Who Answers for Government Lies?

Andrew P. Napolitano*

Andrew P. Napolitano

Andrew P. Napolitano

Here is a quick pop quiz. What happens if we lie to the government? What happens if the government lies to us? Does it matter who does the lying?

Last year, the Obama administration negotiated an agreement with the government of Iran permitting Iran to obtain certain materials for the construction of nuclear facilities. It also permitted the release of tens of billions of dollars in Iranian assets that had been held in U.S. banks and that the courts had frozen, and it lifted trade sanctions. In exchange, certain inspections of Iranian nuclear facilities can occur under certain circumstances.

During the course of the negotiations, many critics made many allegations about whether the Obama administration was telling the truth to Congress and to the American people.

Was there a secret side deal? The administration said no. Were we really negotiating with moderates in the Iranian government, as opposed to the hard-liners depicted in the American media? The administration said yes. Can U.N. or U.S. inspectors examine Iranian nuclear facilities without notice and at any time? The administration said yes.

It appears that this deal is an executive agreement between President Barack Obama and whatever faction he believes is running the government of Iran. That means that it will expire if not renewed at noon on Jan. 20, 2017, when the president’s term ends.

It is not a treaty, because it was not ratified by a two-thirds vote of the Senate, which the Constitution requires for treaties. Yet the Obama administration cut a deal with the Republican congressional leadership, unknown to the Constitution and unheard of in the modern era. That deal provided that the agreement would be valid unless two-thirds of those voting in both houses of Congress objected. They didn’t.

Then last week, the president's deputy national security adviser for strategic communications, Ben Rhodes, who managed the negotiations with Iran, told The New York Times that he lied when he spoke to Congress and the press about the very issues critics were complaining about. He defended his lies as necessary to dull irrational congressional fears of the Iranian government.

I am not addressing the merits of the deal, though I think that the more Iran is reaccepted into the culture of civilized nations the more economic freedom will come about for Iranians. And where there is economic freedom, personal liberties cannot be far behind.

I am addressing the issue of lying. Rhodes’ interview set off a firestorm of criticism and “I told you so” critiques in Capitol Hill, and the House Oversight and Government Reform Committee summoned him to explain his behavior. It wanted to know whether he told the truth to Congress and the public during the negotiations or he told the truth to The New York Times last week.

He apparently dreads answering that question, so he refused to appear and testify. One wonders how serious this congressional committee is, because it merely requested Rhodes’ appearance; it did not subpoena him. A congressional subpoena has the force of law and requires either compliance or interference by a federal court. Rhodes’ stated reason for not testifying is a claim of privilege.

What is a privilege? It is the ability under the law to hide the truth in order to preserve open communications. It is a judgment by lawmakers and judges that in certain narrowly defined circumstances, freedom of communication is a greater good than exposing the truth.

Hence the attorney/client and priest/penitent and physician/patient privileges have been written into the law so that people can freely tell their lawyers, priests and doctors what they need to tell them without fear that they will repeat what they have heard.

Executive privilege is the ability of the president and his aides to withhold from anyone testimony and documents that reflect military, diplomatic or sensitive national security secrets. This is the privilege that Rhodes has claimed.

Yet the defect in Rhodes’ claim of privilege here is that he has waived it by speaking about the Iranian negotiations to The New York Times. Waiver -- the knowing and intentional giving up of a privilege or a right -- defeats the claim of privilege.

Thus, by speaking to the Times, Rhodes has admitted that the subject of his conversation -- the Iranian negotiations -- is not privileged. One cannot selectively assert executive privilege. Items are either privileged ornot, and a privilege, once voluntarily lifted, cannot thereafter successfully be asserted.

The House Oversight and Government Reform Committee should subpoena Rhodes, as well as the Times reporter to whom he spoke, to determine where the truth lies.

It is a crime to lie to the government when communicating to it in an official manner. Just ask Martha Stewart. One cannot lawfully lie under oath or when signing a document one is sending to the government or when answering questions from government agents. Just ask Roger Clemens. Stated differently, if Rhodes told the FBI either what he told Congress or what he told The New York Times -- whichever version was untrue -- he would be exposed to indictment.

Ben Rhodes is one of the president’s closest advisers. They often work together on a several-times-a-day basis. Could he have lied about this Iranian deal without the president's knowing it?

Does anyone care any longer that the government lies to the American people with impunity and prosecutes people when it thinks they have lied to it? Does the government work for us, or do we work for the government?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Transgender Wars

Richard Epstein*

Richard Epstein

Richard Epstein

During the last several weeks, the culture wars have focused on the heated question of how both educational institutions and employers should treat questions of “gender identity”—and persons who feel their character, demeanor, behavior, and other personal characteristics depart from those associated with traditional sex roles. The matter gained national publicity from the case of 16-year-old transgender student Gavin Grimm of Gloucester County, Virginia, who underwent hormone therapy in preparation for a future sex change operation (the term “gender reassignment” is both non-descriptive and vaguely Orwellian). He—Gavin’s preferred form of address—felt uncomfortable in the female facilities in his school. But some students and parents protested his use of the boy’s facilities. The school sought an accommodation that would allow him to use unisex restrooms open to all students, which he then rejected because they “make him feel even more stigmatized.”

The major objective in these settings should be to tamp down on the level of dispute, not to ramp it up with some larger fight. These accommodations, like all settlements, always leave everyone uneasily feeling that they have lost something they value. But the correct response is to back the school for having made this effort, and not to allow the psychological concerns of one student to trump the feelings and sensibilities of all others, some of whom also suffer from their own psychological distress. It is especially important in these cases to adopt some form of the business judgment rule. When there are hard choices, this rule provides that the institution that seeks to resolve them in good faith gets the benefit of the doubt even from others who disagree with its decision. Over time, decentralized school decisions may lead to some consensus on the proper social response.

But in this case, as so many others, that constructive process was disrupted by a legal intervention. Grimm, working with the ACLU, brought suit against the school for discrimination—and last month, the U.S. Court of Appeals for the Fourth Circuit ruled in Grimm’s favor in G.G. v. County of Gloucester. A divided court decided that the school’s accommodation violated Title IX of the 1972 Education Amendments, which reads: “no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” When passed in 1972, no one ever thought that this statute had anything to say about the proper treatment of transgender students, given that single-sex activities are an essential part of ordinary social life in such matters as athletics and restrooms. Indeed, the regulations under Title IX are replete with accommodations that use a “separate but equal approach” to sex discrimination in schools.

This framework made it is easy for the trial court in Grimm’s case to conclude that Title IX did not address any delicate questions of “gender identity.” After all, it could be regarded as a form of discrimination under Title IX to give transgender students a special option over which restrooms to use if that option is denied to all other boys and girls. Indeed, many earlier cases took that prudential line. But in 2011, Glenn v. Bromby—decided under the related provisions of Title VII of the 1964 Civil Rights Act—held that a firm could not fire a transgender person solely by reason of his or her condition. Glenn did not deal with restroom access, and duly noted a raft of earlier cases that had rejected the view that gender identity was covered by Title VII. Glenn dubiously claimed that these earlier cases were rendered obsolete by the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which held that it was an illegal form of sexual stereotyping under Title VII to deny a woman promotion because she was perceived as “macho.”

The decisive element relied on in Grimm was a “significant guidance document,” issued by the Department of Education’s Office of Civil Rights in 2014, stating in no uncertain terms that:

All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.

Grimm gave this ill-considered fiat substantial deference under the Supreme Court’s 1997 decision in Auer v. Robbins, which allows for the agency to control the interpretation of ambiguous language in its own regulations. Unfortunately, Auer represents a toxic combination of two doctrines of administrative law—the use of guidance and the presumption of deference.

