Supreme Court blocks District Judge's order against border wall construction

In order to obtain a temporary restraining order or a preliminary injunction it is necessary, in the usual formulation, to persuade the court that the applicant for interim relief is likely to succeed on the merits.  That burden applies too when one is seeking to persuade a higher court to stay an order by a judge.  

The psychological effect of obtaining an injunction or an order is that judges granting the order, having declared the likely winner, ise unlikely to change their minds when they have the full record in front of them.  Thus we can expect that the Supreme Court will never block Trump's border wall on the environmental grounds asserted by the Sierra Club.

The environmental group, joined by the ACLU,  challenged Trump's diversion of $2.5 billion in military pay and pension funds to build his wall on the Mexican border.

In Trump v. Sierra Club the United States Supreme Court today upheld the order it issued one year ago staying an junction limiting border wall construction.

As he did a year ago Justice Stephen Breyer dissented, joined by the usual suspects.

Breyer explained last year, in another 5-4 vote, objecting to the majority's grant of a stay, that

If we grant the stay, the Government may begin construction of a border barrier that would cause irreparable harm to the environment and to respondents, according to both respondents and the District Court. The Government’s only response to this claim of irreparable harm is that, if respondents ultimately prevail, the border barrier may be taken down (with what funding, the Government does not say). But this is little comfort because it is not just the barrier, but the construction itself (and presumably its later destruction) that contributes to respondents’ injury. If we instead deny the stay, however, it is the Government that may be irreparably harmed. The Government has represented that, if it is unable to finalize the contracts by September 30, then the funds at issue will be returned to the Treasury and the injunction will have operated, in effect, as a final judgment. Respondents suggest a court could still award the Government relief after an appropriation lapses, though that proposition has yet to be endorsed by this Court. But there is a straightforward way to avoid harm to both the Government and respondents while allowing the litigation to proceed. Allowing the Government to finalize the contracts at issue, but not to begin construction, would alleviate the most pressing harm claimed by the Government ...

The majority instead granted a stay in the now familiar form:

The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005. The District Court’s June 28, 2019 order granting a permanent injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate when the Court enters its judgment.  

The Supreme Court Just Set a Time Bomb to Explode Under President Biden

The Supreme Court Just Set a Time Bomb to Explode Under President Biden

by David R. Lurie // The Daily Beast

In delaying any public release of Donald Trump’s financial records on Thursday, the Supreme Court also handed itself a major victory. The loser could be our democratic system of government. 

The court’s majority in Trump v. Mazars granted the judiciary broad new leeway to decide whether congressional subpoenas against the president will be enforced. The court’s majority found that rigorous judicial oversight is required to ensure that Congress does not harass or overburden presidents with politically motivated demands for information.

The Supreme Court’s Quiet Campaign to Suppress the Vote // David Lurie // The Daily Beast

The Supreme Court’s Quiet Campaign to Suppress the Vote The Daily Beast

by David R. Lurie

Bully Boy Bill Barr is America’s Ultimate Chaos Agent// David Lurie // Daily Beast

The idea of state sovereignty is a founding and corrupting myth in U.S. law and politics.

The founding slave owners made sure to protect their human property.  They left the "all men are created equal" rhetoric aside and built into the constitution two key protections: their voting strength would be enhanced by adding 3/5 of a vote for each person held in bondage; and escapees would be rendered back to their owners by the states according to the Constitution's notorious Article IV Sec. 2 fugitive slave clause.

History's then most deadly war ensued.  The post-war Amendments abolished slavery (13th), promised the equal protection of the laws (14th), and the right to vote just as afforded to white men (15th).

But the post-war Black Codes known as Jim Crow rendered those rights almost a nullity for a century.  Only with Brown v. Board of Education in 1954 was national authority firmly asserted to begin the restoration of the equal justice intended by the post-war amendments.

Since then the Supreme Court has affirmed national authority - with significant exceptions.  The Violence Against Women Act was declared an overreach by the court.  The connection to the empowering commerce clause was too tenuous the Court held.  No thought was given to the idea that the national government was empowered to protect women however it deemed necessary.

Now the Trump/Barr administration has deployed federal forces to Portland - a city that neither sought nor needed their assistance in the view of the elected mayor.

David Lurie discusses the overreach and dangerous precedents that William Barr's Justice Department is setting. - gwc



Bully Boy Bill Barr is America’s Ultimate Chaos Agent

by David R. Lurie // Daily Beast, July 28, 2020

While Donald Trump now grudgingly acknowledges that the coronavirus won’t magically go away, he and his Department of Justice have spent the past months undermining the ability of states to protect the health of their citizens—and Attorney General William Barr has joined the president in undermining the ability of states and cities to maintain public order.

When Barr finally makes his long delayed appearance before Congress on Tuesday, his campaign to undermine state and local governments should take center stage.

