Pardon as Contract

Ian Ayres

A week ago Sunday, Jeanine Pirro, the U.S. attorney in Washington, told CNN’s State of the Union that she would appeal the order voiding grand jury subpoenas against Federal Reserve Chair Jerome Powell and further indicated a willingness to pursue the case against Powell anew.  But less than two weeks earlier, on April 24, the Department of Justice had announced it was dropping that same criminal investigation.  It appears that any commitment the President makes today can be rescinded tomorrow.

That credibility problem is now blocking the normal transition of leadership at the Fed.  The President wants Jerome Powell out as a Fed Governor, because Powell’s seat, which runs through early 2028, gives Powell a vote against the interest-rate cuts that the President desperately wants.

But resignation strips Powell of the institutional protection that has, so far, kept the Justice Department at bay.  Federal district judge James Boasberg quashed the original grand jury subpoenas — for alleged misstatements to Congress about the Fed's headquarters renovation — because their “dominant (if not sole) purpose is to harass and pressure Powell either to yield to the president or to resign and make way for a Fed chair who will.”  That improper-motive finding evaporates the moment Powell is no longer at the Fed.  The DOJ has pursued former FBI director James Comey twice since he left government service; nothing in the law would stop the DOJ from coming after Powell after he resigns. 

Powell can be forgiven for wanting assurance, before resigning, that the criminal investigation is “well and truly over with finality and transparency.” 

A conditional pardon might give both sides what they want.  Such a pardon, conditioned on Powell’s prompt governorship resignation, would credibly discharge Powell’s exposure to prosecution, while simultaneously giving conceding to the President an additional appointment to the Board of Governors.

Presidential pardons are not self-executing.  Like contractual offers, they can be rejected by the potential pardonee.  Moreover, a President is free to attach conditions to acceptance.  As my colleague Stephen Carter has summarized, “One who accepts the pardon agrees to the conditions; and those conditions, unless they demand an illegal act or are impossible to perform, become legally binding.”

Conditional pardons of this sort are hardly a modern invention.  Presidents have used them since the early Republic to attach strings to clemency.  In 1829, Andrew Jackson pardoned one recipient on the condition that he learn “some beneficial trade” — essentially, that he get work and become self-supporting.  Other presidential pardons have required recipients to serve in the military, leave the country, or otherwise accept limits on their freedom as the price of forgiveness.

Presidents would do well to continue this tradition more deliberately.  For example, President Biden did his son and the public no favors when he granted Hunter a “full and unconditional” pardon.  Hunter Biden has publicly acknowledged a history of addiction, and federal law bars gun possession by users of controlled substances.  The President’s pardon could have made Hunter’s agreement not to purchase or possess firearms a condition of clemency.

A meaningful concern is whether offering Powell a conditional pardon would look like asking an innocent man to confess.  The Supreme Court observed in Burdick v. United States that a pardon "carries an imputation of guilt; acceptance a confession of it." Moreover, accepting this pardon might set a harmful precedent of normalizing a kind of presidential extortion.

To be clear, in putting forth the possibility of a conditional pardon, I am not suggesting that Powell broke the law.  Indeed, to my mind, the public record supports Judge Boasberg’s conclusion that “the government has offered no evidence whatsoever that Powell committed any crime other than displeasing the president.” 

But the possibility of vindictive prosecution is unfortunately no longer a hypothetical possibility.  The realistic question is not whether to engage with the President's leverage, but whether to convert it into something binding.

We tend to think of pardons as presidential largess, which, like mercy, “droppeth as the gentle rain from heaven.”  But in this case, a pardon would be a commitment device that would tie the president’s own hands.  Once accepted, the president could not rescind it, the Justice Department cannot revisit it, and Powell would exit with the protection that resignation alone would otherwise strip away. 

Powell might choose to reject an offered conditional pardon.  He has indicated that he might stay on even if the criminal investigation were dropped once and for all, saying that his decision would be guided by what he believes would be in “the best interest of the institution and the people we serve.” 

Recent Fed chairs have honored the tradition of stepping down from their governorships when their terms as Chair end.  A conditional pardon would grant Powell the opportunity to continue that tradition gracefully — and would turn the abused executive power that created this credibility problem into an instrument that resolves it.

Birthright Citizenship and Apophatic Interpretation

Guest Blogger

Carolina Núñez and Lucy Williams

For the last 15 months, the entire legal academy has fixated on five words: “subject to the jurisdiction thereof.”  These words are the only limitation in the Fourteenth Amendment’s broad grant of citizenship to “[a]ll persons born or naturalized in the United States.”[1]  They are also the words that the Trump administration seized upon in its executive order denying citizenship to children of undocumented immigrants.  Since that EO issued, legal scholars have expended considerable effort debating what, exactly, “subject to the jurisdiction” requires.  These debates have been so exhaustive (and so exhausting) that when the oral arguments in Trump v. Barbara finally rolled around, it was hard to imagine that those arguments might produce anything new. 

And for the most part, they didn’t.  The oral arguments largely tracked the parties’ briefs, which themselves draw heavily on the academic literature.  Because of this, the arguments were relatively predictable, exploring the same ideas and questions that legal academics have been feuding about since Trump’s second inauguration.  The Court asked, and the advocates answered, familiar questions about allegiance, domicile, original public meaning, and precedent.  For initiated listeners, not much was new. 

Near the end of the argument, though, counsel for the respondents Cecillia Wang said something that did feel new.  When asked whether there is “any way that there might be a different answer [to the question of birthright citizenship] with respect to the children of people who are here unlawfully,”[2] Ms. Wang answered, “[The framers of the Fourteenth Amendment] had an intuition that was consistent with the founding aversion to inherited rights and disabilities.”[3]  Though she did not elaborate further, she seemed to be suggesting something novel: The government’s position is untenable not only because it is inconsistent with the Fourteenth Amendment’s text or history or original public meaning, but also because it embraces something (inherited civic status) that the Fourteenth Amendment rejects. 

