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Exclusive: Short Circuit: A Roundup of Recent Federal Court Decisions



No Pseudonymity in Challenge to Federal Vaccination Mandate

#Short #Circuit #Roundup #Federal #Court #Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, the Supreme Court ruled that Customs and Border Protection officers have de facto absolute immunity from constitutional claims for damages. But the ruling leaves the door open ever so slightly to Fourth Amendment claims against federal officers doing domestic policing unrelated to the border or national security. The fate of a pair of pending IJ cert petitions will shed more light on that. They involve an officer who fabricated a sex-trafficking scheme and had our wholly innocent, then-teenage client imprisoned for several years and another officer who went rogue, tried to shoot our client in the head, and used his authority to have our client detained. Click here to read our just-filed supplemental brief.

  • A federal statute prohibits the FDA from changing the definition of “butter.” Which, say the appellants, means the FDA’s prohibition of the interstate sale of unpasteurized butter is unlawful! D.C. Circuit: It’s still butter, guys. It’s just illegal butter.
  • Environmental group sues the Secretary of Commerce, alleging that government regulations designed to reduce the accidental bycatch of dusky sharks won’t achieve its goals. D.C. Circuit: The agency had sufficient evidence to believe that they would (and, by the way, plaintiff “should be reassured, although assurances are not needed, that we have never used or even owned a rubber stamp, that we have never, ever considered an allegation alone to be a fact, and that we have never credited a ‘supposition’ that was lacking in support”).
  • ATF agents place video camera on utility pole outside suspect’s home, giving them a 24/7 live feed that can be viewed remotely and which they operate for eight months without a warrant. Is that a “search” under the Fourth Amendment? First Circuit, sitting en banc: Three of us say no. And three of us say yes, but the agents can’t be expected to have known that (and no matter that the gov’t didn’t initially raise its good-faith argument below). So the lower court order suppressing the evidence is reversed.
  • Do recent narrow interpretations of Congress’s enforcement power under the Fourteenth Amendment affect older caselaw on the Thirteenth Amendment? No, says the First Circuit, in upholding a Nazi creep’s hate crime conviction. Unlike the Fourteenth, the Thirteenth reaches private conduct, which is a whole different thing.
  • After being convicted of 266 counts for his role in the 1998 bombing of U.S. embassies in Africa—in which 224 people were killed—al Qaeda operative is sentenced to 264 concurrent terms of life imprisonment, to be followed by, among other things, a consecutive 30-year term of imprisonment (for using an explosive device during a crime of violence). Man: In the wake of a 2019 Supreme Court decision, my 30-year sentence is no longer valid. (Or more precisely, the conviction giving rise to it is no longer valid.) Second Circuit: Come back once you’ve served your life sentence and we can talk about the 30-year sentence.
  • Allegation: Though required by state law to report suspected child abuse, several North Carolina public school officials (including the district superintendent) turned a blind eye to an elementary school teacher who, among other things, put an autistic first grader in a trash can, prevented him from getting out, and told him that “if he acted like trash, [she] would treat him like trash.” Fourth Circuit: Concerning and disheartening! But North Carolina law recognizes that officials can’t do their jobs fearlessly, vigorously, and effectively if they have to spend time defending against suits like this; state-law “public official” immunity applies.
  • Bald Head Island, N.C. safety officers get fired after the brass catches wind of their group chat, which included such bangers as a meme that “depicted a man being hit in the face with hot dogs and stated that ‘Jeese’s [sic] [Lieutenant] interview went well.'” But were the officers defamed by public statements that the group chat had resulted in complaints against the officers (which it had not)? Fourth Circuit: Indeed they were.
  • Allegation: In 2017, Mahnomen County, Minn.’s highway engineer lowered the weight limit on some county roads dramatically and, less than an hour later, pulled over trucks belonging to a family-owned construction business that he held a grudge against—while letting every other newly overweight vehicle pass unmolested. Eighth Circuit (2021): No other official has previously been held liable for engaging in a personal vendetta against private citizens in precisely this way. Qualified immunity for the engineer. IJ cert petition (this week): The court skipped over a prerequisite: Before officials can raise qualified immunity as a defense, they must first show they acted within the scope of their authority, and an engineer pretending to be a cop certainly can’t. Click here to learn more.
