The Volokh Conspiracy

Recently, Texas installed a 1,000-foot-long floating buoy system in the Rio Grande. The United States filed suit against Texas. (For those playing at home, the suit was field in Austin, where the Capitol sits, and not in the Rio Grande valley, where the case arose.) DOJ argues that Texas has violated the Rivers and Harbors Act, which prohibits placing certain structures in navigable waters. Texas has now filed its reply. Texas makes several arguments based on the statute:

The segment of the river where the buoy system has been deployed is not navigable; even if it were, the buoy system does not decrease the navigable capacity of the river; and the buoy system is not a boom or other structure prohibited under the Act.

However, Texas also makes an alternative argument based on constitutional avoidance:

Because Texas has a federal constitutional right to defend itself against invasion from even non-state actors, the Court should construe the Rivers and Harbors Act narrowly to avoid a collision between that constitutional right and the federal statute.

The constitutional provision at play here is somewhat obscure. Article I, § 10, cl. 3 provides, "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." The Invasion Clause, on its face, seems to give the states additional authorities when they are "actually invaded." Governor Abbott argues that he, as the Commander in Chief of the state, has the power to determine whether there is an invasion. And Abbott has made such a declaration.

The brief provides some history about the Invasion Clause:

Texas's sovereign power is not limited to repelling invasions by state actors. By its terms, Article I, § 10, Clause 3 applies to all types of invasions, including invasions from non-state or quasi-state actors, like the cartels. Indeed, throughout American history, States have had to use military force to respond to hostile non-state actors. For example, James Madison explained at the Virginia Ratifying Convention how state militia were customarily utilized: "There were a number of smugglers, who were too formidable for the civil power to overcome. The military quelled the sailors, who otherwise would have perpetrated their intentions." 11 James Madison, Debate From Virginia Ratifying Convention (June 16, 1788). And in 1792, Congress exercised its power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," U.S. Const. art. I, § 8, by authorizing the President to call forth the militia "whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe." An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions, 1 Stat. 264, 2d Cong., Sess. I, Ch. 28 (1792) (emphasis added). Congress reenacted the same provision in 1795. See An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions; and to repeal the Act now in force for those purposes, 1 Stat. 424, 3d Cong., Sess. II, Ch. 36 (1795) ("imminent danger of invasion from any foreign nation or Indian tribe"). Any notion that "invasion" somehow hinges on the difference between state actors and non-state actors would seem wholly artificial to the Framers: After all, the Constitution gives Congress power to "grant Letters of Marque and Reprisal" authorizing private actors to cross international borders to commit hostile acts. U.S. Const. art. I, § 8, cl. 11.

The brief also cites several founding-era dictionaries to define the word "invade" and "invasion."

Texas argues that the court should avoid any reading of the Rivers and Harbors Act that would run afoul of the Invasion Clause.

In view of this constitutional authority, this Court should construe the Rivers and Harbors Act narrowly to avoid the constitutional questions presented by the interaction between the State's constitutional authority to repel invasions and the Rivers and Harbors Act. See United States v. Hansen, 143 S. Ct. 1932, 1946 & n.3 (2023) (applying constitutional avoidance in immigration context). "Under the doctrine of constitutional avoidance, '[w]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.'" Hersh v. U.S. ex rel. Mukasey, 553 F.3d 743, 753–54 (5th Cir. 2008) (quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988)). Here, the State has deployed the buoy system to prevent cartels from trafficking an unprecedented number of aliens, an unknown number of terrorists, and illegal drugs such as fentanyl across the Rio Grande. To prevent a collision between the Rivers and Harbors Act and the State's constitutionally guaranteed right to protect itself, the Court should hold that the terms of the Rivers and Harbors Act do not apply here.

I have not given much thought to the Invasion Clause. Nor have the courts--until now.

This week, the American Bar Association held its annual meeting. The House of Delegates adopted a resolution that opposed single-judge divisions:

RESOLVED, That the American Bar Association urges federal courts to eliminate case assignment mechanisms that predictably assign cases to a single United States District Judge without random assignment when such cases seek to enjoin or mandate the enforcement of a state or federal law or regulation and where any party, including intervenor(s), in such a case objects to the initial, non-random assignment within a reasonable time; and

FURTHER RESOLVED, That the American Bar Association urges that, in such situations, case assignments are made randomly and on a district-wide rather than division-wide basis.

These resolutions have no force on their own. Indeed, I have written how the ABA's influence has waned significantly, so it is difficult to put much stock in these sorts of statements.

