Steve Vladeck Profile picture
@KSVesq’s husband; Maddie's, Sydney's, and @RoxannaThePug's dad.
RobinK Profile picture eDo Profile picture Becky Werner Profile picture Jeffrey Rubinoff Profile picture dr roth ⓀⒸ Profile picture 9 added to My Authors
9 Jul 20
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).
Read 2 tweets
29 Jun 20
Second (and *not* last) #SCOTUS decision is in June Medical. Court *strikes down* Louisiana abortion ban.

4-1-4, with Chief Justice Roberts concurring in the judgment:

supremecourt.gov/opinions/19pdf…
Chief Justice Roberts's bottom line:

"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."
Read 3 tweets
24 Jun 20
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:

cadc.uscourts.gov/internet/opini…
Read 3 tweets
22 Jun 20
1. The new defense of Barr's conduct over the weekend is that he was just trying "to find a job for [Jay] Clayton."

There are at least three problems with this effort to whitewash what Barr did and said—all of which suggest that he was, indeed, acting in bad faith.

A #thread:
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.
Read 6 tweets
20 Jun 20
To recap:

1) Berman was appointed under 28 U.S.C. § 546(d).

2) That statute contemplates that he keeps his job until a permanent successor is confirmed by the Senate.

3) 28 U.S.C. § 541(c) says U.S. Attorneys are subject to removal by the President.

So the statutes conflict.
One last point:

Because Berman was appointed under 546(d), even if the President can remove him, he can only be replaced by:

1) Someone nominated by the President & confirmed by the Senate; or

2) Someone *else* appointed by judges under 546(d).

Carpenito is neither of those.
Read 2 tweets
20 Jun 20
The First Circuit has noted that the *President* can remove a U.S. Attorney appointed under 546(d)—although the issue was not squarely presented there:

casetext.com/case/us-v-hila…

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).
Read 3 tweets
20 Jun 20
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). Image
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):

justice.gov/sites/default/…

OLC isn’t a court, of course—and even in its view, Barr couldn’t fire Berman.
Read 5 tweets
9 Jun 20
According to AG Barr, this vague statute—32 U.S.C. § 502(f)—is the source of the President’s authority to use out-of-state National Guard troops *without* federalizing them.

If he’s right, it seems the President—or SecDef—could use such troops at any time for any purpose. Yikes.
Here’s Barr’s letter to Mayor Bowser in which he invokes 32 U.S.C. § 502(f) as the sole basis for requesting out-of-state Guard units to come to D.C.:

Read 3 tweets
2 Jun 20
On Saturday, I did a #thread on the President's power to use the military for domestic law enforcement—incl. the relationship b/w the Insurrection Act and the Posse Comitatus Act:



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:

uscode.house.gov/view.xhtml?pat…
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:
Read 8 tweets
31 May 20
The United States of America has no legal authority to designate *any* domestic entities as “terrorist organizations.”
The process for designating terrorist organizations involves *foreign* terrorist organizations:

law.cornell.edu/uscode/text/8/…
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.
Read 3 tweets
30 May 20
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.

law.cornell.edu/uscode/text/18…

Several statutes *authorize* such use of the military for law enforcement.
Read 12 tweets
21 May 20
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.
Read 5 tweets
29 Apr 20
I don't mean to cause trouble, but I think these headlines are getting it wrong.

Nothing in the text of the Order claims any power to force plants to "stay open," and nothing in the statutory sections on which the Order purports to rely delegates such authority.

Here's why:
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.

law.cornell.edu/uscode/text/50…
Read 6 tweets
23 Apr 20
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.
Read 2 tweets
15 Apr 20
Article II of the Constitution gives the President the power to adjourn Congress if—and only if—the House and Senate cannot agree on a date for ending the current session.

But they have agreed—January 3, 2021.

There’s a reason why this power has *never* been exercised before.
In the old days, congressional sessions did not run all the way to the end of each Congress—so it was possible that the House and Senate would disagree about a specific adjournment date.

Today, though, the second session runs right to the end of the Congress—noon on January 3.
The Senate could always try to change that. But a motion to adjourn would be subject to cloture—meaning it would need at least 7 D votes.

The majority could get *rid* of cloture by a simple majority, but I have to think this would be a bridge too far for at least 4 R senators.
Read 4 tweets
2 Apr 20
Even with today’s “order,” @realDonaldTrump *still* hasn’t actually used the coercive authority delegated to him in the Defense Production Act.

whitehouse.gov/presidential-a…

Key language is pictured. Note the absence of a specific directive to private parties to take specific steps.
Read 2 tweets
28 Mar 20
Here’s the regulation governing the federal government’s domestic quarantine authority—42 C.F.R. § 70.6:

law.cornell.edu/cfr/text/42/70…

It doesn’t obviously authorize a state-wide federal quarantine—note the focus on quarantining an “individual” who is infected.

But ...

(cont’d)
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.

/end
Read 3 tweets
23 Mar 20
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.
Read 10 tweets
11 Feb 20
Imagine a world in which the Justice Department chose only to prosecute alleged crimes committed by members of the other political party.

Historically, the norm of prosecutorial independence and the political repercussions of violating it kept us out of that world.

But now...?
Here's then-Attorney General Robert Jackson, in his celebrated speech, "The Federal Prosecutor," on why this is such a dangerous road to go down:

roberthjackson.org/wp-content/upl…
Read 2 tweets
29 Jan 20
Not-so-hot-take:

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.
Read 4 tweets
25 Jan 20
The Solicitor General has responded to this #SCOTUS order, which follows up on statements he made at oral argument on Jan. 15:

supremecourt.gov/DocketPDF/18/1…

The long and short of it is ... not good. The SG _did_ misstate the law, but doesn't acknowledge—or apologize for—doing so:
The dispute is over the availability of other remedies _besides_ the ADEA for the kind of claim advanced by the Petitioner in Babb.

Here is the Solicitor General at the oral argument in response to a question from Justice Kavanaugh:

supremecourt.gov/oral_arguments…
In his rebuttal, @lathamwatkins partner Roman Martinez accused the Solicitor General of misrepresenting the law on this point.

This exchange is almost certainly what prompted the Justices to issue the unusual order requesting supplemental briefing on exactly this question...
Read 6 tweets