SCOTUS Decides South Bay v. Newsom II, Enjoins Complete Prohibition on Indoor Worship Services

Around 10:45 PM ET on Friday evening, the Supreme Court decided South Bay United Pentecostal Church v. Newsom II. (I blogged about the briefing earlier this week). Here is the bottom line: six Justices enjoined California’s complete prohibition on indoor worship in so-called Tier 1 zones. Beyond that, the conservatives splintered sharply.

Unsigned Per Curiam Opinion

Let’s start with the unsigned per curiam opinion. First, the Court blocked Governor Newsom from prohibiting indoor worship by the Applicants:

 Respondents are enjoined from enforcing the Blueprint’s Tier 1 prohibition on indoor worship services against the applicants pending disposition of the petition for a writ of certiorari.

In theory at least, Newsom could continue to enforce the regulations as to other houses of worship. The Supreme Court’s injunction is not universal. But as a practical matter, Newsom would be sued by other churches, and he could not rely on qualified immunity. Therefore, for practical purposes, he will have to stop enforcing the ban on indoor worship statewide. Plus, Newsom is facing a recall, and has thrown #science to the wind to save his political skin. (More on the politics later).

Second, the Court allowed the church to limit attendance to 25%. The Court reached a similar ruling in Diocese of Brooklyn.

The application is denied with respect to the per-centage capacity limitations, and respondents are not en-joined from imposing a 25% capacity limitation on indoor worship services in Tier 1.

Currently, this issue is being litigated in New York. In short, Governor Cuomo has agreed that houses of worship should be subject to the same occupancy limits as other “essential’ businesses. I am not sure what percentage other businesses in California can open up with.

Third, the Court allowed the state to ban “singing and chanting.”

The application is denied with respect to the prohibition on singing and chanting during indoor services.

Fourth, the Court allowed the Church to present evidence that the percentage caps, and ban on signing and chanting are not generally applicable.

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

Justice Gorsuch’s concurrence suggests these rule are not generally applicable. Given the district court judges that ruled on these injunctions before, I do not think these arguments will receive a warm welcome. Punt.

Fifth, the Court has teed up the COVID-19 endgame:

Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

As soon as the Court denies certiorari this injunction lifts. The Court can then hold onto the petition until the pandemic concludes, and let this case dissolve. For now, the parishioners of South Bay no longer have to weather the elements to pray. The courts should have entered this relief before Christmas. Once again, contrary to what Justice Breyer suggested, these cases take weeks and months, not “hours.”

The Court issued a similar order in the companion case, Harvest Rock.

Now, let’s break down the separate writings.

Justices Thomas, Gorsuch, and Alito

Justices Thomas and Gorsuch would have granted “the application in full.” In other words, they would have enjoined the percentage caps, and the ban on singing and chanting indoors.

Justice Alito took a more measured approach:

JUSTICE ALITO would grant the application with respect to all of the capacity restrictions on indoor worship services and the prohibition against indoor singing and chanting, and would stay for 30 days an injunction against the percentage attendance caps and the prohibition against indoor singing and chanting. JUSTICE ALITO would have the stay lift in 30 days unless the State demonstrates clearly that nothing short of those measures will reduce the community spread of COVID–19 at indoor religious gatherings to the same extent as do the restrictions the State enforces with respect to other activities it classifies as essential.

Here, Justice Alito would immediately enjoin complete prohibition on indoor worship. He would give the state 30 days to prove that the percentage caps and ban on singing are absolutely essential to prevent community spread. If the state cannot meed that burden, then in 30 days, the stay will lift. Critically, the state has the burden. The majority per curiam opinion suggests the burden belongs to the churches.

Justice Gorsuch wrote a six-page statement, joined by Justices Thomas and Alito. But Chief Justice Roberts, and Justices Kavanaugh and Barrett did not join this statement.

First, Justice Gorsuch said this case was not “difficult.”

Often, courts addressing First Amendment free exercise challenges face difficult questions about whether a law re-flects ” ‘subtle departures from neutrality,’ ” ” ‘religious ger-rymander[ing],’ ” or “impermissible targeting” of religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534–535 (1993). But not here. . . . 

When a State so obviously targets religion for differential treatment, our job becomes that much clearer. 

In the past, I have criticized Gorsuch for saying that tough cases are “simple.” He really should avoid this over-confidence. I agree South Bay should prevail, but this case does present really weighty issues on both sides.

Second, he favorably cites Becket’s amicus brief, which explained that California’s indoor ban was unprecedented:

Apparently, Califor-nia is the only State in the country that has gone so far as to ban all indoor religious services. See Brief for Becket Fund for Religious Liberty as Amicus Curiae, 5–6. 

Third, Gorsuch finds that California’s directives must be reviewed with strict scrutiny. Here, absolute deference is not warranted.

It has never been enough for the State to insist on deference or demand that individual rights give way to collective interests. Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard.

Fourth, Gorsuch explains that California cannot “thread the needle.” It’s directives are not narrowly tailored:

Nor has California sought to explain why it cannot address its legitimate concerns with rules short of a total ban. Each of the State’s shortcomings are telltale signs this Court has long used to identify laws that fail strict scrutiny.

For example, why can’t California limit the number of people who can gather at once?

Nor does California explain why the less restrictive option of limiting the number of people who may gather at one time is insufficient for houses of worship, even though it has found that answer adequate for so many stores and businesses

Fifth, Gorsuch addresses what I think is California’s most arrogant defense: people can pray outside.

