Eugene Volokh's Blog, page 142

[Ilya Somin] Chief Justice John Roberts Rightly Condemns Trump's Call to Impeach Judges who Rule Against Him

[There is no justification for such impeachment efforts.]

Chief Justice John Roberts (SCOTUS)

 

Earlier today, Supreme Court Chief Justice John Roberts issue a statement condemning President Trump's calls for impeachment of judges who rule against him:

For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.

I have many differences with Roberts regarding various rulings he has made. But I agree completely on this issue.

I also agree with prominent conservative legal commentator Ed Whelan, of the Ethics and Public Policy Center:

1. I'd be open to impeaching judges for persistent bad-faith or wild rulings. Nothing remotely like that here. Indeed, from what I have seen, Judge Boasberg's critics have yet to make a clear and compelling case that his order was wrong.

2. Impeachment threats are at best performative nonsense. Even worse, they may provoke threats of violence against judges and family members.

Ed Whelan is far more conservative than me. We differ on many legal and policy issues, but agree here because it's a basic rule of our legal system that cuts across party and ideological lines (or should be).

Like Ed, I think Judge Boasberg's rulings in the Alien Enemies Act case are largely right. Regardless, neither they nor other recent rulings against Trump's policies come even remotely close to the kinds of abuses of power that might justify impeachment.

I would add that the passages in Chief Justice Roberts' year-end report about the danger of defiance of judicial orders now seem especially prescient and relevant, as the administration seems to be moving in that direction. I warned about that threat at the time the report came out.

Co-blogger Josh Blackman is critical of Roberts' statement for reasons that strike me as baseless "whataboutism." Yes, some Democrats have previously called for judicial impeachments without good reason. But the threat posed by such demands is obviously greater when it comes from the president of the United States, than from political activists or congressional backbenchers.

Josh's comparison to the two impeachments of Trump is even more off-base. Those impeachments were undertaken for compelling reasons. The first one arose because Trump usurped Congress's spending power, and also likely committed a crime in the process. The second was even more obviously defensible: Trump undertook a massive assault on our constitutional order by trying to use force and fraud to stay in power after losing a presidential election. And, yes, in that case, too, he committed crimes in the process, though impeachment does not in fact require a violation of criminal law.

There is no valid comparison between either of these impeachments and efforts to impeach judges merely for ruling against the administration in power. None.

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[Sasha Volokh] Dean Treanor and Georgetown's First Amendment rights

[Dean Treanor is right to assert Georgetown's First Amendment right to "teach DEI" in the face of Trump Administration threats.]

I'm almost two weeks late to this party, but I wanted to congratulate Dean William Treanor of Georgetown Law for his strong response to the letter sent by Interim U.S. Attorney Ed Martin insisting that Georgetown Law "eliminate[] all DEI from [the] school and its curriculum", and threatening not to hire any Georgetown graduate if it fails to do so.

Dean Treanor writes:

The First Amendment . . . guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university's First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.

This is a bedrock principle of constitutional law—recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from 'exercising control over the content of school curricula.' . . .

Given the First Amendment's protection of a university's freedom to determine its own curriculum and how to deliver it, the constitutional violation behind th[e Administration's] threat is clear, as is the attack on the University's mission as a Jesuit and Catholic institution.

I like Georgetown Law (I taught there as a Visiting Assistant Professor from 2006 to 2008, before Treanor's tenure as dean), and though I haven't been a big fan of Georgetown Law's recent approach to free speech, I hope other schools resist the Administration's demands similarly forcefully. (Ed and I were co-clerks at the Institute for Justice in Summer 2001, but I'm on Dean Treanor's side here.)

Mainly, though (because this involves "DEI" and "First Amendment" in close proximity to each other), this is a good excuse for me to plug my own (slightly related) article, just published in Florida Law Review—Expressive Discrimination: Universities' First Amendment Right to Affirmative Action. I've blogged about this before (Parts 1, 2, 3, and 4), but I'll reprint the Introduction below.

Introduction

June is always a big month for Supreme Court watchers, but the last two days of June 2023 were more interesting than usual for constitutional and civil rights law. In one case, the Court made race-conscious affirmative action—which had long been only grudgingly accepted—even more difficult. But the decision in another case paves the way for an argument that private universities have a First Amendment right to engage in affirmative action.

On June 29, 2023, the Supreme Court decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, cutting back on the legality of race-conscious affirmative action in universities and all but overruling Grutter v. Bollinger. This was both a statutory and a constitutional opinion: all universities that accept federal funds are governed by Title VI of the Civil Rights Act of 1964; public universities are also governed by the Equal Protection Clause. But the two have been interpreted to impose identical standards, so the distinction didn't make much practical difference.

The very next day, the Court decided 303 Creative LLC v. Elenis. Lorie Smith, a website designer, decided to enter the wedding-website business; she didn't want to create websites promoting gay weddings or otherwise contradicting her beliefs, but that could have opened her up to prosecution under the Colorado Anti-Discrimination Act. The Supreme Court held that the statute couldn't be applied to force her to create websites she disagreed with. A website is just words and images—"pure speech." If the state made Smith create a website for a gay marriage—just because she was willing to create one for a straight marriage—that would be compelled speech, which would violate her First Amendment rights.

These two lines of doctrine don't usually talk to each other, but they should—especially now.

Suppose you're a private-university president who wants to have affirmative action for faculty hiring or student admissions (or both). You've tried to fit your program within the confines of Grutter. You've steered clear of impermissible interests such as racial balancing or remedying societal discrimination, avoided illegal methods such as quotas or inappropriately numerical targets, and stuck to approved interests such as the value of diversity. Then, on June 29, your general counsel said such efforts should be curtailed or abandoned. After sleeping on it—you sleep late the next morning, so you don't wake up until after the Supreme Court has released its opinions—is there anything you can do on June 30?

Yes, there is.

Lorie Smith's websites were pure speech. But so is virtually all your university's activity. Everything significant that universities do—lectures, homework, exam-taking, paper-writing—boils down to talking and writing. That includes the all-important transcript and diploma, which are just the university speaking to certify what the student has accomplished. If this isn't pure speech, what is?

You think back to an older case: Boy Scouts of America v. Dale, where the Supreme Court upheld the Boy Scouts' exclusion of a gay assistant scoutmaster even though this violated an antidiscrimination statute. The Boy Scouts engaged in expression, part of which included a position against homosexuality. Given this position, forcing the organization to accept a gay person in a leadership position "would, at the very least, force [it] to send a message, both to the youth members and the world, that [it] accepts homosexual conduct as a legitimate form of behavior."

