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Today the 9th Circuit decided Sierra Club v. Trump. In this case, the environmental group challenged the Trump administration’s transfer of appropriated funds to construct a border wall. The 9th Circuit previously upheld a district court injunction in this case. However, the Supreme Court stayed that ruling by a 5-4 vote. The per curiam order explained:

Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.

At the time, Seth Barrett Tillman and I wrote a lengthy post explaining why the Plaintiffs lacked an equitable cause of action to challenge ultra vires action. This analysis was based on our work on the Foreign Emoluments Clause. In that litigation, the Plaintiffs have also asserted a general equitable cause of action to challenge illegal government conduct. (Judge Wilkinson’s recent dissent eviscerates this position.)

On remand, the Ninth Circuit held that the plaintiffs do in fact have “an equitable ultra vires cause of action to challenge the Federal Defendants’ transfer.” This opinion is flawed on several grounds.

First, the court conflates illegal conduct with the ability to challenge illegal conduct in court. The panel writes:

Equitable actions to enjoin ultra vires official conduct do not depend upon the availability of a statutory cause of action; instead, they seek a “judge-made remedy” for injuries stemming from unauthorized government conduct, and they rest on the historic availability of equitable review….The relief Sierra Club requests has been traditionally available. “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong.

This mistake is all too common. We explained in our prior post:

The constitutional claims in the Wall litigation, as well as in the Emoluments Clauses cases, cannot invoke the equitable jurisdiction of the federal courts. Why? In order to invoke a federal court’s equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. “Equity” cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action.

Second, Armstrong v. Exceptional Child Center, Inc. does not support the Plaintiffs’ claim. We wrote:

For example, in Armstrong v. Exceptional Child Center (2015), the Supreme Court rejected the proposition that “the Supremacy Clause creates a cause of action for its violation” in the federal court’s equitable jurisdiction.

Plaintiffs in the Emoluments Clauses cases repeatedly cite Armstrong, but fail to note that this case cuts against their free-floating claim to an equitable cause of action based on a purported constitutional violation.

Third, the panel misreads the nature of the cause of action in Youngstown. The panel writes:

That Sierra Club has a cause of action to enjoin the unconstitutional actions at issue here is best illustrated by Youngstown. There, Congress passed numerous statutes authorizing the President to take personal and real property under specific conditions. 343 U.S. at 585–86. During the Korean War, however, President Truman signed an executive order seizing most of the nation’s steel mills, even though the conditions of the statutes had not been satisfied as a matter of fact. Id. at 582, 586. It fell to the Supreme Court to determine whether the President had constitutional authority to seize the steel mills—it held he did not and affirmed the district court injunction. Id. at 588–589. The Court never questioned that it had the authority to provide the requested relief.

Youngstown did not involve a free-floating equitable claim. In this seminal separation-of-powers case, the federal government seized control of private steel mills. The action was brought by the mills’ owners. Youngstown’s brief explained its cause of action:

A simple cloud on title has always moved equity to grant relief because no other remedy is complete or adequate. Wickliffe v. Owings, 17 How. 47, 50 (1854); Southern Pacific v. United States, 200 U. S. 341, 352 (1906); Ohio Tax Cases, 232 U. S. 576, 587 (1914); Shaffer v. Carter, 252 U. S. 37, 48 (1920). The seizure of the properties and business of the plaintiffs, with its host of uncertainties and legal and practical problems arising from the ambiguous position in which the owners are left, should appeal to equity at least as strongly as a cloud on title. In these circumstances, any remedy at law would necessarily be inadequate.

The cause of action was based on the government’s regulation of real property–the steel mills. We explained:

The steel mill owners had a concrete, property interest that was impaired by the government’s actions. The plaintiffs did not rely on a generalized allegation of ultra vires action by the Secretary of Commerce; instead, they relied on an analogous cause of action to quiet title–their title to their property. Here too, we are in the heartland of historical equity jurisdiction involving disputed property rights.

