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While 33 states have legalized marijuana for medical or recreational use, the federal government recognizes no exceptions to pot prohibition. Marijuana Federalism, an essay collection edited by Case Western Reserve law professor Jonathan Adler, maps some promising pathways through this cannabis conflict.

Duke law professor Ernest Young argues that the combination of limited federal resources and the anti-commandeering doctrine, which implies that Congress cannot compel state officials to enforce federal drug policies, means states can effectively nullify marijuana prohibition in most of its applications. But as University of Alabama law professor Julie Andersen Hill notes, that observation provides little reassurance to banks, which will continue to eschew marijuana money until Congress removes the threat of criminal penalties and potentially ruinous regulatory sanctions.

Hastings College of Law professor Zachary Price thinks the Obama administration’s policy of prosecutorial restraint regarding state-legal marijuana activity, while constitutional, set a dangerous precedent for flouting the will of Congress in less appropriate circumstances. Vanderbilt University law professor Robert Mikos proposes a broader solution: revisiting the rules governing federal preemption of state laws, an issue raised by a 2018 Supreme Court decision allowing state legalization of sports betting.

Getting closer to the heart of the matter, University of Chicago law professor William Baude questions the legal basis for the comprehensive national ban on marijuana, which unlike alcohol prohibition was imposed without amending the Constitution. Baude suggests a narrower understanding of Uncle Sam’s authority over pot would help restore the proper balance between state and federal power.

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A sharia court in Nigeria has sentenced Omar Farouq, 13, to 10 years in prison for blasphemy. He was accused of using foul language about Allah in conversation with a friend. The same court recently sentenced singer Yahaya Sharif-Aminu to death for blaspheming Mohammed.

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From Crozier v. Westside Community School Dist., decided earlier this month by the Eighth Circuit (Judges Steven Colloton, Roger Leland Wollman, and William Duane Benton):

In the fall of 2016, A.C. was a student at Westside Middle School in Omaha, Nebraska. The complaint alleges that a teacher assigned A.C.’s eighth-grade class to watch a video about athletes kneeling during the national anthem. The week before, it is alleged, there were “violent race riots” in North Carolina that “were spurred by the shooting of an unarmed black man by a police officer.” In that context, during a “critical thinking” discussion, the teacher called on A.C. to share her ideas. A.C. demurred, but the teacher insisted that A.C. answer.

A.C. then expressed her view that “kneeling was disrespectful to law enforcement and military, and questioned that this violence could have stemmed from music lyrics that said such things as ‘F-the Police, and the use of the N-word.'” (A.C. employed euphemisms in her comments and did not use profanity or the actual “N-word.”) When the teacher demanded to know where A.C. obtained this information, she answered, “from the media.”

To explain further, A.C. shared an example from the previous school year when she overheard a conversation between two seventh-grade students, one black and one white; the white student asked why he couldn’t say the “N-word” when the black student could. The teacher then interrupted A.C. and directed her to stop speaking. The Croziers allege that if A.C. had been permitted to finish, she would have expressed her view that no one should use the “N-word.”

A.C. stayed home from school the next day due to illness. The teacher allegedly “told several class periods worth of students that A.C. was a racist.” The Croziers allege that the teacher “lied to intentionally defame and label A.C. as a ‘racist who said the N-word.'” They assert that the teacher, in speaking to other students, “made the supposition that A.C. was home that day due to suspension,” even though she knew that A.C. was home sick. The Croziers allege that the teacher admitted branding A.C. a racist: when A.C.’s mother later told the teacher that it was “entirely unfair that [she] labeled A.C. a racist,” the teacher “rolled her eyes and smugly responded, ‘I do not believe that to be unfair.'”

As a result of this alleged retaliation, the Croziers claim, A.C. was taunted by other students who “heard what [she] said,” and A.C. feared for her safety if she returned to school. Some students sent A.C. text messages asking if she was suspended. When she returned to school, some called out to her in the halls. To avoid “sneering and bullying,” she removed herself to the Dean’s office to do schoolwork, and began eating lunch in bathroom stalls to avoid anyone who could harm her. She allegedly suffered emotional distress, anxiety, and depressive thoughts.

After meeting with the principal and assistant superintendent, the Croziers removed A.C. from school and began schooling her at home. A month after the classroom discussion, A.C. called a suicide hotline, described how the teacher’s actions had caused her harm, and said that she wanted to kill herself. She twice attempted suicide. A.C. entered therapy and for a time was under 24-hour suicide watch. The Croziers later transferred A.C. to a new school.

The Croziers contacted eight lawyers about A.C.’s case but were unable to retain one…. [Later, t]he Croziers contacted twenty-seven more lawyers, Nebraska Legal Aid, and a legal clinic at a local law school, without success. The lawyers gave various reasons for declining, including lack of qualifications for the case, workload, lack of interest in the case, and conflicts of interest.

