Constitutional Law Prof Blog

Trump Lawyers Gripe to House Intel Chair about Mar-a-Lago Docs Investigation

Former President Trump's lawyers wrote to House Intel Committee Chair Mike Turner to complain about DOJ's investigation into Trump's unlawful retention and mishandling of classified documents at Mar-a-Lago.

In a typo-ridden, ten-page letter, the lawyers argue, in short, that classified documents ended up at Mar-a-Lago because of a rushed document-review process at the end of the Trump presidency (and not because of any illegal behavior), that DOJ botched the investigation from its inception, and that the investigation is politically motivated. They argue that Turner's committee should take over (after an investigation and report by "the intelligence community") and seek "a legislative solution" to document-handling procedures for the White House and former presidents.

Then the lawyers write that "DOJ should be ordered to stand down." The letter doesn't specify who should do the ordering. But certainly the lawyers know this most basic separation of powers principle: A congressional committee cannot order DOJ stand down.

Court Curtails EPA Authority Under Clean Water Act

The Supreme Court today curtailed EPA's authority to regulate wetlands under the Clean Water Act. The sharply divided ruling is a victory for property owners and a blow to federal regulatory authority over certain wetlands.

The case, Sackett v. EPA, tested whether and how EPA could regulate wetlands that aren't connected on the surface to "waters of the United States." Five justices said that EPA could only regulate wetlands that are connected on the surface to "waters of the United States." (Two of the five would've limited the Act even further, so that EPA couldn't regulate any wetlands, unless they were actually navigable waters of the United States.) Four justices disagreed and argued that the CWA authorized EPA to regulate wetlands that were connected to waters of the United States, even if that connection wasn't on the surface.

All nine agreed that the lower court applied the wrong test.

The CWA prohibits the discharge of pollutants into "navigable waters," defined as "the waters of the United States" and waters that are "adjacent" to them. EPA regulations provide that "adjacent wetlands are covered by the Act if they 'possess a "significant nexus" to' traditional navigable waters." This means that wetlands are "adjacent" when they "neighbor" covered waters, even if the wetlands and the covered waters are separated by dry land.

The plaintiffs, Michael and Chantell Sackett argued that EPA's regulation violated the CWA when EPA ordered them "to restore the Site," including wetlands, after they backfilled their property to build a home.

The Court ruled for the Sacketts and agreed that EPA's regulation violated the CWA. The court held that the CWA authorizes EPA to regulate only those wetlands that are "as a practical matter indistinguishable from waters of the United States," such that it is "difficult to determine where the 'water' ends and the 'wetland' begins." This means that the CWA covers only those wetlands that have "a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands." 

The Court said that EPA needs "clear [statutory] language" if it seeks "to significantly alter the balance between federal and state power and the power of the Government over private property." The Court said that the CWA (even its use of "adjacent") didn't provide this clear authority. The Court also said that EPA's interpretation "gives rise to serious vagueness concerns in light of the CWA's criminal penalties," because the EPA's interpretation may not define the statute "with sufficient definiteness that ordinary people can understand what conduct is prohibited" and "in a manner that does not encourage arbitrary and discriminatory enforcement."

Justice Thomas, joined by Justice Gorsuch, argued that the CWA is even narrower, extending only to actually navigable waters of the United States--those that are "capable of being used as a highly for interstate or foreign commerce." Under this approach, the CWA probably wouldn't apply to any wetlands. He tied this standard to Congress's Commerce Clause power, and then took aim at the Court's Commerce Clause jurisprudence, arguing that today it "significantly depart[s] from the original meaning of the Constitution."

Justices Sotomayor, Kagan, Kavanaugh, and Jackson argued (in separate concurrences) that the Court's approach erroneously narrowed the CWA. They argued that "adjacent" waters under the CWA include not just "adjoining" wetlands (as the majority would have it) but also "wetlands separated from a covered water only by a man-made dike or barrier, natural river, berm, beach dune, or the like." Justice Kavanaugh (joined by Justices Sotomayor, Kagan, and Jackson) argued for this more expansive reading. Justice Kagan, joined by Justices Sotomayor and Jackson, went further, arguing that the Court erred in creating and applying the plain statement rule and that the Court (once again) mangled an environmental statute in order to achieve its preferred policy objectives.