Boy Scouts built on a previous case—the unanimously decided Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which upheld the right of parade organizers to exclude an LGBT Irish-American organization from the parade even though this violated an antidiscrimination statute. The state courts interpreted this as an exclusion of LGBT people, but the Court recognized that this was an attempt to alter the parade organizers' message. Organizations have the right to choose their message, and sometimes the speaker's identity is the message. This is why you can limit yourself to actors of color for Hamilton or cisgender female contestants for a beauty pageant.

Freedom of speech implies a right against compelled speech: the right to speak includes the right to choose what to say, i.e., the right not to say certain things. The First Amendment also includes a right of expressive association: people have the right to group together to express their views. In the expressive-association context: the right to speak in groups includes the right to choose whom to speak with, i.e., the right to choose whom not to associate with in speaking. We can call this principle—the marriage of the expressive-association right with the right against compelled speech—the principle of "expressive discrimination."

What does this mean for your university's affirmative action programs? Your university is a speaking organization whose "message" may include teachings about diversity. The university speaks not only through its administration but also through its entire scholarly community, which includes faculty and students (perhaps also some staff). Using an antidiscrimination law such as Title VI or 42 U.S.C. § 1981 to force the university to speak through people not of its choosing—which could mean a faculty and student body that don't match the university's notions of diversity—could impede the university's ability to speak. The university's expressive-association right can include the ability to take race into account to create a university community with the desired amount or type of diversity.

Previously, one could have argued that the Boy Scouts expressive-discrimination principle was limited to noncommercial, volunteer organizations such as parades and the Boy Scouts and that it wouldn't protect the discrimination in contracting required for affirmative action for faculty and students. But this is where 303 Creative helps: the Court reaffirmed the right against compelled speech in an economic, for-profit context. Lorie Smith "offers her speech for pay and does so through . . . a company in which she is 'the sole member-owner.' But none of that makes a difference."

The legal landscape on June 30 is thus more promising than it was on June 29. You can assert an expressive-association right to choose your faculty and students because those are the speakers in your pure-speech organization. And this right can trump mere statutory antidiscrimination policies.

And just in time! The day before yesterday, you could simply rely on your affirmative action program's legality. You've never before needed a constitutional theory that would let you ignore the statutes, but now you do. The expressive-association theory can give you what you need and more: if this works, not only can you go back to running your previous programs, but now you can run any affirmative action program you like, even one that would have been illegal under Grutter. If you like, you can use quotas and pursue outright racial balancing or try to remedy societal discrimination, rather than be limited to the single rationale of the educational benefits of diversity. If the government can't force the Boy Scouts to have a gay assistant scoutmaster or force Lorie Smith to design a pro-gay-marriage website, what right does it have to tell your university what speakers to choose?

If only Harvard's lawyers had argued this First Amendment theory. This should be the next frontier in private-university affirmative-action litigation—or the basis of a private university's defense next time it gets sued.

*     *     *

Part II of this Article presents this theory and explores some of its complexities.

The Supreme Court has never endorsed a strong form of expressive-association rights, whereby restrictions on an expressive organization's ability to choose its members is a per se burden. Antidiscrimination cases such as Bob Jones University v. United States and Roberts v. United States Jaycees are still good law. Your expressive-association claim will thus look better if your facts look a lot like those in Boy Scouts. But then you have a problem. The assistant scoutmaster was an authority figure who spoke on behalf of the organization and was expected to inculcate the organization's values. Many universities aren't like that—at least not with respect to faculty and students—because they have strong faculty- and student-based academic-freedom and free-speech norms.

The universities that are the best fit for an expressive-association theory are those that expect or require faculty and students to promote university values, which might require weakening academic-freedom and free-speech norms. Other universities might be able to use the theory, but it won't be as good a fit, so the result will be harder to predict.

Part III addresses various follow-on questions:

Does the racial angle matter, given that the other cases arose in the context of sexual-orientation discrimination? (The cases don't support treating these different types of discrimination differently.) Does the market angle matter, since the other cases arose in the context of volunteer or nonprofit activity? (303 Creative suggests it doesn't.) What about laws such as Title VI, which don't regulate universities outright but merely impose conditions on recipients of federal money—bringing into play the looser constraints of the unconstitutional conditions doctrine? (This is the greatest hurdle. But the unconstitutional conditions doctrine bars pulling funding from the entire university based on discrimination by any single unit.) Could public institutions use this theory too? (No.)

Part IV asks how far this theory can go. Based on recent litigation, I identify three flexibilities in the doctrine, which help us understand what doctrinal movement is plausible.

One is what it takes to make a substantial burden on an association's expression. Another is what governmental interests can be characterized as "compelling," so as to overcome the expressive-association right under strict scrutiny. But the biggest question is what activities are characterized as "expressive." That's a threshold issue—if the action isn't expressive, then First Amendment analysis isn't even relevant. You can't unilaterally make nonexpressive conduct, such as tax avoidance, expressive by talking about it or claiming civil disobedience. This threshold question preserves the core of antidiscrimination law in the vast majority of cases, even for expressive associations. But some activities, such as flag burning or parades, are inherently expressive. The test has to do with social expectations and how the particular conduct is likely to be perceived. This test is flexible, and different attitudes on the part of courts can lead to different results.

*     *     *

The key takeaway, though, is that—at least in private education, and possibly more broadly—the First Amendment expressive-association theory is potentially liberating for affirmative action. The expressive-association cases have been criticized as giving a free pass to racists, sexists, and homophobes. (Perhaps; but they have rights too.) But affirmative action can dwarf all of that. For decades, affirmative action has tried to fit into the constraining framework of Equal Protection/Title VI—satisfying neither affirmative-action opponents who advocate colorblindness nor proponents who would prefer programs forthrightly grounded in reparations for past injustices or remedying current inequalities. Now that Equal Protection/Title VI doctrine has come down strongly for colorblindness, the First Amendment theory has the potential (at least in some private universities) to convert affirmative action from a grudgingly allowed concession to a strongly protected right.

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[Eugene Volokh] Ninth Circuit Reverses Probation Sentence for Transgender Hacker

["Paige Thompson committed the second largest data breach in United States history at the time, causing tens of millions of dollars in damage and emotional and reputational harm to numerous individuals and entities."]

