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, today the Supreme Court will consider whether to grant cert to a case of towering importance and keen historical interest. We refer of course to Courtney v. Danner, which will give the Court the chance to breathe some life back into the Fourteenth Amendment's long-neglected Privileges or Immunities Clause. George Will has the story over at The Washington Post.
This week, the folks over at the Undisclosed podcast, who are digging into a cold case investigation that quite possibly put an innocent man in prison, were kind enough to have IJ's Anya Bidwell as well as your own humble editor on their show to talk about our show.
- After an ESPN article alleges that the head of a nonprofit meant to assist veterans is using the group's money for, for instance, a plane ticket for her son and an advance of $22k to buy Moroccan rugs, the IRS takes an interest, even sending an agent to the woman's child-custody hearing the next month to learn more about her finances. She's prosecuted, but the jury can't reach a verdict thanks to one holdout juror. The jury returns deadlocked three separate times, and each time the judge sends them back with instructions to keep trying. His instructions are modeled after, but not identical to, the standard instructions. A little more than an hour after the third somewhat ad-libbed instruction, the jury reaches a verdict—guilty on all counts. D.C. Circuit: Those instructions likely coerced the lone holdout. New trial.
- When the Shawnee Tribe sued to challenge the methodology used by the Treasury Secretary to distribute coronavirus relief funds to state and tribal governments, the district court dismissed on the ground that the distribution of funds was a matter of agency discretion and thus not reviewable in court. D.C. Circuit: Nope. The CARES Act says that funds must be distributed "based on increased expenditures . . . relative to aggregate expenditures," and the district court can review the Secretary's methodology under that standard.
- Back in 2017, CNN sued under the Freedom of Information Act to access memos written by former FBI Director James Comey following meetings with President Trump. Following a series of public disclosures and court rulings, the sole remaining issue in the case is whether FBI can continue to redact forty-some words from a declaration that it filed in district court in order to justify redactions from the Comey memos. D.C. Circuit: The declaration was filed in court to influence a judicial decision and, thus, is a judicial record. There is a "strong presumption" in favor of disclosure of judicial records, but that presumption is not absolute. Here, we're not convinced the public has much interest in the redacted parts of the declaration (as distinct from the information that has already been disclosed) and we see serious national security concerns with ordering disclosure. The district court can weigh all that on remand.
- Ramapo, N.Y. school district contains 29,279 (mostly Jewish) students attending private schools and 8,843 (mostly black and Latino) students attending public schools. Claim: The district's at-large election system has resulted in a school board that systematically favors the interests of the private schools, and thus violates Section 2 of the Voting Rights Act by denying or abridging the right to vote on the basis of race. Second Circuit: Plaintiffs are not required to prove racial animus, and have prevailed by showing that minorities have less opportunity to participate in the political process. Given the near-perfect correlation between race and school-type, we agree with the district court that the election results here are caused by race and not policy preferences.
- Allegations: Prisoner in Raleigh, N.C. prison twice head-butts guards. Each time, the guards fully subdue him and then gratuitously pepper spray him (the first time) and muscle him into a supply closet and beat him (the second time). Excessive force? District court: No reasonable jury could find that the officers acted in anything but good faith. Case dismissed. Fourth Circuit: Case un-dismissed; a jury should decide whether the officers acted in good faith or maliciously. Also, no qualified immunity. (Postscript: shout-out to the UVA law students who briefed and argued the prisoner's appeal.)
- In November, Toledo, Ohio-area health officials closed every school in the county while letting gyms, tanning salons, office buildings, and the Hollywood Casino stay open. Parochial schools sue. A Free Exercise Clause violation? District court: Probably no; preliminary injunction denied. Sixth Circuit: Probably yes; injunction pending appeal granted.
