Sunday, September 17, 2017
The Ninth Circuit ruled on Friday that the federal Poultry Products Inspection Act did not preempt California's ban on force-feeding ducks and geese for foie gras production. The ruling means that California's ban stays on the books; this is definitely one for the birds.
In 2004, California joined a growing list of countries that ban force-feeding ducks and geese to produce foie gras. The California law doesn't ban foie gras itself, just the force-feeding method of production. Foie gras producers sued, arguing that California's ban was preempted by the federal Poultry Products Inspection Act.
The Ninth Circuit disagreed. The court said that the federal law didn't expressly preempt the California ban, because the federal law's prohibition on states from imposing "ingredient requirements" that are "in addition to, or different than" the PPIA or its regs applied to "the physical composition of poultry products," and not the way animals are raised or how they're fed (which the California ban covers). According to the court, California law
does not require that foie gras be made with different animals, organs, or physical components. Nor does it require that foie gras consist of a certain percentage of bird liver. It simply seeks to prohibit a feeding method that California deems cruel and inhumane. [The law] therefore addresses a subject entirely separate from any "ingredient requirement": how animals are treated long before they reach the slaughterhouse gates.
Moreover, the court said that the PPIA didn't field-preempt California law, because the PPIA doesn't occupy the field (and in fact allows for "extensive" state regulation). It also said that the PPIA didn't obstacle preempt California law, because California law doesn't interfere with the federal food-regulation scheme and its purposes.
Unless and until producers come up with a different way to make foie gras, this ruling will keep it out of California.
Saturday, September 16, 2017
Judge Harry D. Leinenweber (N.D. Ill.) yesterday enjoined two conditions nationwide, but declined to enjoin a third, that AG Sessions placed on a federal grant program to clamp down on sanctuary cities. The order came in the lawsuit that Chicago filed against Session.
The ruling is a partial victory for the City and partial victory for the government. It partially halts two key conditions that AG Sessions placed on Byrne Grant recipients, but upholds a third, requiring certification of compliance with Section 1373.
Recall that AG Sessions placed three conditions on a municipality's receipt of federal funds under the Byrne Memorial Justice Assistance Grant Program: (1) that a state law or practice is in place to honor a request by DHS to provide advance notice of any scheduled release date and time for a particular alien (the "notice" condition); (2) that a state law or practice permits federal agents to have access to any correctional facility to meet with aliens and interrogate them (the "access" condition); and (3) that a local government submit a certification of compliance with 8 U.S.C. Sec. 1373, the federal law prohibiting state and local laws and practices that restrict state and local officials from sending to, or receiving from, federal officials information regarding the citizenship or immigration status of any individual, and prohibiting officials from maintaining such information or exchanging it with federal officials. (the "certification" condition).
The conditions ran up against Chicago's "Welcoming Ordinance." That Ordinance prohibits any "agent or agency" from "request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by [state law], federal regulation, or court decision." It goes on to forbid any agent or agency from "disclos[ing] information regarding the citizenship or immigration status of any person."
So Chicago sued Sessions, arguing that all three conditions were unconstitutional and unlawful.
Judge Leinenweber agreed in part and disagreed in part. As to the notice and access conditions, the court said that Sessions lacked statutory authority and exceeded his power to implement these conditions. In particular, the court held that only Congress could impose these conditions, or authorize the AG to do so, and that the statutory scheme in place didn't do that. Because the court ruled on statutory grounds, it declined to rule on the constitutionality of those two provisions.
But in contrast to its ruling on the notice and access conditions, the court held that Chicago did not show a likelihood of success on the merits of its challenge to the certification condition. The court held that this condition was authorized by Congress under the Byrne Grant statute, which says that a recipient must certify that it's in compliance "with all provisions of this part and all other applicable Federal laws" (emphasis added). The court said that Section 1373 fell into that latter category, "all other applicable Federal laws."
Moreover, it held that the certification condition didn't violate the Spending Clause and the anti-commandeering principle. In particular, the court said that Section 1373 doesn't compel Chicago to do anything; instead, it merely forbids it from doing something. The court said that the anti-commandeering principle only prohibits the federal government from requiring states or state officials to act, not from prohibiting them from acting, so Section 1373 doesn't violate it.
Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. . . . Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.
But the court went on to recognize that Section 1373 raises an unanswered constitutional question: Does the provision commandeer insofar as it prevents local governments from disciplining an employee for spending time assisting in the enforcement of federal immigration law? The court punted, leaving that novel question for appeal:
[B]y leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program. . . . Here, we follow binding Supreme Court precedent and the persuasive authority of the Second Circuit, neither of which elevates federalism to the degree urged by the City here. A decision to the contrary would require an expansion of the law that only a higher court could establish.
Friday, September 15, 2017
The American Constitution Society hosted its Supreme Court Preview yesterday at the National Press Club. C-Span coverage is here. The panel included Anil Kalhan, Claire Prestel, Dale Ho, Erin Murphy, and Marty Lederman. Kara Stein introduced the program; I moderated.
Monday, September 11, 2017
Recall that last week, fifteen states and the District of Columbia filed New York v. Trump challenging the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.
Today, several other states - - - California, Maine, Maryland, and Minnesota - - - filed a complaint in the Northern District of California, California v. Department of Homeland Security, also challenging the DACA rescission making similar but not identical arguments. In the California challenge, equal protection is the sixth of the six counts, with no mention of anti-Mexican animus in the allegations. Instead, the equal protection claim contends that "rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and fu1ther their education."
However, like New York v. Trump, the California complaint includes a challenge based on the Fifth Amendment's Due Process Clause, contending in its first cause of action that:
Given the federal government's representations about the allowable uses of information provided by DACA applicants, Defendants' change in policy on when to allow the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non- citizens, is fundamentally unfair.
