DACA stands, for now.

Here’s the breakdown:

Five justices, including Roberts, voted that Trump had violated the Administrative Procedure Act.

Eight justices — everyone but Sotomayor — voted that Trump’s action did not violate equal protection.

Three justices — Alito, Thomas, and Gorsuch — ruled that DACA itself was unlawful.

That last ruling is the ruling I believe is correct.

I have not had a chance to read the opinion thoroughly. I am skeptical about the APA argument from what I knew going in, but I’ll have to see how Roberts explains that.

But I know that I believed going in that Obama’s action was unconstitutional. I have believed that for years. So I don’t really care how arbitrary and capricious the decision to rescind it supposedly was. Immigration is Congress’s bailiwick. As Justice Thomas says in dissent: “To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” It is baffling to me how a court can conclude that the creation of such a program, in an area of law assigned to Congress, can be lawful, but rescinding it in the same way is unlawful.

DACA was unconstitutionally created through a pen, and I see no statutory barrier to rescinding it with a different pen.

P.S. Roberts creates a roadmap for how Trump can rescind it the “right” way — knowing that if he does, that action too will be held up for years until we likely have a new president. Whoopee.

P.P.S. If Congress passed a similar law I would likely support it. I would worry about the incentives it creates, but philosophically I don’t believe in harshly enforcing technicalities against completely innocent parties.

This is not about the policy itself but whether it was done the right way. Ironically, that’s what the Court says too — but the majority doesn’t seem to apply their concern about things being done the right way to Obama’s unconstitutional actions, just to Trump’s corrective actions.

[guest post by Dana]

This sounds exactly like Trump:

President Donald Trump has told advisers he wants to find and prosecute the person who leaked the fact he went to the White House bunker as protests escalated in Washington, D.C. earlier this month, according to three sources who spoke to The New York Times. The president later claimed that he had gone into the bunker only for an “inspection,” something he’d done several times before. Attorney General William Barr contradicted that statement on June 8, stating that the Secret Service took Trump into the bunker because of “violent demonstrations” outside the White House.

Um, prosecuted for what exactly?

–Dana

[guest post by Dana]

The announcement was made this afternoon:

The Atlanta Police officer who shot and killed Rayshard Brooks at a Wendy’s parking lot last week was charged with felony murder, and the other officer on scene was charged with aggravated assault, Fulton County District Attorney Paul Howard announced Wednesday.

The decision comes just five days after Brooks was shot twice in the back in Atlanta during an attempted arrest. Officer Garrett Rolfe, who shot at Brooks three times, faces 11 charges in all, and officer Devin Brosnan, who was also on scene, faces three charges.

After shooting Brooks, Rolfe said “I got him” and kicked him, and Brosnan then stood on Brooks’ shoulder, Howard said. The officers did not provide medical aid to Brooks for more than two minutes after he was shot, Howard said.

Their demeanor after the shooting “did not reflect any fear or danger of Mr. Brooks, but reflected other kinds of emotions,” Howard said.

…

Three of the counts against Rolfe are for aggravated assault related to a bullet he fired that hit an occupied vehicle nearby in the Wendy’s lot. Brosnan’s three charges include two counts of violations of oath of office.

Before his encounter with Brooks, Rolfe had already faced complaints against him:

Rolfe was reprimanded in a September 2016 use-of-force incident involving a firearm…No other details were provided.

He also has four citizen complaints on his record, none of which resulted in disciplinary action. Records also show that Rolfe, who was hired in 2013, was involved in five vehicular accidents. One resulted in an oral admonishment and another in a written reprimand, while the rest led to no disciplinary action.

Rolfe’s record also shows an additional use-of-firearms incident, in 2015, without note of any disciplinary action.

Law enforcement believes the shooting was justified:

But some law enforcement leaders said the shooting was justified and protected by Georgia law — which allows a person to use deadly force “only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person.”

Steven Gaynor, the president of the Cobb County Fraternal Order of Police, defended the shooting by saying Brooks posed a threat and had assaulted the officers as he was getting arrested.

“(Georgia law) specifically gives (the officer) the right based on the aggravated assaults and the threat (Brooks) poses to the public and to the officers there,” Gaynor said. “It specifically gives them by law the right to shoot him. (Brooks) chose to make those actions. He chose to to do what he did.”

