Eugene Volokh's Blog, page 284

August 19, 2024

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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

 •  0 comments  •  flag
Share on Twitter
Published on August 19, 2024 07:07

[Josh Blackman] Mission to Israel Part VI: The Hostages

[Bring them home now!]

[After a brief hiatus, this is the sixth post in my series on my mission to Israel. You can read Parts I, II, III, IV, and V.]

It is difficult to describe the extent to which October 7 impacted the psyche of Israelis. In particular, there is a constant awareness of the hostages. Walls and billboards throughout the country are plastered with the familiar sign: the person's name and age in red letters against a white background; a photograph of the person in happier times; and bold letters: "Bring Him/Her Home Now!"

From the moment you get off the airplane, you see over one hundred posters lining the ramp to customs.

Various locations curate different ways of remembering the hostages. At the National Library of Israel, a poster of each hostage was placed on a chair, with a book that person enjoyed. For the Bibas brothers, who were nine months and four years old when kidnapped, they had kid chairs and kid books.

The signs appear everywhere. The only experience that I can slightly relate to was the prevalence of American flags after 9/11. At least in New York, I think almost every kid brought an American flag to school for at least some period after the terrorist attacks. But eventually that patriotism faded; or, as I learned a new word, the patriotism became jingoism.

Artists also created illustrated versions of the sketches.

Again, the drawing of the Bibas brothers was especially heart-breaking. The younger son has now spent more of his life as a hostage than outside.

During our mission, we visited the headquarters of the Hostage & Missing Family Forum. This organization sprung up in the wake of October 7 to advocate for the interest of families of those who were taken hostage, as well as those whose bodies were missing in Gaza. In a fairly short period of time, a sophisticated operation developed.

This board depicts all of the various media outlets the group has appeared on.

But there are divisions. Not everyone agrees what "Bring them home now!" means. Is this message an ultimatum to Hamas? Or an ultimatum to the Netanyahu government?

Even among Israelis, there is a stark disagreement about how to handle the hostage situation. In years past, Israel went to great lengths to bring back hostages, including by releasing many dangerous prisoners--including Yahya Sinwar, who has become the head of Hamas. What is the cost of bringing back the hostages? What is the cost of not bringing back the hostages? These questions are exceptionally difficult. I think media coverage only shows the side of the poor families who want their loved ones brought home at any cost. But, as with any public policy decision, costs are never so easily balanced.

We met with one woman whose nephew, a soldier, was kidnapped on October 7. She described the agony of not knowing whether he was dead or alive. They held a funeral for him, with an empty casket. She later found out that he had been killed, but at the time, did not know where his body was.

Shortly after our trip, the body of Staff Sgt. Tomer Yaakov Ahimas, 20 was recovered from Gaza and brought to Israel. They were able to hold a proper funeral with Tomer's remains.

I will continue this series tomorrow with a post about the restricted surveillance tapes.

The post Mission to Israel Part VI: The Hostages appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 19, 2024 05:30

[Josh Blackman] Today in Supreme Court History: August 19, 1937

8/19/1937: Justice Hugo Black takes the oath.

Justice Hugo Black

 

The post Today in Supreme Court History: August 19, 1937 appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 19, 2024 04:00

August 18, 2024

[Ilya Somin] Harris and Trump Offer Terrible Housing Policies

Harris-Trump | NA

[With minor exceptions, their proposals are likely to do more harm than good.]

Kamala Harris and Donald Trump. (NA)

 

The housing crisis is one of the most important policy issues facing the nation. Housing shortages increase living costs for large numbers of people, and also prevent millions from moving to places where they would have better job and educational opportunities, thereby slowing economic growth and innovation. Both Kamala Harris and Donald Trump have taken positions on housing issues. But their ideas are mostly ones that would cause more harm than good. Sadly, neither candidate proposes any meaningful steps to break down the biggest barrier to housing construction in most of the US: exclusionary zoning rules that make it difficult or impossible to build new housing in response to demand.

Harris is the one that has offered more in the way of detailed proposals. She proposes giving $25,000 tax credits to first-time homebuyers and tax incentives for developers selling homes to first-time buyers. She also advocates restricting the use of algorithms to set rental prices, and  capping rent increases and cracking down on "corporate" landlords. The rent control idea may be a reference to the Biden Administration's recent plan to cap rent increases at 5% per year, though it is not clear if Harris endorses it. Harris also promises to build 3 million new homes by 2029, but is extremely vague on how exactly she plans to do it.

