From Dever v. Dugan, decided by a panel of the Vermont Supreme Court (Harold E. Eaton, Jr., Karen R. Carroll & Nancy J. Waples) on June 12:
Plaintiff was performing work at Amy's Bakery in Brattleboro…. Dugan owned the property where the business was located.
Plaintiff alleged in his complaint that Dugan stated "that, as owner of [the] property, he had the right to approve or refuse, anyone doing work in or on his building," and "he would not allow [plaintiff] to work in his building" because "[plaintiff] had sued people for whom he had worked in the past," and "there was a good chance" that plaintiff would sue them and "he didn't want to take that chance." According to plaintiff, Dugan told Comerchero [who owned Amy's Bakery] that if she did not terminate plaintiff immediately, he would evict her.
Plaintiff also alleged that Dugan gave Comerchero a list of cases that plaintiff had been involved in for use in a breach-of-contract case that plaintiff brought against her. While plaintiff referred to this list of cases as "malicious defamation," there was no allegation that plaintiff was not in fact involved in these suits.
In November, I wrote that the Fifth Circuit's Rahimi decision "was a faithful application of Bruen." Seven months later, now having read the Supreme Court's Rahimi decision, I stand by what I wrote. After Justice Thomas's dissent, the most intellectually honest opinion in Rahimi was Justice Jackson's concurrence. Jackson explained that "Today's effort to clear up 'misunderst[andings],' is a tacit admission that lower courts are struggling" with Bruen. The struggle is this: Justice Thomas meant what he wrote, but the other five members of the Rahimi majority did not. And they've now all run for the hills.
June 2022 was a strange time. The Court was on the verge of overruling Roe and the Lemon test. According to recent reporting by the New York Times, Chief Justice Roberts and Justice Kavanaugh did not sign onto Bruen until fairly late in the process, and only with a narrowing concurrence. And Justice Barrett was quite vocal about her own reservations. Had Bruen been decided in a different term without Dobbs and Kennedy, perhaps we would have gotten a different opinion. Had Chief Justice Roberts assigned the case to anyone but Justice Thomas, we would have never had Rahimi. The New York law would have been declared unconstitutional, but there would have been nothing about analogical reasoning. So many things had to go right--or wrong, depending on your vantage point--for June 2022 to happen the way it did. And so it did.
But only two years later, and the Court's originalists are fracturing. Vidal was the canary in the coal mine.
I still do not understand Justice Gorsuch's Rahimi concurrence. I think he would have been better off saying nothing than trying to explain his position. There is a small irony to Gorsuch's reliance on Salerno. That is the exact test that Judge Sutton used to avoid declaring the Affordable Care Act unconstitutional. More NFIB PTSD. Salerno may also make a cameo in the NetChoice case, with regard to facial challenges.
I'll give Justice Kavanaugh credit. He is really trying to make "tradition" a doctrine. He put a lot of work into that concurrence. It is long. Probably too long. And the string cites to everything Justice Scalia wrote comes off a tad desperate--look at me, I'm just like Justice Scalia! The genius of Scalia is that he didn't look like he was trying. Kavanaugh is trying way too hard. Still, having read all of Kavanaugh's concurrence, I'm not sure I learned anything new that wasn't already in some of the articles he cited. It was at most a synthesis. And Mike Rappaport has already started to point out Kavanaugh's mistakes.
Then there is Justice Barrett. She is such an effortless writer. In only a few pages, she conveys far more novel insights than can be found in Kavanaugh's treatise. Still, I worry about her. She talks the originalist talk, but she is hesitant to walk the originalist walk. The level of historical support she demands is probably more than can be established in most cases. And when lawyers don't meet her burden, she will revert to some sort of common law judging approach. By the way, my prediction for Barrett based on her Vidal concurrence was right on point. Justice Jackson kept citing Garcia, and I worry that Barrett, perhaps like Roberts, may have a Harry Blackmun moment soon enough.
I'll have much more to say about the case in some future writings. Don't worry. I haven't forgotten about the Chief Justice.
The Supreme Court's opinion in United States v. Rahimi stretched more than 100 pages. I finally finished reading it, and editing it down for the Barnett/Blackman supplement. The edited version now totals about 33 pages.
I suspect that most professors will not assign all of the opinions. For a basic 1L ConLaw class, it is probably enough to read Chief Justice Roberts's majority opinion, Justice Jackson's concurrence, and Justice Thomas's dissent. Students interested in originalist theory should read Justice Barrett's concurrence and Justice Kavanaugh's concurrence, in that order. I'm still not sure what to make of Justice Gorsuch's concurrence. And Justice Sotomayor's concurrence can be skipped without sacrificing much.
I will have much more to say about this case in due time.
Illustration: Lex Villena; Stephen Coburn | Dreamstime.com
President Biden's new large-scale student loan forgiveness plan had a terrible, horrible, no good, very bad day. That's because two separate federal district courts ruled against its legality, in lawsuits brought by different coalitions of GOP-led states. Moreover, both of the judges who issued the rulings were Democratic Barack Obama appointees. That makes it hard to argue the decisions were a result of ideological or partisan bias, and is a very bad sign for the Administration's chances of prevailing on appeal.
The new loan forgiveness plan - known as the SAVE Plan - which would discharge at least $156 billion in federally backed student loan debt, is a successor to the one the Supreme Court invalidated in Biden v. Nebraska, last year, on the grounds that the Administration's actions were not authorized by Congress (that plan would have discharged some $430 billion in student debt).
