More from @steve_vladeck

Steve Vladeck

@steve_vladeck

14 Apr

Correcting an earlier tweet: 22 state AGs joined a letter attacking the constitutionality of D.C. statehood:

ago.wv.gov/Documents/DC%2…

One of the letter's arguments would also call into question the constitutionality of *six* of the AGs' states, as well: AL, IN, KS, MS, OH, & OK.

That's because the letter implies that, when a state cedes territory to the federal gov't, the territory can't later become part of a new state without the ceding state's specific consent. Except that each of these 6 states *includes* examples of territory meeting that criteria.

https://twitter.com/steve_vladeck/status/1374358118256275457?s=20

The letter's other argument—that, once Congress fixed the size of the seat of government at 100 square miles, it couldn't reduce it—is belied by the text of the Constitution ("not exceeding 10 miles square") and history (it hasn't been true since 1846):

https://twitter.com/steve_vladeck/status/1374358118256275457?s=20

Read 4 tweets

Steve Vladeck

@steve_vladeck

12 Apr

https://twitter.com/steve_vladeck/status/1380838699605311491

Yesterday, I posted a thread about how Friday's 5-4 #SCOTUS ruling enjoining CA's #COVID restrictions on in-home gatherings is the latest in a major uptick in status quo-altering rulings on the Court's "shadow docket."

Turns out, there's even more to this story.

Here's Part II:

https://twitter.com/steve_vladeck/status/1380838699605311491

The specific relief that the Court granted Friday night is an "injunction pending appeal," which bars the enjoined officers from carrying out the blocked policies until and unless the case is conclusively resolved (in favor of the blocked policy) on the merits. Here's the order:

Such an injunction, which operates directly against government officers and is only available when at least two lower courts have already refused to provide such relief, is *supposed* to be exceedingly rare.

Here's Justice Scalia on the comparison with a stay pending appeal:

Read 11 tweets

Steve Vladeck

@steve_vladeck

10 Apr

#SCOTUS issued another significant ruling on its "shadow docket" late last night, voting 5-4 to block California's #COVID-based restrictions on in-home gatherings insofar as they interfere with religious practice:

supremecourt.gov/opinions/20pdf…

How often is this happening?

A #thread:

As the chart notes, this is (at least) the *19th* time this Term (since 10/5/2020) that the Justices have used such an emergency ruling to alter the status quo—whether by staying a lower-court ruling; lifting a lower-court stay; or, as here, directly enjoining a government actor.

It's also only the *second* time in these 19 cases that the majority chose to write an opinion *for the Court* that provides a rationale for the decision (and the first such opinion in one of these California cases), even if it's a brief one:

Read 8 tweets

Steve Vladeck

@steve_vladeck

8 Apr

New Becket Fund amicus brief in support of emergency injunction against California COVID rules attacks criticisms of #SCOTUS's "shadow docket" as "ivory tower objections" by "academics focused solely on the Supreme Court."

supremecourt.gov/DocketPDF/20/2…

I'll leave to others whether Becket is fairly describing the critics. But it's worth stressing that it's clearly mis-describing the criticisms. The objections aren't to the *existence* of an emergency docket; it goes without saying that every court, including #SCOTUS, needs one.

Rather, the objections are to (1) how often #SCOTUS has used such orders to change the status quo recently; (2) usually *without* any reasoning for the Court; (3) in at least apparent defiance of its own standards for granting such relief; & (4) *sometimes*, with no "emergency."

Read 4 tweets

Steve Vladeck

@steve_vladeck

23 Mar

1. Given all of the chatter on D.C. statehood, I thought I'd post a few quick points about what the Constitution does—and, more importantly, *doesn't*—say about the location and size of the capital.

TL;DR: Admitting (most of) D.C. as a state would be perfectly constitutional.

2. Start with the Constitution itself. Famously, it punts on the location of the capital.

All that Article I says is that Congress will have the power to exclusively regulate the land that becomes "the seat of government of the United States," which must be <= 10 square miles.

3. Critically, the Constitution does not say (1) *where* the capital will be; or (2) whether it must be *exactly* 10 square miles. It deliberately left both of those determinations to Congress.

Enter Alexander Hamilton, the Residence Act of 1790, and "the room where it happens."

Read 11 tweets