Month: June 2023

At a congressional hearing last week dedicated to clemency, both sides of the political aisle repeatedly agreed that the U.S. has a “two-tiered system of justice.” But the makeup of that hierarchy is decidedly different depending on who you’re listening to. In Republicans’ telling, it is a system corrupted and fractured by political bias; in Democrats’ view, it is poor people and people of color who are relegated to the bottom.

My response: Yes. Both parties and both positions are, in many ways, correct—which should be the starting point for the conversation about how to improve a clemency process that has been polluted and gone stale in modern times.

The hearing was pinned to the case of Philip Esformes, whose sentence was commuted by former President Donald Trump and who the Department of Justice is now seeking to reprosecute. Esformes was arrested in 2016 and served four and a half years out of a 20-year sentence for money laundering and related charges, with prosecutors alleging he paid doctors under the table to send patients to his nursing and assisted living facilities, where he would charge Medicare and Medicaid for unnecessary services.

But Esformes was already sentenced, and had that sentence commuted, for the charges the DOJ wants to retry. At his first trial, the jury hung on the most significant counts. The judge then explicitly sentenced Esformes for those charges anyway, a little-known practice that is legal in federal court. If a defendant opts for a jury trial and the jury acquits him or declines to deliver a verdict on certain counts, the judge can disregard that conclusion if he or she decides the panel got it wrong.

The use of acquitted, hung, and uncharged conduct at sentencing has elicited rebuke and skepticism from unlikely bedfellows across the political spectrum, from former Supreme Court Justice Ruth Bader Ginsburg to Justice Brett Kavanaugh. This makes Esformes’ story an interesting case study through which to view the discussion around clemency and the justice system in general.

Democrats are typically first in line to argue for a more robust clemency process and fair sentencing practices—both of which are at stake in Esformes’ case.

And yet, it is congressional Democrats making the “tough on crime” argument here, defending Esformes’ reprosecution during the hearing and, in a sense, seeking to reverse the previous administration’s clemency grant. One wonders how this would play out had that grant come from a Democratic president, not a Republican one, although the probable answer doesn’t require an active imagination.

The allegations against Esformes are loathsome. And he represents what many Democrats dislike about the justice system, in that wealthy people sometimes get a better fortune. But a party that claims to stand for criminal justice reform cannot only apply that principle to the “right” defendants. The Democrats’ stance last week likely serves as confirmation to Republicans that this iteration of the DOJ cares more about political football than it does justice.

And while the word “unprecedented” is overused, it is notable that there is genuinely no precedent with which to compare this case. During the hearing, no witness was able to furnish a prior prosecution where someone had been put back on trial after receiving a commutation.

Democrats are correct, though, that there are many poor people and people of color sitting in prison who deserve to have their clemency petitions taken seriously. The two aren’t mutually exclusive, no matter how much certain Republicans and Democrats may paint that picture for the sake of an adversarial narrative. President Joe Biden, a Democrat, could listen to his colleagues in Congress and review more petitions before him instead of waiting for the 11th hour, which has become typical of leaders from both parties.

It is possible to live in a world where we don’t countermand the previous president’s clemency decisions, where we don’t reprosecute people on charges for which they’ve already been sentenced, and where more people receive mercy. A robust clemency process requires all three.

The post He’s Going Back on Trial After Trump Commuted His Sentence. Is That Justice? appeared first on Reason.com.

from Latest https://ift.tt/uF1hHXt
via IFTTT

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Amy Crevola of Corvallis, Oregon, operates a free pantry out of her carport, where she provides clothes, hygiene products, household goods, baby items, and food to those in need. But after the city received a complaint, it sent Amy a letter demanding she comply with the city’s home-business ordinance and convert her carport into a garage. But Amy isn’t running a business—she’s helping those in need, and she has a right to do so. So this week IJ urged the city to take another look at that policy. Learn more here.

