Tag: politics

  • Supreme Court Says FTC Can’t Be Independent

    The Supreme Court ruled today that Federal Trade Commissioners’ statutory independence violates the separation of powers.

    The ruling was not unexpected. It builds on a string of decisions out of the Roberts Court over the last couple decades or so.

    Still, the ruling will likely have dramatic impacts. The logic of the Court’s ruling likely means that dozens of independent federal agencies and offices, touching on all aspects of our daily lives, are unconstitutional, and that the President can remove incumbents at will (meaning: for purely political reasons). In other words: These agencies, designed by Congress to be politically independent, are now fully politicized.

    This is likely even more so under the current President, who has already endorsed and applied an extremely robust version of the unitary executive theory. UET says that the President, as unitary head of the Executive Branch, enjoys plenary authority over its officers, notwithstanding congressionally-designed independence in congressionally-created agencies. (Remember: Congress creates agencies through legislation; it vests them with authority; it funds them; and it oversees them.) Today’s ruling endorses a just-slightly-less robust version of UET. But we can expect that President Trump will use today’s ruling not only to politicize officers within the Executive Branch, but also to politicize civil-service employees, to restructure and dismantle federal agencies, and even to ignore law, including appropriations law, that applies to the Executive Branch. (We can reasonably anticipate this, because this is what he’s already done.)

    In other words, today’s ruling massively increases the President’s power, and massively reduces Congress’s. (It also increases the Court’s power, because, after all, it’s the one that issued the decision).

    But even as today’s ruling allows and invites President Trump to politicize offices and agencies, remember that it will also invite the next Democratic President to do the same. The net effect of the ruling, therefore, could be wild and economically-destabilizing swings in agencies’ enforcement priorities as different Presidents come in and out of office.

    The case, Trump v. Slaughter, arose when President Trump removed FTC Commissioner Rebecca Slaughter without providing a cause or reason. Slaughter claimed that this violated federal law, which says that the President can remove an FTC commissioner only “for inefficiency, neglect of duty, or malfeasance in office.” 15 U.S.C. Sec. 41. That statutory “for cause” removal protection is key to ensuring FTC independence, because it prohibits the President from removing an FTC commissioner at will, or for purely political reasons.

    The Court ruled that the “for cause” removal protection violated the separation of powers. In short, it said that by granting FTC commissioners for-cause removal protection, Congress impermissibly encroached on the power of the President, as unitary head of the Executive Branch, to direct the operations of the Executive Branch and, ultimately, to execute the law.

    The Court said that its ruling was narrow, applying only to the FTC, given the FTC’s significant executive authority under law. But the logic of the opinion almost surely sweeps in other independent agencies and offices, allowing the President to remove officers for purely political reasons. It will also invite the President to extend its reasoning to civil-service employees (who are protected by statutory civil-service laws), agencies themselves, and even the law of the Executive Branch.

    Along the way, the Court also overruled Humphrey’s Executor v. United States, the 1935 case that upheld the independence of the FTC against a similar separation-of-powers argument. That’s significant, because Humphrey’s Executor provided the precedent for multi-member agency independence. It (obviously) no longer does.

    Justice Gorsuch concurred, raising a concern that today’s ruling gives the President all the legislative and judicial powers that Congress has delegated to agencies over time. Justice Gorsuch’s concern is that Congress delegated those powers in the first place, not that the Court’s ruling gives the President sweeping power over previously independent agencies in their law-enforcement capacities.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. In short:

    Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong. The text of the Constitution, along with its history, the longstanding practices of the political branches, and the precedents of this Court, make clear that Congress may limit the causes for which the heads of Commissions like the FTC can be removed by the President. In holding otherwise, the Court gives the President a power unknown even to the English Crown against which the Founders revolted, elevating him above his once-coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws. . . .

    Perhaps worst of all . . . [t]oday’s majority . . . decides that it knows better: better than members of the founding generation who created agencies like the Sinking Fund Commission and the Bank of the United States, free from unfettered Presidential control; better than a century and a half of Congresses and Presidents, starting with Grover Cleveland and continuing into the 21st century, who created agencies in the FTC’s mold; better than even Hamilton, Story, Webster, Holmes, Brandeis, Frankfurter, and Rehnquist. . . .

