PrawfsBlawg

Asylum injunction stayed, everyone confused

Sam Bray and I agree on the impropriety of universal injunctions--I am the NAIA version of Sam as opponent of universality. But I disagree with Sam's suggestion that Thursday's SCOTUS order staying the asylum regulations portends the end of universal/nationwide/whatever injunctions. This case is too confused and too much of a procedural and analytical mess to be that vehicle or even the canary in the coal mine.

First, the unstayed injunction that reached SCOTUS had been narrowed in the court of appeals to be circuit-wide rather than nationwide. So nationwideness should not have been an issue in this case. The court was staying a narrow injunction against a federal regulation.

Second, both lower courts had entirely conflated the issues and analysis, I believe because they continue to use the wrong nomenclature. The result was a mess. The modified-but-unstayed injunction that reached SCOTUS protected the named plaintiffs (immigration-rights advocacy organizations) within the Ninth Circuit, making it over- and under-broad. It was overbroad  because it purported to continue to protect non-plaintiffs; it was under-broad in focusing on geography, thus failing to provide sufficient protection to these plaintiffs by not barring enforcement against them everywhere they might operate and be affected by the challenged regs. In fact, Tuesday's order from the trial court reimposing the "nationwide" injunction (by supplementing the record that the Ninth Circuit found failed to support nationwideness) applied the appropriate analysis: It focused on the extra-circuit activities of the four named plaintiffs, that they operated and were injured outside the Ninth Circuit, and thus needed protection in other states; no mention made of protection for non-parties, which is the real problem. And the Ninth Circuit one day later limited that new injunction to the Ninth Circuit--inappropriately, as there were findings that the organizations work outside the Ninth Circuit and thus needed the protections of the injunction outside the circuit.*

[*] The result of this circuit-only approach is that one plaintiff who operates in multiple states must bring multiple actions to obtain complete relief. What should happen is that one plaintiff should have to obtain one injunction for itself, protecting everywhere. The further litigation should be by other plaintiffs, obligated to obtain their own judgment and remedy.

Instead, this seems an example of what Steve wrote about in his forthcoming Harvard piece (which Sotomayor cites in her dissental): The government increasingly seeking, and gaining, extraordinary relief from the Court in constitutional-injunction cases, rather than allowing litigation to proceed in the lower courts. It reflects the Court's general opposition to injunctions against federal regulations (a concern that seems to have begun on January 20, 2017 and likely will end on January 20, 2021). Scope had nothing to do with it.

Process aside, I am not sure the result--stay of the injunction--is not appropriate. I like to apply the chaos theory to the stay question--would allowing the injunction to take effect create irrevocable chaos if the lower court is reversed. On that theory, for example, stays of injunctions were appropriate in the marriage cases, lest the state have to either rescind marriages or have some same-sex couples married by the fortuity of the time that litigation takes. On the other hand, the stay of the injunction was inappropriate in The Wall case, since the harm is irreparable if government funds are unlawfully spent and an environmentally harmful wall is even partially built. As for this case, while the asylum-regs are enjoined, the government must allow this class of people to seek asylum. But there will be chaos in handling this group of people if the injunction is reversed on appeal because the regs are found to be lawful, yet some asylum-seekers are present when they should not have been and would not have been but for the erroneous injunction. I have to think more about that.

Under color?

An interesting under color question. The officers were in disguise (and thus out of uniform) and presumably off-duty. But their personal vendetta arose from their professional conduct as police officers about which the citizen-victim had complained. Could they have done this but-for their official position? Being police officers did not enable the conduct. But being police officers is the only reason they had to vandalize this guy's property.

Declaratory judgments and injunctions

The Fifth Circuit held that due process was violated by a system in which some portion of cash bail was used to fund court expenses and the magistrate deciding bail sits on the committee deciding how money should be spent. The remedies portion states as follows:

After recognizing this due process violation, the district court issued the following declaration: "Judge Cantrell's institutional incentives create a substantial and unconstitutional conflict of interest when he determines [the class's] ability to pay bail and sets the amount of [*8] that bail."

That declaratory relief was all plaintiffs sought. They believed that section 1983 prevents them from seeking injunctive relief as an initial remedy in this action brought against a state court judge. See 42 U.S.C. § 1983 ("[I]n any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .").7

That statutory requirement reflects that declaratory relief is "a less harsh and abrasive remedy than the injunction." Steffel v. Thompson, 415 U.S. 452 , 463 (1974) (quotation omitted); see also Robinson v. Hunt Cty., 921 F.3d 440 , 450 (5th Cir. 2019); Restatement (Second) of Judgments § 33 cmt. c ("A declaratory action is intended to provide a remedy that is simpler and less harsh than coercive relief . . . ."). Principal among its advantages is giving state and local officials, like Judge Cantrell, the first crack at reforming their practices to conform to the Constitution. Steffel, 415 U.S. at 470 .

One response to the declaratory judgment would be eliminating Judge Cantrell's dual role, a role that is not mandated by Louisiana law. In contrast, because Louisiana law does require that the bond fees be sent to the Judicial Expense Fund, LA. R.S. 13:1381.5(B)(2)(a) , the declaratory judgment cannot undo that mandate. Challengers did not seek to enjoin that statute, instead arguing only that the dual role violated due process. But given today's ruling and last week's in Cain, it may well turn out that the only way to eliminate the unconstitutional temptation is to sever the direct link between the money the criminal court generates and the Judicial Expense Fund that supports its operations.

I am unsure about the final paragraph. The challengers cannot "enjoin that statute" because courts do not enjoin statutes; they enjoin enforcement of statutes. The district court could have declared that the state-law mandate created the unconstitutional conflict of interest; to comply with that judgment, the defendants would have had to stop enforcing that statute, much as if they had been enjoined from enforcing.  The court issued a seemingly narrower declaratory judgment. Perhaps the point of the final sentence is that eliminating the defendant magistrate's dual role would not eliminate the constitutional violation, opening the door to an injunction because the defendants violated the declaratory judgment.

Two other cute procedural pieces in the case: It was certified as a class action, thus avoiding mootness when the named plaintiffs' criminal cases ended. The court also noted that it is not clear that the exceptions provision of § 1983 applies here, because it is not certain that the defendant judge was acting in a judicial rather than administrative capacity.

Qualified immunity and judicial departmentalism

The Sixth Circuit on Friday held that Kim Davis was not entitled to qualified immunity from a claim for damages by same-sex couples denied marriage licenses in the early weeks after Obergefell. Obergefell clearly established the constitutional right the plaintiffs sought to vindicate--to receive marriage licenses and a reasonable official should have known about that right. And Davis did not show her entitlement to a religious accommodation, as the court said:

Davis provides no legal support for her contention that Kentucky’s Religious Freedoms Restoration Act required her to do what she did. Her reading of the Act is a subjective one and, as far as we can tell, one no court has endorsed. In the presence of Obergefell’s clear mandate that “same-sex couples may exercise the fundamental right to marry,” and in the absence of any legal authority to support her novel interpretation of Kentucky law, Davis should have known that Obergefell required her to issue marriage licenses to same-sex couples—even if she sought and eventually received an accommodation, whether by legislative amendment changing the marriage-license form or by judicial decree adopting her view of the interplay between the Constitution and Kentucky law.

Under judicial departmentalism, an executive official, such as Davis, is free to adopt and implement her "subjective" reading of the statute and judicial precedent. She does not need "legal authority to support her novel interpretation of Kentucky law"--the legal authority is her power as an executive official to act on her understanding of the law she is empowered to enforce. But qualified immunity is focused on precedent and the judicial understanding of precedent. So it could check executive officials going too far in a departmentalist direction, by tying them to judicial precedent on pain of damages.

More on SLAPP laws in federal court

The Fifth Circuit on Friday held that Texas's SLAPP law does not apply in federal court on diversity, following the (correct) analysis from the D.C., 10th, and 11th Circuits that the state law conflicts with FRCP 12 and 56 by adding an additional hurdle to trial. This decision complicates the circuit split because the 5th Circuit had held in 2009 that Louisiana's SLAPP law applies in federal court. The panel held it was not bound by circuit precedent. It was pre-Shady Grove, which the panel says sharpened the proper analysis. And the Texas law is different than the Louisiana law; the latter uses standards that look like summary judgment, while Texas imposes higher standards that more "manifest[ly]" conflict with the Federal Rules.

I doubt this will be the case on which SCOTUS will resolve the question, at least not immediately. The first move will be en banc reconsideration on the Fifth Circuit to resolve its internal split.

My conclusion on the overall Erie question is that the "special motion" provisions should not apply in federal court but fee-shifting provisions should. The question is whether that sufficiently protects free-speech interests, by allowing litigation to last a bit longer (until the protections of NYT can do their work in an appropriate case), but allowing the defendant to recover attorney's fees, which recoups the defendant's major financial burden.

Rosencrantz and Guildenstern vote Democratic (Further Updated)

• Isn't the President's problem that Denmark is finally governed by someone who can make up their mind (about Greenland not being for sale, if not about whether to kill Claudius). I am surprised (and somewhat disappointed) by the absence of Hamlet jokes in all of this.

• I have a different take on the President's "any Jewish person who votes Democratic shows great disloyalty." I don't think he was trafficking in the dual-loyalty stereotypes that Rep. Omar was accused of. Nor do I think he was accusing American Jews of disloyalty to the United States (at least more than he would say that anyone who votes Democratic is disloyal), although the latter risks giving crazies another reason to target Jews.

I think he was calling us "Bad Jews." But this shows his ignorance more than anything else. As Julian Zelizer put it, "Judaism has revolved around debate, disagreement and deliberation;" there is no official source defining who is a good or bad Jew based on their views and ideas. And certainly not an orange-tinted shaygets.

Update: The President reiterated his point today, saying "If you vote for a Democrat, you’re being disloyal to the Jewish people and you’re being very disloyal to Israel.” So he is saying "disloyal," because it is the only word he knows. But he is really saying we are bad Jews.

Further Update: Tying together this post and the news of the day: Denmark saved 90 % of its Jews during the Shoah.

