Constitutional Law Prof Blog

The Trump Indictment

Here it is, alleging that former president Trump unlawfully retained documents related to the national defense and conspired to obstruct justice, among other things. There's quite a lot in it, but here are some highlights:

3. The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.

6. On two occasions in 2021, TRUMP showed classified documents to others, as follows:

a. In July 2021, at Trump National Golf Club in Bedminster, New Jersey ("The Bedminster Club"), during an audio-recorded meeting with a writer, a publisher, and two members of his staff, none of whom possessed a security clearance, TRUMP showed and described a "plan of attack" that TRUMP said was prepared for him by the Department of Defense and a senior military official. TRUMP told the individuals that the plan was "highly confidential" and "secret." TRUMP also said, "as president I could have declassified it," and, "Now I can't, you know, but this is still a secret."

b. In August or September 2021, at the Bedminster Club, TRUMP showed a representative of his political action committee who did not possess a security clearance a classified map related to a military operation and told the representative that he should not be showing it to the representative and that the representative should not get too close.

7. . . . TRUMP endeavored to obstruct the FBI and grand jury investigations and conceal his continued retention of classified documents by, among other things:

a. suggesting that his attorney falsely represent to the FBI and grand jury that TRUMP did not have documents called for by the grand jury subpoena;

b. directing defendant WALTINE NAUTA to move boxes of documents to conceal them from TRUMP's attorney, the FBI, and the grand jury;

c. suggesting that his attorney hide or destroy documents called for by the grand jury subpoena;

d. providing to the FBI and grand jury just some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully; and

e. causing a certification to be submitted to the FBI and grand jury falsely representing that all documents called for by the grand jury subpoena had been produced--while knowing that, in fact, not all such documents had been produced.

District Court Rebuffs Challenge to Private Securities Regulator

The D.C. District ruled that a securities firm failed to show that the Financial Industry Regulatory Authority was likely unconstitutional. The court denied the firm's motion for a temporary restraining order against FINRA enforcement action.

The arguments against FINRA play on familiar separation-of-powers themes that the Supreme Court has developed and used in recent Terms to limit the power of administrative agencies. But those arguments haven't gained traction in challenges to FINRA, and the D.C. District's ruling in Scottsdale Capital Advisors v. FINRA aligns with other federal courts that have ruled FINRA constitutional.

FINRA is a private corporation that's responsible for regulating broker-dealers in the securities industry. Under the Securities and Exchange Act, FINRA enforcement actions are subject to internal review and appeal, and de novo appeal to the SEC. If the SEC rules against a firm, the firm can seek judicial review.

In this case, FINRA initiated enforcement action against Alpine Securities Corporation. Alpine moved for a TRO, arguing that FINRA was unconstitutional on several grounds. In particular, Alpine claimed that FINRA's double-insulation structure impermissibly encroached on executive authority, that FINRA board members are "officers" who haven't been validly appointed, that the Exchange Act improperly delegates lawmaking power to FINRA, that FINRA's proceedings violate due process and the right to a jury, and that forced association with FINRA violates the First Amendment.

The district court rejected all but the First Amendment claim on the ground that FINRA's not a state actor. (As to private non-delegation, the court said that the Act didn't impermissibly delegate lawmaking power to a private entity, because FINRA is subject to SEC control. But even assuming FINRA were a state actor, the court said that the Exchange Act didn't delegate lawmaking authority in violation of the non-delegation doctrine, because the Act gave FINRA "intelligible principles" to act.)

As to Alpine's First Amendment claim, the court said that the government had "a significantly compelling government interest embodied in the Exchange Act to justify mandatory FINRA membership": "to 'prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, foster cooperation and coordination' among all industry players, 'remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest."

Court Strikes Alabama's Congressional Map, Reaffirms VRA Redistricting Test

The Supreme Court today upheld a lower court's ruling that Alabama's congressional map likely violated Section 2 of the Voting Rights Act. The Court applied (and reaffirmed the validity of) a longstanding test for Section 2 redistricting claims--a test that many expected the Court to narrow or even overrule. The ruling means that Alabama has to add a second majority Black district to its seven-district congressional map.

The ruling is surprising and significant, given that the Court has sharply curtailed other portions of the VRA in recent Terms. This case goes directly against that trend, and provides a sign that the Court will fully enforce the VRA in the redistricting context--even as it's eviscerated the VRA's preclearance requirement and all but eviscerated the Act's Section 2 protections against other voting procedures.

