proprietary interest)." The authors derived this principle from Debs, as well as from Ex Parte Young. Seth Barrett Tillman and I have described the basis for equitable jurisdiction in Young in very similar terms:

In Young, the government was regulating the railroad company. Such disputes about contested rights and duties involving property (e.g., interpleader) also lie at the very core of historical equitable jurisdiction. Specifically, the Young plaintiffs sought to prevent future state action regulating their own property. To accomplish this goal, they invoked the court's equitable jurisdiction to sue their company, its directors, and state officers before those state officers could regulate the plaintiffs' own property through an imminent coercive lawsuit.

Of these three approaches, Bamzai and Bray favor the third, property-centric approach.

On p. 35, the authors turn to U.S. v. Texas.

More specifically, the traditional limiting principles are especially apt in a context, such as United States v. Texas, where the United States is bringing a nonstatutory claim for equitable relief. This is so for two reasons. First, precisely because the claim is nonstatutory, it does not have the narrowing and focusing that comes from the statute. This is the wisdom of the traditional property connection with the statutory exception. Second, if the basis for the suit by the United States is a reach back almost 130 years for a litigation superpower, under In re Debs, it is more than appropriate for the historic limits on that superpower to be brought along as well. Retrieve the power, retrieve the limits.

And what are those limits that must be retrieved?

In a case where there is no statutory basis for injunctive relief, the plaintiff should be required to connect her claim to some proprietary interest (or, in some formulations, personal or proprietary interest). Although there are ways in which the sovereign has broader power in equity, this is not one of them.

And how do those limits apply to U.S. v. Texas?

Thus Debs should be read as authorizing suits by the United States to protect the rights of U.S. citizens when that suit can be connected to some kind of proprietary interest—whether a proprietary interest of the sovereign itself, or the proprietary interests of the public that are protected in the abatement of a public nuisance.

In Texas, the definition of a public nuisance can be found in Title 5 of the Health and Safety Code, Chapter 343. Most of the public nuisances concern unsafe premises and garbage.

How does Bamzai and Bray's analysis apply to the Solicitor General's case? The answer turns on what exactly are the "proprietary interests" of the United States. The Solicitor General argues that "the United States has a sovereign interest in preventing States from nullifying this Court's decisions by thwarting judicial review." (p. 16). I have long argued--and I think Bamzai and Bray would agree--that this sort of interest is far removed from the types of suits long permitted at equity. There should be at least some connection to property. Bamzai and Bray write:

Equity is not static, and yet the Court has also rejected an approach to federal equity powers that is completely presentist. The historic landmarks of the equity tradition, including cases like Gee and its antecedents, are relevant today precisely because of the basis of federal equity power. So the mere fact that the property connection has faded in recent cases, does not decide its applicability, at least as long as the Court is committed to the approach of Grupo Mexicano.

Under Grupo Mexicano, this sort of equitable case was not known in the High Court of Chancery.

However, the Solicitor General presents an alternate argument: "The United States also has authority to sue because S.B. 8 interferes with the activities of the federal government in violation of principles of preemption and intergovernmental immunity." (p. 27-28). For example, the Bureau of Prisons has the responsibility to arrange for abortions if an inmate requests one. This sort of interest seems much closer to the type of "proprietary" property interest in Debs that Bamzai and Bray discuss.

Still, even if DOJ has an interest to vindicate these interests in equity, the court could not "strike down" the entirety of S.B. 8. At most, the court could issue an injunction stating that S.B. 8 could not be enforced in a way that would interfere with these federal proprietary interests. For example, if a Texas clinic performs a post-six-week abortion for a federal inmate, that clinic could not be sued. An injunction could be crafted along these lines to vindicate the interests of the United States, while leaving the remainder of the law in effect. S.B. 8's intricate severability clause supports this result.

Ultimately, the Court could issue a narrow ruling for DOJ with respect to its proprietary interests, that would still maintain the remaining status quo for S.B. 8 for the foreseeable future.

