Monday, April 19, 2021

Bad state action arguments (Updated)

MyPillow, facing a billion-dollar defamation lawsuit by Dominion Voting Systems over Mike Lindell's post-election nuttery, has sued Dominion (note: It is a new action, not a counterclaim--not sure why). It asserts claims for violations of the First Amendment and due process.

How? Here is ¶ 89: "Defendants, at all times relevant hereto, were performing and fulfilling a traditional and exclusive state and governmental function of administering public elections, pursuant to state statutes, ordinances, regulations, customs, rules and policies established thereunder, and as such, were acting under color of state law."

Administering elections qualifies as a traditional-and-exclusive public function, when the government delegates or turns control over the election machinery to a private entity, such as the Democratic Party in Jim Crow Texas. It does not apply to government contractors who support the government in performing those traditional-and-exclusive government functions. So this argument is silly and doomed to fail. Although I suppose it at least has a better doctrinal base compared with those arguing that Twitter, YouTube, et al. act under color because managing a "speech forum" is a public function or because § 230 immunity makes them the government or because saying they are committed to free expression makes it the government.

Update: Fleshing this out a bit following an email exchange with a reader.

    First, none of this matters to the present action. Even if Dominion acted under color in performing election-related functions, it does not act under color for all purposes. The allegation in this action is that Dominion violated the First Amendment by publicly criticizing and suing MyPillow for defamation. Dominion is not under color in doing that, because it is not wielding any authority derived from government. The claim is not saved by the argument that Dominion was responding to MyPillow criticisms of Dominion's allegedly under-color election conduct. The chain of causation does not extend so far. Devin Nunes--an actual government official--does not act under color when he sues cows for criticizing how he performs his (under color of law) government functions.

    Second, Dominion's supposed malfeasance was all over the place in the post-election litigation and various Kraken and Kraken-adjacent complaints were loaded with allegations of how Dominion voting machines helped throw the election to Biden. No one thought to include Dominion in any of those suits on this theory?

    My presumption in these arguments is that Dominion's role is limited to selling/renting the machines to the government, installing them, training government officials on them, and providing technical support where necessary; Dominion is not more actively involved in running the collection and counting of votes. This makes Dominion like the company that provides tasers or handcuffs for police--even if those devices somehow contribute to the constitutional injury, providing them does not alone create state action. A greater level of joint cooperation with government officials might change the conclusion, creating joint participation and a nexus because government enables the private misconduct. (The example from a reader is police hiring private security to provide additional crowd control at a public event). The complaint does not provide any facts showing a greater level of engagement by Dominion.

Posted by Howard Wasserman on April 19, 2021 at 04:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, April 11, 2021

Universality in Tandon v. Newsom

Christopher Sprigman started a Twitter thread contemplating what happens if California disregards or circumvents the order in Tandon v. Newsom. A different thread derides the suggestion as "stupid." I do not believe California will attempt this, so the issue is academic. But we can illustrate how litigation operates by parsing this specific case.

We need to break down what state officials might attempt to do and against whom.

Tandon was a lawsuit by ten plaintiffs, individually. Newsom and other California officials are enjoined from enforcing COVID restrictions against these ten individuals and the religious groups they head. Any attempt to enforce against them would constitute disregard for a court order. It could be punishable by contempt, sanctionable by fines and, in the extreme, jail. And yes, Biden would be obligated to send in US Marshals, if not the 101st Airborne, to enforce the court's order against state officials as to these ten plaintiffs.

No court order prohibits Newsom and other California officials from attempting to enforce the regulations against anyone other than those ten individuals. State officials therefore would not be in contempt of any court order in attempting to do so. Nor would they be "disobeying" the Supreme Court, because the Supreme Court did not order them to refrain from doing anything as to anyone other than those ten plaintiffs. And Biden and the US Marshals would play no role, because there is no court order to enforce.

What would happen if Newsom or other state officials attempted or threatened to attempt this?

    • The new targets would sue in federal court, asking for an injunction to protect them.* They should get it, although a lot depends on how much precedential force these per curiam shadow-docket "decisions" or "orders," even with five justices behind them, carry. They may carry force less as precedent than as a looking threat--lower courts are on notice that failure to enjoin will be summarily reversed by SCOTUS, which now sees it as its job to superintend litigation without awaiting finality or full briefing. Either way, it seems likely that the district court would issue that injunction prohibiting enforcement against these new targets. The new targets also could obtain attorney's fees as prevailing parties, which might be the strongest drag on pursuing this strategy. This new judgment and injunction protects these individuals against enforcement by these state officials. Were officials to continue enforcement efforts as to these plaintiffs, they would be disobeying a court order; subject to contempt, fines, or other sanctions; and subject to action by US Marshals.

[*] Alternatively, they might join as plaintiffs in the current action and ask the court to expand the injunction. There are some close Rule 20 joinder issues there.

    • The new targets also might ask for damages from the attempt or threat to enforce, even if only nominal. The question then is whether the defendants would lose qualified immunity for their actions. Is it now clearly established that COVID regulations treating religious practice less favorably than any other activity (comparable or not) violates the First Amendment? Again, it depends on how courts treat these orders as precedent that clearly establishe a right.

Would Justices Thomas and Gorsuch, both on record as rejecting application of injunctions beyond the names plaintiffs to that case, disagree with any of this?

This is the first time we have seen this idea from the left; previous talk of "resistance" efforts came from the right, in response to Brown and Obergefell. And it does no good to distinguish this case as involving a "rule that religious people get to ignore the law." Any framing--here, in Brown, or in Obergefell--reduces to disagreement with the substance of a decision and an attempt to convert disagreement into a suggestion of illegitimacy.

Posted by Howard Wasserman on April 11, 2021 at 05:12 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thoughts on Caron Nazario lawsuit

Here is the complaint. A few thoughts.

• The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here.

• The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of that effort. First Amendment retaliation is tough--the plaintiff must prove the officers did not have probable cause to arrest for anything, which typically  is tough to show. But the camera footage helped in framing that claim.

• The complaint does not try to do too much. Nazario sues only the officers for the immediate violations. He does not try to weave a failure-to-blank theory to establish municipal liability based on patterns of past misconduct by these or other officers. The complaint also does not spend pages weaving this action into the broader national problem of police abuse. It does not employ outraged rhetoric to appeal to the reader's emotion. Such information would not be legally important to this case (except in furtherance of the failure-to-train theory that the plaintiff does not pursue). But it would be politically important in placing this case in a bigger picture and drawing public interest and attention to the case. Beth Thornburg coined the term "pleading as press release" to describe using the complaint to speak to, and litigate one's position in, the public . Whatever the merits of doing that, it is interesting that this plaintiff and his lawyer did not try it. Maybe the video, which is all over the internet, performs the work that the language of the complaint ordinarily would perform--news stories can describe the video rather than quoting outraged rhetoric in the pleading.

Posted by Howard Wasserman on April 11, 2021 at 01:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, March 30, 2021

Tenth Circuit adds to the pantheon of awful qualified-immunity decisions

From the Tenth Circuit, in a case arising from Denver police seizure of a tablet computer from a bystander who filmed police using force against another person. This involves less egregious facts than six hours in a feces-laden cell or stealing coins while executing a warrant.  But it demonstrates how far afield the analysis has gone.

Denver police department told officers in their training that the First Amendment protected the right to record. The officers disregarded express departmental guidelines--that is, they knew their conduct violated the First Amendment as they had been instructed on it. The court said that was irrelevant because: 1) the officers' subjective knowledge of their wrongdoing is irrelevant under Harlow's objective standard and 2) only judicial opinions can clearly establish rights because the Constitution means what the courts say, regardless of any training by the executive department.

This seems wrong for several reasons.

First, the standard that SCOTUS has floated in recent cases is that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." What does that second point mean if it does not allow immunity to be lost when the officer knows the law and still violates it. Second, SCOTUS has looked at departmental guidance in the qualified immunity analysis. In Wilson v. Layne, the Court pointed to US Marshal regulations allowing media ride-alongs and said they could establish the lawfulness of conduct, so long as they were not obviously unconstitutional; it should follow that guidance can establish what is not lawful. In Hope v. Pelzer, the fact use of the hitching post was prohibited by Alabama Bureau of Prisons guidelines helped clearly establish the right, along with not-quite-on-point precedent. And the Third Circuit in Fields v. City of Philadelphia considered the role of departmental policy in clearly establishing a right, although the court there said the regs did not clearly establish the constitutional right because it was not clear that the regs were grounded in the First Amendment as opposed to good policy. Nevertheless, the parties and the court worked on the understanding that departmental policy is part of the analysis. At the same time, of course, the existence of department policy instructing officers allows the city to avoid municipal liability because they had trained their officers on a highly protective version of the First Amendment.

Second, the sort of naked judicial supremacy is unwarranted and unjustified. Yes, executive interpretation will yield to judicial understanding once matters hit court. But the court leaves no room for departmentalist interpretation and training.

Third, the court pulled an interesting sleight-of-hand in looking at law from other circuits circa 2014 (when these events occurred). Four circuits had recognized some First Amendment protection for recording of police pre-2014. A "robust consensus" of non-SCOTUS authority can clearly establish. But the court said none of those courts had found the right clearly established; the court was more persuaded by the non-finding of the right as clearly established (although some cases were not for damages and thus immunity was not in issue) than by the conclusion that the First Amendment was violated. And one of the cases had a dissent (Judge Posner dissented in the Seventh Circuit case), suggesting a disagreement among judges that precludes a right being clearly established.

