Category Archives: Fifth Amendment

Earlier this month, the U.S. Court of Appeals for the Fifth Circuit held in National Coalition for Men v. Selective Service that requiring men but not women to register for the draft is compatible with the Due Process Clause of the Fifth Amendment (which reverse-incorporates the Equal Protection Clause of the Fourteenth Amendment). The reasoning is essentially that the U.S. Supreme Court in 1981 upheld male-only registration in Rostker v. Goldberg, and courts of appeals must follow Supreme Court precedents (though Professor Michael Dorf writes a persuasive critique of that reasoning here). I want to ask a different question. On the assumption that the U.S. Supreme Court takes this case, what should it do? And more narrowly, do the motives of the mens rights group pressing the equality claim bear on how the case ought to come out?

In the law, motives matter. If you fire a man because he is a man, then you have engaged in sex discrimination, even if he happens also to be an incompetent worker. The mans incompetence may go to remedy, so a court would not compel you to rehire him at the expense of your business. And offering a good reason for firing a person might even help prove that the good reason is what actually drove the termination. If the jury concludes, however, that sex or race or membership in some other protected category motivated the adverse employment action, then the employer will be liable for discrimination.

So the motives of defendants matter, but what about the people bringing the complaint? Is it important that a man or a group of men brought their lawsuit claiming sex discrimination because the man or group of men hates women? I have had at least one exchange with a man who was a regular litigant in the U.S. Supreme Court on behalf of men. He believed that giving only women the legal ability to have an abortion violated the rights of men. He argued that if either of the biological parents wants to terminate a pregnancy, he or she is entitled to do so. The position is so extreme that I had not before heard anyone articulate it as their own (as opposed to as a controversial law school hypothetical). Even this gentleman did not make the argument in court, but he did convey it to me. And though I cannot be certain, I had the impression that his disdain for women led him to believe that forcing his ex-wife to terminate a pregnancy against her will would have been morally equivalent to his ex-wife deciding to have an abortion.

Why do I bring up this story? Because sometimes people, perhaps including the man to whom I spoke, process a legal problem through a filter that asks what we (men, in this case) lose by not getting the exact same rights as they (women) do? If the answer is a lot, then some will conclude that they necessarily have suffered objectionable discrimination. In this mans case, he thought about how having a child you dont want is a major imposition, especially as it entails paying child support for at least 18 years. Given that women confronting this possibility could have an abortion and escape the financial burden, the government must extend that same escape option to men. The considerable additional harm to women if men acquire a right to abort against a womans will doesnt necessarily factor into his equation.

This myopia that tends to ask how men may be getting a raw deal compared to women seems inconsistent with what the fight for equality is about. And the mens rights movement in particular sometimes seems less interested in gender equality than in male supremacy and power over women. According to the Southern Poverty Law Center (SPLC), Warren Farrell, the father of the Mens Rights Movement and member of the Board of the National Coalition for Men (NCM), challenger of male-only draft registration, has said that [w]omen ha[ve] become too powerful and dangerous because, on top of holding sexual power over men, they c[an] then lead to mens downfall with accusations of sexual harassment and assault.

The claim that any policy regarding sexual harassment or assault should (continue to) rest on the notion that women have sexual power over men is troubling. And according to the SPLC, one of the main targets of the Mens Rights Movement has been the Violence Against Women Act of 1994 (because it, like the scourge at which it aims, disproportionately concerns women). The rhetoric of the Mens Rights Movement gets a lot more graphically violent and sexually explicit than the use of the phrase sexual power conveys, so consider the above a G-rated introduction. When NCM challenges male-only draft registration, it accordingly seems unlikely that the group cares about promoting gender equality.

The motive of a complaining party generally has no legal bearing on whether that party may sue or whether its substantive position is likely to succeed on the merits. If a case is meritorious, then the complainant can win, no matter how odious the plaintiff and its motives. Some of the most important free speech precedents involved racist and antisemitic plaintiffs hailing from neo-Nazi groups and the Ku Klux Klan (sometimes represented by Jewish lawyers). And in the criminal procedure area, nearly every significant protection against unreasonable search and seizure involved a proponent charged with a serious crime. Ernesto Miranda (a dead ringer for Al Franken) was convicted (twice) of rape and persuaded the Court to require the now-famous warnings in advance of custodial interrogation. The laws indifference to why a plaintiff or petitioner has brought a case may therefore be quite useful.

On the merits, the discriminatory draft registration requirements are suspect. In addition to dividing people on the basis of sex, the exclusively male draft registration reinforces sex-role stereotypes. What could be more stereotypically male, after all, than going off to war, fighting against an adversary, and using lethal force against the enemy? And the reason that women in the past have had to stay behind was at least in part to take care of the children while keeping the home fires burning, both part of the female stereotype. When a type of sex inequality reinforces stereotypes, it would seem that there is a strong case for eliminating the sex line. The Fifth Circuit upheld the statute because Rostker remains good law. That observation, though true, however, does not stop the Court from overruling or distinguishing Rostker now.

But why is a mens rights group challenging the line at all? In one sense, it sounds like a feminist venture because NCM is attempting to invalidate an invidiously discriminatory, stereotype-confirming line. And yet. It seems perhaps likely that NCMs members have no interest in military service. They may hope that they can eliminate draft registration altogether because Congress would prefer no registration at all than registration of women. And if Congress does decide to require registration from men and women alike, this move would add the entire population of eligible women to those currently available for a future draft. In other words, it is quite possible that this group simply wants to add women to the ranks of cannon fodder, thereby reducing the chances that a man would have to fight if registration leads to a draft.

The mens rights groups own reasons for bringing the case are perhaps offensive but ultimately immaterial. Because there is merit to their petition, I ambivalently support petitioners in this case. For the same reason, I would question the utility of standing doctrine for artificially limiting the universe of potential plaintiffs bringing meritorious claims. The best arguments for a position are no less likely to emerge when a talented attorney represents someone with the wrong sort of commitment to their position than they are when the client happens to have the right kind of skin in the game.

Read this article:
Drafted and Shafted: Who Should Complain About Male-Only Registration? - Justia Verdict

A recent opinion piece in the New York Times, Tax the rich and their heir ... more fairly, was both reassuring and refreshing. It was reassuring to know that policy debates about relatively prosaic public policy issues continue to be debated, even though the country is convulsed with violent unrest and pandemic-related stresses. It is refreshing that the tone of the writer, New York University law professor Lily Batchelder, was measured and civil at a time when so much writing is shrill and strident.

