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)
Thursday, June 29, 2023
Mootness and jurisdiction in Moore
I am late to the conversation about Moore v. Harper, where the Court found the case alive (over the dissent of Thomas, Alito, and Gorsuch) and (mostly) rejected the independent state legislature doctrine. Three thoughts on the jurisdictional issues. (Long post ahead).
1) I still am not sure where I land on mootness. I do not believe--contra Justice Thomas and Josh Blackman-- that the Chief fell into the writ-of-erasure fallacy. Thomas fills Part I of his dissent with (correct) descriptions of how courts enjoin actors from taking action, do not act against laws themselves, and "do not render 'judgments' that toggle statutes from 'operative' to 'inoperative' and back again, as if judicial review were some sort of in rem jurisdiction over legislative Acts."Here is the procedural history: The state trial court held that partisan gerrymandering is a political question under the state constitution. The North Carolina Supreme Court reversed; it made three legal determinations--1) partisan gerrymandering is justiciable; 2) ISL is nonsense; and 3) the 2021 electoral maps were invalid partisan gerrymanders--and entered a judgment prohibiting use of those maps. The state legislators appealed that decision to SCOTUS. Following SCOTUS' cert grant, NCSCt affirmed the trial court's decision rejecting a remedial map. On rehearing (and following a change of court personnel), NCSCt withdrew its opinion affirming rejection of the remedial maps, "overruled" its original decision (the one sitting before SCOTUS), and dismissed the action with prejudice. But, the majority says, the state court never reinstated the original maps; its decision started everything over, allowing the NC legislature to enact whatever maps it chose. That includes enacting a new law adopting the 2021 maps.
Despite some loose language in the Chief's opinion about "presently operative statutes," I do not believe he made the mistakes Thomas accuses him of making. Rather, I think the point of departure is what happens to a preliminary injunction when the action is later dismissed. NCSCt issued an order--do not use the 2021 maps; that order was on review to SCOTUS. The court overruled the basis for that order in concluding that partisan gerrymandering is a political question and allowing the legislature to do what it wants going forward. But it did not authorize use of the 2021 maps authorized by the 2021 law.
Does that matter?
2) While I agree with Thomas' explanations for the role of courts (while remaining unsure of his conclusion), I question this:
[A]n unconstitutional provision is never really part of the body of governing law,” for “the Constitution automatically displaces [it] from the moment of [its] enactment.” Collins v. Yellen, 594 U. S. ___, ___ (2021) (slip op., at 35) (emphasis added). Thus, when a court holds a statute unconstitutional, it is emphatically not depriving it of any legal force that it previously possessed as an Act. The court is only deciding “a particular case” “conformably to the constitution, disregarding” a statute that cannot “govern the case” because it is already “void.” Marbury, 1 Cranch, at 178; accord, Bayard v. Singleton, 1 N. C. 5, 7 (1787) (holding that the unconstitutional “act on which [a party’s] motion was grounded . . . must of course, in that instance, stand as abrogated and without any effect”). “That is the classic explanation for the basis of judicial review” set forth in Marbury and Bayard, and it remains “from that day to this the sole continuing rationale for the exercise of this judicial power.” Mackey v. United States, 401 U. S. 667, 678 (1971) (Harlan, J., concurring in judgment in part and dissenting in part).
That works for defensive litigation. When the state prosecutes Johnson for burning a flag, the court disregards the law of prosecution and refuses to allow it to govern the case, thereby requiring dismissal of the prosecution. It does not work for offensive pre-enforcement litigation, in which the federal plaintiff seeks to avoid the case in which the challenged law would govern, by enjoining an official from enforcing that law in the future. A federal court in an offensive action does not disregard the challenged law; it prevents future conduct by a government official with that law. And that conduct may occur outside of court--such as administering elections under particular maps.
3) Mootness aside, Moore also presented issues of SCOTUS jurisdiction under § 1257(a), which is limited to "final" judgments or decrees. Although the state court had decided that ISL does not apply (a federal issue), the case remained ongoing in state court as the parties worked to create new maps consistent with the state constitution. Cox Broadcasting v. Cohn treats as final cases in which the "highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come." Cox identified four circumstances in which a state supreme court order is final despite ongoing state-court proceedings. The majority relied on the second category--"the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state court proceedings."
This is the wrong category. Cox defined this category by citing to Radio Station WOW and Brady v. Maryland. In WOW, the state supreme court ordered the transfer of property from a federal license holder and ordered an accounting; the ongoing accounting did not affect the federal issue (interference with the license), which was tied to the transfer. In Brady, Maryland's highest court* upheld Brady's conviction but ordered a new sentencing hearing; that proceeding did not affect the federal due process rights that Brady argued were violated by a conviction without disclosure of evidence. The key to this category is that the remaining state-law proceedings do not affect the federal issue; nothing that happens eliminates the federal issue, regardless of who wins or how the state courts resolve those future issue. Brady believes his conviction violates due process; that remains alive regardless of the ultimate sentence. The radio station believes the loss of property affects its federal license; that remains alive regardless of the outcome of the accounting.
[*] Then called the Maryland Court of Appeals, changed to Maryland Supreme Court in 2023.
That is not this case. Whether the federal issue remains alive depends on what happens in state court. Imagine (as was the case when SCOTUS granted cert) ongoing state litigation to draw new maps that comply with the state constitution. If the state court approves the legislature's preferred maps, the federal issue (ISL) goes away. The state will not appeal the maps or argue they have unfettered power, because they won and so the scope of their power does not matter; the plaintiffs will appeal the maps on independent-and-adequate state constitutional grounds, but would not argue ISL because it does not help them. if the state court rejects the legislature's preferred maps, the federal issue remains alive--the state will return to NCSCt, NCSCt approves the maps, and the state challenges those maps on ISL grounds. Of course, that takes time and energy, leaving the federal issue unresolved. And that is, in fact, where the case landed: The state won on state-law grounds (partisan gerrymandering is non-justiciable) and any appeal the plaintiffs might have rests on state law, not federal law.
Thus, this case better fits the fourth category, created in Cox:
Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action, rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.
That is this case. The appealing party (legislators) might prevail on nonfederal grounds (as, in fact, they did), depriving SCOTUS of the opportunity to review the federal issue; immediate reversal on the federal issue precludes further state litigation--had SCOTUS adopted ISL, the state wins without having to do anything more. And the delay or elimination of the ISL issue "seriously erode[s] federal policy" by leaving unresolved whether state legislatures can do whatever the hell they want--sure to be an issue in the coming presidential election.
I am not sure why the Chief went with # 2 rather than # 4.
Posted by Howard Wasserman on June 29, 2023 at 01:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Why "universality" better captures the scope-of-injunction problem
Everyone will be talking about the death(?) of affirmative action, but I do not have much legal to add to that conversation. So I am going to use and a few other posts to catch up on some things.
First up, Judge Hale of the W.D.Ky. declared invalid that state's ban on puberty blockers and cross-sex hormones for minors, joining district courts in Arkansas, Tennessee, and Florida. These cases trigger anew the scope-of-injunction problem-- and not well. Judge Hale issued what he called a "facial injunction" and said the following:
The Commonwealth suggests that any injunction should be limited in scope to cover only those plaintiffs who are already taking the drugs in question. (D.N. 47, PageID.514-15) But the fact “that some minors experiencing gender dysphoria may choose not to pursue the gender transition procedures covered by the Act and therefore would not be harmed by its enforcement” does not mean that a facial injunction would be overbroad. Brandt, 47 F.4th at 672; see id. (“The proper focus of the [facial] constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” (alteration in original) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 418-19 (2015))). The Commonwealth notably “fail[s] to offer a more narrowly tailored injunction that would remedy Plaintiffs’ injuries,” id., and as Plaintiffs point out, it would be virtually impossible to fashion one. (See D.N. 52, PageID.1678-79) A facial injunction is therefore appropriate.
This is nonsense. An obvious narrower injunction remedies plaintiffs' injuries--the state cannot enforce the law to prevent these seven minors from continuing and/0r begin receiving treatments, as they choose. That remedies their injuries, regardless of what the state can or does do as to any other trans person who seeks or intends to seek treatment. Protecting these plaintiffs need not help non-plaintiffs (compare an order compelling a school to return a book to the library). Nor is this a case in which the court cannot identify plaintiffs from those similarly situated. Because the trans kids sued on their own behalf (rather than through some organization or a doctor or a state asserting third-party or associational standing), we can easily identify who the injunction protects and who falls outside the injunction.
This and other cases illustrate why it has been a mistake to use "nationwide" to describe beyond-the-plaintiff injunctions. The problem never was confined to challenges to federal laws and regulations. States always could enact broad discriminatory laws and regulations simultaneously affecting large numbers of people, triggering the same issue of who an injunction protects after a court declares those laws constitutionally invalid. But no one would label this injunction "nationwide," while "statewide" adds another term and thus more confusion. That is why universality works best--it captures the idea of an injunction (improperly) extending to everyone who might be subject to enforcement of the challenged law, regardless of the breadth of that universe.
Posted by Howard Wasserman on June 29, 2023 at 11:48 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday, June 24, 2023
Florida Supreme Court displeased with federal judicial overreach
Andrew Warren wants his job as state's attorney back, following his specious and politically motivated suspension by Presidential Candidate (and not-for-several-weeks Governor) Ron DeSantis. But he also wants to avoid the constitutionally mandated process for doing so--a Senate trial--fearing (not without reasonable cause) that the Senate will rubber-stamp DeSantis's decision. He failed in federal district court, in a case I believed never should have gotten as far as it did. And he failed in the Florida Supreme Court, which denied his writ of quo warranto.
The latter was a longshot, as the court explains. Under the Florida Constitution, the Senate is the appropriate "court" for challenging suspension. The Florida Supreme Court exercises limited review to determine that the suspension is facially valid. But court never reached that much, instead denying the writ as untimely, because Warren went through five months of federal proceedings before filing in state court.
In rejecting the writ, SCoFL expressed its displeasure with the federal court and Warren for, in essence, derogating SCoFL and state institutions generally.
As to the district court, the state court said:
Inexplicably, despite having previously dismissed Petitioner’s state-law claim—a claim that challenged the facial sufficiency of the suspension order—the federal district court proceeded to reach various “conclusions” regarding the propriety of the suspension under Florida law. Indeed, the federal district court twice stated that the suspension “violated the Florida Constitution,” id. at D115, D125, and the federal district court purported to decide certain “factual issue[s],” including whether “Mr. Warren neglected his duty or was incompetent,” id. at D117. The federal district court did so even though its “jurisdiction over [Petitioner’s state-law] claim [was] barred by the Eleventh Amendment,” Pennhurst, 465 U.S. at 121, and even though “[i]t is the function of the [Florida] Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer,” Sullivan, 52 So. 2d at 425. At one point, the federal district court challenged the Governor to “simply rescind the suspension.” Warren, 29 Fla. L. Weekly Fed. at D124. And at another point, the federal district court seemingly questioned the ability of the Florida Senate to dutifully carry out its constitutional role in suspension matters, referring to that legislative body as “heavily partisan.” Id.
I made similar points following the district court's decision--there was no reason to decide the suspension's state-law validity to decide that DeSantis had a non-pretextual state-law reason for the suspension that defeated the First Amendment claim.
