Eugene Volokh's Blog, page 62

[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Miami vice, tactical dog bites, and the tantalizing takings clause.]

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

Two weeks ago, we told you about Greers Ferry, Ark. officials putting a Flock surveillance camera directly in front of the home of retired couple Charlie and Angie Wolf. The Wolfs asked the city to take it down and were rudely rebuffed, but after IJ sent the city a letter explaining that the camera was a bit of a problem Constitution-wise, the city did the right thing and removed it. "We're thrilled that the Wolfs will no longer be subjected to constant warrantless surveillance of their property," said IJ Senior Attorney Josh Windham. "That said, there are still massive Fourth Amendment concerns with the use of these license plate reader cameras, and we urge the city not to renew its contract with Flock Safety when the initial term is up."  Click here to learn more.

On the latest Unpublished Opinions podcast, the team run through a lot of legal news, including the fact that AI keeps apologizing to IJ's Josh Windham.

Social worker at public school in Maine gives 13-year-old "a device used to flatten a female's chest so as to appear male." The teen also starts going by another name and using different pronouns at school—neither of which are disclosed.  When mom finds out, she sues the school district for violating her right to direct the upbringing of her child. First Circuit: And we're not going to address that because none of this was a school policy, just employees doing stuff.In 1995, a 12-year-old reports that his mother's husband, a Boston cop, had been sexually abusing him for years. The cop is arrested, and both the police dept. and state child welfare officials investigate—each determining the evidence supports the allegations. And then … the charges are dropped, he's reinstated, and he continues to serve until his retirement in 2018 (including a stint as head of the police union). In 2022, he pleads guilty to sexually abusing six children. Did the City, its police officers and their union, and the state employees exacerbate the danger to the victims in violation of the Fourteenth Amendment right to bodily integrity? First Circuit: Indeed, they might have.UMass resident assistant has a handful of maladroit-but-not-particularly-sexual conversations with fellow RAs and sometimes extends his arms to invite a hug from one RA in particular. Following complaints, the University investigates, finds that he committed sexual misconduct, bars him from living on campus, and places him on "elevated probation" through his graduation. He sues, alleging a violation of his First Amendment rights. First Circuit: Even if his awkward conversations and invitations to hug were unwelcome, there's no evidence they actually disrupted the work or educational environment.Remember NFTs? They were like Pogs, but you could only look at them. Well, there's an online marketplace for them called OpenSea, and it would highlight specific NFTs, which typically caused their price to increase. One employee is responsible for choosing which NFTs to highlight, and he has the clever idea to highlight NFTs that he has already purchased anonymously. He sells them and ends up making $57k. He's found out, fired, and convicted of wire fraud. Second Circuit: Reversed! Because OpenSea doesn't buy or sell NFTs—it earns a commission on their sale—his insider trading didn't deprive OpenSea of any property.Following an egregiously violent attack on a prison official, New York inmate is sentenced to 14 years of solitary. After his term is up, he is kept in solitary on the grounds that he's a danger to the general prison population. He is held there for years, despite apparently good behavior. He challenges his continued detention in solitary as a violation of due process. Second Circuit: And the case should move forward; the cut-and-paste reviews of his continued detention were not meaningful process in light of his good behavior. Dissent: His behavior was probably good because you can't get in very much trouble when you're in solitary.New York town clerk alleges she was great at her job but was fired in retaliation for declining to talk to a judge about an ethics complaint against the judge. (Said judge later permanently resigned to avoid discipline over allegations she was fixing traffic tickets for relatives.) District court: No First Amendment protection for clerk's (non)speech because it was part of her job. Second Circuit: At least as alleged, talking about ethics complaints handled by a different agency is not part of her job. Case undismissed.New York federal indictment alleges Russian woman conspired with oligarch to evade sanctions, including making arrangements in California for his partner to give birth to their child there. She returns to Russia, refuses to return to U.S. after indicted, and moves to dismiss the indictment. Second Circuit: Have you heard of the "fugitive disentitlement doctrine"? Come back if you'd care for us to hear your motion.After mass shooting in Buffalo, N.Y. grocery store, which the shooter livestreamed, the state adopts law requiring social media networks, including even blogs where commenting is allowed, to adopt clear policies about and mechanisms to report hateful conduct. District court: What is required and what is prohibited is clear as mud. PI granted. Second Circuit (over a dissent): Not so fast. We have some questions for the state high court. Dissent: "No blogger can be free of jeopardy for the … reason that the regulation (enforced by ruinous fines) is intolerably opaque. … The uncertainty today is the point. It is the power to suppress that every government craves."In 2016, the Dept. of Labor imposed over $550k in penalties on a family farm in New Jersey for selling workers beer and soda, providing a meal plan where workers could buy pre-cooked meals, having bald tires on a bus, and other alleged violations of federal labor law. Farmers: Hey now. Half a million dollars? DOL ALJ, 2019: Pay up. DOL Agency Review Board, 2021: Pay up. Third Circuit (this week): Reversed. It's unconstitutional for the feds to impose these kinds of penalties in in-house tribunals where agency employees are prosecutor, judge, and jury. If you think the farm did something wrong, prove it in a real court. (This is an IJ case.)Pottstown, Penn. police stop, cuff Black man who had been looking in garage windows in back alley of residential block, per an anonymous tipster. Yikes! The man had just purchased a home there and spent "a few seconds" looking at his new neighbors' garages—on account of  wanting to build one for himself. Third Circuit (unpublished): The tip didn't justify the stop, and it's possible the officer displayed actual malice by getting the man prosecuted for disorderly conduct (purportedly for enduring the stop with insufficient equanimity). In 2018, U.S. Marshals serving on a joint fed-state task force set loose a "tactical canine" into a Riverdale, Md. home at 2 a.m. to subdue man wanted for beating up his girlfriend. The dog instead bites the girlfriend, taking a chunk out of her leg. Might that have been unreasonable? Possibly even unconstitutional? Fourth Circuit (over a dissent): We really can't say. Since these guys are feds, they can't be sued.At the Institute for Justice, we're fans of both institutes and free speech. So naturally we're good buddies with the folks at the Institute for Free Speech (IFS). And this week, we're tickled pink to see that the Fifth Circuit has revived IFS's challenge to a Texas campaign finance provision that would treat their pro bono legal services to candidates and political committees as illegal corporate political contributions. [Ed.: We tried to warn Texas, but to no avail.]Allegation: Following multiple days of 100-plus degree heat inside Colorado City, Tex. prison, nurse sees inmate naked and nonverbal on the floor of his cell with four trays of untouched food beside him. She encourages him "to get up and get on with his day." He dies. Fifth Circuit (unpublished): It is clearly established that baking inmates to death violates the Constitution. And given that hundreds of such deaths have occurred in Texas in recent years, claims against some supervisors, in addition to the nurse, might have been dismissed too hastily. In which the Eighth Circuit continues to express its dislike of private causes of action, this time regarding Section 208 of the Voting Rights Act.Minneapolis SWAT team raids apartment looking for murder suspect. Instead, they find the suspect's cousin asleep on a couch and shoot him dead. Plaintiffs: The cousin never raised his gun—for which he had a proper permit—toward an officer. Cop: The bodycam shows the man pointing the gun. Eighth Circuit: It's not definitive, so our review would be premature. No qualified immunity for now.Noted pillow salesman and election denier Mike Lindell issues a challenge: He'll show you data he claims is from the 2020 election, and if you prove with 100% certainty that it's not, he'll give you $5 mil. Experienced software developer enters the challenge, reviews the data, and issues a 15-page report concluding that the data "unequivocally does not contain packet data of any kind and does not contain any information related to the November 2020 election." Contest judges are, unsurprisingly, not 100% convinced, and the software developer exercises his right to arbitrate. Arbitrators: Give this man his money. Eighth Circuit: We're extremely deferential to arbitration, but we think these arbitrators misinterpreted the contract. Appellate practitioners: That is not the standard!In 2020, Little Rock, Ark. police-brutality protester throws Molotov cocktails at three police cars, causing $86k damage. Eighth Circuit (over a dissent): Which is a federal crime because the different police dept's that owned the cars got 2%, 1%, and 0.7% of their budgets from the feds, respectively, even though federal money was not used to buy the cars.  California passes a law that says providers of continuing medical education must include curriculum about implicit bias in the practice of medicine, unless they're based outside of California in which case they don't have to. California CME Provider: This violates my First Amendment rights. Ninth Circuit: Of course, we all recognize that when we take continuing education classes we're listening to the gov't's speech, not the speech of the private educator, so the First Amendment doesn't apply.Friends, your humble summarist has not read this shoot-em-up between Google and the makers of the videogame Fortnite, and indeed—fun fact—the Ninth Circuit publishes its own summaries of its published opinions. But we want to add some value, and so we relate that 117 lawyers—give or take—were involved in the briefing.After two Miami businessman support his opponent in 2017 election, city commissioner (a former mayor) unleashes a campaign of harassment—sending mobs of police, code enforcement, fire inspectors, and other city employees to shut down the plaintiffs' businesses, harass plaintiffs' commercial tenants, and even shut down an annual holiday party. Plus much more. Jury: Which was unconstitutional retaliation. Pay $63.5 mil. Eleventh Circuit (unpublished): Yup, pay up.The joke around water trough here is that one day soon, law schools are going to have start offering a class called "The Law of Fane Lozman." This week, the two-time Supreme Court winner returns to the Eleventh Circuit (unpublished, per curiam), and we learn that the Swamp Lands Act of 1850 does not mean the feds improperly ordered him to remove a container home and floating docks that he built without a permit on sometimes-submerged land he owns on Lake Worth Lagoon in Palm Beach County, Fla.Friends, the Fifth Amendment says that when the gov't takes property, it must pay just compensation. Eleventh Circuit (over a tantalizing dissent): Right so, when the gov't takes private property, it must pay just compensation. [Ed.: We are honored that the panel reached out to us, among others, to file an amicus brief and chuffed that the majority accepted essentially all our arguments in such a well-written, deeply persuasive opinion. We are also chuffed that we had the foresight to prepare an in-depth podcast episode that we know you'll like on this very issue.

