Constitutional Law Prof Blog

Officers Who Rely on Judgment of Jail Medical Unit Get Qualified Immunity, Seventh Circuit Says

The Seventh Circuit ruled that corrections officers who were tasked with transferring a pretrial detainee out of a county jail's medical unit enjoyed qualified immunity from the detainee's estate's civil rights suit for his death, because they relied on the judgment of jailhouse medical staff.

The ruling ends this part of the estate's lawsuit against the officers.

The case, McGee v. Parsano, arose when a diabetic detainee exhibited symptoms commonly associated with diabetic ketoacidosis, but was refused medical treatment because a jailhouse nurse thought he was faking. The detainee then died.

The detainee's estate sued officers who were tasked with transferring the detainee out of the medical unit just before his death. (The estate sued the medical staff, too, but that's not at issue in this case.)

The Seventh Circuit ruled that the officers enjoyed qualified immunity from the suit, because they relied on the judgment of medical staff in declining to provide treatment.

[C]orrections officers are not constitutionally obligated to override the judgment of medical professionals unless they have reason to know that an inmate is receiving inadequate treatment. This remains true even when an inmate is in obvious distress and even when the medical staff has misdiagnosed an inmate--or worse, accused him of faking a very real illness. * * * [A] corrections officer may trust jail medical professionals to provide inmates with appropriate medical care. There is accordingly no legal basis for McGee's contention that at the time of Carter's death, the law was clearly established in her favor.

Check it Out: Tsai's Civic Education and Democracy's Flaws

Check out Robert Tsai's Civic Education and Democracy's Flaws, Nomos:

This is an invited essay developing remarks made at the 2021 Annual Meeting of the American Society for Political and Legal Philosophy. I respond to Seana Shiffrin’s plea for increased investment in teaching legal knowledge as a way to revitalize civic education and enhance democratic engagement. First, while I applaud Shiffrin’s embrace of a robust conception of citizenship, I am doubtful that increased facility with legal methods will be sufficient to cure the ailments that afflict American democracy. Instead of creating more citizens who are technically proficient in the law, we must raise a generation of political diagnosticians. Second, beyond habits such as listening, truth-telling, and toleration, we must cultivate a capacity for righteous outrage, fear of role reversal, and wisdom in managing the multiplicity of relationships and identities in modern life. Otherwise, teaching legal proficiency could very well reinforce existing patterns of corruption or inequality. Third, when it comes to the content of civic education, we should select texts that help citizens draw connections between despised policies and the structural features of our political existence. In other words, we should show citizens how to reason from injustice.

Check it Out: Koppelman's Emerging First Amendment Right to Mistreat Students

Check out Andrew Koppelman's Emerging First Amendment Right to Mistreat Students, Case Western L. Rev.:

Under the long-settled tradition of religious liberty, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents. Yet in two prominent cases, Kennedy v. Bremerton in the Supreme Court and Meriwether v. Hartop in the Sixth Circuit, courts have held that publicly employed teachers may exercise their First Amendment rights of free speech and religion even when doing so mistreats students.

In both cases, despite a long-established rule of deference to public employers’ need to control their own operations – and despite mighty efforts to accommodate difficult employees - public schools lost the capacity to protect students from misbehaving teachers. In each, the school proposed a solution that would give appropriate weight to each side’s most urgent interests. Not good enough, the court decreed: the religious side must be granted an absolute and uncompromising victory. It was oblivious to the countervailing interest. The language of privacy and autonomy was deployed to enable the religious to wield state authority and harm their students.

These are only two cases. But they come from high federal courts, one from the Supreme Court, and their similarity of approach, and resemblance to other recent treatments of religious liberty by the Court, is a reasonable basis for alarm.

No Bivens Cause of Action for "Systemwide" Conditions-of-Confinement Claim, Fourth Circuit Says

The Fourth Circuit ruled that a federal prisoner did not have a Bivens cause of action for a conditions-of-confinement claim under the Eighth Amendment. The ruling means that the prisoner can't sue federal officers for monetary damages for the Eighth Amendment violations that the prisoner alleged.

The ruling specifically follows, and is consistent with, the Supreme Court's hyper-narrowing and all-but-overruling Bivens in recent Terms.

The court in Tate v. Harmon said that the prisoner's claims arose in a "new context," and that "special factors" counseled hesitation in extending Bivens. Following the Supreme Court, the Fourth Circuit acknowledged the overlap in the two questions, and summarized them together:

In explaining above why Tate's claim arises in a "new context," we noted that his claim seeks to impose liability on prison officials on a systemic level, implicating the day-to-day operations of prisons, affecting the scope of the officials' responsibilities and duties, and implicating policy, administrative, and economic decisions. Determinations about the temperature at which to keep cells, the level of cleanliness at which prison employees or inmates themselves are to maintain cells, the adequacy of toilet paper and toothbrushes, and the length and thickness of mattresses are usually the subject of systemwide executive regulations. Moreover, providing a damages remedy for such inadequacies would involve not only decisions of acceptable human needs but also judgments regarding prison staffing levels, economic considerations, and the most efficient procedures for addressing the inadequacies. . . . We conclude that in this context, the political branches are indeed "better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy." This is especially so because we are ill-suited to "predict the systemwide consequences of recognizing a cause of action under Bivens," and even our "uncertainty" on that question "forecloses relief."

Ninth Circuit Rules for Student who Sought to Wear Feather at Graduation

The Ninth Circuit last week ruled in favor of a member of the Sisseton Wahpeton Oyate tribe and graduating high-school student who sought to wear a feather on her cap during graduation ceremonies. The ruling reverses a district court's dismissal of the case and allows it to move forward.

The case, Waln v. Dysart School District, arose when the student asked permission to wear an eagle feather on her graduation cap in honor of her religious beliefs and to pay respect to her ancestors. The district denied permission, pointing to a policy that prohibits students from adding any decoration to their cap or gown. The student showed up at graduation with a feather, and school officials denied her entry. She sued, arguing that the district violated her free speech and free exercise rights, given that other students appeared at the ceremony with secular decorations on their caps.

The district court dismissed the case, but the Ninth Circuit reversed.

The court held that the student plausibly pleaded that school officials treated her differently than other students who decorated their caps with secular messages. The court said that this rendered the policy not generally applicable (under free exercise) and viewpoint based (under free speech).

The court then rejected the district's claim that compliance with the Establishment Clause justified its actions. "[T]he District has not sufficiently met its burden, at this stage, to show that accommodating religious dress for an individual student would have any effect on other students' rights."

Ninth Circuit Affirms District Court Abstention Pending State-Court Eminent Domain Action

The Ninth Circuit ruled last week that a federal district court was right to abstain from proceeding on the plaintiffs' regulatory takings claim when a state court was considering an eminent domain action on the property.

The court in Gearing v. City of Half Moon Bay rejected the plaintiffs' claim that federal court Pullman abstention amounted to a state-forum exhaustion requirement, rejected by the Supreme Court.

In English: The Supreme Court ruled in Knick v. Township of Scott and Pakdel v. City and County of San Francisco that a plaintiff need not exhaust state-forum proceedings before lodging a Takings Clause challenge in federal court. This means that a plaintiff can bring a case in federal court to challenge a taking, even as any state-forum proceeding is still pending.

At the same time, on a different front, federal courts can abstain from ruling on a constitutional question when there's a pending state-court challenge, if the case touches on a sensitive area of social policy, the state proceeding could narrow or eliminate the federal constitutional question, and state law is uncertain. That's Pullman abstention.

In this case, the plaintiffs filed a claim in federal court arguing that the City's rejection of the plaintiffs' development plan amounted to a regulatory taking. The City then filed an eminent domain action in state court. The City also filed a motion to abstain in the federal case. The district court granted the motion.

On appeal, the plaintiffs argued that abstention would force them to litigate their federal takings claim in state court, which would functionally require them to exhaust state-forum proceedings in violation of Knick and Pakdel.

The Ninth Circuit disagreed. The court said that those cases addressed exhaustion, not abstention. The court said that even if they preclude abstention in some other case, they don't preclude abstention in this case. That's because the state court could adjudicate the eminent domain action without reaching the plaintiffs' regulatory takings claim--because eminent domain and regulatory takings suits lead to different compensation for different injuries. Finally, the court ruled that the requirements of Pullman abstention were satisfied in this case.

Digital Millennium Copyright Act Doesn't Violate Free Speech, D.C. Circuit Rules

Steven D. Schwinn, University of Illinois Chicago School of Law

The D.C. Circuit ruled this week that the DMCA doesn't violate the First Amendment rights of an inventor who wanted to create and sell a device that would circumvent technological protection measures for copyrighted digital content.

The case, Green v. U.S. Department of Justice, tests the DMCA's prohibition on "circumvent[ing] a technological measure that effectively controls access to a [copyrighted work]," or trafficking in technology, product, or service that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work."

Andrew "bunnie" Huang said that he wanted to create and sell a device that would so circumvent, and that he also wanted to publish his computer code to share with others. He brought a pre-enforcement challenge to the DMCA under the First Amendment.

