Eugene Volokh's Blog, page 43

[David Bernstein] Setting the Record Straight on Masking Rules at George Mason University

[Contrary to an article in the Chronicle of Higher Education, Mason is not fulfilling even its basic legal obligations to prevent antisemitic violence.]

George Mason University, where I teach, is embroiled in federal civil rights investigations over how it has handled campus antisemitism, and over racial preferences in hiring and admissions.

Various members of the faculty and faculty institutions, notably the local chapter of the AAUP and the Faculty Senate, have risen in defense of President Gregory Washington. The latter organization voted on a hastily-drafted resolution that praised Washington for using racial preferences to try to match the ethnic composition of the faculty with that of the student body. Given that this is blatantly illegal, and was even before the 2023 SFFA decision cracked down on racial preferences more broadly, the resolution not surprisingly attracted additional federal attention.

In any event, I was, as the young people say, "triggered" by a particular paragraph written by professors Tim Gibson, Bethany Letiecq, and James H. Finkelstein in an opinion piece in the Chronicle of Higher Education (paywalled):

The most confusing aspect of this multipronged MAGA-movement attack on Washington is that he has already given his conservative critics everything they wanted. First, far from ignoring antisemitism on campus, Washington and his team have been aggressive — sometimes excessively so — in responding to allegations of antisemitic speech following Hamas's attack on Israel in October 2023. Over all, George Mason has taken stringent policing measures to prevent violence, including implementing an anti-mask policy transparently aimed at students wearing keffiyehs.

This is at best disingenuous, and borders on fabrication. Virginia has a state law that forbids masking for the purposes of concealing identity.

It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.

Virginia statutes § 18.2-422.

The law is unambiguous, and has been upheld in state court against a First Amendment challenge. Almost all egregious misbehavior on college campuses, include at least two assaults on Jewish students at George Mason, has been undertaken by masked students.

Shortly after the Hamas massacre on October 7, 2023 was greeted with masked hate mobs at George Mason praising Hamas, I urged university officials to enforce the law. I was ignored, but I heard from other sources that the university was refusing to enforce the law on the grounds that the local (leftist) Commonwealth's Attorney informed the university that she would not prosecute anyone for violating the law unless they also committed another crime while masked.

I pointed out to university officials that (a) university police (who are official county police) are still responsible for enforcing the law, and if the CA refuses to prosecute, that's her issue; and (b) putting law enforcement aside, the university could have an internal ban on masking because it's illegal, and just use internal disciplinary processes instead of the legal system.

I also eventually learned that the university student handbook already required students to comply with state law, so the university did not have have to implement any new policy to punish violating the statute. (And of course, the point was not to punish students who wear masks, but to stop them from wearing them to begin with, by informing them that they will be punished if they do.)

Anyway, none of my entreaties, or those of anyone else concerned with the issues, went anywhere until Virginia Attorney General Jason Miyares sent a letter to all state universities reminding them of the anti-masking law and their obligation to enforce it.

Even that, however, did not get the university to enforce the anti-masking law. Rather, the university implemented a policy that allows students to wear masks to conceal their identity, but requires them to identify themselves if asked. That's a marginal improvement, but it's quite obviously not what the law says.

I assume the university believes that it's balancing the free speech rights of the students with public safety, but I'm at a loss to figure out where the university gets the notion that it can pick and choose which laws to enforce based on its own assessment of the equities involved.

Beyond the (relatively minor, as I understand it) assaults noted previously, the threat of  anti-Jewish violence from George Mason students is not merely hypothetical. One student has been arrested for a plot to attack the Israeli consulate in New  York. Two students, sisters and leaders of the university's SJP chapter, were arrested for vandalizing university property. Their home was found to contain vile antisemitic literature, a collection of weapons, and terrorist flags.

Especially in light of that information, the notion that George Mason University has been "overly aggressive" in trying to prevent antisemitic violence because it has implemented a policy that falls far short of its pre-existing legal obligations is risible.

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[Eugene Volokh] "Plaintiff's Complaint Is Focused on Discrimination Related to Positionality Across Multiple Marginalized and Vulnerable Communities"

[Not enough to get pseudonymity for plaintiff's employment discrimination claim, at least in S.D. Tex.]

The plaintiff in Schoene v. Rice Univ. filed the complaint (alleging sexual orientation discrimination, disability discrimination, breach of contract, and constructive discharge) under his own name, but then moved to retroactively pseudonymize it five days later. The problem is that longstanding Fifth Circuit precedent is quite clear that employment discrimination plaintiffs generally must sue under their own names, notwithstanding the argument that this can cause them professional harm. And while plaintiff claims that he's facing not just "professional harm" and "stigmatization," but also unspecified "privacy, safety, and serious health consequences as case implicated medical diagnosis, as well as personal issues of both sexuality and disability," that too is generally not enough for pseudonymity.

Plus retroactive pseudonymity is generally even harder to get. And even when courts are potentially open to pseudonymity claims, for instance when there's real evidence of risk of physical or mental harm, or unusually strong privacy claims, they generally require some pretty specific, concrete evidence: General claims of "discrimination related to positionality across multiple marginalized and vulnerable communities" usually don't cut it.

The court unsurprisingly denied the motion to proceed under a pseudonym, though without a detailed opinion. Note that plaintiff, a humanities professor, is pro se; but his faculty web site says he studied law at a leading Canadian university, he was the editor-in-chief of his law school's journal, his teaching and scholarly interests include some law-related subjects (such as "Queer Ecojustice" and "Law and Literature").

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[Josh Blackman] Today in Supreme Court History: July 29, 1942

7/29/1942: Supreme Court hears oral argument in Ex Parte Quirin.

The Stone Court (1942)

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[Ilya Somin] Federal Court Rejects Trump Lawsuit Challenging Illinois Sanctuary Policies

[The court ruled the state and local policies are protected by the Tenth Amendment.]

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On July 25, federal district court Judge Lindsay C. Jenkins issued a ruling rejected the Trump Administration's lawsuit challenging Illinois "sanctuary" policies restricting state and local government assistance to federal immigration enforcement policies. Judge Jenkins held that the policies in questions generally do not conflict with federal immigration law, because "any collaboration under the ]Immigration and Nationality Act] is permissive, not mandatory." Federal law allows state cooperation, but does not require it. In addition, mandatory cooperation is barred by the Supreme Court Tenth Amendment "anti-commandeering" precedent, which bars the federal government from requiring state and local governments to help enforce federal law:

Even if the Sanctuary Policies "obstruct[] federal immigration enforcement, the United States'[s] position that such obstruction is unlawful runs directly afoul of the Tenth Amendment and the anticommandeering rule." California II, 921 F.3d at 888. "Extending conflict or obstacle preemption to [the Sanctuary Policies] would, in effect, 'dictate what a state legislature may and may not do.'" Id. at 890 (citation modified) (quoting Murphy, 584 U.S. at 474). It would transform a statutory provision giving States "the right of refusal" into a provision requiring state action. Id. As explained, "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs." Printz, 521 U.S. at 925.

