Steven Menashi Explained

Steven James Menashi (born January 15, 1979)^[2] is an American lawyer, academic, and jurist who serves as a United States circuit judge of the United States Court of Appeals for the Second Circuit. Prior to his appointment to the court by President Donald Trump, he was an official in the Trump administration.

Early life and education

Menashi was born on January 15, 1979, in White Plains, New York. Menashi's grandparents were Jewish immigrants from Iraq and Ukraine; his maternal grandfather's relatives were murdered in the Holocaust.^{[3] [4]}

Menashi graduated from Dartmouth College in 2001 with a Bachelor of Arts magna cum laude. He worked at the Hoover Institution from 2001 to 2004, and concurrently studied at the Johns Hopkins University School of Advanced International Studies.^[1] From 2004 to 2005 he was an editorial writer for The New York Sun. He then attended Stanford Law School, where he was an editor of the Stanford Law Review. He graduated in 2008 with a Juris Doctor and was inducted into the Order of the Coif.^[5]

Legal career

Menashi served as a law clerk to Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit from 2008 to 2009. From 2009 to 2010, he was at Georgetown University Law Center as an Olin-Searle Fellow, a program offered by the Federalist Society. He then clerked for Justice Samuel Alito of the U.S. Supreme Court from 2010 to 2011.^[6]

From 2011 to 2016, Menashi worked in the New York City office of the law firm Kirkland & Ellis, where he became a partner. While at Kirkland & Ellis, Menashi was a Research Fellow at the New York University School of Law and the Opperman Institute for Judicial Administration for three years, from 2013 to 2016.^[7]

From 2016 to 2017, Menashi was an assistant professor of law at George Mason University's Antonin Scalia Law School, where he focused on administrative law and civil procedure.^[8]

Trump administration

In 2017, Menashi took a leave of absence from George Mason to become the Deputy General Counsel for Postsecondary Service at the United States Department of Education and served as General Counsel on an acting basis for that department as of May 24.^[9] At the Department of Education, Menashi helped devise a plan by the Department of Education to deny debt relief for thousands of students who were cheated by for-profit colleges. The plan, which used students' private Social Security data, was ruled illegal by a federal judge.^[10] The Department argued that the plan only involved the use of "aggregate, statistical data without any personal identifiers". His role as acting general counsel ended on April 23, 2018, after Carlos G. Muñiz was confirmed to that position by the U.S. Senate.^[11]

In September 2018, Menashi moved to the White House to become a Special Assistant to the President and Associate Counsel to the President.^[12] While in the Office of the White House Counsel, Menashi reportedly worked with Senior Advisor Stephen Miller on several immigration policy issues, including Trump's remain in Mexico policy and revised interpretations of the public charge rule.^[13]

Federal judicial service

Appointment

On August 14, 2019, President Donald Trump announced his intent to nominate Menashi to serve as a United States Circuit Judge of the United States Court of Appeals for the Second Circuit.^{[14] [15]} On September 9, 2019, his nomination was sent to the Senate. That same day, the American Bar Association rated Menashi as "well qualified," its highest rating.^[16]

On September 11, 2019, a heated hearing on Menashi's nomination was held before the Senate Judiciary Committee.^[17] During his hearing, Menashi was criticized by senators from both parties for refusing to answer their questions regarding the legal advice he gave on the Trump administration's immigration policies.^{[18] [19]} He was also questioned about an article he had written in the University of Pennsylvania Journal of International Law on ethnonationalism and Israel, in which he argued that Israel's Jewish identity was consistent with its status as a liberal democracy.^[20]

On November 7, 2019, his nomination was reported out of committee by a 12–10 vote.^[21] On November 13, 2019, the United States Senate invoked cloture by a 51–44 vote.^[22] On November 14, 2019, his nomination was confirmed by a 51–41 vote.^[23] He received his judicial commission on the same day. He filled the seat vacated by Dennis Jacobs, who assumed senior status on May 31, 2019.^[24]

Notable opinions

In Henry v. County of Nassau (2d Cir. 2021), Menashi ruled that a prohibition on firearms ownership based on an ex parte order of protection violates the Second Amendment.^[25]

In United States v. Donzinger (2d Cir. 2022), Menashi dissented when the Second Circuit upheld the corporate prosecution of environmental lawyer Steven Donziger.^{[26] [27]} Menashi wrote that the prosecution, which had been initiated by a judge, violated the separation of powers inherent in the United States Constitution. The Supreme Court denied review of the case, but Justice Neil Gorsuch suggested that courts considering the appointment of their own prosecutors should "consider carefully Judge Menashi's dissenting opinion in this case."^{[28] [29] [30] [31]}

In Fuld v. Palestine Liberation Organization and Waldman v. Palestine Liberation Organization (2d Cir. 2024), Menashi dissented from the Second Circuit's denial of en banc review in a decision in which it had concluded that it did not have personal jurisdiction over the Palestine Liberation Organization or the Palestinian Authority in suits concerning deaths and injuries to United States citizens from terrorist attacks overseas.