Ms. Wang’s comment echoes an argument we have made in our working paper “Apophatic Inquiry, Birthright Citizenship, and the Anti-Aristocratic Constitution.”   Our central claim is that constitutional interpreters ought to consider not only what the Constitution affirmatively says, but also the things it omits, rejects, and negates.  This approach, which we call “apophatic interpretation,” is modeled after apophatic theology, which seeks understanding through negation—by focusing on what something is not rather than what it is.  It is not, itself, a freestanding method of constitutional interpretation, and it does not supplant or displace the familiar interpretive modes.  Instead, it simply re-frames the question that existing interpretive modes seek to answer—from “What do these words mean?” to “What meanings do these words preclude?” 

To appreciate the advantages of an apophatic orientation, it is helpful to first consider what, exactly, the act of interpretation entails.  Though scholars in constitutional law, philosophy, political theory, and hermeneutics disagree about what it means to interpret a text, they largely agree on why we do it: to identify or discern a text’s meaning.  This is an affirmative task (interpreters look for some existing meaning) and it answers an affirmative question: What does this text actually (affirmatively) communicate? 

Apophatic interpretation flips this on its head.  Rather than chasing the Constitution’s affirmative meaning, intention, or commitments, apophatic interpretation posits that the interpreter’s guiding question should be, “What is the Constitution not?”  Interpreters may seek this negative meaning using their preferred interpretive tools—whether textualist, originalist, or living constitutionalist.  But once they have identified the Constitution’s negative content, they must interpret the document’s affirmative provisions in ways that are consistent with those rejections.  Put differently, apophatic interpretation helps interpreters identify meanings that are untenable because they enact what the Constitution was designed to reject.  In doing so, apophatic interpretation maximizes our options for constitutional action and agency: As long as we do not enact what the framers rejected, we should feel empowered to explore many possible constitutional interpretations. 

Applied to the question of birthright citizenship, an apophatic approach provides new and additional evidence that the Trump administration’s EO cannot stand.  As we argue in our working paper and in this blog post, the Constitution emphatically and thoroughly rejects hereditary civic status.  The Constitution’s very existence supports this view: The document formalizes the colonies’ rejection of English government and its hereditary-based political classes.  It also contains multiple provisions that reveal a desire to keep inherited status at bay. 

Take, for example, the Guarantee Clause of Article IV, which requires the federal government to secure for every state “a Republican Form of Government.”[4]   Though the framers did not always agree about what republican government required, they all agreed on what republican government was not: a system of hereditary civic status.  Madison, the chief architect of the Clause, wrote that it would empower the federal government to “defend the system against aristocratic or monarchical innovations.”[5]  James Iredell described it as ensuring that “no state should have a right to establish an aristocracy or monarchy.”[6]  In the lead-up to Reconstruction, members of Congress recognized slavery as the very antithesis of republicanism, with one legislator describing slavery as “a caste, an aristocracy, based upon . . .  blood entirely inconsistent with republican government and republican institutions.”[7]  The Joint Committee on Reconstruction later cited the Guarantee Clause as a legal basis for Reconstruction, including the Fourteenth Amendment. 

The Constitution’s Titles of Nobility Clauses likewise reveal an anti-heredity ethos.  These Clauses prohibit the federal and state governments from granting titles of nobility.[8]  In doing so, they reject the link between blood and civic status that permeated English common law.  Alexander Hamilton described the Nobility Clauses as “the cornerstone of republican government,”[9] and Madison called them “the most decisive proof of the Constitution's republican character.”[10]  And though the Clauses were adopted with little debate, post-adoption commentary describes the Clauses and their state constitution counterparts as protecting against “hereditary rights, shadows of aristocracy”[11] and “hereditary rank and consequence.”[12] 

Article III, Section 3 continues the Constitution’s anti-aristocracy project by providing that “no Attainder of Treason shall work Corruption of Blood . . . .”[13]  At English common law, descendants could be punished for a predecessor’s treason.  The Corruption of Blood Clause rejected that tradition.  After the Constitutional Convention, James Madison approvingly observed that the provision restrained Congress from “extending the consequences of guilt beyond the person of its author,”[14] and Joseph Story reflected that corruption of blood inappropriately allowed for “the sin [to be] visited upon remote generations.”[15]  Frederick Douglass later invoked the Corruption of Blood Clause to advocate for abolition, arguing that the Clause prohibited systems which, like slavery, punished children because of their parents’ status.[16] 

In short, the Guarantee Clause, the Titles of Nobility Clauses, and the Corruption of Blood Clause each reject inherited civic status.  They tell us that an individual’s relationship to the state cannot be inherited from a parent.  And they tell us that children must not be punished for their parents’ wrongs (even in the case of treason—an active betrayal of the state).  Taken together, these provisions form an anti-aristocracy constitutional framework.  Whatever else the rest of the Constitution means, it must not contradict that underlying, apophatic rejection. 

What does this mean for the question of birthright citizenship?  If Trump’s EO goes into effect, children born in the United States to parents who are present in the country without authorization will be marked with civic disability: Rather than enjoy the status and privileges that come with citizenship, they will exist as lesser, second-tier members of the political community.  This civic disability will burden every interaction they have with the government and with society as a whole.  Ineligibility for means-tested public benefits may leave a growing caste of U.S.-born children without basic necessities.  Vulnerability to immigration enforcement efforts, including possible detention and removal, even for those who have found a different path to immigration status, will threaten separation from family and community.  And some may learn they are stateless because the country of their parents’ citizenship does not consider them citizens, either. 

