Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Victory! This week, S.D. Iowa rejected a mayor and police chief's invocations of qualified immunity (and the Nuremberg defense) and handed a big win on the merits to our client, who was arrested, jailed, and criminally prosecuted for criticizing them. Good stuff. Click here to learn more.
New on the Short Circuit podcast: To fuel the nightmares of our lawyer listeners, a story of a settlement that was until it wasn't, powered by litigation financing.
After news reports indicate that ICE planned to request immigrants' addresses from the IRS to aid immigration enforcement, immigrant-rights groups sue to enjoin the information sharing. D.C. Circuit: But the statute that prohibits release of "taxpayer return information" exempts addresses. Injunction denied. Read More
Judge McCafferty refuses to stay her unconstitutional injunction, and it appears the state AG's office is still failing to raise its strongest constitutional defense.
Last month, a federal judge in New Hampshire issued an injunction purporting to prevent the state from ending its vehicle emission inspection program. The state legislature had repealed the program, effective January 31. No matter, the Judge McCafferty concluded, the state is required to have such a program under the federal Clean Air Act, so the state was enjoined from getting rid of the program.
As I explained in this post, the judge's injunction is unconstitutional, as it forces the state to implement a regulatory program. The judge claimed this outcome was required by the Clean Air Act, but it is well-established, black-letter law that federal law may not require a state to administer or implement a regulatory program. Any such requirement is commandeering, and is unconstitutional under a line of Supreme Court decisions going back over thirty years, including New York v. U.S., Printz v. U.S., and Murphy v. NCAA.
[Indeed, the history goes back farther, as the U.S. Environmental Protection Agency had taken the position in the 1970s that states could be required to implement vehicle emission inspection programs under the Clean Air Act, only for the Solicitor General to concede the point to the Supreme Court, prompting the dismissal of EPA v. Brown. I have a paper retelling this saga, unearthing some of the anti-commandeering principle's forgotten history, that I hope to post on SSRN later this year.]
Given the history, and well-established nature of the anti-commandeering principle, I was surprised to read the judge's order. I was even more surprised to discover that the state AG's office had not raised the anti-commandeering principle in the state's defense. Now I am more surprised still, as this past Wednesday the judge denied the state's motion for a stay, again without any mention of commandeering concerns (and, based on her opinion, it appears the state again failed to raise the argument).
The problem, again, is that Judge McCafferty seems not to understand the nature of our federal system, or the particular requirements of the Clean Air Act. "The Clean Air Act requires New Hampshire's SIP to contain an I/M program," she writes in her latest order. That is true, as far as it goes, in that a state that fails to adopt an adequate SIP [State Implementation Plan], or fails to maintain a SIP approved by the EPA (as is the case here), is out of compliance with the Act. But this does not mean that federal law requires New Hampshire or any other state to have such a program. Rather, should a state fail to submit, maintain, or enforce a compliant SIP, federal aw provides that the state can be subject to various sanctions, such as the loss of some federal funding and the direct imposition of a FIP [Federal Implementation Plan]. What the Clean Air Act does not do is provide a basis for forcing a state to adopt any particular regulatory measure--a point which the federal government has accepted for the past fifty years. [For more on what is and is not commandeering or otherwise coercive under the Clean Air Act, see this article I wrote a few years back with Nate Stewart.]
The Clean Air Act operates this way, in part, so as not to commandeer state governments. Under New York v. United States, it is perfectly okay for the federal government to offer inducements for state cooperation, as well as to threaten adverse consequences for state intransigence. But what federal law cannot do is simply direct states to play the federal government's tune--and yet that is precisely what Judge McCafferty has done. And if there were any question on this point, recall that in Murphy v. NCAA the Supreme Court made abundantly clear that the anti-commandeering principle prevents the federal government from ordering a state not to repeal a state law.
