January 24, 2022

Here's How Biden Can Fix the Supreme Court's Terrible Mistake in the Vax or Mask Case

[Cross-posted from Los Angeles Times]

By Aaron Tang

There is a lot to dislike about the Supreme Court’s decision to invalidate the Biden administration’s requirement that workers either vaccinate against COVID-19 or test and mask at work.

The court’s party-line ruling invented limits on the Occupational Health and Safety Administration’s express authority to “protect employees” from the “grave danger” of exposure to “new hazards.” The conservative justices substituted their own judgment for the considered expertise of public health officials. And in the end, they issued a decision that, if uncorrected, will leave millions of Americans exposed to grave workplace health risks and could result in thousands of needless deaths.

Concerned Americans are right to question a court that would make such serious mistakes. The Biden administration is right to do the same. But as it does, it must not lose sight of a greater obligation: the need to respond to the ruling in whatever way legally permissible to protect American workers. Fortunately, the majority opinion in the case leaves open a surprisingly straightforward way for the administration to do just this.

Start with the actual rationale the court used to block OSHA’s vaccinate-or-mask requirement. The court did not dispute that the agency has the legal authority to protect workers from the dangers posed by the pandemic. It instead argued that OSHA swept too broadly by requiring employers to enforce what the court called a “vaccine mandate.” (In truth, OSHA’s emergency standard granted employers a choice between requiring all workers to vaccinate or requiring unvaccinated employees to undergo weekly testing and mask while at work).

The problem the conservative justices found with the so-called vaccine mandate is that it was “strikingly unlike the workplace regulations that OSHA has typically imposed.” Other workplace safety regulations, they said, protect workers while they are at work; vaccines protect workers both at work and outside it, too. The majority thus decided that OSHA’s vaccine rule was impermissible because vaccines “cannot be undone at the end of the work day.”

High quality masks, though, can be taken off after work. And rapid tests can be conducted in just minutes at the start of work or beforehand. So on the conservative majority’s own terms, OSHA would be within its power to require workers to test and mask while at work. Such a rule would fix the court’s complaint about the prior OSHA order precisely because it would be limited to the workplace dangers posed by COVID-19, without extending further. Indeed, OSHA has already enacted medical exam and face covering requirements in other work contexts, further demonstrating that a test-and-mask rule would be firmly within the agency’s authority.

Of course, some employers may balk at the notion of compelling all of their workers to test weekly and wear masks, especially employers that rightly recognize the existence of a simple, proven alternative that also powerfully reduces the virus’s spread: vaccination. So OSHA’s new emergency rule should permit employers to waive the test-and-mask-while-at-work mandate for employees who choose to get vaccinated. (Nothing would prevent the vaccinated from masking as well, which would increase their protection.)

In other words, OSHA should rewrite its rule in reverse order. Rather than requiring employers to adopt a mandatory vaccination policy with an exception for employers that instead require unvaccinated workers to test and mask, OSHA’s new regulation would make employers mandate worker testing and masking first, with an exception allowing employers to waive this rule only for the vaccinated.

You may think merely flipping the order of these requirements is too clever by half. But if it seems that way, it’s only because the court’s opinion on Thursday was itself too clever. There is, after all, nothing in relevant statutes that prohibits OSHA from protecting against workplace dangers through requirements that have the incidental effect of protecting against similar dangers outside of work too.

Indeed, reenacting OSHA’s COVID workplace safety rule as a mask-or-vax mandate would comport precisely with the conservative justices’ majority opinion. They admitted, for example, that “targeted regulations” that “account for [the] crucial distinction” between “occupational risk and risk more generally” would be “plainly permissible.” That is exactly what a rule requiring workers to mask only while at work would do.

It is possible, of course, that under a revised mask-or-vax rule, more employees would choose to test and mask while at work rather than get vaccinated. But given a choice between obtaining a vaccine and taking on the burdens of testing and daily masking, at least some would choose the former.

Most importantly, even if the rule’s ultimate effect is only to make testing and mask-wearing widespread within places of work across America, that would still represent a considerable public health advancement. Dozens of states do not currently require masks indoors despite ample evidence that masking saves lives and enjoy widespread public support. The Supreme Court may have handed U.S. workers a dangerous and legally ungrounded blow. But the Biden administration can act decisively to protect them in this crucial moment.

January 24, 2022

Seditious Conspiracy Was the Right Charge for the January 6 Organizers

[Cross-posted from The Atlantic]

By Carlton Larson

On Jan. 13, a federal grand jury indicted 11 members of the so-called Oath Keepers for seditious conspiracy. Such charges are exceptionally rare—and, quite obviously, extremely serious. If convicted, these defendants could face up to 20 years in prison.

And yet many Americans think that the charges should have been even more serious: treason against the United States. Although that’s not an implausible argument, the Justice Department made the right decision. Treason prosecutions would have introduced significant legal complexity, while doing very little to increase sentences. Seditious-conspiracy charges, by contrast, are perfectly pitched to the gravity of the offenses, and given the substantial evidence laid out in the indictments, should be relatively straightforward to prove.

Seditious conspiracy is defined as “conspir[ing] to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.” In the past 30 years, there have been only four sets of indictments for this offense. Most notably, the Justice Department successfully convicted Omar Abdel-Rahman of seditious conspiracy for his role in the 1993 World Trade Center bombing. But the most recent seditious-conspiracy prosecution—of Michigan militia members in the early 2010s—was a fiasco. A judge dismissed the seditious-conspiracy charges, finding them unsupported by the evidence.

Some have raised concerns about the scope of the seditious-conspiracy statute. For example, the University of Wisconsin law professor Joshua Braver has warned that seditious-conspiracy prosecutions could be subject to significant abuse. After all, the literal language of the statute might cover actions such as the Women’s March, which interfered with Capitol operations during Brett Kavanaugh’s confirmation hearings. Braver prefers the charge of “rebellion or insurrection,” which he believes is a better fit for the events of January 6.

I disagree. Seditious conspiracy is an entirely appropriate charge for some of the January 6 participants, as I suggested at the time. The attack was aimed at the most essential ritual of democracy—the peaceful transfer of power. The possibility that prosecutors might abuse the charge in the future is hardly a reason to shrink from it now, when it is most applicable. To be clear, seditious conspiracy is relevant for only a small subset of the people who entered the Capitol on January 6. The offense requires a conspiracy—a prior agreement to commit particular offenses; it does not encompass people who simply made impulsive decisions in the heat of the moment. According to the allegations in the indictment, the Oath Keepers plotted their moves for weeks in advance, coordinated weapons stashes outside of Washington, D.C., donned combat and tactical gear, and were in constant communication throughout the attack, all for the purpose of disrupting the certification of the 2020 election results. If this is not a seditious conspiracy, it is hard to know what is.