Via Law http://www.rssmix.com/

[Eugene Volokh] Univ. of Florida Blocks Professors' Expert Witness Work in Case Against Florida Government

[A clear academic freedom violation, and likely a First Amendment violation as well: "A concept of loyalty that sweeps so broadly is not one that may legitimately trump compelling interests in speaking on matters of public concern."]

The job of a modern American university—and the purpose of its guarantees of academic freedom—is to promote the development and dissemination of expert knowledge, including opinions based on that knowledge. And that's so regardless of whom the knowledge reflects well or badly on.

Say a University of California professor's research uncovers that California government policy is bad for business, compared, to, say, the policy of Texas. Publishing that research may drive businesses away from California, thus harming the California economy and indirectly the University of California itself. Yet it's the professor's job to publish it nonetheless. In the long term, disclosing these policy problems may help California, because identifying the problem is a necessary step towards fixing it. But in any event, the professor's job is to discover and disclose the truth.

Or say the professor uncovers what he believes to be problems with the UC itself—for instance, that its approaches to race-based affirmative action or to athletic scholarships or to educational policy are unsound in various ways. And say he testifies to Congress or the legislature about it.

That might be bad for the university, at least in the short term, in that it may reduce federal funding or state funding or alumni donations or applications from prospective students. Or it might simply undermine, by criticizing, the policies that the Chancellor or the Regents or the Legislature seek to pursue. Or it might be used against the university or the state in litigation. But his job is to tell it like it is.

That's why the University of Florida's action here strikes me as wrong. To quote Politico (Gary Fineout & Marc Caputo):

Florida's flagship university is under fire for violating the free speech rights of three professors it blocked from testifying in a lawsuit challenging the state's new law voting restrictions.

Top University of Florida officials asserted that it was a conflict of interest for professors to testify in the lawsuit because they're state employees. It's a notable turnaround in university policy, which for years allowed professors to testify in lawsuits against the state—including one that unsuccessfully challenged the state law that restricted voting rights for convicted felons.

The University's ostensible rationale is that "Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida." But this wrongly assumes that the job of university professors is to promote the interests of the Florida government in particular litigation, or to promote the interests of the University in particular litigation, or at least not to express views that run contrary to the Florida government's or University's.

And of course this rationale would justify restrictions not just on expert witness work, but to state or federal legislative testimony, to op-eds, to scholarly articles, and the like. Indeed, it might apply to speech that "may pose a conflict of interest to the executive branch of the [United States government]" as well: After all, state universities get a great deal of funding from the federal government, and the federal government might well want to impose similar constraints on university professors whom it directly or indirectly funds, if it sees Florida is being allowed to do so. And it would apply to speech that suggests the impropriety of the University administration's policies at least as much as to speech that suggests the impropriety of the state or federal governments' policies. That's a rule of academic subservience to political institutions' policies, not of academic freedom.

Indeed, if anything, expert witness work in court should be seen as especially protected from restriction. It provides extra information to courts resolving legal claims. It is considered in the relatively calm and thoughtful environment of the judicial process. It is subject to rebuttal by the state's own expert witnesses. And presumably the state of Florida should have a broader interest in following the law, including federal law when it trumps state law (see the U.S. Constitution's Supremacy Clause). Professors' conveying their expert knowledge  to judges is thus especially valuable to the pursuit of truth (as well as to the administration of justice), though I think the same should apply to other forms of commentary as well.

Unsurprisingly, courts have indeed rejected such restrictions on expert testimony by faculty members. In Hoover v. Morales (1998), the federal court of appeals for the Fifth Circuit expressly struck down Texas policies which "prohibit[] state employees"—including, in that case, university employees—"from acting as consultants or expert witnesses on behalf of parties opposing the State in litigation":

The notion that the State may silence the testimony of state employees simply because that testimony is contrary to the interests of the State in litigation or otherwise, is antithetical to the protection extended by the First Amendment.

