Judge Michael Truncale (E.D. Tex.) issued a preliminary injunction, including against pending prosecutions, concluding that the film is likely fully constitutionally protected, and that the prosecutor's theory that it contains child pornography is likely unsound. Federal courts generally abstain from blocking pending state prosecutions, under the so-called Younger abstention doctrine. But here the court concluded that the prosecutions fit within the exception to that doctrine for groundless prosecutions brought for the purpose of harassment and retaliation. An excerpt:
Section 43.25 [under which Netflix is prosecuted] is a child pornography statute, but the Court is unconvinced that Cuties contains child pornography. In all of Cuties, there are no sex scenes and there is only one scene that contains nudity. In that one scene, the Cuties are watching a video on one of their phones when a dancer in the video flashes her breast for a fraction of a second. But that dancer ("Jane Doe") was not a minor. Therefore, her nudity cannot constitute child pornography.
Mr. Babin received notice—well before he sought the New Indictments—that Jane Doe was over eighteen at the time of filming. On October 9, 2020, shortly after Netflix received service of the First Indictment, Netflix's counsel met with Mr. Babin and Mr. Hardy to discuss the case and the indictment. Trying to determine what specifically prompted the indictment, Netflix's counsel volunteered that "if the issue were the fleeting sight of a woman's breast, that they should know that the woman was over eighteen and thus not a child when that scene was filmed." Netflix's counsel also offered to provide proof that Jane Doe was over eighteen when the scene was filmed, but Mr. Babin and Mr. Hardy denied that the indictment involved the exposed breast and expressed no need to see such proof. Despite Netflix volunteering this information, Mr. Babin later obtained the New Indictments under Section 43.25—one of which is for Jane Doe's nudity.
For more, see the opinion (Netflix, Inc. v. Babin). Congratulations to E. Leon Carter, Linda R. Stahl, Joshua J. Bennett, and Monica Litle Goff (Carter Arnett PLLC) and David M. Prichard (Prichard Young, L.L.P.), who represent Netflix.
Earlier today, a three-judge panel of the US Court of Appeals for the Eighth Circuit unanimously concluded that at least some of the six states challenging the legality of President Biden's plan to forgive some $400 billion in student loan debt have standing to challenge the program. This decision reversed a badly flawed district court ruling going the other way. In my post criticizing the lower court decision, I said that "it is likely that the US Court of Appeals for the Eighth Circuit will overturn this decision." They have now done exactly that. Here is the key part of today's ruling:
This case centers on the plaintiff States' request to preliminarily enjoin the United States Secretary of Education ("Secretary") from implementing a plan to discharge student loan debt under the Higher Education Relief Opportunities for Students Act of 2003…
Key to the district court's rationale was its conclusion that the State of Missouri could not rely on any harm the Missouri Higher Education Loan Authority ("MOHELA") might suffer on account of the Secretary's cancellation of debt. The States appealed and moved for a preliminary injunction pending appeal….
The district court's analysis began and ended with standing….We begin by examining the standing of the State of Missouri and, like the district court, focus on MOHELA. MOHELA's unique mix of legal attributes and authority have led to differing opinions as to whether it is an "arm of the state" of Missouri for purposes of being entitled to sovereign immunity. The core issue before this court, however, is whether the alleged harm from the Secretary's debt discharge plan, considering the role of MOHELA, is sufficient to meet the requirements for Article III standing for Missouri.
The relationship between MOHELA and the State of Missouri is relevant to the standing analysis. MOHELA was created by the General Assembly of Missouri. See Mo. Rev. Stat. § 173.360. It is governed by a seven-member board composed of five members appointed by the Governor of Missouri, as well as the Missouri State Commissioner of Higher Education and a member of the Missouri State Coordinating Board of Higher Education. Id. After its creation, the Missouri General Assembly expanded MOHELA's purpose to include "support[ing] the efforts of public colleges and universities to create and fund capital projects." Id. Relatedly, the General Assembly established the Lewis and Clark Discovery Fund ("LCD Fund") from which the General Assembly may annually appropriate moneys for certain purposes, including "funding of capital projects at public colleges and universities." Id. § 173.392. Most significantly, Missouri law, id. § 173.385.2, specifically directs MOHELA to distribute $350 million "into a fund in the State Treasury" for this program…..
Given this statutory framework, MOHELA may well be an arm of the State of Missouri under the reasoning of our precedent. See Pub. Sch. Ret. Sys. of Mo. v. St. Bank & Trust Co., 640 F.3d 821, 826–27, 833 (8th Cir. 2011) (applying the test to determine whether sovereign immunity applies and holding Missouri public school employment retirement systems were arms of the state). In fact, a number of district courts have concluded that MOHELA is an arm of the state…..
But even if MOHELA is not an arm of the State of Missouri, the financial impact on MOHELA due to the Secretary's debt discharge threatens to independently impact Missouri through the LCD Fund. It is alleged MOHELA obtains revenue from the accounts it services, and the total revenue MOHELA recovers will decrease if a substantial portion of its accounts are no longer active under the Secretary's plan. This unanticipated financial downturn will prevent or delay Missouri from funding higher education at its public colleges and universities. After all, MOHELA contributes to the LCD Fund but has not yet met its statutory obligation.
Due to MOHELA's financial obligations to the State treasury, the challenged student loan debt cancellation presents a threatened financial harm to the State of Missouri…. Consequently, we conclude Missouri has shown a likely injury in fact that is concrete and particularized, and which is actual or imminent, traceable to the challenged action of the Secretary, and redressable by a favorable decision. Missouri, therefore, likely has legal standing to bring its claim. And since at least one party likely has standing, we need not address the standing of the other States.
