The Volokh Conspiracy

Fewer than twenty-four hours after the U.S. Court of Appeals for the D.C. Circuit granted the Trump Administrations request for a stay in Dellinger v. Bessent, Special Counsel Hampton Dellinger has dropped his suit challenging President Trump's removal of him from his office. But this is hardly the end of lawsuits seeking to clarify the scope of the President's removal power. Indeed, as Dellinger disappears, a clear challenge to Humphrey's Executor is coming into focus.

Earlier today, Judge Beryl Howell ruled against the Trump Administration in Wilcox v. Trump, holding that the President cannot remove Gwynne Wilcox from her position as Chair of the National Labor Relations Board without cause. Relying squarely on Humphrey's Executor, Judge Howell concluded that the removal limitations contained in the National Labor Relations Act are constitutional and that she must be reinstated. An appeal is sure to follow.

Swapping Dellinger for Wilcox paints a clearer target on the Humphrey's Executor precedent. In Dellinger, the Supreme Court could have ruled for or against the president without directly challenging Humphrey's. The Court could have sustained the removal on the grounds that the OSC, like the CFPB, is a single-headed agency within the executive branch. Alternatively it could have ruled against Trump on the grounds that the Special Counsel is an inferior officer under cases such as Morrison v. Olson and United States v. Perkins.

Unlike Dellinger, Wilcox places the focus directly on Humphrey's Executor. This is because it is difficult to distinguish the NLRB from the Federal Trade Commission. Both are multi-member agencies with the authority to promulgate regulations and adjudicate. While there is an argument that neither is much like the circa-1935 FTC the Court considered in Humphrey's, it is hard to see how the Court could sustain removal of Wilcox without implicating other purportedly independent regulatory agencies, and this would take Humphrey's along with it unelss the Court were to try and limit that case to its facts.

From ACLU's Mar. 4 Open Letter to U.S. College and University Presidents:

This letter is prompted by two Executive Orders—Executive Order 14161, titled "Protecting the United States from Foreign Terrorists and other National Security and Public Safety Threats," signed on January 20, 2025, and Executive Order 14188, titled "Additional Measures to Combat Anti-Semitism," signed on January 29, 2025²—and related communications from the White House.

Executive Order 14161 states that it is the United States' policy to "protect its citizens" from noncitizens who "espouse hateful ideology," and to ensure that noncitizens "do not bear hostile attitudes toward [America's] citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security." The Order directs the Secretary of State to "[r]ecommend any actions necessary to protect the American people from" noncitizens who, among other things, "preach or call for … the overthrow or replacement of the culture on which our constitutional Republic stands."

Executive Order 14188 requests from the Attorney General "an inventory and analysis of all court cases … involving institutions of higher education alleging civil-rights violations related to or arising from post-October 7, 2023 campus anti-Semitism" and directs the Secretaries of State, Education, and Homeland Security to recommend ways to "familiariz[e] institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities" by noncitizen students and staff and ensure that such reports lead "to investigations and, if warranted, actions to remove such aliens." In a fact sheet explaining Executive Order 14188, the White House described the Order as "forceful and unprecedented," made clear its purpose of targeting "leftist, anti-American colleges and universities," and described it as a "promise" to "quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before." …

In combination, these orders, the accompanying fact sheet, and other communications from the Trump Administration are intended to enlist university officials in censoring and punishing non-citizen scholars and students for their speech and scholarship. As you well know, this would intrude on academic freedom and equal access to education….

The Stanford Encyclopedia of Philosophy has published an updated and expanded version of its entry on "The Ethics and Rationality of Voting." It is authored by Georgetown Prof. Jason Brennan, a leading expert on democratic theory. Here is his summary of the issues covered:

This entry focuses on six major questions concerning the rationality and morality of voting:

Is it rational for an individual citizen to vote?

Is there a moral duty to vote?

Are there moral obligations regarding how citizens vote?

Is it justifiable for governments to compel citizens to vote?

Is it permissible to buy, trade, and sell votes?

Who ought to have the right to vote, and should every citizen have an equal vote?