The Fifth Circuit held the same, sitting en banc, in Kinney v. Weaver (2004), where college instructors in a program that trained police officers were retaliated against for providing expert testimony against a police department in a case:

The record shows that the Police Officials see a conflict of interest whenever and wherever a police trainer testifies against police officers. Regardless of whether one uses the label "code of silence," we believe that, on this record, the defendants' asserted notion of "conflicts of interest" sweeps so broadly as to undermine its status as a legitimate government interest that can properly weigh in the [First Amendment] balance….

The Police Officials' charge of disloyalty makes sense only if Kinney and Hall owe fealty to law enforcement universally. Indeed, the Police Officials' stated view is that one is disloyal—and has committed an unforgivable "sin"—whenever one testifies against law enforcement officers anywhere. A concept of loyalty that sweeps so broadly is not one that may legitimately trump compelling interests in speaking on matters of public concern.

The same principle has been applied outside educational institutions as well, see, e.g., Clairmont v. Sound Mental Health (9th Cir. 2011), though the matter is less clear there, see Mikko v. City of Atlanta (11th Cir. 2017) (providing government officials with qualified immunity against such a claim, because, though "[w]e do not mean to say that Mikko's report or his intended testimony was notprotected by the First Amendment, which is an issue we need not decide," past precedent in the circuit "did not put the constitutional issue in this case 'beyond debate'"). But when it comes to universities and their tradition of academic freedom, the government may not impose "[a] concept of loyalty" "to the interests of the State" that trumps professors' academic freedom rights.

Now I should note that the University's arguments here may be limited to paying expert witness work; it appears that the University policy requires approval only for "Professional compensated activities, including but not limited to, activities for which travel expenses, travel support, and honoraria are paid, teaching at another institution, or employment as an expert witness." But in the words of the Fifth Circuit in Hoover, written in a section of the opinion titled "Is Speech Still Free If You Get Paid For It?,"

If all it takes to make speech commercial [and thus less constitutionally protected] is that the speaker is paid to say it, then every writer with a book deal, every radio D.J., and every newspaper and television reporter is engaged in commercial speech. "It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Likewise, the fact that one is paid to be an expert witness, does not make his testimony commercial speech. Therefore, the defining element of commercial speech is not that the speaker is paid to speak, but rather that the speech concerns the "economic interests of the speaker and its audience."

Perhaps a content-neutral rule generally prohibiting certain kinds of compensated outside activities might be permissible (though there are limits even on that, see U.S. v. NTEU (1995)). But here it's clear that the state's objection isn't that, say, the draw of big money would lead a professor to devote too much time to expert witness work to the detriment of teaching and scholarship. Rather, it's to the professor's expressing views that would undermine the Florida Executive Branch's litigation positions.

(Thanks to my coblogger Keith Whittington, wearing his hat as the Chair of the Academic Freedom Alliance's Academic Committee, for pointers to some of the cases I cited above. I expect a statement from the AFA soon on this very subject.)

UPDATE: A University of Florida faculty member writes:

Just to clarify the policy—which was adopted in the past 2-4 years (not sure how long, but it is new)—about which you cogently wrote earlier today, it does not hinge on whether the employee has a financial interest. As the form states, notice and then permission are required of "any activity or financial interest." When it was introduced to the faculty, we were informed by university counsel and our Dean that any activity, even those for which we would not receive any compensation (e.g., signing onto an amicus brief) requires advance permission.

{This is from Regulation 1.011, which is incorporated by reference on the form (and consistent with how the form was presented to faculty, at least at the Law School) (emphasis added):

(2) Definitions.

(a) "Outside activity" shall mean any private practice, private consulting, employment, teaching, research, business (including managerial interests or positions), or other activity, compensated or uncompensated, which is not part of the employee's assigned duties and for which the University provides no compensation.}

[The policy] was presented more as something to provide the university administration with notice, and its main intent, so we were told, was to document outside activities that might occupy an employee's time or, as in work for foreign nations and companies (specifically, given recent controversies, China), that might create legal and/ or political problems for the university and employee.