The D.C. Circuit ruled that he's unlikely to succeed on the merits. (The case came to the court on Huang's appeal of the district court's denial of a preliminary injunction.) The court held that Huang's code was, indeed, speech, but that the DMCA was a content-neutral regulation, because the statute "cares about the expressive message in the code 'only to the extent that it informs' the code's function." (Quoting City of Austin v. Reagan National Advertising (2022)). The court then held that the DMCA easily passed intermediate scrutiny: it furthers an important or substantial government interest in protecting copyrighted work; the government interest is unrelated to the suppression of free expression; and the incidental restriction on free speech is no greater than necessary to advance that interest.

Court to Hear Case on Independent State Legislature Theory

The Supreme Court will hear oral argument tomorrow in Moore v. Harper, the case testing whether a state legislature has plenary power over federal elections in the state, unconstrained by state courts. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

In November 2021, the North Carolina legislature adopted a new map for its congressional districts. The North Carolina Supreme Court ruled that the map violated the state constitution, however, and, pursuant to state law, a lower state court issued a temporary replacement map. State legislative leaders and other state officials challenged the state-courts’ power to override the legislature’s congressional map, arguing that the state-courts’ actions violated the Elections Clause in the U.S. Constitution.

INTRODUCTION

The Elections Clause says that a state’s “Legislature” has authority to regulate federal elections, including drawing legislative maps for congressional districts. Legislative leaders and state officials argue that this means that the legislature, and the legislature alone, has plenary power to regulate elections in whatever ways it wants. Voters and voting-rights groups counter that the “Legislature” refers to the entire state lawmaking apparatus, consistent with state law and the state constitution, as interpreted and enforced by the state courts.

ISSUE

Does the Elections Clause give plenary power to a state legislature to regulate federal elections, without regard to state law and its own state constitution, as interpreted by the state courts?

FACTS

On November 4, 2021, the North Carolina General Assembly enacted a new map for the state’s congressional districts. Individual voters and voting-rights groups sued state legislative leaders and other state officials in state court to halt the state’s use of the map, however, alleging that it amounted to an extreme partisan gerrymander in violation of the North Carolina Constitution. (The plaintiffs also challenged the state legislative maps, but those challenges aren’t a part of this case.)

Pursuant to state law, the Chief Justice of the North Carolina Supreme Court appointed a three-judge panel to preside over the case. (North Carolina law provides that lawsuits “challenging the validity” of legislative maps shall be heard by special three-judge panels.) The court declined to halt the state’s use of the map, reasoning that voters and voting-rights groups were unlikely to establish standing and that their claims were nonjusticiable political questions.

The plaintiffs then sought relief in the North Carolina Supreme Court. The state Supreme Court granted a preliminary injunction, delayed the state’s primary election until May, and remanded the case to the trial court for expedited proceedings.

On remand, the three-judge trial court unanimously found that the map was an “extreme partisan outlier[]” resulting from “intentional, pro-Republican partisan redistricting.” The court found that the map was “intentionally and carefully designed to maximize Republican advantage.” But the court again ruled that partisan gerrymandering claims were nonjusticiable political questions, and again upheld the map.

The North Carolina Supreme Court reversed. The state high court first ruled that the voters and voting-rights groups had standing and that their claims were justiciable. On the merits, the court ruled that the map violated several provisions of the state constitution. In short, the court held that the map violated the voters’ rights “to cast votes that matter equally.”

The court considered the legislative leaders’ argument that the Elections Clause in the U.S. Constitution barred the court’s review of the map. But the court ruled that the legislative leaders waived that argument, because the legislative leaders hadn’t raised it in the trial court. Still, the court wrote that the argument was “repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts.”

The state Supreme Court remanded the case to the trial court. Pursuant to state law, the court provided the state legislature “the opportunity to submit new congressional and state legislative districting plans that satisfy all provisions of the North Carolina Constitution.” (Under state law, if a state court concludes that a map is unconstitutional, it must give the legislature at least two weeks to “remedy [those] defects.”)

The state legislature enacted a new congressional map and submitted it to the trial court for review. The trial court ruled that this new map, too, violated the state constitution. Pursuant to state law, the trial court then adopted a map drawn by three special masters (which the court appointed) for use in the 2022 election only. (Under state law, if a state court rules that a map is unconstitutional, and if the legislature fails to “remedy [those] defects,” “the court may impose an interim districting plan for use in the next general election only.”) The court’s map adjusted the legislature’s proposed map, but only as necessary “to bring it into compliance” with the state constitution.

The legislative leaders sought a temporary stay of the trial court’s order in the North Carolina Supreme Court. But the state high court denied the motion.

The legislative leaders then sought emergency relief at the U.S. Supreme Court, arguing that the state courts’ rulings violated the Elections Clause in the U.S. Constitution. (This is the same argument that the legislative leaders raised at the North Carolina Supreme Court.) The Court declined to intervene, although four justices acknowledged the importance of the issue and expressed interest in hearing the case on its regular docket. The Court later agreed to hear the case.

In the meantime, the legislative leaders’ appeal remains pending before the state Supreme Court. The court heard oral argument on October 4. A decision is expected later this year.

CASE ANALYSIS

This case tests the role of “the Legislature” in federal elections under the Elections Clause of the U.S. Constitution. That Clause reads in full,

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of ch[oo]sing Senators.

The legislative leaders argue first that the plain language of the Clause means that only a state “Legislature” can set the rules for federal elections, including drawing the state’s congressional map. The leaders say that the Constitution’s Framers used this language deliberately, as evidenced by their consideration and rejection of a plan to delegate this authority instead to each state as a whole. (This alternative would have included each states’ entire lawmaking apparatus, including state-court judicial review of a state legislature’s actions, and not just a state “Legislature.”) They claim that this reading—that state legislatures have the exclusive authority to regulate federal elections—makes sense in the context of our federalism system. According to the leaders, that’s because state constitutional limits (enforced by the state courts) have no force “against acts governed by the federal Constitution.” The leaders say that this reading is also consistent with early state practice, when “[t]he vast majority of States—21 out or 24, by 1830—did not impose any express state-constitutional restrictions on the regulation of federal elections.” They say that this reading is consistent with Court precedent, too.

The legislative leaders argue next that the North Carolina legislature did not delegate its authority to regulate federal elections to the state courts. They say that the state legislative mechanism authorizing state-court judicial review of the legislature’s congressional map itself violates the Elections Clause (because the legislature cannot delegate its exclusive power over federal elections at all). But even if the legislature can delegate some of its power, the leaders claim that the state-court rulings in this case far exceeded that delegable power, because their rulings amounted to “unmoored policy determination[s] deciding how much partisanship is permissible in redistricting.”

The voters and voting-rights groups counter (in two separate briefs) that the North Carolina legislature properly regulated federal elections by enacting state law that delegated authority to the state courts to review congressional districting to ensure that it complies with the state constitution. They say that the state courts acted pursuant to that authority in striking the legislature’s congressional map and issuing a temporary one. And they assert that the Court has no authority to second-guess the state courts over their own interpretation of state law or their own state constitution.

The voters and voting-rights groups argue next that even if the Court addresses the defendants’ arguments, those arguments are wrong. The voters contend that the text, history, and precedent all demonstrate that “the Elections Clause does not free state legislatures from the requirements of their state constitutions,” as interpreted by their state courts. As to text, the voters argue that “[a]t the founding, the word ‘legislature’ was universally understood to mean a body created and constrained by its constitution” and subject to ordinary and widely practiced judicial review by state courts. As to history, they say that over three-quarters of all state constitutions adopted or amended soon after ratification directly regulated federal elections, and ever since states have regulated federal elections through their constitutions. As to precedent, they contend that the Court has consistently ruled that state legislatures are bound by their constitutions when they regulate federal elections.

Finally, the voters and voting-rights groups argue that the legislative leaders’ theory would upend the way states currently regulate elections and lead to significant and widespread election problems. They say that the leaders’ theory could lead to confusion, protracted litigation, and even separate state and federal elections; it could also nullify state constitutional provisions that regulate or touch on federal elections, and eliminate any judicial remedy to ensure that state legislatures follow their own laws. According to the voters, the leaders’ attempts to avoid these problems by cabining their theory only underscore its implausibility. For example, the voters say that the leaders’ concession that state legislatures must follow “procedural” constitutional constraints, but not “substantive” constitutional constraints, has no basis in text, structure, history, or precedent. The voters say the same for the leaders’ distinction allowing state-court rulings that enforce “specific” rules but not “open-ended” ones.

SIGNIFICANCE

This case tests a novel approach to state legislative power over congressional elections, called the independent state legislative theory. That theory holds that state legislatures have plenary power over congressional elections, regardless of the constraints imposed by their own state constitutions. The strongest version of the theory says that state legislatures have absolute control over these elections, irrespective of any constraints in their state laws or state constitutions. This could mean, for example, that state legislatures acting alone could draw congressional districts or establish rules for congressional elections that would otherwise violate substantive individual rights and procedural requirements in their state laws and state constitutions—and that the state courts and other state authorities would be powerless to override them. Weaker versions of the theory hold that state legislatures have principal control over these elections, but that state law or state constitutions can impose some constraints. For example, weaker versions may require the legislature to follow certain procedures, or limit state-court review of a legislature’s action so that the state courts don’t override the legislature’s policy choices.

