Joan Biskupic was a guest on Jeff Rosen's podcast for the National Constitution Center. I transcribed it for everyone who could not commit an entire hour of their time. A few things to highlight.
First, Rosen said that after Bush v. Gore was decided, Justice Ginsburg called him, and said that Justice Kennedy wrote the per curiam opinion (4:37). Rosen was not troubled about this leak at all. The identity of a PC opinion should remain anonymous, and the Court should not disclose confidential information. But RBG proactively volunteered this information.
If I may flash back a moment to the Obamacare litigation. Some conservatives alleged that Rosen may have had a leak of information, and was using that information to influence Chief Justice Roberts. Rosen assured me in an interview for Unprecedented that he did not have any inside information about the case. At least following Bush v. Gore, Rosen got a private phone call from a Justice to divulge personal information. Moreover, Biskupic didn't even note this fact was out-of-the-ordinary. I cannot repeat enough that after Ginsburg's passing, Biskupic's inside information seems to have dried up.
Second, Biskupic said that the Wall Street Journal "has been the beneficiary of personal leaks from various justices" (34:19). She added that the Journal has taken advantage of that "access" in writing their editorials. She added, that "there is a very close connection between certain justices on the court, and the Wall Street Journal editorial page and through some intermediaries too." Biskupic referenced the WSJ editorial which claimed that the Chief was trying to flip Justice Kavanaugh in Dobbs. I was the first person to make this claim publicly. Biskupic also took that editorial "very seriously" because she knew "about the Journal's pipeline to the Court." On further questioning from Rosen, Biskupic said "Oh yes," a Justice leaked to the WSJ about Roberts's efforts (37:06). But Biskupic stressed that she did not think a Justice did not leak the actual opinion to the Journal (38:20). Indeed, she stated that she did not think it was a Justice's spouse (I wonder which one?) or a clerk.
Third, Biskupic revealed that she knew the Dobbs vote at conference (35:20). Specifically, "I had known what the vote had been." She added that Alito had five votes at conference, which I don't think she has publicly stated. Biskupic then explained that before the WSJ editorial, "I wasn't going to report on any of this because my usual M.O. is to reconstruct a case after we know what happened, because I know how much can change in June, at the very end." (I long suspect that Biskupic received information during the term, on the condition that she not disclose that information till the opinion was rendered.) But after the WSJ editorial, Biskupic considered writing about the Chief's efforts to pick off Kavanaugh or Barrett. Ultimately, she did not write on the issue, and the Politico story came out. Biskupic added, based on her "own reporting," that the "Chief continued to try to broker some deal at the middle." But the leak made the "Chief's efforts all but impossible."
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: IJ attorney and special guest host Josh Windham interviews Anthony Sanders, your regular host, about his smashing new book Baby Ninth Amendments.
And less new but still pretty new on the Short Circuit podcast: a special episode on the unwritten UK Constitution with two sceptical scholars from across the pond.
From Wednesday's decision [UPDATE: link added] by New York trial court judge Robert R. Reed; (for a similar case from the California courts, though not involving the Trumps, see here):
In this lawsuit, Donald J. Trump …, a former president of the United States, asserts various claims against his niece, Mary L. Trump …, The New York Times Company d/b/a The New York Times … [and] journalists Susanne Craig …, David Barstow … and Russell Buettner …, for their actions related to the publishing of The Times' 2018 article, "Trump Engaged in Suspect Tax Schemes as He Reaped Riches from His Father." …
The crux of plaintiff's claim is that a reporter for The Times caused his niece, Mary Trump, to take 20-year-old tax and financial documents held by her lawyer and disclose them in violation of a 2001 settlement agreement. The Times, it is alleged, then used those documents to publish a lengthy article in 2018 that reported that plaintiff had allegedly participated in dubious tax and other financial schemes during the 1990s. In this action, plaintiff does not specifically dispute the truth of any statements made in the article. Rather, plaintiff alleges that The Times defendants' interaction with Mary Trump resulted in her breach of certain confidentiality provisions of the 2001 settlement agreement, rendering The Times and its journalists liable for tortious interference with contract, aiding and abetting tortious interference with contract, unjust enrichment, and/or negligent supervision. Plaintiff demands $100 million in damages.
Plaintiff's claims against The Times defendants, as an initial matter, fail as a matter of constitutional law. Courts have long recognized that reporters are entitled to engage in legal and ordinary newsgathering activities without fear of tort liability—as these actions are at the very core of protected First Amendment activity.
Plaintiff's claims also fall short inasmuch as they fail to assert the necessary elements of tortious interference, unjust enrichment, and negligent supervision. More particularly, plaintiff's tortious interference claim is dismissed because The Times' purpose in reporting on a story of high public interest constitutes justification as a matter of law. Plaintiff's unjust enrichment claim fails because it is duplicative of his other claims. His claim for negligent supervision, moreover, is dismissed due to the lack of any allegations that The Times reporters committed any wrongful act falling outside of the scope of their normal work duties. Finally, the newly amended anti-SLAPP law mandates that plaintiff pay defendants' attorneys' fees and costs because plaintiff's claims plainly constitute a strategic lawsuit against public participation, and, contrary to plaintiff's argument, New York's anti-SLAPP law is directed to more than just defamation-based lawsuits.
From Wednesday's opinion in State v. Howard, by Judge Robyn Aoyagi:
In March 2019, N died of an accidental drug overdose in the bedroom of her apartment. At the time of her death, N was dating defendant, and he was living in the apartment. Another woman, S, was also staying there temporarily. Defendant became sexually involved with S before N's death.