• After living in the U.S. for 20 years, marrying a citizen, and fathering an American citizen daughter, Guatemalan man who entered the country illegally at age 14 tries to regularize his status. His visa is denied because he supposedly has connections to a criminal organization even though his record is clean. He seeks judicial review. D.C. Circuit: “Though marriage is a fundamental right, it does not include the right to live in America with one’s spouse,” and anyway it’s enough that the government cited a statute as a basis to deny your visa. Concurrence: That marriage holding seems wrong, but giving a one-sentence justification for the visa decision is sufficient.
• D.C. Circuit: Presidents almost always get to fire executive officials, and that’s true for members of the Council of the Administrative Conference of the United States. (Fed courts aficionados may be more interested in the court’s holding that the plaintiff has standing because, although courts can’t enjoin the president to re-appoint somebody, they can order the president’s subordinates to act as if he had re-appointed them.) Concurrence: One of these days we should resolve what, if anything, is left of Humphrey’s Executor v. United States (1935), which until recently limited this sort of thing.
• What happens if a DEA agent has ample evidence of probable cause to search a car, but the New Hampshire police officer whom the DEA agent directs to actually do the search doesn’t have that evidence? First Circuit: That’s OK, no Fourth Amendment problem.
• Kannapolis, N.C. police respond to a call from a bank, concerned about a white windowless van that had been parked overnight in their lot. When police arrive, they notice legal firearms and explosives, as well as a suitcase in the front seat. Worried that someone may be living in the rapidly heating van, they open it up and discover a half million in cash, more guns, books on making bombs, and drawings of planes crashing into buildings. It turns out the owner was plotting to kill Joe Biden. When the owner shows up, he’s arrested and a search of his phone turns up child pornography, for which he is charged and convicted. Fourth Circuit: Nobody wants unsecured firearms and explosives just sitting around. The search was reasonable.
• And now a case on a topic near and dear to the litigators out there: discovery abuse. Namely, dragging out discovery for two years with incomplete and false discovery responses, here to conceal a web of corporate alter egos in a fraudulent telemarketing scheme. District Court: After many, many forgone opportunities to behave, the appropriate sanction is default judgment for the plaintiff to the tune of $828k. Fourth Circuit: Today we’re going to talk about how we can find out, and how much we can find out, and what it takes to get there.
• This is a sadly typical deliberate-indifference case from the Fifth Circuit. It features an exploding toe.
• The Fifth Circuit reminds us that restrictions on electioneering just have to be reasonable. And a woman wearing a “Houston Fire Fighters” T-shirt to the polls? When there was a ballot proposition about increasing firefighter pay? Democracy can only withstand so much.
• In his 1830 sonnet “The Kraken,” Tennyson wrote “Once by man and angels to be seen, / In roaring he shall rise and on the surface die.” He was describing one of Sidney Powell’s frivolous election-fraud lawsuits and the Sixth Circuit’s affirmance (in part) of sanctions.
• CERCLA, the well-known federal environmental law, requires an energy company to clean up waste from its refineries. But isn’t that really Uncle Sam’s job, asks the company, since the government was super-involved in oil-and-gas production during World War II? Sixth Circuit: No.
• Can a sex-offender subject to lifetime electronic monitoring challenge his conviction when he’s already served his sentence and finished parole? Sixth Circuit: Well, you need to be in custody to seek a writ of habeas corpus, and monitoring isn’t really custody, so no. Dissent: He may not be in prison, but “[l]ifetime electronic monitoring ensures that [his] every movement will be tracked by the state for the rest of his life; that he cannot participate in certain employment or recreational activities; that the state can demand his immediate physical presence at any time; and that one month out of every year of his life will be spent physically tethered to an electrical outlet, charging his monitoring device.”
• Lansing, Mich. cop sees man passed out at the wheel of a running car early in the morning after a blizzard. Without knocking opens the driver’s door to check. Man wakes up. Cop asks for ID. Things escalate quickly and cop finds a whole lot of bags of drugs and a gun. Man: Unreasonable search and the community caretaker exception does not apply. Sixth Circuit: Here’s our chance to detail the long history of police doing stuff other than crime control, going back to 1285. But, yeah, the cop could have just knocked. Evidence suppressed.
• Plaintiff prisoners are members of Christian Identity, an “explicitly racist” faith. Michigan Dept. of Corrections: We’re not going to let you register as a religion. Sixth Circuit (2020): Maybe, but the department has to satisfy strict scrutiny. District court: Which it does. Sixth Circuit (2023): What part of “strict” scrutiny do you not understand?