The article is a great summary of debates over these issues, and review of relevant literature. To me, it is striking how much of the debate over all six issues turns at least in part on the problem of voter ignorance. For example, whether and to what extent people have a duty to vote depends in significant part on whether they can do so in an informed manner. Similarly, many current and proposed limitations on voting rights are justified by political knowledge considerations (e.g. - this is the standard rationale for barring children, and for requiring immigrants to pass a test of political knowledge to become citizens - one most native-born citizens would fail if they had to take it without studying.

I have long argued that voter ignorance is a major challenge for democracy and democratic theory, and recent events indicate the problem is even more severe than I previously thought. There is no easy and quick solution. But I I assess a range of possible options in a recent book chapter on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," and in my book Democracy and Political Ignorance.

From the motion for a TRO and preliminary injunction in Texas A&M Queer Empowerment Council v. Mahomes, just filed yesterday by the Foundation for Individual Rights and Expression (JT Morris, Adam Steinbaugh & Jeffrey Zeman):

For years, Plaintiff Queer Empowerment Council has exercised its unquestionable First Amendment right to organize, fund, and host an annual drag show, Draggieland, in venues open for student performances at Texas A&M University–College Station. The recognized student group has been preparing to host Draggieland again at the Rudder Theatre on Texas A&M's campus on the evening of March 27, 2025. Campus staff readily approved the group's reservation months ago.

But on February 28, the Texas A&M System Board of Regents took aim at Draggieland, passing a resolution banning drag shows from campus venues ("Drag Ban"). The Regents left no doubt about their motives, insisting that drag performance "promote[s] gender ideology" and "demeans women." …

Texas A&M University opens performance and event venues in its Rudder Theatre Complex for use by recognized student organizations. These include the Rudder Theatre, one of the venues inside the Rudder Theatre Complex. These venues supplement the classrooms on campus, providing students with spaces to present their own artistic, cultural, and political events—where students can "gain exposure to diverse political thoughts and viewpoints different from their own." Tracking its "Expressive Activity on Campus" policy, the University provides content-neutral regulations for using the Rudder Theatre, And it places no limit on content or subject matter. In fact, the University holds Rudder Theatre out as suitable for "events such as Broadway productions, concerts, variety shows, movies, lectures, conferences, commencement ceremonies, and recitals."

Past and upcoming events in the Rudder Theatre Complex venues include performances of the Broadway musicals Chicago and Hadestown, each employing "mature themes," and The Cher Show, featuring women in risqué costumes. Students also use the Rudder Theatre to hold an annual "Miss Black & Gold" women's pageant. Students and community members seeking entertainment can attend concerts (whether by a jazz ensemble, South Korean pop group, or Brazilian pianist), musical theatre (including student productions of Swan Lake and Oklahoma!), or comedy shows. And student organizations use it to host religious and political meetings, like an appearance by commentator Ben Shapiro, who denounced "transgressivism" by the LGBTQ+ community during his speech.

I think FIRE is generally quite right here. Once the university has broadly owned the theater for student expression, it can't then exclude presentations—whether drag performances or Ben Shapiro speeches—because of their viewpoint. And I agree that banning drag because it "promote[s] gender ideology" and supposedly "demeans women" is a viewpoint-based exclusion. (Theatrical performances have long been recognized as a form of expression that's as protected by the First Amendment as is a speech.)

We often think of the Supreme Court as the apex institution. The Constitution called for the creation of the Supreme Court, but inferior courts were left to Congress's discretion. From early on in the Republic, it was understood that the Supreme Court, and not the lower courts, would have the final say on matters of national importance. Justice Jackson remarked "We are not final because we are infallible, but we are infallible only because we are final."

Yet, in recent weeks, there has been a change: District Court judges are in charge. In case after case, federal district court judges have issued a series of non-appealable orders, whether styled as "administrative stays" or temporary restraining orders. Courts of appeals have then declined to disturb those rulings, finding that TROs can only be challenged through mandamus, and administrative stays are unappealable altogether. At that point, the federal government is forced to run to the Supreme Court seeking emergency relief. And what has the Supreme Court done? They have kicked the issue back down to the lower court, hoping that someone else makes the tough decisions. Who is running the show here?