The consequences would compound over time.  If those non-citizen children remain in the country and do not find some other way to naturalize or gain the requisite immigration status, they, too, will give birth to children who are not citizens.  Those children will pass their inherited civic disability to their children.  And so on.  Meanwhile, people legally present in the United States will pass their superior civic status to their posterity, and on and on down the line.  In short, the EO will create two parallel hereditary tracks: Some will inherit civic status privilege, and others will inherit the consequences of their parents’ (or grandparents’, or great-grandparents’) unauthorized presence. 

Our anti-heredity Constitution does not brook this result.  When so much of the Constitution repudiates civic heredity, it would be very odd indeed if the Citizenship Clause permitted civic benefits or disabilities transmitted through blood.  Put differently, the Constitution’s rejections of hereditary civic status foreclose an interpretation of the Fourteenth Amendment that would deny citizenship to children born in the United States to undocumented or visiting parents. 

Carolina Núñez is the Charles E. Jones Professor of Law at BYU Law.  You can reach her by e-mail at nunezc@law.byu.edu. Lucy Williams is an Associate Professor at BYU Law.  You can reach her by e-mail at williamsl@law.byu.edu.

The Ten Commandments Case: Constitutional Erastianism

Guest Blogger

Arvind Kurian Abraham

When the Fifth Circuit upheld Texas's law mandating the display of the Ten Commandments in public school classrooms, most legal scholars will reach for the obvious reference points: Establishment Clause, the separation of church and state, the ghost of school prayer. The dissenting judges have dutifully explained the legal flaws of the Court's opinion. Few, however, will think about Erastianism. They probably should.

Erastianism, the 16th-century doctrine associated with the Swiss theologian Thomas Erastus, holds that the state possesses supremacy over the church in ecclesiastical affairs, including the power to determine matters of religious doctrine and belief. It is a doctrine most Americans would instinctively recoil from. And yet it is precisely what the Fifth Circuit has quietly endorsed.

Consider the precedent. Following Henry VIII's break with Rome, the English Parliament enacted the Statute of the Six Articles in 1539, prescribing the core articles of Christian faith for the Church of England. Most Catholics would have found little to dispute in the articles themselves. What was extraordinary was not the content but the act: laymen in Parliament, and not an ecclesiastical council, determining what Christianity required its faithful to believe. Henry VIII had not read Erastus, who was still a child at the time, but the instinct was the same. When the state reaches into the sanctuary and decides what doctrine says, something constitutionally and historically alarming has occurred.

The Fifth Circuit's ruling carries that same instinct into the present. Texas has selected a particular version of the Ten Commandments, a text whose numbering and content are genuinely disputed across Jewish, Catholic, and Protestant traditions, and plastered it on the walls of public school classrooms by force of law. The state has not merely accommodated religion. It has presumed to define it. That is not a constitutional novelty. It is Erastianism.

But surely we know what the Ten Commandments consist of? Not quite. There are, in fact, three versions of the Ten Commandments, also known as the Decalogue, in the Pentateuch, and they do not say the same thing. The Ten Commandments make their first appearance in Exodus 20, only to resurface with notable differences in Deuteronomy 5. More striking still is what occurs in Exodus 34, as highlighted by biblical scholar Christine Hayes. After Moses shatters the original tablets, the biblical narrative declares that God restored the very same words onto new ones. Yet what follows is nothing of the sort. The text that appears in its place concerns itself not with universal moral principles but more with ritual aspects. Biblical scholars have termed this the Ritual Decalogue, and its existence alone complicates any confident claim about what the Ten Commandments definitively are.

Though the text is referred to as the Ten Commandments, Exodus 20 consists of thirteen to fourteen statements, which are numbered as ten, with the numbering varying across Jewish and Christian denominations. The content of the text also varies among these traditions. The King James Bible identifies the second commandment as prohibiting the worship of any “graven image,” a formulation from which Catholics have historically dissented. Historically, this difference was exploited to demean Catholic students in 19th-century schools across the United States.

The petitioners argued that Texas had selected a particular Protestant rendering, constituting denominational discrimination forbidden by the Establishment Clause. The Fifth Circuit dismissed this, reasoning that adjudicating the claim would require a theological judgment beyond its competence. But this response concedes the very point it seeks to avoid: the Court acknowledged the text is religiously contested, and then used that concession as a reason to do nothing. The constitutional question was never which tradition renders the text correctly. It was whether the state has any authority to render it at all. It does not. By selecting one version for mandatory classroom display, Texas has exercised precisely the theological judgment the Establishment Clause forbids. The Court's retreat into institutional modesty was not compelled by the difficulty of the question. It was a means of evading it.

The Court also invoked Van Orden v. Perry, reasoning that the displayed text matches a Ten Commandments monument previously upheld on Texas Capitol grounds. But that monument was privately donated, stood among seventeen monuments in a public park, and had gone unchallenged for four decades. It was not a state-mandated display imposed on a captive audience. The controlling precedent is Mccreary County v ACLU, where Ten Commandments displays in Kentucky courthouses and schools, unavoidably visible to ordinary visitors, were rightly held unconstitutional because their purpose was to favor one faith over others. That is plainly what Texas set out to achieve.

The implications extend well beyond Texas. Unless the Supreme Court corrects course, this ruling effectively licenses legislatures across the country to mandate religious texts in public school classrooms. In 2015, parents in Virginia were outraged when students were assigned to copy an Arabic calligraphy of the Islamic declaration of faith. That was a classroom exercise. Under the Fifth Circuit's reasoning, a state legislature could mandate that same text on every public school wall. That is the door this ruling has opened.

The Fifth Circuit's opinion effectively sanctions the state's authority to determine the content of religious texts for mandatory display in public classrooms. The Establishment Clause, it seems, offers no resistance. Constitutional Erastianism has arrived.