And in other amicus brief news, IJ is urging the Eighth Circuit to do the right thing twice. In 2023, it denied judicial immunity to a judge who took off his robe, stepped down from the bench, and personally jailed two innocent children and threatened to put them in foster care if they didn't go home with their mom. (They wanted to go with their dad.) After a jury verdict in favor of the kids, he's now seeking qualified immunity, notwithstanding the Supreme Court's repeated admonitions that obvious constitutional violations are not shielded.

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[Jonathan H. Adler] Are We Witnessing "Appeasement"? A Reply to Steve Vladeck

[A defense to Steve Vladeck's critique and a brief comment on Adrian Vermeule's related op-ed in the New York Times.]

Professor Steve Vladeck has responded to my Civitas Outlook column and blog post suggesting he has wrongly characterized the Supreme Court's principled formalist jurisprudence for appeasement of the Trump Administration. He claims my criticism of him is "misdirected," my defense of the Court relies on "cherry-picking," and that my defense of the Court is incongruous because one cannot defend the Court for being principled if it does not articulate its principles. He further critiques a New York Times op-ed by Adrian Vermeule which makes some arguments parallel to mine, but which also endorses a more radical response than I have endorsed.

For reasons I will briefly explain below, I stand by my prior assessment in every respect, including the qualifications I have already noted. I also believe much of Vermeule's critique of district courts is well taken. I part company with Vermeule, however, when he suggests that district court overreach and a departmentalist view of the Constitution justify outright defiance of court orders.

Vladeck's first complaint is that my criticism of his accusation that the Court is engaged in "appeasement" worth of comparison to Neville Chamberlain is "misdirected" because he was merely responding to and characterizing claims by others. However Vladeck may have framed his claim elsewhere, I do not think that is a plausible characterization of his remarks at the National Constitution Center which prompted my column. In those remarks, he made clear that the is "no other way to describe what the Court is doing in these cases" in terms that can be summarized as "appeasement" and that "at least some members of the Court may not see themselves as, but are very much acting like, Neville Chamberlain." But don't just take my word for it; roll the tape.

So while Vladeck may now clam he is neither the source nor an adherent of the "appeasement" thesis, he quite expressly embraced it before a live audience at the NCC.

I also do not think it is quite right that the characterization of the Court he attributes to others (in particular Will Baude) is fair or complete. In his reply he says "it was Baude who laid out the idea that some of what the Court is doing in these cases is playing for time" (in an NYT discussion on the Court). I will let Baude speak for himself, but I don't think Vladeck fairly or completely characterizes the argument.

In that discussion, Baude first notes his view that the Court has handled the Trump Administration petitions "about as well as we could realistically expect." He then went on to note two possible ways of characterizing the Court's behavior, only one of which Vladeck repeats. Here's the full quote, with the omitted portion in bold:

If we want to be formalists about it, the government has been pretty savvy about the vehicles it brings to the court and the way it litigates them (as we discussed, re: CASA). And if we want to be more realistic about it, even if you wanted the court to maximally stop the Trump administration, surely it would need to pick and choose its spots carefully. There's just too much lawlessness to do otherwise.

As I read it, Baude is noting there is a formalist defense of the Court's actions (of the sort I set out in my column), but that if one wants to take a legal realist view of the Court, it is hard to expect the Court to be more aggressive than it has been because the Court has to "pick and choose" which cases to hear, which petitions to grant, and so on. Later he notes that one should not expect the Court to intervene forcefully where its jurisdiction is questionable. That's prudence, and shows a proper respect for the limits of the Court's own authority. Nowhere, however, does Baude suggest the Court is "playing for time" or otherwise engaging in what would be fairly called appeasement.

