Category Archives: Law: Constitutional Law

En Banc Bait

Today the 11th Circuit issued a per curiam decision on Kelvin Leon Jones, et al. v. Governor of Florida, et al., the Amendment 4 felon-voting case, which holds that strict scrutiny applies and that the Florida Legislature’s decision to require felons to pay all the fees and charges associated with their cases is, in the case of indigents, a violation of Equal Protection.

It’s a nicely done opinion but per curiam or not it has got en banc written all over it. The panel was Judge R. Lanier Anderson III (nominated — to the then-5th Circuit — by Jimmy Carter), Judge Stanley Marcus (nominated by Ronald Reagan to the District Court, and by Bill Clinton to the Court of Appeal), and Judge Barbara Rothstein (District Judge, Western District of Washington, sitting by designation; appointed by Jimmy Carter).

All three judges were appointed to their current seats by Democrats, but the 11th Circuit as a whole skews Republican. All three have senior status–I didn’t even know that appellate courts allowed a majority of senior judges on a panel, much less all three. One is a visiting Judge from Washington State (fresh from a visit to Washington, D.C., which may have lead to the incorrect attribution of her home court on the first page of the opinion). All this spells e-n b-a-n-c to me. So we haven’t heard the end of this case yet. That said, the panel’s affirmation of (most of) the injunction might last through to the 2020 election.

Posted in Florida, Law: Constitutional Law | Leave a comment

Bad Claims is the New Trump Litigation Strategy

Post-Mueller, the Trump Family1 has embarked on a novel litigation strategy: bringing really bad claims. Making terrible legal arguments is nothing new for the Trumps, but generally they’ve made those arguments as defendants, often while defending very amateurish and inept attempts to overturn Obama-era regulations. And almost universally, those lost.

Now, however, we see the Trump Family is moving on to offense2, and it’s not pretty: Treasury is setting up to argue it can ignore a quite clear statute requiring the IRS send Congress tax returns. Attorney General Barr, to his shame (if he has any), claims he can dictate to Congressional committees the terms of his appearances. Trump Family companies are suing Democratic House Oversight Committee Chairman Elijah Cummings to block a subpoenas on his finances and suing Deutsche Bank and Capital One to prevent them from complying with subpoenas.

What all these cases have in common is that the legal theories on which they are based are tenuous to non-existent.

What gives? These could simply be Hail Mary passes by the guilty: try this because you have nothing better.  Or they could be plays to delay bad news, maybe even run out the clock until the next election with appeals. Or, worst of all, they could be a cynical calculation that some or all of them might find favor before an increasingly stacked judiciary, and a very pro-Trump Supreme Court.  Or, why not, it could be all of the above.

All of these are bad answers.


  1. I have decided that from now on I will use the Mafia term while blogging, rather than call it an Administration. []
  2. In the legal sense; in every other sense they’ve been there for quite some time. []
Posted in Law: Administrative Law, Law: Constitutional Law, Law: Ethics, Law: Everything Else, Law: The Supremes, The Scandals | Leave a comment

Mandatory Unpaid Labor by Government Workers: Involuntary Servitude? Wages and Hours Violation?

These are probably stupid questions, but I never took Labor Law: Why is it that the U.S. government can require some workers (e.g. TSA) to do their jobs without pay? As a formal legal matter there is no way that the bosses can guarantee back pay will be forthcoming ever, since it’s axiomatic that money can only be disbursed from the Treasury pursuant to a Congressional appropriation. Theoretically, Congress might never vote the back pay.

Doesn’t the absence of a payment guarantee make the forced labor either involuntary servitude, or at least a wage-and-hours violation since it is work for less than the minimum wage (zero)?

I presume the answer to the 13th Amendment question might have something to do with terms in the employment contract, in that the government perhaps reserves the right to require the unpaid labor, or the worker gets fired. Or, more likely, it’s just that civilian workers (but not military personnel, in this case the Coast Guard?) have the choice to just not show up and be fired, as opposed to slavery/involuntary servitude when the worker has no option to quit. That option, I’m guessing, makes the servitude not ‘involuntary’ for 13th Amendment purposes?

But even so, how does this conform with minimum wage laws? Is it as simple as, no one brings the case, then backpay makes the matter moot? In which case, how long before someone files the complaint?

Posted in Law: Constitutional Law, Politics: US | 1 Comment

A Truly Muscular Reply Brief in a Case of Great Importance

One case I’ve been following with great interest is (well, was) Michaels v. Sessions in which by a strange turn of events the Supreme Court is being asked to decide whether
Matthew G. Whitaker is or is not the Attorney General.

The underlying matter isn’t in my wheelhouse, having to do with the constitutionality of a federal ban on possession of firearms by convicted felons. Michaels lost in the court of appeals, and duly asked the Supreme Court to hear his appeal via a petition for writ of certiori. While that was pending, Trump forced out Sessions; whether Sessions legally resigned or was fired is actually a not-irrelevant issue. Trump then tapped Whitaker to take over the job of Attorney General, purporting to exercise power delegated under the Vacancies Act.

The Vacancies act is a mire of constitutional and structural issues, but suffice it for now to say that it does give the President vast authority to fill vacancies with a wide variety of government employees, but it also contains exceptions, one of which very arguably applies to the Attorney General’s office becuase there is a specific statute that provides for succession in the AG’s office. Under that statute Rod Rothstein, the #2 in the department, would automatically becoming the Acting Attorney General until a successor was properly nominated and confirmed (or, I presume, given an interim appointment–an option that the Senate has quietly foreclosed by having pro-forma sessions every few days during the recess thus preventing the Constitutional trigger that permits interim appointments).

When a person sues the United States about a regulation, it is common to caption (that’s lawyer for “title”) the case with the name of the movant and the government official who heads the agency. When there is turnover at the head of an agency, as there often is, it is usually routine for the name of the case to change too — on request of a party, the court just amends the caption of the case.

That is what happened with the petition for certioria — until Michaels’s lawyers objected. Earlier this month they filed a “Motion to Substitute” in the Supreme Court in which they asked the Court to rule that the case should be captioned “Michaels v. Rothstein” rather than “Michaels v. Whittaker” as Rothstein, not Whittaker, was in fact the Acting Attorney General. Needless to say, the government objected. Michael’s lawyers replied with one of the most muscular briefs I’ve ever read. If you are a lawyer or law student, this is a must-read.

The Supreme Court has not yet ruled, and it could do so without a hearing if it chose to do so.

Posted in Law: Administrative Law, Law: Constitutional Law, Law: The Supremes | Leave a comment

“Constitutionally, Matthew Whitaker is a Nobody”

If Neal K. Katyal and George T. Conway III write an op-ed together, you have to figure it’s going to be good.  And oh boy, is it good.

The two dissect the appointment of Matthew Whitaker as acting attorney general of the United States. And they stomp all over it.

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody.

Neal Katyal was an acting solicitor general under President Barack Obama and is a lawyer at Hogan Lovells in Washington. George T. Conway III is a litigator at Wachtell, Lipton, Rosen & Katz in New York. Conway is also a famous spouse and, incidentally, a Yale Law School classmate of mine.

Posted in Law: Constitutional Law, The Scandals | Leave a comment

If Trump Fires Rosenstein, Who’s Mueller’s New Boss?

Marty Lederman has a detailed answer in his (revised) post, Who Might Replace Rod Rosenstein and What Would it Mean for the Mueller and SDNY Investigations?: A Deep Dive.  Worth a read.

Posted in Law: Constitutional Law, The Scandals | Leave a comment