The underlying legal question in this litigation is not a particularly close one. Yet for some reason the state AG's office did not press the point. This has not escaped the notice of other New Hampshire officials, so perhaps things will change on appeal. Until then, the unconstitutional commandeering of New Hampshire will apparently continue.
The draft of "Birthright Citizenship Re-Examined" is available on SSRN. Here is the abstract:
In 2020, I argued in Originalism and Birthright Citizenship that the original meaning of the Fourteenth Amendment's Citizenship Clause guaranteed U.S. citizenship to almost everyone born in the United States apart from the children of foreign diplomats and (at the time it was adopted) tribal Native Americans. President Trump's 2025 executive order purporting to exclude from birthright citizenship the U.S.-born children of temporary visitors and of persons not lawfully present in the United States has brought the issue to the forefront and inspired prominent originalist counterarguments. In particular, two leading originalist-oriented scholars—Kurt Lash and Ilan Wurman—separately argue that the original meaning's citizenship guarantee is narrower than I contended.
This Article responds to these new originalist assessments of the Citizenship Clause. Notably, although these scholars both reject the broadest reading of the Citizenship Clause, they disagree between themselves as to the clause's correct reading and scope. Professor Lash's account would exclude U.S.-born children of parents unlawfully present in the United States (thus defending the executive order only in part). Professor Wurman argues that the clause may guarantee citizenship to U.S.-born children of alien parents only if the parents are lawful permanent residents; this approach would find the President's executive order consistent with the clause's original meaning.
Evaluating each of these contentions in turn, this Article concludes that neither of them is persuasive. Rather, this Article reaffirms the conclusion that the Citizenship Clause's broad language ("All persons born… in the United States and subject to the jurisdiction thereof, are citizens of the United States….") encompasses all U.S.-born persons over whom the United States exercised sovereign authority at birth.
This article, like other recent work, adds to the ongoing debate about the precise scope of the Fourteenth Amendment's citizenship clause.
I continue to believe the arguments for the conventional account are more compelling than the revisionist accounts that would undermine the scope of birthright citizenship, particularly if one believes the question should be answered by the original public meaning of the clause, as opposed to a living constitutionalist theory. I also believe the question that is most up for debate is not the operation of the clause itself, but the extent to which Congress may adjust the contours of birthright citizenship by using its Section Five power to define or redefine what it means to be subject to the jurisdiction of the United States. Yet because Congress has made no effort to enact such legislation, that is not a question that bears on the proper resolution of Barbara v. Trump, the case the Supreme Court will consider this spring. It is rather a question for another day.
On Wednesday, I participated in the Rappaport Forum at Harvard Law School on "The Docket that Shall Not Be Named" with Professor Kate Shaw. The discussion was moderated by Professor Richard Re.
As regular readers would expect, I sought to put discussion of the Supreme Court's "shadow docket" into perspective and explain why I believe it is premature to draw conclusions about what the pattern of recent decisions regarding requests for interim relief says about the Court, the Court's relationship to the executive branch, or even the Court's relationship with the second Trump Administration.
I was supposed to be participating in person. Alas, the weather and the airlines did not accommodate. So while I had to participate Oz-style, as a disembodied head on the wall, I believe we had a worthwhile discussion. Video below.
[1.] Some states and municipalities ban public nudity generally, but some, like Washington, ban only nudity that is "lascivious," which is to say involving some sexual motivation (to oversimplify somewhat).
Does the First Amendment permit such bans when applied to expressive nudity? You can read the badly fractured decision of the Court in Barnes v. Glen Threatre, Inc. (1991) for yourselves and figure out what it means as a precedent. Five Justices voted to uphold a total ban on public nudity, even as to places where only consenting adults are present (such as strip clubs). But Justice Souter, whose vote was necessary to that result, stressed that nude dancing could be banned to prevent "secondary effects" such as "prostitution, sexual assault, and other criminal activity." It's not clear then how that holding would apply to cases where the nudity is not sexual and is unlikely to yield such effects.