Further, Further Update: Jordan Weissmann at Slate echoes my point that this is about labeling bad Jews. It would be an odd twist on the dual-loyalty trope to stay the problem is that Jews are insufficiently loyal to a foreign country. The problem is more tied to Jewishness:

[T]hey are implying that they are disloyal to their own ethnic interests, American interests, and even the almighty’s. It’s the 2019 version of calling liberal Jews a bunch of heretics. And we all know what happens to heretics in the end.

N.C. Court blows the mulligan

I was right that the withdrawal of the original opinion in the "flip-off-the-cop" case could have been for the majority to find a new basis to justify the traffic stop without having to accept that flipping the officer off was constitutionally protected. Which it did, although now with a dissent.

The court does recognize case law (it somehow missed the first time around) that the finger is protected and less likely to constitute fighting words when directed at an officer. But the  majority offers a new theory: The officer could not tell who the defendant was flipping-off: the officer (which would be constitutionally protected speech) or another driver (which somehow would not be; if the latter, the officer could have believed that the situation between the defendant and the other driver was "escalating" and, if left unchecked, might have become disorderly conduct. Importantly, the officer needed only reasonable suspicion, not probable cause, to make the initial stop and determine if the defendant was trying to provoke another motorist.

The dissent calls out the majority for, essentially, making up facts. The officer testified that he saw the driver wave at him, then turn the wave into the middle finger directed at him; there was no testimony about the situation escalating or about concern for a gesture at another car. The dissent insists that flipping a middle finger is protected by the First Amendment and thus cannot provide reasonable suspicion. Although he does not say it, that should be true regardless of at whom the gesture was directed.

The street is never the place to argue the appropriateness of an arrest. That is what our courts are for.”

This, from the NYPD Commissioner, is scary. And it is wrong. Given modern Fourth Amendment doctrine, limits (to say nothing of arguments to eliminate) the exclusionary rule, and the expansion of qualified immunity, the courts rarely conclude that an arrest was inappropriate. And even when they find the arrest inappropriate, they more rarely provide a remedy beyond the dropping of charges, which provides nothing for the collateral consequences of the improper arrest.

What the Commish really should have said is "Don't argue the appropriateness of an arrest. Just give in to police power."

Nomenclature and the real issue on the scope of injunctions

A Ninth Circuit panel refused to stay a preliminary injunction prohibiting enforcement of new asylum regulations. But a divided court narrowed the injunction from its "nationwide" scope to the extent it applies "beyond the Ninth Circuit," because the district court had not found that beyond-the-circuit scope was necessary to remedy the plaintiffs' harm. The decision, while proper, illustrates the importance of the problems of nomenclature and the misunderstanding of what is at stake.

The plaintiffs in the action were four California-based organizations that represent asylum-seekers; the district court found they had organizational standing because they would lose clients and funding and be forced to divert resources as a result of the regulation.*

[*] The district court also found the organizations within the statutory zone of interest, although that no longer should be part of the standing analysis.

The focus of the scope-of-injunction analysis thus should have been the four organizations, not California. The injunction should have been limited to prohibiting enforcement as to these organizations. But it should have protected those organizations everywhere in the country--states within the Ninth Circuit as well as any other states in which they may represent (or seek to represent) asylum-seekers. Perhaps that means the injunction would reach California and Arizona only, if these organizations only represent clients in those states; outside-the-states application is not necessary to remedy their harm if they do not work outside those states. But to the extent they work outside California and Arizona, their harm is remedied only if the injunction protects them outside of Ninth Circuit states.

And that is why the term "nationwide" does not work. All injunctions should be nationwide in the sense of protecting the plaintiffs wherever in the nation they are--that is the only way to remedy their harm. The problem in this case (and others) is that the district court's injunction purported to prohibit the government from enforcing the regulation beyond these four organizations. The problem is that the injunction was not "particularized" to the parties to the case, but attempted to apply to the "universe" of people and organizations affected by the regulation.

The court thus should have "grant[ed] the motion for stay pending appeal insofar as the injunction applies" beyond the four plaintiff organizations in this action.

Punishing female attorneys

The Supreme Court of Missouri suspended the licenses of two female former assistant prosecutors in St. Louis who helped cover up a police officer beating of a suspect in 2014. A third female prosecutor, who was more directly involved by filing false charges against the victim, was disbarred in 2016. The officer pleaded guilty to a § 242 violation and was sentenced to 52 months.This represents the exceedingly rare case in which police and prosecutors faced sanctions for their roles in misconduct within the criminal-justice system.

But it is difficult not to notice that this rare case involved three female prosecutors. It thus echoes the fallout from the Central Park Five, in which the only people facing professional consequences (informal, but still) were two female assistant prosecutors, but no man involved in the case.

Second Circuit revives Palin defamation suit

Decision here. I wrote about the case here.

The court of appeals correctly criticized the district court's weird use of an evidentiary procedure (testimony from the primary author of the challenged editorial) to evaluate the complaint. When a court considers information outside a complaint, it either must exclude the information and continue as a 12(b)(6) or convert to summary judgment; it cannot use the information and continue to treat the motion as a 12(b)(6). The Times argued that the testimony was background information that was "integral to" the material in the complaint; but that could not be right, because the information was obtained after the complaint was filed, as opposed to information the plaintiff could have relied on in drafting the complaint.

The problem with the decision was in holding that Palin's Amended Complaint (drafted with the assistance of that testimony) was plausible. This is bad for First Amendment purposes but procedurally interesting in two respects.

The court found that the district court had credited the editorial writer above the allegations in the complaint, which was improper. The district court had stated that the author's conduct was "much more plausibly consistent" with a mistake than with actual malice. But it "is not the district court’s province to dismiss a plausible complaint because it is not as plausible as the defendant’s theory. The test is whether the complaint is plausible, not whether it is less plausible than an alternative explanation." Twombly and Iqbal contain language that a complaint is implausible where there is a reasonable alternative explanation for the conduct (in Iqbal, the alternative was "protecting the nation after 9/11" rather than "invidious discrimination"). Lower courts have generally ignored that language; here, the Second Circuit flatly rejects that analysis, at least in this type of defamation action.

The court closed the opinion as follows:

We conclude by recognizing that First Amendment protections are essential to provide “breathing space” for freedom of expression. But, at this stage, our concern is with how district courts evaluate pleadings. Nothing in this opinion should therefore be construed to cast doubt on the First Amendment’s crucial constitutional protections. Indeed, this protection is precisely why Palin’s evidentiary burden at trial—to show by clear and convincing evidence that Bennet acted with actual malice—is high. At the pleading stage, however, Palin’s only obstacle is the plausibility standard of Twombly and Iqbal. She has cleared that hurdle.

But this raises an important point. The clear-and-convincing evidence standard has been incorporated into summary judgment, because whether a reasonable jury could find for the plaintiff must account for the standard. Should the same be true for 12(b)(6)--must it be plausible by clear-and-convincing evidence? This would twist pleading from its purposes, but Twombly and Iqbal did that in trying to make it a weed-out point. The question is whether we follow that to its logical conclusion.

The standard of proof may define how much of a problem this case will be for The Times and the First Amendment. The bulk of the analysis defines this as a case of competing factual inferences--Palin's facts show actual malice, the author says it was a mistake; if so, then this case cannot go away on summary judgment, because the court is equally prohibited from deciding witness credibility as would be required in this case--only a jury could resolve those questions.* That last paragraph of the opinion, emphasizing the standard of proof that will apply at trial and summary judgment, may have been a signal to the lower court about what should happen next.

[*] The court declined to treat the district court decision as one for summary judgment because, even as a summary judgment decision, the court impermissibly made credibility determinations.

Good guys with guns

I think Sunday's events should end the idea that the answer to bad guys with guns is good guys with guns.

Texas is an open-carry state and Wal Mart stores are happily open-carry. So there is a good chance that someone in the store was or could have been armed. No one shot back. The two "heroes" were the veteran in Wal Mart who reacted to the shooting by pulling children to safety and the guy in Dayton who wrestled the gun from the shooter. No one tried to get into a firefight with the guy. Which is smart, because the chances are that the policy would misidentify the good guy as the bad guy and shoot him (especially if he possessed certain traits).

Everyone is praising the police in Dayton for taking out the shooter in less than a minute. But in that minute, the shooter killed 9 and injured 27. The GGWG argument always has rested on the idea that some early victims will be sacrificed; we not know the BGWG until he starts shooting, so there will be a few victims until the situation reveals itself and the GGWG can spring into action. The GGWG prevents a small tragedy from becoming a big tragedy.  But in Dayton the GGWGs (the police) quickly sprung into action--and the casualties already were enormous. So the only way to prevent mass casualties is for the GGWG to act before the shooting starts, with police being hare-triggered in their suspicions about who might be a BBWG. And we know at this point that the people the police identify do not look like the people who did the shooting this weekend.

The early Republican talking point is that violent video games are causing these mass shootings, so they should be regulated (along with more compulsory school prayer and flag salutes). This is so stupid and vacuous that it should be embarrassing. And the reason I stopped watching mainstream media outlets is that they fail to challenge the stupidity and they keep inviting the same people to repeat the same vacuous talking points.

Judicial immunity can be shocking (sorry)

In the judicial immunity section of my civil rights book, I use a puzzle that I blogged about years ago: A judge in Mississippi cited for contempt and jailed an attorney for refusing to recite the pledge of allegiance prior to court proceedings. I spun that off into several hypos (inspired by a comment from Jack Preis), including the judge ordering the bailiff to tase the lawyer and the judge tasing the lawyer himself. The question is where judicial immunity runs out.*

[*] The attorney did not sue the judge, so this never became a real issue. The judge was disciplined--one of many, many disciplinary actions against him.

This story discusses the use of stun belts to control unruly defendants in court. The problem, besides the extreme pain these devices inflict, is that some judges use (or threaten to use) them not to control security threats, but to get defendants to pay attention to the judge or to stand while addressing the court. States vary as to who controls the device--the courtroom deputy acting on the judge's order or the judge herself.

So here is my hypothetical, brought to life. The arguable immunity turns on  the nature of the judge's action: Ordering the bailiff to tase the attorney would be immune, tasing the attorney himself would not be (nor would Jack's example of the judge shooting the attorney for refusing to comply. Giving orders to maintain courtroom control is a judicial function, with bailiffs and deputies executing those orders; tasing someone to maintain order is not a judicial function because not something done by a judge as judge. But at least some jurisdictions give the judge (not the bailiff) control over this device, making its use--not merely ordering its use--something that the judge is doing in her role as a judge while on the bench.

