Reflections On Six Months As A City Attorney

Six months and a week ago, I started a new job as a senior assistant city attorney at the City ad County of Denver in the civil litigation section. We handle lawsuits brought against the City and County of Denver, and against City employees where the lawsuit arises from the employee's official duties.

The job

Most people who work in my section have backgrounds either in criminal case litigation, or in private sector insurance defense of personal injury cases. I was one of the fairly uncommon applicants who had significant prior experience in civil litigation with government entities. One of my main responsibilities at my first job in Colorado, in Grand Junction, was defending county governments all over Western Colorado from lawsuits, which is more or less exactly what I do now defending the City and County of Denver. In my subsequent private private of law, I had a low volume, but steady trickle of cases where I represented private parties in lawsuits against the government, in addition to having broad civil litigation experience making up about half of my practice in a variety of other areas in both state courts and federal courts. This has allowed me to hit the ground running, compared to many of my peers.

Fortunately, our office operates with a very high level of professionalism, and my co-workers are good to work for.

My current case load (which varies from lawyer to lawyer in my section based upon the lawyer's experience and aptitudes) is about 60% civil rights litigation (mostly, but not entirely, involving actions of the police and jail guards), about 20% plain vanilla personal injury litigation like motor vehicle accidents that is similar to what private insurance defense lawyers do but with a governmental liability twist, and about 20% litigating subpoenas and public record requests where there are disputes that go beyond what can be resolved by records custodians out of court.

Different sections of the City attorney's office handle employee discipline and employment related litigation, enforcement of ordinance violations, child protective proceedings in cases where there are allegations of abuse and neglect, and transactional/corporate counsel type work for matters like negotiating and monitoring compliance with contracts between the City and its vendors, drafting ordinances, lobbying the state and federal governments, and managing conflicts that arise between different city agencies and officials.

There are also some governmental agencies which many people think are part of the City and County of Denver, but which are not: the Denver Public Schools, the Denver District Attorney, Denver Health (the county's public hospital), the Denver Housing Authority, the Regional Transportation District (RTD), the Downtown Development Authority, the Denver District Court, the Denver Probate Court, the Denver Juvenile Court, and probably a few others that I've failed to mention. 

The Denver County Court is a unique hybrid court that combined the roles of the limited jurisdiction state government's county court found in other Colorado counties, and the role of a municipal court for the City and County of Denver where municipal ordinance violations are prosecuted.

The biggest change for me has been transitioning from being self-employed for two decades to being a salaried W-2 employee. 

Mostly, this is for the better and was an important reason to take this job. Instead of having to invoice clients and pester them to pay their bills, or to wait until contingent fee cases are converted into money at the end of a case, money just magically appears in by bank account without me even asking for every two weeks. I get paid vacations and sick days! I get my health insurance through an employer plan, a switch I made shortly before big cuts to Affordable Care Act subsidies for self-employed people seeking health insurance took effect. If I continue to work for the City for five years, I get a defined benefit pension. I have a public sector defined contribution plan to which I can contribute about 20% of my income. I can pay for my parking expenses with pre-tax dollars. I don't have to pay anything out of pocket to get IT support. My tax returns will get a lot less complicated starting in 2027 (I had some residual self-employment work and income wrapping up my private practice in early 2026). I don't have to deal with fixing broken copying machines, building maintenance, hiring employees, tax withholding for employees, office security, arranging telephone and internet service, balancing an attorney's trust account, and so on. I don't have to spend large chunks of time marketing and deciding which clients to sign up. My work is mostly (not 100%) confined to 9-5 on business days.

I also get to work in a place with good systems in place, with adequate administrative support, with competent fellow attorneys who can cover for you while you are sick or on vacation, and top quality legal research and office related software packages.

We still have to pay close attention to potential conflicts of interest in new cases (and conflicts of interest that can emerge during cases), so we can send conflicted cases to outside counsel. But, unlike my fairly brief stint in a multi-state law firm with about a thousand lawyers, I don't have to spend half an hour to forty-five minutes every day (like every single other lawyer in that entire law firm) screening new cases brought into the firm for conflicts of interest.

Best of all, except for particular phases of the small share of cases where there is a prospect of receiving an attorneys' fee award, I don't have to track every tenth of an hour of every single working day, since all of the work we do is for the same client and is very unlikely to be the subject of attorneys' fee litigation.

Insights into law and policy and legal practice

Most people, most of the time, are outsiders to government, sometimes spinning conspiratorial narratives about what they think happens behind the scenes in the criminal justice system, and in government more generally. In my subpoena and records request practice, and in civil rights cases, I'm on the opposite side of the fence, with more or less complete access to the full "behind the scenes" story.

I almost always know more about what actually happened, sometimes legally relevant and sometimes not, than the other lawyers in the case and that the judge. It is a rare case where I don't know more or less exactly what happened in all legally relevant ways within a month or two of receiving it, and often within a couple of weeks.

I have nearly full access to all relevant records and a full ability to interview the government employees involved in a context where they are more quickly forthcoming about what I want to know, than in the formal discovery process.

The truth isn't nearly as nefarious as conspiracy theorists and a plurality of civil rights lawyers would have you believe.

This isn't to say that law enforcement officers or jail guards never make mistakes that hurt someone, sometimes in ways that give rise to legal liability, and sometimes in ways that don't.

A significant portion of my job is facilitating the payment of reasonable settlements to people who have been legitimately wronged by the government or government officials. Sometimes a city employee is clearly at fault in a motor vehicle accident. Sometimes a law enforcement officer does cross the line and is in the wrong. The City pays out millions of dollars a year in settlements and judgments as a result.

Most settlement payments err on the side of being generous, in order to avoid the risk that a jury won't correctly evaluate liability and damages in a case and will award an excessive amount. 

A significant minority of jury awards reach the wrong result on liability or damages (sometimes for the government and sometimes against it), often (as post-verdict juror interviews reveal) for reasons that shouldn't be legally relevant or reflect misunderstandings that neither side's lawyers even contemplated were possible. Most of the time, juries reach verdicts that are close to being right, but not all of the time by any means (even when the lawyers and judges are doing their jobs correctly).

My rule of thumb (based upon the available academic literature on the topic, and confirmed by my personal experience) is that in a best case scenario where the lawyers and judges in a case are doing their jobs right and the law dictates a clear answer, is that the likelihood that a jury will reach the wrong conclusion is about 10%. 

The odds that the jury will reach the wrong conclusion rockets up, of course, when one or the other side's lawyers engaged in misconduct, or the judge makes a significant mistake (not always appealable), or there is litigation misconduct by a party in the case such as destroying or fabricating evidence or lying under oath (often not known to the lawyers). The most common problems, however, are lawyer incompetence or a bad ruling from a trial judge or sincere but incorrect witness memories about what happened, and not outright litigation misconduct.

Some kinds of suspicions about what is happening behind the scenes are more often correct than others. For example, I know (from having access to what is in them in cases where I move to quash subpoenas) that the vast majority of internal affairs files sought by defense attorneys in criminal cases that are withheld from them, truly aren't material to the outcome of those cases, even at the margins on credibility issues. The kind of conduct that law enforcement agencies, and governments more generally, care about for purposes of internal employee discipline, are only vaguely similar to the kinds of conduct that give rise to legal liability, or would be relevant in a criminal case in which an officer was involved in some way and is a potential witness.

Timelines

Different kinds of cases have different timelines. Records request cases and subpoenas are typically litigated over a period a week to a few months. Ordinary personal injury cases in which a defendant just happens to be a governmental entity, tend to be fairly simple cases that are resolved in a year or two once a case if filed, and are often settled sooner than that. 

Civil rights cases, and personal injury cases which are really civil rights cases in disguise, take one of two typical courses. Many of them are resolved very early on in initial dispositive motion practice and are often dismissed within a few months to a year with complete dismissals on the merits (or for failure to prosecute by a pro se party, i.e. a Plaintiff bringing suit without a lawyer). The civil rights cases that aren't resolved that way can take much longer, in part because they are often prosecuted in federal court which is much slower than state court, in part because interlocutory appeals (i.e. appeals brought prior to a final trial and verdict) are common in civil rights cases, and in part because these cases are sometimes more complex and require lengthy pre-trial discovery and motion practice. I have one case that will probably go to trial soon about eight years after the underlying incident (that involved a handful of people over the course of less than two hours in one place)  took place.