This is exactly right. The Biden Administration's loan forgiveness plan would cause MOHELA and other loan servicers to lose revenue from servicing the loans they administer. And this in turn will cause financial losses to Missouri's treasury. Because MOHELA is a state agency, I think a loss to MOHELA is necessarily a loss to the state, even aside from the special LCD arrangement described by the 8th Circuit. But the latter makes the case for standing even stronger.
These points render irrelevant MOHELA's recent statement that they were not involved in the decision to bring a case against the loan forgiveness program. Even if MOHELA's leadership isn't taking part in the lawsuit - and, indeed, even if they oppose it- the fact remains that MOHELA is owned by the state of Missouri, and its financial losses are necessarily also losses to the state. Indeed, the very same letter in which the agency disclaims involvement in the lawsuit also indicates that MOHELA is "a government entity" and "a public instrumentality of the State of Missouri." If so, any financial injury the Biden loan forgiveness program inflicts on MOHELA also qualifies as a financial injury to the state.
In addition to ruling that the state of Missouri has standing to bring this case, the 8th Circuit also granted the plaintiffs' motion for a preliminary injunction blocking implementation of the loan forgiveness program until such time as the court resolves the appeal on the merits:
Having addressed the threshold standing issue, we turn to the balancing of the equities and the probability of success on the merits. Not only do the "merits of the appeal before this court involve substantial questions of law which remain to be resolved," Walker, 678 F.2d at 71, but the equities strongly favor an injunction considering the irreversible impact the Secretary's debt forgiveness action would have as compared to the lack of harm an injunction would presently impose. Among the considerations is the fact that collection of student loan payments as well as accrual of interest on student loans have both been suspended. We conclude "the equities of this case require the court to intervene to preserve the status quo pending the outcome" of the States' appeal, id., and that the States have satisfied the standard for injunctive relief pending review…
Here, I think the court needed to say more. As the above passage suggests, the standard for granting a preliminary injunction includes the requirement that the plaintiffs prove they are likely to succeed on the merits. It is not enough to say merely that the issue before the court is a "substantial question of law." For whatever reason - perhaps a desire to issue this ruling as quickly as possible - the Eighth Circuit panel essentially skipped this part of the analysis.
However, with the standing issue no longer blocking them, the plaintiffs are in fact likely to succeed on the merits, because the government's arguments for the legality of the loan forgiveness plan are extremely weak. I summarized the reasons why here. In a later post, I explained why the same is true of a possible alternative justification under the 1965 Higher Education Act.
Today's ruling is not a final decision on the merits. That will come later. However, despite their failure to include all the necessary reasoning, I think it's unlikely that the Eighth Circuit panel would have issued an injunction against the program if they did not think it likely they would ultimately strike it down.
It is also worth noting that this is actually the second nationwide injunction against the Biden loan forgiveness program. A federal district court in Texas issued an injunction against last week in a ruling that actually reached the merits. But the state lawsuit before the Eighth Circuit is more likely to ultimately succeed, because at least some of the states have a stronger argument for standing.
It is worth emphasizing that the Biden Administration and its supporters in this litigation have adopted what once would have been considered extremely conservative positions on standing. Traditionally, liberals have argued for permissive standing rules, so as to make it easier to vindicate constitutional rights against abusive governments, while many conservatives have claimed that standing restrictions are a valuable tool for combating judicial "activism." While this is not the first-ever role reversal on standing issues, it's a particularly dramatic example.
In addition, if standing requirements are so tight that no one has the ability to bring suit against a massive potentially illegal $400 billion executive branch raid on the Treasury, that would be a grave menace to the constitutional separation of powers. Even if you believe Biden can be trusted with such sweeping unilateral authority over the federal budget, you might not feel the same way about the next GOP president. Biden's actions here actually have much in common with Donald Trump's effort to use emergency powers to divert funds to build his border wall.
I will have more to say about recent developments in the Texas case and other lawsuits challenging the Biden loan forgiveness program later this week. Because of the press of competing commitments, I have not had a chance to comment on these developments since late October. But I hope to make up for that in the near future.
UPDATE: As justification for not considering the plaintiffs' likelihood of success on the merits, the court in this case cites a 1982 Eighth Circuit ruling holding that "where the movant has raised a substantial question and the equities are otherwise strongly in his favor, the showing of success on the merits can be less." But saying that the likelihood of success on the merits "can be less" is not the same thing as concluding that it can be ignored completely. In addition, since 1982, the Supreme Court has repeatedly reiterated that a "plaintiff seeking a preliminary injunction" does in fact have to "establish that he is likely to succeed on the merits." It has not recognized any exceptions for situations where there is a "substantial question" of law at stake. Indeed, it applied the "substantial likelihood" standard in last year's eviction moratorium case, where there undeniably was a "substantial question" of law on a important issue. This intervening Supreme Court precedent supersedes any previous lower court precedent to the contrary - including the 1982 Eighth Circuit decision.
I received the following email from the Virginia chapter of the American Asssociation of University Professors (of which I am not a member, btw):
1. The VA-AAUP Resolution on Antisemitism and Racism
The VA Conference of the American Association of University Professors (VA-AAUP) recently passed the attached resolution on Antisemitism and Racism. This resolution is in response to Governor Youngkin's Executive Order #8 to establish the Commission to Combat Antisemitism.
