Free Minds & Free Markets

Weekly Volokh Conspiracy Archive 2018 November 22-31

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Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures

The Court seems very likely to rule that the Excessive Fines Clause of the Eighth Amendment applies to state governments, and that at least some asset forfeitures violate the Clause. Potentially a big win for property rights and civil liberties.

Asset forfeiture.Asset forfeiture.

This morning, the Supreme Court heard oral argument in Timbs v. Indiana, an important asset forfeiture and property rights case. I wrote about the issues at stake here and here. The big questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is "incorporated" against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. If the answers to these two questions are both "yes," the Court could also potentially address the issue of what qualifies as an "excessive" fine.

Today's oral argument makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states. The justices also seem likely to rule that at least some state asset forfeitures violate the Clause. Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation. It is hard to say, however, what - if anything - the Court will do on the question of how to define "excessive." The justices could well decide to leave it to the lower courts, at least for the time being.

On the incorporation question, all the justices who spoke seemed to favor incorporating this right against the states. This is not surprising, since it would be anomalous to incorporate nearly all of the rest of the Bill of Rights against states (including other parts of the Eighth Amendment, such as the Excessive Bail Clause), yet leave out the Excessive Fines Clause. The justices seem to agree on this fundamental point. As Neil Gorsuch put it in today's argument, "[w]e all agree that the Excessive Fines Clause is incorporated against the states." Similarly, Justice Brett Kavanaugh asked Indiana Solicitor General Thomas Fisher: "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?"

A few parts of the Bill of Rights do remain unincorporated (most notably the Third and Seventh Amendments). But defending such omissions after almost everything else has already been applied to the states, seems like a losing cause. The Third Amendment has been ruled to be incorporated in multiple lower court decisions.

Fisher, in fact, made little effort to oppose incorporation of the Clause. Instead, he argued that, while it might be incorporated as a general rule, it should not be applied to "in rem" forfeitures of property (where the proceeding is technically against property allegedly used in a crime, rather than against the owner). On this theory, the Excessive Fines Clause applies to "punitive" fines that target the owner, but not civil forfeitures that seek to confiscate property without imposing any penalty on the owner as such.

The justices seemed skeptical of this argument, too. Among other things, it would enable states to impose massive penalties on defendants simply by relabeling fines as in rem forfeitures. As Justice Stephen Breyer explained, Indiana's theory would open up a giant loophole in the Excessive Fines Clause: "what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy [he was driving]?" Fisher was forced to concede that would indeed be permissible under his approach. He even admitted it would apply if the person charged with speeding was only 5 MPH above the speed limit.

As Justices Gorsuch and Sonia Sotomayor pointed out, modern civil asset forfeitures have a massive punitive component, which cannot be eliminated simply by labeling them as "in rem" proceedings. Similarly, Justice Ruth Bader Ginsburg emphasized that "whether you label it in rem or in personam, let's remember that .. things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things."

Last year, Justice Clarence Thomas (who, as is his usual oral argument practice did not speak today), wrote an opinion in which he urged the Supreme Court to take up the asset forfeiture issue and emphasized that "Modern civil forfeiture statutes are plainly designed, at least in part, to punish the owner of property used for criminal purposes" and suggested that the Court should "align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation." Presumably, that includes subjecting civil forfeitures to the constraints of the Excessive Fines Clause.

Various justices also noted that the Supreme Court has already ruled, in Austin v. United States (1993), that some federal in rem forfeitures are covered by the Excessive Fines Clause - thos that are "punitive" in nature. If the Clause is incorporated against the states, the same logic should apply to state forfeitures, as well.

Unlike the issue of incorporation, the Court may not be unanimous on the question of whether and to what extent the Clause applies to state in rem civil forfeitures. But it seems highly likely there will be a majority in favor of applying the Clause to at least some substantial category of such state forfeiture cases. At the very least, Gorsuch, Sotomayor, Thomas, Ginsburg, and Breyer all seem inclined in that direction (in Thomas' case based on his earlier statements rather than anything said today).

The justices seemed much more uncertain about the question of what exactly qualifies as an "excessive" fine in the forfeiture context. Many of the questions posed to Wesley Hottot, counsel for Timbs, addressed this very issue. It is indeed a tough question, and it's possible the justices will not try to settle it, but instead leave it to the lower court. As Justice Elena Kagan put it, "it just seems as though there are two questions. And one question is incorporating the right, and the other question is the scope of the right to be incorporated." The Supreme Court could address the definitive of "excessive" more fully at some point in the future, after lower state and federal courts have had a chance to weigh in.

In my view, the Timbs case itself should be fairly easy to decide. In United States v. Bajakijian, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." This is hardly a precise standard, and it may often be hard to tell whether a forfeiture is "grossly disproportionate" or not. But Timbs seems clearly on the "gross" side of the line. The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000 - a very large disparity. But there are likely to be cases where things are much less clear.

Even if the justices punt on the excessiveness issue, a ruling that incorporates the Excessive Fines Clause against the states and holds that the Clause applies to at least some substantial number of civil asset forfeitures would be an important victory for civil liberties and property rights. The asset forfeiture system has led to serious abuses that especially victimize poor and minority property owners. If the Timbs case ends up curbing those abuses, it would also be a notable success for the broad cross-ideological coalition backing Timbs, including such varied groups as the ACLU, the Chamber of Commerce, the NAACP Legal Defense and Educational Fund, and the Pacific Legal Foundation, among others.

