Georgetown political philosopher Peter Jaworski makes the case for paying blood plasma donors. The same arguments also justify paying organ donors and participants in vaccine "challenge trials."
In a recent report co-published by the Adam Smith Institute, the Niskanen Center, and the Australian Taxpayers Alliance, Georgetown political philosopher Peter Jaworski argues that nations that currently ban paying blood plasma donors—including Canada, the UK, and Australia—should legalize it. As he puts it in the title of the report: "Just Bloody Well Pay Them." Here is a summary of his report, posted at the Niskanen Center website:
There are significant global shortages of blood plasma used to make plasma therapies. Demand is growing at a rate of 6-10% per year. Three-quarters of people do not have access to the appropriate plasma therapy, largely outside of developed countries.
Shortages are significantly exacerbated by the World Health Organisation's policy — adopted by the United Kingdom, Australia, New Zealand and some Canadian provinces — to rely exclusively on Voluntary Non-Remunerated Blood Donations (VNRBD).
The United Kingdom currently imports all (100%) of its supply of plasma therapies, Canada four-fifths (84%), Australia half (52%), and New Zealand one-tenth (13%). These countries are too increasingly dependent on imports of plasma therapies from countries that remunerate donors such as the United States and Germany. This inflates the global blood plasma price, making it unaffordable for low to middle income countries.
5% of the world's population is responsible for more than half of all the plasma collected in the world.
In order to ensure a safe, secure, and sufficient supply of plasma therapies, the United Kingdom, Canada, Australia, and New Zealand should adopt Voluntary Remunerated Plasma Collections (VRPC).
As Jaworski explains, the US currently does allow payments to donors, and thereby provides a high percentage of the world's total supply of blood plasma. But shortages persist because so many other countries forbid it.
Jaworski provides excellent responses to a variety of standard arguments against paying donors, such as that it might lead to "exploitation" of the poor, or to "crowding out" of unpaid donations.
I criticized the "exploitation" and "commodification" arguments in the challenge trial context here, and in the organ transplant context here and here. I would add that legalizing these practices would also expand human freedom, and should be attractive to anyone who believes in the principle of "my body, my choice," and takes its implications seriously.
Last year, the Trump administration eased regulations restricting restricting the compensation of kidney donors for the expenses they incur as part of the donation process. This is an important step in the right direction. But much more can be achieved by also legalizing payments that go beyond simply compensating people for expenses. In most other cases, we don't expect to adequately meet the demand for any good or service simply by paying producers for some of the expenses they incur. We recognize that they also need to be able to make a profit—as in fact is allowed for every other participant in the kidney transplant process, including doctors, nurses, producers of medical supplies, and so on.
Allowing payment of organ donors, plasma donors, and participants in vaccine challenge trials is a great way to simultaneously save lives and expand human freedom. At this painful moment in history, it could also help put an early end to the coronavirus crisis, thereby limiting the enormous economic and social damage it causes.
To be included in debates hosted by the Commission on Presidential Debates, a candidate must poll at 15% nationally, a threshold that no third party has satisfied in nearly two decades. A violation of federal election law? D.C. Circuit: The law requires only that the standards for inclusion be objective, and a 15% threshold is surely that, even if it is difficult for third parties to satisfy.
Allegation: Major chocolate companies Nestlé, Mars, and Hershey fail to disclose on the packaging of their chocolates that their cocoa supply chains rely on child slavery. That violates the Massachusetts Consumer Protection Act. First Circuit: No, it doesn't, but you should definitely feel guilty about buying chocolate, the production of which really does rely on child slavery.
Suspecting a Massachusetts woman of illegal firearms sales, the ATF—without a warrant—installs a camera on a utility pole outside her home, allowing it to monitor the home 24-7 from May 2017 to January 2018. Based in part on evidence gathered by this camera, the woman, her husband, and her mother are charged with drug trafficking. First Circuit: And under circuit precedent, the continuous monitoring of someone's house in this fashion is perfectly fine. Concurrence: We should really revisit that precedent. "For most of our nation's history, the most vigilant voyeur could not replicate this kind of surveillance of the concededly observable but often intimate daily activities of life that occur so close to home."
Kemah, Tex. police respond to reports that man is threatening to jump to his death from a bridge. They remove him, arrest him for public intoxication. Though he is agitated and yelling that he should have jumped, no one takes the blanket he'd been given at booking. He uses it to hang himself. Fifth Circuit: If the facts are as plaintiffs allege, the cops violated the Fourteenth Amendment by failing to remove the blanket when they knew the man was at significant risk of suicide. No qualified immunity.
Euclid, Ohio police use-of-force training materials include a few humorous asides, such as a cartoon of an officer striking a civilian with the caption "protecting and serving the poop out of you" and a link to a comedy sketch titled "How not to get your ass kicked by the police!" Might these demonstrate indifference to the use of force? Sixth Circuit: Indeed, they might. So a motorist who was tased and pepper sprayed despite his attempts to comply with Euclid officers' commands can take his claims against not only the officers but also the municipality to a jury.
Hanging a tree-shaped air freshener from your rearview mirror gives the Chicago Police Department license to pull you over, the Seventh Circuit affirms. And woe betide if you have a felony conviction and happen to be driving with a rifle and two handguns.
Arizona man books flight on Southwest Airlines from Phoenix to Chicago. Uh oh! Southwest ran out of de-icing fluid in Chicago, leading to the cancelation of hundreds of flights out of and into Midway Airport. As a result, Arizona man books a flight to Omaha, rents overnight lodging, and proceeds to Chicago the next day. Can he recover damages for breach of contract? Seventh Circuit: No, because there was no breach; Southwest is allowed to cancel flights as long as it provides rescheduled flights. Concurrence: Technically, there was a breach, but the airline provided the remedies required by the contract, so it's the same result.
Investigating allegation that teenage boy molested four of his younger sisters, Arkansas police question the girls, promise them that their answers will remain confidential (as required by state law). Nearly nine years later, police release to the tabloids a redacted report with full descriptions of the interviews. Allegation: The girls are "obviously identifiable" and experienced public backlash, mental anguish. Eighth Circuit (panel): Might be a violation of the girls' informational privacy rights under the Fourteenth Amendment. No qualified immunity. Eighth Circuit (en banc): The right isn't clearly established (and may not exist at all). Qualified immunity.