The story linked above discusses the problems in the use of these devices and how they affect criminal trials, as well as efforts to enjoin their use. No one has yet sued a judge for damages for employing the device, which is where judicial immunity would kick in. Stay tuned.

Sherry on the "Kardashian Court"

Suzanna Sherry has a new piece on SSRN, Our Kardashian Court (and How to Fix It). Sherry argues that partisanship can be reduced on SCOTUS by a law prohibiting concurring and dissenting opinions and having the Court issue one per curiam opinion, with no indication of how many Justices joined that opinion. The goal is to eliminate the opportunity for Justices to become celebrities or to push personal agendas.

This is a fascinating idea. I had the privilege of reading and commenting on an earlier draft. Some of my comments are after the jump:

• Sherry brackets whether this should extend to courts of appeals. But note that the concerns for both celebrity (Posner, Kozinski, many of the Fed Soc people that Trump has appointed) and partisanship (especially with the attention given to many of Trump’s appointees) are present on these courts. Dissents on the courts of appeals may help SCOTUS identify which cases to take, which is a positive. Otherwise, they raise the same problems Sherry identifies--celebrity and pushing individual agendas--while adding new ones, such as auditioning for SCOTUS.

• On this point: At SEALS, Donald Campbell (Mississippi College) presented a paper trying to measure how dissents and separate opinions reflect or undermine collegiality on courts of appeals, where there often is a a "norm" that judges write separately only in extraordinary cases. If collegiality is affected by dissents, then Sherry's proposal would be a welcome change for those courts, ensuring and re-enforcing that norm and that collegiality.

• Sherry would impose this by statute, so she spends time considering the separation of powers objections to such a law, concluding the law would be valid. This would be another opportunity to test concepts of judicial independence and what it means for Congress to tell the Court how to decide a case.

• The key weakness to the proposal might be that it is too late. The partisan divide is too sharp and the identities and positions of the individual Justices too well-known. Everyone would know who did and did not join a per curiam opinion overruling Roe/Casey. Had this proposal come in 1973--when Stewart, White, and Powell were the median justices and appointing party did not align with judicial ideology--it might have helped prevent us from getting to where we are now.

As Larry Solum says, download it while it's hot.

Random snippets of law

Each too short for a stand-alone post. Maybe this is why we have Twitter.

• Here is everyone's Evidence question for the coming semester: The government in the Roger Stone prosecution has moved in limine to admit the clip from Godfather Part II in which Frank Pantangeli recants his prior statement implicating Michael Corleone. The government argues this is relevant to explaining Stone's repeated references in his communications with Jerome Corsi and shows that Stone was urging Corsi to lie to Congress.

• This point is moot with the announcement by the House Judiciary Committee that it is investigating "possible impeachment." But following Robert Mueller's testimony on Wednesday, Adam Schiff and Nancy Pelosi stated that their preferred next step was to complete litigation over various subpoenas; if the President disobeyed an Article-III-final court order, that would be the last straw prompting a move to formal impeachment.

I did not understand why that is or should be the relevant line. Some have flagged this as the line that Nixon would not cross, so crossing it would make Trump worse than Nixon. But it is hardly the worst or most wrongful thing a President could do. And it is not obviously worse or more impeachable than the misconduct--some criminal, some representing abuses of office or prospective office--described in Mueller's report and testimony.

I would guess that Pelosi and Schiff believed that Mueller had not described, in sufficiently dramatic terms, a single flashing-red-light act that would rally the public. Or they bought the media spin that Mueller's testimony was too dull to do that. So the strategy became to wait for the next single flashing-red-light act. Or the one after that. Or . . .

Remembering Justice Stevens

Justice John Paul Stevens died Tuesday, at age 99. He is a big deal around Northwestern Law, where I went to school. The award for top GPA is named for him and his official Court portrait was on display in the library until his retirement. And in Chicago, where he was at Wrigley Field for Babe Ruth's "called shot" in 1932 and got to see the Cubs finally win the World Series in 2016.

On an instant reaction, how will Stevens be remembered as a Justice? He is the third-longest serving Justice, just shy of 35 years, trailing Douglas and Field. The easy political story is that he was a Republican appointee who became a leading liberal light on the Court, following in the shoes of Brennan and Blackmun, but on a more sharply divided Court. For purposes of one of my current projects, he spent 16 Terms as senior-most Associate Justice in frequent disagreement with the Chief, one of the longer such periods in the Court's history; this gave him the assignment power in divided cases in which a swing Justice (usually O'Connor and/or Kennedy) switched.

I wonder what opinions will define his legacy on the Court. We do not associate him with particular doctrines (as with Scalia) or particular opinions (as with Blackmun and Roe). He stuck us with Pacifica. He famously dissented in the flag-burning cases, "flipping" positions with Scalia, and in Citizens United, where the majority opinion outraged him. He wrote Reno v. ACLU, which, while not rhetorically memorable, was a more significant decision in allowing the internet to thrive as an open medium. He wrote Claiborne Hardware, which may gain new relevance in challenges to anti-BDS laws and attempts to use civil liability against Black Lives Matters protesters.

I did a Westlaw search for his most-cited opinions. He wrote Apprendi, the first move in the push to returning control over sentencing to juries. He wrote the opinion establishing Chevron deference, a doctrine in danger of overruling by the current Court, but not associated with him by name. He wrote the opinion in Sony v. Universal, which held that VCRs did not infringe copyrights. He wrote Clinton v. Jones for a unanimous Court, which had significant political consequences, but will not stick to him. And while not an opinion for the Court, his "ask me later" concurrence in Asahi means the Court did not, and still has not, solved the stream-of-commerce v. stream-of-commerce-plus problem for personal jurisdiction.

Update: In the realm of opinions that angered people, Linda Greenhouse's Times obit points out that Stevens wrote the majority in Kelo. She also suggests that Stevens' long period as senior-associate will be key to his legacy, elevating him from relative obscurity into a role that he enjoyed.

Mueller Report: The Play (Updated)

What started as a joke and emerged as parody was done as a serious piece of theater , titled The Investigation: A Search for the Truth in Ten Acts. It features A-list actors including John Lithgow, Joel Grey,* Annette Benning, Kevin Kline and Justin Long; it was written by award-winning playwright Robert Schenkkan. A video of the show (running about 1:15) is embedded in the LawFare piece and at the Law Works site.

[*] "Willkommen! Dobro Pozhalovat! Welcome!"

The author of the LawFare piece (Mikhaila Fogel) explains how dramatization shows how members of Congress should (and should not) approach next week's hearing. In short: Do ask "deliberate, narrative-driven questions about the text of the report [that] will tell a powerful and credible story;" do not rely on "[s]entiment, indignation and pontification." In other words, act like trial lawyers or judges, not grandstanding politicians.

Update: Having watched watched the performance (from late June), I see Fogel's point about melodrama. But if House Dems see themselves as speaking to the American People--specifically those portions of the American People who are neither convinced of Trump's culpability nor unpersuadable that Trump did anything wrong--there is a nice legal question of how to understand that audience. Is it a jury or a panel of judges? And does that affect how you ask the questions to present the case? And should it?

Also: If a similar reading  of the Starr Report had been staged in 1998, imagine the accompanying soundtrack.

It's the district court order, not the SCOTUS affirmance

On the eve of Friday's hearing on the next steps in the census case, more thoughts on nomenclature: The concern about the should not be framed as "The President is disobeying a Supreme Court decision."* The concern should be framed as "The President is disobeying a court order."

[*] Decision is an imprecise word, in any event. The court issues a judgment/order and the court issues an opinion explaining that judgment. I suppose a decision encompasses both of those. But when the judgment/opinion distinction matters, as it does, the specific words are preferable.

The key is that an injunction, entered by the district court, is in place and prohibits the printing and use of a census form with a citizenship question. That order prohibits the government from proceeding with a census containing that question and that order is what the President, Commerce, et al. violate if they proceed with the question.

That the Supreme Court affirmed the district court injunction is beside this point. SCOTUS affirmance means the government has nowhere left to turn within the judiciary. But it does not add greater force to the district court's injunction. Government officials violate the order by proceeding with the census-with-citizenship-question--whether they had proceeded the day before SCOTUS affirmance or the day after SCOTUS affirmance.

Independence Day is not military

The President has added military elements (including tanks that may damage the bridges into the district) to the Independence Day celebration on the National Mall. Many argue that this reflects the ostentatious military parades staged in the former Soviet Union, North Korea, and other authoritarian regimes trying to convince their people and the world of their power and greatness (which they usually lack in reality).* Unfortunately, these are the governments and leaders the President likes and respects and wishes to emulate.

 [*] As Tom Nichols puts it in The Atlantic, Trump "has blown through the romance of Bastille Day and past the stodgy opera of the Soviet May Day reviewing stand, and is now squarely in the North Korean 'Because I feel like it' mode." 

I want to offer a different criticism: A  military display does not reflect what we commemorate and celebrate on Independence in the U.S. The signing of the Declaration was an expressive and political act. And it was nominally grounded in theoretical and philosophical terms of consent of the governed, the law of nations, the purposes of government, and human rights--all decidedly non-militaristic ideas. This holiday should not be celebrated in militaristic terms because it does not mark an historic military action.** I reacted the same way several years ago when the m.c. at the small-town celebration I attended announced that the day was about the men and women in the military.  The evolution of the world from 2011 to 2019 can be seen in the evolution of this militaristic conception from the uninformed remarks of the speaker at a celebration at the Delaware beach to the President commandeering the Capitol concert and fireworks for his own display of military force, while threatening to ignore court orders.

[**] France's historic act of independence was a military event, so it makes some sense to celebrate with a parade. The equivalent for the U.S. might be commemorating Yorktown, the culmination of the military force that was necessary to secure what we mark on the 4th of July. But we do not do that. Or it might be Lexington and Concord, somewhat analogous to the storming of the Bastille. But Boston celebrates that by running a long race and playing a baseball game.