In modern times, the theory had its highest-profile appearance at the Court in Chief Justice William Rehnquists’s concurring opinion in Bush v. Gore. 531 U.S. 98 (2000). Chief Justice Rehnquist concurred with the per curiam decision reversing the Florida Supreme Court’s order requiring manual recounts in that hotly contested election. But he invoked an alternative basis for that conclusion: the Electors Clause. That Clause, like the Elections Clause, uses the term “legislature,” but for a different purpose. It provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. Quoting a much earlier case, McPherson v. Blacker, 146 U.S. 1 (1892), Chief Justice Rehnquist wrote that the Electors Clause “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” This was not the opinion of the Court, however; instead, Chief Justice Rehnquist wrote only for himself and Justices Antonin Scalia and Clarence Thomas.

More recently, Chief Justice John Roberts fiercely defended a version of the theory in his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission. 576 U.S. 787 (2015). Chief Justice Roberts, at great length, traced the text, history, and precedent of the Elections Clause to argue that an independent redistricting commission, created by a voter-driven ballot initiative, impermissibly stripped authority from the state legislature to draw congressional districts. Chief Justice Roberts seemed to articulate a relatively weaker version of the theory, however, which might allow for some restrictions on a state legislature (in particular, procedural restrictions). He was joined in his dissent by Justices Scalia, Thomas, and Samuel Alito. The Court in that case, after its own exhaustive examination of the text, history, and precedent of the Elections Clause, flatly rejected the theory. The Court instead held that “the Legislature” includes the state’s broader lawmaking process, including, in that case, ballot initiatives.

(As the competing opinions in Arizona State Legislature suggest, text, history, and precedent will play important roles in this case. Especially history. The parties sharply disagree about the original meaning of “the Legislature” in the Elections Clause. As so much recent scholarship has demonstrated, the plaintiffs have the far better case. Still, look for the Court to probe the historical evidence on both sides.)

Most recently, in this very case, the theory had an appearance when the Court first declined to intervene on an emergency basis. Justice Brett Kavanaugh concurred, and wrote that “the underlying Elections Clause question . . . is important” and that the Court should “definitively resolve it.” Justice Alito, joined by Justices Thomas and Neil Gorsuch, dissented, and argued that the North Carolina courts’ rulings violated the Elections Clause (or at least that the defendants’ “argument is stronger”). 

All this means that four or five justices already seem to endorse some version of the independent state legislature theory.

If the Court adopts the theory, the implications could be revolutionary. As the plaintiffs and their amici explain, the theory could completely upend how we conduct elections. The theory could threaten everything from state-court-ordered redistricting (as in this case) to independent commissions (as in Arizona State Legislature) to routine executive enforcement of state election law (for example, when a state executive officer orders accommodations to protect the right to vote). At the extreme, the theory could empower a state legislature to disregard any state statutory or constitutional provision, and to bypass any other coordinate branch of state government. Any efforts to cabin the theory to avoid some of these results could create their own problems, as the plaintiffs explain in response to the defendants’ suggested limits.

And more. If the Court adopts the independent state legislature theory as to the Elections Clause, some state legislatures could read that as an open invitation to apply the theory to the Electors Clause. Unless the Court somehow cabined such a ruling, state legislatures could read such a ruling to authorize them to appoint presidential electors any way they see fit, irrespective of the popular vote in their state. This was one theory that former President Trump’s team pushed when it tried to persuade certain state legislatures to appoint their electors to him in the 2020 presidential election. If the Court adopts the theory, it could, as a practical matter, empower such a move in the next presidential election. (To be sure, there are textual differences between the Elections Clause and the Electors Clause such that the independent state legislature could apply differently. But that might not matter to a state legislature bent on regulating an election in a particular way or appointing electors to a particular candidate.)

With all this at stake, there is an easy way for the Court to avoid these problems, while still acknowledging that state legislatures play an important role in regulating congressional elections. The Court could simply recognize that the North Carolina legislature properly regulated federal elections by delegating authority to review congressional districting to the state courts. The Court could issue such a ruling without determining the precise scope or sweep of the state legislature’s authority; it could simply acknowledge that the state legislature has regulated congressional elections, and that the state’s lawmaking apparatus acted consistently with its regulatory scheme.

Supreme Court to Test Free Speech Against Anti-Discrimination

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear arguments on Monday in 303 Creative v. Elenis, the case testing whether a website designer's free-speech claim trumps a state's anti-discrimination law. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

INTRODUCTION

The First Amendment prohibits government from compelling speech, and from regulating speech based on its content and viewpoint. But on the other hand, the First Amendment allows the government to regulate conduct, even if the regulation has an incidental effect on speech, so long as the regulation is unrelated to the expression of ideas. And it allows the government more freedom to regulate commercial speech. This case pits these First Amendment principles against each other.

ISSUE

Can a website designer refuse to create a website for a same-sex wedding, even though state law prohibits discrimination by sexual orientation?

FACTS

Lorie Smith is a graphic artist and website designer. She is the sole owner of 303 Creative, her custom design studio, where she provides website and graphic design, branding, marketing strategy, and social-media management services to her clients.

Smith will serve any client, regardless of race, creed, sexual orientation, or gender. But she will not create content that contradicts her Christian beliefs. So, for example, she “will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible, demeans or disparages someone, promotes atheism or gambling, endorses the taking of unborn life, incites violence, or promotes a concept of marriage that is not solely the union of one man and one woman.”

Smith expanded her portfolio to include custom wedding content and websites. According to Smith, “[e]very one of [her] wedding websites will not only express messages about the beauty and eternal commitment of the couples, but will also express approval of the couple’s marriage.” Smith designed a sample of a wedding website that includes a Bible passage, but the website doesn’t otherwise reflect the content of potential future websites. Smith says that her websites will bear a notice that reads, “Designed by 303Creative.com.”

Smith also designed a 303 Creative website page that announced her new wedding services. The design includes a statement that God is calling Smith “to explain His true story about marriage, and to use the talents and business He gave [Smith] to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.” The statement goes on:

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage—the very story He is calling me to promote.

Smith says that she “cannot yet share that message,” however, because “Colorado forbids it on pain of investigation, fines, and re-education.” Smith is referring to two provisions in the Colorado Anti-Discrimination Act, or CADA. The first, the Accommodations Clause, prohibits businesses that sell or offer services “to the public” from discriminating based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” The second, the Communications Clause, prohibits businesses from “display[ing]” a “notice” that “indicates that the full and equal enjoyment of the goods [or] services . . . will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable” based on a protected characteristic.

Smith brought a pre-enforcement challenge to CADA and sought an injunction halting its enforcements. She alleged that the two provisions violated her free-speech rights because they would require her to create websites for same-sex weddings. The district court ruled against Smith, and the United States Court of Appeals for the Tenth Circuit affirmed. This appeal followed.

CASE ANALYSIS

This case involves several different free-speech doctrines, and pits them against each other. On the one hand, the compelled-speech doctrine says that the government cannot require individuals to communicate a message they do not wish to communicate. In addition, the general rule against content- and viewpoint-based restrictions says that any government regulation of speech based on the content or the viewpoint of the speech must be narrowly tailored to meet a compelling government interest. (That test is called “strict scrutiny.”)

On the other hand, the conduct-as-speech doctrine allows the government to regulate speech that is incidental to conduct at a lower level of scrutiny (“intermediate scrutiny”), so long as the regulation is not related to the expression of ideas. Moreover, the commercial-speech doctrine allows the government to regulate speech promoting a commercial exchange also at a lower level of scrutiny.

The parties frame their arguments around these competing doctrines.

Smith argues first that CADA compels her to speak in violation of the First Amendment. She says that her wedding websites amount to “pure speech,” and that CADA, by requiring her to create websites for weddings that contradict her beliefs, impermissibly compels her to speak in violation of her free-speech rights.

Smith points to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in support of her claim. The Court in that case ruled that the First Amendment allowed the organizers of a public parade celebrating Irish heritage to exclude an LGBTQ+ group, even though anti-discrimination law prohibited the organizers from discriminating on the basis of sexual orientation. Smith says that under Hurley when an anti-discrimination law “makes ‘speech itself . . . the public accommodation,’ and forces someone to ‘alter’ their ‘expressive content,’ the government must satisfy strict scrutiny,” which it cannot do here. According to Smith, Hurley applies squarely to her case: “CADA makes an artist’s speech the accommodation, and Colorado’s application of the law to an artist like Smith forces her to alter her expressive content in untenable ways.”

Smith contends that she does not lose her free-speech rights just because she creates speech as part of her business. She says that CADA’s application to her speech is not “incidental” to her conduct; instead, CADA directly regulates her “pure speech.” Moreover, she claims that she is not a “passive conduit” for her client’s messages; instead, she creates the messages herself, and “retains final editorial control over them.” Smith claims this is “[her] speech and her message.”