Fourth, the court bypassed the merits. Why? Because everyone in the case agrees that the First Amendment right to record exists and was violated here. And the constitutional question is best resolved in an adversarial posture featuring powerful arguments on both sides. So these officers are off the hook, so this case does not even put the next officer on the hook for the same misconduct. So the court may have offered officials a wonderful new strategy in § 1983 cases: Concede the merits, prompting the court to skip ruling on the merits and allowing the officers to prevail on clearly established. The court will never provide the precedent it has deemed necessary. And if formal government policy cannot clearly establish a right, litigation concessions certainly cannot do so.

A depressing piece of work. I am curious to see if it survives en banc review. Or if this will be the case that prompts reconsideration of this mess.

Posted by Howard Wasserman on March 30, 2021 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Trying and failing to keep standing and merits distinct

The Eighth Circuit offers the latest example, in a First Amendment challenge by vegan food producers and advocates to a Missouri law prohibiting misrepresentations of products as "meat" when not derived from animals.

The majority held the plaintiff had standing but had not shown a likelihood of success on the merits entitling it to a preliminary injunction, while the dissent argued that the action should have been dismissed for lack of standing. But everything turned on the same issue--whether the plaintiffs' proposed conduct violated the law and whether they were likely to have the law enforced against them, given that they did not "misrepresent" their plant-based products as being "meat." The majority said that standing is analyzed under Susan B. Anthony List, which requires a showing that the statute "arguably" reaches the plaintiff's conduct and there exists a "credible" threat of enforcement. But SBA "does no work" beyond standing; the merits of the claim (and the first prong of your injunction analysis) asks whether the plaintiffs' conduct was "likely to be seen" as violating the statute. On the other hand, the dissent took those same facts as not establishing standing.

The majority cited circuit precedent acknowledging that standing "tracks" merits and is "closely bound up" with whether the plaintiff is entitled to relief. But the court insists they are not "coextensive" and must not be "conflate[d]." But if the concepts turn on the same fact, they are doing more than tracking one another. If two judges look at the same fact and one uses it to find the absence of a cause of action and one uses it to find a lack of standing, they begin to sound coextensive. Which raises the question of why courts bother--why spend so much time on standing only to use the same fact to find a failure on the merits.

Posted by Howard Wasserman on March 30, 2021 at 11:34 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

A practical problem with qualified immunity is its inconsistency. This is especially true with respect to the level of generality at which a right is defined, which often determines whether a right is clearly established--the broader the level of generality, the more likely that precedent, created on different facts, can clearly establish. Case in point: The District of New Mexico holding that it was clearly established in 2019 or 2020 that a local elected official violates the First Amendment by blocking people from their private Facebook page.

At first glance, this seems impossible. SCOTUS has never addressed this, nor has the Tenth Circuit (which includes New Mexico). The two appellate decisions holding that the First Amendment prevents government officials from blocking people on social media--the Second Circuit in Knight Foundation and the Fourth Circuit  in Davison--came in 2019. That is not a "robust consensus" of lower-court of precedent. But the court did not look for such factual specificity. Rather, the rights at issue were to be free from viewpoint discrimination in online spaces used as "metaphysical" public fora and from viewpoint-based retaliation in those public forums.

This stands in sharp contrast to the typical approach. Even outside the absurd cases ("precedent saying it is unlawful to steal drugs during a search does not clearly establish that it is unlawful to steal coins during a search"), courts look for at least some factual similarity beyond general free-speech principles. An official blocking a user from her private page, while leaving that person otherwise free to say whatever he wants wherever he wants, is a far cry from a state banning individuals from all social media.

Perhaps this is how things should be. If qualified immunity must remain, perhaps courts should think about rights more broadly and in a less fact-bound way. But it is out of step with current immunity doctrine, including from the Tenth Circuit, that "viewpoint discrimination" is not a sufficiently specific right.

Posted by Howard Wasserman on March 21, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, March 11, 2021

Twiqbal and voting

I  doubt I am in the first person to draw this connection, but here goes:

The political group(s) pushing to restrict voting rights are the same group(s) who seek to restrict access to courts and to civil justice. The real reasons for restricting access are the same--the people they want to win will not win if there is broad access (Republican candidates v. governments/businesses/persons who engage in certain types of wrongdoing). But they cannot acknowledge those real reasons. So they create evidence-free arguments equating expanded access with abuse of the system (massive voter fraud  producing an incorrect, inaccurate winner v. frivolous litigation with burdensome and disproportionate discovery hurting innocent companies and producing coerced or inaccurate judgments).

Posted by Howard Wasserman on March 11, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

SCOTUS decided Uzuegbunam v. Preczewski Monday, holding 8-1 (Thomas for the Court, Roberts dissenting) that nominal damages are a retrospective remedy and plaintiffs can pursue them as the sole remedy for a past constitutional violation. The decision allows plaintiffs to vindicate rights (e.g., the right to protest in a time, place, and manner to which the plaintiff was entitled) that are easily violated but rarely, if ever, worth a lot of money. It also strips government of the power to moot cases after they have begun by repealing the challenged policies, at least where the plaintiff can show an injury from when the policy was in effect.

But the decision leaves many issues open and to be resolved by lower courts going forward.

One is how prevalent this practice will become. Will every plaintiff challenging the validity of a policy include a nominal-damages claim to guard against the government mooting the case? And how will this affect the willingness of courts to say the prospective claim is moot if there is a retroactive claim keeping the case alive? Courts are all over the map on when the repeal of an executive or department policy moots a case and when it is the sort of voluntary cessation that does not moot the case. On one hand, a court may hold the prospective claim not moot, since the nominal-damages claim will keep the case in court. On the other, it may be happy to dump the prospective claim and focus on a small-money claim for a likely de minimis past injury.

Second is how this affects attorney's fees, which was the hidden import of this case. A plaintiff who recovers nominal damages is a prevailing plaintiff entitled to fees under § 1988. Had this case come out the other way, it would have upped the incentive for government to repeal challenged policies, mooting the case and immunizing itself from fees.

But even if fees are available, the amount of recovery may be limited where the plaintiff only receives nominal damages after seeking more--when a plaintiff recovers nominal damages but nothing else, the reasonable fee may be "nothing." Courts might narrow the degree to which the plaintiff prevails, and the amount of fees she recovers, where the government repeals the challenged policy; the plaintiff prevails "only" on the past violation and can recover only for that legal work. An increase in nominal-damages actions may produce a drawback in the amount of fees courts are willing to award.

Third, Jim Pfander proposes that Congress should amend § 1983 to allow plaintiffs to bring claims seeking nominal damages--foregoing compensatory, punitive, and other substantial damages in exchange for the defendant being unable to assert qualified immunity. On one hand, this case treats nominal damages as a remedy consistent with Article III and thus within Congress' power to enact by statute. But the logic of Pfander's proposal is that nominal damages function like an injunction or declaratory judgment, neither of which is subject to qualified immunity. But today's decision paints nominal damages as s a retrospective remedy. Of course, the policy concern for an officer paying out of his own pocket disappears if he only will pay $ 1. But the validity of the proposal turns on that policy, not on the analogy between injunctions and nominal damages.

Fourth, the case illustrates the Court ongoing use of Article III to constitutionalize all sorts of merits questions. The majority talks about the need to show standing and a cognizable cause of action, assuming they are obviously distinct and never recognizing their unavoidable overlap. The Justices continue to make Article III and justiciability as a vehicle to discuss what injuries plaintiffs can recover for and what remedies they can get for those injuries, which should be core merits issues.

Roberts' dissent is worse. He argues (adopting the position of the United States and echoing his dissent in Campbell-Ewald) that a defendant can moot a nominal-damages case by depositing $ 1, avoiding a resolution on the merits. But an action for past injury (as the majority characterizes a claim for nominal damages) never becomes moot. Unlike an ongoing injury that ends when the policy causing injury is repealed, the past injury occurred and does not disappear with payment of money. The payment remedies the injury, putting the plaintiff where she would have been had the past violation of her rights not occurred. But the injury does not disappear and it does not become moot. Unfortunately, Kavanaugh wrote a one-paragraph concurrence to agree with that point in Roberts' dissent, meaning two members of the Court for that absurd position.

Finally, whether characterized as merits or mootness, the question remains whether government can do what the U.S. and Roberts/Kavanaugh would allow: Render the claims recognized in this case meaningless by depositing that $ 1 and demanding the government enter judgment, even if the plaintiff would rather not accept the settlement.

Posted by Howard Wasserman on March 8, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, March 04, 2021

Twiqbal meets the Kraken and Gondor

The Kraken and other pro-Trump/pro-Republican lawsuits about massive election fraud are fictitious nonsense brought by terrible lawyers. The litigation efforts, and the lawyers who brought them, have been justly ridiculed, But I am curious about one point of criticism--that the plaintiffs failed to offer proof of this massive fraud and the pleadings have been absurd because they included allegations of wrongdoing without proof. The same critics distinguished the leaky press conferences and Holiday Inn legislative "hearings" from courts, where the latter have rules governing proof.

Under notice pleading, however, the plaintiff is not required to plead its evidence or to offer proof of its allegations; the idea is to plead skeletal facts showing wrongdoing and leave it to discovery to find evidence behind allegations. Twiqbal requires more than that, of course. But even Twiqbal does not require a plaintiff to identify the evidence supporting its allegations, only that those allegations be more detailed. In any event, many people criticizing the Kraken pleadings decry Twiqbal for ratcheting up what plaintiffs must do to get into court and proceed to discovery.