Insofar as there is "cherry picking" going on here, I think it is being done by the Trump Administration. Of the dozens and dozens of adverse court decisions, the Administration has sought relief from the Supreme Court in only a handful, and in some of those cases its requests have been quite narrow (much as it only sought review of the universal injunction question in Trump v. CASA). The Trump Administration has a strong record here because it has not brought its weakest cases before the Court--and that is how it should be. I focused on the two cases I did (AFGE and McMahon) because one was issued the day of the NCC event (8-1, natch), and the other presented nice parallels with issues that arose under prior administrations (when lower courts, particularly the courts of appeals that Vladeck scores me for ignoring, discharged their responsibilities in a more faithful and neutral fashion). I also believe they are largely representative of much of what we have seen over the past several months.

In my view, the lion's share of the orders granting Trump Administration requests for extraordinary relief can be understood as corralling particularly wayward district courts--courts that seem to believe that Trump Administration excesses justify adopting a more elastic conception of the judicial power.  Justice Jackson may adhere to such a view (as suggested by her Trump v. CASA dissent), but I do not and, more importantly, nor do six of the Court's other justices.

I am also not sure Vladeck disagrees. In his reply he writes: "It's not overreach for a district court to be wrong; it's overreach for them to exercise power they don't have." Precisely! It seems, then, that we disagree on how often it is fair to suggest that district courts have acted ultra vires or in excess of their authority, and whether one can view the Court's actions in this light if it has not issued an opinion saying so. I also do not fault the Court for not engaging in a weighing of the equities in cases in which the lower court did not have the jurisdiction to engage in any such weighing in the first place.

I readily confess that there are some cases that do not quite fit this mold, such as Wilcox and Boyle, but I do not think such cases substantiate Vladeck's case. As I've noted before, I think Wilcox was "predictable and reasonable," and the lower courts should have gotten the message in Boyle. I also suspect that some of the justices might question whether it could ever be appropriate to enjoin the removal of an officer. Humphrey's Executor can hardly be said to stand for such a proposition, and loss of a job is rarely treated as an irreparable harm.

I agree with Vladeck that, all else equal, it would be nice for the Court to offer more explanation for is actions. As an academic, I would love the opportunity to examine and interrogate the Court's reasons and rationales. But, as Justice Kavanaugh noted at the Eighth Circuit Judicial Conference, there are trade offs. Writing opinions takes time, and rushing out opinions risks error. Accordingly, not every order will be explained. This is nothing new--and it hardly constitutes "appeasement."

I also disagree with Vladeck that we cannot understand the basis for many of these orders given the content of the briefing and a broader understanding of how courts can and should treat aggressive claims against executive branch action (which was why I spent time discussing episodes from prior administrations).

I am no more scandalized by the Court's failure to offer opinions explaining these orders than I was when the Supreme Court stayed the lower court order that threatened to take mifepristone off the market. When a lower court order is particularly out of line and threatens to be disruptive, the better course is often to act swiftly, even if that means foregoing the issuance of an opinion, particularly where (as occurred in the mifepristone litigation) there may be time later to address the relevant issues more fully. And if, unlike as occurred in the social cost of carbon E.O. litigation, circuit courts do not corral district courts, sometimes the justices will step in.

I could say more, but there are only so many hours in a day, so I will move on. (There's that darn trade-off again.)

As for Professor Vermeule's op-ed, I agree generally with his charge that some district courts have failed to heed the Supreme Court's guidance and respect the limits on their own power, but I would not go so far as to suggest that the Trump Administration has clean hands. I also reject his suggestion that a departmentalist view of the Constitution (with which I largely agree) justifies the executive branch simply disregarding district court orders.

Inferior courts are inferior to the Supreme Court, not the executive branch, and they still exercise the judicial power. It is inevitable that such courts will err in some number of cases, and there are a range of remedies available. Appeals and (if justified) emergency applications should handle the mine run of cases, and more aggressive steps (such as judicial sanction and reassignment or impeachment) can be brought out if individual judges fail to get the message.

Absent truly extreme circumstances (such as armed conflict within our borders) simply disregarding a court order is not a proper response to judicial overreach. So, as Lincoln suggested, executive branch nonaquiescence is an acceptable way to push back against he judiciary, as is refusal to accept the judiciary's legal interpretations. But this doesn't mean defying a discreet court order (e.g. refusing to release an accused individual when acquitted by a court), but may mean refusing to follow the substance of the order in other cases that were not before the court (e.g. bringing new prosecutions).

District courts have repeatedly overreached in cases brought against the Trump Administration over the past six months. These aren't the first cases of consequence in which district courts have erred, and they will not be the last. And they are not a judicial coup or insurrection of the sort than cannot be addressed through traditional institutional means. Indeed, that is part of what the Supreme Court has been doing on the "shadow docket."  Executive overreach is a real concern--perhaps now more than ever--it does not justify the judiciary responding in kind.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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

[Eugene Volokh] Russian Opera Singer Anna Netrebko's National Origin Discrimination Lawsuit Over Firing by N.Y. Metropolitan Opera Can Go Forward

[So a federal judge held Tuesday, reversing its contrary decision from last year.]

From Judge Analisa Torres's decision in Netrebko v. Metropolitan Opera Ass'n, Inc.:

In the [earlier order], the Court found that Netrebko did not allege direct evidence of discriminatory intent…. Netrebko contends, however, that the Court overlooked at least one allegation in the complaint—that the Met replaced Netrebko with exclusively non-Russian artists in the roles for which she had originally been cast….

Among other allegations, [Netrebko] claims that the Met promoted the fact that it replaced her, a Russian, with a Ukrainian artist—and that Gelb even "admitted that [the new performer's] Ukrainian national origin was one reason the Met selected her for the role." Netrebko further alleges that "the Met did not ask artists who were not of Russian origin about their views on Russia's actions or ask them to make statements about the war in Ukraine or denouncing Putin," even though some artists who performed at the Met had "received support from," or even "expressed support for, Putin and/or the Russian government." Together, such allegations support the inference that Netrebko's replacement by non-Russian artists occurred under circumstances giving rise to at least a "minimal" inference of discrimination.

Here's more from the post about last year's decision, which also discusses Netrebko's other claims (as to which the judge didn't change her mind):

[* * *]

From [the Aug. 22, 2024] opinion by Judge Analisa Torres (S.D.N.Y.) in Netrebko v. Metropolitan Opera Ass'n:

After Anna Netrebko, an acclaimed opera singer, refused to repudiate Russian President Vladimir Putin in the wake of Russia's 2022 invasion of Ukraine, the Metropolitan Opera fired her….