That being said, I disagree completely with the authors contention that inheritance taxes should be increased. On the contrary, they should be abolished.

Calls to raise inheritance taxes stem from two common failings: One moral, one intellectual. The moral error is simple: Thou shalt not covet. The intellectual error (often blended with the moral flaws of arrogance and pride) is the self-delusional belief of the social engineer, the top-down planner, that he or she can competently, wisely, and fairly redistribute others wealth and build a better society.

The spirit of social engineering pervades Batchelders article. Her main rationalizations for wanting to raise taxes on inheritances are:

The typical progressive goal of reducing economic inequality. And yet, such inequality is inevitable in a state of freedom. Economic inequality becomes evil when a corrupt political system keeps the masses poor. As many disadvantaged minority entrepreneurs have proved, there is no keep out sign preventing poor Americans from becoming rich. By all means, lets abolish and punish political cronyism, but lets also realize that most fortunes are built by providing large amounts of economic value for others (making them less poor), and not because the rich have somehow extracted wealth from the poor.

Antipathy to the element of luck by which some people are born to rich parents and others are not. And yet, attempts to eliminate luck via legislation amounts to tilting at windmills. Do we need a law that children of doctors shouldnt be richer than children of English teachers? Look, if luck is bad, then being born in the USA is like winning the lottery which is so grossly unfair that we should give most of our wealth to people with the bad luck to be born into poor countries.

Racial disparities. Professor Batchelder wants to fix the current imbalance of wealth between whites and blacks. However, the cure for past racism isnt to continue to define people according to race; rather, we owe it to all Americans to remove any artificial obstacles to any American honestly getting rich.

Progressive do-goodism. Batchelder wants to use inheritance taxes to invest in children. Government bureaucrats investing in children? Are they endowed with special wisdom and expertise? On what track record does Professor Batchelder base such lofty confidence in government bureaucracies?

Fear of power. Unfortunately, Batchelder doesnt see where the true threat of power lies. She invokes FDRs statement that inherited economic power is as objectionable as inherited political power. Theoretically, maybe, but in reality, what private fortune wields power even a fraction of that wielded by our massive federal government? Who but Uncle Sam can spend several trillion dollars per year of money that isnt earned but forcibly collected? Yes, cronyism is a huge problem, but government is often its cause and facilitator. Inheritance taxes would repose even more power in government.

Inheritance taxes are wrong in principle and in practice. Like so many of our countrys founders, I believe that it is none of the governments business how a person spends his wealth. It isnt illegal for the rich to assemble the worlds most expensive art or classic automobile collection, buy up the most land, or make a Bloomberg-like run for the presidency. And the law allows the super-rich to leave fortunes tax-free to spouses, churches, museums, foundations, etc., so why not to their children (or anyone else)? You say that rich heirs dont need all that wealth and others in society do? That is often true, but who are we to decide what someone else should have? Its not our property, but theirs. (See Luke 12:13,14)

Article I of the U.S. Constitution enumerates the powers of the federal government. That list does not include the power to decide how wealth should be distributed among citizens. Property rights were reinforced by the Fifth Amendment, which was designed to protect personal property from being plundered by a democratic majority, and by the Tenth Amendment, which reiterated the principle that federal power (and therefore spending) should be confined to those few purposes explicitly enumerated in Article I.

Here is an old-fashioned but forward-looking idea: Instead of devising ways for the government to take more wealth from citizens, we the people should strive to shrink government and its expenditures. In the long run, our solvency, our prosperity, and our liberty will require this.

DR.MARK W. Hendrickson is a retired adjunct faculty member, economist, and fellow for economic and social policy with the Institute for Faith and Freedom at Grove City College.

Original post:
The problem with inheritance taxes | Columns - Sharonherald

Schuyler Tilney and 222 Ridgeview Drive (Linkedin, Sothebys)

An investor in energy services and his wife, a former Enron executive, bought a house in Palm Beach.

Schuyler and Elizabeth Tilney paid $6.5 million for the nearly 4,000-square-foot home at 222 Ridgeview Drive, according to records. It was an off-market sale.

The four-bedroom, five-and-a-half bath house was built in 2007. The home has a master suite on the first floor, gourmet kitchen, full home generator and water filtration system, with beach and bike trail access, according to a previous listing.

The sellers, Edwin and Danielle Conway, paid $3.78 million for the house in 2017, records show.

In July, the Tilneys sold a 19,600-square-foot lot in Palm Beach for $6.25 million to spec home builder Todd MIchael Glaser and his partners.

Schuyler Tilney is chairman of oilfield services banking for Houston-based Tudor, Pickering, Holt & Co., which provides strategic and financial advice to investors, management teams, boards of directors, governments and other professionals in the global energy industry, according to the companys website.

Tilney made headlines in the early 2000s as a managing director at Merrill Lynch. He was the lead investment banker in dealings with Enron Corp., a Houston-based energy, commodities and services company that ceased operations after scandals involving corporate corruption and accounting fraud.

Tilney memorably invoked his Fifth Amendment right to refuse to testify during a 2002 Senate committee meeting on Merrill Lynch and Enron.

Elizabeth Tilney was a senior Enron executive. She worked at Enron until January 2002 on the companys crisis management strategy and is credited with introducing the companys crooked E logo. She worked in account management for ad agency Ogilvy during the 1980s.

High-end Palm Beach houses continue to sell despite the global pandemic. In July alone, the ritzy town saw rock star Jon Bon Jovi close on an oceanfront mansion for $43 million.

In addition, cable TV mogul Jeffrey Marcus paid $16 million for a waterfront home, and an ocean-to-lake mansion traded for $51.4 million.

Continued here:
Got the power: Energy investor and former Enron exec pay $7M for Palm Beach house - The Real Deal

Editor's note: A response from a reader prompted the author to amend this post to note an alternative pathway that might support IEEPA sanctions without need to issue a fresh national emergency declaration. The new paragraph appears below in bold, italicized font.

TikTok is in serious trouble, and teenagers across the land are demanding answers about the legal frameworks at issue. Well, maybe they are not exactly focused on the legal issues. But in case you are, heres an explainer.

