The Volokh Conspiracy

Congress’s inquiry into IRS abuses has now expanded beyond the hounding of domestic-policy conservative groups to Israel related ones. In a letter today the Chairman and minority leader of the Ways and Means Committee demand information on whether the agency “undertook special reviews of organizations whose missions involve Israel” and whose activities “contradict or are inconsistent with the Administration’s policies.” Will this be within the scope of the Justice Department investigation?

Again, if the IRS did so, it was only doing what the New York Times (and Peace Now and J Street) told it to.

The Acting Commissioner appears for a hearing on Friday (after the Jewish holiday of Shavuot).

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

 

On Tuesday, the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.” Senator Dick Durbin (D-Ill.) is Chair of the Subcommittee, and Senator Ted Cruz (R-Texas) is the Ranking Member. The Subcommittee has solicited letters from the public. My letter is below.

—–

Feb. 8, 2013

Dear Senator Cruz:

I am submitting this letter for the Feb. 12, 2013, Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.”

To begin with, the Subcommittee should acknowledge that crime reduction policy has been a great success in the United States in recent decades. For example, in the early 1980s, the U.S. homicide rate was more than 10 per 100,000 population. Today, that rate has fallen by over half, to under 5. This is comparable to the early 1960s. Overall rates of violent crime have also fallen sharply since their peak of several decades ago.[1]

There are many causes for this progress. Perhaps one of them is that today, 41 of the 50 states respect the constitutional right to bear arms, so that a law-abiding adult can obtain a permit to carry a concealed firearm for lawful protection, or even carry without a permit in a few states. In contrast, in the early 1980s, only about half a dozen medium or small states provided a fair system for licensing the carrying of firearms.

Second, the exploitation of the Newtown murders as an occasion to impose a plethora of new anti-gun laws is unwise. Professor Gary Kleck, of Florida State University, is by far the most eminent worldwide scholar on quantitative data about firearms, and the effect of firearms laws. His book Point Blank: Guns and Violence in America was the winner of the Michael J. Hindelang Award of the American Society of Criminology, for “the most outstanding contribution to criminology” in a three-year period.

Kleck’s 2009 article “The worst possible case for gun control: mass shootings in schools” [American Behavioral Scientist 52(10):1447-1464] explains why gun control laws enacted as part of an inchoate desire to “do something” after an atrocious crime such as a mass murder in a school are particularly unlikely to prevent future such crimes. Rather, the “do something” anti-gun laws typically amount to an expression of rage against guns or gun owners, and fail to make children safer.

Regarding some particular proposals that have been raised, as alleged responses to Newtown:

The “assault weapons” issue is one of the most long-standing hoaxes in American politics. The guns suggested for prohibition do not fire faster, nor do they fire more powerful ammunition, than guns which are not singled out for prohibition. External features such as telescoping stocks, or forward grips, make it easier for a user to control the firearm, to shoot it accurately, and to hold it properly. Features which make a firearm more accurate are not a rational basis for prohibition.[2]

Magazines holding more than 10 rounds are not “high capacity.” Semi-automatic handguns constitute over 82% of new handguns manufactured in the United States.[3] A large percentage of them have standard, factory capacity magazines of 11 to 19 rounds. The AR-15 type rifle has for years been the best-selling rifle in the United States. The factory standard magazine for an AR-15 rifle is 30 rounds.

Assertions by some prohibitionists that the aforesaid common guns and common magazines are only made for mass murder are a malicious libel against the millions of peaceable Americans who own these self-defense and sporting tools.

Pursuant to District of Columbia v. Heller, such firearms and magazines may not be prohibited, because they are “typically possessed by law-abiding citizens for lawful purposes.” 554 U.S. 570, 625 (2008). As Heller explained, the Second Amendment prohibits prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose” of self-defense. Id. at 628.

Senator Feinstein’s prohibition bill targets an enormous class of arms. Taking into account the at least 4 million AR-15 rifles, plus everything else, the Feinstein ban would likely apply to at least 10 million firearms.

As for the magazines, the Feinstein ban does not focus solely on genuinely “high capacity,” non-standard magazines (e.g. 75 or 100 rounds) but instead bans common magazines holding 11 or more rounds; the gigantic class of what she would ban probably numbers at least several tens of millions, and perhaps much more.