The Croziers sued pro se, but the Eighth Circuit concluded that nonlawyer parents generally couldn’t represent their children in court (just as nonlawyers generally aren’t allowed to represent anyone other than themselves). And because “In Nebraska, if a plaintiff is a minor at the time a cause of action accrues, the statute of limitations is tolled until plaintiff reaches the age of 21,” this means “A.C. has a ‘reasonably adequate opportunity’ to sue,” and refusing to let her parents represent her “does not violate her fundamental right to access the courts.”

Nonetheless, the Eighth Circuit concluded that the trial court should appoint a lawyer for A.C.:

“Indigent civil litigants do not have a constitutional or statutory right to appointed counsel.” “Rather, when an indigent [plaintiff] has pleaded a nonfrivolous cause of action, a court ‘may’ appoint counsel.” 28 § U.S.C. 1915(e)(1)…. The [district] court concluded that although the Croziers demonstrated “their lack of financial resources” and made a “diligent effort” to obtain counsel, their constitutional claims were “not sufficiently meritorious to warrant the appointment of counsel.” … We review that decision for abuse of discretion. A district court “has a good deal of discretion to determine whether representation is warranted given the nature of the case and the litigants,” but the discretion is not unbounded.

The district court denied the motion for counsel after concluding that the Croziers were “unlikely to prevail” on their claims, including the core claim that the teacher violated A.C.’s right to freedom of speech by retaliating against her. In support, the district court cited a ruling that it was constitutional to discipline a student for uttering profanity in a principal’s office, and decisions declaring that schools and teachers may limit classroom speech based on legitimate pedagogical concerns. The court concluded that “the First Amendment affords little protection to student speech during class time,” so the teacher “likely would be entitled to qualified immunity.”

The merits of the case have not been briefed and argued, but we think the district court was too quick to dismiss the usefulness of counsel, at least on the core claim of First Amendment retaliation. It is clearly established that “[s]tudents in the public schools ‘do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'” … [T]he extent to which teachers may control student speech in the classroom is an open issue. And whatever the scope of a teacher’s authority to limit classroom discussion, it is clear that students “cannot be punished merely for expressing their personal views on the school premises—whether ‘in the cafeteria, or on the playing field, or on the campus during the authorized hours.'”

The allegation here is that a public school teacher retaliated against a student merely for expressing her personal views when called upon to speak in a classroom. The complaint asserts that the teacher defamed the student by falsely labeling her as a racist who uses the “N-word”—an act that the district court understandably did not describe as reasonably related to a legitimate pedagogical concern. A retaliation claim requires proof that the teacher’s action would deter “a person of ordinary firmness” from continuing to speak, but the stress, anxiety, and ostracization arising from a teacher’s false attribution of racist utterances to a middle-schooler might fit the bill. The district court did not address whether retaliation by defamation is any more permissible than the “punishment” expressly forbidden by Tinker, or otherwise elaborate on why retaliation for classroom speech would be consistent with the First Amendment.

Ordinarily, the denial of a motion to appoint counsel would mean that the plaintiffs may continue to litigate pro se, obtain a ruling on the merits from the district court, and exercise their right to appeal. But in the unusual circumstances of this case, the district court’s denial of the motion, together with the rule against pro se representation by parents, terminated the action before any claim could be adjudicated. The student could proceed on her own when she reaches the age of majority, but that course would entail substantial delay and potential prejudice in pursuing the vindication of her alleged rights. We thus conclude that the district court’s assumption about the likely application of qualified immunity was insufficient on this record to justify denial of the motion for appointment of counsel.

We have only a complaint before us, so we do not know whether the Croziers can prove their factual allegations. Some legal theories in the pro se complaint appear stronger than others, and an attorney might assist in winnowing the claims. Having received no briefs on the merits, we express no view on whether any claim ultimately would be successful.

But the core allegation of First Amendment retaliation is a serious claim on which the plaintiffs and the court would benefit from the assistance of counsel, especially when the case otherwise cannot proceed to a timely decision on the merits. We expect that some member of the bar, in the tradition of the profession, will respond favorably to a request from the district court….

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In August, President Trump teased a future executive order concerning pre-existing conditions. (See here and here). At the time, I predicted that Trump was trying to aid the Supreme Court’s deliberations in Texas v. California. I wrote;

Ilya Shapiro and I filed the Cato Institute’s amicus brief in California v. Texas. We proposed that the Trump administration could require, by executive action, insurers on the ACA exchange to comply with guaranteed issue and community rating. But why would such an executive action be needed if the ACA is in place? Well, the ACA is currently being challenged. And perhaps one factor that could aid the Court’s deliberations would be an assurance that people with pre-existing protections could still obtain coverage on the exchanges, even if guaranteed issue and community rating (GICR) were found to be inseverable.