Netrebko first alleges that the Met's February 27 Policy, in which it announced it would cut ties with artists and institutions that support or are supported by Putin, is "facially discriminatory" because it "singles out Russian artists." The Met argues that the Policy was "a political statement" and demonstrates that Netrebko's termination "ha[d] nothing to do with Netrebko being Russian" and everything to do with the Met's support for Ukraine and Netrebko's support for Putin….

The February 27 Policy is not facially discriminatory as it does not explicitly implicate a protected class. On its face, non-Russians can run afoul of the Met's policy. Moreover, a policy that targets "a generalized political affiliation, [and] not a specific national origin," cannot form the basis of a claim for national origin discrimination. That there exist Russian expatriates in the United States who support Putin does not compel a finding that the February 27 Policy facially discriminates against them.

Next, Netrebko alleges that the Met's discriminatory motivation is evidenced by (1) the "pretextual nature" of its stated reason for her firing (Netrebko's support of Putin), and (2) the fact that she was replaced by non-Russian performers. The Court disagrees.

First, the truth or falsity of the Met's stated reason for Netrebko's termination is immaterial so long as the Met's decision was based on a belief held in good faith. Netrebko has alleged no facts which plausibly suggest that the Met's stated reason for her termination masked an invidious motive to discriminate against Russians. This argument is, therefore, unavailing.

Netrebko's claim that her replacement by non-Russian performers establishes pretext fares no better…. The [Complaint's] treatment of Netrebko's non-Russian replacements is too cursory to permit a jury to determine whether they were similarly situated. "Plaintiff must 'show that similarly situated employees who went undisciplined engaged in comparable conduct.'" In support of this claim, Netrebko alleges only her replacements' nation of origin. The SAC fails to describe how Netrebko's non-Russian [Ukrainian, Italian, and Norwegian] replacements might be similarly situated as either Putin supporters or holders of a political belief or affiliation the Met finds similarly odious.

At bottom, the Met's firing of Netrebko, "while potentially indicating unfair dislike," does not sufficiently implicate her national origin to permit an inference of discrimination….

But the court concluded that

[Netrebko] has pleaded a claim of gender discrimination based on the "more favorable treatment" received by her male counterparts whom Netrebko alleges also had connections to Putin and the Russian state. For example, she alleges that the male opera singer Ildar Abdrazakov performed at political events, "including at least one event at which Putin … spoke about the war in Ukraine," and that Abdrazakov organized a Kremlin-backed music festival. She further states that male opera singer Evgeny Nikitin was featured at a Victory Day event involving Putin, and that Igor Golovatenko and Alexey Markov have performed at state-sponsored venues since the invasion of Ukraine. Although Netrebko has not alleged comparable conduct on the part of her female, non-Russian replacements, she has alleged conduct that permits comparison on the basis of gender.

{Netrebko does not claim that the male Russian performers had connections to Putin outside of a professional performance setting or made statements hinting at a pro-Putin stance. At summary judgment, Netrebko will be required to produced evidence to establish that the conduct of the male performers is not "too different in kind to be comparable to [Netrebko's] conduct."}

Here, Netrebko's claim of gender discrimination crosses the line from merely possible to plausible. The Second Circuit has held that "[a] defendant is not excused from liability" when discrimination is not the product of "a discriminatory heart, but rather [ ] a desire to avoid practical disadvantages" such as "negative publicity" or public pressure. "[C]lear procedural irregularities," against the backdrop of potential backlash and public scrutiny, may evince an unlawful "policy of bias favoring one sex over the other."

In [two past Second Circuit cases], male plaintiffs accused of sexual misconduct alleged that they were subject to disparate treatment when the defendant universities—facing public pressure over their mishandling of sexual assault and harassment on campus—found them culpable after hasty adjudicative processes plagued by procedural irregularities. The Circuit found that the irregularities in the handling of these matters coupled with other allegations were sufficient to establish a prima facie case of gender discrimination.

Here, the simultaneity of Netrebko's termination, public outcry over Putin's 2022 invasion, and the Met's efforts to show its pro-Ukraine bona fides—taken in conjunction with Netrebko's claim that the Met arbitrarily applied the February 27 Policy—suffice at the pleadings stage to create an inference of discrimination. Since 2017, the Met has collaborated with Moscow's Bolshoi Theatre, a "state-controlled institution," and Gelb [the Met's general manager] was in Moscow for a Bolshoi rehearsal "on the eve of the invasion of Ukraine." Netrebko alleges that the Met's "rapid turnabout on the Russian question"—from being at the Bolshoi one day to firing her a few days later—was part of its "anti-Russia publicity campaign."

Given the prominence of female opera singers compared to their male counterparts, Netrebko claims that "actions against [her], as a well-known 'diva' or 'prima donna' … would garner more international headlines than similar actions taken against male artists and would therefore be more successful in furthering the Met's anti-Russia publicity campaign." {Further supporting Netrebko's gender discrimination claim, an article cited—and incorporated by reference—in the SAC notes that another female Russian performer, Hibla Gerzmava, was fired by the Met after "com[ing] under fire for her ties to Putin," including for "signing a letter in support of Putin in 2014."}

In all, Netrebko plausibly alleges that, faced with "practical disadvantages"—such as the possibility of public pressure and negative press over its connections to the Russian state and individuals aligned with Putin—the Met adopted a "policy of bias favoring one sex over the other." …

Finally, Netrebko alleges that over the course of a year—coinciding with Russia's invasion of Ukraine and her firing by the Met—Gelb, on behalf of the Met, defamed her on multiple occasions…[:]

{In an August 14, 2022 article in the Sunday Times, Gelb stated, "I was always aware [Netrebko] was, you know, a huge Putin supporter … The fact is she put herself in this awful position by being Putin's political acolyte and fan club member over a period of many years, which I had witnessed."In the same Sunday Times article, Gelb stated "When the war is over, Putin has been defeated, he's no longer in office, [and] [Netrebko]'s demonstrating genuine remorse. Maybe that's when we can consider [rehiring her]…. But I would say there's a very small chance of that happening.In a September 12, 2022 Guardian article, Gelb stated that Netrebko "is inextricably associated with Putin… She has ideologically and in action demonstrated that over a period of years."In a November 9, 2022 article in Limelight, Gelb stated, "Netrebko has demonstrated over a period of many years that she was kind of in lockstep politically and ideologically with Putin."In a February 27, 2023 Associated Press article, Gelb stated, referencing Netrebko's termination, "It's a small price to pay…. To be on the side of right was what's important. I wouldn't be able to look at myself in the mirror and have known Putin supporters performing on our stage."In a March 17, 2023 New York Times article, Gelb stated, "Although our contracts are 'pay or play,' we didn't think it was morally right to pay Netrebko anything considering her close association with Putin…. It's an artistic loss for the Met not having her singing here. But there's no way that either the Met or the majority of its audience would tolerate her presence."}

Because Netrebko is a public figure, she must prove that the allegedly defamatory statements were made with actual malice. "Actual malice is a high bar. A plaintiff cannot, for example, allege merely that the speaker was negligent in failing to uncover falsity or that he should have investigated his claims further before speaking." Actual malice exists if a false statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." "A 'reckless disregard' for the truth requires more than a departure from reasonably prudent conduct." The allegations must "permit the conclusion that the defendant in fact entertained serious doubts as to the truth" of the statements. Moreover, the actual malice standard is subjective and must be proven by clear and convincing evidence….

