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Thursday, December 31, 2020

Maybe this year will be better than the last

Wishing our bloggers, commenters, and readers a safe New Year's Eve and a healthy and (hopefully) happier 2021.

Let us hope this apparent Russian joke does not come true: On average, we live pretty well: worse than last year, but definitely better than next year. (H/T: Julia Ioffe and David Frum).

My former teacher Steve Lubet at Faculty Lounge does a weekly post featuring different versions of a particular song. In honor of my hope for 2021, here is my version of a post.








Posted by Howard Wasserman on December 31, 2020 at 06:21 PM in Howard Wasserman | Permalink | Comments (0)

Sunday, December 27, 2020

Robert Jackson on Article Five

After reading Robert Jackson's brief in Currin v. Wallace, I decided to read through some of his other briefs as Solicitor General. He was only in that position for two years, and the United States did not, of course, file a brief in every case. As far as I can tell, the only other case where a Jackson brief would be of interest to modern lawyers is Coleman v. Miller, which concerns the Article Five ratification process.

I've written an article about the proposed Equal Rights Amendment to the Constitution. One issue with the ERA is the relationship (if any) between a time limit for ratification and the possibility that a state can rescind a ratification of a constitutional amendment. In my article, I argued that states should have that power (or that only a two-thirds vote of each House of Congress can set aside a rescission). This is especially true, I thought, if Congress can extend or waive a ratification time limit that is not in the text of the proposed amendment itself.

Here's what Jackson's amicus brief says about this in Coleman after he cites Dillon v. Gloss:

That case sustained the power of Congress to fix a time limit of seven years for the adoption of the Eighteenth Amendment. It was unnecessary in that case to consider whether a proposed amendment would expire with the passage of time in the absence of such a provision, and still less to consider whether the courts could be required to decide that a proposed amendment had in fact expired. It is true that the opinion in the ease expressed the view that an amendment cannot pend indefinitely, but nothing was said concerning the authority which would be empowered to declare that the end had come. The answer to the latter question may well turn on the answer to another: whether States which have once ratified may thereafter revoke or rescind their ratification. If they can, the danger that a few States may supplement prior ratifications of an outdated proposed amendment is largely obviated; the States that have ratified can protect themselves by rescinding. The power of the States so to do has not been judicially determined. Unless and until the power is held not to exist, much of the force is taken from the position that the courts may be required to decide whether a proposed amendment has lapsed. It is perhaps enough to say that distinguished authority can be found for the view that, until an amendment has been adopted by the ratifications of three-fourths of the States, the States do have power to rescind their ratifications. [footnote omitted]

This passage is interesting for two reasons. First, Jackson took the view that states could rescind their Article Five ratifications, which is a hotly contested question. (If states can do so, then the ERA has not reached the three-quarters necessary for ratification). Second, he says that if states can rescind, then an indefinite time limit for ratification is not a problem. States can rescind their ratifications from long ago if they feel that was the wrong position to take.

I also just love the following passage in the brief for its prose style:

The second major question presented is whether the Child Labor Amendment was no longer susceptible of ratification because of the interval of time, 12 years and 7 months in the case of Kentucky and 12 years and 8 months in the case of Kansas, elapsing between submission to the States and these ratifications. The argument is, in effect, that a conclusive presumption of death arises upon the passage of such a period, a presumption akin to that arising from seven years' unexplained absence without being heard from. But the Child Labor Amendment has been heard from incessantly. If mortality is an attribute of proposed amendments, it is clear with respect to the Child Labor Amendment that death could not have been caused by atrophy, but only by activity; and that, it is submitted, is not a basis for establishing the legal death of an amendment.

Posted by Gerard Magliocca on December 27, 2020 at 10:21 AM | Permalink | Comments (5)

Thursday, December 24, 2020

Arguments Against the Non-Delegation Doctrine

This is my final post in the series about Robert Jackson's brief in Currin v. Wallace. Jackson argued there that (1) some congressional delegations to the President might be unconstitutional;(2) Congress could not alienate its power; and (3) congressional delegations to executive agencies or independent boards are always constitutional.

Why did Jackson think that delegations to agencies were fine? He made several arguments. One was that the text did not expressly limit delegations except in the Tenth Amendment. (Jackson did suggest, though, that appropriations could not be delegated due to the requirement that no money could be drawn from the Treasury without an appropriation by law.) He also invoked a structural argument:

The executive power which, it has always been assumed, can be delegated, and would be utterly impotent if it could not be delegated, is vested in the President by the same words that are used to vest the legislative power in the Congress. There is no reason to imply a limitation in the language of one section that is not to be implied in the language of the other.

Finally, Jackson asserted that the Framers were well-aware of broad delegations of power by Parliament but chose not to limit delegations of power by Congress:

This silence of the Constitution on the subject of delegation has added significance when we consider that the constitutional convention was familiar with the extravagant delegation of governmental power which was in vogue in that day. Not only were the powers of government parceled out to public bodies, but all of the powers of government were actually alienated to trading corporations. There is no better example than the Hudson's Bay Company.

The Hudson's Bay Company was chartered by Charles II in 1670. Prince Rupert and 17 other noblemen and gentlemen were incorporated and granted “the whole and entire trade and traffic” to and from the Hudson's Bay country. The complete lordship and entire legislative, judicial, and executive power was given to the Company. This governmental power was held and exercised until November 19, 1869, when all its rights of government were returned to the public authorities by a deed of surrender in which the consideration was not merely nominal.

* * * and that the said Governor and Company shall have liberty, full power and authority to appoint and establish Governors and all other officers to govern them, and that the Governor and his Council of the several and respective places where the said Company shall have plantations, forts, factories, colonies or places of trade within any of the countries, lands, or territories hereby granted, may have power to judge all persons belonging to the said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of the kingdom, and to execute justice accordingly.”

 Virginia itself was settled under charters granted to “the London Company” and to the     “Plymouth Company” in 1606. The London Company in 1607 sent its first colonists to the James River.

Jackson also cited many colonial and state laws enacted in the 18th century that broadly delegated, before wrapping up by citing M'Culloch v. Maryland.

Anyway, I hope to write all of this up and get a draft paper out by the summer. 

Posted by Gerard Magliocca on December 24, 2020 at 02:52 PM | Permalink | Comments (3)

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Posted by Howard Wasserman on December 24, 2020 at 01:04 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, December 22, 2020

Remembering James Watt

Can we agree that the President's closest advisers at the moment--"a felon, adherents of the QAnon conspiracy theory, a White House trade adviser and a Russian agent’s former lover" is the greatest collection since James Watt in 1983?

Posted by Howard Wasserman on December 22, 2020 at 11:09 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Divesting Power

Robert Jackson's brief in Currin v. Wallace argued that there was no limit on Congress's power to delegate power to executive agencies. But he also said that Congress could not alienate its power:

It would appear elementary that no department can divest itself of the power thus vested in it. In other words, there can be no alienation of power. Delegation, however, stops far short of divesting or alienation. To turn over to a body created by and responsible to the Congress a defined and limited measure of power, or a power over a given subject or object, at all times subject to recall and supervision by Congress, is in no sense a divesting or alienation of its power.

Later on Jackson added that the "only limitation which seems reasonable to imply is that any delegation must stop short of a divestiture of power or an alienation of power. Such would be contrary to the provisions and plan of the instrument."

Here's the head-scratcher: How exactly can Congress formally divest itself of power? Refusing to exercise a power for long enough could be understood as de facto alienation, but that's rather hard to assess. Likewise, a congressional delegation with no supervision might be alienation even if Congress retains the right to supervise, much as trademark law says that "naked licenses" are invalid. But how could that concept lead to a judicially manageable standard? "Naked licensing" is hardly ever enforced for trademarks nowadays.

A formal alienation of power, I think, could happen only if Congress gives power over an irrevocable decision. Suppose Congress gave the Secretary of the Interior the power to admit new states. She then decides to admit Puerto Rico, Guam, and the Virgin Islands. Statehood admissions cannot be repealed. Even though Congress could revoke the grant of statehood recognition for future states, they could not do anything about a prior decision to admit a state. Even then, though, you could say that the power is not alienated because Congress exercises supervision over the Secretary of the Interior.

In short, the alienation limitation is probably just theoretical or would end up involving a separate constitutional claim. Tomorrow I'll talk about why Jackson thought there was no limit on Congress's ability to delegate power to executive agencies. Working title for this paper, BTW, is "Robert Jackson's Non-Delegation Doctrine."


Posted by Gerard Magliocca on December 22, 2020 at 11:01 AM | Permalink | Comments (3)

Monday, December 21, 2020

Decoding Youngstown

In my prior post, I explained that Robert Jackson's brief in Currin v. Wallace argued that there were constitutional limits on Congress's power to delegate power to the President but not to agencies. This point is highly relevant, I think, to something he said in his Youngstown opinion.

Describing the first of his three categories for evaluating executive power, Justice Jackson said: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." [footnote omitted for now]

What does "can delegate" mean in that sentence? I've always thought that meant that Congress cannot authorize the President to do something that the Constitution independently forbids (say, violate the First Amendment.) But Jackson says a few sentences later that if the President's action "is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power." Why does he say usually? Why not always?

The answer, I think, is that Justice Jackson believed that Congress could not delegate some of its valid powers to the President. The brief in Currin supports that thought, but also consider the footnote that accompanies his sentence in Youngstown on the power that Congress "can delegate." Footnote 2 in his Youngstown opinion discusses Curtiss-Wright, which was a nondelegation case. Jackson said Curtiss-Wright "recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs." What "strict limitation upon congressional delegations of power to the President over internal affairs?" Presumably the ones identified in Panama Refining, Schechter Poultry, and Jackson's brief in Currin.

Thus, Jackson's analysis in Youngstown (which everybody seems to admire) is partly about non-delegation, And his opinion and directs our attention to an unresolved problem--what are the limits of congressional delegation to the President that adds to his powers? The Supreme Court's cases instead focus on when Congress may subtract from his powers (for instance, Morrison v. Olson). But is that what we should be focused on?

More on Currin tomorrow. Grading is the nemesis of blogging, but hopefully I can do both.



Posted by Gerard Magliocca on December 21, 2020 at 10:50 AM | Permalink | Comments (1)

Sunday, December 20, 2020

The Non-Delegation Doctrine Reconsidered

Let me start my posts on Robert Jackson's brief in Currin v. Wallace. I'm not sure how to post a PDF of the brief, but I'll see what I can do. In the meantime, let me set up the background and then address one of the Solicitor General's main points.