NOTE: Timbs is represented by the Institute for Justice, a leading public interest law firm with which I have longstanding ties. Among other things, I have worked with them on a number of other property rights cases. However, I have no involvement in this case. IJ's website has a lot of interesting information on the background of the case here.

UPDATE: I have made a few minor additions to this post.

Baker's Law of Evil Technology

“You’ll never know how evil a technology can be until the engineers deploying it fear for their jobs” in Episode 241 of the Cyberlaw Podcast

This episode's should be titled "Baker's Law of Evil Technology," as it explains Twitter's dysfunctional woke-ness, Yahoo's crappy security, and Uber's deadly autonomous vehicles. Companies with lots of revenue can afford to offer benefits that they don't much care about, including protection of minority voices, network security, and, um, not killing people. But as Uber's travails show, all that gets tossed out the window when corporate survival is at stake. And here's Baker's Law in action: Airline algorithms that deliberately break up families sitting on the plane so they can charge to put the kids back in the same row.

I do a mini-interview of Adam Candeub, who has disclosed that the supposedly populist, supposedly Silicon-Valley-skeptical Trump Administration has proposed a massive and antidemocratic subsidy for conservative-censoring social platforms. Worse, it's written into the virtually unamendable NAFTA 2.0. I rant (briefly) about it and pray that Congress kills the provision in the lame duck.

Merrick Garland may now be available. But, we ask Jamil Jaffer and Gus Hurwitz, is a Facebook Supreme Content Court a good idea?

Speaking of Facebook, even 98-lb weaklings seem to be kicking sand in the company's face. I lay out the latest, incredible tale about how an app that finds all your friends' bikini pics ended up spurring an international breach of US confidentiality orders – at the behest of the UK Parliament's serjeant at arms. And when I say it's an incredible tale, I mean just that; the story told by the participants is extraordinarily hard to believe.

Jamil and Gus note that Commerce has begun identifying an enormous list of "emerging" technologies to be restricted for export. Is this a kind of defense-industrial policy? And will it work? The panel disagrees.

Paul Rosenzweig reports that Airbnb now has its own (woker-than-thou, naturally) foreign policy. He thinks it may violate a host of state anti-BDS laws.

Nick Weaver gives us the latest Bear Facts. Both Cozy and Fancy are back with a vengeance – and not much concern about avoiding attribution.

Download the 241st Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

GM Will Shut Down Factory Built on Land Seized in Controversial 1981 Poletown Taking

The factory stands on land seized in a taking that forcibly displaced over 4000 people, and attracted widespread widespread opposition. The lessons and legacy of the Poletown case remain relevant today.

Protestor speaks out against the 1981 Poletown condemnations.Protestor speaks out against the 1981 Poletown condemnations.

Yesterday, General Motors announced the planned closing of five plants in the US and Canada. One of the factories that will be shut down is in Hamtramck, Michigan. The plant was originally built as a result of the 1981 Poletown condemnations, in which the City of Detroit used eminent domain to forcibly displace some 4000 people:

Maybe the naysayers were right all along.

General Motors' decision to close its Hamtramck assembly plant recalls one of the most bitter development controversies in Michigan's history. Closing the plant will no doubt open old wounds — and raise anew questions of who benefits from such massive urban revitalization projects like the Hamtramck plant....

By the early 1980s, then-Mayor Coleman Young was seeking to create jobs for economically distressed Detroit. He agreed to support General Motors' plan to build its new assembly plant on the border of Detroit and Hamtramck.

But the more than 300-acre site was home to a Polish neighborhood known as Poletown. It featured about 4,000 residents, more than 1,000 houses, several Catholic churches and more than 100 businesses.

That neighborhood stood in the way of GM's plant. In a bold and hotly contested move, officials used government's eminent domain powers to seize and raze those properties on GM's behalf.

It made national news, got people like consumer advocate Ralph Nader involved, and the many protests included a nearly monthlong sit-in at the neighborhood's Immaculate Conception Church that police eventually broke up with arrests.

The opponents took their case to the Michigan Supreme Court, which, in 1981, decided to back the GM project. The court said that taking property from one private owner to give to another private owner in the name of economic development was an acceptable use of eminent domain.

The closure of the plant some 37 years after the Poletown condemnations were upheld in court doesn't by itself prove that the takings were unjustified. We cannot expect any factory to remain open forever - and indeed keeping unprofitable facilities open actually damages the economy in the long run. What does undermine the "economic development" rationale for the Poletown condemnations is that the use of eminent domain destroyed far more value than it created. As I described in a 2004 article about the Poletown case and its aftermath, the new factory never created anything close to the 6000 jobs promised by GM and city officials. On the other hand, an enormous amount of harm was caused by the displacement of 4000 people, and the destruction of numerous homes, businesses, churches, and schools. In addition, local, state, and federal governments spent some $250 million in public funds on the project (GM paid only $8 million to acquire the land). That money could have been better spent elsewhere. Poletown and other similar cases demonstrate that the use of eminent domain to forcibly displace people for private development projects is both unjust and likely to harm local economies more than it benefits them.