While the administration claimed last year's plan was authorized by the 2003 HEROES Act, they have defended the new plan as an exercise of authority delegated by the Higher Education Act of 1965. But both plans use vague statutory language to justify a massive expenditure of funds and both are vulnerable to attack under the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing an executive branch agency to make "decisions of vast economic and political significance." It was therefore foreseeable (and in fact foreseen) that the new plan might well suffer the same fate as the old, if challenged in court, and that is what happened today.
In Missouri v. Biden, federal district Judge John A. Ross issued a preliminary injunction blocking parts of the plan that forgive debt, as opposed to merely restructure it. He first had to address the issue of "standing" - whether Missouri and the other plaintiff states were likely to suffer an "injury" caused by the plan. Standing was a major issue in Biden v. Nebraska, one the Supreme Court resolved by ruling that the state of Missouri had standing because it has a state agency - the Higher Education Loan Authority of the State of Missouri (MOHELA) - that services federally backed student loans, and MOHELA's income would be reduced if some of those loans were forgiven. In a previous post, I noted that Missouri could use the exact same reasoning to get standing to challenge the new plan. Judge Ross agrees:
Here, Plaintiffs have established standing through the alleged injuries to MOHELA and thus to Missouri. The allegations in the Complaint are substantially similar to, if not identical to, those the Supreme Court held were sufficient to establish Missouri's standing just last year in Biden v. Nebraska. The Court finds no reason to reach a different result here.
The Final Rule calls for accelerated loan forgiveness for a set of borrowers with low initial principal balances who elect repayment through the SAVE plan and make a set number of qualifying payments. To the extent MOHELA services accounts subject to this early forgiveness—and there is no dispute that MOHELA does service such accounts—MOHELA will lose revenues from administrative servicing fee when those accounts are forgiven.
If Missouri has standing, the court concludes that it need not issue standing rulings for the other plaintiff states (again following the precedent set in Biden v. Nebraska).
On the merits, Judge Ross finds that the SAVE plan goes beyond what the statute authorizes:
According to Defendants, Congress intended to grant the Secretary [of Education] authority under the HEA to forgive balances on loans in the ICR [income contingent repayment] program by creating a maximum repayment period of 25 years or "an extended period of time prescribed by the Secretary." 20 U.S.C. § 1087e(d)(1)(D)…… Under this alleged authority, the Secretary has been providing loan cancellation for loans in the ICR plan since the first ICR regulations became effective in 1995.
Despite this history, the plain text of the statute does not support Defendants' position. The Court is not free to replace the language of the statute with unenacted legislative intent…. It is true that offering forgiveness of loan balances after 25, or even 10, years of repayments to borrowers under the SAVE plan will ensure that fewer borrowers will default or become delinquent. These loan forgiveness provisions thus comport with the Secretary's expressed purpose for creating the Final Rule. But because the statute is silent on loan forgiveness under the ICR program, it is at least equally as likely that the HEA's time limitations in the ICR program refer to the maximum period that borrowers can be in repayment before the entire loan amount must be repaid or borrowers must default….
Plaintiffs' alternative reading—that § 1087e(d)(1)(D)'s language does not permit loan forgiveness under the ICR program—finds support in other portions of the HEA that explicitly permit loan forgiveness. Congress has made it clear under what circumstances loan forgiveness is permitted, and the ICR plan is not one of those circumstances.
Later in the opinion, Judge Ross concludes that such a massive loan forgiveness plan clearly qualifies as a "major question," but also indicates that the plan is illegal even aside from the major questions doctrine. That doctrine merely further reinforces the plaintiff states' arguments:
Here, there is no real dispute that the Secretary's Final Rule touches on issues of vast economic and political significance and therefore may implicate the major questions doctrine. But to the extent it is necessary to invoke the major questions doctrine here at this stage of litigation, it merely confirms what the Court has found using the typical tools of statutory interpretation.
The court did reject some of the plaintiff states other arguments, and also would preserve parts of the SAVE plan that do not actually forgive debt, but merely alter payment schedules and the like. Nonetheless, Judge Ross's reasoning indicates that the most important provision of the plan (the one that would forgive vast amounts of student loan debt) is illegal, because not authorized by Congress.
In Alaska v. Department of Education (formerly known as Kansas v. Biden) Judge Daniel Crabtree of the District of Kansas reached a similar decision. The standing issue in this case was addressed in a previous ruling, where Judge Crabtree concluded only 3 of 11 plaintiff states have standing. Unlike Judge Ross, he held that giving one state standing does not resolve the standing issues for the rest. The state of Kansas, which initially led the litigation, was one of those that did not get standing, which to the case being renamed.
On the merits, Judge Crabtree's reasoning is very similar to Judge Ross's, except that he relies much more on the major questions doctrine:
To resolve plaintiffs' motion, the court must answer three questions.
First: does defendants' SAVE Plan present a "major question"—one of such economic and political significance that defendants must show that Congress clearly authorized the SAVE Plan? In Biden v. Nebraska, 143 S. Ct. 2355 (2023), the Supreme Court answered this question. This recent, binding Supreme Court decision holds "that the basic and consequential tradeoffs inherent in a mass debt cancellation program are ones that Congress would likely have intended for itself." Id. at 2375 (quotation cleaned up). So, this is an easy yes.