Jackson wrote the brief to defend the constitutionality of the Tobacco Inspection Act, which was a standard New Deal law that regulated the tobacco market. One of the arguments against the Act was that Congress unconstitutionally delegated authority to the Secretary of Agriculture. The United States rejected that assertion and the Supreme Court agreed that the Act did not unreasonably delegate. But the United States also urged the Court (unsuccessfully) to revisit the entire non-delegation doctrine. The opening prose of that section is in Jackson's unique style, including the unusual word choice of "uncanalized"

The contentions in this case illustrate the rather fantastic limitations upon the Congress which counsel read into the decisions of this Court on the subject of delegation of power. The confusion and uncertainty surrounding this subject not only lead earnest members of the profession into repeated attacks upon legislation as unlawfully delegating power, but also present to legislators a dilemma in framing legislation.

They are confronted on the one hand with the nebulous requirements of due process. If they pronounce a rigid set of standards, unforeseen cases to which the standards may apply present the danger of unconstitutionality because of caprice or arbitrary application. If, on the other hand, they seek to avoid the danger of capricious and arbitrary application through provision for flexibility in application, the statute is then attacked for undue delegation, an equally nebulous and undefined concept. This dilemma of avoiding the infirmity of unlawful delegation by running into the infirmity of caprice, or vice versa, faces legislators in most of their important tasks.

There is urgent need for some clarification of the doctrine of non-delegability. If it is to be applied to legislation, it is only just to legislators that standards be clearly outlined by which the adequacy of legislative standards is to be tested. The invocation of a vagrant and uncanalized judicial doctrine to prevent vagrant and uncanalized legislation leaves both legislators and litigants confused.

After gesturing in the direction of saying that what constitutes unreasonable delegation is "a subject of questionable justiciability," Jackson then offered a rationale for the Court's non-delegation decisions:

[T]he only cases in which legislation was held unconstitutional for excessive delegation were the Schechter and Ryan cases, both of which dealt with a delegation to the President himself. These cases, therefore, involve the question of separation of powers, for the office of President was not created by the Congress and the President was not responsible to the Congress. The executive was there endowed with nonexecutive functions. The legislative power was there delegated to the President, whose powers are in many respects independent of the Congress. It is generally held that the Judiciary will not assume nonjudicial functions, and that Congress cannot assume nonlegislative functions. It was, therefore, with a measure of consistency that the Executive was excluded from legislative functions beyond those considered necessary in filling in the details of legislation and in determining its applicability. 

It is apparent, however, from that circumstance in those cases, that there is no precedent in American constitutional law for striking down legislation which delegates legislative power to an agency created by Congress and controlled by Congress, and where the agency exercising the delegated powers is completely subject to the control of Congress and may at any time be abolished. Whether delegated to so-called independent establishments or boards, or whether delegated to members of the Executive Department whose offices owe their existence and powers to the Congress, these delegations have always been sustained.

Let's ponder this analysis for a moment. First, I think the argument rests on an understanding of executive agencies that not everyone shares. Today many people would say that the President, not Congress, controls the executive agencies. Thus, the distinction between a direct delegation to the President and one to the Secretary of Agriculture is not significant. But maybe that is wrong. Congress does have more influence over Cabinet Departments than over the President himself. Second, Jackson's analysis makes more sense in the presence of the legislative veto; a practice invalidated by the Court in Chadha but used often in the 1930s.

Still, Jackson's rule has some advantages. First, Congress would be on notice that delegations to the President could be invalidated but delegations to executive agencies or independent bodies cannot be invalidated. This would not, of course, satisfy some critics of how the Congress delegates its authority to agencies, but as a prospective guide for Congress Jackson's standard would be useful. Second, there are many delegations of authority to the President himself that would be on shaky ground under this test. To take one example, the National Emergencies Act is a delegation of exceptionally broad power to the President himself, not to an agency. I think a substantial attack could be mounted against this statute if Jackson's non-delegation doctrine were the law. There are probably many other examples, though I'm not an administrative law expert.

Next time I'll talk about another thoughtful aspect of Jackson's brief on the difference between the delegation and the alienation of power that may connect up with his concurrence in Youngstown.   



Posted by Gerard Magliocca on December 20, 2020 at 08:26 PM | Permalink | Comments (2)

Saturday, December 19, 2020

Robert Jackson on the Non-Delegation Doctrine

I've come upon an interesting artifact that may merit its own paper. In Robert Jackson's book on The Struggle for Judicial Supremacy, he criticized the Supreme Court's non-delegation cases (Panama Refining and Schechter Poultry). He then said that "the Solicitor General" invited the Court to clarify the non-delegation doctrine, citing a brief submitted in Currin v. Wallace. This Solicitor General was, of course, Robert Jackson. The Court did not take up Jackson's invitation, but the brief contains an extremely interesting analysis of the issues. As far as I can tell, though, nobody has given this brief much attention. Let me give you a few highlights:

  1. Jackson argues that congressional delegations to the President may be invalid on separation-of-powers grounds. Congressional delegations to executive agencies or independent boards, though, are permissible because Congress exercises some direct control over them.
  2. He says that Congress can delegate but may not alienate its power.
  3. He cites many examples of broad delegations at the Founding, with a special emphasis on proprietary colonial charters.
  4. He makes several telling textual points against the non-delegation doctrine.

I will take all of this up in greater detail in a separate post.

Posted by Gerard Magliocca on December 19, 2020 at 07:16 PM | Permalink | Comments (3)

Plenty of perjury and authoritarianism

Two unrelated items, united by the news of the day.

Based on the quality of lawyering we have seen the past 46 days, does anyone believe Nick Sandmann recovered anything more than nuisance value in settling his $ 250 million lawsuit against CNN?

In spring 2016, I had a conversation with two conservative academics about the ongoing Republican primary. One said GOP folks were worried about Trump winning. I responded, "why, because he's a crazy Fascist?", to which he responded with a smirk that they were worried about down-ballot drag. I said "which really means they know he's a crazy Fascist." The other asked, indignantly, why I thought Trump was a fascist and why I believed wanting to keep our country safe made him a fascist. I hope we agree that talking with people in the Oval Office about calling in the military to seize voting machines and order a redo of an election makes someone a fascist.* As someone wrote earlier today, Trump is a dictator; that the adjective "failed" goes in front of that does not change the fact that he is a dictator.

    [*] Or let's say a dictator or an authoritarian or a person not committed to democracy. I admittedly used fascism as a synonym for those. I think the point stands.

Posted by Howard Wasserman on December 19, 2020 at 06:21 PM in Howard Wasserman, Law and Politics | Permalink | Comments (10)

Friday, December 18, 2020

In Jotwell: "The Two-Body Problem"

At Jotwell, I have a jot this week on Daphne Renan's recent article, The President's Two Bodies. Drawing on Kantorowicz's classic work on the king's two bodies, the article addresses the tension between two visions of the presidency, one focused on the temporary and personal “body mortal” and the other on the "enduring 'body politic': king and kingship, one person with two distinct but indivisible aspects." I think very highly of the article, both substantively and in terms of its exploratory and fairly open-ended approach, and explain why. Here's the opening:

For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.

Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies.

As usual, my discussion of the paper is interspersed with hobby-horse complaints about legal scholarship and some thoughts on office and the oath. One question I don't ask here and ought to take up in a post of its own is: Which legal theories or ideas that gained a lot of interest during the Trump presidency, generally accompanied by suggestions that they were not limited to that presidency alone, will be dropped now that he will be leaving office? I think there is a core of scholars who will keep on writing about oaths, constitutional norms, the Take Care Clause, and similar questions, and I'm glad. But I imagine there will be a certain, unspoken drop-off of interest on the part of some who wrote in this vein, and I suspect fancy-law-review editors will be less interested as well. I would be happy to be wrong on one or both fronts.  

Posted by Paul Horwitz on December 18, 2020 at 02:52 PM in Paul Horwitz | Permalink | Comments (0)

Godwin's Law of Standing

An intentionally provocative framing of Friday's standing decision: A mayor (to keep the numbers small) issues a memorandum ordering department heads to identify, "to the extent practicable or feasible," all Jewish municipal employees so they may be excluded from receiving annual raises. Jewish employees must be identified by December 31, the date on which annual raises are triggered.

Could it really be that a Jewish employee does not have standing to challenge that memorandum prior to being identified and denied a raise? That each employee must wait until he is denied the raise, then sue?

And if not, how is this different than the census case? Is it numbers--there are more undocumented immigrants in the United States than Jews working in my hypothetical municipality, so it is more likely that all Jews can be identified? Is it the certainty of harm--no raise as opposed to maybe a loss of money or seats?

I should add I know there is no logic or consistency in standing analysis. But it is worth thinking about.

Posted by Howard Wasserman on December 18, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Malevolence + Incompetence = No Standing

That is the gist of the Per curiam decision dismissing the challenge to exclusion of undocumented persons from the census for lack standing/ripeness (at this point they are the same and we should stop treating them as distinct). Government agencies are struggling to identify undocumented persons and exclude them from the count--in other words, struggling to implement the presidential memorandum--by the December 31 deadline. This creates "contingencies" and "speculation" as to the extent of the harm (how many millions of people will be identified and affected) that "impedes judicial review."

Breyer dissented for Sotomayor and Kagan. Money quotation:

To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its man-date to exclude aliens without lawful status and reduce the number of Representatives to which certain States are en-titled, it will be for reasons not in the record. Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not de-cline to resolve the case simply because the Government speculates that it might not fully succeed.

Otherwise, we have a new principle: Plaintiffs lack standing if government is too incompetent to get its shit together and commit the violation it intends, as a matter of announced formal policy, to commit.

Oh, and I forgot to add: I presume folks in the Trump Administration now believe standing requirements are great and necessary constitutional bulwarks and not technicalities and dodges wielded by fearful Justices.

Posted by Howard Wasserman on December 18, 2020 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, December 17, 2020

Trump v. New York--The Four Corners Offense

The Supreme Court did nothing with Trump v. New York (the census/apportionment case) before leaving for a month-long recess. This means that the case may never be decided, though that conclusion is not without complications.

