8/7/2010: Justice Elena Kagan takes oath.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Shadow Docket Delays
What does it mean when the Circuit Justice extends an administrative stay?
On July 24, the Fifth Circuit declined to stay the district court's vacatur of the "Frame or Receiver" rule. Three days later, on July 27, the Solicitor General filed an application for a stay of the district court's ruling. The next day, on July 28, Circuit Justice Alito entered an administrative stay and a briefing schedule:
Order issued by Justice Alito: Upon consideration of the application of counsel for the applicants, it is ordered that the June 30, 2023 order and July 5, 2023 final judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, are hereby administratively stayed until 5 p.m. (EDT) on Friday, August 4, 2023. It is further ordered that any response to the application be filed on or before Wednesday, August 2, 2023, by 5 p.m. (EDT).
The briefing was completed, but no ruling came on August 2 or 3. On August 4, Circuit Justice Alito further extended the administrative stay:
Order issued by Justice Alito: Upon further consideration of the application of counsel for the applicants, the responses, and the reply filed thereto, it is ordered that the stay issued on July 28, 2023, is hereby extended until 5 p.m. (EDT) on Tuesday, August 8, 2023.
What do we make of this four-day delay? Two broad possibilities. First, a majority opinion has already coalesced--either to grant the stay or deny the stay--and the dissenters need some time to prepare a dissent. Second, a majority opinion has not coalesced, and more time is needed to conference the issue. (I think certiorari before judgment may be in the cards here.)
I did a quick search of the phrase "Upon further consideration of the application of counsel for the applicants, the responses, and the reply filed thereto" in the Supreme Court database. This language has been used about 7 times to vacate a stay. But I onyl found two other cases where this language was used to extend a stay: the mifepristone cases. Circuit Justice Alito extended an administrative stay of the Fifth Circuit's ruling by seven days. And, after those seven days lapsed, the Court exercised its spooky shadow docket power, and stayed the Fifth Circuit. Why was there an extension of time? Perhaps Justice Alito needed more time to write a dissent. (Justice Thomas dissented without opinion.) Or, perhaps negotiations were in flux, and Alito was trying to scrounge more votes, but ultimately was unsuccessful. I could not find any other instance in which an administrative stay was extended with this language.
If past is prologue, the Court will stay the Fifth Circuit again in the "Frame or Receiver" case. Or, the Court may be cobbling together votes for cert before judgment. Plus don't forget the recently-decided "Pistol Brace" case from the Fifth Circuit, which should be coming to the shadow docket soon. If these cases are granted, along with Rahimi, we will have a very Fifth Circuit gun-centric term ahead of us.
Who Can Use Twitter's Offer of Legal Fees "If You Were Unfairly Treated by Your Employer Due to [Tweets]"?
More people than one might imagine, chiefly because many states, counties, and cities have laws that ban private employers from discriminating against their employees based on certain kinds of speech.
If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill.
No limit.
Please let us know.
— Elon Musk (@elonmusk) August 6, 2023
"Unfairly treated," I take it, means in context treated in ways that the law recognizes as unfair and therefore civilly actionable. Who might benefit from that? (I focus here on American law, since that's the only sort of law I know.)
[1.] Many people are unaware of this, but many states, counties, and cities ban even private employers from firing or otherwise disciplining their employees based on the employees' speech or political activity. What's covered varies widely: Some jurisdictions protect a very broad range of speech; others protect "political activity" defined broadly enough to protect a wide range of speech related to political matters; others protect only election-related speech (whether about candidates or ballot measures).
I lay out many such statutes in Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation (2012) (note that Utah has since enacted such a statute), and discuss the policy arguments for and against such statutes in Should the Law Limit Private-Employer-Imposed Speech Restrictions? (2022). It's also possible that a federal statute would protect people who Tweeted for or against political candidates, though that's not clear (see pp. 320-24 of my 2012 article).
Today in Supreme Court History: August 6, 1792
Clearing up Common Misconceptions About the Charges Against Trump
Recent articles by Lawfare and Walter Olson perform a valuable service on this front.
Lawfare and my Cato Institute colleague Walter Olson have recently posted valuable articles explaining the criminal charges filed against Trump for his efforts to overturn the results of the 2020 election, and clearing up some common misconceptions about them.
