Prof. Glenn Reynolds (Tennessee, Instapundit) has an item on his Substack about the Vice President Mike Pence / Speech or Debate Clause controversy, based on a Northwestern University Law Review article that he wrote on the Vice President's role in 2008. An excerpt:

Pence, now, is arguing that by presiding on January 6, 2021, he was serving as a legislative official, and thus that his actions and words are covered by the Speech and Debate Clause, making it improper for the special prosecutor to question him. This argument may or may not be correct, but it is not at all crazy, and even in the context of an oped that is more about politics than the law, [former Fourth Circuit Judge Mike ] Luttig should have taken it more seriously.

There are arguments both ways. Textually, the Clause applies only to "Senators and Representatives"—its actual language is "The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

However, presiding over the Senate is surely a legislative function par excellence. In other cases involving governmental immunity, the Court has taken a functional approach: If you're acting as a judge or a prosecutor in an administrative proceeding, for example, you're entitled to the absolute immunity accorded to judges and prosecutors, regardless of your job title. Under this approach, Speech and Debate protection for the Vice President seems like a no-brainer. And the Supreme Court, in Gravel v. United States, held that an aide who functions as an alter ego to a legislator can qualify for legislative immunity, which illustrates that the text's limitation to Senators and Representatives is not absolute.

On the other hand, the Supreme Court has, somewhat bizarrely, taken a narrower view of legislative immunity, which is mentioned in the text of the Constitution, than it has taken with regard to the qualified immunity of government officials generally, and the absolute immunity of prosecutors and, ahem, judges, though the latter is entirely a judicial creation, without any constitutional or statutory roots. It is thus entirely possible that it will be a stickler for textual analysis in this case—though to be fair, where the judicially-invented immunities are concerned, there is no text at all to worry about….

On Wednesday, the Supreme Court decided Helix Energy Solutions Group, Inc. v. Hewitt. The vote in Hewitt was 6-2. Justice Kagan wrote the majority opinion, joined by the Chief Justice and Justices Thomas, Sotomayor, Barrett, and Jackson. This is a heterodox majority opinion that split left and right, much like the heterodox Fifth Circuit en banc majority.

Justice Gorsuch voted to dismiss the case as improvidently granted, known in the lingo as a DIG. In Gorsuch's view, the Court granted review on one question, but after the cert grant, the Petitioner pivoted to focus on another question. Gorsuch also raised the question of whether the regulations were consistent with the statute.

Another reason counsels hesitation, too. Helix Energy does not just dispute the proper application of various regulations. It contends those regulations are inconsistent with and unsustainable under the terms of the statute on which they are purportedly based. While §541.601, §541.602, and §541.604 focus on an employee's salary, Helix Energy submits, the statute requires attention to the employee's duties. See Tr. of Oral Arg. 32–38, 46–47; Brief for Petitioners 41–44; Reply Brief for Petitioners 20–24; seegenerally 29 U. S. C. §213(a)(1). Understandably, the Court refuses to entertain this larger statutory argument because Helix Energy failed to raise it earlier in the litigation. Ante, at 7, n. 2. But the fact that Helix Energy forfeited such a foundational argument seems to me all the more reason to leave any question about §541.602 to another day. 

However, in Justice Gorsuch's view, the petitioner forfeited this issue, so it was not proper to resolve the question. Gorsuch seems to DIG a lot. Last term he would have DIG'd in Kemp v. United States and Shoop v. Twyford

Justice Kagan replied that Gorsuch's DIG concern had merit, but found that the question resolved was a "necessary 'predicate'" to the question presented. Therefore, this case was appropriate to resolve on the merits.

³We appreciate JUSTICE GORSUCH's concern that the question we ask and answer is not quite the one Helix's petition for certiorari urged upon us. . . . Resolution of that §602(a) issue is a necessary "predicate to an intelligent resolution of the question presented." Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996). Indeed, Helix's counsel urged us to answer it—even assuming Helix would lose—rather than dismiss this case as improvidently granted. See Tr. of Oral Arg. 39–40 ("I would prefer that you just answer the question"—even if "adversely"—"because I don't think there's a basis for a DIG"). And our resolution of that predicate issue itself reveals the answer to Helix's initial formulation of the question presented.