A short excerpt from the 9,000-word U.S. v. Thompson, decided yesterday by Ninth Circuit Judge Danielle J. Forrest, joined by Judge Johnnie B. Rawlinson:

Paige Thompson committed the second largest data breach in United States history at the time, causing tens of millions of dollars in damage and emotional and reputational harm to numerous individuals and entities. The district court correctly calculated Thompson's sentencing range under the Federal Sentencing Guidelines (the Guidelines) to be 168 to 210 months of imprisonment. It then granted a roughly 98% downward variance to time served (approximately 100 days) and five years of probation. Because the district court made clearly erroneous findings and did not properly weigh the 18 U.S.C. § 3553(a) sentencing factors, we conclude that the sentence it imposed is substantively unreasonable, and we vacate and remand for resentencing….

Before the events at issue, Thompson worked as a Systems Engineer at Amazon Simple Storage Service (S3). S3 is "an object storage service" offered to businesses by Amazon Web Services (AWS). Over two years after her employment at Amazon ended, Thompson began hacking AWS customers' accounts. She used a virtual private network service and The Onion Router network to anonymize her activity. Using a programming script, she scanned millions of publicly available IP addresses associated with AWS for vulnerabilities in their systems.

When Thompson found vulnerable accounts, she queried them for security credentials and saved those credentials on her computer. The credentials allowed Thompson to authenticate directly into AWS customers' cloud-computing environments. Once inside, if the credentials permitted, Thompson ran a "sync" command to download data from customers' cloud storage. In total, Thompson got credentials from at least 200 entities and stole data from at least 30 of them. For example, Thompson obtained Capital One's security credentials and downloaded personally identifying information (PII) of 98 million Americans.

Thompson then compressed and stored the data stolen from AWS customers on her computer, and she researched additional storage options. While Thompson did not sell or distribute any stolen information, she did research ways to profit from the data, bragged about possessing it, and encouraged others to hack vulnerable accounts. She also blamed her breaches on the companies' inadequate cybersecurity.

In addition to downloading private data, Thompson used AWS customers' computing power to mine cryptocurrency—a cyberattack known as "cryptojacking." Using the stolen security credentials, Thompson created new virtual servers in customers' cloud environments. She deployed cryptocurrency miners inside the virtual servers and mined cryptocurrency into her own virtual wallet. Cryptomining is expensive because it requires significant computer power. AWS customers were billed for the electricity used by Thompson's cryptojacking, while Thompson received the cryptocurrency payments. Thompson deleted the evidence of her cryptojacking from the companies' computer logs. …

In June 2019, Thompson decided to "dox" herself by sending unsolicited private Twitter messages about her data theft to cybersecurity professional Kat Valentine. The messages included links to the data and threats to distribute it. Valentine reported the data breach to Capital One. Capital One confirmed that its customers' data had been stolen, and it contacted the FBI. Less than two weeks later, the FBI searched Thompson's house and arrested her….

Thompson went to trial in June 2022. The jury convicted her on one count of wire fraud (felony) and six counts of computer fraud and abuse (four felonies and two misdemeanors)….

At the outset of the sentencing hearing the district court noted the significance of this case and gave the sentencing hearing a theme, stating: "[M]y theme is that, 'The arc of the moral universe is long, but it bends towards justice.'" After commenting at length about his career and the evolution of the criminal justice system, the district judge calculated Thompson's offense level as 35 and her Criminal History Category as I, resulting in a Guidelines range of 168 to 210 months. Noting that it had considered Thompson's offenses, the Guidelines, and the § 3553(a) factors, the court then imposed the requested alternative sentence offered by Probation—time-served and five years of probation, with three of those years being home detention. The court also ordered Thompson to complete 50 hours of community service per year while she was on probation.

The district court stated that "the question of what is justice here is a really, really hard question." It agreed with the Government that others considering the costs and benefits of committing crimes like Thompson's might decide that "if [they] can get away with credit for time served of 100 days, with the possibility of making a couple hundred million dollars … to take the chance." The court also found that Thompson committed "a terrible crime" but that she did "not do[ ] it in [a] malicious manner," such "as somebody who gets th[e] information and immediately turns to monetizing it." The court further found that Thompson "was tortured and tormented about what she did" and "was caught before she did anything bad, or anything good."

The district court also discussed the treatment of transgender individuals in federal prison. While it praised BOP's policy changes as evidence of "[t]he arc of the moral universe bend[ing] towards justice," it voiced concerns about transgender women who have not had reconstructive surgery being housed in women's prisons and the possibility that BOP policies might change in future presidential administrations.

The court determined that Thompson's mental health and trauma provided some explanation for her behavior, and it observed that Thompson's case might be "one of those rare times when a person's involvement with the criminal justice system may have actually saved their life." The court proclaimed that it did not believe Thompson would reoffend. Indeed, the district court encouraged Thompson to take a day of reflection to "think about what you have to atone for, and what you've achieved." The Government appeals Thompson's sentence.

The panel majority concluded that the judge's sharp downward departure from the recommended Guidelines sentence was unreasonable (for more details, see the full opinion):

As noted, Thompson committed one of the largest data breaches in American history. She hacked into and stole dozens of companies' data, including PII of nearly 100 million Americans just from Capital One. She also used the companies' own computing power to mine cryptocurrency, causing their AWS bills to skyrocket while she kept the proceeds of her illegal conduct and deleted evidence of her cryptojacking from her victims' computer logs.

Ultimately, Thompson caused at least $40 million in damage, and significant non-monetary harm. Her private communications demonstrate that she knew her conduct was unlawful and could result in imprisonment. In fact, Thompson specifically mused in an online chat, "[H]ow am I not in jail?" She then blamed AWS customers for failing to adequately "protect[ ] their assets," and she encouraged others to hack vulnerable accounts.

On this record, the district court's findings minimizing the nature, circumstances, and seriousness of Thompson's offenses are clearly erroneous.

First, it was clear error for the district court to conclude that Thompson's actions were not "malicious." By her own words, Thompson specifically targeted AWS customers that she concluded had inadequate security and she encouraged others to do the same. She also blamed her victims' incompetency for her thefts. These actions are the definition of malicious.

Second, the district court's finding that Thompson did not do anything "bad" before she was caught is clearly erroneous. While Thompson did not monetize the stolen PII for identity theft or other separate crimes, the data breaches alone were wrong, and the scale of her criminal activity warrants a serious consequence. Moreover, Thompson's suggestion that an ultimate good has come from her crimes because the companies that she targeted have now improved their security, falls flat where she could have pointed out the security flaws that she discovered without stealing private information or using others' computing power to mine cryptocurrency.