Prior to January 20th, the President is supposed to receive the population tallies from the census and issue a report to Congress outlining the next reapportionment. One problem is that the pandemic is delaying the census work. Another issue is that the President's request to the Secretary of Commerce for data on illegal residents is creating a further delay. Thus, it is unclear whether the census data will be ready by January 20th. 

Even if the census data is ready before then, though, can President Trump issue the report if Trump v. New York is still sub judice? If he does, does that mean that the report is not final and can be changed by President Biden? The Justices might be stalling in the hope that they do not need to decide anything and can declare the dispute moot. Does the stalling, though, itself end up creating the mootness?

UPDATE: Today the Supreme Court dismissed the case for want of jurisdiction. We'll see if this comes back next year.

Posted by Gerard Magliocca on December 17, 2020 at 11:08 AM | Permalink | Comments (1)

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, December 16, 2020

Fake electors

If the Trump presidency began with alternative facts, it ends with alternative electors: Uncertified Trump would-be electors who got together, voted for Trump, and sent their results to the archive to be opened in Congress on January 6. None of these actions have any basis in law. Michael Dorf explains that the lack of legal basis might not matter, while Neil Buchanan explains how some stupid mischief could play out without success on January 6, which may explain why Mitch McConnell has discovered his limit on cravenness.

But let me add one more wrinkle combining the posts. Neil argues that one reading of the Electoral Count Act is that Congress cannot reject a slat of electors unless there is a competing slate purporting to be properly appointed. Neil argues that simply rejecting the Biden electors would not create a path to Trump becoming President, because the rejection would not be of their votes but of their appointment as electors. So Congress could not subtract 73 electors (MI/PA/AZ/GA/WI) from Biden's 306, drop him to 233, and call for a contingency election; the 73 would be dropped from 538, giving Biden 233/465 and a one-vote majority. In other words, it is not enough to carve 73 votes from Biden; they need to shift votes to Trump.

This is where the "alternate" Trump electors (whom Dorf analogizes to the French citizens taking the "Tennis Court Oath" in 1789) come in. Although lacking a fig leaf of legal authority or state support (despite what Sidney Powell apparently represented to SCOTUS), they actually exercise as much authority as force and other actors are willing to accord them. Now there is an alternative slate of electors that Republicans in Congress could recognize, despite the lack of meaningful authority; instead of 306-232 Biden, it is 305-233 Trump. Note, again, no House contingency election; Trump wins outright.

Finally, Jermey Mayer offers a final nightmare in which congressional Republicans drag things out by contesting and debating every vote, then declare that there is no electoral college winner, triggering contingency elections. Steve Vladeck explains why this cannot work: There cannot be a contingency election unless Congress agrees that no one received a majority, which cannot occur unless Congress rejects--and replaces--some Biden votes. Delaying certifying Biden's win also delays certifying the absence of a majority winner. And, Steve goes on, if they delay until noon on January 20, Nancy Pelosi becomes acting president.

Mayer's hypothesis shows a problem with using shorthand in lieu of text and procedure, something I try to explain to my students. Mayer says "The Constitution specifies that if there is no Electoral College winner, the Senate chooses the vice president and the House picks the president." But that is not an accurate description of the text or process.  The 12th Amendment says, in relevant part, "the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority," there will be contingency elections in the Senate and House. This requires more than Congress taking a long time to challenge votes. It requires Congress to do something--count and announce the results of that count. And a count, absent rejected votes or switched slates, will reveal a 306-232 Biden win. The text does not allow Congress to do nothing or to not count; inaction just runs the clock until no one shall have qualified as President or Vice President.

Note: None of this will happen, because Democrats control the House; this is all a parlor game. At the same time, if Democrats did not control the House, none of the legal niceties at work here would matter, because Republicans have shown themselves willing to do whatever they want. Which is the common them of both Neil's and Mike's posts.

Posted by Howard Wasserman on December 16, 2020 at 03:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Universality and the facial/as-applied distinction

An aspect of universality about which I have not written is its intertwinement with the distinction between facial and as-applied challenges to the laws.

Normatively, it should not matter. Dick Fallon has it right in arguing that facial/as-applied relates to the scope of the precedent rather than the scope of the judgment. A facial challenge produces precedent pre-determining the validity of the law as to non-parties and future cases, which future courts will apply as firmer precedent in resolving the second lawsuit. But any injunction in that first lawsuit remains limited to prohibiting enforcement only against the plaintiff. Descriptively, however, suggestions that a challenge to a law is facial bleeds into questions of who will be protected by the resulting judgment.

Case in point is Tuesday's First Circuit decision on a First Amendment challenge to Massachusett's ban on surreptitious recording, even of government officials performing public functions in public. In consolidated cases, the panel* the panel found one challenge ripe (Martin) and affirmed a declaratory judgment prohibiting enforcement as to recording of police in public spaces, while finding a second challenge (Project Veritas) not ripe as applied to recordings of all public employees and other individuals lacking expectations of privacy.

[*] The panel was David Barron, an Obama and potential Biden short-lister, who wrote the opinion; Justice Souter riding circuit; and Bruce Selya of the large vocabulary. Interesting note on seniority on the panel, which goes: Active Circuit, Retired SCOTUS, Senior Circuit

There was preliminary wrangling over whether Martin was facial or as-applied. Here is how Judge Barron resolved the back-and-forth:

This battle over labels is not fruitful. The Martin Plaintiffs' challenge takes aim at only a portion of Section 99, but it seeks to block it in circumstances beyond the Martin Plaintiffs' own recording. The challenge thus has both "as-applied" and "facial" characteristics. There is no obvious sense in which one predominates.

Fortunately, the Supreme Court has confronted similar half-fish, half-fowl First Amendment challenges and instructed that where the challengers "do[] not seek to strike [a statute] in all its applications" but the relief sought "reach[es] beyond the particular circumstances of [the] plaintiffs," they must "satisfy [the] standards for a facial challenge to the extent of that reach." John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (emphasis added); see also Showtime Ent., LLC v. Town of Mendon, 769 F.3d 61, 70 (1st Cir. 2014). We thus proceed on the understanding that the Martin Plaintiffs seek the invalidation -- facially -- of Section 99 but only insofar as it applies to bar the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces.

We emphasize, though, that the Martin Plaintiffs contend that Section 99 is unconstitutional as applied to their own recording. In that respect, they are not bringing a First Amendment overbreadth challenge. Nor are they seeking, however, to invalidate the measure only insofar as it applies to their own conduct. They are bringing a challenge to a portion of Section 99 that they contend cannot be applied to bar such recording, whether undertaken by them or by anyone else, because it is not tailored in the way that they contend the First Amendment requires.

With the Martin Plaintiffs' challenge now better in view, we are well positioned to explain why we conclude that it is ripe.

The court addressed this it affected ripeness. But note how scope-of-remedy bleeds into the analysis. Twice the court describes the plaintiffs as attempting to stop recording "beyond [their] own recording" and "whether undertaken by them or by anyone else." But  a party cannot, as a matter of the judgment and absent class certification, stop enforcement of the law as to anyone else or anyone else's conduct. Speaking in these terms creates that remedial confusion, even where, as here, only a declaratory judgment and not an injunction is sought.

Other than this remedial quibble, this is another great addition to the burgeoning body of law establishing a First Amendment right to record.

Posted by Howard Wasserman on December 16, 2020 at 10:07 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Excluding Members-Elect from Congress

As a comment to my prior post noted, Representative Bill Pascrell of New Jersey wrote Speaker Pelosi last week and suggested that the Republican members who signed an amicus brief in the Texas lawsuit challenging the presidential election result should be excluded. Pascrell quoted Section Three of the Fourteenth Amendment and asserted: 

"[M]en and women who would act to tear the United States government apart cannot serve as Members of the Congress. These lawsuits seeking to obliterate public confidence in our democratic system by invalidating the clear results of the 2020 presidential election attack the text and spirit of the Constitution."

He goes on, but you get the point. Pascrell's request is absurd. Joining a brief is not "insurrection or rebellion" against the Constitution under any standard. If it were, the number of Representatives that could have been subject to exclusion would be quite long. We want people to use peaceful and lawful means to contest election results so that they don't use violent and unlawful means.

I would also point out that many people called President Rutherford B. Hayes "His Fraudulency"  during his Administration because of the murky circumstances of the 1876 election. Were they all engaged in insurrection or rebellion against the Constitution? Hardly. They were exercising their First Amendment rights.

Posted by Gerard Magliocca on December 16, 2020 at 08:46 AM | Permalink | Comments (3)

Monday, December 14, 2020

Draft Paper on Section Three of the Fourteenth Amendment

I've posted a draft of my new paper on "Amnesty and Section Three of the Fourteenth Amendment." Comments are welcome.

Posted by Gerard Magliocca on December 14, 2020 at 01:13 PM | Permalink | Comments (3)

Sunday, December 13, 2020

Not a technicality, still a distraction (Updated)

Standing is the word of the weekend, as the lame-duck President took to Fox to decry the reliance on "little technicalities, like a thing called standing," before expressing shock and awe that "the President of the United States does not have standing."

I prohibit my students from using the word "technicality" in class or in their work. Another word for technicality, I tell them, is "the law." It is not a technicality when evidence is excluded because police executed an unlawful search, because there are laws prohibiting police from doing that and those laws are no less important than the law prohibiting some action as a crime. And it is not a technicality when a court dismisses (or refuses to hear) case because it lacks the authority to hear it (as standing is understood), because the laws limiting the court's adjudicative authority is as important as the Electors Clause.

Update: Trump later tried his hand at textualism, insisting that SCOTUS' original jurisdiction is enumerated in the Constitution. But so is standing (descriptively derived as it is from the "case or controversy" language), in the prior clause of the same section of the same article.

Trump's complaint also ignores that one court found standing before rejecting all the merits arguments. The court's standing analysis is debatable. I agree that Trump was injured and that an injunction prohibiting certification would remedy that injury (subject to whatever happens next under state law). But any standing here would have been Third Party standing--Trump asserting the rights of the Wisconsin legislature to set election rules. The court either needed to find the other elements of third-party standing (close connection between Trump and the real right-holder and some barrier to the right-holder asserting its rights) or conclude that, as in Bond v. U.S., a party with standing can assert any alleged constitutional defect in a law.

