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Fifth Circuit Court of Appeals

Fifth Circuit upholds Texas’ ridiculous social media censorship law

Sep 19th, 2022
by Charles Kuffner.
6 comments

Back to you, SCOTUS.

A Texas law prohibiting large social media companies from banning users’ posts based on their political viewpoints will go into effect after a federal appeals court on Friday lifted a block placed on the statute.

NetChoice and the Computer & Communications Industry Association sued Texas after the law, known as House Bill 20, was passed last year, arguing that internet companies have a First Amendment right to curate content posted on their platforms and decide which types of speech they saw fit to be there.

In its ruling, the 5th U.S. Circuit Court of Appeals disagreed with the plaintiffs’ argument that the law was unconstitutional, saying they were seeking protection to “muzzle free speech.”

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the ruling says.

The CCIA said the ruling forced tech companies to give equal treatment to all manners of speech, including extremist views.

“We strongly disagree with the court’s decision. Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users, and places Americans at risk,” the group said. “‘God Bless America’ and ‘Death to America’ are both viewpoints, and it is unwise and unconstitutional for the State of Texas to compel a private business to treat those the same.”

See here for the previous update, in which SCOTUS blocked the law pending the Fifth Circuit’s ruling on the appeal, and here for a copy of the opinion. I think this sums it all up:

You and me both. We’ve now reached that point, and as everyone expects this to be appealed it will be back to SCOTUS for the final word. I have no idea what to expect. The Chron has more.

A different EMTALA ruling in Idaho

Aug 26th, 2022
by Charles Kuffner.
Comments are off for this post

As expected. You know where this goes from here.

A federal judge on Wednesday blocked Idaho from enforcing a ban on abortions when pregnant women require emergency care, a day after a judge in Texas ruled against President Joe Biden’s administration on the same issue.

The conflicting rulings came in two of the first lawsuits over Biden’s attempts to keep abortion legal after the conservative majority U.S. Supreme Court in June overturned the 1973 Roe v. Wade decision that legalized the procedure nationwide.

Legal experts said the dueling rulings in Idaho and Texas could, if upheld on appeal, force the Supreme Court to wade back into the debate.

[…]

In Idaho, U.S. District Judge B. Lynn Winmill agreed with the U.S. Department of Justice that the abortion ban taking effect Thursday conflicts with a federal law that ensures patients can receive emergency “stabilizing care.”

Winmill, who was appointed to the court by former Democratic President Bill Clinton, issued a preliminary injunction blocking Idaho from enforcing its ban to the extent it conflicts with federal law, citing the threat to patients.

“One cannot imagine the anxiety and fear (a pregnant woman) will experience if her doctors feel hobbled by an Idaho law that does not allow them to provide the medical care necessary to preserve her health and life,” Winmill wrote.

The Justice Department has said the federal Emergency Medical Treatment and Labor Act requires abortion care in emergency situations.

“Today’s decision by the District Court for the District of Idaho ensures that women in the State of Idaho can obtain the emergency medical treatment to which they are entitled under federal law,” U.S. Attorney General Merrick Garland said in a written statement.

“The Department of Justice will continue to use every tool at its disposal to defend the reproductive rights protected by federal law,” Garland said. The DOJ has said that it disagrees with the Texas ruling and is considering next legal steps.

See here for the background. TPM goes deeper into the two rulings and also provides copies of them, but the bottom line is that the Texas judge said that the federal guidance went too far, didn’t go through the formal rule-change process (even though it was guidance on an existing rule and not a change), didn’t take the rights of the fetus into account, and could only apply when the mother’s life was in danger, not just when her health was threatened. The Idaho judge didn’t do any of that.

Both rulings will be appealed, and as Idaho is in the more liberal Ninth Circuit, there’s a very good chance that this ruling will be upheld. The same is true for Texas, where the radical and lawless Fifth Circuit will get its paws on it. While it is usually the case that a split in the appellate courts means that SCOTUS will weigh in, it seems possible to me that they will duck the issue, perhaps on the grounds that this is really a dispute over state laws, and since the Texas case applies only to Texas, there’s no need for them to step in. I’m just guessing, I could easily be wrong. We’ll know soon enough. DAily Kos has more.

Restraining order granted in Paxton’s EMTALA lawsuit

Aug 25th, 2022
by Charles Kuffner.
1 comment

Ugh.

Texas hospitals will not be required to provide emergency abortions after a federal judge ruled the Biden administration was unauthorized to enforce such a rule.

U.S. District Judge James Wesley Hendrix in Lubbock ruled that the guidance by the U.S. Department of Health and Human Services went beyond the text of a related federal law, Reuters reported. The judge’s ruling agreed with Republican Texas Attorney General Ken Paxton.

Hendrix, who was appointed by former President Donald Trump, only barred federal regulators from enforcing the guidance and its interpretation of the Emergency Medical Treatment and Active Labor Act in Texas, and against two anti-abortion groups of doctors. The judge declined to enjoin the guidance nationwide.

[…]

The ruling is the latest in an ongoing battle for abortion rights in Texas and other conservative-led states. When the U.S. Supreme Court overturned abortion rights in the country, Texas had a clear path for its “trigger law” that bans almost all abortions, which goes into effect Thursday.

The Biden administration’s guidance was an attempted response to concerns about the health of pregnant patients being turned away or delayed care by hospitals worried about abortion bans. The Texas Medical Association wrote a letter asking state regulators to “prevent any wrongful intrusion into the practice of medicine.”

See here for the background. At least this time it’s just limited to the state and not nationwide, though of course it’s our effed-up state that needed this to be decided differently. As TPM notes, there’s a similar case in Idaho that may have a ruling by the time you read this, so we’re going to be fighting this out in the appeals courts and then very likely SCOTUS. Joy.

I often say that I Am Not A Lawyer in posts about legal things. I say that in part to make it clear that my analysis is that of a layperson, and one should be wary of accepting my acumen of the finer points of legal theory. But that also frees me to an extent of the concern about the technicalities and lets me just focus on the things that should matter, whether they actually will in a real courtroom or not. As a prime example of this, let’s look at a bit of the judge’s ruling. I’m quoting from that TPM story now:

“That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict,” Hendrix writes.

Siding with the two groups of anti-abortion physicians as well as the state of Texas, Hendrix writes that the HHS guidance requiring physicians to act when the woman’s health is at risk is too generous.

“The Guidance states that EMTALA may require an abortion when the health of the pregnant woman is in serious jeopardy,” he says. “Texas law, on the other hand, limits abortions to when the medical condition is life-threatening, and HLPA goes further to expressly limit the condition to a physical condition,” he adds, referring to Texas’ trigger law that outlaws abortions in most cases.

He argues that the guidance also does away with consideration for the embryo or fetus. The government contends that, when the wellbeing of the woman and embryo or fetus are in conflict, it should be the pregnant patient who decides whether or not to go forth with an abortion. Hendrix says that the decision should be taken out of the woman’s hands and put into the doctor’s — who has to then comply with state law.

He also dips into agency power arguments to hack back the guidance, claiming that Congress has not resolved the specific question at play.

“Specifically, the question at issue here is whether Congress has directly addressed whether physicians must perform abortions when they believe that it would resolve a pregnant woman’s emergency medical condition, irrespective of the unborn child’s health and state law,” he writes. “Congress has not.”

In other words, unless you the doctor who may get prosecuted for murder are sure the pregnant person is going to die, you have to let them suffer. I don’t care about the legal technicalities, I’m here to say that if you’re capable of committing these words to a document, you’re a goddamned sociopath and you have no business having power of any kind. That of course also applies to Ken Paxton and Greg Abbott and every single member of the Legislature who voted for these barbaric laws. It’s what this election is about. And I should note that Slate’s Mark Joseph Stern, who is an actual lawyer, sees this the same way I do. So there. Daily Kos and CNN have more.

Most of the lawsuit against the voter suppression law survives a motion to dismiss

Aug 6th, 2022
by Charles Kuffner.
Comments are off for this post

Some good news.

In a limited order this week, a federal judge threw out some civil rights and discrimination claims brought as part of a complex and ongoing legal dispute over strict new voting rules in Texas.

The lawsuit filed last year alleges that the rules violate the U.S. Constitution, the Voting Rights Act and the Americans with Disabilities Act by restricting voter assistance and making it easier for “partisan poll watchers to intimidate voters and poll workers.”

[…]

In his order on Tuesday, U.S. District Court Judge Xavier Rodriguez, a George W. Bush appointee, did not provide a clear win to either side in the protracted legal fight.

On one hand, Rodriguez did agree with Texas officials that civil rights groups had in some cases failed to a state a claim, meaning they could not adequately show a violation of federal law or a potential injury to voters. He dismissed a handful of claims brought by the civil rights groups, which include the League of Women Voters of Texas and the Workers Defense Action Fund.

On the other hand, Rodriguez’s order was hardly kind to Texas officials. Over the course of 61 pages, he detailed not only why civil rights groups had standing to sue, but also how they’d “clearly” established that SB1 could have discriminatory effects on voting rights.

The judge waved off efforts by Texas officials to have more or all of the lawsuit dismissed — including the state’s unusual argument that civil rights groups shouldn’t be able to sue because “the organizations themselves do not have a disability.”

“It is well settled,” Rodriguez wrote, “that an organization may sue as the representative of its members.”

While past filings in this lawsuit have largely hinged on nuances of civil rights law, Tuesday’s order was interesting because it detailed the lived experiences of disabled voters in Texas.

The civil plaintiffs presented examples from at least three voters — all members of the disability voting-rights group REV UP — whom they said could be harmed by Texas’ new voting law.

These examples were “non-exhaustive,” plaintiffs said, and represented just some of the disabled Texans who could face voting difficulties if SB 1 is allowed to stand.

See here for the background. There were multiple lawsuits filed, with the Justice Department getting involved later on. This is the San Antonio lawsuit from that first blog post. I assume that most if not all of these cases have been combined but it’s hard for me to say from the information I have easily available. Democracy Docket has some information on this one, and they provide a PDF that combines multiple orders from Judge Rodriguez; the Courthouse News story only has one of them, which threw me for a minute as I was trying to verify that I was referring to the correct case. This stuff is complicated, y’all.

Anyway. That story goes into two of those examples, and you should read about them, they’re quite compelling. I’m never quite sure if the Republicans who pass these voter suppression bills legitimately don’t care that people such as these plaintiffs won’t be able to vote as a result, or if they just can’t be bothered to hear their stories while the bills are in progress, lest they have some feelings of guilt or remorse, if those are possible for them. The end result is the same, I just want to know how to calibrate my contempt. Anyway, this is in addition to the other voter suppression bill that was struck down – we are apparently at a point where a bunch of these are getting some action, which is always exciting. As usual, nothing is safe until the Fifth Circuit is done with it, and we know what that usually means. So celebrate responsibly, we may be mourning later on.

Redistricting plaintiffs get a win on discovery

Aug 2nd, 2022
by Charles Kuffner.
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Every little bit helps.

A federal judge on Monday issued a wide-ranging discovery order requiring Texas state lawmakers to turn over documents related to the state’s congressional redistricting plans.

The underlying lawsuit, filed by the League of United Latin American Citizens and several other civil rights groups, is part of a broad effort to correct what critics say is voter intimidation and discrimination in Texas heading into the 2022 midterm elections.

[…]

Like the separate lawsuit over Texas election laws, this redistricting case has continued to swell since its initial filing, with six other lawsuits consolidated into the legal fight. Days after the case was filed, the Fifth Circuit appointed a three-judge panel to oversee the increasingly complex case.

In November, the Justice Department also joined those suing state officials. It was doing so, the federal government said, because Texas redistricting plans had raised “important questions” about possible violations of the Voting Rights Act.

Since then, the case has largely hinged on issues of discovery. Texas lawmakers have battled against subpoenas, arguing that much of their work on redistricting was privileged information. They filed hundreds of pages of court documents detailing information they do not think they should have to turn over, including what they’ve described as “confidential communications” reflecting “thoughts, opinions and mental impressions.”

The Department of Justice, meanwhile, has continued its efforts to enforce subpoenas. The feds argue Texas officials have “inappropriately” claimed attorney-client privilege, refused to turn over documents from decades ago and “advanced an overbroad conception” of legislative privilege that has withheld “even communications with members of the public.” As a result, they say, lawmakers have disclosed “merely one-third” of the documents requested in subpoenas.

