Friday, September 17, 2021

In Torture Case, No Secrets Left to Protect?

            Abu Zubaydah, wrongly suspected of being an Islamic terrorist, was tortured cruelly and secretly two decades ago at a Central Intelligence Agency (CIA) black site in Poland. The details of his torture – waterboarding and half a dozen other “enhanced interrogation techniques” – have been laid out in a Senate Intelligence Committee report, a federal court opinion, and extensive news media coverage.

            Despite all that publicity, the government is now invoking the “state secrets privilege” before the Supreme Court in an effort to prevent Zubaydah’s lawyers from gathering sworn testimony from the two CIA contractors who designed the interrogation techniques used for a period of time in the CIA’s now discredited detention and interrogation program.

            The justices will hear oral arguments in the case, United States v. Zubaydah, on Wednesday, Oct. 6, two days after the opening of the 2021 term. A government lawyer will argue, implausibly, that it is immaterial that the “secrets” have been reported officially and unofficially in the United States and worldwide for more than a decade.   

            Pakistani authorities cooperating with the CIA captured Zubaydah in Pakistan in March 2002 based on the mistaken assumption that he was a high-ranking member of al Qaeda. He was taken to the CIA’s black site in Poland, held there for nine months, and was subjected to waterboarding more than eighty times and to other torture-like techniques developed by two psychologists, James Mitchell and Bruce Jessen, who were paid $80 million for their work in developing and implementing the techniques.

Mitchell and Jessen, who were doing business as Mitchell Jessen Associates in Spokane, Washington, based the so-called “enhanced interrogation techniques” on their work in training Air Force pilots and other U.S. service members on resistance to the enemy if captured.

            Zubaydah was transferred in September 2003 to the prison camp that the Bush administration established for “enemy combatants” at the Guantanamo Bay Naval Base in Cuba. He is still being held at Guantanamo today even though the Senate Intelligence Committee’s 2014 report on the CIA program concluded that his designation as a high-ranking enemy terrorist was “erroneous.”

            While Zubaydah was held in Guantanamo, Margulies sued Poland before the European Court on Human Rights seeking damages for the Polish government’s role in Zubaydah’s detention and interrogation. That court ordered Poland in 2014 to pay Zubaydah and a second detainee 100,000 Euros each for having exposed them to the risk of torture through its complicity in the CIA’s interrogation program.

            The current Supreme Court case stems from a legal move in 2018 by Zubaydah’s lawyer, Cornell law professor Joseph Margulies, asking a federal judge in Yakima, Washington, to issue a subpoena for Mitchell and Jessen for testimony to be used in a second proceeding against Poland pending before the European tribunal. U.S. District Court Judge Justin Quackenbush initially granted Margulies’ request, but he quashed the subpoena after the Trump administration raised a “state secrets privilege” objection.

            On appeal, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held on September 18, 2019, that Quackenbush should not have quashed the subpoena. The appeals court instead remanded the case with instructions for Quackenbush to redact any testimony specifically found to expose national security secrets.

            The lame-duck Trump administration asked the Supreme Court to review that decision in a petition for certiorari filed on December 17, 2020. The administration argued that discovery would risk exposing  “classified information” and contended that previous unofficial disclosure of the information did not supersede the state secrets privilege.

            Margulies countered the government’s petition by stressing that the existence of the covert CIA facility, now closed, was “already a matter of public record” and Poland’s cooperation was “no secret at all.” 

            The Biden administration reaffirmed the government’s earlier position in a reply brief filed on March 4, 2021, by the acting solicitor general, Elizabeth Prelogar. The Court granted certiorari seven weeks later, on April 26. More than a dozen civil liberties and human rights organizations filed amicus briefs over the summer urging the justices to allow the limited discovery that the Ninth Circuit panel had ordered.

            In one of those briefs, David Schulz, a lawyer with the Media Freedom and Information Access Clinic at Yale Law School, argued aptly that the Court “should not expand the state secrets privilege to shield discussion of publicly established facts.” Courts, Schulz added, “should not defer to the executive in deciding whether a fact is secret.”

            In another of the amicus briefs, Physicians for Human Rights and several other professional associations argue that Mitchell and Jessen violated ethical standards and that transparency about their roles is “paramount for the mental health profession and society at large.”