Second, given that the case presents a major question, have defendants shown that the Higher Education Act clearly authorizes their SAVE Plan? Biden v. Nebraska doesn't answer this question because that case addressed a different statute with a different regulatory history. While it's a close and difficult question, the court answers this second question no. Defendants have offered colorable, plausible interpretations of the Higher Education Act that could authorize the SAVE Plan, but those interpretations fall short of clear congressional authorization.
Last, the court must decide whether the preliminary injunction should apply nationwide. Scope aside, part of plaintiffs' requested injunction is unworkable, and so the court denies it. But, for the workable part of plaintiffs' injunction, the court reluctantly answers yes—it should apply nationwide.
I think Judge Ross's analysis is a bit better than Judge Crabtree's, and the case can be resolved even without applying the major questions doctrine. But if the statute is indeed unclear, both judges are right to conclude that MQD requires a ruling in favor of the plaintiffs.
Despite some differences, both courts have issued nationwide preliminary injunctions that block the Administration from engaging in most further loan forgiveness. Nationwide injunctions are the subject of extensive controversy. I think the two courts are right to issue nationwide injunctions here, because, as Judge Crabtree puts it, "[a] broad rule, like the SAVE Plan, requires a broad injunction, given the compelling need for nationwide uniformity in the Department's administration of student loan programs."
Both of today's decisions only address preliminary injunctions. They are not yet final decisions on the merits. However, both judges made clear they believe the plaintiffs are likely to prevail on key issues in any such final decision (such a likelihood of success is one of the criteria for getting a preliminary injunction).
The Biden Administration will surely appeal both rulings. But the fact they lost at the trial court level in both cases, despite litigating them before liberal Democratic appointees, is a strong indication they will face an uphill struggle. I am now even more confident than I was before that the most likely outcome of this litigation is that the SAVE Plan will suffer the same fate as its HEROES Act predecessor.
In A Republic, Justice Gorsuch recounts a story told by his former boss, Justice White:
THESE DAYS I SOMETIMES find myself thinking back a quarter century to a day when, as a law clerk, I was walking with my boss, Justice Byron White, along the ground-floor hallway of the Supreme Court. As we passed portrait after portrait of former justices, he asked me how many of them I could name. As much as I wanted to impress the boss, I admitted the answer was about half. The justice surprised me when he said, "Me too. We'll all be forgotten soon enough."
Justice White was quite right.
During a recent event, Justice Kavanaugh referred to Justice Robert Jackson, and added, "or as we like to refer to him, the first Justice Jackson." Eek.
Justice Howell Edmund Jackson
Everyone knows Justice Robert Houghwout Jackson, who served from 1941 through 1954. But most people do not know Justice Howell Edmunds Jackson. He was appointed by President Benjamin Harrison, and served from 1893 through 1895. Forgotten. KBJ is the third Justice Jackson.
Shortly before KBJ was appointed, I listed the other Justices who shared a last name:
Chief Justice John Marshall (1801-1835) and Justice Thurgood Marshall (1967-1991)
Justice John Rutledge (1790-1791) and Justice Wiley Rutledge (1943-1949)
Justice Thomas Johnson (1792-1793) and Justice William Johnson (1804-1834)
Justice Samuel Chase (1796-1811) and Chief Justice Salmon Chase (1864-1873)
Justice John Marshall Harlan I (1877-1911) and Justice John Marshall Harlan II (1955-1971)
Justice Lucius Quintus Cincinnatus Lamar (1888-1893) and Justice Joseph Rucker Lamar (1911-1916)—(they were cousins)
Justice Edward Douglas White (1894-1910) and Justice Byron White (1962-1993)
Justice John Hessin Clarke (1916-1922) and Justice Tom C. Clark (1945-1967)—(close enough on the spelling)
Justice Owen Josephus Roberts (1930-1945) and Chief Justice John C. Roberts (2005-any day now)
Eugene Volokh likes to post about cases that can go forward because they survive some kind of summary judgement. Mostly it just seems to rile up the usual commenters as either a biased miscarriage of justice (if they don't like the claims upheld when viewed in the light most favorable to one side) or as an absolute legal victory (if they like the claims so upheld). How often do such cases get a followup when finally resolved? What benefit* is there to report on such preliminary activity? Why not cases like these but that don't hinge on elements likely to be characterized as "lathering the rubes"?
(*That cases like this may be privately settled before further proceedings would be one argument, that this could be the one chance to discuss such a case. Since I'm not a lawyer, I have no idea whether this case presents anything legally interesting that a case that wouldn't mostly prompt comments on charter schools and vaccines and vaccine mandates and so on. So I could be off base here.)
I thought some other non-lawyer readers might have the same question, so here's the answer: I like to report on court opinions, because the court opinions
become precedent (even if only persuasive precedent, as with trial court decisions);
illustrate how courts apply the legal rules (if the facts are X, then under legal rule Y the result would be Z);
are likely to come to my attention (since I have daily Westlaw searches finding new cases that mention the First Amendment); and
offer publicly available details.
Indeed, I suspect that's why most legal academics mostly write about court opinions.
On the other hand, the final resolution of a case is usually a settlement. A settlement isn't precedent. It doesn't directly illustrate how courts apply the legal rules. It usually won't come to my attention. And it generally isn't public as to its terms (including whether plaintiff got any money or other benefit at all). Moreover, even if the final resolution is a jury verdict—which happens only in a fraction of the cases—it won't come up on my Westlaw queries, so I generally won't learn about it.