Next, the State tells us that worshippers are sure to seek close physical interactions. It touts its mild climate, too, suggesting that worshippers might enjoy more space out-doors. Yet, California is not as concerned with the close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods. The State does not force them or retailers to do all their business in parking lots and parks. And California allows people to sit in relatively close proximity inside buses too. Nor, again, does California explain why the nar-rower options it thinks adequate in many secular settings—such as social distancing requirements, masks, cleaning, plexiglass barriers, and the like—cannot suffice here. Es-pecially when those measures are in routine use in religious services across the country today.

On Christmas, the temperature in the Bay Area was in the high-40s with rain and 25 mph wind gusts. No, that weather was not “mild.”

Sixth, Justice Gorsuch explains this disparate treatment runs afoul of Roman Catholic Diocese:

. . . California singles out religion for worse treatment than many secular activities. At the same time, the State fails to explain why narrower options it finds sufficient in secular contexts do not satisfy its legitimate interests. Recently, this Court made it abundantly clear that edicts like California’s fail strict scrutiny and violate the Constitution. See Roman Catholic Diocese of Brooklyn v. Cuomo, ante, at ___ (per cu-riam).

Seventh, Justice Gorsuch faults the lower courts who flouted Diocese of Brooklyn:

Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.

He’s right.

Eighth, Justice Gorsuch writes that the ban on singing may not be generally applicable:

It seems California’s powerful enter-tainment industry has won an exemption. FN2 So, once more, we appear to have a State playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful.

FN2 . . . . But the record suggests that music, film, and television studios are permitted to sing indoors.  . . . As the Court recognizes, though, nothing in today’s order precludes future relief on this claim either.

Moreover, Gorsuch adds, the state could allow a single leader to sing:

Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in.

Finally, Justice Gorsuch addressed the game of whack-a-mole:

No doubt, California will argue on remand, as it has be-fore, that its prohibitions are merely temporary because vaccinations are underway. But the State’s “temporary” ban on indoor worship has been in place since August 2020, and applied routinely since March. California no longer asks its movie studios, malls, and manicurists to wait. And one could be forgiven for doubting its asserted timeline. Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new bench-marks that always seem to put restoration of liberty just around the corner. 

Whack-A-Mole.

His closing is strong:

But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.

Justices Barrett and Kavanaugh

Justice Barrett wrote her first separate writing on the Court: a concurrence joined by Justice Kavanaugh.

First, she seems to agree with Justice Gorsuch’s analysis, except for his discussion of signing and chanting.

I agree with JUSTICE GORSUCH‘s statement, save its contention that the Court should enjoin California’s prohibition on singing and chanting during indoor services. The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record.

But she left open the possibility that the Church can make this showing in the future.

As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue. As the order notes, however, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.

Do we take it that Justices Barrett and Kavanaugh agree with the other points Gorsuch made? This opinion left me wanting much, much more clarity. And I wonder what Justice Kavanaugh would have done if Barrett had joined the Gorsuch statement? Did Kavanaugh peel off after reading Barrett’s concurrence?

Chief Justice Roberts

Chief Justice Roberts wrote a two-paragraph concurring opinion, in which he repeats his position from South Bay I.

As I explained the last time the Court considered this evolving case, federal courts owe significant deference to politically accountable officials with the “background, compe-tence, and expertise to assess public health.” South Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (opinion concurring in denial of application for injunctive relief ) (slip op., at 2).

Roberts saw no basis to enjoin the ban on singing:

The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework.

But he rejects the absolute prohibition on indoor worship:

At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.

And what are those “interests at stake”? Of course, Roberts will not tell us. He won’t even mention the Free Exercise Clause. So, of course, lower courts will now adopt a new cockamamie test from the Chief: does the government’s policy “reflect . . . expertise or discretion” or does it reflect “insufficient appreciation or consideration of the interests at stake”? Forget strict scrutiny. We are left with incoherent scrutiny. South Bay II is the new South Bay I. Roberts must know what he is doing with these meaningless tests. He simply can’t vote with a clean conscience to close all indoor houses of worship. And he is content to have lower courts blindly cite him, without any clue what he means. Well done, Mr. Chief Justice.

Roberts repeat his usual pablum about deference and life tenured judge. You know the rest.

I adhere to the view that the “Constitution principally en-trusts the safety and the health of the people to the politi-cally accountable officials of the States.” Ibid. (internal quotation marks and alteration omitted). But the Consti-tution also entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life ten-ure, see post, at 6 (KAGAN, J., dissenting), but because they are. Deference, though broad, has its limits.

Summary of the Majority

Here is a brief summary of the majority votes. Six Justices immediately enjoined the ban on indoor worship. We know all six Justices agreed, because they told us so: Roberts, Thomas, Alito, Gorsuch, Kavanaugh, Barrett. Two justices (Thomas and Gorsuch) would have also immediately enjoined the percentage caps and ban on singing. One justice (Alito) would have put the burden on the state to defend the percentage caps and ban on singing. Three justices (Roberts, Kavanaugh, and Barrett) would have put the burden on the church to introduce evidence showing that the percentage caps and ban on singing art not generally applicable. Huh? Let’s repeat the fourth element from the per curiam opinion:

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

This statement is not part of the Court’s order. It is merely an observation of what could happen.

Justices Kagan, Breyer, and Sotomayor

Justice Kagan wrote a five-page dissent, which was joined by Justices Breyer and Sotomayor. She begins with the same refrain from Diocese: the Justices are not scientists, and religious worship is treated more favorably than secular activities

Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court dis-places the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services. The majority does so even though the State’s policies treat worship just as favorably as secular activities (including political assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.

