4/23/1985: Cleburne v. Cleburne Living Center, Inc. argued.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Equity Isn't Venti for the Government
Tomorrow the Supreme Court will hear oral argument in Starbucks Corp. v. McKinney. Read more in this piece at ScotusBlog by Ronald Mann. The question concerns the standard for injunctions sought by the NLRB.
Here is a note from the forthcoming edition of Ames, Chafee, and Re on Remedies, my casebook with Emily Sherwin:
NOTE ON GOVERNMENT PLAINTIFFS IN EQUITY
Does it matter that the plaintiff is the government? Or do the same equitable powers and limitations apply? Cf. National Labor Relations Board. v. P*I*E Nationwide, Inc., 894 F.2d 887, 893 (7th Cir. 1990) (Posner, J.): "The issuance of an injunction is the exercise of an equitable power, and is subject to the equitable constraints that have evolved over centuries in recognition of the heavy costs that injunctions can impose (including costs to innocent third parties) and the potential severities of contempt. . . . The principles of equitable jurisprudence are not suspended merely because a government agency is the plaintiff."
Combat Homelessness by Ending Exclusionary Zoning
The Eighth Amendment provides little, if any, protection for the homeless. But courts can help them by striking down exclusionary zoning, which is the major cause of housing shortages that lead to homelessness.
Today, the Supreme Court heard oral argument in City of Grants Pass v. Johnson, a case which raises the issue of whether a law that criminalizes camping on public property by homeless people who have nowhere else to qualifies as "cruel and unusual punishment" under the Eighth Amendment. I highly doubt the Eighth Amendment can do much to help the homeless. But courts could help them in a different way: by striking down exclusionary zoning as a violation of the Takings Clause of the Fifth Amendment.
Today's oral argument reveal more sympathy for the plaintiffs' argument among the justices than I might have expected. But I highly doubt there are going to be five votes to affirm the Ninth Circuit's ruling in their favor. The fundamental problem with the plaintiffs' position is that the Cruel and Unusual Punishment Clause of the Eighth Amendment only restricts the types of punishments that the government can use, not the range of activities it can criminalize in the first place. Prof. Michael Mannheimer, a prominent academic expert on the Eighth Amendment, articulates this point well in his amicus brief in the case.
At the oral argument, Justice Neil Gorsuch suggested some criminalization of sleeping outside by homeless people might be forbidden by the Due Process Clause of the Fourteenth Amendment, or by the Excessive Fines Clause of the Eighth Amendment. I think he may be right about that, though I don't know enough about the relevant questions to be sure. These issues, however, are not before the Court.
Even if the plaintiffs prevail in this case or win a narrower victory in a future case, along the lines suggested by Gorsuch, letting people sleep in public streets and parks is far from a great solution to the homelessness problem. And it creates serious problems for the surrounding community, potentially rendering some public spaces unusable for their primary purposes.
But there is a much better way for judicial review to help alleviate homelessness: strike down exclusionary zoning laws under the Takings Clause of the Fifth Amendment.
As a recent Pew Charitable Trusts report explains, research shows that housing costs are a major cause of homelessness, accounting for most of the increase in it in recent decades. And the biggest driver of high housing costs is exclusionary zoning: building restrictions that make it difficult or impossible to build new housing in response to demand, especially in many of the most attractive metro areas on the East and West coasts. For example, single-family home zoning (an extremely widespread practice) bars the construction of multifamily housing affordable for working class and lower-middle class people.
The Pacific Legal Foundation amicus brief in the Grant Pass case provides further detail on how exclusionary zoning greatly increases homelessness. PLF attorney Mark Miller (author of the brief) has a helpful summary in a recent Fox News article.
Obviously, some people are homeless primarily because of severe mental illness or physical disabilities. But evidence indicates that a large part of the problem - and the vast bulk of the increase in it in recent decades - is caused by high housing costs driven by exclusionary zoning.
In our forthcoming Texas Law Review article, Josh Braver and I explain why exclusionary zoning violates the Takings Clause of the Fifth Amendment, which requires government to pay "just compensation" when it takes private property. As we show, this conclusion follows from the standpoint of both originalism and leading variants of living constitutionalism. We also explain how to deal with the badly flawed 1926 ruling in Village of Euclid v. Ambler Realty, upholding exclusionary zoning against a Fourteenth Amendment challenge. In Part IV, we explain how the Supreme Court can sideline Euclid without even having to overrule it.
