Why can’t we hold rights violators accountable?
Are you still full from Thanksgiving? Here’s a scoop of SCOTUS to go with your leftover mashed potatoes.
Why can’t we hold rights violators accountable?
The Court recently heard arguments in the case of a man whose dreadlocks were forcibly shaved—contrary to his religious belief—just before he was released from prison, after prison staff threw away a printed court opinion he had shown them affirming his right to keep his hair long.
He sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), seeking monetary damages against the prison officials—because an injunction meant nothing to him once he was released, and besides: His head was already shaved. Thus, forcing the officials to pay was the only meaningful way to hold them accountable. Under the Religious Freedom Restoration Act (RFRA)—a sibling statute covering federal actors—the Court in 2020 confirmed that damages are available. Many expected the same logic would apply under RLUIPA.
But at oral argument, the Court was deeply skeptical.
The reason is that although RLUIPA uses largely identical language to RFRA, it was enacted under Congress’ spending power (RLIUPA applies to states receiving federal funds)—not under the constitutional authority that covers federal actors. It’s thus seen as a contract between states and the federal government. For state employees to be liable, then, there needs to be clear notice that they’ll be on the hook.
Some justices pointed out that several courts over the past couple of decades have ruled that damages were not available, and yet Congress had done nothing to enact new language—which suggested they did not intend to authorize damages against officials, and that those officials were not on clear notice.
The attorney for the plaintiff vigorously contested this, saying prison officials are trained on the idea that they can generally be held liable if they violate rights and that, in civil rights litigation, damages are the norm. What’s more, without damages, RLIUPA would be a hollow guarantee. (No rights without remedies!)
The federal government, which usually argues in favor of all types of immunities for government officials and against liability, actually agreed with the plaintiff and argued in favor of damages liability in this case. (I consider it a welcome surprise anytime the government argues against immunity!) But even that didn’t stop skepticism. Justice Gorsuch pointed out that the Solicitor General had taken the exact opposite position on damages under RLIUPA just a few years ago. If that’s true, how could it be that state officials were “clearly on notice” that they were, in fact, liable?
I thought the attorney from the Solicitor General’s office did a good job of gracefully answering that difficult question (“in that case, we had an interest in defending federal officials, we took a shot, we lost badly, we’ve taken your decision to heart”).
But my personal favorite part of oral argument? Own it!
Amy Coney Barrett: I just don’t understand why you’re not owning it.
I happen to wish state officials would “own it” when they violate the Constitution.
I repeat…
In the argument over Trump’s tariffs, the Court seemed equally divided 3-3-3 (“yes, he has the power,” “he absolutely does not,” and “not telling you how I feel yet”). Trump claims he has the power to set massive and widescale tariffs under the International Emergency Economic Powers Act. The challengers say 1) there’s no emergency, and 2) even if there was, the statute authorizes the president to “regulate” imports and exports, but not to impose tariffs, which are effectively taxes.
Justices Kagan, Sotomayor, and Jackson warned that the government’s arguments would allow future presidents to invoke sweeping grants of powers based on vague emergencies (i.e., climate change). And if Congress was really handing over this broad power, which is usually reserved to the legislative branch and which cannot easily be clawed back because the president would have veto power over new legislation, we’d expect Congress to speak in clearer terms (as it has done with regard to tariffs in other statutes).
Justices Alito, Thomas, and Kavanaugh, however, questioned why Congress would hand over broad powers like the power to impose trade quotas, or to ban imports altogether, but not to impose tariffs.
The case will likely hinge on the Chief, Justice Barrett, and Justice Gorsuch—who had tough questions for both sides. My favorite part of this argument? Chief Justice Roberts observing that while the government was going to great lengths to distinguish tariffs from taxes, the administration had previously touted the tariffs for purportedly reducing the deficit—which is kinda like admitting that tariffs are a revenue-raising measure. Pretty bold callout for our institutionalist justice!
Christmas wish: May future court cases go as poorly for overreaching government as they are currently going for overreaching government contractors
While government is getting away with tariffs, government contractors are faring a lot less well.
In Hencely v. Fluor Corporation, a former Army specialist who was permanently injured by a suicide bomb argued that a government contractor should be liable under state law for failing to supervise an employee who carried out the attack, which killed five. The Army determined that the contractor violated its contractual duties by providing the perpetrator with tools used in the attack and failing to monitor him. Many justices seemed skeptical of the contractor’s claim that the “uniquely federal” interests inherent in a war zone mean that states can never impose any liability for a contractor’s misconduct in that zone, even if the contractor acted contrary to government policy.