• Allegation: 15-year-old kid is detained in a privately run juvenile hall. During a 45-minute period in which no staffer saw him—and which violated a contractual requirement with the state to perform “eye-on checks” every 15 minutes—he takes his life. Turns out such violations were not uncommon at the facility. Juvenile hall: We’re not a state actor. District court: I agree, case dismissed. Sixth Circuit: Tell that to the Reconstruction Congress. Reversed and remanded.
• Is Bivens dead and, along with it, hope for holding federal officials accountable to the Constitution? Seventh Circuit: No. Not entirely! Even if we cabin Bivens to its specific facts, this case—in which a plaintiff is suing a narcotics officer for Fourth Amendment violations stemming from a warrantless search, arrest, and unreasonable use of force—is basically identical to Bivens.
• “Basic grammar tells us what the sentence means.” When a court starts an analysis like that you can be sure not everyone will agree on the basic grammar. So it is in this Eighth Circuit case about whether a guy in prison “directed violence” upon another guy—who sold drugs for the guy in prison—by passing the latter’s address to some unsavory characters and followed up with a text stating “am about to [tell] them that [you] don’t want to pay and . . . whatever they do after that is on you.” Concurrence: Basic grammar moves me to say that instead of directing violence he made a credible threat to use violence, also a no-no in the same sentence. Dissent: Basic grammar demonstrates you’re both wrong.
• Gilbert, Ariz.: A group of unidentified men point guns at a man and yank him from his car without warning. It turns out they’re cops. Unreasonable seizure? Ninth Circuit: Thanks to qualified immunity, we don’t have to say. But we really need you to know that we think the plaintiff was being suspicious. Dissent: My colleagues are not viewing the facts in the light most favorable to the plaintiff.
• An alien is not admissible to the United States if he has previously lied about his citizenship status to obtain some benefit under federal or state law, but, says the Ninth Circuit, lying about your citizenship to avoid deportation proceedings isn’t an attempt to obtain a benefit. It’s just plain-old lying, which is totally different.
• Did it violate the Equal Protection Clause for a county’s emergency COVID-19 order to shut down recreational air travel but not non-recreational air travel? No, says the Ninth Circuit, because those different things differ from each other.
• Does an Idaho court have personal jurisdiction over an English company in a case about a plane crash in Indiana that killed someone from Louisiana? Ninth Circuit (over a dissent): That sentence would need at least a couple more “Idahos” in it to create jurisdiction. Case dismissed!
• Under the Federal Tort Claims Act, an officer who “execute[s] searches” is a law enforcement officer and can be sued for assault; TSA agents execute searches (that’s kind of their whole thing); therefore, TSA agents can be sued for assault. Logic, right? District Court: Actually, TSA agents are not law enforcement officers because they do not execute searches because searches can only be executed by law enforcement officers. That’s logic. Ninth Circuit: We prefer the plaintiff’s syllogism. TSA agents do execute searches. So, you can sue them. (IJ filed a brief in the case and argued before the Ninth Circuit as a friend of the court.)
• In McGirt v. Oklahoma (2020), the U.S. Supreme Court threw out the 1997 conviction of Jimcy McGirt for sexual abuse on the grounds that, as an enrolled member of the Seminole Nation on Native American lands, McGirt’s crime could only be tried in tribal or federal court, not state court. Federal prosecutors immediately brought the case to a grand jury, which indicted McGirt, and he was again convicted of sexual abuse based on the same allegations. Tenth Circuit: But the trial court screwed up the jury instructions, allowing them to consider prior inconsistent witness statements only for impeachment and not as substantive evidence. He gets a new trial.
• In a post-McGirt case with facts that are way less icky, a member of the Choctaw Nation files a lawsuit in federal court seeking post-conviction relief against a $150 speeding ticket issued by the City of Tulsa. Tenth Circuit: And his argument is stronger than you might think, but federal district courts don’t have appellate jurisdiction over state-court judgments, so case dismissed.
• You don’t see many plain-error rulings that invalidate triple life sentences, but the Tenth Circuit takes the opportunity to remind us that you really super-duper can’t have one witness testify that she believes other witnesses are telling the truth.
• In which the Federal Circuit clarifies that when it previously said there is an exception to the Takings Clause for exercises of the police power it didn’t mean, like, always.
• And in en banc news, the Fifth Circuit will reconsider its previous ruling that a white public-school student failed to sufficiently allege race-based harassment by claiming (among other things) that a teacher told him his Halloween candy “would be filled with hate and oppression.”

