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In Buckley v. American Constitutional Law Foundation (1999), the Supreme Court declared unconstitutional a Colorado law that only permitted registered voters to circulate petitions. The City of Houston (my hometown) had a similar law. Did Buckley “strike down” the Houston law? Of course not. It has remained on the books for nearly twenty years.

Recently, two people who were not registered voters in Houston challenged the local ordinance. The City argued that the Plaintiffs lacked standing to challenge a law that could not be constitutionally enforced, or in the alternative, the case was moot, because the ordinance could not be constitutionally enforced.

The Fifth Circuit disagreed on both counts, and found that the plaintiffs could challenge the “zombie” statute. Judge Costa wrote the majority opinion.  And he accurately described the process of judicial review.

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of- Erasure Fallacy, 104 VA. L. REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example.1 See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH. ST. L. REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO. L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

I am happy for the citation, but even happier that the panel rejected the myth of judicial universality: the Supreme Court cannot bind nonparties, or enjoin unchallenged statutes, in a given case. The Supreme Court is a court like any other, and can only issue judgments to the parties before it.

The rest of the opinion is a joy to read. Here are a few of the better turns of phrase:

This case thus requires us to decide when the threat of continued enforcement is enough to reanimate a zombie law and bring it from the statutory graveyard into federal court.

Although there would not usually be a reasonable fear of continued enforcement of a zombie law, the history of Houston’s qualified-voter requirement we have recounted gives Trent Pool standing to seek an injunction that would guard against continued chilling of his speech. This zombie shows signs of life.

A reasonable concern that the City might enforce its unconstitutional Charter provision has raised this zombie law from the statutory necropolis.

I have only one criticism of this otherwise exemplary opinion. The panel should have held onto the case for another eight days, and released it on October 31. It would have been the perfect Halloween Trick and Treat!

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During the climate change segment of the presidential candidate debate last night, President Donald Trump goaded his opponent former Vice-President Joe Biden with the question,”Would you close down the oil industry?” Biden responded, “I would transition from the oil industry. Yes.” Trump immediately interrupted crowing, “That’s a big statement.” Biden agreed that it was a “big statement,” and added, “Well if you let me finish the statement, because it has to be replaced by renewable energy over time, over time, and I’d stopped giving to the oil industry, I’d stop giving them federal subsidies.”

Trump retorted, “In terms of business, it’s the biggest statement.” Why? “Because basically what he’s saying that he’s going to destroy the oil industry. Will you remember that Texas? Will you remember that Pennsylvania, Oklahoma. Ohio?,” asked the president.

When given a chance by the moderator to respond, Biden declared, “He takes everything out of context, but the point is, look, we have to move toward net zero emissions. The first place to do that by the year 2035 is in energy production, by 2050 totally.”

In this case, Biden was essentially summarizing his plan to respond to man-made climate change by phasing out the use of fossil fuels to produce electricity in the U.S. by 2035 followed by a complete transition to non-carbon dioxide emitting energy sources by 2050. Concerned that voters would be alarmed by Trump’s insinuation that Biden intends to “destroy” the oil industry imminently the Democratic presidential candidate later that night told reporters, “We’re getting rid of the subsidies for fossil fuels, but we’re not getting rid of fossil fuels for a long time.”

Getting rid of government subsidies is always a worthy project, but just how much money is supposedly being lavished on the oil industry? An August policy brief by the Breakthrough Institute* trenchantly observes that “ending fossil fuel subsidies won’t end fossil fuels.” Citing an estimate from the Resources for the Future think tank, the policy brief notes “that the federal government subsidizes fossil fuel extraction to the tune of about $4.9 billion a year. That’s not chump change, but compared to fossil industry revenues of $180 billion, it hardly seems essential to fossil energy operations.”

Besides the oil transition kerfuffle, President Trump asserted again that a Biden administration would ban fracking as a method to produce natural gas and oil. In fact, Biden has made confusing public remarks about his intentions with respect to fracking, but his official campaign position has consistently been that his administration would not ban fracking on private land, but would ban new fracking on federal lands.

