[Eugene Volokh] Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

How should the next Supreme Court Justice adjudicate? Following a lively debate on Cato Unbound, Evan Bernick responds to critics of judicial engagement, explaining why engagement is a modest proposal — but a crucially important one. Click here to read.

This week on the podcast: IJ litigators Diana Simpson and Robert Everett Johnson talk ballot selfies and 3-D printer gun speech.

• Created in the wake of the 2008 financial crisis, the Consumer Financial Protection Bureau is an independent agency that vests extensive power in a single director whom the president may only remove “for cause.” D.C. Circuit: Which is weird and violates the separation of powers.
• Passenger in car pulled over for lack of visible license plate light has bag with over 100 gift cards. Fifth Circuit: There is no reasonable expectation of privacy in gift cards’ magnetic stripes, so an officer — and later the Secret Service — did not need a warrant to scan them.
• Detroit SWAT raids home whose residents are suspected of theft of utilities services and discover a probationer who possesses a gun. Sixth Circuit: So back to prison for him. (No word on his utilities bill. But maybe now his Fourth Amendment challenge to the raid can go forward?)
• In Ohio, juries cannot impose the death penalty without first determining that the aggravating circumstances in a given case outweigh the mitigating. Death-row prisoner: The jury at my 1986 trial received guidance from the judge on mitigating factors, but not on aggravating ones, and so could not have conducted the requisite balancing. Sixth Circuit: That’s so, and it doesn’t matter that counsel did not object at the time. New sentencing hearing in 180 days or set him free.
• By allowing Uber and other ride-hailing services to operate in Chicago unencumbered by regulations that have long applied to taxicabs, have city officials violated the Equal Protection Clause? The Seventh Circuit says no. This is an IJ case.
• In 2014, Milwaukee officials removed a cap on the number of taxicabs permitted to operate in the city — thereby drastically reducing the value of incumbents’ licenses. A taking of property without just compensation? Not so, says the Seventh Circuit. The permit confers a right to operate a vehicle for hire, not a right to exclude others from doing so. This is an IJ case.
• Pharmacy: We have a First Amendment right to sell lethal injection drugs anonymously to state governments. Eighth Circuit: No need to rule on that. Missouri corrections officials need not reveal their supplier for a more salient reason: It would not advance the claims of death-row prisoners challenging the use of the drugs as cruel and unusual.
• To comply with federal safety guidelines, Lincoln, Neb.-based trucking company requires severely obese drivers to submit toa  sleep apnea test. (The condition can lead to drowsiness on the job.) One such driver declines and is fired. An Americans with Disabilities Act violation? Eighth Circuit: No.
• Roommates invite guy they met at marijuana festival to live with them, manufacture hash oil. He accidentally blows up their Bellevue, Wash., apartment. One neighbor — the city’s first female mayor — dies. Ninth Circuit: No reason to lighten the roommates’ three-year sentences and $2.8 million restitution. (The would-be manufacturer got nine years.)
• Wyoming officials: The wild horse population in our state exceeds what the land can support. Horses are dying of starvation and thirst. Rangeland is being damaged. Federal law requires the feds to remove excess horses.