Heidi Kitrosser

@heidikitrosser

Law professor focusing on constitutional law, especially free speech, the separation of powers, and government secrecy. Friend to all dogs and cats. Champion procrastinator.

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Heidi Kitrosser@heidikitrosser· 20d

I'm reminded of this classic Far Side.

Classic Far Side panel featuring a cat looking into an open, front-loaded washing machine with arrows pointing toward it with the words, "CAT FUD." A dog is hiding in the corner, thinking: "Oh please, oh please ...."

Heidi Kitrosser@heidikitrosser· 20d

This is what shows up right now as the top few results for comments when I select "posted (newer-older)" for order of results. Nothing posted since 7/15.

Top three results from regulations.gov comments page for the proposed rule referenced above. They each show a posting date of July 15, 2026. The screenshot also shows that I selected the ordering: "Posted (newer-older)"

Heidi Kitrosser@heidikitrosser· 22d

Cartoon by Sophia Warren for The New Yorker. Shows a woman in bed, in the dark, staring at her phone with bleary eyes. The caption reads: “the princess and the one negative comment.”

Heidi Kitrosser@heidikitrosser· 22d

Re. OMB's damaging & unlawful proposed rule to politicize federal grants -- I notice that they're way behind on posting comments. Nearly 500,000 comments received, only 54,000 posted thus far. The comments deadline was a week ago.

Screencap from the proposed rule's homepage for document comments at regulations.gov. It shows that the comments posted thus far number 54.01K, and that comments recdeived number 496,755

Heidi Kitrosser@heidikitrosser· 26d

Re-reading @kimlanelaw.bsky.social 's essential work on Autocratic Legalism. (85 U. Chi. L. Rev. 545 (2018)) Does this (from her introduction) sound familiar?

Passage with two bits of text highlighted:

As I ar-
gue in this Essay, democracies are not just failing for cultural or economic or political reasons. Some constitutional democracies are being deliberately hijacked by a set of legally clever autocrats,
who use constitutionalism and democracy to destroy both. Buried in the story of decline, then, is a story of constitutional
malice.

They use their democratic mandates to launch legal reforms that remove the checks on executive power, limit the challenges to their rule, and undermine the cru-
cial accountability institutions of a democratic state.

Heidi Kitrosser@heidikitrosser· 26d

Chicago area today. Pull out those KN or N 95 masks if you have to be outside!

Weather channel air quality post showing an air quality reading of 224 / very unhealthy in Evanston, IL today.

Heidi Kitrosser@heidikitrosser· Jul 7

Same doggie, same.

Photo of a cat looking weary while lying flat in his bed with his head propped up on the side of the bed.

Heidi Kitrosser@heidikitrosser· Jun 30

Okay, how did C.J. Roberts not spontaneously implode from the contradictions???

Also from Roberts' opinion in Cook: "We see no reason, however, why our central bank ought to be 'trapped in amber' any more than any other aspect of our constitutional scheme."

Heidi Kitrosser@heidikitrosser· Jun 30

From Roberts' opinion in Cook. Weird, it's almost like the Constitution does not categorically demand unfettered presidential control over officers. I'll have to double-check the Constitution ... maybe it says something about this reasoning pertaining only to the Fed.

We disagree, as did “the founders of our Government and framers of our Constitution” when they “were actively participating in public affairs.” Myers v. United States, 272
U. S. 52, 175 (1926). They knew from experience (and Hamilton reminded them) of the calamities that could arise from even the “suspicion” of political manipulation of monetary policy. Report on a National Bank 331. So when they established the First Bank of the United States, they guaranteed its independence from Presidential control. Their successors did the same for the Second Bank.

Heidi Kitrosser@heidikitrosser· Jun 30

I'm thinking of that Natalie Portman / Hayden Christensen meme: "You're talking about unitary executive theory and presidential immunity, right?" "RIGHT?" (pictured quote is from Gorsuch's concurrence in Slaughter)

"Influential as these ideas were, they met with some hard realities as they progressed from the academy into the halls of government."