Warren worsened the situation by arguing that the district court's state-law musings should have issue-preclusive effect. Rejecting the argument, the court stated that issue preclusion cannot turn a loser into a prior winner on discrete issues, while noting that the federal case is on appeal to the Eleventh Circuit and thus not final. I would add that the federal court's conclusions about the suspension were not necessary to the federal judgment, another element of claim preclusion.
Finally, the court points to, and does not dismiss, DeSantis's suggestion that Warren invoked SCoFL as a "backup plan," an unfavorable forum to which he ran late and as a last resort. It does not buy Warren's explanation--state law sets no time limit on a quo warranto application and he filed about one month after the district court dismissed that action--because it does not like the idea that he ran to federal court in the first place.
Posted by Howard Wasserman on June 24, 2023 at 09:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Thursday, June 22, 2023
Getting particularity right, legally and practically
Chris Geidner reports on a Northern District of Florida decision declaring invalid Florida's prohibition on Medicaid coverage for puberty blockers and cross-sex hormones. Reading the order page (declaring the regs invalid; enjoining the named defendant, Jason Weida; and extending the injunction to other officers per FRCP 65(d)(2)), Chris argues that the decision is not only about the plaintiffs, because the first point applies to the law and regulations. This is wrong as a legal matter, although not as a practical matter. It also illustrates where everyone gets the universality/particularity analysis wrong.
As a legal matter, the court's order affects four named plaintiffs--two adults, two minors. That's it. Yes, the court declared Florida's Medicaid laws and regs invalid. But courts do not make legal declarations in the abstract; they declare the rights and other legal relations of any interested party. SCOTUS reaffirmed last week (as to defendants) in Haaland v. Brackeen that a DJ "conclusively resolves '‘the legal rights of the parties.’'" That is, they declare the law and regs invalid as to the plaintiffs. Declaratory judgments are no more universal than injunctions, absent certification of a 23(b)(2) civil rights class , which plaintiffs did not seek or obtain. The court's order binds the named defendant (the secretary of the state health-care agency) and everyone else who might enforce those Florida laws against them--any attempt to enforce against these four people violates the order.
This order does not prohibit anyone bound by the injunction--Weida or other officers--from enforcing these regulations against anyone other than those four plaintiffs. They could deny to John Smith Medicaid coverage of his prescription for puberty blockers or cross-sex hormones, without violating the current court order or risking contempt. But suppose they did that. Smith would join as a plaintiff in the current action and ask the court to extend the DJ and injunction to him; because he is identically situated to the original plaintiffs, the court would quickly grant the request. Or Smith would file his own lawsuit and quickly obtain a preliminary injunction on the strength of the prior decision. Either approach produces a court order that protects Smth as a named plaintiff, such that enforcement of the regs against him violates the order and risks contempt. But it requires that additional step of making Smith a party to the litigation and bringing him under the court's protection.
As a practical matter, on the other hand, Chris is correct--Florida officials will not enforce these regs against anyone; Florida Medicaid will cover these procedures for all recipients, barring a stay or appellate reversal. But the court order, as framed, does not compel that result as a matter of law. Rather, Florida officials will cover the procedures for non-parties because declining to do so wastes everyone's time and money* by triggering the further litigation--certain to succeed--described in the prior paragraph.
[*] Plaintiffs brought this action under § 1983, so § 1988(b) authorizes attorney's fees for prevailing plaintiffs. And each time a plaintiff obtains a new or extended injunction, the state will pay the fees for that process.
Does this matter, if we end up in the same place? In my view yes, because process matters.
Posted by Howard Wasserman on June 22, 2023 at 05:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, June 21, 2023
The inanity of "Debate Me"
Phillip Bump critiques the new demand for "debate," calling it a lazy cop-out and "a cudgel meant not to inform but to entertain, to validate our skepticism and to feed our dislike of our opponents."
As if on cue, we have L.M. v. Town of Middleborough, denying a preliminary injunction against enforcement of the school dress code as to a shirt reading "There are only two genders." The opinion includes this gem at the beginning of the analysis portion of the opinion:
One can certainly argue (particularly with hindsight) that the actions taken by the Defendants were not in the best interest of the students Defendants were seeking to protect. Had Defendants permitted L.M. to wear the Shirt, perhaps he would have listened to and heard other students’ explanation as to why they viewed his message as hostile. Perhaps he would have learned from those students that they do not use the word “gender” to refer to chromosome pairs or anatomy but to identity. As a seventh-grader — a time when students are beginning to consider views of the world that differ from those of their parents — he may have been more open to that understanding if the discussion occurred in school and was not drowned out by the megaphone of the media and the adult protesters outside the school. And in that event, perhaps LM. would have chosen voluntarily to cease wearing the Shirt and the students Defendants were seeking to protect would not have had to enter the school past protesters amplifying L.M.’s words.
This is nonsense.
First, this kid is not open to changing his views, nor is he parroting his parents' views. We know this because the opinion quotes his long social-media post defending the t-shirt as expressing his views and not "targeting" anyone, comparing it to how he feels seeing Pride flags and diversity posters. (Put aside the specious comparison between a message with which you disagree and a message that targets someone's existence and identity). L.M. is locked in and is not going to change his mind if other students "debate" him or civilly challenge his views. In fact, I expect he would scream that he had been targeted (if not canceled) if many students challenged him. Relatedly, I think L.M. has pretty good reason to be pissed at the judge for that statement, which basically suggests that he is parroting his parents views and does not really believe or share them and could be swayed with a bit of the right discussion.
Second, the school does not want to become a debate society--math class is for teaching math and gym class is for sports, not for debating the finer points of gender identity. So the judge's proffered solution--students engaging with L.M. about the error in his views on gender--disrupts the educational process. And even Tinker allows the school to limit student speech to avoid disruption. So the school should allow L.M. to wear the shirt, then allow the educational process to be disrupted--therefore justifying prohibiting him from wearing the shirt.
Third, accepting some essential constitutional commitment to debate, what is the purpose of that debate and who does the debate convince--my interlocutor or my audience? In challenging L.M. on issues of gender, does little Sally seek to convince L.M.? Or does she seek to convince other students that L.M. is wrong? The judge assumed # 1. But that reflects a different understanding of debate and speech, distinct from the marketplace and more-speech visions of Holmes and Brandeis. The question for them was whether a speaker's bad message could be countered and what message the public would accept--neither care whether Abrams or Whitney changed their minds.
Fourth, rather than giving students a chance to debate-and-persuade the Unpersuadable L.M., allowing the t-shirt gives students the opportunity to decide (if they so choose) that L.M. is a provocative jerk and that they want nothing to do with him. Or to criticize him for these views. While I expect L.M. and his supporters would shout "cancel culture," this case illustrates why much of what people deride as cancellation is "more speech." L.M. has a right to express his views--including, I believe, on a t-shirt in school. He does not have a right to speak free of other people adopting negative views of him and acting on those views.
Fifth, the result surprises me. I thought there had been a sea change in t-shirt cases, in which "people feel offended" and "people are talking about and objecting to the kid's t-shirt" was not sufficient. That is, the Tinker framework does not authorize an actual heckler's veto--the school silencing speech because it offends or angers the audience. But the court relied on First Circuit precedent allowing restriction on a showing of disruption or that the speech invades the rights of others. Although the shirt did not target any identifiable person, the shirt invaded the rights of students who identify differently to attend school without being confronted by messages attacking their identities.*
[*] Going back to my first point and to this post, does the judge believe it better for students who identify differently to allow the shirt and compel them to debate their identities, hoping to convince L.M. to change his mind about their humanity?
Posted by Howard Wasserman on June 21, 2023 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Thursday, June 15, 2023
Trump is not a legislator engaged in legislative speech or debate
Republican Rep. Thomas Massie decided that the best way to support Donald Trump was to tweet that "under the Constitution, no member of Congress can be prosecuted for reading aloud on the floor any of the documents Trump allegedly has copies of." Naturally, people jumped on this. So let's be clear:
First, he is correct. The leading Speech or Debate precedent arises from a Senator and his aide reading portions of the Pentagon Papers at a subcommittee meeting and entering 47 volumes into the public record. The Court said "[w]e have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting." That principle applies, even more so, to events on the House floor.
Second, what is Massie's point? The Speech or Debate Clause speaks of Senators and Gravel extends protection to senatorial aides; Trump is neither. And Gravel held that immunity did not protect possession publication of the papers outside of the legislative process--such as in bathrooms at Mar-a-Lago or conversations with reporters in New Jersey. So whatever Massie can do on the House floor is irrelevant to whether Donald Trump mishandled classified documents.
Maybe Massie knows that. He definitely knows that Trump supports do not know that. And that is the point.
Posted by Howard Wasserman on June 15, 2023 at 07:17 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Haaland: Standing, or why didn't the entire case have to come through state court
Haaland v. Brackeen rejected (7-2) a constitutional challenge to the Indian Child Welfare Act. The relevant plaintiffs were the State of Texas and three sets of adoptive, foster, or birth parents; the defendants were the Secretary of the Interior and various federal officials; the lawsuit was filed in federal district court. The Court rejected the challenge to the placement-preference provision for lack of standing, finding that an injunction or DJ as to the validity of that provision would not redress the plaintiffs' injuries; any injuries arose from the action of state judges applying ICWA and state officials enforce state-court orders, none of whom were parties to the case and none of whom were bound by any judgment. That the state officials likely would follow the federal court's opinion does not establish standing; in music to my ears, Justice Barrett wrote "[i]t is a federal court’s judgment, not its opinion, that remedies an injury."
But the Court reached, and rejected, the merits of challenges to the entire statute under the Indian Commerce Clause and under Tenth Amendment anticommandeering to the requirements in involuntary proceedings; to placement preferences; and to certain record-keeping requirements. At least as to the latter two, the Court relied on anticommandeering's unique non-application to state courts, which must apply federal law in all cases before it as the supreme law of the land.
What I do not understand is how these plaintiffs had standing to bring a federal suit in federal district court to challenge any of these provisions on any grounds. All claims suffer the same redressability problems--the plaintiffs suffer an injury when non-party state judges apply ICWA to decide cases and non-party state officials enforce those judgments. So it seems to me this entire case should have had to come through state court--a state family court decides an adoption/placement case applying ICWA; the parents (and the State, if so inclined) argue that ICWA is constitutionally invalid and cannot be applied; the loser(s) appeal through the state system and ultimately to SCOTUS, which decides these constitutional issues in the course of reviewing a state judgment applying that law.
Posted by Howard Wasserman on June 15, 2023 at 06:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, June 09, 2023
§ 1983 enforcement survives, for the moment
The Court decided HHC v. Talevski Thursday, seven months to the day after argument. Here is my SCOTUSBlog analysis. The Court held 7-2 (by Jackson) that Spending Clause enactments are enforceable through § 1983 and that Federal Nursing Home Reform Act ("FNHRA") can be enforced through § 1983. I suppose I understand the delay. Thomas wrote a 36-page dissent tracing the history and evolution of the Spending Clause to argue that spending enactments do not "secure" legal statutory rights, only contractual rights, otherwise such rights violate anti-commandeering. Alito (joined by Thomas) dissented to argue that FNHRA is not enforceable because Congress intended to preclude § 1983 enforcement. Gorsuch and Barrett (with the Chief) joined the majority but added short concurrences.
