Eugene Volokh's Blog, page 293

[Josh Blackman] Today in Supreme Court History: August 3, 1994

8/3/1994: Justice Stephen Breyer takes oath.

Justice Stephen Breyer

 

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

[Heated depositions, wellness checks, and strip searches. ]

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

New cert petition! In 2013, a Clovis, Calif. officer disclosed to a fellow officer that his girlfriend had filed a confidential domestic violence complaint against him—knowing full well that she was trapped in a room with him at that very moment. He then brutally attacked her. And though the Ninth Circuit ruled earlier this year that it was "obvious" that disclosing the report put her in grave danger, it granted the first officer qualified immunity anyway, finding that no factually identical prior case gave the officer fair notice the disclosure was unconstitutional. The decision reinforces a circuit split and also conflicts with Supreme Court precedent that says a factually identical case is not necessary in situations where an official has time and opportunity to deliberate (as opposed to a split-second decision on the use of force). Today, IJ asked the Supreme Court to weigh in.

Is school choice racist? Did it originate with post-Brown v. Board opposition to public school integration? Shameful mistruths! IJ Senior Attorney Michael Bindas takes to the Syracuse Law Review and sets the record straight.

Over at the Advisory Opinions podcast, IJ's Anthony Sanders indicts Justice Oliver Wendell Holmes Jr., who turns out to have been a bit of a bad egg Constitution-wise.

