The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Friends, the Supreme Court has long treated the nondelegation doctrine as a dead letter. Indeed, since 1935 no public nondelegation challenge has prevailed at SCOTUS, which is unfortunate; the doctrine was meant to safeguard the separation of powers (and thus individual liberty), and its disappearance coincides with rampant overcriminalization. But this week, SCOTUS heard oral argument in Gundy v. United States, which presents the Court with a chance to reconsider. Click here to read IJ's amicus brief.
New on the podcast: a special live edition recorded at UNC law school at the invitation of UNC's Federalist Society chapter and featuring Chris Brook of the ACLU of North Carolina and IJ's very own Justin Pearson. Click here for iTunes.
- After state-court criminal conviction, lawyer discovers that a juror had apparently been consulting a book by Ann Coulter (literally entitled Guilty) in the jury room. And that would be a problem if this had been a federal trial, says the First Circuit, but it doesn't create grounds for habeas relief.
- Allegation: Nesquehoning, Penn. officer loses control during 100-mph chase (over minor traffic violation), crosses center line and crashes into man's vehicle, seriously injuring him and killing his wife. (The officer pleads guilty to vehicular homicide.) Can the man sue the officer? District court: Yes. Third Circuit: Vacated. The officer's conduct shocks the conscience but does not violate clearly established law. From here on out, though, no qualified immunity for this. Partial dissent: Every reasonable officer knows this is outrageous, unconstitutional conduct.
- Perfluorinated compounds from U.S. Navy facilities in Pennsylvania contaminate two families' private wells. The Navy connects them to municipal water supply. Yikes! That's contaminated, too. Third Circuit: The feds are cleaning up the facilities, so most of the families' claims can't go, but it could be that the Navy has to pay for medical monitoring. That claim should not have been dismissed.
- Whole Foods gets caught selling prepackaged food that included the weight of the package in the total price of the food—and thus charging consumers for more than they received. Allegation: Executives lied to investors during this scandal, artificially inflating the price of the company's stock. Fifth Circuit: "Just because Whole Foods' prices were not as competitive as advertised, it need not follow that they were not competitive." No securities violations here.
- Defendant entered a guilty plea without being fully apprised of the possible immigration consequences, though he says he wouldn't have gone to trial anyway. Sixth Circuit (over a dissent): But he might have been able to negotiate about those consequences in the course of plea bargaining, so he gets to withdraw the plea anyway.
- District court: Toxic coal ash is most likely leaking from ponds near a soon-to-be shuttered Tennessee Valley Authority power plant into the Cumberland River near a popular recreation spot. The TVA must move the coal ash to a new facility with better protections against leakages. Sixth Circuit: Not so. Because the contamination reaches the river indirectly (first seeping into groundwater and then reaching the river), the Clean Water Act doesn't apply. (Other laws might, though.) Judge Clay, dissenting: "Can a polluter escape liability under the Clean Water Act … by moving its drainage pipes a few feet from the riverbank? The Fourth and Ninth Circuits have said no. In two cases today, the majority says yes."
- Environmentalists: Toxic coal ash is leaking from ponds near a Kentucky power plant into groundwater and then into a nearby lake. Sixth Circuit: Not a Clean Water Act violation. But the Resource Conservation and Recovery Act, which regulates solid waste management, applies. The RCRA claim should not have been dismissed. Judge Clay, concurring in part, dissenting in part: The CWA applies, too.
- Butter sold in Wisconsin must bear a grade based on 32 different characteristics (relating to flavor, body, color, and salt) that is bestowed by state or federal butter graders. (No other state requires butter grading.) Ohio dairy company that sells its artisanal Amish-style butter nationwide objects to Wisconsin's grading—it's too expensive and, besides that, it violates the Fourteenth Amendment and the dormant commerce clause. Seventh Circuit: Nope. Butter badges build better butter buyers.
- Did Led Zeppelin steal "Stairway to Heaven"? (Have a listen to Spirit's song "Taurus" and decide for yourself.) Ninth Circuit: Could be. The jury should have been instructed that the selection and arrangement of unprotectable musical elements are protectable. Remanded for a new trial, and this time "Taurus" must be played in front of the jury.
- Decatur, Ala. woman arrested, indicted on drug charges (which prosecutors agree to dismiss upon her paying court costs). But housing authorities terminate her Section 8 voucher (which prohibits recipients from engaging in drug-related criminal activity) based on the indictment. Eleventh Circuit: Can't do that. The authorities needed to establish by a preponderance of the evidence that she committed the crime; the indictment establishes only probable cause, which isn't enough. Concurrence: This is what our precedent requires, but it should be overruled en banc.
- Allegation: Prisoner is shanked in the eye by fellow inmate, dies the following day. Did the Springville, Ala. prison warden unconstitutionally interfere with the deceased's care by approving a "do not resuscitate" order and authorizing physicians to take him off life support? The Eleventh Circuit says yes. Prison wardens cannot act as proper surrogates to make end-of-life decisions. No qualified immunity.
- Deaf man alleges that four Hallandale Beach, Fla. websites fail to provide the closed captioning required by federal statute. District court: Only one of the four websites belongs to the city. (One is Facebook.) And anyway, the man had to file a FCC complaint before filing suit. Case dismissed. Eleventh Circuit: Vacated. There's no need to file a complaint first. (But if indeed three of the sites are not run by the city, those claims can't go.)
- "How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It's nuts." So writes Judge William Pryor, concurring in the Eleventh Circuit's decision to implement a saving construction and find that a residual clause in the Armed Career Criminal Act defining the term "crime of violence" is not unconstitutionally vague (as the Supreme Court has held other similarly worded residual clauses to be). Judge Jill Pryor dissenting: It's up to Congress to save it.
- In 2008, Frederick, Md. sheriff deputies espy woman sitting on curb eating a sandwich before work, demand identification. She provides El Salvadoran ID, and the deputies discover she has an outstanding immigration warrant, so they arrest and jail her. Fourth Circuit (2013): Unconstitutional seizure. But back to the district court to determine whether the deputies' actions were official gov't policy. District Court (2018): They were! The county (plus its sheriff and deputies) are liable for the constitutional violations.
- And in en banc news, the Third Circuit will reconsider its holding that TSA screeners are not law enforcement officers and so are immune from suits over intentional torts—in this case, fabricating criminal charges. (We discussed the original panel decision on the podcast.) The Ninth Circuit, however, will not reconsider its decision to deny qualified immunity to San Jose, Calif. officers who allegedly forced Trump supporters to exit a rally through a violent crowd of anti-Trump protesters.
This week, the Institute for Justice and Texas veterinarian Dr. Ron Hines stepped into the ring with the state vet board to defend free speech for the second time. IJ and Ron first mixed it up with the board back in 2013 when it forbade Ron—retired and disabled but still eager to help animals—from giving advice to pet owners around the world via the internet. Ron argued that professional advice is protected speech, but the Fifth Circuit disagreed, ruling that his emails were occupational conduct akin to welding or surgery. But the U.S. Supreme Court weighed in over the summer in a different case, making clear that professional advice is fully protected speech and not outside the First Amendment. Click here to learn more.