1/31/2006: Justice Samuel Alito takes oath.
Today in Supreme Court History: January 31, 2006
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Free Speech Unmuted: Free Speech, Private Power, and Private Employees
My cohost Jane Bambauer and I discuss state laws that protect speech against private universities and private schools, private commercial property owners, private landlords, and—especially—private employers. You can also watch our past episodes:
AP Asked Justice Jackson About Her Inauguration Attire
There was not exactly a denial.
Justice Jackson gave an interview to the Associated Press at the Supreme Court. The biggest reveal is that she takes boxing lessons to get out her frustrations from the conservative justices. Lovely.
Buried deep in the story is a brief discussion about her attire at the inauguration.
Jackson, along with the other eight justices, also was part of the pomp and circumstance at President Donald Trump's inauguration, attracting attention for the white cowrie-shell necklace she wore over her judicial robe.
"It happened to coincide with Martin Luther King Day, and I thought I should wear something of cultural significance for that circumstance as well, to honor my heritage on this important day and this important occasion," she said.
The large necklace and earrings had special resonance because the shells have long been associated with African American culture and African heritage.
Um, the lede is buried. These shells didn't simply have resonance with African heritage. They are talismans to ward off evil. Jackson didn't quite deny that fact.
Carry on.
Ban on Town Employees' Displaying Thin Blue Line American Flag Imagery on Town Property Violates First Amendment
From Tuesday's decision in Fraternal Order of Police v. Township of Springfield, decided by Judge Paul Matey, joined by Judge Anthony Scirica, concluding that the policy was unconstitutional:
The "Thin Blue Line American Flag" ("the Flag") is "a black and white American flag." "All of the horizontal stripes are black and white with the exception of one horizontal stripe that is blue." For Plaintiffs it "represents a show of support for [and] a solidarity with member[s] of law enforcement, which includes, police officers." In March 2020, the PBA {Springfield Township Police Benevolent Association} incorporated the Flag into its logo, which it uses at fundraisers, some of which occur on Township property. Individual Plaintiffs wish to continue to display the Flag on both personal and Township property. And the PBA wants to continue hosting events on Township property, displaying its logo and the Flag.
In 2021, Township Commissioners met with the PBA and asked them to remove the Flag from their logo. The PBA declined, and in response, the Township passed Resolution No. 1592 "prohibit[ing] the publicly visible display or use of any image which depicts the Thin Blue Line American Flag symbol by any Township employee, agent or consultant." The Resolution contains three specific prohibitions:
Today in Supreme Court History: January 30, 1939
1/30/1939: Justice Felix Frankfurter takes oath.
Wednesday Open Thread
Playing around with the post time (shifting to the start of the day to midday). "It is an experiment, as all life is an experiment."
Trump "Global Gag Rule" as to Abortion Likely Doesn't Violate the First Amendment
That's because it apparently covers only grants to foreign organizations operating abroad, and a 2020 Supreme Court decision generally held that the First Amendment doesn't apply in such situations.
Friday, President Trump reinstated his 2017 reinstatement of the 2001 President G.W. Bush reinstatement of President Reagan's "Mexico City Policy" (also called by some the "Global Gag Rule") which provides, in relevant part:
The Mexico City Policy announced by President Reagan in 1984 required foreign nongovernmental organizations to agree as a condition of their receipt of Federal funds for family planning activities that such organizations would neither perform nor actively promote abortion as a method of family planning in other nations. This policy was in effect until it was rescinded on January 22, 1993.
It is my conviction that taxpayer funds appropriated pursuant to the Foreign Assistance Act should not be given to foreign nongovernmental organizations that perform abortions or actively promote abortion as a method of family planning in other nations….
The policy restricts the foreign grantees' speech (actively promoting abortion, which includes public advocacy and lobbying of foreign governments) as well as their conduct. Does this violate the First Amendment?
