Monday, September 28, 2015

D.C. Circuit to Rehear Judgment Vacating Military Commission Conviction

The D.C. Circuit announced that it would rehear en banc a panel's earlier judgment vacating the military commission conviction of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacked.

A panel this past June vacated al Bahlul's conviction for inchoate conspiracy. The panel said that the conviction violated Article III because it was based on "the purely domestic crime" of inchoate conspiracy, which is not an offense under the international law of war.

The panel's summer ruling was a victory for al Bahlul and a blow to the government in conducting military commission trials. But the court's latest ruling gives it a second bite at this apple. The ruling vacates the panel's summer judgment and sets oral argument before the entire court for December 1, 2015.

September 28, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Wednesday, September 23, 2015

Deputy Sheriff Gets No First Amendment Protection from Political Reprisal

The Eleventh Circuit ruled that a deputy sheriff does not enjoy First Amendment protection from retaliation in employment for her political beliefs. That's true, the court held, even when local law bans political retaliation against certain covered employees, including the deputy sheriff. The court also rejected the deputy sheriff's Equal Protection claim for gender discrimination.

The case arose when John Darr beat incumbent Sheriff Johnson in the sheriff race in Columbus, Georgia. Darr substantially reorganized the staff, including taking away significant responsibilities from Deputy Sheriff Terri Ezell. According to the court, Ezell "has a long and path-breaking record of law enforcement service for [the Columbus Consolidated Government]." She also supported Johnson (against Darr) in the sheriff race.

Ezell brought a First Amendment claim against Darr and the CCG for retaliating against her based on her political affiliation. Recognizing that circuit law said that a deputy sheriff enjoyed no First Amendment rights against political retaliation (because "the nature of the sheriff-deputy relationship is such that a sheriff must be able to require absolute loyalty from his deputies for his office to be effective"), Ezell argued that local law classified her position within the CCG civil service and prohibits employment decisions based on political patronage. In other words, she said that the CCG civil service system changed the nature of her position for First Amendment purposes in a way that gave her protection against political retaliation, notwithstanding circuit law.

The court rejected this argument. The court said that the touchstone of First Amendment protection for retaliation is the relationship between the deputy sheriff and the sheriff--a question of law--and that this isn't changed by the CCG civil service system. The court said that nothing in the local law could change the fundamental relationship between the offices for First Amendment purposes. This meant that Ezell was subject to circuit law, and that she enjoyed no First Amendment protection.

The court also rejected Ezell's Equal Protection claim based on gender discrimination. The court held that there was no factual dispute that Darr shifted Ezell's responsibilities in order to address problems in the local jail (which Ezell previously supervised)--a non-discriminatory explanation--and that Ezell couldn't show that this was a pretext.

September 23, 2015 in Cases and Case Materials, Equal Protection, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, September 22, 2015

No Constitutional Claim for Former Embed Journalist

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit this week dismissed a case of a former embed journalist against Defense Department officials for terminating his embed status in violation of the First Amendment and the Administrative Procedure Act.

The ruling may reveal a rift on the court over the sweep of sovereign immunity in a constitutional case for non-monetary, specific relief against government actors in their official capacity--that is, over the meaning or sweep of Clark v. Library of Congress (D.C. Cir.). The issue is critically important for access to justice.

The case arose when NATO officials terminated Wayne Anderson's embed status after he posted pictures that violated the Ground Rules for embeds. Anderson sued the Secretary of Defense and DoD officials in their individual and official capacities, seeking reversal of the memo terminating his embed status and declaratory relief (but no monetary damages).

Anderson appealed the lower court's dismissal, but only as to the defendants in their official capacities. He alleged a claim for retaliation under the First Amendment and a violation of the Administrative Procedure Act. (Anderson's precise arguments were a little muddied, and maybe included a procedural due process claim, too.)

The D.C. Circuit ruled that the government enjoyed sovereign immunity against a suit against the defendants in their official capacities, and did not waive it through the APA. (The APA might have provided a statutory waiver of immunity, except that it exempts "military authority exercised in the field in time of war.")

The court went on to say that Anderson's claim was also moot. That's because the Afghanistan mission was drawn down, and NATO (not a party to the suit) led the embed program. In other words, the court said that it couldn't grant any relief to Anderson. But the court noted that Anderson could re-apply for the current embed program.

Judge Srinivasan concurred and dissented. He argued that the government did not enjoy sovereign immunity, citing Clark v. Library of Congress (D.C. Cir.). In that case, the court declined to apply sovereign immunity to shield the government from suit for non-monetary, specific relief for officials' unconstitutional behavior. The Clark court wrote, "Clark's claims for non-monetary, specific relief are not barred by sovereign immunity. It is well-established that sovereign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority."

Judge Srinivasan also argued that the case was not moot, given that the "government has not shown that the transition to a NATO-led mission has made it impossible for the court to provide any relief bearing on a United States journalist's ability to embed."

September 22, 2015 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Monday, September 21, 2015

D.C. Circuit Upholds Part, and Strikes Part, of Long Gun Registration Law

A divided panel of the D.C. Circuit today upheld portions of the D.C. long-gun registration law, even as the court struck other portions. The mixed ruling has a little for both sides in the debate over gun rights.

