Walter Olson
As Eugene Volokh points out in a recent post, some progressives and gun control advocates blasted the American Civil Liberties Union when it sided with the National Rifle Association against then-New York Gov. Andrew Cuomo’s use of financial regulation for purposes of retaliating against the group’s pro-gun advocacy. But the civil liberties group was right to take the stand it did, and has been amply vindicated as the Supreme Court’s unanimous opinion in NRA v. Vullo now stands as a vital precedent in resisting unconstitutional actions by the Trump administration regarding the Jimmy Kimmel episode and pressure on media companies, the Harvard case, penalty orders against law firms, and more. (Here are Cato’s brief in the Vullo case, my write-up on the outcome, and more links.)
That’s part of a wider pattern. A number of other big cases and doctrines that tended to curtail the power of the executive branch, and were duly assailed from the left at the time, have emerged as important sources of arguments against overreaching Trump moves. That would include the major questions and nondelegation doctrines, as colleague Ilya Somin noted this summer, and is likely also to extend to Loper Bright, overturning the old Chevron doctrine, which granted deference to agencies’ interpretations of their own laws (examples on tariffs, FOIA, and gun rights).
It’s an old story in the law: Protect your opponents’ rights, and when the wheel turns, you may find that you’ve protected your own as well.
Relatedly, it’s good to see this piece at the Free Press by Gabe Kaminsky in which Lawson Bader of Donors Trust, an important figure in conservative philanthropy, stands up for the right of Open Society, Ford, and other liberal foundations not to be targeted for investigation and harassment when there is no actual evidence of illegality against them. That possibility is looming larger with President Trump’s executive order of last week calling for federal action to “disrupt” opposition speech and organizing that supposedly promotes violence. Excerpts:
Anyone who threatens the nonprofit status of law-abiding organizations “narrows the important boundary between citizen and state,” Bader said.…
“When Stephen Miller starts talking about an organized strategy against left-leaning organizations, that’s where the White House’s rhetoric gets dangerous,” Bader told The Free Press. “If an organization feels strongly about abortion or perceived income inequality, I may disagree with their motivations, but the way we battle it out is in civil society.”…
“The whole conversation needs to tone down,” Bader said. “I think it’s going to come back to haunt us.”
Indeed it is, unless principled and cool heads prevail.