            The complete history of this shameful episode has yet to be written. The government may have no interest in a full history, but the Supreme Court owes it to future generations now to allow one of the torture victims to put the architects of his abusive treatment under oath to get a more complete record of their foul deeds.

            It is worth noting that seventy-seven years ago, the Court wrongly deferred to the government’s ill-founded claims about national security in upholding the internment of Japanese Americans during World War II. The decision in Korematsu v. United States (1944) is a stain on the Court’s record, but to its credit the Court five years ago pronounced the decision “gravely wrong” and “overruled by history.” With 20/20 hindsight, the Court ought not make a similar mistake again.





Saturday, September 11, 2021

Justices' Misplaced Priorities in Reviewing Capital Cases

             John Henry Ramirez committed a senseless and savage murder in Corpus Christi, Texas, in 2004 when he was twenty years old. He killed a convenience store clerk by stabbing him more than two dozen times and then robbing him of the paltry sum of $1.25.

            Nothing about Ramirez’s offense or the trial and death sentence four years later cries out for special consideration in the courts. Even so, the Supreme Court granted Ramirez a reprieve on Wednesday [Sept. 8] based solely on a religious freedom claim that he is entitled to be ministered to by his spiritual adviser as he is being put to death.

            The justices granted Ramirez a stay of execution on Wednesday night, three hours after the scheduled start of the lethal injection protocol. Along with the stay of execution, the Court also agreed to hear Ramirez’s substantive appeal in Ramirez v. Collier that the state must allow his spiritual adviser to lay hands on him and pray aloud inside the execution chamber once the execution begins.

            As an opponent of capital punishment, this writer cannot begrudge Ramirez the reprieve that the Court granted last week. But the justices’ solicitude for Ramirez’s plea is in stark contrast with the justices’ usual indifference toward pleas from death row inmates based on claimed legal errors in their convictions or sentences.

            As one example, the Court refused on April 19 to hear Frederick Whatley’s effort to challenge the death sentence he received in Georgia for killing a liquor store clerk during an armed robbery. Whatley asked the justices to review his sentence because he had been shackled with leg irons while testifying in his capital sentencing hearing. Dissenting from the Court’s refusal to hear the case in Whatley v. Warden, Justice Sonia Sotomayor argued that the shackling was “unnecessary” and “plainly prejudicial” based on the Court’s precedents and evident grounds for finding the death sentence unconstitutional.

            Sotomayor had dissented three months earlier from the Court’s order in United States v. Higgs (January 15) that brushed aside questions about the lethal injection protocols that the federal government was using as it resumed federal executions after a seventeen-year hiatus.

            Referring to a succession of cases, Sotomayor minced no words in complaining. “This Court has consistently rejected inmates’ credible claims for relief," she wrote. "The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing.”

            Earlier, Sotomayor and Kagan had joined in dissent when the Court refused to hear Alfred Bourgeois’ effort to avoid execution for the killing of his infant daughter based on an intellectual disability defense. The majority in Bourgeois v. Watson (December 12, 2020) refused to hear the case on the ground that Bourgeois could not raise the issue a second time after a lower federal court had rejected the defense.

            “Bourgeois presents a serious question that is likely to recur,” Sotomayor wrote in dissenting from the denial of certiorari. “Waiting to grant certiorari may mean permitting the illegal execution of people with intellectual disabilities.”

            Sotomayor dissented again, along with Breyer and Kagan, when the Court refused in Johnson v. Precythe (May 24) to consider an Eighth Amendment challenge brought by a Missouri inmate, Ernest Johnson, who claimed that because of a brain tumor, he would suffer “excruciating seizures” if put to death by lethal injection of the drug pentobarbital. Sotomayor argued that the federal appeals court that rejected Johnson’s plea had abused discretion by refusing permission for him amend his appeal. “We should not countenance the infliction of cruel and unusual punishment simply for the sake of expediency,” she wrote.

            The stay of execution for Ramirez marked the second time this year that the Court had granted a reprieve for a death row prisoner based on a religious freedom claim. The Court’s ruling in Dunn v. Smith (February 6) effectively upheld a ruling by the Eleventh Circuit that Alabama could not execute inmate Willie Smith without granting his last wish to have his pastor with him during the execution.