This case follows previous rulings in which the court upheld handgun registration requirements and a ban on assault weapons and magazines with a capacity in excess of 10 rounds.

The court applied its familiar two-part framework, asking first whether a provision impinges on a right protected by the Second Amendment, and, if so, second whether the provision satisfies intermediate scrutiny. Here are the results:

Basic Registration: Upheld. The court said that a basic registration requirement for long-guns did not impinge on Second Amendment rights, and therefore didn't even trigger intermediate scrutiny. The court followed its own ruling on registration of handguns, saying that the only difference between the two is the "historical pedigree" of registration requirements for handguns (which registration for long-guns lacks).

The court held that all other requirements, below, did infringe on Second Amendment rights, and therefore applied intermediate scrutiny (with different results):

In-Person Registration, Fingerprinting, and Photographing: Upheld. The court held that an in-person registration requirement, a fingerprinting requirement, and a photograph requirement for an application for a long-gun license were all sufficiently tailored to meet D.C.'s interest in public safety. The court said that these requirements would "help to deter and detect fraud and thereby prevent disqualified individuals from registering firearms" and (as to the photograph requirement) "facilitat[e] identification of the owner of a registered firearm during any subsequent encounter with the police." "The additional requirement that registrants appear in person to be photographed and fingerprinted is but a corollary necessary to implement those requirements."

Bringing the Firearm to Registration: Struck. The court said that the requirement that an applicant bring the firearm to registration was not tailored to promote public safety. "On the contrary, common sense suggests that bringing firearms to the MPD would more likely be a threat to public safety . . . ."

Re-registration Every 3 Years: Struck. The court held that D.C.'s requirement to re-register every three years was not sufficiently tailored to promote public safety, because officials can already conduct background checks on permit holders (without re-registration), the regular registration process should take care of firearms transfers, and D.C. law already requires owners to report lost weapons (obviating the need to use the re-registration process to locate lost or stolen weapons).

Registration Fees: Upheld. The court upheld reasonable registration fees, $13 per firearm and $35 for fingerprinting.

Education Requirements: Upheld and Struck. The court upheld training requirements going to the safe use of firearms, but it struck a testing requirement on D.C. gun laws as not sufficiently tailored to promote public safety.

One Pistol Per Month Rule: Struck. The court struck this limit, because D.C.'s evidence failed to show that it would promote public safety. Moreover, "taken to its logical conclusion, that reasoning [limiting registrations in order to limit firearms present in the home, in order to promote public safety] would justify a total ban on firearms kept in the home."

Judge LeCraft Henderson wrote separate and would have upheld all the requirements under intermediate scrutiny.


September 21, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Friday, September 18, 2015

Eighth Circuit First to Strike Accommodation of Contraception Mandate

The Eighth Circuit yesterday became the first federal circuit court to rule that the government's accommodation of the contraception mandate in the Affordable Care Act likely violated the Religious Freedom Restoration Act.

The ruling upholds a lower court's preliminary injunction against the contraception mandate as applied to objecting religious non-profits.

The ruling is notable not only because it's the first federal appellate court (of eight) to so hold, but also because it seems to grant deference to the plaintiffs' beliefs about how their religion works, but also their religious beliefs about how the law works. That could have far reaching impacts for other cases under RFRA, at least in the Eighth Circuit.

The court said that the government's accommodation--that an objecting religious non-profit complete a Form 700, or certify to the government that it has a religious objection to certain contraception--itself was a substantial burden on the non-profits' religious beliefs. According to the court, that's because the accommodation "triggers" the provision of contraception to employees by the non-profits' insurers or third-party administrators.

This contradicts the holdings in other circuits, which have said that it's not the accommodation that "triggers" contraception, but the law itself.

But the Eighth Circuit rejected that approach, based on the deference that it says it owes to the non-profits' interpretation of their own religious beliefs:

Instead, we must accept a religious objector's description of his religious beliefs, regardless of whether we consider those beliefs "acceptable, logical, consistent, or comprehensible." In other words, a religious objector is entitled to "dr[a]w a line" regarding the conduct that his religion deems permissible, and once that line is drawn, "it is not for [a court] to say that the line . . . was . . . unreasonable."

The Eighth Circuit extended the deference traditionally granted to a plaintiff over his or her religious beliefs to the plaintiffs' interpretation of law. In other words, the court didn't look to the way the ACA actually worked (in requiring insurers and TPAs to provide contraception when an employer files the accommodation), as the other circuits did; instead, it simply accepted the plaintiffs' interpretation of the law--based on its deference to the plaintiffs' sincerely held religious belief--that their certification "triggered" contraception. The court explained:

As Hobby Lobby instructs, however, we must accept CNS and HCC's assertion that self-certification under the accommodation process--using either Form 700 or HHS Notice--would violate their sincerely held religious beliefs.