Netrebko has not met this high bar. She alleges that because the Met knew she made multiple statements opposing the war, distancing herself from Putin, and disavowing any connection to him, its subsequent statements referring to her as a Putin supporter must have been made with knowledge of their falsity or with reckless disregard for the truth. Yet, such a finding is not required. There is a difference between the Met knowing that Netrebko uttered these statements and the Met believing that what she said was true.

Netrebko fails to allege any facts demonstrating that her statements disassociating herself from Putin's war against Ukraine altered the Met's subjective belief that she supported the Russian leader. Thus, she has not adequately pleaded that the Met made any of the allegedly defamatory statements with "high degree of awareness of their probable falsity." … Although a court "typically will infer actual malice from objective facts" like "the defendant's own actions or statements, the dubious nature of [its] sources, and the inherent improbability of the story," the [Complaint] offers none that permit the Court to make this inference. At most, the [Complaint] contains "bare assertions of ill will," which are not sufficient to allege actual malice.

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

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

The Stone Court (1942)

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[Paul Cassell] The Defense Challenge to Alina Habba's Appointment is Weak

[A defendant has challenged Acting New Jersey U.S. Attorney Alina Habba's appointment under the Federal Vacancies Reform Act, but he has no real case under the statute's plain language.]

Previously Steve Calabresi and I have blogged about how Alina Habba's appointment as Acting U.S. Attorney for the District of Jersey is valid under the Federal Vacancies Reform Act (FVRA). Calabresi's initial post argued that New Jersey judges lacked constitutional power to displace Habba by appointing an interim replacement. But while I disputed that constitutional conclusion, I ultimately reached the same position as Calabresi under the relevant statutes. I concluded that, under 28 U.S.C. § 546 and the FVRA, Habba was appropriately serving as the Acting U.S. Attorney. In my last post, I explained that the Justice Department had made a powerful defense of Habba's appointment under the FVRA. Earlier today, the defendant challenging Habba's appointment filed a reply brief. But that brief fails to engage on the main issues surrounding the FVRA. It appears that the defendant's position is weak and should be swiftly be rejected.

The timeline is important here. To recap the (essentially undisputed) facts, on March 27, 2025, the Attorney General appointed Ms. Habba interim United States Attorney for the District of New Jersey pursuant § 546. (To make his case seem stronger than it really is, the defendant's brief claims that the Ms. Habba was appointed three days earlier, on March 24—citing a CBS news article. But the Justice Department's brief includes as an exhibit the actual appointment order, which is dated March 27, 2025.) Section 546 explicitly limits such interim appointments to a maximum period of 120 days. 5 U.S.C. § 3346(a)(1). Given an appointment of 120-days, Habba's interim appointment would have expired on on Saturday, July 26.

On June 30, 2025, President Trump formally nominated Ms. Habba for the permanent position of United States Attorney for the District of New Jersey and submitted her nomination to the Senate. On July 24, 2025, before the Senate had acted, the President withdrew Habba's nomination. That same day—July 24, two days before her interim appointment expired—Habba resigned her interim position as United States Attorney. The Attorney General then immediately appointed her as a Special Attorney under 28 U.S.C. § 515, which appointment Ms. Habba accepted. Exercising her authority under 28 U.S.C. §§ 509, 510, 515 and 542, among other provisions, the Attorney General also designated Ms. Habba as the First Assistant in New Jersey, effective upon her resignation as the interim United States Attorney. All of this occurred on Thursday, July 24, two days before the 120-day limit period in § 546(c)(2) expired at 12:00 a.m., Saturday, July 26. As a result of her holding the position of First Assistant U.S. Attorney position in New Jersey, by operation of law, Habba then became the Acting United States Attorney under the FVRA, 5 U.S.C. § 3345(a)(1).

In addition, on Saturday, July 26, a senior Department of Justice official notified the former First Assistant that the President would have removed her from the position of United States Attorney if her judicial appointment to that office had somehow become effective. The notification indicated that, in taking that step, the President was exercising his authority under Article II of the Constitution and 28 U.S.C. § 541(c). The former vests "the executive power in" the President; the latter provides that "each United States Attorney is subject to removal by the President."

Against this backdrop, it seems hard to see the argument that Habba is not currently and validly the U.S. Attorney for the District of New Jersey. The defendant's argument turns on a single phrase in the FVRA, which he does not bother to quote in his brief. Instead, the defendant represents that the FVRA "explicitly prohibits individuals whose nominations have been submitted to the Senate from serving in an acting capacity for the same office, regardless of subsequent withdrawal of the nomination. 5 U.S.C. § 3345(b)(1)." But let's look at the text of the statute that the defendant fails to quote. The statute provides that an otherwise-qualified individual cannot serve as an Acting U.S. under the FVRA if:

(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—

…

(ii) served in the position of first assistant to the office of such officer for less than 90 days; and

(B) the President submits a nomination of such person to the Senate for appointment to such office.

5 U.S.C. § 3345(b)(1)(A)–(B) (emphasis added).

To be sure, Habba had been the first assistant for less than 90 days. So her eligibility to serve devolves to the last phrase highlighted above, related to a Presidential nomination.

At the time Habba became the Acting U.S. Attorney, the President had previously withdrawn her nomination. So the statutory question becomes whether the highlighted phrase above should be read as creating a perpetual disability for a person whose nomination was submitted to the position from becoming Acting U.S. Attorney—i.e., should be read as if it were written "the President has submitted a nomination of such person …."—or read as creating a disability for a person whose nomination is pending at the time—i.e., should be read as if it were written "the President is currently submitting a nomination of such person …."

As between these two alternative readings, the later reading (which affirms Habba's appointment) seems like the obvious one. As I explained in my earlier post, the statute's plain language does not create a disability after the President "has submitted" a nomination in the past. Instead, the statute uses the present tense: a disability exists when the President "submits a nomination." Under standard, recommended principles of legislative drafting, the present tense is used "to express all facts and conditions required to be concurrent with the operation of the legal action," as Bryan Garner explains in his excellent treatise, Garner's Dictionary of Legal Usage 536 (3d edition 2011) (emphasis added). After the President withdrew Habba's nomination—i.e., was no longer submitting her nomination—the condition of her nomination being submitted to the Senate was no longer concurrent with her becoming the Acting U.S. Attorney.