The USDA goes after Amazon for allegedly aiding and abetting violations of the Plant Protection Act and the Animal Health Protection Act because importers of illegal plant and animal products had them delivered through Amazon fulfillment centers. An ALJ agrees and fines the company $1 mil. D.C. Circuit: But SCOTUS has told us that aiding-and-abetting liability requires culpability. As for USDA's argument that its strict-liability reading of the statute is entitled to Chevron deference . . . Fun fact: People for the Ethical Treatment of Animals once operated a blog called "The PETA Files," a name that apparently no one on their staff ever read out loud. But that's not the limit of their online presence—they also like commenting on the Facebook and Instagram pages of the National Institutes of Health. Seeking to moderate "off-topic" comments, NIH deploys a keyword filter, concealing comments containing words like "PETA," "cruelty," and "torture." PETA sues, alleging the filter policy violates the First Amendment. D.C. Circuit: And it does. NIH can exercise some moderation, but it has to draw reasonable lines, which the filter policy does not. The DFINITY Foundation is a Swiss-based nonprofit that develops technology that enables the Internet Computer blockchain and its ecosystems, which are powered by novel "chain-key cryptography," allowing smart contracts to serve web directly to end users and mass market Web3 services to run entirely on-chain, all while being governed by a protocol-integrated DAO that decides using liquid democracy. Your summarist doesn't know what any of that means, but can confirm that the Second Circuit has rejected the Foundation's defamation lawsuit against financial analysts who speculated as to why the Foundation's cryptocurrency token lost 95% of its value within two months of its release. North Carolina officer attempts to stop an allegedly stolen car, eventually blocking it into a dead-end section of a parking lot. Officer leaves his car while the driver of the stolen car tries to turn around and drive away. The officer fires one shot through the windshield and more shots through the passenger window, killing the driver. His estate sues for excessive force. District court: Dismissed; the claims in plaintiff's complaint are contradicted by bodycam footage. Fourth Circuit: They're not blatantly contradicted, and that's what it takes for video to torpedo an otherwise valid complaint. Case un-dismissed. West Virginia officer seeks to stop motorcyclist whose passenger isn't wearing a helmet. The motorcyclist flees! But police soon have the pair (plus the motorcyclist's girlfriend) surrounded in their house. Was it a clearly established constitutional violation for officers to (allegedly) force their way into the home? Fourth Circuit: Indeed, the warrantless entry claim goes forward. But it was not excessive force to shoot the motorcyclist dead after he jumped out a window and pulled an AR-15 on an officer. Partial dissent: The officers should also have gotten QI for shooting the unarmed girlfriend, who jumped out after him. Fifth Circuit: Do these tanker-truck drivers transport property in "interstate or foreign commerce" even though they only move crude oil inside Texas? Our precedent—which we very pointedly do not say is correct—requires us to say the answer is yes. Judge Oldham, concurring: And let's have a quick word about how bonkers that precedent is. Allegation: After three youths driving in New Orleans ask an officer for his help in looking for a lost chihuahua, the officer gets a funny feeling and—along with another officer—tails the youths and orders them out of the car at gunpoint. Everything being in order, they're permitted to leave. Unreasonable seizure? Excessive force? Might be, says the Fifth Circuit, reversing the lower court's judgment in favor of the officers. Sadly, however, the panel also notes that it is unable to grapple with plaintiff's argument that qualified immunity sits on a throne of lies—only the Supreme Court can do that. In 2021, Galveston County, Tex. officials redraw voting maps and eliminate the sole majority-minority district, where a combination of Black and Hispanic voters had outnumbered white voters. Fifth Circuit (en banc, 12-6): We overrule our precedent that had allowed coalitions of different minorities to bring voter dilution claims under Section 2 of the Voting Rights Act. A fleet of airlines challenge a proposed DOT rule regulating how they disclose fees during the booking process and seek a stay while their challenge goes forward. DOT: Surely you can't be serious? Fifth Circuit: Don't call me Shirley. And if Congress had wanted to allow rulemaking in this area they would have said something about it. Stay granted. Is the Rio Grande "navigable"? The en banc Fifth Circuit splits on this subject as it applies to a 1,000 foot stretch where Texas' governor installed some tethered buoys. The majority reverses a preliminary injunction but the full trial is still upriver. And one concurring judge says that if the governor thinks there's an invasion—like there was from 19th century cattle rustlers—courts must abdicate defer. Dissents: Haven't y'all read Gibbons v. Ogden? New Orleans crime lab employee warns superiors that one of their drug tests is unreliable. They respond that the lab's employees will themselves be subjected to the potentially unreliable drug tests, and the employee asks to go on leave. His supervisor then goes to his home with two other armed officers to conduct a "wellness check," and they both force their way into the home and force him into a police car to take him to police headquarters. Employee sues, saying the home search and his seizure violated the Fourth Amendment. Qualified immunity? Fifth Circuit: No immunity for the supervisor, but the Nuremberg defense works for the two other officers. Consider this timeline. 2018: Brentwood, Tenn. police detective gets a search warrant for a lawyer's private Facebook records. 2020: Lawyer learns of the search through discovery in a criminal proceeding against her. 2022: Detective testifies that one of the main reasons she got the search warrant was because the lawyer criticized the police, and the lawyer brings a First Amendment retaliation suit. Is the lawsuit timely under the one-year statute of limitations? Sixth Circuit (per curiam): Under our circuit's discovery rule, the lawyer knew about the search and who did the search in 2018, and that's enough to start the clock. Claim time-barred. (Any equitable-tolling argument was forfeited.) Concurrence 1: The real problem is just that the facts show the lawyer should have known in 2018 that she was being retaliated against. Concurrence 2: Our discovery rule seems wrong, and Supreme Court precedent says what matters is just whether the elements of the cause of action have occurred, whether or not the plaintiff knew about them. Ohio school district prohibits students from intentionally using another's non-preferred pronouns that rise to the level of harassment. Parents with children in schools who believe that biological sex is immutable challenge the policy under the First Amendment. Sixth Circuit: You can use their names, thus avoiding pronouns, or not speak to them at all. No injunction. Dissent: The policy is a viewpoint-based regulation that compels students to speak in a manner with which they disagree, namely that biology doesn't determine gender. It should be enjoined. Teen witnesses two assailants—one who is 320 pounds and one who is bald—commit a murder in Saginaw, Mich. in 2015. At a lineup, a police sergeant presents two suspects—neither of whom are bald or weigh anywhere