Third, the district court's finding that Thompson was "tortured and tormented about what she did" is not supported by the record. Thompson bragged about her crimes, encouraged others to commit the same offenses, researched illicit credit card trading forums, and threatened to leak sensitive information to the public. If Thompson was distressed about her criminal conduct, she could have reported her hacking directly to the victim companies or the FBI—rather than encouraging others to engage in the same conduct and "doxing" herself on Twitter….

The district court considered that Thompson is transgender, autistic, and has suffered prior trauma in her life. Thompson's personal background and characteristics are, of course, proper considerations at sentencing, but they may not be the sole basis for the chosen sentence. And the district court also speculated that recent BOP policy changes about housing transgender inmates may be undone by a future presidential administration. Such speculation regarding BOP policy is improper, especially when it apparently carried the weight it did in this sentencing. {The BOP has since changed its policies regarding the incarceration of transgender persons. See Exec. Order No. 14,168 (Jan. 30, 2025). The district court may consider this non-hypothetical policy on remand, but, consistent with this opinion, it may not do so at the expense of a proper weighing of all the § 3553(a) factors.} …

As the district court explained, hacking is "not … a crime of passion that [just] happens." Fraud crimes like those at issue here typically are calculated, and, as a result, are particularly amenable to general deterrence. But, while the district court acknowledged the Government's argument that a low sentence would incentivize similar crimes, it does not appear that it gave this factor meaningful weight in selecting the sentence that it imposed. This was a clear error of judgment….

As for specific deterrence, the district court explained that Thompson had evolved over the course of her case and that it was confident she would not reoffend. While district courts generally are better positioned to assess a defendant's risk of recidivism, the record here reveals that the district court may not have considered all the information relevant to this point. At sentencing, the Government presented evidence that, while awaiting trial, Thompson withdrew for her own purposes approximately $40,000 that she cryptojacked that could have been used to compensate victims and that, after she was found guilty and was awaiting sentencing, she used her computer for unauthorized purposes and lied about it.

The district court did not address this evidence or the Government's arguments, nor did it make any findings regarding these incidents. The failure to consider this highly relevant evidence to Thompson's risk of recidivism was an abuse of discretion….

Judge Jennifer Sung's dissent disagreed on most of those points; interested readers can find it here, starting on p. 25.

Tania M. Culbertson and Andrew C. Friedman represent the government.

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[Josh Blackman] Chief Justice Roberts Speaks

Today, Chief Justice Roberts issued a statement:

For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.

This statement follows on the heels of the Judicial Conference meeting last week, in which Judges Sutton and Sullivan raised similar alarms about impeachment:

"Impeachment shouldn't be a short circuiting of that process," Sullivan said. "And so it is concerning if impeachment is used in a way that is designed to do just that."

U.S. Circuit Judge Jeffrey Sutton, an appointee of Republican President George W. Bush on the Cincinnati-based 6th U.S. Circuit Court of Appeals who chairs the Judicial Conference's executive committee, echoed those comments.

"One thing worth keeping in mind is if we dilute the standards for impeachment, that's not just a problem for judges," Sutton said. "That's a problem for all three branches of government."

I think we need a sense of perspective.

Last year Representative AOC and other members of Congress introduced articles of impeachment against Justices Thomas and Alito. As best as I can recall, Roberts said nothing about this. Likewise, the Federal Judges Association and the American Bar Association said not a word about the never-ending crusade against two members of the Supreme Court. These attacks were never about disclosures. These critics were trying to delegitimize the Court. Yet, everyone was silent.

Likewise, in 2023, Senator Ron Wyden told President Biden to "ignore" any ruling from Judge Matt Kacsmaryk concerning mifepristone. We aren't talking about turning planes around over international waters. This would be a ruling that could be timely appealed in the normal course. Yet Roberts did not say a word about this in his end-of-year address or anywhere else. The FJA, the ABA, and all the usual suspects were silent. To the contrary, the Judicial Conference acceded to the criticism of Judge Kacsmaryk by trying to force down a rule to take cases away from him! I realize that Chief Justice Roberts is hitting the panic button, but his protest has started a bit too late.

Taking a step back, I think the standard for the impeachment process has indeed been diluted. At least with regard to the presidency, the first Trump Administration demonstrated that nebulous offenses that are untethered to any actual crime were impeachable offenses. Remember "abuse of power"?

I think the lesson of the Samuel Chase impeachment is the right one. But I'm also someone who has carefully studied the two-century history of the Court. What do you do with a President who was subject to two impeachments, where countless norms were blown past to resist him? During the first trial, Roberts admonished members of Congress to not use harsh language! And Roberts couldn't even be bothered to preside over the second trial.

The Constitutional Crisis is a coin with two sides. Trump causes judges to overact, and judges cause Trump to overreact. Any resolution must be bilateral, not unilateral. Roberts could de-escalate the situation by promptly reversing some of these out-of-control lower court rulings. But instead, he would rather sit on his hands and pontificate. I've long said that the Chief Justice is living in a different reality than the rest of us. This episode proves it. There are three co-equal branches of government; the judiciary is not supreme.

Chief Justice Marshall had the good sense to avoid a confrontation with Presidents Jefferson and Jackson. But Roberts apparently thinks this sort of statement will make everything better. But every time Roberts puts pen to paper to avoid some perceived catastrophe, he usually invites an even greater one down the road. This is a lesson he has not learned during his tenure.

Update: A few people wrote to distinguish the AOC Articles of Impeachment from the more recent articles. They claimed that AOC and her colleagues charged Thomas and Alito with failing to disclose certain gifts, not recusing on certain cases, and violating other ethical standards.

Does anyone think that AOC and her colleagues would have filed these articles if Justices Thomas and Alito were liberals? No, they would not. How do I know that? Because Justice Ginsburg took trips and failed to disclose that hospitality. Justice Ginsburg wore a dissent collar on the bench to protest Trump's election. She made comments to the press about Trump, and then refused to recuse. Where was the outrage? Silence. More recently, Justice Sotomayor accidentally did not recuse from a case that involved her publisher. Justice Jackson also failed to properly file her disclosures. The world turns.

Is there a difference between impeaching a judge for his judgment in a particular case, and for his judgment about how to follow a recusal statute? I don't see much difference. In both cases, judges are exercising their discretion. If there is an actual crime, such as bribery, let an indictment be brought. But no one has even suggested this offense was committed.

