Sunday, November 29, 2020

The 20-day coup (and counting)

Everyone is sharing the Washington Post story on Trump's 20-day attempted coup, so here it is. It does not change my overall pessimism about how close we came or where we now stand. A few notable things:

• While the story describes the fringiest of the fringe taking control in the White House and the campaign, no one (other than some lawyers) walked away or spoke out against what he was doing. Most at least humored or appeased him. No one went on the record for this story. All of which enabled the narrative about fraud and a stolen election as much as Rudy's direct insanity.

• In her letter releasing transition funds, GSA head Emily Murphy insisted she delayed her decision and released funds "independently," without direct or indirect pressure from anyone, including the White House. The Post states that it happened only when Trump, after "prodding," "agreed to permit the General Services Administration to formally initiate the Biden transition." Someone is not telling the truth.

• The article's narrative is that this was a 20-day thing, running from Election Day until GSA acknowledged the transition on November 23. But Trump's effort to undo the election did not end on the 23d. Or now. The efforts continue--through his interviews on Fox News, his GOP allies in Pennsylvania seeking to change state law to override the popular vote, and the constant din of allegations of fraud, stolen elections, and illegitimate successors that have undermined Biden, likely irrevocably.

• Even with this new information, no one in the GOP establishment has spoken out. The story as they see it is "he just didn't have the facts to make the argument," rather than "he is genuinely trying to pull down democracy."

Posted by Howard Wasserman on November 29, 2020 at 03:12 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Updating the Standing section on my Fed Courts syllabus

1) Constitutional and Statutory Considerations                         

2) Taxpayer Standing                                                                

3) Third-Party and Other Standing

4) Presidential Standing                                  

5) Legislative Standing to Sue                                            

I am ready for the new semester. I also have another source for the section on SCOTUS jurisdiction and how hard it is to get a case to the Court.

Posted by Howard Wasserman on November 29, 2020 at 02:46 PM in Howard Wasserman | Permalink | Comments (0)

Saturday, November 28, 2020

More state universality

A judge in the Eastern District of Kentucky enjoined a Kentucky executive order closing schools, finding it violated the First Amendment rights of a K-12 religious school. (H/T: Eugene Volokh). It is unsurprising in its analysis--the order was not generally applicable because it applied to K-12 schools but not preschools or colleges and universities. Whatever--I have given up reading these decisions as anything other than a sub silentio reading of the First Amendment to opt-outs for religious institutions and behaviors, no matter the societal costs.

More interesting to me is that the court made the injunction universal/non-particularized, prohibiting enforcement of the EO as to all religious schools, not only the plaintiff. The court did not use the words universal or non-particularized and did not acknowledge the ongoing scope-of-injunction controversy, while providing further evidence that this issue is not limited to challenges to federal law. I presume the key here is that the lawsuit was brought not only by the school, but also by the Attorney General on behalf of the Commonwealth. "Complete relief" for the AG must protect all members of the public.

In the Before Times of 2018, I spoke on universal injunctions before the meeting of the National Association of Attorneys General. I suggested they might be of two minds on the issue. On one hand, universality works against them as the defendants to be enjoined from enforcing many state laws. On the other hand, they want universality when suing the federal government to stpp. This is a third hand--the AG suing the Governor to stop enforcement of a provision of state law.

Posted by Howard Wasserman on November 28, 2020 at 12:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Evidentiary problems (Updated)

Election-law attorney Marc Elias has kept a running tally of the Trump Campaign's litigation record, which stands at 1-38 and has a chance of getting to 50 losses. As his litigation efforts flail, however, his political efforts have succeeded--not in keeping him in the White House (which may not even be the point), but in destroying public confidence in electoral and political processes, undermining the Biden presidency before it begins, and in creating space for an army of state-level mini-Trumps to make noise (even if unsuccessful) about overriding the results of the election.

The difference is evidence.

Trump has lost in court because courts have strict rules about what constitutes valid allegations and evidence (under oath, reliable, credible, based on actual understanding of things such as how elections work, and subject to testing) and they are bound by the allegations and evidence in making decisions. As Judge Bibas wrote, "calling an election unfair does not make it so. Charges require specific allegations and then proof." On the other hand, Trump has won in hotel ballrooms and porn-shop-adjacent parking lots because evidence is whatever nonsense, however fantastical, can be spouted at the highest volume with the straightest face. And decisionmakers (the voters who believe the election was stolen) can base their beliefs on whatever they want.

