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.
This week, the Supreme Court, in an opinion penned by Justice Thomas, ruled unanimously that money damages are an appropriate remedy when federal officials violate individual rights, especially when no other remedies are available. In addition, Justice Thomas, just like Justice Joseph Story two centuries before him, emphasized that it is the job of Congress, rather than courts, to engage in policy making, even in the context of damages remedies against government officials. Read more here.
- After Congress declined President Trump's request for $5.7 bil to construct 234 miles of border wall, the President declared a national emergency—allowing the administration to fund construction of the wall with money originally dedicated to other purposes, including $20 mil set aside to fund road construction at Fort Bliss in El Paso County, Texas. The county sues, alleging that the accounting shenanigans are illegal. Fifth Circuit: But the county lacks standing; the generalized threat to its future tax revenue is insufficient to create an injury-in-fact. Dissent: Under the majority's standing analysis, "it is difficult to imagine a plaintiff that could challenge transfers like the ones at issue here, no matter how unlawful."
- An IP tizzy from fizzy drinks "Brizzy" and "Vizzy" keeps the Fifth Circuit busy. But the district judge isn't dizzy. Or is he?
- Do those green tubes that say "100% Grated Parmesan Cheese" violate consumer-protection laws when four to nine percent is preservatives and anti-caking agents? 100% plausible, holds the Seventh Circuit. Lawyers can find ambiguities in everything, but everyday shoppers don't need to do statutory interpretation at the grocery store. Dismissal on the pleadings reversed.
- Idaho keeps amending its sex-offender registration law to apply to more conduct and to make it harder to have one's name removed from the registry. On top of that, it makes all these changes fully retroactive, meaning the people who were once not required to register—or who were eligible to have their names removed from the registry—may now find themselves swept up in the amended law. An unconstitutional ex post facto law? Ninth Circuit: Might be. The case goes back down. Dissent: The plaintiffs' briefing was so incomprehensible that these claims weren't properly preserved.
- Rent control ordinances may be inconsistent with the law of supply and demand, but—per the Ninth Circuit—San Jose, Calif.'s newly enacted reporting requirements for landlords of rent-controlled units are not inconsistent with the Fourth Amendment, the Fifth Amendment, the Fourteenth Amendment, or the Contracts Clause.
- In which the Eleventh Circuit deploys a combination of Article III standing and mootness to surface the roaring Kraken.
- And in en banc news, the Fifth Circuit (over the dissent of 8 of 17 judges) will not reconsider its decision that an 1987 amendment to the education clause of the Mississippi Constitution violates an 1870 federal law readmitting Mississippi to the Union.
- And in further en banc news, the Eleventh Circuit will (sua sponte) reconsider its decision that manufacturers of custom orthodontic trays can proceed in their antitrust suit against the Georgia Board of Dentistry.