I see the gravamen of the AOC resolution as a pretext. To the extent that AOC and others are citing alleged violations of ethical rules, they are in fact objecting to Thomas and Alito's substantive rulings. Any prosecutor, or indicter, can gin up charges to justify punishment. But the motivation to bring those charges is very different.

Trump is unique in that he says exactly what he is thinking. Other politicians engage in similar acts through locutions and workarounds. But Trump tells you exactly what he is thinking.

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[Josh Blackman] Today in Supreme Court History: March 18, 2008

3/18/2008: District of Columbia v. Heller argued.

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[Josh Blackman] The Best Defense of Justice Amy Coney Barrett: No One Else Could Have Been Confirmed To Replace RBG Before The Election

["Republicans couldn’t have filled the seat without Justice Barrett. Mitch McConnell knew this, and for that reason insisted that she needed to be the nominee."]

Senator Mitch McConnell is one of the most important Americans of the twenty-first Century. But for his leadership, I am reasonably confident that President Obama would have been able to fill Justice Scalia's seat. And had Donald Trump not been able to run on filling that vacancy, I am reasonably confident that Hillary Clinton would have prevailed. And then Clinton would have promptly replaced Justice Ginsburg, and maybe even Justices Kennedy or Sotomayor. Our country would look very different if Clinton served for two terms with a 5-4 or a 6-3 Supreme Court majority behind her.

Back to reality. Justice Gorsuch is sitting in Justice Scalia's seat. Justices Kavanaugh and Barrett replaced Justices Kennedy and Ginsburg. President Trump prevailed in 2016 and in 2024. And the Court's usually-conservative majority will likely endure for a generation. And Senator McConnell can take a lot of that credit.

That background brings me to an important essay by Mike Fragoso, who served as McConnell's Chief Counsel, after serving as Chief Counsel on the Senate Judiciary Committee. Fragoso, who recently joined the EPPC, is one of the most astute observers about the judiciary. I've long admired his work. Moreover, he brings inside insights from his experience.

Fragoso's latest piece is titled "In Defense of Amy Coney Barrett: Why She Was Nominated to the Supreme Court." The subtitle is "Republicans couldn't have filled the seat without Justice Barrett. Mitch McConnell knew this, and for that reason insisted that she needed to be the nominee." Fragoso makes several important points.

First, Fragoso argues that Trump had to pick a woman to replace Justice Ginsburg:

The first issue was defensive politics, which dictated that the pick needed to be a woman. As a political matter it would have been untenable to replace Justice Ginsburg with a man. With an election mere months away, and college-educated women being a reliable and increasingly progressive voting bloc, subjecting them to the indignity of replacing "the Notorious RBG" with a man would have further radicalized them. This was a political reality that President Trump had long understood—he was, after all, widely reported to have wanted a woman available to replace Ginsburg in the event a vacancy arose during his presidency. . . .

This isn't what some of Barrett's critics call—ridiculously—"DEI"; it's politics. Barrett was a highly attractive candidate to a particular, important constituency of the Republican coalition—religious women—who were ready and willing to make their voices heard to wavering senators.

I agree with Fragoso that the nominee had to be a woman. This sort of preference is not new. President Reagan pledged to nominate a woman to the Supreme Court, and his nominee was Sandra Day O'Connor. After John Roberts's nomination was elevated to the Chief Justice seat, President George W. Bush committed to nominate a woman to replace Justice O'Connor, and he selected Harriet Miers. President Biden committed to nominating a black woman for the Supreme Court, and he nominated Judge Ketanji Brown Jackson. In the old days, there was a Supreme Court seat reserved for a Catholic. And even earlier, seats were reserved for northerners and southerners. I see nothing novel about a President making politics calculations, broadly defined, when making a Supreme Court nomination.

I also agree, as a practical point, that Trump had to select a woman to replace RBG in 2020. It is no surprise that the only two nominees discussed were Barrett and Judge Barbara Lagoa of the 11th Circuit. Judge Neomi Rao was apparently not part of that conversation--a topic for another time.

Optics matter for Supreme Court nominees--especially for President Trump. Trump repeatedly boasted that Neil Gorsuch came out of "central casting." (Trump never said that about Kavanaugh.) Barrett is photogenic, charismatic, and would appeal to a wide swath of the conservative base shortly before the election. It's not surprising why he would have picked her.

Second, Fragoso says that Barrett was easier to confirm due to the fact that her record was thinner:

At the same time, the Judiciary Committee fights over and reviews their documents—opinions, speeches, briefs, public-service work products. In order to get this done in a month we needed a nominee who would not require much preparation herself and who didn't have a voluminous record with which to bog down the Senate in procedural fights.

Barrett had a manageable record. She had been a judge for around three years, which provided an established but digestible record. (As my staff told me at the time, it helped that she was a superbly clear writer.) Her previous service as a professor also meant that her prior career was not burdened with countless legal briefs or interminable executive-branch work emails. At one point, when Democrats complained that they wanted documents from Notre Dame, I asked if they really expected me to ask for the minutes of the faculty parking committee.

There is so much to unpack in these few sentences. Fragoso writes that Barrett did not have a "voluminous record." He's right! She had only been a judge "for around three years" giving her a "digestible record." He's right! Her record was not "burdened with countless legal briefs." He's right! Fragoso is absolutely correct that these attributes were helpful to promptly confirm a nominee. But her lack of a record demonstrates why she should have never been added to the short list in the first place. The purpose of a record is to demonstrate what a person was willing to publicly do with their profession. Barrett simply did not do very much. Critics were incensed when I wrote about how thin her record was. Yet Fragoso confirms there just wasn't much there. Maybe she chose to spend her time doing other things. That was certainly her choice. But those other things did not create a bona fide record for being a federal judge. How many Supreme Court clerks, who became law professors, receive Article III commissions. The number is very, very small. Again, Barrett was added to the short list before she decided a single case. And that was based on a limited record, with no relevant legal briefs, and few writings on matters of public controversy.

In September 2015, Randy Barnett and I wrote an article in The Weekly Standard, titled The Next Justices: A guide for GOP candidates on how to fill Court vacancies. The second rule we offered was that "Paper trails are an asset, not a disqualification." Fragoso may be right that having a smaller paper trail made her easier to confirm. But that should not be a marker of a strong judicial candidate. Query if Justice Alito had stepped down in June 2019, and there was ample time to confirm someone before the election. Would Barrett have still been the nom?

