Category: reason

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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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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Despite the record amounts of money the federal government has spent over the last year responding to the pandemic—and the record deficits it’s racked up in the process—the Biden administration continues to ask for trillions more.

Today, the White House released its first budget request. It has asked Congress to approve a $1.52 trillion budget, including $769 billion in non-defense discretionary spending (a 16 percent increase over fiscal year 2021) and $753 billion in defense spending (a 1.7 percent increase).

That would represent an overall 8.4 percent increase in federal spending from last year, when excluding the recent $1.9 trillion pandemic relief bill that Biden signed in March, reports Bloomberg. Today’s budget request also comes in addition to the $2.3 trillion American Jobs Plan that Biden unveiled last week.

Taken together, this represents a massive fiscal expansion of the federal government and one that comes at a time of ballooning deficits.

The feds ran a budget deficit of $1.7 trillion in the first six months of fiscal year 2021 (which runs from October 2020 through September 2021), reported the Congressional Budget Office (CBO) yesterday.

That’s a $1 trillion increase from the same period last year and was driven almost entirely by additional pandemic spending on things like unemployment benefits, small business aid, and refundable tax credits, writes the CBO.

The budget deficit for the first six months of fiscal year 2019—which predates our pandemic spending splurge—was $693 billion.

Like his past spending proposals, Biden’s budget request includes huge funding boosts for federal agencies. The Associated Press reports he’s asking for a 41 percent boost in Education Department funding, and a 23 percent increase in spending on the Department of Health and Human Services. The government’s climate change efforts would get a $14 billion bump, while appropriations for the Department of Housing and Urban Development would jump 15 percent.

It’s hardly surprising that a Democratic administration would want to spend more money on health, education, and housing. The sheer size of Biden’s proposed budget, however, is galling.

The Wall Street Journal’s Greg Ip sees in the president’s budget requests a new left-wing “Bidenomics” that has no patience for traditional concerns about budget deficits, inflation, or fears that government spending will crowd out private investment.

“Bidenomics is more a political movement than a school of economic thought,” writes Ip, saying that Biden and the Democratic Party’s left-wing base see massive federal spending as a tool “to reshape the economy and society for years to come.”

“The problem with economic policies subordinated to political imperatives is that they have no limiting principle: if $3 trillion in stimulus is OK, why not $6 trillion? If a $15 minimum wage is harmless, why not $30?” he adds.

Or as Reason‘s Peter Suderman wrote just yesterday: “Biden seems to believe that bigger government is definitionally better government, almost independent of the policy specifics, so he’s pushing for bigger government just about any way he can.”

An $800 billion stimulus bill passed to combat the Great Recession sparked the Tea Party. Today, even the reaction to Biden’s $2 trillion American Jobs Plan is far more muted.  Sizable majorities of voters support individual spending items in it in recent polls.

White House budget requests are political documents, and this will kick off months of negotiations. The topline $1.5 trillion figure could shrink somewhat.

But these are still dark days for anyone worried about the effects of endlessly increasing deficits, or the distortionary effects of creeping federal interventions into every market and corner of American life.

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“We’re proud to show the nation what is possible in terms of safely educating our one million students,” New York City Schools Chancellor Meisha Porter tweeted Wednesday after meeting with Education Secretary Miguel Cardona. Porter may need to refresh her math.

The nation’s largest school district announced Thursday that kindergarten applications for fall 2021 were down a whopping 12 percent over last year, after having dropped 9 percent the year before. Though the city expects families to keep trickling in after the filing deadline, it’s clear that the pandemic enrollment hit—which this school year cut overall K-12 participation down 4 percent, to 960,000—will not be a one-year phenomenon. Early learners are abandoning public schools, and not just in New York.

We already knew that the 2020–21 year was a wipeout for public school kindergarten enrollment nationwide—down 16 percent, according to an NPR survey of 100 districts last October. Hard numbers are devilishly hard to pin down, varying from state to state (as do kindergarten attendance requirements), but the rough estimate is that about one-third of overall K-12 decline this year (which itself has been estimated at between 2 percent and 5 percent) is attributable to kindergarten alone.