These alleged facts also warrant at least a consideration of treason charges. Under the Constitution, treason is limited to two offenses: levying war against the United States and “adhering to their enemies, giving them aid and comfort.” Adhering to the enemy is the more familiar type of treason. All of the 20th-century treason cases, such as the prosecution of Iva Toguri, the so-called Tokyo Rose, involved aid to a foreign enemy. By contrast, no person has been charged with levying war against the United States since the 19th century when, for example, the charge was brought against Jefferson Davis, the president of the Confederacy, at the end of the Civil War.

It was also the charge brought in the very first federal treason cases—prosecutions of tax protesters in Pennsylvania following the Whiskey Rebellion of 1794 and Fries’s Rebellion of 1799. The Whiskey rebels attacked the home of a federal tax official and assembled a large group of armed men in opposition to the federal excise tax on whiskey. The Fries’s rebels released prisoners from federal custody out of opposition to a federal property tax. In both cases, Supreme Court justices held that the alleged conduct amounted to treason. The use of force to obstruct a particular federal law, they argued, constituted levying war against the United States.

Storming the Capitol to obstruct the Electoral Count Act and sending members of Congress fleeing in terror is far more egregious—and more of a direct affront to the government—than anything done by the Whiskey rebels or the Fries’s rebels. But the understanding of “levying war” may have changed. In a famous 1851 decision involving armed opposition to enforcement of the federal Fugitive Slave Act, Justice Robert Grier suggested that levying war against the United States requires an intent to overthrow the government entirely, not just to obstruct the operation of one particular law. It was a trial-level decision, but it may prove convincing to courts today. If so, the question would then become whether the defendants sought to overthrow the government in its entirety.

Applied to January 6, this sounds like a law-school-exam hypothetical from hell. After all, the defendants would insist that, far from trying to overthrow the government, they were in fact supporting the incumbent president of the United States. If they honestly, but foolishly, believed that the election was stolen, did they have the requisite criminal intent to commit treason? Who exactly is overthrowing the “government” if one branch decides to wage war on another? Can one overthrow the government by attacking only the legislative branch? These questions are profoundly interesting from a philosophical perspective, but I fully understand why Justice Department attorneys would recoil in horror from having to debate them in court.

A further obstacle to a treason charge is far more mundane. The Constitution requires that treason convictions be supported either by two witnesses to the same overt act or a confession in open court. Although no court has ever addressed the question, videotape evidence is likely not a sufficient substitute for two witnesses; in cases arising out of World War II, for example, the Justice Department decided that radio-broadcast recordings of defendants distributing enemy propaganda were not legally sufficient for conviction. Unless the Oath Keepers begin turning on one another, finding two witnesses to distinct, overt acts may be difficult.

Given all the legal complexities the Justice Department has to consider, seditious conspiracy was clearly the right choice. In a recent speech, Attorney General Merrick Garland pledged that “the Justice Department remains committed to holding all January 6 perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” The most recent indictments are a promising step in that direction.

January 19, 2022

How President Trump Reminded Us of the Value of a Legal Education

[Cross-posted from Daily Journal]

By Kevin R. Johnson

Law school deans often spend their days thinking about rather ordinary matters, such as tuition and finances, admissions, law student job placement, school rankings, and bar passage rates. But with the election of Donald Trump deans experienced something extraordinary that goes to the very core of the mission of law schools. 

Over four tumultuous and contentious years, President Donald J. Trump's approach to governing, perhaps unintentionally, reinforced the importance of the fundamental nature of legal education in a democratic society. 

As one would expect, the Trump administration's repeated dismissal of the facts and the law had consequences. The nation watched with disbelief as a historic event unfolded at our nation's capitol on Jan. 6, 2021. President Trump's baseless allegation that the 2020 election was stolen, repeated in a speech only minutes before violence broke out, directly led to an armed insurrection by white supremacists in Washington D.C. Some observers characterized the violence as an attempted coup d'état.

But the assault on our legal institutions, legal analyses and the rule of law started long before the insurrection. The election of President Trump had impacts that reverberated through law schools across the United States. The early years of the Trump presidency saw the so-called "Trump Bump” in the number of law school applications. Many law school applicants reported an expressed interest in going to law school so they could challenge the existential threat to civil rights of the Trump administration.

Law faculty responded. At UC Davis, for example, Professor Elizabeth Joh released a podcast “What Trump Can Teach Us About Con Law.” Professor Carlton Larson provided expert opinions to the Washington Post, New York Times and other news organizations about whether the president’s conduct amounted to treason.

In addition, our faculty found teaching immigration law more relevant than ever. Consistent with the president's propensity for making racist statements, the Trump administration put into place a staggering array of immigration policy initiatives, including, but not limited to the infamous policy of separating migrant children from their parents and the "Remain in Mexico" policy, both of which applied almost exclusively to Central America.

Shortly after the announcement of President Trump’s Muslim ban, students and faculty raced to airports to assist noncitizens. Student interest in civil rights and immigration spiked. Our clinics provided vital information to immigrants in the crosshairs of the Trump administration’s immigration policies. Students in real time could see the significance of lawyering skills.

A much more subtle, yet potentially far-reaching, change emerged from the chaos generated by President Trump's approach to policymaking and governing generally.

Consistently playing fast and loose with the facts and law like no other modern president, Trump effectively placed into question the basics of legal analysis — and thus the core of legal education. Careful treatment of the facts and application of the law is the bread-and-butter of a legal education. They were not, however, characteristic of the president's partisan approach to many policy issues. He misrepresented facts and regularly questioned, if not subverted, the law and the courts. Moreover, all too often, the Trump administration allowed racial passions to dominate policymaking.

To illustrate the need for rigorous policy analysis, consider the nation's general reckoning with systemic racial injustice like the controversial issues that dominated the headlines in 2020, with police killings of African-Americans crying out for immediate transformative change.

