In spring 2010 I was a visiting professor at NYU Law School. The law school put me up for the semester in one of the townhouses they own on Washington Mews, which was occupied half of each year by an eminent member of the faculty who was only at NYU in the fall semesters. (This eminent faculty member has sadly since passed away.) The place was furnished beautifully with the faculty member’s possessions and I was told they had cleared part of a closet and one dresser for me to use, with the rest of the closets and cabinets containing the occupant’s possessions. I never had any communication with the home’s permanent occupant, either at the time or afterwards. The powers that be also explained that some work was being done on the place and there would be workmen there until right before the day I moved in.

The day came, I moved in, and it was kind of a New York dream. The townhouses on the various Mews in Manhattan are special, magical places that ordinary mortals usually cannot aspire to occupy, and this specific place was elegant and beautiful. I entered the house that first day, ascended to the second floor which was the home’s main level, went into the bedroom, and started putting my stuff away.

As I was opening the drawers of the little dresser assigned for me to use and depositing my clothes, I came upon a large-ish opaque plastic bag. It was the kind of heavy plastic bag that has a yarn drawstring on one end and that I associate with buying shoes. I opened the drawstring on the bag and there inside was ... a sizable green bong.

Some context is called for here. This was before the sea change that has made pot legal in many states and either legal or de facto permitted under federal law, so pot still felt low-key illicit. Equally relevant, this was not an area of particular expertise for me. I have never used any kind of controlled substances including pot (I know, I know) and I believe this was the first time I had ever actually touched a bong. I wasn’t scandalized or anything, but I did have that immediate “Well what am I supposed to do now?” reaction.

Because here was the problem. I did not know whether this belonged to the eminent faculty member who lived in the house or to the workmen who had been on site recently. My mind flipped through various options:

- I could leave the bong where I found it. But if it did NOT belong to the eminent faculty member and they found it upon their return, they would think it belonged to me and that I had left drug paraphernalia in their home. Not good.

- I could turn it into NYU. But if it DID belong to the eminent faculty member then I would be creating an issue for them. Also not good. And I did not want to take a chance of causing trouble for no reason for someone who had been working on the place.

- I could throw it away. If it belonged to a worker then no one would miss it. And if it belonged to the eminent faculty member then they would probably have a moment after returning home wondering where their bong was but then (I hoped) shrug and get another one. They almost certainly would not come to me inquiring after their missing pot smoker.

So that’s what I did. I took the thing in its opaque plastic bag with the yarn drawstring, walked out the front door, found the nearest dumpster, and tossed it in.

I never heard another word about this device, of course. But I have always wondered whether one of the most eminent members of the legal academy returned home that summer and thought “Did that MF’er Tobias Wolff steal my bong?!”

The core question in the case was whether treatment of a patient by a licensed practitioner that takes the form of talking constitutes protected speech, or whether regulation of a specific form of such treatment constitutes the regulation of a particular viewpoint. Justices Kagan and Sotomayor, whom I hold in the highest regard, fell into serious error when they concluded the answer is yes.

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Colorado and every other state of which I am aware that has imposed bans on the abusive practice of conversion therapy have only regulated licensed care providers. They are not regulating what ministers can say to their parishioners or what ordinary people can say to each other. They are regulating care providers.

States regulate the standards of care for medical professionals, therapists and licensed counselors in all kinds of ways. You would not want it otherwise. It is what keeps charlatans and extremists from getting a license that says they are certified by the state to provide care that is approved by their professional community and then using that imprimatur of professional authority to engage in reckless behavior or quackery that inflicts harm. A licensed care provider exercises a public trust.

Equally important, when a licensed care provider treats a patient or client, they are not a street-corner speaker standing on a soapbox and engaging in their own expression. They are professionals who are required to adhere to a standard of care. If a cardiac specialist prescribed a patient suffering from congestive heart failure the “medicine” of smoking two packs of cigarettes a day, it would be insane to say that the provider has some constitutional right to their opinion in that situation.

The question in this case was whether a licensed provider whose method of care wholly involves talking to clients rather than prescribing medicine or performing surgery is any different. The answer should have been no. Colorado and the many other states that have banned conversion therapy were not regulating viewpoints in a debate. They were prohibiting licensed practitioners from doing the functional equivalent of prescribing two packs of cigarettes to someone in congestive heart failure.

Under these laws, licensed care providers remain as free as any other citizen to engage in their own expression on their own time. They can write essays and social media posts about how much they disapprove of gay, lesbian, bisexual and trans identity. They can urge their professional associations to change the standard of care. They can sit across from Isaiah Martin and try to create viral moments. None of that constitutes the provision of care to a patient or client as a licensed professional.

Justice Kagan wrote in her concurring opinion that this ruling also protects therapists who counsel their LGBTQ clients in an affirming way. Yes, that’s true. But any state that attempted to ban licensed providers from offering supportive or affirming talk therapy to LGBTQ people would face all kinds of other problems and I would fight those fights when and if they became necessary. The First Amendment is not the tool I want to be using in that fight.

The Court has already made it possible for states to prevent young trans people from getting the medical care they need. Trans kids are already being devastated in hostile states. The possibility that those kids will at least have talk therapy available to them is no good answer to the unleashing of conversion therapy by licensed practitioners on vulnerable minors.

I write and teach about the First Amendment and I litigate First Amendment cases. I am often the person who needs to stand up and say that a ruling protecting the speech rights of someone with truly vile views is correct and important because that ruling will also protect the speech rights of the rest of us.

This is not that.

This decision is a category mistake, another in a growing line of First Amendment cases that make the serious error of saying that any commercial or professional interaction between two humans that involves the use of words is protected by the Speech Clause from any form of reasonable regulation.

The Court did not issue a ruling on the constitutionality of the Colorado statute. That question remains for the lower courts to determine. I will lend my efforts to that fight in whatever way I can, as I will in the many other lawsuits that will no doubt start happening in other states that have banned the abusive practice of conversion therapy. The fight continues and I will be part of that fight. But this is an awful, awful ruling.

For many, Whipple has just been a way station on a trafficking route that will bring them to the Dilley incarceration facility in South Texas where conditions are even worse. Liam Conejo Ramos, the little boy in the blue bunny hat whom federal immigration agents used as bait to seize his father, was trafficked through Whipple on his way to Dilley. When about a hundred members of the clergy were arrested at the Minneapolis-St. Paul Airport for engaging in peaceful protest of ICE abuses they chose their location in part because of its proximity to Whipple and the trafficking run through that facility.

This is not the first time the land around the Whipple Building has been a site of trafficking, violations of human rights, and assaults on the concept of citizenship. Almost two hundred years ago, two Black Americans were illegally trafficked to a U.S. military post located on that same stretch of the Mississippi Riverfront. The garrison was called Fort Snelling, now referred to as Historic Fort Snelling, and it gave that territory in Hennepin County the name it still bears. This aerial view shows both properties today: the Whipple Federal Building on the left side of the frame and Historic Fort Snelling on the right:

The Black married couple who were trafficked and abused on this land, nearly two centuries before the arrival of ICE, launched a fight for their freedom that changed the United States forever. Their names were Dred and Harriet Scott.

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The Missouri Compromise, Fort Snelling, and the Trafficking of Black Americans

The original Fort Snelling was built by the U.S. Army between 1819 and 1825. Located at the confluence of the Mississippi and Minnesota Rivers on land long occupied by the Dakota peoples, the garrison was encompassed within what the U.S. then called the Wisconsin Territory. Federal law had prohibited the practice of enslavement in that territory from the early days of the Republic and that prohibition continued under the Missouri Compromise of 1820, one of the most consequential in the series of obscene bargains Congress struck over the atrocity of slavery. The 1820 law admitted Missouri to the Union as an enslaver state, admitted Maine as a free state, and banned the practice of enslavement in U.S. territory above the 36°30’ latitude outside Missouri itself. The Wisconsin Territory included what are now the States of Iowa, Wisconsin and Minnesota along with parts of the Dakotas. (Image below from the University of Wisconsin Milwaukee libraries.) Following the 1820 compromise, enacted shortly after construction of Fort Snelling began, federal law dictated that the military base must be free from enslavement.

The practice of enslavement was relentless and metastatic during the first eight decades of the Republic, however, and even a flat federal prohibition on slavery was not enough to prevent the trafficking of Black Americans to Fort Snelling. The relevant language of the Missouri Compromise statute read as follows:

And be it further enacted. That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of [Missouri], slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or service is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid.

That language creating a caveat for criminal punishment still exists in the Thirteenth Amendment, sad to say, and the provision for the return of “fugitives” reflects a conflict between enslaver states and free states that was written into the original Constitution. But an even more common slavery practice contaminated Fort Snelling from the beginning: the trafficking of Black Americans to free territory on what the enslavers claimed was a transient basis.

When enslavers traveled around the United States they sometimes forced people held in bondage to accompany them as personal servants. When a free state was the travel destination an enslaver would often traffic the individual there nonetheless, introducing slavery on a transient basis into the free jurisdiction. These were not short sojourns. “Transient” often meant a period of years, as was true for both Dred and Harriett Scott.