The title of the posts suggests the reprieve to private enforcement may be temporary. Five justices wrote various things suggesting a narrow approach to private enforcement of Spending Clause laws, if not an intent to eliminate it. Thomas made his position clear. Gorsuch's one-paragraph concurrence spoke of "issues lurking" that petitioners failed to develop--namely, the anti-commandeering concerns Thomas discussed. In other words, Gorsuch might agree with Thomas in a different-and-better-litigated case. Barrett and Roberts went out of their way to remind courts to "tread carefully before concluding that Spending Clause statutes may be enforced through §1983." And Alito believes that a combination of state law proceedings and internal grievances sufficient to preclude federal litigation.
Posted by Howard Wasserman on June 9, 2023 at 09:33 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, June 08, 2023
Policy and Identity
In an article on cancel culture in the Journal of Free Speech Law, Thomas Kelly illustrates cancel culture by arguing that a
"relevant test for today’s college students would be the extent to which they are willing to tolerate speakers who earnestly argue for propositions such as the following:
(1) That people who are currently in the United States illegally should be deported to their country of origin.
(2) That affirmative action should be abolished because it unjustly discriminates against whites and Asians.
(3) That for any adult person, having been born biologically female is both a necessary and sufficient condition for being a woman.
(4) That the fact that different racial groups are incarcerated at different rates does not primarily reflect racial injustice in the criminal justice system but rather that the groups commit serious crimes at different rates, something that is not itself due to racial injustice.
According to Kelly, these reflect four contestable questions. And college students' intolerance for their expression reflects cancel culture--disrespect for free speech and intolerance for competing ideas. Except one of these things is not like the other. Numbers 1, 2, and 4 involve questions of public policy--how government and government institutions should address particular problems (unlawful entry to the country, crime, opportunities to participate in institutions), the best policy choices, and what those choices tell us about those institutions. Number 3 involves a pure question of identity--it denies that trans people exist. A person's existence should not be debatable and should not be a question of policy.
I do not suggest that # 3 enjoys less constitutional protection or that a speaker should be barred from campus for expressing # 3. I do suggest that debating identity cannot be conflated with debating immigration policy or even debating the policy consequences of identity, such as athletic participation. The constant failure to distinguish these--especially as to LGBTQ+ people--is telling.
Posted by Howard Wasserman on June 8, 2023 at 10:07 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Thursday, May 18, 2023
Kagan on Velazquez and Bacon (and Lain on Cortada)
Justice Kagan devotes the final ten pages of her Andy Warhol Foundation v. Goldsmith dissent (begin at p. 25) to illustrating the "dramatic" effects of the majority's (narrow?) approach to the first fair use factor. Using examples in literature, music, and art, she discusses historic examples of work building on prior work; her premise is that that the majority's approach would not see the later work as transformative and thus as fair use, because both create something to be sold.
On pp. 32-34, she compares Velazquez's portrait of Pope Innocent X with Bacon's "Study After Velazque's Portrait of Pope Innocent X" (commonly known as "Screaming Pope").
Miami artist Xavier Cortada's May It Please the Court depicts ten SCOTUS cases originating in Florida; the paintings hang on the walls of FIU College of Law. Here is the piece for Proffitt v. Florida, which riffed on Bacon's painting:
In Painting Constitutional Law (edited with my colleague Matthew Mirow), Corinna Lain (Richmond) wrote a wonderful essay on Proffitt and how Bacon's painting and Cortada's painting explore "pain, imprisonment, isolation and obfuscation," which constitute "larger themes of the death penalty as well."
If Kagan is right that Bacon's painting cannot happen, then neither can this.
Posted by Howard Wasserman on May 18, 2023 at 01:57 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Sunday, April 30, 2023
Challenging private enforcement
Rocky and I discussed this in our SMU piece, but I have been thinking about it more of late.
B8 and other exclusive-private-enforcement (or "vigilante federalism") draw two related-but-distinct objections. They force rights-holders to litigate their rights defensively, cutting off most offensive litigation; while offensive litigation is not constitutionally required, it offers certain advantages, notably not forcing rights-holders to "act at their peril" as a condition of litigating their rights. And they force rights-holders to litigate in state court.
The second objection arises from two limits on federal jurisdiction--the Well-Pleaded Complaint Rule and Article III standing. Both prevent the defendant/rights-holder from removing a state-court action to federal court. Under the WPC, federal jurisdiction requires the federal issue to appear in the complaint; the rights-holder's federal defense does not provide a basis for federal jurisdiction and thus for removal. And laws allowing "any person" to sue cannot be in federal court even absent the WPC, because a random "any person" plaintiff likely does not have Article III standing (even if he might have standing under more forgiving state law).
Of course, both judge-made limits on federal jurisdiction suffer from significant problems. The WPC arguably undermines the purposes of federal question jurisdiction (uniformity, expertise, respect); those needs are present regardless of the procedural posture in which the federal issue arises. A defendant needs expertise for a federal defense as much as a plaintiff needs expertise for a federal claim. Standing is stupid and not really jurisdictional, as I have argued. And even if jurisdictional, Andy Hessick argues that federal courts should apply state standing rules in diversity cases. Without both stupid doctrines, the defendant could remove the vigilante-federalism action and litigate in federal court, where she has a (perhaps) fairer and less-captured forum and a shorter path to SCOTUS.
This does not address the first objection--rights-holders should not be forced into defensive litigation. But the question is what is the real objection?
Posted by Howard Wasserman on April 30, 2023 at 11:09 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, April 27, 2023
More on write-in ballots
Building on Gerard's post, I wrote this in 2016 and this in 2014 about limitations on write-in voting under Florida law (the later post has some useful reader comments addressing Gerard's question). F0rmer Florida Rep. Ileana Ros-Lehtinen wanted to write-in Jeb Bush for president in 2016; I wanted to avoid voting for Ros-Lehtinen in 2014. Florida law requires "write-in candidates" to qualify in advance (so they are not really write-in candidates in the sense Gerard describes). Florida excludes uncontested elections from the ballot because the voter has no choice but the unopposed candidate. Both reflect a prohibition on "let me write in a random name on election day."
Posted by Howard Wasserman on April 27, 2023 at 02:06 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Wednesday, April 26, 2023
Roberts to Durbin: Drop Dead
Chief Justice Roberts "respectfully decline[d]" Sen. Durbin's "invitation" to appear before a Senate committee to discuss the wave of ethics concerns surrounding the Court. The letter included a new statement of ethics principles, signed by the nine Justices. Citing "separation of powers concerns and the importance of judicial independence," Roberts (ever the wannabee-but-incomplete-historian, as per his Year-End Reports) recites a laundry list of the times in which the Chief Justice or President has testified before congressional committees, as all were on "mundane matters of judicial administration." Imagine a student whose answer begins and ends with "this has not happened before on a matter this serious, therefore it cannot happen now."
Of course, my students take class assignments more seriously than the Chief Justice of the United States takes a request from the Chair of the Senate Judiciary Committee about a public controversy that undermines the Court's shaky reputation. Roberts' statement rests on a series of unspoken principles that capture the political and constitutional moment.
• Because the Supreme Court is constitutionally required, it is not subject to any congressional control or oversight. Roberts could put off Durbin on the barest of reasons. Durbin declined to "invite" Justice Thomas because he knew Thomas would refuse to accept. Steve Vladeck has a thread on this, arguing for considering the separation-of-powers issue in its full historical context, not of the uniquely modern-and-unchecked Court.• I do not know how the Court would react if Congress tried to bring back some control--for example, expanding the Court's mandatory docket or reinstating circuit riding (whatever that might mean without the old circuit courts). Would the Justices push back against this rejection of the Court as a complete government in itself, despite the historical pedigree?
• A subpoena is not coming, which is why Roberts does not fear escalation. Committee Republicans will not agree to a subpoena and Durbin lacks the political will to try. Anyway, Roberts would sue to challenge it, arguing that it lacks any legitimate legislative purpose (because of separation of powers and SCOTUS's special place and the historical fact that no CJ has been subpoenaed). At worst, he ties it up until the end of the Congress. At best, no district judge would deny that injunction. Recall Roberts' opinion in Mazars and the deep distrust of congressional (as opposed to judicial) subpoenas. (Side point: I remain unable to square Speech or Debate immunity with the right to pre-enforcement challenges of subpoenas).
• The triumph of the Levinson/Pildes separation-of-parties thesis, introduced in 2006 (another lifetime) but truer than ever. Madison and Hamilton's assumed that Congress would destroy a Chief Justice and Court that rejected Congress' constitutional role in this way--Congress acted as an institution to check other institutions. But the introduction of organized--and ideological--parties destroys that framework. Senate Republicans do not see the (Republican-appointed) Justicses' actions as the problem to be investigated and checked; they see their Senate colleagues' actions as the problem to be resisted, making life difficult for their ideological compatriots in the other branches.
Posted by Howard Wasserman on April 26, 2023 at 10:46 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Monday, April 24, 2023
Social media and state action
The court granted cert in a case from the Ninth Circuit (finding state action) and a case from the Sixth Circuit (finding no state action and taking a very different analytical approach).
Beyond the conclusion, I am concerned for how the Court approaches this. Some lower courts apply a "close nexus" test, which usually applies to purely private actors engaging in private conduct having some government connection or requirement. The analysis here should be different, where the defendant is a government employee/official and the question is whether that official status enabled his conduct. These cases should look more like rogue or off-duty cops, as opposed to labor unions collecting fees through a government-controlled process. It is a subtle difference, but it is more than semantic.
On the other hand, dammit--the publisher said no substantive changes on these edits.
Posted by Howard Wasserman on April 24, 2023 at 10:57 AM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process, Law and Politics | Permalink | Comments (0)
Wednesday, April 19, 2023
Viewpoint discrimination in synagogue protests (Updated)
I have written the past couple years about ongoing anti-Israel (drifting many descending into blatant anti-Semitic) protests outside an Ann Arbor synagogue. Several congregation members brought a tort claim against the protesters. The claim (rightfully) failed in the Sixth Circuit. Ronald Lewin, a veteran religious-liberty litigator, sought cert, arguing that protest (at least the sort of obnoxious protests at issue here) should be prohibited outside houses of worship, as obnoxious protests are prohibited outside reproductive-health facilities. SCOTUS denied cert.
But then we have this story-- a gay Orthodox Jew has protested outside a Florida Orthodox shul every Shabbat and holy day, after the rabbi asked him and husband not to return because homosexuality violates Jewish law. I cannot identify a more appropriate place for this protest, showing the problem with Lewin's categorical bar. And if this protest is ok, we encounter obvious and egregious content (if not viewpoint) discrimination.
Update: An Ann Arbor resident suggests I understated the anti-Semitic nature of some of the protesters and signs (such as "Jewish power corrupts"), so I amended my language accordingly.
Posted by Howard Wasserman on April 19, 2023 at 11:43 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)
Monday, April 17, 2023
FIRE adopts preferred first speaker
According to FIRE Executive VP Nico Perrino, in an op-ed endorsed by the Chief of the LAPD. Here is the central basis for the claim:
Protesters have every right to engage in peaceful, nondisruptive protest. But they do not have the right to take over someone else’s event and make it their own. This is a basic point, and we understand it in almost every other context. Nobody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors or to scream at a public library book reading.
Just because the public is invited to attend an event — and sometimes to speak during a Q&A period — does not make it the public’s event to disrupt or transform as it pleases. Your distaste for a speaker doesn’t grant you a right to prevent a willing audience from listening to that speaker.
There must be places in a free and pluralistic society where groups can freely associate and share ideas without first seeking approval from a crowd of hecklers. Colleges are such spaces. It’s the very reason they exist.