What about the statutory argument? Kagan likewise found the issue was forfeited:

At argument in this Court, Helix suggested that the salary-basis component of the regulations is an impermissible extrapolation from the statutory exemption for workers "employed in a bona fide executive . . . capacity." 29 U. S. C. §213(a); see Tr. of Oral Arg. 33–37. But Helix did not raise that argument in the courts below.

So there was no need to decide the question here.

Then, there was Justice Kavanaugh. Let me ask you to make a prediction. What do you think Justice Kavanaugh did in this case? (A) found the issue was forfeited and let it go; (B) found the issue was forfeited and said the Court should resolve it in the appropriate case; (C) found the issue was forfeited but opined on it anyway. If you picked (C), you have been paying attention to Justice Kavanaugh's five years on the Court.

Here is the final paragraph of Kavanaugh's dissent:

One last point: Although the Court holds that Hewitt is entitled to overtime pay under the regulations, the regulations themselves may be inconsistent with the Fair Labor Standards Act. See, e.g., Brief for State of Mississippi et al. as Amici Curiae 7–10; Ante, at 1–2 (GORSUCH, J., dissenting). Recall that the Act provides that employees who work in a "bona fide executive . . . capacity" are not entitled to overtime pay. 29 U. S. C. §213(a)(1). The Act focuses on whether the employee performs executive duties, not how much an employee is paid or how an employee is paid. So it is questionable whether the Department's regulations—which look not only at an employee's duties but also at how much an employee is paid and how an employee is paid—will survive if and when the regulations are challenged as inconsistent with the Act. It is especially dubious for the regulations to focus on how an employee is paid (for example, by salary, wage, commission, or bonus) to determine whether the employee is a bona fide executive. An executive employee's duties (and perhaps his total compensation) may be relevant to assessing whether the employee is a bona fide executive. But I am hard- pressed to understand why it would matter for assessing executive status whether an employee is paid by salary, wage, commission, bonus, or some combination thereof. In any event, I would leave it to the Fifth Circuit on remand to determine whether Helix forfeited the statutory issue. But whether in Hewitt's case on remand or in another case, the statutory question remains open for future resolution in the lower courts and perhaps ultimately in this Court.

This is a classic Kavanaugh paragraph. Take an issue which the parties didn't actually present, signal strongly what you think (using words like "questionable," "dubious," and "hard-pressed"), and hope the lower courts follow the lead. This paragraph is in keeping with the Kavanaugh concurrences in Dobbs and Bruen. Again, there is nothing moderate or restrained about this approach. Kavanaugh has this fixation to reach out and touch questions that are not necessary to decide.

Justice Kagan dealt with this aspect of the dissent with a vicious parenthetical.

. . . Helix did not raise that argument in the courts below. Following our usual practice, we therefore decline to address its merits. See, e.g., Kingdomware Technologies, Inc. v. United States, 579 U. S. 162, 173 (2016); see post, at 2 (GORSUCH, J., dissenting) (agreeing that Helix "failed to raise" the argument, and also declining to express a view of its merits); but cf. post, at 4–5 (KAVANAUGH, J., dissenting) (recognizing that the argument may be forfeited, but opining on it anyway).

I think this parenthetical can be added to just about any Kavanaugh separate writing: (issue is irrelevant, but opining on it anyway).

Once again, Gorsuch practiced judicial minimalism. Kavanaugh practiced judicial maximalism. Justice Alito should have joined the bulk of the dissent, with the exception of the last paragraph. Let Kavanaugh stand alone on these frolics and detours.

On Wednesday, the Supreme Court decided Helix Energy Solutions Group, Inc. v. Hewitt. The facts of the case are straightforward enough: does a "tool-pusher" who makes more than $200,000 per year, while working on an offshore oil rig, qualify for overtime pay? The law is, admittedly, complex. There is an intricate statutory and regulatory framework at play. I won't try to summarize those twists and turns here. But underlying these legal issues is a normative question: should someone making so much money be eligible for overtime? How would a liberal vote here? How would a conservative vote here?