In 2019, Arkansas erected an unusually high barrier for new political parties to get on the ballot. Simplifying slightly, they need to garner around 27,000 votes, all during a rolling 90-day window, and submit their petition at least 425 days before the general election. Eighth Circuit: The Libertarian Party of Arkansas is likely to succeed in its challenge, and the district court did not err in entering a preliminary injunction lowering the signature threshold to 10,000, the number required under prior law. (After his recent contretemps with the Eleventh Circuit, the ghost of Anthony J. Celebrezze Jr. was reportedly pleased to see his surname spelled correctly in the Eighth.)
"America's most spectacular fossil," two dinosaurs who died fighting each other and remain intertwined 66 million years later, is discovered on Montana ranch. Does it belong to the ranchers or to investors who own the mineral rights? Ninth Circuit (2018): The investors. Fossils are mineral under state law. Ninth Circuit (2020, en banc): The Montana Supreme Court says otherwise; the fossils instead belong to the ranchers.
IRS notifies two medical marijuana dispensaries that they cannot take deductions because they traffic in controlled substances, and thus they severely underpaid their taxes. They wish to challenge this. Their attorney sends appeal documents the day before they're due via "FedEx First Overnight," but they arrive a day late due to FedEx error. Close enough? Ninth Circuit: Though the IRS allows for the later delivery of documents delivered by "FedEx Standard Overnight" and "FedEx Priority Overnight," they hadn't yet approved "FedEx First Overnight." (It's added to the approved list two weeks later.) Case dismissed.
In 2015, head of Denver jail, and second vice president of the National Fraternal Order of Police, is fired for giving preferential treatment to officer accused of domestic violence and then lying about it. Officer: The firing was retaliation for my union activities, including opposing a city proposal to "scale back the authority [of jail officers] to use force." Tenth Circuit: You already litigated that in state court. No trying again in federal court. (Separately, the officer also recently pled guilty to embezzling $50k from a charity assisting refugees.)
Darien, Ga. police officer pulls over African American couple, claims they had an obstructed license plate, and arrests them for possessing marijuana. (The drug charges are dismissed, and the officer later resigns after his history of using racial slurs comes to light.) Couple sues. Eleventh Circuit: "Racism in policing is a particularly brutal facet of our country's mistreatment of Black people." But the couple's lawyer sued under 42 U.S.C. § 1981, not the more appropriate 42 U.S.C. § 1983. And even if he had gotten the statute right, the couple would still lose.
In response to COVID-19, Louisiana and Illinois governors limit public assemblies to 10 people. Louisiana and Illinois churches: Which violates the Free Exercise Clause. Fifth Circuit: Louisiana's stay-at-home order has expired. The suit is moot. (Concurrence: Though I am concerned about the First Amendment implications of exempting protesters but not worshippers.) Seventh Circuit: Illinois' stay-at-home order has expired. But the case is not moot as the order could be reimposed at any time. Nevertheless, it is constitutional; theaters and concert halls are closed, so if anything, Illinois is discriminating in favor of religion by allowing small services.
And in further pandemic news, the Eleventh Circuit (over a dissent) has ruled that Miami jail officials' response to the pandemic has not been "utter recklessness," so a district court's injunction requiring officials to take numerous steps to protect medically vulnerable pretrial detainees is vacated.
In 2009, a windstorm knocked a tree down on Sarah Hohenberg's Memphis, Tenn. home, and her insurance company refused to pay to repair the structure. Sarah sued the insurance company, but while that was pending, her neighbors—unhappy with the pace of repairs—sued Sarah in Shelby County Environmental Court, an inaptly named court that allows private suits over housing code violations. Outrageously, even though the court has the authority to put people in jail and seize homes, it does not follow any normal rules of procedure; it doesn't record proceedings or authenticate evidence. It doesn't even keep track of most court files. And the court ruined Sarah's life. After she declined to sign over the deed to her home, the court ordered her jailed and she fled the state because she worried that, given the fragile state of her health, an arrest would kill her. The case forced her into bankruptcy, and she is currently homeless. This week, Sarah joined with IJ to force Shelby County to respect the due process rights of defendants in its Environmental Court. Click here for more.
There have been a series of recent incidents in which individuals who offended one or more members of the far left have been "canceled," i.e., social media mobs have attacked them until they lost their livelihoods. On a scale of egregiousness, let's say it ranges from James Bennett of the New York Times, forced to resign for publishing a controversial op-ed by a U.S. Senator, as a "1" to Emmanuel Cafferty, a Mexican-American blue collar worker who lost his "dream job" after a Twitter witch-hunter falsely accused him of flashing a white power gesture at a BLM rally, as a "10."
I suspect the vast majority of us, on all points of the political spectrum, don't want to live in a society where Twitter Stasi are constantly looking for wrongthink to report to one's employer; and in the long-run, cancel culture is bound to move from private channels to the government. So the following paragraphs with which I concluded my 2003 book, You Can't Say That! were not exactly about "cancel culture" which wasn't a thing then, but are close enough to be quite relevant:
Finally, if civil liberties are to be preserved Americans will need to both develop thicker skin, and to expect other to be reasonably thick-skinned. A society that has a legal system that expects such thick skin is likely to get it. On the other hand, if the legal system gives people a legal remedy for insult, they are more likely to feel insulted. This is true for two reasons. First, as economists point out, if you subsidize something, you get more of it. If the legal remedies of antidiscrimination law, particularly monetary remedies, subsidize feelings of outrage and insult, we will get more feelings of outrage and insult, a net social loss. Economists have also noted the psychological endowment effect: once people are endowed with a right, they lose far more utility once that right is interfered with than if it had never been granted at all.
Unfortunately, Americans increasingly increasingly coddle and even reward the hypersensitive, perversely encouraging more people to be hypersensitive. In one notorious incident, a Washington, D.C. official, was forced to resign for using the word "niggardly" at a meeting because the word sounded like a racial epithet, even though it is not (it's a synonym, of Scandinavian origin, for "miserly"). It should hardly be surprising, then, that people are suing and winning damages when offended at work, when excluded by a private club or turned down as a roommate, or for being fired from a church-run school after refusing to obey church doctrine.
Yet preserving liberalism, and the civil liberties that go with it, requires a certain level of virtue by the citizenry. Among those necessary virtues is tolerance of those who intentionally or unintentionally offend, and sometimes, when civil liberties are implicated, who blatantly discriminate. A society that puts equality—in terms of the enforcement of draconian enforcement of antidiscrimination laws to alleviate every slight—ahead of civil liberties will end up with neither equality nor civil liberties. The violation of civil liberties to achieve equality will eat away at all constitutional restraints on the government, and the additional power garnered by the government, introduced for good purposes, will end up in the hands of people who use it to promote their own interests. In these days of the Oprahization of public discourse, with even presidential candidates swearing that they feel the public's pain, asking for a measure of fortitude in the face of offense and discrimination is asking a lot. Yet, in the end, it is a small price to pay for preserving civil liberties.