Fragoso mocks those who thinks Barrett is the "second coming of David Souter." Not quite. I think Justice O'Connor would be a much closer facsimile in modern history, though Justice Frankfurter is a close second.

In June 2018, Senator McConnell signaled that he preferred Judge Thapar to replace Justice Kennedy over then-Judge Kavanaugh, in part, because Thapar had an easier record to parse. The New York Times reported at the time:

While careful not to directly make the case for any would-be justice, Mr. McConnell made clear in multiple phone calls with Mr. Trump and the White House counsel, Donald F. McGahn II, that the lengthy paper trail of another top contender, Judge Brett M. Kavanaugh, would pose difficulties for his confirmation.

Mr. McConnell is concerned about the volume of the documents that Judge Kavanaugh has created in his 12 years on the United States Court of Appeals for the District of Columbia Circuit, as well as in his roles as White House staff secretary under President George W. Bush and assistant to Kenneth W. Starr, the independent counsel who investigated President Bill Clinton.

The number of pages is said to run into the millions, which Mr. McConnell fears could hand Senate Democrats an opportunity to delay the confirmation vote until after the new session of the court begins in October, with the midterm elections looming the next month. And while Judge Kavanaugh's judicial opinions are publicly known, Mr. McConnell is uneasy about relitigating Bush-era controversies, the officials briefed on his discussions with Mr. Trump said.

With Senator John McCain's absence because of brain cancer, Republicans have just 50 votes, and Mr. McConnell does not want to draw the ire of his libertarian-leaning Kentucky colleague, Senator Rand Paul, who opposed hawkish Bush policies. Aides to Mr. Trump and Mr. McConnell declined requests for comment.

Mr. McConnell is similarly wary of imperiling the votes of two moderate Republicans, Senators Lisa Murkowski of Alaska and Susan Collins of Maine. He has told Mr. Trump he could lose the two senators, who support abortion rights, if he picks another judge seen as a contender, Amy Coney Barrett, an outspoken social conservative who some observers believe may be more open to overturning Roe v. Wade.

McConnell was right about Kavanaugh. Before any of us had ever heard of Christine Blasey Ford, the biggest issue with Kavanaugh was his paper trail in the Bush White House. Does anyone even remember Corey Booker's Spartacus Moment? Then again, Barrett was apparently under consideration, and McConnell thought she would be harder to confirm. McConnell worried that Murkowksi and Collins would not vote for Barrett in 2018. In 2020, Murkowski voted for Barrett, but Collins did not. Collins said she objected to the timing of the nominee before the election. I suspect Collins would have vote for Barrett in 2019, but who knows. Still, why was Barrett even in the running for the Kennedy seat? In June 2018, Barrett had been a judge for barely a year--proof again that her lack of a record was seen as a pro and not a con. The cake was baked for her as soon as she was nominated to the Seventh Circuit.

Third, Fragoso speaks to the "dogma" incident.

The second issue was offensive politics. Ever since the late Senator Dianne Feinstein had told then-Professor Barrett, "The dogma lives loudly within you," Barrett had been a folk hero among Catholic Republicans and social conservatives. Almost every Catholic in the D.C. area had a "dogma" mug. A nominee with an established, independent political brand was manna from heaven in terms of generating support for a snap confirmation among potentially squeamish Republicans.

Did every Catholic in D.C. really have a "dogma" mug? I've only ever seen a handful of them. In candor, I think this story has become something of an urban legend. I wrote about the Feinstein exchange here:

I went back and rewatched the whole clip on CSPAN. After Feinstein said it, Barrett sort of stared blankly in incredulity at Feinstein, and the colloquy ended. Barrett never actually said anything in response. Feinstein pivoted to ask some question of Judge Joan Larsen. I know this "dogma" line made Barrett something of a mini-celebrity, but I never quite understood why. This is not like Clarence Thomas and Joe Biden going toe-to-toe.  Moreover, Feinstein at the time was suffering from senility. (It is no coincidence that senile and Senate share the same root.) Feinstein made an utterly inappropriate statement that was universally panned. And Barrett was easily confirmed.

The blank look that Barrett gave to Feinstein reminded me of the face she made after shaking Trump's hand at the State of the Union. This was not the visage of a cool operator. This was the visceral reaction of a person who didn't know what to do, and momentarily forgot she was on camera.

Fragoso concludes:

Republicans couldn't have filled the seat without Barrett. McConnell knew this, and for that reason insisted that she needed to be the nominee. Without Amy Coney Barrett, whoever Biden would have put in that seat would have made Ruth Bader Ginsburg look like Robert Bork.

I would not presume to second-guess McConnell's vote counts of his own caucus. Once Ginsburg died, it was going to be Barrett. Maybe the best defense of Justice Barrett is that no one else could have been confirmed in that window, and it was better to have a Justice Barrett than an empty seat that would be Biden. And with the benefit of hindsight, with all the tumult after the 2020 election, it would have been very difficult to confirm anyone. But that is not much of a defense of Barrett's nomination on the merits. That defense can only be made based on her record at the moment she was added to the Supreme Court short list.

My objection today, as it has always been, was that Barrett should have not been appointed as a Circuit Judge with her admittedly thin record, and should not have been placed on the short list before she decided a case. Barrett had her backers who vigorously pushed and promoted her based on the "trust me" promise. We really have not learned much since people said "trust me" about John Roberts. We cannot trust supporters of any judicial nominee. The response must be, prove it.

The post The Best Defense of Justice Amy Coney Barrett: No One Else Could Have Been Confirmed To Replace RBG Before The Election appeared first on Reason.com.

[Ilya Somin] Trump Administration Likely Violated Court Order in Alien Enemies Act Case

[They used the Act to deport some 137 Venezuelan migrants to El Salvador even after a federal court issued a temporary restraining order blocking such action.]

(NA)

While things are not completely clear, evidence increasingly indicates that the Trump Administration violated a court order in the Alien Enemies Act case currently before a federal district court in Washington, DC. Adam Isaacson and Georgetown law Prof. Marty Lederman have detailed analyses of the relevant evidence and legal issues. But the bottom line is that, on Saturday March 15, US District Judge James Boasberg issued a temporary restraining order barring the administration from using the AEA to deport migrants for 14 days, and specifically indicating that they must turn around planes that might be in the air conducting such deportations. The administration nonetheless decided not to turn around two planes then in the air, and one more that was about to take off.

