The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy


Federal Court Rules Against Title 42 "Public Health" Expulsions of Migrants

The expulsions, ordered by the CDC for the supposed purpose of stopping the spread of Covid-19, are illegal for much the same reasons as was CDC the eviction moratorium recently struck down by the Supreme Court.


On Thursday, federal district court judge Emmet Sullivan issued a decision ruling that the Biden administration's use of "Title 42" public health authority to expel migrants at the border (including those otherwise eligible for asylum) is illegal. While the ideological valence of the two cases is very different, the reasons why the Title 42 expulsions are illegal are very similar to those that recently led the Supreme Court to rule against the federal eviction moratorium. In both situations, the Centers for Disease Control—at the behest of first Trump and later Biden—claimed sweeping authority that legal precedent indicates it should not have without clear, specific authorization by Congress.

The Title 42 expulsion order, mandating immediate expulsion of most migrants coming from Canada or Mexico, was first adopted under the Trump administration in March 2020, and was later extended by Biden, most recently in August. The Biden administration did rescind the expulsion of unaccompanied minors,. Nonetheless, many thousands of people continue to be summarily expelled under the order, including those who would otherwise qualify for asylum.

The ostensible rationale for the expulsion order was to prevent the spread of the Covid-19 virus. I say "ostensible" because CDC public health experts warned the Trump administration that the policy would not actually do much to stem the spread of Covid. Many months of both Title 42 expulsions and other international travel restrictions amounting to the most restrictive immigration policy in the history of the United States, did little or nothing to prevent either the initial Covid virus or later variants (such as the Delta version), from becoming established in the United States.

It seems likely that the Trump administration used the Covid crisis as an excuse to pursue its longstanding anti-immigration agenda, and Biden has partially continued the restrictions for political reasons of his own (including, perhaps, looking tough on Covid, and avoiding attacks from the right for being too soft on border control).

The legal authority cited by both Trump and Biden to justify the Title 42 expulsions is 42 USC Section 265, which gives the CDC Director the following powers:

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.

In his recent ruling Judge Sullivan indicates that this statute does not grant the CDC the power to expel migrants, as opposed to exercise such less extreme measures as imposing quarantines:

As Plaintiffs point out, Section 265 simply contains no mention of the word "expel"—or any synonyms thereof—within its text…. The lack of express terms within the statute is significant: even "broad rulemaking power must be exercised within the bounds set by Congress," Merck & Co. v. U.S. Dep't of Health & Human Servs., 385 F. Supp. 3d 81, 92, 94 (D.D.C. 2019), aff'd, 962 F.3d 531 (D.C. Cir. 2020)…

Indeed, particularly where the statute in question regards such a "severe 'penalty'" as deportation, Padilla v. Kentucky, 559 U.S. 356, 365 (2010)…. the [Supreme Court] Court is loathe to recognize an implied power of forced removal from the country, see Util. Air Reg. Grp., 573 U.S. at 324 ("We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'"). Rather, as this Court explained in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 512 (D.D.C. 2020), "when Congress wants to grant the power to expel individuals out of the United States, it does so plainly." P.J.E.S., 502 F. Supp. 3d at 512….

The Court also finds that the plain text of Section 265 is supported by the statutory context. See Brown & Williamson Tobacco Corp., 529 U.S. at 132-33 (2000) ("It is a 'fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme….'" For example, in Section 271, Congress provided for specific "penalties" for those
37persons who or vessels that violated public health regulations prescribed under the relevant sections, including Section 265. 42 U.S.C. § 271. For individuals, Section 271 states that any violation "shall be punished by a fine of not more than $1,000 or by imprisonment for not more than one year, or both." Id. § 271(a). Removal from the United States, however, is not included as a penalty. Moreover, Section 271 refers to the regulations prescribed under Section 265 and others as "quarantine laws," further suggesting that the CDC's powers were limited to quarantine and containment.

It is notable that Judge Sullivan relies the rule that courts "expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'" This is exactly the same language from the exact same case that the Supreme Court cited in striking down the DC eviction moratorium. In both cases, the administration used potentially ambiguous statutory language to claim vast discretionary authority over a major area of economic and social policy.

In the eviction moratorium case, it was power amounting to the authority to shut down almost any activity that might spread disease. Here, it is the power to expel virtually any non-citizen at any time. After all, "communicable diseases" exist at all time times in every nation in the world. And the CDC can always claim there is "serious danger" that migrants might "introduce" them into the United States, especially since the statute does not require the agency to prove that such a danger actually exists, but merely to "determine" that it does so.

There is another flaw in the government's position here that Judge Sullivan does not mention. It has to do with the passage in Section 265 indicating that the agency's power is limited to measures that could prevent the "the introduction of such disease into the United States." By now, it is impossible to prevent the "introduction" of Covid-19 into the United States for the simple reason that it is already here, and  already widespread. The most plausible interpretation of "introduction" is that it refers to the spread of a disease that is not already present, or at least not yet widely prevalent. I cannot meaningfully "introduce" a chemical into a substance where it is already present, nor "introduce" a person to someone she has already met.

Of course, it is also possible to argue "introduction" includes even the movement of additional carriers of a disease that is already widespread in the US. But that interpretation is both less linguistically plausible, and raises serious constitutional problems. By that standard, the CDC could use Section 265 to expel virtually any migrant from any country. Communicable diseases exist everywhere in the world, and every person could potentially be a carrier of one or more of them.

Such boundless delegation of deportation authority would clearly violate the nondelegation doctrine, a point emphasized by several of the lower court rulings striking down the eviction moratorium. At the very least, interpreting Section 265 in this way violates the longstanding rule that courts must, where at all possible, interpret federal statutes in a way that avoids raising serious constitutional problems. Adopting the narrower interpretation of "introduction" satisfies that rule, whereas the broad one does not.

If you thought the Trump and Biden administrations abused their powers when they adopted the eviction moratoria, and that the courts were right to rule against them, you should also oppose the Title 42 expulsion order for the same reason. Both are dangerous executive power grabs that undermine the separation of powers, and could easily be abused if left unchecked. As always, even if you trust a president of your own preferred party with such vast power, you probably don't have the same faith in the other party.

