Author Archives: kramerjerson

Unanimous Supreme Court throws out former Governor Bob McDonnell’s conviction

Former Virginia Gov. Bob McDonnell. (AP Photo/Andrew Harnik)


In the final opinion of the term, the Supreme Court threw out the corruption conviction of former Virginia governor Robert McDonnell. According to the Court, in an opinion by Chief Justice Roberts, the trial court had adopted an overly expansive interpretation of the relevant statutory provisions, and the definition of what constitutes an “official act,” in particular. Given the Chief Justice’s clear preference for broad agreement on the Court, it’s perhaps fitting that he authored the final opinion for the term for a unanimous court.


U.C. Irvine’s Rick Hasen offers some early analysis of the opinion on the Election Law Blog. He writes:


The Supreme Court’s unanimous ruling throwing out the conviction of Gov. McDonnell (while leaving open the possibility of a retrial on a narrower theory of the case) is sensible and courageous, and shows the continuing important influence of Justice Scalia in this area of the law. It is hard to write an opinion letting off the hook someone whose actions were as odious as Gov. McDonnell, in taking rolexes, funding for his daughter’s wedding and more from someone who wanted the governor’s assistance in marketing the equivalent of snake oil. But it was the right thing to do.


As Hasen notes, the opinion was clearly influenced by the late Justice Scalia, in both tone and substance.  For starters, the opinion relies upon a close textual analysis of the relevant provisions.  Further, it relies upon the late Justice Scalia’s opinion in U.S. v. Sun-Diamond Growers, which sought to distinguish between unlawful corruption and ordinary politics.


Former governor McDonnell’s trials are not over, as it remains possible that he could be convicted on remand. In the meantime, prosecutors will have to take more care in making the case for corruption convictions.


Federalist Society podcast on Brexit, devolution, and secession



In anticipation of tomorrow’s Brexit vote, the Federalist Society has produced up a podcast on Brexit, devolution, and secession. The podcast covers both the pros and cons of secession and devolution generally, and those of Brexit specifically. The participants are Philip Booth of the Institute of Economic Affairs (Britain’s leading pro-free market think tank), and myself. Booth is a well-known expert on federalism and decentralization in Britain and the European Union. He is the author of the excellent recent short book, Federal Britain: The Case for Decentralisation.


In this May post, I explained why I am tentatively opposed to Brexit, though I think both sides in the debate have some strong arguments. I have also analyzed the role that political ignorance might play in the Brexit vote. Sadly, widespread public ignorance is an important part of the political landscape in Britain, just as it is in the United States, and many other countries around the world. That said, I believe the opposing sides in the Brexit debate have both made many good points, even if there is also no shortage of bad ones.

AEI event on Thursday — The Court: Power, policy and self-government

The American Enterprise Institute (AEI) will host a timely and interesting event Thursday about the proper role of the judiciary, featuring one of the best judges in the country: Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.  Here is AEI’s description of the event:

Judges must navigate between interpreting the Constitution and statutes, working within existing precedents and applying both bodies of law to particular cases. Striking this balance has policy consequences that render the Supreme Court a political branch in the public’s mind. As the heated debate over Justice Antonin Scalia’s replacement demonstrates, the Court is no longer seen as the “least dangerous branch.”

How should justices address this tension in their decisions and opinions? Can the Court return to a narrower vision of its judicial duty? If not, what judicial philosophy best fits the reality of the Court’s role in a self-governing republic?

Join AEI for a timely discussion between Judge Brett Kavanaugh and The Wall Street Journal’s Paul Gigot, followed by an expert panel on the Court’s challenges in carrying out its duty to “say what the law is.”

The event will take place Thursday, March 31, 12:30-2:30pm, at AEI, in Washington. Kavanaugh will speak with Gigot from 12:30 to 1:30 p.m. Professors John Eastman, Jeremy Rabkin, Kevin Walsh and I will speak afterwards from 1:30 to 2:30p.m.

