From the motion for a temporary restraining order in Nat'l Ass'n for Gun Rights v. Grisham, filed yesterday in New Mexico federal court (paragraph numbering removed).
Governor Grisham issued Executive Order 2023-130 (the "Executive Order") on September 7, 2023…. In the Executive Order Governor Grisham declared that a state of emergency exists in in New Mexico due to gun violence.
Based on the Executive Order, [N.M. Secretary of the Department of Health Patrick Allen issued "Public Health Emergency Order Imposing Temporary Firearm Restrictions, Drug Monitoring and Other Public Safety Measures" dated September 8, 2023 (the "PHE Order")[:] …
[1] No person, other than a law enforcement officer or licensed security officer, shall possess a firearm … either openly or concealed, within cities or counties averaging 1,000 or more violent crimes per 100,000 residents per year since 2021 according to Federal Bureau of Investigation's Uniform Crime Reporting Program AND more than 90 firearm-related emergency department visits per 100,000 residents from July 2022 to June 2023 according to the New Mexico Department of Public Health [which, according to news accounts, includes only Bernalillo County, where Albuquerque is located -EV], except:
Last week, a public interest organization (CREW) filed a lawsuit in Colorado state court seeking to have former President Donald Trump removed from the ballot on the ground that he is disqualified by Section Three of the Fourteenth Amendment. On Friday, Trump filed a notice of removal to put the case in federal court, under the theory that the case turns on a federal constitutional issue -- the interpretation and application of the Fourteenth Amendment.
As with the fights to remove the criminal prosecutions in Fulton County, Georgia, what is at stake in a fight over removal is the forum that will hear the case -- in principle, the substance will not change. But of course, litigants frequently care about the forum for both substantive and practical reasons. So here are a few thoughts on whether the motion will succeed:
First, this has happened before. In October 2021, a state court in New Mexico removed a state official, Couy Griffin, from office for his participation in the January 6 insurrection. Griffin, too, had tried to remove that case to federal court, and the federal court concluded that he could not do so and remanded the case. Whether Trump's attempt to remove will face the same fate will turn on two legal issues -- Article III, and 28 U.S.C. 1331.
From yesterday's statement by Justice Alito in Moore v. U.S., responding to a letter from Sen. Durbin that's available here:
Senator Durbin's letter expressed the view that recusal is necessary because I participated in two interviews that resulted in two articles about my work that appeared in the Wall Street Journal. The interviews were jointly conducted, and the resulting articles were jointly written, by James Taranto and David B. Rivkin, Jr…. Senator Durbin argues … that Mr. Rivkin's participation requires me to recuse because Mr. Rivkin, who is both a much-published opinion-journalist and a practicing attorney, is one of the attorneys in this case.
This argument is unsound. When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate. The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly. His involvement in the case was disclosed in the second article, and therefore readers could take that into account.
There was nothing out of the ordinary about the interviews in question. Over the years, many Justices [citing Justices Breyer, Sotomayor, and Gorsuch and Chief Justice Roberts] have participated in interviews with representatives of media entities that have frequently been parties in cases before the Court, including NPR, the New York Times, CBS, Fox News, National Review, and ABC. Similarly, many of my colleagues have been interviewed by attorneys who have also practiced in this Court {[f]or instance, Bryan Garner has interviewed several Justices, and he argued a case three Terms ago}, and some have co-authored books with such attorneys [citing Justices Ginsburg and Gorsuch]. Those interviews did not result in or require recusal.
In yesterday's decision in Missouri v. Biden, the Fifth Circuit (Judges Edith Clement, Jennifer Elrod, and Don Willett) held that the federal government violated the First Amendment by causing social media platforms to block posts on various topics (including "the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side-effects, election fraud, and the Hunter Biden laptop story").
The court acknowledged that the First Amendment doesn't bar social media platforms from acting on their own to restrict user speech, since the First Amendment applies only to the government and not to private parties (including large corporations). But the court concluded that the First Amendment may be violated "when a private party is coerced or significantly encouraged by the government to such a degree that its 'choice'—which if made by the government would be unconstitutional—'must in law be deemed to be that of the State.' This is known as the close nexus test."