  • California uses prisoners to fight wildfires. But then when they are released, it holds their criminal records against them and bans those same people from getting full-time jobs as firefighters (by barring them from getting an EMT certification, which is necessary to fight fires full time). Plaintiffs: We’ve demonstrably turned our lives around. The ban is irrational—probably on its face because there are so many crimes that have nothing to do with fitness to be certified as an EMT, but certainly as applied to us. Ninth Circuit: It’s not for judges to second guess what legislatures do. (This is an IJ case.)
  • Immigrants detained solely due to their immigration status and neither charged with, nor convicted of, any crime, allege that the overseers of their private, for-profit detention facilities forced them to perform labor against their will and without adequate compensation in violation of state and federal law. A California district court certifies three plaintiff classes related to the various claims. Ninth Circuit: And all of the classes were appropriately certified.
  • After a Florida lawyer hired by the Phoenix, Ariz. Eparchy of the Byzantine Catholic Church files a lawsuit against the Eparchy’s health benefits plan, three bishops of the church complain that he is greedy and incompetent, resulting in the Pope firing him. He sues the bishops for defamation in Arizona. District Court: No jurisdiction over the out-of-state bishops. Ninth Circuit: They purposefully directed their messages to Arizona, establishing jurisdiction.
  • Denver schoolteacher is beaten to death on New Year’s Day 2000. A then-14-year-old boy with cognitive deficiencies is ultimately convicted of her murder and sentenced to life in prison. Years later, DNA tests on items supposedly tying him to the scene come back not quite supporting that. His conviction is tossed in exchange for his pleading guilty to accessory after the fact, and he’s released. He sues. Detectives: Qualified immunity, plus his claims are barred because he was convicted of accessory. Tenth Circuit: His claims may proceed.
  • Plaintiffs: The Oklahoma dental board’s refusal to grant us specialty licenses violates both antitrust law and the Constitution. Tenth Circuit: They seem downright eager to give them to you now, so your case is moot.
  • The ministerial exception prohibits courts from inquiring into employment disputes between religious bodies and their ministers. But does the collateral order doctrine grant federal appellate courts jurisdiction to consider interlocutory challenges to denials of summary judgment under the ministerial exception? Tenth Circuit: It does not. So the religious school that fired a teacher after he gave a presentation on faith and race will have to proceed to trial. Dissent: Does so. And the undisputed evidence shows that the teacher—also the Director of Student Life (i.e., chaplain)—was employed as a minister at the time he was fired.
  • Woman is hired as director of animal services for Lake County, Fla., which is in the process of changing its animal shelter into a “no kill” shelter. On her way out the door to attend evening classes, the director tells her supervisee to try to find placements for some of the animals. The supervisee instead orders 23 or 24 of the animals euthanized. When this is discovered, the new director is fired, and the sheriff issues a press release blaming the now-former director for the euthanized animals, resulting in her receiving death threats. Eleventh Circuit: No reason to disturb the jury’s $100k defamation award.
  • In 2018, Charlottesville, Va. officials gave a local freelance writer and bestselling novelist an unwelcome surprise: an overdue tax bill. City: The tax code may not list “writers” among the types of businesses who are subject to the business license tax, which generally applies to (and pays for costs associated with) storefront businesses. But there’s a catchall provision at the end that applies. Pay up. Virginia Supreme Court: Nope. If you want to tax someone, the law has to be clear. (This is an IJ case.)
  • The Indiana Constitution gives the governor the power to call a “special session.” It otherwise gives the Indiana legislature the power to “fix[] by law” when it meets. But can the legislature pass a “law” that delegates the ability to call a special session to a smaller “council” of legislators, which would call a special session via a “resolution”? Indiana Supreme Court: No can do, a “law” is a “law,” not a “resolution.” And the Indiana Constitution specifically gives the power to the governor. (For a little more on what this all means, do please check out this effervescent blog post.)

