1/4/2012: President Obama makes three appointments to the NLRB. The Supreme Court would find these appointments unconstitutional in NLRB v. Noel Canning.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
My Forthcoming Article on "Empowering Hispanics to Vote With Their Feet"
It's part of the annual Frankel Lecture symposium in the Houston Law Review.
My forthcoming symposium article, "Empowering Hispanics to Vote With Their Feet" is now available on SSRN. It is part of the University of Houston's annual Frankel Lecture symposium, which this year focuses on the role of Hispanics in our democratic system.
My contribution applies my general ideas on democracy and foot voting to the situation of America's largest minority group. Here is the abstract:
This symposium contribution outlines the significance of foot voting for America's Hispanic population and highlights ways in which we can better empower them to "vote with their feet." People vote with their feet when they make individually decisive choices about the government policies they wish to live under, as opposed to ballot box voting, where each voter usually has an only an infinitesimally small chance of determining electoral outcomes or otherwise affecting policy. There are three major foot voting mechanisms: through international migration, by moving between jurisdictions in a federal system, and by making choices in the private sector.
Part II summarizes the advantages of foot voting over conventional ballot box voting as a mechanism of political choice. Foot voters have more meaningful opportunities to make decisive choices with a real impact on their lives, and better incentives to become well-informed. Part III outlines ways in which Hispanics often benefit from foot voting opportunities even more than most other groups in American society. This applies to both international migration and domestic foot voting. Part IV describes ways in which we can enhance both international and domestic foot voting opportunities for Hispanics. Much can be accomplished by increasing access to legal migration, legalizing the status of current undocumented migrants within the United States, and breaking down barriers to domestic interjurisdictional foot voting.
Expanding Hispanic foot voting is not merely a benefit for this group alone. Empowering them to "move to opportunity" also benefits other groups, including native-born Americans of all races. The liberty and prosperity of America's largest minority group is of obvious significance to the nation as a whole.
The piece also includes a brief explanation of why I use "Hispanic" instead of the more academically fashionable "Latinx" (a term rejected by most actual members of the group in question).
The principal Frankel Lecture was that of Prof. Rachel Moran (Texas A&M), entitled "The Perennial Eclipse: Race, Immigration, and How Latinx Count in American Politics." There is also a commentary by Prof. Joseph Fishkin (UCLA). I will post links to them when they become available online.
En Banc Fifth Circuit Rejects FDA's Vaping Regulation "Surprise Switcheroo"
Another significant court loss for the Food & Drug Administration's arbitrary approach to regulating vaping products.
Today, the U.S. Court of Appeals for the Fifth Circuit issued its long-awaited en banc decision in Wages and White Lion Investments, L.L.C. v. Food & Drug Administration, in which it considered a challenge to the FDA's denial of vaping product applications. By a vote of 10-6, the court handed the FDA a substantial loss, and deepened the circuit split over the FDA's handling of vaping product applications.
This is the Fifth Circuit's third Wages & White Lion opinion. A panel of the court had initially stayed the FDA's enforcement of its prohibition on the sale of unapproved vaping products (decrying the agency's "surprise switcheroo"), but a separate panel reversed course, upholding the FDA. Now, sitting en banc, the Fifth Circuit has again ruled against the FDA, taking the agency to task for its arbitrary treatment of Wages & White Lion's product applications and, by implication, those submitted by dozens of other manufacturers as well.
Judge Oldham wrote for the Court. He was joined by Chief Judge Richman and Judges Jones, Smith, Elrod, Willett, Ho, Duncan, Engelhardt, and Wilson. Judge Haynes wrote the principal dissent, joined by Judges Stewart, Southwick, Higginson, and Douglas. Judge Graves also dissented separately.
Judge Oldham's opinion begins:
Over several years, the Food and Drug Administration ("FDA") sent manufacturers of flavored e-cigarette products on a wild goose chase.
First, the agency gave manufacturers detailed instructions for what information federal regulators needed to approve e-cigarette products. Just as importantly, FDA gave manufacturers specific instructions on what regulators did not need. The agency said manufacturers' marketing plans would be "critical" to the success of their applications. And the agency promulgated hundreds of pages of guidance documents, hosted public meetings, and posted formal presentations to its website—all with the (false) promise that a flavored-product manufacturer could, at least in theory, satisfy FDA's instructions. The regulated manufacturers dutifully spent untold millions conforming their behavior and their applications to FDA's say-so.