If police seize your property through civil forfeiture, it may be months or years before you get a hearing in front of a judge to challenge that seizure. The result is that many property owners simply give up or are forced into unfair settlement agreements to get back just a fraction of their property. This week, IJ filed an amicus brief in a case before the U.S. Supreme Court urging the court to rule that forfeiture victims have a right to a prompt hearing after police seize their property. Check it out!

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

from Latest https://ift.tt/xmXlQLk
via IFTTT

The California “Safe at Home Confidential Address Program” provides for special forwarding addresses for people who swear that they are “attempting to escape from actual or threatened domestic violence, sexual assault, stalking, human trafficking, or elder or dependent adult abuse,” and need to “establish new names or addresses in order to prevent their assailants or probable assailants from finding them” (and possibly provide some corroborating evidence).

And Cal. Code Civ. Proc. § 367.3, enacted in 2019, adds to that:

A protected person who is a party in a civil proceeding may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the protected person and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the protected person.

Such litigants must confidentially inform the other parties and the court of their true identity, but the identity may not appear in the court records. No showing is required of any specific reason for pseudonymity, beyond the person’s participation in the Safe at Home program.

Does this mean that a person, just by joining the Safe at Home program, may also retroactively reopen his past cases, and then get them sealed or pseudonymized? Several recent federal decisions, all apparently involving one litigant (a self-described “avid blogger on record sealing expungement, and First Amendment issues”), deal with the subject. Here’s the latest judicial response, from Judge Kent Gloria Navarro’s opinion today in Del Nero v. All State Ins. Co. (D. Nev.), to that litigant, who had earlier had some (though mixed) success in his campaign:

Plaintiff is a participant in California’s Safe at Home Program. California’s Safe at Home Program protects crime victims by providing a substitute address that California state and local agencies use for public records. Cal. Gov’t Code § 6207(a). In accordance with the Safe at Home Legislation, the California Code of Civil procedure designates Stay at Home participants as “protected persons,” which allows them to use a pseudonym and redact identifying characteristics when filing court documents. The California Code also authorizes a protected person to seek leave to seal the public file.

In 2000, this case, which involved an alleged breach of contract, was transferred to this Court from the United States District Court for the Central District of California. Twenty-two years later, Plaintiff filed an Ex Parte Motion to Seal, contending that his membership in the Safe at Home Program provided sufficient reason to seal the entire record in this case, or, alternatively, to redact the case and replace his name with a pseudonym. The Magistrate Judge found neither of Plaintiff’s requested forms of relief was warranted, and the Court subsequently adopted the Magistrate Judge’s conclusions. Plaintiff then filed the instant Motion to Seal, which the Court construes as a Motion for Reconsideration….

Plaintiff raises three arguments in his Motion for Reconsideration, presumably to show newly discovered evidence demonstrating that the Court committed clear error and that its Order was manifestly unjust. First, Plaintiff argues California’s Safe at Home Program has been amended to provide broader protections for participants, demonstrating that “California law presumes Plaintiff is endangered.” Second, Plaintiff advances that because other federal courts have either sealed cases brought by him or allowed him to proceed pseudonymously, this Court is compelled to reach the same outcome. Finally, Plaintiff argues he is “under new threats [of danger] as a result of bringing to the attention of authorities Las Vegas attorney [that] Thomas Michaelides forged a court order” in a lawsuit against Plaintiff in state court….

As to Plaintiff’s contention that California’s strengthening of its Safe at Home Program demonstrates that sealing or proceeding pseudonymously is appropriate, his argument ignores the fact that federal law rather than state law applies to this issue. Indeed, the [courts] which have considered this issue are in lockstep that federal law applies. See Doe v. University Accounting Service, LLC, No. 09-cv-01563, 2022 WL 623913, at *2 (S.D. Cal. Mar. 3, 2022); Doe v. Collecto, Inc., No. 2:06-cv-00244, 2021 WL 3199210, at *1 (D. Nev. July 27, 2021); Chaker-Delnero v. Butler & Hailey, No. 2:06-cv-00022, 2021 WL 5510211 at *1 (D. Nev.

Nov. 24, 2021). Plaintiff has presented no reason for the Court to deviate from this conclusion, especially in light of the fact that when this case was active, it only involved questions of Nevada and not California law. Therefore, while the Court takes note of California’s amendment to its Safe at Home Program, this amendment does not alter the Court’s analysis….

Next, Plaintiff argues this Court erred because other federal courts have allowed Plaintiff to either seal actions brought by him or allow him to proceed pseudonymously. Plaintiff is correct that other courts have granted the exact relief he now seeks. However, Plaintiff’s Motion either accidently or intentionally omits that other courts have employed the same analysis as this Court in rejecting his arguments. See Del Nero v. NCO Financial Systems, Inc., No. 2:06-cv-04823, 2021 WL 2375892, at *2 (E.D. Pa. June 20, 2021); Del Nero v. Allstate Ins. Co., No. 00-cv-9068, 2021 WL 3285033, at *2 (C.D. Cal. June 30, 2021); Doe v. Law Offices of Winn and Sims, No. 06-cv-00599, 2021 WL 9917688, at *2 (S.D. Cal. June 21, 2021); Chaker-Delnero, 2023 WL 2861254, at *2. Again, while the Court considers the reasoning of the orders included by Plaintiff, these decisions do not alter the Court’s analysis, especially when considering the underlying argument advanced by Plaintiff remains the same….