One morning, defendant discovered that N had died. Her body was on the bedroom floor between the bed and the wall. There is no contention that defendant played any role in N's death or that he moved her body.
Defendant concealed N's body, however, to delay the discovery of her death. He piled a large quantity of clothing on top of and around the body and placed four empty storage totes upside down on top of the clothing. He then rotated the bed's queensized mattress 90 degrees relative to the box spring, so that one end was lying atop the storage totes and somewhat raised.
When N's family was unable to reach her for two days, a group of relatives and friends came to the apartment to confront defendant as to N's whereabouts. That led to the police searching the apartment and finding N's body. The police had to move the mattress, the storage totes, and the clothing to find N's body.
During a police interview, defendant admitted that he found N dead and concealed her body. He also admitted to having sex with S on the bed after N's death. Defendant was charged with two counts of second-degree abuse of corpse, ORS 166.085 ….
Lawfare has published an op-ed on this topic by Rick Salgado and me. The gist is that the government has been adapting FISA section 702 to thwart cyberspies and ransomware gangs. We argue that this gives CISOs a stake in the debate over renewing 702:
For Section 702 to be an effective weapon against cyberattacks, CISOs must become informed participants in the debate. If you are one of the many CISOs who think the government should do more to thwart attacks on your networks, your voice in defense of 702 is critical. But you should also hold the government's feet to the fire to make 702's potential real, through effective real-time threat sharing.
Perhaps the easiest way for corporate CISOs to get started is by educating company government affairs staff. Once you've explained what Section 702 could do to protect the company—especially if the government adopts measures to quickly share information with CISOs—you just need to ask that the company's public stance on Section 702 take into account the big contribution the law could make toward protecting the company's own networks.
5/5/1992: The 27th Amendment is ratified. It was initially proposed in 1789.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
In my last post, I outlined some things I hoped to learn from Justice John Paul Stevens' papers about Kelo v. City of New London, the controversial 5-4 decision in which the Supreme Court ruled that the condemnation of homes for "private economic development" is permissible under the Takings Clause of the Fifth Amendment (which only allows takings that are for a "public use"). Stevens wrote the majority opinion. Kelo was an important decision that drew a massive political backlash (over 80% of the public opposed the ruling, and 45 states enacted eminent domain reform laws in reaction to it) and remains contentious to this day.
There are two big revelations. First, there was no vote switch. Five justices intended to uphold the takings from the beginning of the Court's deliberations. However, Stevens did apparently worry that he might lose the support of key swing voter Justice Anthony Kennedy. Second, Justice Antonin Scalia wrote a draft dissent [Update: I have put up Justice Scalia's draft dissent in a separate post, along with my comments on it], which he eventually chose not to publish (though he did join Sandra Day O'Connor's dissenting opinion).
Here is what I have learned about the answers to the five questions outlined in my previous post, plus a few additional revelations:
1. Was there a chance the case could have gone the other way? Did Justice Kennedy flip?
The evidence indicates that five justices, including Justice Kennedy, wanted to uphold the New London condemnations all along. However, Stevens seems to have been concerned that Kennedy might defect. At one point, he sent an e-mail to Roberto Gonzalez, his law clerk working on the Kelo case, saying that "I don't think we need to reply [to Justice Scalia's draft dissent] - of course we do need five votes, but I don't think this reference to Lawrence [v. Texas] is likely to be persuasive to AMK [Justice Kennedy]." This implies that Stevens was on guard about a potential switch by Kennedy, but thought that Scalia's draft dissent was unlikely to sway Kennedy into the dissenters' camp. Yet he also may have worried that some other argument might indeed be "persuasive to AMK."
Kennedy did not agree to join what became Stevens' majority opinion until just a few days before the Court's decision was issued on June 23, 2005. On June 16-17, Kennedy asked Stevens to make a number of changes to the majority draft, in exchange for his support, and Stevens agreed. Kennedy then finally agreed to join, but also authored a solo concurring opinion, which has confused takings lawyers and lower court judges ever since.
I won't go over them in detail here. But, in my view, the changes Kennedy requested mostly concern minor issues, and did little to change the bottom-line reasoning and effect of the Kelo decision. The admittedly limited available evidence suggests Stevens worried about the possibility of Kennedy flipping, but the risk probably wasn't all that high. We may never know for sure how great it actually was, at least not unless Justice Kennedy reveals his papers someday.
2. Why did Justice Sandra Day O'Connor, author of the lead dissenting opinion in Kelo, change her mind about "public use" between 1984 and 2005?
As discussed in my previous post, O'Connor endorsed a very broad view of public use in her opinion for the Court in Hawaii Housing Authority v. Midkiff (1984), but switched to a much narrower view in her influential lead dissent in Kelo, which garnered the support of four justices. Sadly, the Stevens papers shed no light on this important issue. We may know more when and if Justice O'Connor (who retired in 2005), releases her own papers.
3. Did any of the justices anticipate the massive political reaction against Kelo? Did it influence the decision in any way?
The files don't reveal any anticipation of the reaction Kelo would generate, on the part of any of the justices. That doesn't prove none of them foresaw it. But, if so, it isn't reflected in their communications with Stevens. I think some significant negative reaction was foreseeable based on the extensive media and public attention the case attracted even before the Court issued its ruling. But the justices may have been oblivious to this, or at least underestimated the extent of public anger.
As already noted, the Stevens papers reveal that Scalia authored a solo dissent of his own, that he ultimately chose not to publish. I will say more about it in a future post. Here, I will only note that the Scalia dissent says almost nothing about the text and original meaning of the Takings Clause, and therefore doesn't tell us anything about why he chose not to join Thomas. Nor is there anything else in the Stevens papers that bears on this question. Scalia did join Justice O'Connor's mostly non-originalist dissent.