Agency use of these guidance statements marks a wholesale evasion of the basic requirements of the Administrative Procedure Act of 1946. That statute originally required any major innovation under the law to be subject, at the very least, to notice and comment proceedings before putting any regulation into effect. But a guidance upends that procedure by allowing an administrative agency to announce its own views without bothering to go through these processes. Since the guidance lacks the finality of a regulation, it is, under current law, not subject to a facial challenge in court, even when there is a dispute over the proper meaning of a given text. Hence, today the guidance is a hugely coercive procedure that can be challenged only after a party is sued by a federal agency, including the OCR. The guidance thus lets the government secure widespread surrender to its view, without ever having to wage war against its regulatory targets.

Judicial deference to administrative understandings compounds the problem by giving undeserved legitimacy to extravagant misinterpretations of law. Auer, for example, asked whether police lieutenants and police sergeants should be treated as "bona fide executive, administrative, or professional" employees exempt from the overtime provisions of the Fair Labor Standards Act. The “yes” answer should be a no-brainer. The job descriptions of the Los Angeles Police Department, for example, set out a hierarchy that goes from police officer, to police detective, to police sergeant, to police lieutenant. The sergeant’s duties include preparing daily car plan assignments and supervising various patrol officers. The police lieutenant supervises sergeants and patrol offices and “acts as a Commanding Officer in the Captain’s absence.” But the late Justice Scalia held that none of this mattered once the Department of Labor decided that sergeants and lieutenants were hourly employees. Why? Because they were subject to wage reductions for “variations in the quality or quantity of work,” as if they were paid on piecework basis.

Armed with Auer deference, the Fourth Circuit in Grimm trolled through various dictionaries in order to sustain OCR’s definition of sex discrimination under the statute. At this juncture, the wheels came off the bus—not in Virginia, but in North Carolina. The liberal city of Charlotte adopted a general rule of bathroom and locker-room use in schools, which attracted the ire of the Republican North Carolina legislature that hurriedly passed House Bill 2, containing a statement that the “biological sex” is the sex listed on a person’s birth certificate. It then further announced that, for multiple occupancy bathrooms or changing facilities, this biological sex is determinative of the room to be used. That position surely has to be wrong for anyone who has had a sex change operation, where the universal practice has been to the contrary.

If the House Bill 2 represents overreach on one issue, it contains one valuable key provision that has been virtually universally ignored in the press. House Bill 2 also allows for the accommodation offered Gavin Grimm in the form of a single occupancy bathroom or changing room.

In my view, North Carolina’s statute is unwise insofar as it unilaterally imposes the same general policy statewide. But ironically, one point in its favor was that Charlotte made the same mistake when it mandated the adoption of a citywide “gender identity” standard, which exhibited the same collectivist mentality in the opposite direction. But in any event, the reaction to the North Carolina legislation has been, to put it mildly, over the top, and often from people who fail to note the limited reach of the legislation.

Thus the organization Turnout NC denounced the law without mentioning the accommodations explicitly allowed in the bill. A letter from 200 CEOs also condemned the law without noting its limited scope or the explicit accommodations that it allows. What is doubly ironic is that these critics claim the law makes it more difficult for them to do business inside North Carolina. Yet these indignant CEOs fail to note that nothing in House Bill 2 requires any private firm to adopt any policy on restrooms that it finds objectionable. Still, the CEO of PayPal grandly announced that his company had scrubbed plans to open a new facility in Charlotte, without showing any awareness of what House Bill 2 provides.

The flames were further stoked by U.S. Attorney General Loretta Lynch for hysterically “likening the NC Bathroom bill to Jim Crow law.” And true to form, the Department of Justice last week sent an explicit demand letter to North Carolina, telling the state that the law was inconsistent with its general guidance, and thus threatening litigation and the withholding of potentially billions of dollars in federal aid to North Carolina.

More recently, the Departments of Justice and Education issued yet another imperious “Dear Colleague” letter that was long on explicit commands but short on intelligence. It barks out orders like “when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity.” The two Departments further announce that Title IX imposes liability on schools for the creation of a hostile environment, which can easily happen in such a charged atmosphere. It also appears to extend its rules beyond transgendered students when it states “a school may not segregate or otherwise distinguish students on the basis of their sex, including gender identity, in any school activities or the application of any school rule.”

Yet the threadbare reasoning of the government’s position in all of its various letters does not begin to address any of the logistical and social problems that arise if all individual claims for treatment of gender identity have to be treated at face value. Does it mean, for example, that any biological boy may join a girl’s sport team in order to fulfill his gender identity? Needless to say, he EEOC has joined in the fray, so that these rules cover all forms of public and private employment as well.

It is nothing short of a national tragedy that this issue has been so collectivized and polarized. I have long believed the federal government should not have the power to tell states how they should order their internal business, and further, that Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendment Acts both count as vast overreaches of federal authority. The argument has nothing to do with the proper treatment of transgender individuals, or indeed, any and all individuals. Rather, it stems from the simple proposition that any exercise of monopoly power by government leads to massive dangers of political domination, which is bad, no matter which direction it goes.

The situation with private firms is harder to deal with. Acting alone, Harvard can impose its indefensible decree on single-sex final clubs. Letters signed by 200 executives are harder: As an antitrust matter, collective refusals to deal always raise the dangers of concerted action, even when done for social causes. But just because litigation is obviously off the table does not mean that we should greet with indifference the mass attack on the North Carolina law, which reeks of intolerance. This self-righteous man-the-barricades view of political discourse leads to massive incivility that will only further poison social relations in the United States. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

A Perfect Storm

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The bad legal news for Hillary Clinton continued to cascade upon her presidential hopes during the past week in what has amounted to a perfect storm of legal misery. Here is what happened.

Last week, Mrs. Clinton’s five closest advisors when she was Secretary of State, four of whom remain close to her and have significant positions in her presidential campaign, were interrogated by the FBI. These interrogations were voluntary, not under oath, and done in the presence of the same legal team which represented all five aides.

The atmosphere was confrontational, as the purpose of the interrogations is to enable federal prosecutors and investigators to determine whether these five are targets or witnesses. Stated differently, the feds need to decide if they should charge any of these folks as part of a plan to commit espionage, or if they will be witnesses on behalf of the government should there be such a prosecution; or witnesses for Mrs. Clinton.

In the same week, a federal judge ordered the same five persons to give videotaped testimony in a civil lawsuit against the State Department which once employed them in order to determine if there was a “conspiracy” -- that’s the word used by the judge -- in Mrs. Clinton’s office to evade federal transparency laws. Stated differently, the purpose of these interrogations is to seek evidence of an agreement to avoid the Freedom of Information Act requirements of storage and transparency of records, and whether such an agreement, if it existed, was also an agreement to commit espionage -- the removal of state secrets from a secure place to a non-secure place.

Also earlier this week, the State Department revealed that it cannot find the emails of Bryan Pagliano for the four years that he was employed there. Who is Bryan Pagliano? He is the former information technology expert, employed by the State Department to problem shoot Mrs. Clinton’s entail issues.

Pagliano was also personally employed by Mrs. Clinton. She paid him $5,000 to migrate her regular State Department email account and her secret State Department email account from their secure State Department servers to her personal, secret, non-secure server in her home in Chappaqua, New York. That was undoubtedly a criminal act. Pagliano either received a promise of non-prosecution or an actual order of immunity from a federal judge. He is now the government’s chief witness against Mrs. Clinton.

It is almost inconceivable that all of his emails have been lost. Surely this will intrigue the FBI, which has reportedly been able to retrieve the emails Mrs. Clinton attempted to wipe from her server.

While all of this has been going on, intelligence community sources have reported about a below the radar screen, yet largely known debate in the Kremlin between the Russian Foreign Ministry and the Russian Intelligence Services. They are trying to come to a meeting of the minds to determine whether the Russian government should release some 20,000 of Mrs. Clinton’s emails that it obtained either by hacking her directly or by hacking into the email of her confidante, Sid Blumenthal.