No, the Second Circuit federal court of appeals held in 1990; and it then followed that decision in 2002, in an opinion by then-Judge Sonia Sotomayor:
Harvard Crimson Was Entitled to Ban Commenter for What He Claims Were "Anti-Zionist" Comments
From today's decision by Judge Angel Kelley (D. Mass.) in Affleck v. Harvard Crimson Inc.:
Plaintiff Jonathan Affleck [who has also at times litigated as Joachim Martillo -EV] brings this action against Defendant The Harvard Crimson, Inc…. According to the Complaint, the Crimson … deleted Affleck's comments on three articles on the Crimson's website and then suspended Affleck's ability to post. Affleck claims that the Crimson's actions violated the First Amendment …, [the Massachusetts Constitution's free expression provision], and finally, federal and state laws related to common carriage discrimination and public accommodation discrimination….
According to the Complaint, from February 7 to February 10, 2024, Affleck commented, under two different names, 38 times across three articles on the Crimson's website. The three articles focused on Palestine and the Palestinian people…. [In an earlier case, Affleck] "… represent[ed] that each defendant disabled or suspended his account on their respective platforms because he posted content that each defendant deemed to be anti-Zionist."
The court concluded that 47 U.S.C. § 230 precludes all of Affleck's claims:
Settlement in Heartbeat of Miami v. Jane's Revenge Pro-Life Pregnancy Center Vandalism Lawsuit
The settlement of the civil case follows guilty pleas or convictions in related criminal cases.
The judgment was just entered today, and it provides, in relevant part:
All four Defendants—Caleb Freestone, Amber Marie Smith-Stewart, Annarella Rivera, and Gabriella Victoria Oropesa—are ENJOINED for a period of ten years from coming within 100 feet of the facilities that Plaintiff alleges were victimized in this case: South Broward Pregnancy Help Center in Hollywood, Florida; the Life Choice Pregnancy Center in Winter Haven, Florida; and any of the five facilities owned by Plaintiff. The parties agree to mutual general releases of any claims they may have against any opposing party arising from the same transaction or occurrence as the claims in the operative complaint. Each party shall bear their respective fees and costs.
The clerk must enter a JUDGMENT for the plaintiff and against Defendant Gabriella Victoria Oropesa for $13,000. Defendant Oropesa will pay $1,000 to each of the three facilities (South Broward Pregnancy Help Center, Life Choice Pregnancy Center, and Plaintiff) for a total of $3,000. Defendant Oropesa will pay a $10,000 civil penalty directly to the State of Florida. Defendant Oropesa's $13,000 payment of the civil judgment in the related civil action, No. 8:23-cv-701-SDM-AAS (Related Civil Action), satisfies the judgment in this action. Defendant Oropesa will also, within 30 days of sentencing in her related criminal case, No. 8:23-cr-25-VMC-AEP (Related Criminal Action), send a letter of apology to each facility similar to the apology the other three Defendants made at their sentencing hearing.
White House Rescinds Memo Freezing Federal Grants
This will, for the moment, avert what could have been a major legal battle over the spending power.
Yesterday, I wrote about the Trump Administration Office of Management and Budget memo ordering a "temporary" freeze of a wide range of federal grants, and how it was a major attempt to usurp Congress' power of the purse. Today, after widespread criticism, and a federal court ruling temporarily blocking the order, the White House has rescinded the OMB memo.
At least for the moment, this move averts a major constitutional confrontation over the spending power. It is also an indication that Trump can be forced to back down if he meets sufficiently strong resistance.
But, as noted in my previous post, this order was not the only way in which Trump is trying to infringe on congressional control over spending, even though it was the broadest and most sweeping. So the struggle over the spending power is likely to continue. The exact details of how and when remain to be seen.
Is Humphrey's Executor in the Crosshairs?
Firing members of "independent" agencies would seem to set up a direct challenge to a longstanding precedent.
President Trump's decision to fire over a dozen agency inspectors general may be legal, but he has made other moves that are almost certainly unlawful under existing Supreme Court precedent, Humphrey's Executor in particular.
On Monday, Trump purported to fire two Democratic members of the Equal Employment Opportunity Commission and the Chair and General Counsel of the National Labor Relations Board. Any one of these dismissals could result in litigation, and one in particular could set up a direct challenge to the Humphrey's Executor precedent.
