When I said everything in the news comes back to Fed Courts, I was not kidding.
The Second Circuit ordered the district court to redo its analysis of whether President Trump had shown good cause for not removing his New York criminal case under § 1442(a) until just prior to sentencing. Trump claims that Trump v. US (the immunity decision) offered a new ground for removal and thus excuses any delay. The case offers a nice summary of § 1442 and § 1455 and how criminal removal works.
For the specifics of the wedding web site case that we discussed as a hypo:
The case is 303 Creative v. Elenis; the Court did not grant cert on standing, although the lower courts did address it (district court dismissed for lack of standing, Tenth Circuit found standing). Richard Re addresses the "she didn't have standing" arguments from the left, explaining why the plaintiff satisfies SBA and why the left's arguments to the contrary might portend an ideological shift on pre-enforcement standing (something we will discuss next week). Re's piece is only 26 pages, so not a heavy read.
Skim the transcript of the argument in Chiles v. Salazar, which we might call Child of 303 Creative and Masterpiece. This is a challenge to a Colorado (again) law prohibiting conversion therapy (a form of therapy designed to convert someone to being straight). The plaintiff is a therapist, although she does not practice conversion therapy. Although the Court did not grant cert on standing, it came up during argument, particularly from Justice Sotomayor and Justice Gorsuch. The question is what the statute means and its scope and whether it might reach therapy not specifically defined as "conversion." Prof. Re describes the arguments over the issues.
From Madeline: The Eleventh Circuit sort-of affirms an injunction barring enforcement of a Florida law restricting ownership of property in the state by Chinese nationals. Plaintiffs challenged three provisions. The district court denied the injunction as to all three on the merits--plaintiffs were unlikely to succeed on the merits. The court of appeals affirmed as to two of the provisions. But as to the third, it found that the injunction should be denied for lack of standing. So the case illustrates the movement between them and how standing prevents courts from touching the constitutional merits, creating more procedural burdens.
One more point: The disposition is arguably phrased incorrectly. The court did not reverse as to the third provision, since it agreed with and affirmed the district court judgment--the injunction should be denied. It did so for a different reason--lack of standing (thus lack of jurisdiction) rather than on the merits.
Further evidence that courts are the least aware of procedural niceties.
Tuesday audio. Double session Monday; no class Tuesday. Judicial Lecture at 12:30 next Wednesday, November 12 in the Large Courtroom; class participation points for attendance.
A few quick clarifications:
• There is no split of authority about standing really being merits. The position is held by an island of three people--Judge Fletcher, Judge Newsom, and me. So every court treats them as separate--you will not find courts going the other way.
• We skipped this for time but it came up after class: Standing is grounded in Article III, which applies to federal courts. State courts can have their own standing rules, which can be broader than what works in Article III. That is why Texas could allow "any person" to sue over a post-heartbeat abortion--Texas courts can develop standing rules that allow anyone with a statutory cause of action to sue. California's consumer fraud laws were similarly broad pre-2004: Any person could sue over a false statement that a company makes; thus any random person could sue Nike when it (allegedly falsely) denied using child labor.
But this raises a potentially interesting question: What happens if a federal issue arises in a case that could not be brought in federal court with limited standing but can be brought in a state court with broader standing? For example, what if the TransUnion plaintiffs could establish standing in state court? How would we ever get a federal forum for those federal issues? The answer: SCOTUS can review the state court decision--the adverse state court judgment constitutes an injury to the state-court loser, which creates standing for SCOTUS review (even if there would not have been standing in a district court in the first instance).
I hope to get through the rest of Standing in the first session, then move to Mootness/Ripeness either late in session I or in Session II.
Minnesota enacted a law prohibiting businesses from holding mandatory employee meetings; plaintiffs (a group of businesses) sued the Governor, AG, and Commissioner of the State Department of Labor and Industry. The court held that the Governor and Commissioner lack enforcement authority and that the AG had issued a public proclamation disclaiming intent to enforce. But the analysis jumps back-and-forth between EpY and sovereign immunity (the stated basis for dismissal) and standing (the AG intent not to enforce would seem to go to the likelihood-of-enforcement prong in SBA).
From the Eleventh Circuit, compelling Judge Cannon to act on certain long-pending motions (media members seek to intervene and compel release of the special counsel's report) in the Trump documents prosecution.
This is a good example of the courts of appeals using mandamus not to address otherwise-unappealable large matters but to exercise supervisory authority over lower-court judges, ensuring things proceed as they should.
Monday audio. 11th Amendment papers due tomorrow. Double session next Monday. Argument assignments (attorney and judge) due next Monday. I hope 25 % of the class will not be out tomorrow.
Prep the rest of Standing, which will take us through tomorrow and the beginning of next Monday. Think about the policies or principles supporting Standing and whether they justify the doctrine.
Consider the following:
Missouri law prohibits food companies from labeling or advertising a product as "meat" if it is not derived from animals. Plaintiff is a vegan-food producer that does not use the word "meat" in its labels or marketing. It alleges a First Amendment violation.
Assume the claim will fail. What might be the grounds for that failure?
Mootness/Ripeness should be ready to go next Monday.
Judge Kennelly on the Northern District of Illinois in a challenge to an E.O. prohibiting government contractors from using DEI programs. The plaintiff is a non-profit that conducts DEI trainings. Its stated injury is that the E.O. prevents it from working with companies that may contract with the federal government and so have canceled or will not hold DEI trainings.
The court initially granted a universal injunction prohibiting enforcement of that provision against anyone. Post-CASA, the court reissued the injunction with the same scope. The court explained that complete relief to the plaintiff requires an injunction that will leave it free to contract with anyone who might want its services. That means every company must be free of the limits of the E.O. in order to work with the plaintiff and still seek government contracts.
Read it for yourself. It has some elements of third-party standing (which we will discuss tomorrow) and it involves a First Amendment challenge, which alters standing analysis. But it shows that CASA still leaves courts room to craft broad remedies. Just don't call them universal.
From the Seventh Circuit. The district court issued a TRO limiting ICE use of force around Chicago; she issued a second order requiring the chief of operations in Chicago to appear daily to report on the use of force (and possible violations of the TRO) that day. The Seventh Circuit granted mandamus as to the second order, saying it was too inquisitorial (the court not acting as neutral arbiter between adversarial positions) and infringed on separation of powers.
I will announce this in class on Monday, but I will also post here: Please confer with your opposing counsel to decide who will represent which side (Petitioner--the loser below--listed first). Please confer with your co-justice to decide who will serve as Chief.
I will gather this at the beginning of class on Monday, November 10.
Our final make-up will be 9:30-10:45 on Monday, November 10 in RDB 2007. So no need to change rooms.
Read Noem v. Vasquez Perdomo (challenging ICE's random stops in Los Angeles) and how Kavanaugh's concurrence and Sotomayor's dissent discuss Lyons. You can read the whole if you like, but focus on the discussions of Lyons--pp. 4-5 of Kavanaugh and pp. 13-15 (Part II.A.2) of Sotomayor.
Tuesday audio. Eleventh Amendment papers due next Tuesday.
We continue with Standing: Constitutional Considerations and Taxpayer Standing. We pick up with whether the injuries the plaintiffs suffered in Clapper--loss money, difficulty in communicating--was sufficient for the first prong of standing. Think carefully about the purported foundational principles of standing--why we have this doctrine--and whether they justify it.