In my view, outlined in my book about Kelo, the Thomas dissent is the best of the four opinions in the case. Scalia apparently had a different view. But we still don't know why.
5. Does anything in the Stevens files strengthen or weaken the case for overruling Kelo?
Kelo remains a highly controversial decision, and four current Supreme Court justices have expressed interest in overruling or at least revisiting it (I hope they do!). I don't think anything in the Stevens papers is likely to persuade many people to change their minds about the case. Certainly, there's nothing there as dramatic as Stevens' earlier public admissions that he made a "somewhat embarrassing to acknowledge error" in his interpretation of precedent in his majority opinion.
However, it's worth noting that Stevens' claim that the majority's broad view of public use is backed by "more than a century" of precedent figures prominently in all of his draft opinions contained in the files, and may have played an important rule in persuading other justices. This, of course, is the very thing Stevens later admitted he got badly wrong.
In a May 13, 2005 note conveying her decision to join Stevens, Justice Ruth Bader Ginsburg praised the draft opinion for being "as clear and fair as can be in conveying our precedent and where it leads in this case." Would she and others have been so quick to join Stevens' opinion if they knew its analysis of precedent was based on an "embarrassing to acknowledge error"? Impossible to know for sure. But there is at least room for doubt on that score. And it would only have taken one defection to shift the outcome in the case.
In addition to providing insights on two or three of the questions I raised in my earlier post, the Stevens papers also include a few other interesting revelations about the case:
6. "A fine teaching opinion."
In the same note where she praised Justice Stevens' draft for its analysis of precedent, Justice Ginsburg also called it a "fine teaching opinion." And so it was! But not in the way Ginsburg had in mind. Stevens' ruling had the effect of awakening public opinion to the reality that Supreme Court precedent allowed government to condemn private property for almost any reason it wants. That generated the broadest political backlash against any modern Supreme Court opinion. In his 2019 memoir, Stevens called it "the most unpopular opinion that I wrote during my more than thirty-four years on the Supreme Court. Indeed, I think it is the most unpopular opinion that any member of the Court wrote during that period."
In combination with O'Connor's and Thomas' dissents, the Stevens opinion also helped awaken elite legal opinion to some of the serious flaws in the broad view of "public use" and thereby broke the seeming expert consensus on that question.
7. Stevens probably knew the New London redevelopment plan was likely to fail.
The justification for the Kelo condemnations was the need to promote "economic development" in New London, Connecticut by transferring the condemned property to a private developer who would supposedly put it to more productive use. In his opinion for the Court, Stevens highlights New London's "carefully considered development plan" and distinguishes this from cases where there is no such plan, and therefore stronger suspicion that the condemnation was undertaken purely to benefit a private party.
In reality, Stevens had good reason to question whether there really was any "carefully considered" plan. The files contain a memo from Stevens' law clerk Roberto Gonzales, in which he includes several media articles documenting the flaws of the redevelopment plan. "Overall," writes Gonzales, "they present a pretty dim picture of the prospects of the plan," though he also notes that the "'facts'" in the articles "are certainly not before us in this case." This adds to the extensive evidence of the plan's flaws that was in the official record before the Court - including that the trial court had invalidated 11 of the 15 condemnations precisely because the City had no clear plan for how to use the land it was trying to take.
I don't think this fact by itself proves Stevens got the decision wrong. If you combine a broad definition of "public use" with an ultradeferential approach to government planners' judgment, then it can still make sense to uphold the New London takings. Nonetheless, given what he knew, Stevens should at least not have relied so heavily on the planning process in justifying his decision.
8. Seven of nine justices wanted to hear the case.
Most experts - myself included - were surprised that the Court decided to hear the Kelo case. The conventional wisdom was that the Court had already definitively endorsed a broad definition of public use in Berman v. Parker(1954) and Hawaii Housing Authority v. Midkiff (1984), and therefore there would be little interest in revisiting the issue. I think Berman was a terrible decision - worse than Kelo. But I too recognize that it endorsed an extremely broad view of public use, even broader than that Stevens ultimately endorsed in his majority opinion. Stevens was wrong to claim his position was backed by "more than a century" of precedent, but right to believe it was supported by Berman and Midkiff.
The Stevens papers suggest the justices may have seen the precedent as less definitive than most outside experts did. They reveal that seven of the nine justices (all but Ginsburg and David Souter) voted to hear the case. Supreme Court rules only require the agreement of four justices to grant a petition for certiorari.
The files also include a September 27, 2004 memo written by Stevens clerk Melissa Beth Arbus, in which she evaluated whether the Court should take the case. Stevens was the one justice, at the time, who did not participate in the "cert pool" in which clerks for the other justices divided up petitions for certiorari and made common recommendations to the Court on whether to grant them. The Kelo cert pool memo isn't in the file, probably because Stevens didn't participate in the pool.
Arbus wrote that Kelo would be a good vehicle for "elaborating or clarifying 'public use' doctrine" and that the justices could potentially vote to strike down the New London takings without overruling Berman and Midkiff, because "neither case directly addressed the particular public purpose at issue here - economic development in a non-blighted area." This distinction, of course, foreshadows the very similar one made in Justice O'Connor's dissenting opinion.
There are also some less significant revelations that I will not cover in this already long post. But I may include them in a future academic article.