Information, registration and live streaming video are available here.







Divorcing lesbian mother ordered not to talk to children about religion or homosexuality



Fortunately, Tuesday’s Washington Court of Appeals decision in Black v. Black, reversed that order.

1. The facts (some paragraph breaks added, some deleted):

Charles and Rachelle Black married in 1994 and have three children from the marriage. Charles and Rachelle raised their children in a conservative Christian home and sent the children to religious-based schools…. In December 2011, Rachelle informed Charles that she was a lesbian, and began a romantic relationship with another woman…. In May 2013, Rachelle filed for divorce….

The children started seeing a therapist in early 2014. According to the therapist, the children had some difficulty with the divorce, but they were adjusting. During one counseling session with the therapist, Rachelle told the children she was gay….

Rachelle subsequently provided the oldest child with a book to answer any questions that he might have about her sexuality and their faith. She also showed the two oldest children a documentary about a transgendered child because they had asked questions about the meanings of “LGBT” and “transgender.”

While initially supportive of the information Rachelle provided to the children, the therapist asked her to refrain from having conversations about sexuality outside of therapy. Due to the children being sheltered, naïve, and shut down, the GAL [guardian ad litem — the person appointed to represent the interests of the children for purposes of the litigation] and therapist were concerned that Rachelle might not give the children the time they needed to adjust and cope to the divorce and Rachelle’s sexual orientation. However, the therapist admitted that the children were getting used to the idea that their mother was gay, that the issue did not consume an inordinate amount of time during their therapy sessions, and that she and the children primarily talked about other concerns the children had related to their parents’ divorce….

[UPDATE: According to the briefs, the children were 7, 13, and 15 or 16 at the time of trial.]

2. The trial court order, based on the trial court’s stated belief that “it will be very challenging for [the children] to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality”:

7. The children are to have no contact with [Rachelle’s partner] until such time as [the therapist] feels that the children are ready. [The therapist] has the discretion to determine when and/or how contact should occur.

8. Ms. Black is ordered to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyles concepts and further that she is prohibited from exposing the children to literature or electronic media; taking them to movies or events; providing them with symbolic clothing or jewelry; or otherwise engaging in conduct that could reasonably be interpreted as being related to those topics unless the discussion, conduct or activity is specifically authorized and approved by [the therapist].

The trial court also “awarded Charles sole decision-making authority for religious upbringing.”

3. The court of appeals’ free speech and free exercise analysis of the specific restrictions on the mother:

Our courts have upheld restrictions on certain types of unprotected speech when they have served the best interests of the child [citing cases that upheld restrictions on “defamatory remarks” and on speech that “results in actual, tangible harm to children”]. But while the welfare of children is the State’s paramount concern in dissolutions, restraining speech merely based on content presumptively violates the First Amendment…. [E]ven in the context of family law, content-based speech restrictions are presumptively unconstitutional ….

Here, the trial court made no specific findings of any actual or perceived harm that the children would suffer from the prohibited speech, other than that it would “be very challenging for them to reconcile their religious upbringing” with the changes in their lives concerning the divorce and Rachelle’s sexual orientation. The trial court did not restrict Rachelle’s speech to prohibit her from making defamatory statements about Charles, or to prevent her from harming the relationship between Charles and the children. The restrictions in this case are blatantly content-based restrictions prohibiting Rachelle from any speech or communication about religion, homosexuality, or “alternative lifestyles concepts” with her children….

The restrictions function to chill a broad range of Rachelle’s speech around her children, and prevent her from being able to share and speak about her religion with her children. While the best interests of the children is a trial court’s paramount concern …, here there is no indication that Rachelle’s prior speech related to her sexual orientation or her religious views caused harm to the children or disparaged Charles, or would cause harm to the children if such speech or conduct occurred in the future. Therefore, we hold that the restrictions are an unconstitutional burden on her freedom of speech and her free exercise of religion….