            Four justices – Kagan, Breyer, Sotomayor, and Barrett – joined in an opinion decrying Alabama’s policy of leaving inmates to die without spiritual attendance. “Alabama’s policy,” Kagan wrote, “substantially burdens Smith’s exercise of religion.”

            With that opinion in the books, it would have been inconsistent at the least for the Court last week to have denied Ramirez the solace of his spiritual adviser during the planned execution. By granting certiorari in Ramirez’s case, the Court is now preparing to lay down guidelines for states to follow when a condemned prisoner asks for a chaplain at his side.  

            In Ramirez’s case, Texas argued that his request for his spiritual adviser’s presence would jeopardize security and detract from the decorum of the execution. In the Alabama case, Kagan rejected that concern. “[P]ast practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber,” she wrote.

            After considering Ramirez’s religious freedom claim, the justices would do well to give just as much attention to their responsibility to guard against legal errors in capital trials and sentencings rather than brush those issues aside.

Saturday, September 4, 2021

Supreme Court Yields to Domestic Enemies in Texas

             Five Supreme Court justices labored up to the midnight hour on Tuesday night to produce a tortured legal opinion allowing the state of Texas to nullify reproductive rights for the state’s 14 million women.

            Anyone reading the unsigned opinion in Whole Woman’s Health v. Jackson will look in vain for the reason why the five justices concluded that they cannot enforce the U.S. Constitution and the Court’s own decisions in the country’s second most populous state.

            Instead, the five justices – Thomas, Alito, Gorsuch, Kavanaugh, and Barrett – simply threw up their hands when facing “complex and novel antecedent procedural questions” about the decision by Texas legislators to deputize private citizens to enforce a blatantly unconstitutional law prohibiting abortions as early as the sixth week of pregnancy.

            These self-styled conservative justices did not flinch when confronted with the truly Orwellian plan that Texas’s nullificationist legislators devised to secede from the United States’ constitutional republic.

            Texas’s plan is “Big Brother” on steroids. It offers nosy anti-abortion zealots a bounty of at least $10,000 for suing anyone who aids or abets a woman in getting an abortion legal in 49 states but not in Texas. The aiders and abettors could be the Uber driver or the friend who takes the woman to the nearby abortion clinic. There is nothing conservative about this scheme; it is instead radically totalitarian—un-American.

            In her dissenting opinion, Sotomayor is quite correct to say that “a majority of Justices have opted to bury their heads in the sand.” The ruling, she went on to say, “rewards tactics designed to avoid judicial review. . . .”

            In his dissenting opinion, Chief Justice Roberts made the same point. The law, he explained, seeks “to insulate the State from responsibility for implementing and enforcing the regulatory regime.”

            The law purportedly bars any state officials from enforcing the law, but any enforcement necessarily depends on judges in Texas’s courts. For that reason, the women’s clinics challenging the law named one state judge as the defendant—representative of the entirety of the state’s judiciary.

            For seventy years, ever since Shelly v. Kraemer (1948), state judges have been prohibited from enforcing racially restrictive covenants. There is no evident reason why the Supreme Court cannot similarly prohibit Texas’s judges from enforcing this blatantly unconstitutional law.

            In their majority opinion, the five conservatives indulged the fiction that it was “unclear” whether the law would be enforced. In his dissenting opinion, Justice Stephen Breyer answered by noting that the Court in previous rulings had allowed “pre-enforcement challenges” in cases in which the threatened harm was less serious and less clear.

            Breyer also noted the edict from a prior Supreme Court decision, Planned Parenthood v. Danforth (1976), that “a State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”

            Admittedly, the majority specified that they were not passing on the constitutionality of the law and stated that legal challenges could proceed in state courts. It is a curious inversion of constitutional law, however, for the Supreme Court to pass the buck to state court judges to enforce “the supreme law of the land.”

            With four separate dissenting opinions, it is telling that none of the five justices in the majority took the opportunity to write a concurrence to elaborate or to answer the dissenters. Indeed, what could they have said: “This isn’t as bad as it looks.”