Yesterday, I posted my high-level analysis of DHS v. Regents of California, the DACA case. This lengthy post will dive deeper into the weeds. I'll presume familiarity with the facts of the case, the history of the litigation, and knowledge of basic APA doctrine.
Chief Justice Roberts's analysis has eight major parts.
First, Roberts held that the DACA rescission is subject to judicial review. This conclusion is significant. In 2016, the Obama administration argued that DAPA itself was not subject to review because DAPA was a general non-enforcement policy. And in 2020, the Trump administration argued that the DACA rescission was not subject to review, because the rescission was also a general non-enforcement policy. (Republican and Democratic agencies agree on little but non-reviewability). But Roberts rejects both positions. He argues that DACA "is not simply a non-enforcement policy." Why? Critically, the policy confers benefits:
The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. Unlike an agency's refusal to take requested enforcement action, access to these types of benefits is an interest "courts often are called upon to protect." Chaney. Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA.
Defenders of DACA have long argued that the policy is merely an act of prioritization: certain people are de-prioritized for removal. Chief Justice Roberts has killed that argument. As a result, Texas's long-pending challenge to DACA has now cleared the reviewability hurdle. That case can proceed to the merits. These holdings were small concessions for the Court's four liberals to pay for a favorable judgment.
Second, Chief Justice Roberts limited his review to the Duke memorandum, and disregards the Nielsen memorandum. I think this analysis is correct. The Nielsen memo added additional justifications that were not in the agency action. Roberts write:
The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fixes, the superiority of case-by-case decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us.
Judge Bates put the administration in a tough bind. They did the best they could.
Third, Roberts finds that the rescission is arbitrary and capricious. But he expressly rejects the approaches of three courts of appeals. These courts held that the Secretary was wrong to rely on the Fifth Circuit's decision, because the Fifth Circuit was wrong. For example, the Ninth Circuit held that the Fifth Circuit erred in Texas v. U.S. Therefore, the Secretary's analysis was arbitrary and capricious:
DACA is being implemented in a manner that reflects discretionary, case-by-case review, and at least one of the Fifth Circuit's key rationales in striking down DAPA is inapplicable with respect to DACA. With respect for our sister circuit, we find the analysis that seemingly compelled the result in Texas entirely inapposite. And because the Acting Secretary was therefore incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside. Chenery I, 318 U.S. at 94.
But Chief Justice Roberts did not adopt this approach. He did not disagree with the Fifth Circuit's decision. He could have. That holding would have made this case much easier. To the contrary, he recited the Fifth Circuit's analysis without any criticism whatsoever.
Does this recitation suggest Roberts agrees with Judges Smith and Elrod? Possibly. Roberts explains that Secretary Duke was "bound by the Attorney General's legal determination" concerning Texas v. U.S. He added, "Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General." Even if the Attorney General relied on an erroneous precedent, the DHS Secretary could not have disagreed. But I am inclined to believe that Roberts endorsed the Fifth Circuit's rationale. I'll explain why in the next part.
The AP reports, following up on earlier stories (CNN, N.Y. Post, Independent [UK]) that reported the nooses were being investigated as hate crimes:
Oakland's mayor said five ropes found hanging from trees in a city park are nooses and racially-charged symbols of terror but a resident said they are merely exercise equipment that he put up there months ago….
The Police Department provided five photographs of trees, some of which showed knotted ropes and one that appeared to have a piece of plastic pipe attached to a rope, hanging from tree limbs.
Victor Sengbe, who is black, told KGO-TV that the ropes were part of a rigging that he and his friends used as part of a larger swing system. He also shared video of the swing in use.
"Out of the dozen and hundreds and thousands of people that walked by, no one has thought that it looked anywhere close to a noose. Folks have used it for exercise. It was really a fun addition to the park that we tried to create," Sengbe said.
"It's unfortunate that a genuine gesture of just wanting to have a good time got misinterpreted into something so heinous," he told the station….
Police said several community members came forward during their initial investigation to say the ropes were used for exercise and a man came forward to say he put them up several months ago….
I appreciate that the city might not want anything hanging off the trees that's offputting to some park users (the trees aren't a public forum opened for public use)—or for that matter that might cause physical injury. But it's a reminder that things aren't always as they may seem to some.
Note also that one common argument for why hate crimes (e.g., a racially-motivated assault) should lead to greater punishment is that such a crime "is no ordinary crime because it transcends its immediate victims and strikes fear and terror into entire communities," in the words of now-Senator Charles Shumer. That suggests that, if there's an ambiguous incident, it may be better for government officials and the media to resist labeling it a hate crime until some more investigation takes place, since false reports can "strike[] fear and terror" as much as accurate ones can. (I'm certainly not saying there should be any prohibition on such premature labeling, just a preference to avoid prematurely publicly assuming the worst.)
Thanks to Ed Driscoll at InstaPundit for the pointer.
Yesterday I flagged a Corona-related decision by Judge Easterbrook. He upheld a lockdown on a house of worship, even as governments allow protestors to mass in the thousands. Today, the Fifth Circuit decided another Corona-related decision from Louisiana. This case became moot, because the relevant order expired. Judge Jim Ho wrote a four page concurrence, highlighting this inconsistency. It begins:
At the outset of the pandemic, public officials declared that the only way to prevent the spread of the virus was for everyone to stay home and away from each other. They ordered citizens to cease all public activities to the maximum possible extent—even the right to assemble to worship or to protest.
But circumstances have changed. In recent weeks, officials have not only tolerated protests—they have encouraged them as necessary and important expressions of outrage over abuses of government power.
For people of faith demoralized by coercive shutdown policies, that raises a question: If officials are now exempting protesters, how can they justify continuing to restrict worshippers? The answer is that they can't. Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are "open" and which remain "closed."
Judge Ho questions how protests are exempt, but not worship services:
If protests are exempt from social distancing requirements, then worship must be too. As the United States recently observed, "California's political leaders have expressed support for such peaceful protests and, from all appearances, have not required them to adhere to the now operative 100-person limit. . . . [I]t could raise First Amendment concerns if California were to hold other protests . . . to a different standard." Brief for the United States as Amicus Curiae at 24, Givens v. Newsom, No. 20-15949 (9th Cir. June 10, 2020). The same principle should apply to people of faith. See, e.g., Lukumi, 508 U.S. at 537 ("[Where] individualized exemptions from a general requirement are available, the government may not refuse to extend that system to cases of religious hardship without compelling reason.") (quotations omitted).