Youngstown does not support the Sierra Club’s claim.

The Ninth Circuit’s errors here are plain. The Supreme Court should issue another stay.

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Today, both Texas and Florida announced that they would be closing down their states’ bars in response to a rise in the number of new coronavirus cases.

“It is clear that the rise in cases is largely driven by certain types of activities, including Texans congregating in bars,” said Texas Gov. Greg Abbott (R) in a press release. “The actions in this executive order are essential to our mission to swiftly contain this virus and protect public health.”

Bars in Texas were allowed to reopen May 22, provided they operated at 25 percent capacity. This was raised to 50 percent capacity in early June.

Abbott cited the state’s positivity rate—meaning the percentage of coronavirus tests coming back positive—rising above 10 percent, and increasing numbers of COVID-19 patients in hospitals, as reasons for his reversal. The Texas Tribune reports that the state hit a record 4,736 hospitalizations on Thursday.

Hospitals in Houston and other metros report being at or near capacity. State officials and hospital leaders say Texas has enough intensive care unit (ICU) beds for now, but that new patients will outstrip hospital capacity if trends continue.

In addition to bars, Abbott’s order closes rafting and tubing businesses—which were linked to an outbreak in Hays County—and requires restaurants to reduce their capacity from 75 percent to 50 percent.

It’s a similar story in Florida, where rising case numbers and hospitalizations have seen Gov. Ron DeSantis (R) order that state’s bars closed as well. The governor had previously allowed most bars in the state to open on June 3.

Florida’s positivity rate has oscillated wildly from 5 percent to 18 percent over the past two weeks, but the trend has been unmistakably upwards.

Data collected by Florida International University (FIU) on South Florida hospitals, the Sun Sentinel reports, shows a surge in hospitalizations over the past two weeks, with places like Palm Beach and Miami-Dade County hitting record highs.

The FIU data shows more modest upticks in COVID-19 patients being admitted to ICUs or being placed on ventilators. “We are seeing slight spikes in ICU and ventilator use, and that’s something to watch,” Zoran Bursac, chair of FIU’s Department of Biostatistics, told the Sun Sentinel.

Avik Roy of the Foundation for Research on Equal Opportunity noted on Twitter that Florida’s rising hospitalizations are being driven mostly by younger people, who are less likely to need to be placed in ICUs and on ventilators.

The reason I'm walking you through all of this is because the recent rise in hospitalizations in Florida is driven by younger people. This appears to be true in Texas as well, though I don't think we have data sources in Texas that break out the distribution as well as Florida's.

— Avik Roy (@Avik) June 26, 2020

Former FDA head Scott Gottlieb notes more gravely that mortality rates for younger patients in Florida are unusually high.

When we see data showing in hospital mortality for Covid patients aged 35-44 of almost 5% we should keep in mind — that’s exceptionally high; especially since criteria for admission is generally just an oxygen saturation below 93%. Many of these young people are otherwise healthy pic.twitter.com/BWjtLgNgV5

— Scott Gottlieb, MD (@ScottGottliebMD) June 26, 2020

Both The New York Times and the Los Angeles Times have run stories on the recent spike in new coronavirus cases among younger people, both of which emphasized the youth’s trips to the bar as a reason for this uptick.

The temptation is obviously to blame these state’s case spikes on hasty reopenings. A cross-state comparison complicates that picture somewhat.

Colorado, where bars serving primarily drinks were allowed to open at reduced capacity last week, is seeing a minor uptick in new cases. South Dakota, which never implemented a lockdown order, is seeing its number of new cases go down. Meanwhile, states like Washington are seeing a big spike in new cases despite bars remaining closed in most of the state, and indoor dining being allowed only at reduced capacity. Parts of Pennsylvania, which has also been slow to reopen, are seeing spikes in new cases as well.