Part of the issue is that the plaintiffs not only filed complaints, they sought immediate preliminary injunctive relief, which does require evidence beyond the allegations. something the plaintiffs were unable to provide. That made the motion, which must be supported by proof, more salient than the complaint which does not. Still, responding to a ridiculous complaint by demanding proof seems to ignore how federal litigation begins and the idea that the demand for proof comes later--discovery, summary judgment, and trial. And demanding that Gondor and the Kraken have proof at the outset, when we criticize the courts for demanding the same from a typical civil rights plaintiff, seems disingenuous.

Again, I am not saying these cases should have succeeded. Plaintiffs did need evidence for preliminary relief and did not provide it. But the framing outside the courts seems wrong.

Posted by Howard Wasserman on March 4, 2021 at 08:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Saturday, February 27, 2021

Universality and the CDC eviction moratorium (Updated)

Judge Barker issued a declaratory judgment in Terkel v. CDC, declaring the extension of the CDC's eviction moratorium constitutionally invalid. This creates a split with district courts in Georgia and Louisiana, as Ilya Somin describes. But the Terkel court did not issue an injunction, accepting the government's representations that they would "respect" the DJ; it added that the plaintiffs could "seek an injunction should defendants threaten to depart from the declaratory judgment."

As with all of this, the question becomes scope and what the government can do now. The plaintiffs are one individual and five property-management companies, in an action not certified as a class action. Saying the CDC would “respect” and not "depart" from the DJ should mean respect it as to the parties and that it "departs" it only by attempting to enforce against the plaintiffs, which it is unlikely to do. It should not stop the CDC from enforcing the policy against anyone else, certainly outside of Texas, who lacks the protection of a judgment.

The risk for the CDC in enforcing is that Judge Barker will get mad, issue an injunction, and make it universal. This would be wrong on several levels, beyond the usual normative incorrectness of universality. It would be incoherent for the judge to issue a universal injunction in furtherance of a party-particularized DJ.

Even if universal injunctions are appropriate in some cases, this would not seem to be such a case. This is not the DAPA/DACA cases, in which Texas was worried that non-enforcement outside of Texas causing undocumented persons to migrate into the state looking for driver’s licenses. It is not the sanctuary-city cases, in which allowing enforcement as to non-party jurisdictions injured them by shrinking the pool of available funds. It is not an immigration case, in which there is a perceived command that immigration law be uniform. The only conceivable argument for universality requires every injunction to be universal--the CDC policy is categorical and applies to all landlords who may want to evict people. Unfortunately, that is the argument I would expect Judge Barker to accept.

This case exemplifies when universality is inappropriate. Injunctions must provide the plaintiffs complete relief. These plaintiffs get that if they are protected against enforcement. The enforcement or non-enforcement of the CDC policy against anyone other than these managers does not affect the enforcement or non-enforcement of the policy against these plaintiffs.

Update: DOJ filed a response to a notice of supplemental authority on Terkel in the District of the District of Columbia, arguing, in part, that the Terkel judgment does not extend beyond those plaintiffs and does not prohibit enforcement of the policy against others, including the plaintiffs in the D.C. case (which includes the Alabama Association of Realtors). (H/T: Josh Blackman).

Second Update: DOJ announced an appeal in Terkel with a press release stating: "The decision, however, does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect."

The Court avoided universality in cases challenging Trump Administration policies, because the majority declared the ban valid in the cases in which universality was most central, notably the travel ban. Justices Thomas and Gorsuch have been unequivocal that the judgment in a case cannot extend beyond the parties. It will be interesting to see what they do with a Biden Administration policy that offends their pre-New Deal constitutional sensibilities.

Posted by Howard Wasserman on February 27, 2021 at 05:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, February 24, 2021

COVID defeats free speech and the national anthemm (Update)

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Update: FIRE, PEN America, and the National Coalition Against Censorship sent letters to the schools, urging them to resist the calls to stop the athletes from protesting. The letters address, and reject, the legislators' argument that athletes are "ambassadors" for the university and thus speaking on its behalf. It seems to me this is key--if the athletes are in the same position as ordinary students, this is an easy case.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Thursday, February 11, 2021

You can't pay me to play the Star Spangled Banner

I acknowledge that one drawback to the model of judicial departmentalism I have been pushing is that it allows craven officials to do absurd things for show--enacting and enforcing laws that they know will be declared invalid in court, but happy for the opportunity to score cheap political points. The hope is that loss of qualified immunity, damages, and attorney's fees would be a drag on the worst efforts. But those can only do so much, especially where the money does not come out of the official's pocket and a functionally one-party state (in either direction) means no political consequences.

Case in point: Texas Lt. Governor Dan Patrick announced the "Star Spangled Banner Protection Act," which would require the playing of the national anthem at all events receiving public funding. The proposal responds to the Dallas Mavericks not playing the anthem in empty arenas this season. Something can be a zombie law upon enactment--it merely has to be obviously DOA in a judicial proceeding that must abide by judicial understandings of the First Amendment.

This law, if enacted, qualifies. SCOTUS held that the government cannot condition funds on the recipient engaging in speech that is not part of activities the government is attempting to fund. Whatever public funds Texas gives the Mavericks or their arena are not tied to a government program of, for example, promoting patriotism. That makes this bill a blatant attempt to "leverage funding to regulate speech" to achieve what the First Amendment prohibits through direct regulation. The courts (if not all government officials) understand that the First Amendment prohibits government from compelling private actors to sponsor or participate in patriotic rituals. It should follow that they cannot leverage funding to compel such patriotic rituals. This is not even close.

The law also would be overbroad. Most businesses get state subsidies and other benefits. And what are "subsidies"-- police protection for an event?

Finally, I wonder if Patrick would be ok with the following: "The Racism Prevention Act," requiring all businesses receiving state funding to conduct anti-racism awareness workshops relying exclusively on the work of Ibram X. Kendi and Robin D'Angelo. And if not, draw a content-neutral distinction between this law and his zombie.

Posted by Howard Wasserman on February 11, 2021 at 03:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Monday, February 08, 2021

Campus speech (Updated)

This story--a pharmacy grad student suing University of Tennessee after it voted to expel her over sexually suggestive and vulgar, but unquestionably protected, social-media posts (the expulsion was rescinded by the dean)--captures everything that is problematic and misunderstood about attempts to regulate speech on campus.

• The university went after an African-American woman who graduated from University of Chicago and, in her words, "dominated her class," asked a lot of questions, and was a target of colleague complaints on social media. Just as Wisconsin prosecuted an assault by African-Americans against a white victim under its hate-crimes law. Just saying.

• An expert on higher-education law says, "'If someone is shouting in a classroom, you have the right to control the time, place and manner,' he said. 'When they are shouting on Twitter, is it their space or yours?'" This is stupid. First, the comparison is not between Twitter and the classroom; no one believes the classroom is a speech zone or anything other than the professor's space, and a student is punished regardless of what they shout. The comparison is between Twitter and the public spaces on campus opened up for speech; they are the students' spaces, shouting is permitted, and a public university cannot punish some shouting but not other shouting.

Plus, the woman was not shouting. She was posing for non-naked pictures and reciting lyrics. That becomes "shouting" only if you object to the content.

• The story kind of goes off the rails with a detour into Tinker and the Mahanoy case ("Fuck cheer") that SCOTUS will hear later this term. The rules for speech in secondary schools do not apply to college students on college campuses--adults, living in a self-contained "city" that is more than classrooms. There is a reason universities lose most of these speech-code cases, while high schools tend to win them. Discussing both in the same article confuses that issue.

• I am curious about the student's lawsuit. She was not expelled, so she cannot get an injunction for reinstatement or damages from her expulsion. Essentially, she is challenging the investigation that caused her emotional discomfort and distraction and that forced her to hire an attorney. Can a student recover when a public university takes steps to punish on constitutionally violative grounds, even if it does not complete the punishment? Does the university have any power to look into the issues to see if they are protected? Or must the university get one look, say obviously protected, and stop in its tracks? How far can an inquiry go before it becomes a violation? Interesting theory at work.

By the way, UT has been embroiled in a multi-year dispute over whether students can hold an annual "safe sex week." So we are not exactly enrolled in a bastion of free expression and academic freedom.

Update: Here is the Complaint; it makes a bit more sense. The school sought to sanction the woman for violating "professionalism standards" built into the school's academic policies, although stated nowhere in writing. That is a cute attempt at a work-around: "You are not violating public-school policies, but standards of the profession into which you are about to enter." She seeks an injunction prohibiting future enforcement of these unknown, vague, and overbroad "professionalism policies," claiming that she is self-censoring and has reason to fear future enforcement while she remains in school; that makes sense. I remain unsold on the damages theory. She was subject to an intermediate sanction for prior speech--she was made to write a letter about why her speech was bad and then self-censored in the lead-up to the more recent enforcement effort--that may warrant damage. But she seems to be claiming damages for the investigation and proposed expulsion (overruled by the dean) under an invalid standard. As stated above, I am trying to find a theory or limiting principle for how long an investigation can go before it becomes a First Amendment violation. At the very least, it seems to run headlong into qualified immunity and it not being clearly established that the policy is vague.

Posted by Howard Wasserman on February 8, 2021 at 10:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, January 29, 2021

Circuit split on public officials' Twitter accounts

A divided Eighth Circuit held that a state legislator did not act under color in blocking people from her Twitter account. She started the account as a candidate and used it primarily for tweets supporting her reelection and explaining why she is the right person for the office, including tweets criticizing her opponent for not placing her hand over her heart during the Pledge of Allegiance. That some tweets promoted her legislative achievements did not overcome the candidate focus, even if speaking with constituents can qualify as action under color. Judge Kelly dissented.