All that said, I continue to believe that standing is jurisdictionalized merits. What courts have made a jurisdictional threshold is a merits determination: "Your constitutional/statutory rights have not been violated in this case because the law does not recognize those rights, so you lose on the merits." That is what standing measures--"perhaps the Constitution or law was violated in some way, but it did not affect you so you cannot be the one to pursue the claim and obtain a judicial remedy." Would we be better off if courts spoke about it in those terms, rather than as a threshold that can be waved away by non-lawyers as a technicality?

Posted by Howard Wasserman on December 13, 2020 at 01:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Friday, December 11, 2020

JOTWELL: Carroll on Martinez on judges behaving badly

The new Courts Law essay comes from new contributor Maureen Carroll (Michigan), reviewing Veronica Root Martinez, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 223 (2020), considering how to create mechanisms for holding judges accountable for misconduct when they no longer are on that court.

Posted by Howard Wasserman on December 11, 2020 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Requiem for principles

Multiple items, unconnected except by the thread of the ongoing coup attempt:

• Carter Philips, Republican former Assistant to the SG and SCOTUS advocate and leader of an early amicus opposing the Texas lawsuit, tells the National Law Journal (subscription required) that it would be "counterproductive" to seek attorney sanctions: "The problem is you just want this to end and to move on. It doesn’t help it to end if you start filing [frivolous litigation] motions and trying to sanction the other side. . . . It turns up the volume and gives more reason for rancor." Phillips is correct that sanction activity--or post-litigation efforts before state bars--keep this going. But then how do you stop this from happening again and again? The purpose of Rule 11 is to deter repetition of this conduct or comparable conduct by others similarly situated. Without the threat of sanctions, because those sanctions are counter-productive, nothing deters Wood, Powell, Paxton, et al. from doing this again. Put another way, sanctions exist because most lawyers are internally motivated to do the right thing and sanctions can deal with the outlier. What happens when those not internally motivated are not the outliers?

Jeb Bush says: "This is crazy. it will be killed on arrival. Why are smart people advancing this notion? Let it go. The election is over." Does he really not know the answer to that question? Smart people are advancing this notion because they can get not-smart (or not-informed or not-engaged) people to believe their narrative of a stolen election. That narrative might be dead on arrival before SCOTUS. But that narrative will allow them to maintain public support when they undertake a scorched-earth campaign against voting rights (which has already begun in Georgia in advance of the Senate run-offs) and against the Biden Administration. Ted Cruz said the Senate will not confirm Biden nominees "[a]s long as there's litigation ongoing, and the election result is disputed." So unethical lawyers bring bullshit cases, without fear of sanction or consequence, and unethical legislators use those cases as pretext to prevent Biden from governing, without fear of sanction or consequence.

• Speaking of: The President's new argument is that the Biden Administration will be a "scandal-plagued mess for years to come." Short term, he uses this as a basis for SCOTUS action (Principle: If SCOTUS knows the incoming administration will be bad, it can overturn the election to "Save America"?). Long-term, this is a repeat of Trump's successful 2016 move. It was obvious four years ago that Trump was a corrupt liar, but he managed to convince the press and a sufficient number of people that Hillary was more of a corrupt liar.

Now a President who was impeached, presided over the most corrupt and unethical modern administration, surrounded himself with criminals, engaged in blatant nepotism, and profited from public office is suggesting that the new administration is scandal-plagued before it begins. Which will work to make the press report on Biden's scandals--no matter how unrelated to the President or the administration--as if it was on a similar scale and degree to what we just witnessed (and continue to witness).

• And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

Posted by Howard Wasserman on December 11, 2020 at 10:25 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, December 10, 2020

New Fed Courts cases from SCOTUS (Updated)

As the Court wrestles with absurd original-jurisdiction cases, some procedure decisions from SCOTUS today, with some interesting twists and background points.

Carney v. Adams involved a challenge to Delaware law controlling party affiliation for judges; a unanimous Court, per Justice Breyer, held the plaintiff lacked standing because he failed to show he was "able and ready" to do something to be injured by the challenged law. Bare testimony that he "would apply" for a judgeship but for the party limitations was insufficient to establish a particularized harm, especially when balanced against the sequence of events (he never applied for any judgeship, retired as an attorney, read a law review article about the invalidity of these party limits, unretired, changed his party affiliation from Democrat to Independent, then filed the lawsuit about a week later). Basically, he got Lujaned--he did not have the judicial-application equivalent of a plane ticket. Justice Sotomayor concurred to comment on some issues that might arise on the merits of a future challenge to laws such as these.

Tanzin v. Tanvir, unanimously per Justice Thomas, held that federal officers could be sued for damages under RFRA; the action was brought against FBI agents who allegedly placed three Muslim men on the "No Fly List" when they refused to act as informants. A lot of discussion. RFRA provides an express cause of action against governments, which includes officials and other persons acting under color of law, terms which include personal-capacity claims against government employees. The Court uses § 1983 to establish background understanding for concepts such as under color and damages as a remedy for constitutional violations.

Qualified immunity lurked in the background in Tanvin in two interesting respects. First, the Court drops in a footnote that everyone agrees that the officers can assert qualified immunity, which pre-ordains what will happen in this action on remand (it will not be clearly established that placing someone on the List in retaliation for not spying on their neighbors violates religious freedom). I guess it makes sense as a policy matter that qualified immunity applies. But why does it work as a statutory matter. The logic of qualified immunity and § 1983 is that a qualified-immunity-type defense existed at common law in 1871 and was incorporated as background in § 1983 in the absence of a plain statement rejecting the defense. (The dissimilarity between modern QI and what existed at common law is the basis for Will Baude's criticisms). The logic of qualified immunity and Bivens is that Bivens is the federal counterpart to § 1983. But what is the source of qualified immunity to assume it was incorporated (again by silence) into RFRA? I guess the argument would be that RFRA displaced § 1983 and Bivens and was modeled after both, so any defense built into these was built and incorporated into the new statute. (Update: Doug Laycock confirms this, along with the belief that QI was a necessary concession to get a damages remedy in the statute. Thomas describes the scope of § 1983 at the time of RFRA as permitting "monetary recovery against officials who violated 'clearly established' federal law.").

Second, Thomas is the one Justice who expressed an interest in at least reconsidering QI. It thus is interesting that he incorporates into RFRA the broad understanding of under color to include suits against any official acting as an official in his personal capacity. One argument for broad QI (as Will discusses in his article) is as a counterweight to a broad conception of under color--Screws/Monroe were wrong, so QI corrects that imbalance without overruling those cases. But I wonder what Thomas' broad adoption of under color means for his views on QI.

United States v. Briggs unanimously held that certain rape prosecutions under the UCMJ were timely, an unfortunate loss for Steve. Justice Gorsuch concurred to express his continuing view that SCOTUS lacks jurisdiction to review decisions from the Court of Appeals for the Armed Forces (an Article I Court).

Posted by Howard Wasserman on December 10, 2020 at 11:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The Texas Lawsuit on the Presidential Election

Here are some questions about the pending litigation:

  1. Should the Supreme Court reject the bill of complaint without explanation, should an explanation be given, or should one or more Justices write an explanation for themselves? This strikes me as a hard issue. There are many people who think that the Court will do something to change the election result. If the Court does not do that and does not explain why, would that not be a problem? I can also see, though, that getting agreement quickly on what to say (in other words, before the Electoral College meets) might be rather difficult. So maybe they should just issue an order and let some subgroup write an explanation for themselves.
  2. Will the three Justices who were appointed by the President feel compelled to explain themselves? I can see advantages to that in confirming the legitimacy of the election. But I can also see why they might want to stay as far away from that as possible (i.e. they'll get a lot of death threats).
  3. What will be the reaction when the Court rejects the lawsuit?

Posted by Gerard Magliocca on December 10, 2020 at 09:19 AM | Permalink | Comments (27)

Wednesday, December 09, 2020

#researchpitch: Monetizing Your Supreme Court Tenure

It won't be me, but it seems to me that this is a natural research topic for someone to pursue, both as an examination of the contemporary Court and against some kind of historical backdrop. The closest I can come to a general discussion is not quite on point, although I was glad to find it: Richard Hasen's 2016 Green Bag piece Celebrity Justice. It focuses on the volume of extrajudicial statements made by members of the Supreme Court, and muses about its causes, costs, and benefits. He concludes that we are not likely any time soon to "run out of Justices willing to step into the public spotlight to educate, dish, defend, cajole, sell books, entertain, or just bask in the celebrity spotlight." If others are aware of more on-point treatments, I'm happy to hear about it; my search was quick and crude.

I would be interested in seeing a piece focusing more on the verb "sell." Do what degree have a larger number of contemporary Court members profited off of their status as Supreme Court justices? What small-e ethical questions does it raise? What is the relationship between cause and effect--between the justices profiting off of their celebrity and the justices enhancing their celebrity through at least partly profit-seeking extrajudicial enterprises? What is the complex connection between monetizing one's tenure with, say, a memoir, and the circus and controversy of confirmation hearings? Many people lament what those hearings have become, somewhat variously depending on the nomination in question, but the controversy and publicity of the hearings makes the post-confirmation memoir more valuable, raises the visibility of Supreme Court justices, and thus makes it more likely that the next hearing will be even more public and visible, that there will be a market for the next memoir, and so on. Is there a difference between the simple and well-compensated memoir or generalized set of musings and a more substantive work? (I think there is. I am less inclined to think ill of the books published by Justice Breyer and the late Justices Scalia and Rehnquist than of a number of others. But I'm happy to be pushed to change my mind or to distinguish some of those works from others.)

What about more indirect profit, such as the usual round of international travel and lecture or teaching sinecures that justices like Anthony Kennedy enjoyed? And what about second-order monetization, perhaps abetted or encouraged by the individual judge even if he or she is not the direct beneficiary? It is not hard to find public criticisms of Virginia Thomas for profiting off of her husband's celebrity status. The financial beneficiaries of various RBG books and movies include family members and associates (such as her personal trainer), and I assume her blessing or access were at least sometimes relevant to those enterprises. Success in politics is always potentially a profitable family business or ancient Roman patron-client relationship in the mixed quasi-aristocratic/mercenary culture we inhabit. Are things really all that different for at least the pinnacle of the judicial branch? Should they be?

Some historical background would be useful too. Of course the current justices are not the first to write books, and some of those books were as light on legal substance as some of the present generation of books. But there may be significant differences in degree of profit. Justice Douglas was highly prolific. But I'm not sure he is a model we should want to follow.    

