Most weeks we summarize two, sometimes three, cases from the federal courts of appeals. This week we provide to you free of charge (as always) one, single, case. But, hang on, it has four opinions! It’s also 169 pages, which is way way more than our guests usually read for all an episode’s cases put together. We did, however, so you don’t have to. The matter is about a Florida public school that didn’t abide by the wishes of a child’s parents when it comes to what pronouns to use for the child. Much more broadly, though, it’s about the ins-and-outs of how the due process clauses of the Constitution substantively protect rights. And how rights are protected is different not only based on whether the right is “fundamental” or not, but also whether the government is acting legislatively or executively. Our team goes through each opinion, details where the three Eleventh Circuit judges disagreed with each other, evaluates the litigation tactics, and points out where the judges—and the Supreme Court precedent they’re relying on—go astray. Littlejohn v. School Board of Leon County Sacramento v. Lewis Judge Newsom’s article on incorporation The One and Only Substantive Due Process Clause

Is stretching out one’s middle finger at the police protected by the First Amendment? And whether it is or not, can the police trump up charges and assault someone who flips that bird? We dig into those deep constitutional issues with Jaba Tsitsuashvili of IJ when he discusses an Eighth Circuit case about a man stopped in Des Moines, Iowa. The police claim it was because he drove dangerously. The courts bought that—until the man got a hold of the video. It showed that the police may not have been entirely accurate, which led to his acquittal and the current civil rights lawsuit. Then we move to the Sixth Circuit and hear from IJ’s Robert Fellner about another retaliation case, this time involving Wayne County, Michigan. A man had his pension cut off in response to him criticizing the county’s policies. But he seems to have not actually qualified for the pension at that time anyway. What’s that mean for retaliation and the First Amendment? The court upheld a jury award for the man and he won on appeal. Our panel discuss how the issue can get complicated. Fugenschuh v. Minnehan Seals v. Wayne County Whren v. U.S.

Often in old constitutional cases you see judges of yonder years invoking this mysterious substance called “the police power.” It’s something that has fallen out of a lot of our constitutional conversations, and unfortunately when it’s remembered today it’s often taken to mean “the government can do whatever it wants.” We take an episode to try and set things straight. Joining us is Professor Daniel B. Rodriguez of Northwestern, who has written a book to explain what the police power is, where it comes from, and why it—for better or for worse—allows our state and local governments to do a good many things, but not all things. The book is Good Governing: The Police Power in the American States. Dan points out that the police power, the states’ power to regulate for public health, safety, welfare (and perhaps morals), was traditionally not thought of as simply letting the government do whatever it wants minus constitutional rights. Instead, what the government did could exceed the police power without even getting to the question of rights. Over the years the police power has expanded in ways many of us can reasonably disagree about, Dan taking a more expansive view than many fans of IJ might. But whatever one’s thoughts on where the edges are, Dan persuasively argues we need to reassess where the police power has gone and where it’s going. On the podcast we particularly focus on zoning and occupational licensing as a couple areas needing rethinking, and cover much other ground. It you’ve ever wondered what’s the difference is between the police power and due process or where the states get their authority to regulate in the first place this is the wide-ranging episode—and book—for you. Good Governing (free download!) Good Governing (physical copy for purchase) Dan’s NYU Journal of Law & Liberty article

What’s the difference between a campaign contribution and a bribe? More than the Sixth Circuit seemed to think. Or so argues Paul Sherman of IJ about a recent appeal of a bribery prosecution of a Cincinnati city councilmember. The councilmember was speaking to a developer and asking for a contribution. Unknown to him, the developer was working with the FBI and wearing a wire. They had some conversations about contributions and approving projects that were very confusing and also raised important First Amendment concerns. The court split 2-1 on whether his conviction was OK with three interesting opinions. Then we move on from bribery to iPhone use. By cops. Who use an iPhone to look into a car’s window. Was that a search? IJ’s Bobbi Taylor discusses a Second Circuit case that said it was not and neither was the touching of the car a seizure. It’s an interesting Fourth Amendment case where the court applies a famous case of Justice Scalia’s about searches and modern technology. The “reasonable expectation of privacy” test comes up as does the complete mess that the Fourth Amendment finds itself in these days. Click here for transcript. U.S. v. Sittenfeld U.S. v. Poller Kyllo v. U.S. Herculaneum scrolls Plunkitt of Tammany Hall

A long-time friend of the Institute for Justice, Robert Thomas, joins us this week. For years he’s litigated property rights cases across the country, lately for the Pacific Legal Foundation, and also blogged his adventures—and a whole bunch of other property rights news—at inversecondemnation.com. With some years since his last visit to Short Circuit, he comes back to discuss a recent North Carolina case where the legislature revived some claims after a statute of limitations had lapsed. Was that the taking of a “vested right”? The court is unanimous in saying it wasn’t, but how the two opinions got there in different ways is the most interesting part. Then, IJ’s Justin Pearson brings us to the fields—and feed lots—of Minnesota for a retaliation case where a farmer petitioned the state legislature. That leads into a discussion of “old property” versus “new property” and how we should think about their protections. Plus, law students interested in SCOTUS previews being held at their school should reach out to Justin. Those looking for a little “where are they now” can skip to the end. And fans of Thomas Hardy can enjoy the opening. Register for the Tavern Debate on March 28, 2025 in Westlake Village, California! RSVP for our 10th Anniversary Party and Show on April 3d in DC! Click here for transcript. Wagner v. Scheirer McKinney v. Goins inversecondemnation.com Bound By Oath episode on Pennsylvania Coal SC episode on the British Constitution Tess of the d’Urbervilles