The Justice Department has made the same argument, as I recounted earlier. Here's the Department's argument:

The purpose of subsection (b)(1) is to prevent the President from circumventing the Senate's advice-and-consent function by installing a pending nominee for an office on an acting basis before the Senate can act on the nomination. See NLRB v. SW General, Inc., 580 U.S. 288, 295–96 (2017) (tracing history of provision). Accordingly, "if a first assistant is serving as an acting officer under [subsection (a)(1)], he must cease that service if the President nominates him to fill the vacant [Presidentially-appointed, Senate confirmed] office," or else withdraw from nomination. Id. at 301; see Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 558 (9th Cir. 2016) ("Subsection (b)(1) thus precludes someone from continuing to serve as an acting officer after being nominated to the permanent position, unless he or she had been the first assistant for ninety days of the prior year.").

Subsection (b)(1) therefore presupposes a current nomination to an office that is pending before the Senate. Nothing in the FVRA, however, suggests that the mere fact of a past nomination for an office—withdrawn by the President and never considered or acted upon by the Senate—forever bars an individual from serving in that capacity on an acting basis. The statute precludes a person from serving as an acting officer once "the President submits a nomination of such person to the Senate for appointment to such office," 5 U.S.C. 3345(b)(1)(B) (emphasis added); it does not say that the person is barred from such service if the President ever submitted a nomination in the past, or continues to be barred once a nomination is withdrawn. See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003) (explaining that a statutory provision "expressed in the present tense" requires consideration of status at the time of the regulated action, not before); Nichols v. United States, 578 U.S. 104, 110 (2016) (same). Indeed, a lifetime ban of that sort would have no logical relationship to the distinct separation-of-powers problem that Congress sought to address in subsection (b)(1): Congress's desire to protect its ability to consider and act upon a pending nomination for an office can hardly be served if no nomination is pending.

In my earlier post, I explained my view that the Department's argument was "powerful." So what does the defendant now say in reply to the Department? Nothing. The defendant's entire reply brief is devoted to teasing out the implications of what happens if Habba were to be in her position improperly. Indeed, nowhere in his reply does the defendant even quote the FVRA's "submits a nomination" language, much less explain why the Department's straightforward interpretation is somehow unreasonable.

Against this backdrop, I expect the defendant's argument will be swiftly rejected. Perhaps his motion has had its desired effect, of attracting headlines about how Habba's appointment has been challenged as unconstitutional and diverting attention attention away from whether the defendant is guilty of the drug dealing crime alleged against him. But the bottom line is that the defendant is asking a court to bar his prosecution under a statutory provision he does not even quote, much less plausibly interpret.

The defendant does refer back to the New Jersey's judges' effort to appoint a person besides Habba as the interim U.S. Attorney. But that argument founders on the fact that judicial authority to appoint an interim U.S. Attorney only exists after the expiration of the 120-day term. Indeed, the New Jersey's judge's order provided that it became effective "upon the expiration of 120 days after appointment by the Attorney General of the Interim U.S, Attorney, Alina Habba." As the chronology recounted above makes clear, there was no expiration of the 120 days. Habba resigned two days before. And even if the judges had somehow effected an appointment of a person besides Habba, the relevant statutes make clear that the President (acting through his Attorney General) can remove that person. Title 28 U.S.C. § 541 specifically provides that "[e]ach United States Attorney is subject to removal by the President." 28 U.S.C. § 541(c). Here again, the defendant does not even cite this provision, much less explain why the President is somehow unable to use it to effectuate his choice to be U.S. Attorney.

To be sure, one can debate whether Habba is well qualified to assume the important position of the U.S. Attorney for the District of Jersey. I take no position on the merits of that issue. And one can also find this entire appointment process to be arcane and hyper-technical--even a "loophole." Perhaps so. But the bottom line is that the President (acting through his Attorney General) has put in place (at least temporarily) an Acting U.S. Attorney that he has confidence in to execute his policies. That seems like the sensible outcome.

The post The Defense Challenge to Alina Habba's Appointment is Weak appeared first on Reason.com.

[Josh Blackman] Justice Kavanaugh "Definitely Pay[s] Attention" To the Press

[I am still incredulous that Justice Barrett does not read coverage about herself.]

Justice Kavanaugh spoke at the Eighth Circuit Judicial Conference. He was interviewed by Judge Sarah Pitlyk, who was his former law clerk. (Kavanaugh's clerk tree continues to grow, with President Trump's recent nominations to the Third and Sixth Circuits.)

I have yet to find a video of the event, but there are several press accounts. Politico offers this insight:

Kavanaugh also made clear he closely follows press coverage, podcasts and social media posts about the Supreme Court, what he described as "an ocean of criticism and critiques out there."

"I'm aware of it. I definitely pay attention to it. I think you have to. We're public officials who serve the American people. It's not an academic exercise," said Kavanaugh, who worked as a White House lawyer for President George W. Bush. "It's important for maintaining public confidence in the judiciary and the Supreme Court to know how the opinions are being conveyed and received and understood by the American people."

Oh I bet he does. Indeed, in 2021, the Supreme Court's Public Information Office "clipped approximately 10,000 news articles related to the court and the justices, roughly half of them tweets." The Justices have to go out of their way to not see this content.

I also appreciate that Justice Kavanaugh responded directly to Justice Kagan's missives at the Ninth Circuit Conference about the lack of a written opinion for emergency docket orders.

Kavanaugh . . . said there can be a "danger" in writing those opinions. He said that if the court has to weigh a party's likelihood of success on the merits at an earlier stage in litigation, that's not the same as reviewing their actual success on the merits if the court takes up the case.

"So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that's not going to reflect the final view," Kavanaugh said.

Kavanaugh is right. More and more, it seems that Justice Kavanaugh is speaking out in defense of what the majority is doing--his opinions in Labrador v. Poe and CASA were extremely important. He has become the explainer in chief! Chief Justice Roberts is content in issuing stern end-of-year messages and trying to cheer up Judge Boasberg at Judicial Conference meetings.

By contrast, in 2022, Justice Barrett said she does not read press coverage about herself.

Let's say I have not ever talked to my clerks about whether they read SCOTUS blog. I would be surprised if most of the law clerks in the building did not. I have a policy of not reading. I read news. I'm not an uninformed person, but I have a policy of trying not to read any coverage that addresses me. I mean, I kind of generally want to know about the court. But I do try not to read like whether they're positive or negative, I think it's not a very good idea to read and consume media, that's about me, because, you know, I think there are personal and institutional reasons for that, you know, the institutional reason is that judges have life tenure, so that they can be insulated from fear of public opinion. And so to read criticisms of the court, I think, undermines that. So you know, you shouldn't be playing to anyone in the public or any kind of constituency, you know, being happy if you make one segment of the public happy, or, you know, reluctant to anger another. . .  .

