Law

A Poke-Class Action

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I enjoy seeing stories at the intersection of my hobbies. As a lawyer and avid Pokemon Go trainer (player), this class action lawsuit against Niantic–the developer of the popular mobile game–piqued my in250px-025Pikachuterest.

This past Saturday, Niantic sponsored Pokemon Go Fest in Chicago. And it was a disaster. Trainers waited in three-hour lines to get into the Grant Park–the venue in which Pokemon Go Fest took place. Once trainers got into Grant Park, many were unable to access Pokemon Go because of connectivity issues. Niantic tried to reduce trainers’ angst by refunding all tickets to the event, providing attendees with $100 of in-game credits, and a Lugia.

Seriously. A Lugia.

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Some optimism for federalism

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Today, Attorney General Jeff Sessions narrowed the scope of the executive order purportedly stripping sanctuary cities of federal funding.  Instead of removing all federal funding from sanctuary cities, the Trump Administration is now only restricting these localities from receiving certain Department of Justice and Department of Homeland Security funding. I have previously criticized the Administration for its position on sanctuary cities, namely that it was running afoul of the anti-commandeering principle. Although it is still crucial to keep the Trump Administration honest, this is certainly a welcoming sign.

Forthcoming article, A Minimalist Solution to Williamson County

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I’m pleased to announce that I have accepted an offer from the Duke Environmental Law and Policy Forum to publish my article, A Minimalist Solution to Williamson County. You can find a working draft here.

Here is the abstract to the article:

Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County relegated takings claims coming under the Fifth Amendment to a second-class of federal rights. Before a takings plaintiff can sue in federal court, she must first seek compensation through an “adequate state procedure.” Many federal courts have held that requirement means a takings litigant must first seek compensation through state courts if that state provides an inverse condemnation proceeding. But if a takings litigant sues in state court, she will be unable to sue in federal court because of issue preclusion. This effectively shuts the federal courthouse door to many property owners. Only two Supreme Court justices have indicated any interest in revisiting Williamson County. Therefore, land use attorneys who are concerned about federal court access for takings plaintiffs should craft a case that would attract the Court’s attention. This Article argues that land use lawyers should present the Court with a case in which the property owner has used a non-judicial procedure to seek compensation (e.g., asking for compensation from a county board). The Court could then rule that such a non-judicial procedure, such as seeking compensation from a county board, is an “adequate state procedure” that satisfies Williamson County’s requirements. This ruling would minimize the negative effects that Williamson County has wrought on takings plaintiffs.

Did Missouri’s governor just moot Trinity Luteran v. Pauley?

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Days before the Supreme Court is set to hear Trinity Lutheran v. Pauley, Missouri Governor Eric Greitens instructed the Department of Natural Resources (“DNR”) to allow religious organizations to apply, and receive grants. Because of this new order, Trinity Lutheran may be mooted. Indeed, the Supreme Court just today called for the parties’ views on how Governor Greitens’ order affects their case.

I’ve recently written on this case here. But a short backgrounder is appropriate. Trinity Lutheran Church applied for a generally available grant from DNR to obtain materials to build a playground. Although Trinity Lutheran Church had one of the highest ranking applications, DNR denied the church a grant solely because it is a religious institution. DNR cited Missouri’s Blaine Amendment, a provision in its state constitution that prohibits Missouri from supporting religious groups. Thus, Trinity Lutheran Church sued DNR, alleging that it violated the Free Exercise Clause and the Equal Protection Clause by denying it a grant.

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I’m Late to the Party, but Here are Some Thoughts on Washington v. Trump 

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On Thursday, the Ninth Circuit denied the Trump Administration’s request to stay Judge James Robart’s Temporary Restraining Order on the President’s questionable executive order suspending visas and immigration from seven Muslim-majority countries. Considering the 48-hour turnaround between oral argument and the release of the opinion, the Ninth Circuit provided detailed and thoughtful analysis on Washington’s standing to sue, the procedural posture of the case, and the three major constitutional issues that Washington raised. Yet lacking from the 29-page per curiam (unsigned) opinion, was a discussion on 8 U.S.C. § 1882(f), the broad statute that seemingly provides the President unlimited authority to exclude any aliens he deems to be detrimental to the United States.