In any event, it's a fertile subject and I would love to see a comprehensive article or book on it, or at least a symposium on the celebrity justice phenomenon that addresses it decently.    


Posted by Paul Horwitz on December 9, 2020 at 12:21 PM in Paul Horwitz | Permalink | Comments (0)

Hungary and Germany arguments

Here is my SCOTUSBlog recap of Monday's arguments in Hungary, which focused on comity abstention; the Germany argument focused on FSIA jurisdiction.

My (usually wrong) quick take is that the judges were sympathetic to the plaintiffs' arguments that abstention is categorically unavailable where FSIA accords jurisdiction. But several justices wondered whether that issue is mooted if it holds that the expropriation exception does not apply in Germany. I need to re-listen to the Germany argument; initial reports suggest at least some justices were skeptical of allowing FSIA's expropriation exception to reach these sorts of foreign genocide claims.

The lawyer for the plaintiffs in Germany mentioned abstention in his opening and closing, including with an awful baseball metaphor.

Posted by Howard Wasserman on December 9, 2020 at 10:13 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, December 08, 2020

What a difference 160 years makes

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Posted by Howard Wasserman on December 8, 2020 at 07:41 PM in Howard Wasserman | Permalink | Comments (4)

Pardons and Mootness

Judge Sullivan has dismissed the prosecution of Michael Flynn in light of the President's pardon.

Interestingly, Sullivan dismisses the cases as moot and I do not understand why. The opinion discusses the understanding that acceptance of a pardon implies a confession of guilt, while exempting the individual from the punishment the law inflicts for a crime committed. Because the pardon does not render Flynn innocent of the crime charged, the appropriate course is to dismiss as moot.

I do not see why that follows. Dismissal on the ground of actual innocence is not appropriate. But saying the pardon "exempt[s]" the individual from the usual punishment for a crime suggests a dismissal of the prosecution because the pardon has placed Flynn beyond the reach of the law. That sounds in the merits--not actual innocence, but the scope and application of a law to an individual and an individual's conduct, which Morrison says is the merits. It sounds in an immunity, which is usually (and properly) seen as merits. It does not sound in an outside change of circumstances depriving the court of its power to accord meaningful relief or resolution to a dispute. (contra a defendant dying while the case is pending).

Consider it from the other direction. Imagine Trump grants himself a pardon for all conduct violating federal law prior to January 20, 2021. The U.S. prosecutes, Trump moves to dismiss the indictment based on the pardon, and the court decides that a self-pardon is valid. It seems to me the court would dismiss that indictment, finding the prosecution cannot proceed because Trump is, by virtue of the pardon, exempt from that law and its ordinary consequences. I do not think that court would dismiss as moot. So it should not be different because the pardon came before the prosecution was initiated as opposed to after.

Posted by Howard Wasserman on December 8, 2020 at 02:59 PM in Howard Wasserman, Judicial Process | Permalink | Comments (5)

What Is/Was Your Pandemic Hobby?

I'm curious what readers took up by way of new hobbies, habits, and obsessions during the pandemic. The poll numbers suggest many or most of you did. Personally, I went from being a terrible jazz drummer to being a merely bad (but enthusiastic) jazz drummer, enjoyed inflicting the results on my students from time to time, and read a large amount of jazz history. I would like to tell you my kids took up Latin or baking. (Although, if I recall my past controversies correctly, you need to stop baking bread.) In fact, they became proficient spend-time-on-TikTok-ers. (In fairness to them and their future online selves, they also took up guitar and ballet, of their own accord.)  

Comments open, for once. I add the obligatory and thus wholly unnecessary acknowledgments that being in a position to have a pandemic hobby is ipso facto an indication of good fortune and that having a hobby does not mean one doesn't also have and care about the job of teaching in a changing environment.  

Posted by Paul Horwitz on December 8, 2020 at 02:08 PM in Paul Horwitz | Permalink | Comments (8)

Monday, December 07, 2020

Explaining Chief Justice Chase's Inconsistency

In my prior post, I explained that Chief Justice Chase reasoned in Jefferson Davis's that Section Three of the Fourteenth Amendment was self-executing in Virginia in December 1868 and held in Griffin's Case that Section Three was not self-executing there at the same time. How can this be explained?

Let's start with extrajudicial explanations. Was Chase a racist who wanted to help a white defendant and not Black defendants? Hardly. He was a great anti-slavery lawyer. Did Chase act as he did because he wanted to be President and was putting his finger in the wind? Maybe. Chase pursued the Presidency even while he was Chief Justice. Did Chase rule differently in the two cases because he wanted the South to accept the legitimacy of the Fourteenth Amendment. Could be.

Turning to internal answers, there is a candidate. One is that in both cases Chase was acting as a small c-conservative who did not want to rock the boat. Concluding that Jefferson Davis could not be tried for treason due to Section Three would avoid a highly divisive trial. And concluding that Section Three did not authorize the release of many prisoners in Virginia avoided a different disruption. Put another way, Chase may have wanted to tame the Fourteenth Amendment as best he could.

Whatever the answer, one lesson from the Davis/Griffin pair is the the Fourteenth Amendment was destined to be read more favorably for whites than for Blacks even if that was not the intent. It was, you might say, in the judicial DNA from the very beginning. 

I will have more to say about Section Three of the Fourteenth Amendment soon, as I'm getting close to finishing the draft paper.  

Posted by Gerard Magliocca on December 7, 2020 at 09:12 PM | Permalink | Comments (0)

Consumer Contracts and Addressing the Boilerplate Challenge

Samuel Becher has two interesting articles up on ssrn about consumer boilerplate contracts. In Taking Boilerplate Seriously: Tackling Exploitation in Consumer Contracts Becher and Yehuda Adar propose a professional system of administrative oversight over the content of consumer form contracts. They propose to tackle the widespread use of unfair practices as well as unconscionable and plainly illegal terms in a way that is more proactive, regulatory and ex-ante, rather than the private law system that currently is relied upon. This proposal very much resonates with the argument I have been developing in the context of unenforceable employee contracts, such as non-competes and overreaching innovation assignment/proprietary information clauses -- that agencies like the FTC, the EEOC, the antitrust division, and the Dept of Labor should coordinate enforcement and prevention, rather than rely on courts to address enforceability and public policy ex post. here and see here for example.

In Termination without Explanation, he and his coauthor Uri Benoliel empirically study consumer agreements that allow firms to terminate their contract without disclosing the reason for termination. The Article examines the contractual termination mechanisms of 500 sign-in-wrap contracts of the most popular websites in the United States, finding that the vast majority of these contracts are non-transparent termination without explanation contracts. They propose to impose a duty to explain on firms. 

Posted by Orly Lobel on December 7, 2020 at 04:49 PM | Permalink | Comments (0)

Kraken the 11th Amendment

Judge Parker of the Eastern District of Michigan denied a preliminary injunction in the Michigan Kraken suit. One basis for dismissal, which I had not seen in these suits, was 11th Amendment. The court held that Ex Parte Young did not allow the § 1983 claims against the individual officers because the requested injunction is retroactive rather than prospective. EPY requires that the plaintiff seek prospective relief to end a continuing violation of federal law. This is not the mine-run EPY action, in which the plaintiff seeks to stop continuing enforcement of a constitutionally invalid law; the plaintiffs seek to "undo what has already occurred"--the certification of the election and the slate of Michigan electors.

This does not seem quite right to me. This is not a completed past violation. Plaintiffs do feel the ongoing effects of the constitutionally defective election and certification--the wrong candidate was certified as winner and the wrong electors appointed, in violation of these plaintiffs' constitutional rights. The relief, if granted, would have prospective effect--they would be back in the place they would be had the violative certification not occurred and in a position to have their rights remedied prospectively by a proper future certification. The analogy is a reinstatement claim, which is allowed under EPY--the unlawful firing occurred in the past, the plaintiff continues to feel the ongoing effects of the firing, and the court order will restore the plaintiff to where she would have been had she not been unlawfully fired.

The plaintiffs cannot get the remedy sought for other reasons--I doubt the court could order decertification, not to mention that their rights were not violated to begin with. But that does not mean the remedy is not "prospective" or the violation not "ongoing." Another way that all of these doctrines conflate jurisdiction, merits, and remedies.

Posted by Howard Wasserman on December 7, 2020 at 01:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

The Eyemonger - A Graphic Novel about Privacy

Dan Solove, one of the world's foremost privacy law experts has published a children's book about privacy and security. It's called the Eyemonger and it's about a person who spies on others, and trouble ensues. What a great holiday gift! 

Posted by Orly Lobel on December 7, 2020 at 01:29 AM | Permalink | Comments (1)

Sunday, December 06, 2020

SCOTUS and Shoah expropriation

SCOTUS tackles claims of Shoah expropriation on Monday in Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon and whether such claims can be brought in U.S. courts. Both cases consider whether international-comity abstention is available in cases under the expropriations exception to the Foreign Sovereign Immunities Act, which I will be covering for SCOTUSBlog. Germany raises the additional question of whether jurisdiction is possible under the expropriations exception when a foreign sovereign takes property from its citizens in its territory.

The Germany briefs offer a fascinating contrast in framing a case. The case arises from one piece of Nazi art looting--the collection known as the Weldenschatz (Guelph Treasure). Germany's summary of the facts goes, "A group of Jewish art collectors bought the collection in 1929, there was a worldwide depression in the 1930s, the collectors sold it at a bit of a loss, but hey, there was a worldwide depression, the collection has been on display without complaint since after the war." The survivors' summary of the facts goes, "Goering, Goebbels, Nuremberg Laws, Wannsee Conference, systematic exclusion of Jews from civil service and other parts of German society, gift for Hitler, lives destroyed, people dragged through the streets and killed by a mob in Frankfurt."

I will be writing about the comity piece of both arguments tomorrow.

Posted by Howard Wasserman on December 6, 2020 at 09:16 PM | Permalink | Comments (1)

The Common Law of Qualified Immunity

I want to flag an important forthcoming article in Stanford Law Review entitled "Qualified and Absolute Immunity at Common Law." Here is the Abstract:

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But while there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under nineteenth-century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This Article therefore provides the first comprehensive review of the common law around 1871 on government officer immunities. In particular, it canvasses the four nineteenth-century treatises that the Supreme Court consults in assessing officer immunity under the common law of 1871: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, nineteenth-century decisions.