And then on a personal level, you know, it's just not good to have any of that in your head. Certainly not if it's critical and mean. But even if it's high praise, I mean, like, why should you be reading a steady diet? Or my case, it wouldn't really be a steady diet. But why should you be consuming, you know, flattering, you know, articles about yourself, because on a personal level, I mean, the day that I think I am, you know, better than the next person in the grocery store, checkout line, and you know, is a bad day. So, I would say that I really tried to bracket and put aside, you know, anything, you know, to the extent that I can avoid reading, and if it addresses me in particular.

I was incredulous about this statement at the time, and I remain incredulous. Indeed, as Justice Barrett prepares a media blitz for her forthcoming book, I have to imagine she will follow press coverage about herself carefully. Justice Barrett's planned event with Bari Weiss at Lincoln Center seems to have sold out almost immediately.

I am still fond of Justice Scalia's 2013 remarks about his press diet to New York Magazine:

What's your media diet? Where do you get your news?
Well, we get newspapers in the morning.

"We" meaning the justices?
No! Maureen and I.

Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn't handle it anymore.

What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don't think I'm the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.

So no New York Times, either?
No New York Times, no Post.

And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.

Not NPR?
Sometimes NPR. But not usually.

Reading the press is not necessarily a bad thing. As Mike Davis observed "Sometimes feeling the heat helps people see the light."

But the president's supporters were delighted by her criticism of Justice Jackson, with some crowing that their earlier attacks on Justice Barrett had succeeded.

"Sometimes feeling the heat helps people see the light," Mike Davis, a right-wing legal activist with close ties to…

— ???????? Mike Davis ???????? (@mrddmia) July 7, 2025

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[Ilya Somin] Today's Federal Circuit Oral Argument in Our Tariff Case

[Outcomes are hard to predict. But the judges seemed skeptical of the administration's claim that the president has virtually unlimited power to impose tariffs.]

NA

Today, the en banc US Court of Appeals for the Federal Circuit hear oral arguments in VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs brought by the Liberty Justice Center and myself on behalf of five small businesses seriously harmed by the tariffs. You can listen to the argument here. Leading appellate litigator and Georgetown law Prof. Neal Katyal argued for us.

The case is consolidated with a similar one brought by twelve state governments, led by Oregon. We are defending a unanimous ruling in our favor by the US Court of International Trade, which held that the International Emergency Economic Powers Act of 1977 (IEEPA) does not grant the president anything approaching unlimited tariff authority, and if it did it would be an unconstitutional delegation of legislative power to the executive.

It is difficult to predict case outcomes based on oral arguments, particularly one with eleven judges that have a diversity of views and interests. Still, I can make a few tentative observations.

First, there seems little, if any, support for the idea that IEEPA grants the president unlimited tariff authority of the kind the administration claims. Multiple judges expressed skepticism that the law gives him the authority to rewrite the tariff schedule or to claim "unbounded authority." Several judges emphasized, as Judge Reyna noted, that "IEEPA doesn't even mention the word tariffs." From the beginning of this litigation, we have emphasized that IEEPA delegates authority to "regulate" importation, but regulation is distinct from taxation.

Even if IEEPA does allow some tariff authority, as the predecessor court to Federal Circuit ruled in United States v. Yoshida International Inc. (1975), with respect to the Trading with the Enemy Act (predecessor statute for IEEPA), it doesn't follow that authority is unlimited. Yoshida held it was not endorsing unlimited tariff authority. It emphasized that the Nixon tariffs were linked to the preexisting tariff schedule set by Congress, and that "[t]he declaration of a national emergency is not a talisman enabling the President to rewrite the tariff schedules." It even noted that to "sanction the exercise of an unlimited [executive] power" to impose tariffs  "would be to strike a blow to our Constitution." A number of judges noted today that, if Yoshida applies to IEEPA (thereby authorizing some tariffs), so too do its limitations on the scope of permissible tariff authority.

Some judges also suggested that unconstrained tariff authority would run afoul of the major questions doctrine and constitutional constraints on delegation of legislative power to the executive. The CIT based its ruling in part on these considerations.

Even if IEEPA does allow the use of tariffs, the law can only be invoked in the event of an "emergency" that poses an "unusual and extraordinary threat" to the US economy and national security. Those judges who raised this issue seemed skeptical of claims that what qualifies and an "unusual and extraordinary threat" is left to the unreviewable discretion of the president. Otherwise, IEEPA (assuming it allows tariffs at all) would be a blank check for the president, thereby exacerbating major questions and nondelegation problems.

There is nothing unusual or extraordinary about trade deficits, the supposed threat targeted by the Liberation Day tariffs. We have had them for decades, and today's deficits are well in line with historical norms.

A number of judges raised an issue that was given little consideration by the lower court, and in briefing by the parties: even if trade deficits are not an "unusual and extraordinary threat," perhaps some of their supposed consequences do. Those possible effects include damage to US manufacturing, decline of the defense industrial base or the like.

Claims that trade damages US manufacturing and defense industries are - like trade deficits - far from unusual. Protectionists have advanced such arguments for decades. Far from atrophying or "hollowing out," US manufacturing output has actually grown in recent decades, nearly doubling since 1997. While it has declined as a percentage of GDP, that's largely because other industries (such as services) have grown even more. Perhaps we should have still more manufacturing. But there is nothing "unusual and extraordinary" about its current level. Whatever danger trade deficits pose to manufacturing or defense is not an unusual and extraordinary threat, but a normal policy issue that cannot be addressed through a statute limited to emergency situations. Moreover, as the amicus brief by leading economists points out, trade deficits, as such do not cause decline in manufacturing.

Finally, it is worth noting that IEEPA only authorizes measures that "deal with" the emergency and unusual and extraordinary threat that justifies its invocation. Trump's imposition of 10% or higher tariffs on virtually every nation in the world goes far beyond merely targeting imports that might plausibly be said to undermine manufacturing or defense.

In sum, it is hard to predict what exactly the Federal Circuit will do here. But I am tentatively optimistic that the court will at least reject claims that IEEPA gives the president virtually unlimited, unreviewable tariff authority.

The post Today's Federal Circuit Oral Argument in Our Tariff Case appeared first on Reason.com.

[Ilya Somin] My New Dispatch Article on Judicial Review of Emergency Powers

[It makes the case for strong judicial review of executive invocations of sweeping emergency powers.]

NA

Today, The Dispatch published my article "Not Everything is an Emergency" (gift link). Here is an excerpt:

The Trump administration has attempted to make sweeping use of emergency powers in the areas of immigration, trade, and domestic use of the military. In each case, President Donald Trump has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges. If he is allowed to get away with them, these abuses would set dangerous precedents and gravely threaten civil liberties and the structure of our constitutional system.