In his order on Monday, U.S. District Court Judge David Guaderrama, an Obama appointee, agreed with arguments from the DOJ and the civil rights groups. He found that Texas lawmakers were using overly broad theories of legislative privilege and could not “cloak conversations with executive-branch officials, lobbyists, and other interested outsiders.”

Guaderrama ruled the factors in this case weighed in favor of granting discovery requests. He cited the “seriousness of the litigation and the issues involved,” including allegations of lawbreaking and “intentional discrimination” against minority voters.

While Texas lawmakers asserted attorney-client privilege, the judge ruled they could not simply decline to release any documents referencing legal analysis, including scheduling calendars and communications with outside firms involved in redistricting. These documents are not “categorically privileged,” he wrote.

In the end, Guaderrama ordered Texas lawmakers to turn over a wide array of documents relating to redistricting, including “talking points” defending the maps. For any documents that contained “bona fide legal advice” or “privileged material,” Guaderrama ordered lawmakers to produce redacted versions.

About two months ago, the plaintiffs scored a different win in that three Republican legislators who had tried to avoid having to sit for depositions failed to get a lower court ruling against them overturned. If this ruling stands – always a dicey proposal when the Fifth Circuit is involved – then what the plaintiffs will gain is a lot of insight into what the legislators and their staff and advisors were saying to each other at the time. The experience from previous rounds of redistricting litigation is that there will be some good stuff there for the plaintiffs. Which still might not matter in the end, since SCOTUS has made its preferences very clear, but as I said in that last post, you have to start somewhere. Link via Reform Austin.

Fifth Circuit tosses mask mandate lawsuit filed by disability rights activists

Jul 30th, 2022
by Charles Kuffner.
Comments are off for this post

Par for the course.

A federal appeals court on Monday tossed out a lower-court injunction, issued in November, that would have allowed public schools in Texas to ignore Gov. Greg Abbott’s ban on mask mandates.

U.S. District Judge Lee Yeakel of Austin had blocked Abbott’s order as it pertained to schools, ruling that a ban on mandatory face masks improperly endangered students with disabilities and violated the Americans with Disabilities Act by denying them the opportunity to participate equally in school.

Texas appealed, and a month later the 5th U.S. Circuit Court of Appeals blocked enforcement of Yeakel’s injunction while it considered the state’s case.

On Monday, in a 2-1 ruling, the appeals court sided with state officials, tossing out Yeakel’s injunction and dismissing the lawsuit by the students. The court said the students did not prove that the ban on mask mandates put them at imminent and concrete risk of contracting COVID-19.

“In light of widely available vaccines and the schools’ other mitigation efforts, the odds of any particular plaintiff contracting COVID-19 and subsequently suffering complications are speculative,” Judge Andrew Oldham wrote in an opinion joined by Judge Don Willett. Both were appointed by former President Donald Trump.

In addition, Oldham wrote, the Americans with Disabilities Act only ensures that students have access to school, not that they have access to their desired accommodation of universal masking.

“Schools, in turn, have numerous alternatives for mitigating the risks of COVID-19 so plaintiffs have such access. The schools can adopt policies regarding vaccines, plexiglass, hand sanitizer, social distancing, and more,” Oldham wrote. “Plaintiffs have not even attempted to show that one or any combination of these accommodations is insufficient to mitigate the risks of COVID-19 to a level low enough that plaintiffs can attend school.”

In a dissenting opinion, Judge Eugene Davis complained that Oldham mischaracterized the students’ argument by saying they merely feared an increased risk of contracting COVID-19. Instead, the students argued that state Attorney General Ken Paxton’s dogged defense of Abbott’s ban on mask mandates, including lawsuits against school districts and threats of additional litigation, amounted to disability discrimination.

The students also proved that they had been, or will be, harmed by a ban on all mask mandates, even at schools that determine that limited mask orders were a reasonable accommodation for student health, he wrote.

“While all students bear some health risks by attending school in person during the ongoing pandemic, the district court found, and it is undisputed, that these plaintiffs face a much higher risk to their health because of their disabilities,” said Davis, appointed by former President Ronald Reagan.

See here for the previous update, and here for a copy of the opinion. There are still a lot of state lawsuits over the Abbott executive order that banned mask mandates in school, which largely turn on the question of what the Governor’s authority under the 1975 Texas Disaster Act is; the San Antonio ISD vaccine mandate lawsuit is in that same bucket. This was a federal lawsuit that claimed discrimination under the Americans with Disabilities Act. I still think they had a pretty good argument, but it’s the Fifth Circuit, what are you gonna do? I suppose an appeal to SCOTUS is possible, but perhaps not advisable, as it’s probably not a good idea to give them a chance to mess with that law. Texas Public Radio and the ABA Journal have more.

A piece of the voter suppression law is blocked

Jul 22nd, 2022
by Charles Kuffner.
Comments are off for this post

Buckle up, this will take a bit of explanation.

Parts of a 2021 Texas voting law that cracked down on assistance for voters with limited English skills and voters with disabilities can no longer be enforced.

A federal judge in Texas issued a ruling last month striking down provisions in Texas’ new law, known as Senate Bill 1, that set limits on how people can help voters cast their ballots. State officials had until last week to appeal the ruling, but they declined. The office of the Texas attorney general has not responded to requests for comment.

Lisa Snead, a litigation attorney at Disability Rights Texas, said the court decision is a big win for voters with disabilities in the state.

“The provision of SB 1 limiting assistance … really limited what voters with disabilities could receive,” she said. “And it had a grave impact on voters who tried to vote in … elections in March and May.”

[…]

Among its provisions, SB 1 restricted assistance to only reading the ballot for a voter, marking the ballot for a voter, directing the voter to read the ballot and directing the voter to mark the ballot.

Groups including the Asian American Legal Defense and Education Fund went to federal court and argued that the voter assistance parts of SB 1 directly violate a 2018 injunction that ruled that similar limitations in Texas’ election code at the time violated the federal Voting Rights Act. The court agreed and also directed the state to change its training for voting assistants.

In addition, the court barred Texas from including those restrictions in the language of an oath an assistor must swear to when helping voters. SB 1 requires people aiding voters to fill out paperwork disclosing their relationship with the voter and whether they are compensated. It also requires they recite an oath under the penalty of perjury stating they did not “pressure or coerce” the voter into choosing them for assistance.

Debbie Chen with Organization of Chinese Americans of Greater Houston, which was the plaintiff in the 2018 case, said in a statement earlier this month that SB 1 made assistors afraid to answer voters’ questions in the state’s primary elections.

“Asian American voters with limited English often need to ask questions to understand the ballot and the voting process,” Chen said. “This is especially true for people who provide them with assistance and must translate the English ballot and the whole process on the spot.”

This lawsuit was filed in Travis County in September; there was another lawsuit filed at the same time in Bexar County, but that is not a part of this case. I did not see any news stories about the injunction that had been granted, so this is the first update that I’m aware of. The story refers to a 2018 injunction granted from a 2016 lawsuit over similar issues – see here for more on the lawsuit. I had noted the appeal of that injunction, but it seems I lost track of the litigation after that. Sometimes these things don’t make the news, and sometimes they only make the news in places I don’t see.

Anyway. The allegation here is that the latest voter suppression bill contained language that directly violated the terms of the 2018 injunction – in some cases, SB1 more or less directly quoted things that the court had said were enjoined. Some great work by the staff there, fellas. I’m a little surprised the state didn’t bother appealing this to the Fifth Circuit, even though that 2018 injunction had been narrowly tailored to comply with their order remanding the case back so it could be more narrowly written. Maybe there are some things even the Fifth Circuit won’t do. In any event, while there are still many issues with SB1, at least this won’t be among them. Kudos to all for getting this done. The Chron has more.

Paxton sues over emergency guidance to doctors

Jul 15th, 2022
by Charles Kuffner.
1 comment

This is what “leaving it to the states” looks like.

Best mugshot ever

Texas is suing the Biden administration over guidance released Monday telling the nation’s doctors they’re protected by federal law to terminate a pregnancy as part of emergency treatment — and threatening to defund hospitals that don’t perform these procedures.

The Biden administration’s guidance states that federal law requires doctors to perform abortions for pregnant people in emergency rooms when it is “the stabilizing treatment necessary” to resolve a medical emergency, including treatments for ectopic pregnancy, hypertension and preeclampsia.

On Wednesday, the Biden administration also warned retail pharmacies that they must fill prescriptions for pills that can induce abortion or risk violating federal civil rights law.

These two recent actions pit the federal executive branch against state governments after the U.S. Supreme Court undid a nearly half-century-old precedent that had affirmed access to abortion as a constitutional right.

Texas Attorney General Ken Paxton’s office filed the suit challenging the guidance in federal court on Thursday, saying the Biden administration’s guidance violates the state’s “sovereign interest in the power to create and enforce a legal code.”

[…]

The Biden administration reassured the nation’s doctors that they don’t need to wait until a patient’s health deteriorates before acting and that they can act in cases where nontreatment would result in serious impairment, guidance that comes as medical professionals in Texas and other states where abortion is banned are trying to figure out what kind of women’s health care is allowed under new restrictions. The guidance isn’t seeking to update existing law but is said to clarify a hospital’s duties under the Emergency Medical Treatment and Active Labor Act.

I thought it was federal law that was sovereign, but what do I know? I know that if Paxton gets his way women are going to die because doctors won’t be able to treat them properly and in a timely fashion. That’s what’s really at stake here. And I expect Paxton to get his way, at least at first. The Chron points out the obvious:

The case underscores the dominant position that conservative Republicans hold in the federal judicial system: Paxton filed the case in Lubbock, in the U.S. Northern District of Texas, where there are 12 judges, 10 of whom were appointed by Republican presidents and six of whom were named by former President Donald J. Trump.

If Paxton were to lose, the case would go to the Fifth Circuit Court in New Orleans, widely recognized as one of the most conservative federal appellate courts in the country, and the final step would be the Supreme Court, which ruled last month to overturn Roe v Wade in the first place.

I guarantee you, whatever the district court judge does, the Fifth Circuit will give Ken Paxton what he wants because that’s what they do. And then SCOTUS gets to make another abortion ruling. Great system we have here, isn’t it?

I had drafted a post about the imminent threat to EMTALA that the Biden administration’s guidance had queued up, and then made the mistake of not publishing it in time to keep up with the news cycle. My bad. The original post is beneath the fold. I stand by what I said in this post. Now let’s bring the fight that this requires. Daily Kos and Mother Jones have more.

(more…)

Lawsuit filed over Texas trigger law implementation

Jun 28th, 2022
by Charles Kuffner.
2 comments

One last fight before the curtain comes down.

Texas abortion providers are making a last-ditch effort to temporarily resume procedures by challenging a pre-Roe v. Wade abortion ban that has not been enforced for nearly a half-century, but that some abortion opponents argue could be enforced after the U.S. Supreme Court’s decision to overturn the constitutional right to an abortion.

The providers filed a lawsuit on Monday, and a Harris County judge will hear arguments on Tuesday for implementing a temporary restraining order to block enforcement of the old ban, which criminalized both performing abortions and assisting anyone who performs abortions in Texas.

Texas Attorney General Ken Paxton, some Republican lawmakers and anti-abortion activists have argued that old state statutes banning abortion may have instantly gone back into effect following the Supreme Court’s announcement that it would overturn Roe v. Wade.

Texas abortion clinics stopped all procedures, and abortion funds ceased operating in the state after the Supreme Court ruled Friday to overturn Roe v. Wade, the landmark case that affirmed abortions as a constitutional right for nearly five decades. Some doctors had to halt procedures moments before they were set to perform them because of concerns that old state abortion laws that had been blocked by Roe could now once again be criminally enforced.

“We will fight to maintain access for as long as we can,” Nancy Northup, president of the Center for Reproductive Rights — one of the plaintiffs challenging pre-Roe restrictions — said in a statement. “Every day, every hour that abortion remains legal in Texas is a chance for more people to get the care they need. The clinics we represent want to help as many patients as they can, down to the last minute.”

Last year, Texas passed a “trigger law” to ban abortions if the Supreme Court repealed Roe v. Wade. The law will go into effect 30 days after the court issues a judgment repealing Roe.

Though the court issued its opinion signaling its intention to overturn Roe on Friday, it’s unclear when the formal judgment will come. Paxton said the judgment could take a month. He said his office will announce the effective date for the trigger law as soon as possible.

