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I blogged about this case a few days ago, and also asked Prof. Jonathan Nash, the author of a recent Michigan Law Review article on Congressional standing whether he could offer a more expert judgment. He very kindly agreed, and passes along this:

The criminal prosecution in United States v. Nagarwala began traditionally enough, with the federal government, acting through the Department of Justice (“DOJ”), bringing criminal charges.  Specifically, the defendants were charged with implementing female genital mutilation in violation of 18 U.S.C. § 116(a).  The district court dismissed most charges in the indictment on the ground that section 116(a) exceeded the federal government’s enumerated powers and was therefore unconstitutional.  DOJ initially filed a notice of appeal, but then withdraw that notice; DOJ notified Congress pursuant to 28 U.S.C. § 530D of its “reluctant[]” decision to concede the statute’s unconstitutionality.

Matters took an unusual turn when the House of Representatives filed a motion to intervene in the case in order to argue on appeal in favor of the statute’s constitutionality.  Prof. Eugene Volokh has previously posted on the dubious nature of the House’s motion on separation-of-powers grounds.  I am grateful for the invitation to add some thoughts on the House’s standing to pursue this course, which I believe is highly problematic.

Two questions are present here: First, does Congress in the ordinary course have standing to assert the constitutionality of a federal statute when the executive branch has decided to abandon that argument?  Second, even if it does, does Congress have standing to do this in a criminal case?

[1.] On the first question, I have argued in favor of a functional approach to congressional standing.  On that understanding, Congress has standing to pursue its interest in information and oversight.  While this is an interest Congress has lately been advancing on numerous fronts with respect to the Trump administration, it has no application here.

A functional approach to congressional standing also recognizes the standing of Congress to challenge vote nullification and process-based changes in institutional bargaining power, i.e., settings where the executive has acted in a way that alters the constitutional balance of lawmaking power between the branches of government.  While this might seem facially to provide a basis for congressional standing here—one might frame DOJ’s action as a unilateral decision to nullify a statute duly enacted by Congress—there are several problems with this argument.

First, I have posited that the argument for congressional standing is stronger where the executive branch acts (i) in a way that results in a substantial change in the balance of power between the branches, and (ii) more unilaterally.  Here, however, the executive branch has simply declared its acquiescence in a court determination that a statute is unconstitutional.  As such, any long-term effect on the constitutional balance of power is low, and the action is hardly unilateral.  Moreover, any concern that DOJ’s action effects a blanket exercise of prosecutorial discretion (thus frustrating Congress’s implicit intent in delegating such discretion on DOJ) is cabined by the fact that future administrations would be free to seek prosecutions under the statute; no reliance rights are conferred on private actors by virtue of DOJ’s action (except to whatever extent the district court decision remains binding authority in that district; and, indeed, it is unlikely that the decision would preclude relitigation of the issue in the same district by a future administration seeking prosecution).

Second, the congressional standing for which I advocate is standing for Congress to challenge the executive branch’s action (or inaction) directly.  Here, Congress does not seek to sue some part of the executive branch, but rather to carry on a criminal prosecution against private individuals in the stead of the executive branch.

One case that provides some basis for Congress’s standing to step into the shoes of the executive branch to defend a statute’s constitutionality is United States v. Windsor.  There, the Supreme Court relied upon the House of Representative’s efforts to defend on appeal the constitutionality of the Defense of Marriage Act (DOMA) after the Obama administration had conceded the statute’s unconstitutionality.  But there the Court understood that a fundamental disagreement remained between the plaintiffs and the executive branch: While the executive branch agreed with the plaintiffs that DOMA was unconstitutional, it refused to pay the tax refund that the plaintiffs sought.  Thus, Article III standing rested on the ongoing dispute between the plaintiffs and the executive branch.  The Court relied upon the House’s argument in favor of constitutionality in order to overcome prudential objections to hearing the case; indeed, the House made its argument solely in an amicus capacity, not as an intervener (as would be the case here).

[2.] Even if Congress somehow enjoys standing in the ordinary course to step into the shoes of the executive to defend the constitutionality of a statute, the question remains whether that standing extends to the setting of criminal prosecutions.  It is often said that standing is not an issue in a federal criminal prosecution, but Professor Michael Collins and I have argued that is only the case where the executive branch, i.e., DOJ, pursues the prosecution.  Thus, we have argued, state prosecutors might face standing hurdles to pursuing prosecutions under the federal criminal law; and, indeed, the Take Care and Appointments Clauses would pose analogous hurdles.  There is every reason to think that the legislative branch would face similar obstacles in pursuing a federal criminal prosecution.  It is the federal executive branch—not state executive branch actors, and not the federal legislative branch—that executes the federal criminal laws and thus enjoys presumptive standing in federal criminal prosecutions.  And, while Congress has an interest in defending the constitutionality of its laws, that would not seem to rise to the level of interest necessary to sustain the sovereign’s interest in prosecuting a particular criminal matter.

