So what’s new in DuhSantistan?

And one of the people who isn’t bound by his view on the constitutionality of the statute is the Governor, who has the constitutional authority to suspend him from office for refusing to perform the legal duties of the office.

While it’s a reassignment case rather than a removal case, the Governor can point to Ayala for the proposition that a blanket policy is by definition not the exercise of prosecutorial discretion, but instead an absence of discretion (and they cited with approval the New York Court of Appeals, of all things, for that proposition).

 

Except he's suspending him for performing the legal duties of that office. If that's the standard now, I look forward to the next Democratic governor suspending Republican state attorneys who are doing their job in a way that governor dislikes. Big Government Ron set the precedent.

 

By the way, Ben, if you're correct about Florida law authorizing this, why did DeSantis crony, Manny Diaz, try to pass a law in the Florida Legislature THIS YEAR explicitly authorizing this exact action?
Senate Bill 1812 (2022) - The Florida Senate
https://www.flsenate.gov/Session/Bill/2022/1812/BillText/Filed/PDF

If Florida law already allowed DeSantis to do this, why try to pass this bill? Doesn't the failure of this bill undermine the argument you're making?

 

Oh, it’s quite clearly a response to the attacks on judicial review that accompanied the Lochner-era. But that doesn’t make that case wrongly decided - I agree with the reasoning that statutory enactments are clothed with a presumption of validity until they are determined unconstitutional, and that allowing executive officials to refuse to act on the basis of their own constitutional opinion is a recipe for lawlessness that gives any executive officer an effective unilateral veto over any law he is charged with enforcing.

I’ve never particularly cared what party my state attorney was (and I’m not sure I even know), because I don’t see it as a political position. I’m not a fan of nullification policies because of the concerns I’ve noted, but I don’t know that that’s of any particular concern as to getting “Republican state attorneys” suspended since I don’t think that blanket non-prosecution policies are really a thing outside of a small handful of very liberal state attorneys in the first place.

 

I consider enforcing unconstitutional laws to be a much greater threat to this country than some elected officials opting not to enforce valid laws that they consider unconstitutional. But ironically, I guess I'm the one supporting smaller government now.

Neglect of office is now whatever the governor says it is. I'm sure the Democratic governor can invent some pretext for why they're neglecting the office.

 

Read the Scalia/Garner book ; negative legislative history is the most useless of all forms of legislative history because there are any number of possible reasons why a bill may have failed to pass and it is impossible to discern why - including a determination that it was unnecessary because what it would have done was already the law.

And I have no idea why he filed it given that the reassignment provisions are unquestionably already the law - it’s literally Scott’s sole articulated reason for reassigning death-eligible cases from Ayala that the Supreme Court already upheld. Possibly thought there was some political value to introducing a bill to combat “woke prosecutors” even though all it would do is codify the Ayala decision?

 

He filed it because a prosecutor using his enforcement discretion to opt not to enforce an unconstitutional law isn't neglect of duty by any understood meaning of the term. That's why Diaz wanted to pass a law changing the meaning.

 

Let's be very clear what the state of the law in Florida is right now. This is what the Florida Supreme Court has ruled on the right to privacy and abortions (from In re TW):

Common sense dictates that a minor's rights are not absolute; in order to overcome these constitutional rights, a statute must survive the stringent test announced in Winfield: The state must prove that the statute furthers a compelling state interest through the least intrusive means. The Roe Court recognized two state interests implicated in the abortion decision: the health of the mother and the potentiality of life in the fetus. Under Roe, the health of the mother does not become a compelling state interest until immediately following the end of the first trimester because until that time, "mortality in abortion may be less than mortality in normal childbirth." Roe, 410 U.S. at 163, 93 S. Ct. at 731. Due to technological developments in second-trimester abortion procedures, the point at which abortions are safer than childbirth may have been extended into the second trimester. See City of Akron, 462 U.S. at 429 n. 11, 103 S. Ct. at 2492 n. 11. We nevertheless adopt the end of the first trimester as the time at which the state's interest in maternal health becomes compelling under Florida law because it is clear that prior to this point no interest in maternal health could be served by significantly restricting the manner in which abortions are performed by qualified doctors, whereas after this point the matter becomes a genuine concern. See id. Under Florida law, prior to the end of the first trimester, the abortion decision must be left to the woman and may not be significantly restricted by the state. Following this point, the state may impose significant restrictions only in the least intrusive manner designed to safeguard the health of the mother.[6] Insignificant burdens during either period must substantially further important state interests. Compare id. at 430, 103 S. Ct. at 2492 ("Certain regulations that have no significant impact on the woman's exercise of her right may be permissible where justified by important state health objectives.").

