Sixth Circuit enjoins Kentucky from banning drive-in services

On May 2, 2020, the Sixth Circuit issued a 10-page order prohibiting Kentucky from banning drive-in church services. https://drive.google.com/file/d/1uh_gtHlEa7EoRWs3EW_4G3v3ievQbDCJ/view?usp=drivesdk The court concluded the church is likely to prevail under Kentucky’s Religious Freedom Restoration Act and under the First Amendment’s free-exercise clause.

Do local governments have the power to order businesses to close in the face of COVID-19?

BTW what follows is not legal advice, just my thoughts on this matter.

Our local mayor declared a state of emergency in Jackson, Tennessee, and today he ordered local bars to close, restaurants to limit occupancy at 50% capacity, and grocery stores and pharmacies to reserve the first hour of operations for customers 65 and older. My city is not alone in taking action; local governments across Tennessee and around the country have taken similar actions or likely will be. Can the government do this? When local governments order businesses to close, must the government compensate the businesses? 

Unlike the president, state and local governments have the power to order businesses to close to protect the health of the people. This is called the police power. The police power rests with the states, and when the states create local governments, the states share this power with the local governments. 

Under this authority, local governments can close businesses or restrict hours to prevent the spread of disease. Although the Fourth Amendment or due process might be implicated at some point, plaintiffs haven’t fared too well in similar cases. For example, plaintiffs filed lawsuits following local and state government quarantines in response to Ebola. See Liberian Community Association of Connecticut v. Malloy, 2017 WL 4897048 (D.CT March 30, 2017, Covello, J.); Hickox v. Christie, 205 F.Supp.3d 579 (D.NJ 2016). The courts concluded that the police power allowed the governments to quarantine these persons. But what about closing businesses?

The same principle applies. If it is necessary to protect the people from disease, the state or local governments can order businesses closed. Yes, the Fifth Amendment does have a clause that requires the government to compensate an owner when the government takes property for a public purpose. But the police power is a well-recognized exception. 

When the government acts pursuant to its police power, the Constitution does not require compensation. See Patty v. United States, 136 Fed.Cl. 211, 213 (2018) (citing Mugler v. Kansas, 123 U.S. 623 (1887)). This does not mean that the government can avoid compensation by claiming it is acting under its police power. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). "The distinction between an exercise of the police power and a constitutional taking has been characterized since Mugler as 'whether the governmental action operates to secure a benefit for or to prevent a harm to the public.'" Id. at 214 (quoting Morton Thiokol, Inc. v. United States, 4 Cl. Ct. 625, 630 (1984)). The facts surrounding the government's actions are important in making this determination. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

Based on the current situation, it appears that state and local governments have the power to take action to stop the spread of disease. The length of closures or other restrictions must be reasonable in light of the facts. 

The Fifth Amendment's Double Jeopardy clause

The Fifth Amendment's second clause is known as the Double Jeopardy clause. And it provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The Supreme Court has never read "life or limb" literally. The protection covers all felonies and misdemeanors. Stated simply, once you've been acquitted or convicted of a crime the government can't prosecute you again for that crime. Because we have a federal system of government, we have dual sovereigns: the national government and the state governments. This raises the question: if you are convicted or acquitted of a crime in state or federal court, can the other prosecute you for the same crime?

Until recently, this seemed to be a settled question. In 1922, the Supreme Court of the United States explicitly upheld the dual-sovereignties doctrine. In United States v. Lanza, SCOTUS held "we have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory." Under this doctrine, the fact that Lanza had been prosecuted under state law did not bar his subsequent prosecution by the federal government. The Court recognizes that each sovereign has different interests in making certain acts crimes and in deciding whether to prosecute crimes. Here, I'll detour from the question at hand to mention another important development in the law of double jeopardy. 

Until 1969--unless a state constitution or state law prohibited it--a state could prosecute a person after an acquittal. In Benton v. Maryland, the state indicted Benton for larceny and burglary; the jury acquitted Benton on the larceny charge but convicted him of burglary. Because Benton's grand and petite juries were selected under an invalid law, his case was remanded to the trial court. Benton exercised his right to be indicted and tried all over again. The state indicted him on the burglary charge and decided to take another shot at the larceny count too. The case worked its way to SCOTUS where the Court held that the Fifth Amendment's double jeopardy clause applied to the states. Thus, Maryland couldn't retry Benton on the larceny charge because of his acquittal. Now, back to the dual-sovereignties question.