However, laws predating Roe v. Wade in Texas that ban abortion are still on the books — leading some to argue they’re valid again and that there’s no need to wait for the trigger law to seek criminal penalties for performing abortions in the state. Paxton noted this on Friday, saying “some prosecutors may choose to immediately pursue criminal prosecutions.”

But a 2004 case in the Fifth Circuit Court of Appeals found that by passing abortion laws — such as regulations on the availability of abortions for minors and the practices of abortion clinics — the Texas Legislature repealed its old bans and replaced them with regulations that implied those statutes were no longer in effect. And because the Supreme Court has yet to issue its formal judgment, it’s unclear whether the pre-Roe statutes can be enforced until that happens.

[…]

The pre-Roe laws include more detailed provisions than Texas’ trigger ban, including the potential to charge anyone who “furnishes the means” for someone to obtain an abortion. The threat of criminal charges has been enough to chill both abortion procedures as well as funding for Texans to travel and obtain abortions outside the state.

“It’s going to be very difficult for anyone to take on the threat of criminal prosecution in order to test these theories because the harm inflicted by the criminal justice system is immediate,” said Elizabeth Myers, an attorney who represents abortion funds.

Some abortion providers have already said they will resume procedures if a court gives them the protection to do so before Texas’ trigger ban takes effect.

“If these laws are blocked, I plan to provide abortions for as long as I legally can,” Dr. Alan Braid, abortion provider and owner of Alamo Women’s Reproductive Services, a plaintiff in the lawsuit, said in a statement Monday. “I started my medical career before Roe v. Wade and never imagined our country would go back to criminalizing doctors and preventing us from helping women.”

A copy of the complaint is here, and a brief thread from the ACLU of Texas, representing the plaintiffs, is here. I’d find this all fascinating as an academic exercise if it weren’t so fucking depressing. The complaint is long and I didn’t read it, but the bottom line question is simple enough. That said, similar efforts in Louisiana and Utah have succeeded, at least for now, so that offers a bit of hope. I just wonder if SCOTx will let a TRO stand if they are asked to weigh in. The Chron has more.

Fifth Circuit upholds dismissal of Methodist vaccine mandate lawsuit

Jun 20th, 2022
by Charles Kuffner.
1 comment

Good.

A federal appeals court on Monday upheld the dismissal of a lawsuit challenging Houston Methodist’s COVID-19 vaccine mandate, which last year thrust the hospital into the national spotlight as the first healthcare system in the U.S. to require the shots for its employees.

The lawsuit, filed on behalf of 117 Houston Methodist employees who refused to abide by the policy, was dismissed in June 2021 by U.S. District Judge Lynn Hughes, who at the time decried arguments comparing the requirement to those made under Nazi Germany.

In its opinion, the U.S. Fifth Circuit Court of Appeals said it affirmed the original ruling “because plaintiffs do not demonstrate any error in the district court’s judgment on the arguments made in that court but instead make an entirely new argument on appeal.”

The plaintiffs’ attorney, Jared Woodfill, said “this battle is far from over.”

“We believe employment should not be conditioned on your willingness to take an experimental shot,” he said in an email to the Chronicle. “During oral argument, the court indicated that one way to potentially address this case of first impression is to take it back to state court. We will pursue every legal avenue available to our clients, including taking this case to the United States Supreme Court.”

Woodfill added that a “companion case” has been filed in Harris County, though records of that lawsuit could not be found by press time.

[…]

The lawsuit brought three separate claims of wrongful termination, alleging violations of state and federal law. In their appeal, the plaintiffs “pivoted” from focusing on the federal law violations to state law, the appeals court notes in its opinion.

The plaintiffs “now even equivocate on whether federal law supports their claim,” according to the opinion. “Federal law does not, and the district court did not err in dismissing plaintiffs’ claim.”

See here for the previous update. As noted at the time, Texas state law isn’t exactly employee-friendly, so the odds of a better result for the vaccine refuseniks seems quite low. But hey, they have Jared Woodfill, Super Genius, on their side. What could possibly go wrong?

Two redistricting lawsuit updates

Jun 13th, 2022
by Charles Kuffner.
Comments are off for this post

Legislators involved in the most recent redistricting effort can be made to sit for depositions.

The Supreme Court refused Tuesday to block the deposition of Texas lawmakers in redistricting suits.

Mum as to whether there were any dissents, the order from the justices keeps in place a lower court ruling that will force Republican lawmakers to appear for depositions in suits claiming that Texas’ redistricting plans are discriminatory. Per their custom, the justices also did not offer any explanation for their ruling.

The United States subpoenaed three Texas lawmakers at the beginning of the month to testify in a challenge to the state’s 2021 congressional and state House redistricting plans. The Department of Justice and voting rights groups claim the new maps violate Section 2 of the Voting Rights Act by intentionally discriminating against minority voters in West Texas and the Dallas-Fort Worth area.

Representatives Ryan Guillen, Brooks Landgraf and John Lujan tried to limit their testimony to matters in the public record, but a federal judge denied their motion and their attempt to block the testimony altogether. Likewise the Fifth Circuit refused to enter a stay pending appeal that would block their testimony.

In their application to the high court, Texas lawmakers claim they have the privilege and immunity to avoid testifying in the suits.

“The legislators’ depositions will probe the very innerworkings of the legislative process, examining the legislators’ thoughts, impressions, and motivations for their legislative acts,” wrote Taylor A.R. Meehan, an attorney with Consovoy McCarthy representing the lawmakers.

He also warned that lawmakers would have to answer questions in full the “proverbial ‘cat is out of the bag.’ And the twin safeguards of legislative immunity and privilege — older than the country itself — are no safeguards at all.”

The Justice Department said the depositions were routine.

“Courts, including this Court, often rely on such testimony both in assessing the motive and justification for districting choices and in considering the ‘totality of circumstances’ relevant to minority voters’ electoral opportunities, as the VRA directs,” Solicitor General Elizabeth Prelogar wrote in the government’s opposition brief.

The government notes that Lujan has a particularly weak claim to legislative privilege since he was not in the Legislature when the redistricting plans were passed.

“Representative John Lujan, does not have even an arguable claim of legislative privilege with respect to the challenged districting plans because he was not in the legislature when the plans were passed — a critical fact that applicants do not mention,” Prelogar wrote.

This is from the LULAC lawsuit, which is now consolidated with most of the other federal lawsuits. The order is from a couple of weeks ago, as the depositions were set to begin the week of May 24. SCOTUS just never took up the defendants’ motion, so they did not get an order to protect them from being deposed. This is not going to change the overall trajectory of the litigation, but it ought to lead to some interesting facts for the eventual hearings. Lujan as noted was not a legislator when the maps were passed in the special session, so who knows what he thinks he has to keep quiet about, while Guillen was still a Democrat when this was all happening. Should make for some fun questions, if nothing else.

The other federal lawsuit, which was not combined with the LULAC et al complaint, is the one filed by the Justice Department. That one survived a motion to dismiss:

A federal judge has ruled that U.S. Attorney General Merrick Garland can proceed with voting and civil rights claims against Texas over a state law passed last year to address purported voter fraud.

State officials had asked U.S. District Court Judge Xavier Rodriguez to dismiss the case, arguing that federal officials did not have standing to sue them. They argued that local election officials — not state ones — were charged with implementing the new law.

The George W. Bush appointee disagreed in an order Tuesday, finding the U.S. attorney general has “broad constitutional power to protect the right to vote” and is “congressionally authorized” to go after voting rights violations.

The federal government had a “significant stake” in protecting “the general welfare of its citizenry,” Rodriguez wrote. He found the U.S. government had plausibly alleged that Texas law would “disenfranchise eligible Texas citizens who seek to exercise their vote,” including those with disabilities, limited knowledge of English and “members of the military deployed away from home.”

[…]

In November, the U.S. attorney general’s office intervened, expressing an interest the [LULAC et al consolidated] case and urging Rodriguez not to dismiss the claims. Voting lawsuits brought by private groups were necessary, the filing argued, due to the “limited federal resources available for Voting Rights Act enforcement” and because states with histories of voter restrictions no longer had to seek federal preclearance for voting changes following the 2013 U.S. Supreme Court decision in Shelby County v. Holder.

Later that month, the AG’s office also filed suit against the Lone Star State. In a strongly worded complaint, federal officials argued that Texas already had some of the “strictest [voting] limitations in the nation” and that SB1 would “impermissibly” restrict and disenfranchise voters.

Texas’s “history of official voting-related discrimination against its disfavored citizens is longstanding and well-documented,” the complaint said. “Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas.”

This lengthy and complex legal battle, involving a variety of parties, led up to Tuesday’s order. Over the months, Texas officials have tried numerous avenues to dismiss the case.

Among other things, state officials zeroed in on the state’s new voter ID and mail-in ballot requirements. Because the state allows voters to “cure” their ballots, they argued, the law did not deny the right to vote.

Rodriguez rejected this argument and others, writing that a voter’s opportunity to cure their ballot “does not necessarily mean” that SB 1 did not violate the Civil Rights Act. The law does not allow state officials to “initially deny the right to vote…as long as they institute cure processes,” he wrote. Instead, it bars these actions altogether.

He also found that, while local elections officials may be in charge of implementing the law, SB 1 was in fact “traceable” to state officials, and therefore they could be sued. Since the law has so far been in effect for the state’s primary elections, the U.S. government had also alleged an injury, he found.

Rather than issuing an injunction preventing enforcement of parts of SB 1, Rodriguez’s order instead simply allows the U.S. government to continue with its lawsuit. It remains to be seen how the case will play out, including whether controversial aspects of SB 1 will remain in effect for the 2022 midterm elections later this year.

There’s a long road ahead for this litigation, and at the end awaits a US Supreme Court that is extremely hostile to voting rights. But you have to start somewhere, and who knows, maybe the landscape will change by that time.

SCOTx answers the Fifth Circuit’s questions

Jun 12th, 2022
by Charles Kuffner.
2 comments

Some late-breaking SB1 lawsuit news.

The Texas Supreme Court issued a ruling Friday on the term “solicit” as it pertains to the state’s new election code.

[…]

Of three main issues, one raised several questions pertaining to the definition of “solicit.” The questions arose after the plaintiff, Harris County Elections Administrator Isabel Longoria, argued the vagueness of the term. In one argument, Longoria’s attorneys requested that the term “solicit” be tethered only to vote-by-mail applications sent to those ineligible voters.

State justices rejected that request.

“The statute does not prohibit solicitation merely of those ineligible to vote by mail. Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the opinion read.

In a second request, Longoria’s team argued that “solicitation” in its broad definition could include terms that are less forceful in nature, including “encourage” or “request.

The defendant, Texas Attorney General Ken Paxton’s team, said it defined “solicit” as beyond encouragement, but more so “importuning or strongly urging.” Paxton said that stating “please fill out this application to vote by mail” would constitute solicitation.

While justices refrained from defining “solicit,” stating they were not requested to, they agreed with Paxton that “solicit” is not limited to demands that a person submit an application to vote by mail, but includes statements such as “please fill out this application to vote by mail.”

But justices did find that telling potential voters they have the opportunity to apply for mail-in ballots does not constitute solicitation.

“The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one,” the opinion read. “Without expressing an opinion as to any particular statement plaintiffs may wish to make, we conclude that (the law) does not include broad statements such as telling potential voters that they have the opportunity to apply for mail-in ballots.”

See here and here for the background, and here for the opinion. As noted in the previous update, by this time both sides had agreed that Volunteer Deputy Registrars (VDRs) were not public officials and (I presume) not covered by SB1, and that the Attorney General did not have enforcement power for SB1 (not clear to me if District Attorneys might, however). I expect this means that the Fifth Circuit will rule that plaintiff Cathy Morgan, who is a VDR, has no standing to sue.

On the three-part question that SCOTx did have to answer, my reading is that under SB1 it would be illegal for a county elections administrator to pre-emptively send a vote by mail application to everyone who is eligible to vote by mail, as Chris Hollins did in 2020. Such applications can only be sent to people who ask for them. Providing general information about the vote by mail process, including how to apply, would not be barred. I still think the whole thing is a ridiculous over-reaction to what Hollins did in 2020, and that we should be making it easier to vote by mail in general, but all things considered, compared to where we were before SB1, this isn’t a major setback.

It should be noted that there’s still a lot of room for future disputes here, which likely will remain the case even after a final ruling in this lawsuit. From the opinion, on the matter of the definition of the word “solicit”:

The Fifth Circuit next asks whether “solicits” is “limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies).” 2022 WL 832239, at *6. Plaintiffs suggest that the ordinary meaning of “solicit” includes speech that lacks the insistence normally associated with a demand. According to Plaintiffs, the term’s ordinary meaning includes speech that is far less forceful. Indeed, under their view, solicitation includes all the following: “requesting, urging, encouraging, seeking, imploring, or inducing.”