Judge Sullivan's ruling also includes a number of other issues, related to class certification and remedies. I will leave those to people expert on those topics. It is notable that Judge Sullivan has issued an injunction against the Title 42 policy, though he has temporarily stayed it for 14 days. The injunction will go into effect at that time, unless further stayed by a higher court.

The Biden administration has appealed the district court ruling to the DC Circuit, and perhaps eventually to the Supreme Court. This legal battle is far from over.

It's unlikely the administration will listen to me. But I hope they reconsider the appeal, and instead simply accept the district court decision. Do they really want the next GOP president to have the power to use the CDC to expel virtually any migrants at any time he wants? For reasons discussed above, that is the likely result of an administration victory in this case. Such a legacy would be radically at odds with Biden's promises to protect migrants and refugees, and reclaim "Americas values" as a "nation of immigrants."


Allegations in Complaint Against Real Estate Agent Broadly Protected Against Libel Liability

So holds the Nevada Supreme Court, applying Nevada law.


From Williams v. Lazer, decided Thursday by the Nevada Supreme Court:

After respondent threatened to sue appellant over a text message that he perceived as defamatory, appellant filed a complaint with the Nevada Real Estate Division (NRED), alleging that respondent acted unprofessionally and unethically in a real estate matter. Respondent filed the underlying tort complaint based on appellant's NRED complaint.

Appellant, claiming that the anti-SLAPP statute and absolute litigation privilege protected her from liability, moved to dismiss…. [W]e conclude that appellant met the good faith standard under the anti-SLAPP framework because her statements were either opinions, were truthful, or were made without knowledge of their falsehood, as supported by her sworn affidavit. We further conclude that the absolute litigation privilege applies at the second prong of the anti-SLAPP analysis and that an NRED proceeding is quasi-judicial for purposes of the privilege….

Appellant Daphne Williams, an African-American woman, agreed to purchase a condominium that she was renting from the property owner. Respondent, Charles "Randy" Lazer, a licensed real estate professional, represented the seller in the sale, and Williams acted without an agent.

Williams and Lazer had communication problems during the transaction, and after delays in closing, Williams sent Lazer a text stating that she was contemplating filing a complaint with the NRED regarding what she perceived as Lazer's racist, sexist, and unprofessional behavior. Lazer responded to the text by contacting NRED, the seller, Williams's mortgage lender Bryan Jolly, an attorney, and another real estate professional to explain his perception of what occurred. Further, after the sale closed, Lazer sent a demand letter to Williams seeking several thousand dollars and an apology in exchange for not filing a tort action against her based on the text message she sent only to him.

Williams refused the demand and subsequently filed an NRED complaint, alleging that Lazer (1) "displayed unethical, unprofessional, racist and sexist behavior" during the transaction; (2) inappropriately shared confidential information with her about his personal relationship with the seller; (3) contacted the appraiser before the appraisal, which she believed was unethical based on a conversation she had with an NRED employee; (4) falsely claimed that Williams would not allow the seller's movers to enter the condominium to remove the seller's property and that Williams caused delays in closing; (5) failed to send her a fully executed copy of the signed purchase agreement; and (6) had the seller call Williams to encourage her to apologize to Lazer for her text message.

Lazer then filed the underlying complaint, alleging defamation, negligence, business disparagement, and intentional infliction of emotional distress….

[Williams'] statement that Lazer was racist, sexist, unprofessional, and unethical is a non-actionable opinion and that either her remaining factual statements are true or Lazer failed to provide evidence that Williams knew the statements were false when she made them….

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Free Speech

Court Seals Name of Party, Orders Public Access Advocacy Group Not to Mention the Name

An interesting prior restraint case now being litigated in the Hawaii Supreme Court.


From the Petition for Prohibition and Mandamus in Civil Beat Law Center for the Public Interest v. Chang, filed yesterday in the Hawaii Supreme Court:

Civil No. 05‑1‑863 has a "confidential" case designation, and thus nothing in the case (parties, judge, docket, filings) is publicly accessible. To understand whether a compelling reason existed for such comprehensive secrecy, Petitioner Civil Beat Law Center for the Public Interest (Law Center) asked the circuit court for public access to Civil No. 05‑1‑863.

Respondent Judge [Gary W.B. Chang] denied that request and then restrained the Law Center's ability to discuss the case publicly under threat of sanctions for contempt….

In October 2020, the Judiciary provided the Law Center with a list of case numbers for civil cases flagged as "confidential" in the preceding 15 years. For cases flagged as "confidential", the entire case file—including the docket and case name—is inaccessible to the public. In November 2020, the Law Center began requesting access to randomly selected "confidential" cases. To date, none of the cases that the Law Center challenged has met the constitutional standards for sealing the entire case file. Civil No. 05-1-863 was on the list of "confidential" cases provided to the Law Center in October 2020.

On June 29, 2021, the Law Center requested access to the case file in Civil No. 05‑1-863…. On July 29, a person purporting to be an out-of-state attorney representing the plaintiff contacted counsel for the Law Center to discuss the motion to unseal, revealing details about the parties and the nature of the allegations in the case. According to the circuit court's subsequent orders, on August 4, the plaintiff … [filed a document with the court] requesting confidentiality for plaintiff's identity.

On August 11, the circuit court held that the "Plaintiff showed good cause to maintain her identity sealed." That decision ordered: "The above-entitled case shall be unsealed. However, individual documents that contain confidential or sensitive information, including the identity of the plaintiff, shall remain sealed and redacted copies of said documents will be made accessible to the public."

The following day, on August 12, finding that the August 11 order "did not go far enough to satisfy the court's intent to prevent the identities of the parties from disclosure," the circuit court … granted the Law Center special access to the docket, but kept the docket sealed publicly and denied any other unsealing. The Law Center's motion to unseal, however, had only requested access to the extent required by the constitutional standards for accessibility to court records for all members of the public. The Law Center has never requested special access to court records solely for itself in this case or any other. After the Court Administrator confirmed that the public would not have access to the docket, the Law Center declined to exercise the special access rights granted by Respondent Judge and thus has not seen the docket in Civil No. 05‑1‑863.