In Abbate v. United States, the defendants asked SCOTUS to overrule Lanza and abandon the dual-sovereignties doctrine. The defendants were convicted in Illinois for violating an Illinois statute that made it a crime to conspire to destroy the property of another. Abbate and his confederates met in Chicago as part of a conspiracy to bomb South Central Telephone & Telegraph facilities in Mississippi, Tennessee, and Louisiana. Abbate and his fellows changed their minds and did not go through with the bombing. But it was too late to avoid prosecution for conspiring to bomb the facilities. They pleaded guilty to state charges in Illinois and got sentences of three months each. Not to be outdone, the federal government indicted Abbate and friends in Mississippi. And this set in motion the failed effort to convince the Supreme Court to overrule Lanza. There have been other attempts by those convicted in state and federal courts and those convicted in the courts of two states to convince the Court to abandon the dual-sovereignties doctrine. These attempts have failed. On December 6, 2018, the Court heard arguments in the most recent attempt: Gamble v. United States.

Our friend Gamble was convicted of second degree robbery in Mobile County, Alabama, in
2008. This made Gamble a felon. Both state and federal law make it a crime for a felon to possess a gun. In 2015, Gamble was driving in Mobile with a burned out headlight. He was stopped by a police officer who smelled--you guessed it--marijuana. This led to probable cause to search Gamble's car, and the officer found two baggies of marijuana, digital scales, and a 9mm handgun. Alabama indicted Gamble for violating state law. An eager beaver in the U.S. Attorney's office saw a chance for an easy indictment and quick conviction so the U.S. Attorney could issue a press release about its war on drugs. Double jeopardy was Gamble's only objection to his federal indictment. The district court and the Eleventh United States Cirucuit Court of Appeals rejected Gamble's argument because of the dual-sovereignties doctrine. This led Gamble to ask SCOTUS to review his case. It only takes four justices for the Court to accept the case but five to win. 

The majority of the justices don't seem open to Gamble's arguments in favor of abandoning the dual-sovereignties doctrine. There is concern that this would prevent the United States from prosecuting criminals in the United States if they are acquitted in another country. And it would create a lot of unanswered questions, e.g., which foreign courts will the court apply double jeopardy to and which will it not? There are likely only two justices who will vote to abandon the dual-sovereignties doctrine: Ginsburg and Thomas. In Puerto Rico v. Sanchez-Villa, the Court held that the doctrine did not apply to Puerto Rico because Puerto Rico derives its power from Congress. Therefore, you can't be prosecuted by Puerto Rican authorities and then by the federal government or vice versa. Justice Ginsburg concurred in the decision, but in her concurring opinion she urged the Court to take another look at the dual-sovereignties doctrine; Justice Thomas joined her concurring opinion. Perhaps Gorsuch will join Ginsburg and Thomas, but 6 > 3 so Gamble will lose and the dual-sovereignties doctrine will continue.  

Tell President Trump that Alexander Acosta must go!

This week I read The Miami-Herald's investigative work on Jeffrey Epstein. You can read the articles here, here, and here. These articles detail the horrendous nature of Epstein's criminal acts.  Epstein is a rapist, sex trafficker, and connected politically. (Epstein's connections are to both parties.)  Local law enforcement in Florida investigated Epstein for various sex crimes and discovered that his crimes were probably more than local officials could handle. Because the local prosecutor wasn't being real helpful, the local investigators asked the FBI for help. And together they were able to build quite a case against Epstein. The problem, however, was Alexander Acosta. He was the United States Attorney in charge of the case. 

Acosta cut a deal with the politically connected Epstein. Acosta, in violation of Department of Justice rules, kept the many victims in the dark about this deal. He didn't want them coming to court and persuading an ineffective federal judge not to approve the deal. Under the non-prosecution deal Epstein would serve 18 months in a local jail. With Epstein's connections, he was able to leave jail everyday for six hours "work" at an office that Epstein kept nearby. Epstein's victims were sacrificed by Acosta on the altar of politics. Yes, the prosecutor, who was supposed to seek justice, failed them. 

Today, Acosta is serving as the Secretary of Labor. It is disappointing that the Senate, despite knowing about this, consented to the nomination. What message does this send to the victims? 

Crime victims in general and sex-crime victims in particular must be able to trust that prosecutors will do their jobs. But here the victims learned a lesson as old as humankind: nothing trumps political connections. And the young men and women building political connections will learn from this that by sacrificing honor and integrity you too can get a plumb political appointment. 

Write your Representative and Senators and demand that Congress conduct an investigation into this matter. 

Let's read the Constitution!