The Lawfare article, coauthored by six experts, systematically goes over the legal issues involved in all four counts against Trump. In the process, they clear up some notable misunderstandings, particularly claims - advanced by the editors of National Review and conservative legal commentator Andrew McCarthy - that the definition of "fraud" under federal law isn't broad enough to cover Trump's actions. While that may be true under the federal wire fraud statute and some other laws, it is not true under the statutes whose violation Trump is actually charged with.
For example, 18 U.S.C. § 371 makes it illegal for two more people to "conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose." As the Lawfare article explains,the Supreme Court has long interpreted this as going beyond financial fraud, to include any actions that "interfere with or obstruct one of its lawful governmental functions by deceit, craft, or trickery, or at least by means that are dishonest."
Lawfare also covers 18 U.S.C. § 241, the Reconstruction-era law which makes it a criminal offense for "two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States…" National Review is wrong to suggest that this law only criminalizes "violent intimidation and forcible attacks against blacks attempting to exercise their right to vote." As Lawfare notes, longstanding Supreme Court precedent has enabled prosecutors to use Section 241 to "prosecute a range of election interference schemes, including those aimed at preventing individuals from casting votes as well as those seeking to deprive cast votes of their lawful effect." Trump's efforts to substitute fake electors for the real ones, pressure state officials to falsify vote counts, and compel Vice President Mike Pence to illegally block certification of the electoral vote all qualify under this rubric.
For his part, Walter Olson has a helpful critique of claims that prosecuting Trump on these charges violates the First Amendment:
Nothing in the charges filed Wednesday seeks to punish the former president for speech or advocacy as such. While the indictment does recite many things Trump said and calls them false, it identifies each such statement as being part of an overall course of conduct satisfying the elements of a crime under one of four federal statutes: conspiracy to defraud the United States, 18 U.S.C. section 371; conspiracy to obstruct an official proceeding, 18 U.S.C. section 1512(k); obstruction of and attempt to obstruct an official proceeding, 18 U.S.C. section 1512(c); and conspiracy to deprive persons of protected rights, 18 U.S.C. section 241.
It is long established and ordinarily uncontroversial that speech can lose the protection of the First Amendment if, for example, it seeks to intimidate a public official into shirking a legal duty, or if it consists of the submission of forged documents to a government agency, or if it solicits or facilitates crime generally (this past term's Supreme Court decision in United States v. Hansen, criticized by colleague Thomas Berry on a different issue, reiterated that last simple truism). Speech that is part of a conspiracy to accomplish those things may be unprotected as well.
Walter also explains why this prosecution is fundamentally different from efforts by some on the political left to criminalize political "misinformation," which he (and I) have long opposed. In addition, he goes over several other issues involved in the prosecution, including covering some of the same ground as Lawfare.
In addition, he has some useful commentary on the issue of whether Trump must be acquitted because he genuinely believed the election was stolen from him. I discussed that issue in some detail in my own previous post about the indictment. As noted there, and more fully described by Orin Kerr, there is in fact extensive evidence that Trump knew he had lost. Additional evidence on that point comes from his Attorney General, William Barr, who discussed the election with Trump extensively at the time, and recalls that "he knew well he lost the election."
Furthermore, it's far from clear that proving Trump knew this is essential to get a conviction conviction. Even if Trump genuinely thought he won, it was still illegal for him to try to substitute fake electors for the real ones, and to pressure Pence into trying to block the electoral vote count despite lacking any legal authority to do so. I made some additional points on this issue here.
The pieces by Lawfare and Walter Olson won't be the last word on the debate over this indictment. But they do advance the discussion by going over key issues in detail, and refuting some common misconceptions.
Today in Supreme Court History: August 5, 1974
8/5/1974: Shortly after the Supreme Court decided United States v. Nixon, President Nixon released the "smoking gun" tape recorded in the Oval office.
A Possible Seventeenth Amendment Conflict Is Looming In Kentucky
Can the Kentucky legislature constrain the Governor's authority to fill a Senate vacancy?
The Seventeenth Amendment provides that each state shall have two senators, elected through popular elections. But what if a vacancy arises through death, resignation, or expulsion? The Seventeenth Amendment provides a two-part process. First, "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies." And what happens before that election is held? Second, "the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."
