Among lots of other things, the Chief Justice’s majority opinion in Mazars effectively kills both the Rao dissent in Mazars and the Griffith panel opinion in McGahn.
Congress *can* subpoena the President’s records in appropriate cases, and courts *can* enforce those subpoenas.
But Congress *really* needs to provide for fast-track judicial review in such cases—to prevent this or future Presidents from dragging out the process and potentially mooting such subpoenas (which expire at the end of each Congress).
"The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents."
Worth noting: He dissented from that precedent.
"The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous."
A friendly reminder that any active judge on the D.C. Circuit can ask the full Court of Appeals to vote whether to rehear a panel decision “sua sponte”—that is, even without any party formally petitioning for such an “en banc” rehearing.
The D.C. Circuit currently has 11 active judges, any of whom (including a member of the original panel) is eligible to request a vote to have the full court rehear a panel decision.
It takes a majority—so 6 votes to take a case “en banc.”
And here's a case all the way back from ... September ... in which the two judges in the majority in today's Flynn ruling dissented from the D.C. Circuit's refusal to rehear a different panel decision even though no party had asked it to:
2. First, the Clayton story makes no sense because the Senate still uses blue slips for U.S. Attorneys.
There is a 0.0% chance that both Sen. Schumer and Sen. Gillibrand would've signed off on confirming someone to that job with zero prosecutorial experience—and Barr knows that.
3. Second, Barr's Friday night statement—in his own words—is affirmatively misleading. Leaving aside Carpenito (more on him in a moment), the statement claimed that Berman was "stepping down," even though Barr (1) knew he wasn't; and (2) lacked the power to fire him directly.
So there’s a debate over whether the President can fire Berman, but seeming consensus that Barr can’t.
Finally, I take the point that Berman technically isn't an *acting* U.S. Attorney, and is instead *the* U.S. Attorney under 546. That doesn't change the constitutional analysis (he's still an inferior officer). The statutory question reduces to whether 546(d) overrides 541(c).
Berman is the Acting U.S. Attorney by dint of a *judicial* appointment.
There’s a pretty good argument that, per the plain language of 28 U.S.C. § 546(d), he gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor).
Of course, the Trump DOJ may argue that § 546(d) is unconstitutional insofar as it prevents the President from removing Berman, but that’s complicated here by Berman being an *Acting* U,S. Attorney—over whose appointment and removal Congress can arguably exercise *more* control.
As @marty_lederman points out, there’s a 1979 OLC opinion concluding that the President—but *not* the Attorney General—can fire a U.S. Attorney appointed under § 546(d):
In 2006, Congress tried to update the IA. Here's a #thread on how it went:
1. As I've noted before, the IA is the name for a series of old statutes enacted between 1792–1871. The language that emerged over this process is remarkably vague and open-ended, and leaves the critical factual determinations entirely to the President:
2. More to the point, other than when Title 10 was codified in 1956, the language of the IA hadn't been updated or otherwise amended *since* 1871. After Hurricane Katrina, Congress changed that—rewriting the statute to be much clearer about when it could be used, and for what:
And although some may claim that domestic designation authority comes from section 802 of the 2001 USA PATRIOT Act, that statute creates a *definition* of “domestic terrorism,” but no process for designating domestic organizations or imparting consequences to such a designation.
There's a fair amount of disinformation and misinformation going around about the federal government's legal authority to use troops to help respond to the unrest in Minneapolis.
Here's a short #thread with answers (and citations to authority) for the five big questions:
1. "Isn't the military already on the ground"?
A: Yes, the MN National Guard has been deployed by Gov. Walz. But the Guard wears (at least) two hats. Right now, it's wearing its "state" hat, subject to the control solely of the Governor, which is uncontroversial.
2. "Doesn't the Posse Comitatus Act bar use of federal troops for domestic law enforcement?"
A: No. The PCA only bars such use of the military *without* statutory authorization.
In a new post, @JonathanTurley singles out two of my tweets as proof of the "unhinged interpretations" of the Constitution and federal law that have become common among the President's critics. Unfortunately, he mischaracterizes what I said along the way. A short #thread on how:
Turley's first objection is to the third point in this tweet. He claims I wrote that the suggestion in Trump's tweet *itself* is unconstitutional—even though all I said was that Trump had "threaten[ed] *action* that would itself be unconstitutional."
That's a pretty big distinction. Withholding federal funds in retaliation for a specific electoral practice *would,* in my view, be unconstitutional. That hasn't happened yet—hence my focus on action that *would* be unconstitutional. But that nuance seems to be lost on Turley.
The Order's big move is to designate meat and poultry as "strategic materials" under the Defense Production Act. Fair enough. But all it *authorizes* is for the Secretary of Agriculture to use his authority under DPA § 101.
But DPA § 101 says nothing about forced openings...
Instead, DPA § 101 (50 U.S.C. § 4511) is just about allocation of federal resources and priority for federal contracts. There's no authority under this provision to *force* private businesses to do anything other than prioritize federal contracts.
The #DACA case is now the only undecided case left from #SCOTUS's November sitting, and, after today's decisions, the Chief Justice is the only Justice who hasn't written at least one majority opinion from that session...
To be sure, I'd always *assumed* that the Chief would keep the #DACA opinion for himself. But this seems to all-but confirm it.
It doesn’t obviously authorize a state-wide federal quarantine—note the focus on quarantining an “individual” who is infected.
If quarantining an entire state is the only way the government can prevent those within that state from spreading the disease to those outside, it’s a non-frivolous interpretation of § 70.6(a)(2).
Note, though, how that reading depends upon the absence of less restrictive means.
If we were better prepared for this—or were in a better position to conduct comprehensive surveillance testing—there’d be even less of an argument for this kind of measure. The irony of the slow federal response is how it could help justify *more* restrictive measures now.
1. We're probably going to start hearing about the "Insurrection Act" in the coming days—and the specter of domestic use of the military for law enforcement.
Here's a #thread on what it is, what it isn't, and why we shouldn't necessarily be alarmed that it's being discussed:
2. Its misleading name aside, the Insurrection Act is actually a series of statutes dating all the way back to 1792 through which Congress has given the President the power to "call out" the militia—and, as of 1807, the regular army—during three kinds of domestic emergencies.
3. Two of those emergencies are quintessentially military—invasions and insurrections. But the third is more ambiguous: to "execute the laws of the union." The idea was to be a backstop for circumstances in which civilian authorities were overwhelmed or otherwise unavailable.
The "nationwide injunctions" debate is an analytical mess. The fight isn't over a district court's power to exercise authority outside of its boundaries; it's over whether district courts can bar defendants from engaging in the same conduct against non-parties.
Reasonable people can and will certainly disagree about the circumstances in which district courts ought to be able to bar defendants from acting against non-parties. But that's just as much of an issue within the district court's territorial jurisdiction as it is outside of it.
And in the other direction, it's well-settled that, so long as a district court has jurisdiction over the defendants, it can issue relief to the _plaintiffs_ transcending its borders. Those "nationwide" injunctions are less objectionable because this isn't really about territory.