Eugene Volokh's Blog, page 123

[Jonathan H. Adler] All Vapes Are Flavored Vapes, Some Just Have Cigarette Flavors

[A plea for more accurate descriptions of non-combustible nicotine products.]

Why do we only call some vaping products "flavored"? I ask because every vaping product on the market is flavored. Those that taste like tobacco have flavor added just like those that taste like menthol or vanilla or berries. So some vaping products taste like combustible tobacco products (with either tobacco or menthol flavor) and some do not. It is possible to make unflavored vaping products, but there is no market for such products so no one does.

In order to be more accurate--and better communicate the underlying reality--I would suggest a revised nomenclature: We should refer to vaping products as either cigarette-flavored (i.e. tobacco and menthol) and non-cigarette flavored. This would be more accurate and, insofar as there are any health concerns about flavor additives, make clear that there are no unflavored products (and also that the FDA "deemed" vaping products to be tobacco products; they do not actually contain tobacco).

This change in nomenclature would also help clarify the nature of the FDA"s policy choice to only consider approving vaping products that taste like cigarettes. It might also raise further questions about the wisdom of the FDA's approach. After all, the FDA is denying smokers the ability to transition away from smoking by using products that would sever the connection between nicotine and the taste of cigarettes. The FDA is also ensuring that insofar as youth or other experiment with vaping, they are using products that taste like cigarettes.

This change in nomenclature might also help some people understand why there is a growing body of evidence that non-cigarette-flavored vaping products can help smokers quit (by helping them associate nicotine with a different flavor, and may pose less of a "gateway" risk for smoking, particularly for youth. Restricting non-cigarette vaping flavors appears to increase smoking, particularly among youth.

Perhaps clarifying the language will help clarify the policy choices the FDA and others are making.

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[Eugene Volokh] "Necessary to Maintain Peak Lethality"

From an April 1 Justice Department press release:

Today, a Federal Judge accepted a guilty plea to destruction of records in a federal investigation from a former employee of a contractor that provided operation and maintenance services to the U.S. Army Corps of Engineers for U.S. military installations in South Korea.

According to the information filed in the Western District of Texas, in or about July 2021, David Cruz, 37, deleted text messages with Hyuk Jin Kwon and Hyun Ki Shin. Kwon and Shin were separately charged ‌for fraud and conspiring to rig bids and fix prices on millions of dollars in maintenance and repair subcontracting work provided to the U.S. Army Corps of Engineers in South Korea and remain fugitives. At Kwon's suggestion, Cruz deleted text messages after receiving a litigation hold notice from his employer requiring him not to destroy or delete communications. Cruz then covered up the deletion of those text messages after being specifically advised by his employer that there was an ongoing federal investigation.

In the deleted text messages, Cruz discussed with Kwon and Shin the need to get additional bids from their competitor to satisfy the U.S. Army Corps of Engineer's competitive bidding requirements for subcontract work. Kwon had previously told Cruz that Cruz should contact him instead of requesting bids directly from Kwon's competitors….

"Bid rigging and other acts of fraud against the U.S. Army not only undermine the integrity of critical procurement efforts but also put our Soldiers at risk by providing them capabilities and services which do not meet the high standards necessary to maintain peak lethality," said Special Agent in Charge Michael DeFamio of the Department of the Army Criminal Investigation Division (Army CID), Far East Field Office….

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[Josh Blackman] Today in Supreme Court History: April 14, 1873

4/14/1873: The Slaughter-House Cases argued.

 

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[Eugene Volokh] Monday Open Thread

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[Ilya Somin] Over Eighty Universities File Amicus Brief in Case Challenging Trump's Speech-Based Deportations of Non-citizen Students

[It's a good step. But the schools should also file their own lawsuit challenging this awful policy.]

(NA)

In a previous post, I urged universities to band together to file a lawsuit challenging Donald Trump's policy of speech-based deportation of foreign students and academics. So far, I have had little, if any, success in persuading schools to do so.  Many individual academics have expressed support for the idea (originated by the faculty of the Tufts Fletcher School of Law and Diplomacy), but no university administrations have acted on it.

Still, I am happy to see that 86 colleges and higher education associations  filed an amicus brief in a case challenging the deportations filed by the the Knight First Amendment Institute on behalf of the American Association of University Professors (AAUP) and the Middle East Studies Association (MESA).

