Category: Judicial Decisions

It is Dangerous to Rely Upon Media Explanations for Legal Issues

“I only know what I read in the newspapers.” That quote, or something like it, is attributed to Will Rogers. Substituting “news media” or “online” for newspapers, it sums up how most of us know what’s going on in the world. You would think, then, that the professional news media would they very hard to be accurate. When it comes to legal basics, at least, they are not succeeding.1

Today’s case in point is Fox News, which yesterday published a story entitled, “Decisions in 14th Amendment cases could impact pending Colorado, Michigan efforts to remove Trump from ballot.” The premise of the article is that the Minnesota Supreme Court’s dismissal of the petition to keep President Trump off the primary ballot and the dismissal of an unrelated action in a federal court in New Hampshire on standing grounds, according to an unnamed “source familiar with the decisions and proceedings,”2 “‘sets precedent,’ which will make it ‘harder and harder to keep Trump off the ballot’ in other states.”

A loss may be a loss, but, if you’re going to talk about precedent, you have to look at the reason for the loss. In Minnesota, as I have previously reported, the court dismissed the petition because there is no Minnesota state law prohibition on the nomination of a candidate who is not eligible for the office. In the New Hampshire case, the federal court ruled that the plaintiff, a very minor Republican candidate for President who has filed 27 pro se lawsuits seeking to keep Trump off the ballot, did not have standing3 to bring the action.4

Neither of these cases got anywhere near the merits of whether section 3 of the Fourteenth Amendment disqualifies Trump from another term. So, unless these precise issues are raised in the Colorado and Michigan cases, these decisions are not even persuasive authority and are simply not precedent.5

Jay Bohn

November 13, 2023

  1. This failure was the subject of a post at the beginning of this year. ↩︎
  2. Unnamed sources usually provide “inside” information to reporters that they (the sources) are not supposed to disclose. Reporters agree not to divulge their identity to protect them from the consequences of the disclosure. Whether the Minnesota and New Hampshire federal decisions constitute “precedent” relates only to information about those proceedings that is publicly available. The unnamed source is therefore just expressing an opinion, and the failure to identify the source does not add to the credibility of the opinion. ↩︎
  3. I have previously written about standing, for example in connection with the student loan cases, and how it makes it difficult to get litigation about Trump’s potential disqualification into federal court. ↩︎
  4. Among other venues, the U.S. District Court for the Southern District of Florida also ruled that Castro did not have standing. Castro’s petition for certiorari before judgment in that case was denied by the U.S. Supreme Court on October 2, 2023. (docket). ↩︎
  5. One of my many issues with media coverage of Trump’s litigation seeking to avoid the reality that he lost the 2020 presidential election was the failure of the media to report why the Trump campaign lost the cases. In many of them it was for the same sort of procedural reasons that the Minnesota and New Hampshire courts ruled against challengers to his 2024 candidacy. ↩︎

Trump Wins First Round in Disqualification Fight

The first court with the merits of the argument that the Fourteenth Amendment disqualifies President Trump from serving again before it punted. This is not the Colorado case where a trial is taking place to determine if the secretary of state must exclude Trump from the primary ballot, but the Minnesota Supreme Court with essentially the same issue. Yesterday afternoon the court dismissed the case. Although the court did not issue a full opinion (one is promised) its order goes into some detail about the reasoning: that as a matter of Minnesota law a political party may nominate a candidate who is not eligible for the office being sought. The dismissal is without prejudice to the claims’ being brought with respect to the general election.

While the decision is at least a temporary win for Trump, it leaves open the possibility that there will be no Republican on the general election ballot in Minnesota.

Kudos to the CNN.com story for including a link to the order.

Jay Bohn

November 9, 2023

Media Coverage of Blankenship Cert Denial Remarkable for Its (Mostly) Lack of Hyperbole

Over time tort law has become reluctant to provide compensation for harms to reputation caused by what people say or print.1 In New Jersey the statute of limitation for a defamation action is just one year from the date of publication. If the alleged defamatory matter is true, well that’s an absolute defense (although it has not always been). And only statements of fact, as opposed to opinion, are actionable.

Since the 1964 case of New York Times Co. v. Sullivan,2 the First Amendment has been interpreted to protect the news media from liability for defamatory falsehoods against public figures unless the statement was made with “actual malice,” either knowledge that the statement was false or reckless disregard as to whether it was true or false. The commercial media understandably view this decision as an important one.