Then, months after receiving hundreds of thousands of applications predicated on its instructions, FDA turned around, pretended it never gave anyone any instructions about anything, imposed new testing requirements without any notice, and denied all one million flavored e-cigarette applications for failing to predict the agency's volte face. Worse, after telling manufacturers that their marketing plans were "critical" to their applications, FDA candidly admitted that it did not read a single word of the one million plans. Then FDA denied that its voluminous guidance documents and years-long instructional processes meant anything. Why? Because, the agency said, it always reserved the implied power to ignore every instruction it ever gave and to require the very studies it said could be omitted, along with the secret power to not even read the marketing plans it previously said were "critical." It was the regulatory equivalent of Romeo sending Mercutio on a wild goose chase—and then admitting there never was a goose while denying he even suggested the chase. Cf. William Shakespeare, Romeo and Juliet act 2, sc. 4.
FDA justifies its behavior with two principal arguments. First, FDA argues that its years' worth of regulatory guidance was not worth the paper it was printed on because it was hedged with cautious qualifiers and never guaranteed that any particular submission would be granted. Second, and most disturbingly, FDA argues that its capriciousness should be forgiven as harmless because the agency promises to deny petitioners' applications even if we remand to make the agency follow the law.
Today we reject both propositions. As the Supreme Court recently reminded us: "If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them." Niz-Chavez v. Garland, 593 U.S. 155, 172 (2021). No principle is more important when considering how the unelected administrators of the Fourth Branch of Government treat the American people. And FDA's regulatory switcheroos in this case bear no resemblance to square corners. As for the agency's harmless-error argument, the Supreme Court recently, unanimously, and summarily rejected it. Calcutt v. FDIC, 598 U.S. 623 (2023) (per curiam). We do the same here with the expectation that FDA will give petitioners the benefit of a full and fair regulatory proceeding on remand, notwithstanding its prior promises to reject their applications no matter what.
While the majority expected the FDA to comply with administrative law norms of fair notice and non-arbitrary treatment, the dissenters adopted a more permissive posture, concluding that vaping product manufacturers had failed to demonstrate that their products satisfied the FDA's regulatory standards.
This view may have commanded majorities on most circuit courts to consider the quesiton, but it did not command a majority of the Fifth Circuit. Wrote Judge Oldham:
FDA's counterargument boils down to this: Some other circuits agree with the agency. It is true that five circuits have sided with FDA, while the Eleventh Circuit and ours have found the agency acted arbitrarily and capriciously. But law is not a nose-counting exercise. Compare, e.g., Cochran v. SEC, 20 F.4th 194, 237 (5th Cir. 2021) (en banc) (Costa, J., dissenting) ("Five circuits have considered the question. By a count of 15-0, every judge deciding those cases has [found no jurisdiction.]"), with Axon Enter., Inc. v. FTC, 598 U.S. 175, 195–96 (2023) (unanimously finding jurisdiction in Cochran). Rather, the relevant question is whether our sister circuits have spotted a defect in petitioners' arguments that we have missed. With deepest respect for our colleagues who have seen this case the other way, we think not.
The question now is whether the Justice Department will seek Supreme Court review. Thus far, the Court has shown little interest in taking a vaping case, at least when cert petitions have been filed by manufacturers of denied products. Now that there is a clearer circuit split, and the FDA may be seeking review, perhaps the Court will change its mind.
"Purported Robberies Were Staged" to Support "Fraudulent Visa Applications"
A system for encouraging cooperation by crime victims was allegedly turned into a means of producing visa fraud.
From an FBI Affidavit in U.S. v. Patel:
In or around June 2023, the Boston [Violent Crimes Task Force] became aware of a series of armed robberies of commercial stores … in which all three stores were robbed at gunpoint by an individual. Based on video surveillance, witness statements, and patterns of behavior observed across the three robberies, agents believed that the robberies were connected, and that the perpetrator of each of the three robberies was likely the same person (the "Suspect").
As the FBI learned more about the robberies and learned of other robberies apparently involving the same Suspect, as well as other individuals believed to be involved in the planning and execution of the robberies, facts emerged that suggested that the SUBJECT PERSONS were involved in conduct other than purely commercial robberies. For example, toll records analysis showed that some purported victims of the supposed robberies were in contact with PATEL before the robberies. Also, investigation revealed that one of the individuals tasked with committing the robberies had traveled via airplane to commit a robbery in circumstances where the money likely to be obtained during the robbery could reasonably be expected to have been less than the cost of the travel to commit the robbery.
The FBI also learned about immigration-related activity of several store employees following their purported victimization during the robberies, as outlined below. As a result of these unusual factors, during the course of the investigation, the FBI began to suspect that the SUBJECT PERSONS and co-conspirators, both known and unknown, were engaged in a visa fraud scheme, rather than a series of Hobbs Act robberies.
As explained more fully below, there is now probable cause to believe that the purported robberies were staged for the purpose of supporting fraudulent visa applications….
Leigh Bardugo, "The Ninth House"
I read this and much enjoyed it some years ago; it's an urban fantasy set at Yale, and I expect that people with some Yale or New Haven experience would enjoy it even more. Indeed, I recommended it to Will Baude, who went to Yale Law, and he just let me know that he "loved it almost as much as Lev Grossman's The Magicians." That's my reaction, too: I think Grossman's series is exceptionally good, and somewhat better than Ninth House and its sequel, Hell Bent, but I liked both very much.