near 300 pounds. The teen says they are not the assailants and later, at trial, testifies to the same. But wait! The sergeant produces a report saying that on the day of the lineup the teen did indeed finger the suspects, who spend over five years incarcerated before they're cleared. Sixth Circuit: Their fabrication of evidence and malicious prosecution claims against the sergeant can go forward. Hamilton County, Ohio judge is indicted on multiple felony charges, including claims that she backdated documents to prevent appeals. Her 2014 trial attracts a great deal of interest; two people attending a pretrial hearing are arrested for taking pictures in the hallway (charges later dropped). They sue. Sixth Circuit (2018): No qualified immunity. Sixth Circuit (2020): Qualified immunity for all claims other than official-capacity claims. Jury (2022): One arrestee's rights were violated, and she gets $35k in damages plus $500k in attorney's fees. Sixth Circuit (2024, unpublished): The arrest was not in retaliation for protected conduct or caused by the county's failure to train its employees, so the jury verdict is reversed and money yanked. (The judge was convicted of improperly using her position to help her brother, spent 75 days behind bars, and saw her law license suspended.) Portage County, Ohio woman left near dead with severe head injuries after a hammer attack. She first has no memory of what happened, but, after police show her a photo of a man who they say did it, she eventually (months later) says she knew all along that he did it. Suppress the identification? Ohio Court of Appeals (2018, over a dissent): Nah. The cop shouldn't have done that, but her identification of the man was nonetheless reliable. Sixth Circuit (2024, over a dissent): Calling the cop's procedures "'impermissibly suggestive' is a gross understatement." Habeas granted. Listen, friends: We've all had that deposition where we thought opposing counsel crossed the line from zealous representation to unreasonable and obstructive conduct. Don't curse them out afterwards. Definitely don't physically push them. And definitely, definitely don't later tell the district judge you "unintentionally" brushed against them. Seventh Circuit: Sanctions award affirmed. The Seventh Circuit voted to go en banc last year because its take on the Rooker-Feldman doctrine was a mess. After careful deliberation, the en banc court holds that the Rooker-Feldman doctrine is, in fact, a mess and that SCOTUS should really do something about that. In the meantime, if you add up the votes across three dueling en banc opinions, different parts of which are joined by different judges, the court reaches at least a few holdings about how it's going to apply Rooker-Feldman going forward, but, honestly, your summarist ran out of fingers trying to count the votes and respectfully refers you to the summary in Judge Hamilton's lead opinion, which we're sure is right. Lobbying gets a bad rap, but, the Eighth Circuit reminds us, petitioning the gov't for a redress of grievances is, in fact, a core component of the First Amendment. As a result, Missouri's prohibition on former state legislators and staff working as lobbyists for two years after they leave office is subject to strict scrutiny, which it comes nowhere close to passing. Allegation: Over the course of three days, pretrial detainee at White County, Ark. jail repeatedly alerts officers that a spider bite has caused an infection in his arm and hand, which are oozing pus and swelled to the size of a small watermelon. They ignore him. Eighth Circuit: We've previously held that ignoring a detainee's serious medical need for two days is unconstitutional. The lower court's denial of qualified immunity to the officers is affirmed. Man suffering from mental illness calls Las Vegas police for help. Though he's unarmed and nonthreatening, two officers drag him to the ground and pin him down. He dies of asphyxiation. Officers: We stopped kneeling on him after he was cuffed; in the prior case at issue, officers continued pinning down the decedent after he was cuffed. Ninth Circuit: No need for a factually identical case here; he wasn't a threat. No qualified immunity. Allegations: Georgia political candidate runs for city commission on a platform of "replac[ing] Caucasian employees with African Americans," including, specifically, the white city manager. He's elected, warns the city manager he'll be replaced with a Black city manager, and encourages the other Black commissioners to vote to do just that. The fired city manager is then told he can't return to his former position as finance director because he "did not look like" them. Eleventh Circuit: "The question for us is whether those allegations permit the inference that the City Commission fired McCarthy because he is white." There are two things your summarist knows to be true: Defamation lawsuits draw more attention to the alleged defamation, and nobody is ever going to start referring to Twitter as X. Relatedly, the Eleventh Circuit (per curiam) holds that former Chief Justice of the Alabama Supreme Court Roy Moore cannot sue over tweets calling him a pedophile, which were inspired by multiple news reports of women who accused Moore of groping them while they were underage. Each week, the federal courts of appeals decide cases with complicated facts featuring lurid tales of murder, mayhem, and misadventure. So when the Eleventh Circuit starts its opinion with "Warning: This is going to get messy," you know what you're going to get: an extended discussion of class-certification standards under Rule 23. Defendant: Google had to pull my account information in response to gov't's "geofence" warrant, and I want all the evidence suppressed. Eleventh Circuit: Maybe it did. But the only account information Google actually turned over in response to that warrant belonged to your girlfriend's daughter, so you don't have standing to object. Georgia prison officers invasively strip-search a woman visiting her inmate husband for seemingly no reason, violating prison policy in the process and dissembling about the incident afterwards. Woman sues under the Fourth Amendment, and officers assert qualified immunity. Eleventh Circuit: Strip searches are "embarrassing and humiliating," the Constitution requires that prison visitors can be subjected to them only if there is reasonable suspicion and the search is not more intrusive than necessary, and most circuits had held as much when this search occurred. But our circuit doesn't allow out-of-circuit precedent to clearly establish the law (or care that prison policy was violated), so the officers get qualified immunity. Concurrence 1: We should take this case en banc because our refusal to consider an out-of-circuit consensus goes against Supreme Court authority. Concurrence 2: K. Newsom, Considerations on Qualified Immunity, 44 11th Cir. L. Rev. 211 (2024). One of the great joys of civil procedure is that you can, as in this Eleventh Circuit case, recite truly bonkers allegations about secret affairs with appellate judges and quid-pro-quo arrangements to spring criminal defendants and then just say there's no need to bother with any of it because the whole thing is barred by the Rooker-Feldman doctrine anyway. Wayne County, Mich. sheriff's deputies seek to forfeit woman's car based on allegation that her passenger might have had drugs in the car at some previous time (no drugs were found). Michigan Supreme Court (over a dissent): To be forfeitable under the statute, a car has to be used to transport drugs for their sale or receipt. That didn't happen, so no forfeiture. (This is an IJ case.)