In Brinkmann v. Town of Southold (2d Cir. 2024), Menashi dissented to argue that the town of Southold, New York had violated the takings clause of the Fifth Amendment by using eminent domain to stop the property owners from building a hardware store on the land.^{[32] [33]}

In United States v. Benjamin (2d Cir. 2024), Menashi wrote an opinion reinstating bribery and fraud charges against former Lieutenant Governor of New York Brian Benjamin. The government had alleged that Benjamin promised to allocate $50,000 in state funds to a non-profit organization controlled by a real estate developer in exchange for campaign contributions from the developer. Menashi opined that the indictment alleged an explicit quid pro quo.^[34]

Donald Trump

Menashi has ruled in favor of Donald Trump in several cases.

• In CREW v. Trump (2d Cir. 2020), Menashi dissented when the en banc Second Circuit allowed an emoluments clause lawsuit to proceed against Trump, arguing that the plaintiffs lacked standing to bring their suit.^{[35] [36]}
• In Behar v. DHS (2d Cir. 2022), Menashi upheld the Secret Service's decision not to release information about persons who met with then-candidate and President-elect Trump under the Freedom of Information Act.^[37]

First Amendment

Menashi has taken a broad view of First Amendment protections.

• In A.H. v. French (2d Cir. 2021), Menashi authored a decision that prevented Vermont from barring Christian school students from a statewide tuition program.^{[38] [39]}
• In Kravitz v. Purcell (2d Cir. 2023), Menashi ruled in favor of a Jewish prisoner's religious liberty claim when prison officials prevented the inmate from observing a Jewish holiday. Menashi's opinion concluded that "a prisoner claiming a violation of the right to the free exercise of religion under Section 1983 need not make a showing of a substantial burden."
• In Slattery v. Hochul (2d Cir. 2023), Menashi wrote an opinion prohibiting the state of New York from enforcing a state labor law that would have required a pro-life "crisis pregnancy center" to hire employees who had previously had abortions. Menashi held that this violated the center's First Amendment right to freedom of expressive association.^[40]

Immigration

Menashi has issued several consequential immigration law opinions.

• In Hassoun v. Searls (2d Cir. 2020), Menashi allowed the government to hold a Palestinian man in indefinite immigration detention after he completed a prison sentence for providing material support for terrorism under a "special circumstance" exception.^[41]
• In United States v. Perez (2d Cir. 2021), Menashi wrote separately to argue that illegal immigrants do not possess Second Amendment rights because they are not citizens.^[42]
• In Bhaktibhai-Patel v. Garland (2d Cir. 2022), Menashi ruled that the district court did not have jurisdiction to review an immigration judge's order that denied an immigrant's request for withholding of removal when that immigrant illegally re-entered the U.S. after having been removed previously.^{[43] [44]}
• In Ojo v. Garland (2d Cir. 2022), Menashi dissented from the court's decision to vacate the denial of asylum for a Nigerian citizen convicted of wire fraud and identity theft charges. Menashi would have upheld the denial of asylum.^[45]

Title IX

Menashi has issued a number of opinions interpreting Title IX of the Civil Rights Act of 1964.

• In Schiebel v. Schoharie Central School District (2d Cir. 2024), Menashi wrote the majority opinion ruling that a school can be liable for discrimination under Title IX by being deliberately indifferent to the truth or falsity of a sexual misconduct allegation against a male student.^[46]
• In Soule v. Connecticut Assoc. of Schools, (2d Cir. 2023) (en banc), Menashi wrote separately to argue that a state athletic association could have been on notice that its policy, which allowed transgender athletes to participate in women's sports, violated Title IX.^[47]