Allegheny County reports *61* new cases of COVID-19. You have to go back two months, to the bad days of April, to find a number that high. Just 1 additional hosptialization and 2 new deaths reported today, but those are lagging indicators. Remains to be seen how they may change

— Chris Potter (@CPotterPgh) June 26, 2020

As always, the coronavirus pandemic continues to behave unpredictably, bedeviling efforts to find quick or simple policy responses.

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

California taught Dario Gurrola how to fight fires while he was in custody, paying him $2–$6 per day. Now that he’s paid his debt to society, however, state licensing restrictions bar him from becoming a full-time firefighter. This month, Dario and IJ filed suit to challenge those restrictions. Vice News has the story.

New on the Short Circuit podcast: Clark Neily of the Cato Institute (who is also a founding member of the podcast) rejoins the panel to talk gym closures in Michigan and a high-profile prosecution in D.C.

• High-ranking former Trump Administration official pleads guilty to making false statements. But wait! The feds seek to dismiss the prosecution, a move that requires “leave of court.” D.C. Circuit (over a dissent): Which means the court must dismiss the case (unless the defendant objects).
• Federal law gives the Secretary of Homeland Security the “sole and unreviewable discretion” to subject certain aliens to expedited removal. Last year, the secretary expanded the reach of the removal process to cover all undocumented immigrants who had been in the U.S. for less than two years. Three organizations whose members are covered by this expansion file suit. D.C. Circuit: Sorry, but “sole and unreviewable discretion” means that you lose on the merits. Dissent: Ridiculous! “Sole and unreviewable discretion” means that they lose on jurisdiction!
• In 2015, the DOJ indicted several officials of the global soccer organization FIFA, who were ultimately convicted of, among other things, conspiracy to commit honest services wire fraud. FIFA officials: That’s impermissible extraterritorial application of the law; our conspiracy occurred entirely on foreign soil. Second Circuit: Ah, but you were charged with conspiracy to commit honest services wire fraud, and some of the bribes you received came from accounts at U.S. banks, which is enough of a domestic hook to support the convictions.
• The Third Circuit ably distills the differences between standing and mootness in an opinion that does little good for the plaintiffs, whose case is moot.
• Must statutory challenges to federal redistricting be heard by a three-judge district court? Or is the ordinary one judge fine? Fifth Circuit (en banc): All of us agree the case is moot because the election is over, but we are, nevertheless, in stark disagreement about the answer to that question of statutory interpretation.
• Only twice has the Supreme Court ever struck down a law for violating the nondelegation doctrine, which holds that Congress may not delegate its legislative authority to another branch of government or a private party. “Ever. And none in more than eighty years.” And, says the Fifth Circuit, a vaping industry challenge to Congress’ delegation of authority to the Secretary of Health and Human Services (to determine if vaping products should be regulated like tobacco products) is not likely going to snap the nondelegation losing streak. [Ed.: Though we humbly suggest that at IJ we have a case that totally will.]
• In 2009, the state of Ohio tried and failed to execute a prisoner, giving up after attempting for two hours to maintain an IV line through which to administer lethal-injection drugs. Sixth Circuit: Now on habeas review, we can’t say that trying again would amount to cruel and unusual punishment or double jeopardy.
• Inmate at Ill. state prison sues guards. District court (March 2016): If the guards wish to argue that the inmate failed to exhaust his administrative remedies, they must file a motion to that effect by April 27, 2016. Guards don’t file a motion by April 27. Or by the end of discovery eight months later. Nor do they raise exhaustion in their summary-judgment motion three months after that. Then, two months before trial, they ask to file a new summary-judgment motion, raising exhaustion. Yikes! The basis for their delay? “[U]nknown reasons.” District court: Good enough for gov’t work. Seventh Circuit: Decidedly not good enough for gov’t work. To trial the case must go.
• Page six of this Seventh Circuit opinion features the sort of footnote that gives litigators the willies.