If you've read the book, please let us know your thoughts in the comments.
Heritage 2024 Judicial Clerkship Training Academy
The application deadline for incoming law clerks is January 22, 2024.
The Heritage Foundation is now accepting applications for the 2024 Judicial Clerkship Training Academy. If you have been hired as a law clerk with a start date in 2024, you should apply.
The Academy will provide you with many of the tools to maximize your clerkship. I will be leading an interactive seminar on textualism and the canons of statutory interpretation. Tom Lee, formerly of the Utah Supreme Court, and James Heilpern will lead a session on corpus linguistics and originalism. Ross Guberman will teach a class on writing bench memos, opinions, and dissents. Plus, you can hear from federal judges and former law clerks about their experiences.
The deadline to apply is January 22, so move quickly.
Today in Supreme Court History: January 3, 1911
1/3/1911: Justice Willis Van Devanter takes oath.
Defending Clarence Thomas from My Good Friend Steve Lubet
The best and most incorruptible Supreme Court Justice in U.S. History
My good friend from the Northwestern Pritzker School of Law faculty Steve Lubet has very politely, but firmly taken issue with my recent post on this Blog about Justice Clarence Thomas. Steve does "not question [my] assessment of Thomas's exceptional intellect." But he does question my assertion that Justice Thomas is the best of the 116 justices to have sat on the Supreme Court. I want to begin by defending that claim before turning to the ethics issues that Steve is troubled by.
First, I am not alone in thinking that Clarence Thomas is the best of the 116 Justices to ever serve on the Supreme Court. I am one of the three co-founders and the 40 year Co-Chairman of the Federalist Society's Board of Directors. The Society has 70,000 members nationwide, chapters at every law school in the country, lawyers chapters in every major city in the country, and a substantial presence on the federal judiciary. After forty years of attending thousands of Federalist Society gatherings, I have a pretty good sense of what Federalist Society members think. They adored the late Justice Antonin Scalia, but after Clarence Thomas had been on the Supreme Court for about ten years -- a frequent parlor game got started when Federalists got together. They would ask themselves who was right in those cases in which Justices Scalia and Thomas disagreed. The nearly unanimous answer was that Justice Thomas was right.
While Justice Scalia travelled all over the world and the United States giving speeches praising originalism and extolling its virtues, Justice Thomas worked in his office writing very consistent and powerful originalist opinions that started driving the Supreme Court in his direction. Some people said sadly as a joke that Justice Thomas had the courage of Justice Scalia's opinions. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1988-1989) (arguing for faint hearted originalism that did not overturn major precedents). All too often, as in Gonzales v. Raich, 545 U.S. 1 (2005) a case about whether the federal government had power under the Commerce and Necessary and Proper Clauses, to prosecute a cancer patient for growing three medical marijuana plants in her kitchen, Justice Scalia was in the liberal majority for national power and Justice Thomas was in dissent along with Chief Justice Rehnquist and Justice Sandra Day O'Connor.
These episodes added up, and Justice Scalia served only twenty-nine years on the Supreme Court, while Justice Thomas is still going strong in his thirty-third year on the Supreme Court. I am not alone in thinking that Justice Thomas is the best of the 116 justices to have served on the Supreme Court today. Most Federalist Society members who I talk to think the same way. It is striking and a wonderful thing for the country that an overwhelmingly white group of conservative and libertarian lawyers would look up to a Black man as their personal hero. Many of the six Republican appointees on the current Supreme Court are beloved by the Federalist Society membership. The three Trump appointees fall in that category, but they have not been on the Court for long enough to form a reputation. Federalist Society members greatly admire Justice Alito, but they regret that he is not really an originalist and that he follows precedent over the text of the Constitution. Similar complaints are made about Chief Justice Roberts. Chief Justice Roberts is also seen as being too political and too concerned with public opinion about the Court. In my view, this is a form of corruption.
Pro Se Plaintiff Wins $80K in Libel Lawsuit Against Neighbors
From Poimboeuf v. Merritt, decided today by the N.C. Court of Appeals (No. 23-229), in an opinion by Judge John Tyson, joined by Judges Zachary and Flood; some quick and likely not fully reliable Googling suggests that Poimboeuf wasn't trained as a lawyer, though Riselvato had been a paralegal:
Kevin Poimboeuf's … long-term girlfriend, Shelley Welch Riselvato …, owns Wildflower Preschool, a farm and nature preschool …. Wildflower Preschool bordered and shared an access easement with the adjacent Merritt's Gravel Pit, Inc. …. Merritt's Gravel Pit is owned and operated by Defendant Tony [Merritt]. Defendant Ilene [Merritt] is not an employee on the payroll of Merritt's Gravel Pit, but she often helps with the business ….
