Thursday, June 10, 2021

Opinions and Assignments

Two thoughts as the Court again issued one opinion (from November)

1) Since May 17, the Court has issued twelve opinions in seven "opinion days," issuing two or more opinions three of those days and one opinion on each of the remaining four. The Court has issued one opinion on eleven of its opinion days this Term. They have 21 argued cases left and three weeks in the Term, so likely six opinion days and an average of three opinions per day. And those that remain are among the most controversial and most important. Obviously the Court can issue opinions only when they are ready and cases with more and longer opinions take more time. But it is hard to avoid the sense that the Court is doing the equivalent of a "document dump"--dumping out major opinions in a flood, overwhelming those whose job it is to parse, understand, and critique the Court's work in the immediate political moment. This is distinct from the longer scholarly term. Scholars can write articles about these cases whenever and the timing of their issuance does not matter. But scholars also do and should provide immediate comment and critique and that is impossible when every day produces multiple major decisions.

2) Thursday's decision in Borden was a 4-1-4 split. Kagan wrote for Breyer, Sotomayor, and Gorsuch; Thomas concurred in the judgment; Kavanaugh dissented for the Chief, Alito, and Barrett. So a question: Who assigned this opinion, Breyer or Thomas? The practice is senior-most associate justice in the majority. Is it the majority for the judgment/outcome? So at conference, Thomas, Breyer, Sotomayor, Kagan, and Gorsuch vote to reverse, the assignment goes to Thomas, and if the writer (Kagan, in this case) loses a majority in the course of drafting, oh well? Or if at conference it is obvious that Thomas' views (apart from the result) are different than Breyer, et al., Breyer assigns? The former would seem to be more administrable because one never knows if the write can get a majority until she tries. The same issue arose with June Medical last Term--did the Chief assign the opinion because he was in the majority to reverse or did Ginsburg assign because the Chief's reasoning was always different? Does anyone know for sure?

3) Rick Hasen gets it and it amazes me that Justice Breyer does not appear to. It is one thing for Breyer to continue to believe the Court is not nakedly political. It is another thing to have watch Mitch McConnell for the past decade and not recognize what would happen.

Posted by Howard Wasserman on June 10, 2021 at 11:52 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, June 08, 2021

Speech and blame-shifting

There is a high burden to holding speakers liable for misconduct by others--absent some agreement or conspiracy, there must be intent that listeners engage in unlawful conduct and temporal imminence between the speech and the unlawful conduct. In part this is about freeing speakers to use rhetorical hyperbole and to be "vehement, caustic, and sometimes unpleasantly sharp." It also frees speakers to speak without fearing liability because of the actions of the lowest-common-denominator listener. And it places the blame on those who engage in misconduct--where it belongs--and removes (or at least limits) the option of excusing action by blaming the speech one heard.

We saw this in efforts in the '80s and '90s to regulate pornography on the ground that it conveyed messagess about sex and women, signaled to viewers that it was ok to sexually assault women, and even planted ideas in viewers about whether and how to engage in sexual assault. The arguments against those efforts raised this LCD issue--we do not set legal rules for the LCD (even in those areas without the shadow of the First Amendment) and we should not give those who engage in unlawful actions an excuse for those actions. More recently, we saw this in litigation against activist DeRay Mckesson attempting to hold him liable for negligence arising from violent actions by an unknown person during an anti-police-violence demonstration that Mckesson organized.

I am reminded of this in stories about Capitol Insurrection defendants (here is the latest) attempting to excuse themselves from pre-trial confinement and (presumably) ultimate conviction by insisting they were duped or manipulated by the speech of Q-Anon, Donald Trump, NewsMax, and a host of other speakers and platforms spreading lies about the election and the opportunity to rise above "his ordinary life to an exalted status with an honorable goal." They were helpless against the onslaught of lies, but their eyes are now open, thus they no longer are a threat to the public and not bad people who did bad acts deserving of punishment.

"The devil made me do it" is too pat. Even if one accepts (as I do not) that Brandenburg's requirements are too high and that it should be easier to impose liability on speakers, I think we can agree that the person whose actions cause an injury is more culpable than the speaker and should not be able to use bad speech and bad speakers to excuse or reduce the consequences of his misdeeds.

Posted by Howard Wasserman on June 8, 2021 at 10:57 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Naomi Osaka and the ADA

The following post is by my FIU colleague Kerri Stone, who writes on employment discrimination. I solicited her thoughts on Naomi Osaka.

On May 26, 2021, 23-year-old tennis phenom Naomi Osaka stunned the world by proclaiming on social media that out of a desire to protect her mental health, she refused to partake in mandatory press conferences during her participation in the French Open. After incurring a $15,000 fine for this refusal and threats of further sanctions from organizers of the French Open and the other Grand Slam tournaments, she announced her withdrawal from the tournament.

Universally recognized as one of the most “marketable” athletes in the world, Osaka, who, in 2020, had earned the distinction of being the highest-earning female athlete of all time by annual income, announced that she has been struggling with depression. She decried "people [with] no regard for athletes' mental health,” noting that "We're often sat there and asked questions that we've been asked multiple times before or asked questions that bring doubt into our minds and I'm just not going to subject myself to people that doubt me."

As many commentators have pointed out, Osaka’s exodus has thrust into the spotlight issues of mental health and self-care among everyone in workplaces from sports arenas to boardrooms to factory floors. Words of support and encouragement have poured in for Osaka from athletes and celebrities ranging from Serena Williams, to  Stephen Curry.

            Because the tournament at issue, at Roland-Garros, is not held in the United States, US law does not apply. Moreover, we know nothing about Osaka’s mental or emotional state, other than what she has shared. We do not know whether she would ever claim or be capable of being shown to be disabled so as to entitle her to protection under any law. But many now wonder what would happen if someone who did claim that depression, anxiety, or another mental impairment rendered them disabled within the meaning of the Americans with Disabilities Act (“ADA”), were to be fired from a job or excluded from an event after they refused to participate in a requirement that they deemed too corrosive to their mental health. Under the ADA, an individual deemed disabled within the meaning of the Act (via a physical or mental disability) may not be discriminated against because of their disability and is entitled to an affirmative reasonable accommodation that may be needed.

            This hypothetical case immediately reminds me of a 2001 Supreme Court case that I analyzed over a decade ago, when discussing the varying amounts of deference that courts give defendants in ADA cases: PGA Tour, Inc. v. Martin. In that case, the PGA refused to allow Casey Martin,  a pro golfer stricken with Klippel-Trenaunay-Weber Syndrome, a degenerative condition that impeded his ability to walk, to use a golf cart to get around during PGA Tour competition, as he had been permitted to do in other, lower-level tournaments. The Supreme Court held, over the PGA’s strident protestations, that walking the course was not an essential part of the game of golf and that no real disadvantage would be imposed upon Martin’s opponents due to the accommodation of a golf cart to transport him from hole to hole.

In a previous article, I noted that the case was somewhat remarkable, in that the PGA was charged with the administration and regulation of professional golf, a sport whose rules, by all accounts, are inherently arbitrary. Unlike a more objectifiable “essence” (such as of a pizza business to sell pizza) or “essential function” (such as of a fire department to fight fires, perform rescues, etc.), the rules/requirements of any sport are typically precisely what the regulatory body overseeing the sport and administering its competitions says they are. As dissenting Justice Scalia famously quipped, if the majority could answer the question “What is golf,” in a way that put it at variance with the PGA itself, then “One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son’s disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)”

            In Martin, as would likely happen here, the plaintiff, though a professional athlete, was not considered an “employee” of the PGA  such that he could pursue a claim under Title I of the ADA; rather, he needed to use Title III, which covers public accommodations. Under title III, a plaintiff is entitled to a reasonable accommodation so long as it does not threaten safety or effectuate a fundamental alteration of the defendant entity or that which it purveys. The Supreme Court in Martin held that despite the PGA’s contention that as the arbiter of professional golf and its rules it could proclaim that walking was an essential element of the game, it would not effect a fundamental alteration of the PGA Tour’s highest-level tournaments if Martin were afforded the use of a golf cart.

What does this tell us about how our hypothetical might play out? There are several key points to keep in mind. In the first place, Martin is considered good authority for the proposition that even in the case of a sport or sports tournament whose purpose is leisure and recreation, the regulatory body of the sport is not entitled to the final word or even to high levels of deference when it comes to defining the rules of the sport or the essence of the defendant entity.

So where does that leave us? Assuming that our hypothetical plaintiff could establish that she is disabled within the meaning of the ADA and the issue was her entitlement to refuse  to comply with the tournament’s requirement that she make herself available to the press after competing, the issue would boil down to whether an exemption from the press conferences would be a reasonable accommodation or whether it would constitute a fundamental alteration of the tournament. Unlike in Martin, this requested accommodation could probably not, at first blush, be argued to confer a physical, athletic, competitive advantage (though the Martin Court did give this issue thorough consideration). It is an interesting question as to whether a defendant might try to argue that the press conferences are so draining and deleterious to an athlete’s psyche that avoiding them might amount to an advantage, or whether that might not be a thing that would be auspicious for the USTA to put out there.