Each of these efforts has resulted in litigation, and in each case the administration claims the issues in question are left to virtually  unreviewable executive discretion. The president alone supposedly gets to determine whether an emergency exists and (with few or no limitations) what should be done about it. Courts have mostly rejected the argument that the president has the power to define terms such as "invasion." But they have often been overly deferential to presidential determinations about relevant facts, such as whether an "invasion" (correctly defined) has actually occurred. At least one judge has also embraced the view that these issues are unreviewable "political questions." It is vital that courts engage in full, nondeferential review of administration invocations of emergency powers. None of the arguments against doing so outweigh the immense dangers of letting the president invoke these powers at will…..

The Trump administration has attempted to make sweeping use of emergency powers in the areas of immigration, trade, and domestic use of the military. In each case, President Donald Trump has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges. If he is allowed to get away with them, these abuses would set dangerous precedents and gravely threaten civil liberties and the structure of our constitutional system.

Each of these efforts has resulted in litigation, and in each case the administration claims the issues in question are left to virtually  unreviewable executive discretion. The president alone supposedly gets to determine whether an emergency exists and (with few or no limitations) what should be done about it. Courts have mostly rejected the argument that the president has the power to define terms such as "invasion." But they have often been overly deferential to presidential determinations about relevant facts, such as whether an "invasion" (correctly defined) has actually occurred. At least one judge has also embraced the view that these issues are unreviewable "political questions." It is vital that courts engage in full, nondeferential review of administration invocations of emergency powers. None of the arguments against doing so outweigh the immense dangers of letting the president invoke these powers at will….

Nondeferential judicial review of invocations of emergency powers is an application of the judiciary's normal role in interpreting the law and applying it to the relevant facts. Moreover, the use of terms denoting extraordinary dangers (such as "invasion," "rebellion," or "emergency") counsels against interpreting them in ways that allow invocation of these powers in normal times. Otherwise, these words become superfluous, and emergency powers turn into blank checks for executive power grabs.

The same point applies to factual deference. Courts routinely assess whether the factual prerequisites for applying a law are present. Emergency powers should not be an exception. Otherwise, the government could get around constitutional and other constraints on its authority simply by engaging in lying and misrepresentation about the facts on the ground.

In litigation over all three of its major invocations of emergency powers—immigration, tariffs, and domestic use of the military—the administration has also invoked the "political questions" doctrine, which holds that some issues are off limits to the judiciary, because they have been left to the political process…. But there is no general principle holding that invocations of emergency powers are exempt from judicial scrutiny….

Some defenders of the administration's position argue that courts should defer to the executive's specialized expertise on emergency power issues. But a genuine emergency does not require much expertise to detect. You don't have to be an expert to understand that Russia's assault on Ukraine is an "invasion" or that the COVID pandemic was an "emergency." The very enormity of true emergencies generally makes detection easy.

In rare cases where specialized knowledge is required, courts can take expert testimony and consider scientific evidence, as they routinely do in other situations. Courts also have procedures for considering classified information, when necessary….

Elsewhere in the article, I discuss the enormous issues at stake in cases involving dubious invocations of emergency powers:

Advocates of judicial deference claim it is important to give the president discretion to combat  threats. But the enormous risks such deference poses easily outweigh any possible advantage of increased executive flexibility. If illegal migration and drug smuggling qualify as an "invasion," the federal government, under the Constitution, could suspend the writ of habeas corpus whenever it wants, thereby gaining the authority to detain people without due process or filing charges. If properly invoked, the AEA allows detention and deportation even of legal immigrants.

In addition, the weak due process protections mean U.S. citizens may get ensnared in the process, as often happens even with ordinary deportations….

Likewise, normalizing domestic use of the military poses obvious dangers to civil liberties and social order. Routine use of the military for such purposes is a grave menace, and a hallmark of authoritarian regimes.

The stakes with Trump's IEEPA tariffs are also very high. If not struck down, they are expected to impose some $1.9 trillion in tax increases on Americans over the next decade, costing the average household some additional $1,000 per year, while also raising prices and greatly diminishing economic growth. In addition, giving one man total control over tariffs undermines the rule of law and the expectations of stability on which the international economy depends.

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[Jonathan H. Adler] Justice Kavanaugh on the Peril of Writing Shadow Docket Opinions

[Rushing out opinions can lock in erroneous conclusions and create problematic precedent.]

Speaking at the Eighth Circuit Judicial Conference this week, Justice Brett Kavanaugh addressed concerns about the Supreme Court's failure to issue opinions with "shadow docket" orders. While explanatory opinions could be useful, he explained, rushing out opinions could increase the risk of error.

Bloomberg reports:

Kavanaugh . . . said there can be a "danger" in writing those opinions. He said that if the court has to weigh a party's likelihood of success on the merits at an earlier stage in litigation, that's not the same as reviewing their actual success on the merits if the court takes up the case.

"So there could be a risk in writing the opinion, of lock-in effect, of making a snap judgment and putting it in writing, in a written opinion that's not going to reflect the final view," Kavanaugh said.

Kavanaugh said members of the court have differing thoughts on when to issue opinions for those cases on the so-called shadow docket, or when parties petition the justices for emergency relief on rulings made by lower courts. He said those cases will "get back to us soon enough."

Adam Liptak of the New York Times reports further:

Justice Kavanaugh said presidents of both parties were to blame. "Executive branches of both parties over the last 20 years have been increasingly trying to issue executive orders and regulations that achieve the policy objectives of the president in power," he said. Those actions give rise to challenges that can race to the Supreme Court. . . .

Emergency applications present the court with difficult issues, Justice Kavanaugh said.

"What is the status of the new regulation or executive order for the next two years?" he asked. "That itself is a very important question, and that's the question we often have to decide: Will the new regulation be in effect or not be in effect in the next two years?" . . .

In opening remarks, without referring to Mr. Trump's attacks on the federal judiciary, Justice Kavanaugh thanked the assembled judges for their service and urged them "to preserve what I think is the crown jewel of our constitutional democracy, which is the independence of the judiciary."

As Liptak also reports, Justice Elena Kagan made the case for explaining such orders at the Ninth Circuit's judicial conference last week.

In a similar appearance last week at the Ninth Circuit's judicial conference, Justice Elena Kagan, who has often dissented from the court's emergency rulings in favor of President Trump, made the opposite case, saying the majority should do more to explain its reasoning.

"I think as we have done more and more on this emergency docket, there becomes a real responsibility that I think we didn't recognize when we first started down this road, to explain things better," Justice Kagan said. "I think that we should hold ourselves, sort of on both sides, to a standard of explaining why we're doing what we're doing."

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