PrawfsBlawg

States can pirate and plunder copyrighted material all they want

So said the Court in Allen v. Cooper, holding that states cannot be sued for copyright violations. Congress cannot abrogate under its Article I powers other than Bankruptcy Clause, which has "good-for-one-clause" support and the copyright act is not congruent-and-proportional because it reaches all infringements, not only intentional infringements for which states fail to provide adequate remedies. My SCOTUSBlog analysis is here. I got this one wrong after argument and need to stop making predictions based on questioning. I went lighter on the pirate puns because the Justices did it for me.

Some additional points to draw out:

Justice Kagan writes for a clear six (herself, the Chief, Alito, Sotomayor, Gorsuch, Kavanaugh). Justice Thomas writes an opinion concurring in part and concurring in the judgment. Justice Breyer (joined by Justice Ginsburg) writes an opinion concurring in the judgment. But the labels on the separate opinions are confusing. 

Thomas labels his opinion  "concurring in part and concurring in the judgment," while saying in the first paragraph that he "cannot join the Court’s opinion in its entirety."

A concurrence in the judgment usually means agreement with the result but not the legal analysis leading to the opinion. A concurrence means, in this context, that the author joins the opinion except for a few legal points that do not affect the majority's reasoning and path to the judgment.

Thomas identifies three points of disagreement and pieces with which he does not join: 1) The standard for stare decisis (the majority demands a special justification, while Thomas believes precedent can be overruled if is demonstrably erroneous), although everyone agrees that controlling precedent should not be overruled under either standard; 2) the majority's advice to Congress about how it can enact a valid abrogation, which is dicta; and 3) whether copyrights are property for due process purposes, a point the parties stipulate in this case. None of these points affected how the majority reached its conclusion. It thus makes no sense to label this a concurrence in the judgment; Thomas joined (or appears to have joined) all the parts of the opinion that led to the judgment. This should be a concurring opinion, with Thomas providing a seventh vote for the majority.

Breyer labeling his opinion as concurring in the judgment seems strange for a different reason. He agrees that Florida Prepaid resolves the case, although he disagrees with the Court's sovereign-immunity doctrine (for reasons described in his dissents in several of those cases, which he string cites). And writing on a clean slate, he believes abrogation is proper. But the majority opinion resolves the case as Breyer believes it must be resolved--applying Florida Prepaid. It thus seems the appropriate approach would have been to join the Kagan opinion but to write the opinion he did as a concurring opinion (not concurring in the judgment). It seems odd to concur in the judgment but not provide an alternative explanation or analysis for that judgment beyond "what the majority said, with which I disagree but with which I am stuck."

This seems like a half-measure version of Justices Brennan and Marshall in death-penalty cases. They dissented from every summary disposition and cert. denial on the grounds that capital punishment violates the Eighth Amendment, refusing to follow established precedent and insisting the case should come out the other way. Breyer wants to follow precedent, even precedent he sees as wrong. But that means he agrees with the majority's analysis applying controlling precedent, even if he would prefer to reject that precedent.

So at the end of the day, this is a 9-0 case--everyone agreeing that the statute is invalid in light of Florida Prepaid and three Justices expressing different views about the doctrine or pieces of the majority's analysis.

Finally, during SCOTUSBlog's live blog of opinions, Tom Goldstein identified a "generational divide" among the Court's liberals. The old guard of Ginsburg and Breyer--who were on the Court and dissented when this abominable line of precedent developed--continue to reject the doctrine. The new guard of Sotomayor and Kagan (who wrote the opinion) accept the current legal regime as correct. It is an interesting idea. Although query whether they regard it as correct as much as they recognize they are stuck with it and do not have the skin in the game to point to past dissents, as Breyer does.

Acting President Who?

This post is a lark, inspired by a question from my daughter, a question from a colleague, and general paranoia among liberals that President Trump will cancel or undermine the election so he can remain in office in 2021.

Whether the election can happen and how is a genuine concern given coronavirus. But there is no single "election;" there is a series of 51 simultaneous elections in 50 states and D.C., and it is unlikely Trump at his most nefarious can stop alll. Nevertheless, assume the worst-case scenario of no election in any state this fall. The possible results are infinite.

Let's have some fun.

Trump's term as President (and Pence's as VP) end at noon on January 20, 2021. This is non-negotiable. The failure to hold elections means there is "neither a President nor Vice President" due to "failure to qualify," putting us into the Presidential Succession Act.

Acting President Pelosi. The Speaker of the House is first in the statutory line, unconstitutionally so in the eyes of many and unwisely so as a policy matter in the eyes of most. But there is a problem: If there is no election in November, it will not affect only the President; presumably states would be unable to hold House elections. There thus would be no House come January 3, because no House members would have been elected.  If there is no House, there can be no Speaker. If there is no Speaker, the President pro tempore of the Senate becomes acting president. Meaning:

Acting President Patrick Leahy. The Senate is a continuing body, with roughly 2/3 of the body returning in the new Congress. Thirty-five Senate seats are up in 2020; if there are no elections, those 35 seats will not be filled. Thus, the Senate in the 117th Congress in January 2021 will consist of 65 returning Senators. The breakdown of that rump is 33 Democrats, 2 Independents who caucus with the Democrats, and 30 Republicans. The President pro tem is the senior-most member of the chamber majority--Patrick Leahy of Vermont. But:

Acting President Grassley. In 46 states, the legislature can empower the Governor to make a temporary appointment to a Senate vacancy, pending an election at a future point (timing varies by state). Three of the four (OK, OR, RI) that do not allow temporary appointments have a Senate seat up this year. Thus, of the 35 contested seats, appointments could be made for 32 of them; of those 32, 13 are in states with a Democratic governor and 19 are in states with a Republican governor. Three (Arizona, North Carolina, and Wyoming) require the appointee to be of the same party as the vacating Senator; North Carolina's Democratic governor would have to appoint a Republican to the seat vacated by Republican Thom Tillis. This means 12 Democratic appointees and 20 Republican appointees, creating a 50-47 Republican Senate. The President pro tem (as in the current Senate) would be Chuck Grassley of Iowa. But:

Acting President Mike Pompeo. Five of the states with contested seats that would need an appointment (Montana, New Hampshire, North Carolina, Texas, and West Virginia) have 2020 gubernatorial races. If the election for President, House, and Senate does not happen, neither can the election for governor. Absent a governor and lieutenant governor, succession would depend on the weeds of the organization of state government--is either house of the legislature a continuing body that would have a leader who could serve as governor? If not, no appointment is possible in those five states. This means loss of four Republican appointees (by Republican governors in New Hampshire, Texas, and West Virginia and cross-party appointment by a Democratic governor in North Carolina) and one Democratic appointee (by a Democratic governor in Montana). That leaves us with a 46-46 Senate. Absent some sort of compromise, there would be no President pro tempore of the Senate. The succession law takes us into the cabinet, beginning with the secretary of state. Unless:

Acting President Grassley. Suppose that anticipating these gaps, the Senators in the three states guaranteed a same-party replacement resign in December 2020 so the governor can make the appointment. Those would be Republicans in NC, TX, and WV. They would remain in those seats through January 3, 2021, making it a 49-46 Republican Senate that chooses Grassley as President pro tem, who becomes acting president. Or:

Acting Prsident Grassley. Alternatively, the terms for those five governors end after January 3, when the new Congress begins and the Senate vacancy becomes clear. Each thus could make an appointment then, before his term expires, adding four Republicans and one Democrat to a 50-47 Republican Senate. Unless:

President Trump. The Constitution empowers each state to appoint electors "in such manner as the legislature thereof may direct." Every state has directed electors be chosen by popular election. But facing such an emergency, states could change their laws to provide a different selection mechanism--legislative or executive appointment. A state presumably will enact a law changing its selection method only if both chambers and the governor are from the same party. Twenty-two states, for 219 electoral votes, have unified Republican control and will appoint electors to vote for Trump; 15 states + D.C., for 195 electoral votes, have unified Democratic control and will appoint electors to vote for Biden. Twelves states, for 124 electoral votes, have a Republican-controlled legislature and Democratic governor or vice versa, and one state has a divided legislature. Those states may be unable to agree on a selection method--the legislature will not give the governor of an opposing party the appointment power; the governor will veto any attempt to give the power to the legislature. So the electoral college votes for Trump over Biden, 219-195 (which Trump will call the greatest landslide in U.S. history). The Twelfth Amendment provides that the winner must obtain a majority of the whole number of electors appointed. Because those 13 states did not appoint electors (because there was no election and no alternative appointment mechanism), the whole number is 414; 219 constitutes a majority and Trump is reelected. Alternatively:

President Trump. Those 13 states, not wanting to be left out, could compromise and create a mechanism to split their electoral votes. Trump gets 281 electoral votes (219 + half of 124) while Biden gets 257 (195 + half of 124). Trump is reelected. Unless:

President Trump. The electoral votes must be opened and counted before a joint session of the House and Senate, presided over by the President of the Senate (i.e., the Vice President).  Because there was no election, however, there is no House. Is the Twelfth Amendment satisfied if only the Senate is present for the count? If yes, Trump is president. The answer to that question may depend on the composition of the Senate (see above). If no:

Acting President Grassley or Pompeo. If the votes cannot be properly counted, no one will have qualified as President or Vice President. We are back into the statute. There still is no speaker. Maybe there is President pro tem, depending on the composition of the Senate (see above). Or we are back in the cabinet. Unless:

President Trump or Biden? If coronavirus is the source of election interference, the answer may turn on how many states--and of what partisan composition--will take steps to enable meaningful, simple, and manageable vote-by-mail. The easy partisan answer is that Democratic-controlled states are more inclined to expand the franchise than Republican-controlled states; easy vote-by-mail is an expansion (enabling) of the franchise in this context. So the answer may be depend on who is willing and able to create better vote-by-mail systems.

I will close by saying this is a parlor game because I am bored right now. I do not expect Trump to interfere with the election. I do expect life to be normal enough come November to hold an election or that states will create mechanisms to handle it (one side effect of the current situation is the number of governors flexing their muscles in the absence of federal action). I believe there will be the usual transition of government power come January.

But blogs exist for these kind of parlor games. Feel free to weigh in.

Continuity of Government in a time of Cholera

Norm Ornstein writes in The Atlantic about the need for Congress to create some contingency plans in case the bodies are unable to meet or, worse, if substantial numbers of members become sick or die in the current pandemic. I had the privilege of doing some work with Norm on continuity issues following 9/11, with the Continuity of Government Commission that he chaired and several congressional hearings, as well as writing about this in several of my early articles. Then, it was a single catastrophic bomb (such as Flight 93) destroying Congress as a body of people; now it is the slow burn of Covid-19. But the failure to act 20 years ago--to allow for remote sessions, action by emergency rump bodies, and temporary House appointments--looms large.

In addition, a maudlin conversation with a colleague suggests that congressional continuity may not be the only concern. The President (who, despite the Surgeon General's sycophancy, is old, overweight, and not in great health) and Vice President were exposed to the virus by one individual. Nancy Pelosi is third in line. And no way would the House confirm a new VP nominated by Pence or Trump "in an election year," citing the McConnell Rule. (House Democrats dragged their feet on Nelson Rockefeller, and those were relatively normal times).

I have said  that the West Wing is the Trump presidency--I guess this is the next season of the show.

The procedure of frivolous political defamation actions

The Donald Trump Campaign today sued the Washington Post in the District of D.C. over a June 2019 column by Greg Sargent. This follows the campaign's suit in New York state court against The New York Times. Meanwhile, Devin Nunes is up to seven lawsuits against various persons, bovines, and business entities.

This rash of lawsuits has many First Amendment advocates calling for more states and the United States to enact anti-SLAPP statutes. These suits represent the modern analogue to Southern officials' defamation campaign against northern media outlets in the 1950s and '60s. But I have been slow coming to the "anti-SLAPP is necessary" position; if the protections of New York Times were sufficient to stop the barrage 60 years ago, they should be sufficient now.

The answer comes from the latest episode of the All the Presidents Lawyers podcast. First Amendment advocate Ken (Popehat) White explains that the purpose of these lawsuits is not to win, because most of the suits are garbage under NYT and the plaintiffs and their lawyers know that. Rather, the purpose is to drag people into court and impose the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. In theory, only an anti-SLAPP law--with its attorney's fees provision and expedited dismissal--addresses that problem. The alternative (in federal court) is sanctions under FRCP 11 and attorney's fees against counsel under § 1927. But courts may be reluctant to impose sanctions against a congressman, president, presidential campaign, or other powerful and famous plaintiff--especially to award attorney's fees as a sanction, which is the way to address the financial cost to the plaintiff that the lawsuit is intended to impose. Perhaps Nunes' seven nonsense lawsuits would indicate a sufficient pattern that a judge might find attorney's fees necessary for deterrence of client and attorney. But not in the mine run of cases.

Some commentators have suggested that the availability of an anti-SLAPP statute affects litigation choices. Nunes sued Twitter (a California company) and McClatchy Newspapers (publisher of the Fresno Bee) in Virginia, which lacks a strong anti-SLAPP law, rather than California, which has one. Both courts have declined to dismiss for lack of personal jurisdiction, with analysis revealing confusion over the newly narrowed scope of general jurisdiction. Some commentators have suggested that the choice of forum (federal over state court) or the choice of parties depends on whether the federal court would apply the state's anti-SLAPP law.

