Thursday, July 12, 2018
President Trump issued an executive order earlier this week that created a new hiring process for administrative law judges, excepting them from competitive hiring rules and examinations and authorizing their appointments to the newly created "Schedule E" of the excepted service by department heads. (H/t to conlaw student Sahil Malhotra.)
The move abolishes the centralized process currently in place for the competitive selection of ALJs and places their appointments in department heads. The move has been criticized because it could politicize the appointments of ALJs, and thus politicize their work.
The EO says that the move is in response to the Supreme Court's recent ruling in Lucia. Recall that the Court held that SEC ALJs aren't mere employees, but instead are "officers" subject to the Appointments Clause. This means that they need to be appointed by the President or the department head (or the courts). It doesn't (necessarily) mean that they need to be excepted from competitive hiring altogether, though. Still, the EO appears to take the position that competitive hiring might be a violation of the Appointments Clause, and, for that reason, excepts ALJs from competitive hiring altogether. From the EO:
As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs. Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.
The EO applies Lucia to all ALJs across the Executive Branch, even though Lucia doesn't necessarily reach that far (which the EO itself recognizes). (Lucia was based on the roles and functions of SEC ALJs, which may be different than other agencies' ALJs.)
The EO doesn't apply to current ALJs. Under Lucia, some or all of these will require re-appointment by their agency head--again, depending on how similar they are to the SEC ALJs in Lucia (an question that agencies are currently working out). And notably the EO only changes ALJs' appointment, not their removal.
Friday, July 6, 2018
Judge John A. Mendez (E.D. Cal.) yesterday granted part, but denied most, of the federal government's motion for a preliminary injunction against California's sanctuary-jurisdiction laws. The ruling is only preliminary--so goes only to the likelihood of success on the merits, and not the actual success on the merits--but it nevertheless signals the court's likely approach if and when it gets to the actual merits.
This is just the latest ruling where a state promoting a progressive immigration agenda draws on conservative-Court-created structural features of the constitution (here, federalism). In particular, Judge Mendez writes that Section 1373 (the federal prohibition on states prohibiting their officers from communicating with the feds about detained individuals in order to determine their immigration status) likely violates the Court-created anticommandeering principle in Printz and (just recently) Murphy.
The case, United States v. State of California, is the federal government's challenge to California's several sanctuary laws. Here they are, with the court's analysis, one at a time:
Assembly Bill 103's Direction for State AG Review of Detention Facilities. This provision directs the state attorney general to review and report on county, local, and private locked detention facilities used by the federal government to house detainees in civil immigration proceedings in the state. The court rejected the government's argument that this provision interfered with the federal government's exclusive authority in the area of immigration detention (and was thus preempted), because the provision amounted merely to funding an authority the state AG already had. "The Court finds no indication . . . that Congress intended for States to have no oversight over detention facilities operating within their borders. Indeed, the detention facility contracts [California] provided to the Court expressly contemplate compliance with state and local law."
Assembly Bill 405's Prohibition on Consent. This provision prohibits (on pain of fine) public and private employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a job-site or to access an employer's records on its employees. The court said that the consent prohibition violated intergovernmental immunity, because "[t]hese fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not."
Assembly Bill 405's Notice Requirement. This provision requires employers to provide notice to their employees "of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection." The court said that this prohibition was likely valid: Federal immigration law "primarily imposes obligations and penalties on employers, not employees. . . . [T]he Court finds no indication--express or implied--that Congress intended for employees to be kept in the dark."
Assembly Bill 405's Reverification Requirement. This limits an employer's ability to reverify an employee's employment eligibility when not required by law. The court said that it likely "stand[s] as an obstacle" to federal immigration law and is thus preempted.
Senate Bill 54's Prohibition on State Law Enforcement Providing Immigration Information to the Feds. This provision prohibits state law enforcement from providing certain information to federal immigration officials relating to a detained person, except as required by federal law. The court wrote that Section 1373 (which prohibits states from prohibiting their officials from sharing this kind of information) likely violates the anticommandeering principle under Murphy (the Court's most recent foray into the principle, in the New Jersey sports-gambling case), because that case held that anticommandeering applies equally when Congress tells states what they may not do. But ultimately the court dodged the anticommandeering question by giving Section 1373 a narrow reading and recognizing that SB 54 contained an exception for complying with federal law--and thus holding that the two are not in conflict. The court went on to say that SB 54 also does not create an obstacle to federal enforcement, because it merely means that state officials don't cooperate with federal enforcement (and not that they actively stand in the way of federal immigration enforcement).
Wednesday, July 4, 2018
Monday, July 2, 2018
The Fifth Circuit last week declined to dismiss a case against the Houston School District for failure to train its employees on Fourth Amendment student-search standards. The ruling shows the kind of outrageous constitutional violation, coupled with a complete failure to train employees, that could give rise to an unusual and "fortunately rare" failure-to-train constitutional case against a municipal government. Plaintiffs in these cases face a high hurdle, but this challenge shows the facts and legal arguments that just might be able to jump it.