The case, Allen v. Milligan, tested Alabama's congressional map. The map include one majority Black district out of seven congressional districts, even though Black residents accounted for 27 percent of Alabama's population, and even though the legislature could easily--and more sensibly--have drawn a second majority Black district.

A three-judge district court held that the map likely violated Section 2--indeed, that it wasn't even a close case--and preliminarily enjoined the state from using the map in future elections. The Supreme Court stayed the injunction last year, allowing Alabama to use the map for the 2022 mid-terms. But today the Court affirmed the lower-court ruling.

The Court held that the lower court properly applied the time-tested framework for assessing redistricting plans under Section 2. Under that framework, from Thornburg v. Gingles, a plaintiff must first satisfy three preconditions: (1) that the "minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district"; (2) that "the minority group must be able to show that it is politically cohesive"; and (3) that "the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority's preferred candidate." If a plaintiff can establish the three Gingles preconditions, then the courts look to the totality of the circumstances to determine whether the political process is not "equally open" to racial minority voters.

In affirming the lower-court ruling, the Court leaned heavily on precedent--the many cases applying the Gingles framework to redistricting--and thus validated and reinforced the approach. (Again, this stands in stark contrast to the Court's evisceration of the preclearance requirement and Section 2's application to ordinary voting restrictions in recent Terms.)

At the same time, the Court flatly rejected Alabama's several arguments to overturn or significantly narrow Gingles and adopt some version of a race-blind requirement to redistricting.

Chief Justice Roberts wrote for the Court, including Justices Sotomayor, Kagan, Kavanaugh (for all but a portion), and Jackson. Justice Thomas dissented, joined by Justice Gorsuch and in part by Justices Alito and Barrett. Justice Alito dissented, joined by Justice Gorsuch.

The principal cleavage involved whether and how race could play a role in a plaintiff's "illustrative" maps. In Section 2 redistricting litigation, a plaintiff offers illustrative maps to demonstrate that the state could have created another majority-minority district, consistent with the VRA. In practice, this allows a plaintiff to satisfy the first Gingles precondition. The justices hotly disputed whether a plaintiff's illustrative maps can consider race at all, if so how much, and whether the plaintiffs' maps in this case considered race too much.

Chief Justice Roberts wrote that a plaintiff can consider race in drawing illustrative maps, but that race can't predominate. He wrote that the plaintiffs' maps met that test. Justice Kavanaugh did not join this portion of the Chief's opinion, but he nevertheless concurred "that Alabama's redistricting plan violates Section 2 of the Voting Rights Act as interpreted in Thornburg v. Gingles," and that Section 2 "requires in certain circumstances that courts account for the race of voters so as to prevent" the dilution of racial minority voters' votes.

Justice Thomas argued that Section 2 doesn't apply to redistricting (a portion of his dissent not joined by Justices Barrett and Alito); that any benchmark for a Section 2 challenge must be race neutral; that the plaintiffs' illustrative maps were impermissibly race-based; and that Section 2 as construed by the Chief would exceed congressional authority under the Fourteenth and Fifteenth Amendments.

Justice Alito argued that under Gingles race cannot predominate in a plaintiff's illustrative maps. He "would vacate and remand for the District Court to apply the correct understanding of Gingles in the first instance."

Court Says Individual Can Sue to Enforce Rights Under Federal Nursing Home Reform Act

The Supreme Court ruled today that an individual can sue to enforce rights under the Federal Nursing Home Reform Act. The Court declined the defendant's invitation to rewrite the law on individual suits to enforce rights in spending-power legislation, and reaffirmed its long-standing approach to individual suits under such acts.

The ruling is a win for plaintiffs, insofar as it didn't disturb the Court's approach to individual lawsuits to enforce rights in conditioned-spending programs.

The case, Health and Hospital Corporation of Marion County v. Talevski, arose out of a nursing-home patient's lawsuit against the home for administering certain restraints and discharging him without meeting certain preconditions, both in violation of the FNHRA. The home argued in response that Talevski couldn't sue (under 42 U.S.C. Sec. 1983) to enforce provisions of the FNHRA, because Congress enacted the FNHRA under its spending power. (The FNHRA is a conditioned-spending program: Congress imposes conditions under the FNHRA on states when they accept federal funds--in this case, Medicaid funds--and the federal government can enforce those conditions by withholding federal funds. The conditions are different than an ordinary federal regulatory requirement, enacted under one of Congress's regulatory powers (like the Commerce Clause), because states that object to the conditions can opt out by declining federal funds.)

The home argued that individual plaintiffs could never sue under Section 1983 to enforce rights under conditioned-spending programs. The argument went like this: conditioned-spending programs are like contracts between the federal government and a state; an individual protected by anything in a conditioned-spending program is a third-party to the contract; and common law at the time of the adoption of Section 1983 did not allow third parties to sue to enforce contractual provisions.