Ironically, the anti-commandeering rule was first elaborated in Supreme Court decisions written by conservative Supreme Court justices on issues involving environmental and gun control mandates. At the time, these rulings were cheered by conservatives and decried by many on the left. But, during Trump's first term, and now again in his second, the main focus of anti-commandeering litigation shifted to immigration policy, resulting in a shift in its political valence. In 2018, the Supreme Court furthered strengthened the anti-commandeering doctrine in Murphy v. NCAA, a ruling written by conservative Justice Samuel Alito. That ruling had the predictable- and predicted by me - effect of bolstering sanctuary cities. Judge Lindsay's recent ruling relies heavily on Murphy.

As Judge Jenkins notes, his decision is consistent with numerous similar rulings against Trump's first-term efforts to coerce sanctuary cities. For more detail, see my Texas Law Review article assessing litigation arising from Trump's first-term actions in that field. In that article and elsewhere, I also explained why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and why judicially enforced limits on commandeering  provide valuable protection for federalism and the separation of powers.

As also described in my Texas Law Review article, the first Trump Administration also lost a long list of cases in which it tried to withhold federal grants from sanctuary jurisdictions by attaching immigration-related conditions not authorized by Congress. That losing streak has continued in Trump's second term.

Judge Jenkins' ruling will likely be appealed. But unless the Supreme Court makes major changes in its federalism jurisprudence (which I hope and expect it will not do), the administration is likely to continue to lose these types of cases.

 

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[Jonathan H. Adler] Professor Greg Sisk on the Trump Administration's Failure to Transfer Federal Grant Litigation to the Court of Claims

[Professor Sisk suggests that in jurisdictional disputes in litigation against the Trump Administration, an earlier answer would be better.]

Federal grant recipients and beneficiaries have filed multiple suits in federal district court challenging the Trump Administration's grant cancellations. Insofar as these suits seek the disbursement or payment of promised funds, it would seem jurisdiction lies in the Court of Federal Claims. Yet the Trump Administration has not (as yet) sought to transfer any of these cases.  Why not?

Professor Greg Sisk is one of the nation's foremost authorities on civil litigation with the federal government. Indeed, he wrote the hornbook on the subject. He is also the Associate Dean for Research and Pio Cardinal Laghi Distinguished Chair in Law at the University of St. Thomas School of Law.

Below is a guest post by Professor Sisk exploring this question.

*    *   *

Given my study of civil litigation with the federal government, the current bevy of lawsuits challenging various Trump Administration initiatives falls right into my scholarly wheelhouse. From mass firings (reductions in force) of federal employees to immigration battles and beyond to spending disputes, nearly every day brings me something new to watch with interest. At the still early stage for most of these lawsuits, the focus has been on procedural and jurisdictional questions, which are grist for my litigation-with-the-federal-government mill.

Take, for example, the proliferation of lawsuits in federal district courts around the country provoked by the Trump Administration's cancellation of thousands of federal government grants amounting to billions of dollars. In addition to other defenses, the Department of Justice regularly asserts that (1) grants are simply contracts and (2) contract disputes involving the federal government fall within the exclusive jurisdiction of the special Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491.

The Supreme Court has weighed in on this jurisdictional choice, at least preliminarily on the so-called shadow docket and at least with respect a lawsuit where the plaintiffs are disappointed grant recipients. Granting the government a stay of a district court injunction to resume payments on certain grants, the Supreme Court ruled in Department of Education v. California that the government was likely to prevail on its subject matter jurisdiction argument. The Supreme Court majority viewed the grant claims in that case as grounded in contract and thus within the exclusive jurisdiction of the Court of Federal Claims.

Why then has the Department of Justice repeatedly failed to act in the multitude of grant dispute lawsuits filed in multiple district courts by simply moving to transfer to the Court of Federal Claims?

Few have written more scholarly works on the Tucker Act and the Court of Federal Claims than have I (e.g., here and here). And yet I confess that I am perplexed by the government's failure to initiate a special statutory process tailored to resolve this very kind of jurisdictional puzzle.

In 1988, Congress adopted a particular procedural mechanism to achieve a prompt resolution of this category of jurisdictional questions. Under 28 U.S.C. 1292(d)(4), if the federal government moves in district court to transfer a case to the Court of Federal Claims under the Tucker Act, that motion stays further proceedings in the district court until 60 days after the judge rules on the transfer motion (admittedly with a key exception I'll note below). Further, if the district court denies the motion to transfer, the government then may file an immediate interlocutory appeal on the jurisdictional question — and that appeal bypasses the regional circuit and goes directly to the U.S. Court of Appeals for the Federal Circuit.

Now there is an exception in this jurisdictional statute that allows the district court during that stay period to grant preliminary relief when expedition is necessary. That of course means that the government couldn't avoid the possible issuance of temporary injunctive relief in these grant cancellation cases. But it would prevent the district court from proceeding to the merits, presumably halting discovery, and again would provide for an immediate appeal for expeditious resolution of the jurisdictional question in the Federal Circuit.

The United States has used this interlocutory appeal provision repeatedly over the past three decades, turning to the Federal Circuit with its nationwide jurisdiction to solidify the authority of the Court of Federal Claims over claims that are in essence attempts to obtain money from the federal government. This jurisdictional issue is hardly new — it is the longstanding question of whether a case involves a "disguised" Tucker Act claim that has been wrongly brought in district court. The Federal Circuit has issued several key jurisdictional precedents in these interlocutory appeals.

As shameless self-promotion, I am especially familiar with this appellate jurisdiction statute because I wrote Subsection 1292(d)(4) when I served in the Department of Justice. I convinced my DOJ superiors to promote my draft to the House Judiciary Committee where it was eventually adopted in judicial reform legislation in 1988. As I say in a footnote in my hornbook on this statutory subsection, my colleagues for a time honored/teased me by referring to these interlocutory appeals as "Sisk Appeals."

Anyway, so why is the government repeatedly failing to take the step of moving in the district court to transfer to the Court of Federal Claims, which then triggers a stay from moving to the merits and allows an interlocutory appeal to the Federal Circuit if the motion is denied?

Three possible reasons occur to me, but none are satisfying.

First, perhaps the Department of Justice has been so emptied of experienced civil litigators that the few remaining lawyers are too overwhelmed to initiate this procedural step or insufficiently versed in statutory procedures to be aware of it. Reports are that the Federal Programs Branch in DOJ's Civil Division, which ordinarily would handle this class of lawsuits, has lost about 70 percent of its lawyers.

Second, perhaps the Trump DOJ is wary of the Federal Circuit for some reason and wishes to avoid an interlocutory appeal going there, thus being willing to wait for the case to move through to the regional circuit to decide the jurisdictional question. But at the end of the day, this strategy would work only to delay and not to change the path of the litigation. If the government is right in its objection to jurisdiction in the district courts, then the longstanding remedy (even if neither party asks) is to transfer the case to the Court of Federal Claims under 28 U.S.C. § 1631. And since all appeals from the Court of Federal Claims go to the Federal Circuit, then that appellate destiny cannot be avoided.

Third, perhaps the DOJ is less confident in its jurisdictional position than it pretends to be and so is willing to simply drag things out. This last strikes me as the least plausible explanation, since the government has not hesitated to go to the Supreme Court and seek a stay based, in part, on this jurisdictional argument.

Whatever the reason for the government's failure to invoke the jurisdictional resolution statute, I cannot think of what would measure up as a good reason.

As Justice Scalia once wrote, in a dissent endorsing the jurisdictional control of the Court of Federal Claims over past-due money claims, "[n]othing is more wasteful than litigation about where to litigate, particularly when the options are all courts within the same legal system that will apply the same law." For that reason, swifter resolution of such jurisdictional disputes is always preferable.

The federal courts rightly expect the highest in ethical behavior from federal government lawyers. The Department of Justice should be facilitating prompt resolution of the jurisdictional dispute. Section 1292(d)(4) is waiting to make that happen.

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[Paul Cassell] The Statute Allowing Judges to Appoint Interim U.S. Attorneys is Constitutional

[Steve Calabresi's argument that judges cannot make such interim appointments is ultimately unpersuasive, as the Appointments Clause specifically allows Congress to vest such power in the Judiciary. ]

Leading constitutional law scholar and VC co-blogger Steve Calabresi has posted an  interesting analysis of the Attorney General's authority to appoint interim U.S. Attorneys—and of federal judges' authority to step in and make an appointment after the expiration of an interim term. Calabresi argues that the part of the federal statute authorizing judicial appointments (28 U.S.C. § 546(d)) is unconstitutional. I often find Calabresi's analysis of constitutional issues powerful. On this particular issue, however, I disagree. Even proceeding on the originalist and textualist premises Calabresi relies on, his argument is unpersuasive.

Calabresi's argument essentially requires ignoring the text of the Constitution's Appointments Clause, the history and tradition of judicial appointments of interim U.S. Attorneys, and important Supreme Court precedents. Against this backdrop of text, history, and tradition, § 546(d) is constitutional.

In today's post, I focus on this constitutional issue. I hope to follow-up tomorrow with another post on how the statute operates in practice. Calabresi is seemingly correct that, by making repeated interim appointments, a determined Executive can block the ability of judges to make appointments. Thus, even if the statute's judicial appointment authority is constitutional, it may ultimately end up rarely being used.

As the springboard for analyzing the constitutionality of the judicial appointment provision, Calabresi analyzes the recent controversy over Alina Habba's (recently expired)120-day term as Interim U.S. Attorney for the District of New Jersey. Ms. Habba had been acting as the Interim U.S. Attorney while her nomination to become the U.S. Attorney was pending before the Senate. As Ms. Habba's interim term was drawing to a close, the district judges for the District of Jersey entered a terse order declining to extend it. Instead, citing their authority under § 546(d), the judges appointed Ms. Habba's First Assistant (Desiree Leigh Grace) to the interim position. The Trump Administration responded by the President withdrawing Ms. Habba's nomination. And then Attorney General Bondi appointed her to be First Assistant in that U.S. Attorney's Office and also Acting U.S. Attorney for the District for the next 210 days pursuant to the Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345 et seq. Writing on X, Attorney General Bondi explained that "[t]his Department of Justice does not tolerate rogue judges—especially when they threaten the President's core Article II powers." The Attorney General also removed the First Assistant (Ms. Grace) from the interim U.S. Attorney position.

The question of judicial appointments is an important issue, not only  in the U.S. Attorney context but also in other areas. To focus the discussion, like Calabresi, I will discuss the Attorney General's appointment authority under § 546 rather than the Federal Vacancies Reform Act, which is apparently a "fallback" position of the Trump Administration. On § 546, Calabresi defends the Attorney General's position by arguing that the part of the statute that the New Jersey judges relied upon to make their appointment is unconstitutional. Here's the text in question:

If an appointment expires under subsection (c)(2) [i.e., under an interim appointment by the Attorney General], the district court for such district may appoint a United States attorney to serve until the vacancy is filled.

28 U.S.C. § 546(d).

Calabresi concedes that versions of this provision "have been in the U.S Code since the Civil War," but notes "they have rarely been invoked" by judges. Nonetheless, the concession of long-standing historical foundation for judicial appointments should give an originalist pause. Calabresi's main argument is that the judicial appointment provision is now unconstitutional under two recent Supreme Court decisions: Seila Law (2020) and Trump v. Wilcox (2025). Under these decisions, contends Calabresi, the power to prosecute is a core "executive Power" under Article II, Section 1. And, accordingly, under these recent decisions, only the Attorney General (acting on behalf of the President) can appoint Interim U.S. Attorneys. In my view, Calabresi conclusion overreads these recent decisions and incorrectly downplays other, controlling Supreme Court precedents.

It will be useful to set the stage for the issue with some historical background about the prosecution power. Here I draw on my recent article about the Crime Victims' Rights Movement, which explains that in American history the power to prosecute long resided not in the Executive but in private hands. My article observes that, at the time the Constitution was drafted, the dominant mode of state criminal prosecution was private prosecution—that is, prosecution by (for example) victims of crime. When crafting the federal Constitution, the Framers left state criminal proceedings essentially unregulated, meaning that state prosecutions were often initiated by victims rather than government actors.

But in the federal system, it is unclear what the Framer's intended for the prosecution power. So far as can be determined, the Framers never discussed prosecution in connection with federal executive power at the Convention. (See Cassell, supra, at 405). Moreover, most state constitutions at the time of the Framing did not mention, let alone classify, the prosecutorial function. As Professor Stephanie A.J. Dangel has reported, when the Constitution was drafted, five state constitutions included the office of attorney general, but under the judicial articles.

