Thursday, July 18, 2024

Why is this jurisdictional?

Hunter Biden moved to dismiss his indictment for lack of jurisdiction arguing that special prosecutor David Weiss' appointment is constitutionally invalid under the Appointments and Appropriations clauses, in light of Thomas' Trump concurrence and Judge Cannon's decision to dismiss the documents case.

I leave to others the constitutional merits. My question: Why is this a jurisdictional defect? The motion describes this as an indictment "brought by an unauthorized prosecutor" and concludes that this means the court lacks jurisdiction, citing Trump and a 1991 9th Circuit case treating a challenge to a special AUSA's authority as going to the court's jurisdiction. But the cited portion of Trump does not use the word jurisdiction and the 9th Circuit case came a decade before the Court righted the ship on the jurisdictional label.

I focus on civil cases and perhaps criminal cases are different. But I think this comes back to conflating types of jurisdiction. The jurisdiction (i.e., "authority" or "authorization") problem is one of executive or prosecutorial authority--the official pursuing the prosecution lacks the constitutional authority to pursue the case. But the absence of executive jurisdiction to act should not strip the court of adjudicative jurisdiction, just as the absence of legislative jurisdiction to enact the law being enforced does not strip the court of adjudicative jurisdiction. Both require the court to exercise its power and grant judgment for the defendant on the merits.

Is there something different about criminal law and the prosecutorial power that changes this analysis?

Posted by Howard Wasserman on July 18, 2024 at 06:46 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, July 13, 2024

More on the continued usefulness of Younger

A third post on the 11th Circuit and rethinking Younger:

The Volokh Conspiracy's weekly Short Circuit roundup includes the case, along with a link to an Institute for Justice amicus brief. IJ offers a slightly different argument than Judge Rosenbaum for rethinking Younger. Pre-enforcement offensive litigation has expanded since the 1970s when the Court decided Younger and its early progeny, because the Court has developed a greater willingness, especially in First Amendment cases, to find the threat of prosecution sufficiently imminent. In this case, that means a "phonebook's worth" of similarly situated PACs and organizations could sue Georgia in a pre-enforcement challenge to these laws. Abstention in this case therefore does not serve Younger's stated purposes: Someone else can bring the federal court into the mix via pre-enforcement action, leaving state courts and agencies no room to operate, just not the plaintiffs with the most concrete injuries (the ones facing actual rather than threatened enforcement).

An interesting argument, although it might prove too much. Constitutional litigation is atomized, with different cases challenging a particular law as to different rights-holders. So there is nothing inconsistent if some cases involving some rights-holders must remain in state court while other cases involving other rights-holders can be in federal district court. Maybe a case such as this one, involving general campaign-finance regulations, is different.

Posted by Howard Wasserman on July 13, 2024 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, July 05, 2024

More on collateral order review of presidential immunity

The latest episode of Divided Argument with Will Baude and Dan Epps explores Trump. Baude praises Barrett's conception of presidential immunity  as an as-applied constitutional challenge to the law. So conceived, however, Baude questions Barrett's conclusion that denial of the defense is immediately reviewable. Immunities receive immediate review, as they protect the person from having to stand trial or stay in litigation for too long. Constitutional defenses--e.g., a separation-of-powers defense to the CFPB (Barrett cites Seila Law as an example) or a First Amendment defense to a flag-burning law--do not, as they protect the person from liability. I want to unpack what I wrote about this.

COD appealability should not turn on labeling something as "immunity" or as a "right not to stand trial." Barrett's point is that immunity is never a distinct concept; it is shorthand for the argument that a law does not apply to the defendant's conduct.* And it is not obvious what makes something a right not to stand trial as opposed to a defense to liability, beyond the label--every defense can be characterized as one or the other.  There is no obvious reason that double jeopardy and qualified immunity are immunities according a right not to stand trial while preclusion and the FTCA judgment bar are defenses to liability.

[*] Justice Alito has said the same about MLB's antitrust immunity--he describes it as a judicially interpreted exclusion of MLB from the scope of antitrust laws and the application of those laws to MLB's conduct

Justice Souter tried to wrangle this issue in two unanimous COD opinions--Will (FTCA judgment bar) and Digital Equipment (private covenant not to sue). Reviewability should turn on the systemic import of the interests sought to be vindicated by immediate review and that would be lost by "rigorous application of a final judgment requirement." Thus, "it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is 'effectively' unreviewable if review is to be left until later." This analysis considers the source of the asserted right (Constitution, statute, common law, contract) and who and what the right protects (individual or systemic interests). Unfortunately, Souter's approach has been lost in favor of simple labels.

Back to Barrett and presidential immunity. Her conception of a constitutional defense to a prosecution places presidential immunity on the same footing as the separation of powers and First Amendment defenses above. So why is the first immediately reviewable and the other two not? She never explains. Souter's considerations about underlying interests provide a way out. Although all derive from the Constitution, the latter two (and certainly the third) protect individual liberty interests; the first protects broad systemic interests of the presidency and the ability of the President to act within the constitutional system. That distinction may be wrong. Separation of powers in Seila Law serves structural interests of preserving the President's removal power; one could argue individual liberties serve structural interests of limiting government power. Maybe Barrett's position, taken seriously, explodes the COD or forcse the Court to make absurd distinctions to ensure COD remains a "small class of claims."

But Barrett's position about presidential immunity is not necessarily wrong or inconsistent with COD--if we accept Souter's position that COD turns on the underlying interests and policies at issue and begin the analysis there.

Posted by Howard Wasserman on July 5, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 03, 2024

Presidential immunity, Speech-or-Debate, and evidentiary privilege

An email exchange with Lee Kovarsky (Texas)--who has great analysis of the immunity decision on Twitter and in a Seattle University Law webinar --offers a possible justification for treating presidential immunity different from Speech-or-Debate immunity in terms of anevidentiary privilege. Lee concedes this may not justify the criticism or differential treatment--maybe both should include the evidentiary privilege. But it is the first possible distinction anyone has presented to explain unique complaints about the evidentiary privilege and to explain why the majority had to do more to defend it.

My mistake was in thinking about the evidentiary privilege as downstream from immunity simpliciter rather than as downstream from the underlying textual and policy bases for immunity. The issue is not "both are incidents of absolute immunity." The issue is "whether this is properly an incident of the underlying basis for that immunity." They are not the same. Summarizing (not quoting) Lee's argument:

Under the Speech-or-Debate Clause, members "shall not be questioned in any other place." That is a uniquely broad framing; it has a "what happens in the House stays in the House" flavor to it. An evidentiary privilege fits the core of that language--to use legislative acts in court in any manner is to "question" such acts in another place. Presidential immunity rests on policy--ensure "bold and unhesitating action." An evidentiary privilege may be less core to that policy--it is less obvious that using presidential actions as evidence to prove other, non-immune misconduct causes the President to be less bold or more hesitating in his official actions.

Take bribery as the paradigm. Offering evidence in court of a corrupt floor speech or vote as evidence of a bribery scheme questions that act in another place, something the text precludes. Offering evidence of one corrupt pardon to prove a bribery scheme does not run afoul of any textual limitation and does not obviously cause the President to be less unhesitating in offering pardons.

I will add one more piece to this--None of the other policy-based immunities--for example, absolute prosecutorial and judicial immunities under § 1983--includes an evidentiary privilege. Thus, an evidentiary privilege is not inherent to immunity. Something makes Speech-0r-Debate unique among all other immunities--its grounding in far-reaching text.

The counter to this argument is that the Framers (according to James Wilson) included the Speech-or-Debate Clause to "enable and encourage the Representatives of the public to discharge their trust with firmness and success." So legislative and presidential immunities serve similar policies, albeit at different levels of remove.

At the very least, however, this requires analysis and explanation on everyone's part. The majority needed to explain why this evidentiary privilege was essential* to the underlying policies justifying the immunity it established; Justice Barrett needed to explain why it is not essential to an immunity she agreed with, in light of Speech-or-Debate's evidentiary immunity; and the dissent and everyone else criticizing the evidentiary piece needed to identify and work through the distinction Lee came up with.

[*] In that Seattle Law webinar, Steve Vladeck suggested it was not within the QP.

Posted by Howard Wasserman on July 3, 2024 at 12:48 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Questioning prosecutorial immunity

Justice Sotomayor respecting (although not dissenting from) denial of cert in Price v. Montgomery County questions prosecutorial immunity--its origins (including noting Alex Reinert's article that Congress abrogated all common law immunities when it enacted § 1983); the misalignment of its scope compared with its policy goals; and the inadequacy of alternative means of remedying prosecutorial misconduct. She does not argue the Court should have granted cert. She argues that the cert denial should not be read as tolerance of the prosecutor's conduct (the Court denies cert for many reason); that the Court may need to step in; and that lower courts must keep immunity with "'quite sparing'" bounds.

Posted by Howard Wasserman on July 3, 2024 at 11:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Jurisdictionality and presidential immunity

On top of everything else that was bad in Trump, the majority and Justice Sotomayor use language that could be read to suggest that this immunity is a limit on the court's adjudicative jurisdiction rather than a defeat on the merits.

Discussing the first bucket of presidential conduct (conclusive and preclusive), Roberts quotes Youngstown that this bucket "'disables the Congress from acting upon the subject'" and Marbury that "the courts have 'no power to control [the President's] discretion'" and that discretion "cannot be subject to further judicial examination." He repeatedly speaks in the same breath of what Congress and the courts cannot do--"Congress cannot act on, and courts cannot examine, the President’s actions;" Congress "may not criminalize the President's actions . . . Neither may courts adjudicate a criminal prosecution;" or the removal power "may not be regulated by Congress or reviewed by the courts." Justice Sotomayor does the same in arguing against immunity, as by insisting that "'common tribunals of justice should be at liberty to entertain jurisdiction of the offence'"  or stating that "'judicial action is needed" such that "the exercise of jurisdiction is warranted.'"

To be fair, some of this comes from quoting old sources (Marbury and Story's Commentaries) or cases from before the Court grew more careful about using the word jurisdiction or speaking about courts exercising judicial power (Nixon v. Fitzgerald). But it would be unfortunate if the language causes courts (such as Judge Chutkin and the DC Circuit on remand) to backslide. Trump recognizes a disability on Congress and its legislative (or prescriptive) jurisdiction--Congress cannot enact criminal statutes that regulate certain presidential conduct. It is not a limit on the court's adjudicative authority, except in dictating how the courts must resolve any future attempt to prosecute a president and likely dismiss such a prosecution, if attempted.

Justice Barrett's distinct framing of immunity--as a challenge to the constitutional validity of the statute as applied to the President's conduct--also understands immunity as merits rather than jurisdictional limitation. Where the would-be statute of conviction is constitutionally invalid as-applied, the court is not stripped of adjudicative jurisdiction; it rejects the prosecution on the merits due to a defect in the congressionally enacted substantive law.

Posted by Howard Wasserman on July 3, 2024 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, July 01, 2024

The Court's craven view of politics and other thoughts

• The Court holds a craven view of "ordinary politics"--everyone abuses power for their personal self-interests and gain and that exchange of self-interest defines the political game. The legal problem thus is not that self-interest or abusing power but the supposed efforts of legislatures and overzealous prosecutors to criminalize such self-interest and abuse-that is, to criminalize ordinary politics. That explains the Court's efforts to limit anti-corruption laws or SOX's obstruction provision--gratuities and gifts and outsiders' efforts to affect official proceedings are part of the political process and the criminal laws should not be interpreted to stop that. I think the same view explains presidential immunity. Of course the President needs immunity for everything he does in office because of course the President will abuse his office for personal gain--that is just how the political process works and Congress cannot criminalize it or allow an over-zealous prosecutor to prosecute it. Stated differently, Trump using the levers of office to stay in power or for other personal gain does not create a problem--that is the game. Prosecuting one's successor creates the problem.

Richard Primus on Twitter: Fundamentally, the problem is the same as it has always been: the system is not built to withstand a Holmesian Bad Man as president. I agree. But it seems to me the Court believes the Holmesian Bad Man is our typical (if not ideal) public official.