Alas, Justice Kagan accepts the “mild climate” ruse.

Given California’s mild climate, that restriction—the one the Court today lifts for houses of worship alone—does not amount to a ban on the activity. Worship services, along with other gatherings, have taken place outdoors throughout this winter. 

Justice Kagan includes no citation here. I doubt one exists. For the old and infirm, worshipping in a freezing, gusty rain is not an option. I am disappointed Justice Kagan indulged this line of argument. She should have ignored the weather issue altogether, like the lower court judges did. But she couldn’t. She felt compelled to address the evidence before her. And she struck out.

Next, in a footnote, Justice Kagan explains why this case is different from Diocese of Brooklyn. My general rule of thumb is that substantive footnotes like these were added later in the drafting process. Perhaps Justice Breyer suggested it?

For much this reason, the Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo, ante, p. ___ (per curiam), does not require today’s injunction. There, the Court found that New York had “single[d] out houses of worship for especially harsh treatment.” Ante, at 3. But here, according to the epidemiological evidence in the record, California has treated houses of worship identically to other facilities with the same risk. It is the Court, not the State, that “single[s] out” religious activity— separating it from other equally risky public gatherings. What is more, Roman Catholic Diocese held, at a time when New York was lifting re-strictions to reflect declining case rates, that the policy at issue was “far more severe than has been shown to be required to prevent the spread of the virus.” Ante, at 4. No court—or, at any rate, no court with any sense of modesty—can make that claim here. California’s hospitals are near maximum capacity, and over 3,500 state residents perished from the vi-rus just last week.

Not quite. California has been lifting restrictions for the past few weeks–largely because Governor Newsom has recognized that his policies are no longer politically palatable, and he faces a recall election. Indeed, I thought this case would be mooted out because of the lifting of the order.

EK closes with a sharp note:

I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life ten-ure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict. I respectfully dissent.

In other news, Governor Cuomo of New York has articulated what is actually motivating COVID policies.

“When I say ‘experts’ in air quotes, it sounds like I’m saying I don’t really trust the experts,” Mr. Cuomo said at a news conference on Friday, referring to scientific expertise at all levels of government during the pandemic. “Because I don’t. Because I don’t.”

Politics. All politicians are motivated by politics. And they find experts who submit declarations that support their views. No other state in the union has decided to shut down all indoor worship. None. I look forward to the day when these state health officials will sit for depositions, and explain the real reason why houses of worship were not deemed “essential.”

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Prof. Eric Goldman & Me on Whether Governments Can Limit Platforms’ Content Blocking Decisions

It’s free but you need to register here; here’s the summary:

As private entities, social media platforms are not bound by the First Amendment, and are free to permit—or block—content and users as they see fit; and 47 U.S.C. § 230 preempts any state statutes that would impose greater limits on such companies. That, at least, is the traditional view.

But some state legislatures are considering statutes that would ban viewpoint-based blocking by platforms; and some scholars are arguing that those laws might prevail, notwithstanding § 230. What are these theories? And what are their strengths and weaknesses?

It’s always a pleasure to talk to Eric—who teaches technology law at Santa Clara—about such matters, and I hope you folks find it interesting to listen (and to ask questions during the Q & A).

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Can the Secretary of Education Really Wave a Magic Wand and Erase All Our Student Loans?

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Congressional Democrats and President Joe Biden’s administration are at odds over how to cancel student loan debt. Sen. Elizabeth Warren (D–Mass.) and Senate Majority Leader Chuck Schumer (D–N.Y.) insist that Biden can and should cancel up to $50,000 of loan debt per borrower using an executive order. Biden’s team reportedly prefers that Congress pass a bill giving the Department of Education authority to forgive up to $10,000 of outstanding student loan debt per person. 

While neither of those proposals will address the cost disease plaguing higher education in the United States, the Warren proposal relies on a rather Trumpian approach to appropriations. 

The Warren proposal, which you can study here, notes that section 432(a) of the Higher Education Act of 1965 authorizes the Secretary of Education to “enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption,” as relates to loans issued under the Federal Family Education Loan (FFEL) Program; now, the Federal Direct Loan Program. Warren and other student loan forgiveness advocates interpret that clause to mean that the Education Department may adjust individual loan values down to zero if the loan is owned by the Education Department (more than 90 percent of student loans are). They say that this interpretation was shared by the Trump administration, which cited section 432(a) in justifying a temporary waiver of interest on student loans due to COVID-19’s economic impact. 

Warren’s proposal to permanently forgive the debt of tens of millions of student loan borrowers (and which would cost substantially more than the revenue lost by temporarily suspending interest payments), uses an income-based sliding scale to determine the forgiveness amount: $50,000 in debt forgiveness for household incomes less than $100,000, scaling down to zero for household incomes over $250,000. The scale is tied exclusively to the prior year’s tax filing and the corresponding amount would be forgiven automatically. Her proposal also calls for the IRS to not treat the forgiven loan amount as taxable income (which it currently does for loans forgiven after 20 or 25 years of income-based repayment). 

A letter to Warren from members of Harvard University’s Project on Predatory Student Lending suggests that this route is perfectly legal, and that “the only statutory limitation” on the Education Department’s authority to “compromise” a loan “is the requirement that the Secretary ‘may not enter into any settlement of any claim under [Title IV] that exceeds $1,000,000’ without requesting ‘a review of the proposed settlement of such claim by the Attorney General.'” 