By a 6-2 vote, the Supreme Court ruled that the employee was not paid on a "salary basis," and was thus eligible for overtime. Justice Kagan wrote a characteristically lucid decision parsing a difficult textual conflict. It is a breeze to read. Justice Gorsuch would have DIG'd the case (more on later). Justice Kavanaugh wrote a short dissent, which was joined by Justice Alito (more on that later as well).

I have been tracking this Texas case for several years as it wound its way through the Fifth Circuit. And I think it is worthwhile to note that six Justices affirmed a a decision of the en banc Fifth Circuit. And that opinion was written by–so we're told–one of the biggest hacks in the judiciary: Judge Jim Ho. Indeed, the Hewitt en banc majority had a heterodox makeup: Ho, Smith, Stewart, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham, and Wilson. In dissent were Judges Jones, joined by Owen (now Richman), Wiener, Elrod, and Southwick. The Fifth Circuit truly is the most interesting circuit. I flagged this case in my State of the Fifth Circuit Address from last year.

Justice Kagan favorably quotes Ho's opinion:

So as the Court of Appeals remarked, nothing about today's decision should "come as a surprise." 15 F. 4th, at 296.

While Kagan referred to Jones's dissent as "more expansive":

Six judges dissented in two opinions. The more expansive dissent argued that Hewitt's compensation "satisfied the salary basis test" of §602(a). Id., at 307 (opinion of Jones, J.). It further concluded that §604(b) is not applicable at all to high-income employees— i.e., those falling within the HCE rule because they earnover $100,000. See id., at 309.

Judge Ho departed from Judge Jones, whom I labelled as the Court's standard measure of judicial conservatism. Perhaps Justice Kagan's affirmance of Judge Ho's opinion bolsters that departure in this case, where judicial conservatism and textualism are in tension.

Finally, I would like to flash-back to Judge Wiener's en banc dissent:

I concur in Judge Jones's thorough dissent. But, as the panel dissenter and one of today's en banc dissenters, I write separately—and at times repetitively—to emphasize how common sense and a reasonable reading of the law combine to demand a result opposite the one reached originally by the panel majority and today by the en banc majority. Frankly, I cannot fathom how a majority of the active judges of this court can vote to require Helix to pay overtime to Hewitt, the supervisor of 12 to 13 hourly, hands-on workers, when he was already paid more than twice the cap of $100,000 per annum for overtime eligibility. And, if that is not incomprehensible enough, keep in mind that Hewitt worked for Helix no more than half of the days during the calendar years at issue!

I hope Judge Wiener can now "fathom" how six Justices of the Supreme Court, conservative and liberal alike, can reach this conclusion.

If you were active in the conservative legal movement in the 1990s and early 2000s, Mike Luttig was a legal giant. He was a prominent circuit judge who was a SCOTUS short-lister. But I started law school in 2006. The first time I ever heard of Luttig was at the IJ Summer Boot Camp after my 1L year. Someone mentioned that Luttig had stepped down from the Fourth Circuit to become the general counsel of Boeing. I didn't give it much thought at the time. Over the next decade, I largely forgot about Luttig. He faded into legal obscurity. Indeed, I never saw him at a single Federalist Society meeting. If you graduated law school during the Obama years, there was no need to know who Luttig was, unless you skimmed an old Jeff Toobin or Jan Crawford book.

Then came Trump. Suddenly, Luttig, and some other stalwarts of the Reagan/Bush era, came to the forefront to criticize the Republican president. The media gladly gave their claims attention, because it was right-on-right action. Luttig's apex came in the run-up to January 6, 2021. As we all heard, over and over again, Luttig advised Vice President Mike Pence. Luttig also told Pence to disregard the views of John Eastman (who had clerked for Luttig). Some claimed Luttig saved the Republic! Alas, Luttig's moment in Pence's corner have come to an end.

The former-Vice President will resist the Special Counsel's subpoena based on the Speech or Debate Clause. I was skeptical of this claim as a textual matter, though Reb Brownell make a strong case based on judicial and congressional precedent. I'll concede this is a question on which the Supreme Court has not directly opined, and that Pence has a right to raise the argument as an institutional prerogative.