 

 

 

 

 

 

County Violates Takings by Keeping Property Surplus Over Tax Arrears

The Supreme Court ruled today that a county violates the Takings Clause when it seizes and sells property for taxes due, but retains the surplus value above the outstanding tax bill. The ruling means that Hennepin County, Minnesota, owes property owner Geraldine Tyler the $25,000 surplus that it retained after satisfying her overdue tax bill.

The case, Tyler v. Hennepin County, arose when the County seized and sold Tyler's property after she failed to pay $15,000 in taxes. The County sold the property for $40,000 and kept the extra $25,000. Tyler sued, arguing that the County violated the Takings Clause.

A unanimous Court agreed. Chief Justice Roberts wrote that history and precedent both say that the government can't take more than it's owed, and that a taxpayer is entitled to the surplus.

Justice Gorsuch wrote a concurrence, joined by Justice Jackson, arguing that the lower courts also erred in dismissing Tyler's Eighth Amendment Excessive Fines Clause claim.

Law Firm Tells Senate Judiciary They Can't Impose Supreme Court Ethics Code

Gibson Dunn, the firm that represents Harlan Crow, wrote to Senate Judiciary Chair Dick Durbin that the Committee lacked authority to investigate Justice Thomas's relationship with Crow and to impose an ethics code on the Supreme Court.

That's some chutzpah.

The firm wrote that Crow wouldn't comply with the Committee's effort to investigate Crow's relationship with Justice Thomas. According to the firm, the Committee's investigation lacks a legitimate legislative purpose, because ultimately Congress cannot impose an ethics code on the Supreme Court--and therefore can't investigate in order to impose such a code. Again according to the firm, a congressional ethics code for the Court would impermissibly encroach on the singular constitutional role and standing of the Supreme Court.

The letter engages with the Necessary and Proper Clause--in particular, the argument that the Necessary and Proper Clause authorizes Congress to impose an ethics code on the Court. But it seems to engage only with the first part of the Clause. According to the letter, the Necessary and Proper Clause doesn't provide Congress with authority to impose an ethics code, because Congress doesn't have the underlying power to impose a code.

But even if that's right--and it's not at all clear that it is--it ignores the second part of the Clause: "The Congress shall have the power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Emphasis added.)

The move seems to put the ball back in the Senate Judiciary Committee's court, to subpoena Crow and then move to enforce the subpoena in the courts. That comes with some risk, of course: the Court (which is both a highly interested player and umpire in this separation-of-powers dispute) seems likely to side with Crow, based on its signals.

Public Employee Union Case Against Debt Ceiling Set for Hearing

U.S. District Judge Richard Stearns (D. Mass.) set a May 31 hearing date in the case brought by a public employee union challenging the constitutionality of the Debt Limit Statute.

The complaint in National Association of Government Employees v. Yellin alleges that

[t]he Debt Limit Statute is unconstitutional because it puts the President in a quandary to exercise discretion to continue borrowing to pay for the programs which Congress has heretofore duly authorized and for which Congress has appropriated funds or to stop borrowing and to determine which of these programs the President, and not the Congress, will suspend, curtail, or cancel altogether.

The plaintiffs argue that under the Anti-Deficiency Act, "the President does not have authority to suspend or cancel any laws or any programs that are, in fact, funded by Congress." Yet "the Debt Limit Statute has a retroactive effect and requires a reduction of operations of government approved by Congress, with no legislative direction as to which obligations to cancel."

In plain English, under the Anti-Deficiency Act and the Constitution the President must spend money validly appropriated by Congress, but the Debt Limit Statute (without raising the debt ceiling) prohibits the President from spending money appropriated by Congress. Given this reality, and given that the Fourteenth Amendment prohibits any person from questioning the validity of the public debt, "the Debt Limit Statute necessarily confers upon the Defendant President the unlawful discretion to cancel, suspend, or refuse to carry out spending approved by Congress, without the consent or approval of Congress as to how the President may do so, in order to pay the bondholders."

This approach doesn't hang its hat on the Fourteenth Amendment, at least not alone. Instead, it draws principally on the separation of powers--Congress's power to appropriate public funds, and the President's responsibility to spend those funds. The complaint say that if the Debt Limit Statute interferes with the President's duty to enforce congressional spending measures, then it's unconstitutional.

Can Minority Members on a Congressional Committee Sue to Get Agency Material?