The first speaker has full First amendment rights and can say or not say what he wants. Counter-speech is proscribed--peaceful (must all speech be "peaceful') and not interfering with the first speaker (who presumably can speak over the counter-speaker). Maybe the counter-speaker has a right to speak during Q&A. But the first speaker controls who gets to speak in that window and presumably can ignore any counter-speaker or any audience member who wants to challenge what he says.
Perrino works off the paradigm of the Judge Duncan/Stanford debacle--invited speaker in a reserved speaking space on a college campus with an audience space that likely is a non-public forum.I see three big problems with Perrino's argument. But he draws from that paradigm a general principle: counter-speaking to and over a speaker in the moment is not protected speech.
I see several problems with that focus and that conclusion.
1) Perrino may be broadly right about that paradigm. He tries to bolster the point that "[n]obody argues that you have a free speech right to stand up during a Broadway musical and sing along with the actors," bolstered by a recent story about audience members singing "I Will Always Love You" during the finale of the show The Bodyguard.
Rather than "heckling is never protected speech," a better framing is "heckling is protected speech, but it yields to content-neutral rules in a forum." This may seem semantic, but semantics matter. A rock concert is protected speech, although it may have to follow neutral noise regulations; driving around town playing music and speaking through a speaker is protected speech, although it may yield to neutral noise regulations. If heckling is never free speech, it remains unprotected when the forum-and its rules and expectations--changes. While the audience should not sing along at a musical, the audience does (and the performers expect the audience to) sing along at a rock concert in the same theatre. Cheering speech at a soccer match looks different than cheering speech at golf tournament.
2) The premise that "heckling is never protected speech" affects what counter-speakers must do and the form of counter-speech FIRE's solution is the alternative program--find a room elsewhere and express your ideas to a separate audience. But that is not counter-speech or protest, as it does not allow counter-speakers to be heard by, respond to, or protest their target.
Counter-speakers could instead take to a nearby public forum (e.g., a public campus space near the building containing the reserved space) and protest there. But Perrino's view forecloses that option. If heckling is never protected speech, then counter-protesters cannot heckle in a traditional public forum; the original rally or demonstration remains s "someone else's event" that counter-speakers "take over" (at least to the extent they are loud and can be heard). That traditional public forums allow for competing groups to be heard or that the rules account for "prolonged, raucous, boisterous demonstrations" does not appear to matter.
Worse, it carries to speakers and counter-speakers occupying the same public forum. Thus, counter-protesters on the of the U Va sidewalks cannot outnumber and outspeak the Proud Boys walking on the campus streets chanting "Jews will not replace us." Pro-equality protesters on the sidewalks around city hall cannot outnumber and outspeak the Klan or Nazis holding a rally on the steps. Students at FIU cannot outnumber and outspeak the bigoted "preacher" using the quad. This is an impoverished view of the role of counter-speech.
3) Perrino's analysis is incomplete within his reserved-classroom paradigm because he does not define "peaceful" or "nondisruptive." If peaceful means non-violent, the word does nothing--neither original nor counter speech can be violent. If peaceful means silent or nonverbal, that proves too much. Audience members can react out-loud to speech--booing, hissing--up to some undefined point of disruption. (Stanford Dean Jenny Martinez recognized this in her post-Duncan letter). No one has defined disruption--whether it means preventing the reserved event but does not include momentary reactions that cause the speaker to pause or delay but that do not undermine the event.
Positive non-silent reactions--applause, laughter, cheers, snaps--may cause the speaker to pause or delay; speakers build those delays into their speeches. If the forum rules prohibit non-silent reactions, they must prohibit positive and negative reactions. Otherwise, the rules cease to be viewpoint neutral, as required in a non-public forum.
4) Perrino doubled-down in a Twitter thread, arguing "[i]f you take over someone else's event, call it what it is: punishable civil disobedience, not free speech." On this point, I would recommend Jenny Carroll's (Alabama) forthcoming Yale L.J. article arguing for a First Amendment civil-disobedience affirmative defense to crimes (e.g., trespassing) arising during protests; the idea is to allow juries to consider the expressive nature of the person's (prohibited) conduct and acquit accordingly. I wonder how the defense would apply in the context of a disruptive counter-protester.
5) That the police chief seized on the simplest version of Perrino's argument--based on the headline that Perrino may not have written--raises further red flags.
6) Perrino (and FIRE) overuse "heckler's veto." Perrino criticizes those who argue that hecking is "'more speech,' not an attempt to carry out a 'heckler’s veto' on the speaker." A heckler's veto occurs when government silences a speaker out of fear of the audience reaction to speech. It might extend to a complete prohibition on a speaker (e.g., the speaker must cancel the event) where government officials fail to enforce a forum's regulations against a hostile audience; Duncan could have become a heckler's veto had the students pushed further. Absent government action and the speaker being prevented from speaking, it is neither fair nor appropriate to call counter-speech a heckler's veto. This framing accepts and instantiates the preferred speaker. It assumes a "first" speaker and gives him preferred status. It assumes that one speaker has priority, that anyone on the other side is a heckler rather than a speaker, and they censor, rather than counter-speaking or presenting competing ideas, censor. The Proud Boys at U Va have priority over their critics, their critics are not speakers, and their critics do something wrong by appearing in larger numbers and uttering their message more forcefully.
7) I have made this point before. Under Perrino's argument, the pro-Ally/anti-Nazi patrons of Rick's engaged in a heckler's veto or acted as censors here. Or the rules of Rick's as a forum are different than the rules of a classroom at Stanford Law School. But the "heckling is not free speech" cannot stand as a blanket principle.
I plan to return to the preferred first speaker this summer, although I have been struggling to figure out how to approach the problem. This offers some organizational ideas.
Posted by Howard Wasserman on April 17, 2023 at 10:01 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Sunday, April 09, 2023
Preemption Procedure: A Comment on the Shugerman-Kovarsky Debate in People v. Trump
Is People v. Donald J. Trump, No. 71543-23 (N.Y. Co. Sup. Ct.) preempted? This question has generated much debate, but is unlikely derail the ongoing state prosecution, at least procedurally.
The defendant is charged with 34 counts of falsifying business records. The offense is raised to the level of a felony, the indictment charges, because the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The issue is that underlying facts may involve a federal election offense. Prof. Jed Shugerman has pointed out that the federal election law has an express preemption provision, and New York State election law has a separate provision acknowledging the primacy of federal law. Accordingly, there is a potential preemption problem which, according to Prof. Shugerman, might mean that “the case is headed to federal court for a year.” Prof. Lee Kovarsky responded with a persuasive argument that states can sometimes use even preempted federal offenses for their own purposes. No one questions, for example, that a New York attorney convicted of an offense within exclusive federal jurisdiction could nevertheless be disbarred. Prof. Kovarsky writes: “To my knowledge, in no case has a court even suggested that a federal crime can't be an element of a different state offense just because the federal crime falls within the scope of preemptive federal authority.” This seems a hard question. If I were in the NY Co. DA's Office, I would strive mightily to elide it and find safe, state crime.Nevertheless, whatever the ultimate merits, I do not see how the defendant gets an injunction. True, earlier proceedings related to this very matter, namely, a New York grand jury subpoena, were subject to a prolonged stay as the Supreme Court considered the case. On the merits, the Court ultimately allowed the subpoena. Critically, the stay was based on a circumstance no longer present: Trump was then President. The Court explained: “The Supremacy Clause prohibits state judges and prosecutors from interfering with a President's official duties. . . . federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here.” Trump v. Vance, 140 S. Ct. 2412, 2428–29 (2020). Vance is not precedent for an injunction to protect a private citizen. There was also the stay of enforcement of a House of Representatives subpoena. But there, the question was not preemption, but “whether the subpoenas exceed the authority of the House under the Constitution.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2029 (2020).
Instead, the case now seemingly presents an ordinary claim of preemption in a state prosecution of a private citizen. In that context, 28 U.S.C. § 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
The possibility that a state prosecution is preempted, standing alone, is not a ticket to federal court:
[A] federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear. Rather, when a state proceeding presents a federal issue, even a preemption issue, the proper course is to seek resolution of that issue by the state court.
Bess v. Spitzer, 459 F. Supp. 2d 191, 201–02 (E.D.N.Y. 2006), as amended (Jan. 30, 2007) (quoting Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149–50 (1988)).
Another judicially recognized exception exists where the defendant proves that a prosecution was “brought in bad faith or is only one of a series of repeated prosecutions,” or that there is otherwise “irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith.” Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir. 1999) (citations omitted). See also Jordan v. Bailey, 570 F. App'x 42, 44 (2d Cir. 2014). “Bad faith” in in this context means “without hope of obtaining a valid conviction.” Perez v. Ledesma, 401 U.S. 82, 85 (1971).
No exception seems to exist. There appears to be no act of Congress providing for federal judicial intervention, and no past or present litigation of these facts for a federal court to protect. Although there is debate about what is required to convict of the offense of falsifying business records, and even more mystery about what the People plan to prove, there is no indication that the prosecution has no chance of success, or is the latest in a series of failed, harassing prosecutions. Accordingly, any preemption issue should be addressed “by the state court.” State rulings would be "subject, of course, to review by . . . [the Supreme] Court or, in a proper case, on federal habeas corpus." 401 U.S. at 85.
One circumstance which neither constitutes bad faith nor tends to support a separate defense is the selective prosecution argument which may be in the offing. Federal constitutional law precedents allow selection of prominent individuals for prosecution. As Wesley Snipes learned to his dismay in a tax case, “[s]ince the government lacks the means to investigate and prosecute every suspected violation of the tax laws, it makes good sense to prosecute those who will receive, or are likely to receive, the attention of the media.” United States v. Snipes, No. 5:06-CR-22-OC-10GRJ, 2007 WL 2572198, at *3 (M.D. Fla. Sept. 5, 2007) (quoting United States v. Catlett, 584 F.2d 864, 868 (8th Cir.1978)). See also United States v. Edenfield, 995 F.2d 197, 200 (11th Cir. 1993) (“For law enforcement officers to choose to investigate prominent offenders is nothing unusual or evil.”)
The limited New York authority on prosecuting celebrities I could find is to the same effect: “assuming the decision to prosecute was based on the fact that the defendants were prominent and newsworthy, this is also not an impermissible basis for selection . . . Publication of the proceedings may enhance the deterrent effect of the prosecution and maintain public faith in the precept that [others] are not above the law.” People v. DiLorenzo, 153 Misc. 2d 1021, 1029–30, 585 N.Y.S.2d 670, 675 (Crim. Ct. Bx. Co.1992) (citing People v. Barnwell, 143 Misc.2d 922, 541 N.Y.S.2d 664 (Crim. Ct. N.Y. Co. 1989)). There is also one lower court case more or less endorsing the the proposition that it is permissible to target individuals for enforcement because they are suspected of other crimes. See People v. Mantel, 88 Misc. 2d 439, 443, 388 N.Y.S.2d 565, 569 (Crim. Ct. N.Y. Co. 1976) (citing United States v. Sacco, 428 F.2d 264, 271 (9th Cir. 1970) (“selection of this defendant for intensive investigation was based on his suspected role in organized crime”) Stuart Green has written thoughtfully about whether prosecuting celebrities and the prominent is consistent with criminal law principles, but the doctrine seems to allow it. Stuart P. Green, Uncovering the Cover-Up Crimes, 42 Am. Crim. L. Rev. 9, 42 (2005).