These three planes delivered a total of 137 Venezuelan migrants deported under the AEA to El Salvador, where they are going to be imprisoned for at least one year doing hard labor in that country's notoriously awful prison system. And, while the administration claims these men are members of the Tren de Aragua drug gang, none of them has actually been convicted of any crime or even been given an opportunity to defend themselves against the accusation that they are members of the gang.

Administration lawyers have claimed the judge's order wasn't binding with respect to the men on these planes because the planes were over international waters. This argument is risibly weak. For the explanation why, see this analysis by Notre Dame law Prof. Sam Bray, a leading expert on these kinds of jurisdictional issues.

I would add that, if courts accept the argument that the administration can do whatever it wants to people on aircraft over international waters, without any judicial scrutiny, that would have dire implications for civil liberties. The government could then put anyone it chooses to target - including US citizens -  on a plane or helicopter, fly them over international waters before they have an opportunity to go to court, and then kill, injure, or torture at will. This theory, if taken seriously, would license abuses like the notorious "death flights" used by the 1976-83 Argentinian military dictatorship, which threw dissidents to their deaths from aircraft flying over the Atlantic.

Even if the TRO was indeed legally defective, the proper remedy was not to ignore it, but to obey and challenge it in court on appeal.

A second argument advanced by the administration is that the TRO didn't apply to the deportees on the planes because the Judge only said planes must be turned around in an oral statement, not in his written order. As I understand, such oral orders are still legally binding. But I admit I am not an expert on the relevant protocol, and I welcome correction by experts with greater relevant knowledge.

While things here are not completely clear, it appears likely we have reached the point where the administration is indeed deliberately defying a judicial order. If they manage to get away it, there are likely to be dire consequences, some of which I described here.

Judge Boasberg held an additional hearing on these matters earlier tonight, and clearly wasn't satisfied with administration lawyers' answers to his questions about the apparent defiance of his TRO, and demanded written answers on several issues to be submitted by tomorrow.

In addition the immensely important issue of apparent defiance of a court order, this case also features important substantive issues. If the administration is able to use the AEA as a tool for peacetime deportation, it would set a very dangerous precedent. I covered the relevant issues in detail in previous writings here, here, and here.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.

[Eugene Volokh] Pardons and Autopen Signatures: A 2024 Appellate Decision Says Pardons Don't Have to Be Signed (or Even Written) at All

President Trump posted this on Truth Social:

The "Pardons" that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen. In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime. Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!

Here's my tentative sense of the matter:

[1.] As I understand it, Presidential pardons need not be signed at all, see Rosemond v. Hudgins (4th Cir. 2024):

[A] writing is [not] required as part of the President's exercise of the clemency power. … The plain language of the Constitution imposes no such limit, broadly providing that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." U.S. Const. art. II, § 2, cl. 2. The constitutional text is thus silent as to any particular form the President's clemency act must take to be effective….

No party here has provided any evidence that the English monarch was confined to exercising his clemency authority in 1787 by means of a written instrument, nor have we found any. Accordingly, no known historical basis exists for restricting the Constitution's grant of that authority to require a writing.

Based on this limited but textual and historical foundation, we readily determine that nothing in the Constitution restricts the President's exercise of the clemency power to commutations that have been rendered through a documented writing…. To be sure, as a practical matter, a writing—such as the clemency warrants President Trump signed for all other pardons and commutations granted throughout his presidency—will generally be the means of proving to a third party that the act has occurred… But such a clemency warrant or, indeed, any writing, is not required for the President to exercise this authority under the Constitution.

See also the Wheat Memorandum (apparently approved by the Attorney General John Sargent in the late 1920s), on which the Fourth Circuit relies. It thus follows that a pardon's bearing an autopen signature instead of a hand signature isn't a legal problem, since no signature (and, according to the Fourth Circuit, no writing) is constitutionally required.

[2.] When it comes to autopen signatures, the 2005 Nielsen Memorandum from President George W. Bush's Office of Legal Counsel opines that autopen signatures on bills are valid, even when they are affixed outside the President's presence (though an academic article argues for a presence requirement). But that Memorandum has to do with interpreting the express constitutional provision that the President may approve a bill by signing it: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated."

That requirement that doesn't appear in the text of the Pardon Clause, which simply says the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." If no signature and even no writing is required for the pardon, then an autopen signature is even more clearly not a problem.

[3.] Of course, something is required, and that something is presumably a statement by the President that he is pardoning someone. If (and this is a very big if) a President actually didn't make such a statement, and an assistant just affixed the President's signature to a document purporting to be a pardon without the President's authorization, then I don't see how that would be a valid pardon (at least unless it's somehow ratified by the relevant President). But that turns on a factual question about whether the President was actually involved in the creation of the pardons, not on a legal question about whether an autopen signature renders the pardon invalid.

The post Pardons and Autopen Signatures: A 2024 Appellate Decision Says Pardons Don't Have to Be Signed (or Even Written) at All appeared first on Reason.com.

[Eugene Volokh] "Specific Relief Against Sweeping Executive Decrees," from Prof. James Pfander (Northwestern)

I'm very glad to pass along this item from Prof. James Pfander about Department of State v. AIDS Vaccine Advocacy Coalition, a subject on which I'm not an expert but he is:

In Department of State v. AIDS Vaccine Advocacy Coalition (March 5), the Supreme Court refused to stay a federal district court order directing the executive branch to make payments of foreign aid money duly appropriated by Congress and, as the district court ruled, wrongly frozen by an order of the President. The Court issued the order as part of its emergency docket, without explanation. But the order drew a sharp dissent from four Justices that raises important questions about district courts' power to remedy the federal suspension of payments under existing appropriations.

Writing for the dissenters, Justice Alito (1) questioned the propriety of the order's operating for the benefit of parties who had not appeared in the litigation (2) and characterized the district court's actions as likely outside its jurisdiction and violative of federal sovereign immunity. Here, I will address the jurisdictional and immunity issues.

To get at those issues, we might begin by acknowledging some tension in the Court's definition of federal judicial power to grant equitable relief of the kind at issue in the district court. In one line of cases, headlined by the private-law decision in Grupo Mexicano (1999), the Court defined federal equity power in historic terms, looking to the practice of the High Court of Chancery in England during the founding era for guidance.