Occasionally, the court opinion reflects a resolution of the case, for instance when it denies or grants a motion for judgment notwithstanding a verdict, when it's an appellate opinion affirming a verdict. And of course sometimes court opinions themselves resolve the case, for instance when they grant summary judgment or a motion to dismiss. When any of that happens, I'm definitely open to blogging that (though mostly for the same reasons 1 to 4 above). But I'm also open, for the reasons given above, to writing about opinions that simply allow the case to go forward.
Justice Amy Coney Barrett's majority opinion includes significant errors, and violates some of her own precepts against excessive reliance on questionable history.
Justice Amy Coney Barrett. (Eric Lee/Pool via CNP/Polaris/Newscom)
In its important recent immigration decision in Department of State v. Munoz, the Supreme Court ruled there are virtually no constitutional limits on the federal government's power to bar non-citizen spouses of American citizens from entering the country. In the process, Justice Amy Coney Barrett's majority opinion (written on behalf of herself and four other conservative justices) commits serious errors in historical analysis, and violates Justice Barrett's own well-taken strictures about the appropriate use of history in constitutional analysis.
Sandra Munoz is a US citizen whose husband, Luis Asencio-Cordero (a citizen of El Salvador) was barred from entering the US to come live with her, because US consular officials claimed he had ties to the MS-13 criminal drug gang (which connection Ascencio-Cordero denies). Munoz filed suit, claiming that, given that the constitutional right to marriage was implicated, the State Department was at the very least required to reveal the evidence that supposedly proved her husband's connection to the gang.
In arguing that there is no originalist or historical justification for US citizens to claim a right to entry for their non-citizen spouses, Justice Barrett cites historical evidence from the 1790s:
From the beginning, the admission of noncitizens into the country was characterized as "of favor [and] not of right." J. Madison, Report of 1800 (Jan. 7, 1800)…. (emphasis added); see also 2 Records of the Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (recounting Gouverneur Morris's observation that "every Society from a great nation down to a club ha[s] the right of declaring the conditions on which new members should be admitted"); Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, p. 31 (1850) ("[B]y the law of nations, it is left in the power of all states to take such measures about the admission of strangers as they think convenient"). Consistent with this view, the 1798 Act Concerning Aliens gave the President complete discretion to remove "all such aliens as he shall judge dangerous to the peace and safety of the United States." 1 Stat. 571 (emphasis deleted). The Act made no exception for spouses—or, for that matter, other family members.
Almost everything in this passage is either false or misleading. The quote from James Madison's Report of 1800, does not, in fact, indicate that Madison believed the federal government has blanket authority to exclude immigrants for whatever reason it wants. Far from it. Madison was arguing that the Alien Friends Act of 1798 (part of the notorious Alien and Sedition Acts) was unconstitutional because the federal government lacks such power. Here is the passage where the quote occurs:
One argument offered in justification of this power exercised over aliens, is, that the admission of them into the country being of favor not of right, the favor is at all times revokable.
To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required. A question would still occur, whether the constitution had vested the discretionary power of admitting aliens in the federal government or in the state governments.
Note that Madison does not even admit that admission of immigrants is "a favor." He just assumes it is for the sake of argument, then goes on to argue that the Alien Act is unconstitutional regardless, because the relevant power isn't given to the federal government (this is what he argues in the rest of the Alien Act section of his Report). The 1798 Act Concerning Aliens, also quoted by Justice Barrett, is the very same Alien Friends Act denounced as unconstitutional by Madison, Thomas Jefferson, and many others. Opposition to the Act was so widespread that no one was ever actually deported under it, before Thomas Jefferson allowed it to expire upon becoming president in 1801.
I think Jefferson and Madison were right to argue the Alien Friends Act was unconstitutional. But, at the very least, legislation whose constitutionality was so widely questioned at the time cannot be relied on as strong evidence of the original scope of federal power in this area.
The quote by Gouverneur Morris at the Constitutional Convention is not about immigration restrictions at all. It is part of a speech defending his proposal that people must be required to have been citizens for at least fourteen years before being eligible to become US senators. The proposal was rejected by the Convention (which eventually decided on a nine-year requirement). It was denounced by several other prominent members of the Convention, including James Madison and Benjamin Franklin. Madison argued it was "unnecessary, and improper" and would "give a tincture of illiberality to the Constitution" (see Records of the Federal Convention of 1787, Vol. 2, pp. 235-37 (Max Farrand, ed., 1911)).
Morris's speech in favor of this failed proposal is not a reliable guide to the sentiments of the Convention. Still less is it indicative of the original meaning understood by the general public at the time of ratification (which is the relevant criterion for most originalists, including Justice Barrett, who has said the original meaning of a constitutional provision is "the meaning that it had at the time people ratified it").
Finally, the Debate on the Virginia Resolutions in the Virginia Report of 1799-1800, also quoted by Justice Barrett, was a record of debates in the Virginia state legislature over the Virginia Resolution (drafted by Madison) a statement asserting that the Alien Friends Act is unconstitutional. The passage Barrett quotes is from a speech by a dissenting member of the Virginia state legislature opposing the Resolution. The majority, however, sided with Madison.