If the defendant could show that other, similarly-situated offenders who were members of different political parties were not prosecuted by the same office, then that would raise a substantial issue. United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997) (citing, inter alia, United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). But such claims have historically proved difficult to establish. United States v. Lazzaro, No. 21-CR-0173 (PJS/DTS), 2022 WL 16948157 (D. Minn. Nov. 15, 2022); United States v. Woods, 319 F. Supp. 3d 1124, 1141 (W.D. Ark. 2018), aff'd sub nom. United States v. Paris, 954 F.3d 1069 (8th Cir. 2020), and aff'd, 978 F.3d 554 (8th Cir. 2020); United States v. Young, 231 F. Supp. 3d 33, 43 (M.D. La. 2017); United States v. Cameron, 658 F. Supp. 2d 241, 243 (D. Me. 2009).
Posted by Jack Chin on April 9, 2023 at 09:53 PM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (2)
Tuesday, April 04, 2023
District Court gets defensive/offensive right--standing still sucks
In 2021, I wrote about an Eighth Circuit case in a challenge to Arkansas' exclusive-private-enforcement ag-gag law. An animal-rights organization brought an offensive challenge to the law against several farm owners/potential plaintiffs. A divided court found the chilling effect of the law and the threat of suit established injury-in-fact for standing. I criticized this focus on standing, because the plaintiffs had no § 1983 cause of action against non-state actors; the court did not address that issue because it went to the merits and standing serves as a threshold.
The district court corrected that on remand. It granted defendant's motion to dismiss, concluding that the plaintiffs cannot satisfy § 1983 because the would-be state-law plaintiff does not act under color. The court further rejected plaintiff's argument that in finding an injury the court found state action. While the issues can be "one-and-the-same," the finding of a threshold does not necessarily satisfy the element. Nevertheless, that the plaintiff raised and thought the argument could work shows how far the law of standing has constitutionalized an essentially merits inquiry and needlessly complicated constitutional litigation.The court also explains offensive and defensive litigation and when only one is available--why state action allowing a defense does not equate with state action/under color allowing an offensive action, why every case plaintiff cites arose defensively and thus does not support the § 1983 argument it attempts to make, and why a Fourth Circuit offensive action against a state agency with state-law enforcement power does not support an offensive action against a private would-be plaintiff.
Posted by Howard Wasserman on April 4, 2023 at 02:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)
Friday, March 24, 2023
How else are you supposed to do it?
Journalist Jason Garcia is upset that the Speaker of the Florida House acknowledged that the bill altering state defamation law is "intentionally unconstitutional" and designed to trigger litigation and provide SCOTUS an opportunity to overrule New York Times and other defamation precedent.
Put aside that "intentionally unconstitutional" should mean, at most, "unconstitutional as judicial precedent understands the First Amendment" and that a legislature can hold and act on competing constitutional understandings. But even at the most judicial supremacist, what else is a legislature supposed to do if it believes judicial precedent wrong and wants to challenge (and change) it? If a state cannot do what Florida is trying here, judicial supremacy means the popular branches lack the power to disagree with the judicial understanding or to create mechanisms to express that disagreement and urge the court to change path. The Court's word is not only final but unchanging and irrevocable.
Posted by Howard Wasserman on March 24, 2023 at 06:03 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, March 02, 2023
It's all about the precedent
Jonathan Adler comments on universal vacatur in the student loan case. He gets at the fundamental (and overlooked) insight in this debate: The prospective non-party effects of a decision arise from precedent, never from the judgment. SCOTUS does not issue (or affirm) universal injunctions; its opinion affirming a particularized injunction in Case1 binds other courts in future cases involving similar issues. The DC Circuit does not issue universal judgments; its opinion in Case1 binds the circuit in future cases involving similar issues (where, Adler argues, Congress gives the D.C. Circuit exclusive jurisdiction). To the extent that disables regional circuits from imposing broader consequences, Congress chose that effect by creating a regional and hierarchical judiciary.
Departmentalism (not mentioned in the arguments or in Adler's piece) makes this compliance practical rather than legal. The executive follows precedent (at least within the circuit) because it chooses to do so, knowing it will otherwise lose when non-compliance returns to the D.C. Circuit.
Posted by Howard Wasserman on March 2, 2023 at 06:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, February 27, 2023
Florida redefines defamation law
Continuing my discussion of horrible new Florida laws. Rocky and I discussed DeSantis' 2022 never-reduced defamation-reform plan. It has been introduced in the current session. I describe some of the provisions after the jump.
Two things remain from the original proposal (and why we discussed it in our SB8 articles): The bill has serious and obvious First Amendment defects (many First Amendment people would call it "blatantly unconstitutional"). And those constitutional defects cannot be raised or adjudicated in offensive pre-enforcement litigation, because they define the elements of a private right of action for damages; speakers must sue and raise the First Amendment as a defense. Some defamation defendants might have the option of removing the private action to federal court on diversity grounds, an option unavailable to SB8 defendants.
Here are the bill's lowlights, all of which should raise serious First Amendment problems.
• Statewide (or near-statewide) venue for defamation actions. One of the key ways SB8 supposedly stacked the deck.
• Fee-shifting for prevailing defamation plaintiffs, plus removing defamation action from offer-of-judgment fee-shifting. This runs against the trend of granting fees to prevailing defendants to deter performative defamation actions (even absent full application of a state SLAPP in federal court).
• Limits on when someone can become an accidental, involuntary, or limited-purpose public figure. In particular, non-elected public officials (read: cops) do not become public officials solely by virtue of employment and no one becomes a public figure by denying accusations of wrongdoing. This is enables police officers involved in excessive-force incidents to use defamation suits to silence critics--they can go on a media tour to deny the allegations and neither their government job nor media access renders them public figures.
• Identifies situations in which actual malice is presumed. These include relying on "unverified anonymous reports," repeating something that is "inherently implausible," and failing to validate. The irony, of course, is DeSantis seeks to target the people who picked on Nick Sandmann, Kyle Rittenhouse, etc. But this language is more likely to enable claims by Dominion against election deniers and other conspiracy theorists who repeat nonsense that only a crazy person or reckless person could believe.
• An allegation that someone discriminated on all sorts of bases constitutes defamation per se, with statutory damages of $ 35k. This should not fly because such an allegation or report of an allegation may be opinion or hyperbole, either of which is protected.
• Where that allegation of discrimination is because of sexual orientation or gender identity, a plaintiff cannot prove truth if the defendant relied on religious or scientific beliefs. This exacerbates the viewpoint-discriminatory nature of most defamation. But it shows how the accusation of discrimination is non-provable opinion--both involve competing, non-falsifiable "beliefs" rather than facts. Nevertheless, it may have a chilling effect in reporting and reporting on widespread discrimination--especially around LGBTQ+ status--in the state.
• A statement by an anonymous source is presumptively false. And where the defendant refuses to disclose the identity of the anonymous source, the plaintiff (including a public figure or official, it appears) need only prove negligence.
As I said, each bullet point will draw serious First Amendment scrutiny and many should be declared invalid. Much depends on how much of the First Amendment defamation edifice is constitutionally compelled. That is, how much leeway does a state have to define the scope and application of actual malice in its defamation law and what limits does the First Amendment impose from above. For example, can a state shift the burden to prove truth in anonymous-source cases or does the First Amendment place the burden on the plaintiff? Can a state define who qualifies as a public official/public figure required to prove actual malice or does the First Amendment control?
Regardless, it again demonstrates that what Texas did with SB8 was not new; it reflected a specific application of a state's longstanding ability to define torts and private rights of action. Again, decry Florida's blatant disregard for free speech. Do not treat the process as unprecedented or problematic.
Posted by Howard Wasserman on February 27, 2023 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday, February 25, 2023
Making a hash of pre-enforcement offensive litigation
In Fund Texas Choice v. Paxton, a First Amendment challenge to three sets of Texas laws a purporting to prohibit funding and facilitating legal out-of-state abortions--SB 8, HB 1280 (a trigger law that took effect 30 days after Dobbs), and pre-Roe zombie laws. Some blame for the hash rests with justiciability doctrine, some rests with the district judge.
To demonstrate the hash, I will identify the key legal or mixed principles, then identify the court's holding in the case, then show where (I believe) it goes off the rails.
Legal Principles and Findings:• No public enforcement of SB8.
• The attorney general lacks power to enforce pre-Roe laws; enforcement rests with local DAs. Nevertheless, Paxton made numerous public statements about his intent to enforce those laws.
• The attorney general has the power to enforce HB 1280 and made numerous statements indicating an intent to enforce the law with respect to out-of-state abortions.
• HB 1280 has no extra-territorial effect and the attorney general's public-but-informal hints and suggestions, falling short of a full statement of intent, do not overcome the law's text.
• Texas repealed its pre-Roe laws by implication. Based on binding Fifth Circuit precedent and undone by legislative findings in SB8, the post-Roe regulatory scheme for legal abortion cannot co-exist with the pre-existing bans on virtually all abortions.
• The court never analyzed whether enforcement of the pre-Roe laws violates either the First Amendment or the right to travel.
Conclusions:
• Claims against Paxton dismissed for lack of subject matter jurisdiction based on lack of standing and sovereign immunity. Although the court does not specify, it appears to be for lack of standing and/or sovereign immunity. Because Paxton cannot enforce any of the challenged laws against plaintiffs' desired conduct (he cannot enforce pre-Roe laws and cannot enforce HB 1280 as to the plaintiffs' desire conduct), he is not a responsible executive officer and plaintiffs lack traceability and redressability.
• Preliminary injunction granted against several named local DAs (although the court has not certified the defendant class of all DAs) from enforcing pre-Roe laws as to funding or facilitating out-of-state abortions.
Why this is all such utter nonsense:
• Bickel defended standing and the "passive virtues" as eliminating unnecessary constitutional adjudication. But consider how much and how detailed the adjudication necessary to dismiss this case for lack of jurisdiction--to say that the court lacked the power to consider the constitutional validity of Paxton's conduct or the scope of the plaintiffs' constitutional rights. The court analyzed the attorney general's power under three sets of laws, the effect of the attorney general's grandstanding and bumptious threats, and the extra-territorial scope of new state law. But the real meaning of these conclusions (putting aside their normative correctness) should be substantive--Paxton's conduct does not and cannot violate the plaintiffs' rights because he lacks the power to impose any legal consequences on their conduct. No constitutional violation means no injunction. But the court had jurisdiction to analyze all of this.
• Were this accurately treated as merits, plaintiffs could tailor a lawsuit such as this one. Paxton has been running around hinting about enforcing HB 1280 extra-territorially, even if he lacks the power to do so. It would benefit the constitutional system if plaintiffs could react to those hints by obtaining an express declaration that he cannot do so, whether because he lacks power under state law or because doing so would be constitutionally invalid. Instead, they have that analysis and those determinations, but without legal effect. (It might have precedential effect, as it is essential to the holding; but district courts cannot create binding precedent and jurisdictional holdings tend to carry less substantive precedential force as to any underlying constitutional issues.
• The court drops the following footnote in dismissing the claims against Paxton:
While the Court dismisses Plaintiffs’ H.B. 1280 claims without prejudice, it recognizes that there may be certain situations where the statutory analysis changes. For example, the analysis might change if a local prosecutor imminently threatens charges for funding out-of-state abortions or an opinion from the Attorney General’s office declares it illegal.
