My @IJ colleague Anya and I have an oped in @WSJ today, calling out Congress's Animal-Farm-esque decision to create a special cause of action, NOT subject to qualified immunity, for Senators to sue federal officials.

This Senatorial treat is hidden deep in the shutdown deal.
1/ The provision creates a cause of action to sue the U.S. for the acts of federal employees and explicitly precludes qualified immunity.

That sounds great, right? We want federal accountability at @IJ.

Here's the problem: Congress created this action exclusively for SENATORS.

2/

The Supreme Court has issued its long-awaited ruling in the Alien Enemies Act case, AARP v. Trump.

The Court rules 7-2 that AEA detainees need more notice than was given. So they cannot presently be deported.

Kavanaugh concurs.

Alito and Thomas dissent (as before).

1/
After noting the gamesmanship, SCOTUS explains that the 5th Cir. erred in finding no jurisdiction. There is jurisdiction for emergency appeals when the practical effect of the lower courts is the same as refusing an injunction.

Also, the gov't's notice was insufficient.

2/

🧵Nearly THREE YEARS after @IJ argued the ankle-monitor case Meade v. ETOH, the 5th Cir. issued an unpublished opinion holding that a judge's private, monetary relationship with a private ankle-monitoring company does not "create an unconstitutional risk of judicial bias."

1/
New Orleans judge Paul Bonin ordered defendant's to use a specific ankle-monitoring company: ETOH.

ETOH would send the judge the outstanding bills for the $300 "service."

If defendants didn't pay, the judge would threaten to jail them or refuse to release them from monitoring.

2/

🧵The gov’t is lying to avoid due process.

4/7: In JJG v. Trump, SCOTUS held that the D.C. District Court lacked habeas jurisdiction.

Still, SCOTUS held that Alien Enemy detainees are entitled to notice “in such a manner as will allow them to actually seek habeas relief.”

1/
4/14: AG Bondi promulgated a memo to all federal police.

Directly contradicting SCOTUS, Bondi ordered police to falsely tell all AEA detainees they are “not entitled to a hearing, appeal, or judicial review of the apprehension and removal warrant.”

This memo stayed secret.

2/

The Supreme Court just struck down Boasberg’s TRO in Trump v. JJG - the Alien Enemies Act, case.

The decision is disappointing in its application to people the gov’t already renditioned without due process (and seems to encourages the gov’t to evade judicial review), but… 1/
SCOTUS confirms, contrary to what demagogues like @StephenM and @mrddmia have been screaming, that illegal aliens get due process and that the Alien Enemies Act requires notice and an opportunity to be heard *before* removal. This means habeas in the district of confinement. 2/

Now that I’ve sat with it, I have a broader critique of @ilan_wurman and @RandyEBarnett’s anti-birthright-citizenship theory.

If the citizenship clause is really about allegiance, it seems incredible that the 14th Amendment’s drafters wouldn’t have spelled that out.

Why? 1/3

https://twitter.com/ilyasomin/status/1890884163072323619

Because the 14th Amendment was, of course, passed as a result of the Civil War.

If citizenship turned on allegiance, that would have opened a Pandora’s box of questions pertaining to the citizenship status of, at least, confederate leaders, and, at most, all southerners. 2/3

🧵As we await decisions on the #SCOTUS relists of @IJ’s #WrongHouseRaid cert. petitions, I want to highlight how these cases expose a judicial hypocrisy.

Factually, they’re similar.

SWAT teams raided the wrong house without checking the address.

Legally, they’re distinct. 1/8
Despite the cases involving different statutes (1983 v FTCA), immunities (qualified v sovereign), types of cops (city PD v FBI), circuits (5th v 11th), the outcomes were identical.

Even though SWAT raided the wrong addresses, innocent families were left to bear the costs. 2/8

🧵 @IJ's been fighting hard against #FirstAmendment retaliation - litigating a dozen cases in the past few years. But people don't realize that #SCOTUS has all but killed retaliatory *arrest* claims. It's wild. Let me tell you about it (and our case👇). 1/
ij.org/case/castle-hi… While #SCOTUS is very protective of prior restraint on @USConst_Amend_I and kinda protective of non-arrest retaliation (but see #QualifiedImmunity), it's openly hostile to retaliatory arrest claims. See Nieves v. Bartlett. 2/

#SCOTUS🧵In 2014, police task force members misidentified James King as a criminal and brutally beat him. The officers never identified themselves, so bystanders believed they were witnessing a murder and called 911. Today, @IJ filed cert (for the 2nd time). #AppellateTwitter 1/ Litigation for the past 9 years(!) has been a case study in immunity doctrines, and has already been to the U.S. Supreme Court in Brownback v. King. I'll walk through that, but lets start with James telling his story: 2/

🧵 QUALIFIED IMMUNITY ALERT

In Taylor v. LeBlanc, the 5th Cir. holds it’s clearly established that prisons cannot hold people beyond their release date (more than 2 years in this case).