That in itself is sufficient, according to Heller, to make prohibition unconstitutional.

The conclusion is reinforced by Heller’s observation that handgun prohibition was unconstitutional “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628. For substantive rights (as opposed to procedural ones), the two main standards are Strict Scrutiny and Intermediate Scrutiny. The former is for most situations of racial discrimination by government, and for most types of content-based restrictions on speech. The latter is used for government discrimination based on sex, as well as for most “time, place, and manner” regulations of speech in public places.

So we know that handgun prohibition fails Strict Scrutiny and also fails Intermediate Scrutiny. Although formulations of Intermediate Scrutiny vary from case to case, the general approach is that to pass Intermediate Scrutiny, a law must involve “an important government interest” and must “substantially” further that interest.

Now consider Intermediate Scrutiny as applied to handguns. Handguns constitute approximately one-third of the U.S. gun supply. They are used in about half of all homicides.[4]

And yet, a handgun ban fails Intermediate Scrutiny. If a handgun ban fails, then the bans on magazines and on so-called “assault weapons” must also fail.

The large majority of firearms banned by Sen. Feinstein’s bill are rifles. Rifles constitute about a third of the American gun supply. But rifles account for fewer than 3% of U.S. homicides—fewer than blunt objects such as clubs or hammers. The rifles covered by the Feinstein bill would account for even less.

Because handguns (very frequently used in crime) cannot be banned under Intermediate Scrutiny, rifles, or a subset of rifles (rarely used in crime) cannot be banned either.

There are no solid national statistics about the current use of 11+ magazines in crime. Given that 11-19 round magazines are standard for a large fraction of modern handguns, one might guess that 11+ round magazines would be used in some crimes. Even so, such magazines would be used less often in crime than handguns in general. Thus, a magazine ban also fails Intermediate Scrutiny.

It is important to remember that when applying Intermediate Scrutiny to a Second Amendment question, Heller’s methodology (by announcing that a handgun ban fails Intermediate Scrutiny) is that one must not consider solely the criminal uses of an arm. One must also consider the frequency of an arm’s use by “law-abiding citizens for lawful purposes.” The sheer quantity of what Senator Feinstein would ban is itself evidence that the banned firearms and magazines are “typically possessed by law-abiding citizens for lawful purposes.”

Heller makes it clear that some non-prohibitory controls are permissible. Because the Heller case was about a gun ban, the Court did not deeply explore the contours of legitimate non-prohibitory controls. However, the Court has said enough to at least raise questions about the constitutionality of “universal background checks.”

It is often said, by anti-gun lobbyists, that 40% of firearms sales take place today without checks. Notably, the study on which this claim is based was conducted before the National Instant Criminal Background Check System became operational.

Besides that, a great many private transfers of firearms take place between family members, or other persons who have known each other for many years.

More fundamentally, private transfers are not with the proper scope of Congress’s power to regulate “Commerce . . .  among the several States.” Pursuant to federal law since 1968, private sales may only take place intra-state. 18 U.S.C. §922(a). They are not interstate commerce. Nor, indeed, are they necessarily commerce of any sort, no matter how broadly defined, since many such transfers are gifts.

In Printz v. United States (1997), Justice Thomas’s concurring opinion suggested that a mandatory federal check on “purely intrastate sale or possession of firearms” might violate the Second Amendment. 521 U.S. 898, 938 (2007).

This view is supported by the Supreme Court’s opinion in District of Columbia v. Heller. There the Court provided a list of “longstanding” laws which were permissible gun controls. Heller at 626-27. The inclusion of each item on the list, as an exception to the right to keep and bear arms, provides guidance about the scope of the right itself.

Thus, the Court affirmed “prohibitions on the possession of firearms by felons and the mentally ill.” Felons and the mentally are exceptions to the general rule that individual Americans have a right to possess arms. The exception only makes sense if the general rule is valid. After all, if no-one has a right to possess arms, then there is no need for a special rule that felons and the mentally ill may be barred from possessing arms.

The second exception to the right to keep and bear arms is in favor of “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” This exception proves another rule: Americans have a general right to carry firearms. If the Second Amendment only applied to the keeping of arms at home, and not to the bearing of arms in public places, then there would be no need to specify the exception for carrying arms in “sensitive places.”