Courts cannot do much to alleviate homelessness by using the Eighth Amendment. At least when it comes to the Cruel and Unusual Punishment Clause, they probably should not even try. But they can and should help the homeless by striking down exclusionary zoning.
The imperative of curbing exclusionary zoning is the goal of a growing cross-ideological YIMBY coalition, including leading economists and land-use experts across the political spectrum. Our article is a small example of this dynamic at work: I'm a libertarian originalist; Braver is a progressive living constitutionalist. But we both agree that exclusionary zoning violates the Takings Clause.
This issue isn't before the Supreme Court in Grants Pass. But perhaps it will come before the justices again sooner rather than later. If so, they could give a genuine boost to the struggle against homelessness, while simultaneously also providing much-needed protection for constitutional property rights.
"Despite Police Pushback, Biden Presses On With Visit To Syracuse After Two Cops Were Just Slain"
From the Daily Caller:
Biden is set to travel to the city on Thursday to promote the CHIPS and Science Act and announce a grant delivered by the legislation, according to CNY Central News. The president opted not to delay the trip following the loss Syracuse Police Officer Michael Jensen and Onondaga County Lt. Sheriff's Deputy Michael Hoosock in the line of duty on April 14 during a shootout.
Because officers are still grieving the loss, local law enforcement expressed worry to the White House over the timing of the trip, Jeff Moran, the president of the Syracuse Police Benevolent Association, the union representing the city's officers, told the Daily Caller.
"The department expressed their concerns to the Biden administration regarding his visit, and the quick turnaround of a Syracuse police officer being buried and an Onondaga County Sheriff's deputy being buried, and then the manpower that it would take and everything that our members have been through in the past week. Those concerns were expressed to the Biden administration and the Biden administration elected to move forward with the visit," Moran told the Daily Caller.
Brief Challenging Texas Restriction on "Sexual Gesticulations Using Accessories or Prosthetics That Exaggerate … Sexual Characteristics"
I was delighted to sign on to this amicus brief supporting the challenge to Texas's S.B. 12 (Woodlands Pride, Inc. v. Paxton (5th Cir.)), which was filed on behalf of Prof. Dale Carpenter (SMU), Dean Erwin Chemerinsky (Berkeley), the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, and me. Here's a summary of the Texas statute, from the brief:
{S.B. 12 restricts "[s]exually oriented performance[s]," which are defined as one that features nudity or "sexual conduct" and "appeals to the prurient interest in sex." See Tex. Penal Code § 43.28(a)(2). Sexual conduct, in turn, is defined as, among other things, "the exhibition of sexual gesticulations using accessories or prosthetics that exaggerate male or female sexual characteristics." Id. § 43.28(a)(1)(E). None of the key terms—"sexual gesticulations," "accessories or prosthetics," "exaggerate"—are further defined.
Texas restricts these performances three ways: (1) S.B. 12 criminalizes the performers by making it a crime to "engage[] in a sexually oriented performance" "on public property" where it "could reasonably be expected to be viewed by a child" or "in the presence" of a minor, id. § 43.28(b); (2) it regulates non-public, commercial properties by prohibiting anyone who controls the premises of a commercial enterprise from allowing a restricted performance on the premises in a child's presence, Tex. Health & Safety Code § 769.002; and, (3) it proscribes a municipality or county from authorizing such a performance "on public property" at all or "in the presence of an individual younger than 18," Tex. Loc. Gov't Code § 243.0031(c)(1)–(2). The defined performances are banned regardless of whether they have literary, artistic, political, or scientific value.}
Here's the summary of the argument:
[S.B. 12] is an unconstitutional content-based restriction on First Amendment-protected speech. The Supreme Court has repeatedly held that similar laws targeting "sexually oriented" speech are content-based and subject to strict scrutiny.
Next Year In Jerusalem
Every year at the close of the Passover seder, Jewish people say "Next year in Jerusalem." In my life I have always repeated that phrase without much thought. Of course I could spend next year in Jerusalem; why wouldn't I? This year, that line takes on a new significance.