During the debate, Biden did say, “What I will do with fracking over time is make sure that we can capture the emissions from the fracking.” In other words, a Biden administration would seek to re-impose Obama-era regulations that aimed to limit that amount of the potent greenhouse gas methane leaking into the atmosphere from gas and oil wells. The costs of implementing such regulations would likely put a number of smaller oil and natural gas production companies out of business.

President Trump entirely ignored the moderator’s question about how relaxing regulations on pollutants from refineries and chemical plants is harming the health poor people who live next door to such facilities. Instead he asserted, “The families that we’re talking about are employed heavily and they are making a lot of money, more money than they’ve ever made.” He went on to claim that he had saved the oil industry “when oil was crashing because of the pandemic.” How? “Say what you want of that relationship, we got Saudi Arabia, Mexico and Russia to cut back, way back. We saved our oil industry and now it’s very vibrant and everybody has very inexpensive gasoline,” he claimed.

Let’s first look at jobs in the oil and gas industry. According to the Bureau of Labor Statistics (BLS), the number of people employed in oil and gas extraction reached a recent peak of just over 200,000 in 2014 and then fell to just over 140,000 by 2018. More recently employment in oil and gas extraction has hovered around 155,000. They are good jobs with oil and gas workers earning an average of $48 per hour.

What about Trump’s claim that he saved America’s oil industry? Just prior to the COVID-19 pandemic, the price of oil averaged around $50 per barrel. In the wake of global lockdown in April the price briefly collapsed to below $20 per barrel. That month Trump apparently threatened to withdraw American troops from the kingdom unless the Saudis cut back on their oil production. Shortly thereafter Saudi Arabia, Russia and other producers announced they were reducing their overall production by 10 percent.

The goal of cutting production is, of course, to boost oil prices which in turn leads to consumers paying more for a gallon of gasoline at filling stations. And so it has. In February, just before the lockdown the average price was $2.53 for a gallon. This fell to $1.94 in April but has since rebounded to $2.27 per gallon. The drop from nearly 800 operating oil and gas rigs at the beginning of year to the lowest number ever of just 250 today suggests that Trump’s characterization that the industry is “very vibrant” is exaggerated.

Biden’s garbled responses to Trump’s goading may have given the Republican candidate’s campaign a soundbite to wield against the former vice-president in the last two weeks of the presidential contest. But Biden’s  “big statement” merely reiterates, for good or ill, the goals of his 30-year climate change plan. Ultimately, the Democratic candidate acknowledged reality when he observed that “we’re not getting rid of fossil fuels for a long time.”

*Disclosure: The Breakthrough Institute has paid my travel expenses to participate in several of its conferences over the past couple of years. 

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On Monday, October 26, the Pennsylvania Bar Institute will present a day-long continuing legal education program, “The Law of Guns.” The program is accredited in Pennsylvania for five hours of substantive CLE plus one hour of ethics. Most state CLE programs are fairly liberal about granting CLE for a program accredited in another state.

The program will be webcast, and you can register here. The cost is $279, or $140 for new attorneys. Below is the program and presenters. All times are Eastern.

9:00—10:00. Regulation of Assault Weapons. John Parker Sweeney, of Bradley Arant Boult Cummings LLP. A very experienced litigator for firearms law in general, including so-called “assault weapons.”

10:10 – 11:10. Reforming Mental Health Law to Protect Public Safety and Help the Severely Mentally Ill. Presented by me, David Kopel.

11:20 – 12:20. Firearms, Land Use and the Constitution. Anna M. Barvir. A litigator with Michel & Associates, the leading firearms law firm in California.

12:55—1:55. License to Carry in Public and The Right to Bear Arms. Stephen Halbrook. Since the early 1980s, one of the leading scholars and attorneys on arms law issues. With a 5-0 record in Supreme Court cases, including Printz v. United States.