As to what constitutes "significant[] encouragement by the government" to restrict speech, the court held:
For encouragement, we read the law to require that a governmental actor exercise active, meaningful control over the private party's decision in order to constitute a state action. That reveals itself in (1) entanglement in a party's independent decision-making or (2) direct involvement in carrying out the decision itself. In any of those scenarios, the state has such a "close nexus" with the private party that the government actor is practically "responsible" for the decision, because it has necessarily encouraged the private party to act and, in turn, commandeered its independent judgment.
As to what constitutes "coerc[ion]," the court held:
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
More and more governments are demanding that "professionals," rather than mere volunteers, help people, whether feeding those in need or trimming a neighbor's trees. But that crowds out civil society and frays the bonds between us. Is it therefore time to recognize a "right to volunteer"? Director of the Center for Judicial Engagement Anthony Sanders volunteers his thoughts in this new piece at Discourse Magazine.
I recently did three relatively detailed interviews about the criminal cases against Donald Trump and his potential disqualification from the presidential election under Section 3 of the Fourteenth Amendment.
One is an interview for Reason TV, conducted by Zach Weissmuller and Liz Wolfe, who asked many interesting questions:
Another was for the Washington Post, which included several comments of mine in a video feature on Trump and Section 3 of the Fourteenth Amendment. If nothing else, it features a nice view of one of our classrooms at George Mason university! The video also features commentary by Jeffrey Rosen, President of the National Constitution Center.
Finally, I did a detailed Russian-language interview covering both the indictments and Section 3 for Radio Free Europe/Radio Liberty. The transcript and audio are available here. I recognize that only a few of our readers at this site know Russian. But for those who do, the RFE/RL interview may be of interest. It covers a good deal of ground.
I recently published an article on Section 3 disqualification for Lawfare. Here are links to pieces I have written about the criminal cases against him:
This final post tackles the biggest question raised by the discourse surrounding 303 Creative v. Elenis: Is there reason to suspect that a standing realignment might already be underway? Here's the key discussion from my paper:
Begin with 303 Creative itself, which could easily be cited as evidence against the idea that legal culture is undergoing a standing realignment. Again, left-of-center jurists on both the court of appeals and the Supreme Court either supported standing or else left it unchallenged. Yet the discourse surrounding the case suggests that other trend-setters on the legal left are eager to push jurisdictional arguments in cases and contexts where liberal justices, so far, are not.
Moreover, other cases evidence a standing realignment. In the student loan case, for instance, Justice Kagan's dissent for the three liberal justices (herself included) emphasized standing as well as the merits. The key question was whether a particular loan service entity created by a state should count as part of the state specifically for standing purposes. Ascertaining the exact boundaries of state governments is an infamously murky undertaking, sometimes yielding different answers under different doctrines. Yet Kagan's dissent hit hard on this issue. So perhaps the left-leaning justices are ready to cry foul whenever standing is a close or open question under existing case law, and many left commentators are now ready to do so even when it isn't.
Other recent cases, too, have featured left justices enforcing standing restrictions, even when some conservative justices haven't. This pattern has become increasingly noticeable since Justice Kennedy retired in 2018, generating a clear conservative majority on the Court. Besides the student loan case, take United States v. Texas, which ruled for the Biden Administration on standing, yielding a solo dissent by Justice Alito. Or California v. Texas, where only Justices Alito and Gorsuch would have found standing. Related areas of justiciability are also at play. Take New York State Rifle and Pistol Association v. City of New York, where six justices rejected a Second Amendment claim as moot, with Justices Alito, Thomas, and Gorsuch dissenting. Additional examples of bipartisan standing denials include the failed efforts to challenge President Biden's victory in the 2020 election. These cases can be viewed as liberal wins, even without liberal rulings on the merits. All in all, standing (and some related doctrines) have emerged as a vital way for left justices to snatch victories from the jaws of a conservative Court….
In my first few posts, I've argued that the legal and factual criticisms leveled against 303 Creative v. Elenis are basically misplaced, or at least greatly overblown. That conclusion raises an important question: why did procedural criticism regarding the case take off? In my paper, I suggest four potential answers.