This "informational use" due process claim is buttressed by the California complaint's fifth cause of action sounding in equitable estoppel, a claim not made in the New York complaint. Claims similar to the New York complaint include violations of the Administrative Procedure Act and the Regulatory Flexibility Act. Factual allegations supporting these causes of action include references to the President's tweets as advancing rationales for the rescission that are absent or contrary to the Homeland Security memorandum, thus making the rescission arbitrary and capricious.
Additionally, last week in a separate complaint in Regents of the University of California v. Department Homeland Security, also filed in the Northern District of California, another challenge to the DACA rescission was filed by named plaintiff, Janet Napolitano, now Chancellor of the University of California, but also former Secretary of the Department of Homeland Security. In the University of California (UC) complaint, there is no equal protection claim, and the due process claim is third of three claims for relief and sounds in procedural due process:
¶69. The University has constitutionally-protected interests in the multiple educational benefits that flow from a diverse student body. Thousands of DACA students have earned prized places as undergraduate and graduate students at the University of California through their record of high— even extraordinary—personal achievement in high school and college. In reliance on DACA, the University has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation. If these students leave the University before completing their education, UC will lose the benefits it derives from their contributions, as well as the value of the time and money it invested in these students with the expectation that they would be allowed to graduate and apply their talents in the United States job market.
¶70. UC students who are DACA recipients also have constitutionally-protected interests in their DACA status and the benefits that come from that status, including the ability to work, to pursue opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.
¶71. The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the University and its students of these and other constitutionally-protected interests without due process of law. Such deprivation occurred with no notice or opportunity to be heard.
The other two causes of action in the UC complaint are based on the Administrative Procedure Act, with the first claim for relief contending the rescission is "arbitrary and capricious" and the second cause of action objecting to lack of notice and comment. However, the "arbitrary and capricious" claim for relief does include a reference to the Fifth Amendment:"The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are contrary to the constitutional protections of the Fifth Amendment."
It may be that even more constitutional and statutory challenges to DACA are forthcoming as protests against the rescission continue.
[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by via]
Friday, September 8, 2017
In a lengthy opinion in Petrello v. City of Manchester, United States District Judge Landya McCafferty found the City's efforts to control "panhandling" through its enforcement of a disorderly conduct statute and through an ordinance directed at panhandling both violated the First Amendment.
Ms. Petrello was arrested under the disorderly conduct statute although her panhandling was "passive" and she was not in the roadway. Any "disorder" was actually caused by a third party driving a Cadillac who stopped the car to hand something to Petrello, who did not step into the road.
The Cadillac then drove through the intersection, but the light turned red and the Jeep was unable to make it through the intersection. If the Cadillac had not stopped at the green light, then the Jeep would have made it through the intersection while the light was still green and would not have had to wait for the next green light.
Judge McCafferty found that the Manchester Police Department (MPD) policy was a sufficient basis for liability. The policy was clearly directed at enforcing the statute against even passive panhandling and under the First Amendment, she stated that the policy was content-neutral, because the discussions of the anti-handling policies were "not in terms of any message the panhandler is conveying, such as requests for donations." Nevertheless, she reasoned that "in the end," she "need not resolve the question of whether the MPD Policy is content based, because it does not survive scrutiny as a content-neutral regulation." Applying the doctrine of Ward v. Rock Against Racism (1989), Judge McCafferty found that while public safety and free flow of traffic are significant government interests, the policy burdens more speech than necessary. Essential to this conclusion was the fact that the statute was applied to Ms. Petrello who did not step into the street, and that her speech should not be curtailed by third party driving a Cadillac or traffic lights that turned red too quickly. Judge McCafferty issued an injunction and ruled this could proceed to trial on damages.
In its other attempt to curtail panhandling. the City of Manchester passed an ordinance providing:
“No person shall knowingly distribute any item to, receive any item from, or exchange any item with the occupant of any motor vehicle when the vehicle is located in the roadway."
Again, Judge McCafferty found the ordinance content-neutral and again that the ordinance violated the First Amendment. Again, Judge McCaffery found that while the government interests were valid, the Ordinance was not sufficiently tailored to those interests for four main reasons: (1) the Ordinance bans roadside exchanges that do not obstruct traffic or pose safety risks; (2) the Ordinance is geographically overinclusive because it applies citywide; (3) the Ordinance is underinclusive because it penalizes only pedestrians, not motorists; and (4) the City has less speech- restrictive means available to address its concerns. In reaching these conclusions, Judge McCafferty relied in part on the Ninth Circuit en banc decision in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (2011) regarding day labor solicitation.
The opinion also addresses Petrello's standing to challenge the ordinance since she was not charged under it, but only the disorderly conduct statute, finding that she satisfied Article III standing although the City argued she had no imminent injury. The opinion rejects Petrello's Fourth Amendment claim based on her original arrest and an equal protection challenge to the implementation of the statute.
The City could certainly appeal to the First Circuit, but it probably has little chance of success.
[image: William-Adolphe Bouguereau, Petites Mendiantes (1880) via]
Wednesday, September 6, 2017
In a Complaint filed today in the Eastern District of New York in New York v. Trump, fifteen states and the District of Columbia have challenged the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, and is now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky. The complaint describes the rescission as "animus-driven."
The first two causes of action of the five total causes of action in the 58 page Complaint allege constitutional infirmities.
The first cause of action is based on the Equal Protection component of the Due Process Clause of the Fifth Amendment, and alleges that the rescission targets individuals based on their national origin and is based, at least in part, by the desire to harm a particular group. Paragraphs 239-252 detail the statements by Trump, both as a candidate and as President, expressing anti-Mexican sentiments. Part of these allegations include the controversial pardon of former Maricopa County, Arizona Sheriff Joe Arpaio. As for the timing of the rescission, the complaint also contains allegations regarding Texas, alleging that a "demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas" (¶256) and then detailing federal court findings that Texas has been found liable for "engaging in unlawful discrimination based on race and/or national origin." Among the cases cited is the recent Perez v. Abbott concerning redistricting.