This aggressive trafficking practice gave rise to one of the major interstate legal disputes of the enslavement period: whether a trafficked individual who was able to secure legal assistance could sue to be declared free after being brought into a free jurisdiction by an enslaver. (I have written about that issue in some depth here.) A noted 1772 ruling of the English Court of King’s Bench, Somerset v. Stewart, had established the principle that the legal status of enslavement cannot be enforced in a free jurisdiction, meaning a person can sue for freedom when trafficked into a free state. By the 1830s courts in Massachusetts, Ohio and even the enslaver state of Louisiana had held the same, though the issue remained highly contested.

It was this practice of trafficking Black Americans into free jurisdictions that gave rise to the dispute that became the Supreme Court case of Dred Scott v. Sandford. One of the places Dred Scott and Harriett Robinson Scott were trafficked was Fort Snelling — the current site of the Whipple Federal Building — which was free land by federal law.

Dred and Harriett Scott at Fort Snelling

Dred Scott was born into circumstances of enslavement in Southampton County, Virginia in about 1799. As a young adult he was trafficked to Alabama to work on an agricultural forced labor camp and then trafficked again some years later to St. Louis, Missouri. A surgeon and U.S. Army officer named John Emerson became Dred Scott’s enslaver in Missouri and forced Scott to move repeatedly, including to a military fort in the free state of Illinois and then to Fort Snelling in 1837.

Harriett Robinson was also born into circumstances of enslavement in Virginia, around the year 1820. Much less is known about her early life. At a certain point a man named Major Lawrence Taliaferro became her enslaver. Taliaferro was a senior federal official in Indian affairs and trafficked Ms. Robinson to Fort Snelling some time between the mid 1820s and early 1830s. She and Dred Scott met at Fort Snelling, married there in 1836 or 1837 and had four children, two of whom died in infancy. John Emerson became enslaver to both adults after they married and then to their children. He trafficked the family to Louisiana for a brief time, back to Fort Snelling, and then to St. Louis, Missouri in 1840. The family’s circumstances and future became less certain when Emerson died in 1843. After finding lawyers to assist them, the Scotts began a quest for freedom that led them to bring a state court lawsuit in 1846 and then a federal lawsuit in 1853.

The Dred Scott Case

Dred and Harriett Scott argued that the decision of their enslavers to traffic them to the free jurisdictions of Illinois and the Wisconsin Territory entitled them to be declared free, both under the law of Missouri where they were still being held in bondage when they brought their lawsuits and by operation of the Missouri Compromise of 1820. They litigated their claims for almost fifteen years and ultimately ended in defeat, first before the Missouri Supreme Court and then in the Supreme Court of the United States.

The 1857 ruling of the U.S. Supreme Court is infamous for its attempt to write a permanent status of dehumanization and disqualification from citizenship for Black Americans into the Constitution. Dred Scott v. Sandford invented a constitutional right for enslavers to traffic people for labor and sexual exploitation anywhere in the United States, overriding prohibitions against enslavement by free States and declaring the Missouri Compromise of 1820 invalid. In the process, it declared that our Constitution was founded on a principle of White Supremacy that held Black Americans “so far inferior that they had no rights which the white man was bound to respect.” Black people could never be made citizens of the United States or any State under the Constitution that Chief Justice Roger Taney narrated.

Dred Scott left no path forward for Black Americans to secure basic human rights or legal protection, no possibility of a political resolution between enslaver States and free States attempting to contain the practice of slavery, and no alternative to White Supremacy as the defining principle of our Constitution. The decision contributed significantly to the descent into open hostilities and war that soon followed. When the Civil War ended and Congress and the States crafted the constitutional amendments that would fundamentally change the formal parameters of our system of government, the enormities of Dred Scott hovered over all those reconstruction deliberations, as historian Eric Foner has put it.

The trafficking and abuse of Dred Scott and Harriet Robinson Scott at Fort Snelling was the human origin of that judicial betrayal. The Scott family stood for the millions of Black Americans seeking to liberate themselves from enslavers. Today the Visitor’s Center at Fort Snelling makes their story and the morally diseased strain of U.S. history in which it unfolded a central part of the account of that land and the continuing importance of the site. The same land along the banks of the Mississippi River where the Whipple Building operates today.

The Struggle for Multiracial Democracy

Prominent thought leaders have drawn the comparison between the abuse and trafficking ICE is perpetrating today and the roots of enslavement that still define our Nation’s story: the raiding parties of masked federal brutes breaking into homes, schools and churches like twenty-first century slave catchers; the schematics for ICE concentration camps in densely packed warehouse buildings that evoke land-bound versions of the death ships that trafficked men and women across the sea from Africa. By targeting Minneapolis / St. Paul and making the Whipple Building a central component of their trafficking infrastructure, the Regime made the analogy perversely literal.

Less than a mile’s walk from the stone footings of Historic Fort Snelling, that storied nineteenth century federal site of trafficking and abuse, the Whipple Building now serves as a twenty-first century reverberation of an all-too-American infamy. The fight to stop the abuses of ICE, repudiate the brutality of White Supremacy and defend the rule of law is unfolding on ground long since consecrated by struggle.

I doubt the members of the Regime who chose to target Minneapolis had any understanding of the role Fort Snelling played in the fight for multiracial democracy in the United States two centuries before or the connection they would forge to that history by choosing the Whipple Building as a part of their machinery of trafficking and abuse. Historical rhymes are often unintentional and self-assembling. But forge a connection they have.

The parallels critics have drawn between the abuses of ICE and enslavement practices are not a mere rhetorical flourish. They are a description of the very ground on which these new traffickers are perpetrating their abuse.

Here are the main takeaways:

• The War Powers Act makes it clear this war is illegal. The law sets forth the three grounds on which a President can introduce U.S. armed forces into hostilities. Two involve authorization by Congress and one involves responding to an attack on the United States. None is satisfied here.

• At one point the Regime tried to float an assertion that the War Powers Act affirmatively authorizes a President to wage war for 60 or 90 days at his sole discretion before he must ask Congress for authorization. That is flat wrong, the opposite of what the statute says, and a lie.

• When a President deploys armed forces into hostilities in a foreign theater, Congress can pass a concurrent resolution requiring that “such forces shall be removed by the President.” The minority party can force a vote on this kind of War Powers Resolution.

• The War Powers Act also imposes serious notification requirements on a President, demanding that Congress be kept apprised of uses of force and receive reports on strict timetables.

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The War Powers Act of 1973

In 1973, Congress enacted a law over the veto of President Richard Nixon called the War Powers Act. (The law is also known as the War Powers Resolution and that usage is more common but I will use War Powers Act to avoid confusion with the concurrent resolution that Congress can enact pursuant to that law, which I discuss below.) The War Powers Act came as a response to grave concerns in Congress that the Executive Branch was claiming too much authority to unilaterally deploy U.S. military forces abroad, concerns that came to a head when Richard Nixon expanded the theater of war in the Vietnam War by conducting a secret bombing campaign in Cambodia without seeking authorization or even informing Congress. In response, the Act effectuated a major shift in legal authority in the use of military force. I describe the law’s major components in more detail below. First, however, a pragmatic observation.

The War Powers Act is the law. It is a major expression of congressional authority enacted over a presidential veto. But it is not enforceable through a lawsuit and it does not impose criminal penalties if it is violated. Rather, the War Powers Act is about defining the boundaries on a President’s authority. Its primary goal is to impose political, popular and hortatory constraints. The War Powers Act brands a President as a lawbreaker if he engages in unauthorized or prohibited uses of military force, laying the foundation for political repercussions including an impeachment inquiry and framing for the public a clear message about the lawless nature of a military campaign. The law is not an invitation to federal judges to stop an illegal war; they cannot. It is an assertion of congressional authority that seeks to strengthen a political enforcement framework.

The War Powers Act has several components. First, it imposes constraints on the authority of a President to use military force. Second, it sets forth a series of requirements for a President to give Congress notification and keep it informed when using military force abroad. Third, it creates a process by which Congress can seek to terminate the use of military force. Let’s take each in turn.

Presidential Authority and the Use of Force

Under Article II of the Constitution a President is the commander in chief of U.S. armed forces (“the Army and Navy of the United States” as the Constitution puts it), meaning he is the senior command authority for the military. Under Article I of the Constitution, however, Congress has power over military policy including when the United States goes to war and how its military forces are governed, regulated and outfitted. To give some sense for the footprint each branch of government has over military affairs in the text of the Constitution: the provisions setting forth Congress’s control over military policy occupy six of the eighteen clauses in Section VIII of Article I where Congress’s primary powers are set forth; the assignment to the President of the commander in chief role occupies a single clause.

In its first provision, the War Powers Act recites these constitutional authorities and then establishes the following policy for the United States of America concerning the use of military force by a President:

“(c) Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The Act thus clarifies that a President can only lawfully introduce U.S. forces into hostilities where Congress has declared war, enacted a specific authorization for the use of force, or when the U.S. is attacked.

