Why Can’t You Buy a Starbucks on the Interstate?


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If you’re like me, you may have had an experience like this. You’re driving after dark on an Interstate highway and you need a good cup of coffee. If you’re on the Florida Turnpike or the Indiana Toll Road, you could stop at the next service plaza and take your choice at an array of retail outlets. But on 95 percent of the Interstate highways, your only option is to wait for an offramp with signs pointing in either direction to gas stations and fast-food places up to several miles away. Some may be closed, and some may be hidden away in shopping plazas.

If your travels have included toll roads, you may wonder why 95 percent of all Interstate miles don’t have service plazas like the turnpikes. The answer is that it’s against federal law. Back in 1960, when the first Interstates were being built, gas station and restaurant owners along the old highways––like U.S. 66 and U.S. 41, which went right through towns and cities—feared bankruptcy because the Interstates bypassed all those towns. So they lobbied Congress to forbid service plazas on the new Interstates. This gave them the chance to stay in business by building new gas stations and fast-food outlets clustered around Interstate offramps. The fledgling truck stop industry allied itself with the small-town merchants, and built their truck stops as near as they could to Interstate offramps.

Today, 61 years later, a lot of things have changed. There’s a huge national shortage of safe overnight truck parking spaces, due to commercial trucking growing faster than land-constrained truck stops. It’s also the result of long-overdue federal enforcement of driver hours-of-service regulations, which drivers can no longer evade thanks to electronic (rather than paper) logbooks. 

Second, there’s a growing need for electric vehicle (E.V.) charging stations, which have been built mostly in urban areas for commuters and service trucks, but hardly exist on major long-distance highways. The most convenient location for range-anxious E.V. motorists would be at Interstate rest areas. But unless the electricity were given away, that’s a commercial service and hence against the law.

A new Reason Foundation study says it’s time for the federal ban to be junked. It discusses both the truck parking shortage and the need for convenient E.V. charging stations as the rationale, and it’s part of the Foundation’s vision of a second-generation Interstate highway system, run mostly as toll roads with first-class commercial service plazas. But before we can even get to the question of toll-financing the rebuilt Interstates, the 61-year-old ban has to go.

The study envisions a coalition of strange bedfellows to lead the way: portions of the trucking industry and the large environmental movement that seeks faster electrification of cars and trucks. Last year, the E.V. crowd managed to get into legislation an exemption from the commercial-services ban specifically for E.V. charging stations. The bill passed the House on a party-line vote but was not taken up by the Senate. The Biden administration’s $2.3 trillion American Jobs Plan includes subsidies for E.V. charging, but is so far silent on whether they could be installed on the Interstates.

Fighting back will be the National Association of Truck Stop Operators (NATSO), which has successfully defeated previous bills to repeal the ban. Those bills have been desired by state transportation agencies that have no revenue source to maintain their rest areas (which provide only restrooms, vending machines, and a modest amount of parking). Historically, most of the trucking organizations have sided with NATSO, but the owners/operators are already on board for repeal.

Commercialization could actually turn out to be a win-win for truck stops, since they would be in a good position to bid for public-private partnerships offered by state departments of transportation to develop and operate new service plazas, some of which might be truck-only. And 2021 is finally the year when Congress will enact some kind of infrastructure bill. Opening the door for real service plazas on the Interstates has a fighting chance of being included.

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Why Can’t You Buy a Starbucks on the Interstate?


dreamstime_xxl_71528573

If you’re like me, you may have had an experience like this. You’re driving after dark on an Interstate highway and you need a good cup of coffee. If you’re on the Florida Turnpike or the Indiana Toll Road, you could stop at the next service plaza and take your choice at an array of retail outlets. But on 95 percent of the Interstate highways, your only option is to wait for an offramp with signs pointing in either direction to gas stations and fast-food places up to several miles away. Some may be closed, and some may be hidden away in shopping plazas.

If your travels have included toll roads, you may wonder why 95 percent of all Interstate miles don’t have service plazas like the turnpikes. The answer is that it’s against federal law. Back in 1960, when the first Interstates were being built, gas station and restaurant owners along the old highways––like U.S. 66 and U.S. 41, which went right through towns and cities—feared bankruptcy because the Interstates bypassed all those towns. So they lobbied Congress to forbid service plazas on the new Interstates. This gave them the chance to stay in business by building new gas stations and fast-food outlets clustered around Interstate offramps. The fledgling truck stop industry allied itself with the small-town merchants, and built their truck stops as near as they could to Interstate offramps.

Today, 61 years later, a lot of things have changed. There’s a huge national shortage of safe overnight truck parking spaces, due to commercial trucking growing faster than land-constrained truck stops. It’s also the result of long-overdue federal enforcement of driver hours-of-service regulations, which drivers can no longer evade thanks to electronic (rather than paper) logbooks. 