I weep at the situation facing Jewish students at elite institutions. Rabbis told Jewish students to return home because it is not safe. Temples hired armed guards to chaperone students to religious services. People wearing Yarmulkes are being berated with the most vicious anti-semitic slurs, and are even being physically attacked. I would commend essays in the Free Press by students from Columbia and Yale.
Let us not forget that this is what years of indoctrination on microaggressions, intersectionality, and DEI have wrought. Next year, may we all be in Jerusalem, and may the Department of Education Civil Rights division be very busy.
Ohio AG Asks State Supreme Court To Bar Universal Injunction
Can a state trial court issue an "universal injunction" against all parts of a new law, even though "only two named plaintiffs have alleged narrow harms from only one part of the law."
The Ohio legislature recently enacted, over the Governor's veto, a law concerning transgender minors. The law was challenged in a state trial court. Two named plaintiffs asserted an injury to challenge particular portions of the law. Yet, the judge entered what is in effect a universal injunction. For example, neither of the plaintiffs are student athletes, but the court enjoined provisions of the law concerning athletics.
Today, Ohio Attorney General Dave Yost, through Solicitor General Elliot Gaiser, filed an emergency motion in the Ohio Supreme Court to confine the trial court's "injunction to the limits of judicial power."
Here is a snippet from the Introduction:
A trial court has gone far beyond its power to enter a so-called "universal injunction" against an entire new law, in all applications, as to all the parts of the law—despite the fact that only two named plaintiffs have alleged narrow harms from only one part of the law. . . . The court could have granted preliminary relief to two plaintiffs who alleged only a potential desire for medication, under the principle that injunctions should be no broader than needed to protect plaintiffs. Instead, despite the lack of any allegation—let alone a showing—of harms from the rest of the law to Plaintiffs or other 2 Ohioans, the court pronounced that none of the law can go into effect—leaving Ohio families open to all the harms that their elected representatives voted to avert.
The motion invokes the U.S. Supreme Court's order in Labrador v. Poe, which I wrote about last week:
Indeed, one week ago, on April 15, the U.S. Supreme Court followed these same principles of equity to stay a federal trial court's preliminary injunction against enforcement of the Idaho analogue to Ohio's law—which prohibits performing gender transition services on minors—except as to the parties before that Court. Labrador v. Poe, 601 U. S. ____, 2024 WL 1625724 (S. Ct. April 15, 2024). Because a Franklin County judge issued an injunction unbounded by the clear limits on its power, the Relators seek an emergency writ to conform the injunction to Ohio law.
Justice Gorsuch's concurrence focused on federal courts issuing universal injunctions against state laws, but the reasoning would apply in a similar fashion to state courts issuing universal injunctions against state laws--at least where state courts follow the same principles of Article III jurisprudence. (My understanding is that Ohio courts track Supreme Court doctrine, but I am not an expert in this area of state law.)
The brief also invokes Whole Woman's Health v. Jackson:
Second, twenty-five years ago, this Court improperly issued a writ that effectively enjoined all the State's common-pleas judges from following a set of tort-reform laws even though no plaintiff could show immediate harm from those laws. State ex rel. Ohio Acad. of Trial Laws. v. Sheward, 86 Ohio St. 3d 451 (1999). That was a mistake. See id. at 516 (Moyer, C.J., dissenting); see also Whole Woman's Health v. Jackson, 595 U.S. 30, 39 (2021) ("an injunction against a … court or its machinery would be a violation of the whole scheme of our Government") (internal punctuation omitted). But it did have the imprimatur of four Justices. This case is Sheward squared: a single judge has effectively told every other judge in the State that he or she cannot follow the will of the People as expressed through a legislative supermajority.
The basis of the trial court's ruling was the single-subject provision of the Ohio Constitution, which limits how many subject can be addressed in a single bill. (Judge Sutton wrote about this clause in 51 Imperfect Solutions.) The trial court ruled that denying standing "would insulate legislation from single-subject constitutional scrutiny without class certification or unless a coalition of plaintiffs could be assembled to cover the wide variety of subjects massed in a single piece of legislation."
