Don’t #Resist by Going to Law School

For the young and idealistic, those who are jaded with their current careers, and those who hate President Trump for whatever reason, they may think that now would be a good time to become a lawyer and be part of the action.

There has a recent increase in LSAT and law school applications, with some speculating that it is partly in response to Trump. Some are calling it the “Trump Bump.” An increase in applications does not necessarily mean more people will go to law school, as some people apply to explore their options and use their acceptance letters as leverage for scholarships or job offers. But it is an indication of things to come.

…Bad idea, according to Shannon Achimalbe:

[A]ctivists should not go to law school because they don’t have to be lawyers to make change. The three years spent in law school can be spent pursuing their social causes. In fact, the large student loan debt might limit their options and possibly force them to work for the dark side. [¶] … Once you graduate from law school and pass the bar exam, you can do your part to represent an immigrant for free. But if you want to resist, there are other, less expensive ways to do it. When you graduate with limited job prospects and huge student loan debt, who do you think will get the last laugh?

The Legal Imagination

A delightful bit from a reader in legal theory Queen Mary University of London’s School of Law, Maksymilian Del Mar, about the importance of imagination to the lawyer:

You’d be forgiven for thinking of a judge as someone who spends all day shoehorning ‘the facts’ into pre-fabricated principles, and laying down determinative rulings like geological strata. In fact, legal reasoning is a much more supple exercise. Individual judges must resolve knotty questions under conditions of uncertainty, and in a context in which there’s usually profound disagreement about both what has happened and what ought to be done about it.

* * *

Overall, imagining is a mode of enquiry into what might matter – a collective, interactive investigation of what might be at stake in some dispute or issue. Fictions, metaphors, hypothetical narratives and multiple perspectives are hugely helpful because they each generate a different set of possibilities. These devices are what make legal reasoning so resourceful and ingenious, because they are inherently tentative and experimental. Sometimes, this form of communication involves pretence and make-believe; at other times, quirky juxtapositions – of trees and constitutions, or of customs and crystals.

I commend the entire article to you.

Lawrence Solum on Originalism and Judge Gorsuch

I studied civil procedure and jurisprudence under Professor Solum many years ago and can assure all readers that he speaks the truth about his own political preferences in the quoted passages from his prepared remarks below. He testifies today in support of Neil Gorsuch’s nomination to the Supreme Court:

I am not a conservative or libertarian, but I do believe in originalism. Why is that? It is because I am convinced that giving judges the power to override the Constitution and impose their own vision of constitutional law is dangerous for everyone. If you are a Democrat, you should ask yourself the question: Given that the next Justice will be appointed by a Republican President and confirmed by a Republican Senate, would you prefer an originalist like Judge Gorsuch or would I prefer a conservative Justice who does not believe that she or he is bound by the constitutional text? The alternative to originalism is a Justice who believes that she or he is free to override the constitutional text in the name of her or his own beliefs about what the Constitution should be given changing circumstances and values.

* * *

It is true that neither originalism nor any other constitutional theory can work if the Justices are corrupted by ideology. For originalism to work in practice, the President must nominate and the Senate must confirm Justices with the virtue of judicial integrity. They must be willing to subordinate their own political and ideological preferences to the law. They must set aside their preconceptions and desires and engage in a search for truth—with a willingness to reach outcomes as judges that would necessarily agree if they were lawmakers. In this regard, I take comfort from what I have read about Judge Gorsuch’s reputation for integrity. The job of this committee should be to examine the record carefully. If you believe that Judge Gorsuch has the virtue of judicial integrity and that he is committed to the principle that the Supreme Court is bound by the Constitution, then I believe that your duty is to vote for the nomination.

I’ve grave doubts about the way that originalism has been used and deployed in both judicial reasoning and political rhetoric surrounding the Supreme Court for many years. If the originalism described by Professor Solum were consistently and faithfully applied I might be less skeptical. But the process of selecting and confirming a Supreme Court Justice is hugely politicized. Such an environment seems the exact opposite of one in which the virtue of judicial integrity might be either prized or identified.

Let us hope that despite this sorry state of political affairs, Judge Gorsuch nevertheless possesses this virtue — as he is all but certain to soon become Justice Gorsuch.

Photo by j3net

Amul Thapar Nominated For Sixth Circuit

President Trump has nominated Amul R. Thapar for a seat on the Sixth Circuit Court of Appeals.