Publications

• Menashi. Steven. Article III as a Constitutional Compromise: Modern Textualism and State Sovereign Immunity. 84. Notre Dame Law Review. 1135. 2009.
• Menashi . Steven . Ethnonationalism and Liberal Democracy . 32 . University of Pennsylvania Journal of International Law . 57 . 2010 .
• Ginsburg. Douglas. Douglas H. Ginsburg. Menashi. Steven. Nondelegation and the Unitary Executive. 12. University of Pennsylvania Journal of Constitutional Law. 251. 2010.
• Ginsburg. Douglas. Menashi. Steven. Rational Basis with Economic Bite. 8. New York University Journal of Law & Liberty. 1055. 2014.
• Ginsburg. Douglas. Douglas H. Ginsburg. Menashi. Steven. Our Illiberal Administrative Law. 10. New York University Journal of Law & Liberty. 475. 2016.
• Estreicher. Samuel. Samuel Estreicher. Menashi. Steven. Taking Steel Seizure Seriously: The Iran Nuclear Agreement and the Separation of Powers. 86. Fordham Law Review. 1199. 2017.
• Menashi. Steven. The Prudent Judge. Harvard Journal of Law & Public Policy

  Per Curiam

  . 2023. (symposium on the jurisprudence of Justice Samuel Alito).
• Menashi. Steven J.. Epstein. Daniel Z.. Daniel Z. Epstein. Congressional Incentives and the Administrative State. 17. New York University Journal of Law & Liberty. 172. 2024.

See also

• Donald Trump judicial appointment controversies
• List of Jewish American jurists
• List of law clerks of the Supreme Court of the United States (Seat 8)