It is clear enough that a state legislature is not required to allow a Governor (that is, the "executive") to make a temporary appointment. According to Pew Research, forty-six states have granted such authority. Once the state legislature vests the Governor with that power, can the state legislature constrain the Governor's selection? Again, according to Pew, eleven of those states impose certain constraints on the selection. Specifically, the Governor must select a nominee from the previous senator's political party. This approach makes sense from a pragmatic perspective. If the people elected a Republican/Democrat Senator for a six-year term, the people should be represented by a Republican/Democrat during a temporary vacancy.
Kentucky is one such state. Senate Bill 228 establishes an intricate framework for how a Senate vacancy can be filled:
The Governor shall fill vacancies in the office of United States Senator by appointment and the appointee shall serve until a successor has been elected and qualified under . . . The appointee shall be selected from a list of three (3) names submitted by the state executive committee of the same political party as the Senator who held the vacant seat to be filled, shall have been continuously registered as a member of that political party since December 31 of the preceding year, and shall be named within twenty-one (21) days from the date of the list submission.
The Republican-controlled legislature passed the bill over the veto of Governor Andy Beshear, a Democrat. The veto message highlighted the federal constitutional objections to the bill:
I am vetoing Senate Bill 228 because it improperly and unconstitutionally restricts the Governor's power to fill vacancies in the United States Senate. The purpose of the Seventeenth Amendment to the United States Constitution was to remove the power to select United States Senators from political party bosses. Senate Bill 228 violates the very purpose of this Amendment by returning that power to political parties in the case of a vacancy. . . . The Seventeenth Amendment does not authorize legislatures to direct how the Governor makes an appointment to fill vacancies, and the legislature may not impose an additional qualification on who the Governor may appoint beyond the qualifications set for a United States Senator set forth in the Constitution.
Beshear also identified a concern under the state constitution:
The bill also is unconstitutional under the Kentucky Constitution. Section 152 of the state constitution provides that the Governor "shall" fill by appointment vacancies in offices for the State at large. No conditions, qualifications, or limits are placed on that appointment power.
When the last was enacted in 2021, Professor Vik Amar highlighted constitutional objections, based on a law review article he published in 2008. (Sandy Levinson wrote on the issue as well.)
This issue, however, may not remain academic. Mitch McConnell, the longtime Senator from Kentucky, has had health issues. The Republican leader's term will conclude in January 2027. And the Democratic Governor's term will conclude in December 2023. If a vacancy arises over the next five months, or longer if Beshear is re-elected, Senate Bill 228 would be put to the test.
Already, a prominent Democrat attorney in Kentucky said that Beshear may not follow the law, consistent with his veto message. There are two possible paths. First, Beshear could simply ignore the list, and pick whomever he wants. Second, Beshear could go on offense and seek some sort of declaration that the statute is unconstitutional.
"Beshear either says, 'hey, Republican Party, thank you for your list, but I'm appointing whoever I want' and then that immediately gets challenged in court, or you could see Beshear taking the route of filing a lawsuit," Abate said. "I mean, he's got the guts to defy it," Abate added.
This decision can have national implications, as McConnell is the leader of the Republican caucus. (The Washington Times offered some commentary.)
Here, I will not opine on the Seventeenth Amendment issue. (I will do so later). Rather, I want to opine on the procedural aspects of the process.
First, Beshear can simply ignore the list, and appoint whomever he wants. We could expect prompt litigation from members of the state executive committee. But what remedy would the committee seek? Beshear would have already fulfilled his authority under the Seventeenth Amendment and selected a temporary Senator. Beshear could make that appointment quietly, as soon as a vacancy arises. Before any litigation is filed, the Senator can appear at the Capitol and present his credentials. At that point, I am not certain that a judge, whether federal or state, could undo the appointment. Whether the Senator is recognized would seem to be a political question under Baker v. Carr. The United States Senate could decline to recognize the Senator, perhaps due to the Governor's failure to comply with state law. But the Senators could determine, like Governor Beshear, that the statute itself is unconstitutional. As a matter of real politic, I suspect every Democratic Senator would gladly welcome a Democratic replacement for McConnell.
