The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy

Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Non-citizen soldiers, habeas runarounds, and all federal law.

|

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

State courts often follow bad federal precedent in interpreting their own state constitutions. How best to litigate against this? Over at the Brennan Center's State Court Report, IJ's Anthony Sanders suggests that lawyers should make originalist arguments using their own states' history. Even if they're not originalists themselves.

New on the Short Circuit podcast: Jury trial rights and a very general search.

  1. In 2017, the Trump administration put the brakes on the expedited path to citizenship that's been available to non-citizen soldiers since World War I. After the district court strikes down some of the changes, the Biden administration rescinds the policy (while continuing to litigate the case and formulating a new policy that never materializes). Trump II administration: We're bringing the policy back, and we want to appeal the district court's opinion. D.C. Circuit: No can do. The case is moot, and also, since the recission was not an attempt to evade judicial review, the district court's opinion is vacated.
  2. If you want to pilot commercial vessels on the St. Lawrence Seaway, you need a license from the Coast Guard. The Coast Guard, however, has fully turned over its licensing authority to a private, for-profit business. When one captain—who has completed a lengthy apprenticeship but not yet received his license—raises concerns that the business is mismanaging its financial affairs, he's blackballed on a variety of pretexts. He sues the Coast Guard, arguing, among other things, that delegating its regulatory authority to a private business is unconstitutional. D.C. Circuit: And we won't get to the merits of any of it because we're not sure he completed the training, even though he did the exact same training as everyone else who received licenses. (This is an IJ case.)
  3. Over a dissent from Justice Breyer, the First Circuit says a federal prisoner in New Hampshire who complains of intolerable knee pain cannot sue prison officials for deliberate indifference to his medical needs. Because knee pain is an entirely different context than untreated asthma.
  4. On March 25, six plainclothes law enforcement officers arrested Massachusetts graduate student Rümeysa Öztürk, allegedly based solely on an op-ed she co-authored more than a year earlier. By the time her lawyer filed a habeas petition, she'd been driven across the border to Vermont. But when the gov't disclosed her location nearly 24 hours later, she'd been moved to Louisiana. The Massachusetts district court transferred the case to Vermont, which orders the feds to return her to Vermont. The feds seek an emergency stay. Second Circuit: Denied. Bring her back.
  5. Under current precedent, a probationer is entitled to two hearings when facing probation revocation: a preliminary hearing to decide whether there is probable cause to believe he violated conditions of his probation, and a revocation hearing to decide whether his probation will be revoked. Does due process require a finding that detention is necessary (to prevent flight or danger to the community) before someone can be detained between the two hearings? Third Circuit: The Supreme Court said that probable cause was sufficient, so its deliberate choice not to add a necessity requirement means that we can't. Partial dissent: Detention pending final revocation hearing wasn't at issue at the Supreme Court, so the statement is dictum that we don't have to follow.
  6. New Jersey mother learns that her son was exposed to instructional videos about Islam as part of his social studies curriculum. As one does, she sues, alleging that this violates the Establishment Clause. Third Circuit: It does not. Concurrence: It so completely does not.
  7. If you've been itching to send graphic pictures of aborted fetuses to your coworkers in the Fifth Circuit, have we got some great news for you.
  8. How long must a motion for an injunction flounder upon a district judge's desk before it is "constructively denied," allowing the movant to appeal (here, Amazon seeking relief from some NLRB rulings)? Fifth Circuit: See, the thing is, it depends. Dissent: See, the thing is, it depends.
  9. New Orleans judge tells pretrial criminal defendants to pay up to $300/month to a private, for-profit ankle-monitoring company or stay in jail. Judge does not tell defendants that the company is owned by his former law partner, who regularly donated to the judge's judicial campaigns (including an unpaid loan). Judge also does not tell defendants that other companies are available. Judge does, however, threaten jailing at the company's behest solely for failure to pay. Fifth Circuit (unpublished): This fails to plausibly allege a due process concern. (This is an IJ case.)
  10. When Rodney Reed first tried to challenge the constitutionality of Texas's postconviction DNA-testing procedures, the Fifth Circuit held his claim time-barred. Supreme Court (2023): Wrong. Fifth Circuit (2025): Point taken. So, not time-barred. But Texas's postconviction-DNA statute isn't unconstitutional, so Mr. Reed is out of luck.
  11. There's something in the water in Michigan. Specifically, dangerous quantities of lead in the city of Benton Harbor's drinking water. Plaintiffs claim that city officials lied to cover up the extent of the problem and made no serious efforts to actually fix it—leading them to continue to drink contaminated water and get sick from it. Sixth Circuit (over a partial dissent): That is sufficient to survive a motion to dismiss on a claim that the city officials violated the right to bodily integrity protected by the Fourteenth Amendment.
  12. After the Sixth Circuit (2021) denies habeas to Kentucky man sentenced to death for a 1985 murder, he petitions for rehearing en banc, which is also denied. But then a member of the original panel majority takes senior status and is replaced by judge who votes for rehearing. And so, Sixth Circuit (2024): Habeas granted. The man's lawyer failed to present evidence of severe abuse he suffered as a child, so maybe life imprisonment for him instead. This week, however, by a vote of 13 to 4, the en banc Sixth Circuit reinstates the death penalty, noting that his mitigating evidence was heard in full in a different murder case that was part of the same crime spree, and he was nonetheless sentenced to death.