As if all this wasn’t enough bad news for Mrs. Clinton in one week, the FBI learned last week from the convicted international hacker, who calls himself Guccifer, that he knows how the Russians came to possess Mrs. Clinton’s emails; and it is because she stored, received and sent them from her personal, secret, non-secure server.

Mrs. Clinton has not been confronted publicly and asked for an explanation of her thoughts about the confluence of these events, but she has been asked if the FBI has reached out to her. It may seem counter-intuitive, but in white collar criminal cases, the FBI gives the targets of its investigations an opportunity to come in and explain why the target should not be indicted.

This is treacherous ground for any target, even a smart lawyer like Mrs. Clinton. She does not know what the feds know about her. She faces a damned-if-she-does and damned-if-she-doesn’t choice here.

Any lie and any materially misleading statement -- and she is prone to both -- made to the FBI can form the basis for an independent criminal charge against her. This is the environment that trapped Martha Stewart. Hence the standard practice among experienced counsel is to decline interviews by the folks investigating their clients.

But Mrs. Clinton is no ordinary client. She is running for president. She lies frequently. We know this because, when asked if the FBI has reached out to her for an interview, she told reporters that neither she nor her campaign had heard from the FBI; but she couldn’t wait to talk to the agents.

That is a mouthful, and the FBI knows it. First, the FBI does not come calling upon her campaign or even upon her. The Department of Justice prosecutors will call upon her lawyers -- and that has already been done, and Mrs. Clinton knows it. So her statements about the FBI not calling her or the campaign were profoundly misleading, and the FBI knows that.

Mrs. Clinton’s folks are preparing for the worst. They have leaked nonsense from “U.S. officials” that the feds have found no intent to commit espionage on the part of Mrs. Clinton. Too bad these officials -- political appointees, no doubt -- skipped or failed Criminal Law 101. The government need not prove intent for either espionage or for lying to federal agents.

And it prosecutes both crimes very vigorously.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Harvard’s Final Clubs Debacle

Richard Epstein*

Richard Epstein

Richard Epstein

Last week, Harvard President Drew Gilpin Faust wrote a public letter on “Single-Gender Social Organizations,” which heralds a brave new social order at Harvard and perhaps elsewhere. The targets of her letter are Harvard’s so-called final clubs—those organizations that are the last, or final, clubs that undergraduates would join before leaving Harvard. These final clubs are not located on Harvard property and they receive no funding of any sort from the University, having been officially dissociated from Harvard in 1984. There are at present 13 of them—six accept only male members; five, only female members. Two formerly all-male clubs, Fox and Spee, are now co-ed after buckling under relentless pressure from Harvard. Some 30 percent of Harvard undergraduates are members of these organizations. It seems clear that there is substantial private demand for these clubs, and, for a period of many years, little or no demand for co-ed social clubs that served these same purposes.

These final clubs enjoy widespread acceptance among their members because some young people prefer to organize their social lives around single-sex organizations. To a classical liberal like myself, these revealed preferences count a great deal, for it would be foolish to insist that a large fraction of this nation’s future elites are so misguided about their own moral and social development that they would take steps to stunt their growth in both these dimensions. But in the eyes of progressives like Faust, these preferences should be dismissed as inconsistent with a bigger vision of a “campus free from exclusion on arbitrary grounds.” When an organization rejects “much of the student body merely because of its gender,” she writes, that “undermines the promise offered by Harvard’s diverse student body.” She then concludes on a paternalist note that these clubs “do not serve our students well when they step outside our gates into a society where gender-based discrimination is understood as unwise, unenlightened, and untenable.”

Faust offered no particulars for her indictment. Rather, she eagerly accepted the recommendations contained in a Harvard College letter, also from last week, by the college dean, Rakesh Khurara, which argues in harsh pernicious stereotypes that the final clubs are the “exclusive preserves of men” and create a power imbalance on campus, making it impossible for Harvard to move forward in the twenty-first century. He twists the knife in deep by insisting that any student who is a member of one of these clubs will be denied positions of leadership “in recognized student organizations or athletic teams,” and will not receive Dean endorsement letters that are needed when applying to prestigious scholarships such as the Rhodes and Marshall awards. Khurara only stops short of insisting that membership in a final club should be grounds for expulsion from Harvard.

The sad episode indicates just how far Harvard has departed from the norms of civility and sensible social discourse, and precisely because it lacks intellectual diversity. One point of immediate irony is that same-sex athletics are very much the norm at Harvard. Perhaps it takes a President or Dean at Harvard to understand the irrelevance of arbitrary sex differences in sports. But both Faust and Khurara never hint at ending all single-sex sports teams, without saying what makes them different from final clubs. It is doubtful that even they think that membership in a single-sex club offers ill preparation for being the captain of a single-sex sports team. They simply imposed these sanction to bludgeon the clubs into submission.

This grand plan is quite a foolish way to train people for their larger roles in life after college. We should urge them instead to gain experience in both single-sex and more open environments, because no matter what the high priests at Harvard decree, virtually all normal people will be required to move seamlessly between both types of environments in their personal and professional lives. Harvard has no desire to encourage a portfolio of diverse activities. Instead, its chosen form of diversity is really a new form of totalitarian excess that limits student choice, insisting that everyone at Harvard dance to the administration’s martial music.

It is evident from the tone of both letters that Faust and Khurara speak with moral certitude on matters of diversity. It is of course sensible for Harvard to decide to open its doors to any and all who want to apply. But it is very intolerant of its leaders to insist that their procrustean model of perfect gender parity is ideal for everyone else. Just because it folded Radcliffe into Harvard does not mean that Columbia should have folded Barnard into Columbia College at that time, instead of going coed as late as 1984. Right now there are still many women’s colleges, and the occasional men’s college, which operate successfully on a single-sex basis. Indeed, if it were not for Title IX, there would probably to this day be many other institutions that would have retained a higher level of single-sex activity.

It is, moreover, all too easy to imagine why at least some people in a diverse society would prefer to be involved in single-sex organizations. The women’s colleges may give their students greater opportunities to assume leadership positions, advance in the sciences, and take an education free of distractions that come whenever young men and women work and live together in close quarters. The single-sex final clubs at Harvard reflect this concern, and it is simply foolish to believe that their large memberships are universally prey to the corruption of character that both Faust and Khurara assume as facts. Faust is obviously troubled by the problem of sexual misconduct, but it is bizarre to think that forcibly integrating both men’s and women’s clubs will ameliorate any risk of sexual assault. Rather than invoking the nuclear option, she could have first raised the problem with the final clubs, letting them seek some sensible accommodation.

The question of sexual assault to one side, neither Faust nor Khurara shows the slightest appreciation of the frequency or value of same-sex organizations in the larger world outside of Harvard, many of which deplore Harvard for its own elitist attitudes on matters great and small. Today, many organizations are single-sex operations. If you type in in women’s fitness on Google, you’ll come up with millions of entries on all-women gyms and training groups. No one makes any woman join these clubs, but it should be painfully obvious that a diverse society lets its members have more choices, not fewer. The new puritans at Harvard are so blinded by their own global vision that they literally find it incomprehensible that any of the young men and women in their charge would want to spend some portion of their lives in all-men or all-women environments, and moreover, might have good reasons for doing so.

The situation is even odder because Harvard’s Faust and Khurara impose the same ultimatum on women’s final clubs as they do on men’s. But given their harsh denunciation of male power, shouldn’t these all-women organizations be welcome as havens and safe spaces free of the male domination, where women can lend aid and support to each other? Sadly Faust and Khurara offer no reason why these advantages should be sacrificed on the altar of gender neutrality.

At this time, it is too soon to say exactly how this unnecessary drama will play out. It seems highly likely that at least some of these clubs will sue Harvard for seeking to tamper in their internal affairs, and it is at this point that the ironies start to run deeper. As urged in my attack on the Title IX Juggernaut, it has always been a mistake for the government to impose its own extravagant views of sexual harassment on educational institutions like Harvard, which happened when its beleaguered Law School entered into a harsh agreement with the Office of Civil Rights. But Harvard is a private institution that should in my view be entitled to make whatever decisions it chooses on matters of its own internal organization, either foolish or wise, no matter how vehemently outsiders like myself object to its prohibitions.