While rich with detail, the letter from the Project on Predatory Student Lending focuses largely on a close literal reading of the Higher Education Act. There is no suggestion by the letter authors that the Higher Education Act, the Federal Claims Collection Act, or the Federal Credit Reform Act was intended or amended explicitly to give the Secretary of Education the power to discharge $650 billion worth of student loans (the amount Warren expects the U.S. government to forgive if her plan is implemented). Yet the letter nevertheless claims that “Congress has granted the Secretary a more specific and unrestricted authority to create and to cancel or modify debt owed under federal student loan programs in the Higher Education Act (HEA) itself” and that “that provision empowers the Secretary to execute the broad debt cancellation plan you have proposed.” It is right there in the bill that Lyndon B. Johnson signed in 1965, the power for a political appointee to spend $650 billion without so much as a “by your leave” from Congress. 

This is perhaps why Schumer is under the impression that Biden can forgive all those student loans “with the flick of a pen.” 

In a memorandum sent to former Education Secretary Betsy DeVos in January, Reed D. Rubinstein, then deputy general counsel for the Department of Education, argued that the secretary does not, in fact, already have these broad powers. 

Rubinstein argued that the Constitution assigns the power of the purse to Congress, that federal law requires appropriated funding “be applied only to the objects for which the appropriations were made except as otherwise provided by law,” and finally, that Congress has not voted to allow Education Department funding to be used in the way Warren and Schumer want. This is the same argument House Democrats used in 2019 when they sued Trump for using a national emergency declaration to divert military spending toward a border wall after the House refused to appropriate the $5.7 billion he requested. 

“Congress does not impliedly delegate a policy decision of massive economic and political magnitude—as blanket or mass cancellation, compromise, discharge, or forgiveness of student loan principal balances, or the material modification of the repayment terms or amounts thereof, surely would be—to an administrative agency,” Rubinstein wrote. He calls Warren’s reading of section 432 “hyperliteral and contrary to common sense.” 

And yet, Congress doesn’t always intervene when executive agencies take interpretative license in order to make decisions of “massive economic and political magnitude.” Aside from a handful of critical quotes from a few Senate Republicans, Congress did not intervene in September 2020 when the Centers for Disease Control and Prevention (CDC) imposed a nationwide eviction moratorium in response to COVID-19 on the grounds that Congress had vested the agency’s director with “the power to take any measures deemed ‘reasonably necessary’ to prevent the interstate spread of communicable disease, including ‘inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.'” In fact, Congress later wrote the CDC’s plan into law. 

Rubinstein adds that in the event a legal case could be made for allowing the mass forgiveness of student loans without Congress granting new power or approving new spending, “doing so might be appropriately and necessarily considered a legislative rule under the Administrative Procedure Act,” subject to public notice and comment. Somewhat ironically, the Trump administration struggled with APA compliance for his entire term.

Biden did not initially appear to be very fond of this game. Politico notes that Biden in December called Warren’s plan “pretty questionable,” and said, “I’d be unlikely to do that.” But according to a tweet from White House Press Secretary Jen Psaki, “Our team is reviewing whether there are any steps he can take through executive action and he would welcome the opportunity to sign a bill sent to him by Congress.” The Hill reports that the White House Office of Legal Counsel is conducting that review. 

Regardless of how Democrats under Biden choose to address the real and perceived deficiencies of our current system for funding higher education, taxpayers and borrowers deserve a break from rule by executive order. Many of these ideas are bad no matter what process Democrats use to implement them, but debating them in Congress might make them less so. 

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Putin Foe Navalny Sentenced to Nearly Three Years in Prison

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From within a glass enclosure, Russian political dissident Alexei Navalny smiled and made heart gestures to his wife not long before a judge on Tuesday sentenced him to two years and eight months in a penal colony.

Navalny was arrested in a Moscow airport on January 17 after returning from Germany, where he had been recovering since the summer from a poison attack linked to the Russian Federal Security Service (FSB). Because of his time abroad, officials say that Navalny was in violation of his probation for a 2014 fraud conviction, which supporters claim was orchestrated to prevent him from running for office. 

In court, Navalny argued that because he had arrived in Germany while comatose and was only there for the duration of his rehabilitation, he did not violate the conditions of his parole. 

I contacted my lawyer to send you a notice,” he said. “You had the address, my contact details. What else could I have done to inform you?”

The judge disagreed and ordered him to serve two years and eight months in prison, deducting time he had already served under house arrest from his original sentence of three and a half years. 

Today, Navalny was again hauled before a judge, this time for allegedly libeling a World War II veteran who took part in a video supporting a reform that would allow President Vladimir Putin to serve two more terms in office. Navalny had previously described the participants in the video as traitors. 

Navalny began his political career in 2008 investigating government corruption. His videos, which have gotten millions of views, often target Russia’s wealthiest and most powerful figures. Navalny’s most recent video accused Putin of building a lavish Black Sea palace for himself with taxpayer funds. Putin denied owning the property. Billionaire real estate developer and Putin’s childhood friend Arkady Rotenberg has claimed ownership of the massive building.

Protests erupted throughout Russia in the weeks following Navalny’s arrest, with over 11,000 people being detained nationwide. A video from a protest in St. Petersburg last Sunday shows numerous instances of police beating demonstrators before arresting them. Some protesters reported being held in cramped conditions for days without access to food, water, or bathroom facilities. Navalny supporters have temporarily called off further protests.

The United States has been adamant in its denunciation of the Kremlin’s actions. Speaking on Thursday during his first visit to the State Department, President Joe Biden called for the immediate release of Navalny and his supporters. 

“The politically motivated jailing of Alexei Navalny and the Russian efforts to suppress freedom of expression and peaceful assembly are a matter of deep concern to us and the international community,” Biden said.

