Short Circuit: A Roundup of Recent Federal Court Decisions

Hard seltzer, full parmesan, and the Border Wall.


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.

NEXT: Happy Hanukkah from the Nation's Capital

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  1. I’m sorry, but all of this is moot.

    We no longer have laws in this country — SCOTUS abolished them today, SCOTUS crossed the Rubicon and all of this stuff is now irrelevant…

    1. Even you cannot be this dumb.

      1. There’s less evidence to support that than there is to support the claim that there was election fraud.

        1. I’m conflicted. Is the most tiresome part of this where you confuse denial with evidence not existing? Or the part where you confuse courts refusing to take cases with rulings against us on the merits?

          Come to think of it, on a deeper level the’re actually the same thing.

          1. Name one case that was decided on the merits and not dismissed on a technicality.

            1. Name a case that had merits. Trump appointee Judge Stephanos Bibas: “The Campaign’s claims have no merit.”

            2. ExtremeIANAL, but even I know you can’t just file a paper that says “I want to have a lawsuit so make that guy do things my way right now!”. If you want the court to issue an order you have to make some kind of initially plausible argument that (a) their behavior is even your business, and (b) you’ve got some chance of being in the right.

              Those aren’t technicalities.

            3. Standing isn’t a technicality
              Laches isn’t a technicality
              Standards for injunctive relief aren’t technicalities

              1. They are to Joe Sixpack who defines “arrest” in terms of “handcuffs.”

                Joe Sixpack thinks in terms of crime & punishment — crimes were committed but not punished. Vigilantism comes next.

                And, at the very least, this whole sordid affair, starting with the Steele file, is going to discredit the legal profession as much as Watergate did.

                1. Joe Sixpack is a figment of your fascist imagination.

            4. 1) No cases were dismissed on a “technicality.” “You don’t have standing to bring this claim” is not a “technicality.”
              2) What I think you mean is that the federal cases were primarily decided on procedural grounds. That’s mostly true, but the state cases were primarily decided on substantive grounds. And rejected Trumpkin arguments.
              3) The case decided just yesterday in U.S. District Court in Wisconsin was also decided on substantive grounds, and rejected Trumpkin arguments.
              4) You realize that in only a couple of suits did the plaintiffs even allege fraud, right? For the most part, they themselves alleged only procedural issues, like whether the use of lockboxes was permitted, or whether a clerk could fill in the address on an envelope.
              5) Your response is irrelevant to my comment; I didn’t mention the courts. I said that there was no evidence of fraud.

          2. What’s tiresome is you never once acknowledging in all of your many many many appeals to the majesty of the law that these cases are being tossed out precisely because the courts are following the law.

          3. I’m conflicted. Is the most tiresome part of this where you confuse denial with evidence not existing? Or the part where you confuse courts refusing to take cases with rulings against us on the merits?

            No. The most tiresome part is where you lie and say laws were violated, even after people explain to you that you don’t understand the law. (Note that it’s neither true nor relevant. “Wisconsin isn’t supposed to use drop boxes for ballots” is not a valid statement of Wisconsin law, and “Election clerks can’t allow people to correct errors on their VBM ballots” is not a valid statement of Pennsylvania law, but more importantly both are also irrelevant to whether there was fraud.)

            (The only actual evidence of “fraud” involves the Kraken filings themselves, which relied on falsified affidavits.)

      2. Andrew Jackson could mot have said “John Marshall has made his decision, now let’s see him enforce it” without widespread populist support for such an attitude.

        Bite Me & Her Arse clearly got away with stealing an election, and Joe Sixpack is supposed to maintain his respect for courts or the legal profession?

        1. The theft of the election started well before November. It started with the changes in election laws by law Hillary’s Lawyer who was also responsible for the baseless Steele Dossier. It continued with four years of hoaxes, lies, and cover-ups by Democrat News, it continued with Social Media Companies choosing what people saw and selectively choosing who to encourage to vote. Violence was carried out & encouraged by Democrats for months. You can not safely have a Trump sign out or walk down the street with a MAGA hat. This election was neither free nor fair, and it had nothing to do with the voting process.

          Biden called for pole watchers and was lauded by Democrat News. Trump called for pole watchers and was excoriated by Democrat News. Democrat News perpetuated a hoax that Trump said injecting bleach would treat Coronavirus. Democrat News refused to cover Hunter Biden’s laptop with hard corroborated evidence but published baseless allegation against trump for years. This election was neither free nor fair

          1. That doesn’t mean the vote itself was not free and fair, right? I agree with you that a lot of people disliked Trump and actively used their influence to cause Trump to lose … thats how elections work.

            Remember 2016? I’m sure Hillary Clinton can make similar claims to how she was tarred and feathered by the media … a lot of her dealings were true, but a lot was made up hype.