Yet it is one thing to say that Harvard is entitled to act as it pleases, and another thing for Harvard to want to act in self-destructive ways. If Harvard could refuse to admit Jews, Catholics, or Republicans into its student body, should it? Its own standing as a world-class institution would be hopelessly compromised by these overt forms of intolerance, so much so that social sanctions and reputational losses would bring Harvard to its senses before the harm occurred.

This fracas over final clubs is no different. Right now the question is whether these imperfect social sanctions, including alumni refusal to make contributions, could get Harvard to back off its own errant path. I doubt very much that they could. Academics often wear ideological blinders. It is no secret, for example, that conservative and libertarian scholars, particularly young ones, face an uphill path in securing faculty appointments. I hope I am wrong when I suggest that Harvard’s internal committee did not contain a single conservative or libertarian member.

Unfortunately, the wheels may fall off Harvard’s bus from another source. For as Harvard boasts of its forward-looking views on gender discrimination, it faces extensive race-specific demands directed to its various units and initiated by activists who have staged an ongoing occupation of the Harvard Law School lounge. These include blotting out the last vestiges of slavery by removing the Royall seal.

The occupiers’ agenda at Harvard is both strategic and forward-looking. They want a large commitment from the University for increased minority representation on the faculty and in the student body, and for increased resources in various diversity programs. Faust and Khurara invite a similar ploy on sex discrimination. Khurara notes that Radcliffe was, after all, once an all-women’s college, as if that were a sin. There is now a perfect all-purpose cover for a set of top-down interventions that will push Harvard still further over the edge. It takes centuries to build up great institutions, but only years for weak and self-righteous administrators to break them into bits.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Hillary’s Secret Weapon

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Last weekend, Hillary Clinton dispatched her husband, former President Bill Clinton, to offer a defense of her alleged espionage. The espionage allegations against her are that in order to escape public and Obama administration scrutiny, she had all of her emails as secretary of state diverted from a secure government server to a non-secure server in her home in Chappaqua, New York, and, in so doing, failed to protect state secrets in at least 2,200 instances during her four-year tenure.

The essence of her husband’s defense is that the secrets were not secrets when she saw them and the investigation of her is all “a game.”

We know that the FBI is getting closer to Hillary Clinton, because Bill Clinton had not addressed her email issues publicly before last weekend. The defense he offered belies the facts and the law.

He argued that prosecuting his wife over her emails is akin to prosecuting someone for driving a car in a 50-mile-per-hour zone at 40 mph because the police have arbitrarily and without notice changed the speed limit to 35 mph.

The implication in his argument is that Mrs. Clinton’s emails were retroactively classified as confidential, secret or top-secret after she received or sent them and therefore she had no notice of their sensitivity.

His argument is unavailing for two reasons. The first is that it is untrue. Emails are confidential, secret or top-secret at the time they are created, whether marked or not.

The second reason is that Mrs. Clinton signed an oath on her first full day as secretary of state -- after she received a two-hour tutorial from two FBI agents on the proper care and lawful handling of state secrets. In that oath, she acknowledged that she had an obligation to recognize and protect state secrets on the basis of the sensitive nature of the information contained in them -- whether they bore classified warnings or markings or not.

State secrets are materials that, if revealed, could harm the national security of the United States.

Bill Clinton’s speed zone example, if true, would be a profound violation of due process, the foundation of which is notice. In a free society, for a prosecution to be successful, the government must show that the defendant had notice of the behavior expected of her. Hence, changing the speed limit without notice would be a profound violation of due process and fatal to a prosecution for speeding.

His example is not even remotely analogous to Mrs. Clinton’s behavior while secretary of state.

Why did he address this last Saturday?

He probably did so for two reasons. The first is that people in Hillary Clinton’s inner circle from her time as secretary of state have been offered interviews by the FBI. They all hired the same lawyer, and with that lawyer, they are in the process of answering FBI questions. Bill Clinton -- for whom the FBI once worked -- knows that the investigation will soon be at his wife’s doorstep, and he wanted to get her version out to Democratic primary voters.

The second reason for Mr. Clinton’s broadside relates to an obscure but profound admission by the Department of Justice. Here is the back story.

One of the 39 Freedom of Information Act lawsuits brought in connection with Mrs. Clinton’s email scandal was filed recently by Jason Leopold, a reporter for Vice News. He seeks copies of the emails Clinton tried unsuccessfully to wipe clean from her server, as well as copies of communications between the DOJ and Mrs. Clinton.

The DOJ moved to dismiss his lawsuit, and in support of its motion, it filed a secret affidavit with the court, signed by an FBI agent familiar with the bureau’s investigation of Mrs. Clinton. In its brief filed the day before Mr. Clinton made his silly speeding prosecution analogy, the DOJ -- which also once worked for him -- characterized the secret affidavit as a summary of the investigation of Mrs. Clinton. The DOJ argued that compliance with Leopold's FOIA request would jeopardize that investigation by exposing parts of it prematurely.

In the same brief, the DOJ referred to the investigation of Mrs. Clinton as a law enforcement proceeding.

That was the first public acknowledgment by the DOJ that it is investigating criminal behavior -- a law enforcement proceeding -- and it directly contradicts Mrs. Clinton's oft-repeated assertions that the FBI investigation is merely a routine review of the State Department's classification procedures.

Many in the legal and intelligence communities have discounted her assertions because reviewing classification procedures of the State Department is not a function of the FBI, but now we have the government’s own words that its investigation of Mrs. Clinton’s email handling is one implicating law enforcement. Since that late Friday filing, Mrs. Clinton has ceased referring publicly to the FBI probe as an evaluation of the State Department’s security procedures.

Perhaps she should tell her husband what was on that server before she tries to use him as a not-so-secret weapon.

Perhaps she now recognizes how hard-pressed she will be to claim to the FBI or to a jury that she did not know that satellite photos of a North Korean nuclear facility or transcripts from wiretaps of Yemeni intelligence agents’ cellphone calls or the itinerary of the late U.S. Ambassador to Libya Chris Stevens in the days before his murder or true names of American undercover intelligence agents -- all of which were in her emails -- were state secrets.

Perhaps she knows now that this is not a game.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Hidden Virtues Of Income Inequality

Richard A. Epstein*

Richard Epstein

Richard Epstein

There is little doubt that income inequality is one of the great issues of our time. A new front has opened in the battle over whether the richer and the poorer should have differential access to various forms of common facilities.

The New York Times recently ran a front-page exposé of segregation by wealth in the booming cruise business. The article, by Nelson Schwartz, was entitled “In an Age of Privilege, Not Everyone Is in the Same Boat.” The gist of the story is that Norwegian Cruise Line has constructed one of its newest vessels to provide separate luxurious quarters (the ”Haven”) to some 275 elite guests out of the 4,200 total passengers the ship can carry. These guests pay a premium, which in addition to an upgraded cabin, grants them preferential access to the rest of the ship with a simple flash of a gold card.

Schwartz condemns the system as a return to the unfettered privilege of the Gilded Age—the kind of rigid class separation that held sway on the Titanic on its ill-fated maiden voyage more than a century ago. The indictment is not confined to luxury cruisers, but extends to any form of wealth-preference, including first-class fares on airlines or frequent flyer programs that allow those who pay to avoid the lines that everyone else faces. Perhaps the New York Times should take its own medicine and eliminate its tiered pricing, which currently ranges from $195 to $488 a year.