1. The VA-AAUP Resolution on Antisemitism and Racism
The VA Conference of the American Association of University Professors (VA-AAUP) recently passed the attached resolution on Antisemitism and Racism. This resolution is in response to Governor Youngkin's Executive Order #8 to establish the Commission to Combat Antisemitism. At issue is the IHRA "working definition" of antisemitism that includes political critiques of Israeli state actions, including discrimination and violence against Palestinians. The VA-AAUP calls upon our elected representatives in the General Assembly, the Governor, and all leaders of academic institutions in the Commonwealth of Virginia, to:
1. Reaffirm that the freedom to teach and freedom to learn are inseparable facets of academic freedom;
2. Reaffirm that academic excellence requires rigorous critical examination of all sides of an issue and the freedom to hypothesize and study new and different ideas even if they are not politically popular;
3. Oppose adoption of the 2016 International Holocaust Remembrance Alliance (IHRA) "working definition" of antisemitism;
4. Oppose any political interference in the conduct of the Commonwealth's institutions of higher education; and
5. Oppose, prohibit, and condemn in the strongest possible terms, any actions that would ban, limit, or distort the teaching of history, social studies, and/or related academic subjects.
The IHRA definition of antisemitism is controversial. It includes the following as examples of antisemitism:
Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
Drawing comparisons of contemporary Israeli policy to that of the Nazis.
I don't fully agree with this definition. In particular, I think one can argue that Jews, like other minorities such as Kurds, should just suck it up and not have their own country. One could hold this opinion because one is an Islamist, opposes nationalism in general, thinks Israel's presence is too disruptive to the Middle East, or think that Israel is a bastion of Western imperialism--none of which is an inherently antisemitic opinion to hold.
Moreover, in general I find that it's less problematic to philosophically question whether Israel should have been created but accept its de facto existence (as, last I heard, such very harsh critics as Noam Chomsky and Norman Finkelstein do) than to have no philosophical objection to Israel's existence, as such, but support Israel's destruction because Israel gets in the way of Palestinian nationalism, pan-Arabism, or Islamism. Those in the latter camp tend to support Israel's destruction regardless of what that would mean for the fate of the Jews who currently live in Israel. Being okay with genocide is much worse than merely, e.g., arguing that Israel is a racist endeavor but we need to find a way toward a two-state solution.
All of which is to say that my problem is not with AAUP-VA's criticism of the IHRA, as such. The AAUP-VA could reasonably object that the definition is overbroad in some respects, and though adopting the IHRA definition does not in itself suggest that anyone's speech would be penalized or suppressed (and in fact it's explicitly not meant to be legally binding), it could have a chilling effect on faculty afraid that certain types of criticism of Israel would lead to them being denounced as antisemites. Or, the AAUP-VA could simply suggest that what constitutes racism or any form thereof, including antisemitism, is a matter of intellectual debate regarding which a state government should not be taking a position.
Instead, the AAUP-VA claims that the IHRA definition condemns as antisemitic "political critiques of Israeli state actions, including discrimination and violence against Palestinians." But there is nothing in the IHRA definition that would deem a statement along the lines of "I condemn Israeli discrimination and violence against Palestinians" as antisemitic. Indeed, the IHRA definition specifically states that "criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic." Other countries are criticized for perceived discrimination against minorities or violence against enemy peoples or nations, sometimes fairly, sometimes less so, all the time.
So in the name of opposing the "distortion" of social studies, AAUP-VA is distorting the IHRA definition of antisemitism, by suggesting that it condemns any critiques of Israel's policies toward the Palestinians. (I also don't think that AAUP-VA should be implicitly editorializing about "discrimination and violence against Palestinians," which kinda undermines its position of a being a neutral advocate of academic freedom.)
The underlying problem is that those most opposed to the IHRA's definition within the academy can't provide an honest critique of the definition, because they don't simply want to criticize Israel is some reasonable, normal fashion. Rather, they object to the IHRA definition precisely because they want to condemn the idea of having a state for the Jewish people as inherently racist, apply double standards to Israel, use images of a classically antisemitic nature to attack Israel, and analogize Israeli policy to Nazis, without being accused of antisemitism. (All of these criticisms, by the way, are protected by academic freedom, even though antisemitic.)
For the AAUP-VA to play along with this charade is shameful.
UPDATE: All the governor's executive order reference by the AAUP-VA has to say about the IHRA is this: "Antisemitism, as defined by the International Holocaust Remembrance Alliance, 'is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.'" So the statement going on about Israel and so forth by AAUP-VA is best seen as part of a worldwide campaign by forces hostile to Israel to undermine the IHRA (because, like I said, they want to engage in double standards, Nazi analogies, etc., without being called on it), rather than as reflecting any threat to academic freedom regarding criticism of Israel.
A federal appeals court has entered a nationwide injunction pending appeal in Missouri's lawsuit against President Biden's student loan forgiveness policy.
Earlier today the U.S. Court of Appeals for the Eighth Circuit granted an emergency motion for a nationwide injunction pending appeal filed by several red states that blocks the federal government from moving forward with President Biden's student loan forgiveness policy. The brief per curiam opinion was joined by Judges Shepherd, Erickson, and Grasz.
This is a significant ruling in what is likely the most serious legal challenge filed against the Biden initiative. Among other things, the argument for Article III standing, which is based upon the impact of harm to the Missouri Higher Education Loan Authority (MOHELA) on the state of Missouri, appears to be significantly stronger and more substantial than the arguments for standing put forward in other cases.
I've linked to the opinion above and will reproduce below the jump.
From today's decision in Punchbowl, Inc. v. AJ Press, LLC, written by Judge Daniel Bress and joined by Judge John Owens and District Judge Sidney Fitzwater:
Punchbowl, Inc., is an online party and event planning service. Punchbowl News is a subscription-based online news publication that provides articles, podcasts, and videos about American politics, from a Washington, D.C. insider's perspective. Punchbowl claims that Punchbowl News is misusing its "Punchbowl" trademark. Applying our precedents, we hold that Punchbowl News's use of the term "Punchbowl" is expressive in nature and not explicitly misleading as to its source. It thus falls outside the Lanham Act [the federal trademark statute -EV] as a matter of law.