Heidi Kitrosser@heidikitrosser· Jun 29

I take some comfort, however small, in this statement from the Roberts opinion:

Because the FTC’s activities fall well within the heartland of executive power, we have no occasion today to definethe bounds of what such power entails. As our precedents recognize, not all offices created by Congress necessarily come with executive or even sovereign power attached. See, e.g., Buckley, 424 U. S., at 137–138 (contrasting the “discretionary power to seek judicial relief ” with powers “of an investigative and informative nature,” which may “be regarded as merely in aid of the legislative function of Congress”).

Heidi Kitrosser@heidikitrosser· Jun 29

From the Roberts opinion in Slaughter. Spare me. And to be clear, I am a huge fan of political accountability! I wrote a whole book called "Reclaiming Accountability!" But as I wrote there & in many other places, UE theory does NOT ensure accountability. In many cases, it does the opposite! But 1/2

Quite the contrary. “In its valiant search for reliance interests,” it is “the dissent [that] somehow missesmaybe the most important one: the reliance interests of theAmerican people . . . in the preservation of our constitutionally promised liberties.” Ramos v. Louisiana, 590 U. S. 83, 110–111 (2020) (plurality opinion of GORSUCH, J., joined by, inter alios, SOTOMAYOR, J.). “The diffusion of power carries with it a diffusion of accountability.” Free Enterprise Fund, 561 U. S., at 497. When power is exercised well, the peopleknow whom to thank; when power is exercised poorly, theyknow whom to blame—and whom to fire. That is the very premise of our system of government.

Heidi Kitrosser@heidikitrosser· Jun 27

Rude cat won’t share chair. #caturday

Photo of a cat curled up on a green chair next to a laptop computer.

Heidi Kitrosser@heidikitrosser· Jun 26

Though the proposed NDA provides a definition for confidential information, the definition is still impermissibly vague in violation of the First and Fifth Amendments. To give several examples of vagueness and unbridled discretion within the definition:
• “[M]ay include, but not be limited to”: This provision wipes away whatever narrowing function might have been served by the examples that follow it. It indicates that there are no subject matter or related limits on the information that could constitute “Confidential Government Information.” A similarly-worded provision of the Pentagon policy prohibiting press coverage was overturned on summary judgment earlier this year in part because it was so unreasonable as to provide the government “unbridled discretion” in its enforcement.43
• “Should not be disclosed under applicable law, federal regulation, or government-wide policy”: The term “government-wide policy” is undefined, and its distinction from “applicable law [or] regulation” suggests that it is something different than either of those two things. The term “should” in this phrase is also vague, implying that the information may not necessarily fall under law, regulation, or “policy.” These factors again place unbridled discretion to determine what is “Confidential Government Information” in the hands of officials.
• “[W]hether or not marked as such”: This phrase considerably enhances officials’ already broad discretion to identify CGI by omitting a crucial tool that could be used to confine that discretion: visible markings that place employees and officials on no

Heidi Kitrosser@heidikitrosser· Jun 26

Whatever one thinks of NSPPRs and the Snepp and Edgar decisions, the proposed NDA would go leaps and bounds beyond them. OPM itself refers to the NDA as “governmentwide”35 and as reaching “across Government.”36 OPM’s proposal is not limited to national security agencies or personnel, nor to any other subparts of the federal government. Nor is it restricted to national security information or designed to cover a narrow class of classified or sensitive information. Indeed, as discussed below, in our discussion of the proposed NDA’s vagueness, the NDA would give officials virtually unlimited discretion to deem something “Confidential Government Information.” The only respect in which the proposed NDA is more limited than existing NSPPRs is that the former applies for five years after one’s federal employment, rather than for life. Given the scope of the subject matter and personnel covered by the proposal, however, it is cold comfort that it would impose a prior restraint “merely” for the entire length of one’s employment plus five years.
IV. The Proposed NDA is Vague and Encourages Standardless Discretion in Enforcement.
The definition of “Confidential Government Information” in the proposed NDA is impermissibly vague in violation of the First and Fifth Amendments, allowing government employers to discipline employees and former employees with unbridled, standardless discretion.