1. What is TikTok, and why is it in the news?

Never used TikTok? It is an acquired taste, but it is addictively entertaining once you acclimate to it. In brief, its a video-hosting app for user-generated content. Its a bit like a social-media-inflected Youtube in that sense.

But the videos on TikTok are almost entirely super-short (15 second) amateur clips, with lots of content made by and for teens (at least thats how it is in the US market; Im less sure if the same is true in other major TikTok markets). Like any other social-media app featuring user-generated content, most of the clips are less-than-compelling, but theres plenty of brilliant stuff too (Im particularly attached to the clips where a teen pretends to be a dad spouting clichs at his family during a road trip, every word of which Ive actually spouted at my family during a road trip).

So whats the problem? TikTok is owned by ByteDance, a Chinese company that is subject to Chinas laws and other forms of coercion. This has given rise to two lines of concern.

First, there is a concern about the user data TikTok collects and the prospect that Beijing can access that data. Like plenty of other social-media apps, TikToks terms of service authorize it to collect a remarkable amount of data from its users. Because TikTok is subject to Chinese law, the theory goes, the company can readily be compelled by the government to cooperate in providing access to that data (on a targeted or even a bulk basis).

TikTok argues that this is not the case because data from U.S. users remains exclusively in TikToks servers located in America. Im in no position to weigh in on whether that description is strictly true, still less whether data localization in this case would actually preclude remote access by TikTok personnel outside the United States. But Im merely trying to convey the nature of this concern, not resolve its merits. Separately, there also is a line of concern about whether TikTok employs content-moderation policies and practices that serve the preferences of the Communist Party of China. Again, Im not trying to adjudicate the merits of that critique.

Against this backdrop, there have been rumors afoot for some time that the Trump administration might take some action to knock TikTok out of the U.S. market. Now those rumors have evolved into specific warnings of looming action. This Sunday morning, for example, Treasury Secretary Mnuchin expressly stated that TikTok cannot stay in the current format because it risks sending back information on 100 million Americansthe president can either force a sale or the president can block the app.

If your teenager is showing a sudden interest in the separation of powers or other legal matters, this is probably why.

2. Can the executive branch force ByteDance to sell TikTok?

Yes. The relevant legal framework here involves the executive branchs interagency Committee on Foreign Investment in the United States, better known by its acronym CFIUS. Heres a recent Congressional Research Service report if you want to dive deep on the committee. If you just want to explain the situation to your teenager, though, here are the key points:

It is true that the president has no inherent, unilateral authority to create legally-binding rules relating to foreign investment in the United States. The Constitution confers authority over foreign commerce on Congress, not the executive branch. But Congress can and has delegated that authority to the president in various ways. And in 1988, Congress did exactly that in the so-called Exon-Florio Amendment to the Defense Production Act. CFIUS had been around for more than a decade at this point, but this amendment gave it real teeth. The amendment conferred on the President the authority to prohibit mergers, acquisitions, or takeovers that threaten national security (and, by extension, the CFIUS review process would now have leverage to impose conditions on such transactions to ameliorate national security concerns). The statutory framework for CFIUS review has expanded in various ways since then, but thats the key thing to understand: Congress has indeed delegated to the President authority to ban such transactions if the executive branch makes the requisite findings.

None of which would be relevant here, of course, unless at some point there is (or was) a corporate transaction subject to CFIUS review.

Well, there was one a little while ago. TikTok (then called music.ly) was bought by ByteDance in 2018 for nearly $1 billion. Of course, music.ly like ByteDance was a Chinese company. So you might think that CFIUS would have no say over that acquisition. But youd be wrong. For purposes of CFIUS review, a covered U.S. business is any entity that engages in interstate commerce in the United Stateseven if that entity is a foreign corporation. (See 31 CFR 800.252(a) (a US businessmeans any entity, irrespective of the nationality of the persons that control it, engaged in interstate commerce in the United States)). Music.ly may have been a foreign corporation at the time of its acquisition, then, but it had a robust U.S. presence and certainly qualified under this rule.

ByteDance didnt seek approval from CFIUS at the time of the acquisition, no doubt because few if any involved in the deal perceived it as having national security implications. But as TikToks popularity in the United States exploded, and as the two lines of concern described above began spiking over the past year, the picture began to look quite different. And becauseCFIUS authority extends to retroactive review of prior transactions, it was no surprise when CFIUS opened such a review of the ByteDance-music.ly deal in November 2019.

So what happens if CFIUS concludes that ByteDance should not have been allowed to acquire the business now known as TikTok? That situation has arisen many times over the past few years, and the answer normally is that the acquiring entity must divest itself of the acquired entityor else cease operations in the United States. The same may well be on the verge of happening here, plainly.

3. Can ByteDance litigate such a determination?

Only to a limited extent, and they are not likely to win in the end.

In general, CFIUS orders (like other actions under the Defense Production Act) are not subject to judicial review, at least according to the statute. But the D.C. Circuit has construed that statutory prohibition not to apply to constitutional claims that might be made. As Raffaela Wakeman explained for Lawfare in 2014, the D.C. Circuits Ralls decision approved a procedural due process challenge brought by a Chinese company when CFIUS issued a retroactive divestment order involving the companys acquisition of four American companies. (See Ralls Corp. v. Comm. On Foreign Inv. in US, 758 F.3d 296 (D.C. Cir. 2014)). The decision rejected the argument that CFIUS determinations are entirely immune from judicial review when there is a constitutional challenge at stake, and also rejected the argument that CFIUS determinations should be treated as political questions outside the purview of the courts. Further, the court held that the Fifth Amendment requires that the subject of such orders must be given the chance to confront at least the unclassified evidentiary basis for the CFIUS determination and to present their own evidence.

Has ByteDance had such an opportunity over the past 8 months, as the currently-pending CFIUS review has progressed? Im not in a position to know, but I strongly suspect that they have. The review has gone on for quite some time, and that may well reflect an ongoing process of evidentiary disclosures and submissions. In short: ByteDance may well be in the midst of receiving all the process that is due to it. Of course, ByteDance could still sue, objecting that it deserved more process than it got and that the ultimate CFIUS determination was arbitrary despite the process that was given. Im doubtful, however, that they will prevail on either dimension. Sooner or later, in other words, the litigation would run its course and the divestiture order would probably still stand.

4. But theres also much talk about a simple ban on TikTok. Is that just wishful thinking by parents, or is that a thing the President can do?