The court went on to say that the accommodation didn't meet strict scrutiny (under RFRA), because there were other ways for the government to achieve its objective of providing contraception: the government could provide contraception directly, itself; or it could use a simple notice requirement consistent with the Supreme Court's requirement in Wheaton College. (The court said that the government's notice requirement was broader, and more burdensome, than what the Supreme Court approved in Wheaton College.)

September 18, 2015 in Cases and Case Materials, News, Opinion Analysis, Religion | Permalink | Comments (1)

Second Circuit Says No Waiver of General Immunity when State Removes

The Second Circuit this week ruled that a state does not waive its general state sovereign immunity (as opposed to its Eleventh Amendment sovereign immunity) when it removes a case to federal court.

The ruling is a win for the states and adds to the apparent weight of authority in the circuits. Still, the Second Circuit noted that "there has . . . been some confusion in the Circuit Courts" on the question, inviting the Supreme Court to clarify.

The case started with state employees' Fair Labor Standards Act case against Vermont in state court. Vermont removed the case to federal court, declined to assert any form of sovereign immunity, and even at one point represented that it wouldn't assert Eleventh Amendment immunity (as a result of its removal to federal court). Then it asserted general common law state sovereign immunity and moved to dismiss.

The Second Circuit dismissed the case. The court said that while Vermont waived its Eleventh Amendment immunity by virtue of its removal to federal court (under Lapides v. Board of Regents), it did not waive its general state sovereign immunity by virtue of removal. The court noted that the state in Lapides had already waived its general state sovereign immunity, so did not support the plaintiffs' position that Vermont waived immunity (because Vermont had not previously waived its general state sovereign immunity). The court also said that the circuits that have considered the question have ruled that a state does not waive its general state sovereign immunity by virtue of removal (even if it waives Eleventh Amendment immunity by virtue of removal)--even while noting that there's some confusion in the circuits on how to apply Lapides.

The court said that both logic also supported its result:

A state defendant sued in state court, when entitled to remove the suit to federal court, may well wish to do so in the belief that its entitlement to have the suit dismissed by reason of the state's sovereign immunity, an entitlement largely elaborated by federal courts, will be better protected by the federal courts than by courts of the state.

The court also rejected the plaintiffs' arguments that Vermont's foot-dragging on asserting immunity amounted to a waiver and that Vermont expressly waived immunity.

September 18, 2015 in Cases and Case Materials, Courts and Judging, Eleventh Amendment, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Friday, September 11, 2015

Federal District Judge Finds Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

In his opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, United States District Judge Dennis Hurley held the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment. 

The ordinance, Chapter 205-32 of the Code of the Town of Oyster Bay, sought to prohibit "any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle," and to similarly prohibit "the operator of any motor vehicle utilizing a public right-of-way within the Town of Oyster Bay to stop or stand within or adjacent to said public right-of-way or any area designated as either a traffic lane or a no-standing or no-stopping zone for the purpose of soliciting employment or accepting a solicitation of employment from a pedestrian."

Masonry circa 1425 via

After first discussing preliminary matters including standing, Judge Hurley's description of the parties' arguments offers a good illustration of the types of doctrinal choices available under the First Amendment:

Plaintiffs maintain that the Ordinance must be stricken as violative of the First Amendment. First, it is a content-based enactment, presumptively unconstitutional and not justified as narrowly tailored to serve a compelling state interest. Second, if viewed as a “time, place or manner restriction” and not content- based, it is not narrowly tailored to serve “legitimate, content-neutral interest.” Third, even if viewed as restricting purely commercial speech, it is not narrowly tailored.

Defendants offer several arguments in response. First, the Ordinance does not affect expressive speech; rather, it regulates conduct. Second, day labor solicitation is commercial speech. As such, it is entitled to no protection because it relates to illegal activity; alternatively, the ordinance is a constitutional restriction of commercial speech. Finally, to the extent it is viewed as a time, place or manner restriction, it is narrowly tailored.

 Judge Hurley decided that the ordinance was a content-based regulation of commercial speech.  He thus applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), as "adjusted" by Sorrell v. IMS Health Inc. (2011).

In deciding that the ordinance was content-based, Judge Hurley quoted the Court's recent decision in Reed v. Town of Gilbert (2015), including the passage that regarding the "commonsense" meaning of the phrase.  Here, Judge Hurley noted, to enforce the ordinance the Town authorities would have to "examine the content of the message conveyed."

Not surprisingly then, Judge Hurley found that the ordinance failed the fourth prong of Central Hudson - - - “whether the regulation is more extensive that necessary to serve the governmental interest” - - - given that the content-based restriction should be "narrowly tailored" and that there were "less speech-restrictive alternatives available."  He wrote:

Because of its breath, the ordinance prohibits speech and conduct of an expressive nature that does not pose a threat to safety on the Town’s streets and sidewalks. It reaches a lone person standing on the sidewalk, away from the curb, who attempts to make known to the occupants of vehicles his availability for work even if it does not result in a car stopping in traffic or double parking. It reaches children selling lemonade at the end of a neighbor’s driveway (which is, after all, “adjacent to” a public right of way), the veteran holding a sign on a sidewalk stating “will work for food,” and students standing on the side of a road advertising a school carwash. Even a person standing on the sidewalk holding a sign “looking for work - park at the curb if you are interested in hiring me” would violate the ordinance as it contains no specific intent element and no requirement that the “attempt to stop” result in traffic congestion, the obstruction of other Vehicles, or double parking. The Ordinance applies to all streets and roadways in the Town regardless of traffic flow and in the absence of any evidence that the traffic issues the Town relies on to support its interest exist elsewhere in the Town.