Seems quite right to me, under the so-called Rogers test:
The Lanham Act "creates a comprehensive framework for regulating the use of trademarks and protecting them against infringement, dilution, and unfair competition." Traditionally, courts apply a likelihood-of-confusion test to claims brought under the Lanham Act.
When "artistic expression is at issue," however, we have held that "the traditional test fails to account for the full weight of the public's interest in free expression." If we were to disregard "the expressive value that some marks assume, trademark rights would grow to encroach upon the zone protected by the First Amendment." Mattel, Inc. v. MCA Records, Inc. (9th Cir. 2002). A trademark owner "'does not have the right to control public discourse' by enforcing his mark." Thus, "if the product involved is an expressive work," we apply a gateway test, grounded in background First Amendment concerns, to determine whether the Lanham Act applies.
Kat has navigated dating, marriage, divorce, and then dating again with an invisible condition. How have significant others reacted when she has needed accommodations for her lifelong rheumatoid arthritis? And what's it been like dating (and when need be, breaking up) as an immunosuppressed person during the COVID-19 pandemic? Come for a lesson in empathy from this brilliant and wise academic who tells all about her interactions with strangers, whether in NYC or Idaho, and from Los Angeles to the other "LA"!
In Jansen v. Jansen, decided Thursday by the Michigan Court of Appeals (Presiding Judge David H. Sawyer and Judges Jane E. Markey and Brock A. Swartzle), the court changed custody of two daughters from the mother to the father, for many reasons. But two of the factors that the court specifically noted as significant struck me as worth noting: the mother's "inappropriate conversations with the children about her sex life" and her negligence in leaving a sex toy where EJ and a friend found it":
The trial court specifically indicated that the following factual grounds established proper cause and a change of circumstances: (1) defendant's inattentiveness to EJ's medical and health needs [EJ had apparently become morbidly obese -EV], (2) defendant's relinquishment of her parenting time to pursue her personal goals, (3) defendant's inappropriate conversations with the children about her sex life, (4) defendant's unacceptable behavior involving wrestling with the children, (5) defendant's negligence in leaving a sex toy where EJ and a friend found it, and (6) defendant's inability to control her anger and interact appropriately with the children as demonstrated by a recorded conversation….
[T]here was evidence that defendant [mother] discussed the parties' sex lives with the children multiple times. She told the children that she had dated a man with "erectile dysfunction," which she deemed appropriate to share with the children. [Elsewhere in the opinion, the court noted that the mother had also discussed the father's sex life. -EV] And defendant {negligently} left a sex toy on her bed that her children discovered. Of note, at the time of the de novo hearing, EJ was only 11 years old and JJ was only 10 years old….
Likewise, the court noted that it counted against the mother:
From Skinner v. Hadlock, decided Thursday by Judge Michael Baylson (E.D. Pa.):
Skinner alleges that Hadlock falsely accused him of raping her in September 2018 while Hadlock was a graduate student in the University of Pennsylvania's Masters of Social Work program.
Skinner, who was the program counselor at a housing-for-the-homeless social work program and Hadlock's graduate assignment supervisor at the time, was arrested in January 2019 and incarcerated for nearly two years while awaiting trial. In December 2021, Skinner's criminal trial commenced; at the end of Hadlock's testimony and before the end of the prosecutor's case, the prosecutor moved to withdraw the case with prejudice due to new evidence produced at trial. The trial judge granted the motion and Skinner's criminal case was terminated. Skinner now brings the above claims against Hadlock. Hadlock also maintains a civil suit in state court against the housing program and the University of Pennsylvania, which she filed in December 2018….
[A.] Abuse of Process Claim
To state a claim for abuse of process under Pennsylvania law, the plaintiff must show (1) that the defendant used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, and (3) harm has been caused to the plaintiff.
A new study presents compelling evidence that opposition to new housing construction is often caused the mistaken belief that it will increase housing prices rather than reduce them.
Zoning restrictions on the construction of new housing inflict immense harm by cutting off millions of people from housing, educational, and job opportunities. Even current homeowners who have no desire to move can often benefit from deregulation. Nonetheless, NIMBY ("not in my backyard") sentiments are a major obstacle to new construction and often block reform. The standard explanation for NIMBYism is that current homeowners rationally conclude that new construction is inimical to their interests, even if benefits society as a whole. But "Folk Economics and the Persistence of Political Opposition to New Housing," a new article by legal scholar Chris Elmendorf and political scientists Clayton Nall and Stan Oklobdzija finds that simple economic ignorance is a a major factor. It turns out that only a minority of Americans (about 30-40%) understand that new housing construction reduces housing prices, and a comparably large group actually believe the opposite: that new construction increases them!
Here is the abstract summarizing their conclusions:
Political scientists commonly attribute the underproduction of housing in US metropolitan areas to unequal participation and collective action problems. Homeowners, who are organized, repeat players in local politics, mobilize against proposed projects nearby, while renters, who would benefit from more housing, benefit too diffusely to mobilize for it and may not even vote in the jurisdiction. Using data from two nationally representative surveys of urban and suburban residents, we posit a further cause of the housing shortage: public misunderstanding of housing markets. Through vignettes describing a 10% shock to regional housing supply, we find that only about 30–40% of respondents believe that additional supply would reduce prices and rents. Using a conjoint design, we find that this "Supply Skepticism" is robust to question wording, stipulated counterfactual assumptions, and the cause of the supply shock. It also appears to be specific to housing: respondents generally gave correct answers to questions about supply shocks in other markets. Finally, we find that while nearly all renters and even a majority of homeowners say they would prefer home prices and rents in their city to be lower in the future, support for state preemption of local land-use restrictions depends on beliefs about housing markets. "Supply skepticism" among renters undermines their support for home construction, while some homeowners appear to be more supportive of new development than they would be if they held conventional economic views.