• I re-up this exchange between Gerard and Paul about why we succeeded as to Nixon and Watergate and have failed as to Trump and January 6. Today's decision took judicial action and criminal law off the table. But the exchange is relevant because I read the decision to repudiate all of Watergate. Under this opinion, it seems to me Nixon could not have been prosecuted for the key actions that got him in trouble--the taped conversations with Haldeman and pushing the CIA to obstruct the FBI investigation--and that Ford's pardon was unnecessary.

• I am surprised by the many people surprised that the Court extended immunity to include a privilege against evidentiary use of immune acts. Legislative Speech-or-Debate immunity has long included such an evidentiary privilege--government cannot use immune legislative acts (e.g., a floor speech or vote) to prove a bribery case.* If the President enjoys a similar absolute immunity from prosecution for "presidential" functions, it seems logical that immunity would extend to evidentiary use. I am not agreeing with the Court's decision to create a speech-or-debate analogue from whole cloth, with the existence of either evidentiary privilege, or with the principle that presidential immunity, lacking a similar textual basis, must be co-extensive with legislative immunity. My point is that if an evidentiary privilege is inherent in one immunity, it is not surprising that it is inherent in the other. And so I am curious why Justice Barrett, who appeared skeptical of immunity during oral argument, drew that as her line and declined to join that portion of the Roberts opinion.

On that note, by the way: I would love to hear from people who study this issue why that textualist point never arose in this case. The framers included the Speech-or-Debate Clause because they did not believe the Article I vesting clause sufficient to establish legislative immunity. No one argued that the Article II vesting clause is not sufficient to establish presidential immunity. Why not?

[*] The court applied this in the prosecution of NJ Senator Bob Menendez, excluding from evidence certain texts referring to Menendez's actions in delaying or not delaying aid to Egypt.

Posted by Howard Wasserman on July 1, 2024 at 03:50 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thoughts on NetChoice

I decided to begin the day with NetChoice, the case about which I would have something to write. Then I can read about how the framers, 11 years removed from a revolution against a king, created a monarch (more powerful than the one it replaced) who is selected and serves for a few years at a time but otherwise can do no wrong.

Anyway, NetChoice. The argument somewhat previewed the result, but the internal dynamics may have been messy.

• The Court is unanimous on the disposition of this appeals--vacate both lower courts and tell them to do the analysis over, because this is a facial challenge. Justice Kagan writes for six (the Chief, Sotomayor, Kavanaugh, Barrett, Jackson) to explain a proper approach to facial challenges and to trace the Court's editorial-judgment jurisprudence (Tornillo, PG&E, Turner, Hurley, Pruneyard, and FAIR). She writes for five (loses Jackson) to explain how that jurisprudence applies to render the core provisions of the laws constitutionally invalid and to highlight how badly the Fifth Circuit messed up. Justice Barrett concurs to complain about the complexities of facial challenges and to suggest plaintiffs would have an easier time with a narrower as-applied challenge. Justice Jackson does not join the parts of Kagan's opinon (III-B and C) that explain how that jurisprudence ought to apply to these laws, deeming it premature. Justice Thomas concurs in the judgment to explain why facial challenges should not be allowed. Justice Alito concurs in the judgment for three (Thomas and Gorsuch) to explain why the Court should not have opined on the First Amendment questions and then to offer a contrary First Amendment analysis.

• This will be lost in the procedural mud and the news of the day, but: Five-and-a-half Justices offered a strong vision of First Amendment protection for curators of all kinds and of the limits of government trying to balance the market in ways it deems proper or in ways that will help the speakers and speech it likes.

• Justice Jackson's choice is odd. She joins Kagan's summary of the jurisprudence (III-A) but not its application (III-B and C). But Kagan completes that summary with three general points--1) the First Amendment protects curation of third-party speech; 2) that does not change when the compiler allows most speech or only excludes a small amount of speech; and 3) the government does not have an interest in balancing the expressive marketplace. Those three principles imply the resolution as to the core provisions--the sites have a First Amendment right to do this and Florida and Texas cannot rely on the only interest either has offered for these provisions. So if Jackson believes the statement of legal principles (with their obvious implications) is proper, I am not sure why she departed from the actual application.

• Justice Thomas explains everything that is wrong with facial challenges, including that they enable universal injunctions. But this is wrong, as Dick Fallon has argued. A declaration of facial invalidity is a statement about the law that has preclusive effect on the parties and precedential effect on future parties. It does not disappear the law, it does not adjudicate the rights of non-parties, and it does not stop future enforcement against non-parties. Although facial resolution from SCOTUS dictates the outcome of that future enforcement as a matter of precedent, that is how precedent is supposed to work. Perhaps apprehensiveness about facial challenges is of a piece with the idea (observed more in the breach) that the Court should decide no more than necessary to decide the case. But that is a prudential rule, not grounded in Article III or separation of powers. Of course, the Court could get to the same place if it did not insist on judicial supremacy, on it having the final word on the constitutional question that binds all other actors.

• The Court limits (majority view) or rejects (Thomas view) facial challenges as a way to keep the Court from wielding too much power at the expense of the other branches, where those branches would be stymied by the Court's pronouncements on the Constitution to make or enforce the laws against non-parties in the future. But the Court would not need that limit if it did not assume that a declaration of facial validity binds the executive in the future.

Murthy v. Missouri held that states and users lack standing to challenge the Biden Administration's jawboning of social-media sites, reflecting the Court's distaste for "massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims." Something similar might be at work here. These laws have core provisions raising constitutional problems (limits on curation and notice requirements) for specific actors (Facebook and YouTube) for specific conduct (their home pages or news feeds). Litigation by a trade association challenging all provisions of the law goes too far. Again, that limit might have cross-ideological effects.

• It will be interesting to see what happens going forward. Might it be worth it for NetChoice (or just Facebook and YouTube) to rework this as an as-applied challenge to the moderation and notice provisions (which a majority of the Court said violate the First Amendment) and leave the rest for another day? There is an argument (Ilya makes it) that the invalidity of these core provisions is sufficient to create the necessary overbreadth compared with any legitimate sweep of the law (such as Gmail or Uber reviews).

• Florida AG Ashley Moody took to Twitter to announce that the Court unanimously sided with it--"We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law." This is impressive in its understatedness and in its cynicism that my fellow Floridians will not read the opinion or get their news from an accurate source. "Aspects of the decision we disagree with"--the Court rejected the entire First Amendment edifice on which Florida relied. Kagan's opinion sees "the First Amendment issues much as" the Eleventh Circuit did in Judge Newsom's excellent opinion. Moreover, in emphasizing the Fifth Circuit's wrongness, the Court impliedly announced the Eleventh Circuit's correctness as to the constitutional invalidity of the core provisions.

Posted by Howard Wasserman on July 1, 2024 at 02:46 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 27, 2024

Oops (Updated and Moved to Top)

Final Update: The Court released the opinion Thursday.

SCOTUS [on Wednesday] inadvertently posted the opinion in the EMTALA case, dismissing the writ as improvidently granted and lifting the stay of the district court injunction prohibiting enforcement of the law. (Bloomberg has the story behind a paywall). Bloomberg says the vote was 6-3 (Thomas, Alito, Gorsuch dissenting) as to the DIG and stay, although it also says Jackson wrote to say she would not have dismissed (which sounds like a dissent, if the disposition is a DIG).

The upshot is that the district court's preliminary injunction prohibiting Idaho from enforcing its abortion ban remains in effect pending continuing litigation.

Let the conspiracy theories of how this happened bloom.

Update: Bloomberg posted an oddly formatted draft. If it is authentic, here is the deal:

    • Six Justices vote to DIG and lift the stay of the district court injunction. Three vote not to DIG but to keep the stay in place. Jackson votes to keep the stay in place but not to DIG.

    • Kagan concurs with Sotomayor to argue that the Court never should have taken the case and with Sotomayor and Jackson to respond to Alito's dissent, especially his stupid argument (which he previewed during arguments) that the reference to protecting an unborn child means EMTALA does not require abortions.

    • Barrett concurs with the Chief and Kavanaugh to argue the DIG is appropriate because the case changed between the grant of cert and now--both from the U.S. positions as to federal law (especially as to conscience objections) and from Idaho as to the scope, meaning, and application of state law. Given these changes and the "difficult and consequential" argument that the Spending Clause cannot preempt state criminal law, the Ninth Circuit should consider the new issues in the first instance.

    • Jackson argues the Court should decide the case--having taken it, heard argument, and distorted the litigation process, the Court should decide rather than delay the issue. In particular, she criticizes Barrett's view that Idaho's legal representations before SCOTUS have changed state law or how state law will affect doctors in ERs, such that the supposed injuries to Idaho that justified intervention have gone away.

    • Alito, joined by Thomas and Gorsuch, explains why EMTALA does not require abortions as a matter of text and the special rules for finding preemption from a Spending Clause enactment. Gorsuch does not join the portion dissenting from the vacatur of the stay.

This clearly illustrates the theory of a 3-3-3 Court. So speculation on what happened at conference and what changed between conference and now? Was the Chief/Kavanaugh/Barrett planning to go with Thomas/Alito/Gorsuch, then Kagan/Sotomayor/Jackson got them to cool their heels for now? Were they willing to delay knowing: 1) President Trump makes this issue go away in 2025 and 2) the DIG leaves in place a Fifth Circuit decision that EMTALA does not preempt, pending the Ninth Circuit creating a true circuit split worthy of review? Did that group not want to hand conservatives another defeat by joining with Sotomayor/Kagan/Jackson, knowing they could wait (see the prior ¶?)? Something else?

To be clear, Justice Jackson is not happy here: "Today's decision is not a victory for pregnant patients in Idaho. It is a delay." It gives "a few months--maybe a few years--during which doctors may no longer need to airlift pregnant patients out of Idaho."

Posted by Howard Wasserman on June 27, 2024 at 10:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 26, 2024

No standing in jawboning case (Updated)

Murthy v. Missouri--6-3, per Barrett, finding that any injuries were not fairly traceable to the government defendants; Alito dissents for Thomas and Gorsuch.

• The decision limits these massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims--a record of undifferentiated "stuff that looks bad" is not sufficient to get a broad injunction stopping the government from engaging in future conduct.  Instead, plaintiffs must show "a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff's speech on that topic." These plaintiffs encountered two further problems--1) any (questionable) past injuries were merely evidentiary on claims for prospective relief but could not themselves establish standing; 2) they needed to link the government defendants' actions to those of the non-party social-media sites, a longer chain of causation. As Jonathan Adler puts it, the Court's message to litigants is "do the work" if you want to push aggressive legal claims.

• The decision will have cross-ideological effects, as liberal plaintiffs must similarly tailor their lawsuits. Of course, courts have hamstrung liberal plaintiffs for years, so this is nothing new for them.

• The case illustrates why standing makes no sense independent of the merits. Even for the one plaintiff (Jill Hines, a medical commentator) able to "eke[]" out a showing of traceability, the challenged conduct does not rise to the level of coercion that would violate the First Amendment. So talking about whether she is suffering an "injury" traceable to not-unlawful conduct as a basis to enjoin not-unlawful conduct seems like a waste of time. The essence of this decision is the plaintiffs sued the wrong people, which would be a merits decision in, for example, a tort claim. It should not be different in a constitutional action.

    Update: Michael Dorf argues that the majority hides within the standing analysis "a view on the merits--namely this: wherever the line between permissible jawboning and impermissible coercion lies, the sorts of actions taken by the Biden administration fall on the permissible side." But by framing this as standing, it leaves the Court room to find coercion in future jawboning efforts that go farther than this does.

    But this case and Michael's hypothetical future case both address the merits, distinguishable only by the facts and the constitutional line. Why is it not better for the Court to be honest about that, rather than disguising a determination that no rights were (or presently are) violated as the absence of jurisdiction.

    I wonder if the answer to the incoherence of standing is Thayerian judicial review. Courts will reach the merits more often, so review should be more deferential. Have to give that some thought.