If everyone knew what I know as a governmental defense attorney know within two or three months of a case being filed, these cases could be resolved in six months and would be resolved more accurately than they are in jury trials. But, of course, part of the reason that I can secure this information so quickly is because the people from whom I receive the information know that what they share with me won't be used against them in court. Still, this observation does suggest that there is plenty of room for improvement in the process.

Also, a lot of the delay in civil litigation is a function of simply not having enough judges to keep their case loads small enough to allow them to make prompt rulings, and an overall litigation system that has adapted to that reality.

The quality of plaintiff's litigation

Another thing that my job gives me is a broad overview of the quality of the legal work done by the people who sue the City.

About half the lawsuits brought against the City are brought by pro se parties, or by lawyers whose legal work falls below the standard of care that should be expected from a reasonable competent lawyer. 

Indeed, the best pro se parties (maybe the top 5-10% of them) are doing a better job of litigating their cases than the worst lawyers that we see (although no pro se parties do an excellent job). There are a few lawyers in the Plaintiff's bar who are so incompetent that I am amazed that they passed the bar exam, although even they have basic literacy and some understanding of the process. But there are plenty of pro se parties whose literacy and understanding of the process is below that of an average high school student, who would benefit from representation by even an only marginally competent lawyer.

One of the better arguments for a "civil Gideon" system in which indigent people would routinely be provided access to lawyers by the state, the way that indigent criminal defends are, is that it would make the delays and confusions caused by incompetent pro se litigants largely go away making the whole legal system work much more efficiently.

Cases brought by incompetent litigants overwhelming get dismissed early on, or settled for amounts far less than a competent lawyer could secure.

Incompetent litigants tend to be particularly weak at investigating a case and gathering facts to support it, and in understanding at a more than superficial level the relevant substantive and procedural legal requirements for proving a case of governmental liability. Now and then, they do the right thing despite themselves, however.

Of course, part of the failure rate among these litigants is an inability to accurately judge if they have a legally meritorious case. I have definitely seen cases that were winnable or could have secured a larger settlement, that don't because they are brought by incompetent litigants. But probably 80%-90% of the cases brought by incompetent litigants wouldn't have been brought at all by competent lawyers, who could have identified the weakness in those cases at the outset and not filed suit. 

When I was in private practice, I probably turned away two or three potential clients a week, often potential clients who had heart wrenching stories of misfortune. But those potential clients either didn't have cases for which the legal system had a remedy, or had cases where the likely outcome of  their cases with competent legal representation would provide them with less economic benefit than the cost of competent legal representation, and would have greatly disrupted their personal lives and eaten up huge amounts of their personal time.

And, by the way, incompetence by lawyers isn't restricted to sole practitioners with little experience. I've seen multiple cases of grossly incompetent litigation from medium to large plaintiff's law firms (some of which are household names due to their advertising or due to prominent cases that they have litigated) by lawyers with significant experience.

This isn't to say that all litigants against the City are incompetent. About half of lawsuits against the City are brought by lawyers whose work is at least up to the standard of a reasonable competent lawyer, and a minority but good share of litigants against the city are represented by lawyers whose work represents the best practices in this work, are highly competent, and have screened potential clients in such a manner that they have chosen to represent plaintiffs with meritorious cases.

At least one case that I have handled so far involved a plaintiff who was represented by two successive incompetent lawyers, only to have the case pass to a third, highly competent lawyer that salvaged the case with some smart litigation decisions and was able to secure a settlement much higher than what the previous incompetent lawyers came close to reaching.

Sadly, there is very little that a person thinking about bringing a lawsuit can do to determine if their lawyer is litigating competently or not. That's why we have a bar exam in an attempt to impose at least some minimum standards, but this gatekeeping isn't perfect.

Admission to the bar allows you as a lawyer to handle almost any kind of case (patent law is an exception, and some states set a higher standard to determine if a lawyer is allowed to represent defendants in death penalty cases), subject only to their own self-determination about their competence.

But while being admitted to the bar usually means that a lawyer meets basic standards of literacy and can find their way to the courthouse, with a vague understanding of how the process works, the vast majority of lawyers (I'm an extreme outlier in this regard), have a far more specialized legal practice and predominantly handle a fairly narrow kind of legal work.

Probably a majority of lawyers don't litigate any civil or criminal cases on a regular basis, and instead do transactional work, legal compliance work, or provide counsel to senior corporate officials in their day to day activities.

It is rare for a lawyer to represent both plaintiffs and defendants in personal injury work. It is rare for divorce lawyers or real estate lawyers to handle personal injury or civil rights cases. It is rare for commercial litigators to litigate personal injury cases. It is rare for probate lawyers to do personal injury or civil rights litigation. It happens. I'm an example of that. But it is rare.

Unlike physicians, whose regulators have imposed both a general threshold professional qualification to become an M.D., and an additional professional qualification to practice in a particular medical specialty, the legal profession has almost no secondary level of professional qualification to practice in a particular legal specialty, like personal injury litigation, or civil rights litigation.

Most specialist legal practitioners do develop special expertise in the area where they practice, from working as a junior lawyer in a firm that has that kind of practice, from taking continuing legal education classes in that field, from researching the law and procedure in their own cases, and from the school of hard knocks. But it isn't systemic or uniform among specialist legal practitioners who often have significant gaps in their knowledge of the best practices for handling cases in their specialty.

This can be a particular problem in civil rights litigation where the law is more complicated than in many other areas of law, and where firm sizes tend to be small, so that many practitioners have never worked as junior lawyers under seasoned senior civil rights lawyers to learn the ropes. A fair number of lawyers with this kind of practice went to law school because of, and are driven by, a strong commitment to social justice, but couldn't find an employer in a field relevant to their objectives out of law school. So, they never received the kind of mentorship that they needed to become competent in their field as a result and are prone to making big picture conceptual mistakes and to bad legal judgment that hasn't been honed by more seasoned practitioners.

Some Quick, Ill Developed, Political Ideas

In defense of the deep state

The "deep state" is valuable and good, not a conspiratorial anti-democratic force. It is the bureaucratic manifestation of the rule of law.

We say we live in a "democracy" but that's an oversimplification. Obeying the law is not a matter up for popular vote. When we say we are a democracy what we really mean is that changes in the law must be made democratically. Not even the President is allowed to deviate from the law, which the President is sworn to faithfully execute. The President, wearing a different hat, can participate in the legislative process. But the bureaucratic organization that is the state can and normatively should push back against a President who tries to deviate from the way that the law mandates that the organization should behave.

Fiscal federalism

Trump 2.0 has illustrated the perils of relying too heavily on the federal budgetary process to spend funds for public purposes. So have many past government shutdowns.

Of course, dysfunction in the federal budgetary process leaves undisturbed public functions funded and operated at the state and local level with state and local funding. Most law enforcement comes from state and local law enforcement, most court cases (criminal and civil) are handled in the state courts, most K-12 and higher education funding is state and local, most roads and bridges are maintained at the state and local level, state and local law and funding keeps the water running, the sewers flowing, clears away trash from homes and businesses, and regulates the construction industry and real estate development for the most part.

We've seen what happens when this falls apart now. Because Medicaid and VA Health Care are federally funded and don't even had dedicated federal tax funding, they can be undermined quickly when the federal budgetary process goes astray and also equalize services between poor states and rich states. A simple federal tax law change can undermine ACA individual health insurance marketplace subsidies. K-12 education relies heavily on federal funding for special education (i.e. educating the disabled) and for schools in low income areas (which also equalizes situations between poor states and rich states). Higher education relies upon federal funding for grants for low income students, higher educational institutions for military officers and the deaf, student loan financing, and research grants. Disaster relief is heavily federally funded and leaves havoc unchecked when that is suspended. Disease control and weather prediction and monitoring are also heavily federally funded and are screwed up when this changes.

While we couldn't fund the military or the national debt at the state and local level, we could have a system where more health care and education spending is state and local. This would reduce federal influence on how those industries run and remove those industries from the whims of the federal budget process to a great extent, but would also lead to weaker subsidies of poor states and disproportionately worse services in poor states and would subject those services to greater state and local political influence.