Given this history, the debate over the Resolution cannot be relied on to justify virtually unlimited federal power over immigration by spouses of citizens, or any other migrants. And because Madison and the majority in the state legislature argued that the entire Alien Friends Act was unconstitutional, they understandably did not bother to argue that there was a separate issue regarding exclusion of non-citizen spouses of citizens. To my knowledge, no such case involving spouses came up during the short time the Act was in force.
Justice Barrett also relies on dubious 19th century history:
The United States had relatively open borders until the late 19th century. But once Congress began to restrict immigration, "it enacted a complicated web of regulations that erected serious impediments to a person's ability to bring a spouse into the United States." Din, 576 U. S., at 96 (plurality opinion). One of the first federal immigration statutes, the Immigration Act of 1882, required executive officials to "examine" noncitizens and deny "permi[ssion] to land" to "any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." 22 Stat. 214. The Act provided no exception for citizens' spouses. And when Congress drafted a successor statute that expanded the grounds of inadmissibility, it again gave no special treatment to the marital relationship….
In her recent concurring opinion in United States v. Rahimi, an important Second Amendment case, Justice Barrett warned about careless reliance on post-ratification history in constitutional interpretation:
[F]or an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function. To be sure, postenactment history can be an important tool. For example, it can "reinforce our understanding of the Constitution's original meaning"; "liquidate ambiguous constitutional provisions"; provide persuasive evidence of the original meaning; and, if stare decisis applies, control the outcome…. But generally speaking, the use of postenactment history requires some justification other than originalism simpliciter….
As I have explained elsewhere, evidence of "tradition" unmoored from original meaning is not binding law… And scattered cases or regulations pulled from history may have little bearing on the meaning of the text.
Here, Barrett relies heavily on "evidence of 'tradition' unmoored from original meaning" and "scattered… regulations" enacted more than a century after ratification. In fairness, the nineteenth century laws in question were enacted closer in time to the ratification of the Fourteenth Amendment in 1868, which is where the Supreme Court has said the right to marry arises from (albeit, when it comes to the federal government, the right is read back into the Fifth Amendment). But the 1880s was still a long time after ratification. Moreover, the laws in question were enacted at a time when racial and ethnic bigotry undermined enforcement of much of the original meaning of the Fourteenth Amendment, and such bigotry heavily influenced immigration legislation and jurisprudence.
Barrett also relies on the history in part because the Supreme Court's test for whether the Due Process Clauses of the Fifth and Fourteenth Amendment protect an unenumerated right (like the right to marry) require the right to be "deeply rooted in this Nation's history and tradition." But a combination of badly misinterpreted 1790s history and 19th century history heavily tinged by racial and ethnic bigotry are poor means for applying that test.
As Justice Barrett recognizes later in her opinion, in later years Congress did in fact enact legislation giving spouses of US citizens a presumptive right to enter the United States, though there are exceptions, such as the one for "unlawful activities" at issue in this case. That suggests there may in fact be a historically rooted right to spousal migration, even if not an absolute one (most other constitutional rights aren't completely absolute, either).
Overall, I think Amy Coney Barrett has been a pretty good justice since her controversial appointment just before the 2020 election. But Munoz is far from her finest hour.
The Court's badly flawed handling of history doesn't necessarily mean the bottom-line decision was wrong. Even the dissenting liberal justices agreed the government was justified in denying Asencio-Cordero a visa, reasoning that the possible ties to MS-13 were a sufficient justification to outweigh the right to marry in an immigration case (and, as Justice Gorsuch notes in a concurring opinion, the government did eventually reveal the evidence in question; he argues the Court should have resolved the case on that basis, without reaching the constitutional issues). Alternatively, one can argue the right to marriage doesn't necessarily include a broad right to have your spouse present in the same jurisdiction. There may be other possible justifications for the outcome, as well.
But the Supreme Court should not have relied on a badly flawed interpretation of post-enactment history to justify a sweeping power to run roughshod over marriage rights in immigration cases, even in situations where the right to marry might otherwise impose a constraint. That's especially true given that similar reasoning could potentially be used to apply to other constitutional rights. If the Alien Friends Act of 1798 and 1880s immigration legislation qualify as relevant evidence, they could be used to justify almost any immigration restriction.
Obviously, Munoz is far from the first Supreme Court decision where the justices effectively exempted immigration restrictions from constitutional constraints that apply to other federal laws. Trump v. Hawaii, the 2018 travel ban decision is another recent example, and there are other such cases going back to the 19th century. But Munoz is still notable for its particularly slipshod historical analysis.
UPDATE: I have edited this post to note Justice Gorsuch did not join the majority opinion. He concurred in judgment only.
Way back in November 2023, three cert petitions were filed in cases challenging laws which regulated medical treatment for transgender minors. Two were filed in Skrmetti, the Tenessee case, by the Biden Justice Department and the ACLU. One was filed in the Kentucky case by Jenner Block.
These cases lingered in docket purgatory. John Elwood provides the breakdown:
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23, May 30, June 6 and June 13 conferences)
Seven reschedules and five relists! Usually a case with this record is destined for a cert denial, coupled with a dissent from denial of cert.
But here, after three months of docket purgatory, we get a grant. But not a grant in all three cases. There is only a grant in the DOJ case. The Court is (presumably) holding the other two petitions.