After granting the Law Center special access rights in the August 12 order, the circuit court then held:

In granting Petitioner leave to view the docket sheet herein, the court also prohibits Petitioner from disclosing, communicating, disseminating, publicizing, compromising or otherwise publishing the name or identity of any of the parties in the instant case. This Order shall apply to Petitioner and its agents, employees, associates, assignees, counsel, appointees, assistants, affiliates and any other person or entity operating in concert with, at the direction or request of, or with the knowledge of Petitioner. Any violation of this Order may be punishable by contempt of court….

The Law Center publishes on its website the filed motions and related documents and orders when it is involved in cases, including cases involving motions to unseal as a nonparty. As a result of the circuit court's gag order and threat of contempt, the Law Center has not published anything about Civil No. 05‑1‑863….

[1.] The circuit court has hidden an entire case file from the public based on a secret rationale.

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Terrible Supreme Court Decisions that Should be Added to the "Anticanon" of Constitutional Law—Part I

Constitution Day is a good time to consider the issue of whether we have been overly accepting of some horrendous Supreme Court precedents. The Chinese Exclusion Case of 1889 is a great example.


Today is Constitution Day. It is an appropriate time to celebrate the accomplishments of American constitutional law. But it is also a good time to consider whether we have been too soft on some of its greatest failures. I suggest three such rulings cry out for far more condemnation than they have so far received: The Chinese Exclusion Case (1889), Euclid v. Amber Realty (1926), and Berman v. Parker (1954). These rulings are well-known to specialists in their respective fields (immigration and property law). All three have their critics. But they rarely get much attention in law school constitutional law classes, and most lawyers either assume they are right, or even remain largely unaware of them.

In this post, I cover the Chinese Exclusion Case. Euclid and Berman will be dealt with in future posts.

Most members of the legal profession are aware of the "canon" of great Supreme Court constitutional law decisions that virtually everyone supports, and considers to be major positive milestones in constitutional history. Brown v. Board of Education is probably the most famous example. If your theory of constitutional interpretation rejects one of these, it's a serious strike against it.

On the other hand we also have rulings that are part of what has come to be known as the "anticanon" of constitutional law—decisions that are almost universally reviled, and seen as exemplars of grave errors we should not repeat. In the closest thing we have to a canonical article about the anticanon, Columbia law Professor Jamal Greene identifies Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States as the most widely recognized "anticanonical" rulings. I think there are several others that are at least close to that level, such as Buck v. Bell (1927) (upholding mandatory sterilization of the mentally ill) and Pace v. Alabama (1883)(upholding laws banning interracial marriage and penalizing interracial "fornication" more than the intraracial kind).

What enables a decision to "achieve" anticanonical status? Greene suggests it is largely a matter of historical happenstance. Later generations of legal commentators found these cases useful examples of ideas and legal doctrines they wanted to stigmatize.  That is surely true to an extent. But I think there are also some more systematic patterns here.

If you look at the most prominent anti-canonical cases, it turns out they have a number of common characteristics. First, they feature (or at least are believed to be feature), terrible legal reasoning. But that by itself is far from enough. Lots of decisions are poorly reasoned. The second, and much more restrictive condition, is that they are believed to have had terrible real-world effects. Dred Scott, Lochner, Plessy, and Korematsu, all are seen as having had horrific consequences for large numbers of people: slaves, unskilled workers, racial minorities, and Japanese-Americans subject to detention in awful internment camps. I think this belief wrong in the case of Lochner. But there is no doubt it is widely held.

It isn't just that these decisions are seen as having bad effects (lots of cases are like that). Rather, the effects in question are believed to have been on a very large scale, seriously harming many thousands of people —or even more.

Third, most—but not all—of the anticanonical decisions upheld government policies that promoted racial discrimination and oppression. That's certainly true of three of the four cases on Greene's list—Dred Scott, Plessy, and Korematsu. The same goes for Pace and to some extent even Buck v. Bell (blacks were far more likely to be subjected to forced sterilization than whites). If there is an original sin of American constitutional law, it is race-based oppression.

By these criteria, the Chinese Exclusion Case, Euclid, and Berman all richly deserve to be added to the list.

The Chinese Exclusion Case is the 1889 decision in which the Supreme Court first decided that the federal government had a general power to exclude immigrants, for virtually any reason it wanted. The Court's legal reasoning was execrable. The Court did not try to link this power to anything in the text of the Constitution. Instead, they upheld it based on the idea that the power to exclude migrants is one that every sovereign nation must be assumed to have. In so doing, they completely ignored the many flaws in this "it's gotta be in there somewhere" theory. I listed several of them here. They also ignored the insistence of leading Founding Fathers, such as James Madison  (the "father of the Constitution") and Thomas Jefferson, that no such power was ever granted to the federal government. In his Report of 1800, addressing this very issue, Madison even specifically warned against the theory the 1889 Court adopted:

The reasoning here used, would not in any view, be conclusive; because there are powers exercised by most other governments, which, in the United States are withheld by the people, both from the general government and from the state governments. Of this sort are many of the powers prohibited by the Declarations of right prefixed to the Constitutions, or by the clauses in the Constitutions, in the nature of such Declarations. Nay, so far is the political system of the United States distinguishable from that of other countries, by the caution with which powers are delegated and defined, that in one very important case, even of commercial regulation and revenue, the power is absolutely locked up against the hands of both governments…

In other words, the fact that a given power is enjoyed by the governments of other nations is no reason to assume that the US federal government must have it. The whole point of the American experiment was to set up a new and better form of government, not merely imitate those that came before. What was the 1889 Court's response to Madison's argument and others like it? Crickets.