[2.] Nudity and recalls of elected officials, together! Under Washington law, executive officials can be recalled if enough voters petition, and then if a majority of voters so vote. But there has to be some allegation of "some act or acts of malfeasance or misfeasance while in office, or … violat[ion of] his oath of office," and courts can reject recall grounds if they don't adequately allege such misconduct.
It's not like a normally scheduled election, where voters can throw the bums out for any reason they want. But it's also not like an impeachment process, which is supposed to involve a trial before legislators who decide whether an official's actions fit within the category of "high crimes and misdemeanors." Different states have different rules on the subject (see this 2021 post).
[3.] With that in mind, here are the facts from In the Matter of Recall of Lauser, decided yesterday by the Washington Supreme Court (majority opinion by Justice Charles Johnson):
Christina Winterbauer was a civilian employee of the St. Louis Metropolitan Police Division, Department of Public Safety where she worked as a dispatcher. During the 2020 Black Lives Matter protests, Winterbauer made a private Facebook post commentating on the situation in St. Louis. The post read:
And so it begins! Got a call yesterday on my day off, was told when I go back to work Tuesday, we will be on Mandatory 12 hours shifts, All because a bunch of Animals don't know when enough is enough!! This is my 3rd time working through Protesting & Riots since Ferguson 6 years ago!! I'm tired of my life being turned upside down, my work schedule changing (not by my choice), plans I had made changing, because these Mofo's are out of control! I suffer from anxiety & it has been really bad since all this protesting started here, worrying about our Officer's & my Co-Worker's getting to & from work safety! I'm afraid to drive to work due to not knowing if I'm going to run into a protest or being shot at because I'm white, yes they are targeting us white people because of the color of our skin! With that being said, to all of you supporters of this Crime, Looting & Destruction going on in our City & others, I hope you're happy with it all & screw you as well, now I'm angry because once again my life is now effected from this shit! This is how I feel about all of it so if you don't like it, too bad, press the unfriend button, because I promise you I will not lose sleep over it!!
I ask you to pray for all of us First Responders through this, that we all make it to work safely & back home to our families safely! Pray for this madness to end, watch your backs, be aware or your surroundings, because this is some scary shit going on out on the streets!
God Bless us all!!!
The post was subsequently shared with local media by an anonymous third party. Winterbauer alleges that there was no internal backlash to her post, and that it did not disrupt the department. In response to the post, the Department terminated Winterbauer.
Winterbauer sued, and the court allowed her claim to go forward:
Professor Francis Beckwith (Baylor) and I both serve on the President's Religious Liberty Comission. We felt compelled, as a Catholic and a Jew, to write an interfaith op-ed about the rising tide of antisemitism, that is dressed up in the garb of traditional faiths. The Free Press, one of my favorite publications (you should subscribe), published our piece titled
"Trump's Religious Liberty Commission Was Hijacked by an Antisemite."
Here is a key component:
[Carrie Prejean] Boller was way out of her depth and should not be taken seriously now that she has been dismissed. Unfortunately her conduct is indicative of a growing trend among many young Catholics. These young people seem to have become disaffected by modern changes in church liturgy and are drawn to many pre-Vatican II practices. This turn to liturgical traditionalism may have also reinvigorated the sort of antisemitism once embraced by figures like Father Charles Coughlin, a notorious Jew-hater and popular radio personality between the 1920s and 1940s. A Catholic priest told one of us that he was horrified during Good Friday prayers last year when several college-aged young men at the service refused to kneel during the congregation's prayers for the Jewish people.
Boller and those who think like her are out of step with the teachings of the Catholic Church. In Nostra aetate, the 1965 Vatican II declaration about Catholicism's relationship to non-Christian religions, the Church affirmed that "God holds the Jews most dear for the sake of their Fathers; he does not repent of the gifts he makes or of the calls he issues."