Second, there’s a growing need for electric vehicle (E.V.) charging stations, which have been built mostly in urban areas for commuters and service trucks, but hardly exist on major long-distance highways. The most convenient location for range-anxious E.V. motorists would be at Interstate rest areas. But unless the electricity were given away, that’s a commercial service and hence against the law.

A new Reason Foundation study says it’s time for the federal ban to be junked. It discusses both the truck parking shortage and the need for convenient E.V. charging stations as the rationale, and it’s part of the Foundation’s vision of a second-generation Interstate highway system, run mostly as toll roads with first-class commercial service plazas. But before we can even get to the question of toll-financing the rebuilt Interstates, the 61-year-old ban has to go.

The study envisions a coalition of strange bedfellows to lead the way: portions of the trucking industry and the large environmental movement that seeks faster electrification of cars and trucks. Last year, the E.V. crowd managed to get into legislation an exemption from the commercial-services ban specifically for E.V. charging stations. The bill passed the House on a party-line vote but was not taken up by the Senate. The Biden administration’s $2.3 trillion American Jobs Plan includes subsidies for E.V. charging, but is so far silent on whether they could be installed on the Interstates.

Fighting back will be the National Association of Truck Stop Operators (NATSO), which has successfully defeated previous bills to repeal the ban. Those bills have been desired by state transportation agencies that have no revenue source to maintain their rest areas (which provide only restrooms, vending machines, and a modest amount of parking). Historically, most of the trucking organizations have sided with NATSO, but the owners/operators are already on board for repeal.

Commercialization could actually turn out to be a win-win for truck stops, since they would be in a good position to bid for public-private partnerships offered by state departments of transportation to develop and operate new service plazas, some of which might be truck-only. And 2021 is finally the year when Congress will enact some kind of infrastructure bill. Opening the door for real service plazas on the Interstates has a fighting chance of being included.

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Originalism in the Lower Courts: Judge Ho’s dissental in Texas v. Rettig

Today the Fifth Circuit denied rehearing en banc in Texas v. Rettig. In February, the three-judge panel (Barksdale, Haynes, and Willett) issued a substitute opinion in that case. This case presented a challenge to an ACA regulation. The panel turned away Texas’s nondelegation doctrine challenge.

Judge Ho, and four of his colleague, dissented from the denial of rehearing en banc: Judges Jones, Smith, Elrod, and Duncan. Here, I’d like to praise the five judges who dissented. They embraced a central plank of originalism in the lower courts: the refusal to extend non-originalist precedents, unless that extension is justified by the original mening of the Constitution. I have written about this concept in my article, Originalism and Stare Decisis in the Lower Courts.

First, Judge Ho explains that the delegation in this case differs from past delegations:

But fidelity to the Constitution requires much more than this. Critical features of the delegation challenged here make it categorically different from—and unsupportable under—current precedent.

To begin with, this case involves a delegation of lawmaking power, not to another governmental entity, but to private bodies wholly unaccountable to the citizenry. In addition, the delegation was effectuated not by Congress, but at the whim of an agency—and without Congressional blessing of any kind. There is no precedent that permits this kind of “double delegation” from Congress to public bureaucrats to private parties—no case cited by the panel or the parties, and no case that I have independently uncovered.

Second, none of the Supreme Court’s precedents have upheld such a delegation:

Not a single one of the precedents cited by the panel involves this toxic combination of constitutional abnormalities. Not one of them prevents us from enforcing the Constitution and the democratically accountable government for which it stands. 

Third, Judge Ho explains that lower courts have a clear choice when a case requires an extension of non-originalist precedent. Judge Ho favorably cites Judge Bumatay’s powerful dissents (which I wrote about here).

As judges, we have sworn an oath to uphold the Constitution. So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: “[O]ur duty [is] to apply the Constitution—not extend precedent.” NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)….

“As inferior court judges, we are bound by Supreme Court precedent. Yet[] . . . judges also have a ‘duty to interpret the Constitution in light of its text, structure, and original understanding.'” Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quoting NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring)). “While we must faithfully follow [Supreme Court] precedent . . . , ‘[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'” Id. (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S. 477 (2010)). See also, e.g., Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring) (noting that an important purpose of rehearing en banc is “to better align our precedents with the text and original understanding of the Constitution” “where the Supreme Court has not yet ruled”).

I hope in the appropriate case, the other members of the Fifth Circuit–including the members of the three-judge panel–can sign onto Judge Ho’s cogent analysis. For those wondering, Judge Oldham did not participate in the case. In time, if more judges follow suit, this change will trickle up to the Supreme Court.