The third Heller exception is “laws imposing conditions and qualifications on the commercial sale of arms.” The word “commercial” does not appear because the Supreme Court was trying to use extra ink. Once again, the exception proves the rule. The Second Amendment allows “conditions and qualifications” on the commercial sale of arms. The Second Amendment does not allow Congress to impose “conditions and qualifications” on non-commercial transactions.

Federal law has long defined what constitutes “commercial sale” of arms. A person is required to obtain a Federal Firearms License (and become subject to many conditions and qualifications when selling arms) if the person is “engaged in the business” of selling firearms. This means:

a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;

18 U.S.C. §921(a)(21)(D). Of course a person who is “engaged in the business,” but who does not have a FFL, is guilty of a federal felony every time he sells a firearm. 18 U.S.C. §§922(a), 924.

Currently, the federal NICS law matches the constitutional standard set forth in Heller. NICS applies to all sales by persons who are “engaged in the business” (FFLs) and does not apply to transfers by persons who are not “engaged in the business.”

President Obama has already ordered the Bureau of Alcohol, Tobacco, Firearms and Explosives to inform FFLs about how they can perform a NICS check for private persons who would like such a check. On a voluntary basis, this is legitimate, but it would be constitutionally dubious to mandate it.

Finally, there has been talk of new federal laws against gun trafficking and against straw purchases. Fortunately, gun trafficking and straw purchases are already illegal, and there are many people who have the federal felony convictions to prove it.

Allegedly, federal prosecutors will be more willing to enforce the already-existing bans on trafficking and straw purchases if the laws are restated by enacting new legislation. A simpler approach would be for the President or the Attorney General to order U.S. Attorneys to give greater attention to the enforcement of the existing laws. Moreover, new statutes, especially when drafted in a “do something” crisis atmosphere may turn out to be highly overbroad, and to impose harsh new penalties on persons who were not the intended targets of the new statutes. The poorly-named “USA PATRIOT Act” should provide a cautionary example.

Below are some articles which might be interest to the Subcommittee.

“Guns, Mental Illness and Newtown.” Why random mass shootings have increased and what to do about it. Wall Street Journal. Dec. 17, 2012. http://online.wsj.com/article/SB10001424127887323723104578185271857424036.html.

“Arming the right people can save lives.” Good guys with guns have managed to thwart many mass attacks. Los Angeles Times. Jan. 15, 2013. http://www.latimes.com/news/opinion/commentary/la-oe-kopel-guns-resistance-nra-20130115,0,955405.story.

My U.S. Senate Judiciary Committee testimony on gun violence. Jan. 30, 2013. http://davekopel.org/Testimony-Senate-Judiciary-Kopel-1-30-13.pdf.

“Ronald Reagan’s AR-15.” Volokh.com. Jan. 15, 2013. http://www.volokh.com/2013/01/15/ronald-reagans-ar-15/.

“A Principal and his Gun.” How Vice Principal Joel Myrick used his handgun to stop the school shooter in Pearl, Mississippi. By Wayne Laugesen. Boulder Weekly. Oct. 15, 1999. http://davekopel.org/2A/OthWr/principal&gun.htm.

Pretend “Gun-free” School Zones: A Deadly Legal Fiction. 42 Connecticut Law Review 515 (2009). http://ssrn.com/abstract=1369783.

“Gun-Free Zones.” Wall Street Journal, April 18, 2007. The murders at Virginia Tech University. http://davekopel.org/2A/OpEds/Gun-Free-Zones.htm.

 

Sincerely,

David B. Kopel

Research Director, Independence Institute

Associate Policy Analyst, Cato Institute

Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law.

“Everyone loves money. That is why they call it MONEY.” – David Mamet.

The trillion-dollar coin is a proposal to avoid the debt ceiling through a loophole in a federal statute that authorizes the U.S. Mint to coin platinum in any denomination. Platinum is reserved for commemorative issues, and the obscure statutory provision was certainly not intended by Congress to authorize the effective borrowing of a trillion dollars, but as a statutory matter, the trillion dollar coin may work.

I have not examined the matter too closely, but at least one constitutional question pops up here.