Justice Kavanaugh, however, appeared squarely in the contractor’s camp. When Justice Gorsuch asked counsel whether they were inventing a new kind of immunity, Justice Kavanaugh jumped in to say “you should fight back on the word ‘invent.’” Justice Gorsuch responded, “You’re going to have your shot, my friend.” To which Justice Kavanaugh replied, “I’m ready.”
Justice Alito also had some pushback. When the victim’s attorney suggested that prior immunity precedent should be narrowed, Alito shot back: “So you’re saying the founding father of textualism,” referring to Justice Scalia, “doesn’t understand textualism.”
Justice Barrett indicated that even if the contractor wasn’t liable under state law, it might still face liability under federal common law.
In The GEO Group, Inc. v. Menocal, a government contractor was accused of forcing detainees at an immigration center to engage in forced labor for as little as $1 a day. The contractor claimed it was just following government orders, so it couldn’t be sued—but the lower court rejected that argument. The contractor then sought to immediately appeal. Normally, you can’t appeal until a case is over. But the contractor claimed an exception that applies to claims of immunity. At oral argument, the justices seemed to think the contractor’s argument was a mere defense and not a claim for immunity, and it would therefore have to wait to appeal until after the case was decided at trial.
GEO Group’s attorney argued that it was unfair to force contractors to litigate before appealing, since they can’t price litigation risk into these fixed-price federal contracts. But Justice Barrett suggested that was a job for Congress to fix. And when the same attorney argued that liability would thwart implementation of government programs, Justice Kavanaugh thought it strange, then, that the government wasn’t on the contractor’s side…
Next month the Court will hear yet another case where a party is trying to take advantage of the immunity usually afforded to the government to shield itself from liability. In Galette v. New Jersey Transit Corp. and New Jersey Transit Corp. v. Colt, the Court will consider whether a relatively independent public transportation entity is an “arm of the state.” This is like… 5 degrees of immunity. It wants derivative sovereign immunity based on the state’s sovereign immunity, and then it wants immunity not only in federal court, but in state court… and then not only its own state court, but another state’s court. This is immunity run riot. (For a primer on sovereign immunity, read my column about the dissent that turned into a constitutional amendment here).
Are we sick of judicial deference yet?
This week the Court considered whether judges must defer to the Board of Immigration Appeals’ judgment when it rules on asylum decisions.
Some courts have held that judges can review the Board’s determination that the asylum seeker’s alleged experiences do not rise to the required level of persecution required with zero deference, while others have held that they must defer unless “any reasonable adjudicator would be compelled to conclude to the contrary.” The case will likely come down to whether the justices think these decisions entail factual determinations or legal decisions. Because it seeks deference, the federal government characterizes these decisions as primarily factual.
Did I mention PLF is back at the Court?
We’re back, baby! Well, my colleagues are back. We’re co-counsel in the case where a Michigan County seized and sold a home for 40 cents on the dollar based on a small tax debt the family probably didn’t owe. We’re arguing that the Fifth Amendment requires that the County return to the fair market value of the home minus the debt, not the small pittance it secured at its unfair auction minus the debt. And if not, then the effective fine for the purported tax debt (60% of their home equity) is grossly disproportionate to the offense and unconstitutional under the Eighth Amendment. Let’s go!!!!
The next couple of months are gonna slap
We’re about to find out if the Court will hear the case involving President Trump’s executive order ending birthright citizenship.
Also, January is filled with blockbuster cases:
Jan 13: Little v. Hecox and West Virginia v. B. P. J., challenging Idaho and West Virginia laws that prohibit transgender individuals from participating in women’s sports.
Jan 20: Wolford v. Lopez, challenging a Hawaii law that makes it a crime to carry a handgun on private property that’s open to the public without the owner’s explicit permission.
Jan 21: Trump v. Cook, involving the president’s request to pause a lower court ruling preventing him from firing Federal Reserve head Lisa Cook.
Why did it take me so long to get this issue out, you ask?
I’ve been yucking it up on podcasts and on Instagram.
I’ve been suing the government like it’s my job.
I also wrote this column for SCOTUSblog about Justice Kagan’s fantastic dissent in a case involving Prince, Andy Warhol, and the limits on judges’ ability to judge art. For some great art and excellent legal writing, read the piece!
Big case on the president’s power to fire is being heard next week. You’ll probably want to read this primer on one of the greatest dissents of all time.
Until the next Scoop…