Here is an excerpt from our brief. Note the last emphasized sentence in Footnote 12.

The analysis for individual market, on-exchange policies is different. Hurley and Nantz are not eligible for subsidies. Declarations, supra. But they could still purchase an unsubsidized plan on the exchanges. Halting GICR with respect to policies sold on the exchanges would be an unnecessarily overbroad remedy. So long as the plaintiffs can purchase off-market non-compliant plans, or none at all, their injuries will be remedied. Plaintiffs cannot demand a greater remedy to alter all policies offered on government exchanges. Moreover, people who seek to buy a government-sponsored product on a government exchange cannot complain about cumbersome regulations. [FN 12] Courts need go no further than issue a declaration with respect to individual market, off-exchange policies. “[T]he judicial power is, fundamentally, the power to render judgments in individual cases.” Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring). No more, and no less. Hurley and Nantz, meanwhile, and all those who object to being forced to purchase unwanted policies, will have other options.

[FN12]: This narrow remedy would address concerns raised by the Federal Respondents about creating a “potentially unstable insurance market.” See Brief for the Federal Respondents at 44–45. The executive branch could also require insurance providers on the exchanges to comply with the ACA’s GICR provisions, regardless of the outcome of this litigation.

Today President Trump signed the self-styled “Executive Order on An America-First Healthcare Plan.” There are several references to the ACA litigation that, I think, are leading towards my proposal.

First, Trump accurately characterizes what the TCJA did–well sort of. The penalty was reduced to $0. Usually Trump says that he repealed the mandate. I am sure the SG will quote this sentence if a Justice tries to cite press statements.

On December 22, 2017, I signed into law the repeal of the burdensome individual-mandate penalty, liberating millions of low-income Americans from a tax that penalized them for not purchasing health-insurance coverage they did not want or could not afford

Second, the order includes a history of the ACA’s failures. I’m not really sure what purpose this discussion serves:

In an attempt to justify the ACA, the previous Administration claimed that, absent action by the Congress, up to 129 million (later updated to 133 million) non-elderly people with what it described as pre-existing conditions were in danger of being denied health-insurance coverage.  According to the previous Administration, however, only 2.7 percent of such individuals actually gained access to health insurance through the ACA, given existing laws and programs already in place to cover them.  For example, the Health Insurance Portability and Accountability Act of 1996 has long protected individuals with pre-existing conditions, including individuals covered by group health plans and individuals who had such coverage but lost it.

The ACA produced multiple other failures.  The average insurance premium in the individual market more than doubled from 2013 to 2017, and those who have not received generous Federal subsidies have struggled to maintain coverage.  For those who have managed to maintain coverage, many have experienced a substantial rise in deductibles, limited choice of insurers, and limited provider networks that exclude their doctors and the facilities best suited to care for them.

Additionally, approximately 30 million Americans remain uninsured, notwithstanding the previous Administration’s promises that the ACA would address this intractable problem.  On top of these disappointing results, Federal taxpayers and, unfortunately, future generations of American workers, have been left with an enormous bill.  The ACA’s Medicaid expansion and subsidies for the individual market are projected by the Congressional Budget Office to cost more than $1.8 trillion over the next decade.

Third, the President references the pending challenge:

The ACA is neither the best nor the only way to ensure that Americans who suffer from pre-existing conditions have access to health-insurance coverage.  I have agreed with the States challenging the ACA, who have won in the Federal district court and court of appeals, that the ACA, as amended, exceeds the power of the Congress.  The ACA was flawed from its inception and should be struck down.  However, access to health insurance despite underlying health conditions should be maintained, even if the Supreme Court invalidates the unconstitutional, and largely harmful, ACA.

Alas, the SG does not argue that the entire law should be struck down. The government’s position is far more nuanced. But the far more important sentence is the last one. Even if the law is “invalidated,” access to pre-existing protections should be maintained. But how? Not through legislation. He is hinting at a future executive action.

No action is taken here. Rather, there is a policy section:

Sec. 2.  Policy.  It has been and will continue to be the policy of the United States to give Americans seeking healthcare more choice, lower costs, and better care and to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.

I think here Trump is giving his administration guidance to prepare. a “safety net” if the Supreme Court takes some action against Guaranteed Issue and Community rating.

Sec. 3.  Giving Americans More Choice in Healthcare.  The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall maintain and build upon existing actions to expand access to and options for affordable healthcare.

Stay tuned. We may even have 9 Justices when the ACA case is argued on November 10.

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Dr. Jo Jorgensen, the Libertarian Party candidate for the presidency, has released a SCOTUS list of “liberty-minded jurists.” You will see many familiar names on the list:

Richard Epstein is a law professor and director of the Classical Liberal Institute at New York University. A study published in The Journal of Legal Studies identified him as the 12th most often-cited legal scholar of the 20th century.  He is known for his prolific writings on subjects pertaining to law, economics, classical liberalism, and libertarianism.