The question of how to treat "public communication" may prove a pivotal issue on these questions of social media and state action. All elected officials communicate with the public and promote their official work with an eye towards reelection and showing why their official work makes them the "right person for the job." But they also communicate with the public and promote their official work because they represent the public and are expected to notify the public of what is being done on their behalf. And so they want the public to keep them in office because they are doing so well on their behalf. I do not see how to draw a sharp line between candidate and official, especially for legislators, especially as the system involves into a perpetual campaign.

I also wonder why the case is not moot, as is Knight v. Trump. The legislator deleted her Twitter account in 2019. So a claim for an injunction seeking to be allowed onto the legislator's Twitter site is not alive if that Twitter site no longer exists. The opinion does not say if the plaintiff sought damages. Or perhaps there is some kind of capable-of-repetition argument--that the official may at some point return to social media. [Update: Or not perhaps not moot because of voluntary cessation--she could reopen her Twitter account at any time].

Posted by Howard Wasserman on January 29, 2021 at 09:03 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Tuesday, January 26, 2021

Universal injunctions return to the Fifth Circuit

That did not take long, this time over the new "pause" on deportations. Plus, Judge Tipton did not cite me as among the scholars who have criticized these injunctions or urged different nomenclature. It remains to be seen whether SCOTUS continues to use the shadow docket to show its distaste for universal injunctions as it did during the Trump Administration.

Posted by Howard Wasserman on January 26, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 20, 2021

Maybe the executive is not so unitary (Updated)

Twelve years ago almost to the minute, I wondered about the four-minute gap between noon and Barack Obama taking the oath of office and whether he was President in the intervening four minutes. That they screwed up the oath and redid it lent further oxygen to the question of when a new presidential term begins--at noon on January 20th or upon taking the oath of office.

Today we had the opposite: Biden took the oath at 11:53 (ed: 11:48), twelve minutes before the Constitution says Trump's term ended and the term of his successor began, after which the Chief said, "Congratulations, Mr. President." The prevailing view in 2009 was that he took office at noon and the oath was something between a formality and a precondition to executing the powers of the office held. And I suppose there is nothing inherently wrong with taking an oath prior to taking office. So Biden took the oath and for seven minutes Trump remained President. But then was the Chief wrong to congratulate "Mr. President?"

On the other hand, if the oath makes someone President, then in 2009 we had no President for four minutes (or Biden, who had been sworn as VP at 11:58, was acting president for four minutes). And today we had two Presidents for about seven ten minutes. Too bad Trump did not administer the pardon to Jeanine Pirro's ex at 11:58.

Does anyone know why they altered the timing of the ceremony, to administer the oath ahead of noon?

Updated: The Washington Post offers a brief story with commentary from Jonathan Turley (GW) and Bobby Chesney (Texas). Bobby offers a good reconciliation: The oath class requires the oath "before" a person can take office, but does not explain how long before. Whether intentional, Bobby argues that doing it this way is preferable to the 2009 situation in which you create a gap in which no one is President (or no one is able to exercise the powers of the presidency).

Further Update: Someone on the Conlawprofs listserv argues that if the oath can be administered before the office is vacant, it might be validate for the President to nominate and the Senate to confirm a SCOTUS nominee before the seat becomes vacant, then hold the unsigned commission until the vacancy occurs. Same principle at work.

Posted by Howard Wasserman on January 20, 2021 at 01:24 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Tuesday, January 12, 2021

Mootness and nominal damages

The Court on Tuesday heard argument in Uzuegbunam v. Preczewski, on whether a case becomes moot if the government repeals the challenged policy but a claim for nominal damages remain. A few thoughts.

• Chief Justice Roberts hammers everyone on justiciability and merits melding into one another. But he wants to find ways to draw magical lines, rather than recognizing that they collapse into one another because they are the same thing.

• Justice Kavanaugh recognizes that the real issue here is attorney's fees. A plaintiff cannot recover attorney's fees if the government moots the case by repealing the challenged policy; the real point of the nominal damages claim is to keep the case alive through a claim for retroactive relief on which the plaintiff can prevail.

• There was no discussion of qualified immunity, which also enters this picture. If the nominal damages claim keeps the case alive, it also is subject to an immunity defense. This helps the government avoid paying $ 1, which avoids attorney's fees.

• The case is a weird vehicle for this issue, because the challenged policy was never enforced against one of the plaintiffs prior to its repeal. The "injury" the plaintiff claims is for the past chilling effect of wanting to speak but not feeling able to for fear of enforcement. Chilling effect can be a basis for standing for prospective relief; it is strange to see it as a past injury.

• There was some confusion among a number of concepts--prospective v. retroactive relief, compensatory v. non-compensatory remedies, claims v. remedies. It seems to me the answer to this case is that a plaintiff can bring a claim for a past injury caused by the policy while the policy was in effect--a retroactive injury seeking a retroactive remedy. Having proved past injury, the question is one of remedy--actual damages (however small) or nominal damages in their stead. Counsel for the government seemed to acknowledge the last pairing, insisting that nominal damages is not a claim but a remedy once that claim has been proven. But that should cut against the government's position.

• The case highlights the problems with Buckhannon, in which the Court rejected the "catalyst theory" of attorney's fees, under which a plaintiff prevails if the lawsuit is the catalyst for the government repealing the challenged policy. A plaintiff does not prevail when the policy change is not reduced to a judgment. At the same time, Buckhannon left this case open--whether a claim for retroactive relief can keep the case, and thus fees, alive.

But counsel for Georgia made this point in his closing:

[T]he way that this case was resolved is a good thing. Litigation prompted college officials to review their policies, and just ten weeks later to revise them in a way that maximizes and respected First Amendment rights on campus, not just for Petitioners but for all students. And it even led to an enduring state-wide policy change for every public college in Georgia. That kind of early out-of-court resolution should be encouraged.

Except such a resolution requires that plaintiffs are able to obtain counsel to bring litigation. This is why Congress provides for fees in civil rights cases--to incentivize counsel to bring these cases. But there will be no such change if individuals are unable to bring litigation because they are unable to get counsel because counsel knows that the "good" solution for the government will be to repeal its policy, preempting fees, and thus will not agree to bring the case.

My best guess is that the Court reverses, at least where the plaintiff has suffered past harm from enforcement. But I am always wrong.

Posted by Howard Wasserman on January 12, 2021 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, January 11, 2021

Universal universality (Updated)

The Fourth Circuit affirmed a universal injunction (mistakenly styled nationwide) prohibiting enforcement of the federal policy requiring state and local affirmative consent to accept refugees. The injunction protected six non-party resettlement agencies, in addition to the three plaintiffs.

In affirming as to scope, the court relied on Trump v. IRAP (the pre-Hawaii order that stayed various parts of the travel-ban injunctions) for the proposition that "a nationwide injunction may be appropriate when the government relies on a 'categorical policy,' and when the facts would not require different relief for others similarly situated to the plaintiff." This policy "by its nature" affects all immigrants assigned to all agencies operating throughout the country and a particularized injunction would produce "inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect."

One problem with the "universality only in certain cases where appropriate" is that any standards for determining when universality is appropriate collapse to allowing it in every case. This captures that. All policies are categorical and all policies by their nature affect all persons subject to those policies. All policies apply the same to similarly situated non-parties--that is what makes them similarly situated and also what would allow them to form a 23(b)(2) class, which the plaintiffs chose not to do here. Moreover, "inequitable treatment" follows in all cases in which a party obtains a non-class injunction--those who obtained the injunction enjoy a legal protection that those who did not obtain the injunction do not enjoy. That is the point and effect of obtaining an injunction.

If that is the standard, every injunction must be universal.

Update: Sam Bray reaches the same conclusion.

Posted by Howard Wasserman on January 11, 2021 at 11:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Saturday, January 09, 2021

Trump, Twitter, mootness, and attorney's fees

Josh Blackman raises a question about the government's cert petition in Trump v. Knight Foundation, holding that the President violated the First Amendment by blocking people on Twitter: Does the ban moot the case and will the Court issue a Munsingwear order vacating and remanding with instructions to vacate the judgment. But Josh's question is, so to speak, moot. The case always was going to become moot at noon on January 20 when Trump left office and any federal action disappeared. It is conceivable the Court waited on the case for that reason--had Trump won reelection, the case would have remained alive for another four years; when he lost, it was a matter of waiting out the extra few months.

A secondary question is whether the plaintiffs will be able to get attorney's fees under the EAJA if and when the judgment is vacated. Courts and cases are all over the map on whether a plaintiff is a prevailing party if it obtains interim relief that is dissolved on mootness grounds on appeal. Courts look to a number of factors, including whether the interim relief changed the defendant's conduct and gave the plaintiff what it asked for while it lasted and the length of time the interim relief was in place. Under that, Knight should be a prevailing party. The district court issued its judgment in May 2018 and the Second Circuit affirmed in 2019, meaning the plaintiffs have gotten what they wanted--being unblocked and able to read the President's tweets--for more than two years. More importantly, the plaintiff's desire and constitutional entitlement to continue doing so was always time-limited, ending whenever Trump's term ended (January 20 2025, at the latest). That sounds like a meaningful change in the relationship between the parties for the precise period the plaintiffs wanted.

Also relevant is that the district court granted declaratory, but not injunctive, relief against Trump (the aide who run his Twitter account was enjoined). Courts are again mixed as to whether a declaratory judgment alone is sufficient to make a plaintiff a prevailing party, especially where other relief is denied. Here, it should be relevant that a DJ is the only remedy the plaintiff could get from Trump, since courts will not, and perhaps cannot, enjoin the President (as opposed to All the President's Men).