Smith argues next that CADA’s two provisions impermissibly regulate her speech based on its content and its viewpoint. She says that both provisions require her to promote content and a viewpoint that she finds objectionable—any marriage other than one between one man and one woman. Smith claims that CADA does not serve a compelling interest in enforcing the two provisions, because, while a state may have a general interest in protecting equal access to the marketplace, it has no compelling interest in “ensuring [general] access to a particular person’s unique, artistic product.” Moreover, she contends that CADA is not narrowly tailored, because the state “has numerous, less burdensome alternatives to achieve any legitimate interests it might articulate.” For example, Smith says that “Colorado could interpret CADA to allow speakers who serve all people to decline specific projects based on their message,” it could “enact[] textual exemptions for artists who decline projects based on their messages,” it could exempt services for the “wedding industry,” or it could limit CADA’s reach to “physical spaces.” 

Finally, Smith argues that neither the anti-discrimination context nor the topic of marriage “justifies an exception to th[e] cardinal rule” that government cannot “violate artists’ freedom of conscience or compel them to ‘mouth support for views they find objectionable.’”

The state counters that CADA regulates Smith’s business, not her speech. The state says that a business like 303 Creative can decide for itself what it would like to sell. A business can even define its services quite narrowly, for example, “only websites that include biblical quotes describing marriage as the union of one man and one woman.” But the state contends that once a business decides what to sell, CADA requires the business to sell “to all without regard to a customer’s protected characteristic.” In other words, according to the state, CADA regulates sales, not the services or products sold. And “it does not prohibit or compel the speech of any business.”

Moreover, the state says that CADA does not regulate expressive conduct. According to the state, “[r]outine commercial transactions do not become expressive conduct just because the business believes a sale would convey approval of the buyer.” But to the extent that the Court “needs to consider the content of the Company’s websites to determine whether the Company will deny equal access to its services,” the state says that the case is not yet ripe for judicial review. According to the state, that’s because nobody has asked Smith to create a website for a same-sex marriage (although Smith claims that she received an inquiry), and the state has not required her to create such a website.

The state argues next that even if the Accommodations Clause burdens Smith’s speech, the burden is “incidental,” that is, not related to the expression of Smith’s ideas. As such, the state says that the Clause is subject to a lower level of review, intermediate scrutiny, and easily passes.

But even if the Court were to apply strict scrutiny, the state argues that the Accommodations Clause passes muster. The state claims that it has a compelling interest “in ensuring equal access to publicly available goods and services”—an interest that is “rooted in this nation’s history and traditions, which has long recognized both the material and dignitary harms of the denial of service.” Moreover, the state contends that the Accommodations Clause is narrowly tailored to meet this interest, because “[i]t targets only specific commercial conduct: the discriminatory sale of products and services by businesses open to the public.” The state contends that Smith’s proposed exemptions (which purport to show why CADA is not narrowly tailored) “would upend antidiscrimination law—and other laws too”—by “depart[ing] from this Court’s doctrine and creat[ing] an enforcement regime riddled with uncertainty and inconsistency.”

Finally, as to the Communications Clause, the state argues that “[i]t prohibits only commercial speech that facilitates illegal conduct—expression that receives no free speech protection.” The state says that the Communications Clause does not prohibit Smith from expressing her views; it only prohibits her from advertising that she will deny equal access to her services.

The government weighed in as amicus to support the state. It makes substantially similar arguments.

SIGNIFICANCE

If this case seems familiar, that’s because it is. Ever since states started to recognize same-sex marriages, wedding-service providers have challenged state anti-discrimination laws as violating their rights to free exercise of religion and free speech. The Court famously ruled in one of these cases just four years ago. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 (U.S.)__ (2018), the Court ruled that the Colorado Civil Rights Commission’s application of CADA—the same CADA that’s at issue in this case—violated a cakebaker’s free-exercise right to refuse to bake a cake for a same-sex wedding. The Court held that some of the commissioners’ statements reflected anti-religious animus against the cakebaker, and therefore the Commission’s ruling against the cakebaker violated the Free Exercise Clause.

This case is the fully anticipated follow-up to Masterpiece. But unlike Masterpiece, this case comes to the Court as a free-speech case. (The cake-baker in Masterpiece also raised a free-speech claim, but the Court did not take it up.) It thus gives the Court yet another chance to test individual constitutional rights against a state’s anti-discrimination laws, albeit under a different doctrine.

As a free-speech case, 303 Creative will force the Court to navigate some distinctive landmines with roundly discredited historical antecedents. For example, Smith’s proposed statement echoes and amplifies earlier statements by many commercial establishments that they will not serve individuals of a particular race, ethnicity, or nationality. Similarly, Smith’s proposed exception from anti-discrimination laws echoes and amplifies earlier statements by many commercial establishments and individuals that they have a free-speech or free-association right to discriminate, anti-discrimination laws notwithstanding.

Smith tries to provide the Court with a roadmap through these landmines. She does this by focusing narrowly on her work as an “artist” with a creative message (and not just an ordinary business), who proposes to work in a particular area, weddings, where views can be strong and mixed. It’s not at all clear that Smith’s roadmap actually dodges the landmines, though. As the state contends, her efforts to narrow her case and distinguish her work may simply create confusion and uncertainty as to the application of anti-discrimination law.

This could mean that any ruling for Smith would open the door wide for other exemptions from anti-discrimination laws. For example, even a narrow ruling for Smith could invite other individuals and businesses to cast themselves as “artists,” or define their work as serving a particular market that is inextricably tied up with speech. (It’s easy to see how any variety of individuals and businesses could lodge these claims.) It could also invite individuals and businesses to seek exemptions from anti-discrimination laws for those discredited historical practices, mentioned above. Given the nature of this case (in contrast to Masterpiece, where there was a record of enforcement), there may be no obvious way for the Court to rule for Smith while not effectively drilling a tunnel through anti-discrimination laws.

One final observation. The Court’s jurisprudence in this area—testing First Amendment rights against anti-discrimination laws—seems to treat laws protecting against LGBTQ+ discrimination less favorably than it treats laws protecting against other kinds of discrimination. The Court doesn’t specifically acknowledge this, however, much less provide a principled reason for the difference.

If the Court rules for Smith, it may have to say that quiet part out loud. In other words, it may have to explain why free speech protects Smith’s statements that she won’t create websites for same-sex weddings, even if free speech would not protect her statements that she won’t create websites for, say, Black weddings. Any attempt to explain this difference could prove exceedingly embarrassing (and uncomfortably revealing) for the Court. Yet a ruling for Smith without this explanation will simply invite the next inevitable case, testing whether free-speech protects a business’s announcement that they will not serve Black people.

 

Ninth Circuit Upholds California's Recall Process

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit this week rebuffed a challenge to California's recall process. The ruling means that the process stays in place.

The case, Clark v. Weber, arose when a voter who opposed the recall of Governor Newsom argued that the state's recall process violated the Constitution. Under the process, voters first vote whether to recall the official. If a majority votes to recall, the official is recalled. Voters next vote for a replacement (in case the first vote results in a recall). Any candidate for replacement who gets a plurality wins (again, assuming that the first vote results in a recall). The incumbent cannot run as a candidate in that second vote.

Clark argued that the process violated one-person-one-vote, because, as a Newsom supporter, he only had one vote (in the first part of the process), whereas voters who opposed Newsom had two votes. He also argued that an incumbent must receive a majority to stay in office, whereas a challenger needs to get only a plurality.

The court rejected both theories. The court said that California's process is really two separate elections run together, and that everyone gets a vote in both. To the extent that Clark's choices don't include the incumbent in the second election, the court said that this wasn't a severe restriction on the right to vote. (The court analogized the exclusion of the incumbent to term-limit laws, which the courts have upheld). The court said that the state easily justified this restriction based on its important interest in maintaining the efficacy of its recall procedure.

Second Circuit Says University Officials Get QI for Revoking Scholarship

Steven D. Schwinn, University of Illinois Chicago School of Law

The Second Circuit ruled this week that University of Connecticut officials enjoyed qualified immunity from a UConn soccer player's free-speech and due process claims after the officials terminated the player's scholarship for raising her middle finger on camera after a nationally broadcast game. At the same time, the court ruled that there was sufficient evidence to allow the player's Title IX claim to move forward.

The case, Radwan v. Manuel, arose when Noriana Radwan, a UConn soccer player, raised her middle finger on camera after a nationally televised game. UConn officials suspended her from further tournament play and later revoked her one-year scholarship. Radwan sued, arguing that the move violated the First Amendment, due process, and Title IX.

The Second Circuit ruled that UConn officials enjoyed qualified immunity against the free-speech claim, because "the right of a student-athlete at a university, while in public and on the playing field, to make a vulgar or offensive comment or gesture without suffering disciplinary consequences" wasn't clearly established. The court explained:

Although we agree that the Supreme Court has suggested that its analyses in addressing the First Amendment in the public elementary and high school settings (including Hazelwood and Fraser) may not apply equally to the university setting, neither the Supreme Court nor any circuit court has yet provided an alternative legal standard or framework to help university administrators discern the precise constitutional line in such circumstances, especially when the student engages in speech while wearing the university's uniform as part of an extracurricular activity.