In support of this final observation, Judge Hurley quotes the Court's buffer-zone decision in McCullen v. Coakley (2014).

Interestingly, although Judge Hurley did not reach the Equal Protection challenge because he found the Ordinance unconstitutional under the the First Amendment, he provides a glimmer of the Equal Protection difficulty in the Town's position:

Nor is it any comfort that the Town’s safety officers will use their discretion, or be “trained” on how to determine whether a person is soliciting employment or attempting to stop a vehicle to solicit employment. Such discretion may surely invite discriminatory enforcement. . . . . Will safety officers be instructed and/or use their discretion to ignore the students advertising a school car wash and the child selling lemonade on the sidewalk and to ticket the group of Latino men standing on a corner near a home improvement store?

Moreover, he concludes that other ordinances are more than adequate to address the specific problem of traffic safety.

Judge Hurley's conclusion that the Oyster Bay day labor solicitation violates the First Amendment is similar to the Ninth Circuit's 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  Should the Town appeal, the Second Circuit would most likely find Valle Del Sol persuasive, especially since the Court's subsequent opinions provide even more support.

September 11, 2015 in Cases and Case Materials, Equal Protection, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Connecticut Supremes Strike Extra-Judicial Regulation of Attorneys in Debt-Relief Business

The Connecticut Supreme Court ruled that state regulation of attorneys who offer certain debt-relief services to clients violates state constitutional separation of powers principles. The ruling is quite limited, however, and does not extend to attorneys who set up a sham shop as a cover for a distinct debt-relief operation. (The ruling keeps the regulatory scheme on the books; it simply says that it can't apply to certain actual attorneys doing actual legal work.)

The ruling means that Connecticut attorneys who are really practicing law (but also providing debt-relief services) cannot be regulated outside the judiciary, but attorneys who are simply providing cover for debt-relief operations (without really practicing law) can be.

The case tested a Connecticut law that authorizes the state Banking Commissioner to license and regulate persons engaged in the debt negotiation business. Attorneys in this line of work are not exempt, except those who are "admitted to the practice of law in [Connecticut] who [engage] or [offer] to engage in debt negotiation as an ancillary matter to such [attorneys'] representation of a client . . . ."

A Connecticut law firm that enters into retainer agreements for legal services and an attorney-client relationship with clients, but also provides debt-relief counseling, challenged the licensing and regulation scheme on the ground that it's the courts, not the legislature, that regulate an attorney's law practice in Connecticut. The firm claimed that the Commissioner's attempts to regulate it intruded into the role of the judiciary and thus violated state constitutional separation of powers.

The court agreed. (Like many states, Connecticut has an explicit clause on separation of powers. Connecticut's says, "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .")

The court also emphasized, however, that a presumption that an attorney is practicing law (and not subject to Commissioner regulation) can be overcome where "the Connecticut attorney has failed to (1) exercise meaningful oversight over debt negotiation staff, (2) provide any genuine legal advice or other legal services, and/or (3) maintain a bona fide attorney-client relationship with the client." The court also reminded the Office of Chief Disciplinary Counsel of its "duty to regulate lawyers when they are acting as debt negotiators," and urged it "to monitor vigilantly their activities and fees in this area of practice."

September 11, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, Separation of Powers, State Constitutional Law | Permalink | Comments (0)

Seventh Circuit Strikes Partisan Balance Statute in Judicial Elections

The Seventh Circuit this week struck an Indiana law election law that ensured "partisan balance" on the Marion Superior Court, in Marion County. Curiously (and tellingly), the law only applied to judicial elections in Marion County (the home of Indianapolis); more regular judicial election rules (or, in two counties, merit selection) applied in the rest of the state.

Here's how it worked. Each major party conducted a primary election in which each party selected a number of candidates that equaled half the open seats on the court in the general election. (If there were 16 open seats, the Republicans would put up 8 candidates, and the Dems would put up 8.) Then, in the general election, all primary winners would win a seat. The system virtually ensured an equal divide among the judges on the court. ("Virtually," because there was a remote chance that a minor-party candidate or independent could get elected.)

Common Cause challenged the law, arguing that it infringed on the right to vote. (What good is your vote in the general, if you can't select among competing candidates?) The court agreed.

The court applied the Burdick/Anderson balancing test and ruled that the infringement on the right to vote outweighed the state's interests. On the infringement side of the balance, the court simply noted that the system denied voters any choice in the general election--a "severe" burden on the right to vote:

the Statute removes electoral choice and denies voters any effective voice or ability to choose between candidates of the two major parties. In fact, absent a possible third party or independent candidate on the ballot [a remote chance, by the way--ed.], the general election is guaranteed to be uncontested, rendering any vote meaningless because there is no choice to be made.