Some conservatives have jumped on the Ninth Circuit for failing to analyzing the 8 U.S.C. § 1882(f) in considering this case. And rightly so. Courts typically must try to resolve cases on statutory over constitutional grounds. Yet the Ninth Circuit overlooked statutory considerations and relied on the Due Process Clause to uphold the district court’s TRO.

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Will Judge Gorsuch inspire other jurists?

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This evening, President Trump—after a day that felt more like the final episode of The Apprentice than a Supreme Court nomination vetting process—nominated 10th Circuit Judge Neil Gorsuch to fill the late Justice Antonin Scalia’s seat.Judge Gorsuch—a Colorado native, Harvard Law graduate, and clerk for two Supreme Court Justices—is undoubtedly an elite legal mind and writer, fit to replace the legal lion that is Justice Scalia. Yet, back in July most legal observers would not have picked Judge Gorsuch to replace Justice Scalia. Putting aside the unlikely probability that Donald Trump would win the election, Judge Gorsuch was not on Trump’s list of eleven potential Supreme Court nominees he released in May 2016. Rather, Judg633219496-judge-neil-gorsuch-speaks-after-us-president-donald-jpg-crop-promo-xlarge2e Gorsuch appeared on Trump’s addendum to the original list released in September 2016.

Was there anything that happened between May and September that elevated Judge Gorsuch’s status? Well yes. In August, Judge Gorsuch wrote a blistering concurring opinion criticizing Chevron deference in Gutierrez-Brizuela v. Lynch, a seemingly ordinary immigration case. In Chevron v. Natural Resource Defense Council, the Court held that the judiciary will defer to an agency’s interpretation of a statute if the statute is ambiguous. Judge Gorsuch sharply attacked Chevron deference, noting that it obliterates Separation of Powers principles.

Judge Gorsuch’s concurrence was met with wide praise in conservative legal circles and he rocketed up Court Watchers’ Supreme Court shortlist. Indeed, other jurists on Trump’s list earned wide praise for their concurring opinions in seemingly simple cases. For instance, Justice Don Willet of the Texas Supreme Court earned national recognition after writing a concurring opinion in Patel v. Texas Department of Licensing and Regulation that aggressively defended economic liberty—a subject that has long been dear to legal libertarians.

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The Order

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President Trump’s executive order temporarily banning citizens from seven Muslim-majority countries and temporarily suspending refugee resettlement has led to an absolute debacle. The past four days seem like a law school exam hypo that could only be created by a deranged professor. In a dystopian situation, Customs and Border Patrol (CBP) were barring numerous valid green card holders from returning home. And a few hours after the order was signed, we learned that the President didn’t even consult with the Office of Legal Counsel (OLC) before signing the order. Instead, the executive order appears to be the brainchild of Steven Bannon—the father of the modern alt-right (i.e. White Supremacy) movement. To top it all off, President Trump fired Sally Yates Acting Attorney General on Monday because she refused to enforce his questionable executive order. Although the President was within his legal authority to remove the Acting AG, the move is undoubtedly an optical nightmare.

This situation has obviously been a huge mess. And even four days after Trump signed the executive order, I am still struggling to form a coherent response to everything. Here is my best effort.   Continue reading →

‘Member when Republicans cared about federalism?

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This week, President Trump signed an executive order that purports to deny federal funds to “sanctuary cities”—i.e., cities that will not cooperate with federal government in deporting illegal immigrants. For years, Republicans have made defunding sanctuary cities a legislative goal. And with a new Republican administration, it seems like the GOP will (maybe have) accomplish(ed) this goal. 

But President Trump’s executive order raises some major constitutional issues, regardless of whether defunding sanctuary cities is good policy. Namely, President Trump’s executive order may violate the Tenth Amendment’s anti-commandeering principle. Simply, the Tenth Amendment prohibits the federal government from forcing states officials to act on behalf of the federal government.

This is normally the point when Republicans are supposed to raise hell about federal overreach.

*crickets*

‘Member when Republicans rallied behind the Tenth Amendment and federalism during the Obama Presidency?  Continue reading →