Supreme Court Rules That Challenge to New York City Gun Restriction is Moot

Amy Howe at SCOTUSblog writes:

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case is New York State Rifle & Pistol Assn., Inc. v. City of New York.  I wrote about this case back in January 2019 when the Court granted cert, noting that this was the first major Second Amendment case that the Court had agreed to hear in over a decade. Details on the ordinance at issue and the petitioners' challenge can be found there.

As I noted then, the Court was likely to overturn New York City's restriction in light of Kavanaugh's appointment. But after the Court agreed to review the law, New York City amended its rule so that people could transport firearms to second homes or to shooting ranges outside of the city. In its opinion today, the Court notes that this was the relief that the petitioners had sought.

While the Court's mootness determination avoids engagement with the substance of the Second Amendment challenge, several Justices either disagreed with the decision, or explicitly stated that the Court should take up a Second Amendment case.

Justices Alito, joined by Gorsuch and (for the most part) by Thomas, dissented. The dissent concluded that the case was not moot, and determined that New York City's ordinance violated the Second Amendment.  To quickly summarize the Second Amendment analysis: the dissent found that the New York City ordinance infringed on the right to keep a handgun in the home for self-defense because it restricted people from taking guns out of the home for certain purposes necessary to exercise that right, such as repairing the gun or taking the gun to a range for practice. The dissent found that the ordinance's restriction on taking firearms outside of the city to practice at ranges was impermissible, since gun ranges may not have the same models of firearms available, and because the City could not identify restrictions on taking firearms outside of municipal limits during the founding era. The dissent also took issue with the City's claims that the restriction served a purpose of promoting public safety.

This case originally looked like it would be the next major Supreme Court case to interpret the Second Amendment. With its mootness determination, the Court sidestepped this outcome. But the layout of the opinions gives a preview of the Court's next steps on the Second Amendment. Kavanaugh's concurrence all but confirms that he will join Alito, Gorsuch, and Thomas in voting to grant certiorari to a Second Amendment challenge in the near future, and once that happens this process will begin again.

[Updated 4/28/2020]

Why Are There No Federal Writs of Erasure?

Eric Pearson, in Foley & Lardner's Wisconsin Appellate Law blog, discusses this recent exchange that took place between Judge Frank Easterbrook and counsel for the appellant during oral argument in O'Keefe v. Chisholm (Bloomberg News has background on the case here):

Counsel: I would request the Court please vacate, in its entirety, the district court’s basis for the ruling. However this Court gets to that issue, if it perceives it needs to. This district court ruling has left a considerable stain, and we do not wish to have that… 

Easterbrook, J.: What are you asking for concretely? 

Easterbrook, J: Do you want us to issue a writ of erasure? 

Counsel: Well… 

Easterbrook, J.: Tell the district court it has to say something else? 

Easterbrook, J.: When we review a case on appeal, we will issue our own opinion. But we don’t go about erasing district court opinions. That seems to be what you want us to do. 

Counsel: Well…what I was thinking, Your Honor, was the vacation of that opinion. 

Easterbrook, J.: We do not vacate opinions. We review judgments.

Asking for a vacation of a "basis for the ruling" in front of a panel containing Judge Easterbrook is a bad idea in light of prior decisions that Judge Easterbrook has authored. Judge Easterbrook has repeatedly refused requests to vacate opinions of district courts, labeling these requests as actions for "writs of erasure."

But why are there no writs of erasure? The language of the All Writs Act (28 U.S.C § 1651) suggests that federal courts have broad powers to issue a variety of writs:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

In light of this broad language, I would expect Judge Easterbrook to give some reason for why writs of erasure are not permitted. But many of his recent opinions on the subject simply contain a conclusory statement that the Seventh Circuit does not issue writs of erasure. See, e.g., Tara Gold Resources Corp. v. S.E.C., 678 F.3d 557, 560 (7th Cir., 2012) (noting, in the context of a request to vacate a letter sent to a business by the Securities and Exchange Commission that "[t]he judicial arsenal does not include a writ of erasure that blots documents from existence."), United States v. Zingsheim, 384 F.3d 867, 870 (7th Cir. 2004) ("A Writ of Erasure is not among those remedies that are “agreeable to the usages and principles of law” and authorized by 28 U.S.C. § 1651(a), the All-Writs Act.").