  • Supreme Court Green-Lights Trump’s Hasty Termination of Temporary Protected Status

    The Supreme Court allowed the Trump Administration to proceed with its hasty termination of temporary protected status for Haitian and Syrians. The ruling means that hundreds of thousands of Haitians and Syrians may not lawfully remain in the United States. At the same time, they cannot safely return to their home countries, both of which the State Department itself says are too dangerous for travel.

    While the ruling is preliminary–allowing the Administration to terminate TPS while the case moves forward on the merits in the lower courts–the practical effect is to end protection for Haitians and Syrians, and to invite to the Administration to hastily end protection for others, too.

    The case, Mullin v. Doe, tested whether the Trump Administration’s termination of TPS for Haitians and Syrians violated federal law and equal protection. (TPS is a program that offers temporary and lawful refuge in the United States for nationals of countries where the conditions are unsafe. The Secretary of Homeland Security first designated Haiti for TPS in 2010, following a devastating earthquake. The Secretary first designated Syria in 2012 because of the brutal and repressive government there. Secretaries have since redesignated the countries based on their dangerous conditions.)

    Plaintiffs brought two claims. First, the plaintiffs argued that the Secretary failed to “consul[t] with appropriate agencies of the Government” and “determine whether the conditions for [TPS] designation . . . continue to be met,” as required by 8 U.S.C. Sec. 1254a(b)(3)(A). The plaintiffs said that a single cursory and perfunctory e-mail exchange between DHS and the State Department–in which State replied simply that there were no foreign policy concerns with terminating TPS for Haiti and Syria–didn’t cut it.

    Next, the Haitian plaintiffs argued that the Administration’s termination was motivated at least in part by race, in violation of equal protection.

    As to the lack-of-consultation claim, the Court ruled that a statutory bar on judicial review prevented the Court from weighing in. 8 U.S.C. Sec. 1254a(b)(5)(A) bars “judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state.” The Court said that “determination” includes not just the final decision to terminate, but also any decision to consult (or not) under Section 1254a(b)(3)(A). As a result, the Court said that courts lack jurisdiction to review the Secretary’s compliance with the consultation requirement (and, by extension, any other procedural requirement leading to the final decision).

    As to the equal protection claim, the Court held that the many racially-tinged statements by the President and the Secretary–the plaintiffs’ principal evidence of racial discrimination–weren’t “overtly racial” and could have merely reflected President Trump’s general opposition to immigration and his particular antipathy to the TPS program. Because these statements didn’t reflect a racial motivation to end protection, the decision didn’t violate equal protection.

    Justice Thomas concurred, arguing that the statutory ban on judicial review covered the plaintiffs’ equal-protection claim (in addition to their statutory failure-to-consult claim) and that in any event “aliens have no equal protection rights against the Federal Government.”

    Justice Kagan wrote a scathing dissent, joined by Justices Sotomayor and Jackson. She argued that the statutory ban on judicial review only applied to the Secretary’s final decision, and not to procedural steps leading to the decision, including the consultation requirement. She noted that the majority’s reasoning effectively strips the statute of its procedural requirements and invites the Administration to ignore them: “the majority’s holding makes everything in the statute precatory, including procedural requisites whose enforcement would seem to fall smack in the middle of the judicial wheelhouse.”

    As to equal protection, Justice Kagan argued that the President’s statements about Haitians reflect a clear racial motivation behind the decision to terminate:

    the Haitian plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. [She recounts them, page 11.] The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.

  • Court Halts Key Portions of Trump’s Elections Executive Order

    Judge Indira Talwani (D. Mass.) ordered the government to halt implementation of key portions of President Trump’s executive order on elections.

    The ruling prevents federal government agencies from compiling a list of eligible voters; it prevents the Postal Service from initiating rulemaking on mail-in ballots; and it halts the government from enforcing certain provisions against states.

    While the ruling is a sharp rebuke, the Trump Administration will surely appeal.