• The Court recognized the standing of Louisiana and Missouri as nonsense. But here are the arguments the states tried to make: 1) States suffer an injury when sites moderated posts from state legislators; and 2) States suffer a sovereign injury when the federal government prevents their citizens from speaking to them and prevents them from hearing from their citizens. The latter is prohibited parens patriae in disguise. But it seems hard to square both arguments with the positions states and state officials took in Lindke and O'Connor-Ratcliff about the power of state officials to block citizens from social-media pages. Lindke made clear that officials do not want to hear from their citizens all that much. And under Lindke, which required the defendant to have the legal power and obligation to speak for the government, no legislator will be subject to suit because no individual legislator possesses that power or obligation. It seems hard to square the argument that states are injured if legislators cannot speak on social media with legislators are not sufficiently connected to the state when their blocking readers on social media.

• Although spread across two sittings, three cases--Murthy, NetChoice, and Vullo--danced around similar issues about the extent to which government can affect or influence one actor as it relates to the speech of others. We have two and await NetChoice. Alito's dissent linked them: He argued that the "censorship" (his word) here was as dangerous, if more subtle, than the action declared invalid in Vullo; and he argued that social media sites are more susceptible to government coercion because of their dependence on § 230 and susceptibility to antitrust suits. Might the latter point hint that the Court will declare the state laws in NetChoice invalid--with Alito placing his marker for a dissent arguing it is inconsistent to limit state power over site moderation to the detriment of particular speakers while leaving the federal government free to (indirectly) run roughshod over the same group of speakers.

• Will this bring the Fifth Circuit to heel--the second time in less than a month the Court has reversed, on standing grounds, an overbroad universal injunction in a conservative constitutional challenge to a Democratic administration, forum-shopped into the Fifth Circuit? I doubt it. (Note: Adler adds California v. Texas as another example of the Fifth Circuit ignoring traceability problems to pass on the invalidity of federal law).

Posted by Howard Wasserman on June 26, 2024 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, June 24, 2024

Tea leaves on gender-affirming care? (Updated)

SCOTUS granted cert in United States v. Skrmetti on whether Tennessee's ban on gender-affirming care for minors violates equal protection. This is a fool's errand, but I am trying to read the tea leaves on what it might do.

• The grant was narrow. It granted the petition of the U.S. on the equal protection issue as to Tennessee (where the Sixth Circuit held the bans were not gender-discriminatory and not subject to intermediate scrutiny). It did not grant (although it also did not deny) petitions from the private plaintiffs, their due process and parental-rights arguments, or as to Kentucky's similar law. (Compare this with Obergefell, where the Court granted as to all four states whose laws were addressed in the lower court).

Update: I forgot an important piece, related to the fact that the U.S. is the sole plaintiff/petitioner before the Court. What happens if Trump wins the election, which likely will occur before argument (expect the case to be on the November or December calendar) and certainly will occur before a decision? The Court is suspicious of SGs changing legal positions with every new administration. But a Trump Administration could not act quickly enough to stop this litigation. How quickly can Trump get his AG confirmed?

• There is no direct circuit split (yet). A divided Court in April stayed a district court injunction barring enforcement of Idaho's ban pending appeal in the Ninth Circuit, although without getting deep into the merits and with a lot of scope-of-injunction noise; not sure how much to read into the merits there. The en banc Fourth Circuit held that states violate equal protection by denying Medicaid coverage for gender-affirming care. And the Eleventh Circuit held that an insurance provider violated Title VII in not covering an employee gender-affirming care. But no other circuit has ruled on care bans to minors. The Court typically does not take cases to affirm, absent an actual split between courts of appeals (not district courts). And it typically does not take cases anticipating a circuit split--i.e., reviewing (and affirming) the Sixth Circuit to head off the Ninth Circuit. Maybe this changes in the Court's Imperial Phase, more inclined to believe it knows the correct answer now and less inclined to allow multiple circuits to weigh on the other side before SCOTUS' ultimate resolution.

• This may be a test of Bostock and whether what remains of that majority (Chief, Sotomayor, Kagan, Gorsuch, and (presumably) Jackson in place of Breyer) holds and expands to the 14th Amendment.

I will go out on a limb: The Court holds that these bans constitute gender discrimination requiring intermediate/heightened scrutiny, then remand for the lower court to apply that. See you in about 10 months.

Posted by Howard Wasserman on June 24, 2024 at 12:43 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

The limits on judicial departmentalism

In response to Steve:

I agree it presents difficult line-drawing problems. There are prudential limitations--lawmakers should not do this lightly and perhaps requires some good-faith belief that the law should or might change. Two legal doctrines impose a drag on officials. A successful § 1983 plaintiff can recover attorney's fees under § 1988--this increases the cost of defending these laws by placing government on the hook for the plaintiff's legal fees if the courts ultimately declare the law constitutionally invalid. And state officials would lose on qualified immunity in a post-enforcement damages action--SCOTUS precedent clearly establishes most rights.* Elections and the electorate provide the ultimate check--a functioning polity (and yes, we do not have that in all respects now) might punish officials for wasting public money on performative legislation that loses in court and costs the state money in damages and funding litigation costs for both sides.

I take the point that those drags apply only where actual or threatened enforcement allows offensive § 1983 litigation, whether pre- or post-enforcement. This would be more difficult with Steve's example of a state reinstating capital punishment for minors. A defendant could not sue for damages over the decision to pursue the death penalty--prosecutors would enjoy absolute immunity for the litigation decision. An offensive EpY action also may be problematic, although this is a tricky question. A minor not yet subject to a capital prosecution would lack standing; someone facing an ongoing capital prosecution could be Younger barred from going to federal court ("could" because a capital prosecution contradicting binding precedent might fit within Younger's "flagrantly unconstitutional" exception). In any event, a truly brazen example such as this would be litigated to an immediate, potentially pre-trial answer in the first case in which the state sought the death penalty against a minor (assuming case fits, as I think it would, in Cox Broadcasting's fourth finality category of seriously eroding federal policy if SCOTUS must await final judgment).

The capital-punishment example raises concerns for injuries--minors pleading out or spending time on Death Row until SCOTUS resolves (again) the constitutional issue. This warrants a few responses.

    1) Those costs exist in every period before SCOTUS decides any constitutional issue. Not to minimize, but they are inherent in the system of constitutional litigation. Minors sat on death row before Roper; I doubt they were less injured than any minors placed on death row while the state attempts to relitigate Roper. Especially were SCOTUS to overrule Roper and affirm the propriety of those sentences.

    2) They assume lower courts will ignore Roper, allow capital prosecutions of minors, and sentence minors to death. I instead would expect lower courts to apply Roper, bar the capital portion of the prosecution, and force the state to appeal to SCOTUS for new precedent.

As for where it ends, it may not not have an "end," so long as we tie constitutional decisionmaking into adversarial litigation and require some mechanism for reconsidering precedent. The alternative is that rights-increasing constitutional precedent survives forever (unless overruled by constitutional amendment).

Posted by Howard Wasserman on June 24, 2024 at 11:29 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 21, 2024

Judicial departmentalism and the Ten Commandments

A quick word on the new Louisiana law allowing a sect-specific version of the Ten Commandments in all public-school classrooms.

The governor and legislature acted in a legitimate way. They believe the law constitutionally valid and acted on that view, even if that view runs contrary to binding SCOTUS precedent. And they acted in something other than a purely performative, wasting-taxpayer-dollars way, to the extent they believe (not unreasonably) that the current Court might overrule Stone.

Critics must wrestle with this problem: If Louisiana did not or cannot do this, a court could never reconsider or revisit precedent. It takes a new law or enforcement of an old law to create new litigation allowing the court to resolve the constitutional question and to change the law if it sees fit. If a state cannot do this, decisions declaring that government cannot do something are set in stone (no pun intended) and never can be changed. Whatever one thinks of the constitutional validity and/or wisdom of these displays and whatever one thinks about whether the Court should reconsider Stone, it cannot be that any judicial precedent lies procedurally beyond reconsideration.

Posted by Howard Wasserman on June 21, 2024 at 12:32 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit overrules Ex parte Young

Exaggerating only slightly in Mi Familia Vota v. Ogg. Groups brought an EpY challenge to Texas's bullshit post-2020 "election integrity" law, including through some criminal prohibitions. They initially sued the attorney general, but the Texas Supreme Court held that the power to bring criminal charges rested with local prosecutors, not the AG. So plaintiffs amended to add the DA of Harris County (includes Houston). But the Fifth Circuit held that the DA does not fall within EpY (and thus has 11th Amendment immunity from the § 1983--some statutory claims remain) because: 1) Ogg has general discretion to bring criminal charges and no specific obligation to enforce the challenged statute; 2) her specific duty is to do justice, not to enforce criminal laws through convictions; 3) Ogg has never enforced the challenged law (the lawsuit was filed six days after it took effect) and has agreed not to enforce during litigation.

If not making EpY actions impossible, it offers state officials a roadmap for how to get out of it.

• The court requires that every provision impose a duty on a particular officer to enforce that provision. The DA's general obligation to enforce "criminal laws" is insufficient. But most states do not legislate that specifically. Worse, Texas law generally obligates DAs to "see that justice is done," which is not a duty to enforce. Moreover, discretion is inherent in executive functions, especially prosecutions--the DA possesses some discretion on which cases to bring and when. So even the clearest connection between an official and a particular statute runs aground on that inherent discretion.

• The promise not to enforce is even more problematic. Whether an official will enforce a law is part of justiciability (especially standing); the court now imports that into EpY, exacerbating the conflation of these concepts. Even if this should be part of EpY, the analysis is circular. Ogg promised not to enforce while litigation is pending. But if that promise gets the target defendant out of the suit, the plaintiff has no one to proceed against in the EpY action--the promise not to enforce until the end of litigation ends the litigation.

• The promise not to enforce may not control if plaintiff's can point to enforcement history (again importing a piece of standing analysis). But the court emphasizes that Ogg had no history of enforcement because plaintiffs filed suit less than a week after the law took effect, leaving Ogg no opportunity to do that. The lesson: Do not pursue offensive litigation too quickly. Stated differently, if you use EpY too quickly, your EpY action will fail because the target defendant never enforced the law.

• The court cites Whole Woman's Health for the proposition that rightsholders are not entitled to bring pre-enforcement EpY challenges to all laws and that some constitutional rights must be asserted defensively. But WWH bars an EpY action against state officials who have no authority or obligation to enforce a challenged law that is subject purely to private enforcement; it does not purport to narrow EpY or to limit the right to bring pre-enforcement challenges to publicly enforced laws. And while some rights in some circumstances must be litigated defensively, a Fourteenth Amendment challenge to a criminal law has never been one of them. At the same time, the court adopts a cribbed reading of the part of WWH that allowed medical professionals' claims against the licensing boards; it refused to credit as binding the fractured views of two four-person opinions.

So at least in the Fifth Circuit, rightsholders cannot pursue offensive pre-enforcement litigation against a law unless that law expressly imposes a non-discretionary duty to enforce on a specific official, the official does not agree to withhold enforcement until the end of the case, and the official has had time to enforce in the past and build a record of intention to enforce.

EpY aside, the case features some interesting appellate jurisdiction issues. Ogg appealed the denial of her sovereign immunity defense, which is generally subject to COD review. But plaintiffs asserted claims under the Rehabilitation Act, Voting Rights Act, and Americans With Disabilities Act, all of which (or at least arguably are--the court played coy as to all but the VRA) abrogate sovereign immunity; they argued that immediate review was improper here, since the case would not end if the court of appeals reversed and found sovereign immunity. The court also considered, but declined, to exercise pendent appellate jurisdiction over the question of the plaintiffs' standing; Ogg argued that because standing and EpY turn on the same issues, the court should consider all.

Posted by Howard Wasserman on June 21, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 13, 2024

Paring back strange standing doctrines

SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*

* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.

The case hints at paring back more strained forms of standing.

The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).

The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.

Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.

Posted by Howard Wasserman on June 13, 2024 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 22, 2024

Shadow Docket Sunlight Act of 2024

Introduced by Sheldon Whitehouse with a number of Dem co-sponsors. It requires disclosure of votes and at least one written opinion for the Court explaining any decision granting, denying, or vacating injunctive relief or vacating a stay of injunctive relief. The bill makes clear this covers cases within the Court's appellate jurisdiction and thus is an exercise of the exceptions-and-regulations clause.

Two thoughts.