As to the due process claim, the court held that a fixed-term athletic scholarship terminable only for cause gave rise to a constitutionally protected property right. But it said that this right wasn't clearly established when officials revoked Radwan's scholarship.

The court ruled for Radwan on her Title IX claim, however, saying that "taken as a whole and construed most favorably to Radwan as the non-moving party, [the evidence] is sufficient to create genuine issues of material fact as to whether Radwan received a more serious disciplinary sanction at UConn because of her gender." That's not a final ruling on the Title IX claim; it only allows the claim to move forward.

Eleventh Circuit Vacates Special Master Order in Mar-A-Lago Docs Case

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eleventh Circuit yesterday vacated a district court order appointing a special master to review the government's seized documents from Mar-A-Lago. The court also instructed the district court to dismiss the underlying case.

The ruling deals a serious blow to Trump's efforts to stall DOJ review of seized documents. But if history is any guide, we're sure to see some additional efforts to stall.

We last posted here.

The ruling isn't a surprise, given the court's earlier ruling that the district court lacked equitable jurisdiction to appoint the special master to review classified material. In that order, the court ruled that the government hadn't displayed "callous disregard" of Trump's constitutional rights--an essential factor in determining when a court has equitable jurisdiction.

The lack of callous disregard logically also applies to all the documents seized at Mar-A-Lago. (After all, the classified documents and unclassified documents were seized together.) And so the court ruled yesterday that the district court lacked equitable jurisdiction to appoint the special master to review all the documents for this same reason.

Jail Policy for Foreign-Born Detainees Violates Equal Protection

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eighth Circuit ruled this week that a county jail's policy of holding otherwise releasable detainees based on their nation of birth violated equal protection.

The case, Parada v. Anoka County, tested the county jail's policy of holding every otherwise releasable detainee born outside the United States until jail authorities contacted ICE. The wait could last between 20 minutes and 6 hours.

The Eighth Circuit said the policy violated equal protection. That's because it discriminates based on nation of birth, far too rough a cut to satisfy the strict scrutiny standard that applies when government discriminates by national origin. The court noted that the county could have detained persons based on citizenship, instead, a classification that's both neutral with regard to national origin and a closer fit to the county's objectives.

While the court assumed for the purpose of analysis that the county's interest in its policy was "compelling," the court also expressed "doubts about it." It wrote, "Anoka County makes no suggestion it has an interest in stemming the tide of illegal immigration. It instead frames its interest as giving 'ICE an opportunity to investigate the legal status of individuals who [are] already in custody' without 'overburden[ing]' the agency by passing along too many false positives."

SCOTUS to Hear Biden Loan Forgiveness Case

The Supreme Court today agreed to hear a case challenging the Biden Administration's federal student loan forgiveness program. The case comes to the Court on the government's application to vacate the injunction halting the program entered by the Eighth Circuit. We last posted here.

The Court will hear oral argument on the program in February. In the meantime, the Eighth Circuit's injunction stays in place. The Court gave no clue as to its thinking on the merits in its brief order.

No Absolute Immunity for Trump for January 6 Activities

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Emmet G. Sullivan (D.D.C.) ruled this week that former President Donald Trump does not have absolute immunity from a civil-damage lawsuit for his behavior related to the insurrection on January 6. The ruling came in an order granting the plaintiffs' motion to file a second amended complaint in a lawsuit against Trump and others for interfering with the electoral count. In other words, it's not a final ruling on the merits; it just means that portions of the case against Trump can move forward.

The court held that Trump's activities leading up to and on January 6 in an effort to disrupt the electoral count were not within the "outer perimeter" of his official duties as president, and therefore, under Nixon v. Fitzgerald, he did not enjoy absolute immunity from civil-damage claims based upon those activities. The court held that Trump's activities were political, not official, because they "entirely concern his efforts to remain in office for a second term."

The this is now the third time that the D.C. district held that Trump's January 6-related activities were outside the scope of his official duties. See Thompson v. Trump (also denying absolute immunity) and United States v. Chrestman (rejecting a defense in a criminal case against a January 6 insurrectionist).

Can the Biden Administration Issue Guidelines that Prioritize Immigration Enforcement?

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral argument tomorrow in United States v. Texas, the case testing whether the Biden Administration's guidelines that prioritize immigration enforcement violate federal law. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

In September 2021, the Department of Homeland Security issued Guidelines that set priorities for the enforcement of federal immigration law. In particular, the Guidelines prioritized three classes of noncitizens for “apprehension and removal”: (1) noncitizens who pose “a danger to national security,” for example, suspected terrorists; (2) noncitizens who pose a “threat to public safety, typically because of serious criminal conduct”; and (3) noncitizens who pose a “threat to border security,” that is, noncitizens who arrived in the United States after November 1, 2020. DHS set these priorities because Congress has not allocated sufficient resources for the agency to apprehend and remove all removable noncitizens. Texas and Louisiana sued to halt the Guidelines. The district court ruled in their favor and vacated the Guidelines nationwide. The Fifth Circuit and the Supreme Court both declined to stay that ruling pending appeal.

INTRODUCTION

Federal immigration law, by its plain terms, requires the Department of Homeland Security (DHS) to apprehend and remove removable noncitizens in certain circumstances. But given limited resources, DHS must exercise judgment in complying with those requirements. Moreover, the law generally grants executive officers some discretion in how they enforce the law. This case pits federal immigration law against those enforcement realities. But before we even get to the merits, this case raises significant questions over the states’ standing to sue, and whether the district court had authority to vacate the Guidelines nationwide.

ISSUES

1. Do states have standing to challenge government Guidelines that set priorities for the enforcement of federal immigration law?
2. Do the federal Guidelines violate the substantive provisions of immigration law?
3. Did the district court have authority to vacate the Guidelines?

FACTS

In September 2021, the Secretary of Homeland Security issued Guidelines for the Enforcement of Civil Immigration Law (Guidelines). The Guidelines set priorities for the “apprehension and removal” of noncitizens by Immigration and Customs Enforcement (ICE). The Secretary explained in an accompanying memo (the Considerations Memo) that the Guidelines were necessary because “there are more than 11 million undocumented or otherwise removable noncitizens in the United States,” yet DHS lacked “the resources to apprehend and seek the removal of every one of these noncitizens.” (We refer to the Guidelines and the Considerations Memo together as the “Guidelines” below.) In other words, Congress has allocated just a fraction of the resources that the Department of Homeland Security (DHS) would need to apprehend and remove every noncitizen who is deportable under the law, and the agency therefore needs to make choices in how it prioritizes enforcement. (The Guidelines apply only to “apprehension and removal.” They do not apply to “detention and release determinations” for noncitizens already in DHS custody.)

The Guidelines prioritize three classes of noncitizens for “apprehension and removal”: (1) noncitizens who pose “a danger to national security,” for example, suspected terrorists; (2) noncitizens who pose a “threat to public safety, typically because of serious criminal conduct”; and (3) noncitizens who pose a “threat to border security,” that is, noncitizens who arrived in the United States after November 1, 2020. In determining whether a noncitizen poses a threat to public safety, the Guidelines call for an assessment based on “the totality of the circumstances,” and not “bright lines or categories.” The Guidelines set “aggravating factors” that weigh in favor of enforcement, including “the gravity of the offense” and the “use of a firearm.” They also set “mitigating factors,” including “tender age” and military service.

The Guidelines, by their own terms, are discretionary. The Guidelines do “not compel an action to be taken or not taken in any particular case.” Instead, they leave “the exercise of prosecutorial discretion to the judgment of” ICE officers. And while they provide for supervisory review of a line-officer’s enforcement decision, the Guidelines do not “create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” The Secretary’s Considerations Memo explained that the Guidelines are “consistent with” and “do not purport to override” two statutory provisions that require that certain noncitizens remain in detention during removal proceedings or while awaiting removal.

Texas and Louisiana sued to halt the Guidelines. (The states previously sued to halt earlier versions of the Guidelines. But that case was dismissed when the Secretary issued the final version of the Guidelines in September 2021.) The district court ruled for the states and vacated the Guidelines nationwide. The United States Court of Appeals for the Fifth Circuit denied a stay of the district court’s order pending appeal. The Court also denied a stay pending appeal, and agreed to hear the case.

CASE ANALYSIS

This case raises three distinct issues. Let’s examine them one at a time.

Standing

Before we even get to the merits, the government argues that the states lack standing to sue, because the states have not suffered a sufficiently direct harm. The government says that the states have alleged only that the Guidelines will require them to spend more on law enforcement and social services. But the government claims that these kinds of indirect harms are never enough for states to sue the government. (If they were, states could sue the government over any number of federal policies and programs.) Moreover, the government asserts that the states lack standing, because, as a general matter, a third party that is not subject to prosecution itself lacks standing to sue the government over its prosecutorial decisions. Finally, the government contends that the Guidelines will not necessarily lead to increased costs for the states, because they only prioritize enforcement given limited resources (and do not cut overall enforcement under limited resources).