As the authors point out, "supply skepticism" caused by economic ignorance helps explain why renters often oppose new construction as much as homeowners do. The former have everything to gain and nothing to lose from lowering prices. But many don't realize that new construction will lead to that result. They authors also find that many homeowners actually want to see prices go down (contrary to the stereotype that voters are motivated by narrow self-interest). But, as with renters, many don't realize that new construction will have that result. The authors also do a lot of useful work to rule out alternative explanations for supply skepticism, other than ignorance.
These findings should not be surprising. For most voters, ignorance about public policy and its effects is actually rational behavior, driven by the infinitesimally small likelihood that any one vote will make a difference. Ignorance about the economic effects of zoning and housing construction is just part of the much broader phenomenon of political ignorance, which applies to a vast range of issues. I cover many of them in my book Democracy and Political Ignorance.
But Nall, Elmendorf, and Oklobdzija show that public ignorance about the effects of housing construction is much more common than similar misunderstandings about supply increases in other markets. They offer some possible explanations for the discrepancy.
The authors also find "a very strong tendency to blame housing providers (developers) for high housing prices. Conversely, actors whose stock in trade is opposing new development (environmentalists, anti-development activists) are almost never blamed." Ironically, ignorant public opinion puts the blame on the very people whose efforts tend to alleviate the problem, while sparing the real culprits.
Economic ignorance is not the only factor driving NIMBYism. Some people really do oppose new construction based on careful calculations of their narrow self-interest. While current homeowners can often benefit from development in various ways, if you're an owner who does not have children (or doesn't care about their housing costs), doesn't care much about promoting growth and innovation, and wants to ensure that the "character" of your neighborhood changes as little as possible, you might rationally oppose zoning reform, even if you understand its effects perfectly well. Historically, racial and ethnic prejudice has also been an important factor, though it has waned more recently, as education levels have risen and white suburbanites have become more open to integration.
But, while ignorance is not the only cause of NIMBYism, "Folk Economics and the Persistence of Political Opposition to New Housing" shows that it is likely to be a major factor. Reform efforts will need to take account of this challenge.
Economist Alex Tabarrok has additional comments on this article and its significance at the Marginal Revolution blog.
Customs and Border Protection Commissioner Chris Magnus is under fire. Migrant encounters along the southern border are increasing and his handling of the border has has been criticized by members of Congress and officials within his own agency, some of who are threatening to quit.
Yesterday, Politico reported, Department of Homeland Security Secretary Alejandro Mayorkas told Magnus to resign or he would be fired, but Magnus has refused to resign. In response, the Politico accounts notes, DHS has sought to remove some of Magnus's authority until he is replaced.
From the story:
Magnus was told on Wednesday by Homeland Security Secretary Alejandro Mayorkas that he should either resign or be dismissed and, so far, the CBP chief has refused to step down, according to the four people.
Some executive assistant commissioners at CBP have indicated they would leave the agency if Magnus does not resign, according to one of the current DHS officials and the former DHS official.
Mayorkas has since shifted Magnus' duties and responsibilities to his deputy secretary, John Tien, and has deputy CBP commissioner Troy Miller, a career government official, running the agency's day-to-day operations, according to three of the people.
One of the current officials said all CBP decisions now must first go through the DHS front office. In addition, all of Magnus' direct reports are reporting to Tien and Miller, according to one of the other officials.
"I want to make this clear: I have no plans to resign as C.B.P. commissioner," Mr. Magnus, the head of the agency, said in a statement shared with The New York Times. He said the Department of Homeland Security cut off his access to his Customs and Border Protection Twitter account. Mr. Magnus, 62, said he intends to go to work on Monday.
The concept of rights has informed our understanding of the freedom of persons in the context of the power of the state. But our understanding of the content of rights has changed over time. How were rights understood in the past, and how do we understand them in the present? And how can we use our answers to those questions to better inform our understanding of rights in the future? These questions, and others like them, will be addressed at this half-day, online conference, co-hosted by the Liberty & Law Center at the Antonin Scalia Law School and the Sunwater Institute.
CONFERENCE PROGRAM
On Zoom, Friday November 18
12:00 noon to 4:30 pm
All times are in Eastern Daylight Time Zone (EDT)
12:00 PM: Opening Remarks
12:10 – 1:20 PM: Panel One – Rights in the Past
Mark Somos: Heisenberg Professor at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany
Ioanna Tourkochoriti: Member of the Law School Faculty at the National University of Ireland, Galway
Moderator: David Bernstein, University Professor and the Executive Director of the Liberty & Law Center at the Antonin Scalia Law School
1:35 – 2:45 PM: Panel Two – Rights in the Present
Prithviraj Datta: Visiting Assistant Professor in the Government Department at Franklin & Marshall College
Ilya Somin: Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Joseph Kochanek, External Scholar at the Sunwater Institute, and a Visiting Assistant Professor at the George Washington University
3:00 – 4:10 PM: Panel Three – Rights in the Future
Joseph Kochanek: External Scholar at the Sunwater Institute, and a Visiting Assistant Professor at the George Washington University
Ani Harutyunyan: Scholar at the Sunwater Institute
Moderator: Matthew Chervenak, Founder and President of the Sunwater Institute
Yesterday, the Biden Administration announced that it would be proposing a new regulation to require federal contractors to report on and reduce their greenhouse gase emissions. From the White House Fact Sheet:
In support of President Biden's Executive Orders on Climate-Related Financial Risk and Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, the Administration is proposing the Federal Supplier Climate Risks and Resilience Rule, which would require major Federal contractors to publicly disclose their greenhouse gas emissions and climate-related financial risks and set science-based emissions reduction targets. . . .