            On the ground in Texas, however, it appears to be as bad as it looks. Waiting rooms in abortion clinics emptied at the stroke of midnight on Wednesday, as the clinics’ staffs explained in frustration that they would be complying with the law.

In her opinion, Sotomayor noted the likely effects. “[T]he Act,” she noted, “immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close.”

            In her dissenting opinion, Justice Elena Kagan made the added point that the ruling was “emblematic of too much of this Court’s shadow docket decisionmaking – which every day becomes more unreasoned, inconsistent, and impossible to defend.” And, indeed, none of the justices in the majority bothered to try.

            Perhaps those five have already decided to vote to overrule Roe v. Wade in the Mississippi case slated for oral arguments in December and decision by the end of the term. So, they may be asking themselves, why not let Texas have its way now?

            The entire episode brings to mind Justice Robert Jackson’s famous aphorism acknowledging the risk of error at One First Street. “We are not final because we are infallible,” Jackson wrote, “but we are infallible only because we are final.”

            For true constitutionalists, the hope remains that the Court’s tortured reasoning is not the final word for women’s rights in Texas. Indeed, in his opinion, Roberts envisioned that the Court will revisit the issues later after “full briefing and oral argument” and consider “whether interim relief is appropriate should enforcement of the law be allowed below.” 

            In other words, the buck stops down there, not here. Compare, however, the justices’ solemn oath to “support and defend the Constitution of the United States against all enemies foreign and domestic . .  .” (emphasis added).


Sunday, August 29, 2021

Court Torpedoes Biden Policies on Border, Health

           The Supreme Court threw judicial restraint out the window last week [Aug. 24-26] with hastily considered decisions that torpedoed Biden administration policies on border security and public health. The rulings in two “shadow docket” cases, issued without full briefing or oral argument, forced the administration to reinstitute the so-called “remain in Mexico” policy for asylum applicants and scrapped the administration’s policy to protect financially strapped tenants from evictions during the COVID-19 pandemic.

            Elections have consequences, it is often said, but apparently not when the unelected Supreme Court takes charge of contentious policy issues. The Biden administration’s O-for-two batting average in its first shadow docket cases is in stark contrast to the Trump administration’s record of prevailing in two-thirds of the unprecedented number of emergency applications that Trump’s lawyers brought to the Court over a four-year period.

            Chief Justice Roberts may believe that the justices shed their partisan backgrounds after donning their black robes, but the record of the Republican-majority Court strongly suggests the opposite. As one telling example, the nine justices split precisely along partisan lines in Alabama Ass’n of Realtors v. Health and Human Services on a straightforward question of statutory interpretation in striking down the CDC’s moratorium on evictions in areas with high incidence of COVID transmission.

            In issuing the moratorium, the CDC relied on a broadly phrased grant of authority in a public health statute “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases . . .”

            The code section’s opening sentence is followed by a second sentence that lists fumigation, pest extermination, and destruction of infected animals or articles as some of the steps authorized. The six Republican-appointed justices who provided the votes for the unsigned decision construed that list to limit the permissible steps, while three Democratic-appointed justices in dissent applied a different maxim of statutory construction to reach the opposite conclusion that the list was illustrative, not exhaustive.

Writing for the three liberal justices, Breyer noted the historical precedent that New York City had imposed limits on evictions at the height of the Spanish flu epidemic. “If Congress

had meant to exclude these types of measures from its broad grant of authority,” Breyer reasoned, “it likely would have said so.”

            In short, a “plain text” approach to the statute in question could have supported either of the two possible outcomes in the case. The Court’s majority – presumably, the six Republican-appointed conservatives – resolved the question by finding that the “balance of equities” favored the landlords’ finances over the tenants’ health and the government’s interest in limiting community spread.

            To be clear, the choice between those two turned not on law, but on policy. In a tweet, Eric Segall, a law professor at Georgia State University, aptly suggested that the Court “should stay out of policy disputes and stay in its lane.”

Liberal justices were oddly silent two days earlier when the Court effectively forced the Biden administration to adopt a Trump-era policy – misleadingly labeled as “migrant protection protocols” -- to force asylum applicants to wait in Mexico while authorities in the United States consider their applications.