For the second option, the Governor could sue the executive committee, and argue that the constraint violates the federal and state constitutions. This suit can be brought in federal court or state court. In federal court, at least, such a suit would seem to be not-yet-ripe prior to a vacancy arising. The Governor would probably have to wait until the executive committee provides a list of names. The rules may be different in state court. If the Governor sues in state court, and there is only a claim under the state constitution, I don't think the case could be removed to federal court under the Mottley rule.
There is a third option. Members of the executive committee can go on offense, and seek a declaration that the Governor is bound by the state law before any vacancy arises. Such a suit would not-yet-be-ripe in federal court, but it could work in state court. Again, I don't profess to be an expert on Kentucky procedure. The upshot of this latter approach would be to avoid a stealth selection, which cannot be undone. The downside, of course, is the morbidity of the topic. Senator McConnell is still serving, and it is unsettling to even discuss a potential future vacancy. I know all too well that people were unhappy with a post I wrote about Chief Justice Roberts being unable to preside at President Trump's impeachment. But it is far better to talk about a succession crisis before it happens, not during the process.
I hope this issue remains an academic curiosity.
Short Circuit: A Roundup of Recent Federal Court Decisions
Moot beaches, sparking the French Revolution, and cash-bail advocacy.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
For over 10 years, Louisiana prison officials have held more than a quarter of inmates past their release dates—an extra 525 days in the case of IJ client Percy Taylor. Next month, the Fifth Circuit will consider whether the head of the state's prison system can be held accountable. Click here to read Taylor's brief.
Cato's Green Card Game Dramatizes the Incredible Difficulty of Legal Immigration
The game enables you to develop a would-be immigrant character with a wide range of possible characteristics and see whether you can get him or her admitted into the United States.
In June, I wrote about a Cato Institute study outlining how legal immigration into the United States is nearly impossible for the vast majority of those who want it. Now, Cato has introduced its Green Card Game, which makes this point in a different way, and enables people to interactively explore how the US immigration system works. Cato Institute immigration analyst Alex Nowrasteh explains the game and the rationale for it:
Today the Cato Institute released The Green Card Game, a free online interactive game where players attempt to go through the legal immigration system. Click on the link to play. After you click on the link, you select an avatar, enter a name, and choose your biographical information, which includes your occupation, country of birth, and other characteristics.
You can even ask the game to auto-populate a random biography. The game uses your entered information to create a passport for your character. Then you are ready to start answering questions to attempt to immigrate to the United States legally…..
The Green Card Game is an unusual product for the Cato Institute, but we decided to take a chance and make it for several reasons. First, we hypothesize that many people oppose immigration liberalization because they don't know how complex and restrictive the immigration system is. Many years ago, I spoke to a conservative audience in Arizona about immigration. Afterward, an elderly woman asked, "I understand the benefits of immigration, but why don't the illegals just go to the Post Office to register and become legal? What are they hiding?"
Those questions are reasonable if you know nothing about the legal immigration system. Her question was spurned by ignorance, not by malice. As a result, we've identified ignorance of the actual laws as a significant problem in liberalizing immigration. Just imagine how hard it would be to talk about tax policy with someone who doesn't know that the U.S. has an income tax or even what it is. That's about where we are in terms of the immigration debate. Our game will teach people some of the basic facts so we can then have a better discussion.
Second, gamification can enhance learning. We produce great policy research at Cato, but only some people want to read blog posts, research papers, listen to an event with experts, delve into policy podcasts, or enjoy our other scholarly content. Some people, even members of Congress, want to learn on the go, and a game like this is a great way to learn that the legal immigration system is complex and restrictive….
Alex also gives some useful suggestions on how to play:
There are several ways to play The Green Card Game. For American players, I recommend starting by playing as yourself. Create a character with your age, education level, occupation, income, savings, and family with one critical change: Choose to be from another country. Many of us won the birth lottery by being born in the United States. See if you could have come here legally if you lost that lottery, but all else remained the same.
Another way to play is to enter the name of an ancestor. Pick a relative when they immigrated to the United States and choose their level of education, occupation, and country of origin. If they're from the Austro-Hungarian Empire, you've got a choice of countries. See if your ancestor could come to the United States legally today.
You could also play as a living immigrant family member or friend. Enter their biographical information best as possible and get a sense of what they went through to come here. At a minimum, it will give you a new respect for what they went through to become an American. You could even share the game with them to see if you could conjure any memories in them.
