Dem
47
GOP
53
Some weeks, we need to catch up on the legal news, before it gets away from us. This is one of those weeks:
Eggheads: So much
winninglosing! Yesterday, the White House suffered another inevitable loss when U.S. District Judge Mark C. Scarsi (a Trump appointee) ruled that the administration does not have standing to sue California over their more stringent egg safety laws just because it (the White House) has different standards, and that if executive agencies were allowed to impose themselves like this, it would make possible all kinds of abuses.Also, you know how sometimes we write marijuana items with a bunch of marijuana-related slang snuck in? Well, Scarsi did the same in his ruling, except with eggs.
Our Take: Someone in this administration should consider reading the Wikipedia article on Federalism in the United States and, even more important, the one on the Tenth Amendment.
Unemployment Rate Inches Upward: The courts have declined to extend the appointment of two more interim U.S. Attorneys.
One of those is in the Eastern District of Wisconsin, where the federal district judges just said "no" to Brad Schimel. In this case, the judges did not select a replacement and were careful not to criticize Schimel or the office. In fact, the judges praised the office's work. Schimel is a former state court judge who ran for the Wisconsin Supreme Court with the considerable financial backing of Elon Musk. Schimel lost to Susan Crawford, who vowed to follow the law and keep the court independent of political influence. Schimel's term expired on March 17.
The other was in the Western District of Virginia, where the judges declined to extend the term of Robert Tracci. The judges also said they would not choose a replacement but would wait until Donald Trump appointed someone who was confirmed by the Senate. Tracci's term was up on March 18.
Our Take: Presumably in both offices, the first assistant U.S. attorney will lead the office until a permanent U.S. Attorney is confirmed, unless "Attorney General" Pam Bondi pulls some other shenanigans to evade the court's ruling.
In any case, these fights continue to play out, with the Department of Justice refusing to follow the law and to recognize the court's authority under the Vacancies Act to deny an extension and then appoint a temporary U.S. Attorney. Each time the courts have done that, Deputy Attorney General Todd Blanche or Bondi have fired them. And Bondi's insistence in keeping these people in place has real consequences on the ground since, without an actual U.S. Attorney, they need main DoJ approval for just about everything. This will eventually reach the Supreme Court, but like so many things this White House does, if they would just appoint competent people to lead these offices in the first place instead of partisan loyalists, it would save everyone lots of time, money and resources.
And as Long as We Are on the Subject of Unemployment: A couple of FBI agents, who were fired by Director Kash Patel because they had the temerity to follow orders when they were told to work on the investigation of Arctic Frost (the internal code name for the efforts to overturn the 2020 election), have sued, asserting that Patel did not observe FBI and federal policy, which says that people can only be fired for cause. It would seem that the two agents are father and son, because court documents identify them as John Doe I and John Doe II.
Our Take: There were already a bunch of suits like this, and there will be a bunch more. What we will be interested to see is, if a Democratic administration is returned in the 2028 elections: (1) Will there be a tsunami of such suits, from people who have been holding out for more gentle treatment? and (2) However many such suits there are, will a Democratic administration just drop the government's defenses, and thus give the plaintiffs an automatic victory? If folks just want their jobs back, that would seem to be a no-brainer. But if they want a million dollars in damages, it's trickier. On one hand, that could get expensive fast, but on the other, a Democratic president presumably doesn't want to be defending the Trump administration's capricious firings in court.
We guess that situations like this are why God invented settlement conferences.
Loaded for Bear: It seems the "AG" isn't the only one making illegal appointments. Bobby Kennedy Jr. got in on the action by firing all the members of the ACIP, which recommends vaccines, information that insurers use to determine what to cover. Kennedy stacked the board with his cronies, who predictably trashed vaccines and made false claims about their effectiveness and safety. But he then bypassed even them and made up his own schedule, which included removing certain vaccines that have protected school kids from infectious diseases for decades.
Now, U.S. District Judge Brian Murphy of the District of Massachusetts has ruled that Kennedy's actions violated multiple federal laws. Katelyn Jetelina, an epidemiologist, explains it thoroughly: "A win for your access to vaccines, federal accountability, and health."
The Judge struck down not only the current committee but also any actions they took. So, the old vaccine regime remains in effect. Kennedy violated laws that require a certain make-up of members on the ACIP and also that require the CDC to consult with ACIP. In addition, he acted "arbitrarily and capriciously" in violation of the Administrative Procedures Act.
Our Take: Public health officials are breathing a sigh of relief that the old schedule will remain in place. Several states have already broken with the CDC and have formed their own science-based vaccine committees that insurers must follow, but the poorest states have not. Kennedy has vowed to appeal, of course, but for now, the quacks can't make kids sick—or, should we say, any more sick thanks to their already having made measles great again.
You Don't Mess Around with Jim: Judge James Boasberg, the Chief Judge for the federal district courts in the District of Columbia, has issued two orders that aim to curb the administration's retribution campaign. Last week, he granted a motion to quash subpoenas issued by U.S. Attorney Jeanine Pirro's office to the Federal Reserve Board and Fed Chair Jerome Powell.
Anyone who paid attention in law school knows that the feds can't just issue subpoenas to harass people; there has to be a valid legal basis and they can't be served for an unlawful purpose. Presumably, Pirro knows it, too. The judge found that the only purpose of the subpoenas was to intimidate Powell because he had displeased the president. Pirro has vowed to appeal, as Trump officials always do, but for now, the investigation, such as it is, is on life support. It's clear Powell is not going anywhere and his term as chair is up in May, so the smart thing to do would be to cut their losses and move on to investigating actual crimes. But don't hold your breath.
In addition, Boasberg has ordered the DoJ to report to the magistrate judge whenever a grand jury has declined to indict. As a result, the Court will be better able to track prosecutors' efforts to harass people when they don't result in an indictment and prosecutors drop the case.
Our Take: It's clear that Boasberg is getting really fed up with the DoJ using the criminal justice system as a tool of revenge and he's coming up with effective ways to put a stop to it. Whatever deference or benefit of the doubt the government used to enjoy in his courtroom is gone. And he is a very well-respected judge, so you can bet other district judges are following his actions closely and will likely follow suit. And Pirro is really taking it on the chin in D.C. and looking increasingly unhinged. In a press conference that she called in response to Boasberg's ruling on the Powell subpoenas, she basically said that she doesn't care whether a case she brings has any merit. If she wants to bring a frivolous case, she will. We suspect the D.C. bar will take note of that admission.
And that's the latest. Court adjourned. (L & Z)