These policy ideas range from mediocre to awful. A $25,000 subsidy for first-time homebuyers is unlikely to do much to ease housing shortages. The fundamental problem is one of regulatory restrictions on supply. In that environment, subsidizing demand will simply bid up prices. Moreover, the people who most suffer from housing shortages are mostly renters, not would-be homeowners. This subsidy plan does nothing for them. Much the same goes for the plan to provide tax incentives for developers. This won't do much for supply so long as developers are barred from building much in the way of new housing in many places, especially multi-family housing.

If zoning and other regulatory restrictions do get lifted, Harris's tax credit incentives would be unnecessary. And, indeed, there would be no good reason to have the tax code favor housing purchases over other types of consumption.

Rent control is a terrible idea that is actually likely to exacerbate shortages. This is an Economics 101 point broadly accepted by economists across the political spectrum. Don't take my word for it. Take that of prominent progressive ecoonomists, such as Paul Krugman, and Jason Furman, former chair of Barack Obama's Council of Economic Advisers, who points out that "[r]ent control has been about as disgraced as any economic policy in the tool kit."

Finally, there is no good reason to think that corporate landlords are any worse than other types of landlords, or that algorithmic pricing is somehow making the housing crisis worse. To the contrary, corporate landlords are usually as good or better than their "mom and pop" counterparts. Take it from a longtime renter with experience living under both types of landlords; the corporate ones usually maintain their properties better, and have better customer service. And algorithms can help owners identify situations where they can increase profit by lowering prices, as well as increasing them.

Harris is right to want to build 3 million new homes. Indeed, it would be great to build more than that. But, so far, she hasn't proposed much in the way of effective methods of doing it. Unless and until she does so, her aspiration for 3 million new homes is not much more viable than my desire to add 3 million unicorns to the nation's stock of magical animals.

At times she has made noises about cutting back red tape. I assume, also, that she supports President Biden's plan to make "underutilized" federal land available for housing construction. The latter is a good idea, but it's far from clear exactly which land will be opened up and on what terms.

Trump's housing agenda is less detailed than Harris's, but could well be even worse. The housing chapter of the Heritage Foundation's controversial Project 2025 emphasizes that "a conservative Administration should oppose any efforts to weaken single-family zoning." Single-family zoning, of course, is the most restrictive type of exclusionary zoning blocking new housing construction in many parts of the country. Donald Trump has disavowed Project 2025, and claims he "knows nothing about it." But the author of the housing chapter is Ben Carson, Trump's former secretary of Housing and Urban Development. During the 2020 election, Carson and Trump coauthored a Wall Street Journal op ed attacking efforts to curb exclusionary single-family zoning. He recently reaffirmed that position, promising to block "low-income developments" in suburban areas. On housing, at least, Project 2025 seems to reflect Trump's thinking, and that of the kinds of people likely to influence housing policy in a second Trump administration. The Trump worldview is one of NIMBYism ("not in my backyard").

Trump's immigration policies—a centerpiece of his agenda, if anything is—would also have negative effects on housing. Evidence shows that mass deportations of undocumented immigrants reduce the availability of housing and increase the cost, because undocumented immigrants are an important part of the construction work force (an effect that outweighs the potential price-increasing effect caused by immigration increasing the number of people who need housing). Trump and his allies also plan massive reductions in most types of legal immigration. Slashing work visas is also likely to negatively affect housing construction (as well as damage the economy in other ways).

If there is a saving grace to the Harris and Trump housing policies, it's that most of them cannot be implemented without new legislation, which will be extremely hard to push through a closely divided Congress. That's true of the Harris's rent control policies, and her plans to subsidize home purchases, and crack down on "corporate" landlords. Likewise, a Trump administration would probably need new legislation for any major effort to protect single-family zoning against state-level reform efforts.

But Trump's immigration policies are an exception. The executive could ramp up deportation and slash legal immigration without new legislation. Indeed, the Trump administration did in fact massively cut legal immigration during Trump's previous term in office. Deportation efforts could be partially stymied by state and local government resistance (as also happened during Trump's first term). But Trump could partly offset that by trying to use the military, as he and his allies plan to do (whether legal challenges to such efforts would block them is debatable). At the very least, ramping up federal deportation efforts would drive undocumented immigrants further underground, and reduce their ability to work on construction, where laborers are relatively out in the open and more vulnerable to detection than in some other jobs.

In sum, Harris and Trump are offering mostly terrible housing policies. Their main virtue is the difficulty of implementing them.

