Law/Crime

ALL THINGS IN MODERATION:

Mission Accomplished for the Roberts Court? (The Law & Liberty Podcast, 7/15/25)

The Roberts Court delivered a number of wins for conservatives in its recent term, and Professor John O. McGinnis thinks it may mark the maturation of the Court’s administrative state jurisprudence. Host and contributing editor James Patterson is joined by Professor McGinnis, who explains both the broader trends of the Supreme Court, and some of this year’s major cases, including Mahmoud v. Taylor, US v. Skrmetti, and Trump v. CASA.

A good look at how consrvative–in every sense of the word–the current Court is.

AND NO ONE JUDGE SHOPS MORE THAN THE rIGHT:

Supreme Court rolls back (finally!) politically motivated judge-shopping (Ted Diadiun, 7/07/25, cleveland.com)

Under the archaic policy that had become the norm, a ruling from any one district judge, who hears a specific lawsuit and believes a presidential order to be unconstitutional, immediately becomes the ruling for the entire country – unless and until it is successfully appealed to the Supreme Court.

The process is called “universal injunction.” Once rarely employed, it has been used with increasing frequency over the last three presidential administrations – primarily in opposition to Trump’s orders.

It’s generally considered that universal injunctions became accepted practice in 1963, although the Harvard Law Review dug up an injunction issued in 1913. Either way, according to research gathered by the Baker Hostetler law firm, only 27 such injunctions occurred in the entire 20th century. Contrast that with the 64 issued in Trump’s first term alone, and the 30 that have stopped him in just the first three months of his current term.

REINING THEIR BRANCH IN:

Why Now? The Timing of the Universal Injunction Ruling (William Baude, Jul 01, 2025, Divided Argument)

Indeed, I sometimes think about the briefing in Summers v. Earth Island Institute back in October Term 2008. Summers turned out to be a moderately important Article III standing case, but one of the other questions presented by the government — this was the George W. Bush administration — was “Whether the court of appeals erred in affirming the nationwide injunctions issued by the district court.”

The argument against the nationwide injunction was not as fully developed at the time, was not as categorical, and relied more heavily on the issue preclusion precedent of US v. Mendoza. But it was there, accompanied by a warning that this practice was just starting to grow in district courts in the Ninth Circuit.

I sometimes wonder what the past two decades of public law litigation would look like if the Court had chosen to resolve the case on nationwide injunction grounds rather than the Article III standing ground it chose. Much better, I think! But for whatever reason, the Court did not do that.

The nationwide injunction also became prominent during the last few years of the Obama administration when a Texas district court issued a nationwide injunction against the DAPA program. But this time, when the Obama administration petitioned for cert. they did not ask the Court to review the nationwide injunction issue. That turned out to be especially fateful when Justice Scalia died while the case was pending resulting in the injunction being affirmed by an equally divided court. But again I wonder what would have happened if the United States had petitioned on the issue and gotten five or more votes to limit the scope of the injunction even while affirming on the merits.

SECRET LAWS:

Freedom and the Lawmakers: A Book Review of Over Ruled: The Human Toll of Too Much Law, by Neil Gorsuch and Janie Nitze (Alberto Mingardi, EconLib)

Gorsuch and Nitze provide some figures of the paper blizzard sweeping over Washington, D.C. “Less than a hundred years ago, all of the federal government’s statutes fit into a single volume. By 2018 the U.S. Code encompasses 54 volumes and approximately 60,000 pages. Over the last decade, Congress has adopted an average of 344 new pieces of legislation each session. That amounts to about 2 or 3 million words of new federal law each year.” Agencies “publish their proposals and final rules in the Federal Register; their final regulations can also be found in the Code of Federal Regulations. When the Federal Register started in 1936, it was 16 pages long. In recent years, that publication has grown by an average of more than 70,000 pages annually. Meanwhile, by 2021 the Code of Federal Regulations spanned about 200 volumes and over 188,000 pages.” And “not only have our laws grown rapidly in recent years… so have the punishments they carry.”

THAT WAS EASY:

After Immunity: How Judge Chutkan Should Apply Trump v. U.S.—and When (Norman L. Eisen, Matthew A. Seligman, E. Danya Perry and Joshua Kolb, September 2, 2024, Just Security)

In our view, it is appropriate to proceed first with briefing on whether the superseding indictment and other evidence to be presented at trial meet the tests of Trump, as suggested by the special counsel in the joint status report. Immunity issues are typically treated as a threshold matter, Hunter, 502 U.S. at 227 (1991) (the Supreme Court has “repeatedly … stressed the importance of resolving immunity questions at the earliest possible stage in litigation”), and doing so is consistent with the Court’s opinion in Trump, including the rationale for interlocutory appeal to protect the interests of the presidency.