The Supreme Court this week agreed to hear a case testing whether minority members on a congressional committee can sue to enforce their statutory right to obtain material from an agency.

But this isn't just any minority, and it's not just any agency material. The dispute arises out of congressional Democrats' efforts to obtain material from the General Services Administration about the Trump organization's lease with the Old Post Office for the Trump International Hotel.

In February 2017, the then-House Oversight Committee ranking member and seven other Democrats (but not a majority of the Committee, because Dems were in the minority) asked GSA for material related to GSA's 2013 lease of the Old Post Office building to Trump Old Post Office LLC. The members cited 5 U.S.C. Sec. 2954, which provides

An Executive agency, on request of the [Committee on Oversight and Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on [Homeland Security and] Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.

GSA declined; the members sued; and GSA argued that the members lacked standing.

The case, Maloney v. Murphy, now pits two theories of standing against each other. On the one hand, the members say that they have standing based on an informational harm--that they have a right to information (under Section 2954), and that the GSA denied them that information. This is a little like you or me seeking to enforce a FOIA request in court: a statute grants us a right to information, an agency declines to provide it, and we can sue. But the theory depends on members suffering an informational harm that is personal and individual to them (even if as members of Congress), and not a harm on behalf of Congress (or a committee of Congress) as a body. They point to Powell v. McCormack, among other cases, where the Court has held that a member of Congress has standing based on an injury that is particular to them as a legislator. The D.C. Circuit adopted this theory when it ruled that the members have standing.

On the other hand, GSA (then and now) says that individual members lack standing based on a harm to Congress, the House, or their committee. GSA points to Raines v. Byrd, where the Court held that individual members of Congress can't sue to challenge the Line Item Veto Act, because the harm went to Congress, not to the individual members.

The difference will likely turn on how the Court interprets Section 2954. If the Court reads the statute to authorize individual members to obtain agency material as individual legislators, to serve their individual legislative functions, then the Court will likely say that the members have standing. But if the Court reads the statute to protect the right of the committees to obtain information, it'll likely say they don't.

Supreme Court Dodges Thorny Section 230 Issue

The Supreme Court today dodged a claim that Section 230 of the Communications Decency Act protected Google from liability for recommending terrorist videos on its YouTube platform. At the same time, the Court said that Twitter wasn't liable for terrorist content on its platform under a federal law that creates liability for aiding and abetting terrorism.

The two cases--Gonzalez v. Google and Twitter v. Taamneh--arose when victims of terrorist attacks sued the platforms for allowing ISIS to post videos, and thus recruit members for terrorist activities. The plaintiffs in both cases claimed that the platforms aided and abetted terrorist activities in violation of federal law. Google countered that Section 230 shielded it from liability. (Section 230 says that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information by another information content provider.")

The Court ruled in Taamneh that Twitter did not "aid and abet" terrorist activities under federal law simply by allowing ISIS material on its platform. Because the plaintiffs' claims in Gonzalez were similar, the Court didn't reach Google's Section 230 defense; instead, the Court remanded the case for determination of liability in the first place in light of Taamneh.

As a result, we don't have a ruling on Section 230's application to interactive online platforms. The issue in Gonzalez was whether FaceBook acted simply as a neutral platform for third-party posts (in which case Section 230 would provide protection) or instead whether it added its own value to third-party content through its search-engine algorithms, recommendations, and other features (in which case Section 230 might not provide protection).

Lower courts have generally granted broad immunity to websites under Section 230. The lower court in Gonzalez relied on a common "neutral tools" test, which says that a website's algorithm that uses "neutral" sorting criteria for recommendations means that the website is simply publishing third-party content (and not transforming that content into its own communication), and thus gets Section 230 immunity.

The fact that the Court granted cert. in Gonzalez--on the Section 230 issue--suggested that it might have something significant to say. But at the same time, Taamneh always provided an off-ramp. In today's rulings, the Court took it.

Overdetention is One Thing; Getting Judicial Relief is Quite Another

The Fifth Circuit acknowledged yesterday that detaining a prisoner beyond their release date is a classic violation of due process. But it said that a prisoner's claim was barred by qualified immunity. This, despite a recent DOJ report finding "systemic overdetentions" by the Department and Department "deliberate indifference to the systemic overdetentions."