The case, Littell v. Houston Independent School District, arose when a school assistant principal took twenty-two sixth-grade girls to the school nurse for strip searches in order to find $50 that went missing during a choir class. The searches failed to turn up the cash. Two of the girls' mothers sued the District, arguing that its failure to train its employees on Fourth Amendment search standards violated their constitutional rights. "To be clear, the argument is not that the school district's written search policies are facially unconstitutional or that they caused the alleged constitutional violation by themselves. Rather, the 'official municipal policy' on which Plaintiffs attempt to hang Monell liability is the school district's alleged policy of providing no training whatsoever regarding its employees' legal duties not to conduct unreasonable searches." The district court dismissed the case, but the Fifth Circuit reversed.
The Court applied City of Canton v. Harris, the 1988 case setting the standard for failure-to-train cases against municipalities. As applicable here, the municipal government must have "fail[ed] to train its employees concerning a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face." Here,
the school district . . . allegedly provides "no training whatsoever" as to how to conduct a lawful search. This straightforward factual allegation carries straightforward doctrinal consequences. . . . [W]e must credit Plaintiffs' factual allegations and proceed on the assumption that the school district has made the conscious choice to take no affirmative steps to instruct any of its employees on the constitutional rules governing student searches--even though at least some of those employees are regularly called upon to conduct such searches. In short, this case presents an alleged "complete failure to train" of the kind we have found actionable.
The court warned, however, that "in the thirty years since Canton issued, actual cases reaching those extremes have proved fortunately rare"--and that the plaintiffs still may face this uphill challenge on the merits.
The Fifth Circuit ruled last week in Sims v. City of Madisonville, that a nonfinal decisionmaker can be liable for a retaliatory discharge against an employee in violation of the First Amendment.
The ruling clarifies the law in the Fifth Circuit and aligns the court with all the other circuits to have addressed the issue. It also means that future nonfinal decisionmakers in the Fifth Circuit are now on notice (and the law is clear, for qualified immunity purposes): You may be liable for actions you take against employees in retaliation for their protected First Amendment speech.
The case involved a police officer's lawsuit against the city and another officer (but not the final decisionmaker) for retaliatory discharge in reprisal for his speech about the defendant-officer's official conduct. The defendant-officer sought qualified immunity.
In a somewhat unusual move, the court took up the first prong of the two-part qualified immunity test in order to get to its holding on the plaintiff's right. Qualified immunity shields an official from a constitutional tort unless (1) the official violated the plaintiff's constitutional rights and (2) the right was clearly established at the time. Because courts can address either prong first, they often (or almost always) address the second prong first, and grant qualified immunity because a right wasn't clearly established. But this means that they don't get to the first prong--whether there was a constitutional violation in the first place. That leaves the law unsettled, which then invites qualified immunity on the second prong in future like cases. Or as the court said: "Continuing to resolve the question at the clearly established step means the law will never get established."
That's exactly what happened here. Fifth Circuit law took a detour on the issue after courts misread an earlier ruling. That led to confusion in the circuit about what the law was. And that, in turn, led to a string of dismissals on qualified immunity grounds because, well, the right wasn't clearly established.
So the court joined all the other circuits to have addressed the issue and ruled that nonfinal (mid-level) decisionmakers can be liable for retaliatory action, so long as their actions were a "causal link" in the retaliatory action.
As numerous courts of appeals have recognized, individual liability for a government official who violates constitutional rights, including First Amendment ones, turns on traditional tort principles of "but-for" causation. If an individual defendant's animus against a coworker's exercise of First Amendment rights is a link in the causal chain that leads to a plaintiff's firing, the individual may be liable even if she is not the final decisionmaker.
The ruling did nothing for the plaintiff in this case, though. That's because at the time of the action (before the court ruled in this case), the law was still unsettled in the circuit--there was no clearly established right--and so the court granted qualified immunity to the defendant under the second prong.
The court also rejected the plaintiff's due process claims.
Sunday, July 1, 2018
The Sixth Circuit ruled last week in McDaniel v. Upsher-Smith Labs, Inc., that the Federal Food, Drug, and Cosmetic Act preempted a plaintiff's state failure-to-warn claims against a generic drug manufacturer for failure to include a Medication Guide with the prescription drugs.
The case narrows the already wee-bit window left open for plaintiff claims against generic manufacturers by the Supreme Court in PLIVA v. Mensing. That case held that the FDCA preempted state tort law that required manufacturers to use a stronger label. As the McDaniel majority explained:
In Mensing, patients who had taken generic metoclopramide and developed tardive dyskinesia sued the generic manufacturers for failing to update the warning labels to adequately advise of the medication's risks. They claimed that state tort law obligated these manufacturers to use a stronger label. But FDA regulations require sameness between the warning labels of a brand-name drug and its generic counterpart. The generic manufacturers were in a bind. If they strengthened the label to satisfy state law, they'd run afoul of their federal duty of sameness; if they retained the label to satisfy federal law, they'd fall short of their state-law duty to provide adequate labeling. Finding it impossible for the generic manufacturers to comply with state and federal law, the Supreme Court held that state law must give way and the tort claims were preempted.