Paxton argues that the Legislature could not have intended to sweep so broadly. He argues, for example, that “solicits” cannot include mere encouragement of an action because the Legislature has used both “solicits” and “encourages” in many statutes, indicating that they have different meanings. See, e.g., TEX. EDUC. CODE § 37.152(a) (“A person commits an offense if the person . . . solicits, encourages, directs, aids, or attempts to aid another in engaging in hazing . . . .”); TEX. PENAL CODE § 7.02(a)(2) (holding a person criminally responsible for another’s offense if the person “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense”); cf. TEX. ELEC. CODE § 13.031(a) (stating that the purpose of appointing VDRs is “[t]o encourage voter registration”). Paxton urges us to define “solicits” to exclude mere encouragement and to require “importuning or strongly urging.” But Paxton also concedes that stating “please fill out this application to vote by mail” would constitute solicitation.

Whether a particular statement constitutes solicitation for purposes of Section 276.016(a)(1) will, of course, be informed by the precise words spoken and by surrounding context. We therefore do not endeavor to articulate today a comprehensive definition of “solicits” as the term is used in Section 276.016(a)(1). Nor do we express an opinion as to whether any of the general categories of statements Plaintiffs say they wish to make constitutes solicitation. We will leave for another case, with a more developed record, the task of defining the term’s outer reach. For today, we believe it is sufficient to hold that, for purposes of Section 276.016(a)(1), “solicits” is not limited to demands that a person submit an application to vote by mail. As Paxton acknowledges, “solicits” includes statements that fall short of a demand, such as “please fill out this application to vote by mail.”

So Isabel Longoria is arguing that SB1 is super-restrictive on this point, while Ken Paxton is saying, nah, not really. The Court is saying they don’t want to get involved just yet, better to see what happens in the real world rather than rule on hypotheticals, and work with a more complete set of facts. If the parties’ arguments seem backwards to you, the Court addressed that in a footnote:

In a criminal prosecution (or civil-enforcement action), one ordinarily might expect the government to take a broad view of the statute’s application and the defendant to take a narrow view. But to establish (or defeat) a plaintiff’s standing in a pre-enforcement challenge, the plaintiff has an incentive to argue that the statute does apply to her, while the government has an incentive to argue it does not. The unusual dynamic present here contributes to our reluctance to make wide-ranging proclamations on the issues of state law presented.

In other words, at this point in time before the law has really been applied to anyone, the plaintiffs want the Court to believe that the law is vast and (they claim) over-reaching and must be struck down, while the defense wants the Court to think that the law is more modest and thus not a threat to anyone’s Constitutional liberties. Needless to say, when the law is eventually enforced by someone, those arguments will be reversed.

So it’s now back to the Fifth Circuit. I wish there had been more coverage of this – I grant, the opinion dropped on Friday afternoon and some people have lives – but so far all I’ve seen is this story from a site in Greenville (?) and one from a partisan site; I also found paywalled stories at Law.com and Bloomberg Law, but couldn’t read them. Maybe next week one of the regulars will have something, which I hope will include a bit of analysis from someone with actual law knowledge. Until then, this is what I think I know.

SCOTUS puts Texas’ stupid social media censorship law back on hold

Jun 1st, 2022
by Charles Kuffner.
1 comment

Good.

The U.S. Supreme Court on Tuesday blocked a Texas law that prohibits large social media companies, such as Facebook or Twitter, from banning or removing users’ posts based on political viewpoints.

The justices, in a 5-4 vote, granted NetChoice and the Computer & Communications Industry Association’s request to reinstate a block imposed by a federal district judge as the lawsuit makes its way through the courts. The justices who voted to reverse the lower court’s ruling didn’t give a reason for their decision — a standard practice when the court is ruling on emergency applications.

Matt Schruers, president of the Computer & Communications Industry Association, one of the two groups that sued to block the law on claims that it violates companies’ First Amendment rights, celebrated the court’s decision.

“No online platform, website, or newspaper should be directed by government officials to carry certain speech,” he said in a statement. “This has been a key tenet of our democracy for more than 200 years and the Supreme Court has upheld that.”

[…]

The two industry trade groups that represent companies such as Google and Twitter sued to block the law last fall. In December, a federal district court judge ruled in favor of the groups and prevented the law from going into effect, reasoning that the First Amendment protects a company’s right to moderate content and calling parts of the law “prohibitively vague.”

As a result, Paxton appealed the district judge’s decision to the 5th Circuit Court of Appeals, which reinstated the law.

Three conservative justices, Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch, said in a dissent that they would have let Texas’ law stand for now. Justice Elena Kagan, a liberal, said she would have also let the order stand but didn’t provide a reason.

Alito wrote in the dissent that it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Still, he wrote, the case is “of great importance” and the Supreme Court would have to review the arguments at some point.

“Social media platforms have transformed the way people communicate with each other and obtain news,” he wrote. “At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

See here for the previous update and here for a copy of the order. With the Florida law being knocked down by the 11th Court of Appeals, there’s a circuit split, which means that Alito is correct and SCOTUS is going to have to deal with this sooner or later. At least it will be on hold until then. The Chron has more.

Florida’s stupid social media censorship law knocked down by appeals court

May 25th, 2022
by Charles Kuffner.
1 comment

With an opinion from a Trump judge, no less.

A Florida law intended to punish social media platforms such as Facebook and Twitter is an unconstitutional violation of the First Amendment, a federal appeals court ruled Monday, dealing a major victory to companies who had been accused by GOP Gov. Ron DeSantis of discriminating against conservative thought.

A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously concluded that it was overreach for DeSantis and the Republican-led Florida Legislature to tell the social media companies how to conduct their work under the Constitution’s free speech guarantee.

“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” said Circuit Judge Kevin Newsom, an appointee of former President Donald Trump, in the opinion. “We hold that it is substantially likely that social media companies — even the biggest ones — are private actors whose rights the First Amendment protects.”

The ruling upholds a similar decision by a Florida federal district judge on the law, which was signed by DeSantis in 2021. It was part of an overall conservative effort to portray social media companies as generally liberal in outlook and hostile to ideas outside of that viewpoint, especially from the political right.

[…]

As enacted, the law would give Florida’s attorney general authority to sue companies under the state’s Deceptive and Unfair Trade Practices Act. It would also allow individual Floridians to sue social media companies for up to $100,000 if they feel they’ve been treated unfairly.

The bill targeted social media platforms that have more than 100 million monthly users, which include online giants as Twitter and Facebook. But lawmakers carved out an exception for the Walt Disney Co. and their apps by including that theme park owners wouldn’t be subject to the law.

The law would require large social media companies to publish standards on how it decides to “censor, deplatform, and shadow ban.”

But the appeals court rejected nearly all of the law’s mandates, save for a few lesser provisions in the law.

“Social media platforms exercise editorial judgment that is inherently expressive. When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity,” Newsom wrote for the court.

You can see a copy of the ruling here, and contrast it to the wordless garbage the Fifth Circuit spewed out to allow Texas’ law to stand. This means that SCOTUS will have to get involved to resolve the dispute. It’s going to get ugly in here. Reuters, CNET, and Techdirt, which shows the parts of the lower court’s ruling that were upheld and the parts that were vacated, have more.

Texas asks SCOTUS to not block its stupid social media law

May 20th, 2022
by Charles Kuffner.
1 comment

As you’d expect.

The Supreme Court should allow a sweeping Texas law to remain in effect that restricts the ability of Facebook, Twitter and YouTube to moderate their platforms, according to the state’s attorney general.

In a filing to the Court on Wednesday, Texas argued that its law, HB 20, which prohibits large social media firms from blocking, banning or demoting posts or accounts, does not violate the First Amendment.

It contrasts with claims by opponents, including the tech industry, that the legislation infringes on the constitutional rights of tech platforms to make editorial decisions and to be free from government-compelled speech.

[…]

A group of states led by Florida has also submitted a Court filing defending Texas’s law. The friend-of-the-court brief, which was authored by a dozen states including Alabama, Arizona, Kentucky and South Carolina, among others, reflects how the legal battle over HB 20 has nationwide ramifications.

Justice Samuel Alito is currently considering whether to grant an emergency stay of a lower court decision that had allowed the law to take effect last week. The law is being challenged by advocacy groups representing the tech industry.

[…]

The case has already drawn “friend of the court” briefs from interested third parties including groups such as the Anti-Defamation League and the Texas State Conference of the NAACP, who urged the court to block the law, arguing it will “transform social media platforms into online repositories of vile, graphic, harmful, hateful, and fraudulent content, of no utility to the individuals who currently engage in those communities.”

Also seeking to file a third-party brief was former Rep. Chris Cox, co-author of the tech platform liability shield known as Section 230 of the Communications Decency Act, a federal law that explicitly permits websites to moderate content and which has become a lightning rod in the wider battle over digital speech.

Social media operators have repeatedly cited Section 230 to successfully nip many suits in the bud concerning user-generated content. But HB 20 conflicts with Section 230 by saying platforms can be sued in Texas for moderating their online communities, raising questions about the future of the federal law that’s been described as “the 26 words that created the internet.”

See here and here for some background. Alito will either issue a decision on his own or refer the matter to the full court. Insert shrug emoji here.

SCOTUS asked to again block that stupid social media censorship law

May 17th, 2022
by Charles Kuffner.
1 comment

Please save us from the lawless Fifth Circuit. Having to make such an ask of this SCOTUS sure is a jaw-grinding experience.

Lobbying groups representing Facebook, Twitter, Google and other tech companies filed an emergency request with the U.S. Supreme Court on Friday, seeking to block a Texas law that prohibits large social media platforms from banning users based on their political views.

The Texas law went into effect on Wednesday when the 5th U.S. Circuit Court of Appeals granted the state’s request for a stay of a district judge’s injunction blocking the law.

The law forbids social media companies with more than 50 million active users per month from banning members based on their political views and requires them to publicly disclose how they moderate content.

[…]

Internet lobbying groups NetChoice and the Computer & Communications Industry Association filed a lawsuit against the measure, and U.S. District Judge Robert Pitman in Austin, Texas, issued a preliminary injunction in December.

Pitman had found that the law would harm social media companies’ free speech rights under the First Amendment of the U.S. Constitution.

The tech groups, in their emergency request, asked the Supreme Court to “allow the District Court’s careful reasoning to remain in effect while an orderly appellate process plays out.”

See here for the previous update, and here for a more detailed analysis of why the Fifth Circuit’s no-words ruling was so bad. You know how much faith I have in this court to ever do the right thing, but maybe this was a bridge too far. Maybe. Ars Technica and The Verge have more.

SCOTx ponders the questions the Fifth Circuit asked it about SB1

May 15th, 2022
by Charles Kuffner.
1 comment

Seems like there’s not that much in dispute, but there’s always something.

Texas Supreme Court justices questioned during oral argument if they should answer certified questions from a federal appeals court about challenges to an election law that created penalties for soliciting voters to use mail-in ballots.

The case, Paxton v. Longoria, concerns a First-Amendment issue over how provisions in Senate Bill 1, a 2021 law, could lead to civil penalties and or criminal prosecution of county election administrators and volunteer deputy registrars.

During a Wednesday hearing before the court, the foremost issue that appeared to concern the justices was whether they should provide an advisory opinion to the U.S. Fifth Circuit Court of Appeals at all.

Since the case has progressed from federal district court to the Fifth Circuit and on to the state Supreme Court, the parties positions have changed and the justices find themselves in the unusual position of being asked to answer three questions where there is very little if any disagreement between the parties.

The Fifth Circuit asks the justice to answer whether a volunteer deputy registrar, or VDR, is a public official under the Texas Election Code; whether speech the plaintiffs intend to use constitutes “solicitation” within the context of the state code; and whether the Texas Attorney General has the power to enforce that code.

The plaintiffs are Harris County Elections Administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who assists people with mail-in ballots in Travis and Williamson counties.

The state, represented by Lanora Pettit, a principal deputy solicitor general with the Office of Attorney General, acknowledged in her brief that volunteer deputy registrars are not public officials subject to prosecution; the term “solicit” does not include merely providing information but instead requires “strongly urging” a voter to fill out an application that was not requested; and the Attorney General is not a proper official to seek civil penalties.