In sum, despite the absence of truly earth-shattering revelations, the Stevens papers deepen our knowledge of the case in several ways. I will consider Justice Scalia's draft dissent in a follow-up post. Stay tuned!
UPDATE: My post on Scalia's dissent is now available here.
UPDATE 2: The condemned property was recently sold to a developer and there may soon finally be some new construction there, eighteen years after the Supreme Court's decision.
Another day, another report on Justice Thomas. Today, ProPublica revealed that Harlan Crow paid the private-school tuition of Mark Martin, Justice Thomas's grand-nephew. And Thomas failed to disclose those payments. 5 U.S.C. § 13101(2) only requires disclosures for a gift to a "son, daughter, stepson or stepdaughter." Justice Thomas was not required to disclose any gifts concerning his grand nephew--even assuming the payments were gifts. ProPublica acknowledges this statute halfway through the story:
Justices also must report many gifts to their spouses and dependent children. The law's definition of dependent child is narrow, however, and likely would not apply to Martin since Thomas was his legal guardian, not his parent. The best case for not disclosing Crow's tuition payments would be to argue the gifts were to Martin, not Thomas, experts said.
But then ProPublica turns to the regular stable of experts. They say that in fact, these tuition payments were actually gifts to Thomas personally, which he had to disclose. And even if Thomas followed the statute, and was not required to disclose the payments, more disclosure is better.
Mark Paoletta, a close confidant of the Thomases, provides the background of the tuition payments:
Harlan Crow's tuition payments made directly to these schools on behalf of Justice Thomas's great nephew did not constitute a reportable gift. Justice Thomas was not required to disclose the tuition payments made directly to Randolph Macon and the Georgia school on behalf of his great nephew because the definition of a "dependent child" under the Ethics in Government Act (5 U.S.C. 13101 (2)) does not include a "great nephew." It is limited to a "son, daughter, stepson or stepdaughter." Justice Thomas never asked Harlan Crow to pay for his great nephew's tuition. And neither Harlan Crow, nor his company, had any business before the Supreme Court.
Still, it seems that in 2002, Thomas disclosed a gift of $5,000 that was used to defray Martin's education. That money was placed in a trust for Martin's benefit. And there is some other evidence that Thomas is inconsistent with regard to his disclosures. For example, Thomas initially disclosed some travel with Crow, but stopped after the Los Angeles Times reported on it.
I think we can draw a general sense of how Justice Thomas approaches ethics rules: Justice Thomas discloses what he is required to disclose, but declines to disclose optional information that would allow critics to attack him, his family, and his friends. Thomas's apparent goal is not to shield any actual or apparent conflicts of interest. Despite the media's best efforts, there have been no reports that Crow transacted actual business before the Supreme Court. His goal seems to be to protect his privacy from critics that have been trying to destroy him for more three decades.
Consider Justice Thomas's concurrences from Citizens United and Doe v. Reed in this light. He intrinsically views disclosure laws as difficult to justify--whatever benefit disclosure provides are vastly outweighed by the intrusion into people's private spheres. In both cases, Thomas focused on the attempts to expose those who supported Prop 8 (the term "dox" did not exist at the time). In Thomas's view, disclosure enables retaliation for constitutionally-protected activity. He wrote in Citizens United:
Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.
And in Doe v. Reed:
So too does the strength of a signer's First Amendment interest. The First Amendment rights at issue here are associational rights, and a long, unbroken line of this Court's precedents holds that privacy of association is protected under the First Amendment. The loss of associational privacy that comes with disclosing referendum petitions to the general public under the PRA constitutes the same harm as to each signer of each referendum, regardless of the topic
I suspect Thomas believes these principles, quite personally, and they affect how he chooses to complete his disclosure forms. Every disclosure Thomas makes about Crow, and others, will invariably lead to more attacks on Thomas, and those friends. Thomas has no interest in going above-and-beyond to give his critics further ammunition. Thomas hews to the letter of the law, but does not provide more.
In Civil Procedure, law students learn about 28 U.S.C. § 1441. This statute (generally) allows a defendant to remove a case filed in state court to federal court if there is complete diversity of citizenship or if there is a federal question on the face of the complaint. If the federal court finds that federal jurisdiction is lacking, the case is "remanded" back to state court. Critically, that order cannot be appealed to the federal circuit court.
But there is another path to remove a case to federal court: 28 U.S.C. 1442. This statute permits removal of a case involving a federal officer from state court to federal court:
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1)The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
The statute also permits removal of cases involving federal property. (I invoked this other ground during the 3D-printed gun litigation to remove a case from New Jersey chancery court to federal district court; the case ultimately fizzled out.)
Section 1442 is rarely invoked today, but there is an important upside: any remand order can be appealed to the federal circuit court of appeals. (This path for appeal figured prominently in our decision to invoke Section 1442). Section 1447(d) provides:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.
This CivPro backgrounder brings us to the news of the day. President Trump will try to remove his New York criminal prosecution to federal district court. As best as I can tell, this argument was first raised by David Rivkin and Kristin Shapiro in the Wall Street Journal. They wrote that Trump should remove the case. And once removed, Trump could invoked what is known as Supremacy Clause immunity. That doctrine, which flows from McCulloch v. Maryland, holds that states cannot prosecute a federal officer for engaging in some federal function. That landmark case arose from a criminal prosecution of a federal bank employee named McCulloch. Supremacy Clause immunity was also invoked in In Re Neagle. A marshal protecting Justice Steven Field killed a man in defense of the justice. California tried to prosecute the marshal for murder. The Supreme Court held that the prosecution was preempted by Supremacy Clause immunity.