The court did not dismiss the claims against Paxton for lack of imminence, so I do not see why imminence has entered the mix. He dismissed them because HB 1280 unambiguously does not allow extra-territorial application. I do see why either of those events changes that conclusion. The court recognizes that Paxton is hinting at extra-territorial enforcement "for the deliberate purpose of deterring funds from facilitating out-of-state abortions." But if those hints and threats do not overcome unambiguous text, a local DA's more imminent and specific threat or a formal AG opinion should not do so. Either the executive position can overcome unambiguous text (in which case these claims against Paxton should proceed, based on his posturing) or they cannot (in which case the footnote is wrong).
• If pre-Roe laws were repealed by implication, the claims against the DAs should have been dismissed on the same bases as the claims against Paxton. Repealed laws no longer exist as law, leaving the DAs nothing to enforce. A court cannot enjoin an executive from doing something he lacks the authority to do. DAs can no more enforce pre-Roe laws than Paxton can enforce HB 1280--in either case, no existing state law prohibits funding or facilitating out-of-state abortions and thus the target executives have nothing to enforce. In fact, the argument for lack of jurisdiction as to the DAs is stronger than as to Paxton. Paxton has an extant law he could enforce in the abstract, but the court interpreted it to be unenforceable in the current circumstances; the DAs have nothing but air.
• Making even less sense, the court uses implied repeal as the sole basis to find likelihood of success on the merits and to grant the injunction. The court never discusses whether the pre-Roe laws violate the First Amendment or the right to travel; that the laws were repealed by implication makes them invalid and unenforceable.
• The last point arises from the court treating impliedly repealed laws differently from expressly repealed laws, a unique category subject to unique analysis. But that framing makes no sense. Had the legislature repealed pre-Roe laws, the court would have dismissed for lack of standing (what I think should be merits, but same result); again, the lack of a law on the books leaves nothing to enforce and the court cannot enjoin the executive from what he cannot do. Had the law not been impliedly repealed, it would be a Dobbs-dezombified law; the court must consider whether the living law applies extra-territorially (the court says it does) and whether it violates the First Amendment or the right to travel (the court never says). Instead, impliedly repealed laws create a third thing--extant (thus potentially enforceable, giving plaintiffs standing) but per se invalid (thus obviating analysis of their constitutional validity). I have never seen anything like this and the court does not explain or justify this category of law.
How the case should have been resolved:
• The court should have reached the merits as to Paxton enforcing HB 1280, a live law. There ought to be consequences for executive saber-rattling, even when ungrounded in state law, having the purpose and effect of deterring conduct that is lawful under state law and constitutionally protected. The court should have addressed whether the law, if applied extra-territorially as Paxton has threatened, violates the Constitution.
• If pre-Roe laws were impliedly repealed, it should not have enjoined the DAs. If implied repeal remains an open question, then the court should have analyzed their constitutional validity before entering the injunction.
• Someone in the comments to Volokh's post on the decision suggests the Fifth Circuit will certify the question of implied repeal to the Texas Supreme Court. That may be a good idea. But the district court's analysis cannot stand regardless of that court's decision. If the laws were impliedly repealed, the district court erred in enjoining enforcement. If the laws were not impliedly repealed, the district court never addressed or resolved the substantive constitutional issue, which the reviewing court ought not do for the first time.
Pretty bad all around.
Posted by Howard Wasserman on February 25, 2023 at 12:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, February 10, 2023
Visitors sue Air and Space Museum, encounter Fed Courts doctrine?
Visitors to the Air and Space Museum sued the museum, agency, and several Doe officers, alleging that the officers forced them to remove hats with the logo "Rosary Pro Life" while visiting the museum; they allege free speech, equal protection, and RFRA violations and seek damages and injunctive relief. Eugene Volokh reports that the Museum admits this happened and that it should not have. He also argues that the free speech analysis is obvious here--the museum is a non-public forum in which officials can make reasonable content-based distinctions but not viewpoint-based distinctions (such as not promoting "equality").
But I am not sure we reach those merits:
• Plaintiffs should lack standing for an injunction. The plaintiffs cannot show this will happen again in the immediate future. Not only is it unlikely they can show concrete plans to return to the museum. And they cannot show they will suffer this injury if they do return, given the museum's response and the seeming randomness of the officers' conduct.
• This is an extension of Bivens--the Court has never allowed a free-speech claim. And the usual special factors arise--Congress should create causes of action and has not done so and, post-Egbert, agency disciplinary-complaint procedures offer sufficient mechanism for deterring misconduct. This is not a national-security case so that over-arching factor is absent. But lower courts emphasize the new single question of "Isn't Congress is better suited to balancing the costs and benefits of causes of action?" (to which the answer is always "yes") to reject actions outside national security.
• RFRA provides a cause of action for suits against government officials, so plaintiffs do not need Bivens for their religion claims. But plaintiffs must show this was religious rather than speech discrimination--does the word Rosary on the hats mean the officers knew the message was religious and forced them to remove the hats because of that religious (as opposed to political or ideological) message?
• If this is religious discrimination and/or they convince the Court that no special factors counsel hesitation, they must overcome qualified immunity. There is almost certainly no case law about making someone remove a hat because of its religious or political message in a museum. The court must fall back on general First Amendment principles, the sort of high-generality analysis courts usually reject. It might be interesting to see how the court uses the museum's mea culpa--does that show that it was clearly established that officers could not make visitors remove hats and other clothing because of the message?
Posted by Howard Wasserman on February 10, 2023 at 04:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (14)
Monday, January 30, 2023
More on Warren-DeSantis and the court's ill-advised analysis
I wrote last week about the district court decision in the lawsuit between the Hillsborough (FL) County DA and Florida Governor Ron DeSantis, arising from the latter suspending the former. I argued that the court made two legal mistakes: 1) Framing the case as DeSantis violating Warren's First Amendment rights in considering protected speech where he would have reached the same conclusion based on something other than protected speech and 2) Pronouncing that the suspension was inconsistent with state law while refusing on Eleventh Amendment grounds to issue an injunction ordering reinstatement. I also suggested Hinkle--whether intentionally or otherwise--provided Warren a weapon in the political controversy.
That last thing happened more quickly than I anticipated. Warren last Wednesday sent (and publicized) a letter to DeSantis urging the governor to voluntarily reinstate him. Warren frames the situation as follows: The court found as a matter of fact and law that the suspension violated the U.S. and Florida constitutions. Although not ordering Warren's reinstatement "in deference to federalism," the court called on DeSantis to "easily set [that violation] right" by recognizing that "the facts matter" and that he should not have removed Warren. DeSantis thus should follow his oath and obey the law by rescinding the suspension. This is a political stunt (as was the entire lawsuit), leading with the court's words as if they provide the final answer on these issues.
I explained where the court went wrong. But Warren's tendentious framing raises that error to another level.
The Eleventh Amendment (as courts apply it) does not create discretionary deference to federalism allowing a court to offer binding legal conclusions while declining to issue any legal remedy. It imposes a jurisdictional bar to adjudicating state-law issues. The court had no power or basis to consider the state-law validity of the suspension. It dismissed Warren's state-law claim as improper under § 1983/Ex parte Young. Nor were the state-law issues built into the federal issues. Adjudicating the First Amendment claim did not turn on the accuracy of the state law grounds--for purposes of whether DeSantis' decision rested on something other than Warren's protected speech, the question is whether DeSantis believed Warren adopted blanket non-prosecution policies, not whether DeSantis' beliefs were true or accurate.
Warren's letter treats the court's state-law analysis as akin to a declaratory judgment--the court issuing a jurisdictionally appropriate order that DeSantis violated state law, but finding that declaration sufficient and declining to issue further relief in deference to competing values. That is, the court provided a valid statement of law designed to persuade the defendant to change his behavior going forward, while reserving the "strong medicine" of an injunction for discretionary reasons and with faith that DeSantis will comply with the decision. DeSantis must "follow the law" as the court declared it.
This is wrong. The Eleventh Amendment strips courts of jurisdiction to issue all remedies, not only injunctions. The court had no more power to issue a DJ based on violations of a state-law rights than to issue an injunction based on a violation of state-law rights. That bar precludes any consideration of state law or whether DeSantis' conduct comported with the state constitution--the court acted beyond its power in making these pronouncements and they should have no legal force. Again, this goes beyond dicta--it is a court speaking words without the power to act as a court.
But those words provide Warren's first line of attack in the press and in politics.
Posted by Howard Wasserman on January 30, 2023 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Friday, January 27, 2023
Jack Phillips loses on defense, no one cares
Jack Phillips and Masterpiece Cakeshop provide the response to complaints about SB 8 (and other "vigilante federalism" laws) that resist pre-enforcement offensive federal-court challenge and consign rights-holders to defensive litigation in state court--expecting the state court to properly vindicate federal rights or hoping for SCOTUS review at the end of the multi-stage process.
Phillips finds himself in that position, facing a private civil action under Colorado law from a transgender customer denied a custom cake. Phillips lost in the trial court and the court of appeals affirmed, concluding that the cake (pink on the inside, blue on the outside) carried no intrinsic message apart from how the customer planned to use it (a celebration of the anniversary of her m-to-f transition).*
[*] And Masterpiece did not know about that use when the customer ordered the cake and the store initially agreed to make it.
Phillips believes his constitutional rights are as obvious and as violated as those seeking reproductive care in the face of SB8 or trans athletes seeking to compete. Yet no one complains about Autumn Scardina using civil litigation against his (perhaps) protected conduct or acting as vigilante against Phillips. The difference remains that the people opposing SB8 and other vigilante laws disagree with his legal position and do not mind people suing him into oblivion. Procedure cannot turn on such substantive differences.
On the merits, this case bolsters my thoughts after the 303 arguments: These cases superimpose a complicity element on compelled speech. The messages made by the challengers--"Jack and Jack are getting married," "pink-and-blue cake"--carry no political message. It is what the customers do and say with that message after it is made--something untouched by the challengers--that matters. So the First Amendment argument must be that an anodyne, identical message is put to an end with which I disagree. That differs from the core compelled-speech case.
Posted by Howard Wasserman on January 27, 2023 at 09:14 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Friday, January 20, 2023
Bizarre (and arguably advisory and ultra vires) opinion in Warren v. DeSantis (Slight edit)
The case arises from Florida Governor Ron DeSantis suspending Hillsborough County (Tampa) State's Attorney Andrew Warren. The court held that DeSantis considered six things in suspending Warren--three impermissible under the First Amendment and three permissible under the First Amendment. DeSantis would have suspended Warren based on the latter permissible grounds had he not considered the former impermissible grounds; therefore Warren's retaliation claim fails under Mt. Healthy. DeSantis violated Florida law in suspending Warren, because those federally permissible grounds were impermissible under state law, because the facts did not show incompetence or neglect-of-duty. But the Eleventh Amendment* prohibits federal courts from granting relief against state officials for state-law violations. Thus, although the court makes a big production of announcing that DeSantis violated state and federal law, it grants no remedy and dismisses Warren's claims.
[*] Really the limits of § 1983, but that ship sailed.
This is a bizarre decision.
• I doubt it is proper for the court to say DeSantis "violated the First Amendment." Constitutional violations occur with adverse enforcement action, not with thoughts or ideas not acted upon. The adverse action here was suspending Warren. If DeSantis would have taken that adverse action regardless of anything related to Warren's protected speech, he did not violate Warren's constitutional rights, at least as we define the scope of the First Amendment in this context. Compare a racist cop who arrests a Black person on a charge for which he has probable cause; the arrest is valid because of probable cause, regardless of any racist ideas or statements the officer makes. We may disagree with that doctrine. But it, for the moments, defines when a government official violates someone's constitutional rights.