The second cause of action sounds in Due Process, arguing a breach of "fundamental fairness" relating to information use. Specifically, ¶278 avers:
Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non-citizens, is fundamentally unfair.
Two other causes of action relate to the Administrative Procedure Act - - - arbitrary and capricious action and failure to follow notice and comment - - - while the final cause of action is based on the Regulatory Flexibility Act, requiring federal agencies to "analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for comment."
The extensive allegations in the complaint by individual states include statements regarding each state's harm if DACA were rescinded in an effort to establish each state's standing. In addition to New York, the plaintiffs are Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. Generally, the allegations pertaining to each states detail the effect on their state colleges and universities, state companies, and state economies.
The complaint is a serious challenge to the DACA rescission and in some ways is similar to the ongoing state challenges to the so-called Muslim travel ban, another highly controversial Trump administration action still in litigation.
UPDATE: Additional complaints discussed here.
Sunday, September 3, 2017
In its unanimous panel opinion in D.T. v. Patton (and the Denver Department of Health and Human Services), the Tenth Circuit recognized a claim for substantive due process and rejected qualified immunity based on a social worker's removal of the adolescent child, D.T., from his mother and recommending to the court that D.T. be placed with his father, who sexually abused him.
The court distinguished the landmark case of DeShaney v. Winnebago County Department of Social Services (1989), in which the United States Supreme Court held, in somewhat similar circumstances, that state officials are not liable for private-violence under the Fourteenth Amendment. The court relied on the "danger-creation" exception to the DeShaney doctrine, which allows liability if “a state actor affirmatively acts to create, or increase a plaintiff’s vulnerability to, danger from private violence." The court cited the Tenth Circuit's 2001 decision in Currier v. Doran, noting that "all circuits" have carved out a similar exception (in addition to the special-relationship exception), although the United States Supreme Court has not ruled on such exceptions.
Writing for the majority, Judge Scott Matheson extensive opinion discussed both DeShaney and Currier, including the elements developed in Currier:
- the charged state entity and the charged individual actors created the danger or increased plaintiff’s vulnerability to the danger in some way;
- plaintiff was a member of a limited and specifically definable group;
- defendants’ conduct put plaintiff at substantial risk of serious, immediate, and proximate harm;
- the risk was obvious or known;
- defendants acted recklessly in conscious disregard of that risk; and
- such conduct, when viewed in total, is conscience shocking.
Judge Matheson's opinion then analyzed analyzed each of these. Of central importance was the fact that the social worker knew of the father's previous conviction of attempted sexual assault on a minor, his step-daughter, as well as the father's violation of probation for contacting her and his failure to fulfill his sex offender treatment with regard to that conviction, in addition to "other charged offenses including misdemeanor wrongs to minors and misdemeanor domestic violence." The social worker omitted these facts as well as her concerns about them from the court because of her supervisor's comments and her resultant fear she would be terminated from her employment if she shared these facts. Moreover, she failed to investigate D.T.'s situation once he was placed in his father's home, and recorded her visits to the home that did not actually occur.
On qualified immunity, the court found that Currier clearly established a right that she violated. The court rejected the social worker's arguments attempting to draw lines between her pre-placement and post-placement conduct. The court also rejected the social worker's claims to avoid responsibility by sharing it with her "team" or assigning it to her supervisor. The court found that she was the major actor and withheld facts from her team. And while her supervisor might also be liable,
Ms. Patton’s reasons for deleting parts of her initial report to the juvenile court that outlined her concerns about T.D.’s placement with Mr. Duerson (i.e., to avoid being fired) support that she knew of the danger posed to T.D. in Mr. Duerson’s home and that she consciously disregarded that risk.
The court thus affirmed the grant of summary judgment to D.T. by the district judge.
Concurring, Judge Mary Beck Briscoe, who has been on the Tenth Circuit since 1995, expressed her belief that Currier was wrongly decided in 2001 and conflicts with DeShaney. For Judge Briscoe,
As a general matter, I find it hard to conclude that a social worker can be “responsible for” the independent decision of a judge who ultimately orders a change of custody. But, even if we assume such responsibility exists, we cannot transform omissions or failures to act into affirmative conduct merely by considering them “in the general context of” a custody recommendation. The only affirmative act that could be found in Currier is the recommendation itself, which, in my view is no different from the affirmative recommendation in DeShaney that Joshua be returned to his father’s custody. . . . This makes the state the permanent guarantor of a child's safety.
Yet the United States Supreme Court failed to grant certiorari in Currier and there is little here to make it likely that a petition for certiorari would not have the same result.
[image "Young Boy Singing" circa 1650 via]
Thursday, August 31, 2017
Judge Orlando Garcia (W.D. Tx.) yesterday issued a preliminary injunction, in City of El Cenizo v. Texas, the case testing the constitutionality of Texas's anti-sanctuary cities law. The ruling temporarily halts key portions of the law; it's a victory for the plaintiffs.
But it's also preliminary--and so goes to the plaintiffs' likelihood of success on the merits, and not the merits themselves--and is sure to be appealed.
In short, the ruling temporarily halts the provisions prohibiting local governments from preventing officers from assisting or cooperating with federal authorities, "endorsing" sanctuary policies, and adopting or enforcing policies that "materially limit" enforcement of immigration laws, and a provision requiring law enforcement agencies to "comply with, honor, and fulfill" any detainer request by ICE. Other provisions of the law remain effective.
Here's a more complete run-down:
Prohibition on Preventing Communication
Section 752.053(b) prohibits local departments and local entities from preventing their employees from obtaining certain information about the immigration status of a detainee, maintaining that information, and sharing it with federal and state authorities. In particular, the provision prohibits local governments from preventing their employees from:
(1) Inquiring into the immigration status of a person under a lawful detention or under arrest.