Judge Thapar currently serves as a United States District Court Judge for the Eastern District of Kentucky, where he has sat since 2007. The most prominent case he has handled, so far as I can tell, was on assignment to the Eastern District of Tennessee, where he heard the trial of protestors who broke into the Y12 building at the Oak Ridge National Laboratory.

Prior to his elevation to the bench, he was the United States Attorney for the Eastern District of Kentucky from 2006 to 2007 where he earned his “tough on crime” credential. He is 47 years old and is a 1994 graduate of Boalt Hall. His name originally appeared on then-Candidate Trump’s “long list” of potential Supreme Court nominees, the one ghostwritten by the Heritage Foundation and the Federalist Society.

I’ve long considered the Sixth Circuit the most conservative of the various Federal appellate courts, and it’s a good bet that Judge Thapar will do little to steer that court in a different direction.

One Month, One Appointment

Donald Trump has been President for an entire month. Other than nominating Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to the United States Supreme Court, he has not made any judicial appointments. As I wrote over a month ago, one in eight seats on the Federal bench are currently vacant. This has an impact on the speed with which cases can be handled, the need to reach out to retired judges or judges at different levels of the bench to share work, and the amount of attention that can be given to each individual dispute.

Of course, we should expect the White House to nominate conservative lawyers to the bench, but there is no shortage of smart, well-qualified, conservative lawyers in each and every state of the Union. So it’s disappointing to see the high-profile Supreme Court nomination obscure the reality of complete inaction on the part of the White House to address the depleted state of the federal bench. Simply put, the courts need judges to work, and there aren’t enough of them in place to get the business of the judiciary done.

I guess there’s no choice but to check back later and we’ll see what happens next.

Targeting LBJ’s Revenge

What Is The Johnson Amendment?

The Johnson Amendment was passed in 1954 by a Republican Congress and signed into law by President Eisenhower. It was offered by then-Senator Lyndon B. Johnson, a Democrat from Texas, who was motivated by a nonprofit, nonreligious entity that had endorsed his Republican rival in a recent election. It was introduced on the floor as an amendment to a revision to section 501(c)(3) of the Internal Revenue Code, and consequently there is functionally no legislative history suggesting what Senator Johnson or his colleagues thought was included in, or excluded from, the term “political activity.”

Most churches in the U.S. are now 501(c)(3) entities. The language was amended again in 1987, to include not only activities on behalf of a particular candidate but to also include activities in opposition to a particular candidate. Today, it is part of section 501(c)(3) of the Internal Revenue Code, defining as one of twenty-nine kinds of entities which are exempt from paying Federal taxes. The applicable section of the tax law reads as follows:

Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office(Emphasis added.)

 

How Is The Johnson Amendment Applied?

In 2006, the IRS issued FS 2006-17, which indicated that voter education such as publishing candidate voting records and platforms, voter registration drives, and get-out-the-vote drives do not count as “political activity” so long as they are done in a nonpartisan fashion. “Partisan” in this context was defined as failing to include disfavored candidates, refusing to submit voters who indicate a certain partisan preference, or misrepresenting or portraying as favorable the positions of candidates described. 501(c)(3) tax-exempt organizations may invite candidates to speak to them, but the invitations must be open to all candidates for that office.

Under FS 2006-17, a 501(c)(3) may engage in “issue advocacy,” but may not closely link its “issue advocacy” with the positions of particular candidates and is cautioned to avoid issue advocacy efforts timed to coincide with an imminent election. Some members may recall that in 2008, certain churches in California urged their members to vote in favor of California’s Proposition 8 which banned same-sex marriage; this did not violate the Johnson Amendment under FS 2006-17, because it related to the issue of same-sex marriage rather than any candidate.

I find no evidence that the Johnson Amendment has ever been directly challenged for validity under the First Amendment, under the Free Exercise or Free Speech clauses. It seems to me that substantial challenges under those clauses might be mounted and there are indications that religious-rights advocacy organizations like the Alliance Defense Fund and the ACLJ are attempting to bring exactly such a challenge right now. I’d welcome information regarding those claims, or on precedent that my cursory survey missed.