Given the quite obvious political nature of the litigation (and recent disclosures about the process by which the state's new surgeon general was hired by UF's medical school), it is highly unlikely that the university's posture is at all related to the paid nature of the expertise its faculty members were retained to provide.

Via Law http://www.rssmix.com/

[Jonathan H. Adler] Which Genie Will the Supreme Court Let Out of the Bottle?

[However the Supreme Court handles the S.B. 8 litigation, it may unleash mischief in other policy areas.]

The S.B. 8 cases present the Supreme Court justices with an interesting dilemma, apart from the questions of abortion and precedent. However the Court resolves Whole Women's Health v. Jackson and United States v. Texas, it risks setting a precedent that has implications for issues beyond abortion. In effect, the justices have to decide which genie they prefer to let out of the bottle.

Concluding that neither private parties nor the federal government may file pre-enforcement challenges to a law structured like S.B. 8 invites state legislatures to replicate its various features in laws targeting other constitutionally protected rights. This is the concern raised in the brief filed by the Firearms Policy Coalition I highlighted earlier. Gun rights are the most likely target of such laws, but we could imagine others (including spending on political speech). This is one of the genies.

Concluding that the federal government may file suit in equity to challenge and enjoin and law like S.B. 8, without express statutory authorization, on the other hand, could unleash a different genie. Allowing the federal government's suit would open the door to further such litigation in defense of constitutional rights that the current Administration prefers. What might this look like? We got a preview during the Trump Administration when Attorney General Bill Barr suggested DOJ would consider actions to challenge state COVID-19 restrictions that infringed upon religious liberty or other interests. Barr's statement turned out to be bluster. But if the Supreme Court green lights DOJ's brief here, the next administration could use that precedent to challenge state laws. This is another genie.

Concluding that private parties may sue to enjoin enforcement of S.B. 8, such as by suing all judges or courts as a class, could also unleash a genie, as it would have the potential of greatly expanding pre-enforcement challenges on constitutional grounds. It could even have the effect of establishing a de facto constitutional right to pre-enforcement review, despite the contrary holding of Thunder Basin Coal v. Reich.

The point of this post is not that any one of these resolution is better or worse than the others. Rather, it is simply to observe that the Court is in a challenging position. Given how S.B. 8 was carefully crafted to frustrate pre-enforcement judicial review, authorizing such review risks unleashing one genie. Yet refusing to authorize such review will effectively unleash another.

Via Law http://www.rssmix.com/

[Jonathan H. Adler] The Firearms Policy Coalition Targets S.B. 8 on the Merits

[An amicus brief in Whole Women's Health v. Jackson warns of how S.B. 8's structure could be used to target other constitutional rights.]

In a bit of strange-bedfellows briefing, Erik Jaffe has filed a merits brief for the Firearms Policy Coalition in Whole Women's Heath v. Jackson on the side of the petitioners. As with the FPC's amicus brief supporting certiorari, this brief warns that barring pre-enforcement litigation against S.B. 8 could threaten other constitutional rights, as other states might enact similarly structured laws to that limit gun possession, political speech, or other constitutional rights.

From the beginning of the merits brief:

This case in its current posture is not about any debate over the existence or scope of any constitutional right to abortion. Indeed, Amicus takes no position on such questions, which are before this Court in other cases. Rather, this case is about how far a State may go in deterring the exercise of any and all individual constitutional rights, as such rights are determined by this Court's cases. Texas's novel scheme for infringing upon and chilling the exercise of the right to abortion under this Court's Roe and Casey decisions, if allowed to stand, could and would just as easily be applied to other constitutional rights. That result is wholly anathema to our constitutional scheme, regardless what one thinks of abortion or, indeed, of any other hotly debated constitutional right, such as the right to keep and bear arms.