Finally, Judge Ho also heavily criticizes Employment Division v. Smith:
Smith has been derided by "[c]ivil rights leaders and scholars . . . as 'the Dred Scott of First Amendment law,'" criticized by "[a]t least ten members of the Supreme Court," and "widely panned as contrary to the Free Exercise Clause and our Founders' belief in religion as a cornerstone of civil society." Horvath, 946 F.3d at 794–95 (Ho, J., concurring in the judgment in part and dissenting in part) (quoting other sources). Smith is troubling because it is of "little solace to the person of faith that a non-believer might be equally inconvenienced." Id. at 796. "For it is the person of faith whose faith is uniquely burdened—the non-believer, by definition, suffers no such crisis of conscience. This recalls Anatole France's mordant remark about 'the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread.'" Id. (quoting ANATOLE FRANCE, THE RED LILY 87 (1910)).
Soon, I expect Judge Easterbrook's decision to be appealed to the Supreme Court. And Chief Justice will find a way to justify the differential treatment.
In 1975, the federal government convened an interagency committee to "(1) coordinate development of common definitions for racial and ethnic groups; (2) instruct the Federal agencies to collect racial and ethnic enrollment and other educational data on a compatible and nonduplicative basis." Although the report that spurred the existence of the committee had focused on the lack of uniform definitions of Chicanos, Puerto Ricans, and American Indians, the committee decided that it would make recommendations for racial and ethnic categorizations for the entire American population.
The groups and definitions recommended by the committee form the basis for the groups and definitions we still use today, with one major exception. Here is the committee's recommendation and explanation for the definition of a person in Caucasian/White category:
A person having origins in any of the original peoples of Europe, North Africa, the Middle East, or the Indian subcontinent. The major problem associated with this category, as with the "Asian.. –" category (above) was how to deal with persons from the Indian subcontinent. The question at issue was whether to include them in the minority category "Asian…" because they come from Asia and some are victims of discrimination in this country, or to include them in this category because they are Caucasians, though frequently of darker skin than other Caucasians. The final decision favored the latter. While evidence of discrimination against Asian Indians exists, it appears to be concentrated in specific geographical and occupational areas. Such persons can be identified in these areas through the use of a subcategory for their ethnic subgroup.
A Indian-American newspaper described what happened next:
In January 1976 … board members of the Association of Indians in America (AIA) and their legal counsel met with the Federal Interagency Committee's representatives in Washington D.C. with the purpose of effecting a change in the Indian classification from the "White" category into the "Asian or Pacific Islander" category. Dr. Manoranjan Dutta, president of the AIA, said that his organization began its campaign for the reclassification in the wake of numerous complaints by Indians of alleged discrimination. According to Dr. Dutta, Indians were not getting equal opportunity in jobs, for example, and any discrimination which they faced was being covered up under the guise of their "White" classification—a sort of "hidden" discrimination. Only if they were classified in the "correct" category of "Asian" could they seek immediate legal redress in cases of discrimination. Furthermore, the Asian category appeared to be more appropriate due to geographical reasons—India is a part of Asia.
In August 1976, a review of the five categories was indeed made, and the Federal Interagency Committee agreed by consensus to move the Indian immigrants from the "White" category to the "Asian and Pacific Islander" category… Dr. Dutta announced later in November of 1976 the finalization of the classification change to the Indian media, but it tended to be largely ignored by the American press.
Interestingly, "another group of Indians, who disagreed with this change, and who preferred that Indians be classified as 'White' in this context, later approached Hall's office to lobby for a return to the 'status quo,' but the effort was in vain, as the group had no data to back up their cause."
The final rule, promulgated by the Office of Management and Budget, did place Indians in the "Asian" category, where they have remained ever since.
The reason that they were put in the white category to begin with has been lost to history, beyond what the report quoted above said. I suspect that part of the issue was that the category used previously for "Asian" was "Oriental," by which people typically meant those from East Asia. Given that the largest relevant groups in the U.S. by far were Chinese, Japanese, and Filipinos, with very few Indians in the U.S. at the time, the committee was likely still used to separating East Asian "Orientals" from others.
In any event, that's how Asian Indians, who had been deemed non-white by the Supreme Court in the days of the Asian Exclusion Act in the 1920s, almost became white in the 1970s.
For what it's worth, it's long been known that the initial committee report placed Indians in the white category and it was then changed to Asian, but I believe I'm the first one to dig up an account of what happened in the interim.
I dubbed June 15, 2020 "Blue Monday." Conservatives went 0-4, losing on guns, immigration, the death penalty, and Title VII. I previously associated June 15 with Magna Carta day, an important day on the calendar for the rule of law. Now, another sentiment occupies that day.
Blue Monday has now turned into Blue Week, with a loss in the DACA case. Conservatives are 0-5. How did President Trump respond? With a promise for another Supreme Court list!
…Based on decisions being rendered now, this list is more important than ever before (Second Amendment, Right to Life, Religous Liberty, etc.) – VOTE 2020!
Those sorts of promises are no longer meaningful. And more importantly, they will no longer appeal to donors. I think the latter fact will quickly modify the former strategy.
Alas, I suspect that Blue Week will turn into Blue June. I previously made predictions for assignments. Let me update my predictions.
January Sitting
There were eight cases argued during the January sitting. Only one is outstanding: Espinoza. Chief Justice Roberts and Justice Breyer have not yet written for that sitting. I don't think either Justice is willing to write an opinion that declares Blaine Amendments unconstitutional nationwide. Certainly stare decisis on the Kagan Court requires standing by the longstanding Blaine Amendments. I view either assignment as a defeat for conservatives: either Roberts or Breyer writes a baby-splitting decision that leaves no one happy. I'm not sure what the middle-ground is here, but they'll think of something.
February Sitting
There were nine cases argued during the February sitting. Four are outstanding: Thuraissigiam, Seila Law, Liu, and June Medical. Roberts, Breyer, Alito, Sotomayor have not yet written.
Justice Sotomayor will write Liu v. SEC, an unremarkable criminal law case. And Roberts will assign Thuraissigiam to Justice Alito. I'm sure Roberts is content to narrow the scope of the Suspension Clause, especially in light of his Guantanamo decisions.