    The case, State of California v. Trump, tests the constitutionality of three portions of President Trump’s EO on “Ensuring Citizenship Verification and Integrity in Federal Elections.” Twenty-three states sued to halt these provisions:

    (1) Section 2 of the EO, which directs the Director of the U.S. Citizenship and Immigration Services, in coordination with the Commissioner of the Social Security Administration, to compile lists of citizens eligible to vote in a specific state, and directs the Department of Homeland Security to transmit these “Confirmed Citizen Lists” to each state at least 60 days before a scheduled federal election;

    Section 3, which directs the Postmaster General to initiate rulemaking regarding “election mail design,” to provide each state with a list of individuals “enrolled with the USPS,” and not to transmit a ballot of any voter who hasn’t been “enrolled”;

    Sections 2 and 5, which describe certain federal criminal offenses and require the Attorney General to prioritize the prosecution of state and local officials who issue ballots to individuals who are not eligible to voter; and

    Section 5, which strongly suggests that states retain voting records for five years.

    The court ruled that the President lacked authority to issue the EO in each of these areas.

    The court started by noting that the Voter Qualifications Clause (for members of the House), the Seventeenth Amendment (for members of the Senate), the Elections Clause, and the Electors Clause all say that states, not the federal government, have default power over federal elections. At the same time, the court acknowledged that Congress has authority to “make or alter” state election laws under the Elections Clause, and that it has done so through several acts, including the Help America Vote Act.

    But the court said that nothing in the Constitution or federal law gave the President the power to issue these orders.

    As to compiling the lists, the court simply held that the President has no power to order this.

    As to USPS regulations, the court said that USPS lacks statutory authority to issue regulations on mail-in voting, and that in any event the EO requires USPS to act on a timeline that’s inconsistent with federal law.

    As to enforcement, the court held that to the extent that the EO attempts to intimidate state and local election officials to use the federally created eligible-voter lists, it’s invalid.

    Finally, as to voting-record retention, the court said that Congress set a twenty-two-month retention requirement, and that the President has no authority to extend it.

  • Second Circuit Vacates Ruling for Schools in Transgender Pronouns Case

    The Second Circuit vacated a lower court ruling that dismissed a parent’s challenge to a school district’s policy of using “the name and pronoun that corresponds to the gender identity the student consistently asserts at school” without requiring notification to the parents.

    The ruling is notable, among other reasons, because it orders the lower court to reconsider how the Supreme Court’s recent emergency-docket ruling in Mirabelli v. Bonta applies. (Emergency-docket rulings, or “shadow-docket” rulings, are preliminary and deal only with the likelihood of success on the merits, not the merits themselves. They therefore lack the full precedential value of a merits ruling. Still, lower courts often treat emergency-docket rulings as precedential, and some on the Supreme Court have suggested that emergency-docket rulings enjoy at least some precedential value.) More on Mirabelli below.

    The case, Vitsaxaki v. Skaneateles Central School District, a non-precedential summary order, arose out of a parent’s challenge to the school district’s policy of recognizing the gender identity of students at school without sharing that gender identity with the parents. A parent sued, arguing that the policy violated the Free Exercise Clause and their substantive-due-process right-to-parent under the Due Process Clause. They sought monetary damages and declaratory relief.

    The court held that the parent lacked standing to claim declaratory relief, because they failed to plead any likelihood of future harm.

    As to the damages claim, the court vacated the lower court’s dismissal and remanded the case to apply Mirabelli. Mirabelli says that a similar policy in California likely violated the Free Exercise Clause and parents’ “primary authority with respect to ‘the upbringing and education of children.’” Pierce v. Society of Sisters (1925).

    Mirabelli says “likely” violated (and not certainly violated), because the case came to the Court as an emergency request to reinstate a lower-court ruling enjoining the law (and not on the Court’s regular merits docket). As a result, Mirabelli lacks the same precedential value of a fully-briefed and fully-argued merits-docket ruling. Still, Mirabelli was enough for the Second Circuit to order a remand and order the lower court to consider how it applied to this case.

    Justice Kagan, joined by Justice Jackson, dissented in Mirabelli and argued why the Court jumped the gun in that case.