After 9-11 we federalized airport security creating the TSA. Today, we see the political price of that as a federal budgetary process fight unrelated to the TSA itself disrupts airport service. Early in Trump 2.0 we saw what happened to FAA air traffic control as a result of exposure to the Trump 2.0 administration and the federal budgetary process.

So far, Social Security is only suffering deficiencies in administrative processing of disability claims for the most part, because it has its own dedicated funding source that insulates it from the federal budgetary process as an entitlement.

But national parks and major transportation ad energy infrastructure programs have seen a twirl.

Could we build a more robust system without facing too many costs?

Brainstorming Possible Public Law Reforms

There are important gaps in our public law system:

* If we are to reject taxpayer standing, voter standing, and citizen standing, we need to empower someone to enforce violations of the law that harm the general public, but not any specific person differently from any other, like many forms of public corruption.

* Judges should have the power to remove government officials who defy court orders and commit serious breaches of the public trust from office, certainly, officials who are not elected officials.

* There needs to be a parallel to 42 U.S.C. § 1983 for federal officials and agents (i.e. people who act under color of federal law) that is more robust than the federal common law Bivens remedy, which doesn't cover all federal officials or all federal rights.

* The unitary executive theory adopted by the U.S. Supreme Court is just a pure political trick, with no historical basis. INS v. Chadha (1983), in which the U.S. Supreme Court held that legislative vetos in duly enacted laws were unconstitutional was also a bad decision.

* The gutting of the insurrection clause of the 14th Amendment by SCOTUS was a horrible legal decision not supported by any fair reading of the document.

* The grant of immunity from criminal prosecution for all official acts of the President was a very bad idea. Granting both civil immunity and criminal immunity should be a matter of common law or statutory law that can be changed by Congress, not a matter of constitutional law.

* Granting unfettered pardon power to the President now looks like it was a bad idea on the part of the Founders. Notably, a great many U.S. states do not afford the same power to their Governors.

* Requiring a two-thirds majority of both Houses of Congress to override a Presidential veto greatly upsets the proper balance of power between Congress and the President. Let the President veto legislation that unwittingly contains a bad provision which the President noticed but Congress did not. But let them reaffirm and override it by a simple majority of both houses. Part of the big picture problem in the United States is that it is far too hard to legislate, so the courts and regulations adopted by the executive have to fill the gap.

* Making the respective houses of Congress the judges of their own elections was a bad idea.

* The impeachment power is too weak and too political. And, it should be easier and less political to remove a President (or any other public official) for disability.

* A proposal is pending in Colorado to remove absolute immunity for prosecutors from civil liability, which as drafted I don't support, even though I can somewhat sympathize with the motivations for it. Judges also have absolute immunity. I think that the solution is to make a finding of professional or judicial misconduct or criminal conduct have the collateral consequence of forfeiting absolute immunity, with the statute of limitations for a private civil action to impose liability in those cases running from the time that there is a final criminal conviction or of professional or judicial misconduct. If a judge convicts you of a crime and sentences you to a private prison due to a bribe from a private prison investor, and the judge is convicted of that, the judge should have civil liability to you.

* An alternative to the fault based approach of § 1983 and Bivens for civil rights violations, would be to instead adopt the takings jurisprudence that applies when the government takes property without fair compensation. Rather than being perpetrator focused, if someone is deprived of their civil rights, they would be entitled to just, compensatory only, compensation, by the government under whose color the deprivation occurred, without regard to the intent of the person violating the right, and without individual liability on the part of the agents who participated in the deprivation of civil rights. Indemnification and defense mandates of public employees basically gets you to a similar place in most cases, but denies any relief when someone is deprived of life or liberty wrongfully, if no one individual intentional or almost intentionally violates their rights (e.g. if the injuries or destroyed property or other harm arose from mere negligence or mistakes, or due to broken systems rather than malicious individuals). Thus, if you were incarcerated and later found to be innocent, or incurred attorneys' fees defending a criminal case only to be acquitted, you would be entitled to compensation from the government that brought the charges and incarcerated you, without regard to how you were wrongfully convicted or were charged with a crime for which you were not convicted. Qualified immunity and intent requirements would be much less problematic if § 1983 lawsuits and Bivens actions were secondary remedies to punish individual bad apples (and included, for example disqualification from serving in law enforcement for serious willful wrongdoing), while municipal liability for compensatory relief only was available much more easily.

* Many countries vest prosecutorial power in the judiciary rather than in the executive branch, and many states have an attorney general or DA who is independently elected to create a built in special prosecutor. There is wisdom in depriving an elected executive branch politician like a President or Governor or Mayor from having absolute control over enforcement of the criminal laws.

* Colorado has the Colorado Open Records Act and the Colorado Criminal Justice Records Act to allow pre-litigation discovery of incidents that might give rise to civil liability on the part of public officials, which makes Warne v. Hall, which prevents people from suing first and getting discovery to determine if they really have a claim, by adopting the federal standards of Twombly and Iqbal for pleading civil actions more tolerable than in other contexts. It isn't clear to me that FOIA (the Freedom of Information Act) at the federal level, provides an equally effective tool to bring claims against federal public officials.

* While allowing all U.S. District Court judges to impose national injunctions can be problematic, mostly because it allows for forum shopping, it is also deeply problematic to allow the federal government to re-litigate issues that it has lost in other jurisdictions over and over again, which is just reverse forum shopping. Maybe national injunction power needs to be reserved for the U.S. District Court for the District of Columbia.

* Felons should be able to vote. But maybe they shouldn't be able to run for public office without some process establishing that they were reformed or just the passage of time of a certain number of years after they fully served their sentence.

* A statutory obligation for all law enforcement officers to be unmasked and clearly display their badges subject to narrow exceptions that would have to be authorized much like a search warrant on a case by case basis, wouldn't be a bad law.

* We need a better structure to limit the use of military force and covert operations by intelligence agencies to legally authorized act, that doesn't simply give the President absolute power.

* No President should have the power to unilaterally impose any taxes, including tariffs.

Structural Problems With The Living Constitution

As interpreted the U.S. Constitution has various problems:

* The insurrection clause was gutted by making it not self-executing.

* Presidential immunity from crimes was a horrible mistake.

* No one has standing to pursue too many violations of the law, such as the emoluments clause, the bar on increasing Congressional compensation, some kinds of religious establishment (e.g. not enforcement the ban on political action by religious groups).

* The pardon power is too easily abused.

* Limiting campaign finance by corporations in a partisan neutral way is prohibited (although Citizens United is less of a problem than it is given credit for being IMHO). 

* Term limits for Congress would be good.

* The filibusters has done more harm than good.

* Gerrymandering is an intractable problem and the first past the post system also leads to spoiler effects and a two party system instead of a multiparty system.

* Grounds for impeachment are too feeble and impeachment is too hard to accomplish for genuine crimes.

* The veto power is too strong, undermining Congress.

* The electoral college has proven to be a bad idea.

* The Senate is too distorting.

* The Second Amendment is a bad idea.

* Treaties are too often found to be not self-executing.

* Treaties are not subordinate to domestic laws.

* Given Congress control over election disputes in their own houses was a bad idea. Their roster should be out of their control.

* The unitary executive theory is incredibly harmful and should be actively overruled. The ban on legislative vetos is less of a big deal but also deeply problematic.

* The 25th Amendment on Presidential disability was a good idea, but was executed poorly.

* It should not be possible to be President as your first political position. Prior statewide office, a cabinet post, a top generalship, or service in Congress should be required first.

* The franchise should be affirmatively defined.

Moving Space Force HQ From Colorado To Alabama Is Stupid

Trump is about to renew his efforts to move the headquarters of the Space Force, a fifth military service that he created, from Colorado (where the headquarters of the part of the Air Force bureaucracy that was transferred to the separate Space Force service was located before he created the Space Force), to Alabama. He tried to do so during his first term, but the moved got bogged down in Department of Defense red tape, and the Department of Defense reversed that decision during the Biden Administration. 

UPDATE:

President Trump said one of the main considerations for moving Space Command out of Colorado Springs is because Colorado voters largely vote by mail. 