New case! In 2009, officials tried to install a new sewer line on Melisa and Michael Robinson's property, a small mobile home community they own and operate in Okay, Oklahoma. But they made a hash of it! They didn't grade the pipes properly, and sewage backed up into the homes. They hit an underground power line, killing the power and blowing out tenants' refrigerators and air conditioners. Moreover, officials never bothered to obtain the necessary easement or even notify the Robinsons before they started digging. All of which, after 13 years of litigation, led to the Oklahoma Supreme Court (and a jury) declaring the whole thing to be an unconstitutional taking. The Robinsons are now owed over $200k, but—and here's where IJ comes in—the town says it does not have to pay and that court-ordered judgments are merely unenforceable IOUs. Fiddlesticks! The Fifth Amendment is made of sterner stuff, and the gov't must pay for what it takes. Click here to learn more.

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[Sasha Volokh] I've Looked at Law from Both Sides, Now

[I really don't know law at all.]

Hey all, I wrote this right after Joni Mitchell sang "Both Sides, Now" at the Grammys in February, but I only just got around to recording it and posting it on YouTube. Enjoy, and please share with the lawyers or law students in your lives!

P.S. If you want more law songs, check out my "You Don't Need a Canon" (studio version here, music video version here) and "The Ballad of FDA v. Brown & Williamson". Or, if law isn't your thing, try "Palladio Shark" or my "Sasha Reads" playlist of favorite poetry.

P.P.S. My favorite version of "Both Sides, Now" is the original Judy Collins recording, but also check out the version from the recent movie CODA (album version here, partial movie clip here). My song uses the CODA arrangement at 1.5x speed.

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[Josh Blackman] Today in Supreme Court History: August 2, 1923

8/2/1923: President Calvin Coolidge's Inauguration. He would appoint Justice Harlan Fiske Stone to the Supreme Court.

President Calvin Coolidge

 

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[David Bernstein] Trump is Wrong (and Offensive) re Harris's Racial/Ethnic Identity

Given Donald Trump's recent remarks about Kamala Harris' racial/ethnic identity, it's an unfortunate coincidence that I posted something earlier this week noting that Harris once emphasized her Indian heritage more.

So just to formally disassociate myself from Trump's views, no, I do NOT think that Harris is faking a black identity, and the fact that she once gave more public attention to the Indian part of her heritage as part of her political persona does NOT mean that she is insincere in also having a black identity.

And it's quite silly and offensive to say she can't identify with *both* her black and Indian heritages. And she has! From what I can tell, from the earliest point in her public career she was quite forthright in stating that her (largely absent) father was black, her mother was Indian, and that her mother took pains to raise her with exposure to both cultures and identities.

Not surprisingly, she emphasizes one or the other publicly depending on the context–doing an Indian cooking segment with Mindy Kaling vs. speaking to a gathering of her historically black college sorority, for example. And of course sometimes there is political salience to emphasizing one identity or another. But she's is, after all, a politician, so she should be expected to act like one!

As the author of a book about modern racial classification in the US, one thing I've noted is that she rarely if ever refers to herself as "multiracial." That's also quite understandable. A 'multiracial' movement gained steam in the US in the early 1990s, powered primary by young activists with one black and one non-black parent. One thing that particularly irked them was that not only could you not check "multiracial" on the Census and other federal forms (you still can't), but you had to choose only one racial box to check, you could not check "Asian American" and "Black," for example (now you can, since 1997). But when Harris came of age a bit before this was a "thing," so it's not surprising that she doesn't use the multiracial nomenclature.

