This Day in Liberal Judicial Activism—August 23

by Ed Whelan

2006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Day for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case. 

Sense and Nonsense on the Texas Transgender Guidance Decision

by Jonathan H. Adler

As Mark Pulliam notes below, a federal district court in Texas threw out the Obama Administration’s guidance directing schools to accommodate transgender students by allowing them to use the facilities (restrooms, lockers, etc.) that conforms with their professed gender identity. As I discuss in this Volokh Conspiracy post, the judge concluded (among other things) that the guidelines were, in effect, a regulation requiring notice-and-comment under the Administrative Procedure Act. The court also concluded that the guidelines conflict with the relevant statutory and regulatory provisions, but the initial conclusion was sufficient to throw out the Administration’s guidance.

The opinion largely dwells on questions of administrative law and statutory interpretation, rather than the more interesting policy issues that pundits would rather debate. This may explain why some of the early coverage is so sloppy or inaccurate. Take, for example, this article by Mark Joseph Stern at Slate.  

Stern characterizes the decision as some sort of power grab, yet inadvertently confirms that the judge was correct to conclude the guidelines are invalid. As Stern notes, the guidelines “would have barred schools that receive federal funding from discriminating against trans and gender-nonconforming students.” If so, that proves the correctness of the court’s ruling, because a guidance document that imposes obligations on the regulated community is not a guidance at all, but a regulation subject to the APA’s procedural requirements. This is Administrative Law 101.

Stern’s sloppiness does not end there, however. In addition to bollixing the relevant deference doctrines, he later claims that the court purported “to halt the implementation of federal guidance in states where an appeals court has already approved the exact same guidance” (emphasis added), referencing the Fourth Circuit’s decision in G.G. v. Gloucester County School Board (which I discussed here and here). While Stern is right to note that aspects of the injunction may be unnecessarily broad, his account is still wrong on multiple levels.

First, the guidelines at issue were not “approved” by the Fourth Circuit; they could not have been. The Fourth Circuit decision came down in April. The guidelines, on the other hand, were not issued until May. (In fact, here’s Stern’s May article about them.) The court also didn’t purport to overrule anything the Fourth Circuit did. It expressly noted that the Fourth Circuit decision has been stayed by the Supreme Court, and invited briefing should the scope of its injunction need to be narrowed so as not to “unnecessarily interfere with litigation currently pending before other federal courts on this subject.”

Obama’s Transgender Edict Enjoined Nationwide by Federal District Court in Texas

by Mark Pulliam

In a 38-page decision dated August 21, but released today, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas issued a nationwide injunction against the Obama administration’s edict — in the form of a “Dear Colleagues” memo — that recipients of federal funds grant access to bathrooms, locker rooms, and showers to transgender individuals.

Texas and twelve other states brought the challenge on May 25. The hearing on plaintiffs’ preliminary injunction motion, filed on August 3, was held on August 12. Judge O’Connor concluded that the Obama administration’s regulation-by-memo failed to comply with the Administrative Procedures Act and contradicted the terms of the statutes it purported to enforce.

Notably, Judge O’Connor declined to follow the Fourth Circuit’s contrary decision in G.G. ex rel Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), noting that the U.S. Supreme Court recalled the Fourth Circuit’s mandate and stayed the preliminary injunction entered by the district court in that case.

Judge O’Connor’s ruling is a significant decision and a complete victory for the plaintiffs. Congratulations are due to Texas attorney general Ken Paxton and his team, who played the lead role in this case.

PA Attorney General Convicted of Perjury, Etc.

by Carrie Severino

It took a while, but Kathleen Kane, Pennsylvania’s disgraced former Attorney General, was convicted last week of multiple criminal charges. The New York Times explains

A jury found Ms. Kane, 50, guilty of nine criminal charges, including perjury and criminal conspiracy, convicting her of leaking grand jury information, and then lying about it, in an effort to discredit a political rival.

Ms. Kane was caught up in a web of scandal and counterscandal, threaded with lewd emails, political rivalries and alleged leaks. It has cost other state officials, including two State Supreme Court justices, their jobs and Ms. Kane her law license, although she has remained on the job as attorney general.

She remained on the job only until Wednesday night, when her resignation took effect.

From the beginning, Kane’s tenure as AG was shot through with political hackery. One of her first moves as AG was to roll over and refuse to defend the state’s marriage law after left-wing activists challenged it in court.

What ultimately brought her down, though, was her decision to shut down the state’s undercover investigation into widespread corruption among Democratic politicians in Philadelphia. As if that weren’t bad enough, Kane tried to defend herself from the ensuing firestorm by slandering the lead prosecutor and agent on the case through strategic leaks of grand jury information. And then she lied to a grand jury about the leaks.