Jack Goldsmith calls these tactics "temporizing." That is, the Supreme Court is simply trying to bide its time to find other ways of resolving the issues. That may be right in the short run, but I think we are witnessing an inversion of Article III. The Supreme Court is no longer Supreme. Rather, the federal government is now subject to inferior court supremacy. Lower court judges are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.

At this point, Chief Justice Roberts and Justice Barrett are engaging in alternative dispute resolution. They are crafting these compromises to settle conflicts between the executive branch and the lower courts. They are avoiding important and foundational constitutional questions. Perhaps these delays can be chalked up to avoiding a "merits peek" on the emergency docket, but these are urgent constitutional issues that will not benefit from percolation. The Chief and Justice Barrett have been reduced to mere mediators. They are so focused on avoiding "red" or "blue" rulings and making them "purple," that they are not actually deciding the cases before them. Indeed, I am now more convinced the USAID case was an advisory opinion.

When I write that Justices should resign, I am not being a polemicist. I think they have lost their way as judges: decide the cases and let the political chips fall where they may.

3/6/1857: Dred Scott v. Sandford decided.

In recent terms, several Justices have attempted to sketch standards for granting relief on the shadow docket. In Does v. Mills (2021), Justice Barrett and Kavanaugh focused on cert-worthiness as an important factor. But in Labrador v. Poe (2024), Justices Kavanaugh and Barrett focused on likelihood of success on the merits. These two tests are very much in tension. Department of States v. AIDS Vaccine Advocacy Coalition illustrates this tension.

In this dispute, the Trump Administration attempted to block the payment of certain foreign development assistance funds. The procedural posture of the case is complex. A federal district court issued a Temporary Restraining Order, which was in effect a mandatory injunction: the State Department had to pay out approximately $2 billion. On February 25, the district court ordered the government to pay funds for work that was already completed by February 26 at 11:59 p.m. Shortly before that deadline, Circuit Justice Roberts entered an administrative stay of the February 25 order. Roberts then referred the government's application to the full Court.

The application sat pending for seven days. On March 5, the Court vacated the Chief Justice's administrative stay. In other words, the Court denied the government's request for an administrative stay. The vote was 5-4. Chief Justice Roberts, and Justices Sotomayor, Kagan, Barrett and Jackson, were in the majority. Justice Alito dissented, joined by Justices Thomas, Gorsuch and Kavanaugh.

The Court offered only one sentence of reasoning to explain its actions:

Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.

This order took me some time to sort through.

First, as a general matter, if the Court vacates an administrative stay, the lower court order goes into effect immediately. The District Court order required the payment of these funds by February 26. That order went into effect as soon as the stay was vacated. The Court says that the "the deadline in the challenged order has now passed." That might be true, but it is irrelevant. If a court orders you to do something on Monday, and it is now Wednesday, it is true that the deadline has passed, but it also means that you are now in violation of a court order and can be held in contempt. An order doesn't cease to be in effect when the deadline passes. The order remains in effect unless an appellate court says otherwise. And the Supreme Court ultimately let the order go into effect. Sort of. The Court's one sentence of reasoning makes little sense.

Second, if the February 25 order is now in effect, why does the government not have to make the payments immediately? Because the Court said "the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order . . . ." In other words, the Supreme Court gave the District Court an assignment: the lower court should issue some sort of clarifying order about what funds are due. This order, if I can even call it an order, is perplexing. The Court denied the government's application. How can the Court grant any relief if it denied the government's application? The Supreme Court lacks any sort of free-floating, supervisory power over the lower courts. If it grants an application, under the All Writs Act, the Court can give instructions of how the lower court should proceed. But by denying the application, the Court has no power to act. This order is in keeping with Justice Barrett's opinion in San Francisco v. EPA, where she purported to dissent in part, but in fact dissented outright. The Court is engaging in shenanigans with how it describes its appellate jurisdiction.