“I will say I want to thank Colorado,” Trump said. “The problem I have with Colorado… they do mail-in voting, they went to all mail-in voting, so they have automatically crooked elections." 

Trump has long criticized voting by mail, and has cited the practice as a major reason he lost the 2020 election to Biden though he has not provided evidence of fraud emanating from mail-in ballots." . . . 

The Denver Metro Chamber of Commerce estimates that Space Command supports nearly 1,400 jobs and has a $1 billion impact on the Colorado Springs economy. Colorado has a significant Space Force presence, hosting half the bases with its major operations, including Peterson as well as Schriever Space Force Base in the Colorado Springs area and Buckley Space Force Base in Aurora. Nationally, the branch has more than 14,000 military and civilian members, who are called Guardians. 

Colorado Attorney General Phil Weiser on Tuesday said his office was prepared to challenge in court Trump’s decision to move the command, though he did not elaborate the legal rationale for a lawsuit. . . . 

Huntsville, nicknamed Rocket City, has long been home to Redstone and NASA’s Marshall Space Flight Center. The Army’s Space and Missile Defense Command is also located in Huntsville, which drew its nickname because of its role in building the first rockets for the U.S. space program.

This is almost certainly not a legitimate reason for executive branch action under the Administrative Procedure Act. It is also an outrageously false claim.

Colorado Pols has more details.

END UPDATE

This is very on brand for Trump. He is making a call that places partisan politics above what is best for national security and wastes federal dollars.

Alabama is less attractive than Colorado to the civilian employees and contractors (who have a choice unlike active duty service members), so it won't attract the same quality work force. And, if one was going to move it away from Colorado one could have justified an HQ in Florida or Texas, which are also GOP strongholds, but like Colorado and Washington State, actually have a space industry (but see the material in the update above about Huntsville). Charitably, the best that can be said for it is that it provides economic development assistance to an underdeveloped part of the U.S.A. that supports him politically. Less charitably, it can be seen as a political payoff to Senator Tommy Tuberville who was getting in the way of Trump's Defense Department agenda. Less charitably still, it is a way for Trump to try to take action solely attributable to him that will become part of a military service's legacy once the bad decisions that went into that choice are long forgotten.

Tearing down old infrastructure to move it somewhere else is also just wasteful, while providing no benefits to national security. It is will probably require a billion or so dollars of unnecessary defense spending.

Of course, creating the "Space Force" was a bone headed idea in the first place. It undermines interservice cooperation, and honestly, it would have been better to be truly conservative and roll the Air Force back into the Army, rather than further dividing the Air Force. There might be a time when a Space Force makes sense, but that time is far in future.

Space Force's military role remains ill-defined and it remains a work in progress that is currently creating more confusion rather than a stronger U.S. military. Do we really need a new Space Force academy? Do we really need Space Force reserves? How is it doing anything that the Air Force did better? How many people are even in the Space Force? According to Google AI it apparently has 9,400 active duty "guardians" and about 4,600 civilians, making it far smaller than even the Coast Guard.

Trump's other wasteful symbolic military acts

Trump's other symbolic military initiatives are similarly dubious. His military birthday parade in the District of Columbia on June 14, that the Army aptly converted to a boring historical display from the third-world dictatorship show of force that he wanted in an act of malicious compliance, it was a wasteful and expensive flop.

The idea he has floated to change the name of the Department of Defense to the Department of War (as it was called during and before World War II), were also wastes of money, but at least are basically harmless. Indeed, the calling it the Department of War is also more honest.

Trump's intent to reassign Confederate names to U.S. military bases is fundamentally endorsing treason and insurrection and is patently un-American.

Trump's inappropriate domestic uses of the military

Trump's deployment of military force, mostly but not entirely, national guard troops, on the other hand, in addition to being a waste of money, are grossly improper, manufactured crises that threaten democracy, undermine federalism, are inappropriate for immigration enforcement, and are illegal.

The Courts rejected his efforts to criminalize illegal immigration by calling a large swath of the border a military base, and have rejected his characterization of illegal immigration as an "invasion" of the United States for constitutional purposes. Courts have also held that deportation flights he had the military make in violation of court orders were illegal.

Courts have shut down his military deployments to Los Angeles. As the New York Times explains:

A federal judge in California said President Trump broke the law by deploying roughly 5,000 Marines and National Guard troops to Los Angeles in June in response to immigration protests. The judge said on Tuesday that Mr. Trump, Defense Secretary Pete Hegseth and the Defense Department had violated the Posse Comitatus Act, which generally prohibits using the military to enforce domestic law. The judge barred them from using the troops for any law-enforcement purpose, but put the order on hold for 10 days. The administration is expected to appeal. . . . 

The ruling was the latest in a series of judicial battles over claims of expansive unilateral powers by the administration. Mr. Trump and administration officials have deported people without due process, imposed widespread and unpopular tariffs and rolled back energy regulations, citing wartime and emergency powers that have been disputed in federal court. 

The president also declared crime in Washington, D.C., to be an emergency in order to send federal troops there in August, although crime rates in the nation’s capital have actually been falling and local officials said the deployment was not needed. Since then, Mr. Trump has publicly mused about sending the National Guard into other Democratic-led cities. Federal law gives the White House more latitude to conduct local law enforcement in the District of Columbia than in the states. . . .

The ruling places strict limits on the what the troops can do and applies only in California, although the judge noted that Mr. Trump and Mr. Hegseth “have stated their intention” to use Guard troops as a “national police force with the president as its chief.” Gov. Gavin Newsom of California praised the decision, saying Mr. Trump’s efforts were “illegal, authoritarian, and must be stopped in every courtroom across this country.”

Other bad defense department decisions.

These aren't the only bad defense department decisions he's made. He's banned books at the military academies (eventually rescinding all but a few of those bans). 

He wiped all mention of women and minorities who contributed to the U.S. military on government websites (another decision he has mostly backed down from in the face of court action and bad P.R.). 

He's systemically fired or removed from command women and minorities whom he has called "DEI hires" while putting in place less qualified individuals chosen for political loyalty. 

He's baselessly fired transgender troops contrary to their civil rights and denied them their legitimate benefits for being laid off and having served with distinction.

He's purged the ranks of generals and admirals and national intelligence officials to replace them with political loyalists. Trump's major appointments in the defense and national intelligence sectors have involved woefully unqualified people who have made major public blunders.

His openly revenge oriented revocations of security clearances and security details for various officials has been disgraceful.

The mixed bag of Trump's military deployments and threats abroad.

Trump's deployment of U.S. forces have been a mixed bag at best.

Trump wasn't wrong to continue Biden's policy of militarily engaging the Iranian backed Houthi rebels in Yemen who have been using advanced anti-ship missiles from Iran to interrupt maritime commerce in acts of piracy that they claim are in support of Gaza but really have nothing to do with it. But then, he just lost interest and ended U.S. involvement.

Trump wasn't wrong to provide some extra military support to Israel's raids on Iran to thwart its nuclear capabilities, although the B-2 bomber strikes he made were less effective than might have been hoped. And, of course, this is a problem of his own making created when he pulled the U.S. out of President Obama's deal with Iran to end its nuclear weapons program.

Trump, in his first term, set up Biden for failure, and the Afghan government installed by the U.S. and its allies for collapse, by negotiating with the Taliban for a U.S. withdrawal that left the Afghan government out of the loop and left Biden holding the bag when he took office, just a month or so before the scheduled pull out date. And, in his second term, Trump has broken faith with Afghan citizens who served U.S. forces in Afghanistan at great risk to their own lives by trying to revoke the immigration protections that the Biden Administration and his own administration in his first term provided to them.

Trump has been indecisive, has wrecked our alliances, has taken absurd and counterfactual positions, and has played into Russia's hand with respect to the Ukraine War, even though with immense bipartisan political pressure from Congress and from the Defense Department, he hasn't entirely abandoned it.

Trump's utter abandonment of Africa, ending U.S. Aid in a way that has killed hundreds of thousands of people and will kill millions, planning to close all U.S. embassies there, and imposing tariffs upon it, has basically ceded the entire continent to China.

Trump has been less firm than he might have been in the Philippines-China clashes in the South China Sea caused by Chinese Coast Guard harassment of Filipino military and civilian shipping in places that international law has declared to be international waters.