(2) With respect to information relating to the immigration status, lawful, or unlawful, of any person under a lawful detention or arrest, including information regarding the person's place of birth:
a. Sending the information to or requesting or receiving the information from [USCIS], [ICE], or another relevant federal agency;
b. Maintaining the information; or
c. Exchanging the information with another local entity or campus police department or a federal or state governmental entity.
(3) Assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.
(4) Permitting a federal immigration officer to enter and conduct immigration enforcement activities.
The court said that the inquiry provision under (b)(1) and the information-sharing provision under (b)(2) were not preempted under the Immigration and Naturalization Act (but the court emphasized that the inquiry under (b)(1) could take place only during lawful detention or arrest).
But on the other hand, the court held that the enforcement-assistance-provision in (b)(3) was preempted (field and conflict), because federal law provides for "exacting requirements" for state and local officers to perform the functions of immigration officials--requirements that the state cannot circumvent through a law like (b)(3).
Section 752.053 says that a local entity (including an officer or employee of a division) or campus police department may not "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws . . . ." A separate section provides for enforcement, including civil penalties and removal from office upon a violation, which could be shown "with evidence, including evidence of a statement of a public officer."
The court said that this provision violated free speech. The court held that "endorse" was unconstitutionally overbroad and vague, and that the provision constituted illegal viewpoint discrimination (because it banned speech on one side of the issue, but not the other).
Prohibitions on Local Pattern or Practice Limiting Enforcement
Other sections of SB 4 prohibit localities from adopting a "pattern or practice" that "materially limit[s]" the enforcement of immigration laws, or that "materially limit[s]" officers from "assisting or cooperating" with a federal immigration officer "as reasonable or necessary . . . ."
The court said that "materially limit" is unconstitutionally vague on its face, even if other portions of the provisions were not, including the enumerated list of specifically prohibited activities in Section 752.053(b), discussed above.
Detainer Requests and Detention
Yet other sections, and some in Section (b), above, require local entities to fulfill all ICE detainer requests, and, as described above, prohibit local governments from preventing officers from inquiring as to detainees' immigration status.
The court said that ICE-detainer provisions violated the Fourth Amendment, because they "mandate that local officials effect seizures requested by ICE [without suspicion of a crime] while prohibiting those officials from making an independent, particularized assessment of whether probable cause of a crime exists to support that seizure in every case . . . ."
But as to the prohibition on preventing officers from inquiring into a detainee's immigration status, the court ruled that "it is possible to construe [this] to avoid violating the Fourth Amendment," and therefore that the plaintiffs failed to show that they were likely to succeed on the merits.
Wednesday, August 30, 2017
The D.C. Circuit ruled yesterday that Libertarian and Green Party candidates in the 2012 presidential election lacked standing to challenge their exclusion from presidential debates under antitrust laws and the First Amendment. The ruling denies the candidates monetary damages and declaratory relief and ends their case.
The case arose when Libertarian Party candidates Gary Johnson and James Gray and Green Party Candidates Jill Stein and Cheri Honkala failed to meet the threshold 15% support to participate in the 2012 national debates. They sued the Commission on Presidential Debates and the Obama and Romney campaigns, which set the 15% threshold, for violations of antitrust laws and the First Amendment.
The court ruled that the plaintiffs lacked statutory standing to bring their antitrust claim. It wrote that "antitrust standing requires a plaintiff to show an actual or threatened injury 'of the type the antitrust laws were intended to prevent,'" but that the plaintiffs "define[d] their injuries as millions of dollars in free media, campaign donations, and federal matching funds--injuries to them as individual candidates in a political contest for votes." This wasn't the kind of injury to "commercial competition" contemplated by the Sherman Antitrust Act, so the plaintiffs lacked antitrust standing.
Having ruled that the plaintiffs lacked antitrust standing, the court declined to say whether they also lacked Article III standing. This was partly in order to avoid a constitutional question--whether a court ruling in favor of the plaintiffs would infringe the Commission's First Amendment rights. As the court explained, quoting Perot v. Federal Election Commission (D.C. Circuit): "[I]f this [C]ourt were to enjoin the [Commission] from staging the debates or from choosing debate participants, there would be a substantial argument that the [C]ourt would itself violate the [Commission's] First Amendment rights."
As to the First Amendment claim, the court merely said that "[n]one of [the plaintiffs'] allegations articulate a clear legal claim, let alone identify a cognizable injury. To make matters worse, the Complaint omits entirely any allegation of government action, focusing entirely on the actions of the nonprofit Defendants."
Judge Pillard concurred in the judgment but wrote separately to argue that the court should have considered Article III standing, should have ruled in favor of the plaintiffs on that point, and should have dismissed the complaint on the merits.
Tuesday, August 29, 2017
In his opinion in Palin v. The New York Times, Senior United States District Judge Jed Rakoff dismissed Sarah Palin's complaint for defamation for failure to satisfy First Amendment requirements under New York Times v. Sullivan.
Sarah Palin's complaint was based on a New York Times editorial written after James Hodgkinson "opened fire on members of Congress" and others playing baseball in a field in Virginia in June. The editorial decried how "vicious" American politics had become. Importantly, it referenced a previous act of violence by Jared Lee Loughner, resulting in deaths and the injury of Congresswoman Gabriel Giffords. The editorial stated that "the link to political incitement was clear" and that before the Loughner shooting "Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs." In the internet-published editorial, "circulated" was hyperlinked to a story which did not support that any link was established.
Judge Rakoff opined that on its face, the complaint was not sufficient to meet the plausibility standard for dismissal relevant to the First Amendment requirement of actual malice under New York Times v. Sullivan applicable to Palin, an "acknowledged public figure." But Judge Rakoff held an evidentiary hearing directed in part to determining actual malice of the editorial writer(s). The Judge found no actual malice, noting that research failures or mistakes do not rise to that level, that the hyperlink's lack of support for the proposition weighed against malice, and that the quick corrections by the newspaper also weighed against actual malice. Judge Rakoff rejected Palin's contention that the editor, James Bennet, was hostile noting that Bennet's "long association with liberal publications" and relation to a political figure opposed to Sarah Palin could not constitute actual malice. "If such political opposition counted as evidence of actual malice, the protections imposed by Sullivan and its progeny would swiftly became a nullity." Judge Rakoff rejected the argument that the New York Times' "collective knowledge and intent" was relevant, although the judge stated that even if it was, the malice standard was not met.
each and every item of alleged support for plaintiffs claim of actual malice consists either of gross supposition or of evidence so weak that, even together, these items cannot support the high degree of particularized proof that must be provided before plaintiff can be said to have adequately alleged clear and convincing evidence of actual malice.
We come back to the basics. What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin they’re very rapidly corrected. Negligence this maybe; a defamation of a public figure it plainly is not.
The court dismissed the complaint with prejudice. It is uncertain whether Palin would appeal.
In an exceedingly brief Order signed only by Associate Justice Samuel Alito, the United States Supreme Court in Abbott v. Perez, stated:
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 15, 2017, is hereby stayed pending receipt of a response, due on or before Tuesday, September 5, 2017, by 3 p.m., and further order of the undersigned or of the Court.
Recall that the three-judge court, after an extensive opinion, ultimately directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."
As we discussed, the extensive opinion by the three judge court found constitutional violations, including intentional discrimination, but also rejected several of the challengers' claims.
[image: Caricature of Associate Justice Alito by Donkey Hotey via ]
Monday, August 28, 2017
Late Friday August 25, President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." By Monday, there were at least three lawsuits challenging the action on constitutional grounds.
A month before, Trump had tweeted his thoughts regarding transgender individuals in the military, reportedly taking military officials by surprise.
Soon after the tweets, the complaint in Doe v. Trump was filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) in the District Court for the District of Columbia, challenging any military action on the basis of a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.
This complaint is now joined by two others: The complaint in Stone v. Trump was filed by lawyers for the ACLU in the United States District Court for the District of Maryland, challenging the 3 policies of the military ban - - - existing troops, enlistment of new troops, and medical care - - - as well as the policies taken as a whole. Again, the two constitutional issues are equal protection and due process. The complaint in Karnoski v. Trump was filed by lawyers for Lambda Legal Defense and Education Fund in the United States District Court for the Western District of Washington, challenging the policy on the basis of equal protection, due process, as well as the First Amendment's free speech clause.
On the core challenge of equal protection - - - as applied to the federal government through the Fifth Amendment - - - the complaints vary in their detail and possible theories. In Doe, the NCLR and GLAD complaint, paragraph 71 reads: "The categorical exclusion of transgender people from military service lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." In Stone, the ACLU complaint, paragraph 140 contends that transgender classifications should be treated as sex classifications, deserving heightened scrutiny, and additionally in the next paragraph that transgender status itself warrants heightened scrutiny because "men and women who are transgender, as a class" have historically been subject to discrimination, have a defining characteristic that frequently bears no relation to an ability to contribute to society, exhibit immutable or distinguishing characteristics that define them as a discrete group, and are a minority with relatively little political power. In Karnoski, the complaint contends that in addition to sex-discrimination, discrimination on the basis of transgender status "bears all the indicia of a suspect classification requiring strict scrutiny by the courts," enumerating similar criteria including history of discrimination, discrete and insular minority, no relation to ability to contribute to society, and arguing the characteristic sometimes expressed as immutability in stating that "gender identity is a core, defining trait" so "fundamental to one's identity and conscience that a person should not be required to abandon it as a condition of equal treatment."
However, whatever standard of scrutiny is applied, all the complaints contend that there is not a sufficient government interest in the policy - - - an argument that may well lead into judicial inquiry into Trump's unorthodox announcement on Twitter as well as any details of thoughtful decision-making.
While there has been some reporting that military officials have discretion in implementing Trump's directives, professors of military law have issued a worth-reading policy statement that the discretion is quite limited; they also argue that the directives are discriminatory and based on inaccuracies.
This litigation is certain to accelerate. Expect more action from the NCLR and GLAD action filed before the Friday policy announcement and requests for preliminary relief.
Wednesday, August 23, 2017
Ninth Circuit Says No Qualified Immunity for Off-Duty but Uniformed Officer Acting as Private Security Guard
In an apparent first in the circuits, the Ninth Circuit ruled today that an off-duty but uniformed police officer who was acting as a private security guard could not assert qualified immunity in a suit for a constitutional tort against him. The court went on to say that a reasonable jury could have found for the plaintiff on the merits, so remanded the case for further proceedings.
The case arose when the Kyo-ya Hotel and Resort hired Honolulu Police Department Officer Kinchung Chung as a "special duty" officer to provide security for a New Year's Eve party. Chung was off official duty, but he nevertheless wore his police uniform. During the party, Chung detained Dillon Bracken, a hotel patron who crashed the party, and stood by while hotel security guards assaulted Bracken.
Bracken sued Chung for constitutional torts under 42 U.S.C. Sec. 1983. Chung moved to dismiss, arguing that he enjoyed qualified immunity. The Ninth Circuit disagreed.
The court first noted that state action for the purpose of Section 1983 isn't coextensive with state action for the purpose of qualified immunity. That's because Section 1983 is designed "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims," whereas qualified immunity "protect[s] government's ability to perform its traditional functions."
That said, the court went on to rule that Chung couldn't claim qualified immunity. Applying the Supreme Court's two-part test, the court wrote,
First, he has shown no "firmly rooted" tradition of immunity for off-duty or special duty officers acting as private security guards. . . . Second, Chung has not shown that the policies underpinning qualified immunity warrant invoking the doctrine here. In detaining Bracken, Chung did not act "in performance of public duties" or to "carry out the work of government."
The case appears to be the first circuit court ruling on whether an off-duty police officer acting as a private security guard can claim qualified immunity.
The Third Circuit ruled yesterday that a plaintiff couldn't bring a First Amendment claim against a TSA officer after the officer caused the plaintiff to be detained and charged with making a bomb threat at airport security. The case, which applied the Supreme Court's recent Bivens ruling, Ziglar v. Abassi, walks back circuit law authorizing a Bivens claim for First Amendment violations, and leaves plaintiffs with no federal judicial remedy for a TSA officer's violation of First Amendment rights.
The ruling is a faithful application of Ziglar, but also illustrates the sweep and significance of that decision in restricting constitutional tort claims, especially in areas in any way touching on national security.
The case arose when Roger Vanderklok attempted to pass through Philadelphia airport security with a length of PVC pipe, capped at both ends and containing a watch and heart-monitor for a half-marathon that he intended to run in Miami. TSA employee Charles Kieser performed a secondary screening, which Vanderklok alleged was unduly aggressive. Vanderklok said that he intended to file a complaint; Kieser then called the Philadelphia police and falsely reported that Vanderklok threatened to bring a bomb to the airport. Vanderklook was arrested and charged, but later acquitted, after airport surveillance footage undermined Kieser's story.
Vanderklok sued Kieser for a variety of violations, including a First Amendment violation, pursuant to Bivens. (The Third Circuit only addressed the First Amendment claim.) The court walked back its own circuit law, which applied Bivens to First Amendment claims, and ruled that Bivens didn't "extend" to Vanderklok's First Amendment claim.
The court noted that airport security created a new Bivens context, and that Bivens law had changed:
Our past pronouncements are thus not controlling in the specific circumstances now at issue. It is not enough to argue, as Vanderklok does, that First Amendment retaliation claims have been permitted under Bivens before. We must look at the issue anew in this particular context, airport security, and as it pertains to this particular category of defendants, TSA screeners.
Since Bivens was decided, judicial attitudes about the creation of new causes of action have changed considerably. Courts will no longer imply rights and remedies as a matter of course, "no matter how desirable that might be as a policy matter, or how compatible with the statute [or constitutional provision]." "Given the notable change in the [Supreme] Court's approach to recognizing implied causes of action . . . the Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity."
(Cites to Ziglar omitted.)
As to the Bivens analysis, the court said first that Vanderklok didn't have a remedy under the Federal Tort Claims Act, but may have had a remedy under the DHS Traveler Redress Inquiry Program.
Ultimately, it didn't matter, though, because Vanderklok's claim failed on the second Bivens inquiry. In particular, the court said second that the special factor of national security counseled against a Bivens remedy here:
A special factor counseling hesitation in implying a Bivens action here is that Vanderklok's claims can be seen as implicating "the Government's whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security." In language laden with separation-of-powers concerns in the context of foreign affairs, national security, and defense, the court wrote that it's up to Congress, not the courts, to create a remedy for constitutional violations in this kind of situation.
The court added a final "practical concern" to authorizing a Bivens remedy. It wrote that because TSA employees aren't typically law enforcement officers, they aren't trained in probable cause determinations of the type that would've been necessary here. Therefore, the court said, "a Bivens claim is poorly suited to address wrongs by line TSA employees. Indeed, the inherent uncertainty surrounding the probable cause standard is itself a factor counseling hesitation."
The ruling ends Vanderklok's First-Amendment portion of his lawsuit.
Tuesday, August 22, 2017
In his opinion in González v. Douglas, United States Circuit Judge A. Wallace Tashima, sitting by designation in the District of Arizona, found that Arizona Revised Statutes §§15-111 and 15-112, the so-called anti-ethnic studies law eliminating the Tucson Unified School District's Mexican-American Studies (MAS) program violated the Fourteenth and First Amendments.
Recall that the law, passed in 2010, prohibits any school or charter school from including in its program of instruction any courses or classes that:
- Promote resentment toward a race or class of people;
- Are designed primarily for pupils of a particular ethnic group; or
- Advocate ethnic solidarity instead of the treatment of pupils as individuals
Recall also that in 2013, Judge Tashima upheld most of the statute in a facial challenge based on the First and Fourteenth Amendments on summary judgment.
On appeal, in Arce v. Douglas, the Ninth Circuit concluded that subsections (3) and (4) of the statute, while not facially discriminatory, raised Equal Protection Clause issues because of evidence of their discriminatory purpose in enactment or enforcement, and found there might be First Amendment viewpoint discrimination, and remanded the case.
In his opinion on remand, Judge Tashima found both an equal protection and First Amendment violation after a non-jury trial in an opinion with extensive findings of fact. As the Ninth Circuit had instructed, Judge Tashima considered the equal protection issue regarding racial intent in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:
- (1) the impact of the official action and whether it bears more heavily on one race than another;
- (2) the historical background of the decision;
- (3) the specific sequence of events leading to the challenged action;
- (4) the defendant’s departures from normal procedures or substantive conclusions; and
- (5) the relevant legislative or administrative history.
Judge Tashima's opinion carefully analyzes each of the factors. He noted that the anonymous blog posts of then-Senator John Huppenthal, who was chairman of the Senate Education Accountability and Reform Committee at the time the statute was passed, were "the most important and direct evidence that racial animus infected the decision to enact A.R.S. § 15-112." Judge Tashima rejected the defendants' argument that Huppenthal’s public statements, which were facially neutral as to race, should be considered more probative of his true intent. Instead,
The blog comments are more revealing of Huppenthal’s state-of-mind than his public statements because the guise of anonymity provided Huppenthal with a seeming safe-harbor to speak plainly. Huppenthal’s use of pseudonyms also shows consciousness of guilt. Had Huppenthal, a public official speaking in a public forum on a public issue, felt that his inflammatory statements were appropriate, he would not have hidden his identity.