Rather than tanks and planes, the best move would be to return to Mark Twain's suggestion that public celebrations include a reading of the Declaration.

More action on the census (Edited)

The citizenship-question case is heating up, following a tweet from the President denouncing as fake news reports that the administration had stopped pursuing efforts to place the citizenship question on the 2020 census. This despite DOJ attorneys having represented that fake news to plaintiffs' counsel and the district court as the government litigation position. This did not sit well with Judge Hazel (D.Md.), who held an on-the-record telephone conference to find out what is going on (as was the attorney for the government).

Judge Hazel questioned whether the government attorneys were speaking for their client at this point. He responded skeptically to the plaintiff's suggestion that he enjoin government officials (presumably including the President) from tweeting or otherwise speaking contrary to the government's litigation position or to requiring the Census Bureau or Commerce Department to publicly counteract any contrary tweets from the President.

The court gave the parties until Friday to submit either a stipulation that the citizenship question will not appear on the census or a scheduling order for litigating the equal protection issues (denying, with a sharp "no," the government's request to have until Monday). Meanwhile, Judge Hazel confirmed that the injunction prohibiting the government from printing questionnaires with a citizenship question remains in place, meaning the President is flirting with ignoring (or ordering underlings to ignore) a court order. On the other hand, government attorneys suggested they may go back to SCOTUS for a motion "clarifying" (or "undercutting," from the plaintiffs' standpoint) the Court's remand decision.

The court declined to do anything to get a firmer answer on whether June 30 (last Sunday) remains the drop-deadline by which the government must have the census form finalized (as the government has insisted throughout the litigation-he suspected "we're not going to get a useful answer to that question." But the court made clear that he did not blame the attorneys for this confusion.*

[*] Another way departmentalism remains in check, at least with a normal President. DOJ lawyers do not like getting yelled at when the executive officials they represent go off the rails. With a normal President, the attorneys can try to exert some control over the client. Or, with an abnormal President, they could resign or refuse to carry out his inappropriate wishes. Neither is happening here.

Judicial departmentalism and overbroad injunctions in the news

First, the Fifth Circuit reversed the contempt citation against a Carmen Alvarez and her attorneys for attempting to enforce the Department of Labor's overtime regs in a private action following a universal injunction prohibiting DOL from enforcing those regs in an action brought by Nevada and other states. The court held that there was no privity between DOL and Alvarez or her lawyers, because there was no evidence of an express or implied relationship among them that is necessary for one party to adequately represent the interests of another. The court stated that Chipotle's theory that "DOL represents every worker’s legal interests through its enforcement of the FLSA so as to bind every worker in the United States to an injunction where the DOL is the only bound party lacks authoritative support." Like Title VII, the private right of action under labor laws and regs leaves room for private persons to claim injuries and remedies distinct from those established in government enforcement.

Second, Texas GOP Representative Chip Roy took to Twitter to urge the President and the Commerce Department to ignore the lawyers "Completely. Print the census with the question - and issue a statement explaining why - “because we should.” Done." Such action could not be defended as judicial departmentalism, which allows executive disregard of precedent but not particular orders in particular cases; those most be obeyed unless reversed or modified. The President, the Commerce Secretary, and the other federal officials involved would be violating a court order prohibiting the use of the citizenship question* and would be subject to contempt and contempt sanctions for that action.

[*] Another example of indivisible remedies, giving an individual injunction universal scope. The government cannot print or use multiple census forms, so an injunction protecting individual plaintiffs spills over to protect everyone.

Another remedy in The Wall

Judge Gilliam of the Northern District of California issued two orders on Friday declaring invalid President Trump's efforts to divert funds for building The Wall. In Sierra Club v. Trump, the court permanently enjoined three acting cabinet officers and "all persons acting under their direction" from "taking any action to construct a border wall" in certain areas using certain funds. In California v. Trump, the court declared the use of the same funds for some of those sections unlawful, but declined to grant a permanent injunction. The court also ensured that the cases could be appealed together by certifying California for FRCP 54 appeal, along with the immediately appealable injunction.

Sierra Club does not speak to the scope of the injunction, because this is a case of indivisible relief and remedy. The court cannot enjoin the use of funds for the wall as to the plaintiffs but not to non-parties; any prohibition on the use of funds unavoidable inures to everyone's benefit, even if the injunction is formally particularized to the plaintiffs.

The court justified denying the injunction in California by pointing to the injunction in Sierra Club prohibiting use of funds on the same sectors of wall. California (and New Mexico, its co-plaintiff) would suffer no irreparable harm, because the injunction protects them in effect if not in name. This provides an interesting example of when declaratory relief may be sufficient and an injunction unnecessary--when an injunction protects the D/J plaintiffs, so the declaration is sufficient. It also answers the Ninth Circuit's question about whether a universal injunction in one case moots another--it does not moot the case because a declaratory remedy may be effective, although an injunction is not warranted. (Not that courts should issue universal injunctions--but this is the practical effect if they do).

Democracy and judicial review

Chief Justice Roberts' decision for the Court in the partisan gerrymandering cases accepts that partisan gerrymandering is a bad thing, but insists that it must be left to popular and political processes. He emphasizes the numerous bills introduced in Congress over the years that would address this. Justice Kagan's dissent nails him with the obvious: "[W]hat all these bills have in common is they are not laws" and not likely to become laws, because the politicians who would make these bills into laws are not going to undo the partisan gerrymandering from which they benefit.

I am going to give Roberts a small credit for implementing a neutral theory: These bills have not become law because legislators have not acted because the courts were available as a backstop against the problem. This is a version of the criticism that judicial review worsens the legislative process, because legislators need not take their obligations seriously knowing that the courts will clean up their mess. With the federal courts out of this game, Congress will now take seriously its obligation to address what everyone recognizes is a problem.

Of course, this credit assumes that Roberts would not read "Legislature thereof" in Article I, § 4 to preclude federal action limiting districting just as he read the term to prohibit redistricting commissions.

Whither Cohen?

In Iancu, Justice Alito's concurrence and the Chief's partial dissent both assert that Congress could constitutionally prohibit trademarks for vulgar or profane words (The Chief argues that Congress did so in the word "scandalous," while Alito argues Congress must amend the statute to do so). Alito goes so far as to argue that the word fuck, as hinted at in the F-U-C-T mark, "is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary."

But neither Alito nor the Chief cites Cohen. (Neither does Justice Kagan's majority opinion, because "scandalous" is not limited to vulgarity or profanity, so it does not matter to her analysis). And Cohen answers Alito's argument that profanity signifies nothing except emotion--emotion is an essential and inseparable part of the message.

Only Justice Sototmayor's partial dissent (joined by Justice Breyer) addresses that case. She argues that, at best, Cohen means that a restriction on profanity is viewpoint-neutral content discrimination. Profanity "tweaks" or "amplifies" the viewpoint, such that the message is without the profanity is "not quite the same" as with it. But targeting profanity does not target the viewpoint expressed in the message--California would not have allowed a jacket with "Fuck Draft Protesters."

I see Sotomayor's point, although I am not sure I agree. First, consider Justice Alito's plurality (which Sotomayor did not join) in Matal v. Tam, in which Alito argued that the "disparaging-mark" provision was viewpoint-discriminatory. Alito called it a "happy-talk clause" that prohibited registering any mark that criticized, whether the target was racists or anti-racists. A "clean-talk clause" should be equally problematic.

Second, if Sotomayor is correct, it gives short shrift to the possibility of the trademark program as a public forum, specifically a "limited public forum." A limited public forum is supposed to be a designated public forum (government space, opened for speech), although limited to specific speech or speakers. The limitations on the forum must be defined in viewpoint-neutral terms, although the terms can be content-discriminatory (e.g., a forum can be limited to political speech, but not to conservative political speech). Once that forum is established, any content-based restrictions on speech otherwise within the forum must survive strict scrutiny. Unfortunately, the Court has never explained well how to identify the definition of the limited public forum (which merely must be viewpoint-neutral) and exclusions from the established forum (which must be content-neutral, unless able to survive strict scrutiny). Sotomayor believes that, if the trademark system is a forum, the prohibition on "scandalous" (interpreted as "profane") marks makes it a limited public forum for non-scandalous (meaning non-profane) marks. But it as reasonable to see the trademark system as a limited public forum for "marks related to products offered for sale in interstate commerce." In that case, the limitation on scandalous/profane marks, being content-based under Cohen, must survive strict scrutiny.

Maybe this issue comes back around when Congress amends the trademark law to expressly prohibit profane marks.

Justice Alito takes on SJWs and foreigners

From the first paragraph of Justice Alito's concurrence in Iancu v. Brunetti:

Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

It is impossible to read that as anything other than an attack on progressives who would like hateful and discriminatory speech prohibited, especially on campus. Or an attack on Twitter and Facebook for their supposed anti-conservative bias in banning certain users. Or a potshot at European countries such as France and Germany, which maintain democracies committed to free speech while prohibiting viewpoints such as Holocaust-denial.

The idea that "free speech is under attack" has migrated from the Intellectual Dark Web to the U.S. Reports.

Justice Gorsuch, standing, and the end of the Establishment Clause

Justice Gorusch, joined by Justice Thomas, concurred in the judgment in American Legion v. American Humanist Association. Gorsuch argues that the plaintiffs lacked standing, because "offended observer" standing should not exist (and really is a product of Lemon, which he reads as having been buried today). Offense is not a basis for standing in any other context and is inconsistent with the rule against generalized grievances. Recourse for offense is either averting one's eyes or resort to political solutions.

If Gorsuch is right, it is difficult to imagine who has standing to bring an Establishment Clause claim. He offers three examples: A student forced to recite a prayer in school, a person denied public office because of his religious affiliations (or lack thereof), and a person denied government benefits for not practicing a favored religion. This seems disingenuous. Two of those examples are not purely Establishment Clause issues--the government official, at least at the federal level, also has a claim under the Religious-Tests Clause; the government benefits claim also could be pursued under the Free Exercise Clause or, as in Texas Monthly (which Gorsuch cites) the Free Press Clause. But a student would not have standing to challenge the prayer if she were merely forced to watch others recite it or to leave the room to avoid it. And no one has standing to challenge any public religious displays. In fact, looking at those examples, it would appear that a state could establish an official church  and no one would have standing to challenge that as long as individuals are not forced to participate in that church or otherwise disadvantaged for their non-participation in the religion.