• The court should not have declared the state-law validity of the firing. This goes beyond mere dicta or even an advisory opinion. Warren brought a state law claim, which the court dismissed under Pennhurst (again, better if § 1983, but whatever). The propriety of the state-law reasons were not before the court. Worse, if the Eleventh Amendment, as elaborted in Pennhurst, strips courts of jurisdiction over state-law issues, the court pronounced on issues beyond its jurisdiction.
• I said the court should have abstained under Pullman and Hinkle's approach to the opinion confirms this. The case always turned on the suspension's state-law validity; the First Amendment provided a sideshow. The court did what Pullman seeks to avoid--passed on unnecessary federal constitutional issues in the face of controlling state-law issues.
• It is hard not to read this as a political shot for Warren to use in the media. He can wave the opinion and say a federal court backs his view that DeSantis ran roughshod over his First Amendment rights. It also represents a political shot at the Florida Senate, which will hold a "trial" on the state-law propriety of the suspension, affirming DeSantis' decision or reinstating Warren. Hinkle has created a detailed legal and factual record, particularly finding that DeSantis' insistence that Warren had a blanket non-prosecution policy was nonsense and that he knew (or at least should have known, had he looked) it was nonsense. This helps Warren in the press and in the public should he lose before the Senate. Warren can compare this opinion to any Senate decision finding the suspension warranted and use it to argue that the Florida Senate made an incorrect, politically motivated decision--"see, we know the Senate made a politically motivated decision, because here is a federal judge showing why the suspension violates federal state law." Hinkle hints at this motive by referring to the "heavily partisan Florida Senate."
Posted by Howard Wasserman on January 20, 2023 at 03:07 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)
Friday, December 09, 2022
No state standing in SB8 suit
Press release on the judge's ruling from the bench that standing requires a plaintiff directly affected by the provision of abortion services. This is remaining lawsuit of the three filed by "colorful" actors; the plaintiff is Felipe Gomez, a suspended Illinois lawyer who purports to support abortion rights.
This is largely moot, since Texas post-Dobbs banned abortion through criminal penalties and government enforcement. But it provides a nice coda to the SB8 story that has ended with a whimper. Rocky and I called the result, although we argued that Texas has a history of statutorily authorized private enforcement that complicates the analysis more than in federal court. It also reveals an irony in the debate over "bounty-hunter" laws--legislative efforts to deter disliked-but-constitutionally-protected conduct through the chill of random private litigation fail in the face of state judiciaries that interpret their constitutions to ape Article III. Further irony: California--which tried to create a "blue-state SB8" on firearms--allows broader "any person" standing than Texas (at least according to one trial judge) and other states that are trying this.
Posted by Howard Wasserman on December 9, 2022 at 08:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)
Thursday, December 01, 2022
Uvalde lawsuit
Complaint here. I have been thinking about this inevitable lawsuit and the problems it will face--and I am not sure this complaint, as pleaded, avoids those problems. The main claim is substantive due process/bodily integrity. There are two ways to plead this claim based on third-party harms--state-created danger and special relationship. The complaint alleges both and both encounter problems.
As to the former, the Fifth Circuit (so far) refuses to recognize state-created danger as a basis for due process liability (the only circuit never to do so), although the complaint does not mention this fact.Maybe this is the case that would prompt a change, but I doubt it. So to the extent they premise liability and remedy on "Uvalde officials did a horrible job and allowed Salvador Ramos to do what he did," that theory is unavailable in the Fifth Circuit.
As to the latter, special relationship does not apply between schools and teachers and students, because their presence in school (unlike, e.g., prisons) is not involuntarily coercive. And law enforcement does not have a special relationship with the public or a general duty to protect. Plaintiffs offer two ways around this. First, by showing up and establishing a perimeter, police created a special relationship that did not previously exist. This raises tricky line-drawing problems. The theory is that police lack a general duty to protect but at some point they take enough affirmative steps to establish a special relationship and create that duty to protect--where, exactly, is that point? But this seems to be the best thing they have. The second theory is that police affirmatively prevented parents and others from helping out while police did nothing. But this does not describe inaction within a special relationship; it describes affirmative action to worsen a third-party-harm situation, which sounds in state-created danger (still unavailable in the Fifth Circuit) rather than special relationship.
Plaintiffs include claims for municipal liability against the school district for a custom or practice of noncompliance with safety regulations and against the city for failing to follow existing active-shooter protocols and failing to train/supervise officers on those protocols, which they "magnificently failed" to follow. Two things. First, there is an interesting puzzle here over the concept of policy and policymakers Uvalde had protocols--formal policies established by government policymakers--that police ignored; municipalities avoid liability when they can show that officers ignored or acted contrary to official policy. Plaintiffs attempt to avoid that by alleging that the acting police chief, the policymaker for law enforcement, created new policy by ignoring existing policy. Second, municipal liability depends on an underlying constitutional violation and injury to which municipal policy, custom, or failure-to-[blank] contributed. The immediate cause of the injury is the private shooter, which returns us to state-created danger (policies and failures as affirmative acts enhancing the shooter's ability to kill) not recognized in the Fifth Circuit or to special relationship that, as described above, does not fit seem to fit here.
Finally, they ask for an injunction basically compelling the school and the city to get its shit together as to school safety and active-shooter responses. They also ask to certify a class to get around the obvious standing problems. We will see if that works, given the unlikelihood of another shooting situation, no matter how bad the city's customs and practices.
I am putting the final touches on the third edition of my civil rights treatise, including new case-based problems. I may need to add this one.
Posted by Howard Wasserman on December 1, 2022 at 10:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, November 16, 2022
Effective v. Enforceable
Further thoughts on the Georgia trial court and the idea that a law enacted contrary to binding judicial precedent never became a law:
The problem may be one of nomenclature and the conflation of two terms--when a law is effective and when a law is enforceable. My view is that a law is effective on the date the legislature indicates in the enrolled and signed bill. Constitutional litigation concerns whether a law is enforceable--and the judicial remedy from constitutional litigation is to stop enforcement of the challenged law, not to cause the law to cease being effective. Thus the Georgia court's fundamental error. Pre-Dobbs precedent did not cause the law to lack effect; it causes the law to be unenforceable. This, again, goes back to the source of the constitutional violation--the law itself or its enforcement.
The same nomenclature problems arose in the S.B.8 discussions in September 2021. People complained about SCOTUS' denying emergency relief allowing S.B.8 to take effect. But that is wrong. S.B.8 took effect on September 1, 2021, per the law's text. Denying emergency relief allowed S.B.8 to be, and remain, enforceable (through private lawsuits).
Posted by Howard Wasserman on November 16, 2022 at 01:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Georgia trial court rejects judicial departmentalism
A Georgia trial court declares Georgia's heartbeat ban constitutionally invalid underGeorgia's "void ab initio" doctrine--a law enacted contrary to binding judicial precedent never had any force or effect. While "on the books," the law never carried any force or effect. It "'is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office.'" It is "'in legal contemplation, as inoperative as though it had never been passed.'" The court adds that "an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void." There can be no zombie laws that "spring back to life" when precedent changes.
Obviously I disagree with this framing. The legislature did enact a law that is in effect in the state of Georgia. The law is not enforceable--or at least enforcement is certain to fail once the issue reaches the judiciary and the judiciary applies then-existing constitutional doctrine. Moreover, this approach presumes that a law violates the Constitution (in this case, the rights of pregnant people) by existing and thus the legislature violates the Constitution by enacting it. But the constitutional violation arises from the actual or threatened enforcement of the law, not from the law itself; the legislature does nothing wrong in enacting a law. Put differently: The court says that the heartbeat ban "exist[ed] only on paper." But all laws exist only on paper. Their force and effect comes from actual or attempted enforcement--at which point the judiciary and controlling precedent come into play.
Here is the topper:
What does this ruling mean? Most fundamentally, it means that courts -- not legislatures -- define the law. This is nothing new, but it seems increasingly forgotten (or ignored): “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803); see also Beall v. Beall, 8 Ga. 210, 219–20 (1850). If the courts have spoken, clearly and directly, as to what the law is, as to what is and is not constitutional, legislatures and legislators are not at liberty to pass laws contrary to such pronouncements. This does not, as the State protests, leave the legislative branch powerless in the face of “judicial supremacy run amok.” (Defendant’s Response at 1). To the contrary, “[t]he inherent powers of our State General Assembly are awesome.... [It] is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State or Federal Constitution.” Sears v. State of Ga., 232 Ga. 547, 553–54 (1974) (citation omitted). The void ab initio doctrine and its application to something like the LIFE Act properly cabins that broad legislative authority to set policy for our State and for the people who comprise it: do what you will, only do so within the bounds of the constitution that the courts have established.
If I were looking to give my students a definition of judicial supremacy, I could not do any better--the courts define the law, the Constitution means what the courts say it means, and the legislature must yield to the judiciary's constitutional understanding. The legislature's power is unrestricted unless the judiciary restricts it.
One criticism of judicial departmentalism (as Kevin Walsh framed it and as I have applied it to disputes about SB8 and universal injunctions) is that it collapses into judicial supremacy--because every dispute reaches court, the judicial view prevails at the end of the day. This case demonstrates the difference--judicial departmentalism leaves the legislature a modicum of power to engage in the legislative process and to define the state's statute books--however the laws on those books may or may not be enforced.
Besides being a bad approach to constitutional law, this approach may prove to much and raises a number of open issues:
• Must legislatures repeal zombie laws and ensure the statute books are consistent with the state of judicially declared constitutional law? Alternatively, must they reenact zombie laws when the Court changes its constitutional understanding? If a new law contrary to judicial precedent never gains legal effect, does an existing law contrary to new judicial precedent lose all legal effect? The court's logic is yes--the zombies never "spring back to life." So a new law is required for any effect.
• How can the political branches seek to change judicial precedent? There must be a law and actual or threatened enforcement to present a case in which the judiciary could change precedent. So Mississippi succeeded in getting the Court to overrule Roe by enacting a new law and triggering the litigation through which the Court changed precedent. But if the new law is void ab initio, the court never reaches the substantive constitutional question (or must reach out to do so when unnecessary, which we say courts should not do) because the new law never was law. And that will be the case for any new law. And if I am right about the prior bullet point, the state cannot use existing laws for the challenge, because those lost all force and effect.
Posted by Howard Wasserman on November 16, 2022 at 10:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)
Wednesday, October 19, 2022
We are all judicial supremacists now
Jacob Sollum at Reason does not think much of New York and New Jersey exercising judicial departmentalism on gun regulation by enacting laws that likely (and in the view of one district judge, definitely) do not comply with Bruen. Note the language Sollum uses--"defying the SCOTUS decision," failing to "respect the constitutional right," "pretending to comply with the Second Amendment." As if the Second Amendment and what SCOTUS says about the Second Amendment are co-extensive. I thought we liked allowing the judicial branches to exercise their own constitutional ideas, even if they depart from the Court's ideas. And that they lose before a district judge--bound by SCOTUS precedent in a way the NY and NJ legislatures are not--it is not because they were trying to "fool[]" anyone.
This piece could have been written by an abortion-rights supporter about Idaho, Missouri, and Texas anytime in the 45+ years prior to June 2022. I guess not.