The Chief will assign Seila to Justice Breyer, who upholds the CFPB in its entirety. That agency is far too important to cripple before an election. Vice Presidential candidate Warren would love that sort of ruling to run on! And this decision avoids the need to clarify severability doctrine. Muddled doctrine is ideal in John Roberts's multiverse of madness. Meanwhile, here on Planet Earth, courts and lawyers suffer from this lack of clarity. Justice Kavanaugh dissents, and, as he did in the D.C. Circuit, rules that the Court can simply sever the for-cause removal provision. Gorsuch and Alito find that the for-cause provision is not severable and the entire agency is invalid. Justice Thomas argues that severability doctrine violates Article III, and the remedy should be limited to the Plaintiffs' injuries.
Finally, the Chief Justice will write June Medical. My prediction: he concludes the Fifth Circuit disregarded binding precedent in Whole Woman's Health. June will be blue.
If I am right, the only ostensible conservative victory would be Thuraissigiam, which frankly, no one outside the immigration bar will care about beyond.
I'll hold off on making predictions for the remaining 10 cases argued in May. We probably won't see any decisions for those cases in the next two weeks. Will there also be a Blue July? Probably.
I have been writing about DACA since I began teaching in 2012. For nearly eight years, I have had to explain a single fact over and over and over again: the deferred action policies were unlawful because they conferred federal benefits; not because they deferred deportations. Early on in the DAPA litigation, Texas conceded that DHS could issue "do not deport" cards. Texas's objection concerned the fact that DACA, and later DAPA, allowed the federal government to grant a host of federal benefits, such as work authorization.
Yet, this simple fact has always been ignored–with good reason. It is far more powerful to raise the specter of deporting Dreamers, then merely taking away their work authorization. Most Dreamers were never a priority for removal. As we are often reminded, the federal government can only deport about 400,000 a year. DACA was always about granting the Dreamers work authorization.
Over the past five years, I have filed several briefs on behalf of the Cato Institute drawing this distinction: DHS had the authority to defer the deportations, but not to grant the benefits. (See pp. 18-21 of our Supreme Court brief). And this argument has consistently fallen on deaf ears.
Now, the most unlikely candidate has breathed life into our position: Chief Justice Roberts. He recognized that the benefits element of DACA was separate from forbearance of removal. And he did not agree with the 2nd, 9th, and D.C. Circuits that the conferral of these benefits was lawful. Instead, he seemed to agree with the 5th Circuit that the conferral of benefits was unlawful. (More on that point later).
But then we get the John Roberts special: because the forbearance of removal provision was permissible, the Secretary acted arbitrarily and capriciously for rescinding the entire DACA policy. In effect, Roberts applied a severability analysis: the unlawful portion of DACA (conferral of benefits) should have been severed from the permissible portion (forbearance). And because the Secretary did not sever the DACA memo appropriately, the entire rescission was unlawful. (If this sort of analysis is applied to the ACA case, Congress's failure to properly repeal the individual mandate would render all of Obamacare unconstitutional–mostly joking.)
The Chief's standard exceeds even the strictest scrutiny I have seen in equal protection cases. Every government gets some degree of latitude, even when dealing with fundamental or enumerated rights. But the failure to adopt the precise legal analysis Chief Justice Roberts adopted, which had been heretofore unknown, renders the policy arbitrary and capricious. We saw a similar mode of analysis last year in the Census case. But here, the A&C standard was upgraded to an electron microscope–a single molecule out of place, and the Chief orders a remand.
I will write a subsequent post that analyzes these points in some detail. But this post should provide a high-level overview of my thoughts.
A very detailed and thoughtful item by Profs. Jack Goldsmith & Marty Lederman at Just Security; it's a factually and legally complicated area, which I don't know enough about, but on which they are experts. An excerpt from the opening:
The U.S. government filed a civil suit on June 17 against former National Security Advisor John Bolton. It primarily seeks (i) an injunction against the planned June 23 publication of Bolton's book, The Room Where it Happened: A White House Memoir; and (ii) a "constructive trust" that would give the United States the right to all of Bolton's profits from the book. The case has been assigned to Judge Royce Lamberth of the U.S. District Court for the District of Columbia.
This post explains the case and offers our initial thoughts. The big news to us about the government's case is that it's weaker than we expected. We should emphasize, however, that these views are preliminary and incomplete. The case implicates a complex and in some ways unsettled area of law. [UPDATE: Less than an hour after we published this post, the government filed a motion for Judge Lamberth to issue a Temporary Restraining Order–one that would prohibit not only Bolton himself, but also Simon & Schuster and "[c]ommercial resellers further down the distribution chain, such as booksellers," from selling or distributing The Room Where it Happened. The classified and unclassified declarations filed with that motion might (or might not) affect the outcome of the case. We hope to discuss this important development in a follow-up post soon.]
The Relevant Contract (Nondisclosure Agreement) Terms
The most important thing to understand about the case is that the government is suing Bolton for a breach of contract—two contracts, in fact. As the government's complaint describes, the contracts in question are "nondisclosure agreements" (NDAs) that Bolton signed on April 5, 2018, when he entered government service as National Security Advisor. These NDAs are included as attachments to the complaint….
The first NDA, Standard Form 312, contains obligations Bolton assumed as a condition of obtaining access to classified information generally, i.e., a "security clearance." Two are pertinent here. First, Bolton agreed that he must never "divulge classified information to anyone" unless he either "officially verifies] that the recipient has been properly authorized by the United States Government to receive it" or he's received "prior written notice of authorization [to divulge it] from the United States Government" entity responsible for its classification. Second, he agreed that if he's "uncertain about the classification status" of any information, he must "confirm from an authorized official that the information is unclassified before [he] may disclose it" to anyone not authorized to receive it. We'll refer to this second obligation as the SF-312 prepublication review requirement, although, as we explain below, it's actually something less than that—it's more like a simple "confirmation" requirement.
The second NDA, Standard Form 4414, set the conditions of Bolton's access to a more sensitive subset of "Special Access Programs" classified information, commonly known as Sensitive Compartmented Information (SCI). It requires Bolton to submit to a security review by the National Security Council (NSC) "any writing . . . that contains or purports to contain any SCI or description of activities that produce or relate to SCI or that I have reason to believe are derived from SCI, that I contemplate disclosing to any person not authorized to have access to SCI or that I have prepared for public disclosure." It further provides that he "will not disclose the contents of such preparation with, or show it to, anyone who is not authorized to have access to SCI until I have received written authorization from the Department or Agency that last authorized my access to SCI that such disclosure is permitted." We'll call this the SF-4414 prepublication review requirement….
The decision is only a temporary reprieve for DACA recipients, and still permits Trump or a future president to repeal the program if he is willing to pay the political price of doing so.