UPDATE: Here is Trump's statement, made during an interview at a conference of black journalists: "I didn't know she was Black until a number of years ago when she happened to turn Black and now, she wants to be known as Black. So, I don't know, is she Indian or is she Black?… she was Indian all the way, and then all of a sudden she made a turn, and she went—she became a Black person." I suppose Trump is also a product of his times, when you had to "choose" one identity, at least officially, but I suspect that it more comes down to him trying to turn a segment of black voters against her by falsely suggesting that she's exploiting a black heritage that she previously neglected.

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[Jonathan H. Adler] Sixth Circuit Puts Net Neutrality Rule on Ice

[A three-judge panel concludes the rule's challenger are likely to succeed on the merits.]

Today a panel of the U.S. Court of Appeals for the Sixth Circuit granted broadband providers' request for a stay of the Federal Communications Commission's rule that would classify broadband internet providers as common carriers under the Communications Act, often referred to as "net neutrality." According to the panel, the broadband providers were likely to succeed on the merits–in part due to the major questions doctrine–and this justified staying the rule pending review of their petitions. The panel consisted of Chief Judge Sutton and Judges Clay and Davis.

From the court's unanimous per curiam order:

Broadband internet refers to the set of platforms that permit users to access the internet at speeds faster than dial-up services. . . . Over three-quarters of Americans have access to high-speed broadband service. . . . In addition to renting or constructing the physical network connecting computers, broadband internet providers offer other services that enable subscribers to access content from "edge providers"–namely websites, such as Google, Netflix, and Amazon, that host content on their own networks. . . . These services include DNS, short for Domain Name Services, a "phonebook" that matches web addresses (e.g., http://www.ca6.uscourts.gov) with their IP (internet protocol) addresses. And they include "caching" services that speed up data access by storing copies of edge provider content closer to the user's home system. . . .

The Communications Act of 1934 covers broadband providers, and it gives the Federal Communications Commission authority to promulgate rules and regulations under the Act. The extent of that regulatory authority turns on whether the providers count as common carriers under the Act. If a business counts as a common carrier, it must comply with Title II of the Act, which includes rate-review regulations and non-discrimination obligations. . . . For other businesses, the Commission may impose only the ancillary regulations authorized under Title I, which generally preserve the ability of companies to respond to market conditions. . . .

The development of the internet presented the Commission with a classification challenge. When Congress first enacted this law in 1934, it defined common carriers to include anyone involved in "wire communications." . . . Think telephone companies and the monopolies that went with them. But by the 1970s, telephone companies and others had begun competing to offer data processing services through telephone wires. . . . Common carrier rules designed for telephone-wire monopolies, the Commission realized, could inhibit the development of "data information services." . . . The Commission responded by distinguishing the "basic transmission service" that transferred data between two points from the "enhanced service" that allowed subscribers to interact with data stored elsewhere.

Responding to these developments, Congress enacted the Telecommunications Act of 1996. It established a new category of "telecommunications service," which offers "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." . . . The Commission must treat telecommunications service providers as common carriers. . . . The 1996 Act also created a new category of "information service," which applies to a company that offers "a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." The Commission may not treat information service providers as common carriers. . . .

After passage of the 1996 Act, the Commission for many years took the view that broadband internet access services were information services, not telecommunication services. That left them free of Title II's common carrier requirements. . . .

Reviewing a decision from the Ninth Circuit, the Supreme Court upheld this classification under Chevron. [See Brand X]. . . Specifically, the Supreme Court found that the classification of broadband internet access offered through cable modems as an information service was a permissible interpretation of the Communications Act. . . .

In 2010, the Commission continued to treat broadband internet services as something covered by Title I but opted to alter its rules based on a debate over the risk that broadband providers could favor some edge providers' content over others. . . . The Commission tried to use its Title I authority to impose "open internet" rules on broadband providers that banned them from blocking or unreasonably discriminating between lawful content. . . . A federal court invalidated this rule on the ground that the Commission could impose such requirements only under Title II.

The next chapter unfolded in 2015. That year, the Commission promulgated a rule that categorized broadband providers as common carriers and required net neutrality under Title II. . . .

In 2018, the Commission returned to its prior view. It issued a new rule that broadband providers fall under Title I and do not qualify as common carriers. . . . The D.C. Circuit again upheld the classification and again did so under Chevron. . . .