Friends, the right to criticize the government is one of our most fundamental rights. So a pox on East Cleveland, Ohio officials for abusing their authority and retaliating against 74-year-old William Fambrough, an activist and frequent critic of the mayor, police chief, and city law director. Last year, police officers enforced a never-used ordinance and impounded William’s van, part of a series of incidents (that also included multiple police visits to his home) meant to chill his political speech. William used the van to canvass in support of a challenger to the mayor, and the towing caused so much damage that the van was inoperable in the weeks before the election (which the mayor ultimately won). So a pox, we say, and also a lawsuit: This week, IJ filed suit against the city and the officials who ordered and carried out the violation of William’s rights. has the story. Click here to find the complaint.



Exclusive: Without Roe v. Wade, Litigants Look to State Constitutions for Protection of Abortion Rights –




Without Roe v. Wade, Litigants Look to State Constitutions for Protection of Abortion Rights

#Roe #Wade #Litigants #State #Constitutions #Protection #Abortion #Rights

The U.S. Supreme Court ruled last week in Dobbs v. Jackson Women’s Health Organization that the U.S. Constitution does not guarantee a right to abortion. But several state supreme courts have rejected abortion bans as inconsistent with state constitutional provisions, and current litigation over new restrictions seeks to establish more such precedents. Some lawsuits do not claim constitutional protection for abortion rights but instead seek to delay implementation of “trigger” bans designed to take effect after the reversal of Roe v. Wade, the 1973 precedent that the Supreme Court repudiated in Dobbs. Here is a rundown of where things stand.



In 1997, the Alaska Supreme Court unanimously ruled that the state constitution “protects reproductive autonomy, including the right to abortion.” The court cited Article I, Section 22 of the Alaska Constitution, which was adopted in 1972 and says, “The right of the people to privacy is recognized and shall not be infringed.”

The justices concluded that “a woman’s control of her body, and the choice whether or when to bear children, involves the kind of decision-making that is “necessary for…civilized life and ordered liberty.” They added that “our prior decisions support the further conclusion that the right to an abortion is the kind of fundamental right and privilege encompassed within the intention and spirit of Alaska’s constitutional language.”


In 1969, four years before Roe established a constitutional right to abortion, the California Supreme Court ruled that a state law allowing a woman to obtain an abortion only when it is “necessary to preserve her life” was so vague that it violated the right to due process. It said “a definition requiring certainty of death,” as urged by the government, “would work an invalid abridgment of the woman’s constitutional rights,” including “the woman’s rights to life and to choose whether to bear children.”

The justices reasoned that “the fundamental right of the woman to choose whether to bear children follows from the Supreme Court’s and this court’s repeated acknowledgment of a ‘right of privacy’ or ‘liberty’ in matters related to marriage, family, and sex.” They noted that “none of the parties who have filed briefs in this case have disputed the existence of this fundamental right.”



A 1980 amendment to Florida’s constitution explicitly protects the “right of privacy,” saying “every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein.” That right, the Florida Supreme Court ruled in 1989, “is clearly implicated in a woman’s decision of whether or not to continue her pregnancy.”

Emphasizing that the Florida Constitution’s explicit protection of privacy extends further than the provisions on which Roe relied, the justices thought it obvious that Florida’s guarantee encompassed the decision of “whether, when, and how one’s body is to become the vehicle for another human being’s creation.” In fact, they said, “we can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime.” The court ruled that an abortion regulation can pass muster only if it is “the least intrusive means of furthering [a] compelling state interest.”

That precedent could be at risk. Florida’s Republican governor, Ron DeSantis, appointed three of the Florida Supreme Court’s seven justices. Justice Alan Lawson, who was appointed by Gov. Rick Scott (now a senator) in 2016, is retiring in August, which means the court will soon have a majority appointed by DeSantis, who this year signed into a law a ban on abortion after 15 weeks. DeSantis has said he also favors a “heartbeat” law that would prohibit abortion after fetal cardiac activity can be detected, which typically happens around six weeks into a pregnancy.