Posted by Howard Wasserman on January 9, 2021 at 06:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, January 08, 2021

July ('74): District of Columbia

Reports are that Nancy Pelosi spoke with Joint Chiefs Chair Mark Milley about "precautions" against Trump starting a war. We are in July 1974 territory when military and DOD officials were informally telling one another to ignore potentially crazy orders from President Nixon, who was drinking heavily, sensing that the end was near, and a threat to lash out. Of course, Nixon was an intelligent person with some baseline respect for the constitutional order (yes, he committed crimes--there are obvious degrees).

We are not so fortunate at the moment.

Posted by Howard Wasserman on January 8, 2021 at 12:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Here are the only segments that might come close:

1)

All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.

Our country has had enough. We will not take it anymore, and that is what this is all about.

And to use a favorite term that all of you people really came up with, we will stop the steal.

This is from the beginning of the speech. It is hard to see this as other than hyperbole.

2)

We will not let them silence your voices. We're not going to let it happen.

Not going to let it happen.

[This was followed by a chant of "Fight for Trump," for which Trump thanked the crowd].

He is urging the crowd to not let the silencing of their voices happen, not to engage in unlawful action.

3)

[Speaking of Pence doing the non-thing of sending the votes back to the states] That takes courage, and then we are stuck with a president who lost the election by a lot, and we have to live with that for four more years. We're just not going to let that happen.

This could be read as urging people to not to let happen the four years of the Biden Administration. But, again, allowance must be made for rhetoric and hyperbole.

4)

We're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol--

And we're going to cheer on our brave senators and congressmen and women and we're probably not going to be cheering so much for some of them.

Because you'll never take back our country with weakness. You have to show strength and you have to be strong.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time.

This was the segment that has been making the rounds in the media and that I quoted in my prior post. Note that last paragraph specifically speaks of marching to "peacefully and patriotically make your voices heard" after calling for strength. In rejecting tort claims against Trump arising from a 2016 rally, the Sixth Circuit emphasized that Trump followed his call to get the protester out, the alleged incitement to assault, by saying "don't hurt him" as mitigating the meaning of the words and the intent. Similarly, the call for strength is tempered by the call to do it peacefully. That call for peacefulness is perhaps tempered the other way by the subsequent insistence that the country has been "under siege"--peacefully talking is not the "strong" response when one is under siege.

In any event, again, fiery rhetoric is allowed.  Also, in terms of imminence, the above occurred less than 1/5 of the way into the speech. So does that mitigate the intent or likelihood of encouraging imminent lawlessness if he then keeps talking? Eugene Debs spoke for something like three hours in Canton.

5) This is the final 90 seconds-or-so:

I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to--we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Again, not encouraging or hinting at lawlessness. "Fight like hell" lest we no longer have a country is troubling, but in context does not suggest fighting in the physical or unlawful sense as opposed to be speaking out--again, rhetorical hyperbole is fair game. Trump is talking about marching, not storming the Capitol. Urging people to give members of Congress "pride and boldness" could mean peacefully speaking or protesting in support of what the crowd wants and hopes they will do.

This analysis goes to a possible post-January 20 (or even post-January 12) criminal prosecution. It is a separate question whether this constitutionally protected speech could be the basis for impeachment-and-conviction. Josh Blackman and Seth Tillman argue that it cannot.

Without getting too far into the point (this post is already too long), otherwise-protected speech can be the type of abuse of office that impeachment exists to punish. As Volokh argued, the view that Trump's speech was unprotected comes from a gut feeling that POTUS should not engage in such talk, regardless of the Brandenburg line. As he outs it, "Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant." Impeachment exists to remedy those failures. Update: Jonathan Adler and Ilya Somin agree that the First Amendment is not a bar to impeachment, grounded in the broader view that impeachable conduct need not be criminal.

Posted by Howard Wasserman on January 8, 2021 at 11:05 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Monday, January 04, 2021

Court smacks down dumbest election lawsuit and its lawyers

The dumbest election lawsuit was the one in the District of D.C. against Pence, the Electoral College, Congress, and a bunch of state officials, alleging that Article II requires that a state legislature certify the results post-election so any electors appointed without that certification (i.e., all 538) were invalid and could not cast lawful votes. District Judge Boasberg initially gave the plaintiffs busywork of providing proof of service on all defendants, including the Electoral College (which, of course, is not a thing that can be sued). When no such service occurred after twelve days, the court declined to wait any longer and denied the motion for preliminary injunction.

And Boasberg was not messing around. The suit would have been "risible were its target not so grave: the undermining of a democratic electionfor President of the United States." Plaintiffs’ "theory that all of these laws are unconstitutional and that the Court should instead require state legislatures themselves to certify every Presidential election lies somewhere between a willful misreading of the Constitution and fantasy." And this is the closer:

Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendanteven after reminder by the Court in its Minute Orderrenders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engagei n such gamesmanship or symbolic political gestures.As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

Many have noted the absence of sanctions in these cases, despite all being patently sanctionable. One reason may be the details of FRCP 11 and the incentives of parties and courts. Rule 11(c) imposes a safe harbor--before seeking sanctions, a party must notify the opposing party of its intent to seek sanctions (by serving, without filing, a copy of the proposed motion for sanctions) and give the party 21 days to cure the sanctionable conduct, as by withdrawing or amending the challenged paper. But the defendants in these cases want these cases to go away, not to drag the cases out by giving the plaintiffs time to cure. And most courts have held that the safe harbor means that sanctions cannot be sought after dismissal, so post-dismissal sanctions are not possible. Meanwhile, judges have the same interest as defendants in making these cases go away and no desire to keep them around with additional rounds of satellite litigation.

This was was unique in several respects, so it makes sense that it might trigger sanctions activity. Because plaintiffs never bothered serving anyone, the case never reached an adversarial posture; the judge was on his own own. And the theory and construction of the case was uniquely loony. That combination raised the suspicion, more than the other Kraken cases, that this was a political show and nothing more.

One more thing, because it is something I expect to see in the coming months. The plaintiffs alleged that they had been "disenfranchised," which Boasberg said was not true since they had voted and their votes counted. But "disenfranchisement" means something different in the minds of these groups of voters and advocates. The "franchise" means not that I was able to vote or that my vote was counted, but that I was able to elect the candidate of my choosing; I am disenfranchised if my candidate loses. This framing is not new. Many of the early Tea Party rallies in 2009 and 2010 were covered as complaints of disenfranchisement--the protesters were disenfranchised because the person they did not vote for had one and he was pursuing policies they did not favor. That is certainly grounds for protest; it is not disenfranchisement and should not be accepted as such.

Posted by Howard Wasserman on January 4, 2021 at 03:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Sunday, January 03, 2021

Political parties and notes on a broken process

A jumble of thoughts on the role of political parties in presidential selection and what happens next.

The Framers considered but rejected legislative selection of the executive, fearing that a president chosen by Congress would not be sufficiently independent of the body to which he owed his office. That is why the states were empowered to decide the methods of choosing electors and why the electors would act on their own. The House contingent election was a necessary fail-safe. At the same time, some believed that fail-safe would become the norm, at least once George Washington left the scene. They doubted one figure could attain sufficient national recognition and support to achieve an EC majority, especially in a race among multiple candidates representing different regions and interests. These figures expected the EC to become a screening mechanism to produce two or three candidates, from whom the House would select the President.

The unforeseen (or unaddressed) development of political parties and settlement into a two-party system allowed the Electoral College (as tweaked by the Twelfth Amendment) to function as a true selection mechanism, making the contingent election an unnecessary vestige. The one post-Washington election that operated as the EC was designed on paper was 1824--and it produced the contingent election that some Framers expected or feared. There were no competing political parties and multiple candidates represented different regions and interests within that party, none of whom had the national stature to gain a majority. Otherwise, the competition between two major national parties ensured sufficient support nationwide support for one candidate, absent a breakdown in state processes (as happened in 1876 but has not happened since, including this year, conspiratorial fantasies aside). The congressional role became ministerial and ceremonial--count the votes and confirm the winner of state-controlled processes.

The 140+ House Republicans and dozen Senate Republicans planning on making futile-but-dangerous mischief on Wednesday have clothed themselves in a vision in which Congress plays a substantive role in checking the limits of the EC and choosing the President. Ted Cruz has pointed to 1876 and the congressional commission; historical ignorance aside, Cruz argues that Congress can and should exercise meaningful power in looking under the hood of state and EC processes--the House as the ultimate arbiter of the election. Never mind that this vision has never controlled in 240 years of elections. On the other hand, the two-party system means that a congressionally selected President would not be dependent on Congress as the Frames feared when they rejected legislative selection. Party identification unifies the branches, so congressional Republicans support rather than attempt to control a Republican executive whom they chose. Another example of the Levinson-Pildes separation-of-parties-not-powers thesis.

The maneuvering will not give Trump another term in office nor stop Biden's inauguration on January 20th.* It further undermines Biden's presidency. And it lends further cover to the inevitable refusal of all Senate Republicans--not only these twelve, but the silent Rubios and McConnells--to cooperate in any way with the Biden Administration.

[*] The insistence by Peter Navarro on Fox News that Congress could move the inauguration is laughable. But it reflects the moving goalposts. Several people insisted that there was no reason litigation had to end by December 14, since that date did not appear in the Constitution; the implicit argument is that statutory deadlines are meaningless. Apparently, so are constitutional deadlines. Although Navarro may be correct that Congress could move the Inauguration as an event. But that will not keep Trump in office past noon on the 20th.

So what happens after the play-acting fails? Former Republican political consultant Steve Schmidt argues that January 6 will mark the beginning of the end of the modern Republican Party, as the 1854 Kansas-Nebraska Act marked the end of the Whig Party. Both brought to the fore fundamental divides that drove the party apart. As he puts it, the GOP's "Pro Democracy faction and Autocratic factions can no more exist together then could the Whig Party hold together [t]he abolitionist with the Slave master."