2:05 – 3:05. Standing in the 2nd Amendment Context. Jay Porter of Bradley Arant Boult Cummings LLP. Another very experienced litigator. Standing might not seem like a glamorous issue, but it is critical in Second Amendment litigation, and in civil rights litigation generally.

3:15 – 4:15. Red Flag Laws. This is the one-hour ethics component. Jonathan Goldstein, of Goldstein Law Partners. A leader in Pennsylvania arms litigation, including on Pennsylvania’s notorious laws for lifetime deprivations of the right to arms without due process.

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Despite President Donald Trump’s claims, the U.S. military likely won’t play much of a role in distributing a COVID-19 vaccine.

“We have a vaccine that’s coming, it’s ready,” Trump said near the start of Thursday’s presidential debate. “It’s going to be announced within weeks, and it’s going to be delivered. We have Operation Warp Speed, which is the military, is going to distribute the vaccine.”

Trump has been using variations of this line for months—as far back as May, he was talking about “mobilizing” the military for vaccine distribution—but his own medical and military officials say it’s simply not true. Once a vaccine is developed, it will be handled the same way as any other: distributed by pharmaceutical companies through doctors’ offices and pharmacies.

“Our best military assessment is that there is sufficient U.S. commercial transportation capacity to fully support vaccine distribution,” Department of Defense (DOD) spokesman Charles Pritchard told American Shipper, a logistics industry publication, last month. “There should be no need for a large commitment of DOD units or personnel to support the nationwide distribution of vaccines.”

“For the overwhelming majority of Americans,” Paul Mango of the Department of Health and Human Services told The New York Times, “there will be no federal official who touches any of this vaccine before it’s injected into Americans.”

In July, McClatchy reported that the military commands responsible for homeland defense and the National Guard have not even been asked to prepare a plan for the distribution of a coronavirus vaccine.

In any case, Trump’s focus on distributing the vaccine is a bit premature. The CEOs of pharmaceutical companies Moderna and Pfizer have claimed that their COVID-19 vaccines may be ready by the end of this year or in early 2021, but Centers for Disease Control and Prevention chief Robert Redfield has warned that there may not be a vaccine widely available until “late second quarter, third quarter 2021.”

It’s true that some military resources are involved in Operation Warp Speed, the public-private partnership that aims to invent, produce, and deliver 300 million doses of a coronavirus vaccine by January 2021. But once a vaccine is developed, any military involvement, according to Pritchard, would likely be just “to deliver vaccines to a remote location only if no other means of transportation is feasible.”

Unless you’re really committed to social distancing—living in an isolated shack in the middle of Alaska, perhaps—your COVID-19 vaccine will probably be distributed just like your flu shot: through your local doctor’s office or pharmacy.

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The parents of a seventh-grade boy received a letter from his school in Lafayette, California, warning of possible truancy charges if he missed any more virtual class sessions.

“Out of the blue, we got this letter,” Mark Mastrov, the boy’s father, told the East Bay Times. “It said my son had missed classes and at the bottom, it referenced a state law which said truants can go to jail for missing 90 minutes of class.”

Mastrov assumed the school had been sent in error, so he called the school. He was shocked to learn that the authorities meant business: The law says any kid who misses three full days of school or is tardy for a 30-minute class period on three separate occasions can face jail time.

The policy was obviously intended to cover unexcused absences for in-person education, but the district apparently intends to apply it to virtual education as well.

Mastrov contends that his son didn’t miss his classes but simply logged on after his teacher had already taken attendance.

“Who passed this law in their infinite wisdom?” he wonders. “Who in their right mind could do that?”

Virtual learning is a deeply frustrating experience for many families, and schools should be maximally patient with students and their parents. Unfortunately, education officials around the country have been making life unnecessarily difficult for students who don’t sign in to their classes on time. Some places have even required teachers to perform virtual wellness checks, and to call the cops on parents if their kids seem checked-out during class. One kid got in trouble because his camera caught a glimpse of a toy gun, as though that’s comparable to bringing an actual weapon to a physical school.

This pandemic has caused enough problems on its own. Parents don’t need to be threatened with jail time for failing to master a hopelessly frustrating—and temporary—new system.

