Monday, February 26, 2018

No Surprises in Fair-Share Fee Oral Arguments

There were no surprises today at oral arguments in Janus v. AFSCME, the case testing whether a state law that permits a public-sector collective-bargaining agreement to require non-union-members to pay a "fair share" fee violates the First Amendment. The justices seemed to divide along predictable (and conventional political) lines, given their votes in other recent cases. The only one we haven't heard from on this issue--and didn't hear anything today--is Justice Gorsuch. If previous positions hold, as expected, the case will turn on his vote.

The case asks whether a state can require non-union members to pay the union for its collective-bargaining work (but not its outside political work) in a public-sector agency shop. The Court held in Abood v. Detroit Board of Education (1977) that it could. In particular, the Court said that the state's interests in avoiding free-riders in the agency shop and promoting and protecting labor peace justified any intrusion into First Amendment rights.

Janus tests whether the Court should overrule Abood and strike mandatory public-sector fair-share fees.

Recall that the issue has come to the Court, directly or indirectly, three times in recent years. In the first two cases, Knox v. SEIU and Harris v. Quinn, the Court sent strong signals that a majority thought fair share fees violated the First Amendment. Then, in 2016, the Court deadlocked 4-4 on the issue in Friedrichs v. California Teachers Association. Justice Scalia participated in oral arguments in Friedrichs--and indicated his position against fair share--but passed away before the Court issued its ruling.

Arguments today largely rehearsed the points made in Friedrichs and that have by now become familiar: on the one side, mandatory fair share represents compelled speech on public issues that a non-union-member (like Janus) may disagree with; on the other side, the interests in Abood justify any mild intrusion into First Amendment rights represented by a fee (and not actual compelled speech). Lurking just below the surface is the political wrangling over public-sector unions and the reality that a ruling against fair share will strike a serious blow to them.

If prior positions hold among the eight justices who participated in Friedrichs, as expected, the case will then turn on Justice Gorsuch. He revealed no cards today, though, staying quiet throughout the arguments.

February 26, 2018 in Association, Cases and Case Materials, First Amendment, News, Oral Argument Analysis, Speech | Permalink | Comments (0)

Court Declines Expedited Review of DACA Recession

The Supreme Court today declined to weigh in on a district court's preliminary injunction requiring the Trump Administration "to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the recession on September 5, 2017." We posted on that injunction here; we posted on a similar injunction out of the Eastern District of New York here.

DOJ asked the Court to review Judge Alsup's injunction, even before the Ninth Circuit had its own say--a request that the Court only rarely grants. Today the Court denied the request.

The Court's brief order simply denied certiorari before judgment, without dissent. It also sent this signal to the Ninth Circuit: "It is assumed that the Court of Appeals will proceed expeditiously to decide this case."

This means that the Court will almost certainly weigh in eventually, but only after the Ninth Circuit has had its own bite at the apple. In other words: today's denial telegraphs nothing about the Court's views on the merits.

The government will press its appeal at the Ninth Circuit. But in the meantime, Judge Alsup's injunction stays in place, and Dreamers can continue to renew. (DOJ didn't seek a stay of Judge Alsup's ruling, so it remains effective unless and until it's stayed or overturned.)

February 26, 2018 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Thursday, February 22, 2018

Sixth Circuit Strikes Tennessee's Discriminatory Retail Alcohol License Law

The Sixth Circuit ruled in Byrd v. Tennessee Wine & Spirits Retailers Ass'n that a state law requiring two-year state residency--and ten-year residency for renewal--for a retailer-alcoholic-beverage license violated the Dormant Commerce Clause.

The ruling, with a partial concurrence and partial dissent, further exposes tensions between the Commerce Clause and the Twenty-First Amendment in the Court's treatment of discriminatory state alcohol regulations.

Tennessee's law says that alcohol retailers have to have a license. In order to get one, they have to show that an individual retailer was a state resident for two years, or that a corporate retailer was completely owned by two-year residents. The residency requirement shoots up to ten years for license renewals.

The Sixth Circuit struck the requirements. The court said that the requirements were facially discriminatory against out-of-state economic interests, and that the state failed to show that nondiscriminatory alternative regulations could achieve the state's goals of protecting the health, safety, and welfare of state residents and using a higher level of oversight and control over liquor retailers.

