July 21, 2012
Catholic College Lacks Standing to Challenge ACA's Contraception Requirement
Judge James E. Boasberg (D.D.C.) ruled in Belmont Abbey College v. Sebelius that a Catholic college lacked standing to sue HHS over its regulations under the Affordable Care Act that require health insurance plans to cover contraceptives. The problem: HHS said that it would reconsider the regs and look for other alternatives to provide contraceptive coverage, and so the case sounds more than a little like a pre-enforcement challenge. In other words, the government's working on it, and Belmont's suit will have to wait.
The ruling comes just two months after forty-three Catholic institutions filed 12 separate suits in a high-profile, coordinated move challenging the regulations. (Belmont filed its suit much earlier, in November 2011, arguing that the regs violated the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.) The ruling here will certainly influence the direction of those cases, even if it won't necessarily dictate the direction of those cases.
Current HHS regs, enacted under the ACA, require health insurance plans to provide contraceptive services starting August 1, 2012. But the regs exempt religious organizations who meet these four criteria:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
In response to criticism, HHS added a "safe harbor" period through February 10, 2012, for "certain non-exempted, non-profit organizations with religious objections to covering contraceptive services." Moreover, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM) on March 21, 2012, indicating that it would seek ways to "accommodat[e] non-exempt, non-profit religious organizations' religious objections to covering contraceptive services," while "assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing."
Belmont argued that it didn't qualify for an exemption, that the safe harbor provision only delayed the implementation of the contraceptive requirement, and that the new Rulemaking provided no certain exemption and, in any event, would lead to a similar harm.
Judge Boasberg agreed that Belmont didn't qualify for an exemption (as did the government) and that the safe harbor provision only delayed the harm (and therefore didn't deny Belmont standing). But he concluded that HHS's ANPRM provided enough certainty that HHS was seriously examining a solution to the problem so as to deny Belmont standing. From the ruling:
Plaintiff argues that non-binding promises of future rulemaking cannot defeat standing. Contrary to the Plaintiff's assertions, however, Defendants have done more than simply "open another docket to propose addressing related matters." They have published their plan to amend the rule to address the exact concerns Plaintiff raises in this action and have stated clearly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends. Not only that, but Defendants have already initiated the amendment process by issuing an ANPRM. The government, moreover, has done nothing to suggest that it might abandon its efforts to modify the rule--indeed, it has steadily pursued that course--and it is entitled to a presumption that it acts in good faith.
Op. at 15.
Judge Boasberg also ruled that the case was not ripe, for similar reasons.
July 21, 2012 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack
Chicken Farmers' Challenge to EPA Standards Doesn't Cluck
A three-judge panel of the D.C. Circuit ruled in National Chicken Council v. EPA that the plaintiff's challenge of new EPA standards for renewable fuel wasn't justiciable, because a even a favorable ruling wouldn't redress the plaintiff's alleged injuries.
The case arose out of new EPA regs for renewable fuels, including (sometimes) ethanol, under the Energy Independence and Security Act of 2007. That law grandfathered ethanol production plants that were in construction before December 19, 2007, but also said that "[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the [new EISA standards]." EPA said that the clause was ambiguous because it did "not specify whether [ethanol plants fired with natural gas and/or biomass]are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely." But it adopted the latter interpretation.
The Chicken Council sued, arguing that this will drive up ethanol production, thus driving up corn demand, thus increasing the price of corn, thus increasing the price of chicken farmers' feed. The Council argued that the narrower interpretation--the former one--wouldn't have this effect.
The court didn't buy it. It ruled that the Council failed to show a "substantial probability" that qualifying ethanol plants would reduce their ethanol production if the court ruled in the plaintiff's favor--that is, if the plants were subject to the narrower interpretation of the grandfather clause. This was a simple matter of proof (or the petitioner's lack of proof); the court explained:
True, the EPA claimed in the Final Rule that "many of the current technology corn ethanol plants may find it difficult if not impossible to retrofit existing plants to comply with the [new regs]," and that "[g]iven the difficulty of meeting such threshold, owners of such facilities could decide to shut down the plant." But that statement referred to all grandfathered plants, not just the qualifying ethanol plants, and there are good reasons to think the qualifying ethanol plants will find it much easier than the other, older grandfathered plants to meet the emissions-reduction requirement should they have to.