It is not, however, without its critics, one of whom is Supreme Court Justice Clarence Thomas, who has been known to question the correctness of many prior decisions. In McKee v. Cosby, 586 U. S. ___ (2019), Thomas concurred in the denial of certiorari but called for the re-examination of Sullivan. He did the same thing last Tuesday in Blankenship v. NBCUniversal, 601 U. S. __ (2023).

Media reaction has been a bit more subdued than I might have expected. Yes, BNN Breaking, a news website of which I was previously unaware, called the denial of certiorari a “landmark decision” with “far-reaching implications, carving the path for future defamation cases and highlighting the crucial balance between freedom of the press and individual reputation.”3 But much of the other coverage, from, for example, CNN, The Volokh Conspiracy, and even the New York Times itself, has been sober, factual, and accurate.

Jay Bohn

October 16, 2023

  1. The generic term is “defamation,” with “slander” being the more specific term for spoken remarks and “libel” for things printed. ↩︎
  2. I won’t be looking there for informed legal analysis anytime soon. ↩︎

Best Judicial Decisions Rely on Process, Not Policy.

In one of my earliest posts, COVID-19 and Emergency Powers, I said: “Unfortunately, attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.” The same goes for any governmental action where an official’s power to take some action is questioned: “the [insert relevant official or agency] should have the power because the [relevant official or agency] makes better choices than the [whoever we’re opposed to].”

This trust was recently shown in connection with the decision by Judge Robert Kirsch who sits on the U.S. District Court for the District of New Jersey. At issue was the extent to which New Jersey could legislatively prohibit private parties from contracting with the federal government to execute federal policies with which New Jersey disagrees. The specific policy here is the detaining of aliens who enter the country illegally. U.S. Immigration and Customs Enforcement (ICE) does not operate its own detention centers and has relied on both public and private jails to house detainees. Because New Jersey’s present administration opposes such detention, a statute was passed which not only prohibited counties and municipalities from entering into or renewing contracts to house detainees, but also prohibited private prison operators from doing the same.

The operator of the Elizabeth Detention Center filed suit. You see, the U.S. Constitution has this thing called the “Supremacy Clause,” which says that federal law supersedes state law. In fact, a famous early Supreme Court decision,1 overturned a Maryland law which attempted to impede the operation of the Bank of the United States by a special tax.2

In an extensive written opinion, Judge Kirsch overturned the New Jersey law because the prohibition of private prison operators3 from contracting with federal government interfered with federal execution of federal policy.

Besides the opinion itself, I have had the opportunity to read two accounts of the matter. NJ.com predictably gave more ink to Governor Murphy and others who oppose the detention of those whose initial entry into, or continued presence within, this country is contrary to law, but New Jersey Monitor, which actually provided a link to the opinion,4 concentrated more on the ruling itself.

The New Jersey attorney general has promised to appeal, but I see merit in such an effort as the decision was really inevitable.

Jay Bohn

September 4, 2023

  1. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819). ↩︎
  2. The opinion has one of my favorite lines, “The power to tax involves the power to destroy.” ↩︎
  3. The prohibition on municipalities and counties was not challenged and would likely have been upheld because the Tenth Amendment has been interpreted as having an “anti-commandeering” principle which means that the States cannot be compelled to execute federal law. ↩︎
  4. NJ.com also linked to the opinion, but on New Jersey Monitor‘s site as well, as I have. ↩︎

Initial Thoughts on the Affirmative Action Decisions

A week ago the U.S. Supreme Court issued its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (and its companion case, Students for Fair Admissions, Inc. v. University of North Carolina) wherein it held that the schools’ admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. Predictably there has been much wailing and grinding of teeth from those who favor the use of racial quotas to ensure that every governmental organization, college class, or other group “looks like America,” as that is, apparently, a requirement if ours it not to be a racist society.

The various opinions are well over 200 pages in length, and I have not finished reading them, so I will refrain from extensive commentary for the moment. There are however, a few points I want to make:

  • Spots in a class at Harvard and UNC are a limited commodity for which there is a great deal of competition.
  • The two takeaways from the Court’s fractured decision in Regents of University of California v. Bakke, 438 U. S. 265 (1978), were that while a strict quota system reserving a specific number of spots was not permissible, schools could use the applicant’s race as a “plus” factor
  • College admission is a zero-sum game; for every student admitted as a result of the “plus,” another is denied for that reason.
  • The “plus” is thus significant in two ways: it is both important for indivdual decisions and can greatly influence the result.