Finally, Plaintiff argues he is “under new threats [of danger] as a result of bringing to the attention of authorities Las Vegas attorney [that] Thomas Michaelides forged a court order” in a lawsuit against Plaintiff in state court.

Here, it is unclear to the Court how sealing the docket or the use of a pseudonym would shield Plaintiff from further harassment or harm…. “There is no evidence that Defendants have attempted to retaliate against her because of this lawsuit, but even if they did, ‘the retaliation would not be prevented by allowing Plaintiff to proceed anonymously at this point.” … Plaintiff’s former attorney clearly knows who he is, and his harassment has nothing to do with his involvement in this case. Del Nero v. NCO Financial Systems, Inc., No. 2:06-cv-04823, 2021 WL 2375892, at *2 (E.D. Pa. June 20, 2021). Replacing Plaintiff’s name with a pseudonym “cannot change” the fact that individuals who allegedly wish him harm know his phone number and former address. What the Court can do, and it did do, is redact the personal information that accompany Plaintiff’s filings to otherwise protect his current location….

The post Can California “Safe at Home” Law Be Used to Retroactively Seal or Pseudonymize Past Federal Cases? appeared first on Reason.com.

from Latest https://ift.tt/vJHDpsc
via IFTTT

From Justice Alito’s statement today respecting the denial of certiorari, joined by Justice Thomas, in Thompson v. Henderson (for the opinion this criticizes, see here):

I concur in the denial of certiorari because this case is in an interlocutory posture, and it is not clear whether it presents any “federal issue” that has been “finally decided by the” Washington Supreme Court. Cox Broadcasting Corp. v. Cohn (1975); see 28 U.S.C. §1257. But if the Washington courts understand the decision below to be as sweeping as it appears, review may eventually be required.

This case started as an ordinary tort suit over a car accident. The victim of the accident, plaintiff Janelle Henderson, is black, as was her trial counsel. Alicia Thompson, the defendant, is white, as was her trial counsel. Thompson admitted fault, so the suit was over damages. Henderson claimed that the whiplash she suffered from the accident “seriously exacerbated” her Tourette’s syndrome, and she asked for $3.5 million in damages.

Defense counsel naturally tried to convince the jury that such a large award was not justified, and the jury, which awarded Henderson only $9,200, was apparently persuaded. Henderson moved for a new trial, claiming that the small award was based on racial bias, but the trial court denied the motion without a hearing.

In a remarkable decision, the Washington Supreme Court reversed due to the possibility that the jury’s award was tainted by prejudice, and it remanded for a hearing that appears to have no precedent in American law. In support of its decision, the court cited several statements made by defense counsel in her closing argument. It pointed to defense counsel’s description of Henderson as “quite combative” on the witness stand and her description of Thompson as “intimidated and emotional about the process.” The court found that these comments played on stereotypes about the “‘angry Black woman'” and the “victimhood” of white women.

The court also cited defense counsel’s insinuation that Henderson was motivated by a desire for a financial windfall, as well as her suggestion that Henderson could not have suffered $3.5 million in damages since she had not even mentioned the accident when she saw her doctor a short time thereafter. The court thought that this argument “alluded to racist stereotypes”—that black women are “lazy, deceptive, and greedy” and are “untrustworthy and motivated by the desire to acquire an unearned financial windfall.” The court also faulted defense counsel for suggesting that Henderson’s lay witnesses, all of whom were black, had been prepared or coached because they all used the same phrase—”‘life of the party'”—to describe Henderson’s personality before the accident. The court viewed this tactic as inviting jurors to make decisions about these witnesses “as a group and … based on biases about race and truthfulness.”

Because of these comments by defense counsel, the court found that an objective observer “could conclude that racism was a factor in the verdict,” and it therefore held “that Henderson is entitled to an evidentiary hearing on her new trial motion.” The court added that “[a]t that hearing, the [trial] court must presume racism was a factor in the verdict and Thompson bears the burden of proving it was not.”

The Washington Supreme Court’s decision raises serious and troubling issues of due process and equal protection. In some cases, it will have the practical effect of inhibiting an attorney from engaging in standard and long-accepted trial practices: attempting to undermine the credibility of adverse witnesses, seeking to bolster the credibility of the attorney’s client, raising the possibility of a counterparty’s pecuniary motives, and suggesting that witnesses may have been coached or coordinated their stories. Such tactics are common and have long been viewed as proper features of our adversarial system.