The effects of the Court's decision were massive. In the short run, it upheld the deeply racist Chinese Exclusion Act of 1882, which—as the name implies—barred most would-be Chinese immigrants from entering the United States. As a result, many thousands of people were condemned to a lifetime of poverty and oppression. In the medium to long-term, the decision facilitated other exclusionary immigration legislation, much of it also motivated by racial and ethnic bigotry, such as the Immigration Act of 1924, which barred most European immigrants, in large part because of prejudice against Jews and southern and eastern Europeans.

The Chinese Exclusion Case also helped lay the foundation for the "plenary power" doctrine, which to this day exempts immigration restrictions from most of the individual-rights constraints that apply to virtually all other exercises of federal power. That has led to a pattern of constitutional double-standards in immigration law that, to this day, authorize a variety of injustices that courts would strike down as unconstitutional in virtually any other context.

When it comes to racism, the Chinese Exclusion Case is hard to beat. As already noted, the legislation it upheld was itself motivated by racism, and the ruling had the predictable effect of setting a precedent for future racist immigration restrictions. But it's important to recognize that the racism here wasn't limited to the law the court upheld. It was also explicitly present in the Court's own reasoning. Justice Stephen Field's opinion for the Court explicitly indicates that "[t]he differences of race added greatly to the difficulties of the situation" the Chinese Exclusion Act was intended to address, describes the Chinese as unassimilable people who threaten to "overrun" the country, and avows that the government must have the power to bar  "the presence of foreigners of a different race in this country, who will not assimilate with us."

The embrace of racism here is much more explicit than anything in Plessy v. Ferguson, where the majority was careful to (disingenously) claim that the law in question was not intended to oppress African-Americans. It is, notable, however, that the Chinese Exclusion case was brought to us by most of the same justices who decided Plessy just seven years later, and embodies many of the same types of bigoted assumptions.

I would be happy to see The Chinese Exclusion Case completely overruled in a decision that adopts Jefferson and Madison's position that there is no general federal power to restrict immigration. Such an outcome is, obviously, highly unlikely.

But there are a number of more moderate ways to get rid of this terrible precedent. The most obvious is to overrule the holding that the power to restrict immigration is a virtually unlimited, nontextual power, and instead lodge immigration restriction in Congress' power to regulate foreign commerce (as advocated by a number of legal scholars).

In this scenario, Congress would still have broad power to restrict immigration. But that authority would be limited in the same ways as Congress' power to regulate interstate commerce (listed in the same phrase in the Constitution). The Supreme Court has enforced some structural limits on the latter.

More importantly, an immigration-restriction authority based on the Foreign Commerce Clause would be subject to the same individual-rights limitations as other exercises of federal power. That means no more judicial deference to immigration restrictions that discriminate on the basis of race, ethnicity, religion, gender, political views, and other categories that would be prohibited in other contexts. It also means immigration detention and deportation would be constrained by the same constitutional due process rights that apply to other laws. No more toddlers being forced to "represent" themselves in deportation cases!

Even this more limited overruling of the Chinese Exclusion Case is highly unlikely to happen in the near future. But it is at least something  the Supreme Court should think about.

In the meantime, lawyers, legal academics, and others should consider why this awful ruling doesn't get nearly as much opprobrium as it deserves. At the very least, we should give up the still-widespread assumption that it is obviously correct. And law professors should include it in their introductory constitutional law courses (which most currently don't), and treat it as a highly consequential decision open to serious question.







Short Circuit: A Roundup of Recent Federal Court Decisions

Dairy farm defamation, foreign speech, and a path of blood.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

After a fatal police shooting in Maine in 2017, Joshua Gray criticized the officers' conduct on social media. Which officials did not like, and so when Joshua applied for a license to expand his private investigator business into the state, they turned him down, citing his lack of "good moral character." A First Amendment violation? Maine's highest court didn't think so. So now Joshua and IJ are asking the U.S. Supreme Court to hear his case and decide whether the gov't can silence its critics by denying them the right to work in the occupation of their choice. Click here to read the cert petition.