There are, in fact, steps the federal government can take to ease housing shortages. Most restrictions on new housing are enacted by state and local governments, which limits the potential of federal intervention. But Congress could enact legislation requiring state and local governments that receive federal economic development grants to enact "YIMBY" legislation loosening zoning rules. Perhaps a stronger version of the YIMBY Act proposed by Republican Senator Todd Young and Democratic Rep. Derek Kilmer (their version could be a useful start, but does not have enough teeth). Those who object to such legislation on grounds of protecting local autonomy should recall that YIMBYism is actually the ultimate localism.

The federal Justice Department could also support litigation aimed at persuading courts to rule that exclusionary zoning violates the Takings Clause (which it does!). Such litigation could do much to break down barriers to new housing construction. Federal government support wouldn't guarantee victory. But it could help by giving the argument instant additional credibility with judges.

Finally, the feds could help pursuing the opposite of Trump's immigration policies, and instead make legal migration easier. That would increase the construction workforce, and make housing construction cheaper and faster.

Sadly, neither major-party candidate is proposing to do any of these things. Instead, they mostly sell claptrap that is likely to make the housing crisis even worse.

The post Harris and Trump Offer Terrible Housing Policies appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 18, 2024 09:38

[Josh Blackman] How John Eastman helped AG Harris Get Elected, and why VP Harris Thought Leondra Kruger was too "Cautious" for SCOTUS, While KBJ Would Be "Bold"

[Two tidbits from the New York Times that I did not know.]

The New York Times, perhaps in something of a rush, is catching up with the usual profiles of a presidential candidate that would usually come during the nomination season. Of course, as Maureen Dowd points out, there was no such process for the current Democratic nominee. Nomination by acclimation, as it were. So the name of the game is backfill. Today's Times shared two tidbits about Kamala Harris that may be of interest to readers.

First, it turns out that John Eastman, of all people, helped Harris prevail in her razor-thin margin of victory for AG. For those who were not around fifteen years ago, Eastman was a leading figure in legal education. As dean at Chapman, Eastman was building a nucleus of leading conservative law professors. One of his more important hires was to poach Ron Rotunda, my professor, from George Mason. But in 2010, Eastman resigned as Dean to run for California Attorney General. Eastman would lose the Republican primary to Los Angeles County District Attorney Steve Cooley. During that primary, as the Times points out, Eastman landed a strong punch on Cooley. Apparently, Cooley would have been eligible to receive both the salary of Attorney General, and his pension from serving as District Attorney. Eastman attacked Cooley for "double dipping."

Later, during a debate between Cooley, and Kamala Harris, the Democratic nominee for AG, Eastman's "double dipping" point was brought up:

Dan Morain, who worked for The Sacramento Bee's editorial page, asked who would bring up double-dipping — that is, taking both a public salary and a public pension. It had been an issue in the Republican primary, first raised by John Eastman, Mr. Cooley's primary opponent. Mr. Eastman is better known now for his efforts to keep Mr. Trump in office after the 2020 election, which resulted in an indictment and disbarment.

"I'm going to ask that," replied Jack Leonard, a Los Angeles Times reporter who covered Mr. Cooley.

Collis gave the wrong answer, and said he "earned" the right to accept the salary and the pension:

Inside the practice courtroom, Mr. Leonard outlined that the $150,000 salary of the California attorney general was half of the $292,300 salary that Mr. Cooley was earning as the local district attorney. If he double-dipped by taking a taxpayer-paid pension as a former district attorney and a taxpayer-paid salary as the state attorney general, Mr. Cooley would be in line to make more than $400,000.

"Do you plan to double-dip by taking both a pension and your salary as attorney general?" Mr. Leonard asked.

"Yes, I do," Mr. Cooley said without hesitation.

He glanced at Ms. Harris. She said nothing.

"I earned it."

But Mr. Cooley was not yet done. "I definitely earned whatever pension rights I have, and I will certainly rely upon that to supplement the very low, incredibly low salary that's paid to the attorney general," he added.

"It was tone deaf," Mr. Riggs said. "It was startling," Mr. Leonard said. "It was awful," Mr. Morain said. "It was jaw-dropping," Mr. Smith said.

Harris would prevail by less than 1% in the race. I think it is safe to say that John Eastman, at least in part, helped Harris win her race for Attorney General. Had the primary gone differently, imagine if Eastman had bested Harris in the general election. What a different world we would be in.