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Originalism in the Lower Courts: Judge Ho’s dissental in Texas v. Rettig

Today the Fifth Circuit denied rehearing en banc in Texas v. Rettig. In February, the three-judge panel (Barksdale, Haynes, and Willett) issued a substitute opinion in that case. This case presented a challenge to an ACA regulation. The panel turned away Texas’s nondelegation doctrine challenge.

Judge Ho, and four of his colleague, dissented from the denial of rehearing en banc: Judges Jones, Smith, Elrod, and Duncan. Here, I’d like to praise the five judges who dissented. They embraced a central plank of originalism in the lower courts: the refusal to extend non-originalist precedents, unless that extension is justified by the original mening of the Constitution. I have written about this concept in my article, Originalism and Stare Decisis in the Lower Courts.

First, Judge Ho explains that the delegation in this case differs from past delegations:

But fidelity to the Constitution requires much more than this. Critical features of the delegation challenged here make it categorically different from—and unsupportable under—current precedent.

To begin with, this case involves a delegation of lawmaking power, not to another governmental entity, but to private bodies wholly unaccountable to the citizenry. In addition, the delegation was effectuated not by Congress, but at the whim of an agency—and without Congressional blessing of any kind. There is no precedent that permits this kind of “double delegation” from Congress to public bureaucrats to private parties—no case cited by the panel or the parties, and no case that I have independently uncovered.

Second, none of the Supreme Court’s precedents have upheld such a delegation:

Not a single one of the precedents cited by the panel involves this toxic combination of constitutional abnormalities. Not one of them prevents us from enforcing the Constitution and the democratically accountable government for which it stands. 

Third, Judge Ho explains that lower courts have a clear choice when a case requires an extension of non-originalist precedent. Judge Ho favorably cites Judge Bumatay’s powerful dissents (which I wrote about here).

As judges, we have sworn an oath to uphold the Constitution. So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: “[O]ur duty [is] to apply the Constitution—not extend precedent.” NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)….

“As inferior court judges, we are bound by Supreme Court precedent. Yet[] . . . judges also have a ‘duty to interpret the Constitution in light of its text, structure, and original understanding.'” Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quoting NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring)). “While we must faithfully follow [Supreme Court] precedent . . . , ‘[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'” Id. (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S. 477 (2010)). See also, e.g., Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring) (noting that an important purpose of rehearing en banc is “to better align our precedents with the text and original understanding of the Constitution” “where the Supreme Court has not yet ruled”).

I hope in the appropriate case, the other members of the Fifth Circuit–including the members of the three-judge panel–can sign onto Judge Ho’s cogent analysis. For those wondering, Judge Oldham did not participate in the case. In time, if more judges follow suit, this change will trickle up to the Supreme Court.

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The Briefing is Complete in Tandon v. Newsom

Earlier this month, I blogged about Tandon v. Newsom. In this case, a Ninth Circuit upheld California’s regulations that prohibit four people, from different households, from assembling in a backyard to study the Bible. On April 2, the worshippers sought an emergency injunction from the Supreme Court. About two hours later, California announced it would modify the challenged regulations, effective April 15.

Circuit Justice Kagan did not drag her feet, and ordered the government to respond by April 8. That response was filed yesterday. California urges the Court to delay ruling till April 15, at which point there would be no need for emergency relief:

In any event, the State recently announced that the challenged policy will be significantly modified on April 15, one week from today. In light of improvements in the rates of infection, hospitalization, and death, as well the growing number of vaccinated individuals, the State will be substantially relaxing its restrictions on multiple household gatherings. Under the new policy, plaintiffs will be able to hold the types of gatherings referenced in their emergency application. See, e.g., Application ii, 18 (“Bible studies, prayer meetings, and worship services at their homes” with “eight to twelve individuals”). There is accordingly no basis and no need for the Court to grant injunctive relief at this time.

And California cites another case in which the Court held onto Danville Christian Academy as a way of punting:

Indeed, this Court recently denied injunctive relief in similar circumstances. In Danville Christian Academy, Inc. v. Beshear, 141 S. Ct. 527, 528 (2020), the Court declined to enjoin an expiring restriction that required the closing of both secular and religious schools in Kentucky (while leaving open the possibility that a party could seek injunctive relief if the State renewed the policy)….  Because the order was set to expire the week of the Court’s decision “or shortly thereafter,” the Court declined to issue an injunction. Id.; see also Shapiro et al., Supreme Court Practice § 17.13(d)(12), p. 17-45 (11th ed. 2019) (noting cases where the Court has denied injunctive relief in light of a “change in circumstances or an anticipated change in circumstances”). The same result is appropriate here.