The case, Taylor v. LeBlanc, arose when the Louisiana Department of Public Safety and Corrections "overdetained" prisoner Percy Taylor. According to the court, "Department officials gave him credit for time served in pre-trial detention, but only for one (rather than both) of his two consecutive sentences." As a result, Taylor spent more than a year (a year!) longer in prison than he should have.

Taylor sued the Department secretary (LeBlanc), arguing that LeBlanc should have delegated authority to calculate release dates to an attorney, not to the non-attorney officials who misread the release-date law, and that LeBlanc's failure to do so was objectively unreasonable.

The court disagreed. It wrote that "Taylor does not point to anything that suggests the Constitution requires these determinations be made by attorneys." Taylor gets qualified immunity; case dismissed.

District Court Strikes California's Corporate Board Diversity Requirement

A federal district court yesterday ruled that California's corporate board diversity requirement is an unconstitutional racial quota.

The case, Alliance for Fair Board Recruitment v. Weber, tests California's requirement that publicly held corporations in the state have a minimum number of directors from designated racial, ethnic, and LGBTQ classes. Opponents argued that the requirement violated the Equal Protection Clause.

The district court agreed. The court ruled that the requirement as to race was an unconstitutional quota, and that the requirement as to sexual orientation and identity was not severable from the requirement for race. The result: the entire requirement fell.

Because the court said that the requirement was categorically unconstitutional as a quota, it declined to assess the requirement under strict scrutiny--and therefore to address the state's claim that the requirement was designed as a lawful affirmative action plan to remedy prior illegal discrimination.

Supreme Court Allows Ban on Assault-Weapons Sales to Remain in Place Pending Appeal

The Supreme Court today denied an application to halt bans on the sale of assault weapons and high-capacity magazines by Illinois and Naperville (a Chicago suburb) pending appeal. As is typical at this preliminary stage, the order is unsigned and provides no reasoning or analysis. There are no noted dissents.

The order means that Illinois's and Naperville's bans remain in place as the case goes before the Seventh Circuit. The order foretells nothing on the merits.

The case, National Association for Gun Rights v. Naperville, tests bans on assault weapons and high-capacity magazines by Illinois and Naperville. The lead plaintiff is a gun-shop owner in Naperville.

The district court denied the plaintiffs' motion for a temporary restraining order and preliminary injunction. Applying Bruen, the court ruled that "[t]he text of the Second Amendment is limited to only certain arms, and history and tradition demonstrate that particularly 'dangerous' weapons are unprotected." And "[b]ecause assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition."

The Seventh Circuit denied an injunction pending appeal.

The plaintiffs then asked the Supreme Court to halt the bans while they appealed on the merits to the Seventh Circuit. They argued that history and tradition support a ban only on "dangerous and unusual" weapons, and that AR-15-style weapons aren't "unusual" because so many people own them.

The state countered that the Second Amendment doesn't sufficiently clearly protect a right to assault weapons to satisfy the requirement for an injunction pending appeal. Naperville countered that the Second Amendment doesn't sufficiently clearly protect a right to sell assault weapons.

Sixth Circuit Applies Unconstitutional Conditions Takings Test to Nashville's Sidewalk Ordinance

The Sixth Circuit ruled that Nashville's requirement that landowners who seek building permits grant an easement and construct a sidewalk is subject to the unconstitutional conditions test, and not the regulatory takings test, under the Takings Clause.

The ruling, along with a key concession by Nashville, means that Nashville's sidewalk ordinance constitutes a taking, and that Nashville must provide just compensation (to be determined on remand). (That doesn't mean that every sidewalk ordinance, or the like, necessarily constitutes a taking, however, even under the unconstitutional conditions test. That's because Nashville didn't argue this point. More on that below.)

The ruling weighs in on a hot issue in the state courts around similar conditioned permit requirements: whether those requirements are subject to the (more rigorous) unconstitutional conditions test, or the (less rigorous) ordinary regulatory takings test. The Sixth Circuit ruled that Nashville's sidewalk ordinance is subject to the unconstitutional conditions test.

The case, Knight v. Metropolitan Government of Nashville, arose when, in order to create more sidewalks, Nashville required property owners who seek a building permit to grant an easement on their property and construct a sidewalk (or pay an "in-lieu" fee that the city would use to build sidewalks elsewhere). Property owners sued, arguing that the requirement constituted an uncompensated taking. In particular, they said that the sidewalk requirement constituted an unconstitutional condition on a building permit.