The proposed rule is part of the President's leadership to implement the first comprehensive, government-wide strategy to measure, disclose, manage, and mitigate the systemic risks that climate change poses to American families, businesses, and the economy. . . .
The Federal Acquisition Regulatory Council, composed of the Department of Defense, the General Services Administration, the National Aeronautics and Space Administration, and chaired by the Office of Federal Procurement Policy in the Office of Management and Budget, is issuing this proposed rulemaking, which would amend the Federal Acquisition Regulation (FAR) to implement these changes, if finalized. The FAR is the primary regulation for use by all executive agencies in their acquisition of supplies and services with appropriated funds.
The proposed rule will be published in the Federal Register on Monday. Here's what it does (according to the White House):
Under the proposed rule, the largest suppliers including Federal contractors receiving more than $50 million in annual contracts would be required to publicly disclose Scope 1, Scope 2, and relevant categories of Scope 3 emissions, disclose climate-related financial risks, and set science-based emissions reduction targets. Federal contractors with more than $7.5 million but less than $50 million in annual contracts would be required to report Scope 1 and Scope 2 emissions. All Federal contractors with less than $7.5 million in annual contracts would be exempt from the rule. Small businesses with over $7.5 million in annual contracts would only be required to report Scope 1 and Scope 2 emissions under the proposed rule. . . .
For reference, here are the Environmental Protection Agency guidances on Scope 1 and 2 and Scope 3 emissions.
Like the Biden Administration Executive Order requiring federal contractors to vaccinate their employees, the source of authority for this regulation is the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq. (aka the "Procurement Act"). Specifically, the proposed regulation cites 40 U.S.C. § 121(c) and 51 U.S.C. § 20113.
These statutory provisions provide the federal government with broad authority to standardize federal procurement and to encourage economy and efficiency within the procurement system. But that does not mean this regulation will be easy to defend in court, particularly insofar as it requires contractors to report supply-chain emissions (Scope 3 emissions). Just as courts were skeptical of the Biden Administration's attempt to require federal contractors to vaccinate their employees (as I discussed here and here), they may be skeptical here.
As I noted in my posts on the federal contractor vaccination requirement litigation, it is not entirely clear how broadly the executive branch may impose conditions on contractors that do not relate in some way to the effective and efficient provision of goods and services to the federal government. Part of the problem is that the Supreme Court has never resolved the question.
The prevailing precedent is AFL-CIO v. Kahn, a 1979 en banc opinion from the U.S. Court of Appeals for the D.C. Circuit. In Kahn, a divided D.C. Circuit held:
Although the terms and legislative record of the FPASA are not unambiguous, the relationship of the Act to this case can be outlined. [The Procurement Act] grants the President particularly direct and broad-ranging authority over those larger administrative and management issues that involve the Government as a whole. And that direct presidential authority should be used in order to achieve a flexible management system capable of making sophisticated judgments in pursuit of economy and efficiency.
Subsequent decisions, such as UAW-Labor Employment and Training Corp. v. Chao (D.C. Cir. 2003) have interpreted this language broadly. In Chao, for insance, the D.C. Circuit said this authority could be used to require federal contractors to post notices informing workers of their rights not to join a union or pay union dues. If this was okay, on the theory that it promotes economy and efficiency to require federal contractors to inform their workers of their rights, perhaps it is no problem to impose broad regulatory comments to prevent climate change. But was it okay? Again, we do not have clear Supreme Court precedent on this question.
It has never been clear to me that Kahn and its progeny are correct. (On this score, it is worth considering Judge MacKinnon's Kahn dissent). I also have severe doubts that the current Court would construe the scope of authority under the Procurement Act so broadly. Further, insofar as this regulation is seeking to leverage the federal government's procurement power to address problems that extend well beyond the economy and efficiency of federal procurement -- and are part of a broader "all of government" climate strategy -- there are good reasons to think federal courts will be skeptical of this initiative.
Recall that in rejecting the OSHA vaccinate-or-test requirement for large firms, the Supreme Court seemed concerned that OSHA was using this rule not to enhance workplace safety, as such. Rather, the rule was part of what we might call an "all of government" effort to increase vaccination rates. And to a majority of the Supreme Court, this was a problem.
This sort of re-purposing of regulatory authority -- pouring new wine out of old bottles -- was something the Court would not allow in NFIB v. OSHA. By the same token, one has to wonder whether this Court would allos a similar repurposing of the Procurement Act, particularly insofar as the proposed regulation sweeps beyond reducing the carbon footprint of the federal government, but extends to value-chain (Scope 3) emissions of federal contractors. Indeed, this could even be thought of as a "major question," and this rule may be as vulnerable as the SEC's proposed climate disclsoure rule.
I expect these sorts of concerns to be raised during the rulemaking process, so it will be worth watching to see how the federal government responds. One thing is for sure: This rule will be litigated.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Last summer, after Chasidy Decker talked to the Idaho Statesman about a Meridian, Idaho code enforcement officer's threat to fine her $1k per day if she didn't move her perfectly lovely, perfectly safe (and perfectly connected to septic) tiny home on wheels, the officer cited her and her landlord for piddling parking and vehicle violations, ignoring the very same violations (and also other homes on wheels) on neighboring properties. What a bully! So we're pleased to report that this week a state district court ruled that Chasidy and her landlord's challenge to the city's tiny home ban—and the officer's retaliation over her speech—can move forward. Learn more here.