As seen in his response to the Black Lives Matter movement, Trump regularly denigrated legal requirements and took extraordinary policy steps in violation of the law. Contrary to fundamental understandings that the action was unlawful, the president sent the U.S. military into the streets of Washington D.C. to control crowds protesting in the summer of 2020. Similarly, he took the extraordinary step — bordering on the unlawful if not downright illegal — of deploying Department of Homeland Security officers to disperse protesters in Portland, Oregon and Oakland, California. At frequencies and ways not seen in any other modern presidential administration, Trump pushed policy to the limits of the law and well beyond. In some instances, the Courts including the Supreme Court, intervened. The Court, for example, rejected the Trump administration’s partisan effort to add a citizenship question to the 2020 Census.

As law professors, we must translate policies in action into education. Racism has a lengthy pedigree in U.S. history. Critical race theory has offered invaluable insights on the centrality of race historically to the law as a tool to maintain white supremacy. It has identified how race has indelibly influenced the development of the criminal justice system in the United States and its devastating impacts on communities of color. Racism obviously motivated Jim Crow and institutionalized racial segregation. It rationalized the suppression of Black voters. It led to racist immigration laws.

The powerful insights of CRT shed light on these racist milestones in U.S. history. The contemporary reckoning with systemic racism has fueled efforts by law schools to incorporate racial justice and CRT into the curriculum.  Not surprisingly with the Trump administration’s assault on civil rights, students have demanded more CRT and race in the law school curriculum.

Despite the powerful insights of CRT, the Trump administration sought to halt efforts to incorporate the teachings of CRT on racial justice into the workings of the U.S. government. Efforts at teaching the nation's unfortunate racial history were challenged as well. The controversy sparked by Trump directly fueled passionate and divisive efforts to outlaw the teaching of CRT in the public schools.

The Trump administration's approach to public policy issues taught a valuable cautionary lesson: law schools should not abandon the basic emphasis on educating students to rigorously analyze the facts and identify the applicable law to reach a conclusion.

Kevin R. Johnson is dean of UC Davis School of Law and the author of a chapter in “Beyond Imagination? The January 6 Insurrection” (2022), a book by law deans.

January 10, 2022

King Hall Turkeys

Photo by Menesh Patel

As you can see, in the absence of students, a flock of turkeys has taken over the law school.

January 10, 2022

Protect the Public's Interest with Kern River Water Allocation Decision

[Cross-posted from CalMatters]

By Karrigan Bork

There’s a water fight brewing on the Kern River. The State Water Resources Control Board’s handling of the conflict will be telling for the future of California’s streams and rivers. 

If the water board takes seriously its duty to protect the public interest, this conflict could lead to better water management statewide.

The Kern River starts on the slopes of Mount Whitney and (sometimes) flows through Bakersfield. It once supported a vast ecosystem of wetlands and lakes, teeming with wildlife and offering an escape from the heat of the San Joaquin Valley. As with several California rivers, every drop of water in the Kern River has been diverted since the mid-to-late 1800s, destroying the wetlands and draining the river.

California laws are supposed to protect rivers from this fate, and the California Supreme Court has ruled that all water allocations must consider the public trust doctrine, which protects the public’s interest in healthy rivers and streams. However, Kern River water rights are so old that they have never been assessed against modern environmental laws. 

Under the state Supreme Court precedent, the water board has both the power and the duty to adjust antiquated water rights to protect public trust interests, but it seldom does. Fortunately, the water board now has an opportunity to reassess these rights.

A 2007 California appellate court decision struck down some of the oldest water rights on the Kern because the right-holder failed to use the water. This unusual ruling means that new rights to Kern River water might be available for the first time in more than a century. Nearby cities and area water districts pounced, filing six applications for any unclaimed water. Public-interest organizations suggest the water should be used to restore portions of the Kern.

Before the water board can allocate the water, it must determine whether the forfeiture actually freed up any water. The water board’s Administrative Hearings Office is currently trying to determine how much water is already claimed under existing rights and whether there is any water left for the new applicants. Making this decision requires evaluating the historic Kern River water rights. 

The water board should take this opportunity to consider whether the existing rights adequately protect the public trust. If not, as the state Supreme Court has indicated, those rights should be adjusted to comply with modern law. But the water board seems poised to ignore the public trust in this phase of the proceedings. Instead, it plans to defer consideration of public trust until after it decides whether existing right holders can soak up all the available water. 

This approach assumes the validity of the old water rights and puts the public’s interests last, behind all the existing right holders. If the public only gets the leftovers, there will never be enough water for a healthy environment. That falls short of the Supreme Court’s mandate to the water board – public trust protections extend to all waters, not just whatever is left after everyone else takes their cut.

Under California law, the water board must determine whether the historic water rights adequately protect public interests. Over the past century and a half, California has become a leader in environmental protection, but our leadership has lagged when public interests and water rights clash. 

This conflict offers the water board an opportunity to set a vital precedent: that whenever the board considers claims under existing water rights, it will assess whether those rights are still valid in light of the board’s modern responsibilities to the public. 

Setting this precedent would put the water board on a path toward improved water management across California by adjusting historic rights to reflect modern priorities. The board has the authority and the responsibility to make the right decision. We’ve come a long way since the 1800s, and it is high time for these old water rights to catch up.

January 10, 2022

9th Circuit's Top 10 Environmental Law Decisions of 2021

[Cross-posted from Daily Journal]

By Richard M. Frank

In 2021 the 9th U.S. Circuit Court of Appeals remained -- save only the U.S. Supreme Court -- the most important court in the United States when it comes to environmental law. This year the 9th Circuit also maintained its role as the most prodigious source of key environmental decisions of any federal appellate court -- issuing nearly one per week.

With apologies for any perceived sins of omission, here's my chronological list of the 9th Circuit's 10 most important environmental law decisions of 2021:

Juliana v. United States, 947 F.3d 1159 (Jan. 17, 2020) (rehearing en banc denied, Feb. 10,2021). Unquestionably the most closely watched 9th Circuit environmental case of 2021, Juliana involved a lawsuit brought against the federal government by a group of children and their guardian ad litem (renown climate scientist James Hansen). They claimed that the government's failure to take concrete steps to reduce U.S. greenhouse gas emissions violates the government's public trust-related obligations to future generations, as well as the plaintiffs' substantive due process rights. A divided three-judge panel ruled that the young plaintiffs lacked Article III standing to bring the lawsuit, reversing the district court. The third panel member wrote an impassioned dissent, arguing that the children did have constitutional standing, and that their substantive claims have legal merit. (The dissent had the better of this argument in my view.) Of critical importance, both the majority and dissenting opinions agreed that climate change is real and poses an existential threat to the planet. But their disagreement over the judiciary's proper role in addressing climate change makes for compelling reading. While the Juliana case itself is now final, its legacy remains: Related Juliana-type lawsuits remain pending in courts across the country.