However, a defendant that made participation contingent upon press availability would need to argue that the ability to face the press and answer even aggressive questioning is essential to making the tournament what it is. Selling tickets, procuring ratings, and keeping the tournament relevant and current is dependent upon permitting the public a window into the athletes’ reflections upon and reactions to their performances. Inasmuch as probing into these innermost thoughts may cause stress, embarrassment, or perseveration, the state of social media and the public’s increasingly handy access to and hunger for sports heroes’ and other celebrities’ thoughts and feelings necessitates the press conferences. They are as much a part of the essence of the tournament as the competition itself. Would a court buy this? Might a court be persuaded that in the age of social media and instantaneous access to celebrated public figures, fan access to athletes’ personas, including their most agony-filled defeats and regrets, is now necessary in a way that maybe it didn’t even used to be? To the extent that a reasonable accommodation could be argued to be an athlete’s furnishing this access through written statements or some other less immediate means of communication, could a court nonetheless be persuaded by a defendant that the buffer of time and space to prepare responses and the filter of the keyboard failed to yield sufficiently direct, raw access?

This is not to say that the defendant would necessarily win this case. Our hypothetical plaintiff might be, like Osaka, a personally and professionally compelling figure who is pushing back on not only the rules of this tournament, but on the idea of the public’s entitlement to this kind of access—especially when it causes and inflames harm and/or is deemed unnecessary. A court adjudicating the dispute would have wide latitude in determining the questions of the “essence” of the event and of the “fundamental alteration” or transformation that the requested accommodation could cause. Any number of considerations—including increasing societal recognition of the sanctity of the mental health of athletes (and all people trying to earn a living) at work, the evolving nature of what it means to be a public figure, the public’s insatiable hunger for access to athletes’ post-game thoughts and opinions, or even individual judges’ conceptions of “What is this tournament—to me”—could factor into the final determinations.

A case like our hypothetical would thrust the issue of workplace bullying into the spotlight. Only Puerto Rico and no U.S. state has passed comprehensive legislation that makes status-blind workplace bullying unlawful. This failure of legislatures to act has occurred despite high-profile stories about how celebrities and athletes have been driven from their workplaces and even from their careers by workplace bullying. Years ago, I pointed to the compelling case of Jonathan Martin, a talented, successful Stanford graduate who was driven from his career in professional football when Richie Incognito and other Miami Dolphins teammates tormented him. This torment took the form of both abhorrent race-based abuse as well as more generic bullying. Many scholars bemoaned the failure of the law and law makers to take not only bullying but the mental health of those at work seriously enough.  It should not be lost on anyone that Martin and Osaka are Black, and many of us have pointed to the impact and compounding effect of systemic racism and sexism on so-called “status-neutral” bullying.” Not only does “neutral bullying” often accompany race-based abuse as with Jonathan Martin, even when it doesn’t, it still befalls and, some studies say, affects, women and minorities more than it does others.

Last, but far from least, a comparison of the hypothetical case of an athlete who sought to avoid a contentious press conference for the sake of her mental health with the Martin case should also draw a comparison between the way we address and compel accommodation of physical disabilities and mental/emotional disabilities at work or in places of public accommodation. Michael Perlin has written extensively about sanism, "an irrational prejudice of the same quality and character of other prevailing prejudices such as racism, sexism, heterosexism and ethnic bigotry that have been reflected both in our legal system and in the ways that lawyers represent clients.” Would a case brought by someone with a disability that was not physical lay bare the differences in the ways in which the law and society regard and address mental disabilities?

I am working on an article that will seek to address these and other issues raised by this very compelling news story. I am interested in hearing others’ thoughts.

Posted by Howard Wasserman on June 8, 2021 at 09:31 AM in Employment and Labor Law, Law and Politics, Sports | Permalink | Comments (0)

Wednesday, June 02, 2021

More stupid lawsuits, ep. 81

Something called the "Job Creators Network" has sued MLB, MLB Commissioner Rob Manfred, the MLBPA, MLBPA Executive Director Tony Clar, and a bunch of John Does, claiming constitutional (equal protection and Dormant Commerce clause) and contract claims over MLB moving the All-Star Game from Atlanta to protest Georgia's voter-suppression laws. Nothing new here; more bad lawyering by bad lawyers using the courts to make political noise. Some thoughts on where this goes wrong.

MLB Under Color:

The § 1983 claim depends on MLB acting under color. The complaint tries to get there two ways, neither of which works.

The first, passing argument, is that MLB is not covered by the antitrust laws, a substantial benefit. Receipt of governmental benefits, disconnected from the challenged conduct, is not sufficient to place a private actor under color. This is not a case in which government gave a private actor a benefit on condition of the private actor doing something constitutionally violative. Quite the opposite. MLB's decision to move the game pissed off some congressional demagogues, who threatened to strip MLB of its antitrust exemption.

Moreover, if the antitrust exemption were sufficient, the alleged benefit comes from the federal government, not the state or local government. MLB therefore would be color of federal law and this would be a Bivens claim (in a new context, so not going anywhere), not a § 1983 claim.

The primary argument is that MLB teams act under color by virtue of playing in publicly owned or publicly financed stadiums; thus MLB, as an association of those teams, acts under color. Two problems. First, while I agree that playing in public stadiums places teams under color for some purposes--namely running those ballparks during games--it does not make them under color for all purposes. The Yankees are perhaps bound by the First Amendment in regulating fans' cheering speech during games at the publicly owned stadium; they are not bound by equal protection in firing a ticket-office employee. So if the teams are not under color for all purposes, MLB is not under cover for all purposes. Second, and more conclusive, a private association of state actors located in multiple states does not act under color because it is not tied to the law of any state. The NCAA does not act under color despite having actual state entities--public universities--from multiple states as members. It follows that MLB, which stands in the same position to teams as the NCAA does to schools, does not act under color.

Diversity Jurisdiction:

This is minor and not outcome-determinative, but the Civ Pro geek in me remains amazed at how often lawyers get diversity wrong.

According to the complaint, the following is true: The JCN is a not-for-profit corporation, incorporated in DC with its PPB in Texas.  MLB is an unincorporated association whose members are the 30 teams; it is a New York entity with its PPB in New York. The MLBPA is the players' union, a New York entity with its PPB in New York. Manfred is a New York citizen and Clark a New Jersey citizen. The complaint does not say so, but I believe the plaintiffs see this as  JCN(TX/DC) v. MLB (NY), MLBPA (NY), Manfred (NY), and Clark (NJ).

But an unincorporated association's state of creation or PPB is irrelevant; what matters is the citizenship of its members. The complaint acknowledges that MLB's members are the 30 teams, all of which are corporations or unincorporated association; if the latter, we need further level(s) of inquiry as to the members/partners of each team and perhaps the members/partners of each member. MLB therefore is not a New York citizen (or not solely a New York citizen); it is a citizen of any state in which a member/partner in any team ownership group is a citizen. We do not know every state, I imagine at least one team has at least one member who is a citizen of Texas or DC. Similarly, a union's state of creation or PPB is irrelevant; it is a citizen of every state in which a union member is a citizen. Again, I imagine at least one current MLB player is a citizen of DC or Texas.

This does not matter to the outcome of the case, because the complaint alleges (and there is) supplemental jurisdiction over the state claims. But I become skeptical of any complaint when the attorney gets the basics so wrong.

Standing

JCN purports to be an association of small businesses injured by MLB moving the game. It asserts associational standing on behalf of its members and organizational standing for the time and money it has spent fighting MLB's actions.

The problem is that the claim seeks primarily damages as a remedy, whereas associational standing works in injunctive actions. One element of the Hunt test for associational standing is that "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Damage are, by definition, individualized to each plaintiff and thus require the participation of each member. The complaint attempts to get around that by asking the court to order that the defendants pay damages into a common fund, from which moneys are distributed to each plaintiff. But that is not how damages are calculated or awarded. I cannot think of a major constitutional case in which an association has been able to pursue damages on behalf of its members.

Remedies

The complaint asks for compensatory damages of at least $ 10 million and punitive damages of at least $ 1 billion, as well as an injunction ordering MLB to move the game back to Atlanta. That injunction is not happening. The punitive damages request is interesting because a punitive-damages ration exceeding 10:1 presumptively violates due process.

The least-stupid contract claim might be promissory estoppel, although that still fails. But even if it worked, the damages on a P/E claim are limited to what was spent in reliance on the promises, not what they would have made had the defendants followed through on their promise. Did businesses spend $ 10 million+ on the expectation of the game coming to Atlanta?

Whither the First Amendment

At its core, the claim here is that by engaging in the First Amendment activity of protesting Georgia election policy through its business decisions, MLB, et al. interfered with the power of Georgia to enact policy and the equal protection rights of those who support those policies. The Complaint spends some time defending Georgia's new laws, as if the propriety (in the plaintiff's views) of the laws lessens the First Amendment rights of those who protest. I do not believe the level of First Amendment protection for expressive activities turns on the "correctness" of the position asserted. That would have some broad implications.

Posted by Howard Wasserman on June 2, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, June 01, 2021

When Is It Too Soon to Call a Catastrophe a “Genocide”?

The following post is by my FIU colleague Hannibal Travis.

At an interesting event held by the United Nations General Assembly, with the UN Secretary-General Antonio Guterres and delegates from many nations in attendance, the question of the “g-word” came up.  On the topic of “Multilateralism and Diplomacy for Peace,” the General Assembly president, Volkan Bozkir, responded to a question from an Armenian diplomat regarding denial and justification of past genocides being a “test of multilateralism” and the principles of the United Nations regarding the peaceful resolution of disputes.  Mr. Bozkir stated that in “order to describe an incident as genocide, a competent international tribunal must make a decision to that effect,” and that in April of this year, a spokesperson for Mr. Guterres had “reiterated that genocide needs to be determined by an appropriate judicial body, as far as the UN is concerned.”  By that standard, it may be too soon for the United Nations to label as “genocide” the Armenian catastrophe, or the great anti-Armenian crime (Meds Yeghern).   