On the merits, the resolution does not explain why these sort of assignments should be avoided. It simply takes it as a given that single-judge divisions are bad. But this issue is not self-evident. Absent allegations of bias, whether actual or perceived, what exactly is the reason for objecting to the assignment? The Department of Justice has attempted to make this argument in several Texas district courts. But, in my view at least, DOJ never actually makes the case. The most they can say is that "judge-shopping" affects how the public perceives the judiciary, and that perception problem warrants reassignment. That argument only works, though, if the judges who are shopped are behaving improperly. If the judges are neutral--as DOJ concedes they are--then any perception problem is just that, a perception. Indeed, DOJ can't even say what that perception is.

The bigger underlying issue is a simple fact: judge-shopping is not new. Every lawyer who has ever noticed a "related case" was trying to shop for a judge. Sure, there are issues of economy when a judge, already familiar with an issue, hears a "related" case. But that doctrine is malleable, and allows litigants to request a judge who, based on past practice, will be favorable.

More importantly, progressives have long taken advantage of judge-shopping in single-judge divisions. In a recent decision, Judge Wesley Hendrix of the Northern District of Texas-Lubbock Division denied DOJ's motion to transfer a case. His opinion explains that "single-judge divisions are not new." To no one's surprise, lawyers have long brought "suit in their preferred forum." Judge Hendrix writes about Judge William Wayne Justice:

In fact, history is replete with examples of plaintiffs repeatedly litigating in the same court. For example, the federal government chose to bring numerous Texas public-school desegregation cases before the same judge in the Eastern District of Texas. [FN3]

[FN3] See United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285 (E.D. Tex. 1969); United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970); United States v. Texas, 342 F. Supp. 24 (E.D. Tex. 1971); United States v. Texas, 356 F. Supp. 469 (E.D. Tex. 1972); Doe v. Plyler, 458 F. Supp. 569 (E.D. Tex. 1978); United States v. Texas, 498 F. Supp. 1356 (E.D. Tex. 1980); United States v. Texas, 523 F. Supp. 703 (E.D. Tex. 1981); United States v. Texas, 506 F. Supp. 405 (E.D. Tex. 1981); United States v. Texas, 628 F. Supp. 304 (E.D. Tex. 1985); see also Frank R. Kemerer, William Wayne Justice: A Judicial Biography 118 (University of Texas Press, 1st ed. 1991).

Never heard of Judge Justice? You should have. Perhaps his most familiar decision was the Supreme Court case that came to be known as Plyler v. Doe. He also single-handedly controlled the Texas prison system for nearly two decades. His obituary in the New York Times observed that "he came to be called the most powerful man in Texas by those who agreed with his largely liberal decisions and the most hated by those who differed."

How did Judge Justice attract so many significant cases? He long held court in single-judge divisions. And civil rights litigants routinely filed cases in his court. David Richards, a civil rights litigator, observed in the Texas Observer how liberals judge-shopped to Judge Justice:

In the not so secret world of lawyers, venue is frequently the linchpin of success in litigation.  Where a case is tried may be the most important factor in outcome. In short order the handful of Texas civil rights lawyers began to beat a path to Tyler, where the Judge heard every case filed in federal court.  He issued landmark decisions on reform of the Texas juvenile justice system, the Texas prison system and the education of alien school children, to name just a few.  Predictably, the Tyler docket became overcrowded and a new judge was assigned to hear a portion of the cases.  We were forced to scramble a bit in our venue search, for a while one was assured of getting Judge Justice if you filed in Sherman, Texas then that forum became uncertain.  In my last filing before him I had to pursue the Judge to Paris, Texas, where for a short time he had the entire docket.

It is not a secret that Judge Justice took steps to ensure that he maintained single-judge divisions. Mark Barringer wrote a book about case assignments on the Eastern District of Texas. It seems that between 1968 and 1970, Judge Justice had 100% of the filings in Tyler, Sherman, Paris, and Marshall. Between 1970 and 1979, Judge Justice maintained 100% of the cases filed in Paris. I could not determine the status of Judge Justice's docket between 1979 and 1982. In 1982, the Paris division was divided, so that Judge Justice would hear 2/3 of those cases. In 1984, Judge Robert Parker, a Carter appointee, was given 100% of the cases in Marshall and Paris. And in 1985, Judge Parker was given 100% of the assignments in Marshall, Texas. In 1992, Judge Justice was once again given 100% of all pending and new Paris division cases. A 1995 order preserved Judge Justice's 100% assignment of Paris cases. Judge Justice would take senior status in 1998, and he moved to Austin. That year, his case assignments were removed. The Paris division was removed by Congress in 2003.