The petitioners also cite several comments ethanol producers submitted during the rulemaking proceedings. These comments assert it would be difficult to retrofit ethanol plants to meet the emissions-reduction requirement, but the comments do not satisfy the petitioners' burden of proof for one of two reasons: they are either not specific to qualifying ethanol plants, or they do not claim ethanol plants would be forced to shut down or reduce production if they had to coply with [the new standards].
Op. at 5-6. The court said that the Council didn't produce the kind of evidence that supported standing in Duke Power Co. v. Carolina Environmental Study Group--the principal case that the Council relied on. The Court in Duke Power held that a district court was not clearly erroneous in concluding that the plaintiffs showed a "substantial likelihood" of harm, where congressional testimony, legislative findings, and testimony in that case all pointed to harm, causation, and redressibility.
July 19, 2012
Teaching the Commerce Clause After NFIB v. Sebelius
Professor Colin Starger has a terrific visual for teaching the commerce clause next semester:
Take a look at the entire "poster" available on ssrn here; the explanations are necessary and excellent.
July 18, 2012
Suit Seeks Damages for Targeted Killing
The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program. The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.
The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place. Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions. (Judge Bates didn't rule on the government's state secrets claim.)
The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).
All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.
The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.
We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts). We still don't have a complete legal justification from the government for the targeted killing program.
July 18, 2012 in Cases and Case Materials, Due Process (Substantive), Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack
Obama Campaign Files Complaint Alleging Changes in Ohio Early Voting Law Violate Equal Protection
The Obama Campaign, Democratic National Committee and Ohio Democratic Party filed a complaint in the Southern District of Ohio today arguing that Ohio's recent changes to its early voting laws violate the Equal Protection Clause.
The complaint in Obama for America v. Husted sums up the problem thusly:
Taken together, [Ohio] Amended Substitute House Bill Number 194 (“HB 194”), Amended Substitute House Bill Number 224 (“HB 224”) and Substitute Senate Bill Number 295 (“SB 295”), all enacted by the 129th Ohio General Assembly, impose different deadlines for in-person voting prior to Election Day (“early voting”) on similarly situated voters. Prior to the enactment of these laws, there was a single uniform deadline of the Monday before Election Day for in- person early voting. After the enactment of these laws, voters using the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”) may vote early in-person at a board of elections office up through the Monday before Election Day, while non-UOCAVA voters can vote early in-person at a board of elections office (or designated alternate site) only up until 6 p.m. on the Friday before Election Day.
As the accompanying Motion for Preliminary Injunction and supporting memo argues, eliminating the last three days of early voting for non-UOCAVA voters only was most likely the result of legislative confusion. Yet such legislative error cannot form even a rational basis supporting the classification. Additionally, the Motion argues,
to the extent the disparity was motivated by a bare desire to obtain partisan advantage in the election contest, that motivation cannot justify the disparate treatment. Early voting in Ohio has been most prevalent among groups of voters believed to vote Democratic including women, the elderly, and those with lower levels of income and education. But a voting restriction motivated in part by partisan considerations must also have an independently sufficient justification to survive.
Motion for PI at 23 [citations omitted]
Some might wonder if the Obama attorneys cite Bush v. Gore? Yes and No.
In its explanation of equal protection doctrine application to the fundamental right to vote, the memo cites Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011), and twice includes Hunter's quotations from Bush v. Gore:
The fundamental right to vote is not limited to “the initial allocation of the franchise,” but includes “the manner of its exercise.” Hunter, 635 F.3d at 234 (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). . . . Of course, states have substantial latitude to design and administer their elections; for example, they may choose to allow or not to allow early voting. But “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Hunter, 635 F.3d at 234 (quoting Bush, 531 U.S. at 104- 05) (emphasis added)).
The equal protection argument seems compelling, unless the legislature can demonstrate some justification for the difference between UOCAVA voters and non-UOCAVA voters who are both voting in-person before the election.
[image: 1827 map of Ohio via]
July 17, 2012
Ninth Circuit Upholds Warrantless Searches of Hotel Records
A divided three-judge panel of the Ninth Circuit ruled today in Patel v. City of Los Angeles that an LA ordinance allowing police officers to inspect hotel records containing guest information, without a warrant, did not violate the Fourth Amendment on its face.