    The Second Circuit ruling leaves the school policy in limbo. On the one hand, the court didn’t formally enjoin or strike the policy, or rule the policy unconstitutional, and nothing in the opinion says that the district can’t continue to enforce the policy. On the other hand, Mirabelli strongly suggests that the policy is likely unconstitutional, and, given how lower courts increasingly treat emergency-docket rulings of the Supreme Court, the lower court may well agree.

  • Supreme Court Strikes Hawaii’s Consent-to-Carry Law

    The Supreme Court today ruled that a Hawaii law that prohibits firearms on private property open to the public without the express and affirmative consent of the property owner violates the Second Amendment.

    The ruling means that gun owners in Hawaii can now carry their weapons into restaurants, stores, gas stations, and more without first obtaining the owner’s consent.

    The case, Wolford v. Lopez, tested Hawaii’s law that prohibits a person from carrying a gun onto private property that’s open to the public without the owner’s permission. The Court applied its historical-tradition test from New York State Rifle & Pistol Ass’n, Inc. v. Bruen and ruled the law unconstitutional.

    The Court said first that Hawaii’s restrictions fall within the plain text of the Second Amendment, and that the law was therefore presumptively unconstitutional.

    The Court then said that Hawaii failed to present an historical analogue. It held that Hawaii’s “spirit of Aloha” can’t override the Second Amendment; that Hawaii’s proffered colonial and early state analogues, which prohibited hunting, weren’t sufficiently similar; and that the state’s other analogues (including an 1865 Louisiana statute depriving Black people of the right to bear arms and enacted as part of that state’s Black Codes) weren’t sufficiently similar and weren’t sufficiently widely adopted.

    Justice Barrett joined the Court but wrote separately to elaborate on the Court’s historical-tradition analysis. Justice Thomas and Gorsuch joined the portion of her opinion where she argued that Black Codes weren’t good analogues. (“It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction.”)

    Justice Jackson, joined by Justice Sotomayor, dissented. She argued that Hawaii’s law “fairly applies a first principle of property law–the right to exclude–and does not harm to the Second Amendment.” But even if the Second Amendment applied, she argued that the Court mis-applied its historical-tradition test.

    Justice Kagan dissented separately and joined the portion of Justice Jackson’s dissent where she showed that Hawaii’s law had sufficient historical analogues.

  • Supreme Court: Gun Prosecution of Casual Marijuana User Violates Second Amendment

    The Supreme Court ruled today that the prosecution of a casual marijuana user for unlawful gun possession violates the Second Amendment.

    The ruling extends Second Amendment rights to a casual marijuana user, but otherwise says little new about the Court’s historical-tradition approach to the Second Amendment.

    The case, United States v. Hemani, arose out of the government’s prosecution of Ali Hemani for knowingly possessing a gun in his home while being an unlawful drug user, in violation of 18 U.S.C. Sec. 922(g)(3). During the investigation, Hemani pointed federal agents to marijuana in his home and told them that he used it about every other day.

    The Court ruled that the prosecution violated the Second Amendment. It applied its historical-tradition approach under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and held that the government couldn’t point to a sufficiently similar historical analog to its prosecution of a person for casual marijuana use.

    In particular, the Court rejected the government’s sweeping theory that the statute validly bans “an individual from possessing a gun from the moment he becomes an unlawful user of any controlled substance and remains in effect until he ceases being one,” regardless of the drug, or the amounts ingested, or the person’s dangerousness, or the reasons the person keeps a gun, or how safely the person keeps the gun. It said that the government’s analogy to historical “habitual drunkard” laws “fails on every metric.”

    According to the Court, the ruling “is narrow.” It doesn’t “address efforts to ban addicts, or those presently intoxicated, from possessing a firearm” or “other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms.” It also doesn’t address federal law that “disarm[s] individuals convicted of felonies.” Finally, it doesn’t address cases where a particular person’s use of marijuana, or any other drug, renders the person dangerous.

    Justice Thomas concurred, adding that Section 922(g)(3) “appears to exceed Congress’s enumerated power to regulate interstate commerce.”

    Justice Jackson concurred, joined by Justice Sotomayor, expressing her view that the Court “veered off course in Bruen.”