The 15-week ban, which is scheduled to take effect on Friday, would affect less than 4 percent of abortions in Florida, according to data collected by the Centers for Disease Control and Prevention (CDC). Planned Parenthood argues that the law nevertheless conflicts with the 1989 abortion precedent and the state constitution. John Cooper, a circuit judge in Tallahassee, said on Thursday he would grant the organization’s request for a temporary injunction, although that may not happen soon enough to prevent the ban from taking effect. The law may ultimately be upheld by the Florida Supreme Court, which could modify or reverse its 1989 decision.


In 2013, the Illinois Supreme Court rejected the argument that a right to abortion is protected by the state constitution’s privacy clause, which says, “The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.” But the court concluded that “our state due process clause” provides “protections, with respect to abortion, equivalent to those provided by the federal due process clause” as interpreted in Roe.


In 2019, the Kansas Supreme Court ruled that the state constitution’s Bill of Rights, which says “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,” protects “a woman’s right to decide whether to continue a pregnancy.” It said the Bill of Rights “affords protection of the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination.” That right, in turn, “allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.”


In 1981, the Supreme Judicial Court of Massachusetts affirmed that abortion access is protected by the state constitution’s guarantee of due process. It noted a 1974 decision in which “we held that a pregnant woman’s husband had no right, whether constitutional or at common law, to declaratory and injunctive relief designed to prevent her from securing an abortion.” In that case, “we emphasized the principle of personal autonomy inherent in these cases.” The court also cited its 1977 decision overturning a local ban on abortion clinics, saying the government should take a neutral position on the issue, which “forbids the State to interpose material obstacles to the effectuation of a woman’s counselled decision to terminate her pregnancy during the first trimester.”



In 1995, the Minnesota Supreme Court ruled that “the right of privacy under the Minnesota Constitution encompasses a woman’s right to decide to terminate her pregnancy.” It said “both parties agree that women have a fundamental right to obtain an abortion before fetal viability under the Minnesota and United States Constitutions.”


In 1999, the Montana Supreme Court ruled that the “right of privacy” guaranteed by the state constitution protects “procreative freedom,” including the right to obtain a pre-viability abortion. It said the Montana Constitution “broadly guarantees each individual the right to make medical judgments affecting her or his bodily integrity and health in partnership with a chosen health care provider free from government interference.”

New Jersey

In 1982, the New Jersey Supreme Court recognized “the fundamental right of a woman to control her body and destiny,” including “the choice to terminate a pregnancy or bear a child.” It cited Article I, Paragraph 1 of the New Jersey Constitution, which says, “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” That language, the court said, “protects the right of privacy,” which includes “a woman’s right to choose whether to carry a pregnancy to full-term or to undergo an abortion.”



A 1901 law, enacted when Arizona was still a territory, bans abortion except when necessary to save a pregnant woman’s life. That law was enjoined after Roe but is still on the books, which has led to considerable confusion about whether it can be enforced.

John Keenan, legal director at the ACLU of Arizona, says “abortion remains legal in Arizona” as long as the pre-Dobbs injunction remains in place, but “providers have been forced to stop medical abortion care to avoid the risk of prosecution.” Gov. Doug Ducey and Attorney General Mark Brnovich, both Republicans, disagree about whether the 1901 ban can be enforced: Brnovich says it can, while Ducey says it can’t.

In March, Ducey signed into law a ban on abortion after 15 weeks of gestation except for medical emergencies. That law, which is similar to the Mississippi ban upheld in Dobbs, takes effect in September. It does not affect the vast majority of abortions: In 2019, according to the CDC’s data, 95 percent of Arizona abortions were performed at 15 weeks or earlier.

The Arizona Constitution includes an explicit privacy clause: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” In 2002, the Arizona Supreme Court ruled that state restrictions on Medicaid coverage of abortions violated the state constitution’s “equal privileges and immunities” clause. But it did not affirm a lower court’s ruling that the privacy clause protects a woman’s right to terminate a pregnancy, saying the case was “not about the right to an abortion.”