In order to assess this kind of case and determine whether a condition constitutes a taking, courts use a three-part approach. First, they ask if the condition would qualify as a taking if the government required it directly. If not, there's no taking. But if so, next, the government must demonstrate a "nexus" between the condition and the development. (The condition must be related in kind to the development.) Finally, the government must establish a "rough proportionality" between the condition and the development, so that the condition's burdens on the property owner approximate the development's burdens on the community. (The condition must be related in magnitude to development's costs to the community.) This three-part test comes from Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. Johns River Water Management District. If the government fails to show a "nexus" or "rough proportionality," the condition is a taking (assuming it's for public use), and the government must pay just compensation.

Nashville countered that the sidewalk requirement was an ordinary regulation, subject to the Court's regulatory takings test. Nashville claimed that because the sidewalk ordinance was "legislative" (that is, imposed on all property owners by the city council), and not "adjudicative" (imposed by zoning officials on individual property owners on a case-by-case basis), the ordinance looked more like an ordinary regulation, and not like an exaction in exchange for a benefit.

In order to assess this kind of case and determine whether a regulation constitutes a taking, courts look to the nature of the regulatory scheme and its effects on the property owner, among other considerations, and, using a kind of totality-of-the-circumstances approach, determine whether the regulatory scheme goes too far. Penn Central Transportation Co. v. New York City. If so, the regulatory scheme is a taking, and the government must pay just compensation.

The court sided with the property owners. It said that nothing in the Taking Clause's history or case-law supported Nashville's claimed distinction between a "legislative" condition and an "adjudicative" one, and that Nashville's sidewalk ordinance looked more like a typical exaction in exchange for a government benefit.

The court then noted that Nashville didn't even bother to argue that the sidewalk ordinance satisfied the "nexus" and "rough proportionality" test. As a result, the court assumed that the ordinance constituted a taking and remanded the case for a determination of an appropriate remedy.

But note that the court's ruling turned on Nashville's concession. This doesn't mean that every sidewalk ordinance (or the like) constitutes a taking, even under the Nollan/Dolan test. The court itself wrote that the "answer is not obvious," noting that dicta in Dolan said "that 'dedications' for 'sidewalks' are often 'reasonable' conditions on permits."

Ninth Circuit Upholds Restrictions on Public Employee's Speech During Investigation

The Ninth Circuit ruled that a public agency did not violate the First Amendment when it prohibited an employee from speaking to coworkers on matters related to the employee's alleged misconduct while an investigation was pending.

The case, Roberts v. Springfield Utility Board, arose when SUB initiated an investigation into Todd Roberts's "dishonest related to [his] work attendance." SUB prohibited Roberts from communicating with coworkers regarding the matter while the investigation proceeded. Roberts then sued, arguing that the restriction violated free speech.

The Ninth Circuit rejected the claim. The court ruled that SUB's restriction applied to speech that was not on a matter of public concern, and therefore Roberts didn't clear the first hurdle under Pickering v. Board of Education. The court noted that SUB's restriction permitted Roberts to communicate with coworkers on other matters, and allows his attorney to communicate with coworkers on matters related to the investigation.

Court Says Congress Did Not Abrogate Puerto Rico Immunity

The Supreme Court ruled today that Congress did not abrogate sovereign immunity of the Financial Oversight and Management Board for Puerto Rico (as an arm of Puerto Rico) under the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA). The ruling means that a non-profit can't sue the Board for its records.

The case, Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc., arose when CPI sued the Board in federal court to obtain its records. The Board argued that it was immune; CPI responded that Congress abrogated immunity under PROMESA.

The Court rejected CPI's claim. Justice Kagan wrote for all but Justice Thomas that PROMESA did not contain a sufficiently "clear statement" abrogating sovereign immunity. In particular, she said that PROMESA doesn't provide that the Board or Puerto Rico is subject to suit, and it doesn't create a cause of action against them. She acknowledged that PROMESA says that "any action against the Oversight Board, and any action otherwise arising out of" PROMESA "shall be brought" in the Federal District Court sitting in Puerto Rico. But she wrote that this provision and others in PROMESA serve other functions, not abrogation. For example, she wrote that this provision accounts for other statutes' abrogation of sovereign immunity (like Title VII), and doesn't constitute an independent abrogation. In other words, PROMESA's references to lawsuits against the Board apply to suits based on other causes of action, where Congress has abrogated immunity; they do not categorically abrogate immunity for all claims against the Board.