Since March, Trump has invoked principles of federalism in a transparent effort to avoid responsibility for combating the outbreak, and thrust that burden on states that lacked the resources or ability to combat an international health crisis. Although Trump’s dumping of responsibility in the laps of 50 governors was a transparent abdication of responsibility, it also had apparent grounding in a conservative ideology of states’ rights that has long dominated the GOP. Barr, however, has discarded that principle entirely as he used a series of legal actions to try and force state and local governments to bend to Trump’s will.

The Constitution lodges the police power, including the primary authority to provide for public welfare, safety and health, in the states. Since the New Deal, conservatives have objected to the so-called federal “administrative state,” which they believe has improperly seized power from the states, particularly in areas involving law enforcement, public welfare and health regulation—largely relying on the federal constitutional authority to regulate interstate commerce.

This states’ rights ideology has long been ineluctably bound up with the Southern resistance to civil rights, a cause the GOP adopted to gain the allegiance of former Dixiecrats, beginning with the presidential candidacy of Barry Goldwater and culminating in the victory of Ronald Reagan.

Chief Justice William Rehnquist, a former Goldwater supporter, wrote a memo in favor of upholding the “separate but equal” doctrine during the Supreme Court’s deliberations on Brown v. Board of Education when he was a young law clerk. In 1995, he authored the court’s decision in U.S. v. Lopez, which nullified a statute criminalizing the possession of firearms in the vicinity of schools. As Rehnquist explained it, such misconduct had an insufficient nexus with interstate commerce, and thus regulating the activity was offensive to federalism: “Under the theories that the Government presents… it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.”

The court later went on to nullify a portion of the Violence Against Women Act, likewise on federalism grounds. Furthermore, while the court narrowly upheld the Affordable Care Act’s health insurance mandate in 2012, Chief Justice John Roberts agreed with the court’s other conservatives that the provision could not be upheld under the Commerce Clause, and instead was valid only as an exercise of Congress’ taxing power.

Accordingly, when, earlier this year, Trump appealed to principles of federalism in attempting to place primary authority for addressing the coronavirus catastrophe on the shoulders of the states, he initially appeared to be implementing the longstanding conservative principle that states should have the responsibility, and autonomy, to regulate public health as part of the police power reserved to them by the Constitution.


But as it turned out, Trump’s actual intention was to offload responsibility on the states, even as he, along with Barr and his Justice Department, assiduously sought to undermine the very state power and authority that Trump claimed to be vindicating. The result was a massive compounding of a public health emergency, and with it the resulting death toll.
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The pandemic is proving the bar exam is unjust and unnecessary. // Slate

The pandemic is proving the bar exam is unjust and unnecessary. Slate

By PILAR MARGARITA HERNÁNDEZ ESCONTRÍAS, J.D.

ACLU Challenges DOJ on Portland federal forces

Saluti, the unroll you asked for: @johnhawkinson: DHS and the Marshal's Service were added today as defendants in INDEX NEWSPAPERS, WOODSTOCK V. PORTLAND… https://t.co/SuveT65BhZ See you soon. 🤖

— Thread Reader App (@threadreaderapp) July 31, 2020

Column: It’s one thing to be aware of systemic injustice. It’s another when you realize your childhood home had a racist covenant. - Chicago Tribune

Column: It’s one thing to be aware of systemic injustice. It’s another when you realize your childhood home had a racist covenant. - Chicago Tribune

Bits and Pieces: Harvard, Hong Kong, and China

Bits and Pieces: Harvard, Hong Kong, and China

by Gordon McKay (former Dean of Harvard College0

On whether U.S. universities that set up operations in China will e able to teach freely.

John Donaldson, a Black Baseball Great, Still Not in the Hall of Fame - The New York Times

Opinion | John Donaldson, a Black Baseball Great, Still Not in the Hall of Fame - The New York Times

Supreme People’s Court’s new guidance on similar case search | Supreme People's Court Monitor

Supreme People’s Court’s new guidance on similar case search | Supreme People's Court Monitor

by Susan Finder [PKU Shenzhen Transnational Law School]


In a blogpost in June, 2019, I flagged a provision in the 5th Five Year Judicial Reform Program that would require Chinese judges to search certain prior cases. That provision has now been implemented in the form of a Supreme People’s Court policy document. On 27 July 2020, the Supreme People’s Court (SPC) issued provisional guidance entitled Guiding Opinions Concerning Strengthening Search for Similar Cases to Unify the Application of Law (关于统一法律适用加强类案检索的指导意见（试行)), to be effective on 31 July. It is not a judicial interpretation. but is guidance intended to make judicial decisions more consistent. The SPC’s Case Management Office appears to have been responsible for drafting it, because “a responsible person” (presumably the head) of that office issued a press release to explain these rules.

It codifies many of the practices of the Chinese courts and imposes some new requirements. It does not mean that China has become a common law legal system. The SPC is approving the practice of using principles derived from prior cases to fill in the gaps in legislation and judicial interpretations.

It also illustrates two larger points–that discrete judicial reforms aimed at more consistent judgment continue to be implemented even as the role of Party leadership and oversight continues to be stressed. It is also an illustration of how long it can take judicial reforms to be implemented.
Case Search Requirements
What are similar cases?