[Moreover, b]ecause exercise of religion also includes performance or abstention from physical acts in addition to belief and profession, the government must have a compelling government interest to burden a person’s right to free exercise. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2767, 2770 (2014). [Burwell was a federal Religious Freedom Restoration Act decision, not a Free Exercise Clause decision; but the court may have cited it because Washington courts interpret the Washington Constitution’s religious freedom provision as apply a RFRA-like rule.] While a parent’s right to select their children’s religious experiences and opportunities is not absolute, the vast majority of cases restricting a parent’s right to free exercise include cases of parents risking their children’s health and well-being. That is not the case here, and the trial court demonstrated no compelling governmental interest to burden Rachelle’s free exercise of religion.

4. The court of appeals’ analysis of the award of “sole decision-making authority for the children’s religious upbringing” to the father:

Washington courts have created a separate standard where a trial court’s order regarding decision-making authority restricts the parents’ rights to free exercise of religion. There must be a substantial showing of actual or potential harm to the children from exposure to the parents’ conflicting religious beliefs; this harmonizes the children’s best interests with the parents’ constitutional rights to free religious exercise. The burden on free exercise is only justified by a compelling state interest and using the least restrictive alternative available; the “actual or potential harm” requirement satisfies the “compelling interest” test. Findings of actual or potential harm must be made with reference to specific evidence and the specific needs of the children involved.

The constitutional right to free exercise does not allow sole decision-making, even if the parents are incapable of joint decision-making, “if leaving each parent free to teach the children about religion independently would not cause actual or potential harm to the children.” …

The trial court made the following findings regarding Rachelle’s and Charles’s religious practices:

6. The family prior to December 10, 2011, had by choice attended Church for All Nations, a conservative Christian Church.

7. Ms. Black’s parents are elders in the Church for All Nations.

8. Mr. Black still attends the Church for All Nations.

9. Ms. Black no longer attends the Church for All Nations.

Rachelle testified at trial that she still remained a Christian, that the only difference between her religious beliefs and those of Charles was that she no longer viewed homosexuality as a sin, and that the children would attend church with Charles during his residential time. While Charles had requested sole decision-making authority for religious upbringing, Rachelle was open to joint decision-making.

The trial court did not expressly state its reasons for allocating sole decision-making to Charles in its written opinion,

[Charles] is clearly the more stable parent in terms of … maintaining their religious upbringing. These children have been taught from the Bible since age 4. I believe it will be very challenging for them to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality.

Because there were no specific findings by the trial court or evidence presented that joint decision-making would cause an actual or potential harm to the children, the trial court abused its discretion by allocating sole decision-making to Charles regarding the children’s religion.

5. Sounds generally quite right to me; see my Parent-Child Speech and Child Custody Speech Restrictions (NYU Law Review, 2006), which also discusses some other such incidents (see, e.g., pp. 730-31). For a case in which a parent was ordered not to engage in anti-homosexuality speech, see this post, about In re E.L.M.C. (Colo. Ct. App. 2004).







Immigration and color-blindness

In a famous 1855 letter, Abraham Lincoln drew a connection between racism and hostility towards immigrants, then epitomized by the nativist Know-Nothing movement:

I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor or degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it ‘all men are created equal, except negroes.’ When the Know-Nothings get control, it will read ‘all men are created equal, except negroes, and foreigners, and Catholics.’ When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty — to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy [sic].”

Lincoln understood the similarity between racial prejudice against blacks and xenophobic hostility to immigrants. That is one of the reasons why he took a favorable view of immigration throughout his career, and opposed efforts to exclude potential immigrants from the US or otherwise discriminate against them. So too did a good many other prominent 19th century opponents of slavery and racial discrimination, such as Frederick Douglass.

Sadly, this passage from Lincoln’s letter has obvious relevance to our own time. A few minor edits can easily bring it up to date:

“When Trump gets control, it will read ‘all men are created equal, except Mexicans, and foreigners, and Muslims.’”