Under Roe, the potentiality of life in the fetus becomes compelling at the point in time when the fetus becomes viable, which the Court defined as the time at which the fetus becomes capable of meaningful life outside the womb, albeit with artificial aid. Roe, 410 U.S. at 160, 163, 93 S. Ct. at 730, 731. Under our Florida Constitution, the state's interest becomes compelling upon viability, as defined below. Until this point, the fetus is a highly specialized set of cells that is entirely dependent upon the mother for sustenance. No other member of society can provide this nourishment. The mother and fetus are so inextricably intertwined that their interests can be said to coincide. Upon viability, however, society *1194 becomes capable of sustaining the fetus, and its interest in preserving its potential for life thus becomes compelling.[7]See Webster, 109 S. Ct. at 3075 (Blackmun, J., concurring/dissenting). Viability under Florida law occurs at that point in time when the fetus becomes capable of meaningful life outside the womb through standard medical measures. Under current standards, this point generally occurs upon completion of the second trimester. See id. at 3075 n. 9 (no medical evidence exists indicating that technological improvements will move viability forward beyond twenty-three to twenty-four weeks gestation within the foreseeable future due to the anatomic threshold of fetal development). Following viability, the state may protect its interest in the potentiality of life by regulating abortion, provided that the mother's health is not jeopardized.
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Until the Republicans on the Florida Supreme Court rewrite the right to privacy, Andrew Warren is inarguably correct. DeSantis's abortion ban is unconstitutional, and because Warren swore an oath to obey the Florida Constitution, he has a duty not to enforce a law that is unconstitutional. Case closed.

 

Yes, DeSantis, please make a huge deal about enforcing abortion bans in Florida. It's a winning issue for you. Keep it in the news from now until election day.

 

The law directly violates Florida Supreme Court precedent construing the Florida constitutional right to privacy. It has been determine to be unconstitutional (under the likelihood of success element) by one Circuit Judge who enjoined the law. That injunction was reversed on appeal under the “preserve the status quo” element of injunctive relief. But the District Court if Appeal didn’t reject the likelihood of success finding. For this prosecutor to charge people under a law directly in violation of Florida Supreme Court precedent under the state constitution is untenable. And disgraceful. DeSantis is equally disgraceful for pushing prosecutions in violation of the state constitution. Unless and Until the Supreme Court reverses it’s prior cases, there cannot be prosecutions under this law. And, I add: the statute that DeSantis chose to implement does not reach the exercise of prosecutorial discretion by a state constitutional officer.

 

There are already cases that make this law illegal. He has to follow them. The state constitution is the law of Florida too. And it trumps the statute

 

The Florida constitutional right to privacy. Which is the same as Roe

 

Their position (with fairly express Florida Supreme Court support) is that it isn’t an exercise of prosecutorial discretion. When Scott reassigned the Ninth Circuit’s death-eligible cases from Ayala because she said she would never seek the death penalty, her defense was also that she was exercising prosecutorial discretion. And the Florida Supreme Court expressly held that a blanket policy is not an exercise of discretion (and is instead the absence of discretion) because it isn’t making reasoned, case-specific determinations.

There’s also currently uncontradicted First DCA precedent saying that specific law is currently enforceable.