Katelyn Merritt …, Tony's and Ilene's daughter, is the Vice President of Merritt's Gravel Pit. TIK, LLC … owns the land from where Merritt's Gravel Pit operates. Tony, Ilene, and Katelyn Merritt are each one-third member-owners of TIK.
Riselvato and the Merritts have endured a contentious relationship since Riselvato first visited the property adjacent to Merritt's Gravel Pitt. Shortly after the property was listed for sale, Riselvato's realtor instructed her to review the property. While there, Tony and Katelyn confronted Riselvato, accused her of trespassing, told her the property was not for sale, and reported her to the Orange County Sheriff's Office. Tony's mother owned the property Riselvato eventually purchased, and selling the property was a source of contention amongst members of the Merritt family.
Once Riselvato and Poimboeuf began constructing Wildflower Preschool, Riselvato's and Poimboeuf's relationship with the Merritt family quickly deteriorated. Tony accused Poimboeuf of exposing his penis in the presence of children and reported Poimboeuf to law enforcement officers. Although the Merritts filed a complaint at the magistrate's office to bring criminal charges against Poimboeuf, those charges were later dismissed.
My New National Affairs Article on "The Case Against Nationalism"
Coauthored with Cato Institute scholar Alex Nowrasteh.
National Affairs has published my article "The Case Against Nationalism," co-authored with Cato Institute scholar Alex Nowrasteh. Alex is also the coauthor (with economist Benjamin Powell), of the excellent book Wretched Refuse? The Political Economy of Immigration and Institutions (Cambridge Univ. Press).
Here is an excerpt from the Introduction:
Nationalism has become a dominant ideology on the American political right and has gained ground in many European countries over the last decade. This has happened without sufficient attention to the dangers inherent in nationalism — dangers evident in theory and in practice in this latest iteration of nationalism as well as prior ones.
Nationalism is particularly dangerous in a diverse nation like the United States, where it is likely to exacerbate conflict. The ideology is virtually impossible to separate from harmful ethnic and racial discrimination of a kind conservatives would readily condemn in other contexts. Like socialism, with which it has important similarities, nationalism encourages harmful government control over the economy. Nationalism also poses a threat to democratic institutions. Finally, nationalist ideology is at odds with America's foundational principles, which are based on universal natural rights, not ethnic particularism.
In crucial ways, nationalism is just socialism with different flags and more ethnic chauvinism. All Americans, but especially traditional conservatives, classical liberals, and libertarians, should recognize nationalism's dangers and recommit instead to the core principles of our founding.
We go over each of these points in greater detail in the body of the article.
From the Conclusion:
Nationalism's failures in the 20th century, from starting two world wars to genocide to jingoistic economic policies that have immiserated millions, rank it as a horrific failed ideology, second only to communism. Conservatives, classical liberals, and libertarians rightly mock leftists who claim that "real communism hasn't been tried" or that "the Soviet Union wasn't really communist" when confronted with the disastrous effects of their policies. Those who make similar excuses for nationalism are on no firmer ground.
Firearms Law Works-in-Progress Conference 2024
DATE: May 23-24, 2024
LOCATION: Durham, NC
ABSTRACTS DUE: February 9, 2024
The Duke Center for Firearms Law and the University of Wyoming College of Law Firearms Research Center invite applications to participate in the sixth annual Firearms Law Works-in-Progress Conference. The conference will be held at Duke University School of Law in Durham, North Carolina on May 23 & 24, 2024. We ask all those interested in presenting a paper at the conference to submit an abstract by February 9, 2024.
At the Firearms WIP Conference, scholars and practitioners present and discuss works-in-progress related to firearms law broadly defined, including Second Amendment history and doctrine, federal and state gun regulation, and the intersection between firearms law and other areas of law. The Firearms WIP Conference is the only legal works-in-progress event specifically focused on firearms law. Summaries of past conferences, including paper titles and attendees, are available here: 2019, 2020, 2021, 2022, and 2023.
Conference sessions are lively discussions among authors, discussants, and participants. Each accepted paper is assigned to a panel of three to four scholars with a moderator who will summarize the papers and then lead a discussion. Sessions run from Thursday afternoon through Friday afternoon. There will be a casual dinner and social event Thursday evening following the afternoon session. All conference participants are expected to read the papers in advance and to attend the entire conference.
We accept papers on a wide array of topics related to gun regulation, including from scholars who are new to the field and interested in exploring the interaction between firearms law and other disciplines. Although participation at the conference is by invitation only, we welcome paper proposals from scholars and practitioners all over the world. Please feel free to share this call for submissions widely.
Submission Details
- Titles and abstracts of papers should be submitted electronically to andrew.willinger@duke.edu no later than February 9, 2024. Abstracts should be no longer than one page, and should be submitted as a PDF file saved under the file name "[last name, first name] – [paper title]." Please use the subject line "WIP Paper Submission" in your email.