If you already have a strong opinion about immigration policy, try to create an immigrant character whom you think should be admitted or who absolutely should NOT be admitted. See if you can guide this individual through the legal immigration system. Use the result as evidence for whichever position you hold.
Relatedly, recreate the biographies of exceptional immigrant individuals like Andrew Carnegie, Katalin Karikó, Albert Einstein, Geisha Williams, John von Neumann, Qian Xuesen, Oscar de la Renta, or others to see whether they'd be able to immigrate legally. Some of them may be able to. Others wouldn't. You could also choose the "stereotypical" immigrant from your perspective, especially an illegal immigrant, and see if that person can come legally. You'll quickly understand why people pay smugglers to cross deserts instead of wasting their time on a legal system that often prevents them from even applying in the first place.
As noted in my post on the previous Cato study, ignorance of current law is far from the only reason for opposition to immigration. If you're a committed restrictionist on the grounds that immigrants damage the economy, undermine political institutions, or degrade American culture, you might even come away from the game happy to know that immigration is far more difficult than you might have previously thought. Nowrasteh and and I have addressed many of these issues in various books and articles. But they can't be resolved merely by understanding how the current immigration regime works.
But understanding the daunting nature of the legal immigration system does undercut oft-heard arguments that would-be immigrants should just "get in line" or "wait their turn." For many, there is no line available or their "turn" will never come. The earlier Cato study and the Green Card Game also highlight the irrational and inconsistent nature of many immigration rules.
Valuable Mercatus Center Study Surveys Progress and Setbacks in the Struggle Against Exclusionary Zoning
Eli Kahn and Salim Furth provide overview of developments in the states, and lessons that can be learned.
Exclusionary zoning is the most important property rights issue of our time, a stifler of economic growth, and a major obstacle to opportunity for the poor and disadvantaged. While liberals, conservatives and libertarians all have compelling reasons to oppose it, there are also powerful NIMBY factions on both right and left defending it.
Despite daunting political obstacles, zoning reform has made some important progress in recent years. In an important new Mercatus Center study, housing policy experts Eli Kahn and Salim Furth survey the successes and failures of the last year. Here is an excerpt summarizing some of their conclusions:
In an article published six months ago, one of us flagged a "housing revolution brewing" among state legislatures in 2023.1 With over 200 bills related to housing supply introduced so far, there has certainly been no lack of would-be revolutionaries. And in four states—Montana, Rhode Island, Vermont, and Washington—these efforts have clearly succeeded on a large scale. Elsewhere, results have been mixed. High-profile reform efforts sputtered in Arizona, Colorado, and New York. More quietly, significant reforms have been passed in several other states….
With half the year spent, most states have concluded their legislative sessions, allowing us a moment for retrospection. With help from colleagues, we read and tracked about 200 state-level bills that touched on housing supply policies, from accessory dwelling unit (ADU) regulations to minimum lot sizes to permit process streamlining. Our analysis was limited in two notable ways: we did not track bills related to housing finance, such as affordable housing funding and tax policy, and we set aside California entirely…..
While the small size of our dataset makes it hard for us to draw firm conclusions, we have observed a few themes in the data:
- Four states passed ambitious "housing packages," significantly revising (if not fully revolutionizing) their housing supply regimes.
- In three additional states where housing omnibus bills were introduced, the bills faced high-profile public debate and vigorous opposition. In these states, the major package ultimately failed.
- The most common legislative successes were permit streamlining and allowing residential uses in commercial zones.
- Political alignment on housing supply remains chaotic: in different states considering similar legislation, the same party ended up opposing it in one state and supporting it in another. (This can be said of both major parties.)….
Genuine progress on housing supply is happening throughout the country, in states red and blue; urban and rural; northeastern, southern, midwestern, and western. The book isn't closed: some states, most notably California, are just getting into the heart of their legislative season. Others, such as Massachusetts, hold two-year legislative sessions and may act later on ambitious bills. In a year marked by well-known disappointments in Colorado and New York, it's worth emphasizing how much more was politically possible this year than in previous years. In the recent past,California and Oregon have arguably been alone in enacting sweeping statewide zoning reforms; four more states joined them in just the first half of 2023. Many other states passed narrower housing supply reforms. Even in states that experienced high-profile failures, the issue of housing supply has become an ongoing priority.