Whither legislative bodies? They have rules about what constitutes valid evidence--witnesses are under oath and cannot lie. But no external rules limit what legislators can hear or use in reaching their decisions. Which leaves room for people like Pennsylvania Sen. Doug Mastriano, who is leading a legislative move to appoint the state's electors. And he can base his efforts on "findings" of "substantial irregularities and improprieties associated with mail-in balloting, pre-canvassing, and canvassing" based on "facts and evidence presented and our own Board of Elections data" that the presidential election (although, miraculously, no other elections within Commonwealth), was "irredeemably corrupted."

But where is the evidence of this irredeemable corruption? There is none, at least nothing that any court has taken seriously or could rely upon. So it must be that legislatures, or at least some legislators, believe they can and should base decisions not on what suffices in court, but on what suffices in ballrooms and parking lots. In a legislature, unlike in court, it is enough to call an election unfair and act on that call. And that is the problem.

This is not new. Legislators often make bad policy off bad evidence and bad findings. Policy can be undone. The votes of almost 7 million people cannot. And neither can a widespread belief that the system is corrupt whenever your preferred candidate loses. That Mastriano's effort will fail is beside the point. That he is making it and that it will be taken seriously suggests we have crossed some lines.

Updated: Phillip Bump at the Washington Post calls for the Republicans to release the evidence or shut up, then defines what is and is not evidence. But there is no agreement on what constitutes valid evidence, at least outside of court. So Trumpists will reject the premise of Bump's argument.

Posted by Howard Wasserman on November 28, 2020 at 12:09 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

We have not pulled back from the edge

Molly McKew argues that we did, if barely. But evidence suggests we still are heading off the cliff.

The election was close, no massive repudiation of the person who history will show as a worse president than the guy who started the Civil War and the guy who allowed the South to win. Jeff Greenfield argues that the past month has revealed the vulnerabilities in the political and electoral systems; it is a blueprint for a future authoritarian who is more competent, represented by better attorneys, able to come up with better facts, able to influence more state and local officials, and working with a marginally closer election. Trump has succeeded, aided by state and local officials, in convincing majorities of Republican voters that the election was stolen, through repetition and oathless hotel-ballroom show "hearings"* at which fanciful allegations are presented and accepted as true (unlike in court, where there are penalties for lying). Republicans--the same Republicans who have enabled, supported, and never abandoned the President through his antics, no matter how fanciful and dangerous to the democratic process--gained in the House and Senate, giving them a stronger position come January. The ongoing national political sorting reflects badly on Democrats' long-term prospects in Congress.

[*] A new one has been announced for Arizona for Monday.

The Biden Presidency is DOA. Some percentage of voters, egged on by Trump and Republican officials at all levels of government, do not believe Biden legitimately won the presidency (or won it at all), because the election was irretrievably tainted by overwhelming (if unpresented or unreliable) evidence of fraud. Large numbers of people, including those holding the levers of political power, will wield this "lost cause" narrative y to oppose everything he attempts for the next four years.* There will be no legislative action, as McConnell has no incentive to work with Biden to actually govern for the benefit of the public. Has any president appointed zero judges?** Might McConnell attempt to reinstate the filibuster for appointments, neutering the few Republican Senators (Collins, Murkowski, Romney) who might vote to confirm Biden nominees? Federal courts and ex-officials (hi, Bill Barr) will discover previously unknown limits on unilateral executive power, including the use of acting cabinet members. Universal injunctions are looking good again. And suspicions and aspersions will be cast on every future election.

[*] Any comments comparing the lonely tilting at windmills by John Lewis and a handful of other will be deleted. Save us both the time.

[**] There are no current appellate vacancies. But Marin Levy has shown that approximately 60 active Democratic-appointed circuit judges are eligible for senior status. A critical mass of this group taking senior status could reshift the court balance. But any vacancies will remain unfilled until a Democratic Senate or a Republican President. Which do we think is more likely to happen first?

Continue reading "We have not pulled back from the edge"

Posted by Howard Wasserman on November 28, 2020 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, November 27, 2020

Making students thirsty for Civ Pro

The Third Circuit unanimously rejected the Trump Campaign's appeal seeking leave to amend and to enjoin Pennsylvania certification pending appeal. Other commenters have described this vivisection of an opinion. I will add a few random thoughts.