  • If you're in a national park in Maine and you drive a car into a tree at high speed with three passengers (who all die as a result) in the middle of the night, and the police have limited personnel, have to deal with the bodies and your own injuries, have no equipment on hand to draft an affidavit, and their attorney doesn't at first call them back, are these exigent circumstances that justify a warrantless blood draw to see if you had too much hooch? District Court: No. First Circuit: Yes. Dubitante opinion: I would have remanded for fact-finding on BAC dissipation.
  • Nonprofit groups challenge Rhode Island disclosure laws for political advertising, including a requirement that ads list the names of the group's five largest donors, alleging a variety of First Amendment theories. First Circuit: Whatever rules might apply to other areas of speech, the Supreme Court has been pretty clear that campaign finance disclosure is constitutional. And now for this week's Judge Selya Vocab Quiz: velivolant, ipse dixit, pellucid, remonstrance, pretermit.
  • Allegation: Rikers Island inmate develops large, painful gum abscess that interferes with talking, eating, and sleeping. Officials ignore numerous increasingly urgent requests for appropriate treatment. Indeed, he needs surgery, but he's offered only a teeth cleaning and a tooth pulling. Second Circuit (over a dissent): Which would not violate the Eighth Amendment. Case dismissed.
  • Ashley Borough, Penn. police officer gives women a choice between getting arrested or giving him oral sex. He gets 15-year sentence after pleading guilty to violating their civil rights under color of law. Third Circuit: Which isn't a sex offense, so the district court can't order him to register as a sex offender.
  • Is the National Security Agency unconstitutionally spying on Wikimedia's internet communications? Fourth Circuit: It's a secret. Case dismissed.
  • Man takes Shreveport, La. officers on low-speed chase. He briefly exits his pickup, rifles around in the back, and tries to re-enter (allegedly visibly empty-handed). An officer (allegedly without warning) shoots him four times. He survives. Fifth Circuit (laudably including a link to the video): We can only review the law, not the facts, and there are too many factual disputes. No qualified immunity for now. (Also, no Heck bar.)
  • Can the feds prioritize which illegal immigrants to investigate and deport—say, those who commit certain kinds of crimes over those who are more law abiding? Louisiana officials, Texas officials, and a district court judge: Absolutely not! Congress must authorize any prioritizing. Fifth Circuit: Well, actually, the "who to charge" decision is generally shielded from judicial review and committed to the gov't's discretion, so we will stay at least that part of the district court's nationwide injunction. Also, it seems a little strange that the nationwide injunction applies in the Ninth and Eleventh Circuits even though courts in those circuits rejected similar challenges—but we'll leave it at that.
  • Would-be busker wants to perform in Houston, but it's illegal for him to do so in his preferred areas. District court: He hasn't been arrested, cited, or threatened with either. He doesn't have standing to sue. Fifth Circuit: Something like 40 years of precedent say otherwise. The case can proceed.
  • Noncitizen victims of serious crimes (and qualifying family members) who cooperate with law enforcement are eligible for special visas, but the feds tend to take an absurdly long time processing the applications (and even the work authorization applications that would let visa applicants work in the meantime). Some applicants sue. Sixth Circuit: Their complaint at least plausibly alleges the sort of unreasonable delay the Administrative Procedure Act forbids. The cases may proceed.
  • For over 935 weeks in a row, anti-Israel protesters have picketed services at a synagogue in Ann Arbor, Mich., holding signs with such inflammatory messages as "Jewish Power Corrupts" and "End the Palestinian Holocaust." Two members of the congregation sue, raising a variety of constitutional claims. Sixth Circuit: None of which can overcome the robust protection afforded by the First Amendment.
  • Last year, Tennessee passed a law prohibiting physicians from performing abortions at specified "gestational ages," all of them pre-viability (at "fetal heartbeat," at six weeks, at eight weeks, etc.). The law also criminalizes a physician's performing an abortion if the physician "knows" that the abortion is "because of" race, sex, or Down syndrome diagnosis. District court: Preliminary injunction entered. Sixth Circuit: Affirmed. The pre-viability restriction conflicts with Supreme Court precedent, and the sex-race-Down-syndrome provision is unconstitutionally vague. Partial concurrence in the judgment: I agree that Supreme Court precedent invalidates the first bit, but that precedent is unpersuasive. And the second bit isn't vague.
  • Much like the Second Circuit, the Seventh Circuit isn't all that concerned about strip clubs' being excluded from federal COVID relief funding.
  • After the Supreme Court ruled that life sentences without possibility of parole for crimes committed under the age of 18 are unconstitutional, Missouri officials began to offer that possibility. Eighth Circuit (over a dissent): But the state's new policies and practices are constitutionally deficient. For instance, inmates are allowed one delegate at parole hearings, and the delegate is not permitted to speak about a range of subjects (like an inmate's efforts at rehabilitation) that the parole board must consider when making its decision. Victims and law enforcement, on the other hand, can speak with no limitations on subject matter.
  • Was Rep. Devin Nunes defamed when Heart Publications published an article claiming he was involved in a conspiracy to cover up undocumented laborers at his family's dairy farm? Eighth Circuit: He at least survives a motion to dismiss. But we decline his invitation to revisit New York Times v. Sullivan, since we can't actually do that.
  • Upset by a business deal gone bad, two Australian citizens start an international campaign to inform the public about their side of the story, sending hundreds of emails to employees of their former business associate and even hiring vans to drive around L.A. displaying messages criticizing him. The business associate sues the men for stalking and wins $2.2 mil in damages. Ninth Circuit: But all of their activity was protected by the First Amendment, so no dice. Dissent: The First Amendment doesn't protect foreigners outside the United States.
  • A recent California law imposes civil and criminal penalties on employers lest they compel unwilling employees to agree to arbitration as a condition of employment. Is the law preempted by the Federal Arbitration Act? The Ninth Circuit says no, but the penalties are no good. Dissent: C'mon, this is just so Ninth Circuit of you guys.
  • Earlier this year, California's governor issued an executive order imposing a moratorium on the death penalty. Does that moot a long-running suit over successive iterations of the state's lethal injection protocols? Ninth Circuit: Not at all. There's nothing stopping him or a future governor from rescinding the order. Separately, district attorneys from three counties can't intervene in the suit. Dissent: The DAs are trying to restore the death penalty (pursuant to a 2016 proposition passed by voters), and the California attorney general is not. They should be allowed to intervene.
  • Sacramento, Calif. inmate experiences morphine withdrawal after staff cut him off cold turkey—which they did after discovering he was hoarding his meds instead of ingesting all of them. Eighth Amendment violation? Ninth Circuit: Might could be. Prison policy requires staff watch inmates ingest morphine when dispensed, and there's no deference for officials not following policy. New trial.
  • The U.S. Forest Service obtained an easement in 1962 for a logging road across two private properties neighboring Montana's Bitterroot National Forest. Nearly half a century later, the Forest Service announced the road provided public access to the forest, leading to traffic hazards and trespassing. The neighbors sue to confirm that the easement doesn't allow public access. Ninth Circuit: Alas, the Quiet Title Act's statute of limitations is jurisdictional, and the case was brought too late.
  • Transgender English professor seeks tenure but is denied under suspicious circumstances. She sues, alleging violations of Title VII, seeking compensation and reinstatement with tenure. Tenth Circuit: While this appeal was pending, the Supreme Court ruled in Bostock v. Clayton County that discrimination based on gender identity violates Title VII, which makes this case a lot easier.
  • Eleventh Circuit (1985): It violates the Eighth Amendment for corrections officers to leave an inmate with a bleeding wound sitting around for two hours before getting him medical attention. Eleventh Circuit: (2021): That case was about a head wound that left a pool of blood. But this case is about a cut to the hand that left a "path of blood" as the officer escorted the plaintiff to a holding cell. Qualified immunity. Concurrence: He sued the officer who walked with him for a few minutes but not the officers he was handed off to, who were the ones who left him for hours.