This important document issued in the wake of the Holocaust "decries hatred, persecutions, [and] displays of antisemitism directed against Jews at any time and by anyone." The Vatican II Council also rejected the teaching that Jews are collectively guilty of the killing of Jesus. Boller apparently didn't get the memo. At the hearing, she read a biblical passage from 1 Thessalonians 2:14-15 without the proper theological context: "The Jews who killed both the Lord Jesus and their own prophets. . . " On a recent podcast, she repeated the claim that "Jews killed Jesus." Boller purports to speak as a devout Catholic, yet she cannot even be troubled to accurately state the Church's teachings on Jews.
When, at the hearing, Boller said "I am a Catholic, and Catholics don't embrace Zionism," she is fundamentally wrong that Catholicism is inconsistent with Zionism. In 1993, the Holy See established full diplomatic relations with Israel, affirming the legitimacy of the Jewish state's existence, and thus rejecting anti-Zionism. During his 2009 visit to the Holy Land, Pope Benedict XVI, in affirming his support for a two-state solution, stated unequivocally, "Let it be universally recognized that the State of Israel has the right to exist, and to enjoy peace and security within internationally agreed borders."
We conclude:
People of all faiths need to stand up now to prevent their doctrines from being hijacked, once again, by antisemitism. We must never forget what happens if faith is corrupted by the world's oldest hatred.
The oldest form of hatred is on the rise. It must be stopped.
Today, I took part in a National Constitution Center podcast on the Supreme Court's recent tariff decision. The other participants were Zach Shemtob (SCOTUSblog) and Julie SIlverbrook (NCC). In addition to considering the big-picture implications of the tariff ruling, we also discussed all seven of the majority, concurring, and dissenting opinions! The audio and a more detailed description of the podcast are available here. I have also embedded it below:
The NCC site linked above also contains a list of links to various articles and court decisions relevant to our discussion. I repost that list here:
On March 27, 2025, the President signed Executive Order 14,251, invoking his authority under 5 U.S.C. § 7103(b)(1) to exclude various federal agencies and subdivisions from collective bargaining requirements based on national security considerations. The district court preliminarily enjoined the Executive Order after concluding that the President issued it to retaliate against federal employee unions, in violation of the First Amendment. We stayed the district court's injunction pending appeal. Consistent with the reasoning in our prior stay order, we now vacate the preliminary injunction….
[T]he Federal Service Labor-Management Relations Statute (FSLMRS) … "expressly protects the rights of federal employees 'to form, join, or assist any labor organization, or to refrain from any such activity,' and imposes on federal agencies and labor organizations a duty to bargain collectively in good faith." The FSLMRS exempts several federal agencies from coverage, including the FBI, the Government Accountability Office, and the CIA…. [And the statute adds that]
The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that—
(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and
(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.
Since the FSLMRS was enacted in 1978, every President other than President Biden has signed executive orders that exclude designated agency subdivisions from the FSLMRS under § 7103(b)(1).
On March 27, 2025, President Trump signed Executive Order 14,251. Invoking § 7103(b)(1), the President determined that certain agencies "have as a primary function intelligence, counterintelligence, investigative, or national security work," and that the FSLMRS "cannot be applied to these agencies and agency subdivisions in a manner consistent with national security requirements and considerations."
Under EO 14,251, the agencies designated for exclusion include, inter alia, the Departments of State, Justice, and Veterans Affairs, the EPA, nearly all of the Departments of Energy, Defense, and Treasury, and various subdivisions of the Departments of Agriculture, Homeland Security, and Health and Human Services. The Executive Order exempted from exclusion "local employing offices of any agency police officers, security guards, or firefighters, provided that this exclusion does not apply to the Bureau of Prisons." It appears that EO 14,251 is the largest single effort to date to exclude agencies and subdivisions from collective bargaining on national security grounds.