The next tidbit concerns Harris's role in filling Justice Breyer's seat. As readers will recall, President Biden promised to select a black woman for the Supreme Court seat. (He previously also promised to select a black woman for the vice presidency.) The top three nominees were Judge Ketanji Brown Jackson, Justice Leondra Kruger of the California Supreme Court, and District Court Judge Michelle Childs from South Carolina. Both Jackson and Kruger had clerked on the Supreme Court. Childs was favored by Representative James E. Clyburn of South Carolina, who helped turn the 2020 Democratic primary in Biden's favor.

VP Harris played a role in the process, which the Times describes:

She was also deeply involved in Mr. Biden's only Supreme Court appointment, interviewing all three finalists and studying their legal records. While she considered Leondra R. Kruger, a California Supreme Court justice, a "very sharp lawyer," she concluded that the justice might be too cautious for the moment, according to a former White House official.

J. Michelle Childs, then a district judge, had the support of both Mr. Clyburn and Senator Joe Manchin III, then a Democrat from West Virginia, making her the choice of least resistance. But Ms. Harris concluded that Ketanji Brown Jackson, a federal appeals judge, would be the boldest option, the former official and Mr. Klain said. "Joe, you may only get one chance to do this as president, and you want to be proud of your legacy here," she told Mr. Biden, according to Mr. Klain.

There is a lot packed into this paragraph. First, Harris echoed what was the general consensus: Kruger, a former Deputy Solicitor General, was viewed as a "very sharp lawyer." As a former Deputy SG, she had developed a sterling reputation for intellect. But there were suggestions she would not be as willing to make waves. Apparently she was something of a moderate on the California Supreme Court! Kruger also very publicly declined President Biden's invitation to serve as Solicitor General. (I wrote about Kruger here, here, here, and here.) Second, Childs, who had been nominated to the D.C. Circuit, was viewed as candidate who would face the "least resistance." (I wrote about Childs here and here.) But did Harris recommend Kruger or Childs? No, she backed Jackson. Why? Third, Harris drew a contrast between Kruger and Jackson. The former was "cautious" and the latter was "bold."

I know I am widely ridiculed on the right when I discuss judicial courage. But progressives get it. They understand intrinsically that the primary limitation of a Supreme Court justice is not her intellect or precedent, but fortitude. Democrats are not interested in appointing an intellectual who exhibits caution to the Supreme Court. VP Harris recognized this dynamic fully. Caution may be fine for the lower courts, but it is not the order of the day for SCOTUS. Courage is. Really, courage is important on all levels, but especially on the Supreme Court where the stakes are higher, and pressure is stronger. And a judicial nominee's record must clearly demonstrate by word and deed their courage. In that regard, Justice Jackson was the ideal pick for the Supreme Court, and has justified her selection with everything she has done on the bench. Maybe we should ask Harris to help pick Republican nominees for the Supreme Court?

The post How John Eastman helped AG Harris Get Elected, and why VP Harris Thought Leondra Kruger was too "Cautious" for SCOTUS, While KBJ Would Be "Bold" appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 18, 2024 09:35

[Josh Blackman] Today in Supreme Court History: August 18, 1920

8/18/1920: The Nineteenth Amendment is ratified.

The post Today in Supreme Court History: August 18, 1920 appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 18, 2024 04:00

August 17, 2024

[Josh Blackman] Today in Supreme Court History: August 17, 1988

8/17/1988: Republican party nominates George H.W. Bush for President. He would appoint David Souter and Clarence Thomas to the Supreme Court.

President George H.W. Bush's appointees to the Supreme Court

 

 

The post Today in Supreme Court History: August 17, 1988 appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 17, 2024 04:00

August 16, 2024

[Josh Blackman] Severability on the Shadow Docket: SCOTUS Splits 5-4 On Whether Entirety of Title IX Regulations Must Be Enjoined

[Justice Gorsuch joins the three dissenters on severability. What about Justices Thomas and Barrett?]

Recently, federal district courts in the Fifth and Sixth Circuits enjoined the new Title IX regulations in their entirety. These courts declined to sever three provisions that injure the plaintiff from the remainder of the scheme. Both courts of appeals declined to stay those rulings. The Solicitor General asked the Supreme Court to narrow those injunctions to three provisions that the plaintiffs allege injure them. By a 5-4 vote, the Court denied the SG's stay application in Department of Education v. Louisiana. The Court issued a per curiam opinion, which was joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Sotomayor dissented, joined by Justices Kagan, Gorsuch, and Jackson.