Third, given that the Court denied the application, any discussion of the merits would be an advisory opinion. Yet the Court strongly hints that the lower court was wrong on the merits. "Clarifying" the obligations of the government is a nice way of saying the prior ruling was not quite clear enough. If the order against the government was insufficiently clear, the remedy would be to vacate the lower court opinion with instructions to clarify. (Then again, the Supreme Court "clarified" Bruen in Rahimi by partially overruling it, so words really have no meaning on the Roberts Court.) But the Supreme Court asked the District Court to clarify its ruling, without ordering it to do so. The Supreme Court cannot make suggestions. It can only issue orders. Again, these are shenanigans, designed to direct the lower court without actually granting the government's application.

I struggle with this ruling because there is no attempt, whatsoever, at a neutral principle. At this point, Chief Justice Roberts and Justice Barrett are just bailing out a sinking ship, trying to stay afloat long enough to avoid the next iceberg.

Justice Alito's dissent is one for the ages. When the current emergency docket madness is over--and it will come to an end sooner or later--we will look at Justice Alito's opinion as a turning point.

Justice Alito carefully walks through the standards for granting a stay--and those standards are amply satisfied.

First, there are very strong arguments that the Government will prevail on sovereign immunity grounds. Plaintiffs cannot simply sue the United States in federal court to seek payment of a contract. The Court of Federal Claims has specialized jurisdiction for these sorts of claims. Moreover, the District Court's order was palpably over-broad. The majority acknowledged that the lower court's edict should be "clarified." Again, an order that is valid does not need to be "clarified." All of the Justices, therefore, agreed that the District Court issued a ruling that likely would not be upheld on the merits. The "likelihood of success" prong is satisfied. So we do get a merits peek, even if the majority is playing peek-a-boo.

Second, the government has squarely shown that is likely to suffer irreparable harm. If the plaintiffs ultimately prevail, the government can always pay out the amounts owed, perhaps with interest. But once the government pays out the $2 billion, recovering that full amount will be nearly impossible. The equities here scream for a temporary stay.

Third, in a footnote, Justice Alito discussed Justice Barrett's Does v. Mills concurrence:

To the extent that likelihood of certiorari is a relevant factor, John Does 1–3 v. Mills, 595 U. S ___, ___ (2021) (BARRETT, J., concurring in the denial of application for injunctive relief) (slip op., at 1), it is met here.

Do you know why this standard is met? Because four justices would grant that stay. It takes four votes to grant cert. By definition, this case is cert-worthy. In Does v. Mills, there were three votes to grant the injunction. Justice Barrett could say the case was not cert-worthy because she did not vote to grant cert. But it was not hard to predict a 5-4 case on the emergency docket. Barrett's standard was always circular. In the USAID Case, where there are four votes to review, the problems with Barrett's standard becomes apparent.

From my perspective, the Court denied the stay only because Justice Barrett was willing to go along with the Chief Justice. Justice Barrett has signaled her discomfort with administrative stays before. But, she has not articulated any reason why relief was not appropriate here. Thus, there is an asymmetry. District Courts are issuing administrative stays of executive actions, appellate courts refuse to grant administrative stays of lower court rulings, and the Supreme Court simply sits on the sidelines.

The lower court, which are issuing unappealing rulings, are inverting the Article III hierarchy. This Inferior Court Supremacy, as I call it, cannot stand. More on that topic in another post.

The U.S. Court of Appeals for the District of Columbia Circuit has granted the Trump Administration's emergency motion for a stay pending appeal in Dellinger v. Bessent, the case challenging President Trump's removal of Hampton Dellinger as the Special Counsel of the Office of Special Counsel. As the order notes:

This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel. Appellants have satisfied the stringent requirements for a stay pending appeal.

Earlier this month, a district court held that Dellinger's removal was unlawful, and the statutory provisions limiting removal were constitutional. I discussed that ruling here. This order suggests the D.C. Circuit may be skeptical of the lower court's conclusions (or perhaps just that the D.C. Circuit believes the justices will be).

The D.C. Circuit order was unanimous. The judges participating were Henderson, Millett, and Walker. The panel also ordered the case expedited, with briefing to conclude by April 11 and oral argument to be held "on the first appropriate date following the completion of briefing."