The day after the 2018 mid-term elections Jeff Sessions submitted his resignation, and the president appointed Matthew Whitaker to serve as acting attorney general. Whitaker was Sessions's chief of staff, and it was from this position that the president elevated him to acting attorney general. All without giving so much as a sideways glance at the Constitution. 

The Constitution empowers the president to "nominate, and by and with the advice and consent of the Senate, . . . appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for . . . ." U.S. Const. Art. II, sec. 2. The Constitution's Appointments Clause also provides that "the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." Thus, the Constitution creates two classes of officers, i.e., principal and inferior. Although the line between these two classes is unclear, there is no doubt that the office of the attorney general is a principal office. And the founders had very good reasons for requiring that principal officers be nominated by and with the advice and consent of the Senate. 

In arguing in favor of the Appointments Clause, Hamilton recognized three ways for appointing principal officers. This power could "be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly."  Federalist No. 76 The drafters of the Constitution were concerned about the danger of placing the power to appoint principal officers of the government in the hands of one person. Alexander Hamilton explained this in Federalist No. 76:

        To what purpose then require the co-operation of the Senate? I answer, that the

        necessity of their concurrence would have a powerful, though, in general, a 

        silent operation. It would be an excellent check upon a spirit of favoritism in the

        President, and would tend greatly to prevent the appointment of unfit characters 

        from State prejudice, from family connection, from personal attachment, or 

        from a view to popularity. In addition to this, it would be an efficacious source 

        of stability in the administration.

        It will readily be comprehended, that a man who had himself the sole disposition 

        of offices, would be governed much more by his private inclinations and interests, 

        than when he was bound to submit the propriety of his choice to the discussion 

        and determination of a different and independent body, and that body an entire 

        branch of the legislature. The possibility of rejection would be a strong motive to 

        care in proposing. The danger to his own reputation, and, in the case of an 

        elective magistrate, to his political existence, from betraying a spirit of favoritism, 

        or an unbecoming pursuit of popularity, to the observation of a body whose 

        opinion would have great weight in forming that of the public, could not fail to 

        operate as a barrier to the one and to the other. He would be both ashamed and 

        afraid to bring forward, for the most distinguished or lucrative stations, candidates 

        who had no other merit than that of coming from the same State to which he

        particularly belonged, or of being in some way or other personally allied to him, 

        or of possessing the necessary insignificance and pliancy to render them the

        obsequious instruments of his pleasure. 

Federalist No. 76 

The back-and-forth as to whether the president could appoint Whitaker has included discussion of the Federal Vacancies Reform Act . The Act allows the president to "direct an officer of employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity . . . ." 5 U.S.C. § 3345(a)(3). The Federal Vacancies Reform Act is an attempt to allow the president to avoid the Appointments Clause. In Justice Thomas's concurring opinion in NLRA v. SW General, Inc. he argued that in an appropriate case, the Court should find this Act to be unconstitutional. Justice Thomas's view is based on the language of the Appointments Clause. This Act encourages the very thing that concerned the drafters, i.e., "the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” NLRA v. SW General, Inc. (Thomas J., concurring). Presidents will always seek to increase executive power in the face of a weak or lazy Congress.

Some will argue that even the First Congress allowed the president to make temporary appointments. This is true, but that doesn't make it constitutional. For example, Congress passed the Alien and Sedition Acts during John Adams's administration, but this was no less unconstitutional merely because those present or alive at the drafting of the Constitution approved it.  

Trump should seek the advice of those who can instruct him in the constitutional requirements for appointing the attorney general. The Constitution is not a set of suggestions to be followed or ignored as convenience dictates. 

Migrants sue Trump!

Lawsuits will not solve America's immigration problems.

Some of the participants in the caravan from the Northern Triangle have hired a D.C. lawyer and filed a lawsuit against the president, the attorney general, and various other federal officials. When you read the complaint, it becomes clear that this lawsuit, like the caravan, is a stunt. And neither the caravan nor the lawsuit is intended to help anyone who really needs it. The purpose of the lawsuit is to get a district court judge to prevent the government from denying asylum to caravan participants. Once this is done, the plaintiffs will argue that the government cannot follow its normal procedures.