The Poletown takings attracted widespread opposition on both left and right. Conservatives and libertarians denounced the violation of private property rights. Left-wing critics attacked the seizure of property belonging (mostly) to working and lower-middle class people for the benefit of a powerful corporation. A small but gradually growing group of lawyers and legal scholars began to rethink the then-dominant view that almost any supposed public benefit qualifies as a "public use" sufficient to authorize the use of eminent domain under state and federal constitutions.

Protests against the Poletown takings failed to prevent authorities from going forward with the condemnations, or persuade the Michigan Supreme Court to strike them down. But the widespread opposition, combined with the poor results of the project, ultimately helped produce some beneficial change. In County of Wayne v. Hathcock (2004), the Michigan Supreme Court unanimously overruled Poletown and held that takings for private "economic development" violate the state constitution because they are not genuine "public uses." Several other state supreme courts have issued similar rulings since then.

In its controversial 2005 ruling in Kelo v. City of New London, the US Supreme Court upheld "economic development" takings under the Public Use Clause of the Fifth Amendment to the federal Constitution. But the ruling was a close 5-4 decision, and Justice Sandra Day O'Connor's much-quoted dissent drew extensively on the Michigan Supreme Court's reasoning in Hathcock.

The Kelo decision resulted in an even larger negative public reaction than Poletown. Some 45 states (including Michigan) adopted reform laws limiting the use of eminent domain, and several state courts rejected Kelo's interpretation of the federal constitution as a model for their application of their own state public use clauses. The widespread negative reaction featured the same sort of unusual cross-ideological coalitions first evident in the opposition to the Poletown takings. It was a rare situation where libertarians, the NAACP, Bill Clinton, Bernie Sanders and Rush Limbaugh were all on the same side.

There is a good chance that Kelo will ultimately be overruled, just like Poletown was. For reasons I explained in my book about Kelo and its aftermath, the ruling is badly flawed from the standpoint of both originalist and living constitution approaches to constitutional theory.

Much progress in curbing eminent domain abuse has been made since Poletown. But we still have a long way to go. Many state post-Kelo reform laws (though not those adopted in Michigan) actually impose few or no meaningful constraints on takings. And some jurisdictions continue to use eminent domain to seize property for dubious private development projects. The Foxconn case in Michigan's neighbor, Wisconsin, is a notable ongoing example. In addition, more needs to be done to constrain "blight" takings and pipeline condemnations. Still, I am guardedly optimistic that we can continue to gain ground on this issue.

The Poletown residents who bravely resisted the destruction of their neighbhorhood ultimately failed to save their homes. But they did help start a movement that has done much to prevent similar injustices elsewhere.

UPDATE: It is worth pointing out that the same federal government that helped pave the way for the Hamtranck factory by subsidizing the Poletown takings, also hastened its demise. President Trump's ill-advised steel tariffs greatly increased production costs at US auto factories, which in turn likely played a role in GM's decision to close down several US-based plants.

UPDATE #2: I should perhaps note that I wrote an amicus brief in County of Wayne v. Hathcock, on behalf of the Institute for Justice and the Mackinac Center for Public Policy.

Is Kids Climate Case Coming to an End?

The "trial of the century" may not happen after all.

On the eve of Thanksgiving, a federal district court judge may have conceded that there will be no federal trial in a case to force the federal government to take more aggressive action to curb greenhouse gas emissions so as to forestall global climate change. After a not-too-subtle rebuke from the Supreme Court and U.S. Court of Appeals for the Ninth Circuit, the trial court judge in Juliana v. U.S. placed the planned trial on hold in order to allow for an interlocutory appeal of the court's denial of the federal government's motion to dismiss the case. This action came in response to a none-too-subtle rebuke from the Supreme Court suggesting the trial court was a bit out of line -- a message that does not bode well for the plaintiffs' claims.

The Juliana case is likely the most ambitious and aggressive climate change suit filed to date. Filed on behalf of children who are not yet able to vote, the suit's claim is that by failing to control the emission of greenhouse gases, the federal government has violated the plaintiffs's substantive due process rights to life, liberty, and property, and failed to uphold its "public trust" obligation to hold certain natural resources in trust for the people and for future generations.

However serious the threat posed by climate change -- and it is quite serious -- these are audacious and aggressive claims. It is also not clear that they are the sort of question that can be adequately adjudicated in federal court. Accordingly, the federal government sought to have the claims dismissed on multiple grounds, including that the plaintiffs lacked standing to sue, that their claims presented nonjusticiable political questions and the failure to state a claim for which relief could be granted.

After the district court denied the government's motion to dismiss, the government immediately sought leave to file an interlocutory appeal, which the district court also rejected.

Faced with the prospect of expansive and intrusive discovery requests -- and a looming trial -- the federal government sought relief in the form of a writ of mandamus and a stay of the proceedings from the Supreme Court to force the trial court back into line. This was an aggressive move, to be sure, but one the Solicitor General's office believed was warranted given the unprecedented nature of the plaintiffs' claims and the trial court's unwillingness to allow its initial decisions to be challenged.