But the 5th Cir. creates a NEW ELEMENT of #QualifiedImmunity to let the jailer off. Wow. 1/ Normally, there are 2 questions for #QualifiedImmunity:

(1) Is there a constitutional violation? (2) Is it “clearly established”?

The clearly-established test does all the mischief because it requires an earlier decision on similar facts (e.g., pepper spray vs. taser). 2/

🚨Excited to share that @TheOnion has filed the best amicus brief I've ever read in favor of @IJ's cert petition in Novak v. Parma. Novak challenges the 6th Cir's use of #QualifiedImmunity to deny #FreeSpeech protections to a parodist. 1/ @SCOTUSblog
supremecourt.gov/search.aspx?fi… This is the Onion's first amicus brief, and it does a perfect job of showing and telling why parody (like the Facebook posts Anthony Novak published lampooning his local police) is a core #FirstAmendment tool. Anthony was arrested for it. Now the Onion stands with him: 2/

In #QualifiedImmunity news, a 2-1 5th Cir. granted QI to a group of Castle Hills, TX officials who conspired to throw @IJ client and then-72yo Sylvia Gonzalez in jail for exercising her #FirstAmendment rights to speech and petition. #AppellateTwitter
🧵 1/
ca5.uscourts.gov/opinions/pub/2… More specifically, the court held that because there was probable cause for a made-up misdemeanor charge, it did not matter that the mayor, police chief, and others conspired to have Syliva jailed for speaking out. (The decision represents a narrow interpretation of Nieves.) 2/

🧵More on Egbert v. Boule, #FederalImmunity, #PoliceAccountability: @IJ has 2 petitions pending on a similar issue involving *domestic* federal policing: Mohamud v. Weyker & Byrd v. Lamb. SCOTUS has been holding those cases *since Jan.* pending Egbert. 1/

ij.org/case/federal-p… We expect the Court will soon issue orders in Mohamud and Byrd (perhaps Monday), and what it does with them will be telling about what - if anything - is left of Bivens. If you want a little more on our cases, I have talked about them here: 2/

https://twitter.com/pjaicomo/status/1439218647067734018?s=20&t=nWDwtwBGUd4lNjqfO177xw

🧵In Egbert v. Boule today, #SCOTUS has all but overruled Bivens without actually doing so. In effect, the Court has enshrined #FederalImmunity and rights without remedies. To get there, the Court has, again, changed the shifting rules for Bivens . . . 1/

supremecourt.gov/opinions/21pdf… In denying both 1st and 4th A. claims against a CBP agent who shoved down an innkeeper in his driveway and then retaliated against him for complaining, the Court retcons its Bivens jurisprudence and essentially now announces a rational-basis style test for Bivens.

2/

🧵Holy smokes! Conservative 5th Cir. Judge Ho, writes dubitante* in Wearry v. Foster to criticize #QualifiedImmunity, #ProsecutorialImmunity, and #Monell. In Wearry, a prosecutor fabricated evidence to put Foster on death row.

1/4

ca5.uscourts.gov/opinions/pub/2… Judge Ho illustrates the immunity shell game that frequently kills meritorious civil rights claims. And he rightly explains that #ProsecutorialImmunity has no legitimate basis in American law. 2/4

6th Cir. grants #QualifiedImmunity to police who arrested a man for running a parody Facebook page making fun of them. Court declined to decide whether the #FirstAmendment covered the page (ed. it does), merely concluding it was not "clearly established."opn.ca6.uscourts.gov/opinions.pdf/2… The Court also ends on a quote from @bariweiss. (See above.)

🧵Interesting morning. At 10 a.m., #SCOTUS decided Brownback v. King, the @IJ case I argued Nov. 9. The Court gave the gov't a *formal win* by reversing the 6th Cir. on a jurisdictional issue, but a *substantive loss* by declining to end the case. 1/
ij.org/press-release/… As we argued, the most important issue in this case is whether the FTCA's judgment bar can be applied to different claims brought in the same lawsuit. We say no, the gov't says yes. The Supreme Court held that the Sixth Circuit will have to decide that issue first. 2/