Yes, its a real thing, thanks to the International Emergency Economic Powers Act (IEEPA). But its complicated.

IEEPA is another example of Congress delegating to the executive branch an aspect of its constitutional control over foreign commerce. Think of it as a general pre-delegation of authority to impose embargoes as well as more-targeted sanctions against foreign entitiesbacked by criminal law sanctionsfor a broadly-defined array of circumstances in which the president determines that U.S. national interests are at stake. (For a deep-ish dive into IEEPA, check out Episode 133 of the National Security Law Podcast). When the president wants to use this authority, he first must issue a public proclamation of a national emergency on a particular situation or subject, under the National Emergencies Act. This opens the door to using IEEPA itself. Under IEEPA, the president (or the executive branch entity acting on the presidents behalf through a further delegation) can investigate, regulate or simply prohibitthat is, banan array of activities involving a sanctioned entity (including payments, notably) and can freeze the assets of that entity (thereby prohibiting all dealings with the foreign entitys interests in those assets). Sometimes this authority is exercised by the president only to the extent of creating a specific sanctions regime, with the actual sanctioning of particular entities to be done at a later date (if it is done at all). At other times, the creation of the sanctions regime is accompanied by at least an initial set of designations of specific entities.

So, can the president sanction ByteDance, and thereby have the effect of banning TikTok within the United States?

The answer is yes, though it might be necessary for the president to make a new national emergency declaration that fits with this unusual scenario. The closest fit among the current national emergencies (and their corresponding IEEPA sanctions frameworks) is probably the one for malicious cyber-enabled activities, which President Obama proclaimed in 2015s Executive Order 13694 (and which he updated in 2016 in Executive Order 13757). But the fit is not strong. That framework plainly was motivated by a desire to respond to malicious foreign hacking (especially from China, to be sure), and despite some loose language it is difficult to read it in a way that would encompass a situation in which the underlying concern is that a foreign company (1) has customer data that it might provide to a foreign government or (2) might employ content-moderation policies hostile to U.S. interests.

[As noted above, the following paragraph was added in response to reader feedback on the original post.]

An alternative possibility is that the administration might assert that this situation falls within the scope of Executive Order 13873 (Executive Order on Securing the Information and Communications Technology and Services Supply Chain), from May 2019. EO 13873, which was inspired by concerns about Huawei and ZTE, opens with the requisite emergency declaration, stating that

the unrestricted acquisition or use in the United States of information and communications technology or services designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of foreign adversaries augments the ability of foreign adversaries to create and exploit vulnerabilities in information and communications technology or services, with potentially catastrophic effects, and thereby constitutes an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. (emphasis added)

Invoking IEEPA, EO 13873 then proceeds to prohibit transactions involving such technologies where the transaction was initiated, is pending, or will be completed after the date of this order [May 2019, though only if the Secretary of Commerce (in consultation with other officials) makes a finding that the technology or service in question is associated with an entity subject to the jurisdiction or direction of a foreign adversary and that the situation entails an undue risk of (a) sabotage of information and communication services in the US, (b) catastrophic effects on US critical infrastructure or the digital economy, or (c) otherwise poses an unacceptable risk to US national security. That third conditiona broad catchallcould plausibly be pushed, perhaps, to encompass the TikTok scenario. But note that the EO by its own terms applies only to transactions initiated on or after May 2019. This is too late to encompass ByteDances acquisition of music.ly, plainly. That said, one path the Trump administration might now choose would be to supplement EO 13837, building off its existing declaration of a national emergency in order to establish a distinct, additional IEEPA sanctions regime. This would spare the White House from the minor trouble of the first step identified in the next paragraph below.]

Accordingly, if the President wants to ban TikTok directly, he probably will need to announce a fresh national emergency, with a tailored focus on foreign government access to data flows that have U.S. person information, foreign government influence on content moderation policies, or both. This he certainly could do, and it could be that this is in the drafting process as you read this. But there are complications, not least of which is the question whether a sanctions system premised on foreign government access to U.S. person data based on U.S. persons using a foreign companys services would complicate the formulation of a strong U.S. government response to the European Court of Justicesrecent Schrems II decision.

5. Fine, so he can ban it. But its on millions of phones in the US already. What would actually happen?

The next question is how such a sanction would play out in the unusual case of a social-media app that already resides on the phones of millions of Americans.

As an initial matter, its clear that TikTok would no longer be made available by US companies like Apple and Google through their app stores. But that leaves all the millions of existing users; what about them, given that the vast majority are unlikely to delete the app off their phones?

It wont matter, for several reasons. First, if the president sanctions the company in the manner outlined above, TikTok could no longer maintain its servers or any other operations or property inside the United States; it will have to operate entirely from foreign locations beyond the reach of IEEPA leverage, which is to say: from China. Of course, it could continue to feed content to U.S. users from there. But what content would that be? TikTok depends on user-generated content, and the U.S. customer base depends largely (though not entirely) on the popularity of users who might no longer feel free to post to TikTok. That certainly will be true for high-profile US-based TikTok creators and celebrities with massive TikTok followings. And when Charli DAmelio and others drop out in favor of whatever might turn out to be the next big platform, theyll take their audience with them.

Ok, thats all for now. If I can talk my kids into showing me how, maybe Ill post a TikTok summary of all this tomorrow. Unless its illegal by then.

Read more:
TikTok and the Law: A Primer (In Case You Need to Explain Things to Your Teenager) - Lawfare

[co-author: David Wright]

Have you ever been startled by the buzzing sound of a passing swarm of angry mechanical bees as you work from home? Have you ever looked out your window and noticed an agile device zipping through your property? If so, drones might be aversely affecting your lifestyle. These little devices once only lived in the imaginations of science fiction writers, but nowadays, they are popular gadgets that many parents routinely buy for their kids during Christmas. The popularity of drones has exploded due to cheaper production costs, advancements in camera and wireless technologies, and the appeal of high-quality birds-eye view footage popularized by aspiring vloggers looking to create impressive visual content. Recently, the COVID-19 pandemic has further fueled drone popularity due to their potential in the context of robotic delivery services. However, despite its advantages, drone technology poses a significant threat to property and privacy rights; luckily, the law offers several grounds to obtain legal remedies if such rights are infringed.