Under Humphrey's Executor, decided in 1935, Congress may prevent the President from removing members of multi-member independent agencies (such as the Federal Trade Commission) without cause. A more recent decision, Seila Law (which I unpacked here) held that this does not apply to agencies exercising substantial authority headed by a single individual (such as the Consumer Financial Protection Bureau). While Seila Law did not purport to modify Humphrey's Executor, the two decisions are clearly in tension.
That brings us to President Trump's latest moves. The firing of NLRB general counsel Jennifer Abruzzo would seem to be the most easily legally defensible action under existing law. President Biden fired the Trump-appointed NLRB GC at the start of his term, and that action was upheld by the U.S. Courts of Appeals for the Ninth and Fifth Circuits. The rationale is that the GC may have a set term of office, but no express removal protections, so the President's removal power is unconstrained. That holding is technically consistent with Humphrey's.
A similar argument may insulate President Trump's decision to fire two EEOC commissioners. While I am not aware of clear precedent for this move, the relevant statutory provisions do not appear to have express removal protections, so a court could reject any challenge to the firings on grounds similar to that considered in the NLRB GC cases, again without confronting Humphrey's Executor.
The decision to remove NLRB Chair Gwynne Wilcox, on the other hand, would seem to put Humphrey's Executor in the crosshairs. The relevant statutory provisions provide that members of the NLRB are appointed for set terms and (as is particularly relevant here) can be removed "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." Thus a President cannot remove a member merely because of anticipated policy differences or because the President wants the ability to make his own appointment.
There may be a clever way to try and distinguish the removal of an NLRB member from the removal of a Federal Trade Commission member (which is what was at issue in Humphrey's), but no serious argument for such an outcome comes to mind. This would suggest that if Wilcox contests her removal, the Administration will argue that Humphrey's Executor should be overruled, and courts will be forced to confront the question. Chief Justice Roberts may be a pro at manipulating statutory text to prevent disruptive outcomes, but this would seem to be beyond even his expertise.
The one exit ramp would be to deny certiorari if a lower court rejects the removal on precedential grounds (which most lower courts are likely to do), but that path would only be viable if there are six justices willing to leave Humphrey's be.
[Note: As initially posted, I mixed up the names of the EEOC and NLRB general counsels. The post has been fixed.]
Was It Legal for Trump to Fire Seventeen Inspectors General Without Notice?
Jack Goldsmith offers his analysis.
At the tail end of last week, President Trump fired seventeen inspectors general across a number of agencies (including some IGs that he himself had appointed during his first term). Of note, Trump did not provide Congress with the thirty-days notice that is required by federal law.
Some, such as the Washington Post's Ruth Marcus, believe this act was "blatantly illegal." Others, such as Harvard Law's Jack Goldsmith, are not so sure. Goldsmith offered a nuanced analysis for the Lawfare Blog that begins:
On Friday night, President Trump removed at least 17 inspectors general, the executive branch watchdogs who conduct audits and investigations of executive branch actions. The removals are probably lawful even though Trump defied a 2022 law that required congressional notice of the terminations, which Trump did not give. Trump probably acted lawfully, I think, because the notice requirement is probably unconstitutional.
The real bite in the 2022 law, however, comes in the limitations it places on Trump's power to replace the terminated IGs—limitations that I believe are constitutional. This aspect of the law will make it hard, but not impossible, for Trump to put loyalists atop the dozens of vacant IG offices around the executive branch. The ultimate fate of IG independence during Trump 2.0, however, depends less on legal protections than on whether Congress, which traditionally protects IGs, stands up for them now. Don't hold your breath.
That sounds about right to me. Here, as in many areas, the real question is whether Congress will defend its own prerogatives and power as a coordinate branch--and there is ample reason to doubt whether (m)any congressional Republicans have such fortitude.
In any event, Goldsmith's entire analysis is worth a read for those interested in the subject.
Justice Thomas Is Not Happy with the Sixth Circuit (Again)
A dissent from the denial of certiorari in another Sixth Circuit Habeas case.
It may have been easy to overlook with all that's going on this week, but on Monday Justice Thomas (joined by Justice Alito) dissented from the denial of certiorari in Davis v. Smith, a case from the U.S. Court of Appeals for the Sixth Circuit in which a divided panel granted a petition for a writ of habeas corpus in an unpublished opinion.