On Thursday, a state judge issued a restraining order that temporarily blocks enforcement of Kentucky’s “trigger” law, which took effect after Roe was overturned. That law, enacted in 2019, prohibits abortion at any stage of pregnancy. The only exception is for cases where an abortion is “necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”

Jefferson County Circuit Judge Mitch Perry, whose order also covers a six-week ban enacted in 2019, was responding to a lawsuit by the ACLU and Planned Parenthood. They argue that the bans violate the state constitution by “infringing on Plaintiffs’ patients’ rights to privacy and self-determination.”

The lawsuit cites Sections 1 and 2 of the Kentucky constitution. Section 1 says “all men are, by nature, free and equal, and have certain inherent and inalienable
rights,” including “the right of enjoying and defending their lives and liberties” and “the right of seeking and pursuing their safety and happiness.” Section 2 forbids “absolute and arbitrary power over the lives, liberty and property of freemen.”

Perry’s order does not address the merits of the plaintiffs’ claims, which Kentucky Attorney General Daniel Cameron says have no legal basis. He promises that “we will do everything possible to continue defending this law and to ensure that unborn life is protected in the Commonwealth.”


Louisiana’s 2006 trigger law makes abortion illegal except when it is “necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.” Another trigger law enacted this year added a few more narrow exceptions, which do not include pregnancies caused by rape or incest.

Those laws took effect immediately after Roe‘s reversal. But on Monday, a state judge issued a restraining order that temporarily blocked their enforcement. Orleans Parish Judge Robin M. Giarrusso was responding to a lawsuit by abortion providers who argued that the trigger laws are “unconstitutionally vague.” They say the laws “fail to provide notice of what conduct is prohibited, what exceptions are permitted, and what penalties attach.” Furthermore, they “do not provide notice of when any one of the Trigger Bans, or all of them collectively, are actually in force while simultaneously purporting to be immediately effective” after Roe‘s reversal.

“In a stunning state of affairs, the day Dobbs was issued, state and local officials issued conflicting statements about whether and which trigger laws were actually in effect and thus what conduct—if any—was prohibited,” the plaintiffs said. “Due process requires more.”

A hearing in the case is scheduled for July 8. Citing abortion law historian Mary Ziegler, The Washington Post says “the injunction on Louisiana’s trigger ban will almost certainly be lifted.”



In May, responding to a challenge by Planned Parenthood, a state judge temporarily enjoined enforcement of a 1931 law that bans abortion unless it is necessary to “preserve the life” of a pregnant woman. Michigan Court of Claims Judge Elizabeth Gleicher said there was a “strong likelihood” that Planned Parenthood would prevail.

Gleicher thought it was clear that “the right to be let alone—the right to bodily integrity—was understood by the ratfiers of the 1963 Michigan Constitution as a fundamental component of due process.” The right to bodily integrity, she said, includes a right to abortion.

“The link between the right to bodily integrity and the decision whether to bear a child is an obvious one,” Gleicher wrote. “Forced pregnancy, and the concomitant compulsion to endure medical and psychological risks accompanying it, contravene the right to make autonomous medical decisions. If a woman’s right to bodily integrity is to have any real meaning, it must incorporate her right to make decisions about the health events most likely to change the course of her life: pregnancy and childbirth.”

Gleicher’s injunction bars Michigan Attorney General Dana Nessel, the defendant, from enforcing the abortion ban. It also applies to “anyone acting under defendant’s control and supervision.” Nessel, a Democrat who was not inclined to enforce the 1931 law anyway, says that means “providing abortion care in Michigan cannot be prosecuted.” The Michigan Department of Licensing and Regulatory Affairs concurs.

Even the Republican-controlled legislature, which wants the ban to take effect, complains that Gleicher’s injunction bars “the Attorney General and all county prosecutors” from enforcing it. But Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka, both Republicans, claim the injunction does not constrain them because they have independent authority, as locally elected officials, to enforce state law.