United States v. Walker River Irrigation District, 986 F.3d 1197 (Jan. 28). This decision is the latest chapter in long-running federal court litigation over the Walker River (an interstate river with its source in California's Eastern Sierra that flows east into central Nevada and ultimately into Walker Lake). In a case whose facts closely mirror those of the California Supreme Court's iconic 1983 National Audubon Society public trust decision, Nevada local governments, Native American tribes and environmental groups argued that uncontrolled water diversions from the Walker River are destroying the ecosystem and environmental values of both the river and Walker Lake. They claimed that the diversions therefore violate the public trust doctrine. The 9th Circuit initially referred the dispute to the Nevada Supreme Court for a determination as to whether the public trust doctrine applies to constrain previously permitted water diversions in that state. After the Nevada court answered that question in the negative and returned the case to the 9th Circuit, many observers thought that the case there was over. They were mistaken. Instead, and in a partial victory for the public trust plaintiffs, the Court of Appeals remanded the lawsuit to federal district court, with instructions to allow the plaintiffs to pursue their public trust claims, with certain conditions.

City & County of Honolulu v. Sunoco LP, 2021 WL 1017392 (March 13). This case is one of many currently pending climate change lawsuits brought by state and local governments around the country. Originally filed in state courts, these lawsuits advance state common law theories against the fossil fuel industry. They seek money damages to reimburse the governments for their climate change-related response costs attributable to greenhouse gas emissions from the defendants' fossil fuel products. In the Honolulu case, a 9th Circuit panel denied defendants' motion to block the federal district court's remand of the litigation back to state court after the defendants had removed it to federal court. The Court of Appeals ruled that the industry had failed to demonstrate they would suffer irreparable harm if forced to litigate the case simultaneously in state and federal court. (It's unclear if this 9th Circuit decision will withstand the U.S. Supreme Court's potentially inconsistent ruling in the related case of BP P.L.C. v. Baltimore, 1412 S. Ct. 1532 (2021).

League of United Latin American Citizens v. Regan, 996 F.3d 673 (April 29). This is both an environmental justice and public health decision -- and an important, action-forcing one at that. It's the culmination of a long-running battle by civil rights and environmental groups to have the U.S. Environmental Protection Agency regulate the pesticide chlorpyrifos under federal environmental laws. Those efforts finally paid off: The 9th Circuit ruled that the EPA violated multiple federal environmental statutes by its longstanding evasion of its statutory duty to determine whether current tolerances of chlorpyrifos are safe. Its patience at an end, the Court of Appeals ordered the EPA to either publish such a finding or ban the pesticide within 60 days of its decision. The EPA ultimately opted to do the latter last summer.

Hardeman v. Monsanto Corp., 997 F.3d 941 (May 14). In another key toxics case, the 9thCircuit upheld a district court judgment that the Monsanto herbicide Roundup caused the plaintiff's cancer. A critical component of the Court of Appeals' decision was its holding that the plaintiff's failure-to-warn product liability claims were neither expressly nor impliedly preempted by the Federal Insecticide, Fungicide and Rodenticide Act.

National Pork Producers Council v. Ross, 6 F.4th 1021 (July 28). A growing subcategory of9th Circuit environmental jurisprudence involves the regulated community's invocation of various constitutional doctrines to block or narrow application of environmental and related regulatory programs. In National Pork Producers Council, an out-of-state trade group challenged the constitutionality of a California ballot initiative barring the sale of pork products in this state from improperly and inhumanely confined animals. The trade group argued that enforcement of this requirement against out-of-state pork producers violates dormant commerce clause principles by unduly burdening interstate commerce. The 9thCircuit rejected that claim, declaring the California initiative constitutional and enforceable against out-of-state companies. (In recent years the 9th Circuit has consistently rejected a series of dormant commerce clause-based challenges to numerous California environmental and animal welfare laws.)

Sackett v. Environmental Protection Agency, 8 F.4th 1075 (Aug. 16). If this case sounds familiar, it should: Sackett involves a long-running wetlands dispute between the federal government and an Idaho couple seeking to develop their property. The feds argue that a portion of the Sacketts' property constitutes wetlands under the Clean Water Act, and that the Sacketts were required to seek and obtain a permit under CWA Section 404 before developing their property. Previously, the 9th Circuit upheld the government's procedural argument, only to have the U.S. Supreme Court reverse in a 2012 decision. On remand and on the merits, the 9th Circuit this year ruled that the government's administrative proceedings properly found the Sacketts' property to contain wetlands. A 2022 return to the Supreme Court by the Sacketts seems quite possible.

Southwest Fair Housing Council v. Maricopa Domestic Water District, 9 F.4th 1177 (Aug.23). This "water justice" case involved an NGO's challenge to a local Arizona water district's policy requiring residents of public housing projects to pay deposits more than three times more than those paid by residents of non-public housing. The plaintiff claimed that policy was discriminatory and contravened the federal Fair Housing Act. Somewhat remarkably, the 9th Circuit rejected that argument, concluding that the district policy served legitimate business interests and that no equally effective but less discriminatory alternatives were shown to exist.

Association of Irritated Residents v. Environmental Protection Agency, 10 F.4th 937 (Aug.26). This citizen suit, brought under the federal Clean Air Act, challenged the Trump administration EPA's conditional approval of a proposed California plan to reduce ozone levels in the San Joaquin Valley. (The San Joaquin Valley suffers some of the poorest air quality in the entire U.S.) The Court of Appeals rejected the EPA's approval of the California plan as arbitrary and capricious, finding that the plan would result in only nominal ozone emission reductions. Moreover, opined the 9th Circuit, the CAA does not prohibit California's Enhanced Enforcement Activities Program, which in the Court of Appeals' view would substantially improve California's ozone reduction plan.