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

New on the Short Circuit podcast: IJ attorneys Kirby West and Jeff Redfern consider the pressing issues of the day, such as how many Ninth Circuit judges does it take to change an en banc denial and can butterflies flutter over The Wall?

• Almost forty years ago, a defendant was convicted of killing a man on Christmas eve on the streets of Philadelphia. Twenty years ago, somebody else confessed to the murder. Ten years ago, a key witness for the prosecution recanted her testimony. Six years ago, two more witnesses recanted. Third Circuit: We view recantations with suspicion, but the number of recantations here warrants an evidentiary hearing.
• Last month, North Carolina elections officials, apparently wary of the Post Office’s ability to deliver absentee ballots in time, extended the deadline for receipt from three to nine days after election day (ballots still must be mailed by election day). Much litigation ensues. The Fourth Circuit takes the unusual step of taking the case en banc after the panel had voted but before the panel opinion had been drafted. And the en banc court will not put a stop to the ballot-receipt extension, over some dissenters who are displeased both with the substance of the decision and the process it took to get there.
• Former co-owner of Dinero Express is convicted of money laundering: running it through washing machines, when it arrives smelling like mischief, but also running it through a series of money transfers. Fifth Circuit: While petitioner was a success at money laundering—both literal and figurative—his habeas petition raises issues that could have been raised in an earlier petition and is an abuse of the writ. Concurrence: I agree, but I also think we should reconsider our habeas case law to further restrict the writ.
• Texas’s absentee-ballot system involves a “Signature Verification Committee”—a “politically diverse” group that is tasked with approving or rejecting signatures on mail-in ballots. The committee verifies signatures on the ballot application and the absentee ballot envelope, and it may also look to signatures from that voter within the last six years that are on file with the county clerk or voter registrar. If a majority of the committee votes to reject a signature, the voter must be notified but has no opportunity to challenge the rejection. Considering that absentee ballots are “the largest source of potential voter fraud” and voting by mail is a privilege rather than a constitutional right, says the Fifth Circuit, this system is fine, at least fine enough to apply to this election.
• For their entire lives, two teenage brothers in Mathis, Tex., have each kept a lock of their hair uncut as a promesa (a practice among American Catholics of Hispanic descent, which involves petitioning God with a request and vowing to fulfill a promise in return). In 2017, their public school informs them that they cannot participate in extracurricular activities unless their adhere to the school’s grooming standards, which prohibit their long hair. District court enters preliminary injunction, finding that the school is likely violating the family’s rights under the Texas Religious Freedom Restoration Act.  Fifth Circuit: And contrary to the school’s protestations, Brother #1 did not have to comply with pre-suit notice requirements. But Brother #2 should have, meaning the preliminary injunction is vacated as to him.
• In 1998, Kentucky passed a law requiring abortion facilities to acquire a written agreement with a local hospital plus a written agreement with a local ambulance service to transport patients with abortion complications. Recently, state officials added a requirement that the hospitals be within a 20-minute drive. Sixth Circuit (over a dissent): There’s no indication that both of the state’s abortion facilities would close if the law is enforced, so it’s not accurate to say that the regs impose an undue burden on the right to abortion. (Attn circuit-split watchers: The chief justice’s concurrence in last term’s June Medical Services continues to confound; the Sixth Circuit sides with the Eighth and splits from the Fifth as to the effect of the concurrence.)
• Allegation: Pretrial detainee smuggles cigarettes into jail, fails to bring enough for everyone, and suffers three beatings at the hands of envious inmates before Coffee County, Tenn. jail officials finally grant his request to transfer him to a safer cell block. Deliberate indifference? Jail officials: If he hadn’t smuggled in those cigarettes, he wouldn’t have gotten beaten up all those times. Sixth Circuit: No qualified immunity.
