The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Migrants wait in line at the U.S.-Mexico border. (Carlos A. Moreno/ZUMAPRESS/Newscom)

In a recent New York Times article (non-paywall version here), my Cato Institute colleague David Bier - a leading expert on immigration policy - explains how President Biden can alleviate pressure on the southern border by expanding opportunities for legal migration:

A bipartisan immigration deal to restrict border crossings took a hit last week when Donald Trump pushed Congress to reject it. It's the latest in a series of episodes over the last decade where one party blows up a deal just as the other gives in. President Biden wants to break this cycle, but to get the politics right, he must get the policy right first.

As long as the border is in chaos, Mr. Trump bets voters will continue to prefer him on this issue. He's almost certainly right. But perhaps it's chaos, not immigration per se, that upsets voters, and Mr. Biden can curb the chaos by letting more immigrants come to the United States legally….

It seems that some Republicans would just as well let the crisis at the border persist. In response, Mr. Biden must not merely blame Republicans for blowing up the deal and then leave the issue alone. The president will always receive the bulk of the blame whenever there is lawlessness and chaos….

The politics here are frustrating policy reform, but better policy could help the politics. Mr. Biden can double down on expanding parole sponsorship programs that allow people lawful and orderly ways to enter the United States.

Letting people in through private sponsorship programs negates the need to expand resources because they'll have the opportunity to line up jobs and housing in advance of getting here. If all else fails, they will have U.S. sponsors to help them out if necessary.

Some Republicans may not like immigrants coming in — legally or otherwise — but American voters don't buy invasion rhetoric to describe people getting vetted to travel here legally. Fearmongering about drug smugglers and terrorists can work when people enter illegally.

Right now, Mr. Biden has only created legal processes for five countries — Ukraine, Cuba, Haiti, Nicaragua and Venezuela — and he has set a cap far below demand. These processes are legal and orderly. Expanding these procedures into other major origin countries and letting more people enter legally will reduce the flows to more manageable levels.

As discussed in Chapter 6 of my book Free to Move, it is indeed the case that real or imagined chaos at the border is a major factor in stoking public hostility towards immigration. This creates a vicious dynamic where restrictionism leads to increased illegal entry (as desperate migrants have no other way to escape violence, poverty, and oppression), which in turn bolsters support for more draconian restrictions, and so on.

The best way to break the cycle is by making legal migration easier. Just as the abolition of alcohol Prohibition massively reduced illegal black market sales of booze, so making legal migration easier cuts down the illegal kind, and reduces pressure at the border. It also bolsters the US economy and helps people fleeing oppression and poverty find freedom and opportunity.

In a November USA Today article, David Bier and I made the case for this approach in more detail and outlined a variety of additional measures Biden could take to make legal migration more accessible.

Relying on discretionary executive action is not ideal. Such policies could potentially be reversed by future unilateral executive action. It would be better if Congress and the executive would make these policies permanent. But executive action along these lines is authorized by existing statutes, and is far better than either doing nothing or giving in to restrictionists (thereby feeding the vicious circle rather than breaking it).

Donald Trump after the Iowa Caucuses — Tannen Maury/UPI/Newscom

Today, I filed an amicus brief in Trump v. Anderson, the Supreme Court case addressing the issue of whether Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. It explains why a prior criminal conviction on charges of insurrection (or any other criminal charges) is not necessary for for Trump to be disqualified. Text, original meaning, and O.J. Simpson all support that conclusion! I previously wrote about this aspect of the case here. Here's an excerpt from the brief's Summary of Argument:

Section 3 of the Fourteenth Amendment… safeguards our republic against the threat posed by public officials who have previously undermined it by engaging in insurrection or giving "aid and comfort" to the enemies of the United States. U.S. Const. Amend. XIV, § 3. Having shown their true colors once, these insurrectionist present and former officials are not permitted a second chance to undermine the republic….

The key questions before this Court are whether Donald Trump is disqualified under Section 3, and who has the authority to determine that Section 3 is applicable and, therefore, should be applied.

As this Court undertakes the weighty task of reviewing this case, this amicus brief hopes to provide guidance on two specific issues that have been raised repeatedly by Petitioner and Petitioner's amici. The first is whether Mr. Trump had to be convicted of a crime before he could be disqualified under Section 3. The second is whether disqualification in the absence of such a conviction violates Mr. Trump's right to due
process under the Fourteenth Amendment…. [T]he answer to both questions is a resounding "No."