At present, Trump does not hold any federal position. Still, Rivkin and Shapiro explain that Trump would still be entitled to Supremacy Clause immunity.
To be sure, the case against Mr. Trump involves conduct that wasn't "warranted by the federal authority" he possessed. But there is a strong argument that Supremacy Clause immunity should extend to any state criminal prosecutions of federal officers undertaken because of their federal service, even if the charged conduct is unrelated to their federal duties. Permitting states to burden former federal officers on account of their federal services offends the Supremacy Clause's core principles and makes it easy for aggressive state prosecutors to circumvent. As the Supreme Court warned in Neagle, "unfriendly" states could administer the law "in such a manner as to paralyze the operations of the government." That threat exists anytime former or current federal officers are targeted for criminal prosecution because of their federal service. A president or other official can't lead effectively under constant threat of retaliatory prosecution. . . .
An inquiry into whether a state criminal prosecution was undertaken because of the defendant's federal service would involve judicially manageable questions such as whether a reasonable prosecutor would bring the charges and whether there are indicia of political retribution. Mr. Trump has a strong argument here. Does anyone believe he'd be prosecuted for anything having to do with Stormy Daniels if he hadn't become president?
Does this argument work? I have no idea. I recently reviewed a paper about federal-officer removal and Supremacy Clause immunity. I came away with the understanding that this topic is poorly-defined. But let's assume that Rivkin and Shapiro are correct about Supremacy Clause immunity. There is still the threshold question of whether the case can be removed in the first place. Rivkin and Shapiro provide a response:
Federal officers, including former officers, have a statutory right to remove state civil or criminal cases against them "for or relating to any act under color of such office" to federal court (emphasis added). The U.S. Supreme Court has interpreted this language broadly, explaining in Willingham v. Morgan (1969) that "the test for removal should be broader, not narrower, than the test for official immunity" because the purpose of the statute "is to have the validity of the defense of official immunity tried in a federal court."
There is a colorable argument that removal is proper, depending how broadly the phrase "relating to" is read. I think in any case in which Supremacy Clause immunity is valid, then there should be federal officer removal. As far as I know, the Mottley rule does not apply to Section 1442. Stated differently, where federal officer removal is valid, then there would necessarily be Supremacy Clause immunity. These doctrines are like two sides of the same coin.
Going forward, there will be two tracks of litigation. Unless a stay is granted, removal does not halt the state-court proceedings. The criminal trial will go forward, even as the federal removal case is litigated, and appealed. But there is a risk. If a federal court finds that Trump is entitled to Supremacy Clause immunity, then the prosecution may be void.
There is another wrinkle. Noting would prevent Trump from raising Supremacy Clause immunity in state court as well. That creates yet another risk for a conflict, in which a state court denies immunity, but a federal court grants immunity. These dynamics present almost the opposite of Younger immunity--the federal court would be required to halt the state court proceeding. This case very well may go to the Supreme Court.
Once again, Trump will make obscure doctrines of constitutional law great again.
Update: I mistakenly relied on the New York Times, which suggested that the state court proceedings would continue after the case is removed.
But even if the judge finds the request worthy of consideration and orders a hearing, the state case will continue unhindered for now.
A reader flagged a Fourth Circuit decision, which explains that state-court proceedings are put on pause while federal proceedings are litigated:
Ackerman v. ExxonMobil Corp., 734 F.3d 237, 249–50 (4th Cir. 2013) ("Because § 1446(d) explicitly states that "the State court shall proceed no further" once removal is effected, 28 U.S.C. § 1446(d), we agree with the Defendants that the statute deprives the state court of further jurisdiction over the removed case and that any post-removal actions taken by the state court in the removed case action are void ab initio.").
So there would not be two tracks of litigation.
Update #2: My update above was mistaken. Under Section 1446(d), for removal in civil cases, state court proceedings must halt.
Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
But under Section 1455(b)(3), criminal proceedings can proceed up to the point of conviction.
(3)The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded.
The Times was correct. We would have two tracks of litigation.
Update 3: As I understand the statute, the government could prosecute Trump all the way up to jury deliberations, but the court could not enter a judgment of guilt. In other words, a jury could find Trump guilty, but the state court could not do anything with that finding. At that point, does jeopardy attach? What happens if a federal court deems removal appropriate? Would a federal court then be able to retry Trump? Usually, with a federal prosecution, the dual sovereigns doctrine applies. But here, the federal court would be following the state law doctrine. Would such a subsequent prosecution be barred by double jeopardy? I am way outside my area of expertise, so I will simply raise the questions here. Sounds like a procedural nightmare.
Update 4: Section 1442 applies to "any officer (or any person acting under that officer) of the United States." In due course, I will address whether that statute applies to Trump, who held one, and only one federal position: President.
After Justice Scalia's death, I mourned not only his passing, but the fact that we would no longer have any new Scalia writings. To this day, no one on the Court can hold a candle to Scalia's writing. Thankfully, the release of Justice Stevens's papers has given us new insights into Scalia's prime-time on the Court. CNN shared a four-page memo that Scalia wrote to the conference concerning Clinton v. Jones. This important case held that President Clinton was not immune from civil litigation for acts that arose before he became president. Justice Stevens wrote the majority opinion for a unanimous Court.
Clinton v. Jones was argued on January 13, 1997. The memorandum was circulated on April 4, 1997. If I had to guess, Justice Stevens's draft majority opinion was circulated at some point in March. CNN did not share the draft opinion, though the structure seems to have changed. Scalia suggests that the opinion concluded with Part VI. But the published opinion has eight parts. It is possible to compare Scalia's suggested edits, with the final version, to see whether Stevens adopted those revisions. Here are nine highlights.