Notable institutions joining the brief include Fordham, Georgetown, the Association of Catholic Colleges and Universities, Swarthmore, and my undergraduate alma mater Amherst College, among others. This is one of the very few issues on which Amherst agrees with traditional rival Williams College (which also joined the brief)!

While I commend the schools that joined the brief, it is not an adequate substitute for filing a lawsuit of their own. The case filed by AAUP and MESA could get thrown out of court on procedural grounds - most notably because court might hold that these groups are not clearly or directly enough harmed by speech-based deportations to get "standing" to sue. By contrast, universities have a strong basis for standing to challenge the deportation of students and employees based on the fact that deportation of the former causes them to lose tuition funds, and deportation of the latter causes them to lose valuable labor. That's particularly true of the many schools whose students or employees have already been targeted for speech-based deportations.

To be clear, I believe AAUP and MESA do deserve to get standing, in part because of my general opposition to strict standing restrictions. But I am not sure whether federal courts will agree. Universities have a clearer case for standing.

If universities are not willing to stand up for the free speech and academic freedom of their students and faculty, then what, if any, values do they stand for? Now is the time for schools to use their standing rights to stand up and be counted fighting for a just cause.  Perhaps that takes the "standing" metaphor too far; but I trust readers will get the point.

In earlier posts, I have explained why deportation and other immigration restrictions are not exempt from the constraints of the First Amendment, and why speech-based deportations pose a serious threat to free speech and academic freedom on campus - and not just that of foreign students and faculty.

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[Ilya Somin] Blackfeet Nation Indians File Lawsuit Challenging Trump's Canada Tariffs

[They argue the tariffs violate the constitutional separation of powers and their tribal treaty rights.]

(Blackfeet Nation)

I missed this when the case was first filed. But two members of the Blackfeet Nation, a Native American tribe, have filed a lawsuit challenging Donald Trump's Canada tariffs on constitutional grounds, and also because they violate tribal treaty rights:

Two citizens of the Blackfeet Nation on April 4 filed a lawsuit against the federal government, alleging tariffs the Trump administration is imposing on Canada violate the U.S. Constitution and tribal treaty rights.

State Sen. Susan Webber, D-Browning, and Jonathan St. Goddard, a rancher on the Blackfeet Reservation, named the U.S. Department of Homeland Security, Secretary Kristi Noem and the United States of America in the suit, which was filed in Montana federal district court. The plaintiffs are represented by Monica Tranel, who ran as a Democrat for Montana's western congressional seat in 2022 and 2024….

This lawsuit specifically pertains to several Executive Orders, including one Feb. 1 that expanded an emergency declaration to include "the flow of illicit drugs" across the U.S.-Canada border and one April 2 that announced global "reciprocal tariffs." The lawsuit also regards two Feb. 10 proclamations that impose tariffs on steel and aluminum products.

Plaintiffs allege the orders violate the U.S. Constitution, which gives Congress, not the president, the power to regulate commerce. Trump declared several national emergencies (due to U.S. trade deficits and to the flow of illegal drugs over the Northern border) and invoked the International Emergency Economic Powers Act to issue tariffs. But the two Blackfeet citizens say the president had no legal basis to do so, arguing the IEEPA statute does not include the power to tariff….

Complainants in the Montana case further allege the Canada tariffs violate the Jay Treaty, which was signed in 1794 by the U.S. and Great Britain to ease Revolutionary War tensions. While the treaty primarily focused on the two countries, it also recognized the rights of Native Americans to freely cross over the U.S.-Canada border. It also stipulated that American Indians were not to pay duties or taxes on their own goods when crossing the border.

The plaintiffs' complaint in Webber v. Department of Homeland Security is available here.

This lawsuit targets only various tariffs imposed on Canadian goods, and is therefore much narrower than the case the Liberty Justice Center and I are about to file challenging the entirety of Trump's "Liberation Day" tariffs. But there are important overlaps between the arguments in the two cases, most notably with respect to executive usurpation of congressional authority, and the issue of whether the IEEPA authorizes the imposition of tariffs at all (we say not).

I think the Blackfeet plaintiffs would also do well to raise the issue of whether the major questions doctrine applies to the various tariffs against Canadian goods. I have previously argued that imposing massive new tariffs on one of our biggest trading partners does so qualify, even if it is not quite as obviously a "major" economic and political issue as the global trade war started by the "Liberation Day" tariffs.