Where have all the 5-year-olds gone? Not Catholic schools, which despite being much more likely to be open five days a week saw their biggest single-year drop (6.4 percent) in a half-century, concentrated most heavily at the pre-K and kindergarten levels. Overall private school numbers, however, appear to be slightly higher.

About the only unambiguous growth categories in the entire field of minor education are learning “pods” (ad hoc groups of parents pooling their efforts either full or part time, to fill in the gaps left by school closures), and homeschooling. That latter category is absolutely exploding—up from 3.3 percent before the pandemic, to 5.4 percent in the spring of 2020, to 11.1 percent last fall, according to the Census Bureau’s Household Pulse Survey, which takes care to distinguish between genuine D.I.Y. education and remote-learning hell.

The tantalizing question raised by New York City’s fall application numbers against the backdrop of the homeschooling spike is: Has the pandemic fundamentally altered the public’s appetite for public education? Bruno V. Manno, senior adviser for the Walton Family Foundation’s K-12 Education Program, thinks so.

“The result of the Covid-19 shock dynamic in K-12 is a more pluralistic education system, one that’s being redefined to include more options from more providers for more families and students,” Manno wrote for Education Next last month. “Some significant number of parents and students will return to some version of the ‘old normal.’ But some won’t. Some have exited, permanently. So the long-term effect is a question of magnitude.”

The shift is already having a direct impact on per-student-based school budgets and staffing, even as the Biden administration hurriedly shovels the better half of $200 billion in federal bailout money out the door. Gilbert Public Schools in Arizona laid off 152 employees last month. Hillsborough County, Florida, the country’s eighth largest school district, will soon ax 1,000 more employees after already losing 2,000 during the pandemic. Some state lawmakers are trying to tie the Biden bucks to job protection, but even with the record levels of federal funding, the basic math of K-12 funding is that with declining enrollment comes a declining number of jobs.

How much can we pin enrollment decline on districts and states being slow to fully reopen their schools? It’s too early to say, just as it’s premature to assume that the New York City model will play out in similar numbers elsewhere.

But this much we know: After 13 months of the pandemic, public school K-12 enrollment is down all over the country, private school enrollment is flat or slightly up, and homeschooling has shot through the roof. This spring is the first time millions of parents will have truly been able to make a premeditated, non-panicky decision about the best schooling options for their kids. If such deliberation continues to produce measurable exit from government-run institutions, the basic structure of American education will change in profound ways.

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It has been more than two months since my last post on Court Packing. On January 27, there were reports that President Biden was beginning to staff his Supreme Court commission. At the time, several prominent names were floated, including Jack Bauer, Cristina Rodriguez, Caroline Fredrickson, and Jack Goldsmith. According to Politico, there would be between 9 and 15 members.

Two months later, President Biden has finally released the mission, and membership of the Presidential Commission on the Supreme Court. I’ll get back to the mission later. Let’s start with the members. And we have gone way beyond 15 members. I count 36 members. And I will divide them based on how I perceive their place on the political spectrum. These assignments are fairly crude, and I apologize if I have mislabeled anyone.

First, there twenty-four members who are from my vantage point left of center: Michelle Adams (Cardozo), Kate Andrias (Michigan), Jack Balkin (Yale), Bob Bauer (NYU, Co-Chair), Elise Boddie (Rutgers), Guy-Uriel Charles (Duke), Andrew Manuel Crespo (Harvard), Walter Dellinger (Duke), Justin Driver (Yale), Caroline Fredrickson (Georgetown), Heather Gerken (Yale), Nancy Gertner (Harvard), Bert I. Huang (Columbia), Sherrilyn Ifill (NAACP LDF), Michael Kang (Northwestern), Olatunde Johnson (Columbia), Trevor Morrison (NYU), Richard Pildes (NYU), Cristina Rodriguez (Yale), Kermit Roosevelt (Penn), Bertrall Ross (Berkeley), David Strauss (Chicago), Laurnce Tribe (Harvard), Michael Waldman (NYU).

Second, there are five members who I see as more centrist: Richard H. Fallon (Harvard), Tara Leigh Grove (Alabama), Alison L. LaCroix (Chicago), Margaret H. Lemos (Duke), David F. Levi (Duke).

