The Volokh Conspiracy

After an incredibly busy week, I finally had time today to read carefully Judge Aileen Cannon's opinion in United States v. Trump. I thought it was excellent, indeed better than most Supreme Court opinions on the Appointments Clauses (although entirely consistent with those opinions). I might be biased given that Judge Cannon's opinion cited Gary Lawson's and my law review article on this topic, but she went way beyond that article. President Trump of course was also biased in calling her wise and brave, but in this instance I think he was correct.

Here is the heart of the question that Judge Cannon was considering: Has Congress delegated to the Attorney General either the power to create inferior officers or the power to create the office of Special Counsel, which Jack Smith fills? In her very detailed and textualist opinion, Judge Cannon persuasively shows that the answer is "no."

Judge Cannon's opinion shows that each Section of the U.S. Code, which Smith relied on, neither delegates to the Attorney General the power two create inferior offices, nor does it create the office of the Special Counsel. Her argument is irrefutable. I have yet to read a response to her opinion that is remotely as persuasive as the opinion itself.

Judge Cannon also discusses, but does not decide whether an office like the office of Special Counsel, if it existed, would be a Principle or Inferior Office for Appointments Clause purposes. Her discussion of that issue is good as any judicial opinion since one written by Justice David Souter concurring in Edmond v. United States, 520 U.S. 651 (1997).

In addition, Judge Cannon discusses what I think is a very serious Appropriations Power issue in the case. She quite rightly concludes that the Justice Department should lose on both grounds, but she correctly relies only on the Inferior Office Appointments Clause and the statutory arguments before her as deciding the case.

Gary Lawson and I argued in Why Robert Mueller's Appointment as Special Counsel Was Unlawful, 95 Notre Dame Law Review 87 (2019), that the "Department of Justice should write a new regulation, replacing the 1999 Janet Reno Regulations, specifying that, in the future special counsels shall be appointed from among the ranks of the permanently appointed U.S. Attorneys."

This would give an Attorney General a list of up to 93 names from which she or he could appoint a Special Counsel. All of the people on that list are Senate-confirmed officers of the United States who could be given the additional power of prosecuting a case outside of their own districts.

Democrats who are concerned by Judge Cannon's opinion should ask themselves how they would feel, if an Attorney General appointed by a second term President Trump, had the power to create an unlimited number of Special Counsels all of whom were inferior officers as powerful as is Jack Smith?

Sadly, instead of doing that, Attorney General Merrick Garland, a former D.C. Circuit Judge, has chosen to appeal Judge Cannon's ruling to the Eleventh Circuit.

He has done this with no acknowledgment of the dangers that the Janet Reno regulations pose to the separation of powers or to the system of checks and balances, which the Constitution creates.

From the Northern District of Illinois federal court's General Order 24-0021 today:

The court recognizes that the July 19, 2024 global IT outage creates great difficulty for litigants attempting to meet court deadlines. It is, therefore, HEREBY ORDERED THAT the date for filing of any orders, writs, process, pleadings, or other matters otherwise due or heretofore made returnable on July 19, 2024, is hereby extended and continued to Monday, July 22, 2024.

Makes sense to me. I expect that, even without such an order, courts would forgive delays under such circumstances, but it's always good for a court to acknowledge this up front. (I don't know whether this will help with statutory deadlines that affect a court's jurisdiction; if readers know the answer to that, please note it in the comments.)

Rumors that federal courts worried about the Y2K bug extended court deadlines to January 1, 1900 have no basis in fact.

C-00000291-00000000-00000032.sys delenda est.

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

From today's decision by Judge Jon Tigar (N.D. Cal.) in Roe v. City of S.F.:

Plaintiffs are residents and businesses in the Tenderloin neighborhood in San Francisco. Plaintiffs allege that the City treats the Tenderloin as a "containment zone" for narcotics activities. Specifically, Plaintiffs contend that "for years the City has allowed individuals to openly buy and use narcotics in the Tenderloin, and to remain, under the obvious influence of drugs, on the sidewalks and public spaces of the neighborhood." "Addicts living on the Tenderloin's streets foreseeably support their habit by stealing (e.g., shoplifting, car break-ins, burglaries, robberies) and hawking the stolen merchandise on the sidewalks." And "as their disease progresses, their mental and physical health declines, resulting in them acting erratically, ignoring serious medical problems (e.g., open sores at injection sites), rummaging through trash, discarding garbage on the sidewalk around them, going partially clothed, and defecating in public." As a result, Plaintiffs allege "the City-owned public walkways and spaces in the Tenderloin are dangerous, unsanitary and no longer open and accessible to plaintiffs and other members of the public."

Plaintiffs sued, claiming that the failure to enforce the law was unconstitutional, but the court said no (correctly applying the existing precedents, I think):

But as the Supreme Court recently reiterated "a citizen lacks standing to contest the
policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." This is because "when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual's liberty or property, and thus does not infringe upon interests that courts often are called upon to protect."

But it allowed the case to go forward on the theory that the City's policies burdened disabled residents in violation of federal disability rights law:

Plaintiffs here allege that the "sidewalks and public spaces" in their neighborhood are impassable and inaccessible to them due to "[e]ncampments and bulky items, such as duffle bags, shopping carts, and disassembled bicycles." … [T]hese allegations put the City on notice of how the barriers prevent Plaintiffs from full and equal access—encampments and other items obstruct their path such that those with walkers and other mobility issues are unable to utilize the sidewalks. See Hood v. City of Sacramento, No. 2:23-cv-00232-KJM-CKD, 2023 WL 6541870, at *6 (E.D. Cal. Oct. 6, 2023) (finding allegations that plaintiffs were disabled and encampments and debris blocked sidewalk access which prevented access to locations within the City were sufficient to state a Title II claim).

Seems like a strange legal rule to have—courts can't intervene when the government fails to protect ordinary people from people illegally blocking sidewalks, but must intervene when the government fails to protect disabled people from the same behavior—but perhaps this is the rule we do have. (I'm not an expert on disability law, so I can't speak to how sound this decision is as a matter of current federal law.)