glad to see this analysis! even though the CA mask ban was enjoined, the basis for doing so was because of a last-min carveout exempting state officers. the decision on relevant question —whether enforcing mask bans against fed officers violates the supremacy clause —was a win.
🧵👇👇
This point was missed in a lot of the news coverage of the decision.
If Washington's mask ban is signed into law, the U.S. is almost certain to sue the state and in response the state is almost certain to cite heavily to the California decision. Will be interesting to see how another court approaches this issue and how it all plays out. 6/6
Of course, many disagree with the decision and it is not binding on any other court, so there's no guarantee that other courts will adopt a similar analysis. But it is currently the only on-point decision on whether mask bans directly regulate the federal government, which counts for something. 5/
The California decision may operate as a green light for other states considering mask bans. So long as the ban applies evenly, and contains certain exceptions etc., the odds of a court upholding it seem higher than they were before (even though our sample size so far is only one) 4/
But the takeaway is that, despite many academic commentators saying that mask bans are destined to lose, the federal district court found that they are actually constitutional so long as they apply to all levels of government and do not discriminate against the federal government. 3/
To start, I've written about this more in depth in an explainer for @uwlawdemocracy.bsky.social, which was updated today to discuss the California decision. So if you want a deep dive, check it out. 2/ statedemocracy.law.wisc.edu/our-work/can...
A federal court has prohibited California from enforcing its mask ban against federal officers. A loss for California. But the opinion is actually a win for states across the country seeking to ban masking—like Washington, which recently passed a ban through both chambers of the legislature. 🧵 1/
LAW STUDENTS & RECENT GRADS: Interested in a state supreme court clerkship? Join us on March 19 at 3pm ET for a virtual event where you can hear from justices across the country about the application process and what it's like to clerk. Register below! www.brennancenter.org/events/what-...
The abstract of the article, setting out the general findings.
The strongest arguments against qualified immunity reform are that lawsuit costs would skyrocket and officer retention would plummet. Alex Reinert, Jim Pfander, and I studied qualified immunity reforms in Colorado and New Mexico and can report: the sky is not falling. papers.ssrn.com/sol3/papers....
State constitutions shape young people’s lives — from voting to LGBTQ+ policy to climate action to our schools. Yet fewer than half of Americans know their state has one. Join State Court Report at @sxswedu.com for a panel on how constitutions can empower and protect young people.
![S OTOMAYOR , J., dissenting
II
Today, the Court takes the astonishing, unexplained step
of staying a state trial court’s order before the state high
court has had a chance to weigh in. To do so, the majority
had to conclude that it has jurisdiction to act, that acting
now is consistent with the bedrock federalism values under-
lying its jurisdictional limits, and that the equities favor
granting this relief despite the Court’s repeated admoni-
tions to proceed cautiously when intervening in state elec-
tions or court proceedings. The Court goes badly wrong at
every turn.
OTOMAYOR , J., dissenting
Appeals. Supp. App. 102–103. Besides, even if the Appel-
late Division denied defendants leave to appeal the denial
of stay, defendants still may seek that same relief from the
Court of Appeals directly. N. Y. C. P. L. R. §5519(c);
§5602(a)(2) (permitting a litigant to seek leave to appeal
from the Court of Appeals “upon refusal by the appellate
division” as to “an order of the appellate division which does
not finally determine [the] proceeding”).
Until defendants try to obtain relief from New York’s
highest court, this Court cannot and should not act. That
defendants have not taken that modest step should have
resulted in the denial of the stay they seek.3](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:x7ajfd6mhrii5axlx254vmol/bafkreigqmue5sfmc5uxissf57fsdg6szxdixpat3qipyovztdngtevggmm)
S OTOMAYOR , J., dissenting II Today, the Court takes the astonishing, unexplained step of staying a state trial court’s order before the state high court has had a chance to weigh in. To do so, the majority had to conclude that it has jurisdiction to act, that acting now is consistent with the bedrock federalism values under- lying its jurisdictional limits, and that the equities favor granting this relief despite the Court’s repeated admoni- tions to proceed cautiously when intervening in state elec- tions or court proceedings. The Court goes badly wrong at every turn. OTOMAYOR , J., dissenting Appeals. Supp. App. 102–103. Besides, even if the Appel- late Division denied defendants leave to appeal the denial of stay, defendants still may seek that same relief from the Court of Appeals directly. N. Y. C. P. L. R. §5519(c); §5602(a)(2) (permitting a litigant to seek leave to appeal from the Court of Appeals “upon refusal by the appellate division” as to “an order of the appellate division which does not finally determine [the] proceeding”). Until defendants try to obtain relief from New York’s highest court, this Court cannot and should not act. That defendants have not taken that modest step should have resulted in the denial of the stay they seek.3
To me, the NY redistricting case feels like a constitutional crisis in miniature. The Supreme Court is issuing orders it "cannot" issue, Sotomayor explains in her dissent. Yet it did so anyway.