A six-week ban, which evaded early judicial intervention by charging private litigants with enforcement, took effect in September. On Tuesday, a state judge issued a restraining order that temporarily blocks enforcement of a 1925 law that bans abortion except to save the mother’s life. Harris County Judge Christine Weems said enforcing that law, which was deemed unconstitutional in Roe, would “inevitably and irreparably chill the provision of abortions in the vital last weeks in which safer abortion care remains available and lawful in Texas.”

Weems was responding to a lawsuit in which abortion providers argue that the pre-Roe ban was “repealed expressly or by implication.” They also argue that “the declaratory judgment in Roe that the Pre-Roe Ban is unconstitutional remains in effect unless and until the judgment is reopened and vacated.” The complaint says allowing enforcement of the 1925 ban would violate the right to due process because “fundamental uncertainty” about the law’s status “authorizes or encourages arbitrary and discriminatory enforcement and fails to provide fair warning of whether its prohibitions exist so that ordinary people may conform their conduct accordingly.”

Texas also has a trigger law, enacted in 2019, that bans abortion except when continuing a pregnancy poses a risk of death or “substantial impairment of a major bodily function.” That law is supposed to take effect 30 days after Roe‘s reversal. Attorney General Ken Paxton says the countdown does not start until the Supreme Court issues its judgment (as opposed to its opinion) in Dobbs, which means the ban won’t take effect until about two months from now.


Utah’s 2020 trigger law allows abortion when it is necessary to save the mother’s life or avoid “a serious risk of substantial and irreversible impairment of major bodily function.” The law also includes exceptions for cases involving rape, incest, or a fetus with a “uniformly diagnosable” and “uniformly lethal” defect or a “severe brain abnormality” resulting in a “mentally vegetative state.” Otherwise, abortion is prohibited.


On Monday, a state judge in Salt Lake City issued a restraining order that temporarily blocks enforcement of Utah’s trigger law. Third District Judge Andrew Stone said the law “upsets the longstanding status quo on which Utah women and their families have relied for at least five decades.” If the ban is enforced, he said, it “will force many Utahns to continue carrying a pregnancy that they have decided to end, with all of the physical, emotional, and financial costs that entails.”

Stone was responding to a lawsuit in which Planned Parenthood and the ACLU argue that the abortion ban violates several rights guaranteed by the state constitution. They say the Utah Supreme Court has recognized that the state constitution protects “the rights inherent in family relationships,” which the ban violates because it “prevents individuals from making fundamental decisions about how to arrange their family relationships.”

The lawsuit also argues that the trigger law violates the right to equal protection because it “disproportionately limits women’s bodily autonomy and liberty”; the “substantive due process right to bodily integrity,” which is “violated whenever one’s health and safety is imperiled without one’s consent”; “the prohibition on involuntary servitude” by “forc[ing] people who become pregnant to undertake the mental and physical labor of pregnancy and childbirth against their will”; and “the right to privacy,” which the Utah Supreme Court has said includes “those aspects of an individual’s activities and manner of living that would generally be regarded as being of such personal and private nature as to belong to himself and to be of no proper concern to others.”

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Exclusive: The Supreme Court hands Biden the smallest possible victory in its “Remain in Mexico” case –




The Supreme Court hands Biden the smallest possible victory in its “Remain in Mexico” case

#Supreme #Court #hands #Biden #smallest #victory #Remain #Mexico #case

Everything about the Supreme Court’s handling of Biden v. Texas, an important immigration decision it handed down on Thursday, emphasizes how easily the Court can sabotage President Joe Biden’s policies — even as it rules narrowly in Biden’s favor.

The case involves the so-called “Remain in Mexico” program, also known as the Migrant Protection Protocols, a policy implemented by President Donald Trump that required tens of thousands of immigrants seeking asylum in the United States to, well, remain in Mexico while their cases were being processed. The Biden administration announced in a June 1, 2021 memo from Secretary of Homeland Security Alejandro Mayorkas that it would end this program — noting, among other things, that it forced many migrants to live in squalid conditions without “stable access to housing, income, and safety.”

But then Judge Matthew Kacsmaryk, a Trump judge known for his extreme ideology — Kacsmaryk has labeled being transgender a “mental disorder,” claimed that gay people are “disordered,” and denounced what he called a “sexual revolution” — ordered the Biden administration to reinstate the program last August.