Center for Community Action v. Federal Aviation Administration, 2021 DJDAR 11864 (Nov.18). This National Environmental Policy Act case, involving the adequacy of the FAA's environmental analysis of an Amazon distribution center adjacent to the San Bernardino Airport, is unremarkable on its face. A divided 9th Circuit panel rejected an environmental group's NEPA challenge to the project, finding the FAA's environmental analysis legally adequate. But what's remarkable about the decision is the heated colloquy between the dissent -- authored by Judge Johnnie Rawlinson -- and the majority. In her dissent, Judge Rawlinson argued that the case "reeked of environmental racism," inasmuch as the area in which the project was proposed is (according to the EPA) an "extreme" non-attainment area for multiple air pollutants and populated primarily by people of color. Judge Rawlinson rhetorically asks: "Does anyone doubt that this Environmental Analysis would not see the light of day if this project were sited anywhere near the wealthy enclave where the multibillionaire owner of Amazon resides?" Perhaps unsurprisingly, the panel judges in the majority took umbrage at the dissent's pointed criticism; a concurring opinion attempted --without much success in my view -- to rebut the dissent's "environmental racism" claims. To my knowledge, this is the first time the term "environmental racism" has ever been used in a reported federal appellate opinion. Its invocation certainly produced judicial sparks and robust debate.

The dueling Center for Community Action opinions serve as a fitting, end-of-year bookend to the similarly impassioned and conflicting judicial views expressed in the 9th Circuit's Juliana case earlier this year.

December 21, 2021

What Roman Mars Can Learn About Con Law: 'A Jurisprudence of Doubt'

[Cross-posted from]

By Elizabeth Joh

On episode 59 of the podcast formerly known as What Trump Can Teach Us About Con Law, renamed What Roman Mars Can Learn About Con Law:   Supreme Court cases from Mississippi and Texas are challenging  long upheld precedents that established abortion rights. Reproductive rights, and many others, are not explicitly referenced in the Constitution, but are considered fundamental because of the presence of the word "liberty" in the 14th Amendment. Listen to the episode.

December 20, 2021

Top 10 Immigration Law Stories of 2021, Immigration Book of the Year

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

It is the end of a wild pandemic year.  And time for our annual Top 10 Immigration Law Stories.  As you might recall, President Donald Trump, who frequently made immigration news, topped the 2020 list.

The year has seen many changes.  Joe Biden became President.  President Trump, and his fervent dedication to a restrictive immigration agenda, now is in the rear-view mirror.  Despite repeated efforts by Democrats, any type of meaningful immigration reform failed in Congress.  Reminiscent of the old adage "three strikes and you're out," the Senate Parliamentarian on three occasions ruled out efforts to squeeze in immigration changes into budget reconciliations.

1.  President Biden Brings in a New Immigration Regime

In January, President Biden brought to Washington D.C. a new approach to immigration and immigration enforcement.  Nonetheless, a variety of Trump policies, such as the much-maligned "Remain in Mexico" policy, remained in effect.  Its survival led to an op/ed by Ruben Navarrette Jr. entitled "Trump Lost the Presidential Battle but Won the Immigration War?," which to many raised a very good question. 

The Biden administration also continued the Title 42 border closure justified by public health concerns, a move  that has been harshly criticized.  Former Yale Law Dean Harold Koh left the State Department and ripped President Biden's use of Trump-era Title 42.

Events on the United States' southern border almost immediately put the Biden administration on the defense.  On her first visit as Vice President to Guatemala, Kamala Harris expressed optimism about cooperation with the Guatemalan government on reducing migration to the United States but bluntly told the Guatemalans considering the journey:  "Do not come.  Do not come."  This blunt message provoked controversy and criticism.

With challenges from the left and right, the Biden administration has a tough row to hoe in formulating a coherent and effective immigration policy.

The Biden administration made important changes in the top officials making U.S. immigration policy decisions.  New Attorney General Merrick Garland has a very different perspective on immigration and immigrants than President Trump's first AG, Jeff Sessions.  Alejandro Mayorkas, the new Secretary of the Department of Homeland Security, is very different from John Kelly and Kirstjen M. Nielsen, DHS secretaries in the Trump administration.

2.  The Shocking Treatment of Haitian Asylum Seekers by the U.S. Government

In August, an earthquake devastated Haiti.  Thousands of Haitians fled the country.  The sight of Border Patrol officers on horseback chasing Haitians on the U.S./Mexico border was, to say the least, "bad optics."  It provoked controversy and a spirited defense from the Biden administration

Human Rights Watch condemned the treatment of Haitian migrants on the U.S./Mexico border.  This headline says it all:  "US: Treatment of Haitian Migrants Discriminatory -- Chased by Border Agents on Horseback; Returned to Danger in Haiti."

3.  The Afghan Refugee Crisis

A refugee crisis followed the U.S. military's withdrawal in August from Afghanistan and the almost immediate takeover by the Taliban.  The United States has a long and difficult relationship with this war-torn nation.  Many wondered how the nation might respond to Afghan refugees.

There have been many calls to help Afghan refugees. A number of governmental and nongovernmental (including faith-based) groups publicly offered assistance to the refugees.  Nonetheless, resettlement in the United States has been challenging.

ImmigrationProf posted regularly about the plight of Afghan refugeesOne of those posts highlights the complex immigration avenues in the United States -- including Special Immigrant Visas, refugee status, and asylum -- for persons fleeing Afghanistan.  "The tens of thousands of Afghan refugees who made it to the United States as part of a historic humanitarian evacuation are entering an extraordinary system with very different benefits."

4.  Immigration in the Supreme Court

In the 2020 Term, the Supreme Court decided five immigration cases.  The U.S. government prevailed in four of the five cases, an 80 percent success rate.  This rate was higher than that seen in recent Terms. 

There were no blockbusters among the five immigration decisions -- nothing like the DACA decision in 2020.  The decisions primarily focused on interpreting the complexities of the Immigration and Nationality Act. 

Although the U.S. government prevailed in all but one case, there were no sweeping statements about the power of the U.S. government over immigration, such as the statements in the 2020 expedited removal case (Department of Homeland Security v. Thuraissigiam) and its ringing endorsement of the plenary power doctrine.  

There continued to be a steady stream of immigration rulings in the lower courts, especially as the Biden administration sought to walk back Trump era policies.  Two lower court decisions stand out.   

In one case, a U.S. District Court found  "strong and disconcerting evidence" of the racist origins of 8 U.S.C. § 1326, which criminalizes unlawful re-entry into the United States.  Judge Michael H. Simon's opinion carefully reviewed the historical record of the racial animus behind Section 1326.