Trump's response to the situation in Israel with Gaza has ranged from rudderless to absurd with his call to vacate Gaza and turn it into a Trump owned beach resort. By floating the proposal without even consulting his advisors, he has undermined U.S. credibility on the issue.

Trump's deployment of naval forces towards Venezuela seems to be an attempt to manufacture a war. His early threats to invade Greenland and Panama and Mexico, contrary to the sovereignty of a NATO member, to treaty obligations, and to international law, and to annex Canada, have likewise been toddler level moves that have undermined U.S. credibility in foreign affairs and turned us into a global menace.

The mixed bag of Trump's procurement decisions

Trump's military procurement decisions have also been a mixed bag.

The cancelation of the M10 Booker light tank (that the Army refused to call a tank) was a good move. Cancelling the Joint Light Tactical Vehicle for the Army (one of the best procurement decisions that the Army and Marine Corps have made for ages), while keeping the Army's buy of the obviously bad Infantry Squad Vehicle that ignores all of the lessons the Army learned in Iraq and Afghanistan was a very bad move.

Cancelling the Army's successor to the M113 was mostly a good move, but leaves the Army without a next generation medical transport and field hospital vehicle, even though other parts of that buy were unwise. Progress on an Osprey-like tilt wing successor to the Blackhawk helicopter in the Army is positive. Upgrading Army small arms makes sense.

The decision to boost purchases of the B-21 Raider and the F-47 Air Force fighter (to replace the F-35A) aren't horrible decisions, nor is the decision to continue the Collaborative Combat Aircraft (a.k.a. Loyal Wingman drone) program. Looking at ways to use cargo aircraft as bombers or missile launching platforms also makes sense. This administration's continued failure to recognize the need to have a close air support aircraft (shared with past administrations), however, even if the A-10 is just too old, wasn't wise. Trump's absurd attempt to play aerospace engineer and claim that the F-47 really needs twin engines, however, is more toddler level governance.

A focus on improving U.S. air defenses in a program known as the Golden Dome (playing on Israel's Iron Dome), on ramping up U.S. drone production, and on rushing to get drone defense resources fielded aren't wrong. Developing hypersonic missiles also makes sense. 

Developing new anti-ship tactical nuclear missiles, however, is a bad call and doesn't meet a real military need since existing anti-ship missiles are more than adequate to sink any ship in existence.

The decision to fund development of Elon Musk's SpaceX Rocket Cargo program which is technologically challenging, doesn't have a proven track record of quality control, and doesn't meet an urgent need, is less wise. This contract is just political payback.

It is honestly still hard to tell, more than seven months into the administration, what it's naval policy is. The Navy is appropriately looking at a major increase in unmanned ships and submarines, and at containerized anti-ship missiles for ships that wouldn't ordinarily have any missiles. Is the successor to the F-35C on or off? Is the Constellation class frigate on or off? Where is the Littoral Combat Ship program? Do we really need more old model Arleigh Burke destroyers? Does spending big bucks on maintaining a large scale amphibious attack capability really make sense?

Trump has talked big about using the U.S. military against cartels in Latin America, but the Department of Defense has apparently done nothing to prepare for this historically law enforcement and Coast Guard mission.

A Non-Constitutional Revolution

The Founders in their ignorance, made the U.S. Constitution extremely hard to amend. This post is a quick recap of some of the more transformative way our constitutional and political order could be remade without constitutional amendments.

Disposition Of U.S. Territory Outside U.S. States

* Admit the District of Columbia, which has a population of roughly 679,000, as a U.S. state (once this was done, repealing the 23rd amendment to the U.S. Constitution that gives the District of Columbia three electoral votes would be easily passed).

* Require Puerto Rico, which has a population of roughly 3.2 million, to choose between independence and becoming a U.S. state. Deprived of an option to continue its current Commonwealth status, it would choose statehood.

* Grant statehood to the U.S. Virgin Islands, which has a population of approximately 104,000.

* Return the Guantanamo Naval Base to Cuba.

* Admit Guam and the Northern Mariana Island as a single new U.S. state (they are basically contiguous) with a population of approximately 221,000.

* Transfer American Samoa with a population of 44,000 to the adjacent sovereign country of Samoa, if it will accept it. Anyone dissatisfied with this could migrate to the United States and retain their citizenship.

* Collectively, this would mean that there would be 108 seats in the U.S. Senate (excluding the U.S. Vice-President's role as a tie breaker) and that there are no permanently inhabited U.S. territories that are not within U.S. states.

Congress

* Expand the U.S. House from 435 seats plus six non-voting delegates to a fixed 991 seats with no non-voting delegates. This would mean that there would be roughly 340,000 people per average seat in the U.S. House of Representatives (compared to a current average of about 790,000 people per seat), so only the Virgin Islands would have more house seats than the number it would be entitled to without a minimum of one seat per state rule, and even then, only by about a factor of three less than the average. This would also increase the size of the Electoral College to 999 electors (with the four new U.S. states), would greatly reducing the risk of a tie vote in the Electoral College (since it is an odd number), and would roughly cut in half the benefit that small states have relative to large states in the Electoral College. The number of U.S. House seats would not be changed if a state were allowed to split into more than one state or was merged with another state.

* Enact a statute requiring U.S. states with more than one seat in the U.S. House of Representatives to elect those seats in a party list proportional representation system (with each party's list determined in primary elections held in advance of the election). States with 50 seats or more would be required divide themselves into two or more regions with a number of seats proportional to the region's population of at least 20 seats and not more than 50 seats each. Currently, those states would be California (98 seats) with 2 to 4 regions, Texas (90 seats) with 2 to 4 regions, Florida (67 seats) with 2 to 3 regions, and New York (57 seats) with 2 regions. Smaller population states would be "at large". This would end gerrymandering of all kinds and would make the federal government a multi-party democracy. Doing this for Congressional delegations on a state by state level rather than nationally, would eliminate the need for a constitutional amendment, would de facto create a minimum threshold that would be much higher than it would be in a national proportional representation election, and would keep the states in charge of election administration.

* Enact a statute requiring candidates for U.S. House in states with just one representative (probably only the Virgin Islands and Guam), and for U.S. Senate, to win a majority of the vote to be elected in a general election and to hold a runoff election of the two two candidates if no candidate receives a majority of the vote in the first round. This would largely end spoiler effects as the shift in the House to what would become a multi-party system would increase the likelihood non-majority first round results.

* End the filibuster and Senatorial holds in the U.S. Senate.

Presidential Elections and Disability

* Require states to allocate their electoral votes proportionately to each candidate's popular vote, rather than by a winner take all method for a whole state, or by Congressional district.

* Pass a law implementing Section 4 of the 25th Amendment to the United States Constitution (concerning Presidential disability), to create a Presidential disability commission in connection with the language giving "the Vice President and a majority of either the principal officers or the executive departments or of such other body as Congress may be law provide" the authority to determine that the President is "unable to discharge the powers and duties of his office" and to keep that determination in force pending a Congressional determination of the question if the President disputes it. This commission might be made up the active judges, collectively, of the U.S. Court of Appeals for the District of Columbia and would have subpoena power in connection with carrying out its duties in this capacity, and would act on the Petition of the Vice President delivered under seal to the clerk of that court.

Qualifications For Public Office

* Enact a law implementing the insurgency disqualification from office in the 14th Amendment (or on any other ground) allowing any court or tribunal with jurisdiction over election administration to determine this by a preponderance of the evidence in a civil action, and allowing states courts and U.S. District Courts from a state where the official was elected to determine this after an election or appointment. For the President and Vice President, the U.S. District Court for the District of Columbia would have exclusive jurisdiction after they were elected (and even before they were sworn in). For federal appointed officials, the U.S. District Court with jurisdiction over the place where the official's primary office address is located would have exclusive jurisdiction. For state and local appointed officials, the state courts of general jurisdiction and U.S. District Courts with jurisdiction over the place where the official's primary office address is located would have exclusive jurisdiction.

Election Administration 

* Restore the protections of the Voting Rights Act expanding the protections historically applied only in places with a history of discrimination to the entire country.

* Create a right to have a state ID issued free of charge at some government office within their county at least every five years, with replacement costs limited to the actual direct cost of preparing a new ID between times. Automatically register anyone who is a citizens with a state ID or driver's license to vote. 