“‘Due process requires that there be an opportunity to present every available defense,'” but the decision below attaches a high price to the use of these run-of-the-mill defenses in cases where parties are of particular races. The Washington Supreme Court endorsed an evidentiary hearing based on the mere “possibility” of bias, and its analysis appears to hold that such litigation strategies per se raise at least the “possibility” of such bias. Moreover, the State Supreme Court’s rule requires the nonmoving party to prove at a hearing not that it did not intend to appeal to racial bias, but that racial bias (perhaps even subconscious bias) had no impact on the jurors. How the Washington Supreme Court thinks this can be done is unclear.

In sum, the opinion below, taken at face value, appears to mean that in any case between a white party and a black party, the attorney for the white party must either operate under special, crippling rules or expect to face an evidentiary hearing at which racism will be presumed and the attorney will bear the burden of somehow proving his or her innocence. It is possible that the Washington Supreme Court will subsequently interpret its brand-new decision more narrowly, but the procedures it appears to set out would raise serious due-process concerns.

The Washington Supreme Court’s opinion is also on a collision course with the Equal Protection Clause, as our recent opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023)), demonstrates. The procedures the state court has imposed appear likely to have the effect of cordoning off otherwise-lawful areas of inquiry and argument solely because of race, violating the central constitutional command that the law must “be the same for the black as for the white; that all persons … shall stand equal before the laws of the States.” The Washington Supreme Court justified its prophylactic rules in part by reasoning that “[r]acism is endemic” in our society, and that “implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State.” But as we reaffirmed in SFFA, the Fourteenth Amendment’s equal-treatment principle yields only when necessary to remediate “specific, identified instances of … discrimination that violat[e] the Constitution or a statute,” not generalized past or ongoing discrimination. The decision of the Washington Supreme Court, however, threatens “to inject racial considerations into every [litigation] decision” parties make. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. (2015).

Nothing in the papers before us suggests that defense counsel would have tried this case differently or that the jury award would have been larger if the races of the plaintiff and defendant had been different. As a result, the decision below, far from combating racism, institutionalizes a variation of that odious practice.

The decision below, like the decision in Roberts v. McDonald, in which I have filed a separate statement, illustrates the danger of departing from the foundational principle that in the United States all people are entitled to “equal justice under law,” as the façade of our building proclaims. Every one of the 330 million inhabitants of our country is a unique individual and must be treated as such by the law. It is not an exaggeration to say that our extraordinarily diverse population will not be able to live and work together harmoniously and productively if we depart from that principle and succumb to the growing tendency in many quarters to divide Americans up by race or ancestry.

The post The Lower Court “Found that [Defense Lawyer’s Comments Played on Stereotypes About the ‘Angry Black Woman'” appeared first on Reason.com.

from Latest https://ift.tt/xBlMKDc
via IFTTT

Today’s Supreme Court decision holding that the Biden Administration’s $400 billion student loan forgiveness plan is illegal, relied in part on the “major questions doctrine.” That’s the controversial rule that requires Congress to “speak clearly when authorizing an [executive branch] agency to exercise powers of vast ‘economic and political significance.'” If the statute isn’t clear, courts must rule against the executive’s claims that it has the authority in question.

Critics have long argued that MQD is contrary to textualism. In her concurring opinion today, Justice Amy Coney Barrett disagrees, and offers a textualist defense of the rule:

The major questions doctrine situates text in context,which is how textualists, like all interpreters, approach the task at hand…..

Context also includes common sense, which is another thing that “goes without saying.” Case reporters and casebooks brim with illustrations of why literalism—the antithesis of context-driven interpretation—falls short….

Why is any of this relevant to the major questions doctrine? Because context is also relevant to interpreting the scope of a delegation….

Think about agency law, which is all about delegations. When an agent acts on behalf of a principal, she “has actual authority to take action designated orimplied in the principal’s manifestations to the agent . . . as the agent reasonably understands [those] manifestations.” Restatement (Third) of Agency §2.02(1) (2005). Whether an agent’s understanding is reasonable depends on “[t]he context in which the principal and agent interact,” including their “[p]rior dealings,” industry “customs and usages,” and”the nature of the principal’s business or the principal’s personal situation.” Id., §2.02….