1) Different complaints about the Court trigger different solutions--and those solutions may contradict one another. The need for transparency on the shadow docket requires opinions and vote counts. But the need to get the Court to act  less like a body of self-serving individuals requires eliminating vote counts and limiting opinions.

2) Attempts to control what, when, and how the Court reaches and explains its judgments presents an interesting question about the line between Congress' exceptions-and-regulations power and the "judicial power"/Klein/dictating case outcomes principle. Previous discussions have focused on whether Congress can stop or limit the form and content of opinions; this bill presents the flip side of whether Congress can require opinions. But both go to the same idea--how much can Congress control the presentation of a decision once made.

I expect to use this in Fed Courts in the fall, even if it has no chance of ever becoming law.

Posted by Howard Wasserman on May 22, 2024 at 04:42 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

Posted by Howard Wasserman on May 22, 2024 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, May 08, 2024

TikTok ban and 3-judge district courts

TikTok challenged the new law banning it (at least with Chinese ownership), alleging violations of the First Amendment, equal protection, bill of attainder, and taking. Pursuant to § 3(a) of Division H of the Act, it filed the petition with the D.C. Circuit.

Congress essentially adopted for challenges to the statute the procedure for challenges to regulations implementing and enforcing the statute. But reviewing regulatory action looks appellate, while reviewing the validity of enforcing legislation involves an exercise of original jurisdiction, including taking evidence about standing (unfortunately) and the plaintiff's factual allegations about things such as the impossibility of compliance and the effect on speech. And Congress had such a process if it wanted quick multi-judge review--3-judge district courts.

Posted by Howard Wasserman on May 8, 2024 at 08:58 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 18, 2024

Why Roe is different

When SCOTUS decided Dobbs, I wondered what made it "unprecedented," as pro-choice critics argued. It was not overruling precedent simpliciter, because the Court had overruled other precedent. It was not overruling precedent to limit a right, since the Court had overruled other rights-creating precedent (Lochner, death penalty, and some crim-pro protections).

While doing an interview about the Arizona case, I think I hit on what might be different: The massive number of zombie laws, many more than 100 years old, that Dobbs reanimated. Abortion raises two related features: 1) the large number of old laws dating back to a prior understanding of medical science and a prior perspective on women's bodily autonomy and 2) the large number of abortion laws, many inconsistent or contradictory, that states enacted between 1973 and 2022 to test Roe or to prepare for its demise. Courts must now sort laws out. Women, providers, and advocates to understand a confusing landscape. The same thing did not happen after West Coast Hotel. And probably would not happen if the Court overruled Brown, New York Times, or Obergefell.*

[*] Many zombie anti-SSM provisions remain, including in state constitutions. But the issue is more straight-forward compared with the myriad laws and ways to regulate abortion.

Posted by Howard Wasserman on April 18, 2024 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, April 16, 2024

SCOTUS stays (in part) injunction Idaho transgender-care ban, justices debate (Updated)

SCOTUS stayed the injunction prohibiting enforcement of Idaho's ban on gender-affirming care for minors, to the extent the injunction applied beyond the plaintiffs. We end up in the right place--no enforcement against the plaintiffs pending appeal--but by the wrong process.

Justice Gorsuch, joined by Thomas and Alito, spends 12 pages on the evil and error of universal injunctions. He ends on this:


Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today’s decision wrong, it makes it wrong in the best possible ways, for “good judicial decisions are usually tempered by older virtues.”

That last sentence shoots at Justices Jackson's dissent, criticizing the Court's early involvement. The rest, including as to the inefficiency of constitutional litigation is, as far as I am concerned, spot-on. Note this is the first time Justice Alito has taken a public stance against universal injunctions.

Justice Kavanaugh, joined by Justice Barrett, concurs to ponder a standard for SCOTUS early involvement, especially the need to consider likelihood of success on the merits on emergency stay and injunction-pending-appeal motions. He links the rise in universal injunctions to the rise of shadow docket activity. And he continues Barrett's hobbyhorse about determining the "status" quo for interim and emergency relief--whether the status quo is prior to enactment of the law, prior to the injunction, or something else. He expresses skepticism of universal injunctions, although noting APA as a separate issue.

Justice Jackson, joined by Sotomayor, dissented from the stay. She primarily focused on reducing the Court's early involvement in cases. She emphasized the split of scholarly and lower-court authority, suggesting the issue is not as clear as Gorsuch suggests, but also criticizes Gorsuch for "reach[ing] out" to resolve an unsettled remedial issue on less-than-full presentation. She also argued the injunction was not universal--it was a "party-specific, fact-specific" expansion to ensure full protection to the named plaintiffs--another reason not to resolve the universality question. Justice Kagan dissented from the stay but did not join Jackson's opinion.

Update: Sam Bray has more. Including the point that no one on the Court endorsed universality--at best Jackson says it is unresolved and difficult.

Posted by Howard Wasserman on April 16, 2024 at 10:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, April 01, 2024

Briefplaints, press releases, and long-shot lawsuits

A woman indicted and jailed for murder over a medication abortion brought a § 1983 action against the DA and ADA who pursued the charges. The ADA obtained the indictment and the arrest; the woman spent three days in jail until the DA dropped the charges. The DA was hit with ethics charges for bringing the case, which is unheard of.

There is a lot here related to what I teach.

Prosecutorial Immunity. Prosecutors are immune for presenting a case to a grand jury, including intentionally lying about facts or misstating law in doing so. The complaint tries to reframe the relevant conduct as the pre-grand-jury investigation of the case, which the DA'ss office ran without the sheriff or local PD; prosecutorial immunity does not attach to investigations or to a prosecutor performing law-enforcement functions. It combines that with an exception to the independent intermediary doctrine--because prosecutors played both the "police" and "prosecutor" roles, the prosecutor was not independent of the police so the immune prosecutorial conduct does not break the causal chain between the non-immune investigation and the injury.

Entity Liability. The complaint names the DA and ADA. Although the ADA ran the case, the complaint alleges the ADA ran everything through the DA (the office policymaker) and the DA ordered the arrest. But the Fifth Circuit has long held that county prosecutors act as arms of the state, not the county, in enforcing state penal law. So the County is not a person and enjoys sovereign immunity.

Briefplaints and Press Releases. Two terms I use in class in explaining how many attorneys approach pleading. I found the term "briefplaint" on Twitter to describe a complaint in which the plaintiff's lawyer anticipates and responds to affirmative defenses and legal arguments, filling the complaint with case citations and the arguments she will make in response to a motion to dismiss or for summary judgment. Beth Thornburg (long at SMU) coined the term "pleading as press release" to describe a complaint aimed at the public and the media rather than the court and opposing party--loaded with flowery language and rhetoric and designed to be quoted. The concepts fit together. A briefplaint is more likely in a high-profile case in which the attorney knows people are watching and feels the need to get ahead of defenses and arguments, knowing that the people watching do not understand the difference between a pleading alleging facts and a brief presenting legal arguments. It thus is not enough to provide a short-and-plain statement of the claim (the plaintiff's best version of events) and let everything else happen in time. The plaintiff feels the need to show everything she knows or anticipates about the case.

    This complaint exemplifies that. Part V (the complaint is numbered oddly) lists applicable statutes and constitutional provisions and Part VI lays out a fully cited legal argument for why prosecutorial immunity--an affirmative defense--does not apply. The case has (unsurprisingly) drawn national press attention, so the attorney may believe she has to show the public and the media that she has considered these issues and has a strong case.

Posted by Howard Wasserman on April 1, 2024 at 05:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, March 18, 2024

SCOTUS narrows when officials act under color online

SCOTUS on Friday decided  when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.

Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:

a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A few thoughts:

• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.

• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.

Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have  actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.

• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.

• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.

• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?

Posted by Howard Wasserman on March 18, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, March 08, 2024

Amendment gaps

Gerard's post about near amendments and search for sources reminded me of my similar request to a listserv a few months ago. I had been thinking about the 61-year gap between the 12th (1804) and 13th (1864) Amendments, the longest period between amendments in history. More recently, I was thinking that we are closing in on that record, at 53 years and counting since the 26th Amendment and no amendment likely to be ratified any time soon. But I forgot about the 27th Amendment, ratified in 1992, although proposed in 1789. Resetting the clock, we are at 32 years--about half the record and a decade short of the 43-year gap (to the day--February 3) between the 15th and 16th.

Posted by Howard Wasserman on March 8, 2024 at 08:53 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 28, 2024

Universality and litigation procedure in the social-media cases (Updated)

Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.

Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.

The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*

[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?

Posted by Howard Wasserman on February 28, 2024 at 11:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, February 15, 2024

Jurisdictional confusion never goes away

This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.

The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:

See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).

Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.

[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?

Posted by Howard Wasserman on February 15, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fifth Circuit and favorable termination

I wrote in December about the Fifth Circuit decision in Wilson v. Midland Cty., about the application of Heck to a claim by a woman convicted of crimes in Texas where an ADA was moonlighting as the judges' law clerk. Judge Willett's panel opinion held the claim Heck-barred because Wilson was no longer in custody (she completed her sentence a decade ago), while decrying the injustice of the result.

The court granted rehearing en banc and scheduled argument for May. As I wrote, there is a circuit split on whether Heck applies to a person who no longer is in custody. No matter the result here, the issue seems to be teeing up for SCOTUS resolution.

Posted by Howard Wasserman on February 15, 2024 at 09:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, February 10, 2024

Thoughts on the disqualification case

• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.

None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:

    • Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).

    • SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?

    • A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.

• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.

• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the  scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.

Posted by Howard Wasserman on February 10, 2024 at 06:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, February 08, 2024

The constitutional validity of the Presidential Succession Act

Following on Steve's point: The Presidential Succession Act does not permit someone to simultaneously serve as a House and act as president. Section 19(a)(1) states the "Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." Section 19(b)(1), should it devolve to the PPT, states "the president pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President." The West Wing producers did not have the character do this for the good of the country--the statute requires resignation. And it does so to avoid the Incompatibility Clause problem.

Legislative succession may raise other constitutional problems. Article II § 1 cl.6 empowers Congress to provide by law for a double vacancy by "declaring what Officer shall then act as President." This raises two possible problems. There is some question whether the Speaker or PPT, while legislative officers, qualifies as an officer of or under the United States; legislative officers may not qualify for succession, incompatibility aside. Alternatively, in the moment he resigns the Speakership and his House seat, the person ceases to be an officer--the condition to act as president--who can then take the oath to act as president.

So there may be constitutional problems with § 19. It is not the problem Calabresi identifies because the statute does not say what he suggests it says. And the statute, by requiring resignation, does not prove the larger point about whether the President is an officer.

Posted by Howard Wasserman on February 8, 2024 at 10:50 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Tuesday, February 06, 2024

Reining in the lower courts

The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers. The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results.

SCOTUS often grants cert to pull lower courts back into line when decisions get to far afield, even if SCOTUS forced them there through its decisions and the language of its decisions. That is, SCOTUS pulls lower courts back when they take the doctrine too far, even if the lower courts' decisions reflect natural extensions of SCOTUS precedent. Some cases allow the Court to say "we didn't mean that." This arguably explains Taylor v. Riojas, where the Court held (in a summary reversal) that leaving a prisoner in a cold, barren, feces-strewn cell obviously violated the Eighth Amendment without precedent. It arguably explains HHC v. Talevski, where the Court ensured of the continuing vitality of  § 1983 "and laws" actions.

Might the Court take this case or a similar case--in which the basic logic is "no Bivens claim because this guy is not named Bivens"--to pull back from the worst nonsense? Or is Bivens so doomed that the Court's next move will be to overrule it?

Posted by Howard Wasserman on February 6, 2024 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, January 20, 2024

Every animal who, under color . . .

Fun case from the Eighth Circuit: Whitworth v. Kling (8th Cir.), arising from a K-9 (named Dutch) biting a guest in his off-duty handler's house. The court rejected a Fourth Amendment unreasonable-seizure claim against the handler, because the bite was unintentional and not part of the officer's official efforts. The court treated the K-9 as the officer's weapon used to engage in force--in this case, the sort of unintentional force that does not violate the Fourth Amendment.

But the court ignored two other paths to the same result.