Gorsuch's rejection of offended-observer standing also is inseparable from the narrowing of Flast taxpayer standing. Gorsuch did not offer a taxpayer as an example of someone with standing, so it appears he does not consider that a viable route. But this further constricts the range of available plaintiffs. The core Flast case has remained narrow because there is usually someone who can show something other than a pocketbook injury--there has been no need for a taxpayer to challenge the use of public funds for the Christmas tree display at City Hall because someone who had to encounter the display in City Hall could bring the claim. That avenue is foreclosed. So I expect the next target will be the core Flast case, where Gorsuch almost certainly lines up with the Chief, Thomas, and Alito.

Gorsuch's argument illustrates, in two directions, the Fletcherian point that "injury" is inseparable from the constitutional right at issue and so is really a merits issue. First, the response to Gorsuch's offense-is-not-injury argument is that the Establishment Clause is different than the Free Speech Clause or the Free Exercise Clause or the Equal Protection Clause. The point of the Establishment Clause is to prevent the government from creating a state religion, either formally or in practice; it prohibits the government from elevating religion and from imposing that elevation on members of the public. Thus, individual constitutional rights are violated by that elevation and being confronted with that elevation, as by erection of a large cross. But there is no equivalent provision prohibiting the government establishing or elevating racist ideas, as by flying the Confederate Flag. Or, to put it in the school context: The Free Speech Clause is satisfied so long as a student need not recite the Pledge of Allegiance (put aside "Under God"); the Establishment Clause prohibits the government from sponsoring prayer, even if participation is not required.

Second, Gorsuch's apparent view of standing reveals the substantive scope of his Establishment Clause. Government elevation or promotion or sponsorship of religion is constitutionally permissible--even to the point of establishing the Church of Alabama or naming the Southern Baptist Convention as the official religion of the State of Alabama--so long as no one is forced to participate or loses out for non-participation. Certainly no one would have standing to challenge that action, because the only injury would be the offense and message of exclusion. In any event, that Establishment Clause does not do any work independent of the Free Exercise Clause.

I would add that I do not follow offended-observer standing wherever it leads. In the travel ban cases, I argued against standing for those individuals claiming offense from the existence of the ban and its application against other people. But the key was that standing (or constitutional violation, as I like to think of it) is tied to execution, not the existence, of a law. So one can claim offense from the erection of the cross, but not from the law authorizing erection; one can claim offense from being barred because of religion, but not from the law authorizing the barring.

This is how you establish broad injunctive relief

The D.C.Circuit affirmed part of an injunction prohibiting enforcement of an ORR policy barring unaccompanied children from obtaining pre-viability abortions.

This is the type of case in which many courts have been issuing universal injunctions, despite that enforcement against non-plaintiffs does not affect individual plaintiffs. But the district court here took the procedurally appropriate approach--certifying a 23(b)(2) class of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government," then enjoining enforcement of the policy as to class members. We get to the same place, but through appropriate procedures, as it should be for a system in which constitutional review occurs within the scope of civil litigation. This is why the Court enacted 23(b)(2).

The majority opinion (per curiam for two judges) runs more than 70 pages. It applies the "inherently transitory class" exception to avoid mootness and considers the effect of the "one-good plaintiff" rule in multi-party individual actions as opposed to class actions. It spends a lot of time on the appropriate scope of the class, as opposed to the appropriate scope of the injunction--which is where the focus should be.

There is an interesting interplay between the inherently transitory and capable-of-repetion-yet-evading-review doctrines as to mootness, in that the former justifies the limits on the latter. C/R/E/R requires that the harm be capable of repetition as to the plaintiff; it is not enough that someone else might be subject to the harm. Protecting beyond the plaintiff requires a class, which is when the former doctrine kicks in. That leaves a gap--mootness cannot be avoided in an individual action to prevent harm to a non-party who may be subject to enforcement of the challenged regulations. But that is the point--the court provides remedies for parties, through the procedural mechanisms for establishing parties.

The government faces a choice. Justice Kavanaugh is recused because he was on the first panel to consider this case (the majority opinion discusses and rejects the position Kavanaugh took as to allowing the government to delay the procedure). So review would almost certainly produce an evenly divided Court affirming the lower court. So the government's best option is to obey the injunction, stop enforcing the policy and/or come up with a new policy, and hope that Justice Ginsburg retires.

On that note, a question for judicial-recusal experts. Imagine the following: ORR amends its policy to something slightly less restrictive and threaten to enforce it; plaintiffs return to the district court with a motion to enforce the injunction and/or an amended complaint, arguing that the new policy violates the rights of the same class; district court grants the motion and modifies the injunction to prohibit enforcement of the new policy; D.C.Circuit affirms. Must Kavanaugh recuse? The challenge is to a different policy. But it is the same litigation in which he ruled as a lower-court judge. Thoughts?

A dramatic reading of the Mueller Report

In 2012, PBS aired a documentary called The Central Park Five, produced by Ken Burns, his daughter Sarah, and David McMahon. It was excellent and thorough (although produced while the civil rights suit was pending and before the $ 41 million settlement). And it produced no public reaction--Linda Fairstein kept publishing books, Elizabeth Lederer kept adjuncting at Columbia, and Donald Trump was on a path to being elected President. But mere weeks after Netflix dropped DuVarney's docudrama When They See Us, Fairstein no longer has a publisher and no longer is on several boards and Lederer no longer teaches at Columbia.

The difference, it seems to me, is the drama of the docudrama compared with the reality sought in the documentary. When They See US depicts Fairstein as the big bad,* determined to get these rapists and stubborn to the point of arrogance when confronted with evidence of their innocence.** Lederer is depicted as plagued by doubts about the case, but charging ahead and being tough in her cross examination, including bringing out negative or embarrassing information about the defendants.*** The drama, the pathos, creating heroes and villains--you get that in a docudrama but not in a documentary.

[*] Along with the cops, who we expect to behave badly.

[**] It probably does not help Fairstein at this moment to have been played by Felicity Huffman.

[***] As, of course, she should as a good lawyer representing a client.

Which brings me to the Mueller Report. A press conference will not do it (obviously). Neither will congressional testimony, even if the point is just to have Mueller read the report live on camera.

Instead, we need a dramatic reading. Get James Earl Jones, Morgan Freeman, Meryl Streep, Dame Maggie Smith, Nancy Cartwright (the long-time voice of Bart Simpson), and any other great-sounding actors and actresses. Put them on TV and have them read or perform the report in the most dramatic fashion possible.

The first thing we do, let's fire all the lawyers

The fallout from When They See Us, the Netflix series on the Central Park Five, continues.

Linda Fairstein, the attorney who led the DA's sex crimes unit, was dropped by her publisher and forced to resign from several boards, including the Board of Trustees of Vassar College. Elizabeth Lederer, the attorney and lead prosecutor, will not return as an adjunct at Columbia Law School, amid student protests and calls from the Black Law Students Association not to renew her contract. On the other hand, none of the police officers who engaged in the coercive questioning has been sanctioned in any way--none has been fired or lost current non-policing gigs. Nor have other top city or DA officials (if any are alive--former DA Robert Morganthau is still active at 99). And the prominent NYC citizen who took out a full-page ad calling for their execution? Well, we know where he is.

One conclusion is that, as lawyers, Fairstein and Lederer must be held to a higher standard. We expect cops to do whatever it takes to get a confession to clear a case. But we expect lawyers to be justice-seeking "Men for  All Seasons," stepping back from the heat and passion of the moment to cast a thoughtful and rational eye and to slam on the brakes when they spy injustice, such as improper police questioning. So when prosecutors barrel forward and do their best to represent their client, they are excoriated, and must be sanctioned, for being part of the problem in the criminal-justice machine barreling over communities of color. Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors.

Is there anything either could have done to avoid the fallout? Would it have been enough had each apologized and acknowledged that they had the wrong person but that they went forward with what they had in 1989? (Fairstein has dug in her heels, I am not sure what Lederer has said about the case or the exoneration). Is it enough to acknowledge mistakes? Or are both tainted by association with a racially charged wrongful conviction, such that neither she be allowed to continue in polite society or in the business of teaching law? To the extent any scorn might be heaped on Morganthau for allowing the prosecution to go forward, he says he his proud of the exoneration.

The obvious analogy is with the recent controversy over Harvard dismissing Ronald Sullivan as a res college dean (although not as a member of the HLS faculty) following student protests over his involvement in representing Harvey Weinstein. Those who defended Sullivan and criticized Harvard (and the students who pushed for Sullivan's dismissal) emphasized the Sixth Amendment and the need for lawyers to zealously represent the worst of the accused. The possible distinction is that prosecutors are supposed to have a different obligation--not to a client who enjoys certain constitutional rights, but to doing justice. But once prosecutors decide, in their best justice-directed judgment, that they have the right defendants, they are supposed to just as zealously represent their clients (in this case, the People of the State of New York). It seems perverse to punish a prosecutor, who considered justice but reached a good-faith conclusion, for being too good a lawyer. I am curious how people reconcile opposition to what Harvard did to Sullivan with what Columbia did with Lederer--is it the lack of contrition?

Finally, we should not overlook that the only people involved in the case from the government's side suffering any adverse professional or personal consequences are women. Not the man who supervised them or the men who mistreated the kids and coerced their confessions. And not the man who called for their execution. Make what you will of that.

Reacting to "Chernobyl"

I finished watching HBO's wonderful mini-series Chernobyl. It is interesting to see the distinct messages drawn from opposing political sides--the same show being watched in different universes.

For many conservatives, the message is "Soviet Union/Communism/Socialism is bad." The insight of the series is how bad things are when the state owns things like nuclear power plants, as well as the scientific institutes that investigate accidents. The current relevance is how much better we are because there is no Soviet Union and how bad it would be if one of those socialists became President.

For many liberals (and for the producers of the series), the message is "the cost of lies," the line with which the lead scientists begins and ends the series. The insight is the lies (or false denials) surrounding the fact and severity of the accident and the lies surrounding the cause of the accident. The current relevance is that we have similar problems of governmental lies and secrecy and willingness of people to lie to protect the government or its leaders. People will lie on behalf of many leaders, not only a communist state.

