The question isn’t whether it’s a good thing, or even just fine, that ICE and CBP agents round up random people who appear to be foreigners with neither visible names nor shield numbers such that you can identify who engaged in illegal conduct. Stephen Miller thinks that’s swell, even if Gavin Newsom and others do not. The question is whether the State of California can make it a crime for federal agents to do so within its borders. The Ninth Circuit, unsurprisingly, in an opinion by Judge Mark Bennett, held it cannot.

Section 10 generally mandates the visible display of identification by law enforcement officers operating within the State. See Cal. Penal Code § 13654. It provides that any “law enforcement officer operating in California that is not uniformed . . . shall visibly display identification that includes their agency and either a name or badge number or both name and badge number when performing their enforcement duties.” Id. § 13654(a). “Law enforcement officer” is defined to include “any federal law enforcement officer.” Id. § 13654(d)(2). And “‘[e]nforcement duties’ means active and planned operations involving the arrest or detention of an individual, or deployment for crowd control purposes.” Id. § 13654(d)(1). An officer’s “willful and knowing violation of [§ 10] is punishable as a misdemeanor” under California law. Id. § 13654(c).

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Trump says so, and he is, if he says so himself, “extraordinarily brilliant.”

It’s quite possible that Trump had “no idea what the hell they were talking about in the Referendum,” although that might say more about Trump than about the referendum.

Curiously, David Bernstein found it similarly confusing. Continue reading →

In the comments to Josh Blackman’s post at VC, Molly Godiva called it “constitutional Calvinball.” Josh contrasts two shadow docket decisions to raise the question of whether, and to what extent, they create “clearly established” law for the purposes of qualified immunity.

The Supreme Court’s emergency docket ruling in Mirabelli and denial of certiorari in Foote will send conflicting signals. On the one hand, the Court blocked California’s policy on the shadow docket. On the other hand, the Court allowed a similar policy from Massachusetts to go into effect.

A question arises. Would this school district retain qualified immunity? Does Mirabelli, as an emergency docket ruling, create “clearly established” law? I know the Supreme Court has told us that emergency docket rulings are precedential. But is the law “clearly established”? Would this sort of ruling be clearly established by the Supreme Court for purposes of AEDPA?

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At Volokh Conspiracy, Stephen Sachs, the Scalia Prawf at Harvard Law School, posits a curious take on the New York Times article about the leaked memos revealing the shift in how the Supreme Court dealt with the shadow docket. The premise is that one of the writers, Adam Liptak, is a lawyer as well as journalist, such that his involvement in either obtaining the confidential memos or writing about them violates attorney disciplinary rules.

There are at least two theories under which Liptak may have violated the ethics rules.

First, Liptak may have violated Rule 8.4(f) of Professional Conduct, which provides that a “lawyer or law firm shall not * * * knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” If a Supreme Court employee provided memoranda to the Times in the hope of making them public, and if Liptak assisted in that effort—both questions of fact, which would have to be answered through a careful inquiry—he may have violated this provision. Section 320, Canon 3.D.3, of the Judicial Conference’s Code of Conduct for Judicial Employees provides that a current or former judicial employee “should never disclose any confidential information received in the course of official duties except as required in the performance of such duties.” That Code doesn’t apply to “employees of the United States Supreme Court,” id. § 310.10(a), but it’s widely known that the Court has adopted similar rules that do.

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Without providing any clue how they got their hands on 16 internal Supreme Court memos, the New York Times posits that almost a week’s worth of the justices’ correspondence, from February 5th to the 9th, 2016, changed the Shadow Docket forever.

For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.

But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama’s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan’s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning.

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San Juan, the capital city of Puerto Rico, is a neat place. It’s one of the few cities I’ve visited that felt old, dirty, fresh, and alive all at the same time. We docked in the port downtown and waited for our tour guide. The day’s mission? A cooking class, which delighted my twelve-year-old daughter.

Traipsing through the streets of San Juan, one gets a sense the city is rather proud of both the mishmash of cultures and capitalism that seems to make Puerto Rico so interesting. Everything’s in Spanish, yes, but there’s a lot of English signs and speakers to get where one needs to be if necessary. Continue reading →

After Judge Leon issued a preliminary injunction against Trump’s construction of the monstrously huge, yet tastelessly gaudy, ballroom, Trump took to the tube to explain that the judge’s allowance of construction limited to national security meant he could build anything he wanted.

Carving out a narrow exception, Judge Leon wrote in his order that “actions strictly necessary to ensure the safety and security of the White House” could continue, to prevent any risks from an open work site next to the president’s residence.

The problem, as Judge Leon saw it, was that the White House now had a gaping hole where once the East Wing stood, and it was not unreasonable to allow construction to secure that hole. But give Trump an inch and he takes whatever he wants. Continue reading →

I’m not a gambler. Sure, I’ve been to casinos and played games of chance. Sure, I played in the longest running floating poker game on the Long Island Railroad. But that was just to kill time, not to win money. I haven’t been to a casino in years and have no desire to go. I don’t have a gambling app on my Jitterbug. I tell you this not to demonstrate my virtue, but rather my bias. If gambling ceased to exist, it would not cost me a moment’s sleep.

Yet, David French strays down a slippery slope here.

What is the problem? We are making virtue more difficult and vice easier to access. By the time young men enter adulthood, they’ve been conditioned by a world that makes it ever easier to place a bet and harder to go to college. It’s easier to watch porn and more difficult to form real relationships. And the social results of this gigantic national experiment are exactly what you’d expect them to be.

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Two of the the three judge panel, both appointed by Trump, decided that their efforts were better put toward the painful parsing of Judge James Boasberg’s words than upholding the duty to comply with the order of the court. Writing for the majority, Judge Neomi Rao held that Judge Boasberg’s pursuit of criminal contempt was a “clear abuse of discretion.”

The widening gyre of the district court’s investigation again calls for the extraordinary remedy of mandamus to halt the judicial “impairment of another branch in the performance of its constitutional duties.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 390 (2004) (cleaned up). The district court proposes to probe high-level Executive Branch deliberations about matters of national security and diplomacy. These proceedings are a clear abuse of discretion, as the district court’s order said nothing about transferring custody of the plaintiffs and therefore lacks the clarity to support criminal contempt based on the transfer of custody. Moreover, the government has already provided the name of the responsible official, so further judicial investigation is unnecessary and therefore improper. In these circumstances, mandamus is appropriate to prevent the district court from assuming an antagonistic jurisdiction that encroaches on the autonomy of the Executive Branch.

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Who could have possibly guessed that Trump’s defamation suit against that radical left lunatic rag, the Wall Street Journal (not to mention my old pal, Joe Palazzolo, one-time author of the WSJ Law Blog), for a whopping $10 billion over Trump’s “fake hoax” Epstein birthday book note would end up getting tossed?

The Complaint also alleges that President Trump told Defendants that the Letter was a fake before they ran the Article. President Trump argues that this allegation shows that Defendants acted with serious doubts about the truth of their reporting and, therefore, with actual malice. The Court disagrees. To establish actual malice, “a plaintiff must show the defendant deliberately avoided investigating the veracity of the statement in order to evade learning the truth.” Continue reading →