First, Scalia objected to the final paragraph of the introductory paragraph:
The introductory paragraph ends: "Despite the force of the arguments supporting the President's submissions, we conclude that they must be rejected." I happen to think there is not much force to those arguments, but that is just a secondary objection. The principal objection is this: We do not normally announce the relative strength of the arguments our opinions reject, and here there is special reason not to do so. Youngstown and United States v. Nixon were equivalently political cases. In neither of them does our opinion contain any aside about how reasonable the President's position was. We should do the same here.
Stevens ignored that revision. His introductory paragraph concluded with that same line:
Despite the force of the arguments supporting the President's submissions, we conclude that they must be rejected.
Second, Scalia objected to the first paragraph of Part V:
The author of one of the Supreme Court's most widely hated rulings left us extensive files on the case, which have just been made public. They could help shed light on key unanswered questions about.
Yesterday, the late Supreme Court Justice John Paul Stevens' papers from the start of his career through 2005 were made public by the Library of Congress (see here for the official guide to this archive). One of the cases decided in 2005 was Kelo v. City of New London, the hugely controversial Takings Clause property rights decision in which Stevens wrote the majority opinion for a closely divided 5-4 Court. The Takings Clause of the Fifth Amendment says the government only take private property for a "public use." In Kelo, a narrow 5-4 Supreme Court majority ruled that almost any potential public benefit qualifies as "public use," thereby permitting the City of New London to take fifteen residential properties for purposes of transfer to a new private owner in order to increase "economic development." The ruling had a big impact on debates over takings law (both in the United States and around the world), and generated a massive political reaction. Over 80% of the public opposed the decision, and 45 states passed new eminent domain reform laws.
It turns out that the Stevens papers contain four large folders of material about Kelo! Within the next 24 hours, copies of these files will be in my possession, and I hope they will shed light on a number of unanswered questions about the case. Having written a book about Kelo, I have an obvious interest in these issues. But they are also likely to be of interest to other scholars, people interested in property rights issues, and others.
We actually already know a lot about Justice Stevens' thinking about Kelo, because he spoke and wrote about the subject extensively after he retired from Supreme Court in 2010. In a 2011 speech about the case and in his memoirs, published in 2019, Stevens admitted he had made a "somewhat embarrassing to acknowledge" error in his majority opinion, by misinterpreting precedent. He generously cited me as a "scholarly commentator" who "caught this issue shortly after we decided Kelo," in an article I published in 2007. But Stevens continued to believe he got the result right, albeit for reasons very different from the rationale outlined in his majority opinion.
Despite these revelations, there are still a number of unanswered questions about the case that the Stevens papers may illuminate. Here are some things I hope to learn:
1. The ruling was a close 5-4 decision, with Justice Anthony Kennedy - the key swing voter - writing a hard-to-interpret concurring opinion. Was there ever any chance the case could go the other way? Did Kennedy flip at some point?
2. Justice Sandra Day O'Connor wrote the lead dissenting opinion, in which she forcefully criticized the majority and argued that the ruling placed all private property potentially at risk. O'Connor's Kelo dissent is historically important because it played a big role in breaking the seeming consensus in favor of a broad interpretation of "public use." Her endorsement of a relatively narrow definition of "public use" that excludes private "economic development" takings is at odds with her opinion for the Court in Hawaii Housing Authority v. Midkiff (1984), where she states that the public use requirement can be met so long as the government's objective in condemning property is "rationally related to a conceivable public purpose." In her Kelo dissent, O'Connor dismissed this passage from Midkiff as just "errant" language. But legal scholar Ben Barros has shown (using judicial papers from the time) that the justices were well aware of the implications of this ultra-permissive standard.
Clearly, something changed in O'Connor's thinking about public use between 1984 and 2005. Perhaps the Stevens papers will tell us what it was. When I was writing my book about Kelo, I asked to interview Justice O'Connor about her role in the case. But she politely declined.
3. Stevens later wrote thatKelo was "the most unpopular opinion that I wrote during my more than thirty-four years on the Supreme Court. Indeed, I think it is the most unpopular opinion that any member of the Court wrote during that period." Did any of the justices anticipate the massive political reaction to the case? Did it influence the decision in any way?
4. Justice Antonin Scalia, the Court's leading advocate of originalism at the time, joined Justice O'Connor's mostly non-originalist dissent, but did not join Justice Clarence Thomas's much more originalist (and in my view much stronger) dissenting opinion. Why not?
5. Kelo remains highly controversial to this day. At least four current Supreme Court justices have expressed interest in revisiting and perhaps overruling it. I too would be happy to see Kelo reversed. Is there anything in the Stevens files that might strengthen the argument for doing so? Conversely, is there anything there that might strengthen the argument for leaving Kelo in place?
I suspect the answer to both questions is probably "no." Stevens has already helped the anti-Kelo cause tremendously by admitting he made a significant error in his majority opinion. The strengths and weaknesses of the decision are evident from the published opinions. But I could be surprised on this score.
The above is far from an exhaustive list of what might be learned about Kelo from Stevens' papers. It's just a few of the most important questions that occur to me, as a longtime student of the case. There could be revelations on other topics, too!
As soon as I have had a chance to review the files, I will summarize my findings, and post the summary right here on the Volokh Conspiracy blog, hosted by Reason. If the revelations are important enough, I will also write a longer academic article about the subject, or even a new edition of my book. Stay tuned!
UPDATE: I have now read the Stevens papers and summarized the key revelations here.