I am left with the abiding sense that the “plus” as used by these schools is really a quota by another name; they do not want substantially fewer minority applicants than the prior class: each class must “look like America,” so the plus factor is made whatever it has to be to reach that goal.

As a final comment, the individual decision-makers at universities and other institutions that favor affirmative action can do so without being concerned that it will cost them personally — others (today’s young people) are paying. Would their position be different if say tenured professors were discharged to create spots so that the faculty could “look like America”?

Jay Bohn

July 6, 2023

Batting .500 in Supreme Court Decision Prediction

Last November I wrote about the Northern District of Texas’ ruling in Brown v. U.S. Department of Education which found President Biden’s student loan forgiveness plan unlawful. In order reach the point where it could issue a decision on the merits, the court had to conclude that the plaintiffs in that case had standing to bring the suit in the first place, which was a problem other opponents of student loan forgiveness had not been able to overcome. I believed that the Brown plaintiffs also had not established their own standing and it was my expectation that the decision would be reversed on that basis by the Fifth Circuit.

The court of appeals never got the chance to decide the case because the Supreme Court issued a rare writ of certiorari before judgment so that it could review the decision in conjunction with Biden v. Nebraska, a case in which the Eastern District of Missouri had ruled that the six plaintiff states in that matter – Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina – did not have standing but where the Eight Circuit nevertheless issued an injunction against the program pending appeal.

I firmly believed that the Supreme Court would find that neither set of plaintiffs had standing, which would render the student loan forgiveness program unreviewable.

Well, I was half right. Justice Alito wrote a unanimous opinion in Brown which rejected the plaintiffs claim of standing and so vacated the district court’s decision and remanded with directions to dismiss the case.

However, in Biden v. Nebraska the Court (by a vote of 6 to 3) held that Missouri, at least, had standing to bring its challenge. On the merits the Court, by the same vote, ruled that the HEROES Act does not give the Secretary of Education the power to create the broad-based student loan forgiveness program,1 a position with which former House Speaker Nancy Pelosi once noted her agreement.

  1. I have not had the opportunity to read either Brown or Biden v. Nebraska in full (lots of opinions were issued in the last couple of weeks.) ↩︎

Too Much Hyperbole in Reaction to Glacier Northwest Decision

Lately Thursday has become the day that the U.S. Supreme Court announces its opinions as it marches steadily on to decide by July 4 the cases that have been argued this Term. We haven’t gotten to the hard cases yet. A fair number of the decisions issued in the last several weeks have been unanimous or nearly so, at least as to the result.

Take last Thursday for example. Unanimous decisions by Justice Thomas1 and Justice Gorsuch2 and an 8-1 decision by Justice Barrett in Glacier Northwest, Inc. v. Teamsters. The Court’s opinion in Glacier Northwest, however, only commanded the votes of five justices (Barrett was joined by Chief Justice Roberts and Justices Sotomayer, Kagan, and Kavanaugh), with Justices Thomas, Alito, and Gorsuch concurring in the result and Justice Jackson strongly dissenting. Most of the coverage I have seen sides with Jackson and considers the decision to be a disaster for labor unions and the right to strike.3

In Glacier Northwest a concrete company sued the union representing its employees. The complaint alleged4 that the union waited to start a strike of the drivers of the company’s concrete trucks until the trucks had been loaded with concrete for the day’s deliveries. The trucks were left spinning the concrete which, even so, would eventually harden, wasting the concrete itself and severely damaging the trucks. Although the company’s emergency measures were sufficient to unload the concrete and thus prevent damage to the trucks, but it still suffered damage to its property (the hardened, useless concrete) and sued the union in Washington state court.

The union sought dismissal of the complaint by arguing that the application of state tort law to this dispute was preempted by the National Labor Relations Act which grants the National Labor Relations Board primary jurisdiction. It cited San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), which found preemption even where state law and the NLRA only arguably conflict (in other applications preemption is only found in the case of an actual conflict). The trial court agreed with the union, and the Washington Supreme Court affirmed.