- Authors will be informed whether their paper has been accepted no later than March 8, 2024.
- Workshop versions of accepted papers will be due in early May, so that they can be circulated to moderators and other conference participants in advance of the conference.
We expect that participants' home institutions will cover travel expenses to the extent possible. However, the Duke CFL and Wyoming FRC are able to cover some costs of lodging and travel expenses for authors who would not otherwise be able to attend. This support is intended to encourage submissions from junior faculty, especially those who are new to the field.
Some background: The Firearms WIP Conference is modeled in part after Yale Law School's Freedom of Expression Scholars Conference (FESC). The Duke and Wyoming Centers are both committed to developing to developing the Second Amendment (and arms law in general) as a field of scholarly study. Although the scholars affiliated with Duke and Wyoming have their own viewpoints -- as expressed in their articles, amicus briefs, and other works -- both centers publish diverse viewpoints. To the best of my knowledge, they are the only university centers on arms law or policy that do so.
If your paper is accepted for the conference, potential commenters include Duke's Professors Joseph Blocher and Darrell A.H. Miller, Duke's Executive Director Andrew Willinger, Wyoming's Prof. George Mocsary, and Wyoming's Senior Fellows Ashley Hlebinsky and me. Whether the commenters agree or disagree with your perspectives, they will provide constructive suggestions to improve your paper.
Federal Court Again Refuses to Dismiss Juliana Climate Case
Judge Aiken's reckless defiance of legal rules is turning the "Kids Climate Case" into a zombie climate case.
On December 29, Judge Ann Aiken of the U.S. District Court for the District of Oregon took senior status, but she did not retire from the bench. On the very same day, Judge Aiken denied the federal government's motion to dismiss Juliana v. United States, the so-called "Kids Climate Case," and directed the parties to begin preparing for a trial. It is an astounding order that threatens to bring climate litigation back to the Supreme Court, and outcome few climate activists should want.
A bit of background. The Juliana litigation began in 2015, when a group of youth plaintiffs filed suit alleging, among other things, that the federal government's failure to control greenhouse gases violates their substantive due process rights to life, liberty, and property, including a right to a "stable climate system," violates their right to equal protection, and failed to uphold its "public trust" obligation to hold certain natural resources in trust for the people and for future generations.
As one would expect, the federal government sought to dismiss the case. Not only did the district court deny the motion to dismiss, it also denied the federal government's request to certify the decision for interlocutory review. Faced with the prospect of extensive discovery requests and a looking trial, the federal government sought a writ of mandamus and stay of the proceedings, first with the U.S. Court of Appeals for the Ninth Circuit, and eventually at One First Street.
While the Supreme Court did not grant the federal government's motions, it issued two orders -- one in July and one in November 2018 -- that made clear the justices believed Judge Aiken had misapplied the relevant rules (including that governing interlocutory review) and not-so-subtly directing the Ninth Circuit to get the district court in line. The Ninth Circuit issued a stay and Judge Aiken reconsidered her prior decision to deny interlocutory review, leading to the Ninth Circuit's decision in January 2020 to dismiss the case on standing grounds.
One might have thought the Ninth Circuit's decision would have put an end to the Juliana litigation. After all, the Ninth Circuit's mandate instructed the district court to dismiss the case, so that is all there was left to do after the plaintiffs had exhausted their opportunities for en banc review and certiorari. But Judge Aiken had other ideas, and instead ordered the parties to have a settlement conference and granted the plaintiffs an opportunity to amend their pleadings so as to keep the case alive.
As one would have predicted, the federal government again sought to have the case dismissed, arguing that the district court was required to do so given the Ninth Circuit's mandate, and that even were that mandate not binding the plaintiffs continue to lack standing and failed to state viable constitutional or other claims upon which relief could be granted. Once again, Judge Aiken refused to let the case die, denying the federal government's motion, save for dismissing the plaintiffs' equal protection and Ninth Amendment claims.
From Judge Aiken's opinion:
The parties do not disagree that the climate crisis threatens our ability to survive on planet Earth. This catastrophe is the great emergency of our time and compels urgent action. As this lawsuit demonstrates, young people—too young to vote and effect change through the political process—are exercising the institutional procedure available to plead with their government to change course. While facts remain to be proved, lawsuits like this highlight young people's despair with the drawn-out pace of the unhurried, inchmeal, bureaucratic response to our most dire emergency. Top elected officials have declared that the climate emergency spells out "code red for humanity." Burning fossil fuels changes the climate more than any other human activity. The government does not deny that it has promoted fossil fuel combustion through subsidies; tax exemptions; permits for fossil fuel development projects; leases on federal lands and offshore areas; permits for imports and exports; and permits for energy facilities. Despite many climate change suits around the country, in 2023, the United States witnessed record-breaking levels of oil and gas production. And recent calculations conservatively estimate that the United States provides the oil and gas industry $20,000,000,000.00 annually in an array of subsidies.
