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.
Usually, occupational licensing is a one-way ratchet: States impose licensing but almost never repeal it absent a court order. A study published in 2015 by the Bureau of Labor Statistics, for instance, found just a sparse handful of examples of occupations being de-licensed in the prior 40 years. Which is why last week's announcement that Florida is repealing or relaxing licensing restrictions on 30 occupations, including hair braiders, interior designers, and makeup artists, is truly historic and completely awesome. Click here to read more.
- For years, the D.C. Circuit has allowed FERC to avoid judicial reviews of its certificates by granting "tolling orders" that allow pipeline projects to move forward while avoiding a final decision that triggers judicial review. But now the D.C. Circuit, sitting en banc, calls a halt to these shenanigans. Judge Griffith, concurring: But watch out for all these other shenanigans that we're not stopping yet!
- Federal law gives the FDA power to regulate tobacco products for the public health, but only after considering whether the regulation would likely increase or decrease the number of smokers. Do new warning labels for cigar and pipe tobacco make the cut? D.C. Circuit: Since the agency itself states that "reliable evidence on the impacts of warning labels … on users of [tobacco products] does not, to [its] knowledge, exist," no, the labels do not.
- Investigative reporter applies to district court to unseal various court orders related to electronic surveillance. When negotiations with the gov't over what should be unsealed break down, the court steps in, concluding that it would be too administratively burdensome to unseal the bulk of the requested documents. D.C. Circuit: Remanded. "Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all."
- According to the relevant case law, the CIA need not confirm or deny the existence of records about its covert activities if the very acknowledgment that they exist would shed light on sensitive national security matters. But what if, say, the president tweets about those activities? NYT: Then records responsive to our FOIA request about U.S. funding of Syrian rebels must exist; at the very least, the CIA must give us a list of them. Second Circuit (over a dissent): No, no.
- Dominican green card holder pleads guilty in Pennsylvania state court to possessing marijuana with intent to deliver. The feds move to deport him in December 2017. Since then, he's been in jail, confined to his cell for 23 hours a day, with no end in sight. A due process violation? Third Circuit: Yes. The delay isn't either side's fault, but it's too long. The gov't must hold a bond hearing and prove that he's a danger or a flight risk.
- Motorist leads police on high speed chase, surrenders by lying down next to his car. A Childress County, Tex. officer forgets his training, begins handcuffing the suspect before holstering his gun. He shoots the motorist in the shoulder. Fifth Circuit: Which was unintentional, so qualified immunity.
- Allegation: The day after losing election, state judge asks Collin County, Tex. prosecutors to investigate the challenger who beat him and "find a crime." They do and enlist the state attorney general's office to help prosecute the new judge on bogus bribery charges, obtaining a now-vacated conviction. Can the judge sue the prosecutors? Fifth Circuit: One of them, yeah.
- Allegation: When inmate attempts to file grievance about potential exposure to COVID-19 at Oakland County, Mich. jail, he's sent to "the tanks," where he shares a small, rat- and insect-infested cell with nine other inmates; they all sleep on the concrete. Separately, when court-ordered inspectors came to the jail, the guards wore masks (that they have since ceased wearing), giving a false impression of how seriously they're taking the pandemic. Sixth Circuit (over a dissent): The district court's preliminary injunction ordering the jail to implement a variety of sanitation, social distancing, and testing procedures is vacated. The jail's response to the pandemic may be unreasonable, but it's not reckless.
- Michigan officials' intent to strictly enforce ballot signature requirements despite a now-expired stay-at-home order might well violate the First Amendment, says the Sixth Circuit. So proponents of a ballot measure (that would restore a good time credits system for state prisoners) that gathered 215k signatures, instead of the requisite 347k, may yet see it put to voters.
- Proponents of several proposed ballot measures in Illinois are out of luck, however, says the Seventh Circuit. Firstly, the only one who has standing didn't begin his efforts until 17 months of the 18-month window for signature gathering had elapsed. But also, the state's social distancing orders regulate conduct, and any impact they have on speech is incidental. And further, if state officials want to cancel referenda this year in light of the pandemic (which they haven't stated explicitly but which reasonably might be inferred), that's not a federal problem.
- Man sues Missouri company, alleging that it withdrew his job offer after learning he was gay. District court: Dismissed. Eighth Circuit: Dismissal may have been correct under our old precedent, but the Supreme Court's recent decision in Bostock v. Clayton County means our old precedent is no longer good precedent. So back to the district court the case must go.
- Police tackle man (wanted for assault that left victim in a coma) who might have a gun in his pocket. Five officers pin him down, beat him, and choke him when he resists handcuffing. District court: Qualified immunity for all of the officers except a sixth one who allegedly stomped on the man's ankle, breaking it, though the other officers had him substantially under control. Eighth Circuit: Qualified immunity for him, too.
- In July 2019, the feds adopted a new rule that denied asylum to basically everyone arriving at the border with Mexico unless they had first applied for asylum, and been denied, in Mexico or another country through which they traveled. In support of the regulations, the feds point to two existing laws that deny asylum to people who have access to asylum in a safe third country or who have firmly resettled in another country before coming to the U.S. Ninth Circuit: Nope. The new rule takes no account of whether the countries through which asylees have passed are safe, nor can it be said that asylees passing through Mexico have firmly resettled in that country.
- Horses vanished from North America 10,000 years ago only to be reintroduced by the Spanish in the 1500s. Vast numbers—about 2 million—of castoffs and runaways roamed free by the early 1800s, competing with livestock for grass and water. Ranchers and gov'ts have sought to limit their numbers ever since. Plaintiffs: The feds' recent plan to geld and release wild horses in northeastern Nevada will have a deleterious impact, altering their behavior and messing up herd dynamics. Ninth Circuit: That's just speculation; there's no study to back it up. Geld away.
- Law enforcement can lie to you during an interrogation—but lying about having a special relationship with the judge goes too far, holds the Tenth Circuit. So a man's confession to an FBI agent that the meth was his (which led to a 15-year sentence) is suppressed.
- Man shoots and kills two men in Albuquerque, N.M. Buying his self-defense argument, a jury acquits him, after which he sues the officer who submitted the affidavit for his arrest warrant. Allegation: The officer violated my Fourth Amendment rights by making no mention of surveillance footage that clearly showed I was acting in self-defense. Tenth Circuit: The footage showed nothing of the sort, and there's no reason to think the officer acted recklessly by omitting it.
- And in en banc news, the Fourth Circuit will not rehear a decision holding that it's structural error for a court to let a defendant plead guilty to violating 18 U.S.C. § 922(g)(1)—the felon-in-possession-of-a-firearm law—without first confirming that the felon in fact knew he was a felon at the time he possessed the firearm. ::takes deep breath:: Judge Wilkinson, concurring, agrees that the case shouldn't be taken en banc—but only because en banc review would delay a Supreme Court smackdown.
Montana bans doctors from dispensing medications directly to their patients (unless they practice more than 10 miles from a pharmacy). The only thing this ban does is protect pharmacies from competition. Indeed, most states allow doctor dispensing, and research shows that it is equally as safe as dispensing via pharmacies. That's why last month doctors Carol Bridges, Cara Harrop, and Todd Bergland joined forces with IJ to challenge the ban under the Montana Constitution, which bars the state from imposing irrational and protectionist rules on businesses and from creating unreasonable distinctions between similar groups, like doctors and pharmacists. Click here to learn more. Or click here for The Wall Street Journal's take.