Thursday, September 20, 2018
The Ninth Circuit ruled in Fikre v. FBI that the plaintiff's due process challenges to his inclusion on the government's no-fly list were not moot, even though the government took him off the list during the litigation. The ruling means that the plaintiff's case challenging his inclusion on the no-fly list can move forward.
The case arose from Yonas Fikre's inclusion on the no-fly list and his several and significant resulting harms. Fikre alleged that his inclusion violated substantive and procedural due process, and he sought declaratory and injunctive relief. During the litigation, the government removed Fikre from the list, however, and moved to dismiss the case as moot. The district court granted the motion.
The Ninth Circuit reversed. The court ruled that Fikre's case came under the voluntary cessation exception to mootness--that signs pointed to the government opportunistically removing him, and that the government could reinstate him at any time. The court explained:
To begin, the FBI's decision to restore Fikre's flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. . . .
Moreover, the government has no assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. . . .
Finally . . . we note that Fikre's removal from the No Fly List does not "completely and irrevocably eradicate the effects of the alleged violation[s]."
The ruling sends the case back to the district court for further proceedings.
Sunday, August 26, 2018
Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday in American Federation of Government Employees v. Trump that President Trump's executive orders sharply curtailing federal employees' collective bargaining and labor rights violate federal labor law. The ruling means that most of the EOs' limitations are invalid.
Together, the EOs set a timeframe for completion of collective bargaining negotiations; removed certain matters from the bargaining table completely; set certain procedures for negotiations; limited the extent to which federal employees could engage in union work during business hours; limited the government resources that union members could use for union activities; made it easier for the government to dismiss federal employees for unsatisfactory performance.
The court recognized that the EOs are subject to restrictions in statutory law, but that "the President could always theoretically claim that he possesses the inherent constitutional authority to take a given action, regardless of any conflict with a congressional statute and his resulting lack of statutory authority." "But Defendants have made no such assertion in the instant case; instead, they have 'expressly recognized statutory limitations on the President's authority to act in this area.'" The court, therefore, didn't rule on the constitutional question.
The government's omission of a constitutional argument might seem surprising, given the President's recent constitutional extrapolation from the Court's ruling in Lucia in an EO designed to rein in control over executive branch ALJs. That move seemed like an attack, under cover of Lucia and claimed plenary Article II authority over the executive branch, on civil service laws that in any way restrict the President's claimed authority to hire and fire whomever he wants. That attack would seem to apply equally here. But the government didn't press it.
On the statutory questions, Judge Jackson summarized:
[T]he Order provisions concerning matters such as the reduction of the availability of and support for official time activities [to engage in union-related work], and the specific prohibitions against bargaining over [certain matters], or hte unilateral narrowing of any negotiated grievance procedures, dramatically decrease the scope of the right to bargain collectively, because, in the [Federal Service Labor-Management Relations Act], Congress clearly intended for agencies and unions to engage in a broad and meaningful negotiation over nearly every "condition of employment." Likewise, the Orders' requirements, such as the directive that agencies should "ordinarily" seek to conclude collective bargaining negotiations within five to seven months, or should limit the applicability of grievance procedures "[w]henever reasonable[,]" effectively instruct federal agencies and executive departments to approach collective bargaining in a manner that clearly runs counter to the FSLMRS's expectation of good-faith conduct on the part of negotiating parties. . . .
[T]he only challenged provisions of [the EOs] that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.
Friday, August 24, 2018
The Ninth Circuit last week authorized a constitutional tort under Bivens against an ICE official for forging a document that would have led to the plaintiff's deportation. (H/t Theo Lesczynski.) The ruling means that the plaintiff's case can move forward.
The ruling is the second time in recent weeks that the Ninth Circuit authorized a Bivens action in a "new context." (The earlier case involved a Border Patrol officer's cross-border shooting of a Mexican youth.)