Today, Russia announced it would expel diplomats from Germany, Poland, and Sweden for allegedly taking part in illegal protests. In a released statement, the Russian Foreign Ministry said it would revoke the credentials of three foreign officials, ordering them to leave the country as soon as possible. The move drew castigation from leaders of all three countries, who labeled the measure as unjustified.

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The Risks to the ACA of a Standing Decision in California v. Texas Are Overstated

The Supreme Court’s announcement that it would issue opinions this past Wednesday set off a flurry of speculation that the justices would be issuing their decision in California v. Texasthe latest Affordable Care Act challenge to reach One First Street (about which I’ve blogged extensively). One theory was that the Court might have been rushing to get the decision out so as to relieve the Biden Administration of the potentially difficult decision whether to withdraw the Trump Administration’s anti-ACA brief and substitute it with a brief defending the ACA. Alas, all we got was opinions on Foreign Sovereign Immunity for the expropriation of property during World War II and disability benefits under the Railroad Retirement Act.

On Tuesday, my co-blogger Josh Blackman suggested that there was a risk in withdrawing the Trump Administration’s brief insofar as it might encourage the Court to rule on standing. In an uncharacteristic move, the Trump Administration largely conceded that the plaintiffs had standing to challenge the mandate-sans-penalty, and the Biden Administration would be likely to take the other side, both because it would like to defend the ACA and because the Justice Department is usually more aggressive in seeking to deny standing to plaintiffs challenging federal laws. In addition, the plaintiffs’ arguments in favor of Article III standing are quite weak on the merits.

In his post, Blackman wrote:

[The Biden Administration] would prefer to win on the merits, or win on severability. But a win on standing would be short-lived. In the future, the federal government will take some enforcement action in Texas against a person based on the ACA. And that defendant, relying on circuit precedent, could argue that the entire ACA is unconstitutional. In this case, there would be no doubts about standing. The Biden Administration does not want the validity of the ACA floating in doubt for the next three years. In 2010, DOJ argued that the Tax Anti-Injunction Act did not bar the original ACA challenge. The Obama Administration wanted order to settle the validity of the law before the election.

I disagree with this analysis.

For starters, should the Supreme Court conclude that the plaintiffs lack standing in California v. Texas, there would be no “circuit precedent” to rely upon to assert standing in a subsequent case in the Fifth Circuit. If the plaintiffs lacked standing, this means there was no jurisdiction to hear the case, and the Fifth Circuit’s opinion below would be vacated. It would have no precedential value whatsoever. Moreover, any decision concluding the plaintiffs lack standing would likely be based upon the conclusion that a law that imposes no actual or threatened consequence cannot impose an Article III injury, which would certainly influence the analysis of a circuit panel in any subsequent case.

What about the other scenario Blackman suggests, in which a defendant to a government enforcement action under the ACA seeks to revive the plaintiffs’ claims? I do not see that as a serious risk either. While there was some interesting discussion at oral argument about whether a defendant charged with violating one provision of a law could ever seek to escape prosecution by alleging that a another separate-yet-inseverable provision of the law is unconstitutional, there is no precedent for such a move, and it is easy to see why.

Congress routinely enacts large sprawling pieces of legislation containing many separate provisions, some small fraction of which may be unconstitutional (see, e.g., Sarbanes-Oxley, Dodd-Frank, or the Cable Television Consumer Protection and Competition Act). Yet courts have never concluded that those subject to the enforcement of one part of the law can defend themselves by identifying constitutional infirmities in other parts of the law. Thus, those subject to enforcement actions under the ACA have not been making the anti-mandate arguments in their defense (nor did they claim the ACA was invalid because of other potentially unconstitutional provisions in the law as it was enacted, such at the Independent Payment Advisory Board). Nor have we seen such arguments raised in defenses against prosecutions under any of these other laws–and we certainly have not seen courts considering or accepting such arguments.

The reason such arguments have not been raised is rather clear: Standing is not dispensed in gross. A litigant needs standing for each element of their claim, and for each portion of a law they are challenging. That the Consumer Financial Protection Board may have had an unconstitutional structure (as the Supreme Court concluded in Seila Law) did not mean that each and every defendant to a prosecution under each and every provision of the Dodd-Frank Act could raise this issue and force the reviewing court to consider the constitutionality of the CFPB and whether the CFPB was severable from the provision under which those defendants were being prosecuted. Such an approach is not only without precedent. It would also make a hash of both the law of standing and severability, and would impose tremendous burdens on federal courts as routine enforcement cases metastasized into major constitutional cases. Just as the plaintiffs need to have standing to challenge the mandate-sans-penalty, any defendant seeking to challenge the mandate-sans-penalty would need standing for that challenge as well.

My bottom line: If the Supreme Court decides California v. Texas on standing grounds, it will likely do so in a way that prevents future plaintiffs from trying to resuscitate the claims in this case, and it will not leave the ACA vulnerable to collateral challenge based on the plaintiffs’ theory in actions enforcing other provisions of the Act.

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When Fairfax Schools Reopen, More Than 2,000 Teachers Will Still Teach From Home

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Fairfax County, Virginia, plans to partly reopen schools later this month, but some students will discover that they still have to receive lessons over their laptops.

That’s because 2,300 teachers have opted to continue teaching from home. To cover their absences, the district is hiring hundreds of classroom monitors: employees who will supervise students at their desks while they receive instruction from remote teachers.

“Classroom monitors are necessary to cover in-person classrooms for instructors who are teaching from home,” said the district in a statement.