The states counter that they have standing, because the Guidelines caused them to “bear costs related to law enforcement, recidivism, healthcare, and education,” as the district court concluded. The states say that this position is not unbounded, as the government contends. Instead, they assert that their position requires states to demonstrate the same standing requirements as other litigants, “albeit with some amount of special solicitude under certain circumstances owing to their unique place in the federal system.” The states contend that the government’s position would upend the Court’s longstanding approach to state standing by making states “disfavored litigants.”

The Guidelines’ Legality

In testing the legality of the Guidelines, two provisions of federal immigration law are principally in play. The first, at 8 U.S.C. § 1226(c), says that DHS “shall take into custody” noncitizens convicted of certain offenses when they are released from criminal custody and “may release” them “only” in limited circumstances. According to DHS, this means that these noncitizens “generally must remain in custody during the pendency of their removal proceedings,” unless their release is authorized by law or court order. But at the same time, DHS and its predecessor agency have consistently interpreted Section 1226(c) to retain the agencies’ “general prosecutorial discretion” to “choose not to pursue removal of such an individual in the first place.”

The second provision, at 8 U.S.C. § 1231(a)(1), says that DHS “shall remove” a noncitizen within 90 days after a final order of removal or other triggering event. Moreover, DHS “shall detain” such noncitizens during the 90-day removal period. “Under no circumstance” shall DHS release a noncitizen who is removable on certain criminal and national-security grounds. According to DHS, such a noncitizen “must remain detained for the duration of the removal period unless release is required to comply with a court order.”

The government argues that the Guidelines do not violate these statutory provisions. As an initial matter, it says that Section 1226(e) bars judicial review of the Guidelines. (Section 1226(e) prohibits review of the Secretary’s “discretionary judgment regarding the application of” Section 1226 and prohibits courts from “set[ting] aside any action or decision . . . regarding the detention or release of any” noncitizen.) It also says that Section 1231(h) precludes courts from requiring the government to comply with Section 1231. (Section 1231(h) reads, “Nothing in [Section 1231] shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States . . . .”)

Going to the merits, the government argues that the mandatory language in Sections 1226 and 1231 (“shall take into custody” and “shall detain”) do not override the general principal of law-enforcement discretion. The government says that this conclusion is supported by the context and history of those provisions and by the “longstanding practice spanning multiple Administrations.” According to the government, this conclusion especially holds when, as here, the government faces “perennial constraints on detention capacity.” Moreover, the government asserts that its prioritization was reasonable, and that the government sufficiently explained its reasons (and, contrary to the district court’s findings, adequately considered countervailing factors, like the risk of recidivism by non-prioritized noncitizens and the states’ interests).

Finally, the government argues that the Guidelines do not violate the requirements for notice-and-comment rulemaking under the Administrative Procedure Act (APA). The government contends that the Guidelines meet the exceptions for “general statements of policy” and rules of agency “practice” or “procedure” under the APA, and therefore do not require notice-and-comment procedures.  

The states counter that Sections 1226 and 1231 contain mandatory language that requires the government to detain nonimmigrants. They say that the Guidelines violate these plain requirements. Moreover, the states contend that the Guidelines are arbitrary and capricious in violation of the APA, because they fail “to consider important aspects of the problems that criminal aliens create, including recidivism and States’ reliance interests” on federal enforcement of immigration law. Finally, they assert that the government failed to comply with notice-and-comment procedures under the APA in issuing the Guidelines. They contend that these procedures are required, because the Guidelines “substantively changed a regulatory regime.”

The District Court’s Vacatur

The government argues first that the district court’s vacatur was improper under 5 U.S.C. § 706(2), a part of the APA that authorizes courts only to “hold unlawful and set aside” agency action. The government says that this provision “merely directs a court to disregard an unlawful agency action in resolving the case before it,” not to nullify or render it void. According to the government, this means that the district court only had authority to grant relief (like an injunction and declaratory relief) to the parties before it, and not to vacate the Guidelines nationwide.

The government argues that even if Section 706(2) authorized the district court’s nationwide vacatur, a provision in federal immigration law, 8 U.S.C. § 1252(f)(1), prohibits that relief in this context. Section 1252(f)(1) prevents courts (except the Supreme Court) from “enjoin[ing] or restrain[ing]” government immigration policies, except as they apply “to an individual alien against whom proceedings . . . have been initiated.” The government claims that the district court’s vacatur violates the plain terms of this provision, because it is not limited to the case of “an individual alien.”

The states counter that neither the APA nor Section 1252(f)(1) prevented the district court from vacating the Guidelines. As to the APA, the states say that the government’s position “that the APA does not authorize vacatur at all ignores text, context, and decades of practice and precedent.” Moreover, they say that Section 1252(f)(1)’s prohibition on court orders that “enjoin or restrain” government policies does not apply to vacatur. They contend that injunctive relief and vacatur “are different remedies with different consequences that require different showings.” For these reasons, the states say that the district court had full authority to vacate the Guidelines.

SIGNIFICANCE

On its face, this case tests whether the mandatory immigration enforcement provisions in federal law are, in fact, mandatory. The plain language of the law, read quite narrowly, seems to require DHS to apprehend and detain noncitizens in certain circumstances. But the broader context and history of the law, along with DHS’s limited resources and the reality of executive discretion in enforcing the law, allow for significant leeway in how DHS implements those provisions. This case tests the former against the latter.

Telescoping out, the case also tests a decades-long history of executive exercise of discretion in the enforcement of immigration law, including the apprehension and detention of deportable noncitizens. Administrations under presidents of both parties have long issued guidelines and priorities for immigration enforcement similar to the Guidelines at issue here. For very practical and immediate reasons, the government has issued guidelines and priorities in order to channel limited resources, which have been perpetually insufficient to apprehend and detain all deportable noncitizens. For only slightly less direct reasons, the government has issued guidelines and priorities in order to ensure fairness in immigration enforcement and to reflect important national interests, sometimes related to foreign affairs and national security. Reading the precise provisions narrowly and literally, and ignoring the broader context and history, as the states would have it, could dispense with the long-running and bipartisan exercise of discretion in immigration enforcement.

Telescoping out once more, this case is just one front in the increasingly partisan battles over immigration. In particular, the case is one among the several efforts that border states and certain Republican state officials are lodging, or have lodged, against immigration policies and practices by Democrats. As an effort in the courts (and not just in ordinary politics), this case raises important questions about the authority and role of the courts in this increasingly partisan arena. For example: Should the courts hear the states’ challenge to federal enforcement priorities when the states’ only harms are secondary, and may not be remedied by judicial relief, anyway? Is it appropriate for a single district court, hand-selected by the plaintiffs, to vacate the Guidelines nationwide?

Notwithstanding the multi-layered underlying issues, however, the case gives the Court several easy exit ramps. For one, the Court could rule that the states lack standing. For another, the Court could rule that the district court lacked authority to vacate the Guidelines nationwide. For a third, the Court could rule that the immigration provisions cited by the states themselves bar courts from halting government policy. Look for those justices who would prefer to stay out of this hot-button political dispute to lean heavily into these issues at oral argument.

 

Does the Honest Services Statute Apply to a Person Who Left Government but Came Back?

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court heard oral argument today in Percoco v. United States, the case testing whether the honest services statute applies against a person who left government service, but then returned. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

Joseph Percoco served as the Governor’s Executive Deputy Secretary to then-New York Governor Andrew Cuomo. He resigned that office in April 2014 to manage the Governor’s reelection campaign. During this period, he arranged through a lobbyist to receive monetary payments from a corporation in exchange for pressuring state officials to provide funding for the corporation without complying with a potentially expensive labor peace agreement. Percoco succeeded in pressuring officials to drop the requirement right around the time that he returned to his prior position in the Governor’s Office. 

INTRODUCTION

The federal honest-services-fraud statute makes it a crime for a person to communicate over interstate channels any “scheme or artifice to deprive another of the intangible right of honest services,” that is, the citizenry’s “intangible” right to honest and impartial government free of corruption. The statute most obviously criminalizes the transmission of any scheme to defraud the government by a public employee. This case tests whether the statute also applies to persons like Percoco, who are not public employees, but who nevertheless exercise some level of government authority and influence and who later return to public office.

ISSUE

Does the federal honest-services-fraud statute apply to persons who are no longer government officials, but who retain some level of government authority and who later return to public office?

FACTS

Starting in 2011, Joseph Percoco served as the Governor’s Executive Deputy Secretary to then-New York Governor Andrew Cuomo. In this role, Percoco was one of the most senior officials in the Governor’s Office (also called the “Executive Chamber”), with a portfolio that included a variety of significant public-policy issues.

In mid-April 2014, Percoco resigned his position in the Governor’s Office to manage Governor Cuomo’s reelection campaign. As a result, Percoco did not formally exercise official authority, but he nevertheless continued to use his public office “to conduct state business.” Others around him understood that during this time Percoco’s “grip on power never changed, diminished, or dissipated,” that he “instruct[ed]” the governor’s staff “on various non-campaign topics,” and that and that he “spoke for the governor” on legislative matters.