Congress is authorized to “coin money.” The proposed trillion-dollar coin is certainly a coin – but is it money? Money is created for circulation. As Justice Story put it in his Commentary on the constitution, the power to coin money is designed to “preserve a proper circulation of good coin of a known value.” Vol. 2, § 1118. That is why it is put into the convenient form of coins or bills. Specie never intended for circulation, one might argue, is simply not money.

The link between circulation and coinage has been noted by courts, though obviously nothing has been decided, at least as far as my brief inquiry revealed. Veazie Bank v. Fenno, 75 U.S. 533 (1869) (“It cannot be doubted that under the constitution the power to provide a circulation of coin is given to congress.”)

Let us turn to the dictionaries. “Money” is “metal coined for public use,” according to the 1788 edition of William Perry’s The royal standard English dictionary. This may lead to a debate about what a “public use” is, reminscent of the “general welfare” question in the Spending power. I would guess it means “use by the public,” a view supported by “Metal coined for the purposes of commerce,” according to the 1789 edition of Sheridan’s Complete dictionary of the English language.

There are of course many potential rejoinders (aside from the possibility that the money/circulation property is specious.) The transfer to Treasury could be deemed circulation, but this I think weak. More seriously, one would point out that all non-circulating commemorative coins would thus be unconstitutional. OK – but has any court said that they are constitutional? Apparently the making of such coins did not begin until 1892, so as an originalist matter, their long-standing existence does not prove much. Presumably no one ever had reason to make issue over their issue. And not all commemoratives are non-circulating.

In any case, I doubt this proposal will gain currency with President. He has previously dismissed the constitutional legitimacy of formalistic gimmicks and “procedural tricks,” like the Senate declaring itself in session to avoid recess appointments. Back them, the White House counsel said that since the Senate was “functionally” in recess, that is what counts. Presumably here they will see that this is “functionally” a money supply policy not authorized by Congress in evasion of a debt ceiling that was.

UPDATE: I have amended this a bit shortly after posting it.

Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, in yesterday’s decision, Judge Sullivan found that none of the plaintiffs, which included members of Congress and individuals claiming they would benefit from the passage of filibustered legislation, have standing to bring the suit. He further found that the case presents a nonjusticiable political question.

The plaintiffs may well appeal, but I’m willing to bet they will not fare any better in front of the U.S. Court of Appeals for the D.C. Circuit. This is the last court in which to press an aggressive standing claim. This lawsuit may generate good press for filibuster opponents, but it’s a legal nonstarter.

P.S. I can’t help but note that it was not that long ago that Common Cause vehemently opposed any effort to eliminate the filibuster, particularly when used to block judicial confirmations. Now, however, Common Cause not only supports filibuster reform, but it also thinks the filibuster is unconstitutional.

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

As noted by Jonathan Adler, below, President Obama today asserted Executive Privilege for Attorney General Eric Holder’s refusal to comply with a document subpoena from the U.S. House Oversight Committee. The letter is here. The Committee will vote later today on a resolution to hold Holder in contempt of Congress. The Committee Report in support of the contempt resolution is here. A fact sheet on the contempt resolution is here.

Fast & Furious was a program implemented by the Arizona office of the Bureau of Alcohol, Tobacco, Firearms & Explosives, in Sept. 2009 through January 2011. In F&F, BATFE lied to and coerced Arizona gun stores into selling firearms to obvious “straw purchasers”–persons who were illegally buying firearms on behalf of someone who cannot legally buy firearms in the U.S. The “someone else” was Mexican gun traffickers, with most of the guns going to the Sinaloa cartel. Over 2,000 firearms were thus put into criminal hands. In this article for the NRA magazine America’s 1st Freedom,  I provide a timeline of events through October 2011. F&F was a larger and even more destructive reprise of Operation Wide Receiver, which in 2007 put about 500 guns into criminal hands, before BATFE’s management in DC began asking questions that immediately led to Wide Receiver being shut down.

On Feb. 4, 2011, the Department of Justice sent a letter to the House Oversight Committee which falsely claimed that no “gunwalking” (allowing guns to pass into criminal hands, without the guns being kept under constant surveillance) ever took place in Fast & Furious. In December 2011, the Department of Justice admitted that the letter was false, and formally withdrew it. The author of the letter, Ronald Weich, has left DOJ to become Dean of the University of Baltimore Law School.