There are more than 20,500 federal law enforcement officers in Texas, Mississippi, and Louisiana, and, thanks to some recent decisions in the Fifth Circuit, nary a one of them can be sued for violating the Constitution. Apart from just being straight-up terrifying (the cases involve federal police beating people up and trying to shoot them for no reason), this de facto absolute immunity for federal officers is a radical departure from history. That's why Professor Peter Schuck, who literally wrote the book on constitutional accountability, Professor Seth Stoughton, a former police officer, and a cross-ideological group of public policy organizations have all filed amicus briefs urging the Supreme Court to take up Byrd v. Lamb, an IJ case, and ensure that victims of unconstitutional misconduct by federal officers have a legal remedy. Click here to read the briefs. Click here to watch IJ client Kevin Byrd tell his story.


California Enacts Two Important New Zoning Reform Laws

Senate Bill 9 and Senate Bill 10 would make it easier to build new housing in much of the state.


Yesterday, California Governor Gavin Newsom signed into law two bills that significantly diminish zoning restrictions that block the construction of new housing in that state. This is a significant step because zoning and other regulatory barriers are the main cause of housing shortages and resulting high prices that lock millions of people (particularly the poor and lower middle class) out of areas where they could otherwise find valuable job opportunities. In addition to preventing many people from "voting with their feet" and finding job opportunities, these policies also greatly diminish overall economic growth and productivity, thereby harming the nation as a whole, not just those immediately effected. Recent evidence suggests that the problem is even more severe than previously recognized.

There is a strong cross-ideological case for ending exclusionary zoning. It would simultaneously massively expand opportunities for the poor and minorities, eliminate major violations of private property rights, and boost economic growth.

California has some of the most restrictive zoning in the entire nation. Because of the state's size, location, and economic significance, its restrictions cause more harm than those anywhere else in the country. Until now, zoning reform in California has been stymied by opposition from "NIMBY" interests, progressives suspicious of free markets and property rights, and some conservatives (though the latter have little power in the overwhelmingly Democratic California legislature). But the enactment of SB 9 and 10 is a major shift. Here is a helpful overview of the two bills. And here's a more detailed description of SB 9, the more important of the two laws.

To briefly summarize, SB 9 allows owners of lots in areas currently zoned for single-family residences only, to build a second housing unit on the property. In addition, they can also divide the lot into two separate properties. A property owner who takes both steps can increase the number of units on his or her plot from one to as many as four.

Significantly, SB 9 exempts the new housing it authorizes from a variety of constraints often used by local "NIMBY" groups to block new construction, such as the CEQA law, which local activists have leveraged to stymie all kinds of new development, including even forestalling an increase student enrollment at a major state university.

A study by the Terner Center for Housing Innovation at UC Berkeley, which is more pessimistic than many SB 9 supporters, still finds that the bill would allow the construction of some 700,000 new "market-feasible" residences, though it also warns that the actual results are likely to fall short of this figure, because it will take time to do all that building, and many owners won't take advantage of their new rights. Still, even if the true figure turns out to be only half that many, that's still 350,000 new homes, enough to house a million or more people.

In addition, the passage of SB 9 by large majorities in both houses of the state legislature could generate momentum for further zoning reform. Given California's political and economic significance, reforms that succeed there could also be copied in other states.

Orange County Register and Reason columnist Steven Greenhut, an expert on California politics and public policy, has some additional thoughts on the potential benefits of SB 9 here. Among other things, he rightly criticizes those conservatives who have betrayed their own supposed commitments to property rights and family values by allying with NIMBY Democrats to oppose the bill.

SB 10 is a much less sweeping bill. It allows, but, unfortunately does not require, local governments to upzone parcels located in "transit-rich" or "infill" areas for up to ten housing units. SB 10 is a considerably watered down version of previous reforms offered by its principal author, State Sen. Scott Wiener, California's—and perhaps the nation's—leading legislative advocate of "YIMBY" housing policies. The obvious limitation is that the decision on whether to proceed with  upzoning rests in the hands of local governments—the very entities most responsible for blocking new housing construction in the first place.

Still, a large part of the state fits in the areas covered by SB 10, and at least some entrepreneurial jurisdictions might take advantage of it. And, like SB 9 (though probably to a lesser degree), the passage of SB 10 could help generate momentum for further reforms.

Even under the most optimistic assumptions about the effects of SB 9 and 10, these reforms will fall well short of fully addressing California's housing crisis. But they are major steps in the right direction, as are similar recent successes in other jurisdictions. Hopefully, reformers can learn from and build on these victories.





Free Speech

Certain Documents Unsealed in Nunes v. Lizza


I wrote last month that I had moved to intervene and unseal certain documents in Nunes v. Lizza; though plaintiffs didn't consent to the lawsuit, they ended up not opposing, and the court yesterday agreed to release largely unredacted versions of the documents. (I had no objection to the redaction of the names of employees and possible journalistic sources, so those remain redacted.)

I'm at a conference today and tomorrow, and was traveling yesterday, so I haven't sorted through the material yet, but if any of you folks are interested, you can see defendants' motion to compel (and compare it to the original redacted version), defendants' supporting memorandum (original redacted version), plaintiffs' resistance (original redacted version), and defendants' reply (original redacted version). I hope to blog more about this myself next week.

Free Speech

Paycheck Protection Program Exclusion of Nude Dancing Establishments Likely Constitutional

So says the Seventh Circuit, agreeing with an earlier Second Circuit decision.


From Camelot Banquet Rooms, Inc. v. U.S. SBA, decided Wednesday by the Seventh Circuit, in a per curiam opinion by Judges Michael Kanne, Ilana Rovner & David Hamilton:

Plaintiffs in this case are about fifty businesses all over the country that offer live adult entertainment in the form of nude or nearly nude dancing. They seek to obtain loans under the second round of the Paycheck Protection Program enacted by Congress to address economic disruption caused by the Covid-19 pandemic. By statute, Congress excluded plaintiffs and several other categories of businesses from the second round of the Program.

Plaintiffs assert that their exclusion from the Program violates their constitutional rights, primarily under the Free Speech Clause of the First Amendment.