Kane may now be facing prison time, but she says she has no regrets. I doubt that. Either way, resigning may end up being the best decision she ever made as attorney general. 

This Day in Liberal Judicial Activism—August 22

by Ed Whelan

2014— Justice Ruth Bader Ginsburg is becoming quite a Chatty Cathy. In a wide-ranging interview, Ginsburg somehow sees fit to offer her views on all sorts of matters. She reveals, for example, that she assigned the dissent in Schuette v. Coalition to Defend Affirmation Action to Justice Sotomoyor in order to accommodate Sotomayor’s desire to “quell” the “doubts” that some folks on the Left were having about Sotomayor’s “views on affirmative action.” And at the very time that pending certiorari briefs in cases challenging state marriage laws are debating what the Court’s ruling in United States v. Windsor signifies for those cases, Ginsburg volunteers her view that the “main theme” in Justice Kennedy’s previous rulings involving gay rights is “equal dignity,” not federalism. 

This Day in Liberal Judicial Activism—August 20

by Ed Whelan

1985—Extending an error it made two years earlier, the Sixth Circuit (in Policy v. Powell Pressed Steel Co.) distorts ordinary contract principles as it construes a collective bargaining agreement to confer lifetime health-insurance benefits on retirees. Never mind that the agreement contained a provision providing for the continuation of pension benefits, but not of health-insurance benefits, after the expiration of the agreement.

Thirty years later, the Supreme Court will finally put an end to the Sixth Circuit’s presumption (unique among the federal courts of appeals) that collective bargaining agreements confer on retirees a vested right to lifetime benefits. In M&G Polymers v. Tackett, the Court will rule unanimously that such a presumption is incompatible with ordinary principles of contract law.

This Day in Liberal Judicial Activism—August 19

by Ed Whelan

2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth. 

Randy Barnett’s Our Republican Constitution—Part 4

by Ed Whelan

See Parts 1, 2, and 3

Randy Barnett’s Our Republican Constitution culminates in his prescription for how federal courts should apply the Due Process Clauses of the Fifth and Fourteenth Amendments against “irrational and arbitrary” laws enacted by Congress or state legislators, respectively. (The Due Process Clauses protect any person from being deprived “of life, liberty, or property, without due process of law.”)

Barnett contends that these Due Process guarantees mean that any person subject to a law that restricts his life, liberty, or property must have a “fair opportunity to contest whether [that law] is within the ‘proper’ or ‘just power’ of a legislature to enact and therefore carries the obligation of a law.” (P. 228 (emphasis in original).) A law that is “irrational or arbitrary” is by definition “not within the just powers” of a legislature—even if it is enacted through an exercise of a constitutional power. (P. 228.) Further, if a power is being exercised for a just purpose, “we must next ask if the restriction of liberty is necessary to serve” that purpose. “Strict logical necessity is not required,” but “some degree of means-ends fit must be shown.” (P. 231.)

My basic question for Barnett is: Where does all this come from? How, in particular, does it flow from the original-meaning principles that he advocates?

I understand, of course, that Barnett is drawing on his political theory of “individual popular sovereignty,” which I outlined in point 2 of my Part 1 post and which I critiqued in my Part 2 post. But even if that theory were sound, how would it give rise to a judicial power to invalidate laws as beyond the “just power” of a legislature? How do federal courts have authority to determine that a law is unconstitutional simply because it is, in their view, unjust?

Barnett’s answer, I gather, is that the Due Process Clauses somehow can and should be read to incorporate his political theory. One difficulty I have with such an answer is that Barnett’s full account of “individual popular sovereignty” strikes me as a novel creation of his own. (Again, I am not disputing, and instead happily embrace, Barnett’s more modest propositions that our Constitution is founded on a political philosophy of natural rights and reflects the philosophical logic that “first comes rights and then comes government.”)

It’s too much, I acknowledge, to expect Barnett to offer a detailed originalist argument in a book intended for a popular audience. But when Barnett observes that in the early 20th century “[s]tate and federal courts responded to [the] wave of progressive legislation by interpreting the Due Process Clause of the Fourteenth Amendment to require an assessment of the reasonableness of restrictions on the ‘life, liberty, and property’ of individuals” (pp. 124-125), he seems to be describing a judicial innovation rather than a traditional practice. (That impression is reinforced by his statements that the courts “began to require some showing …” and “began to realistically assess…” (p. 125 (emphasis added)).) And Barnett’s apparent argument from necessity—that the ordinary democratic processes are inadequate to vindicate the rights of “prospective flower arrangers, interior decorators, hair braiders, horse massagers, [and] casket makers” (p. 243)—also does not seem the usual stuff of originalism