As in the 1850s, the problem is not limited to just a single demagogue and his most committed followers. Thanks in part to the popularity of Trump’s anti-immigrant rhetoric among many Republican voters, other GOP presidential contenders have reversed their previous more open positions on immigration, and moved closer to Trump, including Ted Cruz, and Marco Rubio. When it comes to immigration, much of the Party of Lincoln has abandoned his principles.

I. How Discrimination Based on Place of Birth is Similar to Racial and Ethnic Discrimination.

Even as many of them favor ratcheting up immigration restrictions, most conservatives continue to profess a commitment to color-blindness: the idea that government should not discriminate on the basis of race or ethnicity, even where it might be convenient for it to do so. Many who are not conservative find that ideal appealing, as well.

Why? Primarily because race and ethnicity are morally irrelevant characteristics that people have no control over. Whether you are black, Asian, white, or Hispanic says nothing about your moral worth, or what rights you should have. Most Americans recoil at the idea that we should restrict people’s freedom because they chose the wrong parents.

What is true of race and ethnicity is equally true of place of birth. Whether you were born in the US, Mexico, or China is also a morally arbitrary characteristic that you have no control over, and which should not determine how much freedom you are entitled to. Place of birth is no more indicative of the content of your character than race of birth.

Obviously, place of birth might sometimes correlate with morally relevant characteristics, even though it does not cause them. People born in one nation may, among other things, be more likely to become criminals or terrorists than those born in another. Such claims are often overblown. For example, immigrants actually have much lower violent crime rates than native-born citizens. Still, such negative statistical generalizations about particular immigrant groups may sometimes be accurate.

But the same is true of different racial and ethnic groups. Young black males, on average, have higher crime rates than members of many other ethnic groups. White males are disproportionately likely to become domestic terrorists. It does not follow, however, that we would be justified in imposing severe restrictions on the freedom of blacks or whites as a group. In both cases, it would be deeply unjust to restrict people’s freedom merely because they happen to be members of the same racial or ethnic group as others who have committed various crimes and misdeeds. The same point applies to potential immigrant groups singled out for exclusion merely because others born in the same place have a disproportionate propensity to commit various wrongs.

The government should, of course, apprehend and punish violent criminals, terrorists, and the like – regardless of where they were born. It can also, in some cases, justifiably restrict the movement of people who pose a serious threat to public health (as with carriers of deadly contagious diseases). What it cannot justly do, however, is discriminate on the basis of race, ethnicity, and place of birth in the process of pursuing its other objectives.

Conservatives readily understand that it is wrong for the government act on racial and ethnic generalizations when it comes to, for example, racial preferences in college admissions. Even if members of some racial groups are more likely to have suffered discrimination than others, or more likely to contribute to educational diversity, that generally is not sufficient justification for imposing generalized policies of racial preference.

The same point applies to restrictions on freedom of movement, housing, and employment based simply on where a person happens to be born. And it applies with considerably greater force, because victims of racial preferences in admissions generally suffer only the relatively modest harm of having to attend a lower-ranked college. By contrast, victims of immigration restrictions often suffer life-long confinement to poverty and oppression in the Third World, a far worse fate. If able to stay in the US, but only in “the shadows,” they may be categorically barred from all legal employment and most educational institutions. Nor is this simply a matter of withholding some form of positive government assistance on the basis of a morally arbitrary characteristic. It is using that characteristic to justify the active use of force to prevent immigrants from escaping the terrible conditions many fled from – even in cases where there are Americans who are perfectly willing to engage in voluntary transactions with those migrants, by hiring them or letting them rent housing.