In looking at the legislative history, Judge Tashima also focused on Huppenthal, who along with other officials used "code words" to refer to Mexican-Americans. These code words included “Raza,” “un-American,” “radical,” “communist,” “Aztlán,” and “M.E.Ch.a,” were employed as derogatory terms. "In Huppenthal’s own words, the term “Raza” became “shorthand for . . . communicating with Republican primary voters” in the Tucson community." Then, considering the application of the statute to the Tucson program, Judge Tashima noted that Huppenthal had become Superintendent of Public Instruction, with an enforcement process rife with irregularities. Essentially, it seemed that Huppenthal and other officials, believed they knew what really happened in the classrooms, with no need to investigate or believe evidence contrary to their preconceived notions. In sum, "the passage and enforcement of the law against the MAS program were motivated by anti-Mexican-American attitudes."
On the First Amendment claim, Judge Tashima relied upon Island Trees Union Free Sch. Dist. No. 26 v. Pico (1982), that there may be a First Amendment violation if the reasons offered by the state, "though pedagogically legitimate on their face, in fact serve to mask other illicit motivations." Judge Tashima found that while the "stated policy" of the statute was to "reduce racism in schools, which is a legitimate pedagogical objective," the plaintiffs' argument that this was only a pretextual objective, and that the "statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons was valid, "because both enactment and enforcement were motivated by racial animus" as found in deciding the Fourteenth Amendment claim.
In its opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, a divided panel of the Second Circuit affirmed the district judge's holding that the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment.
As the opinion by Judge Barrington Parker states:
We arrive at essentially the same conclusion as the district court. Specifically, we agree that: (i) the Ordinance restricts speech based on its content and is therefore subject to the First Amendment; and (ii) the Ordinance fails the Central Hudson test because it is an overbroad commercial speech prohibition.
Like the district judge, the Second Circuit carefully applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980). The court rejected the Town's argument that "each proposed employment transaction by a day laborer whom the Ordinance targets would be an under-the-table illegal employment arrangement, in violation of immigration, tax, and labor laws," and thus concerned illegal activity removing it from Central Hudson's first prong. Instead, the court quoted the district judge's interpretation that the ordinance clearly applied to any person.The court also noted the similar conclusion by the Ninth Circuit in its 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.
In applying the remainder of the Central Hudson test, while the Second Circuit majority found that there was a substantial interest in traffic safety and that the ordinance sought to directly advance that interest, it concluded that the ordinance was not narrowly drawn: "The Ordinance does not require any connection between the prohibited speech—solicitation of employment—and the asserted interest—traffic and pedestrian safety." Moreover, the court also found
it significant that the Ordinance does not apply to the most common forms of solicitation involving the stopping of vehicles on public rights of way, such as the hailing of a taxi or a public bus. These exemptions strongly suggest that in the great majority of situations, stopping a vehicle on a public right of way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town’s actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue.
Thus, the majority concluded that the ordinance violated the First Amendment.
The majority also affirmed the district judge's conclusion that the plaintiff organizations had standing to challenge the ordinance; dissenting Judge Dennis Jacobs vehemently disagreed. Judge Jacobs stressed that the Second Circuit disapproves of "representational standing," requiring that the organization have injury as an organization. He characterized plaintiff Centro de la Comunidad Hispana de Locust Valley (“Centro”) as an organization that barely exists except as a "vehicle" for the litigation. (To call it an “unincorporated membership organization” is "a boast."). He noted that the plaintiff, The Workplace Project, is not in the Town of Oyster Bay but in the Town of Hempstead and that any "supposed interference with the organizational mission of serving day laborers is conjectural, vague, and generalized." Without discussing Central Hudson, dissenting Judge Jacobs also concluded that while the majority's analysis has "persuasive force" as to a portion of the ordinance, its remedy of injunction against the entire ordinance was too broad.
Despite the split in the panel opinion, this may be the end of the litigation for the Oyster Bay ordinance.
Saturday, August 19, 2017
The Fifth Circuit ruled this week that an organization had standing to challenge Texas's restriction on a voter's use of an interpreter under the Voting Rights Act. But at the same time, the court said that the district court's injunction was too broad. The ruling, a victory for the plaintiffs, nevertheless sends the case back to the district court for a more narrowly tailored injunction.
The case arose when the Organization for Chinese Americans stepped-in to a lawsuit challenging Texas's law that limits a non-English-speaking voter's use of an interpreter at the polls. Texas law says that such a voter can use an interpreter "outside the ballot box," but that the interpreter must "be a registered voter of the county in which the voter needing the interpreter resides." OCA argued that the provision violated Section 208 of the VRA, which says that "[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union."
The court ruled that OCA had organizational standing, because, as an educational organization, it had to ramp up its educational efforts in response to Texas's law. In particular,
OCA calibrated its outreach efforts to spend extra time and money educating its members about these Texas provisions and how to avoid their negative effects. Specifically, OCA employees and volunteers must carefully explain to those it contacts, in the language they understand, that when they bring an interpreter to a Texas polling location, the interpreter must identify his or herself as an "assistor" rather than as an "interpreter" to avoid being turned away under Texas law . . . .
The court went on to reject Texas's claim of sovereign immunity, because OCA sought only declaratory and injunctive relief (and not monetary damages).
On the merits, the court concluded that the Texas provision violated Section 208 of the VRA, but that the district court went too far in enjoining "any provision of its Election Code to the extent it is inconsistent with the VRA." The court remanded the case for a more narrowly tailored injunction.
The Sixth Circuit ruled yesterday that a group of plaintiffs, including taxpayers with overseas accounts and Senator Rand Paul, lacked standing to challenge the reporting and penalty provisions under the Foreign Account Tax Compliance Act. The ruling ends this challenge.
The FATCA imposes certain reporting requirements, and provides for penalties for noncompliance, on individual taxpayers and foreign financial institutions ("FFIs") with overseas accounts. It also requires FFIs to withhold 30% of every payment made by the FFI to a noncompliant account holder.
In order to implement the FATCA and facilitate the FFIs' disclosure of financial-account information to the IRS, the IRS has entered into a number of intergovernmental agreements ("IGAs").