I want Schmidt to be correct, but I do not believe he is. Abolitionists and supporters of slavery could not exist within the Whig Party because that fundamental philosophical divide made it impossible to agree on policies or candidates and to do the things political parties are designed to do. The anti-slavery Whigs found a home in the new Republican Party.

But the GOP's factions can co-exist when the smoke clears because the divide is not so philosophical. They will unite around knee-capping Biden (again, has any President had zero judges confirmed) and retaking the House/retaining the Senate in 2022 around a platform of Biden's failure to unite the country as he promised to do. Schmidt imagines a '22 primary bloodletting (including an Ivanka Trump-Marco Rubio primary in my home state of Florida, for which I will buy popcorn and a ringside seat). But, again, GOP party identification unites the factions against the common Democratic enemy once those primaries end. GOP voters will vote for whichever candidate carries the Republican label, the  party's structural advantages means there will continue to be more Rs than Ds in both houses, and the unifying goal will be opposition to the Democrats.

And unlike 1854, there is no place for these pro-Democratic Republicans to go. They are not going to become Democrats. And there is no room in the system for a third party.

Moreover, Mitt Romney and a few others aside, I think Schmidt misidentifies the factions within the party, at least within Congress. There is not a pro-Democracy faction and an Autocratic faction. Instead, there is one windmill-tilting autocratic faction and one pragmatic faction that will not waste time on futile efforts but would be "fine with this effort actually succeeding" and likely would not "refrain[] from supporting it if they thought it could succeed." McConnell is not using or threatening to use any of the tools at his disposal to pull these Cruz, Hawley, et.al in line. Perhaps he knows it cannot work. More likely, he knows that he and the rest of the party benefit from these failed efforts. It is enough to shut up and reap the benefits.

I believe Mike Sacks has it right: "They’re playacting an attempt to overthrow democracy because they think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." Sack was talking about Gohmert, Cruz, Hawley, et al. But it is true of every member of the party's congressional caucus.

Posted by Howard Wasserman on January 3, 2021 at 10:35 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (15)

Thursday, December 24, 2020

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)

Friday, December 18, 2020

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

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)

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)

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)

Monday, December 07, 2020

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)

Wednesday, December 02, 2020

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)

Saturday, November 28, 2020

More state universality (Updated)

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

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

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

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

Evidentiary problems (Updated Again)

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

The difference is evidence.

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

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

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

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

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

Second Update: Will Cain on Fox says it aloud: "There may not be enough evidence for a court system, but there should be enough evidence for state legislators to change their electors." Because Republican legislators do not need any evidence beyond "because it's true."

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

Monday, November 23, 2020

Paying for vaccination and the First Amendment

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

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

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

Sunday, November 22, 2020

Trump campaign loses big in Pennsylvania (Updated)

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

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

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

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

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

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

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

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

Sunday, October 25, 2020

"Zombie statutes," non-universality, and judicial departmentalism

The opening paragraph of this Fifth Circuit opinion by Judge Costa accurately describes judicial review (H/T: Josh Blackman):

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA.L.REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example. See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH.ST.L.REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO.L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

The opinion deals with what Costa calls "zombie statutes"--laws in one state that remain on the books but are unenforceable (at least judicially, more on that below) in light of SCOTUS precedent declaring an identical law from a different state invalid. The challenge here was to a Houston ordinance requiring initiative/petition circulators to be registered voters; SCOTUS in Buckley v. American Constitutional Law Foundation declared an identical Colorado law to violate the First Amendment. The Fifth Circuit held that the plaintiffs had standing and that the case was not moot--there was sufficient threat of enforcement despite Buckley and the city's addition of an Editor's Note to its code--stating that it would accept petitions from non-registered voters and provided a form for such petitions--was not sufficient to moot the case.

This "zombie law" concept is interesting. I wish I had it in front of me (or had thought of the term myself) when writing about the link between non-universality and judicial departmentalism. Because those concepts inform what makes a zombie law.

Because of non-universality, the concept should not be limited to the situation at hand--State B's law is a zombie because of a decision involving State A's law. State B's law can be a zombie because of a decision involving that law as to non-parties to the prior litigation. It also means we could have federal zombie laws. The point is the same in all--the prior judgment spoke to the challenged law and the involved party, not to any other law or any other party.

Because of judicial departmentalism, it is arguably unfair to call any law a zombie law. Because if the government believes, in its independent judgment, that the law is constitutionally valid, it acts within the full scope of its constitutional power in enacting or enforcing it, regardless of contrary precedent. In that sense, the law is alive and enforceable. On the other hand, maybe zombie is the right term because the laws are undead--they are alive in remaining on the books and in remaining enforceable by a departmentalism government, but the actual or threatened enforcement is DOA in court, where SCOTUS precedent binds and determines the outcome. On a third hand, maybe we need distinct terms to capture distinct concepts--law on the books but no intention to enforce v. law on the books with intention to enforce--rather than lumping everything as a zombie.

Posted by Howard Wasserman on October 25, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Saturday, October 24, 2020

Declaratory judgment of protected speech

ElDfrdHUcAEQYGkThe Lincoln Project erected these billboards in Times Square, suggesting lack of concern about COVID by Ivanka Trump and Jared Kushner. Attorney Marc Kasowitz sent the Lincoln Project a two-paragraph letter stating the billboards are "an outrageous and shameful libel" and that if they "are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages."

Needless to say, the statements on the billboard are not libelous, regardless of whether they are outrageous or shameful. And it is doubtful that Javanka will recover compensatory and punitive damages, let alone enormous ones. The billboards imply callous disregard for COVID deaths, which is non-actionable opinion. The quotation from Jared comes from a Vanity Fair article about the administration's COVID response. The full statement is that New York Governor Andrew Cuomo did not do enough to get PPE, so "his people are going to suffer and that's their problem." It is at least ambiguous whether "their" refers to Cuomo or "his people" (meaning New Yorkers); so even if it leaves a false impression, it does not rise to actual malice. The juxtaposition of their photos with body bags and death tolls is hyperbole. And, again, these are government officials.

Anyway, this letter is no different from the many bumptious letters that President Trump and other Republicans send to their human and bovine critics over plainly protected speech. They often give attorneys a chance to wave the banner of the First Amendment in their responses. But Popehat views these letters as a genuine threat to free speech when in furtherance of "abusively frivolous" defamation claims (which this letter is). So he offers a proposal:  The "'That's Not Defamation' Declaratory Relief Act:"

Under the statute, the Lincoln Project could send a demand to Kasowitz and the Kushners to withdraw the threat. If they don’t withdraw the threat, Lincoln Project can sue under the statute seeking a declaration that the speech is not defamatory. They can bring the equivalent of an anti-SLAPP motion immediately. If they prevail, they get an order that the speech is not defamatory ....AND they get attorney fees collectible from (this is key) either the Kushners or Kasowitz. If the judge finds the threat was frivolous, he or she can impose penalties on top of the fees. Would make legal threats have consequences.

White views attorneys as a big part of the problem. We expect people who believe they have been wronged to be angry and to lash out. We perhaps should expect more restraint from public officials and in the past we got it, but the human reaction is understandable. Attorneys are supposed to understand the law, to recognize the difference between hurt feelings and actionable defamation, and to talk their clients off the ledge, especially from throwing around money and power. An attorney who sends a letter such as this does the opposite; indeed, he exacerbates those money-and-power imbalances.

A declaratory judgment of protectedness is theoretically available under the current Declaratory Judgment Act, but defendants do not avail themselves of the option. Likely because most such letters are empty threats (Donald Trump has yet to sue over 2016 reporting of sexual-assault allegations) and the defendant's prefer avoid litigation, especially because attorney's fees are not recoverable under the current law. White's proposal makes the attorney demand part of the game.

There is an interesting Fed Courts angle to this. Under Skelly Oil, an action seeking a declaration that speech is constitutionally protected/non-defamatory does not arise under federal law, because the underlying enforcement action (a defamation suit) would not arise under federal law. It could only reach federal court on diversity. So if White wants these cases in federal court, the statute should include a jurisdictional grant that does not rely on the Well Pleaded Complaint Rule.

Posted by Howard Wasserman on October 24, 2020 at 12:51 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Wednesday, October 07, 2020

Impementing SCOTUS term limits

I missed the introduction of this bill last week, which Eric Segall discusses. It provides for appointments in the first and third year of a presidential term. It also provides that the Senate shall be deemed to have waived its advice-and-consent authority if it does not act on a nomination within 120 days of the appointment and the nominee shall be confirmed. This is cute, designed to prevent the McConnell move of sitting on a nomination, although it does not stop a determined Senate majority of one party from blocking everyone a President of the other party nominates. I have seen other proposals for a statute or Senate rule that failure to confirm within a certain time shall be deemed confirmation.

The bill does not make the Balkin move of giving senior justices specific SCOTUS-related responsibilities. But current Justices are not required to retire from "regular active service," so there are no problems of changing the tenure of sitting Justices. But appointments will begin upon passage, with new appointees serving as active Justices for 18 years. Presumably, the Court will expand until current Justices retire.

But this creates some strange Court dynamics as the new system takes effect. Justice Srinivasan appointed under this law in 2021 would be active until 2039, then forced into senior service. Meanwhile, in 2039, six current Justices (seven if you include Barrett) would be in their early 80s or younger and likely still wanting to remain active. A big chunk of the current Court would form a "core" that might continue for another 30 years, while an "outer" Court changes around them. The demand for incrementalism due to non-retroactivity creates some difficulties.