For what it is worth, showrunner Craig Mazin says it is both: "It’s anti­–Soviet government, and it is anti-lie, and it is pro–human being."

Politics and sports, again

The Fresno Grizzlies, the Washington Nationals' AAA affiliate, is being criticized for a video it showed on the scoreboard during its Memorial Day game. Images were shown over the sound of Ronald Reagan's First Inaugural; when the speech turned to "enemies of freedom," the video showed Kim Jong-un, Fidel Castro, Alexandria Ocasio-Cortez, and various protesters holding ANTIFA and "NO TRUMP NO KKK" signs. The team has apologized to Ocasio-Cortez specifically and to fans generally; the official team line is that the video was produced by a third party and found online (it seems to be available on You Tube) and no one with decisionmaking authority within the organization watched the whole thing.

This piece of an article, quoting Grizzlies General Manager Derek Franks is interesting:

Franks said it wasn’t a deliberate attack by the employee or the Grizzlies organization on the congresswoman.

“No, no, no, not at all,“ Franks said. “There was no ulterior motive. Our goal is never to mix baseball and politics and in this case, this was not an exception that was made. It was simply a careless mistake that we will make sure never happens again.”

First, bullshit as to the employee's intent. I can believe it was not a deliberate attack by the organization; I buy the excuse that no one with real authority in the organization watched the whole video. That is gross negligence, but not necessarily  deliberate. But some low-level lackey must have watched the entire thing and put it forward, probably figuring no one above him was going to check his work.

Second, bullshit on the team not wanting to mix baseball and politics. It is impossible to not mix baseball and politics because baseball is loaded with politics. Otherwise the Grizzlies never would have shown the video. To suggest otherwise defines politics to mean partisanship--the National Anthem or a patriotic video is not political because both parties sing and like it. This is nonsense (even allowing that a speech by Ronald Reagan is non-partisan). There is nothing wrong with mixing baseball and politics--we have been doing it for 100+years--although it makes sense to keep your political message as anodyne as possible to avoid situations like this. But own the political nature of it.

Third, I am less troubled by the inclusion of Ocasio-Cortez (although I appreciate  her complaint that things like this ramp-up the barrage of hate mail and threats she receives*) than I am by the inclusion of images of protesters. The idea that protesting--including protesting fascists, an unpopular President, and the KKK--makes someone an enemy of freedom to be defeated is, unfortunately, telling about where we have landed.

[*] And some morons cannot resist making things worse even when purporting to defuse the situation. Fresno Councilman Gary Bredefield called the video inappropriate, but could not stop himself from adding that socialism "is the exact opposite of our founding principles and traditional values"--in other words, that Ocasio-Cortez's political ideas, and thus Ocasio-Cortez, are un-American. Think that might set-off a few crazies with Twitter accounts?

Read more here: https://www.fresnobee.com/news/local/article230903884.html#storylink=cpy//www.fresnobee.com/news/local/article230903884.html#storylink=cpy

Mitch McConnell and neutral principles

Over the weekend, Senate Majority Leader Mitch McConnell told a Chamber of Commerce luncheon that the Senate would fill a Supreme Court vacancy that should arise in 2020, contra his arguments in 2016 that the Senate should not fill Justice Scalia's seat in an election year but should let the people decide who should fill the vacancy. Asked to explain the seeming inconsistency, McConnell spokesman David Popp said the difference is that in 2016, the President was a Democrat and the Senate was controlled by Republicans, while now the Republicans control both.

Obviously that is nowhere close to what McConnell argued three years ago. But what would McConnell say about the converse of 2016--would not filling the seat be similarly proper when the President was a Republican and the Senate controlled by Democrats? That is, was Popp's point about split partisan control (a nonsense argument, but at least neutral) or was it specifically Democratic President and Republican Senate that made it ok, while the converse would not be?

I would have expected a different disingenuous argument, one that would sound slightly more neutral: The difference is that in 2020 the incumbent is seeking reelection and so is in the prime of his executive power, whereas the Democrat presented to the voters was not the current President. Again, a stupid argument. But it at least pretends to rest on some principle besides "now my party has the White House."

The difficulty of civil rights relief

I may give my Civil Rights class the story of San Francisco police raid on a free-lance journalist seeking the identity of the journalist's source and unused material for a story on the death of the county public defender. The chief of the San Francisco police apologized on Friday, saying the search and seizure was wrong in several respects, that it would not use the materials seized, and that the matter was being referred to other agencies for further investigation. The journalist, Bryan Carmody, has moved to quash the warrants.

The case illustrates the difficulty of obtaining retrospective relief and remedies in federal court for constitutional violations and the way plaintiffs must threat a needle. It thus provides a nice puzzle for class discussion. Consider:

  • The constitutional merits are up in the air. The search may have violated California's shield law, which protects journalists against disclosure of sources and unpublished information, including by police; but state law cannot provide the basis for a § 1983 claim. Nor can the fact that the officers violated department policies. The First Amendment does not provide such protections. There could be a First Amendment retaliation claim, as the police who obtained and executed this warrant seem to have had it in for Carmody; that claim may depend on how the Court resolves Nieves v. Bartlett (if it ever does) on the connection between probable cause and First Amendment retaliatory intent.

    • The judges who issued the warrants have judicial immunity.

    • Police officers have derivative judicial immunity for carrying out the warrant. That immunity is lost if execution went beyond simple enforcement, as some stories suggest it did in using a battering ram and pry bar to get into the house and handcuffing Carmody during the search. Of course, the officers may enjoy qualified immunity, unless Carmody can find precedent involving an over-the-top search of a journalist's home.

    • There is a better claim that the officers did not disclose Carmody's status as a journalist in the warrant application, which the chief identified as a problem. But again, it likely is not clearly established by factually similar case law that not disclosing a search target's status as a journalist violates the First or Fourth Amendments. And even if clearly established, it may be hard to identify or establish damages arising from the omission on the warrant, independent of the search (which was authorized by warrant).

    • The city cannot be sued. The search violated departmental policy in several respects. There is no indication that any department or city policymakers were involved in the warrant application or search. And there is no indication that this has happened previously to put policymakers on notice that training  ("hey, don't search journalists looking for sources") was necessary.

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

What's Roe got to do with it?

Andrew Sullivan praises Elizabeth Warren's proposals to codify Roe-level protections through federal legislation, because it allows for a political debate and political compromise that Roe preempted. He also blames Roe for the "batch of truly extreme bills in red states outlawing" abortion, which are designed to gin up a Supreme Court case that, with Brett Kavanaugh on the Court, will overrule Roe and the constitutional right to reproductive choice. But neither premise makes sense.

Sullivan's argument seems to be that because public opinion has remained relatively static on abortion since 1973, that legislators would not enact such extreme laws that are bound to be unpopular. But that makes no sense.  Alabama did not enact this law to challenge Roe for the sake of challenging Roe. It enacted this law because officials want to stop women from having abortions in Alabama. Once Roe is overruled, this remains the law in Alabama; there is no reason to believe that the Alabama legislature, having had its law declared constitutionally valid and enforceable, will say "oh, let's find a compromise." This will be the law in Alabama and the governor will set about enforcing it with glee. And nothing about Alabama's political alignment suggests Republican officials would pay any sort of political price for these laws. Same with Georgia, Missouri, and other states following on this course.

Roe was decided in a world in which abortion was illegal in many states. Without Roe, many of those bans would have remained in place. Or, as some states liberalized reproductive choice (which was happening in the years prior to Roe), other states (likely the states that are in the news now) would have enacted the laws that they are enacting or seeking to enact now. Contra Sullivan, it seems as likely that, without Roe, we would have gotten where we are (or where we are headed), but would have gotten here 40 years ago.

I also wonder about the constitutional validity of Warren's proposals under current doctrine and given the current Court (putting aside that it would not pass).

In her Medium piece, Warren calls for federal legislation that would: 1) Prohibit states from interfering in the ability of a health care provider to provide medical care or from interfering in the ability of a patient to access medical care from a provider; 2) Preempt TRAP laws; 3) Guarantee reproductive-health coverage in health plans, including repealing the Hyde Amendment; and 4) general protections for women, in seeking care and elsewhere (such as at work).

Is this valid federal legislation and under what power? Not § 5. Without Roe, Due Process does not protect reproductive freedom, so a law designed to protect that freedom by prohibiting state-level bans would not be congruent and proportional as to constitute legislation "enforcing" the 14th Amendment. Perhaps it could be framed as a gender-equality provision, enforcing the equal protection rights of women. But is halting abortion discrimination against women or is it halting a particular medical procedure that happens to have a disparate effect on women? And if the latter, is a disparate-impact provision congruent-and-proportional to a constitutional right that only prohibits disparate treatment?

So the power source would have to be the Commerce Clause. But a law doing what Warren proposes would interfere with the traditional state function of regulating the medical profession, the doctor-patient relationship, the insurance industry, and local zoning. Might the same five Justices conclude that there is not a sufficient nexus to interstate commerce to allow federal law to supersede state law in this area of historic state power?

I welcome thoughts on these questions--not being a Commerce Clause scholar, I do not know the answer. But pinning this on Roe, or suggesting that the anti-choice craze that has taken hold in these states is simply a reaction to Roe, seems wrong.

The new abortion laws and judicial departmentalism (Updated)

Whatever I may believe about the new abortion restrictions in Ohio, Alabama, and Georgia as a matter of policy or validity under my normative understanding of the Constitution, the process is playing as it should in a judicial-departmentalism regime:

The political branches enact--and plan to enforce--laws that they believe are valid on their best constitutional understanding. That this understanding conflicts with prevailing judicial doctrine does not matter. In fact, it cannot matter. Judicial doctrine can change only if there are new cases for the courts to hear and decide; new cases arise only if governments enact laws that might be invalid under current doctrine, then are able to argue for reversing existing law or establishing new law in defending those laws in court (whether against a defense in an enforcement action or as defendant in a pre-enforcement Ex Parte Young action). The government then takes its chances. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees.  This is how the system, and the interplay among co-equal branches with interpretive authority, works.