There is a fascinating question about the relationship between the single-subject rule and the writ of erasure fallacy. Can a court actually "erase" a statute that does not conform with certain procedural requirements under state law? Wouldn't the remedy have to be universal in that regard? Imagine if there was no Enrolled Bill Rule, what would a court do? Stated differently, can a court "erase" an entire statute even if only parts of the statute injure a named plaintiff?
I don't know the answer to these questions, but I think they would likely have to be resolved subsequent to any standing inquiry. A bill has a finite number of provisions. It should not be difficult for sophisticated civil rights groups to find a plaintiff to challenge each provision. When courts issue dubious standing rulings, they often assert that someone must have standing, or that class action certification is too complicated. That's the point. It isn't easy to get into federal (and in some cases, state) court.
Because this issue will be resolved entirely on the basis of state law, an appeal to the United States Supreme Court will not be possible. The state court will have the final say here.
"World on the Brink" -- Interviewing Dmitri Alperovitch
Episode 501 of the Cyberlaw Podcast
Okay, yes, I promised to take a hiatus after episode 500. Yet here it is a week later, and I'm releasing episode 501. This is my excuse. I read and liked Dmitri Alperovitch's book, "World on the Brink: How America Can Beat China in the Race for the 21st Century." I told him I wanted to do an interview about it. Then the interview got pushed into late April because that's when the book is actually coming out.
So sue me. Anyway, I'm back on hiatus.
The conversation with Dmitri outlines his background in cybersecurity and geopolitics, beginning with his emigration from the Soviet Union as a child through the founding of Crowdstrike and becoming a founder of Silverado Policy Accelerator and an advisor to the Defense Department. Dmitri shares his journey, including his early start in cryptography and his role in investigating the 2010 Chinese hack of Google and other companies, which he named Operation Aurora.
Dmitri opens his book with a chillingly realistic scenario of a Chinese invasion of Taiwan. He explains that this is not merely a hypothetical exercise, but a well-researched depiction based on his extensive discussions with Taiwanese leadership, military experts, and his own analysis of the terrain.
Then, we dive into the main themes of his book -- which is how to prevent his scenario from coming true. Dmitri stresses the similarities and differences between the US-Soviet Cold War and what he sees as Cold War II between the U.S. and China. He argues that, like Cold War I, Cold War II will require a comprehensive strategy, leveraging military, economic, diplomatic, and technological deterrence.
Dmitri also highlights the structural economic problems facing China, such as the middle-income trap and a looming population collapse. Despite these challenges, he stresses that the U.S. will face tough decisions as it seeks to deter conflict with China while maintaining its other global obligations.
We talk about diversifying critical supply chains away from China and slowing China's technological progress in areas like semiconductors. This will require continuing collaboration with allies like Japan and the Netherlands to restrict China's access to advanced chip-making equipment.
Finally, I note the remarkable role played in Cold War I by Henry Kissinger and Zbigniew Brzezinski, two influential national security advisers who were also first-generation immigrants. I ask whether it's too late to nominate Dmitri to play the same role in Cold War II. Just remember that you heard it here first!
You can download episode 501 here.
The Cyberlaw Podcast is open to feedback. Send comments to @stewartbaker on Twitter or to CyberlawPodcast@gmail.com. Remember: The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
For Those Who Want a More Musical Volokh
Volokh, apparently from the place name Wallachia (Romania), is a klezmer (East European Jewish) musical composition, or perhaps a kind of such composition.
District Court Unseals Sentencing Memorandum in Case Involving Detroit's "Topless Prophet"
From Judge Linda Parker's opinion Thursday in U.S. v. Markovitz (E.D. Mich.); the defendant is the author of Topless Prophet: The True Story of America's Most Successful Gentleman's Club Entrepreneur, though the criminal case appears unrelated to the book:
Charles Blackwell initiated this miscellaneous action to unseal the sentencing memoranda in the criminal proceedings against Defendant Alan Markovitz in Case No. 23-cr-20058. In the criminal matter, Markovitz pled guilty pursuant to a Rule 11 plea agreement to one count of making a false statement in violation of 18 U.S.C. § 1001(a)(2). Prior to sentencing, only the United States filed a sentencing memorandum. The memorandum was sealed pursuant to an order granting the government's motion to seal—both of which were also sealed. Markovitz delivered a letter to the Court prior to sentencing, which was never filed on the docket….