The court noted a split in the circuits as to the interplay between the Commerce Clause and the Twenty-First Amendment under Bacchus Imports v. Dias and Granholm v. Heald. The ruling deepens that split.

Judge Sutton argued in partial dissent that "these modest requirements" were supported by "the text of the Twenty-first Amendment, the original understanding of that provision's relationship to the Commerce Clause, modern U.S. Supreme Court precedent, and a recent Eighth Circuit decision." Judge Sutton agreed with the majority, however, as to the application of the two-year residency requirement to 100% of a retailer's stockholders and as to the ten-year residency requirement for a renewal.

February 22, 2018 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Check it Out: Epps on Why Thomas is Wrong on the Second Amendment

Check out Garrett Epps's piece in The Atlantic on What Clarence Thomas Gets Wrong About the Second Amendment. The piece responds to Justice Thomas's dissent this week in the Court's decision not to review a Ninth Circuit ruling that upheld California's ten-day waiting period for gun purchases.

February 22, 2018 in Cases and Case Materials, News, Separation of Powers | Permalink | Comments (0)

Tuesday, February 20, 2018

Court Declines to Review California's Ten-Day Waiting Period for Gun Purchases

The Supreme Court today denied certiorari in Silvester v. Becerra, the Ninth Circuit ruling upholding California's ten-day waiting period for gun purchases against a Second Amendment challenge.

The denial is a blow to gun-rights advocates. It means that the Ninth Circuit ruling and California's ten-day waiting period stay on the books.

Justice Thomas filed a lone dissent, arguing that the Ninth Circuit didn't apply sufficiently rigorous scrutiny in judging the law and that the Court has given the Second Amendment second-class status in denying review in this and other Second Amendment challenges:

Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.

But the decision below did just that. Purporting to apply intermediate scrutiny, the Court of Appeals upheld California's 10-day waiting period for firearms based solely on its own "common sense." It did so without requiring California to submit relevant evidence, without addressing petitioners' arguments to the contrary, and without acknowledging the District Court's factual findings. This deferential analysis was indistinguishable from rational-basis review. And it is symptomatic of the lower courts' general failure to afford the Second Amendment the respect due an enumerated constitutional right.

If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.

February 20, 2018 in Cases and Case Materials, News, Second Amendment | Permalink | Comments (0)

Friday, February 16, 2018

Check it Out: Epps on Volokh and Baude, on Abood

Check out Garrett Epps's piece in The Atlantic reviewing Eugene Volokh and William Baude's amicus brief in Janus, the case testing whether fair-share fees for public-sector unions violate the First Amendment.

We last posted on the case here.

Volokh and Baude argue that mandatory fair-share fees for public-sector unions don't even raise free-speech problems--at least any more than other, familiar forms of government, or government-sponsored, speech.

Still, Epps writes that while "[t]he professors' brief is elegant and probably right . . . I doubt that their counsel will slow the court's stampede to overturn Abood."

February 16, 2018 in Cases and Case Materials, First Amendment, News | Permalink | Comments (0)

Sixth Circuit Cites Spokeo: No Standing for Congress-Created Procedural Harm

The Sixth Circuit ruled today that plaintiffs lacked standing to sue a law firm for sending a letter without a disclosure that it was a "communication . . . from a debt collector" in violation of the federal Fair Debt Collection Practices Act.

The ruling is the latest application of the Supreme Court's 2016 ruling in Spokeo that a plaintiff has to show an actual harm for Article III standing purposes, even if Congress purports to create a harm through legislation. (In other words, a Congress-created harm alone isn't enough: a plaintiff still has to show actual harm under the standing rules in order to satisfy Article III.)

The case, Hagy v. Demers, arose when Demers, an attorney for a mortgage lender, wrote to the Hagys' attorney saying that his client wouldn't seek to collect on any deficiency balance on the Hagys' mortgage loan. But Demers didn't include a statement that this was a "communication . . . from a debt collector," as required by the FDCPA. So after the mortgage lender nevertheless hassled the Hagys for payment, the Hagys sued Demers, arguing that the FDCPA created an individual right to a notice that a communication is from a debt collector, and that Demers's failure to include the notice harmed them.