1. Laws that deter or chill the exercise of constitutional rights violate those rights. Such deterrence or chill constitutes a present harm for which litigants can seek present redress without having to absorb the tremendous costs and risks of putting their heads on the proverbial chopping block by violating those laws and hoping for eventual vindication. Even where the risk derives from prospective litigation initiated by private parties invoking state law, such risks are still the product of state action in adopting and implementing the law. Whether the relevant state actors are the "deputized" potential plaintiffs and/or the court officials and jurists that wield the power of government at every stage of the litigation process, the chilling of protected conduct is the consequence of invoking state power to such ends, wholly apart from the outcome in any particular case. Indeed, the Texas law is designed precisely to have that effect, biasing the playing field in a manner that likely violates due process, the right to petition, and various other provisions of the Constitution wholly apart from its restriction on abortion. In such circumstances, there should be no serious barrier to enjoining any and all state actors or agents who facilitate or play a role in such a farce.

2. If Texas's scheme for postponing or evading federal judicial review is successful here, it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights. New York is already experimenting with private enforcement of anti-gun laws and will no doubt gladly incorporate the lessons of this case to insulate its future efforts to suppress the right to keep and bear arms. Other States will not be far behind. Indeed, a private bounty scheme could easily be modified to target persons who marry someone of the "wrong" sex or color, criticize the government, refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues, or engage in any other protected but disfavored conduct. And, if Texas's avoidance of pre-enforcement review succeeds, there is no reason to think the deterring penalties couldn't be made even more draconian. The precedent this law sets as a model for deterring the exercise of any and all rights amply illustrates why it is impermissible.

3. There are a variety of paths for allowing a preenforcement challenge to proceed in this case. The simplest path is the one suggested by petitioners – a suit against those state employees and officials most instrumental in giving force and effect to the threat Texas levels against the exercise or facilitation of federal constitutional rights. Any concerns with ripeness are misplaced given that the imminent threat of litigation, even if not the specific litigants, is palpable and already having an immediate deterrent effect. That litigants have yet to exercise their delegated authority to sue under this scheme makes no more difference than if a prosecutor had yet exercised his or her authority to bring charges under a facially unconstitutional statute.

Alternatively, this Court could recognize the option of a suit against a defendant class of all persons empowered to act under the Texas law. If Texas is going to delegate the government function of enforcing the law to its residents, then those residents should also be subject to collective suit as the agents or functional contractors of the State. Finally, if this Court views any of its precedents as a barrier to suit here, the solution is simple: expand the court-created work-around in Ex parte Young or just overrule Hans v. Louisiana to allow direct suit by a State's citizens against a State that "make[s] or enforce[s]" laws violating the privileges or immunities of those within their State. Such cases strayed from the text, structure, and logic of the Constitution and their errors should not be compounded by driving the train of misdirected precedent off the cliff proposed by Texas.

It's an aggressive brief, but one that makes some important points.

Via Law http://www.rssmix.com/

[Eugene Volokh] Guns, Background Checks, Administrative Law, and the Sixth Circuit Michigan Case

The Sixth Circuit is considering a very interesting gun case; unfortunately, I haven't been following it closely, largely because it's a technical statutory and regulatory case rather than a Second Amendment case—but Prof. Robert Leider (George Mason), who guest-blogged here on a different subject a few months ago, has been, and kindly offered this analysis:

In gun control debates, the Second Amendment usually takes center stage. But more mundane questions of statutory interpretation and administrative law can have more impact on gun owners.

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit heard oral argument in one such case, Gun Owners of America, Inc. v. Department of Justice. The appeal relates to a March 3, 2020 declaration by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) that Michigan's concealed pistol license holders are no longer exempt from the national instant background check before the sale of a firearm because the Michigan State Police do not adequately research previous criminal convictions to determine whether a license applicant is prohibited from possessing a firearm. (ATF also undertook a similar action against Alabama pistol permit holders.)

Under the Brady Handgun Violence Protection Act, a federal firearms licensee (e.g., a gun store) must initiate a background check through the National Instant Check System before transferring a firearm. The law contains some exceptions, the most important of which is that a licensee may transfer a firearm to a person who has a permit that "was issued not more than 5 years earlier by the State in which the transfer is to take place" if that permit "allows such other person to possess or acquire a firearm" and "the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the information available to such official does not indicate that possession of a firearm by such other person would be in violation of law."