Today's Supreme Court ruling is a victory for DACA recipients, but a very limited one. The Supreme Court correctly concluded that the Trump administration's shoddy rationale for rescinding DACA violated the Administrative Procedure Act because it failed to offer any justification for repealing the central element of the DACA program: forbearance on deportation of undocumented immigrants who were brought to the United States as children. But Trump or a future president could still rescind DACA if they are willing to offer such a justification in the future and pay the political price of doing so. For that reason, I strongly agree with co-blogger Jonathan Adler's view that this is a very narrow decision.
Today's ruling does not definitively end either the legal or the political battle over DACA. Ultimately, only Congress can do that, by finally passing a law definitively protecting "Dreamers" from deportation and giving them permanent resident status in the United States. Until then, they will not be fully safe.
The Court's decision addresses the legality of the Trump administration's decision to rescind DACA, an Obama administration policy suspending deportation of some 800,000 undocumented immigrants who came to the United States as children. DACA allows such migrants (often referred to as "Dreamers," after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces. In addition to suspending deportation, the program also allows DACA recipients to obtain authorization for work in the US and accrue "lawful presence."
The majority opinion by Chief Justice John Roberts concludes that the administration's rescission of DACA was illegal, because it violated the Administrative Procedure Act's requirement that federal agency decisions may not be "arbitrary and capricious." As Roberts recognizes, this is a very permissive standard. But, in this case, the Department of Homeland Security fell short of it because its rationale for ending DACA relied on the notion that the program's work authorization and law presence provisions are illegal, while failing to offer any justification for abolishing its central feature—"forbearance" from deportation:
In short, the Attorney General [in his opinion on the legality of DACA] neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for "[e]stablishing national immigration enforcement policies and priorities." 116 Stat. 2178, 6 U. S. C. §202(5). But Duke's memo offers no reason for terminating forbearance. She instead treated the Attorney General's conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation….
Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only "disallow[ing]" benefits…. It did "not cast doubt" on the legality of forbearance or upon DHS's original reasons for extending forbearance to childhood arrivals….Thus, given DHS's earlier judgment that forbearance is "especially justified" for "productive young people" who were brought here as children and "know only this country as home," App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full "without any consideration whatsoever" of a forbearance-only policy,
If anything qualifies as "arbitrary and capricious," it is failure to provide a rationale for repealing the policy "at the heart" of the program the administration wanted to rescind.
The Department of Homeland Security did offer some policy rationales for rescinding forbearance on deportation in a memorandum issued many months after its initial decision to rescind. However, the Court concludes that the APA requires the agency to put forward its reasons at the time a policy change is made. Thus, the arguments in the later DHS memorandum "can be viewed only as impermissible post hoc rationalizations and thus are not properly before us."
The requirement of a contemporaneous explanation may seem like arbitrary formalism. But the Court points out some good reasons for it:
Requiring a new decision before considering new reasons promotes "agency accountability," Bowen v. American Hospital Assn., 476 U. S. 610, 643 (1986), by ensuring that parties and the public can respond fully and in a timely manner to an agency's exercise of authority. Considering only contemporaneous explanations for agency action also instills confidence that the reasons given are not simply "convenient litigating position[s]." Christopher v. Smith Kline Beecham Corp., 567 U. S. 142, 155 (2012)…. Permitting agencies to invoke belated justifications, on the other hand, can upset "the orderly functioning of the process of review," SEC v. Chenery Corp., 318 U. S. 80, 94 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after [Acting Secretary] Duke announced the rescission and after three different courts had identified flaws in the original explanation.
The majority opinion also concludes that the administration failed to properly consider the "reliance interests" of DACA recipients, in making its rescission decision.
In the lead dissent, Justice Clarence Thomas, joined by Alito and Gorsuch, argues that DACA was illegal, and that provides sufficient justification for rescission. He argues that even the "forbearance" aspect of DACA is illegal because the Obama administration lacked the power to adopt "programmatic" exemptions from deportation, as opposed by "case by case" determinations. For reasons I summarized here and here, this distinction between systematic and "case-by-case" enforcement discretion makes little sense:
[T]he difference between case by case examination and categorical rules is one of degree, not kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense. And if general rules like this can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president, their ultimate superior.
In any event, the administration's rationale for rescinding DACA did not rely on this argument.
In a solo dissent, Justice Brett Kavanaugh contended that the Court should have accepted the later DHS memorandum, because "post hoc" rationales are only forbidden when offered by lawyers in litigation, not when developed by the administration. The majority has what I think is a good response to that argument:
JUSTICE KAVANAUGH asserts that this "foundational principle of administrative law," Michigan, 576 U. S., at 758, actually limits only what lawyers may argue, not what agencies may do…. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves.
The Court's decision strikes me as correct, in so far as it goes. But it is a very narrow ruling. It does not prevent Trump or a future president from rescinding DACA in the future. Indeed, as a legal matter, doing so would be relatively easy. All Trump would have to do is have DHS issue a new rescission memorandum that explicitly cites some policy rationale for abolishing forbearance on deportation. Alternatively, it could potentially abolish employment authorization and "lawful presence," while leaving forbearance alone.
In my view, deporting the DACA recipients would be both deeply unjust and harmful to our economy and society. But satisfying the APA's "arbitrary and capricious" standard does not require a good or even reasonable justification. It just has to meet very minimal standards of plausibility. Competent DHS staff could almost certainly come up with something that qualifies.
The main constraint on the administration's options here is political, not legal. DACA is a very popular program, and even a president as hostile to immigration as Trump might not want to abolish it in a way that requires the administration to explicitly say they want to deport the Dreamers, as opposed to hiding behind technical legal arguments. Perhaps the administration is unwilling to pay that political price, especially in an election year.
Political considerations aside, the narrowness of the ruling and the ease with which the administration could potentially get around it should allay concerns that the decision will make it difficult for future presidents to reverse predecessor's executive actions. They can still do so as long as they meet fairly minimal procedural standards.
The Supreme Court majority opinion also does not resolve the issue of whether the employment authorization and lawful presence elements of DACA are legal or not. These questions may well continue to be litigated in the lower courts. I have previously argued that the employment authorization provision is clearly legal, while the "lawful presence" provision is more questionable, but can easily—if necessary- be severed from the rest of DACA. But these issues remain unsettled, and could even potentially return to the Supreme Court, should DACA remain in force under Trump—or should a future administration reinstate DACA after Trump rescinds it again.