The SG's aggressive response to the trial court's intransigence paid off with a November 2 order from the Supreme Court. While the Court did not grant the government's motions, it made very clear that a majority of justices thought the district court was out of line. A stay of the proceedings was premature, the Court's order explained, because there was still an opportunity for the U.S. Court of Appeals for the Ninth Circuit to provide "adequate relief." This was not-so-subtle hint that the Ninth Circuit heard loud and clear, issuing its own stay of the proceedings on November 8 and inviting the district court to reconsider its refusal to allow interlocutory review.

The actions taken by the Supreme Court and Ninth Circuit left the trial court little alternative but to reverse course. In her order, Judge Aiken tried to defend her handling of the case, but it does not go very well. After recounting the proceedings to date, the judge identifies the relevant legal standards for an interlocutory appeal, thereby demonstrating how her initial decision was in error.

With respect to the question of interlocutory appeal, appellate review is generally available only after a final judgment has been entered by a district court. 28 U.S.C. § 1291. The Interlocutory Appeals Act, 28 U.S.C. § 1292(6), provides a limited exception to that requirement: "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, [s]he shall so state in writing in such order." 28 U.S.C § 1292(b). "Even where the district court makes such a certification, the
court of appeals neve1theless has discretion to reject the interlocutory appeal[] and does so quite frequently." James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 (9th Cir. 2002) (citing to 16 Wright, Miller & Cooper § 3929, at 363).

Congress did not intend district courts to certify interlocutory appeals "merely to provide review of difficult rulings in hard cases." US. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). Rather such ce1tification should be granted only "in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation." Id. . .

The district court should have seen this coming. The Juliana case has regularly been trumpeted as the "trial of the century," a climate Scopes trial, to demonstrate the urgency of climate change and force federal action. As Judge Aiken noted in her denial of the government's motion to dismiss, this case "is of a different order than the typical environmental case." Indeed, to recite the underlying legal arguments -- that there is a judicially enforceable constitutional right to federal climate control under some combination the public trust doctrine and substantive due process -- and to consider the relief plaintiffs sought is to make plain the ambitious and unprecedented nature of the plaintiffs' claims, and to make plain the district court's error in denying the prior request for an interlocutory appeal. There is no question but that there is "substantial ground" to question the district court's initial ruling on multiple dispositive motions that could (and, indeed, likely will) bring this litigation to an end. If this case did not satisfy the standard for an interlocutory appeal, it's not clear what case ever could.

Judge Aiken, however, is unbowed. Her order continued:

The function of trial courts in our judicial system is to initially consider the myriad evidence and legal issues offered by the parties and then refine them to their most essential form, rendering judgment and relief as the law allows. Our judicial system affords district courts the respect of operating under an assumption that such courts do not "insulate hotly contested decisions from [] review simply by fast-tracking those decisions and excluding them from its published determination." Indep. Producers Group v. Librarian of Cong., 792 F.3d 132, 138 (D.C. Cir. 2015). Here, the Court has deliberately considered all motions brought by the parties, and its decisions are accessible for appellate scrutiny. . . .Trial courts across the country address complex cases involving similar jurisdictional, evidentiary, and legal questions as those presented here without resorting to certifying for interlocutory appeal. As Justice Stewart noted, "the proper place for the trial is in the trial court, not here." Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart, J., concurring.)

Importantly, the Supreme Court has recognized that "[p]ermitting piecemeal appeals would undermine the indepe1idence of the district judge[.]" Id. Additionally, ordinary adherence to the final judgment rule is in accordance with the sensible policy of "avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate
appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." Id. (quoting Cobbledick v. United States, 309 U.S. 323,325 (1940)). The Court notes again that this three-year-old case has proceeded through discovery and dispositive motion practice with only trial remaining to be completed.

This Court stands by its prior rulings on jurisdictional and merits issues, as well as its belief that this case would be better served by further factual development at trial. The Court has, however, reviewed the record and takes particular note of the recent orders issued by the United States Supreme Court on July 30, 2018, and November 2, 2018, as well as the extraordinary Order
of the United States Court of Appeals for the Ninth Circuit in United States v. USDC-ORE, Case No. 18-73014 issued on November 8, 2018. At this time, the Court finds sufficient cause to revisit the question of interlocutory appeal as to its previous orders, and upon reconsideration, the Court finds that each of the factors outlined in § 1292(b) have been met regarding the previously mentioned orders. Thus, this Court now exercises its discretion and immediately certifies this case for interlocutory appeal. The Court does not make this decision lightly. Accordingly, this case is STAYED pending a decision by the Ninth Circuit Court of Appeals.

The question now will be what issues the Ninth Circuit wants to hear on appeal. There are multiple threshold issues from which to choose, including standing and the political question doctrine, as well as the viability of the plaintiffs' legal theory. Whatever path the Ninth Circuit takes, I suspect it will not be good for the plaintiffs, as it is clear this case now has the Supreme Court's attention, and it is unlikely to look favorably on the merits of the plaintiffs' claims. So, in some sense, the question for the plaintiffs is likely how they would prefer to lose. The choice matters because judgments on some issues, such as standing, could effect the viability of future climate-based claims in the future. By overplaying the plaintiffs' hand, Judge Aiken may have actually set back the cause of using the courts to advance climate policy -- or so it seems right now.