Blackwell seeks to unseal the sentencing "memoranda," arguing that the public has a common law and First Amendment right to access. Blackwell further argues that the sealing of the records was done procedurally and substantively in violation of Sixth Circuit case law, specifically In re Knoxville News-Sentinel Co. (6th Cir. 1983). Blackwell points out that no motion to seal the records was ever filed on the public docket in the criminal matter, and he argues that the complete sealing of the documents suggests that efforts were not made to narrowly tailor the non-disclosure.
In response, the United States suggests that Blackwell has no right to "intervene" to seek the unsealing of the documents at issue. The United States then argues that its sentencing memorandum was properly sealed because it contained "sensitive information that could implicate the safety of an individual." The United States acknowledges that there is only one paragraph in its memorandum containing sensitive information; however, it maintains the entire memorandum was sealed "because it gave context to the sensitive information." Nevertheless, the United States offers to file a redacted sentencing memorandum which balances the need to protect the sensitive information and the public's right to access.
The Bail Project Isn't Liable for Crimes by People It Bailed Out
From Troutt v. The Bail Project, Inc., decided Friday by the Kentucky Court of Appeals (opinion by Judge Pamela Goodwine, joined by Judge Christopher McNeill):
On February 24, 2022, the Troutts filed a complaint against TBP alleging TBP was negligent in posting a bail bond for Michael DeWitt …, loss of consortium of their daughter, and punitive damages. The suit arose out of a fatal accident between DeWitt and the Troutts' daughter Madelynn. According to the complaint, DeWitt has a criminal history dating back to 2012. Relevant to this appeal, on February 16, 2021, DeWitt was arrested in Louisville and charged with receiving stolen property (motor vehicle), public intoxication (controlled substance), criminal trespass, disorderly conduct, resisting arrest, and assault on a police officer resulting in physical injury.
On February 24, 2021, TBP posted a bond for DeWitt, and he was released from custody. Five days later, on March 1, 2021, DeWitt, while under the influence of amphetamines and benzodiazepines, drove a stolen vehicle and crossed the centerline of Dixie Highway in Jefferson County, causing a head-on collision with a vehicle driven by Madelynn, a 17-year-old. DeWitt was allegedly traveling 58 miles per hour one second before the impact, which occurred in a 45-mile-per-hour zone. Additionally, the Troutts alleged DeWitt was driving a stolen car containing six stolen guns. Tragically, Madelynn died at the hospital about forty-five minutes after the accident.
The Troutts claimed TBP was negligent in failing "to reasonably investigate DeWitt's criminal history and propensity to re-offend before posting his bail bond thereby permitting him to be released from jail." They also alleged TBP failed to comply with duties it undertook "to ensure DeWitt attended the drug rehabilitation program and other terms and conditions of bond," and "breached other duties of care not yet known" to the Troutts and other duties that "were the proximate cause" of the accident that resulted in Madelynn's death.
No, said the majority, because posting bail for someone doesn't create a duty to control his behavior:
Today in Supreme Court History: April 22, 1992
4/22/1992: Planned Parenthood v. Casey argued.
Monday Open Thread
What's on your mind?
Special Counsel Jack Smith Lacks Standing to Defend the D.C. Circuit's ruling on Presidential Immunity in the Supreme Court
Defendant standing must exist at all stages of any litigation and must be raised by the justices of the Supreme Court even if the litigants themselves fail to raise it
On Thursday, April 25th the Supreme Court will hear oral argument in Trump v. United States. I have signed an amicus brief in this case, along with former Attorneys General Ed Meese, Michael Mukasey, and Professor Gary Lawson, and with Citizens United, arguing that Special Counsel Jack Smith was unconstitutionally appointed by Attorney General Merrick Garland. Gene Schaerr filed the amicus brief, which grows out of a law review article that Gary Lawson and I published: Why Robert Mueller's Appointment as Special Counsel was Unlawful, 95 Notre Dame. Law Review 87 (2019). We claim that because Jack Smith was unconstitutionally appointed, he therefore lacks standing to defend the order of the D.C. Circuit denying Donald Trump's claim of inherent presidential immunity from criminal prosecution for acts taken while serving as President. Smith can no more defend the lower court order than can any random person picked off the street.