* Allow citizenship for voting purpose to be proven by means including any record of a previous voter registration, a passport, an expired passport, a birth certificate, a naturalization document, a tribal membership, a Social Security number, a marriage certificate to a U.S. citizen, or an affidavit establishing facts necessary to prove U.S. citizenship.

* Establish a right to an absentee ballot without proof of need for any registered voter, if a mail-in ballot is not otherwise made available to them.

* Encourage states to reduce the voting age in federal elections to sixteen years old.

* Classify people who are incarcerated as residents of their domicile immediately prior to their incarceration for purposes of state and local redistricting and for census purposes.

* Allow U.S. citizens who have no previous domicile in any U.S. state as residents of the U.S. state of their choice for purposes of federal elections.

* Prohibit election administration by elected officials (partisan or not), and also by partisan political appointees for whom one party controls the highest governing body of the election administration agency.

Courts

* Pack the court. Add another seven justices to the U.S. Supreme Court to end the distortions arising from having a 6-3 ultraconservative and hyper-conservative majority there. This should be done before any of the rest of this agenda is enacted.

* Establish criminal penalties that include disqualification from office for ethics violations by U.S. Supreme Court judges and other judges, with special venue provisions.

* Repeal the general federal diversity jurisdiction statute. 28 U.S.C. § 1332. As a result, federal court diversity jurisdiction would be allowed only in very specialized cases like class actions and cases where the parties claim ownership of land under the laws of two different states.

* Repeal the general federal question statute. 28 U.S.C. § 1331. This would end federal court jurisdiction over most lawsuits arising under federal law between private parties outside some very specific circumstances such as civil rights, election laws, intellectual property, and bankruptcy cases. The biggest impact of this would be to limit employment discrimination lawsuits to state court.

* Abolish the federal Article I immigration courts and give the U.S. District Courts exclusive jurisdiction over all immigration cases.

* Create a specialized national U.S. District Court for Indian Country which would have jurisdictions from multiple venues in cases where the U.S. District Courts currently have jurisdiction (i.e. felonies committed in Indian territory) and over other civil matters of Indian law, from which appeals would be taken to the U.S. Court of Appeals for the Federal Circuit.

* Statutorily end qualified immunity to lawsuits filed under 42 U.S.C. § 1983.

* End a law parallel to 42 U.S.C. § 1983 for violations of civil rights under color of federal law, thus codifying and expanding the scope of Bivens actions.

* Establish vicarious liability for the employers of government officials or contractors held liable under 42 U.S.C. § 1983 or its new federal counterpart.

* Enact a federal law entitling someone to relief in the form of compensatory money damages, injunctive relief, and declaratory relief from governmental entities that deprive someone of a constitutional or federal statutory right, even in the absence of fault or an intent to do so, including any deprivation of liberty arising from pre-conviction or post-conviction incarceration from someone who was wrongfully convicted, either due to procedural violations giving rise to the conviction or due to their innocence of the charges giving rise to their conviction.

* Enact a law creating a private right of action to seek injunctive relief enforcing the Posse Comitatus Act (which prohibits the use of the federal military to enforce laws domestically) in the appropriate U.S. District Court, to any person impacted by it or to any governmental entity within whose territory military personnel are used for this purpose, with expedited proceedings.

* Prohibit the activation and deployment of national guard troops in a state without the permission of its Governor, absent a notice to the Governor that troops will be deployed at least twenty-four hours in advance and a showing that law and order have collapsed to a point where civilian efforts are insufficient, or that an insurgency is in progress, or that the state is defying federal court orders. If a Governor contests this within twenty-four hours in the relevant U.S. District Court, this activation and deployment shall be stayed until an expedited hearing on the merits can be held to determine if the President has the authority to do so.

* Give U.S. District Court judges broad statutory authority to impose national injunctions against the U.S. federal government.

* Establish a judicial process required to claim the state secrets doctrine in an adversarial proceeding with a specially qualified bar of people having national security clearance at the time of their admission.

* Require an adversarial proceeding affording a personal with national security clearance with due process to revoke a national security clearance for more than five weeks (if this is not done, the temporary revocation would automatically expire).

* A U.S. District Court should be granted the authority to place any federal government agency whose senior officer has defied a court order to place that agency under court receivership, and to remove that government official from office, until a replacement who acknowledges the authority of the court and personally commits to obey that court order can be appointed. 

* Prohibit "bounty" laws that allow someone who would otherwise have no standing to bring a civil action to sue someone for a fine that enforces a state law (which are designed to circumvent judicial review of such laws).

Immigration Laws

* Immediately and automatically grant U.S. citizenship to all legal permanent residents of the U.S. (i.e. green card holders) and to all U.S. nationals who are not U.S. citizens. Allow anyone qualified to get a green card now to immediately get U.S. citizenship.

* Immediately and automatically grant U.S. citizenship to the spouse of any U.S. citizen.

* Grant automatic U.S. citizenship to any member of any recognized Native American tribe, regardless of place of birth, in accordance with the membership rules of the tribe.

* Grant citizenship at birth to a child anyone who is a U.S. citizen, or is serving in the U.S. military at the time of conception or birth. Proof of paternity may be established from the DNA records of the U.S. military kept for people serving in the U.S. military for post-humous identification purposes without the consent of the service member alleged to be a parent (or from a comparison to the DNA of all U.S. service members if the identity of the service member is not known).

* Establish a ten year statute of limitations from first entry into the U.S. (even if interrupted by period abroad of less than one year at a time) on deportations, and allow anyone for whom the statute of limitations has passed to apply for U.S. citizenship on that basis without any civics and English language test.

* Make a passport available free of charge a first time and every time it expires to every U.S. citizen.

* Eliminate authority to denaturalize someone for fraud in the immigration process for any reason, and replace that with criminal penalties for doing so that do not deprive someone of their U.S. citizenship.

* Allow a visa to be revoked after clearing an immigration checkpoint upon entry to the U.S. only with a civil action filed by the United States government in a U.S. District Court at which a valid legal basis to do so, that is not unduly vague and does not violate constitutional rights such as the right to free speech, is established by a preponderance of the evidence.

* Allow someone with a valid visa who is denied entry to the U.S. at an immigration checkpoint to obtain an award of money damages and injunctive relief if the denial of entry is without probable cause to do so, and to obtain injunctive relief reinstating the visa with no right of immigration officials to deny entry if entry is denied with probable cause but the articulated probable cause concern is later overcome. A person with a valid visa who is denied entry could elect to litigate the matter either from a temporary detention center near the place of entry, or from a U.S. embassy in another country such as the country from which they arrived.

* Prohibit deportation of someone, even when valid grounds exist to deport them, to a country where the person is not a national without their consent.

* Establish by statute (regardless of any constitutionally permissible alternatives) that probable cause that someone is deportable is requires to detain someone for immigration violations and that no one may be deported for any reason without notice and a hearing in an Article III court.

* State and local elected officials with immigration detention facilities located in their government's territory, and members of Congress from any state, shall have the right to enter and inspect an immigration detention facility and record by any meaning the people there, what the detainees have to say, and the conditions of the facility, and to demand responses from any person employed there to their questions about the facility, the authority for operating the facility, and the status of the people in the facility.

* The location and status of everyone detained for immigration purposes shall be available to the public.

* Immigration officials and any other private or public person working with them or on their behalf on on their authority shall have a duty to immediately release anyone detained for immigration purposes who presents to them proof that they are U.S. citizens or have a valid visa that has not been revoked by a court. 

Health Care

* Expand Medicare to everyone (without requiring any proof of eligibility), financing it with an increased Medicare payroll tax rate and an Obamacare tax on investment income at the same rate as for self-employed persons. Failure to make a required copayment would not be a basis for denying care but would give rise to an unsecured debt that could be discharged in bankruptcy. Convert VA Hospitals to non-profit independent hospitals financed with Medicare. Repeal Medicaid. End private for profit insurance Medicare providers. Reduce all employee health benefits to Medicare supplemental plans. Require Medicare supplemental plan providers to use standardized claim forms with providers and insureds to simplify provider paperwork.