Drone operators must follow established guidelines that regulate drone activity. Under the FAA Reauthorization Act of 2018 ( FAA Act) 349, recreational drone operators must fly their drones at or below 400 feet above ground, register them with the Federal Aviation Administration (FAA), mark them with an FAA-issued registration number, and only fly their drones for recreational purposes, among other requirements. Commercial drone operators must follow 14 C.F.R. 107, which also imposes a 400-feet height limit and imposes the same registration and marking requirements, but the regulation further requires a commercial drone operator to obtain an FAA-certified remote pilot certificate. Additionally, all drone operators must comply with 357 of the FAA Act, which requires operators to conduct drone operations in a manner that respects and protects personal privacy consistent with existing laws.

Given the paucity of caselaw further defining the contours and applications of relevant sections of the FAA Act, those facing a drone issue might wish to bring additional claims utilizing established property law concepts.

First, if a drone flies over (or through) your property, you might wish to establish a trespass claim, but how high do your property rights extend above the ground? Long ago, when a levitating eye in the sky would have been an act of sorcery, the antiquated English law concept of ad coelum et ad inferos (which literally translates to from heaven to hell) established that every inch of space above and below your land belonged to you. However, with advancements in aviation and space technologies, ad coelum et ad inferos has lost its legal potency and new laws and cases have failed to provide a definite answer regarding your air rights. Some cases have only provided loose legal rules. For example, in United States v. Causby, 328 U.S. 256 (1946), a chicken farmer sued the federal government for flying military aircraft at low altitudes above his property. The aircrafts noise and bright lights would cause his chickens to die from flying into the barn walls out of fright. In its ruling, the Supreme Court confirmed that the federal government took an easement under the meaning of the Fifth Amendment, and stated that the landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. Id. at 264. This ruling has served as the backbone for future cases discussing air rights, but the ruling is nonetheless nebulous. Does a property owner who planted tall trees in their yard own more air space than a property owner who owns an open plot? Both caselaw and federal regulations do not provide a definite answer.

Second, another remedy might be achieved by establishing a private nuisance claim. The nuisance would most likely be the loud, and difficult to ignore, whizzing sound created by a drones propellers. Such a sound arguably interferes with your enjoyment and use of property and the interference could be viewed as substantial and unreasonable. A court would apply an ordinary person test to determine whether the noise is a substantial and unreasonable interferenceso repeated (or sustained) drone whizzing during the workday would lead to a much stronger claim than an occasional interference over the weekend.

Privacy law might prove better recourse in the face of camera-equipped drones (a common feature of most drones). In fact, some states have already enacted legislation specifically addressing privacy issues arising from drone technology. In California, Civil Code 1708.08 prevents the use of drones to collect visual imagery, sound recordings, or other physical impressions of persons without consent. Florida adopted Criminal Code 934.50, which forbids a person or state agency from equipping drones with imaging devices to record privately owned real property to conduct surveillance in violation of a persons reasonable expectation of privacy.

Some people might be tempted to take the law into their own hands and shoot down an invading drone, but such an approach carries a high level of risk for the property owner and may lead to civil and criminal liability. Under federal law, willfully shooting down an aircraft (including drones) is a felony that may lead to imprisonment (18 U.S.C. 32)not to mention other potential liability tied to discharging a firearm into the sky. Furthermore, the drone operator could sue the property owner under state tort law and claim damages for the value of the drone and its payload. In response, a property owner would likely have to utilize legal theories like the Castle Doctrine, to the extent such defenses are available, to argue that they acted to protect themselves or their property and their response was proportional to the threat.

Of course, the best way to deal with your neighbors kid flying his new toy around without restraint is to knock on your neighbors door and ask the adults to step in. (One hopes this strategy works when the drone operator is an adult.) However, if you otherwise suspect malicious intent behind drones that routinely visit your house or use your yard as a thoroughfare, a call to the police can help identify the drones owner so that you can potentially utilize the above legal remedies to obtain civil relief.

[View source.]

Read more:
A Drones Eye View of Rights and Legal Remedies - JD Supra

On Wednesday, Connecticut Attorney General William Tong joined 21 attorneys general in filing a lawsuit to stop a new Trump Administration rule that, the coalition alleges, makes it easier for healthcare providers and insurance companies to discriminate against certain vulnerable and protected classes of Americans.

In a lawsuit filed against the U.S. Department of Health and Human Services, HHS Secretary Alex Azar, and the head of HHS's Office of Civil Rights, Roger Severino, the coalition of attorneys general contend that the new rule emboldens providers and insurers to discriminate against LGBTQ+ individuals, those with limited English proficiency and women, among others.

They claim the rule strips express protections for these groups in HHS regulations that implement the nondiscrimination provision of the Patient Protection and Affordable Care Act.

This provision of the ACA prohibits discrimination based on race, color, national origin, sex, disability, or age by health programs or facilities that receive federal funds.

Tong joins New York Attorney General Letitia James, California AG Xavier Becerra and Massachusetts AG Maura Healey, as well as the attorneys general of Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and the District of Columbia in filing the lawsuit.

WHAT'S THE IMPACT?

In the lawsuit filed Tuesday in the U.S. District Court for the Southern District of New York, the coalition argues that HHS has unlawfully ignored the harms that the new rule will impose on vulnerable populations, including LGBTQ+ individuals, individuals with limited English proficiency and women, as well as other protected classes.

The coalition also contends that HHS has failed to justify why it pivoted from its prior policy, which, among other things, explicitly prohibited discrimination in healthcare, and required health entities to provide meaningful language assistance services to individuals with limited English proficiency, including notifying them of their rights to translation and interpretation services.

In addition, the lawsuit alleges that the Trump Administration was motivated by animus toward the transgender community in issuing this rule.

Specifically, the coalition said the new rule is arbitrary and contrary to law under the Administrative Procedure Act, and that it violates the equal protection guarantee of the Fifth Amendment.

THE LARGER TREND

Under the Obama Administration, HHS issued regulations implementing Section 1557 of the ACA in 2016making clear that discrimination on the basis of gender identity, nonconformity to sex stereotypesand pregnancy status are forms of sex discrimination prohibited by the statute. Specifically, Section 1557 prohibits discrimination by any healthcare program (including providers and insurers) against individuals on the basis of race, color, national origin, sex, disabilityor age.

