Category: reason

On the first Monday in October, the Harlan Institute and The Constitutional Sources Project (ConSource) announce the Seventh Annual Virtual Supreme Court Competition. This year, the tournament focused on Espinoza v. Montana v. Department of Revenue. Twenty-one high school teams advanced to the semifinal rounds. They prepared briefs, and presented live oral arguments via Zoom. These students are very impressive. Here are their entries, with links to their briefs.

In April we hosted the Semifinal Round and the “Elite Eight” Round. And on May 15, we hosted the Championship Round. The finalists were Curtis Herbert & Hayat Muse of Minnesota, who represented the Petitioners, and David Katz & Seldon Salaj of Connecticut, who represented the Respondents.

We were honored to have an august, all-Texas bench: Justice Eva Guzman of the Texas Supreme Court, and Judges Gregg Costa and Don Willett of the U.S. Court of Appeals for the Fifth Circuit. After a competitive and lively argument, Curtis and Hayat were declared the winners. Congratulations to them! These students truly are remarkable. They could compete in any Law School moot court competition. We are so proud of them.

Here is the video of the competition:

And here are photos from the competition.

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Could an environmentalist lawsuit against President Trump’s border wall provide the Supreme Court with an opportunity to revive the nondelegation doctrine? Perhaps.

Under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Secretary of Homeland Security is authorized to waive other provisions of federal law if doing so would facilitate the expeditious construction of border barriers.  Specifically, Section 102(c)(1) provides:

Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this Section.

No process is required for the Secretary to issue such a waiver; any waiver is “effective upon being published in the Federal Register.” Further, the IIRIRA limits judicial review of the Secretary’s use of this authority to constitutional challenges, and provides for no appellate review other than through a petition for certiorari straight from the district court.

In Center for Biological Diversity v. Wolf, several environmentalist groups argue that the relevant provisions of the IIRIRA violate separation of powers and the nondelegation doctrine in particular. According to the petitioners, the IIRIRA provides no intelligible principle to confine the Secretary’s exercise of this waiver authority. Moreover, the petition suggests, the authority to waive “all legal requirements” is the sort of legislative authority that Congress should not be able to delegate. An amicus brief filed by state and local governments argues further that this wavier authority implicates important federalism concerns.

Most would have considered the petition to be quite a long shot. The federal government waived its opportunity to file a brief in opposition to certiorari. Then, on March 17 (just after the petition was first circulated for conference) the Court asked the Solicitor General’s office to file a response brief, suggesting the case has caught at least one justice’s eye. (With an extension, this brief is now due May 21.)

One final note: Although the petitioners do not make the argument, I would think there’s also a question about whether it is constitutional to enact a jurisdictional provision that could have the effect of denying litigants the right to any appeal on the merits. (Although the U.S. Supreme Court has not recognized such a right, my colleague Cassandra Burke Robertson has made the case here that such a right is implicit in contemporary notions of due process.)

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On May 7, the Department filed a motion seeking leave from the district court to dismiss the charges against Michael Flynn. Despite Flynn’s repeated confessions and the district court’s prior rejection of arguments now made in support of Flynn, such as the argument that his lies were not “material” to ongoing investigations, Attorney General William Barr has decided to reverse course.

Rule 48(a) of the Federal Rules of Criminal Procedure provides that the federal government “may, with leave of court, dismiss an indictment, information, or complaint.” So what does it take for a court to grant the government “leave” to dismiss the indictment? A new (short) paper by Thomas Frampton provides some answers, some of which conflict quite a bit with the much political commentary about the case.

Here’s the abstract:

The conventional view of Rule 48(a) dismissals distinguishes between two types of motions to dismiss: (1) those where dismissal would benefit the defendant, and (2) those where dismissal might give the Government a tactical advantage against the defendant, perhaps because prosecutors seek to dismiss the case and then file new charges. In United States v. Flynn, the Department of Justice argues that Rule 48(a)’s “leave of court” requirement applies exclusively to the latter category of motions to dismiss; where the dismissal accrues to the benefit of the defendant, judicial meddling is unwarranted and improper. In support, the Government relies on forty-year-old dicta in the sole U.S. Supreme Court case interpreting Rule 48(a), Rinaldi v. United States. There, the Court stated that the “leave of court” language was added to Rule 48(a) “without explanation,” but “apparently” this verbiage had as its “principal object . . . to protect a defendant against prosecutorial harassment.”

But the Government’s position—and the U.S. Supreme Court language upon which it is based—is simply wrong. In fact, the “principal object” of Rule 48(a)’s “leave of court” requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants. In other words, it was drafted and enacted precisely to deal with the situation that has arisen in United States v. Flynn: its purpose was to empower the Judiciary to limit dismissal in cases where the district court suspects that some impropriety prompted the Executive’s decision to abandon a case.

To be clear, there may be good reason for the district court to grant the Government’s motion to dismiss in United States v. Flynn. But the fiction that Rule 48(a) exists solely, or even chiefly, to protect defendants against prosecutorial mischief should be abandoned. This brief Essay recounts Rule 48’s forgotten history.

(Hat tip: Carissa Hessick)

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I had only dimly recalled the 2000 wreck of the Russian submarine Kursk, but I just came across a song about it that I very much liked, and that I wanted to share with our handful of Russophone readers. Here is something of the backstory, which one needs to know to understand the song (Chicago Tribune [Colin McMahon]):

Dmitry Kolesnikov’s body was the first to be positively identified from the wreck on the bottom of the Barents Sea … [among] the 118 crewmen who died after a pair of explosions devastated the submarine Aug. 12.