Defamation can be prosecuted as a criminal misdemeanor in New Hampshire. Which is inconvenient for an Exeter man, who is arrested over his online commentary in 2012 (accusing a life coach of road rage and heroin dealing) and again in 2018 (posting (inter alia) that a police officer was "the dirtiest most corrupt cop I have ever had the displeasure of knowing" and that the officer's daughter was a "prostitute"). First Circuit: The defamation statute doesn't violate the First Amendment and isn't unconstitutionally vague. Concurrence: On the First Amendment question, we're bound by Supreme Court precedent, but let's not forget that "these laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials." (An interesting long-form piece on "Bob Exeter" is here.)
Faced with a measles outbreak, officials in Rockland County, N.Y. issue an emergency declaration barring unvaccinated minors—except those with a medical exemption or documented serological immunity—from places of public assembly, including schools. Members of the county's Hasidic Jewish community sue, alleging that the elimination of the religious exemption violates the Free Exercise Clause. Second Circuit: And maybe it does; a jury could decide that the order was motivated by anti-religious animus.
Does it violate equal protection for the Pennsylvania Department of Corrections to treat sex offenders differently from other parolees due to "community sensitivity"? District court: That's so unfair it violates the rational-basis test. Third Circuit: "[N]ot all crimes are alike." Reversed.
Third Circuit (2018): Challenges to FERC-approved pipelines have to be brought as appeals from the FERC regulatory process, so this group of nuns that wants to invoke the Religious Freedom Restoration Act are totally hosed. Third Circuit (this week): These same nuns remain hosed.
Twenty-six-year-old driver has schizophrenic episode after his car is run off the road near Santee, S.C. He removes his clothes and clambers on a tractor-trailer, which drives off. Two miles later, the tractor-trailer driver notices the man, calls 911. Upon arrival of police and EMS, man becomes non-verbal. Emergency-medical personnel abuse him and include inaccurate information in the care report. He's left shoeless and shirtless at a closed gas station at around 2 a.m. and found dead (by the same EMS crew) four hours later, struck by a car. District court (Childs, J.): No qualified immunity for the paramedics. Fourth Circuit: Agreed. (The shambolic episode is covered in some detail in this 2019 piece by EMS1.)
To stop the spread of COVID-19, Columbus, Miss. ordinance shuts down tanning salons—but not liquor stores—for seven weeks in the spring of 2020. Fifth Circuit: It might be the case that people spend more time in tanning beds than liquor stores, so there might be more virus spread in the former—and that's all that the gov't has to say to win, thanks to the rational basis test. Concurrence: "If we're going to recognize various unenumerated rights as fundamental, why not the right to earn a living?" SCOTUS, please fix, perhaps by taking up this IJ case.
Allegation: Duncanville, Tex. officer shoots man suffering from severe mental health episode in the stomach as he reached for a phone despite the man's mother assuring officers there were no guns in the home (and the chief of police, in turn, assuring her that the officers wouldn't hurt her son). Three days before the statute of limitations expires, the man sues the officer as John Doe. District court: Which didn't give you enough time to do discovery and identify him. Claims against the now-known officer dismissed. Fifth Circuit: No suing the chief either.
After Cincinnati police misconduct investigator allegedly selectively starts and stops videorecording during officer interview, officer and his union rep seek to make their own recording. Does the First Amendment give officers the right to record in such circumstances? Sixth Circuit: No, and anyway the city now requires investigators to record the entirety of such interviews.
Did Michigan officials waive their Fifth Amendment right against self-incrimination when they testified in pretrial depositions in a civil suit arising out of the Flint Water Crisis? Or is this case moot? Sixth Circuit: No and no (Griffin, J.); No and yes (Thapar, J.); Yes and no (Moore, J.).
Taking a page from the city of Reno, Nev., the city of Ashdown, Ark. sues Netflix and Hulu in an attempt to shake franchise fees out of them. And, taking a page from the Ninth Circuit, the Eighth Circuit holds that the state's Video Service Act does not create a private right of action. Case dismissed.
In 2005, Council Bluffs, Iowa officials banned pit bulls (the dogs, not Mr. 305), which to this day has some residents barking mad. But they had a ruff time of it this week in the Eighth Circuit, which found the bark of plaintiffs' equal protection and due process arguments was worse than their bite. Surely though, other people who care about this pet issue won't bow(wow) out of challenging these types of laws in other circuits.
California tax authorities demand that online merchants who participate in the "Fulfilled by Amazon" program collect and hand over sales taxes for sales made through Amazon. Merchants sue in federal court, raising various constitutional and statutory claims. Ninth Circuit: Yeah, you can't do that because of the Tax Injunction Act. Pay up and then sue in state court for a refund.
TSA employee is approached by an FBI agent who tries to recruit him as a confidential informant. After declining the offer, the TSA agent is surprised to find his security clearance revoked. Because the clearance is a prerequisite for the job, he's forced to quit. He sues. Ninth Circuit: But all of his claims fail. Among other things, he has no right to a security clearance and, hence, no protected liberty interest in working a job that requires security clearance.
Allegation: Fort Collins, Colo. woman is thrown to the ground by a police officer twice her size when she resisted his grip while he investigated an altercation at a bar. Tenth Circuit: The force was excessive. But it wasn't clearly established that an officer couldn't use a takedown maneuver on a person resisting arrest, so he gets qualified immunity.
Allegation: Woman checks into the University of Kansas Hospital Emergency Room complaining of shoulder and jaw pain. Radiology technician straps her down for an MRI. She falls asleep. She awakes to notice the tech touching her breasts and putting his mouth over them. Hospital: As an arm of the state, we get sovereign immunity. District court: The hospital offered no evidence that it actually is an arm of the state, but I'm gonna do its work for it and I conclude that it is. Case dismissed. Tenth Circuit: The burden is on the hospital, and, since they didn't even try to meet it, case undismissed.