There is conflicting opinion about the dangers of the Taser that Brooks took from one of the police officers:

The Taser is designed to be less lethal than a firearm, but it can be fatal in some circumstances.

Just two weeks ago… Howard charged several Atlanta Police officers with aggravated assault after they allegedly used a Taser — referred to in the arrest warrant as “a deadly weapon” — on two college students.

“The training we have had for over 20 years tells us if they take your baton or your Taser, it now becomes one step more that you have to use deadly force,” Gaynor said. “Because those can be used against you to incapacitate you and then take your weapon.”

The attorney for the Brooks family told CNN said earlier this week that a taser is not a deadly weapon.

In 2017, Reuters published a comprehensive look at Tasers as a cause or contributor in individual deaths.

–Dana

John Bolton could not have gotten a better draw for this case if he had handpicked the judge himself.

USA v. John Bolton was just assigned to Reagan-appointee Judge Royce Lamberth of the U.S. District Court for the District of Columbia.https://t.co/rwUJ2XrxzX

— JERRY DUNLEAVY (@JerryDunleavy) June 17, 2020

That is a great, great draw for Bolton. Because Judge Lambert has been outspoken about the problem of courts being too deferential to the executive on classification claims. From 2013:

Federal courts are “far too deferential” to the executive branch’s claims that information classified on national security grounds and shouldn’t be released to the public, a prominent federal judge said Monday.

Speaking at a conference for federal employees who process Freedom of Information Act requests, U.S. District Court Judge Royce Lamberth said his fellow jurists usually rubber-stamp agency claims that disclosing information would jeopardize national security.

“It bothers me that judges, in general, are far too deferential to Exemption 1 claims,” Lamberth said, referring the language in FOIA that allows for withholding of information classified pursuant to an executive order. “Most judges give almost blind deference on Exemption 1 claims.”

. . . .

“A lot of the courts have been very hesitant to do very much in that area because there is this constitutional problem” of the judiciary intruding into the traditional executive branch domain of national security, Lamberth told the American Society of Access Professionals training conference in Arlington, Va.

Lamberth, who sits in Washington, D.C., said his views were informed by “a couple of really horrible examples” of intelligence agency misconduct that might have been more quickly exposed and addressed if courts held a more “robust” interpretation of FOIA rights.

That is gooooood for Bolton.

In 2007, I described the book Irreparable Harm by Frank Snepp as one of five books that changed my life, because it “made me understand that sometimes government agents sometimes classify information just to keep themselves from being embarrassed.” The book describes Snepp’s legal fight over his book Decent Interval, which was a scathing indictment of the CIA’s missteps in Vietnam, particularly our abandonment of our allies in country after the Saigon airlift. Snepp fought a losing battle that went all the way to the Supreme Court over the government’s ability to withhold information they claimed was classified but was really done so to prevent embarrassment. (Some people of a particularly authoritarian bent believe that avoiding embarrassment to the government is actually a legitimate interest that justifies classification. Many of these people are involved in classification decisions. Josef Stalin could not have agreed more.) Snepp lost, and the government was able to seize profits from Decent Interval and subject Snepp’s future books to prepublication review.

From Frank Snepp’s experience, I know that even when government classifies information in bad faith to keep the public learning from their missteps, courts can be far too deferential to such bogus classification claims. Judge Lamberth is Bolton’s best chance in this very tough legal environment. This will be interesting indeed — and if (as I suspect) the Trump administration has been using the classification system to keep material from public view that is not sensitive for any reason other than that it embarrasses Donald Trump, I think Judge Lamberth is the one judge we can count on to get to the bottom of it.

[guest post by Dana]

President Trump today signed an executive order that includes an increase in police funding, as well as police reforms:

President Donald Trump on Tuesday signed an executive order aimed at tracking misconduct by law enforcers and creating incentives for departments to improve their practices.

The president, during a speech in the White House Rose Garden that heaped praise on the police and took time to attack his political opponents, said before signing the order that it will ban the use of police chokeholds “except if the officer’s life is at risk.”

…

Trump lauded law enforcement officers at the event, saying that “the least we can do, because they deserve it so much, they have to get our gratitude and we have to give them great respect for what they do.”