In the Biden decision handed down on Thursday, six justices — the three liberal justices plus Chief Justice John Roberts, and Justices Brett Kavanaugh and Amy Coney Barrett — all agree that Kacsmaryk misread federal immigration law when he held that the federal government is required to maintain the Trump-era program. (Technically, Barrett dissented from the Court’s holding, stating in her opinion that she agrees “with the Court’s analysis of the merits,” but she would have sent the case back to lower courts to consider a jurisdictional issue.)

Indeed, as Roberts indicates in his opinion for the Court, Kacsmaryk misread a key provision of federal law so egregiously that, if the Trump judge’s reasoning is taken seriously, no president has ever complied with this law since it was enacted 26 years ago.

The Court’s decision in Biden goes a long way toward reaffirming that Joe Biden is the president, Alejandro Mayorkas is secretary of Homeland Security, and Matthew Kacsmaryk is neither of these things.

But, while the Court’s rejection of Kacsmaryk’s misreading of federal law is a victory for Biden, it is likely to be a hollow one. Although the Court decides the important issue of whether federal immigration law requires a Remain-in-Mexico-style policy (it doesn’t), the justices send the case back down to Kacsmaryk to resolve a few other lingering questions, including whether Mayorkas adequately explained the administration’s decision to end the program in an October memorandum.

Given Kacsmaryk’s past behavior, and his commitment to an extraordinarily conservative ideology, it is very likely that he will find a new excuse to order the Biden administration to reinstate the Remain in Mexico program once the case is back in his hands. And Kacsmaryk’s new decisions will be reviewed by the US Court of Appeals for the Fifth Circuit, an extremely conservative court that has thus far been complicit in Kacsmaryk’s efforts to seize control of much of US border policy.

Indeed, the Supreme Court has also been complicit in these efforts. Last August, not long after Kacsmaryk handed down his initial decision appointing himself border czar, the Supreme Court rejected the Biden administration’s request to block that decision — claiming that Mayorkas made a paperwork error in his initial June memo suspending Remain in Mexico.


Kacsmaryk’s decision, in other words, has now been in effect for nearly a year. While the Biden administration most likely will take steps quickly to end Remain in Mexico, Kacsmaryk could once again put a stop to that. And it could be a year or more before the Supreme Court gets around to reversing whatever order Kacsmaryk hands down after the case is sent back to him.

By slow-walking this case, in other words, the Court has ensured that Judge Kacsmaryk, and not Secretary Mayorkas, will exercise many of the secretary of Homeland Security’s most important policymaking powers. And, at this rate, President Biden could be near the end of his term by the time this case is fully resolved and he finally regains the power to end Remain in Mexico for good.

Kacsmaryk’s reading of federal immigration law is embarrassingly wrong

The crux of Kacsmaryk’s decision is that federal immigration law only gives “the government two options vis-à-vis aliens seeking asylum: 1) mandatory detention; or 2) return to a contiguous territory.” That is, when a person arrives at the Mexican border seeking asylum, the government must either lock that person up, or require them to stay in Mexico until their asylum case is resolved.

Under this incorrect reading of immigration law, even the Trump administration was insufficiently cruel to asylum seekers. Trump’s version of the Remain in Mexico policy exempted non-Spanish speakers. But Kacsmaryk’s reading of federal law would not permit such exceptions.

Kacsmaryk arrived at his wrongful conclusion by looking at just two provisions of federal law. One provides that the government “may” return an immigrant who arrives on land at the Mexican or Canadian border to Mexico or Canada while that person’s immigration case remains pending in the United States. The other provision states that most such immigrants “shall be detained.”

Thus, Kacsmaryk concluded that the government has only two options, detention or return to Mexico.

But, as Roberts explains in his opinion, there are many problems with this interpretation of federal law. For starters, the law explicitly gives the government several options — not just two — when confronted with an asylum seeker at the Mexican border. Among other things, the government may “parole into the United States” an immigrant seeking admission to this country “for urgent humanitarian reasons or significant public benefit.” Kacsmaryk’s framework ignores this option.