Heidi Kitrosser@heidikitrosser· Jun 26

III. The Proposed NDA Effectively Would Take a System That Is Itself Controversial and Prone to Abuse – National Security Pre-Publication Review – and Extend its Scope Dramatically
The proposed NDA resembles a monstrously bloated version of a system that itself is ripe for abuse: national security pre-publication review (NSPPR). NSPPR amounts to a requirement “that current and former U.S. government officials who have or had” access to classified information “submit their writing for review by the U.S. government prior to publication.”27 As Professors Jack Goldsmith and Oona Hathaway – former appointees in Republican and Democratic administrations, respectively – write, NSPPR “constitutes the largest system of prior restraint on speech in U.S. history,” and it “drives talent away from government service, leads to an impoverished public discourse, and causes many former government officials simply to opt out” of public writing or speaking.28
Where NSPPRs have been upheld, it has been due to their close nexus to national security and classified information.

Heidi Kitrosser@heidikitrosser· Jun 26

While any restriction on speech potentially implicates the First Amendment, prior restraints on speech come with a “heavy presumption” of unconstitutionality.21 The presumption against prior restraints was first recognized by the Supreme Court in Near v. Minnesota, which distinguished between libel laws that punish defamatory speech after it is made and a law purporting to enjoin such speech before it is published.22 As the Court noted, the particular distrust of prior restraints dates back to Justice Story’s and William Blackstone’s commentaries on the law, both of which distinguish the punishment of unlawful speech from impermissible “prior” or “previous” restraints on speech.23 Nearly a century later, American law has “steadfastly preserved the distinction between prior restraints and subsequent punishments.”24

Heidi Kitrosser@heidikitrosser· Jun 26

II. The Proposed Government-Wide NDA Would Function as a Prior Restraint on Government Employees' Speech

Heidi Kitrosser@heidikitrosser· Jun 26

Furthermore, the proposed NDA is in no way redeemed by its allowance for employees to exercise “any rights protected under the Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b), or any other applicable federal law that permits disclosure.”12 Though an important piece of legislation, the WPA does not come close to protecting the full array of public employee speech shielded by the First Amendment. For example, the WPA applies only to disclosures on a very limited set of topics.13 Furthermore, to obtain relief under the Act, an employee first must exhaust their administrative remedies. Those remedies entail navigating two offices staffed with political appointees: the Office of Special Counsel and the Merit Systems Protection Board.14 The Act’s limited coverage, the procedural hurdles to obtaining relief, and the length, expense, and uncertainty of putting up a legal fight, bode poorly for the Act’s potential to mitigate the NDA’s chilling effect. Even a more robust Act, however, would be a poor substitute for the First Amendment rights abridged by the proposed NDA.
Apart from the fact that the proposed NDA would exceed the boundaries of public employee speech doctrine, it would abridge current and former government employees’ free speech rights in several additional ways. First, it would operate as a presumptively unconstitutional prior restraint. Second, it would effectively institute a dramatic expansion of the restrictive pre-publication requirements currently in place for employees who have access to classified information. Third, the NDA’s government-wide application to a poorly defined and potentially limitless array of “Confidential Government Information” (CGI) would be unconstitutionally vague and overbroad.15 Finally, all of these factors, combined with the harsh penalties cited in the proposed NDA – including termination, bars on future employment and contractor status, and civil and criminal penalties – and the NDA’s applicability through five years …

Heidi Kitrosser@heidikitrosser· Jun 26

I. Use of The Proposed Government-Wide NDA Would Far Exceed the Bounds of First Amendment Doctrine Regarding the Free Speech Rights of Public Employees
As a unanimous Supreme Court reaffirmed in 2014, “[s]peech by citizens on matters of public concern lies at the heart of the First Amendment … This remains true when speech concerns information related to or learned through public employment.”1 Given the public’s interest in receiving the “informed opinion[s]” of government employees, and those workers’ own expressive interests, the government does not have carte blanche to curtail its employees’ speech.2 To the contrary, under longstanding First Amendment precedent, a public employer may not punish an employee for speaking, as a citizen, on a matter of public concern unless the speech interests at stake are outweighed by the government’s interests, “as an employer, in promoting the efficiency of the public services it performs through its employees.”3 Furthermore, a broadly applicable, ex ante policy restricting public employee speech is much more troubling, from a First Amendment perspective, than the individual, post hoc disciplinary decisions at issue in most of the public employee speech jurisprudence. Below, we elaborate on these points to detail several respects in which the proposed, government-wide NDA runs well afoul of First Amendment doctrine concerning public employee free speech rights.