Federal courts have also held that the statute's prohibitions on sex discrimination protect transgender and other LGBTQ+ individuals from such discrimination, which was confirmed in last month's Supreme Court decision in Bostock v. Clayton County.That decision held that discrimination based on sexual orientation and transgender status are forms of sex discrimination prohibited by federal civil rights law.

Despite numerous failed legislative and legal battles to repeal and dismantle the ACA, the Trump Administration's new rule would effectively eliminate many of the express protections contained in the Section 1557 regulations, according to the attorneys general.

They say the move would unlawfully exclude many health insurers from Section 1557's scope, and would embolden healthcare providers and health insurers to deny care and insurance coverage. The new rule, they argue, would also impose barriers and impede timely access to healthcare for Americans, in violation of Section 1554 of the ACA.

Before the rule was finalized, the coalition previously called on the Trump Administration to withdraw the rule by submitting a comment letter to HHS last August, as well as by sending a letter to HHS this past April, at the start of the COVID-19 public health crisis.

Twitter:@JELagasseEmail the writer:jeff.lagasse@himssmedia.com

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Connecticut AG joins healthcare lawsuit against Trump administration alleging LGBTQ+, minority discrimination - Healthcare Finance News

A federal officer faces down protesters on Tuesday in Portland, Oregon.Nathan Howard/Getty Images

Federal violence against protesters in Portland, Oregon, has escalated this week, with federal officers in military gear and helmets using batons and tear gas against protesting moms late on Tuesday night. Throughout the past week, uninvited and heavily militarized Customs and Border Protection agents have been violently seizing and detaining protesters. On Monday, the president promised to expand this operation to Chicago and other majority-Democrat cities. CBP agents are normally tasked with policing the border. So why are they in our cities, potentially violating the First, Fourth, and Fifth amendment rights of Portlanders in ways that clearly have nothing to do with enforcing immigration law? Unfortunately, court decisions created loopholes that have emboldened CBPs lawless behavior against undocumented immigrants at the border, abuses that are now being exported into the interior of the country against American citizens by President Donald Trump.

The White House has deployed the Border Patrol, claiming that their presence is needed to protect court buildings and monuments, and enforce criminal law in American cities. The CBP is normally tasked with enforcing immigration law and apprehending undocumented migrants. It is unclear why the White House enlisted CBP in the current mission. CBP and the Department of Homeland Security more broadly are better-funded than interior federal law enforcement agencies, like the FBI. However, CBP has a very different mandate and culture. The tactics that are now being decried as indicative of fascism or authoritarianism have been deployed by the CBP for years. The authorization of federal authorities in a realm that is generally in the purview of state and local law enforcement may be a symbolic show of federal force and its unclear what these actions are meant to achieve other than dangerous political theater.

After Sept. 11, when immigration, and specifically the Southern border, began to be portrayed as a national security threat, the border became increasingly militarized and the agencys influence grew exponentially. An expansive definition of terrorism helped justify the agencys doubling in size from 2003 to 2019, along with its budget. In 2020, the CBP budget was $18.2 billion, a nearly 20 percent increase from just 2019 and triple what it was in 2003.

Ordinarily, the CBP works primarily in the border regiontheir normal statutory authority is confined to within 100 miles of the borders of the United States. Critically, federal courts have had a tendency to view the border as a place where the Constitution works differently. Its also important to note that CBP officers normally enforce civil immigration law, not criminal law. Constitutional protections also work differently when it comes to enforcing civil law, with one hallmark being less robust procedural protections.Further, the targets for CBP officers are most often undocumented migrants, many of whom either just entered the United States or are seeking entry into the United States.

The border that CBP patrols has been given a different constitutional status, especially with respect to the Fourth Amendment. And it is the Fourth Amendment that is most implicated by federal agents detaining protestors and putting them into vans for interrogation. Suspicion-less stops and seizures forbidden elsewhere have been accepted by both travelers and courts when they occur near the border. These ordinarily occur at border checkpoints, but CBP has taken wide latitude in extending those checkpoints nearly anywhere within 100 miles of the U.S. border, a vast space that includes many major U.S. cities along both American coastlines and the Northern and Southern borders. The Supreme Court has even gone so far as to explicitly allow for racial profiling at the border, and the agency itself was exempt when theObama Justice Department tried to ban racial profiling by law enforcement.

Because the CBP engages in civil immigration enforcement, many of the protections that the public takes for granted under criminal law simply have not applied to their interactions with undocumented immigrants. Judicial warrants are not needed for arrests, and Miranda warnings are rarely, if ever, provided.

Sadly, the Supreme Court itself just this term indicated that undocumented migrants who recently crossed the border have fewer due process rights, with the court denying the right of habeas corpus to asylum-seekers who complain of an unconstitutional process. Even before this decision, some federal district courts ruled undocumented migrants do not have Fourth Amendment rights at all.

What may be most disturbing is how difficult it has been to hold the agency accountable even when it does violate the law.Earlier in the term that just ended, the Supreme Court ruled that a CBP agent could not be sued civilly, even when an officer shot and killed a teenager in cold blood across the Mexican border. The court ruled that the CBP officers constitutional violation had no remedy under the law. While a police officer could be sued under a section of federal law known as Section 1983, no such mechanism existed for the Mexican parents of the murdered teenager.

The CBP has enjoyed legal authority to treat people and communities at the border with force untethered from the Constitution and without legal accountability. It is tragic, but perhaps unsurprising, that they are now conducting themselves in the same reckless and lawless manner in our cities and against people who are accustomed to constitutional protections. As outrage over these tactics used against protesters grow, the public should demand these practices be ended everywhere, including at the border.

Back in early June, there was considerable outrage over the idea of using the military to conduct what are essentially police operations and crowd control. The use of the CBP is perhaps an even worse alternative. The federal police power was viewed with caution by the founders, and federal authority to police crime has wisely been limited in scope and has required explicit congressional authorization. The 10th Amendment of the Constitution specifically designates all powers not designated to the federal government to the states and localities, and police powers have always been deemed to be the strict purview of state and county criminal law enforcement agencies.

Whether the conscription of the CBP to engage in law enforcement in our cities is lawful will be an issue the courts will answer, but in the meantime, the practical implications of this choice will be felt by city residents confronted by officers from the Border Patrol, untrained and unused to being held accountable.

As Yale historian Timothy Snyder, the author of On Tyranny: Twenty Lessons From the Twentieth Century, told the New York Times Michelle Goldberg: This is a classic way that violence happens in authoritarian regime . When fascistic escalations have happened in the past, the people who are getting used to committing violence on the border are then brought in to commit violence against people in the interior.