Upon issuing the Executive Order, the White House posted a "Fact Sheet" to the White House website…. It described how the various excluded agencies were involved in national security functions relating to national defense, border security, foreign relations, energy security, cybersecurity, and so on. The Fact Sheet further explained that collective bargaining agreements and "hostile Federal unions" were impeding national security, including by hamstringing agencies in their ability to address poor performance and employee misconduct.
I did a Society for the Rule of Law podcast about the Supreme Court's ruling in our tariff case. Gregg Nunziata, Executive Director of the Society, interviewed me. We covered all major aspects of the decision, its implications for the future, and also potential litigation over Trump's new Section 122 tariffs. The video is embedded below:
I have also written several articles and blog posts about these issues, in recent days:
On paper, the program seems unobjectionable. Students are asked to wear clothes from their ancestral homeland. Students can also prepare posters with pictures and other symbols from that nation. And parents can bring in food from their local cuisines. Students then group together by region: Europe, Asia, the Middle East, Africa, and South America. They parade down the hallway, which was festooned with flags from around the globe. At some level, the day was enjoyable. I saw kids smiling as they celebrated the culture that mattered most to them. Parents also cheered when their home country was represented. What could be wrong?
Lots can be wrong.
From the conclusion:
Multicultural Day is a gateway drug to DEI. It acculturates students at the earliest age to focus on differences between races and nationalities rather than on what unites us. Efforts to allow students to represent their own cultures necessarily separate them on that very basis. Shortly after Multicultural Day ended, African American History Month began. Unsurprisingly, there was no representation of Justice Clarence Thomas, one of the most influential black people in American history.
From Lucey v. Kinnon, decided Dec. 15 by the Massachusetts Appeals Court, in an opinion by Justice John Englander, joined by Judges Eric Neyman and Joseph Ditkoff (affirming a decision I blogged about here in 2024):
The defendant Neil Kinnon insulted the plaintiff, Scott Lucey, on the webpage for a Facebook group known as "Malden (MA) Politics." {Kinnon is a former Malden city councillor, and Lucey, an attorney, had been a frequent participant in Malden political discussions.} Specifically, in responding to a comment that Lucey had posted on June 7, 2023, Kinnon stated,
"I'm beginning to wonder if you are capable of reading. Might want to read again and anybody who would hire you to be their attorney God Bless them, because someone must have taken the Bar exam for you" (emphasis added)….
"Statements that are merely 'rhetorical hyperbole,' or that express a 'subjective view,' are not statements of actual fact." … Here, the statement at issue is rhetorical hyperbole, and would not be understood otherwise by a reasonable person reading the statement in context. The context itself is banter, between two persons whose statements indicate that they had bantered previously.
Various laws are described as providing higher punishment for hate crimes, but they generally don't focus on whether the defendant hated people with a particular identity. Rather, they focus on whether the defendant committed the crime at least in part because of the target's identity. Often that will stem from hatred or other identity-based hostility, but not always. An excerpt from the long U.S. v. Ritter, decided last week by the Fourth Circuit (in an opinion by Judge Julius Richardson, joined by Judges Robert King and Pamela Harris), offers a good illustration:
Defendant Daqua Ritter grew up in rural Allendale, South Carolina. Though he later moved away, he often returned there during summers. During his visits, he maintained a sexual relationship with victim Ernest "Dime" Doe—a "biological male" who "presented as a female."
While Doe openly referred to Ritter as Doe's "man" or "boyfriend," Ritter tried to keep the relationship secret. He often told Doe to delete their messages. And Ritter became angry whenever people brought up his relationship with Doe, stating on several occasions that he would beat Doe when others brought up their sexual relationship. Though Doe feared Ritter, their relationship continued.
When Doe was found shot dead in a car beside a rural road, rumors implicating Ritter quickly surfaced. Just hours earlier, Doe had been pulled over for speeding while Ritter was in the passenger seat. That stop was the last time that Doe was seen alive. Hours later, Doe was dead. And Ritter then showed up at his uncle's house—blocks away from the crime scene—asking for a ride into town. Before long, Ritter asked friends to dispose of his gun and burned his clothes in a barrel. This initiated a years-long investigation conducted by state and federal law enforcement.