In assessing the causes of success and failure, Kahn and Furth emphasize a number of factors, most notably the need for bipartisan support, which was crucial to this year's most striking YIMBY ("yes in my backyard") victory, the new reforms enacted in Montana. Faced with unified opposition by the out party, the majority often has difficulty overcoming its on NIMBY faction, even if the latter is a relatively small minority within the party. As the authors describe, unified Republican opposition in Colorado played a key role defeating reforms in that Democratic-controlled state, and unified Democratic opposition helped achieve a similar result in GOP-ruled Texas. Only in Rhode Island (where the minority Republican Party is incredibly weak) did a majority party manage to pass major reforms despite unified opposition from the minority.
Overall, I am impressed that zoning reform has made as much progress as it has, given the forces arrayed against it, including widespread public ignorance about the basic economics of housing.
The Mercatus Center study won't be the last word on the zoning reform movement. Among other things, we need more systematic analysis of how public and elite opinion interact in various states to further or stifle YIMBY policies. In addition, the political struggle over these issues is far from over. States that narrowly failed to pass reforms this year might reconsider in the future, as California did after some initial failures there. But Kahn and Furth have produced a valuable and insightful overview of recent developments. And their emphasis on bipartisanship is a particularly useful lesson.
Today in Supreme Court History: August 4, 1961
8/4/1961: President Barack Obama's birthday. He would appoint two Justices to the Supreme Court: Sonia Sotomayor and Elena Kagan.
Ninth Circuit Stays Ruling Against Biden Asylum Restrictions
The 2-1 ruling (divided along surprising ideological lines) is a win for the administration. But they may well still end up losing in the end.
Yesterday, the US Court of Appeals for the Ninth Circuit stayed a district court ruling against a Biden administration policy severely restricting asylum applications by migrants crossing the southern border. The decision is a notable victory for the administration. But it is still only a stay pending appeal, and the government might still end up losing the case on the merits.
The most unusual aspect of the ruling is the alignment of votes. Two liberal judges - Fletcher and Paez - voted to stay the ruling. By contrast, conservative Trump appointee Judge Lawrence VanDyke dissented, arguing that the Biden rule is similar to Trump-era asylum restrictions struck down by the Ninth Circuit, and therefore there is no reason to stay the district court ruling against them.
The majority offered no explanation of its ruling beyond saying that "[t]he motion to stay the district court's July 25, 2023, order and judgment…. is granted" and citing a Supreme Court case outlining standards for stays pending appeal. But Judge VanDyke wrote a forceful dissent:
My colleagues in today's majority grant a stay pending appeal of a district judge's order vacating a recently promulgated immigration rule. Only a few years ago, these same colleagues affirmed the same district judge enjoining the Trump administration's rule restricting asylum eligibility for immigrants who entered the United States outside a designated port of entry (the Port of Entry Rule)….
Quickly thereafter, one of my colleagues in today's majority penned another published, precedential decision again affirming a Judge Tigar decision striking the Trump administration's rule restricting asylum eligibility for aliens who passed through another country on the way to the United States without seeking asylum in that country (the Transit Rule)….
The Biden administration's "Pathways Rule" before us in this appeal is not meaningfully different from the prior administration's rules that were backhanded by my two colleagues. This new rule looks like the Trump administration's Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app. Relying on this court's rationales in our prior decisions rejecting the Trump administration's rules, Judge Tigar concluded that this new rule is indistinguishable from those rules in any way that matters. He's right. For those who value the rule of law, following precedent, and predictability, one must conclude Judge Tigar had no choice but to vacate the current administration's Pathways Rule for the reasons that he first provided and my colleagues then established as binding precedent during the Trump Administration.
Judge VanDyke goes on to say he believes the Ninth Circuit was wrong to rule against the previous Trump policies. But so long as those precedents are on the books, the court must also rule against this very similar Biden policy.
Judge VanDyke is right to highlight the similarity between the two administration's rules. Although the Biden rule is somewhat less restrictive than the Trump rules were (a point VanDyke should have acknowledged), ultimately both run afoul of the text of the 1980 Refugee Act in much the same way. Judge Tigar's district court opinion goes into these similarities in detail.