• Trump attorney Jenna Ellis says the quiet parts out loud by complaining that the "activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud," before cheering that it is "on to SCOTUS." Never mind that the complaint pointedly does not allege fraud, which is part of the problem. The "activist judicial machinery" is three Republican appointees, including a Trump appointee as the opinion author. Under what possible definition is this decision--declining to undo the results of the majoritarian process--activist? Unless, as we all suspect, activist is a decision that rules against us.

• I was glad to see the court reject the argument that due process or other federal law requires partisan poll watchers, let alone that poll watchers be given particular access or vantage. This has been creeping into the political arguments, including during Trump's press conference at the Irresolute Desk when he extolled poll watchers as "sacred in our country."* They are not, never have been, and need not be, as a matter of federal constitutional law.

[*] He surrounded this with an unusual use of his "a lot of people don't know this" verbal tic. Usually that tic accompanies something true that everyone (except Trump, presumably) has always known, such as that Abraham Lincoln was a Republican. Here, he is using it with a statement that no one knows because it is not true.

• The opinion throws Twiqbal and FRCP 15(a) into the public eye, which should make my students long for Civ Pro next semester. The case offers a somewhat different example of undue delay. The paradigm case is "we're 15 months into litigation, discovery is closed, we are three months from trial, why did you wait so long." Here, the delay is undue because of the plaintiff's litigation posture--a motion on your original pleading is fully briefed and amending now requires us to start over, contra your particular request to the court to rule quickly on time-sensitive injunctive relief.

• I agree with those who have said that Judge Bibas is a wonderful writer--crisp and able to turn a phrase, without being showy or obnoxious. A good example of legal writing.

Posted by Howard Wasserman on November 27, 2020 at 04:57 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Reshuffling the Court? (Updated)

Josh Blackman offers an interesting proposal/prediction/speculation: Chief Justice Roberts should retire, allowing soon-to-be-President Biden to elevate Justice Kagan to chief and to fill a seat on the Court. Josh originated this proposal in September as the new way to save nine, when polls suggested a Biden presidency and Democratic Senate that would expand the Court. While Court-expansion is off the table, Josh renews the speculation in light of the Court's new shape and the Chief's role, as revealed in this week's decision enjoining New York gathering regulations, in which he dissented for himself. With the appointment of Justice Barrett, Roberts no longer is the median Justice and may be in the minority more often. At the same time, Justices Breyer, Sotomayor, and Kagan have less incentive to join his opinions, because they cannot produce a majority. The result is a Chief Justice consistently voting alone.

In December 2016, I wrote that Roberts won and Kagan lost the Merrick Garland debacle. Roberts avoided being a Chief Justice consistently in the minority thereby retaining the power to assign and cultivate majorities, while Kagan lost the opportunity to be the Brennan-esque intellectual heart of a liberal majority. Josh argues that this moment passed with Trump's appointment of three solid conserbatives. This proposal would somewhat reverse what I described--Roberts leaves before his power wanes, while Kagan gets a promotion. Of course, Kagan would find herself where Roberts would have been had Garland been confirmed--a Chief Justice regularly in the minority (unless she proves even better than advertised at bringing the Court together in the middle). And the real winner of the exchange would be Justice Thomas, who regularly becomes senior Associate Justice in the majority with the power to assign opinions.

In fairness, I believe it is safe to say that Josh is no fan of the Chief and would shed no tears if he left the Court while leaving a secure, and young, conservative majority.

Update: One point I forgot: If this were to happen, it would give Biden three appointments in one term, as I expect Breyer to retire by spring 2022.

Posted by Howard Wasserman on November 27, 2020 at 04:00 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

JOTWELL: Vladeck on the new Supreme Court Practice

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing the new 11th edition of Supreme Court Practice.

Posted by Howard Wasserman on November 27, 2020 at 02:56 PM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (0)

Thursday, November 26, 2020

Baseline Hell in Brooklyn: The Futility of Neutrality Talk in Roman Catholic Diocese v. Cuomo

With weary predictability, each side, secular and religious, is playing its accustomed role in the Roman Catholic Diocese of Brooklyn v. Cuomo. Is a religious service more like a visit to a liquor store? Or more like attending a movie house? If the former, then Cuomo’s order strictly limiting numbers of attendees “single[s] out houses of worship for especially harsh treatment,” as the per curiam opinion declares. But maybe religious services are more like a night at the movies, because (as Breyer notes in dissent) “the risk of transmission is higher when people are in close contact with one another for prolonged periods of time.” On this view, a few minutes spent grabbing and buying Old Forester is just not the same as an hour spent singing hymns in close proximity to other singers.