The Court’s opinion ruled that, given the undisputed obligation of strikers to take reasonable precautions to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work, the union’s conduct, as alleged in the complaint, failed to satisfy this obligation. Justice Alito (joined by Thomas and Gorsuch) concurred in the result because he believed that the Court had already held that the type of conduct alleged is not protected. Thomas also wrote an opinion concurring the result (which Gorsuch joined) in which he questioned the Garmon preemption rule and suggested that in an appropriate case the Court should “carefully reexamine whether the law supports Garmon’s ‘unusual’ pre-emption regime.”

Jackson was the only justice to dissent. She pointed out that the NLRB’s General Counsel, a presidentially appointed official responsible for initiating unfair labor practice charges, has in fact done so, not against the union but against the company for filing the lawsuit. She asserted that the filing of the complaint by the general counsel implies “that the union’s conduct is at least arguably protected by the NLRA” and that courts “should suspend their examination.” (emphasis added)5

The facts of this case, as least as alleged by the company, are pretty bad for the union. Indeed, unions should be glad the factual allegations are such that the Court was not asked to revisit Garmon preemption. It is by no means clear to me why the preemption analysis should be different for labor relations than other matters where an administrative agency is tasked with implementing federal law.

Jay Bohn

June 8, 2023

  1. See, for example, CBS News: Supreme Court ruling deals another blow to organized labor, NBC News: In blow to unions, Supreme Court rules company can pursue strike damage claim, Vox: The Supreme Court deals another blow to labor unions. I think this reaction is overblown (pun a happy accident). ↩︎
  2. The case had not reached any point where there would have been any factual adjudication, so the plaintiff’s factual allegations are assumed to be true in connection with the defendant’s motion to dismissing invoking the “so what?” defense. ↩︎
  3. Maybe I don’t fully understand Garmon preemption, but it seems to me that if the filing of a complaint by the general counsel is sufficient to establish that the union’s conduct was “arguably” protected, then why should courts merely “suspend” review of that conduct? If the conduct was arguably protected at the time it occurred, does it matter if sometime later the NLRB were to rule that it is not actually protected? ↩︎

Another Good Gorsuch Opinion in Mayorkas Case

In the beginning of the year, I commended any reader’s attention to Justice Gorsuch’s dissenting opinion in Arizona v. Mayorkas, a Supreme Court case involving a challenge to “Title 42” orders. (The specific issue was whether the court of appeals should have allowed several states to intervene in the case; the court had denied the motion.) I said then:

Justice Gorsuch correctly notes that the public health justification for the exclusion orders is no longer in force. “The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it.” But, as Justice Gorsuch concludes, “courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”

The Title 42 orders were premised upon the existence of the COVID-19 emergency, which has now been terminated. As a result, the Supreme Court vacated the order denying intervention and remanded to the court of appeals with directions to dismiss the motion.

Gorsuch issued a statement in which he recounted the “head-spinning” procedural history in detail “because it is so typical . . . [n]ot just as an illustration of the quandaries that can follow when district courts award nationwide relief, . . . [but e]ven more importantly, the history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.” Justice Gorsuch proceeds to criticize the plethora of COVID emergency decrees I have previously discussed. Because I perceive much agreement with what I have said, I naturally find the discussion profound.

Jay Bohn

June 5, 2023

Upcoming Demise of the Waterfront Commission May Be a Good Start

In On the Waterfront (Commission), I wrote about a pending case before the U.S. Supreme Court in which the State of New York was suing the State of New Jersey to compel NJ to remain a party to the compact which created the Waterfront Commission of New York Harbor (the Waterfront Commission). On Tuesday the Supreme Court decided the case, granting New Jersey’s motion for judgment on the pleadings and denying New York’s.

In the end the result was not a surprise as oral argument (transcript | audio) had effectively telegraphed that the Court had many problems with New York’s position. Justice Kavanaugh wrote the Court’s opinion in which all other justices joined.

NJ.com’s initial coverage, “In a big win for N.J., U.S. Supreme Court rules against N.Y. in long fight over waterfront watchdog,” while accurate in its reporting of the decision, throws shade on NJ’s decision to quit the Commission. It asserts that the State Legislature’s action was the result of political pressure from the unions and that “reports showing the continued influence of organized crime and abuses by local unions in hiring practices had been suppressed for political reasons.” The wisdom of NJ’s decision was properly not a factor in the Supreme Court’s decision.