In another case, Chief Judge Miranda M. Du of the U.S. District Court, District of Nevada ruled that:

"Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent . . .  [T]he Court reviews whether the government has shown that Section 1326 would have been enacted absent discriminatory intent. Because the government fails to so demonstrate, the Court finds its burden has not been met and that, consequently, Section 1326 violates the Equal Protection Clause of the Fifth Amendment."

It is rare for a law to be found unconstitutional.  It is even rarer for an immigration law to be found unconstitutional.  Will these two rulings start a trend? 

5.  DOJ Reverses Course and Agrees to Recognize Immigration Judges Union

Earlier this mnnth, the Department of Justice's Executive Office for Immigration Review agreed to a settlement with the National Association of Immigration Judges (NAIJ) to again recognize NAIJ as the exclusive representative and collective bargaining agent for the nation's immigration judges.  The settlement put an end to the Trump administration's effort to end the union's representation of the immigration judges.

Before the settlement, the Biden administration has been accused of "doubling down" on the Trump administration's efforts to de-certify the immigration judges union.

6.  Economist with Major Immigration Contributions Wins Nobel Prize

UC Berkeley economist David Card, who studied the effects of the Mariel Boatlift on the Miami labor market, won the Nobel PrizeCard wrote the 1990 article: The Impact of the Mariel Boatlift on the Miami Labor MarketIn that article

"Card studied the effect that the large influx of Cuban workers (125,000 arrived between May and September of 1980) had on the Miami labor market. He found that the labor force grew by 7%, with a greater increase in less-skilled occupations and industries. But he found no effect on the wages or unemployment rates of non-Cuban workers nor non-boatlift Cuban workers. There was, in fact, 'rapid absorption' of the Mariel immigrants into the Miami


Card's cutting-edge scholarship is a briefly summarized here.

7.  Death on the Border Continues

Sadly, the regular deaths along the U.S./Mexico border are not breaking news.  But they are a reality of modern immigration enforcement along the border. 

Migrants die on a regular basis and the death toll has risen over the years.  ImmigrationProf regularly reports on the deaths to remind readers of the deadly impacts of U.S. immigration enforcement.  Shouldn't the nation be considering alternative enforcement strategies that do not result in deaths?

8.  The Complicated Legacy of 9/11:  20 Years After

2021 marked the 20 year anniversary of the tragic events of  September 11, 2001.  News reports reminded us of the implications of that fateful day.  Importantly, serious discussions of immigration reform designed to remedy the harsh edges of the 1996 reforms, ended with that tragic event.

In "How 9/11 stalled immigration reform - and inspired a new generation of activists," Meena Venkataramanan for the Los Angeles Times offers an interesting -- and more positive -- take on a collateral impact of September 11, 2001:

"The Sept. 11 attacks upended U.S. immigration policy, linking it for the first time to the nation's anti-terrorism strategy and paving the way for two decades of restrictive laws. But it also gave rise to a new kind of immigrant rights movement led by young people . . . . "

The immigrant rights movement has continued to grow and is one of the amazing social movements of the 21st century and hold the promise of immigration reform.

9.  Census 2020

The Trump administration's proposed citizenship question, which it abandoned after a Supreme Court ruling against the administration, on Census 2020 provoked controversy and concern with an undercount.  Although some noncitizens may have been too fearful to respond to the Census, The Census revealed some interesting thingsCNN reads the data as follows:  "America is more diverse and more multiracial than ever before, according to new 2020 Census data . . . ." (bold added).

10.  10 Most-Cited Immigration Law Faculty in the U.S., 2016-2020  

This, I believe, was the first Leiter Law Report citation court of immigration scholars.  "Based on the latest Sisk data, here are the ten most-cited law faculty working on immigration law . . . in the U.S. for the period 2016-2020 (inclusive) . . . ."



1.  A Surprising Immigration Factoid (At Least to Me)

I would not have guessed that, at least for a moment, Honduras was the largest source of migrants to the United StatesConditions in Honduras have fueled greater migration to the United States so that the number of migrants from Honduras currently exceed those from El Salvador, Guatemala, and Mexico. 

2.  Belarus Uses a Border Crisis as a Political Weapon

Sadly, we cannot make this stuff up.  

In November,  CNN reported that thousands of people trapped on the border between Poland and Belarus were being stopped from crossing the border into Poland.  The European Union, the United States and NATO accused Belarusian leader Alexander Lukashenko of manufacturing the migrant crisis as retribution for sanctions imposed on Belarus over human rights abuses. Stranded migrants have faced "catastrophic" conditions in freezing forests and makeshift camps.

3.  DACA Recipient Heads Georgetown Law Journal

Here is a positive immigration storyDeferred Action for Childhood Arrivals (DACA) recipient Agnes Lee, was named the editor-in-chief of the Georgetown Law Journal.  NBC News reported that.  "Growing up in Los Angeles, [Lee] saw many in her community incarcerated for petty drug charges. Several of her friends' family members were deported. . . . [She] learned from her parents to fear the police and remain quiet . . . . 'The best thing you could do with the law was to stay away from it,' she said."

4.  Immigrant of the Day Leads Milwaukee Bucks to NBA Championship

Two time Immigrant of the Day, National Basketball Association superstar Giannis Antetokounmpo (Milwaukee Bucks) became an NBA champion!

5.  Law Faculty News

RIP Cruz Reynoso, first Latino Justice on California Supreme Court.  A Professor Emeritus at UC Davis, Justice Reynoso devoted his life to defending the rights of immigrants and other vulnerable communities.  In an amazing career, Reynoso was appointed by President Carter to serve on the Congressional  Select Commission on Immigrant and Refugee Policy.  President Clinton appointed Cruz to be the vice-chair of the U.S. Commission of Civil Rights and, in 2000, gave Cruz the Presidential Medal of Freedom for his social justice work.

Professor (and former Dean) John Eastman has long been known for taking dubious immigration positions, including questioning Kamala Harris eligibility to be President,  arguing that birthright citizenship was not required by the U.S. Constitution, and more.  In 2021, Eastman entered the national spotlight in a big way.  He spoke to Trump supporters just before they stormed the U.S. Capitol.  The mob included many white supremacists.  The New York Times reported that Eastman was in the Oval Office with President Donald Trump the day before the Capitol violence, arguing that Vice President Mike Pence had the power to block certification of Joe Biden's Electoral College victory.  Later, CNN  published a copy of the "Eastman Memo" advising President Trump's legal team on a strategy to overturn the election results. 