Traditionally, ATF has declared whether state permits qualify as instant check alternatives by publishing a "Permanent Brady Permit Chart" online and in a "Public Safety Advisory" to a state's federal firearm licensees. In regulating through these informal mechanisms, ATF is doing one of two things, and both are procedurally problematic under the Administrative Procedure Act.

The first possibility is that despite ATF's portrayal of the letters and permit charts as binding, they actually constitute non-binding sub-regulatory guidance from ATF to Federal Firearm Licensees. If that is the case, Michigan gun stores could just ignore ATF's letter and continue accepting Michigan concealed pistol licensees as alternatives if they were certain that the licenses met the requirements of the Brady Act.

The second possibility—what ATF is likely doing—is issuing binding rules (or conducting binding adjudication) without public notice and comment and without the opportunity of affected stakeholders to participate. ATF's letter, which announces "an important change to the procedure [federal firearms licensees] must follow to comply with the Brady [law]," suggests that when ATF determines that a permit does not qualify, ATF considers its determination as legally binding. If so, ATF's determination is "one by which rights or obligations have been determined, or from which legal consequences will flow."

Yet, before making changes to the Brady Permit Chart, ATF does not engage in notice and comment, nor does it engage in adjudication in which federal firearms licensees and permit holders—the affected stakeholders—may participate. Regardless of the merits of ATF's actions, ATF is flouting the Administrative Procedure Act, and I was surprised that the Sixth Circuit panel did not press the government on this issue.

Two other major issues came up during oral argument that deserve further comment.

Standing: Why ATF's Actions Have Significant Real-World Impact

The Sixth Circuit is apparently struggling with whether the plaintiffs have standing under Article III. Although the federal government has revoked the federal legal effect of their state-issued firearm licenses, the plaintiffs have another ready alternative to purchase firearms by submitting to the federal instant check system. The government contends that submission to the instant check does not create sufficient real-world injury to constitute injury-in-fact.

Here, the plaintiffs have unnecessarily convoluted the standing question by not articulating to the court the practical significance of ATF's revocation. The use of a license as a substitute for the instant background check confers two important benefits upon license holders. First, it prevents the possibility that a gun purchaser will face significant delays in acquiring a firearm. About 10% of "instant" checks are not actually instant, and just under 1% take longer than three business days to resolve. Once a check is initiated, federal law permits the firearm to be transferred after three business days have elapsed. But that means individuals could still face delays of up to five days before they can take possession of their firearm. Those delays may not be a significant burden if the gun store is local. But if a person is traveling a substantial distance to a gun store or gun show, that delay could require a second, long trip to retrieve the firearm. When individuals seek to purchase a firearm, having a permit removes all uncertainty about the transaction being delayed.

Second, the permit allows individuals to engage in intrastate mail-order firearm sales. In response to the assassinations of John F. Kennedy and Martin Luther King, Jr., Congress banned the interstate mail-order sale of firearms in 1968. But Congress allowed intrastate mail-order sales to continue if allowed by state law, and there has been renewed interest in intrastate mail-order sales because the coronavirus pandemic has limited access to gun stores.

In 1993, the Brady Act effectively stopped most intrastate mail-order sales because the Act required individuals to present photo identification before the gun store may initiate the instant check. When an individual has a permit exempting the person from the Brady Act's instant check requirement, however, then the Brady Act's requirement to provide photo identification at the gun store also does not apply. Instead, the purchaser may submit a Firearm Transaction Record (Form 4473) by mail along with a copy of their permit. The gun store may then transfer the firearm by mail after contacting the purchaser's local law enforcement agency and observing a lengthy waiting period. When ATF determines that a state's permit does not exempt the permit holder from the Brady law, ATF also cuts off the ability to use that permit to facilitate a mail-order sale.

Should the Court Defer to the Michigan Attorney General's Understanding of State Law?