Back in the first weeks of the pandemic, Waylon Bailey cracked a joke on Facebook about COVID-19, a Brad Pitt zombie movie, and sheriff's deputies in Rapides Parish, La. being authorized to shoot "the infected" on sight. No one was alarmed. No one called the sheriff to complain. And yet, deputies came to Waylon's house with guns drawn, handcuffed him, and took him to jail. An obvious First Amendment violation! But this summer a federal district court dismissed Waylon's suit, relying on a pair of long-discredited Supreme Court cases that permitted the gov't to imprison critics of World War I to grant the officers qualified immunity. Now IJ is appealing. Read all about it over at The Washington Post.
A federal district court judge in Florida has imposed sancitons on several attorneys who represented Donald Trump in a sprawling lawsuit alleging various Democratic operatives conspired to spread false information about him. The ruling is here and the NYT's Charlie Savage reports on the decision here.
From the decision:
Rule 11 sanctions are properly assessed (1) when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; or (3) when the party files a pleading in bad faith for an improper purpose. . . . Here, all three are true. . . .
As the opinion notes, Trump's attorneys had problems with the facts:
The pleadings in this case contained factual allegations that were either knowingly false or made in reckless disregard for the truth. The following examples are indicative. When suing someone it helps to know where they live, as this can have subject matter or personal jurisdiction significance. In this case for instance, Mr. Dolan argued that he engaged in no activities in Florida that made him susceptible to suit here. He filed an affidavit stating under oath that he lived in Virginia. His lawyers advised Mr. Trump's lawyers of that. Moreover, the summons in this case indicated an Arlington, Virginia address (DE 27) and the return of service indicated he was served there (DE 27-1). Yet the Amended Complaint alleged that Mr. Dolan was a resident of New York. The Trump lawyers' answer:
[I]t must be noted that Charles Dolan is an incredibly common name, and Plaintiff's counsel's traditional search methods identified countless individuals with said name across the country, many of whom reside in New York.
(DE 270 at 10). While alone not of great significance, this response reflects the cavalier attitude towards facts demonstrated throughout the case. . . .
Mr. Trump's lawyers claim "nearly all" of the allegations against Mr. Dolan were sourced directly from the Indictment brought against Igor Danchenko by special counsel John Durham. (DE 270-2 at 6). But this is simply not so. As was the practice throughout the Amended Complaint, Plaintiff cherry-picked portions which supported his narrative while ignoring those that undermined or contradicted it. Mr. Trump's lawyers persisted in this misrepresentation after being warned by the sanctions motion, and they doubled down on this falsehood in their response to the motion. . . .
I find that Mr. Trump's lawyers were warned about the lack of foundation for their factual contentions, turned a blind eye towards information in their possession, and misrepresented the Danchenko Indictment they claim as their primary support. The lawyers failed to conduct a pre-filing inquiry into the allegations against Mr. Dolan and have continued to advance Plaintiff's false claims based upon nothing but conjecture, speculation, and guesswork. This is precisely the conduct Rule 11 is intended to deter. . . .
Trump's lawyers also had problems with their legal theories:
Rule 11 sanctions are also warranted when a plaintiff's legal theories have no reasonable chance of success and cannot be advanced as a reasonable argument to change existing law. Massengale, 267 F.3d at 1301. Plaintiff's Amended Complaint is 193 pages in length, with 819 numbered paragraphs, 14 counts, and it names 31 defendants including Charles Dolan. As I stated in my Order entered September 8, 2022 (DE 267), none of these counts stated a claim upon which relief could be granted. Additionally, several of the defendants were not subject to personal jurisdiction, and there was not subject matter jurisdiction over the Federal Defendants. The Amended Complaint was, in its entirety, frivolous. Multiple substantive defects precluded Plaintiff from proceeding on any of the theories he advanced. . . .
And, the judge concluded, all this (and more) was reason to conclude the filings were made with an improper purpose
Not just initiated by a shotgun pleading, this was a shotgun lawsuit. Thirty-one individuals and organizations were summoned to court, forced to hire lawyers to defend against frivolous claims. The only common thread against them was Mr. Trump's animus.
Plaintiff deliberately misrepresented public documents by selectively using some portions while omitting other information including findings and conclusions that contradicted his narrative. This occurred with the Danchenko Indictment, the Department of Justice Inspector General's Report for Operation Hurricane, and the Mueller Report. It was too frequent to be accidental.
Every claim was frivolous, most barred by settled, well-established existing law. These were political grievances masquerading as legal claims. This cannot be attributed to incompetent lawyering. It was a deliberate use of the judicial system to pursue a political agenda.
The judge ordered the attorneys to pay $50,000 in sanctions and an addition $16,000 to cover one of the defendant's legal fees. At least one of the attorneys told the NYT she plans to appeal. Additional sanctions motions filed by other defendants from Trump's suit remain pending.
As many have pointed out, Ron DeSantis won the Florida Governor's race in 2018 in a squeaker, 49.6%-49.2%, and in 2022 in a blowout, 59.4%-40%. What's your sense, based on your knowledge of your fellow Floridians, of why this happened?
Note that I'm not asking here whether DeSantis is in reality a good governor, or whether he would make a good President, or the like. My question is why he's been so politically successful, at least as reflected in this election result (though his real or perceived accomplishments could of course bear on that). Obviously, one possible answer is that Charlie Crist was just an awful opponent, in a way that Andrew Gillum was not; naturally, I'd love to hear about that. But I don't want to prejudge the matter: I genuinely just want to get a sense, however impressionistic, of the secret of DeSantis's political success.