For Michael Berenbaum, a project director for the emerging United States Holocaust Memorial Museum and the first director of its Research Institute, the U.S. House and Senate resolutions of 2019 and presidential statement of 2021 recognizing the Armenian genocide did not come too soon.  The very word “genocide,” he argues, was used and invented by Raphael Lemkin “to speak of the Armenian genocide.”  

Advocates of Armenian genocide recognition point out that the UN does not often wait for an international tribunal to make a final decision on a genocide before the UN opines on whether one has occurred.  In 1985, a study prepared at the request of the UN Commission on Human Rights, for example, named the “massacre of the Armenians in 1915-1916” as a “genocide.”  At least 40 U.S. states and many national parliaments followed suit, as did the European Parliament in 2006 in a resolution that also referred to Assyrian and Greek victims.  (Incidentally, Lemkin wrote in 1948 not so much of an “Armenian genocide” as of a broader phenomenon – “the destruction of the Christians under the Ottoman Empire” – in promoting a genocide treaty; similarly, the House of Representatives in 2019 referred to a genocide against Armenians and “Greeks, Assyrians, Chaldeans, Syriacs, Arameans, Maronites, and other Christians,” whereas the presidential commemorative statement of 2021 referred only to Armenians even though it mentioned other Christian orphans and refugees as being affected by the same events.) 

In 1992, the General Assembly called the tragedy of ethnic cleansing in Bosnia and Herzegovina a “form of genocide,” after noting that human rights violations and mass refugee flight had happened.  The resolution also acknowledged that the Security Council had not even begun considering creating an international war crimes tribunal with jurisdiction over acts committed in Bosnia and Herzegovina.  The UN’s own records also designated the extermination of the Jews in Germany and occupied Europe and North Africa as a “genocide” before a genocide treaty had been signed, let alone enforced in court.

Waiting for a tribunal to declare a genocide could involve substantial delays in the effort to salvage the victims’ lives by such means as providing a safe haven, an independent country, an arms embargo, a UN or regional force to restore order, housing and land restitution, psychosocial counseling, or medical treatment.  It can take about three years for the memorials to be filed and preliminary objections to be heard in an interstate case involving state responsibility for genocide, such as Bosnia and Herzegovina v. Serbia and Montenegro.  It can take even longer than that, or more than a decade, for significant movement to occur in a genocide prosecution at the International Court, such as the “Darfur situation.”  The first chance to begin to assess the guilt of a suspect in the Darfur genocide at the ICC came in March of 2021, involving events that took place starting in 2004.  The Genocide Convention states that genocide has occurred throughout history and that all parties to the convention have a duty to punish the crime; while it states that all trials should be before a competent domestic or international tribunal, it does not state that all punishments must be meted out to natural persons after a trial.

There remain very few survivors of the events of 1914-1918 in the Ottoman Empire, or even of the events of 1919-1925 which followed and involved further massacres and denials of a homeland.  In that respect, many of the considerations which might persuade a diplomat to seek genocide recognition in order to advance an ongoing agenda of civilian protection carry less weight in the Ottoman case.  Scholars who write on the Armenian genocide therefore emphasize the ongoing character of the events, including reduced populations, lower birth rates as a result of physical violence and impoverishment, impacts of trauma on lifespans, and compromised cultural and religious traditions due to “dispersion.”

Other reasons not to recognize a genocide with resolutions or statements such as those that the United States issues include the following: politicians should not be the arbiters of what happened in history, recognition of important human milestones both for good and evil should be balanced rather than selective, contemporary political and strategic relationships are more important than proclamations about the past, and congressional or White House procedures may be twisted towards biased ends.  While each of these reasons has some validity, politicians make a variety of factual and historical findings and commemorations in the course of shaping legislative or executive policy and proclamations.  There are more urgent matters to investigate from the standpoint of the present moment than how to conceptualize the Armenian catastrophe as a matter of U.S. policy, but there are also other far less significant statements that are made in the annals of Congress, in the halls of the White House, or on a U.S. website.  The selectivity of U.S. proclamations is also obvious, especially given the executive branch’s policy of opposing judicial inquiry into allegations of internationally wrongful acts by the United States or its allies (whether in the International Court of Justice, the federal courts - update, or in foreign courts).  Perhaps rather than giving up on commemorating events with legal concepts that capture some of their gravity, politicians could strive to be even-handed across nations and situations, including their own nation and situation.  Finally, while the strategic situation of the United States is beyond the scope of this post, it is not as if the period during which the presidency and the Congress denied the Armenian genocide (beginning in the late 1980s or thereabouts) was uniformly characterized by greater security and reduced Middle East tensions.  Nor was Turkey’s role always a benign one during this period.

Posted by Howard Wasserman on June 1, 2021 at 09:31 AM in International Law, Law and Politics | Permalink | Comments (0)

Sunday, May 30, 2021

Standing for (a challenge to) the national anthem or Standing up to zombie laws

There is a potential problem surrounding challenges to Texas' new law requiring the national anthem be played before all professional sporting events that receive state or local funds: While the law is a zombie, there may he problems challenging its validity in court.

No Texas-based professional sports team (there are 13) has indicated that it does not want to play the anthem. This kerfuffle began in February because the Mavericks did not play the anthem before pandemic games in empty arenas, but the team resumed playing it mid-season once everyone freaked out and once fans returned to the venue. That means no one will want to litigate the issue because no one will object to the legal requirement that they do something they intended to do.

Alternatively, if a team that did not intend to not play the anthem brought a lawsuit, it would be dismissed for lack of standing. The team could not show an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute. The team does not suffer an injury-in-fact if it does not wish to engage in the conduct (not playing the anthem) regulated by the law.

Moreover, no team appears to have a choice, because every league requires its teams to play the anthem. That again means no injury because the team is not able to engage in the constitutionally protected conduct. It also means no traceability and no redressability. The obligation to play the anthem, even against the team's wishes, comes from the league, not the Texas law; the team would be obligated to play the anthem if the law did not exist and an injunction prohibiting enforcement of the law would not allow the team to play the anthem.

The opening may be that the law is not written as a regulation ("all teams must play the anthem"). It imposes a contractual obligation--all contracts under which teams would receive public funds must include a provision in which the team promises to play the anthem and a provision stating that failure to play the anthem constitutes a default, subjects the team to a penalty, and may bar the team from future public contracting. A team thus could establish standing based on the injury of having to make the promise to play the anthem as a condition of receiving public funds, even if it intends to (or must, per league rules) play the anthem. Having to make the contractual promise violates the First Amendment and injures the team, even if it intends to comply.

I hope the latter is the case. Otherwise, the state could enact performative zombie legislation aimed at a non-existent problem and immunize that legislation from challenge because there is no actual problem. Meanwhile, state officials would point to teams playing the anthem and say "see, our law worked and we are protecting your interests and the interests of America."

Posted by Howard Wasserman on May 30, 2021 at 12:02 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, May 27, 2021

Even First Amendment violations are bigger in Texas

Texas must have been jealous that Florida was getting all the attention for enacting laws that violate the First Amendment to an extraordinary degree. Especially after it failed  to pass its social-media bill, to the consternation of Lt. Governor Dan Patrick.

Fortunately, the legislature did find a way to trample the First Amendment. The House passed the Star Spangled Banner Act (previously passed by the Senate and sure to be signed by the governor, again in response to Paxton's demagoguery), requiring that all contracts for services between professional sports teams and state and local entities that provides public funds include a promise to play the national anthem at the start of every event. It takes effect on September 1, although if history is any guide, a lawsuit will be filed next week.

Give Texas credit. There are plausible visions of free speech that might accept government compelling social-media sites to accept all speakers or to limit their power to bar speakers, given their role as forums for expression. I do not share the vision, but it is plausible. There is no plausible universe, barring SCOTUS overruling three or four precedents, under which the state can condition funds on private entities performing mandatory patriotic rituals.

Posted by Howard Wasserman on May 27, 2021 at 05:54 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

That did not take long

On Monday, Florida Governor Ron DeSantis signed the law purporting to regulate whether and how social-media sites decide who can use their sites. On Wednesday, I appeared on a local NPR program (first segment) discussing the law and predicting lawsuits, and quick TROs or preliminary injunctions, on July 1, the day the law takes effect. I missed it by 35 days--a lawsuit was filed Thursday in the Northern District of Florida by two trade associations representing most of the major social-media and tech companies, including Facebook and Twitter.

My favorite feature, besides the obvious First Amendment arguments--the bill includes a carve out for any company that operates a theme park, a clear sop to Disney. Count III is an equal protection claim, challenging that specific carve-out.

Preliminary injunction coming soon.

Posted by Howard Wasserman on May 27, 2021 at 04:16 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Further Updates on the procedure of the Texas fetal heartbeat law

A few points in update to my post on the Texas fetal heartbeat law and the procedural insanity it spawned, following some developments and some discussions on the Civ Pro Prof Listserv.

• My proposal (made not entirely seriously) that providers change domicile to create diversity and remove the enforcement action would not work. A listserv member pointed out that the district court upon removal would not dismiss for lack of standing, it would remand, putting the case back in state court. In addition, it would be too easy to avoid; Billy Bob could join a Texas-based doctor as defendant and eliminate complete diversity. I did not think that one all the way through.