On the other hand, I think VanDyke is wrong to think the rulings against the Trump policies were incorrect. It's worth noting that one of the key Ninth Circuit decisions against them was written by prominent conservative Judge Jay Bybee. Like Judge Tigar (a Democratic appointee), Bybee noted the incompatibility between these kinds of draconian asylum restrictions and statutory text. That said, Judge VanDyke deserves credit for fairly applying precedents he obviously dislikes. He notes he would "love to join my two colleagues in staying Judge Tigar's ruling," but cannot do so, given the Trump-era precedent.
The key question going forward is whether the majority's decision here prefigures their ruling on the merits. The criteria for a stay pending appeal are vague: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."
The fact that one of them is whether the applicant has "made a strong showing that he is likely to succeed on the merits" suggests the majority judges believe the Biden rule is legal. However, it's also possible they believe a relatively weak showing on this factor was outweighed by a strong one on the other three, particularly the "irreparable injury" prong (this policy is a key component of the Biden Administration's new border control strategy).
Moreover, in the same ruling the majority also put the case on an expedited briefing schedule. That means a decision will come relatively quickly, and therefore asylum seekers might (in the court's estimation) suffer relatively little "substantial injury" because they won't have to wait long.
On the whole, I think there is still a good chance that at least one of the liberal judges will side with the plaintiffs (and with Judge VanDyke, whose dissent telegraphs his position) when the case is heard on the merits. Ultimately, it's just too difficult to differentiate the Biden policy from the Trump rules those same judges voted to strike down.
I think the liberal judges on the panel will see that, or at least one will. Could I be wrong about that? Of course. We are likely to find out soon enough.
College Ban on "Inappropriate or Offense Language or Themes" in Bulletin Board Postings Struck Down
The case involved Young Americans for Freedom postings about "Leftist Ideas" and about abortion.
From Flores v. Bennett, decided today by Ninth Circuit Judges Kim McLane Wardlaw and Milan Smith, and District Judge Douglas L. Rayes (D. Ariz.), apropos a case I blogged about last year:
Defendants … appeal a district court order enjoining [Clovis Community College's] "Flyer Policy" that prohibited "inappropriate or offense [sic] language or themes" in postings on interior bulletin boards. [The policy was challenged by three] then-Clovis students …, as well as the Young Americans for Freedom ("YAF") student chapter at Clovis ….
The district court did not abuse its discretion when it concluded that Plaintiffs were likely to succeed on the merits of their claim that the "inappropriate or offense language or themes" provision was facially overbroad. To prevail on an overbreadth challenge, a party must demonstrate that the policy "'prohibits a substantial amount of protected speech' relative to its 'plainly legitimate sweep,'" such that "society's interest in free expression outweighs its interest in the statute's lawful application." United States v. Hansen (2023).
As the district court concluded, "a prohibition on 'inappropriate or offense language or themes' does not have a core of readily identifiable, constitutionally proscribable speech." The Supreme Court has consistently held that "[s]peech may not be banned on the ground that it expresses ideas that offend," Matal v. Tam, 582 U.S. 218, 223 (2017), including in the university context. See, e.g., Papish v. Bd. of Curators of Univ. of Missouri (1973) (holding that a graduate student could not be expelled for publishing an obscene cartoon).
Federal Judge Warns Lawyers About Using ChatGPT, But Doesn't Prohibit Such Use
From the standing orders of Judge Arun Subramanian (S.D.N.Y):
F. Use of ChatGPT and Other Tools. Counsel is responsible for providing the Court with complete and accurate representations of the record, the procedural history of the case, and any cited legal authorities. Use of ChatGPT or other such tools is not prohibited, but counsel must at all times personally confirm for themselves the accuracy of any research conducted by these means. At all times, counsel—and specifically designated Lead Trial Counsel—bears responsibility for any filings made by the party that counsel represents.
For more on such matters, see these posts. Thanks to Jake Karr for the pointer.
"Providing Information About or Referring Patients to Legal Out-of-State Abortion Services" Is Protected …
by the First Amendment, even if the abortion would be illegal in the state, holds a federal judge in Idaho.