But we should be more nuanced on the question of anti-SLAPP laws in federal court. I have argued that the special SLAPP motion should not apply in federal court (the position of the D.C. Circuit, in which the new Trump Campaign action was field), because FRCP 12 and 56 cover the issue. (And a 12(b)(6) dismissal, in which the court considers whether the statements as pleaded are opinion, can get the defendant out of the case quickly enough). By contrast, the SLAPP attorney's fees provision should apply in federal court. Under the "relatively unguided Erie analysis," not applying the fee provision would cause a plaintiff to choose federal over state court and the attorney's fee provision is bound up with substantive state policy concerns for protecting the free speech rights of its citizens. If the real concern is the cost of having to defend even a nonsense suit, an attorney's fee provision addresses that.

Finally, it is notable that the Trump Campaign, rather than Trump, brought these two suits. I am not sure how the campaign can claim injury from statements about Trump. One commentator suggested the Campaign sued to get the WaPo case in federal court. The Campaign is a Virginia corporation with its principal place of business in New York; Trump, the commentator implies, is a D.C. domiciliary and thus not diverse from the Post.

This returns us to Where In the World Is Donald Trump? Trump was a New York domiciliary prior to January 20, 2017. In October, he (and Melania) renounced his New York citizenship and filed a Declaration of Domicile in Palm Beach County, Fla., establishing Mar-a-Lago as their permanent residence. Trump thus appears to be a Florida citizen--he has a residence there and expressed his intent to remain. Although Trump resides in D.C., he has not manifested an intent to remain there (unless he manages to get Republicans to repeal the 22d Amendment). So it is wrong to say the case could not be in federal court were Trump the named plaintiff--it would be an action between a citizen of Florida (alone or with a citizen of New York/Virginia) and wherever the Post is.

On that point, this case offers a different procedural lesson, because plaintiff counsel screwed up the jurisdictional statement with respect to the Post. Paragraph 10 reads:

On information and belief, defendant WP Company LLC d/b/a The Washington Post is a District of Columbia limited liability company with its principal place of business in Washington, D.C.

An LLC is a citizen of every state in which one its members is a citizen. So identifying an LLC as a party cannot establish jurisdiction because the LLC has no independent citizenship; you have to dig into the LLC's structure to identify individuals or corporations whose citizenship does not depend on someone else. Plaintiff did not bother doing that. I assume that some digging will lead to Jeff Bezos, who is a citizen of Washington state and/or some D.C. corporation. But the complaint, on its face, does not establish federal jurisdiction. And reflects the sort of bad (or disinterested) procedural lawyering I warn my students about. Curious if the Post will raise that or move on, knowing what jurisdictional discovery would reveal about its structure.

YouTube not a state actor (Updated)

When SCOTUS decided Halleck last term and held that a private company managing public-access cable channels is not a state actor, it was obvious that this meant online platforms such as YouTube or Twitter were not state actors. And so the Ninth Circuit held on Wednesday in PragerU v. Google, a challenge to YouTube policies restricting or demonetizing certain videos. The court rejected the argument that YouTube performed a traditional-and-exclusive public function in managing a speech forum (the argument rejected in Halleck) or that YouTube's public declaration that it is committed to free expression changes its private nature.

This was easier than Halleck. There was something to the position that Justice Sotomayor took in her Halleck dissent that it was a delegation case rather than a public-function case--the government took on a responsibility then delegated it to a private entity. YouTube is an electronic version of the private comedy club discussed in Halleck.

This part of the opinion ended on an interesting point, telling everyone, in essence, to calm the f*&^ down:

Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.

Time for Congress to Codify Bivens?

Bivens and its implication of a remedy to sue officers directly under provisions of the U.S. Constitution are on life support (see Howard's post). After Hernandez, is Congress ready yet to codify Bivens?

It’s a gross understatement to say that I’m no legislative lawyer. Nonetheless, here’s a quick draft based on the language of 42 U.S.C. § 1983:

Unless otherwise expressly provided by statute, every person who, under color of any statute, regulation, order, custom, or usage, of the United States government, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of the United States, or at its territorial borders, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in 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. The availability of alternative remedies shall not preclude relief under this provision.

In any action to enforce the provisions of this section, the court may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.

For purposes of this section, “person” includes any natural person.

* * *

It would seem desirable too for any legislation to insist on a court first addressing the issue of whether there was a constitutional violation before reaching the question of any officer immunity. And while we're dreaming perhaps the bill could address the widespread dissatisfaction with current qualified immunity doctrine. Perhaps our commentariat can propose suitable language.

As for political realities, Howard notes conservative distaste for Bivens actions, but I can easily see federal employees unions being equally testy about the prospect of civil liability for their abuses. My sense is that conservative opposition principally originates from two places: (i) institutional concerns about competency for implying that right to sue, which a statutorily enacted right to sue addresses; and (ii) balancing security over individual liberty in security sensitive functions, including external relations. I could imagine compromise legislation conservatives could accept if they had carve outs.

What interesting coalitions could emerge to support this legislation? In 1946, the U.S. government felt enough public pressure to enact the Federal Tort Claims Act to waive federal sovereign immunity. Short of a bomber crashing into a skyscraper or citizens deluging Congress with private bills for wrongs suffered at the hands of federal officials, what would actually get Congress to address this problem?

P.S. I recognize the comparison to the FTCA and waivers of federal sovereign immunity is not on all fours with suits against officers and the creation of a federal statutory right to sue them for their actions, but it seems less remote than the circumstances motivating the enactment of 1983.

Bivens closer to death (and Thomas would kill it)

In one of the (unfortunately) least surprising decisions of the Term, SCOTUS held Tuesday in Hernandez v. Mesa that a Bivens claim was not available against a border-patrol agent who shot a Mexican national standing on the Mexico side of the border.

Justice Alito's opinion for five adopts the most restrictive view of Bivens, defining a new context to include virtually any identifiable factual distinction (here, the fact that the plaintiff was injured outside the U.S.), despite the right (Fourth and Fifth Amendment) and basic facts (excessive force by law enforcement standing on U.S. soil) being the same. Justice Thomas, joined by Justice Gorsuch, goes bigger--having cabined Bivens scope and limited its precedential value, the Court should "abandon the doctrine altogether." Justice Ginsburg wrote the dissent for Breyer, Sotomayor, and Kagan.

One notable point of departure between majority and dissent is how each reads Abbasi. The majority reads it as the latest in a 40-year line of cases rejecting Bivens claims, reaffirming the narrowness of past factual contexts and the newness (and thus inappropriateness of a Bivens suit) in other contexts.. The dissent emphasizes that Abbasi, while rejecting a Bivens action against high-level policymaking officials for national-security policy choices, "cautioned" against reading it to eliminate or limit core Bivens claims against rank-and-file law enforcement officers for unreasonable seizures.

If any case not on all factual fours with Bivens repesents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings. The "special factors" analysis will come around to congressional failure to authorize such a cause of action by pointing to § 1983 and the fact that it is limited to state (not federal) officials and plaintiffs within in the United States; that congressional failure will require judicial hesitation. The dissent's response--Congress enacted § 1983 in the middle of Reconstruction with a specific concern in mind and was not thinking about federal officials shooting people across borders--does not sway the rest of the Court. This factor always comes to conflicting views of what to do with congressional silence: The majority reads inaction as congressional intent not to reach the situation, while the dissent reads it as leaving the situation to Bivens (lest it create a situation in which it is "damages or nothing").

This decision is unsurprising, as conservatives have long hated Bivens. On the other hand, conservatives increasingly resort to the courts and constitutional litigation. What happens when conservative groups want to challenge ATF agents raiding their compounds?

The Fourth Vesting Clause and Explicitly Authorized Delegation

Beyond the cognate Article I, II, and III vesting clauses that parcel sovereignty into legislative, executive, and judicial powers, there is a fourth “vesting” clause that uses the language of “vest” to allow the grant of power to another branch of government. It is the “Excepting Clause,” or the excepting provision of the Appointments Clause. It is instructive for what it allows and how it allows it.

“But the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (Art. II, § 2, cl. 2, emphasis added.)

As far as I’m aware, it’s the sole clause in the Constitution to explicitly contemplate horizontal delegation of power, by which I mean legislative reallocation of initially granted authority to another branch. The Take Care Clause contemplates vertical subdelegation within the executive branch.

How is the delegation allowed? Initially, Article II grants the nomination and appointment power to the President upon the qualification that the Senate provides its advice and consent. The Senate and House acting together, however, can opt out of that default regime for inferior officers through ordinary legislation.

The policy basis for the delegation is convenience in light of the anticipated possibility of numerous officers requiring appointment. Notwithstanding that important value, the scope of authorized delegation is only a cabined one. The Clause authorizes only delegation of a portion of the appointment power—for inferior officers only—and only to particular recipients of delegated power, i.e. the Courts, in the Heads of (executive) Departments, or in the President alone. Finally, delegation ends formal congressional involvement in the appointment, at least until the legislative grant of appointing authority is repealed.

This instance of explicitly authorized delegation is instructive in at least two ways:

1. It is evidence the Framers knew how to authorize delegation when they wanted to, and when they did, the scope of the delegation was authorized only limitedly.
2. It recognizes that delegation is never just a horizontal choice. The Clause indicated concern over the anticipated recipients of the delegated power who were clearly identified too, recognizing delegation as a vector with "x" and "y" components. Inter-branch delegation is horizontal (from one branch to another, e.g. Article I to Article II) but also vertical in that Congress grants the power with a designated level of officer within the branch, e.g. President v. Attorney General. That anchoring of delegated functions more remotely from the President within the executive branch anticipated the modern trend toward presidential administration of power.

Of course, the Excepting Clause by its terms doesn't say anything about delegation of rulemaking authority and need not be read to disallow delegation of rulemaking. Those who eschew formalism can certainly resort to many functionalist, pragmatic justifications for delegation. Those, however, like myself, who find textualism and formalism persuasive should consider the existence of a fourth vesting clause as textual evidence that the Founders knew how to authorize and limit delegation when they intended to.

The Trump Impeachment and Bad News for Federal Judges

The “Rules of Proceedings” Clause grants the Senate the power to frame the rules of its proceedings. And the impeachment trial clause specifies that the Senate has the "sole power to try all impeachments." "Sole" textually commits the impeachment trial power to the Senate, and "try" is a word that the Supreme Court claims, ironically enough, lacks any judicially discoverable and manageable standards. In Walter Nixon, Chief Justice Rehnquist enlisted fainthearted originalist votes to conclude there was a lack of discoverable standards to allow judicial review of Nixon's impeachment. Justices Scalia and Thomas joined the majority in consulting a 1971 Webster's dictionary to claim, due to a "variety of definitions" in conflict with ratification era dictionaries, ambiguity in the meaning of the word "try." Thus, the case was a political question unsuitable for judicial review. Of course, in the Seventh Amendment context, the Court regularly decides what a jury trial entails by looking to English common law at the time of ratification.

Walter Nixon's holding roped off the Senate's impeachment trial process from any judicial review. Effectively, it announced, to quote Justice Souter, "an unreviewable discretion in the Senate to ignore completely the constitutional direction to 'try' impeachment cases." Now, post Walter Nixon, we have just witnessed the Senate "trying" a case without any witnesses. That absence of witnesses (prosecution or otherwise) did not prejudice defendant Trump. Had he actually been injured rather than helped by the Senate majority, Trump might have attempted judicial review only to be confronted with Walter Nixon.

But Walter Nixon together with the new "Trump v. House Managers" no-witness precedent are swords that can cut offensively as well as defensively. One potential proposition from Trump that could serve as precedent is that the Senate need not allow any witnesses at any impeachment trial. What if a future accused wants defense witnesses yet the Senate majority finds no constitutional duty to hear from them in order to "try" an accused and instead it elects to convict on the basis of a "coin toss" or its view the accused is a really "bad guy," to invoke Souter's hypotheticals? And what if the impeachment target is not a President with comparatively greater legal resources and political allies, but a judge?

Consider that judicial impeachments are lower visibility events than presidential impeachments with less fanfare; politically, federal judges have a different relationship with senators than a President, as head of a party, enjoys; the resolution of judicial impeachments is relatively fast, entailing less opportunity cost for Congress, especially with subdelegation of evidence gathering functions under Senate Impeachment Rule XI; and judges are impeachable for whatever constitutes not "good behavior," which might be conceived as a more specific and higher Article III standard for appropriate judicial behavior—not simply a shorthand cross-reference to the very bad behavior embodied in Article II grounds as "treason, bribery and other high crimes and misdemeanors."

But isn't the 2/3 supermajority vote to convict a safeguard against a no-defense-witness impeachment trial? Institutionally, individual judicial targets have significantly fewer legal resources at the ready for their defense than incumbent Presidents. It's no wonder that threats of impeachment against federal judges frequently precipitate resignations in impeachment's shadow; impeachment's in terrorem effect reaches many more federal judges than those formally impeached and convicted.

Of course, we could try and "read" the Trump nonjudicial precedent more limitedly, i.e. the Senate can deny the House prosecution, but not a defendant, all witnesses. It's unclear, though, why that would be the case where the Senate holds the judicially unreviewable "sole power to try all impeachments." Told by the Court that the Senate can do what it wants when trying impeachments, we should be unsurprised when it does just that.

Will the Seila Case Provoke Bold Moves from the Roberts Court?

Originalist arguments may provoke bold moves from the Roberts Court this Term. In Seila Law LLC v. Consumer Financial Protection Bureau, the Court will decide whether an independent Consumer Financial Protection Bureau violates the Constitution. Leading originalist scholars have challenged the independent structures incorporated by the Bureau and a slew of other agencies as unconstitutional novelties. These agencies are independent, and arguably trammel on the President’s exercise of “the executive power” under Article II of the Constitution, because the President cannot remove their heads at will.