The state includes one other possible remedy in a footnote: treat the application as a petition for cert before judgment, then GVR in light of the new policy.

Alternatively, the Court could consider treating plaintiffs’ application as a petition for certiorari before judgment, granting the petition, vacating the district court’s denial of preliminary injunctive relief, and remanding in light of the State’s new policy on gatherings.

The Plaintiffs have now filed their reply brief. They charge the government with Nero-esque behavior:

Whereas a certain Roman emperor would “post his edicts high on the columns so that they would be harder to read and easier to transgress,”1 today’s would-be autocrats need only perpetually update opaque websites and, during fast-moving litigation, constantly shift their official understanding of what those websites say.

Indeed, it isn’t even clear what the law is:

Consider what has occurred since this Application was filed: (1) the State has proclaimed that the Ninth Circuit’s ruling (in its favor) “incorrect[ly]” parsed the gatherings restrictions as applied to political assemblies, meaning that Californians now have no earthly idea what kinds of gatherings are permitted; (2) the State, at least for present purposes, no longer reads its online PDFs to prohibit outdoor religious gatherings at the home, despite its repeatedly taking the opposite position in the lower courts; and

Plus, the state engages in this never-ending game of whac-a-mole:

less than three hours after Applicants asked this Court to immediately enjoin the State from enforcing its three-household limit on their homebased religious gatherings, the State announced on its website that it intended to loosen those restrictions (though, unfortunately for Christians, not in time for Easter, their highest holy day of the year). While Applicants of course welcome any relief they can get, they cannot help but fear that this deep fog of legal uncertainty is merely cover for the State’s disparate treatment of religious practice.

The Plaintiffs also charge that the State is trying to frustrate appellate review:

Worse, the State’s hastily adopted revisions smack of an effort to avoid this Court’s review. So long as this litigation proceeded in the lower courts, where the State is accustomed to winning, the State steadfastly resisted Applicants’ request for religious liberty. But as soon as Applicants filed here, the State professed to have a sudden change of heart, contending now that an injunction is unnecessary because the updated guidance will soon provide Applicants all the relief they seek. But as history demonstrates and as the State concedes, the guidance could again be revised at any time. The State need only point to a slight uptick in cases (a “fourth wave”) or invoke the threat of “new variants” to justify renewed restrictions, even if there is no genuine threat to public health. Other than its callous disregard for the rights of religious believers, the only consistent feature of the State’s year-long response to the pandemic has been its fearmongering. The State’s assurance that “at present, there is no reason to think that they will be unable to continue hosting those gatherings going forward” is very cold comfort.

Finally, the plaintiffs urge the Court not to duck the soon-to-expire regulation:

The State does not dispute that Applicants suffer irreparable harm every day that they are prohibited from holding their religious gatherings. Instead, the State argues that the Court should look the other way because Wong and Busch’s rights will be violated for only a few more days (if the State is to be believed). But the violation of First Amendment rights for even a short time is irreparable harm, and here there is no guarantee that the State will not immediately reinstate its unconstitutional restrictions. To prevent the State from violating Applicants’ constitutional rights one day more, this Court should issue an immediate injunction.

Later, the Plaintiffs cite my blog post, which reviewed the metadata of the Governor’s regulation-by-blog post:

California’s brief closes with a song that this Court has heard before: “injunctive relief” is no longer “[ ]necessary” here, because—mere hours after this Application was filed—the State fortuitously announced plans to relax the challenged restrictions. Opp. 20–23.7 This familiar coda has not improved with repetition.8

7 See Josh Blackman, About Two Hours After Bible Worship Group Seeks Emergency Injunction, California Relaxes Guidance for April 15—After Easter, of Course, The Volokh Conspiracy (Apr. 2, 2021 11:21 PM), https://ift.tt/2QbyV0y (reviewing metadata of new guidance PDF and concluding that the proposed change “wasn’t planned in advance” but rather was drafted “in response to the imminent application”).

I also want to draw attention to an amicus brief filed by the Becket Fund for Religious Liberty. The brief responds to some of the academic criticism of the shadow docket. Indeed, the brief directly addresses arguments raised by Professor Steve Vladeck in his writings, and congressional testimony. (Disclosure: I am co-counsel with Becket in a challenge to New York’s COVID restrictions).

To hear some people tell it, there is something shady about the Court’s emergency docket. Indeed, they’ve even given it the moniker “shadow docket.”2 On this account, the Court’s willingness to rule on emergency applications endangers “consistency” and “transparency,” thus creating a “fog of uncertainty” about what its rulings mean.3

These are ivory tower objections that partake more of the “heaven of legal concepts” than the actual experience of litigation.4 Every court in the country (except perhaps traffic court) provides for emergency proceedings, because courts have to re-solve time-sensitive and important disputes including, among other things, persistent outrages to the Constitution.