* End lawsuits seeking to recover the costs of medical care paid for by Medicare brought by any party but the Medicare subrogation division in each state, which could bring subrogation lawsuits in state court to recover medical costs caused by tortious conduct when it determined that it was cost effective to do so.

* Expand Medicare to include long term nursing home care with a deductible not to exceed the median rent in the metropolitan area (or outside of metropolitan areas, in the rural area of that state), which can be paid with a federally guaranteed loan at the one year U.S. Treasury bond interest rate with no payments due until death, secured by a junior mortgage on the patient's personal residence, if any, if the patient is unable to pay.

Labor Laws

* Increase the federal minimum wage to $16 per hour ($32,000 per year for a full-time employee which is roughly the federal poverty line outside Alaska and Hawaii), index it to the consumer price index, and extend it to independent contractors who are providing personal services.

* The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to twelve workweeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth, the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement,  to care for the employee’s spouse, child, or parent who has a serious health condition (a serious health condition that makes the employee unable to perform the essential functions of his or her job), any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or twenty-six work weeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave). Extend FMLA coverage to include being seven months pregnant or more. Expend the duration to up to eight months in a two year period. Create a federal grant equivalent to full-time minimum wage to anyone taking time off under the FMLA.

* Mandate a prorated 80 hours per year of paid time off for employees working 2,000 hours per year (i.e. 1 hour per 25 hours worked).

Controlled Substances

* End the status of marijuana as a federally controlled substance.

Reproductive Rights

* Statutorily clarify that states may not prohibit someone from prescribing and mailing abortion or contraception drugs across state lines or from crossing state lines to obtain an abortion drug or contraception drug obtained from out of state.

* Clarify that federal government health care facilities (e.g. prison medical centers, military hospitals, historically veteran's hospitals) can provide abortions and other reproductive health care notwithstanding state or local law.

* Clarify that the Emergency Medical Treatment Act requires states to allow abortions as part of a medical emergency, pre-empting state law. 

Bivens Narrowed Again

The U.S. Supreme Court's conservative majority isn't troubled at all by denying remedies to violations of the U.S. Constitution.

Bivens is a U.S. Supreme Court case that allowed suits for money damages against federal officials who violated selected constitutional rights, something Congress has failed to do by statute.

The order list [from today] include a unanimous per curiam opinion in Goldey v. Fields, No. 24–809 (S. Ct. June 30, 2024) (also available here), which involves an effort by a federal prisoner to sue federal prison officials for an Eighth Amendment violation alleging use of excessive force. The Court rules a Bivens suit is not available in a three-page opinion that concludes this way:

This case arises in a new context, and “special factors” counsel against recognizing an implied Bivens cause of action for Eighth Amendment excessive-force violations. To begin with, Congress has actively legislated in the area of prisoner litigation but has not enacted a statutory cause of action for money damages. See Ziglar, 582 U. S., at 148– 149. In addition, extending Bivens to allow an Eighth Amendment claim for excessive force could have negative systemic consequences for prison officials and the “inordinately difficult undertaking” of running a prison. Turner v. Safley, 482 U.S. 78, 84–85 (1987). Moreover, “an alternative remedial structure” already exists for aggrieved federal prisoners. Ziglar, 582 U.S., at 137; see Correctional Services Corp. v. Malesko, 534 U. S. 61, 74 (2001). The existence of such alternative remedial procedures counsels against allowing Bivens suits even if such “procedures are ‘not as effective as an individual damages remedy.’” Egbert, 596 U.S., at 498.

For the past 45 years, this Court has consistently declined to extend Bivens to new contexts. See Egbert, 596 U.S., at 490–491. We do the same here.

Congress should extend 42 U.S.C. § 1983 to provide the same relief to violations of rights under the U.S. Constitution or federal law to violations committed under color of federal law. 

The claim that this would make it inordinately difficult to run federal prisons is at odds with the fact that an identical legal rule applies to all state and local prisons and jails, which house the lion's share of federal inmates (and a much larger share of violent criminals).

Musings

* Will we someday reach a point where computer software is routinely bug-free, routine software updates are a thing of the past, and there is a single standard of cables for everything? If not, why not?

* One of the main things that I want AI to do is figure out my habits and patterns and suggest ways to automate them. 

Do I always put emails from a certain sender in a particular folder? Suggest a rule to automate that task. 

Do I go through a certain set of steps to create a citation from an academic journal or preprint webite in a blog post along with its citation? Suggest creating a button in my UI to do that. 

Have I never used a word processing font ever? Suggest putting that font somewhere other than the main dropdown menu in my word processor. 

Do I adhere to certain style standards when drafting legal documents? Suggest making that an MS Word style. 

Do I usually bookmark certain kind of webpages in certain bookmark folders? Make those folders the default choice when I hit the bookmark button. 

Does a webpage or file seem to be in the wrong folder? Confirm that this is where I really want to put it in a pop up question.

* How can we disrupt the systems that create flat Earthers, young Earth creationists, evolution deniers, anti-vaxxers, the sovereign citizen's movement, and similar anti-scientific and conspiracy theory thinking?

* If there a better way to restrain bad actors like Fox News that consistently spread misinformation without doing unnecessary harm to free speech?

* Can courts devise better remedies for administrations like Trump's that consistently ignore or defy the law and court orders?

* Somehow, before today, I managed to run my household without owning an ax or hatchet. A need to get branches I'd trimmed from the tree in front of my house down to under four feet in length and four inches in diameter in order to be eligible to put in my compost bin was the final straw.

* Lawful permanent residency is just second class citizenship. It would be better if that category were abolished and everyone who has or would be eligible for a green card immediately becomes a citizen.

* How much of Japan's reasonable housing prices is due to policy, and how much is due to its shrinking population and unfriendliness to long term immigration?

* People are happier and more productive in countries with higher taxes. Low taxes are a sign of economic underdevelopment. They aren't pro-growth.

Sanctioning And Preventing Federal Government Corruption

Emoluments And Other Standing Problems

The law is very clear. And, it is the highest possible law - a part of the United States Constitution. But, enforcing it, particularly in the case of a President who violates it, by any means short of an impeachment, which can be circumvented by 34 Senators of the President's political party, is another thing.

The U.S. Supreme Court's rules on standing to sue takes the position that you can't have standing to sue as a taxpayer, as a U.S. citizen, or as a voter, on a wrong that affects everyone in the same way.

The U.S. Supreme Court recently held that the President is immune from criminal liability for his official acts, no matter how egregious (in a stark deviation from the widespread understanding at the time it ruled this way), in addition to being immune from lawsuits seeking money damages for his official acts.

Justice Department policy, and the structure of the Executive Branch also prevent federal prosecutors from prosecuting a sitting President, and the President's authority over the Justice Department, together with his pardon power, allows the President to shield anyone he favors from federal criminal prosecutions.

The U.S. Supreme Court hasn't directly ruled on the issue, but at least one lower court (in the criminal case against Trump involving his refusal to turn over documents with government nuclear secrets which he kept in his residence after he left office and refused to return upon demand) has held that special prosecutor statutes are unconstitutional, in an extension of the (until recently fringe) "unitary executive theory."

The same problem does not arise to nearly the same extent in state government. Almost every U.S. state has an independently elected state attorney general who can prosecute misconduct in other parts of the state government, and the federal government can also step in to prosecute state and local government corruption and violations of civil rights as a federal offense. The subject-matter jurisdiction of state courts is also not subject to the same level of strict limitations as the federal courts are by Article III of the U.S. Constitution.

This problem isn't unique to the Emoluments clause either. It comes up frequently in Establishment clause violations of the First Amendment. It can come up when one part of the federal government illegally shares confidential information with another part of the federal government. It comes up when the executive branch spends federal government money without a Congressional appropriation to support it. It comes up when a President orders a violation of the Posse Comitatus Act and then pardons anyone who was involved in it. And, there are many other contexts where serious violations of the law within the executive branch have no viable remedy.

In some cases, an entire house of Congress can, by majority vote, authorize a lawsuit against the Executive Branch in federal court, but this is cumbersome and rendered frequently ineffectual by partisan politics. In some cases, a federal government chartered corporation, like the Public Broadcasting Corporation, can have independent standing to sue and by sued under a statutory grant of federal authority.