The Sixth Circuit rejected that argument. The court held that under Spokeo the Hagys had to show actual harm to establish Article III standing even if Congress purported to create a harm under the FDCPA, and that they couldn't show that Demers's letter harmed them in any concrete way. (In fact, the court said it helped them.)

The court analogized this separation-of-powers problem to a familiar federalism problem to illustrate the limits on Congress:

Congress may not use its enforcement power under the Fourteenth Amendment to redefine the "free exercise" of religion however it wishes and in the process intrude on the States' existing powers in the area. So too with the horizontal separation of powers at the national level. Congress may not enact a law that eliminates Article III safeguards that permit federal courts only to use the "judicial Power" to hear "Cases" and "Controversies."

And:

We know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. Although Congress may "elevate" harms that "exist" in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.

The court acknowledged the challenges in drawing a line "between what Congress may, and may not, do in creating an 'injury in fact.'" ("Put five smart lawyers in a room, and it won't take long to appreciate the difficult of the task at hand.") But the court said this case was easy: The Hagys didn't even try to show that they suffered some harm outside of the "procedural harm" that Congress created in requiring the disclosure under the FDCPA.

The ruling means that the Hagys' case is dismissed.

February 16, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Wednesday, February 14, 2018

Seventh Circuit Applies Ministerial Exception to Hebrew Teacher at Jewish School

The Seventh Circuit ruled this week that the First Amendment's ministerial exception barred a Hebrew teacher's Americans with Disabilities Act claim against her employer, a Jewish school. The ruling is the first time the Seventh Circuit applied the ministerial exception.

The case, Grussgott v. Milwaukee Jewish Day School, arose when Grussgott, a Hebrew teacher at the school, suffered memory and cognitive issues as a result of medical treatment for her brain tumor. During a call from a parent, Grussgott couldn't remember an event, and the parent taunted her about her memory loss. Grussgott's husband, who happens to be a rabbi, sent an e-mail from Grussgott's work account criticizing the parent for being disrespectful. The school fired her, and she sued under the ADA, arguing that she was fired because of her cognitive issues resulting from the brain tumor.

The Seventh Circuit ruled that the ministerial exception applied and dismissed the case. Applying the "fact-intensive analysis" of Hosanna-Tabor, the court held that while Grussgott's title and the "substance reflected in that title" both tilted against applying the ministerial exception, Grussgott's use of the title and the religious functions she performed both tilted in favor. The court explained:

But Hebrew teachers at Milwaukee Jewish Day School were expected to follow the unified Tal Am curriculum, meaning that the school expected its Hebrew teachers to integrate religious teachings into their lessons. Grussgott's resume also touts significant religious teaching experience, which the former principal said was a crucial factor in the school hiring her in 2013. Thus, the substance of Grussgott's title as conveyed to her and as perceived by others entails the teaching of the Jewish religion to students, which supports the application of the ministerial exception here.

***

Grussgott undisputedly taught her students about Jewish holidays, prayer, and the weekly Torah readings; moreover, she practiced the religion alongside her students by praying with them and performing certain rituals, for example.

The court was careful to say that its analysis is holistic and fact-intensive, and not a rigid and mathematical application of the four "factors" from Hasanna-Tabor. On the other hand, the court also rejected "a purely functional approach to determining whether an employee's role is ministerial."

We read the Supreme Court's decision to impose, in essence, a totality-of-the-circumstances test. And it is fair to say that, under the totality of the circumstances in this particular case, the importance of Grussgott's role as a "teacher of [] faith" to the next generation outweighed other considerations.

February 14, 2018 in Cases and Case Materials, Establishment Clause, Free Exercise Clause, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, February 7, 2018

D.C., Ninth Circuits Reject Bivens Claims Based on Alternative Remedies

The D.C. and Ninth Circuits this week ruled in two very different cases that plaintiffs lacked claims against federal officers or agents for violations of their constitutional rights. The two rulings both rely on a well established Bivens rule, that a plaintiff lacks a Bivens remedy if alternative statutory remedies are available. As such, the rulings don't restrict Bivens because of the Supreme Court's restrictive reading of Bivens last Term in Abbasi. Still, they underscore the limited reach of Bivens.

