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Mark Joseph Stern Profile picture
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30 Nov, 6 tweets, 3 min read
This is Trump Judge Terry Doughty's second nationwide injunction against a Biden administration policy. He previously blocked Biden's attempt to pause new oil and gas leases on public lands.

Doughty was confirmed unanimously in the Senate, by the way. slate.com/news-and-polit…
The non-delegation has gone from a moribund theory to ubiquitous cudgel against Joe Biden in roughly two years. Trump judges barely even really explain their reasoning anymore—they just scream "non-delegation doctrine" and issue a nationwide injunction. storage.courtlistener.com/recap/gov.usco…
Has anyone checked in with the conservative commentators who railed against nationwide injunctions under Trump?

Why yes, I have, and they are silent. 🙃
slate.com/news-and-polit…
I really can't bear to dig into all the offensively stupid nonsense in this decision, which reads like it was drafted by a high school sophomore (at best) and repeatedly misquotes the opinions it cites, but I do want to highlight this passage, because it is so short and so crazy.
Doughty does not even use the words "due process," or engage in any due process analysis, but then he randomly asserts that unvaccinated workers' "liberty interests" are so strong that the *justify a nationwide injunction.* Come on. This is insulting.
Trump judges are establishing a substantive due process right to remain unvaccinated at the same time that they're dismantling a substantive due process right to reproductive autonomy. It is just total lunacy. storage.courtlistener.com/recap/gov.usco…

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More from @mjs_DC

Mark Joseph Stern Profile picture
2 Dec
Jeffrey Bossert Clark's lawyer writes that "based on our research," the Jan. 6 committee lacks authority to issue depositions. He says the committee is improperly constituted because, among other things, Liz Cheney is no longer a real Republican.
docs.house.gov/meetings/IJ/IJ… Image
Reminder: Clark plotted a coup with Trump to use the Justice Department to overturn the election. slate.com/news-and-polit…

His lawyer says he won't testify about the failed DOJ coup and slams the Jan. 6 committee as a "political monolith" with no legal power to depose him. Image
Clark's chief objection is that the Jan. 6 investigation is "not being conducted in true bipartisan fashion," alleging that Republicans' "ostensible counsel" did not "push back" enough against Democrats. For evidence, he cites a Mollie Hemingway article in the Federalist. Image
Read 4 tweets
Mark Joseph Stern Profile picture
1 Dec
Sotomayor says the sponsors of Mississippi's 15-week abortion ban said "we're doing it because we have new justices."

She asks: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?"
Chief Justice Roberts suggests that the bright-line rule established in Roe and Casey—no total abortion bans before fetal viability—was completely arbitrary. It sounds to me like he is ready to abolish the viability line.
After Sotomayor suggests that overturning Roe would imperil other precedents protecting contraception and gay rights, Barrett asks if the court could overrule Roe in a way that preserves those precedents. Sounds like she's preemptively saying: Roe is dead, but those are safe.
Read 13 tweets
Mark Joseph Stern Profile picture
30 Nov
This dissent from Judge Lawrence VanDyke, a Trump nominee, is pretty shocking. In addition to repeatedly dismissing the threat of mass shootings, he accuses his colleagues of failing to empathize with gun-owners because they're protected by U.S. marshals. cdn.ca9.uscourts.gov/datastore/opin…
VanDyke's dismissive reference to security for his colleagues' " upper-middleclass home[s]" is especially startling in light of the attack on Judge Esther Salas just last year. Her husband and son were shot to death—due, in part, to lack of security. npr.org/2020/11/20/936…
VanDyke also mocks Judge Andrew Hurwitz for pointing out that a fellow judge was killed in a mass shooting, writing that Hurwitz's "personal anecdotes" and "exaggeration of risks" demonstrates that he cannot analyze the Second Amendment in an "objective and detached manner."
Read 6 tweets
Mark Joseph Stern Profile picture
30 Nov
RBG. You've heard her amazing life story. You've seen her face on everything. But what do you know about her jurisprudence, her writing, and her legal legacy? I'm partnering with @chapter_HQ to teach a four-week course on Ruth Bader Ginsburg, the justice. getchapter.app/@mjs/rbg
When talking to law students and non-lawyers alike, I get more questions about RBG than any other justice, hands down. So many people know her as a celebrity but haven't had the opportunity to read—and understand—her opinions. I've designed my course to help change that.
Lots of people think they need a JD to understand the Supreme Court. That's not true! I'll delve into RBG's work as an advocate, as well as her landmark opinions and dissents, with an interactive approach so everyone can grasp the material. I'll also answer questions one-on-one.
Read 4 tweets
Mark Joseph Stern Profile picture
15 Nov
8th Circuit: No qualified immunity for Minneapolis officer who shot a family's two dogs—Ciroc and Rocko, both service animals—for no reason. ecf.ca8.uscourts.gov/opndir/21/11/2… h/t @MikeSacksEsq
In 2016, the Justice Department described an "epidemic" of police officers shooting dogs, estimating that cops kill 25-30 dogs daily in the U.S. qz.com/870601/police-…
In some police forces, a small number of officers are responsible for the vast majority of dog shootings. A vital @cjciaramella investigation found that just *two* Detroit officers had shot more than 100 dogs. reason.com/2016/11/15/the…
Read 6 tweets
Mark Joseph Stern Profile picture
12 Nov
Trump Judge Kyle Duncan tacks on a little advisory opinion suggesting that Congress couldn’t even impose an employer vaccine mandate through legislation. Love the very real and nonpartisan law coming out of the Fifth Circuit these days.
The majority also strongly suggests that a vaccine mandate *explicitly imposed by Congress through new legislation* would also be unconstitutional, so all this hand-waving about OSHA overreach is basically irrelevant.
The upshot is the Fifth Circuit’s opinion is not just “OSHA exceeded its powers,” it’s also “don’t you dare try to impose a vaccine mandate via statute, Congress, because we will block it in a heartbeat.” It’s an advisory opinion cutting off future avenues for vaccine mandates.
Read 5 tweets

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