Posted by Howard Wasserman on October 7, 2020 at 07:05 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Tuesday, October 06, 2020

Balkin solves the 18-year conundrum

Proponents of 18-year terms with regularized appointments biennial conflict over a procedural problem: Whether it can be done by statute without changing the nature of the position for current justices. Requiring a Justice to assume "senior" status and changing the nature of the job--no longer hearing SCOTUS cases--is arguably inconsistent with the life tenure that came with the original appointment.

Jack Balkin has solved the problem with an expansion of past proposals and his argument in his new book. Under Balkin's proposal, all Justices remain active until they leave the Court. Instead, Congress changes how the Court hears cases. Original-jurisdiction cases are heard en banc and all Justices decide cert. petitions.  But appellate-jurisdiction cases (i.e., all but one or two cases each year) are heard by a panel consisting of the nine junior-most Justices. More-senior Justices fill-in (in reverse seniority) if there is a recusal or vacancy among the 9-Justice panel and can sit on courts of appeals.

There should be no question that this can be done through ordinary legislation, because it does not change the job description. Rather, it changes the responsibilities of each Justice, akin to requiring circuit-riding that dates to the founding, and how the Court hears cases, unquestionably within Congress' power to structure and organize the Court.

Posted by Howard Wasserman on October 6, 2020 at 12:31 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Monday, October 05, 2020

Thomas and Alito defend Kim Davis

SCOTUS denied cert in Davis v. Ermold, which held that Kim Davis did not enjoy qualified immunity in refusing to issue marriage licenses to same-sex couples because it offends her religious beliefs. Justice Thomas, joined by Justice Alito, issued a cri du ceour respecting the denial of cert., lambasting Obergfell as creating a "novel constitutional right" having "ruinous consequences for religious liberty."

Three things.

First, Thomas proceeds as if Smith no longer is good law and that the First Amendment demands an opt-out from a generally applicable law or satisfaction of strict scrutiny. He cites Smith in a footnote, but to argue that Obergefell is more illegitimate because not done through the legislative process. This seems disingenuous. I doubt that if Kentucky had legalized SSM by statute with no religious accommodation, Thomas would be more willing to accept those ruinous consequences for religious liberty.

Second, I am waiting for a good argument for why having issue licenses to same-sex couples is more a violation of religious liberty than having to issue licenses to inter-racial couples or inter-faith couples. All can be, and have been, subject to religiously based objections by some people. Would Thomas be staking out this position if someone denied a marriage license to Noah Cohen and Mary-Margaret O'Reilly?

Third, whatever one believes about a private baker or photographer, it should not extend to a government official performing her official functions. Her job as a public employee is to carry out the law. If that law offends her religious or other sensibilities, then she should quit. We would not allow someone to enlist in the Army and then refuse to fight in a war; we would not allow an atheist police officer to refuse to conduct traffic at a church. There is no reason to allow a clerk to refuse to issue a marriage license.

Posted by Howard Wasserman on October 5, 2020 at 02:45 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, September 27, 2020

Proving anti-Jewish discrimination

Eugene Volokh unearths a 10-year-old S.D.N.Y. decision in an action alleging co-workers in a government job referred to him as a "dumb Jew" or "fucking Jew."

Eugene focuses on one defense--that the plaintiff was not Jewish because his mother was not Jewish, he had not converted, and he was not practicing. The court rejected the argument, deeming it not the court's place to define who is Jewish and finding it sufficient that the plaintiff defined himself as being of Jewish "heritage," even if not practicing. One of Eugene's commentators nominates this as the new definition of chutzpah--calling someone a "fucking Jew," then arguing that he is not Jewish.

The rest of the decision is interesting apart from the chutzpah. The court denied summary judgment on a Title VII claim against the city. But the court dismissed a § 1981 claim, because the plaintiff alleged religious rather than racial discrimination. This seems like a pleading error. Courts will treat Judaism as more than a religion for § 1981 purposes. And that would have been an appropriate approach in this case, where the plaintiff did not practice Judaism and focused more on his "heritage" than his religion.

The court  granted summary judgment on claims against several harassing co-workers. Although there was evidence the co-workers had created a hostile religious environment, they were not state actors because they were not his supervisors. This is incoherent. The under-color question should be whether the defendant used his official position to engage in unconstitutional conduct and whether that position made the unconstitutional conduct possible. That should be satisfied here--the unconstitutional conduct is the religiously motivated harassment and they could engage in that harassment only because of their official positions in government. Harassment does not require a supervisory relationship, so it should be irrelevant to the under-color/state-action analysis.

Posted by Howard Wasserman on September 27, 2020 at 01:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 22, 2020

Jamelle Bouie misunderstands judicial supremacy and other comments

Jamelle Bouie calls on Democrats to reject judicial supremacy. Unfortunately, he does not seem to understand what judicial supremacy is or what it means to fight it. Instead, he conflates challenges to judicial supremacy with court reform. He offers the historical example* of Jeffersonians undoing the Midnight Judges Act--eliminating judgeships, restoring a SCOTUS seat, and restoring circuit riding. But none of that had anything to do with judicial supremacy. That was a dispute between competing parties in the political process about the structure of the federal courts, which everyone agrees was and remains within congressional control. It has nothing to do with who, if anyone, gets the final word on constitutional meaning. And the Court had no say in either the original act or the Jeffersonian response. One can support court packing or other  proposals for reforming the structure of the courts while believing in judicial supremacy.

[*] Bouie's other example is Lincoln's First Inaugural, where he suggests ignoring Dred Scot as precedent as to the validity of the Missouri Compromise, while recognizing that he is stuck with the judgment in that case. This envisions judicial departmentalism--bound by the judgment, free to ignore precedent.

Kevin Drum comments on Bouie's column and understands the issues better, arguing for jurisdiction stripping as the answer. This hits on something I did not consider or address in my work on judicial departmentalism. Departmentalism collapses into judicial supremacy because many (most?) constitutional questions devolve into judicial ones, producing a court judgment that the executive must enforce and obey, on pain of contempt. The solution--for those who want one--is stripping the courts of jurisdiction to decide some constitutional issues. But not because it eliminates courts' power to make new precedent--since the the other branches can ignore that. But because it eliminates courts' power to produce new judgments, which the other branches cannot ignore.

Posted by Howard Wasserman on September 22, 2020 at 10:23 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Segall Court and a stopping point to Court-packing

As I was completing my prior post on the time passing for Eric Segall's eight-person partisan-divide Court, I thought of a way to save that plan and to put a check on infinite tit-for-tat Court expansion through mutual disarmament: Expand the Court to twelve with three Democratic appointees, then run the Segall plan with a 6-6 partisan divide.

Posted by Howard Wasserman on September 22, 2020 at 11:28 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Implementing the Carrington Plan (Updated)

With the prospect of attempted court-packing looming in the event of a President Biden and Democratic Senate, thoughts turn to alternatives involving 18-year terms and regularized appointments. The Carrington Plan, introduced in 2009, would achieve this by statute through the creation of the position of "senior justice," a Court of more than nine, but cases heard by a panel of the nine junior-most members.

The benefit of the Carrington Plan is that it could be done by statute. The 2009 version contained a sunrise provision, taking effect only with the first vacancy after passage and allowing current members to serve until death or retirement. This was to avoid constitutional objections to Congress violating Article III by changing the nature of the Justice's position--after 18 years, although still an Associate Justice, the person does not adjudicate cases. I was not, and am not, convinced by the constitutional arguments. If Congress can strip the Court of some (if not all) of its appellate jurisdiction, it can strip individual Justices of their role in exercising that jurisdiction. It is complicated and uncertain, but the constitutional problem is not obvious.

But the sunrise may be necessary to make it work across a full Court, because a President cannot make a regular biennial appointment if the junior-most Justice has not reached 18 years.

This was not the case in 2009, when Carrington and others presented the plan to Congress. Five Justices already had served 18 years and two more were close.Had it been implemented then, the Court could have turned over under the plan within 16 years: 2009 (Stevens), 2011 (Scalia), 2013 (Kennedy), 2015 (Souter*), 2017 (Thomas), 2019 (Ginsburg), 2021 (Breyer), 2023 (Roberts--who would have reached 18 years), 2025 (Alito, who gets a couple extra years on the Court). By 2025, we have an entirely new primary Court.

[*] Or Souter retires, as he did, in 2009 and everyone gets pushed back two years.

But the current Court structure prevents that clean implementation. In 2021, two Justices are beyond 18 years and four are close; those six would be replaced by 2031. But then it runs out. In 2033, the time for the next appointment, Gorsuch will have been on the Court for 16 years, two years short of the end of his term as active justice.

It would be unfortunate if the time for the best plan has passed, much as the time for Eric Segall's eight-person partisan-split Court passed in 2017.

Updated: Steven Calabresi (Northwestern) argues in The Times for a constitutional amendment and offers a solution to this problem: The eight current Justices would draw lots for the order in which their terms would end beginning in 2023, meaning some Justices may serve fewer than 18 years (e.g., if Kavanaugh drew short straw in 2023, he would serve five years). We could modify Calabresi's proposal and retain basic equity by going in reverse order through Alito Kagan, then drawing lots among Gorsuch, Kavanaugh, and Barrett in 2033. This ensures everyone serves at least 15 years, which Calabresi argues is longer than the term on other constitutional courts.

Also, note this feature of Calabresi's proposal--he is not messing around:

Failure to confirm a justice by July 1 of a president’s first or third year should lead to a salary and benefits freeze for the president and all 100 senators, and they should be confined together until a nominee has been approved. The vice president would act as president during this time and the Senate would be forbidden from taking action whatsoever on any of its calendars.