The case, Lanuza v. Love, arose when ICE Assistant Chief Counsel Jonathan Love submitted an I-826 form, forged with Lanuza's signature, at Lanuza's immigration hearing. The form indicated that Lanuza accepted voluntary departure to Mexico in 2000, breaking Lanuza's period of accrued continuous residency in the U.S. Without this continuous residency, Lanuza didn't qualify for cancellation of removal; and, based on the forged document, the immigration judge denied cancellation and ordered Lanuza removed. The Board of Immigration Appeals affirmed.
Lanuza then hired a new attorney, who discovered the forgery. (Among other things, the forged document referred to the "U.S. Department of Homeland Security," which did not yet exist at the time that Lanuza purportedly signed the form.) The agency then adjusted Lanuza's status to lawful permanent resident.
Lanuza brought a Bivens claim against Love for violation of his Fifth Amendment rights. The district court dismissed the case, but the Ninth Circuit reversed.
The court ruled that the case raised a "new context," but that no special factors counseled against a Bivens remedy. Indeed, the court said that certain factors favored a Bivens remedy in a case like this, where a government official submitted false evidence in a quasi-judicial proceeding:
Indeed, there are few persons better equipped to weigh the cost of compromised adjudicative proceedings than those who are entrusted with protecting their integrity. And, more often than not, the Judicial Branch, not Congress or the Executive, is responsible for remedying circumstances where a court's integrity is compromised by the submission of false evidence. Thus, it falls within the natural ambit of the judiciary's authority to decide whether to provide a remedy for the submission of false evidence in an immigration proceeding.
The court also denied qualified immunity.
The ruling sends the case back to the district court for proceedings on the merits.
Wednesday, August 22, 2018
The Fifth Circuit last week rejected a challenge by faculty to a Texas law that allows concealed carry in public university classrooms. The ruling ends the challenge, and upholds the state Campus Carry Act and University of Texas at Austin policies permitting concealed carry.
The case, Glass v. Paxton, arose when faculty at the University of Texas challenge the Campus Carry Act and UT policies that permitted concealed carry for certain students on campus. Faculty challenged the Act under the First Amendment, Second Amendment, and Equal Protection Clause. The court rejected each of those challenges.
As to the First Amendment, the court held that the plaintiff lacked standing because she couldn't show, under the "certainly impending" standard of Amnesty International, "that a license-holder will illegally brandish a firearm in a classroom."
As to the Second Amendment, the court rejected the plaintiff's argument that the concealed carry on campus wasn't "well regulated." The court said that the "well regulated" requirement is part of the Second Amendment's prefatory clause, and that the Court in Heller ruled "that the Second Amendment's prefatory clause does not limit its operative clause."
Finally, as to equal protection, the court said that Texas's interests in the law--public safety and self-defense--were sufficient to pass rational basis review. "Here, Texas's rationales are arguable at the very least."
Saturday, August 18, 2018
The D.C. Circuit ruled in American Freedom Defense Initiative v. WMATA that the D.C. Metro's restriction on certain advertisements was a view-point neutral regulation in a nonpublic forum. But the court nevertheless remanded the case for a determination whether the restriction was "reasonable."
The ruling sends the case back to the district court for further proceedings. "Reasonableness" is usually a very low bar (thus favoring Metro), but the Court just this Term determined that a view-point neutral regulation in a nonpublic forum wasn't "reasonable." That case, Minnesota Voters Alliance v. Mansky, leaves the door cracked for AFDI on remand.
The ruling follows the recent Archdiocese of Washington v. WMATA, where the same court ruled that Metro's restriction on religious advertising was a permissible view-point neutral regulation in a nonpublic forum.
The AFDI case arose when AFDI sought to place an ad on Metro that, according to AFDI, was designed to "make the point that the First Amendment will not yield to Sharia-adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials." Around the same time, Metro was considering restricting ads, given the increasing number of complaints about ads disrespecting President Obama and ads on hot-button issues. A Metro employee told the Board that AFDI's proposed ad was the "straw that broke the camel's back," and the Board approved a temporary moratorium. The Board then rejected AFDI's ad under the moratorium, and later issued permanent restrictions on certain ads. The permanent policy, now in place, prohibits ads on "an issue on which there are varying opinions," politics (pro or con any candidate), religion (again, pro or con), and "industry position[s] or industry goal[s] without direct commercial benefit to the advertiser" (again, pro or con).