In the D.C. case, Liff v. Office of Inspector General, a former government contractor sued the Labor Department OIG and the Office of Personnel Management for violating his due process rights after those offices published reports that allegedly caused harm to him and his business. The court held that as a government contractor he had other statutory remedies, including the Tucker Act, the Contract Disputes Act, and the agency procurement protest process under the Federal Acquisition Regulation. As to his privacy claim, the court said the Privacy Act provided relief. The court was untroubled that these remedies wouldn't make him whole: "The question is whether alternative remedies exist, not whether they cover the full breadth of harm that a would-be Bivens plaintiff alleges."

In the Ninth Circuit case, Vega v. U.S., a federal inmate sued halfway-house operators for violating his First Amendment right to access to the courts and procedural due process after they filed a disciplinary report, without evidence, that resulted in his return to federal prison. (He eventually was returned to the halfway house.) The court held that he lacked a Bivens remedy, because the Administrative Remedy Program, the Unit Discipline Committee, or state-law claims could have provided relief.

February 7, 2018 in Cases and Case Materials, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, January 31, 2018

D.C. Circuit OKs CFPB's Single-Director Independence

A sharply fractured and divided en banc D.C. Circuit today rejected a challenge to the independent single director at the Consumer Protection Financial Bureau. The ruling deals a blow to opponents of the CFPB's power structure. But this ruling almost certainly doesn't end the matter; instead, it likely only tees the case up for the Supreme Court, giving this Court a chance to put its gloss on independence within the Executive Branch.

We previously posted on the case here. (This case is not directly related to the litigation over who is the true acting head of the Bureau.)

Opponents of the CFPB power structure argued that Congress violated the Take Care Clause in creating the CFPB with an independent single director. They said that while the Supreme Court has approved independent agencies in the Executive Branch, these have all been boards, not single directors. And creating an independent single director put too much power in the hands of the CFPB director--and took too much power away from the President.

The court today rejected those claims. The multiple opinions run 250 pages, but the majority's approach came down to this:

The Supreme Court eighty years ago sustained the constitutionality of the independent Federal Trade Commission, a consumer-protection financial regulator with powers analogous to those of the CFPB. Humphrey's Executor v. United States. In doing so, the Court approved the very means of independence Congress used here: protection of agency leadership from at-will removal by the President. The Court has since reaffirmed and built on that precedent, and Congress has embraced and relief on it in designing independent agencies. We follow that precedent here to hold that the parallel provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act shielding the Director of the CFPB from removal without cause is consistent with Article II.

And this:

Congress's decision to provide the CFPB Director a degree of insulation reflects it permissible judgment that civil regulation of consumer financial protection should be kept one step removed from political winds and presidential will. We have no warrant here to invalidate such a time-tested course. No relevant consideration gives us reason to doubt the constitutionality of the independent CFPB's single-member structure. Congress made constitutionally permissible institutional design choices for the CFPB with which courts should hesitate to interfere. "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer.

January 31, 2018 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, January 24, 2018

Justice Tightens the Screws on Sanctuary Cities

The Justice Department today sent letters to 23 sanctuary jurisdictions, requesting certain additional documents to show that they are not preventing their officers from sharing immigration information with the feds, in violation of 8 U.S.C. Sec. 1373.

The letters say that Justice will subpoena the documents if a jurisdiction declines to share. The letter outlines other consequences, too:

Should the Department determine your jurisdiction is out of compliance with section 1373, the Department may, as detailed in your award documents, seek return of your FY 2016 grant funds, require additional conditions for receipt of any FY 2017 Byrne JAG funding for which you have applied, and/or deem you ineligible for FY 2017 Byrne JAG funds.

Justice's moves to clamp down on sanctuary jurisdictions have drawn lawsuits by many of those jurisdictions. They argue, among other things, that Section 1373 amounts to unconstitutional commandeering of local officers, that Justice's conditions on their grants fail the conditioned-spending test under South Dakota v. Dole, and that Justice has no authority to impose conditions on federal grants without Congress's say so. We last posted on the suits here.

January 24, 2018 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0)

Monday, January 22, 2018

Tenth Circuit Rejects First Amendment Retaliation Claims

The Tenth Circuit ruled last week that a former sheriff and undersheriff enjoyed qualified immunity against claims that they retaliated against employees for exercising free speech. The ruling means that the case is dismissed.

The case underscores the power of qualified immunity and the challenges that plaintiffs sometimes face in overcoming it, especially when circuit law hasn't addressed the plaintiffs' precise claims.