Finally, an 8-1 majority of the justices (with only Sonia Sotomayor dissenting) rejected the plaintiffs' argument that DACA rescission was unconstitutional because it was motivated by discriminatory animus against Hispanic immigrants, and therefore violated the Equal Protection Clause of the Fourteenth Amendment.
I think Justice Sotomayor makes some good points in her solo dissent on this issue. She is correct to argue that, under Supreme Court precedent, Trump's bigoted statements against Latino immigrants during the 2016 election provide evidence of discriminatory motive that shifts the burden of proof to the government—requiring them to show they would have enacted the same policy even aside from the illegal motivation. But, here, I don't think it would be difficult to prove that.
The belief that DACA is illegal is a longstanding and widely held view among conservative Republicans. It is not something that arose merely as a justification for acting on bigoted statements Trump made during the 2016 campaign. I think that view is wrong. But that doesn't make it a mere pretext for bigotry. Had a more conventional Republican won the 2016 election—even one who is himself Hispanic, such as Ted Cruz or Marco Rubio—there is a good chance they would have tried to rescind DACA, as well.
This history makes DACA repeal different from the 2018 travel ban case, where the policy at issue clearly grew out of Trump's notorious campaign promise to enact a "Muslim ban," the official justification for it was transparently bogus, and it is highly unlikely that anything like it would have been enacted in the absence of Trump's unconstitutional motive. The Court was disastrously wrong about the discrimination issue in the travel ban case. But it is on much sounder ground here.
I am not entirely sure even Justice Sotomayor would actually conclude that DACA repeal is unconstitutional based on discriminatory motivation. Her opinion merely concludes that the issue should have been remanded for further consideration by the trial court, at which point the administration could potentially have addressed the issue by making the sort of argument I described above.
In sum, today's ruling is an important, but very limited victory for DACA and the Dreamers. The latter have reason to celebrate. But their safety still remains in doubt. Trump or a future president could still potentially rescind DACA, and today's decision creates little in the way of legal obstacles to doing so. Only congressional action can truly free the Dreamers from the spectre of deportation.
UPDATE: In the initial version of this post, I misread Justice Thomas' dissent as accepting the legality of the forbearance element of DACA. I apologize for the mistake, which has now been corrected. I have also added a brief explanation of why I think Thomas is wrong on that issue.
Face Covering Directive Order 6/17/2020—Face Covering Directive (signed directive in Supporting Documents—below)
General directive: All individualis in Lincoln County are required to wear face coverings during any indoor public setting or outdoor public location where a person will be in within six feet of another individual, who does not share the same household.
Exceptions:
Persons with health/medical conditions that preclude or are exacerbated by wearing a face covering.
Children under the age of 12. Children over the age of 2 but under the age of 12 are encouraged to wear face coverings but not required to do so.
Persons with disabilities that prevents them from using the face covering as described in this Directive. These persons must be reasonably accommodated to allow them access to goods and services.
People of color who have heightened concerns about racial profiling and harassment due to wearing face coverings in public.
I appreciate the concern about racial profiling, but, no, it can't justify having one law for "people of color" and another for whites; such a race-based classification violates the Equal Protection Clause. Thanks to Luke Thiesen for the pointer.
The Supreme Court issued only one decision today, but it was another big one: Department of Homeland Security v. Regents of the University of California—the DACA case. In what was largely a 5-4 decision, the Court held that the Trump Administration's decision to rescind the Obama Administration's Deferred Action for Childhood Arrivals policy was subject to judicial review and was arbitrary and capricious under the Administrative Procedure Act. The Court also rejected, by an 8-1 vote, the claim that the DACA rescission violated the Equal Protection Clause, though there is no majority opinion on that point.
Chief Justice Roberts wrote the opinion for the Court (and a four-justice plurality opinion on the Equal Protection Claim), joined by the Court's four liberal justices (save for Justice Sotomayor on the that latter claim). Justice Thomas wrote a dissent, joined by Justices Gorsuch and Alito. Justice Kavanaugh also wrote a dissent. Note that both dissents were, technically, dissents in part and opinions concurring-in-the-judgment in part, as the dissenters all agreed with the Chief Justice's ultimate resolution of the Equal Protection claim.
The balance of this post will provide some highlights and initial reactions to the decisions. I am confident that my co-bloggers Ilya Somin and Josh Blackman will have more to say about this decision as well (and I suspect they will disagree with each other, so be sure to read them both).
The threshold decision by the majority holding that the DACA rescission is subject to judicial review is significant. While the Administrative Procedure Act (APA) has long been understood to embody a presumption of judicial review, it has also long been understood that exercises of enforcement discretion are generally immune from such review. So the Obama Administration argued its immigration policies (DACA and DAPA) were unreviewable (and also reversible at any time) and the Trump Administration argued that its decision to end DACA was likewise unreviewable. A consequence of this holding could be to narrow the range of administrative actions that are outside of judicial review.
On the merits, the majority opinion by Chief Justice Roberts appears to be quite narrow, and focuses on the paucity of the Trump Administration's initial explanation for why it was ending the policy The Chief Justice explains that the Trump Administration's decision must be evaluated based upon the rationale that was provided at the time the decision was made. According to Roberts, this means that the Court should only look at the Duke memo, and not the subsequent memorandum offered by Secretary Nielsen that later expanded and elaborated on the decision to rescind.
According to Roberts, Acting DHS Secretary Duke was bound by the Attorney General's conclusion that DACA was unlawful, but was nonetheless obligated to consider various approaches to DACA's purported illegality and whether ending DACA would disturb settled expectations. This is a dramatic conclusion, and has the potential to constrain a range of future administrative actions. Among other things, it seems to suggest that when the Executive Branch concludes an existing policy is illegal, it can't simply stop the policy, but has to publicly examine a range of alternatives even if the action in question is not an agency action with the force of law (such as a duly promulgated regulation). So even though the Obama Administration created DACA with the stroke of a pen, more than the mere stroke of a pen was required to rescind it.
That said, the Roberts opinion is narrow in that it does not consider the subsequent Nielsen opinion and leaves open the possibility that the Trump Adminsitration could stil rescind DACA, provided it adequately examines the relevant considerations in whatever memo or explanation accompanies the decision. The Court's 8-1 rejection of the Equal Protection claim further clears away this potential obstacle to rescission. As noted above, Justice Sotomayor dissented in part in a separate opinion arguing that the Court "prematurely dispose[d]" of these claims, and that the plaintiffs should have had the opportunity to demonstrate that the DACA rescission was motivated by animus on remand.
Roberts opinion concludes:
We do not decide whether DACA or its rescission are sound policies. "The wisdom" of those decisions "is none of our concern." Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew. . . .