The developments in the Juliana case were not the only Thanksgiving weekend climate change developments. On Friday, the federal government released the latest National Climate Assessment, which paints a none-too-pretty picture of what global climate change has in store if atmospheric concentrations of greenhouse gases are not stabilized. Yet however much the report suggests action on climate change is needed, the Juliana developments suggest that those who think the remedy is to be found in federal court may be looking for love in all the wrong places. Meaningful climate policy will have to come from the political process, and that will remain a long, hard slog.

More for the "Who Cares About Due Process For Sex Offenders?" File

Q: Can the federal government hold people in custody indefinitely when they have not been charged with, or convicted of, any crime?

If my posting a few days ago ("Denying Bail") on the unconstitutionality of an Arizona statute categorically denying bail to individuals charged with sexual assault didn't convince you that our current legislative war on "sex offenders" is careening off the constitutional rails and posing a real threat to our civil liberties, you might want to have a look at US v. Welsh, the subject of a recently-filed cert petition now before the Supreme Court.

Under the federal Sex Offender Registration and Notification Act (SORNA), 18 USC § 4842-48, the Attorney General or the Director of the Federal Bureau of Prisons may designate any individual who is "in custody of the Bureau of Prisons" as a "sexually dangerous person," defined as someone who has "engaged or attempted to engage in sexually violent conduct or child molestation ... [and] suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released."

A court must then hold a hearing, and if it finds "by clear and convincing evidence that the person is a sexually dangerous person, ... it shall commit the person to the custody of the Attorney General." An individual so designated can be held in custody indefinitely, to be released when he is deemed (based on required annual examinations) to no longer be a "sexually dangerous person."

William Welsh has a number of convictions for child molestation and sexual abuse dating back to 1979. In 2011 he was no longer in custody, having served his required prison and probationary sentences. He was, however, required to register on Oregon's Sex Offender Registry because of his prior convictions. When he traveled to Belize in 2011 and failed to update the address listed on his registration, he was charged, and pled guilty, to violating SORNA's registration requirements - a felony - and he was sentenced to 673 days in prison.

A few weeks prior to his release, the Attorney General designated him a "sexually dangerous person"; the reviewing court agreed, and he was committed to Butner Federal Correctional Institution in North Carolina. He has been there ever since.

In 2016, however, his conviction (for having failed to update his registration) was vacated, after the Supreme Court, in US v. Nichols, 136 S.Ct. 113, held that SORNA did not require a person to update his registration when he was traveling to a foreign country.

So he petitioned for a release from custody, arguing that because he had not lawfully been "in custody" of the Bureau of Prisons - he was, once his conviction was overturned, presumed, like the rest of us, to be innocent of any crimes - he could not, lawfully, have been subject to the commitment proceeding for "sexually dangerous persons" in the first place.

But his request for release was denied, first by the federal district court and then by the 4th Circuit [opinion here].

Our friends at the Cato Institute have submitted a truly outstanding brief [available here] in support of Welsh's cert petition, and of his claim that he is being held unlawfully, which eloquently describes why this case matters:

This case is the first time in the modern era that the Federal Government has successfully asserted a continuing power to civilly commit an individual who has been neither lawfully charged with nor convicted of a federal crime. Absent a lawful basis for custody, that power inheres in the several States. The Federal government has no roving authority to initiate involuntary civil-detention proceedings....

It cannot be that the Federal Rules and our system of justice are so stunted that they would permit a constitutional violation to persist indefinitely, without any apparent cure. The Federal Government's sole response is to say that in seeking to indefinitely confine Mr. Welsh, it acted to help protect the public. But the Federal Government's motivesw do not matter; what matters is whether the Federal Government acted pursuant to a power delegated to it by the People under our Constitution. And that question persists no matter how unpalatable we may find the underlying issue.

Nicely put. I would only add: Mr. Welsh may well be a terrible person. But we do not lock people up - even terrible people - unless and until they have been charged with violating the law and have been found, beyond a reasonable doubt, to have done so by a jury of their peers.

It's pretty fundamental to our whole system. It sometimes leads to "unpalatable" consequences, but we live with them because of the importance of the underlying principle, for all of us.

The Case that Started All the Fuss

Judge Tigar's (ND CA) asylum decision is an especially inappropriate target for Trump's ranting, given the weakness of the Administration's position on the legal issues raised by the case.

Given the furor sparked by President Trump's disgraceful "Obama judges" tweet, and Justice Roberts' extraordinary (and most welcome) stern rebuke [see here], it is easy to lose sight of the legal issues involved in the case, and in the opinion by Judge Tigar [available here] that so enraged the President.

It's actually not all that complicated. On November 9, the President issued a Presidential Proclamation [available here], and DHS announced a series of new rules, that had the combined effect of making "any alien who enters the United States across the southern border" categorically ineligible to bring a claim for asylum, unless they entered the country at a "port of entry" - i.e., a US Border and Customs Patrol-operated facility - on the US-Mexico border.