Mensing left a narrow opening for plaintiffs' state failure-to-warn claims: They have to be based on conduct that violates the FDCA, but can't be a critical element of the claim. Chief Judge Cole explained in partial concurrence, partial dissent:
Implied preemption leaves open a narrow gap for state failure-to-warn claims against generic drug manufacturers that resides between its two forms--impossibility and obstacle preemption. The claim must be premised on conduct that violates the FDCA to avoid impossibility preemption. This is so because the FDCA requires a generic drug to have the same warnings as its brand-name counterpart (under the federal duty of sameness), so that simultaneous compliance with any state duty to supply different warnings would be impossible. At the same time, to avoid obstacle preemption, the violation of the FDCA cannot be "a critical element" of the claim [because the FDCA authorizes only the federal government, not individual plaintiffs, to enforce the FDCA].
Circuit law recognizes that a plaintiff can thread this needle: in Fulgenzi v. PLIVA, the court held that a plaintiff's failure-to-warn claim survived preemption, because the claim "relie[d] upon the adequacy of the warnings and the causation of her injuries," and not the "[f]ailure to update from one adequate warning to another." "On the merits, whether PLIVA ha[d] violated its federal duties [was] irrelevant to the adequacy of its warnings."
But the court distinguished Fulgenzi here: "But here, as explained above, adequacy of the warnings is not the issue. Rather, it is Upsher-Smith's alleged failure to ensure the amiodarone Medication Guide's availability for distribution--the failure to comply with a federal regulation that only the Federal Government may enforce--that is the ballast steadying McDaniel's claim." The court pointed to repeated references in McDaniel's complaint that the defendant failed to meet FDCA standards.
Chief Judge Cole argued that Fulgenzi applied:
McDaniel's Tennessee failure-to-warn claims are no different. In her complaint, she alleges that Upsher-Smith violated the federal duty of sameness by failing to provide warnings in the form of a medication guide. But she cannot be faulted for doing so [in order to avoid impossibility preemption, described above]. . . .
McDaniel's claims are premised on a violation of an independent Tennessee duty to warn, not federal law. "The alleged breach arises from the same act"--namely, the failure to provide a medication guide. Indeed, it must arise from the same act to avoid impossibility preemption. "[B]ut the legal basis is different." McDaniel's claims depend on whether the warnings provided were inadequate and proximately caused her late husband's death. Because the fact of a federal-law violation is not a necessary element of those claims, they are not subject to obstacle preemption . . . .
Saturday, June 30, 2018
The Ninth Circuit ruled this week that environmental non-profits lacked standing to sue Ex-Im Bank for its failure to follow statutorily prescribed procedures before authorizing loans to private corporations for two liquid natural gas projects near the Great Barrier Reef in Australia.
The case is a cautionary tale for environmental groups (or others) suing for statutory procedural violations: Develop the record.
The ruling means that the case is dismissed.
The case, Center for Biological Diversity v. Export-Import Bank of the U.S., arose when Ex-Im Bank approved funding for two liquid natural gas projects near the Great Barrier Reef. Environmental organizations sued, arguing that Ex-Im Bank failed to consult as required by the Endangered Species Act and failed to take into account environmental impacts as required by the National Historical Preservation Act.
The Ninth Circuit dismissed the case for lack of standing. The court said that the plaintiffs didn't sufficiently connect the Bank's procedural failures to the harm to the Reef, especially given that the projects had begun by the time the Bank provided funding, and therefore failed to show causation and redressability. For one, the plaintiffs couldn't show "what action could be taken by the Ex-Im Bank to alter the course of the Projects, if the Bank were to perform the procedures" under the Acts. For another, the plaintiffs "have not established that the Ex-Im Bank was a necessary party without whom the Projects would not have been realized." Both problems resulted from the plaintiffs' failure to develop the record--the funding contracts themselves (to show what Ex-Im might do if the procedures were followed) and evidence of alternative project funding (to show the significance of Ex-Im's loans on the projects).
At the same time, the court held that the case was not moot. That's because the record didn't show whether Ex-Im continued to have some leverage over the borrowers, even though the project is now complete and at least some of the loans are fully repaid.
Friday, June 29, 2018
Judge T.S. Ellis III (E.D. Va.) earlier this week rejected a motion by Paul Manafort to dismiss Special Counsel Robert Mueller's superseding indictment for bank fraud and tax charges.
Recall that Judge Berman Jackson (D.D.C.) earlier rejected a similar move by Manafort. The D.C. court's earlier ruling came in Manafort's civil challenge to Mueller's authority. In contrast, Judge Ellis's ruling this week came as a defense in Manafort's criminal case.
Judge Ellis ruled that the superseding indictment fell squarely within DOJ special-counsel regulations and Rod Rosenstein's memo authorizing Mueller's investigation and prosecution.
Judge Ellis also ruled that Mueller's appointment was valid, and that he had legal authority to issue the indictment. (This analysis came in response to Manafort's argument that Manafort had standing to challenge Mueller's indictment, notwithstanding the fact that DOJ regs specifically do not "create any rights . . . by any person . . . in any matter, civil, criminal, or administrative," based on the theory that Mueller lacks legal authority.)
The Special Counsel's legal authority is not grounded in the procedural regulations at issue here, but in the Constitution and in the statutes that vest the authority to conduct criminal litigation in the Attorney General and authorize the Attorney General to delegate these functions when necessary. And because the Special Counsel was appointed in a manner consistent with both these sources of legal authority, there is no basis for dismissal of the Superseding Indictment.