The case arose when former Sheriff Terry Maketa and Undersheriff Paula Presley took employment actions against employees for their speech in order to influence an upcoming election for sheriff. In particular, Maketa and Presley transferred plaintiff Lieutenant Peck to the midnight shift after Peck refused to deliver to the media a false story concocted by Maketa regarding a missing Internal Affairs document. They opened a criminal investigation against plaintiff Sergeant Stone and Stone's two children (who were also employees of the Sheriff's Office) after Stone expressed political support for the candidate opposed by Maketa and Presley. And they put a group of commanders on administrative leave; confiscated their phones, tablets, weapons, badges, and vehicles; and had them escorted out of the building after they lodged EEO complaints against Maketa and Presley.

The court didn't rule on the merits of the plaintiffs' free speech claims. Instead, it ruled that the defendants didn't violate any of the plaintiffs' clearly established rights under the Garcetti/Pickering test for public employee speech.

As to Peck, the court said that in communicating a message to the media against Maketa's orders, she wasn't clearly speaking as a private citizen (rather than a public employee), as required for a public employee's free speech claim. The court noted that "[i]n some circuits, Lt. Peck's disobedience might affect whether she was speaking as part of her official duties." But because the Tenth Circuit hadn't ruled on this yet, it wasn't clearly established.

As to Stone, the court said that the investigations didn't clearly constitute adverse employment actions as required for a public employee's retaliation claim. Again, the court noted that other circuits have ruled differently--that "[o]ther circuits disagree with one another on the issue" whether a retaliatory criminal investigation "entails a constitutional violation." But because the Tenth Circuit "has not settled the question," the right wasn't clearly established.

Finally, as to the commissioners, the court said that the defendants' actions weren't clearly adverse employment actions.

January 22, 2018 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, January 18, 2018

Seventh Circuit Rules Against Territorial Plaintiffs in Absentee-Voting-Rights Case

The Seventh Circuit ruled that former Illinoisans who now live in Puerto Rico, Guam, and the Virgin Islands lacked standing to challenge the federal Uniformed and Overseas Citizens Absentee Voting Act and lost on the merits in their claims against Illinois after the state rejected their requests for absentee-voter ballots.

The ruling means that former Illinoisans who reside in these territories won't receive an absentee-voter ballot from the state, unless Illinois changes its law.

The plaintiffs, former residents of Illinois but now residents of the territories, sued when Illinois denied them absentee-voter ballots for federal elections in Illinois. They claimed that the UOCAVA and Illinois law defined their territories as part of the United States and thus prohibited them from getting absentee ballots as overseas voters. They claimed that this violated equal protection and their right to travel.

The Seventh Circuit ruled that the plaintiffs didn't even have standing to challenge the UOCAVA. That's because while the UOCAVA defines "the United States" to include these territories, it doesn't prohibit Illinois from providing absentee ballots to the plaintiffs. Illinois law does that. As a result, the court said that the plaintiffs couldn't challenge the federal law, although they could still challenge state law.

As to state law, the court said that Illinois's classification didn't violate equal protection and its denial of absentee ballots didn't violate the right to travel. The court said that the plaintiffs have no fundamental right to vote in federal elections--"absent a constitutional amendment, only residents of the 50 States have the right to vote in federal elections"--and no claim to heightened scrutiny. The court held that Illinois's distinction between Puerto Rico, Guam, and the Virgin Islands (on the one hand) and the Northern Marianas and American Samoa (on the other, where former Illinoisans can get an absentee ballot) passed rational basis review, because at the time that Illinois enacted the distinction, "these two territories were . . . more similar to foreign nations than were the incorporated territories where the plaintiffs reside." (The court said it was OK to look at the state's justification at the time of the distinction, in 1979, instead of now, because "even if . . . the Northern Marianas and American Samoa became more integrated into the United States, it would not help the plaintiffs [who are] injured specifically because Illinois defines their resident territories as within the United States.")

The court summarily rejected the plaintiffs' right-to-travel argument as "borderline frivolous."