For one brief shining moment, the district court agreed, and "issued a preliminary injunction that enjoins the United States Small Business Administration (SBA) from denying plaintiffs eligibility for the loan program based on the statutory exclusion." But the Seventh Circuit stayed the injunction pending appeal; though the matter still awaits a final decision, the question whether to grant the stay required the court to take a peek at the merits, and here's what it wrote (in an opinion that's quite consistent with a similar Second Circuit decision from March):

The problem with plaintiffs' First Amendment claim and the preliminary injunction here is that Congress is not trying to regulate or suppress plaintiffs' adult entertainment. It has simply chosen not to subsidize it. Such selective, categorical exclusions from a government subsidy do not offend the First Amendment.

The Supreme Court has repeatedly drawn a line between government regulation of speech, on one hand, and government subsidy of speech on the other. Its decisions show that the government is not required to subsidize activity simply because the activity is protected by the First Amendment….

[A] selective subsidy program may violate the First Amendment if it is "aim[ed] at the suppression of dangerous ideas." To take an easy example, even if Congress can exclude lobbyists entirely from the Program's subsidies, it could not choose to subsidize Democratic lobbyists while excluding Republicans. Plaintiffs' theory here is that Congress chose to exclude their businesses from the subsidy program because it deemed their "ideas" about sexuality to be dangerous.

This theory does not seem to distinguish between government suppression of protected activity and denial of a subsidy. Plaintiffs' theory seems to be that the denial of a subsidy is itself the act of suppression…. [But the selective-subsidy cases] surely require[] something more, like viewpoint discrimination, than denial of the subsidy itself….

The [district court's] theory was that even if the exclusion of plaintiffs' businesses from the Program was not "traditional viewpoint discrimination," the exclusion's focus on "prurience" created a free speech problem. The exclusion, as the court saw the issue, depends on prurience, which the court saw as the expressive, "sexually arousing" "message" of the adult entertainment. The court viewed the exclusion as thus an effort to use a subsidy exclusion to suppress a "dangerous idea[.]" …

[But t]he statutory exclusion from the Program of businesses with prurient live entertainment is better understood not as viewpoint discrimination but as a permissible classification based on subject matter. The Supreme Court made this point in R.A.V. v. City of St. Paul:

"When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its pruriencei.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages."

In effect, the Court was telling us, it would be a category mistake to think that prurience or lasciviousness reflects a "viewpoint" that the government may not discriminate against. The terms instead identify a category or subject matter of expressive conduct that may be subject to some forms of government regulation….

Accordingly, excluding the entire category or subject matter of prurient live performances from a government subsidy program does not violate the Free Speech Clause. See Pharaohs GC v. U.S. SBA (2d Cir. 2021) (term "prurient" in SBA regulation describes subject matter, not viewpoint, for exclusion from Program); PMG Int'l Division L.L.C. v. Rumsfeld (9th Cir. 2002) (treating "lascivious" materials as articulating a "viewpoint" would "risk eviscerating altogether the line between content and viewpoint"); General Media Communications, Inc. v. Cohen (2d Cir. 1997) ("[H]ow, for example, would one go about discussing and considering the political issues of the day from a lascivious viewpoint?").

The court also rejected the district court's conclusion that the exclusion lacks a rational basis:

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Justice Clarence Thomas: 2021 Tocqueville Lecture, Transcribed

"I don't do a lot of hand wringing in my opinions and tell people 'Oh, I'm really sad.' That's not the role of a judge. I mean, you do your job and you go cry alone."


On Thursday, Justice Thomas delivered the 2021 Tocqueville Lecture at Notre Dame University. I've used Otter to transcribed the lecture here.

There are many gems during the lecture, and the Q&A session. Here I'll highlight one question about how he handles cases in which his legal views and policy views diverge. Thomas approaches the question with candor and grace.

Question: Has there been times in your career when the legal questions you must resolve conflict with your Catholic faith? If so, how do you proceed?

Justice Thomas: No, not really. I think if it did, if I think if it gets something conflict, that great. Where I fundamentally think it's wrong, I would just go and do something else. The I'm at a point, you know, I said that early on, and I still believe that, but I have lived up to my oath. There are some things that conflict very strongly with my personal opinion, my policy preferences. And those were very, very hard, particularly early on. But you don't I don't do a lot of hand wringing in my opinions and tell people 'Oh, I'm really sad.' That's not the role of a judge. I mean, you do your job and you go cry alone. But there have been some words. But there have been some that broke my heart. And that just were really, really high. And I've been there sometimes, particularly early, you sit with the more seasoned members of the court, and you explain to them what's wrong. And when I first became a judge in 1990. My colleague, Judge Silberman, Larry Silberman, sat down with me. And one of the things that's really interesting is no judge ever tells you how to do your job. The only people who tells you tell you how to do your job, or people who've never been judges. But anyway, he said to me, he said, I'm just going to give you a little bit of advice, unsolicited advice. Before you sit on a case, ask yourself this question, what is my role, in this case, as a judge, not as a citizen, not as us as a as a as a Catholic or any What is my role, in this case, as a judge? That is a hard one. Because if you stay in that lane, there are some things that you as a citizen, or you as a personal preference would want to come out a different way. And that's what I've tried to do the other thing, and then I'll be quiet about it. But I have four law clerks, four wonderful law clerks. And they're very, very bright like your students. And they watch you I tell them to watch me. And that's something my grandfather always told us watch me and do as I do not, as I say. So he didn't really mean that do as I don't do as I say, part I can tell you that. But the I tell my clerks that you watch me for a full year, and my job is that you leave here with a clean with clean hands, clean hearts and clear conscience. We will never do anything that's improper. And I encouraged them to tell me every clerk works on every case. So if you see something, your job is to let me know. And we sit and we talk about it. But in 30 years or 30 terms, we I don't think a single Clerk will ever tell you we have that anything other than our job.

Well said.

As We Creep Towards The Debt Ceiling, Will The Trillion Dollar Coin Return?

A constitutional throwback to 2013.


At some point in October, the federal government will reach the so-called "debt ceiling."  Back in 2013, the federal government faced a similar deadline. Several law professors urged the Obama Administration to mint a trillion dollar coin, which would–in theory at least–allow the government to continue borrowing money. Will the Biden Administration endorse this proposal if the ceiling is not lifted?