Along the way, Judge Ellis gave something of a (often highly critical) tutorial in the constitutional issues--Appointments Clause and separation of powers--involved in independent counsel and special counsel authorities, offering some scathing comments about the design of the special counsel office (though not about Mueller in particular). Here's just a flavor:
The Constitution's system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into the investigation of matters of public importance. This case is a reminder that ultimately, our system of checks and balances and limitations on each branch's powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the Law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.
Thursday, June 28, 2018
The Seventh Circuit earlier this week narrowed the nationwide injunction against AG Sessions's crackdown on Chicago's sanctuary-cities practices so that it now only applies "as to the imposition of the conditions on the City of Chicago," and not the "geographic areas in the United States beyond the City of Chicago pending the disposition of the case by the en banc court."
The ruling means that the injunction now applies only to Chicago, and not nationwide.
The ruling gave no reasons for restricting the injunction. Recall that on Tuesday, in the travel ban case, the Court declined to address the issue of whether a lower court can issue a nationwide injunction. (It didn't have to rule on this, because it upheld the travel ban.)
Wednesday, June 27, 2018
The Supreme Court today ruled that Illinois's fair-share, agency-fee requirement for non-members of public sector unions violated the First Amendment. The ruling deals a significant blow to public sector unions.
The 5-4 ruling wasn't entirely a surprise: The Court has sent several signals in recent years that fair-share was on the chopping block. The big question for the Court in today's ruling, Janus v. AFSCME, was how Justice Gorsuch would vote. He voted with the other conservatives against fair-share.
As part of the ruling, the Court overturned Abood v. Detroit Bd. of Ed., the 1977 case upholding a fair-share requirement against a First Amendment challenge. The Abood Court held that the state's interests in avoiding free-riders and maintaining labor peace justice any intrusion into First Amendment rights of non-members. Today the Court said that "Abood was poorly reasoned," that it "has led to practical problems and abuse," and that it "is inconsistent with other First Amendment cases . . . ."
The ruling means that states can no longer allow public sector unions to require non-members in a public-sector union shop to pay "agency fees" or "fair share" fees that go to the union's collective bargaining activities (but not to its political activities).
The ruling could have a devastating effect on public sector unions, or it could energize them. Time will tell.
It's unclear at this point whether the ruling could be used to challenge fair-share in the private sector.
Justice Kagan wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Sotomayor dissented separately.
Friday, June 22, 2018
The Supreme Court ruled today in Ortiz v. United States that a military officer could serve on both the military Court of Criminal Appeals (as an inferior officer) and the Court of Military Commission Review (as a principal officer) without violating the Appointments Clause. The ruling also says that the dual appointment didn't violate federal statutory law.
The ruling leaves in place a conviction upheld by a CCA panel that included an officer who also had an appointment on the CMCR (which reviews military commission decisions--different than court martial rulings--out of Guantanamo Bay).
But before the Court said anything about the dual appointment, it said quite a bit about its jurisdiction to hear the case. Justice Kagan, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, wrote that the Court (the top of the Article III branch) had jurisdiction over the appeal from the military courts (located in Article I), because "the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex." The Court thus rejected arguments by amicus Professor Aditya Bamzai that the Court lacked jurisdiction over military-court appeals because military courts aren't Article III courts. (The argument is substantially more complicated than that; check out the opinion, and Prof. Bamzai's brief.) Justice Thomas concurred, basing his conclusion that military courts exercise a judicial function (and therefore that the Court can exercise appellate jurisdiction over them) on his originalist argument that adjudicating "private" rights is a core judicial function. Justice Alito, joined by Justice Gorsuch, dissented, arguing that military courts can't exercise judicial power, because that would violate the separation of powers:
Today's decision is unprecedented, and it flatly violates the unambiguous text of the Constitution. Although the arguments in the various opinions issued today may seem complex, the ultimate issue is really quite simple. The Court and the concurrence say that Congress may confer part of the judicial power of the United States on an entity that is indisputably part of the Executive Branch. But Article III of the Constitution vests "[t]he Judicial Power of the United States"--every single drop of it--in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" in compliance with that Article. A decision more contrary to the plain words of the Constitution is not easy to recall.
On the merits, the Court held that the dual appointment didn't violate the Appointments Clause. The reason is easy: That Clause simply doesn't forbid dual service, even when one office is an "inferior office" and the other is a "principal office," especially so long as the two offices have nothing to do with each other:
The problem, [petitioner] suggests, is that the other (inferior officer) judges on the CCA will be "unduly influenced by" Judge Mitchell's principal-officer status on the CMCR.
But that argument stretches too far. This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of "incongruity" or "incompatibility" to test the permissibility of holding two offices. As Ortiz [the petitioner] himself acknowledges, he can "cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service."
And if we were ever to apply the Clause to dual office-holding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell's service on the CMCR would result in "undue influence" on his CCA colleagues. The CMCR does not review the CCA's decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. We cannot imagine that anyone on the CCA acceded to Judge Mitchell's views because he also sat on the CMCR . . . . The CAAF put the point well: "When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge." So there is no violation of the Appointments Clause.
The Court also ruled that the dual appointment didn't violate federal statutory law.