Part I explains why a criminal conviction is unnecessary for disqualification under Section 3. A criminal conviction is not required under the text and original meaning of the Fourteenth Amendment. In addition, the distinction between civil and criminal proceedings is a fundamental aspect of our legal system. The same events can give rise to both criminal charges and civil liability or (as in this case) disqualification. One is not a prerequisite to the other. Indeed, as demonstrated by the famous case of O.J. Simpson, a person acquitted of a crime may nonetheless be subject to civil liability for the very same events.

If there is no general requirement of a criminal conviction, there can be no requirement of a specific conviction under 18 U.S.C. § 2383, the federal criminal insurrection statute. Conviction under Section 2383 is not and was not designed to be the exclusive mode of enforcing Section 3 disqualification.

Part II explains why disqualification in the absence of a criminal conviction does not violate Mr. Trump's due process rights. The Due Process Clause of the Fourteenth Amendment only applies to situations where a person is deprived of "life, liberty, or property." U.S. Const. Amend. XIV, § 1. Neither life, nor liberty, nor property is lost by virtue of disqualification from various public offices. Even if the Due Process Clause does apply, the civil process and standard of proof used by the Colorado courts are more than sufficient.

I am grateful to Gerson Smoger, a highly experienced litigator and Supreme Court amicus brief writer, for his assistance in drafting the brief on short notice. Prof. Gerard Magliocca, one of the leading academic experts on Section 3, provided valuable insights on the historical record.

I have written about other issues related to the Section 3 litigation in a variety of writings, most extensively here and here.

From today's Oregon Court of Appeals decision in Cider Riot, LLC v. Patriot Prayer USA, LLC, in an opinion by Chief Judge Erin Lagesen, joined by Judge Jacqueline Kamins and Megan Jacquot:

Plaintiff Cider Riot, LLC, is a brewery and bar in Northeast Portland. Plaintiff Goldman-Armstrong is its owner and operator. This tort case arises, for the most part, out of a 2019 clash between patrons of Cider Riot, who are associated with Antifa, and, among others, defendants Gibson, Kramer, Ponte, Willis, and Lewis, all of whom are associated with a group or movement known as Patriot Prayer.

Defendant Patriot Prayer USA, LLC, is a limited liability company owned entirely by Gibson. It has no members other than him. Those who identify with Patriot Prayer hold starkly divergent views from those who identify with Antifa. Those divergent views have generated immense hostility, which has led to confrontations, which has resulted in violence between those holding opposing views.

The clash at the heart of this case began as a heated exchange of political viewpoints between defendants, who were on public property adjacent to the brewery and bar, and plaintiffs' patrons, many of whom were sitting in the bar's outdoor seating area. Ultimately, the verbal dispute escalated into some physical confrontations. This resulted in injuries to some of plaintiffs' patrons and, plaintiffs allege, a range of economic and noneconomic losses. Several days after the incident, Gibson urged people to report Cider Riot to the OLCC. Other individuals made online comments disclosing the names and addresses of plaintiffs' business partners.

For their involvement in that clash, encouraging complaints to the OLCC, and identifying plaintiffs' business partners, plaintiffs seek to hold all defendants liable for four torts: negligence, trespass, intentional infliction of emotional distress, and intentional interferences with economic relations….

The Court of Appeals held that some of the claims against Gibson should be thrown out, at the "anti-SLAPP motion" stage (a means for claims arising out of constitutionally protected activities to be promptly dismissed), but others—based on Gibson's allegedly personally egging someone on to fight a bar patron—could continue. I focus here on the claims against Gibson because the other individual defendants' defenses were rejected as untimely, and thus weren't substantively discussed by the court.

Free Speech

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Greg Abbott speaks into a microphone — Texas Gov. Greg Abbott ( Bob Daemmrich/Zuma Press/Newscom)

I have previously criticized Texas's badly flawed argument that illegal immigration and cross-border drug smuggling qualify as an "invasion," thereby triggering the state's constitutional authority to "engage in war" in response (see also here). Prominent legal scholars Frank Bowman (Univ. of Missouri) and Steve Vladeck (Univ. of Texas) have recently posted articles on the same topic, at Just Security and Lawfare, respectively.

Bowman offers a detailed originalist critique of the invasion argument, surveying a number of relevant founding-era sources:

Throughout the Constitutional Convention and the state ratification debates that followed, delegates and commentators used the term "invasion" over and over. With a handful of exceptions where "invasion" is used metaphorically, as when referring to an "invasion of rights," the word invariably refers to a hostile armed incursion into or against the territory of the states or the nation, an incursion that must be met with a military response….

Section 10 of Article I reserves to the national government exclusively the conduct of foreign policy. It also prohibits states from maintaining regular armies and navies in time of peace, and absolutely bars them from "engag[ing] in War, unless actually invaded, or in such imminent danger as will not admit of delay."