A subsequent provision of the Act sets a more specific limitation. When a President launches an attack with U.S. armed forces, he or she is required to notify Congress within two days and provide a report offering a rationale. The Regime has now complied with that requirement. Once that notification is either sent or required to be sent, it starts a 60 to 90-day clock on the military action. After that period runs, the statute orders the President to terminate the military action unless Congress has provided statutory authorization or extended the deadline. Here is the provision, edited a bit for readability:

“(b) Termination of use of United States Armed Forces; exceptions; extension period

“Within sixty calendar days after a report is submitted or is required to be submitted pursuant to [the notification provision], whichever is earlier, the President shall terminate any use of United States Armed Forces … unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”

Here is what all this means for the war the Regime has just started with Iran:

• Congress has not declared war.

• Congress has not enacted a specific statutory authorization for the use of force in this conflict. In the past, Presidents have relied on the 2001 Authorization for the Use of Military Force enacted after 9/11 to authorize broad-ranging military responses to those attacks. That law is still on the books but the Regime has not attempted to rely on it.

• This war was not a response to an attack by Iran.

That means launching this war was illegal, full stop. The Regime has made some vague suggestions that a President has inherent power under Article II of the Constitution to start a war like this one. That is false. What is more:

• Now that this unauthorized war is underway, the War Powers Act orders that the President “shall terminate any use of United States Armed Forces” within sixty days.

• The Regime can extend that period to ninety days but only for reasons of “unavoidable military necessity respecting the safety of United States Armed Forces.” They presumably will do that, whether or not it is justified, if Congress has taken no other action by that time.

• The command in the War Powers Act that the President “terminate any use of United States Armed Forces” is a separate and independent restriction. Even if the Regime tries to claim that this war was somehow justified on “self defense” grounds, the Act orders them to terminate the use of the armed forces unless Congress provides affirmative statutory authorization.

Presidents sometimes push on the interpretation of the War Powers Act to try to circumvent its requirements. For example, in 2011 President Obama took a highly contested position that he could order a military intervention in Libya to protect civilians in danger of being slaughtered by the forces of Muammar Gaddafi without first seeking statutory authorization from Congress because (he argued) the scope of the force deployment did not rise to the level of “hostilities” under the War Powers Act. President Obama later acknowledged that choosing not to seek congressional authorization was perhaps the worst mistake of his presidency.

The current Regime has attempted to float a convoluted explanation that launching this war was “offensively being proactively defensive” (or something) because of an anticipated attack on Iran by Israel. We shall see whether they try to make a case to Congress that this war was justified under the provision of the War Powers Act involving responding to an attack, but frankly that is difficult to imagine. And again, even if they do, the 60- to 90-day clock would still be running.

Concurrent Congressional Resolution

In addition to all the above, the War Powers Act gives Congress the power to order the removal of U.S. armed forces from a foreign theater through a concurrent resolution, often described as a War Powers Resolution. When the President is deploying the military without a declaration of war or express statutory authorization, Congress can act immediately to direct him to stop. Section 1544 of the Act provides:

(c) Concurrent resolution for removal by President of United States Armed Forces

Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

The statute designates resolutions under this provision as special and privileged, meaning they cannot get bottled up in committee or killed by the Speaker of the House or the Senate Majority Leader. When a concurrent resolution under the Act is proposed in a timely fashion, the Armed Services Committees have a fixed time of no more than 24 days to consider and debate its contents and then the Act requires that the proposed resolution “shall become the pending business of the House in question … and shall be voted on within three calendar days thereafter” unless Congress affirmatively votes otherwise.

A War Powers Resolution is legislation. If both Houses of Congress enact the concurrent resolution it still has to go to the President for signature before it takes effect and the President can choose to veto it. Congress would then need to override that veto by a 2/3 vote in both Houses.

You might ask yourself why in Heaven’s name the War Powers Act gives a President an opportunity to veto a resolution aimed at constraining his illegal use of the military. As originally drafted, it did not. The original version of the law empowered Congress to pass a concurrent resolution ordering the President to withdraw an unauthorized deployment of the armed forces with no opportunity for a veto. Why did that change?

The answer relates to the separation of powers. The original concurrent resolution provision raised questions under Article I, Section 7 of the Constitution, which requires every “bill” to “be presented to the President of the United States” for signature or veto. The War Powers Act itself satisfied that requirement, of course. The question was whether Congress could enact legislation that reserves to itself this kind of power to restrain the executive without independently satisfying the requirement of “presentment.” For a long time, including when the War Powers Act was enacted, that question remained unsettled. The Court provided an answer in a major decision in 1983 called INS v. Chadha in which it held that Congress cannot perform any legislative act without satisfying the bicameralism and presentment requirements of Article I, even when it assigns itself that authority in a validly enacted law. The Act was therefore amended to require a War Powers Resolution to satisfy the requirements of normal legislation.

Here is what all this means right now:

• Unless Congress affirmatively authorizes this illegal war with Iran, the Regime needs to withdraw its forces by about June 1.

• At any time between now and then, Congress can pass a concurrent resolution ordering the Regime to withdraw its forces. That resolution can include a specific timetable and other conditions or requirements.

• Mr. T***p would need to sign that resolution for it to become law. If he vetoed it, 2/3 of each House of Congress would have to enact it over his veto. If they could not, the resolution would have no legal force.

• The political impact of a concurrent resolution ordering the withdrawal of U.S. forces from Iran would be immense, even if it met with a veto that Congress could not override.

• Without a declaration of war or affirmative statutory authorization by Congress this illegal war needs to end with the withdrawal of U.S. forces by about June 1. That deadline applies even without a War Powers Resolution by Congress.

Summing Up

A lawless President at the head of a lawless Executive Branch is an emergency for the United States and the World. When Congress abdicates its duty to restrain a lawless President the danger multiplies. Nowhere is that danger more acute than in the use of military force.

In one of the most profound and consequential assertions of its institutional authority in the history of the United States, Congress enacted the War Powers Act of 1973 over a presidential veto and set durable, strict, mandatory limitations on a President’s use of the Armed Forces without congressional authorization. This Regime’s unauthorized and illegal war with Iran may be the most important test of that monumental statute since its enactment.

Since the start of this Regime thirteen and a half months ago, Congress has mostly allowed the federal courts to shoulder the burden of holding the Executive in check. The Legislative Branch cannot shirk its responsibility here. Only Congress has the power to enforce the War Powers Act. Only a political repudiation can end an illegal war.

Let’s start by explaining what this case was about and laying out some basic doctrine.

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The Dispute in USPS v. Konan

Because of the early stage of this lawsuit when it went up on appeal, all we know about the facts comes from the allegations in the plaintiff’s complaint which the Supreme Court had to assume were true in its analysis. Konan was a case brought by a Texas woman named Lebene Konan who owns two houses in a neighborhood right by DFW Airport where she rents rooms to tenants and sometimes lives herself. Konan explained to her local postal workers how she wanted mail to be delivered to the addresses given this arrangement. She alleges they reacted to her with hostility because she is a Black woman and stopped delivering her mail altogether, intentionally depriving her of delivery at these addresses and even at another address when they found out she owned that place as well. Konan sued over this alleged discrimination, seeking compensatory damages against certain individual postal workers and the USPS itself.

Konan’s decision to seek monetary damages resulted in some roadblocks. A request for money damages is a difficult form of relief to request in a lawsuit against the U.S. Government or its agents.

Suing Federal Agents

When it comes to suing federal agents—suing them individually—there are very few private rights of action that permit injured people to pursue money damages at all. This fact can be surprising and counterintuitive. Many people do not realize this thing called a private right of action (or “cause of action”) is a requirement for suing. When someone injures you, the instinct is that you can sue for damages but that is not always the case. Under federal law, in particular, there must almost always be some statute that authorizes a cause of action for damages.

Even for those who understand that requirement, it is easy to assume there must surely be a statute authorizing a cause of action against federal agents who violate your rights, just like there is for suits against state and local agents in 42 U.S.C. § 1983. But Section 1983 does not apply to federal agents and, believe it or not, there is no general-purpose statute authorizing suits for damages against federal officials. That is one reason you are not seeing a lot of lawsuits being filed against individual ICE agents who commit acts of lawless violence. (As a side note, enacting a version of §1983 for suits against federal agents should be a high priority in rule-of-law reforms.)

In her lawsuit, Ms. Konan tried to use a pair of federal statutes relating to race discrimination and conspiracy in order to sue the postal workers she accused of targeting her. The federal court of appeals found those statutes did not apply to her situation and the Supreme Court did not grant review on that issue.

Suing the U.S. Government

When it comes to suing the U.S. Government itself there is a weightier obstacle: sovereign immunity. Since the beginning of the Republic, for good or ill, it has been clearly established that the United States and its agencies can only be sued when the U.S. Government consents to the lawsuit. The idea traces back to the sovereign prerogative of British monarchs, which gives some reason to question its propriety in a representative democracy, but it is now usually explained in pragmatic terms through some combination of sovereign dignitary interests (whatever that means) and a concern for protecting the public fisc from being drained by excessive damages claims. Nothing in the Constitution requires that the U.S. Government be subject to lawsuits without its consent, according to the Supreme Court, so it is only possible to sue the Government when a federal statute waives sovereign immunity and authorizes the suit.