The plaintiffs claim that Trump's declaration that U.S. troops will stop the caravan from entering the U.S. "is shockingly unconstitutional." The plaintiffs assert that the Fifth Amendment's due process clause prevents the government from acting. The plaintiffs, however, do not have constitutional rights. "An alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application . . . ." Landon v. Plasencia, 459 U.S. 21, 33 (1982). It is only after "the alien gains admission to our country and begins to develop the ties that go with permanent residence [that] his constitutional status changes accordingly." Id. The fundamental rule that "'aliens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with the country'" still applies. Vang v. Gonzales, 237 Fed.Appx. 24, 29 (6th Cir. 2007) (quoting United States v. Vedugo-Urquidez, 494 U.S. 259, 271 (1990)). But the lawsuit is really intended to force the government's hand under the Flores agreement. An agreement that resulted from a lawsuit filed in 1985 and was never intended to apply to situations beyond the facts that created it. The insurmountable problem is that Flores is based on the Fifth Amendment's due process clause, and the members of the caravan, not having entered the U.S., do not have the protection of the Constitution. 

               The Flores lawsuit.

In 1985, Jenny Lisette Flores was a 15-year-old girl who left El Salvador hoping to find her aunt who lived in the United States. Jenny was caught at the U.S. border and detained in pitiful detention conditions. At the time, unaccompanied children were kept in conditions that included being detained with unrelated adults and in unsanitary conditions. The length of these detentions depended on how quickly the government processed the cases. Rather than release Jenny to her aunt, the government took the view that unaccompanied children could be released only to their parents. After 12 years, the  Flores case was settled.  

The settlement agreement required the government to release unaccompanied children as soon as possible and in no event could they be detained more than 20 days. The agreement specified the persons or entities to whom the children could be released: (1) parents, (2) legal guardians, (3) adult relatives, (4) an adult designated by the parents or the legal guardians as capable of caring for the children, (5) a licensed program willing to accept legal custody, or (6) an adult individual or entity seeking custody when there are no reasonable alternatives to long-term detention. The Flores agreement led to rules that addressed the length of time during which unaccompanied children could be kept in detention and the conditions in which they could be held. 

During the Obama administration, there was an increase in the number of Central American families seeking asylum. To deter asylum seekers, the Obama administration decided to keep families in detention and deport them as soon as the process could be completed. In response to a legal challenge, the court held that the plan violated the Flores agreement. The Court of Appeals for the Ninth Circuit decided that the Flores agreement prevented the government from detaining the children for the purpose of deterring asylum seekers. This broadened the Flores agreement from unaccompanied children to all children and led to the problem of separating children from their parents. Although the Ninth Circuit did not hold that the agreement required the release of parents, the government began releasing the parents and the children because the three detention facilities were full. The government has two options: (1) separate the children from their parents to satisfy the terms of the Flores agreement, or (2) release families pending resolution of asylum petitions or the criminal charges of illegal entry. The latter often leads to the government losing track of the released families. 

Where's Congress?

Although our government consists of three branches, only two of the three have appeared on stage. Missing from this is the most important branch: Congress. Congress, the law-making branch, prefers to sit in the wings and carp about what is going on, rather than accepting its role and trying to fix the immigration mess.

So without Congress taking action, we are left with the Judicial Branch fumbling its way through lawsuits that are not capable of, nor is it this branch's job, developing a coherent immigration policy. And the Executive Branch will continue to react to situations as they arise. The results are usually less than desirable. Congress should listen to Senators Grassley, Cruz, and Tillis and act.

Trump v. Hawaii

Before Trump, there was Obama

Unless you do your own research, you aren't likely to know that during the Obama administration the federal government prevented Muslims from entering the United States. The federal government did this through a secret program—Controlled Application Review andResolution Program—set up by the United States Citizenship and Immigration Service; a part of the U.S. Department of Homeland Security. In 2008, as the Bush administration was winding down, the USCIS created the  Controlled Application Review and Resolution Program.

This program denied or delayed the applications of individuals who the officials decided were national security risks. These individuals were not given reasons for the denials. CARRP remained a secret until discovered during lawsuits challenging the denial or lack of action on applications for admission. 

To avoid these lawsuits, the USCIS suddenly granted the applications of the plaintiffs. This is odd considering that these applications had lain dormant for several years under the national-security-risk determination. The USCIS granted the applications to render the lawsuits moot; thus allowing this program to avoid scrutiny. CARRP included nationals from far more countries than the seven countries affected by Trump’s executive order. The ACLU has filed several of the lawsuits challenging CARRP, and it acknowledges that the Obama administration treated immigrants very badly. The media were not so interested in programs, secret or otherwise, that deprived immigrants of due process during the Obama administration.

After Trump became president, he issued executive orders and proclamations regarding emigrants from countries that failed to provide sufficient information on their nationals seeking to enter the United States. This review of Trump v. Hawaii and the preceding review of the CARRP should quiet the true believers on each side. Incidentally, there's no reason for the government to operate a program like CARRP in secret. 