Arvind Kurian Abraham is an SJD Candidate at Harvard Law School. You can reach him by e-mail at aabraham@sjd.law.harvard.edu. 

Balkinization Symposium on Stephen Skowronek, The Adaptability Paradox-- Collected Essays

JB

Here are the collected essays for our Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Emily Zackin, Too Much or Too Little Adaptation?

3. Sandy Levinson, “Adaptability” as a constitutional norm (and problem): Reflections on a Skowronekian Constitution

4. Rogers M. Smith, The New American Adaptability Paradigm: Empire or Federation?

5. Noah A. Rosenblum, The Avoidant Constitution?

6. Andrea Scoseria Katz, Skowronek on American Democracy: Gridlock, Presidentialism, and Democratic Faith

7. Richard H. Pildes, The Era of Democratic Dissatisfaction

8. Jeremy Kessler, The Material Foundations of American Constitutional Development

9. Elizabeth Beaumont, Reexamining the Civil Rights Revolution: Partial Adaptation and the Rise of a Civil and Social Rights State

10. Elizabeth Beaumont, The Unbound Constitution Reconsidered: Skowronek’s Framework and History of Constitutional Reordering

11. Elizabeth Beaumont, Confronting Current Constitutional Dysfunctions: Civic Constitutionalism and the Adaptability Paradox 

12. Nikolas Bowie, Who's Afraid of a Constitutional Convention 

13. Stephen Skowronek, Has American Democracy Outstripped Its Constitutional Accommodations?-- Part One

14. Stephen Skowronek, Has American Democracy Outstripped Its Constitutional Accommodations?-- Part Two

A Miscarriage of Justice?

Ian Ayres

Barbara Fried’s recent post on Substack, to my mind, lays out a devastating critique of the prosecution’s misappropriation theory of criminal liability in the trial of her son, Sam Bankman-Fried.  If you think the evidence is open and shut that SBF stole client money, you should think again.  Margin accounts like those offered by FTX are very different from traditional (spot) brokerage accounts at, say, Vanguard or Fidelity.  As John Donohue and I emphasized in a comment we posted to SSRN:

The whole purpose of a margin exchange is to permit customers to finance a portion of their purchases on the exchange with assets borrowed from other customers. FTX’s terms of service authorized such loans with regard to its margin account customers who opted for FTX margin accounts. A substantial majority of the funds deposited on FTX came from customers who opted into the margin trading program. To do so, they had to agree to Section 16.4 of the terms of service, which governed margin traders. The provision clearly stated that:

“Under certain market conditions, it may become difficult or impossible to liquidate a position [and] there is no assurance or guarantee that any such program activities will be sufficient or effective in liquidating your position. As a result, you may lose all of your Assets or incur a negative balance in your Account. In addition, even if you have not suffered any liquidations or losses, your Account balance may be subject to clawback due to losses suffered by other Users.”

Donohue and I emphasized this provision because FTX didn’t misappropriate client funds if the margin account holders gave FTX permission to loan their funds to other clients, including Alameda.  The final clawback provision is especially relevant because it warns margin clients that they may be subject to risk of loss due to losses suffered by other users, which only makes sense if the assets of margin users could be loaned to other account holders.

So what is the best interpretation of Section 16.4?  John and I pointed out:

The terms of service were expressly governed by English law. But the judge refused to admit expert testimony about what was permissible under FTX's terms of service. A defendant's expert, Lawrence Akka, was prepared to testify that under UK law, the loans to Alameda—and the uses that Alameda made of the funds—were permissible. To quote Akka: “FTX was obliged to honour customer withdrawals (i.e. to repay the debt of fiat currency that it owed), but was not constrained to use fiat currency for any particular purpose in the interim.” This doesn’t rule out the possibility that FTX breached its civil duty to its margin customers by allowing for excessive lending to Alameda—albeit now satisfied by the full payments in bankruptcy—but it does refute the idea that any borrowing of customer funds was blatant theft under criminal law.

As Fried points out, the fact that the prosecution sought to bar admission of Section 16.4 of the Terms of Service in a pretrial motion might be taken to indicate that they, too, believed that interpretation was at least plausible. 

Kaplan justified his ruling blocking Lawrence Akka from testifying about the meaning of the Terms of Service under UK law by stating that he (Kaplan) was competent to instruct the jury on foreign law himself.  Fried’s Substack post details what happened next: 

At the charge conference Kaplan announced he was going to instruct the jury [on the meaning of the Terms of Service] under US law instead. . . . His stated reason was that the defense had failed to introduce any evidence concerning UK law [!]

But then he gave the jury no instructions [under US or any other law] on the most important legal issue in determining whether the funds in question were misappropriated (stolen): whether the Terms of Service authorized the loans from FTX to Alameda. . . . 

Instead, as Fried states, he “invit[ed the jury] to conclude that the terms of the contract were irrelevant because this ‘is a criminal wire fraud case. It is not a civil case for breach of contract.’” (Transcript, p. 3155)  The fact that the crime was charged under a federal wire fraud statute has no relevance to whether an underlying crime was committed.  It merely states the method of communication used in its alleged commission.  The contract at issue here, on the other hand, has everything to do with whether a crime was committed.  Contracts can authorize one party to use another party’s assets and thereby change what would otherwise be criminal conversion into a commonplace, perfectly lawful transaction.  When I drive Avis’s car off the rental lot, I am not stealing it, because my contract with Avis authorizes me to do so.  The jury’s instruction should have allowed the jury to conclude that the terms of service authorized FTX to lend the funds of margin account holders to Alameda.  Indeed, the judge might have reached such a determination as a matter of law.

In seeking to justify his decision not to instruct the jury on the legal import of the express provisions of the terms of service, the judge dismissed them as an “idle communication.” (Transcript, 2853-54)  Fried appropriately concludes:

In a single sentence, Kaplan negated the legal relevance of contract terms, inviting the jury to supply the terms of a private contract from—what? general principles of law? customs of the trade? their own beliefs about what these parties ought to have agreed to? 