On the state's interests side of the balance, the court rejected the claimed interest in ensuring fair political representation and impartiality, because that interest doesn't really apply to judicial elections (where judges make independent decisions in their own independent courtrooms, not like a legislature, where the body makes a decision as a whole), and because the state had other ways of achieving this interest (by enforcing standards of judicial conduct, e.g.). The court said that the state's interests in saving money and ensuring stability and public confidence could be achieved in other ways, too, and that in any event they were outweighed by the severe restriction on the right to vote.

The ruling means that the state needs to come up with a different way to elect Marion County judges before the next election (in 2018). The ruling is a victory for the right to vote, but it's a victory for judicial independence, too, given that this strange system applied only to Marion County, suggesting a legislative power-play against the court system in the state's capital and largest city.

The state hasn't said whether it will seek en banc review or cert.

September 11, 2015 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 9, 2015

District Judge Says House of Representative Challenge to ACA Can Go Forward (in part)

Judge Rosemary Collyer (D.D.C.) ruled today that the U.S. House of Representatives has standing to pursue its claim that the administration spent money on a portion of the Affordable Care Act without a valid congressional appropriation. But at the same time, Judge Collyer ruled that the House lacked standing to sue for an administration decision to delay the time when employers have to provide minimum health insurance to their employees.

The split ruling means that the House's case against the administration for spending unappropriated funds can go forward, while the case for extending the time for the employer mandate cannot.

But Judge Collyer's ruling is certainly not the last word on this case. The government will undoubtedly appeal.

And just to be clear: this is not a ruling on the merits. It only says that a part of the case can go forward.

The case arose when the House authorized the Speaker to file suit in federal court against HHS Secretary Burwell and Treasury Secretary Lew for spending money on an ACA program without an appropriation and for unilaterally extending the statutory time for employers to comply with the employer mandate.

As to the spending claim, the House said that a provision of the ACA, Section 1402, which authorizes federal reimbursements to insurance companies for reducing the cost of insurance to certain eligible beneficiaries (as required by the ACA), never received a valid appropriation. That is, Congress never funded the provision. That's a problem, the House said, because Article I, Section 9, Clause 7 of the Constitution says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." In short, the administration's funding of Section 1402 violated the Constitution.

As to the employer mandate claim, the House said that the administration pushed back the employer mandate beyond December 31, 2013, the date set in the ACA, without congressional authorization. (The House couched this in constitutional terms, but, as Judge Collyer wrote, it's really essentially a statutory claim.)

The Secretaries filed a motion to dismiss for lack of standing.

Judge Collyer denied the motion as to the appropriations theory, but granted it as to the employer mandate claim. According to Judge Collyer, the House could show an institutional harm from the administration's use of non-appropriated funds (because the Constitution itself specifies a role in appropriations for the Congress, which the House said that the administration ignored here, and because the claim isn't about the administration's execution of law). But at the same time she wrote that the House couldn't show a particular institutional harm for the administration's push-back for the employer mandate (because this claim was all about the administration's execution of the law--a role reserved under the Constitution to the executive). She explained:

Distilled to their essences, the Non-Appropriation Theory alleges that the Executive was unfaithful to the Constitution, while the Employer-Mandate Theory alleges that the Executive was unfaithful to a statute, the ACA. That is a critical distinction, inasmuch as the Court finds that the House has standing to assert the first but not the second.

As to the employer mandate claim, she said,

The [House's] argument proves too much. If it were accepted, every instance of an extra-statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against "the specter of 'general legislative standing' based upon claims that the Executive Branch is misinterpreting a statute or the Constitution."

We'll watch this case on appeal.


September 9, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Seventh Circuit (again, and again) Upholds Contraception Accommodation

The Seventh Circuit yet again upheld the ACA's accommodation to the contraception mandate for religious non-profits against a RFRA challenge. The decision last week in Grace Schools v. Burwell reversed a lower court's ruling that the challengers were likely to succeed on the merits. But the Seventh Circuit also kept the lower court's injunction in place for 60 days in order to allow the lower court to consider additional arguments made by the plaintiffs but not addressed in the appeal (a First Amendment claim and an Administrative Procedures Act claim). (These claims probably have even less traction than the RFRA claim.)

The ruling says that the government's accommodation to the contraception mandate for religious non-profits doesn't violate the RFRA. This is consistent with the rulings of every other circuit that's addressed the question.

Recall that the accommodation now allows a religious non-profit that objects to the contraception mandate either to complete a government form or to simply inform the government that it has a religious objection to the mandate. If so, the government then informs the non-profit's health insurer or third-party administrator that the insurer or TPA has to provide contraception directly to the non-profit's employees and students free of charge. (Insurers are happy to do this, by the way, because contraception coverage is cheaper for an insurer than not including contraception as part of an insurance package.)

Non-profits have sued, arguing (curiously) that the accommodation itself violates their religious freedom, because it makes them complicit in the provision of contraception. ("But for" their certification, they say, their insurers or TPAs wouldn't be required to provide contraception. Moreover, they claim a religious objection to doing business with insurers or TPAs who provide contraception to their employees, even if required by the government.)

