Legal News for Weds 12/18 - Ponsor's Ethical Breach, Musk's Opposition to GOP Funding Plans, More TikTok Legal Challenges and Blue Stage AGs to Leverage Loper Bright

Minimum Competence

This Day in Legal History: Korematsu Decision

On December 18, 1944, the U.S. Supreme Court delivered its controversial decision in Korematsu v. United States, upholding the forced relocation and internment of Japanese Americans during World War II. The case challenged Executive Order 9066, issued by President Franklin D. Roosevelt in 1942, which authorized the removal of over 120,000 Japanese Americans from their homes to internment camps. Fred Korematsu, a U.S. citizen of Japanese descent, defied the order, arguing that it violated his constitutional rights.

In a 6-3 decision, the Court ruled that the internment was a valid exercise of wartime authority, emphasizing the need to protect national security over individual rights during a period of "emergency and peril." Writing for the majority, Justice Hugo Black stated that the internment was not based on racial prejudice but on military necessity, a justification many have since criticized as a flawed rationale.

The dissenting justices, including Justice Murphy, condemned the decision as a blatant violation of constitutional rights and a form of racial discrimination. Justice Murphy called the internment camps "a legalization of racism," while Justice Jackson warned of the dangerous precedent the ruling could set.

Though the decision has never been explicitly overturned, Korematsu has been widely discredited. In 1983, Korematsu's conviction was vacated by a federal court, acknowledging government misconduct in the case. In 2018, the Supreme Court criticized the decision in Trump v. Hawaii, stating it "was gravely wrong the day it was decided."

The legacy of Korematsu remains a stark reminder of the fragility of civil liberties during times of fear and conflict, prompting ongoing discussions about justice, prejudice, and constitutional protections. It should inspire us to question how firmly we hold our principles when we don’t hold fast to them in the face of consequence but instead abandon them entirely; when we preference a temporary assuaging of fear among the skittish masses above the rights of citizens.

Korematsu remains a stain on U.S. history and carries continued resonance into the modern day, as we confront the consequences of electing a president, House, and Senate largely on the strength of their promise to intern ethnic minorities. Those that would seek to distance our actions today from 1944 would suggest that interned Japanese-Americans were largely citizens, and detained immigrants today are not – but this implicates the question of who controls the bestowing of citizenship, the immigrant or the state?

A federal judge, Michael Ponsor, faced ethical violations after criticizing Supreme Court Justice Samuel Alito in a New York Times essay. Ponsor condemned Alito for displaying controversial flags outside his properties, including an upside-down American flag associated with Trump supporters during the January 6 Capitol riot. The critique spurred a judicial misconduct complaint by the conservative Article III Project, leading to an investigation.

Chief U.S. Circuit Judge Albert Diaz ruled that Ponsor’s essay undermined public confidence in judicial integrity and violated the Code of Conduct for U.S. Judges by commenting on partisan issues. Though the essay did not reference a specific case, it coincided with debates about Alito’s potential recusal from cases involving the January 6 riot and Trump's immunity bid. Ponsor apologized in a letter, acknowledging the ethical breach and committing to consulting judicial panels before future public writings.

The controversy highlights tensions surrounding judicial impartiality and political commentary, particularly as it intersects with high-profile cases and public scrutiny. Just to check the box score here, that is one judicial misconduct violation for the judge that criticized the justice that flew insurrectionist flags at his home–none for the latter.

Judge's criticism of US Supreme Court's Alito over flags is deemed improper | Reuters

Elon Musk has publicly opposed the Republican plan to temporarily fund the government, adding tension to Speaker Mike Johnson’s efforts to secure a deal before Friday’s shutdown deadline. The proposed legislation includes billions in disaster relief and agricultural funding, angering fiscal conservatives. Musk, tapped by President-elect Donald Trump to advise on government efficiency, criticized the bill on X, reflecting growing conservative discontent. Johnson acknowledged Musk and Vivek Ramaswamy’s concerns but stressed the need for bipartisan cooperation given the narrow Republican majority.

The funding dispute highlights ongoing GOP divisions that previously ousted Speaker Kevin McCarthy. Johnson faces an even slimmer majority due to recent election losses and Trump’s appointment of three Republican representatives to his administration. This leaves the party with a precarious one-vote margin until special elections in April. Conservatives like Marjorie Taylor Greene have criticized the bill's added spending as unnecessary, predicting it will gain more Democratic than Republican support, risking further internal conflict.

Johnson remains confident about retaining his position as Speaker despite challenges, emphasizing his focus on immediate legislative priorities, including the budget blueprint and border security measures.

Trump Key Adviser Musk Comes Out Against Year-End Funding Bill

A special master has ordered TikTok Inc. to provide source code, financial data, and usage data for its apps, including CapCut and BytePlus Video Editor, in a trade secrets and copyright infringement case filed by Beijing Meishe Network Technology Co. The Chinese tech company alleges that TikTok misappropriated its video and audio editing source code, accusing a former Meishe engineer of trade theft before joining TikTok.

The case, originally filed in Texas in 2021, was transferred to California in 2023. TikTok argued that discovery about its apps, including Faceu and Lemon8, was irrelevant because U.S. laws do not typically apply to conduct outside the country. However, the special master, Hon. Kendall J. Newman (Ret.), ruled that discovery was necessary since Meishe may recover damages for foreign infringement if it can show TikTok copied its code in the U.S. and used it abroad.

TikTok has 30 days to comply with the order, which allows Meishe to pursue claims involving extraterritorial damages. Meanwhile, TikTok also faces a potential U.S. government ban unless its parent company, ByteDance Ltd., divests the app by January 19. On the same day, Newman partially granted TikTok’s request to compel Meishe to disclose documents about its affiliate XAT, which allegedly developed the disputed source code.

TikTok Must Turn Over Code, Financial Data in Trade Secrets Suit

Democratic state attorneys general (AGs) are preparing to defend environmental, social, and governance (ESG) initiatives against expected challenges from the incoming Trump administration and Republican-controlled Congress. They plan to leverage the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which limits agency regulatory authority, to counter potential anti-ESG actions that lack explicit congressional approval. Minnesota AG Keith Ellison and Nevada AG Aaron Ford emphasized their readiness to use legal frameworks like the Administrative Procedure Act and Loper Bright to protect ESG-related policies.

Concerns include possible rollbacks of Securities and Exchange Commission (SEC) rules facilitating ESG proposals, restrictions on corporate diversity, equity, and inclusion (DEI) initiatives, and curtailment of climate-related disclosures. The GOP's Project 2025 agenda calls for sweeping changes, including a task force to challenge ESG/DEI practices and reclassification of DEI as discriminatory. Ellison and Ford argue such measures risk undermining civil rights and shareholder freedoms.

Democratic AGs have pledged to challenge these policies in court and defend existing ESG regulations, such as the SEC’s climate disclosure rules. Meanwhile, Republican AGs are aligning with Trump’s deregulatory agenda, with Tennessee AG Jonathan Skrmetti noting their support through briefs and interventions. Both sides are preparing for extensive legal battles over the regulatory future of ESG and DEI initiatives.

Blue State AGs Prepare to Use Loper Bright Ruling to Defend ESG

This is a public episode. If you’d like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe