Eugene Volokh's Blog, page 57

[Paul Cassell] Judge Wilson Denies the Justice Department's Motion to Dismiss a Police Excessive Force Conviction

[Judge Wilson from the Central District of California rejects the Department's breathtakingly sweeping position that "what the Government says is the public interest in this courtroom."]

Last week I blogged about the Justice Department's effort to vacate a police officer's conviction for using excessive force. On behalf of the victim, co-counsel Caree Harper and I objected. And earlier today, the judge agreed with our arguments and denied the motion to dismiss. The found the proposed dismissal would be "contrary to the public interest" because it was designed to interfere with judicial sentencing authority. The ruling is an important step in protecting judicial review of the appropriateness of dismissals proposed by federal prosecutors.

I've previously described the facts of the case, involving a take-down by police of J.H. When she began recording the officer on her phone, he responded by slamming her to the ground and pepper spraying her. You can see for yourself: the relevant events were captured on video. The Justice Department filed a civil rights charge against the officer and, following a jury trial in February, he was convicted. But then the Department moved to reduce the charge down to a misdemeanor and asked the judge (Stephen Wilson, a Reagan appointee) for a sentence of probation. The judge reduced the charge to a misdemeanor, but rejected the Government's proposed probationary sentence as too lenient. The judge instead imposed a sentence of four-months in prison, in light of the officer's clear betrayal of the public trust. The Department then moved to dismiss the entire case, under Fed. R. Crim. P. 48(a). (I have discussed the history of Rule 48(a) at greater length in an earlier post in connection with the Eric Adams case.)

On behalf of the victim, Ms. Harper and I objected to the dismissal motion, urging the judge to reject it. Our argument was the Government was trying to control sentencing:

The Government's purported reasons for the dismissal are after-the-fact, pretextual, and unpersuasive. At bottom, the Government relies only on the fact that it is not inclined to defend the conviction on appeal. But it would be clearly contrary to the manifest public interest for the Court to dismiss this case on such flimsy grounds. Indeed, it appears that the Government's true basis for the dismissal motion is that it objects to the Court's prison sentence. The Court should not allow the Government to subvert a duly imposed sentence for a serious crime.

Today, Judge Wilson agreed with our position, denying the motion to dismiss. The judge concluded that "the record reflects that the Government's newest Rule 48(a) motion is  motivated not by the discovery of new evidence or reconsideration of the case, but by disagreement with the Court's decision to sentence Defendant to four months in prison." The judge also noted that nothing had changed since the Government filed its earlier motion in the case asking for a sentence of probation—except that the court had sentenced the officer to a prison term.

Against this backdrop, Judge Wilson held that the Department's dismissal motion was contrary to the public's interest in protecting judicial sentencing authority:

The motion is a direct attempt to override the Court's decision to sentence Defendant to four months in prison. Indeed, after the Court rejected its request for probation and imposed a custodial sentence, the Government responded by seeking to dismiss all  charges—ensuring Defendant serves no time at all. Put simply, the Government disagrees  with the Court's sentencing decision and is using Rule 48(a) to erase it. It has even  acknowledged that this is its reason for seeking dismissal.

Judge Wilson also rejected the Department's claim that it was entitled to determine by itself whether the court's sentence was fair:

The Government seems to argue that, regardless of its motives, its prosecutorial discretion  alone is enough to justify granting a Rule 48(a) motion under any  circumstances, especially if the Defendant consents. When pressed to reconcile that view with the appellate courts' requirement that Rule 48(a) dismissals not be contrary to the "public interest," the Government argued that the public interest is "what the government says is the public interest in this courtroom." The Government is wrong—at this stage, it does not have unbounded discretion to dismiss cases. The history of Rule 48(a) makes that clear (emphasis added).

Judge Wilson concluded that denial of the motion to dismiss was required to protect separation of powers principles:

In sum, even considering the significant discretion afforded to prosecutors to decide  whether to bring or maintain a case, the Court may deny a Rule 48(a) motion when  dismissal is clearly contrary to the public interest. This is such a case. The record shows  that the Government filed this motion to overturn the Court's four-month prison sentence for Defendant. A post-sentence Rule 48(a) motion aimed at undermining the Judiciary's sentencing authority violates separation of powers principles, and, for that reason, is contrary to the public interest.

This case now moves to the Ninth Circuit, to which the defendant has already appealed. And I have already filed a motion there, asking for Ms. Harper and me to be appointed to defend the judgment below—i.e., to defend the conviction and four-month prison sentence in Judge Wilson's judgment. Such an appointment seems to be the standard practice of courts in considering appeals where the parties are no longer adversarial.

More broadly, Judge Wilson's ruling makes clear that courts possess authority to reject Rule 48(a) dismissal motions from federal prosecutors based on considerations of the public interest. And, contra to the Government's sweeping claim, the "public interest" does not automatically equate with the Government's interest. Judge Wilson's ruling could be persuasive to other judges who are considering similar questions about dismissal motions in other cases, such as my U.S. v. Boeing case where the Department has also filed a dubious motion to dismiss.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] The University Presidents Who Want to Fix Universities Before They Get Fixed

[University Presidents are divided on how to respond to pressure from the Trump Administration. Are their concerns too little, too late?]

For well over a decade I have been of the view that universities need to fix themselves, or they will get fixed--and that getting fixed is likely to be more destructive than restorative. Until recently, I held this view with regard to public universities in red and purple states, but I probably underestimated the extent to which universities had alienated large portions of the public and undermined their own reservoirs of political support--and did not anticipate the focus with which some Trump Administration officials would target universities. To be sure, the Supreme Court's SFFA decision, which effectively declared the de facto admissions policies at most elite universities to be illegal, and the wave of campus anti-Semitism only made universities more vulnerable.

The Atlantic has an interesting article on the growing divide among some university presidents about how to respond to the Trump Administration and current political pressures. On one side are folks like Princeton's Chris Eisgruber, who seem to think there is nothing wrong and that universities can and should ride out the storm. (Those we might call the ostriches of academia.) On the other are those like Daniel Diermeier of Vanderbilt and Andrew Martin of Washington University, who recognize that universities need to reform themselves. The latter camp accept the charge made by folks like Michael Clune that universities have brought much of their current trouble upon themselves.

This is how the article describes the "reformers":

The Reformists believed that higher education had a problem even before Trump was reelected. They watched as conservative speakers were shouted down or disinvited from campuses. They saw professional organizations publicly commit themselves to positions that sounded more like activism than scholarship. (The academics who make up the American Anthropological Association, to cite one example, announced in 2020 that their "research, scholarship, and practice" should be placed "in service of dismantling institutions of colonization and helping to redress histories of oppression and exploitation.") After the Hamas invasion of southern Israel on October 7, 2023, the reformists watched as anti-Israel protesters on other campuses occupied buildings, erected encampments, and, in some cases, engaged in overt anti-Semitism. "You can't look at what happened on many university campuses last academic year and conclude that everything is just fine," Martin told me.

Early last year, Martin and Diermeier began working on a Statement of Principles for higher education. "If research universities are to pursue the truth wherever it lies, they cannot have a political ideology or pursue a particular vision of social change," they wrote. Their university boards adopted the principles as official policy in the fall of 2024, before the presidential election. "Our view was, we have to proactively work on the reform of education, which meant most importantly to be firmly committed to knowledge creation and transmission," Diermeier, who previously served as provost of the University of Chicago, told me.

Note that Martin and Diermeier (like Clune) expressed this view before the Trump Administration took office -- but that the Trump Administration's efforts make reform even more urgent.

The reformers think the resistance presidents are delusional for believing that their problems will go away when Trump does. They see the president's attacks as symptomatic of a larger issue. Polling shows that confidence in American higher education has cratered in recent years, especially among Republicans. "The fundamental fact here is that we have never been in worse shape in my lifetime," Diermeier told me. The reformer presidents, who tend to be in red or purple states, think the resistance leaders are trapped in liberal echo chambers. "It's clear that the bipartisan support has eroded," Martin told me. "It's really misguided to think that what's happening in higher education is a blip and that we're going to return to where we were before."

He and his allies believe that universities should have started cleaning up their act years ago. Now they're playing catch-up, and can't expect to stop just because Trump will someday leave office. . . .

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[Stephen Halbrook] Second Amendment Roundup: The Zero Tax on NFA Firearms

[The $0 tax on firearms undercuts the constitutional basis of the National Firearms Act.]

The National Firearms Act, chapter 53 of the Internal Revenue Code, finds its basis in U.S. Const. Art. I, § 8, under which "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…."  It imposes special occupational taxes for businesses and making and transfer taxes on individual firearm transactions.  It is unlawful for a person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record," 26 U.S.C. § 5861(d), perhaps the most typical violation.

A "firearm" under the NFA includes eight categories, including short-barreled shotguns and rifles (and weapons made from shotguns and rifles under 26" overall length); "any other weapon" (small guns other than handguns); machineguns, silencers, and destructive devices.  § 5845.  Under H.R.1 – One Big Beautiful Bill Act of 2025, as reported by the Senate Finance Committee on June 16, 2025, § 5845 would have been amended to state: "The term 'firearm' means a machinegun or a destructive device."

As a reconciliation bill, H.R. 1 was subject to the Byrd Rule, under which an amendment is extraneous if it does not produce a change in outlays or revenues.  As I argued here, the bill would have complied because it produced a change in revenues by eliminating certain firearms as taxable.  The Senate parliamentarian opined otherwise.  The final version as passed did not change the definition of "firearm" at all, and instead amended the making and transfer taxes on all NFA firearms except machineguns and destructive devices to $0.

Before the amendment, the making and transfer tax was $200 per firearm (or $5 for "any other weapon").  While the tax is now zero on most firearms, one must still register each firearm and obtain ATF's authorization before making and transferring it.  Without any tax being imposed, the rug has been pulled out from the constitutional basis of the NFA.

In Sonzinsky v. U.S. (1937), the Supreme Court held that the NFA contained "no regulations other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose."  And in Haynes v. U.S. (1968), the Court described the National Firearms Act as "an interrelated statutory system for the taxation of certain classes of firearms."  Upholding Obamacare under the tax power in National Federation of Independent Business v. Sebelius (2012), Chief Justice Roberts cited Sonzinsky, writing that "we have upheld such obviously regulatory measures as taxes on … sawed-off shotguns."

Under H.R. 1, no revenue purpose is left for any of the firearms other than machineguns and destructive devices.  Requiring these other firearms to be registered produces zero in taxes, no different than firearms that are not included in the NFA.  The bill becomes effective on January 1, 2026.  Lacking any jurisdictional hook in the tax power or other constitutional delegation, it will be difficult to prosecute offenses for unregistered firearms (other than machineguns and destructive devices) possessed or transferred on and after that date.

Civil challenges have already commenced.  A complaint filed in the Eastern District of Missouri, Chris Brown v. ATF, challenges the pertinent provisions of the NFA not only on the lack of Congressional power under the revenue clause, but also challenges the restrictions on suppressors and short-barreled rifles under the Second Amendment.  Suppressors and short-barreled rifles pass the Heller test by being arms in common use, and NFA-type restrictions do not pass the Bruen text-history test.  Plaintiffs also include the NRA, Firearms Policy Coalition, Second Amendment Foundation, and American Suppressor Association.

Missouri is in the Eighth Circuit, which in U.S. v. Hall (1999) upheld the NFA under the taxing clause, but rejected an argument that the commerce clause would be a constitutional basis for the NFA.

A second challenge, Silencer Shop Foundation v. ATF, has been filed in the Northern District of Texas.  It is based solely on the lack of Congressional power to require firearm registration without any basis in the tax power.  Gun Owners of America and Firearms Regulatory Accountability Coalition are among its plaintiffs.

As long ago as U.S. v. Matthews (1971), the Fifth Circuit relied on Sonzinsky to uphold NFA provisions.  Not surprisingly, all circuits have rendered similar decisions.

I've covered these issues in detail in my article The Power to Tax, The 2nd Amendment, & the Search for Which "'Gangster' Weapons" To Tax.  From its inception in 1934, the NFA has been justified solely under the power to tax.

Based on the plain text of the constitutional power of Congress "to lay and collect Taxes" and the consistent Supreme Court precedents on the NFA, the Department of Justice should agree with the pertinent allegations of the above complaints and enter into consent decrees with the plaintiffs to the effect that the NFA may not be applied to any firearms other than machineguns and destructive devices, which remain subject to the tax.

Recognition that the NFA restrictions may no longer be applied to firearms (other than machineguns and destructive devices) does not leave these firearms unregulated.  All of them are still covered under Title I of the Gun Control Act, which subjects dealer sales to the NICS background check system, bans possession by felons and other categories of prohibited persons, and otherwise comprehensively regulates firearms.

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[Jonathan H. Adler] D.C. Circuit Orders Trump Administration to Restore Public Database of Federal Expenditures

[Judge Henderson writes a forceful opinion rejecting the Trump Administration's attempt to extent executive authority over federal spending.]

The Trump Administration has until Friday to restore a public database tracking the expenditure of appropriated funds. On Saturday, in CREW v. OMB, the U.S. Court of Appeals for the D.C. Circuit rejected the Administration's request for a stay pending appeal of a district court injunction ordering the database's restoration, but said the administration has until August 15 to comply.

Judge Karen Henderson issued a statement respecting the denial of the stay pending appeal, which Judge Wilkins joined. (Judge Garcia apparently joined in the order, but not Judge Henderson's opinion.) The opinion is a powerful rebuke of the Trump Administration's attempt to supplant legislative control over federal spending.

Judge Henderson's statement begins:

Throughout the 1600s, the Stuart monarchs engaged in a titanic struggle with Parliament regarding who would reign supreme over the public purse. That struggle was marked by civil war, regicide and a new wellspring of liberty in the Glorious Revolution of 1688. By the end of the upheaval, Parliament emerged supreme in matters of taxation and spending. Our Constitution followed suit, granting the Congress plenary control over the public fisc. Recently, the Executive has once again locked horns in a struggle for control over the purse strings. Across a slew of cases, recipients of congressional funding have challenged the President's ability to unilaterally freeze or "impound" spending.1 Today's case is but the latest chapter in the ongoing saga.

In 2022, the Congress enacted a statute requiring the Executive to create and maintain a public database to track the expenditure of congressionally appropriated funds. The Executive complied until March of this year when, amidst the burgeoning fight over impoundment, it informed the Congress that it now deemed the statute unconstitutional and would no longer comply with it. Two nonprofit organizations sued to restore the now disabled website and the district court entered a permanent injunction requiring restoration of the withheld data.

The Executive now asks this Court to stay that decision. To hear the Government tell it, the separation of powers hangs in the balance and only this Court can set things right. But when it comes to appropriations, our Constitution has made plain that congressional power is at its zenith. Because the Executive has not made the requisite showing to support its motion for a stay pending appeal, the motion must be denied.

And later in the opinion:

In a Republic, "the people may have an opportunity of judging not only the propriety of . . . appropriations, but of seeing whether their money has actually expended only, in pursuance of the same." St. George Tucker, supra, at 362. Despite their differences, Antifederalists and Federalists agreed that the citizenry had a right to know how the Government manages its money, not a privilege contingent upon the whims of the Executive. Their dispute was only over the wisdom of allowing the legislature to impose reasonable limitations on that right. Congressional power won out. And the Congress, as is its right, has opted to keep the citizenry informed by shedding more light on the appropriations process through the CAAs. The Constitution's text, structure and history uniformly cut against declaring the CAAs unconstitutional. The only question remaining is whether precedent compels a contrary result. It does not. . . .

As the Supreme Court has explained, the "Congress has plenary power to exact any reporting and accounting it considers appropriate." Richardson, 418 U.S. at 178 n.11; see also Harrington v. Bush, 553 F.2d 190, 194–95 (D.C. Cir. 1977) (reasoning that the "Congress has plenary power to give meaning to the" Appropriations Clause). Against that plenary power, the Government asserts that the CAAs risk revealing vaguely defined "sensitive," "deliberative" or "policy" information, thereby chilling OMB's communications. Gov't Br. 19–22. Yet the Government never explains why OMB cannot communicate any privileged information to the relevant agencies outside the apportionment document itself. All it offers is an unhelpful line that doing so would be less "efficient[]." App. 70 ¶ 15. That objection is, as the district court noted, a "policy disagreement with the [CAAs] without a constitutional foundation." CREW, 2025 WL 2025114, at *14.

The current administration is not the first to wince at congressional oversight over spending. "As Alexander Hamilton learned to his dismay, the reporting requirements in the hands of political opponents could be a prodigious mechanism for harassment." Jerry L. Mashaw, Recovering American Administrative Law, 115 Yale L.J. 1256, 1287 (2006). But if the Executive finds disclosure burdensome, it must seek relief from the Congress, not from the unelected judiciary. Our duty is to enforce the law—constitutional and statutory—and, absent an "irreconcilable variance" between the two, we cannot disregard a statute any more than we could the Constitution. The Federalist No. 78, at 467 (A. Hamilton) (C. Rossiter ed., 1961).

For these reasons, the Government has not shown that it is likely to succeed on the merits of its claim that the CAAs are unconstitutional.

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[Jonathan H. Adler] Seventh Circuit Allows Teacher to Pursue Title VII Claim Against School for Requiring Him to Use Chosen First Names of Transgender Students

[This case presents a religious accommodation claim, rather than a free expression claim.]

In 2021, in Meriwether v. Hartop, the U.S. Court of Appeals for the Sixth Circuit held that a university professor could pursue First Amendment free expression and free exercise challenges to Shawnee State University's policy that required professors to use students' desired pronouns. Eugene blogged on the case, and I participated in an Academic Freedom Alliance webinar discussing it.

This past week, the U.S. Court of Appeals for the Seventh Circuit considered some similar claims in Kluge v. Brownsburg Community School Corp. As with Meriwether, Kluge concerned a teacher's challenge to his school's policy as it relates to how teachers should refer to transgender students, but there are also some significant differences.

First, the claim in Kluge is that the school is violating Title VII by failing to accommodate Kluge's religious beliefs. In Meriwether, by contrast, the claims were largely constitutional.

Second, whereas Meriwether involved pronouns, Kluge involves names. The policy at issue requires teachers to refer to students by their chose first names (as opposed to by their last names). Kluge objects to this policy because he believes referring to a student by a first name that conflicts with their biological sex violates his religious commitments. he was initially granted an accommodation under which he could refer to students by their last names, but the school ultimately decided this accommodation was not reasonable and rescinded it.

Third, Kluge arose in a high school, not a university. This is potentially significant both because academic freedom interests are less pronounced in a high-school setting and because accommodations that might be reasonable in a university setting might not be reasonable in a grade school.

As in Meriwhether, the appeals court is allowing the objecting teacher's case to go forward, here for a jury determination as to whether accommodating Kluge would produce an "undue hardship" on the school.

Judge Brennan wrote the majority opinion, joined by Judge St. Eve. Judge Rovner dissented.

Here is how Judge Brennan summarized the issues and the case:

Brownsburg High School instituted a policy mandating teachers call students by their first names as they appeared in its database. For transgender students who had changed their first names, the database listed their new ones.

John Kluge was a teacher at Brownsburg. He repeatedly objected to the school's name policy on religious grounds. Kluge believed that calling transgender students names that conflicted with their biological sex encouraged their transgender identities—a sin, in his view. So, he requested an accommodation, which the school granted. Kluge was allowed to call students by only their last names—"like a sports coach," he said.

After one year, a handful of students and teachers, as well as one student's parents, complained to Brownsburg about Kluge's practice. The school rescinded the accommodation, giving Kluge the chance to either call all students by their first names or face termination. Confronted with this choice, he resigned. Kluge then sued the school under Title VII for failing to accommodate his religion.

An employer is required to accommodate an employee's religious practices unless doing so would impose an "undue hardship" on its business. 42 U.S.C. § 2000e(j). At issue is whether the impacts caused by Brownsburg's accommodation of Kluge rise to the level of an undue hardship under Groff v. DeJoy, 600 U.S. 447 (2023). Because material factual disputes exist, we reverse the district court's grant of summary
judgment to the school on Kluge's accommodation claim and remand for further proceedings.

And from the body of the opinion:

Brownsburg has not carried its burden to show undisputed facts of a serious disruption to the learning environment. Although two performing arts teachers, whose testimony is not in the record, had spoken to the administration about students "having discussions about the uncomfortableness" in other classes, there is no hint that those discussions interfered with students' education or the teachers' duties. These two teachers also claimed that the accommodation caused "tension" that interfered with "the overall functioning of the performing arts department." But Kluge expressly disputed that "tension" existed within the department. He instead said that he "g[o]t along great" with those same performing arts faculty who purportedly complained, and he "did not witness any … animosity" from them.

We must also keep in mind that Kluge is entitled to all reasonable inferences at this stage. McDaniel, 115 F.4th at 822. It is true that three other teachers—whose testimony is also not in the record—similarly complained to Craig Lee that the accommodation was "harming students," both Sucec and Willis, and "students in general who would potentially be in" Kluge's class. Yet there is no evidence that the three non-performing arts teachers complained to the school's administration, only to Lee. One would expect that if there was a serious disruption to the learning environment, those teachers would elevate concerns to the school administration, rather than complain only to a colleague with no authority to reprimand Kluge or control his actions.

In sum, the record contains material factual disputes about whether the accommodation disrupted Brownsburg's learning environment, precluding summary judgment to the school.

Judge Rovner's dissent begins:

Why won't he just say your name? This was the question Aidyn Sucec's music stand
partner posed to him one day in John Kluge's orchestra class. Sucec felt compelled to answer: it was because he was transgender. R. 22-3 ¶ 13.

This exchange epitomizes the problem that confronted Brownsburg. Brownsburg had agreed to let Kluge implement the last-names-only practice as an accommodation to Kluge's professed religious beliefs. From the start, the accommodation as implemented by Kluge was fraught with problems.

Although the last-names-only practice was neutral in the abstract, students quickly figured out that the practice was occasioned by the presence of transgender students in Kluge's classroom. The result was that transgender students felt stigmatized, their allies were frustrated and concerned, other teachers repeatedly fielded questions and concerns about the policy, and parents believed that both their decision-making and their children were not being respected. It is undisputed that complaints from all of these quarters were conveyed to Brownsburg. From the school district's point of view, then, the accommodation was harming transgender students and disrupting the learning environment for them, their fellow students, and for teachers. Given the lack of a dispute as to the concerns that were reported to school and district officials, Brownsburg reasonably concluded that the accommodation was a failure and that allowing it to continue presented the risk of legal liability.

In remanding the case for a trial at which the jury will be invited to reassess de novo the evidence that confronted Brownsburg and to decide for itself how credible the concerns reported to Brownsburg were, the court is setting a perilous precedent for employers. Until today, when confronted with a Title VII employment discrimination claim, we have deferred to an employer's good-faith assessment of how an employee performed in the workplace. Without exception, we have always said that an employer's honest, non-discriminatory assessment of its worker's performance will carry the day, even if it strikes us as wrong-headed. Today the court invites a jury to do what we have always said a federal court will not do, which is to sit as a super-personnel department and second-guess the employer's good-faith reasoning. In
making employment decisions, at least in the religious-accommodation context, employers will now have to consider not only how successfully an employee is performing his job as modified by a religious accommodation, but how a jury
might second-guess its assessment in litigation years down the line. This is an untenable restraint on employers' decisionmaking.

Today's decision also burdens employers in a second important respect. Brownsburg successfully argued below that Kluge's accommodation proved inconsistent with its mission, which is to provide a supportive learning environment for all of its students. Although the majority accepts this mission for present purposes, it also suggests that evidence of an employer's mission must be limited to policies that are formally
documented and adopted prior to any litigation. I think many employers will be surprised to learn that their ability to define their own missions is restricted to formal policies prepared long before an employment dispute arrives in court.

Employers may also be surprised to learn that when an employee's religious accommodation has reportedly caused emotional distress or psychological injuries to one or more coworkers or customers, the employer cannot be confident that its undisputed, good-faith understanding of that harm will be given any deference; rather, it may be left to jurors to judge for themselves whether the injuries are objectively serious enough to be recognized in the Groff analysis. Groff v DeJoy, 600 U.S. 447 (2023).

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[Keith E. Whittington] Justice Sotomayor on Supreme Court Term Limits

[A bit of cold water on a popular Court "reform" from a justice on the left-wing of the Court]

Rick Pildes at Election Law Blog calls attention to a post by Fix the Court that includes audio and some excerpts from an interview Justice Sotomayor did at the University of Zurich last year. Fix the Court -- a leading advocate of radical Court "reform" -- seems to want to spin Sotomayor's comments as good news, but Pildes points out that Sotomayor seems clearly skeptical of how judicial term limits might be implemented.

In particular, she seems to think that term limits could not be applied to the current justices, which she correctly points out would mean that the reformers would not actually get what they most care about which is altering the current composition of the Court.

Her remarks include this provocative claim:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can't be taken away constitutionally — I don't believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you've earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

Perhaps she has been hanging around judges from other countries so much that she has developed some sympathy with the theory of "?" Not sure how many of the current justices would agree with her analysis that judges have a property interest in their seat that would supersede even a constitutional amendment, but I suspect a statutory effort to limit the terms of the justices would get a chilly reception at the Court.

Oh well, there's always Court-packing, which I'm sure will become an exciting topic of conversation again as soon as the Democrats reclaim Congress and the White House. Even if it has gone into dormancy for the moment.

You can find the Presidential Commission's discussion of judicial term limits in its report here.

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[Jonathan H. Adler] Sixth Circuit Rejects Associational Standing in Medicare Drug Pricing Challenge

[An easy way to avoid the merits in the latest high-stake health care litigation.]

The Inflation Reduction Act (IRA) authorized the federal government to force prescription drug manufacturers to "negotiate" drug prices for Medicaid. In a large number of lawsuits, drug makers allege the negotiations are coercive and potentially unconstitutional. Among the claims made in the various suits are that the IRA's rules violate due process, impose unconstitutional conditions, result in regulatory takings or excessive fines, and compel speech, among other things. Most of the cases are in district courts or focusing on preliminary matters, though the U.S. Court of Appeals for the Third Circuit rejected one suit on the merits. [Update: As did the U.S. Court of Appeals for the Second Circuit just this week.]

This past week a panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of one of these cases on standing grounds in Dayton Area Chamber of Commerce v. Kennedy. Specifically, the Court concluded that because the lawsuit was not "germane to the Dayton Chamber's purposes," venue in the Southern District Court of Ohio was improper. Basically, the Court concluded that prescription drug makers, located elsewhere, could not use the Dayton Chamber to file suit in the Southern District of Ohio.

From the opinion:

An association may sue on behalf of its members if "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977). "[T]he doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others." Int'l Union, UAW v. Brock, 477 U.S. 274, 290 (1986). Requiring that an "association plaintiff be organized for a purpose germane to the subject of its member's claim raises an assurance that the association's litigators will themselves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant's natural adversary." United Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 555–56 (1996). As explained by the Second Circuit in Building & Construction Trades Council of Buffalo v. Downtown Development, Inc., 448 F.3d 138, 149 (2d Cir. 2006), the subject matter of the suit must "bear[] a reasonable connection to the association's knowledge and experience." . . .

Whether the interests at stake in this case (which the complaint describes as stopping the government from "depriving Plaintiffs' members of their constitutional rights, making it more difficult for them to operate their businesses, and stifling healthcare innovations that all of us depend on") are germane to the purpose of the Dayton Chamber (which it describes as "improv[ing] the region's business climate and overall standard of living" and "providing networking and training opportunities for its members") is far from obvious. One could argue, in fact, that the overall standard of living in the Dayton area would actually improve with lower drug prices for its citizenry. And at best, any possible relation between Pharmacyclics's and AbbVie's interests in this lawsuit and the Dayton Chamber's purposes exists at only a sky-high
level of generality. This is especially so because Pharmacyclics and AbbVie have no facilities in the Dayton area or indeed in the entire state of Ohio.

The Dayton Chamber itself acknowledges that its primary purpose is to advocate for a business-friendly environment in the Dayton region. And although Plaintiffs collectively argue that they have a broader purpose of safeguarding the principles of free enterprise and advocating for a business-friendly legislative and regulatory environment, the interests that they aim to protect are greatly attenuated from the regional interests of the Dayton Chamber. . . .

The present case is closer to those holding that an association lacked standing to sue. As in those cases, there is little reason to believe that the Dayton Chamber has any particular knowledge or experience in the subject matter of the lawsuit. It instead appears to be more of a "stalking horse" for Pharmacyclics and AbbVie in seeking a perceived favorable venue that Pharmacyclics and AbbVie could not obtain on their own. The district court reached the same conclusion, reasoning as follows:

Pharmacyclics and AbbVie are large pharmaceutical companies that could have
sued on their own in a federal court in a different state. Instead, Plaintiffs have
attempted to manipulate the system and manufacture standing to obtain a
favorable venue. If the Court found the Dayton Area Chamber of Commerce had
standing in this case, it would open the door for any individual or company to
bypass venue rules by becoming a member of any association remotely related to
a challenged law or regulation. The Court will not adopt a loose interpretation of
the standing requirement for the purpose of forum shopping.

We find this reasoning persuasive

This decision is interesting because it adopts a fairly stingy approach to associational standing--a controversial aspect of standing doctrine insofar as it may facilitate cause-based litigation by those without a concrete stake in the underlying issues (as the court suggested was occurring here).

Some, such as Justice Thomas, have raised questions about the scope of associational standing. Others, such as Michael Morley and Andrew Hessick, would argue associational standing should not exist at all. If the justices wanted a case to revisit the doctrine, this might be a case in which to do it--assuming the drug makers seek certiorari.

The post Sixth Circuit Rejects Associational Standing in Medicare Drug Pricing Challenge appeared first on Reason.com.

[Jonathan H. Adler] Seventh Circuit Upholds Indiana Alcohol Laws Without a Majority Opinion

[After one judge died, the two remaining judges could not agree on why the state should prevail.]

This week, in Chicago Wine Co. v. Braun, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court decision rejecting a constitutional challenge to an Indiana law barring out-of-state retailers from shipping wine to customers in Indiana. Yet there is no majority opinion of the court.

The case was initially heard by a panel consisting of Judges Kanne, Eaterbrook, and Scudder. After Judge Kanne's death, Judges Easterbrook and Scudder could not agree on why the state should prevail, so the court issued a per curiam noting that the district court was affirmed, and each judge issued an opinion explaining his reasons why that should be.

Dormant commerce clause doctrine is not known for its clarity (nor, some would say, its consistency). This judgment by the Seventh Circuit would seem to support that opinion.

The post Seventh Circuit Upholds Indiana Alcohol Laws Without a Majority Opinion appeared first on Reason.com.

[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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