Category: Uncategorized

Florida Attorney General James Uthmeier has threated to withhold state funds from Catholic schools who fail to offer students religious exemptions from vaccine requirements. The Florida Conference of Catholic Bishops eviscerated (in a kind, clerical way) Uthmeier and his request.

Uthmeier appears surprised that church autonomy extends beyond the right to fire ministers or limit who they work with for adoptions. It includes the right to adhere to and enforce all religious teachings that run contrary to the policy preferences of government and government officials (even government officials who self-identify as learned co-religionists).

VthePeople, a conference on calling a new Federal Constitutional Convention, will be held at Harvard Law School on October 2-3. Information (including the impressive list of participants) can be found here.

My 91-year-old mother loves watching Turner Classic Movies (TMC). Visiting her today, the movie was The Male Animal (1942), a comedy about the meaning of masculinity in a battle among an English professor (Henry Fonda), the university Board’s obsession with the football team and building a new stadium, and the prof’s wife’s attraction to the former football star who returns to campus for the big game. The movie adapts a 1940 James Thurber play.

Buried in the story is the Board and university administration targeting lefty professors. That includes threatening to fire the Fonda character, who wants to include in a lecture on non-professional-but-important writings Bartolomeo Vanzetti’s statement made shortly before his execution. The arguments and threats against reading the words of an anarchist in class could have come–verbatim– from the mouths of Linda McMahon, Ron DeSanstis, Greg Abbott, or any modern censor. Fonda’s defense of profs’ right and obligation to teach what they believe proper and of students’ need to hear and learn all ideas could have come from any 21st-century defense of academic freedom.

And although the prof wins in the end–the students carry him out of the classroom on their shoulders to celebrate free speech after he reads the Vanzetti statement in class–we have the same battles with the same language a century later.

Take the whistleblower complaint by several career DOJ attorneys working with the Task Force to Combat Anti-Semitism as the equivalent of a complaint–one party’s version of events. But everyone has long suspected much of what it says–the government ignored Title VI procedures, did not (in many/most cases) have factual bases or evidence of actual Title VI violations, ignored that much of the incidents involved protected speech, and cares less about protecting Jews than about using them to attack what it (for now) sees as the larger enemy.

Shame on every university that caved. Shame on every university considering caving even with this new information. And shame on the AAU leadership that drafted “Compact 2.o” that handed the administration the latest weapon that universities (including mine and the rest of the Florida State University System) are racing to enter.

Read this. No words to describe how despicable these people are.

I’m not sure if I will write about Title IX in my Birch Bayh book. But I have noticed some interesting points about the evolution of Title IX into canon.

First, the statute did not settle into its present form until Congress passed the Civil Rights Extension Act in 1988 over President Reagan’s veto. This statute, among other things, overturned the Supreme Court’s narrower reading of Title IX from the 1984 Elk Grove case.

Second, until 2025, no Republican President praised Title IX. Bill Clinton and Barack Obama did, but not George H.W. Bush, George W. Bush, or Trump I.

Third, Trump II is praising Title IX to reject transgender claims. You might say that this is the final stage of canonization (when both parties are on board).

Attorneys General used to argue cases in the Supreme Court. Back in the day, AG’s argued the most important cases and, by tradition, were not interrupted by the Justices. (That would never fly now, of course.). Later, the norm evolved such that an AG would argue one case before the Court. But this stopped in 2008 with Michael Mukasey.

AGs should be encouraged to argue at least one Supreme Court case, even if it’s not one of the more important ones. It would give the Justices an opportunity to interact with that person professionally. It would also remind the AG that he or she is an officer of the court as well as an executive officer.

Further update to this: The students sued, represented by the Florida ACLU. They challenge future enforcement of the FIU reg prohibiting indoor protest, as well as the university decision to suspend them under that rule.

Two things of note:

• They argue that the indoor-protest regulation is content-based because it treats protest different than other speech, such as commercial speech (and activities such as tabling). This is interesting because FIU’s position throughout this controversy has been that it can enforce time, place, and manner restrictions. But T/P/M restrictions must be content-neutral.

• As I have discussed, a different group of students facing university sanction for their speech attempted to sue, but the federal court abstained under Younger, deferring to university proceedings (and state judicial review of those proceedings). What does this mean for this ex post challenge to a university proceeding? Does Younger require the students to appeal the university discipline and pursue state litigation, rather than heading to federal court? Does preclusion (if not abstention) apply? I am trying to work this out.

We are coming up on the 40th anniversary of the Bork hearings. It strikes me that we are due for a revisionist account of that event. No book has been written about the hearings in more than 20 years.

Fortunately, you can just watch C-Span’s gavel-to-gavel coverage from 1987 (chaired by a much younger Joe Biden). Thus, any new work would be analytical rather than investigative.

UPDATE: For instance, Chief Justice Burger (then retired) testified for Bork. That must be the last (and perhaps the only) time that a Justice testified in the confirmation hearings of a nominee to the Court.

Suppose I said that there is a constitutional practice that dates back to the Nixon Administration that is inconsistent with the practice in the first century of our history and not on four points with the text. Your initial reaction would probably be that this is on shaky ground in the current jurisprudential climate.

Now let me present with the Saxbe Fix, named after Attorney General William Saxbe and dating to 1973. Article I, Section 6 states:

No Senator or Representative shall, during the time for which he was elected, shall be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall shall have been increased during such time . . .”

The Saxbe Fix is that a member of Congress appointed to an existing civil office for which the salary was increased during that person’s term can serve in that office so long as that person’s salary is the amount that predated the member’s term. In practice, this matter mostly for Senators appointed to the Cabinet due to their longer terms. Examples besides Saxbe include Hillary Clinton in 2009, Lloyd Bentsen in 1993, and Edmund Muskie in 1980.

Would a future Saxbe Fix official survive in office if someone had standing to sue? I’m not sure. The textual provision is pretty clear, and the Saxbe fix is a relatively new innovation (though it was actually done first in 1909 and should really be called the “Knox fix” after Philander Knox).

In the spirit of the Kennedy Center’s new name (“Restored and Renovated by President Donald J. Trump”), I think some other name changes are in order:

Notre Dame Cathedral, Restored and Renovated by President Macron.

St. Peter’s Basilica, Restored and Renovated by Michelangelo.

The White House, Restored and Renovated by President Truman.

The Trump Taj Mahal, Restored and Renovated by Nobody.

Announcement from SEALS Board.

Russ made the SEALS and the SEALS Annual Meeting into what it is–an engaging and intellectual academic conference that offers opportunities to a broad range of scholars that also allows people to have fun with their families.