After some searching, I found some other opinions by Judge Easterbrook that shed light on why he rejects writs of erasure. But after I reviewed those opinions, I was still left wondering whether his blanket rejection of these writs is truly justified. In the remainder of this post, I explore the reasons for rejecting writs of erasure and close with some brief remarks on why these reasons may not sufficiently a blanket rule against such writs.

Wall Street Journal Law Blog Issue-Spots Potential Federal Courts Exam Question

When I was in law school, one of my hobbies was attempting to predict the content of law school exams. I've been fairly successful in predicting exam questions, and I go into more detail here on how students may go about predicting the content of exams.

Here, I would like to offer a specific prediction about next year's exams: I think that there is a good chance that federal courts classes offered during the upcoming fall semester may include House Speaker John Boehner's plan to sue President Obama as a fact pattern. Boehner has stated that President Obama's use of executive orders is unconstitutional and plans to sue, claiming that the President has "not faithfully executed the law."

Going into the potential causes of action Boehner may claim and addressing the merits of the lawsuit is something I don't have the time to do in this post. But I would direct those interested in learning more to the Wall Street Journal Law Blog's informative post on the lawsuit, which concisely outlines many of the potential avenues the lawsuit may take and the obstacles it may face.

Students in particular may want to look over the Journal's post, since its coverage of the various facets of the case provides a good outline for a possible issue-spotting answer to an exam question that asks students to discuss the merits of the lawsuit.

I think that this issue is likely to come up on fall federal courts exams because it is a rare example of media coverage of a lawsuit that primarily revolves around federal courts questions. While issues of standing and political questions are often too technical for mainstream media coverage, this case is being aggressively publicized (probably for political purposes), and the high profile nature of the parties involved has gotten the attention of many national news outlets. There is a possibility that this issue could be tested in the spring, but that may depend on whether this lawsuit continues to attract coverage.

Of course, if this issue continues to draw media attention, it might become so well-known that it would not be a practical item to include on the exam. If most students have heard about the lawsuit and read ongoing, in-depth media coverage, this could end up leading to uniformly thorough answers. As a caveat to this caveat: some media outlets may cover this issue more than others, and continuing coverage by select networks (especially those that are not frequented by most law students or professors) shouldn't count too much against the probability of this issue being tested.

While predicting exams is no science, a newsworthy lawsuit in an under-publicized area of law coupled by a nifty blog post that issue-spots the lawsuit is probably worth a moment of a student's attention.

Federal Courts Can Be a Tough Subject

Howard Wasserman at PrawfsBlawg has this post about the argument in Susan B. Anthony List v. Driehaus. Wasserman quotes this selection of the argument:

JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness. 

MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.

Wasserman explains why Mr. Carvin was having a difficult time with the question:

It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.

I took Federal Courts this semester and I will soon need to work through the standing/mootness distinction as I put my outline together. I considered including this selection from the Susan B. Anthony List argument as a fallback position to take if I am confronted with a set of facts that blurs the line between standing and ripeness. But I am not sure that Professor Varat will be as sympathetic to that approach on an exam as Professor Wasserman is to this approach in oral argument.

The ENFORCE the Law Act

That's the name of a bill proposed by Trey Gowdy (R - SC). The bill would give Congress and/or the Senate the ability to sue the President when the House or Senate passes a resolution determining that the President or an administrative agency has "established or implemented a formal or informal policy, practice, or procedure to refrain from enforcing, applying, following, or administering any provision of a Federal statute, rule, regulation, program, policy, or other law in violation of the requirement that the President take care that the laws be faithfully executed under Article II, section 3, clause 5, of the Constitution of the United States."

At PrawfsBlawg, Howard Wasserman takes note of this bill and concludes that while Congress may be able to give itself standing to sue, it would still seem that these questions would be non-justiciable political questions. From what little I know about the political question doctrine, I am inclined to agree.