Sean Morales-Doyle of the Brennan Center for Justice at New York University School of Law submitted a brief that was in line with Pettit on the first and third questions, but had a nuanced distinction on the question of solicitation’s meaning.

Justice Jeff Boyd asked Morales-Doyle, “I’m just not sure why the dispute matters. If everybody agrees that the VDR is not a public official, so therefore has no standing, everybody agrees that Ms. Longoria has not … indicated any intent to violate in Williamson County, and everybody agrees the attorney general has no enforcement authority , where’s the case or controversy?”

Morales-Doyle said that Morgan began the case with a reasonable fear of prosecution and while the state has indicated a disinclination to prosecute she does not know the position of the Travis County district attorney, nor what future district attorneys would do.

If the questions are not answered, she would therefore still need to have the temporary injunction in place, he said.

On defining solicitation, because a felony criminal prosecution is possible, Justice Jane Bland asked if the state should limit its meaning to the penal code’s definition, which would restrict the term to situations where a public official induces someone to commit a criminal act.

Morales-Doyle supported that approach, noting that every criminal solicitation statute that he is aware of applies only to solicitation of criminal conduct.

“What is troubling everybody—and apparently troubling the attorney general who wants to give a definition of solicitation that I’m not aware existing in any criminal code—is the absurd result that someone could be held criminally liable for encouraging their fellow citizen to vote,” Morales-Doyle said.

On rebuttal, Pettit argued that sanctionable solicitation is not limited to criminal inducement. She cited the example of barratry, where lawyers unlawfully solicit clients for profit.

See here for the background. The bottom line is that the plaintiffs have asked for a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The motion was granted by a district court judge and then put on hold by the Fifth Circuit. I think the Fifth Circuit is evaluating whether to put the injunction back in place while the rest of the initial lawsuit is litigated, but we are in the weeds here and I don’t have certainty about that. Let’s see what SCOTx says first and maybe that will clue me in. (Any lawyers out there that want to help, by all means please do.)

That stupid social media censorship law has been unblocked

May 13th, 2022
by Charles Kuffner.
4 comments

The Fifth Circuit continues to debase itself.

A federal appeals court on Wednesday reinstated a Republican-backed Texas law that prohibits large social media companies from banning users over their political viewpoints.

The decision hands a win to Republicans who have long criticized social media platforms such as Twitter for what they call anti-conservative bias — disapproval that was amplified when President Donald Trump was banned from Twitter for violating the platform’s rules on inciting violence during the Jan. 6, 2021, riot at the U.S. Capitol.

The order did not evaluate the law on its constitutionality but instead allows the law to go back into effect while the case proceeds in district court, according to a statement from one of the plaintiff groups. The ruling came from a three-judge panel on the 5th U.S. Circuit Court of Appeals — which is often considered the most conservative appeals court in the country — and was not accompanied by a written opinion explaining the decision at the time of publication.

Two large industry trade groups that represent companies such as Google and Twitter sued to block the law last fall.

In December, a federal district court judge ruled in favor of the groups and blocked the law while the lawsuit continues, reasoning that the First Amendment protects a company’s right to moderate content and called parts of the law “prohibitively vague.” As a result, Texas Attorney General Ken Paxton appealed the district judge’s decision to the circuit court.

Passed during a special session last year, House Bill 20 also requires social media platforms with more than 50 million monthly users to publicly disclose information about content removal and account suspensions.

“HB 20 is an assault on the First Amendment, and it’s constitutionally rotten from top to bottom,” Chris Marchese, counsel for the NetChoice industry trade group, tweeted after the ruling. “So of course we’re going to appeal today’s unprecedented, unexplained, and unfortunate order by a split 2-1 panel.”

See here, here, and here for the background. I’ve been beaten down by the constant flow of atrocities from this outlaw court, so I’m going to hand it off to one of the plaintiffs’ attorneys:

Which means we have to hope there are still a few people on that bench who understand what the First Amendment says. I don’t have any faith, but what are you gonna do? Slate and Reform Austin have more.

Providers’ federal lawsuit against SB8 is officially buried

May 3rd, 2022
by Charles Kuffner.
1 comment

From last week.

The 5th U.S. Circuit Court of Appeals on Tuesday ended a legal challenge to Texas’ nearly total ban on abortion brought by providers across the state, closing out a contentious court battle that reached the U.S. Supreme Court.

The appeals court dismissed the remaining challenge in the suit after the Texas Supreme Court in March said state licensing officials are not responsible for enforcing the abortion ban and therefore cannot be sued.

A three-judge panel of the 5th Circuit in January asked the state’s high court to resolve this central question to the case, an unusual move made at the request of attorneys for the state that was expected to significantly delay or end the challenge.

[…]

In December, a divided U.S. Supreme Court dismissed all but one challenge in the lawsuit brought by abortion providers. Justices allowed a narrower case, targeting state licensing officials, to proceed in Texas courtrooms.

But Tuesday’s action by the 5th Circuit officially dismisses the case.

It was all over but for the shouting when the State Supreme Court ruled that state medical licensing officials do not have authority to enforce SB8, but the real villain as always was the Fifth Circuit, which engineered the result it wanted. Like I said, the fix was in from the beginning.

As the story notes, there are two more active lawsuits to watch, one by abortion funds against several anti-abortion organizations and individuals, and one by Wendy Davis. I feel like the former is more promising than the latter, but who knows. A state judge had previously ruled that SB8 was unconstitutional but for reasons still unclear declined to issue an injunction against it; I suppose that could change at some point. Until then, here we are.

UPDATE: Yes, I’m aware of the leaked draft opinion that eviscerates Roe v Wade. I maintain that the Fifth Circuit is the prime villain of this story, given how they completely disregarded normal procedures, but SCOTUS’ villainy cannot be overstated either.

SCOTUS unanimously rejects Dave Wilson

Mar 28th, 2022
by Charles Kuffner.
Comments are off for this post

Poor baby.

Dave Wilson

The U.S. Supreme Court on Thursday ruled against former Houston Community College trustee Dave Wilson, finding that he didn’t have an actionable First Amendment claim after suing his colleagues for verbally censuring him in 2018.

In a 9-0 vote, the justices firmly sided with the community college system, whose board members reprimanded their colleague after he allegedly violated board bylaws for months and incurred thousands of dollars in legal costs for the college. The then-District II trustee — known in Houston at the time for being an anti-gay rights activist — was usually the board’s lone no-vote and frequently bit back at the administration.

Wilson continued to speak critically after his censure, making it difficult to prove that the action chilled his speech, the court ruled. And the board’s decision fell under the trustees’ own First Amendment rights.

“The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy,” Justice Neil Gorsuch wrote in the opinion. “But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”

Wilson on Thursday claimed the justices did not adequately respond to what he said was his main argument — that he faced penalties beyond a verbal denouncement. After the censure, trustees decided that Wilson was not eligible for travel-related expense reimbursements and would need board approval when requesting funding for community affairs programs for the 2017-2018 college year. They also determined he could not be elected for a board officer position in 2018, all of which Wilson said violated his rights, according to court documents.

“It was poorly reasoned. The court didn’t take on any of the arguments that we made in our briefs,” he said. “The court made up facts to decide the case that it wanted to see rather than the facts that were presented.”

[…]

Hours after reading the document for the first time, Wilson conceded that he understood why the court didn’t take up the issue of nonverbal punishments. And he said he felt the loss at least affirmed his First Amendment rights in speaking out on the college’s “underhanded dealings.”

See here and here for the background. A link to the opinion plus a brief excerpt can be found here. All I can say is what a loser. Dave Wilson has been a stain on our politics for a long time. I hope he spent a lot of his own money on this ridiculous pursuit.

More on the abortion funds’ lawsuits

Mar 25th, 2022
by Charles Kuffner.
3 comments

Good overview in the WaPo.

The Texas law has so far withstood multiple court challenges by employing a highly controversial legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion after the legal limit. Abortion rights advocates have tried to sue a long list of people in federal court in hopes of overturning S.B. 8, including Texas law clerks, judges and medical board officials — but, in each case, courts found that they were going after the wrong people.

After a month of fielding threats from these antiabortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them have identified themselves as the ones enforcing the law — and, therefore, the ones for abortion rights advocates to hold to account in federal court.

In these cases, the Lilith Fund and the North Texas Equal Access Fund are suing the America First Legal Foundation and the Thomas More Society, two antiabortion legal groups, in federal court, as well as two private citizens in Texas state court. Abortion funds, which raise money to help low-income patients seeking abortion care, have been instrumental in helping patients reach abortion clinics in other states since the Texas ban took effect.

The Thomas More Society’s “invocation of, and intent to enforce, S.B. 8 poses imminent and existential threats to the fundamental and constitutional rights of Plaintiffs, their staff, their volunteers, and their donors,” the abortion funds wrote in their court filing on Wednesday.

The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves, their staff, their volunteers and their donors from the coordinated efforts by people and organizations across the country that have made it clear they intend to enforce S.B. 8 by filing lawsuits against abortion funds,” said Elizabeth Myers, one of the lawyers representing the abortion rights groups.

[…]

Some legal scholars think the new lawsuits by the abortion funds could pose a threat to S.B. 8 now that various people and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas School of Law, who specializes in the federal courts and has closely followed the Texas abortion ban.

“This case is not hypothetical because these particular defendants are in the process of pursuing various kinds of enforcement actions,” said Vladeck. After six months of trying to block the Texas law, abortion funds are probably thinking: “Now we finally have someone. Get out of our way, let’s go,” Vladeck said.

David Cohen, a law professor at Drexel Kline School of Law who specializes in gender and constitutional law, called the latest lawsuit a “brilliant move.” The abortion funds have built a legal case that “avoids many of the challenging legal problems of the previous lawsuits,” he added.

Even if a federal court judge does block the law, Vladeck said, the injunction will probably only apply to the particular defendants listed in the case. While those specific people and organizations would no longer be able to sue under S.B. 8, any other private citizen could still file a lawsuit.

At that point, Vladeck said, Texas abortion providers will have to decide whether they are comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face other lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident that they would win.

With these cases, Vladeck added, abortion rights groups are “building the defensive position.”

“They’re going to court to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face.”

See here and here for some background. I found that story on Tuesday, and on Thursday, the Trib had this to add.

“We are hopeful that any judge who looks at this will recognize the civil enforcement mechanism for what it is … and say these cases aren’t really about abortion,” said Elizabeth Myers, an attorney representing the abortion funds.

Instead, she said, their legal challenge is about stopping the “millions of bounty hunters who can sue in a very rigged one-sided court system” under the law’s private enforcement mechanism.

Aspects of this argument have already succeeded in state court, where a Texas judge found the law to be unconstitutional but declined to block it from being enforced. Now, the same lawyers are taking the case to federal court, where challenges to the law have faltered before.

But this attempt will have an advantage that those did not: The federal suits are filed in Chicago and Washington, D.C., rather than Texas, which allows the plaintiffs to avoid the extremely conservative 5th U.S. Circuit Court of Appeals.

The other two suits are filed in state court and have been added to ongoing multidistrict litigation, where all legal proceedings are stayed while the case is appealed.

South Texas College of Law Houston professor Rocky Rhodes said there are potential obstacles to this approach in federal court, but it’s the “best bet” to block the law that he’s seen yet.

“This is a better procedural mechanism to get the case before the [U.S.] Supreme Court … and it addresses many of the issues from the previous challenges,” he said. “And then, of course, a Supreme Court ruling is binding on all state and federal courts.”

[…]

When the Lilith Fund tweeted a request for donations, the Thomas More Society responded by saying “donors could get sued under SB8” and linking to the press release about its efforts to depose the funds’ leaders.

This makes it clear that the anti-abortion groups intend to bring lawsuits under the Texas abortion law, the new filings argue, and thus the groups can be sued proactively to stop them from doing so.

Neither the Thomas More Society or the America First Legal Foundation responded to requests for comment.

Rhodes has argued in several papers that this is a strong angle to challenge the law.

“This mechanism of ‘wait until you know someone is going to sue you, and then sue them in federal court first,’ is one of the best ways to get an offensive challenge teed up to [the law],” he said.

The filings argue that the abortion law violates advocates’ right to free speech by limiting how they talk to clients, advocate for abortion access and spend their donations, which could be considered political speech. In addition, they argue it is so vague that plaintiffs may not know what conduct is allowed or prohibited; it creates special rules that only apply to these lawsuits, which violates plaintiffs’ rights to equal protection under the law; and allows lawsuits to be brought by people who do not have standing because they have not been directly injured.