Defendants maintain that, because tackling the climate crisis is complex, and no single remedy may entirely redress plaintiffs' harms caused by climate change, the judiciary is constrained by the Constitution from offering any redress at all. . . . Defendants contend that the issue of climate change is political in its nature, and that redress of plaintiffs' alleged injuries must be sought from Congress. … That unnecessarily narrow view overlooks one clear and constitutional path to shielding future generations from impacts of the onslaught of environmental disaster: that it is the responsibility of the judiciary to declare the law that the government may not deprive the People of their Constitutional guarantee of the God-given right to life. U.S. CONST. art III; U.S. CONST. amend. V; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).
Plaintiffs' allegations are that collective resolve at every level and in every branch of government is critical to reducing fossil fuel emissions and vital to combating climate change. That curbing climate change requires an all-hands-on-deck approach does not oust the Court from its province or discharge it of its duty under the Constitution to say what the law is. Marbury 5 U.S. at 170. Combatting climate change may require all to act in accord, but that does not mean that the courts must "throw up [our] hands" in defeat. . . .
The legislative and executive branches of government wield constitutional powers entrusted to those branches by the People through the democratic process. … So too, as part of a coequal branch of government, the Court cannot shrink from its role to decide on the rights of the individuals duly presenting their case and controversy. Marbury, 5 U.S. at 170. . . .
Some may balk at the Court's approach as errant or unmeasured, but more likely than not, future generations may look back to this hour and say that the judiciary failed to measure up at all. In any case over which trial courts have jurisdiction, where the plaintiffs have stated a legal claim, it is the proper and peculiar province of the courts to impartially find facts, faithfully interpret and apply the law, and render reasoned judgment. Such is the case here.
Among other things, Judge Aiken declares the existence of a substantive due process right to a "climate system that can sustain human life."
Exercising "reasoned judgment," the Court finds that the right to a climate system that can sustain human life is fundamental to a free and ordered society.
Defendants contend plaintiffs are asserting a right to be free from pollution or climate change, and that courts have consistently rejected attempts to define such rights as fundamental. Defendants mischaracterize the right plaintiffs assert. Plaintiffs do not object to the government's role in producing any pollution or in causing any climate change; they assert the government has caused pollution and climate change on a catastrophic level, and that if the government's actions continue unchecked, they will permanently and irreversibly damage plaintiffs' property, their economic livelihood, their recreational opportunities, their health, and ultimately their (and their children's) ability to live.
In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, damage property, threaten human food sources, and dramatically alter the planets ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government's knowing decision to poison the air its citizens breathe or the water its citizens drink. . . .
We cannot vow to uphold the Constitution's protection of a God-given right to life, and at the same time, exercise "judicial restraint" by telling plaintiffs that "life" cannot possibly include the right to be free from knowing government destruction of their ability to breathe, to drink, or to live. "It cannot be presumed that any clause in the [C]onstitution is intended to be without effect." Marbury, 5 U.S. at 174. Plaintiffs have adequately alleged infringement of a fundamental right and defendants' motion to dismiss is denied on this issue.
The most startling part of Judge Aiken's decision is not the sweeping assertions of constitutional rights, but her refusal to certify the opinion for interlocutory review, without comment. This is striking because it was Judge Aiken's prior refusal to permit interlocutory review which ultimately prompted two separate Supreme Court orders indicating that she had misapplied the standard in 28 U.S.C. §1292 and the Ninth Circuit's ultimate stay.
The last time around, Judge Aiken deigned to explain her actions, offering both an explanation for her initial denial of interlocutory review and her subsequent reversal. This time, however, her opinion offers not a word in defense of her decision to deny the federal government's request, even though nothing has changed that would alter the application of §1292's standards to this case, and the Supreme Court's admonitions remain on point. There is simply no other way to describe this aspect of her opinion other than as outright judicial defiance (and illustrates how some "shadow docket" orders are more a measured response to misbehavior by lower court judges than a sign of High Court activism).
Judge Aiken's decision is not merely defiant, but reckless as well. The Department of Justice has little choice but to seek review of this decision, even if through a writ of mandamus, and if the U.S. Court of Appeals for the Ninth Circuit does not intervene, the question could reach the Supreme Court, where the justices are already considering whether to grant review of other climate litigation.
Those filing various nuisance and tort suits against energy companies have been working hard to keep their cases out of federal court (and with much success). Whereas the energy companies characterize the suits as unbounded efforts to dictate energy policy in state courts, the plaintiffs in those cases stress that they are simply pursuing state law claims in state courts, and that such questions are not worth the Supreme Court's review. Suits like Juliana (and the recently filed Genesis B case), threaten to disrupt the plaintiffs "business as usual" narrative and offer the justices good cause to step in to make sure climate litigation does not get out of hand.