From Planned Parenthood Greater Northwest v. Labrador, decided Monday by Judge B. Lynn Winmill (D. Idaho) (and already appealed):
This case involves a challenge to Attorney General Raúl Labrador's interpretation of Idaho's criminal abortion statute, Idaho Code § 18-622. Earlier this year, Attorney General Labrador drafted a letter interpreting this sentence of Section 18-622: "The professional license of any health care professional who … assists in performing or attempting to perform an abortion … shall be suspended …." That letter interprets the "assisting" language to include providing information about or referring patients to legal out-of-state abortion services….
Interestingly, the State did not engage [plaintiffs' First Amendment] argument in any way, relying instead entirely on its jurisdictional challenges [which the court rejected -EV]…. [T]he Court finds that the Medical Providers are likely to succeed on their First Amendment cause of action.
Scholar of Dishonesty Accused of Research Dishonesty Sues for Libel, Claiming Accusers Were Dishonest
Prof. Francesca Gino, a celebrated scholar studying dishonesty, was recently put on unpaid leave by Harvard, based on allegations that she had fabricated data in her studies; the allegations had been raised and discussed by three professors who run Data Colada (Uri Simonsohn of ESADE Business School in Barcelona, Leif Nelson of the University of California, Berkeley, and Joseph Simmons of the University of Pennsylvania). Yesterday, in Gino v. Harvard Univ., Gino sued Harvard for employment law violations (basically, discrimination and breach of contract) and both Harvard and Data Colada for libel. The complaint is long, and I won't try to summarize it in any more detail here; but those interested in the controversy (or in such controversies generally) may want to read it, of course recognizing that it's just Gino's side of the story. I expect to write more about this as the defendants raise their objections, likely in motions to dismiss.
Thursday Open Thread
What's on your mind?
Expert Witness Redux in California
State tries to bar Stanford researchers from testifying against it
An interesting new expert witness controversy has broken out; this time in California. You will recall the Florida fiasco recounted here and here and here.
A group of parents are suing the state over the learning losses that that the state's pandemic response imposed on children. Plaintiff attorneys recruited expert witnesses from Stanford University to support their case. The California education department claims that the researchers signed an agreement to not testify against the state as a condition of accessing the state's data on k-12 schools during the pandemic. The prohibition, the state argues, extends to any testimony against the state, even when that testimony does not rely on the state's own data.
From the state's letter to one of the researchers:
This letter is to remind you of your obligations as the CDE's authorized representative performing research for and on behalf of the CDE. As CDE's authorized representative, in both paragraph 16 of the Agreement and paragraph 6 of the confidentiality provisions in Exhibit D, you agreed that you would not "testify, advise or consult" for any party other than the CDE or the State Board of Education. This prohibits any work for Plaintiffs in Cayla J.
The ACLU is now involved, arguing that any such provision in the data access agreement would amount to an unconstitutional condition.
From the ACLU letter to the California Department of Education:
The contract condition at issue is viewpoint discriminatory. LPI's contract with CDE specifies that, for the duration of the agreement, "LPI's employees, executives, and other representatives shall not voluntarily testify for, consult with, or advise a party in conjunction with any mediation, arbitration, litigation, or other similar proceeding" where the LPI-associated individual "knows that the party is adverse to CDE, the State Superintendent of Public Instruction or the State Board of Education." There is no similar restriction on an LPI-associated individual's ability to testify, advise, or consult in a proceeding on behalf of CDE. Indeed, the contract clearly permits testifying as an expert for the CDE or other state agencies. CDE may only terminate the contract and impose penalties if a contractor testifies for or advises parties who hold interests adverse to it or other listed state educational entities.
Therefore, the provisions keep out of court, mediation, arbitration, or other similar proceedings viewpoints and opinions that might harm CDE's and other state government entities' interests in litigation, while allowing viewpoints and opinions that would serve the government's interests and positions. Moreover, by preventing individuals associated with LPI from even advising or consulting with a party adverse to the government in the listed circumstances, these provisions hamper the ability of the adverse party to assess information, data, or research on its own. Therefore, the provisions do what the Court in R.A.V. expressly prohibited by "proscribing only [speech] critical of the government." R.A.V., supra, 505 U.S. at 384.1
If the government were to try to institute this restriction on its own, outside of the context of a contract, it would be clear unconstitutional viewpoint discrimination. It may not achieve the same result by conditioning a benefit on a provision that has the effect of preventing experts from testifying against the state. See Perry, 408 U.S. at 597.