But, there is no systemic solution to this problem in existing federal law. Mostly, we just have to trust the President to do the right thing, but not all Presidents have earned this trust, and certainly, our current President has not. This is a glaring flaw in American Public Law.

Solutions

There are plausible solutions which could be imagined that would set aside the usual rules of standing on the grounds of necessity. We could grant the federal courts the authority to deputize a special prosecutor to pursue these issues. We could grant standing to pursue these issues to state attorneys-general. We could allow Congress to create an independent agency (perhaps one located in the judicial or the legislative branch with no Presidentially appointed directors or board members from an organizational chart and constitutional perspective) to pursue these claims. We could vest this authority in former U.S. Presidents who are still living, or the candidate that was the runner up in the last Presidential election.

Possible Constitutional Amendments

Perhaps we need an "anti-corruption" constitutional amendment, although conceptually, maybe this could be broken into several components. Consider this package to six constitutional amendments (and to be clear, some of those could also be accomplished without constitutional amendments):

Anti-Corruption And Standing Amendment

* Create an agency that has standing to take criminal, and civil legal action with national effect), to enforce federal law, to render advisory ethics opinions, and to protect the rule of law within the federal government (perhaps with a director appointed by a governing board made up of federal judges chosen at random),

* Prohibit federal elected officials from having a role in, or knowledge of, the management of private businesses or investments while in office,

* Prohibit self-dealing and conflicts of interest by federal officials including the President,

* Prohibit felons from serving as President unless that disability is removed by the same means as an insurrection disability is removed,

* Prohibit members of Congress from serving while serving a sentence for a felony,

* Authorize removal of members of Congress without being formally expelled from office by the House where someone is a member by the courts for various grounds established by law constituting good cause,

* Expressly authorize the appointment of special prosecutors by a three U.S. District Court judge panel, where the Justice Department is conflicted, or where the federal government fails to prosecute a crime when a preponderance of evidence, beyond mere probable cause, shows that it was committed by the proposed defendant,

* Authorize facial challenges to the constitutionality of legislation and regulations by the anti-corruption agency and by state attorneys-general, even in the absence of a case or controversy or other proof of standing,

* Create standing to enforce the establishment clause by any person who resides in, or is detained by, the territory of a government that is alleged to have violated it,

* Expand the scope of grounds for impeachment to include a willful and persistent failure to faithfully execute the laws in violation of one's oath of office, or a willful defiance of a court order.

* Try impeachments before a panel of judges rather than by the U.S. Senate,

* Prohibit judges appointed by a President from serving as a judge in any court proceeding in which the appointing President is a party in a non-official capacity (including any criminal prosecution),

* Mandate that Congress pass appropriate legislation to thwart judge shopping,

* Create binding ethics rules for the U.S. Supreme Court and lower courts that can be enforced without utilizing the impeachment power by state attorneys-general, but some minority percentage of Senators, or by an anti-corruption agency, and

* Provide additional remedies for courts when federal government officials disobey court orders (including the permanent removal of an official from office, and the appointment of a special master to carry out the duties of the defiant official).

Immunity Amendment

* Overrule the U.S. Supreme Court's recent Presidential immunity ruling creating blanket immunity from criminal prosecution for a President's official acts,

* Forfeit immunity from civil lawsuits for money damages for acts that an official has been legally adjudicated to have committed in a criminal case or civil proceeding,

* Allow immunity from civil or criminal liability for federal government officials exclusively when Congress authorizes it by law, including, but not limited to Presidential immunity and qualified immunity for law enforcement,

* Prohibit stripping all courts of the authority to consider any matter,

* Narrow the political questions doctrine, and

* Make clear that there is no immunity from contempt of court liability.

Anti-Tyranny Amendment

* Impose limitations on the prosecution of state and local government officials by federal officials while they are performing their official duties (perhaps limiting such prosecutions to the anti-corruption agency),

* Make the Posse Comitatus Act a matter of self-executing constitutional law and to allow its enforcement in civil actions as well as by criminal prosecutions,

* Provide a self-executing, federal, private cause of action for compensatory, economic and non-economic damages including litigation costs and attorneys fees and/or injunctive relief, for any deprivation of federal rights constitutional or statutory, under color of state or federal law, against the government under whose authority or actions or inactions the deprivation was made, on a strict liability basis without regard to the intent of the government or governmental agents or employees doing so, and with no form of immunity (in a matter akin to the takings clause),

* Provide an absolute right to have criminal convictions vacated upon a showing of actual innocence by a preponderance of the evidence,

* Create a right to counsel in deportation actions and to bring habeas corpus petitions,

* Remove the "subject to the jurisdiction thereof" (which applies only to a handful of children of diplomats anyway) and "Indians not taxed" provision (which was legislatively mooted in 1924) from the grant of birthright citizenship in the 14th Amendment,

* Prohibit criminal defamation laws,

* Prohibit laws barring travel from one state to another in order for the person doing so to avail themselves of another state's law,

* Prohibit laws barring interstate communications about a matter that is legal to communicate about in either state,

* Prohibit revocation of immigration status based upon speech which would be protected by the First Amendment for a U.S. citizen,

* Prohibit involuntary denaturalization under any circumstances (even in the naturalization was secured by fraud which could be prosecuted but could not result in loss of U.S. citizenship), and

* Expressly include the limitation on the suspension of habeas corpus to places where the federal courts are not open established by Ex Parte Milligan and to clarify that the writ of habeas corpus is available to person detained outside the territory of the United States by the federal government or its agents or contractors.

Election Law Amendment

* Make Section 3 of the 14th Amendment (the insurrection clause) self-executing in any local, state, or federal tribunal with jurisdiction over qualifications to hold public offices or elections for those offices,

* Create eligible voter standing to enforce election laws including campaign finance laws, and constitutional provisions related to elections in jurisdictions where the voter has a right to vote,

* Remove the authority of Congress to resolve disputes over the election or qualifications of their members or the validity of duly certified state elections for federal offices, vesting that authority, instead, in the courts,

* Invalidate all statutory confidentiality rights other than attorney-client privilege and religious confession privilege for anyone running for, or holding, a federal elective office,

* Remove the authority of state legislatures to appoint electors for the President by any means other than a vote of the people,

* Require federal elections be administered at the state and local level by officials who are not partisan elected officials or appointees of partisan elected officials,

* Authorize non-criminal remedies for false statements of presently existing facts, or false statements related to voting, made with actual malice, in connection with political speech, and

* Constitutionally overrule Citizens United which constitutionally prohibits any rigorous campaign finance regulation.

Pardon Power Amendment

* Expressly prohibit the President from pardoning himself, or members of his family, or a President who appointed the current President to the office that put him in the line of succession to be President,

* Prohibit pardons from contempt of court sanctions whether civil or criminal, 

* Invalidate pardons for criminal conduct taken in reliance on a promise from the President that it would be pardoned, or issued in exchange for any consideration,

* Require notice of all pardons and commutation (other than a stay of execution) to be transmitted to Congress to be effective, and to subject them to a legislative veto in the same way as a veto override that must be acted upon with a certain period of time (perhaps 35 days) after it is transmitted to Congress.

Congressional Supremacy Amendment

* Clarify that Congress has plenary authority over the operations and organization of the Executive branch, and over how the President exercises his discretion in any matter whatsoever of which the constitution or statutes grants him authority, which the President has no authority to contradict,

* Require all Executive Orders purporting to impact anyone outside of the Executive branch of the federal government to be transmitted to Congress and paused until ratified by both houses of Congress, or until three weeks have elapsed, before taking effect, and to allow either house of Congress alone, by majority vote, to repeal any Executive Order,

* Legalize legislative veto legislation (retroactively),

* Confirm the authority of Congress to pass anti-impoundment legislation,

* Confirm the validity of civil service protections for public servants,

* Confirm the validity of government contracting rules established by Congress,

* Constitutionally disavow the "unitary executive" theory by expressly allowing Congress to create independent agencies whose directors, boards, and staff cannot be dismissed or directed by the President,

* Validate the constitutionality of laws such as the Administrative Procedures Act which governs how executive branch discretion may be exercised,

* Provide that Congress has the authority to waive any claim of executive privilege made by the President, and

* Constitutionally ratify the authority of Congress to pass legislation like the War Powers Act.