The Court flatly rejected this argument. The Court said that the common law was ambiguous on this point, that a plaintiff's suit was more like a tort (not a third-party enforcement of a contract), and that Court precedent long recognized that individuals could sue to enforce rights in conditioned-spending programs.

The Court went on to apply that precedent and say that the FNHRA unambiguously conferred individual rights, and that nothing in the statute precluded private enforcement of those rights.

Justice Jackson wrote the majority opinion, joined by all but Justices Thomas and Alito. Justice Gorsuch wrote a concurrence arguing that these cases may raise anti-commandeering problems--an issue for another day. Justice Barrett wrote a concurrence, joined by Chief Justice Roberts, emphasizing that the standard for individual enforcement of rights in spending-power legislation is high.

Justice Thomas dissented, arguing that Congress's spending authority is much narrower than the Court has acknowledged, and that it doesn't include a regulatory power (including power to authorize individual lawsuits to enforce rights in conditioned-spending programs). Justice Alito also dissented, joined by Justice Thomas, arguing that the remedial scheme in the FNHRA forecloses any individual cause of action to enforce the rights in the Act.

Court Halts Florida's Ban on Transgender Care for Minors

A federal district court this week preliminarily enjoined Florida officials from enforcing the state's ban on medical care for transgender minors against the three plaintiffs and their healthcare providers.

The court in Doe v. Ladapo held that the ban likely violated equal protection and the right to parent. In short, it said that Florida had no good reason for the ban, especially in light of the overwhelming medical evidence supporting treatment, and that its stated purposes were plainly pretextual.

The ruling follows Brandt ex rel. Brandt v. Rutledge, a ruling from the Eighth Circuit and the only circuit court ruling on the issue.

Court Says NLRA Doesn't Preempt Employer's State Lawsuit Against Union

The Supreme Court ruled last week that the National Labor Relations Act didn't preempt an employer's state lawsuit against a union for damages resulting from a strike. The ruling is a blow to employees' right to strike under the NLRA and the role of the National Labor Relations Board in determining the scope of that right.

The case, Glacier Northwest, Inc. v. Teamsters, arose when employees of Glacier, a cement company, began a strike when they were slated to deliver cement. Because wet cement dries quickly, Glacier had to figure out how to save or dispose of cement already in the trucks, and what to do to protect its trucks.

Glacier sued the union in state court for lost cement, but the union argued that the employees' right to strike in the NLRA preempted the suit. The state supreme court sided with the union, and Glacier took the case to the Court.

The Court, in an 8-1 ruling by Justice Barrett, reversed. The Court ruled that the right to strike in the NLRA was a qualified (not absolute) right, and, citing NLRB precedent, that it didn't protect workers who failed to take "reasonable precautions" to protect the employer's property. The Court acknowledged that under Court precedent the NLRB preempts state law even when the two only arguably conflict--Garmon preemption, after San Diego Building Trades Council v. Garmon--but it held that the union's strike wasn't even arguably protected, because the employees so clearly failed to take "reasonable precautions" to protect Glacier's property (at least on Glacier's complaint, as this was all on the pleadings).

The ruling allows Glacier's case to move forward in the state courts.

Still, there may be a hitch. That's because after the state supreme court ruled, the NLRB general counsel filed an unfair labor practices complaint with the NLRB on behalf of Glacier's employees. The complaint alleged that Glacier violated the employee's right to strike under the NLRA. The NLRB hasn't yet ruled on the complaint. But if it concludes that Glacier violated the employees' right to strike, any state court ruling for Glacier would conflict, and under ordinary conflict preemption, the state case would have to be dismissed. (The NLRB could conclude that the employees have a right to strike, even though the Supreme Court said the opposite, because the NLRB will conduct a full adversarial hearing on the evidence, while the Court ruled only on Glacier's complaint.)

Justice Thomas concurred, joined by Justice Gorsuch, and argued that the Court should reconsider Garmon preemption in an appropriate case. Justice Alito also concurred, joined by Justices Thomas and Gorsuch, arguing that the case was even easier than the majority said, because the employees intentionally damaged Glacier's property.

Justice Jackson filed a lone dissent. She argued that the Court had no business hearing the case until the NLRB ruled on the complaint (because that's how Garmon preemption is supposed to work, and a ruling for the employees would mean that the NLRA and state tort liability would at least arguably conflict), and that in any event the Court misapplied the "reasonable precaution" rule.

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.