It would be wrong to assume that Justice Gorsuch is Bostocking again on transgender rights. The four dissenters upheld the injunction against that three critical provisions that redefine sex discrimination to include gender identity, regulate sex-separated facilities like bathrooms, and redefine hostile environment harassment. Sotomayor's dissent explains that the plaintiffs' "alleged injuries flow from those three provisions." And this measured dissent, which lacks any of the vitriol we've seen of late, was probably tailored to keep Justice Gorsuch's join. Sotomayor explains:

For now, on the briefing and record currently before us, I would stay the preliminary injunctions except as to the three provisions above, in keeping with the traditional principle of equitable remedies that"relief afforded [to] the plaintiffs" must not "be more burdensome than necessary to redress the complaining parties." . . .

At this juncture, however, enjoining the application of any other part of the Rule needlessly impairs the Government from enforcing Title IX and deprives potential claimants of protectionsagainst forms of sex discrimination not at issue in respondents' suit.

What, then, was the disagreement? The Justices fractured on severability. Indeed, severability, along with vacatur and nationwide injunctions, are among the most unresolved areas of the Court. In recent years, Justices Thomas, and later, Justice Gorsuch, have called for a re-examination of severability doctrine. That Justice Gorsuch dissented here likely reflects his nuanced views on severability. He rejects the notion that courts can "vacate" rules, in large part because of standing doctrine. To Justice Gorsuch, if a provision does not injure a person, it cannot be enjoined.

But where is Justice Thomason on this issue?  And Justice Barrett has been very skeptical about granting preliminary relief. She seems to be trending to the position advanced by Sam Bray that there should not be a fixation solely on the likelihood of the merits–or a preview of the merits question. But that is precisely what the per curiam opinion did here.

The majority per curiam opinion only had this to say about severability:

In this emergency posture in this Court, the burden is on the Government as applicant to show, among other things, a likelihood of success on its severability argument and that the equities favor a stay. On this limited record and in its emergency applications, the Government has not provided this Court a sufficient basis to disturb the lower courts' interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule. Nor has the Government adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect.

Here, Justice Kavanaugh's Labrador concurrence provided the rule: the Court focuses almost exclusively on likelihood of success on the merits. There is no discussion at all about irreparable harm. By contrast, Justice Sotomayor's dissent expressly discusses the balance of harms:

By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents' alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here. The injunctions this Court leaves in place will burden the Government more than necessary. The injunctions will also affect the public. Individuals in the respondent states will be deprived of guidance related to their rights under Title IX, of updates to the processes schools must follow in investigating their complaints of sex discrimination, of protections from retaliation should they file a complaint, and of much more.

These interests are absent in the majority's opinion.

The majority's only discussion of the "equities" concerns how quickly the lower courts will hear oral argument. That is not really a weighing of the equities. This analysis throws any sort of four-factor test out the window. Again, I think Justice Kavanaugh was correct in Labrador. But it provides further rejection of Justice Barrett's Does v. Mills analysis.

And what about Justice Thomas? Unless you believe that the Court has a writ of erasure, and can "vacate" rules, the notion of enjoining provisions of Title IX that inflict no injury needs to be explained. Now in Corner Post, Justice Kavanaugh zealously defended the vacatur, especially with regard to entities that are not regulated. But other members of the majority, including Justices Thomas, Gorsuch, and Barrett, were mum.

There is a lot here going on in the vacatur/severability debate. I think the Court did not want to get into that thicket with a shadow docket case. They likely thought it sufficient now to deny relief, without weighing in on whether other provisions should be put on ice. If I had to guess, Justice Kavanaugh and/or Chief Justice Roberts wrote this per curiam opinion.

This issue will likely come back to the Court probably later this term, with a cert grant before January. If Trump prevails, and the SG witches positions, the Court will probably DIG the case, and issue a Munsingwear vacatur. Skrmetti would likely suffer a similar fate. The Court can decide even fewer cases!

The post Severability on the Shadow Docket: SCOTUS Splits 5-4 On Whether Entirety of Title IX Regulations Must Be Enjoined appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 16, 2024 17:24

[Eugene Volokh] "Bis Dat Qui Cito Dat"

Just heard that one: "[H]e gives twice who gives promptly payment rendered promptly is worth twice as much," though I take it that this can be used for anything (e.g., requested advice) and not just payment. Apparently stems from Publilius Syrus, though perhaps it was old when he was young.