AFDI sued, arguing that the moratorium (but not the permanent policy) violated the First Amendment.
The court ruled first that the case was not moot. The court said that the permanent policy represented the same restrictions under the moratorium, and so AFDI's claim against the moratorium was still a live dispute, but now against the permanent policy. (Judge Karen LaCraft Henderson dissented on this point and thus would have dodged the merits.)
The court next said that Metro was a nonpublic forum (under Archdiocese of Washington), and that the restrictions were view-point neutral. The court rejected AFDI's arguments that the policy was view-point discriminatory because (1) Metro adopted the policy in response to AFDI (no evidence of this, and the straw-that-broke-the-camel's-back comment only meant that AFDI's ad, along with a whole bunch of other ads, led to the policy), (2) the policy was facially view-point based (not so under Lehman v. City of Shaker Heights), and (3) the religion restriction is inherently view-point based (AFDI didn't sufficiently develop or press this argument).
But while a view-point neutral regulation in a nonpublic forum usually satisfies the First Amendment, it also has to be reasonable. The court said that there was enough of a question here to remand the case for a determination of reasonableness under this Term's Minnesota Voters Alliance v. Mansky (holding that a restriction on political attire in a poling place wasn't reasonable).
Wednesday, August 15, 2018
Eighth Circuit Upholds Public Union Exclusive Representation Designation Against First Amendment Challenge
The Eighth Circuit this week held that a Minnesota law that authorizes public employees to organize and to designate an exclusive representative to negotiate employment terms with the state did not violate the First Amendment.
The case, Bierman v. Dayton, may represent a next front, after Janus, in First Amendment challenges to public-sector unions. The Eighth Circuit quoted the time-bomb in Janus (see below) that could well foretell the end of exclusive representation, even without a fair-share requirement.
The case tested Minnesota's Public Employee Labor Relations Act, as applied to in-home care providers for disabled Medicaid recipients. The Act permits those employees to organize and designate an exclusive bargaining representative, but it doesn't require fair-share fees for non-union members. Still, dissenting home-health-care workers challenged the Act, arguing that it compelled them to associate with a union that they want no part of. (Again: They were not charged an agency fee or fair-share fee. Their claim was that the state, merely by allowing their union colleagues to designate an exclusive bargaining representative, violated their First Amendment rights.)
The court flatly rejected this claim, pointing to Minnesota State Board for Community Colleges v. Knight, which, the court said, squarely answered the question.
As to Janus's impact on this kind of case, the court wrote,
Recent holdings in [Janus] and [Harris] do not supersede Knight. Under those decisions, a State cannot compel public employees and homecare providers, respectively, to pay fees to a union of which they are not members, but the providers here do not challenge a mandatory fee. Janus did characterize a State's requirement that a union serve as an exclusive bargaining agent for its employees as "a significant impingement on associational freedoms that would not be tolerated in other contexts," but the decision never mentioned Knight, and the constitutionality of exclusive representation standing alone was not at issue. Of course, where a precedent like Knight has direct application in a case, we should follow it, even if a later decision arguably undermines some of its reasoning.
Monday, August 13, 2018
Judge Dabney L. Friedrich (D.D.C.) today rejected challenges to Special Counsel Robert Mueller's office and authority by a defendant in the criminal case against thirteen Russian individuals and three corporations. The ruling in U.S. v. Concord Management says that the special counsel office is constitutional and that Special Counsel Mueller was acting within his authority in bringing this case. The ruling allows the case to go on.