First, procedure matters. Jurisdiction isn't just something that you study in Civil Procedure or Federal Courts. True, the "she worries" meme may have been especially popular among the fairly large number of lawyers at large in American society. But general media attention and other evidence suggests that at least some significant number of lay people also understand that courts have limited authority to rule. And those people can become incensed when they believe that that authority is being abused. The discourse on 303 Creative thus shows that the judiciary's descriptive legitimacy is, to some significant degree, tethered to its observance of jurisdictional principles.
Second, soundbites matter. The idea that the Supreme Court decided a "fake case" or "made up case" has a kind of popular resonance that sophisticated legal ideas don't, especially when coupled with a larger discourse suggesting shady happenings at the Court. Further, the unfounded "she worries" meme probably couldn't have happened without real-time, bite-sized mass communication. Commentators and audiences alike were ready to believe and repeat that the justices were simply ignoring obvious legal principles, based on true but misleading snippets of information. The fact that these extreme criticisms can't survive scrutiny didn't undermine their transmissibility. For instance, the "she worries" meme garnered quick uptake in a district court order—thereby proving that at least some chambers are attentively listening.
Michael Stokes Paulsen, Michael McConnell, Sam Bray, and I recently completed and posted the 2023 online supplement to our constitutional law casebook: The Constitution of the United States. (I shilled for the book earlier on this blog -- at the start of the Trump administration -- as "A new constitutional law casebook for our unsettled age," and I think that claim has aged even better than I could have imagined.) The supplement covers four cases from last term -- National Pork Producers v. Ross; Moore v. Harper; 303 Creative v. Elenis; and Students for Fair Admissions v. Harvard.
The supplement is largely intended for users of the casebook, of course, but I thought the notes might be of interest more generally to those who have read and thought about the cases. In particular, here are the notes for Students For Fair Admissions:
So says the New Jersey intermediate appellate court, in a case involving a Jewish wife who was claiming her husband refused to give her a "get" (a Jewish religious divorce).
In S.B.B. v. L.B.B., decided yesterday by the N.J. appellate court, in an opinion by Judge Greta Gooden Brown joined by Judges Patrick DeAlmeida and Stephanie Mitterhoff, the plaintiff husband and defendant wife were getting divorced, and the wife claimed that the husband wasn't giving her a Jewish religious divorce. (The husband "denied withholding the get, claimed he had given the get to the Chief Rabbi of Elizabeth in June 2020.") To quote the court,
In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a "get" (pluralized as "gittin"), which must, in turn, be signed by an "eid," or witness. A woman who attempts to leave her husband without obtaining a get becomes an "agunah" (pluralized as "agunot"), which subjects her to severe social ostracism within the Orthodox Jewish community. Agunot may seek relief in a "beth din," a rabbinical court presided over by a panel of three rabbis. The beth din may then issue "psak kefiah," or contempt orders authorizing sanctions, which include, but are not limited to, the use of force against a husband to secure a get.
The wife made a video, which ended up getting broadly distributed online, and in which she apparently said:
Hi. My name is [L.B.B.]. I'm a mother of four children and I live in the United States without any family for the last seventeen years. In August 2019, my husband left the house and we're trying to get an agreement. We still did not get any of that. I tried to reach … the community Rabbi[ ] for help, and he said he will, and he got the get from my husband, but he is holding it for over a year now. The only way [the Chief Rabbi] can give it to me is by my husband permission. I'm seeking for help. I'm asking whoever can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Chief Rabbi] the proof to give me the get. To release the get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha [blessing] on his head.