Eastman retired from his law professor position at Chapman in the middle of the academic year.

Eastman has filed suit to protect his phone records from discovery by Congress.  He also is the subject of a new complaint with the California State Bar signed by nearly 1,000 lawyers.  The complaint alleges Eastman was working in concert with Rudy Giuliani and Jeffrey Clark to overturn the 2020 election results. Attorneys who signed the complaint include Erwin Chemerinsky, Laurence Tribe and two former presidents of the American Bar Association.


Book of the Year

The ImmigrationProf Book of the Year is Driving While Brown:  Sheriff Joe Arpaio versus the Latino Resistance by Terry Greene Sterling & Jude Joffe-Block

Remember Sheriff Joe?  The book describes his immigration reign of terror on Latina/os in Arizona.   Until he lost a re-election bid in 2016, Sheriff Joe gave me an almost daily story for this blog.    The new book brings back memories.

The book specifically tells the story of

"How Latino activists brought down powerful Arizona sheriff Joe Arpaio

Journalists Terry Greene Sterling and Jude Joffe-Block spent years chronicling the human consequences of Sheriff Joe Arpaio's relentless immigration enforcement in Maricopa County, Arizona. In Driving While Brown, they tell the tale of two opposing movements that redefined Arizona's political landscape-the restrictionist cause embraced by Arpaio and the Latino-led resistance that rose up against it."

Jude Joffe-Block guest blogged about the book on this blog.

Honorable Mentions

These two great books are important scholarly contributions.

Mae Ngai, The Chinese Question: The Gold Rushes and Global Politics (2021).  She has been speaking widely on this important book.

Sahar F. Aziz, The Racial Muslim: When Racism Quashes Religious Freedom (2021).  Here is the University of California Press description of the book:

"Why does a country with religious liberty enmeshed in its legal and social structures produce such overt prejudice and discrimination against Muslims? Sahar Aziz's groundbreaking book demonstrates how race and religion intersect to create what she calls The Racial Muslim. Comparing discrimination against immigrant Muslims with that of Jews, Catholics, Mormons, and African American Muslims during the twentieth century, Aziz explores the gap between America's aspiration for and fulfillment of religious freedom. With America's demographics rapidly changing from a majority white Protestant nation to a multiracial, multi-religious society, this book is an essential read for understanding how our past continues to shape our present-to the detriment of our nation's future."


December 6, 2021

How an Outdated Environmental Law is Sabotaging California's New Housing Rules

[Cross-posted from the San Francisco Chronicle]

By Christopher S. Elmendorf and Tim Duncheon

In October, outrage erupted when San Francisco’s Board of Supervisors voted down a proposal to build nearly 500 new homes — many affordable — on a downtown site at 469 Stevenson St. now being used for valet parking.

Of course, these same supervisors reject housing developments all the time. And yet this denial was especially brazen.

It came short on the heels of a major Court of Appeal decision upholding the state’s powerful Housing Accountability Act, which requires cities to approve housing projects if a reasonable person could deem the project compliant with applicable standards. Yet the supervisors who voted “no” didn’t even try to argue that the project was noncompliant.

Instead, they attempted to evade the HAA by using a different law, the California Environmental Quality Act.

Technically, the board voted to reverse the city planning commission’s certification of the project’s environmental impact report—a report that took over two years to complete and certify in the first place. Board members demanded additional environmental studies, even as they openly admitted that their objections to the project — too big, not enough affordable units, risk of gentrification — had nothing to do with the environment. Oakland and Sonoma have also used similar CEQA maneuvers to hold up housing projects, too, albeit to much less fanfare.

The immediate question this raises is whether cities will be allowed to keep using CEQA to launder denials of housing that state law protects. Can bad-faith cities keep getting away with demanding round after round of ever more elaborate environmental studies, until developers cry uncle and walk away?

But there’s also a deeper question. Why is a housing project that a city can’t legally deny — because it is protected by state law — required to undergo an exhaustive environmental study in the first place?

CEQA requires local governments to carefully consider environmental concerns whenever they make discretionary decisions. For example, it requires cities to do environmental studies when they change their zoning ordinances.

San Francisco’s city charter subjects all development projects to “discretionary review,” making them all potentially subject to CEQA, even if they conform to zoning. But that doesn’t mean every single project in San Francisco is put through the wringer of a multiyear environmental impact report. A report is required only if the development may have a “significant impact” on the environment.

But significant relative to what?

The developer of the Stevenson Street project had to complete an environmental impact report because San Francisco’s Planning Department concluded (after its own yearlong, 342-page study) that the building might have a significant local environmental impact in the form of shadows, wind, or (during construction) noise and air pollution, relative to leaving the site as a parking lot.

This is nuts.

After all, this was a proposal to put dense housing a block from a BART station, in a designated “priority development area” under the region’s climate plan. Few projects could be more environmentally friendly.

Also, critically, California law doesn’t allow the city to retain the site as a parking lot once a developer applies to build housing there.

There was no reason to require an environmental impact report for the Stevenson Street project unless it would have a significant larger impact than any other project of the size that state law authorizes and encourages developers to build on the site. If the impact of the 500-home building the developer proposed would be about the same as the impact of any other 500-home building on the site, then requiring the developer to prepare an environmental impact report was a colossal waste of time (two years and counting) and money. In the midst of a worsening housing crisis.

It doesn’t have to be like this.

Under the federal statute on which CEQA was modeled, environmental review is limited to effects that are proximately caused by a government agency’s discretionary decisions. Because California law prohibits San Francisco from downsizing the Stevenson Street project, the project’s size isn’t caused by the city’s permitting discretion. And so the Stevenson Street project wouldn’t require environmental analysis.

Or consider New York, where if a developer proposes a 10-story development on a site where the zoning currently allows a five-story building, the effect of the larger project is analyzed relative to a smaller one the zoning allows.

The bottom line is that there’s an urgent need for fresh thinking about how to fit CEQA and the HAA together in a sensible way. Ideally, California’s Legislature would do it, with clarifying amendments to one or both laws. But achieving meaningful CEQA reform through the Legislature has proven to be a Sisyphean task due to the powerful interest groups — first and foremost the building trades unions — that have mastered the art of using CEQA litigation to hold developers hostage until the unions secure a side-deal, thereby making housing harder to build — and more expensive when it is built.