Thanks to Fred Triem for passing this along.

The post "Bis Dat Qui Cito Dat" appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 16, 2024 14:32

[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

[Crypto disclosures, high-risk stops, and protecting the curtilage. ]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Peter and Annica Quakenbush want to use their 20-acre property in rural Brooks Township, Mich. as a green cemetery and nature preserve, but township officials banned all cemeteries to stop them. This week, however, a state trial court noted that it's "Zoning 101" in Michigan that officials can't ban legitimate land uses—and ruled from the bench that the county is violating the state constitution. A rational-basis win at the motion-to-dismiss stage? Eureka! Click here to learn more.

EPA economist has severe allergies. When a nearby coworker starts wearing cologne that causes reactions, economist asks to be moved from a cubicle to an office with a door. EPA refuses but says he can work from home. (Coworker also refuses to stop wearing cologne.) Economist says he doesn't want to WFH as he actually likes interacting with colleagues (just not with cologne). District court: EPA did enough. D.C. Circuit: Lots of facts here, talk to a jury. Dissent: WFH sounds pretty good to me. "Although Fresh Line chickens and turkeys, according to allegations we accept as true, were raised strictly indoors, the approved product labels depict birds freely roaming outside a barn." Does a member of the Animal Legal Defense Fund have standing to sue the Department of Ag and challenge its approval of this feathered propaganda? D.C. Circuit: The member alleges the label is misleading, but that means she already knows it's misleading. So she won't be misled. (And who cares what anyone else thinks.) So she doesn't have an injury. Case dismissed. A century ago, when zoning laws were shiny and new, they were a favorite tool for targeting racial minorities. City of Cromwell, Conn.: As a nation, we've evolved since then. What we like to use our zoning laws for now is targeting people with mental-health disabilities. Cool? Second Circuit: Decidedly uncool―and unlawful under the Fair Housing Act. But the mismatch between the jury's award of $181k in compensatory damages and its award of $5 mil in punitive damages was so large as to violate the Due Process Clause's limit on excessive punitive damages. The punitive damages are reduced to $2 mil. Driver pulls over to fix his malfunctioning GPS; a Waterbury, Conn. police officer knocks on the window, and driver hands over his driver's license and gun permit and tells officer there's a legal pistol in the driver's side door. Yikes! Officer violently drags him out of the car, handcuffs him, detains him in squad car for half an hour, and searches the driver's car and trunk. Second Circuit: Having a lawful gun doesn't give police carte blanche to arrest you for over half an hour and ransack your car. No qualified immunity One man is murdered and another grievously wounded in Lebanon, Penn. in drug-money dispute. Three people were seen leaving the scene of the crime; one pleads guilty to a 20-count criminal information, naming one of the others seen as a co-conspirator. At the latter man's trial, the court reads aloud to the jury the entirety of the former man's criminal information—without having him testify—and he's convicted, sentenced to life. Third Circuit: A clear violation of the Confrontation Clause. Habeas granted. The first rule of ex post facto challenges to sex-offender registration and residency requirements is that the sex offenders lose. Fourth Circuit: Applying that hoary legal principle here, we conclude that the sex offenders lose. Circuit split alert! In July, the Fourth Circuit (over a dissent) held that "geofence" warrants ordering Google to provide law enforcement with information about every accountholder who enters a particular area in a particular time period are totally cool under the Fourth Amendment. But lo! A mere month later, here comes the Fifth Circuit to tell us that these same warrants are, in fact, totally bogus under the Fourth Amendment! This problem can only be solved by SCOTUS (or by Google, which has apparently changed the way it stores data to put a stop to these warrants no matter what the courts say). This Sixth Circuit opinion is an absolute banger for anyone who's a huge fan of the Social Security Administration's org chart or who gets super-excited when federal courts reaffirm that the Appointments Clause of Article II doesn't really pose any obstacle to federal agencies' doing whatever they want so long as the nominal agency head says the right magic words. The slim minority of you who fall into neither category can probably give it a miss. Cleveland, Ohio woman is found in a park in 1974, fatally stabbed. Near her body is a newspaper with a bloody palm print and a bloody pillowcase from a nearby hotel, both with ties to another man. Despite no physical evidence linking the woman's husband, he's convicted, spends 46 years in prison—and is exonerated in 2021. (He died six months after his acquittal.) He sues the detectives' estates (they've since died) and the city of Cleveland. Sixth Circuit: He's too late suing the detectives' estates, but a jury should have the chance to consider whether evidence was unconstitutionally withheld. Partial concurrence/dissent: The claims against the detectives' estates should go forward, too. Under federal law, anyone who receives more than $10k in cash in the course of their trade or business has to make certain disclosures to the gov't. In 2021, Congress amended the law so that "cash" now includes "digital assets," such as cryptocurrency and monkey pictures. Crypto folks sue. Sixth Circuit: And their enumerated powers, Fourth Amendment, and First Amendment claims can go forward. But their vagueness and self-incrimination claims are not yet ripe. Security guard at a Cincinnati public library posts an insensitive meme to his personal Facebook page concerning the BLM protests. He takes it down less than 24 hours later, but some of his Facebook friends who work with him at the library complain. He's fired from his job. He sues for First Amendment retaliation: Sixth Circuit: He spoke on a matter of public concern, and nobody could think that his post would actually disrupt the library. He wins. Dissent: How are we supposed to weigh whether his interest in speaking outweighs potential disruption at work? We should defer to the library. After a warning, Barron County, Wisc. officer lets canine loose into home to apprehend man wanted on several outstanding arrest warrants for violent crimes. The dog locates the man, and the K9 officer shouts that he'll call off the dog if the man shows his hands. Amid tortuous screams, the man explains he can't do that because of the dog trying to tear one of his arms apart. After about 2 minutes the dog is successfully commanded to stop. The arm is now severely disfigured. Qualified immunity? Seventh Circuit: Too many disputed