This led to dozens of phone calls from strangers to the husband, and the husband said he feared it might lead to violence (which had sometimes happened to Jewish husbands who refused to give gets). The husband therefore sought and obtained a restraining order that
barred defendant from having "any oral, written, personal, electronic, or other form of contact or communication with [p]laintiff," and specifically ordered defendant to "remove any and all posts from all social media platforms requesting the 'get'" and "cease and desist … creating and posting on all social media platforms." …
One of the most salient indictments of 303 Creative v. Elenis concerned allegedly false facts that supposedly undergirded the case. This post turns to those factual issues. Here's an excerpt from my paper:
Shortly after initiating suit, the designer [plaintiff Lorie Smith] supposedly received a terse request for web services in connection with a same-sex wedding. This asserted fact featured in the designer's briefing throughout the case. Why? Because it is very hard to view such requests as speculative if one has already taken place. Thus, this supposed fact tended to buttress the designer's claim of standing. Yet the district court doubted the significance of the asserted fact, and neither the Court of Appeals nor the Supreme Court explicitly mentioned it at all.
On the eve of the Supreme Court's decision, Melissa Gira Grant of The New Republic broke the news that she had contacted the individual who had supposedly made the request, and he denied doing so. This report was later confirmed. By then, the Supreme Court had issued its decision without commenting on the matter. And Grant's story had set off a firestorm.
Some reactions to Grant's story reveal an assumption that the attorneys in 303 Creative fabricated the apparently bogus request to help their case. Other commentators, however, have expressed doubt on that point, at least until specific proof comes to light. Clearly, any attempt to fabricate evidence—particularly by an attorney—would constitute unethical behavior.
9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.
The court ruled that the definition of "invasion" is a political question, and that Texas therefore could not rely on the Invasion Clause to justify placing buoys in the Rio Grande River in defiance of federal law.
Today, federal district Judge David Alan Ezra issued a preliminary injunction against the state of Texas in United States v. Abbott, a case where the federal government is suing the state of Texas for installing floating buoy barriers in the Rio Grande River, thereby creating a safety hazard and potentially impeding navigation. The Biden Administration claims this violates the Rivers and Harbors Act of 1899. Texas claims it does not, but but also cites one of the "invasion" provisions of the Constitution as justification for the state's actions. Texas relies on Article I, Section 10, Clause 3 of the Constitution, which 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." Texas contends that illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in response, even if doing so might violate a federal statute, and even if there is no congressional authorization for war. On this view, the use of the buoys is just a modest war measure!
In today's ruling, Judge Ezra concludes that Texas violated the statute. He also rejects the state's invasion theory, primarily on the ground that the issue of invasion is a "political question":
[T]he political question doctrine bars consideration of Texas's "invasion" defense. Texas argues that it constructed the floating barrier pursuant to the Self-Defense Clause, U.S. Const. art. I, § 10, cl. 3,27 because it is being "invaded" by "[t]housands of aliens . . . including members of cartels," and thus asks the Court to exempt Texas's conduct from the RHA…. To credit Texas's allegation of invasion would be to make a policy decision on a topic the Supreme Court and Fifth Circuit have identified as a nonjusticiable political question….
Several constitutional provisions assign the federal government—not states—the authority to recognize and respond to invasions. See U.S. Const. art. I., § 8, cl. 15 (power to call forth militia); art. I, § 9, cl. 2 (power to suspend habeas corpus); art. IV, § 4 (power to protect against invasion). The Constitution's commitment of the question of an "invasion" is especially strong when it involves "the immigration and the status of aliens," which the Constitution assigns exclusively to Congress. Arizona v. United States, 567 U.S. 387, 394-95 (2012)….
Thus, courts of appeals have uniformly declined to consider whether and when an "invasion" occurs because of illegal immigration, as it "involves matters of foreign policy and defense," which the Constitution specifically commits to the federal government. Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996) (finding nonjusticiable plaintiffs' claim that "the federal government violated the Invasion Clause because the influx of legal and illegal aliens into New York State represents an 'invasion,'"); New Jersey, 91 F.3d at 470 (finding nonjusticiable New Jersey's claim of invasion by illegal aliens); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995) ("[W]hether the level of illegal immigration is an 'invasion' of Florida and whether this level violates the guarantee of a republican form of government present nonjusticiable political questions."); California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997) ("There are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion."). Likewise, the Fifth Circuit has dismissed as nonjusticiable Texas's previous claim that the United States' alleged "fail[ure] to control illegal immigration" violated the Naturalization Clause…..