Heidi Kitrosser@heidikitrosser· Jun 19

This is obviously terrible on a humanitarian level but it's also yet another example of our shooting ourselves in the foot over and over again. This is how you get new global epidemics and new strains of disease. Here's a snippet from hiv.gov, which I suspect will not be up for much longer.

What is PEPFAR?
The U.S. President's Emergency Plan for AIDS Relief (PEPFAR) saves lives, prevents millions of HIV infections, and supports several countries to achieve HIV epidemic control—all while significantly strengthening global security.

PEPFAR is the largest commitment by any nation to address a single disease in history, enabled by strong bipartisan support across ten U.S. congresses and four presidential administrations, and through the American people’s generosity. PEPFAR shows the power of what is possible through compassionate, cost-effective, accountable, and transparent American foreign assistance.

Since PEPFAR’s inception in 2003, the U.S. government has invested over $100 billion in the global HIV/AIDS response, saving over 25 million lives, preventing millions of HIV infections, and supporting several countries to achieve HIV epidemic control, all while significantly strengthening global health and economic security.

PEPFAR works closely with partner countries toward achieving HIV/AIDS epidemic control while promoting the long-term sustainability of their responses. It forges strategic partnerships with the private sector that support and

Heidi Kitrosser@heidikitrosser· Jun 18

As I recounted to my husband …

Text message that says:

Also, I was attacked by a red wing blackbird on the way over! I forgot not to walk on that side of Hinman and it tried to dive bomb me! I ran across the street, clutching my head!
Delivered

Heidi Kitrosser@heidikitrosser· Jun 10

Took these photos last year on a Surfliner trip:

Beautiful beach view taken from a train along the northern San Diego coast.

Another beautiful beach view from the train, this one gives a closer look at the water.

Heidi Kitrosser@heidikitrosser· Jun 9

An oldie, but still one of my favorites, of this late, great duo.

Very focused looking chiweenie dog, light brown in color, stares across the room at an orange cat. The cat stares back at the dog, but looks far less engaged, even a bit bored. Each is propped up on an item of furniture, so they’re staring from roughly the same height.

Heidi Kitrosser@heidikitrosser· Jun 7

These videos from election night 2008 were bittersweet as well, given all that’s happened since.

Screenshot from video showing an African American man on the phone on election night, 2008, looking emotional and saying, “I can’t, I can’t believe this man.”

Scene from Obama’s election night 2008 acceptance speech in Chicago, with the cc words: “all things are possible.”

Heidi Kitrosser@heidikitrosser· Jun 7

Seeing this in an exhibit at the Obama Center (soft opening, a friend had tickets) got to me. I’m hardly a big JM fan (he did bring us Sarah Palin), but the contrast…

Screenshot of John McCain during a 2008 town hall in which he famously said of Obama, “he’s a decent family man.”

Heidi Kitrosser@heidikitrosser· Jun 6

Fresh supply of kittens at the local cat shelter! #caturday

Photo of a large picture window with the words, “Paws & Claws cat rescue” printed on it, and with the window shelf filled with small grey kittens and one grey adult cat.

Heidi Kitrosser@heidikitrosser· Jun 4

I truly regret that we live in a world that has led me to think way way way too much about sociopathy and psychopathy. health.clevelandclinic.org/psychopath-v...

Chart from the Cleveland Clinic exploring similarities and differences between psychopathy and sociopathy. The common traits listed are: * Lack of empathy or remorse; * Takes no responsibility for their actions; * Doesn't follow rules, *Doesn't respect boundaries.

Heidi Kitrosser@heidikitrosser· Jun 4

Aw. This was our cat at the vet (Evanston Animal Hospital) a few months ago.

Adorable white cat with rust spots staring out from under a blanket on the vet’s examination table.

Heidi Kitrosser@heidikitrosser· May 31

I was not expecting to see a wild turkey emerging from tall grass beside a beach on Cape Cod. This is about as close as I wish to get to Jurassic Park!