These historical sources overwhelmingly refute the prevailing view among modern commentators about one critical aspect of qualified immunity. This Article confirms that the common law around 1871 did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties—like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the common law around 1871: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of a violation of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden.

Restoring the common law around 1871 on state officer immunities could address many modern problems with qualified immunity, and these three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that would sufficiently protect the separation of powers without resort to the “clearly established law” test—which frequently denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial.

Having read the paper, I can say that I think the basic argument is sound, though I have quibbles with some specific points. The article makes a significant contribution to what will likely be a long debate over qualified immunity reform.

Posted by Gerard Magliocca on December 6, 2020 at 08:48 PM | Permalink | Comments (3)

"Church, State & Society" Writing Competition

The Notre Dame Program on Church, State & Society  is sponsoring a writing competition for students:

The Program on Church, State & Society at Notre Dame Law School is pleased to announce a writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection.

Topic and Form: Papers should be focused, broadly, on topics related to church, state & society. For guidance on selecting a topic, students may wish to view our Program website and mission statement: https://churchstate.nd.edu/

Papers must be between 9,000-13,000 words, including footnotes and/or endnotes. Papers should be double spaced and use Bluebook citation rules.

Eligibility: The competition is open to law students in good standing, enrolled in a traditional law degree (J.D. or LL.B.), a Master’s degree (LL.M.), or a doctoral degree (S.J.D./J.S.D. or Ph.D.) program at an ABA-accredited law school within the United States. The competition is also open to recent graduates not yet practicing law (those completing clerkships or engaged in similar pursuits are eligible). Co-authored papers will not be accepted.

Submissions: Papers must be submitted by February 15th, 2021. Winners will be announced on or before May 7th, 2021. Papers must be e-mailed to the Program Director on Church, State & Society in .pdf form. Each submission must include a cover letter and resume in a separate .pdf document. Papers should not include author names in order to ensure that the Program Director can deliver submissions to judges and have them scored with anonymity. Emailed submissions should be sent with “2020 Writing Competition” in the subject line, and addressed to: Jonathan Hannah, J.D. at [email protected]

Judges: Papers will be judged by Church, State & Society Director, Richard W. Garnett, other faculty members at Notre Dame Law School, and possibly law & religion scholars from other U.S. law schools.

Prizes: First Place, $4,000 cash award; Second Place, $3,000 cash award; Third Place, $2,000 cash award; Honorable Mention, $1,000 cash award.

Posted by Rick Garnett on December 6, 2020 at 11:15 AM in Rick Garnett | Permalink | Comments (0)

Friday, December 04, 2020

It's been a long time since my civil procedure class

As the lawyer for President Trump said to a doubtful federal judge in the lawsuit challenging the election results. While asking a federal court to "remand" something to the Wisconsin legislature. I may need to replace or supplement the long-standing motto atop my course blog.

Meanwhile, I have to decide whether to give students the scheduling order from Chief Judge Pepper in the Wisconsin Kraken suit, in which she enumerates Sidney Powell's substantive and procedural mistakes, then agrees to decide the TRO motion on the pleadings and without evidence, as the plaintiff requested. Some of the stuff in the order will not make sense to students new to procedure. But it highlights what happens when you ignore or do not understand how courts operate.

Posted by Howard Wasserman on December 4, 2020 at 04:26 PM in Civil Procedure | Permalink | Comments (0)

The Inconsistency of Chief Justice Chase

Let's continue with my discussion of the first Fourteenth Amendment opinion--In Re Griffin. In my last post, I explained that Chief Justice Chase held in that case that Section Three of the Fourteenth Amendment was not self-executing and that no legislation applied that provision in Virginia in 1868.

Now contrast this holding with a different case before Chief Justice Chase in Virginia at the same time  --the treason trial of Jefferson Davis. The treason case against Davis was very controversial and raised many difficult questions (for one thing, what kind of jury could be impartial). Chief Justice Chase, who as the Circuit Justice for Virginia was supposed to preside over the trial in circuit court, worked hard to find ways to delay or avoid that proceeding.

After the Fourteenth Amendment was ratified, Chase hit on a novel idea. Section Three could be read as the exclusive punishment for anyone to whom the provision applied, including Davis. Thus, Davis could not be tried for treason. The Chief Justice then met with Davis's attorneys and pitched this idea to them. WHAT? Yes, you read that correctly. Davis's lawyers then made the Section Three argument in open court to Chase and District Judge John Underwood (circuit courts in those days had two judges).

In the course of their argument, Davis's lawyers said Section Three was self-executing, They had to say that, as there was no statute applying Section Three to Virginia in December 1868. Chief Justice Chase and Judge Undewrwood disagreed about the merits of the Section Three claim and the question was certified for appeal to the Supreme Court. The Chief Justice told the Court Reporter to note his view that Section Three barred Davis's treason prosecution. Shortly thereafter, President Andrew Johnson gave Davis a pardon.

Here is the punch line. In Griffin, Chief Justice Chase held that Section Three was not self-executing. In Davis, he concluded that Section Three was self-executing. This was at the same time in the same state. He must have reasoned that Section Three was self-executing in Davis's case, otherwise he could not have concluded that Section Three barred Davis's prosecution when he did.

How can we explain this discrepancy? Is it simply that Jefferson Davis was a prominent white defendant and Ceasar Griffin happened to be a poor Black defendant? More on that next time.


Posted by Gerard Magliocca on December 4, 2020 at 03:53 PM | Permalink | Comments (0)

Thursday, December 03, 2020

Identify yourself as an academic

The New York Times questions Jenna Ellis' credentials as a lawyer (I am shocked, shocked to find they are not what she plays them to be), including how she came to call herself a "constitutional law attorney" and a "professor of constitutional law." Colorado Christian University, where she taught in an undergraduate legal-studies program as an adjunct and as full-time professor, says she never held the latter title.

But that got me wondering: How many of you use the subjects in which you write/teach in your title for purposes of self-identification, web sites, media, etc.? And how common is it for academics to do that? I identify myself as a professor of law, not a professor of civil procedure. Frankly, I become suspicious when I see "professor of [subject]" in a person's title on a web site or LinkedIn page, a sign that the person is trying too hard.

Am I being too harsh?

Posted by Howard Wasserman on December 3, 2020 at 05:37 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

How many cheers for the GOP? (Updated)

On one hand, officials such as Georgia's Brian Kemp and Brad Raffensperger have certified vote counts and denied claims of fraud or misconduct in the election. Republican legislative leaders in Michigan and Pennsylvania made it known early and clearly that the legislature would not (and in most cases could not) appoint a different slate of chosen electors.

On the other hand, Republican legislators (including committee chairs) in Michigan, Pennsylvania, Wisconsin, Arizona, and Georgia have provided official-seeming (and thus official for those who do not know any better) forums for Rudy Giuliani, Sydney Powell, Jenna Ellis, and their traveling show of rejected SNL-skit characters to spout nonsense. Pennsylvania State Sen. Doug Mastriano led the introduction of a formal resolution to appoint electors (he left the game when he contracted COVID). Republican members of canvassing boards in Michigan made noisy performance out of declining to perform (or considering declining to perform) ministerial functions.  Wisconsin Sen. Ron Johnson says Biden won but it would be political suicide to admit it--and Democrats do not love America. Alabama Rep. Mo Brooks announced that he will challenge electoral votes from the swing states, at least if he can find Senators to go along for the ride. And even those who have acknowledged Biden as the winner of the election and the president-elect have been couched--"I have not seen evidence so far." Obviously the President is being the President.

So, on one hand, a handful of Republicans in key positions who matter have made clear that nothing will be done to prevent Biden electors from voting in the College on December 14 and nothing will stop Biden's inauguration on January 20. The democratic process worked to install the properly elected official. On the other hand, they have amplified and lent credence to the stolen-election narrative. This will 1) undermine Biden's presidency before it begins in the eyes of a large swath of people (a much larger swath, officially sanctioned, than anything that happened in 2017) and 2) provide a pretext for Republican officials to enact sweeping changes to election laws to make it more difficult to vote, especially for certain constituencies in certain locations.

So how many cheers? They did not destroy democracy now. They are teeing up the possibility for destruction next time.

Update: How about both hands in one person? On one hand, Gabe Sterling, Georgia's Republican voting systems implementation manager, called out  the people making these false claims and inciting violence, including the Republican candidates in the two Senate run-offs. On the other hand, Sterling said he still would vote for both "because some things are bigger than this." What could be bigger than undermining democracy through calls for violence and false claims of voter fraud? How can calls for violence and false claims of voter fraud, if they are "not right," not be disqualifying for public office? In the balance of structural principles, partisanship prevails over democracy, even when the express goal of partisanship is undermining democracy.

Updated Again: Deduct at least part of a cheer. Republican House members, including the Speaker and Majority leader, sent a letter to the state's congressional delegation urging them to object to the state's electoral votes. it will not work now, for many reasons.* But the effort undermines Biden's presidency. And it puts in place the framework, narrative, and precedent to work in the future.

[*] As Steve notes, the House will not go along even if the Senate tries this and the safe harbor controls, requiring a divided Congress to accept the governor-certified slate. Biden has a 36-vote cushion, so losing Pennsylvania's 20 votes does not push him below 270. And if it did (or if other Republican-controlled legislatures join this circus, a distinct possibility), I am persuaded by the Dorf-Tribe argument that rejecting a state's slate of electoral votes lowers the number of electors appointed, lowering the denominator needed for a majority. So if Republicans pulled this for the four swing states (worth 52 electoral votes), Biden wins with 254 out of 486 votes, ten more than he needs.

Posted by Howard Wasserman on December 3, 2020 at 05:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Lethal religion

The Third Circuit held in an unpublished opinion that a Delaware prison did not violate RLUIPA or the First Amendment in denying a Jewish prisoner the use of teffilin (leather boxes connected by long leather straps). The maximum-security prisoner has a history of mental illness, being violent, threatening suicide, and smuggling contraband. Teffilin might allow him to smuggle contraband in the boxes or to harm himself or others with the straps and the prison could not divert the resources and manpower necessary to monitor his use. A dissenting opinion argued that RLUIPA requires the state to show more than inconvenience, including that it would be impossible (not merely inconvenient) to authorize the additional overtime and work hours necessary to supervise the plaintiff while he prays.