Posted by Howard Wasserman on October 19, 2022 at 05:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Tuesday, October 04, 2022
Trump v. CNN
Donald Trump has sued CNN for reporting and op-eds comparing him to Hitler and using the term "Big Lie;" he seeks $ 475 million in damages.
This lawsuit demonstrates something I have argued for awhile--the call to overrule New York Times as shorthand for rejecting or limiting actual malice is a red herring, distracting from a broader attack on political speech, criticism of government and other influential persons, and the First Amendment's broader speech-protective superstructure. A host of First Amendment principles destroy this case, regardless of actual malice. Everything the suit complains about is political speech and criticism, opinion, and rhetorical hyperbole--all at the core of First Amendment protections; it points to no provable and verifiable statements of fact that can form a basis for defamation liability. The suit would overrule the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." It is difficult to imagine a clearer example of caustic and sharp rhetorical hyperbole than comparing a political leader to Hitler.
The suit also suggests that because CNN purports to be a news organization, it enjoys less First Amendment protection--including the loss of protections of actual malice--than other speakers. It argues that actual-malice protection should not apply
where the media defendant is not publishing statements to foster debate, critical thinking, or the 'unfettered interchange of ideas' but rather seeks to participate in the political arena by offering propaganda.
This is insane on several levels. It suggests there is something called "propaganda" entitled to less protection; it allows government to define and draw the line between that and fostering debate; and it insists there is a distinct category called "news" (never defined) and limits certain media speakers to that category. The irony of this media/other speaker distinction is that it turns NYT on its head. The Court has long debated but never resolved whether NYT applies to nonmedia defendants. Trump's suit goes the other way--media defendants enjoy less protection than other speakers.
This is an absurd suit that should go down in flames at the 12(b)(6) stage and should result in sanctions for the ethically challenged lawyers who filed this. In addition, Florida's anti-SLAPP statute could rear its head. The statutory dispositive motion does not apply in federal court. But Florida's statute contains a unique fee-shifting provision--fees are available for any action that is "without merit," not limited to actions rejected under the special anti-SLAPP motion (as in most anti-SLAPP laws). One judge in the Southern District of Florida has applied the statutory provision (which should apply in federal court) to award fees where the action was dismissed on an ordinary 12(b)(6). Trump thus could be on the hook for attorney's fees for this abuse of process.
Posted by Howard Wasserman on October 4, 2022 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)
Monday, October 03, 2022
Maybe Dobbs is different
During the period between the Dobbs leak and the opinion, I wrestled with the arguments that Dobbs is unique because it overrules precedent to eliminate a recognized individual right, as opposed to reinstating or establishing a new right. I was not sold on the argument because the Court has "eliminated" rights--overruling Lochner and overruling some crim pro stuff. In any event, I was not convinced that the difference matters for the Court's "legitimacy."
But here is a thought that might change my mind. There is an open question whether conduct that was constitutionally protected when performed at T1 can be punished or sanctioned at T3 after precedent changes and that conduct loses its constitutional protection at T2. This can happen in two ways. 1) An existing law,de-zombified, is enforced against a rights-holder; the rights-holder's pre-new-precedent conduct violated the law, so she becomes subject to successful enforcement of the law following the change ; or 2) Following the change, government enacts a new law, imposing civil (not criminal) sanctions and made expressly retroactive, and the law is enforced against a rights-holder's pre-new-precedent conduct. Jonathan Mitchell (the source of S.B. 8 and its imitators) argues that either is permissible. Precedent functions as a judicially imposed non-enforcement policy; when that non-enforcement policy changes because judicial precedent changes, the rights-holder can be liable for conduct that violated the statute.
If Mitchell is right,decisions eliminating a right (Dobbs) are different from one that does not eliminate a right (Brown). The former imposes new consequences on rights-holder for old conduct; the latter does not. Or the difference triggers some forward-looking due process concerns.
I would not frame this as legitimacy. But it implicates an additional layer of constitutional concern going forward.
Posted by Howard Wasserman on October 3, 2022 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Tuesday, September 20, 2022
The wrong abstention
The district court held a hearing in the lawsuit by Tampa DA Andrew Warren against Ron DeSantis for suspending him from office. The court from the bench granted the state's motion to dismiss the state claims (under Pennhurst), denied the motion to dismiss the First Amendment claims (more below), and denied Warren's motion for a preliminary injunction reinstating him.
I thought the court should abstain under Pullman. There is an open question of whether the suspension was proper under the state Constitution; if it was not, Warren is entitled to reinstatement without the federal court resolving the (uncertain) First Amendment issue. This case matches Pullman--state action of uncertain state-law provenance arguably violates the federal Constitution and the federal courts holds on the federal issue to allow state courts to resolve the potentially dispositive state issue. Pullman is disfavored, especially in First Amendment cases, but the case seems the rare one that fits. But the state did not argue Pullman, citing it only for a general proposition about federalism.
Instead, the state argued Younger--that the federal court should abstain in deference to the Senate proceeding that reviews the governor's decision and either formally removes or reinstates the official. The states describes the proceeding as ongoing and judicial in nature, serving an important state purpose worthy of comity deference, and providing Warren an adequate opportunity to raise his First Amendment defenses.
The state messed up the Younger analysis by not citing Sprint or placing the Senate proceeding in a Sprint categroy. Presumably it is # 2 (certain civil actions akin to criminal cases). But the state must explain why it fits--whether the state is a party, whether it has the trappings of a criminal proceeding by following an investigation and charge, and whether it is designed to punish for past misconduct. It is iffy on the second, but otherwise fits that category. If an administrative proceeding (e.g., attorney discipline) is sufficiently judicial, this Senate process should be.
But this raises a different issue within Younger. One Younger premise is that abstention forces the rights-holder into defensive state litigation, but with possible (albeit not guaranteed) federal review of the federal issues in SCOTUS under § 1257. It appears that Senate review of removal constitutes the last word, not subject to state judicial review and therefore not subject to SCOTUS review (the Senate is not the "highest court" of a state). Unlike an administrative proceeding reviewable in state court and thus to SCOTUS, the Senate proceeding, however "judicial" in nature and however able Warren is to raise the First Amendment, does not provide a path into the state judiciary and thus to SCOTUS. And perhaps that explains the denial of abstention.
Posted by Howard Wasserman on September 20, 2022 at 06:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, September 15, 2022
Morissette, J., dissenting
A 5-4 Court on Wednesday denied Yeshiva University's request for a stay of a state-court preliminary injunction requiring it to recognize an LGBTQ+ undergrad student group. The majority (the Chief, Sotomayor, Kagan, Kavanaugh, Jackson) pointed out that Yeshiva had not sought a stay or expedited review in the state courts. Unlike the typical shadow docket case, the Court cannot hear this case on the merits for several layers of review. Justice Alito dissented for Thomas, Gorsuch, and Barrett. Typical shadow-docket stuff--it is obvious how we will rule on the merits of this religious-liberty claim so do not waste time with procedural niceties such as multiple layers of review.
Here is the interesting piece. Alito cites National Socialist Party v. Skokie for the proposition that a state-court denial of a stay is a final order--ignoring that the Illinois Supreme Court had denied that stay and expedited review, whereas here the trial court denied the stay and Yeshiva never asked the state appellate court or the state high court for a stay or expedited appeal. He then says "It is ironic that the theory that supported a stay in that case is eschewed here."
In what way is this ironic? Is it because Jews are involved in both cases? Does it matter that Jews were not party to Skokie? Was that case inherently Jewish because it involved Nazis? Is it less ironic if the non-Jews of Skokie, hopefully, also were not thrilled to have Nazis marching there? Does it matter that the Jews were targeted in Skokie as an ethnic group rather than religious (since Nazism does not distinguish religious from non-religious Jews). And what if, like many Jews, one believes the Nazis should have been allowed to march and Yeshiva should be required to recognize the student group--does it cease to be ironic?
Posted by Howard Wasserman on September 15, 2022 at 09:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Tuesday, September 13, 2022
The politics of abortion (Update)
Lindsay Graham introduced the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act. The bill bans abortions after 15 weeks, with rape, life, and health exceptions. It provides for prosecution of the provider but not the pregnant person and for civil actions by the pregnant person or minor parents but not the pregnant person.* It also provides that it does not preempt or limit any law imposing greater limits on abortion--in other words, it does not yield to a Red-State complete ban but does override Blue-State laws allowing Roe-level abortions until viability. The bill identifies the Commerce Clause and § 5 as the power sources, although the substantive sections do not contain an "affecting commerce" element and I am not sure a bill recognizing fetal rights (how this is framed) is congruent-and-proportional to current 14th Amendment doctrine.
[*] Federal standing law prevents a full-on HB7 private right of action, although I am surprised they did not try and force providers to defend.
I wonder about the partisan politics of this. Two months prior to an election in which polls show Democratic voters mobilized around opposition to Dobbs and the loss of reproductive freedom, extreme state laws, and the consequences of banning medical procedures, the bill places the issue in the public eye and forces a public vote on that issue. Why, the argument goes, would Senate Republicans want to increase that energy and engagement?
So what do Graham and Senate Republicans hope to get out of this?
1) Energize the base by showing a willingness to fight to stop abortion when it makes a difference (unlike performative pre-Dobbs legislation). The bill gives a restrictive baseline--like Mississippi and more limited than under Roe--and leaves states free to legislate greater restrictions, all the way to a complete ban. It gives the anti-choice voters something to get excited about at the federal level. The questions, I guess, are whether the GOP was in danger of not having those voters and whether they will be outnumbered by enraged pro-choice voters.
2) It provides a grand bargain on abortion, finding the middle ground that some (David French comes to mind) believe is inevitable. But the preemption clause undermines that conclusion--the bill expressly allows Idaho to ban all abortions but stops California from providing greater access. That is not a grand bargain under which the entire country falls--this is setting a federal ceiling while letting states go as low as they want.
3) Polls shows that a good percentage of the public would set the line at 15 weeks. Graham et al believe they have a political winner in forcing Democrats to vote against a bill that resolves the abortion debate where many people would like it drawn. They also can emphasize that 15 weeks is a larger window than Europe** and count on the press to misreport it (always a good bet). Again, I think the preemption clause undermines this, for those who read the bill. But it may help create a narrative of "Democrats want extreme ranges for abortions, beyond even what those European Socialists allow."
[**] True but misleading. Some European countries stop abortions sooner than this. But it is much easier to get the procedure within 10-12 weeks than in most U.S. states--more places to go, less costly, public support for the poor, no waiting periods and other hurdles delaying and forcing multiple trips to the doctor.
4) Check the bill title--"Late-Term Abortions Act." They are counting on the press reporting this as a ban on "late-term abortions"--which most people support but which most people think of as something like post-32 weeks (or certainly post-viability), not two months pre-viability. Mississippi did not defend its 15-week ban in Dobbs as "late-term." But the narrative "Democrats voted against stopping late-term abortions"--rather than 15 weeks--may work for the Republicans. Again, it depends on media malpractice, but that is a good bet.
5) Distract from Donald Trump, Mar-a-Lago, etc. Graham carries Trump's water, but that is a bit too conspiratorial.
Update: Looks like # 3, with perhaps a bit of # 4). Graham wrote this thread in response to Nancy Pelosi's response to the bill. He hits the expected points: This bill is to the "left" of those in Europe; opposition means Democrats want abortion on demand; and hoping "voters are paying attention to the radical nature of the Democrat party when it comes to abortion."
Posted by Howard Wasserman on September 13, 2022 at 04:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)