“In many cases local law enforcement is underfunded, understaffed and under [supported],” he added.

Trump rejected calls to “defund the police,” and instead, wants to reward police departments for creating better training and higher standards of practice:

The Trump administration’s order rejects calls to “defund the police” that have gained traction from within the nationwide protest movement. Rather, it aims to reward police departments with federal grant money for updating their standards on training and credentialing and will create a database to track individual cops on metrics such as excessive use-of-force complaints, which would be shared between departments.

The order would also give departments incentives to involve trained professionals, such as social workers, to respond to calls for certain nonviolent issues — including mental health, drug addiction and homelessness — rather than police alone.

“I strongly oppose the radical and dangerous efforts to defund, dismantle and dissolve our police departments,” Trump said in the Rose Garden. “Americans know the truth: Without police there is chaos, without law there is anarchy, and without safety there is catastrophe.”

Both the Republicans and Democrats are readying bills on police reforms. However, there is a distinct difference between what the parties believe to be the best way to effect change. It should be noted too that neither party has prepared a bill that would satisfy protesters, as neither goes far enough to “defund the police” (completely revamping police departments):

Central to the Republican package would be the creation of the national database to improve transparency so officers cannot transfer from one department to another without public oversight of their records. The Democrats have a similar provision.

Yet the Republican bill does not go as far as the Democrats do on the issue of eliminating qualified immunity, which would allow those injured by law enforcement personnel to sue for damages. The White House has said that is a step too far. As an alternative, Scott has suggested a “decertification” process for officers involved in misconduct.

One large police union, the influential Fraternal Order of Police, said in a statement it is working with Congress and the White House on the proposals, having provided “feedback” on the Democratic bill and “substantial input” on the emerging GOP package.

Well this should be interesting:

Two Justice Department officials have agreed to testify under subpoena before the House Judiciary Committee next week about politicization under Attorney General William P. Barr, setting up a likely fight with the department about what they will be permitted to say.

House Democrats issued subpoenas on Tuesday to the two officials, including Aaron S.J. Zelinsky, one of the career prosecutors who quit a case against President Trump’s friend Roger J. Stone Jr. after Mr. Barr and other senior officials decided to intervene to reverse their recommendation that Mr. Stone be sentenced in accord with standard guidelines and instead requested leniency.

The other official who agreed to serve as a witness is John W. Elias, a career official in the Justice Department’s antitrust division. The division opened an inquiry into a fuel efficiency deal between major automakers and the state of California; congressional Democrats have called the scrutiny politically motivated.

Democrats are calling the officials whistle-blowers. The chairman of the Judiciary Committee, Representative Jerrold Nadler, Democrat of New York, said in a statement that Mr. Barr has refused to testify himself, so the committee was moving forward with oversight of his actions without him.

At this point I’m more interested in hearing from the Flynn prosecutors. Maybe Judge Sullivan will have them testify after Flynn loses the writ.

[guest post by JVW]

Well, this is one way to defund the police. Per Bill Melugin of Fox News Los Angeles, here is a message that was allegedly sent to members of the LAPD earlier tonight by their chief:

I’m sure that deep down inside the LAPD rank-and-file knew they would be made to suffer for the sins of law enforcement against the Forces of Woke, but being told that $40 million in overtime compensation is going to be converted into future time off has to be a slap in the face. Yes, LAPD cops still have it better than a lot of workers who have lost their jobs during the entire COVID-19 scare, yet somehow I don’t see this move (combined with Mayor Garcetti’s earlier announcement that around $150 million would be moved from the LAPD budget to some nebulous community services fund) engendering much good will between Spring Street and First Street. Indeed, Mr. Melugin goes on to inform us that officers are reacting kind of how we might expect them to react:

According to multiple LAPD sources, LAPD Transit Division/MTA services, which is paid via OT, had 43 officers cancel their shifts today, and they are now averaging 12-18 cancellations per shift. I’ll be live at 6 on @FOXLA

— Bill Melugin (@BillFOXLA) June 16, 2020

No more overtime for the Human Trafficking Taskforce? Yeah, that won’t come back to haunt them down the road.