June 22, 2018 in Appointment and Removal Powers, Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Thursday, June 21, 2018
The Supreme Court today, in South Dakota v. Wayfair, upheld South Dakota's sales tax on out-of-state sellers against a Commerce Clause (or, more precisely, Dormant Commerce Clause) challenge. The ruling opens the door for states to impose sales taxes on internet sellers who lack a physical presence in the state. The ruling also overturned a pair of cases requiring a seller's "physical presence" in a state before the state could tax it.
Justice Kennedy wrote for the Court, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch.
The Court upheld South Dakota's sales tax on out-of-state sellers "as if the seller had a physical presence in the State." That qualifier was significant, because the Supreme Court had previously held in National Bellas Hess, Inc. v. Department of Revenue of Illinois and Quill Corp. v. North Dakota that a state can only impose a sales tax on a business that has a physical presence within the state. South Dakota's tax thus put the brick-and-mortar requirement in Bellas Hess and Quill squarely before the Court.
The Court struck it, and overturned those cases. The Court said that "Quill is flawed on its own terms." First, it wasn't a necessary interpretation of precedent; next, it creates market distortions by creating an incentive to avoid physical presence; and finally, it "imposes the sort of arbitrary, formalistic distinction that the Court's modern Commerce Clause precedents disavow . . . ." Moreover, internet commerce has changed things since the Court created the brick-and-mortar rule. And finally, the rule "is also an extraordinary imposition by the Judiciary on States' authority to collect taxes and perform critical public functions."
Justice Thomas concurred, arguing that "this Court's entire negative Commerce Clause jurisprudence" "can no longer be rationally justified."
Justice Gorsuch also concurred, similarly arguing "[w]hether and how much of [the Court's Dormant Commerce Clause jurisprudence] can be squared with the text of the Commerce Clause . . . are questions for another day."
Chief Justice Roberts dissented, joined by Justices Breyer, Sotomayor, and Kagan. He argued that this is a matter for Congress, given the stakes for the economy:
I agree that Bellas Hess was wrongly decided . . . . The Court argues in favor of overturning that decision because the "Internet's prevalence and power have changed the dynamics of the national economy." But that is the very reason I oppose discarding the physical-presence rule. E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.
The Supreme Court ruled today in Lucia v. SEC that SEC Administrative Law Judges are "Officers," and that their appointment by SEC employees violates the Appointments Clause. The ruling invalidates the ALJ decision before the Court and sends the case back for another hearing (before a different, validly appointed ALJ, or before the SEC itself). (The SEC "ratified" the appointment of its ALJs while this case was working its way up. But the Court didn't address the significance of the ratification, so we don't know whether this action makes the ALJs' appointments valid. The Court said it didn't matter to this case, though, because the SEC might assign the case to a validly appointed ALJ (outside the ratification) or the SEC itself.)
The ruling may affect the appointments, and decisions, of the many ALJs across the executive branch. (This depends on how they were appointed, and under what authority.) Under the Court's ruling, going forward, ALJs who exercise authority similar to the SEC ALJs will satisfy the Appointments Clause so long as they are appointed by the President, a court, or the head of a department. (The parties agreed that SEC ALJs were "inferior officers," and therefore didn't require presidential nomination and Senate advice and consent, as "principal officers" do. More on that below.)
Justice Kagan wrote for the Court, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Alito, and Gorsuch.
The Court, relying on Freytag v. Commissioner, said that an "Officer" under the Appointments Clause is someone who (1) holds a continuing office and (2) exercises "significant authority" pursuant to the laws of the United States. (The Court distinguished between "Officer" and "employee," who is not covered by the Appointments Clause at all.) The Court said that SEC ALJs easily meet these two requirements. As to the first, it held that they plainly occupy a continuing office. As to the second, it said that Freytag "says everything necessary to decide this case":
the Commission's ALJs exercise the same "significant discretion" when carrying out the same "important functions" as STJs do [in Freytag]. Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings--indeed, nearly all the tools of federal trial judges. . . . So point for point--straight from Freytag's list--the Commission's ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries.
And at the close of those proceedings, ALJs issue decisions much like that in Freytag--except with potentially more independent effect. . . . By contrast [to Freytag], the SEC can decide against reviewing an ALJ decision at all. And when the SEC declines review (and issues an order saying so), the ALJs decision itself "becomes final" and is "deemed the action of the Commission." That last-word capacity makes this an a fortiori case: If the Tax Court's STJs are officers, as Freytag held, then the Commission's ALJs must be too.
Because the ALJs are "Officers," they have to be appointed by the President, the courts, or the head of the department, here the SEC. And because they were appointed by SEC employees, and not the SEC itself, their appointment was invalid, as was the ALJ's ruling in this case.
Importantly, the Court assumed, as agreed by the parties, that the ALJs were "inferior officers," not "principal officers." This means that they can be appointed by the President, the courts, or the head of a department. This, in turn, means that SEC ALJs--and any other ALJs who weren't appointed by the head of a department--have to be reappointed by the head of a department under law. It also means that this case says nothing about the line between inferior officers and principal officers; it only speaks to the difference between "Officers" and "employees" (which are not covered by the Appointments Clause at all and are therefore not at all subject to Appointments Clause requirements).
The Court ordered the SEC to grant a new hearing to the petitioner, with a different and validly appointed ALJ or with the SEC itself.