Here is a summary that I think is complete. (Please e-mail me if I'm missing something; subtweets with screenshots are less helpful). Judge Justice appears to have had all of at least one division's case filings for the following periods:

• 1968-1970: 100% of Tyler, Sherman, Paris, and Marshall
• 1970-1979: 100% of Paris
• 1979-1982: Inconclusive
• 1982-1992: No 100% divisional assignment
• 1992-1997: 100% of Paris
• 1997-1998: No 100% divisional assignment

Today, Judge Justice is valorized on the left. The University of Texas named its public interest law center after Justice. Imagine that? The University of Texas honors a judge who sat in a single-judge division for decades, and routinely issued rulings in favor of like-minded litigants. Thankfully, there was no Twitter in the 1980s. Not everyone was so pleased. Professor Lino Graglia of the University of Texas said that Justice "wreaked more havoc and misery and injury to the people of Texas than any man in the last 25 years."

Long before Judges Kacsmaryk and Tipton, there was Judge William Wayne Justice. And Judge Justice is not alone. I have written about Judge Frank Johnson, who held a single-judge division in Montgomery, Alabama. Johnson, like Judge Justice, is lionized as a hero of the civil rights movement. I'm sure there are others.

As far as I am aware, the ABA did not adopt a resolution opposing Judge Justice's single-judge divisions. Judge-shopping is not new.

Update: The ABA also released a report in support of the resolution.

In politics, as in nature, every action has an equal and opposite reaction. When congressional Democrats impeached President Trump, twice, it was inevitable that Republicans would seek to use impeachment against democrat politicians. And now that the Democratic presidential administration has indicted President Trump, it will inevitably come to pass that Republicans will seek to indict Democratic politicians. Two recent pieces in the New York Times reflect these Newtonian reactions.

First, Carl Hulse writes that impeachments and censures, once rare, have become the new normal in Congress. There are currently investigations to impeach the Secretary of Homeland Security, the Attorney General, and even President Biden himself.

Proposals to censure lawmakers and impeach members of the Biden administration are piling up quickly in the House in an illustration of how once-solemn acts are becoming almost routine as the two parties seize on these procedures as part of their political combat. And the trend is only likely to intensify given the enmity between Republicans and Democrats over a new federal indictment brought against Mr. Trump for his efforts to overturn the 2020 election, and the G.O.P.'s desire to even the score.

The proliferation of censures and cries for impeachment is troubling to some who see it as a threat to the standing of the institution as well as diminishing the weight such punishments are supposed to carry. Censure is the congressional penalty just below expulsion.

These reactions were entirely foreseeable:

But it is a truism of the contemporary Congress that once one party does something the other sees as a breach, the aggrieved party will return fire once it gets the chance — and perhaps even take things up a notch. Tit for tat is the coin of the congressional realm. . . .

"I said two years ago, when we had not one but two impeachments, that once we go down this path it incentivizes the other side to do the same thing," said Senator Mitch McConnell, Republican of Kentucky and the minority leader.

"Impeachment ought to be rare," he said, adding, "This is not good for the country."

In December 2019, I warned in the Atlantic that Trump's first impeachment could set a dangerous precedent:

Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States Code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president's duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

Just because Trump could have been impeached does not mean he should have been impeached. The same goes for indictment.

There is a second piece in the Times that speaks to our downward spiral. Jack Goldsmith writes that the D.C. indictment of Trump "may have terrible consequences."

There is no getting around the fact that the indictment comes from the Biden administration when Mr. Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Mr. Biden, the Democratic Party's probable nominee.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration's responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

Goldsmith adds that Republicans already hold a dismal view of DOJ in light of the Russia-Russia-Russia saga, in tandem with Hunter Biden's apparent sweetheart deal. Goldsmith explains that Republicans, when in power, will seek to exact payback:

The prosecution may well have terrible consequences beyond the department for our politics and the rule of law. It will probably inspire ever more aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposing party, to the detriment of sound government.

And such charges won't be difficult. Smith's prosecution, at bottom, accuses Trump of lying to aggrandize his power. Virtually every person who achieved high office engaged in related conduct.

It may also exacerbate the criminalization of politics. The indictment alleges that Mr. Trump lied and manipulated people and institutions in trying to shape law and politics in his favor. Exaggeration and truth shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. These practices will probably be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.

Back in August 2022, I explored the dilemma facing Merrick Garland. Ultimately, he chose to indict--that decision was his, and not that of Jack Smith. In some regards, this decision was Newtonian as well. In an alternate reality, Justice Garland would be on the Supreme Court, Roe v. Wade would still be on the books, President Hillary Clinton would be halfway through her second term in office, and Donald Trump, well, he would probably still be under indictment in New York. But that timeline did not happen. We do not know where Trump's indictment will lead. But I agree with Goldsmith that it will likely be terrible.