In other words, the constitutional response to "invasion" is "war." Section 10, when read together with the provision of Article I, Section 8, that grants Congress the power "to declare war," confers the responsibility for national defense – for making war – on the national government. The Constitution leaves only one narrow exception for emergencies in which states can "engage in War" if they are "actually invaded" or under imminent threat of invasion or a "Danger" so great that it would merit war in response….

At no point in the Constitutional Convention or any of the state ratification debates does anyone, except when speaking metaphorically, employ "invasion" to describe a non-violent, non-military event…..

More to the present point, absolutely no one at the Constitutional Convention or the state ratification debates used the word to connote the peaceful movement of immigrants (lawful or otherwise) from one country to another.

I discussed the original meaning of "invasion" here, highlighting (among other things) James Madison's unequivocal statement that "Invasion is an operation of war."

Vladeck recognizes (correctly, I think), that an attack by nonstate actors could qualify as an invasion, but notes that does not mean illegal migration does:

In a recent case involving a dispute with the federal government over Texas's placement of movable buoys in the Rio Grande, Texas has claimed that "invasions" can come from non-state actors—and that what's happening in Texas right now is an invasion.

The argument that non-state actors can "invade" states is certainly a reasonable one—especially in light of the historical and contemporary examples of the United States engaging in armed conflict with entities other than the militaries of foreign states. But that's about as far as Texas's argument makes sense. Indeed, three different courts of appeals have already rejected arguments that an uptick in unauthorized border crossings by migrants could qualify as an "invasion" for constitutional purposes.

In Padavan v. United States, for instance, the U.S. Court of Appeals for the Second Circuit rejected a claim by New York state elected officials that federal immigration policies vis-à-vis undocumented immigrants were facilitating an "invasion": "In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government." The Third Circuit followed suit three months later in New Jersey v. United States, dismissing New Jersey's argument because "[i]t offers no support whatsoever for application of the Invasion Clause to this case or for its reading of the term 'invasion' to mean anything other than a military invasion." (And the Ninth Circuit echoed both in a subsequent ruling.) As these cases make clear, however far the term "invasion" might be stretched, extending them to unauthorized border crossings by unarmed migrants just doesn't come close. Nor should it. Recall that the purpose of the Invasion Clause is to permit a state to engage in war against those invading it. The idea that Texas could "engage" in a "war" against such (mostly unarmed) foreign nationals is little more than a rhetorical flourish….

Both Bowman and Vladeck make many good points. Both articles reading for anyone interested in this issue!

I don't fully agree with all of their arguments. Most notably, I am not sure I am convinced by Vladeck's claim that a federal statute could override a state's right to engage in war even in a situation where the state really is facing an invasion. But that issue does not arise in a situation where supposed invasion is really just some combination of illegal migration and smuggling.

Whatever the right policy response to these challenges (I think it's to make legal migration easier and to end the War on Drugs), their existence doesn't authorize a state to wage war, or the federal government to suspend the writ of habeas corpus. Under the Constitution, both of these extreme measures would be permissible if there really was an invasion.

From today's opinion by Chief Judge Mark Walker (N.D. Fla.) in Students for Justice in Palestine at Univ. of Florida v. Rodrigues (see this Oct. 27, 2023 post for more on the background First Amendment issues):

On October 24, 2023, less than three weeks after Hamas's horrific attack on Israel and a spike in antisemitic hate crimes throughout the United States, the Chancellor of the Board of Governors sent a memorandum to each university president in the State University System, including Defendant Ben Sasse, President of the University of Florida. The memorandum described Hamas's attack and linked Hamas's actions to an organization called the National Students for Justice in Palestine, based on statements that the national organization made in response to events in Israel.

The Chancellor cited Florida's criminal law against providing material support to designated foreign terrorist organizations and implied that the national organization violated that statute based on its statements. The Chancellor then identified two student chapters of Students for Justice in Palestine that exist as registered student organizations at two of Florida's state universities. One of those chapters is Plaintiff, Students for Justice in Palestine at the University of Florida. The Chancellor incorrectly described these student chapters as "active National SJP Chapters" that "exist under the headship of the National Students for Justice in Palestine." In bold, the Chancellor stated: "Based on the National SJP's support of terrorism, in consultation with Governor DeSantis, the student chapters must be deactivated."