Luttig disagrees. He took to the New York Times with a piece titled, Mike Pence's Dangerous Gambit. The tenor of the piece is unexpected. We do not get a sober analysis of the text and history of the Speech or Debate Clause. Instead, Luttig repeatedly criticizes Pence's lawyers for giving the former Vice President bad advice. Luttig also calls out how much money Pence's lawyers are earning. Unsurprisingly, Luttig thinks these lawyers are leading Pence astray.

• If Mr. Pence's lawyers or advisers have told him that it will take the federal courts months and months or longer to decide his claim and that he will never have to testify before the grand jury, they are mistaken. We can expect the federal courts to make short shrift of this "Hail Mary" claim, and Mr. Pence doesn't have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury.
• Inasmuch as Mr. Pence's claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country's history where it was thought imperative for someone in a vice president's position, or his lawyer, to conjure the argument.
• Mr. Pence undoubtedly has some of the finest lawyers in the country helping him navigate this treacherous path forward, and they will certainly earn their hefty fees. But in cases like this, the best lawyers earn their pay less when they advise and argue their clients' cases in public than when they elegantly choreograph the perfect exit in private — before their clients get the day in court they wished for.
• Mr. Pence's lawyers would be well advised to have Jack Smith's phone number on speed dial and call him before he calls them. The special counsel will be waiting, though not nearly as long as Mr. Pence's lawyers may be thinking. No prosecutor, least of all Mr. Smith, will abide this political gambit for long. And Mr. Pence shouldn't let this dangerous gambit play out for long. If he does, it will be more than he wished for.

Let me translate Luttig's column: "Mike Pence wouldn't listen to me, so let me blast his lawyers in the N.Y. Times."

Luttig argue that Pence is undermining his legacy, undermining his role on January 6:

The former vice president should not want the embarrassing spectacle of the Supreme Court compelling him to appear before a grand jury in Washington just when he's starting his campaign for the presidency; recall the unanimous Supreme Court ruling that ordered Richard Nixon to turn over the fatally damning Oval Office tapes. That has to be an uncomfortable prospect for Mr. Pence, not to mention a potentially damaging one for a man who — at least as of today — is considered by many of us across the political spectrum to be a profile in courage for his refusal to join in the attempt to overturn the 2020 election in the face of Donald Trump's demands. And to be clear, Mr. Pence's decision to brand the Department of Justice's perfectly legitimate subpoena as unconstitutional is a far cry from the constitutionally hallowed ground he stood on Jan. 6.

Pence would be well advised to follow his legal counsel, and disregard the New York Times.

One final note. Luttig is often promoted as a "legal conservative." Luttig may have been an active member of the conservative legal movement in the 1990s and early 2000s, but he has been MIA for about fifteen years. Indeed, in recent years, he has consistently taken positions that are conducive to progressives, such as his brief on the Second Amendment. As far as I can tell, he did not say a word about Dobbs, the crowning moment of success for the conservative legal movement. I think there should be a statute of limitations for calling a person a legal conservative. Show me what you've done lately.

This bonus episode offers an interview of Bruce Schneier, the prolific security guru, about his latest book, A Hacker's Mind: How the Powerful Bend Society's Rules, and How to Bend Them Back. As usual with Bruce's books, it is a good read, technically up to date and approachable. Much of the book, and of the interview, explores Bruce's view that hacking – subverting the intent of a system of rules without actually breaking the rules – has much in common with lawyering. Finding ways to subvert a Microsoft program, Bruce argues, is not much different from exploiting loopholes in airline mileage programs or finding ways to count cards at a casino without letting the casino know what you're doing. And those exploits are not really so different from what lawyers do when they hunt for unexpected tax loopholes to shelter income.

The analogy only goes so far, as Bruce admits. It is often hard to actually define the "intent" that is being subverted, or to draw a line between subversion within the rules and just plain rule-breaking. And hacking, for all its underdog-beats-The-Man romance, is just a tool, available to everyone, including The Man. The world's best computer hackers mostly work for governments or corporations these days, and the same is true for the world's best legal hackers.

Still, exploring the parallels opens new ways of thinking for those of us who work at the intersection of tech and law. Among the new insights are the development of software programs that diagram statutory and regulatory codes and the likelihood that artificial intelligence will someday soon be red-teaming legislation in real time.

Download 444th Episode (mp3)

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