• Another pre-enforcement option floated: Sue the state-court judge assigned to hear the private action. This raises the same Younger problems as suing Billy-Bob-as-state-actor, but not the state action problems. I do not believe this works for two reasons. First, a judge cannot be enjoined in the first instance in a § 1983 action; the plaintiffs must get a declaratory judgment first, then go back for a second round of litigation if the DJ is ineffective. Second, and more importantly, the judge is not the target of anti-suit litigation; the target is the litigant in that underlying litigation (such as the executive official charged with enforcing the law).  It would be highly unusual to enjoin a judge from allowing a case to go forward, although perhaps this is an extraordinary case.

• Some people seem a lot higher on the Lugar-based argument that Billy Bob acts under color. I hope not. I disagree with the Lugar line of cases and would not want it extended. And it would be deeply troubling if filing a lawsuit, without more, subjected someone to a § 1983 suit. Consider that MyPillow's lawsuit against Dominion, legal nonsense in current form, would look much different if this were the rule. I am more willing to go with the public-function argument, which is narrower and limited to a unique context in which a state delegates all enforcement to the private sector precisely to avoid pre-enforcement litigation. But I do not trust courts to find the nuance there.

• We have a test run for these arguments in a challenge to a Lubbock ordinance banning abortions within city limits and using private enforcement (although the complaint alleges some public-enforcement mechanisms, so it may be less clear than HB8). Planned Parenthood sued the city and the city moved to dismiss for lack of standing. Stay tuned.

• There is a separate question, which I am not competent to address, of whether Billy Bob will have standing to bring the private enforcement action under HB8. According to Charles "Rocky" Rhodes (South Texas), the expert on the Texas Constitution, Texas courts generally follow Article III standing doctrine, but are more accepting of standing when the legislature authorizes the suit.

• A wild proposal from a different emailer: What if a blue state created a cause of action against Billy Bob--allowing any person to sue for damages anyone who brings a claim under HB8? All sorts of extra-territoriality and personal-jurisdiction puzzles there.

• A different version: What if a blue state enacts a clawback statute, allowing anyone (or at least anyone within the blue state) held liable in a Texas HB8 suit to bring a claim in the blue state's courts to recover the amount paid in the Texas litigation. This raises a specific PJ question--is suing a New York corporation (knowing it is a NY corporation) in  a lawsuit that is tortious under New York law purposefully aiming actions at the forum for Walden/Calder purposes? (I believe there are legal malpractice actions that get at the same idea).

This also could raise issues about relationships among state judiciaries and whether the courts of one state can halt litigation in another. Countries enact clawback statutes designed to recover any judgment paid under the laws of another country (e.g., Japan allows a clawback action against U.S. antitrust plaintiffs). Federal courts are split on whether and why they can enjoin those proceedings to "protect or effectuate" their judgment in the underlying case. Could a Texas court, having issued a judgment for Billy Bob against Planned Parenthood, enjoin the NY clawback action?

Posted by Howard Wasserman on May 27, 2021 at 10:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, May 20, 2021

Procedural morass of the Texas Fetal Heartbeat Law (Updated)

Texas Governor Greg Abbott yesterday signed SB 8, a "fetal heartbeat" law that bans abortions as early as six weeks. What makes this different than the spate of similar laws from red states is that the law is not publicly enforceable. Instead, it creates a cause of action for "any person" to bring a civil action against any person who performs or induces an abortion or who aides or abets the performance or inducement of an abortion, the latter covering paying, insuring, and reimbursing the costs of an abortion, as well as (I presume) publicizing the availability or option of abortion. Remedies include injunctions, statutory damages of not less than $ 10,000 per abortion, and attorney's fees.

This is a mess, although picking it apart will take work.

A

Josh Blackman is correct about two things.

First, the ordinary route to challenging abortion restrictions--Planned Parenthood or other doctors and providers of reproductive-health services brings a pre-enforcement § 1983/Ex Parte Young action against the governor, AG, Secretary of Health and Human Services, or other public official for a declaratory judgment and injunction prohibiting enforcement--is not available. Because no government officials are responsible for enforcing he law, there is no "responsible executive officer" to sue or to enjoin from enforcing the law. Courts may frame this a number of ways--lack of standing (because the officer does not enforce the law, the injury is not fairly traceable to the officer or redressable by an injunction), sovereign immunity (the elements of the EPY exception are not satisfied), or (my preferred way) that official is not violating the plaintiff's substantive rights. The legislature is immune from suit for enacting the law. And, in any event, the existence of the law (the thing for which the legislature is responsible) does not violate anyone's rights.

Second, the enforcement actions will stay in state court, because any federal defense that the law is invalid is not a basis for removal. One workaround on this would be for providers to reincorporate and/or change their principal places of business out of Texas. That would create diversity jurisdiction and allow for removal on that basis. And once the case is in federal court, the defendant should be able to have it dismissed for lack of standing. There could be fun games with the amount-in-controversy requirement. Attorney's fees are generally not included in calculating the amount in controversy, so that remedy is excluded from the calculation. Would a plaintiff limit the claim to recovering the statutory minimum and only for seven abortions to keep it under the amount? What is the "cost" of a prevented abortion procedure? Alternatively, would we see plaintiffs coming from outside Texas to bring these actions? "Oh, Planned Parenthood is incorporated in New York, let's find a New Yorker to bring this suit."

Alternatively, this is where § 1443 would come in handy, as it appears this law will deny defendants the ability to assert certain rights (see below). But that provision is limited to state laws that deny federal equal rights, not to laws denying non-equality constitutional rights such as due process.

B.

The law attempts to limit or deny defendants the right to assert the constitutional rights of women to challenge the validity of the underlying abortion fetal-heartbeat ban as an affirmative defense. This is framed as a limit on third-party standing and as a statutory provision codifying the requirements of the constitutional test. It also removes the affirmative defense if Roe or Casey is overruled, even after the challenged conduct.

This demonstrates the problem with using the language of third-party standing to describe constitutional challenges to laws regulating and criminalizing the conduct of the providers bringing these actions. It is not third-party standing but first-party standing, because the challenged law regulates the party to the action. These cases do not involve a law prohibiting conduct by 18-year-old men and a lawsuit brought by the bar owner injured by the loss of business. These cases involve laws prohibiting conduct by and imposing punishments on reproductive-health-services providers. Planned Parenthood is asserting first-person standing to raise its own rights not to be held liable or sanctioned under a constitutionally invalid law. True, the law is invalid because it violates someone else's constitutional rights. But the law still targets the party to the action, not the non-party rights-holder. This looks more like United States v. Bond, in which the Court held that a defendant can raise federalism and separation-of-powers defects in the law under which she is prosecuted, without viewing it as vicarious assertion of state interests.

I came up with the following analogy: A state wants to silence a critical newspaper. It enacts a statute prohibiting "mean and critical speech" and creates a cause of action to sue for damages and attorney's fees the companies that provide ink and paper to the newspaper that publishes mean-and-critical speech. I believe a court would allow the defendants to argue that the law is invalid because it prohibits protected speech, even if the speech regulated (thus the constitutional right violated) belongs to the newspaper and not the ink or paper companies. The companies' conduct is regulated by the law and thus they must be able to defend themselves.

Is the civil action under SB8 materially different from that case? In both, someone is being made liable under an invalid law. Maybe the difference is (or should be) between pre-enforcement and enforcement actions. We might limit who can bring pre-enforcement challenges and what rights can be asserted in pre-enforcement challenges. But those limitations should not apply when the invalid law is enforced to impose liability on someone; that defending party must be able to raise the full range of defects in the law to avoid liability and damages.

To the extent the statute purports to limit defendants' ability to challenge the invalidity of the underlying ban, does that violate procedural due process?

Again, this gets litigated in Texas state court. Will state courts faithfully apply SCOTUS precedent to this zombie law and dismiss the enforcement actions? The assumption is that they will not, contra the assumption of parity that guides the study of fed courts. And SCOTUS could review the underlying defenses that the law is invalid. Would SCOTUS touch this? Would a majority object to the temerity of either the state legislature for enacting this or for the state courts in disregarding current precedent?

C.

An Erie problem, because this disaster has everything. Section 4 provides that an attorney or organization who unsuccessfully challenges the validity of any state law regulating or restricting abortion or funding of abortion or represents a plaintiff in an unsuccessful challenge, in state or federal court, is liable for the defendant's attorney's fees.

It is pretty obvious this cannot apply in federal court. An Act of Congress controls the question of attorney's fees in constitutional actions in federal court--§ 1988, which has been interpreted to make fees virtually automatic for prevailing plaintiffs but recoverable by prevailing defendants only if the case was frivolous and even then relatively rarely. So there is no room for the state law, which directly conflicts with § 1988, to operate.

Section 4 circumvents problem by providing a distinct cause of action to recover attorney's fees within three years of the end of the prior litigation. So a plaintiff who prevails in federal court could bring a new lawsuit in state court seeking fees. Does that create a converse-Erie problem?

D

This is a good, if unfortunate, lesson that most people in law and politics do not take procedural arguments seriously, but use them as cover for substantive preferences. The conservative legal project for 30+ years has been limiting standing and causes of action in environmental- and consumer-protection cases, including using Article III to defeat legislative efforts to enable private enforcement. I guess those limitations do not apply in the areas some people care about.