If a federal judge agrees with some aspects of these arguments, they could grant an injunction, stopping the Thomas More Society and the America First Legal Foundation from bringing lawsuits against the two abortion funds. The lawsuit also seeks a declaration that the law is “unconstitutional, void, of no effect and therefore not usable” — by anyone.

That wouldn’t stop anyone besides these two groups from bringing lawsuits, but it would create federal court precedent that could be cited in future litigation, Rhodes said.

[…]

Unlike previous legal challenges to the abortion law, these lawsuits deliberately sidestep the most highly politicized aspects of the law.

“This [case] is not really about abortion,” said Myers. “We’re not challenging the six-week ban.”

Myers said that’s not because they believe the six-week ban is constitutional, but rather because the courts may be more open to hearing arguments as to why other aspects of the law are also unconstitutional.

You gotta do what you gotta do, and if this can lead to taking the bounty hunting out of the picture, it will be a lot better. Indeed, that would allow abortions to continue in Texas, at least until SCOTUS can do more violence to Roe v Wade. But that day hasn’t happened yet, and with other states adopting similar bounty hunter laws, we have to deal with the immediate threat. Let’s hope for the best.

Fifth Circuit asks SCOTx for help on some SB1 issues

Mar 25th, 2022
by Charles Kuffner.
Comments are off for this post

The Twitter summary:

To recap the history here, back in September a group of plaintiffs including Isabel Longoria filed one of many lawsuits against SB1, the voter suppression law from the special sessions. In December, a motion was filed to get a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. A federal district judge granted the motion, which would have applied to the primaries, and I’m willing to bet would have helped ease the confusion that led to all of those rejected mail ballots, but the Fifth Circuit, as is their wont, put a hold on the injunction.

It’s not clear to me where things are procedurally with this litigation – and remember, there are a bunch of other cases as well – but in this matter the Fifth Circuit wanted to get some clarity on state law before doing whatever it has on its docket to do. Let me just show you what that second linked file says:

The case underlying these certified questions is a pre-enforcement challenge to two recently enacted provisions of the Texas Election Code: section 276.016(a) (the anti-solicitation provision) and section 31.129 (the civil-liability provision) as applied to the anti-solicitation provision. The anti-solicitation provision makes it unlawful for a “public official or election official” while “acting in an official capacity” to “knowingly . . . solicit[] the submission of an application to vote by mail from a person who did not request an application.” The civil-liability provision creates a civil penalty for an election official who is employed by or an office of the state and who violates a provision of the election code.

Isabel Longoria, the Harris County Elections Administrator, and Cathy Morgan, a Volunteer Deputy Registrar serving in Williams and Travis counties, sued the Texas Attorney General, Ken Paxton, to enjoin enforcement of the civil liability provision, as applied to the anti-solicitation provision. And in response to the recent Court of Criminal Appeals case holding that the Texas Attorney General has no independent authority to prosecute criminal offenses created in the Election Code, they also sued the Harris, Travis, and Williamson County district attorneys to challenge the criminal penalties imposed by the anti-solicitation provision. The plaintiffs argue that the provisions violate the First and Fourteenth Amendments because the risk of criminal and civil liability chills speech that “encourage[s] voters to lawfully vote by mail.

After an evidentiary hearing, the district court granted the plaintiffs’ motion for a preliminary injunction, enjoining the defendants from enforcing and prosecuting under the provisions. Paxton and one of the district attorneys (Shawn Dick of Williamson County) appealed. Because the Harris and Travis County district attorneys did not appeal, only Longoria’s challenge to the civil penalty permitted by the civil-liability provision and the Volunteer Deputy Registrar’s challenge to the criminal liability imposed under the anti-solicitation provision were at issue in the appeal.

On its own motion, the U.S. Court of Appeals for the Fifth Circuit has certified the following questions to the Court:

(1) Whether Volunteer Deputy Registrars are “public officials” under the Texas Election Code;

(2) Whether the speech Plaintiffs allege that they intend to engage in constitutes “solicitation” within the context of Texas Election Code § 276.016(a)(1). For example, is the definition narrowly limited to seeking application for violative mail-in ballots? Is it limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies) or does it broadly cover the kinds of comments Plaintiffs stated that they wish to make: telling those who are elderly or disabled, for example, that they have the opportunity to apply for mail-in ballots?; and

(3) Whether the Texas Attorney General is a proper official to enforce Texas Election Code § 31.129.

The Court accepted the certified questions and set oral argument for May 11, 2022.

You now know everything I know. Let’s see what happens in May.

A trifecta of crap from the Fifth Circuit

Mar 18th, 2022
by Charles Kuffner.
1 comment

It’s what they do.

A federal appeals court has ruled for Texas in three lawsuits challenging the state’s voting laws, including mail-in ballot provisions and the elimination of straight-ticket voting.

In a series of 2-1 rulings Wednesday evening, a panel of the 5th U.S. Circuit Court of Appeals ruled that the lawsuits by civil rights groups, political organizations and voters targeted the wrong state agency — the Texas secretary of state’s office — when they sought to overturn a string of voting laws and practices.

Because the secretary of state is not in charge of enforcing the challenged laws, the agency is protected by sovereign immunity in all three lawsuits, said the opinions written by Judge Stuart Kyle Duncan and joined by Judge Don Willett.

Judge Patrick Higginbotham dissented in all three cases, writing that he believed the majority was splitting hairs by narrowly interpreting which state officers enforce election laws.

The secretary of state is the chief election officer of Texas who is charged by law with protecting the voting rights of Texans “from abuse by the authorities administering the state’s electoral processes,” Higginbotham wrote.

“The allegation in these cases is that the Secretary is failing in that duty. This charge should satisfy our … inquiry,” he said.

Reporter Chuck Lindell first posted about this on Twitter, so if for some reason the Statesman link doesn’t work or gets paywalled, you can see the basics there. Let’s break down the three cases:

A challenge by the Texas Alliance for Retired Americans and two national Democratic organizations sought to overturn a 2017 law that ended straight-ticket voting, also known as one-punch voting because it lets voters select all candidates of a particular political party in one step.

A state district judge barred enforcement of the law, ruling in September 2020 that the change unconstitutionally burdened the right to vote.

See here and here for the background. This one confused me at first, because there had been a basically identical challenge filed earlier in the same court by a different set of plaintiffs that was later dismissed by that judge. I don’t know why the subsequent challenge, which fell under the Democracy Docket umbrella, was more successful, but there you have it. You may recall I was skeptical of this one, and of the three it’s the one I’m the least upset about. The Fifth Circuit’s ruling is here.

A lawsuit by the NAACP and Texas Alliance for Retired Americans sought to block mail-in ballot regulations that require voters to pay for postage and mandate that ballots be postmarked by 7 p.m. on Election Day and received by 5 p.m. on the next day.

The lawsuit also challenged signature-matching requirements and a law that makes it a crime to possess another voter’s mail ballot.

See here and here for the background. I thought this was an interesting suit that made a reasoned case and that in a fair world would have gotten a more thoughtful review by the Fifth Circuit, but that ain’t the world we live in. I don’t know if this subject was addressed in one of the many voting rights bills that Joe Manchin and Kyrsten Sinema personally strangled (with the help of all 50 Republicans, of course), but if there’s ever another opportunity to address voting rights at a federal level, this should be an item on the to do list. The Fifth Circuit opinion is here.

A lawsuit by groups including the League of Women Voters of Texas and the Coalition of Texans with Disabilities challenged the process of verifying mail-in ballots by ensuring that the voter’s signature on the outside envelope matches the signature on the vote-by-mail application.

A trial judge granted a detailed injunction limiting the practice in September 2020, but again the 5th Circuit Court stepped in to halt the injunction until the appeal was decided. Wednesday’s ruling vacated the injunction.

See here, here, and here for the background. Remember when signature matching was our biggest concern about mail ballots? Boy, those were the days. Anyway, even though this suit was filed in 2019, that injunction was halted by a different Fifth Circuit panel because it was too close to the election. There’s always, always an excuse. The opinion for this one is here.

The first and third cases were reversed and remanded to the district court “for further proceedings consistent with this opinion”, while the second was reversed and remanded with instructions to dismiss. I’m not quite sure what further proceedings there may be, and it may be that the bigger problems caused by SB1 may make the third case not particularly relevant at this time, I dunno. I assume that since the issue cited by the Fifth Circuit was that the SOS was not the proper defendant, the cases could be refiled with some number of county election administrators as defendants instead. I don’t know how practical that would be, and I also don’t know if this is just a prelude to the Fifth Circuit (or later SCOTUS) ruling that actually you can’t sue those people either, because the whole idea that you can pursue redress in a federal court is just an illusion anyway or whatever. We’ll see if anything does get refiled, but I would not feel particularly optimistic about any of it.

UPDATE: And when I checked Twitter on Thursday, I saw that Prof. Vladeck had addressed my questions.

Always expect the worst from the Fifth Circuit. You’ll almost never be wrong.

SCOTx hears SB8 argument

Feb 26th, 2022
by Charles Kuffner.
2 comments

I’ll be honest, I had not realized this was on the calendar.

The Texas Supreme Court got its first chance to weigh in on the state’s new abortion law Thursday, hearing arguments in a narrow challenge to the restrictions, which have blocked access to abortions after about six weeks of pregnancy for nearly six months.

This hearing before the nine-justice high court is an interim step in the ongoing federal lawsuit brought by abortion providers trying to challenge the law. The 5th U.S. Circuit Court of Appeals asked the Texas Supreme Court to weigh in on a question of state law before the appeals court proceeds with its own ruling in the case.

The law, passed as Senate Bill 8, is designed to evade judicial review, a goal at which it has so far been successful. It specifically precludes state officials from enforcing it, instead deputizing private citizens to bring civil lawsuits against anyone who “aids or abets” an abortion after cardiac activity is detected in an embryo, usually around six weeks of pregnancy.

Lawyers representing the abortion providers are trying to prove that the state itself actually will enforce the law, which would open a legal window for them to seek an injunction on some aspects of the law. They argued that the law is enforced by court clerks who docket the lawsuits, judges who hear them, the attorney general and others.

The U.S. Supreme Court threw out most of those arguments in a December ruling that allowed the law to remain in effect. The justices did allow one question to proceed, over whether state medical licensing officials play a role in enforcing the law.

Those agencies would potentially be responsible for disciplining or revoking the licenses of doctors, nurses and pharmacists who violate the law; an injunction would stop them from doing so, but would leave the crux of the law in place.

[…]

At Thursday’s hearing, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

The justices questioned whether doctors might be obligated by the rules of the state’s medical licensing board to report any lawsuits brought against them for violating the abortion law, and whether that would constitute state enforcement.

Stone said the board could simply make a rule saying that it has no role in enforcement, so even if a report was made, it would be precluded from taking further action, like revoking a doctor’s license.

That argument, and the narrowness of the challenge more generally, presented a problem for lawyers representing the abortion providers, who found themselves in the tricky position of arguing against themselves.

Their current argument is that the state’s enforcement authority, through medical licensing officials, contributes to the chilling effect on abortion providers. If the state Supreme Court decides that medical licensing officials do not have enforcement authority — or the boards add language to their rules confirming that — that chilling effect is lifted.

Justice Evan Young asked Marc Hearron, senior counsel for the Center for Reproductive Rights, whether that would be a win for the abortion providers.

“If you were to do that, that would, at a minimum, provide our clients some certainty,” Hearron said. “It would, however … essentially end our challenge.”

Without state enforcement, there is no one to bring a constitutional challenge against, and the law would remain in effect.

[…]

Abortion providers and advocates are fighting the law on several fronts, including in state court, where a judge in Austin declared the law unconstitutional. He did not enjoin the law from being enforced, though, and that ruling is being appealed.

It is possible that case will eventually return to these same chambers. The justices acknowledged that Thursday’s hearing is unlikely to be the last time they are asked to rule on this unprecedented new law.

Thursday’s case before the Texas Supreme Court is a question of whether the abortion providers can bring a federal “pre-enforcement” challenge.

If that option is foreclosed to them, one option would be to do what a San Antonio doctor did immediately after the law was passed: violate the law, get sued and challenge the statute on its merits in court.