There are still important questions about whether SBF might be criminally liable for representations that FTX and he made at various points in time.  (In an earlier post, Fried questioned whether the alleged misrepresentations could plausibly support a criminal conviction, let alone a 25-year prison term.)  But in my view, she lays out a devastatingly persuasive case that the prosecution should not have been allowed to argue to the jury, dozens of times during the trial, that the defendant stole billions of dollars of client funds – at least without much more careful attention to whether the terms of service allowed those funds to be lent.

Before ending, I should mention there are ad hominem reasons why you might discount the foregoing.  As I have disclosed before, I am a friend and coauthor of both Barbara Fried and Joe Bankman, the parents of Sam Bankman-Fried.  

Requiem

Ian Ayres

After a strenuous bike ride in Patagonia last week, I summoned the energy to crank out the first draft of an opinion piece that was published just a couple of days later in the Yale Daily News.  The piece raises several questions about the Committee on Trust in Higher Education’s recommendation to amend Yale’s mission statement.  Turns out, it is a good thing I didn’t wait to speak on this issue, because as I was waiting to board my return flight to JFK, I learned that the University had already adopted the Committee-recommended mission statement.

As a procedural matter, the speed of adoption might be questioned.  The President could have allowed a bit more time for community response.  After my YDN piece appeared, I received a surprisingly large number of emails and texts from colleagues, students, and alumni thanking me for writing it.  This outreach suggests to me that the President’s swift action foreclosed spirited and productive discussion that could otherwise have taken place.  It is now a fait accompli – especially with students and faculty dispersing for the summer.

Nonetheless, I write here to amplify two of the questions I raised initially.

What Knowledge?

With one large exception (which I will discuss below), I predict very little will change at Yale under the new mission statement.  Still, it would have been helpful if the Committee report had gone a bit further in defining what types of knowledge are worthy to create, disseminate, and preserve.  Notwithstanding the deemphasis on improving the world, Yale resources should continue to support scholarship that makes prescriptive arguments.  Novel normative claims is knowledge worthy of University support.

[I am personally reluctant to teach “oughts” in my law classes.  I focus more on what the law “is.”  I try to present and challenge normative arguments of myself and others and let students decide what is best – sometimes papering over normative claims with expedient frames (“Efficiency-minded lawmakers would prefer …”).  In contrast, my scholarship, like most legal scholarship, is awash with prescriptions and suggestions for legal reform, and is worthy of University support.]

And given that the central purpose of the Committee’s work was to restore public trust, it would have been useful for their report to clearly affirm that Yale supports the creation and dissemination of knowledge -- even if it reduces the public’s trust in us.  The math department will not be teaching the President’s new approach to calculating percentage reductions (also adopted by the Secretary of Health and Human Services) even if going along with the White House might have increased  public trust.

What Change?

As I said in my original piece, mission statements can inspire, but they can also meaningfully constrain how an institution deploys its resources.  One might reasonably ask the President how, if the old mission statement was misguided, University resources have been misdeployed in the past, and how the new mission statement is likely to change projects and initiatives going forward.

I predict very little will change.  We will not shutter or diminish the schools’ programs in ethics or leadership – notwithstanding those subjects’ deemphasis in the amended statement.  Likewise, I hope we will not shackle the good work of various clinical programs that teach students by applying their talents toward improving the world.

The one substantial change that has been taking place – both at Yale and at peer institutions– is the dismantling or rebranding of all University programs related to diversity, equity, or inclusion.  The Office of Diversity & Inclusion is now the office for “Employee Engagement & Workplace Culture.”  The Buckley Institute reports that, across the University, Yale has “changed the names of 9 DEI-related offices.”  The current administration has overseen what one might characterize as a 1000% reduction in the number of employees with the word inclusion in their title.

It would be unfair to call Maurie McInnis the Neville Chamberlain of university presidents.  But a central purpose of the new mission statement seems to be a further scrubbing the term inclusion from the University’s website.  Indeed, putting this word to bed may be the only concrete consequence spurred by the changed mission.  A reasonable person might accordingly view the new mission statement not as an effort to enhance public trust, but as a further form of pro-active appeasement.

The DOL's 401(k) Rule Gets the Goals Right but the Guardrails Wrong

Ian Ayres

By Ian Ayres and Quinn Curtis

The Department of Labor’s new proposed changes to 401(k) plan regulations, framed by the Trump administration as democratizing retirement investment options for everyday Americans, instead reads as though its primary aim is to benefit the financial advisory industry.

Last August, President Trump signed an executive order calling on the Department of Labor to make it easier for employers to offer alternative investments – private equity, hedge funds, real estate, and the like – in the 401(k) plans that more than 90 million Americans rely on for retirement. Last week, the DOL responded with a proposed rule, which it frames as a "safe harbor" checklist of steps that, if followed, would shield employers from liability when they add these options to their plans. Responsibly broadening access to alternative assets can usefully improve portfolio diversification. But the proposed rule is too deferential to employers who retain professional advisers and fails to include two protections that would make this expansion work: guardrail caps and participant monitoring.

The rule's core framework is sound. It begins, as it should, by requiring plan fiduciaries, the employers and committees responsible for managing workers' retirement options, to evaluate investments based on risk-adjusted returns, net of fees. But that sensible starting point is undermined by a safe harbor so permissive that it offers little practical constraint.

16 of the rule's 20 illustrative examples conclude that no fiduciary violation occurred. Among the 16, those addressing fees are particularly permissive. One example blesses paying annual fees that are a quarter of a percent higher for a fund offering "knowledgeably staffed call centers" and "short wait times." But Empower, one of the nation's largest retirement plan administrators, reports that only 10 to 26 percent of plan participants ever make a service or advisory call in a given year. A rule that lets employers justify fees based on services that the vast majority of participants never use is not adequately protecting those participants.