Students will only be in school for two days each week, according to the district’s plan. Moreover, they won’t necessarily know whether their teacher intends to show up in person until they arrive at school, FOX 5 reported.

Teachers who plan to remain at home received authorization to do so under the Americans with Disabilities Act (ADA) back in the fall, before the vaccines were available. Vaccination of teachers began in January, and at present, 90 percent of Fairfax teachers have either received the first shot or made appointments to do so. It’s not clear whether the same is true of the classroom monitors, who are not technically teachers but rather new employees.

Obviously, it would be absurd to vaccinate teachers but let them teach from home while unvaccinated assistants take their places in the classroom. A spokesperson for the district did not immediately respond to a request for comment about whether the monitors have received priority vaccination.

In any case, kids need to go back to school for more than two days a week, and can safely do so, according to the Centers for Disease Control and Prevention (CDC). Their teachers should join them—especially if they have already been vaccinated.

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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.

In 2020, the Institute for Justice won a landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. Despite that ruling, the 1st U.S. Circuit Court of Appeals, in October 2020, upheld a religious exclusion in Maine’s tuition assistance program for high school students. Now IJ is asking the Supreme Court to take the case.

  • Connecticut enacts a law limiting public access to court records in cases transferred from juvenile court to regular criminal court. Newspaper sues, alleging a First Amendment violation. Second Circuit: They’re right! “A more narrowly tailored approach – with a presumption of openness but the availability of confidentiality upon a showing of necessity – would better balance the public’s right of access against the dangers of stigmatizing juveniles by providing fuller protection when necessary.”
  • After a Connecticut prison guard is found liable for $300k in damages to an inmate whose beating he facilitated, the state graciously picks up the tab. Minus $142k for the cost of the inmate’s incarceration. Also, minus $65k for the cost of the inmate’s legal representation. Also . . . Second Circuit: Let’s stop you right there. Except for some money the inmate has already spent and some child support that was validly withheld, the guard is still on the hook for $270k.
  • “Am I being detained?” “You’re not detained.” “Am I free to go?” “No.” Fourth Circuit: Not how that works.
  • Although appellate courts hardly ever reassign cases to a different judge on remand, the Fifth Circuit brings us the rare doozy. Among other things, the district court judge told plaintiff’s counsel, “I will get credit for closing two cases when I crush you”; participated in the deposition of the plaintiff; and prohibited the plaintiff from conducting discovery beyond one two-hour deposition after summary judgment briefing.
  • Pretrial detainee seeks release from custody given the pandemic. Fifth Circuit (splitting from the Sixth): Habeas law is available to review the legal basis for the imprisonment, not to let someone out sooner because of the possibility of disease.
  • Tarrant County, Tex. family court judge is fired in response to her husband’s vicious campaigning against elected family-court judges. Fifth Circuit: Her position was a policymaking and confidential role where trust and loyalty are key. So even though this might otherwise be First Amendment protected activity, it isn’t here.
  • Federal law provided much tougher sentences for crack cocaine than powder cocaine offenses for more than twenty years. But in 2010, Congress started to fix this disparity with the Fair Sentencing Act, which decreased the penalties for crack, followed by the First Step Act in 2018, making the changes retroactive. What about people convicted of selling both crack and powder? They get sentencing relief, too, says the Fifth Circuit. Though statutory eligibility doesn’t extend beyond offenses involving crack, it isn’t limited to offenses involving only crack.
  • In the middle of the night, Moraine, Ohio police officers discover a man asleep in the driver’s seat with his hand on a gun. They wake him and order him to show his hands, which he does at least initially. Police say they saw him reach back for his gun, and they open fire and kill the man. An expert says that he was shot with his hand up in the air, not on the gun. Unreasonable use of deadly force? Sixth Circuit: Nope. Dissent: The mere presence of a gun in an open-carry state while in a locked car isn’t an immediate threat.
  • With another in the wave of COVID-related compassionate release request cases, the Sixth Circuit says that district courts can’t deny such a request solely on the basis that the inmate remains a danger to the community.
  • After being busted with over 184k images of child pornography, this criminal defendant downloaded another 10k images because (he later explained) he believed he “did nothing wrong” and “got bored.” The probation officer nonetheless recommended a below-guidelines sentence because he believed the guidelines’ enhancement for use of a computer was outdated. Seventh Circuit: The district court was not required to address the probation officer’s recommendation, and the district court had good reason to impose a longer sentence given the need to deter further misconduct.
  • In accordance with longstanding national tradition, a litigant filed suit in federal court challenging the erection of a nativity scene on government property as a violation of the Establishment Clause. Seventh Circuit: The district court found a constitutional violation under the so-called Lemon test, but we hold that Lemon does not survive more recent Supreme Court decisions. The nativity scene survives constitutional challenge because it fits within a long national tradition of using nativity scenes as part of broader holiday displays.
  • United Airlines provides paid leave for jury duty and sick leave, but provides only unpaid leave for military reservists on short-term military duty. Seventh Circuit: USERRA entitles absent military personnel to the same “rights and benefits” as other employees, including “wages or salary for work performed,” and that includes the right to paid leave. United says paid leave must be excluded because it involves payment for work not performed, but the statute’s reference to “work performed” is merely illustrative. Still, on remand, the court will have to determine whether military leave is comparable to jury duty or sick leave.
  • A sentence of 30 months for being a felon in possession of one (1) bullet “may seem, on its surface, disproportionate,” says the Eighth Circuit, but don’t worry—it is, in fact, totally cool.
  • Asylum applicant: You can’t deny my application on the grounds that I committed a crime because all the charges against me have been dropped. DHS: We have no idea if that’s true. Eighth Circuit: Shouldn’t you guys, like, try to find out?
  • In which the Board of Immigration Appeals finds that attempted gang rape, death threats, and physical assaults of family members do not constitute a sufficient “amount of mistreatment” for an asylum application, and the Ninth Circuit says that’s actually plenty, thanks.
  • How much trouble can one floral-print fabric design cause? A lot, as shown by this Ninth Circuit panel’s near-60 pages of disagreement over the Copyright Act, the relationship between final judgments and pre-trial orders, and the meaning of the word “any.”
  • Ninth Circuit: A previously deported alien does not commit “illegal reentry” simply by reentering the country when he’s not allowed to. (Judge Bybee, dissenting: He commits illegal reentry when he reenters illegally.)
  • Civil procedure buffs know that if you include too few facts in your complaint, you might be dismissed under Twombly/Iqbal, but what if you include too many? Eleventh Circuit: You’ll be dismissed under our case law concerning “shotgun pleading.” Concurrence: And here’s how to avoid that.