Analysis of Trump v. Hawaii

Trump v. Hawaii, is about presidential power under the Immigration and Naturalization Act; power that Congress granted to the Executive Branch. The Act provides: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. § 1182(f).

In an exercise of this power, President Trump issued a proclamation imposing restrictions on the entry of  nationals of countries that did not share adequate information for the United States to make informed entry determinations, or that otherwise presented national security risks. Presidential Proclamation No. 9645. This proclamation was issued after a worldwide review under Executive Order 13780. The proclamation "placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate." The proclamation described how these eight countries, Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen, were chosen. The decision to include these eight countries followed not only review by the Dept. of Homeland Security, but a 50-day period during which the State Dept. encouraged these countries to provide better information on individuals immigrating to the United States. When these countries failed to make sufficient efforts to provide this information, the DHS secretary recommended imposing restrictions on those emigrating from seven of the eight countries. Iraq was excluded from these restrictions because of its cooperation with the United States. The restrictions were not uniform, but varied depending on the circumstances of each country. 

The plaintiffs challenged this proclamation as exceeding the power that Congress granted the president. After a thorough review, however, the Court held that Trump's exercise was within the power granted the president by Congress. (The Court did not say this is a good policy or a bad policy; simply that the president acted within the authority granted him by Congress.) The plaintiffs argued that the presidential proclamation failed to cite sufficient bases for limiting the immigrants from these countries. As the Court noted, however, the proclamation's 12 pages describing the process of evaluation, the reasons that persons from these countries posed a threat, etc. provided a more detailed explanation than previous proclamations of this type. Another objection was that the proclamation did not contain an end date. This objection failed to account for the fact that the 43 proclamations before this one did not contain end dates, Congress did not include such a requirement in its delegation of power to the president, and this proclamation, like several from the Reagan era and the Obama era, conditioned expiration on the ending of the event that made the immigration restrictions necessary. 

The plaintiffs then argued that the proclamation violated the Establishment Clause because it was based on hostility to Islam and not national security concerns. The Court recognized that the proclamation "is facially neutral toward religion," and the plaintiffs were asking "the Court to probe the sincerity of the stated justifications for the policy by [referring] to extrinsic statements . . . ." Specifically, the plaintiffs argued the president’s statements on Muslims were contrary to “fundamental standards of respect and tolerance, in violation of our constitutional tradition.” The Court, however, correctly recognized that “the issue before [the Court] is not whether to denounce the statements”; rather “it is . . . the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter with the core of executive responsibility.”

The Court has long recognized that immigration decisions are "a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Because these decisions can affect international relations, they are more appropriately left to the political branches. And although immigrants do not have a constitutional right to enter the country, the Court has extended judicial review to decisions that affect the constitutional rights of citizens. For example, when the attorney general refused a visa to a "revolutionary Marxist" who had been invited to speak to a conference, the attendees had standing to challenge this decision on First Amendment grounds. But even under those circumstances, the standard of review is whether the executive branch gave a “‘facially legitimate and bona fide’ reason for its action.” And if the executive meets this burden, the Court’s inquiry is over.

Because the Proclamation says nothing about religion and “is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” the Court held that the regulation did not violate the Establishment Clause.    

The plaintiffs and Justice Sotomayor's dissenting opinion tried to make the proclamation about religious intolerance. Justice Sotomayor's and the plaintiffs’ arguments are dishonest. They focused on the fact that five of the seven countries affected are majority Muslim. The Court, however, exposed this dishonest argument by noting that the proclamation covers just 8% of the world's Muslim population, and the majority-Muslim countries included in this proclamation had already been determined to be national security risks by Congress and previous administrations. Furthermore, in addition to Iraq being removed from the list of covered countries, Sudan and Chad—both majority-Muslim countries—have been removed from the list. As a last-ditch effort, Justice Sotomayor invoked the specter of Korematsu v. United States. This effort serves only to highlight the intellectual dishonesty in the justice’s poorly reasoned dissent. The Court exposed the intellectually bankrupt dissent: “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’” The Court pointed out that “the forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.” The proclamation at issue in Trump v. Hawaii, affected individuals immigrating to the United States. Here, the Court reached the correct decision. 

Tennessee’s Supreme Court rejects an attempt to regulate lawyer speech!

The Tennessee Bar Association and the Tennessee Board of Professional Responsibility submitted to the Tennessee Supreme Court a proposal to amend the Rules of Professional Conduct by adopting a new Rule 8.4(g). The Court received over 400 responses to its request for comments on proposed Rule 8.4(g). Many folks raised the First Amendment as their primary objection.