The issue in Biden v. Texas et al. was whether how far the Biden administration needed to go in elaborating the reasons for rescinding the Trump administration’s policy on asylum applicants. A Trump-appointed federal judge in Texas agreed with the red states challenging the administration that Biden’s Department of Homeland Security had been “arbitrary and capricious” in rescinding the policy.

In fact, DHS secretary Alejandro Mayorkas had written a seven-page memorandum detailing the reasons for his decision—specifically, that the program was unjustified by the resources required to implement it and incompatible with the  administration’s border strategy and foreign-policy objectives. Judge Matthew Kacsymaryk found Mayorkas’s reasons inadequate and ordered the administration to reinstitute the disfavored policy.

The administration asked Kacsymaryk to delay the injunction, but he refused. The federal appeals court in Texas similarly refused to stay the ruling to give the administration time to develop an orderly plan to restart a policy suspended seven months earlier and unenforced for Trump’s final months in office.

At the Supreme Court, the administration quoted an assistant DHS secretary as saying that it would be “near impossible” to re-establish the policy by the deadline that the judge had set. The administration also quoted a State Department official as warning that resumption of the policy would create “a humanitarian and diplomatic emergency.”

The Trump administration had come to the Court in eleven cases with similar pleas to get out from under adverse rulings in lower courts. And each time the Court obliged.     But the Court declined to give the same consideration to a Democratic president, elected with a popular vote majority.

Instead, the Court refused the administration’s plea with a single paragraph that found the administration was unlikely to show that it had not been “arbitrary and capricious” in rescinding the previous policy. Others have written at greater length than allowed here about the irony of the Court’s decision to take over immigration policy, an area traditionally left to the executive branch, not the courts. Here, as one example, is Ian Milhiser’s excellent analysis.


Sunday, August 22, 2021

More Transparency Urged for 'Shadow Docket'

             With the Supreme Court on recess and First Monday still six weeks away, there was no news from One First Street last week until the evacuation of the building after the Capitol Hill bomb scare on Thursday [Aug. 19]. The Supreme Court press corps was stirred into action late Friday night [Aug. 20], however, after new “shadow docket” filings in two long running disputes over the Trump administration’s “remain in Mexico” policy and the Biden administration’s “eviction moratorium.”

            The reporters still on watch that night quickly produced stories on the Biden administration’s effort to delay a federal district court’s order that it reinstitute Trump’s “remain in Mexico” policy for asylum applicants. The administration’s filing in Biden et al. v. Texas et al. (21A21), asked the Court to stay the order issued by a Trump-appointed judge in Texas even though a three-judge Fifth Circuit panel had rejected the government’s application for a stay just one day earlier.

            The reporters also had to turn out instant coverage of the latest plea by landlords seeking to block the eviction moratorium ordered by the Centers for Disease Control as an emergency pandemic measure. The Alabama Association of Realtors was asking the Court to lift a district court judge’s decision to stay his ruling against the moratorium pending the government’s appeal; a D.C. Circuit panel refused to lift the stay, prompting the realtors’ group to ask again at the Supreme Court in a filing called Alabama Ass’n of Realtors v. Dep’t of Health and Human Services (21A23).

            The so-called “shadow docket,” an obscure area of Supreme Court practice until six years ago, gained increased attention over the past four years as the Trump administration succeeded in using the procedures in a succession of contentious disputes to rescue the government from adverse rulings by lower federal courts. The administration succeeded, for example, in clearing the way for federal executions for the first time in seventeen years by persuading the justices to stay lower court decisions that had blocked the lethal injection protocol the government planned to use.

            Credit for first raising concerns about the “shadow docket” goes to William Baude, a law professor at the University of Chicago and former Supreme Court law clerk, who coined the phrase in an op-ed published in The New York Times on Feb. 3, 2015, under the headline “The Supreme Court’s Secret Decisions.” Baude illustrated his concern about the obscurity surrounding the procedures by citing what he depicted as inconsistent decisions in advance of the 2014 election in regard to voter ID laws enacted in two states: Wisconsin and Texas. Baude noted that the Court had blocked the Wisconsin law but had allowed Texas to implement a similar measure, without an explanation in either of the rulings.