  13. After a jury awards $45 mil to man wrongfully imprisoned for decades, a federal judge finds that Miami Twp., Ohio is on the hook to indemnify the detective who bungled the investigation. Township: The state law requiring us to indemnify violates due process, equal protection, and the Supremacy Clause. Sixth Circuit (unpublished): No need to get into that. You brought it up too late.
  14. A third grader in Durand, Mich. wears a "COME AND TAKE IT" hat with an AR-15 outline to school just three months after the tragic shooting at nearby Oxford High, and her school—now hosting several transferees from Oxford's school district who are still in therapy—tells her to stash the cap in her locker. Her dad sues. Sixth Circuit: Tinker lets schools head off speech that's reasonably forecast to disrupt the classroom; these classrooms include eight-year-olds processing a recent, nearby massacre. No First Amendment violation, and QI would protect the officials anyway. Affirmed.
  15. "Plaintiff Eric Ollison was a victim of an appalling failure to provide needed medical care at an Illinois prison. His chronic kidney disease was eminently treatable, but systemic failures in prison health care put him on life support and caused permanent brain damage and physical injuries." Which is exactly the sort of line a litigant likes to see in a majority opinion. Too bad it's the first line in the dissent to this Seventh Circuit ruling.
  16. Wisconsin prisoner has what he describes as a consensual sexual relationship with prison nurse, then proceeds to sue her for violating his right to be free from cruel and unusual punishments. Seventh Circuit: Unquestionably deplorable behavior on the nurse's part, given the power disparities. But an Eighth Amendment violation it is not.
  17. Allegation: After administrator openly criticizes the University of Arizona president's decision to hire a close personal buddy to a leadership role he is entirely unqualified for, the buddy launches a campaign of harassment against and ultimately fires … the administrator's husband, who also worked at the school. (The administrator had resigned). Ninth Circuit: Qualified immunity. We've never held the First Amendment protects against retaliation over a family member's speech. Concurrence: Seems like we ought to, though. This comes up a lot.
  18. Federal prisoner in Washington State gradually accumulates a substantial amount of money in his inmate trust account—gifts from family and friends. He owes over $35k in restitution, however, so officials dip into his account to pay the victims of his crimes. Prisoner: They're only allowed to take sudden, substantial windfalls, not accumulated savings. Ninth Circuit (over a dissent): No, it's fine.
  19. South African minister's visa application is denied after a consular officer learns he's to be paid by the Albuquerque, N.M. church where he'll preach (and indeed he'd already been paid during a previous visit). Which is a problem because the visa in question doesn't allow for paid work. But wait! The church's doctrine requires that ministers be paid, and the Religious Freedom Restoration Act, which protects such sincerely held religious views, "applies to all Federal law." Tenth Circuit: All federal law doesn't include visa-denial law, so the consular nonreviewability doctrine means we can't review the denial. Dissent: Seems like "all" means "all"?
  20. A man freely chats with officers about his involvement in a riverside gunfight, admitting that he fired shots during the attack. Two years later, at trial, he claims that his participation was under duress; the prosecutor reminds the jury that this defense is a "brand-new story" told for the first time at trial. The man is convicted. Tenth Circuit: And that's a Doyle violation. Can't use his post-arrest silence about duress (even though it was rather selective silence given that he, um, confessed to the shooting) to suggest an inference of guilt. Convictions vacated and remanded.
  21. Panama indicted its former President Martinelli on corruption charges in 2015, when he was living in Miami. He was extradited and then acquitted of four charges. Displeased, Panama charged him with money laundering for crimes that occurred before his extradition but were not listed on Panama's extradition request. (He's convicted of one charge.) But wait! Doesn't that violate the extradition treaty between the two countries? U.S. officials: No, the treaty no longer applied once he was acquitted. The prez sues said U.S. officials. Eleventh Circuit: He lacks standing to sue.
  22. Rockdale County, Ga. property owner spends over 20 years seeking—but not obtaining—permission to build a truck stop. Eleventh Circuit (unpublished): But he can't bring a takings claim yet because he hasn't applied for a variance to the county's most recent zoning ordinance, which was adopted specifically to bar his truck stop.
  23. And in en banc news, the Seventh Circuit will not reconsider its decision that an Illinois law professor validly alleged that his First Amendment rights were violated when he was suspended and denied a raise for using an "expurgated racial slur" in a law school exam. Judge Easterbrook writes separately to explain how dumb he thinks the idea of academic freedom is, and how dumb the university is for not also making this argument.

On May 15, SCOTUS watchers will tune in for oral argument in the challenges to the birthright citizenship executive order. What's really at issue, though, isn't birthright citizenship itself but "universal injunctions." At The Unpopulist, IJ's Anthony Sanders argues that there are some relatively minor administrative problems with nationwide injunctions, but that doesn't justify ditching universal injunctions against any government defendant altogether. Don't throw the baby out with the bathwater, especially in a case about babies.