A number of federal statutes contain waivers of this kind. The one that was relevant to Lebene Konan’s claim is the Federal Tort Claims Act. The FTCA authorizes people to sue the U.S. Government for damages when a federal agent or employee engages in harmful conduct that would be actionable as a tort under state law if the perpetrator were a private actor. (It’s a slightly convoluted statute.) In essence, if Konan could show the postal workers would have been liable to her under Texas tort law then she can recover against the U.S. government under the FTCA.

Except for one thing. The FTCA contains a long list of exemptions: situations where Congress has chosen not to waive sovereign immunity, meaning the Government still cannot be sued for damages. One of those exceptions covers all claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” This carveout is clearly intended to foreclose damages against the United States for negligent loss or miscarriage of a letter or package. The question in Konan was whether that exception also applies when postal workers intentionally refuse to deliver the mail. The majority held that it does, basing their conclusion entirely on a construction of that statutory language. As they reasoned: “Both ‘miscarriage’ and ‘loss’ of mail under the postal exception can occur as a result of the Postal Service’s intentional failure to deliver the mail.” Four dissenters led by Justice Sotomayor urged a reading of the statute that only exempted unintentional loss of the mail from suit and not willful misconduct. (I think the dissenters were right.)

What Impact Does this Ruling Have?

If you think this all sounds rather technical, you’re right. It is about a specific question on a narrow issue: when a person can sue the United States Government for monetary damages. It most certainly does not mean that any actions or policies by the U.S. Postal Service are now completely immune from constitutional review. A lawsuit for monetary damages against the U.S. Government is not one of the tools we typically use to make sure federal officials follow the law.

When the Government adopts an unconstitutional policy or engages in an unlawful pattern or practice of behavior, we ask a federal court to issue an injunction ordering the Government to stop that policy and prohibiting it from violating people’s rights. Court orders are enforceable through the contempt power and that is equally true in cases involving federal officials, a truth we are seeing play out in dramatic fashion in courts around the country.

When an individual federal agent engages in criminal conduct a responsible government will investigate the possibility of prosecuting that agent. As discussed above, the person injured by that unlawful conduct may have limited avenues for pursuing individual damages against the officer but some such avenues do exist, as do avenues for discipline within the federal government. These are the mechanisms we turn to first when the goal is to stop or prevent the Government from violating the Constitution and give individual federal agents an incentive not to break the law.

The Konan case does not touch any of those remedies. The decision is not based on any deep principle about the untouchability of the Postal Service or a brand new immunity from suit the Supreme Court decided to invent. It is about the scope of a longstanding exemption buried in a slightly obscure statute that is about making tort remedies against the U.S. Government available to injured individuals. Some Supreme Court opinions about seemingly narrow issues wind up announcing grand principles with far-reaching implications across multiple areas of law. Not this one.

Protecting Free and Fair Midterm Elections

With that landscape mapped out, let’s return to the midterms and this ruling. What impact does the Court’s decision threaten to have on free and fair elections? None.

Seeking monetary damages against the U.S. Government to compensate for an injury is not a tool we rely on to prevent unconstitutional threats to election integrity. The ability to secure damages can be very important to an individual who has been injured. But the U.S. Government has effectively limitless resources and a criminal Regime is not going to be dissuaded from attacking the integrity of our elections by the possibility that the U.S. Treasury may eventually have to pay injured people a tort judgment.

If the Regime undertakes some coordinated effort to have postal workers destroy or sequester mail-in ballots, the judicial remedy we seek will be an emergency injunction enjoining that conduct and ordering the proper treatment of ballots. That will be an urgent situation and any such judicial remedies will probably have to be coupled with a mass mobilization of peaceful protesters making clear that they will not stand for unlawful attacks on our elections. The Court’s ruling in Konan will have zero impact on any of that.

I worry about a lot of threats to the rule of law during this ongoing crisis. The Court’s misguided decision in Konan is not one of them.

1. A President has no immunity—civil or criminal—for acts committed when they were not President.

2. A President almost certainly cannot be arrested and prosecuted while they are in office. The federal courts have never directly addressed this issue but the DOJ has taken this position for half a century and it has strong support in Supreme Court caselaw speaking to the constitutional role of the Executive and the separation of powers. (Please don’t @ me about Ulysses S. Grant being briefly arrested for speeding when he was President. It is an interesting historical curiosity if true but not any kind of compelling authority here.)

3. It is a very different question whether a President could be indicted while in office and the indictment held in abeyance until they leave the presidency. There is no obvious reason why that cannot happen and some compelling reasons why it should be possible. As an example, if authorities in New York developed strong evidence that a sitting President had committed acts of CSA prior to being elected they could consider indicting him while he is still in office in anticipation of pursuing the prosecution when he exits the office.

4. Presidential pardons only reach federal crimes (”offenses against the United States”) and have no impact whatsoever on state crimes or on civil causes of action of any kind.

5. A sitting President can be sued for damages while they are in office for actions they committed while not in office. The civil suit Paula Jones brought against Bill Clinton while he was President established that proposition.

6. There are statute of limitations constraints on civil and criminal proceedings but those time periods are defined more broadly under New York law in cases involving sexual violence. As one example, there is no statute of limitations on first degree r**e in New York.

First. Government officials sometimes enjoy immunity that shields them from personal civil liability—a damages lawsuit—when they are acting in an official capacity. That is what people usually mean when they describe official immunities. Most officers have qualified immunity, meaning they can be sued for damages but only if their actions violate rights that are “clearly established” at the time they acted. The federal courts, in particular the Supreme Court, have interpreted that protection very broadly in recent years, making it difficult to hold police officers personally accountable when they violate people’s rights.

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In this context, “absolute immunity” means that an official cannot be sued for damages in a personal civil lawsuit even if they violate clearly established rights. Only certain government officials enjoy that kind of absolute immunity. A President does, judges do, prosecutors do for some purposes, and legislators do for some purposes. Police officers, FBI agents, ICE officers and other such officials most assuredly do not.

Second. That kind of official immunity almost never applies in a criminal prosecution. Judges can be prosecuted for taking bribes, as can prosecutors, with no discussion about absolute immunity. Police officers or federal agents can be prosecuted for committing murder while on duty and qualified immunity is not a part of the discussion. Official immunity, whether absolute or qualified, is designed to protect government agents from the threat of lawsuits by aggrieved individuals, not to let them get away with crimes. The criminal process with its requirement of a grand jury indictment, prosecutorial discretion and accountability in the charges they bring, and all the constitutional safeguards of criminal procedure and trial by jury are enough to protect government officials in the conduct of their duties. There is reason to worry about wholly unjustified personal lawsuits against officers but less reason to worry about wholly unjustified criminal charges.

Third. If federal prosecutors are unwilling to use federal criminal law to hold a federal officer accountable when there is good reason to believe the officer has committed a crime then state prosecutors can use state criminal law to do so. That is the conversation underway right now about whether Minnesota officials might pursue state charges against the ICE agent who killed Renee Good. That kind of prosecution raises complex issues about the relationship between states and the federal government that will require some space to unpack. To simplify some of the relevant caselaw, a state can probably prosecute a federal agent for violations of state law if, but only if, it can demonstrate that the federal agent acted in an “objectively unreasonable manner” and lacked an “honest and reasonable belief that what he did was necessary in the performance of his duty.” That is a tough standard. It certainly is not “absolute immunity” from state prosecution or anything close.

Fourth. On the subject of a personal lawsuit for damages against a federal official—the setting where qualified (not absolute) immunity would apply—it bears noting that we do not have well-established pathways for holding federal agents accountable in that way. People may be familiar with 42 U.S.C. §1983, a federal statute frequently used to hold state and local officials liable for harm they cause by violating people’s rights. That statute does not apply to federal officials. Enacting a statute that would provide a cause of action for damages against federal officials in appropriate cases is one of many rule-of-law reforms that we need.

There is a lot more to say about the difficult situation Minnesota faces with this slaughter of a person on video under circumstances that suggest criminal liability and a federal government refusing to hold its agents accountable and actively obstructing state efforts to do so. I will try to write up a more fulsome treatment of those issues in an accessible and concise essay as events continue to unfold. But JD Vance is knowingly spouting BS when he talks about this ICE officer being “absolutely immune” from any possible criminal consequences for his actions, whether those consequences come from a federal or a state prosecution.

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One long-standing exception to that proposition comes in cases involving state prosecution of federal officers. The roots of this exception date back to the early part of the 19th century. Congress has long recognized that cases brought in state court against federal officers might introduce concerns about state hostility to federal authority and it has provided for "removal" of such cases from state court to federal court at the outset of the proceedings. Professor Jonathan Nash provides an overview of this history in a recent article.