In a second line, exemplified by the public-law decision in Armstrong v. Exceptional Child Center (2015), the Court explained federal equity power as the continuation of a tradition of judicial control of executive action that took root in England in the seventeenth century. That tradition was administered by the courts of common law, deploying such writs as mandamus, prohibition, certiorari, and quo warranto. The Armstrong Court thus offered a more dynamic conception of federal equity today than Grupo might support. In other post-Grupo cases, the Court has proceeded on the assumption that federal courts have broad power to enjoin unlawful federal action, even in new settings. E.g., Free Enterprise Fund v. Public Company Accounting Oversight Board (2010).

The Department of State dissenters emphasized the Grupo line. But Grupo arose as a private law dispute that was brought in federal court on the basis of diversity of citizenship and did not implicate government compliance with law. The dissenters did not consider the possibility that common law practice, as later subsumed by federal equity, may have provided substantial support for the exercise of district court power in public law litigation. Had they done so, as Armstrong suggests, they would have encountered a nineteenth-century decision upholding a lower court mandamus order compelling executive officers to pay money due under congressional appropriations.

The Supreme Court, in Kendall v. United States ex rel. Stokes (1838), upheld a writ of mandamus directing the postmaster of the United States to pay for services rendered by government contractors. The lower court had found, essentially without dispute, that Congress had approved the payments and the postmaster had acted unlawfully in refusing to pay the funds. The Kendall Court agreed that, on such a record, the writ of mandamus should issue to compel payment. As the Court explained, the duty to pay was strictly ministerial; an order to that effect did not threaten the principle stated in Marbury v. Madison (1803) that executive branch discretion was free from judicial control. Such an order restores the status quo—payment in accordance with duly enacted law—and is an uncontroversial remedy for an unlawful executive payment suspension. Given that Congress had approved the payment, sovereign immunity did not enter into the analysis.

In reaching that conclusion, the Kendall Court also addressed the claim that the executive enjoys a power to stop the payment of appropriated funds:

This doctrine cannot receive the sanction of this Court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power to control the legislation of Congress and paralyze the administration of justice.

To contend that the obligations imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.

Kendall thus holds that federal courts may assess the legality of an executive refusal to pay appropriated funds and enforce a ministerial duty to make such payments.

It would be strange to conclude, as Justice Alito's dissent would have it, that sovereign immunity blocks the judiciary from enforcing such a ministerial duty today. Proper mandamus relief does not impinge on the government's immunity; indeed, district courts have routinely granted mandamus-like relief following the merger of law and equity in the Federal Rules of Civil Procedure (1938) and the statutory expansion of mandamus venue in 1962. Federal courts today often administer such relief through injunctions, recognizing that the formal writ of mandamus has been abolished and the relief in question issues by way of action or motion under the Federal Rules.

The analysis has been complicated by new statutory waivers of sovereign immunity. Since Kendall came down, Congress has surrendered federal immunity from suit in the Tucker Act, which provides for the Court of Federal Claims (CFC) to hear suits for breach of contract and certain other claims for money damages. Congress has also broadly accepted the proposition that individuals may pursue injunctive and declaratory relief from wrongful administrative action through suits that name the government as a party (instead of requiring the suits to proceed against the responsible official). Today, the puzzle lies not in overcoming sovereign immunity, but in deciding whether Congress has assigned the suit to the CFC as one for money damages or to the district courts as one for equitable relief.

The Court held in Bowen v. Massachusetts (1988) that a federal district court (rather than the CFC) had jurisdiction under the Administrative Procedure Act (APA) to adjudicate the legality of an executive branch refusal to pay reimbursements due under federal law. The Bowen Court recognized that the APA left suits for "money damages" to the CFC. But the Court defined such suits as those seeking compensatory relief for an injury. By contrast, if the plaintiff sues for declaratory and injunctive relief seeking reimbursements to which the plaintiff is already entitled, the action may proceed in district court. On the Bowen Court's view, plaintiffs would pursue compensation for losses they suffered as a result of the Trump Administration's funding freeze in the CFC, and pursue release of the unlawfully frozen funds themselves in district court.

But Bowen has been subject to some trimming that arguably recognizes a broader role for the CFC as to suits to recover money. Justice Alito invoked those developments in arguing that the district court had overstepped its bounds in ordering the government to pay money.

In addition, Justice Alito cited Edelman v. Jordan (1974), which lets federal courts order state officials to make prospective payments from the treasury, but views state sovereign immunity as prohibiting federal courts from ordering the retrospective payment of past due amounts. One might fairly ask how readily Edelman's state sovereign immunity analysis applies to suits against the federal government under a statutory scheme that (as we have seen) broadly waives federal immunity. But even assuming that Edelman's prospective/retrospective distinction fairly describes the jurisdictional line between the district courts and the CFC, it does not necessarily follow that the district court erred in ordering the release of the money in question.

Consider the way this litigation unfolded. The district court rejected the executive branch's suspension of payments and ordered payments in the usual course. The Trump Administration did not comply with that order, leading to a growing accumulation of unpaid funds.

Justice Alito's position would apparently consign the plaintiffs, seeking recovery of those funds, to bringing a separate suit in the CFC that could take months or years to resolve. This would further the executive's goal of suspending payments that the district court found it was duty-bound to make and thereby reward non-compliance with the district court's decree. The district court ordered payment of funds due and owing for prior work that had gone unpaid after the district court's initial entry of a declaration of illegality, funds that would seemingly be payable under the dissent's prospective relief theory.

Perhaps it makes no sense as statutory policy to divide remedial capacity between the CFC and the district courts. District courts can hear money claims against the federal government, and their judgments, like those of the CFC, are routinely payable under a standing appropriation called the Judgment Fund; indeed, district courts hear Tucker Act claims for money up to $10,000. Removing that cap would empower broader retrospective relief in district courts and eliminate the need to toggle back and forth between courts to secure complete relief against the federal government. (This pathological toggling has a name: the Tucker Act shuffle.) But accepting Tucker Act limits, the order here ensured compliance with an equitable decree the district court had power to issue under the prospectivity regime that the dissent favored.

To be sure, in cases involving both the impoundment of funds and removal from office, money claims for backpay or breach of contract may be available. Whether to consign litigants to such remedies should depend on an equitable judgment about such familiar matters as the likelihood of success and irreparable harm. The district court here applied those familiar equity principles, ruling that the government had no legal justification for suspending payment and that the loss of current funding would cause harm. The Supreme Court majority's refusal to grant a stay may have understood the district court's decision in those terms, rather than as one that paid insufficient attention to the government's sovereign immunity.

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