The Immigration and Naturalization Act provides:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with [the procedures set forth elsewhere]." 28 U.S.C. § 1158(a) (emphasis added)

That's pretty much it. You be the judge. I'm no expert in Immigration law, and I suspect you're not either. But it doesn't look that complex. Congress has clearly said, in the statute, that "any alien" arriving at the border is eligible to apply for asylum, whether or not he/she enters at a "point of entry." The Executive Branch has declared that for certain aliens - those entering across the US-Mexico border - that will no longer be the case.

This what Trump is so outraged about? This is Separation of Powers 101. Congress (with, of course, Presidential approval) makes immigration law; the President is charged with "faithfully executing" that law. Here, he has overriden an express Congressional directive regarding the eligibility of aliens for asylum. He can't do that, on his own.

It's beyond ironic that Trump has chosen this case for a rant about how badly he is treated by all those "Obama judges" there on (or in) the 9th Circuit. He loses this case before a "Bush judge" or a "Trump judge" or a "Reagan judge" - i.e., before any judge who takes the Constitution at all seriously. Trump doesn't much like the Separation of Powers, I get that - and he's surely going to be liking it a lot less now that the Democrats control the House. But he better learn to live with it, for all of our sakes.

This Week, Supreme Court Will Hear an Important Case that Could Help Curb Asset Forfeiture Abuse

The case both addresses important legal issues, and could have substantial practical implications.

On Wednesday, the Supreme Court will hear oral arguments in Timbs v. Indiana, an important property rights/asset forfeiture case. George Will recently published an excellent Washington Post column describing some of the issues at stake:

Tyson Timbs made a mistake, but not one as important as Indiana's Supreme Court made in allowing to stand the punishment the state inflicted on him. He was a drug addict — first with opioids prescribed for a work-related injury, then heroin — when his father died. He blew the $73,000 insurance payout on drugs and a $41,558 Land Rover, which he drove when selling $225 worth of drugs — two grams of heroin — to undercover police officers. Timbs's vehicle was seized and kept, which amounted to a fine more than 184 times larger than the sum involved in his offense....

The seizure was done under Indiana's version of civil forfeiture laws, which allow governments to seize property used in the commission of a crime. As they are often used, such laws are incentives for abusive governments, because the entity that seizes the property frequently is allowed to profit by keeping or selling it. Lucrative law enforcement will become lawless.

Under the "incorporation" doctrine, the Supreme Court has explicitly applied, through the 14th Amendment, most of the Bill of Rights' protections, piecemeal, against states' behaviors....

But although two federal judicial circuits and at least 14 state high courts apply the excessive-fines clause [of the Eighth Amendment] to the states, and although seven times the court (or two or more justices writing separately) has said that the Eighth Amendment as a whole applies to the states, it has never had an occasion to explicitly apply the excessive-fines clause....

I discussed Timbs in greater detail in this post, written back in June, when the Supreme Court first decided to hear it:

[T]he case will address the question of whether the Excessive Fines Clause of the Eighth Amendment applies against states, as well as the federal government. If the Supreme Court decides that the Clause does apply against the states, it will also have to consider exactly what kinds of fines qualify as "excessive" and to what extent the Clause applies to asset forfeitures, as well as more conventional fines....

[T]he Bill of Rights was originally intended to restrict only the federal government. But, as leading scholars on both right and left have come to recognize, the framers of the Fourteenth Amendment sought to apply the Bill of Rights against the states, as part of their more general effort to curb state governments' abusive mistreatment of minorities and others, most notably recently freed African-American slaves. As Eugene describes in some detail, the Supreme Court initially refused to apply the Bill of Rights to the states, even after the Fourteenth Amendment. But has gradually ruled that nearly all of the individual rights listed there are in fact incorporated. Multiple lower court decisions have ruled that the Third Amendment - one of the few provisions not yet addressed by the Supreme Court - should be incorporated, as well.

Rejecting incorporation of the Excessive Fines Clause would be an extreme anomaly at a time when the Court has already incorporated both the rest of the Eighth Amendment (which forbids "excessive bail" and "cruel and unusual punishment"), and also every other provision of the Bill of Rights that protects property rights. It would be especially strange to conclude that the Excessive Bail Clause is incorporated while the Excessive Fines Clause is not....

The more difficult questions raised by Timbs are the extent to which the Excessive Fine Clause covers asset forfeiture as well as ordinary criminal fines, and what counts as "excessive."

Asset forfeiture abuse is a serious problem that often victimizes innocent people and particularly harms the poor. For these reasons, among others, it has attracted widespread opposition on both right and left....

Asset forfeiture technically differs from a fine because the former involves seizure of specific property that was allegedly used in the course of committing a crime, rather than imposition of punishment against a perpetrator (which, if it takes the form of a fine, can be paid using any assets the defendant owns). Nonetheless, the Supreme Court has already ruled that at least some asset forfeitures are covered by the Clause in the 1998 case of United States v. Bajakajian...

The last big issue that the Court may have to address in Timbs is what counts as an "excessive" fine. In Bajakajian, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." This is far from a precise standard, and it often will not be easy to tell where mere ordinary disproportion ends, and the "gross" kind begins.

Timbs itself may be an easy case when it comes to "grossness." The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000 - a very large disparity. But if the Excessive Fines Clause is applied against the states, which prosecute the vast majority of criminal cases (and the lion's share of civil asset forfeitures, as well), federal courts are likely to have to deal with much closer cases in the future....