See here, here, here, and here for some background. Perhaps the timing of this hearing on Thursday explains the forced-birthers’ move earlier in the week. I have no idea what SCOTx will do, and there’s no indication from them as to when they’ll do it, but I do know what they should do, and that’s what the federal district court did and would have done again if the Fifth Circuit hadn’t shredded normal practice to put this case before them: Issue a temporary restraining order against any SB8 activity until the matter is resolved in the courts. It’s ridiculous and infuriating how the Fifth Circuit and SCOTUS have played politics with this case. Do what is clearly the right thing under the law, and let the matter proceed from there. I don’t expect them to do this, but they should. The Chron and the Texas Signal have more.

COVID madness

Feb 20th, 2022
by Charles Kuffner.
1 comment

How many ways will unhinged lunatics find to kill us?

A federal appeals court has reversed a ruling, effectively halting United Airlines’ COVID-19 vaccine mandate for employees. The majority on the 5th U.S. Circuit panel ruled in favor of lifting the mandate. The majority explained its ruling was on very narrow ground, but in a seething dissent, one judge said he would rather “hide my head in a bag” than join the unpublished ruling he indicated would not be upheld on the merits.

The case was brought by a group of United employees challenging the airline’s policy that all employees receive the vaccination or remain on unpaid leave. Two workers received religious exemptions from getting the vaccine. The majority on the New Orleans based court held these exempt workers would suffer irreparable harm if the mandate remained in place, because “they are actively being coerced to violate their religious convictions.”

In an unsigned 22-page ruling from U.S. Judges Jennifer Walker Elrod and Andrew S. Oldham, the court reversed the ruling and remanded the case to the trial judge in the Northern District of Texas for re-consideration of the legality of the company’s vaccine mandate. The majority said the trial court must properly analyze the irreparable harm of making an employee choose between “the job or jab.”

The third judge on the panel, Jerry E. Smith, penned a 57-page signed dissent vehemently calling into question the wisdom of his colleagues’ conclusion, however narrow, that the lower court’s reasoning about the mandate was faulty.

Smith said his colleagues’ findings were “head scratching.” And then Smith offered a searing indictment, highlighted in a thread by attorney and prolific appellate law tweeter Raffi Melkonian.

The dissenting judge wrote, “If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action, without a likelihood of success on the merits (for two reasons), and devoid of irreparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equities and the public interest, and despite decades of contrary precedent from this circuit and the Supreme Court, all while inventing and distorting facts to suit my incoherent reasoning,” then “I would hide my head in a bag.” He went on to say, “Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion?”

You really should read that Twitter thread, and also Mark Joseph Stern’s analysis. I know some of y’all are tired of me calling the Fitch Circuit a lawless abomination, but here’s one of its senior jurists, and old school Reagan-appointed capital-C conservative calling it the same thing. Do you believe me now?

Of course, these nutballs need fuel for their fire, and there’s no shortage of that.

Texas Attorney General Ken Paxton and U.S. Rep. Beth Van Duyne, R-Irving, are suing the Biden administration to end mask mandates on planes.

The lawsuit, filed Wednesday, argues that the mandate imposes a “restriction on travelers’ liberty interests” and that the Centers for Disease Control and Prevention does not have the authority to introduce such a blanket preventive measure.

First issued in January 2021, the federal mask mandate requires travelers to wear masks while using public transportation services or facilities, including airports and subway stations. Those who violate the mask mandate could be subject to fines.

Travelers younger than 2 years old or with disabilities who cannot wear a mask are exempt from the requirement. The CDC also amended the order in June 2021 and said the mandate would not apply to outdoor settings.

The federal mandate is set to expire on March 18.

Airline companies — including Texas-based American Airlines and Southwest Airlines — have cited federal law as a reason for requiring face coverings and barring violators from travel.

The suit is the latest in a slew of state efforts to challenge COVID-19 safety measures in court. The state is locked in several legal battles with cities, counties and school districts over masks in public schools. Texas also has sued the Biden administration over federal vaccine mandates for health care workers, federal contractors and large businesses.

I’ll tell you what, when airlines impose a vaccination requirement for flying, which frankly the feds should have done months ago, then I’ll agree that the masks can go. Flying on a commercial aircraft is a privilege, not a right. That privilege can and should be revoked for reckless and dangerous behavior, despite what some Republican Senators would have you believe. Do you think Ted Cruz would actually want to be on the same plane as this guy? So-called “conservatives” have been yelling at us for years about the decline in civil society. Well, they were eventually right about the decline, but completely wrong about the cause. I think we all know the real reasons for it.

Of course the Fifth Circuit put a hold on the SB1 injunction

Feb 19th, 2022
by Charles Kuffner.
Comments are off for this post

There is nothing more reliable in this world than the Fifth Circuit giving Republicans everything they ask for.

The 5th U.S. Circuit Court of Appeals has put a temporary hold on a preliminary injunction that had blocked enforcement of a rule that keeps local election officials from encouraging voters to request mail-in ballots, according to Harris County officials.

U.S. District Judge Xavier Rodriguez last week halted enforcement of a provision of Senate Bill 1 that made it a crime for election officials to solicit mail-in ballots. The judge said the law likely violates the First Amendment.

[…]

Harris County Attorney Christian D. Menefee on Thursday expressed disappointment in the decision by the 5th Circuit, which has blocked a number of court challenges to conservative policies.

“I am disappointed that the Fifth Circuit has undone the preliminary injunction that protected Administrator (Isabel) Longoria’s First Amendment rights,” Menefee said in a written statement. “As the district court already determined, this law is unconstitutional and prevents election officials from encouraging people to vote by mail, including our seniors, our neighbors with disabilities, and our active-duty service members. One thing that’s clear from the high number of mail-in ballot applications being rejected is that our election officials should be empowered to explain the process and encourage folks to apply to vote by mail if eligible. Today’s decision allows the threat of criminal prosecution to loom over election officials trying to help voters.”

See here and here for the background. This court is a sham and a disgrace, and the only way forward is to pack it with judges that will actually apply the law. Don’t ask me when that is likely to happen.

Because I have nothing better to say, here are a couple of tweets from Harris County Attorney Christian Menefee:

Good luck with that. I wish I felt more optimistic, but it’s not like the Fifth Circuit will care.

Injunction granted in lawsuit over criminal penalties for election officials who encourage voting by mail

Feb 13th, 2022
by Charles Kuffner.
1 comment

That’s a somewhat complicated headline for this.

A new Texas law that keeps local election officials from encouraging voters to request mail-in ballots likely violates the First Amendment, a federal judge ruled late Friday.

Following a testy three-hour hearing earlier in the day, Federal District Judge Xavier Rodriguez temporarily blocked the state from enforcing the rule against Harris County’s election administrator until the rest of a lawsuit plays out. Although the scope of Rodriguez’s preliminary injunction is limited, the judge dealt the first legal blow to new elections restrictions and voting changes Republican lawmakers enacted last year.

The injunction applies to Texas Attorney General Ken Paxton and local county prosecutors in Harris, Travis and Williamson counties.

The state is expected to quickly appeal the ruling. The lawsuit was brought by Harris County election administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who is appointed to help register voters in Travis and Williamson counties.

Feb. 18 is the last day for counties to receive applications for mail-in ballots for the March 1 primary.

Rodriguez previewed his order throughout a Friday morning hearing during which he repeatedly pressed the state’s attorneys — with increasing exasperation — to fill in what he cataloged as ambiguities in the new law. The challenged provision makes it a state jail felony for election officials to “solicit the submission” of an application to vote by mail if the voter did not request it.

Rodriguez took particular issue with the lack of a clear definition for what constitutes soliciting when talking to voters, even those 65 and older who automatically qualify to vote by mail under the state’s strict rules.

“It has a chilling effect,” Rodriguez said while questioning a state attorney Friday morning. “They don’t know when they’re going to run afoul of this vague [law].”

His comments followed testimony from Longoria and Morgan, who said they feared the civil and criminal penalties that could come from violating the broad prohibition.

Longoria said her office was now taking a “passive” approach to voter outreach in regard to voting by mail, with staffers “gingerly” weighing their words while answering voters’ questions about their options.

“When it comes to voting by mail, I have to be very careful with my words,” Longoria said from the witness stand. “I stop mid-sentence sometimes at town halls. … I’m tentative to overreach at the moment.”

Morgan testified that she was concerned the law applied even to volunteers like her, given that her role is formally certified by county election offices. She offered examples of voters she no longer felt she could help navigate the vote-by-mail process. That included an 88-year-old voter whom Morgan would typically call at the start of every year to remind her that she has to reapply for mail-in ballots.

State attorneys said that the law did not apply to volunteers like Morgan and argued the government can prohibit interactions between local election officials and voters without running afoul of the First Amendment.

[…]

And even the state’s witness — Keith Ingram, the Texas secretary of state’s director of elections — indicated the threat of prosecution loomed over election officials. While Ingram was on the stand, Rodriguez presented him with hypothetical interactions between Longoria and voters, asking if she could recommend voting by mail to someone who appeared to qualify.

“I would be very careful about that,” Ingram responded. “You wouldn’t want to recommend” voting by mail as an option “because you’d be worried about prosecution,” he said.

Throughout the hearing, Rodriguez also pressed for the reasoning behind the anti-solicitation provision, interrupting the state’s questioning of Ingram in search of an answer. Ingram said he didn’t know the purpose of the provision.

Eventually, Will Thompson of the Texas attorney general’s office told Rodriguez that the provision was meant to limit “official encouragement” of voting by mail, indicating the state preferred people vote in person even if they qualify to vote by mail.

“We’re not taking the position that the Legislature is opposed to voting by mail,” Thompson said. “That doesn’t mean the Legislature wants resources to be used toward nudging people toward voting by mail.”

See here for the background, and here for a copy of the ruling. The Statesman has a couple of key bits from the ruling:

In his order, Rodriguez rejected Paxton’s argument that the solicitation ban targets government speech, which isn’t protected by the First Amendment because the state is allowed to regulate how public employees perform official duties.

But, the judge noted, Longoria and Morgan do not work for the state. Longoria is employed by Harris County, and Morgan is a volunteer registrar.

Rodriguez also rejected Paxton’s claim that granting the injunction would interfere with the orderly operation of Texas elections. The judge said his order does not affect any voting procedures, change the vote-by-mail process or affect voting deadlines or eligibility.

“Nor does it require that election officials start soliciting applications to vote by mail — it simply prevents the imposition of criminal and civil penalties against officials for encouraging people to vote by mail if they are eligible to do so,” Rodriguez wrote.

None of that will stop the Fifth Circuit from doing what the Republicans ask them to do since that’s what they believe their job is, but at least he tried. For anyone who thinks that it’s hysterical to imagine Longoria or Morgan being prosecuted for these actions, Rob Icsezen and Dana DeBeauvoir would like to have a word with you.

Reporter Edward McKinley and plaintiffs’ attorney Sean Morales-Doyle have good Twitter threads with more details, so go check them out. The main argument was that this provision of SB1 criminalizes speech on the basis of its content and the viewpoint expressed, since Longoria could talk all day about not voting by mail but risked arrest if she said the opposite. This is a preliminary injunction, and whether it survives the Fifth Circuit or not there will be a trial on the merits later this year, and you can bank on it going all the way to SCOTUS. The Supreme Court is occasionally solicitous of the First Amendment, if it approves of the speech in question, so who knows what they might do. In the meantime, we have a small victory, for now, against SB1. There will be a lot more litigation over the rest of that law to come. The Chron has more.

Anti-Israel boycott law knocked down again

Feb 5th, 2022
by Charles Kuffner.
1 comment

Turns out this is a First Amendment violation. Who knew? (Spoiler alert: Pretty much everyone else in the world.)

Texas can’t forbid an engineering firm from boycotting Israel as part of its contract with Houston City Hall, a federal judge has ruled.

U.S. District Judge Andrew S. Hanen on Friday stopped short of fully blocking a state law that prohibits government agencies from doing business with certain companies that boycott Israel. But his ruling said the free speech rights of A & R Engineering and Testing Inc. would be violated if its contract with the city included a clause saying the company will refrain from such a boycott. Hanen also said that Texas could not enforce its law against the company or the city.

A & R Engineering and Testing Inc. is being represented by the Council on American-Islamic Relations, a Muslim civil rights and advocacy organization. In a news conference Monday, the organization lauded Hanen’s decision but still pushed for the state’s anti-boycott law to be overturned.

“He acknowledged that that pro-Palestinian view is protected by the First Amendment,” said CAIR attorney Gadeir Abbas. “That may sound like little crumbs, but that’s a controversial take, and it’s a blessing.”