Many climate activists are cheering Judge Aiken's latest ruling. But should her shenanigans lead to premature High Court review of pending climate claims, they may come to rue the day Judge Aiken refused to let the Juliana litigation stay dead and buried.
* * *
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.
In This House We Believe in Keeping People Safe
Inspired by a New Year's Eve family trip to the shooting range.
News Website Publisher Gets Harassment Restraining Order Against Insistent Seeker of Coverage
The trial court found that "Decker continued contacting Siewert after she had asked him to stop five times" and "Decker's intent was to impose his will on Siewert to make her write about certain issues and to cover those issues in the way that he wanted them covered."
From Siewert v. Decker, decided Thursday by the Wisconsin Court of Appeals (Judges Lisa Stark, Thomas Hruz, and Gregory Gill):
Siewert testified that she is the editor and publisher of Wausau Pilot and Review, a local news website, and she is also a broadcast specialist for Wisconsin Public Radio. Siewert explained that she had known Decker for five or six years, and during that time she had published some of his work on her website. She testified that "[t]hings started to get a little strange" with Decker in late October 2021, and in December he "started initiating some text messages with [her], wanting to get together." Despite Siewert telling Decker that she was busy, he continued to contact her repeatedly via text message.
In one instance, Decker texted Siewert when she was in the hospital following emergency surgery, and when she apprised him of her location, "he responded by asking if he could visit, kept on texting, asking me if I would take a bi-weekly column from him that he wanted to call 'Question Authority.' I responded by saying that I'm literally an hour out of surgery. He kept calling."
Decker continued calling and texting Siewert, and on December 27, 2021, she asked him to stop contacting her. Decker texted Siewert again on January 7, 2022, regarding an article that he wanted to write. Once again, Siewert asked Decker to stop contacting her, and she blocked his phone number. Decker then began emailing Siewert, sending her twenty-two emails after she asked him to stop contacting her. Siewert testified that she also asked Decker to stop contacting her multiple times via email.
"[Mother] Shall Not Post on Social Media About [Her Parental Rights Termination] Case"
A Florida appellate court just overturned the injunction on First Amendment grounds.
From Budlove v. Johnson, decided Friday by the Florida Court of Appeal (Judge J. Andrew Atkinson, joined by Judge Craig C. Villanti):
On January 15, 2021, the trial court issued a final judgment terminating Budlove's parental rights with regard to T.B., Budlove's biological child. Each of the appellees was involved in the dependency case that led to the termination….
[O]n August 17, 2021, the trial court found that Budlove had been posting
multiple videos and information on social media, including, but not limited to the following: unredacted police reports from the investigation; confidential information about the child [T.B.] and the child, M.B.; photos of the child, T.B.; details from mediation; and names of all parties, including judges, attorneys, CPIs, detectives, and the caregiver.
{M.B. is Budlove's ex-husband's niece and was previously in the care of Budlove and her ex-husband.} The trial court ordered Budlove to "remove all confidential information relating to [T.B.'s dependency case] from online or from any posting sites within twenty-four (24) hours of service of [the] order."
After learning that Budlove continued to post some things online related to the dependency case even after the August 17 order—although Budlove maintains that none of those posts violated the orders—the five appellees all filed petitions for injunctions against Budlove for stalking. At hearings on the petitions, the appellees claimed that Budlove was harassing and cyberstalking them and causing Budlove's followers on social media platforms to do the same. On April 8, 2022, the trial court announced that it was granting all five petitions for injunctions against Budlove for stalking.
The written order broadly prohibits Budlove from having any contact with the appellees. And "adding to the traditional language in the injunctions," the trial court ordered Budlove in open court to "not post online anything relating to [T.B.'s] dependency case." The trial court explained that "[t]his includes, but is not limited to, the names of parties related to the case, such as case managers, Assistant State Attorneys, caregivers, or other children in this case." The written order then stated the following: "[Budlove] shall not post on social media about case [redacted], includ[ing] but not limited to case managers, parties, and other minor children to [the] case. Anything already posted on social media about case #[redacted] shall be removed." …
Today in Supreme Court History: January 2, 1923
1/2/1923: Justice Pierce Butler takes oath.
Are Hispanics Following the Path of the Irish?
Economic policy commentator Noah Smith compiles evidence that the today's Hispanics are following a similar path to that of Irish-Americans in earlier eras of American history.