A federal grand jury eventually indicted Ritter for [among other things] willfully causing bodily injury to Doe because of Doe's gender identity …. A jury convicted Ritter on all counts, and the district court sentenced him to life in prison….
Ritter … argu[es] that the evidence was insufficient to prove that he killed Doe "because of" Doe's "actual or perceived … gender identity." … [W]hat does it mean for somebody to act "because of" a given trait? … "[B]ecause of" incorporates "the traditional but-for causation standard." … So the government had to show that Ritter would not have killed Doe but for Doe's "actual or perceived … gender identity." The statute defines "gender identity" as "actual or perceived gender-related characteristics." …
[T]he evidence—viewed in the light most favorable to the government—was sufficient to lead a rational juror to conclude that Ritter killed Doe because of one of Doe's perceived gender-related characteristics: Doe's biological sex.
The evidence showed that the broader Allendale community knew that Doe was a biological male who presented as a woman. Ritter was very sensitive about people finding out that he was in a relationship with Doe, because Ritter didn't want people questioning his sexuality. So Ritter pressured Doe to keep their relationship secret, including by asking Doe to delete the messages they exchanged.
Most of the discussion was focused on the wrong issue. What matters under the Takings Clause is not the "fairness" of the process by which the owner's house was taken, but whether he got adequate "just compensation."
Today the Supreme Court held oral argument in Pung v. Isabella County, an important takings case in which I filed an amicus brief on behalf of the Cato Institute, myself, and a group of prominent takings scholars. Frustratingly, much of the oral argument focused on the wrong issue.
This is a case about home equity theft. Isabella County, Michigan seized the late Timothy Pung's house because he supposedly failed to pay some $2200 in taxes and fees (his estate claims he didn't actually owe anything). They then sold the property at auction for about $76,000; the County kept the $2200 it thought was owed and transferred the remaining funds (about $73,800) to Pung's estate.
The usual standard for takings compensation, according to longstanding Supreme Court precedent, is "fair market value" - the price a property would fetch if sold on the open market. Pung's estate argues the fair market value here is actually $194,400 (the amount at which the county itself assessed that value for property tax purposes).
If a seizure of home equity after foreclosure is a taking - as the Supreme Court's unanimous decision in Tyler v. Hennepin County (2023) rightly held - then the estate is obviously right. The property taken is the residual value of the home (after delinquent taxes are repaid). And that can be more than the government got from the highest bidder at the auction.
Here, it seems clear the auction price was indeed far too low. We know that because the winning bidder quickly resold the property for $195,000 (very close to the Pung estate's estimate of the fair market value).
When the Court took the case and after I saw the impressively broad cross-ideological array of amicus briefs supporting Pung, I thought it highly likely that the justices would simply rule that fair market value compensation is required. Our amicus brief explains why that follows from basic Takings Clause principles. But, sadly, most of today's argument wasn't actually focused on the amount of compensation required, but rather on the "fairness" of the foreclosure and auction process to which the property owner was subjected. That's not the right issue! The Takings Clause is a substantive standard, not a procedural one. It requires payment of "just compensation" when the government takes property. And, in this case, both sides agree that a taking has occurred (counsel for the County admitted as much during the argument). Thus, the focus should be on whether the amount of compensation the Pung estate got was adequate, not on the process that got to that point.
And, in this case, it is very obvious that the compensation was grossly insufficient. The government's own valuation of the property shows that, as does the fact that the winner of the auction soon turned around and sold the house for almost exactly what the government had valued it at.
Justice Neil Gorsuch got it right when he said that "I would have thought that when I lose all the bundle of sticks in my property, and the state takes them, that's a taking… for the purposes of the U.S. Constitution." Exactly so! The County took the house, and therefore must pay the owner its full value.