Though I plan to dig into the Roberts decision more thoroughly, I am unconvinced by his analysis on multiple levels. I believe DACA was lawful (given the decades-long practice of immigration law enforcement and implementation that allowed forbearance and the receipt of benefits), but I also believe the Trump Administration had no obligation to provide any explanation at all for its rescission, and that the conclusion that DACA was unlawful was more than sufficient to justify its rescission (and would be so even if courts disagreed as to that determination, as what matters is whether the decision was reasonable, not whether it was correct).
Chief Justice Roberts' decision here appears to be of a piece with what I've characterized as his "anti-disruption" approach to judging. He dislikes decisions that alter precedent, invalidate federal statutes, sweep too broadly or (as here) upset settled expectations or cause administrative disruptions. This is also a sufficient priority for him that his concern for disruption will trump his concern for adhering to statutory text or constitutional principle. In these respects, I see his decision today as fitting in with what we've seen from him in a range of cases, including (but not limited to) Bond, NFIB, and King.
Justice Thomas wrote the principal dissent, joined by Justices Alito and Gorsuch. According to Justice Thomas, DACA was unlawful from the inception, and that provides ample basis for the Trump Administration's to rescind the program. He writes:
DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency's policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency's determination of illegality is sound, our review should be at an end.
Today's decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS' initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court's duty to apply the law according to neutral principles, and the ripple effects of the majority's error will be felt throughout our system of self-government.
Perhaps even more unfortunately, the majority's holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today's decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.
Justice Kavanaugh wrote a separate, more narrow, dissent, focusing on the APA question. He stresses that all nine justices accept that the Executive Branch has the legal authority to rescind DACA, and dissents on the ground that the explanation for the DACA rescission provided by the Nielsen memo was sufficient for this sort of action under traditional standards of judicial review. Justice Kavanaugh's opinion was confined to this claim, and assumed, for the sake of argument, that the decision to rescind DACA is properly subject to judicial review in the first place.
A final note: While I largely agree with Justice Kavanaugh, I think it is fair to note that here (as in so many cases) the Trump Administration adopted a sloppy and incautious approach to policy implementation. As I stress to my administrative law students, government lawyers should be in the habit of dotting every "i" and crossing every "t", and checking such things twice, so as never to give a court that dislikes a policy decision an excuse to invalidate the action on procedural grounds. Though I think the Court today got the legal question wrong, the Trump Administration made it easier for the Court than it should have—and that's something we've seen from this Administration quite a bit.
An old Communist-era joke from Poland (or at least that's how I heard it), which I was reminded about when talking to a fellow Russian emigre yesterday.
In the Washington Post, there's a long article that's hard to suitably excerpt (and that's unfortunately paywalled); but this should give you a sense of the matter:
A middle-aged white woman [went to Washington Post cartoonist Tom Toles' 2018 Halloween party wearing] a conservative business suit and a name tag that said, "Hello, My Name is Megyn Kelly." Her face was almost entirely blackened with makeup. Kelly, then an NBC morning show host, had just that week caused a stir by defending the use of blackface by white people: "When I was a kid, that was okay, as long as you were dressing up as, like, a character."
Two other guests, one Hispanic and one black, confronted the woman and got into an argument with her ("You understand how offensive that could be to a person of color?" / "I'm Megyn Kelly — it's funny!") and on from there.
Nearly two years later, the incident, which has bothered some people ever since but which many guests remember only barely or not at all, has resurfaced in the nationwide reckoning over race ….
The Hispanic guest wrote in an e-mail that, "After the killing of George Floyd and the protests, I began reflecting more on this incident." And of course, after the woman who wore the blackface "informed her employer, a government contractor, about the blackface incident and The Post's forthcoming article, she was fired, she said." Not even for what she did on the job, not even for what she did on television, but for a costume she wore at a party at a friend's house; that, at least, is this incident, but next it will be for something someone said over dinner, or a joke in a conversation among acquaintances.
You might recall the circumstances of the famous "have you left no sense of decency?" response by Joseph Welch to Sen. McCarthy: McCarthy was trying to publicly damage the career of Welch's associate (at the prominent Hale & Dorr law firm) for having been—about five years before—a member of the National Lawyers Guild, which had defended Communists, and which had Communists as some of its founding members. And that became, understandably, one of the great lines still remembered from the McCarthy era.
Also worth remembering from Welch's response:
Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale & Dorr. It is true that he will continue to be with Hale & Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty, I would do so. I like to think I'm a gentle man, but your forgiveness will have to come from someone other than me.
There's no particular individual figure in this story like Sen. McCarthy. But there is a broad segment of a broad social movement happy to use personal destruction as a weapon—a segment that is so focused on the evil of its core enemies (Communism and racism both serve well here) that recklessness, cruelty, and loss of a sense of decency naturally emerge, and directed at far more than the true Communists and racists. And there aren't a lot of Joseph Welches who will stand by the people who work for them, and thus risk themselves and their enterprises likewise being targeted.
Between the elite media navel-gazing, the smug sanctimony of the cancelers, the absurd one-sidedness of the narrative structure, the spirit of revenge taken to an odious extreme, it's hard not to come away feeling nauseated…. [It's] emblematic of the rising dual trends of activist journalism and unforgiving progressivism ….
[T]his is a putative class action lawsuit brought by players of DraftKings Inc. … fantasy baseball contests against certain major league baseball entities and teams. In February, defendants moved to dismiss for failure to state a claim plaintiffs' First Amended Complaint ("FAC"), which asserted various claims of fraud, negligence, unjust enrichment, and violations of consumer protection laws. The Court granted the dismissal with prejudice, partially on the ground that the FAC failed to plausibly allege any actionable misrepresentation by the defendants that could support their various theories of liability.
Thereafter, plaintiffs moved for reconsideration of the Court's conclusion that the complaint should be dismissed with prejudice. In support of this motion, plaintiffs submitted a proposed amended complaint ("PAC") that they argued cured the FAC's deficiencies. One of the primary ways in which the PAC did so, according to plaintiffs, was by alleging two new actionable misrepresentations by the defendants.
One such misrepresentation was allegedly made by MLB Commissioner Manfred in a September 15, 2017 press release relating to the results of an MLB investigation into possible misconduct by the New York Yankees …. Specifically, plaintiffs alleged that the 2017 Press Release falsely suggested that the investigation found that the Yankees had only engaged in a minor technical infraction, whereas, according to plaintiffs, the investigation had in fact found that the Yankees engaged in a more serious, sign-stealing scheme.