This case zeroed in on the substantial burden requirement in RFRA. (In order to trigger RFRA's strict scrutiny, a government action must first create a substantial burden to a religious practice.) The challengers argued that the accommodation created a substantial burden on their religious practice (for the reasons mentioned above)--and that they, not the courts, got the final word on whether the accommodation was a substantial burden. (They claimed that Hobby Lobby said this.) This was the really important question in the case: Who gets to say whether a government action, as a legal matter, creates a substantial burden?

The Seventh Circuit panel flatly rejected the plaintiffs' arguments. The majority said what every other circuit has said: contraception is triggered by government regulation, not by the non-profit's exercise of the accommodation--and, importantly, that the courts, not the challengers, get to interpret how the law operates. Because there was no substantial burden, the majority didn't reach the question whether the accommodation satisfied RFRA's strict scrutiny.

Judge Manion dissented sharply, arguing that the majority misinterpreted the law and misunderstood how the accommodation actually worked. Judge Manion also argued that the accommodation failed strict scrutiny.

This case follows closely on a decision last week by the Tenth Circuit to deny en banc review of a panel's decision upholding the accommodation. That decision also came with a sharp dissent. It also follows the Seventh Circuit's own ruling in Notre Dame II, also (again) upholding the accommodation.

September 9, 2015 in Cases and Case Materials, News, Opinion Analysis, Religion | Permalink | Comments (1)

Thursday, September 3, 2015

A Sharp Dissent in Little Sisters' Challenge to Contraception Mandate

The full Tenth Circuit today declined to grant an en banc rehearing of the panel's July 2015 ruling that HHS's religious accommodation to the ACA's contraception mandate violated statutory and First Amendment rights of Little Sisters of the Poor. We posted on the panel decision here.

No party called for an en banc rehearing; instead, the court decided sua sponte to consider it. But a majority voted no.

Judge Hartz wrote a dissent, joined by four other judges, arguing that the panel wrongly recast Little Sisters's religious beliefs. In particular, the dissent argued that the panel wrongly interpreted Little Sisters's belief "as being only opposition to facilitating the use and delivery of certain contraceptives to which they object." According to the dissent, "Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to contraceptives."

Put another way, the panel majority may be saying that it is the court's prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a "derivative" religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.

Judge Hartz argued that "the doctrine of the panel majority will not long survive," because "[i]t is contrary to all precedent concerning the free exercise of religion."

If you're wondering how, under Judge Hartz's approach, an organization like Little Sisters might tell the government that it has a religious objection to the contraception mandate without violating its own religious beliefs (a question that stumped other courts: how can a religious accommodation itself violate free exercise?), Judge Hartz says that the dissent only goes to the "substantial burden" on religion (and thus triggers strict scrutiny). The certification might still satisfy strict scrutiny--a question that Judge Hartz would send back to the lower court on remand.

September 3, 2015 in Cases and Case Materials, Free Exercise Clause, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 2, 2015

D.C. Circuit Denies Attorneys' Fees to Shelby County

The D.C. Circuit today denied attorneys' fees to Shelby County growing out of its successful challenge to the coverage formula for preclearance in the Voting Rights Act. But more importantly: A majority on the panel rejected Shelby County's states' rights interpretation of the VRA.

The case arose out of Shelby County's motion for attorneys' fees after the Supreme Court struck Section 4 of the VRA, the coverage formula for preclearance, in Shelby County v. Holder. The VRA fee-shifting provision says,

In any action or proceeding to enforce the voting guarantees of the [F]ourteenth or [F]ifteenth [A]mendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable [attorneys'] fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.

But to win attorneys' fees, Shelby County had to show (1) that it was eligible for fees under the provision and (2) that it was entitled to them under Newman v. Piggie Park.

All three on the panel agreed that Shelby County wasn't entitled under Piggie Park. That's because "Shelby County's lawsuit did not facilitate enforcement of the VRA; it made enforcing the VRA's preclearance regime impossible." "Shelby County's argument boils down to the proposition that Congress introduced the fee-shifting provision into the VRA in 1975 with the express goal of inducing a private party to bring a lawsuit to neuter the Act's central tool. But that makes no sense." (Emphasis in original.) That was enough to deny attorneys' fees.

But that's also where the case gets interesting. On the eligibility prong, Shelby County argued that it was eligible for fees under the statute, because it prevailed in an action to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments, and that these guarantees include "the structural rights of the states." That last part is a bold departure from the plain language of the amendments and any cases interpreting them; it assumes that the amendments contain some (unenumerated) version of states' rights, which, in turn, could limit the amendments' protection of individual voting rights.

The court left that question open. Judge Griffith, writing for the court, dodged it by relying only on the Piggie Park prong. Judge Silberman, in concurrence, seemed (more or less) to agree (at least on this point). Only Judge Tatel specifically took on Shelby County's reading. Judge Tatel wrote that the question was simple: "Obviously, neither of these [amendments] includes any guarantees of state autonomy over voting. . . . The two Amendments thus 'guarantee' not state autonomy, but rather the right of citizens to vote, and they expressly guarantee that right against state interference."