I lack the expertise needed to assess the argument that the Trump tariffs violate Native American treaty rights. But it does strike me as highly plausible, at the very least.

I wish the Blackfeet plaintiffs every success with this case. It is not just Native American tribes, but all Americans who have an interest in preventing the executive from imposing massive unconstitutional tariffs on goods imported from our northern neighbor and major trading partner.

UPDATE: The original version of this post had an incorrect link to the complaint in the case. I apologize for the mistake, which has now been fixed.

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[Josh Blackman] Today in Supreme Court History: April 13, 1896

4/13/1896: Plessy v. Ferguson argued.

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[Josh Blackman] Today in Supreme Court History: April 12, 1945

4/12/1945: President Harry Truman's inauguration. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[White House press passes, Wikipedia edits, and same-sex weddings.]

New on the Short Circuit podcast: We recorded an episode at our tenth anniversary show last week. Hear from Eugene Volokh and Raffi Melkonian about video dissents and one arbitration to rule them all.

California assesses a tax on in-state hospitals that it uses to generate matching federal Medicaid funding and then distributes the funds as supplemental payments to hospitals treating Medicaid patients. The funds are supplemental, acting as a bonus to hospitals for treating the state's Medicaid patients. But wait! Out-of-state hospitals treat California Medicaid patients and can't get any of those supplemental payments. D.C. Circuit: Which is totally fine. Because it's merely a supplement after the base costs are paid (to in-state and out-of-state providers alike), it doesn't discriminate against interstate commerce. Dissent: But it violates a federal regulation that requires the state to pay for out-of-state services to the same extent it does in-state services. Two types of passes are available for journalists wishing to access the White House Press Area: hard pass (expedited security line, no escort needed) or day pass (daily application and escort from gate to press area). Hard passes are only available to reporters already accredited by the SCOTUS or congressional press galleries. First Amendment violation? D.C. Circuit: No. It's a reasonable and viewpoint neutral policy for accessing a nonpublic forum. An expelled Tar Heel alleges (among other things) that after a fellow UNC student testified against him in a Title IX hearing, he is somehow allowed to cross-examine only her attorney, not the complainant herself. Fourth Circuit: Going forward, some kind of cross-examination of witnesses must be available in Title IX proceedings at state universities, even if just by a neutral panel. For now, though, a mishmash of immunity doctrines bar the expellee's claims for damages. He might still be able to get equitable relief. To discourage vexatious litigation, prisoners who have filed three or more particularly weak lawsuits can't file more federal lawsuits without paying the usual filing fee, unless they're in "imminent danger of serious physical injury." Which one Virginia prisoner might be, holds the Fourth Circuit, at least when he's alleged that prison officials made him spend six hours in the cold in a dog cage, and they continue to retaliate against prisoners who complain about mistreatment. Thankfully, you don't see too many concurrences these days about the 13th Amendment's authorization for Congress to pass laws against slavery. But if you want to read a sad Fourth Circuit case affirming convictions under the Trafficking Victims Protection Act, which definitely covers forced labor inside the home as well as outside it, here you go. The caption caused your middle-aged summarist to do a double-take, but the appellant referenced in this unpublished Fourth Circuit decision is a different convicted murderer named Willie Horton. Texas judge refuses to perform same-sex weddings; will perform opposite-sex weddings. State Commission on Judicial Conduct says that judges should not conduct their private activities in ways that could suggest they're biased. Judge sues the Commission under the First Amendment. Fifth Circuit: But does that rule even apply to this? Question certified to the Supreme Court of Texas! This rather anticlimactic Fifth Circuit decision is about strip clubs. Sounds fun at first, but all you'll get is an eyeful of res judicata. Are the officers who arrested a journalist for asking questions of a government employee entitled to qualified immunity in the journalist's First Amendment lawsuit? District court (2020): Yes. Fifth Circuit (2021): No. Fifth Circuit (2022): Still no. Fifth Circuit (en banc, 2024): Wait, actually, yes. Supreme Court (2024): Maybe rethink that one, guys. Fifth Circuit (en banc, this week): Shan't. It's still yes. Any case where there's a preliminary injunction ordering the defendant to stop making edits to its opponent's Wikipedia page and to "[r]emove all images of the cartoon East Asian woman vendor from its webpages" is a case where things have gotten a little out of hand—and also, per this unpublished Fifth Circuit decision, one where the injunction violates the First Amendment. Texas trespass law requires property owners who want to exclude people carrying firearms from their property to say so via a big and very specific sign. Fifth Circuit (unpublished): And requiring them to put up that sign creates a plausible First Amendment injury. (Dissent: They put up the sign because they agreed with it. How is that a First Amendment problem?) Can faith-based organizations state a claim under RLUIPA by alleging that local land-use decisions effectively prevented them from visiting the graves of their enslaved ancestors? Fifth Circuit: Under RLUIPA and under a bunch of other stuff as well. Sixth Circuit: How in the world could this prison guard have been deliberately indifferent to a prisoner's medical needs when the guard didn't even work for the two days when medical attention was denied? (But as for the part where that same guard caused those injuries in the first place for seemingly no good reason? Yeah, no qualified immunity there.) If you loved Brown I, Brown II, Brown III, Brown IV, and Brown V, then boy has the Sixth Circuit got a treat for you. Iowa prisoner injures his knee. It gets worse and worse—his hip also starts to hurt and eventually his other knee goes south as well. Along the way prison staff recommend a knee brace and ibuprofen but pooh-pooh various requests for MRIs. When he finally gets the MRIs, they lead to surgery. He claims that one reason for the delay was the possibility that he might get parole, which would have obviated the prison's responsibility. District court: And there's enough evidence to make this a question of fact. To a jury! Eighth Circuit (over a dissent): Affirmed. One thing you'll learn from the latest new-pronouns-don't-tell-mom case, this time from the Ninth Circuit, is that identifying fundamental rights isn't like qualified immunity. So there's that. If you're curious about how to write jury instructions in a Hobbs Act extortion prosecution, this little ditty from the Eleventh Circuit (where a Dixie County, Fla. defense attorney successfully overturns a conviction) should satiate that desire. Black HOA board member complains of racist treatment by others in the HOA, including selective enforcement of HOA rules and fees, calling people of color "monkeys," and saying "bye, Felicia" to her when that is not her name. District court: The laws you're bringing up—the FHA and Sections 1981 and 1982 of the Civil Rights Act—don't even apply to these facts. Case dismissed. Eleventh Circuit: "Home ownership has long been viewed as the heart of the American Dream." Case undismissed. And in en banc news, the Eleventh Circuit will not reconsider its earlier decision holding that Title IX does not provide an implied right of action for sex discrimination in employment. Two judges concur in the denial, explaining that sex discrimination in employment is a matter for Title VII, while five judges dissent from denial.