Like the asset forfeiture issue more generally, the Timbs case unites a wide range of groups across the political spectrum. The property owner is being represented by the Institute for Justice, a prominent libertarian public interest law firm. Organizations as varied as the ACLU, the Chamber of Commerce, the NAACP Legal Defense and Educational Fund, and the Pacific Legal Foundation, have all filed amicus briefs supporting Timbs. This unusual coalition reflects the fact that asset forfeitures are an affront to property rights, and disproportionately victimize the poor and racial minorities. However, asset forfeitures did enjoy the strong support of recently departed Attorney General Jeff Sessions, who last year reinstituted a federal policy that helps state and local law enforcement agencies circumvent state limitations on forfeiture and keep a hefty share of the profits for themselves. Sessions' policy drew widespread bipartisan opposition. But reforms that passed the House of Representatives by unanimous vote have stalled in the Senate.

NOTE: The defendant in Timbs is represented by the Institute for Justice, a leading public interest law firm with which I have a longstanding association. Among other things, I have worked with them on a number of other property rights cases. However, I have no involvement in this case. IJ's website has a lot of interesting information on the background of the case here.

Short Circuit: A Roundup of Recent Federal Court Decisions

Covered cheeks, cheeky hyphens, and uncovered booking photos.

Friends, federal law gives private natural gas pipeline companies the power of eminent domain to take land—but not the power to take immediate possession of land. Can courts issue injunctions granting immediate possession despite Congress' refusal to delegate that power? IJ argues no in this petition for rehearing filed with the Third Circuit.

  • Man acquitted of felony theft by reason of insanity is committed to Augusta, Maine mental hospital where he spends 10 years. He's then moved to a group residential program, but after a year, medical staff decide he needs to be recommitted. Man does not take the news well, whips knife out of his pocket, starts stabbing himself. Police officer shoots him three times without warning. Qualified immunity? First Circuit: Not if a jury agrees with the man's version of events. Go to trial.
  • Fifth Circuit (September): A Louisiana law that requires erotic dancers between the ages of 18 and 20 to fully cover their breasts and buttocks is probably unconstitutionally vague. Fifth Circuit (on panel rehearing): Just kidding. Dancers may "want to wear the bare minimum, but the Constitution does not guarantee them that level of specificity." The authorities can continue enforcing the law while the suit proceeds.
  • Woman serving time (for drug possession) agrees to testify in trial of man who allegedly raped her 12 years earlier. Officials transfer her to Harris County, Tex. jail to await the trial. Meanwhile, her release date arrives, but prosecutors and jail officials keep her in custody for an additional 53 days. Fifth Circuit: Tough. No liability for anyone.
  • Plaintiff wins $1,000 in statutory damages for technical violation of Fair Debt Collection Practices Act. (Debt collector illegally used the words "credit bureau" in its business name.) After plaintiff's lawyers seek $130k in fees, district court awards them the princely sum of $0. Fifth Circuit: Just so. While fees are ordinarily mandatory, "special circumstances" obtain here: The record suggests that the plaintiff colluded with her lawyers to generate this "outrageous" fee-heavy lawsuit in Texas instead of in her home state of Louisiana. We also deplore "the poor draftsmanship that permeates the pleadings," the court notes (before honoring Muphry's law with a cheekily errant hyphen in the next sentence).
  • Allegation: Mississippi prisoner needs hip replacement surgery; prison medical administrator refuses to pay for it. Fifth Circuit: No qualified immunity for that. You can't be deliberately indifferent to a prisoner's medical needs. On remand, the district court should seriously consider giving the prisoner a lawyer. Concurrence: But there's also evidence that the surgery didn't happen because of the prisoner himself. The district court should seriously consider that too.
  • Was it unconstitutional for Dearborn Heights, Mich. officials to deny a conservative pundit's Freedom of Information Act request for booking photos of a Muslim woman without her headscarf? No, answers the Sixth Circuit, in an opinion not much longer than this summary.
  • Allegation: For years, the nation's third-largest cable TV distributor declined to distribute TV networks operated by an African-American-owned company. Moreover, the cable distributor's executives put off meetings, proffered disingenuous explanations for its refusal to do business, and told African-American protesters outside the distributor's HQ "to get off welfare." Ninth Circuit: If discriminatory intent played any role—even as a single factor among several—in the distributor's decision not to carry the networks, then the distributor violated federal law. And while we're here, that federal law does not violate the First Amendment.
  • Residents challenge Los Angeles' redistricting of Council District 10, claiming it was impermissibly race-based. Ninth Circuit: Dismissal affirmed. Residents had to show that redistricting decisions were motivated predominantly by race. And, says the court, it's not enough that the official who drafted the initial proposal might have been so motivated. Or that the L.A. Council president said that racial considerations were his "priority." Residents still couldn't show that those considerations predominated over the deliberations as a whole. Nor could the residents depose officials who were involved in the redistricting.
  • After anonymous 911 tip about armed man near shopping plaza, Indio, Calif. cop approaches man matching tipster's description. Man flees. Cop pursues, shoots man three times in the back. Ninth Circuit: There's a factual dispute about whether the fleeing man had a gun in his hand during the chase. For esoteric qualified-immunity reasons, the court can't immediately review that issue, so to trial it must go. But, the court adds, the cop's initial interaction with the man (pre-chase) was not clearly unconstitutional; the 911 call prompted enough suspicion for an investigatory stop.
  • American mother flees Panama with her infant sons without telling their Panamanian father. A federal court orders them returned. While custody proceedings are pending in Panama, the mother flees with them a second time. District court: In the two and a half years it took the father to locate them, they became so settled that an exception to the Hague Convention on child abduction applies; no need to return the boys. Eleventh Circuit: Return them.
  • Can a fax message from a gov't official asserting ownership over land constitute a "physical taking" of the land? No, says two-thirds of a Federal Circuit panel, in an opinion that reproduces a map from 1887 but sadly does not explain why people are still sending faxes. (Via @NY_Condemnation.)
  • Feds prosecute doctor for allegedly performing female genital mutilation upon nine children in Livonia, Mich. clinic. But does Congress have the power to enact the law banning the procedure? Eastern District of Michigan: No. Neither the Necessary and Proper Clause nor the Commerce Clause authorizes this law. This is local criminal activity that doesn't involve economic enterprise; it is for the states to regulate, not Congress. (Click here for local news coverage.)
  • Woman testifies that the father of her children beat her up, held a knife to baby's throat. She also states that she didn't want to testify, but prosecutors threatened to jail her and put her children in foster care if she didn't. The next day of the trial, she partially recants, says the man didn't hold a knife to the baby. He's convicted. She's indicted, pleads guilty to perjury, sentenced to probation. Georgia appeals court: No need to revisit the man's conviction. (Via @ASFleischman.)