facts to assess at this stage. Get thee to a jury. You might think two affected firearms industry manufacturers, a gun association, and an individual are enough to make a federal case out of a new ATF rule reclassifying pistols equipped with "stabilizing braces" as "short-barreled rifles." But apparently 25 states—fully half of the Republic—needed to be plaintiffs as well. And their AGs can now ring the register (and prepare talking points for future gubernatorial runs) because their additional presence seems to have been just enough to convince the Eighth Circuit to find the rule likely is arbitrary and capricious under the APA and therefore is preliminarily enjoined. Dissent: A judge in Texas already vacated this rule so how can we enjoin it? Man in Columbia County, Ark., wanted for a murder earlier that evening, is said to be driving a white SUV. Officer finds a matching SUV, blocks the vehicle into its parking space, gets out and asks the driver his name. Which—in an unusual tactic for a wanted murderer—he honestly provides. However, he then puts the SUV in reverse, slamming into the cop car, and is about to drive over the curb when the officer shoots him dead through the window. His estate sues for excessive force. Eighth Circuit: Dude, he just murdered someone. Qualified immunity. Dissent: The facts of the encounter are genuinely disputed. Iowa passes law requiring school libraries to remove any books that are not "age-appropriate" and prohibiting any "program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six." Lawsuits are filed and the law is enjoined. Eighth Circuit: Enjoined a little too hastily. Why don't you take another look at it and hew a little closer to the Supreme Court's standards. Conservation group sues Minnesota, saying the state isn't doing enough under the Endangered Species Act to protect the threatened Canadian lynx. Minnesota agrees to a consent decree that imposes regulations on trappers to prevent harms to the lynx. But wait! Three pro-trapping organizations intervene and object to the consent decree. Eighth Circuit: The decree seems fair and reasonable to us and doesn't appear to violate state administrative law. Los Angeles police looking for a stolen limo encounter a limo driving by, the license plate of which doesn't match the vehicle because of DMV error. Yikes! Escalating rapidly, roughly a dozen officers (with a helicopter assist) conduct a "high-risk" stop, swarming the innocent and terrified occupants—a mom and two teens. When the limo occupants sue, alleging excessive force, the district court grants qualified immunity to the individual officers, and then a jury rules for the city on the remaining claims against the LAPD. Ninth Circuit: It was clearly established that reasonable suspicion a vehicle is stolen isn't a constitutionally sufficient basis to go all Heat on the car, so plaintiffs get another crack at their claims against the individual officers. But jury instructions were OK, so verdict for the city affirmed. Dissent: Given how the jury was instructed, it's clear they didn't think the officers acted unreasonably and would have rejected the individual-officer claims too, so any qualified-immunity error was harmless. With no warrant, Los Angeles police snoop onto driveway ("curtilage") and spot an uncle handling meth in his nephew's garage. Drug convictions ensue for both. They push for post-conviction relief, claiming their lawyers messed up by not raising the obvious: Police can't snoop onto curtilage without a warrant, so the evidence should've been tossed. Ninth Circuit: Nephew's lawyer dropped the ball since the police had no right to invade his curtilage. But the uncle? It's not his house. Concurrence: Few things are more serious than a (literal) overstep of gov't power. Protection of curtilage, tracing back to English common law, is an ancient right deeply rooted in our history. Children's Health Defense, a nonprofit founded by RFK Jr., wants to distribute information via social media about what it views as the dangers of vaccines. But Meta Platforms, operator of Facebook, adds warnings these views are, in fact, bunk. The nonprofit sues, alleging that Meta violated their First Amendment rights and even effectuated an unconstitutional "taking" by removing their donation button. Ninth Circuit: But Meta is not the gov't, so all of these wacky claims fail. Dissent: All of the wackiest claims fail, but there are enough allegations that Meta was acting on behalf of the gov't that the First Amendment claims should go forward. Mexican national is connected to the fatal shooting of a Border Patrol agent in the United States. Seven years later, FBI agents interrogate him in a Mexican prison. After reading him his Miranda rights, they hit him with everything: good cop, bad cop; your friends told us a different story; we're not charging you with anything. He doesn't bite. Then his lawyer says, you were just in the mountains looking to rob drug dealers, and that's not a crime, so tell these guys what they want to know. So he does. Ninth Circuit: That is extremely ineffective assistance of counsel. Dissent: We should make this guy who admitted to participating in the murder of a federal agent work at least a little harder before we vacate his sentence. Mexican national—who had previously been removed from the country—reenters, gets caught, and is charged with illegal reentry. His lawyer collaterally challenges his initial removal, arguing that he has major brain damage and unknowingly waived his right to counsel in the first case because when he was told the gov't would not pay for his attorney and he would have to "hire" one, he thought that precluded him from getting a pro bono attorney. Ninth Circuit: The waiver was invalid. Dissent: Oh, come on. He was expressly told about the availability of pro bono counsel. Man abducts pregnant woman from her home at gunpoint, forces her to steal stacks of money from the bank where she works. The man faces kidnapping and robbery charges, along with a solicitation of murder charge based on a jailhouse informant, who said that the man asked him to kill the woman, her husband, and baby for $10k. The informant also testified that his motives were altruistic and he'd received no parole consideration—a lie. Ninth Circuit (over a dissent): And that lie results in a habeas grant. And in amicus brief news, IJ—and some friends—are asking the Supreme Court to hold that a civil rights plaintiff is a "prevailing party" when they win a preliminary injunction and then the gov't capitulates, by changing the law being challenged or otherwise mooting the case before a final judgment on the merits. Last year, the Fourth Circuit—in line with every other circuit—ruled that indeed they are, which entitles them to attorneys' fees under Section 1988. And that's a holding the Court should not disturb. And in en banc news, the Eleventh Circuit will reconsider its decision that the Houston County, Ga. sheriff's office is violating Title VII by offering health insurance that lacks coverage for sex changes.