A week after the Chancellor sent his memorandum, he addressed the matter again at a Board of Governors (BOG) meeting on November 9, 2023. At the meeting, the Chancellor indicated that the student chapters of the Students for Justice in Palestine, including Plaintiff, have constitutions that clearly state that their organizations are not subservient to or under the control of the national organization, as he had suggested in his memorandum. He also indicated that officials at the University of Florida had sought their own legal opinion about deactivating Plaintiff and the opinion raised concerns that officials at the University of Florida could be exposed to personal liability if they deactivated the student organization consistent with Defendant Rodrigues's memorandum.

Plaintiff filed suit about a week after this BOG meeting. Without dispute, the University of Florida has not deactivated Plaintiff as a registered student organization. But Plaintiff asks this Court to decide whether this memorandum and the threat of deactivation that this memorandum arguably represents violates Plaintiff's First Amendment rights to free speech and association.

Free Speech Campus Free Speech

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1/31/2006: Justice Samuel Alito takes oath.

From Park v. Kim, decided today by the Second Circuit (Judges Barrington Parker, Allison Nathan, and Sarah Merriam); this is the 13th case I've seen in the last year in which AI-hallucinated citations were spotted:

We separately address the conduct of Park's counsel, Attorney Jae S. Lee. Lee's reply brief in this case includes a citation to a non-existent case, which she admits she generated using the artificial intelligence tool ChatGPT. Because citation in a brief to a non-existent case suggests conduct that falls below the basic obligations of counsel, we refer Attorney Lee to the Court's Grievance Panel, and further direct Attorney Lee to furnish a copy of this decision to her client, Plaintiff-Appellant Park….

Park's reply brief in this appeal was initially due May 26, 2023. After seeking and receiving two extensions of time, Attorney Lee filed a defective reply brief on July 25, 2023, more than a week after the extended due date. On August 1, 2023, this Court notified Attorney Lee that the late-filed brief was defective, and set a deadline of August 9, 2023, by which to cure the defect and resubmit the brief. Attorney Lee did not file a compliant brief, and on August 14, 2023, this Court ordered the defective reply brief stricken from the docket. Attorney Lee finally filed the reply brief on September 9, 2023.

The reply brief cited only two court decisions. We were unable to locate the one cited as "Matter of Bourguignon v. Coordinated Behavioral Health Servs., Inc., 114 A.D.3d 947 (3d Dep't 2014)." Appellant's Reply Br. at 6. Accordingly, on November 20, 2023, we ordered Park to submit a copy of that decision to the Court by November 27, 2023. On November 29, 2023, Attorney Lee filed a Response with the Court explaining that she was "unable to furnish a copy of the decision." Although Attorney Lee did not expressly indicate as much in her Response, the reason she could not provide a copy of the case is that it does not exist—and indeed, Attorney Lee refers to the case at one point as "this non-existent case."

AI in Court

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This was a big week for AI-generated deep fakes. Sultan Meghji, who's got a new AI startup of his own, walked us through four stories that illustrate how AI will lead to more confusion about what's real and what's not. First, a fake Biden robocall urged people not to vote in the New Hampshire primary. Second, a bot purporting to offer Dean Phillips's views on the issues was penalized by OpenAI because it didn't have Phillips's consent. Third, fake nudes of Taylor Swift led to a ban on Twitter searches for her image. And, finally, podcasters used AI to resurrect George Carlin and got sued by his family for violating copyrightish law. The moral panic over AI fakery meant that all of these stories were too long on "end of the world" and too short on "we'll live through this."

Regulators of AI are not doing a much better job of maintaining perspective. Mark MacCarthy reports that New York City's AI hiring law, which has punitive disparate-impact disclosure requirements for automated hiring decision engines, seems to have persuaded NYC employers, conveniently, that none of them are using automated hiring decision enginess, so they don't have to do any disclosures. Not to be outdone, the European Court of Justice has decided that pretty much any tool to aid in decisions is an automated decision making technology subject to special (and mostly nonsensical) data protection rules.

Is AI regulation beginning to suffer from backlash? Could be. Sultan and I report on a very plausible Republican plan to attack the Biden AI executive order on the ground that its main enforcement mechanism, the Defense Production Act, simply doesn't authorize the measures the order calls for.

In other Big Tech regulation, Maury Shenk explains the EU's application of the Digital Markets Act to tech companies like Apple and Google. Apple isn't used to being treated like just another tech company, and its contemptuous response to the EU's rules for its app market could easily spur regulatory sanctions. Looking at Apple's proposed compliance with the California court ruling in the Epic case and the European Digital Market Act, Mark says it's time to think about price regulating mobile app stores.

Even handing out big checks to technology companies turns out to be harder than it first sounds. Sultan and I talk about the slow pace of payments to chip makers, and the political imperative to get the deals done before November (and probably before March).