Dahlia Lithwick argues that these new abortion restrictions put Chief Justice Roberts in a bind. Roberts, Lithwick, argues, wants to maintain the facade that judicial decisionmaking is more than raw politics; one way to do so is through incrementalism, rather than overruling the right to reproductive freedom in one fell swoop. The way to do that is to allow lower courts to declare these new laws invalid (as they are under existing doctrine) and enjoin their enforcement, then deny cert (all while deciding other cases involving other laws that allow the Court to limit the right without overruling precedent). The problem is that it takes four (Thomas, Alito, Gorsuch, Kavanaugh) to grant cert in one of these cases, which might force Roberts to forego his desired institutionalism or vote to retain Roe as precedent. Unless he can convince Kavanaugh or Gorsuch to join him in slow-walking things.

This argument works both ways politically. Imagine Hillary Clinton had won, appointed Merrick Garland and Sri Srinivasin to the Court, and now want to overrule Shelby County so DOJ can resume enforcing the pre-clearance requirements of the Voting Rights Act. What would have to happen? DOJ would resume enforcement efforts, creating new litigation in which DOJ argues that Shelby County should be overruled. If it is right about the readiness of the Court to overrule precedent, it wins in court and gets the legal change it sought. If it loses in court, it is on the hook for (likely substantial) attorney's fees. But there would be no alternative way to set-up the judicial question.

Update: Gerard paints a different scenario, in which Ginsburg, Breyer, Sotomayor, and Kagan rush to grant cert (perhaps after the district court issues the inevitable injunction but before judgment in the 11th Circuit), daring their brethren (literally, given the gender divides on the Court) to eliminate the constitutional right to abortion in a case involving laws that allow for no narrowing construction, provide no exceptions, and are punitive in nature. And all in an election year.

The end of the Warren Court (Reposted and Updated)

Elsewhere, Steve  notes that today marks the 50th anniversary of Abe Fortas' resignation from SCOTUS, making it the last day that the Court had a majority of Democratic appointees.

But it is more than just the appointing party.

In his history of the Warren Court, Lucas Powe argues that what we label "The Warren Court" lasted about 6 1/2 years. It began in the fall of 1962 with the appointment of Arthur Goldberg, which provided a consistent five-person liberal/civil libertarian majority. Goldberg was replaced by Fortas three years later, continuing that five-person majority on mostly the same terms (save for perhaps a few outlier votes). And the appointment of Thurgood Marshall in 1967 solidified that majority by providing a one-vote cushion--the liberal position could afford one defection (such as Justice Black in some crim pro cases) and still retain the majority. Because of Fortas' forced resignation, that six-Justice majority became a four-Justice minority within four months of Nixon's inauguration.

This presents two fun what-ifs. First, Fortas was 58 when he resigned and lived another 13 years. How different might the jurisprudence of the 1970s have been had he remained on the Court with Douglas (replaced by Stevens in 1975), Brennan, and Marshall  as a starting point. And maybe Fortas retires prior to 1980 and gives Jimmy Carter the appointment he never had. Second, how might Nixon's Court appointments have differed? If Fortas does not resign, Blackmun remains on the Eighth Circuit in 1971 when Black and Harlan retire within days of one another. Does Nixon nominate Blackmun for one of those spots, since he appears to have been Nixon's "next" nominee, or had his time passed? Does Powell or Rehnquist, who were commissioned simultaneously, get the other? And if Powell, how does Rehnquist get on the Court and, more importantly, still become Chief?

Update: SCOTUSBlog has an interview with author Michael Bobelian about his new book Battle for the Marble Palace, which examines Fortas' failed nomination as Chief, marking it as the starting point for the "modern" Supreme Court and "modern" appointments process.

Ginsburg wields the assignment power

A 5-4 majority in Apple v. Pepper held that iPhone users can sue Apple for anti-trust violations resulting from its App Store monopoly. Justice Kavanaugh wrote for himself, Ginsburg, Breyer, Sotomayor, and Kagan. People will be talking about that line-up and Kavanaugh splitting on a text-based antitrust case.

That line-up means Ginsburg assigned the opinion as senior-most associate justice in the majority (the Chief and Thomas, the two more senior to her, dissented). This is the second time Ginsburg assigned the opinion, the first coming last Termin Sessions v. Dimaya. Note that Ginsburg made the strategic assignment move here-she gave the opinion to the unexpected member of the majority as a reward and to keep him in the fold.

SCOTUS overrules more precedent, no textual support to be found

The buzzwords that Republicans and judicial conservatives insist make their approach the only legitimate and constrained are textualism and respect for stare decisis. It is hard to take that seriously after today's decision in Franchise Tax Bd. v. Hyatt, holding that the Constitution requires that a state enjoy sovereign immunity in the courts of another state and overruling 1979's Nevada v. Hall. Justice Thomas wrote for himself, the Chief, Alito, Gorsuch, and Kavanaugh; Breyer dissented for the other four.

There is no textual basis for this (there really is none with all of state sovereign immunity); the majority instead relies on what is implicit in the structure and the "implicit ordering of relationships within the federal system." As for respect for stare decisis, the majority disposes of that in less than two full slip-opinion pages. Justice Breyer closes his dissent with a portentous "[t]oday’s decision can only cause one to wonder which cases the Court will overrule next."

Empathy, LGBT rights, and employment discrimination

Rick Bales (Ohio Northern) predicts that SCOTUS will hold 6-3 that Title VII prohibits discrimination against LGBT employees as a form of sex discrimination. He predicts that the "defectors" will be the Chief and Kavanaugh--the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated and Kavanaugh as a way to show himself as less political and because such a decision might reflect the empathy he espouses.

More on Kavanaugh and empathy

Thanks to Paul for parsing Kavanaugh's Senate testimony. I stand corrected as to Kavanaugh--his comments on Monday were consistent with his testimony, suggesting a sincere belief that judges should think about and understand all sides of an issue and the effects of judicial decisions. My mistake in lumping Kavanaugh in with the standard reaction to the idea of empathy among Republicans in Congress and many conservative commentators.

Working off what Paul provides, let me add the following:

• "Empathy" as a concept in judging is non-ideological. One can listen to all sides and consider the effects of decisions and reach a range of results across an ideological spectrum. It does not reflect or demand a commitment to any party or position. It is surprising that the concept continues to generate so much opposition.

• The questions from Sasse and Graham show a continued inability (or refusal) to recognize the distinction between empathy and sympathy (Graham even uses the wrong word).

• I am not surprised that no Democrats addressed this in either direction, because they have run from empathy from the minute Obama mentioned the concept and the public discussion immediately misunderstood the word and what he meant.

Taking universality seriously (Updated)

One of the criticisms of universal/non-particularized injunctions is that they preempt percolation in lower courts, because the universal injunction by Court I short-circuits litigation in Court II, because Court I's injunction precludes the government from undertaking new enforcement efforts. Supporters of universal/non-particularized injunctions counter that the substantial amount of parallel litigation shows that percolation still occurs, as multiple parties bring multiple lawsuits in multiple courts. My reply has been that this shows courts are not serious about universality, in which case it would be better if each court kept its injunctions particularized and avoided the controversy over the scope.

Now comes this Ninth Circuit order in California v. HHS (involving repeal of the contraception mandate), in which the court requests briefing on whether the appeal of a particularized injunction has been rendered moot by a universal injunction issued by the Eastern District of Pennsylvania and how the mootness analysis is affected by the universal injunction coming from a trial court in another circuit.

Update: Sam Bray argues that the court should think of this in terms of "equitable mootness" rather than Article III mootness--equity may weigh against an injunction in the 9th Circuit case because the 9th Circuit plaintiffs are protected as non-parties to the EDPa universal injunction.

The correct answers should be as follows:

• The EDPa injunction makes this case unnecessary. There is no possibility that the government could enforce the revised mandate in a way that would violate the rights of the California plaintiff, because doing so would violate that universal injunction and could be halted with a motion to enforce the injunction in EDPa. So California or those on whose behalf it is suing no longer are having their rights violated and no longer face a reasonable prospect of having the law enforced against them, because doing so would subject the government to contempt of court.

• It does not matter that the injunction came from a district court. A district court injunction, unstayed, carries the same force and effect as an injunction affirmed by a court of appeals. District court decisions carry less force as precedent in affecting future cases; they do not carry less force as judgments, unless and until stayed or reversed on appeal.

• It does not matter that the injunction was issued from a court outside the Ninth Circuit. This is where the nomenclature matters. All injunctions are (and should be) "nationwide," in that they protect everywhere a protected person goes. A plaintiff protected against enforcement of some law is protected against enforcement wherever he is and the bound government is prohibited from enforcing wherever the target is. It follows that if a court has the power to protect non-parties (to issue a non-particularized or universal injunction), then it protects those non-parties everywhere. If EDPa had the power to issue an injunction prohibiting enforcement against all targets of the regulation, then that injunction protects them everywhere those targets may be.

• The argument against mootness is that the EDPa injunction might be reversed on appeal, which would revive the current case or force the California plaintiffs to come back to court for their own injunction if the EDPa injunction goes away. This creates the individualized litigation that proponents of universality want to avoid--the individualized litigation that I argue the system requires (outside of class actions). Courts could avoid the uncertainty if they would simply keep their injunctions to themselves--limit them to the parties before them, but protecting those parties everywhere they go.

Electing women

A question asked over dinner: Why are so many nations ahead of the United States in electing women to the highest national office?

A possible answer: The influence of a nation's political system. Many (most?) of the women in these countries have been elected as prime minister (or its equivalent), the head of government who is not also the  head of state. So they are not elected nationally, at least not as a formal matter; they are elected in legislative districts and assume national office by virtue of leadership in a political party that attains a legislative majority (or leads a legislative coalition). This seems true of many of the European and Commonwealth countries that most Americans think of as having elected high-profile women leaders, although there are counter-examples in South American and Asia.

Note that the United States has elected a woman in this manner--Nancy Pelosi. But the U.S. political system does not give her the same power that Germany or Norway or New Zealand does.

The Special Counsel’s Decision Not To Prosecute Donald Trump Jr.