As we have explained, Smith has neatly teed up the critical questions for the trial court judge with his streamlined pleading, stripping out material that clearly implicates immunity and adding modifying language to clarify allegations that the government believes relate to unofficial conduct. All of that has made the complex task of applying the Trump test easier for the judge and the parties, and we believe the D.C. Circuit and the Supreme Court will ultimately uphold the superseding indictment.

The most hotly contested issue is likely to be whether the allegations about the vice president concern his official executive branch role, his legislative role as the president of the Senate, or his private one as running mate and whether they are or are not immune. A full analysis of this point is beyond the scope of this article and will be the subject of a future one, but we believe the special counsel has the better of the argument here. See Trump, 144 S. Ct. at 2337 (“Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of ‘presiding over the Senate’ is ‘not an “executive branch” function.’ With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U.S.C. § 15, and the President plays no direct constitutional or statutory role in that process”) (quoting Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974)).

Depending on whether and how Trump challenges these and other allegations in the indictment, briefs alone may not be sufficient to resolve the dispute or to rebut any presumption of official conduct, and an evidentiary hearing or “mini-trial” may be required, such as with respect to the question of the capacities in which Pence was acting at particular crucial moments. It may well be that the dispositive evidence as to such questions is his own testimony.

BREAK THE ADMINISTRATIVE STATE:

How Many Laws Did You Break Today?: REVIEW: ‘Over Ruled: The Human Toll of Too Much Law’ by Neil Gorsuch and Janie Nitze (Ilya Shapiro, August 11, 2024, Free Beacon)

Over Ruled pithily describes true rule of law as requiring “laws that are publicly declared, knowable to ordinary people, and stable.” To flesh this out a bit, the rule of law is a principle of governance whereby all people and institutions—including the government—are accountable to laws, not personal authority. These laws have to be publicly passed by a representative body; enforced equally through robust legal processes by enforcement organs that themselves follow the law; and reviewed, interpreted, and applied by an independent judiciary.

In other words, the rule of law exists when people are secure in their persons and property; the state is itself bound by the law and doesn’t act arbitrarily; and everyone can rely on legal institutions and the content of the law to plan their personal and business affairs.

Three trends have threatened the rule of law in America: (1) the growth of government—the authors note that the Eisenhower Executive Office Building once housed the State, Navy, and War departments but now can’t even hold all the White House staff, and that three million civilians work for the federal government; (2) the growth of federal laws—such that lobbying the federal government has grown from $40 million to $4 billion in the last half-century; and (3) a bureaucratic explosion—such that in 2015, for example, Congress adopted 100 laws but federal agencies issued 3,242 final rules and 2,285 proposed rules. On the latter point, Gorsuch and Nitze describe a Pacific Legal Foundation report finding that “71 percent of the nearly 3,000 rules issued by the Department of Health and Human Services between 2001 and 2017 were issued by lower-level officials rather than Senate-confirmed agency leaders; at the Food and Drug Administration the figure was 98 percent.”

People’s lives have been turned upside down by a centralization and expansion of government that ultimately can’t keep track of what it’s doing across its range of regulatory machinery. Over Ruled presents detail upon detail of ordinary citizens ensnared in nonsensical regulatory webs that in practice are little different from capriciously applied secret laws, just without the late-night knock on the door leading to a basement torture chamber. Not because the regulators and their enforcement agents are sadistic or power-hungry—though public choice theory makes clear the incentives to increase authority and budgets—but because the governing apparatus has grown too unwieldy. The deep state doesn’t know what the deeper state is doing!

And that’s before we even get to criminal law. As civil libertarian lawyer Harvey Silverglate famously posited, the average American commits three felonies a day. Gorsuch and Nitze have a chapter on such overcriminalization.

THE RULE OF LAW REQUIRES LAWS:

Looking at Loper Bright More Broadly (Jim Harper, 7/31/24, AEIdeas)

Loper Bright restored courts’ authority to determine the law, as opposed to giving agencies the power to decide what their authorizing statutes mean. This, Lyons rightly says, will pose challenges to “FCC initiatives that capitalized on ambiguous language to accomplish the agency’s policy objectives.”

He’s right, and it is amazing to observe that net neutrality regulation—the law governing the provision of internet service—has been a political ping-pong ball. It has absurdly changed (or threatened to change) with each change of political control in the White House. In what kind of banana republic does the law change simply with the election of one candidate or another? That is no “rule of law” country.