I would not be surprised if the Waterfront Commission had its own share of plum jobs for the politically connected. If there is continuing influence from organized crime and graft and corruption continue to be practiced by the unions, maybe the Waterfront Commission wasn’t up to the task. New Jersey is going to have a special unit of the state police take over supervision of port activities in the state.

Bi- (or multi-) state commissions created by interstate compacts seem to me to be especially susceptible to political abuse. They are not accountable to either/any state that created them and certainly not to the electorate. There will be a tendency to expand their activities beyond, say, mere bridge maintenance to justify their continued existence. They may be given their own ability to raise funds (bridge tolls for example), moving them even further from legislative oversight. They become a source of patronage for the governors who can allocate “spheres of influence” for each other.

A thorough review of all such commissions is in order, with needed reform to follow.

Jay Bohn

April 20, 2023

Axon Case May Get Little Publicity, But Has Many Interesting Features

Last Friday the Supreme Court of the United States issued its decision in Axon Enterprise, Inc. v. Federal Trade Commission (and its companion case, Securities and Exchange Commission v. Cochran). I haven’t seen any news coverage of it, and it is going to be one of those decisions that has little to no public interest. I, however, have found several nuggets worthy of a blog post.

To start with the most basic facts, the Securities and Exchange Commission (SEC) started an enforcement action against Michelle Cochran, a certified public account. The Federal Trade Commission (FTC) started a separate, unrelated enforcement action against Axon. The targets of both actions sought to challenge the legal ability of the agency based upon constitutional claims((Neither the merits of the investigations nor of the targets’ challenges thereto were before the Court.)) and did so by filing an action in a United States District Court, based upon 28 U.S.C. § 1331, which provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” The district courts, however, noted that the agencies’ ultimate decisions were subject to some form of judicial review by a United States court of appeals and questioned whether, and ultimately held that, Congress’s establishment of the administrative adjudication((The initial decisions are made by “administrative law judges” (ALJs) appointed by the agency, which can be appealed to the commission itself. Both agencies also have the option to bring their enforcement actions in court.)) followed by judicial review process impliedly displaced the district court’s original jurisdiction. In Axon the Ninth Circuit affirmed, while in Cochran the Fifth Circuit, on en banc review,((Appeals are decided by panels of three judges, but the unsuccessful party can ask that a decision be reconsidered by all active judges in the circuit. Grants of such petitions are rare.)) ultimately reversed. The Supreme Court granted certiorari to review both decisions.

The first interesting bit is that every Justice agreed that Axon and Cochran get to have their challenges adjudicated by the district court and do not have to wait to appeal an adverse agency determination, but they came to this result by somewhat different routes. The Court’s opinion was written by Justice Kagan and joined by all but Justice Gorsuch. This opinion applied a previous case, Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 212 (1994), to identify and apply various factors to determine whether Congress’s creation of a special statutory review scheme for the SEC and FTC precludes district courts from exercising jurisdiction over challenges to agencies’ actions. The ultimate conclusion, for these challenges to these investigations, was that it does not.

Justice Thomas, as he is wont to do, joined the Court’s opinion in full but wrote a concurring opinion to express his thoughts about matters suggested by the issue but that did not have to be decided to resolve the case, here his “grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end.”((I raised similar concerns last fall in my post Administrative Agency Should Not Be Lawgiver, Prosecutor, Judge, Jury, and Executioner.)) As Justice Thomas points out, the commissions overwhelmingly agree with their own agency decisions: “between October 2010 and March 2015, SEC won more than 90% of cases brought before its ALJs as compared to 69% of cases brought before federal courts” while “the FTC has not lost a single case [in administrative proceedings] in the past quarter-century.'” [Slip op. at 2, n. 1, quoting Cochran’s brief, bracketed text in Thomas’s opinion.]

Justice Gorsuch concurred in the result. Eschewing “the ‘Thunder Basin factors,’” Justice Gorsuch looks to the language of 28 U.S.C. § 1331, quoted above: “Not may have jurisdiction, but shall. Not some civil actions arising under federal law, but all. The statute is as clear as statutes get, and everyone agrees it encompasses the claims Ms. Cochran and Axon seek to pursue. [citation omitted] End of case, right?”((Add this effort to my list of recommended Gorsuch opinions, Gorsuch’s Buffington Dissent a Well-Written Critique of Chevron Deference and Justice Gorsuch’s Dissent in Arizona v. Mayorkas a Good Read.))

Jay Bohn

April 17, 2023