Perhaps instead of bringing the borderand its lawlessnessto our cities, we should bring democratic rule of law and constitutional rights to the border.

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Trumps Paramilitary Units Trained at the Border for the Assaults on Portland Moms - Slate

A coalition of 23 Democratic state attorneys general are suing the Trump administration over a rule that scraps ObamaCare's nondiscrimination protections for LGBTQ patients.

Led by Massachusetts Attorney General Maura Healey, New York Attorney Letitia James and California Attorney General Xavier BecerraXavier BecerraOVERNIGHT ENERGY: 20 states sue over Trump rule limiting states from blocking pipeline projects | House Democrats add 'forever chemicals' provisions to defense bill after spiking big amendment |Lawmakers seek extension for tribes to spend stimulus money Newsom rips Trump order targeting undocumented immigrants in census: 'Rooted in racism' 20 states sue over Trump rule limiting states from blocking pipeline projects MORE, the lawsuit alleges that the new rule allows providers and insurers to discriminate against certain vulnerable and protected populations.

The administration's rule, released in June, will roll back implementation of the Affordable Care Act's Section 1557, which prohibits federally funded health programs and facilities from discriminating against patients based on race, color, national origin, sex, disability or age.

Advocates and health groups said the policy will make it easier for doctors, hospitals and insurance companies to deny care or coverage to transgender and nonbinary patients, as well as women who have had abortions.

The lawsuit alleges that the Department of Health and Human Services (HHS) has unlawfully ignored the harms that the rule will impose on vulnerable populations.

The lawsuit claims that the rule is arbitrary, capricious and contrary to law under the Administrative Procedure Act, and that it violates the equal protection guarantee of the Fifth Amendment.

The attorneys general also argue that HHS failed to justify why it abandoned its prior policy, which, among other things, explicitly prohibited discrimination in health care and required health care entities to provide meaningful language assistance services to individuals with limited English proficiency.

The lawsuit also argues thatsince the rule was released in the middle of a pandemic, it will impose "unjustifiable barriers to health care on vulnerable populations at a time when access to care is as crucial as ever."

"The COVID-19 pandemic is disproportionately impacting some of our most vulnerable residents, yet this White House is moving forward with a rule that puts these communities at even further risk," Healey said in a statement.

The lawsuit was filed in federal court in the Southern District of New York. It comes after the Supreme Court on June 15 ruled that employment discrimination on the basis of transgender status or sexual orientation is unlawful.

The attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and the District of Columbia also joined the lawsuit.

Washington state announced a separate lawsuit over the rule on Friday. Advocacy groups sued to block the rulein June.

See the article here:
Democratic AGs sue Trump administration over LGBTQ health protections rollback | TheHill - The Hill

Kitsap County judges have ruled a state law unconstitutional that requires those accused of domestic violence crimes to affirm they have surrendered their firearms, finding that the law meant to keep guns away from abusers forced defendants to testify against themselves.

The decision has statewide implications and at least one other countymay heedthe reasoning from judges in Kitsaps superior and district courts but municipal courts in the county are split on whether to continue enforcing the law.

Obviously the goal of the statute has, I think, very beneficial ends in mind, said Steve Lewis, a public defender who has led the opposition to how the order to surrender weapons law works. It wants to remove firearms from the hands of people accused of domestic violence. The mechanism it uses, though, clearly violates the Constitution, thats the problem.

Kitsap County courthouse(Photo: Kitsap Sun file)

Though the law has been in effect for years, it was amended in mid-2019 to make judges responsible for enforcement.

Judges can still forbid people accused of crimes not just domestic violence from possessing weapons while their case goes through the system, however, the law Kitsap judges found problematic was how those accused of domestic violence crimes prove they actually surrendered their weapons.

The judges decisions differ in findings as well as detail. Kitsap County Superior Courts February order, signed by two of the county's eight judges,Kevin Hull and Bill Houser, totaled three pages. Kitsap County District Courts order went to 154 pages, including attachments, along with 586 footnotes.

The two decisions, however, reach a common conclusion: The law violates protections in the U.S. and state constitutions, often known as the right to remain silent famously embedded in the Fifth Amendment.

The District Court ruling found the law which is in effect through the entire state has judges force defendants who may own guns into a cruel trilemma where they had to choose between three options.

First, they admit to breaking the law by actually surrendering their weapons because, after the order is signed, a person is instantly forbidden from touching a gun. There is no grace period."

Second, they could perjure themselves if they own guns and lie that they didnt have guns to surrender.

Third, they could be held in contempt of court if they refuse to do either when called inprove they followed the order.

There are no other choices, that is what this statute basically offers to defendants, its the cruel trilemma, Lewis said.

For the District Court case, in January Kitsap County sheriffs deputies went to an apartment off Fairgrounds Road after receiving reports of a domestic violence assault. A woman there said she and Zachary James Marshall, 24, had a child together and had been fighting, according to court documents. The latest argument took a turn and became physical, the woman said, and Marshall was arrested and charged with fourth-degree assault, a misdemeanor. Marshall pleaded not guilty and was issued the order to surrender his weapons or make a statement under oath.

This court declines to force Marshalls guilt from his own lips, Judge Jeff Jahns wrote in the decision. Three of the four judges found the law also violated the Fourth Amendment the prohibition on unreasonable searches and seizures, but Judge Marilyn Paja dissented on that point.

Kitsap County Superior Court judges made a similar ruling in the 2019 violation of a no-contact order case of Nicholas James Kandow, 25. Deputies went to an apartment on McWilliams Road after receiving reports of a disturbance. A woman answered the door with a fresh black eye, a cut lip and blood on her shirt, according to court documents. The woman denied she had been assaulted but deputies found Kandow, who was prohibited from being near the woman, hiding in a closet. He pleaded guilty in February to a felony for violating the court order and was sentenced to 30 months in prison.

Though no onein Kitsap County is known to have been charged with possession of a firearm while trying to surrender it, Lewis said that is beside the point.

Sure you can tell them to take their guns to the sheriff and hope for the best, they probably will not be prosecuted, Lewis said. But (defense attorneys) are not allowed to advise clients to commit a crime, let alone a felony.

Chad Enright, Kitsap County prosecutor, said the purpose of the law is crucial to protect victims of domestic violence from further and greater violence but the law as written has problems.