Over at the Divided Argument substack, Nicholas Bagley and Samuel Bray have a post, "Sovereign Immunity, Equity, and the USAID Temporary Restraining Order," exploring some of the procedural and doctrinal wrinkles that divided the justices in this morning's order in Department of State v. AIDS Vaccine Advocacy Coalition (which I discussed here). It is very worth the read.

Their first observation highlights why it is perilous to make sweeping conclusions about today's order and what it signifies about the court, the justices, or how pending and prospective litigation involving the Trump Administration will unfold.

The Chief Justice's administrative stay and the Court's denial of the application had the salutary effect of avoiding the Court being forced to decide—or to tip its hand about a decision regarding—some major legal questions. It would not be good, for example, for the Court to determine the interplay between sovereign immunity, equity, and the disbursement of federal funds on an application for a stay of an order enforcing a temporary restraining order. That emergency posture is not conducive to deliberate decisionmaking.

This does not mean that the dissenting justices did not have a point. To the contrary, Bagley and Bray note that many of Justice Alito's points are well taken, or at the very least raise significant concerns. Part of the problem is that it is not clear how courts should handle some of these questions in the context of requests for emergency relief. As they conclude the post: "The difficulty of these questions confirms the wisdom of not trying to resolve them on an emergency stay of an order enforcing a temporary restraining order."

A few other points from Bagley and Bray I thought worth highlighting:

One issue at the heart of these various requests for emergency orders is what their purpose is. Is it primarily to preserve the efficacy of the court's ultimate remedial options, or is to accelerate the decision of the case? That matters for how central the merits should be in the analysis at each stage of the case.

And:

The jurisdictional fight at the heart of the case—is this a routine APA suit or is it a claim for "money damages" under the Tucker Act?—will likely prove quite consequential. If it's an APA suit, an order setting aside the funding freeze as to the parties may well be appropriate, perhaps backed up by an injunction if the Trump administration is recalcitrant. The courts have made a practice of entering preliminary injunctive relief in anticipation of such an outcome (though we doubt that practice is sound). If it's a Tucker Act suit, in contrast, the relief will be money damages down the line, and immediate injunctive relief is probably off the table. The eventual resolution of the jurisdictional question may, indirectly, supply a gauge of the Supreme Court's willingness to police President Trump's assertion of authority to impound appropriated funds.

There's more where this came from, so if this is an issue that interests you, as they say, "read the whole thing."

An excerpt from the 11,000-word opinion in Hartzell v. Marana Unified School Dist., decided today by Ninth Circuit Judge Milan Smith, joined by Judges Wallace Tashima and Bridget Bade:

Following an incident on February 7, 2020, at Dove Mountain K-CSTEM school (Dove Mountain), Plaintiff-Appellant Rebecca Hartzell was banned from the school premises. Hartzell claims that she was banned from the school in retaliation for her protected speech. Defendants-Appellees, the Marana Unified School District (the District) and Andrea Divijak, the principal at Dove Mountain, assert that Hartzell was banned because of her conduct; specifically, they allege that Hartzell assaulted Divijak….

Hartzell is the parent of eight school-aged children, five of whom attended Dove Mountain during the 2019–20 school year. Divijak was serving as the principal of Dove Mountain at that time. In August 2019, the District opened Dove Mountain, a new kindergarten through eighth grade school. Dove Mountain is a part of and run by the District….

Hartzell has a master's degree in special education and a doctorate focusing on applied behavioral analysis and autism. She also became an associate professor of practice at the University of Arizona, and a director of the master's program in applied behavioral analysis at that institution….

On February 7, 2020, Dove Mountain hosted an event where students presented projects they had been working on for a few months. Two of Hartzell's children were scheduled to present in different rooms simultaneously. While attending the event, Hartzell saw Divijak in a classroom and approached her. Hartzell was accompanied by one of her children, who attended preschool at Dove Mountain. No other children were present.

Hartzell "sarcastically" thanked Divijak for "making [her] choose which kid [she was] going to support again today." Hartzell testified that she began to walk away, but Divijak responded that she was "sorry that [Hartzell was] just never happy." Hartzell testified that she turned back around and explained her proposed solution to the scheduling conflicts.