By the way, with all of this in the news, I must rethink the order of my Fed Courts class for next semester. I save jurisdiction-stripping and the issues of congressional control over the Court, including proposals for term limits and other restructuring, for last--they are highly theoretical topics that my students are better able to handle at the end of the course. The problem is that I have not gotten to this the last couple of years. But the life tenure and term limits stuff now is too central to the political discussion. I may put SCOTUS structure, including term limits, up front (the class begins with SCOTUS jurisdiction), even if jurisdiction stripping and similar issues remain at the end.

Posted by Howard Wasserman on September 22, 2020 at 11:22 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, September 04, 2020

Getting qualified immunity wrong

This letter, from the lobbyist from the Oregon Coalition of Police and Sheriffs to an Oregon legislative committee considering a host of police-reform bills. Benefit of the doubt: The author (according to his LinkedIn page) is not an attorney and he might be talking about some state tort qualified immunity doctrine  rather than § 1983 federal qualified immunity. But presuming he is talking about § 1983, this is not good.

The letter says:

• "Qualified immunity is a legal principle that applies not only to law enforcement officers, but all public employees and officials" (emphasis in original): The only legally accurate statement in here.

• "It states that a public official cannot be sued . . . so long as those actions occur legally within the scope of the public employee's official duties. Qualified immunity is never a shield for illegal activity. It is not applicable if a public employee is acting outside the scope of their responsibilities." (emphasis in original). This is so wrong, which is why I was unsure whether he was talking about a state tort defense as opposed to § 1983. But as an explanation of § 1983, it conflates "under color of law" with immunity. A public official acts under color, and subject to liability, when performing his public job responsibilities; whether immunity applies is a second and distinct question. And the argument ignores the mounting cases in which courts find that an officer, under color of law, did something unlawful (e.g., making a prisoner sit in feces for four hours or stealing property in executing a warrant) but is not liable because no prior officer did the precise thing in the precise manner within that federal circuit.

• "The purpose of Qualified Immunity is to ensure that litigation does not completely place a public employee at the mercy of litigious counterparties." Sort of. It does not protect those employees just because. It protects them so that they will do a better job of policing when they can exercise judgment free from the fear of litigation. But when the result of a doctrine is that some (many?) officers acting as if they are unchecked, that doctrine may not be serving its intended purpose.

• I will not quote the whole thing, but the letter argues that qualified immunity also protects legislators. who are "uniquely and powerfully positioned to broadly deprive individuals of their rights." Again assuming he is talking about immunity from federal suit, he is wrong in the opposite direction. Legislators enjoy absolute immunity for their votes and legislative actions. But that distinction is based on the fact that individual legislators are less able to harm someone, there are political and electoral checks, and any violation is caused by the enforcement of legislation, remedied by a suit against the enforcing executive (who, of course, can claim qualified immunity). Executive immunity is (and should be) more limited than legislative immunity because executives interact with the public and can act individually to violate rights. Oh, and they can shoot people.

Again, if he is attempting to talk about state tort immunity, ignore the above--I know nothing about Colorado law so I do not know if what he says is correct. But if he is attempting to talk about federal claims under § 1983 or if he confused the two, this is a poor piece of advocacy.

Posted by Howard Wasserman on September 4, 2020 at 01:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 03, 2020

Universality, facial invalidity, and the First Amendment

I am a couple of days late to this Third Circuit decision declaring invalid as-applied, but not facially, the age-verification, labeling, and record-keeping requirements of the Child Online Protection Act. But the court reversed on scope-of-injunction, limiting the bar on enforcement to the named plaintiffs.

Two bits of good news. The court dropped a footnote that "nationwide" is the imprecise term, citing Justice Thomas' Trump v. Hawaii concurrence that the problem is not geographic scope but "universal character." And the court ended in the right place--with an injunction particularized to the individual plaintiffs.

The bad news is how it got there. These plaintiffs--journalists, commercial photographers, and producers of sex-education materials--were niche actors and different from typical players in the pornography industry. Given their unique facts and positions, the remedy protecting them should not protect differently situated actors. But that should not matter. Even if non-party pornographers were similarly situated to the plaintiffs, absent class certification, the injunction should not protect beyond the plaintiffs; it is unnecessary to accord complete relief or to remedy the violation of those plaintiffs' constitutional rights.

One point of confusion is that two associations--the Free Speech Coalition and the American Society for Media Photographers--were plaintiffs in the case, although their claims were dismissed for lack of associational standing. An injunction protecting an associational plaintiff can become broader, as in protecting the association it must protect its members (Michael Morley describes this as a de facto class action). But this injunction never protected the associations, who lacked standing. But that proves the point. There is no reason to consider the organizations' standing if the injunction protects them at the end of the day. Particularity in the injunction is more consistent with the other rules of civil litigation.

Posted by Howard Wasserman on September 3, 2020 at 03:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 01, 2020

Separation of powers, separation of parties, and subpoena enforcement

Following on Monday's post about the D.C. Circuit holding the House lacked a cause of action to enforce a subpoena: I mentioned that Congress could fix this by enacting a statute creating a right to sue. But that effort would offer an interesting test of the Levinson & Pildes "separation of parties, not separation of powers" thesis.

The President would likely veto any such bill. He will not want to subject himself and the executive branch to subpoena-enforcement actions. And he will want to retain control over subpoena enforcement actions, through DOJ.

The question then becomes whether Congress will override that veto. A legislature committed to separation of powers--and the Madisonian conception of ambition counteracting ambition--would override the veto, asserting its institutional prerogatives against executive recalcitrance. But Congress has been interested in checking the executive only when he is from the opposing party. So the question is whether sufficient Republicans in both houses would override a Trump veto or sufficient Democrats in both houses would override a Biden veto. And the answer to that is not clear. Perhaps each party will play a long game--"override my co-partisan President now so the power exists when the opposing party is in the White House." But the answer is not clear.

Posted by Howard Wasserman on September 1, 2020 at 09:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, August 31, 2020

D.C. Circuit has a busy day

As has been widely discussed, today is Judge Griffith's last day on the court, so it wanted to get some things out.

First, the en banc court in an 8-2 per curiam denied Sullivan's Michael Flynn's petition for writ of mandamus, concluding that Flynn had an adequate alternative remedy via district court proceedings on the motion (which may result in dismissal) or appeal or further mandamus of any district court decision. The court also declined to order the case reassigned to another district judge. Griffith wrote a short concurrence, emphasizing the purely legal (rather than political) nature of the dispute in the case.

Second, Griffith wrote for a 2-1 panel that the House (held by the en banc court to have standing to sue to enforce a subpoena against Don McGahn) could not sue to enforce because it lacked a cause of action to sue. Neither Article I (the source of the right to subpoena information), equity, nor the Declaratory Judgment Act provides an existing cause of action. Congress can fix the problem by enacting a statute creating a right to sue. This confirms why, as I wrote following the en banc decision, standing is such a colossal waste of time. It also reflects a D.C. Circuit (and perhaps Supreme Court) that seems determined to push the House to start fining and jailing witnesses who refuse to comply with subpoenas by cutting-off the civil-suit alternative. Like its predecessor, it may not withstand en banc review.

Judges Rogers dissented, arguing that Art. I and the DJA provide a right to sue. She continues to argue there is jurisdiction over the action under § 1331, a point the majority found unnecessary to address. McGahn argued there was no jurisdiction over an action by the House because no statute grants that jurisdiction, while  § 1365 grants jurisdiction over actions by the Senate. The implication is that § 1365 provides the sole basis for jurisdiction in actions by the Senate, superseding § 1331. And since there is no House counterpart to § 1365, the House cannot rely on § 1331. But this ignores the plain text of § 1331, which gives jurisdiction over anything that arises under, without Congress having to do more. As Rogers pointed out, § 1365 was enacted when § 1331 had an amount-in-controversy requirement, so a separate statute was necessary to give jurisdiction over all possible actions. Many separate jurisdiction grants were enacted for similar reasons. But since Congress eliminated the AIC requirement in 1980, none has been read as anything more than vestigial and certainly not as precluding § 1331.

Posted by Howard Wasserman on August 31, 2020 at 03:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, August 28, 2020

3d Circuit reveals division on union clawbacks

After Janus v. AFSCME declared invalid union agency-fee statutes as violative of the First Amendment , the next question became whether the non-members could clawback frees from within the past 2-3 years (within the statute of limitations). The Seventh, Second, Sixth, and Ninth Circuits said no and without dissent, relying on some form of good-faith defense to § 1983--because the unions believed the fees permissible under state law and judicial precedent.

The Third Circuit joined the chorus in an action against the Pennsylvania Teacher's Union, but  revealed the first deep divides. Judge Rendell adopted the prevailing view of a good-faith defense, along with principles of equity and fairness, to preclude liability where a private actor relied on prevailing law. Judge Fisher concurred in the judgment, relying on a historic principle that that judicial decisions declaring laws invalid or overruling precedent did not generate retroactive civil liability. And Judge Phipps dissented, arguing that neither defense existed at common law, so the actions to recover past fees should proceed.

Curious to see if this issue makes its way to SCOTUS before the Court fully pursues qualified immunity.

Posted by Howard Wasserman on August 28, 2020 at 05:25 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 27, 2020

Bad Legal Takes and the writ of erasure fallacy

Moderate Mentality reminds us that the federal flag-desecration law remains on the books, because a decision declaring a law invalid and unenforceable does not erase it from existence. So, yes, MM, federal officials could use closed-circuit TV and facial-recognition software to try to hold people accountable. As long as those officials do not mind losing in court and being made to pay damages and attorney's fees.

Posted by Howard Wasserman on August 27, 2020 at 06:27 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (11)