So how should the NY courts react to an order that should never have issued?
I agree, quite apart from the merits of the case. Alito could only defend the Supreme Court's authority to intervene by grievously misrepresenting the facts. The reality is that there's no plausible argument SCOTUS had the power to do what it did. Why didn't that matter to six justices?
I've met parents selling plasma or going without electricity just to keep a roof over their children's heads.
From California to Ohio, school districts have opened "safe parking lots" for homeless students and their families.
The line between "housed" and "unhoused" has become shockingly porous.
Today, it’s almost impossible to sue federal officers for money damages if they violate your constitutional rights. As @harrisonstark.bsky.social explains in this Lawfare piece, state law could offer a solution through so-called “converse 1983” legislation.
www.lawfaremedia.org/article/can-...
Breaking WaPo:
Pro-Trump activists who say they are in coordination with the White House are circulating a 17-page draft executive order that claims China interfered in the 2020 election as a basis to declare a national emergency that would unlock extraordinary presidential power over voting.
An excellent question that I looked up the answer to, bc I was curious as well!
there were only 154 prosecutions of voter fraud in Texas between 2004 and 2021, out of 94 million votes cast—several thousandths of one percent 🙃
ballsandstrikes.org/law-politics...
Federalism can't work under these conditions.
State court should be safe for all. And many people — from defendants to victims to other witnesses — need to be able to go to state court without fear that doing so will result in their apprehension by ICE. www.startribune.com/white-house-...
“The climate scientists we surveyed were unambiguous: current economic models can’t capture what matters most – the cascading failures and compounding shocks that define climate risk in a warmer world – and could undermine the very foundations of economic growth.”
Should be the top story everyday.
New York: it is colder today than in parts of Antarctica.
Stay inside, stay warm, stay safe. If you see a neighbor in need, call 311.
image of a report cover, with a US flag in the background, and the text "The Political Disconnect: Working-Class and Low-Income People on What Politics Means to Them and How They Might be Mobilized”
Today I'm releasing probably the most important scholarly thing I've ever worked on - a report based on talking with 144 people about why they don't vote or only vote regularly, and on what needs to be done to build a democracy that can include everyone.
www.swarthmore.edu/u...
please share!
On a night of life-threatening cold, a homeless person entered a Lansing bus station seeking refuge from the freezing temperatures.
Video shows police slamming them to the ground and pinning them with knees on their neck as they plead, "I'm here because it's cold outside, and I have nowhere to go."
Finishing up by linking again to my longer piece on this, which is what I wrote in the thread but with citations and examples and more explanations! Grateful my job let's me research and write about this for work :)
statedemocracy.law.wisc.edu/featured/202...
To be clear, I don't think there's an obvious "right" legal answer here. The case law is murky, there's not a ton of recent binding precedent, and our current legal / political landscape is unpredictable in many ways. But I see people saying mask bans are DOA, and I just don't think that's true.
To wrap up, the main question is do these laws truly interfere with the government's operations, or is it an incidental burden. I think there's a colorable argument for the latter! Many ICE agents don't mask, masking isn't required, ICE agents have done their jobs in the past without masking.
We are still waiting for the decision on the PI in the California case, but I wouldn't be surprised if California loses on the discrimination prong. That said, I haven't yet dug deep into their arguments in response, so I could be wrong! We will see!
I know this is long so if you're still with me, thank you.
The second part of Intergovernmental Immunity is discrimination. Most laws I've seen apply to law enforcement at all levels, which avoids direct discrimination. Notably, California's doesn't, and the fed gov has used that in its arguments.
In that case, the court said Texas could pursue conversion and trespass claims against federal Border Patrol agents who cut a wire fence as part of their patrol. Yes these laws impact & burden how federal agents carry out their duties, but that wasn't enough! I could see a similar arg for masking.
In 2024, the Fifth Circuit said the "key question" "is whether state law seeks to improperly 'control' the employee's federal duties, or whether the law only 'might affect incidentally the mode of carrying out the employment.'"