This case will likely be argued in November 2024 or so—before or shortly after the election. But a decision probably would not come until June 2025. Will the Trump Justice Department switch positions after the inauguration, and dismiss the petition? If so, the Court could dodge the issue altogether. Had the Court granted the petitions from the ACLU and Jenner Block, the controversies would have remained regardless of what happens with the election. But by granting only the DOJ petition, the Court has limited the case. Maybe that's what led the Court to only grant the SG's petition.
This outcome would be like another Grimm case where an important issue goes unresolved for years on end with a change in administrations.
An old pastime is trying to figure out which Justice was the principal author of a per curiam opinion. I recently speculated that Chief Justice Roberts wrote the per curiam opinion in Gonzales v. Trevino. And Roberts in fact announcedTrevino from the bench.
Earlier this term, the Supreme Court decided two cases about what happens when government officials block constituents on social media: Lindke v. Freed and O'Connor Ratcliff v. Garnier. Justice Barrett wrote the majority opinion in the former and a per curiam opinion was issued in the latter. During the hand-down, Justice Barrett announced both cases.
Last term, the Supreme Court decided two Section 230 cases: Twitter v. Taamnehand Gonzalez v. Google. Justice Thomas wrote the majority opinion in the former, and a short per curiam opinion was issued in the latter. During the hand-down, Justice Thomas announced both cases.
Does the Chief Justice always announce the per curiam opinion when it is not a paired case? I would have to do more research to figure out a rule.
"Petitioner was identified in a public TikTok video made with a contraband cellphone showing him and several other inmates preparing, cooking, or eating contraband food inside a low-security federal prison camp."
From Magistrate Judge Steve Kim's opinion in Perez v. Engleman(C.D. Cal.), decided two months ago but just recently affirmed by District Judge George Wu:
Petitioner Jonatan Perez is a federal inmate in the custody of the Bureau of Prisons (BOP) who lost 41 days of good-conduct-time credit (among other sanctions) after a BOP disciplinary decision finding that he had engaged in conduct disrupting or interfering with prison security and operations. Petitioner was identified in a public TikTok video made with a contraband cellphone showing him and several other inmates preparing, cooking, or eating contraband food [shown above -EV] inside a low-security federal prison camp….
When interviewed, the suspected inmates remarked that it was "very easy and convenient" to get contraband food into the prison camp. Petitioner added that "he used to be a Chef" and "would help cook inside the dorm and help others make food." …
No express BOP regulation, however, prohibits video recording or social media posting as such. BOP investigators thus had to rely on a catchall regulation—as pertinent here, prison code 199—prohibiting conduct that (a) disrupts or interferes with the security and orderly operation of a BOP facility, and (b) is "most like" an otherwise expressly prohibited act. Since cellphones or similar electronic devices—essential to creating video content or posting it on social media—are of course banned inside federal prisons, petitioner and the other inmates identified in the TikTok video were each charged in an incident report with generally prohibited disruptive conduct most like the expressly prohibited possession, introduction, or use of a contraband device….
Petitioner sued, claiming that there wasn't enough evidence supporting the discipline, but the court ultimately agreed with the prison:
From Webb v. Aspen View Academy, decided Thursday by Magistrate Judge Scott Varholak (D. Colo.); the plaintiff was the Business Manager of a public charter school, and alleges she was fired in part based on a Facebook post (though there's a lot more there as well, discussed in the long opinion). Note that, the government may generally discipline (including by firing) an employee based on the employee's speech if
the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
the speech is on a matter of purely private concern, Connick v. Myers (1983), or
the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).
Here's the court's analysis of items 2 and 3:
After examining the content, form, and context of Plaintiff's Facebook Posts, the Court concludes that Plaintiff's speech contained therein was a matter of public concern. The Plaintiff's speech in the Facebook Posts, as understood by Defendants, primarily concerned the safety and efficacy of COVID-19 vaccines. In the first exchange, Plaintiff added her input to a lengthy discussion regarding the safety of vaccines and opinions towards vaccine mandates, particularly as they related to schoolchildren. The discussion involved over a dozen individuals. In response to multiple individuals stating that they refused vaccines for their children based on research that they had conducted, Plaintiff stated: "I did lots of research and vaccinated both my son and daughter. You're welcome." Another individual who had an opposing viewpoint responded to Plaintiff's statement, and the two engaged in a back-and-forth discussion.
Candidly, the discussion devolved—with Plaintiff telling the other individual to "enjoy [her] cancer," and the other individual stating that she "pit[ied]" Plaintiff's children and sarcastically asking for "someone [to] pass this bitch a cookie." But the core communication related to which viewpoint regarding vaccines (and, as Defendants understood it, COVID-19 vaccines specifically) was more supported and more protective of children. This topic is one of public concern….
A similar analysis applies to the second Facebook post. There, Plaintiff states that she has received the COVID-19 vaccine in order to "be able to reduce the spread, travel[,] and not have to wear a mask per our public health order." Plaintiff states her belief that others should "get a vaccination or wear a mask to protect others," and that doing so is "good for the human race." Plaintiff concludes by encouraging others to "ask YOUR [doctor] what they think, [because] they'll suggest the vaccine and administer it while wearing a mask!!!" Plaintiff's post received numerous responses from different individuals, many of whom supported her viewpoint and many of whom opposed it.