Justice Thomas argued in dissent that the Board lacked immunity in the first place. (The Court assumed, but didn't decide, that the Board had immunity.)

Court Upholds California's Pig Protection Law

The Supreme Court ruled today that California's Prop 12, which prohibits the in-state sale of whole pork meat that comes from breeding pigs that are "confined in a cruel manner," did not violate the Dormant Commerce Clause. The ruling means that Prop 12 stays on the books. It also means that the familiar Dormant Commerce Clause test survives, even if the various opinions exposed fault lines on the Court.

The case, National Pork Producers Council v. Ross, tested how the Court would assess a neutral state law that impacted out-of-state pork producers. (Everyone agreed that Prop 12 was "neutral," in that it didn't facially discriminate against out-of-state producers.) Historically, the Court applied the balancing test from Pike v. Bruce Church, Inc. That test goes like this: When a neutral state law poses a substantial burden on interstate commerce, the law fails if its economic burdens are "clearly excessive in relation to the putative local benefits."

The Council, however, pitched a new approach. It argued that the Dormant Commerce Clause includes an "almost per se" rule that prohibits state laws that have the "practical effect of controlling commerce outside the state." The Court rejected this claim, saying that it lacked support in the Court's cases.

Alternatively, the Council claimed that Prop 12 failed the traditional Pike test. The Court rejected this claim, too, and for different reasons. Justice Gorsuch wrote for himself and Justices Thomas and Barrett that the Court was not equipped to balance the "incommensurable goods" under Pike, and that this is best left to the legislature. Justice Gorsuch wrote for himself and Justices Thomas, Sotomayor, and Kagan that the Council's complaint failed to allege a "substantial burden" on interstate commerce, so the Court shouldn't even get to the balancing. Chief Justice Roberts (concurring in part and dissenting in part) wrote for himself and Justices Alito, Kavanaugh, and Jackson that the Council alleged a "substantial burden" and that the Court should remand for balancing. (The Ninth Circuit dismissed the case based on lack of a substantial burden and therefore didn't balance.)

That's a little complicated, so let's try this:

-Five justices (Justices Thomas, Gorsuch, Sotomayor, Kagan, and Barrett) agreed that Prop 12 stays on the books.

-Six justices (Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, Kagan, and Kavanaugh) agreed that the core Pike test, including its balancing of economic burdens against putative benefits, remain the law for nondiscriminatory state actions.

-Four justices (Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson) said that Prop 12 created a substantial burden. They argued that the Court should consider not only "compliance costs," but also "market-wide consequences of compliance," in determining whether a state law creates a substantial burden.

-Justice Barrett separately agreed that Prop 12 created a substantial burden, but only if Pike balancing were workable in the first place. But she argued that it's not, at least in this case. (Justice Barrett didn't formally join any part of Chief Justice Roberts's opinion. She made this point (citing Chief Justice Roberts's opinion) in a separate concurrence.)

-Taken together, the last two bullets mean that five justices agree that the Court should consider both "compliance costs" and "consequential harms" in assessing whether a state law substantially burdens the interstate economy and thus triggers the balancing test.

-Four justices (Justices Gorsuch, Thomas, Sotomayor, and Kagan) said that Prop 12 didn't create a substantial burden on interstate commerce, and so there's no need to consider whether its economic burdens are excessive in relation to the putative local benefits.

-Three justices (Justices Gorsuch, Thomas, and Barrett) said that Pike's balancing test is unworkable. This approach would limit Pike to cases where a state law discriminates against interstate commerce or where a state law regulates the instrumentalities of interstate commerce (and not to cases where a state law doesn't discriminate). According to Justice Kavanaugh, this approach "would essentially overrule the Pike balancing test."

-Justice Kavanaugh wrote separately to argue that Prop 12 might violate the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.

Check it Out: Sullivan on Lessons of the Plague Years

Check out Barry Sullivan's (Loyola Chicago) excellent Lessons of the Plague Years, 54 Loyola U. Chi. L. J. 15 (2022). Here's the abstract:

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized.