– JVW

[guest post by Dana]

Apparently so:

Just a week before the much-awaited book by President Donald Trump’s former National Security Advisor John Bolton is set to go on sale, the Trump administration is expected to file a lawsuit in federal court seeking an injunction to block the book from being released in its current form, sources familiar with the matter told ABC News.

The lawsuit is expected to be filed in the coming days and could come as soon as today, sources said, cautioning that some details are still being worked out.

Bolton, who departed the Trump administration last fall, was originally supposed to publish his book, “The Room Where It Happened,” earlier this year, but it was met with delays from the White House as the book went through a standard prepublication security review for classified information by the National Security Council.

Details about the book:

In a description of the coming book, Bolton’s publisher says, “What Bolton saw astonished him: a President for whom getting reelected was the only thing that mattered, even if it meant endangering or weakening the nation.”

According to the description, posted online, Bolton details potentially impeachment-worthy “transgression” across “the full range” of Trump’s foreign policy.

Bolton and the NSC are at odds over the book, as the NSC claims that “significant amounts” of classified information are in the book and Team Bolton denies the assertion, saying that none of it “could reasonably be considered classified.”

While the administration will attempt to block the book from being published in its current form because of it allegedly containing classified information, the book’s publisher claims that any necessary adjustments to the book have already been made:

…the publisher said that in the weeks before Bolton’s book was printed,Bolton worked with the NSC to address NSC’s concerns, and the “final, published version of this book reflects those changes.”

Before reporters today, Trump pushed back against Bolton and his soon-to-be-released book:

Trump asked AG Barr to weigh in on @AmbJohnBolton's book release. Barr said there is a process for clearing books, adding that Bolton "hasn’t completed the process." He said that publishing the book while Trump is in office is “unprecedented."

— Vivian Salama (@vmsalama) June 15, 2020

Because of Team Trump’s legal moves to postpone the release of the book in its current form and his wide-spread unpopularity, it’s hard not to see how this will only make people more curious about the contents of the book, and also – unintentionally – give the book free publicity. Apparently, I’m not alone:

–Dana

6-3, with Roberts and Gorsuch joining the lefties. Gorsuch wrote the opinion. Justice Gorsuch says, essentially, that when Congress outlawed discrimination “because of” sex in Title VII, Congress must have meant to include gays and transgenders “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

I leave the discussion of the policy to another time, but purely as a matter of legal interpretation, I think Justice Alito in dissent has the better of the argument:

The Court tries to convince readers that it is merely en­forcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination be­ cause of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpreta­tion of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual ori­entation––not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevita­ble product of the textualist school of statutory interpreta­tion championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Jus­tice Scalia excoriated––the theory that courts should “up­date” old statutes so that they better reflect the current val­ues of society. See A. Scalia, A Matter of Interpretation. [He is right. I own the book. — P]

If the Court finds it appropriate to adopt this the­ory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

It indisputably did not.

I have bolded what I consider the key passage.

Gorsuch’s approach, in my view, is not Scalia’s textualism, but a sort of literalism that ignores the reasonable understanding of the words at the time they were written. That was Scalia’s textualism, and I believe he would have joined Alito’s dissent, and written a scathing one of his own, if he had lived to see this day.

[guest post by Dana]

The autopsy report has been released in the shooting death of Rayshard Brooks by Atlanta P.D. officers:

Rayshard Brooks, the black man shot by Atlanta police outside a Wendy’s in the city’s Southside Friday night, suffered organ damage and blood loss from two gunshot wounds, the Fulton County Medical Examiner’s Office determined Sunday after completing an autopsy.

“His cause of death: gunshot wounds of the back,” an investigator from the medical examiner’s office told The Atlanta Journal-Constitution.Fulton County District Attorney Paul Howard released a statement about it Sunday.

“Today, members of my staff had the unfortunate duty of witnessing the autopsy of Mr. Brooks as part of our continued investigation.“Because this is a homicide investigation, there are several technical requirements that must be met before we are able to reach a decision. That includes the confirmation of the ballistics involved and obtaining a preliminary report from the Medical Examiner,” according to the DA’s statement.

You can read the account of Rayshard Brook’s death in Atlanta on Friday night here. There is also video at the link.

Rayshard Brooks leaves his wife and 4 young children behind.

–Dana