One is that Dutch did not act under color because he did not pretend to perform his official duties----he was playing fetch in his yard off-duty, got distracted, and ignored commands to disengage--or use his position to enable his conduct. That is obviously silly. Section 1983 precludes that approach--"[e]very person" under color. And cases treat K-9s as an officer's tool rather than as the officer. But the thought is fun. And consistent with my use of the pleadings in Naruto v. Slater (the "monkey selfie" case) in Civ Pro.

Another path is that the officer--off-duty, playing fetch in the yard, and not attempting or appearing to perform any job-adjacent acts through Dutch--did not act under color. The dog bite is analogous to an off-duty officer's service revolver accidentally discharging and injuring a visitor to his house. I wonder why the court did not pursue this.

Posted by Howard Wasserman on January 20, 2024 at 05:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, January 19, 2024

The law of Trump and easy cases

I mentioned previously that people have proposed classes on "Law of Trump"--a discussion of the many, many legal issues that have arisen in litigation involving Trump and those in his orbit. A lot of it has touched on Civ Pro and Fed Courts, hence my interest.

Much of the Law of Trump involves not new law, but easy application of established principles, applied to a new, often-unprecedented context receiving outsized attention. Take Clifford Frost, one of Trump's fake Michigan electors, now facing eight state felonies over the scheme. Frost filed a federal action to enjoin the prosecution, although he does not assert a constitutional defense; he recasts a sufficiency-of-the-evidence defense as a 14th Amendment violation and as bad faith. This was, and should be, an easy case for Younger abstention.

Posted by Howard Wasserman on January 19, 2024 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 03, 2024

A new Bivens Catch-22

After federal officials attempted to strip Michael Cohen of his home confinement and placed him in solitary confinement in retaliation for his public statements, Cohen obtained habeas relief. He then sought Bivens damages against Donald Trump, Bill Barr, and a bunch of officials in the corrections system. The Second Circuit affirmed dismissal of the Bivens action, to no one's surprise (except perhaps Cohen and his attorneys)--this is a new context (because the cause is not called Bivens or Carlson) and there are always special factors counseling hesitation. The court relied on the special factor or availability of alternative remedies--the habeas relief that Cohen sought and received.

But note the double work habeas does here. Because Cohen challenged, in part, the terms of his sentence (imprisonment rather than house arrest), a successful damages claim would have implied the invalidity of that part of the sentence. Such a claim is Heck-barred unless he can show "favorable termination" of the criminal proceedings, such as through habeas relief undoing the sentence. But his success in satisfying that preliminary requirement to pursue damages means he has no Bivens claim at all. On the other hand, had he failed in obtaining habeas relief, he might have been able to pursue the Bivens action, only to find it Heck-barred because he failed to show favorable termination.

Posted by Howard Wasserman on January 3, 2024 at 09:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, December 18, 2023

The Times, Dobbs, and SB8

The New York Times had a big piece Friday on the behind-the-scenes events leading to Dobbs. I want to comment on SB8's cameo in the story.

The piece describes the SB8 case as the beginning of the fall of Roe and the failure to stay enforcement before the law took effect as the point at which "Roe was partially undone." I saw one surprising bit in this section--that Justice Gorsuch was incommunicado except through Justice Alito on the evening of August 31 (the law took effect at midnight September 1). He expressed no view until the next day (which Alito relayed to the rest of the Justices), then voted to deny any injunction the following day. Beyond that weirdness, everything the Justices said in internal memos (as quoted in the Times) appeared in the opinions in the stay order--Roberts' view that the existence of the law might create an independent violation and Justice Sotomayor's view that it was a "pity that we cannot do the right thing."

The problem with giving SB8 a meaningful role in the drama leading to Dobbs is that the outcome of the case should have been obvious. The Court had never said the mere existence of the law violates the Constitution independent of enforcement. The Court cannot stop the law from taking effect, because the Court cannot enjoin a law, independent of its enforcement. And the Court could not, in a § 1983/EpY action, enjoin unknown private actors from doing anything. All of this should have been obvious when the private case reached the Court.

Posted by Howard Wasserman on December 18, 2023 at 12:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, December 15, 2023

Favorable termination and miscarriages of justice

Case out of the Fifth Circuit, written by Judge Willett, on Heck v. Humphrey and the so-called Heck bar or habeas exception to § 1983:

A former county ADA in Texas moonlighted for two decades as law clerk to the judges of that district. He was discovered in 2019 and disbarred. Erma Wilson was convicted of cocaine possession in 2001 and received an 8-year suspended sentence. Wilson learned about the conflict when a capital conviction was overturned on habeas (she was not among the many people who received written notice from the DA about the conflict) and brought a § 1983 action, more than two decades after her conviction and more than a decade after completing her sentence.

Heck precludes § 1983 damages actions that would functionally call into question the validity of a conviction or sentence; habeas provides the sole federal vehicle for challenging state convictions. A § 1983 plaintiff must show "favorable termination" as an element of her claim. The problem arises when, as in Wilson, an individual no longer is in custody and thus cannot challenge the conviction or sentence through habeas. The Heck majority adopted favorable termination as an absolute rule. Justice Souter concurred in the judgment to argue that favorable termination should apply only at the "intersection" of habeas and § 1983, where both vehicles might be available; it should not apply when habeas is unavailable because the plaintiff no longer is in custody. Souter illustrates with a hypo that basically matches this case--a procedurally compromised conviction where the person does not learn about the compromise until after his release from custody. In Spencer v. Kemna, five Justices in three separate opinions adopted that position. This precipitated a circuit split--five circuits, including the Fifth, hold that Heck always applies; six allow for some exceptions; the answer depends on whether lower courts can count noses to find binding precedent or whether SCOTUS creates binding precedent only through a single majority opinion. Because the Fifth Circuit requires favorable termination, Wilson's claim was Heck-barred.

Judge Willett was outraged. He described the conduct and the outcome as "utterly bonkers," "difficult to explain," "hard to take in," and "underscor[ing] that the American legal system regularly leaves constitutional wrongs unrighted." He footnotes the last with references to prosecutorial immunity, Monell, and qualified immunity, stating "Upshot: Many Americans’ rights are violated but not vindicated."

Two questions of interest going forward:

1) What happens next. Willett emphasizes that the en banc court or SCOTUS could overrule its precedent on this point. Which avenue will and should the plaintiff pursue?  En banc Fifth Circuit review (and overruling) allows Wilson to avoid Heck and pursue her claim. But it does not resolve the broader circuit split; even if the Fifth Circuit changes its position, five other circuits continue to deny relief to plaintiffs in Wilson's shoes.* Much depends on what Wilson and/or her attorneys want to achieve--a remedy for her in this case or a broader change in the law. I guess this case may offer an interesting example of the occasional gap between cause lawyering and individual representation.

[*] The Seventh Circuit went the other way--it moved to the  "Heck applies" position in 2020 after years of allowing plaintiffs to avoid Heck where they diligently pursued the federal issues diligently and lost the opportunity to pursue habeas through no fault of their own.

2) Wilson's Other Options. The court fails to mention that Wilson had other options or whether she attempted to take advantage of them. Heck lists several ways to obtain favorable termination, including where the conviction has been "expunged by executive order, [or] declared invalid by a state tribunal authorized to make such determination." Lower courts have held the former to include pardons and executive clemency, at least where the pardon makes clear the basis and why it reflects favorable termination. Did Wilson seek a pardon? Alternatively, did she ask the state trial court to vacate the conviction? Neither the complaint, magistrate report, district court opinion, or Fifth Circuit opinion say so. Either would provide the needed favorable termination, mooting the question in this case of when favorable termination applies.

From the standpoint of § 1983's history, those options are unacceptable because they require plaintiffs to rely on state-law processes, whereas § 1983 reflects congressional distrust of state courts and state institutions; Souter makes this point in his Heck concurrence. At least in this case, however, I would expect even Greg Abbott to be receptive to a pardon; the optics and politics seem obvious.

Posted by Howard Wasserman on December 15, 2023 at 03:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, December 06, 2023

Harvard Hillel responds to President Gay

Harvard Hillel was not pleased with university President Claudine Gay's testimony, especially her answer about "context" to Stefanik's question. It sent the following email:*

[*] For those wondering, since I did not go to Harvard: I donated to Harvard Hillel in Dan's memory years ago. One cannot escape their mailing list.

Here is the key paragraph:

We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 

Again, this errs as matter of basic U.S. free speech law. And note the move--in the first sentence it is incitement of violence, in the second it is threatening. But with more--- context---nothing in this paragraph is legally accurate.

In fairness to Hillel, its mission is different than that of members of Congress or attorneys; it acts on commitments other than free speech. But if politics is the art of the possible, Hillel would be better served by recognizing and working within the limitations that free-speech commitments impose, rather than denying they exist and thus demanding what a university or government cannot give.

I reprint the email in full after the jump.

Dear Harvard Hillel Community,

 

Earlier today, Harvard President Claudine Gay testified before Congress about rising antisemitism at Harvard. When pressed during her testimony, President Gay repeatedly equivocated, refusing to characterize calls for the genocide of Jews as a breach of Harvard’s code of conduct, instead saying the offense “depends on the context.” 

 

President Gay’s refusal to draw a line around threatening antisemitic speech as a violation of Harvard’s policies is profoundly shocking given explicit provisions within the conduct code prohibiting this kind of bullying and harassment.

 

We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 

 

We do agree with President Gay’s testimony that education on antisemitism is urgently needed at Harvard. Harvard Hillel is ready to work with the administration to bring robust education and training on the history of the Jewish people and the evolution of antisemitism to every audience at Harvard — administration, faculty, staff and students.   

 

We will continue to hold the University administration accountable to make Harvard a place that Jewish students can learn, live, and thrive without fear and intimidation. 

Posted by Howard Wasserman on December 6, 2023 at 10:16 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 22, 2023

PJ as a chilling tool

I wrote earlier this month about the Tennessee lawsuit against Kathy Griffin and how the many who believed personal jurisdiction was lacking allowed their substantive views to affect their jurisdictional views. It was possible, of course, that forcing a speaker to defend nonsense defamation claims in a distant forum adds to the chilling effect and the goal of silencing speakers.

Thank goodness Elon Musk and Twitter (never X) can illustrate the point with this tortious interference lawsuit in the Northern District of Texas against Media Matters and reporter Eric Hananoki, over an investigation into Twitter allowing ads to run next to antisemitic content, after which several major advertisers withdrew (for the moment) from Twitter.

Twitter is a Nevada corporation with its principal place of business in California. Media Matters is a D.C. not-for-profit with its PPB in D.C. Hananoki is a Maryland citizen. The speech was directed to the world via the MM website and other online and traditional media outlets. The complaint identifies several advertisers who withdrew, none incorporated or having PPB in Texas. The best it can do is that many Twitter users are in Texas and many of the advertisers do business in Texas. Unless they have something else, that will not cut it--there was no "Texasness" to the Media Matters report or to any criticism of Twitter. This is what speech-chilling personal jurisdiction in a speech-chilling BS lawsuit looks like.

Putting a cherry on this as a Civ Pro exam: The Fifth Circuit has held that state anti-SLAPP statutes do not apply in federal court, whereas the Ninth Circuit holds that California's statute does apply in Federal Court.

Posted by Howard Wasserman on November 22, 2023 at 01:17 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, October 06, 2023

Judicial Process and Vigilante Federalism

Judicial Process and Vigilante Federalism, Rocky's and my latest on private enforcement, has been published in Cornell Law Review Online. The essay responds to Jon Michaels & David Noll's Vigilante Federalism.

Posted by Howard Wasserman on October 6, 2023 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, September 09, 2023

The Procedure of Trump (Updated)

Someone on the Civ Pro listserv suggested that one could structure a Civ Pro/Fed Courts course around Donald Trump and his orbit. Today's lesson: Removal and Remand.

1) Judge Jones remanded the Georgia prosecution of Mark Meadows, concluding that Meadows did not satisfy the requirements  of federal-officer removal because neither the charged conduct nor the alleged overt acts related to his office or his official duties (the court never reached colorable federal defense). The court emphasized the absence of an executive role in state elections and the Hatch Act's limitations on federal employees' partisan activities; these defined the outer limits of Meadows' job. Because Trump, and thus Meadows, cannot play a role in state elections, everything Trump did post-election (the Raffensberger phone call, etc.) involved the campaign and his efforts as a candidate, which the Hatch Act places beyond Meadows' official functions. Remand of a § 1442 removal is appealable, and Meadows has appealed.