Ultimately, the Framers produced the Constitution with its Appointments Clause, which allows Congress to vest appointment of "inferior Officers" in (among other places) "the Courts of Law":

[The President] … shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose  Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S Const., Art. II, Section 2 (emphasis added). In his post, Calabresi asserts that interim U.S. Attorneys are "inferior Officers." And given their limited remit (holding the Office of U.S. Attorney only temporarily) that seems plausible. So I won't explore the issue here. For further discussion, the interested reader should check out Calabresi's (and Gary Lawson's) strong article on the unconstitutionality of Robert Mueller's special counsel appointment, along with Josh Blackman's and Seth Tillman's extensive analysis of related topics.

Treating interim U.S. Attorneys as inferior officers, Calabresi maintains that it "strains credulity" to read the Appointments Clause as allowing Congress to set procedures for "cross-branch appointments." But nothing in the Appointments Clause's text supports that constricted reading. To the contrary, the phrase broadly allows Congress to vest the power "in the President alone" or, alternatively, "in the Courts of Law"—with the choice being made as Congress may "think proper." And Congress is allowed to make its own, proper choice about where to vest the appointment power for "such" inferior officers—that is, officers who include Executive Branch officers.

Moreover, as the Supreme Court explained in Morrison v. Olson, at the Constitutional Convention, "there was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power." Morrison v. Olson, 487 U.S. 654, 675 (1988). The seven Justices in the the Morrison majority all agreed with this view; the sole dissent, from Justice Scalia, did not challenge it.

Turning next to the office of the U.S. Attorney, in the Judiciary Act of 1789, Congress established a criminal justice system for the small minority of criminal cases handled by the federal system. The Act assigned to the President the power to appoint the Attorney General. In addition, the Act also established a system of federal district attorneys for each of the thirteen judicial districts, with duties including prosecuting in these districts all federal crimes. But while the federal government adopted a public system of prosecution far earlier than many of the state and local governments, nonetheless  private citizens continued to be involved even in the federal process.

Professor Dangel explains that, despite the absence of private prosecution in the federal system, private participation continued to some degree. In the early Federal period, private citizens could apparently directly initiate federal prosecutions on their own. Indeed, in a 1794 letter, Attorney General Bradford expressed the view that

[I]f the party injured is advised or believes that the federal courts are competent to sustain the prosecution, I conceive he ought not to be concluded by my opinion or that of the district attorney. If he desires it, he ought to have access to the grand jury with his witnesses; and if the grand jury will take it upon themselves to present the offense in that court, it will be the duty of the district attorney to reduce the presentment into form, and the point in controversy will thus be put in a train for judicial determination.

In addition, Congress bolstered enforcement of federal criminal statutes with private qui tam actions. Courts effectively treated qui tam actions as criminal proceedings.

To be sure, as a matter of practice, federal criminal prosecutions quickly became synonymous with public prosecutions. But the functional reason a right of private prosecution failed to develop in the federal system stems from the happenstance of the limited kinds of federal crimes at the time. As Professor Dangel has cogently explained, "the Supreme Court refused to recognize federal common law crimes which might have given rise to private prosecution." Moreover, "federal criminal statutes during this period dealt with crimes against the Federal Government qua Federal Government, and thus, public officials prosecuted these public crimes." Thus, Calabresi's initial starting premise—that prosecution is an "exclusively executive power"—rests on shakier foundations than is commonly recognized.

The Judiciary Act of 1789 authorized the President to make the appointment of what we now call U.S. Attorneys, subject to advice and consent by the Senate. But could that appointment power, to some degree, be vested in the Judiciary? This particular cross-branch appointment issue has not been litigated before the Supreme Court. But, in other contexts, the Court has examined cross-branch appointments—generally approving them. In Ex parte Siebold (1879), the Court concluded that Congress could vest in the circuit courts the appointment of supervisors of elections. Siebold noted that an earlier case, In re Hennen (1839), had stated that the issue before it (involving a court clerk) could be traced back to an appointment, which was "intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged." Calabresi cites this statement from Hennen. But Hennen did not provide any analysis of the constitutional issues involved. And, as Siebold later explained, Hennen's observation "was not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed." 100 U.S. at 398.

Seibold also noted that a flat constitutional rule barring cross-department appointments could lead to endless wrangling over which department was the appropriate one. It was "no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged." Id. at 397.

Calabresi acknowledges that Siebold "demoted" Hennen's dicta to a mere statutory observation, while expressing his personal view that "the Supreme Court should re-elevate Hennen to be the lead case on this question." But Calabresi's view implicitly concedes both that Siebold is controlling law today—and that it has been the law in this country for more than 140 years.

Calabresi further concedes that, consistent with Siebold, various forms of authorization for judicial appointment of Interim U.S. Attorneys have existed since the Civil War. See, e.g., Act of March 3, 1863, ch. 93, § 2, 12 Stat. 7687(1863). In 1966, that judicial appointment authority was recodified in 28 U.S.C. § 546:

The district court for a district in which the office of United States attorney is vacant may appoint a United States attorney to serve until the vacancy is filled.

Interestingly, one of the most prominent examples of the exercise of this power was in Utah—and indirectly involved my school (the University of Utah College of Law). In 1974, a vacancy existed for the U.S. Attorney's Office for the District of Utah. The presiding district court judge for the District of Utah (Judge Willis Ritter) had previously been a professor at the University of Utah College of Law. And using his recognized statutory power, Judge Ritter appointed another professor from Utah's College of Law—my former colleague Bill Lockhart—to act as interim U.S. Attorney. (Sadly, Lockhart passed away in 2024.) Lockhart served in the interim position for six months. There, he was responsible for administering President Ford's Clemency Program for Viet Nam draft evaders in Utah. Lockhart granted amnesty to all Utah evaders, supported by a careful memorandum to the Justice Department emphasizing the severe inconsistencies, vagueness and prejudicial delay inherent in prior prosecution policies in those cases.

Judge Ritter's tenure in Utah was marked with controversy. (The tale is well told by Patricia Cowley and Parker Nielson in Thunder Over Zion: The Life and Times of Child Judge Willis W. Ritter (2006).) And Ritter's controversial appointment of Lockhart appears to have served (at least in part) of the basis for Congress to amend the statute governing judicial appointments of interim U.S. Attorneys.

In 1986, in response to a request by the Attorney General that its office be vested with authority to appoint interim United States Attorneys, Congress enacted (former) 28 U.S.C. § 546(d). Under this statute, the Attorney General was authorized to appoint an interim United States Attorney for 120 days and, if the Senate did not confirm a new United States Attorney during that time, the district court was then authorized to appoint an interim United States Attorney to serve until a permanent replacement was confirmed. As a House Report later described things, "By retaining a role for the district court in the selection of an interim United States Attorney, former section 546(d) allowed the Judicial Branch to act as a check on Executive power. In practice, if a vacancy was expected, the Attorney General would typically solicit the opinion of the chief judge of the relevant district regarding possible temporary appointments." See House Rep. 110-58.

It appears that the Reagan Administration did not contest the constitutionality of § 546(d)'s judicial appointment provision. Perhaps the reason is that, if the Administration had litigated the issue directly, it would have lost. In Morrison v. Olson, 487 U.S. 654 (1988), the Court disagreed with the view "that there is an inherent incongruity about a court having the power to appoint prosecutorial officers." Id. at 676 "Indeed," the Court held, "in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well qualified to appoint prosecutors." Id. at 676 n.13. The Supreme Court recounted that "courts may appoint private attorneys to act as prosecutor for judicial contempt judgments"; that courts may appoint United States commissioners with prosecutorial powers; that courts may appoint federal marshals, who are executive officers; that courts may appoint interim United States Attorneys who, inter alia, prosecute criminal cases; and that "Congress itself has vested the power to make these interim appointments in the district courts." See Morrison, 487 U.S. at 676–77 (citing 28 U.S.C. § 546(d)).

Calabresi seems to acknowledge that Morrison specifically validated § 546(d). But he argues that Morrison is "no longer good law as to … its Appointments Clause holding," because the holding was not followed in either Edmond v. United States, 520 U.S. 651 (1997) or Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010)." But neither of those two cases provides real support for Calabresi's position.

In Edmond, the Supreme Court rejected an Appointments Clause challenge to the Secretary of Transportation appointing Coast Guard judges, concluding that a statute authorized the appointment and that the judges were "inferior Officers" within the meaning of the Appointments Clause. The Court specifically cited Morrison as part of its analysis. Apart from the "inferior Officer" issue, the petitioners in the case did not raise any  other Appointments Clause issues—and, accordingly, the Court did not address Congress's authority.

And in Free Enterprise Fund v. PCAOB (2010), the Supreme Court considered whether the Take Care Clause of the Constitution permitted a principal officer to be given "multilevel protection from removal" by the President. Here again, the Appointments Clause was not the main issue—the President's removal power of an already-appointed official was. And while the Court struck down the problematic removal constraints, the Court rejected an Appointments Clause challenge to the SEC's collective appointment of board members. To be sure, the fact pattern presented in the case involved an appointment by the SEC—not courts of law. But the Court even noted that the "Appointments Clause necessarily contemplates collective appointments by the 'Courts of Law,'" Art. II, § 2, cl. 2, without casting any doubt on the practice.

Finally, Calabresi cites two recent Supreme Court decisions that, in his view, render § 546(d) unconstitutional. The first is Seila Law, 591 U.S. 197 (2020), a decision involving a for-cause restriction on the President's power to remove the director of the Consumer Financial Protection Bureau (CFPB). But this a curious citation for an Appointments Clause argument, as the majority does not cite (much less discuss) Congress's power to vest appointment power in courts. Calabresi argues that § 546(d) is "unconstitutional under Seila Law because it allows the exercise of executive power by someone who has not been hired by the President or his Heads of Departments." But Seila Law analyzes the President's removal power over the director of a purportedly independent Executive Branch agency. Thus, it sheds little light on issues surrounding what appointment power that might be extended to the judiciary. Indeed, at several points Seila Law cites Morrison—a decision clearly supporting § 546(d)'s constitutionality. And one key fact in Seila Law was that the CFPB's structure was "almost wholly precedented"—in contrast to judicial appointment power for interim U.S. Attorneys dating back to the Civil War.

The second case Calabresi cites—Trump v. Wilcox (May 22, 2025)—is just a recent "shadow docket" order only four paragraphs long, granting a stay of a D.C. district court order enjoining the President from removing members of two agencies (the NLRB and MSPB). The focus of the Court's short order was (as in Seila Law) a restraint on the President's removal power. Here again, this authority seems of limited relevance, particularly given Supreme Court's more direct statement in Morrison approving Congress placing appointment power in the judiciary.

While the cases that Calabresi cites say little about judicial appointment of prosecutors, the Supreme Court has decided several cases on this issue, decisions allowing judicial appointments. The Morrison case is a clear example, but others exist as well. In the context of contempt proceedings, the Supreme Court has explained that "it is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt." Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987) (emphasis added); see also, e.g., United States v. Donziger, 38 F.4th at 304 (upholding judicial appointment of a special prosecutor). The courts also have appointed private attorneys to defend criminal judgments, even when the Justice Department has declined to do so. For example, in United States v. Dickerson (2000), Chief Justice Rehnquist appointed me to defend the Fourth Circuit's decision limiting the scope of Miranda, even though the Justice Department prosecutors were arguing the contrary position for the Executive Branch.

So, to sum up, for Calabresi's argument that § 546(d)'s judicial appointment provision is unconstitutional to work, the Supreme Court would have to:

read an atextual limit against cross-branch appointments into Article II, section 2, overruling a 140-year-old precedent (Seibold);overrule Morrison v. Olson, which directly and favorably cited section 546(d); andoverrule Young v. U.S. ex rel. Vuitton et Fils S.A., which allowed judicial appointment of special prosecutors.

To me, overturning all these precedents seems unlikely (not to mention potentially unwise). Under existing law, § 546(d) is clearly constitutional.

But let's assume for a moment that Calabresi is correct that § 546(d) is, in fact, unconstitutional. Then what happens? Immediately a severability question would arise, as 546(d)'s judicial appointment sub-section is adjacent, of course, to the earlier sub-sections 546(a), (b), and (c). Subsections 546(a) through (c) authorize the Attorney General to make interim appointments. If the Supreme Court were to strike down § 546(d), it would likely also have to strike down the statute's other related provisions as not severable from each other—potentially depriving the Attorney General of any authority to make interim U.S. Attorney appointments.

To understand the severability issue, it is necessary to lay out the statute's history a bit more. Interestingly, in 2006, the position that Calabresi argues for—complete Justice Department control over interim U.S. Attorneys for an unlimited period of time—was adopted in the PATRIOT Act. See USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, tit. V, Sec. 502, 120 Stat. 246 (2006). But shortly thereafter, controversy arose about how certain U.S. Attorney's had been removed from their offices. And, the next year (2007), Congress responded by enacting legislation—sometimes identified as the "Preserving U.S. Attorney Independence Act"—which went back to pre-existing law. The legislation restored the 120-day limit and judicial appointment provision that remain in the law today.

This congressional action interweaving the various provisions means that, if the Court were to strike down § 546(d), it would likely need to also strike down the statute's other subsections. After finding a part of a statute unconstitutional, under standard severability analysis, the Court "cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole." Murphy v. Nat'l Collegiate Athletic Ass'n, 584 U.S. 453, 481 (2018). Thus, a ruling invalidating the interim judicial appointment provision would seemingly necessitate invalidating the Attorney General's appointment power as well. This result does not appear to achieve the goal of broader Executive power that Calabresi seems to be seeking.

Starting from Calabresi's premise that these restrictions on Executive power are undesirable, a stronger argument is not to question the statute's constitutionality but rather to argue (as Calabresi ultimately does) that the Attorney General remains free to make successive appointments for multiple 120-day terms. In a separate post tomorrow, I plan to turn to these issues surrounding how the statute's judicial appointment provision. The statute, while constitutional, might nonetheless be essentially ineffective.

 

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[Eugene Volokh] N.Y. Appellate Court Rejects Addictive Design Theory in Lawsuit Against Social Media Defendants Over Buffalo Shootings

[UPDATE: A New York lawyer writes that the plaintiffs will be entitled to have the case heard by New York's highest court, if they so wish (as I assume they would): "I wanted to note that this case appears to be an automatic appeal as of right to the NY Court of Appeals due to the two dissenters. CPLR 5601(a). The decision seemed to indicate that the case is fully dismissed, which is the requirement for finality in NY. CPLR 5611."]

An excerpt from Patterson v. Meta Platforms, Inc., decided Friday by a panel of the New York intermediate appellate court, in an opinion by Judge Stephen Lindley joined by Judges John Curran and Nancy Smith:

These consolidated appeals arise from four separate actions commenced in response to the mass shooting on May 14, 2022 at a grocery store in a predominately Black neighborhood in Buffalo. The shooter, a teenager from the Southern Tier of New York, spent months planning the attack and was motivated by the Great Replacement Theory, which posits that white populations in Western countries are being deliberately replaced by non-white immigrants and people of color….

[S]urvivors of the attack and family members of the victims … [sued various parties, including] the so-called "social media defendants," i.e., [the companies responsible for Facebook, Instagram, Snap, Google, YouTube, Discord, Reddit, Twitch, Amazon, and 4chan], all of whom have social media platforms that were used by the shooter at some point before or during the attack…. According to plaintiffs, the social media platforms in question are defectively designed to include content-recommendation algorithms that fed a steady stream of racist and violent content to the shooter, who over time became motivated to kill Black people.

Plaintiffs further allege that the content-recommendation algorithms addicted the shooter to the social media defendants' platforms, resulting in his isolation and radicalization, and that the platforms were designed to stimulate engagement by exploiting the neurological vulnerabilities of users like the shooter and thereby maximize profits…. According to plaintiffs, the addictive features of the social media platforms include "badges," "streaks," "trophies," and "emojis" given to frequent users, thereby fueling engagement. The shooter's addiction to those platforms, the theory goes, ultimately caused him to commit mass murder….

Plaintiffs concede that, despite its abhorrent nature, the racist content consumed by the shooter on the Internet is constitutionally protected speech under the First Amendment, and that the social media defendants cannot be held liable for publishing such content. Plaintiffs further concede that, pursuant to section 230, the social media defendants cannot be held liable merely because the shooter was motivated by racist and violent third-party content published on their platforms. According to plaintiffs, however, the social media defendants are not entitled to protection under section 230 because the complaints seek to hold them liable as product designers, not as publishers of third-party content.

The majority concluded that section 230 immunity protects the defendants against the plaintiffs' claims:

Section 230 provides, in pertinent part, that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." … "By its plain language, [section 230] creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." …

Based on our reading of the complaints, we conclude that plaintiffs seek to hold the social media defendants liable as publishers of third-party content. We further conclude that the content-recommendation algorithms used by some of the social media defendants do not deprive those defendants of their status as publishers of third-party content. It follows that plaintiffs' tort causes of action against the social media defendants are barred by section 230….

If content-recommendation algorithms transform third-party content into first-party content, … then Internet service providers using content-recommendation algorithms (including Facebook, Instagram, YouTube, TikTok, Google, and X) would be subject to liability for every defamatory statement made by third parties on their platforms. That would be contrary to the express purpose of section 230, which was to legislatively overrule Stratton Oakmont, Inc. v Prodigy Servs. Co. (N.Y. trial ct. 1995), where "an Internet service provider was found liable for defamatory statements posted by third parties because it had voluntarily screened and edited some offensive content, and so was considered a 'publisher.'" …

In any event, even if we were to … conclude that the social media defendants engaged in first-party speech by recommending to the shooter racist content posted by third parties, it stands to reason that such speech ("expressive activity" as described by the Third Circuit) is protected by the First Amendment under Moody v. Netchoice Inc. (2024).…

In the broader context, the dissenters accept plaintiffs' assertion that these actions are about the shooter's "addiction" to social media platforms, wholly unrelated to third-party speech or content. We come to a different conclusion. As we read them, the complaints, from beginning to end, explicitly seek to hold the social media defendants liable for the racist and violent content displayed to the shooter on the various social media platforms. Plaintiffs do not allege, and could not plausibly allege, that the shooter would have murdered Black people had he become addicted to anodyne content, such as cooking tutorials or cat videos. {It cannot reasonably be concluded that the allegedly addictive features of the social media platforms (regardless of content) caused the shooter to commit mass murder, especially considering the intervening criminal acts by the shooter, which were … "not foreseeable in the normal course of events" and therefore broke the causal chain.}

Instead, plaintiffs' theory of harm rests on the premise that the platforms of the social media defendants were defectively designed because they failed to filter, prioritize, or label content in a manner that would have prevented the shooter's radicalization. Given that plaintiffs' allegations depend on the content of the material the shooter consumed on the Internet, their tort causes of action against the social media defendants are "inextricably intertwined" with the social media defendants' role as publishers of third-party content…. It was the shooter's addiction to white supremacy content, not to social media in general, that allegedly caused him to become radicalized and violent….

Judges Tracey Bannister and Henry Nowak dissented; an excerpt:

"[W]hy do I always have trouble putting my phone down at night? … It's 2 in the morning … I should be sleeping … I'm a literal addict to my phone[.] I can't stop cons[u]ming." These are the words of a teenager who, on May 14, 2022, drove more than 200 miles to Buffalo to shoot and kill 10 people and injure three more at a grocery store in the heart of a predominantly Black community.

Plaintiffs in these consolidated appeals allege that the shooter did so only after years of exposure to the online platforms of the so-called "social media defendants"—… platforms that, according to plaintiffs, were defectively designed. Plaintiffs allege that defendants intentionally designed their platforms to be addictive, failed to provide basic safeguards for those most susceptible to addiction—minors—and failed to warn the public of the risk of addiction. According to plaintiffs, defendants' platforms did precisely what they were designed to do—they targeted and addicted minor users to maximize their engagement. Plaintiffs allege that the shooter became more isolated and reclusive as a result of his social media use and addiction, and that his addiction, combined with his age and gender, left him particularly susceptible to radicalization and violence—culminating in the tragedy in Buffalo….