In a pocket of Kolesnikov’s uniform, divers also found a letter that the 27-year-old lieutenant captain wrote just before he died. For proud Russians, for Kolesnikov’s wife and family, the letter is a testament to loyalty and sense of duty.

Kolesnikov scribbled words of love to his bride of only four months. And in a more practiced, more disciplined hand, he recorded what he could of the events that led him and 22 other men to scramble to the Kursk’s last compartment and wait for a rescue that never came….

Kolesnikov’s documentation of survivors—according to his notes, the men lived for at least several hours—disproved the recent government versions that all 118 aboard died within minutes.

It also revived some of the anger against the government for its slow and confused response to the accident.

Here’s the song, from the Russian band DDT and its lead singer-songwriter, Yuri Shevchuk; you can read the Russian lyrics here, and an attempt at a somewhat rhyming and metered translation here. The song opens with the line,

Who about death will tell us a couple of honest words?

The music may at first seem like something of a mismatch with the theme , but I found that it worked for me.

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In Friday’s Spell v. Edwards, Judge Brian A. Jackson (M.D. La.), rejected an argument that Louisiana Gov. John Bel Edwards’ shutdown order (which limited indoor church gatherings, among other gatherings, to at most 10 people) violated the Free Exercise Clause. But the court also suggested that an exemption specifically targeted to church worship services—which some other states have indeed implemented—would actually violate the Establishment Clause:

At the core of their argument, Plaintiffs submit that their congregation “is a large assembly of more than 2,000 individuals” whose religious beliefs require them to assemble for church in person. Additionally, Plaintiff Spell avers that he is imbued with a “duty to lay hands on the sick and pray for them so that they may become well,” which, along with holy communion and the love offering, would lose meaning absent a public gathering….

In determining “the framework governing emergency public health measures,” the United States Court of Appeals for the Fifth Circuit has looked to the Supreme Court’s decision in Jacobson v. Massachusetts (1905). See In re Abbott (5th Cir. 2020). Indeed, the Supreme Court has long recognized that “liberty secured by the Constitution” is not absolute in the face of an epidemic, but rather that a community “has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson.

The Supreme Court has also recognized that “[T]he right to practice religion freely does not include liberty to expose the community … to communicable disease or the latter to ill health or death.” Prince v. Massachusetts (1944)…. “‘[U]nder the pressure of great dangers,’ constitutional rights may be reasonably restricted ‘as the safety of the general public may demand.'” Abbott (quoting Jacobson)….

Plaintiffs argue that the orders are discriminatory and disparately applied because they permit other “similarly situated non-religious businesses” such as “big box retailers, groceries and hardware stores” to remain open to crowds larger than 10 people. Indeed, a law “lacks neutrality where it refers to a religious practice without a secular meaning discernable from the language or context.”

At the hearing on the instant Motion, Defendants argued that the transient, in-and-out nature of consumer interaction with businesses, like those identified by the Plaintiff, are markedly different from the extended, more densely packed environments of churches, or from nonessential businesses that have been fully closed, including aquariums, museums, arcades, theaters, bars, gymnasiums, and more….

The Court finds that there is a substantial relationship between the occupancy limitations in the Governor’s orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs’ rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.

Plaintiffs’ Establishment Clause claim is equally unlikely to succeed, as imposing harms on third parties by exempting religious exercise from requirements of the law may impermissibly favor the benefited religion over non-beneficiaries. Estate of Thornton v. Caldor, Inc. (1985). The Supreme Court held in Estate of Thornton that a Connecticut statute violated the Establishment Clause by providing Sabbath observers with an absolute right not to work on their chosen sabbath. A statute (or order) must not have a primary effect of advancing or inhibiting religion. Shielding Plaintiffs’ congregation of 2,000 from the Governor’s orders based solely upon their preference to assemble larger groups for their services may amount to a carveout that is not available to other non-religious businesses, in violation of the Establishment Clause….

When the Establishment Clause bars preferential exemptions from generally applicable laws to religious people or religious institutions—exemptions that aren’t given to political organizations, social organizations, and the like—is an unsettled question, especially when those exemptions can be seen as imposing considerable secular burdens on third parties. Compare Thornton and Texas Monthly, Inc. v. Bullock (1989), which strike down such exemptions, with Corp. of Presiding Bishop v. Amos (1987), which upholds it, and Cutter v. Wilkinson (2005), which doesn’t resolve the question.

Cutter, the Court’s most recent treatment of the question, says that that religion-only exemptions are constitutional if they

1. “alleviate[] exceptional government-created burdens on private religious exercise” and
2. “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”

But Cutter doesn’t explain how to decide what might constitute a possibly forbidden “burden[] … on nonbeneficiaries”: is it limited to legally binding obligations on third parties, as in Thornton, or also diminution of legal protection offered third parties, e.g., from the spread of communicable disease? (Compare Amos, which seems to limit the Thornton principle to situations where a religious exemption imposes a legally binding burden on a third party.) And Cutter also doesn’t explain what is to be done when element 1 is present—the exemption does lift an exceptional government-created burden on religious exercise—but element 2 is not, because the exemption lifts the burden on religion without taking into account the burden that the lifting imposes on third parties.

The court also noted that defendants’ request for injunctive relief may be moot because on Friday the Governor relaxed the lockdown, providing that “churches and other faith-based organizations are permitted to hold indoor services with up to 25% capacity of total occupancy.”

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