On May 22, 2024, the Commission switched positions again. Under its current rule, the Commission has classified broadband providers as common carriers under Title II. . . . The rule requires broadband providers to disclose "accurate information regarding the network management practices" and forbids them from engaging in blocking, throttling, paid prioritization, and "unreasonable interference" with users and edge providers. . . . The rule at this point forbears other Title II regulations, including rate regulation and tariffing. . . .

The petitioners are likely to succeed on the merits because the final rule implicates a major question, and the Commission has failed to satisfy the high bar for imposing such regulations. Although the petitioners have raised other arguments in support of their position that the FCC exceeded its authority in promulgating the rule at issue, such as whether broadband can be classified as a telecommunications service under the Communications Act and the stare decisis effect of the Brand X decision, we decline to reach those arguments at this preliminary stage.

An agency may issue regulations only to the extent that Congress permits it. . . . When Congress delegates its legislative authority to an agency, it presumably resolves "major questions" of policy itself while authorizing the agency to decide only those "interstitial matters" that arise in day-to-day practice. . . .When Congress upsets that presumption and delegates its power to “alter the fundamental details of a regulatory scheme” to an agency, it must speak clearly, without "hid[ing] elephants in mouseholes." The more an agency asks of a statute, in short, the more it must show in the statute to support its rule.

Net neutrality is likely a major question requiring clear congressional authorization. As the Commission's rule itself explains, broadband services "are absolutely essential to modern day life, facilitating employment, education, healthcare, commerce, community-building, communication, and free expression," to say nothing of broadband's importance to national security and public safety.

Congress and state legislatures have engaged in decades of debates over whether and how to require net neutrality. Because the rule decides a question of "vast economic and political significance," it is a major question. . . . The Communications Act likely does not plainly authorize the Commission to resolve this signal question. Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers. To the contrary, Congress specifically empowered the Commission to define certain categories of communications services–and never did so with respect to broadband providers specifically or the internet more generally. . . . Absent a clear mandate to treat broadband as a common carrier, we cannot assume
that Congress granted the Commission this sweeping power, and Petitioners have accordingly shown that they are likely to succeed on the merits. . . .

Chief Judge Sutton also wrote a separate concurrence, emphasizing that even without the major questions doctrine, the FCC would likely lose. As Sutton notes, "The best reading of the statute, and the one in place for all but three of the last twenty-eight years, shows that Congress likely did not view broadband providers as common carriers under Title II of the Telecommunications Act."

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[Josh Blackman] Senator Schumer Goes Nuclear With "No King Act"

[The law would direct lower courts how to reject claims of presidential immunity, and strip SCOTUS of appellate review.]

Very little actually surprises me anymore. Even something unexpected is generally within some range of possibility that I anticipated. The "No Kings Act," which was introduced today by Senate Majority Leader, surprised me. No, just not surprised. It stunned me. I was actually speechless.

At a high level, the statute purports to reverse Trump v. United States, eliminate criminal presidential immunity (but not civil), and divests the Supreme Court of appellate jurisdiction over any prosecution of a former President, or even a challenge to the statute itself.

Let's walk through the bill. Section 2 explains that the "purpose" of the law is to "clarify that a President or Vice President is not entitled to any form of immunity from criminal prosecution for violations of the criminal laws of the United States unless specified by Congress." Clarify? That statement expressly conflicts with the holding of Trump. And Section 3 provides, "A President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal laws of the United States unless specified by Congress." This statement flatly contradicts how a majority of the Supreme Court interpreted Article II.

Curiously, the statute says nothing at all about civil immunity under Nixon v. Fitzgerald. Apparently that made-up immunity, which was the basis of Chief Justice Roberts's decision, is A-Okay. Also, nothing in Trump even hinted that the Vice President has immunity. This provision could have some unintended consequences for the Vice President acting as President of the Senate, who (under modern law) receives some protections under the Speech or Debate Clause.

It gets worse, The law provides that federal courts "may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress." If taken literally, this statute directs lower courts to not follow binding Supreme Court precedent–they cannot consider the exact thing that the Supreme Court said must be considered. If only Republicans responded this way to Planned Parenthood v. Casey: federal courts "may not consider' whether a law imposes a substantial burden on access to abortion. That would have been so simple!