But, in any event, the joint statement he was dumb enough to sign that got him suspended doesn’t assert that he’s refusing to enforce it because it’s unconstitutional, it says he won’t enforce abortion restrictions because he believes that criminalizing abortion does not serve the interests of justice.

 

No. The First DCA reversed an injunction based on the status quo element. The decision has no precedential effect on the legality of the statute at all. It doesn’t make the law legal; just not enjoined. It would be surprising for that court to uphold the law in the face of Florida Supreme Court construction that the law blatantly contradicts. And the decision will be certified to the Florida Supreme Court in any event. In the face of direct precedent rendering the law illegal, it would not be in the interest of justice to bring prosecutions to enforce the statute. It would, in fact, be blatantly unethical. And I would add that since DeSantis is a lawyer, the Florida Bar should investigate his actions for suspending a prosecutor who is refusing to enforce a law that is on direct violation of constitutional precedent binding on the state. My choice of the word “interests of justice” was clear because I reject your parsing his words. Prosecution under an unconstitutional law— one that precedent clearly holds is unconstitutional— is about as disgraceful an act that a prosecutor can engage in. The death penalty comparison is not apt. The death penalty is not unconstitutional. Florida follows the outline of Roe. 15 weeks violates that.

 

Florida law is fairly unequivocal that statutes are cloaked with a presumption of constitutionality unless and until they are judicially determined to be invalid. This statute has not been, and there is no injunction to upset its enforceability in the interim.

Executive officers purporting to determine constitutionality for themselves is the attack on judicial review that you warned of when we were discussing the independent state legislature doctrine. Unlike that issue this is purely a question of Florida law, and Florida’s constitution has been unequivocally interpreted to commit the question of constitutionality exclusively to the judiciary with the express holding that executive officers must treat laws as constitutionally valid in the absence of a judicial determination that they are not.

 

Yep, Roe before Casey weakened it. That's why this law is clearly unconstitutional under the Florida Constitution, until the far-right Florida Supreme Court rewrites the right to privacy.

The First DCA cannot overrule the Florida Supreme Court. The First DCA reversed the circuit court's injunction on procedural grounds (because the Republican "judges" rewrote standing law to avoid having to come to an outcome they didn't like).

 

Desantis has officially made FL a police state.

 

Seems like most agree that practically, the prosecutor could have exercised discretion and done what he wanted to do in specific cases without making a statement in advance which DeSantis was able to use to suspend him. Not sure what the upside of that was. And I think both sides have made some valid points here. While I'm generally not a fan of having laws we don't enforce, if the legislature banned all guns tomorrow, I'm not sure that a prosecutor would have an obligation to enforce that law while it worked its way through the courts.

One thing that interests me in these discussions is jury nullification. My understanding is that lawyers aren't allowed to tell a jury about it. There is a big law firm, for example, that run ads educating potential voters that they only go after defendants with insurance. Would it be allowed for someone to run ads telling potential jurors that they have the power of jury nullification in abortion cases?

 

Yep. Free speech.
2nd Circuit partly rules for jury-nullification advocate challenging limit on protests near courthouses

 

There are two other points related to the discussion from yesterday I want to make after further thought:
1. Forcing government actors to enforce unconstitutional laws results in significant amounts of legal fees. 42 U.S.C. 1983 has a fee-shifting provision that allows people whose constitutional rights were violated to recover attorneys' fees from the government.

In other words, in requiring government actors to enforce constitutional laws, we are setting them up to be sued and then to have to pay hundreds of thousands of dollars to millions of dollars in legal fees to the other side's lawyers and their own lawyers.

2. Qualified immunity can also come into play. For the folks who don't have absolute immunity, if they violate a clearly established constitutional right, they may end up being personally liable for that violation. Basically, you're imposing legal liability on to the government actors who are purportedly required to enforce the unconstitutional laws.

In addition to the many reasons I highlighted yesterday, those are two additional reasons why it seems particularly absurd to me to claim that government actors have no discretion when it comes to enforcing unconstitutional laws.