The United States, moreover, has only a tiny fraction of the detention capacity it would need to detain every asylum seeker who arrives at the Mexican border. And the US cannot unilaterally decide to send tens of thousands of asylum seekers to Mexico — the Mexican government has to agree to such an arrangement.

That means that, under Kacsmaryk’s reading of federal immigration law, it may be impossible for the federal government to follow the law, because the Mexican government may refuse to take in immigrants that the United States lacks the capacity to detain.

As Roberts explains in his opinion, courts are supposed to “avoid ‘the danger of unwarranted judicial interference in the conduct of foreign policy.’” Kacsmaryk, by contrast, effectively forced the United States to enter into a diplomatic negotiation with Mexico — in order to reinstate a program that neither government supports.

Kacsmaryk is likely to sabotage Biden again

Even though the Supreme Court rejects Kacsmaryk’s egregious misreading of federal law, it leaves him with significant power to sabotage Biden — and to order Remain in Mexico reinstated one more time.


First of all, the Supreme Court concluded last August that Mayorkas’s original June memo ending the Remain in Mexico program did not adequately explain why he did so. (It’s well established that the federal agencies must explain themselves when they change existing policies, although it’s more debatable whether the June memo failed to do so.) This is why Mayorkas issued a longer memo in October providing a more full-throated explanation for the Biden administration’s policy.

Rather than determining whether this new memo is sufficient, however, the Supreme Court sends the case back down to Kacsmaryk to consider this question. So Kacsmaryk can easily seize control of border policy again by finding some fault with this new memo.

The Supreme Court’s decision also allows Kacsmaryk to determine whether the Biden administration is properly exercising its authority to grant parole to some immigrants “for urgent humanitarian reasons or significant public benefit.” That gives Kacsmaryk another possible rationale to sabotage Biden’s policies.

Perhaps Kacsmaryk will get his hands on this case again, and suddenly decide to act like a fair and impartial judge who is loyal only to the law. Given his past behavior, however, this outcome seems unlikely.

All of which is a long way of saying that this case is likely to go on for a very long time. And for as long as it does, thousands of immigrants are at the mercy of one of the most ideological judges in the country.

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Exclusive: January 6th Documentary Film Producer Under Armed Protection Due To Trump Supporter Threats –




Alex Holder under armed protection

#January #6th #Documentary #Film #Producer #Armed #Protection #Due #Trump #Supporter #Threats

Alex Holder, the director of the documentary film “Unprecedented,” now needs armed guards to protect him.

As the stakes continue to rise with each Select Committee hearing and more and more jaw-dropping evidence of criminality hones in closer to Trump and his family, the danger to all involved increases. There are unhinged people in all segments of society. But the people threatened by these hearings are the same people who gathered up weapons to follow a man who assaulted his own Secret Service agents precisely because he demanded that he lead that armed insurgency. It feels as though violence has been authorized from the top and from the beginning.

We know that the film contains evidence the Committee deems critical. Now, that filmmaker, a man who make a film Trump authorized and then participated in, is in need of protection. According to The Daily Beast:

The documentary filmmaker who filmed with Donald Trump and his family in the months before and after the attack on the Capitol says he now needs armed protection.

Alex Holder, who testified to the House select committee investigating the Jan. 6 insurrection last week, spoke candidly about the risks his disclosures have put him in during a BBC TV interview Wednesday.

When asked if he felt threatened because of the evidence he’s given to the panel, Holder said: “Well, my life changed about a week ago and I now literally have two armed guards outside this studio right now that follow me around everywhere.”

It is only going to get worse until the evidence is out. Many people believe that Cassidy Hutchinson’s testimony was moved up specifically to lessen the threat to her. Now that her testimony is public record, threats won’t stop anything. They could be used as a warning to future witnesses.

The film provides direct evidence of Trump’s activities in the days leading up to January 6th but the fact that Holder needs protection now is also evidence that the Committee is getting very close to the truth and the truth is likely much worse than we guessed.



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