For academics focused solely on the Supreme Court, emergency proceedings may be foreign or seem unsettling because they do not conform to the “ideal” procedure governing a typical merits case. But for practitioners who have to seek temporary restraining orders in district court, or an emergency injunction in a court of appeals, the Supreme Court’s emergency procedures are unfamiliar only in their stringency. Indeed, if anything, this Court’s emergency process is more transparent than many other courts’ procedures.

I am not sure how the Court could have handled the never-ending stream of COVID cases, without the shadow docket. Lower courts were free to enter injunctions and stays of injunctions. But SCOTUS can’t supervise those decisions?

Becket explains that California’s actions have demanded the need for urgent shadow docket review:

Some academics have looked at the Court’s interventions on COVID worship restrictions and complained that the Court is doing too much to protect core constitutional and civil rights. But that gets things exactly backward. The blame for an active emergency docket lies instead squarely with the governments that have repeatedly attempted to suppress worship and the lower courts that have blessed those actions as “neutral.” Until they start following this Court’s lead—like the vast majority of governments and lower courts already have—the Court should not hesitate to issue emergency relief.

The Court can rule at any moment. In the past, the Court has issued COVID orders late Friday evening. Or the Court could rule tomorrow. A Saturday decision would allow people of faith to worship on Sunday. A Monday ruling would overlap with what will likely be a decision day. Any ruling before Thursday would have some meaning. Afterwards, the regulations would lapse.

My recommendation: if there are five votes to enjoin, issue the order as soon as possible, and say opinions will be issued in due course. If there are not five votes to enjoin, issue the order as soon as possible, and say opinions will be issued in due course. But don’t wait till Thursday, and then dismiss the appeal as moot. Such gamesmanship is transparent, and will rewards the government’s frustration of appellate review.

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The Briefing is Complete in Tandon v. Newsom

Earlier this month, I blogged about Tandon v. Newsom. In this case, a Ninth Circuit upheld California’s regulations that prohibit four people, from different households, from assembling in a backyard to study the Bible. On April 2, the worshippers sought an emergency injunction from the Supreme Court. About two hours later, California announced it would modify the challenged regulations, effective April 15.

Circuit Justice Kagan did not drag her feet, and ordered the government to respond by April 8. That response was filed yesterday. California urges the Court to delay ruling till April 15, at which point there would be no need for emergency relief:

In any event, the State recently announced that the challenged policy will be significantly modified on April 15, one week from today. In light of improvements in the rates of infection, hospitalization, and death, as well the growing number of vaccinated individuals, the State will be substantially relaxing its restrictions on multiple household gatherings. Under the new policy, plaintiffs will be able to hold the types of gatherings referenced in their emergency application. See, e.g., Application ii, 18 (“Bible studies, prayer meetings, and worship services at their homes” with “eight to twelve individuals”). There is accordingly no basis and no need for the Court to grant injunctive relief at this time.

And California cites another case in which the Court held onto Danville Christian Academy as a way of punting:

Indeed, this Court recently denied injunctive relief in similar circumstances. In Danville Christian Academy, Inc. v. Beshear, 141 S. Ct. 527, 528 (2020), the Court declined to enjoin an expiring restriction that required the closing of both secular and religious schools in Kentucky (while leaving open the possibility that a party could seek injunctive relief if the State renewed the policy)….  Because the order was set to expire the week of the Court’s decision “or shortly thereafter,” the Court declined to issue an injunction. Id.; see also Shapiro et al., Supreme Court Practice § 17.13(d)(12), p. 17-45 (11th ed. 2019) (noting cases where the Court has denied injunctive relief in light of a “change in circumstances or an anticipated change in circumstances”). The same result is appropriate here.

The state includes one other possible remedy in a footnote: treat the application as a petition for cert before judgment, then GVR in light of the new policy.

Alternatively, the Court could consider treating plaintiffs’ application as a petition for certiorari before judgment, granting the petition, vacating the district court’s denial of preliminary injunctive relief, and remanding in light of the State’s new policy on gatherings.

The Plaintiffs have now filed their reply brief. They charge the government with Nero-esque behavior:

Whereas a certain Roman emperor would “post his edicts high on the columns so that they would be harder to read and easier to transgress,”1 today’s would-be autocrats need only perpetually update opaque websites and, during fast-moving litigation, constantly shift their official understanding of what those websites say.