Those days after being arrested, that is when the situation is particularly dangerous, and making sure people dont have access to firearms during that period of time is important, Enright said. But you still have to recognize people have the right to remain silent, and finding a way to both keep people safe and respect their rights can be difficult, and Im not sure this statute accomplishes that.

Superior Court handles all felonies in Kitsap County, in and outside of cities, but it gets trickier at the misdemeanor level. If a person is accused of a domestic violence misdemeanor outside of Kitsaps four cities such as in unincorporated areas like Silverdale, Kingston or Olalla their case would be heard in District Court.

The four municipal courts in Kitsap County are evenly split on whether to stop issuing the orders Poulsbo and Bainbridge Island will continue to issue the orders, Bremerton and Port Orchard will not creating a patchwork of enforcement.

Bremerton Municipal Court Judge James Docter said though the decision does not directly apply to him he is going to follow it, as Superior Court acts as an appellate court for his decisions.

If I were to rule differently than Superior Court that would get appealed and it would be overturned, Docter said. I feel I am virtually bound by that decision.

However, the same law applies to civil protection orders, which Docter said he would enforce, as the superior and district courts' decision only applies to criminal cases.

Bainbridge Island Municipal Court Judge Sara McCulloch will continue giving the order to surrender weapons on civil and criminal cases, despite the Superior Court ruling, saying the issue has not been raised before her.

The court has to rule on things that are raised before it, McCulloch said. And this has not been raised before me.

One way to get uniformity is to have the state Division II Court of Appeals rule on the matter, and Enright said the office has charged two people for violating the law, a crime called failure to file proof of surrender of firearms. Enright said if those cases go to trial, and the defendants are found guilty, the case could be appealed, which could lead to uniformity in how judges enforce the law.

Outside of Kitsap, its unknown how other counties and cities are following the law. Lewis said King County has a form where defendants can check a box saying they are invoking their Fifth Amendment rights, a process he said Kitsap cribbed to avoid confronting the constitutionality of the law.

However, Enright said in light of the Kitsap judges rulings, he learned Whatcom County officials are reconsidering how judges there enforce the law. A decision from an appeals court could get all judges on the same page, but Enright said a true fix will have to come from the Legislature.

The current situation is pretty untenable, Lewis said.

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Kitsap judges: Law to help keep guns away from abusers violates the Fifth Amendment - Kitsap Sun

The DACA decision primarily involved principles of administrative law. (I discussed those issues here and here). But the case also involved a challenge brought under the Equal Protection Component of the Fifth Amendment. (Remember, the Fifth Amendment lacks an Equal Protection Clause).

The Plaintiffs alleged that the rescission of DACA violated the Equal Protection component of the Fifth Amendment. Chief Justice Roberts described the claims:

Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump.

I discussed the issue way back when in a September 2017 WSJ op-ed (this litigation has been floating around for three-plus years):

That brings us to Mr. Schneiderman's most unsettling claim: that Mr. Trump can't revoke DACA because he is racist. "The President has demonstrated a willingness to disparage Mexicans in a misguided attempt to secure support from his constituency," the states' complaint argues, "even when such impulses are impermissible motives for directing governmental policy."

The filing cites a litany of Mr. Trump's offensive commentshis warning about Mexican "rapists"; his disparagement of Univision anchor Jorge Ramos; his reference in a presidential debate to "bad hombres"; his attacks on Judge Gonzalo Curielas well as his pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz.

Let's start with Part IV of Roberts's opinion, which was joined (behind the veil of a paper bag) by Justices Ginsburg, Breyer, and Chief Justice Kagan. Roberts rejected each of these three arguments.

None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

We saw a similar argument during the travel ban litigation: Any policy that prohibited entry of people from countries with links to terrorism would be predominantly Muslim.

Second, Roberts rejected the relevance of the history leading up to the rescission:

Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that "DACA received reaffirmation by [DHS] as recently as three months before the rescission," referring to the June 2017 DAPA rescission memo, which stated that DACA would "remain in effect." But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA's legal defects, DHS's decision to reevaluate DACA was not a "strange about-face." It was a natural response to a newly identified problem

Not quite. The newly-identified problem was that Texas threatened to sue. Sessions thought DACA was illegal for years.

Finally, Roberts rejects the relevance of the President's statements about Hispanics. Why? Because the relevant actors are the DHS Secretary and the Attorney General. More importantly, he dismissed the relevance of Trump's statements under the Arlington Heights framework.

But, even as interpreted by respondents, these statementsremote in time and made in unrelated contextsdo not qualify as "contemporary statements" probative of the decision at issue. Arlington Heights. Thus, like respondents' other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.

Alas, this analysis only had four votes. Therefore, we do not have a five-member majority that dismisses Trump's statements, "remote in time and made in unrelated contexts."

Justice Sotomayor could not don this paper bag. She wrote a partial dissent that focused on Trump's statements. It was very similar to her Trump v. Hawaii dissent.

But "nothing in our precedent supports [the] blinkered approach" of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, (2018) (SOTOMAYOR, J., dissenting). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexicoa keystone of President Trump's campaign and a policy priority of his administrationand, according to respondents, were an animating force behind the rescission of DACA. Taken together, "the words of the President" help to "create the strong perception" that the rescission decision was "contaminated by impermissible discriminatory animus." This perception provides respondents with grounds to litigate their equal protection claims further.

She also found there was possible pretext in DHS's sudden reversal:

The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a "significant mismatch between the decision made and the rationale provided." Department of Commerce v. New York (2019). Only by bypassing context does the plurality conclude otherwise.

Justice Thomas offered only a footnote about the Equal Protection Clause:

I concur in the judgment insofar as the majority rejects respondents' equal protection claim.

I don't read this statement to agree with Roberts's analysis in Part IV. He only concurs in the judgment.

Justice Kavanaugh's dissent included a similar line:

I therefore respectfully dissent from the Court's judgment on plaintiffs' APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs' equal protection claim.

As I read the case, only four Justices supported the Chief's analysis.

In total, eight Justices rejected the Plaintiffs' Equal Protection arguments. Though there was not a majority opinion for a rationale. Therefore, there is no holding with respect toArlington Heights. And no actual Equal Protection precedent was set. The John Roberts express chugs along.

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The Equal Protection Issues in the DACA Case - Reason