Welcome to baseline hell, that infernal prison for all those who think there is an easy way to define “neutral” treatment in a polarized age. In baseline hell, no one can agree on the proper baseline by which to measure “neutrality.” This disagreement about baselines insures that "neutrality talk" is a waste of breath, because there is no Olympian perspective of some "reasonable observer" by which to assess whether or not a law is covertly discriminatory or scrupulously impartial.

The futility of “neutrality talk” in baseline hell is well-illustrated by Justice Kavanaugh’s concurrence in Roman Catholic Diocese. Justice Kavanaugh suggests a “most favored institution” rule of automatic suspicion towards even apparently neutral regulations. “[O]nce a State creates a favored class of businesses, as New York has done in this case,” Kavanaugh states, “the State must justify why houses of worship are excluded from that favored class.” This rule of "neutrality" is plainly a special exemption for churches, because there will always be some non-church institution that will enjoy some “special” treatment not generally available to others. Hospitals, for instance, will always be deemed “essential” in a pandemic. Must the state then explain carefully why churches are not like hospitals when the latter are allowed to perform surgeries but the former are banned from performing baptisms? To religiously minded people, however, Kavanaugh’s rule looks like a sensible safeguard against the hidden anti-religious prejudices allegedly coloring the Secular Left. If the "elaborate system of exemptions and waivers" in Trump's a travel ban could give rise to suspicions of anti-Muslim bias, as Breyer argued in his dissenting opinion in Trump v. Hawaii, then why can't the equally elaborate and perplexing system of restrictions in Cuomo's order raise similar suspicions? After all, Cuomo's order contains completely absurd elements such as the ten-person limit on church attendance regardless of the size of the meeting place where the religious service is conducted. Why doesn't such absurdity suggest deliberate indifference to religious needs?

Here are two suggestions for etiquette in baseline hell: (1) Stop with the question-begging “neutrality talk,” and instead (2) try to see things from your opponents' point of view rather than the viewpoint of some imaginary “"reasonable observer." So viewed, Cuomo’s executive order looks like really sloppy work. Was it biased against religion? Who knows -- and why should we care? Regardless of how we answer that unanswerable baseline question, the order's sloppiness was likely to inspire distrust from religious people. That distrust, far more than anything done by SCOTUS, undermines effective pandemic response.

Posted by Rick Hills on November 26, 2020 at 09:41 PM | Permalink | Comments (4)

Tuesday, November 24, 2020

Dumping Rule 11

I have been thinking about dropping Rule 11 from Civ Pro. I have had trouble getting to Erie the past few years, a problem made worse  being remote (everything takes just a bit longer, which adds up over 13 weeks) and the likely addition of a new personal-jurisdiction case in Ford. I enjoy teaching it and it is a good source for essay questions. But I think Erie is more important.

The clown show that is the Trump Campaign litigation in the Middle District of Pennsylvania (and now the Third Circuit) confirms the choice. No one will be sanctioned for pursuing litigation violating 11(b)(1), (2), and (3). Even the great find precedent the Campaign has touted (they brought the plaintiff to last week's hearing) does not stand for the proposition they say it does. And beyond this single extraordinary case, the reality is that sanctions are imposed on the most-egregious behavior after four or five freebies. Against all of that, class time is better spent on other things.

Posted by Howard Wasserman on November 24, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (11)

Monday, November 23, 2020

Paying for vaccination and the First Amendment

I am intrigued by this idea making the rounds: Pay people (amounts thrown around are $ 1000-$1400) for getting the COVID vaccine. The plan achieves three things: 1) Ensures broader vaccination towards herd immunity (estimates say a 70% rate is necessary); 2) economic stimulus; and 3) support those suffering financial loss in the economic downturn.

A question: Would someone with a religious objection to vaccination have a First Amendment or RFRA claim? Is not receiving a widely available benefit, unavailable to you because of your religious beliefs, a violation of religious exercise? And, because that is all the rage these days, what would be the remedy if this is a violation? How would the Court level up--requiring the government give the religiously unvaccinated $ 1000? Or would the Court level down and prohibit the government from doing this?

Posted by Howard Wasserman on November 23, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Can you sue a psychiatrist for malpractice?

A divided Eleventh Circuit declared invalid a Florida municipal ordinance prohibiting conversion therapy. The court treated the ordinance as content- (indeed, viewpoint-) based and failing strict scrutiny. On one hand, this is not surprising, as the court had previously declared invalid a Florida statute prohibiting pediatricians from asking patients (and parents) whether they kept guns in the home. If anything, that law could have found stronger footing as an incidental regulation of a medical check-up.

