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Steve Vladeck Profile picture
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29 Jun, 4 tweets, 2 min read
Writing a piece for @MSNBCDaily on @govkristinoem’s bizarre plan to send privately funded SD National Guard troops to the TX border. Short version: It’s probably legal, but (1) it shouldn’t be (we already have a law for interstate Guard sharing); and (2) it’s a (troubling) stunt.
To the first, the Emergency Management Assistance Compact (EMAC)—to which both SD and TX are parties—specifically contemplates circumstances in which a state could use help from other states’ Nat’l Guard units. That this is privately funded seems to make clear that it ain’t EMAC.
To the second, I wrote last summer about a dangerous precedent of having what are effectively red state armies and blue state armies, even when it’s the federal government requesting assistance.

lawfareblog.com/why-were-out-s…

To me, this is a further step down that slippery slope.
Here’s the piece I mentioned above:

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More from @steve_vladeck

Steve Vladeck Profile picture
21 Jun
A short #thread on why #SCOTUS's Arthrex ruling is a big deal:

A lot of adjudication happens in the Executive Branch. Social Security benefits; immigration claims; patent appeals; etc. And "judges" ("administrative law judges") are usually involved in *resolving* those disputes.
No one thinks these judges are the same as Article III judges (with life tenure and salary protection). But should they be *totally* beholden to their political masters, or should there be at least some modicum of independence insulating their rulings from political interference?
Congress has tried for the latter approach, creating detailed procedures to govern the hiring and firing of administrative law judges — and delineating specific circumstances in which their rulings can be overturned by the Executive Branch (as opposed to by an Article III court).
Read 7 tweets
Steve Vladeck Profile picture
16 Jun
With 17 #SCOTUS decisions in argued cases left, a brief statistical note on the impact of Justice Barrett versus Justice Ginsburg:

So far, there hasn't been a *single* argued case in which Justice Barrett has been part of a 5-4 majority (where the difference could've mattered).
On the "shadow docket," in contrast, there've been at least three rulings where she was in a (publicly) 5-4 majority; one where she was part of a 6-3 majority to summarily reverse (which usually needs six votes); & several where she *might* have been the fifth vote (e.g., Smith).
Two of the three 5-4 rulings (Roman Catholic Diocese & Tandon) are easily among the Court's most significant decisions of the Term thus far.

At least to this point, then, Justice Barrett's impact has been far more publicly visible on the shadow docket than on the merits docket.
Read 5 tweets
Steve Vladeck Profile picture
16 Jun
Yesterday, a Trump-appointed district judge issued a "nationwide" injunction (which I guess are fine now) against the Biden Administration's moratorium on new oil & gas leases on federal land:

ag.state.la.us/Files/Article/…

Hypocrisy aside, what's truly galling is the injury/equities:
Throughout the Trump Administration, #SCOTUS *repeatedly* issued stays of lower-court injunctions based on DOJ's argument that *any* injunction of federal policy not only causes irreparable harm, but that such harm tilts the balance of equities *toward* the federal government.
In other words, the reason why the federal government did so well on the "shadow docket" over the last four years was at least largely because of a subtle but undeniable shift in how #SCOTUS weighed *these two factors* — as I documented in 2019:

harvardlawreview.org/wp-content/upl…
Read 4 tweets
Steve Vladeck Profile picture
9 Jun
1/5: Turley is pulling a real Turley here, so let me be clear about what's actually true.

On June 9, 2020 (this date will matter), @rgoodlaw and I wrote a long @just_security post on the Attorney General's power, in general, to direct military forces in response to civil unrest.
2/5: As *part* of that post, we quoted from and linked to a news story in @thehill reporting—based upon high-level but unnamed DOJ sources—that it was Barr who had ordered the clearing of Lafayette Park.

Our post: justsecurity.org/70672/the-unto…

The Hill piece: thehill.com/homenews/admin…
3/5: One year later, the DOI Inspector General has concluded that Barr was *not* behind that controversial move. So be it. But Turley's tweet is not saying that *The Hill* (and, thus, our reliance on it) *was* wrong; he's saying I've "continued to claim" that it was Barr's doing.
Read 5 tweets
Steve Vladeck Profile picture
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.
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):

Read 4 tweets
Steve Vladeck Profile picture
12 Apr
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:
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

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