Article 1 defines that–the cases that are already effective and are similar in their basic facts, disputed points, issues of law, etc. (指与待决案件在基本事实、争议焦点、法律适用问题等方面具有相似性，且已经人民法院裁判生效的案件).

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George Wallace stands in the schoolhouse door - Presidential order to integrate students prevails

School integration stymied in Detroit: Elizabeth Warren's brilliant student law review note on Milken v. Bradley

The internet recently surfaced a law review article @SenWarren wrote in critique of the Milliken decision, which bans cross-district remedies for school segregation. https://t.co/7xHF1MMidS

— Peter Piazza (@PeterTPiazza) July 25, 2019

Aaron Burr’s trial and the Constitution’s treason clause - National Constitution Center

There is a lot of talk by Chief Justice Roberts and by dissenting Justice Samuel Alito about the implications of the Aaron Burr treason trial for the Grand Jury subpoena by New York County D.A.  Vance for Donald Trump's financial records.  Here is a short history of the case.

Aaron Burr’s trial and the Constitution’s treason clause - National Constitution Center

NJ Supreme Court bars class action arbitration

Associate Justice Barry Albin - the NJ Supreme Court's most progressive voice
The New Jersey Supreme Court today closed the courthouse doors to two groups of trucking company employees, the New Jersey Law Journal today reported.

In New Prime Inc. v. Oliveira 139 S. Ct. 532, 539 (2019) the Supreme Court opened the door a crack for workers seeking justice.  It found in an opinion by Neil Gorsuch that the 9 USC 1 of the Federal Arbitration Act broadly excluded transportation workers from its scope.  Both salaried and hourly workers and independent contractors are now treated as employees and therefore not covered by the FAA which preempts of state law.  In two cases consolidated for review New Jersey transportation workers sought to enforce state wage and hour laws - seeking overtime pay, etc.  New Prime exempted them from the Federal Arbitration Act.  But the New Jersey Supreme Court has found that workers knowingly waived their rights both to go to court and to a class action remedy in any forum. They are compelled to pursue individual arbitration, a costly and generally impractical remedy for modest claims.

In Arafa v. Health Express the court found the employment agreement called for arbitration under the FAA.  But since the FAA now does not extend to such pharmaceutical delivery drivers [and may not in the companion Colon case] the workers' wage and hour claims defaulted to the New Jersey Arbitration Act although it was not mentioned in the employment contract.  

By acceptance of the terms of employment the workers had also "knowingly and voluntarily" waived their right to arbitrate on a class-wide basis.  Associate Justice Albin was the sole dissenter on the class action issue.  He embraced the New Jersey precedent in  Muhammad v. County Bank of Rehoboth Beach, DE, 189 N.J. 1 (2006), in which the Court found unconscionable a class-arbitration waiver embedded in a consumer contract of adhesion.  

While the majority did not overrule the Muhammad case its finding that the waiver was voluntary and knowing meant that Muhammad did not apply here.
The only solution available now for New Jersey workers would be a legislative fix that clarified New Jersey contract law to exclude transportation workers who in the "gig economy" are powerless or give workers an effective right to opt out of mandatory arbitration provisions in contracts of employment.

No Judicial Authority in Challenge to Asylum Policies, Feds Tell Judge

No Judicial Authority in Challenge to Asylum Policies, Feds Tell Judge  Courthouse News

PORTLAND, Ore. (CN) — The Trump administration told a federal judge Tuesday that there is no legally permissible way for immigrant advocates to challenge what they say is a biased system that, in some jurisdictions, results in fewer than 2% of asylum seekers being allowed to remain in the United States.

Las Americas Immigrant Advocacy Center and other groups including the Southern Poverty Law Center sued the government this past December, claiming the Trump administration’s immigration policies imposed arbitrary timelines that forced judges — all resulting in outcomes in line with the administration’s anti-immigrant animus. The groups said the policies prevent them from providing adequate legal representation to the immigrants they serve and violate laws imposed by Congress.

“In the immigration courts, the tradition of judicial independence has been turned upside down,” the lawsuit states. “Systemic dysfunction and anti-immigrant animus create a Kafkaesque reality where prosecution merges with judging and the ultimate goal is deportation rather than fair adjudication.”

In a hearing Tuesday on the government’s motion to dismiss, Trump administration attorneys said no court can exercise oversight over such policies — even if they are alleged to be illegal. Instead, Assistant U.S. Attorney Brian Ward said immigration cases must be appealed on an individual basis.

That was a route that the advocacy groups called wholly inadequate, as it would not result in the “systemic review” they seek.

U.S. District Judge Karin J. Immergut had questions for Ward. 

“If any administration, now or in the future, any administration adopts policies that violate the statutes, is that reviewable?” Judge Immergut asked. “Assuming the plaintiffs have established that there is some harm to their organization’s resources, because the administration has implemented policies that violate the intention of Congress — let’s just assume that’s true — what would be the recourse? Somehow there’s no review to those claims?”