E (Update)

This is becoming a Fed Courts exam.

A reader proposes that the private state-court litigation under invalid state law equals state action under Shelley v. Kramer and New York Times v. Sullivan. So perhaps Planned Parenthood can bring a § 1983 action against the Texas plaintiff once the lawsuit is filed (but perhaps before service), seeking to enjoin the private action because the underlying law is invalid. I do not think it works, but it is worth exploring.

I describe this situation as state action without a state actor (or a person acting under color of law). There is state action in the creation of state law (statutory or common law) and its enforcement in state courts, thus the Constitution plays a role as a defense in the private litigation. The Shelleys could argue that equal protection means they must prevail in the state-court action to divest them of title to the property, The Times could argue that the First Amendment means it must prevail in the state-court defamation action, and Planned Parenthood could argue that due process protects it from liability for performing or facilitating abortions.

But it requires another step to say that Kramer (the neighboring property owner), Sullivan, or Texas anti-choice advocate Billy Bob Smith is a state actor (or acts under color of state law) and thus is subject to a § 1983 suit for filing those civil actions.  That generally does not happen in these state tort cases with constitutional undertones. And rightly so. A private person who avails himself of state law and state processes, even if constitutionally invalid, does not become a state actor and should not become a state actor. Think of the major constitutional decisions involving state tort or other causes of action; all arose as defenses in the civil action rather than by suing the would-be state plaintiff in federal court. Lugar v. Edmondson Oil represents the exception, where the Court found state action because the use of state law (ex parte pre-judgment attachment) required coordination with the clerk of court and the sheriff, so it was more than availing oneself of state law. (Lugar does the state-action work in the series of post-Janus actions to claw back previously paid agency fees). I happen to believe Lugar is wrong. If we are stuck with it, however, it should not extend to the situation of filing a lawsuit under presumptively valid state law.

On the other hand, let me try a different state-action argument that might work. Texas enacted a new law banning some conduct, then delegated to private individuals lacking any connection to the conduct at issue the exclusive power to enforce that law while declaiming all governmental enforcement. And it declaimed government enforcement specifically to prevent pre-enforcement challenges. Perhaps enforcing state law is a "traditional-and-exclusive government function," delegation of which creates a state actor. This is not to say that every private attorney general acts under color. But perhaps it is different if the government turns all enforcement to the private AG. That argument is at least non-frivolous.

If Planned Parenthood could get past that state-action problem, another hurdle awaits--Younger. In the ordinary case, Planned Parenthood would bring a pre-enforcement action in federal court against the responsible executive official to enjoin enforcement. But it has a time window in which to act--if the state initiated an action to enforce the abortion ban, Younger prohibits Planned Parenthood from running to federal court to enjoin that pending enforcement action. Under HB8, however, Planned Parenthood cannot sue the private plaintiff because it has no idea who the private plaintiff will be--it could be anyone. So it must await for Billy Bob to identify himself by filing the lawsuit, at which point Younger arguably kicks in.

But Younger is uncertain in three respects. First, under Sprint, Younger bars federal actions in deference to three classes of state litigation--criminal cases, civil enforcement actions brought by the state, and ordinary civil litigation involving court orders that are uniquely central to the state court's authority (e.g., contempt and pre-judgment attachment). Billy Bob's lawsuit does not fall within any of those three, unless the court extends the second category to include civil enforcement by a private attorney general. Second, if Younger applies to this type of case, it would test Younger's "flagrantly and patently violative" exception, because it is hard to imagine a law more flagrantly and patently violative under Roe/Casey than a ban on abortions at six weeks, before many women know they are pregnant. Finally and alternatively, this might fit the bad-faith exception, because the plaintiff could not win a valid (under current judicial precedent) judgment. A district court held earlier this year that the exception applied to a new action to sanction Masterpiece Cakeshop for refusing to back a cake for a trans woman following the SCOTUS decision. It is even more obvious that a fetal-heartbeat law is invalid under Roe/Casey and that any judgment would be invalid.

Posted by Howard Wasserman on May 20, 2021 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, May 12, 2021

Anti-Vaxxers on Facebook and Nazis in Skokie

Yale law professor (and Tiger Dad) Jed Rubenfeld has signed on as counsel for Children's Health Defense, a non-profit anti-vaxx organization founded by Robert Kennedy, Jr., in a lawsuit alleging Facebook and Politifact violated the First Amendment in labeling certain content as false and in preventing people from donating to CHD through the site. CHD argues that Facebook acted under color because the CDC gave Facebook the standards and guidelines it used in its labeling, creating a close nexus through government coercion or encouragement of private constitutionally violative conduct. The more obnoxious coverage emphasizes that Rubenfeld undertook this representation during a two-year suspension at Yale, creating complementary memes of "disgraced law prof further disgraces himself" and "this is what happens when law professors try to practice law."

But I cannot see a meaningful difference between Rubenfeld pursuing free-speech claims for anti-vaxxers on Facebook and the ACLU pursuing free-speech claims for Nazis in Skokie. I (and most of the people using the case as a chance to zing Rubenfeld) agree with the legal arguments in the latter and disagree with the legal arguments in the former. But that cannot be the difference in evaluating the professional, ethical, or moral propriety of the decision to serve as counsel and to pursue this litigation.

Nor is the answer that the ACLU raised obviously and indisputably valid arguments about core free speech principles while "everything about [CHD's] case is dumb, and the fact that the disgraced and suspended Rubenfeld is using it to further his nutty legal theories is just the icing on the nonsense cake." Skokie was not the simple case in 1977 that it appears in 2021. Under the law at the time, fighting words had not been narrowed to face-to-face encounters, a state could punish group libel, and police could arrest outrageous speakers to prevent a hostile audience from engaging in violence. Newer case law (e.g., Brandenburg and Sullivan) called those cases into question, but the landscape was more open than it is today. Someone certainly labeled the ACLU's case on behalf of the Nazis "dumb." Similarly, arguments can be made that "Facebook is a private actor and so can control what gets said and how" is not the sole plausible conclusion. No precedent controls the situation in any direction. And while I believe best application of existing state-action doctrine leads to the conclusion that Facebook is not a state actor and I expect courts to agree, it is not so obvious.

This story implicates a broader controversy over how vigorous attorneys should be in pursuing civil litigation on behalf of plaintiffs. At what point can/should/must an attorney decline to take on a case or to make arguments in support of the client's position and how does the attorney identify that line? The general view is that a criminal defense lawyer is sui generis; the imperative to do whatever it takes is greater when defending an individual against the overweaning power of the carceral state, even when a "bad person" benefits. Even if not the same, however, Skokie has been celebrated as the principled lawyer using civil litigation to pursue general ideals for all, albeit for the immediate benefit of the ultimate bad or unappealing person. This was obviously and especially true of the First Amendment, but it was not so limited; RBG established principles of gender equality by vindicating the rights of men. Moreover, the analogy between civil and criminal works when both are about protecting rights against the power of the state. The state seeking to incarcerate is different in degree but not kind of the state prohibiting rights-holders from exercising their rights.

What has changed, such that Rubenfeld is the target of criticism and mockery? Or put differently, would we see the same criticism and mockery if Rubenfeld had joined the Skokie case. One possibility is that some might be be less accepting of the Skokie narrative, less accepting of lawyers using general principles used on behalf of bad people. Otherwise, are anti-vaxxers "worse" than Nazis? Some segment believes the ACLU was wrong to represent the Nazis in Skokie, so Rubenfeld is equally wrong to represent anti-vaxxers. A version of this positionarose during the post-election litigation, where firms and lawyers (including some large firms with reputations at stake) were criticized for pushing legally and factually absurd cases on behalf of plaintiffs wronged by state governments (and Dominion, of course), distinguishing those doing whatever is necessary on behalf of criminal defendants.

Posted by Howard Wasserman on May 12, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Monday, May 10, 2021

Twiqbal and accrual

The Eighth Circuit held last week that a claim for retaliation accrues at the time of the retaliatory actions and comments suggesting retaliatory motive. (H/T: Volokh Conspiracy's Short Circuit). The case arises from the 1989 kidnapping and murder of an 11-year-old in central Minnesota, a national-obsession case I had never heard of; I plowed through the In the Dark podcast on the case over two bike rides this weekend.

Daniel Rassier and his mother, Rita, owned the farm at the end of the driveway near which the abduction occurred; the killer turned around and parked in that driveway for a time on the night of the attack. Beginning around 2004, Daniel publicly criticized the new county sheriff, who had begun focusing on Daniel as a possible suspect. In 2009, the sheriff sent the victim's mother into a conversation with Daniel wearing a wire, hoping to catch him saying something incriminating; Daniel instead criticized the sheriff and the investigation. Upon hearing those critical comments on the wire, the sheriff obtained a search warrant for the Rassier home and publicly named Daniel a "person of interest" (a meaningless term that should be retired). During the search, the sheriff allegedly twice told Daniel, "this is what happens when you talk." The sheriff repeated these statements to the podcast reporter, suggesting there are ways a person should not speak about an investigation. Daniel obviously became a social pariah after these accusations, including losing his business giving private music lessons.

The killer, Danny Heinrich, was identified in 2016 and confessed, pleading guilty to one count of possession of child pornography (the podcast discusses the reasons for that). The sheriff never apologized or acknowledged the mistake in suspecting Daniel. This plays into the podcast's theme that the police screwed the case up (they identified the perpetrator within a few days, then failed to put together the necessary information) and that this county sheriff's office has a notorious track record for failing to solve major violent crimes.