Indeed, it isn’t even clear what the law is:

Consider what has occurred since this Application was filed: (1) the State has proclaimed that the Ninth Circuit’s ruling (in its favor) “incorrect[ly]” parsed the gatherings restrictions as applied to political assemblies, meaning that Californians now have no earthly idea what kinds of gatherings are permitted; (2) the State, at least for present purposes, no longer reads its online PDFs to prohibit outdoor religious gatherings at the home, despite its repeatedly taking the opposite position in the lower courts; and

Plus, the state engages in this never-ending game of whac-a-mole:

less than three hours after Applicants asked this Court to immediately enjoin the State from enforcing its three-household limit on their homebased religious gatherings, the State announced on its website that it intended to loosen those restrictions (though, unfortunately for Christians, not in time for Easter, their highest holy day of the year). While Applicants of course welcome any relief they can get, they cannot help but fear that this deep fog of legal uncertainty is merely cover for the State’s disparate treatment of religious practice.

The Plaintiffs also charge that the State is trying to frustrate appellate review:

Worse, the State’s hastily adopted revisions smack of an effort to avoid this Court’s review. So long as this litigation proceeded in the lower courts, where the State is accustomed to winning, the State steadfastly resisted Applicants’ request for religious liberty. But as soon as Applicants filed here, the State professed to have a sudden change of heart, contending now that an injunction is unnecessary because the updated guidance will soon provide Applicants all the relief they seek. But as history demonstrates and as the State concedes, the guidance could again be revised at any time. The State need only point to a slight uptick in cases (a “fourth wave”) or invoke the threat of “new variants” to justify renewed restrictions, even if there is no genuine threat to public health. Other than its callous disregard for the rights of religious believers, the only consistent feature of the State’s year-long response to the pandemic has been its fearmongering. The State’s assurance that “at present, there is no reason to think that they will be unable to continue hosting those gatherings going forward” is very cold comfort.

Finally, the plaintiffs urge the Court not to duck the soon-to-expire regulation:

The State does not dispute that Applicants suffer irreparable harm every day that they are prohibited from holding their religious gatherings. Instead, the State argues that the Court should look the other way because Wong and Busch’s rights will be violated for only a few more days (if the State is to be believed). But the violation of First Amendment rights for even a short time is irreparable harm, and here there is no guarantee that the State will not immediately reinstate its unconstitutional restrictions. To prevent the State from violating Applicants’ constitutional rights one day more, this Court should issue an immediate injunction.

Later, the Plaintiffs cite my blog post, which reviewed the metadata of the Governor’s regulation-by-blog post:

California’s brief closes with a song that this Court has heard before: “injunctive relief” is no longer “[ ]necessary” here, because—mere hours after this Application was filed—the State fortuitously announced plans to relax the challenged restrictions. Opp. 20–23.7 This familiar coda has not improved with repetition.8

7 See Josh Blackman, About Two Hours After Bible Worship Group Seeks Emergency Injunction, California Relaxes Guidance for April 15—After Easter, of Course, The Volokh Conspiracy (Apr. 2, 2021 11:21 PM), https://ift.tt/2QbyV0y (reviewing metadata of new guidance PDF and concluding that the proposed change “wasn’t planned in advance” but rather was drafted “in response to the imminent application”).

I also want to draw attention to an amicus brief filed by the Becket Fund for Religious Liberty. The brief responds to some of the academic criticism of the shadow docket. Indeed, the brief directly addresses arguments raised by Professor Steve Vladeck in his writings, and congressional testimony. (Disclosure: I am co-counsel with Becket in a challenge to New York’s COVID restrictions).

To hear some people tell it, there is something shady about the Court’s emergency docket. Indeed, they’ve even given it the moniker “shadow docket.”2 On this account, the Court’s willingness to rule on emergency applications endangers “consistency” and “transparency,” thus creating a “fog of uncertainty” about what its rulings mean.3

These are ivory tower objections that partake more of the “heaven of legal concepts” than the actual experience of litigation.4 Every court in the country (except perhaps traffic court) provides for emergency proceedings, because courts have to re-solve time-sensitive and important disputes including, among other things, persistent outrages to the Constitution.

For academics focused solely on the Supreme Court, emergency proceedings may be foreign or seem unsettling because they do not conform to the “ideal” procedure governing a typical merits case. But for practitioners who have to seek temporary restraining orders in district court, or an emergency injunction in a court of appeals, the Supreme Court’s emergency procedures are unfamiliar only in their stringency. Indeed, if anything, this Court’s emergency process is more transparent than many other courts’ procedures.

I am not sure how the Court could have handled the never-ending stream of COVID cases, without the shadow docket. Lower courts were free to enter injunctions and stays of injunctions. But SCOTUS can’t supervise those decisions?