New case! Indiana's state motto is "The Crossroads of America," and for years Indiana police have exploited one of the nation's biggest shipping hubs to profit from that status―plucking parcels en route from the East Coast to the West, subjecting them to K-9 sniffs, opening them, and, if they contain money, suing to forfeit the money in Indiana state courts. What violation of Indiana law supports these forfeitures? Indiana doesn't say. Since 2022, the state has sued to forfeit more than $2.5 mil in this way. Now, IJ has teamed up with a small California jewelry company (whose money was recently snatched up in Indiana) to file a class-action lawsuit and put a stop to Indiana's money grab.

New case! Friends, do you love meat but have ethical or environmental qualms about the more than 34 million cows and 8 billion chickens killed annually to satisfy America's appetite for it? Then you're the sort of consumer UPSIDE Foods wants to appeal to with cultivated chicken, which is grown from real chicken cells without the need to kill animals and has been greenlit for interstate sale by the FDA and USDA. The state of Florida, however, is not a fan: At the behest of in-state agricultural interests, it recently banned cultivated meat from the state. But Florida can't wall itself off from the interstate market just to please favored in-state interests. So this week IJ and UPSIDE joined forces to challenge this protectionist ban. Learn more here.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

 •  0 comments  •  flag
Share on Twitter
Published on August 16, 2024 12:30

Eugene Volokh's Blog

Eugene Volokh
Eugene Volokh isn't a Goodreads Author (yet), but they do have a blog, so here are some recent posts imported from their feed.
Follow Eugene Volokh's blog with rss.