The court first ruled that the special counsel is an "inferior" office under the Appointments Clause and was validly appointed by the Acting AG. The court said that different features of the office pointed in both the "principal officer" and "inferior officer" direction under Edmond, but ultimately the revocability of DOJ's special counsel regulations mean that the office is "inferior":
The regulations' revocability is "[t]he crucial difference" between the Special Counsel regulations and a statute that seeks to bind the executive branch from without, and it is this different that ensures the Special Counsel is an inferior officer. That is, to the extent that the regulations threaten to impair the Acting Attorney General's ability to direct and supervise the Special Counsel, the Department of Justice may simply rescind or revise the regulations at any time. This ability to rescind or revise the regulations as needed means that the Special Counsel is subject to the Acting Attorney General's plenary supervision. It also makes the Special Counsel effectively removable at will: if the for-cause provision stands in the way, the Acting Attorney General need only rescind or revise the regulation in order to remove the Special Counsel.
The court also ruled that the special counsel was an "inferior office" under Morrison v. Olson.
The court went on to say that the office didn't violate the separation of powers. In particular, the court ruled that even if the special counsel regulations are nonbinding on the special counsel (as Concord argued), then "the Special Counsel would be subject to the Acting Attorney General's plenary control by statute. Because executive power would remain wholly within the executive branch, no separation-of-powers problem would arise." Moreover, the court said that the AG had plenty of statutory authority to issue the special counsel regs.
Finally, the court said that Special Counsel Mueller wasn't acting outside of his appointment authority in bringing this particular case.
Wednesday, August 8, 2018
The D.C. Circuit yesterday rejected a habeas claim by a long-time (17 years) Guantanamo detainee who argued that the basis for his detention has "unraveled" and that the conflict that originally authorized his detention has ended. In so ruling, the court affirmed that the 2001 AUMF, along with the 2012 National Defense Authorization Act, remain in force, strong as ever, and continue to authorize his detention.
The claimant, a Yemeni who, according to the government, trained with and fought alongside the Taliban, filed an earlier habeas petition in 2005. The courts rejected that petition, concluding that "the Government's account of Al-Alwi'd Taliban-related activities was supported by a preponderance of the evidence, thereby making Al-Alwi an enemy combatant who could lawfully be detained."
This time, however, he claimed that even if his earlier detention was authorized, the authority for his ongoing detention is stale. The court rejected that argument.
The court ruled first that the "[a]uthority to detain has not unraveled." It said that the AUMF retains its original force so long as "hostilities between the United States and the Taliban and al Qaeda continue." "Both [the AUMF and the National Defense Authorization Act] authorize detention until the end of hostilities. Although hostilities have been ongoing for a considerable amount of time, they have not ended."
The court ruled next that "[a]uthority to detain has not expired." The court said that "termination" is "a political act," and that it hasn't yet occurred. "The Executive Branch represents that armed hostilities between the United States forces and those entities persist."
The ruling underscores that the AUMF will remain in full force until the political branches say that hostilities have ended.
The Ninth Circuit ruled yesterday in Rodriguez v. Swartz that a case against a U.S. Border Patrol agent for shooting and killing a Mexican youth across the U.S.-Mexican border can go forward. The court denied qualified immunity for the agent and ruled that the plaintiff had a valid Bivens claim.
This case is yet another cross-border shooting case, different than Hernandez v. Mesa. Recall that the Court remanded that case for further proceedings on the Bivens question. The Fifth Circuit held that Bivens did not provide a remedy in that case, because the case raised a new Bivens context, and because "extending Bivens would interfere with the political branches' oversight of national security and foreign affairs"; "would flout Congress's consistent and explicit refusals to provide damage remedies for aliens injured abroad"; and "would create a remedy with uncertain limits."
The Ninth Circuit ruling thus splits with the Fifth Circuit.
Rodriguez arose when a Border Patrol agent shot and killed a Mexican youth across the border for no apparent reason whatsoever, and without knowing the youth's nationality. The youth's representatives sued under Bivens.
The Ninth Circuit first denied qualified immunity to the agent. The court said that the Fourth Amendment applies to this kind of situation, that it clearly prohibits this kind of "seizure," and that it was clearly established at the time that the agent couldn't shoot the youth. The court distinguished Verdugo-Urquidez, saying that the agent in this case "acted on American soil subject to American law."
The court went on to rule that Bivens provided a remedy. The court said that while this case indeed presented a new Bivens context, Rodriguez had no other adequate remedy, and there were no "special factors" counseling hesitation.