The proposed rule would make it

 professional misconduct for a lawyer to engage in conduct that the

 lawyer knows or reasonably should know is harassment or discrimination on the   basis of race, sex, religion, national origin, ethnicity, disability, age, sexual         orientation, gender identity, marital status, or socioeconomic status in conduct         related to the practice of law.

Proposed Rule 8.4(g) (emphasis added). The highlighted language is the most objectionable part of this proposed rule. First, the proposal would change the current rule from “knowingly” manifesting bias or prejudice to a negligence standard of “reasonably should know.” The TBA and BPR’s attempt to lower the standard necessary to establish a violation leads to the second point, i.e., broadening the rule’s reach.

Under the current rule, to violate the rule, one has to engage in conduct that is “prejudicial to the administration of justice.” The TBA and BPR, however, wanted to drop this traditional limit; thereby leaving lawyers to guess if their conduct, which does not prejudice “the administration of justice,” would result in disciplinary action.

Related to this is the expansion of regulated conduct. The current rule applies to a lawyer’s conduct “in the course of representing a client.” The TBA and the BPR sought to expand this to “conduct related to the practice of law.” The broad definition of this conduct includes “representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” Proposed Rule 8.4(g) Comment [4]. It goes well beyond “in the course of representing a client.”

These proposed changes raised serious First Amendment problems. For example, a lawyer is invited to speak at her church in response to a court decision expanding the reach of Title VII. If her comments take issue with the court’s decision, has she violated this rule? She’s speaking as a lawyer on a law-related matter. Or a lawyer is meeting a potential client at a local restaurant and the lawyer and this potential client have similar views on the changes in the law regarding the broadening of anti-discrimination statutes to cover those who identify as a sex other than the sex on the birth certificate. Their waiter was born a male but is in the middle of the sex-reassignment process, and she is offended by what she’s heard. Has the lawyer violated the proposed rule? The drafters of the rule offer that it does not affect speech or conduct protected by the First Amendment. This is a truism.  

 And it is a ploy of the speech-code crowd to fool others into believing that they are friendly to free speech. The speech-code crowd only wants to protect speech they agree with. It is sad that the TBA and BPR have joined the ABA in its quest to silence those with whom they disagree. If, as the TBA and BPR say, they don't want to regulate free speech, then the current rule works just fine. 

The Tennessee Supreme Court's rejection of this proposed rule is a victory for those who still believe that free speech and debate are good for a free society. 

Does the law require that Justice Ginsburg recuse herself in Trump v. Int'l Refugee Assistance Project?

To answer this question, it helps to look at how Justice Scalia handled recusal and  the relevant statute's language. Over 13 years ago, the Sierra Club wanted Scalia to recuse himself in Cheney v. United States District Court. And before that, the issue of recusal came up in Elk Grove Unified School District v. Newdow. In Cheney, Scalia did not recuse himself, but he did in Elk Grove. 

Background

              Cheney v. United States District Court

Early in his presidency, Geo. W. Bush established the National Energy Policy Development Group with Vice President Cheney as its head. This committee's broad purpose was to advise the president on energy policy. The Federal Advisory Committee Act requires that such committees conduct their business in public, unless they are composed exclusively of federal officials or employees,  The Sierra Club and Judicial Watch argued that energy industry lobbyists were members because they were so deeply involved in the committee's work; if true, the committee had to conduct its business in public. The Sierra Club and Judicial Watch wanted information about the committee to determine the extent to which private individuals were involved in the committee's work. Both the District Court and the D.C. Circuit Court concluded that the committee must turn over the information. The vice president petitioned the Supreme Court of the United States to review the case, and SCOTUS agreed to review it. The vice president was not a party in his individual capacity--the lawsuit wasn't against him personally--but only in his official capacity as vice president. 

The Sierra Club wanted Justice Scalia to recuse himself because of his friendship with Vice President Cheney and because the two had gone on a hunting trip together in 2003.

               Because Cheney was sued only in his official capacity
               as head of the committee and the lawsuit only
               challenged an administrative decision, the Cheney-
               Scalia friendship did not require recusal.

 Cheney and Scalia had been friends since their time in the Ford Administration. In responding to the recusal motion, Justice Scalia filed a memorandum in which he described the hunting trip. The gist is that Scalia's friend Wallace Carline admired Cheney; this led Scalia to ask Mr. Carline if he would like for Scalia to invite the vice president on their next hunting trip. Mr. Carline liked the idea, so Scalia extended the invitation and Cheney accepted. Cheney invited Scalia, a son, and Scalia's son-in-law to fly on the vice president's plane--if space allowed--to Louisiana for the hunting trip. This all occurred before the Court agreed to hear the case. 