According to Schwartz, there is some disagreement over whether Norwegian Cruise Line has hit on the right strategy from a business perspective. Its competitor, Royal Caribbean International, gives deluxe passengers the same preferred treatment, without conscious physical separation within the ship. Schwartz regards all of these efforts to woo the wealthy as manifestations of the same unprincipled rejection of the norm of social equality. He quotes Thomas Sander, long time director of a Kennedy School program on civic engagement, with this jeremiad: “We are doing a much worse job of living out the egalitarian dream that has been our hallmark.” Schwartz thinks that the onset of the new “velvet rope” separating the haves from the have-nots represents a regrettable turn in American social life, one that mirrors rising income inequality.

Schwartz’s article is long on superiority, but short on analysis. His basic methodological problem is to put condemnation before understanding: he never asks the question of how these markets came to be organized as they are or what, beyond lamentation, should be done about the current state of affairs. The descriptive analysis has to start with the simple observation that tiers of service are fundamental in every area of social and economic life. It is obvious enough that people with greater levels of wealth tend to congregate together. The instinct toward separation applies at all levels of the income scale. Every collective social activity involves the use of common facilities, which are a form of limited-access public good that applies to all persons who purchase private accommodations in the common facilities—e.g., cabins or staterooms on cruise ships, seats on trains or airplanes, or tickets to theaters and sporting events.

 Here’s why. Most people budget their funds to have a uniform level of quality across both the separate and common dimensions of the services they purchase. They do not want to pay for public accommodations that are markedly inferior—or superior—to their private accommodations. It follows therefore that the common elements of service diverge strongly for different classes of customers. This uniform set of individual preferences implies that any voluntary market will seek to satisfy all groups simultaneously by separating out the groups so that each can receive their preferred mix of services. The ensuing separating equilibrium condition does not hold only for the rich. It holds for any differences in income and wealth, which is why there are often more than just two tiers of service available for consumers to choose from. 

As Schwartz acknowledges, private firms (even from egalitarian Norway) recognize the needed degree of differentiation. Yet they also recognize that there are gains from trade by having large facilities that can accommodate multiple tiers of service. There are major economies of scale from running large ships because it allows for improved levels of certain common services, e.g., the engines and navigation equipment that are desired by all regardless of the tier of services they purchase. Thus if Norwegian Cruise Line decided to move its luxury passengers to a separate ship, the quality of service received by all, rich or not, would be worse. The rich would be consigned to a smaller ship with fewer services than they desire, and the less affluent would also have to pay more for inferior services, since the more affluent passengers would not be contributing their funds to the common facilities. The usual conclusion then holds: forced integration of consumers into a single group would make everyone worse off.

This conclusion should come as no surprise. If the removal of the separate tiers of service allowed for better treatment for all passengers, cruise liners would adopt that approach voluntarily as a sure path to profit maximization. There is no conflict between Norwegian Cruise Line and the passengers who flock to its services. The only conflict is with indignant writers like Schwartz who see something vaguely insidious in relationships that they do not understand. But taking anger and offense into account does not improve the social calculus. The proper view of the problem of class differences is as follows: the greater the deviation between the established practices in voluntary markets and the proposed reforms, the higher the likelihood that forced changes will produce large social losses across the board.

And what’s true at sea is also true on land. Consider the provision of housing in a city. Independent of whether individuals prefer small or large housing units, they have preferences in the kinds of amenities and services that their building’s common facility supplies. People living in one-bedroom or studio apartments in expensive developments are willing to pay for 24-hour doormen, concierge services, and gyms just like those people who live in larger units within the same building. If they were not willing to pay for these services, they could move to other facilities that economize on these services, keeping size constant, in order to save on rent. A well-functioning voluntary market will thus have units of different sizes within the same development, occupied by persons with a roughly consistent demand for amenities.

 The situation becomes more ominous with the provision of affordable housing units under a wide range of government mandates. These mandates arise because under modern constitutional law local governments are allowed to grant or withhold building permits, subject to conditions that they deem appropriate for their conception of the general welfare of the larger community. That broad mandate goes far beyond the simple and sensible requirements that new construction be safe for residents and passerbys alike, and it be constructed in ways that allow it to link up seamlessly with key roads, sewers, and utilities. Under modern law, a state or local government can deny a building permit to any developer that does not hold aside some fraction of its units for lower and middle housing, at mandated prices far lower than market rates. 

A moment’s reflection will reveal the two major problems with these affordable housing mandates. The first is that the mandate comes as a command, which increases the cost of housing across the board. The government that imposes the mandate does not have to compensate the developer for the higher costs and lower revenues that come with it. Hence a contraction in the available supply of units will drive up prices across the board. Worse still, the mandate puts the developer in a position where it is no longer easy to supply the desired level of common services to residents who have radically different demands. One class of customers is willing to pay for doormen and service amenities that the other customers are not. 

The usual response to this challenge was to introduce a costly form of separation inside the development by creating a so-called “poor door,” or separate entrance and lobby for the recipients of the affordable housing units. As noted earlier, these separate entrances will have a clear, if uneasy, level of market acceptance because they allow for improved services to all classes of tenants. But by the same token, the open and visible class differences pour hot oil onto the political debates over income inequality. In progressive bastions like New York City, the result is the passage of a new provision in the state’s already comprehensive rent-regulation bill that provides: “Affordable units shall share the same common entrances and common areas as market rate units.” Prospective tenants may choose to opt out of such schemes entirely, by renting from the existing housing stock, thus pushing high rents still higher.

This provision is the surest way to stop the construction of new rental units where they are most needed. The entire economy of affordable housing depends on the ability to use the gains on the market rate units to subsidize the lower rates on the affordable units. Poor doors are not needed in most buildings because the tenants have self-separated according to their level of demand for amenities. But these doors were introduced precisely because they are vital to maintaining sustainable affordable housing projects. Like it or not, the market-rate units will in many instances go for far less if the separate facilities are not maintained. In general, it is most unwise to have hidden cost subsidies to sustain housing, or indeed any other markets.

To people with a modicum of prudence, warning bells should go off when social planners dictate systems of social interaction that are nowhere found in voluntary markets. After all, if we should have common doors, why not mandate that all new apartment units or ship cabins be of the same level of quality to avoid the feared inequities of differential wealth? To anyone aware of basic commercial realities, this proposal marks the end of new construction and innovation in vital markets. But to the modern progressive mind, the greater the deviation from private market standards, the sounder the social program. Which is why New York City’s rental market is, and will remain, a disaster, in which very few new rental units will be added to the existing stock, while existing units will be gobbled up at ever higher rents. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

 

Fruit of the Poisonous Tree

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Would all of our lives be safer if the government could break down all the doors it wishes, listen to all the conversations it could find and read whatever emails and text messages it could acquire? Perhaps. But who would want to live in such a society?

To prevent that from happening here, the Framers ratified the Fourth Amendment, which is the linchpin of privacy and was famously called by Justice Louis Brandeis “the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men.” He wrote those words in his dissent in the first wiretapping case to reach the Supreme Court, Olmstead v. United States, in 1928.

Roy Olmstead had been convicted for bootlegging on the basis of words he used in overheard telephone conversations. Because he had used a phone at his place of work that the government had tapped without breaking and entering his workplace, the high court ruled -- despite the fact that the government had not obtained a warrant -- that he had no right to privacy. Brandeis dissented.

Over time, the Brandeis dissent became the law. The Fourth Amendment, which protects the privacy of all in our “persons, houses, papers, and effects,” was interpreted to cover telephone conversations and eventually emails and text messages. So today, if the government wants information contained in those communications, it needs to obtain a search warrant, which the Fourth Amendment states can only be given by a judge -- and only upon a showing of probable cause of evidence of a crime contained in the communications it seeks.

If the government does not obtain a search warrant and listens to phone conversations or reads emails or text messages nevertheless and attempts to use what it heard or read to acquire other evidence or directly in the prosecution of a defendant, that is unlawful. That type of information is known as the fruit of the poisonous tree.

Evidence procured that is the fruit of the poisonous tree has been inadmissible in federal criminal prosecutions in the United States for the past 100 years and in state criminal prosecutions for the past 50 years.