II. How Immigration Restrictions Lead to Racial and Ethnic Discrimination, Even Against Natives.

Immigration restrictions also undermine color-blindness in a much more direct way: they lead to massive racial and ethnic profiling by law enforcement agencies. In late 2014, the Obama administration decided to continue such extensive racial profiling because officials concluded that they can’t effectively enforce immigration restrictions without it. Under the administration’s policy, racial and ethnic profiling by immigration enforcement agencies remains officially permitted over some one third of US territory, where two thirds of the population lives. This is by the far the most extensive racial and ethnic discrimination officially endorsed by the US government. It affects not only immigrants, but large numbers of US citizens who merely look like they might belong to the same racial or ethnic group as illegal immigrants.

Sadly, this ongoing injustice has not gotten nearly the attention it deserves from either liberal critics of racial profiling or conservative advocates of color-blindness. It is one of a number of ways in which immigrants are far from the only victims of immigration restrictions.

I do not claim that people have an absolute right to be free of all racial, ethnic, and place-of-birth discrimination regardless of circumstances. Just as there are extreme cases that can justify restrictions on other important rights if it is the only way to avoid some great evil, so the same is true of various forms of unjust discrimination by the state. In rare cases, a limited use of racial discrimination might be the only way to, say, prevent a massive terrorist attack, or compensate victims of a great historic injustice. But, at the very least, there should be a strong presumption against such discrimination – a presumption that can only be overcome in the kinds of dire cases where we are willing to set aside other important principles, such as freedom of speech and religion. To justify committing such wrongs, the government should meet a heavy burden of proof, requiring it to show both that the policy really is necessary to prevent some great evil, and that it cannot be averted by less unjust means.

Some immigration restrictions might prove to be justified even if subjected to the kind of scrutiny necessitated by the recognition that would-be immigrants are people too, with moral standing equal to our own. But such discrimination should not be resorted to lightly, and it should not be just business as usual, as it all too often is. If we want to protect both immigrants and natives against invidious discrimination, we would do well to relearn the principles that Lincoln understood.







Or is Apple happy to enable a backdoor as long as it makes money from it?

My earlier post on whether Apple’s iPhone can be used legally in the financial industry produced some useful quick responses via Twitter. The short answer seems to be that the iPhone probably can’t be legally used for communicating with financial industry customers without modification, either of the operating system or of the apps that are used. That is, the app and/or the operating system has to allow corporate management access to the contents of the phone, or at least to the “corporate” apps on the phone.

What’s interesting is that Apple seems to have modified its operating system to provide corporate purchasers exactly that. Apple enables something called MDM, or mobile device management. Talking to corporate managers, Apple brags, a bit obscurely, that “because corporate accounts, apps, and content installed via MDM can be managed by iOS, IT has the ability to remove or upgrade them without impacting personal data.” (Emphasis added.) I think that means that the company can go into the iPhones of its employees and read the contents of their communications whenever it wants.

MDM isn’t exactly the most communicative name for the access Apple has created. The company has been insisting a bit counterintuitively that a Justice Department request that it disable a peripheral security feature on a single phone is “a backdoor.” If so, what should we call MDM, which enables access to every account, app, and piece of content installed on an iPhone? A front door?

Actually, I suspect Apple calls it a marketing opportunity. It turns out Apple is happy to create a back door for its phones if that expands its market.

Who would have guessed?

Three further points:

  • Apple does make an effort to segregate the user’s own data from the backdoored corporate enclave it creates with MDM. Whether that really works under stress is an open question.
  • San Bernardino County probably could have enabled MDM on the iPhones it bought, but didn’t. Obviously that was a mistake, though very few enterprises can be expected to anticipate a need for access to the phone after its user commits mass murder.
  • MDM doesn’t entirely solve the problem of allowing iPhone use at work in financial institutions. If a user simply uses his own phone and his own apps, MDM is no help. It looks as though the employer has to rely on “the honor system” (h/t @Susan_Hennessey) or some other imperfect mechanism (“Bans on cell phone use on trading floor, email scanning for references to other apps,” h/t @muchty) to prevent that obvious end-run on the regulation.

UPDATE: I changed “Apple offers” MDM to “Apple enables” MDM, because of ambiguity about how much of the MDM capability is created, rather than enabled, by Apple.