  • Supreme Court: No Federal District Court Jurisdiction Over State Court Judgments Subject to Further Review

    The Supreme Court ruled today that federal district courts lack jurisdiction to hear challenges to state-court judgments that are subject to further review in state appellate proceedings. The ruling applies the Rooker-Feldman doctrine to those state-court judgments, and thus limits the power of federal district courts to weigh-in on state-court cases that haven’t fully run their course in the state courts.

    The case, T.M. v. University of Maryland Medical System, arose when T.M. sought to challenge a consent order entered by a state court in federal district court. The consent order was subject to further appellate review in the state court system. (Indeed, T.M. filed an appeal of the order in the state courts.) Yet T.M. sought to challenge it in federal court.

    The Court ruled that the federal court lacked jurisdiction. The Court said that the Rooker-Feldman doctrine, which denies federal district courts jurisdiction over certain state-court decisions that are subject to further review within the state courts, barred the suit. The Court wrote that the Rooker-Feldman doctrine was based on two principles: (1) when plaintiffs seek federal district court review of a state court ruling, “they are seeking an exercise of appellate jurisdiction”; and (2) federal appellate jurisdiction of state-court rulings belongs exclusively to the Supreme Court (and not to lower federal courts). The Court said that the doctrine applied squarely to this case.

    The ruling makes it more difficult for state-court litigants to challenge state-court rulings in federal court. The Court today made clear that they now have to exhaust their appeals through the state courts and only then bring an appeal only to the Supreme Court.

    Justice Barrett dissented, joined by Chief Justice Roberts and Justices Kagan and Gorsuch. Justice Barrett argued that the Rooker-Feldman doctrine only applied to state-court judgments that are not subject to further state-court appeals, most usually state supreme court rulings. She also took aim at the underlying bases for the doctrine.

    Justice Thomas concurred, arguing that there’s an originalist basis for the doctrine.

  • The House Passed a War Powers Resolution. What’s the Constitutional Effect?

    The House yesterday passed a concurrent resolution directing President Trump to remove U.S. armed forces from hostilities with Iran. The measure was introduced by Representative Gregory Meeks (NY) and passed by a 215-208 vote.

    So what does the Constitution have to say about this?

    The action was a concurrent resolution pursuant to Section 5(c) of the War Powers Resolution, at 50 U.S.C. Sec. 1544(c). This provision says that when U.S. forces are engaged outside the United States “without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.”

    But a concurrent resolution passes with only the affirmative votes of the House and the Senate. It need not get the signature (or veto override) of the President, like ordinary legislation.

    As a result, there’s a broad understanding that Section 5(c) amounts to an unconstitutional legislative veto. This goes back to a 1983 Supreme Court case, INS v. Chadha, which held that legislative acts must pass both houses of Congress (bicameralism) and be signed by (or passed over the veto of) the President (presentment). (The Court in Chadha struck a law that allowed either house of Congress to override certain immigration decisions of the Attorney General. Because the override amounted to a legislative act, the Court said that it required bicameralism and presentment. And because it authorized one house of Congress to act alone, it violated those requirements.) Under Chadha, because Section 5(c) is a legislative act, and because it authorizes Congress to act without the President’s signature (or a veto override), it lacks presentment, and it is unconstitutional.

    In the wake of Chahda, Congress added a provision to the War Powers Resolution, 50 U.S.C. Sec. 1546a, that fast-tracks a congressional joint resolution to require the President to remove forces (that is, to do the same thing that Section 5(c) authorizes). The joint resolution, in contrast to the concurrent resolution, requires both houses to pass (bicameralism) and a signature (or veto override) of the President (presentment). A joint resolution therefore satisfies Chadha.

    But President Trump would surely veto a joint resolution. And Congress doesn’t have the votes to override. So a joint resolution compelling the President to remove forces stands no chance of becoming law.

    As a result, neither a concurrent resolution nor a joint resolution compelling the President to remove forces would become law. (Even if they could, there’s probably no legal enforcement mechanism. The courts almost certainly wouldn’t get involved, because such challenges are almost surely a non-justiciable “political question.”)

    But that doesn’t mean that yesterday’s action is meaningless.

    The House’s move to use a concurrent resolution sends a strong political signal to the President. Senate passage would make that signal even stronger.

