June 22, 2012
The Legality of the Administration's Position on Immigration
In the wake of President Obama's announcement last week that his administration would exercise prosecutorial discretion not to deport certain young people--undocumented aliens brought to the U.S. by their parents--Republicans cried foul and accused the President of overstepping his bounds by violating the law and not just enforcing it.
Representative Steve King (R-IA) apparently moved one step closer to filing a lawsuit to stop the administration's move, citing separation-of-powers concerns. Although we haven't seen a complaint yet, Rep. King argues, according to the Daily Caller, that the President's move was "constitutional overreach." According to King:
If he can do this by memorandum, then he can raise the debt limit by the same standard. He could argue that he's not going to audit nor enforce tax collection on certain classes of people. He could do that by age group. He could do that by race, by ethnicity. The president can do anything he wants to do.
According to the story, Rep. King's "central argument" is that "the president has legislated by memorandum."
Rep. King's legal claims aren't particularly developed--they're bald, they overstate any slippery slope, and they're at least in part obviously false--but they well represent the kinds of claims we've heard from opponents of the President's move.
On the other side, a group of immigration and constitutional law professors sent this letter to the White House late last month, outlining three different ways that President might exert prosecutorial discretion under the law and prior practice. According to the profs, the President could use "deferred action," "parole-in-place," or "deferred enforced departure" to support his prosecutorial discretion not to deport this class of individuals. The profs argue that these methods are supported in both law and prior executive practice.
Indeed, Secretary Janet Napolitano's memorandum implementing the President's announced practice draws on deferred action, even if it doesn't cite specific authority (as the profs do). The memo is careful to emphasize "prosecutorial discretion," attention to "enforcement priorities," and case-by-case consideration, ensuring that the practice stays on the execution-side of that sometimes fuzzy line between lawmaking (reserved for Congress) and law-executing (reserved for the President).
The memo sets out 5 criteria for individualized consideration and says,
Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.
As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check[,] and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.
Opponents, like Representative King, seem to argue that President Obama's announcement represents a blanket policy that thrusts into the lawmaking power reserved for Congress. But Secretary Napolitano's memo makes clear that this is no blanket policy; it is more like guidance to ensure that enforcement officers take the administration's priorities into account when determining whether to pursue deportation on a case-by-case basis. And the law profs' letter shows why this exercise of prosecutorial discretion is supported by law and past executive practice.
Also working against opponents: Both the House and the Senate last year introduced legislation, but then let it stall in committee, to rein in the President's authority to do exactly what he did. The bills, cleverly titled the Hinder the Administration's Legalization Temptation, or HALT, Act, H.B. 2497 and S. 1380, are both tied up in committees. The bills, by moving to rein in the President, also recognize that the President has prosecutorial discretion. Yet Congress didn't pass them, or even, apparently, prioritize them.
June 21, 2012
Court Takes on Union Assessment Rules in Knox
The usual First Amendment rule for public-sector union fee assessments for non-members is that unions have to provide notice and an opportunity to opt out of those portions of the fees that go to non-bargaining, political activities. These are called "non-chargeable" expenses. (Non-union members can't opt out of that portion of the fees that goes to collective bargaining activities--the "chargeable" expenses. This rule prevents non-members from free-riding on the union's regular, collective-bargaining activities.) The Court crafted the rule in Teachers v. Hudson.
The case today, Knox v. SEIU, however, dealt with a special assessment--not a regular, annual assessment--that the union initially said would go entirely to non-chargeable expenses, that is, the union's political opposition to California's proposed measures to clamp down on unions. The case thus tested Hudson's applicability to special assessments.
Justice Alito's majority opinion said that the First Amendment requires that unions provide notice and an opportunity to opt in to special union assessments that are used for non-bargaining, political purposes. Relative to the Hudson opt-out rule, the holding puts a thumb on the scale against unions in collecting special assessments--because it means that non-members have to affirmatively elect to pay for special assessments, rather than allowing the unions to issue notice and opportunity to opt out. This was a significant, if narrow, holding.