• In 1972, East Chicago, Ind. officials build public housing on former lead smelting and processing site. In 2016, the city orders 1,000 residents to leave; there are wildly unsafe levels of arsenic and lead in the soil. Seventh Circuit: The residents’ suit against the companies that operated on and near the site from 1906 to 1970 must go in federal, rather than state, court.
• Arkansas police stop speeding motorcyclist (confusing him with a different motorcyclist with a very similar bike and clothing who’d evaded police stops), tase him without warning while he’s fidgeting with his bike. Excessive force? Eighth Circuit: Qualified immunity. You can’t tase people suspected of a nonviolent crime without warning, but he was suspected of seriously reckless driving and could have been about to flee.
• Can the government make it a crime to truthfully report actors’ ages on websites like IMDB.com? The answer—per the Ninth Circuit—will absolutely not surprise you.
• Investigating an abandoned trailer, Beckham County, Okla. deputy sheriff determines that former police chief stole it from an Anderson, S.C. church, arrests him. The former chief is subjected to a body-cavity strip search at booking, and the sheriff puts out a press release full of incriminating allegations from the warrant affidavit. Yikes! Turns out the church had two trailers and mixed up the VINs—the former chief’s trailer was not stolen but validly purchased. Double yikes! The former chief had campaigned for the sheriff’s opponent in the election—might this all be retaliation? Tenth Circuit: The arrest was proper, the press release fine. But “[b]ody-cavity strip searches are not so trivial” as to be universally conducted on all detainees.
• Schizophrenic pretrial detainee at Rio Grande County, Colo. jail exhibits a variety of distressing behaviors culminating with him removing his eyeball from its socket. Staff restrain him as he attempts to remove the other eyeball. Officers: We checked on him every 15 minutes, as medical professionals advised. Tenth Circuit: That’s disputed, and since you failed to challenge whether the law was clearly established, the detainee’s suit can proceed.
• Lakeland, Fla. officials move 26-foot-tall marble cenotaph honoring Confederate dead from one city park (where it’s been since 1910) to another. Eleventh Circuit: Plaintiffs who oppose the move (including one who wishes to “‘vindicate the cause’ for which the Confederate Veteran fought”) lack standing to press First Amendment and due process claims.
• The Eleventh Circuit goes en banc to unanimously reverse precedent holding that people lack standing to bring Fourth Amendment claims if they have abandoned their privacy interests in the objects being searched. Judge Rosenbaum, concurring: I wrote that earlier precedent, and it’s totally wrong.
• Woman sees dark-clothed men rush toward her back door in East Dublin, Ga. late one night, and she wakes her husband. Having been robbed the day before, the couple feared they were being robbed again; the husband grabs a shotgun and goes to investigate. He’s shot 23 times. Turns out it’s a SWAT team executing a drug raid sparked by the man who’d robbed them the day before—he told police he thought the husband was a meth dealer. The husband, a grandfather and the owner of a construction company, dies. Police find no drugs on the property. Eleventh Circuit: No qualified immunity for a cop who lied and omitted key info in his warrant affidavit. And the widow can pursue punitive damages against him.
• Pretrial detainee at Clayton County, Ga. jail shares candy with his cellmate, another pretrial detainee who was also arrested for a nonviolent crime. (Neither has a history of violent felonies.) The cellmate demands all the candy and beats the first detainee to death when he declines to turn it over. Allegation: The jail’s intake procedures don’t adequately screen for violent misdemeanors, leading to nonviolent detainees sharing a cell with violent detainees. Eleventh Circuit: Plaintiffs haven’t shown a constitutional violation.

Allowing ex-offenders to earn an honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work. A new IJ report details the numerous methods state licensing boards use to deny credentials to otherwise qualified applicants. In multiple states, an applicant can be denied a license without any consideration of their rehabilitation or on the basis of any felony, even if the crime is completely irrelevant to the license sought. Licensing boards can even disqualify applicants over their perceived “good moral character” or “moral turpitude,” vague terms that let boards act capriciously. For more information and to see how your state treats ex-offenders, read Barred from Working.

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