With that in mind, imagine that a grocer instructs a clerk to “go to the orchard and buy apples for the store.” Though this grant of apple-purchasing authority sounds unqualified, a reasonable clerk would know that there are limits. For example, if the grocer usually keeps 200 apples on hand, the clerk does not have actual authority to buy 1,000—the grocer would have spoken more directly if she meant to authorize such an out-of-the-ordinary purchase.A clerk who disregards context and stretches the words to their fullest will not have a job for long.

This is consistent with how we communicate conversationally. Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….

In my view, the major questions doctrine grows out of these same commonsense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.'” Utility Air, 573 U. S., at 324….

This expectation of clarity is rooted in the basic premise that Congress normally “intends to make major policy decisions itself, not leave those decisions to agencies.” United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 2017) (Kavanaugh, J., dissenting from denial of reh’g en banc). Or, as Justice Breyer once observed, “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters [for agencies] to answer themselves in the course of a statute’s daily administration.” S. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986).

The point Barrett is driving at with her grocer and babysitter examples is that we generally expect clearer and more precise statements of intent when we delegate broad power to an agent than when we delegate relatively narrow authority. And this is consistent with standard textualist interpretive principles emphasizing the need to interpret language in context, and in accordance with ordinary usage.

I advanced a similar textualist defense of MQD here:

[C]ontrary to popular belief, there is in fact a textualist justification for MQD. Most textualists hold that statutory language should be interpreted in accordance with its “ordinary meaning.” And they also recognize that ordinary meaning varies based on context. The same words and phrases might have different meanings depending on the situation…

Such contextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and somewhat dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to “modernize and improve” the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.

As a semantic matter “divorced from context,” the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to “modernize and improve….”

The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to “waive or modify” regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics “divorced from context” suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.

Justice Barrett’s argument seems very similar to mine. Her grocer and babysitter examples even have much in common with my contractor analogy. These are all everyday-life situations where agents clearly exceeded the scope of the authority granted to them, even though their actions might be justified under a more literal approach to textualism that ignores the significance of scale.

I am not suggesting Justice Barrett somehow “stole” this idea from me. I highly doubt she read or knew about the post where I introduced it. Rather, she probably just had the same kind of intuition about context and ordinary meaning (or, in her words, “commonsense principles of communication”), as I did.  The fact we arrived at the same idea independently provides some (very modest) additional support for the point that it is intuitive to expect greater precision in broad grants of authority.

As Barrett recognizes, textualism isn’t the only possible justification for MQD. It can also be defended on the grounds that it helps enforce constitutional constraints on delegation. In addition, the textualist rationale for MQD doesn’t necessarily prove the Supreme Court got any particular application of the doctrine right.

I myself think the Court applied it correctly in today’s decision and the the eviction moratorium and vaccine mandate rulings, but perhaps not in West Virginia v. EPA, where Justice Kagan’s dissent makes a strong argument that the statute did in fact clearly grant the authority the Biden Administration claims.

The post Justice Barrett’s Textualist Defense of the Major Questions Doctrine appeared first on Reason.com.

from Latest https://ift.tt/3yao51u
via IFTTT

From Justice Jackson’s opinion, joined by Justice Sotomayor, dissenting from the denial of certiorari today in Harness v. Watson:

The President of the 1890 Mississippi Constitutional Convention said it plain: “Let us tell the truth if it bursts the bottom of the Universe … We came here to exclude the negro. Nothing short of this will answer.” To further that agenda, the Convention placed nine crimes in §241 of the State’s Constitution as bases for disenfranchisement, believing that more Black people would be convicted of those crimes than White people. See Williams v. Mississippi (1898) (acknowledging that purpose, but expressing “no concern” regarding the Conventioneers’ objective); Ratliff v. Beale (Miss. 1896) (similar); 47 F. 4th (CA5 2022) (per curiam) (en banc) (case below) (recognizing §241’s discriminatory aim).

Eight of those crimes have remained in §241 since 1890, without interruption. Thus, the Convention’s avowed goals continue to be realized via its chosen mechanism: Today (just as in the Convention’s aftermath), thousands of Black Mississippians cannot vote due to §241’s operation. Petitioners brought this legal action to challenge §241’s continued use of the eight crimes as bases for felon disenfranchisement.

The Court of Appeals for the Fifth Circuit properly recognized that, under this Court’s settled precedent, the mere passage of time cannot insulate from constitutional challenge a law that was invidious at its inception. That court could not escape acknowledging the similarities between this case and Hunter v. Underwood (1985) (Rehnquist, J., for the Court), in which this Court unanimously invalidated an Alabama constitutional provision passed in 1901 because its “enactment was motivated by a desire to discriminate against blacks on account of race” and it “continue[d] to th[at] day to have that effect.” But en route to affirming the District Court’s grant of summary judgment against petitioners, the Fifth Circuit proceeded to make two egregious analytical errors that ought to be corrected.