As I have noted many times before, the Sixth Circuit has had something of a tradition of being more generous in granting habeas petitions than the Supreme Court would like. This seems to happen less than it used to, largely due a change in the court's composition, but still happens occasionally when there is an unrepresentative panel, and that appears to have been the case here.
Justice Thomas, for his part, thinks the Sixth Circuit should corral outlier habeas decisions through rehearing en banc. Short of that, he would like the Supreme Court to act. His dissent begins:
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sharply limits the power of federal habeas courts to review state criminal convictions. The statute permits relief only when there is "no possibility fair-minded jurists could disagree that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 562 U. S. 86, 102 (2011). Unfortunately, some Sixth Circuit judges have "acquired a taste for disregarding AEDPA" and our cases on how to apply it. Rapelje v. Blackston, 577 U. S. 1019, 1021 (2015) (Scalia, J., dissenting from denial of certiorari). The decision below is the latest example of this practice. Because I would not overlook the Sixth Circuit's blatant and repeated disrespect for the rule of law, I respectfully dissent.
After detailing the facts of the case and explaining why he believes Judge Thapar's dissent was correct, Justice Thomas concludes:
The decision below is the latest in a long line of Sixth Circuit AEDPA errors. This Court has reversed the Sixth Circuit at least two dozen times for misapplying AEDPA. See Shoop v. Twyford, 596 U. S. 811 (2022); Brown v. Davenport, 596 U. S. 118 (2022); Cassano v. Shoop, 10 F. 4th 695, 696–697 (CA6 2021) (Griffin, J., dissenting from denial of rehearing en banc) (collecting 22 earlier cases in which this Court reversed the Sixth Circuit "for not applying the deference to state-court decisions mandated by AEDPA"). And, these reversals only scratch the surface of the Sixth Circuit's defiance. See, e.g., Shoop v. Cunningham, 598 U. S. ___ (2022) (THOMAS, J., dissenting from denial of certiorari); Shoop v. Cassano, 596 U. S. ___ (2022) (THOMAS, J., dissenting from denial of certiorari); Blackston, 577 U. S. 1019 (opinion of Scalia, J.). "That court's record of 'plain and repetitive' AEDPA error is an insult to Congress and a disservice to the people of Michigan, Ohio, Kentucky, and Tennessee." Cunningham, 598 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 13) (citation omitted). The Sixth Circuit can and must do more to correct its own errors. See ibid.
Some "reluctance in deploying en banc review is understandable," but "only to a point." Id., at ___ (slip op., at 14). "The Sixth Circuit's habeas problems are well past that point—as evidenced by the depressing regularity with which petitions like this one reach us." Ibid. When wayward panels refuse to apply AEDPA, hopefully, the Sixth Circuit will correct its errors by rehearing the case en banc. See 28 U. S. C. §46(c); Fed. Rule App. Proc. 40(c).
This Court also has a job to do. While "primary responsibility for the Sixth Circuit's errors rests with the Sixth Circuit," we too must "correct classic AEDPA abuses, especially when a lower court brazenly commits errors for which we have repeatedly reversed it." Cunningham, 598 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 13). I would have summarily reversed the judgment below to ensure that federal courts do not exceed their very limited role in collateral review of state criminal convictions. I respectfully dissent from the denial of certiorari.
D.C. Circuit Website Update
There's now a basic search feature for opinions.
Last fall, and again earlier this year, I complained about how the U.S. Court of Appeals for the D.C. Circuit's website upgrade actually downgraded the site's usability. In particular, I raised concerns about the elimination of opinion search capacity.
Since then, the website has been modified. There is now a basic Google search function on the website's opinion locator. This is still inferior to what the site had before, and far inferior to the search capacity on some other circuit court websites (such as that of the Sixth Circuit), but it is an improvement and does enhance public access to the work of this important appellate court.
Today in Supreme Court History: January 29, 1923
Trump's Attempt to Usurp Congress's Spending Power
The White House's withholding of federal grants, impoundment plans, and other actions, are a major attack on the separation of powers.