• Tennesseans who registered to vote online or by mail may not vote absentee in the first election after they registered. District Court: That ban violates first-time voters’ constitutional rights, so it’s enjoined. Sixth Circuit: And we won’t stay that injunction. For one thing, we don’t understand why the government waited nearly a month to appeal and seek a stay given that the election is so quickly approaching.
• Michigan has long prohibited people from hiring cars to take voters to the polls unless they’re physically unable to walk. The law was first enacted in 1895 to prohibit the classic form of bribery known as vote hauling, which is “cast as a way to get voters to the polls, [but is] often little more than an efficient vote-buying operation.” And, 125 years later, two-thirds of this Sixth Circuit panel will allow the gov’t to enforce the law for this election.
• Out of a total of 60 potential jurors for trial over 2007 Champaign, Ill. triple shooting, just two are African-American. The prosecutor strikes one of them who is familiar with the scene of the crime. (Defendant is convicted and sentenced to 90 years.) State court: Which is a perfectly reasonable reason to strike a venireperson. Seventh Circuit: Just so. The lack of African-Americans in the jury pool was a minor anomaly and is neither here nor there Batson-wise.
• FBI agent is ordered to turn over his laptop, which contains surreptitious recordings of Arkansas state senator (who is ultimately sentenced to 18 years for taking bribes). Instead, the agent pays a computer shop to erase the hard drive and scrubs it again himself after. Then he lies to his superiors and the court. Nonetheless, the recordings are recovered elsewhere, and they’re not particularly helpful to the defense. So was there something else on the laptop that would make the agent risk criminal charges, his career? Eighth Circuit: Whatever it was, it doesn’t help the senator (or his conspirators). Conviction affirmed.
• After blowing a deadline by which it was required to promulgate rules for managing landfill emissions, the EPA is ordered to wrap things up by November 2019. Instead, EPA conducts a rulemaking extending their deadline until August 2021. District Court: Nope, you’ll stick to the November 2019 date. Ninth Circuit: Nope, it’s an abuse of discretion to refuse to modify an injunction when the underlying law has changed.
• “What if the State of Washington passed a law that gave the reigning political party access to certain State-controlled, speech-enabling information, but denied that information to everyone else? It is hard to imagine anyone believing such a law would be constitutional under the First Amendment. So should it matter if the State enacted the same law, but instead of giving the information to the incumbent political party, it gave it to an incumbent public-sector union that serves as the exclusive bargaining representative for certain employees paid with public funds? That is what happened here when Washington voters enacted I-1501.” So writes Judge Bress, dissenting from a panel opinion of the Ninth Circuit upholding the initiative.
• If you walk towards someone you allegedly assaulted earlier in the day, with a knife drawn, and while defying specific police orders to stop, do you have a clearly established right to be free from the use of deadly force? Ninth Circuit: You do not. Qualified immunity.
• Federal law taxes revenue from selling illegal drugs, but doesn’t allow deductions for business expenses. Yikes! And that rule applies even where marijuana is legal as a matter of state law. Tenth Circuit: Over the past several years, numerous dispensaries in Colorado have resisted complying with IRS subpoenas seeking information about their revenues and expenses. As usual, their arguments fail.
• Long-haul trucker and his trainee are accosted by a woman in a Homewood, Ala. parking lot. She accuses the trucker of hitting her car on the highway. Police arrive, and matters escalate quickly. Trucker’s allegations: Per company policy, I tried to photograph the alleged damage to the woman’s car, and the officer tased me in the back without warning, kicked me, and broke my jaw, then tased me again, then pepper-sprayed me, and then two more officers arrived and continued to kick, strike, and choke me. Eleventh Circuit: At the summary judgment stage, the district court erred by not crediting the man’s account. To trial the case must go.
• Florida man alleges state law enforcement agency wrongly continues to disseminate his personal information on its website after he completed probation for sex crimes against minors. District court: The man waited too long to sue; his case is barred by the statute of limitations. Eleventh Circuit: Affirmed.
• And in en banc news, the Eleventh Circuit will reconsider its holding that the Prison Litigation Reform Act prevents prisoners from recovering punitive damages for a constitutional violation unless they have been physically injured.

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