Senator Ron Wyden, D-Ore. is still flogging NSA and the danger of government access to personal data. This time, he's on about NSA's purchases of commercial data. So far, so predictable. But he's also misrepresenting the facts by claiming flatly that NSA buys domestic metadata, ignoring NSA's clear statement that the metadata it buys is "domestic" only in the sense that it covers communications with one end inside the country. Communications with foreign countries that flow into and out of the U.S. have long been considered appropriate foreign intelligence targets, as witness the current debate over FISA section 702.

Maury and I review a Jim Dempsey's effort to construct a liability regime for insecure software. His proposal looks reasonable, but Maury reminds me that he and I produced something similar twenty years ago, that is still not even close to adoption anywhere in the U.S.

I can't help but rant about Amazon's arrogant, virtue-signaling, and customer-hating decision to drop a feature that makes it easy for Ring doorbell users to share their videos with the police. Whose data is it, anyway, Amazon? Sadly, I'm afraid we know the answer.

It looks as though there's only one place where hasty, ill-conceived tech regulation is being rolled back. China. Maury reports on China's decision to roll back video game regulations, to fire its video game regulator, and to start approving new games at a rapid clip -- though only after a regulatory crackdown had knocked more than $60 billion off the value of its industry.

We close the news roundup with a few quick hits:

Outside of AI, VCs are closing their wallets and letting startups run out of money
Apple launched what looks like an expensive dud – the Vision Pro
Quantum winter may be back as quantum computing turns out to be harder than hoped
And, speaking of winter, consumers and regulators seem to be cooling fast on self-driving cars in the wake of serious missteps by Cruise

Finally, as a listener bonus, we hear from Rob Silvers, Under Secretary for Policy at the Department of Homeland Security and Chair of the Cyber Safety Review Board (CSRB). Under Rob's leadership, DHS has proposed legislation to give the CSRB a legislative foundation. The Senate homeland security committee recently held a hearing about that idea. Rob wasn't invited, so we asked him to come on the podcast to respond to issues that the hearing raised – conflicts of interest, subpoena power, choosing the incidents to investigate, and more.

Download 489th Episode (mp3)

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An excerpt from this article in Saturday's New Yorker (the whole thing is much worth reading):

Sometime in the twenty-tens, it became common for students to speak of feeling unsafe when they heard things that offended them…. [C]olleagues at other schools [besides the law school] within Harvard and elsewhere feared that their administrators were using concepts of discrimination or harassment to cover classroom discussions that make someone uncomfortable. These colleagues become more and more unwilling to facilitate conversations on controversial topics, believing that university administrators might not distinguish between challenging discussions and discrimination or harassment. Even an investigation that ended with no finding of wrongdoing could eat up a year of one's professional life and cost thousands of dollars in legal bills….

Students across the political spectrum, but largely liberals, have told me that they felt it would be foolish to volunteer their opinions in class discussions, or even that they routinely lied about their views when asked. These self-censorious habits became even more conscious with the rise of the #MeToo and Black Lives Matter movements, such that a large range of political remarks—questioning abortion rights, calling a fetus an "unborn child," doubting the fairness of affirmative action, praising "color-blindness," or asking who should compete in women's sports—could be perceived as being on a continuum of bigotry. In this climate, it became increasingly difficult to elicit robust discussions because students were so scared of one another….

The events of October 7th—and an open letter issued that day with signatures from more than thirty Harvard student groups, holding "the Israeli regime entirely responsible for all unfolding violence"—changed the terms of the academic-freedom debate…. The two sides had effectively flipped: activist students, whose politics overlapped with principles of D.E.I., were engaged in speech that some faculty members, who were supportive of academic freedom, now wanted the university to treat as harmful….

Free Speech Campus Free Speech

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CNN reports on remarks Justice Sonia Sotomayor gave yesterday at the University of California at Berkeley.

"I live in frustration. And as you heard, every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting," Sotomayor, the court's senior liberal member, said at an event at the University of California, Berkeley School of Law.

"How can you look at those people and say that you're entitled to despair? You're not. I'm not," she said, responding to a question from the school's dean about how students there increasingly feel discouraged by the current court and how it's shaping American law. "Change never happens on its own. Change happens because people care about moving the arc of the universe toward justice, and it can take time and it can take frustration."

According to this Bloomberg report, she also finds the work taxing.

"And to be almost 70 years old, this isn't what I expected," Sotomayor said Monday during an appearance at the University of California, Berkeley's law school. "But it is still work that is all consuming and I understand the impact the court has on people and on the country, and sometimes the world. And so it is what keeps me going." . . .