Judge M. Smith dissented, arguing that Bivens did not extend to this case, and that the court's ruling created a circuit split and disregarded Supreme Court law.
Sunday, August 5, 2018
The Fifth Circuit ruled in Seals v. McBee that Louisiana's statute that criminalizes "threats" is unconstitutionally overbroad in violation of the First Amendment. The ruling strikes the state law.
The case arose when officers arrested Travis Seals for an unspecified reason and claimed that Seals resisted arrest and threatened them (with physical harm and legal action). The DA declined to prosecute. Seals then filed a civil action against officers for malicious prosecution, conspiracy, and a First Amendment violation. In particular, Seals said that the Louisiana statute that criminalizes "threats" was unconstitutionally overbroad. (The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [specified persons, including public officers and public employees] with the intent to influence his conduct in relation to his position, employment, or duty.)
The court first ruled that Seals had standing to sue, even though the DA disavowed bringing charges (but also that the government could bring charges as late as December 2019):
Seals's position mirrors that of the plaintiffs in United Farm Workers. He already bet the farm. And when he violated Section 14:122, he was arrested. Louisiana has disavowed prosecution but concedes that Seals actually violated the statute and is legally subject to prosecution. Moreover, Louisiana has introduced evidence of other enforcement actions that are currently being pursued. Viewed alongside a review of Louisiana's caselaw, that evidence shows that Section 14:122 is not a mere paper tiger but has a real history of enforcement. Because the scales are at least as balanced as in United Farm Workers, Seals, too, has standing to challenge Section 14:122.
The court ruled next that the statute was substantially overbroad in violation of free speech:
"[H]ere the statute sweeps so broadly, encompassing any number of constitutionally protected threats, such as to boycott communities, to run against incumbents, and to sue police officers. Hence it is overbroad."
Friday, August 3, 2018
A group of cities and a couple individuals filed suit yesterday against the Trump Administration, arguing that the Administration's efforts to sabotage the Affordable Care Act violate the Administrative Procedure Act and the Take Care Clause.
The complaint takes aim at the "2019 Rule," a final rule promulgated by the Centers for Medicare and Medicaid Services that "roll[s] back protections that the Act guarantees, make[s] it more difficult to enroll in ACA-compliant plans, and drive[s] up the cost of ACA-compliant plans." The plaintiffs argue the Rule violates the APA, because Administration officials "have failed to provide adequate reasons, and failed to adequately respond to comments, for many provisions of the 2019 Rule, such that they are 'arbitrary' and 'capricious.' In addition, as detailed above, many provisions of the 2019 Rule violate the [ACA], and therefore are not 'in accordance with law.'"
The plaintiffs also challenge various other well publicized Administrative efforts to undermine, sabotage, and eviscerate the Act, and argue that these violate the President's duty to "take care that the laws be faithfully executed."
The plaintiffs argue that they have standing, because the Administration's actions have increased insurance rates caused cities to pay more for uncompensated care.
Thursday, August 2, 2018
The Sixth Circuit ruled this week in Jones Brothers, Inc. v. Sec'y of Labor that administrative law judges in the Mine Safety and Health Review Commission are "inferior officers" and were invalidly appointed under the Appointments Clause.
The very short ruling (on the merits) is a straight-line application of Lucia.
The case arose when the Mine Safety and Health Administration imposed a civil penalty on Jones Brothers for failing to comply with agency safety requirements. A Commission ALJ upheld the penalty, and the Commission itself affirmed.
The problem: The ALJ was appointed by the Commission's Chief ALJ, and not by the "department head" (the Commission itself).
The Sixth Circuit ruled that Mine Commission ALJs operated almost exactly like the SEC ALJs at issue in Lucia, and so were "inferior officers" under the Appointments Clause:
The Commission's administrative law judges are likewise established by statute . . . and exercise significant authority commensurate with their SEC counterparts. Like SEC administrative law judges, they preside over trial-like hearings. In that role, they shape the administrative record by taking testimony, regulating document production and depositions, ruling on the admissibility of evidence, receiving evidence, ruling on dispositive and procedural motions, and issuing subpoenas. Indeed, they exercise "nearly all the tools of federal trial judges."