Another example approves adding hedge funds and private equity to a target-date fund – the most common default into which workers are automatically enrolled – with any resulting fee increase justified only by a professional adviser’s forward-looking return projections. Still another permits fund managers to bundle the complex, variable fee structures unique to alternative assets into a single flat charge, absolving the employer of any need to understand the underlying cost structure. 

An explanation for this permissiveness is not hard to find. One gets the sense the rules were drafted by and for the benefit of professional plan advisors.  These advisors are referenced nearly 50 times in the proposed rule. Every example that clears the employer features a fiduciary who hired a professional adviser, while two of the four violation examples explicitly flag the absence of an adviser as part of the failure narrative. The advisory industry has basically drafted a mechanism to guarantee their employment. 

The proposed rule should drop many of the illustrative examples that unreasonably immunize imprudent plan menus.  The rule also needs, and lacks, are investment guardrails.

First, alternative asset classes – which, unlike the traditional stocks or bonds, can be difficult to sell quickly if needed – should have percentage caps limiting how much of a worker's savings can flow into any single alternative investment. Many plans already limit company stock contributions, and roughly two-thirds of such plans cap contributions at 20 percent.

When ForUsAll, a 401(k) provider, launched a digital-currency investment option in 2021, it wisely limited contributions to 5 percent of a worker's account. These caps protect individuals prone to irrational decisions without constraining those making informed, deliberate ones. We would suggest a 10 percent cap on any single alternative asset class – though even a 20 percent cap, matching the existing norm for company stock, would be far better than the current proposal, which places no limit at all on how much a participant can concentrate in a single hedge fund or cryptocurrency.

Second, employers should be required to monitor whether workers are misusing their plans’ investment menus. The advisers who administer plans typically do not give employers any information on how individual workers are allocating their savings. Employers receive reams of data about fund returns and comparisons to benchmarks, but are never told whether participants are creating undiversified or excessively expensive portfolios. The proposed rule's six safe-harbor factors – performance, fees, liquidity, valuation, benchmarks, and complexity – are entirely about the characteristics of the offered investment products. None address whether workers actually use those options wisely.

Making matters worse, the rule explicitly excludes "brokerage windows" – a feature that lets participants invest in virtually any security on the open market, outside the plan's curated menu – from the safe harbor's requirements. That means the avenue through which workers already have the most freedom to make risky, undiversified bets will face no new scrutiny at all.

The Trump administration deserves credit for seeking to open 401(k) plans to a broader set of investment options. Allowing workers to gain exposure to private equity and other alternatives can genuinely improve diversification and reduce risk. But workers should not be able to use their 401(k) accounts to essentially gamble their tax-subsidized retirement savings on a speculative bet while professional advisers profit. The proposed safe harbor framework is so spacious that too many fiduciary failures would fit inside.

Ten Commandments webinar

Andrew Koppelman

This Friday, my friend Stephanie Barclay and I will struggle mightily to find something to disagree about as we discuss the Fifth Circuit's Ten Commandments decision in a Federalist Society webinar.

Has American Democracy Outstripped Its Constitutional Accommodations?-- Part Two

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Stephen Skowronek

This post continues and completes my responses to comments in the Balkinization symposium on my book The Adaptability Paradox.

Democracy: The Adaptability Paradox argues that what we have yet to create, and what we desperately need, is a strong constitution capable of supporting a fully inclusive democracy. (TAP: x, 236) This is not the standard view of the problem of democracy in America. The standard view is far more focused on the limitations of our democracy than on the limitations of our Constitution. The emphasis has been on democracy’s uneven progress, on its incomplete realization, and on overcoming its still-potent adversaries in American culture and politics. I did not write this book to take issue with the standard approach. In fact, the insights it has generated are integral to my analysis. But I don’t think that all of democracy’s problems can be solved by more democracy. I shifted the focus to the impact of democratization on the Constitution because I think that the constitutional problem of managing conflict and supporting democracy often gets lost in “bottom-up” treatments.

Has American Democracy Outstripped Its Constitutional Accommodations?-- Part One

Guest Blogger

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

Stephen Skowronek 

            I want to thank Jack Balkin for hosting this symposium on The Adaptability Paradox and to convey my gratitude to the nine scholars who participated. These are all serious and probing commentaries on the book’s themes. No author can ask for more than that.

The commentaries are very different from one another, and they range over a wide field of pertinent concerns. Each deserves a thorough and fully considered response. But even my effort here to touch on a few of the issues that come up recurrently in the commentaries goes on too long. At the risk of trying patience, I will address four.  One has to do with my conception of the relationship between order and change; another, with the book’s disposition toward democracy and democratization; a third, with scope conditions and questions of causation; and a fourth with pathways out of our current predicament.

My responses will appear in two installments. This first post reclaims the ground the book carves out for itself and takes up questions raised about order and change. The next will address the three other areas of interest.

A Naval Blockade is an Act of War

Gerard N. Magliocca

During the Cuban Missile Crisis, the Kennedy Administration was careful to label its naval action to stop further deliveries by Soviet ships a "quarantine." The reason for this was that a "blockade" is an act of war under international law. 

I don't know all the legal and diplomatic consequences that flow from calling the Iran operation a blockade instead of a quarantine. As an Admiralty teacher, all I can say is that acts of war trigger mutual exceptions or force majeure is most maritime contracts.  

Is Liberalism Inherently Authoritarian?