Since Robert Mueller’s report was released on April 18, a number of people have commented on the Special Counsel’s decision not to make a “traditional prosecutorial judgment” about whether President Trump obstructed justice and thus committed a crime.  But the Mueller Report contains other decisions not to prosecute.  And I’d like to focus on one of them here.

Mueller decided not to prosecute a person who violated 18 U.S.C. 1030, a section of the Computer Fraud and Abuse Act.  Although the person’s name has been redacted for “personal privacy,” it seems obvious to me that the person in question is the President’s son, Donald Trump, Jr.  The portion of the report that describes Don Jr.’s conduct is not redacted (it is described on page 60 of the Mueller Report), and Orin Kerr published this helpful article over at LawFare last year explaining how Don Jr.’s conduct falls within the criminal prohibition in section 1030(a)(2).  The partially redacted declination decision appears at pages 179-80.

I assume that the decision to redact Don Jr.’s name from the declination analysis is grounded in the same “fairness concerns” that prompted Mueller not to reach a judgment on whether the President obstructed justice:

The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

It isn’t immediately clear to me why those fairness considerations would shield only a legal determination of guilt and not a recounting of underlying facts.  But that appears to be what happened here.  (Those who are interested in the law and norms surrounding decisions not to identify people who aren’t being charged might be interested in this essay by Ryan Goodman on unindicted coconspirators.)

I am less interested in the decision to redact than I am the decision not to prosecute.  Although much of the text is redacted, it appears that the decision not to bring charges against Don Jr. was not a decision about weak facts or uncertain law.  Instead it appears to have been a policy decision—specifically a decision that the crime was not serious enough to warrant prosecution.  Here is the key passage:

Applying the Principles of Federal Prosecution, however, the Office determined that prosecution of this potential violation was not warranted. Those Principles instruct prosecutors to consider, among other things, the nature and seriousness of the offense, the person's culpability in connection with the offense, and the probable sentence to be imposed if the prosecution is successful. Justice Manual 9-27.230.

I don’t disagree with the decision not to prosecute Don Jr.  The Computer Fraud and Abuse Act is, in my opinion, an overly broad statute.  That is to say, I believe that the text of the statute sweeps in far more conduct than it ought to.  In particular, it includes unauthorized password sharing.  So if, for example, I were to allow my friend to use my Netflix password so that she did not have to pay for her own, separate account, I have likely committed a crime under the Computer Fraud and Abuse Act.

The CFAA is far from the only overly broad criminal statute on the books.  There are plenty of overly broad federal and state crimes.  We allow our representatives to pass these laws because we rely on the good judgment of prosecutors not to bring charges in all cases that fit within the language of these statutes.  But there are many problems with this state of affairs.  For one thing, we rarely know what criteria prosecutors use in deciding when not to bring charges.  So long as we do not know what criteria prosecutors are using, we do not know the real content of the criminal law.  For another thing, there is no requirement that prosecutors adopt generally applicable criteria to decline prosecutions or that they use the same criteria in all cases.  To the extent that declination decisions are made on an ad hoc basis, people are not getting equal treatment, and prosecutors may make prosecution decisions for arbitrary or discriminatory reasons.

Finally, the fact that we allow prosecutors to decline prosecution under overly broad statutes doesn’t mean that they are under any obligation not to bring charges in trivial cases.  There are plenty of cases in which prosecutors have decided to file charges against defendants whose conduct does not resemble harm that the legislature was trying to prevent when it enacted a criminal law.  But, as I argue in a forthcoming paper, the modern embrace of textualism leaves defendants with essentially no recourse if their behavior fits within the incredibly broad statutory language.

While I agree with the decision not to charge Don Jr., I wish that the report had redacted less of the analysis associated with the declination decision.  We do not know whether the Department of Justice has adopted an internal policy not to charge all defendants in these sorts of cases, or whether this was a one-off decision based on the unique facts and circumstances surrounding this case.  What is more, because most of the analysis is redacted, we do not have a statement from a respected group of federal lawyers – including not only Robert Mueller, but also Deputy Solicitor General Michael Dreeben – explaining why such a case is so trivial that it does not warrant prosecution.  Such a statement could have potentially helped defendants who have been threatened with charges for similar conduct.  It also could have prompted a national conversation about whether we should rewrite the Computer Fraud and Abuse Act.

About that New York Times cartoon

Hypo: A cartoonist wants to make the point that Vladimir Putin and Russia are dictating U.S. policy and that President Trump is following without thought or consideration and without knowing where he is going. The cartoonist depicts Putin as a guide dog, leading a sightless Trump; the guide dog has Putin's face and a collar with the Russian flag, while Trump is shown as a sightless man with dark glasses, with the guide dog on a lead taking him he knows not where.

I presume the meaning of that cartoon would be clear and that such a cartoon would be ok. If so, I do not understand why this cartoon becomes filled with anti-Semitic tropes when making what I believe to be the same point about Netanyahu and Israel. And any answer must not reduce to a prohibition on criticizing Israel in the same terms and using the same tools, including cartoons and satire, that would be used without objection against other nations and other political leaders.

What is anti-Semitic about this cartoon? (FWIW, my wife--who is more likely to find something anti-Semitic than I am and was less forgiving of Rep. Ilhan Omar than I was--is similarly confused).

   • Is it depicting a Jewish person as an animal, particularly a dog?  Anti-Semitic literature and cartoons (both old-fashioned European and modern Islamic) have depicted and described Jews as animals. But there also is a long history of depicting political leaders as animals. I interpret the picture depicting Netanyahu as the leader of a nation rather than as a Jew or a representation of Jews and the Star of David as the central piece of the Flag of Israel rather than as a Jewish symbol. Is my interpretation wrong? Can Israeli (or all Jewish) leaders not be depicted as animals because of the historic link to anti-Semitism?

   • Is it having Trump dressed like an Orthodox Jew, wearing a yarmulke, black suit, and white shirt? I find that piece out of step with what (I believe) the cartoon is trying to show. Unless Trump represents not only the U.S. but also American Jewry (or a segment of American Jewry). Either way, I do not see why this is anti-Semitic.

   • Is it the overall message that Israel dictates U.S. policy, recalling the ideas of secret-and-nefarious Jewish influence? That reduces to an argument that a common political critique--one country or one leader unduly influencing another country or leader--cannot be made against Israel or Israeli leaders. Or that criticism of Israel must be even-handed and reasoned ("Israel is wielding undue influence over U.S. policy, as do other nations") to avoid the charge of treating Israel differently because it is a Jewish State. Which precludes political cartoons criticizing Israel or Israeli leaders, as the "art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided."

I end with this: Describe a political cartoon making the criticism discussed at the top of the post--Netanyahu and Israel are dictating policy or action to a blindly following Trump--that would not be anti-Semitic.

President Trump meets the Speech or Debate Clause

With this complaint seeking to enjoin a subpoena directed towards the Trump Organization's accounting firm. The pleading tries to argue that there is no legitimate legislative purpose behind the subpoena, because "oversight" is not, in the vacuum, legitimate legislative activity. I cannot believe a court would be anything but highly deferential of a congressional committee's determination of what is within its legislative jurisdiction. Plus, Trump's argument basically amounts to "this subpoena is not legitimate because there are too many subpoenas," such that Congress loses the power of oversight when the President engages in too much misconduct.

SCOTUS argument recap: Too many metaphors

My SCOTUSBlog recap of Wednesday's argument in McDonough v. Smith is now up. This was the most metaphorical argument I have read, with everyone returning to heads spinning and constitutional rights swimming to and from conclusions (this all seemed to appeal to Justice Gorsuch).

It appears that the petitioner is going to win and that the Court will find the § 1983 claim timely because filed within three years of the favorable termination of criminal proceedings. Counsel for respondent had a rough time. He declined to dispute Justice Ginsburg's contention that the claim is one for procedural (rather than substantive) due process, triggering a suggestion from Justice Sotomayor that he had given the game away. And he received an avalanche of questions--including from the Chief and Justice Kavanaugh--showing sympathy for the argument that favorable termination should be required for policy reasons of avoiding collapse and confusion between criminal and civil proceedings.

The real question is going to be how the Court gets there--whether by focusing on the elements of a § 1983 claim (as the United States urges) or at the level of judicial policy (as petitioner urges). And what happens on remand, where the government argues that, while timely, the claim is barred by prosecutorial immunity.

"profane past participle form of a well-known word of profanity"

Anyone else find absurd the Court's refusal to use or allow the use of profanity in a case that is all about profanity and the ridiculous (if clever) work-around the government's lawyer found? Melville Nimmer rolls over in his grave.

Judicial departmentalism and the rule of law

President Trump has made two recent moves that some are labeling threats to the rule of law: 1) DOJ (at White House urging) declining to defend the Affordable Care Act and 2) Trump instructing the head of ICE to deny entry at the border and to disregard court orders to stop denying entry and promising to pardon officials held in contempt for disregarding court orders. Judicial departmentalism--under which the executive may reach independent constitutional conclusions and act on them, but must obey court orders--looks at these differently.

The first is constitutionally permissible, if politically fraught. From the premise that the executive can reach independent constitutional determinations it follows that the executive can make litigation choices consistent with those determinations, including declining to defend laws. DOJ guidelines on when to decline are just that--prudential guidelines for making controversial choices and avoiding defeat in court, but not constitutionally compelled and not inconsistent with an idealized rule of law.

The second is impermissible, as the President and the rest of the executive branch cannot disregard court orders that bind them or refuse to enforce court orders binding others. The promise to pardon any contempt convictions is inconsistent with that obligation and perhaps with due process. While troubling, this move reflects Trump's limited understanding of how law and judicial processes work. It would be a long way before any federal official who did what Trump suggested would be convicted of criminal contempt. So the pardon power would not be useful if any official did as Trump urged (and reports are that ICE supervisors immediately told officers not to do as Trump suggested).

Your [Office holder]

President Trump likes to refer to himself as "Your President," as in "This is outrageous harassment of Your President by the Democrats." Over the weekend, speaking to a group of Jewish Republicans, he referred to Benjamin Netanyahu as "Your Prime Minister."

Has any previous President used this framing? It sounds new to me. It also has a ring of monarchism or authoritarianism--"Your Majesty," "Your King," "Your Dear Leader."