            Stephen Vladeck, a law professor at the University of Texas in Austin, added to the concern over the past year by compiling the Trump administration’s unprecedented use of shadow docket procedures as a frequent litigation strategy after adverse rulings in lower federal courts. Vladeck’s list showed forty-one applications for emergency relief from the Court during Trump’s four-year presidency, compared to only eight such applications in the sixteen years of the Bush and Obama presidencies.

            With its fortified conservative majority, the Court rewarded the Trump administration by granting applications in full in twenty-four instances and in part in four others: for an overall success rate of 70 percent, according to Vladeck’s count. The administration’s success in shadow docket cases may have played a part in encouraging houses of worship to use the same procedure to bring “free exercise” challenges to the Court to try to nullify pandemic-related limits on attendance at worship services imposed by governors in several states. The Court’s divided decisions in a trio of

            The Court’s divided decisions in a trio of such cases during the 2020 term struck down the restrictions on the ground that they allowed larger crowds at commercial establishments than at worship services. Together, the three decisions appear to have established a new precedent to make it easier for religious organizations to challenge laws or regulations that have incidental effects on religious practices.

            Testifying to a House Judiciary subcommittee on Feb. 21, Vladeck criticized the increased use of shadow docket procedures compared to the more thorough consideration given to the Court’s so-called “merits docket” – with full briefing by both sides, oral arguments, written opinions, and a breakdown of the justices’ individual votes. Without those formal procedures, Vladeck explained to the lawmakers, “these rulings come both literally and figuratively in the shadows.”

.           Shadow docket cases begin with an application by the losing party in a lower court case asking the justices to intervene in advance of the normal appellate process to block the adverse decision from going into effect. The applications are submitted to the justice responsible for the circuit where the case originated, who can rule on the matter unilaterally or can refer the matter to the full Court for consideration.

Earlier this month, Justice Amy Comey Barrett acted on her own in rejecting a plea by Indiana University students to block the school’s vaccine mandate for students, faculty, and staff. Barrett held on to the application in Klaassen et al. v. Trustees, 21A15, for six days without asking for the school to reply and without referring the matter to the full Court before denying the application on Aug. 12 without any written explanation. The case illustrates to some extent Baude’s suggestion that the Court ordinarily can provide at least some explanation of the reason for granting or denying an application in order to provide some guidance to lawyers and lower court judges.

            The two most recent filings may come to a head early this week: Justice Alito granted the administration a temporary stay in the “stay in Mexico” case through Tuesday (Aug. 24) and asked Texas and the other states to reply to the government’s request that day. The eviction moratorium case went to Chief Justice Roberts, who supervises the D.C. Circuit and who asked for the administration to reply on Monday.

Saturday, August 14, 2021

Vaccine Mandate Survives High Court Test

          Anti-vaxxers took their best shot last week at persuading the Supreme Court to establish constitutional limits on the growing number of vaccine mandates being instituted by schools and colleges, employers, and commercial establishments. The eight Indiana University students who took their case against the school’s mandatory vaccination policy to the Supreme Court lost badly, just as they had lost in a federal court in Indiana and at the U.S. Court of Appeals for the Seventh Circuit.

            Justice Amy Comey Barrett, who is supervising justice for emergency appeals from the Seventh Circuit, rejected the students’ plea to enjoin the university’s policy without asking the school to reply and without referring the case to any of the other justices. Without a written ruling, Barrett’s action will not settle the legal issues surrounding vaccine mandates, but it gives no encouragement to any of the other legal challenges already percolating in lower court or to future cases either.

            The student plaintiffs in Klaassen v. Trustees, represented by the conservative lawyer James Bopp of campaign finance litigation fame, argued in their brief tto the Court that as adults, they have “a constitutional right to bodily integrity, autonomy, and of medical treatment choice in the context of a vaccination mandate.” The school’s policy, announced on May 21, requires faculty, staff, and students to take a COVID vaccine, unless granted a religious or medical exception. Students who refuse are subject to “virtual expulsion,” according to Bopp’s brief, including canceled class registration and restrictions from participation in any on-campus activity.