January 18, 2018 in Cases and Case Materials, Elections and Voting, Equal Protection, Federalism, News, Opinion Analysis, Travel | Permalink | Comments (0)

Out of State Claimant Has Standing, but no Ex Post Facto Claim for "Sexual Predator" Designation

The Seventh Circuit ruled that a Wisconsin claimant who was convicted of rape, sexual assault, and kidnapping in 1983 in Illinois had standing to challenge his designation under a 2011 Illinois law as a "sexual predator," but that the restrictions that went with his new designation didn't violate the Ex Post Facto Clause.

The case arose when Illinois amended its Sex Offender Registration Act to define "sexual predator" as a person who had been convicted of any felony offense after July 1, 2011, and had been required to register as a sex offender under a conviction that required registration for more than ten years. Under the amendment, sexual predators had increased reporting requirements and certain new restrictions. Anthony Johnson fell into the new classification, because he was convicted of rape in 1983 (and was required to register for ten years) and of felony theft in 2013. Johnson was therefore subject to the reporting requirements and restrictions.

When Johnson moved to Wisconsin, he discovered that he had to meet certain heightened registration requirements there, too--but only because he was designated a "sexual predator" in Illinois. In other words, Wisconsin piggy-backed on Illinois's sexual predator requirements for someone like Johnson. Without his designation as a sexual predator in Illinois, Johnson wouldn't have to meet these requirements in Wisconsin.

Johnson sued Illinois officials, arguing that the 2011 amendments violated the Ex Post Facto Clause. The defendants moved to dismiss for lack of standing.

The Seventh Circuit ruled that Johnson had standing, but that the new requirements didn't violate the Ex Post Facto Clause.

As to standing, the court said that Johnson only had reporting requirements in Wisconsin because of his designation under Illinois law (and that he therefore demonstrated causation), and that if he won his case against Illinois officials, he'd no longer have to meet Wisconsin's requirements (and that he therefore demonstrated redressability).

As to the Ex Post Facto Clause, the court said that the new requirements under Illinois law were a function of his 2013 felony theft conviction, not his 1983 rape conviction: "Had Mr. Johnson not committed a felony after the Act went into effect, he wouldn't be classified as a sexual predator today. But he committed that later felony, and that conviction produced the sexual predator classification of which he complains."

Or, as Justice Jackson wrote in a similar enhanced-penalty case, nearly 70 years ago, Gryger v. Burke (and quoted by the Seventh Circuit):

The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because it is a repetitive one.

January 18, 2018 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, January 17, 2018

New Case Tests Detention at Trump's Guantanamo

The Center for Constitutional Rights filed a habeas corpus petition in federal court last week on behalf of eleven detainees challenging their continued, and, under President Trump, apparently indefinite, detention at Guantanamo Bay.

The petitioners have all been detained at Guantanamo without charge or trial, between ten and sixteen years. Two have been cleared for release.

The petitioners argue that their claim is different than prior Guantanamo habeas petitions--"as it has to be," given President Trump's position on Guantanamo:

The two prior presidential administrations released a total of nearly 750 men. They did so by making case-by-case determinations based on an individual detainee's circumstances in a manner that was purportedly tailored to the executive branch's interest in national security. President Trump, in contrast to his predecessors, has declared and is carrying out his intention to keep all remaining detainees in Guantanamo, regardless of their individual circumstances--presumably even those the executive branch previously determined need no longer be detained.

The petitioners argue that their detention violates due process and exceeds authority under the 2001 Authorization for Use of Military Force.

As to due process, they argue that the Due Process Clause applies at Guantanamo for the same functional reason why the Suspension Clause applies there under Boumediene: "The Boumediene Court's functional analysis led to recognition of the applicability of the Suspension Clause in Guantanamo. Therefore, at least some measure of the Due Process Clause must also reach Guantanamo because there are no practical barriers that would apply to one provision but not the other." On the merits, they argue that their lengthy detention, without charge or trial, violates the Due Process Clause's durational limits on detention; that indefinite detention cannot be justified based on a loose and dated standard; and that two of them have already been cleared for release.

As to the AUMF, petitioners claim that it doesn't authorize indefinite, unreviewable detention; that the laws of war don't authorize this kind of detention; and that the AUMF itself has become stale.