Around this time (there may be some dispute as to the exact timing), Percoco contacted Todd Howe, a lobbyist, to ask if Howe could help him find a client who could pay him while he was working on the campaign. Howe identified Steven Aiello, whose company, COR Development, sought to obtain funding from Empire State Development (ESD), a state agency, without entering into a potentially expensive labor peace agreement. In July 2014, Aiello e-mailed Howe asking whether “there [is] any way Joe P can help us” to avoid a labor peace agreement “while he is off the 2nd floor [the Governor’s Office] working on the Campaign.”

(This wasn’t the first time that Percoco worked through Howe to execute a bribery scheme. When he was still officially in the Governor’s Office, Percoco worked through Howe to secure a lucrative job for his wife in exchange for Percoco’s assistance in obtaining a power purchase agreement for Competitive Power Venture (CPV), an energy company associated with Howe.)

In early August, COR Development funneled $15,000 through an entity controlled by Howe to Percoco’s wife. Later, in October, after Aiello, Howe, and Percoco exchanged e-mails about the labor peace agreement, COR Development funneled an additional $20,000 through Howe to Percoco’s wife.

Around the same time, Percoco separately told Howe and a bank that he planned to return to Governor Cuomo’s administration after the election. On November 25, after Governor Cuomo won reelection, Percoco signed forms related to his reinstatement. On December 1, he executed those forms before a notary.

On December 3, Aiello’s partner, Joseph Gerardi, pressured Howe by e-mail to resolve the labor peace agreement issue. Howe forwarded the e-mail to Percoco, who then called the Deputy Director of State Operations, the official responsible for overseeing ESD, and told him that the project should move forward without a labor peace agreement. The Deputy Director understood Percoco’s instruction as “pressure” from his “principal[],” a “senior staff member[].” The Deputy Director then directed senor officials at ESD “that a labor peace agreement . . . should not be required as part of this project.” The next day, ESD officials informed COR Development of the decision.

On December 8, Percoco formally resumed his prior position in the Governor’s Office. He instructed officials to prioritize the release to funds owed to COR Development and secured an additional raise for Aiello’s son, who worked in the Executive Chamber.

In 2017, Percoco was charged in federal court with two counts of conspiring to commit honest-services wire fraud, two counts of soliciting bribes and gratuities, and three counts of Hobbs Act extortion. (Aiello, Gerardi, and others were charged with these and other crimes, too.)

After trial, the court instructed the jury that the government had to prove that Percoco owed a duty of honest services to the public in order to convict Percoco on the honest-services charges. The court told the jury that Percoco owed such a duty “[w]hile [he] was employed by the state . . . by virtue of his official position.” The court also explained that the jury could find that Percoco owed a duty of honest services to the public even “when he was not a state employee if you find that at the time he owed the public a fiduciary duty.” The court told the jury that they could find that Percoco owed a fiduciary duty if they determined (1) that he “dominated and controlled any governmental business” and (2) that “people working in the government actually relied on him because of a special relationship he had with the government.”

The jury found Percoco guilty of conspiring to commit honest-services wire fraud related to the COR Development scheme. (The jury also found him guilty on charges of honest-services fraud and solicitation of bribes or gratuities in the other bribery scheme, mentioned parenthetically above. The jury acquitted him on the other counts. Aiello was convicted of conspiring to commit honest-services wire fraud related to the COR Development scheme and acquitted on other counts.) The United States Court of Appeals for the Second Circuit affirmed. This appeal followed.

CASE ANALYSIS

In order to see the parties’ arguments more clearly, let’s take a look at a little history. Before 1987, the federal wire- and mail-fraud statutes prohibited any scheme to defraud the government. The prohibition plainly applied to public officers who were formally employed by the government who corruptly defrauded the government of money or property. But at the time, all federal courts of appeals interpreted these statutes to prohibit honest-services fraud, too. In other words, the courts of appeals said that the statute also prohibited any scheme to defraud the government of the citizenry’s “intangible” right to honest and impartial government, regardless of whether the scheme directly involved government money or property.

As a result, in some cases the statutes applied to certain private citizens, too. In particular, they applied to those private citizens who were so closely aligned with the government that they could defraud the government of the citizenry’s intangible right to honest and impartial government. For example, as relevant here, the Second Circuit in United States v. Margiotta noted that “[i]t requires little imaginative leap to conclude that individuals who in reality or effect are the government owe a fiduciary duty to the citizenry,” just as much as public employees. The court looked to common law and New York law to determine whether the prohibition applied to a particular private person and ultimately concluded that “the concepts of reliance, and de facto control and dominance” are “at the heart of the fiduciary relationship.” United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982).

Then, in 1987, the Supreme Court interpreted the mail-fraud statute “as limited in scope to the protection of property rights.” McNally v. United States, 483 U.S. 350 (1987). The Court in McNally reversed a Sixth Circuit ruling that, relying on Margiotta, held that “an individual without formal office” was a “public fiduciary,” because he “substantially participated in government affairs and exercised significant, if not exclusive, control” of certain government decisions. The ruling meant that the wire-fraud statute no longer applied to protect the “intangible” right to honest services.

Congress responded the next year by enacting Section 1346, the honest-services-fraud statute at issue in this case. Section 1346 defined the “scheme or artifice” in the wire-fraud statute to “include[] a scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S.C. § 1346. In other words, Congress effectively overruled McNally.

But while Congress specifically included the “right of honest services” in Section 1346, it didn’t necessarily revive all pre-McNally caselaw in the circuits. In particular, Section 1346 didn’t obviously revive Margiotta and its holding that the fraud statutes applied to certain private persons. The Second Circuit ruled that it did, however, and upheld Prococo’s conviction on that basis.

Percoco argues first that Margiotta was wrong on its own terms. He says that “[u]nlike public officials, private citizens owe no fiduciary duty to act in the public interest,” because they “exercise no authority on [the government’s] behalf.” He contends that the whole idea of a republican government “is that private citizens and factions will advance their own parochial self-interests,” and that they cannot be bound by honest-services restrictions in the public sector. (Percoco claims that Margiotta’s reasoning doesn’t make sense in the private sector, either, where “[f]iduciary obligations arise from legal relationships (usually principal-agent), not from one party’s unilateral reliance on another,” as Margiotta would have it.)

Percoco argues next that Margiotta cannot survive the Court’s most recent rulings on government corruption statutes. He says that these most recent cases narrow the law and reinstate only the “core” of the pre-McNally caselaw to “paradigmatic cases of bribes and kickbacks” and “the sale of official authority.” He says that these simply don’t apply to private citizens.

Finally, Percoco argues that Margiotta raises “serious constitutional concerns.” He claims that the ruling threatens private persons’ First Amendment freedoms, potentially outlawing ordinary political advocacy and lobbying by private persons and even family members of government officials. Moreover, he says that the ruling “improperly puts federal courts in the position of regulating how private citizens interact with the government and its officials,” interfering with “this fundamental aspect of state sovereignty.” And finally, he contends that Margiotta’s approach is so vague that it “deprives citizens of the notice to which they are constitutionally entitled.”

For all of these reasons, Percoco argues that the honest-services-fraud statute cannot apply to him, because he was not a government official at the time of his actions.

The government counters that the honest-services-fraud statute can extend to certain private persons like Percoco. The government points to the plain language of the statute and its history (as described above) to say that the statute bans any “scheme or artifice to deprive another of the intangible right of honest services,” whether performed by a government officer or not. The government contends that the Court’s most recent cases support its position.

The government argues next that other federal statutes support its position, too. In particular, the government points to federal public bribery statutes that apply to private persons. The government says that Court interpretation of these statutes support its position that the honest-services-fraud statute applies to private persons, too. According to the government, that’s because “a person who is not a formal employee or agent of a government can still owe a duty of honest services . . . when the person has been selected to work for the government, or when the person actually exercises the powers of a government position with the acquiescence of the relevant government personnel.”

The government argues that Percoco easily fits within these principles. It says that at the time of the scheme, Percoco “was both (1) slated to return as the Executive Deputy Secretary, and (2) acting as a functional public official . . . .” The government contends that “[e]ither basis alone is sufficient to support his conviction.”

Finally, the government argues that the application of Section 1346 to persons like Percoco raises no constitutional issues. The government points out that Section 1346 contains a mens rea (or guilty mind) requirement, like the bribery statutes, and therefore provides fair notice. Moreover, it says that this application of Section 1346 raises no First Amendment concerns, “because lobbyists, family members, and the like are neither incoming nor functional government officials, as [Percoco] was.” Finally, the government contends that this application of Section 1346 does not interfere with state sovereignty, because “even assuming a violation of state law were required for [Percoco’s] conviction [under Section 1346], state bribery and ethics laws do not suggest that [Percoco’s] conduct was permissible.”

SIGNIFICANCE

As the parties point out, the Court in the last twelve years or so has circumscribed the reach Section 1346 and a similar bribery statute. In particular, in Skilling v. United States, the Court limited Section 1346 to bribery and kick-back schemes. 561 U.S. 358 (2010). More recently, in McDonnell v. United States, the Court held that an “official action” under the federal bribery statute is an action that involves a specific exercise of formal government power. 579 U.S. 550 (2016).

But while those rulings circumscribe the statutes, neither ruling squarely addresses the issue in this case, whether the honest-services-fraud statute applies to private persons.