From In re Estate of Ahmad, decided Mar. 23 by the Maryland intermediate appellate court, in an opinion by Judge Dan Friedman, joined by Justices Douglas Nazarian and Terrence Zic:
The decedent, Mehdi Ahmad, was born in Iran in 1923…. In 1982, after being summoned to appear before the Islamic Revolutionary Court, Mehdi left Iran and traveled to Turkey. Shortly thereafter, Mehdi immigrated to the United States and settled in Maryland…. In 1996, Mehdi became a naturalized citizen of the United States. Mehdi died on November 30, 2018.
Mehdi's will disinherited Mehdi's eldest son, M. Abraham Ahmad, who tried to challenge it on various grounds, partly on the theory that "under Iranian laws, he inherited an indefeasible fixed portion of Mehdi's estate that automatically vested at his birth and applies to all assets that can be traced to assets that Mehdi owned when Abraham was born in Iran." No, said the court, for various reasons, including this: Read More
5/3/1802: Washington D.C. incorporated as the capital of the United States. Article I, Section 8 empowers Congress to "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."
Unliking zoning, private communities respect property rights, and do not create major barriers to people seeking to "vote with their feet" for a better community.
I am a longtime critic of zoning restrictions on property rights, which often preclude owners from building new housing on their land, and thereby impede mobility and "foot voting." On the other hand, I am also a longtime advocate of private planned communities, such as condominiums and homeowners associations (HOAs). Critics sometimes argue that this is a contradiction. After all, like zoning boards, HOAs and other private communities also often restrict what owners can build on their land, and this might block the construction of new housing, which in turn could prevent would-be foot voters from moving to the area.
I had been meaning to write a post about this for some time. But my George Mason University colleague, economist Bryan Caplan, beat me to the punch:
"Do you have a problem with homeowners' associations (HOAs)?" they ask.
No, I don't.
"Even when they tell you what you can and can't do with your own house and land?"
That, I affirm, is the whole point of an HOA.
"Well," the critics continue, "what's the difference between HOAs and local government? If the former can rightfully restrict what you do with your own home and your own land, why not the latter?"
My answer is simple: The difference is that HOAs start with unanimous consent. You can't launch a new HOA unless you get all of the members to voluntarily join. Which is like pulling teeth!
Upshot: In the real world, HOAs are almost always founded not by homeowners coming together, but by the initial developer. How? Developers create HOAs by imposing three conditions of the sale on each and every original owner:
The buyer agrees to submit to the authority of the HOA.
The buyer agrees to require the next owner to agree to (1) if they ever sell their home.
The buyer agrees to require the next owner to agree to (2) if they ever sell their home.
As a result of these carefully-crafted contractual conditions, 100% of the members of the HOA - past, present, and future - consent to belong.
In stark contrast, local governments essentially never start with unanimous consent. Usually you're lucky if they even start with majority support….
Why make such a big deal about unanimous consent? Because anything less than unanimity means that some participants participate at the point of a gun. Picture a massive construction project. 10,000 workers toil side-by-side. What would you think if you learned that a single plumber was there under the CEO's threat of violence? Instead of being a noble undertaking, the project is a criminal enterprise….
The requirement of unanimous consent ensures that HOA restrictions rarely, if ever, violate owners' property rights. It also makes it unlikely that HOAs and other private communities can significantly restrict mobility in the way zoning restrictions do. It is nearly impossible for an HOA with severe restrictions on building to take over a vast area, such as a major metropolitan area or even a good-size suburb. The city of Houston, which has no zoning, but gives relatively free rein to HOAs, is an excellent case in point. The extensive presence of HOAs hasn't prevented Houston from building large amounts of new housing, and featuring far lower housing costs than cities with zoning restrictions. Indeed, the city's openness to consensual private land-use restrictions may even have facilitated new housing construction by allowing those who really want restrictions to create small enclaves for themselves instead of imposing those rules on everyone else.
[T]here are over 350,000 private planned communities in the United States… and it is likely possible to create many more of them. The variety of organizational forms for private communities provides a range of options for potential foot voters to choose from, and reduces the risk that any one type will dominate the market, leaving potential residents with few or no alternatives.
Critics fear that private planned communities, particularly homeowners associations (HOAs), can themselves become exclusionary impediments to mobility. Like local governments, they can adopt land-use restrictions within their domain, and make it difficult to build new housing, thereby potentially keeping out the poor, racial minorities, and others.
But the sheer number of private planned communities makes it unlikely that they can create barriers to mobility to anything like the same extent as government bodies, which control far larger territories. If some HOAs keep out a particular group, that creates a potential profit opportunity for others in the same area.
Moreover, unlike zoning regulations imposed by the government, a private planned community can only be established with the unanimous consent of all the property owners whose land it includes. That both makes it more consensual than zoning…. and makes it less likely that an entire large region will be covered by planned communities that all work to exclude the same types of people, whether the poor, a racial minority, or some other group. The danger of exclusion is, however, an additional reason for eliminating regulations that require all new housing development projects in a given area to join a private planned community.
In the book, and other writings, I also explain how private communities can actually expand foot voting options, including for the poor and lower-middle class. They can do so even more if we break down barriers to the establishment of new private communities, an issue I also cover in the book.
I do, however, criticize laws that, in some localities, actually require homeowners to join HOAs. Property owners should be allowed to join these organizations or to set up new ones. But they should not be compelled to do so.
The policy will protect thousands of Afghan refugees against imminent prospect of deportation. Same should be done for Ukrainians and others admitted to US using the parole power. But a permanent solution to this problem requires Congress to pass an adjustment act.