The Eleventh Circuit rejected that possibility with the conversion-therapy ban. This is not speech incidental to medical conduct. Rather, "[w]hat the governments call a 'medical procedure' consists—entirely—of words. As the district court itself recognized, plaintiffs’ therapy 'is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.'”

If so, can a therapist be successfully sued for malpractice for the harmful effects of talk therapy (put aside medical issues, such as prescriptions)? Imagine a therapist who bullied and shouted at her patients, worsening their emotional and mental problems. If the "treatment" is entirely speech, then a malpractice claim would impose liability for speech. The majority insists the decision does not go so far and "does not stand in the way of '[l]ongstanding torts for professional malpractice' or other state-law penalties for bad acts that produce actual harm." The court distinguished this broad prophylactic rule prohibiting speech from tort rules imposing accountability for actual harm to children. But I do not understand why that matters for First Amendment purposes--the law would be regulating "entirely speech" in either situation.

Posted by Howard Wasserman on November 23, 2020 at 09:31 AM | Permalink | Comments (5)

Sunday, November 22, 2020

Trump campaign loses big in Pennsylvania (Updated)

Update: Just wanted to highlight a few things discussed below, as the Pennsylvania litigation continues apace. First, Trump's lawyers are as bad at appellate procedure as they are at civil procedure--the motion for expedited review insists that they are only challenging the denial of leave to amend to file a Second Amended Complaint, not the dismissal of the First Amended Complaint. And they have not asked for an injunction pending appeal, which means Pennsylvania could certify the results today and moot the case. Second, Trump's lawyers are being hoisted on their Twiqbal petards. They continue to insist they are entitled to discovery and the chance to present evidence at trial, ignoring the obligation to plead a plausible claim, including standing. Third, liberal delight in flaunting Twiqbal is disturbing.

Opinion here. This was always a weak case, so the result is unsurprising. Giuliani's involvement brought a brighter spotlight to it than its merits deserved, making it more farce than lawsuit. But the decision is as much of a smackdown as people are saying, with the court dropping occasional phrases suggesting annoyance. Some quick thoughts.

1) This case further convinces me that standing as a merits-independent threshold inquiry makes no sense. For the two voter plaintiffs, the court focuses on the fact that they sued the wrong people, people who did not violate their rights and thus injure them. That should be part of the merits--your county violated your rights by treating you poorly, but other counties do not violate your rights by treating other people favorably (as permitted by law). Similarly, redressability was framed in terms of remedy--the plaintiffs lacked standing because they requested the wrong remedy--which should be a post-merits determination. The goal seems to be to make what are effectively merits determinations while denying the case is about constitutional merits.

2) The Campaign asserted associational standing,which the court rejected. But it did not assert third-party standing on behalf of voters. Was this another pleading error? Political campaigns have always struck me as a classic example of third-party standing--their interests align with the voters and individual voters lack the incentive to bring broad-based litigation.

3) Given the GOP campaign against universal injunctions the past four years (with which I agree, of course), it is ironic that they requested the ultimate universal injunction. The plaintiffs asked the court to stop Pennsylvania from certifying the election--functionally nullifying every vote in the state--to remedy the violation suffered by two voters who were denied equal protection by the actions of a non-party. But it also would have been insufficiently universal, in that they only wanted to stop certification of the presidential election but no other election, although the voters were denied equal protection to cure their votes in those elections, as well (unless they could allege that they only voted in the presidential election).

4) The case illustrates the disconnect between litigation, which is often small-bore and centered on discrete violations of discrete people's discrete rights, and the vast international and technological conspiracy that Trump's lawyers sought to prove. Put aside that the evidence does not exist. There was no room for such evidence on the claims alleged. But does this create a catch-22? The Campaign will complain that it never had an opportunity to present its evidence in court (as people have been demanding), because the court never accepted its unsubstantiated allegations (which is all a complaint is supposed to be) and allowed it to find and present that evidence. At the same time, this is how much litigation works since Twiqbal--a state of affairs about which Civ Pro scholars have been complaining for almost 15 years.

5) I liked Judge Brann putting citations in footnotes, a practice I am surprised has not caught on more (some judges on the 5th and 6th Circuits do this). On that note, check out footnote 80, sure to go down in history as the new footnote 4.

Posted by Howard Wasserman on November 22, 2020 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)