Jack Smith is in the eyes of the law a private citizen, and all the acts he has taken since his appointment on November 18, 2022 are null and void. This is as true of the acts Smith has taken in the Florida classified documents case, against Donald Trump, under the eye of the 11th Circuit, as it is of the actions Smith has taken in the D.C. District Court case, against Trump involving the events of January 6, 2021. All those he has imprisoned or entered into plea bargains with are free. Indeed, Jack Smith can be sued in torts for unconstitutionally depriving people of liberty and property.
The absence of standing to defend the D.C. Circuit's opinion below on Smith's part cannot be waived by Donald Trump's or anyone else's failure to raise it sooner. And, the absence of defendant standing must be raised sua sponte by any federal judge or Supreme Court Justice who Jack Smith purports to appear before in any case whether the case involves Donald Trump or anyone else. Standing must exist at all stages of litigation including throughout all authorized appeals and habeas corpus petitions.
We argue that under the Constitution only Congress can create the Office of Special Counsel to which Jack Smith was appointed. The power to create federal offices is an exclusively congressional power and may not be usurped by the executive branch. Congress, however, may by a clear law, vest in the Head of a Cabinet Department the power to create inferior offices and officers. It has done so for example for the Departments of Agriculture, Education, Health and Human Services, Transportation, and for the Department of Justice, but specifically only for the Bureau of Prisons, and not more broadly for other DOJ components.
Why would Congress deny the Attorney General the broad power it gives to other Cabinet Secretaries to create inferior officer Special Counsels? The answer is that Senators have always insisted on having a say in the selection of the U.S. Attorneys who can bring prosecutions against their political allies in their home States.
Nor would it be wise to give corrupt Attorneys General -- like those who served for Presidents Grant, Harding, Truman, and Nixon -- unlimited power to create Special Counsels to investigate their political enemies. Congress has wisely allowed the Attorney General to designate any one of the 92 Senate-confirmed U.S. Attorneys to be a Special Counsel to investigate high-level wrongdoing vigorously nationwide outside the jurisdiction of their home Districts. Thus, Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, was appointed a Special Counsel to prosecute wrongdoing in the District of Columbia by Scooter Libby, then-Vice President Dick Cheney's Chief of Staff. Libby was convicted and jailed. But, Congress has never given the Attorney General the power to turn private persons, like Jack Smith, neither nominated by the President nor confirmed by the Senate into "Special Counsels" with more power than Senate-confirmed U.S. Attorneys to prosecute the enemies of the President or the Attorney General.
It is critically important to American liberty that we read the organic statutes setting up the Justice Department as only authorizing the appointing of presidentially nominated and Senate-confirmed U.S. Attorneys to be Special Counsels. Our amicus brief, which we will now post on SSRN on the internet, examines the text of all of the Justice Department's organic statutes and proves conclusively that they are narrower than the organic statutes that create the Departments of Agriculture, Education, Health and Human Services, and Transportation, which allow the Heads of those Departments unlimited power to create inferior offices and officers.
Thus, the Agriculture Secretary "may appoint such officers and employees *** and such experts, as are necessary to execute the functions vested in him[,]" 7 U.S.C. 610(a). In contrast, the most empowering law cited by Attorney General Garland is 28 U.S.C. Section 515(a). It says that: "The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States Attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought."
This section allows the Attorney General to appoint a Senate-confirmed U.S. Attorney to have nationwide jurisdiction to prosecute high level wrongdoing, as the Attorney General properly did when he appointed U.S. Attorney David Weiss of Delaware to be Special Counsel for the prosecution of Hunter Biden, allowing Weiss to file charges anywhere in the U.S. and not only in Delaware. This section does NOT authorize the appointing of private citizen Jack Smith to be an inferior officer Special Counsel. Instead, it concerns the powers of people who have been properly appointed to Justice Department offices "under law" pursuant to other statutory provisions.