Judicial challenges to the law have instead taken the form of disputing IRS rulings and enforcement of it. The most prominent case law interpreting the Johnson Amendment is United States v. Dykema, 666 F.2d 1096 (7th Cir. 1981). In Dykema, the Seventh Circuit indicated that whether a tax-exempt entity’s activities violate the Johnson Amendment must be evaluated in light of all relevant “facts and circumstances.” Among these were the following discussed extensively by the Dykema Court, at 1100-1104 are whether the purpose of the organization exclusively for one of the purposes described within 501(c)(3), whether a substantial part of the organization’s activities consist of attempting to influence legislation, and whether the organization participates in political campaigns. For instance, in Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983) TWR was denied 501(c)(3) status because of its routine activity of lobbying for various forms of taxpayer rights. In particular the TWR Court was moved by the fact that the entity engaged in “express advocacy.” Note, though, that a standard of “express advocacy” would be substantially narrower than a standard that engages in the holistic “facts and circumstances” test described (and historically more often applied) in Dykema. See, e.g., FEC v. Christian Coalition, 52 F.Supp.2d 45, 53 (D.D.C. 1999).

The tension between these two tests was noted in Association of the Bar of the City of New York v. Commissioner, 858 F.2d 876 (2d Cir. 1988). In New York Bar, the lawyer’s association published to its members an informational newsletter that ranked candidates in order of preference based on issues selected by the leadership of the entity. This was found to constitute “political activity” under the “facts and circumstances” test, but not under the “express advocacy” test, because there was neither a formal endorsement nor a formal dis-endorsement. Ultimately, the New York Bar Court applied the broader “facts and circumstances” test from Dykema, and concluded that the New York Bar had violated the Johnson Amendment, with the penalty that the New York Bar lost its 501(c)(3) tax-exempt status. The Supreme Court has not yet issued a decision announcing which of the two standards applies, and under the case of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984), Federal courts are generally guided to defer to any reasonable interpretation of an ambiguous law that is used by the agency charged with enforcing that law absent other guidance.

 

Why Is The Johnson Amendment In Politics Now?

On January 3, 2017, Congressman Walter B. Jones of North Carolina introduced a bill, titled H.R. 172, which would strike the language “, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office” from section 501(c)(3) of the Internal Revenue Code. If passed, this would effectively repeal the Johnson Amendment. Rep. Jones describes the purpose of the bill as follows: “To restore the Free Speech and First Amendment rights of churches and exempt organizations by repealing the 1954 Johnson Amendment.” H.R. 172 has been referred to the House Committee on Ways and Means, which is the committee that controls tax law; the committee has yet to take action on the bill.

On February 2, 2017, President Trump attended the annual National Prayer Breakfast in Washington, DC. During his remarks, he cited “the right to worship according to our own beliefs” as a fundamental freedom of all Americans, and then said: “That is why I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution. I will do that. Remember.”

President Trump lacks Constitutional power to unilaterally “get rid of and totally destroy” the Johnson Amendment, because it is a part of formal statutory law. Only Congress can amend statutes. What President Trump can do, unilaterally, is issue an executive order instructing the Commissioner of the Internal Revenue Service to apply the narrower “express advocacy” test during Trump’s Presidency.

We may certainly infer from the President’s remarks this past Thursday that should H.R. 172 pass out of Congress, he will sign the bill into law. Some might go further and anticipate that the President and members of his Administration will use their political influence to lobby Members of Congress in favor of passing H.R. 172.

Photo by manhhai

Donald Trump and the Depleted Bench

As we stand at the brink of the Trump Administration, most eyes appear to be on the imminent fate of the Affordable Care Act and anticipating a dramatically realigned foreign policy. To the extent that the law itself is an issue, there is also a great deal of attention placed on who President Trump will nominate to the United States Supreme Court.

Less visible has been the effect of a Republican-controlled Senate significantly slowing the process of judicial confirmations, with the result being that about 13% of the total judiciary is presently vacant. I wonder what the effects of demographics — boomer judges reaching senior status — have done to contribute to this state of affairs separate from the rugby of partisan politics. Regardless, within his first year in office, Trump will have the same impact on the judiciary that any of his predecessors was able to accumulate over the course of two complete terms. Only Franklin Roosevelt and George Washington will have had larger proportional impacts on the federal bench than Trump will have by about this time next year. Assuming Trump serves a single term, the likelihood is he will have nominated something like one in six of all federal judges — should he serve two terms, that number will rise even further.

And we have a pretty good hint out there of what Trump’s nominees are going to look like.