The hunting party comprised 13 individuals. The hunters slept two or three to a room with the vice president having his own quarters. The vice president's security detail and a few members of Mr. Carline's staff were there too. Scalia and Cheney never hunted in the same blind, nor were they ever alone except, in Scalia's words, "perhaps, for instances so brief and unintentional that I would not recall them." Cheney left after two days; Scalia, his son, and son-in-law stayed longer and flew back to D.C. on a commercial airline. The motion to recuse must be based on these facts, not on facts surmised by others.

In deciding the issue, Scalia was guided, in part, by the Court's Statement of Recusal Policy; a policy that dated back to 1993. Because the Court is a nine-member court, the policy cautions against recusal "out of an excess of caution." The reason is simple: a single recusal would leave the Court with only eight members to decide the case. Because an evenly divided Court would result in the lower court's decision being unchanged, recusal would, as Justice Scalia wrote, be a vote against the petitioner. This led Scalia to reject Sierra Club's argument that any doubts about recusal should be resolved in favor of recusal. 

The essence of Sierra Club's argument was that Scalia should recuse himself because he and Cheney were friends. While it is true that if a friend's liberty or fortune is at stake recusal is the correct route, but friendship alone is not sufficient. Justice Scalia cited many examples from history where justices were personal friends with presidents. Justice Douglas, for example, regularly played poker with FDR. And, as Justice Scalia noted, most justices are nominated to the Court because of connections to high-ranking individuals in an administration. It would be quite a burden if friendship alone were enough. 

Another important factor, as noted above, is that Cheney was a party only as head of the committee. In other words, he was not being sued as Richard Cheney. If the head of the committee changed during the pendency of the suit, the new committee head would automatically be substituted in place of Cheney. And the issue in the case was not about Cheney, but rather an administrative decision. In such cases, it would be absurd to require recusal. Hence, Scalia rejected Sierra Club's motion. 

              Elk Grove Unified School District v. Newdow

The issue in Elk Grove Unified School District v. Newdow, was whether reciting "under God" in the Pledge of Allegiance at the beginning of the school day violated the Constitution. While the Court was considering whether to grant review, Scalia commented on the Ninth Circuit's decision in the case. He said, among other things, "The new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat." Biskupic, An American Original at p. 267. Newdow asked Scalia to recuse himself from the Court's decision whether to review the case. In the Court's order granting review, the Court merely noted that Justice Scalia took no part in the decision. Scalia obviously thought that his comments set up a situation in which his "impartiality might reasonably be questioned," or that he had a "personal prejudice concerning a party." These are two of the bases in the statute that require recusal. But, as is the usual case, Scalia did not explain why he recused himself.

              28 U.S.C. § 455

The statute sets out the grounds for recusal. One part applicable here requires that "[a]ny justice . . . disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The other applicable part requires recusal if the judge "has a personal bias or prejudice concerning a party."

Because Trump is a party only in his official capacity and the case challenges only a government policy, the law does not require that Ruth Bader Ginsburg recuse herself from participating in Trump v. Int'l Refugee Assistance Project.

At the end of June, SCOTUS granted review in Trump v. Int'l Refugee Assistance Project . Fifty-eight members of Congress sent a letter to Justice Ginsburg demanding that she recuse herself from the case. First, a letter from members of Congress is not how recusal works. A party to the case must file a motion seeking recusal. Unless a party files a motion, Ginsburg won't even address the matter. 

Second, President Trump is a party in his official capacity just as Cheney was in Cheney v. United States District Court. (This is an important distinction lost on at least one law professor. Here, Lumen Mulligan associate dean at the University of Kansas School of Law shows his misunderstanding of the distinction.) 

How does this apply to Justice Ginsburg and Trump v. Int'l Refugee Assistance Project ? Here--just as was the case in the Cheney matter--Trump is sued in his capacity as president, i.e., his official capacity. And this case is about a policy of the federal government. Because Trump is a party in his capacity as president, Justice Ginsburg's dislike of Trump the businessman, Trump the candidate, Trump the Presbyterian, Trump the husband, etc. doesn't matter for purposes of recusal in this case. Justice Ginsburg has not made any public statements about her opinion of the policy, she's only expressed dislike of Donald Trump. 