Third, there are seven members who are right of center–including two of my fellow co-bloggers: Right: William Baude (Chicago), Jack Goldsmith (Harvard), Thomas B. Griffith (D.C. Circuit), Caleb Nelson (UVA), Michael Ramsey (San Diego), Adam White (GMU), Keith Whittington (Princeton).

In short, liberals outnumber non-liberals by about 2-1 ratio. Those numbers are better than I had anticipated. On most law school faculties, liberals outnumber non-liberals by about 50-1. I’ll take these odds!

From January to April, the commission has more than doubled in size. As a general matter, the larger the commission, the more difficult it will be to reach a consensus. I can’t fathom the sheer amount of work it will take to manage this august group of really smart people. If each member is given five minutes for an opening statement, that process would take three hours! And if each member has five minutes to ask questions of a witness, there goes another three hours! Plus time for public comment and Q&A. Any public meeting with all 36 members would have to take a full day, and likely two.

Moreover, the writing process will be painful. Imagine writing a law review article with 35 co-authors. Now, try writing that article with co-authors who likely disagree on fundamental principles. Will there be majority opinions? Concurrences? Dissents? Plus all of the meeting will be in public. Every question and comment will be carefully scrutinized by advocacy groups on both sides of the aisle. No doubt bloggers and tweeters will attack positions they disagree with in real time, before seeing the final product. Get ready for the trolling, friends. And, by the way, President Biden has asked the group to complete its work within 180 days of the first meeting. Most scholars cannot write a book by themselves in that period of time. (Maybe Cass Sunstein and a few others can). Try writing a book with 35 not-so-likeminded colleagues in less time. I do not envy the members of this commission. Oh, and there is no compensation for service.

Now, onto the mission. Indeed, the narrow mission may mitigate the concerns I’ve raised so far. President Biden also issued an Executive Order to establish the commission. Section 3 provides:

Sec. 3.  Functions.  (a)  The Commission shall produce a report for the President that includes the following:

(i)    An account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court;

This portion should not be too difficult. A summary of the debates about the Court. There are plenty of tweets to cite.

Next, a survey of past proposals for reform:

(ii)   The historical background of other periods in the Nation’s history when the Supreme Court’s role and the nominations and advice-and-consent process were subject to critical assessment and prompted proposals for reform; and

Here, we will get a rehash of FDR’s Court Packing plan from 1937. The next portion is the most controversial: a summary of arguments for and against “Supreme Court reform,” whatever that is:

(iii)  An analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.

The EO does not explain what “Supreme Court reform” means. But the press release offers some guidance:

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.

The President expects a solicitation of public comment:

(b)  The Commission shall solicit public comment, including other expert views, to ensure that its work is informed by a broad spectrum of ideas.

Dare I submit something?

And there is a 180-day deadline after the first meeting.

 (c)  The Commission shall submit its report to the President within 180 days of the date of the Commission’s first public meeting.

Keep it mind it may take several months to put a meeting together. Accommodating the schedules of 36 very busy people will not be easy. We are probably looking at a recommendation in late 2021 or early 2022.

Now something is obviously missing from this report: a recommendation. The New York Times explains:

It is not clear that the commission established by Mr. Biden will by itself clarify his position. Under the White House order establishing it, the commission is not set to issue specific recommendations at the end of its study — an outcome that is likely to disappoint activists.

As I understand this Commission, its report will be purely descriptive. There will not be any recommendations of what to do. Thus, dissents are probably unlikely.

What are we left with? Thirty-six very smart people will put together a comprehensive report that will collect dust on a virtual book shelf. It will be like another edition of the Holmes Devise. If I was a progressive activist, I would be fuming. Biden is playing his base.

Finally, the timing here could not be more inconvenient. Earlier this week, Justice Breyer gave a full-throated defense of the Court as a non-political institution. He warned against Court Reform. And, he did not clearly signal he was willing to step down before he was ready to. (Though his clerk hiring may suggest otherwise).  Demand Justice and other progressive groups are publicly calling on Breyer to retire. And how does President Biden respond to this pressure? Appoint a commission with reasonable people that may release a report around Thanksgiving that will not make any recommendations.

For those with a sense of nostalgia, you can see my prior Court-Packing posts here: Rules # 1, 2, 3, 4, 5, 6, 7, 8, 9.

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