Until now.

Now comes the super-secret court established by the Foreign Intelligence Surveillance Act, reaffirmed by Congress last year under the so-called USA Freedom Act. Beware the names of federal statutes, as they often produce results that are the opposite of what their names imply; and this is one of them.

Congress has unconstitutionally authorized the FISA court to issue search warrants on the basis of governmental need -- a standard that is no standard at all because the government can always claim that it needs what it wants. The FISA court does not require a showing of probable cause for its warrants, because it accepts the myth that the government is listening to or reading words by foreign people for foreign intelligence purposes only, not for prosecutorial purposes.

Never mind that Congress cannot change the plain meaning of the Constitution. Never mind that the Fourth Amendment protects all people in the United States, American or foreign, from all parts of the government for all purposes, not just criminal prosecutions.

Yet the FISA court still grants general warrants -- look where you wish and seize what you find -- exposing our innermost thoughts to the prying eyes of the intelligence community in direct contravention of the Fourth Amendment.

Enter the USA Freedom Act. One of its selling points to Congress was that it would permit the FISA court to appoint a lawyer to challenge hypothetically some of its behavior. The court recently made such an appointment, and the lawyer appointed challenged the policy of the National Security Agency, the federal government’s domestic spying agency, of sharing data it acquires via the unconstitutional FISA warrants with the FBI. She argued that the data sharing goes far beyond the stated purpose of the FISA warrants, which is to gather foreign intelligence data from foreign people, not evidence of domestic crimes of anyone whose emails might be swept up by those warrants.

The challenge revealed publicly what many of us have condemned for years: The NSA actually makes its repository of raw data from emails and text messages available for the FBI to scour at will, without the FBI's obtaining a warrant issued by a judge pursuant to the Fourth Amendment.

In an opinion issued in November but kept secret until last week, the FISA court rejected the hypothetical challenge of its own appointee and ruled that the NSA could continue to share what it wants with the FBI.

There are several problems with this ruling. The first is the hypothetical nature of the challenge. Federal courts do not exist in a vacuum. They do not render advisory opinions. They can only hear real cases and real controversies involving real plaintiffs and real defendants, not hypothetical ones as was the case here.

The whole apparatus of hypothetical challenge and hypothetical ruling is constitutionally meaningless. It was the moral and legal equivalent of a law school moot court oral argument. Yet federal and soon state law enforcement will interpret it as giving cover to the NSA/FBI practice of data sharing, which is clearly unconstitutional because it is the use of fruit from a poisonous tree.

FISA and the USA Freedom Act were enacted under the premise -- the pretense -- that the data collected under them would be used for foreign intelligence purposes only so that attacks could be thwarted and methods could be discovered. Yet the use by the FBI of extraconstitutionally obtained intelligence data for ordinary criminal prosecutions defies the stated purposes of the statutes and contradicts the Fourth Amendment.

If this is keeping us safe, who or what will safeguard our freedoms? Who will keep us safe from those who have sworn to uphold the Constitution yet defy it?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Title IX Juggernaut

Richard A. Epstein*

Richard Epstein

Richard Epstein

Major miscarriages of justice often stem from unsound judicial and administrative procedures. Consider the story of Grant Neal, a student on an athletic scholarship at Colorado State University-Pueblo. Neal was suspended for sexual assault after he had consensual sexual intercourse with an unnamed woman. He has now filed suit to challenge that suspension, both against the CSU-Pueblo and the United States Department of Education and its Office for Civil Rights.

He should win, and for good reason. All legal actions begin with complaints, usually from a purported victim. But Neal’s case was different. The charge was brought against him by a “peer” of the woman involved, who, according to the allegations in the complaint, denied that she had been raped. The purported victim told the school investigator: “He’s a good guy. He’s not a rapist, he’s not a criminal, it’s not even worth any of this hoopla.” That should have put an end to the entire matter. Nonetheless, CSU-Pueblo has suspended Neal as long as his alleged victim remains on campus. The stigma of the sanction makes it impossible for him to transfer anywhere else. It is a classic case of defamation by public action, for which recourse is all too difficult to obtain.

The university’s actions were heavily influenced by the Kafkaesque rules announced in the well-known and highly controversial Dear Colleague letter issued by the Department of Education’s Office for Civil Rights (OCR) in 2011 (I have sharply criticized its procedures for dealing with cases of sexual harassment elsewhere). The letter uses shaky data to claim that sexual harassment is a serious problem on campus, and it insists that schools handle cases of it aggressively. But the OCR’s guidance violates the fundamental tenets of due process that are urgently needed in a criminal or administrative enforcement proceeding, where state power is at its greatest. Due process guarantees are far older than our country, and they were put into place to check overweening executive power. The standard rules require at a minimum that people be given notice of the charges that they face, and an opportunity to defend themselves against those charges before a neutral tribunal. The OCR, however, advocates that a mere preponderance of evidence—rather than clear and convincing evidence—is all that is required to impose heavy sanctions on an alleged aggressor after a hearing. And during such hearings, cross-examination is discouraged.     

What is striking about the OCR’s letter is not just its imperious tone, but also its extravagant interpretation of Title IX, which was added to the Civil Rights Act in 1972. Its key provision reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Thereafter the statute identifies different types of exempt educational institutions, such as those “with contrary religious tenets” and the military academies and the merchant marines. Title IX also excuses fraternities, sororities, boy or girl conferences, father-son or mother-daughter activities, and single-sex dorms from its scope, since few argue that these communities practice insidious discrimination.

This raft of qualifications is important for two reasons. First it establishes that Title IX’s prohibition is directed towards the educational institutions themselves, not to their enrolled students. It is therefore a big stretch to apply it in any action between two students that was not authorized by the institution in question, as is the case with sexual assault. The provision clearly does not cover sexual harassment, a phrase that was not even used at the time. Instead, sexual misconduct was left to internal disciplinary procedures supplemented in serious cases by criminal prosecutions.

Second, nothing whatsoever in Title IX contemplates the creation of the vast oversight apparatus outlined in the Dear Colleague letter, whose detailed commands to educational institutions to eliminate a hostile sexual environment require them to keep the “alleged perpetrator from having any contact with the alleged victim.” The letter also goes far beyond a statutory prohibition by demanding every institution provide counseling, medical and academic support, and escort services to the complainant. It then calls for another round of elaborate protections to be given to the student body as a whole, and requires appointing a Title IX coordinator to hold extensive training programs and sessions for faculty and students “in processing, investigating, or resolving complaints of sexual harassment or sexual violence.” However, the letter does not advocate providing a shred of protection or compensation to the alleged perpetrator who is found innocent.

Neal is right to attack the system as implementing a regime that discriminates against men. But his deeper criticism is of the entire regulatory process as implemented by OCR. Under Title IX any agency “is authorized and directed” to issue “rules, regulations, or orders of general applicability” which do not “become effective unless and until approved by the President.” But in this case, the OCR relies on the now common institutional ploy of issuing “guidance” to various parties without going through any of the procedural hoops that are generally required for issuing regulations in compliance with the Administrative Procedure Act. Instead the OCR letter contains the standard boilerplate that assures its readers that there is nothing in the guidance that “adds to” the existing law and regulations, but only “provides information” as to how these are to be implemented.

But the letter is deceptive on this point. It notes that the regulations that implement Title IX are found in Title 34 of the Code of Federal Regulations, Part 106. That document, though, does not mention the word “harassment” even once. Nor do the Title IX regulations discuss any of the remedial practices outlined in the Dear Colleague letter. It is preposterous to treat the 2011 guidance as anything short of a law unto itself.

More ominously, the entire OCR approach represents a complete, if tacit, revolution in our system of administrative procedure that was put into place under the 1946 Administrative Procedure Act. The Act sought to provide structure to the role of administrative agencies that had been vastly expanded during the New Deal, when the Supreme Court acquiesced to a legal regime that gave Congress virtually plenary power over vast areas of the economy, with little explicit protection of the economic liberties and associational freedoms of various private institutions.