Michigan law (§ 28.425b(6)) provides that the "department of state police shall verify" whether a person is qualified under law to receive the license by using information accessible "through the law enforcement information network and the national instant criminal background check system." When the Michigan State Police receives ambiguous criminal history records, they have refused to conduct exhaustive investigations into whether the applicant is prohibited from having a license. The refusal to conduct such investigations prompted ATF's withdrawal of concealed pistol licenses as an alternative to the instant check system. During oral argument, the panel (particularly Judge Sutton) seemed troubled that ATF was deferring to some unnamed person in the state police to authoritatively determine what Michigan law requires the state police to do when conducting a background check. He suggested asking the Michigan Attorney General for her views. In this case, however, deferring to the Attorney General's understanding of the law would be a mistake.

The Michigan Attorney General should not be viewed as a neutral, authoritative source to determine the meaning of Michigan law. The Michigan Attorney General is a strong proponent of gun control. Gun control groups seek to narrow the exceptions of the federal instant check system because of the possibility that information could grow stale between the time that the permit was issued and when a person seeks to buy a gun. In this case, the Michigan Attorney General is incentivized to opine that Michigan law does not require the state police to conduct exhaustive background checks to prevent concealed pistol licenses from being acceptable alternatives to the federal background check.

Federal courts sometimes face difficult state-law interpretive questions. But no less than in federal-law cases, a federal court's job is to interpret state law, not to try to delegate its task to a state executive official. That is particularly true in this case, in which the Attorney General would not be a neutral arbiter of state law. If the panel insists on having the state interpret its own laws, the more appropriate course of action would be to certify the question to the Michigan Supreme Court.

More broadly, this case raises difficult questions concerning what properly constitutes "the law of the State." The federal Gun Control Act exempts state permits if "the law of the State" requires an adequate background check. What is the "law of the State"? The statute? The statute as implemented by binding executive regulations? Or does the real-world practice of state officials constitute "the law of the State," even if that practice violates state statutes?

Here, I think the statutes should have primacy over executive practice. The plain statutory text of Michigan law indicates its concealed pistol licenses should qualify as alternatives to the national instant check system. Although executive agencies may engage in unlawful behavior when they implement the law, neither they, nor the Attorney General, has the power to rewrite the law passed by the legislature. And the Brady Act contains no language disqualifying all state permits just because some licensing official implements the law in a faulty manner.

Via Law http://www.rssmix.com/

[David Bernstein] The Nonsensical "Asian American" Classification

[It makes no sense to treat people with such a wide range of ancestries as a monolithic group.]

Kao Lee Yang, a Hmong American neuroscience PhD student, was recently nominated for a prestigious fellowship for students who are members of "groups historically excluded from and underrepresented in science." The fellowship committee determined that as an Asian American, Yang was not from an "underrepresented" group. The committee therefore refused to even consider her application.

Yang took to Twitter to vent: "While some Asian Americans are academically successful, others like the Hmong are underrepresented in STEM and academia in general… name me just one Hmong American woman you know who is a neuroscientist. I would love to connect with her if she is out there." She added, "I am an example of the consequences resulting from the continued practice of grouping people with East/Southeast/South Asian heritages underneath the 'Asian American' umbrella."

Yang blamed her predicament on the "model minority myth."  Her ire would have been better targeted at the federal Department of Education. For over forty years, its Office of Civil Rights has required educational institutions to collect and report demographic data about "Asian Americans," with no differentiation among the many national-origin groups. The educational establishment, in turn, has grown used to treating Asian Americans as a uniform racial group.

Of course, one can object that no minorities should be given special consideration for fellowship. Or that only African Americans should be given such consideration, but not groups composed mostly of post-1965 immigrants and their descendants. But it's pretty hard to argue that an Argentine American of Italian descent should be eligible for a minority fellowship because she is "Hispanic," but a Hmong American should not because she is "Asian."

You can read more about how our modern racial and ethnic classifications developed in my recently published article, The Modern American Law of Race, or you can wait for my book, Classified: The Untold Story of Racial Classifications in America, forthcoming July 2021.

Via Law http://www.rssmix.com/