Daniel and Rita sued in 2017, less than a year after Heinrich's confession but seven years after the search (the limitations period is six years). Daniel argued that the claim did not accrue until 2016, when two things happened: 1) Heinrich confessed, thus establishing Daniel's innocence of the crime; and 2) Daniel read an unsealed copy of the sheriff's warrant affidavit, which he said was the first time he had written proof of retaliatory motive. (The podcast reports on a the transcript of the warrant hearing, which shows law enforcement making stuff up). The court rejected the argument, holding that 1) there is no requirement of certain innocence before the claim can accrue and 2) the sheriff's oral statements gave Daniel notice and a basis to believe there was a retaliatory motive, starting the clock on the claim.

Had Daniel sued prior to 2016, he would have alleged the sheriff's statements, along with facts describing the search, his criticism of the investigation, the various investigative failures, and his innocence of the crime. The court states that those facts gave Daniel notice of a viable claim. The court implies that this would have been sufficient to state a claim and that he could have found the affidavit in discovery and used it to prove his case.

But would those facts, without the allegations based on the affidavit or the sheriff's later stattements, have survived a 12(b)(6) under Twiqbal? The court might have held that the sheriff's isolated statements are ambiguous or capable of alternative understandings, rendering retaliation a possible-but-not-plausible conclusion from the facts. Other allegations of retaliatory motive, without the evidence of the affidavit or other specific facts showing intent, might have been rejected as conclusory. So might the allegations that Daniel was innocent of the kidnapping/murder. Thinking of what Daniel could have known between 2010 and 2016, it is unlikely he had enough to survive dismissal.

This case places the problem in some relief. A claim is said to accrue when the injured person "can file suit and obtain relief." For a retaliation claim, that is the time of the retaliatory act combined with some basis to believe there was a retaliatory motive. But Twiqbal disconnects filing suit and obtaining relief. The information sufficient for the claim to accrue and to compel suit might not, when reduced to writing, be sufficient to survive a motion to dismiss. That seems problematic.

Posted by Howard Wasserman on May 10, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, April 28, 2021

Can kids be assholes? And other thoughts on Mahanoy arguments

Having listened and taken one pass through the argument in Mahanoy Area Sch. Dist. v. B.L., taking as a starting point that I am terrible at predictions from arguments.

• Can kids be assholes to one another? Everyone was worried that without Tinker, a school could not regulate bullying when it occurs outside of school. B.L.'s attorney tried to leave the school some power so long as it comports with non-Tinker First Amendment standards (bullying, defined similar to harassment, as a new category of unprotected speech). But Justice Sotomayor pointed out that a lot of problematic out-of-school behavior would be cruel but not bullying under any definition that would comport with the First Amendment. The presumption is that there cannot be a realm in which students might emotionally hurt each other with impunity other than from their parents, so the school must have the power to fill that vacuum. But impulse to kindness aside, must this be so and why? Maybe the answer is that emotional hurt, regardless of when or where it happens, is so traumatic for kids that someone has to do something. And the school should do it because, regardless of where it occurs, the bullying is part of school because school is life for kids.

• But that is what makes the school's and government's positions problematic. Giving the school the power to regulate anything that "targets" the school and a school topic is all-consuming, because school is life for kids. There is little a student says or does--or has said or done about her--that is not about school in some way and that will not find its way back to school and to her life as a student.

• Lots of questions about whether students in extra-curricular activities can be regulated more closely, even out of school, than ordinary students. The Third Circuit said no and the school did not appeal, so the issue was not before the Court. I do not see why it should matter, as suspension from an activity because of protected speech is as much an infringement as suspension from school, just as a $ 5 ticket for protected speech is as much an infringement as an arrest. (The difference in severity would go to the damages available in a subsequent § 1983 action, not to whether a violation occurred).  Everyone focused on sports (and cheer) at issue in this case, presuming they (supposedly) uniquely need unity, discipline, respect, cohesion, and camaraderie. And there is this idea of being a "school ambassador." Do student counsel, physics club, and band require those things? Does the band director or the play director warrant the same respect as the cheer coach? "Athlete exceptionalism" was the camel's nose for random drug-testing, which then expanded to all "competitive" extracurricular activities.

B.L.'s lawyer also argued that the school could set conditions on athlete (and other extracurricular participants'?) speech with clear policies in advance. But he did not specify whether the First Amendment imposes any limits on those policies--whether the school can compel students to agree to surrender all off-campus speech rights as a condition of participation. That would be unfortunate.

• Lisa Blatt, the school's counsel, worked hard to argue that Tinker does not create a heckler's veto and that religious and political speech cannot be proscribed under Tinker. Offense (by the school or by some subset of students) is not sufficient to create a disruption, absent a broader factual context such as student walkouts, an impending battle between the Jets and the Sharks, or an effort to use fighting words to "terrorize" a new Black student. This is important, because "disruption" could (and I think has in many cases) been based on listener anger.

• Off the free-speech topic: Justice Alito asked Blatt whether a student could be punished for misgendering a non-conforming student. She said the school could insist on "accommodations," such as requiring students to use the person's name but not a pronoun. I think we know where that is going.

Posted by Howard Wasserman on April 28, 2021 at 04:39 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, April 11, 2021

Universality in Tandon v. Newsom

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 06, 2021

Speech is not money (Update)

People are having fun ridiculing ridiculous Republicans. After years of insisting that the First Amendment guarantees corporations the right to spend money supporting (mostly Republican) candidates and causes have now decided that corporations and corporate executives must "stay out of politics" when their speech consists not of writing checks to GOP candidates but of boycotting certain locations and business partners or otherwise speaking as an entity on matters of public concern. In fairness, maybe Republicans such as Mitch McConnell never believed that corporations should be able to "speak," only that they should be able to spend money (by giving it to Republicans)--and speech is not money.

Of course, the left is not doing much better. Many are urging, supporting, and celebrating large institutions (Coca-Cola, Delta, MLB) wielding their economic power to protest, and try to influence, government decisions and public policy. But if this is legitimate and laudable behavior from these companies, most of the left criticisms of Citizens United and cases--"corporations are not people," "corporations don't have First Amendment rights"--evaporate. Believing that MLB can and should move the All-Star Game from Atlanta in response to voter-restriction laws depends on believing that MLB has the right, as an entity, to take a position on matters of public concern.

Neither side can have it both ways. Either corporations enjoy First Amendment rights to engage, through expenditure (or non-expenditure) of funds, in public debate or they do not. It does not vary by context. It does not vary by the political position they take. And it does not vary by the type of corporation. If Delta can (and should) take corporate action that furthers principles you like, then Delta may take corporate action that furthers principles you do not like.  If Coca Cola can spend money to support the election of candidates you support, then Coca Cola can spend money, time, effort on positions you do not support. You can make your expressive decisions accordingly.But your response cannot be that it does not have the right to do it or that it should "stay out of" the arena.

There is a liberal argument that would oppose expansive campaign spending  but support current corporate efforts in Georgia and elsewhere. But it is not the Citizens United bumper sticker that most liberals favor. It argues that big-money contributions and expenditures should not be allowed to influence public officials and elections, that elections are "bounded institutions" in which unique limitations should apply in ways they do not in the larger public debate. This is an argument about wealth and controlling its influence in the electoral system, not corporate status. That is, the problem is not corporate spending but all spending, by people and corporations alike. But that is not the argument that most liberals make about campaign finance.

Update: Wow. I was being sarcastic about Republicans being ok with corporations spending money but not speaking. But that appears to be Mitch McConnell's position: "Stay out of politics because it's not what you're designed for," but "I'm not talking about political contributions," only "taking a position on a highly incendiary issue." Don't speak, just spend money. Don't take express positions, just give money to me and people I like (presumably to gain influence). I can only assume that issues and candidates with which McConnell agrees are never "highly incendiary." This would be laughable if not so par for the course.

I do not expect intellectual honesty or consistency from McConnell. But I would like to hear a theory of why contributions are ok but express positions are not. To blanket contributions (and expenditures) in the First Amendment, there must be an expressive quality to those expenditures. And there is no logical way to say a corporation has First Amendment right and can speak, but that it must limit its expression to the form of campaign contributions but no other expression in other forms (especially because giving money so someone can spend it is less expressive than other forms of corporate communication involving true speech).

Further Update: An alternative title to this post (seen on Twitter and elsewhere) might be "Money is speech, but speech is not speech."

Posted by Howard Wasserman on April 6, 2021 at 11:32 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, March 30, 2021

Return of Kitty Genovese?

The video-recorded attack on an (unidentified) elderly Asian-American woman in New York is striking two themes: the increase in bias-motivated violence against Asian-Americans and the apathy of the men inside the building who watched the attack on the sidewalk, then closed the door when the attack was over and the woman was lying on the ground. The staff members have been suspended pending an investigation in cooperation with the SEIU; the union says that their current information is that the workers called for help and urged people not to rush to judgment. Meanwhile, video and stills of the attacker have been released and calls are out for information about the identity of the assailant.