            Biden won. You might say social media interfering was dumb. Heck I agree. But that doesn’t mean the election gets overruled. We have had nastier elections. Hell Thomas Jefferson v John Adams was nastier …

            Trump had a platform to promote the Hunter laptop thing on the debate stage. He did! The fact that no one believed him is entirely his fault, and has nothing to do with the media. Twitter blocking the story was stupid. But I doubt it made a difference. Biden could have just as easily gone after Trumps family. He didn’t.

            Because if you think going after someone’s family as a way to win an election is a great thing it isnt. Maybe it was unfair how Trump was limited in that respect.

            But, the relentless focus on conspiracy theories and scandals is overall a negative for this republic. Trump refused to talk about the issues because he didn’t know anything and the republican party did not publish a platform. Complaining that you couldn’t harp on the latest scandal … I mean fine, it wasn’t fair and the social media companies should have handled it better, but come on.

          2. Hell you could have said social media companies blocked information about reopening schools, and not only did that undermine Trump it destroyed the education for millions of kids, all to make Biden win. You could have said that good vaccine news was constantly being undermined, which not only is anti-science it will kill people, and all for Biden to win.

            And those would be excellent arguments! But there is this constant focus on scandal and stupidity … you think, with the lockdowns, shutdowns, virus deaths, that the Hunter Biden thing matters? You can talk about the refusal of some (not all) to focus on the chaos engulfing american cities. Governors are pretending the bill of rights does not exist, and your focusing on this? Really?

            Biased media arguments would be a hell of a lot more effective if you actually focused on true events where the “biased media” had direct harm on the livelihoods of millions of people.

            1. That doesn’t mean the vote itself was not free and fair, right?

              Agreed, but that’s not what I’m arguing. I’m arguing the lack of a free and fair election. I am not arguing that Biden lost the vote, I am not arguing for overturning the vote. I am arguing the lack of a free & fair election. Will you acknowlege that is a fact?

              The media repeatedly said the Hunter Biden story was baseless and refused to even acknowledge it. The media has repeatedly gone after Trumps family. And the Hunter Biden story implicates Joe Biden directly as what would be the reason for paying Hunter if not to get to Joe’s influence.

              Governors are pretending the bill of rights does not exist, and your focusing on this? Really?

              What makes you think I see a difference? All the same, but the topic was the election, not the lockdowns.

              Biased media arguments would be a hell of a lot more effective if you actually focused on true events where the “biased media” had direct harm on the livelihoods of millions of people.

              Thank you for the suggestion, I’ll take this into account when discussing the media bias.

          3. Just to pile on to what Aladdin said:

            All of the following actions are valid choices in a democratic election where people have freedom of speech and freedom of the press. They *do not* make the election illegitimate or stolen.

            1. People having access to media saying mean, wrong, or even outright lies about your favorite candidate.
            2. People having access to media that have hidden agendas, hidden support, or are even foreign controlled.
            3. Orders of magnitude difference in how much time and money is used to spread various opinions and stories.
            4. Voters deciding to believe and base their vote on (1).
            5. Voters deciding to believe and base their vote on (2).
            6. Voters being swayed by (3).
            7. Voters deciding to vote for obviously unfit or even criminal candidates.

            That’s all stuff people are allowed to do, and it all applied in 2016, 2020, and every other election.

            1. When the media source claims to be fair and is actively partisan and hides it I object. When the media intentionally hides facts from people because it doesn’t support their candidate, I object. When the media outright lies about what a politician says, and people act on those lies and wind up in the hospital (bleach hoax) I sure as hell object.

              They *do not* make the election illegitimate or stolen.

              There are internationally agreed upon requirements for a free & fair election. The US did not meet them in 2020. Just because the vote was not fraudulent, does not make it legitimate.

              1. The media not covering the negative stories you want them to doesn’t make the election unfree.

                As was pointed out above, that standard makes every election ever unfree under someone’s definition.

                Moreover, how would you propose to ensure a free election and maintain freedom of the press?

                The solution to a media that isn’t getting the message you want across is for you to get that message out.

              2. The U.S. met them in 2020.

        2. Is a made up archetype used to promote traditionalist values supposed to respect the legal profession? I guess not?

          1. Not when the law is an arse.

    2. SCOTUS ruled the way it did precisely because we have laws. Some of which involve limiting the authority of the Court to rule for the plaintiffs in this instance.

      1. That may be true (but explain MA v. EPA) but when you have a wrong this grievous and no means of redressing it, the credibility of the law itself becomes null.

        1. There’s no wrong.

  2. The “Kraken” link is broken or invalid.

    1. All the m.ij links seem broken.

      1. Or maybe not. Apparently my browser decided to stop telling me it was downloading anything, or that it was done.

  3. If we can have some discussion on the actual article. The first point mentioned actually touches upon the most important matter at hand. When standing is interpreted extremely strictly, a great number of actions become essentially unchallengeable. How can we have a system of laws when the courts deliberately prevent themselves from reviewing acts on a basis that essentially no one has the right to challenge them?

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