The upshot is that the court appears to have left Shelby County's states' rights interpretation of the Fourteenth and Fifteenth Amendments on the table, an open question. This means that the Supreme Court could step in and answer it--it Shelby County's favor. (And given the Court's states' rights approach in the original case, this seems like a possibility.)

Still, the court's reasoning on Piggie Park is extremely thorough, and seems written to insulate the ruling against Supreme Court reversal.


September 2, 2015 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News | Permalink | Comments (0)

Tuesday, September 1, 2015

Ninth Circuit OKs Jesus Statute on Public Land

A divided panel of the Ninth Circuit today upheld a U.S. Forest Service decision to renew a permit for the Knights of Columbus's Jesus statute on public land. The ruling means that Jesus stays on the USFS's Big Mountain.

Judge Owens wrote that the statute didn't violate the Establishment Clause, because the USFS's decision to renew the statute's permit reflected a primarily secular purpose (despite its portrayal of Jesus), and because USFS's permit didn't endorse religion. (According to Judge Owens, several factors suggest that the permit didn't endorse religion, including "the flippant interactions of locals and tourists with the statute [including] decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as [mountain-goers] ski by, and posing in Facebook pictures.") Judge Owens also distinguished Trunk v. City of San Diego, where the court ruled that a giant cross violated the Establishment Clause.

Judge N.R. Smith concurred, but argued that the case should be analyzed as private speech in a public forum. Judge Smith wrote that the permit should be upheld so long as the government didn't discriminate in granting it, and it didn't. Moreover, the Knights (not the government) maintains the statute.

Judge Pregerson dissented, arguing that "a twelve-foot tall statute of Jesus situated on government-leased land cannot realistically be looked upon as 'predominantly secular in nature,'" and that "a 'reasonable observer would perceive' the statute situated on government land 'as projecting a message of religious endorsement.'"

September 1, 2015 in Cases and Case Materials, Establishment Clause, First Amendment, News, Opinion Analysis, Religion | Permalink | Comments (1)

Friday, August 28, 2015

Ninth Circuit Upholds Federal Ban on Federal Inmate Sexual Assault

The Ninth Circuit yesterday upheld federal laws criminalizing sexual assaults in facilities where federal inmates are held by agreement with state and local governments. The ruling is a baby-step extension of United States v. Comstock, the Court's 2010 case holding that Congress had authority under the Necessary and Proper Clause to authorize civil detention of "sexually dangerous" federal prisoners beyond their term of imprisonment. It's a baby-step beyond Comstock, because these laws have the added feature that they operate within state and local detention facilities--where the federal government contracts to hold federal inmates.

Sabil Mujahid brought the facial claim against the federal statutes, arguing that they exceeded Congress's authority and ran afoul of the Tenth Amendment. The provisions criminalized sexual assault "in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General." By its plain terms, the provision outlaws sexual assault by non-federal inmates in these facilities, too, but Mujahid is a federal inmate, and the court limited its ruling to federal inmates.

The court, applying Comstock, flatly rejected Mujahid's claims. In short:

Like the civil commitment statute in Comstock, [these statutes] are not facially unconstitutional; they are "a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. See Comstock.

As I said, the court specifically did not rule on the statutes as applied to state inmates in these same facilities. That question may raise more complicated issues (but just slightly).

August 28, 2015 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Tenth Amendment | Permalink | Comments (0)

Sunday, August 23, 2015

Court Tosses Klayman Case Alleging Harm from Administration Payments to Hamas

The D.C. District tossed Larry Klayman's case against President Obama, administration officials, UN Secretary General Ban Ki-Moon, and others for allegedly funneling money to Hamas, which, according to Klayman, used that money to assault Klayman and seven anonymous plaintiffs were in Israel in 2014.

Klayman alleged several counts, including RICO, the Anti-Terrorism Act, the FTCA, and barely (and badly) pleaded Bivens claim. The court tossed them all, citing various immunities.

The 40-page ruling ends the case, unless and until appealed (where Klayman would almost surely lose again).

August 23, 2015 in Cases and Case Materials, News | Permalink | Comments (0)

D.C. District Applies Reporter's Privilege to Non-Confidential Information

Judge Amit Mehta (D.D.C.) on Friday granted a reporter's motion to quash a subpoena by a drug manufacturer for non-confidential information related to the reporter's article recounting a critical study on one of the manufacturer's cancer drugs. (This was a bit piece of a larger shareholder class-action against the manufacturer, Amgen.)

The ruling applied the reporter's privilege under the First Amendment to non-confidential information in a civil suit. That part of the ruling aligns with other circuits that have ruled on the issue, even though the D.C. Circuit has yet to rule on it.

Judge Mehta also concluded that Amgen did not sufficiently seek the information through other sources before it issued its subpoena to reporter Paul Goldberg.