[W]e reject the foundation upon which the majority's opinion is built—that plaintiffs' causes of action necessarily seek to hold defendants responsible for radicalizing the shooter given their status "as the publisher[s] or speaker[s] of any information provided by another information content provider," i.e., that plaintiffs only seek to hold defendants liable for the third-party content the shooter viewed. If that were the only allegation raised by plaintiffs, we would agree with the majority. But it is not.

The operative complaints … also allege that defendants' platforms are "products" subject to strict products liability that are addictive—not based upon the third-party content they show but because of the inherent nature of their design. Specifically, plaintiffs allege that defendants' platforms: "prey upon young users' desire for validation and need for social comparison," "lack effective mechanisms … to restrict minors' usage of the product," have "inadequate parental controls" and age verification tools that facilitate unfettered usage of the products, and "intentionally place[ ] obstacles to discourage cessation" of the applications. Plaintiffs allege that the various platforms "send push notifications and messages throughout the night, prompting children to re-engage with the apps when they should be sleeping." They further allege that certain products "autoplay" video without requiring the user to affirmatively click on the next video, while others permit the user to "infinite[ly]" scroll, creating a constant stream of media that is difficult to close or leave.

Plaintiffs assert that defendants had a duty to warn the public at large and, in particular, minor users of their platforms and their parents, of the addictive nature of the platforms. They thus claim that defendants could have utilized reasonable alternate designs, including: eliminating "autoplay" features or creating a "beginning and end to a user's '[f]eed'" to prevent a user from being able to "infinite[ly]" scroll; providing options for users to self-limit time used on a platform; providing effective parental controls; utilizing session time notifications or otherwise removing push notifications that lure the user to re-engage with the application; and "[r]emoving barriers to the deactivation and deletion of accounts." These allegations do not seek to hold defendants liable for any third-party content; rather, they seek to hold defendants liable for failing to provide basic safeguards to reasonably limit the addictive features of their social media platforms, particularly with respect to minor users….

The conduct at issue in this case is far from any editorial or publishing decision; defendants utilize functions, such as machine learning algorithms, to push specific content on specific individuals based upon what is most apt to keep those specific users on the platform. Some receive cooking videos or videos of puppies, while others receive white nationalist vitriol, each group entirely ignorant of the content foisted upon the other. Such conduct does not "maintain the robust nature of Internet communication" or "preserve the vibrant and competitive free market that presently exists for the Internet" contemplated by the protections of immunity but, rather, only serves to further silo, divide and isolate end users by force-feeding them specific, curated content designed to maximize engagement.

The majority concludes, based upon Moody, that even if plaintiffs seek to hold defendants liable for their own first-party content, such conduct is protected by the First Amendment. We disagree…. Government-imposed content moderation laws that specifically prohibit social media companies from exercising their right to engage in content moderation is a far cry from private citizens seeking to hold private actors responsible for their defective products in tort.

Such a vast expansion of First Amendment jurisprudence cannot be overstated. Taken to its furthest extent, the majority essentially concludes that every defendant would be immune from all state law tort claims involving speech or expressive activity. If the majority is correct, there could never be state tort liability for failing to warn of the potential risks associated with a product, for insisting upon a warning would be state-compelled speech in violation of the First Amendment. Nor could there ever be liability for failing to obtain a patient's informed consent in a medical malpractice action—for the defendant physician's explanation of the procedure, its alternatives, and the reasonably foreseeable risks and benefits of each proposed course of action—necessarily implicates the defendant physician's First Amendment rights. That simply cannot be the case.

My sense is that the majority has it right: The plaintiffs' theory can't be just that social media has addictive features that cause harm apart from its content (e.g., because it tempts people away from sleeping). Rather, it's that social media has features that help promote harmful but constitutionally protected speech, whether it's "white nationalist vitriol" or more broadly speech that "silo[s], divide[s] and isolate[s] end users." Moreover, holding a company liable for providing "content designed to maximize engagement" is indeed holding it liable as a publisher of that third-party content, even when the content is "specific" and "curated." But in any event, this struck me as an interesting an important case, both because it's an appellate precedent (albeit from an intermediate state appellate court) and because of the 3-2 split among the judges.

UPDATE: See also this detailed post from Prof. Eric Goldman (Technology & Marketing Law Blog).

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[Keith E. Whittington] The Value of Institutional Neutrality for Free Inquiry

[My new article in the First Amendment Law Review's symposium on campus free speech]

Last fall, the First Amendment Law Review at the University of North Carolina hosted a symposium on campus free speech issues. The issue with articles from the symposium is now out. You can find my contribution here.

The article is called "The Value of Institutional Neutrality for Free Inquiry." There are multiple reasons for universities to adopt a policy of what has become known as "institutional neutrality." This article focuses on the value of such an institutional policy for protecting a climate of free inquiry for individual scholars at the institution.

The article revolves around three core concerns about how a departure from institutional neutrality norms damages free inquiry.

One is mission erosion.

Scholarly institutions that seek to take positions on matters of social and political controversy have altered their core mission and have done so in a way that will do damage to that mission. Rather than being a forum within which scholarly controversies rage, the university will position itself as a judge of those controversies. Rather than playing host to ongoing scholarly disagreements, the university will attempt to authoritatively settle those disagreements. Rather than privileging the process of scholarly disputation, the university will come to privilege a set of particular scholarly findings and conclusions. Rather than elevating expertise to better inform the polity, the university will exalt non-expert opinion in the hopes of influencing the polity. Institutional statements risk subverting the university's commitment to free inquiry into difficult and controversial subjects.

Especially at the level of academic units, empowering departmental faculty to issue institutional political statements breeds a climate of political orthodoxy and transforms scholarly entities into political clubs.

Early in the twentieth century, the German sociologist Max Weber called attention to these dangers when universities were struggling to maintain their autonomy from political forces. The public interest on which the autonomy of the universities rested, he thought, depended on the ability of professors to think freely and speak independently of social and political pressures. "Society as a whole has no interest in guaranteeing the permanent tenure of a professorial corps which has been carefully screened to determine that its political views are unexceptional."