Notes and References

1. Web site: Questionnaire for Judicial Nominees: Steven Menashi. U.S. Senate Committee on the Judiciary. November 7, 2019.
2. Web site: Steven Menashi – Nominee to the U.S. Court of Appeals for the Second Circuit . Voruganti . Harsh . 2019-09-11 . The Vetting Room . en . 2019-10-18.
3. Web site: Senators blast Trump judicial nominee for silence at hearing. Matthew. Daly. September 11, 2019. AP News.
4. Web site: Trump court pick whose family fled persecution blasts racism accusation as 'hurtful' during confirmation hearing. Ronn. Blitzer. September 11, 2019. Fox News.
5. Severino . Carrie . Who is Steven Menashi? . 20 September 2019 . National Review . September 10, 2019.
6. Web site: Supreme Court Clerk Hiring Watch: Meet Justice Thomas's Clerks . Lat . David . David Lat . April 10, 2010 . . en-US . August 14, 2019.
7. News: Latest 2nd Circ. Pick Is Trump Aide, Ex-Kirkland Partner . 20 September 2019 . Law 360 . August 14, 2019.
8. Web site: Trump Names Picks for Second Circuit, Five Other Courts. Ryan. Tim. 14 August 2019. Courthouse News. 16 August 2019.
9. Web site: Department of Education Announces More Hires. Kreighbaum. Andrew. June 1, 2017. Inside Higher Ed. en. 2019-08-22.
10. News: Appeals Court Nominee Shaped DeVos's Illegal Loan Forgiveness Effort. Green. Erica L.. 2019-11-06. The New York Times. 2019-11-22. en-US. 0362-4331.
11. Web site: Carlos Muniz Confirmed as Education Department General Counsel. Crews. Joanna. 2018-04-19. Executive Gov. en-US. 2019-08-22.
12. Web site: President Donald J. Trump Announces Appointments for the Executive Office of the President. September 6, 2018. en-US. National Archives. whitehouse.gov. 2019-08-22.
13. Web site: Martinez . Nuria Marquez . Trump tapped a Stephen Miller acolyte to be a federal judge. Immigrant rights groups aren't having it. . 2024-11-10 . Mother Jones . en-US.
14. Web site: President Donald J. Trump Announces Judicial Nominees, United States Attorney Nominees, and United States Marshal Nominees. August 14, 2019. National Archives. whitehouse.gov. August 14, 2019.
15. Web site: Holland. Jake. Trump to Tap White House Aide for N.Y.-Based Appeals Court (2). August 14, 2019. Bloomberg Law. August 17, 2019.
16. Web site: ABA Chair rating letter to Graham and Feinstein re-nomination of Steven J. Menashi to the United States Court of Appeals for the Second Circuit. William C.. Hubbard. September 9, 2019. Ethics and Public Policy Center.
17. Web site: Nominations | United States Senate Committee on the Judiciary. www.judiciary.senate.gov. September 11, 2019 .
18. Web site: Trump court pick sparks frustration for refusing to answer questions. Zilbermints. Regina. 2019-09-11. The Hill. en. 2019-09-12.
19. Web site: Republicans and Democrats hammer Trump's judicial nominee. Levine. Marianne. Politico. September 11, 2019 . en. 2019-09-12.
20. Web site: 2019-10-20 . The Jewish arguments at the heart of Trump’s judicial nominee controversy . 2024-11-10 . The Jerusalem Post JPost.com . en.
21. Web site: Results of Executive Business – November 7, 2019. Senate Judiciary Committee.
22. Web site: On the Cloture Motion (Motion to Invoke Cloture: Steven J. Menashi to be U.S. Circuit Judge for the Second Circuit). November 13, 2019. United States Senate. November 13, 2019.
23. Web site: On the Nomination (Confirmation Steven J. Menashi, of New York, to be U.S. Circuit Judge for the Second Circuit). November 14, 2019. United States Senate. November 14, 2019.
24. Web site: Seventeen Nominations and Two Withdrawals Sent to the Senate . . National Archives.
25. Web site: 2021-07-26 . The Second Amendment and Vacated Ex Parte Domestic Protection Orders . 2024-11-10 . Reason.com . en-US.
26. Web site: Chevron adversary Steven Donziger appeals conviction to U.S. Supreme Court. Reuters. September 20, 2022. May 11, 2023.
27. Web site: United States v. Donziger, No. 21-2486 (2d Cir. 2022). Justia. June 22, 2022. May 11, 2023.
28. Web site: 2023-03-30 . The Gorsuch-Menashi Doctrine . 2024-11-10 . The New York Sun . en.
29. Web site: 2023-03-28 . Do Court-Appointed Prosecutors Violate The Separation of Powers? . 2024-11-10 . Reason.com . en-US.
30. Web site: Donziger v. United States: A Constitutional Challenge to Court-Appointed Private Prosecutors Under Federal Rule of Criminal Procedure 42 . 2024-11-10 . NYU Law Review . en-US.
31. Web site: Millhiser . Ian . 2023-03-28 . Heartbreaking: The worst Supreme Court justice you know just made a great point . 2024-11-10 . Vox . en-US.
32. Web site: Panju . Arif . 2024-09-26 . Will SCOTUS take on New York’s latest eminent domain scam? . 2024-11-10 . Reason.com . en-US.
33. Web site: 2024-04-05 . Second Circuit Rules that a "Passive Park" Qualifies as a Public Use Authorizing Use of Eminent Domain - Even if this Rationale is a Pretext for a Desire to Block Private Owners' Plan to Build a Hardware Store . 2024-11-10 . Reason.com . en-US.
34. Web site: 2024-03-08 . Bribery, fraud charges reinstated against former New York Lt. Governor . 2024-11-11 . AP News . en.
35. Web site: 2020-08-17 . Second Circuit Lets Emoluments Case Against Trump Move Forward . 2024-11-11 . Law & Crime . en.
36. Web site: 2020-08-17 . Second Circuit Refuses to Take Emoluments Case En Banc . 2024-11-11 . Reason.com . en-US.
37. Web site: 2022-10-04 . Second Circuit Sua Sponte Shrinks Definition of “Agency Records” Yale Law School . 2024-11-11 . law.yale.edu . en.
38. Web site: Feed . CV News . 2021-06-03 . Court Rules Vermont Cannot Deny Aid to Catholic School Students . 2024-11-11 . CatholicVote org . en-US.
39. Web site: Hawley . Emily . contributor . Op-ed . 2021-06-04 . Vermont can't bar Christian school students from tuition program, appeals court says . 2024-11-11 . www.christianpost.com . en.
40. Web site: Contributor . Op-ed . 2023-03-01 . Court rules New York law violates family planning center's rights . 2024-11-11 . www.shorenewsnetwork.com . en-US.
41. Web site: 2nd Circ. Says Naturalized Citizens Owed Adequate Counsel - Law360 . 2024-11-11 . www.law360.com . en.
42. Web site: 2021-07-31 . Does the Second Amendment Protect Non-Citizens? . 2024-11-11 . Reason.com . en-US.
43. Web site: 2nd Circ. Turns Down Convention Against Torture Relief Claim - Law360 . 2024-11-11 . www.law360.com . en.
44. Web site: Staff . Daily Record . 2022-07-20 . Second Circuit - Order of removal: Bhaktibhai-Patel v. Garland . 2024-11-11 . NY Daily Record . en-US.
45. Web site: Trump Appointees Bianco and Menashi Tangle Over Agency Discretion in Second Circuit Asylum Case . 2024-11-11 . New York Law Journal . en.
46. Web site: Loudon . Bennett . 2024-11-04 . Second Circuit reinstates lawsuit against Schoharie County school district . 2024-11-10 . NY Daily Record . en-US.
47. Web site: En Banc Second Circuit Rules Female Athletes Have Standing To Challenge High School Conference Rule Allowing Participation Of Transgender Girls On Girls Teams . 2024-11-10 . www.schlamstone.com . en.