Hispanics are by far the largest American immigrant group of the last several decades, and also the focus of the most extensive nativist concerns. Immigration restrictionists contend that Hispanic immigrants increase crime, undermine American political institutions, and cannot or will not assimilate. In a recent post, prominent economic policy commentator Noah Smith compiles evidence that these complaints are largely misplaced, and that Hispanics are in fact following a trajectory similar to that of Irish-Americans in the late-nineteenth and early-twentieth centuries:
[T]he best historical analogy for Hispanic immigration to the U.S. is the great Irish immigration of the 1800s. The usual analogy we draw is to the Italians, but I think the Irish make a better model. First of all, Irish immigration, like immigration from Mexico and Central America — but unlike immigration from Italy — was very drawn-out over a long period of time….
Like Hispanics, Irish migrants were mostly working-class folks who came for mainly economic reasons — pressures from poverty back in Ireland, plus the great dream of making it in America. And like Hispanics, they provoked a sustained and ferocious pushback from nativists….
The cartoon at the top of this post is from 1871 [note: I have reproduced the same cartoon at the start of this post], and features a huge number of negative stereotypes — the Irish as terrorists, as drunkards, as criminals, as seeking to dominate American culture….
You can see these anxieties paralleled in modern conservative worries about Hispanic immigration. Conservatives worry that terrorists are coming up through the southern border, that traditional American culture will be destroyed by immigrant culture, or even that the U.S. will have a civil war along racial lines.
Economic concerns are also very similar…. Worries that poor Irish immigrants would swamp local welfare systems — similar to worries about Hispanics overloading the welfare state in the 1990s and beyond — resulted in a large number of restrictive anti-immigration measures at the state level…..
Today's fears of supposedly violent and unassimilable Hispanics are remarkably similar to the nineteenth century stereotype of brutish, un-American Irishmen.
In the rest of the article, Smith compiles evidence that the concerns about Hispanics are largely false: they are in fact rapidly assimilating, quickly increasing their wealth and income, and have significantly lower crime rates than native-born Americans (a point that applies even to undocumented immigrants). Most of this evidence is well-known to students of immigration policy. But Smith does a valuable service in compiling it in one relatively short and easily accessible piece.
I have previously written about how once-widespread hostility towards Irish-Americans gradually faded away to the point where the difference between the Irish and other white Americans no longer has much political or social significance. For example, most Americans barely even notice that Joe Biden is only the second Irish Catholic president, and hardly anyone worries that he's trying to advance Irish interests at the expense of WASPs, or that he's following the dictates of the Vatican. As Smith explains, the distinction between whites and Hispanics may well be gradually moving in the same direction.
I would, however, note a few relevant caveats to Smith's thesis. First, it is not entirely true that Irish and Hispanic immigrants "were mostly working-class folks who came for mainly economic reasons." In reality, many Hispanic immigrants were and are refugees from oppressive socialist regimes in Cuba, Nicaragua, and (most recently) Venezuela. Some others have fled repression at the hands of right-wing dictatorships. For their part, the many Irish migrants were fleeing not just poverty, but also repression at the hands of the British. This experience with repression in their countries of origin likely strengthens the migrants' attachment to American institutions, which, despite various flaws, offer them greater freedom and tolerance than those they fled.
A second caveat is that Hispanic migrants are a much more diverse lot than the Irish were. They come from a variety of different nations and ethnic groups. This makes generalizations about them more difficult. Cubans, Mexicans, Salvadorans, Brazilians, and others all have somewhat different backgrounds and experiences, though there are some commonalities, as well. Indeed, as my George Mason University colleague David Bernstein shows in a recent book, "Hispanic" is actually a largely artificial category created not by the migrants themselves, but by US government bureaucrats.
Finally, while Irish immigrants arrived in an era when there were few restrictions on European immigration, many Hispanic migrants are undocumented. Today, there are an estimated 7 million or more undocumented Hispanic immigrants in the US, which accounts for some one-third of all foreign-born Hispanics, and over 70% of the total undocumented immigrant population.
For obvious reasons, lack of legal status reduces migrants' incomes and educational opportunities, and impedes assimilation. The existence of this anchor makes Hispanics' progress look even more impressive than it would be otherwise. But, unless immigration policy changes, it is likely to continue to slow down the assimilation process highlighted by Smith.
The obvious solution to this problem is simply to grant legal status to the undocumented, or at least the vast majority of them. Previous amnesties have increased income and assimilation, and a new one would likely have similar effects (thereby also boosting the US economy in the process). But that may not be politically feasible for some time to come.
UPDATE: In my post, I list Brazilians as one of the "Hispanic" groups. But the federal government does not classify them as such, because the official definition of Hispanic is limited to people of "Spanish culture or origin." However, many Brazilians do describe themselves as "Hispanic" or "Latino" in surveys, and they are often colloquially described as "Hispanic" by others. Ultimately, little in my analysis turns on whether Brazilians are properly considered "Hispanic" or not. Even if we exclude them, the Hispanic category is still remarkably diverse, including people with origins in a variety of different countries.
Today in Supreme Court History: January 1, 1863
1/1/1863: Emancipation Proclamation issued.