Justice Thomas, joined by Justice Gorsuch, concurred, and argued that "Officer," under an original understanding, should sweep much, much more broadly, to "all federal civil officials 'with responsibility for an ongoing statutory duty.'"
Justice Breyer argued that the Court could've resolved the case under the Administrative Procedure Act (which provides for the appointment of ALJs) and Free Enterprise Fund:
I would not answer the question whether the Securities and Exchange Commission's administrative law judges are constitutional "Officers" without first deciding the preexisting Free Enterprise Fund question--namely, what effect that holding would have on the statutory "for cause" removal protections that Congress provided for administrative law judges. If, for example, Free Enterprise Fund means that saying administrative law judges are "inferior Officers" will cause them to lose their "for cause" removal protections, then I would likely hold that the administrative law judges are not "Officers," for to say otherwise would be to contradict Congress' enactment of those protections in the Administrative Procedure Act. In contrast, if Free Enterprise Fund does not mean that an administrative law judge (if an "Office[r] of the United States") would lose "for cause" protections, then it is more likely that interpreting the Administrative Procedure Act as conferring such status would not run contrary to Congress' intent. In such a case, I would more likely hold that, given the other features of the Administrative Procedure Act, Congress did intend to make administrative law judges inferior "Officers of the United States."
Justice Breyer, joined by Justices Ginsburg and Sotomayor, also would have allowed the same ALJ to re-hear the case on remand.
Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that "Commission ALJs are not officers because they lack final decisionmaking authority."
Tuesday, June 19, 2018
Judge Julie A. Robinson (D. Kansas) ruled yesterday that Kansas's requirement that motor-voter applicants provide proof of citizenship violated the National Voter Registration Act and the constitutional right to vote. In addition, Judge Robinson took Kansas Secretary of State Kris Kobach to task for his conduct over the course of the case, and imposed a remarkable sanction against him.
The ruling should end Kansas's documentary-proof-of-citizenship law, but we'll likely see an appeal (even if almost certainly futile, given the record).
The case tests Kansas's law that motor-voters show proof of citizenship when registering to vote against the NVRA's requirement that states automatically register voters when they apply for a driver's license--and its prohibition on states requiring more information than "necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process." Judge Robinson previously issued a temporary injunction against Kansas's law, upheld by the Tenth Circuit.
As to NVRA preemption, the court applied the Tenth Circuit's rule on NVRA preemption. That rule says that the attestation requirement in Section 5 presumptively satisfies the minimum-information requirement for motor-voter registration. In order to rebut the presumption, the defendant has to show that "they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the Federal Form" in order to adopt more strenuous information requirements.
The court said that Kobach simply didn't prove that a substantial number of noncitizens have successfully registered using the Federal Form, and that there wasn't another, less burdensome way to enforce the state's citizenship requirement:
Defendant was given the opportunity to retain experts and marshal evidence to meet his burden of demonstrating that "a substantial number of noncitizens have successfully registered to vote under the attestation requirement" in order to rebut the presumption that attestation meets the minimum-information requirement of Section 5 and that nothing less than DPOC is sufficient to meet his eligibility-assessment and registration duties under the NVRA. As described below, the Court finds that on the trial record Defendant has failed to make a sufficient showing on the first inquiry. Moreover, even if Defendant could demonstrate a substantial number of noncitizen registrations, he has not demonstrated that nothing less than the DPOC law is sufficient to enforce the State's citizenship eligibility requirement.
As to the right to vote, Judge Robinson weighed DPOC's benefits and burdens, distinguished the balance in Crawford v. Marion County, and ruled that DPOC violated the right to vote. "Instead, the DPOC law disproportionately impacts duly qualified registration applicants, while only nominally preventing noncitizen voter registration."
Finally, Judge Robinson found that Kobach engaged in a repeated "pattern and practice . . . of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial." "[G]iven the repeated instances involved, and the fact that Defendant resisted the Court's rulings by continuing to try to introduce such evidence after exclusion, the Court finds that further sanctions are appropriate . . . ." The court ordered Kobach to attend six additional CLE hours (over and above the state's regular requirements), pertaining to federal or Kansas civil rules of procedure or evidence.
Saturday, June 16, 2018
The Seventh Circuit this week denied the Justice Department's request to stay the nationwide injunction against the Department in Chicago's sanctuary cities case. The order says that the Seventh Circuit will wait until the Supreme Court rules in Trump v. Hawaii, the travel-ban case, before ruling on the issue.
Recall that a three-judge panel of the Seventh Circuit upheld a nationwide injunction issued by the district court against the Department enforcing two conditions imposed by the Attorney General on the DOJ-JAG/Byrne Grant program. DOJ filed a motion to stay the nationwide injunction pending appeal, and the full Seventh Circuit agreed to review the issue.
This latest round of jockeying came when DOJ sent a letter this week to the Seventh Circuit saying that if the Seventh Circuit didn't rule on its motion to stay the nationwide injunction by COB on June 18, DOJ would take it up with the Supreme Court. The Seventh Circuit interpreted the letter as a motion for an immediate ruling on DOJ's motion for a stay, and rejected it. The court said that it expected that the Supreme Court would have something to say about this in the travel-ban case, and it would await word from the high Court before ruling here.
The ruling makes it likely (or certain?) that DOJ will try to take this (the nationwide injunction) to the Supreme Court as early as Monday.