And like SEC administrative law judges, they have the authority to issue initial decisions assigning liability and imposing sanctions. After 40 days, those decisions become final decisions of the Mine Commission unless the Commission decides to review them. But such review is available at "the sound discretion of the Commission," not as a "matter of right." This process is nearly identical to the SEC's review process.
The court said that Commission ALJs, like SEC ALJs, are therefore "inferior officers." And as "inferior officers," they have to be appointed by the President, a court, or a head of department. But they weren't: they were appointed by the Commission's Chief ALJ. So they're unconstitutional.
The court recognized that the Commission ratified the appointment of every ALJ. That works fine going forward, but for this case, the court, like the Supreme Court in Lucia, ordered that Jones Brothers get a new ALJ hearing before a validly appointed ALJ who is not the original ALJ.
The court spilled quite a bit of ink determining whether Jones Brothers forfeited the constitutional argument by not raising at the administrative stage. The court said that Jones Brothers did forfeit it, but that the forfeiture was excusable here.
Wednesday, August 1, 2018
The Ninth Circuit struck another blow today against the administration's anti-sanctuary cities policy, ruling in San Francisco v. Trump that the President can't unilaterally withhold federal grants from sanctuary jurisdictions without Congress's say-so.
The ruling is just the latest in a line of similar rulings, and aligns broadly with the Seventh Circuit's ruling in the spring. This ruling is just a little bit different, however, in that it focuses principally on President Trump's original and sweeping Executive Order (and not AG Sessions's interpretive memo). The court rejects the government's attempt to narrow the test of the EO by focusing instead on AG Sessions's memo as the actual government policy. It said that the memo doesn't align with the EO (and is therefore itself ultra vires), and that in any event it's only a post-hoc justification to get the EO to pass muster in the courts.
While the ruling is an outright win for San Francisco and Santa Clara County, the court threw a bone to the administration by vacating the district court's nationwide injunction and remanding the case for reconsideration and further findings on that issue.
The facts--or at least their general outline--is all too familiar by now: In an effort to clamp down on sanctuary jurisdictions, the President ordered that sanctuary jurisdictions come into line with 8 U.S.C. Sec. 1373, which prohibits state and local jurisdictions from restricting their officers from communicating with federal immigration officials. (Other cases have also involved the "notice" and "access" conditions that AG Sessions purported to put on receipt of a certain federal grant in his memo. Those conditions required jurisdictions to provide notice to federal immigration enforcement officials of any detention, and access to state and local facilities for federal immigration enforcement. This ruling didn't deal with those, because it focused on the EO itself.)
The court simply held that under the separation of powers and Congress's Article I, Section 8, power of the purse, it's for Congress, not the Executive, to put conditions on federal spending. The court said that "because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with Section 1373, the President's 'power is at its lowest ebb,'" under Justice Jackson's Youngstown framework. And at the lowest ebb, "[b]ecause the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with Section 1373, there is no reasonable argument that the President has not exceeded his authority." In sum:
Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers.
The court flatly rejected the administration's (pretty incredible) argument that its move to condition funds "is all bluster and no bite, representing a perfectly legitimate use of the presidential 'bully pulpit,' without any real meaning . . . .":
[E]ven if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration's interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration's current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.
(Interestingly, the court said nothing about the constitutionality of Section 1373 itself. That provision is now questionable, in light of Murphy v. NCAA, as a possible "commandeering" of state governments in violation of the anti-commandeering principle. Judge Fernandez, in dissent, distinguished Murphy in a footnote by saying that the Court's articulated "principles behind the anticommnadeering rule" don't apply to Section 1373. But it's not clear how the plain ruling itself doesn't apply to Section 1373. More to come on this, I'm sure.)
The court then vacated the district court's nationwide injunction, because "the present record does not support a nationwide injunction." The court remanded "for a more searching inquiry into whether this case justifies the breadth of the injunction imposed."