IJ's first case way back in 1991 was on behalf of African-style natural hair braiders who challenged Washington, D.C.'s requirement that they get full cosmetology licenses to practice their craft. After we won that case, we took the fight nationwide, and this week New Mexico became the 37th state to exempt natural hair braiders from their cosmetology licensing regime. Learn more here.

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[Josh Blackman] Should A Federal District Court Hold Contempt Proceedings While An Emergency Appeal Is Ongoing?

[Maybe judges should hold off on ordering the executive branch to show cause until the Supreme Court finishes its review.]

The Supreme Court's decision in Trump v. J.G.G. divested Judge Boasberg of the jurisdiction to further adjudicate the matter. It also cast in serious doubt whether he could continue his contempt proceedings against the executive branch. Earlier this week, I wrote "it is not clear if the District Court has power to hold the executive branch in contempt where it lacks jurisdiction over the case." I still don't know the answer to that question, but as a practical matter, Judge Boasberg will likely stand down.

My colleague Seth Barrett Tillman ruminated on holding litigants in contempt in the context of emergency orders.

If the DOJ refused to abide by a federal trial court judge's order, and that order was granted ex parte, but subsequently it was set aside, then what should the judge do? My view is that holding the prevailing party in contempt should not be predicated on mere disobedience standing alone. Contempt's normative justification is tied to fair play and due process, but where the process is ex parte, contempt is too harsh. What is driving the public mind (or part thereof) to press for contempt in the recent immigration cases is that a large part of the public believes the Trump-47 policies are lawless or heartless or both. But if the policies are lawless, that's a merits determination. If the order was set aside on appeal, then the merits standing alone should not be sufficient cause to elicit a contempt order. As for heartless, I am sure that the majority of federal judges think that too. But that is a policy and values judgement—we hold elections to make those decisions—we do not issue contempt citations for being on the wrong side of a naked moral judgment untethered to established law.