Professors are quick to recognize the truth in Weber's statement when the ideological screening of the professoriate is being done by political officials or trustees. They are slower to admit its truth when the ideological screening is done by the incumbent members of the professoriate itself. But if it would be damaging to the public good for the governor of Florida to screen state university professors for their political conformity, it would be equally bad for the faculty of the law school to impose such a screen themselves—even if the political conformity that such a screen would create would differ depending on who deployed it. Weber contended, "'The freedom of science, scholarship and teaching' in a university certainly does not exist where appointment to a teaching post is made dependent on the possession—or simulation—of a point of view which is 'acceptable in the highest circles' of church and state." Things are not improved if a potential faculty member must simulate the political perspectives of the existing members of the faculty rather than the highest circles of church and state. Faculties should not "function as deputies on behalf of the political police," even if the political police are not the ones currently reigning in the state capitol. It is a disservice to the greater public if scholars must pass through a screen to ensure that their political views are acceptable to those in power.

Finally, leaving the norm of institutional neutrality behind as a vestige of a bygone era can eventually be expected to result in the demand that many traditional practices of universities be altered. If scholarly entities, whether universities, scholarly associations, or scholarly publishers, posture as political actors, then there will be demands that they act like it -- by suppressing dissenting voices and inconvenient truths.

Exclusion of dissenters and suppression of dissent is the most obvious thing to do if an institution is a committed partisan rather than a neutral platform. Universities routinely resist the call to purge the campus of political dissenters on the grounds that the university is the home to many diverse voices. The university does not endorse any of those voices, and none of those voices speaks for the university. A professor who expresses a controversial political opinion speaks for himself alone. Likewise, a controversial speaker who is brought to campus is not endorsed by the university that hosts him. The university has no one message to convey, and thus it tolerates the exhibition of many messages on its campus. It is the marketplace of ideas, not the purveyor of one idea. If the institution instead becomes an advocate rather than a forum, then there is less reason to tolerate counterprogramming to its favored message. It can no longer distinguish its own voice from the voice of those who speak on campus because now it has become the messenger for delivering a particular point of view. A diversity of voices only muddles the message the university has resolved to communicate. If the university as an institution knows the right answer to any particular political or social question, then it can only breed confusion if it allows on campus those who express the wrong answer to those questions. If the university has a dogma, then it need not tolerate heretics.

If universities wish to remain the serious scholarly institutions that they have held themselves out to be since the end of the nineteenth century, then they must refrain from committing themselves, as institutions, to particular right answers on contested and controversial political and social issues.

Read the whole thing here.

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[Eugene Volokh] Religious Exemption Claim by Nonprofit Providing Supervised Illegal Drug Use Can Go Forward

[The Third Circuit held that such organizations may raise religious exemption claims, though it declined to decide (at this stage of the litigation) whether the claim would prevail on the facts of this case.]

From U.S. v. Safehouse, decided Thursday by Third Circuit Judge David Porter, joined by Judges Thomas Hardiman and Michael Fisher:

Safehouse, a Pennsylvania nonprofit corporation, was established in 2018 to address the abuse of opioids in Philadelphia. It seeks to provide overdose prevention services, including supervised illegal drug use. According to Safehouse, what it calls "medically supervised consumption" is salutary because opioid overdoses can be mitigated if trained staff are nearby….

[A]s a provider of supervised illegal drug use, Safehouse would violate 21 U.S.C. § 856(a)(2). Safehouse argues that its Board members' shared religious belief in the value of human life motivates it to provide "evidence-based public-health interventions" and that government intervention with those services substantially burdens its religious exercise.

The District Court rejected Safehouse's argument. It reasoned that non-religious entities are not protected by the Religious Freedom Restoration Act ("RFRA") and the Free Exercise Clause of the First Amendment. As we explain below, that was reversible error….

In 2019, the Department of Justice began this lawsuit against Safehouse and its then-Executive Director seeking a declaration that supervised illegal drug use violates 21 U.S.C. § 856(a)(2)…. Section 856(a) makes it unlawful to "manage or control any place … and knowingly and intentionally … make available for use … the place, for the purpose of unlawfully … using a controlled substance." The District Court read "for the purpose of" as referring only to the purpose of whoever "manage[s] or control[s]" the "place" at issue. A divided Panel of this Court rejected that construction, read the language to refer to the purposes of third parties, and declined Safehouse's related invitation to "harmonize" our reading of the plain text with recent federal efforts to combat the opioid epidemic.

On remand, … [t]he District Court dismissed Safehouse's RFRA and Free Exercise counterclaims because "Safehouse is not a religious entity." That was error because RFRA's plain text and Free Exercise doctrine are clear that those statutory and constitutional protections extend to non-natural persons, including so-called non-religious entities.

In so holding, we express no view about whether threatened prosecution of Safehouse substantially burdens its exercise of religion. We likewise decline Safehouse's invitation to determine in the first instance whether it has plausibly stated RFRA and Free Exercise claims. We only address the proper object of RFRA's and the First Amendment's protections: that object includes a non-natural entity allegedly exercising religion, even if the entity itself is not religious….

The court basically followed Burwell v. Hobby Lobby Stores, Inc. (2014) on this score:

The government in Hobby Lobby conceded that nonprofit corporations are persons under RFRA. And though the Court split 5-4 on whether for-profit corporations are "persons," it was unanimous that nonprofit corporations are. The majority went further. It suggested that even "large, publicly traded corporations" are RFRA persons, though it would be "unlikely" for "corporate giants" to assert such claims in the first place. In such cases, the applicability of RFRA would likely hinge on sincerity….

"RFRA applies to 'a person's' exercise of religion" and Safehouse is a "person" claiming to exercise religion, so it is eligible for RFRA's protections. Just as Safehouse's compassion did not shield it from the plain text of § 856(a)(2), concerns about its proposed services do not withdraw the protections of RFRA….

Safehouse is also protected by the Free Exercise Clause. As Hobby Lobby recognized, "free-exercise claims brought by nonprofit corporations" are nothing new. That provisions of the Bill of Rights apply to corporate entities is "well-established." Against that backdrop, there is no "non-religious entities" carveout from the First Amendment. After all, the purpose of extending rights to corporate persons is to protect the rights of natural persons acting through the corporate form. That purpose is no less true for religious exercise than it is for other rights….

Ilana H. Eisenstein (DLA Piper) argued on behalf of defendants, and Ronda B. Goldfein and Adrian M. Lowe (AIDS Law Project of Pennsylvania), Ben C. Fabens-Lassen (DLA Piper), Peter Goldberger, and Seth F. Kreimer (University of Pennsylvania School of Law) were also on the briefs.

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[Josh Blackman] Today in Supreme Court History: July 28, 1880

7/28/1880: San Francisco prohibits operation of laundries in wooden buildings, "without having first obtained the consent of the board of supervisors." The Supreme Court found this ordinance unconstitutional in Yick Wo v. Hopkins (1886).

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