Action on this issue will require a full-court press by other actors: the courts, the Attorney General, and most importantly Gov. Newsom, who is riding high after crushing the recall attempt.

The governor has tools at his disposal to get the job done. He oversees the Department of Housing and Community Development, which is tasked with enforcing the HAA and other state housing laws. He also appoints the directors of the Natural Resources Agency and the Office of Planning and Research, who in turn issue the official CEQA Guidelines, which spell out the nitty-gritty of environmental review.

The governor’s housing department has launched an investigation of the 469 Stevenson St. debacle. A few days before Thanksgiving, the department delivered a strongly worded letter to San Francisco. This letter suggested that bad faith demands for superfluous environmental studies may violate the HAA. This interpretation — which is plausible but not open-and-shut — would greatly curtail CEQA-laundered project denials. And it’s an interpretation that courts are more likely to accept now that the executive branch of state government endorses it.

The letter is great, but it’s just a start.

CEQA guidelines must be revisited, too. They don’t even mention the HAA. Worse, they arguably call for full environmental impact reports even when a city has limited discretion over a project.

Stevenson St. is a case in point.

This is no way to run the show in a world where, as the HAA puts it, the lack of abundant infill housing is “undermining [California’s] environmental and climate objectives” by causing “urban sprawl, excessive commuting, and air quality deterioration.”

The housing shortage gets worse with each passing month that is wasted on irrelevant environmental review.

One of Newsom’s first official acts after trouncing the recall was to sign a spate of new housing bills. Next in line for the governor’s signature should be an executive order directing a revision of the CEQA Guidelines in light of the HAA. There’s no time to waste.

Christopher S. Elmendorf is a professor of law at UC Davis. Tim Duncheon is a lawyer based in San Francisco. Portions of this commentary were published on the State and Local Government Law Blog.

November 15, 2021

Op-Ed: Did the Supreme Court Tip its Hand on the Blockbuster Gun Case it’s Hearing Wednesday?

[Cross-posted from Los Angeles Times]

By Aaron Tang

For years, cities across the country have limited who may carry a gun in public. The Supreme Court will soon decide whether these limits violate the 2nd Amendment. The effect could be staggering — the difference between a few hundred guns and hundreds of thousands of guns on the streets of Los Angeles, New York City or Washington.

With stakes so high, commentators have naturally speculated about the outcome. Given the court’s conservative supermajority, many expect the court to dramatically expand the right to carry firearms in public.

Quietly, however — in a rare action taken through the court’s docketing procedures — some of the court’s conservative justices may have tipped their hand. What they’ve revealed is a fact-sensitive approach to the case that should give gun safety proponents reason for cautious optimism.

Start with a bit of Supreme Court 101. When a party that has lost in a lower court wishes to obtain the Supreme Court’s review, it files a petition for a “writ of certiorari.” The most important page of this petition is the first one, which sets forth the question presented by the case. As the court’s own rules explain, “Only the questions set out in the petition, or fairly included therein, will be considered by the Court.” The “question presented” thus dictates the scope of the court’s analysis.

It takes four justices to vote in favor of granting a “cert” petition. And in nearly every granted case, the justices vote to accept, verbatim, the question presented in the petition. (Occasionally the justices will limit their review to one of multiple questions in a petition, or add a threshold question to clarify the court’s power to hear the case. )

In the cases the court initially decided to hear this term, the justices accepted the exact wording of a question presented in all the cert petitions — all, that is, except the landmark gun rights case, New York State Rifle & Pistol Assn. vs. Bruen. In this case, they took the significant step of rewriting the question presented, and thus changed the trajectory of the case.

Rewriting a question may seem trivial. It is not. Last term, out of 58 cases, the Supreme Court rewrote the question presented in just one. Tellingly, the justices then decided that case entirely on the basis of the revised question, holding that an earlier decision by the court does not apply retroactively. The same was true in the year I clerked at the court: The justices rewrote just one question and proceeded to decide that case precisely on the new grounds.

In this term’s gun case, the revision seems equally crucial.

Current New York law forbids individuals to carry a gun in public unless they can demonstrate a “special need” for self-defense. In challenging this law, the original cert petition presented this question: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

To gun rights activists, the answer is an obvious no because all law-abiding citizens should have the right to carry a gun in public, regardless of whether they have a special need. And if the conservative justices had strongly agreed, the petition would probably have been quickly accepted as written.

But that’s not what happened. As the court’s docket shows, the justices first discussed the cert petition at a private conference in March, before debating it again at two additional conferences in April. In each conference, however, the conservative justices failed to produce the four votes needed to grant review. (None of the liberal justices are likely to have voted to grant the case because they almost certainly agreed with the lower court ruling upholding New York’s law).

Then, at another conference held at the end of April, the justices voted to grant the case.

What changed? The record indicates just one thing: The court rewrote the question presented, limiting it to ask “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

The rewritten question focuses the court’s review first to the matter of concealed-carry, rather than open-carry, licenses — a sensible move because that is the type of license for which the petitioners originally applied.

The second change is more important. Rather than asking about the right of all law-abiding citizens to carry guns in public, the court’s rewritten question focuses on just the original two petitioners — individuals who were denied special need licenses by New York. In doing so, the justices have made clear that the specific, factual circumstances surrounding the applications will be crucial to their analysis. (Otherwise, the original question presented would have sufficed.)

What, then, are the specifics of the applications? One of the petitioners, Robert Nash, explained in his application that he needed a concealed-carry license because of a “recent string of robberies in the area” around his home, including a robbery that occurred on his street just days before he filed for the license. Yet the New York licensing authority still rejected his application. In contrast, the other petitioner, Brandon Koch, openly admitted in his application that he did “not face any special or unique danger to his life.”

By training the question presented on these facts, the court hints at an outcome that both sides in the gun debate should be able to live with.

State laws that condition the right to public carry on a demonstrated need for self-defense could be constitutional, in keeping with a lengthy historical tradition of similar laws. So New York would be free to deny licenses to applicants like Koch who lack a special need, thus substantially reducing the number of guns on the streets. But states may not utilize a special need requirement as a de facto ban on all public carry. Doing so would infringe the 2nd Amendment right of those who face real and particularized dangers — such as Nash.

The Supreme Court has begun its 2021-22 term with its lowest approval rating in decades. A fact-sensitive, centrist ruling on gun rights would go far toward bolstering its public legitimacy.