Whistleblowers from BATFE started coming forward in December 2010, after F&F guns were used in the murder of Border Patrol Agent Brian Terry. There has been extensive retaliation against the whistleblowers.

The particular issues in the contempt vote, and therefore in President Obama’s assertion of Executive Privilege involve:

1. Retaliation against the whistleblowers.

2. Post-Feb. 4 DOJ documents about the false Feb. 4 letter, communications with the White House about F&F after Feb. 4, and other DOJ documents involving the (alleged) continuing cover-up after Feb. 4.

While Fast & Furious was going on, personnel at the National Security Council in the White House received information about it, although the full extent of what they were told is not yet clear. The contempt resolution is based on a document subpoena which was issued in October 2011.

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

So here are my questions for the commenters: Is President’s assertion of executive privilege legally persuasive? Do the citations provided in the executive privilege letter provide an accurate description of current law on executive privilege? Todd Gaziano, of the Heritage Foundation, argues that Executive Privilege is not properly invoked here.

UPDATE: I will be discussing today’s developments on WDTK radio, Detroit, at 4 p.m. Mountain Time. You can listen live here.

When it’s pushed by the Republican leadership, is located in a politically important state, and is carefully written to avoid the official definition of an “earmark.” (HT: Instapundit)

Yesterday Common Cause and several members of Congress filed suit to challenge the constitutionality of the filibuster. According to various reports, the suit is largely based upon the theory outliend in this article by litigator Emmet Bondurant, which maintains that the filibuster is a historical accident and violates the constitutional principle of majority rule. Where the Framers wanted a super-majority requirement for legislative action, they wrote such requirements into the Constitution. Further, Bondurant argues, the filibuster is entrenched in the Senate rules and must therefore be challenged in court.

Ezra Klein thinks Bondurant makes a “strong case.” I don’t, and I don’t think this suit will go anywhere. The first obstacle is standing. The failure of the Senate to pass a bill is not a legally cognizable injury, even if that bill appears to have majority support. The second obstacle is the political question doctrine. This obstacle is particularly large given that the Constitution expressly gives each house of Congress the power to set its own rules, so there is a textual commitment of this question to a coordinate branch. All of the cases upon which Bondurant relies to establish justiciability involved challenges to legislation or other acts that passed Congress and altered pre-existing rights and obligations, so they offer little support for Common Cause’s claims. Even were a court to get beyond these justiciability concerns, the suit would likely fail on the merits. If the Constitution authorizes the Senate to set its own rules, there’s no reason why the Senate cannot opt to include supermajority rules in its procedures.

The problems with this legal challenge are further magnified by Common Cause’s decision to challenge the use of the filibuster to block substantive legislation. The argument that the use of filibusters violates some unstated-albeit-enforceable constitutional norm is stronger with regard to items on the executive calendar (such as nominations) than it is with legislation. One could argue that the Senate’s obligation to “advise and consent” presumes an obligation to act — specifically, an obligation to hold an up-or-down vote — and that the filibuster prevents the Senate from fulfilling this duty. It is much harder to argue that the Senate must hold follow rules that allow for substantive votes on legislation. While it’s likely a challenge to nomination filibusters would also be found non-justiciable, it is more plausible than the claim Common Cause filed.

I’m sympathetic to the view that the filibuster is overused, particularly for nominations, but quite skeptical of any lawsuit claiming the filibuster is unconstitutional.

UPDATE: Common Cause’s Bob Edgar explains the suit here. Ian Millhiser likes the argument but doesn’t think the suit is justiciable. Gergory Koger is more circumspect.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

On Sunday, I noted John Berlau and David Bier’s concerns that the STOCK Act sweeps to broadly and could inhibit whistleblowing, and Professor Bainbridge’s thorough response.   Now Berlau and Bier’s colleague, Ryan Radia, has joined the fray, arguing in Berlau and Bier have valid concerns.  In his sur-reply, Professor Bainbridge explains why he’s still unconvinced, and why legislative reform to restrain insider trading on Capitol Hill remains a good idea.