Where an ex parte TRO is set aside, I think a federal trial court judge has a narrow window of opportunity to hold a disobedient defendant in contempt. The judge must establish that the defendant's conduct during and in the course of the litigation was illegal or inequitable. Here I am speaking not to the litigant's underlying or out-of-court conduct, but his conduct in relation to his representation before the trial court. The conduct would have to be something akin to unclean hands (albeit, that doctrine usually applies to plaintiffs' seeking equitable relief, as opposed to defendants' opposing an application for equitable relief).

To put it another way, when a trial court's ex parte TRO is on its way up through the court system on appeal, a judge should refrain from discussing contempt, in full public view, for noncompliance during that time. After the appellate process is over, then that's the time to consider a contempt citation, and it should be done in full public view. Otherwise, the judge will look vicious, officious, and biased. And that cannot be right.

As usual, I find Seth's reasoning persuasive. Let me extend Seth's point a bit further.

Imagine two counterfactuals. What if Judge Boasberg had held the executive branch in contempt before the Supreme Court ruled that he lacked jurisdiction? Maybe he sought to fine, or even incarcerate a DOJ lawyer, or someone higher up in the administration. Alternatively, what if the contempt proceedings elicited information that could have caused the Supreme Court to rule differently. For example, the judge demanded that the Secretary of Homeland Security testify in open court about classified matters. These hypotheticals raise what I think has been an unstudied question: should a federal district court even hold contempt proceedings while an emergency appeal is ongoing? In other words, if a case is rocketing up the shadow docket, should judges hold off on ordering the executive branch to show cause until the Supreme Court finishes its review?

I think the answers to these questions have to be no and yes. The entire case went from the trial court to the Supreme Court in about a month. There really was no need to hold any contempt proceedings while the appeal was ongoing--especially in light of the fact that the government contested the court's jurisdiction. But more fundamentally, the question of whether the government engaged in contempt very much turns on whether the court's order was lawful.

It is true that in the normal course, the way to challenge a trial court's ruling is through the appellate process. But this was not a normal case. Here the court instructed a coordinate branch of government how to exercise its constitutional authority when there was no practical time for an appeal. Can it be that a single district court judge can exercise absolute authority over the executive branch, even for a limited time? Should the government be held in contempt for not immediately turning planes around over international waters? At best for the court, this is in something of a zone of twilight where the allocation of powers between the judiciary and executive branch is unclear. I would remind everyone that the Truman Administration did not immediately obey an unstayed district court order in the Steel Seizure case. At worst, Judge Boasberg's order, issued orally without the benefit of full party presentation, should not form the basis for a contempt citation.

The first phase of the Trump litigation was unappealable TROs. The second phase entailed preliminary injunctions that were appealed to the Supreme Court, but were vacated through some compromises. The third phase, I predict, will be hostile contempt proceedings where district court judges try to reassert their authority over the executive branch, even in the face of SCOTUS reversals. We may not have a special counsel like Robert Mueller to launch inquisitions against the Trump Administration, but district court judges in D.C. and Maryland will gladly assume that role. Soon enough, we will be talking about "obstruction of justice" all over again. We might spend the next four years inquiring about what Trump knew about the airplanes. This very well might form the basis of future articles of impeachment. It is 2017 all over again.

I'll close with an unpopular opinion. When a judge feels the need to hold the executive branch in contempt, he should recuse and let another fresh judge decide if the contempt proceedings are justified. I think it is tough for a judge to simultaneously decide which party has the better reading of the law, while lurking in the background is the question of whether the government flouted the court's order about that disputed question of law. I made this point concerning an unusual case from South Dakota where a District Court judge sought to hold the U.S. Marshal in his contempt. The District Court Judge actually appointed a special prosecutor to prosecute the Marshal, akin to the Donziger case. But to his credit, the District Court judge recused and let another judge handle the matter. At the time, I opined:

Recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

Unsurprisingly, cooler heads prevailed, and the new judge dismissed the contempt proceedings against the Marshal.

If any further contempt proceedings are to be had, I think recusal would be appropriate here for Judges Boasberg, Xinis, and any other judge seeking to hold the administration in contempt. No matter how hard a judge tries, these sorts of cases become personal.

The case would not be J.G.G. v. Trump. It would be J.E.B. v. Trump. And Trump has some experience with moderates named Jeb!

There is no harm in letting a fresh set of eyes review the matter.

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