But Justice Alito's opinion did much more. In particular, it took direct aim at the traditional rule for regular, annual assessments, the Hudson rule, that unions have to provide notice and an opportunity to opt out. The opinion all but said that this rule violated the First Amendment.
If so, this would deal a significant blow to public-sector unions in agency shops and their non-bargaining activities.
Justice Alito's opinion is rife with references to the "extraordinary" benefit that unions get under the Hudson rule at the expense of non-members' associational rights, strongly suggesting that the rule is unconstitutional--and that five on the Court are ready to revisit it.
For example, Justice Alito writes that "Our cases to date have tolerated this "impingement," [the Hudson process] and we do not revisit today whether the Court's former cases have given adequate recognition to the critical First Amendment rights at stake." Op. at 10. More: "By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate." Op. at 14. And:
Acceptance of the free-rider argument as justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly--one that we have found to be justified by the interest in furthering "labor peace." But it is an anomaly nevertheless.
Op. at 11.
In the context of special assessments, but with reasoning that would seem to apply equally to regular assessments, Justice Alito wrote:
Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union's political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn't the default rule comport with the probable preferences of most nonmembers? And isn't it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. . . . .
Op. at 11 to 12.
In short, the opinion seems to tee up the next case, dealing with the regular assessment, Hudson process--and similarly putting a thumb on the scale against the unions there.
Justice Sotomayor wrote a concurrence, joined by Justice Ginsberg, that called the majority on its overreach with regard to the regular assessment Hudson rule. Justice Sotomayor also called the Court on its creation of the new opt-in rule for special assessments.
The concurrence underscores the fact that there was a way to rule against the union special assessment here, while still stopping short of the sweeping majority approach and taking aim at the long-settled Hudson rule.
In other words, the availability of Justice Sotomayor's narrower approach tells us that each of the five in the majority could have elected to rule more narrowly. But they didn't. In other words, each of the five in the majority seems to be on board with the strong signal that the Hudson rule itself is unconstitutional.
Justice Breyer wrote a dissent, joined by Justice Kagan. Justice Breyer wrote that the process in this case complied with Hudson. That is, the union provided adequate notice and opportunity to opt-out under the circumstances--even if that opportunity came late. In other words, given the variances in union spending from year-to-year, unions can only estimate future assessments based on past expenditures. (This system ensures that objecting nonmembers can recoup the offending expenditures over time.) Thus in the next regular assessment--the one immediately after the special assessment--the union has to estimate expenditures based on total prior year expenditures (including the special assessment). The notice and opportunity to opt out in the next year covers those nonmembers who objected to the special assessment. And in this case, that worked out to their benefit; they even got a little windfall. Justice Breyer said that this process, while "imperfect," satisfied Hudson and satisfied the First Amendment.
Union Special Assessment Procedure Violates First Amendment
A divided Supreme Court today ruled in Knox v. SEIU that a union must provide notice and opt-in for a proposed special assessment in a public-sector agency shop. We covered the background and oral arguments here.
The majority opinion leaves long-standing rules about union assessments for public-sector agency shops hanging by a thread. In addition to its ruling on special assessments--a question that was open before this case--the ruling takes sharp issue with the idea that the First Amendment permits a public-sector union to provide notice and opt-out for its regular, annual assessments.
The ruling is a blow to unions' ability to collect special assessments. It says that the First Amendment requires notice and opt-in for those. But the ruling also signals the majority's discontent with the long-standing rules on regular assessments. The ruling all but held those rules--notice and opt-out--unconstitutional. (Those rules, of course, were well beyond the scope of the case. But the majority sent a strong signal that it would consider their constitutionality, if not outright rule them unconstitutional, if given even half a chance.)
Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justices Sotomayor and Ginsburg concurred in the judgment, and argued that the majority's ruling--requiring notice and opt-in--went far afield of the arguments and briefing. Justices Breyer and Kagan dissented.
We'll provide more analysis shortly.
Supreme Court on FCC v. Fox and ABC: Fleeting Expletive and Nudity Rules Violated Due Process
In a relatively brief (and almost unanimous) opinion today - - - a mere 23 pages - - - the Court decided FCC v. Fox Television Stations (together with FCC v. ABC, Inc.) involving fleeting expletives and fleeting nudity.
Justice Kennedy's opinion for the Court spends the first 11 pages discussing the regulatory scheme and reciting the complicated history of this litigation. Recall that the precise issue before the Court prompted confusion at oral argument.
The opinion resolves - - - or perhaps sidesteps - - - this disarray by deciding the case on Fifth Amendment Due Process grounds, holding that the FCC regulations were unconstitutionally vague. As Kennedy wrote, the "void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina tory way." The opinion the added: "When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech."
Thus, while the Court does not resolve the case on First Amendment grounds, it certainly uses First Amendment concerns to animate the due process analysis.
Yet the analysis itself is truncated and interestingly augmented by a discussion of what the Court did not hold:
- "First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy."
- "This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub sequent adjudications."
- "Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application."
The decision is not quite unanimous not only because Justice Sotomayor did not participate, but because Justice Ginsburg concurred in the judgment only, writing a brief concurring opinion:
In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).
Thus, it seems that the indeterminate status of fleeting expletives and nudity in regulated media continues.
June 20, 2012
President Asserts Executive Privilege in Fast and Furious Investigation
The President today formally asserted executive privilege in the ongoing dispute between the House Oversight and Government Reform Committee and AG Eric Holder related to the Committee's subpoena for documents from Holder related to Fast and Furious. The move comes as the Committee is considering a contempt resolution against AG Holder for withholding documents related to the Department of Justice's investigation into the program and its reaction to Committee and media inquiries.
The move means that the contempt resolution by the Committee will have even less effect in ultimately producing any documents than it might have had before the assertion of privilege. (And it's not clear that the resolution would have had any effect, anyway.) If past practice is any guide, the invocation of executive privilege ensures that the Department of Justice will not prosecute for criminal contempt. (Recall that the contempt resolution, as of yesterday, refers the matter to the US Attorney for D.C., and apparently does not seek authority for the Committee or the House to pursue a civil judgment in federal court.)
AG Holder asked President Obama to invoke executive privilege in this letter yesterday. In the letter, AG Holder writes that he is
very concerned that compelled production to Congress of internal Executive Branch documents generated in the course of the deliberative process concerning its response to congressional oversight and related media inquiries would have significant, damaging consequences: It would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch's ability to respond independently and effectively to congressional oversight. This would raise substantial separation of powers concerns and potentially create an imbalance in the relationship between these two co-equal branches of the Government.
AG Holder wrote that the Committee's interest in the material didn't meet the standard to overcome an assertion of executive privilege--"demonstrably critical to the responsible fulfillment of the Committee's functions," Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974)--because it's not obviously related to a legislative function of the Committee, because the Department already substantially complied with the Committee's requests, and because an internal IG investigation should assuage any congressional concerns that the Department is attempting to conceal important facts.
Deputy AG James Cole wrote this letter to Representative Issa, summarizing AG Holder's legal analysis and reporting that the President had formally invoked the privilege.
June 19, 2012
Issa, Committee to Vote on Holder Contempt Resolution
Representative Darrell Issa, Chair of the House Oversight and Government Reform Committee, is poised to move forward tomorrow on a vote on a contempt resolution against AG Eric Holder. The Resolution and Report cite Holder's failure to turn over documents that the Committee earlier subpoenaed related to the "Fast and Furious" program.