President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to “follow the science.” During the 2020 election, the Democrats sought to portray themselves as the “party of science,” touting their willingness to “follow the science,” and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not “believe in science.” As this Article shows, however, the issue was more complicated than “following the science” or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent.

The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to “take Care that the Laws be faithfully executed.” For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called “unitary executive” theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have.

This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.

South Carolina Supremes Strike Six-Week Abortion Ban Under State Constitution

The South Carolina Supreme Court ruled yesterday that the state's ban on abortion after six weeks of pregnancy violated the state constitution's right to privacy.

In doing so, the court broke with the historical approach that the Supreme Court used last summer in Dobbs v. Jackson Women's Health Organization, when it overturned Roe v. Wade. The Court in Dobbs used only history before and leading up to the adoption of the Fourteenth Amendment in concluding that the Fourteenth Amendment didn't protect a right to abortion, whereas the South Carolina Supreme Court also considered the place of women in political society at the time of the adoption of the provision at issue and events that have "transpired since the amendment was adopted."

The court based the ruling on Article I, Section 10, of the South Carolina Constitution, which says: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated." The provision sounds like the Fourth Amendment, with the addition of a specific right to privacy. But the court rejected a reading that would've limited the privacy part to government searches and seizures; it said that the privacy part wouldn't be doing any work if it were so limited, and that it therefore must grant a more general right to privacy.

The court also rejected a reading of the provision that depended on what the provision's framers thought at the time of adoption in the mid-1960s, given that women weren't included in the framing committee and given that the state "had neither permitted women to serve on juries in this state nor ratified the Nineteenth Amendment."

The court then wrote that "[w]e cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since the amendment was adopted." It said the Court specifically "declined to do so in the context of 'separate but equal' education in Brown v. Board of Education, then quoted this passage:

[W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

The approach is a notable break from the Supreme Court's historical approach in Dobbs, when it considered history only before and leading up to the Fourteenth Amendment, and certainly not "everything that has transpired since the amendment was adopted." The South Carolina Supreme Court put a fine point on this break by noting that the Court itself didn't limit its historical assessment to pre-Fourteenth Amendment history in other unenumerated-fundamental-rights cases like Loving, Griswold, Lawrence, and Obergefell.

SCOTUS Stays District Court Title 42 Ruling, Sets State Intervention for Argument

The Supreme Court stayed a district court ruling that vacated the Trump Administration's Title 42 policy and set states' motion for intervention in the case for oral argument in the February sitting.

The ruling means that the Title 42 policy can stay in place, and that the Court will rule later this year whether twelve states led by Republican attorneys general can intervene in the case on the merits.

We last posted here.

The case arises out of the Trump Administration's Title 42 policy, which turned away immigrants--including immigrants who were entitled to apply for asylum--because the Administration determined under federal law that immigration posed a "serious danger" of "introduc[ing]" a "communicable disease." A district court ruled the policy invalid, however, and halted it. States then moved to intervene, arguing that the Biden Administration wouldn't sufficiently defend it on appeal. (The Biden Administration, in fact, is appealing the district court ruling. But it also moved to halt the policy earlier this year, saying that it's no longer justified. In other words, the government is saying that the Trump Administration had authority to implement Title 42 in the first place, and that it has authority to revoke it now that it's no longer necessary and justified. The states take all this as evidence that the Biden Administration won't sufficient defend the policy on appeal.) But they moved quite late, and the D.C. Circuit rejected their motion. They then applied to the Supreme Court for expedited review of the D.C. Circuit's denial, and a stay of the district court's ruling striking the policy.

The Court granted both requests. It stayed the district court's ruling (which allows Title 42 to remain in place) and set the states' motion for intervention for oral argument in its February sitting. The Court ordered the parties to brief this single question: Whether the State applicants may intervene to challenge the District Court's summary judgment order.

Justices Sotomayor and Kagan noted without comment that they'd deny the application. Justice Gorsuch dissented, joined by Justice Jackson, arguing that the Court need not, and should not, get involved in this dispute, at least on an expedited basis. He wrote that there's no rush to determine whether the states can intervene in this dispute over a policy that everyone agrees has "outlived its shelf life" (because it's no longer justified by COVID).