Legal Scholarship

The Most Cited Law Faculty, 2016-2020 (Updated)

A few Volokh Conspirators are among the most cited legal scholars in their fields.


Publication of the 2021 Sisk, et al., study of law faculty scholarly impact, Brian Leiter has been compiling lists of the most cited law faculty by subject areas for the period 2016-2020, as well as an overall list of the most cited law faculty.

Leiter's tabulations are based upon the same data as the Sisk study, which looked at citation counts in articles contained in the Westlaw journals database (as of June of this year) for the 2016-2020 period. Search results were checked for over-counting and rounded.

Here are the lists of most cited faculty by subject area. Note that one reason to list citation counts by subject area is that there is a tremendous disparity in citation counts across fields, reflecting a variety of factors (including what law review editors like to publish). I will update this list as additional subject areas are posted.

In addition to the above posts on Brian Leiter's Law School Reports blog, the Legal Planet environmental law blog has posted a list of the most cited Environmental and Energy Law scholars. Note that this list includes some folks (including myself) who work in multiple areas, which may affect citation counts.

Free Speech

Clearview AI, the First Amendment, and Facial Recognition


An interesting commentary by Clayton Kozinski (Lehotsky Keller LLP) on the lawsuit in which the Duke First Amendment Clinic, Jane Bambauer, and I filed an amicus brief (which unfortunately didn't persuade the judge); here's the opening:

The conversation about facial recognition technology typically centers around privacy. But an ongoing lawsuit in Illinois shows that it has just as much to do with free expression.

Clearview AI is the defendant in ACLU v. Clearview AI. It produces powerful facial recognition technology used by law enforcement across the country. Like all facial recognition software, Clearview's is powered by faceprints.

The Illinois Superior Court recently rejected Clearview's motion to dismiss argument that the Illinois Biometric Information Privacy Act (BIPA) impermissibly infringes its First Amendment rights. BIPA prohibits companies from collecting "faceprints" — geometric measurements of facial dimensions — without first obtaining individual consent….

Free Speech

Anti-Semitic/Anti-Israel Speech Outside Synagogue Constitutionally Protected


[One of the photos from plaintiffs' Complaint.]

From today's decision (which I think is quite correct) in Gerber v. Herskovitz, an opinion by Judge Jeffrey Sutton joined by Judge David McKeague:

Every Saturday morning since September 2003, [Anti-Israel] protesters have picketed the Beth Israel Synagogue [in Ann Arbor]. Their group typically comprises six to twelve people, and they display signs on the grassy sections by the sidewalk in front of the synagogue and across the street from it. The signs carry inflammatory messages, with statements such as "Resist Jewish Power," "Jewish Power Corrupts," "Stop Funding Israel," "End the Palestinian Holocaust," and "No More Holocaust Movies." The protests apparently target the members of the Beth Israel Congregation, as they coincide with the arrival of the congregants to their worship service on Saturday morning. The congregants and their children can see the signs as they enter their worship service. But the protesters have never prevented them from entering their house of worship, have never trespassed on synagogue property, and have never disrupted their services….

The court concluded that the plaintiffs had standing to sue over the emotional distress that this speech caused them (the district court had concluded the contrary); but on the merits, the court held against the plaintiffs:

The protesters' actions come squarely within First Amendment protections of public discourse in public fora. As in Snyder v. Phelps, the content and form of the protests demonstrate that they concern public matters: American-Israeli relations. As in Snyder, the protest location is a quintessential public forum: public sidewalks. The context of being outside a house of worship at the time of a service cuts slightly towards being a private attack, but that factor alone was not heavy enough to tip the balance in Snyder, and it is likewise too feathery here.

The congregants claim that the First Amendment does not apply to the unique features of this protest. Five considerations, they say, make this case novel: (1) the protests' proximity to a house of worship, (2) their location in a residential area, (3) the fact that the congregants are a captive audience, (4) the frequency of the protests, and (5) the exposure of congregants' children to the signs. But each of these factors is old hat under the First Amendment.

Take the first three. Courts have allowed speech restrictions based on concerns for a captive audience in a deliberately narrow context, and we see no justification for expanding it here. Snyder insisted on the concept's narrowness, applying it only to an individual's residence and declining to extend it to a church holding a funeral. Our sister circuits have likewise declined to allow restrictions on protesting near houses of worship, rejecting justifications like those the congregants offer. Expressive activity in a residential area by itself does not suffice for an exception; an individual's home itself must be the focus of the protest. Frisby v. Schultz.

The congregants' fourth and fifth factors fall readily as well. The protesters' actions do not lose constitutional protection just because they have been protesting for a long period of time. Free-speech protections do not expire over time or come with a rule against perpetuities. And the Supreme Court has repeatedly held that an interest in protecting children does not justify censoring speech addressed to adults. Reno v. ACLU.

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National Law Journal Provides More Background on Luttig's Second Amendment Brief

Judge Luttig, as well as Carter Phillips, were affected by gun violence.


On Monday, I wrote about the amicus brief that Judge Luttig, Carter Phillips, and others filed in the New York Second Amendment case. The National Law Journal provides more background on the brief. Marcia Coyle reports that Judge Luttig, as well as Carter Phillips, were affected by gun violence:

One of the 17 is veteran Supreme Court advocate and Sidley Austin partner Carter Phillips. Bernstein and Temple are former Sidley partners, he said, and they reached out to him to see if he'd be interested in joining the brief.

"But my part of the story is personal," Phillips said. "I have had strong anti-gun views ever since one of my co-clerks with Chief Justice [Warren] Burger, Chris Walsh, had one of his best friends shot and killed on the same day the Chief was having his reunion. I saw what that tragedy did not only to Chris's friend's family but also what it did to Chris and his family. I have been strongly in favor of regulating gun use ever since. After reading the brief, it was easy to join."

Also on the brief is former Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit. Gun violence touched his family in 1994 when his father, John Luttig, was fatally shot in a carjacking.

The implication here is that their legal views on the Second Amendment were affected by their personal experiences. On balance, I think Philips's interview reduces the effectiveness of the brief.