This is made clear by 28 U.S.C. Section 543. This section provides that "(a) The Attorney General may appoint attorneys to assist United States attorneys when the public interest so requires, including the appointment of qualified tribal prosecutors and other qualified attorneys to assist in prosecuting Federal offenses committed in Indian country." Section 543 is a grant of explicit inferior officer appointment power to the Attorney General, but only to appoint "attorneys to assist United States attorneys" not to replace them as Jack Smith's appointment has done!
Federal prosecutions of former President Donald Trump must be done in a constitutional way no matter how much he is hated for his actions of January 6, 2021 or for any other reason. Here, Special Counsel Jack Smith is an Emperor who wears no clothes.
Today in Supreme Court History: April 21, 1800
4/21/1800: Justice Alfred Moore takes judicial oath.
Cruel AND Unusual?
On Monday, the Supreme Court will hear argument in an Eighth Amendment case, City of Grants Pass, Oregon v. Johnson. One thing I will be watching for is whether the justices in their questions treat "cruel and unusual" as two separate requirements, or as one.
Here are a few paragraphs from "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution:
Read as a hendiadys, "cruel and unusual" would mean "unusually cruel." If "unusual" is taken as a term of art meaning "contrary to long usage," then the hendiadys would mean "innovatively cruel."
If "cruel and unusual" means "innovatively cruel," then there are no sequenced inquiries into whether a punishment is "cruel" and then "unusual." There is a single inquiry into innovation in cruelty. It is true that one could break this single inquiry into two analytical steps. First, is this punishment innovative? Second, does this punishment's innovation increase cruelty? Yet that is very different from the two steps associated with a two-requirements view. Those who see the phrase as containing two requirements typically ask first whether a punishment is cruel and then whether it is unusual, treating the two as distinct and unrelated inquiries. But if the phrase is taken as a hendiadys, as an essential unity, then these two inquiries—is the punishment innovative? and does the innovation increase cruelty?—are not really distinct at all. One tells the interpreter to look for innovation; the other tells the interpreter what type of innovation to look for.
In short, if the phrase is taken as a hendiadys, the prohibited punishments would not be ones that merely happen to be both cruel and unusual. Rather, the Clause would prohibit punishments that are new in their cruelty. A new, more painful form of capital punishment; a new, more damaging mode of incarceration (perhaps such as solitary con- finement); a new, more demeaning restriction on the freedom of movement of released offenders—all would be "innovatively cruel."
. . .
The fears expressed by the Anti-Federalists were not without foundation. Indeed, the first Congress prescribed the death penalty for anyone convicted of murder in a place under exclusive federal jurisdiction— adding, for the benefit of science and for greater deterrence, that the court could require "that the body of [the] offender . . . be delivered to a surgeon for dissection."
In other words, the concern behind the Cruel and Unusual Punishments Clause was about progress. But it was not Herbert Spencer's view of social progress as much as it was William Hogarth's view of the rake's progress. Times change and things can go downhill, and when they do, there needs to be something in the Constitution to resist the devolving standards of decency.
A slide into severe punishments was not, however, thought to be inevitable. Although there was little discussion of the Cruel and Unusual Punishments Clause at the time of its ratification, what discussion there was shows a more subtle, two-sided view of innovation: Legislators should be constrained from innovations that increase cruelty, but they should be encouraged to adopt innovations that ameliorate it. The reading given here exactly fits that two-sided view: "Cruel and unusual" is a hendiadys that prohibits not all innovation in punishment, but only innovation that brings new cruelty.
Second, this reading can lead to an inquiry that is better suited to judicial decision making. What makes this second advantage possible is that a hendiadic reading of the phrase allows a broad, non-evaluative reading of "cruel." If "cruel" is taken as an evaluative term, judges are forced to make absolute judgments about what is or is not cruel. That is a difficult question. Of course some punishments are more cruel than others, but the point of difficulty is the constitutional cut-off. If punishments are be- ing judged on whether they are cruel in a sense like "unjustifiably cruel" or "malevolently cruel"—then the question is an inescapably moral one, a question on which individual judgments are likely to vary widely. If the question is shifted to an inquiry into the subjective intentions and knowledge of government officials, that inquiry too is one on which individual judgments will diverge. Nor is the question made easier by directing it towards a moment in history, as in, "What was considered cruel in 1791?" That is still an abstract moral question, yet with the added difficulty of being a question the present is asking of the past.