August 23, 2015 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, August 19, 2015

Missouri Court Upholds Ban on Felon Gun Possession

The Missouri Supreme Court ruled this week that the state's ban on felon gun possession did not violate the state constitutional right to bear arms. The ruling is notable, because it applied strict scrutiny, but nevertheless upheld the gun possession restriction.

The Missouri Constitution, article I, section 23, read as follows (at the time of the defendant's conviction for possessing a gun in violation of the state's ban on felon possession):

That the right of every citizen to keep and bear arms in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questions; but this shall not justify the wearing of concealed weapons.

But the provision was amended during the appeal. The amended provision added "ammunition, and accessories typical to the normal functioning of such arms" to the right to keep and bear arms; it added "family" to the list of things that a citizen can bear arms to protect; it struck the limitation on concealed carry; and it added language strengthening the right (explicitly subjecting it to strict scrutiny), but permitting restrictions on felons and individuals adjudicated by a court to be a danger to self or others because of a "mental disorder or mental infirmity."

Still, the court said that the previous provision applied, because the defendant was convicted before the amendment took force.

The court held that under article I, section 23, strict scrutiny applied to restrictions on gun possession. But the state's ban on felon possession satisfied even that highest level of constitutional review:

The State has a compelling interest in ensuring public safety and reducing firearm-related crime. Prohibiting felons from possessing firearms is narrowly tailored to that interest because "[i]t is well-established that felons are more likely to commit crimes than are other law abiding citizens."

The ruling means that there are possession restrictions that satisfy strict scrutiny under Missouri state con law--at least the old Missouri state con law. It's not clear how far this might extend, however, given that the new version of article I, section 23, goes to lengths to specify that strict scrutiny applies to possession restrictions and lists just two specific exceptions.

August 19, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0)

Divided D.C. Circuit Again Finds Conflict Minerals Disclosure Violates the First Amendment

In its opinion on rehearing, a divided panel of the DC Circuit in National Association of Manufacturers v. Securities and Exchange Comm'n has held that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring a company to disclose if its products were not "DRC conflict free" violated the First Amendment. 

Rough diamonds from DRC via

In its previous decision more than a year ago in National Association of Manufacturers (NAM),  a majority of the same panel, in an opinion authored by Senior Judge Raymond Randolph and joined by Senior Judge David Sentelle, found the conflict mineral disclosure was a First Amendment violation.  In that 2014 opinion, Judge Srinivasan dissented on the First Amendment issue and contended that this opinion should be held in abeyance "pending the en banc court’s decision" in American Meat Institute v. United States Dep't of Agriculture, regarding a  First Amendment challenge to requiring country of origin labeling (COOL) of meat and meat products.  In the DC Circuit's en banc opinion a year ago, a divided court upheld the constitutionality of the COOL requirements.  The rehearing of the conflict minerals disclosure was prompted by that intervening en banc decision in American Meat Institute (AMI).  The panel majority essentially concluded that its mind was not changed by en banc opinion. [Neither of the senior judges in the panel majority participated in the en banc opinion in AMI].

Central to the controversies in both NAM and AMI is a choice of precedent: should the constitutionality of the labeling requirements be analyzed under  Zauderer v. Office of Disciplinary Counsel  or under the more demanding standard of Central Hudson v. Gas & Electric Corp. v. Public Service Commission of New York.  The DC Circuit's divided en banc opinion in AMI found that Zauderer should be applied.  In this rehearing in NAM, the panel majority (again) found that Zauderer had no applicability, but, as the opinion states, "for a different reason."  However, in sum this panel majority found that Zauderer is limited to "advertisements" at point of sale and seemed to contradict AMI.     

The panel majority did "hedge its bets":

But given the flux and uncertainty of the First Amendment doctrine of commercial speech,15 and the conflict in the circuits regarding the reach of Zauderer,  we think it prudent to add an alternative ground for our decision. It is this. Even if the compelled disclosures here are commercial speech and even if AMI’s view of Zauderer governed the analysis, we still believe that the statute and the regulations violate the First Amendment.

In applying Central Hudson, the panel majority found that the disclosure of conflict minerals has a merely speculative relationship to addressing the interest of the government in ameliorating conflict in the Democratic Republic of the Congo as a source of such minerals.  Instead, the disclosure is akin to political propaganda.  The majority interestingly cites George Orwell's Nineteen Eighty-Four for its passages regarding government redefinition ("WAR IS PEACE"), and concludes that the disclosure is not only not factual but also controversial: it compels "an issuer to confess blood on its hands." 

In dissent, Judge Srinivasan argues that any Scarlet Letter comparison is inapt: "requiring a company to disclose product information in the commercial marketplace is not the same as requiring Hester Prynne to “show [her] scarlet letter in the [town] market- place.”  He asserts that the majority is misreading Zauderer and that the en banc opinion in AMI controls.  Interestingly, he also contends that to the extent the court is requiring "proof" that disclosure of conflict minerals be linked to amelioration of the DRC conflict, the court should be deferring to executive judgments in this commercial context at least as much as the Court did in the political speech context involved in Holder v. Humanitarian Law Project. 

It seems likely that government attorneys are preparing its en banc petition. 

August 19, 2015 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)