            The first-named plaintiff, Ryan Klaassen, an incoming sophomore, in fact had been granted a religious exemption from the policy, but Bopp argued in the brief that the exceptions are available only under “extremely limited” criteria, such as a documented allergy to the vaccine or medical deferrals, but not for “natural immunity” or full recovery from previous infection. Bopp claimed that IU is the only school in the state to institute a universal vaccine mandate for students and faculty and noted that the state has not adopted a vaccine or mask mandate either.

            Legally, the case against vaccine mandates requires critics to attack a century-old Supreme Court precedent Jacobson v. Massachusetts (1905), that upheld a public health measure adopted in Cambridge, Massachusetts, during a smallpox epidemic, that imposed a criminal penalty of $5 on anyone who failed to get a smallpox vaccination. Writing for the 7-2 majority, Justice John Marshall Harlan discounted Jacobson’s unsubstantiated claims about the risks of medical injury from vaccinations. He also noted court rulings from other states, including Indiana, that upheld compulsory vaccinations for public school pupils.

            Harlan noted that Cambridge’s Board of Health had adopted the regulation, under authority of a state law, when smallpox was prevalent and increasing in the city. On that basis, Harlan upheld the city’s authority to impose the requirement. “It is within the police power of a State to enact a compulsory vaccination law,” Harlan wrote, “and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.”
            The Supreme Court itself has not reconsidered Jacobson or voiced doubts about the ruling, but critics such as South Texas University law professor Josh Blackman describe it disparagingly as though it is a relic of the constitutional dark ages. “This is a case that has not aged well,” Blackman remarked as the conservative spokesman on a National Constitution Center podcast last week [Aug. 13]. A second panelist, Wendy Mariner, a health law specialist at Boston University Law School, conceded as well during the podcast that Jacobson predated late 20th-century decisions recognizing personal autonomy over medical decisions.

            In a co-authored journal article published in 2005, Mariner acknowledged the changed legal background for public health measures. “The states’ sovereign power to make laws of all kinds has not changed during the past century,” Mariner wrote. “What has changed is the US Supreme Court’s recognition of the importance of individual liberty and how it limits that power.”

            Despite the changed legal landscape, however, Chief Justice Roberts himself cited Jacobson favorably in his separate opinion in an early case from California, challenging restrictions on attendance at worship services. Roberts cited Jacobson as generally supporting deference to executive orders in the early stages of the pandemic based on the then limited knowledge of the disease. In a later case from New York, Justice Neil Gorsuch sharply criticized Roberts’ use of Jacobson in the California case, which he said invited lower courts “to slacken their enforcement of constitutional liberties while COVID lingers.”

In his own separate opinion in the New York case, Roberts answered Gorsuch’s critique in a testy exchange. In the California case, Roberts specified that he had written only one sentence, with excerpts from Jacobson. “Our Constitution principally entrusts ‘the safety and the health of the people’ to the politically accountable officials of the State to ‘guard and protect.’”

“It is not clear,” Roberts added, “which part of this lone quotation [Gorsuch’s opinion] finds so discomfiting.”

In the podcast, Mariner argued in effect that Jacobson remains good legal authority today for upholding public health policies such as vaccine mandates based on the prevalence of the disease in question, the transmissibility, and the severity. The coronavirus pandemic, she concluded, “meets all three” of those conditions. To get around Jacobson, Bopp asked the Supreme Court to apply the most demanding constitutional standard – strict scrutiny – to vaccine mandates and to find that the university had not produced enough evidence to justify the mandate under that standard. For now, that question is still awaiting an answer.

Saturday, August 7, 2021

Time for Justice Department to Put Trump in the Dock

             Donald Trump’s supporters are circulating in the blogosphere a meme that shows Hillary Clinton and Barack Obama as “corrupt politicians” who belong in jail. The crude meme contains no bill of particulars of the crimes that Clinton and Obama supposedly committed.

            By contrast, two former federal prosecutors joined last week [Aug. 5] in laying out a roadmap of federal offenses that Trump may have committed in his fraudulent efforts to overturn the results of the 2020 presidential election. Barbara McQuade, a former U.S. attorney in Michigan, and Joyce White Vance, a former U.S. attorney in Alabama, joined with Harvard’s Laurence Tribe in an op-ed in the Washington Post to urge the Justice Department now to open a criminal investigation of Trump.