One of my many thankless tasks is to criticize conservatives. In many regards, this work is more unpleasant than criticizing liberals. When I talk about people on the left, the blowback is predictable: liberals call me a partisan hack, while conservatives support me, or at least silent. But when I talk about people on the right, conservatives attack me as a turncoat, while liberals hold me up as a token to attack those they despite. Like I said, the task is thankless. At times, I feel like Cassandra: I saw troubles long ago, but others wouldn't listen. Now, they're listening.

With each passing day, Justice Barrett is demonstrating why she had no business being appointed to the Supreme Court. Indeed, she should have never been put on the "short list" before she decided a single case. And I'm not sure why she leapfrogged over so many other qualified candidates in Indiana for the Seventh Circuit seat. Justice Kavanaugh was described as the most qualified Supreme Court nominee in modern history. Justice Barrett, by that standard, would be the least qualified Supreme Court nominee in modern history. Everything is laid out here. If the goal was to give Chief Justice Roberts a wing-woman, mission accomplished.

There is a constant drumbeat urging Justice Thomas and Justice Alito to retire. I think those calls are unlikely to succeed for many reasons, but also they are misguided. Thomas and Alito are still making important jurisprudential contributions to the Court. By contrast, Justice Barrett is not. I struggle to count five Barrett opinions that are noteworthy. And when Barrett casts an important vote, her actual bottom line is murky. We saw this in the Trump immunity case, yesterday in San Francisco v. EPA, and in today's USAID ruling (more on that confusing case later). Justice Barrett tells us to read the opinion, but when we read what she writes, we are left confused.

I'll lay down the marker. I think Justice Barrett should step down. I don't think she actually enjoys this job. I can't imagine her family actually prefers the swamp over South Bend. I don't think she enjoys being the focus of the political storm. And I am fairly confident she does not like President Trump. Look at this video! Justice Alito learned his lesson about making facial expressions at the Joint Session, but Justice Barrett has not.

Maybe Amy Coney Barrett does have a soul pic.twitter.com/kICrskHf8c

— ian (@Boatstory1) March 5, 2025

The next four years will be a never-ending series of balancing acts to avoid ruling for Trump. And to what end?

And if Barrett steps down and is replaced by someone in the mold of Justice Thomas or Alito, then Chief Justice Roberts will be sidelined for the foreseeable future. His shenanigans only work when he has a fifth vote. Roberts may see fit to step down as well. I don't think he really wants to be here either. Look at how quickly he scurried away after Trump talked to him.

"Thank you again. Thank you again. Won't forget," President Trump says as he shakes the hand of Supreme Court Justice John Roberts. pic.twitter.com/uFrvem6rUj

— Tom Dreisbach (@TomDreisbach) March 5, 2025

Cue the howls. I'm used to it.

I'm much looking forward to this program on free speech Thursday, March 13 at 6 pm in Phoenix, particularly because I've long so admired Justice Bolick. I first met him when I was a law student, and he had just recently before cofounded the Institute for Justice; he went on to become one of the leading libertarian lawyers in the country.

Since joining the bench, he has become one of the leading proponents of state courts interpreting their state constitutions differently (and often more broadly) than the U.S. Supreme Court has interpreted the federal Constitution. (They are, after all, often worded quite differently.) He's an excellent and creative legal thinker, and it's always a pleasure to have a conversation with him. If any of you are around Phoenix then, and are inclined to join us, it would be great to see you there.