Also, I have observed politicians like Gowdy making accusations that President Obama is abusing his power by adopting policies of nonenforcement for some time now, but this is the first legislative action on the subject that I have seen. Some may argue that this move was precipitated by Obama's statement that he would "use his pen and his phone" to act where he could, even if Congress refused to legislate. But an alternate theory is that the body of the bill has been around for a very long time, and the bill's proponents only recently settled on the title, "the Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014" (which can be abbreviated to "ENFORCE").

We may never know for sure what theory of this bill's development is correct. But it is pretty safe to say that any interesting justiciability questions this bill raises will never be heard in the courts since the bill will almost certainly die in the Senate.

The Standing Implications of the NSA's Decrease in Metadata Collection

At Lawfare, Chris Donesa posts about a recent leak that indicates the NSA is only collecting 20 percent or 20-30 percent of U.S. telephonic metadata under the Section 215 program. For background on that program -- which involves the collection of phone numbers dialed and the duration of these calls -- see here. The stories reporting the leak appear here and here (behind a paywall).

Donesa criticizes the NSA's apparent decision to reduce the amount of information it collects:

If accurate, this startling disclosure should be troubling to all sides of the debate over metadata collection. Advocates should be concerned that the collection is now so limited as to jeopardize the program’s utility in locating potential terrorist links to the United States, and that the Department of Justice, DNI, and NSA have allowed the state of affairs to decline so perilously. Critics now have substantial reason to question and even litigate the rationale for continuing the program, and industry should have heightened concern about the potential for expanded compelled collection by the government.

. . .

[I]f calming critics is the goal, the leak fails miserably. Disclosing that the scope is now so narrow fundamentally undermines the justification of collecting “all the dots.” In the oversimplified realm of the public debate, that becomes an easy and damning talking point to question whether the program even serves its purpose going forward. The disclosure will also inevitably fuel even more litigation, including questions about whether this fact should have been affirmatively made known to judges and others.

The release of this information may be more beneficial to the administration than Donesa argues. On its face, the leak gives the administration the ability to claim that it is not pervasively monitoring all phone records, which may make the program more politically acceptable.

But an even more significant consequence of the leak is the impact that this information may have on future plaintiffs' standing to sue the government over this program. The revelation that only 20-30 percent of telephonic metadata is collected gives the government a strong argument that plaintiffs lack standing to sue for rights violations that arise from this program.

In Clapper v. Amnesty International, 133 S. Ct. 1138 (2013), the Supreme Court rejected a challenge to section 1881a of the Foreign Intelligence Surveillance Act which authorized the surveillance of communications of people outside of the United States. The plaintiffs in that lawsuit were people whose work required them to communicate with people outside the United States who were likely to be monitored under this act. The Court held that the plaintiffs did not have standing to challenge the surveillance program because they could not conclude that any injury resulting from surveillance was "certainly impending," since the plaintiffs could not make enough of a showing that they would be monitored, or that any monitoring would occur under 1881a.

Moving ahead to a more recent case, in Klayman v. Obama, the District Court for the District of Columbia held that a plaintiff's claim that Section 215's authorization of bulk metadata collection likely violated the Fourth Amendment. While I analyze the Fourth Amendment holding of that case in more detail here, the court distinguished Klayman from Clapper by noting that Snowden's leaks indicated that all telephonic metadata for Verizon was being collected by the NSA. In light of this post-Clapper information about the supposedly all-encompassing surveillance program, the court held that the plaintiff's had made enough of a showing that their rights had been violated and would continue to be violated.

The NSA's recent leak may undermine the Klayman court's standing conclusion, since the NSA's collection of metadata may not be as all-encompassing as previously thought. And this may spell trouble for plaintiffs seeking to enjoin the enforcement of Section 215. Where these plaintiffs may previously have had a strong argument that their information would almost certainly collected, it now seems that the probability of this collection is in the 20-30 percent range. And this might not be enough to prove that the plaintiffs face "certainly impending" harm from the program. As a result, plaintiffs suing to enjoin enforcement of Section 215 may run into the same lack-of-standing barrier as the plaintiffs in Clapper.

While the NSA's recent leak may undermine the administration's justifications of its bulk metadata collection program to some extent, the other political and legal impacts of this leak may outweigh this negative consequence. It will be interesting to see if this revelation has any influence on courts' jurisdictional decisions in future cases.