A nice passage from Rogers & Hammerstein, which I heard on John McWhorter's excellent Lexicon Valley podcast.

"Diversity" is often a political label for things I disagree with (such as race-based preferences in university admissions); but, as with many such broad concepts, there's often a good deal of truth to it (at least in some of its versions) even if it's also misused.

One thing that I try to stress to my students is the reality of diversity: You can't be a good lawyer (or be good at sales, business, or many other things) without realizing that people -- clients, judges, jurors, witnesses, opposing counsel, and others -- may be very different from you, and may react differently than you might at first expect. They may differ in their culture (which is often linked to race or ethnicity), their sex, their religion, their politics, their educations, and in many other things.

You might wish for a more homogeneous environment, but your wishes don't really matter: It's not what you'll likely face. And even if you think a particular group is homogeneous, you're probably missing just how diverse they are in their views and attitudes.

In any event, I thought of this yesterday: I was listening to Prof. John McWhorter's superb Lexicon Valley podcast (or perhaps the superb Prof. John McWhorter's Lexicon Valley podcast, since so much of what he has done has been excellent), and he played a passage from one of Rodgers & Hammerstein's lesser known songs, All Kinds of People:

It takes all kinds of people to make up a world,
All kinds of people and things.
They crawl on the earth, they swim in the sea,
And they fly through the sky on wings.
All kinds of people and things,
And, brother, I'll tell you my hunch:
Whether you like them or whether you don't,
You're stuck with the whole damn bunch.


Hail to the Chief!

We really should, as Chief Justice Roberts suggests, be thankful for the "independent judiciary" on this Thanksgiving Day.

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."

Chief Justice John Roberts, 11/21/18.

Amen. I didn't want this Thanksgiving to pass without someone here on the Volokh Conspiracy giving a shout out to the Chief Justice for his statement yesterday, responding to President Trump's criticism of "Obama judges" in the 9th Circuit.

Nothing about the Trump presidency has been as disturbing as his unrelenting attack on the federal judiciary - starting all the way back at least as far as his comments during the campaign about the "Mexican judge" who was presiding over the Trump University lawsuit, up to his recent tirades against the 9th Circuit's "Obama judges." He is not the first President to get publicly angry at actions taken by the federal courts. But he is the first President to so relentlessly characterize judicial decision-making as an overtly partisan political act, where "Obama judges" issue their (politically-motivated) rulings - Boo-o-o! - and "Trump judges" issue their (politically-motivated) rulings - Ya-a-ay!. It's all just politics, played out in a courtroom.

His words have real consequences, and the consequences here are very serious and very troubling, even frightening. If Americans come to believe that federal judges are nothing more than partisan politicians wearing robes, that there are Democratic judges issuing Democratic decisions and Republican judges issuing Republican decisions, we are one step away from a very frightening precipice, one where Democrats believe they are entitled to disregard Republican decisions and Republicans believe they are entitled to disregard Democratic decisions.

Judicial systems can crumble, leaving nothing but power and might, force and terror, as ruling principles; they have done so, repeatedly, throughout human history. We should perhaps accept Chief Justice Roberts' invitation on this Thanksgiving day to be thankful that ours has not done so, and to speak out against, and resist, efforts to make it do so.

And Happy Thanksgiving to all!


And PS [added 11-22 @ 930AM]: In case you were wondering, as I was, where the rather curious phrase "do equal right" in Roberts' statement comes from, it is from the judicial oath that all federal judges must take. See 28 USC 453:

"Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, ------, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States. So help me God."