Becket explains that California’s actions have demanded the need for urgent shadow docket review:

Some academics have looked at the Court’s interventions on COVID worship restrictions and complained that the Court is doing too much to protect core constitutional and civil rights. But that gets things exactly backward. The blame for an active emergency docket lies instead squarely with the governments that have repeatedly attempted to suppress worship and the lower courts that have blessed those actions as “neutral.” Until they start following this Court’s lead—like the vast majority of governments and lower courts already have—the Court should not hesitate to issue emergency relief.

The Court can rule at any moment. In the past, the Court has issued COVID orders late Friday evening. Or the Court could rule tomorrow. A Saturday decision would allow people of faith to worship on Sunday. A Monday ruling would overlap with what will likely be a decision day. Any ruling before Thursday would have some meaning. Afterwards, the regulations would lapse.

My recommendation: if there are five votes to enjoin, issue the order as soon as possible, and say opinions will be issued in due course. If there are not five votes to enjoin, issue the order as soon as possible, and say opinions will be issued in due course. But don’t wait till Thursday, and then dismiss the appeal as moot. Such gamesmanship is transparent, and will rewards the government’s frustration of appellate review.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Friends, Tuesday April 20 is the 150th anniversary of President Grant signing the Civil Rights Act of 1871 into law, giving the federal government powerful tools to fight the Ku Klux Klan—and giving civil rights plaintiffs a powerful tool, Section 1983, to hold state and local officials accountable for violating the Constitution. Please join us on Zoom from 12 – 2 pm ET for an event commemorating this momentous occasion and featuring scholars and litigators including Paul Finkelman, Fred Smith, Kelsi Brown Corkran, and Victor Fleitas. Register today!

  • “For the second time,” notes the D.C. Circuit, “we face the question of what to do about a Guantanamo military commission judge who, while presiding, seeks employment with an entity involved in prosecuting the detainee.” But because the government was willing to let any allegedly tainted orders be reconsidered de novo, the D.C. Circuit sees no need to weigh in; the detainee’s petition for a writ of mandamus is denied.
  • Despite the COVID-19 pandemic, the speaker of the New Hampshire House of Representatives refuses to allow members to participate in votes remotely (the previous Speaker died of COVID-19 one week after being selected at an in-person gathering). Seven House members with various medical conditions sue, alleging the policy violates the Americans with Disabilities Act. First Circuit: Quite possibly. The case is remanded for reconsideration of the plaintiffs’ motion for preliminary injunction.
  • Allegation: Suspected drug dealer flees across rooftops from Reading, Penn. police and is eventually cornered in an abandoned building. Unarmed and covered in his own blood, he dangles himself out a window. An officer punches him repeatedly in the head. He falls 10 feet and breaks his leg. Though he’s unconscious, another officer tases him. District court: Qualified immunity. Third Circuit: Not so. Remanded for trial.
  • Do you like puzzles? Then you’ll love the Fifth Circuit‘s 325-page set of en banc opinions on the lawfulness and constitutionality of the Indian Child Welfare Act, the law that regulates the placement and adoption of children born to American Indians. Some of the Act violates equal protection, some violates the anticommandeering doctrine, and some violates the Administrative Procedure Act. But, other parts do not. Want to know which parts do and don’t and why? You can only really figure that out by adding up the various votes and comparing numerous footnotes in the several opinions. However, the court helpfully includes a five-page per curiam cheat sheet to get you started.
  • Sole black member of a jury—in a case involving a Heritage Creek, Ky. police officer allegedly body-slamming a black man in because he was in the wrong place at the wrong time—reveals that the white jurors wrote off the plaintiff as a crack addict and referred to his lawyers as “the Cosby Show.” Sixth Circuit: Courts generally cannot consider evidence of jury deliberations, but the Supreme Court has made an exception for evidence of racial bias. Today, we hold that exception applies to civil as well as criminal trials.
  • South Dakota man spends 10 years in prison for vehicular homicide after he rolls his Corvette, killing the passenger. Whoops! Witnesses later confirm that he was the passenger and the dead woman was the driver. He’s released and sues, alleging that the reckless investigation by the trooper who found him violated his constitutional rights. Eighth Circuit: The trooper found the victim on the passenger side of the car and the plaintiff outside the car near the open driver-side door, and the witnesses didn’t come forward until years later. It’s hard luck, but it doesn’t shock the conscience.
  • Lee County, Iowa officer who is transporting a handcuffed and shackled but not seatbelted prisoner in his cruiser responds to bank robbery in progress. Prisoner: The officer drove through a rutted, unmaintained lot, tossing me around violently and causing injuries to my neck and back. Officer: I was only going 20 to 25 mph, though I did turn abruptly when the robber fired at the cruiser. District court: A jury should sort this out. Eighth Circuit: Reversed. The officer may have been negligent, but negligence isn’t enough to impose liability here.
  • Can a grocery store be held liable under the ADA because its website is not accessible to the visually impaired? Eleventh Circuit: Nope. A website is not itself a place of public accommodation under the ADA, and the website’s limited functionality does not prevent visually impaired customers from visiting the physical store. While the Ninth Circuit reached a contrary decision in a case involving a pizza chain, that case was distinct because customers could order pizza on the website. Dissent: Even if customers couldn’t buy anything on the website, they could use it to refill prescriptions and access coupons. As stores make increasing use of the internet, they need to make their websites accessible to the visually impaired.
  • Two Tallahassee police officers kill armed suspects in separate encounters. Can the city publicly identify the cops? Florida appellate court: No. The suspects threatened the cops’ lives, thus victimizing them, so the cops are entitled to Florida constitutional protections that allow crime victims to remain anonymous.
  • There’s a lot to untangle in this Kansas Supreme Court decision about statutory rape between two underage teens. But the takeaway is we can all rest assured that Clay County, Kan. officials are committed—really, really committed—to prosecuting a 14-year-old girl for having sex with a 14-year-old boy (who was older than her by several months).
  • And in en banc news, the Ninth Circuit has amended but will not reconsider its decision enjoining in all states along the southern border the Trump Administration’s rule requiring asylum seekers to first apply for, and be denied, asylum in a country they had to travel through to get to the southern border.