The Court's ruling specifically says that it "does not prevent the federal government from taking any action with respect to [the Title 42 policy]." But another case does, at least for now: A different federal district court ruled in an entirely different case that the Biden Administration's revocation of the Title 42 policy was unlawful. The Administration appealed that ruling to the Fifth Circuit (where the case is pending). In the meantime, the Administration considers itself barred from revoking Title 42.

All this means that Title 42 remains in place, even though everyone seems to agree that it's no longer justified by COVID.

January 6 Committee Makes Criminal Referrals for Trump and Others

The January 6 Committee today made criminal referrals to the Department of Justice for former President Trump and others who were involved in the insurrection. The move is the first time that Congress has referred a former president for criminal prosecution.

But remember: the Committee's action doesn't have any formal legal significance, and it doesn't compel the Justice Department to act. Congress lacks that power. The Committee can simply make the referrals, turn over its findings . . . and hope that DOJ will move.

So why would the Committee go to the trouble of referring to DOJ? Most obviously, to pressure DOJ to move, and to highlight the significance of its own findings.

The DOJ is already investigating. The Committee's referrals might only light a fire under that investigation. The referrals have no formal legal significance.

The Committee's "introductory material" to its final report is here.

CJ Roberts Allows Title 42 Policy to Stay in Place . . . For Now

Chief Justice Roberts issued an order today halting a district court ruling that struck the Trump Administration's Title 42 policy. The administrative stay means that the Title 42 policy will remain in place, notwithstanding the district court's ruling, until the Chief Justice or the full Supreme Court has a chance to consider the issue more thoroughly.

That could be soon. Chief Justice Roberts ordered that the government respond tomorrow, Tuesday.

The Title 42 policy orders U.S. immigration officials to turn away covered noncitizens from any country who try to enter through the Mexican or Canadian borders. This means that the U.S. government turns away asylum seekers from any country who enter through those borders. The Trump Administration adopted the policy in the putative interest of public health--reducing transmission of COVID-19--and purported to use CDC's authority to implement it. But the policy was widely seen as an effort simply to reduce and deter immigration through the Mexican border. Absent the policy, an individual who enters the U.S. even without authorization is entitled to apply for asylum in the U.S.

Today's moves started with a November 15 decision of the U.S. District Court for D.C. that the Title 42 policy violated the Administrative Procedure Act and set a deadline for Wednesday for the government to halt the program. A group of states sought to intervene in the appeal, but the D.C. Circuit said on Friday that they were too late. The states then applied to Chief Justice Roberts for a stay of the district court ruling. Chief Justice Roberts granted the stay, but put the case on a super-fast briefing schedule, suggesting that the Court could rule quickly on whether to stay the district court's ruling pending appeal and possibly take up the case itself.

Kentucky Supremes Strike State Private-School Funding Program

The Kentucky Supreme Court ruled this week that a state private-school funding program violated the state constitution. The ruling ends the program, unless and until state voters approve it in a ballot initiative.

The program created a nearly dollar-for-dollar tax credit for Kentucky taxpayers (individuals and corporations) who contribute to account-granting organizations (AGOs). AGOs then allocate taxpayer contributions to education opportunity accounts (EOAs) for eligible students. Students can use EOAs for qualifying educational expenses, including public school tuition, tutoring services, textbooks and instructional materials, and the like. In the eight state counties with more than 90,000 residents, students can use EOAs for private-school tuition. The court described the program more simply:

In simple terms, taxpayers, whether individuals or business entities, who otherwise owe state income tax can instead send that money to nonpublic schools via an AGO, reducing their tax liability and the state coffers by a corresponding amount. As the circuit court correctly observed, the legislation "allows this favored group of taxpayers to re-direct the income taxes they owe to the state to private AGOs, and thereby eliminate their income tax liability." This diversion of owed tax liability monies is made possible by the significant amount of state resources employed to create and operate the EOA program.

Kentucky's high court ruled that the program violated Section 184 of the state constitution. That provision says that state public-school (or "common school") funds can be used only for public-school education, unless Kentuckians vote otherwise. It reads,

The interest and dividends of said [common school] fund, together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose. No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation. . . .

The court said that the program violated the plain terms of the Section by diverting public funds to private-school education.

The court noted that state voters could approve the program, pursuant to the terms of Section 184. If so, the program could come back. For now, though, the ruling ends the program.