But the judicial task changes if the phrase is read as a hendiadys and "cruel" is understood in the sense of "harsh." If what sorts the constitutional punishments from the unconstitutional ones is not whether they are "unjustifiably cruel," but whether they are "innovatively harsh," then the judicial inquiry is a comparative one. Judges would not be determining the quantum of cruelty that is constitutionally permissible, but they would instead be asking whether a punishment shows innovation in its harshness. This task is comparative, and such a task tends to be more amenable to judicial competence.
House Passes REPO Act Giving President Authority to Confiscate Russian Government Assets in the US and Transfer them to Ukraine
It's a good idea that will hopefully be imitiated by our allies.
In addition to finally passing long-delayed and much-needed military assistance to Ukraine, the House of Representatives today also enacted the REPO Act. That law gives the president the authority to confiscate $6 billion in Russian government assets currently frozen in the United States, and transfer them to Ukraine, in order to assist that country in resisting Russia's brutal war of aggression.
The Senate will almost certainly pass the REPO Act, as well, and President Biden seems certain to sign it and act on it. While $6 billion isn't all that much relative to the costs of the war, hopefully this US action will incentivize our European allies to confiscate the nearly $300 billion in Russian state assets currently frozen under their jurisdiction.
I have long advocated this idea, which is overdue. In a November post, I outlined the case for it, and addressed a number of objections, including claims that confiscation would violate the Takings Clause of the Fifth Amendment, sovereign immunity arguments, arguments that confiscation is unfair to the people of Russia, and fears that it would set a bad precedent deterring foreign investment in the US.
Here's an excerpt:
There is a staggering $300 billion in frozen Russian state assets located in Western nations backing Ukraine…. To put this figure in perspective, it's worth noting that the total amount of US aid to Ukraine from February 2022 through July 31, 2023 was about $77 billion. The European Union, individual European states, and Canada, gave approximately $165 billion during the same period…. The $300 billion in frozen assets is equal to some two years of total Western assistance to Ukraine at the current pace of spending!…
[I]n the US the private property of foreigners is protected against confiscation by the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" if it takes "private property." Most European nations have similar constitutional protections for private property rights, as does the European Convention on Human Rights.
But the Fifth Amendment and its European analogues do not offer the same kind of blanket protection to the property of foreign governments. This distinction undermines claims by some critics that uncompensated seizure of Russian state assets would violate the Takings Clause and similar constitutional guarantees in Europe. It also mitigates concerns that confiscating Russian government assets would create a dangerous slippery slope. Private property rights of foreigners would remain protected by constitutional guarantees….
Oona Hathaway argues that confiscating Russian state assets would violate sovereign immunity. I think the Tribe report offers compelling responses to this argument (pp 60-64).
In addition, I am not convinced that sovereign immunity is actually a just principle that we have a duty to obey. It is in fact a perversion of justice, enabling rulers to escape accountability for violating human rights and other injustices they perpetrate. It was a mistake to read it into the US Constitution. It is equally a mistake to allow it to be a principle of international law. Some laws are so deeply unjust that we have no duty to obey them. The law of sovereign immunity is one such case.
At the very least, sovereign immunity should not be permitted to shield authoritarian states like Putin's regime from having their assets confiscated in order to combat their wars of aggression, mass murder of civilians, and other large-scale human rights violations. Such rulers no more deserve sovereign immunity than Mafia bosses….
"Last Week, a … [UC Berkeley] Professor Confronted a Muslim Student During a Dinner for Graduating Law Students"
From NBC, what strikes me as a misleading characterization of Professor Catherine Fisk's confronting a student who pulled out a microphone to orate at a dinner organized at the professor's (and Dean Erwin Chemerinsky's) house.
Here are the closing paragraphs of yesterday's NBC News article, "Columbia University protesters resume demonstrations after mass arrests":
Is this really a fair and objective summary of what happened at the Chemerinsky dinner? "Confronted a Muslim student," with no further explanation, strongly implies that the student was confronted for being a Muslim, rather than for trying to give a speech in the middle of a social occasion. I know of no evidence that Dean Chemerinsky or Professor Fisk (they are married) targeted the student for her religion, as opposed to her disruptive conduct.