"Cases are bigger. They're more demanding. The number of amici are greater, and you know that our emergency calendar is so much more active. I'm tired," she said. "There used to be a time when we had a good chunk of the summer break. Not any more. The emergency calendar is busy almost on a weekly basis."

Justice Sotomayor also expressed concern about they way some advocates present their cases to the Court. From the CNN report:

"I can't tell you how often I'll look at (Justice) Neil Gorsuch and I'll send him a note and say, 'I want to kill that lawyer.' Because he or she didn't give up that case. Because by the time you come to the Supreme Court, it's not about your client anymore. It's not about their case," she said. "It's about how that legal issue will affect the development of law and how you pitch it – if you pitch it too broadly, you're gonna kill the claims of a whole swath of people."

These later remarks may well provoke some interesting discussion about the obligations of Supreme Court advocates. It is a fair observation that zealous advocacy for an individual client may come at the expense of a broader cause otherwise aligned with that client's interest, as may happen when a criminal defendant's attorney petitions for certiorari in a case that is likely to result in a pro-prosecution ruling from the Court. Whether this means that lawyers should refrain from such representation, or simply consider the likely downside risks in crafting and presenting arguments, is an important question.

1/30/1939: Justice Felix Frankfurter takes oath.

Politics

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There is quite a bit of hyperbole about immigration policy and the southern border these days. To take one prominent example, Texas Governor Greg Abbott suggests there is an "invasion" of illegal immigrants that justifies state action under the Constitution. As a constitutional matter, this is not true.

It is not just politicians who are engaged in false, hyperbolic statements, however. Journalists and purported experts are doing it too, such as those who claim that Texas is "defying" the Supreme Court by continuing to put up c-wire on state and private land near the border with Mexico. According to these accounts, because the Supreme Court lifted an injunction that barred the federal government from removing c-wire where necessary for immigration enforcement activities, Texas is flouting the Supreme Court by continuing to place c-wire on state and private property. This is not true either.

In the relevant case, Department of Homeland Security v. Texas, Texas is suing the federal government, in tort, for the destruction of state property (c-wire barriers and the like). The district court generally concluded that Texas was right on the facts, but wrong on the law, because Texas could not seek money damages from the federal government due to sovereign immunity. The U.S. Court of Appeals for the Fifth Circuit enjoined the federal government from taking additional actions that remove or destroy c-wire barriers on state and private land, save where such actions were necessary to address a medical emergency, pending additional proceedings. Among other things, the Fifth Circuit concluded Texas would be likely to show the federal government had waived its sovereign immunity under 5 U.S.C. Section 702.

All the Supreme Court did (in this order) is eliminate this injunction -- likely because it concluded that the federal government is likely to prevail on sovereign immunity grounds. It did not rule on -- indeed, it was not called to rule upon -- the lawfulness of anything Texas is doing. Nothing in what the Supreme Court did told Texas to take or refrain from any action.

But don't just take my word for it. Here is what Professor Steve Vladeck (no fan of the Abbott administration) wrote in his "One First" substack newsletter:

perhaps the most important thing to say about the order is how little it actually resolved (someone really ought to write a book about why this is a bad thing): By vacating the Fifth Circuit's injunction, the Court effectively protected the federal government from contempt sanctions if it continues to remove the razor wire that Texas has placed along the border—and nothing more. Thus, nothing Texas did or said later in the week was "defying" the Court's ruling; much like President Jefferson and Marbury v. Madison, there was no real way Abbott could defy such a modest ruling because it wasn't directed at Texas in the first place. Instead, as explained in more detail below, the real legal disputes between Texas and the federal government at the border remain very much open and unsettled (and are likely to only escalate further, given the politics of the moment).

As Vladeck notes, there are other pending cases that challenge the lawfulness of actions Texas has taken that conflict with the Biden Administration's immigration policy enforcement choices. One of these cases challenges a new immigration law in Texas that looks highly suspect under Arizona v. United States, a 5-4 decision from 2012 in which the Court concluded that many state actions to enforce federal immigration laws are preempted. If courts rule against Texas in those cases--and I suspect they might--and Texas does not stand down, then it will be appropriate to call out the Lone Star state for defying the Supreme Court. But that is not what has happened yet, and it is irresponsible for journalists and others who should know better to say so.

Governor Abbott may be reckless and cavalier, particularly with his rhetoric, but he's no Judge Aiken (at least not yet).