Congress appears poised to enact the Stop Trading on Congressional Knowledge (STOCK) Act to expressly extend the prohibition on insider trading to members of Congress and their staff.  Some argued that insider trading on Capitol Hill was already illegal, but the STOCK Act would make this explicit.  Both the House and Senate have passed versions of the STOCK Act that are to be reconciled in conference for final passage.

As the STOCK Act has progressed, some have raised concerns about how it might apply to particular activities, such as  political intelligence (more here).  On NRO, John Berlau and David Bier raised concerns that the STOCK Act could inhibit whistleblowing.  As written, Berlau and Bier fear either bill “would muzzle the communication necessary for sunlight and reform.”

Professor Bainbridge, who’s written more on Congressional insider trading than anyone (e.g. here and here), believes these concerns are unfounded because existing law already applies to Congressional staff and Whistle-blowing activity does not constitute illegal tipping.

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing "indecency" on the Net -- good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at Scribd.com, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.

[And if you're not aware of how serious a threat these bills are to the Internet's technical, commercial, and economic infrastructure, consider this. Under SOPA, intellectual property rights holders can proceed vigilante-style against any allegedly infringing foreign websites, without the need for any court hearing or judicial intervention or oversight whatsoever. SOPA establishes a "notice and take-down" scheme under which an IP rights holder need only notify banks, credit card companies, Internet advertisers, and Internet search engine operators, in writing, that he/she has a “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of the notice will then have 5 days to cease doing any business whatsoever with the specified site, taking all “technically feasible” steps to prevent it “from completing payment transactions” with customers, from “making advertisements available” to the site, and from “being served as a direct hypertext link” from within any site under the recipient’s control. And all of this based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If that's "law," I'm the Pope. Imagine if we had that in the non-virtual world:

A guy walks into a bank. He hands the teller a note. Sweat begins beading on the teller's forehead, and he takes the note to the bank VP. The note reads: "Jack Johnson's been stealing my hogs. Freeze his bank account." And the bank has five days to comply!!

It's not law - it's a kind of thuggery, and it will make the Net a much, much less vibrant place (and a teeny bit safer for copyright holders - if that) if it is enacted.

UPDATE: Marty Schwimmer, an experienced copyright and trademark attorney, sent me the following revision to my "guy walks into a bank" description of SOPA, which, in the interest of airing other views, I present below. Obviously, we disagree - I still believe a law permitting private parties to create liability for other persons based on nothing more than their say so and a "notice" is a form of lawlessness and thuggery - but here's Schwimmer's take on it:

I have been a trademark and copyright attorney for 24 years; have utilized the DMCA many times and have co-authored an article for the Trademark Reporter analyzing the DMCA in the context of whether notice-and-takedown should be extended to trademarks (101 TMR no 1 at page 14). I have defended US IP owners against infringements by non-US entities. If I wanted to use a bank analogy to fairly represent the majority of instances in which notice-and-takedown would be utilized, it would read something like this:

“Someone using the name of Jack Johnson has been stealing my hogs. I can’t verify his true name or address because there is no enforcement of accurate whois information. I will never recover damages or be able to enforce injunctive relief against him. In fact, I may have already received a permanent injunction(s) against this very guy, previously, and I wouldn’t even know for certain. Furthermore, any service provider that he (or she or they) rely upon in their home country, will ignore any US court order I obtain. And while I will explore suing [them] in their country, legal and political considerations make that a low probability option.

And so, as you are “Jack’’s” payment processor receiving approximately 3 (or more) % of the gross revenue from his stolen hogs, and because you have some form of accurate contact data (and bank details) for this guy, I am putting you on actual notice of a specific infringement (and providing you the information that you need to assess my claim). If you don’t comply with my request, then, in order to take action against you, go to Court, prove the direct infringement against “Jack,” and then prove your intermediate liability (which among other things would involve proving that you were more than a passive bank receiving deposit, but a payment process having access to the details of all transactions) (see Gucci v Frontline). Given the resources you have to defend this as a financial services provider (see Gucci v Curveal), I doubt that there are beads of sweat on your forehead as you read this.”

I think that your note to the bank scans better, but I think that my version is a more accurate reflection of the motives of the IP holder and the circumstances under which they would attempt to utilize notice-and-takedown.

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.