The originalist critique of independent agencies is no longer purely academic, thanks to a 2008 dissent that Justice Kavanaugh wrote as a judge on the D.C. Circuit. As he noted, the leading Supreme Court precedent supporting independent agencies, Humphrey’s Executor, has “long been criticized . . . as inconsistent with the text of the Constitution and the understanding of the text that largely prevailed from 1789 through 1935.” Free Enterprise Fund v. PCAOB, 537 U.S. 667, 694 (D.C. Cir. 2008). Then-Judge Kavanaugh conceded that he was unable to set aside Humphrey’s Executor, as it was “binding precedent.” Now that Kavanaugh is an Associate Justice of the Supreme Court, this constraint no longer applies.

Originalist arguments raise serious questions about the constitutionality of the Consumer Financial Protection Bureau and a multitude of other independent agencies. I will be part of the discussion of Seila and agency independence in the ABA’s upcoming issue of Administrative and Regulatory Law News. My contribution, Alexander Hamilton’s Independent Agency, will highlight the independent structure of an obscure, founding-era agency known as the Sinking Fund Commission. (For more background on the Commission, please see my working paper and earlier post.) In the article for the ABA, I conclude that the independent structures of the Consumer Financial Protection Bureau and the Federal Trade Commission are much closer to founding-era practice than previously thought.

It will be interesting to see how these issues play out at oral argument on March 3 and in the Court’s ultimate resolution of the Seila case. Given the complexity of the issues and the magnitude of the case, I suspect that Seila will be one of the Court’s end-of-term blockbusters this June. 

The Administrative Law Dispute at the Heart of the Census and DACA Cases

It is an exciting time to study administrative law. The pillars of this field — cases such as Chevron, Humphrey’s Executor, and Whitman v. American Trucking — seem likely to be up for grabs at the Supreme Court. And the Court’s resolution of the controversial census and DACA cases has turned (or will likely turn) on applications of the Administrative Procedure Act’s “arbitrary and capricious” standard of review. Both cases involve decisions of enormous importance to the Trump Administration. What you may not know is that the arbitrary and capricious standard of review is also up for grabs. As explained in my recent paper (written with Barry Sullivan and forthcoming in the Connecticut Law Review), the Supreme Court has never formed a stable majority on the question of how much deference courts owe the executive branch under this standard of review. Should courts find a decision arbitrary and capricious where an officer implements the president’s preferred policies but omits expert analysis of relevant data? Or should courts ease up on analytical requirements and provide greater latitude for policies implemented at the behest of an elected president?

Unfortunately, the Court’s 2019 decision in Department of Commerce v. New York sends mixed messages on these questions. The Secretary of Commerce (Wilbur Ross)’s controversial decision to add a citizenship question to the 2020 census drew shifting coalitions of five Justices. Chief Justice Roberts provided the deciding vote and wrote the opinion for each coalition, and Justices Alito, Gorsuch, Kavanaugh, and Thomas joined the part of the Chief Justice’s opinion that approved the Secretary’s general analysis. The Chief Justice granted great deference when he determined that the Secretary’s explanation need only lie “within the bounds of reasoned decisionmaking.” It was reasonable for Secretary Ross to conclude “that reinstating a citizenship question was worth the risk of a potentially lower response rate,” even though the Secretary bypassed routine testing designed to provide additional empirical evidence about response rates.

Had the Court resolved the case on this first issue alone, its decision may have signaled a shift to a more deferential version of arbitrary and capricious review. However, procedural irregularities led the Chief Justice to switch sides and invalidate the Secretary’s decision on grounds of pretext. Justices Breyer, Ginsburg, Kagan, and Sotomayor joined the Chief Justice’s opinion on this issue. Roberts’s disapproval focused on the “significant mismatch between the decision the Secretary made and the rationale he provided.” While the finding of pretext turned on “unusual circumstances,” none of the opinions expressly discussed late-breaking evidence of a clandestine study conducted by Dr. Thomas Hofeller, a redistricting specialist. This evidence raises the possibility that Secretary Ross was aware of Hofeller’s findings (that a citizenship question would benefit “Republicans and Non-Hispanic Whites”) and that the Secretary declined routine testing to avoid collecting public evidence on these points. The Chief Justice’s finding of pretext implicitly addressed this concern, but it failed to articulate a manageable standard for future cases.  

The Court missed an important opportunity to mitigate similar concerns in future cases. Rather than a finding of pretext “good for this day” only, the Court might have achieved the same result by finding the Secretary’s analytical shortcuts arbitrary and capricious. The initial and more deferential standard of review applied by Chief Justice Roberts glossed over the fact that the Secretary chose to base his official decision on limited evidence about response rates when he bypassed testing routinely employed for new census questions. A less deferential approach would reflect Justice Scalia’s earlier suggestion, in FCC v. Fox I, that “failure to adduce empirical data that can readily be obtained” might render a policy change arbitrary and capricious. It would also align with Justice Kennedy’s concurrence in the same case. Justice Kennedy emphasized the importance of agency decisions that are “explained in light of available data,” “informed by the agency’s experience and expertise,” and “justified by neutral principles and a reasoned explanation.”

It is unclear whether the Court will have a chance to clarify the arbitrary and capricious standard of review when ruling on the Trump Administration’s decision to rescind the DACA (or Deferred Action for Childhood Arrivals) program. While this case is extremely important, it involves a distinct set of humanitarian policy concerns, including reliance interests. Broader questions about the arbitrary and capricious standard of review seem likely to remain unanswered in 2020.

On Presidential Accountability and Running Out the Clock

There are really very few opportunities to meaningfully hold a modern American president personally accountable when his party stands behind him.

1. A sitting President can't be criminally prosecuted, at least according to the executive branch and notable executive branch alumni.

2. Civilly, the President is absolutely immune, even after leaving office, for official actions taken while President.

3. Electorally, since the 22nd Amendment, a President stands for reelection only once, but typically has enormous advantages as incumbent and head of a major political party. If the President prioritizes self-preservation over party, the subsequent political fallout for party is a non-check.

4. Then, there’s removal from office through impeachment and conviction.

That bicameral "hundred-ton-gun" is difficult to bring to bear against a President. And Congress has terrible aim. Congress: 0, POTUS: 2. And, no, we shouldn't count Nixon's in terrorem resignation. My inquiry is interested in holding a president accountable even when his party stands behind him. The GOP of Nixon's era was unwilling to support him. As the Post reported, "Mr. Nixon said he decided he must resign when he concluded that he no longer had 'a strong enough political base in the Congress' to make it possible for him to complete his term of office."

The slowness of impeachment and the 4-year-term clock is an acute problem.

Trump's trial team has pressed the procedural argument that the House should have (effectively) conducted all investigation and fact development prior to the Senate trial. Of course, this process argument against witnesses and additional evidence would suffocate most impeachment efforts that involve factual disputes. If the Democratically controlled House actually decided to go back and try and gather additional evidence now by litigating House subpoenas, the ensuing presidential assertions of executive privilege and litigation would drag on for months if not years.

Thus, if a President ran out the clock on the term of office, impeachment of Presidents (but not judges) effectively becomes a dead letter. The delay would not only blunt accountability, but deny it altogether.

That outcome's absurdity suggests that:

(1) the original impeachment process cannot effectively function in cases of presidential impeachment and requires amendment, for example, by (i) very clearly empowering a presiding Chief Justice to adjudicate disputes about privilege (as a substitute for satellite pre-trial litigation), and (ii) authorizing both chambers of Congress to legislatively commit to more detailed impeachment procedure--at a time not connected with a live impeachment controversy--to lessen the problem of partisan bespoke trial process; and

(2) the other legal and political methods of holding presidents accountable, such as #1, the executive branch's self-serving view of immunity against criminal prosecution of a sitting president, should be revisited.

A constitutional amendment may be the deus ex machina of intractable governance problems, but that feels like where we are now. Pragmatism about partisanship tells me, given current political realities, Article V would never be unsuccessfully invoked to address this particular impeachment or perhaps even this President. A prospective-only amendment, however, might prove a more successful strategy, particularly if partisans could, through futurity's uncertainty, come to look at the problem impartially.

Update (Feb. 6, 2020): Senator Rick Scott (R-FL) has proposed amending the impeachment process -- definitely not the constitutional amendment to the impeachment process I was proposing and principally offered as a partisan sally following acquittal.

Thomas and Gorsuch on universal injunctions (Updated)

SCOTUS stayed pending appeal the injunction prohibiting enforcement of the Trump Administration's public-charge regulation, another example of the government seeking and the Court granting extraordinary relief to allow the administration to continue enforcing policies pending litigation where the lower court found the policies defective. Justice Gorsuch, joined by Justice Thomas, concurred in the stay, to take aim at universal injunctions (with citation to the work of Sam Bray and Michael Morley), properly defining them as injunctions protecting beyond parties rather than in geographic terms.

Unsurprisingly, I agree with Gorsuch's basic point against universal injunctions. I am not sure what it has to do with this case. Gorsuch would have granted this stay regardless of the injunction's scope. And I am sure he is waiting for the government to challenge a particularized Illinois injunction that (he acknowledges) remains in effect so he can stay that, as well.

Update: I wanted to come back to the question of whether the stay was proper. Given the make-up of the Court, it seems clear that, when the case comes to the Court on the merits, the majority will declare the policy valid. That aside, what about the stay? Where the district court granted an injunction, the question should be what will create more permanent and long-lasting chaos--staying the injunction (thus allowing enforcement of the underlying policy) or allowing the injunction to remain in effect (thus stopping enforcement of the underlying policy, allowing continuation of the primary conduct the regulation is designed to stop.

Today's order means the U.S. can deny status to certain people for the moment, although should the reg be declared invalid at the end of the day, those people could then reapply and be considered without the now-unlawful policy. Had the Court not stayed the injunction, people otherwise subject to the order could enter and/or gain status; if the order ultimately is declared valid, the government would have people in the U.S. or with status who otherwise should not have been permitted. It does not seem that the government could retroactively apply the regulation to remove presence or status already granted under the old rules. So as abhorrent as I find the policy, it seems a stay was appropriate. Where am I going wrong?

Congressional design, Senate partisanship by class, and impeachment trial politics

Post-17th Amendment, both the House and the Senate are directly elected--a change from the earlier dual constituency of state legislative election of senators. Still, important differences remain that result in intra-branch friction such as we're seeing in the impeachment process.

By design, the House would be more democratically responsive than the Senate due to its shorter terms and its method of direct election. One perceived downside was the House would be "liable to err also, from fickleness and passion." This is consistent with the apocryphal explanation that the Senate was designed to "cool" the politically responsive House as a tea saucer cooled hot tea.  The chambers’ different characters were features, not flaws, such as the requirement that the more politically accountable House “hold the purse” by originating all tax revenue measures but requiring Senate concurrence for them. Like hot and cold faucets, the chambers could deliver warm, but non-scalding (and non-freezing) water to the public.

Beyond Senate direct election and the 17th Amendment, consider an important political development on the House side that makes the House's "water" even more scalding. Aggressive gerrymandering in the House effectively allows representatives to choose their voters rather than the other way around. This bipartisan opportunity has changed over time and is far more effective now than it was at the founding. The House has very heavily gerrymandered districts (except for 1 representative states with at large districts, e.g. Wyoming, Montana, etc.) with very low rates of incumbents losing those seats. The increase in polarized House districts maintains that body's penchant for fiery politics, but it also makes the seats securely partisan. The Framers were right the House would prove hot headed, but not because the body was being responsive to what Americans in the aggregate in the several states would want. In a sense, with the new gerrymandering, the House lost some of the feature but kept the flaw - the House now is only modestly politically responsive, but still subject to fits and passions from partisanly gerrymandered, center fleeing districts.

The House-side development is not a phenomenon that occurs in isolation, however. If the House's still scalding water temperature is to be cooled, it requires the Senate to be more removed from partisanship. But today's elected Senate seats, incapable of being gerrymandered, are more competitive than House races. Consequently, senators up for reelection must be more politically responsive to their states’ voters in the run up to an election as they try to capture the median voter for their state. In the continuous body of the Senate, different Senate classes of senators (I, II, or III) will weight their responsiveness to voters depending on their proximity to election. Senators temporally closest to Election Day will, relatively speaking, be most responsive to voters in their states and the donors who facilitate their reelection. As one unidentified senator reported to political scientist Richard Fenno, “[w]e say in the Senate that we spend four years as a statesman and two years as a politician.” Those most distant to election will be able to vote their independent judgments. The basis for acting with greater independence includes beliefs that voters have short memories, that time will vindicate the wisdom of a senator's vote, or that voters back home will find subsequent action that they approve to outweigh earlier displays of independence.

Steven Levitt modeled (JSTOR access required) how senators vote, estimating the relative weights of overall voter preferences of the state electorate, supporter preferences, the national party line, and the senator’s personal ideology. His research called into doubt the median voter theorem as it found the primary determinant of a vote was a senator's ideology (63%). Importantly, though, the effect of election proximity and Senate tenure did bear out Fenno's anecdote: “[a]s elections near [i.e. votes in the election year for non-retiring senators], the weight given to overall state voter preferences doubles [from 9% to 18%], with that increase being offset by a decline in the weight placed on the party line.” In short, senators in classes I (reelection in 2024), II (reelection in 2020), and III (reelection in 2022) can be expected to vote differently.