Yesterday's Missouri Court of Appeals decision in Ameer v. Lyft, Inc. reversed a grant for summary judgment for Lyft, allowing plaintiff's claim to go forward on product liability and negligence theories; here's part of the analysis (from Judge Robert Clayton, joined by Judge Michael Wright and, as to the negligence claim, Judge John Torbitzky). The trial court granted summary judgment from Lyft, but the appellate court reversed, reasoning (in part) that Lyft's allowing people to "fraudulently and anonymously request[]" a ride may be legally actionable. Lyft "purportedly failed to contain multiple protections for its drivers including," among other things, "adequate data verification technology pertaining to a passenger's age, identity, or violent propensity":

Plaintiff avers Lyft implemented measures in states other than Missouri requiring purported passengers using the Lyft App with an anonymous form of payment "to provide a driver's license, state ID, or another type of document that shows their name or mailing address," allowing Lyft to discover that a "fictitious person who set up the Lyft account d[oes] not exist[ ] and that the form of payment [i]s unverified." Notably, to allow Lyft to be foreclosed from liability in Missouri for omissions in the design of the Lyft App which were allegedly implemented in other states would incentivize Lyft and other mobile application developers to: (1) not put protections in place for Lyft drivers and customers in Missouri; and (2) eliminate protections for its users in other states….

Plaintiff's petition specifically avers Lyft implemented measures in its App in other states requiring purported passengers using a Lyft account with an anonymous form of payment "to provide a driver's license, state ID, or another type of document that shows their name or mailing address," allowing Lyft to discover that a "fictitious person who set up the Lyft account d[oes] not exist[ ] and that the form of payment [i]s unverified" ….

You can download it at this link.

Abstract:

The Supreme Court's 1920s Education Trilogy cases–Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige–were important milestones in American constitutional history.

These decisions protected private schools, religious and otherwise, from the threat of closure in many states. This preserved educational freedom for parents who preferred private education for their children.

As a constitutional matter, the Trilogy became the foundation of a due process jurisprudence that moved beyond liberty of contract, property rights, and police power considerations to a broader protection of fundamental rights.

This Article describes external forces that may have motivated this shift—revulsion at the Ku Klux Klan, backlash against Progressive statism of the sort that demanded the closure of private schools, and the Justices' need to cultivate political allies among ethnic and religious minority populations.

This Article also reviews the idiosyncratic biographical factors that may have led Justice Brandeis to join the majority in Meyer. Brandeis' vote with the majority helped preserve the Education Trilogy cases as precedents that later generations of liberal Justices felt comfortable relying upon.

This morning, the Supreme Court denied the Trump Administration's application for a stay of a district court's temporary restraining order blocking the Administration's effort to pause the disbursement of funds from the U.S. Agency for International Development. The unsigned order in Department of State v. AIDS Vaccine Advocacy Coalition directs the district court to "clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines." This likely means that the approximately $2 billion in funds "owed for work already completed" before entry of the court's TRO must be paid out.

While the order is unsigned, it is clear that it was joined by the Chief Justice and the four female justices (Sotomayor, Kagan, Barrett and Jackson). Justice Alito dissented, joined by Justices Thomas, Gorsuch, and Kavanaugh. The dissent begins:

Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic "No," but a majority of this Court apparently thinks otherwise. I am stunned.

Justice Alito's dissent argues, among other things, that "the District Court's enforcement order should be construed as an appealable preliminary injunction, not a mere TRO." It further argues that the Trump Administration is likely to prevail on the merits on grounds of federal sovereign immunity (because the plaintiffs are seeking to force the disbursement of funds from the federal treasury). The dissenters seem unconvinced that the Administrative Procedure Act waives sovereign immunity for these purposes. This does not mean those who believe they are owed money by USAID have no remedy, just that they have to pursue such claims in the Court of Federal Claims instead of a federal district court.

The brief dissent concludes:

Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. The District Court has made plain its frustration with the Government, and respondents raise serious concerns about nonpayment for completed work. But the relief ordered is, quite simply, too extreme a response. A federal court has many tools to address a party's supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the Court does today, so I must respectfully dissent.

This is far from the end of the case. Indeed, since four justices dissented here, it is abundantly clear that there will be four votes for certiorari once the Department of Justice files a petition. In other words, stay tuned.

An interesting response to The Plaintiff Police by Sarah L. Swan, Rutgers (Newark); here's the Introduction:

If a person purposely shoots at and injures another, should the shooter be accountable to pay damages to the person harmed? Absent significant justification, in almost every circumstance in every state, the answer is yes. But in The Plaintiff Police, Professor Sarah L. Swan argues that if the injured person is a police officer, the answer should be no. If the officer is hit by a negligent driver's car, she argues for the same result: no tort claim. Professor Swan would dramatically limit police claims to exclude intentional, reckless, and negligent torts, with only narrow exceptions.