From today's nonprecedential decision in John Doe P v. Zink:

After the trial court allowed the plaintiffs to litigate in pseudonym, it directed them to file a sealed document containing their actual names (Disclosure Document)…. We hold that the record does not support the trial court's finding that continued sealing was justified by compelling privacy or safety concerns that outweighed the public interest in access to court records….

In 2014, Zink sent a Public Records Act (PRA) request to Thurston County seeking various sex offender records, including registration records, special sex offender sentencing alternative (SSOSA) evaluations, and special sex offender disposition alternative (SSODA) evaluations. John Doe P, John Doe Q, John Doe R, and John Doe S (collectively Does) sued to enjoin the county from releasing the records. John Does P, Q, and S are level I sex offenders {those classified as the least likely to reoffend} who alleged they complied with registration requirements. John Doe R alleged he was convicted of a sex offense in juvenile court, had completed treatment, and had been relieved of the duty to register. The Does alleged that releasing the records Zink requested would cause irreparable harm because they would reveal the identity of sex offenders, like themselves, who were not statutorily required to be listed on the state's publicly available website.

Zink eventually largely prevailed on the substantive Public Records Act claims, after several different decisions of appellate courts and the state supreme court (including John Doe A and John Doe P II). And in this decision, she also prevailed in her argument that the documents in which Does identified themselves to the court needed to be made public:

Free Speech Right of Access

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So far in 2024, four federal circuit court judges have announced their intention to take senior status upon the confirmation of their successor, including (most recently) Judge Jane Stranch of the U.S. Court of Appeals for the Sixth Circuit. The others are Judges Charles Wilson (11th), Ilana Rovner (7th), and James Wynn (4th).

Including Judge Stranch, whose intentions were just reported today, this means there are ten current and pending vacancies on the federal circuit courts of appeals. Four of these seats have pending nominees.

Ten appellate seats to fill in the final year of a presidential term is a tall order, but I suspect Senate Democrats can get it done if they are willing to devote the floor time to it. In the absence of significant legislation, there will be political pressure to move on appellate judges.

Will there be even more vacancies to fill? I doubt it. There are twelve circuit court judges who are eligible for senior status and were appointed by Democratic Presidents, but who have not taken announced their intention to leave active status. Given that this is an election year, if they do not announce soon, it is reasonable to assume they will not be going senior during this presidential term. Even without blue slips for appellate nominees, it can be difficult to get folks through in an election year, particularly if nominees cannot be named before the spring.

For those keeping track, here are the circuit court nominees appointed by Democratic presidents who are eligible to take senior status, but who have not yet taken that step. Also included in this tabulation are the number of current or pending vacancies on each court.

First Circuit: (none) - 2 current/pending vacancies
Second Circuit: (none)
Third Circuit: (none) - 1 current/pending vacancy
Fourth Circuit: Gregory, King - 2 current/pending vacancies
Fifth Circuit: Graves, Stewart
Sixth Circuit: Clay, Moore - 2 current pending vacancies
Seventh Circuit: (none) - 2 current/pending vacancies
Eighth Circuit: (none)
Ninth Circuit: Gould, Rawlinson, Wardlaw
Tenth Circuit: Matheson
Eleventh Circuit: (none) - 1 current/pending vacancy
D.C. Circuit: (none)
Federal Circuit: Dyk, Reyna

Also, for the record, there are some two dozen circuit court judges in active service who were appointed by Republican presidents and are currently eligible for senior status.

The Department of Justice is not acquiescing to Judge Ann Aiken's efforts to keep Juliana v. U.S., the so-called "kids climate case," on life support. In a new filing the Department has asked Judge Aiken for a stay of the litigation so that the Department may file a writ of mandamus with the U.S. Court of Appeals for the Ninth Circuit seeking to have the case dismissed or, in the alternative, to allow interlocutory review.

As I noted here, Judge Aiken denied the federal government's motion to dismiss in December. This ruling was bad enough. What was worse--indeed, astounding--was her denial of the federal government's request that she certify the case for interlocutory review and failure to provide any explanation (let alone justification) for the denial. This was as reckless an act of judicial defiance as we have seen from any district court in the past three years.

From the DOJ filing:

The Court should stay proceedings in this case pending Defendants' forthcoming petition for a writ of mandamus. The Ninth Circuit ordered this Court to dismiss this case: "[W]e reverse the certified orders of the district court and remand with instructions to dismiss for lack of Article III standing." Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020). The Ninth Circuit's opinion in this case forecloses the theory that a declaratory judgment, standing alone, can redress Plaintiffs' alleged injuries, as required to show Article III standing. Id. at 1170. The Court's December 29, 2023, Order therefore violates the rule of mandate. . . . And even if the Court's order does not violate the mandate, the Supreme Court's observation still pertains: "the justiciability of [these Plaintiffs'] claims presents substantial grounds for difference of opinion." July 30, 2018, Supreme Court Order, ECF No. 330-1.