The first general-purpose federal officer removal statute was enacted during Reconstruction and is now codified at 28 U.S.C. §1442. It provides in pertinent part:

“(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending

“(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.”

Readers may recall that Mark Meadows tried to use this statute when he was being prosecuted for his role in the effort to subvert the 2020 presidential election, seeking to remove the Georgia prosecution against him into federal court. Meadows failed in that attempt because, as the U.S. Court of Appeals for the Eleventh Circuit explained, "the events giving rise to [that] criminal action were not related to Meadows’s official duties."

If state officials bring criminal charges against ICE agents for actions taken in the course of their official duties, in contrast, the case for removal into federal court under §1442(a)(1) will likely be straightforward. Even if ICE agents are charged with alleged acts that were wholly unauthorized, if those acts are perpetrated while they are on duty and purporting to act with ICE authority then they qualify as acts taken "under color of such office" for purposes of federal officer removal.

When a state prosecution is removed into federal court in this way, it remains a state prosecution. All that changes is the venue. That change in venue is important, of course, but so are its limitations. State officials will continue to prosecute the case on behalf of the state they represent — the case will not suddenly fall under the authority of a U.S. Attorney's office simply because it is being heard in federal court — and the charging party will remain the state. The case will still be (for example) State of Minnesota v. John Q. ICE Officer, even though it is being heard in federal court, and the offenses with which the defendant is being charged will remain offenses against the state.

Given the empty gesture the orange occupant of the Oval Office recently made to "pardon" the Colorado conviction of a woman found guilty of state election interference, it is easy to imagine him issuing similar "pardons" in response to a state criminal prosecution of a federal official as one among many steps he might take to try to interfere with the state proceedings. The presidential pardon power would have no authority at all in such a case, regardless of whether the case is heard in a state or a federal forum.

Article II Section II of the Constitution vests power in a President to "grant reprieves and pardons for offenses against the United States" but gives no power to grant pardons for offenses against any State. Criminal prosecutions against a federal officer under state law do not become "offenses against the United States" simply because a federal judge is the one who enters a judgment of conviction and imposes sentence. Neither does it matter that federal officer cases introduce special federal defenses. The question is not whether federal law might govern some aspects of the prosecution. That is true in every state prosecution: federal defenses under the Bill of Rights pervade state criminal proceedings. The question is what sovereign creates the law under which the defendant is being prosecuted. If the answer is a State, the presidential pardon power plays no role.

I have become moderately familiar with the constitutional jurisprudence of presidential pardons over the last ten years for reasons that are probably obvious. I am not an expert on the subject but I know the caselaw decently well. I am aware of no occasion when a President has even attempted to pardon a state criminal prosecution against a federal officer merely because the case was heard in federal court so I do not believe there is any square holding on the issues I have laid out here. But I am absolutely confident in the analysis. I do not believe it is subject to good faith dispute. Presidents cannot pardon state offenses. Neither the defendant being a federal officer nor the venue being a federal court changes that basic constitutional reality.

If and when that situation does arise and people start using cheap punchlines about the offenders’ institutions or professors to express their outrage — “What exactly are they teaching at Penn Law? What was wrong with his professors?” — I genuinely do not know how I will respond, or whether I will even try. It is one thing when an academic chooses to become an advocate for someone they should know is morally compromised. I have criticized Amy Chua at YLS for her advocacy on behalf of both JD Vance and Brett Kavanaugh, for example. But these lazy attacks on prominent institutions and their faculty as somehow being broadly responsible for the failed moral compass of their former students are unanswerable, which I guess is the point.

Elite educational institutions can stick up for themselves. They have resources and status. But this kind of cheap attack is not a trivial thing. Universities are under relentless assault right now in ways that jeopardize the entire mission of higher education. Institutions are being threatened with destruction if their faculty teach about race, gender and human rights in terms the Regime disapproves. Individual faculty are being targeted more often and more aggressively. State institutions in places like Florida and Texas are dismantling academic freedom systematically. Higher education faces an ongoing emergency. Faculty of color, female faculty, and women of color faculty in particular must manage threats, insults and doxxing as a regular part of their jobs.

In that environment, lazy attacks on universities from left-of-center voices as somehow being responsible for the depredations of their former students—not for any specific, identifiable reason but just because—contribute to an environment of cynical disdain for higher education that helps justify the existential threats those institutions face. That environment, in turn, makes attacks on individual faculty appear somehow legitimate and increases the challenge institutions face in strengthening resolve and marshaling responses.

There is plenty of legitimate criticism to levy at elite universities. Of course that is the case. I am a faculty member at one such institution and a graduate of another so it may be easy to dismiss my views as defensive self-justification. I am confident in my moral compass and in the work I do offering my students the chance to develop their own sense of professional integrity while teaching them what I know about law and the Constitution. If my response to these lazy attacks on universities is nonetheless vulnerable to dismissal because of where I work and where I studied, so be it. The argument still needs to be made.

If you find no other argument on this subject compelling, consider this. When people respond to the enormities of JD Vance by attacking the institution where he studied law, no one is happier about those attacks than JD Vance. He has made assailing higher education his brand. If he can say and do outrageous things and have people attack Yale Law School in response, he has scored a personal hat trick. How about we not give Vance exactly what he wants when he engages in his society-destroying attacks on the rule of law.

When we knew that death could not be held back, we explained to Dad what was happening and he showed he understood. I told him I was sorry I had not given him the opportunity to dance at my wedding—the last time I saw him smile—and promised him the man I married would be a worthy partner. I then encouraged Dad to draw on his lifetime of philosophical reflection and take the measure of what he was experiencing; to treat the arrival of death as an invitation to lay aside old anxieties and allow the power of his mind to range broadly in this ineffable terrain. I know that he heard and received what I offered. Only he will ever know what insights it produced.

After today, the deaths of my parents will both be one year past. For pattern-seeking, cyclically-minded creatures such as we that arbitrary marker will likely be an inflection of sorts. I do not know what that will mean for my journey. But I am grateful that my confidence in having no regrets at how I shepherded my parents through it all remains a firm foundation.

I made Spark a dinner of chicken and kibble with a little cheese tonight, ordered excellent sushi for myself, and will watch an old episode of The Expanse, which is one of my go-to TV escapes. And as I did one year ago after saying my final goodbye to my father, I will take Spark on his evening walk around our quiet little desert neighborhood. Grief requires space. Cycles can be healing.

The Libya strikes were effective in their immediate goals but the administration failed to undertake sufficient planning for the aftermath of the attacks and chaos erupted in Libya as a result. President Obama later identified this failure as his worst mistake while in office. The decision not to seek authorization from Congress exacerbated that failure, undermining the legitimacy of the humanitarian goals invoked to justify the strike and resulting in a lack of consultation and broad political investment to secure a stable or functional post-strike outcome.

U.S. Senator Mike Lee (R-Utah) who styles himself a constitutionalist and was a freshman Senator at the time levied some of the sharpest criticism, saying: “I think you cross an important threshold the minute you’ve got your military carrying out military strikes on the soil of a foreign, sovereign country” without congressional approval. “The longer it rolls on,” he continued, “the more likely it is to come to a head in the Senate.” And yet Senator Lee has already endorsed the T***p Regime’s argument that Article II of the Constitution gives a President all the power they need to carry out a strike on the soil of a foreign, sovereign country to remove and seize a head of state without congressional approval.

The unprovoked war of aggression this Regime launched on Venezuela does not enjoy any coalition support, humanitarian justification or arguable U.N. imprimatur, unlike the 2011 strikes on Libya; and the Regime has clearly engaged in no meaningful planning for the aftermath of their radical disruption of Venezuelan government and society and made no effort to build political consensus or even make the case for an urgent need to take military action. The U.S. never contemplated “running” Libya after the 2011 strikes as some kind of colonial administrator but Geriatric Joffrey is already musing aloud about his role as Emir of Venezuela, probably making a list of Venezuelan buildings and monuments on which he can slap his name.

Venezuela today is not Libya in 2011. I pray the chaos and disaster that followed the Libya strikes are not replicated in Venezuela. The Regime will own every such consequence, and GOP Members of Congress—particularly those who criticized President Obama’s 2011 decision not to secure authorization for his strikes in Libya—should be relentlessly made to own their support for this illegal war.

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In case anyone has missed it, Heated Rivalry is a Canadian miniseries running on HBO that is based on a series of novels written by author Rachel Reid called Game Changer. The story centers around three spectacularly talented professional hockey players, rookies Shane Hollander and Ilya Rosanov and veteran Scott Hunter, who are all secretly gay or bi and have to figure out how to navigate that fact in the not-at-all-queer world of pro hockey when their passions start erupting in uncontrollable ways. Shane and Ilya launch a whole arch-rivals-with-benefits series of trysts that grow into much more. Scott falls for the handsome Kip, an art history grad student who blends smoothies to pay the bills and is the only out gay guy of the four whom Scott proceeds to love-bomb in avowedly fucked-up and overly intense ways.