Posted by Howard Wasserman on December 3, 2020 at 08:49 AM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Wednesday, December 02, 2020

In Re Griffin and the Fourteenth Amendment

Section Three of the Fourteenth Amendment provided that many officials in the ex-Confederate States were ineligible to serve. Or did it? That was the issue that Chief Justice Chase decided in In Re Griffin. He held that Section Three was not self-executing and that legislation by Congress was required to make the ineligibility operative.

Months after the Fourteenth Amendment was ratified, some criminal defendants in Virginia brought habeas corpus petitions that made the following claim: The state court judge who presided over their trial and sentenced them was ineligible to be a judge because of Section Three. Accordingly, their convictions and sentences must be vacated. The District Court ruled in favor the petitioners and issued the writ.

Chief Justice Chase, the circuit Justice for Virginia, reversed these decisions. He did so based on two arguments. The first was that a "literal reading" of Section Three would cause chaos. If all acts by officials who were ineligible to serve after the Fourteenth Amendment was ratified were null and void, then that would mean that many civil judgments, deeds, and criminal convictions would have to be thrown out. Chase's second point was that Section Three imposed a punishment that was inconsistent with many other constitutional provisions. For example, there was no jury trial and no due process of law. And Section Three functioned as a bill of attainder or an ex post facto law. The Chief Justice conceded that a constitutional amendment could impose these sorts of punishments, but that the text should not be so read if another construction was possible. An alternative reading was possible: Section Three was not self-executing.

There are some interesting themes in Griffin that repeated themselves in subsequent Fourteenth Amendment cases during the 19th century. One was that the text should not be read as revolutionary. Another was that the text should be harmonized with the ideas of the 1787 Constitution. In Slaughter-House, both of these principles were applied to limit the Privileges or Immunities Clause in Section One (in the name of traditional federalism). In Griffin, they were used to limit Section Three (in the name of Article One and parts of the first set of amendments).

There was more going on in Griffin than meets the eye though. Once you compare that case to how Chief Justice Chase handled the treason proceedings against Jefferson Davis and his Section Three claim. More on that tomorrow.

Posted by Gerard Magliocca on December 2, 2020 at 07:14 PM | Permalink | Comments (1)

Botching jurisdiction and merits, Ex. No. 613

Here is an awful jurisdiction/merits decision from the Fifth Circuit, involving the treatment of state action/under color in a § 1983 action. (H/T: Jack Preis).

A public-school educational aide sues a contract sheriff's deputy assigned to the school, claiming excessive force from the deputy punching him. The district court denies qualified immunity, while noting in passing some doubt about state action but that the defendant conceded the issue. The deputy appeals the Q/I denial under the collateral order doctrine. The Fifth Circuit remands, on the ground that by failing to determine action under color, the district court failed to establish its subject matter jurisdiction before ruling on the merits.

This is many shades of wrong. State action/action under color is an element of a § 1983 action and has nothing to do with the court's subject matter jurisdiction. This is true as a logical matter--merits ask who can sue whom and for what conduct, which is what state action determines in a constitutional case (whether this defendant can be sued for this conduct because it was under color). But it is especially true after Arbaugh and Morrison, which labels as merits issues those affecting the "reach" of a law, meaning what the law "prohibits"--what conduct (under color or not under color) can form the basis for liability in a § 1983 constitutional claim. It has nothing to do with subject-matter jurisdiction, which is established because federal law "creates" the rights plaintiff is asserting (Fourth Amendment) and his right of action (§ 1983).

The court may have found itself bound by a 1980 circuit precedent saying state action was required to "invoke the district court's jurisdiction." But that case (both the majority and dissent) uses the term jurisdiction in the thoughtless way the Court (particularly Justice Ginsburg) has tried to rein in the past twenty years. And it is inconsistent with how Morrison and Arbaugh framed the definition of merits issues. A Third Circuit panel was willing to overrule circuit precedent that could not stand in light of those recent cases. Perhaps this panel was unwilling to do the same. But then perhaps tee this for en banc review.

One other note: This decision is a stew of bad Fed Courts doctrine. The only reason the court was in position to consider the issue at this point is the immediate appealability of qualified-immunity denials, which some have argued contribute to the over-protection of police. Immediate review is designed to speed litigation. Instead, the court avoided immunity to create a new round of district-court (and probably appellate) litigation of an issue that should not have been before the court of appeals.

Posted by Howard Wasserman on December 2, 2020 at 04:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Federal Rules of Trumpist Procedure

I started to add this to my earlier post about Trumpist Procedure (great article title), but decided it needs to stand alone.

Powell's Wisconsin lawsuit, which includes a plaintiff who never agreed to the lawsuit, included a "Motion for Declaratory, Emergency, and Permanent Injunctive Relief." It had to be filed twice because the lawyers filed a draft. They filed both without saying whether they had provided notice to the defendants or otherwise complied with FRCP 65(b) and local rules or whether they wanted a hearing. The court issued an order refusing to do anything, which is the best kind of order. Brad Heath of Reuters put it well:

Just an amazing pattern of lawyers showing up with what they say are the most important cases ever filed and botching the basics. Even the President's lawyers screwed up the everyday rules for suing people. These are the mistakes you see when prisoners represent themselves.

Courts are going to have to figure this out. But I am not sure demanding that the Trumpist lawyers adhere to the rules, refusing to act if they do not is the solution, and issuing (rightfully) annoyed orders is the answer. First, doing so ignores that their point is to make official-sounding noise in any forum; a court with "rules" is no different than a Courtyard-by-Marriott without rules. Second, orders such as this one make the court, especially an Obama appointee, part of the expanding conspiracy.

Posted by Howard Wasserman on December 2, 2020 at 01:13 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Northwestern Pritzker Seeks Director of SCOTUS and Appellate Advocacy Clinic

Northwestern Pritzker School of Law invites applications for a clinical faculty position to serve as the Director of its Appellate Advocacy Center, a Center in the Bluhm Legal Clinic, which includes the Federal Appellate Clinic and the Supreme Court Clinic.

The Center represents clients appealing their cases before the U.S. Court of Appeals for the Seventh Circuit and the United States Supreme Court, and, using the tools of non-directive clinical pedagogy, provides students with opportunities to participate in appeals. In the Federal Appellate Clinic, faculty and students represent indigent criminal defendants before the Seventh Circuit; in the Supreme Court Clinic faculty and students collaborate as part of a Supreme Court litigation team in partnership with attorneys at Sidley Austin LLP.  

Candidates will be considered for appointment to the faculty of the Bluhm Legal Clinic of Northwestern Pritzker School of Law at a rank commensurate with experience and qualifications. We seek applicants for this position with distinguished academic records and/or a demonstrated track record of directing, developing, and teaching appellate advocacy or training courses.

Applications accepted here: Apply for Job

Please contact Elizabeth Fritz ([email protected]), Associate Director of Faculty Affairs, with any questions. 

Qualifications: The person selected for this position must have a JD; at least three years of experience in directly relevant practice areas; excellent written and oral communication skills; experience supervising law students, law student interns, or junior lawyers in clinical legal education or professional settings; experience supervising student mock trial teams; and enthusiasm for collaborating in departmental and law school committee work. 

Requisite attributes include: demonstrated abilities to inspire others and to work collaboratively, creatively, and constructively with others.  The candidate must have strong organizational skills and be recognized as a respected member of the clinical community or relevant professional community.  This person should have a passion for teaching and learning as well as for the development of students and academic programs. The candidate must have the ability to integrate technology into the teaching and learning process. The candidate must also have the ability to successfully interact with students, other educators and educational institution representatives, and the general public in a professional manner.
The Bluhm Legal Clinic is currently made up of the Center on Wrongful Convictions, Children and Family Justice Center, Center on International Human Rights, Entrepreneurship Law Center, Environmental Law Center, Appellate Advocacy Center, Roderick MacArthur Justice Center, Civil Litigation Center and other clinical programs that involve civil litigation and criminal defense.

Candidates are highly encouraged to apply by December 11, 2020. Please contact Elizabeth Fritz ([email protected]), Associate Director of Faculty Affairs, with any questions. 

Northwestern accepts applications through our Faculty Recruiting System. Please read ALL instructions and make preparations before proceeding to the application page:

  • Please prepare all documents in advance as Adobe PDF files, and please be sure all information is entered correctly and accurately (especially names and email addresses), as there will be no opportunity for online revision after your application has been submitted. Required application materials include a CV and cover letter.
  • All required fields in the application form are marked with an asterisk and must be filled before clicking the “Submit” button.
  • Be aware that incomplete applications cannot be saved.
  • Applications will only be accepted via online submission (see link below).

Applications accepted here: Apply for Job

Northwestern University is an Equal Opportunity, Affirmative Action Employer of all protected classes, including veterans and individuals with disabilities. Women, racial and ethnic minorities, individuals with disabilities, and veterans are encouraged to apply. Hiring is contingent upon eligibility to work in the United States.

Posted by Howard Wasserman on December 2, 2020 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Judges, procedure, and Trumpist litigators (Updated Again and Again and Moved to Top)

We have seen some strangeness the past two days over one of Sydney Powell's Kraken lawsuits in Georgia. That lawsuit seeks, among other things, an order seizing and impounding voting machines in the state and allowing plaintiffs to perform a forensic inspection. On Sunday afternoon, the court issued a scheduling order that included a TRO prohibiting the state from scrubbing data from the machines. Later, the court issued a second order, rescinding the TRO, apparently because the state does not control the machines; counties do and the counties were not sued. On Sunday evening, the court issued a third order following a Zoom conference, reinstating the TRO prohibiting defendants from scrubbing or allowing scrubbing of the machines, limited to three counties, apparently on the understanding that plaintiffs will amend the complaint to add them as defendants. This morning came a fourth order, certifying the third order for immediate review under § 1292(b).

Why the insanity? I agree with several online lawyer-commenters. The judge issued a routine, non-adversary scheduling order that sought to preserve the status quo. And Powell, Lin Wood, etc. reacted by taking to Twitter to crow about a giant initial step towards exposing the massive international voter-fraud conspiracy, a substantive victory. Then the defendants pointed out the problems with the litigation and thus with even that routine order--the plaintiffs sued the wrong people and the machines probably cannot be subject to a plaintiff-run forensic audit, at least without more allegations and proof of wrongdoing. And the court sought a middle ground by allowing someone (not clear who) to appeal an otherwise-unappealable order. And questions remain about what the controlling question of law could--whether it was proper to issue a TRO before the amended complaint was filed? whether a forensic audit is available? It might be that the 11th Circuit could reject any appeal (the court of appeals must agree with the district court's certification that appeal is appropriate).