The Trump Administration is undertaking what amounts to a wide-ranging assault on Congress's power of the purse, seeking instead to usurp authority over federal spending. Today, the Office of Management and Budget issued a memo mandating a "temporary pause" on the disbursement of nearly all federal grants allocated by Congress, with the important exception of those going "directly to individuals" (as opposed to organizations and state and local governments). As in his first term, Trump is again planning to deny federal funds to sanctuary jurisdictions unless they accept his dictates on immigration policy. Earlier, he suspended nearly all foreign aid programs, except those for Israel and Egypt. Trump also recently threatened to withhold disaster relief funds from California, unless they adopt his preferred changes to state election law. More generally, he and his underlings have far-reaching plans to "impound" federal spending they disapprove of.
In combination, this is a massive assault on Congress' power over federal spending. The Spending Clause of the Constitution is clear in giving Congress, not the president, the power to allocate federal spending. When it comes to conditions imposed on grants to state and local governments, the Supreme Court has long made clear that they too must be imposed by Congress, and meet a number of other requirements, as well. Such conditions must, among other things, 1) be enacted and clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (e.g. - grants for health care or education cannot be conditioned on immigration enforcement), and 3) not be "coercive." Thus, for example, even Congress could not condition disaster aid on changes in state election law, because the two issues are not related.
Some might argue that many of the Administration's actions on spending are no big deal because they are only "temporary." But if the White House can "temporarily" withhold congressionally allocated funds for a month, why not for two months, or for two years? There is no logical stopping point here. And, indeed, Russell Vought, Trump's nominee to head the Office of Management and Budget, has argued that the president has a general power to "impound" congressionally authorized spending for as long as he wants.
Trump isn't the first president to impinge on Congress's spending power. Joe Biden, for example, did so by trying to forgive hundreds of billions of dollars in federal student loans, without proper congressional authorization. I condemned his action, and supported the Supreme Court's decision invalidating it. But Trump's assault on congressional spending authority is distinctive in its sweeping, all-encompassing nature. Previous presidents, at least since Richard Nixon, didn't claim any such limitless power to impound any and all federal funds.
In some cases, of course, Congress delegates some discretion to the president, on how to allocate particular types of funds. There is a longstanding debate about how broad such delegations can be before they start to violate constitutional nondelegation constraints. But that is distinct from claiming a sweeping power to withhold - even temporarily - any and all federal funds.
I believe there is way too much federal spending, and have long argued it would be good to make both states and many private organizations less dependent on various federal grants. But that goal cannot and should not be accomplished by the unconstitutional means of giving the president unilateral control over federal spending. It is dangerous to give such vast power to any single man.
Moreover, in many cases, the Trump Administration's objective is not to save money, but to use the threat of withholding pressure grant recipients into obeying the White House's dictates - as in the case of sanctuary cities and California. The goal is to further centralize power over many areas of public policy, not to put the federal government's fiscal house in order. A broad impoundment power would give the president enormous potential leverage over state and local governments, and many private organizations. In this way, Trump's impoundment and withholding plans are a threat to federalism, as well as separation of powers.
Legal scholar Zachary Price has published an excellent critique of the (weak) case for the constitutionality of impoundment. Georgetown law Prof. Steve Vladeck has a more thorough analysis and critique of the "temporary" grant funding freeze. As he notes, the measure violates the Impoundment Control Act of 1974, as well as the Constitution:
The question of whether a President can refuse to spend—to "impound"—funds Congress has appropriated for a designated purpose is one that has come up every so often in American history, albeit not on this scale. Sometimes, Congress passes statutes that give at least some spending discretion to the President. But absent such authorization, the prevailing consensus has long been that Congress's power of the purse (the Spending Clause is the very first enumerated regulatory power that the Constitution confers upon the legislature) brings with it broad power to specify the purposes for which appropriated funds are to be spent—and that a broad presidential impoundment power would be inconsistent with that constitutional authority….
Even the Justice Department's Office of Legal Counsel, which tends to err on the side of the President in these kinds of separation-of-powers disputes, concluded in 1988 [under Ronald Reagan] that the overwhelming weight of authority "is against such a broad power in the face of an express congressional directive to spend…"
Thus, even without the Impoundment Control Act, the kind of across-the-board impoundment the OMB memo is effectuating, even temporarily, should pretty plainly be unconstitutional.