Justice Ketanji Brown Jackson suggested "the thought that all of the fairness questions that are coming up in this case could actually be taken care of in the due process realm," and thus better dealt with under the Due Process Clause of the Fifth Amendment, rather than the Takings Clause. She's largely right about that, I think. But she draws the wrong conclusion for this case (that the County should likely win). The right conclusion is that the requirements of the Takings Clause cannot be satisfied by mere procedural fairness. The government must pay fully adequate compensation, which in most cases requires at least fair market value. In our amicus brief, we point out that fair market value compensation often may actually be insufficient, because it sometimes fails to account for the "subjective value" may people attach to their homes and other property. But, at the very least, compensation far below fair market value is not enough.
Perhaps the focus on procedural fairness was dictated by a fear that simply ruling that fair market value compensation is required would destroy the tax foreclosure system. The Trump Justice Department lawyer who intervened today claimed that such a requirement "would spell the end of tax sales in America. Every tax sale is necessarily going to yield less than fair market value." That claim is false. As detailed in our amicus brief (pg. 18), and others, states have a variety of options for structuring foreclosure auctions in ways that avoid that problem. For example, they could simply mandate a minimum auction bid equal to fair market value, or close to it. Justice Alito noted various such alternatives in the oral argument.
That said, it is true (as also noted in our brief) that tax foreclosure auctions often lead to inadequate compensation for property owners. We point out that poor, elderly, disabled, and minority owners are particularly at risk of home equity theft. The Court would do well to put an end to these blatant violations of constitutional property rights. If the price of ending it is that states must find some other way to deal with tax delinquencies, so be it.
Several justices, including Amy Coney Barrett and Sonia Sotomayor, highlighted the unfairness of the County's seizure of a home worth over $194,000 to pay off a tax delinquency of just $2200, especially since it was far from clear that Pung really was delinquent. As Barrett put it, "it sounds to me like this tax assessor was like Inspector Javert, but it was even worse because [in this case] Jean Valjean hadn't stolen the bread." Such vast disproportions between the tax delinquency amount and the value of the property taken often occur in tax foreclosure cases. That's yet another reason to mandate full fair market value compensation.
Justice Thomas raised the issue of why, if fair market value compensation is the standard, so many states have traditionally gotten away with paying much less. The answer is that it was only in 2023 (in the Tyler case) that the Supreme Court finally ruled on the issue of whether home equity theft qualifies as a taking at all. Until then, there was little federal judicial scrutiny of tax foreclosure auction prices, though some state courts did curb these practices under their state constitutions.
At this point, I am not sure what will ultimately happen in this case. Several justices suggested the Court might vacate the Sixth Circuit decision in favor of the County and remand the case for further consideration of the "fairness" of the foreclosure auction process. In that event, much will depend on what standards the Court sets down for evaluating how "fair" the process is. There may also be some chance that the Court will still require fair market value compensation, or at least some degree of presumption in favor of such. I cannot entirely rule out the possibility that Court will affirm the badly misguided Sixth Circuit ruling. But I suspect there are not five votes for that.
Finally, it's worth noting that the Trump administration's intervention against property rights here is of a piece with this administration's general hostility to constitutional property rights. Trump had a terrible record on property rights during his first term, and the second seems to be just as bad.
In sum, it's hard to tell what will happen here. But it's frustrating that the justices may end up making a clear and simple issue unduly complicated, and in the process mucknig it up. The government took the Pung estate's property here, and they have to pay full compensation for it, minus the delinquent taxes Pung owed (assuming he did in fact owe them). That should be enough to settle this case and all others like it.
NOTE: The Pung estate is represented by the Pacific Legal Foundation, a public interest law firm which is also my wife's employer. She, however, is not one of the attorneys on the case. The estate is also represented by other attorneys.