    In addition to passing War Powers Resolutions (concurrent or joint), Congress has other ways to compel or pressure the President to remove forces. For one, it could withhold funding for the war, or for the military more generally, or for some other, unrelated presidential priority. (Like other legislation, however, this would require the President to sign the measure, or Congress to override a veto.) For another, it could refuse to confirm presidential nominees or refuse to pass legislation on presidential priorities, even in areas unrelated to the war. And for a third, it could engage in meaningful oversight. Among other things.

  • Supreme Court Upholds Alabama Congressional Map, Further Erodes Protections Against Racial Gerrymandering

    The Supreme Court late yesterday allowed Alabama to use a congressional district map that was based on intentional race discrimination, according to an earlier three-judge court decision.

    The ruling almost certainly means that Alabama will have one less Black representative in Congress, and one less Democrat.

    It also means that plaintiffs will have an even tougher time proving illegal racial discrimination in legislative districting going forward–that is, even more difficult than after the Court’s recent ruling in Louisiana v. Calais. In other words, yesterday’s ruling, as a practical matter, all but eliminates racial discrimination claims in legislative districting. That’s because the Court made it yet easier (again, easier even than Calais) for states to evade claims of racial discrimination by simply providing political reasons for their maps, even political reasons that overlap with race. And if states can’t even manage that, they can evade claims by playing the courts.

    To see all this, here’s a brief history of this up-and-down case:

    In 2021, Alabama adopted a new congressional map with just one majority-Black congressional district. A three-judge court ruled that the map violated Section 2 of the Voting Rights Act, because it had a racially discriminatory effect and diluted Black voters’ voting strength. The court ordered the state to adopt a map that included a second district where Black voters could elect a candidate of their choice.

    Alabama appealed to the Supreme Court, arguing that it didn’t have time to implement the lower court’s ruling. (The lower court issued its ruling in January 2022, and Alabama’s primary election was slated for May 2022.) The Court stayed the lower court ruling and allowed Alabama to use the 2021 map (the one with just one majority-Black district).

    The Supreme Court later affirmed the lower court’s ruling (that the 2021 map violated Section 2 of the VRA) and its remedy (to draw a second district where Black voters could elect a candidate of their choice). The Court said that the lower court faithfully applied Court precedent in its ruling and remedy.

    In response, in 2023 Alabama adopted another map, also with just one district where Black voters could elect a candidate of their choice. (In other words, the state thumbed its nose at the Supreme Court ruling.)

    Plaintiffs then challenged the 2023 map, arguing that it violated both Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment. (Although those are related, they are two different, distinct claims.) The district court ruled that the new map violated the VRA. The court instituted a remedial map, drawn without reference to race. This map governed the 2024 election.

    Alabama again appealed to the Supreme Court. While the appeal was pending, the Court decided Callais. Callais revised the test for Section 2 claims under the VRA and made it substantially harder (maybe impossible) for racial minority voters to prove a Section 2 violation. (That’s because Callais now requires plaintiffs to dis-aggregate and account for any state political objective in redistricting–a near impossible feat in the racially-polarized political environments where Section 2 does its work. In other words, after Callais, states can insulate themselves from a Section 2 claim simply by providing political objectives for their gerrymander.)

    But Callais did not change the test for equal protection claims.

    After it issued Callais, the Court vacated the lower-court ruling and remanded the case for reconsideration in light of Callais. Alabama announced that it would use the 2023 map (which, recall, the district court struck as a racial gerrymander) for the upcoming 2026 election. (The governor called a special primary election for August 11 (months later than the regularly scheduled primary) in four of the districts that were affected by all this.)

    On remand, the three-judge district court ruled again that the map violated the VRA. It also ruled that the map was based on intentional racial discrimination in violation of the Equal Protection Clause. (The court said that its earlier decision on intentional racial discrimination was “undisturbed by Callais.” That’s not surprising, because, remember, Callais changed the Section 2 test (for discriminatory effect), not the equal protection test (for discriminatory intent).) It wrote, “[D]espite our searching review of all the evidence before us–much of it directly from the Legislators and Legislature, none of it in dispute–try as we might, we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians’ voting strength and evade the unambiguous requirements of court orders standing in the way.” (Just a quick note on that: Under Supreme Court precedent, without direct evidence of racial discrimination, it’s tough–really tough–to prove that a racial gerrymander is based on intentional racial discrimination.)