[…]

According to the lawsuit, in October, A & R was entering into a renewal contract with Houston when it was required to certify that it wouldn’t boycott Israel during the length of the contract. The company asked the city to take the stipulation out of the contract, but the city refused, citing state law.

In court documents, the city of Houston had said it would follow the state law, but that it took no position on its constitutionality.

Texas passed an anti-BDS law in 2017. In 2019, it was rewritten to exclude individual contractors and only pertain to businesses with 10 or more full-time employees and when the contract is for $100,000 or more.

Before the law was rewritten, a federal court temporarily blocked the original law statewide in a lawsuit involving a speech pathologist who worked in the Pflugerville Independent School District. In that case, the U.S. District Judge Robert Pitman ruled that the statute suppressed “unpopular ideas” and manipulated “the public debate through coercion rather than persuasion.”

See here and here for some background. Texas has of course appealed this to the Fifth Circuit, and who knows what those meshugganehs will do. This is an article of Republican faith now, so if we’re still an all-GOP state in 2023, you can be sure they’ll try again. The Chron has more.

SB8 litigation will stay with SCOTx

Jan 22nd, 2022
by Charles Kuffner.
1 comment

Another game of Calvinball, same result.

The U.S. Supreme Court denied on Thursday abortion providers’ latest request to intervene in the ongoing legal challenge against Texas’ restrictive abortion law, cutting off one of their few remaining paths to a speedy victory.

The case is currently before the 5th U.S. Circuit Court of Appeals, which sent the case to the Texas Supreme Court. That is expected to add months to the legal proceedings.

Abortion providers were hoping the U.S. Supreme Court would direct the 5th Circuit to send the case to federal district court, where a judge previously blocked the law.

[…]

“It breaks my heart every time our clinic staff are forced to deny pregnant people care and turn them away,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four Texas abortion clinics. “This law is cruel and unconstitutional, and I am deeply disappointed that our judicial system has done very little to stop it.”

The fix is in. The law means nothing. It’s about to get worse. Have a nice day.

SB8 lawsuit moves to SCOTx

Jan 19th, 2022
by Charles Kuffner.
2 comments

Like I said, the fix was always in.

The 5th U.S. Circuit Court of Appeals on Monday sent the legal challenge to Texas’ restrictive abortion law to the state’s Supreme Court, a move that is expected to significantly delay the case and that abortion opponents had hoped would occur.

“This decision now keeps the case in limbo — and abortion after 6 weeks in the nation’s second-largest state — a dead-letter, indefinitely,” wrote Steve Vladeck, a University of Texas School of Law professor, on Twitter.

The U.S. Supreme Court has largely declined to intervene in the Texas case three times, most recently in December when justices kept the ban in effect while allowing a legal challenge to move through a lower state court.

[…]

A divided Supreme Court found that most challenges against the Texas law should be dismissed, except for one filed against medical licensing officials. That case was sent that to the 5th Circuit, one of the most conservative appellate courts in the country, rather than a federal district court as abortion providers and supporters had hoped.

The three-judge federal panel, based in New Orleans, wrote in their 2-1 decision Monday that the Texas Supreme Court must certify the case and decide whether the U.S. Supreme Court was correct in allowing a challenge to proceed against the licensing officials. Circuit Judges Edith H. Jones and Stuart Kyle Duncan, both appointed by Republicans, said the state’s highest court should determine whether the Texas attorney general, the Texas Medical Board and other licensing officials can enforce the law if it is violated.

Judge Stephen A. Higginson, a Democratic appointee, argued the U.S. Supreme Court had already decided that matter.

“This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” he wrote in his dissent.

State supreme courts do not have to take up cases that are sent to them by federal courts, but it’s likely Texas will this time. Lawyers said it’s unusual to ask the Texas Supreme Court to make this decision after the U.S. Supreme Court has already weighed in.

See here, here, and here for the background. I still don’t have anything to say that I haven’t said before. I’m fresh out of invective. The following is part of a longer thread, but these two tweets sum it up nicely:

SCOTUS doesn’t even care about the insult to their authority, because in the end it serves their larger goal. Burn it all down. The Chron has more.

Fifth Circuit gets set to put the final nail in SB8 legal challenges

Jan 8th, 2022
by Charles Kuffner.
Comments are off for this post

The fix was always in.

In a contentious hearing Friday, a federal appeals court indicated it is likely to send Texas’ restrictive abortion law to the state supreme court, a move that could add months or longer before the case is resolved.

Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas through a novel law that empowers private citizens to sue anyone who “aids or abets” in a prohibited procedure. The law explicitly removes enforcement authority from state officials, making it extremely difficult to challenge in court.

In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law.

On Friday, a three-judge panel from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case goes next. Judges Edith H. Jones and Stuart Kyle Duncan indicated they believe there are state law questions that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson strongly disagreed, arguing the case should be remanded to federal district court.

In a move that surprised court watchers, Jones also raised the idea of taking no action on the case for months, until the U.S. Supreme Court has ruled on a Mississippi abortion case that could overturn the constitutional protection for the procedure.

Lawyers for the abortion providers believe the federal district court route is the best hope to getting the law, originally passed as Senate Bill 8, struck down. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect.

This is exactly what abortion opponents are hoping for.

See here and here for the background. There’s nothing I can say that I haven’t already said. The only way forward is winning more elections, both to change the laws in Texas and to get some court reform at the federal level. I wish I had something more hopeful, but this is all I’ve got. The 19th and the Chron have more.

SB8 plaintiffs want their lawsuit moved back to district court

Jan 5th, 2022
by Charles Kuffner.
1 comment

As is usually the case, the lawless Fifth Circuit is the problem, with a generous assist from SCOTUS.

With the 5th U.S. Circuit Court of Appeals set to hear arguments about Texas’ restrictive new abortion law Friday, abortion providers have asked the U.S. Supreme Court to again intervene and instead send the case to a lower court.

Abortion providers filed the request Monday, along with a motion to expedite the high court’s ruling on the matter ahead of Friday’s hearing. Lawyers for the providers argue that the 5th Circuit should send the case to district court, which in October temporarily blocked enforcement of the law.

[…]

In December, the Supreme Court threw out most of the providers’ challenges to the law and allowed only one narrow challenge, against medical licensing officials, to proceed. The court also allowed the restrictions on the procedure to remain in place.

Then, in an additional blow to abortion providers, the Supreme Court sent that one remaining challenge to be reargued before the 5th Circuit, considered one of the most politically conservative circuit courts in the nation. Providers had been expecting it to be sent to the district court, which was seen as a more favorable venue. They argued in Monday’s filing that district court is the proper venue for the case to proceed.

“It’s unconscionable that the Fifth Circuit Court of Appeals is defying the Supreme Court’s ruling last month by refusing to send our case back to the district court so that we can continue fighting Texas’ six-week abortion ban,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “The Supreme Court must step in to prevent the appeals court from needlessly delaying our lawsuit against Texas’ bounty-hunting scheme and compounding the harm this ban has already inflicted on Texans.”

Rather than remanding the case to the district court, though, the 5th Circuit decided in a split decision to hear arguments in the case on Friday and will consider whether the case should be sent to the Texas Supreme Court to proceed. Legal experts say certifying a case to the state supreme court can extend the appeals process by months, if not years.

Circuit Judge Stephen A. Higginson dissented from the majority, arguing that the Supreme Court’s ruling does not require reargument before the 5th Circuit and should not be sent to the Texas Supreme Court. Higginson also wrote that he believes the Supreme Court ruling indicates that the medical licensing officials should be blocked from enforcing the law.

But Higginson noted that he had been “unpersuasive,” and unless the Supreme Court weighs in before Friday, the case is likely to proceed at the 5th Circuit. Abortion providers argue that this delay is harming women seeking abortions.

See here for the background. The plaintiffs had also asked the Fifth Circuit to just send this back to the district court, but they declined and instead scheduled this hearing, which is not a thing that appellate courts normally do. It’s clear that the purpose of this is to just flat-out delay if not deny sending the case back to the district court judge, who will surely enjoin it for the duration of the lawsuit, and wait for SCOTUS to officially throw out Roe v Wade in the Mississippi case. The Fifth Circuit is rogue and lawless and needs to be gutted. Simply calling it some variation of “very conservative” does not accurately describe it. The news media needs to wake up and get with the program. The 19th has more.

SCOTUS finds another way to screw abortion rights

Dec 20th, 2021
by Charles Kuffner.
1 comment

Surely you’re not surprised.

The Supreme Court has formally returned a lawsuit over Texas’ six-week abortion ban to a federal appeals court that has twice allowed the law to stay in effect, rather than to a district judge who sought to block it.

Justice Neil Gorsuch on Thursday signed the court’s order that granted the request of abortion clinics for the court to act speedily. But the clinics wanted the case sent directly to U.S. Judge Robert Pitman, who had previously though briefly blocked enforcement of the Texas abortion ban known as S.B. 8.

When Pitman ordered the law blocked in early October, the appeals court countermanded his order two days later.

Texas has said it will seek to keep the case bottled up at the appeals court for the foreseeable future.

Marc Hearron, the Center for Reproductive Rights lawyer who represented the clinics at the high court, said, “The Supreme Court left only a small sliver of our case intact, and it’s clear that this part of the case will not block vigilante lawsuits from being filed. It’s also clear that Texas is determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.”

[…]

In last week’s majority opinion written by Gorsuch, the Supreme Court limited who can be sued by the clinics in their effort to win a court order preventing the law’s enforcement and allowing them to resume providing abortions without severe financial risks.

The court held that only state licensing officials can be sued, an outcome the clinics said would not stave off the filing of lawsuits against providers if abortions were to resume.

Gorsuch wrote that “it appears” the licensing officials can be sued. “Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions,” he wrote.

The state told the justices it plans to ask the appeals court to, in turn, seek a definitive ruling from the Texas Supreme Court over the role the licensing officials play in enforcing the abortion ban.

The appeals court would decide whether to involve the state high court, which would put the case on hold.

See here for the background. I’m going to outsource the commentary, as it’s hard for me to form the right words here.

I suppose it’s possible that the Fifth Circuit will do the right thing and hand this back to the district court so the process can play out. And I suppose that if they try to hand it to SCOTx that they will refuse to take it, on the grounds that they don’t like having to deal with messy political questions. Or either the Fifth Circuit and/or SCOTx just sits on the ball until SCOTUS officially drives a spike through Roe v Wade and moots the whole thing. I’m going to go scream into a pillow now. The Trib has more.

Biden employer vaccine mandate back on

Dec 19th, 2021
by Charles Kuffner.
Comments are off for this post

For now, at least.

A federal appeals court panel on Friday allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move ahead, reversing a previous decision on a requirement that could affect some 84 million U.S workers.

The 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overrules a decision by a federal judge in a separate court that had paused the mandate nationwide.

The mandate from the U.S. Occupational Safety and Health Administration was to take effect Jan. 4. With Friday’s ruling, it’s not clear when the requirement might be put in place, but the White House said in a statement that it will protect workers: “Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

[…]

“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons, who was nominated to the court by former President George W. Bush, a Republican, wrote in her majority opinion.

“Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace,” she wrote.

Gibbons noted that the agency’s authority extends beyond just regulating “hard hats and safety goggles.” She said the vaccine requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

She was joined in the majority decision by Judge Jane Branstetter Stranch, an appointee of former President Barrack Obama, a Democrat.

The case was consolidated in the 6th circuit, which is dominated by Republican-appointed judges. Earlier this week, the circuit’s active judges rejected a move to have the entire panel consider the case, on an 8-8 vote.

The dissent in Friday’s ruling came from Judge Joan Larsen, an appointee of former President Donald Trump, who said Congress did not authorize OSHA to make this sort of rule and that it did not qualify as a necessity to use the emergency procedures the agency followed to put it in place.

Larsen also argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”

Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. At least two conservative advocacy groups said they had already appealed to the nation’s highest court.

“The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” Rutledge said.

See here, here, and here for the background. Who even knew that it was possible to get a decent result from an appeals court? It appears the Sixth Circuit, or at least the two justices in the majority opinion, were perhaps not all that impressed by the ruling handed down by their Fifth Circuit colleagues.

Spicy. As noted, in the story, the death eaters among the Attorneys General, including our own, will be appealing to SCOTUS, so keep a firm grip on your expectations. For now at least, there’s a bit of sanity. Happy holidays and all that. Slate has more.

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