There were two key elements of this system. The first was that all questions of law were to be resolved not by any individual agency, but by the courts under Section 706 of the Act. The second was that the implementing regulations normally had to, at a minimum, go through “a notice and comment proceeding” by which the public had a chance to comment on proposed regulations before they were put into effect.

But over the last 70 years, this APA regime has crumbled for two unfortunate reasons. First, the Supreme Court gave agencies far too much leeway by announcing that it would defer to their interpretations of their own rules, first in Skidmore v. Swift (1944) and later in Chevron v. Natural Resources Defense Council, Inc. (1984). As applied to the OCR, this line of decisions is critical because it means that at no point in the initial process is there any judicial oversight to the problem of how to define the all-critical phrase in Title IX of “be subjected to discrimination” by an educational institution.

Next, the situation gets worse because the guidance represents a complete circumvention of the notice and comment process. As I have explained in far greater detail elsewhere, the District of Columbia Circuit Court during the 1970s twisted the 1946 APA by requiring agencies to give exhaustive disclosure of all the sources on which they rely or else they will face the wrath of appellate review. The invocation of the guidance, nowhere mentioned in the APA, became the all-purpose agency response to judicial overreaching, with disastrous consequences of its own. Under the new regime, the OCR and other agencies simply state that none of the rules that they announce are binding. Yet, in the next breath, they announce that the agency will follow these rules in its own activities. By saying that the rules are not binding, the agency is then able to claim that no party has a power to challenge them in court because they do not constitute “final agency action” under the APA.

At this point, private parties have every incentive to cave. They can go ahead with activities that are not in compliance with the guidance, though they will risk administrative enforcement, knowing full well that under the Chevron doctrine the courts defer to the agency on the interpretation of particular provisions so long as there is an ambiguity in the statute. So good luck to any institution that seeks to argue that sexual harassment is not covered by Title IX, despite its absence from the statute and the regulations thereunder. The entire roof can fall in if federal funds can be withheld from various university activities and if private individuals can now sue in federal court for alleged breaches of their statutory duties. Given that statutory club, the risk/reward calculation is too severe for even the hardiest institution to withstand the provisions of the Dear Colleague letter.

In 2014, Harvard Law School entered into a lopsided settlement agreement with the OCR, which required the school to “consider the effects of off-campus conduct when evaluating whether there is a hostile environment in a University program or activity”—as if Harvard has, or should have, any control of the activities that its adult students engage in on their own time. Harvard also agreed to develop new procedures to deal with harassment policies that are likely to prove more one-sided than those in effect. It is hard to criticize Harvard for the wholesale capitulation; the settlement takes into account law as it is, not as it should be. And the same fate likely awaits the University of New Mexico in the wake of an exhaustive investigation by the Department of Justice that resulted in stern disapproval of UNM policies that also do not address sexual harassment. But that omission did not prevent the Department of Justice from citing non-compliance with 2011 guidance as if it were authoritative law. No doubt UNM will capitulate as well.

There is little that any private or public university can do itself to stop the Title IX juggernaut, when even the federal government’s power to investigate imposes massive costs on private institutions, both in dollars and in reputation. The much-needed legal reforms must be done at the ground level so as to emphatically upend the coercive power of any guidance. The simplest way to do this is for courts to back off their current view that no individual can challenge a guidance on its face before facing its application. Any party that is subject to a guidance should be in a position to demand “de novo” review of the guidance, as I have argued elsewhere, which affords no deference to any procedures down below.

Government agencies are all too quick to presume that private parties are bad actors that need to be subject to stringent and relentless oversight. But as the sad saga of Grant Neal demonstrates, the second and more urgent truth embodies what Lord Acton wrote in 1887: "Power tends to corrupt, and absolute power corrupts absolutely.”

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The President, the Court and Immigration

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

In 2014, President Barack Obama signed 12 executive orders directing various agencies in the departments of State, Justice and Homeland Security to refrain from deporting some 4 million adult immigrants illegally present in the United States if they are the parents of children born here or legally present here and if they hold a job, obtain a high-school diploma or its equivalent, pay taxes and stay out of prison.

Unfortunately for the president, the conditions he established for avoiding deportation had been rejected by Congress.

In response to the executive orders, 26 states and the House of Representatives sued the president and the recipients of the orders, seeking to prevent them from being enforced. The states and the House argued that the president effectively rewrote the immigration laws and changed the standards for the deportation of unlawfully present adult immigrants.

The states also argued that because federal law requires them to offer the same safety net of social services for those illegally present as they do for those lawfully present, the financial burden that the enforcement of those orders would put upon them would be far beyond their budgetary limits. Moreover, they argued, enforcement of the president’s orders would effectively constitute a presidential command to the states to spend their own tax dollars against their wishes, and the president lacks the power to do that.

In reply, the president argued that the literal enforcement of the law creates an impossible conundrum for him. He does not want to deport the parents of American children, as that destroys families and impairs the welfare of children; and he cannot deport children who were born here, as they are American citizens. Hence his novel resolution.

The case was filed in Texas, where a federal district court judge agreed with the states and signed an order that prohibited the feds from enforcing the president’s orders, pending a full trial. The feds appealed.

The U.S. Court of Appeals for the 5th Circuit in New Orleans upheld the injunction against the president. In so doing, it agreed with the states that the financial burden on them that would come from the enforcement of these executive orders would be unconstitutional. It also agreed with the House of Representatives that the president exceeded his authority under the Constitution and effectively rewrote the laws.

This week, the Supreme Court heard the feds’ appeal. Because the seat formerly occupied by the late Justice Antonin Scalia for 30 years is still vacant, the court has just eight justices -- for the most part, four conservatives and four liberals. A tie vote in the court, which appears likely in this case, will not set any precedent, but it will retain the injunction against the president. The most recent time this happened was 1952, when the court enjoined President Harry Truman from seizing steel mills during the Korean conflict.

Though the issue here is immigration, the constitutional values underlying the case are more far-reaching. Since the era of Woodrow Wilson -- accelerated under Franklin D. Roosevelt, enhanced under Lyndon B. Johnson and brought over the top under George W. Bush -- Congress has ceded some of its powers to the president. It has enabled him to borrow unlimited amounts of money and to spend as he sees fit. It has looked the other way when presidents have started wars, arrested Americans without charge or trial and even killed Americans.

Can Congress voluntarily give some of its powers to the president, either by legislation or by impotent acquiescence when the president takes them?

In a word, no.

The purpose of the division of powers -- Congress writes the laws, the president enforces the laws and the courts interpret them and decide what they mean -- is to preserve personal liberty by preventing the accumulation of too much power in one branch of government.

The 26 states and the House told the Supreme Court this week that the president is enforcing the laws not as Congress wrote them but as he wishes them to have been written, because he actually directed officials of the executive branch to enforce the versions of the laws that he rewrote instead of the laws on the books.

That arguably violates his oath of office, in which he agreed that he would “faithfully” enforce all federal laws. We know from his notes that James Madison, when he drafted the presidential oath, insisted that the word “faithfully” be inserted so as to impress upon presidents their obligation to enforce laws even if they disagree with them.

During oral argument in the court this week, there was a bizarre exchange over terminology that the president used in his orders. In a weird series of questions, Chief Justice John Roberts Jr. asked whether the president's executive orders could be salvaged constitutionally by excising or changing a few words. This was improper because it treated an executive order as if it were a statute. It is not the job of the court to find ways to salvage executive orders as it is to salvage statutes, because the Constitution has given "all legislative Powers" to Congress and none to the president.

Statutes are presumed to be constitutional. Executive orders that contradict statutes are presumed to be unconstitutional, and the court has no business trying to save them.

