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Gabriel Malor
@gabrielmalor
, 3 tweets, 1 min read Read on Twitter
Two things. The next big question is whether further review is appropriate, and that takes the form of a request for panel rehearing or en banc rehearing, not an automatic jump to SCOTUS.

It is the role of gov't to defend public officials in the course of their jobs.
The whole "why are they even bothering to defend this?" thing is silly.

Whether public officials incidentally (even accidentally) create public forums by tweeting is an important issue. Of course it should be defended!
Ahem.
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Gabriel Malor
@gabrielmalor
The wrinkle is that the Obama administration litigated all of its ACA cases with the claim that the mandate was a critical piece of the ACA and inseverable. The Trump admin agrees, which puts us in this spot.
(I tend to think that where Congress is silent on severability, the Courts have no obligation to defer to DOJ's claims regarding severability.)
Anyway, my position on this has never changed: Obamacare was bad law, badly made, and badly litigated. Democrats fucked us over bad with it, and Republicans have no obligation to save it.
Read 4 tweets
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Gabriel Malor
@gabrielmalor
The important words for purposes of the non-prosecution deal (this is not a plea deal, c'mon guys, details!) are "in this District."

The deal was good for the Southern District of Florida and nowhere else.
Journalists, you're killin' me.

(1) It was a non-prosecution agreement, not a plea deal.
(2) Double jeopardy is not in play.
(3) Even if double jeopardy were implicated by a non-prosecution agreement (it isn't), the newly-charged conduct is different than the covered conduct.
(This is not that difficult.)
Read 3 tweets
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Gabriel Malor
@gabrielmalor
2d Cir. holds that the "interactive space" on Twitter created when a public official has a public account is a public forum, and that it violates the First Amendment for a public official to deny access to that "interactive space" based on user content. assets.documentcloud.org/documents/6185…
This is a garbage decision. Twitter lacks the features traditionally associated with public forums, which is why this panel and the district court below strains to discover this "interactive space" theory.
I'm skeptical about this interactive space business being a designated public forum because it leaps over the issue that Trump isn't in even primary control over how users can see and interact with that space.

That control lies more with Twitter itself and individual users.
Read 17 tweets

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Josh Blackman
@JoshMBlackman
1/ Running Thread on Dept. of Commerce v. NY #SCOTUS
2/ Roberts's discussion of the Enumeration Clause is, in effect, a discussion of the scope of Congress's implied powers. Taken literally, the Enumeration Clause would only allow the government to assess a headcount--it could not ask any demographics questions.
3/ What provision of the Constitution empowers Congress to ascertain information about demographics? The answer has to be the Necessary and Proper Clause. Yet, as it often does, the Court fails to cite the Necessary and Proper clause in an implied powers case.
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Josh Blackman
@JoshMBlackman
1/ Today Pres. Trump nominated Judge Halil “Sul” Ozerden to fill the Mississippi vacancy on the 5th Circuit. That seat has been empty since the beginning of the Trump administration. whitehouse.gov/presidential-a…
2/ Several conservative commentator have expressed doubts about Judge Ozerden. For example, @JCNSeverino and @kenklukowski suggested that he "he has not demonstrated a commitment to textualist methods of statutory interpretation." nationalreview.com/bench-memos/co…
3/ I haven't studied Judge Ozerden's record at all. In fact, I hadn't heard of him until his name was first mentioned for the position.
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Hugh Hewitt
@hughhewitt
This is a reasonable, “middle” position re the ruling, but the appeals court, if it agrees w/this assessment, will have to explain how he beating heart of Obamacare can be removed but the body live on. Replay the debates of 2009-10: The mandate was the sine non qua of ACA.
If it falls because the Congress removed its constitutional foundation —thus making the mandate an orphan from any and all enumerated powers— severability becomes complicated. The mandate was the load bearing wall of ACA, and Congress repealed the tax which “made” the mandate.
The estimable @jadler1969 and Abbe Gluck argue the 2017 Congress could not have intended this result for if it had, it would have repealed the entire law. nytimes.com/2018/12/15/opi… This ignores that the Congress can be presumed to know (1) it’s own reconciliation rules and
Read 11 tweets
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Chris Geidner
@chrisgeidner
#SCOTUS, Dec. 10, 2018. Orders at 9:30a, with opinions in one or more argued cases expected at 10a.
#SCOTUS grants one new case this morning: Kisor v. Wilkie (18-15), limited to question 1: "Whether the Court should overrule Auer and
Seminole Rock." (This could be big.)
Here's the cert petition: supremecourt.gov/DocketPDF/18/1… / Response:
Read 14 tweets
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Brad Heath
@bradheath
En banc 5th Cir. rules that prosecutors are not required to reveal exculpatory evidence to defendants before they plead guilty.
The case involved an altercation between a jail guard and a 17-year-old who was charged with assault. Four years after he started serving his sentence, a video of the fight "surfaced." A state court declared him actually innocent and freed him. Prosecutors didn't object.
5th Cir.: There is no constitutional right to find out about exculpatory evidence that the government possesses before you plead guilty to a crime.
Read 8 tweets
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Josh Blackman
@JoshMBlackman
1/ Divided 9th Circuit panel finds that 2nd Amendment "Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home"
documentcloud.org/documents/4616… - J O'Scannlain & Ikuta in majority. J Clifton in dissent.
2/ Panel distinguishes Hawaii case from Peruta (San Diego): "Young’s claim therefore picks up where Peruta’s left off and presents an issue of first impression for this circuit: whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense."
3/ Judge Reinhardt has already issued a call for rehearing en banc from the great beyond.
Read 10 tweets

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