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Josh Blackman’s Blog

Law prof Josh Blackman caused a stir on April Fool’s Day this year when he announced on his blog that he and his colleagues had created a computer algorithm that could predict U.S. Supreme Court outcomes. The next day, the co-founder of FantasySCOTUS swore it wasn’t a joke. In July, he announced that the computer model actually existed and had proved to have about a 70 percent accuracy rate based on past cases. We can’t wait to see the results in upcoming Supreme Court terms as he pits his algorithm against the dedicated players of FantasySCOTUS.

On a dreary day, enjoy this laugh, courtesy of Kathleen Sebelius:

“I think Jonathan Gruber’s comments are just offensive and flat-out wrong. There couldn’t have been more open discussions,” Sebelius said in a rare appearance on CNN’s “New Day.” …

She dismissed Republican criticism that the numbers had been intentionally inflated, saying it was “absolutely a mistake.”

“Transparency has been a huge part of this program,” she said. “There was a lot of speculation that would wouldn’t get anywhere near 7 million, so I think that’s good news.”

 

 

In my previous post, I questioned whether there can in fact be “prosecutorial discretion” when a rubber stamp is used. Specifically, if a process is set up whereby everyone meets certain clerical requirements–whether paperwork is correctly filed–can the process really be subject to any discretion? This is ministerial, not prosecutorial. As an example, I cited a Brookings study that showed that only 1% of DACA applicants were denied.

Some more research suggests that the stamps were more rubbery than I thought. Judicial Watch obtained through FOIA requests a number of documents concerning how DHS made the process of granting DACA deferrals even easier.

Some of the findings include:

• Field offices were asked to conduct only “lean and lite” background checks rather than full TECS background checks.
• Applicants without ID were still to be processed for biometric processing.
• There were widespread waivers of the fees.

And it goes on and on. The general gist is the procedures were set up to grant as many of the applications as possible. Despite the insistence on prosecutorial discretion, the process seemed stacked to defer everyone who meets the bare clerical requirements, and even then defer those that do not.

To make something clear, when discussing the deferral of millions, using discretion to go *above and beyond* the criteria to defer more does not count as the type of discretion we are talking about. That poses an even greater “special risk” when the minimum criteria set up are not complied with. The valid discretion at issue here, would be to *not* defer people for reasons or factors particular to the case. It seems the Administration’s policy was to eliminate as much discretion to deny, and maximize the discretion to grant.

The memo concerning the 2014 IAEA uses similarly capacious language as the 2010 memo. There’s no reason to think there will be any additional room for agents to deny applications. The presumption will be, grant everything that can conceivably be granted. Plus, the same overworked offices trying to handle 1 million applicants will now be swamped with 4 million. This process may be automatic.

Even if the OLC’s memo is correct that a broad policy of deferral is permissible so long as cases are adjudicated on a case-by-case basis, on the ground,  the facts are very different.

The lecture notes are here and the livechat is here.

First, start with the text of the 5th Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation.”

Here are a number of photographs of Susette Kelo and her home, courtesy of the Institute for Justice (the public interest law firm that litigated Kelo to the Supreme Court).

After the case, Kelo disassembled the house, and moved it across town. It was moved from 8 East Street (by the water) to 36 Franklin Street.

View Larger Map

Note that the entire lot is vacant, except for the stray building–The Italian Dramatic Club.

Here is a satellite photo from 2007 showing several other properties remaining on the lot. Today only the Italian Dramatic Club survives.

It now stands as a monument to eminent domain for private development.

In 2009, Pfizer pulled out of the New London project. The site of Kelo’s home remains vacant. There have been reports that feral cats now reside on the land.

Via Business Insider, The Hartford Courant reports:

Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday….

Pfizer is now deciding what to do with its giant New London offices, and will consider selling it, leasing it and other options, a company spokeswoman said.

Scott Bullock, Kelo’s co-counsel in the case, told the Examiner’s Tim Carney: “This shows the folly of these redevelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain.”

Here’s how the Associated Press describes the vacant lot:

Weeds, glass, bricks, pieces of pipe and shingle splinters have replaced the knot of aging homes at the site of the nation’s most notorious eminent domain project.

There are a few signs of life: Feral cats glare at visitors from a miniature jungle of Queen Anne’s lace, thistle and goldenrod. Gulls swoop between the lot’s towering trees and the adjacent sewage treatment plant.

 

The landmark case of M’Culloch v. Maryland arose when Maryland attempted to impose a tax on the Bank of the United States branch in Baltimore. Ultimately, in the process of holding that Congress had the necessary-and-proper authority to charter the Bank, Chief Justice Marshall explained that it was thus unconstitutional for a state to tax a federal instrumentality. This rule stands to this day (though there was some litigation over whether federal judges could be required to pay state income tax–they can).

Utah seems to be cooking up a modern-day M’Culloch! A lawmaker in the Beehive State wants to shut off the water flowing to the NSA’s massive data center.

Lawmakers are considering a bill that would shut off the water spigot to the massive data center operated by the National Security Agency in Bluffdale, Utah.

The legislation, proposed by Utah lawmaker Marc Roberts, is due to go to the floor of the Utah House of Representatives early next year, but it was debated in a Public Utilities and Technology Interim Committee meeting on Wednesday. The bill, H.B. 161, directs municipalities like Bluffdale to “refuse support to any federal agency which collects electronic data within this state.”

The NSA brought its Bluffdale data center online about a year ago, taking advantage Utah’s cheap power and a cut-rate deal for millions of gallons of local water, used to cool the 1-million-square-foot building’s servers. Roberts’ bill, however, would prohibit the NSA from negotiating new water deals when its current Bluffdale agreement runs out in 2021.

This bill, to punish a federal agency, would seem to be pre-empted under the logic of M’Culloch, unless I’m missing something else?