All presidents from time to time have exercised discretion upon individuals when it comes to enforcing laws that pose hardships. But none has done so for 4 million people, and none has written substitute laws of his own making. Until now.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Climate Wars Get Ugly

Richard Epstein*

Richard Epstein

Richard Epstein

During this polarizing presidential election campaign, people seem to be more divided than ever on policy matters—a point that is especially evident in the contentious disputes over climate change, where opposing sides are now pitted against each other in litigation.

On the one side of the climate debate are the “alarmists.” To this group, the only question is what should be done to contain the problem of climate change. To be sure, there is ample evidence of climate change, and even some evidence showing that some fraction of it is caused by humans. But from this modest claim, one cannot infer that all or even a majority of this change is attributable to the use of fossil fuels, or that any and all temperature increases carry with them a threat to the natural world. But these alarmists, skeptics claim, exaggerate the supposed threat of global warming to bring an end to the fossil fuel industry and force excessive and premature reliance on expensive and unreliable solar and wind energy.

On the other side are the “deniers,” who dare to ignore the well-established truth that climate change is occurring. To them, the claim that 97 percent of climate experts believe in man-made global warming is wholly misleading, if not downright fraudulent. After all, scientists who agree that humans contribute to global warming could have huge disagreements on the source, magnitude, and consequences of the effect. Understanding the climate change literature requires some heavy legwork to take into account the interactive effects of human actions and natural events.

The climate skeptics have a point. An incident from a decade ago shows how tricky the analysis of the science can get. Professor Naomi Oreskes, then at the University of California, analyzed some thousand papers on global warming and concluded that over 75 percent of them backed the view that global warming was largely attributable to human intervention. But when Dr. Benny Peiser of Liverpool University looked at the same data, he concluded that only one-third could be read to support the consensus view, and that, of those, only one percent did so explicitly. Oreskes’s paper has been cited from President Obama on down while Peiser’s paper has been rejected not because it was wrong, but because its conclusions were, so it was said, already widely known. More recent studies in line with Peiser’s have been met with a similar skeptical response.

In principle, it should be possible to separate the scientific issues from the political ones. But in today’s overheated political environment, that is difficult to do. The latest example of the politicization of climate change comes via twenty state Attorney Generals, led by New York State Attorney General Eric Schneiderman, who are bringing civil and criminal legal actions against ExxonMobil. A similar course of action has been proposed by Rhode Island Senator Sheldon Whitehead, who advocates investigations of fossil fuel companies for possible violations of the civil and criminal law.

To folks like Schneiderman, progressive forces of good must vanquish the reactionary forces of evil, like ExxonMobil. In articulating his view at a press conference recently in New York, Schneiderman starts from a position of legal strength because the 1921 New York Martin Act, passed to deal with financial manipulation, gives the state Attorney General exceptional powers to sue to stop fraudulent behavior in financial markets. The distinctive feature of the law is that it dispenses with the need of the New York Attorney General to prove three of the five elements of common law fraud—scienter (knowledge), reliance and damages—so that all that is left to prove is a false statement of some material fact.

Yet even the Martin Act has its limitations. Some material false statements are easy to spot: consider the CEO who publicly states that his corporation has gold in its safe when the safe is empty. But it is a very different matter to claim that arguments about the complex causes of the current climate trends, and projections of future climate, are “facts” that can easily be branded as false. The usual way in which to hash these matters out is to have an intelligent debate on the pros and cons of each side. And a debate over these matters should receive the highest level of constitutional protection, given that it would be about finding the truth, and using that information to guide political action. The Martin Act aside, a theory of freedom of speech that denies an opportunity for scientific and political debate restricts the core of “high value” speech that is entitled to constitutional protection. Given its endless set of interlocking presumptions, the Martin Act may well be unconstitutional on its face.

Yet Schneiderman does not see the world that way. In his view, “The First Amendment, ladies and gentlemen, does not give you the right to commit fraud.” The Martin Act conveniently gives the New York Attorney General enormous leverage by allowing him to speak out of both sides of his mouth. In court, he can take advantage of the expansive liability under the Act. But in public discussions, he can brand the companies he opposes as fraudulent.

The most notable attendee of Schneiderman’s press conference was Al Gore, who insisted that Hurricane Sandy was in part caused by climate change—and, specifically, by abnormally high temperatures over the Atlantic Ocean. But there have been major hurricanes for decades, if not centuries, so it is unclear if the natural variability in weather could explain this particular event. In any case, the attempt to infer from long-term climate trends a causal role for particular weather events is deeply problematic.

Gore also attracted attention by saying, “temperatures are breaking records almost every year now. 2015 was the hottest year measured since instruments had been used to measure temperature. 2014 was the second hottest. 14 of the 15 hottest have been in the last 15 years.” But note that there are no actual temperature figures in this statement, probably because temperature increases have plateaued, albeit at a high level, over the past 18 years, notwithstanding substantial increases in carbon dioxide emissions.

Indeed, one troublesome part of this debate is the weak correlation between temperature increases and the rise in carbon dioxide concentrations. Data presented by climate scientist John Christy shows that the standard models have not done well against actual data for the past 37 years. These climate models have predicted temperature increases three-fold that of those that have been observed, and the greatest errors in the models were where the increases in carbon dioxide concentrations were the largest. Models, as Christy warned, “are properly defined as scientific hypotheses or claims—model output cannot be considered as providing proof of the links between climate variations and greenhouse gases.” That is especially true for models whose predictions have been falsified over a forty-year period. It seems even clearer that these models should never be used as the basis of criminal prosecutions or civil investigations.

Which brings us back to ExxonMobil. Shortly after the 20 Attorney Generals met in New York to renew their pledges against climate change, Claude Earl Walker, Attorney General of the United States Virgin Islands, hired the crack law firm of Cohen Milstein to mount a huge civil investigation of ExxonMobil’s activities in the area of climate change. The suit was especially piquant since ExxonMobil does no business in the Virgin Islands. The gist of the charges was that ExxonMobil systematically misled the public over the past forty years in order to improve its ability to extract oil and gas around the globe.

A moment’s reflection reveals how bizarre this fraud suit is. First, it is unlikely that the company adopted any kind of consistent policy over a forty-year period. Second, it is difficult to believe that policymakers have been misled by the company’s alleged misrepresentations. For years now, the opponents of fossil fuels have denounced ExxonMobil and other companies for their perfidy—and these firms have been under close scrutiny as a result. It is odd to think that any corporate scheme could have duped political leaders who were inundated day after day with information intended to expose the falsehoods that ExxonMobil is said to have perpetuated.

In this connection, moreover, I am somewhat unhappy that the ExxonMobil defense rests in part on the view that it has cooperated with government officials in dealing with global warming. That may well be true, but it is also beside the point for the First Amendment analysis. The company is entitled to express its own views, even if they are in opposition to the government’s. Nonetheless, to its lasting credit, ExxonMobil has chosen to counterattack. Normally, the demands for discovery, no matter how onerous, are met with a variety of defensive motions. But in this instance, ExxonMobil took to the offense by bringing its own action for declaratory relief in Texas State District Court, in which it insisted that the entire effort by the Virgin Islands (and its lawyers) ran afoul of a variety of constitutional guarantees, including those involving freedom of speech, protection against unreasonable searches and seizures, and violations of procedural due process.

The common theme behind these defenses is that this sprawling issue is not amenable to litigation, but only to debate. It is simply impossible to have a fair debate on any question if one side to the dispute is able to haul its opponents into court with potential civil or criminal litigation. Ominously, for example, Walker is also going after think tanks. He served a subpoena to the Competitive Enterprise Institute, demanding that it turn over a large collection of documents relating to its climate change work between 1997-2007, which is done clearly with the desire to sniff out potential criminal activity from an organization that has published a number of powerful critiques of government action. If this is not a violation of free speech, then I don’t know what is. Climate change may be real, but the First Amendment should not be pushed aside by the high political theater of ideologues like Eric Schneiderman and Charles Earl Walker.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.