- Indiana law (as interpreted by its Supreme Court) requires Indiana residents to register as sex offenders for certain offenses committed after July 1, 2006, but not if those offenses were committed prior to that date. But new arrivals to Indiana (even those who previously were Hoosiers before 2006) who had to register as a sex offender in another state do have to register in Indiana, even if the offense was committed before July 1, 2006. According to the Seventh Circuit this implicates the right to travel, protected by the Privileges or (yes, "or") Immunities Clause of the Fourteenth Amendment, and can't survive strict scrutiny. Dissent: Right to travel, smavel. It's rational basis all the way down.
- Man flips New Hope, Minn. cop the bird as he drives past. She pulls him over; he repeatedly declines to hand over his license and insurance. As the situation escalates (with much yelling and cussing from both), she orders him out of the car, handcuffs him, and he finds himself in a seven-minute "timeout" in her squad car. She eventually cites him and sends him on his way. First or Fourth Amendment violation? Eighth Circuit: Might could be. Qualified immunity wasn't appropriate for the seizure and retaliation claims. Dissent: The man's offensive conduct isn't protected speech.
- From the 1960s through the 1990s, multiple school districts in Arkansas entered into federal consent decrees to desegregate public schools. In 2017, Arkansas passed school choice legislation that allows students to transfer to schools in other school districts, which is not prohibited by the consent decrees. The school districts head to court, seeking modification of the decrees. Eighth Circuit: Granted; these transfers weren't permitted under state law at the time of the consent decrees, but the decrees totally would have prohibited them had they been allowed at the time. Dissent: That is not how modifying consent decrees works.
- Des Moines, Iowa police officers, upon seeing a man filming illegally parked cars next to their police station, surround him for a friendly chat. When he refuses to leave, they tell him he's under arrest, force him against a truck, pat him down, and seize his camera and phone before telling him he is free to go. He sues, alleging violations of the First and Fourth Amendments. Eighth Circuit: Qualified immunity for the initial stop; cars had been vandalized in the area, and someone recording the police had recently killed two officers. No qualified immunity for the arrest, though.
- Arkansas law prohibits abortions when the fetus is more than 18 weeks' gestation or when the provider knows that the woman is seeking the abortion solely on the basis of a belief of Down syndrome (both subject to exceptions for a medical emergency or if the pregnancy is a result of rape or incest). Precedent says gov't can't prohibit pre-viability abortions, so these bans are unconstitutional, says an uneasy Eighth Circuit, with two-thirds of the panel writing separately to urge the high court to revisit the precedent. Judge Shepherd: "[B]ecause we must apply the ill-fitting and unworkable viability standard to an act aimed at preventing eugenics-based abortions unless and until the Supreme Court dictates otherwise, I concur."
- In October 2019, President Trump issued a proclamation banning immigrants from entering the country unless they had or could get health insurance—lest they become a public charge. Ninth Circuit (May 2020): No need to stay a preliminary nationwide injunction against the rule; the "normal" appeals process shall play out. Ninth Circuit (this week): This proclamation was within the President's power to make, universal injunction vacated. And as no injunction should have been granted there is no need to address whether the nationwide scope was appropriate.
- In response to COVID-19, Congress provided for emergency allotments to Supplemental Nutrition Assistance Program (SNAP) participants to help address the temporary food needs. The problem? The statute is ambiguous as to whether it allows for additional funds to bring everyone up to the usual maximum allotment or whether allotments can now exceed the usual maximum. Ninth Circuit (over a dissent): It is ambiguous, but responses to previous crises suggest that you can still only get up to the maximum allotment.
Houston is known nationwide as a zoning-free city. And its residents have voted time and again to keep it that way. But Houston's overzealous central planners are persistent. To override the wishes of their citizens and accomplish their zoning objectives, they have resorted to using so-called "historic designations" that look, act, and feel like zoning. But is zoning by another name not zoning? And does the Texas Constitution still provide meaningful protections for property rights when municipalities have other goals? The Texas Supreme Court considered both of these questions this week in the case of Powell v. Houston. Click here to read an IJ amicus brief that reminds the Texas Supreme Court that the Texas Constitution has historically provided vast protections for property rights that are rooted in natural law.