But the Impoundment Control Act appears to resolve the illegality of this move beyond dispute. Enacted in response to an unprecedented volume of impoundment efforts by President Nixon, the Act creates a procedural framework within which the President can attempt to impound certain appropriated funds. Specifically, the ICA creates a fast-track procedure for Congress to consider a President's request (a "special message") to rescind funds he identifies for reasons he specifies.
Under the statute, the President may defer spending those funds for up to 45 days following such a request (which, it should be noted, he hasn't made yet). But if Congress does not approve the President's rescission request within 45 days of receiving it, then the funds must be spent….
Vladeck goes on to explain why the ICA is constitutional and why the Supreme Court should (and in his view likely will) rule against the administration if this issue comes before them.
UPDATE: A federal court has temporarily blocked Trump's grant spending freeze. This is just an "administrative" stay, so does not - so far, at least - signal the judge's position on the merits.
Mother Convicted of "Unlawful Posting of a Message" for Website Sharply Criticizing Woman Who Accused Mother's Son of Rape
The Michigan Court of Appeals just upheld the conviction, under a statute that requires showing of purpose to (among other things) "harass[]" or "molest[]," and reason to know that third parties would send the target unwanted and "harass[ing]" or "molest[ing]" messages. The statute doesn't require any showing that the accusations were false.
From People v. Dingee, decided Friday by Michigan Court of Appeals Chief Justice Michael Gadola and Justices Kirsten Frank Kelly and Robert Redford:
This case has its origins with two young adults—SK [defendant's son] and the victim—who were close friends in high school and for a time after high school…. In June 2020, the victim confronted SK at [a] party and loudly and repeatedly yelled that he had raped her [at an earlier party]. According to SK, a crowd of people chased him back to his friend's car, and his friend drove him away. Approximately two months later, a former girlfriend contacted SK and arranged to meet with him at night in a secluded park. The former girlfriend allegedly lured SK to the park so that a group could ambush him. At this arranged meeting, SK was attacked. Defendant blamed the victim for the attack on her son, even though there was no evidence that the victim planned, encouraged, or participated in it.
Defendant created a website, titled "[Redacted by court]Lies.com," through which she accused the victim of lying. On that website, defendant attacked the victim's reputation and posted images of the victim that included details that would allow others to identify the victim's social media accounts.
Defendant also posted what she deemed to be evidence that the victim fabricated her claim against SK. Defendant asserted that the victim was responsible for the attack on her son and posted images of his injuries. In addition to the website, defendant posted numerous messages and comments on Facebook targeting the victim and referring people to the website she had created. She also eventually made TikTok videos about the victim.
After the victim began receiving numerous threats and comments from third parties on her social media accounts, the victim was forced to close the accounts. She testified that she also quit school and work, and she moved back home for her own safety.
Dingee was convicted for violating the "unlawful posting" statute, MCL 750.411s, which reads, in relevant part:
My New Just Security Article On Trump's "Invasion" Executive Order and its Dangerous Implications
The article explains why the order is unconstitutional and why letting it stand would be very dangerous, including for the civil liberties of US citizens.
Today, Just Security published my article on "The 'Invasion' Executive Order and its Dangerous Implications." Here is a brief excerpt:
A number of crucial issues in immigration law and policy now turn on the meaning of a previously little-noticed term in the Constitution: "invasion." The Trump administration and some red state governments claim that illegal migration and drug smuggling across the southern border qualify as "invasion" under the Constitution and the Alien Enemies Act of 1798. If this ill-founded argument is not rejected by the courts, it would have dangerous and far-reaching implications. Among other things, it would empower the federal government to detain people without charge or trial, and open the door for states to engage in war with neighboring foreign nations without congressional authorization.
The rest of the article explains in detail why the theory that illegal migration and drug smuggling qualify as "invasion" is wrong, why allowing it to stand would have a variety of dangerous implications, and why courts should not punt the issue by ruling that the definition of "invasion" is a "political question." See also my March 2024 Lawfare article and Fifth Circuit amicus brief on related issues.