I am enjoying the show, a lot. It is sexy and edgy and the actors are doing a wonderful job. It is more a series of character sketches and tone paintings strung together than an actual narrative. There are just six episodes in this first season and episode five is the first time Ilya and Shane start becoming fully realized humans. Scott’s character still is not, really, and while Kip has a lot more depth he is also treated as a bit of a device for helping Scott spelunk through his repression. Still, the show is great, a lot of fun, and very touching.

And also, I would like sexy, edgy, well-done depictions of queer intimacy and romance to stop being structured so regularly around closeted guys and sexual repression. The closet and sexual repression are prefabricated narrative devices, a constraint that characters have to push against that makes it easy to write a story full of tension and release (double entendre intended). Finding a way out of the closet and liberating oneself from sexual repression are universal queer experiences and worthy stories to tell. But they are not the only stories and they have often been a default when depicting edgy, tension-filled accounts of queer sexuality. Brokeback Mountain was incredibly moving and an important event. It was also twenty years ago.

The fact that three of the four main actors are publicly identified as straight—François Arnaud who plays Scott is bisexual; the others have not said anything to the contrary in public—plays into that narrative framing. This is not because I have any problem with straight actors depicting queer roles—I don’t, at all—but because the show’s brilliant promotional strategy includes a lot of Hudson Williams and Connor Storrie happily flirting and teasing and playing with an OnlyFans-style “sure I’m straight but ...” vibe. Which, again, is cool with me and indeed an important part of the Moment the show is riffing on right now. It all just situates the phenomenon of this show in a way I think is worth naming.

Maybe episode 6 and any future seasons will start opening up new dimensions in the lives of these characters. I will keep watching and enjoying the show regardless. I also look forward to more sexy, edgy shows about queer intimacy and romance that are filled with all kinds of captivating tension and release and that do not use the closet as their central organizing theme.

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Charles Schenck, one of the organizers of this effort, was prosecuted by the United States under the recently enacted Espionage Act of 1917 on the theory that his attempts to convince men not to participate in the draft were obstructing the war effort. Schenck argued in defense that his speech was protected by the First Amendment. The Supreme Court rejected Schenck’s argument in its 1919 decision and allowed the conviction to stand.

Not surprisingly, the U.S. government took this ruling as a license to prosecute opposition to its military policies aggressively and went after other protestors, including Socialist Party leader and presidential candidate Eugene V. Debs, all for urging people not to participate in a war effort they considered illegal.

In a series of rulings the Supreme Court repeatedly upheld these convictions, but this time with growing opposition from Justice Oliver Wendell Holmes and Justice Louis Brandeis. Holmes penned a dissent in the case of Abrams v. United States (1919) that started searching for limits to this prosecution of political protest and Brandeis dissented in Whitney v. California (1927) writing powerfully about the need for much more robust protection for political opposition:

“Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

In the decades that followed the Court made clear that the views of Justice Brandeis had prevailed, expressly adopting as law his dissent in Whitney v. California and disavowing its earlier rulings in the World War I era cases. The leaflet that Charles Schenck and his allies mailed to draftees—an image of which is attached to this post—is now understood to represent the quintessential example of highly charged speech opposing policies of the United States on matters of national security that is fully protected by the First Amendment. Much of the modern doctrine of the First Amendment, particularly involving political protest speech, has taken shape around this history and the lessons learned when the Supreme Court fell into error and allowed the U.S. government to prosecute political opponents for urging prospective members of the military not to cooperate in actions the opponents believed were illegal.

The Orange Occupant of the Oval Office and his henchmen are losing their grip on political discourse in the United States. We all see it. Their actions are becoming more erratic, their utter failure to govern is alienating more of the public and their corruption and coverups are becoming more conspicuous. It is no surprise they are grasping desperately for some way to attack their opponents as criminals. And it is no surprise they are drawing from an old and worn-out playbook.

Members of Congress who remind service members of their oath to the Constitution are not committing espionage, promoting insubordination or any of the rest of it. To the contrary: They are speaking from the heartland of the First Amendment.

The emergency appeal from the First Circuit in the SNAP lawsuit came in a weird posture. The First Circuit denied an “administrative stay” on the order to release SNAP benefits while they consider the question whether to grant a “stay pending appeal” from the district court’s injunction. (I can explain the difference if that’s helpful to anyone.) The latter requires a little more thought and explanation and the First Circuit said they would decide it expeditiously.

When Justice Jackson got the emergency request for an administrative stay, if she had not granted it herself then it would have gone to the full Court where she probably had reason to worry that five Justices would grant the requested relief and turn the administrative stay into some kind of indefinite pause on the release of SNAP benefits, as they’ve done before. So instead she seized it herself, granted the request, but granted it with a very short fuse and a highly unusual amount of detail and explanation that basically told the First Circuit: “I’m applying a very brief pause with this ‘administrative stay’ so you can decide the important question of the ‘stay pending appeal’. Do that, do it quickly, and then I hope it will be more difficult for the conservatives on the Court to muster the support they need to deny people food while this case is going on.” She didn’t say the last part explicitly, of course, but I think Steve is right that that’s what she was doing.

In short, she was using the tools available to her to make it more difficult for the conservatives to swoop in and delay food relief indefinitely. The cost of doing that was a couple-day delay right now.

An Administrative Ruling, Not a Judicial Decision

This action by the Supreme Court of Texas is not a judicial decision in the normal sense: a ruling in a lawsuit deciding legal or constitutional claims. The court was acting in an administrative capacity here as the final authority on issues of conduct and ethical obligation for the judges under its supervision. The ruling certainly does not present any questions about the constitutional right of marriage for same-sex couples and does not affect the formal status of that right in Texas or anywhere else. What the Supreme Court of Texas did was to write an individual religious exemption into the ethical canons that control the behavior of Texas state judges.

Since an application by former Rowan County, Kentucky clerk Kim Davis is pending before the Supreme Court right now in which she is asking to have her messy religious exemption claim heard on appeal — which in turn has generated a lot of overheated coverage about whether the Court will use her case as an occasion to revisit Obergefell — it is understandable that a development like this Texas ruling would fuel speculation about the fate of marriage equality As I have written in a previous essay, I think the chances are small to nil that the Supreme Court will take Kim Davis’s case at all much less use it as their chosen tool for attacking marriage equality. (We will know soon enough whether I am right or wrong.) Regardless, this Texas administrative ruling is even further afield from the constitutional question of marriage equality.

This administrative ruling does pose a threat to gay couples, however, and it is a serious one. The Supreme Court of Texas has given Texas judges license to decide on a case-by-case basis whether they will refuse to perform a civil marriage ceremony for any couple against whom they lodge a religious objection. This new license to discriminate, when considered against backdrop of Texas law on marriage ceremonies and the reality of partisan judicial elections, threatens to create a pervasive climate of hostility toward same-sex couples in the halls of government.

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Officiating a Marriage Ceremony

In Texas, as in most states, one of the requirements for entering into a civil marriage is to have a legal ceremony with an authorized officiant. The whole “By the power vested in me, I now pronounce you …” tradition is memorialized in state law in most places. Many states permit a wide range of local or state government officials to serve as marriage officiants along with almost any member of the clergy. Texas law on the subject, however, is narrow and somewhat unusual. Under Texas Family Code § 2.202(a) only the following people are authorized to perform a marriage ceremony:

1. a licensed or ordained Christian minister or priest;

2. a Jewish rabbi;

3. a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; and

4. a current, former, or retired federal judge or state judge.

While not the subject of this essay, it is striking to see specific religious faiths (Christianity and Judaism) listed in a statute conferring authority to perform a government function. The catch-all provision in the third section that encompasses any religious organization would probably lead most courts to conclude that the enumeration of Christianity and Judaism does not present any problem under the Establishment Clause. Still, it is striking. I spent a bit of time looking at the relevant laws in other states and could not find another such example.

If one does not wish to be married by a religious officiant, Texas law provides only one option: “a current, former, or retired federal judge or state judge” must perform the ceremony. This is an ungenerous list. Many states authorize a broad range of government officials to perform marriages—clerks and non-judicial court personnel, mayors, state officials who work with disabled people, even notaries—and some states will allow almost any person to be deputized for one day to marry a specific couple. Texas is not alone in limiting the list of civic officiants to judges but its list is among the most restrictive.

The Texas Exemption and the Danger of Systematic Discrimination

So far as I am aware, however, Texas now IS alone in authorizing state judges to claim a case-by-case exemption when deciding whether they will perform their official duty to serve as officiants for civil marriages. I know of just one other state that has granted judges any kind of formal exemption from performing their duty to officiate civil marriages. That state is North Carolina and the exemption there is a far cry from what Texas has done. The creation of this case-by-case exemption now places LGBTQ couples and any other couple who becomes a political target in danger of systematic discrimination in Texas.

The language of the exemption the Supreme Court of Texas has created reads in full as follows: “It is not a violation of these canons for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.”