Friends, are you tired of billable hours? Are you unfulfilled with your current job? Do you want to litigate the kind of cases that made you go to law school in the first place? Good news! The Institute for Justice is hiring recent graduates and experienced attorneys. Learn more here.

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Indiana Argues That the State Should Be Able To Take Everything You Own if You Commit a Drug Crime

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In 2013, Tyson Timbs sold drugs to an undercover cop. Suffering from a history of addiction, he relapsed after the death of his father the previous year.

In 2021, the state of Indiana is arguing why it should have the right to steal his car, and the assets of those like him.

The two may seem entirely unrelated. That is because, in many ways, they are. Timbs purchased a $42,000 Land Rover in 2012 with his father’s life insurance payout; the transaction was divorced from any drug offense. But under a practice called civil asset forfeiture, states are permitted to seize property if someone is merely suspected of committing a crime, often even without an indictment. In Indiana, prosecutors may proceed simply with a preponderance of evidence.

Appearing before the Indiana Supreme Court yesterday, the state argued that it was plainly constitutional when they robbed Timbs of his Land Rover in 2013—the third time they have made such an argument before the state’s high court over the last four years.

In May 2020, Timbs reclaimed the car, but not after a legal saga that saw his case ping-pong up and down the rungs of the U.S. court system. Indiana’s high court rejected Timbs’ initial plea, noting that the U.S. Supreme Court had not yet ruled on whether the Eighth Amendment—which protects against excessive fines and fees—applies to states.

In February 2019, SCOTUS said it does. The Indiana Supreme Court then created guidance on what qualifies as “excessive,” but instead of deciding on Timbs’ case specifically, they passed the buck to a lower court with the new rules in hand.

A trial court ruled in his favor in April 2020, writing that seizing the vehicle—which was worth four times the value of the maximum financial penalty for the crime Timbs committed—was indeed “excessive.”

Indiana was unfazed. “The state is once again asking the Indiana Supreme Court to hold that there is no proportionality limit on how much property they can forfeit, that they can forfeit a Bugatti if it goes five miles over the speed limit, regardless of what an obvious mismatch and injustice that would be,” says Sam Gedge, an attorney at the Institute for Justice, the legal nonprofit representing Timbs.

Their alternative argument isn’t much better. The state maintains that, even if proportionality is on the table, “when it comes to punishing anybody who struggled with drug addiction, no punishment is too high,” Gedge explains. “So [the state] can basically take everything they own, and that shouldn’t violate the excessive fines clause.”

States generally defend that line of thinking under the guise that asset forfeiture helps fracture criminal enterprises. Reality paints a different picture. Police often pocket the proceeds in department slush funds—a lucrative game, when considering that state and local governments have leveraged the law to steal more than $68 billion from people in their communities.

More fraught is that such recourse does not have an impact on crime. But it can prevent people from successfully reintegrating into society after a stint in the criminal justice system. That was not lost on the Indiana trial judge who ruled in Timbs’ favor last April, describing the car as “a tool essential to maintaining employment, obtaining treatment, and reducing the likelihood that he would ever again commit another criminal offense.”

Timbs did his time, serving one year on house arrest and five years on probation. Both have long passed. It appears the state, however, would like to punish him forever.

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American Bar Association Will Not Vet Biden’s Judicial Nominations

For the past 70 or so years, the American Bar Association has rated federal judicial nominations. For most of that time, the ABA has conducted its evaluations prior to nomination. That is, the White House has provided the ABA with the names it was considering, and the ABA provided its evaluation privately. In some cases, a “Not Qualified” rating would discourage the White House from going forward with the nomination, other times not.

The George W. Bush administration broke with this tradition, in part due to empirical evidence that the ABA graded on a curve, giving prospective conservative nominees poorer evaluations than prospective liberal nominees with equivalent experience. The Trump Administration likewise did not allow for pre-nomination ABA evaluation, while the Obama Administration did.

The Biden Administration will follow the lead of Bush and Trump, rather than Obama, when it comes to the ABA’s role in the judicial nomination process. As first reported by the Washington Post, the Biden Administration is concerned that waiting for ABA evaluations before making judicial nominations will slow down the process and complicate efforts to diversify the federal judiciary. I commented on this at Bench Memos, as did Ed Whelan.

The New York Times’ Charlie Savage has additional reporting on the reasons for the Biden Administration’s decision.

In a phone call last Friday, . . . Biden administration aides . . .  informed [ABA President Patricia Lee] Refo that Mr. Biden would not share the names of people he was considering nominating for advance vetting.