Congress is certainly free to make such statements. It is a coordinate department of government that is entitled to interpret the Constitution. But unless we are willing to cross the rubicon of judicial supremacy, lower courts would be required to ignore Congress and follow SCOTUS. Now don't get me wrong. I despise Cooper v. Aaron. If it takes Trump Derangement Syndrome to blow up judicial supremacy, then that may have been worth it. I think of Heath Ledger as the Joker walking away from the exploding hospital. But Schumer doesn't quite have the chutzpah to go that far. Instead, he proposes a ham-handed way of playing keep-away from John Roberts.

Section 4 of the law modifies judicial review of "any criminal proceeding commenced by the United States" against a President or former President. Actions can be brought in the applicable district court. But here comes the kicker: the judgment of the court of appeals with regard to immunity is final!

"The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President."

A conviction of the President of the United States would stop with the inferior courts, and most likely, the D.C. Circuit, which by the way, will have a Democratic-appointed majority for at least the next two decades or so. If only President Reagan had thought of this idea when he had appointed the majority of judges on that court!

What else can SCOTUS not do? The bill lists eight items that the Supreme Court cannot do it itself, or direct other courts to do:

(A) dismiss an indictment or any other charging instrument;

(B) grant acquittal or dismiss or otherwise terminate a criminal proceeding;

(C) halt, suspend, disband, or otherwise impede the functions of any grand jury;

(D) grant a motion to suppress or bar evidence or testimony, or otherwise exclude information from a criminal proceeding;

(E) grant a writ of habeas corpus, a writ of coram nobis, a motion to set aside a verdict or judgment, or any other form of post-conviction or collateral relief;

(F) overturn a conviction;

(G) declare a criminal proceeding unconstitutional; or

(H) enjoin or restrain the enforcement or application of a law.

This is breathtaking. If Attorney General Garland were to lock up Donald Trump at Guantanamo Bay, and the D.C. Circuit looks the other way, the Supreme Court would have no habeas power to release him. I'm old enough to remember debates about the Suspension Clause and jurisdiction stripping from the Bush era. Democrats apparently favor full the full panoply of habeas rights for the mastermind of 9/11, but not for Trump. Priorities. If only Lincoln had such powers! John Merryman and William McCardle could not be reached for comment.

So what should the judiciary do with such a statute? Well, the bill imposes strict limits on whether these restrictions can even be challenged. Facial challenges must be brought within "180 days after the date of enactment of this Act." As I think about the Court's "facial" analysis in Rahimi and NetChoice, I cringe. Certainly this statute must have some constitutional application? So a facial challenge would fail, right? What if the President breaks the law on Etsy?

And if President Harris wins, and lets this statute go into effect, a facial challenge could never be brought. To test the constitutionality of this statute, future Presidents would have to wait to be indicted, after they leave office. A facial challenge would no longer be possible. Everyone who criticized Whole Woman's Health v. Jackson and S.B. 8 can switch sides. I can think of standing arguments why a sitting President would be able to challenge this law in office, notwithstanding its limitations–talk about a chilling effect–but I'll save those points for another time.

And an as-applied challenge "may only be brought not later than 90 days after the date of such enforcement or application." I don't even know when this clock would start ticking. If a former President is indicted, and a district court (following this statute) denies immunity, would the defendant then bring a collateral civil challenge to the statute in federal court? Wouldn't there be abstention doctrines at play? Wouldn't it make the most sense to consider the immunity issue on direct appeal–and that appeal would necessarily consider the constitutionality of the "No King Act"? Even under Justice Barrett's conception of immunity, the denial of immunity would trigger an interlocutory appeal. Maybe I'm missing something, but I have no idea how an as-applied challenge would even work here.

Let's say that a former President manages to bring some sort of as-applied challenge in a timely fashion in the right court. The statute even purports to define the appropriate standard of review: "A court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional." A presumption of constitutionality, coupled with a "clear and convincing evidence" standard! James Bradley Thayer and Oliver Wendell Holmes would be proud.

Is there any other similar statute that directs the courts to apply a particular standard of review? Some of the bills to "overrule" Loper Bright direct Courts to apply Chevron deference. That could work under the APA (assuming Justice Thomas is wrong on whether Chevron is unconstitutional). But can Congress direct the courts how to interpret a claim of constitutional immunity? I think the Supreme Court would find this statute unconstitutional, but they would have no power to hear the case!

Oh, and by the way, challenges to the statute itself can only be litigated in the District of Columbia District Court, and the D.C. Circuit. And the buck stops with Chief Judge Sri Srinivasan:

In a civil action under this subsection, a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.

The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.

More jurisdiction stripping!