January 17, 2018 in Cases and Case Materials, Due Process (Substantive), Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Daily Read: Was Marbury v. Madison Right? Justice Kennedy Wants to Know

The United States Supreme Court heard oral arguments in Dalmazzi v. United States in which the complicated issue is whether 10 U.S.C. § 973(b)(2)(A)(ii), the so-called dual-officeholding ban, prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.”  The case is made more complicated by the threshold issue of whether the Court has power to review the case.  Amy Howe has a good discussion of the oral argument on SCOTUSblog.

A notable highlight of the argument was when Justice Kennedy asked ConLawProf Stephen Vladeck, arguing for the petitioners, whether Chief Justice John Marshall was correct in  Marbury v. Madison.

Lossy-page1-762px-Chief_Justice_Marshall_(NYPL_Hades-256630-EM14964).tiffJUSTICE KENNEDY:  Do you think Marbury versus Madison is right?

(Laughter.)

JUSTICE KENNEDY:  Particularly as to the interpretation with such exceptions as Congress may make.

VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but [Ex Parte] Bollman [1807].

And if I may, Mr. Chief Justice, I'd like to reserve my time.

 

 

ConLawProfs and ConLaw students engaging with Marbury v. Madison could not ask for a more current example of the continuing relevance of the case.  And for enhanced learning, try the CALI Lesson on the case or these ideas.

January 17, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Oral Argument Analysis, Profiles in Con Law Teaching, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Tuesday, January 16, 2018

DOJ to Appeal DACA Ruling

The Justice Department announced today that it intends to petition for immediate Supreme Court review of Judge Alsup's ruling last week that put a temporary halt to the administration's DACA-repeal effort.

From the press release:

"It defies both law and common sense for DACA--an entirely discretionary non-enforcement policy that was implemented unilaterally by the last administration after Congress rejected similar legislative proposals and courts invalidated the similar DAPA policy--to somehow be mandated nationwide by a single district court in San Francisco," said Attorney General Jeff Sessions.

January 16, 2018 in Cases and Case Materials, Executive Authority, News | Permalink | Comments (0)

Thursday, January 11, 2018

Court Rules for Trump (Again) in CFPB Director Dispute

Judge Timothy J. Kelly (D.D.C.) yesterday denied Leandra English's motion for a preliminary injunction against President Trump in the dispute over the acting directorship of the Consumer Financial Protection Bureau.

We last posted, on Judge Kelly's denial of a temporary restraining order, here.

Recall that outgoing director Richard Cordray appointed English as deputy in late November. Under Dodd-Frank, this meant that English would become acting director upon Cordray's resignation. But at the same time, President Trump appointed OMB Director John Michael Mulvaney as acting director pursuant to his authority under the Federal Vacancies Reform Act. As a result, both English and Mulvaney claimed title to acting director. English sued to get the courts to recognize her as the actual acting director.

Judge Kelly ruled that English was unlikely to succeed on the merits of her claim. According to the court, that's because Dodd-Frank and the FVRA can be read in harmony--in favor of the President's authority to appoint an acting director over Dodd-Frank's provision automatically assigning the post to the deputy:

The best reading of the two statutes is that Dodd-Frank requires that the Deputy Director "shall" serve as acting Director, but that under the FVRA the President "may" override that default rule. This reading is compelled by several considerations: the text of the FVRA, including its exclusivity provision, the text of Dodd-Frank, including its express-statement requirement and Deputy Director provision, and traditional principles of statutory construction.

The court said that constitutional avoidance principles confirmed this result. In particular,

English's interpretation of Dodd-Frank potentially impairs the President's ability to fulfill his obligations under the Take Care Clause. Under English's theory, because Cordray installed her as Deputy Director, she must remain acting Director--no matter whom the President would prefer in that role--until a new permanent Director is appointed. . . .

Under English's interpretation, however, Cordray could have named anyone the CFPB's Deputy Director, and the President would be virtually powerless to replace that person upon ascension to acting Director--no matter how unqualified that person might be. That alone threatens to undermine the President's ability to fulfill his Take Care Clause obligations. And this problem is compounded by another unique feature of the directorship of the CFPB: it is vested with unilateral, unchecked control over the CFPB's substantial regulatory and enforcement power.

The court said that nothing in Dodd-Frank prevented the President from appointing the acting OMB chief to simultaneously serve as CFPB Director.

The ruling is only on English's motion for a preliminary injunction--and doesn't finally settle the directorship dispute--but it foretells the ultimate result in this court.