Andrew Koppelman

The Danube Institute in Budapest has just published an exchange between me and two of its resident scholars, Jacob Williams and Philip Pilkington, on the question, "Is Liberalism Inherently Authoritarian?" It builds on a piece of mine that appeared last month in The Unpopulist.  The core critical claim of postliberalism is that liberalism inevitably turns into its opposite; that what begins as an ideology of tolerance and free speech ends in repression.  I attacked that claim for its vagueness about just how liberalism purportedly leads to that baleful result.  Williams and Pilkington respond, and I wrote a surrebuttal.  I remain unpersuaded, but the conversation was a fascinating window into the postliberal mind.

The Fragmentation of Truth

Guest Blogger

Valérie Bélair-Gagnon

When we talk about AI and fact-checking, we often fixate on the informational: the deepfake, the viral lie, or the bot. Yet the disinformation crisis is fundamentally institutional. We have reached a crossroads where we must shift our focus from the viral lie to the underlying political economy that shapes who defines truth, and at what cost. If we fix the information but leave the infrastructure of truth-making in the hands of a few market-driven empires, we have not solved the disinformation crisis; we have simply automated it. 

This institutional struggle is at the heart of the anti-disinformation assemblage, a contingent, often messy configuration of platforms, states, technology organizations, and editorial actors. In an ongoing collaborative book project, my co-authors and I argue that this assemblage is currently undergoing a profound fragmentation. These diverse actors are held together by a struggle for definitional authority: the power to decide what constitutes a social problem and what requires an intervention.

Pluralist Modalities in Originalist Clothing: Thoughts on Arguments in Trump v. Barbara

Guest Blogger

James Fox 

Like most observers I listened to the oral arguments in Trump v. Barbara for signals about the possible vote alignment in the challenge to President Trump’s Executive Order declaring that birthright citizenship under the fourteenth amendment no longer applies to children whose parents are in the United States without authorization or long-term domicile. I left the argument thinking about how this quintessential originalist dispute in fact revealed the justices shifting around in a sea of rhetorical modalities, and how the scant efforts to attend to all the modalities inhibits argument and analysis.

As the case has been presented in the briefing, in the lower courts, and in much of the legal social mediasphere, it is almost entirely an originalism debate. The opponents of Trump’s Executive Order have a lot of text and ratifying history on their side, the leading precedent is largely originalist in character, the main supporters of the EO have developed long-winded originalist arguments on the fly and themselves are getting strong pushback for that effort by fellow conservative originalists as well as liberal scholars.

The oral arguments reflected a lot of this, of course. But I also thought they revealed important ways in which all the modalities (here thinking primarily of Philip Bobbitt’s modalities but not limited to them) were lurking in the background. Here are some thoughts on that reaction to the argument, with a focus mainly on the justices’ questions.

Presidential Appropriations

David Super

      President Trump has rejected any constraints on the violent, lawless, reckless behavior of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents even after they killed several U.S. citizens.  He also has repeatedly rejected a bipartisan Senate compromise that would have funded all of the Department of Homeland Security (DHS) apart from those two agencies.  This compromise would not have interfered with the continued operations of ICE and, at least in the near term, of CBP:  both agencies received a huge influx of funds under the One Big Beautiful Bill Act (OBBBA) President Trump pushed through Congress last summer.

     Without a DHS appropriation, most DHS employees, including those at the Transportation Security Administration (TSA), the Federal Emergency Management Agency (FEMA), and the Coast Guard, have been working without pay.  TSA officers have been resigning and calling in sick, leading to huge lines at airports and numerous missed flights.  Other DHS employees have been seething in relative obscurity.  This post analyzes the legality, or lack thereof, of the actions President Trump has taken in response to this impasse. 

     When the previous temporary appropriation for DHS became unavailable on February 14, President Trump kept ICE agents working and continued to pay them with funds from section 100052 of OBBBA.  This section provides $29.85 billion to ICE for an extensive list of purposes including “Hiring and Training” and “Performance, Retention and Signing Bonuses”.  Although not a clean match with paying the regular salaries of on-going ICE employees, most people likely would regard that as sufficient authority for these payments.  Section 1000052 likely provided sufficient funds to support ICE for the remainder of this fiscal year.

     President Trump also kept CBP agents working and paid them under section 100051 of OBBBA.  Section 1000051 provides DHS $2.055 billion for several purposes including the “[h]iring and training of additional U.S. Customs and Border Protection agents, and the necessary support staff, to carry out immigration enforcement activities.”  President Biden’s final budget proposal estimated that CBP would spend about $16 billion in a year so, even combined with 4.5 months of funding under continuing resolutions, section 1000051 funds alone likely would not suffice to fund CBP through the end of the fiscal year in September. 

     Finally, President Trump required many other DHS employees, including TSA officers and much of the Coast Guard, to continue working during the partial shutdown that began February 14.  This likely was appropriate under section 1342 of the Anti-Deficiency Act, which makes an exception to its general prohibition on the federal government accepting unpaid work where necessary to address “emergencies involving the safety of human life or the protection of property.”  He did not pay them, however, because section 1341 of the Act, which prohibits spending federal funds without a statutory appropriation, contains no “emergency” exception. 

     President Trump was unable to continue paying these non-ICE, non-CBP employees under sections 1000051 or 1000052 because the “Purpose Act” states “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”  

     The Government Accountability Office’s (GAO’s) Red Book of Appropriations Law, on which the Supreme Court has relied, characterizes the “Purpose Act”:  as “Simple, concise, and direct, Congress originally enacted this statute in 1809 and it is one of the cornerstones of congressional control over the federal purse.”  It quotes a 19^th Century Comptroller of the Treasury:  “It is difficult to see how a legislative prohibition could be expressed in stronger terms. The law is plain, and any disbursing officer disregards it at his peril.”  That “peril” is the Anti-Deficiency Act’s criminal penalties.  GAO notes that “[i]f a proposed use of funds is inconsistent with the statutory language, the expenditure is improper, even if it would result in substantial savings or other benefits to the government” and “transfer between appropriations is prohibited without specific statutory authority, even where reimbursement is contemplated.”