Afghan evacuees arrive at Dulles International Airport in September 2021 (Rod Lamkey - CNP/Polaris/Newscom)
When Afghanistan fell to the Taliban in 2021, the Biden Administration let some 77,000 Afghans enter the United States by using the president's "parole" power to grant temporary refuge to foreign citizens "for urgent humanitarian reasons or significant public benefit." Unfortunately, Afghans who entered the US on this basis were only given two years of residency and work rights. For most, that time limit will expire within the next few months. In a recent Boston Globe article, (non-paywalled version here) I warned that this looming deadline will cause a terrible injustice unless action is taken to extend it. Otherwise, Afghan parolees will soon lose residency and work rights, and be subject to deportation. I also noted that the same point applies to many thousands of Ukrainians and others fleeing war and oppression, who have also been granted entry under the parole power. Other immigration experts have given similar warnings.
The Biden Administration obviously studied my article, and decided to take action, at least when it comes to the Afghans. OK, they most likely did not read it. But, fortunately, they decided to take action anyway:
The Biden administration is planning to allow tens of thousands of Afghans brought to the U.S. after the Taliban takeover of their homeland to apply to stay and work in the country legally for at least another two years, as efforts in Congress to legalize them have stalled, four people familiar with the plan told CBS News.
The decision by the Department of Homeland Security (DHS) will give Afghan evacuees an opportunity to renew their temporary work permits and protections from deportation under a humanitarian immigration policy known as parole, which was used on a massive scale in 2021 and 2022 to resettle them.
Eligible Afghans will be allowed to submit an online application with the U.S. Citizenship and Immigration Services (USCIS) to request a renewal of their parole classification, the sources said, requesting anonymity to discuss the policy decision before its public announcement. The agency, one of the sources said, is planning to start accepting renewal requests in June.
This is a step in the right direction, and I applaud it. But much more needs to be done. At the very least, the administration should grant similar extensions to Ukrainians and others admitted under the parole system. For Ukrainian parolees, their two-year periods will start to expire in April or May of 2024, in the case of the earliest-admitted migrants under the Uniting for Ukraine program (in which I am a sponsor).
Ultimately, executive action alone cannot provide a permanent solution to this challenge. That is likely to require a congressional adjustment act, similar to those enacted for past parolees, such as Cubans and Hungarians fleeing communism. I summarized the reasons why in the Boston Globe article:
Biden could potentially extend the Uniting for Ukraine and TPS deadlines through unilateral executive action. But such an executive fix would still leave refugees vulnerable to the whims of whomever sits in the White House. If Biden or a future president found it politically convenient to do so, they could easily terminate their rights or just let them expire again.
The best solution for this problem is for Congress to pass a Ukrainian Adjustment Act, giving Ukrainian migrants who have entered the United States during the war the right of permanent residency and work status. That would give them a secure status no longer subject to the vagaries of politically driven executive discretion.
In the article, I also go over the moral, economic, and strategic justifications for enacting adjustment acts for Ukrainians, Afghans, and other migrants facing similar situations.
The never-ending reporting on Supreme Court ethics has backfired. The goal was to demonstrate that certain Supreme Court Justices are behaving unethically. But in turn, each of these stories unraveled. The Justices either followed the rules, or made a good-faith error that was promptly corrected. If the entire media apparatus is unable to unearth actual problems, then we should take comfort: the Justices take their ethical obligations quite seriously.
The latest story to fall apart concerns Justice Thomas's childhood home in Georgia, which was purchased by Harlan Crow. Mark Paoletta, who has many close ties to the Thomases, explains the details of that land transaction:
In 2014, Crow visited Thomas's boyhood home, where the justice's mother, Leola Williams, was living. The neighborhood was unsafe, with crack houses nearby, and drug dealers and derelicts roaming the street. Crow asked Thomas what would happen to this home when his mother passed, and Justice Thomas replied that he would bulldoze it. Crow thought this was a horrible idea — this was the home where Thomas came to live with his grandparents in 1955, when he was seven. His life was forever changed by his being raised by his grandparents, and Crow did not want this home lost to history.
When Crow first expressed interest in buying the home, he did not know that Justice Thomas had an ownership interest in it — he thought it was just his mother's home. Crow's team did their due diligence and came up with a market price of $133,000 for the home and two vacant lots on the same street. The vacant lots were previously owned by Thomas's grandfather and later inherited by Thomas, his mother, and the estate of his deceased brother. (This sale did not include the farmhouse in Liberty County, Ga., in which Justice Thomas still has a one-third interest.)
As part of the contract, Crow granted a lifetime-occupancy agreement to Thomas' mother, then 85, just as he had done with the Varns several years earlier. This was no gift, as the lifetime-occupancy agreement was part of the market-price calculation. This arrangement allowed Crow to begin the work to preserve the property immediately while allowing Mrs. Williams, now 94, to continue to live there. Crow also bought several other homes and lots on this street, and this small area has since been transformed into a beautiful, vibrant, and safe street.
In the years preceding this transaction, Justice Thomas and his wife put significant sums of money into making improvements to his mother's house. Given these costs, their one-third share of its sale price amounted to a capital loss on the property. Because of that, Justice Thomas did not believe that the sale of his mother's home was a reportable transaction. He never considered this inherited home as an "investment or trust," which is the language that appears on the financial-disclosure form where a filer must report any transaction over $1,000. Now that this has been brought to his attention, Justice Thomas is expected to amend his previous financial-disclosure form to reflect this sale. Amendments are not uncommon.
That's it. Thomas made a good-faith error, and will file an amendment. Other Justices have taken similar steps.