As support for this extreme measure, The Plaintiff Police draws on the backdrop of historical racism, significant abuses of police power, and a set of cases that push the limits of tort liability no matter who brings the claim. That set includes Doe v. Mckesson, in which a police officer who was severely injured by a rock-throwing protestor filed suit against Black Lives Matter (BLM) protest organizers (a case that we have previously criticized as insufficiently protective of First Amendment rights). Alongside concerns about racism in policing, The Plaintiff Police draws on the widespread perception that injured civilians can rarely obtain civil remedies for police abuses.

Together, these impressions of vindictive police plaintiffs, and immunity from tort liability, foster a reflexive hostility to the police. In light of these impressions, Professor Swan argues that any possibility of civil action or recovery by police officers will be disproportionate to civilian legal actions, worsen power differentials, dampen political participation, and harm local citizen-community participation. On that basis, The Plaintiff Police argues for a draconian, if easy to administer, rule: if the plaintiff is a police officer, the court should toss out the plaintiff's claims at the start of the case.

We are aware of no state or country that has granted its entire population absolute immunity from civil liability for the tortious, even criminal, harms that its civilians inflict on police. And we think there are good reasons they haven't. In this Response, we argue that the arc of U.S. common law runs in the exact opposite direction: the common law has expanded, and should continue to expand, the civil legal rights of wrongfully injured people, including civilians wrongfully injured by police and police wrongfully injured by civilians.

3/5/1934: Nebbia v. New York decided.

The Volokh Conspiracy

Dellinger v. Bessent Disappears Allowing Wilcox v. Trump to Train Sights on Humphrey's Executor

The Supreme Court will not have to weigh in on removal limitations at the Office of Special Counsel, but it could still have to consider those for the National Labor Relations Board.

ACLU on Campus Free Speech

Updated Stanford Encyclopedia of Philosophy Overview of "The Ethics and Rationality of Voting"

Written by Georgetown Prof. Jason Brennan.

FIRE Files Challenge to Texas A&M Drag Show Ban

Article III Inverted: The Supreme Court Surrenders to Inferior Court Supremacy.

Chief Justice Roberts and Justice Barrett are engaging in alternative dispute resolution, rather than constitutional adjudication.

Today in Supreme Court History: March 6, 1857

Neutral Principles for the Emergency Docket

The lower courts, which are issuing unappealing rulings, are inverting the Article III hierarchy. This Inferior Court Supremacy cannot stand.

DC Circuit Allows Removal of Special Counsel Dellinger Pending Appeal

For now, President Trump has removed Hampton Dellinger as head of the Office of Special Counsel.

Bagley and Bray on SCOTUS Denial of Stay in Department of State v. AIDS Vaccine Advocacy Coalition

An exploration of some of the thorny issues that divided the Court.

School District Can't "Prohibit All [Parents'] Speech on School Property That It Finds 'Offensive or Inappropriate'"

See, I Told You So

Phoenix Conversation March 13 with Arizona Supreme Court Justice Clint Bolick

Tort Law vs. Privacy: Ride-Share Services May Have Duty to Prevent Anonymous Riders

So the Missouri Court of Appeals concludes, in allowing a negligence/design defect case to proceed against Lyft, based on a driver's having been murdered by riders who "fraudulently and anonymously request[ed]" a ride.

The Supreme Court's Mysterious 1920s Due Process Education Trilogy

My new article is available on SSRN

Wednesday Open Thread

What's on your mind?

SCOTUS Denies Trump Administration Application to Stay District Court Order Blocking Pause of USAID Payments; Certiorari Sure to Follow

A pre-opinion release order divides the justices 5-4, but this may not preview the split on the merits.

"Should Tort Law Care About Police Officers?," by Ellen Bublick (ASU) & Jane Bambauer (Florida)

Today in Supreme Court History: March 5, 1934

Login Form

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

Special Offer!