Turning to impeachment votes to be held prior to November 2020, I've noted the Senate was selected to act as the court of impeachment because it was considered to be "sufficiently independent." But the level of independence will differ across the body given senator proximity to election. There is no legal sanction for breaking one’s impeachment trial oath to "do impartial justice according to the Constitution and laws." The only here-and-now sanction for oath breaking is the republican remedy of election. And the administering of that remedy lies in the hands of electorates back home.

So, on this account, laying impeachment law and evidence aside, it's unsurprising that Class II senators McConnell (KY, in state Trump net approval +14) or Graham (SC, Trump net approval +5) would coordinate with Trump or otherwise support a Trump acquittal; or that Collins (R-ME, Trump net approval -6) would position herself as independent; or that McSally would prove taciturn (R-AZ, Trump net approval -3); or that Jones would withhold judgment yet question whether there was enough evidence to convict (D-AL, Trump net approval +22); or that Coons would signal his approval of the case made by the House managers (D-DE, Trump net approval -15), etc.

This is not to say "it's all politics" in response to voter preferences or that all voter preferences are bad, especially if in the context of impeachment voters are demanding non-partisanship and the exercise of judgment. But it might mean Senate Classes I and III will need to be the segments of the continuing body willing to exercise "sufficient" independence.

On Disappointed Presidents

President Trump’s response to impeachment proceedings seems more defiant than regretful. The President has expressed regret in other areas, however.  He “may[]” regret his appointment of Jerome Powell as Chair of the Federal Reserve. The President may also have reason to be disappointed in Chief Justice Roberts, a Republican appointee who has publicly countered the President’s attack on the independence of federal judges. Any disappointment suffered by the President would reflect Powell’s and Roberts’ independence and ability to remain in office while making decisions contrary to the President’s wishes. The independence of administrative agencies such as the Fed has been controversial. The independence of the federal judiciary is established by Article III of the Constitution.  

Supreme Court Justices have a long history of casting independent votes that disappoint the presidents who appointed them. President Eisenhower declared Justice Brennan one of his greatest “mistakes.” A disappointed President Theodore Roosevelt complained that he “could carve out of a banana a Judge with more backbone than” Justice Holmes. Historically, Justices’ voting records in non-unanimous cases reflect a strong tradition of independence, though there is reason to think that presidents have enhanced their ability to appoint ideologically compatible Justices in recent decades. As noted by Lee Epstein and Eric Posner, we may be on the cusp of a new era in which Justices’ votes align with the parties of their appointing presidents more than ever before. It seems unlikely that the Court will ever have another Justice like John Paul Stevens, a Republican appointee who generally sided with the liberal wing of the Court, or even a more moderate Republican appointee like Justice Kennedy.

Any shift to a more political court would still depend on Chief Justice Roberts, who may have a broader commitment to the Court’s institutional independence. And perhaps Justice Gorsuch’s commitment to originalism and textualism will lead to unexpected results in certain cases. The magnitude of any change would also depend on the types of cases that the Court chooses to decide. A Term in which the Court overruled Roe v. Wade and declared vast swaths of the administrative state unconstitutional would be very different than one in which none of these things occurred. 

Notwithstanding any increase in politicized voting, presidents ultimately lack power to create vacancies that allow them to appoint new Justices to the Court. Article III’s life tenure provisions instead allow Justices to choose when they will retire. In recent decades many Justices have chosen to remain on the bench and pass up politically opportune retirements. Justice Ginsburg declined to retire when President Obama was in office, and last year Justice Thomas declined to retire during President Trump’s first term in office. (Because it is an election year, none of the Justices are likely to retire voluntarily this year.) Both of these possible retirements would have maximized Justice Ginsburg’s and Justice Thomas’s odds of being replaced by like-minded successors who would remain on the Court for many decades to come. Justices’ autonomous retirement decisions present another facet of judicial independence that one would not expect to change any time soon.

Defining a show trial

Some people are decrying-in-advance the upcoming Senate impeachment as a "show trial." At some level the term is apt. The factfinder seems to have its mind made up; the procedures in place do not seem calculated to discover the truth; and the proceeding will bear the cover of a judicial proceeding but serve as little more than a cover for the political decision of those in power.

But  think of "show trials" in the context of the Soviet Union or other totalitarian regimes, where the government uses the sheen of judicial process to purge and execute an enemy of the state, where a conviction is the pre-ordained result. This is going the opposite way--an acquittal is the pre-ordained result. The comparator is not Soviet or authoritarian show trials of ordained enemies. The comparator is state criminal proceedings against Klan members and other Southern whites charged with crimes against African-Americans (e.g., Byron De La Beckwith).

Does the term "show trial" still apply?

Securing Constitutional Change

The 22nd Amendment and its provision for presidential term limits has a neat bit of constitutional circumlocution in it to avoid “burdening” that Document with the filthy particulars of a proper noun, specifically, Harry S. Truman.  First, the Amendment articulated a general rule: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once.”

Then, the Amendment carves out an exception: “But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.” The category the exception defines has only one person within it. It never mentions Truman by name, but sure enough it applies only to him as the person who held the office of President when Congress proposed the 22nd Amendment on February 6, 1947.

Beyond this curious attention to form, this Amendment embodies pragmatic wisdom when thinking about securing future amendments. It is clear enough why Republicans would favor the 22nd Amendment after the breach of the two term so-called "tradition" with FDR and Truman's succession after FDR's death. But why would any Democrat support an amendment that term limited an incumbent Democratic President in an apparent partisan sally against FDR? To win the support of enough Democrats in Congress and the state legislatures, Truman was grandfathered. The present addressed, Democrats looked beyond that horizon to consider (i) the uncertainty of a possible future where a Republican president could potentially serve multiple terms and (ii) the wisdom of lengthy presidential tenures generally. The House and the Senate voted to pass the amendment with Democrats crossing over to join Republicans in the bicameral supermajorities.

Constitutional change requires: (1) addressing upstream political constraints of the status quo, through strategies that "buy out” incumbents whose short term political oxen would otherwise be gored, thereby making change unlikely under supermajority regimes; and (2) relying on uncertainty, such as occasionally created by futurity (or distant futurity), in order to place parties in an original position behind a veil of ignorance, at least for those changes that lack any clear substantive political valence beyond the short run. In this way, supermajority rules privilege incumbents and provide them leverage in any political bargaining, but uncertainty resulting from futurity can aid parties in thinking evenhandedly about political principles. That's not to say partisanship disappears, but this kind of strategy can peel away enough moderates on the margins to allow change to occur. As one detailed academic account explains (JSTOR subscription required), several Democrats in the House and in the Senate as well as in the state legislatures crossed over to support the amendment.

In this way, the 22nd Amendment can be seen as embodying pragmatic advice when thinking about how to secure constitutional change for what might otherwise prove political nonstarters, such as limiting and regularizing Supreme Court terms. If an amendment proposes term limiting the currently constituted Supreme Court, it's unclear why Republicans would agree. They would perceive several more 5-4 opportunities in the short run. A proposal, however, that grandfathered all existing court members while applying the limitation prospectively might be more likely to get political traction than one targeting the political status quo.

Universal consent decrees

Two U Conn students who were prosecuted and sanctioned by the university for violating the school policy against "disruptive behavior" for uttering a racial slur have filed suit in the District of Connecticut, claiming the school sanctions violate the First Amendment. (H/T: Eugene Volokh). The case should be easy as a First Amendment matter--the students seem to have shouted the slur into the ether, not directed at anyone and not accompanied by any threatening conduct.

But it is procedurally interesting, potentially complicated, and seemingly wrong. After the jump.

In 1990, U. Conn. entered a consent decree in a lawsuit brought by a then-student named Nina Wu, who was sanctioned for saying "no homos" on a board on her dorm-room door. The consent decree permanently enjoined U. Conn. from enforcing a provision of its student code "against this plaintiff or any other student." This is a universal injunction, protecting the universe of U. Conn. students (or it is at least non-particularized). I would argue the court cannot and should not issue such an injunction. The completeness of Nina Wu's remedy is unaffected what might happen to do students 30 years later--that is, students who were not born at the time of the injunction. On the other hand, U. Conn. could have entered the consent decree with Wu, then voluntarily altered its conduct and declined to enforce the provision against any other student (which is what usually happens). But this case offers a third option--U. Conn. voluntarily bound itself to non-enforcement as to non-parties as a matter of an enforceable judicial order. Can a defendant do this? Can the court do it if the defendant agrees? Can a court enforce it as it would a properly scoped injunction?

The plaintiffs frame their case, at least in part, as an attempt to enforce the consent decree. They allege in ¶ 8 that they have standing to enforce the decree because of its stated scope. But then the procedural posture makes no sense--why (and how) can a plaintiff file a new lawsuit to enforce a judgment in a different action, even if in the same district and assigned (under a local related-case rule) to the same judge. It seems to me that the proper course have been to move to intervene or join as plaintiff in Wu and to move the court with jurisdiction over the injunction to enforce or modify. Filing a new lawsuit before a new judge is proper if asking for a new injunction protecting these plaintiffs as to these defendants.

Impeachment and the Direct Election of U.S. Senators

My thanks to Prawfsblawg for permitting me this guest writing stint. As a long-time reader, I have enjoyed others’ insights and now hope to contribute a few worthwhile nuggets during the next few weeks.

What type of impeachment trial can we reasonably expect in a Senate constituted by directly elected senators? As other commentators have observed (e.g. Jonathan Adler and Carissa Byrne Hessick), Alexander Hamilton anticipated the possibility that the House process could degenerate into a partisan food fight where House members, laying all merits aside, rush to defend or rise to oppose, a President along party lines. Nonetheless, Hamilton thought the Senate, constituted as a court of impeachment, would act as "a tribunal sufficiently dignified, or sufficiently independent" to save the process from a crassly partisan fate ruled by political bosses.

The impeachment of a President entails different political calculations than impeachment of a judicial officer, and the case of presidential impeachment probably more sorely tests the procedure's limits than the relatively lower stakes of a U.S. district court judge. It's unsurprising that many judicial impeachments, say, of an Alcee Hastings, a Walter Nixon, or a Thomas Porteous, occasion little partisan fanfare.

In contrast to lower court impeachments, we are about to witness a presidential impeachment trial where the Senate majority leader has publicly pledged “total coordination” with the White House Counsel’s office to kill the Trump impeachment. And House leadership, recognizing that reality, stalled transmitting the articles and attempted to secure an agreement on how the trial should proceed in the Senate. Political prognosticators regularly consult the Cook Senate Race report to guess which senators might be peeled away from the GOP majority and which Democratic senators might feel pragmatically obliged to side with Republicans due to close races. Notwithstanding oaths, senators today have strong structural incentives to behave as partisans, disappointing Hamilton's expectation of a sufficiently dignified, sufficiently independent process.

When Hamilton wrote Federalist No. 65, he didn't know that in the late 19th century, Oregon and other states would informally adopt popular direct election of U.S. senators by straw poll popular elections or that in 1913 we would formalize and lock in direct senatorial election with the 17th Amendment. As Todd Zywicki has explained (Hein online subscription required), this change had important consequences for bicameralism by making both chambers subject to direct election.

Importantly, direct election means the relevant voting audience is no longer a body of roughly 120 state legislators, conveniently gathered in a single location for a senatorial vote. Instead, voting is done by (rationally) politically ignorant voters who only variably show up to vote. Moreover, successful direct election campaigns now must reach millions of dispersed voters through costly campaigns. And these campaigns facilitate contributors gaining significant influence over their senatorial candidates. Of course, several indirect election pathologies, including corruption, were offered to justify direct election, but the direct election remedy entailed substantial tradeoffs.

My posts, while acknowledging a range of views about the 17th Amendment and its probable effects, will question skeptically whether the benefits were really worth the changes in how the Senate today discharges its constitutional functions.

Political grass is always greener . . .

Thursday morning, I read this Atlantic piece from Lee Drutman (New America Foundation) arguing that a pure ideological two-party system had broken the Constitution. It produced the situation that Washington, Hamilton, Madison, and others feared of the "alternate domination of one faction over another." Drutman urges Congress or states to institutionalize multi-party democracy and proportional representation; he argues that Madison's Federalist No. 10, "with its praise of fluid and flexible coalitions," envisioned some form of multi-party system.

Thursday evening, I read this Tablet piece from Neil Rogachevsky (Israel Studies and Political Thought at (Yeshiva), arguing that multi-party democracy and proportional representation is what has placed Israel in its current political predicament, with no party able to form a government. He hopes that Benjamin Netanyahu might be able to push first-past-the-post as a parting gift to the country.

There are no right answers.

How does a descendent of Huguenots, son of a fur trader . . .

The 2019 Year-End Report on the Federal Judiciary begins, as always, with an historical ditty. This year, it is the Doctors Riot in New York in 1788 as the reason that, as the lyrics in Hamilton tell us, "In the end, they wrote eighty-five essays, in the span of six months/John Jay got sick after writing five/James Madison wrote twenty-nine/Hamilton wrote the other fifty-one." Kudos to Roberts for the line "perhaps if Jay had been more productive, America might have rewarded him with a Broadway musical."

The theme this year is civic education and the essential role of individual judges, the courts, and the judiciary in providing that civic education. Roberts writes:

It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to under-stand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased that the judges and staff of our federal courts are taking up the challenge.

Three other things are sadly ironic. One is that the Court is poised to resolve cases involving congressional subpoenas that should be easy in a democracy--Congress can investigate a President, including through subpoenas of unconnected third parties, however it sees fit--but that seem to be genuine toss-ups given current political divides. Two is that the current President has done more to use social media to spread rumor and false information on a grand scale and the Court, when pressed, has fallen in line and may do so again.