Given the number and types of private persons who effectively control government decision-making in one way or another, this issue matters. Percoco’s case is a perfect illustration why. On the one hand, if Section 1346 applies only to government officials—and does not apply to Percoco and those like him (with very close relationships to the government)—this could sharply limit the statute’s reach and allow more government corruption, as in Percoco’s case itself. At the extreme, this could invite individuals to skirt criminal liability simply by formally severing their relationship with the government, even as they maintain a very close practical relationship with the government and effective control over government decision-making. On the other hand, if Section 1346 applies to Percoco and those like him, this could prevent and punish more corruption, again, as in Percoco’s case itself.

The case is therefore likely to come down to line-drawing. A bright-line rule that applies Section 1346 only to government officials has the benefits of determinacy, certainty, and easy applicability in the courts, even if it also has a relatively limited reach. A more nuanced rule that applies Section 1346 to certain private persons who effectively wield government power is necessarily less determinate and certain, and harder to apply in the courts, even if it also comes with relatively broader reach.

Percoco picks up on this and claims that any attempt to apply Section 1346 to anyone other than a government employee risks criminalizing historically protected activity like ordinary political advocacy and lobbying. (Percoco’s case is easily distinguishable from ordinary political advocacy and lobbying. He’s hardly the best messenger for this slippery-slope argument, to say the least.) While the Second Circuit thinks it developed a sufficiently determinate test in Margiotta to prevent this problem, look for the Supreme Court to be skeptical. And look for it to lean toward a bright-line rule in which Section 1346 applies only to government employees.

The Disqualification Clause Clause: What is it? How does it work?

Steven D. Schwinn, University of Illinois Chicago School of Law

Now that Trump has formally announced his candidacy in the 2024 presidential election, there's renewed buzz about the application of the Disqualification Clause. Here's a very brief explainer, along with some resources to help sort out what it is, and how it works.

First, the easy part: what it is. The Disqualification Clause disqualifies certain individuals from holding state and federal offices. The Clause, in Section 3 of the Fourteenth Amendment, was enacted shortly after the Civil War in order to bar confederate officers from holding public office. But its terms continue to apply today. It reads,

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be a vote of two-thirds of each House, remove such disability.

Next, the harder part: how it works. The Clause itself raises several questions. For one, the Clause doesn't say how it's enforced, or who can enforce it. We do have some clues, though. We know that Congress can enact legislation "to enforce . . . the provisions" of the Fourteenth Amendment (under Section 5 of the Fourteenth Amendment). We know that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (Art. I, Sec. 5.) And we know that state officials and even private individuals in some cases have authority to challenge the qualifications of candidates for state and federal offices by filing quo warranto lawsuits.

For another, the Clause doesn't specifically say whether it applies to the president. But there are clues: the weight of historical scholarship says that it does.

For a third, the Clause doesn't define "insurrection or rebellion" or "aid or comfort to the enemies thereof," and it doesn't say how to determine whether a person "engaged" in the former or "g[a]v[e]" the latter. Again, we have clues. We know that Congress can call forth the militia "to suppress Insurrection." And we know that Congress enacted the Insurrection Act, which authorizes the President to call up the armed forces and militia in response to "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings." Another part of the Insurrection Act authorizes the use of armed forces when insurrectionists "oppose[] or obstruct[] the execution of the laws of the United States or impede[] the course of justice under those laws." The Act holds accountable anyone who "incites, sets on foot, assists, or engages" in those acts.

As to "giv[ing] aid or comfort to the enemies," this may require some connection to a foreign and opposing government, not just a U.S. citizen opposing the U.S. government.

It seems clear that the January 6 insurrection was, indeed, an "insurrection or rebellion" under the Clause. And those who "incite[d], set[] on foot, assist[ed], or engage[d]" in that insurrection probably "engaged" in it for the purpose of the Clause.

But given the dearth of recent judicial precedent, we don't have a ton of contemporary judicial interpretation on enforcement. The Fourth Circuit earlier this year ruled that the 1872 Amnesty Act, which removed disqualification for confederate officers, did not remove disqualification for Madison Cawthorn in his bid for reelection to the House. The Eleventh Circuit ruled more recently that Marjorie Taylor Greene's case challenging a state process to determination disqualification was moot, because the process concluded in her favor. The best we have comes from a New Mexico state court that removed a county commissioner and prohibited him from seeking or holding any future office. That analysis is good, but it's just one court.

Rep. David Cicilline (D-RI) indicated last week that he's looking to introduce federal legislation that would ban Trump from the presidency. Other legislation is currently pending. In particular, H.R. 7906 authorizes the AG to investigate Section 3 disqualifications and pursue them in court.

CREW, which indicated earlier that it'd file to challenge Trump under the Disqualification Clause, issued letters to state AGs urging them to pursue quo warranto actions in their states. And FreeSpeechforPeople.org and Mi Familia Vota seek to garner public support for state AG actions to enforce the Disqualification Clause.

For more, here's a Congressional Research Service Legal Sidebar on the Clause.

AG Garland Appoints Special Counsel in 2020 Transfer-of-Power, Document Retention Investigations

AG Merrick Garland today appointed John L. Smith as special prosecutor in the investigations into efforts to interfere with the lawful transfer of power after the 2020 election and Trump's illegal retention of government documents at Mar-A-Lago. Smith is a former head of DOJ's Public Integrity Section and former chief prosecutor for the special court at the Hague.

The appointment means that the investigation and any criminal charges will now come from the special counsel, operating independently of ordinary DOJ channels. AG Garland likely made the appointment to avoid even the appearance of a conflict now that Trump declared his candidacy for the presidency in 2024. We don't know how quickly the special counsel will move, and we likely won't know that for some time. But the office isn't starting from scratch: it can pick up where DOJ left off its own investigations into these matters.

The appointment authorizes the special counsel to investigate these matters and to prosecute federal crimes that arose out of them. Neither investigation nor prosecution is limited to Trump (or anyone else). But the "authorization does not apply to prosecutions that are currently pending in the District of Columbia, as well as future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021." As the appointment explains, those matters "remain under the authority of the United States Attorney for the District of Columbia."

Here's AG Garland's announcement; here's the actual appointment. Here's a link to the DOJ regs authorizing the appointment of a special counsel, and outlining their powers and processes.

In addition to investigation the insurrection and document retention, AG Garland's appointment letter and the regs authorize the special counsel to investigate "any matters that arose or might arise directly" from those investigations, including obstruction and perjury.

The special counsel will operate almost entirely outside the DOJ's chain of command. But that doesn't mean that AG Garland is necessarily bound to all the special counsel's decisions. 28 C.F.R Sec. 600.7(b) provides:

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or procedural step, and may after review conclude that the action is so inappropriate or unwarranted under established Department practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress . . . .

Moreover, special counsel staff are "subject to disciplinary action for misconduct and breach of ethical duties," and the AG can remove the special counsel "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."

Trump Replies in Special Master Case

Steven D. Schwinn, University of Illinois Chicago School of Law

Former President Trump filed his brief in the Eleventh Circuit case testing whether a district judge had authority to appoint a special master to review documents seized at Mar-A-Lago. Trump's arguments are familiar, largely already rejected, and unpersuasive.

A short history might help contextualize this:

Two weeks after the FBI seized documents that Trump illegally removed from the White House, transported to his private residence, and illegally stored there, Trump sued, seeking (extraordinary) "judicial oversight" of the government's review of the documents. A district judge appointed a special master to conduct that review. The government filed a notice of appeal and moved the district court for a partial stay of its order as it applied to documents bearing classified markings. The district court rejected the motion, but the Eleventh Circuit reversed. The Eleventh Circuit held that the government was likely to prevail, because everyone agreed that the search did not display a callous disregard for Trump's constitutional rights--"the foremost consideration" in determining whether the district court properly exercised jurisdiction in appointing the special master in the first place. The Supreme Court declined to vacate that ruling.

The Eleventh Circuit ruling went to the government's motion for a partial stay as the district court's order applied to classified documents. But the court's reasoning--that last part, that everyone agreed that the search (of all the documents, not just the classified documents) didn't display a callous disregard for Trump's constitutional rights--gave the government an opening to argue that the district court's original appointment of a special master was completely invalid. The government then argued (1) that the court lacked authority to appoint the special master at all, and (2) that the court lacked authority to stop the government from reviewing the documents pending the outcome of the special master review.

Trump's brief responds to the government's arguments. On the merits of the district court's appointment of the special master, Trump argues that the government's lack of callous disregard of his rights is not determinative, and that other equitable factors weigh in favor of the court's authority. As to the district court's order halting government review pending special master review, Trump argues that he's likely to succeed on the merits, because some of the documents are his, some are protected by privilege, and he automatically declassified any documents marked "classified" simply by treating them as unclassified documents. (He says that as president he had authority to declassify, and therefore he could declassify simply by thinking it).

Trump's arguments mostly rehash his claims that the courts have already flatly rejected. (Maybe that's why the court set oral argument for next Tuesday: easy case, easy ruling.) The brief--and Trump's entire case, from his original complaint--is simply an effort to drag out and frustrate the FBI's investigation, and even run the clock.