People briefed on the call said White House officials raised concerns that the subjective criteria by which the group gathered impressions from peers of lawyers under consideration might be vulnerable to unintentional negative assumptions and racial or gender stereotyping.

During Mr. Obama’s presidency, the association’s vetting committee deemed candidates for judgeships “not qualified” at a more frequent rate than it objected to potential nominees under President Bill Clinton, Mr. Bush or Mr. Trump. By November 2011, it had objected to 14 of 185 candidates.

Most of those the group rejected were women or members of a minority group, frustrating Obama administration officials who had made it a goal to diversify the bench. Their identities did not become public because Mr. Obama did not nominate any of those who received negative ratings. The recurring conflict was said to have contributed to his delays in filling vacancies.

For what it’s worth, research by Maya Sen appears to show that, even when controlling for education, experience and partisanship, women and minorities have received lower ABA ratings, and that ABA ratings do not appear to correlate with subsequent judicial performance, as measured by reversal rates.

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Biden Cuts Support for Saudi War in Yemen, But It Should Only Be the First Step

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Speaking at the State Department this week for the first foreign policy speech of his term, President Joe Biden laid down a marker: the United States will no longer be doing Saudi Arabia’s bidding.

The offensive military support Washington has provided to the kingdom during its ongoing air war in Yemen is now coming to a halt. “This war has to end,” Biden told the staff and diplomats assembled in the Benjamin Franklin Room. The announcement was a belated but welcome shift in policy for those who have long believed that showering Riyadh with air-to-ground munitions and diplomatic backing was exacerbating Yemen’s conflict, hindering the United Nations-facilitated diplomatic process and violating U.S. interests and values.

How the announcement will impact the bilateral U.S.-Saudi relationship as a whole is yet to be determined. As Biden reiterated, Washington will continue to assist the kingdom on defensive security measures, which suggests that the basic tenets of the 76-year-old arrangement will survive to some extent. Biden’s change in Yemen policy, however, is an opportunity for the administration to conduct a comprehensive review of U.S.-Saudi relations. While it would be a mistake for the U.S. to arbitrarily throw its entire relationship with the Saudis overboard, there is no question the old oil-for-security transactionalism that was first cemented between President Franklin Delano Roosevelt and King Abdul Aziz Ibn Saud near the end of the Second World War is past its sell-by date. As geopolitics change, America’s security partnerships must change along with it.

The Biden administration should rest its review of U.S. policy on Saudi Arabia upon three pillars.

First, Washington needs to place relations with Riyadh on an accurate baseline. As much as Saudi officials may wish otherwise, the monarchy is not a formal treaty ally of the United States and is thus not entitled to unconditional U.S. security privileges whenever it finds itself in trouble. Regrettably, if the monarchy believes it holds special status with the U.S., it’s because Washington has done little to disabuse Riyadh of this assumption. The U.S. has been all too willing to give Saudi Arabia the benefit of the doubt across successive administrations—in the case of Yemen, this took the form of mid-air refueling of Saudi combat aircraft, providing intelligence on Houthi targets, diplomatic cover at the United Nations, and the export of the bombs and spare parts needed to prosecute the war. The Biden administration’s contention that the U.S. will cooperate with Riyadh when U.S. and Saudi interests coincide and “not shy away from defending U.S. interests and values where they do not” is an encouraging evolution in Washington’s approach that must be operationalized if it’s to have any meaning.

Second, the U.S. should stop approaching the Middle East through a black-and-white frame. The common perception in the Beltway is that in the broader regional power struggle between Saudi Arabia and Iran, the former is irreplaceably good while the latter is indisputably bad. The real answer, however, is that Saudi Arabia and Iran have both done their fair share to destabilize the Middle East. Tehran’s material support for proxies in multiple Arab countries is a key facet of its foreign and security policy, while Riyadh’s multiple infractions during the era of Crown Prince Mohammed bin Salman—kidnapping the former Lebanese prime minister, launching a misguided military stalemate in Yemen, and boycotting neighboring Qatar for over three years—have introduced serious fissures into the region’s security architecture. The U.S., therefore, should stay out of the Middle East’s internal squabbles as a general principle, avoid picking winners in those fights, and begin the process of diversifying its diplomatic relationships with other states so the Saudis don’t have an undue influence over U.S. policy.

Third, the Biden administration should support critical voices in the region who are seeking a new security architecture for the Middle East—one that relies less on the force of arms and more on direct diplomacy and confidence-building measures. On January 31, Saudi researcher Abdulaziz Sager and former Iranian diplomat Hossein Mousavian put forth an approach calling for exactly that. “The first step toward a tolerable modus vivendi would be for each side [Saudi Arabia and Iran] to recognise the other’s threat perceptions…and embrace a set of foundational principles upon which to build.” Those principles would include a joint commitment from Riyadh and Tehran that sovereignty will be respected, a prohibition on the use of force to resolve disputes, and dropping the pursuit of hegemony as a policy objective. A stable balance of power is the system that best serves U.S. interests. While establishing a workable security architecture in the region should ultimately be left up to those who live in the region, Washington can offer assistance in such discussions if deemed helpful.

The Biden administration’s decision to pull the United States out of Yemen’s six-year-long civil war was a highly prudent act. But it’s merely a first step. Washington’s Middle East policy must be anchored in restraint and humbleness. This simply won’t happen until U.S. policy makers realign the U.S.-Saudi Arabia relationship with the realities of the world today—not on how the world looked during the Cold War.

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