     As public irritation over long airport security lines mounted and Democrats continued to refuse to appropriate more no-strings money for ICE and CBP, President Trump repeatedly instructed congressional Republicans to reject Democratic bills that would have funded the rest of DHS and let ICE and CBP continue to spend OBBBA funds.  When Senate Republicans disobeyed and agreed to legislation that would do essentially that, House Speaker Mike Johnson prevented the Senate bill from coming up for a vote.  President Trump then ordered DHS to pay its workers notwithstanding the lack of an appropriation. 

     On March 27, President Trump issued a memorandum to the Office of Management and Budget (OMB) and DHS ordering them to pay TSA employees.  He stated that “[a]s President of the United States, I have determined that these circumstances constitute an emergency situation compromising the Nation’s security” but cited no statute making such a determination legally relevant.  In addition, he did not specify what appropriation, if any, should be drawn down to provide these payments.  Instead, he simply instructed OMB and DHS to make these payments “consistent with applicable law, including 31 U.S.C. 1301(a)”, the “Purpose Act”.  No available appropriation has a statutory purpose that would include paying TSA officers.  A week later he issued second a memorandum to OMB and DHS directing that “each and every employee of DHS” be paid.  This memorandum again contained an emergency declaration and a citation to the “Purpose Act” and again failed to specify any source of funds for the payments he was ordering. 

     With the Administration not advancing a theory of why this action might be legal, outside analysts have discussed section 90007 of OBBBA.  This section states:

In addition to amounts otherwise available, there are appropriated to the Secretary of Homeland Security for fiscal year 2025, out of any money in the Treasury not otherwise appropriated, $10,000,000,000, to remain available until September 30, 2029, for reimbursement of costs incurred in undertaking activities in support of the Department of Homeland Security’s mission to safeguard the borders of the United States.

These funds are clearly available for CBP agents at the nation’s perimeter.  One could plausibly argue that CBP officers at international airports are indirectly responsible for safeguarding our borders in that anyone to whom they refuse entry will quickly be sent back across those borders.  The Administration contends that ICE and CBP enforcement actions in the country’s interior somehow are part of border security; that position flies in the face of the ordinary usage of language and a long history of distinguishing between border and interior enforcement actions. 

     Even if one accepts the Administration’s unilateral reconceptualization of border enforcement, however, that at most helps fund CBP and the Coast Guard.  As the President’s own memo notes, TSA works only in “our domestic travel system”, not “to safeguard the borders of the United States.” 

     The President directs OMB and DHS “to use funds that have a reasonable and logical nexus to TSA operations” for TSA pay and “to use funds that have a reasonable and logical nexus to the functions of DHS” to pay DHS employees.  This appears to reference the first of the three steps GAO applies to determine the propriety of an expenditure.  This step allows spending an appropriation only on activities necessary to accomplishing the statutory purpose of the appropriation.  That analysis is impossible, of course, without first establishing the appropriation’s purpose.  And for this, GAO cautions “The actual language of the appropriation act is always of paramount importance in determining the purpose of an appropriation.”  (The Supreme Court’s Textualists have nothing on the GAO.)

     The claim that paying DHS employees has “a reasonable and logical nexus” begs the question:  “to what?”  If the Administration had an appropriation whose purpose met this test, surely it would have disclosed it in the presidential memoranda or in response to questions thereafter.  Indeed, if the Administration thought paying DHS employees was permissible under existing law, surely it would have done so in February. 

     Moreover, even if the Administration could satisfy the first part of GAO’s three-part test, it likely would fail the third, which prohibits spending general appropriations on an activity Congress has addressed with a more specific appropriation.  “It is a well-settled rule that even where an expenditure may be reasonably related to a general appropriation, it may not be paid out of that appropriation where the expenditure falls specifically within the scope of another appropriation.”  Congress has addressed compensation for DHS employees in several specific appropriations, all of which barred spending funds after February 14.  The Administration could not lawfully evade that limitation even if it had a broader appropriation whose language plausibly permitted the expenditure. 

     This is not a case of necessity.  President Trump does not care for the terms of the deal Congress is offering.  He can certainly hold out in the hopes of getting something better.  But disregarding the Constitution to avoid bargaining with a coordinate branch of government is no more legitimate for him than it would have been for any of his many predecessors who disliked terms that Congress was offering.   

     President Trump is developing a habit of spending funds in defiance of the Appropriations Clause, the Anti-Deficiency Act, the Purpose Act, and other statutes.  His action to pay servicemembers during last fall’s partial government shutdown was wholly lawless.  His practice of keeping donations from affluent benefactors, and the proceeds from sales of Venezuelan oil he has seized, in accounts he controls outside the U.S. Treasury violates the Miscellaneous Receipts Act.  That Act requires funds to be promptly deposited in the Treasury – where they become subject to the Appropriations Clause. 

     This is important.  Although it may strike some as rather technical when compared with usurping Congress’s power to declare wars in a disastrous war of choice against Iran, Congress’s Power of the Purse is foundational to most other checks on presidential power.  The Court’s unwillingness to enforce various constitutional limitations on presidential power has been defended by arguing that Congress may defund actions of which it disapproves.  If the President may appropriate funds for whatever actions he desires without regard to statutory limits, that fallback constraint no longer exists.  Should Congress ever muster the will to cut off funding for President Trump’s war against Iran or other foreign adventures (Greenland?  Cuba?), we may expect that the President will simply declare a national emergency and order that funds continue to flow based on some wild “nexus” theory, perhaps again not even bothering to state which unrelated appropriation he chose to pilfer. 

     @DavidASuper.bsky.social @DavidASuper1