Because this Court denied Defendants' motion to certify its orders for interlocutory appeal, the government will seek a writ of mandamus from the Ninth Circuit to enforce its mandate and direct the Court to dismiss this case in its entirety. If granted, the government's petition will end this case, and any public resources spent on further litigation while the petition is pending would be wasted. The government therefore respectfully requests the Court to enter a stay of all proceedings in this Court pending resolution of the mandamus petition, as the Ninth Circuit did when considering the government's prior mandamus petition in this case.

The question now is how Judge Aiken will respond. From the start of this litigation she has shown herself quite sympathetic to the plaintiffs' cause, embracing their extravagant legal theories and resisting the federal government's procedural defenses. Now, however, she is directly contravening controlling legal authority about this very case.

According to the docket, the plaintiffs will be responding to the federal government's motion this week. Then Judge Aiken faces a choice: Grant the stay and allow the Ninth Circuit to consider the writ of mandamus, or refuse and force the Justice Department to proceed on an emergency basis.

As has been clear for some time, the question is not so much whether this litigation will end, but how it ends, and whether Judge Aiken's shenanigans produce rulings that hamper other climate change litigation.

* * *

For those interested, here are my prior posts on the Juliana litigation:

"Is Kids Climate Case Coming to an End?" Nov. 26, 2018.
"Ninth Circuit Dismisses Kids Climate Case for Lack of Standing (Updated)," Jan. 17, 2020.
"Kids Climate Plaintiffs to Seek Rehearing En Banc," Jan. 20, 2020.
"Ninth Circuit Denies Petition for En Banc Rehearing in Kids Climate Case," Feb. 10, 2021.
"Will the Justice Department Settle a Case the Ninth Circuit Already Dismissed?" May 26, 2021.
"States Seek to Intervene to Prevent Settlement in Kids Climate Case Ninth Circuit Already Ordered Dismissed," June 9, 2021.
"Blue States File Brief Encouraging District Court to Consider Juliana Settlement," July 7, 2021.
"Juliana Plaintiffs Opt Against Filing Cert Petition in Kids Climate Case," July 13, 2021.
"District Court Judge Revives Kids Climate Case," June 1, 2023.
"The Next Kids Climate Case: Genesis B. v. EPA," Dec. 15, 2023.
"Federal Court Again Refuses to Dismiss Juliana Climate Case," Jan. 2, 2024.

Okay, maybe past Cybertoonz have been a little hard on the FTC in past issues, hinting that it has paid no attention to the national security concerns around personal data. In light of the Commission's recent ruling in the X-Mode case, it's become clear that the FTC is in fact focusing on how personal data is used to protect national security. So to give the Commission equal time on the issue, we've turned Cybertoonz over to Chair Lina Khan to express its views.

From his Slate column today:

There are many ways that Trump could win in the Supreme Court. For example, the court could accept the First Amendment defense Trump has offered. Or it could agree with Trump that states can only consider disqualifying candidates under Section 3 if Congress passes a statute authorizing it. Or it could agree that Trump did not have an adequate chance to defend himself in the state court. Or it could hold that the evidence was not sufficient to show that he actually "engaged in insurrection." Or it could resuscitate an extreme version of the "independent state legislature" theory that Colorado law did not authorize Colorado courts to remove Trump from the ballot for violating Section 3. Winning on some of these issues would mean not only that Trump would be back on the ballot in Colorado, but potentially throughout the country.

What's most interesting about Trump's brief, though, is what it leads with—and what it leaves out, telling us a lot about where Trump thinks he has the best shot at the Supreme Court and the strength of his arguments. Trump leads with the hypertechnical argument accepted by the trial court (but rejected by Colorado's Supreme Court) that Trump is not an "officer of the United States" for purposes of Section 3. Trump devotes about three times as much space to this argument compared to any of his other individual arguments. [To be precise, the argument takes up 12½ pages, and the two longest other arguments each take up a bit more than 5 pages each. -EV]

Briefs are typically written to put the strongest argument first. Why would Trump think the officer argument is the strongest? It seems weak: As Trump's challengers argue in the Supreme Court: "It would defy common sense to hold that Section 3 disqualifies every oath-breaking insurrectionist officer (down to postmaster or county sheriff) except the most powerful one—a former Commander-in-Chief." This is especially true given the historical context of the amendment's passage. As conservative scholar Sam Bray recently wrote over at the Volokh Conspiracy:

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