2) A group of citizens, represented by C.R.E.W., filed suit in Colorado against Trump and Colorado Secretary of State Jena Griswold, seeking to exclude Trump from the ballot under § 3 of the 14th Amendment; Trump removed. Derek Muller and Will Baude agree on the predicted outcome--the federal court will remand because, while there is arguably jurisdiction under § 1331,  plaintiffs lack Article III standing. I will add the following:

    • I think the § 1331 argument is pretty strong. To arise under federal law under Grable & Sons, the federal issue must be necessarily raised, actually disputed, substantial (meaning important to the federal system at a whole), and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. The first three seem obvious here. The last prong looks, in part, to how often the type of case will arise and how many similar cases will land in federal court. So a quiet title action turning on the validity of a federal tax lien will not come up that often; negligence claims based on drug misbranding and attorney malpractice arising from patent work will come up frequently. A dispute over candidate qualifications, especially whether a candidate engaged in insurrection or rebellion, seems more analogous to the tax lien case.

    • The case will be remanded on standing. An individual voter does not have more than a generalized grievance as to who appears on the ballot. Discussions of how to enforce § 3 never mention the several unsuccessful 2008 lawsuits by random citizens seeking to declare Obama ineligible as not born in the U.S.; all were dismissed for lack of standing.

    • The removal problem arises because of the plaintiff's procedural choice to include Trump as defendant. Why did they do that? The relief sought--a declaration of ineligibility and an injunction preventing his inclusion on the ball0t--runs against the secretary, not Trump. Trump has an interest in the case that the secretary may not adequately protect and he may be entitled or permitted to intervene to protect that interest. But there does not seem to be any reason to include him as a defendant in the first instance, which also gave him the power to remove.

Update: Trump filed an unopposed motion to remand after consulting with plaintiffs and recognizing that they lack standing and that removal was procedurally improper (Griswold did not join or consent to removal but had been served, contrary to Trump's initial representation).

3) Paulsen/Baude argue that § 3 is self-executing. The responses/critiques have confused effectiveness with enforcement. Their point is that § 3 creates an extant and enforceable legal obligation--one that does not require congressional action and has not been rendered a nullity by past congressional action or by desuetude. But, as with any legal provision, someone has to enforce that obligation, which usually leads to court; Paulsen/Baude do not claim otherwise. The question is how that occurs, which forms a big piece of Akhil Amar's two-part discussion with Baude and Paulsen). Paulsen in Part II gets to what I believe the right answer--some enforcement action by a state official, followed by some state-law proceeding in state court, followed by (often expedited) review to the state supreme court, followed by SCOTUS review. SCOTUS will get the last word, but the case arrives from state court (as Bush v. Gore did); none of this will begin--or be removed to--federal district court. And, again, that is perfectly fine and consistent with ordinary litigation. As with the controversy around S.B. 8, it is simply not true that the sole or necessary process for constitutional adjudication is an offensive EpY action in federal court.

Posted by Howard Wasserman on September 9, 2023 at 07:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, September 08, 2023

Maybe it is the Handmaid's Tale

Mary Ziegler (UC-Davis, having deliberately escaped Florida) writes in Slate about the impossibility of enforcing the new Texas ordinances against using local roads to leave the state for an abortion. She hits similar themes to what I wrote:

Among the problems with enforcement is the question of how the ordinance and others like it could ever be enforced. How would anyone know if a driver on a road in or out of Texas is driving an abortion-seeker? By setting up a roadblock? Investigating everyone of reproductive age? None of that would be politically palatable—or financially feasible—for a state with a big budget, much less a small town like Llano or a rural county with limited resources.

The possibility, she suggests, is circuitous: "[E]ven if you’re not going to be stopped and arrested while driving a friend to an abortion clinic across state lines, a vindictive partner could find your texts setting up the drive, sue you, and attempt to use geo-tracking data to collect in a civil suit."

That line reminded me of The Handmaid's Tale (the TV show). A flashback (I think from season one) depicts June and Luke trying to escape into Canada. They hire a man near the border, who takes and destroys their phones so Gilead officials cannot follow them. That, Ziegler suggests, is what a woman (and the friend or person who drives her) must do when driving through Llano, Texas on the way to New Mexico.

The Handmaid's Tale outfits at protests and rallies make for fun theater, but I have thought they were overstated. Maybe not, at least in some small details.

Posted by Howard Wasserman on September 8, 2023 at 02:05 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, September 02, 2023

Fugitive abortion seekers

The Washington Post reports on the latest exclusive-private-enforcement efforts from Mark Lee Dickson and Jonathan Mitchell--county and city ordinances prohibiting the use of local roads to obtain a legal out-of-state abortion, enforced through private lawsuits. I have questions.

How does private enforcement work here and how does a plaintiff have the basic information to bring suit? How can a plaintiff know what roads someone took to leave the state? Is he going to follow the woman and her driver through town (and when does that become stalking)? Are they given interdiction authority to find out where someone is heading (which strengthens the argument that "any person" acts under color)? Will local law enforcement help (which provides a target to sue in an offensive pre-enforcement action)? How can a plaintiff know they took these roads on the "abortion trip" as opposed to some other time. What constitutes one trip and how do you identify the purpose of that trip--if a person drives on those roads on Monday but does not leave the state for the procedure until Wednesday, has she used the roads to obtain the abortion?

The hard part for rights-holders facing these laws is creating litigation and the opportunity to challenge the law as a defense. Anti-choice activists do not want to sue, because they do not want to provide that opportunity, since the law is clearly constitutionally invalid. Someone needs to be Estelle Griswold. A friendly plaintiff action should be easy heree--"any person" includes anyone anywhere who knows the route a woman took out of state, including any person who supports abortion rights. Or how about a caravan of cars driving through town at once, daring someone in town to sue. Again, it takes time. But these ordinances seem to impose less of a chill than S.B. 8 did.

These private-enforcement laws (what Jon Michaels and David Noll call "vigilante federalism" and "subordination regimes") have, thus far, remained the province of red states. Despite suggestions about the rights blue states could target (something Rocky and I look at in a potential new paper), only California has done something, a half-hearted regulation of ghost guns and assault weapons. This story reminds of another feature of performative cultural-war legislation--the divide between states and municipalities. Red states (notably Florida and Texas, of course) use state law to override the local laws and policies of blue municipalities within the state--Ron DeSantis suspended two elected Democratic states attorneys; Florida's various anti-woke laws aim to override local school-board policies; Texas has stripped cities of the power to establish immigrant sanctuary cities. The Post article mentions blue-state conservative cities near a red-state border (for example, New Mexico cities near the Texas border or Illinois cities near the Missouri border) prohibiting abortion clinics from operating there, thus eliminating a destination for out-of-staters seeking services. Yet Democratic state governments have not taken similar steps to strip municipalities of their local power.

Posted by Howard Wasserman on September 2, 2023 at 02:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, August 31, 2023

Judicial departmentalism in Tennessee (Updated)

In June, a judge in the Western District of Tennessee declared the state's drag-show ban constitutionally invalid and enjoined the Shelby County D.A. from enforcing the law. The D.A. of Blount County, located in the Eastern District of Tennessee, announced intent to enforce the law there with the help of police, including against the organizers and hosts of an upcoming pride event. Organizers of the upcoming event and a drag performer sued local officials and the state A.G. Chris Geidner and FIRE are dismissive of and outraged by the actions of the Blount County officials.

Update: A judge in the Eastern District issued a TRO that includes prohibiting defendants from interfering with Blount Pride Fest, scheduled for Saturday. More below.

Let's break this out.

On the surface, this is an easy case, without full-bore judicial departmentalism. The W.D. Ky. order "ENJOINS District Attorney Steven J. Mulroy from enforcing the AEA within his jurisdiction in SHELBY COUNTY, TENNESSEE." The Blount County prosecutor was not a party to that case and not bound by the injunction. Nor should he be bound by the declaratory judgment, which declares the rights of "the parties." Accepting that non-judicial actors must adhere to judicial precedent (i.e., rejecting departmentalism in favor of judicial supremacy), district court opinions do not establish binding precedent, within the district and certainly not outside the district. The district court's declared the law invalid in general. But the law of precedent dictates the effect of its declaration beyond the parties; the law of precedent says district court decisions are persuasive on other courts. There is no good argument that a district court opinion should have greater effect on executive officials than on other courts. And in a judicial-departmentalist world (where judicial precedent does not bind non-judicial actors), the fact that the precedent comes from an out-of-district trial court means the Blount County DA does not even face the guaranteed judicial loss (and attorney's fees) as if he pursued new enforcement in the face of binding judicial precedent.

On the surface, things are proceeding as they should. One group of rights-holders successfully sued to stop enforcement by one official against them; a second executive official pursued enforcement against a second group of rights-holders; the second group of rights-holders sues the second executive and raises the same (strong) constitutional arguments, including pointing to the prior district court opinion as persuasive authority; and we see what happens. My guess is they would get a TRO or preliminary injunction allowing this weekend's event to occur, have the law declared invalid (because First Amendment law is clear, even without the prior district court opinion on this law), and recover attorney's fees.

Here is where the case gets complex. Blount Pride, the plaintiffs in the second action, argue (¶¶ 85-90 in the Complaint) that the Blount County DA and all state executive officials are bound by the prior DJ. They argue that county DA's act as the state in enforcing state laws, thus the DJ against the Shelby County DA binds all state officials who enforce this law on behalf of the state--the AG (who litigated the first case, although not named as a party) and every county DA. Although they do not specify, I think they are using this for a preclusion argument.

But the scope-of-judgment problem is not about the defendants bound in the first case--it is about the plaintiffs protected in the second case. The first action declared the rights of and protected that plaintiff, Friends of Georges. Although the injunction used typically sloppy language, we know that DJ's declare the rights of "the parties" and injunctions should extend no further than necessary to protect the plaintiff--again, so long the plaintiff (and its members*) are protected, the injunction goes no further. The plaintiffs thus argue that the prior DJ as to Friends of George dictates to every official who enforces the anti-drag law that it is constitutionally invalid and cannot be enforced against Blount Pride.

[*] See also Michael Morley and Andrew Hessick's forthcoming piece arguing against associational standing.

This argument fails on three points:

    1) If Blount Pride believes it is protected by the existing WD Tenn. judgment, its move should be to return to that court for further relief where the DJ has been ignored. My guess is Blount Pride knows its rights had not been declared.

    2) Given # 1, this lawsuit attempts to use non-mutual preclusion--a new plaintiff, not party to the prior case, using preclusion against a prior party. But governments (and government officials sued in their official capacities) are not subject to non-mutual preclusion.

    3) The preclusion argument ignores Doran--"[N]either declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute." That is this case. The prior DJ and injunction stops enforcement of the anti-drag law "with respect to" Friends of George and its members; it cannot directly interfere with enforcement of the anti-drag law against anyone else, such as Blount Pride. Even if every DA and the AG were parties to the first case, that judgment has no direct effect on the efforts to enforce the law against new individuals.

Michael Dorf wrote a post considering what it means to say § 3 is self-executing:

However--and this is an obvious but crucial point--that does not mean that it is literally self-executing. State and local election officials who attempt to place Donald Trump's name on a primary or general election ballot will not find their hands stayed by a mysterious force field or a lightning bolt.

Section 3 is self-executing in the way that other self-executing provisions of law are, not in the way that laws of nature are. To say that Section 3 is self-executing is to say only that government officials can and indeed must give it effect even absent implementing legislation.

I would add that effect will be given when disputes--likely multiple disputes--over attempted application reach court for the court to resolve.

We can say the same about the First Amendment. No mysterious force field or lightning bolt stops the Blount County DA from attempting to enforce the anti-drag law, even if the First Amendment protects drag performance. When the DA and a drag performer dispute whether the law is valid, the case must move to court to resolve that particular dispute. That is what happened when Friends of George disputed with the Shelby County DA. It now happens separately when Blount Pride disputes with the Blount County DA.