(Along the way, the court also ruled that the plaintiffs had standing and that the case was ripe for judicial review.)
Judge Fernandez dissented, arguing that the case wasn't ripe and, in any event, that the EO was constitutional, because, by its plain terms, it only applies "to the fullest extent of the law."
The D.C. Circuit ruled yesterday in Archdiocese of Washington v. WMATA that the Washington Metro Area Transit Authority rule that bans religious content advertising on buses did not likely violate free speech. The court denied the Archdiocese's motion for a preliminary injunction.
Judge Kavanaugh was an original member of the panel, but recused himself from the ruling.
The ruling sides with the government on a key free-speech question: Is religious content necessarily a viewpoint? The court said no.
The case involves WMATA's Guideline 12, which closes the public-transit authority's advertising space to issue-oriented ads, including political, religious, and advocacy ads. (Importantly, the Guideline banned by pro- and con- ads on each topic.) When WMATA, acting pursuant to the Guideline, rejected the Archdiocese's request to place religious ads on buses, the Archdiocese sued, arguing that the denial violated free speech, the Free Exercise Clause, and RFRA, among others. The Archdiocese moved for a preliminary injunction, but yesterday the D.C. Circuit rejected that request.
The court ruled that the Archdiocese was unlikely to succeed on its free speech claim, because buses are a non-public forum, and Guideline 12 permissibly discriminates based on the content, not viewpoint, of the message.
The court rejected the Archdiocese's argument that any content restriction on religious speech was necessarily a viewpoint based restriction on speech because there's a religious viewpoint on any matter. "Notably, there is no principled limit to the Archdiocese's conflation of subject-matter restrictions with viewpoint-based restrictions as concerns religion. Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices."
The court distinguished Rosenberger, Lamb's Chapel, and Good News Club--all of which struck government bans on religious speech as viewpoint-based discrimination. The court said that those cases involved religious-viewpoint discrimination within a defined content of speech. But here, the government simply banned the content of all religious speech, again, both pro- and con- (or otherwise).
[F]ar from being an abrogation of the distinction between permissible subject matter rules and impermissible viewpoint discrimination, each of these cases represents an application of the Supreme Court's viewpoint discrimination analysis, of which Guideline 12 does not run afoul. In each, the Court held that the government had engaged in unconstitutional viewpoint discrimination because the challenged regulation operated to exclude religious viewpoints on otherwise includable topics. An examination of each case demonstrates the contrast between the breadth of subjects encompassed by the forums at issue and WMATA's in which, unlike the restrictions struck down by the Court, Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion.
The court also said that the Archdiocese didn't demonstrate a likelihood of success on its other claims. As to Free Exercise, the court said that Guideline 12 was merely a religiously-neutral rule of general applicability, with no evidence of religious animus, and therefore valid under rational basis review.
Saturday, July 28, 2018
A sharply divided three-judge panel of the Ninth Circuit ruled this week that Hawaii's restriction on the open carrying of firearms violates the Second Amendment.
The ruling fills a gap--and is in tension with--the en banc Ninth Circuit's previous say-so in Peruta II that the Second Amendment doesn't protect concealed carry. (Ninth Circuit law now says the Second Amendment protects open carry, but not concealed carry.) For that reason, the case is primed for en banc review.
The case, Young v. Hawaii, tested Hawaii's limitation on the open carry of firearms to those "engaged in the protection of life and property." The court first said that open carry "falls within the core of the Second Amendment." This required some careful navigating around the en banc court's prior ruling in Peruta II, and even taking that ruling on. The court, after surveying and glossing the history, simply concluded that "even though our court has read these cases to exclude concealed carry from the Second Amendment's protections, the same cases command that the Second Amendment must encompass a right to open carry."
The court went on to say that Hawaii's restriction fails at any level of scrutiny:
Restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only in connection with a militia, it surely does not protect a right to bear arms only as a security guard. The typical, law-abiding citizen in the State of Hawaii is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. It follows that [Hawaii's restriction] "amounts to a destruction" of a core right, and as such, it is infirm "[u]nder any of the standards of scrutiny."