To be sure, this bill is prospective. We can imagine what an Attorney General Jeff Clark would do with this bill, right? Certainly this bill can't be about Trump, right? Ex Post Facto Clause, right? Wrong.

If an action at the time of its commencement is not subject to subsection (a) or (b), but an amendment, counterclaim, cross-claim, affirmative defense, or any other pleading or motion is filed such that the action would be subject to subsection (a) or (b), the action shall thereafter be conducted pursuant to subsection (a) or (b), as applicable.

Huh? Am I reading this right? Any existing criminal that is in effect now could be brought under the auspices of this bill. In other words, if any pleadings are made about immunity in Judge Cannon's court, she would then be required to reject an immunity claim? Could this be the rule?

There is one provision that I can't quite make heads-or-tails of:

No court may issue relief sua sponte on the ground that a provision of this Act (including this section), or its enforcement or application, is unconstitutional.

What is going on here? I think this is hinting at an issue where some other federal court, hearing some related issue, may opine on the constitutionality of the statute.

Perhaps the most brazen part of the bill is Section 6(b)(vi):

All appeals from the United States District Court for the Northern District of Texas, Amarillo Division, shall be taken to the United States Court of Appeals for the District of Columbia Circuit, which shall have exclusive jurisdiction to hear an appeal in a civil action under this subsection. This provision shall be known as the "Stealth Impeachment of Judge Matthew Kacsmaryk Law."

No, Section 6(b)(vi) is not in the bill, but you believed it. And you better believe progressives will try to strip the Fifth Circuit of jurisdiction.

***

Let me be clear. This bill has no chance of passage in the current Congress. And if Trump wins, I think the judiciary is safe for another four years. But if Harris prevails, and the Democrats have majorities in both houses, they will find a way to pass this bill. Remember, this is not some sort of fringe proposal from the Squad, but was introduced as a priority bill by the Majority Leader. The whirlwind cometh. Once the Supreme Court's jurisdiction is stripped for presidential immunity, it is only a matter of time before similar bills are passed for abortion, the Second Amendment, RFRA, and so on. This bottomless hole keeps going deeper.

President Biden's pointless op-ed, which did not even bother to specify whether a statute could impose term limits, was apparently just a warm-up act. Senate Democrats are going all-in on destroying the judiciary as we know it. Remind me again how cataclysmic it was when Trump referred to "Obama judges"? I welcome comments from the Never-Trumpers who think Kamala Harris is the last chance to save our republic.

The post Senator Schumer Goes Nuclear With "No King Act" appeared first on Reason.com.

[Josh Blackman] No Part IV For Biskupic?

This morning I did something I have not done in some time. I loaded CNN.com. I wanted to see the latest in Biskupic's series of "Exclusive" reports on the Supreme Court. There was nothing. I checked again, and again, and again. No Part IV. It is just past noon eastern now, and still nothing. Is this series over? If so, we learned very little. The primary new insight was about Barrett's flip in Moyle from the emergency docket to the oral argument. Everything else was pretty apparent from the published decisions.

I have a love-hate-yawn relationship with Biskupic's reporting. I am always eager to see the scintillating details, even though I deeply regret that people are still leaking to the press after Dobbs. These sorts of stories do irreparable damage to the collegiality and openness of the Justices. And to what purpose? Does anyone, other than a few nerds, really care about how the sausage is made? In the end, I yawn because not much is learned. Really, the cost to the judiciary of these leaks far exceeds whatever trivial value we gain from these "Exclusive" stories. We went a few years without any Biskupic scoops, and everything was just fine.

The post No Part IV For Biskupic? appeared first on Reason.com.

[Josh Blackman] Gillespie Interviews Barnett on Originalism, Obamacare, and the Libertarian Movement

I encourage everyone to watch Nick Gillespie's cool interview with Randy Barnett. They touch on Randy's role in developing originalism, the challenge to Obamacare, and the future of the libertarian movement. I would also commend Randy's recent essay, fittingly titled "Libertarianism Updated." And if you haven't bought Randy's new book yet, you should. I'm sure he would be happy to sign it next time you see him.

The post Gillespie Interviews Barnett on Originalism, Obamacare, and the Libertarian Movement appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 1, 1942

8/1/1942: Military commissions conclude for eight nazi saboteurs. The Supreme Court upheld the constitutionality of these trials in Ex Parte Quirin.

The Stone Court (1942)

The post Today in Supreme Court History: August 1, 1942 appeared first on Reason.com.