Again, things in Tennessee are playing as they should within the judiciary--certainly if you are a judicial departmentalist and even if you are a judicial supremacist. Adjudicating constitutional rights requires litigation. That process is long and cumbersome and not as clean as the First Amendment "protects your right to dress and perform in drag" and "First Amendment protections apply everywhere." But it gets where we are supposed to be.

Update: Two words on the new TRO. First, as always, the court overdid the order, prohibiting defendants from "enforcing, detaining, arresting, or seeking warrants or taking any other action to enforce or threaten to enforce T.C.A. § 7-51-1407 pending further order of this Court," without limitation to the plaintiffs (the festival organizers and one drag performer). This is not a class action and such breadth is not necessary to protect these plaintiffs.* Second, the court in no way believed that the prior district court opinion controlled. The court called the opinion "well-written, scrupulously researched, and highly persuasive," "well-reasoned," providing "an adequate basis for [a] decision," and reflected the analysis "the Court is likely to adopt" in this case. But--contrary to plaintiffs' arguments and shouts from FIRE, Geidner, and others--defendants' enforcement threats did not violate or ignore that order, nor did defendants do anything a priori wrong in threatening enforcement.

[*] A few years ago, I spoke (with Suzette Malveaux) to the National Association of Attorneys General about universal injunctions. A point I thought of, but did not get a chance to make, is that they, among all litigants, should be circumspect on this. While they may love universality when suing the federal government, universality could and would come back to bite them as defendants in challenges to state law. That point, unmade, stands.

Posted by Howard Wasserman on August 31, 2023 at 10:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 23, 2023

303 Creative as "fake case" (Updated)

I have never understood the "fake case" criticism of 303 Creative. The fact that Smith had never designed a wedding site or been asked to do so and the supposed fake email request from a same-sex couple struck me as red herrings.

In attempting to write (without success, thus far) on the case, I looked at the lower-court orders. The district court denied standing because Smith could not show that any couple, much less a same-sex couple, would seek her services (this is where the notorious email comes in). The court of appeals reversed, relying on Susan B. Anthony List, the controlling case on pre-enforcement First Amendment challenges that the district court did not cite. SBA adopts a forgiving approach, at least in First Amendment cases--plaintiff must show "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Smith satisfied the first prong because "[a]lthough Appellants have not yet offered wedding website services, Ms. Smith has been employed as a graphic and web designer in the past. Appellants have also provided clear examples of the types of websites they intend to provide, as well as the intended changes to 303 Creative's webpage." The court would not assume that, if Smith offered the intended wedding-site services, no customer would request her services or that only opposite-sex couples and no same-sex couples would do so. To require the latter proof would eliminate pre-enforcement challenges, requiring rights-holders to violate the law and create active enforcement situations. That all seems right to me.

Standing's ideological drift increases daily--the left wants to ratchet it up and the right wants to swing open the federal courthouse doors. But imagine A wants to open a drag club in Tennessee--she has not begun business, but has run clubs in the past and lays out her business plan for the club. I imagine critics of 303 who support LGBT+ rights would want that business owner to be able to file a pre-enforcement action and not be forced to open the business, put on a show, and have some unknown customer complain.

Update: As if on queue , Richard Re has an essay (forthcoming in Notre Dame Law Review Reflections) showing why the criticisms are wrong, if one accepts pre-enforcement litigation, and how the case indicates an ideological realignment on standing.

Posted by Administrators on August 23, 2023 at 01:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 02, 2023

Page Limits?

At SEALS last week, I watched an interesting panel on SCOTUS credentials. Panelists were Ben Barton (Tennessee, author of The Credentialed Court) and Renee Knake Jefferson (Houston) and Hannah Brenner Johnson (Cal Western), co-authors of Shortlisted). Ben mentioned the absurd lengths of recent SCOTUS opinions, which he attributed to the changing (and homogeneous-in-some-respects) identities of the justices and their workloads. Ben suggested the need for word-or-page limits on SCOTUS opinions, just as the Court imposes word-or-page limits on the parties.

I agree there might be some merit to this. Here is the question: Could Congress impose that requirement?

Obviously Justice Alito would say no. Now how about the rest of us who actually work with the Constitution's text and structure. Does the "judicial power" and Klein's principle that Congress cannot tell the Court how to decide a case include how the Court writes and structures its opinions resolving those cases? Is opinion length akin to the sources of law the Court can rely on (e.g., requiring originalism or prohibiting international law)?

Leaving comments open for thoughts.

Posted by Howard Wasserman on August 2, 2023 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (6)

Monday, July 31, 2023

Peak scope-of-injunction confusion

Judge Presnell (M.D. Fla.) may have produced the singularity of scope-of-injunction confusion in refusing to narrow-and-stay his injunction prohibiting enforcement of Florida's anti-drag law. The plaintiff is the owner of an Orlando restaurant that presents drag performances; the court preliminarily enjoined state officials (properly) from bringing "any enforcement proceedings" (improperly). The state sought to stay the injunction to the extent it went beyond the plaintiff--which Presnell describes as "neuter[ing]" the injunction.

Presnell emphasizes the law's facial invalidity in justifying the scope of the injunction. In doing so, he commits several category errors.

• The court relies on overbreadth cases allowing rights-holders to challenge a statute because of the statute's broader effects. But First Amendment overbreadth does not expand the scope of the court's order. It allows a rights-holder whose speech could be constitutionally regulated by the challenged law to raise the law's constitutional invalidity because it would be constitutionally invalid as to someone else's speech. Overbreadth allows a party to make constitutional arguments and to gain judicial relief based on those arguments about how the law affects non-parties. But nothing in that doctrine extends the judicial remedy to those non-parties; it merely gives the party additional arguments.

    Many overbreadth cases are not § 1983 offensive pre-enforcement actions; they are enforcement actions in which rights-holders raise the First Amendment as a defense (despite the defendant engaging in unprotected activities). Although the overbreadth arguments are the same, no one believes that an order dismissing a state enforcement action (e.g., a prosecution of the corporation or an attempt to strip its liquor license) protects anyone beyond that party.

    Here lies the benefit of Henry Monaghan's justification for overbreadth--valid law due process. Due process requires that any law be constitutional valid before it can be enforced against anyone, even if those constitutional defects do not affect the party to the case. This explains why an Carol Anne Bond could raise federalism defects in a chemical-weapons ban.

• I am not entirely sure why the court went the overbreadth route here. Nothing the plaintiff wants to host in its restaurant falls outside constitutional protection--it is not obscene or obscene-as-to-older-minors; this is not a case of a plaintiff arguing "my speech is unprotected but the law reaches other people's protected speech." The law is overbroad in the sense of not narrowly tailored, but that is a different thing.

• The court relies on Califano v. Yamasaki as to the availability of facial challenges. But it ignore the parts of Califano that the injunction should provide "complete relief to the plaintiffs." However constitutionally invalid the law might be or however broad the constitutional arguments he can make, the remedy benefits the plaintiff. And allowing continued enforcement of this law against others does not deny the plaintiff complete relief.

• The court conflates, in the most explicit language I have seen, geographic and party scope. The court says the following:

    • Responding to Eleventh Circuit doubts about so-called nationwide (but really universal) injunctions, the court says this "injunction is neither nationwide, nor does it pertain only to a limited class of individuals."

    • This law is not limited to a discrete universe of plaintiffs; it could apply to the vast majority of Floridians.

    • "To limit Defendant’s enforcement of the Act only to Plaintiff would subject everyone else in Florida to the chilling effect of a facially unconstitutional statute. Consequently, a statewide injunction which includes non-parties accords with the extent of the violation established."

The court expressly conflates nationwide/statewide and university. Every injunction as to a federal law is nationwide and every injunction as to a state law is statewide--the injunction prohibits enforcement of the law against the plaintiff every place in the nation/state that plaintiff goes.* Thus, of course this injunction is and should be  statewide--Florida cannot enforce this law against any restaurant that HM Florida, LLC owns and operates. But Presnell issued a universal injunction, one that protects everyone everywhere; that is the problematic piece of this.

[*] And out of state, but the protection against that comes from the limits of a law's extraterritoriality, not the injunction.

Again, this is why nomenclature matters and why the wide adoption of "nationwide" confuses the analysis. This injunction suffers the  identical defect as the Mifepristone or student-loan or sanctuary-city injunctions against federal laws and regs--it protects beyond the plaintiffs without class certification. But because we have used "nationwide" to describe those, Presnell could purport to distinguish those cases and thus the doubts about those injunctions--"those were nationwide injunctions, whereas this injunction is statewide."

• On the court's reasoning, the more people subject to a law, the more people whose rights the law infringes, and thus the more proper a universal injunction. That means that universal injunctions should be the norm, at least for laws of general applicability. But that would undermine the principle that enjoining a prosecution as to one person leaves the state free to prosecute others. And it renders FRCP 23(b)(2) useless--if a state can enjoin enforcement against everyone subject to a law when one person sues, no plaintiff would ever need or want to certify a civil-rights class.

• This also demonstrates how universal injunctions allow individual judges to arrogate a great deal of power, at the expense of other courts--to play constitutional hero. Yes, this law chills the speech of many, many people. The remedy for that is for any chilled speaker to sue and obtain an injunction protecting itself against enforcement (as the plaintiff did here) and for the opinion in one case to guide future courts handling future lawsuits from other speakers asserting their rights and seeking a remedy that protects them. If Presnell is right about the law's validity, his opinion in this case will persuade other judges to reach the same conclusion and issue injunctions protecting future plaintiffs. Moreover, if Presnell is wrong about the law's constitutional validity, his single order deprives any other judge or court from the opportunity to address that question.

Bad all around. While I hope the 11th Circuit affirms that the drag laws are constitutionally invalid, I also hope it corrects as to the scope of the injunction. Meanwhile, I wish courts would get this stuff right so I do not have to keep defending the authoritarians in Florida's government.

Posted by Howard Wasserman on July 31, 2023 at 02:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, July 22, 2023

Belkin & Tushnet endorse judicial departmentalism

Aaron Belkin and Mark Tushnet authored an open letter urging Pres. Biden to pursue "popular constitutionalism" where "if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations." They explain:

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

Belkin and Tushnet are describing what Kevin Walsh labeled and I have pursued as "judicial departmentalism." The President can and should pursue a constitutional interpretation at odds with the Court's precedent. The Dred Scott reference is the tell. Lincoln argued not that Dred Scott was free or that he could disregard the judgment in that case, but that he could act contrary to the Court's opinion about the rights of enslaved persons or the constitutional validity of the Missouri Compromise.

The recent equivalent would be continuing to pursue affirmative action in higher education (outside Harvard and UNC) and elsewhere. Belkin and Tushnet push that point:

President Biden could declare that the Court's recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong.

They lose me on that last point. I like the idea that the President should explain his intention and why, so the public sees and measures the competing constitutional approaches. But I do not agree that the President can (or should) do this only where the Court's interpretation is "egregiously wrong." That retains a whiff of judicial supremacy--the Court gets the last word except in some unique and extraordinary circumstances.

Better to say the President can pursue his competing interpretation in all cases where he believes appropriate. The limiting principle on the power (which Ilya Somin argues is absent) is not the egregiousness of the case. The limiting principle comes from the inevitable litigation challenging the President's actions and the likelihood that the Court will adhere to its view and reject the President's view in issuing a new judgment in a new case. And I do not read Belkin and Tushnet to argue that the President can ignore a judgment in a specific case.

Of course, while Democrats talk about whether to do this, Republicans do it. The Alabama legislature enacted  a new legislative map that, like the map declared invalid Allen v. Milligan, contains one (rather than two) majority-Black districts. This has liberals up in arms about a return to the 1960s and Alabama ignoring the Supreme Court. But isn't this what Belkin and Tushnet argued for?