The move will likely have no effect, except to further publicize Issa's dispute with Holder. The principal type of criminal contempt proposed in the Resolution--in which the Committee refers the matter to the U.S. Attorney for D.C.--is unlikely to go anywhere, especially if Holder cites executive privilege (which he apparently has not yet done). The other kind of contempt possibly suggested in the Resolution--inherent contempt, where Congress relies on its own constitutional power to detain a contemnor until that person complies--is long dormant (and unimaginable here). The Resolution apparently does not pursue a third kind of contempt--one in which Congress seeks a civil judgment in federal court that the person is legally obligated to comply with a congressional subpoena.
Here's the language of the Resolution:
Resolved, That Eric H. Holder, Jr., Attorney General of the United States, shall be found to be in contempt of Congress for failure to comply with a congressional subpoena.
Resolved, That pursuant to 2 U.S.C. Secs. 192 and 194, the Speaker of the House of Representatives shall certify the report of the Committee on Oversight and Government Reform, detailing the refusal of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to produce documents to the Committee on Oversight and Government Reform as directed by subpoena, to the United States Attorney for the District of Columbia, to the end that Mr. Holder be proceeded against in the manner and form provided by law.
Resolved, That the Speaker of the House shall otherwise take all appropriate action to enforce the subpoena.
Here's from the Report's Executive Summary:
The Department of Justice has refused to comply with congressional subpoenas related to Operation Fast and Furious, an Administration initiative that allowed around two thousand firearms to fall into the hands of drug cartels and may have led to the death of a U.S. Border Patrol Agent. The consequences of the lack of judgment that permitted such an operation to occur are tragic.
The Department's refusal to work with Congress to ensure that it has fully complied with the Committee's efforts to compel the production of documents and information related to this controversy is inexcusable and cannot stand. Those responsible for allowing Fast and Furious to proceed and those who are preventing the truth about the operation from coming out must be held accountable for their actions.
Having exhausted all available options in obtaining compliance, the Chairman of the Oversight and Government Reform Committee recommends that Congress find the Attorney General in contempt for his failure to comply with the subpoena issued to him.
Committee Democrats issued a 13-page memo with dissenting views, concluding that going forward with Issa's contempt citation would be "an extreme and blatant abuse of the congressional contempt power that undermines the credibility of the Committee."
The Congressional Research Service recently issued a thorough report on Congress's contempt power. You might take a look at the appendix, starting on page 62, which details the history of Congress's use of that power.
CFP: Corporations and Children's Rights
ConLawProfs doing work on privatization might be interested in this CFP for a Vulnerability and Feminism Legal Theory Workshop.
From the organizers:
This workshop considers the growing trend in some countries to subordinate and often sacrifice children's interests (indeed all of our interests) to corporate interests claimed in the name of efficiency. This trend is represented by the proliferation of for-profit schools, hospitals, and prisons, and in corporate rights exemplified by the reach of commercial advertising into public schools -- from buses to corridors to cafeterias. Particularly in the U.S., the corporation reigns supreme. Politicians and policy makers increasingly accept markets as adequate mechanisms to allocate health, education, public safety, criminal justice, environmental protection, recreation, procreation, and other social goods, and they tend to consider "business" models as the superior means to do so. Corporate legal personhood protects as "speech" the allocation of corporate wealth to political and social causes that aggressively work against protective regulations of corporate activities. Advertising and social media driven by corporate interests create consumer demand for unhealthy and unnecessary products and use the mantra of parental "choice" as a subterfuge for gross profit-seeking. Corporate practices and "values" are adopted as relevant and beneficial to assessing the worth and success of public services, such as education and health care. What is the balance struck in other countries? Is it possible within a liberal legal order to challenge the assumptions that underlie privatization and the "corporatization" of society? Is it impossible to reorient and "humanize" the corporation by holding it legally responsible beyond shareholders and the market, using law to encourage responsiveness to the interests of children and other human beings?
The deadline for submissions is July 25, 2012. More info, including submission details, here.