First, it seized upon the idea that §241 had somehow been “reenacted” in full when the citizens of Mississippi twice amended parts of that provision years later. To be sure, later amendments changed bases for disenfranchisement other than the eight at issue here: In 1950, burglary was removed from the list of disenfranchising crimes via the State’s amendment processes, and, in 1968, murder and rape were added via the same processes. But, for federal constitutional purposes, the State never enacted any “new” version of the original eight grounds for disenfranchisement. In 1950, voters could have either removed burglary from §241 or left §241 unchanged. So, too, in 1968—voters could have added murder and rape or left §241 unchanged. No other change to the original list of crimes was ever on offer. Therefore, the same discriminatory list of crimes that the 1890 Constitution’s ratifiers “ma[d]e into law by authoritative act” operates to disenfranchise Mississippians who commit those crimes today. Black’s Law Dictionary 666 (11th ed. 2019) (defining “enact”).

Accordingly, the Fifth Circuit was wrong to believe that the amendments rendered the 1890 Convention’s discriminatory purpose irrelevant and to reject petitioners’ claim on the ground that they could show no discriminatory purpose. Quite to the contrary, here, just as in Hunter, the “remaining crimes” from §241’s pernicious origin still work the very harm the 1890 Convention intended—denying Black Mississippians the vote.

Second, the Fifth Circuit’s alternative holding—that even if §241 is tainted by discriminatory purpose, petitioners have no viable claim because the disenfranchisement provision would have been adopted anyway—was equally misguided. Under our well-established precedents, in order to defeat a challenge to a state law that was motivated by discriminatory purpose, the State bears the burden of showing that “the law would have been enacted without” that purpose. Here, the Fifth Circuit assumed for argument’s sake that petitioners had shown discriminatory purpose, but concluded that the State had discharged its burden because certain legislators and a state task force considered recommending changes to §241’s list of crimes in the 1980s. And the Fifth Circuit held that the State’s burden was satisfied even though that consideration never yielded an actual change to §241.

This alternative holding was infused with the faulty “reenactment” rationale, insofar as the Fifth Circuit assumed, arguendo, “discriminatory intent arising from the 1968 amendment.” Moreover, and even more fundamentally, the Fifth Circuit misread (or misunderstood) this Court’s holdings about the nature of the necessary inquiry. The burden is not to demonstrate a theoretical possibility that any legislature could have adopted the enactment at issue absent discrimination. Rather, courts must assess whether the discriminatory actor (here, the 1890 Convention) “would have” enacted the provision sans the discriminatory intent that was its actual motivation. Hunter; see also Arlington Heights v. Metropolitan Housing Development Corp. (1977) (State’s “burden” is to “establis[h] that the same decision would have resulted” (emphasis added)). And that question cannot possibly be answered by looking to the unconsummated considerations of legislative actors a near century after the enactment.

In sum, I would have granted this petition to correct the Fifth Circuit’s clear and constitutionally momentous errors, and the Court could have done so in a straightforward and narrow (but significant) manner. All that is needed to resolve this dispute is (1) the indisputable fact that §241’s disenfranchisement provisions were adopted for an illicit discriminatory purpose, and (2) the (unusually undeniable) understanding that, far from being subsequently “reenacted,” §241 has persisted, without change—doing the harmful work that it was designed to do—ever since its initial invidious inception.

*   *   *

The other day, this Court declared that the “‘Constitution deals with substance, not shadows,’ and the [constitutional] prohibition against racial discrimination is ‘levelled at the thing, not the name.'” Students for Fair Admissions v. President and Fellows of Harvard College (2023). There are no shadows in §241, only the most toxic of substances.

Thus, the majority’s decision not to take up this matter is doubly unfortunate. We were asked to address this problem 125 years ago in Williams, and declined to do so. And this Court blinks again today. So, at the same time that the Court undertakes to slay other giants, Mississippians can only hope that they will not have to wait another century for a judicial knight-errant. Constitutional wrongs do not right themselves. With its failure to take action, the Court has missed yet another opportunity to learn from its mistakes.

The post “‘We Came Here to Exclude the Negro. Nothing Short of This Will Answer.'” appeared first on Reason.com.

from Latest https://ift.tt/eNY1iV6
via IFTTT