Thursday, June 14, 2018
Judge Rosemary Collyer (D.D.C.) ruled yesterday that a journalist's due process claim against the government for including him on a drone-strike kill list can move forward. Judge Collyer ruled that the journalist had standing, and that his due process challenge did not present a non-justiciable political question.
The case originally involved two journalists who challenged their inclusion on the government's drone-strike kill list. They lodged a series of challenges, including violation of the Administrative Procedure Act (because inclusion violated the government's criteria for inclusion, adopted under President Obama); violations of the EO banning assassinations, the Geneva Conventions, the International Covenant on Civil and Political Rights, and federal law; and violations of due process.
The government moved to dismiss the case for lack of standing and because it raised a non-justiciable political question. The court granted the motion in part and denied it in part.
The court ruled that one of the plaintiffs lacked standing, because he failed sufficiently to allege a harm. The court said that the other plaintiff demonstrated harm (and causation and redressability), but that claims based on the APA, the EO, the Geneva Conventions, the ICCPR, and related federal law all raised a political question. As to the APA claim, the court said that it had no judicially manageable standards for resolving it. The court said that the presidential guidance for inclusion on the kill list didn't provide sufficiently determinate standards for judicial review. (The more vague a government policy, the less likely a plaintiff can challenge it under the APA.) As to the other claims, the court merely said that "the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action, which is prohibited by the political question doctrine."
But as to the due process claim, the court concluded that there was no political-question-doctrine bar to moving forward. The court emphasized that the plaintiff's claim was against his inclusion on the kill list, and not that a drone strike was invalid (which might have raised a political question):
[The plaintiff] does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.
The ruling does not touch on the merits; it merely allows the due process portion of one plaintiff's case to move forward. Still, getting over the political question doctrine in a case like this is a significant victory for the plaintiff.
June 14, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0)
Saturday, June 9, 2018
Sixteen states plus the District of Columbia responded this week to the Justice Department's brief in the Texas Obamacare challenge. The intervenor-defendants argue that (1) the individual mandate remains within congressional authority under its taxing power (even post Tax Cuts and Jobs Act, which set the tax-penalty at $0), (2) if the individual mandate is unconstitutional, the remedy is to strike that portion of the TCJA setting the tax-penalty at $0 and reinstate the original tax amount (to save it), and (3) even if it's unconstitutional, the rest of the ACA is severable (and thus savable). The states also argue that the plaintiffs lack standing, because they can't be harmed by a $0 tax.
Here's the gist:
First, Plaintiffs are unlikely to prevail on the merits. Continuous production of revenues is not a constitutional requirement for a tax, and the minimum coverage requirement will continue to produce revenue for years to come. If the Court nevertheless concludes that the minimum coverage requirement will become unconstitutional once it ceases to generate revenue, under long-standing and controlling Supreme Court precedent, the proper remedy is to strike the unconstitutional amendment and revert back to hte prior statutory provision which was upheld in NFIB.
If the Court reaches the severability question, it should sever the unconstitutional provision and leave the remainder of the ACA intact, as the Supreme Court has done in almost every case over the past century. The touchstone for any decision about remedy is legislative intent, which a court cannot use its remedial powers to circumvent. Here, the Congress that passed the TCJA expressly and intentionally left the rest of the ACA untouched. Striking down the entire ACA would disregard that intent and impose an outcome that Congress chose not to achieve through the legislative process. Even if the severability inquiry turned on the intent of the Congress that enacted the ACA (and it does not), Plaintiffs have not come close to demonstrating that it is "evident" that Congress would have wished for the entire ACA to be struck down just because a later Congress reduced the tax for not maintaining health insurance to $0.
Friday, June 8, 2018
The federal government argued yesterday in the Texas Obamacare case that (1) Obamacare's individual mandate is now unconstitutional and (2) therefore the Obamacare pre-existing-conditions ("guaranteed issue") and "community rating" provisions must fall.
The filing (by the federal government as defendant in the case) is an unusual instance of the Justice Department refusing to defend a federal law in court. (Some states, led by California, have moved to intervene to defend the law.)
The filing is also notable for its attempt to pick off just three provisions of Obamacare--the individual mandate, the ban on pre-existing-conditions discrimination, and the community rating provision--while keeping the rest of the Act intact. (This contrasts with the plaintiffs' approach, which seeks to strike all of Obamacare. In this way, the federal government's position--as sweeping as it is--is nevertheless more modest than the position of Texas and the other plaintiffs in the case.)
Here's a summary of the federal government's argument:
1. The individual mandate as it stands effective January 2019 is unconstitutional. That's because Congress, in the Tax Cuts and Jobs Act, enacted earlier this year, eliminated the tax-penalty for not having health insurance beginning in January 2019. Without the tax-penalty, the individual mandate no longer can raise revenue for the federal government. If it can't raise revenue, it can't fall within Congress's power to tax. And, as the Court ruled in NFIB, it also can't fall within Congress's power to regulate interstate commerce. Therefore, the individual mandate, as it will read in January 2019, is unsupported by congressional authority, and is unconstitutional.