Garland v. Vanderstok presented a challenge to the "Frame or Receiver" rule. (The press has dubbed it the "Ghost Gun" regulation.) The district court vacated the rule, and the Fifth Circuit denied a stay. The Solicitor General then petitioned for a stay of the lower-court ruling on the Supreme Court's emergency docket. Circuit Justice Alito entered a temporary administrative stay. When that time expired, Circuit Justice Alito extended the administrative stay for another four days, until Tuesday, August 8. What did this shadow docket delay mean? On Sunday, I observed that the extension was designed to allow dissenters to prepare a written dissent, or to allow more time for a majority to coalesce.

On Tuesday, the Supreme Court stayed the lower court's ruling. The vote was 5-4, with Chief Justice Roberts and Justice Barrett in the majority. Justices Thomas, Alito, Gorsuch, and Kavanaugh noted their dissent, but they did not prepare a dissent. The four-day extension was apparently not granted to allow the dissenters time to prepare a dissent. (It is possible a draft dissent was circulated but was never published.) Rather, it seems the purpose of the extension was to try to cobble together a fifth vote to deny a stay. But a fifth vote was not to be had. Why? Because Justice Barrett declined to cast that vote.

Now Justice Barrett has told us that we should "read the opinion" to understand the Court's shadow docket rulings. But there was no analysis here. Just an unsigned order with no analysis.

What should we make of Justice Barrett's decision here? Well, by my count, since Doe v. Mills in October 2021, Justice Barrett has (likely) voted to grant or deny a stay on the shadow docket six times, where certiorari before judgment was not granted. (I have a few caveats noted below). Those six cases are Austin v. U.S. Navy Seals 1-26 (likely granting stay), NetChoice v. Paxton (vacating stay), United States v. Texas (granting stay), FDA v. Alliance for Hippocratic Medicine (likely granting stay), Danco Laboratories v. Alliance for Hippocratic Medicine (likely granting stay), and now Garland v. Vanderstok (granting stay).

All six cases share something in common: Justice Barrett did the opposite of whatever a conservative Fifth Circuit panel did. When the Fifth Circuit granted a stay, Justice Barrett vacated the stay. When the Fifth Circuit granted an injunction, Justice Barrett stayed the injunction. And all of those Fifth Circuit panels included well-known conservative jurists. Indeed, the first three cases were presided by Edith Jones, whom I've described as the conservative lodestar of the Fifth Circuit.

By my count, with a few caveats, since Doe v. Mills, Justice Barrett has not granted shadow docket relief on any application from any other circuit. I am omitting Glossip v. Oklahoma and Mountain Valley Pipeline v. Wilderness Society, as no dissents were noted, and it is not feasible to count unrecorded dissents. And cert before judgment was granted in Arizona v. Mayorkas and Department of Education v. Brown.(Please e-mail me if I am missing a case).

Meanwhile, Justice Kavanaugh, who joined the Doe v. Mills concurrence, voted with Justices Thomas, Alito, and Gorsuch in United States v. Texas and in Garland v. Vanderstock. I don't think there is much point parsing Doe v. Mills further. (I wrote about Barrett's concurrence in Mills here and here). If Justice Barrett thought there was some reason to grant a stay in Vanderstock, she could have told us. But she said nothing--even with an extra four days to think about it. Doe v. Mills was simply a restatement of the defining feature of Justice Barrett's jurisprudence: caution. And especially cautious where the Fifth Circuit steps out of line.

Progressives should be grateful that the Supreme Court is not the Fifth Circuit.

Update: Steve Vladeck identified eight cases that I did not discuss. I was not looking for death penalty cases, which accounts for Hamm and Crow.

I did not include Ohio v. Department of Labor and NFIB v. OSHA as those cases were decided following oral argument, with a reasoned opinion--not your typical shadow docket fare.

In Milligan, certiorari was granted before judgment. In Ardoin v. Robinson, certiorari was granted before judgment, and the case was held in abeyance while Milligan was pending. This is the case from the Fifth Circuit panel Steve mentioned. In Merrill v. Caster, certiorari was also granted before judgment.

Louisiana v. American Rivers was a stay of an application arising from the Ninth Circuit Clean, without a grant of cert before judgment. I missed that one.

The 14:

1. Crow
2. NFIB
3. Ohio v. DOL
4. Milligan
5. Caster
6. Navy SEALs
7. American Rivers
8. NetChoice
9. Ardoin
10. Hamm v. Smith
11. AZ v. Mayorkas*
12. Danco
13. FDA
14. Vanderstok

* — Josh accounts for this by asserting that it doesn't count if the Court granted cert.

— Steve Vladeck (@steve_vladeck) August 9, 2023