The story brings to mind Kitty Genovese, whose 1964 murder wrapped into an inaccurate narrative of bystander apathy that remains 57 years later, even as recent accounts have shown that narrative to be false. That this new (apparent?) apathy was caught on video makes the narrative more powerful and potentially stickier. It is different in two respects. First, it does not allow a complete-apathy narrative, as witnesses say someone on the street (not captured on video) chased the assailant, who pulled a knife before escaping. Second, the apathy is bound up with the anti-Asian narrative. So this is not public apathy, but racist apathy directed at a vulnerable population.

Posted by Howard Wasserman on March 30, 2021 at 06:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

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

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

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

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

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

Thursday, March 11, 2021

Zombie revivals

Michael Dorf writes about a new Arkansas law that bans all abortions except to save the life of the woman in the case of a medical emergency. Dorf wonders why Arkansas (or any other state) does this rather than attempting to enforce an existing law. He argues it is partly political--current legislators and the current governor want the political trophy of such a law, as opposed to give the attorney general the glory of new enforcement. There also is the problem that Arkansas or another state may be under an injunction not to enforce the existing laws, so the new law is necessary to create a new enforcement opportunity. Alternatively, the AG would have to ask the district court to lift the injunction, which may be difficult when done in anticipation of SCOTUS overruling precedent.

Some good thoughts here that I want to incorporate into my Zombie Laws paper.

Posted by Howard Wasserman on March 11, 2021 at 04:11 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Twiqbal and voting

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

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

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

Tuesday, March 09, 2021

Cascading Fed Courts issues

I have not given enough thought to how one SCOTUS decision on one issue produces a cascade of other issues. Janus provides a nice case in point.

SCOTUS held that mandatory non-member agency fees violate the First Amendment. That triggered a wave of actions against unions by non-members to recoup fees paid prior to Janus, which courts of appeals have uniformly and all-but-unanimously rejected via a defense of good-faith immunity (the Fourth Circuit joined the chorus yesterday).

The Seventh Circuit on Monday considered a different downstream effect: A union sued the state attorney general challenging state law requiring unions to represent free-riders, claiming that mandatory representation violates the union's First Amendment rights against compelled expression and association. The court of appeals held that the union lacked standing.* No freeriding nonmember had grieved the union for failing to represent it. The attorney general (the defendant in the action) had not initiated or threatened an action against the union for unfair (or non-) representation. And the union had not alleged an intent to not represent freeriders to set-up a pre-enforcement challenge. So while the court acknowledged the issue was unavoidable post-Janus and would eventually require resolution, there was no live case or controversy teed up.

[*] While acknowledging that it also could have been unripe. But wouldn't it all be so much easier to say that nothing had (yet) caused a violation of the union's constitutional rights?

That leads to a further downstream effect: If a freerider files a grievance or the state brings a failure-to-represent action, would a federal court abstain under Younger from the union's action? It may depend on the state laws and procedures governing state labor proceedings. I think abstention would be required in the AG action, because the action sounds comparable to an attorney-grievance proceeding. The freerider grievance may be a bit more open after Sprint, since the state would not be a party.

This is far from played out, as the Seventh Circuit recognized. I wonder if the Janus majority anticipated this three years ago.

Posted by Howard Wasserman on March 9, 2021 at 10:57 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

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

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

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

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

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

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

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

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

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

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

Thursday, March 04, 2021

Twiqbal meets the Kraken and Gondor

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

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

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

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

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

Saturday, February 27, 2021

Universality and the CDC eviction moratorium (Updated)

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

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

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

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

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

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

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

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

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

Monday, February 08, 2021

Campus speech (Updated)

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

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

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

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

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

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

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

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

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

Wednesday, January 20, 2021

Senior Judges and Biden appointments

Donald Trump's in disputable success as President was in filling judicial vacancies (leaving to one side the political disputes over how he had those vacancies, how he filled them, and with whom). He appointed more than 300 judges, including more than 1/4 of the judges on the courts of appeals. And there are not many vacancies for President Biden.

But under the Rule of 80, active judges can take senior status when they are 65 or older and their age + years of service is 80. As the Judicial Nominations Blog reports, more than 80 Carter, Clinton, and Obama appointees are eligible to take senior status, creating a vacancy for Biden to fill.  Judge Victoria Roberts of the E.D. Mich. submitted a letter today announcing her intention to take senior status in February. She may the first of many, especially in the two years that Biden will have a Senate majority.

On that note, check out Marin Levy, The Promise of Senior Judges (Nw. U. L. Rev.), which considers the role of senior judges, including mechanisms for incentivizing judges to take senior status.

Posted by Howard Wasserman on January 20, 2021 at 04:36 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, January 18, 2021

Monosyllabic presidents

Pattern for the day: The disaster that is the Trump presidency results not from Trump being everything Hamilton feared might find his way into the presidency. Rather, it results from Trump having one syllable in his last name.

Of 45 (as of Wednesday) people to hold the presidency, nine have had monosyllabic last names. Here is where they appear in the presidential rankings from C-Span (2017) and Sienna (2018).

Polk (14/12)

Pierce (41/40)

Grant (22/24) (perhaps with a bullet--his presidency is being reconsidered)

Hayes (32/33) (could see a drop following the new conversation around the racist bargain that made him President in 1877)

Taft (24/22)

Ford (25/27)

H.W. Bush (20/21)

W. Bush (33/33)

Trump (NA/42) (and his spot on the next survey should be obvious)

So three single-syllable Presidents are in the top half of each survey and none makes the top quartile. Meanwhile, two are among the five worst. In addition, seven served one term or less, five of those losing reelection bids.

Posted by Howard Wasserman on January 18, 2021 at 11:02 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, January 11, 2021

Citizens United meets cancel culture

The premise of the campaign-finance/First Amendment connection is that spending money to support candidates (as expenditures and contributions) is a form of expression by the donors/spenders--expressing their support for the candidate, what the candidate stands for, and what he will do in office. Whether true, the premise could be tested in the coming months and years as companies request the return of donations or refuse to donate to candidates who voted in favor of the objections to electoral votes.

Shouts of "cancel culture" by the "leftist mob" are sure to follow. But if donating to candidates is First Amendment activity, then so must refraining from donating to candidates who act in ways of which you do not approve. To insist that corporations--whose constitutional right to donate you have demanded--must continue funding you regardless of your actions reveals that complaints about cancel culture really are complaints about counter-speech.

Mind you, I do not expect this newfound corporate conscience to last. But while it does, it is the logical flipside of the Court's entire body of campaign-finance jurisprudence.

Posted by Howard Wasserman on January 11, 2021 at 02:42 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, January 09, 2021

Which Republican party will emerge? Early returns not encouraging

In two posts, I discussed suggestions that the GOP was going to come apart into two or three groups. The question is which group will retain the party's power within government. Would the autocrats be cast out or abandoned, leaving a slightly smaller but rational center-right party committed to the system? Would the autocrats be left alone in the husk of a party (a la the pro-slavery Whigs) while the pro-democracy group formed a new entity? Or would the autocrats retain control aided by the pragmatic fence-sitters who want to retain power, leaving the tiny group of sort-of moderates (Murkowski) and those committed to the system (Romney) nowhere to go but to stay and shout at the rain.

Early returns are not encouraging. Trumpist Ronna McDaniel was reelected, unopposed, as RNC Chair. A super-majority of House Republicans voted to sustain challenges in Arizona and Pennsylvania and would have sustained challenges in Georgia, Michigan, and Nevada had any Senators gone along. Mitch McConnell will not bring the Senate back before January 19 and an evenly divided Senate may decide there is no jurisdiction over an ex-President. Lindsay Graham says it is time to "heal and start over" and not hold anyone accountable for a mob storming the Capitol (he was talking about impeaching Trump but I assume he would say the same about efforts to censure or expel Hawley, Cruz, et al).

Even after Republican playacting at overthrowing the government turned real, violent, and deadly, most members of the Republican congressional caucus and others "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know."

Update: Steve Scalise says the same thing about impeachment interfering with whatever will unite and bring our country together, while Jim Jordan speaks of "united and healing." Even Derrick Evans, the West Virginia legislator who was arrested for being part of the mob, wants  to help the healing process and bring the nation together. So everyone seems to have received the talking points memo. And the talking point is that unity, healing, and bringing the country together are more important than accountability and repercussion for past misdeeds--at least when Republicans engage in those misdeeds.

Posted by Howard Wasserman on January 9, 2021 at 11:40 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

On "cancel culture"

A great post on cancel culture from Sasha Volokh at the VC. He touches on the Hawley book contract, social media control (presciently written before Twitter banned the President and the accounts of everyone the President was using to try to get around the ban), private universities, and school-curriculum choices. I join his closing point:

"Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is doing the acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

Contrast this with the statement of the National Coalition Against Censorship's statement on the Hawley book, which concludes that the "best defense for democracy is a strong commitment to free expression." This rests on one of two competing premises--either that the only one engaging in "expression" here is Hawley's or that the expressive rights of the publisher must be in the direction of producing more speech.

NCAC also errs in relying on this idea: "Many of the books–and many of the authors–are highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said." Perhaps that is the correct principle in the standard-issue "author of YA fiction says controversial thing about topic du jour" case or in the "non-group members cannot write well about groups" case. This is not that. Simon & Schuster reacted to Hawley's actions as a United States Senator that contributed (in their view) to a mob storming the Capitol and attempting to interfere with the work of the government. That is a distance from JK Rowling taking an unpopular position on gender issues.

And a third example comes from various Republicans and conservatives on Twitter, defining "private company exercises control over the country's leader" as something that happens in China and complaining that the culling of right-wing extremists from the site has reduced their followers.