If the issue is a political question, that means Texas cannot unilaterally decide for itself when an "invasion" has occurred and thereby seize the power to "engage in war" with Mexico:
Texas hopes to distinguish its case from the resounding rejection of similar "invasion" arguments in the cases cited above by centering the argument on the State's right to "engage in War" when "actually invaded." U.S. Const., art. I, § 10, cl. 3….
[A]ll Texas's new argument does is ask the Court to take the additional step—beyond the nonjusticiable question of whether the federal government has failed to protect Texas from invasion—of sanctioning Texas's assertion of plenary power to declare and respond to "all types of invasions, including invasions from non-state or quasi-state actors." (Dkt. # 26 at 24.) Under this logic, once Texas decides, in its sole discretion, that it has been invaded, it is subject to no oversight of its "chosen means of waging war." (Dkt. # 33 at 7-8.) Such a claim is breathtaking.
While Judge Ezra relies mainly on political questions reasoning, he also emphasizes the structural danger of giving states' unilateral authority to decide when an "invasion" has occurred and thereby claim the power to "engage in war."
I have doubts about the entire "political questions" doctrine, and would have preferred for the court to simply rule that illegal immigration and drug smuggling do not qualify as "invasion." Two of the circuit court decisions cited by Judge Ezra (Padavan v. United States and New Jersey v. United States) did exactly that (in addition to ruling against the states on political questions grounds). But, obviously, I understand that a district judge cannot simply ignore the political questions issue. And if the invasion issue in this case had to be decided on that basis, Judge Ezra's approach is the right way to do it.
This is just a ruling on a preliminary injunction, and not a final ruling on the merits. But the former likely prefigures the judge's ruling on the latter. First, however, Texas is probably going to appeal today's decision to the US Court of Appeals for the Fifth Circuit.
I am guardedly optimistic that Texas will lose there, as well. But we'll have to see what happens.
Section 3 disqualification is justifiable as a democracy-limiting tool to protect democracy. But there are slippery-slope issues that deserve serious consideration.
Earlier today, Lawfare published my article on "Section 3 Disqualifications for Democracy Preservation." Here is an excerpt:
There is an ongoing debate over whether Donald Trump must be disqualified from holding the presidency—or any public office—under Section 3 of the 14th Amendment. Enacted in the aftermath of the Civil War, Section 3 states that "No person" can hold any state or federal office if they had previously held state or federal public office in the United States and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
In a much-discussed new article, prominent conservative originalist legal scholars William Baude and Michael Stokes Paulsen argue that this rule is broad enough to bar Trump because of his efforts to overturn the result of the 2020 election and his role in instigating the Jan. 6, 2021, attack on the Capitol….
Part of the debate triggered by the article focuses on whether Baude and Paulsen have correctly interpreted key terms such as "insurrection" and "aid or comfort." But other critics contend that disqualifying Trump is, as Stanford Law Professor Michael McConnell puts it, likely to have "profoundly anti-democratic" consequences, depriving voters of the opportunity to vote for the candidate of their choice…..
If Baude and Paulsen's analysis of Section 3 is otherwise sound, concerns about democracy should not prevent officials from using it to disqualify Trump and others implicated in the events leading up to Jan. 6. Democracies have good reason to disqualify would-be officeholders whose track records indicate they endanger liberal democratic values. There is plenty of relevant precedent for disqualification for purposes of democratic preservation in both the United States and other democracies, most notably "lustration" laws barring officeholding by former functionaries of communist dictatorships in the newly democratic nations of Eastern Europe. While slippery-slope concerns should be taken seriously, there are safeguards against them, particularly in the form of judicial review.
There is, however, one genuine serious downside of applying Section 3: Some insurrections are actually morally defensible. Disqualifying those who participate in rebellions fighting for a just cause is problematic. But it may be the price we have to pay for Section 3's failure to distinguish between just and unjust rebellions against authority. Some number of unjust disqualifications may need to be accepted in order to reduce the greater menace of allowing would-be authoritarians access to the most powerful office in the land.
The rest of the article develops these points in more detail and addresses a number of potential objections.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