2. The requirements that health insurers accept individuals with pre-existing conditions (or the prohibition on discrimination by pre-existing conditions, the "guaranteed issue" provision) and that insurers charge rates within a particular range for a particular community (the "community rating" provision) are inseverable from the individual mandate. (This is the position that the federal government also took in defending the individual mandate in NFIB.) Here's why: Congress has authority under the Commerce Clause to prohibit discrimination and regulate insurance rates. But if Congress only enacted those provisions, without an individual mandate, rates would go through the roof. The only way to keep rates affordable is to require everybody (including people who are healthy now) to get into the insurance pool. That's the individual mandate. Thus, the individual mandate and the other two requirements go hand-in-hand in achieving Congress's goal under the ACA of keeping rates affordable. (The federal government also had a standing argument for why it's only challenging these two provisions: the individual plaintiffs in the case only alleged harms related to these two provisions, and not to the rest of Obamacare.)
3. Because the guaranteed-issue and community-rating provisions are inseverable from the unconstitutional individual mandate, they, too, must fall. But other key portions of Obamacare--including provisions "concerning various insurance regulations, health insurance exchanges and associated subsidies, the employer mandate and Medicaid expansion, and reduced federal healthcare reimbursement rates for hospitals"--are severable, and therefore can remain in place.
It's not clear from the filing whether and how this argument might affect other portions of Obamacare not mentioned, most notably the requirement that insurers allow parents to keep their children on their insurance until age 26.
The government opposed the plaintiffs' request for a preliminary injunction and instead argued that the court should issue declaratory relief, at least until January 2019.
Thursday, June 7, 2018
Senior Judge Michael M. Baylson (E.D. Pa.) ruled in favor of Philadelphia yesterday in its sanctuary-cities case against the Trump Administration. The court held that the three immigration-enforcement conditions that Attorney General Jeff Sessions imposed on sanctuary cities as conditions of receipt of federal DOJ JAG grants violated federal law and the Constitution.
The ruling goes farther than the Seventh Circuit case also striking the conditions, in that Judge Baylson also ruled Section 1373 unconstitutional. Notably, that portion of the court's decision was based on the Supreme Court's recent ruling in Murphy v. NCAA.
Philadelphia challenged the three conditions that AG Sessions unilaterally imposed on sanctuary cities in exchange for federal JAG grant money--(1) the requirement that local jurisdictions provide ICE officials access to local prisons, (2) the requirement that local jurisdictions notify ICE when they release aliens from local prisons, and (3) the requirement that local jurisdictions certify compliance with 8 U.S.C. Sec. 1373. (1373 says that a local government can't restrict its officers from communicating with ICE about the citizenship or immigration status of a person.)
The court held that the first two conditions amounted to ultra vires conduct not authorized by Congress and violated the separation of powers and the Spending Clause (similar to the Seventh Circuit ruling). The court also held that these conditions were arbitrary and capricious under the Administration Procedure Act (because the government failed to support the putative public-safety reasons for the conditions).
The court went on to strike Section 1373 under the Court's approach in Murphy:
8 U.S.C. Secs. 1373(a) and 1373(b) by their plain terms prevent "Federal, State, or local government entit[ies] or official[s] from" engaging in certain activities. These provisions closely parallel the anti-authorization condition in [the Professional and Amateur Sports Protection Act] which was at issue in Murphy. Specifically, the PASPA provision violated the Tenth Amendment because it "unequivocally dictates what a state legislature may and may not do." Sections 1373(a) and (b) do the same, by prohibiting certain conduct of government entities or officials.
The court said that AG Sessions couldn't condition the receipt of federal funds on compliance with an unconstitutional provision like Section 1373, so the third condition, like the first and second, was also invalid.
Friday, June 1, 2018
The Seventh Circuit this week rebuffed a First Amendment challenge to the phrase "In God we Trust" on our currency by a non-theistic Satanist. The unsurprising ruling allows the government to continue to print that phrase on money.
The plaintiff challenged the phrase under the Establishment Clause, the Free Exercise Clause, and the Speech Clause, among others. The court rejected each.
As to the Establishment Clause, the court said that the phrase wasn't an endorsement of religion, that it didn't coerce religious beliefs, and that it wasn't based on a forbidden religious purpose. In short, the court said that the phrase is simply a part of our nation's heritage:
The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation's religious heritage. Examples include the phrase "one nation under God," which has been in the Pledge of Allegiance since 1954, as well as the National Day of Prayer, which has existed in various forms since the dawn of the country and is now codified [in the U.S.C.]. Moreover, when the religious aspects of an activity account for "only a fraction," the possibility that anyone could see it as an endorsement of religion is diluted. In the case of currency, the motto is one of many historical reminders; others include portraits of presidents, state symbols, monuments, notable events such as the Louisiana Purchase, and the national bird. In this context, a reasonable observer would not perceive the motto on currency as a religious endorsement.
As to free exercise, the court said that the plaintiff's "claim fails because the motto's placement on currency has the secular purpose of recognizing the religious component of our nation's history."
As to free speech, the court rejected the plaintiff's claim that the phrase amounted to forced speech, because nobody would regard the phrase as the plaintiff's own speech.
The court also rejected the plaintiff's RFRA claim (no substantial burden on the plaintiff's practice of Satanism) and his equal protection claim (because the government had at least one legitimate objective, "acknowledging an aspect of our nation's heritage").