Posted by Howard Wasserman on January 9, 2021 at 10:48 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 08, 2021

July ('74): District of Columbia

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

We are not so fortunate at the moment.

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

Thursday, January 07, 2021

Noisy withdrawals (Updated)

Everywhere today. Some questions remain: Are these exits appropriate and appropriately done? And why now--other than consequences resulting from the conduct of others, was Trump's conduct before and after the putsch any different than what he has been doing and saying for 3 years and 50 weeks? And with 13 days left, how is this different than giving two weeks notice.

Facebook (and other social media sites followed).

The attorney in Philadelphia whom the court called out for saying there were "non-zero" Republican observes in the counting areas. I would like to hear from PR experts whether this was done in an appropriate manner. I have seen some lawyers suggesting that the noisiest of withdrawals should not include specific accusations that may breach confidentiality.

Chad Wolf as nominee for Secretary of Homeland Security. This is tangled up in competing stories about the timing of the re-nomination and withdrawal.

Bill Barr, who already withdrew but is not being noisier about it. This one rings hollow, given his fawning statement as he stepped out the door.

Several national-security officials have resigned in the past 24 hours and reports are more may be coming in the next few hours or days.

Updates:

Transportation Secretary Elaine Chao (aka Mr. Elaine Chao, the Senate-Majority-Leader-for-the-moment), effective Monday. There is some question whether acting cabinet members can participate in the 25th Amendment process, so similar resignations could make that path trickier than it otherwise might be.

Forgot Mick Mulvaney, who resigned  as special envoy to Northern Ireland, saying "I can’t do it. I can’t stay." Mulvaney will (or should) forever be tagged for his November 7 Wall Street Journal article (paywalled) guaranteeing Trump will concede gracefully if he loses.

Posted by Howard Wasserman on January 7, 2021 at 01:18 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Three (maybe four) parties?

John McLaughlin (Johns Hopkins) says it "Feels like we might be heading for a 3 party system, formally or in practice. Hard to understand how Rs like Toomey, Sasse, Romney, etc. share future goals with Cruz, Hawley, Johnson, House Rs who are about to challenge basic democratic norms. These are not mere policy disputes."

But returning to my response to Steve Schmidt's similar suggestion, I think we have to tweak McLaughling's argument to make it four parties: 1) Cruz, Hawley, et al; 2) Romney, Sasse, Toomey; and 3) the vast remainder of the GOP who voted against the challenges but might have acted differently if the possible result would have been different.

However framed, I do not see this rift as permanent. McLaughlin is right that there "are not mere policy disputes." But that is because these groups do not disagree on most policy matters. And those policies are the "future goals" they share. Toomey, Sasse, and Romney were appropriately and explicitly angry with the actions of Cruz and Hawley and the +/- 125 House Republicans in futilely challenging electors for show and political points based on false claims of wrongdoing. But they can and will continue to make common cause because they agree on most policy questions. And that is before we get to the many members who will make common cause around the simple idea of obstructing Biden.

I might view it differently if there appeared  to be a move among party leaders (most of whom are more in group 3 than 2) to sanction Hawley or anyone else for undertaking these efforts, especially after the siege laid bare the problem of pushing false narratives on the public. I have seen no indication that this will affect Hawley's relative position within the Republican Senate caucus (which may be less important to him than visiting Iowa and New Hampshire).

The answer may depend on whether a combination of photos, speeches, and votes from today has electoral consequences for the highest-profile Republicans. Does that photograph end Josh Hawley's political career, as David French hopes? Will political ads juxtaposing member speeches about fictitious made-up votes with images of rioters hurt them with voters, who seem them as simpatico on policy but unworthy of support because of their lack of commitment to democracy? If so, that might cull what Schmidt called the autocratic faction.

But that depends on how this multi-party split plays among Republican voters. I quoted Mike Sacks (prior to Wednesday) that GOP Congressmen "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." In other words, how many GOP voters are in the autocratic faction, how many in the pro-democracy, and how many in the pragmatic.

I have long feared the answer. Yesterday shows I am right to be afraid.

Posted by Howard Wasserman on January 7, 2021 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, January 05, 2021

Partisan messaging

Keith Whittington at Lawfare breaks down the legal, constitutional, social, and political problems with what congressional Republicans plan to do tomorrow.

He responds to the argument that this is harmless political posturing, a "messaging" act that causes no harm because it cannot succeed (akin to voting for a bill that will not pass or that is likely to be declared invalid). But:

[E]ven as a political messaging exercise, what exactly is the message? Are these congressional Republicans telling voters that if they elect enough like-minded politicians, then a majority coalition would be willing and able to overturn the result of a presidential election? Is the message that every future presidential election is up for grabs when Congress meets to “count” the votes and that election results are simply contingent on who holds the majority in Congress? This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way.

Whittington is right that this is the message Republicans are sending to voters. And that tracks with questions over the divide within the Republican party and which direction that divide might go. Perhaps the message is that voters must primary the pragmatic faction and elect more autocrats, at the federal and state levels, so this will work in the future. Perhaps the message is to GOP autocrats at the state level to alter their election laws and processes to allow this to work in the future, up to and including returning selection of electors to the legislatures (the past two months show that many Republican voters would not oppose this in their Red or gerrymandered states).  Or perhaps the message is to the pragmatic wing of the GOP in Congress--hang with us, even if opposing us now, because eventually there will be an election that comes down to one state and a few hundred votes (e.g., Florida in 2000) and this will work.

Regardless of the message, Whittington's ultimate point stands: "This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way."

Posted by Howard Wasserman on January 5, 2021 at 06:17 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, January 04, 2021

Court smacks down dumbest election lawsuit and its lawyers

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

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

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

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

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

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

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

Sunday, January 03, 2021

Political parties and notes on a broken process

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, January 02, 2021

Mike Pompeo? (Updated)

Criticizing Lin Wood's legal acumen is fish-in-a-barrel stuff these days. Still I was struck by this: In his prediction/call/hope that Vice President Pence would be arrested and executed for treason, Wood said that Secretary of State Mike Pompeo would take charge of the Senate on January 6 and would save the election.

Obviously this is nonsense, and I do not know whether Wood believes it. But I am curious how he got there--even if you know nothing about law or the Constitution, what is the logical progression that gets the Secretary of State--an executive-branch officer whose existence is not provided for in the Constitution--presiding over a joint session of Congress and performing a function that is constitutionally delegated to the VP? The only thing I could think of is that Wood went through the line of presidential succession to find the next executive-branch officer and decided that person must perform the VP's functions if the VP is sitting in prison awaiting execution. This is wrong for several reasons, but I think that is it.

By the way, I am with the many people believing that this insanity does not end on January 6. Someone will seek to enjoin Chief Justice Roberts from issuing the oath to Biden or will seek to mandamus Roberts to issue the oath to Trump. Someone will challenge a Biden-signed law or Biden-issued executive order and argue that Biden is not really the President. Someone pointed out that the birther lawsuits continued into December 2012. And I would not be surprised if some Republican House members made noise about impeachment, which would be the appropriate vehicle (as opposed to these nonsense lawsuits) for removing a President who won the office by deceit or wrongdoing.

I also continue to believe that none of these will hurt the Republican Party or any individual Republican officials, in the short or long term.

Updated: Apparently, there is a different version of Pompeo, the Hero, in which Pompeo becomes acting president. According to the December 16 LawFare podcast, Senate Republicans will delay count-and-challenge until January 20 (Cruz's demand for a 10-day study, followed by referral to state legislatures, would achieve), then obtain a ruling from OLC that § 19 is constitutionally invalid to the extent it allows a non-executive officer to become acting president. The OLC ruling would require the executive branch to accept Pompeo as acting president, while the rest of the government would presumably recognize Nancy Pelosi as acting president.

Posted by Howard Wasserman on January 2, 2021 at 10:12 AM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Thursday, December 24, 2020

Third-party universality

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

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

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

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

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

Tuesday, December 22, 2020

Remembering James Watt

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

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

Saturday, December 19, 2020

Plenty of perjury and authoritarianism

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

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

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

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

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

Friday, December 18, 2020

Malevolence + Incompetence = No Standing

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

Breyer dissented for Sotomayor and Kagan. Money quotation:

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

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

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

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

Thursday, December 17, 2020

Departmentalism and the First Amendment

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

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

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

Cuomo explained his reason for signing despite the constitutional questions:

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

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

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

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

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

Wednesday, December 16, 2020

Fake electors

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

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

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

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

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

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

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

Universality and the facial/as-applied distinction

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, December 13, 2020

Not a technicality, still a distraction (Updated)

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

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

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

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

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

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

Friday, December 11, 2020

Requiem for principles

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

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

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

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

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

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

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

Thursday, December 03, 2020

How many cheers for the GOP? (Updated)

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

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

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

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

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

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

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

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

Tuesday, December 01, 2020

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

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

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

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

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

Defending Trump's lawyers on hearsay (Updated Twice)

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

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

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

As I like to map these problems for class:

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

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

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

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

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

Please tell me why I am wrong.

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

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

    Connaran--GOP--UPW #1---UPW #2.

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

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

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

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

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

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

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

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

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

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

Sunday, November 29, 2020

The 20-day coup (and counting)

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

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

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

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

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

Posted by Howard Wasserman on November 29, 2020 at 03:12 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, November 28, 2020

Evidentiary problems (Updated Again)

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

The difference is evidence.

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

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

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

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

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

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

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