    Yesterday, the Supreme Court stayed that ruling. In a brief, shadow-docket opinion, the Court wrote that the district court failed to apply a presumption of good faith to the state’s behavior and failed to apply the new Callais standard.

    Significantly, the Court extended the new Callais standard to the equal protection claim, writing, “And, as to both claims, the District Court’s analysis departed from Callais.” (Recall that Callais revised the standard for Section 2 claims under the VRA. Callais said nothing about equal protection claims like the one at issue in this case.) This shoehorns the new Callais standard into equal protection claims and makes it equally difficult (or impossible) for plaintiffs to challenge a racial gerrymander under the Equal Protection Clause as it now is to challenge a racial gerrymander under the VRA.

    The ruling also validated the state’s efforts to manipulate the courts. Recall that the state previously told the Court that it couldn’t comply with the first district court ruling, because it didn’t have enough time before its scheduled election (from January 2022 to May 2022). Yet the state now says that it can switch from the district court’s earlier remedial map (which the state used in the 2024 elections) to the 2023 map for the 2026 primary elections–on a much tighter timeline. Moreover, recall that the state ignored the Court’s earlier ruling that affirmed the district court’s holding that the 2023 map likely violated the VRA and the district court’s order requiring the state to draw a second majority Black district. The Court’s ruling yesterday validates all this behavior.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. She concluded, “Because I choose to defend the rule of law and the right of all Alabamians to participate equally in democracy, I respectfully dissent.”

  • Court Stops National Park Service from Removing Protestors’ “8647” Flag

    Judge Randolph D. Moss (D.D.C.) issued a temporary restraining order yesterday preventing the National Park Service from revoking the demonstration permit of a protestor or removing the protestor’s flag, which included the numbers “8647.” The court rejected NPS’s arguments that the flag amounted to a true threat or incitement.

    The ruling is temporary, so the court’s assessment goes to the likelihood of success on the merits (and not necessarily the actual success). Still, it’s hard to see how NPS could prevail as the case moves forward.

    The case, Accountability Now USA v. Griess, arose when NPS officers instructed protestors to take down their “8647” flag from their 24/7 protest tent and threatened to revoke their free-speech permit if it reappeared. Accountability Now amended an existing complaint against NPS (for threatening to revoke the permit for other yet other signs that the organization displayed at the site) and sought a TRO.

    The court ruled that Accountability Now was likely to succeed on the merits of their free-speech claim. The court first noted that content-based restrictions on speech, especially political speech, are inherently suspect and generally invalid under the First Amendment. It then rejected NPS’s arguments that the flag represented a “true threat” or “incitement,” two exceptions to the First Amendment’s general prohibition on content-based restrictions on speech.

    “‘True threats’” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black (2003). In assessing whether a statement constitutes a “true threat,” courts look to the entire factual context of the statement. A statement must meet both an objective standard and “a subjective mental-state requirement . . . .” Counterman v. Colorado (2023). As to the subjective standard, a speaker must “consciously disregard[] a substantial and unjustifiable risk that the conduct will cause harm to another.” Id.

    The court said that the overall context of the flag didn’t meet this test. It pointed to a dictionary definition, which said that “86” mostly means “to throw out” or “to get rid of”; the fact that the flag contained no symbol of violence and was part of a months-long demonstration demanding “the impeachment and removal of President Trump”; and the fact that a protestor earlier told an NPS officer that they “want[ed] Trump to live forever” so that he could “rot in jail.”

    “Incitement” is speech “directed [at] producing imminent lawless action and likely to incite or produce such action.” Brandenburg v. Ohio (1969). Like “true threats,” “incitement” also depends on context. It also requires the speaker to have “specific intent, presumably equivalent to purpose or knowledge.” Id.

    The court ruled that the flag didn’t meet this test, either. As with “true threats,” the surrounding context showed that the flag did not constitute “incitement.”