January 11, 2018 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, January 10, 2018

District Court Halts DACA Repeal

Judge William Alsup (N.D. Cal.) yesterday issued a preliminary injunction requiring the Trump Administration "to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017."

The order requires the government to continue to administer DACA, including allowing DACA enrollees to renew their enrollments, despite the Administration's announcement last year that it would halt the program. The order also potentially complicates negotiations over a congressional fix.

We last posted on the case and other challenges to DACA rescission here.

The court ruled that the plaintiffs were likely to succeed on the merits of their challenge to President Trump's repeal of the DACA program. In short, the court ruled that DACA was legal when adopted; that the government's stated reason for repealing it (that DHS lacked authority to implement it) was wrong as a matter of law; and that the government's post-hoc rationalization for repeal (the "litigation risk" it faced in defending DACA) didn't count, and, in any event, was arbitrary and capricious.

This order holds that, in light of our own court of appeals' reasoning . . . and in light of the analysis of the Office of Legal Counsel of the United States Department of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise and must be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

Along the way, the court distinguished the DAPA program, ruled illegal by the Fifth Circuit and affirmed by an equally divided Supreme Court, and said that the reasons why DAPA exceeded DHS authority don't apply to DACA:

While at least some of the majority's reasons for holding DAPA illegal would apply to DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion stated. An important criticism against DAPA would not apply against DACA, namely the fact that Congress had already established a pathway to lawful presence for alien parents of citizens (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no such analogue in the INA. And, there is a difference between 4.3 million [covered by DAPA] and 689,800 [covered by DACA]. Finally, the criticism that DACA has been mechanically administered without the exercise of discretion in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum, the DAPA litigation was not a death knell for DACA.

The ruling will surely be appealed.

January 10, 2018 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, January 9, 2018

Sixth Circuit OKs Voting on Tennessee State Constitutional Abortion Amendment

The Sixth Circuit ruled today that voting rules on a proposed state constitutional amendment providing that the state constitution is not to be construed as protecting the right to abortion did not violate due process and equal protection. The ruling means that the state constitutional amendment can go into effect (although, given the federal right to abortion, it'll have no practical impact).

The case, George v. Hargett, arose when Tennessee voters approved an amendment to the Tennessee Constitution prohibiting construction of the state constitution to secure or protect the right to abortion or to require funding for abortion. Opponents of the measure sued, arguing that the voting rules for state constitutional amendments, found in Article XI, Section 3, of the state constitution, violated due process and equal protection.

Article XI, Section 3, provides:

if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.

The language is vague as to whether a vote must vote in both the gubernatorial election and on the amendment, or whether a voter could vote on the amendment without also voting in the gubernatorial election. (State practice said the latter.) So during the campaign, amendment supporters urged voters to vote for the proposed amendment, but not to vote in the gubernatorial election, in order to gain a numerical advantage. In contrast, amendment opponents urged voters to vote in both the gubernatorial election and on the amendment, in order to gain their own numerical advantage.

Tennessee voters voted in favor of the amendment. And for the first time in the state's history, the number of ballots cast on the amendment question exceeded the number of ballots in the gubernatorial election (reflecting the strength of the political campaign in favor of the amendment). This made the math easy: under Article XI, Section 3, the number of votes in favor of the amendment clearly exceeded half the number of total votes in the gubernatorial election.

Amendment opponents sued, arguing that Article XI, Section 3, under the prevailing interpretation, violated due process and equal protection. (They also argued for a different interpretation of Article XI, Section 3--that only those voters who also voted for governor could vote for the amendment--but the Sixth Circuit deferred to a final state court ruling that voters could vote on an amendment without also voting for governor.)

The Sixth Circuit rejected those claims. The court said that there was no due process violation, because no "voter's right to vote was burdened by government action." In short, the voting rules (set by the state court) allowed everyone to vote on the amendment, and counted all the votes on the amendment. The court said that there was no equal protection violation, because "[e]very vote cast--on the amendment and in the governor's race--was accorded the same weight."

The ruling ends the challenge and means that Tennessee's Constitution now contains a provision that prohibits an interpretation to secure or protect the right to abortion. But again: This'll have no practical effect on the right to abortion in the state, given the federal constitutional right to abortion.

January 9, 2018 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)