The ruling drew a sharp dissent, on all points. Between that, and the tension with Peruta II, this isn't the last we'll see of this case. Look for en banc review.
Wednesday, July 25, 2018
Court Says Maryland, D.C. Plausibly Alleged Emoluments Claims Against President, Case Can Go Forward
Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. sufficiently alleged emoluments claims against President Trump. The court denied the President's motion to dismiss the case, and will allow the case to move forward.
Recall that Maryland and D.C. sued President Trump for violations of the Foreign and Domestic Emoluments Clauses for payments by foreign and federal and state governments in connection with the President and the Trump Organization's ownership of the Trump International Hotel on Pennsylvania Avenue. The President moved to dismiss for failure to state a claim, arguing that indirect and direct payments to him aren't "emoluments." The court disagreed.
President Trump's motion required the court to define "emolument": Is it a broad term that could encompass the direct and indirect benefits that President Trump receives from his hotel (as the plaintiffs would have it), or is it much narrower, only prohibiting particular kinds of additional, outside compensation for the President? But before the court came to that question, it took a beat to broadly explain its options for constitutional interpretation. The court concluded that it should use text, original public meaning and executive branch practice as precedent to sort it out.
The court said that the text favored the broad interpretation of the term offered by the plaintiffs (and not the much narrower definition offered by the President):
As Plaintiffs point out, the Foreign Clause bans, without Congressional approval, "any present, Emolument, Office, or Title, of any kind whatever . . . . Use of such expansive modifiers significantly undermines the President's argument that this Clause was meant to prohibit only payment for official services rendered in an employment-type relationship. . . .
The phrase "any other Emolument" in the Domestic Emoluments Clause suggests the same broad interpretation of the term.
As to original public meaning, the court said that "[t]he clear weight of the evidence shows that an 'emolument' was commonly understood by the founding generation to encompass any 'profit,' 'gain,' or 'advantage,'" not limited to particular kinds of salary supplements. "Though the Court agreed that mere counting of dictionaries may not be dispositive, is nonetheless remains highly remarkable that "every English dictionary definition of 'emolument' from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief."
As to purpose, the court said that it "does not see how the historical record reflects anything other than an intention that the Emoluments Clauses function as broad anti-corruption provisions," and not a more limited purpose that would simply prohibit the President from receiving only "specifically identified categories of compensation."
Finally, the court said that executive branch precedent and practice also--and "overwhelmingly"--pointed toward a broad definition of "emoluments."
With respect to the Foreign Emoluments Clause, Plaintiffs have alleged that foreign governments or their instrumentalities have patronized the Trump International Hotel, spending government funds to stay at the Hotel, eat at its restaurant, and sponsor events in the Hotel's event spaces. They have done so in some cases with the express intention to cater to the good graces of the President. . . .
[Plaintiffs plausibly plead] that the GSA's abrupt about-face position [first concluding that the President was, and later that the President was not, in violation of his GSA lease for failing to divest] was and is in direct contradiction of the plain terms of the Lease and that, by determining that the Hotel was and is in compliance with the Lease, the Federal Government bestowed upon the President an emolument in violation of the Domestic Emoluments Clause.
In addition to foreign governments patronizing the Hotel, Plaintiffs claim that at least one State--Maine--has patronized the Hotel, spending state funds for its Governor and his entourage to stay at the Hotel and to frequent its facilities during an official visit of those officials to Washington, including an encounter with the President where Presidential action of interest to the Governor good place.
[Plaintiffs plausibly plead] that, in connection with the Hotel, the President has received substantial tax concessions from the District of Columbia.
The court's ruling went to the President acting in his official capacity, not individual capacity. "The Court will address the President's Motion to Dismiss the individual capacity claims against him in a subsequent Opinion."
Before the court ruled on President Trump's motion, it took on Prof. Seth Barrett Tillman's argument that the Foreign Emoluments Clause doesn't extend to the President. The court said that the text, the original public meaning and purpose, and executive branch precedent and practice all point to the conclusion that the Clause does apply to the President.
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.