The lesson is that courts must be as cautious as everyone else in these waters. Routine litigation is not routine litigation with these lawyers or with their public followers, because they are not here for judicial resolution. The most innocuous order or statement by the court will be seized upon and trumpeted either further evidence of the vast international conspiracy of which the judge is a part or as a heroic step by a heroic judge to stopping the greatest evil in human history. (Recall Jenna Ellis's insistence that Giuliani had won the argument in the MDPa case, as evidenced by the judge recommending places for the lawyers to get a drink). But unless courts begin to use the tools at their disposal to stop these abuses, they must think twice about even the smallest procedural step or statement.

Updated on Tuesday: Politico has the full story based on the transcript of the Sunday conference, with commentary. The first two orders were proposed drafts circulated among the court and parties that were publicly disclosed and promoted by plaintiff counsel, thus far without consequence. The judge seems less unreceptive to these allegations than others; while stating that the allegations are backed by "precious little proof," he appears to take them as sufficiently plausible to warrant ordering limited preservation. The § 1292(b) order was entered in response to the state's desire to appeal, although still no word on the controlling question of law. No appeal has been filed.

My basis point in this post stands: Trumpist litigators are going to abuse the system. And judges have to be ready for it.

Updated on Wednesday: Instead, the plaintiffs appealed the TRO granting them narrow relief (no clearing machines in three counties). And they did not rely on the § 1292(b) certification, which appears to have been at the state's request. Instead, plaintiffs argue that this is an appeal as of right of an injunction under § 1292(a), based on Eleventh Circuit precedent from the Terri Schiavo litigation treating a TRO as an appealable preliminary injunction where the grant or denial "might have a serious, perhaps irreparable, consequence, and can be effectually challenged only by immediate appeal." In Schiavo, the consequence was that Schiavo would die; I doubt the consequences here are so grave.

Meanwhile, the notice of appeal argued that the appeal divests the district court of jurisdiction. This caused the district court to stay its scheduling order, including the briefing schedule (state briefs were due today) and a Friday hearing, both of which are off. This was unnecessary and probably unwise, because the district court must begin anew when the case returns (probably quickly) from the court of appeals. The district court was was not pleased, stating in the order that any delay in briefing and holding a hearing upon remand would be attributable to the plaintiffs and not the court.

Mike Dunford has more on how bad the lawyering has been in this case. Again, my basic point: This is about using the system to put on a show for a segment of the public. 

Posted by Howard Wasserman on December 2, 2020 at 08:32 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (5)

Tuesday, December 01, 2020

Judicial departmentalism, writs of erasure, and the stupidity of political hackery

Tennessee state representative Jay Reedy has introduced a resolution calling on Congress "to enact legislation to prohibit the desecration of the United States flag." Reedy is being dragged by free-speech types.

As a matter of judicial departmentalism, Congress could constitutionally enact this law and Reedy and his compatriots can constitutionally urge Congress to do so. If Congress believes that the best understanding of the First Amendment is that it does not prohibit flag desecration, it can act on that understanding and enact legislation prohibiting flag desecration. And Reedy can urge that action. It would be a waste of time, a zombie law that could never be enforced because of existing judicial precedent (any attempt at enforcement likely would not enjoy qualified immunity). But Congress could pass such a law, if only for symbolic purposes. And Reedy may have good reason for wanting it to do so.

Here is why Reedy is stupid: A federal law prohibiting flag desecration already exists. Because judicial review does not erase laws, the provisions of the Flag Desecration Act of 1989, declared invalid in Eichman, remains on the federal books. So the problem is not that Reedy is urging Congress to enact an "unconstitutional law," since Congress can make its own judgments as to constitutionality, even if they differ from those of SCOTUS. It is that Reedy is urging Congress to enact a law it already has.

Posted by Howard Wasserman on December 1, 2020 at 03:12 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Defending Trump's lawyers on hearsay (Updated Twice)

The Trump Campaign is attempting to appeal an early defeat in Michigan state court. A core piece of evidence was an affidavit by Trump poll watcher Jessica Connarn, testifying that an unknown poll worker had come to hear, in tears, and told her that another unknown poll worker had told her to change the dates on ballots. The trial court rejected this as hearsay-within-hearsay. The brief argues that Connarn's affidavit is not hearsay, because she was describing her first-hand impressions (that the unknown poll worker spoke, that she was crying, that other people yelled at her). The arguments have drawn the scorn of law Twitter.

I want to offer an argument that some of this is not necessarily inadmissible hearsay, although not for the reasons the Campaign argues in its brief.

There are two layers of hearsay--Unknown poll worker # 1 to Connarn and Unknown Poll Worker # 2 to Unknown Poll Worker # 1. Connarn can describe what she saw UPW #1 do. But the Campaign wants her to testify to what UPW #1 said UPW #2 said. That is the additional layer the Campaign seems to ignore.

As I like to map these problems for class:

    Connarn---UPW # 1 ("Someone told me to change the dates")---UPW # 2 ("Change the dates")

In a case with multiple declarants, each layer must be admissible under the rules. Working from the outside in until we get to the witness:

    # 2 to # 1: We do not know what was said. But it seems that #2's words to #1 are a command ("change the dates"), which is not a statement. Alternatively, and more powerfully, the command to change the dates is the unlawful conduct--manipulating ballots--alleged in the case. So what # 2 said to # 1 is a verbal act (the wrongdoing of commanding the change of dates requires words) which is not treated as a statement offered T/M/A. If # 1 testified, I do not think hearsay would bar her from testifying to what # 2 told her to do.

    #1 to Connarn: This is a statement (# 1 asserts that # 2 told # 1 to do this) and it is offered T/M/A (it must be true that # 2 told #1 to do this). But if # 1 was crying, does that make this an excited utterance--she is describing the event (being ordered to change the dates) while under the stress of excitement (shown by her crying) caused by being order to change the dates. Perhaps not, but that is the argument the Campaign could make; that it is not making it shows how bad the lawyering is.

To be sure, there are reliability concerns with Connarn's testimony, since both declarants are unknown and she probably has serious credibility problems. Perhaps that undermines the relevancy. Or perhaps it triggers a solid 403 objection. Or perhaps a court decides that the second statement (# 1 to Connarn) is not admissible as an excited utterance because the specific circumstances of the particular statement (unknown people reporting something to an unreliable witness) indicate untrustworthiness--some courts add this element to the 803(2) analysis. But I do not  think it is as simple as saying "this is hearsay."

Please tell me why I am wrong.

Update: The commenter below says there is an additional layer of hearsay--Connarn did not speak to the crying poll worker, but was told by an unknown Republican poll challenger about what the crying UPW #1 said. Looking at the Affidavit, this is right. The affidavit says: "I was approached by a Republican Party poll challenger, who stated that a hired poll worker of the TCF Center, in Wayne County, Michigan, was nearly in tears because she was being told by other hired poll workers at her table to change the date the ballot was received when entering ballots into the computer."

So, as the commenter says, on my model we have:

    Connaran--GOP--UPW #1---UPW #2.

There is no argument to get that new innermost leg (GOP to Connaran) in under the rules. Even if the GOP person was crying or speaking right after it happened, she is describing/upset by what she was told by UPW #1 and Connaran is repeating that for T/M/A. I give a similar example in class to distinguish a declarant excited by and describing an event and a declarant excited by and repeating what someone else says about an event.

But if this is correct, Thor may be in some trouble. Here is how the brief summarizes Connaran's affidavit:

    p.4: Jessica Connarn testified in her affidavit that she personally witnessed a poll worker’s distress because that poll worker was instructed to count ineligible ballots being tallied as lawful votes at the Detroit central counting board.

    p.17: Jessica Connarn’s affidavit describes how an election poll worker told Jessica Connarn that the poll worker “was being told to change the date on ballots to reflect that the ballots were received on an earlier date.”

    p.22: Jessica Connarn’s affidavit describes how an election poll worker told Jessica Connarn that the poll worker “was being told to change the date on ballots to reflect that the ballots were received on an earlier date.”

The brief three times states that  crying UPW # 1 told Connarn personally, not the "Republican poll challenger," about the date-change command. Unless Connarn submitted a second affidavit at some point. Which then puts her to the task of explaining away the contradictory sworn testimony.

Updated Again: Unless (I know, I am spending too much time on this): One could read the original affidavit (not the situation described in the brief) a bit differently: Not as the GOP challenger being told by # 1 what # 2 had told her to do, but as the GOP challenger having witnessed first-hand the exchange between #1 and #2 and reported it to Connarn. The affidavit does not make clear how GOP found out what # 2 told # 1. So perhaps we have:

    Connarn---GOP ("2 told # 1 to change dates and # 1 was crying")---#2 ("change dates")

#2's statement remains a verbal act, witnessed by GOP and about which GOP could testify without hearsay objection. What about that inner leg from GOP to Connarn? I think it could be a present sense impression, depending on when GOP spoke to Connarn, or an excited utterance, if GOP was somehow upset by what she witnessed and is describing; we need some foundation. Either way, GOP is describing an event or condition (#2's verbal act) to the person who will take the stand.

Posted by Howard Wasserman on December 1, 2020 at 02:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

In Re Griffin

I am going to begin a series of posts on a significant part of an article that I'm working on, which is tentatively titled "Amnesty and Section Three of the Fourteenth Amendment." The posts concern In Re Griffin, an 1869 circuit decision by Chief Justice Salmon P. Chase.

Why am I so interested in Griffin? The short answer is that Griffin is the first Fourteenth Amendment opinion (as far as I can tell). Griffin was issued in May 1869, less than a year after the Fourteenth Amendment was ratified. The reason Griffin does not receive the attention that a "first" usually gets is that the opinion is about Section Three of the Amendment, which nobody cares about now, rather than about Section One.

This oversight is a mistake, as I will try to show. Griffin is extremely interesting because it set the tone for much of the subsequent interpretation of the Fourteenth Amendment and stands in sharp contrast to how Chief Justice Chase understood Section Three of the Fourteenth Amendment in a companion case--the treason trial of Jefferson Davis. More tomorrow. 

Posted by Gerard Magliocca on December 1, 2020 at 10:48 AM | Permalink | Comments (1)