The ruling means that the ordinance stays on the books. But the court was careful not to rule out a later as-applied challenge.
The majority looked to both the reasonable-expectation-of-privacy test and the common-law trespassory test. As to reasonable expectation of privacy, the majority ruled that hotel owners do not have a categorical expectation of privacy in the guest information that they are required to obtain and retain--although it held open the possibility that an owner might have such an expectation in an as-applied challenge. The court said that it already held that hotel guests themselves do not have a reasoanble expectation of privacy in this information; it's not a huge leap, it said, to imagine that owners, as a class, do not have a reasoanble expectation of privacy in this information.
As to the common-law trespassory test, the court ruled that the limited intrusion into paper (and not property) is reasonable and therefore does not violate the Fourth Amendment. The court explained that "reasonableness" remains the standard for the Fourth Amendment, even after the Supreme Court did not discuss it in applying the common-law trespassory test in United States v. Jones--because the Court said in that case that the government ""forfeited" the argument that that attachment and use of the GPS device was reasonable by failing to make that argument to the court of appeals." Op. at 8202. (Jones was the case this Term that held that the government's warrantless attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle's movements, was a search and violated the Fourth Amendment. The Court did not address the government's alternative argument that the search was reasonable, because the government failed to raise it below.)
Judge Pregerson dissented, arguing that a warrantless search must meet an exception to the warrant requirement. Here, there was none.
DOMA Knocking on the Supreme Court's Door
There are now three petitions for certiorari before the United States Supreme Court seeking review of decisions that have declared DOMA's section 3 unconstitutional.
Passed in 1996, DOMA has come under increasing pressure regarding its constitutionality. Recall that the Obama Administration is no longer defending the constitutionality of DOMA; it is being defended by the BLAG, the Bipartisan Leadership Advisory Group, closely associated with Speaker of the House John Boehner.
The DOJ filed two petitions in the Supreme Court earlier this month.
The first petition for writ of certiorari is for review of the First Circuit opinion in the consolidated cases of HHS v. Massachusetts and Office of Personnel Management v. Gill, decided in April. A unanimous panel found section 3 unconstitutional, relying upon Moreno, Cleburne, and Romer v. Evans, each of which "rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered," to ultimately employ a heightened rational basis of equal protection review. The panel deployed federalism concerns in assessing the equal protection query, but stopped short of ruling that DOMA was inconsistent with the Tenth Amendment.
The other petition for writ of certiorari is for review of a federal district judge's decision in Golinski v. United States Office of Personnel Management. Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities, but the case is only now before the Ninth Circuit. The Solicitor General's petition makes clear that Golinski should be before the Court for the same reasons as Gill, and argues that the Ninth Circuit should be bypassed because "the lower court in this case engaged in de novo consideration of the applicable level of scrutiny, having concluded that it was not bound by circuit precedent applying rational basis review to sexual orientation classifications. The district court’s analysis may materially assist this Court’s consideration of that question."
Additionally, Edie Windsor has filed a petition for writ of certiorari seeking review of a federal judge's decision in early June in Windsor v. US that DOMA section 3 is unconstitutional. Windsor, represented by the ACLU, makes similar arguments to those of the Solicitor General regarding the national importance of resolving DOMA's constitutionality. She also note that the lower courts are "in disarray" and that the issue is especially important in New York, which has legalized same-sex marriage. However, Ms. Windsor also makes a personal argument:
Ms. Windsor is 83 years old and suffers from a serious heart condition. Because the District Court’s ruling is entitled to an automatic stay of enforcement, see 28 U.S.C. § 2414, Ms. Windsor cannot receive the benefit of its ruling in her favor as the executor of Ms. Spyer’s estate pending appeal and any subsequent challenges. Ms. Windsor, not Ms. Windsor’s estate, should receive the benefit to which the District Court has already ruled that she is entitled; the constitutional injury that has been inflicted on Ms. Windsor, as the executor of Ms. Spyer’s estate and its sole beneficiary, should be remedied within her lifetime.
Petition at 21.
Given that several courts have found DOMA section 3 unconstitutional, it seems likely that the Court will grant one - - - or more than one - - - of these petitions.