Does Justice Ginsburg have a predisposition regarding the policy at issue in Trump v. Int'l Refugee Assistance Project? Doubtless she does. But having a predisposition about the legal issues does not require recusal. As Scalia wrote in Republican Party of Minnesota v. White, "a judge's lack of predisposition regarding the relevant legal issues in a case has never been thought of as a necessary component of equal justice, and with good reason . . . [because] it is virtually impossible to find a judge who does not have preconceptions about the law."

Conclusion

Justice Ginsburg should exercise discretion and avoid attacking the president. But, for the following reasons, her behavior does not require recusal:

• Trump is not sued in his personal or individual capacity;
• The case is about a government policy, not about Trump's behavior in his individual capacity;
• Ginsburg's preconceptions about the policy do not require recusal.

    

Who was Joseph Warren?

With Fourth of July coming up, let's take a look at a founder who backed his beliefs in word and deed. Joseph Warren began practicing medicine in Boston at the age of 22--after graduating from Harvard at 14--making him the youngest doctor in Boston. Although the relationship between the colonies, particularly Massachusetts, and Great Britain had been deteriorating for years, it was the public reaction to Great Britain's passage of the Stamp Act   that caused Dr. Warren to join the ranks of the Patriots. 

Great Britain's oppressive treatment of Massachusetts led Samuel Adams to propose committees of correspondence to facilitate communications among the counties and towns of Massachusetts. And Joseph Warren was an early supporter of this idea, which eventually would be used to tie the 13 Colonies together. In November 1772, the Boston Committee of Correspondence produced the Boston Pamphlet. This document comprised three sections: (1) "A State of the Rights of the Colonists and of this Province in particular"; (2) "A List of the Infringements and Violations of those Rights"; and (3) "A Letter of Correspondence with the Other Towns." Samuel Adams was the primary author, and he wrote part one. Dr. Benjamin Church wrote part three. And Joseph Warren wrote part two. 

Dr. Warren listed 12 acts by Great Britain that violated the colonists' rights. These included passing laws without the colonies' consent, imposing taxes on the colonists without their consent, authorizing the military to use the general warrant to enter any house, shop, ship, etc. where the officials suspected that they could find goods for which the taxes had not been paid, and depriving the colonists of the right to trial by jury. Another act opposed by the Boston Committee of Correspondence was Great Britain's using revenue from these illegal taxes to pay colonial officials. The Committee knew that Great Britain's paying these officials would make them more interested in doing King George's bidding than protecting the colonists' rights. This, however, was not the end of Dr. Warren's lists. 

In May 1774, Parliament passed the Massachusetts Government Act as part of the Intolerable Acts--known in Great Britain as the Coercive Acts. The Intolerable Acts were in response to the Sons of Liberty's tea party in Boston Harbor in late 1773. The Massachusetts Government Act effectively voided Massachusetts's Charter, and it reduced Massachusetts to a Crown Colony. In September 1774, almost two years after the Committee's 1772 Boston Pamphlet, Dr. Warren wrote the final version of the Suffolk Resolves. The Suffolk Resolves were the Boston Committee of Correspondence's response to the Intolerable Acts. The Suffolk Resolves set forth 19 objections to Great Britain's treatment of the colonies. 

After the Committee approved the Suffolk Resolves, Dr. Warren dispatched Paul Revere to carry the Resolves to the First Continental Congress then meeting in Philadelphia; he completed the 350-mile journey in five days. The Continental Congress adopted the Suffolk Resolves word for word.

One could rightfully expect that Dr. Warren, having proven himself as a drafter of grievances, might be involved more directly with the Declaration of Independence. But you will search in vain among the names of the 56 signers of the Declaration for Dr. Joseph Warren. Why?

In April 1775, the British were preparing to attack Boston. William Dawes and Paul Revere were given the job of spreading the word when the British made their move. And just as Dr. Warren had done in September 1774 when he sent Revere to Philadelphia with the Suffolk Resolves, he dispatched Dawes and Revere on their rides to warn that the British were coming. And two months later, on June 17, 1775, the Battle of Bunker Hill was fought. The battle was fought mostly on Breeds Hill.

Only a few days before the battle, the Massachusetts Provincial Congress had appointed Dr. Warren as a major general. Dr. Warren, however, was true to his convictions; having protested Great Britain's oppression in speeches and writings, he did not wish to be in command at a safe distance from the battle. So six days after his 34th birthday, Dr. Warren gave up his commission and fought alongside the other volunteer soldiers. Dr. Warren was killed in the battle. And this is why you won't find his name among the signers of the Declaration of Independence. But his spirit surely is.