An official investigation, the former federal prosecutors point out, would allow prosecutors now to begin obtaining the evidence – phone records, emails, memos, and so forth – to determine whether Trump should be charged. McQuade and Vance are both now law professors at their state university law schools and occasional legal analysts on CNN; Tribe, one of the country’s leading constitutional law experts,  is also a talking head with frequent appearances on CNN and MSNBC.

Regardless of any political bias, the two former prosecutors present a strong case that Trump may have violated federal law with his acknowledged conduct. They cite in particular his threatening phone call to Georgia’s state elections chief to find the votes needed to upset Biden’s victory in the Peach State and his now disclosed phone call to acting attorney general Jeffrey Rosen  asking that the Justice Department announce that the election was “corrupt” and leave the rest to Trump and Republicans in Congress.

            My own instinct as legal affairs reporter was to view Trump’s two phone calls as crossing the line from politics into criminality. With their greater experience with the U.S. Code’s Title 18, McQuade and Vance substantiated my instinct by specifying half a dozen crimes that Trump may have committed:

            Conspiracy. Federal law, the former prosecutors point out, makes it a crime “for individuals to agree to defraud the United States by interfering with governmental functions.” They note that special counsel Robert Mueller included such a charge in the indictment against the Russian Internet Research Agency by accusing the Russians of “impairing, obstructing, and defeating the lawful functions” of government agencies.

            Obstruction of official proceedings. The former prosecutors also suggest that Trump may have joined with his lawyer, Rudy Giuliani, the bombastic Alabama congressman Mo Brooks, and his White House advisers, in an effort to obstruct Congress’s statutory duty to certify the election results on Jan. 6. Trump and his allies, the prosecutors suggest, used disinformation to sow unfounded doubt to try to induce members of Congress to vote against certifying the election results and throw the election into the House of Representatives.

            Racketeering. The former prosecutors also suggest invoking the federal anti-racketeering law known as RICO, which has long since gone beyond its primary purpose of attacking organized crime. A RICO count, they point out, would require the government to show that the office of the presidency was an enterprise affecting interstate commerce and that Trump had committed at least two racketeering offenses. Extortion is one of RICO’s predicate offenses, the former prosecutors point out, defined as “transmitting a threat to harm another’s reputation with intent to extract something of value.” Trump, the former prosecutors recall, suggested in his phone call with Georgia’s election chief Brad Raffensperger that he might have committed a crime and “that’s a big risk to you.” With those details, the former prosecutors suggested, Trump’s phone call “could fit” the definition of extortion.

            Voter fraud and Hatch Act. The former prosecutors also note that an Election Code provision -- 52 U.S.C. § 20511 – makes it a crime to “attempt[ ] to deprive or defraud the residents of a state of a fair and impartially conducted election process.” Moreover, the former prosecutors suggest, Trump’s phone call to Rosen may have violated the Hatch Act, the federal law codified at 5 U.S.C. §7323 that makes it a crime for a federal official to use “official authority or influence for the purpose of interfering with or affecting the result of an election.”

            Insurrection. The former prosecutors also suggest, with a caveat, that Trump might be charged with insurrection – prohibited by 18 U.S.C. §2383 – or seditious conspiracy. But they acknowledge that the Justice Department might hesitate to bring either of those charges on the ground that a court could find Trump’s Jan. 6 speech to be short of the Supreme Court’s definition of “incitement” and on that basis protected by the First Amendment.

            The House of Representatives could include any combination of these possible offenses in yet another bill of impeachment against the former president, but the Senate’s Trump-coddling Republicans would again prevent a conviction. In a court of law, on the other hand, a grand jury indictment would be tried by an impartial jury on the basis of the law and the evidence rather than politics. Tribe and the former prosecutors acknowledge the risk that a criminal investigation of Trump by Biden’s Department of Justice might appear political.

            The former prosecutors emphasize that Trump, out of office, is unprotected by any presidential immunity. “Attempted coups cannot be ignored,” they write in conclusion. “If Garland’s Justice Department is going to restore respect for the rule of law, no one, not even a former president, can be above it. And the fear of appearing partisan cannot be allowed to supersede that fundamental precept.”