Separately, the Bank Secrecy Act imposes a foreign account reporting requirement on U.S. citizens living abroad who have aggregate foreign-account balances over $10,000. The Act also imposes a penalty of 50% of the value of the reportable accounts, or $100,000, whichever is greater.
Several individuals with foreign accounts and U.S. Senator Rand Paul sued, arguing that the provisions violate equal protection (by treating citizens living overseas differently than citizens living in the U.S.); that the penalties constitute excessive fines; that the reporting requirements violate the plaintiffs' right to privacy; and that the IRS lacked authority to enter into the IGAs without Senate advice and consent.
The Sixth Circuit didn't touch the merits, however, and instead ruled that the plaintiffs lacked standing. As to most of the plaintiffs, the court said that they weren't actually harmed, because "no Plaintiff has alleged any actual enforcement of FATCA such as a demand for compliance with the individual-reporting requirement, the imposition of a penalty for noncompliance, or an FFI's deduction of the Passthru Penalty from a payment to or from a foreign account."
Moreover, the court said that no plaintiff could satisfy the standard for a preenforcement challenge, because "no Plaintiff claims to hold enough foreign assets to be subject to the individual-reporting, and, as a result, no Plaintiff can claim that there is a 'credible threat' of" enforcement against them.
The court rejected some plaintiffs' claims of harms that arose apart from FATCA's reporting requirements and penalties, because those harms weren't fairly traceable to the FATCA. Finally, the court said that Senator Paul lacked standing under the no-legislator-standing rule. "Rather, Senator Paul has a remedy in the legislature, which is to seek repeal or amendment of FATCA itself, under the aegis of which Treasury is executing the IGAs.
Friday, August 18, 2017
The Eighth Circuit ruled this week that Planned Parenthood patients didn't have an individual right to sue Arkansas when the state terminated its Medicaid provider agreement with the organization. But the two judges in the majority differed as to their reasoning, and a third judge sharply dissented. The ruling creates a circuit split on the question and sets the case up for possible en banc review or even cert.
The issue in the case was whether Planned Parenthood patients could sue the state under Section 23(A) of the Medicaid Act and Section 1983. Here's how it works: The Medicaid Act requires the Secretary of HHS to "approve any plan which fulfills the conditions specified in subsection (a)." Subsection (a), in turn, says that "[a] State plan for medical assistance must" satisfy certain conditions, including the one at issue here, Section 23(A), that is, that the state plan must "provide that . . . any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services requires . . . who undertakes to provide him such services."
So the issue was whether this last provision created a private right of action for the patients. The court said no.
Judge Colloton wrote that the provision didn't create a private right of action, because recent Supreme Court doctrine set a higher standard for determining whether a congressional act created an individual cause of action, and that standard wasn't met here. Judge Colloton explained:
There was a time, illustrated by Wilder v. Virginia Hospital Association when the Medicaid Act was deemed to create an enforceable right if the provision in question was "intend[ed] to benefit the putative plaintiff." Starting from that premise, Wilder held that the Boren Amendment to Section 13(A) of the Medicaid Act created a federal right for providers that was enforceable under Section 1938.
Later decisions, however, show that the governing standard for identifying enforceable federal rights in spending statutes is more rigorous. It is not enough, as Wilder and Blessing v. Freestone might have suggested, to show simply that a plaintiff "falls within the general zone of interest that the statute is intended to protect." It is now settled that nothign "short of an unambiguously conferred right" will support a cause of action under Section 1983.
Judge Colloton went on to argue that the Court's recent ruling in Armstrong v. Exceptional Child Ctr. repudiated Wilder and thus supported this conclusion. Judge Colloton went on to argue that this higher standard wasn't met here, because "the focus of the Act [a directive to HHS to approve certain state Medicaid plans] is two steps removed from the interests of the patients"; Congress authorized other ways of enforcing the Act (by withdrawing federal funds); and the Medicaid Act, with its "aggregate focus," "do[es] not give rise to individual rights." Judge Colloton also noted that there's an administrative appeal process for Planned Parenthood (which it did not pursue here).
Judge Shepherd concurred, but for a different reason. Judge Shepherd argued that even if Section 23(A) provided a substantive right to sue under Section 1983, "the right provided is to a range of qualified providers--not the right to a particular provider the State has decertified."
Judge Melloy dissented, siding with the several circuits and district courts that have found an individual right of action under Section 23(A). Judge Melloy wrote that Blessing established a three-part test--(1) whether Congress intended that the provision benefit the plaintiff, (2) whether the right "is not so vague and amorphous that is enforcement would strain judicial competence," and whether the provision "impose[s] a binding obligation of the States"--that Gonzaga simply amended the first part (by heightening the requirement, to an "unambiguously conferred right"), and that the plaintiffs satisfied the test here.
Thursday, August 17, 2017
As reported, the newest Supreme Court Justice, Neil Gorsuch, appointed by President Trump is scheduled to deliver a talk at the “Defending Freedom Luncheon,” hosted by the nonprofit Fund for American Studies, an invitation-only event to be held at the Trump Hotel in Washington, D.C.
It's not the conservative Fund for American Studies sponsorship that is attracting attention, but the venue of the private Trump Hotel. As the emoluments clauses challenges to Trump's alleged intermingling of his office and his personal profits proceed, it is possible that the issue will reach the United States Supreme Court, including facts about functions at the Trump Hotel in D.C.
As we've previously discussed, the Judicial Code of Conduct does not apply to Supreme Court Justices. And even if it did, it is unclear that the appearance at the hotel - - - without a link to a specific pending case before the Court at this time - - - would be encompassed or if the only remedy would be subsequent recusal from that case.
Nevertheless, given the controversy surrounding the nomination of Gorusch, this may not be the best look for a Justice intending to eschew continuing controversy.
[caricature of Justice Neil Gorsuch by Donkey Hotey via]