Three, and away from the politics of the day,  Roberts does not mention the role that video or audio-recording-with-speedier-release of arguments could and should play in this civic education. He mentions courts posting opinions* online, giving the "public instant access to the reasoning behind the judgments that affect their lives." Wouldn't "instant access" to the public arguments leading to the "judgments that affect their lives" provide a similar public civic-education benefit?

[*] He does offer a nice description of the distinction between an opinion and a judgment--"judges render their judgments through written opinions that explain their reasoning." That distinction is key to judicial departmentalism and the non-judicial branches engaging in meaningful constitutional interpretation. More on that later.

Constitutional small claims court

Clark Neily at the Cato Blog proposes a constitutional small-claims court for low-level constitutional violations. Neily's starting example is a cop citing a woman for disorderly conduct for saying "bitch" in public, an obvious constitutional violation, then ordering away (on the silent threat of arrest) an attorney who attempted to intervene. Neily's proposal would create a small-claims-court/traffic-court hybrid, with small-money damage awards paid from an escrow fund established by each department. Neily acknowledges the major structural departure, but says it is better than the current approach, "which is to collectively shrug our shoulders at the vast majority of relatively low-level civil-rights violations committed by cops hundreds, if not thousands, of times a day across the country."

It is an interesting idea, of a piece with other proposals to enable recovery on small violations. In my Civil Rights class, I discuss Jim Pfander's proposal to allow plaintiffs to seek only nominal damages in exchange for eliminating qualified immunity.

There are a host of details to work out, as Neily acknowledges. They begin with whether this system is in federal or state court and what that choice says about our current assumptions about the federal judiciary and civil rights. If at the state (or municipal) level, recall that municipal traffic courts have become money-making institutions for themselves, their local governments, and their police departments, creating their own constitutional violations. We might worry about recreating that system, even with the different goal of compensating citizens against governmental overreach. Finally, should it be limited to police or should it extend to other executive officials who violate rights in a small, l0w-level way, such as the staffer in the Recorder of Deeds office?

Legislatures creating universality

As I discuss in a forthcoming piece, the combination of remedial particularity (no non-particularized injunctions) and departmentalism (the executive can ignore judicial precedent about a law's constitutional validity, at least until the matter reaches court) leaves an essential role for the legislature. The only way to stop the executive from enforcing or threatening to enforce a constitutionally dubious law, even one declared invalid by SCOTUS, is to repeal that law.

That was the task of the Commission to Examine Racial Equity in Virginia, which last month released its Interim Report identifying dozens of state laws for repeal; these include the anti-miscegination law at issue in Loving, some education laws enacted during Massive Resistance to Brown, and some laws targeting the "feeble-minded." Josh Blackman comments.

The action is symbolic, because any enforcement effort would fail. Any government official attempting to enforce would be sued for damages (qualified immunity would be lost, because the invalidity of these laws is clearly established by SCOTUS precedent), injunctive relief, and attorneys fees. And the line attorney litigating the case likely would be sanctioned (although I doubt it would be by contempt, as Josh suggests). But there is a substantive component, if read as the legislature checking the executive in some manner.

More state action and private vendettas

I wrote awhile back about a case in which police officers took private action against a citizen (trashing his car) based on a personal vendetta resulting from a professional dispute (the citizen filed a departmental complaint about them). The Seventh Circuit found no state action in an analogous case. A citizen shouted at a police officer while he was making an arrest and criticized the officer (and perhaps threatened his family) on Facebook, prompting the officer to file a criminal complaint with a fellow officer, prompting that officer to arrest the citizen. The court held that, although the original interaction came when the officer was on the job, he acted as a private citizen in filing a criminal complaint with another officer, who then pursued those charges.

The Seventh Circuit's analysis would reject the potential claim in the earlier case. I imagine the court would say the officers acted as private citizens in trashing the guy's car and it is not enough that the dispute traces to official police conduct.

Inexplicable decisions, in one post

The unifying themes of these decisions is that I heard about them yesterday and I do not understand.

• The Tenth Circuit held that officials of the University of New Mexico School of Medicine enjoyed qualified immunity from First Amendment claims arising from the school sanctioning a med student for "unprofessional" speech, because it was not clearly established that a professional school could not punish speech in the name of instilling professional values.

The court jumped to the second, "clearly established" prong of the qualified-immunity analysis, as it has discretion to do; but the court went beyond that, insisting that merits-first should be the exception, because of constitutional avoidance. But this seems problematic, generally and in this case. Generally, it will produce fewer opportunities for courts to develop constitutional law. In this case, skipping the merits no sense because the plaintiff also sought injunctive and declaratory relief, which is not subject to immunity and requires consideration of the constitutional merits. The court never explains what happened to those claims or why they do not compel the court to reach the constitutional question.

The case also reveals how courts, despite rhetoric to the contrary, demand factual overlap. As the court put it, the plaintiff “failed to identify a case where [a medical school administrator] acting under similar circumstances as [the defendants in this case] was held to have violated the [First] Amendment.” A" patchwork of cases connected by broad legal principles" is insufficient.

Also, note that the court ignored one factor weighing in favor of reaching the merits--the presence of amicus briefs from several First Amendment advocacy organizations, as well as Eugene Volokh. When the Third Circuit reached the merits and recognized a First Amendment right-to-record (while finding the right not clearly established at the time), it pointed to the presence of amici and the quality of the briefing in the case.

• The Fifth Circuit continues to be the only circuit to categorically reject state-created danger as a basis for substantive due process liability. The case involves  the mishandling of a 911 call--including waiting for officers to volunteer to respond and later refusing to help family members enter the victim's house unless they confirmed with local prisons and hospitals that she was not there, as well as the responding officers stopping at 7-Eleven before proceeding to the scene.

• More standing/merits overlap (or confusion) in this Sixth Circuit affirmance of denial of a preliminary injunction. Plaintiffs are parents of a child with autism, who placed him in a private therapy program instead of public school; although he improved in private therapy, the state convicted the parents of truancy. They then enrolled him in a state-approved private school. But they are concerned that he may regress, that they may want to pull him out, and that they again will be prosecuted for truancy. So they sued for an injunction. The court of appeals affirmed the denial, agreeing that the parents could not show irreparable harm without the injunction because the hypothetical threat of enforcement was not "certain and immediate," but "speculative or theoretical," dependent on ifs (if the son regresses, if they pull him out of the current school, if they cannot find a new option, if the state decides to prosecute).

Assuming the court is correct about imminence, why is that not a standing problem--the family is not suffering a concrete and particularized injury because they have not shown "an intention to engage in a course of conduct" proscribed by statute for which there is a credible threat of prosecution. The course of conduct (pulling him entirely out of school) may not occur, depending on too many variables. But that seems to be precisely what the injury-in-fact prong of standing asks. The answer should not be different at the standing analysis than at the injunction analysis--if the injury is sufficiently imminent to establish standing, it should be sufficiently imminent to satisfy the irreparable harm requirement. This is why irreparable harm is often assumed in constitutional cases--the violation of rights (or threatened violation, sufficient for standing) qualifies as irreparable harm unless the injunction issues.

As a normative matter, it is interesting to consider whether the plaintiffs might have fared better had they sought a declaratory judgment rather than an injunction. They would not have had to show irreparable injury (although the court almost certainly would have moved this immediacy analysis up to standing and dumped the case on that basis--see above). This illustrates the type of case Sam Bray argues is appropriate for a declaratory judgment--the plaintiffs need an explication of rights but do not need judicial oversight or supervision going forward. The plaintiffs wanted and needed  guidance and certainty--to know where they stood and what they could (and could not) do as they tried to create the best opportunities for their son; they did not need a court order prohibiting government officials from acting at this time.

Leavenworth, Breaking News

The following is by my FIU colleague Eric Carpenter, who has been live-blogging the Starz documentary.

Yesterday, President Trump pardoned Clint Lorance, along with Major Matthew Golsteyn (charged with the summary execution of a detainee). He also ordered the promotion of Special Warfare Operator First Class Edward Gallagher to the grade of E-7, the rank he held before he was court-martialed for murdering a detainee (he was acquitted of that charge but convicted of another charge, and the grade reduction was punishment for that other charge).

This was a terrible decision. He basically ignored the advice of his military counselors and followed the advice of Sean Hannity, thereby politicizing a justice system that already has issues with public confidence. The current coverage (and the coverage from when he thought about doing this earlier in the year but backed down) lays out many of the reasons why this was a bad decision. Further, by taking these actions, Trump may have committed a war crime.

All that aside, the press release announcing this decision shows that those giving Trump advice don’t really understand the military justice system. When the test balloon for the pardons was floated last week, the first idea was that Trump would disapprove the findings in Lorance’s and Gallagher’s courts-martial. An odd feature of the courts-martial is that the authority who convenes the court-martial must later approve the findings. This is a vestige from when a court-martial provided non-binding advice to convening authorities. The convening authorities would then approve or disapprove of those findings. Until 1916, commanders could send back acquittals or light sentences for a retrial. All of that has now gone away and the act is largely ceremonial. Here, the convening authorities had already approved these findings. The President could not undo that.

Someone must have figured that out because Trump looked to other presidential powers so that he could act on these cases. The President can pardon, and what he did with Lorance was within that power.

I am in the camp that the President can only pardon those who have been convicted, and so what he did with Golsteyn was not within that power. (This is one of those exercises in mental gymnastics, as we will never know the answer until a later administration tries to prosecute someone that an earlier administration has granted a pre-emptive pardon.)

He has another legitimate source of authority, though. Golsteyn’s case was still active. The President, as commander-in-chief, can withhold and dismiss any court-martial charges. Unlike what we see with the Department of Justice where the President is supposed to stay hands-off, there is no norm that the President should not get involved in court-martial proceedings. He is the commander-in-chief, and courts-martial are a tool of discipline. He is not allowed to unlawfully influence a court-martial or otherwise violate a service-member right to due process (for example, he is not allowed to tell subordinate commanders to take harsh action in a case or tell panel members to return a verdict of guilt), but anytime he disagrees with how a case is being handled, he withhold the case to himself and take whatever action he feels is appropriate.

He could have done that here. He could have then discharged Golsteyn, thereby ending the military’s jurisdiction over Golsteyn, which would prevent a subsequent president from reinstating the charges.

Turning to Gallagher, the President can grant clemency to Gallagher and reinstate his rank that way. Why he thought he had to order that Gallagher be promoted is beyond me, and Congress may have limited his authority to do that, anyway.

I think that is what happens when you ignore the advice of the experts and instead rely on talking heads to solve these problems.

 

Daily Northwestern gets pummeled--some thoughts (Updated)

I am a graduate of Northwestern's Medill School of Journalism, although I never worked at The Daily Northwestern and never pursued journalism as a career. I am following and interested in the scorching negative reaction to the paper's apology for its coverage of a campus speech by Jeff Sessions last week, at which protesters gathered outside and some protesters attempted to force their way into the lecture hall, where they were confronted and restrained by campus police.

It appears the paper overreacted and that its reporting, including the photographs it took and posted online, followed appropriate journalistic standards. It also appears that some of the sharp reaction to the apology reflects the "these damn snowflakes" annoyance with millenials, such as the paper's suggesting that it harmed and "retraumatized" student protesters by reporting on them (which is what the protesters seem to charge). And the paper seemed to be motivated by the possibility that its photographs and reporting could be used as a basis to identify and sanction student protesters--Northwestern does not provide amnesty for protesters who violate university rules (such as sneaking into the reserved lecture hall) and students are not excused from attendance policies because they were out protesting.

On the other hand, I would like to see more criticism of NU President Morton Schapiro, who uttered the following (according to The Daily) in a speech he gave to visitors over parents-weekend (my friend whose kid goes to Northwestern did not attend the speech).

Although Schapiro said he supports Sessions’ right to speak on campus and NUCR’s right to invite him, he questioned whether the former attorney general was “the right speaker” for NU. He said that on a campus as liberal as Northwestern’s, there is little opportunity to share conservative thought in a way that starts dialogue.

Schapiro — who said he is personally “not a fan” of Sessions — said NUCR missed a chance to do so by inviting him rather than a different conservative speaker.

“They had an opportunity and they didn’t use it,” he said. “All it was was polarizing. All it was was making the campus more unhappy. All it did was blow up and make things even worse.”

I await Schapiro's list of conservative speakers who would be "right" for NU, sharing conservative thought in a way that starts a dialogue but that does not make the campus unhappy. Say what you will about Sessions--and he apparently criticized the protesters in his speech, while paying lip service to freedom of speech. But Sessions was Attorney General of the United States and compared with the current occupant of the office, he looks like Nicholas Katzenbach. So what speaker would have been more acceptable to this crowd?

Finally, a thought on civil disobedience. Part of the debate is whether students should be sanctioned for breaking rules or obligations when protesting--skipping class to attend the lecture, sneaking into the closed hall in an attempt to interrupt Sessions' speech, etc. NU does not excuse such violations, taking the position that there are trade-offs and that students must make choices and bear responsibility for their actions. The Associated Student Government called on the university to change those policies, at least for "students with marginalized identities."

It seems to me the dispute here is over what civil disobedience means. NU students (the protesters, the ASG, the Daily editors) appear to believe that there is a free-speech opt-out from the rules--that if you are protesting, then university rules about attendance or closed spaces do not apply. But the idea of civil disobedience is that you peacefully violate a law--and accept the consequences for that violation--to call attention to the injustice of that law or something else. There is no right to interrupt the speech within the reserved hall; if you believe it is important to interrupt anyway, civil disobedience means you will do it anyway--and you accept the consequences.

The fascinating thing is how much has changed in 30 years. I would not have described NU as a particularly liberal place when I was there.

Update: A statement from Medill Dean Charles Whitaker. It is a strong statement that: Defends the Daily's coverage of the protests as consistent with journalistic standards; takes student activists to task for threatening paper staff and insisting that journalists should not have covered disadvantaged communities in a public protest; criticizes the editors for apologizing which, while well-intentioned, sends a chilling message about journalism; and calls on angry alums to give them a break, reminding them that these are students who are learning and dealing with a unique firestorm.

State-level universality

Much of the controversy over "nationwide" or "universal" injunctions has arisen in suits challenging federal las and regulations. But the reason for finding and using the appropriate nomenclature is that the real problem--injunctions protecting beyond the plaintiffs--can arise in challenges to all laws at all levels.

A divided Eighth Circuit addressed this in Rodgers v. Bryant, a challenge by two individual beggars (their term) to Arkansas's anti-loitering law. The district court granted a preliminary injunction prohibiting all enforcement and the majority of the court of appeals affirmed, relying on the district court finding that the law is "plainly unconstitutional," so it should not be enforced against anyone. Even the courts most willing to issue non-particularized injunctions in challenges to federal law have advanced beyond "the law violates the Constitution, so it can't be enforced against anyone" rationale.

Dissenting, Judge David Stras gets it perfectly right--the district court granted a universal preliminary injunction, prohibiting state police from "enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs." It is "universal" in that it protects the universe of people who might be subject to Arkansas law-as universal as the travel ban, only applicable to a smaller universe.

Stras examines the history equity to conclude that such non-particularized relief was not proper in individual actions and that equity's representative actions are now reflected in FRCP 23. Stras also hits the essential point that there is no reason to believe (and neither the district court nor the majority found) that "safeguarding Rodgers’s and Dilbeck’s right to speak somehow depends on preventing enforcement of the anti-loitering law against anyone else." The plaintiffs, he argued, sued to vindicate their own rights, so they obtain "complete relief" from an injunction protecting them from arrest under the statute.

Leavenworth Ep. 3, Judgment

The latest from Eric Carpenter of FIU on the series. Episode 3 featured Eric and his Military Justice class.

After you are convicted of an offense, one option is to blame your defense attorney for that result instead of the facts. Another is to come up with conspiracy theories to explain what happened. In this episode, we see Lorance use both options. I’ll talk about some issues related to those options and comment on some of the unusual features of the military justice system (why wasn’t Lorance in pretrial confinement leading up to the court-martial? why did he have a civilian defense counsel?) that come up in that context.

First, the ineffective assistance of counsel (IAC) claim. To start, every military accused, indigent or not, gets a military defense counsel. Military defense counsel work for a stove-piped, independent defense organization, are licensed members of a state or federal bar, and are well-trained and supervised. I was a military defense counsel for four years, and I have full confidence that military defense counsel, even though they are often junior attorneys, provide extraordinary service to their clients.

An accused also has the right to hire a civilian defense counsel (CDC) at his own expense. Here, Lorance did that. Many people in the system do not trust the system, and if they or their families have money (usually a court-martial defense costs $10-20k), they often hire a CDC.

After the conviction, Lorance filed an IAC claim on appeal, asserting (among other things) that his CDC did not meet with him frequently and didn’t show up to Fort Bragg, NC, until the day before the court-martial. One thing that did not come out in the episode is that Lorance also had several military defense counsel working for him who were doing a ton of work.

When someone hires a CDC, the military counsel stay on the case but take on a second-chair role. Often, the CDC will do the opening statement and closing argument and will handle a lot of the guilt-phase witnesses. The military counsel will do the sentencing case (in the military, the sentencing case is as intensive as the merits case). Even with this division of labor, the military counsel meet frequently with the client and do a lot of the prep work for the guilt-phase witnesses. Lorance’s defense team divided up labor along those lines. Viewers should not come away with the impression that Lorance did not have an active defense team.

The producers interviewed Lorance’s defense counsel for this project (I am going to assume he got a waiver from his client—the Army has rules of professional conduct that are essentially the same as the ABA’s). His attorney said that he thought he made a mistake by not asking for instructions on lesser included offenses to specific intent murder, like manslaughter. However, under the facts of this case, that was not a mistake.

The military does not have degrees of murder. It just has murder, but six types: premediated, specific intent to kill, intent to inflict great bodily harm, wanton disregard (the same thing as abandoned and malignant heart or implied malice, akin to super-recklessness), and felony. Premediated and felony are capital-eligible. Lorance was charged with specific intent murder, and the facts are that he intended to kill the men on the motorcycle when he ordered a soldier to shoot at them.

Like most jurisdictions, murder can be mitigated to voluntary manslaughter if the killer acted under adequate provocation. The provocation must have been adequate to excite an uncontrollable passion in a reasonable person. Words alone are not enough. Here, the problem is that there was no provocation. The men on the motorcycle did not do anything to Lorance or his unit. Even if the CDC asked for this instruction, the military judge should not have read it—the defense did not raise sufficient evidence of that issue. Failing to ask for it was not a mistake.

The military also has involuntary manslaughter (culpable negligence) and negligent homicide (simple negligence). Neither of those mental states (examples of unintentional homicide caused by risk-taking or failing to recognize a risk) occurred here. It is uncontroverted that Lorance intended to kill those villagers. The military judge should not have read an instruction on these offenses, either.

The only thing the CDC could have hoped for was that the military judge would read one of these instructions and then possibly the panel would have compromised on something that is legally illogical—basically, hoping nullification would trump reason.  Failing to do something that relies only on jury nullification to work is not IAC.

I went through the trial transcript in preparation for my interviews, and I am confident that his CDC did a competent job. His cross-examinations of the witnesses were pretty good. Lorance just had bad facts.

Now to the conspiracy theories. The director exposes us to some of these, but my sense is that he does that to show their absurdity rather than to give them validity. Here are some of them: the CDC was in cahoots with the Army; the Army knew what the result was going to be all along; the Army was doing this to appease the Afghan government in partial response to another mass murder than was committed by an American soldier; and, senior officers were doing this to protect their careers.

Of these, only one holds any reflection of the truth. One of the reasons we prosecute soldiers who commit crimes within the host country is to show the people of that country that we hold our soldiers accountable. That is a legitimate reason (among other reasons) for prosecuting soldiers who commit crimes.

There were a couple of facts that need some explanation. First, the names of the dead men were initially written on the charge sheet, then prosecutors lined through those names and wrote in something like “adult male.” The conspiracy theory is that had to do with a cover-up or hiding the fact that they may have been enemy combatants. The better explanation is, things like that happen all the time in the military on charge sheets and it is allowed, provided the defense gets proper notice.

Proving the name of an Afghan is difficult. For most Afghans, there are no birth records or death records. But proving that two men died was easy: there were aerial photographs of their bodies. The names were not legally required to be on the charge sheet. By crossing through the names, the government did not have to try to prove the names. They just needed to prove two dead bodies, and they can point to the photos for that. 

The other fact is that one of the people on the motorcycle may have had some contact with the Taliban. The government did not disclose this to the defense ahead of trial. The conspiracy theory is basically the same: the government knew Lorance did the right thing but scapegoated him to appease the Afghan government.

The defense raised this on appeal as a Brady issue. Under Brady, the government must disclose evidence that is favorable to the defense. If they don’t, the error is tested for prejudice: if the evidence was material to the defense (essentially hyper-relative), then the error requires reversal.

Here, there was no error. The only way this information could be favorable is if Lorance knew about it before the shooting. If he knew that information, then it could factor into the self-defense reasoning. But he didn’t. It was irrelevant to his decision making. (The Army appellate court decided this issue the same way).

Further, even if the men on the motorcycle had been known Taliban, under the Rules of Engagement (ROE) Lorance was operating under, he would not have been able to shoot them on sight. He would still have had to have perceived a hostile act or imminent threat. (Under the laws of war, you can shoot the enemy on sight, even if they are not shooting at you. Those were not the ROE in effect in Afghanistan, though).

One side note. Viewers may have been surprised to see that Lorance was not in jail pending the trial or during the trial. He rode to the courthouse every day in a van with this family.

For the most part, service members do not go to jail before trial. There is no bail in the military. You either go into pretrial confinement, or you don’t. The unit commander makes that decision, but the rules are weighted heavily in favor of not putting soldiers into pretrial confinement.

To do so, there must be probable cause that the service member committed the offense (this is usually apparent). Next, confinement must be necessary because it is foreseeable that (1) the accused is a flight risk OR will engage in future serious criminal misconduct, AND (2) less severe forms of restraint are inadequate. Here, Lorance was not a flight risk and there is no indication that he would commit a violent crime or engage in obstruction of justice. Like many accused, he spent his time before trial doing productive work in his unit.

Allen v. Cooper argument review

My SCOTUSBlog review of Tuesday's argument. It seems pretty clear the Court is going to reverse--only Justice Alito pushed petititoner's counsel and he seemed just as suspicious of the arguments from counsel for the state. Four justices--Ginsburg, Breyer, Kagan, and Kavanaugh--all expressed different versions of a suspicion that the state was asking for a license to violate rights.

A few interesting stray comments and exchanges from the state's side. The first was his assumption that sovereign immunity only bars claims for damages but no injunction relief; this is true in effect because of Ex Parte Young, but not true as a matter of formal sovereign immunity doctrine. The other was the Court's response to the state's argument that, even if the state cannot be sued, the individual infringing officers can be sued, while conceding they will be indemnified and may enjoy qualified immunity. That last point raised the Chief's hackles--he did not seem to buy an individual suit as an alternative if the officer would be immune; counsel for the state argued that the showing for an intentional infringement (and thus a due process violation) is the same as the showing for clearly established, so any officer claiming immunity likely did not violate due process. Anyway, that was the most exorcised the Chief has been about an officer enjoying qualified immunity.

And, of course, I could not resist some pirate jokes.

Fun with diversity (Updated)

Two fun news stories on diversity.

1) President Trump announced yesterday that he was changing his domicile from New York to Florida, although he insists he enjoys living in the White House and plans to continue to do so for another five years. The jurisdiction essay for spring 2017 had Trump attempting to remove Summer Zervos' lawsuit; the best answer was despite having moved to Washington and owning property in Florida at which he spent a bit of time, he remained a New York citizen and was barred from removal by the Forum Defendant Rule.

So has Trump affected a change of domicile with his announcement, seeing as how he owns property and spends some part of the year in Florida? Or does he need to be present there more permanently after leaving the White House? Better still, does his stated desire to remain the White House five more years suggest an intent to remain (and thus a change to DC), at least for now?

2) I got a call from a journalist about this one. An insurance company filed suit against a Washington, D.C.-based law firm (a limited partnership). The firm moved to dismiss because it has a London office and a partner a U.S. citizen) who moved to London to staff the office, has been there for five years, and intends to remain in London for the foreseeable future, while keeping his U.S. citizenship. Because that London partner is domiciled in the U.K. while remaining a U.S. citizen, he is "stateless" for diversity purposes. And because a partnership takes on the citizenship of all partners, the partnership is stateless for diversity purposes. Thank you, Elizabeth Taylor.

I could not tell the reporter whether this was unusual or whether it was an increasing trend. The firm's motion cites a 1990 case from the Second Circuit holding that Sullivan Cromwell could not be sued in diversity because of its U.S.-citizen partners staffing overseas offices.

What I cannot figure out is why the firm (which filed its own suit in state court) would rather be in NC state court against a NC-based insurer. It is both an outsider to the state and a defendant, the two groups who generally want to be in federal court.

Leavenworth, Ep. 2: Casualties, part 1.

The following is by Eric Carpenter (FIU), who is live-blogging the show

We get to the actual shooting in this episode. I think the facts in the case, as I have learned them, convincingly show that Lorance is guilty of specific intent murder. I was wondering how the director was going to portray the facts, and it appears the director thinks so, too. Again, this is basically a self-defense case. In this post, I’ll go over a few of those facts and discuss an issue with the investigation that came up in the show. In the next post, I’ll give a quick discussion on how military law deals with the problem of when a superior gives an illegal order to a subordinate.

The director left out a couple of facts and didn’t emphasize the significance of another event. To start, right when Lorance took over his platoon, he threatened a villager and his child. That farmer came up to the observation post and, understandably, asked Lorance if he would move a role of barbed wire that was making it difficult to work his field. Lorance’s response was to threaten the kill the man and his family.

The next day, Lorance ordered his men to shoot harassing fire at the village (think of a scene from a Western movie where an outlaw shoots within feet of someone to make that person dance). That was clearly illegal and beyond the bounds of the Rules of Engagement (ROE). Lorance did this to get the villagers to show up to a meeting later in the week where he would apparently start building a good relationship with them. Some villagers came up to the observation post the next day to complain about the harassing fire and then Lorance threated to kill them, too. The day after that was when the patrol killed the two villagers. All of that in three days.

The director does a pretty good job describing the actual shooting, and the facts show that the unit was not facing a hostile act or hostile intent from the men on the motorcycle. As the motorcycle was approaching at a moderate pace on a washed-out road, Lorance had a soldier shoot at it. The soldier missed (maybe intentionally). The motorcycle kept going down the road, and afterwards Lorance said that because it kept going, it showed a hostile intent. The problem with that is that after those rounds were fired, the villagers stopped, dismounted, and went over to talk to members of the Afghan National Army who were part of the patrol. They then went to wait by their motorcycle. That is when Lorance ordered the shooting.