The highly circumscribed scope of congressional standing in the criminal context is evident from the limits on congressional informational and oversight standing.  While Congress can issue subpoenas and hold individuals in contempt for failure to abide by those subpoenas, any power to hold such individuals in criminal contempt lies with DOJ, not Congress.

Perhaps the strongest case supporting congressional standing to appeal the district court’s Nagarwala decision is the Supreme Court’s decision in Maine v. Taylor.  There, the defendant was charged with violating a federal statute that criminalizes the importation of fish in violation of governing state importation statutory restrictions.  The defendant moved to dismiss the indictment on the ground that the federal criminal statute here purported to criminalize a state statute that was unconstitutional under the Commerce Clause; with the constitutionality of a state statute now at issue, the state of Maine intervened pursuant to 28 U.S.C. § 2403.   After the district court denied the defendant’s motion, the defendant entered into a guilty plea conditional on the possibility that he might win an appeal contesting the constitutionality of the underlying state statute.  After the United States Court of Appeals for the First Circuit reversed—finding the Maine statute unconstitutional—Maine, as intervener, sought review in the Supreme Court, and the Court upheld Maine’s standing to pursue the appeal.

But Maine v. Taylor offers little support for the House’s standing to pursue the Nagarwala appeal.  For one thing, the opinion includes language indicating that the case should not be read to recognize broad federal criminal standing outside of DOJ (“[P]rivate parties, and perhaps even separate sovereigns, have no legally cognizable interest in the prosecutorial decisions of the Federal Government ….”).

More importantly, there are strong reasons to think that the claim to standing of a state to challenge on appeal a decision in a federal criminal case holding a state statute unconstitutional is far stronger than the analogous claim to standing of Congress to appeal a decision in a federal criminal case holding a federal statute unconstitutional.  After all, in a setting like Maine v. Taylor itself, the entity seeking to intervene and appeal the constitutionality of the statute—the state—is precisely the entity that would be precluded from enforcing the statute in question if the case were to go unappealed.

In contrast, in the Nagarwala setting, the House faces no prospect in the future of enforcing the federal criminal statute even if the district court decision is reversed.  While the state in Maine v. Taylor faced future enforcement decisions regarding the state statute at issue, the House’s interest in Nagarwala extends solely to the constitutionality of the statute.  Put another way, the affront in the vertical separation-of-powers context—visited upon the state executive branch by the federal executive branch declining to defend on appeal a state statute against constitutional challenge—is greater than the affront in the horizontal separation-of-powers context—visited upon the federal legislature by the federal executive branch declining to defend on appeal a federal criminal statute against constitutional challenge.

It is hardly surprising that the state in Maine v. Taylor was represented by the state’s Attorney General’s office, not the state legislature.  Indeed, Congress itself seems to have recognized this logic when it drafted section 2403 (the provision that allowed Maine to intervene).  In any case that draws in question the constitutionality of a state statute that addresses the public interest where the state is not already a party, the statute calls for a federal court to notify the state’s Attorney General, not the state legislature, of that fact.  Analogously, notification of a challenge to a federal statute’s constitutionality is to go to the U.S. Attorney General, not the Congress.

That the House likely lacks standing here does not necessarily preclude congressional action to address female genital mutilation.  Congress could try to craft legislation—whether criminal or civil—that passes constitutional muster.  Indeed, DOJ’s “reluctan[ce]” to abide by the district court’s decision suggests a willingness to enforce laws on the subject that are constitutional.  What Congress likely cannot do is pursue an appeal in this federal criminal matter.

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At a 2017 Riverside rally touting legislation to increase gas taxes and vehicle-license fees to boost California’s infrastructure spending, then-Gov. Jerry Brown was characteristically grandiose.

“Roads are the fundamentals of a civilization,” he said. “Whether it was the Roman Empire or the United States of America, roads are the key to a nation’s greatness.”

As someone who once spent hours driving 50 miles on a decrepit and insanely crowded third-world country’s “highways,” I can attest to the societal importance of a modern, well-maintained freeway system. But the latest news about that gas-tax hike—and the way some cities are using the cash—speaks volumes about our civilization, too. It’s great fodder for an author who wants to chronicle the decline and fall of it.

Senate Bill 1‘s supporters made clear the $5.4 billion a year in additional infrastructure spending would reduce congestion and make getting around much easier. Any normal person would think that meant building new street and highway lanes. This isn’t high-level math: Congestion is caused by too little road space for too many cars, so adding space is the key.

Normal people apparently don’t make transportation decisions. “Two years after state lawmakers boosted the gas tax with a promise to improve California streets, some cities have raised the ire of drivers by spending millions of the new dollars on ‘road diet’ projects that reduce the number and size of lanes for motor vehicles,” according to a Los Angeles Times report.

In November, a majority of California voters opposed a repeal of those gas-tax hikes. People no doubt reasoned that even if they don’t like paying so much extra at the pump, they at least will see tangible improvements in their commutes. In fairness, the tax hike has funded many construction and maintenance projects, but it’s also funded these projects that seem designed to make our awful commutes even worse. It makes no sense.

S.B. 1 is a “landmark transportation investment to rebuild California by fixing neighborhood streets, freeways and bridges in communities across California and targeting funds toward transit and congested trade and commute corridor improvements,” according to the state of California website. That’s a fair description of how its backers described the controversial plan to skeptical taxpayers.

When did anyone ever say anything about “road diets”?

Actually, the law’s fine print promised to add bike lanes and improve road safety. Not many people figured that California cities would do this by building wider, protected bicycle routes and removing the number of traffic lanes in the process. In the city of Sacramento, near where I live, officials have used this strategy. It has turned downtown thoroughfares from a crowded rush-hour mess into total, gridlocked chaos. As humorist Dave Barry would say, “I am not making this up.”

The city realized “the primary collision factor on the streets was unsafe speeds,” Sacramento Mayor Darrell Steinberg said in that news report. “And one of the easiest and most cost-effective ways to reduce the speeds is to reduce the number of travel lanes.” The report pointed to a federal study showing that road diets significantly reduce the number of car accidents.  Well, sure—it’s harder to get in an accident when you’re not moving or crawling along. The next time you’re in gridlock, remember that officials did this to make you safer. Gee, thanks a lot.

This is planned congestion—an extreme case of social engineering trumping traffic engineering. These officials, who want us to sit in traffic longer as a means to avoid accidents or frustrate us into taking the bus or rail, are using the recent tax boost to achieve these goals. Californians have been had, although many of us had issued warnings.

Officials actually admit that they do this. It was obvious, though, given increases in traffic and all those new, obtrusive bicycle lanes surrounded by pylons and delineated by white, painted warning figures and lines on the asphalt. These projects also are designed to promote “equity” by “giving people safe alternatives to cars,” as one supporter told the Times. Bicycling is a fine-enough pastime and a reasonable way to get around in cities, but replacing traffic lanes with bike lanes will only make the traffic worse.

When San Jose opened a light-rail station many years ago, transportation officials reportedly considered closing a nearby highway lane to encourage people to take rail. These road-diets are even loopier. We’ve placed transportation planning in the hands of the Congestion Lobby – officials who are so hostile to car usage that they’ll go to great lengths to coerce us to ride bikes or take their slow, dirty and generally unpleasant transit systems.

Jerry Brown had it right. Roads are indeed a key to a society’s greatness. But I’d add that any civilization that raises gas taxes and then reduces road lanes to purposefully increase traffic congestion is insane and probably living on borrowed time.

This column was first published by the Orange County Register.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

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When it first premiered on the SyFy channel in 2015, The Magicians used the tagline “magic is a drug,” a signal to audiences that despite its kid-friendly premise—a group of millennials enroll in a school for spellcasters and travel to a Narnia-esque fantasy world—this was very much a show for adults. Like its source material, a popular trilogy of novels by Lev Grossman, The Magicians is filled with sex, violence, addiction, and angst. Protagonist Quentin Coldwater (think Harry Potter crossed with Holden Caulfield), who is clinically depressed, discovers that magic can’t fix what’s wrong with him. It may even make thing worse.

If magic is a drug, strictly regulating sorcery proves just as unwise as the drug war. The fourth season, which concluded in April, begins with a new world order: A bureaucratic organization called “the Library” has taken literal control, forcing all would-be magicians to fill out the proper forms—in triplicate—whenever they want to cast spells. It doesn’t take long for the Library to go full NSA and start using its newfound surveillance powers to hunt down unlicensed magic users. In a development that hardly even counts as a spoiler, the Library’s upper leadership is revealed to be using magic for a nefarious plot that could destroy the entire universe.

One of the show’s most satisfying arcs involves a prominent Librarian realizing the truth and turning against her masters. The plot is ultimately foiled, but it results in a death as shocking as any in recent TV memory—one a polarized fan community is still processing.

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