Elizabeth Brokamp is a licensed, certified, and very experienced counselor who has been providing therapy over the internet to clients from her home in the Virginia suburbs of Washington D.C. throughout the pandemic. One of her clients moved to New York, however, which bars out-of-state counselors from providing teletherapy. Though the state has temporarily waived its ban, it will soon become illegal for Elizabeth to continue. Interestingly, if she had no qualifications whatsoever, New York would allow her to work as an unlicensed “life coach.” But precisely because of her extensive training, her speech is verboten. That’s an irrational and unconstitutional restriction on Elizabeth’s First Amendment rights, so this week she joined with IJ to sue New York. Click here to read more. (Elizabeth is also challenging a similar restriction in D.C. that bars her from taking on new clients.)

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Joe Biden, Who Says He’s ‘Not a Fan of Court Packing,’ Just Created a Presidential Commission to Study Court Packing


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The White House announced today that President Joe Biden will sign an executive order creating a new Presidential Commission on the Supreme Court of the United States. The group will be composed of legal activists and scholars who will “provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform,” according to a statement released by the White House. Among the items up for discussion by the commission are “the length of service and turnover of justices on the Court” and “the membership and size of the Court.”

The commission fulfills one of Biden’s campaign promises. “If elected,” Biden told 60 Minutes, “I’ll put together a national…bipartisan commission of scholars, constitutional scholars. Democrats, Republicans. Liberal, conservative. And I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it’s getting out of whack.”

Despite many pleas from progressive activists—who would love to see Biden enlarge the Court and fill the new seats with Democratic appointees—Biden has so far refused to endorse any sort of court-packing scheme. “I’m not a fan of court packing,” Biden said on the campaign trail. “The last thing we need to do is turn the Supreme Court into just another political football, whoever’s got the most votes gets whatever they want,” he told 60 Minutes.

When President Franklin Roosevelt famously tried to pack the Supreme Court in 1937, his plan was defeated thanks in significant part to opposition from his fellow Democrats. As I recounted in my recent feature story, “Don’t Pack the Courts,” FDR’s “most effective adversaries turned out to be members of Roosevelt’s own party, such as the legendary progressive jurist Louis Brandeis, who deftly maneuvered behind the scenes to ensure the bill’s ultimate defeat. Like so many others at the time, Brandeis was frankly aghast at FDR’s blatant power grab.”

Let’s assume that Biden’s new presidential commission recommends a Roosevelt redux and endorses court packing 2.0. Will a modern-day Brandeis arise to oppose the plan from inside of the liberal coalition?

The late Ruth Bader Ginsburg might have been up for it. It “was a bad idea when President Franklin Roosevelt tried to pack the court,” Ginsburg told NPR in 2019, and it would be a bad idea now. “If anything would make the Court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'”

Justice Stephen Breyer similarly opposed court packing in a recent Harvard Law School speech, in which he urged proponents of such judicial tinkering to “think long and hard before embodying those changes in law.”

Will Biden pay heed to such voices? Will Biden himself play the Brandeis role and oppose rigging the judicial process for his own party’s benefit? It looks like we’re about to find out.

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