Accepting that government can ignore an opinion but not a judgment, the answer depends on what we understand as the "judgment" in Allen. Was the judgment that Alabama must enact a map with two majority-Black districts because § 2 requires two such districts, given the population in Alabama? Or was the judgment that Alabama's prior map violated § 2 and that Alabama must enact a new map that conforms with § 2, even without a second majority-Black district (the enacted map has a second district that is about 40 % Black)? If the latter, Alabama is within its power (as Biden is under the Belkin/Tushnet argument) in enacting what it believes to be a proper map and triggering a new round of litigation. Alabama might (will?) lose that litigation, if the Court believes Allen's logic and reasoning requires a second district. But that does not mean Alabama crossed the line into defying the injunction.

Posted by Howard Wasserman on July 22, 2023 at 12:32 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 12, 2023

Stupid bigots, smart(er) bigots, and 303

The owner of a Michigan hair salon announced that she would not serve trans customers, advising them to go to a pet groomer. The public response caused her to take her social media private.* From the left, the theme is "what hath 303 wrought?" From the right, the theme is "stop overreacting or misconstruing 303--the plaintiff there and the Court disavowed refusal to serve based solely on identity."

[*] The public exercising their First Amendment rights to criticize someone's offensive speech and conduct? Or censorship and cancel culture? You decide.

As framed, this falls outside any possible good-faith application of 303, because she described it in terms of the customer's identity as trans--a categorical refusal to serve a person because of that person's identity that the Court disclaimed. Some respond with, essentially, "Lower Court Judges Gone Wild"--forget what 303 said, this is what crazy business owners will try to do and what courts in red states will allow them to get away with.

But I do not believe this case depends on a parade of horribles. Instead, it requires a smarter bigot with a better framing. Imagine: "Through my hair styling customized to each client, I use my unique expressive artistry and work closely with each client to help them express themselves and the image they wish to present to the world. And by giving a feminine hairstyle to a trans woman (whom I believe a man as a matter of biology and biblical teaching), I am compelled to send a message that this person is a woman, something I reject." That does not sound meaningfully different from Lorrie Smith making a web site telling the marriage story of a same-sex couple and thereby being compelled to send a message that two people of the same sex can marry.

Dale Carpenter offers a hopeful take on 303: It applies to products and services that are custom-made and expressive where the objection is to the message sent within the product or service. That seems to cover hair styling--it is creative and thus expressive and every hair cut is unique to that person. Perhaps it depends on whether the stylist insists that her styling match perceived gender--she will not give a "male" haircut to a cis person; this might separate the refusal of service from the client's trans identity. Or on the fact that once the client leaves the salon, the stylist's participation is not presented to the world, contra the web site that identifies 303 as the creator.

I appreciate Dale's attempt to read the decision narrowly and agree that the demand for line-drawing in hard cases is not unique to this case. I think this case shows that intelligently framed objections could cut a large swath.

Posted by Howard Wasserman on July 12, 2023 at 01:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Sunday, July 09, 2023

Fighting universality

Jeffrey Sutton of the Sixth Circuit has been a leading critic of universal injunctions. He returned to that in an order staying the injunction barring enforcement of Tennessee's prohibition on gender-affirming medical care. The majority held that the plaintiffs were unlikely to succeed on appeal on their equal protection or due process claims. The "fraught task of justifying" universal relief reenforced the need for the stay:

District courts “should not issue relief that extends further than necessary to remedy the plaintiff’s injury.” Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023). The court’s injunction prohibits Tennessee from enforcing the law against the nine challengers in this case and against the other seven million residents of the Volunteer State. But absent a properly certified class action, why would nine residents represent seven million? Does the nature of the federal judicial power or for that matter Article III permit such sweeping relief? A “rising chorus” suggests not. Doster v. Kendall, 54 F.4th 398, 439 (6th Cir. 2022); see, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring); Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (Gorsuch, J., concurring); see also Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 457–82 (2017). Article III confines the “judicial power” to “Cases” and “Controversies.” U.S. Const. art. III, § 2. Federal courts may not issue advisory opinions or address statutes “in the abstract.” California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). They instead must operate in a party-specific and injury-focused manner. Id.; Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). A court order that goes beyond the injuries of a particular plaintiff to enjoin government action against nonparties exceeds the norms of judicial power.

The scope issue has arisen in other district court decisions declaring invalid these care bans. District courts have issued broad injunctions despite obvious opportunity for narrower relief. The order universally prohibiting enforcement of Kentucky's ban is in obvious trouble for this and for substantive reasons.

Posted by Howard Wasserman on July 9, 2023 at 12:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 05, 2023

Injunctive absurdity

Judge Doughty of the Western District of Louisiana found that federal jawboning of social media sites with respect to COVID, the 202 election, and Hunter Biden likely violates the First Amendment and enjoined hundreds of federal officials (including all of State, HHS, and DOJ) from engaging in a whole range of speech urging social-media companies to remove material. Some thoughts:

• He finds that Missouri and Louisiana have standing, in part, on behalf of their citizens' speech rights, even though states cannot exercise parens patriae standing against the federal government. The court also cannot say that the sites removed speech because of government coercion or that they would not have removed the speech without government action, which should be essential to traceability and redressability. And to the extent the evidence is unclear, the plaintiffs bear the burden of establishing standing so the uncertainty should go against standing.

• The line between lawful government speech and problematic jawboning or coercion is difficult. Judge Doughty makes no effort to engage that question or draw that line. He offers pages of examples of communications between government social-media companies in Newsmax-level conspiratorial tones, but does not explain where the line is or when some communications cross the line. Some examples lack any direct communication between government and the companies. For example, the court offers Anthony Facui's public media statements and congressional testimony criticizing hydroxychloroquine as a COVID treatment followed by social-media sites removing certain videos. Apropos the point above, the court says Facui may have spoken with sites, but does not remember. Again, however, the plaintiffs bear the burden of showing communication and causation.

• The court finds coercion, in part, because much of the targeted speech is "conservative." But viewpoint discrimination is irrelevant to the coercion line. Coercion is coercion regardless of any viewpoint preference--government engages in impermissible jawboning regardless of whose speech it targets. On the other hand, non-coercive government speech can be as viewpoint discriminatory as the government wants to be.

• The injunction is absurd in its breadth. From the binding side, it binds hundreds or thousands of officials. It prohibits officials from "urging" or "encouraging" social-media companies to adopt or change content-moderation guidelines or to do anything with "protected free speech" on their sites.

• The injunction is internally inconsistent; it swallows itself, in a way one commentator describes as the judge wanting to have his cake and eat it. After listing all the "protected" speech the government cannot encourage or urge sites to remove, the court limits the injunction to not reach "permissible government speech promoting government policies or views on matter of public concern" (such as appearances on TV to discuss the effectiveness of medical treatments, perhaps?). And it does not reach speech "informing" social-media companies of "threats that threaten the public safety or security of the United States;" "postings intending to mislead voters about voting requirements and procedures;" and  efforts to "detect, prevent, or mitigate malicious cyber activity." The line between "informing" and "urging" or "encouraging" is illusory and the court never attempts to define it. In any event, much of the speech covered by the injunction falls within the categories excluded by the injunction and vice versa.

For example, speech threatening the public safety of the United States retains constitutional protection unless it is a true threat or incitement, which most of the speech on these sites is not. So at the same time the injunction allows officials to inform social media companies of speech that threatens public safety, it cannot urge companies to do anything about that speech.

• I guess Republican officials now like universal injunctions, because this defines the concept. The plaintiffs are two states and about five individuals; the injunction prohibits government from taking steps to urge sites to remove the speech of any person on any site from any source. As always, the injunction could have been particularized to these speakers, those two states, and the citizens of those two states.

• Compounding the universality problem, the court refused to certify a 23(b)(2) class, because the plaintiffs had not presented a "working class definition." This demonstrates, from two directions, how universality undermines Rule 23(b)(2). Class certification is pointless and unnecessary if individual plaintiffs can obtain relief for an entire class of possible speakers. And if the court cannot define an appropriate class of speakers, it should not issue an injunction protecting every would-be member of that class.

Some free-speech advocates have argued that the federal government's conduct--from both the Trump and Biden Administrations--has crossed some lines. But this absurd injunction is not the answer.

Posted by Howard Wasserman on July 5, 2023 at 03:22 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 03, 2023

303 and SB8 (Update)

I have not gotten around to reading 303 Creative or commenting on the First Amendment analysis. I want to address the standing issues not addressed in the case but which have entered the conversation.

Liberal critics have decried this as a "fake" case because no same-sex couple asked Lorie Smith to design a web site for their wedding. The record includes a declaration about one same-sex couple that did request a wedding page, but that story appears false--one of the men is married to a woman and played no role in the case. Thus, the argument goes, Smith and 303 lacked standing, but the Court (as its liberal conservative (interesting mistake) majority is wont to do) ignored that to reach out on an issue and hand a victory to a religious-conservative cause.

Apart from my usual views about standing, this should be a non-issue. Smith brought an offensive pre-enforcement challenge, so she need not show actual violations of the law or actual enforcement of the law against her--the whole point is to be able to challenge the law without violating it or risking legal sanction. She had opened a web design business and intended to do wedding sites; state law proscribed her desired conduct (decline business from same-sex couples and announce that intent); and the state was likely to enforce the law against her if she announced and followed that practice. That should be enough for a pre-enforcement action, especially in a free speech case (where courts apply standing in a more-forgiving way). Moreover, this looser approach benefits minors challenging state prohibitions on gender-affirming care--I do not want courts hanging those cases up on "this plaintiff alleges that she wants gender-affirming care, but has not yet seen a doctor or has not yet been prescribed puberty blockers."

Some link 303 and SB8 and find political motivations in the Court's differential treatment--303 dramatically expanded a species of free-speech right through an expansive approach to pre-enforcement litigation, while the Court's restrictive approach as to SB8 eliminated all pre-enforcement challenges to an abortion restriction. But the cases are not comparable. 303's supposed standing problem involves injury--because Smith had never been asked to make a wedding web site for a same-sex couple, she incurred no injury (no genuine risk the state would enforce the law against her). The standing problem in SB8 went to traceability and redressability--the lack of public enforcement meant no public official caused that injury and the court could not enjoin anyone to stop enforcement. 303 does not reflect a distinct approach to pre-enforcement litigation. Had Colorado adopted purely private enforcement for its public-accommodations laws,* there is no reason to believe the Court would not have rejected the case for the same reasons it rejected Whole Women's Health.

[*] Perhaps Blue states seeking to mimic SB8 for liberal causes and against disfavored constitutionally protected activity should consider this issue, rather than obsessing about guns. I wonder what Jonathan Mitchell, Texas officials, and conservative commentators would say.

Update: I do not intend to minimize the issue of the false evidence. If that turns out to be the case, Smith and her lawyer should be on the hook for sanctions. It does not change the appropriateness of the case, because the case was sufficiently real and live without that further evidence.

Posted by Howard Wasserman on July 3, 2023 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 30, 2023

Final orders list

The Court released its clean-up order following the release of opinions, granting cert in several cases. Several things of note:

• No decision on the NetChoice cases (challenges to Texas and Florida content-moderation laws). This is somewhat surprising, since the circuit split and the First Amendment implications make a grant inevitable.

• The Court denied cert. in Cooper Tire & Rubber v. McCall, a Georgia case raising the Mallory issue of consent-by-registration personal jurisdiction. Our guest bloggers on Mallory--Rocky Rhodes and Andra Robertson--discussed the Court's perhaps-strategic choice to use Mallory rather than Cooper as the vehicle to resolve the issue. But what to make of the Court denying cert in Cooper rather than GVRing. As Rocky and Andra explained, Georgia had a stronger interest in Cooper than Pennsylvania had in Mallory--the defendants in Cooper were from Georgia, whereas no one in Mallory had any case-related connection to Pennsylvania. So if consent jurisdiction is valid in Mallory, it must be valid in Cooper. At the same time, the Court did not see fit to allow the Georgia Supreme Court to address the dormant commerce clause issue that Justice Alito emphasized in his (controlling??) concurrence-in-the-judgment.

• Justice Sotomayor called for reexamining qualified immunity in two dissentals (Justice Jackson would have granted cert in one, although she did not join the statement) from the Eighth Circuit. She raises the usual litany of criticisms of the doctrine and how lower courts have applied it.

I hope to write about 303 Creative and the standing in the student-loan cases this weekend.

Posted by Howard Wasserman on June 30, 2023 at 03:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)