Again, Plaintiff's speech contains arguably offensive content, with Plaintiff stating that the "[c]onspiracy theories, and big pharma stuff is bullshit…STFU!!" But the plain message of Plaintiff's speech—supporting the COVID-19 vaccine for adults and encouraging others to consult with their doctors on receiving the vaccine—was one of deep interest to the community.
The Town of Rose Bud restriction appears aimed at a particular proposed constitutional amendment, which would "require all schools receiving public funds to meet identical standards and would require universal access to pre-K education."
From Thursday's decision by Chief Judge Kristine Baker (E.D. Ark.) in For AR Kids v. Town of Rose Bud (paragraph numbers omitted):
For AR Kids is a Ballot Question Committee organized under Arkansas Law in December 2023 with the purpose of placing its "Educational Rights Amendment of 2024" on the November 2024 ballot. The proposed amendment would amend Article 14 of the Arkansas Constitution to, among other things, require all schools receiving public funds to meet identical standards and would require universal access to pre-K education….
You can see the text of the proposed Amendment here.
[P]laintiff challenges the Town's ordinance No. 2024-03 passed and adopted by the Town on June 17, 2024. {[The Ordinance] provides in part that "any business or religious or political entity desiring to solicit business, membership or signature for any purpose will be required to rent a booth or spot as selected by the City of Rose Bud, Arkansas, at any such event from which and only from which such solicitation activities may be conducted."} The Town seeks to enforce Ordinance No. 2024-03 at its upcoming event "Summerfest" which takes place in a public park from June 20, 2024, at 4 p.m. until June 22.
The Ordinance was first introduced at a meeting of the Town Council on June 13, 2024, after a member of the Ballot Question Committee inquired about seeking petition signatures at Summerfest.
Mayor Gorham stated at the June 13, 2024, meeting that Summerfest is happy to host the speech of political parties, but not the speech of ballot question committees because "this is a family environment, there is nothing political about this, this is not the type of place that you want to come and get bombarded and asked to sign a petition and read about it or anything like that."
Mayor Gorham clarified that the canvassers could not totally be banned under the law. He stated, "[i]t is not my belief that they should be out there, that they should be allowed to be out there, or what they're doing is right. I want that known, because what's on their ballot, I don't think 98 percent of the town agrees with, but there's nothing we can do, except vote the right people out and the right people in in November."
Justice Barrett's majority clarifies Glucksberg, Mandel, Din, and Knauff, but Justice Sotomayor's dissent really wants to talk about Loving, Obergefell, and Dobbs.
Every term, I find at least one sleeper case. These decisions were not on the public's radar, but reached some fairly significant constitutional holdings. In OT 2019, there wasAgency for Int'l Development v. Alliance for Open Society. In OT 2020, there wasBP v. Baltimore. In OT 2022, there wasMallory v. Norfolk Southern. This term, the sleeper case is Department of State v. Munoz.
Sandra Munoz, a U.S. citizen, married Luis Asencio-Cordero, an alien. (No, I will not use the neologism "non-citizen.") Under immigration law, the husband had to return to his home country, El Salvador, to apply for a spouse visa. However, the consular officer denied his visa. Eventually, the government cited the statute indicating that an alien is inadmissible due to some "unlawful activity." Long story short, the government suspected that Asencio-Cordero had some connections with the MS-13 gang. Since the husband was no longer in the United States, he had no mechanism to challenge the denial of his visa in court. However, his wife, who was a U.S. citizen, brought suit in the Ninth Circuit.
The Court split 6-3, along right-left lines. Justice Barrett wrote the majority opinion and Justice Sotomayor wrote the dissent. But to be clear, none of the Justices held that the husband was entitled to a visa. Indeed, I think all nine Justices agreed that the rationale given to Munoz--that her husband was suspected of having gang affiliations--afforded her all the process she was due. All nine Justices would have reversed the Ninth Circuit. I agree with Ed Whelan that Sotomayor's opinion should have been labelled "concurring in part and dissenting in part," or "concurring in the judgment," or something to that effect. But Sotomayor's "dissenting" appellation muddles the bottom line.
Justice Barrett's majority opinion performs an important service by cleaning up several loose ends in the relationship between immigration law and the Constitution.
First, the Court explained that under the doctrine of consular nonreviewability, "The Immigration and Nationality Act (INA) does not authorize judicial review of a consular officer's denial of a visa; thus, as a rule, the federal courts cannot review those decisions." Trump v. Hawaii is not to the contrary. Barrett wrote that in Trump, the Court "assume[d] without deciding that [the] plaintiffs' statutory claims [were] reviewable." I was always very dubious of that holding. When Justice Kennedy was the 5th vote, that assumption was necessary. But I doubt it is going forward. Should Trump prevail, his Justice Department would rely on non-reviewability to defeat a host of immigration-related challenges.
Second, the Court resolved another issue that Justice Kennedy left open in Kerry v. Din (2015):
In Din, this Court considered but did not resolve the question. A plurality concluded that a citizen does not have a fundamental right to bring her noncitizen spouse to the United States. 576 U. S., at 96. Two Justices chose not to reach the issue, explaining that even if the right existed, the statutory citation provided by the Executive qualified as a facially legitimate and bona fide reason. Id., at 105 (opinion of Kennedy, J.). Since Din, the existence of the right has continued to divide the Circuits. Today, we resolve the open question. Like the Din plurality, we hold that a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.