This opt out is not limited to same-sex couples; it extends to any wedding ceremony that a judge decides to refuse for personal religious reasons. Couples with unpopular political beliefs, recent immigrants, religious minorities, interracial couples — any couple who offends the religious sensibilities of a Texas judge may find themselves being refused.

Right now, however, the hostile attention is being directed at LGBTQ couples. They are the reason the exemption was crafted and they are the primary focus of public reporting. A salient question is therefore how this exemption might be weaponized as a political issue in Texas.

Judges in Texas are elected to their positions and must stand for reelection, from Justices of the Texas Supreme Court on down to county probate judges. Texas is not alone in this, of course — about half the states use elections rather than an appointment system to select judges — though judicial elections in Texas have been particularly politicized by a system of straight-ticket partisan voting. Political advertising in Texas during judicial elections is intense, highly partisan and well-funded, often using fear of violent crime as a rallying cry.

LGBTQ issues, particularly basic rights for trans people, have also become a political rallying cry for Republicans in our politics. How long will it be before we start seeing hostile advertisements about Texas judges who continue to perform weddings for LGBTQ couples? What was previously a legal obligation is now a choice for any judge willing to claim a sincere religious objection to serving couples who become political targets. We can count on professional political hacks to start exploiting the issue as a political weapon. Couples living in hostile parts of Texas may find themselves with no viable options when seeking to get married by a judge.

Even if so, one might argue, the option will still remain to get married by “a licensed or ordained Christian minister or priest, a Jewish rabbi, or a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony.” Is a religious ceremony not a good enough alternative to a secular marriage before a judge? To pose the question should be to answer it. People cannot be required to participate in a religious ceremony in order to take advantage of state laws, programs and benefits. Laws that empower religious officiants to perform an official state function are exceptional in nature — perhaps a good and sensible exception, but the exception nonetheless — and forcing people to use a religious officiant can never be the rule.

A Clear Alternative: The Example of North Carolina

The Supreme Court of Texas did not need to create this serious risk of systematic discrimination. Even if they concluded that some form of religious opt-out was required in their judicial code of ethics, an alternative existed.

About ten years ago the state of North Carolina enacted a statute that gives judges and other state officials the option to “recuse themselves from performing duties related to marriage ceremonies due to sincerely held religious objection.” This opt-out provision, however, is structured very differently.

In North Carolina, judges and other state officials must recuse themselves from performing ANY marriages if they want to exercise the option to opt out and the recusal must last for a period of at least six months. The relevant language of the statute reads, in full, as follows:

“Every magistrate has the right to recuse from performing all lawful marriages under this Chapter based upon any sincerely held religious objection. Such recusal shall be upon notice to the chief district court judge and is in effect for at least six months from the time delivered to the chief district court judge. The recusing magistrate may not perform any marriage under this Chapter until the recusal is rescinded in writing. The chief district court judge shall ensure that all individuals issued a marriage license seeking to be married before a magistrate may marry.”

This is a fundamentally different approach from the exemption policy the Supreme Court of Texas just adopted:

• There are no case-by-case claims of religious objection so individual couples will never be put in the position of having a state official say “I refuse to serve your kind.”

• Judges and other officials must opt out of performing marriages for the full six months specified in the law so they cannot be opportunistic or mercurial in deciding when to perform this official function.

• This more categorical approach will make it more difficult to exploit the issue of marriage officiation as a political wedge — it is much harder to make an attack ad against a judge who has simply decided to keep performing marriages for everyone — and so less likely that unpopular couples will find themselves systematically shut out of government offices.

• Finally, the law places an affirmative duty on presiding judges to “ensure that all individuals” can be married “before a magistrate” if they choose, ensuring that the opt-out regime will not force couples into a religious ceremony they would not otherwise choose.

The North Carolina law was prompted by the decision in Obergefell. It was understood clearly at the time as an expression of antagonism to the idea of same-sex couples getting married and indeed was challenged unsuccessfully in several lawsuits. It may or may not be good policy to allow state officials to opt out of their duties in this way, particularly when a state adopts the opt out in response to one particular group of citizens attempting to exercise their rights.

Whatever objections one might have to a recusal policy adopted under these circumstances, North Carolina has crafted its policy so as to avoid inflicting some of the most direct and concrete harms that the ad hoc, easily politicized rule in Texas now threatens against LGBTQ couples. If shutting same-sex couples or trans spouses out of the halls of government becomes the modus operandi in civil marriage practice in the State of Texas, it may not be long before we see other states replicate the model and other couples being targeted.

Democrats have been fighting for decades to establish fair, democracy-reinforcing mechanisms for congressional redistricting. What does that mean in concrete terms? To offer a non-exhaustive list, Democrats have been:

- pushing for federal legislation to establish fair redistricting procedures nationwide;

- establishing non-partisan commissions in more and more states that use methods designed to minimize exploitative partisan gerrymanders;

- waging an effort in the federal courts, ultimately rejected by the U.S. Supreme Court, to have partisan gerrymander cases recognized as justiciable so that naked abuses of power in redistricting could be challenged in federal lawsuits;

- undertaking a remarkably successful effort to get state Supreme Courts to craft enforceable standards under their own state constitutions for challenging extreme political gerrymanders and requiring fair legislative apportionment; and

- defending and enforcing the Voting Rights Act to resist GOP efforts to dress racist anti-Black and anti-Latino vote dilution in the clothes of partisan gerrymandering

For as long as most of us have been alive, Democrats have been leading this charge. Voting rights is not my area of expertise but I have supported and believed in that effort every step of the way because I believe in principles of democratic fairness.

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The principled approach Democrats have championed only works, however, when both national political parties agree not to burn down the most basic structures of fair political dealing in an attempt to rig the system. That is what the Orange Occupant of the Oval Office and his Republican submissives have now done. Just as Geriatric Joffrey demolished the East Wing of the White House in a temper-tantrum response to millions of Americans peacefully protesting his obscene presence in the People’s House, so Republicans are acting on his orders to demolish the foundations of our system of apportionment in an effort to rig congressional elections and shield him and themselves from accountability. Republicans in Texas and North Carolina have already warped and twisted their House districts in violation of all norms of fairness—and probably in violation of the Voting Rights Act—in their desperate attempt to lock themselves and their cognitively declining figurehead into power and T***p is demanding that other Republican-controlled state legislatures do the same.

There is only one possible response to this social-contract-destroying behavior: Power. Democrats must now wield their power in order to preserve their ability to reestablish integrity and fairness as the governing principles of our democratic system of elections. I have a lot of problems with Gavin Newsom but I praise him for recognizing that reality and acting on it decisively. Political gerrymanders in Democratic states are not just a morally justified response to the Republican effort to rig our system of elections, they are a moral imperative.

I revile the fact that the Orange Incontinent and his enablers have put us in this position. Among other things, we need to confront the likelihood that it will be difficult to unwind the new baseline that this power-based response to Republican corruption will put in place. If Democrats succeed in dominating this power struggle, retaking control of Congress in the midterms and retaking the presidency thereafter, voting to enact federal legislation that returns fairness to our congressional apportionment system nationwide will mean voting to eliminate their own winnable congressional seats for a significant number of Members of Congress. Even if Democrats structure the legislation to phase in over a couple of election cycles to give themselves a chance to prepare for the shift, that is a big ask. There is a real possibility that we will not be able to overcome the political resistance of self-interest in getting that legislation through, even in the best-case scenario. That is one of the many potential costs of this fight we are waging.

This image of the proposed California map (taken from the Washington Post) shows the significant restructuring of congressional power that Proposition 50 will accomplish in that state. I saw an even more dramatic rendering the other day of a possible reapportionment of the U.S. House districts in Virginia, now that Democrats in the Virginia legislature have used legislative judo to put that issue on the agenda, which would reduce the Republican Party to a single congressional district encompassing the western portion of the Commonwealth and includes at least one district that snakes throughout the rest of the state like some kind of invasive mutant bamboo.

This is exactly what Democrats have been fighting against for my entire career, exactly what we do not believe should happen, and I loathe the fact that we find ourselves in this position. But this is the tool we have right now to exercise political power in defense of democracy and I strongly support Democrats’ lawful efforts to use that power to thwart this Republican scheme. We must respect and defend the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the Constitution in this effort, but within those lawful boundaries we will use our power without hesitation. And once we control the political branches of government again, I will strongly support Democratic efforts to put in place a national system of fair and democratic apportionment even though doing so will mean some House Democrats must vote themselves out of a job.

The depredations of the current Regime call on us to find new ways to defend democracy and the rule of law while remaining true to our core values and preserving the foundations of our constitutional order. This sudden fight over redistricting is a test of our resolve in the face of mob-style corruption. We did not choose this fight, but we will win it.

I will resume publishing essay-length commentary on developments in law and public policy soon. Preparation and travel for my Dad’s memorial and the continued administration of my mother’s estate wound up hijacking my non-teaching time these last couple of weeks. Many thanks for your patience.