Judge Andrew Napolitano was a New Jersey Superior Court judge and hosted the daily TV talk show Freedom Watch on Fox Business News. He is a syndicated columnist published in Reason, The Washington Times and elsewhere and is a frequent commentator and news analyst on Fox.

Randy Barnett is on the faculty of the Georgetown University Law Center and a senior fellow at Cato Institute. His eleven published books include Restoring the Lost Constitution: The Presumption of Liberty. He was involved in the legal challenge to Obamacare — National Federation of Independent Businesses v. Sebelius.

Clint Bolick is an associate justice on the Arizona Supreme Court. In 1991 Bolick co-founded the Institute for Justice. In 2007, he became VP of Litigation at the Goldwater Institute where he was a frequent critic of Sheriff Joe Arpaio.

Eugene Volokh has been a UCLA law professor since 1994 and is the originator of the prominent legal blog, the Volokh Conspiracy. He clerked for Judge Alex Kozinski on the 9th Circuit and for Supreme Court Justice Sandra Day O’Connor.

Janice Rogers Brown served as Circuit Judge for the U.S. Court of Appeals for the District of Columbia Circuit and was an associate justice of the California Supreme Court. In a speech to the University of Chicago Law School Federalist Society she said, “Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.”

Dana Berliner is the senior vice president and litigation director at the Institute for Justice. She was co-counsel representing the homeowner in Kelo v. New London, the notorious case where SCOTUS ruled that eminent domain could be used by a city for the sole reason of increasing its property tax base.

Anastasia Boden is a senior attorney at Pacific Legal Foundation specializing in litigating against anti-competitive licensing laws and laws that restrict freedom of speech. She graduated from law school at Georgetown where she was Research Assistant to Professor Randy Barnett.

Timothy Sandefur is the vice president for litigation at the Goldwater Institute and an adjunct scholar at the Cato Institute. He’s the author of numerous books including Frederick Douglas: Self Made Man and The Right to Earn a Living. He argued against Obamacare before the U.S. Supreme Court.

Scott Bullock is President and General Counsel of the Institute for Justice. He was co-counsel in Kelo v. New London.

James Ostrowski has practiced trial and appellate work for more than 35 years. He was an attorney for Ron Paul and is the chief organizer of libertymovement.org. He writes extensively on a variety of topics for the Mises Institute and has published four books, including Progressivism: a Primer on the Idea Destroying America.

Alan Gura was co-counsel for the plaintiff in District of Columbia v. Heller, which upheld the individual right to own a firearm. It was one of two landmark constitutional cases that he argued successfully before the U.S. Supreme Court. The National Law Journal named him one of the “100 Most Influential Lawyers in America.”

Jonathan Turley teaches torts, criminal procedure and constitutional law at George Washington University Law School. He is ranked the 38th most cited public intellectual in a study by Judge Richard Posner. He received the columnist of the year award from the Aspen Institute and The Week for his columns on civil liberties.

Damien Schiff is a senior attorney at Pacific Law Foundation where he successfully argued the precedent-setting property rights case, Sackett v. Environmental Protection Agency when he was 33 years old. He was nominated to the Court of Federal Claims but not confirmed.

Clark Neily was co-counsel for the plaintiff in District of Columbia v. Heller, which upheld the individual right to bear arms. He was a senior attorney at the Institute for Justice before joining the Cato Institute in 2017, where he is Vice President for Criminal Justice overseeing civil asset forfeiture, police accountability, gun rights, overcriminalization and constitutional law.

Alan Dershowitz became the youngest full professor in the history of Harvard Law School at the age of 28. He successfully defended Harry Reems, the actor in Deep Throat, arguing that consumption of pornography was not harmful. He served as defense counsel in numerous high-profile cases, including one against Julian Assange.

Nadine Strossen was the youngest person ever to head the ACLU. She is a staunch First Amendment advocate and a founder of Feminists for Free Expression. Among her books is “Hate: Why We Should Resist It with Free Speech, Not Censorship”.

Jacob Hornberger was Director of Programs for the Foundation for Economic Education and founded the Future of Freedom Foundation where he serves as president  He placed second in the delegate count for the 2020 LP nomination for president.

Don Willett serves on the U.S. Fifth Circuit Court of Appeals and was previously a member of the Supreme Court of Texas. According to the outlet SCOTUSblog, “Willett views the role of judges as protecting individual liberty by striking down laws that infringe on it.” Willett has also been named by President Donald Trump as a potential Supreme Court nominee.

Judge Willett may be the only person on the short list of two presidential candidates. Your move Biden.

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