During the travel ban litigation, there was extensive debate about what the holding of Din was. Lower courts relied almost exclusively on Justice Kennedy's concurrence. But going forward, this issue has been neatly resolved.
Last month, I wrote a post titled "Austin Judges Shop For Cases With "Mutual Consent." I discussed at some length Judge David Ezra of the U.S. District Court for the District of Hawaii, who hears cases in the U.S. District Court for the Western District of Texas by "mutual consent."
I wrote:
It is well known in Texas that Judge Ezra fancies the high-profile cases, and consistently receives them. By my count, in the past year, he has presided over the buoys case, the S.B. 4 case, and the porn age verification case. All three of these cases have already been on, or will soon be, on the Supreme Court's docket. Most federal district court judges can go their entire careers without having a single case make it to the Supreme Court. But Ezra has three in a year. Is this a coincidence? No. Ezra could only have received these cases by his "mutual consent." Judge Pitman offered these cases to him, and he accepted them.
Mind you that Judge Ezra is actually a visiting judge from the District of Hawaii, or what Attorney General Sessions called a "judge sitting on an island in the Pacific." To the extent that Ezra was approved to sit in the Western District of Texas, it was to help with some dockets that are backlogged, such as immigration cases or criminal sentencing.
I received an email out of the blue from Judge Ezra. He wrote:
First, while technically correct that there are three Senior Judges in Austin, in practice Judge Sparks is currently on inactive Senior Status and Judge Nowlin has a very reduced case load. So in reality the bulk of the Austin docket is currently being handled by Judge Pitman and myself. You were correct that Judge Pitman controls the Austin docket, however, when he is unavailable or recused those cases are assigned to me in most instances. That was how the Buoy case and SB 4 case came to my docket. I did not seek out those cases. Judge Pitman will tell you that I have never asked for any particular case be assigned to my docket and the same is true for my San Antonio docket.
As for my sitting in the Western District I was not brought on board in 2013 to take any particular case or class of cases, including immigration cases. The border federal courts were and remain inundated and it was determined that I could be of most help working on civil cases, many of which are long and complex. This is particularly true in the Austin Division. This frees up Judge Pitman to work not only on civil cases but the time sensitive criminal docket. The situation in Austin became acute when the other active Judge in Austin Lee Yeakel retired into private practice last year.
Finally, I can assure you that anyone who actually knows Judge Pitman or any of the other judges in the Western District who are in a position to assign me cases will tell you I don't look for "big" cases. Judge Pitman assigns me cases in blocks and I don't even know the names of the cases until they are transferred to my docket. I also don't run away from a case because it may be difficult. By the way, since you mentioned that Chief Judge Moses was appointed by President Bush you must also know that I was appointed by President Reagan, not that either of those facts are in any way important to how we rule.
I asked Judge Ezra if I could quote his reply on the blog, and he replied:
…. [G]enerally when a federal judge corresponds privately with a law professor it is understood to be private. That is so they may have an open and full conversation without the judge feeling constrained by the concern his or her comments will be made public. That said, in this case I really have no concern about you quoting from my email. Everything I said there is absolutely true and does not intrude in anyway I can see into politics.
I do have a response to Judge Ezra, based on some remarks he gave at a recent meeting of the Federal Bar Association in Austin, but that will have to wait for another time. The Supreme Court's docket still detains me. But in the interest of completeness I wanted to share the Judge's remarks.
Erlinger v. United States presented yet another Armed Career Criminal Act (ACCA) case, but with a Fifth and Sixth Amendment angle. This dispute turned on whether the judge, rather than the jury, could determine whether three offenses were committed on separate occasions.
Justice Gorsuch wrote the majority opinion, finding that the jury had to make these findings. He was joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, and Barrett. Justice Gorsuch's poetic waxing about the jury suggests that he also has the majority opinion in Jarkesy, which will embrace a broad reading of the Seventh Amendment. This prediction is worth what you paid for it.
Justice Jackson wrote a solo dissent. She argued that Apprendi was wrongly decided.
I disagree for several reasons, including my overarching view that Apprendi was wrongly decided. Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority when it empowers judges to make factual determinations related to punishment and directs that a particular sentencing result follow from such findings.
I did not have that one on my bingo card. Jackson would decline to extend this precedent any further. I've proposed this strategy for originalist judges--even if some precedent stands under stare decisis factors, there is no obligation to extend it to new contexts. Jackson writes:
I recognize, of course, that Apprendi is a binding precedent of this Court, and one that "has now defined the relevant legal regime" for nearly a quarter century. Alleyne v. United States, 570 U. S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment). Given that reality, untangling the knots Apprendi has tied is probably infeasible at this point in our Court's jurisprudential journey. But considering the flaws inherent in Apprendi's approach, I cannot join today's effort to further extend Apprendi's holding, particularly when there is a well-established recidivism exception to the Apprendi rule that applies to the circumstances of the case before us now.
As a long-time district court judge, Justice Jackson seems to have lost some faith in the ability of the jury to decide complex issues. She would restore this power to the bench. She explained:
I write separately to provide an additional critical perspective on the Apprendi doctrine—one that is informed by how sentencing has actually worked on the ground, before and after Apprendi—and to note that applying the Apprendi rule to ACCA's occasions finding creates all sorts of practical problems that are easily avoided by simply allowing judges to do what they have always done.
Justice Gorsuch seems disturbed by Jackson's lack of faith in the jury.