I’m tempted to commit to making an effort to profile the new nominees, but with 114 currently-vacant seats, and 13 more judges scheduled to retire or take senior status over the next year, that’s a bit overwhelming. More work than I care to do on my own. But I do think a look at some of the other picks made, especially for the 17 seats on the Circuit Courts of Appeal, will deserve some close attention. As for that most-important Supreme Court pick, frankly, I’m at a loss as to how to forecast, so I’ll just plain guess, and my guess is Diane Sykes of the Seventh Circuit, for a history of judicial deference to legislatures, avowedly originalist interpretation rubric, and a particularly strong Second Amendment holding. But that’s just a guess and I don’t have a lot of confidence in it.

So stay tuned.

Sofía Vergara Sued By Her Own Embryos

Over at the parent blog, Will Truman links to one of many articles floating around with the legally salacious concept that übersexy Columbian-American actress Sofía Vergara has been sued by her own embryos.

The basic story is this: Ms. Vergara (probably best known for her role on “Modern Family”) had a romantic relationship with a man named Nick Loeb. Mr. Loeb and Ms. Vergara apparently had serious discussions about having children together. But I’m guessing that Ms. Vergara did not want to interrupt or alter her entertainment career by altering her body with pregnancy and motherhood, so they used the services of a fertility clinic and created two embryos in vitro. Those embryos have been frozen and are in storage, and through the miracles of science we know they are female, and through other miracles of science it is apparently possible to implant them in a surrogate mother, in whom they would or at least plausibly could become viable and brought to term. Ms. Vergara and Mr. Loeb have since broken up, and Ms. Vergara no longer wants the embryos to be brought to term. Mr. Loeb does. So, there’s your basic disagreement.

Mr. Loeb previously brought suit in California to compel implantation of one or both of the frozen embryos in a surrogate. That suit wound up hitting a speed bump when Ms. Vergara’s lawyers served discovery on Mr. Loeb including asking questions about whether Mr. Loeb had, in any of his previous romantic relationships, paid for or otherwise consented to terminating pregnancies. Mr. Loeb refused to answer these questions on grounds of privacy and this resulted in some motion practice — which Mr. Loeb ultimately lost.

So rather than make those disclosures, on December 5, 2016, Mr. Loeb abandoned his direct suit against Ms. Vergara in California. Ms. Vergara’s attorneys had already filed and there was pending an independent motion to dismiss, and there may well have been judicial signals that the Court was amenable to granting the motion. As I can attest personally, such signals can have a powerful effect on strategic decisions.

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You Think You’ve Heard It All

One of my colleagues just reported to me that one of our clients was kidnapped on Friday. Yes, kidnapped.

The kidnappers were her relatives, who were upset at the lawsuit that our client had hired us to file and prosecute. They intimidated her into a car, drove her down to the courthouse in downtown Los Angeles, and told her that they’d leave her there without a phone, money, or keys unless she signed a request for dismissal form.1 She complied and was rewarded with a trip back home.

Upon receiving the request for dismissal, the clerk called my colleague up and said that it “looked fishy” so she was seeking some clarification before she filed it. And no, we hadn’t authorized a dismissal. So the moral of the story is, a good clerk is among the most valuable things a court can have.

 

Photo by inkjetprinter

  1. Bear in mind, she lives in an exurban community north of a rugged mountain range about two hours’ drive from downtown. []

Constitutional Nondefense

For one of those days when I really need something to help me sleep, or the next time I get an argument about a politician declining to defend a state’s law because it’s unconstitutional, there’s a 70+ page survey and analysis available in Columbia Law Review.  The upshot is basically that a blurring of the line between law and politics is going to be inevitable, and moreso in an era of closely divided government and high partisan tensions. Decent survey of such decisions, inspired, of course, by a rash of decline-to-defend decisions with respect to defense of marriage laws.

According to the author, the standard is, or at least ought to be, good faith, acknowledging that day-to-day political issues are inevitably going to play a part in making these sorts of decisions:

So long as executive officials seek in good faith to engage in genuine interpretation of what the Constitution requires, the fact that their interpretive approaches are not identical to those engaged in by judicial actors does not render them illegitimate, or purely political. 114 Colum. L. Rev. 213, 281.

This sounds good as a restatement of existing law and practice, but it doesn’t tackle the problem that “good faith” may be something that partisan opponents will be reluctant to concede. That, however, is probably a purely political problem rather than a legal one.