Those Afghan soldiers knew that the villagers did not pose a threat. So did the members of the American platoon. A fact I did not know about before I watched this episode is that another sergeant in the platoon, the one responsible for the gun truck, had told his soldiers earlier not to fire unless he told them to because he was concerned about some things that Lorance had said. In the moments leading to the shooting, he and Lorance were arguing on the radio, with Lorance telling the soldiers in the gun truck to fire and the sergeant telling those soldiers not to. The soldiers in the gun truck followed Lorance’s order and opened up with a medium-weight machine gun, killing two of the villagers.

Add to that a bunch of evidence of consciousness of guilt and the case seems pretty tight. Lorance told a soldier who was specially trained on gathering intelligence from dead combatants not to do the assessment and instead had two untrained soldiers do it. When they did not find any evidence that the villagers were Taliban, Lorance ordered some soldiers to report to headquarters that the bodies were dragged away before they could be searched. Those soldiers refused that order so Lorance made the report false himself.

The facts were pretty bad for Lorance, and his defense team had to have been in a tough spot. We get a hint of the defense strategy at the end of the episode. After the shooting, the company commander called the platoon back to the company area, put the soldiers in a tent, and had them fill out sworn statements about what they had seen. (The statements were all consistent.) The defense counsel suggests that they spent their time getting their stories straight.

That process may seem a little odd. Usually law enforcement (and not a commander) would do the investigation from the start. In the military, though, commanders are supposed to do an initial investigation. Rule for Courts-Martial 303 says that when commanders receive a report of misconduct, the immediate commander shall conduct a preliminary inquiry. The discussion to the rule says that these investigations are often informal, but also says that in complex cases, the commander should seek the assistance of law enforcement.

Here, it looks like the commander wanted to quickly find out what happened, brought the soldiers in, and had them give statements. That is what the rule contemplates. The commander then brought in formal law enforcement once he had a sense that something bad really had happened. The facts suggest that the soldiers sat quietly filling out the statements and were not getting their stories straight.

This rule can cause problems. Commanders can sometimes get wind of misconduct (say, drug use), do a preliminary inquiry, and then mess up a larger, undercover investigation that law enforcement is conducting. Or commanders might interview potential suspects without giving proper rights warnings. Or, the initial witness statements might be sparse or off-point and those statements can later be used to impeach those witnesses. Of those, maybe the last one will be implicated in this case.

Here, the director implies that the defense will be saying that the platoon got together to tell a story so that they could get rid of this new platoon leader they did not like. And I think he will say, they did not like him because he was gay.

The first part of the episode discusses how Lorance came to terms with his sexual identity, and how his parents could not come to terms with it (adopting the, “Hate the sin, love the sinner” approach). We also learn that even though Don’t Ask, Don’t Tell had been formally appealed, Lorance tried to keep his identity secret. This appears to have caused some issues in his relationship with his partner. While Lorance was deployed, his partner went on a family support group Facebook page to post a message to Lorance. Lorance was able to keep the post from going live, but the page manager appears to have spread a rumor that he was gay. That rumor made it to the headquarters unit he was serving with; however, it does not appear to have reached the platoon. We may find out in the next episode if that rumor become relevant.

Judging Lawyers Based On Their Clients

Yesterday the New York Times published a lengthy story on external work that Elizabeth Warren did while she was still a law professor.  The story, which is titled “Elizabeth Warren’s Days Defending Big Corporations” focuses on a few different themes—the amount of money that Warren made off of these external gigs, the fact that her campaign’s summaries of these representations is overly simplified, and the identity of the clients she represented. 

As I explained last spring, when the Washington Post wrote about the fees that Warren collected for this work, the amount of money that Warren made for these representations seems to be within the range of what other professors with comparable experience and profiles charge.  And while I think that we could have a fruitful and worthwhile conversation about the desirability of law professors taking on this paid external work, that doesn’t seem to be the upshot of the Times or WaPo stories. 

The Times does point out that the summaries that the Warren campaign put out of these representations are overly simplified.  And as someone who generally expects candor and nuance from other law professors (even former law professors), I was sorry to see that Warren’s campaign isn’t holding themselves to that standard.  But the Twitter horde’s response to the story seems to be one of outrage: How dare Warren have any corporate clients? Corporations are, by definition, evil!!  In light of this weird, kneejerk response, I understand the campaign’s decision—even if I don’t approve of it—to oversimplify in order to push back against this lack of nuance in public opinion.  And the Times headline suggests that the editors at the paper at least know about this rabidly anti-corporate viewpoint (and perhaps share it themselves).

I won’t rehash here the argument that I made on Twitter – which is that even a non-simplified description of Warren’s work for corporations shows that she was, in all of these, cases pushing for a robust bankruptcy system in which the bankruptcy process fully and finally discharges all debts and liabilities.  (In other words, according to the Times’ own reporting, Warren’s work for corporate clients was consistent with her academic principles—principles, which she undoubtedly believes are important to protecting ordinary people.)  Instead, I’d rather talk about why it’s newsworthy to talk about the identity of Warren’s clients.  Because there is no denying that it is the identity of Warren’s clients—i.e., that they are corporations—that folks who support other candidates in the Democratic primary seem to be most worked up about.

I think this is a topic worth talking about because it is part of a larger question—namely whether to judge lawyers based on the identity of their clients.

 

Whether to judge lawyers based on their clients is, of course, hardly a new issue.  The issue is even mentioned in the ABA Rules of Professional Responsibility, which say that “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.” I’d always assumed that this rule represented the conventional wisdom within the legal community, but I’m no longer so sure.

My doubts started when I saw a number of lawyers and law professors that I know criticize Jamie Gorelick for her decision to represent Jared Kushner.  Gorelick is a long-time Democrat who served in Bill Clinton’s DOJ.  My doubts grew as Harvard Law School’s Ron Sullivan faced heavy criticism by other lawyers for representing Harvey Weinstein.  Some people defended Sullivan (and criticized Harvard’s actions), but other lawyers and law professors who I admire joined the chorus of Sullivan’s critics.

The criticisms about Gorelick and Sullivan seemed to fall into two related but different categories:  The first was about the professional choices that the lawyers were making.  Specifically, the argument was that high-profile lawyers can pick and choose among their clients.  Every client that a lawyer represents comes with opportunity costs—if you represent client A, then you may not have the time to represent client B.  Because lawyers must choose between clients, so the argument goes, their choices should account for whether clients or causes are worthy of their time.

The second argument was about the fact that these clients could choose between lawyers.  Because Kushner and Weinstein could afford to pay for an attorney, the ordinary arguments about how everyone needs a lawyer didn’t apply.  Their wealth was going to buy them a lawyer, the critics argued, and so people like Gorelick and Sullivan didn’t have to take the case in order to ensure that justice was done.  In some ways I think that this argument was made defensively.  If the argument is about whether clients can pay, then it distinguishes the Kushners and Weinsteins of the world from the indigent criminal defendants who are accused of horrific crimes.  Those indigent clients can’t pay, the critics argued, and so the access to justice argument still has force.

I raised the question of judging lawyers for their clients in my Professional Responsibility class earlier this semester.  The students were pretty split.  Those who students who see lawyering as a way to bring about change in the world seemed more open to criticizing those who choose to represent the Kushners and Weinsteins.  But others argued that the distinction between clients who can pay and those who can’t is unable to take the weight of the argument—they seemed to think that the worldview that endorsed judging lawyers for their paying clients is all too likely to bleed over into judging lawyers for their non-paying clients.

Personally, I’m not really sure what to think.  My inclination is that we should judge lawyers by the quality of their arguments, rather than the deeds of their clients.  But I am hardly confident about that view, and I’d be interested to hear from others.

As for law professors in particular, I think that the issue is probably more complicated than we’d like to think about.  It’s tempting to say that this external work is entirely discretionary, and so we ought to feel more comfortable judging law professors for their clients.  But for some law professors—especially those who live in expensive cities or who don’t come from family money—I’m sure that they take on this work, at least in part, because they are trying to pay their mortgage or pay their kids’ tuition bills.  And, in any event, if a law professor is using external representation or consulting as a way to change the law—especially to change the law in a way that is consistent with her scholarship—I’m not really sure that it matters who the client is.  The law is, after all, generally applicable. And the fact that a change in the law might benefit people or companies that we don’t like hardly seems like a good reason not to improve the law itself.

Leavenworth, Ep. 1: Soldiers.

This post is by my FIU colleague Eric Carpenter, a retired Ranger and JAG attorney. He is covering the HBO documentary for us. Episode 1 aired last Sunday; Episode 2 premieres tomorrow.

If Clint Lorance had not deployed to Afghanistan, he would have never committed a crime like murder. By all accounts, he was a productive member of society and joined the military for honorable purposes. In Episode 1 of Leavenworth, the director appears to start his argument for why a law-abiding, disciplined soldier would commit a crime like this. His basic thesis will be, I think, that Lorance was overcompensating for several factors and felt he had to quickly establish himself as a tough leader who would impose his will on the enemy. Ignoring the rules of engagement (or creating his own) fit that image.

One of these factors is that Lorance was tasked mid-tour, on short notice, to replace the battle-seasoned platoon leader of a battle-seasoned platoon. The original platoon leader—the one who led the unit through the preparations for combat and the initial part of the deployment—was wounded in an improvised explosive device (IED) explosion. This platoon leader appears to have been well-respected by his soldiers and was Ranger-qualified.  

The platoon was battle-seasoned, too. The platoon had already been in firefights and, presumably, had already been awarded the coveted Combat Infantryman Badge (CIB). Two other members of the platoon were also seriously wounded in combat. And the director brings in a social psychologist to explain how people bond in situations like these.

Replacing that platoon leader in that platoon would be a tough leadership task for anyone to undertake. Lorance had some strikes against him.

To start, he did not graduate from Ranger School. In the Army, having bells and whistles on your uniform matters. Lorance walked into the unit without a Ranger Tab and without a CIB.

After new lieutenants graduate from Infantry Basic Officer Leadership Course, they go to Ranger School. If they graduate from Ranger School, they can expect to be a platoon leader in a light infantry unit. If they do not, they often go to a mechanized infantry unit, or go to a light infantry unit but serve in a headquarters element. Lorance did not graduate from Ranger School and so was serving in a headquarters unit. When I deployed, I was a judge advocate and served in a headquarters unit. An anacronym exists for people in headquarters elements: REMF. Rear-echelon . . . 

So not only did Lorance show up without the right bells and whistles, he had been, up to that point, a REMF. He may have thought that he had something to prove.

Plus another factor. I have been following this case for a while, and I did not know about it.

Lorance is gay. He grew up within a conservative family, as a Pentecostalist, in Hobart, Oklahoma, itself a very conservative area. The director leads us to believe that his family was not accepting of his sexual orientation. As I think through how that fact might be relevant to the story, I expect the director will argue that he felt he had to overcompensate within what many would consider to be a hyper-masculine society.

Congress repealed Don’t Ask, Don’t Tell (DADT) on September 20, 2011. The repeal was supported by a large number of senior military leaders. I was a student at the Command and General Staff College in the period leading up to the repeal. We routinely heard from senior leaders in government as they talked about complex problems. One of the best comments I heard was from Admiral Mike Mullen, then the Chairman of the Joint Chiefs of Staff. He said that his turning point was when he recognized that the policy ran contrary to one of the military’s key values: integrity. His point was, “How can we say that we value integrity, and then turn around and tell a service member that they have to lie about who they are?”

Those who opposed the repeal warned of dire consequences (primarily, that unit cohesion will fall apart), but in the part of the Army where I served, none of the dire consequences came about. From the perspective of many straight service members, nothing really changed. (I was against the policy and glad for the symbolic meaning of repeal.) There were LGBTQ service members in the military during DADT, everyone knew it, and most people did not care. People cared about whether you were good at your job.

I recognize that those in the LGBTQ community must have had a completely different experience under DADT, and even if 95 out of 100 service people treated them with dignity and respect (I am making that number up), they would still have to constantly deal with the 5 out of 100 who didn’t.

Lorance took over his platoon in 2012. DADT was only a year in the grave, and I don’t know what the experience during this period was like for members of the LGBTQ community. Further, I don’t know what the culture was like in infantry units at the time. I expect the director will fill us in.

Aaron Sorkin wrote Donald Trump, Example No. 31

I have argued before that Aaron's Sorkin's The West Wing reflects and lauds the politics practiced in the Trump White House, albeit in service of different substantive policy ends. The latest example is the announcement that the White House would cancel subscriptions to The New York Times and Washington Post and was ordering agencies and departments to cancel their subscriptions.

In one episode of The West Wing, President Bartlet and C.J. Cregg are mad about coverage of the administration by reporter Danny Concannon and his paper (I do not remember if it was the Post or a fictional paper). In a meeting among the three, Bartlet announces that he is canceling "our" subscription to Danny's paper. C.J. applauds the move as a way to damage the paper financially. Bartlet then reveals that he was speaking only of his personal subscription, not the governmental subscription, which disappoints C.J.

The point is that Sorkin liked the sort of politics in which the government punishes critics financially, in a way that would worsen the effectiveness of government (if we believe that staying abreast of the news is important for government officials). C.J. is the POV character in that scene and she is incensed that Bartlet will not do more to sanction and financially injure the paper and his critics.

Nor does this explanation cut it:

The difference is that Bartlet was a good president, who was prone to being occasionally snitty. In contrast, Donald Trump is an awful president who routinely displays the immaturity of an infant.

That cannot be right. Either it is ok for a President to lash at his critics in this way or it isn't. Either it is ok to call political adversaries names or it isn't; either it is ok to strip press credentials from critical reporters or it isn't. Neither the political position nor perceived quality of the President and administration should make a difference.