I spent part of this evening gathering and uploading pictures of the great philosopher for the organizers to use at the service. This particular photo taken in front of our house in Northampton is the first Halloween I remember, quite possibly the first time I went trick-or-treating. My parents didn't try all that hard with my ghost get-up, it must be said, but my brother Patrick is rocking his clown look. Dad smoked a pipe for much of my young childhood—a consciously chosen affectation as he would freely admit—until the emerging science on the effects of second-hand smoke told him it was time to stop. The scent and apparatus of the pipe and its loose tobacco are core parts of my sensory landscape from that time that still have a vibrant life in my memory, along with Zabar's Special Blend coffee and the occasional deep-dish peach pie.

I miss my Dad every day. He was a very good man, a very great mind and a remarkably impactful citizen of the world who tried earnestly to be a good father and succeeded in important ways that make grace and forgiveness easy to offer for the important failings. I still do not really understand my world without him in it.

What the First Amendment Says About Burning a Flag in Protest.

The First Amendment doctrine in this area dates back to 1989 and 1990 when the Supreme Court issued a pair of decisions invalidating state and federal laws that targeted flag burning as a symbolic act of protest. The main case, Texas v. Johnson, involved a prosecution under a Texas law that made it a criminal misdemeanor to “desecrate” a “venerated object” including the American flag, with “desecrate” being defined as “deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” The defendant in the case, Gregory Lee Johnson, was participating in a protest at the 1984 Republican National Convention in Dallas. At a certain point another protestor stole an American flag from a flagpole and handed it to Johnson who doused it in kerosene and set it on fire while others chanted. Johnson was subsequently arrested, prosecuted, convicted and sentenced to a year in prison with the sole charge coming under the flag desecration law.

Johnson likely could have been prosecuted under other statutes that did not target expression: for knowing receipt of stolen goods, vandalism, and perhaps the illegal lighting of a fire in a public place. Instead Texas prosecuted him for his speech. The flag ordinance only criminalized “desecration” of a flag, not all destruction or burning. Official guidance from the U.S. Government on the retirement of worn or damaged flags calls for them to be incinerated in a ceremony that conveys respect, so it is clear that the act of burning an American flag by itself is not malum in se. It is the disrespect and offense conveyed by the act of burning a flag in protest that the Texas ordinance made illegal. Indeed, the testimony of people who witnessed Johnson’s protest and said they had been seriously offended was part of the evidence submitted to secure his conviction.

The Supreme Court held in Texas v. Johnson that targeting a speaker for the offensive content of his political message in this way is a violation of core First Amendment principles. The Court rejected Texas’s claim that government can claim a special interest in “preserving the flag as a symbol of nationhood and national unity” as grounds for punishing a person for using the flag to communicate disrespect and reiterated the “bedrock principle underlying the First Amendment . . . that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” That principle applied with full force to a symbol like the flag that enjoys widespread veneration.

Shortly after the Court issued its ruling, the U.S. Congress enacted a statute imposing a national ban on flag burning protests, asserting a purported federal interest in preserving the flag as a national symbol and tweaking the definition of the offense in an effort to circumvent Texas v. Johnson. Several individuals quickly burned American flags to test the law, were prosecuted, and came before the Court on expedited appeals. The government asked the Court to reconsider Texas v. Johnson in light of the “national consensus” against flag burning that it said had emerged since its ruling. The Court was not impressed. “We decline the Government's invitation to reassess [our] conclusion in light of Congress' recent recognition of a purported ‘national consensus’ favoring a prohibition on flag-burning,” the Court held in United States v. Eichman. “Even assuming such a consensus exists, any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment.”

Members of Congress outraged by these rulings tried to advance a constitutional amendment that would have carved flag burning out of the First Amendment’s protection but they were (barely) unsuccessful, as were several subsequent efforts. The law of the land remains today that acts of flag burning as a symbolic protest cannot be prosecuted for the content of their message.

The Executive Order.

In the face of this clear Supreme Court precedent prohibiting the targeting of flag burning as an act of symbolic protest, what does this latest Executive Order do? It targets flag burning as an act of symbolic protest. The order is both weak in its actual effect and foolish in the admissions it makes.

The Weak Part.

After waiving its rather small hands about the “uniquely offensive and provocative” nature of flag burning as an act of protest, the order acknowledges Texas v. Johnson as binding authority and directs the Attorney General to “prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment.” It also directs federal officials to refer matters to state authorities where state and local laws may have been violated.

As diktats from a wannabe fascist Regime go, this is weak sauce. Here are some of the things the order does not do:

- Announce that it will start prosecuting flag burning under the federal statute that was declared unconstitutional in United States v. Eichman. That statute has never been repealed and remains a part of the U.S. Code. Laws do not get excised from statute books when they are declared facially unconstitutional even though we often describe them as being “struck down”. They simply become unenforceable. An out-of-control President could demand to be recognized as a co-equal interpreter of the Constitution and insist that the Supreme Court reconsider its precedents on flag burning in light of that demand. The Orange Occupant of the Oval Office has not made this attempt.

- Propose new flag burning legislation to Congress. Eichman invalidated a federal statute that attempted unsuccessfully to navigate Texas v. Johnson by crafting a de facto prohibition on flag protests without stating that purpose openly. The crack lawyers working in this White House (surely there are one or two) could try again, this time with the expectation that a more sympathetic Supreme Court might give them additional leeway. A competent autocratic Regime would be using political control over both Houses of Congress to enact aggressive new policy and might view this kind of strong-arm nationalism as an attractive target of opportunity. This Regime has not attempted to propose any major legislation outside the budget reconciliation process and has not said a word about a new flag burning statute.

- Demand a flag burning constitutional amendment. The Republican Party has tried that gambit repeatedly, always being stopped from sending the misbegotten proposal to the States for possible ratification by a bare handful or even a single vote in the U.S. Senate. A strongman Executive with sway over a compliant Congress could try the gambit again, twist arms to get the proposed amendment over the 2/3 threshold and exploit the jingoism of the proposal for political and popular advantage. This not-so-strong man has clearly decided he could not get it done.

This is a remarkably weak pronouncement. For all its tough talk the Executive Order obediently agrees to stay within the lines laid down by a more centrist Supreme Court thirty-five years ago and eschews any of the more disruptive, rule-of-law-violating steps an autocrat with no fear of rebuke or failure might attempt.

The Foolish Part.

What the Executive Order does do, however, is lay the groundwork for a First Amendment defense in cases brought under the “applicable, content-neutral laws” aimed at “harm unrelated to expression” that the drafters of the order seem to think will provide them a safe haven. The order makes a series of admissions that will provide a potential constitutional defense in any prosecution the Regime actually attempts.

Texas v. Johnson and U.S. v. Eichman held that prosecuting someone because they use the American flag as a symbol in a way that conveys disrespect or offends an audience is a violation of the First Amendment. The laws at issue in both those cases were found facially unconstitutional because they were both expressly designed to target the expressive component of flag burning. The Texas law said openly that it was doing so and the federal statute tried and failed to hide the same purpose behind more neutral-sounding language.

Neither of these rulings is limited to statutes that openly and facially target expression. If government applies an otherwise neutral statute as a tool for targeting political speech it finds offensive then it has committed the same constitutional violation. It is just usually more difficult to prove that is what the government is doing when the statutes it uses do not target expression on their face. If a government uses facially neutral laws to target expression it finds offensive—if Gregory Lee Johnson had been prosecuted for vandalism rather than flag desecration—establishing that impermissible intent is a challenging factual question for a criminal defendant.

That is, unless the government has announced beforehand that it is going to use facially neutral laws to target expression it finds offensive and openly embraces that impermissible intent. Which is exactly what this Executive Order does, loudly and unambiguously. Any person who commits an act of flag burning and is prosecuted by the federal government under a facially neutral law can point to this edict and make a credible argument that the government is doing exactly what it announced it would do: targeting the defendant because of their protected speech rather than applying neutral laws in good faith. With their foolish bravado, the Regime has made it a great deal more difficult for the Department of Justice to prosecute acts of flag burning that might otherwise be vulnerable to punishment under laws unrelated to expression. The order announces improper intent as a standing policy.

***

The flag burning Executive Order reveals the political weakness of this Regime and the incompetence of their work. It is little wonder they stopped talking about the order shortly after it issued. The conversation it demands is not one they want to be having.

My mother would have turned 89 years old today. I suspect August 20 will always be Mom's Birthday in my mind, as December 27 will be Dad's Birthday. Cynthia fixed on her birthday in her final years, even when she could no longer remember when it was or understand how the calendar progressed. Her fear of mortality oriented around the question whether she would live until her next personal anniversary. That fixation and indeed most of her fear seemed to recede in her last couple of months as her connection to the world around her and to language frayed. When Cynthia's final decline leapt like an angry cheetah to snatch her from the world it was less than four weeks before her 88th birthday. Inevitably, at the time, I thought about her accidental prescience.

I think of you, Mom. I am confident I always will. And I also know that would not have been enough for the relentless clamor of your mind. But your clamor no longer defines the rhythms of my days nor the story I write for myself. I think of you with the love of honesty and the clarity of grace. That is enough for me on this anniversary of your birth.