Everyone agrees we need to build more homes. But what if those homes are going to be in your backyard? For some reason that possibility often leads to discoveries of endangered species. Ben Field of IJ joins us to report on an environmental case from the Fourth Circuit where the dispute came down to whether new homes would hurt a species of bat. The problem is no one had seen a bat. So are they really endangered? And what does this have to do with the famous snail darter “species” from a 1970s Supreme Court Case? Ben explains all. Then your host lays out how a case is “removed” from state to federal court and “remanded” back again. This issue came up in some opioid crisis litigation, also from the Fourth Circuit. Follow along as all the mysteries of the federalist system are revealed. Click here for transcript. S.C. Coastal Conservation League v. Corps of Engineers City of Martinsville v. Express Scripts TVA v. Hill Adam’s Legal Newsletter post on the snail darter Short Circuit episode on Mark Meadows case Short Circuit episode on PBMs Dracula Corleone, Sicily

You probably know that all-too-many jobs require a license to work. But how is that license administered, who enforces its rules, and who makes the decision on whether to take the license away? Almost always it’s a board composed of people with the same license. Rebecca Haw Allensworth joins us to discuss her new book The Licensing Racket: How We Decide Who Is Allowed to Work, and Why It Goes Wrong. Unlike other studies on licensing it digs deep into how licensing boards operate, what their incentives are, and how they are hard on outsiders who haven’t hurt anyone but all-too-easy on insiders who are truly bad actors. She tells stories of what makes boards act this way, how it relates to antitrust law, and what has and could be done to reform how we regulate professions. Also, did you know Tennessee used to have a “beauty pageant operator license”? Listen in to hear that story and much more. Click here for transcript. The Licensing Racket N.C. Board v. FTC (“The Case That Shall Not Be Named”) Licensed to Work (3d ed.) Bona Law

Two cases, from the Fourth and Sixth Circuits, came out within just a few days of each other, and each was about a city tearing a house down. And whether that was OK. They came to different conclusions, partly because one seemed to have been litigated a bit better, but also for other reasons we discuss. First, IJ’s Christian Lansinger describes a Virginia property that wasn’t in great shape, but also where the officials didn’t act quite right before they tore it down for being a nuisance. Unfortunately, the owner sued too late for the court to address most of his claims. In Kentucky, on the other hand, the owner sued in time after being told he couldn’t appeal to the city’s property review board because although it’s mentioned in the city code, city officials told him it didn’t exist. The court was not impressed by this and allowed the case to move forward. Joe Gay of IJ brings this matter to our attention, along with an interesting concurrence about how our property rights have suffered from a slow boil. RSVP for our 10th Anniversary Party and Show on April 3d in DC! Listen to Bound By Oath! Click here for transcript. D.A. Realestate Investment v. City of Norfolk McIntosh v. City of Madisonville Robert Thomas’ blog post IJ’s Brody case The Wrong House by A.A. Milne

We welcome back Easha Anand of Stanford Law’s Supreme Court Litigation Clinic for her third (or is it fourth?) appearance. Last time she was on she had not yet argued at the Supreme Court, but now she’s done it four times. She tells us if it gets easier (not so far) and then gives a report on a recent Third Circuit case where the court got qualified immunity all wrong. In ruling on a malicious prosecution claim the court helped the pernicious doctrine of QI grow from just being about rights to about causes of action. Then IJ’s Anya Bidwell takes us up to the First Circuit for a civil forfeiture matter concerning 30,000 drug prosecutions that were thrown out and whether the federal courts can help those wrongfully convicted get their property back (“no” is the answer). Also, at the end (after some discussion of biker gangs) there’s some joking about how the Supreme Court has relisted two IJ cases. What your host and guests didn’t know at the time, though, is that the Court would grant cert in one of them just an hour afterward! It’s Martin v. United States, and we’re sure you’ll hear more about it in future podcasts. Click here for transcript. RSVP for our 10th Anniversary Party and Show on April 3d in DC! Rivera-Guadalupe v. City of Harrisburg Cotto v. Campbell Williams v. Aguirre O’Connor v. Eubanks How to Fix a Drug Scandal Policing for Profit grade for Massachusetts DOJ report on Springfield, Mass IJ page on Martin v. U.S. Tea-Cup Reading & Fortune-Telling By Tea Leaves

If you have a greenhouse, and a government agent sees it on Google Maps, is that fact probable cause to charge you with growing illegal cannabis, fine you $10,000 a day, and not give you a hearing for years? Humboldt County, California thought it was and threatened ruinous fines against innocent property owners for years in an abusive enforcement scheme. IJ represents innocent property owners in the county who had to take their case to the Ninth Circuit to move forward with their constitutional claims. The lead attorney, Jared McClain, joins us to detail the lawsuit and what the court said about the Excessive Fines Clause plus several other parts of the Constitution. Then, Andrew Ward of IJ takes us to the Fourth Circuit for a challenge to racial preference policies of the Small Business Administration. The case didn’t get to the merits because the court thought the plaintiff wouldn’t be eligible for benefits even without any racial preferences. In light of that there’s some discussion of how best to plead one’s case. Come to our 10th anniversary show and party in DC on April 3d! Click here for transcript. Thomas v. Humboldt (excessive fines) Thomas v. Humboldt (other claims) Hierholzer v. Guzman United States v. Bajakajian