Why not standing?

The problem with standing is not only that it is an improperly constitutiuonalized merits inquiry. It also is the inconsistency in the movement between standing and merits. Take this unpublished Third Circuit decision. Plaintiffs are anti-choice advocates who with to engage in sidewalk counseling through one-on-one conversations with entering clinic patients. The court performed a limiting construction on the statute, reading it (as it had done a similar ordinance in another case) as not reaching one-on-one sidewalk counseling.

But then shouldn't the result have been that the plaintiffs lacked standing? The conduct in which they intended to engage was not prohibited or regulated by the statute (as interpreted), so they were not suffering an injury-in-fact fairly traceable to the conduct of enforcing that statute, since that statute could not be enforced against them. At least that is how some courts resolve similar cases. And if not standing (as, normatively, it is not), that should mean that all of this is a question of the scope of the challenged law and the scope of constitutional rights?

Leavenworth: Prologue

The following is by my FIU colleague Eric Carpenter. It is the first in a series of regular posts blogging the new Starz documentary "Leavenworth." Eric teaches Crim, Evidence, and Military Justice at FIU and served in Army JAG before coming to law teaching. He covered the second season (Bergdahl) of "Serial."

Thank you, Howard, for the opportunity to provide some running commentary on another true-crime docuseries that covers a military justice case. Leavenworth follows the story of Lieutenant Clint Lorance, an American infantry platoon leader who ordered his soldiers to open fire on three Aghans who were riding a motorcycle, resulting in two deaths. In this blog series, I hope to explain some of the peculiarities of the military justice system that will pop up. As I expect the director will offer criticisms of the system, I will give my thoughts on those, too.

I also hope to discuss some of the bigger themes that this case raises. First, this case is nested among several others where service members allegedly committed or did commit crimes against host-nation nationals (Navy SEAL Special Operations Chief Edward Gallagher, Major Matthew Golsteyn, for example) and then had their causes championed by Sean Hannity and others. Trump had considered stopping the prosecutions or granting pardons last Memorial Day but changed his mind after facing significant criticism.  One of my questions is, what explains that support?

Are we placing service members in complex situations where the enemy looks like the local population and does not play by the rules, and then forcing our troops to choose being buried by six or tried by twelve? If so, that might explain it. It is just not fair to prosecute them. Or are servicemembers well-trained on the rules and counter-insurgency operations, and Lorance (and the others) just ignored the rules? If the second is true, why are some still championing their cause?

A related theme is that there is nothing new under the sun. The problem of using force in counter-insurgency warfare is not new. I start my military justice class by playing the movie Breaker Morant, a true story from the Second Boar War in South Africa in 1902 (available for free in Kanopy and well-worth the watch). The basic issues in Lorance are the same as those faced by those British and Australian soldiers. U.S. service members dealt with these problems in Vietnam. While the Lorance shooting cannot be equated to the My Lai massacre (where several hundred civilians were killed), the facts leading into both are similar. Nothing is new. We just forget.

Several years into the war in Iraq, the American military finally recognized that it was fighting a counter-insurgency. David Petraeus (featured in Leavenworth) then wrote a manual on counter-insurgency operations that rejected the colonial “use force to get them to do what we want” approach and instead recognized that we need to provide the local population with security from insurgents. He put that doctrine into action while commanding forces in Iraq and Afghanistan. But adopting that strategy involves having soldiers assume risk that they did not have to before. And that is the world that Lorance worked within. Perhaps his champions’ real issue is with that assumption of risk and the rejection of the colonial approach.

The main legal issue will feel familiar: did Lorance act in self-defense of his unit? While he was deployed to Afghanistan, the rules of engagement were basically the same as the elements of common law self-defense. These rules are unclassified. The force has to be necessary: if unit commanders are on the receiving end of a hostile act, they can fight back; if they are moments away from facing a hostile act (they see a hostile intent), they can engage before the other side has a chance to act on that intent. The force used must be proportional, and if unit commanders can de-escalate the situation without using force, they should.

There are some interesting side issues. Lorance didn’t pull the trigger. Someone else did. If that soldier—the one who pulled the trigger—were put on trial, would he have a defense of obedience to orders? If he refused the order, could he be tried for failing to obey an order? I use the Lorance appellate case when teaching that defense and that crime to my military justice students. I hope to unpack those along the way. It turns out that some soldiers refused his orders to commit crimes and others did not. (Most were granted immunity to testify.)

Last, and in keeping with Prawfs origin story, I hope to share some lessons I learned while participating in this project. I gave a four-hour interview and the producer filmed my criminal law class and evidence class as they discussed issues in the case. I have no idea how the director put these scenes together, though. We’ll learn together.

Universal injunctions and mootness

A divided Ninth Circuit affirmed the preliminary injunction prohibiting enforcement of the new regulations regarding the ACA contraception mandate. One issue in the case, which the court ordered briefed, is whether a universal injunction issued by a different district court (and affirmed by the Third Circuit) moots this case. Because the plaintiffs are protected by the other injunction, a Ninth Circuit ruling will not change their situation. (H/T: Brian Cardile of the Daily Journal).

The majority held the case not moot, although some of its analysis does not capture the issue. The court began by discussing the risk of conflicting injunctions, which is not the issue here--the denial of the injunction in the Ninth Circuit would not conflict in the sense of creating competing obligations--the Third Circuit injunction obligates (or restrains) the government from acting as to anyone in the universe, so nothing the Ninth Circuit does changes that. The court also spoke about the territorial limits about its injunction, ignoring that the issue is not geographic where but party who. It said that the injunctions "complement each other and do not conflict." In fact, however, it is not that they complement--it is that they repeat one another, because the Third Circuit universal injunction, which protects the California plaintiffs, renders a second injunction unnecessary.

The majority avoided mootness by applying capable-of-repetition-yet-evading-review. The Third Circuit injunction is preliminary (thus of limited duration) and before SCOTUS on a cert petition, both of which could result in the vacatur of its injunction or at least of its universality. The injury would not be capable of repetition only if the Third Circuit turned this into a universal permanent injunction, which is speculative and far off.

Judge Kleinfeld dissented on mootness, standing, and the merits. As to the different injunctions, he gets it:

That nationwide injunction means that the preliminary injunction before us is entirely without effect. If we affirm, as the majority does, nothing is stopped that the Pennsylvania injunction has not already stopped. Were we to reverse, and direct that the district court injunction be vacated, the rule would still not go into effect, because of the Pennsylvania injunction. Nothing the district court in our case did, or that we do, matters. We are talking to the air, without practical consequence. Whatever differences there may be in the reasoning for our decision and the Third Circuit’s have no material significance, because they do not change the outcome at all; the new regulation cannot come into effect.

This is correct and a proper recognition of what happens when courts take universality seriously.

I am not sure if the proper conclusion is that the appeal becomes constitutionally moot (I am not a fan of justiciability doctrines). Or, as Sam Bray argues, this is a good reason the Ninth Circuit should have stayed its hand.

Update: I took a quick look at the Third Circuit decision affirming the injunction. It misses the point, talking about people who work in different states than they live and the problem of geographic limitations. Again, however, the problem is not where. A protected plaintiff (including a state) is protected everywhere.

A progressive SCOTUS short list

The progressive group Demand Justice has issued a Supreme Court Shortlist, offering 32 names for SCOTUS appointments by a new Democratic President. It is an interesting list.

It contains only two federal court of appeals judges--Jane Kelly (8th Circuit, a short-lister for the Garland nomination), and Cornelia Pillar (D.C. Circuit). And not Patricia Millett of the D.C. Circuit, who had become the left's darling with her opinions in the undocumented-immigrant-abortion cases.

The list consists of 17 women and 13 men. Besides the two court of appeals judges, thirteen do some sort of public-interest representation, seven are in the academy,* four are on a state court (three on the Supreme Court of California, including Goodwin Liu, who Obama tried to put on the Ninth Circuit), four serve in elected or appointed office, and two serve on a federal district court. The organization expressly sought to move away from the former prosecutors and law-firm partners who have dominated among Trump appointees.

[*] Sharon Bloch (Harvard), James Forman, Jr. (Yale), Pam Karlan (Stanford), M. Elizabeth Magill (Provost at UVa, former dean at Stanford), Melissa Murray (NYU), Zephyr Teachout (Fordham), and Tim Wu (Columbia). Plus, Sherrilyn Ifill of the NAACP LDEF was on the faculty at Maryland and Rep. Katie Porter (Cal) was on the faculty at Iowa and Irvine.

The list is short on federal judicial experience, making it a throwback to a time when judicial experience was not regarded as essential to a SCOTUS seat and when service on a state court was respected judicial experience for that position. I wonder if this is a SCOTUS shortlist or a good place for a Democratic President to begin filling lower-court seats.

I am surprised our own Steve Vladeck did not make the cut. The combination of his scholarship, public advocacy, and recent litigation experience places him within the legal milieu reflected on the list.

Virginia has jurisdiction over Twitter in Nunes suit

It must be awful procedure day. In addition to whatever the Second Circuit did, a Virginia trial court denied Twitter's motion to dismiss for lack of personal jurisdiction Cong. Nunes' suit against Twitter, a Twitter user, and Devin Nunes' Cow.

The court found "general personal jurisdiction" over Twitter, based on its being registered to do business in Virginia, having a registered agent in Virginia, deriving a large amount of revenue from there, and having many users in Virginia, "sufficient minimum contacts to confer jurisdiction." Perhaps in 2005, but not since Good Year, Daimler, and BNSF did away with general jurisdiction based on a company doing a lot of business in a state and seemed to limit general jurisdiction to state of incorporation and principal place of business. The court discussed BNSF to distinguish it based on the injury occurring in the forum state, but ignored the other two cases. It also emphasized that Nunes suffered an injury in Virginia (because that is where the tweets were sent from and read), while not mentioning that locus of injury is not sufficient and Twitter did not direct any activities (not deleting the tweets) at Virginia in relation to this case. Even if knowledge of the plaintiff's location were sufficient (it is not, after Walden), Twitter's assumption would have been that Nunes was in California or Washington, D.C., not Virginia.

The court also rejected a forum non conveniens argument, because it was not clear there was an alternative forum. It was not clear there would be jurisdiction in California, even though both Nunes and Twitter are from there and the individual defendant consented to jurisdiction there. (Nunes does not want to be in California, where he must deal with its SLAPP statute).

Someone said the judge has a reputation as being pretty good. This is not his best work.

District court abstains in Trump subpoena case (Fast Update)

The Southern District of New York abstained under Younger from a federal lawsuit by the President seeking to stop enforcement of a New York grand-jury subpoena seeking 8 years of Trump tax returns and financial records. The court abstained in a meticulous Younger analysis, then explained why the President did not enjoy immunity warranting a preliminary injunction even if it kept the case. The Younger analysis is almost certainly correct. The President's attempt to create an exceptional-circumstances exception by analogizing his immunity to double jeopardy (which some courts have held as a basis for not abstaining) was interesting, but I think properly rejected.

Given Steve's thesis that Trump and his DOJ cannot stand passing through the court of appeals, next step SCOTUS on a petition for cert before judgment?

Quick Update: The Second Circuit stayed the decision. But what did it stay and what does it mean to stay it? The district court abstaining? It makes no sense to "stay" a decision declining to hear a case. The denial of the preliminary injunction, which was arguably dicta? What does the stay of the denial of an injunction do--it can't create the injunction, which was never issued (because the district court lacked the power to issue it). What the Second Circuit wanted to "stay" is the state-court subpoena, but it has no power to do that. Ah, procedure.

Further Update: The Second Circuit order states

Appellant has filed a motion seeking an order temporarily staying enforcement of a subpoena to his accountant. Because of the unique issues raised by this appeal, IT IS HEREBY ORDERED that a temporary administrative stay is granted pending expedited review by a panel of the Court.

So the court did stay the subpoena, not the district court order. I have had some conversations with Civ Pro colleagues and the general view is this makes no sense. Administrative stays are routine  as a precursor to turning the stay to a motions panel. But there is nothing to stay here. The court cannot "stay" a dismissal of an action or the denial of an injunction. Now there are mechanisms for the court to do this, namely under the All Writs Act as in aid of the court's appellate jurisdiction. But that is not what Trump asked for (it requested a stay) and the court did not do the (I expect) more complex analysis required before issuing a writ. It seems as if the court took the usual approach to an unusual case. In the routine case, the district court enjoins enforcement of a law or reg and the court of appeals stays that injunction; here, it rotely applied that procedure in a situation that does not match.

Tea leaves on the abortion case

SCOTUS granted cert in two related cases challenging Louisiana's admitting-privilege law. The Fifth Circuit had declared the law valid despite Whole Woman's Health, in which the Court declared invalid a similar Texas law, drawing some arguably specious distinctions. The Court (with the Chief joining Ginsburg, Breyer, Sotomayor, and Kagan) stayed the Fifth Circuit order and reinstated the injunction in February.

I have to think this is a reversal, because there is no meaningful way to distinguish this law from the Texas law in Whole Woman's. If Roberts wanted to take the air out of WWH and let the law take effect, he would have denied the stay and voted to deny cert. Now perhaps he is setting the Court to overrule Whole Woman's and this is a power move--"only we can ignore or overrule our precedent." But I would expect that Roberts values "institutionalism" enough that he would not want to overrule a three-year-old decision.

The Court did grant a cross-petition in the case to consider whether medical providers can so easily assert third-party standing on behalf of all current and potential patients. This was a point in Thomas's WWH dissent.

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."